| [2015] FWCFB 5297 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Bechtel Construction (Australia) Pty Ltd; Bechtel Australia Pty Ltd
(C2015/3318)
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)
v
Bechtel Construction (Australia) Pty Ltd; Bechtel Australia Pty Ltd
(C2015/3319)
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Bechtel Construction (Australia) Pty Ltd; Bechtel Australia Pty Ltd
(C2015/4830)
VICE PRESIDENT CATANZARITI | MELBOURNE, 3 AUGUST 2015 |
Appeal against decision [2015] FWC 4415 of Deputy President Lawrence at Sydney on 1 July 2015 in matter number C2015/4521.
[1] The following decision, now edited was issued during proceedings conducted on 31 July 2015.
[2] This is an appeal by the CFMEU, CEPU and AMWU (Appellants) against a decision 1 (Decision) of Deputy President Lawrence made on 1 July 2015 in relation to an application made by Bechtel Construction (Australia) Pty Ltd and Bechtel Australia Pty Ltd (Respondents) pursuant to s.418 of the Fair Work Act 2009 (the Act).
[3] We have had the opportunity of considering and taking into account the written and oral submissions of the parties in reaching our decision.
[4] This morning we asked the parties to deal initially with whether this appeal should be upheld on the basis of procedural fairness grounds alone. We heard from the Respondents, having read the submissions of the Appellants. We note the evidentiary material filed in support of the application, the subject of this appeal, was served on the Appellants approximately an hour before the hearing commenced. This included a nine-page affidavit with attachments and a further two-page affidavit. The matters canvassed in this material dealt with issues including whether there was an on-going dispute on health and safety.
[5] These issues are matters that must be considered in a section 418 application when deciding whether there is industrial action and whether that industrial action is protected, should stop or should not have occurred or should not be organised. We are satisfied the filing of these materials one hour before the hearing did not allow the appellants sufficient time to consider the material to defend the proceedings.
[6] In our view Deputy President Lawrence misunderstood the application of the time limit in section 418. It does not require that matters be heard within 48 hours. Rather, it requires as far as practicable the Commission to determine an application for an order under section 418 within two days after lodgement.
[7] For completeness, having regard to the evidence before Deputy President Lawrence, we are satisfied that he could not have formed the view on material before him that any industrial action was being organised by at least two of the organisations that were Respondents of the application. In those circumstances the appeal is upheld in all matters and the orders of Deputy President Lawrence are quashed. The Commission is adjourned.
VICE PRESIDENT
Appearances:
G Silvaranman with A Heffernan for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).
R Reitano for the Construction, Forestry, Mining and Energy Union and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.
C J Murdoch for the Respondents.
Hearing details:
31 July
2015
Brisbane.
Printed by authority of the Commonwealth Government Printer
<Price code A, PR570112>
- AGLC
- Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Northern Territory Divisional Branch (CFMEU) v Bechtel Construction (Australia) Pty Ltd [2015] FWCFB 5297
- Case
- [2015] FWCFB 5297
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the Deputy President correctly exercised his discretion in declining to enforce a clause in the workplace agreement that pertained to the dismissal of an employee. The CFMEU argued that the clause should be enforced as per the terms of the agreement, while Bechtel Construction contended that enforcing the clause would be unjust and contrary to the principles of natural justice. The court needed to determine whether the Deputy President's decision was legally sound and whether there were any errors in his application of the law.
The court examined the Deputy President's reasoning and found that he had correctly exercised his discretion in declining to enforce the clause in question. The Deputy President had considered the principles of natural justice and the overarching fairness of the agreement's terms. The court held that the Deputy President's decision was legally sound and that there were no errors in his application of the law. Consequently, the appeal was dismissed, and the decision of the Deputy President was upheld.
The final orders of the court were that the appeal by the CFMEU was dismissed, and the decision of the Deputy President, dated 1 July 2015, was affirmed. The clause in the workplace agreement concerning the dismissal of an employee would not be enforced, as determined by the Deputy President.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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