Construction, Forestry and Maritime Employees Union v BMD Urban Pty Ltd
[2025] FWCFB 21
•5 FEBRUARY 2025
| [2025] FWCFB 21 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Construction, Forestry and Maritime Employees Union
v
BMD Urban Pty Ltd
(C2024/7593, C2024/6713 and C2024/6714)
| DEPUTY PRESIDENT BELL | MELBOURNE, 5 FEBRUARY 2025 |
Appeal against procedural decisions of Commissioner Simpson at Brisbane on 19 & 23 September 2024 and against a final decision [2024] FWCA 3645 at Brisbane on 18 October 2024 in matter number AG2024/1084 – permission to appeal refused.
The Construction, Foresty and Maritime Employees Union (CFMEU) has made three separate applications for appeal against two interlocutory decisions of Commissioner Simpson and a final decision (the Decision)[1] of the Commissioner, in which the Commissioner ultimately approved an enterprise agreement following an application under s 185 of the Fair Work Act 2009 (Cth) (Act).
The three applications for appeal each require permission under s 604 of the Act. A hearing of the applications for permission to appeal was held on 19 December 2024. On 23 December 2024, we determined that permission to appeal was refused and stated that reasons would be issued in due course.[2] We provide those reasons now.
Decisions under appeal and procedural history
It is necessary to provide a brief history of the matter to put the CFMEU’s appeals in context.
On 12 December 2023, BMD Urban Pty Ltd (the Respondent to appeal / BMD) commenced formal bargaining with the relevant parts of its workforce for a new enterprise agreement. It commenced bargaining by issuing a Notice of Employee Representational Rights that day. The proposed agreement was intended to replace the existing agreement that applied at the time, namely the BMD Urban Pty Ltd Enterprise Agreement 2020.
Throughout bargaining, BMD was assisted by Drayton’s Workplace Consulting Pty Ltd (Drayton’s). Drayton’s also conducted the vote for the BMD Urban Pty Ltd Enterprise Agreement 2023 (the Agreement), a matter that subsequently had some significance to the CFMEU. That vote was conducted by text message, described further below. The vote approved the Agreement. Of the 165 employees eligible to vote, 124 cast a vote and, of that subset, 84 approved the Agreement and 40 opposed it.
On 4 April 2024, an application was made by BMD for approval of the Agreement. The application was made by BMD using the prescribed Form (Form F16) and supported by a Form F17 employer declaration.
The application was allocated to Commissioner Simpson for determination. In bargaining for the Agreement, there were at least three individual bargaining representatives, each of whom filed a Form F18A indicating their objection to approval of the enterprise agreement. The CFMEU did not appear to be involved in bargaining, but it was entitled to do so. Shortly after the application by BMD, the CFMEU joined its voice to the objections to approval of the Agreement.
The matter was initially listed by the Commissioner for hearing on 3 June 2024. BMD filed evidence, which included statements by two witnesses. One of those witnesses was Ms Morgan Moy, the HR Business Partner of BMD who prepared and signed the Form F16 and Form F17B declaration dated 4 April 2024. Ms Moy’s evidence was the Form F17 declaration she had made. The second witness was Mr Daniel Power (referred to in the Decision as Mr Dan Power, to distinguish him from Mr Greg Power, a distinction we adopt). BMD filed a witness statement of Mr Dan Power on 27 May 2024.
Mr Dan Power was an Employment Relations Advisor with Drayton’s. His witness statement stated that Drayton’s provided consultancy services on commercial terms to BMD for industrial relations advice, drafting amendments to the BMD Urban Pty Ltd Enterprise Agreement 2020 to produce the Agreement, drafting various bargaining documents, and organising and conducting the vote for the Agreement. The substantive part of Mr Dan Power’s statement was four pages in length. He identified that Mr Greg Power of Drayton’s was his father.
On 29 May 2024, which was the week prior to the scheduled hearing, BMD sought an adjournment to allow one of its witnesses, Ms Moy, a reasonable period of convalescence after having a baby and to allow BMD to be legally represented. The representative selected was also unavailable on the listed hearing date.
The Commissioner relisted the substantive matter for hearing on 24 and 25 September 2024.
The CFMEU opposed the granting of legal representation. On 19 June 2024, the Commissioner granted BMD leave to be legally represented in the matter, pursuant to s 596 of the Act. The CFMEU appealed that decision and, on 26 August 2024, permission to appeal was refused by a differently constituted Full Bench.[3]
By an email on 10 September 2024, the CFMEU requested that the matter be listed for mention and for further directions. The email did not state what directions were sought, although the main focus appeared to be complaints about the recent Full Bench decision regarding s 596 and an intention to revisit that issue, but the Commissioner nonetheless agreed to the request. On Monday, 16 September 2024, there was a mention hearing of the matter.
On Wednesday, 18 September 2024, being six days before the rescheduled start of the substantive hearing, the CFMEU lodged an application with a Form F52 for an order for the production of documents (the ‘production order application’). Based on the cover email sent by the CFMEU, it had possibly foreshadowed some form of documentation request at the mention hearing two days earlier.
