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Fair Work Act 2009
s.508 - Application to restrict rights if organisation or official has misused permit rights
Fair Work Commission
(RE2013/1710)
SENIOR DEPUTY PRESIDENT
O'CALLAGHAN
ADELAIDE, 16 DECEMBER 2013
Possible misuse of entry rights on 30 October 2013 - s.508 - jurisdiction - natural justice.
[1] This decision, now edited, follows a decision issued in the course of proceedings on
10 December 2013 relative to a matter commenced on the Fair Work Commission's own
initiative, pursuant to s.508 of the Fair Work Act 2009 (the FW Act). This decision has been
issued at the request of the Construction, Forestry, Mining and Energy Union (CFMEU)
which is appearing in this matter.
[2] In the proceedings on 10 December 2013 Mr Pearce, of counsel represented the
CFMEU, Mr Earls of the Master Builders Association of SA represented Lend Lease Building
Contractors Pty Ltd (Lend Lease) and Mr Roder, of counsel represented Fair Work Building
and Construction (FWB&C).
[3] Section 508 states:
“508 FWC may restrict rights if organisation or official has misused rights
(1) The FWC may restrict the rights that are exercisable under this Part by an
organisation, or officials of an organisation, if the FWC is satisfied that the
organisation, or an official of the organisation, has misused those rights.
Note: Only a Vice President, Deputy President or Full Bench may take action under
this subsection (see subsections 612(2) and 615(1)).
(2) The action that the FWC may take under subsection (1) includes the following:
(a) imposing conditions on entry permits;
(b) suspending entry permits;
(c) revoking entry permits;
[2013] FWC 9860[Note: An appeal pursuant to s.604 (C2014/2631) was
lodged against this decision - refer to Full Bench decision dated 24 April
2014 [[2014] FWCFB 2709] for result of appeal.]
PROCEDURAL DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2014FWCFB2709.htm
[2013] FWC 9860
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(d) requiring some or all of the entry permits that might in future be issued in relation
to the organisation to be issued subject to specified conditions;
(e) banning, for a specified period, the issue of entry permits in relation to the
organisation, either generally or to specified persons;
(f) making any order it considers appropriate.
(3) The FWC may take action under subsection (1):
(a) on its own initiative; or
(b) on application by an inspector.
(4) Without limiting subsection (1), an official misuses rights exercisable under this
Part if:
(a) the official exercises those rights repeatedly with the intention or with the effect of
hindering, obstructing or otherwise harassing an occupier or employer; or
(b) in exercising a right under Subdivision B of Division 2 of this Part, the official
encourages a person to become a member of an organisation and does so in a way that
is unduly disruptive:
(i) because the exercise of the right is excessive in the circumstances; or
(ii) for some other reason.”
[4] Consideration of this section was commenced following evidence provided in the
course of a s.418 application lodged by Lend Lease. Additional material has since been
provided by both Lend Lease and FWB&C.
[5] The decision deals with two discrete objections raised by the CFMEU to the further
conduct of these proceedings. In reaching a conclusion on the CFMEU's submissions in
relation to these objections I have had regard to each of the authorities to which I have been
referred.
[6] The CFMEU has submitted that no further action should be taken in this matter
pursuant to s.508 on the basis that, firstly, there is no jurisdiction to undertake what it
describes as a preliminary investigation into whether to initiate action under that section, and
that there is no specific proposal to found such an action.
[7] I am not persuaded that there are any such jurisdictional impediments to the matter
proceeding or that the proceedings represent a preliminary investigation. Section 508(1)
establishes the jurisdictional facts necessary for the FWC to have the discretion to restrict the
rights able to be exercised under Part 3-4 of the FW Act by an organisation, or by officials of
that organisation. Section 50 (2) simply exemplifies and details the actions which the FWC
may take if such a jurisdictional fact or facts are made out. Section 508(3) provides that this
section may be activated or commenced through either an application by an inspector or on
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the Commission’s own initiative. Section 508(4) simply provides examples of misuse in a
non-definitive sense.
[8] My concerns about behaviour which was the subject of unchallenged evidence in the
s.418 application made by Lend Lease on 31 October 2013 were specified in the proceedings
on 31 October and 1 November 2013 and, in my decision1 of 1 November 2013. I further
detailed those concerns in directions of 11 November 2013 and in a decision2 of 27 November
2013, where I dealt with an argument associated with apprehended bias. In that decision and
directions issued on the same day, I provided an explanation of my expanded concerns based
on the additional material subsequently provided to me.
