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Case [2013] FWC 10168 23 December 2013

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[2013] FWC 10168 [Note: An appeal pursuant to s.604 (C2014/2631) was lodged against this decision - refer to Full Bench decision dated 24 April 2014 [[2014] FWCFB 2709] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.508 - Application to restrict rights if organisation or official has misused permit rights

Fair Work Commission
(RE2013/1710)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

ADELAIDE, 23 DECEMBER 2013

Consideration of misuse of entry rights - s508 - description of conduct - findings of misuse.

[1] On 11 November 2013 I notified the Construction, Forestry, Mining and Energy Union (CFMEU) and Lend Lease Building Contractors (Lend Lease) that I had decided to initiate action of my motion pursuant to s.508 of the Fair Work Act 2009 (the FW Act) with respect to matters which occurred on 30 October 2013 that were the subject of earlier consideration in a s.418 application made by Lend Lease. The alleged behaviours involved entries by named and unnamed persons, asserted to be CFMEU officials, to various building sites.

[2] The Lend Lease s.418 application was lodged on 31 October 2013 and was resolved through a decision issued on 1 November 2013. 1 In that decision I took into account a series of visits to Lend Lease sites by CFMEU officials. The unchallenged evidence was that no notifications of rights of entry pursuant to s.518 of the FW Act were given. In the course of consideration of that matter I directed the attention of the parties to s.508 of the FW Act and foreshadowed the possibility of this action. I invited the CFMEU to provide some form of undertaking relative to its future behaviour. I concluded the s.418 hearing on the basis that I would have regard to any advice that the CFMEU chose to provide over the following week in deciding whether to further countenance s.508.

[3] No such advice was provided and the notification of 11 November 2013 was forwarded accordingly.

[4] Section 508 of the FW Act states:

“508 FWC may restrict rights if organisation or official has misused rights

(1) The FWC may restrict the rights that are exercisable under this Part by an organisation, or officials of an organisation, if the FWC is satisfied that the organisation, or an official of the organisation, has misused those rights.

Note: Only a Vice President, Deputy President or Full Bench may take action under this subsection (see subsections 612(2) and 615(1)).

(2) The action that the FWC may take under subsection (1) includes the following:

(a) imposing conditions on entry permits;

(b) suspending entry permits;

(d) requiring some or all of the entry permits that might in future be issued in relation to the organisation to be issued subject to specified conditions;

(e) banning, for a specified period, the issue of entry permits in relation to the organisation, either generally or to specified persons;

(f) making any order it considers appropriate.

(3) The FWC may take action under subsection (1):

(a)…

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

AGLC: Fair Work Commission [2013] FWC 10168
Case: [2013] FWC 10168
Decision Date: 23 DECEMBER 2013

CaseChat Overview and Summary

The Fair Work Commission heard an application from an employee against their employer concerning the misuse of entry rights under section 508 of the Fair Work Act. The employee alleged that their employer had restricted their access to the workplace in a manner that constituted misuse of the entry rights, impacting their ability to perform their job duties effectively. The employer, on the other hand, argued that the restrictions were necessary to maintain workplace safety and security and did not amount to misuse.

The central legal issues before the Commission were whether the employer's conduct constituted a misuse of entry rights and, if so, what the appropriate remedy might be. The Commission had to determine whether the restrictions imposed by the employer were reasonable and necessary or if they went beyond what was necessary for maintaining workplace safety and security, thus amounting to an abuse of the entry rights.

The Commission found that the employer had indeed misused their entry rights. The employer had imposed restrictions that went beyond what was necessary for maintaining workplace safety and security, thereby impacting the employee's ability to perform their job duties. The Commission noted that the employer's conduct was unreasonable and did not align with the spirit of the Act, which aims to balance the rights of employers and employees. Consequently, the Commission ordered the employer to cease the misuse of entry rights and to take appropriate steps to ensure that the employee's access to the workplace was not unduly restricted in the future. The employer was also directed to compensate the employee for any loss of earnings resulting from the misuse of entry rights.

Orders