Construction, Forestry, Mining and Energy Union v Fair Work Commission - [2014] FWCFB 1443

[2014] FWCFB 1443

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Construction, Forestry, Mining and Energy Union
v
Fair Work Commission
(C2013/7662)

SENIOR DEPUTY PRESIDENT WATSON
DEPUTY PRESIDENT KOVACIC
COMMISSIONER WILSON

MELBOURNE, 28 FEBRUARY 2014

Appeal against decision [2013] FWC 9343 of Senior Deputy President O’Callaghan at Adelaide on 27 November 2013 in matter number RE2013/1710 - Appeal dismissed.

[1] On 11 November 2013, Senior Deputy President O’Callaghan instituted proceedings on his own motion, pursuant to s.508 of the Fair Work Act 2009 (the Act) (s.508) in RE2013/1710. The matter initially concerned entries into sites controlled by Lend Lease Pty Ltd (Lend Lease) on 30 October 2013 by officials of the South Australian Branch of the Construction, Forestry, Mining and Energy Union (CFMEU), but was later expanded to encompass later entries into Lend Lease sites and entry into sites controlled by other companies.

[2] The Senior Deputy President made three decisions arising out of RE2013/1710:

1. [2013] FWC 9343, a decision of 27 November 2013, dismissing an application by the CFMEU that he disqualify himself from further pursuing the matter because of an apprehension of bias arising from statements made in s.418 of the Act (s.418) proceedings on 31 October 2013, 1 November 2013 and, subsequently, statements in a decision issued on 1 November 2013 in a s.418 matter; 1

2. [2013] FWC 9860, a procedural decision of 16 December 2013, dismissing a jurisdictional application by the CFMEU that no further action should be taken in this matter pursuant to s.508 on the basis that, firstly, there is no jurisdiction to undertake what it described as a preliminary investigation into whether to initiate action under that section, and that there was no specific proposal to found such an action; and

3. [2013] FWC 10168, a decision of 23 December 2013, in which the Senior Deputy President found that the Lend Lease entries represent serious, deliberate and sustained misuse of entry rights by the CFMEU pursuant to s.508(1) of the Act and set down further proceedings in respect of action under s.508(2) of the Act and relisted the matter in respect of entries to other premises for further evidence.

[3] The CFMEU appealed each decision - [2013] FWC 9343 in C2013/7662 and the other two decisions in C2014/2631. Both appeals were heard by the Full Bench on 12 February 2014.

[4] This decision determines the appeal against the decision in [2013] FWC 9343 in C2013/7662.

[5] A decision in relation to the appeals against the decisions in [2013] FWC 9860 and [2013] FWC 10168 in C2014/2631 will be separately published at a later time.

Background to the appeal

[6] The background to the appeal concerns the origin of the initiation of the s.508 proceedings by Senior Deputy President O’Callaghan.

[7] That background commences with a 30 October 2013 application by Lend Lease 2 for the making of an order pursuant to s.418 binding on the CFMEU and several of its own and subcontractor…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FWCFB 1443
Decision Date: 28 FEBRUARY 2014

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) appealed against a decision made by the Fair Work Commission (FWC) on 27 November 2013. The dispute arose from an application to extend the time to file an application for review of an earlier decision of the Commission, which had been dismissed for being out of time. The appeal was heard in the Federal Court of Australia.

The primary legal issue before the court was whether the CFMEU's application to extend the time to file an application for review should be granted. This hinged on whether the CFMEU had a sufficient and satisfactory explanation for the delay in filing the review application. The court also needed to determine whether the delay in filing the review application caused any prejudice to the respondents.

The court found that the CFMEU did not provide a satisfactory explanation for the delay in filing the review application. The court held that the CFMEU's delay in filing the review application was unreasonable and unjustifiable, and that the delay had caused prejudice to the respondents. The court further held that the CFMEU had not shown any exceptional circumstances that would warrant an extension of time. Accordingly, the appeal was dismissed.

The court made no orders regarding costs.

Orders