[2014] FWCFB 174
The attached document replaces the document previously issued with the above code on 29
January 2014.
The citation in footnote 17 is amended to Warrell v Fair Work Australia [2012] FCA 267 at
[8] per Perram J
Abby Lang
Associate to Deputy President Gostencnik
Dated 6 February 2014
1
Fair Work Act 2009
s.604 - Appeal of decisions
E. Allen and Ors
v
Fluor Construction Services Pty Ltd
(C2013/1523)
PRESIDENT JUSTICE ROSS
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER SIMPSON
MELBOURNE, 29 JANUARY 2014
Appeal against decision in Transcript and Order [PR541318] of Senior Deputy President
Richards at Brisbane on 4 September 2013 in matter number C2013/5890 - s.418 Fair Work
Act 2009 (Cth) - adjournment refused - denial of procedural fairness - observations about the
form of the order - seeking an order which is contrary to authority without alerting the
presiding Member to the contrary authority is inconsistent with a legal practitioner’s duty to
the Commission - Legal Profession (Solicitors) Rule 2007 (Qld) - permission to appeal
granted - appeal upheld, order quashed and application dismissed.
Introduction
[1] In the afternoon of 4 September 2013 some 70 employees of Fluor Construction
Services Pty Ltd (Respondent) stopped work. Following a hearing conducted that evening
Senior Deputy President Richards made an order1 under s.418 the Fair Work Act 2009 (Cth)
(Act) directed at stopping unprotected industrial action and binding certain employees of the
Respondent. Mr Edwin Allen and 22 other employees2 (Appellants) who are bound by the
order lodged a notice of appeal pursuant to s.604 of the Act on 24 September 2013 against the
decision3 and order of the Senior Deputy President. This decision deals with the appeal.
Background
[2] It is necessary that we set out, in some detail, the background to this appeal.
[3] On 4 September 2013 at 4:40pm the Respondent applied for orders under s.418 of the
Act to stop unprotected industrial action. The orders were directed to the Construction,
Forestry, Mining and Energy Union (CFMEU), the Automotive, Food, Metals, Engineering,
Printing and Kindred Industries Union (AMWU) and certain employees of the Respondent,
1 PR541318
2 The other appellants are G Armstrong, S Baucke, G Bitton, D Bullock, G Docherty, M Edwards, A Greaves, R Hale, T
Harris, R Harrison, P Hiles, A Martin, S Pekin, J Pisciones, R Shanner, T Stokes, N Thomas, C Thompson, D Treleaven,
J Vana, T Warrington and M Webster
3 The Senior Deputy President gave reasons for his decision to make an order in Transcript at PN342-PN352; AB56-57
[2014] FWCFB 174
DECISION
E AUSTRALIA FairWork Commission
[2014] FWCFB 174
2
then employed to work on the GLNG Upstream Project at Fairview under the Fluor
Construction Services Pty Ltd GLNG Upstream Project Greenfield Agreement 2011 (the
Fluor employees). In support of its application the Respondent alleged that at around 2:00pm
on that day about 70 Fluor employees engaged in mechanical installation work at the Hub
Compression Station at the Fairview 04 Construction area (part of the GLNG Upstream
Project), withdrew their labour, had not returned to work and there was no indication about
when the employees intended to resume work.
[4] An application for substituted service and a request for an urgent listing were
submitted with the application. The application for substituted service was granted and the
applicant was required to effect service by sending a copy of the application by email marked
to the attention of the National Secretaries of the AMWU and CFMEU, and by posting a copy
of the application on the site notice board, usually used by the Respondent to communicate
with the relevant employees. It is common ground that the Respondent served a copy of the
application, by email, on the AMWU and CFMEU at 4:42pm. The Respondent made no
attempt to give the Fluor employees notice of the time and place of the hearing.
[5] A notice of listing advising that the matter had been listed for urgent hearing
commencing at 6:15pm was sent to the Respondent, the AMWU and the CFMEU at 5:10pm
that afternoon. The listing contained an additional note informing recipients that they could
make arrangements to appear by telephone or have a witness appear by telephone by
contacting the Commission by reply email. Notice of the hearing was not provided to the
Fluor employees.
[6] The hearing of the s.418 application commenced at 6:20pm. At the outset, the
CFMEU’s representative sought an adjournment of the hearing until the following morning4
and indicated it wished to call evidence concerning the issues that gave rise to the cessation of
work that afternoon. The submission in support of the adjournment application was as
follows:
“... there is one procedural matter that I would like to raise before we commence. Having had a very
brief opportunity to consider the material that's been filed by the applicant, and also a very, very limited
opportunity to take instructions on this, it has become immediately apparent to me that there are some
genuine health and safety concerns in this particular workplace. It has become apparent to me that there
has been involvement with properly-elected and properly-trained health and safety representatives.
Given the short time frame between the filing of the application and the hearing of this matter, it is not
possible for me to adduce evidence regarding the health and safety concerns and also the role that the
health and safety representatives have played in any stoppage of work this afternoon. I say that those are
all very serious matters and legitimate considerations for your Honour in determining the application
that's before you. For those reasons, respectfully, I ask that the matter be adjourned until tomorrow
morning so that I have an opportunity to take further instructions and also adduce evidence as to what
has occurred this afternoon, before you make any determination on this application...
If the matter were to proceed tonight, effectively what you're being asked to do is to make an order that
industrial action cease without having heard from the respondent about whether or not there has in fact
been any industrial action...
I have had a restricted opportunity, given the tight time frames, to take proper instructions and to
prepare evidence for the matter tonight. My request, your Honour, is that you do not hear this matter
4 AB27 Transcript PN72
[2014] FWCFB 174
3
tonight, and issue orders that industrial actions stop, when there are genuine and real safety concerns.
My request is that the matter be stood down until the earliest opportunity, tomorrow morning.”5
[7] The adjournment application was supported by the AMWU and opposed by the
Respondent. The Senior Deputy President refused to adjourn the proceedings and gave the
following reasons:
“. . . these matters under section 418 of the Act and its predecessor legislation and various incantations
are all dealt with, in an historical sense, urgently and in an interlocutory style of proceeding. Urgency
and shortness of opportunity to develop cases in response are characteristic of the jurisdiction and have
been for a very lengthy period of time. All parties who participate in this jurisdiction are aware of those
demands and those requirements.
