The Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union

[2016] FWC 8710

[2016] FWC 8710

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.508 - Application to restrict rights if organisation or official has misused permit rights

The Director of the Fair Work Building Industry Inspectorate
v
Construction, Forestry, Mining and Energy Union and others
(RE2014/1389)

VICE PRESIDENT CATANZARITI SYDNEY, 6 DECEMBER 2016

Application to dismiss the matter.

[1] On 11 November 2016, the CFMEU lodged an application pursuant to section 587 of the Fair Work Act 2009 (Cth) (the Act) for an order dismissing the substantive application made by the Office of the Fair Work Building and Construction (the Director). The CFMEU’s application to dismiss the substantive matter was accompanied by written submissions as to why the substantive matter ought to be dismissed.

[2] On 14 November 2016, the parties presented oral submissions before me relating to the application to dismiss the matter. I informed the parties that the decision is reserved and that I would publish a decision as to whether the matter is dismissed. 1 The reasons for my decision are provided below.

The CFMEU’s Submissions

[3] The CFMEU submitted that the proceedings are now, having regard to the manner in which the Director has conducted them, vexatious and an abuse of process because they have been conducted in a manner that is unfairly burdensome and productive of serious and unjustified harassment to all of the Respondents having regard in particular to the following circumstances:

• The Director intervened in earlier proceedings commenced by Lend Lease which involved a consideration of the same facts and circumstances that arise in this matter and failed to say anything by way of opposition or otherwise to the orders that the Fair Work Commission was proposing and did in fact make in settlement of the dispute between Lend Lease and the Respondents. Those orders imposed restrictions and qualifications on the exercise of the right of entry by the individual Respondents and the CFMEU which the Commission in all the circumstances considered appropriate and the Director did not oppose or demur from the making of those orders;



• The Director at all relevant times until after Vice President Watson invited the parties to make written submissions and led the Respondents to believe that the facts and circumstances upon which he relied for the making of orders was limited to those matters set out in the Director’s original application (which were in truth the same matters that the Lend Lease orders were based upon) and its various iterations and were the subject of the findings as to facts by Vice President Watson in his decision;



• The Director has now amended his Application on three separate occasions so as to substantially change his case and, having regard to his recent conduct, is likely to seek to amend his Application yet again;

• The Director has foreshadowed that he will rely upon extensive material that is completely irrelevant in prosecuting his application before the Commission;



• The Director is utilising his increasing array of extraneous material as bad character evidence of sorts to justify the orders he seeks, which have little, if any, relation to the misuses found by Vice President Watson; and



• The Director informed me at a directions hearing on 18 August 2016 that the only additional material he would attempt to rely upon in the hearing of the matter set down for 14 and 15 November 2016 was that contained in his Second Further Amended Application that was provided to me that day and then:



• In his written submissions filed and served on 5 October 2015, he referred to and now seeks to rely on other material not earlier referred to and not contained within the Second Further Amended Application;



• By email dated 26 October 2016, he told the Respondents for the first time that the Director would rely upon a judgment of Justice Dowsett in an interlocutory judgment 2 which was not earlier referred to and not contained within the Second Further Amended Application;



• By an email dated 27 October 2016, he told the Respondents for the first time what the particular conduct in the aforesaid judgement was that would be relied upon by the Director; and



• By email dated 4 November 2016, he told the Respondents for the first time that he intended to rely upon extensive further and additional material which was not earlier referred to and not contained in the Second Further Amended Application.

[4] The CFMEU contended that the proceedings are an abuse of process as they are doomed to fail because of events that have occurred since their commencement and because of the circumstances known to the Director, specifically:

• The orders made in the section 505 proceedings involving Lend Lease which, the CFMEU asserted, dealt with and rectified the issues arising from the misuses found by Vice President Watson;



• By reason of the section 505 orders, there is no utility in the Commission making the far-reaching and draconian orders sought by the Director, or any orders at all in relation to the discrete misuses found;



• In the circumstances, these proceedings are untenable and an exercise of futility; and



• The Director’s constant serving of extraneous and prejudicial material bespeaks consciousness on his part of the baselessness of the proceedings.

[5] The CFMEU asserted that its application to dismiss the matter is prompted by the Director’s indication that he does not consider that he was bound by either his Second Further Amended Application or the FWC’s directions and seeks now to rely on material that is additional to what is the Second Further Amended Application and which was served after time for the Director’s service of evidence and submissions. The CFMEU submits that section 587 provides a broad discretionary power to the FWC to dismiss applications and extends to dismissing applications where an applicant’s conduct constitutes an abuse of process. 3

[6] The CFMEU refers to Rogers v The Queen 4 to assert that abuses of process generally fall into three categories, specifically:

• Where the court’s procedures are invoked for an illegitimate purpose;



• Where the court’s processes are used in a manner that is unjustifiably oppressive to one party; and



• Where the use of the court’s procedures will bring the administration of justice into disrepute.

