FEDERAL COURT OF AUSTRALIA

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148

THE COURT ORDERS THAT:

1.    A writ of certiorari issue to the Fair Work Commission removing into this Court the order made at Brisbane on 5 September 2012 in C2012/5149 recorded in PR528753 and quashing orders 3.2, 3.4 and 6.1 insofar as they apply to the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (“CEPU”) and order 6.2.

2.    A writ of certiorari issue to the Fair Work Commission removing into this Court the order made at Sydney on 25 January 2013 in decision [2013] FWCFB 453 insofar as it dismisses the CEPU’s appeal and quashing that order.

3.    A writ of prohibition issue to the Fair Work Commission prohibiting it from proceeding further on the decision and order made at Brisbane on 5 September 2012 in C2012/5149 insofar as it relates to the CEPU, its officers and members.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BUCHANAN J:

The present application

1    This is an application in the original jurisdiction of the Court. The questions for decision are whether Senior Deputy President Richards (a member of the Fair Work Commission) (“the FWC”) and a Full Bench of the FWC each committed jurisdictional error in the discharge of their respective functions under the Fair Work Act 2009 (Cth) (“the Act”).

2    In the case of the Senior Deputy President, the contention of the applicant (“the CEPU”) is that the Senior Deputy President denied the CEPU procedural fairness when he dealt with an application by the first respondent (“Abigroup Contractors”) which had sought orders that industrial action cease at a major project. In the case of the Full Bench, the argument is that the Full Bench committed a jurisdictional error, when it heard an appeal against the decision and orders of the Senior Deputy President, by applying the wrong test to the assessment of the challenge that the Senior Deputy President had denied the CEPU procedural fairness.

3    Although the application before this Court sought orders in the nature of certiorari to quash both decisions and a writ of prohibition directed against the FWC, it was accepted at the hearing that it would sufficiently vindicate the CEPU’s position (if its arguments were upheld) if the decision and orders of the Senior Deputy President, so far as they concerned the CEPU and its members, were quashed and if further proceedings on the decision or orders, so far as they concerned the CEPU and its members, were prohibited.

The application to the Fair Work Commission

4    The application to the FWC with which the Senior Deputy President dealt was made by Abigroup Contractors under s 418 of the Act. Section 418(1) provides:

418    FWC must order that industrial action by employees or employers stop etc.

(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.

5    Section 420 (1) and (2) of the Act direct the FWC in the following terms:

420    Interim orders etc.

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).

6    It is convenient, at this point, to draw attention to the fact that s 19 of the Act assigns a meaning to the term “industrial action” and provides for exceptions to the general meaning. Section 19(1) and (2) of the Act provide (relevantly here):

19    Meaning of industrial action

(1)    Industrial action means action of any of the following kinds:

(a)    the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b)    a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

(c)    a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

…

(2)    However, industrial action does not include the following:

…

(c)    action by an employee if:

(i)    the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and

(ii)    the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

7    As will be seen, in the present case it was claimed by the CEPU, in answer to the application under s 418, that its members were failing to perform their usual work because of concerns about their safety. No suggestion was made that alternative work was available or directed.

Background to the s 418 application

8    The application made by Abigroup Contractors under s 418 of the Act concerned industrial action at a construction site called the Queensland Children’s Hospital project (“the QCH”) in Brisbane. The industrial action included strikes and picketing. The Full Bench, in its decision, recorded the following matters:

Background and the decision under appeal

[3]    The QCH Project is a major public health asset project valued at approximately $800m. During the course of 2012 it has been subject to significant disruption from industrial action.

[4]    On 10 February 2012 Senior Deputy President Richards made orders under s.418 of the Act that industrial action on the site stop. Those orders expired on 1 March 2012. His Honour made further s.418 orders on 11 May 2012 that expired on 11 June 2012. On 6 August 2012, his Honour made a third set of orders that were expressed to apply until 5.00pm on 3 September 2012.

[5]    His Honour subsequently dealt with a large number of dispute notifications lodged by subcontractors in relation to stoppages at the site.

9    On 29 August 2012, the Senior Deputy President issued a statement which included the following:

[5]    I issued orders (in PR527575) on 6 August 2012 against various employees (of Abigroup and its subcontractors) who are members of the CFMEU who had ceased work on the site (including the related Energy Plant Project) at that time.

[6]    Proceedings designed to enforce the orders and for some wider purposes against the CFMEU were also initiated in the Federal Magistrates Courts, and an interim injunction remains in place, pending final trial (possibly in the new year).

[7]    Though Abigroup has declared the site open for work and safe, seemingly no work is being performed on a daily basis. Access to the three site entry points (the main entry site and two other smaller access points) appears restricted by congregations of persons, whose presence appears ensconced. The Applicants describe these as pickets.

[8]    It also appears the CEPU Divisions, while declaring the site open, have cautioned their members about the ramifications of seeking entry in these circumstances. It is not said, as I understand the applications, that the CEPU Divisions themselves have any physical role in restricting access to the site. Indeed, the CEPU Divisions contend they are in no dispute with the various employers (subcontractors).

[9]    The dispute is entering its fourth week.

[10]    A dispute of this duration is now generating entirely undesirable outcomes. The subcontractor businesses are facing significant commercial risk: with reduced cash flow repayments on plant and equipment are becoming more difficult. Some subcontractor businesses face closure. Skills are being lost to the businesses and to the site as trades seek alternative, secure employment. The completion of the hospital may be delayed.

[11]    The subcontractor businesses employ workforces of up to 110 employees, with the average being around 30-40 employees. It appears to me that a significant number of these employees who have been without wages face hardship and are in an increasingly financially distressed position. No doubt this is of concern to the employees’ representative organisations.

[12]    Productive work on the site needs to resume as quickly as possible.

10    It emerges sufficiently from this statement that the impression of the Senior Deputy President, at that stage at least, was that members of the CFMEU were not working, pickets were blocking access to the site and members of the CEPU were not picketing but were not working. It may be accepted from this and other material that members of the CEPU would not “cross the picket line”. There was an active contest in the proceedings before the Senior Deputy President about the reason for that.

Timing of the s 418 application

11    Abigroup Contractors was a principal contractor at the QCH. The application under s 418 of the Act was filed at about 11.30 am on Monday 3 September 2012. In accordance with s 420 of the Act, the FWC was required to deal with the application within two days unless it was not reasonably possible to do so, in which case an interim order was required to be made.

12    Because the direction in s 420 of the Act imposed a time limit stated in a number of days, it seems that the time limit would expire at midnight on Wednesday 5 September 2012 (see Acts Interpretation Act 1901 (Cth), s 36(2)). The Senior Deputy President may have thought that a period of only 48 hours was allowed and it may not have been a coincidence, therefore, that he gave his decision at about 11.30 am on 5 September 2012. Not much turns on this misunderstanding (if it occurred), although it may have contributed further to a sense of urgency in dealing with the application.

