Construction, Forestry, Mining and Energy Union v Director of the Fair Work and Building Industry Inspectorate
[2016] FWCFB 5067
•19 AUGUST 2016
| [2016] FWCFB 5067 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Director of the Fair Work and Building Industry Inspectorate
(C2016/892)VICE PRESIDENT HATCHER | SYDNEY, 19 AUGUST 2016 |
Appeal against decision [2016] FWC 1984 of Senior Deputy President Richards at Brisbane on 30 March 2016 in matter number RE2015/1896.
Decision of Vice President Hatcher and Commissioner Bissett
Introduction and background
[1] The Construction, Forestry, Mining and Energy Union (CFMEU) has lodged an appeal, for which permission to appeal is required, against a decision of Senior Deputy Richards issued on 30 March 2016 1 (Decision). In that Decision, the Senior Deputy President refused the CFMEU’s application lodged on 18 December 2015 for an entry permit to be issued pursuant to s.512 of the Fair Work Act 2009 (FW Act) to one of its officials, Mr Michael Davis. The CFMEU’s single ground of appeal was that the Senior Deputy President erred “in failing to take into account a relevant consideration, namely whether the imposition of conditions would render Mr Davis fit and proper to hold a permit.”
[2] Under s.512 of the FW Act, the Commission is empowered, on application by an organisation, to issue an entry permit to an official of the applicant organisation if the Commission is satisfied that the official “is a fit and proper person to hold the entry permit”. An entry permit issued under s.512 allows the official to whom it is issued to exercise the rights of entry onto premises conferred by Div.2 of Pt.3-4 of the FW Act subject to the conditions and obligations provided for in the Division.
[3] In relation to the Commission’s consideration of an application for the issue an entry permit under s.512, s.513(1) provides:
513 Considering application
(1) In deciding whether the official is a fit and proper person, the FWC must take into account the following permit qualification matters:
(a) whether the official has received appropriate training about the rights and responsibilities of a permit holder;
(b) whether the official has ever been convicted of an offence against an industrial law;
(c) whether the official has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving:
(i) entry onto premises; or
(ii) fraud or dishonesty; or
(iii) intentional use of violence against another person or intentional damage or destruction of property;
(d) whether the official, or any other person, has ever been ordered to pay a penalty under this Act or any other industrial law in relation to action taken by the official;
(e) whether a permit issued to the official under this Part, or under a similar law of the Commonwealth (no matter when in force), has been revoked or suspended or made subject to conditions;
(f) whether a Court, or other person or body, under a State or Territory industrial law or a State or Territory OHS law, has:
(i) cancelled, suspended or imposed conditions on a right of entry for industrial or occupational health and safety purposes that the official had under that law; or
(ii) disqualified the official from exercising, or applying for, a right of entry for industrial or occupational health and safety purposes under that law;
(g) any other matters that the FWC considers relevant.
[4] Under s.515 of the FW Act, an entry permit may be issued with conditions. The section provides:
Conditions on entry permit
(1) The FWC may impose conditions on an entry permit when it is issued.
(2) In deciding whether to impose conditions under subsection (1), the FWC must take into account the permit qualification matters.
(3) The FWC must record on an entry permit any conditions that have been imposed on its use (whether under subsection (1) or any other provision of this Part).
(4) If the FWC imposes a condition on an entry permit after it has been issued, the permit ceases to be in force until the FWC records the condition on the permit.
(5) To avoid doubt, a permit holder does not contravene an FWC order merely because the permit holder contravenes a condition imposed on his or her permit by order (whether the condition is imposed at the time the entry permit is issued or at any later time).
[5] Prior to the Federal Court Full Court decision in Maritime Union of Australia v Fair Work Commission 2, members of the Commission had generally taken the approach that the consideration of the imposition of conditions on a permit under s.515 did not properly arise unless and until a decision had been made under s.512 that the relevant official was a fit and proper person to hold an entry permit and that an entry permit should be issued to him or her. However the Full Court, in judicially reviewing the decisions of a delegate and, on appeal, a Full Bench of the Commission which followed this approach, determined that it was incorrect. The Full Court relevantly stated:
“The imposition of conditions - s 515
[30] Jurisdictional error on the part of the delegate and the Full Bench, however, has been exposed in their respective construction and application of the power to impose conditions contained in s 515 of the Fair Work Act.
