Nick Belan v National Union of Workers-New South Wales Branch

[2016] FWC 8538

[2016] FWC 8538 [Note: An appeal pursuant to s.604 (C2017/6091) was lodged against this decision - refer to Full Bench decision dated 5 January 2018 [[2018] FWCFB 94] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nick Belan
v
National Union of Workers-New South Wales Branch
(U2016/7463)

DEPUTY PRESIDENT DEAN SYDNEY, 29 NOVEMBER 2016

Application for relief from unfair dismissal – whether Fair Work Commission is a court for purposes of section 6DD of the Royal Commissions Act 1902 - whether evidence given before Royal Commission should be admitted in Fair Work Commission proceedings.

[1] The following decision, now edited, was delivered ex tempore at the conclusion of the proceedings on 18 November 2016:

[2] The Applicant, Mr Nick Belan, gave evidence before the Royal Commission into Trade Union Governance and Corruption (the Royal Commission) in November 2015. The Respondent, the National Union of Workers - New South Wales Branch, seeks to rely on this evidence in its defence of the unfair dismissal proceedings which the Applicant has commenced. The Applicant seeks to exclude the use of this evidence before the Royal Commission from being admitted in his unfair dismissal proceedings. Specifically, the evidence in question includes the transcript of his evidence to the Royal Commission and any documents that derive from the transcript of his evidence to the Royal Commission, including, but not limited to, the Royal Commission Report into the NUW, the show cause notice and the notice of his dismissal.

[3] In the submissions filed yesterday, the Applicant argues that this evidence should be excluded for two reasons. The first reason is that the Fair Work Commission is a court for the purposes of section 6DD of the Royal Commissions Act 1902 (the Royal Commissions Act) and/or, second, that as a matter of discretion, the documents should not be admitted. I have considered the submissions filed yesterday by the parties and the oral submissions that have been made today. I have also had regard to the numerous authorities that have been referred to by both parties.

[4] In relation to the first argument, that being whether the Fair Work Commission is a court for the purposes of s6DD of the Royal Commissions Act, I find that this Commission is not a court for the following reasons. The first sentence of s6DD(1) is in the following terms:

“The following are not admissible in evidence against a natural person in any civil or criminal proceedings in any court of the Commonwealth, of a State or of a Territory.”

[emphasis added]

[5] The Royal Commissions Act does not define a court. There is acceptance by the Applicant that the Fair Work Commission is not a Chapter 3 court and the Boilermakers case 1 which has been discussed today makes it clear that the Fair Work Commission does not, and cannot, exercise judicial power. The Fair Work Commission exercises arbitral power only.

[6] To the extent that the question of whether the Fair Work Commission is a court for the purposes of the Corporations Act has been considered, I prefer the decision of the Full Bench of the Fair Work Commission in Smith v Trollope Silverwood & Beck Pty Ltd 2. I note in particular at paragraph 142, which is referred to in the Respondent’s submissions, the court there said:

“If the legislature had intended to make proceedings in the Commission subject to the leave requirement, it would have done so by express provision. An example of this is a provision that may be found in section 2 of the Suitors’ Fund Act which defines ‘court’ in these words, ‘Includes such tribunals or other bodies as are prescribed.’”

[7] There is no reason, in my view, that the use of the word ‘court’ in s6DD should be given anything other than its ordinary meaning. I agree with the Respondent’s submissions that if it were the intention of the legislature to extend the protections of s6DD to proceedings before tribunals such as this Commission, it would have done so explicitly.

[8] The Applicant has referred to some State bodies such as the New South Wales Administrative Decisions Tribunal and argues that s6DD was clearly intended to cover proceedings in those tribunals. States, however, are not bound by the Boilermakers’ principle. Consequently, there are State bodies or tribunals that may be vested with judicial functions. This again is not the case here and so these decisions, in my view, can be distinguished.

[9] If follows then, and I so find, that s6DD will not operate to exclude the admission of the evidence in question.

[10] In relation to the second argument, that being that as a matter of discretion, the documents should not be admitted, I find that there is no compelling basis upon which I should exclude the evidence in question. Clearly, the Applicant considers that the evidence is prejudicial. So much is clear by virtue of this application to exclude it, and as has been set out in correspondence from the Applicant’s solicitors in which it was submitted that it would be unfairly prejudicial to admit the evidence. In my view, evidence is not unfairly prejudicial merely because it tends to damage the case of one party or because it supports the case of their opponents.

[11] There have been a number of issues that have been raised by the Applicant in its submissions as to the potential difficulties that the Respondent may face in this matter. Questions have been raised, for example, about specifically what the evidence on page 146 of the Royal Commission transcript actually means. I would expect in the substantive hearing of this matter that the parties will address those issues and will no doubt deal with both the use and the weight that should be put on the Royal Commission evidence.

DEPUTY PRESIDENT

Appearances:

P Lowson of counsel with A Mataere for Nick Belan.

J Nolan of counsel with M Burns for National Union of Workers-New South Wales Branch.

Hearing details:

2016.

Sydney:

November 17.

 1 (1957) 95 CLR 529.

 2   (2004) 54 AILR.

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