Proceedings at first instance in the Fair Work Commission

13    Solicitors for the CEPU received a first group of documents in support of the s 418 application at about 12.30 pm on 3 September 2012. They were documents which had been also provided to the CEPU on 28 August 2012 in connection with proceedings for injunctive relief in the Federal Magistrates Court of Australia. It should be noted, however, that the s 418 application filed on 3 September 2012 was the first such application which had sought s 418 orders against the CEPU, and the CEPU was given no prior notice that such orders would be sought at about that time.

14    Also at about 12.30 pm on 3 September 2012, the CEPU was notified that the s 418 application would be heard that day, commencing at 3 pm. When the CEPU’s representatives arrived at the premises of the FWC for the hearing, they were provided with further material by representatives of Abigroup Contractors.

15    When the hearing commenced, another union against which the s 418 orders were sought (“the CFMEU”) sought an adjournment until the morning of 5 September 2012 on the basis that the matter could still be determined within the two day period directed by s 420 of the Act, saying:

MR O’BRIEN: … Now the CFMEU would like to bring significant material to bear on the application that’s before you. We haven’t had an opportunity to put that together. There are lengthy submissions that we would like to make in this regard. We won’t be in a position to do that this afternoon. As I have said, there is no prejudice to the applicant’s position if the matter was to be adjourned until Wednesday morning. It is within your power to do so and still determine the matter within the two days as required by the Act. In those circumstances, your Honour, I would ask that the matter be adjourned until Wednesday morning.

16    The application was supported by the CEPU. Counsel said:

MR WHITE: … For our part, the CEPU, given the relatively [short] service and in fact the service whilst we’ve been in this court room of subsequent material on which we’ve had no instruction, we submit it’s appropriate that it be adjourned so that proper consideration to a response can be given.

17    Counsel for Abigroup Contractors conceded that a short adjournment could not be resisted but opposed an adjournment until 5 September 2012. Counsel asked to be allowed to put the case in support of the s 418 application, saying:

MR MURDOCH: What I would suggest, with respect, is that I be given the opportunity to read the application, read the material that’s relied on by way of evidence to enable the tribunal to [be] properly appraised of the material and to be properly [appraised] of the serious situation which is presently prevailing in relation to the Children’s Hospital site. Without the tribunal being fully appraised of the situation, I’d submit that it would be difficult for you to consider the application for adjournment. … But I emphasise, your Honour, that it would be inappropriate, I say that with respect, to rule on the adjournment application without our first having the opportunity to read the evidentiary material which discloses the depth and the breadth of the conduct being undertaken on behalf of the union respondents at the site.

18    Initially an adjournment of 30 minutes was afforded. A short time later a further 45 minutes was allowed to view some video footage, although it then transpired that it was not relevant to the CEPU.

19    By this time it had become clear that the CFMEU and the CEPU had different positions about the s 418 application. The CFMEU was already subject to a s 418 order which was to expire later that day. The CFMEU indicated that it would consent to an interim order if the matter was adjourned until 5 September 2012 and indicated that it did not suggest that industrial action by its members was not occurring.

20    The CEPU made it clear, however, that it did not accept that the absence from work of its members represented industrial action. This may be understood as a contention that members of the CEPU were failing to attend work out of concern for their safety. It became clear that the concern for their safety was because of a fear of reprisal if they crossed the picket line.

21    After the second adjournment, the Senior Deputy President indicated that Abigroup Contractors should put its case, saying:

THE SENIOR DEPUTY PRESIDENT: Mr Murdoch, I think you should open your case and run your evidence and we’ll see where it takes us.

22    After some formal objections to affidavit material (which objections were rejected), the representatives of the unions indicated they would not cross-examine the deponents of any affidavit, counsel for the CEPU saying:

MR WHITE: We are not in a position to be able to cross-examine, your Honour.

23    In one of the affidavits, a series of statements were attributed to an organiser of the CEPU (“Mr Lynch”) based on a hearsay account of statements allegedly made by an unidentified representative of a sub-contractor. This was amongst the material to which an unsuccessful objection was taken. To answer this hearsay material, an industrial officer of the CEPU was called to depose to a conversation with Mr Lynch that evening in which he provided a rebuttal of the statements attributed to him. Mr Lynch was said to be at home and to be unwell.

24    By this time, it appeared to be understood by the parties that no further adjournment would be granted. Although no further formal application for an adjournment was made, counsel for the CEPU, referring to suggestions that the evidence from the witnesses for Abigroup Contractors was essentially uncontested, said:

MR WHITE: … can I make another couple of general observations in relation to some opening observations of my learned friend. First, my learned friend submitted that the evidence was essentially uncontested and that the declarants were available for cross-examination.

Can we make a couple of observations in relation to that first, your Honour. We have submitted, and you will have seen from the late receipt of the material, that the submission is not so far fetched that we’re not in a position to cross-examine witnesses. Secondly, of course it is almost impossible sensibly to cross-examine witnesses who give hearsay evidence. Thirdly, in respect of any criticism of not cross-examining, you will note that we had sought, but were refused, an adjournment so that we were in a position to better respond.

25    Submissions were then taken about the evidence which had been placed before the Senior Deputy President. The proceedings adjourned just before 9 pm on 3 September 2012.

26    The decision was given at about 11.30 am on 5 September 2012. Orders were made against both the CFMEU and the CEPU and their members.

27    The Senior Deputy President was satisfied that some members of the CEPU had taken industrial action which was not the result of concern about safety. However, he could not exclude that explanation altogether and the orders he then made against members of the CEPU only applied to industrial action which was not “protected” industrial action. The orders in relation to members of the CEPU thus excluded action falling within s 19(2)(c) of the Act, namely action based on reasonable concern about an imminent risk to health and safety.

28    The Senior Deputy President said:

[8]    Generally, it further appears from Mr Gildea’s observations, a large gathering of workers across the structural and services trades assembles each morning (other than on rostered RDOs), and then disperse, with no work being performed.

[9]    It is difficult, however, on the evidence and the precision of those claims as made to identify that group sufficiently for purposes of an order so that those employees are distinguishable from those employees who are not performing work for reason of concerns for their safety and the inability to access the site owing to the presence at the various gates. More is needed before such time as I would make a stop order in the general terms as sought against employees of the subcontractors who are members of the CEPU (in either of its divisional guises). But having found that industrial action is happening and is being carried out by employees of the services trades who are members of or are eligible to be members of the CEPU, the Act requires that I must make a stop order as consequence.

[10]    I will make an order, therefore, in relation to the industrial action that is happening and will make that order so that it applies to those employees who are members of or are eligible to be members of the CEPU, and who are employees of the subcontractors to the Company who are taking industrial action that is not protected industrial action. The order is therefore somewhat self-limiting.

(Citation omitted.)

