The decision at first instance: a denial of procedural fairness?
118 It is well established that the members of the Fair Work Commission are obliged to observe procedural fairness in carrying out their functions under the Fair Work Act: Coal & Allied Services Pty Ltd v Lawler (2011) 192 FCR 78 at [25]. That obligation extends, in the absence of any express provision to the contrary, to the exercise of the Commission's powers under s 418: Transport Workers' Union of New South Wales v Australian Industrial Relations Commission (2008) 166 FCR 108 at [44].
119 Procedural fairness requires that the Fair Work Commission ensure that each party is given a reasonable opportunity to present his or her case: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] per Gaudron and Gummow JJ; Sullivan v Department of Transport (1978) 20 ALR 323 at 343 per Deane J. The Full Bench stated in [30] of its reasons that an application under s 418 of the Fair Work Act 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". That statement as it reads is erroneous, but the Full Bench went on to conclude in [33] that such a reasonable opportunity was in fact given so that its error may be irrelevant.
120 A refusal to grant an adjournment can constitute procedural unfairness: Bhardwaj at [40]. In Scott v Handley (1999) 58 ALD 373, the Full Court of the Federal Court held at 379-380:
For a judge to refuse an adjournment of the hearing of proceedings sought by the applicants on the day of the hearing on the basis that they are not in a position to proceed, and thereby to dismiss those proceedings, is a most significant step, not lightly to be taken. The refusal of an application for an adjournment may, in some circumstances, involve a denial of procedural fairness.
In the absence of demonstrable prejudice to the respondents, why, it might be asked, cannot an adjournment on appropriate terms adequately protect the interests of those parties?
121 The Full Court cited the following passage from the decision of the English Court of Appeal in R v Thames Magistrates' Court, Ex parte Polemis [1974] 2 All ER 1219 at 1223:
But of the versions of breach of the rules of natural justice with which in this court we are dealing constantly, perhaps the most common today is the allegation that the defence were prejudiced because they were not given a fair and reasonable opportunity to present their case to the court, and of course the opportunity to present a case to the court is not confined to being given an opportunity to stand up and say what you want to say; it necessarily extends to a reasonable opportunity to prepare your case before you are called on to present it. A mere allocation of court time is of no value if the party in question is deprived of the opportunity of getting his tackle in order and being able to present his case in the fullest sense.
122 In Sali v SPC Ltd (1993) 116 ALR 625, the majority of the High Court said at 628-629:
In Maxwell v Keun [1928] 1 KB 645, at 650, 657, 658, the English Court of Appeal held that, although an appellate court will be slow to interfere with the discretion of a trial judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party. That proposition has since become firmly established and has been applied by appellate courts on many occasions.
123 The minority judges in Sali at 635 cited the opinion of Asprey JA in Carryer v Kelly (1969) 90 WN (Pt 1) NSW 566 at 569 that:
An adjournment which, if refused, would result in a serious injustice to the party applying for it should only be refused if that is the only way that justice can be done to the other party.
124 Both the majority and minority judges in Sali indicated that the passages cited by them had to be qualified by the need to take into account the congestion of court lists and the development of modern case management, but did not otherwise cast doubt upon their continuing relevance and authority.
125 What will constitute a reasonable opportunity for a party to present his or her case in a given situation depends upon the whole of the circumstances, including the nature of the jurisdiction exercised and the statutory provisions governing its exercise: R v Conciliation & Arbitration Commission; Ex parte Angliss (1969) 122 CLR 546 at 552-553; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [26]. Procedural fairness requires that the statutory power be exercised fairly: that is, in accordance with procedures that are fair to each party in light of the statutory requirements, the interests of the parties and the interests and purposes, whether public or private, which the statute seeks to advance or permits to be taken into account as legitimate considerations: Kioa v West (1985) 159 CLR 550 at 585, per Mason J.
126 Section 418(1) of the Fair Work Act provides, relevantly:
(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:
(a) is happening; or
(b) is threatened, impending or probable; or
(c) is being organised;
the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.
Note: For interim orders, see section 420.
