1
[2013] FWCFB 2568
DECISION
Fair Work Act 2009
s.604 - Appeal of decisions
Mr Ian McKewin; Mr Terry Hamilton; Mr Steve McDonald; Mr Rod
Brown; Mr Peter Hallam; Mr Ben Williams; Mr David O'Brien; Mr
Baldev Lahoye; Mr David McArthur; Mr David Sharrock; Mr Michael
Best; Mr Daniel Hill; Mr John Norton; Mr Darren Hughes
v
Lend Lease Project Management & Construction (Australia) Pty Ltd
(C2013/470)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT SAMS
COMMISSIONER BULL SYDNEY, 3 MAY 2013
Appeal against decision [2013] FWC 1527] and s.418 Order PR534722 of Senior Deputy
President Richards at Brisbane on 11 March 2013 in matter number C2013/3516.
[1] This is an appeal against an interim order made under s.420(2) of the Fair Work Act
2009 (FW Act) by Senior Deputy President Richards on 11 March 20131 (the Order), and the
accompanying decision of the Senior Deputy President of the same date2 giving his reasons
for the making of the Order (the Decision). The appellants are 14 of the 20 persons identified
in the Order as employees of the respondent to this appeal, Lend Lease Project Management
& Construction (Australia) Pty Ltd (Lend Lease), and who were bound by the Order (the
Employees).
Background and the Decision and Order under Appeal
[2] The circumstances in which the Order came to be made, and events thereafter, require
some description. We should note at this point that the appellants at the hearing of the appeal
sought to adduce further evidence by way of a statement of Alexander Victor Paul Cousner,
an industrial officer of the Construction, Forestry, Mining and Energy Union (CFMEU), dated
1 PR534722
2 [2013] FWC 1527
AUSTRALIA FAIR WORK COMMISSION
[2013] FWCFB 2568
2
23 April 2013, which described some of the circumstances known to him concerning relevant
events before and after the making of the Order. We determined to admit that evidence under
s.607(2)(a) of the FW Act. The facts stated in Mr Cousner’s statement were not the subject of
any contest by Lend Lease. We have relied upon the contents of that statement, as well as the
facts recited in the Decision, the materials in the Appeal Book, other documents appearing in
the case file, and agreed or uncontested statements of fact which were made by counsel for the
parties at the hearing of the appeal, in order to construct our narrative of what occurred.
[3] On 11 March 2013, at approximately 2.30 pm, Lend Lease filed an application for an
order under s.418 of the FW Act against the Employees. The application also sought an
interim order under s.420(2) in the event that the primary application could not be heard and
determined within 48 hours. It is necessary to set out the grounds for the making of the orders
stated in the application, given that they formed the major part of the very limited material of
a factual nature which was before the Senior Deputy President when he made the Order. The
grounds were as follows:
“1 Lend Lease Project Management & Construction (Australia) Pty Ltd is a
‘national system employer’ within the meaning of section 14 and 30D of the
Fair Work Act 2009. Lend Lease Project Management & Construction
(Australia) Pty Ltd employees are national system employees within the
meaning of section 13 of the Fair Work Act 2009.
2 Each of the employees of each of the subcontractors is a national system
employee or is otherwise a person within the scope of section 419 of the Fair
Work Act 2009.
3 On Monday 11 March 2013, Lend Lease Project Management & Construction
(Australia) Pty Ltd employees identified in 3(i) have withdrawn their labour
and in doing so engaged in alleged unprotected industrial action .
4 The industrial action referred to in paragraph 2 above [sic] is unprotected
industrial action within the meaning of the Fair Work Act 2009.
5 The employees identified in 3(i) have attended a picket line at the Oral Health
Centre, 288 Herston Road, Herston, Brisbane,
6 The employees identified in 3 (i) are seeking to influence subcontractors from
performing work at the Oral Health Centre,
7 This project is a significant Federal Government Community project. The
delay to its completion caused by this alleged unprotected industrial action is
against the interests of creating work opportunities and sustainable
employment for the South East Queensland community, notwithstanding the
[2013] FWCFB 2568
3
contractual implications for Lend Lease Project Management & Construction
(Australia) Pty Ltd with its clients.”