29    More significantly, however, the Senior Deputy President found that the CEPU had organised industrial action. That conclusion was based in part upon the hearsay attribution of remarks to Mr Lynch. The conclusions appear in the following paragraphs of the decision:

[27]    The evidence in this matter does not all lead in one direction. There is evidence that the CEPU at one point stated at a meeting of the service trades that it did not support the industrial action being carried out by the BLF and the CFMEU. At the same meeting I note the CEPU organisers concerned did not recommend that their members cross the picket line owing to concerns with the consequences of so doing.

[28]    On the evidence before me, however, the conduct of Mr Lynch, an organiser for the CEPU, moved beyond the simple communication of an observation made in the interest of public safety, that being the potential implications of crossing a picket line. Instead, Mr Lynch’s comments (being paragraphs (b) and (c) as cited earlier), when read together, constitute a communication the intent of which is to cause employees not to perform their duties in the ordinary manner and not to access their place of work for that very purpose. Indeed, Mr Lynch’s comments here may more appropriately characterise the actual intent of his other comments.

[29]    It also appears to me from the evidence that the CEPU generally is conducting itself over time in a manner that is intended directly to dissuade its own members (and others) from performing work in the ordinary manner and accessing the QCH site for that very purpose. At times it has called meetings away from the site at which the employees ordinarily perform work. At other times, services trades employees left the site after being addressed by representatives (of both divisional branches) of the CEPU.

[30]    In the contexts I have set out above, and notwithstanding the manner in which some of the relevant information has been conveyed to the Company, the presence of the CEPU on site has not been and is not a passive or disinterested one. Rather, it continues to be for a particular purpose: to advance and lend support to an industrial objective. The CEPU’s overall conduct on site cannot reasonably be explained otherwise.

[31]    It appears to me therefore that by its conduct, the CEPU is organising industrial action for the purposes of s.418(1)(c) of the Act. And because I so find, I must make a stop order for a prescribed period of operation. I add that I have discussed in some limited way below the scope of meaning of the verb “organising” (for purposes of s.418(1)(c) of the Act) in the context of comments by a recent Full Bench of FWA.

(Citations omitted.)

30    There is no suggestion in the present case that the Senior Deputy President misunderstood the matters for his decision. The complaint is that by refusing any further adjournment he did not allow the CEPU a proper opportunity to consider the case against it and respond.

31    It is significant, in my view, that s 418 compels the making of an order if it appears to the FWC that industrial action is being organised. That is a circumstance which must be taken into account when assessing whether the outcome of the proceedings might have been affected if a further adjournment was granted. It is a matter to which I will return.

The appeal to the Full Bench of the Fair Work Commission

32    Both the CFMEU and the CEPU appealed the orders. One of the grounds (the only one relevant here) was that the Senior Deputy President had denied the unions procedural fairness by refusing the adjournment.

33    By the time of the appeal, there had been proceedings in the Federal Magistrates Court of Australia raising similar issues against the CEPU, also brought on at short notice. With the benefit of an overnight adjournment, the CEPU had been able to obtain four affidavits (including one from Mr Lynch) to respond to the evidence from Abigroup Contractors. Those events occurred on 5 and 6 September 2012.

34    Before the Full Bench, and on the present application, the CEPU relied on this material to indicate the kind of material which it could have obtained if given an opportunity to do so.

35    The Full Bench described the test it was required to apply as follows:

[25]    … The test in this appeal is whether the consequence of that denial was that it denied the unions the possibility of a successful outcome.

(Citation omitted.)

36    That statement was supported by a reference to Stead v State Government Insurance Commission (1986) 161 CLR 141 (“Stead”). It was accepted on the present application that the test was correctly stated, but the CEPU argued that it was wrongly applied because the Full Bench went on to say:

[32]    Significantly, we are not persuaded that the evidence which would have been brought with the benefit of an adjournment, reflected in the additional evidence filed by the CEPU in the Federal Magistrates Court on 6 September 2012, following an adjournment granted on 5 September 2012, would have affected the decision and order of Senior Deputy President Richards.

(Emphasis added.)

37    The CEPU argued that in this passage the Full Bench misapplied the test it earlier distilled and distracted itself from its true effect, with the result that the Full Bench also committed jurisdictional error.

Distinguishing between the alleged jurisdictional errors

38    Attention to the respective jurisdictions and powers exercised by the Senior Deputy President at first instance, and by the Full Bench on appeal, is necessary and supported by authority. In particular in the present case, examination of whether the Full Bench committed a jurisdictional error requires particular attention to its functions on appeal. In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, the High Court, when dealing with the appellate jurisdiction of a statutory predecessor of the FWC, said (at [31]):

31    There would only have been jurisdictional error on the part of the Full Bench if it had misconceived its role or if, in terms used by Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council, it “misunder[stood] the nature of [its] jurisdiction ... or ‘misconceive[d] its duty’ or ‘[failed] to apply itself to the question which [s 45 of the Act] prescribes’ ... or ‘[misunderstood] the nature of the opinion which it [was] to form’. The Full Bench did none of those things.

(Citations omitted)

39    Apart from the question of whether the Full Bench approached the exercise of its appellate function with a correct appreciation of the task to be performed, and the tests to be applied to the appeal before it, there is also a question which must be resolved in the present case concerning whether the appeal before the Full Bench “cured” any denial of procedural fairness committed by the Senior Deputy President. It will be seen in due course that, in my view, it is not possible to finally decide whether there was a denial of procedural fairness justifying some form of relief in the present proceedings without giving some consideration to whether the outcome of the proceeding before the Senior Deputy President might have been different. As the argument suggesting that possibility depends on the material put before the Full Bench, it will be necessary to consider the substance of the conclusions by the Full Bench about that material, in the context of the operation of s 418 of the Act.

40    However, analysis must start with the failure of the Senior Deputy President to grant an adjournment beyond the evening of 3 September 2012.

Whether denial of procedural fairness

41    The test to be applied to the evaluation of this issue by the Full Bench was not in doubt, although its application to the facts of a particular case may not always be straightforward.

42    In Stead, a case which concerned a denial of natural justice where a party was denied a proper opportunity to make submissions on an important issue of fact, the High Court said (at 145-146):

…[A]n appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.

For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. …

Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. …

…It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.

43    At 147, in a passage to which reference is frequently made, the High Court said:

…All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result.

44    This principle has been applied in many cases, including cases concerning the work of administrative tribunals, rather than courts (see e.g. Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 (“Aala”) at [4], [80], [104], [131], [172], [211]).

45    In the present case, the denial of a proper opportunity to put the CEPU’s case was said to be the result of the failure to grant a more substantial adjournment than the two short adjournments to which I earlier referred.

46    It is well established that refusal of an adjournment may constitute a denial of procedural fairness if the refusal is not reasonable. The principle was stated in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 in the joint judgment of Gaudron and Gummow JJ as follows (at [40]:

40    Procedural fairness, which is one aspect of the rules of natural justice, requires that a person who may be affected by a decision be informed of the case against him or her and that he or she be given an opportunity to answer it. The opportunity to answer must be a reasonable opportunity. Thus, a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness.

