CFMEU v Bechtel Construction (Australia) Pty Ltd & Anor

[2014] FWCFB 8971

[2014] FWCFB 8971

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Construction, Forestry, Mining and Energy Union-Queensland Branch

v

Bechtel Construction (Australia) Pty Ltd and Another

(C2014/1475)

VICE PRESIDENT CATANZARITI

SENIOR DEPUTY PRESIDENT RICHARDS	CANBERRA, 15 DECEMBER 2014
COMMISIONER BOOTH

Appeal against decision in transcript and order PR554268 of Senior Deputy President
Watson made at Brisbane on 13 August 2014 in matter number C2014/5848.

[1] On Wednesday 13 August 2014, Senior Deputy President Watson made an order[1](the Order) that industrial action must stop, not occur and not be organised pursuant to s.418 of the

Fair Work Act 2009 (the Act). The reasons for the Senior Deputy President’s decision were

recorded in transcript[2](the Decision). The Construction, Forestry, Mining and Energy Union- Queensland Branch (the CFMEU) has brought an appeal against the Senior Deputy President’s Decision and Order pursuant to s.604 of the Act.

[1]PR554268.

[2]Transcript, C2014/5848, 13 August 2014, PN153-PN162.

[2] The Senior Deputy President’s decision was made in the context of ongoing industrial disputation between the parties. The Senior Deputy President had made a previous order pursuant to s.418 of the Act. As the Decision was issued in transcript, it is worth setting out at some length here:[3]

“Bechtel contends that the requirements of section 413(1)(c) have not been met in light of the failure by the CFMEU to comply with my interim and final orders of 11 August in that it did not comply with the publication orders in clauses 4.41 and did not cease encouraging industrial action against it under clause 4.43. Bechtel contends that the employees have contravened the orders in continuing their industrial action following the making of my order and the publication of my decision.

The CFMEU argues that whilst it accepts the CFMEU has not fully complied with the publication orders in not publishing the final order and interim decision, that such action was in error and not calculated or intentional action and cannot meet the threshold required for the finding of a contravention of orders. Further, it argues that the evidence of the organisation of industrial action by the CFMEU is insufficient to warrant the serious step of denying access to protected industrial action.

[2014] FWCFB 8971

Section 418 of the Act requires that if it appears to the Fair Work Commission that industrial action by one or more employees that is not or would not be protected action is happening, threatened, impending or probable or is being organised, the commission must make an order that the industrial action stop not occur or not be organised for a period specified in the order.

On the uncontested evidence before me, it appears to me that industrial action is threatened so much so as evident from the 10 August notice of the protected industrial action to commence on 14 August and this being organised by the CFMEU. It further appears to me that the employees who continued their industrial action subsequent to the publication of my interim and final orders, the CFMEU have contravened those orders, being orders that relate to industrial action relating to the agreement.

In respect to the CFMEU, the failure to give effect to the publication order is conceded, but the CFMEU seek to diminish significance for the purpose of section 413. It appears to me that the failure to give effect to the publication orders was not erroneous or an oversight. The effect of the oversight was significant. Failure to publish my interim decision, which was published to provide clarity as to the basis for my finding that the industrial action taken in reliance to the 31 July and 7 August notices was unprotected action and to provide clarity as to the effect of my order. As a result, the non-compliance with the publication order had the effect of allowing that uncertainty to remain and provide scope for the continuation of industrial action on the basis that the action was protected industrial action.

The correspondence in TPP6 to 9 to Mr Blair’s statement today, the preface to the publication of the message required by clause 4.41 in the 4.41(2) in the CFMEU publications, the evidence by Bechtel witnesses as to the statements of CFMEU officials supports the finding of the failure of the CFMEU to give effect to my order was designed to maintain the position that the orders did not apply to some of the industrial action being undertaken. I find that the employees who continue to undertake industrial action, the CFMEU, contravened my orders which related to industrial action relating to the agreement.

In those circumstances, it appears that industrial action threatened by the 10 August notice to commence at 12.01 on 14 August is not protected industrial action. As a consequence, I am required to issue an order under section 418 of the Act. I will publish an order in the terms sought by Bechtel. It is unnecessary, again, to determine the additional issues raised by Bechtel in paragraph 4.18 of its current application. I will now adjourn and shortly publish an order.”

[3]Ibid PN156-PN162.

[3] The CFMEU has identified two grounds of appeal against the Senior Deputy President’s Decision and Order. The two grounds of appeal can be summarised as follows:

 The Senior Deputy President misconstrued s.413(5) of the Act in finding that the

common requirements that apply for industrial action to be protected industrial action had not been met due to the CFMEU’s non-compliance with earlier orders of the Fair Work Commission (the Commission).

 The Senior Deputy President erred in that the alleged contraventions were of orders

that were of no legal force and effect.