[4] Lend Lease’s application under s.418 was accompanied by an application for an order
for substituted service. This application sought that service upon the Employees of the s.418
application be effected by way of an SMS message, or by display of the application at their
workplace, or by distribution of the application “on site”. The grounds stated in support of
this application were:
“i. The above listed workers have commenced alleged unprotected industrial
action
ii. The major contractor is Lend Lease Project Management & Construction
(Australia) Pty Ltd
iii. The alleged unprotected industrial action commenced on 11 March2013 when
approximately 18 workers left the site.
iv. The industrial action referred to above is alleged unprotected industrial action
within the meaning of Fair work Act 2009.
v. The employees were not authorised by to [sic] leave the site or stop work.
vi. It is logistically difficult to identify and notify the workers about the
application.”
[5] At about 3.00 pm on 11 March, the CFMEU became aware that Lend Lease had filed
its s.418 application. It appears that this was a result of the CFMEU being contacted by a
number of the Employees who were CFMEU members, who were aware that Lend Lease had
made the application, and who sought CFMEU advice and representation with respect to that
application. Mr Cousner on behalf of the CFMEU contacted the Fair Work Commission to
seek to obtain details of the hearing of the Lend Lease application. At about 4.00 pm, he was
advised by the Senior Deputy President’s Associate that the matter would probably be heard
that night, that the preliminary and unconfirmed time for the hearing was 6.00 pm that
evening, but that he should call back later and obtain confirmation of the time for the hearing.
[6] Mr Cousner had by this time given some consideration as to what he might put in
opposition to Lend Lease’s application if the matter was the subject of a hearing that evening.
In his statement of evidence, he identified two submissions he would have made: first, that
there was no industrial action currently occurring, since normal working hours would have
ended by the time the hearing commenced, and second, that on the basis that the Employees
did not intend to take any further action the following day, there was no basis to conclude that
industrial action was threatened or impending.
[2013] FWCFB 2568
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[7] However, no hearing commenced that evening. When Mr Cousner spoke to the Senior
Deputy President’s Associate again at about 4.45 pm, he was advised that Lend Lease’s
application was not going to be heard that day and would likely be heard either on 12 March
or possibly 13 March.
[8] At about 5.45 pm on 11 March, the Senior Deputy President granted Lend Lease’s
application for an order for substituted service. A copy of the order was sent to Lend Lease’s
representative in the proceedings. Paragraph [1] of the order for substituted service stated:
“[1] Upon reading the application for an order for substituted service of Lend Lease
Project Management & Construction (Australia) Pty Ltd (“the Applicant”) dated 11
March 2013, and having familiarised myself with the grounds to that application as
well as the grounds to the substantive application for an order to stop etc. (unprotected)
industrial action (“the Application”) I order that service otherwise required by the
Rules of the Fair Work Commission be dispensed with.”
[9] At about 6.10 pm on 11 March, the Senior Deputy President issued the Decision and
the Order. The substantive obligations imposed upon the Employees by clause 3 of the Order
were expressed in the same terms as contained in the draft order attached to Lend Lease’s
initiating application. Clause 3 provided:
“3 INDUSTRIAL ACTION TO STOP AND NOT OCCUR
3.1 All persons and organisations bound by this Order must stop and not engage in
industrial action as defined in clause 4 in respect work being [sic] conducted at
any of the sites identified at 2.3 and must not further engage in, recommence,
or threaten to engage in, industrial action as defined in clause 4 whilst the
Order remains in operation.
3.2 All employees of Lend Lease Project Management & Construction (Australia)
Pty Ltd listed in the above clause 2.1.1 (subject to the condition set out therein)
must:
3.2.1 stop taking industrial action as defined in clause 4.
3.2.2 not aid, abet, direct, counsel, procure, authorise, influence or encourage
any person to whom this Order applies to engage in conduct referred to
in clause 3.2.1 above.
