[Note: refer to the Federal Court decision dated 6 December 2013 [2013] FCAFC 148 for
result of appeal.]
[2013] FWCFB 453
The attached document replaces the document previously issued with the above code on
25 January 2013.
The reference to PR527575 in paragraph [5] of the Statement issued by Senior Deputy
President Richards on 29 August 2012, quoted in paragraph [6] of the Decision of the Full
Bench on 25 January 2013 has been corrected to refer to PR527573.
Sarah King
Associate to Vice President Watson
5 February 2013.
http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2013/2013fcafc0148
1
[2013] FWCFB 453
DECISION
Fair Work Act 2009
s.604 - Appeal of decisions
Communications, Electrical, Electronic, Energy, Information, Postal,
Plumbing and Allied Services Union of Australia;
Construction, Forestry, Mining and Energy Union
v
Abigroup Contractors Pty Ltd
(C2012/1042) (C2012/5202)
VICE PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT WATSON
COMMISSIONER GOOLEY SYDNEY, 25 JANUARY 2013
Appeal against decision [[2012] FWA 7654] and order [PR528753] of Senior Deputy
President Richards at Brisbane on 5 September 2012 in matter number C2012/5149 -
industrial action - whether procedural fairness afforded - whether longer adjournment should
have been granted - whether jurisdiction to make order - clarity of the order - Fair Work Act
2009 - ss. 418, 604.
Introduction
[1] This decision concerns applications for permission to appeal by the Communications,
Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of
Australia (CEPU) and Construction, Forestry, Mining and Energy Union (CFMEU) against a
decision of Senior Deputy President Richards on 5 September 2012 to make orders pursuant
to s.418 of the Fair Work Act 2009 (the Act). The orders relate to an application by Abigroup
Contractors Pty Ltd (Abigroup) seeking the cessation of industrial action occurring on site at
the Queensland Children’s Hospital Project (the QCH Project) in Brisbane.
[2] At the hearing of the appeal in Brisbane on 10 October 2012, Mr E. White appeared on
behalf of the CEPU, Mr T. O’Brien appeared on behalf of the CFMEU, Mr J. Murdoch SC
appeared on behalf of Abigroup and Mr A. Herbert appeared on behalf of the Attorney
General and Minister for Justice, Queensland (the Attorney).
Background and the decision under appeal
[3] The QCH Project is a major public health asset project valued at approximately
$800m. During the course of 2012 it has been subject to significant disruption from industrial
action.
AUSTRALIA FAIR WORK COMMISSION
[2013] FWCFB 453
2
[4] On 10 February 2012 Senior Deputy President Richards made orders under s.418 of
the Act that industrial action on the site stop. Those orders expired on 1 March 2012. His
Honour made further s.418 orders on 11 May 2012 that expired on 11 June 2012. On 6
August 2012, his Honour made a third set of orders that were expressed to apply until 5.00pm
on 3 September 2012.
[5] His Honour subsequently dealt with a large number of dispute notifications lodged by
subcontractors in relation to stoppages at the site.
[6] On 29 August his Honour issued a statement in which he said:1
“[5] I issued orders (in PR527573) on 6 August 2012 against various employees (of
Abigroup and its subcontractors) who are members of the CFMEU who had ceased
work on the site (including the related Energy Plant Project) at that time.
[6] Proceedings designed to enforce the orders and for some wider purposes against
the CFMEU were also initiated in the Federal Magistrates Courts, and an interim
injunction remains in place, pending final trial (possibly in the new year).
[7] Though Abigroup has declared the site open for work and safe, seemingly no work
is being performed on a daily basis. Access to the three site entry points (the main
entry site and two other smaller access points) appears restricted by congregations of
persons, whose presence appears ensconced. The Applicants describe these as pickets.
[8] It also appears the CEPU Divisions, while declaring the site open, have cautioned
their members about the ramifications of seeking entry in these circumstances. It is not
said, as I understand the applications, that the CEPU Divisions themselves have any
physical role in restricting access to the site. Indeed, the CEPU Divisions contend they
are in no dispute with the various employers (subcontractors).
[9] The dispute is entering its fourth week.
