Fair Work Act 2009

s.604 - Appeal of decisions

Construction, Forestry, Maritime, Mining and Energy Union

Appeal against decision [2022] FWCG 54 of Murray Furlong at Melbourne on 6 September 2022 in matter number R2022/2

[1] Mr Graham George Young (the Appellant) has applied pursuant to s 604 of the Fair Work Act 2009 (Cth) (Act) for permission to appeal and, if granted, appeals a decision[1] of the General Manager of the Fair Work Commission, Murray Furlong (the General Manager), issued on 6 September 2022 (the Decision). The General Manager certified alterations to the rules of the Maritime Union of Australia (MUA Division) of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) (the Respondent) in accordance with s 159(1) of the Fair Work Registered Organisations Act 2009 (Cth) (RO Act).

[2] Briefly stated, the alteration of the Respondent's rules certified by the General Manager provided for the creation of two new full-time offices in the MUA Division, that of a Divisional Assistant National Secretary - Woman, and Divisional Assistant National Secretary - Aboriginal and Torres Strait Islander.

[3] In dealing with the application, the General Manager received a large volume of material from the Appellant on 8 February 2022[2] opposing the rules alteration on the basis that the process followed by the Respondent in securing endorsement of the rules alteration by its membership was not conducted in accordance with its rules. While not determining whether the Appellant would be affected by or have an 'interest' in the rules alteration,[3] the General Manager observed that Mr Young had raised questions about the matter and that in the circumstances it was "appropriate to entertain Mr Young's submission"[4]

[4] On 18 February 2022, the General Manager sent a copy of the Appellant's submissions and accompanying material to the Respondent.[5] The Respondent replied later that day stating that the Commission should not entertain the Appellant's submission and that the Respondent should not be obliged to reply to that material but would be happy to answer any questions the Commission may have.

[5] On 2 March 2022, the General Manager wrote to the Respondent[6] and, in doing so, set out the concerns raised by the Appellant and requested further information from the Respondent about the process followed by it in altering its rules. On receipt of the requested further material from the Respondent on 14 April 2022,[7] provided in the form of a Statutory Declaration completed by the Respondent's National Secretary Mr Padraig Crumlin,[8] the General Manager proceeded to determine the application before him.

[6] In determining whether the rules alterations had been promulgated and endorsed by the Respondents' membership in accordance with its rules, the General Manager accorded greater weight to the materials submitted by the Respondent than to the Appellant's material, which he described as "hearsay, unverified photographs said to be gleaned from websites and social media and his observations of the Sydney meeting."[9] The General Manager then concluded that on balance, the alteration of the Respondent's rules were in his opinion made in accordance with the rules of the organisation.[10]

[7] The notice of appeal sets out four grounds of appeal, those being that:

• the General Manager failed to consider the construction and application of Rules 20 & 21 of the MUA Divisional rules insofar as they applied to the convening of the in-person meetings conducted in the ports of Geelong, Hastings and Portland located in the state of Victoria;

• the General Manager failed to consider the particular circumstances of the meetings in Sydney and Melbourne conducted in-person and by video conference which were not such as to allow a "meeting of the minds";

• on the basis of the information referred to in the Statutory Declaration and attachments provided by the Appellant, the General Manager erred in concluding that 1357 attendees voted in favour of endorsing the proposed alterations to the MUA Division rules; and

• by reason of the foregoing grounds of appeal, the General Manager erred in concluding that alterations to the rules made by the National Council, were endorsed by the MUA Division's membership as required by the MUA Division rules.

[8] Section 604(1) of the Act confers standing to appeal a decision upon a "person who is aggrieved" by a decision. The Appellant and the Respondent contest whether the Appellant had standing to bring this appeal and, accordingly, this issue must be determined first. The authorities on the meaning of the term "a person who is aggrieved by a decision" are well established. In Right to Life Association (NSW) Inc v Secretary, Department of Human Services,[11] Lockhart J said the following in relation to the "person aggrieved" test for standing to apply for judicial review of a decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth):

"The applicant's interest must not be remote, indirect or fanciful. The interest must be above that of an ordinary member of the public and must not be that of a mere intermeddler or busybody. The ADJR Act has selected in ss. 5 and 6 as its criterion for standing the expression "a person aggrieved". The word "interest" is not used in ss. 3 and 5. The term a "person aggrieved" is not a restrictive one; it is of very wide import.

