Fair Work Act 2009

s.604 - Appeal of decisions

Construction, Forestry, Mining and Energy Union

Appeal against decision [2017] FWC 6709 of Commissioner Saunders at Newcastle on 14 December 2017 in matter number RE2017/1202; permission to appeal granted; appeal upheld; decision varied to remove condition.

[1] On 19 February 2018 we delivered a decision ex tempore, which is recorded in transcript, granting permission to the Construction, Forestry, Mining and Energy Union (CFMEU) to appeal a decision[1] (Decision) of Commissioner Saunders, imposing a condition pursuant to s.515(1) of the Fair Work Act 2009 (Cth) (Act) on a right of entry permit issued to its official, Mr Martin Wyer (Mr Wyer).

[2] In addition, we determined to uphold the appeal on the procedural fairness ground advanced in the Notice of Appeal. On a rehearing we accepted an undertaking proffered which was to the same effect as the permit condition the subject of the appeal and we concluded that a condition was unnecessary in the circumstances. Accordingly, pursuant to s.607(3)(a), we varied the Decision so that the permit issued to Mr Wyer is unconditional. These are the reasons for our decision.

[3] Mr Wyer, an organiser employed by the CFMEU, held an entry permit which was issued on 17 December 2014. The expiry date of that permit was extended by Commissioner Saunders on 7 December 2017[2] until the primary application for an entry permit was determined.

[4] On 14 December 2017, the Commissioner determined in the primary application that Mr Wyer was a fit and proper person to hold an entry permit. However, he considered that, having regard to the seriousness of allegations concerning Mr Wyer pending determination in the Federal Circuit Court, he would impose a condition on Mr Wyer's permit to the following effect:

If any finding of a contravention of the Act is made or any penalty is imposed in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union & Ors SYG332/2016 in relation to Mr Wyer's conduct, then Mr Wyer is to notify the Fair Work Commission in writing within 2 weeks of the finding being made or the penalty being imposed.[3]

[5] By its Notice of Appeal lodged on 21 December 2017, the CFMEU sought permission to appeal and appealed the Decision.

[6] In its Notice of Appeal, the CFMEU raise three grounds of appeal as follows:

1. The Commissioner erred in imposing a condition on the entry permit issued to Martyn Wyer that if any finding of a contravention of the Act is made or penalty imposed in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union & Ors SYG332/2016 (Federal Circuit Court Proceedings) in relation to Mr Wyer's conduct, then Mr Wyer is to notify the Fair Work Commission in writing within 2 weeks of the finding being made or the penalty being imposed (Reporting Condition), as, properly construed, s 515(1) of the Act does not permit such a condition being imposed on an entry permit.

2. The Commissioner erred in law in imposing the Reporting Condition in circumstances where he had determined not to accord the Federal Circuit Court Proceedings any weight in determining whether Mr Wyer was a fit and proper person to be issued an entry permit.

3. The Commissioner denied the Appellant procedural fairness in not notifying the Appellant that he proposed to impose the Reporting Condition and allowing the Appellant an opportunity to be heard in respect to the imposition of the Reporting Condition.

[7] The CFMEU's contentions in support of these grounds can be shortly summarised.

[8] As to the first ground of appeal, the CFMEU contends that, having regard to the decision in The Maritime Union of Australia v Fair Work Commission,[4] the Commissioner erred by misapplying the discretionary power in s.515(1). It says that the Commissioner was satisfied that Mr Wyer was a fit and proper person to be issued a permit and held that the permit should be issued to him. However, by not discerning any deficiencies or reservations in relation to Mr Wyer's propriety, there was no justification for exercising the discretionary power afforded under s.515(1) to impose a condition.[5] Consequently, the CFMEU contends that the Commissioner misconceived and misapplied the law and fell into jurisdictional error by imposing such condition.[6]

[9] During oral submissions the CFMEU indicated that it would not be developing further the argument regarding the absence of authority to have imposed the condition that the Commissioner did, but it would contend that the Commissioner misapplied the test.[7]

[10] As to the second ground, the CFMEU submitted that by proceeding to consider the Federal Circuit Court Proceedings where it was determined that they were untested and unproven, the Commissioner took into account extraneous or irrelevant consideration when exercising discretionary power in s.515(1).[8]

[11] The CFMEU advanced that such matters '...should not have been taken into account in assessing whether to impose a condition on the permit the Commissioner had concluded should be issued to him'.[9] By basing the condition solely on the Federal Circuit Court Proceedings it was argued that the Commissioner erred in a manner identified in House v The King.[10]

[12] Lastly, the CFMEU contended that given the significant implications on both the CFMEU and Mr Wyer in respect of the condition imposed, the Commissioner denied the CFMEU and Mr Wyer procedural fairness in failing to provide an opportunity to be heard in respect of the condition imposition.