[10] A dispute of this duration is now generating entirely undesirable outcomes. The
subcontractor businesses are facing significant commercial risk: with reduced cash
flow repayments on plant and equipment are becoming more difficult. Some
subcontractor businesses face closure. Skills are being lost to the businesses and to the
site as trades seek alternative, secure employment. The completion of the hospital may
be delayed.
[11] The subcontractor businesses employ workforces of up to 110 employees, with
the average being around 30-40 employees. It appears to me that a significant number
of these employees who have been without wages face hardship and are in an
increasingly financially distressed position. No doubt this is of concern to the
employees’ representative organisations.
[12] Productive work on the site needs to resume as quickly as possible.”
[7] The offer of a conference between the parties before Fair Work Australia was not
accepted by the CFMEU.
[2013] FWCFB 453
3
[8] On 3 September 2012 Abigroup made a further application under s.418 of the Act for
orders in relation to the CFMEU, the Australian Building Construction Employees and
Builders’ Labourers’ Federation (Queensland Branch) Union of Employees (BLF), the CEPU
and employees engaged by subcontractors on the site eligible to be members of these unions.
The application was called on for hearing before his Honour at 3.00 pm that day.
[9] At the commencement of the hearing the CFMEU sought an adjournment of the matter
to Wednesday 5 September and the CEPU supported the application for an adjournment in
order to consider evidentiary material that was sought to be relied on by Abigroup. The
application was opposed by Abigroup on grounds including that the existing order was due to
expire at 5.00 pm that day and the industrial situation at the site was deteriorating to the point
that certain persons had been charged with criminal offences. In response to the adjournment
application his Honour said as follows:2
“Thank you. Look, everyone, I have examined the material that’s come in, that’s been
filed, and also of course I don't have a fixed determined view on those matters as yet. It
is suggestive of the fact that the industrial action that I found last week, at least at a
preliminary level and without reaching any fundamental findings of course is that the
situation continues to be parlous and difficult at the particular site. As in all these
matters there is a high degree of urgency attached to these applications when they
come in and I will attach the same degree of urgency to this particular application,
particularly in the context where the orders which currently exist expire later this
afternoon. There may well be issues where some parties have some concerns about the
satisfactory nature of the service to the various documents and so forth, and the
completion – whether or not the documents they hold are complete body of materials.
I’ll adjourn for the 30 minutes that Mr Murdoch suggested and I’ll allow you to
examine the completeness of your respective files. If in that 30 minute time one of the
– someone is of concern that they need some small short further period of time to
digest some particular materials, then you can request that at the time. So we'll adjourn
for that period of time and re-resume on those circumstances. Thank you.”
[10] When the matter resumed at 4.10 pm that day the CFMEU, supported by the CEPU,
renewed its application for an adjournment to the following Wednesday morning. After some
clarification of the positions of the parties, at 4.26 pm, the matter was again adjourned until
5.12 pm to allow the parties to examine footage of DVDs that Abigroup had foreshadowed
tendering as evidence of recent CFMEU conduct at the site. The matter then proceeded to
hearing the cases of the parties until 8.53 pm when his Honour reserved his decision on the
matter.
[11] On 5 September 2012 his Honour handed down his decision and made an order under
s.418 of the Act. As to the expedited nature of the decision, his Honour said:3
“[4] This decision is expedited for reason that the stoppage and the severe limitation on
site access which have arisen is long running. The situation is heightened by that very
fact, along with some of the conduct issues, which have led to one arrest so far. The
communications made on the site and elsewhere are sometimes unashamedly abusive,
and there are also media and other reports of threats and intimidation which only fuel
the current tensions. It is said by the Company that the cost of the stoppage per day
(excluding RDOs) is in the order of $300,000 plus any contractual damages that might
be levied by the Queensland State Government.”
[2013] FWCFB 453
4
[12] In relation to the CEPU his Honour said:4
“[6] In the previous application, I made no finding that the CEPU was organising
industrial action or that members of the CEPU (in either of its divisional guises) were
themselves taking unprotected industrial action. The services trades do not appear to
have been involved in the initial walk-out, and only appear to have been unable to
access their work site since the following day. The evidence before me at that time did
not travel so far, therefore, to support any other finding at that time.