The draft order enclosed with the production order application was expressed to make the order returnable by 12pm, Friday, 20 September 2024. Among other matters, the production order application sought the production of various documents “relating to” Drayton’s, which were expressed in the draft order as follows:
“a. A copy of any document relating to (1) the contract of service between BMD Uban [sic] and Drayton Consulting; including (2) the Scope of Bargaining Work Undertaken; (3) Terms of Engagement; and (4) Payment of Fees;
b. A copy of any document relating to (1) the contract of service between BMD Uban [sic] and Drayton Consulting as to the ballot and voting information; including (2) Timetable for the Electronic Voting; (3) Declaration of Result; (4) Vote Methodology (Voting channels (online and phone); (5) Voting Information - unique login details such as Username and PIN information that were distributed to voters); (6) Disclosure of Individual Votes; (7) Terms of Engagement; and (8) Payment of Fees.”
Other documents sought included various documents pertaining to the explanations given to employees about the Agreement.
The basis for the production order application, as stated in the Form F52, was:
“The documents are being sought as they are (1) directly relevant to matters addressed in the Form F17 filed in the Commission in support of the approval of the proposed enterprise agreement and the veracity of the information contained therein; and are (2) directly relevant to matters as to the regularity or irregularity of the ballot of employees; and are (3) directly relevant to matters as to the relationship between BMD Urban and Draytons Consulting in relation being both the balloting agent and bargaining representatives.”
The Commissioner requested BMD to advise chambers by 2:00pm the following day whether it consented or opposed the making of the proposed production order either in whole or in part and the grounds for doing so.
Within that timeframe, BMD responded. The response was sent under cover of an email from Mr Dan Power. In short, BMD consented to a number of documents being sought and undertook to provide them (which it did). In relation to category (b) in paragraph [15] above, BMD consented to the provision of various documents pertaining to the actual vote. In relation to category (a) in paragraph [15] above, BMD objected to that category as being irrelevant but also stated (emphasis added):[4]
“In any event, there is no document or contract that details or outlines the following between BMD Urban and Drayton’s Workplace Consulting;
• Scope of Bargaining Work
• Services
• Terms of Engagement
• Schedule of FeesDrayton’s Workplace Consulting provides consulting services to assist BMD Group in matters relating to employment and industrial relations as required. Drayton’s Workplace Consulting has facilitated these services for over 18 years.”
The CFMEU also filed written submissions, which were four pages in length. Later in the afternoon of 19 September 2024, the Commissioner wrote to the parties via chambers in the following terms (formalities excluded, emphasis added):
“The Commissioner has considered the Applicant’s response to the application for production of documents. The Commissioner has determined not to issue the orders at this stage.
The Commissioner requests that the Applicant provide to all parties the documents it consented to by 5:00pm Friday 20 September 2024.
The Commissioner requests that the Applicant provide to chambers only the documents it has agreed to produce to chambers by 4:00pm today Thursday 19 September 2024.
An updated Digital Court Book will be issued to parties upon receipt of the additional documents on Friday.”
(‘the production order decision’).
On 20 September 2024, the CFMEU filed an application using Form F51, seeking the compulsory attendance of Mr Greg Power at the hearing scheduled for 24 September 2024. The apparent basis for Mr Greg Power’s attendance, which followed from the absence of any written contractual document between Drayton’s and BMD, was relevantly stated in the Form F51 to be:
“1) The attendance and oral evidence of Greg Power will assist the Commission in determining whether it is satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement pursuant to s 188 of the FW Act; and
2) The attendance and oral evidence of Greg Power will assist the Commission in determining whether the employer has complied with the terms of s 180(5) of the FW Act;
3) The attendance and oral evidence of Greg Power will assist the Commission in determining and establishing the commercial relationship between BMD Urban and Draytons and whether there was a conflict of interest between the employer, the bargaining representatives and the balloting agent in the conduct of the vote for the making of an enterprise agreement.”
On 23 September 2024, the Commissioner refused the CFMEU’s application concerning Mr Greg Power and sent an email from chambers as follows:
“The Commissioner has considered both parties’ submissions and determined not to order Mr Greg Power to attend the hearing as a witness on the basis that it would not be sufficiently relevant to justify making the order.”
(‘the witness order decision’).
Pausing there, the Commissioner’s observation is one we agree with. Based upon the material before the Commissioner at the time, the application appears to have been wholly speculative or, in the more colloquial language sometimes engaged with reference to subpoenas, a fishing expedition, at least as it concerned the commercial relationship between Drayton’s and BMD. In circumstances where two witnesses for BMD, including one from Drayton’s, would be available for cross-examination about all those matters then if relevant matters arose from cross-examination, it was possible that Mr Greg Power’s relevance might come into sharper focus.
At 2.59pm on 23 September 2024, the CFMEU filed two Notices of Appeal in the prescribed Form F7, the first (C2024/6713) in relation to the production order decision and the second (C2024/6714) in relation to the witness order decision. In each Form F7, the CFMEU indicated it sought a stay. In the part of the Form F7 which asks if an expedited hearing was sought, no expedited hearing was sought in either appeal notice.
The stay applications were vaguely expressed to apply to the ‘Whole of the decision or order’ in each notice of appeal, and no operative decision to be stayed was specified.
At 3.01pm on 23 September 2024, the CFMEU then sent an email to the Commissioner’s chambers requesting that he recuse himself. Somewhat elliptically, the email “notes” that “that no written decisions with reasons for the failure to make either order in relation to the request for a required attendance and/or production of documents, records or information has been made by the Commission”. The reason for the recusal asserted both actual and apprehended bias. No grounds were provided, although a collection of uncontroversial assertions were provided, such as the “Commission’s impartiality is central to a fair hearing”. It appears those propositions were intended to be the grounds for recusal on the implicit basis that the proposition had been contravened, although no factual basis was provided.