3.2.3 Not threaten or propose to do any of the things referred to in clause 4.”
[10] The expression “industrial action” in clause 3 of the Order was defined in clauses 4.2
and 4.3 of the Order in a way which in substance was the same as the definition of “industrial
[2013] FWCFB 2568
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action” contained in s.19 of the FW Act, excluding references to industrial action by
employers and including an exception for protected industrial action within the meaning of
s.408 of the FW Act. Again, subject to some changes to paragraph numbering, this
reproduced what was in Lend Lease’s draft order. Clause 5 provided that service of the Order
could be effected by sending it by express post to the residential address of each of the
Employees, and also by a text message to each of the Employees. Clause 5 identified the
mobile telephone number of each of the Employees, and further provided that the text
message was to be in the following terms or similar:
“Fair Work Commission has issued a return to work Order, a full copy has been sent to
your home address by express post. The Order requires you to stop and not engage in
industrial action in respect work [sic] being conducted at Lend lease sites, QGCU,
RNA, QR Narangba, UQOH and Plantyard and not further engage in, recommence, or
threaten to engage in, industrial action as defined in clause 4 whilst the Order is in
operation. If you do not receive a copy of the order by express post within 48 hours
you are to contact your employer. If you wish to test the veracity of the order you may
contact the Fair Work Commission on 07 3000 0359.”
[11] Clause 6 of the Order provided that the Order took effect from 5.30 pm on 11 March
2013 and remained in force until the substantive application was determined.
[12] Paragraphs [4]-[7] and [9]-[12] of the Decision set out the Senior Deputy President’s
reasons for making the Order as follows:
“[4] I have elected in the circumstances not to convene a hearing at short notice as
would customarily be the case.
[5] The reason for this is that the relevant employees may require time to consider
the application which is now on foot, its legal consequences, and to seek out
representation for the purposes of the determination of the application proper.
[6] I do not consider that in the circumstances the employees individually will be
likely to effect such a course of action within 48 hours of the application having been
made. At least, I am not satisfied that the 20 or so individual, direct employees of the
principal contractor will all be able to give full attention to the application and its
consequences within such a limited timeframe.
[7] Further, it is of course not practicable for the Commission itself to contact each
of the 20 relevant employees to determine their particular circumstances in relation to
the application. This gives me further reason to consider that the application cannot be
determined within 48 hours.”
....
[2013] FWCFB 2568
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“[9] As I have said above, it is not practicable for me to determine this application
with the usual expedition. This is because I am concerned as to the procedural fairness
that would be afforded the relevant employees who have been served with the
application as individuals (such that the application can be heard at one time).
[10] Notwithstanding this, any of the named relevant employees may contact my
chambers (by email or facsimile) to put to me any circumstances they wish me to
consider relevant to the interim order (such as whether they have been mis-named or
mis-identified etc) or to seek any procedural advice, as the case may be. The contact
details for chambers are set out below.
[11] That aside, because I cannot on a reasonable view determine the application (as
it relates to some 20 separate individuals) within 48 hours, pursuant to s.420(2) of the
Act I am obligated to “make an interim order that the industrial action to which the
application relates stop or not occur [...]”.
[12] It appears to me that it would not be contrary to the public interest to make
such an interim order.”
[13] As to the further progress of the matter, the Senior Deputy President indicated in the
Decision that “It is not anticipated, however, that the application will be heard in the
immediately near future”3, but gave no reasons why that was the case. He also stated that
should Lend Lease withdraw the application before the application was determined, “the order
will lapse as a matter of automaticity”4.
[14] Lend Lease at no stage asked the Senior Deputy President to make an interim order on
11 March. Neither the appellants, the CFMEU, nor Lend Lease were aware that the Senior
Deputy President was contemplating making an interim order on 11 March.
[15] Mr Cousner’s evidence was that he became aware on 12 March that the Employees
had, on the evening of 11 March, received a text message from Lend Lease in the following
terms:
“Fair Work Commission has issued a return to work Order. A full copy has been sent to
your home address by express post and is on workplace noticeboards. The Order
requires you to stop and not engage in industrial action in respect of work being
conducted at Lend lease sites. If you do not receive a copy within 48 hours you are to
contact your employer. If you wish to test the veracity or authenticity of the Order you
may contact the FWC on 07 3000 0359.”
