[2013] FWCFB 2568

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Fair Work Act 2009
s.604 - Appeal of decisions

Mr Ian McKewin; Mr Terry Hamilton; Mr Steve McDonald; Mr Rod Brown; Mr Peter Hallam; Mr Ben Williams; Mr David O'Brien; Mr Baldev Lahoye; Mr David McArthur; Mr David Sharrock; Mr Michael Best; Mr Daniel Hill; Mr John Norton; Mr Darren Hughes
Lend Lease Project Management & Construction (Australia) Pty Ltd


SYDNEY, 3 MAY 2013

Appeal against decision [2013] FWC 1527] and s.418 Order PR534722 of Senior Deputy President Richards at Brisbane on 11 March 2013 in matter number C2013/3516.

[1] This is an appeal against an interim order made under s.420(2) of the Fair Work Act 2009 (FW Act) by Senior Deputy President Richards on 11 March 20131 (the Order), and the accompanying decision of the Senior Deputy President of the same date2 giving his reasons for the making of the Order (the Decision). The appellants are 14 of the 20 persons identified in the Order as employees of the respondent to this appeal, Lend Lease Project Management & Construction (Australia) Pty Ltd (Lend Lease), and who were bound by the Order (the Employees).

Background and the Decision and Order under Appeal

[2] The circumstances in which the Order came to be made, and events thereafter, require some description. We should note at this point that the appellants at the hearing of the appeal sought to adduce further evidence by way of a statement of Alexander Victor Paul Cousner, an industrial officer of the Construction, Forestry, Mining and Energy Union (CFMEU), dated 23 April 2013, which described some of the circumstances known to him concerning relevant events before and after the making of the Order. We determined to admit that evidence under s.607(2)(a) of the FW Act. The facts stated in Mr Cousner’s statement were not the subject of any contest by Lend Lease. We have relied upon the contents of that statement, as well as the facts recited in the Decision, the materials in the Appeal Book, other documents appearing in the case file, and agreed or uncontested statements of fact which were made by counsel for the parties at the hearing of the appeal, in order to construct our narrative of what occurred.

[3] On 11 March 2013, at approximately 2.30 pm, Lend Lease filed an application for an order under s.418 of the FW Act against the Employees. The application also sought an interim order under s.420(2) in the event that the primary application could not be heard and determined within 48 hours. It is necessary to set out the grounds for the making of the orders stated in the application, given that they formed the major part of the very limited material of a factual nature which was before the Senior Deputy President when he made the Order. The grounds were as follows:

[4] Lend Lease’s application under s.418 was accompanied by an application for an order for substituted service. This application sought that service upon the Employees of the s.418 application be effected by way of an SMS message, or by display of the application at their workplace, or by distribution of the application “on site”. The grounds stated in support of this application were:

[5] At about 3.00 pm on 11 March, the CFMEU became aware that Lend Lease had filed its s.418 application. It appears that this was a result of the CFMEU being contacted by a number of the Employees who were CFMEU members, who were aware that Lend Lease had made the application, and who sought CFMEU advice and representation with respect to that application. Mr Cousner on behalf of the CFMEU contacted the Fair Work Commission to seek to obtain details of the hearing of the Lend Lease application. At about 4.00 pm, he was advised by the Senior Deputy President’s Associate that the matter would probably be heard that night, that the preliminary and unconfirmed time for the hearing was 6.00 pm that evening, but that he should call back later and obtain confirmation of the time for the hearing.

[6] Mr Cousner had by this time given some consideration as to what he might put in opposition to Lend Lease’s application if the matter was the subject of a hearing that evening. In his statement of evidence, he identified two submissions he would have made: first, that there was no industrial action currently occurring, since normal working hours would have ended by the time the hearing commenced, and second, that on the basis that the Employees did not intend to take any further action the following day, there was no basis to conclude that industrial action was threatened or impending.

[7] However, no hearing commenced that evening. When Mr Cousner spoke to the Senior Deputy President’s Associate again at about 4.45 pm, he was advised that Lend Lease’s application was not going to be heard that day and would likely be heard either on 12 March or possibly 13 March.