[31] The reasoning of the delegate in respect to s 515 was Delphic. Those reasons recorded the submission as follows:
[15] In its submissions, the MUA concedes that, given the length of time that has elapsed between the last occasion such training was undertaken by Mr Tracey and the lodgement of the application in this matter “it may be appropriate to make further training a condition of the permit being issued”.
The following conclusion implicitly rejected that submission:
[67] Having carefully considered all of the available circumstances in this matter and having particular regard to the permit qualification matters for the purposes of s. 512 of the Act, I have concluded that I am not satisfied that Mr Tracey is a “fit and proper person” and accordingly, I must refuse the application to issue a permit.
The reasoning of the Full Bench was more explicit. The Full Bench concluded that the power to impose conditions was enlivened only once a conclusion had been reached that a person was a fit and proper person. The reasoning of the Full Bench thus stated in part as follows:
[43] It is firstly to be observed that the exercise of the power to impose a condition on an entry permit when it is issued is discretionary. Secondly, an entry permit will only be issued if the Commission is satisfied that the officer of the applicant for a permit is a fit and proper person to hold an entry permit. If the Commission is not satisfied that the officer is a fit and proper person to hold an entry permit, there is no power in s.512 to issue the permit. It must follow that the question of whether the Commission will impose a condition on an entry permit when it is issued will arise only after the Commission is first satisfied that the officer of the applicant for a permit is a fit and proper person to hold the permit.
[44] As s.512 makes clear, entry permits may only be issued to a person whom the Commission is satisfied is a fit and proper person to hold an entry permit. It would undermine the legislative intent that underpins s.512 if a person who is assessed as not being a fit and proper person to hold an entry permit could nevertheless be issued with such a permit merely by the imposition of conditions. The power to impose a condition under s.512 seems to us to be exercisable usually after the Commission is satisfied that a relevant official is a fit and proper person to hold an entry permit but there is some concern, for example about the past conduct of the official having regard to the permit qualification requirements in s.513(1), which falls short of rendering that official unsuitable to hold an entry permit. It may also be the case that in an appropriate application the question whether a person is a fit and proper person to hold an entry permit is very finely balanced and the imposition of a condition might tip the balance in favour of the level of satisfaction required.
[32] With respect to the Full Bench, its approach to the construction of s 515 was erroneous. First, the construction failed to pay sufficient attention to the text of the provision. The text of s 515(1) (“when[an entry permit]is issued”) stands in contradistinction to that of s 515(4) (“after it has been issued”), suggesting that s 515(1) contemplates consideration of whether conditions should be imposed conjointly with consideration of whether the official for whom the permit is sought is a “fit and proper person to hold the entry permit”.
[33] Second, the Full Bench’s concern that it would “undermine the legislative intent that underpins s.512 if a person who is assessed as not being a fit and proper person to hold an entry permit could nevertheless be issued with such a permit merely by the imposition of conditions”, begs the question as to the nature of the assessment required by s 512.
[34] At [25], the Full Bench correctly stated that the question of whether an official is a fit and proper person to hold a permit will necessarily require a consideration of the rights the holder of an entry permit may exercise, the limitations on and conditions attaching to the exercise of those rights, and the responsibilities that must be discharged in the exercise of those rights. The Full Bench went on to state that “[t]hese are all to be found in Part 3-4 of the Act”. It is here that the Full Bench, with respect, fell into error. Certainly, some limitations and conditions are found within the Fair Work Act: a requirement to give notice of an intended entry is one example (s 487); a requirement that a permit holder exercising a right of entry does not “intentionally hinder or obstruct any person, or otherwise act in an improper manner” is another (s 500). However, the conditions that are specifically set forth in the Act need not be exhaustive, because the Commission is empowered by s 515 to impose others.
