Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia Communications Division New South Wales Postal and Telecommunications Branch v James Craig Metcher

[2016] FWC 8731

[2016] FWC 8731

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.615A - Application for the President to direct a Full Bench to perform a function

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia – Communications Division – New South Wales Postal and Telecommunications Branch

v

James Craig Metcher
(RE2016/154)

JUSTICE ROSS, PRESIDENT SYDNEY, 6 DECEMBER 2016

Referral to a Full Bench - Fair Work Act 2009 (Cth) - ss 512, 615A - application refused.

[1] The Minister has applied for a direction that matter RE2016/154 be referred to a Full Bench, pursuant to s.615A of the Fair Work Act 2009 (Cth) (the ‘FW Act’). Before turning to the s.615A application it is necessary to say something about the substantive matter to which the referral application relates.

[2] Matter RE2016/154 is an application by the Communications Electrical Plumbing Union – NSW Postal & Telecommunications Branch for an entry permit for Mr James Metcher. It is convenient to refer to the Applicant in that matter as the CEPU. Mr Metcher holds the office of Branch Secretary of the NSW Postal and Telecommunications Branch of the CEPU.

[3] Section 512 authorises the Commission, on application, to issue an entry permit to an official of an organisation if the Commission is satisfied that the official is a ‘fit and proper person’ to hold the permit. An entry permit allows the holder of the permit to exercise rights of entry onto the premises of employers which are conferred by Div.2 of Pt.3-4 of the FW Act and, additionally, under s.494 the holding of an entry permit is necessary for an official of an organisation to be able to exercise rights of entry conferred by State or Territory occupational health and safety legislation. In assessing whether an official is a fit and proper person for the purposes of s.512, s.513(1) requires the Commission to take into account a number of specified matters (described as ‘permit qualification matters’). One of the ‘permit qualification matters’ at s.513(1)(g) is ‘any other matters that the FWC considers relevant’.

[4] In a decision 1 issued on 9 May 2016, Deputy President Lawrence was satisfied that Mr Metcher was ‘a fit and proper person’ and granted the application for an entry permit.2

[5] On 25 October 2016, Mr Chris Enright, Director – Regulatory Compliance Branch within the Commission, provided a report (the ‘Enright Report’) to Vice President Watson, as head of the Organisations Panel within the Commission. The Enright Report requested that consideration be given to the variation or revocation of Deputy President Lawrence’s decision of 9 May 2016 on the basis that Mr Metcher had failed to disclose that in August 2007 he had been charged with two counts of assault occasioning actual bodily harm and four counts of common assault, arising out of incidents which occurred on the same day, and that the charges were the subject of court proceedings in June 2007. It is convenient to note here that I have had regard to the Enright Report in my consideration of the application before me.

[6] On 27 October 2016, Mr Enright wrote to the CEPU in the following terms:

‘RE2016/154- Entry Permit Issued to Mr James Metcher- Secretary- NSW Postal and Telecommunications Branch of the CEPU

For the purposes of appropriate disclosure by the Fair Work Commission (the Commission), I write to advise that on 25 October 2016, in my role as the Delegate of the President of the Fair Work Commission (the Commission) for the administration of entry permits, I submitted a Memorandum to Vice President Watson of the Commission, in his role as the Panel Head for Registered Organisations matters.

In the Memorandum, I requested that the Commission give consideration to varying or revoking a decision of the Commission in [2016] FWC 2877 under s 601 of the Fair Work Act 2009 (the Act) relevant to the issue of an entry permit to Mr James Metcher of the CEPU - RE2016/154.

The circumstances of my request related to what I regard to be a serious issue of non-disclosure by Mr Metcher concerning matters which were heard and determined at the Blacktown Local Court on 30 June 2008, in relation to offences for which Mr Metcher was charged on 5 August 2007.

In my view, the non disclosure of the matters which were heard and determined at the Blacktown Local Court on 30 June 2008 should have been disclosed by Mr Metcher and by officials of the CEPU in applications made on behalf of Mr Metcher in 2009, 2010, 2013 and most recently in a permit application and subsequent hearing before Deputy President Lawrence in matter RE2016/154.

It is of course now entirely a matter for Vice President Watson as to whether and if so how, the matter will proceed.’

[7] Vice President Watson subsequently allocated the matter to Deputy President Lawrence. The Deputy President then listed the matter, on his own motion, for hearing on 2 December 2016 and issued directions for the filing of submissions and evidence.