(2) The FWC may make the order:
(a) on its own initiative; or
(b) on application by either of the following:
(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;
(ii) an organisation of which a person referred to in subparagraph (i) is a member.
127 Section 420 provides, relevantly:
Application must be determined within 2 days
(1) As far as practicable, the FWC must determine an application for an order under section 418 or 419 within 2 days after the application is made.
Interim orders
(2) If the FWC is unable to determine the application within that period, the FWC must, within that period, make an interim order that the industrial action to which the application relates stop, not occur or not be organised (as the case may be).
(3) However, the FWC must not make the interim order if the FWC is satisfied that it would be contrary to the public interest to do so.
128 As the application in the present case was filed on the 3 September 2012, the two days described in s 420(1) ended at midnight on 5 September 2012.
129 Section 421(1) provides that a person to whom an order under ss 418, 419 or 420 applies must not contravene a term of the order. Section 539 allows a person affected by the contravention of s 421(1) or an inspector to apply for the imposition of a penalty upon the contravener.
130 Sections 418 and 420 recognise both the seriousness of the consequences for those affected by industrial action that is alleged to be unlawful and a need for expedition in hearing and determining the application. That recognition is reflected in the nature of the orders which the Fair Work Commission is empowered to make, by the requirement that it must make orders if the conditions of s 418(1) are met, and by the requirement in s 420(1) that, as far as practicable, the Fair Work Commission is to determine an application within two days after the application is made.
131 The two-day period within which an application is ordinarily expected to be heard and determined necessarily affects what constitutes a reasonable opportunity for the respondent to present its case. One consequence is that any adjournment of the application will be for a much shorter period than would be permitted in ordinary litigation.
132 Despite the need for expedition, s 420 recognises that it may not be practicable for an application to be determined within the two day period. One of the practicalities is the obligation to give procedural fairness to the respondent. The provision of a reasonable opportunity for a party to present its case may in the circumstances of the particular case mean that the application cannot be determined within the two days. The content of the requirement to give procedural fairness is then affected by the obligation of the Fair Work Commission under s 420(2) to make an interim order that the industrial action stop, not occur or not be organised, subject only to the public interest. The obligation to make an interim order exists regardless of the strength or weakness of the case and regardless of whether the respondent has had a reasonable opportunity to present a case against the making of such an order.
133 The legislation does not pursue expedition at all costs. The legislation does not make the determination of the application within two days a complete goal in itself, but requires that the period be taken into account and given weight in deciding what will be a reasonable opportunity for a party to present its case. Expedition does not trump procedural fairness.
134 The reasonableness of an opportunity to present a case must also be measured against the potential consequences to a party of an order made under s 418. The consequences may be significant. An order under s 418 is a final order. Such an order restricts the ability of persons to engage in conduct that they may assert is lawful conduct. It may force a person to provide labour, or it may compel an employer to provide work to employees. If a person contravenes an order under s 418, the person is liable to the imposition of a penalty pursuant to s 539.
135 An application under s 418 will almost invariably be brought at short notice. When a respondent seeks an adjournment, it will be necessary for the Fair Work Commission to consider whether an adjournment is necessary to give the respondent a reasonable opportunity to present his or her case and the length of any adjournment that is required for that purpose. The relevant factors will include the extent of the notice given, whether the application should have been anticipated and prepared for, the extent and nature of the material served and the allegations made, the seriousness of the consequences for the respondent, whether the applicant has delayed in bringing the application, the fact that the order under s 418 will be a final order and whether the applicant's position can be protected by an interim order if necessary.
136 On the other side, the relevant factors will include the circumstances of the industrial action, the seriousness of its consequences for the applicant and third parties, the urgency of the application, the legislative policy that the determination is ordinarily expected to be made within the two-day period and any prejudice to the applicant and third parties as a result of the adjournment.
137 When a court considers whether a tribunal exercising a statutory power has accorded a party procedural fairness, the court must place itself in the shoes of the tribunal to determine whether the procedure adopted was reasonable and fair: Kioa v West at 627 per Brennan J. What is reasonable and fair depends on the circumstances known to the tribunal at the time of the exercise of the power or the further circumstances which, had it acted reasonably and fairly, it would then have known: Kioa v West at 627 per Brennan J.