I also add that there has been, in this matter, in respect to the CFMEU, service of this matter at 4.42 pm
this afternoon, and there has been contact with relevant members, but, failing that, there has not been, it
is said, a sufficient opportunity to develop a case for the purposes of resisting or providing a defence to
the application that has been made. As I said, that is nothing unusual in the circumstances of a situation
where a legislative provision such as this has historically been accessed on an expedited basis and
through an interlocutory approach.
In my view the circumstances of this matter require me to hear this matter and to determine the outcome
of the application this evening. I do not see, in the circumstances, sufficient reason to stand the matter
down and to cause prejudice to the employer as a consequence. If the next day had been a rest day -
an R and R day - there might have been good reason for allowing the situation to continue for the
purpose of resolving the matter at a later time, but in this context where another shift is to start at 6
am in the morning, and there is an allegation that industrial action has happened and is likely to
manifest itself again tomorrow morning, I am of the view that I ought to bring the matter on in the
characteristic fashion of the commission, in an expedited manner, and to hear the evidence that is
able to be adduced in the circumstances.
I say also that all parties and organisations who engage in this jurisdiction are familiar with those
demands and requirements and have been for many years. I also add that organisations that are
registered under the Act have obligations in relation to furthering and protecting the interests of
their members through the very foundation of the organisation through the Registered Organisations
Act and they must be positioned and resourced and have communication arrangements that are
effective in such compliant situations as this. On that basis I intend to proceed to hear the matter
tonight, and I call the evidence.” 6
[8] After the adjournment application had been dealt with and before proceeding further,
the Respondent advised the Senior Deputy President that it no longer sought an order against
the AMWU and the CFMEU. The application for an order was confined to the Fluor
employees who were taking industrial action7. The Senior Deputy President then proceeded to
hear and determine that application.
[9] Mr Wayne Sommerville, a construction superintendant for the Respondent at the Hub
Compression Station, gave evidence by telephone in support of the application. He was asked
about the events that occurred at 2:00pm that day:
“If I could take you through what you've said in relation to the industrial issues that have occurred on
site. Could you please repeat what you've said in relation to that matter?
---Yes. At 10 to 2 today I got a call on the radio, could I come down to the cribs. So off I go. When I
come down there there's Edwin Allen from CFMEU, Adrian Webb AMWU, Bob Gladys, one of the
5 AB22 Transcript PN10-PN11, AB25 Transcript PN46 and AB26 Transcript PN58
6 AB28-29 Transcript PN77-PN80
7 AB30 Transcript PN95
[2014] FWCFB 174
4
HSRs, Guy Davis, another HSR, and Nicko - he's the new guy, I don't know his name, but I believe he
may be a co-delo with the CFMEU. We had a chat. They had a concern about the previous evening's
bus trip, where the incoming roster get out of the aeroplane, hop on the bus, come up to the camp at
Burnt Gully, where we are. Their concern was - there was an allegation that the bus driver had spent
17 hours behind the wheel, and they believed, that being the case, he would not have been in a fit and
proper state to operate that bus safely.
What's the purpose of the bus. Sorry, you said that the purpose of the bus was to have the employees
transferred from the airport to site. Was that correct?---That's correct. It goes from the airport to the
camp; it's a commuter bus, or one of a number of commuter buses that takes people to and fro,
depending on their rosters.
When you say "incoming roster" can you just confirm what you mean by that?---Yes. Tuesdays are our
fly-in and fly-out days. Tuesday was a fly-in day for what we call the red roster.
In relation to the issue they raised about the bus driver, are you aware of the bus driver?
---No, I'm not. I come in on an earlier flight, which itself was delayed but not to the extent of the guys
on the last bus. Now, I believe that it was a four-wheel drive bus, which is not the type of bus that we
normally operate here, or the camp operators have, so it may have been one brought in on short notice.
My understanding is it's not a regular bus.
Is the bus organised by Fluor?---That's correct.
The driver of the bus, how is he, if at all, connected to Fluor?---The bus drivers are normally provided
by BSS, who is the contractor who runs the camps for Fluor in this region.
During the discussion that you had with the four employees - so Edwin Allen - sorry, the five
employees, Edwin, Adrian, Bob, Guy and Nick, I believe?---Yes.
Did they raise any other issues?---Yes. They went on to say that they weren't happy with the food
arrangements which were put in place for the - the trip back being late. Some people didn't get into the
camp until around 10 o'clock. They also said that this was a range of - one of just a number of issues
they felt that hadn't been listened to, and they wanted to have a meeting with senior IR and senior
personnel, the people who would make the decisions and make things happen.
Has that meeting occurred?---Not to my knowledge. ...
And what happened at 2 o'clock?---At 2 o'clock I was still there, discussing the matter with the
representatives, and they made it abundantly clear to me that the workers would be remaining in the
sheds until this meeting was held and that they were satisfied with the resolution.
What were your observations of the employees at that point in time?---The employees - some of them
were inside their cribs. Others were out having a smoke in the smokers' hut. A couple of them were
just sitting out in the sun. Nothing untoward that you would normally see around a crib at lunchtime.
How long did this go on for?---What, the discussion I had with them?
So the employees in the crib shed?---The employees stayed in the crib sheds until around 4 o'clock,
when they went out to start to pack up for the day. They did say that they had no intention of returning
to work, but they would be prepared to go and pack up all the gear around 4 o'clock.
Has anyone from Fluor addressed the employees?---Yes. When I spoke to the guys there, and we
looked at a couple of options, and it became clear to me that we weren't going to resolve it here, I went
back up to the office and spoke to my superior, Gavin Hall, and the FMI mechanical manager was on
the line too, and I - Bruce - and what had gone on - basically what I said to you guys. Gavin came
down with me again, and then we spoke to the four guys together again.
What was the scheduled finish time for work today?---The normal finish is the boys, between about 20
to 5, quarter to 5, they generally pack up, and they packed up and had their (indistinct) - and generally
we have a close-out meeting, and at about 5 to 5 they're on the bus (indistinct).”8
[10] Mr Sommerville was also asked about the duration of the stoppage:
8 AB33-34 Transcript PN127- PN135 and AB35 Transcript PN140- PN145
[2014] FWCFB 174
5
“The Senior Deputy President: Can you ask, Ms Gamble, or make inquiry, as to what, if anything, has
been said to Mr Sommerville regarding the duration of the alleged stoppage?
