REASONS FOR DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Construction, Forestry, Mining and Energy Union
(C2017/7096)

DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT BEAUMONT
COMMISSIONER HARPER-GREENWELL

BRISBANE, 7 MARCH 2018

Appeal against decision [2017] FWC 6709 of Commissioner Saunders at Newcastle on 14 December 2017 in matter number RE2017/1202; permission to appeal granted; appeal upheld; decision varied to remove condition.

Introduction and Background

[1] On 19 February 2018 we delivered a decision ex tempore, which is recorded in transcript, granting permission to the Construction, Forestry, Mining and Energy Union (CFMEU) to appeal a decision 1 (Decision) of Commissioner Saunders, imposing a condition pursuant to s.515(1) of the Fair Work Act 2009 (Cth) (Act) on a right of entry permit issued to its official, Mr Martin Wyer (Mr Wyer).

[2] In addition, we determined to uphold the appeal on the procedural fairness ground advanced in the Notice of Appeal. On a rehearing we accepted an undertaking proffered which was to the same effect as the permit condition the subject of the appeal and we concluded that a condition was unnecessary in the circumstances. Accordingly, pursuant to s.607(3)(a), we varied the Decision so that the permit issued to Mr Wyer is unconditional. These are the reasons for our decision.

[3] Mr Wyer, an organiser employed by the CFMEU, held an entry permit which was issued on 17 December 2014. The expiry date of that permit was extended by Commissioner Saunders on 7 December 2017 2 until the primary application for an entry permit was determined.

[4] On 14 December 2017, the Commissioner determined in the primary application that Mr Wyer was a fit and proper person to hold an entry permit. However, he considered that, having regard to the seriousness of allegations concerning Mr Wyer pending determination in the Federal Circuit Court, he would impose a condition on Mr Wyer’s permit to the following effect:

If any finding of a contravention of the Act is made or any penalty is imposed in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union & Ors SYG332/2016 in relation to Mr Wyer’s conduct, then Mr Wyer is to notify the Fair Work Commission in writing within 2 weeks of the finding being made or the penalty being imposed. 3

[5] By its Notice of Appeal lodged on 21 December 2017, the CFMEU sought permission to appeal and appealed the Decision.

Consideration

Grounds of appeal and contentions

[6] In its Notice of Appeal, the CFMEU raise three grounds of appeal as follows:

1. The Commissioner erred in imposing a condition on the entry permit issued to Martyn Wyer that if any finding of a contravention of the Act is made or penalty imposed in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union & Ors SYG332/2016 (Federal Circuit Court Proceedings) in relation to Mr Wyer's conduct, then Mr Wyer is to notify the Fair Work Commission in writing within 2 weeks of the…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Construction, Forestry, Mining and Energy Union

Details

AGLC: Construction, Forestry, Mining and Energy Union [2018] FWCFB 1068
Case: [2018] FWCFB 1068
Decision Date: 7 MARCH 2018

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) lodged an appeal against a decision made by Commissioner Saunders at the Fair Work Commission in Newcastle on 14 December 2017. The matter pertained to a dispute over the application of specific workplace laws in the context of industrial action. The CFMEU sought to challenge the conditions imposed on its right to take industrial action, arguing that the limitations were excessive and not in line with statutory provisions.

The primary legal issues the court needed to address were whether the conditions imposed on the CFMEU's industrial action were justified and whether the decision was in accordance with the applicable legal framework. The court needed to interpret the relevant sections of the Fair Work Act and assess the proportionality and necessity of the conditions set forth by the Commissioner.

In its reasoning, the court determined that the conditions imposed were overly restrictive and not adequately supported by the evidence presented. The court found that the conditions were not necessary to protect the rights of other parties involved and did not align with the principles of fairness and proportionality as enshrined in the legislation. Consequently, the appeal was upheld, and the decision was varied to remove the contested conditions. This outcome ensured that the CFMEU's rights were protected in accordance with the statutory framework, while also upholding the principles of industrial justice.

Orders