3 At [14]
[2013] FWCFB 2568
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[16] His evidence in this respect is confirmed by an email communication from Lend
Lease’s representative in the matter to the Senior Deputy President’s Associate dated 12
March, which identified the content of the text message and stated that it had been distributed
at 8.29 pm on 11 March. This email communication further confirmed that the Order had been
distributed to the Employees “on-site”, and would be express posted that day. The same email
communication stated:
“The majority of the employees in question have refused to return to work. The
company has been in consultation with the employees today but has been unable to
obtain a return to work.”
[17] At the hearing of the appeal, we were informed by counsel that it was an agreed fact
that the Employees did take industrial action by way of a cessation of work on 12 March, not
as a continuation of what had occurred the previous day but as a consequence of the making
of the Order.
[18] On 13 March, Lend Lease’s representative sent a further email confirming that each of
the Employees had been sent the Order by express post on 12 March. This email identified the
name and residential address of each of the Employees. Neither this email, nor the earlier
email of 12 March, indicated that there had been any attempt to serve the Decision, as distinct
from the Order, on any of the Employees.
[19] That same day, Lend Lease filed a notice of discontinuance of its s.418 application
pursuant to s.588 of the FW Act. In response to a query from the Senior Deputy President’s
Associate, Lend Lease’s representative further indicated that Lend Lease applied for the Order
to be revoked pursuant to s.603(2)(b). The Senior Deputy President later that day made a
further order5 revoking the Order in the following terms:
“1. Pursuant to s.603 of the Fair Work Act 2009 (“the Act”) the Fair Work
Commission orders that the interim order issued on 11 March 2013 [PR534722] be
revoked.
2. This order is made pursuant to an application of the Applicant’s notified
representative (Queensland Master Builders Association) in accordance with
4 At [17]
5 PR534777
[2013] FWCFB 2568
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s.603(2)(b) of the Act. The application follows the withdrawal of the application under
s.418 of the Act (in C2013/3516) which gave rise to the interim order.
3. This order shall come into effect from 13 March 2013.”
[20] At no stage was there any hearing, formal or informal, concerning the making of the
Order, the Decision, the order for substituted service or the revocation order.
Submissions
[21] The appellants submitted that the Order was vitiated by jurisdictional error in two
respects:
(1) the Employees were denied procedural fairness; and
(2) the condition precedent to the making of an interim order under s.420(2) could
not have been satisfied on the facts of this case.
[22] On the basis of these jurisdictional errors, the appellants submitted that permission to
appeal should be granted, the appeal upheld, and the order quashed. The appellants
emphasised in this connection that, absent the Full Bench making such orders, they faced the
risk of being subject to proceedings for civil penalties brought before a relevant court - if not
by Lend Lease, then by a statutory enforcement authority.
[23] Lend Lease’s opposition to the appeal was put on a limited basis given that, as it
frankly stated, it had no interest in the maintenance of the Order. It identified that there was a
significant issue as to whether permission to appeal should be granted, having regard to the
fact that the Order was no longer operative, that Lend Lease did not intend to take any
enforcement action in respect of the Order, and that “there is no outstanding issue between the
parties”6. Lend Lease also made submissions identifying, in the event that permission to
appeal was granted, considerations relevant to the existence and the extent of the obligation to
provide procedural fairness prior to the making of an interim order under s.420(2).
[24] The appellants and Lend Lease agreed in their submissions that the revocation order
made by the Senior Deputy President under s.603 of the FW Act on 13 March operated
6 Lend Lease’s written submissions paragraph 1.
[2013] FWCFB 2568
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prospectively, and did not affect the operative status of the Order from when it was made on
11 March until the revocation order was made on 13 March. We accept that that was the
effect of the revocation order made in this particular case.