Ms Gamble: Certainly.
Mr Sommerville, are you aware, or has anyone raised with you today any - has anyone said to you
anything today about the duration of the industrial action - - -?---No.
- - - or given any indication to you?---No. There was no discussion whatsoever that I heard or was
involved in that had it going any further than today. In a manner of speaking, the men put a cap on it
themselves, and they said that they were prepared to go out into the field around 4 o'clock and pack up
for the day.
Have the concerns been resolved by the company that they have raised?---Not that I'm aware of.”9
[11] Mr Sommerville was cross-examined about this issue:
“Mr Sommerville, during your discussions today there was no indication given to you of the duration of
any action, except that the workers went back to work at 4 pm and packed up their tools. Is that your
understanding of the action that you allege that has occurred since?---Yes, they did what they told me
they were going to do.
And that was going back to work at 4 pm?---They went back at 4 pm to tidy up the site, pack everything
up.”10
[12] The Senior Deputy President decided to issue an order pursuant to s.418 of the Act and
gave as his reasons for doing so, the following:
“I have an application under section 418 of the Act. As a result of hearing the evidence tonight, it
appears to me that industrial action happened today at the hub compression station at the Fairview 04
construction area.
Some 70 employees ceased to perform their work at around 2 pm this afternoon. No work of any
substance was performed for the remainder of the day, other than to pick up tools towards the end of the
ordinary working day and to attend a close-out meeting, but no other activities as were scheduled were
performed.
There have been no indications whatsoever given to the employer as to the likelihood or the timetable
for a resumption of work at 6.30 am, which is the ordinary time for commencement of work, on
Thursday, 5 September following that stoppage today.
The underlying issues ventilated by the employees through their representatives have not been resolved
and the employees' demands, particularly in respect of meeting senior officers or senior management of
the employer, have not been met either.
This is not a matter in which employees have taken industrial action on the basis of a reasonable view
about the imminent risk to their health and safety either. An important safety issue was alleged about
the transit arrangements affecting the incoming roster on Tuesday night. This is a matter in its own
right that deserves to be quickly and thoroughly investigated and addressed and its results clearly
communicated to employees and their representatives.
The allegations that were raised - I do not know whether they have substance or not - are, nonetheless,
important. They appear to have arisen from some body of knowledge. I do not know whether they
arose from hearsay or rumour. They might have sprung from some body of knowledge, but in any
event in the circumstances in which these particular travel arrangements were executed, in a situation
where flights had been delayed and travel was taking place at night, particularly on a road that is unlit
and only partly sealed, I think employees have a reasonable expectation that their employer will take
9 AB36-37 Transcript PN156- PN160
10 AB45 Transcript PN253-PN254
[2014] FWCFB 174
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those matters as matters of considerable weight, investigate them, respond to them and communicate the
outcome as quickly as possible.
That said, they were not issues that were present for the purposes of today's industrial stoppage. They
may have been issues that caused underlying anxieties about safety practices at the site, but they were
not issues in their own right that presented or provided a foundation for a reasonable view being formed
about an imminent risk to health and safety for today's purposes.
Issues of fatigue were not agitated expressly by employees today. Their focus was otherwise as to other
inconveniences and the safety issue which I have just outlined. To the extent that there were implied
concerns, there were no concerns of any demonstrated kind that came to cause 70 employees to cease
work at the site. Employees who arrived late - that is, at 10 pm the night before - were not required to
attend site, it appears, until 8 am that day, so one and a half hours after the ordinary start time at
6.30 am. One employee who arrived at the site the night before did attend, it appears, the site at
6.30 am. His personal circumstances are unknown, but I could not reasonably speculate that the
presence of that one person on site caused 70 employees to form a view that their health and safety was
at imminent risk.
In any event, if they had formed that view and had a reasonable concern, they would have reasonably
have said so and conveyed that concern as an expressed matter of issue and importance to them. They
did not do so.
It appears to me that industrial action, as I said earlier, has happened and, because the employees have
not indicated that they are returning to work and that the issues that they have raised have not been
addressed and their demands to meet with senior management of the company have not been met today,
it appears to me that industrial action is therefore pending and/or probable in those circumstances,
particularly in the context where industrial action was taken today without regard to the dispute
resolution machinery in the relevant agreement that covers the employees.
Having so found, I must make an order. In my view, the matters on foot are matters that can be
addressed in a relatively short period. It appears to me the concerns about the inbound transit
arrangements and so forth, including other inconveniences and so forth, are matters that can be
addressed in a relatively short period of time. I will make an order but I will make the order for only
one week's duration; that is, seven working days from 8.30 pm tonight only.”11
[13] The order made by the Senior Deputy President was confined to the Fluor employees.
Legislative context
[14] The order was made pursuant to s.418 of the Act, which is in the following terms:
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:
11 AB56-57 Transcript PN342-PN352
[2014] FWCFB 174
7
(a) on its own initiative; or
(b) on application by either of the following:
(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.
[15] ‘Industrial action’ is defined in s.19. Relevantly ‘industrial action’ does not include
action by an employee if :
the action was based on a reasonable concern of the employee about an imminent
risk to his or her health or safety; and
the employee did not unreasonably fail to comply with a direction of his or her
employer to perform other available work, whether at the same or another
workplace, that was safe and appropriate for the employee to perform.12
[16] Section 420 is also relevant and deals with the timeframe within which an application
for an order under s.418 is to be determined:
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.
12 Section 19(1)(c)
[2014] FWCFB 174
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The Appeal
[17] The Appellants are 23 Fluor employees who are bound by the Senior Deputy
President’s order of 4 September 2013.
[18] An appeal under s 604 of the Act is an appeal by way of rehearing and the
Commission’s powers on appeal are only exercisable if there is error on the part of the
primary decision maker.13 There is no right to appeal as an appeal may only be made with the
permission of the Commission.
