Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd
[2015] FWCFB 2020
•23 APRIL 2015
[2015] FWCFB 2020
The attached document replaces the document previously issued with the above code on 23 April 2915.
At the end of paragraph 3 the citation should read [2015] FWCFB 1451
Christine Gambrill
Associate to Senior Deputy President Drake
Dated 28 April 2015
| [2015] FWCFB 2020 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
BHP Coal Pty Ltd
(C2015/38)
SENIOR DEPUTY PRESIDENT DRAKE | BRISBANE, 23 APRIL 2015 |
Appeal against decision [[2014] FWC 9205] of Deputy President Asbury at Brisbane on 17 December 2014 in matter number C2013/5996 and C2013/7725.
[1] This is an application for permission to appeal and, if granted, an appeal pursuant to s.604 of the Fair Work Act 2009 (the Act) from a Decision 1 and an Order2of Deputy President Asbury issued in Brisbane on 17 December 2014.
[2] In that decision, on the application of BHP Coal Pty Ltd (BHP), her Honour stayed two applications 3 lodged by theConstruction, Forestry, Mining and Energy Union - Mining and Energy Division (CFMEU). Her Honour concluded:
“[31] ......justice requires that the applications in C2013/5996 and C2013/7725 be stayed until 27 July 2016. Liberty to apply will be granted in the event that Mr Thompson requires the personal leave period that is subject of the application in C2013/5996 or there is a substantial change in the circumstances which lead to the stay Order being granted. The Order is also subject to the undertaking offered by BHP in relation to the effect of the disciplinary action subject of the dispute in C2013/7725 being provided to the Commission. An Order will issue on receipt of that undertaking.”
[3] The CFMEU appeals the Order of her Honour which stayed these applications pursuant to s.604 of the Act. The operation of s.604 is as follows:
“[9] An appeal under s.604 of the Act may only be pursued with the permission of the Commission. This would normally require an appellant to demonstrate an arguable case of appealable error and refer to other considerations which would justify the granting of permission to appeal. Subsection 604(2) requires the Commission to grant permission to appeal if it is satisfied that it is in the public interest to do so. Where permission to appeal is granted, the appeal proceeds by way of rehearing, with the powers of the Full Bench being exercisable only if there is error on the part of the primary decision-maker: see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission.” 4
[4] We consider the appellant's first Ground of Appeal determinative of the appeal:
“(a) The learned Deputy President acted beyond jurisdiction in making the decision against the Appellant in that the learned Deputy President denied the Appellant procedural fairness by:
i. refusing to hold a hearing when a hearing had been requested by the Appellant; and
ii. by finding that both parties sought to have the matter being determined on the papers when the Appellant did not.”
[5] On 22 October 2014 Deputy President Asbury issued Amended Directions. These are set out below:
“Dear Parties
I refer to your correspondence dated 22 October 2014 requesting an extension of time in which to provide material in relation to the above matter.
Your request has been considered by Deputy President Asbury and has been approved. The Directions issued in the decision dated 16 October 2014 are amended as follows:
1. The CFMEU files material in response to this issue by 4.00pm on 24 October 2014;
2. BHP Coal Pty Ltd files material in reply by 4.00pm on 31 October 2014; and
3. The parties advise the Commission by 4.00pm on 3 November 2014 whether a hearing will be required in relation to the merits of any stay.”
[6] On 3 November 2014 at 9:26 am BHP advised that it did not consider any hearing was required in relation to the merits of the stay application. On the same day at 2:24 pm the CFMEU advised that it did require a hearing in relation to the merits of the stay application.
[7] Her Honour dealt with the application on the papers and issued her decision on 17 December 2014 without providing the opportunity to be heard which she had foreshadowed in the Amended Directions.
[8] We are unaware of the circumstances that led to the CFMEU’s request for hearing not being implemented, but we note that it would be unusual for a member of the Fair Work Commission, having become aware of such request, to knowingly disregard it.
[9] At the hearing of the appeal in Brisbane on 3 March 2015 the CFMEU sought to call new evidence that went to the present likelihood of criminal proceedings and therefore whether there had been a substantial change in circumstances since the hearing before Deputy President Asbury. This application was opposed by BHP. Both parties also made extensive submissions regarding the basis on which Deputy President Asbury had ordered the stay of proceedings.
[10] We have determined that there was a failure of procedural fairness accorded to the CFMEU. We reject Mr Kenzie’s submission that her Honour’s Amended Directions of 22 October 2014 were speculative and that she did not necessarily intend to allocate a date for oral submissions if the parties requested it. We are satisfied that the Amended Directions of 22 October 2014 had a serious purpose.
[11] Unfortunately the CFMEU was not given an opportunity to make oral submissions. We are satisfied this was a denial of procedural fairness and an appealable error. We are satisfied that it is in the public interest to grant leave to appeal. On the basis of that finding we have decided to quash the Order of Deputy President Asbury.
[12] The parties made extensive submissions concerning the other grounds of appeal and, should leave be granted, the disposal of the merit issue determined by Deputy President Asbury. We are not persuaded that the merit of the applications originally listed before Deputy President Asbury should be determined by this Full Bench. There are two outstanding applications before Deputy President Asbury. The stay of proceedings will be set aside as a result of the operation of our Order. There may be evidence that there has been a substantial change in circumstances since her Honour's Order was issued. Those applications can be determined by her Honour in the ordinary course and her Honour can consider the evidence now presented by the CFMEU.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr B Docking for the appellant.
Mr R Kenzie for the respondent.
Hearing details:
2015
March 3
Brisbane
1 [2014] FWC 9205
2 PR559217
3 C2013/7725 and C2013/5996
4 [2015] FWCFB 1451
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