138 The lawyers for CEPU sought an adjournment for two days on the basis that, given the short service of the material, they required time to give proper consideration to a response to that material. The Senior Deputy President granted an adjournment for 30 minutes, indicating that a further request could be made if "someone is of concern that they need some small short further period of time to digest some particular materials". The Senior Deputy President was not prepared to grant any adjournment other than in the order of 30 minutes and then only to "digest" particular material. Later an adjournment of some 46 minutes was granted to allow the respondents to view video recordings that had been served, but that adjournment was wasted time for the CEPU, because upon the resumption, counsel for Abigroup indicated that the footage was not relevant to the case against the CEPU.
139 The CEPU had been served with Abigroup's application and two supporting statutory declarations about 2½ hours before the hearing commenced. The CEPU was not provided with prior notice that the application would be brought. While much of the material attached to Mr Gildea's statutory declaration had been served on the CEPU in the course of the Federal Magistrates Court proceedings during the previous week, Abigroup's solicitors had advised the CEPU that an interlocutory application would not be pressed, so that there seems to have been no particular reason to expect that such material would form the basis of a new application a few days later. In addition, the statutory declarations of Mr Gildea and Mr McCann contained significant and substantial new allegations. The lawyers for the CEPU were also served with three statutory declarations in the court room shortly before the hearing commenced, including significant new allegations resulting from statements made by Mr Lynch.
140 In order to properly present a defence to the application, the CEPU's lawyers would have been required to read all of the material, distil the allegations made against the CEPU and its members or those eligible to be its members and take instructions as to those allegations, including by allowing relevant witnesses to read the statutory declarations.
141 The following allegations relevant to the CEPU may be distilled from the statutory declarations relied upon by Abigroup:
On 7 August 2012, a large number of structural trades workers were standing outside the main entrance to the site. Mr Lynch and Gary O'Halloran (also a CEPU official), were standing at the entrance with officials of the CFMEU and BLF. Later that morning Mr Gildea was informed by an unnamed source that the services trades employees had left the site for a meeting with Mr Lynch and Mr O'Halloran. Mr Gildea was told by a named electrical contractor that his employees were going home because Mr Lynch and Mr O'Halloran had said words to the effect that: "we, your employer or Abigroup cannot guarantee your safety if you cross the picket line".
On 8 August 2012, Mr Lynch and Mr O'Halloran addressed a meeting of services trades employees and said that the issue was a CFMEU and BLF issue, not a CEPU issue. However, the CEPU was concerned for the safety of its members should they cross the picket lines and the CEPU could not guarantee that their members would not be exposed to bullying, harassment or intimidation if they attempted to do so.
On 10 August 2012, a number of services trades employees left the site. Mr Gildea was later advised by a named person that those employees had attended a meeting conducted by Mr Lynch and Jarrad Robinson, another CEPU organiser. At that meeting Mr Lynch and Mr Robinson had said that the CEPU did not approve of the current action being taken by the BLF and the CFMEU and that the site was open for work. They also said that the CEPU would not recommend that its members cross the picket lines due to concerns about harassment and bullying.
On 16 August 2012, Mr Gildea had a telephone conversation with Mr Lynch. In the course of that conversation Mr Lynch said words to the effect, "no-one can guarantee his members' safety going onto the site" and there were "a lot of dark corners on the site".
On 16 August 2012, Mr Gildea saw approximately 200 workers congregated outside the site. They split up according to their trades. The services trades employees were addressed by Mr Lynch. Mr Gildea was told by an unnamed source that Mr Lynch said that the site was open for work, but that no-one could guarantee the workers' safety if they crossed the picket lines and that there would be another meeting the following Friday. After they were addressed by Mr Lynch, the services trades employees went home.
On 16 August 2012, Mr Lynch made the comments set out at [102] of this judgment.
On 17 August 2012, approximately 80 to 100 services trades workers showed up for work, but did not go onto the site past a group of people standing near the main entrance (apparently manning a picket). The electrical workers were addressed by Mr Lynch and then went home. Mr Gildea understood that the plumbers had a meeting where they were addressed by Mr Robinson of the CEPU and then they went home.