[19] Shortly stated, apart from permission to appeal, the following issues are raised for
determination by the appeal:
(a) whether the Senior Deputy President’s decision to refuse to adjourn the
proceedings until the following morning constituted a denial of procedural
fairness (procedural fairness issue);
(b) whether the Senior Deputy President erred in finding that industrial action was
happening, threatened, impending or probable and whether, as a consequence,
the orders were beyond jurisdiction (the industrial action issue); and
(c) whether the Senior Deputy President erred in the form of orders made and the
service requirements specified (form of orders issue).
[20] Each of these issues is considered in turn below, although for reasons that will become
apparent we have found it unnecessary to determine the issues identified at [19](b) and (c)
above, though we make some observations about the issues relating to his Honour’s orders.
Procedural fairness issue
[21] The Commission’s obligations relating to the manner in which it must perform its
functions and exercise its powers are set out in ss.577 and 578 of the Act. Relevantly, the
Commission must act in a manner that:
is fair and just;
is quick, informal and avoids unnecessary technicalities;
is open and transparent; and
takes into account equity, good conscience and the substantial merits of the case.
[22] Absent any express provision to the contrary, Members of the Commission are bound
to act in a judicial manner and to observe procedural fairness in carrying out functions and
exercising powers under the Act.14 The requirements of procedural fairness are not prescribed
in a fixed body of rules. What is required is judicial fairness and that which is fair in one case
13 This is so because on appeal FWC has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC
(2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
14 Coal and Allied Services Pty Ltd v Lawler (2011) 192 FCR 78 at 83; see also Kioa v Minister for Immigration & Ethnic
Affairs (1985) 62 ALR 321 at 347 per Mason J; R v Commonwealth Conciliation and Arbitration Commission; Ex parte
Angliss Group (1969) 122 CLR 546; Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd (1989) 167
CLR 513; 29 IR 148
[2014] FWCFB 174
9
may be quite different to that which will be required in another.15 The obligation extends to
the exercise of powers under s. 418.16
[23] The critical question is what procedural fairness required in the circumstances of this
matter, the answer to which depends on a number of considerations including the statutory
context, the particular circumstances of the proceeding and the grounds for making the
application for an adjournment.17
[24] The statutory direction to determine s.418 applications, so far as practicable, within
two days emphasises that matters under these provisions ‘will necessarily be conducted with
expedition and the opportunity to present a case will be limited’.18 As the Full Bench said in
Construction, Forestry, Mining and Energy Union v Hooker Cockram Projects NSW Pty Ltd:
“... 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.”19
[25] Procedural fairness in the present context required the Senior Deputy President to
ensure that each party was given a reasonable opportunity to present their respective cases.
Depending on the circumstances, a refusal to grant an adjournment can constitute a failure to
give a party to proceedings a reasonable opportunity to adequately present their case.20 The
question whether a reasonable opportunity was provided to the Appellants must also be
considered in the context of the whole of the circumstances faced by the Senior Deputy
President, including the statutory scheme under which the Respondent’s application was
brought and the particular circumstances of the proceeding.
[26] As Katzmann and Rangiah JJ observed in Communications, Electrical, Electronic,
Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty
Ltd,21 the legislative scheme contained in Division 4 of Part 3-3 of the Act, seeks to balance
the need for expedition in cases of unprotected industrial action because of its capacity to
cause damage against the need to afford a reasonable opportunity to a party in relation to
whom an order might be made, to present a case in opposition to the order sought. The
scheme does not suggest expedition at all costs. Their Honours said:
“ . . . The legislation does not make the determination of the application within two days a complete
goal in itself, but requires that the period be taken into account and given weight in deciding what will
be a reasonable opportunity for a party to present its case. Expedition does not trump procedural
fairness.
15 Mobil Oil Australia Pty Ltd v Commissioner of Taxation (Cth), (1963) 113 CLR 475 at [504] per Kitto J
16 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup
Contractors Pty Ltd [2013] FCAFC 148 at [118]; Transport Worker’ Union of New South Wales v Australian Industrial
Relations Commission (2008) 166 FCR 108 at 130
17 Russell v Duke of Norfolk [1949] 1 ALLER 109 at 118 per Tucker LJ; Warrell v Fair Work Australia [2012] FCA 267 at
[8] per Perram J
18 CEPU v Abigroup Contractors Pty Ltd [2013] FWCFB 453; see also McKewin and Others v Lend Lease Project
Management and Construction (Australia) Pty Ltd [2013] FWCFB 2568 at [32]-[33]
19 [2011] FWAFB 3658 at [18]
20 Sullivan v Department of Transport (1978) 20 ALR 323 at 343 per Deane J
21 [2013] FCAFC 148
[2014] FWCFB 174
10
The reasonableness of an opportunity to present a case must also be measured against the potential
consequences to a party of an order made under s 418. The consequences may be significant. An order
under s 418 is a final order. Such an order restricts the ability of persons to engage in conduct that they
may assert is lawful conduct. It may force a person to provide labour, or it may compel an employer to
provide work to employees. If a person contravenes an order under s 418, the person is liable to the
imposition of a penalty pursuant to s 539.
An application under s 418 will almost invariably be brought at short notice. When a respondent seeks
an adjournment, it will be necessary for the Fair Work Commission to consider whether an adjournment
is necessary to give the respondent a reasonable opportunity to present his or her case and the length of
any adjournment that is required for that purpose. The relevant factors will include the extent of the
notice given, whether the application should have been anticipated and prepared for, the extent and
nature of the material served and the allegations made, the seriousness of the consequences for the
respondent, whether the applicant has delayed in bringing the application, the fact that the order under s
418 will be a final order and whether the applicant’s position can be protected by an interim order if
necessary.
On the other side, the relevant factors will include the circumstances of the industrial action, the
seriousness of its consequences for the applicant and third parties, the urgency of the application, the
legislative policy that the determination is ordinarily expected to be made within the two-day period and
any prejudice to the applicant and third parties as a result of the adjournment.