[35] Once it is recognised that the assessment of fitness and propriety is to be made by reference to all of the applicable conditions upon the exercise of rights conferred by the grant of a particular permit, including any imposed under s 515, there is no undermining of legislative intent as the Full Bench suggested. This construction of s 515 is to be preferred, as it is consistent with the discernible legislative intent to provide the Commission with a capacity to facilitate the balance contemplated by s 480 and, regarding the imposition of conditions, to do so harmoniously both in relation to the grant of a permit and the Commission’s supervision of its subsequent use (see ss 505(2), 505A(3)(a), 507(1) and 508(2)).
[36] This preferred construction of s 515 also avoids the tension inherent in the alternative construction. It would be surprising if the legislature intended that, having just determined that a person is a fit and proper person to hold an entry permit by reference to the matters set out in s 513(1), the Commission should as a second step impose further conditions on the permit directed to the same considerations (s 515(2)). In each of the two examples given by the Full Bench at [44] as to when such a two-step process might arise, there is a question as to whether the first step (satisfaction as to fitness and propriety) was properly reached. The examples relied upon by the Full Bench to support its contrary construction of s 515, with respect, are not persuasive.”
[6] The Full Court went on the state its conclusion about this issue as follows:
“[43] Both the delegate and the Full Bench have, with respect, misconstrued s 515 of the Fair Work Act. Conditions may be imposed pursuant to that section to remedy or address deficiencies or reservations in respect to an officer of an applicant, which deficiencies or reservations could otherwise lead to the conclusion that the person was not ‘fit and proper’.”
[7] Importantly, the Full Court’s identification of this jurisdictional error did not cause it to exercise its discretion to grant the writs of certiorari and mandamus. The Full Court said in this respect:
“[39] Notwithstanding the error in construction on the part of the delegate and the Full Bench, the relief sought by the Maritime Union should nevertheless be refused in the exercise of the Court’s discretion for the following two reasons.
[40] First, before the delegate the Maritime Union did not advance a submission as to the ambit of the power conferred by s 515 or as to its proper application to any permit issued to Mr Tracey.
[41] Second, it was common ground between the parties that it remains open to the Maritime Union to make a fresh application for an entry permit for Mr Tracey. Although the principal submission advanced on behalf of the Maritime Union on the limited construction of ss 512 and 513 has been rejected, the consideration of any such fresh application would differ from that in the instant case insofar as, in accordance with these reasons, the consideration of a fresh application would take into account the power to impose conditions under s 515 without the need for Mr Tracey to first be found a “fit and proper” person.”
The proceedings before the Senior Deputy President and the Decision
[8] There was no formal hearing of the CFMEU’s application before the Senior Deputy President, who initially proceeded upon the information contained in the declarations made on behalf of the CFMEU and by Mr Davis which accompanied the application. On 25 February 2016 the Senior Deputy President caused to be sent to the CFMEU an email which, after some introductory matters, stated:
“I note in the application that Mr Davis was penalised in Director, Fair Work Building Inspectorate v Cradden [2015] FCA 614 (“Cradden”) for contraventions of the Building and Construction Industry Improvement Act 2005 (Cth). The penalties imposed upon Mr Davis were in relation to conduct which occurred in 2012 and amounted to $20,000.00.
In the context of s.513(1)(g) of the Act, is it intended that Mr Davis will provide an examinable statement or statutory declaration that assists the Commission in reaching a view that despite the findings of the Court in Cradden it can be satisfied that he is a reformed character and is a fit and proper person to hold a right of entry permit? Such a statement may go to particular reasons why the prior conduct set out and as penalised by the Court in Cradden should not or no longer reflect upon Mr Davis’ fitness to exercise the relevant statutory powers.
It would be appreciated if the union could provide a response to the above as soon as possible and by COB on 10 March 2016.”
[9] On 18 March 2016 a submission, apparently in response to the above email, was received from lawyers acting for the CFMEU. The submission addressed the nature of the “fit and proper person” test in s.512 and each of the permit qualifications matters in s.513(1). In relation to s.513(1)(d), the submission included a recitation of the facts upon which the Federal Court proceeded in the Cradden matter to impose penalties on Mr Davis. The submission also contained the following:
“Conditions
27. The Commission is able to impose conditions on a permit holder, and is able to do so prior to the finding of fitness etc. To the extent the Commission has some residual concern relating to Mr Davis’ fitness etc., it is able to craft conditions which would meet those concerns. In the event that it is minded to consider the imposition of conditions, either before or after the issue of a permit, the applicant would seek to be heard on what conditions the Commission might have in mind.”