[7] There is a claim in the current application that some of the employees of the
subcontractors are taking industrial action that is not in all likelihood to be protected
industrial action. I agree that there is evidence of employees of the services trades who
are members of or are eligible to be members of the CEPU who have taken
unprotected industrial action. They have left site on some occasions for meetings with
CEPU officials. They have left site and participated in activities in support of the
wider industrial action that I have found to be happening (see further below). Mr Brian
Gildea also provided evidence that they have participated in a demonstration in
support of the industrial action around the site.
[8] Generally, it further appears from Mr Gildea’s observations, a large gathering of
workers across the structural and services trades assembles each morning (other than
on rostered RDOs), and then disperse, with no work being performed.
[9] It is difficult, however, on the evidence and the precision of those claims as made
to identify that group sufficiently for purposes of an order so that those employees are
distinguishable from those employees who are not performing work for reason of
concerns for their safety and the inability to access the site owing to the presence at the
various gates. More is needed before such time as I would make a stop order in the
general terms as sought against employees of the subcontractors who are members of
the CEPU (in either of its divisional guises). But having found that industrial action is
happening and is being carried out by employees of the services trades who are
members of or are eligible to be members of the CEPU, the Act requires that I must
make a stop order as consequence.
[10] I will make an order, therefore, in relation to the industrial action that is
happening and will make that order so that it applies to those employees who are
members of or are eligible to be members of the CEPU, and who are employees of the
subcontractors to the Company who are taking industrial action that is not protected
industrial action. The order is therefore somewhat self-limiting.
[11] I have not previously made an order against this class of employees in relation to
this site in the current context. That encourages me to make an order of a shorter
duration. However, the overall situation on the site has been long running, the
employees concerned have been participants in that situation, and an order of some
length is warranted to ensure the site has an opportunity to achieve some degree of
industrial stability and for the relationships between the parties to normalise. I will
make the order for a duration of six months as a consequence.” (Footnotes omitted)
[2013] FWCFB 453
5
[13] His Honour’s conclusions in relation to the CEPU were expressed as follows:5
“[30] In the contexts I have set out above, and notwithstanding the manner in which
some of the relevant information has been conveyed to the Company, the presence of
the CEPU on site has not been and is not a passive or disinterested one. Rather, it
continues to be for a particular purpose: to advance and lend support to an industrial
objective. The CEPU’s overall conduct on site cannot reasonably be explained
otherwise.
[31] It appears to me therefore that by its conduct, the CEPU is organising industrial
action for the purposes of s.418(1)(c) of the Act. And because I so find, I must make a
stop order for a prescribed period of operation. I add that I have discussed in some
limited way below the scope of meaning of the verb “organising” (for purposes of
s.418(1)(c) of the Act) in the context of comments by a recent Full Bench of FWA.”
[14] Separate consideration was given to the position of the CFMEU and employees
eligible to be its members. His Honour found that similar circumstances existed as at the time
of the first order, and as industrial action was continuing to occur, he was required to renew
the orders made against the CFMEU.
[15] In order to address the situation that some CEPU members were engaging in industrial
action and some may not be working for different reasons, his Honour framed the order by
describing the employees bound in the following terms:6
“3.4 all employees employed by a subcontractor to Abigroup at the QCH Project
who (are) members or who are eligible to be members of the CFMEU and the
CEPU, and who are undertaking industrial action that is not protected action.”
[16] On 5 September 2012 the Federal Magistrates Court listed an application by Abigroup
for an interlocutory injunction against the CEPU and three of its organisers. When the matter
was listed at 3.00 pm counsel for the CEPU sought an adjournment until the following day.