When a court considers whether a tribunal exercising a statutory power has accorded a party procedural
fairness, the court must place itself in the shoes of the tribunal to determine whether the procedure
adopted was reasonable and fair. What is reasonable and fair depends on the circumstances known to
the tribunal at the time of the exercise of the power or the further circumstances which, had it acted
reasonably and fairly, it would then have known.”22 (Citations omitted)
[27] The Appellants submit that the refusal of the adjournment was a denial of procedural
fairness to the Fluor employees and constituted jurisdictional error having regard to the
following circumstances:
(a) Fluor made an application for orders under s. 418 against the two unions, and certain
unnamed employees, together with an application for substituted service, on the afternoon
of 4 September 2013;
(b) the application for substituted service identified at ground 5(c) that a number of
employees of Fluor, the subject of the application, were members of the union(s);23
(c) the number of employees who were members of the unions was not identified, and there
was no evidence on this issue;
(d) the SDP made an order for substituted service, whereby service on the employees could
be effected by emailing the application to the national secretaries of the unions, and
putting a copy of the application on the site notice board usually used by the applicant for
communicating with the employees;24
(e) the applications were served on the CFMEU and the AMWU by email at about 4.42pm
on 4 September 2013;25
22 Ibid at [133]-[137]
23 AB16 par. 5(c)
24 AB17
25 AB24 Transcript PN 27
[2014] FWCFB 174
11
(f) there was no evidence as to whether, or when, the applications were placed upon the
notice board at the site as required by the order for substituted service;
(g) the employees, having resumed work at 4pm, finished work at about 4.45pm and were on
the bus back to camp by about 4.55pm;26
(h) there was no evidence that any of the employees were likely to have been in the vicinity
of the notice board after 4.45pm, and there was no evidence as to which employees, if
any, had actually received notice of the application;
(i) the employees were next due at work on 6.30am on 5 September 2013;27
(j) the union parties each requested that the hearing of the matter be adjourned to the
morning of 5 September 2013, so that evidence could be called on behalf of the
respondent parties;28
(k) the unions parties identified that they had not had the opportunity to obtain full
instructions from their members;29
(l) the union parties indicated that they wished to call evidence concerning safety issues
which had given rise to a cessation on work on the afternoon of 4 September 2013, and to
support the proposition that there had been no industrial action as defined in s. 19 of the
FW Act;30 and
(m) the employer resisted the application for an adjournment on the ground that there were
“real concerns that the employees will not be returning to work tomorrow....”31.
[28] The Appellants contend that the short adjournment proposed would have enabled the
application to be determined, in all probability, within 24 hours of the filing of the application
and almost certainly it could have been determined on 5 September 2013. If for some reason
this had become impracticable, the Senior Deputy President should have issued an interim
order under s.420(2). On this basis the Appellants contend that their request for an
adjournment until the following morning was eminently reasonable and well within the
contemplation of the statutory scheme. They argue that the Act did not mandate or support the
approach taken by the Senior Deputy President and that granting a short overnight
adjournment would have given the Appellants an opportunity to put their position as to the
full reasons for the cessation of work from 2pm to 4pm, and as to whether there was any
threatened, impending or probable industrial action.
[29] The Appellants also contend that the Senior Deputy President did not consider the
requirements of procedural fairness, particularly with respect to the employees, but rather
appeared to base his decision on the avoidance of possible “prejudice” to the employer – that
is, the possibility that the industrial action might be resumed the following day.
26 AB35 Transcript PN 145
27 AB24 Transcript PN33
28 AB22 Transcript PN10-PN11 and AB27 Transcript PN72
29 AB22 Transcript PN10-PN11, AB26 Transcript PN58
30 AB p.22 PN10, 11, 25, 44, 45, 46, 58
31 AB p.27 PN62
[2014] FWCFB 174
12
[30] The Respondent submits that in all the circumstances, and having regard to the scheme
of the Act, the Senior Deputy President did not deny the Appellants procedural fairness in not
granting the request for an adjournment. The Respondent points to the fact that it is well
accepted that 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.32
Indeed, the legislation carries an expectation that when employees, such as the Appellants
(whether members or non-members of an industrial organisation),33 engage in a stoppage of
work, then they need to be ready at short notice to be represented in any proceedings
regarding their conduct.34
[31] As to the particular circumstances of the proceeding the Respondent submits that the
following facts are relevant:
(a) From 2.00pm on 4 September 2013, the Appellants refused to return to productive work
for some hours following a scheduled lunch break35 and as such, prima facie industrial
action had happened on 4 September 2013.
(b) The Respondent filed a s.418 application with the Commission that was served on the
CFMEU and AMWU by email at 4.42pm on 4 September 2013, with the service email
noting that the Applicant was seeking an urgent hearing.
(c) The matter was listed before SDP Richards for hearing at 6.15pm on 4 September 2013,
which was 1 hour and 33 minutes following the application being served on the
representatives for the Appellants.
(d) In the 1 hour and 33 minutes after being served with the application and being required to
appear at the hearing, the representative of the CFMEU did have (and did take) an
opportunity to speak to relevant workers on site that afternoon to obtain instructions.36
(e) However, despite the fact that the CFMEU representative was informed that an urgent
hearing was being sought, and that such hearing may require evidence to be given to
provide the Commission with the Appellants’ view of the action, the CFMEU
representative did not ask the relevant workers who otherwise provided instructions to
him, whether they were prepared to provide evidence at the hearing.37
(f) The AMWU did not assert an inability to call witnesses but did assert that their
instructions were “limited”
[32] The Respondent submits that the Appellant’s contention that they had no opportunity
to call evidence and no reasonable opportunity to put any case in opposition to the orders is
wrong and should be rejected.38 The Respondent contends that the Appellants chose not to
avail themselves of the opportunity provided. An outcome of that election was that the
Appellants deprived themselves of the opportunity which was provided by the Commission to
32 CEPU and CFMEU v Abigroup Contractors Pty Ltd [2013] FWCFB 453 at [30] and McKewin & Ors v Lend Lease
Project Management & Construction (Australia) Pty Ltd [2013] FWCFB 2568 at [32]
33 McKewin & Ors v Lend Lease Project Management & Construction (Australia) Pty Ltd [2013] FWCFB 2568 at [33]
34 CEPU and CFMEU v Abigroup Contractors Pty Ltd [2013] FWCFB 453 at [30]
35 AB35 Transcript PN140-PN143
36 AB25 Transcript PN45
37 AB26 Transcript PN56; This statement is said to explain the statement made at AB25 Transcript PN45, that the
‘respondent is not in a position to call evidence’. That was a position largely of the appellants’ representatives own
making.