[10] The submission did not address the query in the 25 February 2016 email as to whether Mr Davis would provide “an examinable statement or statutory declaration that assists the Commission in reaching a view that despite the findings of the Court in Cradden it can be satisfied that he is a reformed character and is a fit and proper person to hold a right of entry permit”. On 21 March 2016 the Senior Deputy President caused to be sent to the CFMEU’s legal representatives inquiring, among other things, whether the CFMEU’s submission of 18 March 2016 was in response to the email of 25 February 2016, and whether the CFMEU sought to have its application determined “from the materials at hand”. The response to both these inquiries by the CFMEU’s legal representatives (in an email dated 22 March 2016) was in the affirmative. It is apparent that the Decision of the Senior Deputy President subsequently issued on 30 March 2016 was made in reliance upon the response received from the CFMEU’s legal representatives.
[11] In the Decision, the Senior Deputy President determined that Mr Davis was not a fit and proper person to hold an entry permit and dismissed the CFMEU’s application in that basis. The matter assigned the most weight in the Senior Deputy President’s consideration was the Federal Court decision in Director, Fair Work Building Inspectorate v Cradden 3, in which Mr Davis was found to have contravened s.44 of the Building and Construction Industry Improvement Act 2005 (Cth) on 13, 14, 15 and 17 March 2012 and penalised a total of $20,000. In relation to this matter the Senior Deputy President concluded:
“[46] Even if not at the most egregious end of the spectrum, Mr Davis’ conduct was in disregard to industrial laws, and he participated in conduct along with other members of the CFMEU about which the Court made adverse observations. I have set these out above. Mr Davis’ conduct was not exhibited in the context of the exercise of powers under a right of entry or in relation to some alternative basis for entering an employer’s premises. But the conduct nonetheless was in relation to industrial laws that are intended to regulate orderly relations and interactions between employers and employees. Mr Davis’ conduct demonstrated a lack of regard to the rights of an employer and employees and sub-contractors to go about their business, as it may be respectively, without hindrance or provocation. There is no evidence before me that merely because time has passed and a right of entry training module has been completed that Mr Davis is a changed man in regard to his prior actions and attitudes.
[47] As I have noted above, there is no evidence before me, I add, of Mr Davis now being remorseful for his prior conduct, or having expressed contrition in some form or manner.
[48] Thus, in all, there is no basis in evidence that the community can have confidence that the conduct and attitudes which Mr Davis exhibited, and as recorded by the Court, will not be further exhibited in the context of other related industrial laws, pertaining this time to a right of entry permit.”
[12] There is no issue that the Decision does not contain any consideration as to whether Mr Davis could be issued with an entry permit that was subject to conditions which might address the shortcomings which prevented the Senior Deputy President from finding that Mr Davis was a fit and proper person to hold an entry permit. It was on this basis that the CFMEU advanced its appeal ground that the Senior Deputy President had erred by not taking into account a relevant consideration. In support of this appeal ground, the CFMEU submitted:
- a decision-maker who fails to have regard to a matter to which the decision-maker is obliged or bound to have regard commits jurisdictional error;
- consequent upon the Full Court decision in MUA v FWC, s.515 of the FW Act was to be interpreted as obliging the Commission to take into account whether the imposition of conditions on an entry permit might render a person fit and proper to hold a permit;
- the decision in MUA v FWC was authority for the proposition that the determination of an application under s.512 required consideration of whether conditions should be imposed conjointly with the consideration of whether the official for whom the permit is sought is a fit and proper person to hold the entry permit;
- there were a number of decisions since MUA v FWC in which a permit had been able to be issued on the basis that conditions were imposed upon it;
- the issue raised by the appeal was an important one of principle which was likely to be relevant to future applications for the issue of entry permits, and thus warranted the grant of permission to appeal; and
- permission to appeal should also be granted because the Decision was attended by jurisdictional error and the public interest required its correction.
