Fair Work Commission

[2014] FWCFB 2709

[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;

(c) revoking 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 and FWB&C.

[5] The decision deals with two discrete objections raised by the CFMEU to the further conduct of these proceedings. In reaching a conclusion on the CFMEU's submissions in relation to these objections I have had regard to each of the authorities to which I have been referred.

[6] The CFMEU has submitted that no further action should be taken in this matter pursuant to s.508 on the basis that, firstly, there is no jurisdiction to undertake what it describes as a preliminary investigation into whether to initiate action under that section, and that there is no specific proposal to found such an action.

[7] I am not persuaded that there are any such jurisdictional impediments to the matter proceeding or that the proceedings represent a preliminary investigation. Section 508(1) establishes the jurisdictional facts necessary for the FWC to have the discretion to restrict the rights able to be exercised under Part 3-4 of the FW Act by an organisation, or by officials of that organisation. Section 50 (2) simply exemplifies and details the actions which the FWC may take if such a jurisdictional fact or facts are made out. Section 508(3) provides that this section may be activated or commenced through either an application by an inspector or on the Commission’s own initiative. Section 508(4) simply provides examples of misuse in a non-definitive sense.

[8] My concerns about behaviour which was the subject of unchallenged evidence in the s.418 application made by Lend Lease on 31 October 2013 were specified in the proceedings on 31 October and 1 November 2013 and, in my decision 1 of 1 November 2013. I further detailed those concerns in directions of 11 November 2013 and in a decision2 of 27 November 2013, where I dealt with an argument associated with apprehended bias. In that decision and directions issued on the same day, I provided an explanation of my expanded concerns based on the additional material subsequently provided to me.

[9] I am not satisfied that s.508 limits the FWC‘s capacity to initiate actions to circumstances which are detailed in a particular application. As I indicated in my decision of 27 November 2013, the FWC very rarely invokes the capacity to act of its own motion under s.508. I have adopted the position that such an action of this nature should only be taken in circumstances where the material before a particular Member of the FWC is such that it gives rise to a substantial concern about the possible misuse of entry rights.

[10] The enquiry that must then ensue must go to establishing whether, on the evidence then presented to the Commission, one or more concerns are made out such that misuse of entry rights is established. Hence, I consider that it was incumbent on the FWC to articulate the concerns that gave rise to the commencement of the s.508 action so that the parties could be aware of the issues to be addressed. The advice provided to the parties must strike a balance between the expression of the concerns giving rise to the s.508 proceedings and the invitation to fairly consider evidence about those concerns.

[11] The absence of regulations or rules relating to the operation of this section is not relevant to the issue of jurisdiction. In procedural terms, it is simply incumbent on the FWC to formulate an approach which balances the dictates of speed and efficiency with those of fairness and equity. To read s.508 as requiring that the jurisdiction to invite submissions and evidence about misuse of entry rights is limited to situations where the FWC has formed a concluded view about misuse, would itself represent a denial of natural justice.

[12] Section 508 and, indeed, other sections of the FW Act which empower the FWC to act on its own initiative may be applied so that they have about them, an element of inquiry. It is only if this inquiry, on the evidence put to the FWC, establishes misuse of the nature addressed in this section, that the Commission is then empowered to take action. To deprive the FWC of that capacity, or the capacity to embark on such an inquiry, or to require it to articulate specific assertions would be to render this section effectively inoperative. It is simply the case that the evidence which may, or may not be put to me, will establish whether the jurisdiction to act under s.508 exists.

[13] As a consequence, I concluded that there was no jurisdictional barrier to the matter proceeding.

[14] Secondly, the CFMEU argued that the proceedings represented a denial of natural justice. Again, I do not accept this position. The basis for the proceedings has been clearly articulated. In part, this basis was relied upon in the CFMEU's earlier argument that I should exclude myself from further consideration of the matter because of an apprehended bias. The directions issued to date have put the parties on notice about the proceedings in matters of concern to me. In this respect I am satisfied that natural justice requirements have been met.

[15] The material before me to date identifies certain unnamed individuals who are asserted to be officials or employees, or representatives of the CFMEU. In some cases, this is a matter of public record and I may take note of it accordingly.

[16] The CFMEU advice is that it does not represent those persons and that Mr Pearce only represents the CFMEU. Some of the persons referenced in the material before me are not identified by name and the material indicates that in some cases they have not been prepared to identify themselves. This may, or may not be established on the evidence that is put to me.

[17] To the extent that the evidence enables conclusions about individuals in terms of the names of their activities is a matter for later consideration in the context of the obligation on the FWC to ensure procedural fairness. Consequently, to ensure a procedurally fair approach to all of the parties, including potentially affected individuals, I confirmed my intention to reach conclusions about the extent to which the circumstances in s.508(1) are established, before inviting the parties to consider what, if any, form of order should then be made. This approach may extend to proposed orders about which submissions may later be made. It may also extend to specific invitations to individuals to appear and make submissions about the appropriate form of orders being countenanced.

[18] For these reasons, I determined that the matter should proceed on 10 December 2013. I note that I subsequently refused a request made by the CFMEU for the matter to be further adjourned so as to enable consideration of a potential appeal relative to this procedural decision.

Appearances:

M Pearce counsel for the Construction, Forestry, Mining and Energy Union.

T Earls for Lend Lease Building Contractors Pty Ltd.

M Roder counsel for Fair Work Building and Construction.

Hearing details:

2013.

Adelaide:

December 10.

 1   [2013] FWC 8659

 2   [2013] FWC 9343

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