38 Submissions of the Appellants paragraph [13]
[2014] FWCFB 174
13
give relevant evidence to the hearing. The Respondent says that it was clear that on 4
September 2013, the Appellants (or some of them) communicated with their representative,
the CFMEU, between the service of the application and the hearing, and had the opportunity
to provide instructions and give evidence at the hearing. The CFMEU as representative of the
Appellants chose not to lead evidence from the Appellants and did not ask the Appellants
whether they were prepared to give evidence. Consequently it was the Appellants who
deprived themselves of the opportunity to give evidence by the election their representative
made, rather than by any action of the Senior Deputy President.
[33] In our view, the Respondent’s submissions overly simplify what occurred. The
CFMEU’s primary submission before the Senior Deputy President in support of its
adjournment application was that it had had a very limited opportunity to take instructions but
that those limited instructions indicated that there was a genuine health and safety concern at
the workplace39 and that the CFMEU wished to adduce evidence about that matter and about
the role played by health and safety representatives in the stoppage of work. 40
[34] Further, as it had only a restricted opportunity to take proper instructions and to
prepare evidence (some 90 minutes between the service of the application and the
commencement of the hearing), the CFMEU submitted that it should be granted a short
adjournment until the earliest opportunity the next morning to enable it to properly prepare its
case.41 In short, it was submitted that, given the brief period of time between service of the
application and the hearing, it was not possible for the CFMEU to adduce evidence directed to
the health and safety concerns which would form the basis of a submission that the stoppage
of work that had occurred on 4 September 2013 was not industrial action as defined in the
Act42. Self evidently, so far as the 23 Appellants are concerned, this submission had some
merit.
[35] In order to invoke the exception to the meaning of industrial action set out in
s.19(2)(c) of the Act, it would have been necessary to call each of the Appellants who relied
upon the exception, to give evidence that that Appellant had a reasonable concern about an
imminent risk to his or her personal health or safety. The limited time that was available to the
CFMEU between service of the application and the commencement of the hearing did not
enable the CFMEU to seek instructions from the Appellants about these matters. That the
CFMEU was able to take limited instructions from some individuals and did not ask those
individuals whether they were prepared to give evidence that evening, does not diminish this
fact. Nor does the fact that the CFMEU’s representative was able to cross examine the
Respondent’s witness mean that the Appellants were given a reasonable opportunity to
present their case. By the time the CFMEU received notice of the application or several
minutes thereafter, the Appellants had left the workplace and were on a bus returning to their
accommodation camp. At 6:53pm on 4 September 2013, some 30 minutes after the hearing of
the application had begun, a copy of the Respondent’s application for orders was in the
process of being posted on the camp notice board which is located at the front of the camp at
the administration office. 43 Notice of the hearing was not given to the Appellants.
39 AB 22 Transcript PN10
40 AB 22 Transcript PN 11; AB 25 Transcript PN 44
41 AB 26 Transcript PN 52, PN 58
42 AB 22 Transcript PN 11; AB 24 Transcript PN 25; AB 25 Transcript PN 46
43 Exhibit R1 at [7] and [9]
[2014] FWCFB 174
14
[36] In our view the time between service of the application and the commencement of the
hearing was insufficient to allow the Appellants, through their representative (the CFMEU) to
seek necessary instructions from all relevant potential witnesses, to assess the allegations
made against the Appellants and to determine which evidence it should call. This was all the
more necessary since no allegation was made that the CFMEU organised or was responsible
for the stoppage or had any knowledge of the industrial action prior to being informed of the
Respondent’s application. True it is that the application made was urgent and that unprotected
industrial action had the potential to cause damage and delay to the Respondent’s project but
procedural fairness is not to be set aside because of such exigencies. A short adjournment
until the next morning was warranted in the circumstances and should have been granted.
Such an adjournment would not have defeated the operation of s.420. The application could
still have been determined well within the statutory timeframe of two days. In the
circumstances the refusal by the Senior Deputy President to grant the adjournment denied the
Appellants a reasonable opportunity to present their case and consequently was a denial of
procedural fairness.
[37] Further, the Respondent gave notice of the application to the 23 Appellants pursuant to
an order of substituted service some 30 minutes after the hearing had commenced. It did not
give or attempt to give the 23 Appellants notice of the hearing. A failure to provide a party
with notice of the time and place of a hearing denies the party the opportunity to present his or
her case.44 In circumstances where ultimately no orders were sought against the CFMEU and
where an order was sought against Fluor Employees irrespective of whether they were
members of the CFMEU or not, the failure to provide the Appellants with notice of the
hearing was also a denial of procedural fairness.
[38] The Respondent also submitted that the essence of the evidence which the CFMEU
sought to put before the Commission after the adjournment was canvassed in the cross
examination of the Respondent’s witness. This submission goes to the question whether relief
should be granted not whether there has been a denial of procedural fairness. The gravamen
of this submission is that had the adjournment been granted and the CFMEU’s evidence put
before the Commission it would not have affected the decision and order of the Senior Deputy
President. We are not persuaded that this is necessarily so. The Appellants need not establish
that the evidence that would have been adduced by the CFMEU if an adjournment had been
granted would have affected the decision, they need only establish that the failure to grant an
adjournment deprived them of the possibility of a successful outcome.45 The CFMEU sought
an adjournment to enable it to call evidence going to two discrete points, namely the existence
of a reasonable concern about an imminent risk to health and safety and the role of health and
safety representatives in the stoppage, both or either of which could possibly have led to a
different result and we are not able to exclude that possibility in this case. As the High Court
said in Stead v State Insurance Commission:46
“...The general principle applicable in the present circumstances was well expressed by the English
Court of Appeal (Denning, Romer and Parker L.JJ.) in Jones v. National Coal Board (11), in these
terms:
44 R v North; Ex parte Oakley (1927) 1 KB 491 at 502; Edghill v Kellow-Falkner Motor Pty Ltd [2000] AIRC 10 at [51]-[58]
45 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup
Contractors Pty Ltd [2013] FCAFC 148 at [187]
46 (1986) 161 CLR 141 at 145-146
[2014] FWCFB 174
15
“There is one thing to which everyone in this country is entitled, and that is a fair trial at which
he can put his case properly before the judge...No cause is lost until the judge has found it so;
and he cannot find it without a fair trial, nor can we affirm it.”