The adjournment was granted to 11.00 am on 6 September. The adjournment permitted the
CEPU to prepare evidence which was filed by the CEPU prior to the matter resuming. On
7 September FM Jarrett granted an interlocutory injunction.
Grounds of appeal
[17] The CEPU and CFMEU advanced grounds of appeal in substantially similar terms as
follows:
“That the Senior Deputy President acted beyond jurisdiction in making the decision
and order against the CEPU, CFMEU, their officers, employees, agents and delegates
and employees as defined in that:
his Honour denied the CEPU and CFMEU procedural fairness by refusing
an application for an adjournment;
his Honour denied the CEPU and CFMEU procedural fairness by admitting
as evidence unsourced prejudicial hearsay;
[2013] FWCFB 453
6
his Honour erred in finding that members of the CEPU and CFMEU have
taken or were taking industrial action;
his Honour erred by binding employees as defined; and
his Honour erred in finding that the CEPU and CFEMU were organising
industrial action.”
The nature of the appeal
[18] An issue arose in the appeal as to whether some or all of the aspects of the decision
that are subject to the appeal are properly viewed as discretionary decisions such that the
principles derived from the High Court decision in House v R7 should be applied. In Coal and
Allied Operations Pty Ltd v Australian Industrial Relations Commission (Coal and Allied)8
the High Court provided guidance on the relevant appeal provisions and the nature of a
discretionary decision. In the joint judgment of Gleeson CJ, Gaudron J and Hayne J it was
said:
“19. “Discretion” is a notion that "signifies a number of different legal concepts”. In
general terms, it refers to a decision-making process in which “no one
[consideration] and no combination of [considerations] is necessarily
determinative of the result." Rather, the decision-maker is allowed some
latitude as to the choice of the decision to be made. The latitude may be
considerable as, for example, where the relevant considerations are confined
only by the subject-matter and object of the legislation which confers the
discretion. On the other hand, it may be quite narrow where, for example, the
decision-maker is required to make a particular decision if he or she forms a
particular opinion or value judgment.
20. In the present case, the decision by Boulton J to terminate the bargaining
period involved, in effect, two discretionary decisions. The first was as to his
satisfaction or otherwise that the industrial action being pursued posed a threat
for the purposes of s 170MW(3) of the Act. Although that question had to be
determined by reference to the facts and circumstances attending the industrial
action taken in support of claims with respect to a certified agreement, the
threat as to which his Honour had to be satisfied was one that involved a
degree of subjectivity. In a broad sense, therefore, that decision can be
described as a discretionary decision. And if Boulton J was satisfied that there
was a threat for the purposes of s 170MW(3), that necessitated the making of a
further discretionary decision as to whether the bargaining period should be
terminated.
21. Because a decision-maker charged with the making of a discretionary decision
has some latitude as to the decision to be made, the correctness of the decision
can only be challenged by showing error in the decision-making process. And
unless the relevant statute directs otherwise, it is only if there is error in that
process that a discretionary decision can be set aside by an appellate tribunal.
The errors that might be made in the decision-making process were identified,
in relation to judicial discretions, in House v The King in these terms:
[2013] FWCFB 453
7
“If the judge acts upon a wrong principle, if he allows extraneous or irrelevant
matters to guide or affect him, if he mistakes the facts, if he does not take into
account some material consideration, then his determination should be
reviewed and the appellate court may exercise its own discretion in substitution
for his if it has the materials for doing so.”
[19] On the other hand a finding of jurisdictional fact is not a discretionary decision and an
appeal bench must determine for itself whether a finding of such a nature is correct.9 The first
ground of appeal raises the issue as to whether his Honour acted within jurisdiction by
providing the parties procedural fairness. The test for such a matter is whether the party was
provided with a reasonable opportunity to present its case. This question calls for the exercise
of an overall judgment, albeit one that bears upon the jurisdiction of the Fair Work
Commission (the Commission) to proceed.
[20] The Australian Industrial Relations Commission regarded such a question as a
discretionary decision in one case10 and a question of jurisdictional fact in another.11
Determining what is a reasonable opportunity or determining the length of adjournments are,
of course, matters of broad judgment. However, when the requirement to provide procedural
fairness is concerned, it is necessary to determine where to draw the line that represents the
proper provision of procedural fairness - and on appeal, to determine whether the conduct of
the proceedings was on the correct side of that line.