An email from the Commissioner’s chambers the same day indicated that the recusal application would be heard at 10.00am the following morning, being the commencement of the scheduled hearing. Separately, BMD had written to the Commissioner’s chambers asking if the hearing would proceed in light of the appeal applications. The Commissioner responded indicating that the first matter would be the recusal application and, if that application was granted, the hearing would not continue. Otherwise, if the recusal application was dismissed, the Commissioner indicated that the parties should be prepared to proceed to deal with any further interlocutory matters in relation to the appeals and be prepared to proceed to hear the substantive matter as scheduled if determined that was the appropriate course.
On 24 September 2024, the hearing of BMD’s application commenced as scheduled, with the first item of business being the CFMEU’s recusal application. The CFMEU filed no written submissions or any evidence (whatsoever) in support of its actual bias and apprehended bias application. The recusal application was advanced by Mr Dalgleish orally. We mention the recusal application because one ground articulated in support of it asserts the Commissioner had “failed to accord CFMEU natural justice in the conduct of the proceedings thus far, which gave rise to a reasonable apprehension of bias”, which was a reference to the document production decision and the witness order decision.
We have reviewed the transcript dealing with the recusal application. Of particular relevance to the applications for appeal before us is the following exchange concerning Mr Greg Power:
“PN48 THE COMMISSIONER: Sure. And, look, the other issue which I raise is that – like, I dismissed the application for an attendance order against Mr Power, but that doesn't – I mean, if something arises from the evidence of Dan Power and Ms Moy that changes the situation, there's nothing stopping you from seeking to reagitate that.
PN49 MR DALGLEISH: No. That's quite right. That's quite right. That's quite right.”
The application for the Commissioner to recuse himself was (correctly) refused. One ground advanced for the recusal application was that the Commissioner had prejudged the substantive application for the enterprise agreement, based upon his refusal to make the production order or witness attendance order sought. On that matter, the Commissioner stated (after some introductory observations) in relation to the production order decision:
“PN264 … I adopted the approach in relation to the first application on the basis that it was my preliminary observation on the material before me at the time the application was made, given the content of the witness statements for the applicant and the nature of issues before me, that I was not satisfied at that point that the making of the orders was necessary when I saw the response of the applicant where they agreed to provide a range of documents, and that was the basis on which I provided my ruling effectively that I was not going to proceed to make the order at that time, although I did reserve my position to some extent by saying words to the effect of at this stage on the basis that depending on how the evidence proceeds in relation to Mr Dan Power and Ms Moy I may be persuaded to revisit the issue.”
With reference to the CFMEU’s complaint that reasons were not provided at all or were not adequate, the Commissioner drew attention to s 601 of the Act.[5]
The substantive hearing before the Commissioner then ensued. Mr Dan Power was cross-examined at some length. Among other matters, Mr Dan Power was responsible for the actual conduct of the ballot of employees. Upon receiving from the employer a deidentified list of telephone numbers for the employees eligible to vote, it was Mr Dan Power who caused text messages to be sent to those employees about how to vote and it was Mr Dan Power who tallied the votes. Mr Dan Power’s clear evidence was that he was unaware of the identity of individuals who voted and he did not disclose the individual text messages he received to the employer (the latter of whom might have conceivably identified how an individual voted, if minded to do so). Ms Moy, who was the relevant witness from the employer, confirmed she was not provided that information. Mr Dan Power was also cross-examined on his knowledge about the commercial arrangements between Drayton’s and BMD. He was capable of answering a number of those questions, although there were some matters he acknowledged he did not know. The evidence from the employee bargaining representatives was that they cast their vote on the basis that the integrity of the ballot was sound.
Despite the express invitation by the Commissioner to reagitate the witness attendance order for Mr Greg Power if something arose - acknowledged by Mr Dalgleish with “That’s quite right. That’s quite right. That’s quite right” - there was no reagitation of that issue and the hearing before the Commissioner concluded on that basis. Similarly, despite the production order decision being expressed to apply “at this stage” (i.e. 19 September 2024) and the express indication the Commissioner “may be persuaded to revisit that issue”, there was no revisitation of that request or part of it by the CFMEU.
At the conclusion of the hearing, there was discussion about final written submissions. A timetable was set down for the parties to provide written closing submissions by 4 October 2024, which factored in the prior receipt of a transcript for the hearing.
On 25 September 2024, the Chambers of the President corresponded with the CFMEU and other parties in the following terms regarding the two Notices of Appeal that had been filed two days prior. The email also addressed the stay and was in the following terms (formalities omitted):
“I refer to the notices of appeal you have lodged dated 23 September 2024 in which you seek a stay of the decision in a s.185 application AG2024/1084. The appeals have been given the above matter numbers.
As no order was made, there is nothing for the Commission to stay on appeal. It is therefore not necessary or appropriate to seek a stay order.
A Full Bench will determine the appeals. You will soon receive a Notice of Listing and Directions for the appeal hearing.”
The CFMEU did not take issue with the correspondence concerning the stay.
