[2015] FWCFB 799
The attached document replaces the document previously issued with the above code on 3
February 2015.
The document has been edited to correct a typographical error in the appearances by replacing
the word “counsels” with “counsel”.
Catherine Taylor
Associate to Vice President Hatcher
Dated 3 February 2015
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
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT
DEPUTY PRESIDENT SAMS
SYDNEY, 3 FEBRUARY 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) of the same date. The Decision and the Order constituted
the arbitrated 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 (Agreement). 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 his role as delegate. 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 2015”. The Order
commenced operation on Tuesday 27 January 2015, although the first day of work under the
return to work plan once the Order took effect was on Wednesday 28 January 2015.
[2] In its notice of appeal, the Appellant sought among other things that the Order be
stayed pending the hearing and determination of its appeal. That stay application initially
came before the Commission (Vice President Hatcher) on 27 January 2015. In a decision
issued that day3, the Vice President determined that there should be an expedited hearing of
the appeal on 2 February 2014, and that the Full Bench hearing the appeal should at that
hearing determine whether there should be any stay of the Order operating from the date of
the hearing to the time at which the Full Bench issued its decision. The Vice President
declined to grant a stay of the Order to operate until the date of the hearing, finding that he
was not positively satisfied that the balance of convenience favoured the grant of a stay.
1 [2015] FWC 257
2 PR560380
3 [2015] FWC 646
[2015] FWCFB 799
DECISION
E AUSTRALIA FairWork Commission
[2015] FWCFB 799
2
[3] At the hearing of the appeal before us on 2 February 2015, the Appellant pressed its
application for a stay pending the determination of the appeal. This was opposed by the
Respondent, the CFMEU. At the completion of the hearing, we determined that we would
reserve our decision on the appeal, but issue our decision on the stay application by the close
of business today, given that Mr Genovese’s next working day under the return to work plan
is tomorrow (4 February 2015). This decision concerns the Appellant’s stay application. We
anticipate that it will be some weeks before we are in a position to issue our decision on the
appeal itself.
[4] As was stated in the Vice President’s decision of 27 January 2015, the principles
applicable to the consideration of a stay application are well-established.4 The Commission
must 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.
[5] On the first issue, having now received the parties’ full submissions, it is sufficient to
say that on our preliminary consideration of the matter the Appellant appears to have
advanced an arguable case. We do not propose beyond that indication to give any assessment
of the strength of the Appellant’s case.
[6] That makes it necessary to consider the issue of balance of convenience. We consider
that, in order to be satisfied that the balance of convenience favours the grant of a stay, it
would be necessary for the Appellant to demonstrate that there is a real risk of detriment to
Mr Genovese’s health and/or some broader risk to industrial harmony at the Barangaroo site if
the Order is not stayed.
[7] On the material before us, we are not satisfied that the Appellant has demonstrated
there is such risk. In relation to Mr Genovese himself, the return to work plan has been
developed by Ms Bagia, who has evident expertise and experience in the area of injury
management, assessment and workplace rehabilitation. The return to work plan involves a
carefully graduated return to work on the part of Mr Genovese, and includes a monitoring
mechanism. A critical feature of the plan is that any complex disputes are not to be handled
by Mr Genovese but are to be referred to another workplace delegate. We additionally note
that Mr Genovese has previously resigned from his role as Chair of the Barangaroo site Safety
Committee. This means that the stressors arising from what Mr Coleman, the Appellant’s
Managing Director, referred to in his evidence at first instance as the “pressure cooker
environment” of the very large and complex Barangaroo project will be much diminished
during the duration of the return to work program. We also place significant weight on the
medical evidence, which to varying degrees supports Mr Genovese’s return to work at the
Barangaroo site.
4 See Edghill v Kellow-Falkiner Motors Pty Ltd [2000] AIRC 785, Print S2639 at [5]
[2015] FWCFB 799
3
[8] There is nothing before us to suggest that Mr Genovese’s return to the Barangaroo site
will pose any risk to industrial harmony at the site. 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”5, and the Appellant did not challenge that finding in its appeal
submissions.
[9] We therefore decline at this time to grant the stay order sought by the Appellant. We
emphasise however (as should be apparent from our reasons) that in reaching this decision,
we have assumed that the return to work plan devised by Ms Bagia will strictly be complied
with by Mr Genovese as well as the Appellant. We also consider that the CFMEU has a
responsibility to ensure that the requirement of the return to work plan that complex disputes
be referred to another delegate is complied with, and we expect the CFMEU to discharge that
responsibility.
[10] If, for reasons not anticipated by us, Mr Genovese suffers any discernible detriment to
his health as a result of his return to work under the plan, or does not with the assistance of
the CFMEU comply with the plan, then the Appellant may renew its application for a stay.
We grant liberty to the Appellant to apply on short notice to the Associate to Vice President
Hatcher in this respect. Further, notwithstanding that it was not in issue in the appeal, should
Mr Genovese’s return to work be the cause of any disruption to industrial harmony at the
Barangaroo site, the parties may seek the assistance of the Commission in that respect at short
notice. Additionally, we grant leave to the Appellant, if any such dispute cannot be resolved
expeditiously, to re-apply for a stay on that score.
VICE PRESIDENT
Appearances:
F. Parry QC and R. Dalton of counsel, for the Appellant
I. Latham of counsel with T. McCauley, solicitor for the Respondent.
Hearing details:
2015.
Sydney:
2 February.
5 Decision at [64](f)
OF THE FAIR WORK MISSION THE
[2015] FWCFB 799
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