[21] We therefore consider that the correct approach in relation to the natural justice
ground is to determine whether procedural fairness was provided, and whether his Honour
had jurisdiction to proceed after giving the parties the opportunities that he gave them. We
consider that the decision appealed against is not a discretionary decision in the sense
described in Coal and Allied. However, in the circumstances of this matter we do not believe
that much turns on the distinction.
[22] We turn to consider the various grounds of appeal.
Procedural fairness
[23] The CEPU and CFMEU contend that they were unable to prepare an argument in
response to the application, their representatives were unable to obtain adequate instructions
and they were unable to prepare evidence which would go to the question of whether an order
should be made.
[24] Abigroup and the Attorney submit that procedural fairness was provided to both
unions. They rely on the nature of the statutory task under s.418 of the Act, the urgency that
the application was required to be given and the opportunity of both unions to contact relevant
officers in order to bring evidence of their conversations. They submit that the indications of
the nature of further evidence that the unions would have wished to bring regarding their
involvement in the stoppage of work did not add to the material put to his Honour and did not
contradict the findings of fact he made.
[25] It is well established that the members of this Commission are under a duty to observe
the rules of natural justice.12 The more difficult question is that nature of the requirement in
particular circumstances. The requirements of natural justice depend on the circumstances of
the case, the nature of the inquiry, the rules under which the Commission is acting, the subject
[2013] FWCFB 453
8
matter that is being dealt with and any other relevant circumstances.13 The starting point is the
statute creating the power. The statute reveals whether the power is conditioned on
observance of the principles of natural justice and whether there are special procedural steps
which may extend or restrict what the principles may otherwise require.14 The principles
require a reasonable opportunity to present a case, not an opportunity to present the best
possible case.15 It is asserted by the CEPU and the CFMEU that if there has been a denial of
natural justice. The test in this appeal is whether the consequence of that denial was that it
denied the unions the possibility of a successful outcome.16
[26] The power under s.418 of the Act imposes a duty on the Commission to make an order
if it appears to the Commission that industrial action is happening or being organised, as was
alleged in this case. Section 420 contains a statutory injunction to determine an application
within two days after the application is made “as far as practicable.” If the Commission is
unable to determine the matter within that period, the Commission is required to issue an
interim order unless satisfied that it would be against the public interest to do so.
[27] Under the same legislative scheme, but dealing with the different circumstances of the
making of an interim order under s.420 of the Act, a Full Bench of Fair Work Australia in
Construction, Forestry, Mining and Energy Union v Hooker Cockram Projects NSW Pty Ltd
said:17
“[19] We have closely reviewed the transcript and are not persuaded His Honour was in
error in declining to grant the adjournment sought by the appellant. We note that in
fact His Honour did grant an adjournment but it is the additional grant of the interim
order that is complained of. We do not overlook the very limited time given to the
appellant to attend the hearing but the requirements of s.420 are such that unless
agreement is reached between parties these applications are always listed at short
notice. Also, in this context, we have taken into account the fact this application was
filed on the last working day of the week and a decision had to be made on that day
about when it could resume. We know ourselves that it is not uncommon for members
to hear these types of matters on a weekend. In considering how this application
proceeded we give His Honour the benefit of his knowledge of these parties and the
dynamics of the building and construction industry which industry is in the panel of
which he was a member. These factors are what we take he was referring to when he
talked about these matters coming in on a Friday and then the parties running the usual
arguments.
[20] In respect to this ground we also think the appellant places too little weight on the
two day deadline and there being no basis for His Honour to be confident the matter
could come on again for hearing prior to that deadline being reached. In this respect
we note the various ways in which the appellant indicated the nature of the
adjournment it sought. When the application for an adjournment was first made it was
to be until “another day” and there was no suggestion this would be either of the
following two days. Subsequently, it was for an adjournment to the following
Monday. In neither case did the appellant make any submission about the fact that
within the adjourned period the two day deadline would expire and His Honour was
obliged to address the requirements of s.420(2). The appellant’s advocate made no
application for a short adjournment so as to enable him to obtain firm instructions nor
to put some other alternative proposal to the company and His Honour. We agree with
the company’s submission that it was not until after His Honour had adjourned to
[2013] FWCFB 453
9
consider the submissions that had been made and then resumed and indicated he was
obliged to make an interim order, and would do so unless persuaded it was not in the
public interest, that the appellant’s advocate said he would have representatives attend
a hearing on the weekend. In those circumstances His Honour was not in error in
refusing the adjournment and declining to make the interim order.”