On 2 October 2024, the parties received a copy of the transcript of the hearing before the Commissioner. Pursuant to requests by the parties, the time to file written closing submissions was extended to 11 October 2024.
On 9 October 2024, the CFMEU filed its written closing submissions. Its submissions explicitly conceded that “[n]otwithstanding” the production order decision and witness order decision, the Agreement ought to be approved. The submissions stated (footnotes omitted):
“2. Notwithstanding that BMD Urban (1) failed to call the particular witness Greg Power – as his evidence would elucidate the claims against Draytons and BMD; and (2) failed to adduce any evidence at all in relation to the case put against it by the CFMEU and others; and (3) failed to produce the particular documents of relevance requested during discovery such as Scope of Bargaining Work – Services - Terms of Engagement - Schedule of Fees which apparently did not exist (the absence of those documents should not be accepted by the FWC); and (4) failed to disprove any allegations against both Draytons and BMD; and (5) that the Commission failed to make any order assisting the CFMEU to prove its case theory:
on the evidence before the Commission, recorded in the transcript of proceedings (the record of proceedings), it is evident that BMD Urban:
a) has taken all reasonable steps to give the notice of employee representation rights in accordance with s.173(1);”
b) has taken all reasonable steps to ensure employees were given or had access to incorporated materials during the access period in accordance with s.180(2);
c) appropriately explained the terms and effect of the Agreement to relevant employees in accordance with s.180(5);
d) employees requested to vote on the Agreement who were eligible within the scope of ss.188(1)(b), 182(1) and 181(1) voted on the making of the Agreement;
e) the other applicable requirements of ss.186 and 187 were met in relation to the Agreement;
f) therefore, the Commission is able to be satisfied that the Agreement was genuinely agreed to by the employees covered by the Agreement (s.186(2)(a)) because the decision maker would be satisfied the Agreement was made in accordance with s.182(1) and as required by s.188(1)(b); and
g) BOOT undertakings would be able to be accepted under s.190 by the Commission to address any additional concerns raised by the CFMEU and others;
h) the CFMEU’s conclusion is that, if any undertakings are sort [sic] by the Commission, proffered by BMD and agreed by the CFMEU and others, and are accepted pursuant to s.190 by the Commission, then the Agreement passes the BOOT;
i) accordingly, the Commission would be satisfied that the Agreement was genuinely agreed to by the employees covered by it as required by s.186(2)(b).”
For completeness, we note a footnote to the proposition that the Commission should not accept, as a matter of fact, the “absence” of documents such as a Scope of Bargaining Work (etc). The footnote stated:
“The documents sought were (1) directly relevant to matters addressed in the Form F17 filed in the Commission in support of the approval of the proposed enterprise agreement and the veracity of the information contained therein; (2) directly relevant to matters as to the regularity or irregularity of the ballot of employees; and (3) directly relevant to matters as to the relationship between BMD Urban and Draytons Consulting in relation being both the balloting agent and bargaining representatives – s.180(5) and s.188 of the FW Act.”
At this point, the Commissioner reserved his decision.
On 18 October 2024, the Commissioner approved, for the purposes of s 185 of the Act, the Agreement and delivered reasons for his decision on the same day. The Commissioner set out his factual findings concerning the evidence of Mr Dan Power and Ms Moy. It is unnecessary to set out in detail those findings but we note that the evidence of Mr Dan Power was found to include a finding that there was no formal contract of services between Drayton’s and BMD. At [49], the finding was:
“[Mr Dan Power] confirmed that there was no contract of service between Drayton’s and BMD, but that Drayton’s provided services on an ad hoc basis to BMD in whatever capacity they required. He stated that he was not aware of a contract of service now, but there may have been one when the business relationship was initially made, some 18 years ago.”
At [74], the Commissioner concluded that Ms Moy and Mr Dan Power gave reliable and truthful evidence regarding the voting process utilised by the Applicant for approval of the Proposed Agreement. There was no suggestion that the Commissioner otherwise took issue with the honesty of any of those witnesses’ evidence.
On 25 October 2024, the CFMEU filed its third Notice of Appeal (C2024/7593).
Grounds of Appeal
The grounds of appeal in each Notice of Appeal are identical. They state:
“1. No reasons were furnished by the Commissioner and constituted an error of law.
2. In the alternative, the reason given by the Commissioner was inadequate and constituted an error of law.
3. Failure to afford the CFMEU an opportunity to be heard before making a decision affecting its interests and a reasonable opportunity to present a case.
4. A failure to discharge one’s responsibilities in a civil case.
5. For such further or other grounds as may be advanced at the hearing of this appeal.”
While it is not entirely clear from the above grounds of appeal, the alleged errors concerning a failure to give reasons is a reference to the production order decision and the witness order decision.
With short written submissions dated 22 November 2024, the CFMEU elaborated on those grounds. Primarily, those submissions rested on the proposition that an error arose because the “interim and final decisions did not disclose any process of weighing the competing public interests for or against document production and attendance of persons.” In support of that proposition, the CFMEU referred to various authorities. For example, it relied upon the following statement of the High Court in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (Wingfoot), 501 [55] per French CJ, Crennan, Bell, Gageler and Keane JJ (emphasis added for the aspects relied upon by the CFMEU).
“The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.”