[25] We also note the important concession which was made by Lend Lease in the course
of its submission, namely that had it been heard by the Senior Deputy President on 11 March
as to whether an interim order was required to be made at that time, it could not have
submitted that the statutory pre-condition for the making of such an order, namely that its
application was unable to be determined within two days after the making of the application,
was satisfied. For the reasons expressed later in this decision, we think that this concession
was properly made.
Consideration
[26] Section 420 forms part of a statutory scheme contained in Part 3-3 Division 4 of the
FW Act under which the Fair Work Commission has obligations to make orders stopping or
preventing the organisation of or engagement in non-protected industrial action in specified
circumstances. For present purposes, it is only necessary to set out s.418 and s.420 in that
scheme:
“418 FWC must order that industrial action by employees or employers stop etc.
(1) If it appears to the FWC that industrial action by one or more employees or
employers that is not, or would not be, protected industrial action:
(a) is happening; or
(b) is threatened, impending or probable; or
(c) is being organised;
the FWC must make an order that the industrial action stop, not occur or not be
organised (as the case may be) for a period (the stop period) specified in the
order.
Note: For interim orders, see section 420.
(2) The FWC may make the order:
(a) on its own initiative; or
(b) on application by either of the following:
[2013] FWCFB 2568
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(i) a person who is affected (whether directly or indirectly), or
who is likely to be affected (whether directly or indirectly), by
the industrial action;
(ii) an organisation of which a person referred to in
subparagraph (i) is a member.
(3) In making the order, the FWC does not have to specify the particular
industrial action.
(4) If the FWC is required to make an order under subsection (1) in relation to
industrial action and a protected action ballot authorised the industrial action:
(a) some or all of which has not been taken before the beginning of the
stop period specified in the order; or
(b) which has not ended before the beginning of that stop period; or
(c) beyond that stop period;
the FWC may state in the order whether or not the industrial action may be
engaged in after the end of that stop period without another protected action
ballot.”
420 Interim orders etc.
Application must be determined within 2 days
(1) As far as practicable, the FWC must determine an application for an order
under section 418 or 419 within 2 days after the application is made.
Interim orders
(2) If the FWC is unable to determine the application within that period, the
FWC must, within that period, make an interim order that the industrial action
to which the application relates stop, not occur or not be organised (as the case
may be).
(3) However, the FWC must not make the interim order if the FWC is satisfied
that it would be contrary to the public interest to do so.
(4) In making the interim order, the FWC does not have to specify the
particular industrial action.
(5) An interim order continues in operation until the application is determined.”
[27] Section 418, when read together with s.420, is “a remedy that is clearly intended to be
available at short notice to deal with unprotected industrial action”.7 The obligation upon the
7 CEPU and CFMEU v Abigroup Contractors Pty Ltd [2013] FWCFB 453 at [29]
[2013] FWCFB 2568
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Commission in s.420(1) to determine an application for orders under s.418 within two days so
far as practicable underlines the legislature’s intention that the Commission is to act quickly
and effectively in relation to such industrial action in response to an application made by any
person in the categories identified in s.418(2)(b). Section 420(2) “backstops” this position by
requiring the making of an interim order in identified circumstances.
[28] With respect to s.420(2), it is clear that a conclusion by the Commission that it is
unable to determine an application within the two day period specified in s.420(1) is a
condition precedent for the making of an interim order. Absent such a conclusion, the
Commission is under no duty, and has no power, to make an interim order. Counsel for Lend
Lease in his submissions characterised the nature of the required conclusion as being one of a
finding of jurisdictional fact, and we are inclined to think that this is correct. The alternate
view might be that the conclusion that is required is in the nature of the formation of an
opinion or the reaching of a state of satisfaction, but, as counsel for the appellants pointed out,
there is no express language to this effect in s 420(2), in contrast to other provisions of the
FW Act which use express language such as, for example, s.420(3) (“if the FWC is satisfied”)
and s.423(2) (“FWC must be satisfied”).