[8] As mentioned earlier, the Minister has applied for the matter before the Deputy President to be referred to a Full Bench. In support of the referral application the Minister states:

‘In my view, the extent of apparent non-disclosure by Mr Metcher of charges against him, and the nature of those charges, raises significant public interest considerations which warrant the attention of the Full Bench.’ 3

[9] The referral application was initially listed for hearing at 5pm on Monday 28 November 2016. At about 10am on 28 November 2016, the solicitors for the CEPU and Mr Metcher wrote to my Chambers in the following terms:

‘We write to advise the Commission of the following instructions we have received, which impact significantly on the proceedings.
Mr Metcher has instructed us that, as he has recently stood aside from the duties of Branch Secretary of the Branch, he does not presently need to exercise a right of entry to premises under either the Fair Work Act 2009 or the Work Health and Safety Act 2011. In consequence of those circumstances he has requested the Branch to return the right of entry permits he has under those Acts to the Fair Work Commission.
We are instructed that the Branch will be attending to the return of those permits to the Commission as soon as possible, accompanied by a request that they be administratively cancelled. That should occur either today or tomorrow.
Notwithstanding the foregoing, Mr Metcher and the Branch reserve the right to make an application to the Commission for the issue of fresh right of entry permits to Mr Metcher when such an application is appropriate.
In these circumstances we would respectfully submit that the current listing for telephone directions is not required. We also respectfully submit that once the permits are returned to the Commission the current listing before Deputy President can be vacated and the proceedings treated as closed.’

[10] Shortly after 12 noon on 28 November 2016, the parties were advised that the listing for 5pm that day was cancelled, in light of the above correspondence. Later that day, at about 3.30pm, my chambers received correspondence from the Australian Government Solicitor (AGS), acting on behalf of the Minister, indicating that the Minister continued to press the referral application. Consequently, the referral application was listed for hearing at 9am on Wednesday 30 November 2016.

[11] The AGS correspondence referred to above states, relevantly, as follows:

‘2. We refer to the letter of Mr Punch of Carroll and O'Dea Workplace Solutions of today's date on behalf of the Branch of CEPU referred to above and Mr Metcher. We also refer to the telephone directions hearing that was listed before his Honour at 5pm this afternoon and which has since been cancelled.

3. We consider that the proposal in Mr Punch's letter of 28 November 2016 for treating these proceedings as closed is not satisfactory and does not effectively dispose of the proceedings.

3.1. An administrative cancellation as proposed is not provided for in the Fair Work Act
2009.

3.2. Mr Metcher's entry permit dated 10 May 2016 is stated to be granted to Mr Metcher of CEPU under s 512. It is stated to expire when he ceases to be an official of the CEPU. An official is defined by the Act to mean, a person who holds an office in or, is an employee of the association. In presently standing aside from his role as Secretary of the CEPU it is not clear that Mr Metcher has ceased to be an official for the purposes of the Act.

3.3. The proposal would leave standing the decision of Deputy President Lawrence of 9 May 2016 (in proceedings RE2016/154 and reported as [2016] FWC 2877) that Mr Metcher is a fit and proper person entitled to be issued an entry permit.

3.4. The proposal would leave unresolved the issues that have resulted in the Commission considering at its own initiative the possible revocation of its decision of 9 May 2016 and in Mr Metcher at present standing aside from his role as Secretary.

4. In our view the Commission should proceed to decide under s 603 of the Fair Work Act 2009 whether or not to revoke or vary the decision of Deputy President Lawrence of 9 May 2016 and should consider whether or not Mr Metcher is a fit and proper person to hold an entry permit. That issue should be addressed now, so that the Commission can take account of the assault charges laid against Mr Metcher in August 2007, noting that he will be entitled to the protections of the spent conviction provisions after 10 years from the laying of the charges in August 2007.’

[12] At the hearing the AGS requested access to the Enright Report, as well as the directions issued by Deputy President Lawrence. The solicitors for the CEPU and Mr Metcher did not object to the AGS’s request.

[13] The AGS was provided access to the Enright Report and the Deputy President’s directions, and was given a period of time in which to consider whether any further submissions would be made. The AGS made subsequent extension requests for the purposes of seeking instructions as to whether the Minister sought an opportunity for further submissions. At about 4pm on 2 December, the AGS wrote to my Chambers in the following terms:

‘…the Enright Report provides context to the public interest considerations in this matter and therefore it is desirable for the President to take into account the content of that report’

[14] The AGS did not seek a further hearing in respect of the application and nor did the solicitors for the CEPU and Mr Metcher.