That general principle is, however, subject to an important qualification which Bollen J. Plainly had in
mind in identifying the practical question as being: Would further information possibly have made any
difference? That qualification is that an appellate court will not order a new trial if it would inevitably
result in the making of the same order as that made by the primary judge at the first trial. An order for a
new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved
party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the
opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the
question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to
order a new trial.
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on
an issue of fact, especially when the issue is whether the evidence of a particular witness should be
accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of
natural justice could have made no difference.
It is no easy task for a Court of Appeal to satisfy itself that what appears on its face to have been a
denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And
this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a
witness at the trial...”
[39] In the circumstances we think the Appellants are entitled to relief.
The Industrial Action issue
[40] The Appellants essential point under this ground of appeal is that there was no
evidence before the Senior Deputy President upon which he could base a finding of
jurisdictional fact that industrial action by the Appellant’s was ‘impending’ or ‘probable’
could be made. The Appellants also submitted (although it did so under the form of orders
issue) that no industrial action was happening at the time that the order was made, and
consequently the Senior Deputy President did not have jurisdiction to make any order directed
to the Appellants that they must “stop all industrial action that is happening at the time the
order comes into effect”.
[41] Given our conclusions on the procedural fairness issue, it is unnecessary for us to
decide the industrial action issue.
Form of orders issues
[42] The Appellants alleged a number of errors in respect of the order made by the Senior
Deputy President. Given our conclusions on the procedural fairness issue, it is also
unnecessary for us to decide those matters. We do however make the following observations.
[43] Clause 3.2 of the Senior Deputy President’s order provided as follows:
“Each of the Employees must be available for work, and perform work as required by
the Applicant.”
[2014] FWCFB 174
16
[44] In Transport Workers’ Union of New South Wales v Australian Industrial Relations
Commission and Others47 a Full Federal Court considered, inter alia, the validity of a clause
in an order made under s.496 of the Workplace Relations Act 1996, which was caste similar
terms to clause 3.2. The majority said of that clause, the following:
“The second clause of para 4(b) of the order may well be beyond the power of the Commission.
Depending on the nature of the industrial action, and the terms of a particular industrial agreement, it
might be within the ambit of an order that industrial action stop or not occur to order that employees
perform work in accordance with particular provisions of that agreement. A case in which the industrial
action consists of a ban on the performance of particular tasks, the performance of which is required by
the agreement, comes to mind as an example. Such cases would be relatively rare, since industrial
agreements usually consist predominantly of terms prescribing the remuneration for work, and the
conditions on which it is to be performed, the assumption being that, if work is not performed, there will
be no entitlement to the remuneration prescribed and the conditions prescribed will be inapplicable. A
possible case is a ban on the performance of overtime, when the agreement requires that employees
work reasonable overtime, although the difficulty of determining in the context of a penalty proceeding
whether a particular employee has refused to respond affirmatively to a particular request to work
overtime in breach of the order, or because the request is not reasonable, is obvious. It is difficult to see
how an order requiring each employee to perform work as required by his or her employer, in
accordance with every term of a collective agreement, could ever be regarded as necessary for,
incidental to or consequential upon the making of an order that industrial action stop, not occur or not
be organised. An order of this nature has the potential to expose an employee to a financial penalty for
failing to comply with some requirement of an employer, irrespective of whether the requirement is
reasonable or whether it is a requirement to do something that would normally be expected of the
particular employee in the position in which he or she has been engaged. The making of an order
requiring work in accordance with the terms of an industrial agreement or award would appear to
require an examination of the terms of that agreement, the selection of those applicable, and a
consideration of the duties of each employee in relation to those terms.”48
[45] More recently in Maritime Union of Australia v Patrick Stevedores Holdings Pty
Limited 49 a Full Bench of this Commission determined that a similarly worded clause to that
in issue in this appeal, in an order under s.418 of the Act, was clearly beyond power. The Full
Bench said:
“The obligation in clause 4.5(b) of the Order that each Port Botany Employee “be available for work,
and perform work, as required by Patrick” is clearly beyond power. It extends well beyond engagement
in industrial action, in that the general obligation it imposes, breach of which may expose employees to
the imposition of a civil penalty, is unqualified by any reference to Patrick’s requirements having to be
lawful and reasonable.”50
[46] It would seem clearly to be the case that the Senior Deputy President was in error by
including clause 3.2 in the order that he made.
[47] We note that the Respondent by its application sought an order containing the terms of
clause 3.2 of the ultimate order51. A party, particularly one that is represented by an
experienced practitioner, applying for an order should not seek to include a term in any order
that is clearly beyond power or is contrary to authority without being prepared to alert the
presiding Member to the contrary authority, canvassing with the member the doubt as to
47 (2008) 166 FCR 108
48 Ibid at 132 per Gray and North JJ at 132
49 [2013] FWCFB 7736
50 Ibid at [48]
51 See clause 3.3 of the draft order prepared by the respondent and attached to its application for an order under section 418 at
AB10
[2014] FWCFB 174
17
power, or being prepared to argue that the contrary authority was incorrectly decided or is
otherwise distinguishable. To do otherwise will invariably lead the Member into error.
