Flight Attendants' Association of Australia International Division v Diack

[2016] FWCFB 431

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions
Flight Attendants' Association of Australia
v
Miranda Diack
(C2016/2204)
VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT HAMBERGER
COMMISSIONER SAUNDERS	SYDNEY, 21 JANUARY 2016

Appeal against decision [2016] FWCD 116 of Mr Enright at Melbourne on 8 January 2016 in

matter number R2015/221.

[1] This decision reproduces in edited form the decision which was stated on transcript at

the conclusion of the hearing conducted in relation to this matter on 21 January 2016. The

decision concerned an appeal by the Flight Attendants' Association of Australia (FAAA)

1 2

against a decision

and direction

of Mr Enright, acting as delegate for the General Manager

(Delegate), issued under s.236 of the Fair Work (Registered Organisations) Act 2009 on 8

January 2016.

[2] The Full Bench has decided that there was no error in the exercise of discretion by the

Delegate except that he denied the FAAA procedural fairness in accepting an undertaking

from Ms Diack without first affording the FAAA an opportunity to be heard in relation to the

undertaking.

[3] The denial of procedural fairness constitutes an appealable error. We therefore grant

permission to appeal, uphold the appeal and quash the decision and direction of the Delegate.

[4] We propose to redetermine the matter based on the submissions of the parties and the

material before the Delegate.

[5] We intend to make a direction in the same terms as the direction made by the Delegate

on 8 January 2016, if by noon on Friday, 22 January 2016 Ms Diack sends the Fair Work

Commission a written and signed undertaking in the following terms:

(a) I will not use the information in the copy of the register of members for a
purpose other than the purposes stated in my submissions to the Fair Work
Commission of 5 and 26 October 2015, those being electioneering for the 2016

[2016] FWCFB 431

elections; and communicating and sharing information with members of the
Association including information about proposed services and support
programmes;

(b) I will return all copies of the register of members, including any electronic
copies, to the Fair Work Commission by 4pm on 29 February 2016; and

(c) I will not show or provide a copy of the register of members to any person who
is not a member of the FAAA and will only show or provide a copy of the
register of members to a member of the FAAA if that member first provides a
signed and written undertaking to the Fair Work Commission in the same terms
as this undertaking (save that the reference to “my submissions” in paragraph
(a) of this undertaking will be a reference to the submissions made by Ms
Diack to the Commission on 5 and 26 October 2015).

[6] If the undertaking is provided the direction will be formally issued prior to 4pm

tomorrow 22 January 2016. If the undertaking is not provided we will not make the direction.

[7] If any party requests them, reasons for this decision will be provided in due course.

VICE PRESIDENT

Appearances:

J. Nolan of counsel for the Flight Attendants’ Association of Australia.

M. Diack on her own behalf.

Hearing details:

2016.

Sydney:

21 January.

Printed by authority of the Commonwealth Government Printer

[2016] FWCD 116

PR575962

CaseChat Overview and Summary

The Flight Attendants' Association of Australia International Division has appealed a decision made by Mr Enright under section 236 of the Fair Work (Registered Organisations) Act 2009. The appeal was heard by the Full Bench of the Fair Work Commission in Sydney on 21 January 2016. The matter concerns the acceptance by Mr Enright of an undertaking from Miranda Diack, which the Flight Attendants' Association of Australia argues was not given procedural fairness. The legal issues before the court were whether there was an error in the exercise of discretion by the Delegate and whether the Delegate denied the association procedural fairness.

The Full Bench found that there was no error in the exercise of discretion by the Delegate except for the denial of procedural fairness in accepting an undertaking from Ms Diack without first affording the association an opportunity to be heard in relation to the undertaking. The denial of procedural fairness constituted an appealable error, leading the Full Bench to grant permission to appeal, uphold the appeal and quash the decision and direction of the Delegate. The Full Bench proposed to redetermine the matter based on the submissions of the parties and the material before the Delegate. If Ms Diack provides a written and signed undertaking by noon on Friday, 22 January 2016, the Full Bench intends to make a direction in the same terms as the direction made by the Delegate on 8 January 2016. If the undertaking is not provided, the Full Bench will not make the direction.

The Full Bench's decision highlights the importance of procedural fairness in administrative decision-making. The court found that the Delegate's failure to afford the association an opportunity to be heard in relation to the undertaking from Ms Diack constituted a denial of procedural fairness. This denial of procedural fairness led to the quashing of the Delegate's decision and direction. The Full Bench's decision also emphasises the importance of following established procedures and ensuring that all parties have an opportunity to be heard before a decision is made.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established