Graham George Young v Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWC 2623

[2022] FWC 2623

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Graham George Young
v

Construction, Forestry, Maritime, Mining and Energy Union

(C2022/6539)

VICE PRESIDENT HATCHER SYDNEY, 28 SEPTEMBER 2022

Appeal against decision [2022] FWCG 54 of the General Manager at Melbourne on 6 September 2022 in matter number R2022/2 – stay application.

1. This is an edited version of the ex tempore decision delivered at the conclusion of the hearing of this matter on 28 September 2022.

1. Mr Graham Young has appealed a decision made by the General Manager of the Commission on 6 September 2022[1] to certify alterations to the rules of the MUA Division of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) pursuant to s 159 of the Fair Work (Registered Organisations) Act 2009. The effect of the rules alterations is to create two new offices in the MUA Division, namely:

·Divisional Assistant National Secretary – Woman; and

·Divisional Assistant National Secretary – Aboriginal and Torres Strait Islander.

1. The decision records that the inaugural office-holders will take office on 1 July 2023.[2] I have also been informed by Mr Young that nominations for election to the positions will open on 25 February 2023.

1. In the proceedings before the General Manager, Mr Young, who describes himself as a retired former member of the CFMMEU, was permitted to file written submissions opposing the approval of the rules alterations. His submissions contended that the rules alterations were not approved by members of the MUA Division in accordance with its divisional rules. The General Manager rejected these submissions and stated that he was satisfied that the alterations were endorsed by the MUA Division’s membership as required by the divisional rules.[3] Mr Young contends in his notice of appeal that the General Manager erred in reaching this conclusion (on four stated grounds) and thus erred in certifying the rules alterations.

1. Mr Young has applied for a stay of the General Manager’s decision, pending the hearing and determination of his appeal, pursuant to s 606(1) of the Fair Work Act 2009 (FW Act). This decision is concerned with Mr Young’s stay application.

1. The principles applying to the determination of stay applications which are usually applied by the Commission are as stated in the decision of the Australian Industrial Relations Commission in Kellow-Falkiner Motors Pty Ltd v Edghill.[4] Paragraph [5] of that decision states:

“[5] In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospects of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.”

1. In assessing for the purpose of a stay application whether an appeal has the requisite prospects of success, the Commission necessarily engages in an assessment of the appeal’s merits. This assessment is preliminary in nature, since the Commission will not have had the benefit of hearing the appellant’s full argument and usually will not have had the opportunity to properly peruse the case materials.[5]

1. I am not in a position at this stage to make any meaningful assessment as to the merits of Mr Young’s appeal, not having received any submissions from him on the topic, except to say that, because he is not a member of the CFMMEU, there will be a real issue as to whether he is a “person aggrieved” within the meaning of s 604(1) of the FW Act such as to have standing to bring this appeal. However, I can firmly conclude that the balance of convenience does not favour the grant of a stay, for two reasons:

(1)Mr Young has not demonstrated that the grant of a stay is necessary to protect any legitimate interest he has in the matter, nor has he demonstrated that he will suffer any prejudice if a stay is not granted. Because he is not currently a member of the CFMMEU, it is not possible to identify any way in which the decision under appeal has any legal or practical effect upon him. Certainly, none has been identified by Mr Young.

(2)As the parties have been informed, this appeal is listed for hearing on 22 November 2022. Although the rules alterations have taken legal effect as a result of the General Manager’s decision, they will have no practical effect until the middle of 2023 when the new positions created by the rules alterations are filled for the first time. The appeal will have been decided well before then. Even if the election process for the offices commences before the appeal decision is issued, which is unlikely, the election for the offices will simply cease if the appeal is successful because the offices will not exist. Therefore, nothing practical would be served by the grant of a stay.

1. Accordingly, for these reasons, Mr Young’s application for a stay of the decision under appeal is refused.

VICE PRESIDENT

Appearances:

G Young, the appellant, in person.
W Carr for the respondent.

Hearing details:

2022.

Sydney by video link using Microsoft Teams:
28 September.

[1] [2022] FWCG 54

[2] Ibid at [6]

[3] Ibid at [69]

[4] [2000] AIRC 785, Print S2639

[5] Supreme Caravans Pty Ltd v Pham [2013] FWC 4766 at [9]

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