1
[2013] FWCFB 4250
DECISION
Fair Work Act 2009
s.604 - Appeal of decisions
Bechtel Construction (Australia) Pty Ltd
v
Maritime Union of Australia, The
(C2013/4129)
VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT HARRISON
COMMISSIONER SIMPSON SYDNEY, 5 JULY 2013
Appeal against decision [2013 FWC 2039] of Commissioner Booth at Brisbane on 9 April
2013 in matter number RE2012/1839.
[1] Bechtel Construction (Australia) Pty Ltd (Bechtel) has sought permission to appeal
from a decision issued by Commissioner Booth on 9 April 20131 and her subsequent order2
(Order) made on 11 April 2013. The decision and Order arose out of an application made by
the Maritime Union of Australia (MUA) under s.505 of the Fair Work Act 2009 (the Act) for
the Fair Work Commission to resolve a right of entry dispute. The dispute concerned
Bechtel’s refusal to allow officials of the MUA right of entry to any of its three LNG
construction sites on Curtis Island in Queensland, one of which is the Queensland Curtis LNG
Project (QCLNG Project) construction site.
[2] In the proceedings before the Commissioner the main issue was whether the MUA’s
eligibility rule permitted it to enrol as members any persons employed on the QCLNG Project
site. The MUA identified a range of persons working on the site which it contended fell
within the scope of its eligibility rule. Bechtel submitted that there were no persons on the site
who were covered by the MUA’s eligibility rule.
[3] Ultimately the Commissioner found in the MUA’s favour in respect of one relatively
small class of employees only, namely excavator operators at the facility known as the
Condock located on the QCLNG Project site. By way of brief explanation, the Condock is a
temporary facility at which large barges transporting aggregate from the mainland are moored
for the purpose of unloading. At the time of the hearing before Commissioner Booth, the
position was that when a barge carrying aggregate arrived at the Condock and needed to be
unloaded, an excavator driver employed by Bechtel was required to drive an excavator onto
the barge and then load the aggregate onto trucks which then transported the material to other
parts of the site for use in the construction process. The Commissioner made a finding of fact
1 [2013] FWC 2039
2 PR535532
AUSTRALIA FAIR WORK COMMISSION
[2013] FWCFB 4250
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that the excavator drivers who were required to perform this work spent about 60% of their
total working time performing it. We note that the correctness of this finding was challenged
by Bechtel in its appeal.
[4] The Order made by the Commissioner was as follows:
“A. Further to the decision given in this matter on 9 April 2013, [2013] FWC 2039 the
Fair Work Commission orders that:
1. A permit holder of The Maritime Union of Australia is entitled to enter the
premises of Bechtel Construction (Australia) on Curtis Island for the purpose
of holding discussions with one or more of the excavator operators at the
Condock should they wish to participate.
2. The parties shall meet and confer with a view to reaching agreement on an
appropriate venue for the holding of discussions when entry is notified in
accordance with s.484. The parties shall advise the Commission of the outcome
of their discussions.
B. This order will operate on and from 11 April 2013.”
[5] In its written submissions on the appeal filed in accordance with the Full Bench’s
directions on 20 June 2013, the MUA submitted that the factual position had changed since
the time of the hearing before the Commissioner in a way which rendered the appeal inutile,
and indicated that it wished to adduce further evidence in the appeal to demonstrate that this
was the case. In response to this, the Full Bench issued further directions which required the
parties to file an agreed statement of facts concerning those factual matters identified in the
MUA’s submissions about which the parties were in agreement. In response to those
directions, the parties filed an agreed statement of facts on 27 June 2013. This statement
recorded that at a meeting on 3 May 2013 which was arranged pursuant to paragraph A2 of
the Order, a representative of Bechtel, Mr Terry Prior, told Mr Paul Sheehan, an MUA
official, the following3:
“(a) Bechtel are no longer using excavators to unload aggregate at Curtis Island and
so they don’t have any excavator positions any more working at the Condock.
(b) The bulk of the aggregate transportation for the QCLNG Project had concluded
and the remaining amounts of aggregate were being transported by Roll On
Roll Off (RORO) and trucks (as required).
(c) This change had only taken place since Commissioner Booth’s Orders were
issued.
(d) As a result there was no need to discuss an appropriate venue for a meeting by
the MUA with potential members because there was no longer any need for the
MUA to access the Island.
(e) If, in the future, these circumstances changed, Bechtel would notify the MUA.”