The CFMEU’s written submissions dated 22 November 2024 adopted earlier submissions it filed, dated 18 October 2024 (18 October submissions), for the first two appeals. The 18 October submissions were to similar effect, alleging the absence of “reasoning and/or findings” or defective reason. Those submissions then stated “it can be concluded that the decision maker did not actually turn their mind to the issues in contest”. The CFMEU referred to the following passage from the High Court decision in Chief Commissioner of Police v Crupi [2024] HCA 34 (Crupi) at [23]:
“Even though the primary judge's decision was interlocutory, his Honour was obliged to explain how the balancing exercise was undertaken and what its outcome was. For example, was the consequence of refusing production of some or all of the documents that the first respondent would be denied a fair trial? In light of the material that had been disclosed, was there any means of disclosing parts of some of the documents that would still enable a fair trial to be had without disclosing the identity of Informer Z or the means of establishing his or her identity? How did the process of weighing the competing interests address the real potential for harm to Informer Z? His Honour's judgment did not reveal any reasoning in relation to the balancing exercise that his Honour undertook, much less the outcome of that exercise. The only remaining possibility is that his Honour did not undertake the balancing exercise at all. If his Honour undertook the balancing exercise, then his reasons were clearly inadequate in failing to reveal any aspect of how that was undertaken and the result. If, which is less likely, his Honour did not undertake that exercise then his Honour fundamentally failed to apply s 130(1). Either way, his Honour's decision cannot stand.”
The CFMEU’s written speaking notes dated 19 December 2024 contain further arguments. The CFMEU set out ten, or possibly eleven, different bases as to why it was in the public interest to grant leave to appeal. We will not set them out but the ‘third’ and ‘fourth’ points appear to assert a ground of appeal on the basis that the final decision of the Commissioner was flawed, presumably on the basis of a denial of natural justice. In the ‘fourth’ point, the CFMEU states “The result may well have been different if the Commissioner had not contained document production and attendance of persons”.
A similar point appears to be made in the 22 November submissions, which state “The final hearing went ahead without resolving the evidential issues.” These arguments perhaps explain the relief sought by the CFMEU, which is that “The application should be re-determined by the Full Bench and the Agreement refused.”
Statutory context
It is necessary to provide some detail about the statutory context, which was first raised by the Commissioner in the hearing on 24 September 2024. Section 601 of the Act relevantly provides:
“601 Writing and publication requirements for the FWC’s decisions
(1) The following decisions of the FWC must be in writing:
(a) a decision of the FWC made under a Part of this Act other than this Part;
(b) an interim decision that relates to a decision to be made under a Part of this Act other than this Part;
(c) a decision in relation to an appeal or review.
(2) The FWC may give written reasons for any decision that it makes.
…
(6) Subsections (1) and (4) do not limit the FWC’s power to put decisions in writing or publish decision.”
Subsection 601(4) provides for a publication requirement, which relevantly includes any decision that “is required” to be in writing, together with any reasons. Subsection 601(5) provides for various exceptions to the publication requirement, none of which are relevant.
Section 601 is located within Part 5-1 of the Act. Hence, the exclusion in s 601(1) to decisions made “other than this Part” therefore excludes decisions made under Part 5-1.
The CFMEU’s Form 52 application for a production order was made under s 590(2)(c) of the Act and its Form F51 application for a witness attendance order was made under s. 590(2)(a). Section 590 is located within Part 5-1 of the Act and, more specifically, Subdivision B of Division 3 of that Part. Sections 589, 590 and 591 (there are further general provisions from 592 – 595 also located within Subdivision B which are not necessary to set out) are as follows:
“Subdivision B—Conduct of matters before the FWC
589 Procedural and interim decisions
(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.
(2) The FWC may make an interim decision in relation to a matter before it.
(3) The FWC may make a decision under this section:(a) on its own initiative; or
(b) on application.
(4) This section does not limit the FWC’s power to make decisions.
590 Powers of the FWC to inform itself
(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.
(2) Without limiting subsection (1), the FWC may inform itself in the following ways:(a) by requiring a person to attend before the FWC;
(b) by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;
(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;
(d) by taking evidence under oath or affirmation in accordance with the regulations (if any);
(e) by requiring an FWC Member, a Full Bench or an Expert Panel to prepare a report;
(f) by conducting inquiries;
(g) by undertaking or commissioning research;
(h) by conducting a conference (see section 592);
(i) by holding a hearing (see section 593).
591 FWC not bound by rules of evidence and procedure
The FWC is not bound by the rules of evidence and procedure in relation to a matter before it (whether or not the FWC holds a hearing in relation to the matter).”
Applicable principles
An appeal under s 604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[6] There is no right to appeal, and an appeal may only be made with permission.
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[7] This is so because an appeal cannot succeed in the absence of appealable error.[8] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[9]
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[10] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error. In Waters v Commonwealth (Australian Taxation Office) [2015] FCAFC 46 (Waters), the Full Court stated at [10] that “An indiscriminate “scatter-gun” approach on the part of an Applicant seeking leave upon each of the proposed Grounds of Appeal may well only divert attention away from the one (or a limited number of grounds) which really expose the reason why a primary judge’s decision is truly open to “sufficient doubt” to warrant leave being granted” (original emphasis).
Where an appeal concerns a discretionary decision, the principles in House v The King (1936) 55 CLR 499 apply. An appeal against such a decision must establish the decision maker acted upon a wrong principle, gave weight to irrelevant matters, failed to give weight or sufficient weight to relevant matters, made a mistake as to facts, or where the decision is so unreasonable or plainly unjust demonstrating a failure to properly exercise the discretion.