On 20 August 2012, Mr Gildea was told by an unnamed source that a meeting had been organised between the employees of the plumbing subcontractors and the State Secretary of the CEPU, and he was later told by an unnamed source that the plumbing trades employees had left the site at 6.30 am to travel to the CEPU office at South Brisbane.
On the same day a large majority of the workforce left the site and had a meeting in Southbank. Mr Lynch of the CEPU attended the meeting.
On 27 August 2012, Mr Gildea was advised by an unnamed source that plumbers were gathering and would attempt to return to work. Mr Gildea saw a group of plumbers congregated outside the site in a separate group from the electricians. He saw Mr Lynch, Mr Ong and Mr Bateman, who were with the electrical trades section of the CEPU, standing about 1 - 2 metres away from the plumbers with their arms folded. Mr Gildea stated, again on the basis of information given by an unidentified source, that once the other workers became aware that the plumbers may attempt to return to work, a large number of other workers gathered nearby and the plumbers were addressed by Bob Carnegie of the BLF. Mr Lynch, Mr Ong and Mr Robinson were present. The plumbers did not attempt to return to work. The implication of Mr Gildea's observations was that there was intimidatory conduct on the part of Mr Lynch, Mr Ong and Mr Robinson which contributed to the plumbers not returning to work.
After Mr Carnegie had addressed the plumbers on 27 August 2012, he addressed workers who were members or eligible to be members of the CFMEU and BLF. Mr Gildea says that he was told by an unnamed source that Mr Ong said words to the effect that the industrial action could go on for weeks.
On 28 August 2012, there was a meeting of approximately 100 workers outside the QCH site. From Mr Gildea's observations the workers gathered were from both the services trades (electricians, plumbers and so on) and the structural trades. The workers then walked up Vulture Street and Mr Gildea assumed that they were walking towards Abigroup's head office. Later the protestors returned to the street outside the QCH Project and chanted various words and slogans.
On 28 August 2012, Mr McCann observed a rally of workers and union officials outside the QCH site. The union officials amongst the crowd included Mr Lynch and Mr Ong. The inference sought to be made by Mr McCann was that the CEPU officials were supporting the rally.
On 30 August 2012, Mr Gildea was told by an unnamed source that a group of approximately 140 workers was addressed by Mr Lynch, Mr Bateman and Mr Carnegie. The workers were said to have been advised that Abigroup and the unions were meeting later that day and that "there was an intent to sign by Abigroup" (suggestive of a dispute between Abigroup and CEPU that was about to be resolved).
On 30 August 2012, Mr Gildea was told by a named source that demands had been made for his electrical workers to be paid holiday pay and RDOs for the period of industrial action of the last few weeks and that those demands had been repeated to the source by Mr Lynch.
On 3 September 2012, Mr Gildea was told by a named source that the plumbers had been called to a meeting at the CEPU office. Mr Gildea was later told by another named source that Mr Lynch and Mr Bateman had addressed a group of workers near the front of the project site. There were a number of union delegates present at the site that morning including CEPU organisers, Mr McKenzie, Mr Lynch and Mr Bateman.
142 These allegations were extensive and covered a number of incidents over a period of nearly a month. They were found within some 350 pages of material and were scattered amongst numerous allegations concerning the CFMEU and the BLF. The task of reading that material and distilling the allegations against the CEPU would not have been an easy or quick one, even for experienced lawyers.
143 In order for the CEPU to meet Abigroup's case, it required instructions about the allegations from at least the organisers against whom particular allegations were made. The CEPU did not have an adequate opportunity to obtain instructions from potential witnesses. This affected the ability of the lawyers to present a case by cross-examining Abigroup's witnesses and calling evidence of their own. Ms Rodgers was able to obtain some brief instructions over the telephone from one of them, Mr Lynch, concerning the specific comments attributed to him by an unnamed source in the second statutory declaration of Mr McCann. But it is apparent that Mr Lynch did not have access to the statutory declaration to be able to place in context the allegations about comments he was alleged to have made more than two weeks earlier. There were a number of other allegations made against Mr Lynch in the material that were not addressed.