[13] The Director of the Fair Work Building Industry Inspectorate, who did not make any submissions at first instance but has elected to exercise his right under s.72 of the Fair Work (Building Industry) Act 2012 to make submissions in the appeal, submitted that:
- s.515 did not impose an obligation on the Commission to take into account whether the imposition of conditions might render a person fit and proper to hold an entry permit, and the Full Court decision in MUA v FWC did not support any contrary proposition;
- the power to impose conditions under s.515 was discretionary in nature, and the permit qualifications matters required to be taken into account under s.513 as part of the fitness and propriety assessment did not include a requirement to consider whether conditions should be imposed;
- the issue of the imposition of conditions was not a relevant consideration because the CFMEU did not at first instance submit that the Senior Deputy President had an obligation to consider this, nor did the CFMEU at any stage propose any conditions that might be imposed;
- a failure to take into account a relevant consideration would only constitute an error of law if it can be demonstrated that the decision might have been different if the consideration had been taken into account;
- there was no condition identified which might have addressed the Senior Deputy President’s primary concern about Mr Davis’ fitness and propriety, namely his lack of contrition and acknowledgement of responsibility for the contraventions found to have occurred in Cradden, and so there was no real possibility of a different outcome;
- permission to appeal should be refused because the appeal lacked merit, the CFMEU did not raise the issue of the imposition of permit conditions at first instance or attempt to address the Senior Deputy President’s concerns about Mr Davis’ fitness and propriety, any consideration of the imposition of permit conditions would not have changed the result, and the CFMEU was not precluded from bringing a new application for Mr Davis to be issued with a permit provided it was based on changed circumstances.
Consideration - permission to appeal
[14] As stated at the outset, there is no right to appeal under s.604 of the FW Act, and an appeal may only be made with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”, and permission to appeal may otherwise be granted on discretionary grounds.
[15] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 4 The public interest is not satisfied simply by the identification of error5, or a preference for a different result.6 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...” 7
[16] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 8 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.9 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.10
[17] We consider that the CFMEU’s submission that, in light of the Full Court’s decision in MUA v FWC, the Commission is obliged in its assessment of the “fit and proper person” test under s.512 to consider whether the test would be satisfied on the basis that an entry permit was issued with conditions under s.515 in circumstances where the test was not otherwise satisfied to be arguable. The jurisdictional error found by the Full Court in MUA v FWC was one which arose from an erroneous construction and exercise of the power to impose conditions in s.515. 11 Although not expressly stated in the Full Court’s decision, on one view the jurisdictional error identified by the Court is of the nature of that explicated by Gaudron J in Minister for Immigration and Multicultural Affairs v Yusuf12as follows:
“[41] For the purposes of mandamus and prohibition, a tribunal is said to have failed to exercise its jurisdiction if it has wrongly denied the existence of its jurisdiction or mistakenly placed limits on its functions or powers. If the tribunal wrongly holds it has no jurisdiction or is not authorised to make a particular decision, there is said to be "an actual failure to exercise jurisdiction". On the other hand, there is said to be a "constructive failure to exercise jurisdiction" when a tribunal misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided or misunderstands the nature of the opinion it is to form. A constructive failure to exercise jurisdiction may be disclosed by the tribunal taking an irrelevant consideration into account. Equally, it may be disclosed by the failure to take a relevant matter into account.”
[18] If a refusal, because of a misconstruction of s.515, to consider the “fit and proper person” test in the context of the possibility of issuing an entry permits with conditions constituted a failure to exercise jurisdiction, it is arguable that the corollary would be that the proper exercise of jurisdiction requires that such consideration be given at least where a conclusion has been reached that an official the subject of an application under s.512 is not otherwise a fit and proper person to be issued with a permit.
[19] However, we do not propose to determine this issue to finality because we do not consider in this case it is in the public interest to grant permission to appeal, or that permission should be granted on discretionary grounds. We have reached this conclusion for three reasons.