[28] Whilst the Full Bench was dealing with a different aspect of the Commission’s powers
concerning the making of interim orders, this passage demonstrates that in considering
whether natural justice has been denied it is necessary to have regard to the statutory context,
the particular circumstances of the proceedings and the grounds for making an application for
an adjournment.
[29] The nature of the proceedings and the statutory context is the starting point in
determining whether there has been a denial of procedural fairness. Section 418 is a remedy
that is clearly intended to be available at short notice to deal with unprotected industrial
action. An order can be made either on application by a person affected or on the
Commission’s own motion. The impact of the order on the existing rights and obligations of
the parties is also a relevant consideration.
[30] The primary issue for determination in an application under s.418 is whether it appears
to the Commission that industrial action is happening (or is threatened, impending, probable
or being organised). This involves a finding of fact. If it appears to the Commission that
industrial action is happening, it is required to issue an order. The statutory injunction to
determine matters within two days (as far as practicable) emphasises that matters under the
provisions will necessarily be conducted with expedition and the opportunity to present a case
will be limited. The scheme of this legislation carries with it the expectation that when
members of an organisation engage in a stoppage of work, they need to be ready at short
notice to be represented in any proceedings regarding their conduct and put such submissions
that may be available to them to avoid the consequences of further orders arising from their
conduct. This is quite a different situation to civil remedies generally where there is an
obligation to make out a case and permit a respondent a reasonable opportunity to respond to
the case against them. The obligation to make orders, on application or on its own motion,
requires the Commission to conduct the proceedings with considerable expedition.
[31] We note in this matter that the circumstances included the following:
industrial action had been taking place at this site for some time,
the site was an important public infrastructure project;
the stoppage of work had attracted publicity;
his Honour had previously issued three orders for the industrial action to stop;
despite the order there had not been a return to work at the site;
although the previous orders did not apply to the CEPU, there had been disputes
before his Honour in relation to the CEPU and contractors engaged to perform
work on the site;
during the course of the hearing on 3 September 2012, the previous order applying
to the CFMEU expired;
the fact that work was not being conducted by CEPU members on the site was not
contested. The key contention of the CEPU was that the stoppage of work by
CEPU members was not industrial action and the CEPU officials were not
organising it;
[2013] FWCFB 453
10
his Honour granted two adjournments of a short duration;
following the adjournments the CEPU was permitted to lead hearsay evidence
which provided a factual basis for the contentions made by the CEPU about the
relevant circumstances;
his Honour dealt with the issue of whether the stoppage of work by all employees
amounted to industrial action by limiting the scope of the order to those who were
engaging in industrial action.
[32] Significantly, we are not persuaded that the evidence which would have been brought
with the benefit of an adjournment, reflected in the additional evidence filed by the CEPU in
the Federal Magistrates Court on 6 September 2012, following an adjournment granted on
5 September 2012, would have affected the decision and order of Senior Deputy President
Richards.
[33] In all of the circumstances and having regard to the scheme of the Act we do not
believe that his Honour denied the CEPU or the CFMEU procedural fairness. His Honour was
in the best position to assess the circumstances and determine the appropriate procedure to be
adopted to enable him to determine the matter. He had dealt with industrial action regarding
this project on several previous occasions. He granted two adjournments of a short duration.
He denied an application for a further adjournment that would have extended the proceedings
beyond the period he was required to try to determine the application. In our view his Honour
gave the parties a reasonable opportunity to conduct their case. We dismiss this ground of
appeal.
Admission of hearsay evidence
[34] The CEPU and CFMEU submit that the admission of hearsay evidence in the
proceedings also gave rise to a denial or procedural fairness.
[35] Abigroup submits that the objection of the CEPU and CFMEU concerning prejudicial
hearsay evidence is an evidentiary argument and not a procedural fairness argument. It
submits that his Honour acknowledged that some of the evidence was not direct evidence and
indicated that he would weigh the evidence accordingly in his consideration of the matter.
