Lend Lease Building Pty Ltd t/as Lend Lease Lend Lease Engineering Pty Ltd (formerly Abigroup Contractors Pty Ltd) t/as Lend Lease Lend Lease Building Contractors Pty Ltd (formerly Baulderstone Pty Ltd) t/as Lend Lease

[2014] FWC 5026

[2014] FWC 5026

The attached document replaces the document previously issued with the above code on 25 July 2014.

Typographical error corrected in paragraphs 5 & 13.

Annastasia Kyriakidis

Associate to Justice Ross, President

Dated 25 July 2014

[2014] FWC 5026

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.615A(2) - Application for the President to direct a Full Bench to perform function

Lend Lease Building Pty Ltd t/as Lend Lease
Lend Lease Engineering Pty Ltd (formerly Abigroup Contractors Pty Ltd) t/as Lend Lease
Lend Lease Building Contractors Pty Ltd (formerly Baulderstone Pty Ltd) t/as Lend Lease
(RE2014/761)

JUSTICE ROSS, PRESIDENT MELBOURNE, 25 JULY 2014

Referral to a Full Bench - Fair Work Act 2009 (Cth) - ss 582, 615 and 615A - application refused

[1] Lend Lease Building Pty Ltd, Lend Lease Building Contractors Pty Ltd and Lend Lease Engineering Pty Ltd (collectively, Lend Lease) have made an application pursuant to s.505 of the Fair Work Act 2009 (Cth) (the FW Act) for the Commission to deal with a right of entry dispute. Pursuant to ss 615 and 615A(2) Lend Lease seeks to have the dispute referred to a Full Bench.

[2] The substantive application, as amended on 16 May 2014, seeks various orders in relation to right of entry against the CFMEU, CEPU and named officials. I referred the application to Justice Boulton for the purpose of providing the parties with an opportunity to make submissions as to whether the dispute should be referred to a Full Bench; to seek to conciliate the dispute and, if conciliation was unsuccessful, to make directions for the hearing and determination of the application. His Honour convened conferences of the parties to explore the possibility of resolving the dispute by agreement, but no resolution was reached and directions were issued for the filing of submissions and evidence. Pursuant to those directions all of the material was filed by mid July. Lend Lease and the CFMEU each filed 21 witness statements and the CEPU filed two witness statements.

[3] In making the application that the proceeding be referred to a Full Bench, Lend Lease relies on ss 615 and 615A of the FW Act. Section 615 states:

615 The President may direct a Full Bench to perform function etc.

(1) A function or power of the FWC may be performed or exercised by a Full Bench if the President so directs.

Note: The President gives directions under section 582.

(2) The President may direct that the function or power be exercised by a Full Bench generally, or in relation to a particular matter or class of matters.

(3) To avoid doubt, a reference in this section to a Full Bench includes a reference to more than one Full Bench.

Note: For the constitution of a Full Bench, see section 618.

[4] Section 615A of the FW Act states:

615A When the President must direct a Full Bench to perform function etc.

(1) The President must direct a Full Bench to perform a function or exercise a power in relation to a matter if:

(a) an application is made under subsection (2); and

(b) the President is satisfied that it is in the public interest to do so.

Note: The President gives directions under section 582.

(2) The following persons may apply to the FWC to have a Full Bench perform a function or exercise a power in relation to a matter:

(a) a person who has made, or will make, submissions for consideration in the matter;

(b) the Minister.

[5] Section 615 confers a broad discretion upon the President to direct that a function or power be exercised by a Full Bench. In relation to the s.615A application the issue for determination is whether I am satisfied that it is in the public interest to refer the dispute to a Full Bench. The expression ‘in the public interest’, when used in a statute, imports a discretionary value judgment to be made by reference to undefined factual matters and confined only by the subject matter, scope and purpose of the relevant statute. 1

[6] Sections 577 and 578 of the FW Act are relevant to the exercise of the President’s powers under ss 582, 615 and 615A.

[7] Section 577 provides as follows:

“The FWC must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations.

Note: The President also is responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581).”

[8] Section 578 directs the Commission to take into account, among other things, the objects of the FW Act and ‘equity, good conscience and the merits of the matter’. Section 581 is also apposite. It provides, relevantly, that the President is responsible for ensuring that the Commission performs its functions and exercises its powers in an efficient manner.

[9] In proceedings before Justice Boulton on 7 April 2014 the parties made submissions about the referral application. I have had regard to those submissions and the material filed in support of the substantive application. Lend Lease submits that the scale of the dispute and the significant disruption being caused to Lend Lease sites across the country support the dispute being referred to a Full Bench. In the proceedings before his Honour on 7 April 2014 counsel for Lend Lease also advanced the following submission in support of the referral of the dispute pursuant to s.615:

“Given the fact that the application also deals with some officials who have been previously subject to some strong sanction, and may well be subject to sanction in respect of current proceedings, we respectfully submit that the conduct of the nature identified in the present application, if made out, should be dealt with at the most authoritative level of the commission and be a full bench. We respectfully submit that if this conduct is made out it requires the sanction at the highest level of the tribunal to indicate that the conduct is not in any way to be condoned or accepted and to prevent similar misconduct occurring in the future. In our respectful submission, there’s a public interest in having it dealt with at that senior level.” 2

[10] In relation to s.615A counsel for Lend Lease advanced the following submission:

“... we would, in our respectful submission, say that to the extent that there is a public interest in the present matter, which we respectfully say there is, then it would come within section 615A(1)(a) and impose a duty, an obligation on the present to refer the matter. The widespread national nature of the present conduct, the nature of the projects, a number of them being of significance to the construction industry and economy, and the nature of the conduct which is described, would all inform the public interest, in my respectful submission.” 3

[11] The CFMEU and CEPU both opposed the referral of the dispute to a Full Bench.

[12] I am not persuaded that it is in the public interest to refer the application to a Full Bench. There is no suggestion of any inconsistency in first instance decisions regarding the interpretation of the relevant statutory provisions and I am not persuaded that the submissions advanced on behalf of Lend Lease sufficiently enliven the public interest.

[13] The efficient allocation of the Commission’s resources is also a relevant consideration. It appears that the conduct which is the subject of the dispute occurred in April 2014 and the hearing will require the resolution of a significant number of factual differences between the parties. Some 44 witness statements have been filed by the respective parties. The likely duration and evidentiary nature of the proceedings are such that it is more suited to determination by a single Member, rather than a Full Bench. As I am not satisfied that it is in the public interest to direct a Full Bench to hear and determine the dispute, the s.615A application must be dismissed.

[14] Nor am I persuaded that this is an appropriate case to be referred to a Full Bench pursuant to my general discretion under s.615.

[15] The application to refer the dispute to a Full Bench is dismissed.

PRESIDENT

 1   O’Sullivan v Farrer (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ

 2   Transcript 7 April 2014 at PN14

 3   Ibid at PN19

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