[20] First, the CFMEU did not advance any case before the Senior Deputy President, even in the alternative, that Mr Davis should be issued an entry permit with particular conditions that addressed any concerns about his fitness and propriety to hold an entry permit. As earlier set out, the email of 25 February 2016 caused to be issued by the Senior Deputy President clearly identified to the CFMEU a concern about Mr Davis’ fitness and propriety under s.512 arising from findings of contraventions made and penalties imposed by the Federal Court in Cradden. That email invited the CFMEU to address the concern by way of a statement or statutory declaration from Mr Davis - an invitation which the CFMEU did not take up, and indeed to which it failed even to respond. The email also gave the opportunity to the CFMEU to propose conditions to be imposed on an entry permit to address the Senior Deputy President’s concern arising from the decision in Cradden. The CFMEU failed to take any advantage of this opportunity.
[21] The CFMEU’s submission of 18 March 2016 did seek the opportunity to be heard if the Senior Deputy President was “minded to consider the imposition of conditions” on the basis of “some residual concern” as to whether Mr Davis was a fit and proper person to hold an entry permit. However the Senior Deputy President had not indicated that he was considering the imposition of conditions, and it should have been clear to the CFMEU that his concern about Mr Davis’ fitness and propriety was fundamental rather than “residual”. In that circumstance, we consider that it was incumbent upon the CFMEU to advise the Senior Deputy President that, in its view, it was necessary for him to consider the imposition of conditions if he had concerns about Mr Davis’ fitness and propriety, and to propose any conditions which it considered might be capable of meeting those concerns. Having not done so, we do not consider that permission to appeal should be granted in order to allow the CFMEU, in effect, to now advance a merits case which it failed to advance at first instance. 13
[22] The second reason is that the CFMEU, having not challenged the Senior Deputy President’s findings concerning Mr Davis’ fitness and propriety to hold an entry permit, did not even at the appeal stage propose any possible permit conditions that might address those findings and allow the conclusion that Mr Davis satisfied the “fit and proper person” test. If permission to appeal was to be granted and the CFMEU’s appeal was to be upheld, at the highest it could only result in a limited re-determination of the CFMEU’s application on the question of whether conditions should be imposed under s.515. This re-determination would necessarily proceed on the basis of the unchallenged findings of the Senior Deputy President concerning Mr Davis’ fitness and propriety having regard to the decision in Cradden. It is clear from the passage of the Decision earlier quoted, as well as elsewhere in the Decision, that the Senior Deputy President’s primary concern was that the absence of any evidence before him that Mr Davis had adjusted his attitude towards the need to comply with the law since the occurrence of the conduct the subject of the decision in Cradden, or that he was remorseful or contrite about that conduct, meant that there was no basis for confidence that Mr Davis would comply with the legal requirements pertaining to the exercise of rights of entry in the future. It is difficult to contemplate any condition upon an entry permit which would be capable of addressing this concern. The fact that the CFMEU was unable to identify any proposal for such a condition strongly suggests that any re-determination of its application would not lead to any different outcome.
[23] It is well established that permission to appeal may be refused on the ground that the appeal lacks utility because the ultimate outcome of the application before the Commission to which the appeal relates would not be affected by the outcome of the appeal, or that the appeal otherwise has no practical purpose, even if appealable error is demonstrated. 14 For the reasons we have explained, we consider that this appeal lacks utility in this sense.
[24] Third, as was confirmed in MUA v FWC 15, it is open for the CFMEU to make a fresh application for Mr Davis to be issued with an entry permit. It would be open in such an application for the CFMEU to adduce evidence from Mr Davis dealing with his attitude towards the need to comply with the legal requirements relevant to the exercise of rights of entry having regard to the findings made and penalties order in Cradden. It would also be open to the CFMEU in that context to propose conditions that might be imposed upon any permit that was issued to Mr Davis. Therefore no irrevocable prejudice to the CFMEU or Mr Davis will result from the refusal of permission to appeal.
Order
[25] Permission to appeal is refused.
Decision of Vice President Watson
[26] I have had the advantage of reading the decision of Vice President Hatcher and Commissioner Bissett. I agree with their conclusion that permission to appeal should not be granted in this matter. In addition to the three reasons for that conclusion expressed in paragraphs [20] – [24] of the decision I would add the following.