[36] All parties acknowledge that the Commission is not bound by the rules of evidence
and may inform itself of matters as it sees fit. It is not disputed that some of the evidence of
Abigroup (and some of the evidence of the unions) was of a hearsay nature. The parties differ
as to the significance of the admission of hearsay evidence.
[37] We note that hearsay evidence of Mr McCann was supplemented by oral evidence of
Ms Rogers in the proceedings. We are satisfied that his Honour acknowledged the limited
weight of the hearsay evidence when admitting it into evidence, that he relied on Ms Rogers’
direct account of the matters, that the unions were not denied procedural fairness by virtue of
the hearsay evidence and his Honour only had regard to evidence which in all the
circumstances had rational probative force. We dismiss this ground of appeal.
[2013] FWCFB 453
11
Jurisdiction to make the order
[38] The CEPU and CFMEU submit that in order for the Commission to make an order
under s.418, it must be satisfied that one or more of the jurisdictional facts in s.418(1) of the
Act are made out. The appellants contend that the decision of a majority of the Federal Court
in Transport Workers’ Union of New South Wales v Australian Industrial Relations
Commission18 represents the standard of satisfaction that must be met in order to found
jurisdiction to make an order:
“24 For present purposes, it is enough to say that, in the absence of any finding other
than that industrial action, not being protected action, by employees was happening,
the Commission had no power to go beyond the making of orders that the industrial
action stop. Without it appearing to the Commission that industrial action was
threatened, impending or probable, the Commission was under no duty, and had no
power, to make any order that the industrial action not occur. Similarly, in the absence
of a finding that the industrial action was being organised, the Commission had no
duty, and no power, to make an order that the industrial action not be organised.”
[39] The CEPU further submits that whilst it was acknowledged that employees were not
attending work, it was a matter of contention whether the non-attendance was due to
reasonably held health and safety concerns or whether the non-attendance was industrial
action.
[40] Abigroup and the Attorney do not contest the requirements are as enunciated by the
Federal Court but submit that there was ample evidence to justify the findings made by the
Senior Deputy President. At the time of the hearing on 3 September, no work had been done
on the site by persons eligible to be CFMEU members since 6 August and no work had been
done by persons eligible to be CEPU members since 7 August.
[41] The CFMEU conceded in the proceedings that it would be difficult to argue that
persons eligible to belong to the CFMEU were not engaging in industrial action. The CEPU
contended that its members were not engaging in industrial action as their stoppage was due
to a perceived risk to their health and safety. The evidence of Mr Gildea went to the activities
of CEPU members, their participation in joint meetings with the CFMEU, their participation
in demonstrations in support of industrial action and their assembly at the site each morning,
often with CEPU officials, prior to dispersing without performing any work.
[42] His Honour acknowledged that some of the persons eligible to be members of the
CEPU may have not worked for reasons which took them beyond the definition of industrial
action. He was not persuaded that all of those employees could be so described. We agree that
the findings that industrial action by persons eligible to be members of the CEPU were open
on the evidence and the Senior Deputy President had the jurisdiction, and was obliged to
issues the orders concerning these employees. We are also satisfied that there was evidence to
find that the CFMEU and CEPU were involved in the industrial action and their conduct fell
within the description of organising industrial action. The position of non-members is
addressed below. We dismiss this ground of appeal.
[2013] FWCFB 453
12
Uncertainty of the order
[43] The CEPU and CFMEU submit that there is no way for employees of subcontractors
to ascertain whether the order applies to them and the scope of the order should not have been
expressed in such a manner. They submit that the wording of clause 3.4 of the order, as noted
above, is uncertain.
[44] Abigroup submits that it was never asserted before his Honour that employees were
taking protected industrial action. It submits that there was no evidence before his Honour
which pointed to any imminent risk to health and safety. Abigroup further submits that there
is no identified person or group of people who could be under a reasonable misapprehension
as to whether or not their actions were in breach of the order. In any event it submits that the
exclusion from the order of conduct that is not industrial action means that any employees
engaging in conduct that falls within such a category are not affected by the order.