[9] I am not satisfied that s.508 limits the FWC‘s capacity to initiate actions to
circumstances which are detailed in a particular application. As I indicated in my decision of
27 November 2013, the FWC very rarely invokes the capacity to act of its own motion under
s.508. I have adopted the position that such an action of this nature should only be taken in
circumstances where the material before a particular Member of the FWC is such that it gives
rise to a substantial concern about the possible misuse of entry rights.
[10] The enquiry that must then ensue must go to establishing whether, on the evidence
then presented to the Commission, one or more concerns are made out such that misuse of
entry rights is established. Hence, I consider that it was incumbent on the FWC to articulate
the concerns that gave rise to the commencement of the s.508 action so that the parties could
be aware of the issues to be addressed. The advice provided to the parties must strike a
balance between the expression of the concerns giving rise to the s.508 proceedings and the
invitation to fairly consider evidence about those concerns.
[11] The absence of regulations or rules relating to the operation of this section is not
relevant to the issue of jurisdiction. In procedural terms, it is simply incumbent on the FWC to
formulate an approach which balances the dictates of speed and efficiency with those of
fairness and equity. To read s.508 as requiring that the jurisdiction to invite submissions and
evidence about misuse of entry rights is limited to situations where the FWC has formed a
concluded view about misuse, would itself represent a denial of natural justice.
[12] Section 508 and, indeed, other sections of the FW Act which empower the FWC to act
on its own initiative may be applied so that they have about them, an element of inquiry. It is
only if this inquiry, on the evidence put to the FWC, establishes misuse of the nature
addressed in this section, that the Commission is then empowered to take action. To deprive
the FWC of that capacity, or the capacity to embark on such an inquiry, or to require it to
articulate specific assertions would be to render this section effectively inoperative. It is
simply the case that the evidence which may, or may not be put to me, will establish whether
the jurisdiction to act under s.508 exists.
[13] As a consequence, I concluded that there was no jurisdictional barrier to the matter
proceeding.
[14] Secondly, the CFMEU argued that the proceedings represented a denial of natural
justice. Again, I do not accept this position. The basis for the proceedings has been clearly
articulated. In part, this basis was relied upon in the CFMEU's earlier argument that I should
exclude myself from further consideration of the matter because of an apprehended bias. The
[2013] FWC 9860
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directions issued to date have put the parties on notice about the proceedings in matters of
concern to me. In this respect I am satisfied that natural justice requirements have been met.
[15] The material before me to date identifies certain unnamed individuals who are asserted
to be officials or employees, or representatives of the CFMEU. In some cases, this is a matter
of public record and I may take note of it accordingly.
[16] The CFMEU advice is that it does not represent those persons and that Mr Pearce only
represents the CFMEU. Some of the persons referenced in the material before me are not
identified by name and the material indicates that in some cases they have not been prepared
to identify themselves. This may, or may not be established on the evidence that is put to me.
[17] To the extent that the evidence enables conclusions about individuals in terms of the
names of their activities is a matter for later consideration in the context of the obligation on
the FWC to ensure procedural fairness. Consequently, to ensure a procedurally fair approach
to all of the parties, including potentially affected individuals, I confirmed my intention to
reach conclusions about the extent to which the circumstances in s.508(1) are established,
before inviting the parties to consider what, if any, form of order should then be made. This
approach may extend to proposed orders about which submissions may later be made. It may
also extend to specific invitations to individuals to appear and make submissions about the
appropriate form of orders being countenanced.
[18] For these reasons, I determined that the matter should proceed on 10 December 2013. I
note that I subsequently refused a request made by the CFMEU for the matter to be further
adjourned so as to enable consideration of a potential appeal relative to this procedural
decision.
Appearances:
M Pearce counsel for the Construction, Forestry, Mining and Energy Union.
T Earls for Lend Lease Building Contractors Pty Ltd.
M Roder counsel for Fair Work Building and Construction.
Hearing details:
2013.
Adelaide:
December 10.
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ORK COMMISSION OF FAIR AUSTRALIA THE SEND SENIOR DEPUTY PRESIDENT
[2013] FWC 9860
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1 [2013] FWC 8659
2 [2013] FWC 9343