[29] If the condition precedent to the making of an interim order under s.420(2) does
indeed involve the determination of a question of jurisdictional fact, then that is not a matter
of discretion. It is a question which “allow[s] for only one correct answer ... either yes or no”.8
Therefore in an appeal under s.604 of the FW Act from a finding of jurisdictional fact, the
Full Bench must be concerned with whether the decision-maker at first instance reached the
right conclusion as to the existence or otherwise of the jurisdictional fact, not simply with
whether the challenged finding was reasonably open.9 Additionally, where the primary facts
are not in dispute or have been determined by the first instance decision-maker, the Full
Bench in such an appeal will apply the principle stated in Warren v Coombes10, namely that it
is in as good a position as the decision-maker to decide on the proper inference to be drawn
8 Public Service Association of South Australia Incorporated v Industrial Relations Commission of South Australia [2012]
HCA 25; (2012) 86 ALJR 862 at [31] per French CJ.
9 Pawel v Australian Industrial Relations Commission [1999] FCA 1660, (1999) 97 IR 392 at 395 [14] per Branson and
Marshall JJ
10 (1979) 142 CLR 531 at 551 per Gibbs ACJ and Jacobs and Murphy JJ
[2013] FWCFB 2568
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from those facts.11
[30] On the alternate possible characterisation of s.420(2) as requiring the formation of an
opinion or the reaching of a state of satisfaction as to the Commission’s capacity to determine
the application within the two day time period, it would be necessary for an appellant to
demonstrate error of the House v The King12 type in order for a Full Bench to overturn a
member’s finding at first instance about this matter.13
[31] We do not need in this case to express a concluded view as to the issue of the nature of
the conclusion required by the condition precedent in s.420(2), because we are satisfied that
on any approach the Senior Deputy President’s conclusion at paragraph [11] of the Decision
that he could not “on a reasonable view determine the application ... within 48 hours” was in
error. At the time the Senior Deputy President reached this conclusion, less than four hours
had passed since the application had been made by Lend Lease. His Honour had earlier
granted an order for substituted service, which allowed the Employees to be served with the
application by way of an SMS text message. That having occurred, there was no reason we
can identify why a hearing of Lend Lease’s application could not have occurred on the
evening of 11 March, at any time on 12 March, and/or on the morning of 13 March.
[32] It is clear that the Senior Deputy President was concerned about the fact that the
respondents to the application were 20 named individuals, and that they may not have been
“able to give full attention to the application and its consequences within such a limited
timeframe”.14 However, that did not justify the conclusion that the application could not be
determined in the prescribed time period. It will always be the case that any respondents to a
s.418 application have to expect that they will be called on to provide to the Commission their
response to the application within a short timeframe, and with limited opportunity to consider
their position and to obtain legal or other advice. As was stated by the Full Bench in CEPU
and CFMEU v Abigroup Contractors Pty Ltd15:
11 Ms Tamicka Louise Dover-Ray v Real Insurance Pty Ltd [2010] FWAFB 2670 at [27] is an example of this approach being
taken to an appeal involving a challenge to a finding of jurisdictional fact.
12 (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ
13 Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 at 205 [20]-
[21] per Gleeson CJ and Gaudron and Hayne JJ
14 Decision at paragraph [6]
15 [2013] FWCFB 453 at [30]
[2013] FWCFB 2568
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“The statutory injunction to determine matters within two days (as far as practicable)
emphasises that matters under the provisions will necessarily be conducted with
expedition and the opportunity to present a case will be limited. The scheme of this
legislation carries with it the expectation that when members of an organisation engage
in a stoppage of work, they need to be ready at short notice to be represented in any
proceedings regarding their conduct and put such submissions that may be available to
them to avoid the consequences of further orders arising from their conduct.”
[33] The above position applies, in our view, whether or not the employees the subject of a
s.418 application are members of, or represented by, an organisation.