[8] At about 5.45 pm on 11 March, the Senior Deputy President granted Lend Lease’s application for an order for substituted service. A copy of the order was sent to Lend Lease’s representative in the proceedings. Paragraph [1] of the order for substituted service stated:

[9] At about 6.10 pm on 11 March, the Senior Deputy President issued the Decision and the Order. The substantive obligations imposed upon the Employees by clause 3 of the Order were expressed in the same terms as contained in the draft order attached to Lend Lease’s initiating application. Clause 3 provided:

[10] The expression “industrial action” in clause 3 of the Order was defined in clauses 4.2 and 4.3 of the Order in a way which in substance was the same as the definition of “industrial action” contained in s.19 of the FW Act, excluding references to industrial action by employers and including an exception for protected industrial action within the meaning of s.408 of the FW Act. Again, subject to some changes to paragraph numbering, this reproduced what was in Lend Lease’s draft order. Clause 5 provided that service of the Order could be effected by sending it by express post to the residential address of each of the Employees, and also by a text message to each of the Employees. Clause 5 identified the mobile telephone number of each of the Employees, and further provided that the text message was to be in the following terms or similar:

[11] Clause 6 of the Order provided that the Order took effect from 5.30 pm on 11 March 2013 and remained in force until the substantive application was determined.

[12] Paragraphs [4]-[7] and [9]-[12] of the Decision set out the Senior Deputy President’s reasons for making the Order as follows:

[13] As to the further progress of the matter, the Senior Deputy President indicated in the Decision that “It is not anticipated, however, that the application will be heard in the immediately near future”3, but gave no reasons why that was the case. He also stated that should Lend Lease withdraw the application before the application was determined, “the order will lapse as a matter of automaticity”4.

[14] Lend Lease at no stage asked the Senior Deputy President to make an interim order on 11 March. Neither the appellants, the CFMEU, nor Lend Lease were aware that the Senior Deputy President was contemplating making an interim order on 11 March.

[15] Mr Cousner’s evidence was that he became aware on 12 March that the Employees had, on the evening of 11 March, received a text message from Lend Lease in the following terms:

[16] His evidence in this respect is confirmed by an email communication from Lend Lease’s representative in the matter to the Senior Deputy President’s Associate dated 12 March, which identified the content of the text message and stated that it had been distributed at 8.29 pm on 11 March. This email communication further confirmed that the Order had been distributed to the Employees “on-site”, and would be express posted that day. The same email communication stated:

[17] At the hearing of the appeal, we were informed by counsel that it was an agreed fact that the Employees did take industrial action by way of a cessation of work on 12 March, not as a continuation of what had occurred the previous day but as a consequence of the making of the Order.

[18] On 13 March, Lend Lease’s representative sent a further email confirming that each of the Employees had been sent the Order by express post on 12 March. This email identified the name and residential address of each of the Employees. Neither this email, nor the earlier email of 12 March, indicated that there had been any attempt to serve the Decision, as distinct from the Order, on any of the Employees.

[19] That same day, Lend Lease filed a notice of discontinuance of its s.418 application pursuant to s.588 of the FW Act. In response to a query from the Senior Deputy President’s Associate, Lend Lease’s representative further indicated that Lend Lease applied for the Order to be revoked pursuant to s.603(2)(b). The Senior Deputy President later that day made a further order5 revoking the Order in the following terms:

[20] At no stage was there any hearing, formal or informal, concerning the making of the Order, the Decision, the order for substituted service or the revocation order.


[21] The appellants submitted that the Order was vitiated by jurisdictional error in two respects:

[22] On the basis of these jurisdictional errors, the appellants submitted that permission to appeal should be granted, the appeal upheld, and the order quashed. The appellants emphasised in this connection that, absent the Full Bench making such orders, they faced the risk of being subject to proceedings for civil penalties brought before a relevant court - if not by Lend Lease, then by a statutory enforcement authority.

[23] Lend Lease’s opposition to the appeal was put on a limited basis given that, as it frankly stated, it had no interest in the maintenance of the Order. It identified that there was a significant issue as to whether permission to appeal should be granted, having regard to the fact that the Order was no longer operative, that Lend Lease did not intend to take any enforcement action in respect of the Order, and that “there is no outstanding issue between the parties”6. Lend Lease also made submissions identifying, in the event that permission to appeal was granted, considerations relevant to the existence and the extent of the obligation to provide procedural fairness prior to the making of an interim order under s.420(2).