[6] At the hearing of the appeal on 28 June 2013, counsel for Bechtel confirmed on
instructions that the above statements made by Mr Prior were consistent with the actual
position which applied at the QCLNG Project site. The agreed statement of facts also stated:
3 Paragraph 6
[2013] FWCFB 4250
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“As at the date of this Statement of Agreed Facts, there are no excavator positions
working at the Condock.”4
[7] On the basis of the agreed facts, the MUA submitted that Bechtel’s alteration of the
method of operations at the Condock had “destroyed the subject matter of the extant dispute”
and rendered the appeal hypothetical and pointless. On this basis, it was submitted,
permission to appeal should be refused. Bechtel on the other hand submitted that,
notwithstanding the agreed facts, permission to appeal should be granted on the following
bases:
(1) The appeal involved a significant jurisdictional challenge to the Commissioner’s
Order. This challenge was twofold. Firstly, it was submitted, there had never been a
“dispute about the operation of this Part” (that is, Part 3-4 of the Act) such as
properly to enliven proceedings under s.505 of the Act in the first place, since the
proceedings did not concern a dispute about the operation of Part 3-4 with respect to
an existing right of entry, but rather whether the MUA had a right of entry at all.
Secondly, the Order made by the Commissioner had the effect of declaring and
enforcing legal rights, not creating new rights concerning the manner in which right
of entry under Part 3-4 was to be exercised.
(2) The approach to the interpretation and application of the MUA’s rule adopted by the
Commissioner raised issues of potential future significance, both at the QCLNG
Project site and anywhere elsewhere where construction activity was carried out on
an island to which construction materials had to be transported.
(3) Because the Commissioner’s Order did not confine its operation to the QCLNG
project, it had potential application to two other Bechtel construction projects on
Curtis Island.
[8] After receiving submissions from counsel for both parties concerning the issue of
whether permission to appeal should be granted at the hearing on 28 June 2013, we
determined that we would refuse Bechtel permission to appeal. In announcing that decision at
the conclusion of the hearing, we gave short reasons for doing so, and indicated that we would
publish our full reasons in due course. This decision sets out our full reasons.
[9] We accept the submission of the MUA that there is no practical utility in granting
permission to appeal. It is well established that disputes of an industrial nature are not static,
but may change their nature and character over time. In United Firefighters’ Union of
Australia v Metropolitan Fire and Emergency Services Board5a Full Bench said:
“In Re PKIU; Ex parte Vista Paper Products Pty Ltd Gaudron J (with whom Brennan,
Dawson and Toohey JJ relevantly agreed) noted that:
“…an industrial dispute is not necessarily fixed and definite, either in terms of
its subject-matter or in terms of the parties to it; a dispute "may be diminished
or ended or enlarged or altered during ... proceedings in the Commission" (R v
4 Paragraph 7
5 PR973884 at [14]-[15]
[2013] FWCFB 4250
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Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 CLR 163, per
Murphy J at p 168) or, for that matter, at any stage during the course of the
dispute itself”.
Although that comment was made in the context of an “industrial dispute” within the
meaning of s.4 of the Industrial Relations Act 1988, it is equally applicable to a
dispute notified pursuant to a dispute settlement procedure in a certified agreement.”
[10] We would likewise consider that the comment of Gaudron J quoted by the Full Bench
is equally applicable to a right of entry dispute.
[11] When it first applied to the Fair Work Commission for it to deal with a right of entry
dispute under s.505 of the Act, the dispute identified by the MUA was broad in compass,
concerning as it did a claim for entry of MUA officials to all three Bechtel sites on Curtis
Island. By the time of the hearing before the Commissioner, the MUA, although it never
abandoned its broader claim, was focussing upon only certain categories of workers employed
at the QCLNG Project site. The Commissioner found in the MUA’s favour only in respect of
the excavator operators at the Condock on the QCLNG Project site, and given that the MUA
did not seek permission to appeal from the Commissioner’s decision and Order, the compass
of the dispute was necessarily narrowed to the issue of whether the MUA should be allowed
entry to the QCLNG Project site in order to access that small group of employees. As a result
of the changed factual situation described in the agreed statement of facts, we consider that
there is now nothing remaining of the subject matter of the dispute, with the result that to hear
and determine the appeal would serve no practical utility. Lack of utility is a well-established
basis for the refusal of permission to appeal.6
[12] It is theoretically possible that the use of excavator operators to unload aggregate at
the Condock on the QCLNG Project site might resume at some future stage. That is unlikely,
given that it was an agreed fact that the bulk of aggregate transportation to the site has
concluded, and given also that the Condock is itself a temporary facility being used in a
project which will necessarily have a finite life. In any event, as was properly conceded by
counsel for the MUA, if the use of excavator operators to unload aggregate at the Condock
were to resume, and a right of entry dispute then arose with respect to such employees
between Bechtel and the MUA, that would be a new dispute and not simply a continuation of
the existing dispute which the MUA has characterised as having come to an end because of
the changed factual circumstances. That being the case, the Order, assuming its validity, could
not apply with respect to that new dispute. A valid order made under s.505(2) can only be
made for the purpose of “deal[ing] with the dispute” which is the subject of the arbitration
being conducted by the Commission; it cannot operate to declare forever the rights of the
parties so as to determine the outcome of future disputes that have not yet come before the
Commission. Given that the MUA has submitted, and we accept, that the dispute which was
the subject of the arbitration before the Commissioner has effectively come to an end due to
changed factual circumstances, it necessarily follows that the Order can have no ongoing
operative effect and is spent. That conclusion underlines the practical inutility in granting
permission to appeal.