144 The CEPU sought an adjournment for two days. It was open to the Senior Deputy President to grant an adjournment for that period and any prejudice to Abigroup as a result of the adjournment could have been minimised by the grant of an interim order. However, the Senior Deputy President was also entitled to take into account factors including the two day period under s 420(1) and, in our view, it was open to him to refuse an adjournment for the period sought.
145 The Senior Deputy President did allow the CEPU two short adjournments totalling 76 minutes. Yet the CEPU had been served with voluminous material some 2½ hours before the commencement of the hearing and further material only minutes beforehand. As we have said, a reasonable opportunity for the CEPU to present its case required an adjournment for such a period as would have allowed the CEPU's lawyers sufficient time to read all the material, distil the allegations against the CEPU, and seek instructions from the relevant witnesses so as to allow the CEPU's lawyers the opportunity to cross-examine Abigroup's witnesses and call evidence. The time available between service of the material and the commencement of the hearing and during the short adjournments granted by the Senior Deputy President was insufficient to allow that to occur.
146 That is not to say that the urgency of the application could or should have been ignored, but it must be remembered that the earliest allegations in the statutory declarations that the CEPU was organising industrial action and that its members or persons eligible to be its members were taking industrial action dated back to 7, 8 and 10 August 2012 and there were further allegations relating to conduct on 16, 17 and 20 August. Abigroup had not moved with urgency in bringing an application under s 418 of the Fair Work Act against the CEPU, its members and those eligible to be its members. There was no good reason why the hearing could not have been adjourned at least to the following day.
147 It must also be borne in mind that the allegations made by Abigroup against the CEPU and its members and those eligible to be its members were not the same as the allegations made against the CFMEU and the BLF and their members and persons eligible to be their members. Orders had previously been made against the CFMEU and the BLF by the Fair Work Commission and the Federal Magistrates Court. The previous order made under s 418 against the CFMEU was to expire on the day of the hearing and this was one of the factors that influenced the Senior Deputy President to grant only the short adjournments. The circumstances to be considered in deciding what period of time would give the CEPU a reasonable opportunity to present its case were different. Yet the CEPU was granted only the same short adjournments as those granted to the CFMEU.
148 In our opinion, the minimum necessary to afford the CEPU a fair hearing would have been to adjourn the hearing to the following day.
149 Abigroup argued that the short adjournments in fact granted by the Senior Deputy President were adequate to give the CEPU a reasonable opportunity to present its case. Abigroup argued that this was demonstrated by the fact that the CEPU's counsel was able to make objections to Abigroup's evidence, call evidence from Ms Rogers and make detailed submissions. The CEPU did not dispute that it had an opportunity to present a case - its complaint was that it did not have a reasonable opportunity to do so. The substance of its complaint was that it did not have an adequate opportunity to take instructions from and call witnesses. While it was able to call Ms Rogers to give evidence as to a telephone conversation with Mr Lynch related to one of the allegations made against him, it is apparent that the instructions were only able to be taken briefly over the telephone and without Mr Lynch being able to read the statutory declaration to give context to the statements attributed to him over two weeks earlier. The fact that the CEPU had an opportunity to present a case does not mean that it had a reasonable opportunity to do so.
150 Abigroup argued that the adjournments granted by the Senior Deputy President were adequate in circumstances where the CEPU's lawyers did not state that they wanted to contact witnesses other than Mr Lynch. However, the CEPU's counsel had asked for an adjournment so that proper consideration could be given to the CEPU's response to the material served upon it. In a context where the material contained numerous allegations against various CEPU organisers, it was obvious that the CEPU would need instructions from all those organisers. Otherwise Abigroup's evidence would be uncontradicted. The CEPU's counsel made it plain that he did not have instructions which would enable him to cross-examine Abigroup's witnesses. The Senior Deputy President cannot be taken to have been unaware of the ordinary exigencies of litigation such as the need to take instructions from the organisers against whom allegations central to Abigroup's case had been made.
151 It follows that the CEPU was denied procedural fairness and the Full Bench erred in holding otherwise. A denial of procedural fairness is a jurisdictional error: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 ("Aala") at [5], [41], [142], [169], [210].