[2012] FWAFB 3738

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Fair Work Act 2009

s.604—Appeal of decision

Construction, Forestry, Mining and Energy Union
Hooker Cockram Projects NSW Pty Ltd


SYDNEY, 3 MAY 2012

Appeal against a s.420(2) interim order made by Senior Deputy President Cartwright in matter number C2010/766, consideration of residual matters raised in Full Bench decision [2011] FWAFB 3658

[1] This decision concerns residual issues raised by us in a decision in which we dealt with an appeal against an interim order made under s.420(2) of the Fair Work Act 2009. 1 With the exception of issues which we raised in the context of what we described as the fourth ground of appeal we declined to grant the Construction, Forestry, Mining and Energy Union (CFMEU) permission to appeal against the order. We allowed the parties a further limited opportunity to consider two aspects of the scope of the interim order which was made. This decision should be read in conjunction with our earlier decision.

[2] The interim order made by Senior Deputy President Cartwright arose in the context of an application under s.418 of the Act. The applicant was Hooker Cockram Projects Pty Ltd (the employer). Upon His Honour ruling that he could not deal with the s.418 application to completion within the two day period prescribed in s.420(1) he then made an interim order. Two aspects of the terms of the interim order were raised by us and the parties were invited to make further submissions about them. They relate to the order extending, as it did, to employees who were not members of the CFMEU and a reverse onus of proof provision concerning the health and safety exclusion from the industrial action to which the order was directed.

[3] We have considered the further submissions of the parties and the Master Builders Australia Limited (MBA). We are not persuaded that permission to appeal should be granted in respect to the residual issues we have identified. As we observed in our substantive decision, there was no evidence that there had been any attempt to enforce the order nor any evidence such an attempt was in contemplation or likely. There has been no suggestion this has changed. We also note that the application made under s.418 was withdrawn by the employer and no final order was made by the Senior Deputy President. Upon the withdrawal of the s.418 application the interim order ceased to operate.

[4] We have decided it is appropriate to make some brief comments about the terms of the interim order. The first concerns paragraph 6 of the order which describes the way in which the onus of proof is to be established in respect of the health and safety exclusion. The CFMEU did not challenge this provision at first instance. We have decided that in the circumstances of this matter we need do no more about this aspect of the appeal. We are not persuaded a variation to the order is warranted. We should make clear however that we do not accept the employer’s submission that the clause does no more than make clear to the reader of the order what is required of them. It also goes further than to simply provide for matters which might be described as incidental or necessary for the operation of the order. It is a substantive clause in its own right and directs a court of law as to how a breach of the order may be established. As we observed in our earlier decision at paragraph 24, it is significant that the Act contains no equivalent provision to s.420(4) of the Workplace Relations Act 1996. 2 We also here note the reference in the parties’ submissions to a comment about this matter in the explanatory memorandum.3 In our opinion, the absence of any counterpart to s.420(4) of the Workplace Relations Act 1996 is intentional. We have also decided this is not the occasion to deal with broader matters raised in the submissions of the MBA about burden of proof provisions in the Building and Construction Industry Improvement Act 2005.

[5] We next turn to the concerns we raised about the order extending, as it did, to all relevant employees whether they were members of the CFMEU or not. We commented in our earlier decision that the CFMEU did not at any time raise concerns about the lack of notice to employees who were not their members. We also noted the absence of any submission by the employer in this respect. In paragraphs 22 and 23 of our decision we identified some considerations that a member should take into account when deciding upon the scope of an order. Nothing the parties have put to us persuades us to revisit those comments.

[6] We have decided that the fourth ground of appeal is not such as to persuade us to revisit the interim order which was made. The public interest is not enlivened by this ground of appeal and, accordingly, we are not obliged to grant permission to appeal. Nor are we persuaded that the other traditional tests for the grant of permission to appeal are met. 4



T Roberts for the Construction, Forestry, Mining and Energy Union

T Lange for Hooker Cockram Projects NSW Pty Ltd

R Calver for Master Builders Australia Limited

 1   [2011] FWAFB 3658

 2   This is a reference to that subsection as it applied subsequent to amendments which came into effect 27 March 2006, and known as the Work Choices amendments

 3   Explanatory Memorandum regulatory analysis r.288 and 289

 4   For example whether the decision is attended with sufficient doubt to warrant its reconsideration or whether substantial injustice may result if leave is refused - Wan and the Australian Industrial Relations Commission [2001] FCA 1803

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