Plainly the applicant need not have a legal, financial or proprietary interest in the subject matter of the proceeding. The applicant must establish that he is a person who has a complaint or grievance which he will suffer as a consequence of the decision beyond that of an ordinary member of the public." [12]

[9] The approach of in Right to Life was referred to with approval by French CJ and Keane J in Argos Pty Ltd v Minister for Environment and Sustainable Development.[13] In Argos, Hayne and Bell JJ said about "a person aggrieved," the following:

"The focus of the inquiry required by the words is upon the connection between the decision and interests of the person who claims to be aggrieved. The interests that may be adversely affected by a decision may take any of a variety of forms. They include, but are not confined to, legal rights, privileges, permissions or interests. And the central notion conveyed by the words is that the person claiming to be aggrieved can show that the decision will have an effect on his or her interests which is different from (beyond) its effect on the public at large."[14] [Footnote omitted]

[10] The above approach, from which we do not intend to depart, has been followed by the Commission in assessing whether a person lodging an appeal is "a person who is aggrieved_"_ for the purposes of s 604(1) of the FW Act.[15]

[11] The Appellant contends that he is a "person aggrieved by the decision" as he was a party to the matter before the General Manager, this being revealed by the fact that his submissions and materials were considered by the General Manager in making the Decision. He further submits that he was denied procedural fairness as he was not given an opportunity to comment on or contradict the hearsay evidence referred to in the Statutory Declaration received from the Respondent and relied on by the General Manager. For the reasons that follow we reject the Appellant's contention that he is "a person who is aggrieved" by the Decision.

[12] First, the Appellant was unable to point to any legal rights, privileges, permissions or interests of his that would be affected by the Decision.

[13] Secondly, on the basis of the material before the General Manager, and now before us on appeal, the Appellant has been unable to establish that he has an interest in the matter that rises above that of an ordinary member of the public. While the Appellant states that he is a retired member and elected officer of the CFMEU,[16] the Respondent replies that the Appellant is not and has never been a member of the Respondent. This point was not subsequently contested by the Appellant and there is no material supporting the Appellant's bare assertion. In any event, former but not current membership of the CFMMEU gives the appellant no greater interest than that of a person who was never a member.

[14] Thirdly, the Appellant has been unable to demonstrate that he has a complaint or grievance that he will suffer as a consequence of the Decision that goes beyond that of an ordinary member of the public. Nor has he shown that the Decision will have an effect on his interests which is different from its effect on the public at large.

[15] Fourthly, contrary to the Appellant's contention, he was not a party to the matter before the General Manager. While his submissions and materials filed were received and considered by the General Manager and prompted the General Manager to seek further information from the Respondent, that does not establish the Appellant was a party to the matter. Plainly he was not. He was neither a member nor officer of the Respondent, a status that might otherwise have given him some standing in the matter before the General Manager. Moreover, the Appellant did not seek leave to intervene in the matter, much less was leave granted, nor were the submissions he made invited or sought by the General Manager. The Appellant had interest in the matter before the General Manager only in the sense that he was "curious," but he (and his interest) was otherwise unaffected by the CFMMEU's application or its outcome.

[16] Finally, the Appellant submits that, as he was denied procedural fairness in not being provided an opportunity to respond to matters dealt with in the Respondent's response material filed on 14 April 2022, that failure gives him standing to appeal the Decision. That submission is without merit. The Appellant conflates an asserted ground of appealable error (which is not found in his appeal grounds) with the requirement that he establish standing to appeal the Decision. Establishing the latter is necessary before the grounds of appeal may be considered. In any event, administrative decision-makers, including the General Manager must accord procedural fairness to those affected by decisions they make. That which is required is for the decision maker to ensure the decision is made fairly and is determined by reference to the circumstances of a given case having regard to the legal framework under which the decision is to be made.[17] As we have already noted, the appellant had no interest in the application beyond curiosity and he was unaffected by the application or its outcome. Considering the nature of the application and the legislative framework of the RO Act underpinning it, together with the circumstances in which the Appellant became involved in the application, the General Manager was not required to permit the Appellant to respond to the Respondent's materials subsequently filed in answer to questions posed by the General Manager in order to ensure that the Decision was made fairly in the circumstances.

[17] We accept that the meaning of the term "person aggrieved" has been assigned a broad meaning by courts and tribunals. However, the Appellant has simply been unable to establish that he has an interest, complaint, right or grievance about or related to the Decision that rises above that of an ordinary member of the public. Nor has he shown that the Decision will have an effect on his interests which is different from its effect on the general public. It necessarily follows that the Appellant is not a "person who is aggrieved" by the Decision within the meaning of s.604(1) of the Act, the appeal is not competent, and it is therefore unnecessary for us to engage with the grounds of appeal or the question of permission to appeal.

[18] The Appellant does not have standing to appeal the Decision as he is not a "person who is aggrieved" within the meaning of s.604(1) of the Act. The appeal will be dismissed.

[19] The appeal in C2022/6539 is dismissed.

Mr A. Neal of Counsel with Ms W. Carr for the respondent.

[1] [2022] FWCG 54.

[11] [1995] FCA 33, 56 FCR 50

[13] [2014] HCA 50, 254 CLR 394 at [48]

[15] See Cameron Fraser; Construction, Forestry, Maritime, Mining and Energy Union v JFM Civil Contracting Pty Ltd [2020] FWCFB 4866

[17] Minister for Immigration and Border Protection v WZARH [2015] HCA 40, (2015) 256 CLR 326 at [30], per Kiefel, Bell and Keane JJ

Printed by authority of the Commonwealth Government Printer