1
Fair Work Act 2009
s.604 - Appeal of decisions
Lend Lease Project Management and Construction (Australia) Pty Limited
v
Construction, Forestry, Mining and Energy Union
(C2015/1396)
VICE PRESIDENT HATCHER SYDNEY, 27 JANUARY 2015
Appeal against decision [2015] FWC 257]] and Order [PR560380] of Deputy President
Lawrence at Sydney on 22 January 2015 in matter number C2014/6296.
[1] Lend Lease Project Management and Construction (Australia) Pty Limited (Appellant)
has appealed a decision of Deputy President Lawrence issued on 22 January 20151 (Decision)
and an accompanying order2 (Order) issued at the same time. The Decision and the Order
constituted the outcome of a dispute resolution process conducted by the Deputy President
pursuant to clause 19, Conflict Resolution, of the Lend Lease Project Management &
Construction/CFMEU Joint Development Agreement Mark 8 2012-16. The dispute in
question concerned whether Mr Peter Genovese, a Construction, Forestry, Mining and Energy
Union (CFMEU) delegate who has suffered from a psychological illness for some months but
has now been cleared by medical practitioners to return to work under a graduated return to
work plan, should return to his former worksite at the Barangaroo Project in central Sydney.
In the Order, the Deputy President ordered that “Mr Genovese be returned to his normal
duties/role at the Lend Lease Barangaroo site, in accordance with the return to work plan
drafted by Ms Irene Bagia dated 10 October 2014”. The Order operates from Tuesday 27
January 2015. However, because the return to work plan envisages Mr Genovese initially
returning to work only on two days per week, specifically Wednesday and Thursday, the
practical effect of the order is to require Mr Genovese to be returned to his duties effective
from Wednesday 28 January 2015.
[2] The Appellant seeks that the Order be stayed pending the hearing and determination of
its appeal, and that is the matter currently before me. It is necessary to state at the outset that I
consider this appeal is one that should appropriately be assigned an expedited hearing. To that
end, arrangements have been made for the hearing of the appeal to occur on Monday 2
February 2015 before a Full Bench of the Commission. I further consider it appropriate that
the Full Bench itself should determine whether there should be a stay of the Order in
operation from the date of the hearing to the date when the Full Bench’s decision is issued. I
therefore propose to consider myself only whether the Order should be stayed until the
hearing of the appeal on 2 February 2015, at which time the Full Bench can revisit the matter
1 [2015] FWC 257
2 PR560380
[2015] FWC 646
DECISION
AUSTRALIA FairWork Commission
[2015] FWC 646
2
with the benefit of the parties’ full submissions on the appeal. In practical terms, that reduces
the issue before me to the question of whether Mr Genovese should be permitted to return to
work at the Barangaroo site under the terms of the return to work plan on Wednesday 28
January 2015 and Thursday 29 January 2015 in accordance with the Order.
[3] The principles applicable to the consideration of a stay application are well-
established.3 The Commission must positively be satisfied as to two matters in order for a stay
application to be successful. The first is that the Commission is satisfied that there is an
arguable case with some reasonable prospects of success in respect of both the question of
permission to appeal and the substantive merits of the appeal. In determining that first
consideration, the assessment made by the Commission is necessarily preliminary in nature in
that it is based on an analysis of the appeal with the benefit of only limited argument and is of
course not intended to foreclose the outcome of the appeal. The second consideration is that
the Commission must positively be satisfied that the balance of convenience weighs in favour
of the decision and/or order under appeal being stayed.
[4] It is not necessary for present purposes for me to consider the first issue of whether the
Appellant has demonstrated that it has an arguable case with some reasonable prospects of
success because, on the second issue, I am not positively satisfied that the balance of
convenience weighs in favour of the Order being stayed prior to the hearing of the appeal on 2
February 2015.
[5] The Appellant relied on the following matters to support the grant of the stay (noting
that its submissions in this respect related to an application for a full stay until its appeal was
determined, not to the limited stay which I propose to consider pending the Full Bench
dealing with the matter):
(1) Unless the operation of the Order was stayed, the Appellant’s authority to
manage return to work safety risks was undermined. In this respect, the
Appellant referred to the evidence of Mr Murray Coleman, its Managing
Director, given at first instance. Mr Coleman was not satisfied that a return to
work to Barangaroo at the current time would be safe or durable because the
size and scale of the project, together with pressures from a safety, time and
quality perspective, could create a “pressure cooker environment” which was
“likely to adversely impact Peter’s health and safety (and possibly that of
others) as well as the success and longevity of his return to work...”.
(2) The CFMEU (which represented Mr Genovese and opposed the grant of a
stay) did not and could not offer any undertaking which indemnified Mr
Coleman or the Appellant in relation to their obligations under health and
safety laws.
(3) The Appellant was prepared to pay Mr Genovese as if he were working at the
Barangaroo site for the duration of any stay order, meaning that he would
suffer no prejudice if the stay was granted.
[6] I am not positively satisfied that the above matters demonstrate that the balance of
convenience favours the granting of a stay until 2 February 2015 for the following reasons:
3 See Edghill v Kellow-Falkiner Motors Pty Ltd [2000] AIRC 785, Print S2639 at [5]
[2015] FWC 646
3
(1) Only two working days are involved, and based on the information provided to
me at the stay hearing, it appears that much of those two days will be spent re-
inducting Mr Genovese to the site and taking other steps to re-integrate him
into the changed working environment. It is unlikely in those circumstances
that any challenging dispute will arise in that period which Mr Genovese will
have to deal with, and if it does, it can be referred to another delegate.
(2) Mr Genovese has given up his role as Chair of the site Safety Committee, and
under the return to work plan any complex disputes are to be referred to a
fellow delegate. This further diminishes any chance that Mr Genovese will be
confronted by any stressful matter during the two days in question.
(3) I am not satisfied that the operation of the Order until the hearing will have any
implications that extend beyond the health and safety of Mr Genovese alone.
In the Decision, the Deputy President found that “There is no evidence that a
return to work at Barangaroo will have a negative effect on industrial harmony
on the site”4, and that finding is not challenged in the appeal. Beyond Mr
Coleman’s assertion that Mr Genovese’s return to work might “possibly” affect
the health and safety of others, I was not taken to any evidence which identifies
any wider health and safety implications, and I do not presently understand
from the submissions made to this point how there could be any such wider
implications.
(4) The medical evidence to which I was taken favoured Mr Genovese being
returned to the Barangaroo site.
[7] Accordingly I decline to grant a stay order for the period extending up until the
hearing of the appeal on 2 February 2015. I emphasise that the conclusions I have stated
above are only concerned with that limited period, and are not to be taken as expressing a
view as to whether a stay should be granted for the period from the hearing of the appeal until
such time as the Full Bench can issue its decision on the appeal. As earlier indicated, it will be
open to the Appellant to revisit its stay application during the hearing before the Full Bench.
VICE PRESIDENT
4 Decision at [64](f)
OF THE FAIR WORK MISSION THE
[2015] FWC 646
4
Appearances:
F. Parry QC and R. Dalton of counsels, for the Appellant
I. Latham of counsel with T. McCauley, solicitor for the Respondent.
Hearing details:
2015.
Sydney:
27 January.
Printed by authority of the Commonwealth Government Printer
Price code A, PR560448