[7] The CFMEU asserted that any procedural step taken in proceedings is also capable of being an abuse of the court’s processes. The CFMEU contended that the present proceedings are an abuse of process because of the manner in which they have been and continue to be conducted by the Director.

[8] The CFMEU pointed out that on 4 September 2014, Lend Lease instituted a section 505 application in respect to substantially the same misuses found by Vice President Watson to have occurred in these proceedings on certain of its sites. The CFMEU asserted that this was not surprising as in its original form and in its first amended form the only the thing the Director relied upon were matters set out in the Lend Lease application – the Director expressly referred to them.

[9] The CFMEU asserted that the Director exercised his power to make submissions in the section 505 proceedings under section 72 of the Fair Work (Building Industry) Act 2012 (Cth). The CFMEU submitted that after orders were made in those proceedings which the Director did not raise any issue with, the Director persisted with his application in the present matter.

[10] The CFMEU asserted that it is important to keep in mind that in the mind of the Director, these proceedings were always about the Lend Lease ‘misuses’ until the Director became aware that the Respondents would rely on the orders made in the Lend Lease proceedings and thereafter everything changed (and keeps changing).

[11] The CFMEU submitted that the Director, realising that the section 505 order provided a complete answer to his case, maneuvered to radically reframe and expand his case in submissions to provide a basis for the orders he sought. The CFMEU posited that the Director did this without providing any notice to the Respondents or to the FWC.

[12] The CFMEU asserted that the Director promulgated his Second Further Amended Application on the promise that the only matters that the Director relies on in addition to what is identified in paragraphs are the matters set out in subparagraphs 4(a), (b), (c) and (d). That is to say that the Director promised paragraph 4 identifies the whole of the documents that the Director proposes to tender at this stage of the proceedings.

[13] The CFMEU contended that on 26 October 2016, the Director wrote to the Respondents and pointed them to further material outside the documents identified in paragraph 4. The CFMEU submitted that the Director is therefore seeking to rely on documents that beyond the scope of the documents that he promised he would rely upon. In the submissions of the CFMEU, this has the purpose of vexing the Respondents and brings the administration of justice into disrepute. The CFMEU submitted that additionally, the Director has not bothered to lead any evidence or explain to any degree why the orders he seeks to be imposed on the Queensland and Victorian branches of the CFMEU are justified or relate to the misuses found by Vice President Watson. The CFMEU contended that this conveys that the proceedings are being brought for a collateral purpose.

[14] During the hearing on 14 November 2016, the CFMEU reiterated that the Director is relying on material that goes beyond the scope of the material that he promised he would rely upon. The CFMEU reiterated that this is part of the process of vexing the CFMEU. 5

The Director’s Submissions

[15] The Director relied on four points in reply to the CFMEU’s submissions. The Director contended that, firstly, he has not done and does not propose to do anything outside that which he described on the last occasion. The Director asserted that he did not tender any evidence other than that which is referred to in paragraph 4 of the Second Further Amended Application. 6 The Director asserted that he is happy to not rely on the judgment of Justice Dowsett referred to in the submissions of the CFMEU.

[16] The second point relied upon by the Director is that even if it be supposed that the Director is intending to rely on material beyond that which is referred to in paragraph 4, it would not follow that the Director’s application is vexatious within the meaning of section 587(1)(b) of the Act. The Director argued that this is because the substantive application was not initiated, and has not been prosecuted, to harass the Respondents or gain a collateral advantage.

[17] Thirdly, the Director contended that if I find that the Director is intending to rely on material that go beyond that which is referred to in paragraph 4, all that is required is an order that makes clear what material cannot be relied upon. Fourthly, the Director contended that there is a fundamental misunderstanding on the part of the Respondents of what the proceedings before Vice President Watson involved. The Director’s counsel elaborated on this fourth point during the hearing and this elaboration can be found at PN111 – PN 121 of the transcript.

The CFMEU’s Submissions in Reply

[18] The CFMEU agitated several points in reply. Firstly, the CFMEU asserted that at all times it was on the table that the CFMEU was going to lead further evidence in the proceedings. Secondly, the CFMEU gave an appeal book reference 7 and asserted that there was no reliance on statements of facts or evidence or on findings of the Royal Commission.

[19] Thirdly, the CFMEU pointed out that section 587 does not limit when the Fair Work Commission may dismiss an application 8 and that procedural steps that are an abuse of process should be dismissed, regardless of whether they strictly fall within frivolity or vexatiousness (as defined in section 587(1)(b)). The CFMEU asserted that the section is not exhaustive in terms of the matters that might lead the Commission to dismiss an application. Nevertheless, the CFMEU maintained its contention that the application has become vexatious because of the way in which it has been prosecuted.9

[20] Fourthly, the CFMEU asserted that it is entitled to know the case that it is required to meet. The CFMEU contended that merely prohibiting the Director from relying on certain material ‘is not a complete answer.’ 10

Consideration

[21] The CFMEU’s application to dismiss the substantive matter has arisen in light of the additional material relied upon by the Director. As such, I have confined my consideration of the CFMEU’s application to dismiss the matter to the additional material relied upon by the Director which the CFMEU objects to.