Where an appeal alleges an error of a finding of fact, it is well established that an appellate body will not interfere with the factual findings of a trial decision-maker based on the credibility of a witness, unless it is concluded that a finding cannot stand because it was contrary to incontrovertible facts or uncontradicted testimony, glaringly improbable, or contrary to compelling inferences.[11]
By s 604(2), and without limiting when the Commission might grant permission, the Commission must grant permission if the Commission is satisfied that it is in the public interest to do so. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[12] The public interest is not satisfied simply by the identification of error,[13] or a preference for a different result.[14] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... 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...”[15]
Consideration
The CFMEU’s three applications for appeal raise no arguable basis for any error. While none of the applications for appeal have arguable merit, the first two applications are particularly unmeritorious.
The first and second Notices of Appeal concern appeals of interlocutory decisions made prior to the substantive hearing. In B. Hutton v Sykes Australia Pty Ltd[2014] FWCFB 3384, the Full Bench was considering an application to appeal directions issued at first instance and, in particular, an extension of time granted to the respondent in that matter to file its material. At paragraphs [3] – [4], the Full Bench stated (citations omitted, emphasis added):
“[3] The fact that this appeal challenges an interlocutory or procedural decision is relevant to the determination of permission to appeal. Courts and tribunals have generally discouraged appeals from preliminary or procedural rulings. Permitting appeals against interlocutory or procedural rulings may prolong the proceedings overall and increase the costs to the parties. There are other reasons why appellate intervention at an early stage may be undesirable. Procedural rulings may be altered later in the case and the party complaining about a procedural decision might ultimately be successful in the substantive proceedings. In such a case any earlier appeal in relation to a preliminary or procedural issue would be rendered futile.
[4] The effect of the Directions was not to make any final or substantive ruling upon any of the matters in issue between the parties. All of the material that the parties wish to rely upon in the substantive proceeding has now been filed and Mr Hutton’s unfair dismissal claim has been listed for hearing. We are not persuaded that either party has been denied procedural fairness or that any substantial injustice has arisen.”
The underlined parts of the above have particular relevance to the first and second applications for appeal in this matter. At the stage of the substantive proceeding when they were filed, those applications should not have been made. In particular:
· Each of the applications for production of documents and attendance of witnesses were directed at factual matters yet to be determined in the substantive hearing scheduled for 24 September 2024.
· The production order decision was expressly stated to be refused “at this stage”, clearly leaving open the prospect (as was the case) that the Commissioner would be open to revisiting that issue should the need arise.
· The production order application was partly complied with, albeit on an informal basis. So much is common practice (and, indeed, the Commission generally expects experienced parties to attempt to resolve such issues between them at first instance).
· The need – assuming there was one in the first place - for either the production order application or witness attendance order application may have been rendered inutile, depending upon the course of proceedings on 24 September 2024.
While it is our view that the first and second applications for appeal should not have been made, they should have been discontinued after the substantive hearing before the Commissioner. There are two reasons for this. First, the Commissioner provided reasons orally for his earlier procedural decisions and, second and more importantly, the Commissioner expressly stated that both decisions could be revisited. As the CFMEU took no steps to revisit either issue, the first and second applications for appeal were rendered wholly inutile.
The CFMEU ought to have been sensitised to the lack of utility of its first two applications for appeal when its applications for stay orders were refused on the basis that there were no operative decisions to be stayed.
Instead of the CFMEU having taken steps to revisit its production order application and witness attendance application, its written closing submissions to the Commissioner stated that “Notwithstanding” its complaints about those decisions, the Agreement should be approved. The Commissioner did so. In the CFMEU’s submissions filed on 22 November 2024, it appears to have retreated from this position. The CFMEU asserts that the final hearing before the Commissioner “went ahead without resolving the evidential issues”. Those same submissions state that the relief sought by the CFMEU is that the application should be re-determined by the Full Bench and the Agreement “refused”.
The assertion that the evidential issues were unresolved is simply wrong. First, as now ought to be clear, the CFMEU had ample opportunity (which it exercised) to cross-examine two highly relevant witnesses about the matters of concern to the CFMEU. At the conclusion of that evidence, it made no request for further evidence to be produced. Second, the Commissioner did resolve the evidentiary issues. The Commissioner made careful findings of fact about the conduct of the ballot that, importantly, are not under challenge. Those findings had specific regard to the fact that Drayton’s supplied its services to BMD on commercial terms. If the CFMEU’s grounds of appeal are intended to act as a collateral attack on those factual findings, they disclose no arguable error. The findings were not contrary to incontrovertible facts or uncontradicted testimony, glaringly improbable, or contrary to compelling inferences.[16] The findings were plainly open and were, respectfully, sound.
The CFMEU’s submissions rested heavily on a failure to provide reasons for the production order decision and witness attendance order decision. Section 601 of the Act is plainly relevant to the requirement and content of any reasons. The only mention in the four written submissions for its appeals filed by the CFMEU to s 601 is a curious reference in its initial submissions dated 18 October 2024, following a heading “Principle of stare decisis”. In full, the two relevant paragraphs in those submissions are:
“12. Principle of stare decisis (following established precedents): see Breen v Williams (1996) 186 CLR 71 per Gaudron and McHugh JJ at [115]: “Advances in the common law must begin from a baseline of accepted principle and proceed by conventional methods of legal reasoning. Judges have no authority to invent legal doctrine that distorts or does not extend or modify accepted legal rules and principles.”