(Citations omitted.)

47    One case cited by their Honours was Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298, where Gaudron J said (at 305):

There is a further question: was the Commission required, as a matter of procedural fairness, to afford the parties an opportunity to be heard upon the issues directed by s 142 in the light of the construction adopted by it? Ordinarily, when a decision on a question of law will affect the nature and range of the factual matters by reference to which the matter in issue may be decided, considerations of fairness require that the parties be given an opportunity to lead evidence and make submissions by reference to the principles of law to be applied. This must be so even if the existence of the question is not apparent until the hearing has concluded. Although, of course, the fact that a hearing has taken place may have particular significance in determining whether or not the opportunity was given. As was pointed out by Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 343, procedural fairness requires only that a party be given “a reasonable opportunity to present his case” and not that the tribunal ensure “that a party takes the best advantage of the opportunity to which he is entitled”. And it is always relevant to enquire whether the party or his legal representative should reasonably have apprehended that the issue was or might become a live issue: see Re Building Workers’ Industrial Union of Australia; Ex parte Gallagher (1988) 62 ALJR 81 at 84; 76 ALR 353 at 358.

(Emphasis in original.)

48    Assessment of the question of whether a party has had a sufficient opportunity to put a case can involve difficult questions of judgment, and the illumination available with the benefit of hindsight may often present a perspective not readily available to the decision-maker at the time. Also, as Gaudron and Gummow JJ said in Aala (at [62]):

The content of the requirement for procedural fairness may fluctuate during the course of particular administrative decision-making. …

(Citation omitted.)

49    This statement was accompanied by a reference to R v Marks; Ex parte Australian Building Construction Employees and Builders Labourers’ Federation (1981) 147 CLR 471 (“Marks”), to which I shall return later.

50    It is not completely clear why a further adjournment was not granted when the unions sought it. No specific ruling was made about that question and no reasons were given, although it may be inferred that the Senior Deputy President took the view that the scale and gravity of the industrial action occurring at the site necessitated urgent attention to the application. However, although the CFMEU conceded that its members were engaging in industrial action within the meaning of s 19 of the Act, that concession was not made by the CEPU which maintained, then and later, that the actions of its members fell within the exception in s 19(2)(c). That was, therefore, a live issue in the proceedings and one in respect of which the CEPU was entitled to a reasonable opportunity to answer the case against it and advance its own case.

51    Self-evidently, Abigroup Contractors had the advantage of preparing its evidence in advance and of filing its application at a time of its choosing. I do not suggest it took unfair advantage of either opportunity, but in the circumstances which developed the CEPU was left with very little time in which to respond to the case against it.

52    The fact that the CEPU was able to call some evidence shows that some form of response was nevertheless able to be made at short notice and that Mr Lynch, in particular, was available to give instructions of some kind about factual matters. However, the time permitted to the CEPU to consider, and make, its final response was, as I have said, very contracted. It appears to have been afforded only the time the Senior Deputy President judged was necessary to read (or view) the additional material supplied at the beginning of the hearing before the Senior Deputy President directed that Abigroup Contractors put its evidence. It was not unreasonable to take the evidence from Abigroup Contractors on the evening of 3 September 2012. The question is whether it was reasonable that the proceedings then continued to finality, so far as all the evidence and submissions were concerned.

53    No doubt the Senior Deputy President was conscious of the time limit imposed by s 420. It would also be artificial to leave out of account his perception that he was dealing with an apparently intractable industrial dispute which, in the public interest, required urgent and perhaps firm attention. Even so, it is not readily apparent why an adjournment until at least the following morning was not granted. There was no suggestion that such an adjournment would jeopardise the prospect of reaching a determination within the statutory time limit of two days, but if that was a real risk an interim order for the short period necessary was available.

54    To be fair, it was not suggested in opposition to the present application that there would, or could, have been any prejudice in adjourning at least until the following day. Mr Murdoch QC, who appeared for Abigroup Contractors on the present application, pointed out that neither union had sought an adjournment for that particular period but that circumstance is not a decisive one against which to test the reasonableness of the decision of the Senior Deputy President to press on to finality that evening. It is not now necessary to examine whether an adjournment until 5 September 2012 should have been granted, as no adjournment at all beyond the evening of 3 September 2012 was allowed, even though a decision was not necessary, and was not given, until some days later.

55    In the circumstances, I am prepared to assume that the refusal of an adjournment until at least the following day was unreasonable, and that it represented, prima facie, a denial of procedural fairness.

56    However, that does not mean that any relief is available to the CEPU in the present proceedings as a result. First, I think the proper view of the approach taken by the Full Bench is that it considered that a further adjournment could have made no difference to the outcome. Secondly, I think any denial of procedural fairness was overcome at the appeal before the Full Bench.

The decision of the Full Bench of the Fair Work Commission

57    In my view, in substance the Full Bench said that evidence of the kind advanced by the CEPU as an illustration of the evidence it wished to bring would not have changed the outcome. The Full Bench stated its conclusion having considered the evidence for itself. No doubt the Full Bench might have expressed itself more directly than it did in the passage I extracted earlier. Instead of saying it was not persuaded that the evidence would have affected the decision, it should perhaps have said affirmatively that in its assessment the evidence would not have affected the decision, but in my view that is the substance of its conclusion.

58    It is worth noting some observations made by the Full Bench concerning the material before the Senior Deputy President which are relevant to this issue. The Full Bench said (at [39] and [41]-[42] of its decision):

[39]    The CEPU further submits that whilst it was acknowledged that employees were not attending work, it was a matter of contention whether the non-attendance was due to reasonably held health and safety concerns or whether the non-attendance was industrial action.

…

[41]    The CFMEU conceded in the proceedings that it would be difficult to argue that persons eligible to belong to the CFMEU were not engaging in industrial action. The CEPU contended that its members were not engaging in industrial action as their stoppage was due to a perceived risk to their health and safety. The evidence of Mr Gildea went to the activities of CEPU members, their participation in joint meetings with the CFMEU, their participation in demonstrations in support of industrial action and their assembly at the site each morning, often with CEPU officials, prior to dispersing without performing any work.

[42]    His Honour acknowledged that some of the persons eligible to be members of the CEPU may have not worked for reasons which took them beyond the definition of industrial action. He was not persuaded that all of those employees could be so described. We agree that the findings that industrial action by persons eligible to be members of the CEPU were open on the evidence and the Senior Deputy President had the jurisdiction, and was obliged to issue the orders concerning these employees. We are also satisfied that there was evidence to find that the CFMEU and CEPU were involved in the industrial action and their conduct fell within the description of organising industrial action. The position of non-members is addressed below. We dismiss this ground of appeal.

59    In my view, the effect of the conclusion of the Full Bench was that the material upon which the CEPU wished to rely could not entirely displace the evidence at first instance that many members of the CEPU appeared to respond to factors other than concerns about safety when they, like members of the CFMEU, refrained from performing their normal duties; or displace the evidence (which was in substance not denied) that the CEPU played a role in advising its members about the events in question.