[22] Section 587(1) of the Act provides that:

“Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

   (b)  the application is frivolous or vexatious; or

   (c)  the application has no reasonable prospects of success.”

[23] As the CFMEU pointed out to me, 11 this section of the Act was recently considered by Commissioner Hunt in LCR Group Pty Ltd.12In LCR Group Pty Ltd Commissioner Hunt acknowledged that McHugh J’s observations in Rogers v The Queen indicate thatlegislation such as section 587 of the Act apply to procedural steps in the course of proceedings. I am therefore satisfied that Section 587 applies to the procedural steps taken by the parties in this matter. It follows that the additional material that the Director sought to rely on is subject to section 587 of the Act.

[24] In Steadman v The South Australian Potato Company Pty Ltd, 13 another case that the CFMEU pointed out to me,14 Commissioner Hampton considered section 587 of the Act. Commissioner Hampton referred to Gorman v Australia Post,15where a Full Bench stated that “frivolous or vexatious” are words that:

“convey an intention that the power to dismiss an application and to thereby deprive an applicant of the right to pursue an otherwise available cause of action should only be used in limited circumstances.”

[25] The Full Bench further stated that an application will be “frivolous or vexatious” if it lacks substance or is an abuse of process and that:

“the inquiry for the purposes of s. 587(1)(b) should be primarily directed to the substance of the unfair dismissal application.”

[26] As such, I agree with the submissions of the Director that the statutory inquiry raised by section 587(1)(b) focuses on the substance and motive with which the application is commenced and prosecuted. It is necessary then, to consider the motive of the Director in taking the procedural step of relying on the additional material that the CFMEU objects to.

[27] The additional material that the Director sought to rely upon has the predominant purpose of the prosecution of the Director’s case. Even if, as the CFMEU contends in its submissions, the additional material went beyond that which the Director promised it would rely upon, I am not convinced that the Director sought to rely upon this additional material predominantly to harass or embarrass the CFMEU, or to gain a collateral advantage. I am therefore not persuaded that the Director’s attempt to rely on the additional material was frivolous or vexatious. It follows that this is not a ‘limited circumstance’ where the applicant’s right to pursue a cause of action should be deprived pursuant to section 587 of the Act. 16

[28] I agree with the CFMEU to the extent that it asserts that section 587 does not limit when the Fair Work Commission may dismiss an application. As such, the Commission can dismiss an application that is, or becomes, an abuse of process, notwithstanding the fact that abuse of process is not mentioned in section 587 of the Act. The Director sought to rely upon the disputed material for the purpose of prosecuting his case. It does not follow that the material was relied upon by the Director for an illegitimate purpose. Furthermore, it does not follow that the CFMEU is unjustifiably oppressed or that the administration of justice is brought into disrepute by the Director’s reliance on material for the purpose of the prosecution of his case. Therefore, I am not persuaded that any of the three categories of abuse of process outlined in Rogers v The Queen are enlivened.

[29] While I am not persuaded that the application should be dismissed pursuant to section 587 or for an abuse of process, I acknowledge the CFMEU’s contention that merely prohibiting the Director from relying on certain material at this stage before the parties are given an opportunity to be heard again ‘is not a complete answer.’ 17 In these circumstances I will relist the matter to determine what material will be admissible.

Conclusion

[30] The CFMEU’s application to dismiss the substantive matter is dismissed.

[31] I will list the matter for further programming.

VICE PRESIDENT

Appearances:

Mr I. Neil of Senior Counsel and Mr R. Dalgleish for the Director

Mr R. Reitano of Counsel and Mr P. Boncardo for the CFMEU

Hearing details:

10am

14 November 2016

Sydney.

 1   Transcript, 14 November 2016, PN149.

 2   Balderstone Qld v CFMEU [2012] FCA 420.

 3   Steadman v The South Australian Potato Company Pty Ltd [2011] FWA 1300.

 4 (1994) 181 CLR 251.

 5   Transcript, 14 November 2016, PN53.

 6   Transcript, 14 November 2016, PN92.

 7   Transcript, 14 November 2016, PN134.

 8   Transcript, 14 November 2016, PN140.

 9   Transcript, 14 November 2016, PN142.

 10   Transcript, 14 November 2016, PN146.

 11   Transcript, 14 November 2016, PN145.

 12   [2016] FWC 7298.

 13   [2011] FWA 1300.

 14   Transcript, 14 November 2016, PN145.

 15   [2010] FWAFB 9413.

 16   Ibid.

 17   Transcript, 14 November 2016, PN146.

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