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

[2014] FWC 545

[2014] FWC 545

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Construction, Forestry, Mining and Energy Union
v
Fair Work Commission
(C2014/2631)

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 23 JANUARY 2014

Appeal against decision [2013] FWC 9860 and [2013] FWC 10168 of Senior Deputy President O’Callaghan at Adelaide on 16 and 23 December 2013 in matter number RE2013/1710 - stay order granted.

[1] The following decision, now edited, was given extempore on 20 January 2014.

[2] This matter concerns appeals by Construction, Forestry, Mining and Energy Union (CFMEU) against two decisions of Senior Deputy President O’Callaghan, decisions of 16 December 2013 in [2013] FWC 9860 and 23 December 2013 in [2013] FWC 10168. In relation to each appeal the applicant, the CFMEU, has sought a stay of the decisions of the Senior Deputy President, the effect of which would be to suspend further proceedings in matter RE2013/1710 until the hearing and determination of the appeal.

[3] The principal to apply in relation to an application for a stay order and endorsed by the Full Bench in Kellow-Falkiner Motors Pty Ltd v Edghill 1 are:

“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.” 2

[4] The two other organisations putting submissions in RE2013/1710, have not put submissions in respect of the stay application, other than making some brief points relevant to the balance of convenience.

[5] Without going to each ground advanced by the CFMEU in the appeal, I am satisfied that it is arguable that Senior Deputy President O’Callaghan has erred in his decision of 23 December 2013 in [2013] FWC 10168 in a number of ways. First, I am satisfied that it is arguable that the Senior Deputy President has misapplied relevant authority and the terms of s.508 of the Fair Work Act 2009 (the Act) in his approach to determining whether or not the CFMEU has misused its rights under Part 3–4 — Right of entry, and in particular where it has done so in reliance upon the rights arising to it under Part 3–4 of the Act. Second, I am satisfied that it is arguable that Senior Deputy President O’Callaghan misapplied the evidence in relation to the use and misuse of the Part 3–4 rights in reaching his conclusions in his decision. Finally, I am satisfied that it is arguable that Senior Deputy President O’Callaghan has not provided adequate reasons for his decision in making global findings in relation to the Lend Lease evidence rather than findings as to, first, the use of the statutory rights and, second, the misuse of them in respect of the Lend Lease incidents.

[6] Without addressing all of the appeal grounds – and there are several others – that is sufficient to support a finding 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 respect of the decision in [2013] FWC 10168. I am also satisfied that the balance of convenience favours a stay of the decision of Senior Deputy President O’Callaghan in that decision. The effect of the stay will be to suspend the further proceedings in RE2013/1710 until after the hearing and determination of the appeal. Given the uncertainty as to the findings of Senior Deputy President O’Callaghan in relation to the use and misuse of the statutory right of entry, further proceedings to determine actions against the CFMEU under s.508 of the Act would be inappropriate because of the inconvenience to the parties in the event that the Senior Deputy President’s decision is interfered with by a Full Bench in whole or in part.

[7] An order staying the decision of Senior Deputy President O’Callaghan’s decision in [2013] FWC 10168 makes it unnecessary to separately stay the procedural decision in [2013] FWC 9860. The outcome of the appeal in relation to that decision will be known at the same time as the appeal in relation to [2013] FWC 10168. The effect of the stay in respect of [2013] FWC 10168, will have the effect that the proceedings will not continue until the hearing and determination of the appeal in any case. I have issued an order 3 staying the decision of Senior Deputy President O’Callaghan for those reasons.

SENIOR DEPUTY PRESIDENT

Appearances:

R Reitano for the Construction, Forestry, Mining and Energy Union.

S Dowd for Fair Work Building Commissioner.

N Olgilvie for Lend Lease Building Contractors Pty Ltd .

Hearing details:

2014.

Melbourne:

January 20.

 1   Print S4216 at para 4.

 2   Print S2639 at para 5.

 3   PR547011.

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