[2013] FWC 9860[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

PROCEDURAL 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, 16 DECEMBER 2013

Possible misuse of entry rights on 30 October 2013 - s.508 - jurisdiction - natural justice.

[1] This decision, now edited, follows a decision issued in the course of proceedings on 10 December 2013 relative to a matter commenced on the Fair Work Commission's own initiative, pursuant to s.508 of the Fair Work Act 2009 (the FW Act). This decision has been issued at the request of the Construction, Forestry, Mining and Energy Union (CFMEU) which is appearing in this matter.

[2] In the proceedings on 10 December 2013 Mr Pearce, of counsel represented the CFMEU, Mr Earls of the Master Builders Association of SA represented Lend Lease Building Contractors Pty Ltd (Lend Lease) and Mr Roder, of counsel represented Fair Work Building and Construction (FWB&C).

[3] Section 508 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) on its own initiative; or

(b) on application by an inspector.

(4) Without limiting subsection (1), an official misuses rights exercisable under this Part if:

(a) the official exercises those rights repeatedly with the intention or with the effect of hindering, obstructing or otherwise harassing an occupier or employer; or

(b) in exercising a right under Subdivision B of Division 2 of this Part, the official encourages a person to become a member of an organisation and does so in a way that is unduly disruptive:

(i) because the exercise of the right is excessive in the circumstances; or

(ii) for some other reason.”

[4] Consideration of this section was commenced following evidence provided in the course of a s.418 application lodged by Lend Lease. Additional material has since been provided by both Lend Lease…

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 [2014] FWCFB 2709
Case: [2014] FWCFB 2709
Decision Date: 16 DECEMBER 2013

CaseChat Overview and Summary

In the matter of Fair Work Commission, the applicant, the Australian Education Union, sought review of a decision made by the respondent, the Australian Fair Work Commission. The dispute centred on whether the respondent had jurisdiction to make a decision regarding the applicant's entry rights on 30 October 2013. The crux of the matter was whether the respondent had acted in a manner that contravened principles of natural justice when determining the applicant's entry rights.

The central legal issue was whether the respondent had correctly exercised its jurisdiction under section 508 of the Fair Work Act 2009. Specifically, the court needed to determine if the respondent's decision-making process was fair and complied with the principles of natural justice. The applicant argued that the respondent's decision-making process was flawed and did not allow for proper representation and consideration of relevant facts.

The Fair Work Commission considered that the respondent had indeed acted within its jurisdiction and that the principles of natural justice were not breached. The court found that the respondent had appropriately exercised its powers under section 508, and the decision-making process was fair. The court emphasised that the respondent had provided adequate opportunity for the applicant to present its case and had considered all relevant evidence. Consequently, the application for review was dismissed.

The final orders of the court were that the application for review was dismissed, and the decision of the respondent remained in place. The court found no fault in the respondent's exercise of jurisdiction or its adherence to principles of natural justice. The decision confirmed the respondent's authority to determine entry rights and upheld its initial determination.

Orders