60    The orders which were made did not adversely affect members whose conduct was within the operation of s 19(2)(c) of the Act, or the role played by the CEPU in relation to such conduct. Unless the CEPU was in a position, after any necessary adjournment, to displace altogether the circumstances referred to – that not all members of the CEPU were motivated by a concern for safety and that the CEPU played an organising role with respect at least to those employees – then an order under s 418 was obligatory. In my view, that was the effect of the analysis of the material made by the Full Bench.

61    There is a further consequence also arising from the fact that the Full Bench considered for itself the material illustrating the type of evidence upon which the CEPU would have wished to rely.

62    In Marks, consideration was given to alleged procedural errors made by a member of the Commonwealth Conciliation and Arbitration Commission, a statutory predecessor of the FWC, which were alleged to constitute a denial of natural justice. Relevantly, for present purposes, Mason J (with whom Aickin and Wilson JJ agreed on this point) said that any denial of natural justice was irrelevant, having regard to the availability and use of a full right of appeal. His Honour said (at 484-485):

In any event, what happened before Marks J. cannot constitute a basis for prohibition on the ground that there was a denial of natural justice. The B.L.F. exercised its right of appeal to the Full Bench. On an appeal the Full Bench may admit further evidence and it may confirm, quash or vary the award or decision under appeal or make an award or decision dealing with the subject matter of the decision under appeal (s. 35 (9) (a), (c) and (d)). In Twist v. Randwick Municipal Council, this Court held that the existence of a full statutory right of appeal on facts and law was indicative of a legislative intention that the citizen’s only right of redress against the council’s failure to give him an opportunity to be heard before making a demolition order was by way of appeal. I refer to my judgment in that case. See also Australian Workers’ Union v. Bowen [No.2].

The present case has some similarities to Twist. There is here a full appeal on fact and law under s. 35. Moreover, s. 35 (9) (a) enables the Full Bench to admit further evidence. Further, by reason of their very nature and their capacity to create unemployment, to dislocate industry and to disturb the life of the community including the essential services on which the community depends, industrial disputes call for speedy and final determination, an object which is best achieved by recognizing that the remedy of a party complaining that he has been denied natural justice at first instance is to exercise his right of appeal under s. 35 to the exclusion of pursuing relief by way of prerogative writ.

There is a problem in saying that a member of the Commission is not under a duty to observe the rules of natural justice and there is a further problem in saying that the Parliament can oust the jurisdiction of this Court under s. 75 (v) of the Constitution to grant relief against an officer of the Commonwealth by way of prohibition for denial of natural justice. Even so, the B.L.F. exercised its right of appeal under s. 35 and the Full Bench examined the matter for itself. The B.L.F. does not suggest that there was any denial of natural justice in the appeal, except in so far as it submits that the Full Bench was wrong in upholding the decision not to issue the summons. In my opinion the B.L.F. received a full and fair hearing in the appeal and in those circumstances any denial of natural justice before Marks J. was irrelevant (Calvin v Carr).

(Citations omitted.)

63    If that approach is applied in the present case, it reinforces the conclusion that examination by the Full Bench of the material relied on by the CEPU cured any lack of fairness in the refusal to grant an adjournment.

Scope of relief sought

64    Earlier in this judgment I referred to the fact that the parties had agreed what orders would be appropriate if the application before the Court succeeded. Katzmann and Rangiah JJ have decided that it would be prudent if an order was also made granting a writ of certiorari directed to the decision of the Full Bench on appeal, removing that order into this Court and quashing it. The necessity for that order arises from their Honours’ view of a passage in the judgment of Mason J in Marks. Their Honours reasoning also involves a conclusion that an error was made by a Full Court of this Court in Transport Workers' Union v Mayne Nickless Ltd [1998] FCA 1022 (“Mayne Nickless”).

65    In the present case, it probably does no particular harm to expressly set aside the Full Bench decision. However, one question which is immediately presented is - to what end? It is not suggested that the Full Bench should rehear the appeal which it dismissed. No order of prohibition is to be directed against any respondent in relation to the order made by the Full Bench either.

66    The difficulty to which Mason J’s remarks were addressed (in the passage to which their Honours have referred) was that members of a Full Bench of the Australian Conciliation and Arbitration Commission had not been joined as parties to the proceedings in the High Court. That was at a time when it was the practice to name members of that Commission personally as parties to proceedings for prerogative relief. That is no longer the practice, and it was not done in the present case because it was not necessary. All relevant members of Fair Work Australia will be bound by the orders made in the present case without the necessity for any of them to be named individually.

67    In Marks, the difficulty identified during oral argument in the High Court was addressed by granting leave to add the members of the Full Bench as named parties to the proceedings. The passages in the judgment of Mason J which were addressed to this issue (at 476) and in other judgments (per Aickin J at 493; per Brennan J at 499) were addressed to this procedural question concerning proper parties to the proceedings, rather than to the terms of any proposed order. The order which was then made by the High Court was not, in terms, directed at the decision made by the Full Bench. No writ of certiorari issued. The named members of the Commission (including the members of the Full Bench) were simply prohibited from proceeding further in relation to certain matters in the proceedings at first instance.

68    For my own part, I do not see any error in the approach taken in Mayne Nickless, or in the orders agreed by the parties in the present matter which, in my respectful view, conformed to any requirement arising from Marks.

Conclusion

69    In my view, it has not been established that the Full Bench failed to apply itself to its statutory task, or that it made any jurisdictional error in the discharge of that task. In those circumstances, any jurisdictional error made at first instance (making that assumption for this purpose) was adequately addressed, or cured, by the appeal and does not survive as a sufficient foundation for relief in this Court.

70    Accordingly, I would dismiss the application.

Associate:

Dated:    6 December 2013

REASONS FOR JUDGMENT

KATZMANN AND RANGIAH JJ:

71    On the morning of Wednesday 5 September 2012 Senior Deputy President Richards of Fair Work Australia (now the Fair Work Commission) made orders designed to bring a halt to industrial action at a construction site in South Brisbane. The orders relevantly prohibited the applicant (“the CEPU”), its officers, employees and delegates from organising industrial action and prohibited certain subcontractors’ employees who were members or eligible to be members of the CEPU from engaging in industrial action. The orders were made on an application brought two days earlier by Abigroup Contractors Pty Ltd (“Abigroup”), the head contractor.

72    The CEPU applied for permission to appeal to a Full Bench of the Fair Work Commission. The principal ground of the appeal was that the CEPU and the individuals affected by the order had been denied procedural fairness in the hearing at first instance because the Senior Deputy President had refused the union’s request for an adjournment. The Full Bench granted permission to appeal but dismissed the appeal.

73    In this Court, the CEPU sought writs of certiorari and prohibition under s 39B(1) of the Judiciary Act 1903 (Cth) directed to both the Senior Deputy President and the Full Bench.