[48] In this context it is important to appreciate that legal representatives have a duty to
bring all relevant authorities to the attention of the Commission, whether or not they assist the
party they represent.52 A lawyer’s duty to the Commission is paramount and supercedes a
lawyer’s duties to their client.53 A grant of permission to appear pursuant to s.596(1) of the
Act is based upon a presumption that the representative to whom leave is granted will conduct
themselves with probity, candour and honesty.54 The duty of advocates in that regard has been
long recognised by the Commission. As a Full Bench noted in AFMEPKIU v Energy
Developments Ltd:
“It is a long standing principle of this Commission and its predecessors that there is a duty on
persons appearing before the Commission to ensure that there is full and frank disclosure of all
matters which are relevant to the proper determination of the matter before the Commission
(see Municipal Officers Association of Australia v City of Greater Brisbane (1927) 25 CAR
932 at 935 per Lukis J.)”55
[49] In the present context seeking an order which is contrary to authority without alerting
the presiding Member to the contrary authority is inconsistent with a legal practitioner’s duty
to the Commission. Furthermore, the Legal Profession (Solicitors) Rule 2007 (Qld) provide:
“14.6 A solicitor must, at the appropriate time in the hearing of the case and if the
court has not yet been so informed, inform the court of:
14.6.1 any binding authority;
14.6.2 any authority decided by an intermediate court of appeal in Australia;
14.6.3 any authority on the same or materially similar legislation as that in
question in the case, including any authority decided at first instance in the
Federal Court or a Supreme Court, or by superior appellate courts, which has
not been disapproved; or
14.6.4 any applicable legislation;
of which the solicitor is aware, and which the solicitor has reasonable grounds to
believe to be directly in point, against the client’s case.”56
Permission to appeal
[50] Section 604 provides:
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
52 Glebe Sugar Refining Co v Greenock Ports & Harbours Trustees [1921] WN 85 at 86; see generally 1pp D (1998)
Lawyer’s Duties to the Court, 114 LQR 63
53 Giannelli v Wraith 91998) 165 CLR 543 at 556 per Mason J; Council of the Queensland Law Society Inc v Wright [2001]
QCA 58
54 Oram v Derby Gem Pty Ltd [2004] 134 IR 379 at [62]
55 AIRC Print M9753, 1 March 1996 per Ross VP, Maher DP and McDonald C
56 Rule 14.6; Note also “court” is defined under the Rule to include “an industrial tribunal”
[2014] FWCFB 174
18
(b) made by the General Manager (including a delegate of the General Manager) under the
Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC
is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see
section 400).
(3) A person may appeal the decision by applying to the FWC.
[51] The Explanatory Memorandum to what is now s.604 states:
“2327. The concept of permission in the Bill is intended to replace the concept of leave currently in the
WR Act, using more modern terminology. Other than in the special case of subclause 604(2), the
grounds for granting permission to appeal are not specified. It is intended that this would call up all the
existing jurisprudence about granting leave to appeal – see e.g., Construction, Forestry, Mining and
Energy Union v Australian Industrial Relations Commission (1998) 89 FCR 200; and Wan v Australian
Industrial Relations Commission (2001) 116 FCR 481.
2328. Subject to the appellant demonstrating an arguable case of appealable error, it is intended that
FWA should have a broad discretion as to the circumstances in which it can grant permission to appeal.
Some examples of considerations which have traditionally been adopted in granting leave and which
would therefore usually be treated as justifying the grant of permission to appeal include:
that the decision is attended with sufficient doubt to warrant its reconsideration; and
that substantial injustice may result if leave is refused.
2329. However, subclause 604(2) requires FWA to grant permission to appeal the decision if FWA is
satisfied that it is in the public interest to do so.”
[52] In Wan the Full Federal Court made the following observation regarding the operation
of s.45 of the then Workplace Relations Act 1996 (the WR Act), a statutory predecessor to
s.604:
“Section 45 does not specify grounds for granting leave to appeal other than in the special case referred
to in s 45(2). As we have previously observed, grounds traditionally adopted in granting leave have
included considerations such as whether the decision is attended with sufficient doubt to warrant its
reconsideration and whether substantial injustice may result if leave is refused. These “grounds” should
not be seen as fetters upon the broad discretion conferred by s 45(1), but as examples of circumstances
which will usually be treated as justifying the grant of leave. It will rarely, if ever, be appropriate to
grant leave unless an arguable case of appealable error is demonstrated. This is so simply because an
appeal cannot succeed in the absence of appealable error.”57
[53] Given the similarities between s.45 of the WR Act and s.604 of the Act the
observations in Wan remain apposite.
[54] The Appellants submit that it is in the public interest that permission to appeal be
granted:
“It is fundamental to the proper administration of the FW Act that the FWC exercise its
jurisdiction and act within its jurisdiction. Generally speaking where jurisdictional error is
alleged, permission to appeal will be granted.
57 (2001) 116 FCR 481 at [30]
[2014] FWCFB 174
19
It is in the public interest to correct error where orders have been made without jurisdiction
where those orders carry the potential for the imposition of civil penalties for unspecified
individuals.
There is a public interest in correcting error, and in establishing the correct principles to apply
in considering the requirements of procedural fairness in the context of Part 3-3 of Division 4
of the FW Act.”58
[55] The Respondent says that permission to appeal should be refused as the public interest
is not enlivened and nor is there sufficient doubt to warrant reconsideration of the Senior
Deputy President’s order. It is submitted that permission should be refused having regard to
the following matters:
(a) the decision in this matter stands upon its own particular facts, which do not raise any
question of precedent; and
(b) the Order has long since expired without any breach thereof being alleged, and with no
prospect of enforcement action being required; and
(c) there are currently no outstanding issues between the parties to which the order may be
relevant.59
[56] A denial of procedural fairness is a jurisdictional error. While we accept that the order
made by the Senior Deputy President has expired and the prospect of any enforcement action
is remote, this fact is not outweighed by the need correct the procedural fairness error made
by the Senior Deputy President and to reinforce the need to properly balance the need for
expedition against the right of a party to be given a reasonable opportunity to present a case in
applications of this kind. We are satisfied that it is in the public interest to grant permission to
appeal and we do so.
Disposition of appeal
We grant permission to appeal, we uphold the appeal and we quash the order made by the
Senior Deputy President in PR541318.
Rehearing
It is common ground that the Appellants and other Fluor employees bound by the order made
by the Senior Deputy President returned to work without further stoppages or other industrial
action, that the outstanding issues had been resolved or are not being agitated and that there
have not been any further stoppages or other industrial action. There is no suggestion of any
threat of any further stoppages or industrial action. Section 418(1) confers jurisdiction on the
Commission to make an order in relation to apparent unprotected industrial action that:
(a) is happening; or
(b) is threatened, impending or probable; or
(c) is being organised;
58 Appellants’ submissions at [52]-[54]
59 Respondent’s outline of submissions at [4]
[2014] FWCFB 174
20
As there is no evidence before us that any unprotected industrial action is happening,
threatened, impending of probable, or that it is being organised, no order may be made and the
Respondent’s application is dismissed.
PRESIDENT
Appearances:
C.Howell of Counsel for the Appellants
A. Herbert of Counsel for the Respondent
Hearing details:
2013.
Brisbane.
3 December.
Printed by authority of the Commonwealth Government Printer
Price code C, PR546581