6 See e.g. Australian Rail, Tram and Bus Industry Union v Queensland Rail Limited [2013] FWCFB 2165 at [5]; Australian
Licenced Aircraft Engineers Association v Qantas Airways Ltd [2012] FWAFB 7791 at [8]-[9].
[2013] FWCFB 4250
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[13] Bechtel’s concern that the Order may have some application to its other two sites on
Curtis Island is answered by the conclusion that the Order is spent. Even if that were not the
case, the reference in paragraph A1 of the Order to the MUA being entitled to enter Bechtel
premises on Curtis Island “for the purpose of holding discussions with ... excavator operators
at the Condock” means that the Order could only ever have application to the QCLNG Project
site, since the location of the excavator operations at the Condock within that site meant that
the identified purpose of entry could not exist at any other site. Bechtel’s further concern that
the Commissioner’s decision and Order may have precedential value at other construction
sites appears to us to have little substance; the precise factual scenario upon which the
Commissioner determined to make the Order, including the finding that the excavator
operators spent approximately 60% of their time unloading from the barges, was unusual and
not something we have encountered in our collective experience before.
[14] Bechtel’s submission that the appeal raises the two significant jurisdictional issues
earlier identified does not in the circumstances provide a proper basis for permission to appeal
to be granted, for two reasons. Firstly, the lack of a useful result is a well-recognised reason to
refuse to grant relief even where jurisdictional error has been identified or to decline to
consider the merits of a claim of jurisdictional error.7 For the reasons we have earlier stated,
no practically useful result could flow from us hearing and determining Bechtel’s appeal.
Secondly, the jurisdictional issues raised by Bechtel have in a general way already been
considered and determined at the Full Bench level in a way adverse to Bechtel’s submissions
in Finance Sector Union of Australia v Police and Nurses Credit Society Ltd.8 Although that
decision was made in the context of the provisions of the former Workplace Relations Act
1996, the provisions in the current Act are sufficiently similar such as to render that decision
of continuing applicability. Bechtel accepted that we would have to conclude that Finance
Sector Union of Australia v Police and Nurses Credit Society Ltd was wrongly decided in
order for us to uphold its appeal on its pleaded jurisdictional grounds. We see no basis for
embarking upon the exceptional course of reconsidering the correctness of an earlier Full
Bench9 decision in the circumstances of this case.
[15] Accordingly we were not satisfied that it was in the public interest to grant permission
to appeal and we determined that in all the circumstances permission to appeal should be
refused.
[16] To the extent that there may remain any residual uncertainty concerning the legal
effect of paragraph A1 of the Order, we observe that it would be open to either party to apply
to Commissioner Booth for the revocation of the Order under s.603 of the Act.10 Having
regard to the matters adverted to in the agreed statement of facts and the MUA’s submission
that there is nothing left of the subject matter of the dispute which caused it to initiate the
proceedings in the first place, we consider that there would be a proper basis for such an
application. As was recognised by Munro J in Re Rheem-Rydalmere Plant Industrial Action
Order 200211, that “the reasons for making the order sought to be revoked no longer prevail”
7 See e.g. Transport Workers' Union of New South Wales v Australian Industrial Relations Commission (2008) 171 IR 84 at
[55]-[65] per Gray and North JJ and at [68] per Gyles J.
8 PR939977 at [32]-[69]
9 See Cetin v Ripon Pty Ltd (2003) 127 IR 205 at [48]-[49] as to the limited circumstances in which previous Full Bench
decisions will not be followed.
10 Section 598 makes it clear that a “decision” under s.603 includes an order.
11 PR929970 at [36]
[2013] FWCFB 4250
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is a critical consideration weighing in favour of the exercise of the discretion to revoke an
order.
VICE PRESIDENT
Appearances:
C. Murdoch of counsel, with A. Strain for the Appellant
S. Reidy of counsel, with D. Quinn for the Respondent
Hearing details:
2013.
Brisbane:
28, June.
Printed by authority of the Commonwealth Government Printer
Price code C, PR538386
WORK COMMISSION -- AUSTRALIA THE SEAL OF FA
