Kenneth John Hardisty v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[2014] FWC 8032

[2014] FWC 8032

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Kenneth John Hardisty
v
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2014/7520)

VICE PRESIDENT HATCHER SYDNEY, 13 NOVEMBER 2014

Appeal against decision [[2014] FWCD 6659] of Mr Enright at Melbourne on 24 October 2014 in matter number R2014/82.

[1] This decision reproduces in edited form the decision and reasons which were stated on transcript at the conclusion of the hearing conducted in relation to this matter on 7 November 2014.

[2] The appellant in this matter, Kenneth John Hardisty, has lodged a notice of appeal against a decision of Mr Enright, acting as delegate of the Commission, issued on 24 October 2014. 1 In that decision Mr Enright approved a series of rule changes made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union). In making that decision Mr Enright rejected a submission made by Mr Hardisty that the rules changes had not been made in accordance with the rules of the Union. That determination involved consideration of whether, in approving the rules changes by way of postal ballot, the quorum requirements in the rules had been complied with. The Delegate held that they had been.

[3] Mr Hardisty’s appeal challenges the decision in two respects. Firstly, he challenges Mr Enright’s determination that the rules change had been made in accordance with the rules of the Union and contends that that conclusion was an error because the quorum requirement had not been complied with. Secondly, Mr Hardisty submits that he was denied procedural fairness because the Delegate failed to hear him in relation to a submission he proposed to make that the rules changes were oppressive, unreasonable and unjust and for that reason were inconsistent with s.142 of the Fair Work (Registered Organisations) Act2009.

[4] Mr Hardisty seeks a stay of the decision pending the appeal and also seeks an expedited hearing of the appeal. As to the application for expedition, I propose to grant that application and I can indicate to the parties that the plea for expedition will be accommodated to the extent that the appeal will be heard on 17 December 2014, unless otherwise advised, in Sydney with a video link to Melbourne.

[5] In respect to the stay, the principles applicable to the consideration of a stay application are well-established. 2 The Commission must positively be satisfied as to two matters in order for a stay application to be successful. The first is that the Commission is satisfied that there is an arguable case with some reasonable prospects of success in respect of both the question of permission to appeal and the substantive merits of the appeal. In determining that first consideration, the assessment made by the Commission is necessarily preliminary in nature in that it is based on an analysis of the appeal with the benefit of only limited argument and is of course not intended to foreclose the outcome of the appeal. The second consideration is that the Commission must positively be satisfied that the balance of convenience weighs in favour of the appeal being stayed. Unless both elements are satisfied, the stay is to be refused.

[6] In respect of the first consideration, that is whether there is an arguable case with some reasonable prospects of success, I consider that Mr Hardisty’s first ground of appeal satisfies that criterion. Having perused the detailed reasoning of the Delegate in his decision I am satisfied that the alternative argument advanced by Mr Hardisty at first instance and which he proposes to argue again on appeal was reasonably arguable and was treated as such by Mr Enright. However as to the second consideration, I am not satisfied that Mr Hardisty has positively established that the balance of convenience favours the grant of a stay. Apart from some generalised concerns about the possible effect of the rules alterations upon the autonomy of the Communications Branch of the Union, to which Mr Hardisty belongs, nothing has been put forward to the Commission which would satisfy me that there is any real likelihood of some action being taken between now and the hearing and determination of the appeal which would cause any irrevocable prejudice to him or to his branch or to other members of the Union.

[7] Mr Wright, who appeared for the Union, has also advanced some matters which weigh against the grant of a stay, including difficulties with the practical operation of the finances of the Union, and I have attached some weight to that matter. Also, having granted expedition for the hearing of the appeal, the practical operation of any stay would be confined to a fairly short period of six weeks (at least until the hearing) and there has been nothing put forward to me that anything that might cause irrevocable prejudice is likely to occur in that time. In particular, I note that it has not been suggested by either party that there will be any meeting of the National Council or the National Executive in that period although Mr Wright, quite properly, did not suggest that it was impossible that that might happen, depending upon circumstances as they arise.

[8] For those reasons, I order expedition of the appeal but dismiss the application for a stay. However, if between now and the hearing of the appeal some development not foreshadowed in today’s hearing occurs which might cause prejudice and might have arisen as a result of the rules changes, I will grant Mr Hardisty liberty to renew his application for a stay. If that eventuality occurs, Mr Hardisty may exercise that liberty to apply by contacting my Associate, and if such liberty is exercised I will try to hear any further application as soon as I can.

VICE PRESIDENT

Appearances:

K. Hardisty on his own behalf.

M. Wright for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

Hearing details:

2014.

Sydney:

7 November.

<Price code A, PR557655>

 1   [2014] FWCD 6659

 2   See Edghill v Kellow-Falkiner Motors Pty Ltd [2000] AIRC 785, Print S2639 at [5]

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