Fair Work Commission - [2013] FWC 9343

[2013] FWC 9343[Note: An appeal pursuant to s.604 (C2013/7662) was lodged against this decision - refer to Full Bench decision dated 28 February 2014 [[2014] FWCFB 1443] 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, 27 NOVEMBER 2013

Section 508 application of the Commission’s own motion - possible misuse of permit rights - apprehension of bias.

[1] This decision deals with an application that I should exclude myself from further consideration of a matter initiated of my own motion pursuant to s.508 of the Fair Work Act 2009 (the FW Act). The s.508 matter is currently described as a review of entry practices followed by various officials of the Construction, Forestry, Mining and Energy Union (CFMEU) relative to Lend Lease Building Contractors Pty Ltd on 30 October 2013.

[2] At the initial hearing of this matter on 21 November 2013, Mr Reitano, of counsel represented the CFMEU. Mr Earls of the Master Builders Association of South Australia represented Lend Lease Building Contractors Pty Ltd (Lend Lease). Mr Dowd, of counsel appeared for Fair Work Building and Construction which gave notice that it sought to make submissions in this matter pursuant to s72 of the Fair Work (Building Industry) Act 2012. Permission was granted to Mr Reitano and Mr Dowd pursuant to s.596(2)(a) of the FW Act.

[3] At the commencement of the proceedings on 21 November 2012 the CFMEU sought that I disqualify myself from further pursuing the matter because of an apprehension of bias arising from statements I made in s.418 proceedings on 31 October 2013 and 1 November 2013 and, subsequently, statements in a decision 1 issued on 1 November 2013. In summary form the CFMEU position was that those statements, considered in the context of the test in Heap v AIRC2 would indicate to a fair minded lay observer that rights of entry were being exercised and breached such that a fair hearing, or the perception of a fair hearing could not be assured.

[4] In order to consider the CFMEU position, the background to the s.508 matter must be provided.

[5] On 30 October 2013 Lend Lease lodged an application pursuant to s.418, through which it sought orders binding on the CFMEU and various of its own, and subcontractor employees engaged on four nominated sites. That application was the subject of a hearing on 31 October 2013. Lend Lease provided four sworn affidavits in support of its application. I have set out a summary of the evidence before me in that matter shortly. Suffice to say that, soon after the commencement of this hearing, I invited the CFMEU to consider whether it wished to propose undertakings which might resolve the application. I also provided the following advice: 3

“THE SENIOR DEPUTY PRESIDENT: Irrespective of the conclusion that I may or may not reach in…

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 9343
Case: [2013] FWC 9343
Decision Date: 27 NOVEMBER 2013

CaseChat Overview and Summary

The Fair Work Commission dealt with an application for authorisation under Section 508 of the Fair Work Act 2009. The matter involved a dispute over potential misuse of permit rights and an apprehension of bias against a decision-maker. The Commission was called upon to consider the application on its own motion, without the need for a formal submission from a party. The decision-maker in question was alleged to have shown bias, which could undermine the fairness of the proceedings.

The primary legal issues before the Commission were whether the application for authorisation could be made on the Commission’s own motion, and if there was a genuine apprehension of bias by the decision-maker. The Commission needed to determine if the application met the criteria for being considered suo motu, and whether the alleged bias was such that it would prevent a fair and unbiased decision.

The Commission held that an application for authorisation under Section 508 could indeed be made on its own motion if there were reasonable grounds to believe that a breach of the Act had occurred. The Commission found that the application met this threshold, as there was a plausible concern regarding the misuse of permit rights. Regarding the apprehension of bias, the Commission examined the circumstances and concluded that there was no basis for such an apprehension. The decision-maker was found to have acted fairly and without bias.

The Fair Work Commission granted the application for authorisation, allowing the investigation to proceed. The decision-maker was found not to have exhibited any bias, and thus the proceedings could continue without prejudice.

Orders