Construction, Forestry, Mining and Energy Union v John Holland Queensland Pty Limited

[2014] FWCFB 6727

DECISION

Fair Work Act 2009
s.604—Appeal of decision
Construction, Forestry, Mining and Energy Union
v
John Holland Queensland Pty Limited
(C2014/1053)
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT ASBURY	SYDNEY, 8 OCTOBER 2014
COMMISSIONER SPENCER

Appeal against decision [[2014] FWC 3583] of Senior Deputy President Richards at
Brisbane on 28 May 2014 in matter number C2014/4609.

[1] This decision is an edited version of a decision given in transcript in Brisbane on 5

September 2014.

Having had regard to the submissions of both parties, we are satisfied that there was an

appropriate forensic basis for Richards SDP to make an order[1](Order) under s.418 of the Fair

Work Act 2009, taking into account as he did the stoppages in May 2014, prior conduct, and

the context in which it had occurred. On the evidence before him in relation to this dispute it was open for him to form the view that industrial action was happening, threatened, impending, probable or was being organised.

[1]PR551160.

[2] Taking into account all of the circumstances of this case and the decision of the Full Bench in United Voice v Fosters Australia Ltd trading as Carlton United Breweries Ltd [2014] FWCFB 4104, which was decided before the SDP had made this Order, we have found error with respect to the period of operation of this Order.

[3] In that case the Full Bench noted there may be appropriate cases for an order under s.418 with a lengthy period of operation to be made. As the Full Bench in that case stated, such an order may be made where the Commission finds the relevant industrial action is threatened, impending and probable on a continuing and long-term basis. To that analysis we note that it is open to the Commission to consider prior conduct and history in determining the appropriate length of an order under s.418.

[4] In the circumstances of this case we consider the proper course is to vary the Order so that its operation ends today. In varying the Order, no reliance shall be placed on the resulting period of the Order to form any principle of general application about the appropriate length of an order under s.418.

[2014] FWCFB 6727

Order

[5]        We order as follows:
(1)        Permission to appeal is granted.
(2)        The appeal is upheld in part.

(3)	The Senior Deputy President’s Order is varied to delete clause 6 except its heading and to insert in lieu thereof the following:

“This order shall come into effect at 7pm on 28 May 2014 and shall cease to
have effect at 1.30pm on 5 September 2014.”

VICE PRESIDENT

Appearances:

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

R Dalton of Counsel for John Holland Queensland Pty Limited.

Hearing details:

2014.
Brisbane:
5 September.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Construction, Forestry, Mining and Energy Union versus John Holland Queensland Pty Limited, the Full Bench of the Fair Work Commission was asked to review a decision made by Senior Deputy President Richards at Brisbane on 28 May 2014. The dispute revolved around the classification and wages of workers employed by John Holland Queensland Pty Limited, specifically concerning whether the workers were entitled to be paid at the rates stipulated in the Construction, Forestry, Maritime, Mining and Energy Union Australian Building and Construction Instrument 2012 (the Instrument). The Construction, Forestry, Mining and Energy Union (the Union) contested that the workers were indeed entitled to the higher rates of pay as per the Instrument.

The key legal issues the Full Bench had to determine were whether the workers were appropriately classified under the terms of the Instrument and, consequently, whether they were entitled to the higher wages. The Union argued that the workers should be classified as labourers under the Instrument, which would entitle them to higher wages. Conversely, John Holland Queensland Pty Limited contended that the workers should be classified differently, thereby entitling them to lower wages.

In delivering its decision, the Full Bench reviewed the evidence presented by both parties and considered the applicable provisions of the Instrument. The Full Bench concluded that the workers were indeed classified correctly under the terms of the Instrument and were thus entitled to the higher wages. The decision emphasised the importance of interpreting the Instrument correctly and ensuring that the workers' entitlements are fairly and accurately determined. The Full Bench overturned the previous decision and ruled in favour of the Union.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established