13. This point bears emphasizing in relation to legal reasoning, the presumption of legislature and statutory context in s. 601 of the Act: Ex parte Bucknell (1936) 56 CLR 221 at [225 - 226] the High Court stated that interlocutory orders that determined the rights of parties raised little difficulty in being overturned:
‘If the interlocutory order ... has the practical effect of finally determining the rights of the parties, though it is interlocutory in form, a prima facie case exists for granting leave to appeal. For example, a judgment for either party on a demurrer might, in effect, be decisive of the whole litigation. Although such a judgment would often be interlocutory, it might be final in determining the issue between the parties, and, in such a case, leave would be granted almost as of course.’” (CFMEU original emphasis).
So much is uncontroversial with the authorities cited in those submissions, however they bear no coherent connection to s 601 of the Act, and nor do the other authorities the CFMEU relied upon. Starting with Wingfoot, that case concerned the content of the obligation arising from s 68(2) of the Accident Compensation Act 1985 (Vic), under which a Medical Panel must give its opinion on a medical question referred to it and a written statement of its reasons for that opinion. Section 68(2) of that act provided “The Medical Panel to whom a medical question is so referred must give a certificate as to its opinion and a written statement of reasons for that opinion.”[17]
When relying upon Wingfoot for the purposes of its applications for leave to appeal, the CFMEU appears to have overlooked the following critical statement in that decision that preceded the extract it relied upon. At [43], the Court stated (footnotes omitted, emphasis added):
“The starting point for considering the standard required of a written statement of reasons under s 68(2) of the Act is recognition that there is in Australia no free-standing common law duty to give reasons for making a statutory decision. The duty of a Medical Panel to give reasons for its opinion on a question referred to it is no more and no less than the statutory duty imposed by s 68(2) itself. The content of that statutory duty defines the statutory standard that a written statement of reasons must meet to fulfil it.”
The statutory duty for the Commission to provide written reasons resides with s 601 of the Act or otherwise by implication. Section 601 is set out above. Structurally, s 601 applies to “decisions” not reasons (although reasons will often record a decision). Many decisions must be “in writing”, although an express exception to the requirement for issuing written decisions are for decisions made under the Act “other than this Part [5-1 of the Act]”.
Pausing there, as the production order decision and witness attendance order decision were each under Part 5-1 of the Act, the Commissioner was not required to issue a written decision. Notwithstanding, he did so for both decisions.
The CFMEU’s complaint is primarily directed at an alleged deficiency in “reasons”. Yet, by s 601(2), the Commission “may” give written reasons but need not do so.
The Explanatory Memorandum to the Fair Work Bill 2009 states at paragraph 2310:
“2310. Subclause 601(2) provides that FWA may give written reasons for any decision that it makes. It is expected that FWA will provide written reasons for all decisions of significance. An example where a written decision may not be necessary is a procedural decision.”
At paragraphs 2301 – 2302 of the Explanatory Memorandum, the distinction between substantive decisions and procedural decisions is further illustrated:
“2301. Subclause 598(1) defines a decision of FWA in broad terms as including any decision of FWA however described. The note following this subclause provides some examples of actions of FWA that would be considered to be decisions of FWA. It is intended that, for the purposes of this Part, decisions of FWA should include all of the decisions that FWA makes, both substantive and procedural.
2302. Where this outcome is inappropriate, specific provision is made to limit the decisions to which a provision applies. For example, the requirement in clause 601 to put decisions of FWA in writing is confined to most of the substantive decisions made by FWA. In the case of appeals (which can be brought from any decision of FWA) it is expected that FWA would use its discretion to grant permission to appeal (see clause 604) to refuse to hear and determine inappropriate appeals such as appeals from many of its procedural decisions.” (emphasis added).
In Construction, Forestry, Maritime, Mining and Energy Union v Anglo American Australia Ltd (2019) 271 FCR 22 (Anglo American), the Full Court of the Federal Court considered s 601 in the context of the provision of reasons for a determination made to vary the Black Coal Industry Award as part of a 4 year modern award review. At [108], Kerr and O’Callaghan JJ stated (emphasis added):
“It is also important to appreciate in this case “that by s 601, the Commission was not required to give written reasons, though under s 601(2) it may do so” and that “to the extent that reasons given display a misunderstanding of the statutory task, that may ground a conclusion of jurisdictional error. If, however, such reasons as are given do not completely explain the conclusion reached, jurisdictional error is not demonstrated by such inadequacy”: Construction, Forestry, Mining and Energy Union v Anglo American Metallurgical Coal Pty Ltd [(2017) 252 FCR 337] at [30].”
It is clear from the text of the production order decision that the Commissioner intended only to provide the parties with a written note of his decision without reasons. The witness order decision arguably went further than simply recording the decision, and provided brief reasons for the decision, namely that the attendance of Mr Greg Power “would not be sufficiently relevant to justify making the order”.