[15] Section 615A of the FW Act states:

‘615A When the President must direct a Full Bench to perform function etc.

(1) The President must direct a Full Bench to perform a function or exercise a power in relation to a matter if:

(a) an application is made under subsection (2); and
(b) the President is satisfied that it is in the public interest to do so.
Note: The President gives directions under section 582.

(2) The following persons may apply to the FWC to have a Full Bench perform a function or exercise a power in relation to a matter:

(a) a person who has made, or will make, submissions for consideration in the matter;
(b) the Minister.

[16] In relation to the s.615A application, the issue for determination is whether I am satisfied that it is in the public interest to refer the matter to a Full Bench. The expression ‘in the public interest’, when used in a statute, imports a discretionary value judgment to be made by reference to undefined factual matters and confined only by the subject matter, scope and purpose of the relevant statute. 4

[17] Sections 577 and 578 of the FW Act are relevant to the exercise of the President’s powers under ss 394 and 615A.

[18] Section 577 of the FW Act provides as follows:

‘The FWC must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.
Note: The President also is responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581).’

[19] Section 578 directs the Commission to take into account, among other things, the objects of the FW Act and ‘equity, good conscience and the merits of the matter’. Section 581 is also apposite. It provides, relevantly, that the President is responsible for ensuring that the Commission performs its functions and exercises its powers in an efficient manner.

[20] At the commencement of the hearing on 30 November, I informed the parties that the General Manager had informed me that on 28 November correspondence from the CEPU was hand delivered to the Commission’s Sydney Registry, enclosing the entry permits issued to Mr Metcher (RE2016/154 issued 10 May 2016 and WHS2016/6 issued 9 June 2016).

[21] During the course of oral argument, counsel for the CEPU and Mr Metcher clarified his clients’ position in relation to the cancellation of the permits issued to Mr Metcher. The primary position of the CEPU and Mr Metcher is that because the permits have been returned there is no public interest in the referral of the matter to a Full Bench. 5 As to the position put in the correspondence from the solicitors for the CEPU and Mr Metcher of 28 November 2016 – where it is said that the CEPU and Mr Metcher would consent to the cancellation of the permits – counsel said:

‘…we consent to that if somebody thought that was an appropriate course of conduct…what we’re saying is we don’t really care one way or the other about this. We’re just saying we’ll consent to it if that’s what the administrative functions of the Commission are.’ 6

[22] Counsel was unable to point to any provision of the FW Act whereby the Commission could revoke a permit by consent. 7 Counsel also made it clear that the CEPU and Mr Metcher would not consent to the revocation of the Deputy President’s decision of 9 May 2016.

[23] The position put on behalf of the CEPU and Mr Metcher would leave standing the decision of Deputy President Lawrence of 9 May 2016 and, for that reason, is opposed by the Minister. The Minister’s position is put in the AGS correspondence of 29 November 2016 at paragraphs 3.3–4. (see paragraph [11] above)

[24] The Minister submits that there are questions of importance which raise significant public interest considerations warranting the referral of the matter before the Deputy President to a Full Bench. The particular issues referred to are:

(i) whether or not charges of assault and court proceedings concerning alleged incidences of domestic violence are matters relevant to the assessment of whether a person is a ‘fit and proper person’ to hold an entry permit; and
(ii) whether or not there should be disclosure to the Commission of such charges and related court orders. 8

[25] In the event that the referral application was granted the Minister would submit that the matters referred to above (at (i) and (ii) of paragraph [24] above) are ‘relevant matters’ within the meaning of s.513(1)(g). The remedy sought by the Minister is the revocation of the Deputy President’s decision of 9 May 2016 on the basis that new material has come to light which is relevant and which ought to have been considered under s.513(1)(g), and at the time the Deputy President made the decision of 9 May 2016, he had not been informed of those matters. 9 In the event the referral application was not granted, the Minister would seek to advance the same submission to the Deputy President.

[26] It is submitted that the Minister’s involvement in the proceedings would assist the Commission as it is ‘quite a complex statutory setting’ and, absent the involvement of the Minister, there is no contradictor to ‘help canvass the arguments and draw to the Commission’s attention all relevant matters’. 10

[27] The remedy sought by the Minister – the revocation of the 9 May 2016 decision – is sought pursuant to s.603 of the FW Act. Before turning to the remaining matters advanced in argument it is appropriate to say something about s.603.

