CFMEU v Oakdale Sydney Construction Pty Ltd

CFMEU v Oakdale Sydney Construction Pty Ltd - [2008] NSWIRComm 1081 - NSWIRComm 2008 case summary — Zoe

[28]

18 Applications made out of time Section 213 (4) of the Act is expressed in the following terms: The Commission may accept an application that is made out of time if the Commission considers there is sufficient reason to do so, having regard in particular to: (a) the reason for, and the length of ,the delay in making the application, and (b) any hardship that may be caused to the applicant or other party if the application is or is not rejected, and ( c) the conduct in relation to which the order is sought. 19 In deciding whether to exercise its discretion to allow an out of time application, the Commission must be satisfied that a "sufficient reason" has been made out. Consistent with each case being decided on its own facts and circumstances, the term sufficient reason is not defined in the Act. 20 When one compares section 85(3) and section 213(4) of the Act it is readily apparent that they are almost identical in terms. That being so, I am of the view that consideration of section 213(4) may be had by reference to the authorities on the general powers of courts to accept out of time applications. 21 An authoritative judgment on the principles in respect to the setting of time limits and the Commission's discretion to waive time limits is found in Brisbane South Regional Health Authority v Taylor, 186 CLR 541 where McHugh J said at p551: The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates"… and at p552: The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost (26). Second, it is oppressive, even "cruel", to a defendant to allow an action to be bought long after the circumstances, which gave rise to it, have passed (27). Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them (28). Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period (29), as the New South Wales Law Reform Commission has pointed out (30)…

[29]

and at p553 …In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s. 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced". (35) But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires the extension. 22 More recently, a Full Bench of this Commission said in Hurrell and Queensland Cotton Corporation Limited [2003] NSWIRComm 139: 12] Having made that observation, a lack of knowledge of the 21 days time limitation specified in s 85(1) of the Act may well be a relevant consideration in determining whether to accept an application out of time. A failure to consider or to give any weight to such evidence may well amount to a failure to have regard to evidence relevant to essential aspects of the exercise of discretion. The discretion to accept an application out of time involves balancing a range of considerations, including an applicant's ignorance of the relevant time limit, whether an applicant has an arguable case and the applicant's prospects of success. In Griffith Ex-Services Club Limited v Federated Liquor and Allied Employees Union of Australia (NSW Branch) on Behalf of Vian (1993) 51 IR 186, the Full Commission considered the predecessor provisions to those now contained in s 85 of the Act concerning late applications for relief from unfair dismissal (see s 246(3) - (4) of the Industrial Relations Act 1991) in this way: Those subsections, in our view, are procedural and expressly grant the Commission the discretion to allow the lodgement of applications beyond the 21 days prescribed in s246(2). The applicant employee carries the burden of showing why the Commission should exercise its discretion to grant such an extension: Lucic v Nolan (1982) 45 ALR 411 at 416. The discretion, however, requires the formation of the view that there is a "sufficient reason". Factors going to the formation of a view of a sufficient reason are outlined in s256(4)(a) to (d). It is not appropriate to formulate any definition of what constitutes a "sufficient reason": see Martin v Nominal Defendant (1957) 74 WN (NSW) 121. However, the evidence of the proceedings before the Commissioner was relevant to be considered pursuant to the statutory requirements in regard to the formulation of the view. 13] Similarly, in Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at 6, in the context of an application for the extension of time to appeal, the Full Commission emphasised the need to take all relevant factors into account in determining an extension of time application; see also the decision of Walton J, Vice President in Brady v Kennedy t/as "Sardines" (1999) 91 IR 258. In our view, the considerations discussed in those decisions are apposite to the exercise of discretion under s 85(3) of the Act. In particular, we would adopt the observations of the Vice-President in Brady, that "the ultimate exercise of discretion is governed by the requirements of justice in a particular case".

[52]

44 Evidence was given by Mr Esa Laukka and Mr Travis Dowling of the Company. 45 Mr Laukka stated that he is the Operations Manager for the Company. He would on nearly a daily basis contact Mr Dowling to discuss the progress of the Cooma project. When contacting Mr Dowling he would call him on Mr Dowling's company mobile phone. When he received phone calls from Mr Dowling he would see that Mr Dowling used the company mobile phone. 46 It was his evidence that he called Mr Dowling at 8.29am on 1 November at 2007 to get an up date on the Cooma site. During that phone call he told Mr Dowling to terminate Mr McCarthy after being assured by Mr Dowling that the work left to do on site could be handled by himself and the other tradesman, Mr Scott Cedelland who had accompanied Mr Dowling down to Cooma at the start of their work. On that day, three day labourers were also not required any longer. The Companies numbers went from 6 to 2 at the Cooma site. 47 He also advised that when he advised Mr Dowling to terminate Mr McCarthy he was unaware of the formation on the previous day of the safety committee at Cooma or its walk through on 1 November 2007 at the Cooma site, and the subsequent list of complaints that it believed had to be corrected, that had been passed onto Adco management. 48 Later on 1 November 2007 Mr Laukka received a phone call from Mr Dowling stating that Mr McCarthy would not leave the site and then another phone call from Mr McCarthy complaining about being terminated. He explained to Mr McCarthy that the job was winding down and that he only needed two persons to finish the job. Mr McCarthy said it was because he was on the safety committee. Mr Laukka replied that he didn't even know he was on the safety committee. 49 He stated that he could not remember the contents of the telephone conversation with Mr Green that he received on 1 November 2007 but it was not about Mr McCarthy. At what time that conversation took place he could not remember. 50 He stated that at the beginning of November 2007 both the Cooma and Queanbeyan jobs were winding down and workers numbers were being reduced. At the end of November 2007 Adco required some further work to be done which was unexpected and therefore two extra workers were required for a short period to clean up. 51 He said he received a phone call from Mr Green on 2 November 2007 complaining about Mr McCarthy being on site. 52 He also disagreed with the conversation as expressed in Mr McCarthy's statement that Mr McCarthy said took place on 2 November 2007. 53 Mr Travis Dowling stated that he commenced with the company as an apprentice in 2000 based in the Hunter region. When he completed his statement for these proceedings he was still working for the company, but now works for Weedon Brothers. 54 He said that he and another ex apprentice Mr Scott Cedelland travelled on the long weekend in June 2008 to commence work on the Cooma job. He was the supervisor on this job. He said that he communicated with Mr Laukka on a regular basis about how the job was going. When communicating with Mr Laukka he used his company mobile phone. 55 Mr Dowling stated that when Mr McCarthy approached him for a job he told him that they were on the third deck and just about finished. Mr McCarthy did some extra work at the Queanbeyan site. 56 Mr Dowling said he received a phone call from Mr Laukka early on 1 November 2007. He stated he was asked how the job was going and what he had left to do. He explained what he had left. He was asked if he could complete the work with only himself and Scott and he advised that they could.

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