Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate T/A Fair Work Building and Construction
[2016] FWCFB 3241
•27 May 2016
| [2016] FWCFB 3241 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Director of the Fair Work Building Industry Inspectorate T/A Fair Work Building and Construction
(C2016/569)
VICE PRESIDENT CATANZARITI | SYDNEY, 27 MAY 2016 |
Appeal against decision [2016] FWC 811 of Vice President Watson at Sydney on 7 March 2016 in matter number RE2014/1389; permission to appeal granted; appeal upheld by consent; parts of the decision under appeal and consequent orders quashed; matter remitted for re-hearing.
[1] On 24 December 2015, Vice President Watson made findings 1 (first Decision) in relation to an application by the Director of the Fair Work Building Industry Inspectorate (Director) under s.508 of the Fair Work Act 2009 (Act) that certain Construction, Forestry, Mining and Energy Union (CFMEU) officials had misused their rights of entry. On 7 March 2016, Vice President Watson issued a decision2 (second Decision) in relation to the s.508 application in which the Vice President concluded inter alia that it was appropriate to suspend, and, in some instances, to revoke the entry permits of certain officials of the CFMEU. Orders giving effect to the second Decision were issued on 16 March 2016.3 The Orders also prescribed time periods in which certain CFMEU officials were banned from being issued entry permits.
[2] On 11 March 2016, the CFMEU lodged an appeal against the second Decision, and noted in its Notice of Appeal that it sought a stay of several of the orders in the Vice President’s second Decision. On 18 March 2016, a stay of the Orders (excluding the orders against Mr Kera and Mr Parker) and of the second Decision was granted. Vice President Watson’s first Decision was not affected by the stay order and is not challenged on appeal.
[3] At the hearing on 11 May 2016, Mr Reitano of Counsel sought permission to appear for the CFMEU and Mr Neil of Senior Counsel sought permission to appear for the Director. Given the complexity of the matter, and having regard to s.596 of the Act, permission was granted to both parties to be represented.
[4] At the commencement of the hearing we informed the parties that after considering the written submissions and the authorities relating to the dispute, we were of the preliminary view that this is a matter where permission to appeal should be granted. 4 We also informed the parties that we were of the preliminary view that the second Decision might not contain sufficiently adequate reasons thereby resulting in some procedural unfairness.5
[5] In addition, in written submissions and at the hearing, the Director had conceded that because the CFMEU Queensland Branch (CFMEUQ) was not a party to the proceedings and was not heard in the matter, the Orders directed to the CFMEUQ should be quashed. 6 As a result of this concession, and in light of the Full Bench’s preliminary view, we proposed that the appeal be upheld, the second Decision be quashed, the Orders (subject to the exclusions discussed further below) be quashed, and the matter be remitted to Vice President Watson for a full rehearing to deal with the procedural fairness points, excluding the question of any orders directed to the CFMEUQ, which by consent of the parties would be quashed and not re-agitated.7
[6] The Director expressed its consent to the proposal, on the condition that the matter be remitted to Vice President Watson. 8
[7] The CFMEU informed us that it opposed remittal to the Vice President. The CFMEU contended that it would be fairer if the matter was remitted to a different member of the Commission. The CFMEU relied on Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal 9(Northern NSW) in which Davies and Foster JJ observed:
“If a decision has been set aside for error and remitted for rehearing, it will generally seem fairer to the parties that the matter be heard and decided again by a differently constituted tribunal.”
[8] In response, the Director posited that the power to remit a matter is conferred by s.607 of the Act. 10 The Director submitted that s.607 of the Act is neutral as to whether a matter should be remitted to any particular member of the Commission. The Director further submitted that there is no practice of the Commission of which he was aware that would dictate that in a case of this kind the matter ought not go back to the member who dealt with it at first instance. In these circumstances, the Director contended that the matter should be remitted to the Vice President.
[9] After considering the contentions of the parties, we informed the parties that if the appeal is upheld on the grounds expressed in our preliminary view, we were not persuaded that it would be inappropriate to remit the matter to the Vice President. However, given the strong objection to the matter being remitted to the Vice President expressed by the CFMEU on the basis of the principle articulated in Northern NSW, we thought it preferable for the matter to be remitted to another member of the Commission for rehearing.
[10] The Director consented to this proposal and made two observations to which the CFMEU did not object. Firstly, the first Decision of the Vice President would not be affected by any decision we make. The first Decision would found the factual basis for any further decision or order (if any) made under s.508 by a member to whom the matter is remitted.
[11] Secondly, the Director maintained that the matter be remitted for the purpose of a full rehearing of the question of what, if any, orders ought to be made under s.508 of the Act. All parties are at liberty to advance any of the positions that have been advanced in the context of the appeal, and none of those positions are shut out by the orders that we make.
Conclusion
[12] The second Decision is attended by appellable error, in that it does not contain sufficiently adequate reasons and it makes findings against the CFMEUQ, which was not a party to the proceedings and was not heard in the matter. Permission to appeal is granted. The first Decision of the Vice President is not affected by this appeal.
[13] By consent:
(a) The appeal is upheld.
(b) The second Decision in [2016] FWC 811, save for that part which affects Mr Kera and Mr Parker, is quashed.
(c) The orders in PR577987 and PR578000 are quashed.
(d) The matter, being the question of what orders if any should be made arising from the first Decision, excluding the question of whether orders should be made against the CFMEUQ, is remitted to Vice President Catanzariti for a full rehearing.
[14] The stay order issued by Vice President Catanzariti on 18 March 2016 is set aside.
VICE PRESIDENT
Appearances:
Mr Reitano of Counsel for the Appellant
Mr Neil of Senior Counsel for the Respondent
Hearing details:
10am
11 May 2016
Sydney
1 [2015] FWC 6889.
2 [2016] FWC 811.
3 PR577986; PR577987; PR578000.
4 PN225 of the transcript.
5 PN225 of the transcript.
6 PN279 of the transcript.
7 PN225 of the transcript.
8 PN227 of the transcript.
9 [1990] FCA 642.
10 PN269 of the transcript.
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