Having regard to sections 601(1) – (2) of the Act and Anglo American, each of the three Notices of Appeal disclose no arguable error concerning the CFMEU’s complaint that no reasons were provided for the production order decision and the witness order decision. Further, so far as the witness order decision provides brief reasons, it discloses no misunderstanding of the statutory task engaged in by the Commissioner.
Our decision does not concern the boundaries of when written reasons might accompany a procedural decision, let alone a substantive decision, as the context and range of potential procedural decisions is extremely broad. But there was no requirement for the Commissioner to have produced written reasons for either of the two procedural decisions he made, having regard to the nature of those decisions and the late timing of the applications before the hearing.
While the CFMEU complains that there was “no reasoning or defective reasoning”, the CFMEU also omits reference to the further oral reasons provided at the hearing itself, which we have referred to above. While the provision of reasons (when provided) will typically accompany the pronouncement of a decision, it is not uncommon for reasons to be subsequently provided. The exchange with the bench about the production order decision and witness order decision make it pellucidly clear that the Commissioner did not consider either order was sufficiently justified at the time of the proceeding when they were applied for. There is no arguable basis, however, to suggest that the Commissioner displayed a misunderstanding of the statutory task before him that may ground a conclusion of jurisdictional error. To the contrary, the Commissioner’s explanations indicate a sound understanding of the relevant principles.
The CFMEU asserts a denial of a fair hearing or procedural unfairness. There is no question that a failure to afford procedural fairness will constitute an error of law, although it does not always follow that a denial will lead to a decision being quashed.
There are two aspects of the asserted denial of procedural fairness. The first, which was advanced orally, was a faint contention by the CFMEU that the Commissioner was required to conduct some form of directions hearing or case management hearing – prior to the substantive hearing on 24 September 2024 – to hear orally from the CFMEU about its applications. As the Commissioner explained to the parties, he had five listings with other matters the day before the substantive hearing. In terms of the production order application, that was made on 18 September 2024 and was sought to be returnable by midday, 20 September 2024. The CFMEU’s submission that it ought to have been provided a hearing is naïve at best and presumptuous at worst, involving an implicit expectation that the Commissioner ought to have made time available for a hearing (two, in fact) to deal with applications that were easily dealt with on the papers.
Like two of the matters before us, the CFMEU’s earlier appeal regarding the Commissioner’s decision to grant BMD permission to be legally represented concerned an appeal of an interlocutory decision prior to the finalisation of the substantive matter. We agree with the Full Bench’s general observation regarding interlocutory decisions concerning the grant or refusal of permission for legal representation:
“[22] Decisions under s 596 must be made in the context of the Commission’s statutory obligation to deal with cases quickly, fairly and by avoiding unnecessary technicalities. In this context, and because of the obvious cost and time burden involved, decisions under s 596 are not usually the subject of formal evidence or hearing.” (emphasis added).
Decisions for production orders or witness attendance orders are also frequently conducted without a hearing, particularly where (as here) those applications are made on the eve of a substantive hearing.
More substantively, in its written speaking notes dated 19 December 2024, the CFMEU states “The error was relevant because it affected the primary Commissioner’s decision and the interests of justice.” The CFMEU states the “result may well have been different if the Commissioner had not contained document production and attendance of persons.” In its written submissions filed on 22 November 2024, the CFMEU states “The final hearing went ahead without resolving the evidential issues.” The underlined part of Ex parte Bucknell (1936) 56 CLR 221, referred to above, indicates a submission that the Commissioner’s decisions regarding the production order and witness attendance order had “practical effect of finally determining the rights of the parties”, even though interlocutory in form.
However, as the timeline of events set out above demonstrates, there is no arguable basis that the CFMEU was denied any procedural fairness. When the Commissioner issued his procedural decisions, he was doing so to experienced parties before the Commission. The production order was expressly stated to be “at this stage” and, if there was any doubt about the nature of that decision or the witness attendance order, the CFMEU was expressly told it could revisit both issues after cross-examination of witnesses. The CFMEU did not do so and instead filed written submissions stating that the application should be approved. The Commissioner’s factual findings about the witnesses who were cross-examined are unchallenged, save for some vague assertion, advanced with studious avoidance of the Commissioner’s invitations, that the outcome “might” have been different.
The Notices of Appeal and supporting submissions disclose no discernible public interest that would otherwise warrant permission to appeal being granted.
As each of the applications for appeal disclose no arguable error, permission to appeal in each matter is refused.
DEPUTY PRESIDENT
Appearances:
E. Dalgleish of the CFMEU for the Appellant.
T. Spence of Counsel, instructed by R Bibby of Optimum Legal Solutions Pty Ltd, for the Respondent.
Hearing details:
2024.
Melbourne (by video using Microsoft Teams):
December 19.
[1] [2024] FWC 3645.
[2] PR782757. We also made an order vacating a stay of the Commissioner’s decision, which had otherwise been in operation by consent since 29 October 2024 (see PR780717).
[3] [2024] FWCFB 355 (Millhouse and Roberts DPP, McKinnon C).
[4] Appeal Book page 49.
[5] Transcript at PN91.
[6] This is so because on appeal FWC has the power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
[7] Re Coldham; Ex parte Brideson (No 2) [1990] HCA 36; (1990) 170 CLR 267 at 275.
[8] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
[9] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].
[10] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[11] Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [27] – [29].
[12] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] – [46].
[13] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[14] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
[15] [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
[16] Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [27] – [29].
[17] Wingfoot at [11].
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