74    In broad terms, the issues raised by the parties are:

1.    whether the orders at first instance and on appeal were affected by jurisdictional error;

2.    whether, assuming that jurisdictional error is demonstrated, this Court should exercise its discretion in favour of granting relief.

75    The CEPU contends that the jurisdictional error at first instance was denial of procedural fairness as a result of the refusal of the Senior Deputy President to grant a lengthier adjournment of the hearing than it was given. It contends that the Full Bench fell into jurisdictional error by applying the wrong test when it decided that evidence which could have been led by the CEPU with the benefit of a lengthier adjournment would not have affected the primary decision.

Background

76    Abigroup is the head contractor for projects involving the construction of the Queensland Children’s Hospital and an associated energy plant (“the QCH Project”). The value of the QCH Project is in the order of $800 million. The energy plant was to be completed by the end of 2012 and the hospital by the end of 2013.

77    Abigroup directly employs some workers at the QCH Project and also engages subcontractors who employ other workers. A dispute developed over the entitlements of the employees of a subcontractor that had gone into receivership. On 6 August 2012, industrial action commenced at the QCH Project. Initially only subcontractors’ employees who were members of or eligible to be members of the Construction, Forestry, Mining and Energy Union (“the CFMEU”) and the Australian Building Construction Employees and Builders’ Labourers’ Federation (Queensland Branch) Union of Employees (“the BLF”) ceased work. Later, subcontractors’ employees who were members of or eligible to be members of the CEPU also stopped work, but the reasons they did so were very much in dispute in the hearing before Fair Work Australia on 3 September 2012. By that date some 650 workers had ceased work.

78    Officials of the CFMEU and the BLF and a number of the employees who had stopped work operated pickets at each of the entrances to the QCH Project. The cessation of work and the pickets caused substantial disruption to the business of Abigroup.

79    On 6 August 2012, Abigroup sought orders against certain employees who were members or eligible to be members of the CFMEU pursuant to s 418 of the Fair Work Act 2009 (Cth). Senior Deputy President Richards granted the orders sought. The orders were to remain in force until 5.00 pm on 3 September 2012.

80    On 9 August 2012, Abigroup sought and obtained orders from the Federal Magistrates Court (now the Federal Circuit Court of Australia) pursuant to ss 421(3) and 550 of the Fair Work Act restraining the CFMEU and the BLF from, inter alia, organising any industrial action at the QCH Project. On 16 August 2012, the orders of 9 August 2012 were extended until further order. On 21 August 2012, the Federal Magistrate made further orders against officials of the CFMEU and BLF.

81    Up to this point, there was no allegation by Abigroup in Fair Work Australia or the Federal Magistrates Court that the CEPU was organising industrial action or that any of its members or persons eligible to be its members were engaging in industrial action.

82    However, on 28 August 2012 Abigroup commenced proceedings in the Federal Magistrates Court for injunctions against the CEPU, as well as the CFMEU and the BLF. An application for interim relief was heard on the same day. Interim relief against the CEPU was refused and, on 30 August 2012, the solicitors for Abigroup advised the CEPU’s solicitors that the application for interlocutory relief would not be pressed. Apparently Abigroup also brought an application against the CEPU in Fair Work Australia at about this time, but no orders were made against the union. The details of that application are sketchy.

83    The significance of the applications made on 28 August 2012 is that the CEPU was then served with a series of statutory declarations, affidavits and orders made in the course of the proceedings previously taken by Abigroup against the CFMEU and the BLF before Fair Work Australia and the Federal Magistrates Court.

The hearing at first instance

84    On Monday, 3 September 2012 at about 11.30 am Abigroup filed with Fair Work Australia an application under s 418 of the Fair Work Act for orders against the CEPU, the CFMEU and the BLF and their delegates, officials and employees and the employees of subcontractors for the QCH Project who were members or eligible to be members of those unions. There is no suggestion that the CEPU was forewarned about the application.

85    In support of its application Abigroup filed statutory declarations of Brian Gildea and Timothy McCann, both made on 3 September 2012.

86    Abigroup’s solicitors served the filed material on the CEPU by emailing it to the CEPU’s solicitors, Hall Payne. The emailed material was received by Hall Payne at 12.27 pm. Shortly afterwards, those solicitors were informed that the application was listed for hearing before Fair Work Australia at 3.00 pm that afternoon.

87    The statutory declaration of Mr Gildea consisted of 60 paragraphs. It also attached the statutory declarations, affidavits and orders previously served on or about 28 August 2012 as well as a number of photographs. In all, Mr Gildea’s statutory declaration and its attachments consisted of some 315 pages. Mr McCann’s statutory declaration was much shorter.

88    At the hearing, the CEPU’s electrical division was represented by Mr White of counsel instructed by Hall Payne, while its plumbing division was represented by a solicitor, Ms Thornton of Maurice Blackburn Lawyers. No point was taken about the CEPU’s split representation. The CFMEU was represented by its in-house lawyer, Mr O’Brien. The BLF was not represented and it is unclear whether it was served.

89    It seems to have been accepted that the legal representatives for each union represented the interests of the members and persons eligible to be members of each respective union.

90    While they were seated at the bar table waiting for the hearing to begin, the legal representatives for the CEPU and CFMEU were handed three more statutory declarations. These were further statutory declarations of Mr Gildea and Mr McCann and a statutory declaration of a Ms Seering.

91    The hearing commenced at 3.15 pm. Upon the commencement, Mr O’Brien on behalf of the CFMEU requested an adjournment until the morning of Wednesday, 5 September 2012. Mr O’Brien submitted that there was a very large amount of material that had only been received by the CFMEU a short time earlier. He noted that there were three further affidavits he had not had an opportunity to read. He submitted that, in view of the existing orders, Abigroup would not be prejudiced if the matter were adjourned until the Wednesday morning. He said that the CFMEU would like to bring significant material to bear upon the application but had not had an opportunity to provide that material.

92    Mr White supported the application for the adjournment. He noted that it was only late that morning when the first tranche of affidavits was provided and that the second was provided when he was in the courtroom. He submitted that given the relatively short service of the material it was appropriate that the matter be adjourned so that proper consideration as to a response could be given.

93    Ms Thornton for the plumbing division of the CEPU also supported the CFMEU’s adjournment application. She added that she was not confident that she had copies of all of Abigroup’s material and sought time to consider that material.

94    Mr Murdoch QC, counsel for Abigroup, opposed any adjournment other than for a period of about 30 minutes to allow the respondents to check whether they had all of the material. He noted that the orders previously made by Fair Work Australia against the CFMEU and the BLF would expire at 5.00 pm that day. He submitted that the matter was urgent because the construction project remained blockaded, with workers being subjected to harassment to the point where one person had been charged with a criminal offence. He said the situation was deteriorating.