[28] The power in s.603 is a general power to revoke or vary decisions made under the FW Act, subject to the exceptions identified in subsection (3) (none of which are applicable here). In Asmar v Fair Work Commission 11 the Federal Court determined that this general power was applicable to decisions to issue entry permits and was not excluded in its operation in this respect by the specific powers to revoke entry permits in ss.507, 508 and 510.12 In reaching that conclusion, the Court made two observations about the nature of the power in s.603 as it may apply to decisions to issue entry permits. The first was that the general power conferred by s.603 (in contrast to the specific powers for revocation of entry permits in ss.507, 508 and 510) is expressed as a power to revoke a decision, although it embraces the power to revoke an instrument made as a consequence of a decision. The Court said:

‘[67] …s.603 refers to the revocation of a “decision” of the Commission. Contrastingly, in terms of the language used, Div 5 of Pt 3.4 refers to the revocation of an entry permit. In concept, there is a distinction; the entry permit is the manifestation or implementation of the prior decision. But s.598 throws further light on the distinction. Section 598(2) provides that a “decision” includes the decision to make an entry permit in the particular terms decided. The note to s.603(1) accordingly makes it plain that revocation of an entry permit is also embraced by s.603(1) as well as the “decision” itself, although the language of s.598(2) is not as felicitous as it should have been to make this plain. But it is appropriate to note that in terms of the language used in s.603, as compared with the language used in Div 5 of Pt 3.4, there is a difference in form at least.’ 13

[29] Second, the Court said that the power in s.603 was at least exercisable to revoke a decision that was ‘flawed at inception’, 14 ‘ought never to have been made’15 or ‘based on an innocently or fraudulently procured incorrect factual foundation’,16 although the Court went on to conclude that s.603 could also be exercised where circumstances had changed since the original decision was made.17 In this respect, the conclusion of the Court was consistent with the way in which the revocation power in s.603 and its statutory predecessors have historically been used.18 The power to vary or revoke a decision has generally only been exercised where there has been a change in circumstances such as to warrant the variation or revocation of the original decision or, where the initial decision was based on incomplete or false information, fraudulently procured or otherwise.19

[30] Section 603 confers a broad discretionary power which is exercisable in a range of circumstances. In Re Health Services Union – Victoria No. 1 Brance, Diana Asmar and Nick Katsis, 20 a Full Bench of the Commission decided that in the case of right of entry permit decisions under s.512, the general power to revoke decisions in s.603 does not require that it be exercised only by reference to the fit and proper person test in s.512.21 The Full Bench said:

‘We consider that there is a proper justification to exercise the power in s.603 to revoke a decision where that decision, in some significant respect, was based upon an incorrect factual premise…In the case of a decision to issue an entry permit under s.512, we consider that it would be open for the Commission to exercise the discretion to revoke that decision if it became apparent that, in relation to one or more of the permit qualification matters specified in s.513(1), the decision had been made on incorrect facts. It would not be necessary in those circumstances to make a finding that the holder of the entry permit was not a fit and proper person to hold the permit.’ 22

[31] In summary, s.603 is a general power to revoke or vary decisions made under the FW Act and is applicable to decisions to issue entry permits. The power (and its statutory antecedents) has generally only been exercised where there has been a change in circumstances such as to warrant the revocation or variation of the original decision or where the original decision was based on incomplete or false information. In the case of a decision to issue an entry permit that decision may be revoked if, in relation to one or more of the ‘permit qualification matters’ in s.513(1), the decision had been made on incorrect facts. In such circumstances it is not necessary to make a finding that the holder of the entry permit was not a fit and proper person to hold the permit.

[32] The revocation or variation of Deputy President Lawrence’s decision of 9 May 2016 requires the exercise of the power in s.603. In the usual course, the member whose decision is to be reconsidered is in the best position to determine whether their decision should be varied or revoked because it was based on an incomplete factual matrix, a point conceded by the Minister. 23 But it is put on behalf of the Minister that I should depart from the usual practice because of the importance of the issue of principle to be determined, that is, that the matters set out at paragraph [24] above are matters that should be taken into account under s.513(1)(g).24

[33] It is relevant to observe that in the event that the referral application is refused, and the Deputy President determined the issues set out at paragraph [24] in a manner contrary to the position taken by the Minister, then it would be open to the Minister to institute a review of that decision.