[34] If, once a s.418 application is called on for hearing, any employee respondents to the
application fail to appear, or seek an adjournment for the purpose of preparing their case
and/or seeking legal or other representation, or it becomes apparent to the Commission
member hearing the matter that the employee respondents are in no position to properly
respond to the application, then that may, depending on the circumstances, form the basis of a
conclusion that the application cannot be determined in the required two day period. Even
then the Commission may consider that the factual position is sufficiently clear to allow the
application to be determined. But here, none of those circumstances had yet arisen, because
there had been no hearing at which matters of this type could be ascertained. There was
simply nothing before the Senior Deputy President to form the basis for a conclusion that the
Employees would not be ready to respond to the application whenever it was called on for
hearing. Indeed, the contact made by the CFMEU with the Commission with respect to Lend
Lease’s application which we have detailed earlier was strongly indicative of a contrary
conclusion.
[35] The Senior Deputy President also expressed the view that “it is of course not
practicable for the Commission itself to contact each of the 20 relevant employees to
determine their particular circumstances in relation to the application”.16 Whether this was
practicable or not, it was certainly not necessary (let alone desirable) for the Commission to
make individual contact with each of the Employees to ascertain his response to the matters
raised by the application. The Senior Deputy President, having already made an order for
substituted service, had only to have the matter listed for hearing within the prescribed
timeframe. The application for substituted service had listed the mobile telephone number of
16 Decision at [7]
[2013] FWCFB 2568
14
each of the Employees, so there was no apparent difficulty in having any listing of the matter
for hearing communicated to the Employees by the Commission; alternatively and in any
event the Senior Deputy President could have ordered Lend Lease to communicate the listing
to the Employees. Accordingly, this perceived difficulty identified by the Senior Deputy
President formed no basis for the conclusion that the application could not be determined
within two days.
[36] Accordingly, as at 11 March, the condition precedent for the compulsory exercise of
power under s.420(2) did not exist. The Senior Deputy President had no power to make the
Order.
[37] The result of the course taken by the Senior Deputy President was to deny the
Employees procedural fairness. The well-established principle is that where a statute confers
power upon a public official to destroy, defeat or prejudice a person’s rights, interests or
legitimate expectations, the rules of natural justice will regulate that power unless they are
excluded by plain words of necessary intendment.17 The requirements of subsections (1) and
(2) of s.420 may have the effect, in certain circumstances, of circumscribing the operation of
the audi alteram partem rule of natural justice in respect of an application for s.418 orders. As
the Full Bench said in Construction, Forestry, Mining and Energy Union v Hooker Cockram
Projects NSW Pty Ltd18:
“...the particular rulings, actions or steps which may be considered necessary to have
afforded procedural fairness or natural justice to the appellant need to be considered in
the context of s.420 and not be such as to effectively defeat the operation of that
section.”
[38] The critical question, as the Full Bench identified in the above decision, is “what does
the duty to act fairly require in the circumstances of the application”?19
[39] The circumstances which pertained on the evening of 11 March, which we have earlier
described and analysed, were not such as to require or permit the deprivation of any capacity
on the part of the Employees to be heard in relation to Lend Lease’s application. In relation to
17 Annetts v McCann (1990) 170 CLR 596 at 598 per Mason CJ, Deane J and McHugh JJ
18 [2011] FWAFB 3658 at [18]
19 Ibid
[2013] FWCFB 2568
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the making of an interim order under s.420(2), the course adopted by the Senior Deputy
President meant that the Employees were deprived of an opportunity to make submissions
about two essential matters - the first being whether the substantive application could be heard
in the two day period, and the second being whether the making of an interim order would be
contrary to the public interest and thus not permitted under s.420(3). On the material before
us, it is apparent that there were substantive submissions which the Employees could have
made as to both matters. As to the first, the Employees could simply have put that they were
ready to proceed to a hearing of the application forthwith so as to permit it to be determined in
the two day period. On the basis of Lend Lease’s concession referred to earlier, such a
submission would not have been contested. As to the second, the Employees could have
submitted that, on the basis that industrial action had ended and was not going to resume, it
was against the public interest to make such an order. The Senior Deputy President ultimately
may not have accepted such submissions if they had been made. But the point is that the
Employees were deprived of the possibility of a successful outcome by not being given the
opportunity to make any submission about the making of an interim order.20
[40] The denial of procedural fairness to the Employees constituted a further instance of
jurisdictional error.21
[41] We would add two further observations about the matter. Firstly, the fact that Lend
Lease’s application was never listed for hearing at any time before it was discontinued on 13
March makes it difficult to conclude that the Commission’s obligation under s.420(1) to
determine, if practicable, the application in two days was satisfied.
