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E. Allen and Ors v Fluor Construction Services Pty Ltd

E. Allen and Ors v Fluor Construction Services Pty Ltd

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Case Copied 29 January 2014 46 min read

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[2014] FWCFB 174

The attached document replaces the document previously issued with the above code on 29 January 2014.

The citation in footnote 17 is amended to Warrell v Fair Work Australia [2012] FCA 267 at [8] per Perram J

Abby Lang

Associate to Deputy President Gostencnik

Dated 6 February 2014

[2014] FWCFB 174

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

E. Allen and Ors
v
Fluor Construction Services Pty Ltd
(C2013/1523)

PRESIDENT JUSTICE ROSS
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER SIMPSON

MELBOURNE, 29 JANUARY 2014

Appeal against decision in Transcript and Order [PR541318] of Senior Deputy President Richards at Brisbane on 4 September 2013 in matter number C2013/5890 - s.418 Fair Work Act 2009 (Cth) - adjournment refused - denial of procedural fairness - observations about the form of the order - seeking an order which is contrary to authority without alerting the presiding Member to the contrary authority is inconsistent with a legal practitioner’s duty to the Commission - Legal Profession (Solicitors) Rule 2007 (Qld) - permission to appeal granted - appeal upheld, order quashed and application dismissed.

Introduction

[1] In the afternoon of 4 September 2013 some 70 employees of Fluor Construction Services Pty Ltd (Respondent) stopped work. Following a hearing conducted that evening Senior Deputy President Richards made an order 1 under s.418 the Fair Work Act 2009 (Cth) (Act) directed at stopping unprotected industrial action and binding certain employees of the Respondent. Mr Edwin Allen and 22 other employees2 (Appellants) who are bound by the order lodged a notice of appeal pursuant to s.604 of the Act on 24 September 2013 against the decision3 and order of the Senior Deputy President. This decision deals with the appeal.

Background

[2] It is necessary that we set out, in some detail, the background to this appeal.

[3] On 4 September 2013 at 4:40pm the Respondent applied for orders under s.418 of the Act to stop unprotected industrial action. The orders were directed to the Construction, Forestry, Mining and Energy Union (CFMEU), the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and certain employees of the Respondent, then employed to work on the GLNG Upstream Project at Fairview under the Fluor Construction Services Pty Ltd GLNG Upstream Project Greenfield Agreement 2011 (the Fluor employees). In support of its application the Respondent alleged that at around 2:00pm on that day about 70 Fluor employees engaged in mechanical installation work at the Hub Compression Station at the Fairview 04 Construction area (part of the GLNG Upstream Project), withdrew their labour, had not returned to work and there was no indication about when the employees intended to resume work.

[4] An application for substituted service and a request for an urgent listing were submitted with the application. The application for substituted service was granted and the applicant was required to effect service by sending a copy of the application by email marked to the attention of the National Secretaries of the AMWU and…

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 174
Decision Date: 29 JANUARY 2014

CaseChat Overview and Summary

The appellants, E. Allen and others, sought to appeal against a decision made by Senior Deputy President Richards in the Fair Work Commission. The decision, recorded in Transcript and Order [PR541318], was handed down on 4 September 2013 in matter number C2013/5890. The original matter was brought under section 418 of the Fair Work Act 2009 (Cth), and the appellants were challenging the refusal of an adjournment and alleged denial of procedural fairness. The appeal was brought before the court to assess the correctness of the decision and to determine whether the appellants' rights were properly considered.

The central legal issues that the court needed to address were whether the refusal of an adjournment and the alleged denial of procedural fairness constituted errors that warranted the quashing of the original order. Additionally, the court had to consider whether the conduct of the appellants' legal representative during the proceedings breached professional standards, specifically in relation to the Legal Profession (Solicitors) Rule 2007 (Qld). The court was required to scrutinise the adherence to procedural fairness and the proper application of legal authority in the context of the proceedings.

In examining the decision, the court found that the refusal of the adjournment did not constitute a denial of procedural fairness, as the circumstances did not support a legitimate claim for an adjournment. However, the court did identify a significant issue with the conduct of the appellants' legal representative. The representative had sought an order that was contrary to established legal authority without informing the presiding Member of this authority. The court held that such conduct was inconsistent with the duty of a legal practitioner to the Commission, as outlined in the Legal Profession (Solicitors) Rule 2007 (Qld). Consequently, the court concluded that the appeal should be upheld, the original order quashed, and the application dismissed.

The final orders of the court were that permission to appeal was granted, the appeal was upheld, the order made by Senior Deputy President Richards was quashed, and the application brought by the appellants was dismissed. The court's decision emphasised the importance of legal practitioners adhering to professional standards and ensuring that all relevant legal authorities are appropriately considered during proceedings.

Orders