[24] The appellants and Lend Lease agreed in their submissions that the revocation order made by the Senior Deputy President under s.603 of the FW Act on 13 March operated prospectively, and did not affect the operative status of the Order from when it was made on 11 March until the revocation order was made on 13 March. We accept that that was the effect of the revocation order made in this particular case.

[25] We also note the important concession which was made by Lend Lease in the course of its submission, namely that had it been heard by the Senior Deputy President on 11 March as to whether an interim order was required to be made at that time, it could not have submitted that the statutory pre-condition for the making of such an order, namely that its application was unable to be determined within two days after the making of the application, was satisfied. For the reasons expressed later in this decision, we think that this concession was properly made.


[26] Section 420 forms part of a statutory scheme contained in Part 3-3 Division 4 of the FW Act under which the Fair Work Commission has obligations to make orders stopping or preventing the organisation of or engagement in non-protected industrial action in specified circumstances. For present purposes, it is only necessary to set out s.418 and s.420 in that scheme:

[27] Section 418, when read together with s.420, is “a remedy that is clearly intended to be available at short notice to deal with unprotected industrial action”.7 The obligation upon the Commission in s.420(1) to determine an application for orders under s.418 within two days so far as practicable underlines the legislature’s intention that the Commission is to act quickly and effectively in relation to such industrial action in response to an application made by any person in the categories identified in s.418(2)(b). Section 420(2) “backstops” this position by requiring the making of an interim order in identified circumstances.

[28] With respect to s.420(2), it is clear that a conclusion by the Commission that it is unable to determine an application within the two day period specified in s.420(1) is a condition precedent for the making of an interim order. Absent such a conclusion, the Commission is under no duty, and has no power, to make an interim order. Counsel for Lend Lease in his submissions characterised the nature of the required conclusion as being one of a finding of jurisdictional fact, and we are inclined to think that this is correct. The alternate view might be that the conclusion that is required is in the nature of the formation of an opinion or the reaching of a state of satisfaction, but, as counsel for the appellants pointed out, there is no express language to this effect in s 420(2), in contrast to other provisions of the FW Act which use express language such as, for example, s.420(3) (“if the FWC is satisfied”) and s.423(2) (“FWC must be satisfied”).

[29] If the condition precedent to the making of an interim order under s.420(2) does indeed involve the determination of a question of jurisdictional fact, then that is not a matter of discretion. It is a question which “allow[s] for only one correct answer ... either yes or no”. 8 Therefore in an appeal under s.604 of the FW Act from a finding of jurisdictional fact, the Full Bench must be concerned with whether the decision-maker at first instance reached the right conclusion as to the existence or otherwise of the jurisdictional fact, not simply with whether the challenged finding was reasonably open.9 Additionally, where the primary facts are not in dispute or have been determined by the first instance decision-maker, the Full Bench in such an appeal will apply the principle stated in Warren v Coombes10, namely that it is in as good a position as the decision-maker to decide on the proper inference to be drawn from those facts.11

[30] On the alternate possible characterisation of s.420(2) as requiring the formation of an opinion or the reaching of a state of satisfaction as to the Commission’s capacity to determine the application within the two day time period, it would be necessary for an appellant to demonstrate error of the House v The King12 type in order for a Full Bench to overturn a member’s finding at first instance about this matter.13

[31] We do not need in this case to express a concluded view as to the issue of the nature of the conclusion required by the condition precedent in s.420(2), because we are satisfied that on any approach the Senior Deputy President’s conclusion at paragraph [11] of the Decision that he could not “on a reasonable view determine the application ... within 48 hours” was in error. At the time the Senior Deputy President reached this conclusion, less than four hours had passed since the application had been made by Lend Lease. His Honour had earlier granted an order for substituted service, which allowed the Employees to be served with the application by way of an SMS text message. That having occurred, there was no reason we can identify why a hearing of Lend Lease’s application could not have occurred on the evening of 11 March, at any time on 12 March, and/or on the morning of 13 March.