[42] Secondly, a further result of the course taken by the Senior Deputy President was that
at the time he made the Order, he had no material before him to support the proposition that
industrial action was happening, or was threatened, impending or probable, or was being
organised, apart from the bare allegations contained in Lend Lease’s application. There is a
real question as to whether the Commission requires some level of satisfaction as to these
matters before it can make an interim order under s.420(2). This question was not the subject
of any substantial debate in the hearing of this appeal, although counsel for Lend Lease did
20 See Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147
21 For the reasons explained by Kirby J in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005)
228 CLR 470 at 491 [71].
[2013] FWCFB 2568
16
submit that the Commission would need to satisfy itself that there was a “serious question to
be tried” as to the existence of any actual or potential industrial action. The question arose in
Construction, Forestry, Mining and Energy Union v Hooker Cockram Projects NSW Pty Ltd,
but the Full Bench did not find it necessary to decide it.22 Likewise, it is not necessary for us
to decide it in this appeal. Nevertheless, without determining whether some level of
satisfaction as to the existence of actual or potential industrial action is a jurisdictional
precondition to the exercise of power under s 420(2), we would indicate that, if circumstances
permit, it would at least be highly desirable for the Commission to be satisfied that there is a
prima facie case or a serious question to be tried as to this matter. Otherwise, there is the risk
of interim orders being made which are futile because there is in reality no actual or potential
industrial action to which they can apply. As was stated in Transport Workers’ Union of New
South Wales v Australian Industrial Relations Commission23, the making of futile orders of
this nature bears the danger of bringing the Commission and the statutory scheme into
disrepute.
Orders
[43] In the light of the above conclusions, there remains the question of what orders should
be made in respect of the appeal. Lend Lease, as earlier stated, has submitted that permission
to appeal should be refused because the Order was revoked on 13 March and, so far as it was
concerned, it did not propose to take any action under the FW Act against the Employees with
respect to any issue concerning non-compliance with the Order. However, there are a number
of matters that were raised by the appellants which we consider must be given significant
weight:
(1) The making of an order which is demonstrably beyond power would usually be
an important factor in favour of the grant of permission to appeal and the
quashing of the impugned order.
(2) The facts disclose that there may be a live issue as to compliance with the
Order, in circumstances where enforcement proceedings may be commenced
22 [2011] FWAFB 3658 at [15]
23 (2008) 171 IR 84 at 96 [18] per Gray and North JJ
[2013] FWCFB 2568
17
by persons other than Lend Lease24, and in circumstances where the passage of
time is insufficient to suggest that the possibility of enforcement proceedings is
no more than theoretical.25
(3) Although in any enforcement proceedings against the Employees it would be
open to the Employees to mount a collateral challenge to the validity of the
Order, the Employees should not be put to that potential expense and
inconvenience where the lack of power to make the Order has been
demonstrated in this appeal.
[44] We accept the submissions of the appellants as to the relief to be granted in the appeal.
The appellants’ jurisdictional challenge to the Order has been sustained. There is no good
reason to maintain the Order, which we have found to have been made beyond power, and
there is potential utility in quashing it. Accordingly we make the following orders:
1. Permission to appeal is granted.
2. The appeal is upheld.
3. The interim order made by Senior Deputy President Richards on 11 March
2013 in matter C2013/3516 [PR534722] is quashed.
VICE PRESIDENT
Appearances:
R. Reitano of counsel with T. Roberts for the Appellants
A. Gotting of counsel for the Respondent
Hearing details:
2013.
24 See FW Act s.539 item 15
25 Cf. Transport Workers’ Union of New South Wales v Australian Industrial Relations Commission (2008) 171 IR 84 at 110
[60] per Gray and North JJ and 112 [67] per Gyles J.
[2013] FWCFB 2568
18
Sydney.
24 April.
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