Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate

[2016] FWC 4593

[2016] FWC 4593

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Construction, Forestry, Mining and Energy Union
v
Director of the Fair Work Building Industry Inspectorate
(C2016/4195)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 12 JULY 2016

Appeal against decision [[2016] FWC 3322] of Vice President Watson at Melbourne on 31 May 2016 in matter number RE2016/363 - Stay not granted.

[1] In a decision 1 issued on 31 May 2016, Vice President Watson determined an application made for the issue of an entry permit to Mr Alex Tadic. Having considered the provisions of ss.513 and 514 of the Fair Work Act 2009 (the FW Act), the Vice President confirmed that he was not satisfied that Mr Tadic, who is an official of the Construction, Forestry, Mining and Energy Union (the CFMEU), was a fit and proper person to hold a right of entry permit. Mr Tadic’s entry permit also expired on 31 May 2016. This entry permit was returned to the Fair Work Commission (the FWC) on 3 June 2016.

[2] On 21 June 2016 the CFMEU lodged an appeal against the Vice President’s decision and sought a stay of that decision. This stay application was the subject of a telephone hearing on 7 July 2016. In this decision I have set out my reasons for concluding that I am not satisfied that a stay of the decision should be issued.

[3] I have applied the principles applicable to the determination of a stay application set out in Edghill v Kellow-Falkiner Motors Pty Ltd 2 the following terms:

“[5] In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospect of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.

[6] The Commission approaches applications for stay orders on the basis that, unless otherwise established, the order subject to appeal was regularly made.”

(references omitted)

The CFMEU submissions

[4] The CFMEU position is that it has, on appeal, an arguable case that the Vice President was in error in a number of respects. Whilst I have not addressed these arguments in detail, the asserted errors go to the CFMEU argument that the Vice President required Mr Tadic to meet a higher bar in order to establish that he was a fit and proper person, because he was an official of the CFMEU. Further, the CFMEU argue that the Vice President was in error in that he took into account extraneous or irrelevant matters including the existence of allegations in current Federal Court proceedings in which Mr Tadic is a respondent. Additionally, the CFMEU asserts that the Vice President was in error in that he took into account matters relating to contempt proceedings in which Mr Tadic was not a party and that his decision mistakes the facts relative to these proceedings.

[5] In terms of the balance of convenience considerations, the CFMEU advised that Mr Tadic is employed as an Occupational Health & Safety Field Officer/Organiser and that the absence of his right of entry permit will restrict his capacity to gain access to members and potential members and thus make addressing safety issues more difficult. The CFMEU advised that there has been no proven conduct against Mr Tadic since 2008 which supports the granting of a stay.

[6] The CFMEU foreshadowed that, if the stay was granted it would seek an extension of Mr Tadic’s entry permit pursuant to s.516 of the FW Act. In this regard the CFMEU referred to, and indicated that it may rely on the same extension application made under s.516 which resulted in the Vice President extending the time for the expiry of Mr Tadic’s entry permit.

[7] The Director of the Fair Work Building Industry Inspectorate (Fair Work Building and Construction) opposed the granting of a stay on the basis that it asserted that there was no arguable case in favour of the appeal in that, consistent with the decision in Kellow-Falkiner Motors, the Vice President’s decision and corresponding order were “regularly made”.

[8] The Fair Work Building and Construction position was that, in any event, the stay application was misconceived such that there was no order capable of being stayed. In this regard it asserted that the CFMEU was effectively seeking to use a stay application in order to pursue a new entry permit for Mr Tadic in a manner which was beyond the FWC jurisdiction. On this basis, Fair Work Building and Construction submitted that the balance of convenience mitigated strongly against a stay order being granted.

Conclusions

[9] I am satisfied that there is an arguable case in terms of both a grant of permission to appeal and the appeal itself. In expressing that view, I have had regard to each of the appeal grounds and the decision under appeal.

[10] However, I am not persuaded that the balance of convenience favours a stay in these circumstances. The nature of the Vice President’s decision is significant in this respect. That decision refused an application for the issuing of an entry permit. It is in stark contrast to the circumstances relied upon by the CFMEU in CFMEU v Office of the Fair Work Building Industry Inspectorate T/A Fair Work Building and Construction, 3 which decision dealt with a stay application with respect to a decision to suspend and revoke certain entry permits. Almost by definition, the decision now under appeal is incapable of being stayed and the matter must simply be determined on appeal. A stay order in these circumstances cannot be taken to re-establish entry rights for Mr Tadic where those entry rights do not now exist, or to resurrect any rights which formerly existed. This becomes particularly clear when Mr Tadic’s particular circumstances are considered.

[11] Mr Tadic’s entry permit has expired and has been returned to the FWC. The capacity for s.516 of the FW Act to be utilised to provide for an extension of that permit in these circumstances is, at best, tenuous. Section 516 states:

“516 Expiry of entry permit
(1) Unless it is revoked, an entry permit expires at the earlier of the following times:

(a) at the end of the period of 3 years beginning on the day it is issued, or that period as extended under subsection (2);
(b) when the permit holder ceases to be an official of the organisation that applied for the permit.

(2) The FWC may extend the period of 3 years referred to in paragraph (1)(a) by a specified period if:

(a) the organisation that applied for the permit (the old permit) has applied for another entry permit for the permit holder; and
(b) the application was made at least 1 month before the old permit would otherwise have expired under that paragraph; and
(c) the FWC is satisfied that the old permit is likely to expire before the FWC determines the application.

(3) The period specified must not be longer than the period that the FWC considers necessary for it to determine the application.

(4) The FWC must not extend the period under subsection (2) if:

(a) the FWC has requested or required the organisation or permit holder to provide copies of records or documents, or to provide any other information, in relation to the application; and
(b) the organisation or permit holder has not complied with the request or requirement; and
(c) the FWC is satisfied that the organisation or permit holder does not have a reasonable excuse.”

[12] I am not satisfied that s.516(2) permits a new application to be made pursuant to this section. Even if a new application of this nature was to be made, I am not persuaded that it would be resolved prior to the resolution of this appeal. Further, even if the CFMEU seek to rely on its earlier application to extend Mr Tadic’s entry permit and assert that this application can be reactivated, consequent upon the expiry of Mr Tadic’s permit, Fair Work Building and Construction has confirmed that it would strongly oppose such an approach so that the matter would require substantial further consideration. I am not satisfied that considerations of that nature could, or would, be resolved prior to the determination of this appeal.

[13] Consequently, I do not consider that the balance of convenience weighs in favour of a stay being issued in these circumstances. The stay application is refused on this basis.

Appearances:

N Campbell counsel for the Construction, Forestry, Mining and Energy Union.

B Avallone counsel for Director of the Fair Work Building Industry Inspectorate.

Hearing details:

2016.

Adelaide (by telephone):

July 7.

 1   [2016] FWC 3322

 2   Print S2639 (24 January 2000)

 3   [2016] FWC 1692

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