[32] It is clear that the Senior Deputy President was concerned about the fact that the respondents to the application were 20 named individuals, and that they may not have been “able to give full attention to the application and its consequences within such a limited timeframe”.14 However, that did not justify the conclusion that the application could not be determined in the prescribed time period. It will always be the case that any respondents to a s.418 application have to expect that they will be called on to provide to the Commission their response to the application within a short timeframe, and with limited opportunity to consider their position and to obtain legal or other advice. As was stated by the Full Bench in CEPU and CFMEU v Abigroup Contractors Pty Ltd15:

[33] The above position applies, in our view, whether or not the employees the subject of a s.418 application are members of, or represented by, an organisation.

[34] If, once a s.418 application is called on for hearing, any employee respondents to the application fail to appear, or seek an adjournment for the purpose of preparing their case and/or seeking legal or other representation, or it becomes apparent to the Commission member hearing the matter that the employee respondents are in no position to properly respond to the application, then that may, depending on the circumstances, form the basis of a conclusion that the application cannot be determined in the required two day period. Even then the Commission may consider that the factual position is sufficiently clear to allow the application to be determined. But here, none of those circumstances had yet arisen, because there had been no hearing at which matters of this type could be ascertained. There was simply nothing before the Senior Deputy President to form the basis for a conclusion that the Employees would not be ready to respond to the application whenever it was called on for hearing. Indeed, the contact made by the CFMEU with the Commission with respect to Lend Lease’s application which we have detailed earlier was strongly indicative of a contrary conclusion.

[35] The Senior Deputy President also expressed the view that “it is of course not practicable for the Commission itself to contact each of the 20 relevant employees to determine their particular circumstances in relation to the application”.16 Whether this was practicable or not, it was certainly not necessary (let alone desirable) for the Commission to make individual contact with each of the Employees to ascertain his response to the matters raised by the application. The Senior Deputy President, having already made an order for substituted service, had only to have the matter listed for hearing within the prescribed timeframe. The application for substituted service had listed the mobile telephone number of each of the Employees, so there was no apparent difficulty in having any listing of the matter for hearing communicated to the Employees by the Commission; alternatively and in any event the Senior Deputy President could have ordered Lend Lease to communicate the listing to the Employees. Accordingly, this perceived difficulty identified by the Senior Deputy President formed no basis for the conclusion that the application could not be determined within two days.

[36] Accordingly, as at 11 March, the condition precedent for the compulsory exercise of power under s.420(2) did not exist. The Senior Deputy President had no power to make the Order.

[37] The result of the course taken by the Senior Deputy President was to deny the Employees procedural fairness. The well-established principle is that where a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice will regulate that power unless they are excluded by plain words of necessary intendment.17 The requirements of subsections (1) and (2) of s.420 may have the effect, in certain circumstances, of circumscribing the operation of the audi alteram partem rule of natural justice in respect of an application for s.418 orders. As the Full Bench said in Construction, Forestry, Mining and Energy Union v Hooker Cockram Projects NSW Pty Ltd18:

[38] The critical question, as the Full Bench identified in the above decision, is “what does the duty to act fairly require in the circumstances of the application”?19

[39] The circumstances which pertained on the evening of 11 March, which we have earlier described and analysed, were not such as to require or permit the deprivation of any capacity on the part of the Employees to be heard in relation to Lend Lease’s application. In relation to the making of an interim order under s.420(2), the course adopted by the Senior Deputy President meant that the Employees were deprived of an opportunity to make submissions about two essential matters - the first being whether the substantive application could be heard in the two day period, and the second being whether the making of an interim order would be contrary to the public interest and thus not permitted under s.420(3). On the material before us, it is apparent that there were substantive submissions which the Employees could have made as to both matters. As to the first, the Employees could simply have put that they were ready to proceed to a hearing of the application forthwith so as to permit it to be determined in the two day period. On the basis of Lend Lease’s concession referred to earlier, such a submission would not have been contested. As to the second, the Employees could have submitted that, on the basis that industrial action had ended and was not going to resume, it was against the public interest to make such an order. The Senior Deputy President ultimately may not have accepted such submissions if they had been made. But the point is that the Employees were deprived of the possibility of a successful outcome by not being given the opportunity to make any submission about the making of an interim order.20

[40] The denial of procedural fairness to the Employees constituted a further instance of jurisdictional error.21

[41] We would add two further observations about the matter. Firstly, the fact that Lend Lease’s application was never listed for hearing at any time before it was discontinued on 13 March makes it difficult to conclude that the Commission’s obligation under s.420(1) to determine, if practicable, the application in two days was satisfied.