[2014] FWCFB 8971

[4]        Section 413(5) of the Act provides as follows:

“Compliance with orders

(5) The following persons must not have contravened any orders that apply to them and that relate to, or relate to industrial action relating to, the agreement or a matter that arose during bargaining for the agreement:

(a) if the person organising or engaging in the industrial action is a bargaining
representative for the agreement--the bargaining representative;

(b) if the person organising or engaging in the industrial action is an employee who will be covered by the agreement--the employee and the bargaining representative of the employee.”

[5] The CFMEU argued that the Commission does not have the jurisdiction to determine whether or not there has been a contravention of an order for the purposes of s.413(5) of the Act. The contravention of an order of the Commission made pursuant to s.418 of the Act is a contravention of a civil penalty provision.[4]The CFMEU argued that an administrative body is not properly empowered to determine whether or not a person has contravened a civil penalty provision. The CFMEU further argued that s.413(5) of the Act is not conditioned on the Commission being satisfied that a party has contravened an order, nor is it provided that the Commission can relevantly act if it “appears” that a person has contravened an order. It was submitted that the use of the past tense in s.413(5) makes it clear that a contravention must have been found by a court to have occurred before the disentitling aspect of that subsection is applicable, and that the Commission’s opinion or satisfaction is not relevant.

[4]See Fair Work Act 2009 ss. 421 and 539.

[6] In relation to the CFMEU’s submission that the alleged contraventions were of orders that were of no legal force or effect, given the dismissal of the CFMEU’s appeal against the

relevant orders by this full bench, it is not necessary to consider this ground of appeal.[5]

[5]See Construction, Forestry, Mining and Energy Union v Bechtel Construction (Australia) Pty Ltd and another [2014]

[7] Bechtel Australia Pty Limited and Bechtel Construction (Australia) Pty Limited’s (collectively, “Bechtel”) submitted that the CFMEU’s interpretation of s.413(5) is unduly narrow and that if Parliament had intended for the section to require a judicial finding of contravention by a court then it could have done so. Bechtel did not dispute that the Commission is not capable of determining contraventions of civil remedy provisions. However, Bechtel submitted that s.413(5) does not require a judicial finding of contravention, rather it was submitted that the provision requires that the specified people must not have contravened any relevant orders.

[8] Bechtel submitted that the CFMEU’s interpretation could not be correct when Part 3-3 of the Act is considered as a whole. It was submitted that s.418 of the Act requires the Commission to make an order if it appears to the Commission that industrial action by one or more employees or employers that is not, or would not be, protected industrial action is happening, threatened, impending, probable or is being organised. Further, it was submitted that s.420 of the Act requires that, as far as practicable, the Commission must determine an application for an order under s.418 within 2 days after the application is made. It was submitted that it is clear that s.418 is intended to apply in situations in which there is a sense of time urgency, and that it would not be feasible to obtain a judicial finding of contravention [2014] FWCFB 8971

in this context. Bechtel submitted that its interpretation was consistent with prior authorities

and the other common requirements provided in s.413(6).

Permission to Appeal

[9] Appeals brought pursuant to s.604 of the Act involve an appeal by way of re-hearing, and the Commission’s powers on appeal are exercisable only if there is error on the part of the

primary decision-maker.[6]An appeal may only be made with the permission of the

[6]Coal and Allied v AIRC (2000) 203 CLR 194 at 203–4 per Gleeson CJ, Gaudron and Hayne JJ.

Commission; there is no right to appeal.

[10] If we are satisfied that it is in the public interest to do so, we must grant permission to

appeal. In GlaxoSmithKline Australia Pty Ltd v Colin Makin[7]a Full Bench summarised the
concept of public interest in the following terms:

[7][2010] FWAFB 5343 at [27].

“Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...”

[11] It is necessary to note that the Senior Deputy President’s Order expired on 13 October 2014. This appeal was heard on 7 November 2014. In these circumstances, allowing

permission to appeal in this matter could serve no practical purpose.[8]Further, we are satisfied

[8]See MUA v Patrick Stevedores Holdings Pty Ltd [2013] FWCFB 7736 at [41] and Maritime Union of Australia, The v

that there was sufficient material before the Senior Deputy President to make an order pursuant to s.418 of the Act without solely relying on the issue of whether the common requirements set out in s.413 had been satisfied. Thus, even if the CFMEU were successful in relation to its first ground of appeal, we would not quash the Senior Deputy President’s Order in an appeal by way of re-hearing.

Conclusion

[12]      We are not satisfied that there is any utility in allowing permission to appeal. The

appeal is dismissed.

VICE PRESIDENT

Appearances:

F Parry QC with C Murdoch of Counsel for Bechtel Construction (Australia) Pty Ltd and

Bechtel Australia Pty Limited (Bechtel).

E White for the Construction, Forestry, Mining and Energy Union.

[2014] FWCFB 8971

Hearing details:

2014.
Brisbane:

November 7.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR558904>

FWCFB 8490.

Harbour City Ferries Pty Ltd [2014] FWCFB 3858.