[27] The alleged failure to consider conditions when considering the application for a permit requires a consideration of the interaction between s.513 and s.515 of the Act. The Commission is required to consider the factors in s.513. That sub-section does not contain a specific reference to conditions but as a Full Court of the Federal Court has held, it is wrong in principle to exclude any consideration of a prospect of conditions in the decision making process.
[28] Under s.513 the Commission is required to consider “any other matters that the FWC considers relevant.” A failure to consider a matter because it is not considered relevant is of a different character to the error found to have occurred in MUA v FWC. The former is a permissible exercise of discretionary power. The error identified by the Full Court was an express refusal to consider the potential relevance of conditions until a positive finding of fitness and propriety was made. There was no express refusal to do so in this case and it appears to me that based on the submissions of the CFMEU and the nature of His Honour’s findings on fitness and propriety that His Honour did not consider that the imposition of conditions was a relevant matter in the case. There is no error in such an approach.
[29] Further, the contention of the CFMEU in this case, that the lack of any mention of conditions in His Honour’s decision leads to the conclusion that there was no consideration of conditions, is inconsistent with the established approach in appeals to avoid the application of a “fine appellant tooth comb”. It is not appropriate to review the wording of decisions in an effort to find errors in a decision which in many respects is merely a summary of the key issues in the case.
[30] The CFMEU contention needs to be tested by reference to the nature of the decision, the nature of the obligation to give reasons and the nature of submissions made to His Honour. The fundamental concern established by the evidence was the lack of any basis for confidence that Mr Davis would comply with legal requirements in the future. No specific conditions were proposed by the CFMEU to address this concern or any other matter. It was not a contested matter that conditions of a particular type would lead to a finding of fitness and propriety. It is well established that reasons for a decision must articulate the essential grounds for reaching a decision and must address material questions of fact and law in a manner which discloses the steps which lead to a particular result. However the reasons need not be lengthy or elaborate and need not spell out every detail of the reasoning process or deal with every matter of fact and law which was raised in the proceedings 16. In my view the CFMEU has failed to establish that His Honour did not consider the prospect of conditions. It appears to me that he did not consider that any conditions were relevant or would alter the result that he reached.
[31] As the majority observes, it is difficult to contemplate any condition upon an entry permit which would be capable of addressing the concerns about complying with legal requirements in the future. That appears to me to be obvious to all concerned in this case. In my view, the CFMEU has failed to establish any error in His Honour’s decision.
VICE PRESIDENT
Appearances:
E. White of counsel with L. Tiley solicitor for the Construction, Forestry, Mining and Energy Union.
R. Dalton of counsel with B. Vallence and F. Baldo for the Director of the Fair Work Building Inspectorate.
Hearing details:
2016.
Melbourne:
19 May.
1 [2016] FWC 1984
2 [2015] FCAFC 56
3 [2015] FCA 614
4 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]
5 GlaxoSmithKline Australia [2010] FWAFB 197 IR 266 at [24]-[27]
6 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 388, 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, 241 IR 177 at [28]
7 [2010] FWAFB 197 IR 266 at [24] - [27]
8 Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26]
9 Wan v AIRC (2001) 116 FCR 481 at [30]
10 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 241 IR 177 at [28]
11 [2015] FCA 614 at [30]
12 [2001] HCA 30, (2001) 206 CLR 323
13 See Nilsen (SA) Pty Ltd v CEPU[2016] FWCFB 3119 at [13]
14 See e.g. Bechtel Construction (Australia) Pty Ltd v Maritime Union of Australia[2013] FWCFB 4250 at [14]; Ferrymen Pty Ltd [2013] FWCFB 8025 at [48]; at [28]; New South Wales Bar Association v McAuliffe[2014] FWCFB 1663 at [28]; KCL Industries Pty Ltd [2016] FWCFB 3048.
15 [2015] FCAFC 56 at [41]
16 Barach v University of New South Wales [2010] FWAFB 3307 (4 May 2010). See also Re Astec Pty Ltd [1992] 45 IR 261 and the authorities referred to therein
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