[13] The CFMEU submitted that neither it, nor Mr Wyer, was given any notice that the Commissioner was contemplating imposing a condition on Mr Wyer's permit. Further, an opportunity to make submissions about whether a condition should be imposed was not afforded[11] and the opportunity to proffer an undertaking directed to the concern to which the condition was directed was denied.[12]

[14] The CFMEU contended that the contemplated imposition of the condition should have been disclosed to Mr Wyer and the CFMEU so it could be heard.[13] It said that 'members of the Commission have previously notified the parties of their provisional views of the nature of conditions that could be imposed on permits to ameliorate concerns or reservations that an official is not a fit and proper person so that parties may have the opportunity to make submissions before orders are made'.[14] It said that this was the approach that the Commissioner should have followed.[15]

[15] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission's powers on appeal are exercisable only if there is error on the part of the primary decision maker[16]. There is no right to appeal and an appeal may be made only with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is in the public interest to do so. Permission to appeal may otherwise be granted on discretionary grounds.

[16] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused.[17]

[17] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of an appealable error.[18] However, the fact that a member of the Commission at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[19]

[18] In the instant case, we are persuaded that ground 3 of the Notice of Appeal discloses an arguable case of appellable error. We are also persuaded that grounds 2 and 3 of the Notice of Appeal enliven the public interest. We therefore grant permission to appeal.

[19] We turn then to consider the appeal.

[20] The essential point made by grounds 1 and 2 is that a decision to impose a condition on an entry permit at the time of its issue, is undertaken together with a consideration of the permit qualification matters in respect of the overall assessment of whether a proposed permit holder is a fit and proper person to hold an entry permit. It follows that once a decision that a proposed permit holder is a fit and proper person to hold an entry permit has been made, there is no power to impose a condition and by doing so in this case the Commissioner erred.

[21] On the face of the Decision, the Commissioner appears to have been satisfied the proposed permit holder, Mr Wyer, was a fit and proper person to hold an entry permit. Having so concluded, the Commissioner thereafter proceeded to impose the Reporting Condition.

[22] We recognise there is some force to the submissions made by the CFMEU, however, absent a contradictor and given our conclusion as to ground 3 (see further below), we consider that it is neither necessary nor desirable to deal with the issue raised. We therefore do not express a concluded view on the matter.

[23] Ground 3 of the appeal raises a denial of procedural fairness, namely the Commissioner's failure to notify the CFMEU and Mr Wyer that he proposed to impose, that which in the Notice of Appeal is referred to as the 'Reporting Condition'. Consequently the Commissioner did not afford the CFMEU or Mr Wyer an opportunity to be heard in respect of the imposition of the Reporting Condition.

[24] It is plainly the case that if a decision-maker intends to dispose of an application in a manner that is adverse to the interests of a party to the proceeding by reference to some consideration which was not agitated before the decision-maker, then the decision-maker is required to give that party an opportunity to respond to that consideration before the decision-maker decides a matter. This is just another way of illustrating the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that the person may have an opportunity of dealing with it.[20]

[25] It is uncontroversial that the Commissioner did not advise the CFMEU or Mr Wyer that he was considering imposing the Reporting Condition and consequently denied both the CFMEU and Mr Wyer the opportunity to deal with that issue. There is nothing on the file of the Commission, nor on the face of the Decision suggesting the contrary. As the condition appears on the permit issued to Mr Wyer and requires Mr Wyer to take particular steps, providing the CFMEU and Mr Wyer an opportunity to respond was, in our view, reasonable. This ground of appeal is therefore made out.

[26] We are satisfied that in the circumstances that the Commissioner should have provided an opportunity to the CFMEU and Mr Wyer to respond to the proposed Reporting Condition and did not do so.

[27] We gave the CFMEU and Mr Wyer an opportunity to be heard in respect of the Reporting Condition. Mr Boncardo, Counsel for the CFMEU gave an undertaking, on instructions, in the following terms:

Mr Wyer will report to this Full Bench within 14 days any adverse outcome in the Federal Circuit Court Proceedings.

[28] He contended that the Reporting Condition is unnecessary in light of the undertaking. We agree. We are satisfied with the undertaking, which is to the same effect as the Reporting Condition. The need for any condition on the right of entry permit is therefore obviated.

[29] For the reasons stated, we order as follows:

1. Permission to appeal is granted in respect of grounds 2 and 3 of the Notice of Appeal;

2. The appeal is upheld in respect of ground 3 and is otherwise dismissed;

3. The decision in [2017] FWC 6709 is varied by deleting paragraph 24; and

4. The permit issued to Mr Wyer on 14 December 2017 be returned and a new permit will be issued without a condition.

Mr P Boncardo, Counsel for the Construction, Forestry, Mining and Energy Union.

[1] [2017] FWC 6709

[3] [2017] FWC 6709 at [24]

[4] [2015] FCAFC 56; (2015) 230 FCR 15

[5] Appellant's Outline of Submissions [10]

[7] Transcript, dated 19 February 2018 at PN6 - PN10

[8] Appellant's Outline of Submissions [14]

[12] Transcript, dated 19 February 2018 at PN73; see also Construction, Forestry, Mining and Energy Union - Robert Graauwmans [2016] FWC 4180

[13] Appellant's Outline of Submissions [18]

[16] Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47; (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ

[17] Also see CFMEU v AIRC [1998] FCA 1404; (1998) 89 FCR 200; and Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481

[18] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [30]

[19] Coal and Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78

[20] See for example Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 573, 587-588, 629, 634; Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389; (1991) 31 FCR 100 at 108-109; Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 517; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 481-482; Minister for Immigration, Local Government and Ethnic Affairs v Kumar (unreported, Federal Court, Davies, Foster and Hill JJ, 31 May 1990)

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