Construction, Forestry, Mining and Energy Union v Fair Work Commission

[2016] FWC 566

[2016] FWC 566

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions
Construction, Forestry, Mining and Energy Union
(C2016/140)
VICE PRESIDENT HATCHER	SYDNEY, 28 JANUARY 2016

Appeal against decision of General Manager at Melbourne on 15 January 2016 in matter

number R2016/1.

[1]        This decision reproduces in edited form the decision which was stated on transcript at

the conclusion of the hearing conducted in relation to this matter on 28 January 2016.

[2]        The Construction, Forestry, Mining and Energy Union (CFMEU) has lodged an

appeal, for which permission is required, against a decision of the General Manager of the

Commission made on 15 January 2016 pursuant to s.235(1) of the Fair Work (Registered

Organisations) Act 2009 (RO Act) authorising two members of the Commission’s staff to

inspect and make copies of or take extracts from the records kept by the CFMEU under ss.230

and 231 of the RO Act. The authorisation is required to be exercised between 10am and 5pm

on 29 January 2016.

[3]        The purpose of the authorisation was described by the General Manager, in

correspondence to the CFMEU dated 15 January 2016, in the following terms:

“In this case, I have authorised inspection of the CFMEU’s membership register to

enable me to determine whether s.348 certificates can be issued to FWBC. FWBC

informs me that whether or not the two individual members of the CFMEU is directly

relevant to its investigation, including in relation to any potential liability for

contraventions of the Fair Work Act. I consider authorising inspection so that the

FWBC can exercise powers or carry out functions under the legislative framework that

the RO Act forms part of, is a proper exercise of powers under s.235(1).”

[4]        The CFMEU has applied for the decision under appeal to be stayed pending the

hearing and determination of the appeal. That application is the subject of this decision.

[5]        The principles applicable to the determination of stay applications in this jurisdiction

are well-established. In order for a stay to be granted, the Commission must be satisfied that

there is an arguable case with some reasonable prospects of success, in respect of both the

question of permission to appeal and the substantive merits of the appeal. In addition, the

balance of convenience must weigh in favour of the decision under appeal being stayed. Each

of the two elements referred to must be established before a stay order will be granted.
[2016] FWC 566

[6]        In respect of the requirement for an arguable case, the required assessment of an

appeal’s prospects of success is necessarily of a preliminary nature only, since the

Commission will not have had the benefit of hearing the appellant’s full argument and may

not have had the opportunity to comprehensively peruse the case materials.

[7]        In this connection, the CFMEU’s case is that the authorisation was beyond power

because it was made for an ultimate purpose that was beyond the scope and objects of the RO

Act and was not a purpose for which the power in s.235(1) was conferred. It referred in that

connection to two decisions of Deputy President Moore, as he then was, in Australian

1

Federation of Air Pilots v Hamilton Island Enterprises (No 1) and Australian Federation of

2

Air Pilots v Hamilton Island Enterprises (No 2) .

[8]        I am satisfied that the CFMEU’s case gets over the line as being one that is arguable

with reasonable prospects of success. I certainly could not conclude at this point in time that

is unarguable.

[9]        I consider that the balance of convenience clearly favours the grant of a stay. If a stay

is not granted, the appeal would be rendered nugatory in that the authorisation would be

exercised tomorrow and there would be nothing restraining the issue of a s.348 certificate.

The Director of the Fair Work Building Industry Inspectorate, who appeared at the hearing of

the stay application, properly conceded that there was no particular urgency associated with

the aspect of its investigation which formed the purpose of the authorisation. He also

identified that there were other legal mechanisms by which he could obtain the information

sought if necessary.

[10]      I will therefore grant the stay application sought by the CFMEU subject to there being

an expedited hearing of the appeal. I order that the authorisation issued by the General

Manager on 15 January 2016 be stayed pending the determination of the CFMEU’s appeal.

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The stay order will be separately published.

VICE PRESIDENT

Appearances:

R. Reitano of counsel and P. Boncardo for the Construction, Forestry, Mining and Energy

Union.

M. Follett of counsel for the Director of the Fair Work Building Inspectorate.

Hearing details:

[2016] FWC 566

2016.

Sydney:

28 January.

Printed by authority of the Commonwealth Government Printer

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1

(1989) 32 IR 44

2

(1989) 32 IR 46

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PR576510