[34] A decision by the Deputy President in the matter before him may be the subject of an appeal by a ‘person aggrieved’ by the decision, or a review under s.605. In the event that the Minister believed that the Deputy President’s decision was ‘contrary to the public interest’, the Minister may apply for a review of that decision (s.605(1)). The Minister has an unqualified right to make submissions for consideration in such a review (s.605(3)). A decision whether to conduct a review, and the conduct of a review, must be decided by a Full Bench (s.614). The powers available to the Commission in a s.605 review are the same as those available in an appeal (s.607(3)).

[35] As to the utilisation of the review mechanism to deal with any error by the Deputy President in his consideration of the issues identified by the Minister, the following submission was advanced on behalf of the Minister:

‘Depending on the way in which a first instance decision was framed in that regard, it may well be appeal-proof; it wouldn't involve an appellable error, but would possibly come out with an outcome that the Minister would regard as unsatisfactory.’

[36] In essence, it is submitted that if the Deputy President accepted the Minister’s submission (that the matters set out at paragraph [24] were relevant under s.513(1)(g)), and took the relevant matters into account, but nevertheless decided not to vary or revoke his decision, that would be an outcome that may be ‘appeal-proof’ but which the Minister would regard as unsatisfactory.

[37] This submission lacks merit for two reasons.

[38] First, the referral application is advanced on the basis that the public interest is enlivened by the issues set out at (i) and (ii) in paragraph [24] and a decision by the Deputy President on these issues which accepted the Minister’s submission would dispose of what are said to be the issues of principle – at least from the Minister’s perspective.

[39] Second, the fact that the Deputy President’s exercise of discretion may result in an outcome which is ‘appeal-proof’, but which the Minister may regard as unsatisfactory, is not a matter that enlivens the public interest. Indeed, the same outcome may arise even if the matter was referred to a Full Bench.

[40] Given the nature of the matter sought to be referred to a Full Bench – an own motion proceeding in which the member concerned will consider whether or not to revoke or vary his own decision – and the availability of the review mechanism in s.605 to deal with any alleged error in the Deputy President’s determination of the issue of principle said to be the basis for the referral application, I am not satisfied that it is in the public interest to refer the matter to a Full Bench.

[41] I acknowledge that the Minister would not have a right to be heard in the proceedings before the Deputy President (as s.597 only provides the Minister with an entitlement to make submissions in Full Bench proceedings or if the matter involves public sector employment), but that is not a consideration which enlivens the public interest test in s.615A. Further, the Deputy President has been informed of the Minister’s interest in the matter and of the Minister’s desire to make a submission in the proceedings.

[42] As I am not satisfied that it is in the public interest to direct a Full Bench to hear and determine the s.512 application, the s.615A application must be refused.

[43] The application to refer matter RE2016/154 to a Full Bench is refused.

PRESIDENT

Appearances

J.H. Pearce for the Applicant

P. Vermeesch for the Respondent

Hearing details

2016.

Melbourne, Sydney, Hobart (telephone hearing)

30 November.

Final submissions

Last written submission received 4:10pm 2 December 2016

 1   [2016] FWC 2877.

 2   The entry permit was issued subject to a condition that Mr Metcher undertake training about the rights and responsibilities of an entry permit holder within three months of the issuing of the permit: [2016] FWC 2877 at [28].

 3   Letter from the Minister dated 23 November 2016.

 4   O’Sullivan v Farrer (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ.

 5   Transcript at paragraphs [87] and [95].

 6   Transcript at paragraphs [124] and [161].

 7   Transcript at paragraphs [181]–[182].

 8 Transcript at paragraph [30].

 9   Transcript at paragraphs [66] – [67].

 10 Ibid at paragraph [67].

 11 [2015] FCA 16.

 12 Ibid at [100].

 13 Ibid at [67].

 14 Ibid at [85].

 15 Ibid at [88].

 16 Ibid at [100].

 17 Ibid at [87].

 18   See: Grabovsky v United Protestant Association [2015] FWC 5161.

 19 Ibid at paragraph [38]. Cited with approval in Re HSU [2015] FWCFB 5621.

 20   [2015] FWCFB 5621.

 21 Ibid at paragraph [25].

 22 Ibit at paragraph [29].

 23   Transcript at paragraphs [208]–[209].

 24   Transcript at paragraphs [221]–[222].

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