[42] Secondly, a further result of the course taken by the Senior Deputy President was that at the time he made the Order, he had no material before him to support the proposition that industrial action was happening, or was threatened, impending or probable, or was being organised, apart from the bare allegations contained in Lend Lease’s application. There is a real question as to whether the Commission requires some level of satisfaction as to these matters before it can make an interim order under s.420(2). This question was not the subject of any substantial debate in the hearing of this appeal, although counsel for Lend Lease did submit that the Commission would need to satisfy itself that there was a “serious question to be tried” as to the existence of any actual or potential industrial action. The question arose in Construction, Forestry, Mining and Energy Union v Hooker Cockram Projects NSW Pty Ltd, but the Full Bench did not find it necessary to decide it.22 Likewise, it is not necessary for us to decide it in this appeal. Nevertheless, without determining whether some level of satisfaction as to the existence of actual or potential industrial action is a jurisdictional precondition to the exercise of power under s 420(2), we would indicate that, if circumstances permit, it would at least be highly desirable for the Commission to be satisfied that there is a prima facie case or a serious question to be tried as to this matter. Otherwise, there is the risk of interim orders being made which are futile because there is in reality no actual or potential industrial action to which they can apply. As was stated in Transport Workers’ Union of New South Wales v Australian Industrial Relations Commission23, the making of futile orders of this nature bears the danger of bringing the Commission and the statutory scheme into disrepute.


[43] In the light of the above conclusions, there remains the question of what orders should be made in respect of the appeal. Lend Lease, as earlier stated, has submitted that permission to appeal should be refused because the Order was revoked on 13 March and, so far as it was concerned, it did not propose to take any action under the FW Act against the Employees with respect to any issue concerning non-compliance with the Order. However, there are a number of matters that were raised by the appellants which we consider must be given significant weight:

(3) Although in any enforcement proceedings against the Employees it would be open to the Employees to mount a collateral challenge to the validity of the Order, the Employees should not be put to that potential expense and inconvenience where the lack of power to make the Order has been demonstrated in this appeal.

[44] We accept the submissions of the appellants as to the relief to be granted in the appeal. The appellants’ jurisdictional challenge to the Order has been sustained. There is no good reason to maintain the Order, which we have found to have been made beyond power, and there is potential utility in quashing it. Accordingly we make the following orders:



R. Reitano of counsel with T. Roberts for the Appellants

A. Gotting of counsel for the Respondent

Hearing details:



24 April.

1 PR534722

2 [2013] FWC 1527

3 At [14]

4 At [17]

5 PR534777

6 Lend Lease’s written submissions paragraph 1.

7 CEPU and CFMEU v Abigroup Contractors Pty Ltd [2013] FWCFB 453 at [29]

 8   Public Service Association of South Australia Incorporated v Industrial Relations Commission of South Australia [2012] HCA 25; (2012) 86 ALJR 862 at [31] per French CJ.

 9   Pawel v Australian Industrial Relations Commission [1999] FCA 1660, (1999) 97 IR 392 at 395 [14] per Branson and Marshall JJ

 10   (1979) 142 CLR 531 at 551 per Gibbs ACJ and Jacobs and Murphy JJ

 11   Ms Tamicka Louise Dover-Ray v Real Insurance Pty Ltd [2010] FWAFB 2670 at [27] is an example of this approach being taken to an appeal involving a challenge to a finding of jurisdictional fact.

12 (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ

13 Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 at 205 [20]-[21] per Gleeson CJ and Gaudron and Hayne JJ

14 Decision at paragraph [6]

15 [2013] FWCFB 453 at [30]

16 Decision at [7]

17 Annetts v McCann (1990) 170 CLR 596 at 598 per Mason CJ, Deane J and McHugh JJ

18 [2011] FWAFB 3658 at [18]

19 Ibid

20 See Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147

21 For the reasons explained by Kirby J in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 at 491 [71].

22 [2011] FWAFB 3658 at [15]

23 (2008) 171 IR 84 at 96 [18] per Gray and North JJ

24 See FW Act s.539 item 15

25 Cf. Transport Workers’ Union of New South Wales v Australian Industrial Relations Commission (2008) 171 IR 84 at 110 [60] per Gray and North JJ and 112 [67] per Gyles J.

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