95    The Senior Deputy President then ruled upon the application for the adjournment as follows:

Thank you. Look, everyone, I have examined the material that’s come in, that’s been filed, and also of course I don’t have a fixed determined view on those matters as yet. It is suggestive of the fact that the industrial action that I found last week, at least at a preliminary level and without reaching any fundamental findings of course is that the situation continues to be parlous and difficult at the particular site. As in all these matters there is a high degree of urgency attached to these applications when they come in and I will attach the same degree of urgency to this particular application, particularly in the context where the orders which currently exist expire later this afternoon. There may well be issues where some parties have some concerns about the satisfactory nature of the service to the various documents and so forth, and the completion – whether or not the documents they hold are complete body of materials. I’ll adjourn for the 30 minutes that Mr Murdoch suggested and I’ll allow you to examine the completeness of your respective files. If in that 30 minute time one of the – someone is of concern that they need some small short further period of time to digest some particular materials, then you can request that at the time. So we’ll adjourn for that period of time and re-resume on those circumstances. Thank you.

96    The hearing was adjourned at 3.30 pm and resumed at 4.10 pm. Mr O’Brien again sought an adjournment until 5 September. Once more, Mr White and Ms Thornton supported the application. Mr O’Brien indicated that the CFMEU would consent to an interim order if the matter were adjourned until the Wednesday. There was no such offer from the CEPU.

97    The Senior Deputy President then proceeded with the hearing, implicitly rejecting the further application for an adjournment. After Mr O’Brien indicated that he had not had an opportunity to view certain video recordings relied upon by Abigroup the Senior Deputy President said:

What we might do is allow you some time to have a look at this footage and to give you the means to do that. That would require us to source a laptop for you and we shall do that, and we’ll make sure that you’ve had that opportunity. So what we’ll do is that we’ll adjourn. We’ll source some suitable equipment for you and we’ll provide you with that material in the conference room to the rear of the court room and my associate will check with you in a little while to see how you’re going and whether you’ve had an opportunity to see that documentation as embedded in the CDs. So we’ll do that and we’ll adjourn for that purpose. Thank you.

98    The hearing was adjourned at 4.26 pm and resumed at 5.12 pm. Upon the resumption, Mr White said that, having reviewed the footage, he was unsure as to its relevance to the case against the CEPU. Mr Murdoch then indicated that the footage was not relevant to the case against the CEPU.

99    The Senior Deputy President invited Mr Murdoch to open his case. Mr White objected to some paragraphs of the material read by Abigroup on the basis that they contained unsourced hearsay and the Senior Deputy President ruled that such material would be admitted and would be given only such weight as he might consider appropriate.

100    After Abigroup had read its material, the Senior Deputy President raised the question of whether the respondents intended to cross-examine Abigroup’s witnesses. Mr White said: “We are not in a position to be able to cross-examine, your Honour”.

101    The Senior Deputy President invited the respondents to call any evidence. Mr O’Brien for the CFMEU indicated that he did not intend to call any evidence. Mr White called Patricia Rodgers, an industrial officer with the CEPU. Her evidence was that she had telephoned Mr Lynch and read to him the first of the four statements attributed to him in the second statutory declaration of Mr McCann of 3 September 2012 (the one served at the bar table).

102    In that statutory declaration Mr McCann stated that on 16 August 2012 he was told by an unnamed person that Mr Lynch had addressed a group of workers who were members or eligible to be members of the CEPU and said:

(a)    ‘The site is open for work’;

(b)    ‘The union can’t guarantee your safety (getting bashed in dark corners) if you cross the picket line’;

(c)     In reply to a question from one of the workers regarding letters they had received the Fair Work Building Inspectorate, Chris said words to the effect that the workers should ‘rip them up, pay no attention to them, and that if you do you’ll be in a worse position than crossing the picket line’;

(d)    ‘If they hold out Abi will be forced to come to the table and negotiate with us’ (I took this to be a reference to the unions wanting Abigroup to sign a new enterprise agreement that has been proposed by the unions); and

(e)    that they would meet again tomorrow at the same time to discuss.

103    Ms Rodgers’ evidence of her discussion with Mr Lynch was as follows:

I asked him if he remembers saying those four things that he is alleged to have said. In relation to the first two he said he might have done, he couldn’t clearly recall, it’s a long time ago but in relation to the fourth one, that is D, he specifically said he didn’t say it.

104    Ms Rodgers was cross-examined. She said that Mr Lynch was at home, sick.

105    The parties then made their submissions. The representatives of the CEPU argued that the evidence did not establish that the action described in the material was “industrial action” or that the CEPU had “organised” any industrial action within s 418 of the Fair Work Act. The points they sought to make were that the persons who were CEPU members or eligible to be its members were refusing to cross the picket line because of concerns for their safety at the hands of other workers if they did so, and that the CEPU officials were neither encouraging people not to work nor supporting industrial action organised by the CFMEU and the BLF. Section 19(2) of the Fair Work Act relevantly provides that action by an employee based on a reasonable concern of the employee about an imminent risk to his or her safety is not industrial action.

106    In response to a submission by Mr Murdoch that Abigroup’s evidence was essentially uncontested despite its witnesses being made available for cross-examination, Mr White noted that he had sought, but had been refused, an adjournment that would have allowed him to be in a position to better respond.

107    The hearing concluded at 8.53 pm on 3 September 2012. Although the Senior Deputy President had refused an adjournment to 5 September on the basis of the urgency of the application, and despite the fact that his previous orders against the CFMEU expired at 5.00 pm on 3 September 2012, he reserved his decision and did not make any interim orders.

108    The Senior Deputy President handed down his decision on Wednesday, 5 September 2012 at about 11.30 am. He made orders prohibiting the CFMEU and the CEPU and their officers, employees and delegates from, inter alia, organising or being involved in organising any industrial action. The order also prohibited all employees employed by a subcontractor to Abigroup at the QCH Project who were members or eligible to be members of the CFMEU and the CEPU and who were taking unprotected industrial action from engaging in any industrial action. The order had effect against the unions for a period of six months and against the subcontractors’ employees for the duration of the QCH Project.

109    In his reasons for decision, the Senior Deputy President emphasised the urgency of the application, saying:

[2]    The QCH is a major Queensland public health asset project, valued at some $800 million. Little or no work has been performed on the site since around 6 August 2012, which was the time I made orders [PR527573] (“the previous decision”) pursuant to an application by the Company under s.418 of the Act. Access to the site through the congregation of workers is severely limited.

…

[4]    This decision is expedited for reason that the stoppage and the severe limitation on site access which have arisen is long running. The situation is heightened by that very fact, along with some of the conduct issues, which have led to one arrest so far. The communications made on the site and elsewhere are sometimes unashamedly abusive, and there are also media and other reports of threats and intimidation which only fuel the current tensions. It is said by the Company that the cost of the stoppage per day (excluding RDOs) is in the order of $300,000 plus any contractual damages that might be levied by the Queensland State Government.