[45] We agree with the submissions of Abigroup. The wording of the order in this respect
is unexceptional. This ground of appeal is dismissed.
Wording of the order
[46] Further criticisms are made of the scope of the order and its application to
non-members. The CFMEU and CEPU contend that non-members of the organisations had no
opportunity to make submissions and participate in the proceedings and should not have been
bound by the order.
[47] Abigroup submits that the unions are in no position to challenge those parts of the
order that may apply to any employees who are not their members, there is no appeal or
challenge by any non-member and no weight should be given to these arguments.
[48] In this regard it is important to note the comments of the majority of a Full Court of
the Federal Court in TWU v Australian Industrial Relations Commission19 when it stated that
it is contrary to the principles of natural justice “for employees to find out only after an order
has been made that they are potentially liable for financial penalties if they fail to comply with
that order. The exercise of a power of this nature requires advance notice of the fact that an
order is being sought, and an opportunity to provide evidence and to make submissions about
the issues attending its making.”
[49] We also note the following comments of the Full Bench of Fair Work Australia in
Construction, Forestry, Mining and Energy Union v Hooker Cockram Projects NWS Pty Ltd20
in relation to interim orders:
“[23] It will be a question of fact as to whether in any given case a union adequately
represents the interests of employees who may be affected by any order which may
issue. In this context a members knowledge of the industry, the parties, and the work in
question will inform their view as to whether service on a union in a particular matter
is adequate. However, there is nothing in the application or transcript to show that His
Honour considered any of these matters nor how he was satisfied the appellant
represented all employees or that service on it was, in the circumstances, adequate for
all employees to whom the order would apply. In our opinion, if there is nothing
before a member to satisfy them that reasonable attempts have been made to notify non
[2013] FWCFB 453
13
union employees who are taking industrial action then serious consideration needs to
be given to whether it is appropriate for an interim order to extend to those persons.”
[50] In this case, it has not been established that there are any employees in the category
concerned. We dismiss this ground of appeal.
Conclusions
[51] We are satisfied that the appeal raises issues concerning the procedure to be adopted in
relation to applications under s.418 of the Act and we therefore grant permission to appeal.
However, for the above reasons we dismiss the appeal.
VICE PRESIDENT WATSON
Appearances:
E. White, of counsel, for the Communications, Electrical, Electronic, Energy, Information,
Postal, Plumbing and Allied Services Union of Australia
T. O’Brien for the Construction, Forestry, Mining and Energy Union
J. E Murdoch, SC, of counsel, for Abigroup Contractors Pty Ltd
A. K Herbert, of counsel, for the Attorney General and Minister of Justice for the State of
Queensland
Hearing details:
2012.
Brisbane.
October, 10.
Printed by authority of the Commonwealth Government Printer
Price code C, PR533344
1PR528556.
2Transcript of proceedings, 3 September 2012 at PN29.
3 [2012] FWA 7654.
[2013] FWCFB 453
14
4 Ibid.
5 Ibid.
6 PR528753.
7 (1936) 55 CLR 499.
8 (2000) 203 CLR 194.
9 Pawel v Australian Industrial Relations Commission [1999] FCA 1660; Sammartino v Commissioner Foggo [1999] FCA
1231.
10 Western Australian Farmers Federation Industrial Association v AWU PR952804.
11 Australian Railroad Group Employment Pty Ltd v Chellew PR945271
12 R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552.
13 Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 504.
14 Kioa and others v West (1985) 159 CLR 550 at 614 per Brennan J.
15 CBI Constructors v Australian Manufacturing Workers’ Union (1999) 87 IR 82; Sullivan v Department of Transport
(1978) 20 ALR 323 at 343 per Dean J.
16 Stead v State Government Insurance Commission (1986) 161 CLR 141.
17 [2011] FWAFB 3658.
18 (2008) 171 IR 84 at [24].
19 Transport Workers' Union of New South Wales v Australian Industrial Relations Commission [2008] FCAFC 26 at 44 per
Gray and North JJ.
19 Construction, Forestry, Mining and Energy Union v Hooker Cockram Projects NSW Pty Ltd [2011] FWAFB 3658 at 23.
