CEPU and CFMEU v Abigroup Contractors Pty Ltd - [2013] FWCFB 453

Note: Judicial review of this decision [FCA-QUD87/13] pending.

[2013] FWCFB 453

The attached document replaces the document previously issued with the above code on 25 January 2013.

The reference to PR527575 in paragraph [5] of the Statement issued by Senior Deputy President Richards on 29 August 2012, quoted in paragraph [6] of the Decision of the Full Bench on 25 January 2013 has been corrected to refer to PR527573.

Sarah King

Associate to Vice President Watson

5 February 2013.

[2013] FWCFB 453

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia;

Construction, Forestry, Mining and Energy Union

v
Abigroup Contractors Pty Ltd
(C2012/1042) (C2012/5202)

VICE PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT WATSON
COMMISSIONER GOOLEY

SYDNEY, 25 JANUARY 2013

Appeal against decision [[2012] FWA 7654] and order [PR528753] of Senior Deputy President Richards at Brisbane on 5 September 2012 in matter number C2012/5149 - industrial action - whether procedural fairness afforded - whether longer adjournment should have been granted - whether jurisdiction to make order - clarity of the order - Fair Work Act 2009 - ss. 418, 604.

Introduction

[1] This decision concerns applications for permission to appeal by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and Construction, Forestry, Mining and Energy Union (CFMEU) against a decision of Senior Deputy President Richards on 5 September 2012 to make orders pursuant to s.418 of the Fair Work Act 2009 (the Act). The orders relate to an application by Abigroup Contractors Pty Ltd (Abigroup) seeking the cessation of industrial action occurring on site at the Queensland Children’s Hospital Project (the QCH Project) in Brisbane.

[2] At the hearing of the appeal in Brisbane on 10 October 2012, Mr E. White appeared on behalf of the CEPU, Mr T. O’Brien appeared on behalf of the CFMEU, Mr J. Murdoch SC appeared on behalf of Abigroup and Mr A. Herbert appeared on behalf of the Attorney General and Minister for Justice, Queensland (the Attorney).

Background and the decision under appeal

[3] The QCH Project is a major public health asset project valued at approximately $800m. During the course of 2012 it has been subject to significant disruption from industrial action.

[4] On 10 February 2012 Senior Deputy President Richards made orders under s.418 of the Act that industrial action on the site stop. Those orders expired on 1 March 2012. His Honour made further s.418 orders on 11 May 2012 that expired on 11 June 2012. On 6 August 2012, his Honour made a third set of orders that were expressed to apply until 5.00pm on 3 September 2012.

[5] His Honour subsequently dealt with a large number of dispute notifications lodged by subcontractors in relation to stoppages at the site.

[6] On 29 August his Honour issued a statement in which he said: 1

“[5] I issued orders (in PR527573) on 6 August…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FWCFB 453
Decision Date: 25 JANUARY 2013

CaseChat Overview and Summary

The case involved an appeal against a decision by Senior Deputy President Richards in the Fair Work Commission (FWC) at Brisbane, dated 5 September 2012, concerning industrial action. The applicants, CEPU and CFMEU, challenged the decision and an order made by the FWC in matter number C2012/5149, asserting that procedural fairness had not been afforded and that a longer adjournment should have been granted. The respondents, Abigroup Contractors Pty Ltd, defended the FWC’s decision and order. The crux of the dispute was whether the FWC had properly exercised its jurisdiction and whether the order was clear and enforceable.

The primary legal issues the court had to address were whether the FWC had observed procedural fairness in its decision-making process, whether a longer adjournment should have been granted to the applicants, and whether the FWC had the jurisdiction to make the order in question. Additionally, the court needed to determine if the order was clear and precise enough to be enforceable. These issues revolved around the interpretation and application of the Fair Work Act 2009, particularly sections 418 and 604, which pertain to procedural fairness and the making of orders by the FWC.

The court meticulously examined the FWC's decision and found that procedural fairness had indeed been afforded to the parties. It noted that the FWC had followed proper procedures and provided adequate opportunity for the applicants to present their case. Regarding the adjournment, the court held that the FWC had reasonably exercised its discretion and did not find fault in the duration of the adjournment granted. Concerning the jurisdiction, the court found that the FWC had correctly exercised its authority under the Fair Work Act. Finally, the court concluded that the order was clear and unambiguous, allowing for its enforcement without ambiguity. Consequently, the appeal was dismissed, affirming the FWC's decision and order.

Orders