Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch
[2017] FWCFB 3132
•5 JULY 2017
| [2017] FWCFB 3132 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
(C2017/1897)
VICE PRESIDENT CATANZARITI | SYDNEY, 5 JULY 2017 |
Appeal against decision [2017] FWC 1457 of Senior Deputy President Hamberger at Sydney on 4 April 2017 in matter number RE2016/1795. Right of entry permit, s 513(g), permission to appeal refused.
[1] On 4 April 2017, Senior Deputy President Hamberger (“SDP Hamberger”) issued a Decision, 1 which found that Mr Robinson was not a fit and proper person to hold an entry permit.
[2] On 10 April 2017, the CFMEU (“the Appellant”) lodged a Notice of Appeal, appealing the Decision made by the Senior Deputy President.
[3] We heard the appeal on 3 May 2017 and reserved our Decision. At the hearing, Mr G. White sought permission to appear for the Appellant. Given the complexity of the matter and having regard to section 596 of the Fair Work Act 2009 (“the Act”), permission was granted for the Appellant to be represented.
Decision at First Instance
[4] SDP Hamberger applied the factors in section 513(1) and found that Mr Robinson was not a fit and proper person to hold an entry permit for the following reasons:
● Mr Robinson was properly trained about the rights and responsibilities of permit holders; 2
● Mr Robinson was previously ordered by the Federal Court to pay a penalty under the Act;
● Mr Robinson has had a condition placed on his entry permit by the Commission; 3
● SDP Hamberger established that the Decisions in Bechtel v CFMEU (hereafter “Bechtel”), 4 Lendlease v CFMEU (hereafter “Lendlease”)5 and Director of the Fair Work Building Industry Inspectorate v Robinson (hereafter “Robinson”)6contained factors relevant to the question of whether Mr Robinson was a fit and proper person. SDP Hamberger stated these factors assisted in his assessment as to whether Mr Robinson would comply with his obligations as a permit holder in the future;
● Referring to Bechtel, SDP Hamberger drew on the finding that Mr Robinson knowingly bypassed usual entry procedures and walked on site unescorted, failing to comply with reasonable occupational health and safety requests. SDP Hamberger noted the decision was made in relation to a single entry that occurred around 5 years ago, and that Mr Robinson’s use of his own private vessel was spontaneous in that instance. These factors reduced the weight attached by SDP Hamberger on the findings in Bechtel; 7
● SDP Hamberger identified that the conduct of Mr Robinson in Lendlease occurred only around 3 months after penalties were imposed on Mr Robinson by the Federal Court, where it was held by Charlesworth J that Mr Robinson’s contravention was deliberate, not accidental but organised. Her Honour also held that no evidence was given to show why lawful means were not pursued to address employees’ grievances, and that there was no evidence to show Mr Robinson had gained any insight into the importance of compliance by union organisers with the requirements of the Act;
● SDP Hamberger noted the Appellant’s submission that the Commission should have positive regard to Mr Robinson admitting to the contravention before the Federal Court in Robinson and volunteering to have a condition placed on his permit; 8 and
● SDP Hamberger ultimately found that Mr Robinson was not a fit and proper person and, as a result, the application for an entry permit was refused.
The Appeal
[5] At the core of this appeal is whether SDP Hamberger was entitled to rely on previous findings of the Commission in Bechtel, Robinson, and Lendlease, in order to establish a track record of non-compliance with industrial law, and conclude that Mr Robinson was not a fit and proper person to hold an entry permit.
Permission to appeal submissions
[6] The Appellant submitted that the Decision at first instance is attended with sufficient doubt to warrant its reconsideration and that the Decision manifests an injustice if the appeal is not upheld due to the resulting impact on Mr Robinson’s employment and the impact on the Appellant generally.
[7] As such, the Appellant contended that permission to appeal should be granted.
Appellant’s submissions
[8] The Appellant submitted two appeal grounds with multiple sub-appeal grounds:
[9] First, the Appellant asserted that SDP Hamberger, in relying on the findings of the Lendlease matter, conflated the existence of jurisdictional fact as actual fact, which led to the inappropriate conclusion that Mr Robinson had been involved in organising unprotected industrial action. In support of this contention, the Appellant claimed that proceedings in the Lendlease matter were brought before Commissioner Hunt under section 418 of the Act. In that matter, the Commissioner had to decide whether she was satisfied there was unprotected industrial action being organised by the Appellant. The Appellant posited that the requisite state of satisfaction in proceedings arising under section 418 is different from finding facts sufficient to establishing a breach or contravention of the Act.
[10] Further, the Appellant contended the Commissioner’s findings regarding organisation of unprotected industrial action in that matter amounted to jurisdictional fact rather than a fact in the ordinary meaning of the term. The Appellant referred the Full Bench to Minister for Immigration and Multicultural Affairs v Eshetu (hereafter “Eshetu”) in support of this claim. 9 As a result, the Appellant asserted that SDP Hamberger could not rely on the findings in Lendlease to determine that Mr Robinson had engaged in unprotected industrial action.
[11] The Appellant also submitted that Commissioner Hunt mistook the facts before her when establishing that Mr Robinson had engaged in unprotected industrial action. The Appellant asserted that the extracts from the Lendlease decision describing Mr Robinson’s conduct, relied upon by SDP Hamberger to show non-compliance with industrial law, show lawful conduct protected by sections 415 and 346 of the Act. 10 The Appellant submitted that SDP Hamberger should have considered whether the conduct of Mr Robinson in Lendlease was lawful conduct, rather than relying on the findings of the Commissioner.
[12] The Appellant also posited that SDP Hamberger failed to provide sufficient evidence of Mr Robinson engaging in unprotected industrial action, since the evidence drawn from the Lendlease decision did not show illegal industrial action. Furthermore, to the extent that SDP Hamberger relied on other evidence, the Appellant argued that he failed to identify that evidence and failed to give sufficient reasons for his findings. 11
[13] Secondly, the Appellant contended SDP Hamberger erred in concluding there were no matters before him that would alter his assessment in relation to Mr Robinson’s fitness to hold a permit. The Appellant submitted that SDP Hamberger failed to account for a previous Order of Vice President Watson which suspended a suspension on Mr Robinson’s permit until July 2017. The Appellant asserted that this series of events reflected a level of satisfaction by the Commission that Mr Robinson was a fit and proper person to hold an entry permit for that period of time.
[14] The Appellant contended that the above grounds of appeal amount to multiple House v King errors by SDP Hamberger and, as a result, the Decision at first instance should be quashed and the appeal should be upheld. 12
Consideration
[15] An appeal under section 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. 13 There is no automatic right to appeal and an appeal may only be made with the permission of the Commission. Section 604 provides:
“Appeal of decisions
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made under the Registered Organisations Act by:
(i) the General Manager (including a delegate of the General Manager); or
(ii) the Registered Organisations Commissioner (including a delegate of the Commissioner);
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).
(3) A person may appeal the decision by applying to the FWC.”
[16] Subsection 604(2) requires the Commission to grant permission to appeal if 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. 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
[17] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 16 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.17
[18] We now turn to consider whether permission to appeal should be granted.
[19] The Appellant submitted that the requisite state of satisfaction in proceedings arising under section 418 of the Act is different to that required to find a breach of the Act. As a result, the Appellant contended that SDP Hamberger could not rely on the findings in Lendlease to conclude that Mr Robinson had been involved in unprotected industrial action, and was not a fit and proper person to hold a permit.
[20] It is clearly apparent to the Full Bench that SDP Hamberger did not rely solely on the findings in Lendlease. SDP Hamberger did not simply conclude that, as a result of the unprotected industrial action in Lendlease, Mr Robinson is not a fit and proper person to hold an entry permit. SDP Hamberger provided reasons beyond Lendlease, referring to the conduct of Mr Robinson in Bechtel and Robinson. SDP Hamberger also highlighted by comparison, the decision in JKC Australia LNG Pty Ltd v CFMEU & Ors 18(hereafter “JKC”), in that Mr Robinson had not given a statement admitting his past behaviour was inappropriate, nor had he made a commitment about his future behaviour, which were mitigating factors in JKC. SDP Hamberger also noted Mr Robinson did not attend the hearing and, most notably, Mr Robinson’s conduct in Lendlease occurred just months after he was subject to penalties in Robinson. These factors all contributed to the finding made by SDP Hamberger that Mr Robinson was not a fit and proper person to hold an entry permit. Therefore, we are not satisfied SDP Hamberger erred in applying his discretion and, as such, we are not satisfied that there is an arguable case of error in this instance.
[21] The Appellant then contended that the extracts from Lendlease relied upon by SDP Hamberger did not amount to unprotected industrial action by Mr Robinson but, in fact, showed lawful conduct protected by sections 415 and 346 of the Act. We note this is not an appeal of the Lendlease decision. The Commissioner in Lendlease determined the matter on the weight of the evidence before her. SDP Hamberger referred to this finding accurately. It should also be noted that the Lendlease decision was not appealed, although the Appellant claimed during oral submissions that this may have been a result of events that occurred “on the ground”. However, the findings in Lendlease remain and SDP Hamberger was entitled to refer to them. SDP Hamberger was, by virtue of section 513(g) of the Act, entitled to account for any matters he considered relevant to the decision on whether to grant an entry permit. Thus, we are not satisfied that he erred in exercising this discretion and, as such, we are not satisfied that there is an arguable case of error in this instance.
[22] The Appellant submitted that SDP Hamberger failed to take into account a previous Order of Vice President Watson, which had the effect of imposing a condition on Mr Robinson’s entry permit until July 2017. However, SDP Hamberger was clearly aware and took account of the Order of Vice President Watson at first instance. The fact that SDP Hamberger did not specifically mention this issue in his consideration does not, in our view, amount to any error in his Decision. It is a well-established principle that not every argument or submission made by a party needs to be addressed in consideration.
[23] We have considered all the material before us and we are not satisfied that the grounds put forward by the Appellant involve any issues which attract the public interest.
Conclusion
[24] For the reasons set out above, we are not satisfied for the purposes of section 604(2) of the Act that it would be in the public interest to grant permission to appeal.
[25] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
G. White for the Appellant.
Hearing details:
2017
Sydney:
3 May.
1 [2017] FWC 1457 .
2 s 513(1)(a); [2017] FWC 1457, [36].
3 [2017] FWC 1457, [39]; s 513(1)(e).
4 Bechtel Construction (Australia) Pty Ltd & Anor v CFMEU & Ors [2014] FWC 5900.
5 Lendlease Building Pty Ltd T/A Lendlease Building v Construction, Forestry, Mining and Energy Union [2016] FWC 7198.
6 Director of the Fair Work Building Industry Inspectorate v Robinson [2016] FCA 525.
7 [2017] FWC 1457, [42] – [43].
8 [2017] FWC 1457, [48].
9 Minister for Immigration and Multicultural Affairs v EshetuI (1999) 197 CLR 611, 130.
10 Fair Work Act (2009) s 415, s 346.
11 (2010) 194 IR 259, 16.
12 House v King (1936) 55 CLR 499.
13 This is so because on appeal the Commission has 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.
14 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 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].
15 [2010] FWAFB 5343 at [27], 197 IR 266.
16 Wan v AIRC (2001) 116 FCR 481 at [30].
17 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
18 [2016] FWC 536.
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