110    The Senior Deputy President proceeded to make findings that employees who were members or eligible to be members of the CEPU were engaging in unprotected industrial action:

[7]    There is a claim in the current application that some of the employees of the subcontractors are taking industrial action that is not in all likelihood to be protected industrial action. I agree that there is evidence of employees of the services trades who are members of or are eligible to be members of the CEPU who have taken unprotected industrial action. They have left site on some occasions for meetings with CEPU officials. They have left site and participated in activities in support of the wider industrial action that I have found to be happening (see further below). Mr Brian Gildea also provided evidence that they have participated in a demonstration in support of the industrial action around the site.

[8]    Generally, it further appears from Mr Gildea’s observations, a large gathering of workers across the structural and services trades assembles each morning (other than on rostered RDOs), and then disperse, with no work being performed.

(Footnotes omitted.)

111    The Senior Deputy President then turned to the question of whether the CEPU had organised industrial action, finding as follows:

[27]    The evidence in this matter does not all lead in one direction. There is evidence that the CEPU at one point stated at a meeting of the service trades that it did not support the industrial action being carried out by the BLF and the CFMEU. At the same meeting I note the CEPU organisers concerned did not recommend that their members cross the picket line owing to concerns with the consequences of so doing.

[28]    On the evidence before me, however, the conduct of Mr Lynch, an organiser for the CEPU, moved beyond the simple communication of an observation made in the interest of public safety, that being the potential implications of crossing a picket line. Instead, Mr Lynch’s comments (being paragraphs (b) and (c) as cited earlier), when read together, constitute a communication the intent of which is to cause employees not to perform their duties in the ordinary manner and not to access their place of work for that very purpose. Indeed, Mr Lynch’s comments here may more appropriately characterise the actual intent of his other comments.

[29]    It also appears to me from the evidence that the CEPU generally is conducting itself over time in a manner that is intended directly to dissuade its own members (and others) from performing work in the ordinary manner and accessing the QCH site for that very purpose. At times it has called meetings away from the site at which the employees ordinarily perform work. At other times, services trades employees left the site after being addressed by representatives (of both divisional branches) of the CEPU.

[30]    In the contexts I have set out above, and notwithstanding the manner in which some of the relevant information has been conveyed to the Company, the presence of the CEPU on site has not been and is not a passive or disinterested one. Rather, it continues to be for a particular purpose: to advance and lend support to an industrial objective. The CEPU’s overall conduct on site cannot reasonably be explained otherwise.

[31]    It appears to me therefore that by its conduct, the CEPU is organising industrial action for the purposes of s.418(1)(c) of the Act. And because I so find, I must make a stop order for a prescribed period of operation.

(Footnotes omitted.)

112    The reference in [28] to Mr Lynch’s comments was to those comments set out in the second statutory declaration of Mr McCann made on 3 September 2012. It will be recalled that the evidence of Ms Rodgers was that Mr Lynch had told her over the telephone that he might have made the comments at (a) and (b) but could not clearly recall them and he denied making the comment at (d). Ms Rodgers did not indicate what Mr Lynch’s response was to (c).

113    Aside from Mr McCann’s evidence of Mr Lynch’s statements and Ms Rodgers’ account of Mr Lynch’s response to that evidence, the Senior Deputy President’s findings concerning the conduct of CEPU officials were based entirely upon the uncontradicted evidence of Mr Gildea. That uncontradicted evidence included evidence concerning the activities of Mr Lynch, Peter Ong, Mark Bateman and Keith McKenzie, who were all organisers for the CEPU.

114    The Senior Deputy President did not set out in detail all of the evidence he relied upon to support his findings. That is understandable in view of the short time frame within which he delivered his reasons. The uncontradicted evidence before the Senior Deputy President was capable of supporting his findings.

The appeal to the Full Bench

115    Both the CEPU and the CFMEU appealed against the orders of the Senior Deputy President. By the time of the hearing, the name of the tribunal had changed from “Fair Work Australia” to the “Fair Work Commission”. It is convenient to refer only to the Fair Work Commission in the remainder of these reasons.

116    It is only necessary to discuss the principal ground of appeal, namely that the unions had been denied procedural fairness by the refusal of a lengthier adjournment. The Full Bench rejected this ground on the following basis:

[30]    The primary issue for determination in an application under s 418 is whether it appears to the Commission that industrial action is happening (or is threatened, impending, probable or being organised). This involves a finding of fact. If it appears to the Commission that industrial action is happening, it is required to issue an order. The statutory injunction to determine matters within two days (as far as practicable) emphasises that matters under the provisions will necessarily be conducted with expedition and the opportunity to present a case will be limited. The scheme of this legislation carries with it the expectation that when members of an organisation engage in a stoppage of work, they need to be ready at short notice to be represented in any proceedings regarding their conduct and put such submissions that may be available to them to avoid the consequences of further orders arising from their conduct. This 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. The obligation to make orders, on application or on its own motion, requires the Commission to conduct the proceedings with considerable expedition.

[31]    We note in this matter that the circumstances included the following:

    industrial action had been taking place at this site for some time,

    the site was an important public infrastructure project;

    the stoppage of work had attracted publicity;

    his Honour had previously issued three orders for the industrial action to stop;

    despite the order there had not been a return to work at the site;

    although the previous orders did not apply to the CEPU, there had been disputes before his Honour in relation to the CEPU and contractors engaged to perform work on the site;

    during the course of the hearing on 3 September 2012, the previous order applying to the CFMEU expired;

    the fact that work was not being conducted by CEPU members on the site was not contested. The key contention of the CEPU was that the stoppage of work by CEPU members was not industrial action and the CEPU officials were not organising it;

    his Honour granted two adjournments of a short duration;

    following the adjournments the CEPU was permitted to lead hearsay evidence which provided a factual basis for the contentions made by the CEPU about the relevant circumstances;

    his Honour dealt with the issue of whether the stoppage of work by all employees amounted to industrial action by limiting the scope of the order to those who were engaging in industrial action.

[32]    Significantly, we are not persuaded that the evidence which would have been brought with the benefit of an adjournment, reflected in the additional evidence filed by the CEPU in the Federal Magistrates Court on 6 September 2012, following an adjournment granted on 5 September 2012, would have affected the decision and order of Senior Deputy President Richards.

[33]    In all of the circumstances and having regard to the scheme of the Act we do not believe that his Honour denied the CEPU or the CFMEU procedural fairness. His Honour was in the best position to assess the circumstances and determine the appropriate procedure to be adopted to enable him to determine the matter. He had dealt with industrial action regarding this project on several previous occasions. He granted two adjournments of a short duration. He denied an application for a further adjournment that would have extended the proceedings beyond the period he was required to try to determine the application. In our view his Honour gave the parties a reasonable opportunity to conduct their case. We dismiss this ground of appeal.

117    Some aspects of the Full Bench’s reasons may be open to criticism. For example, it did not discuss the factors that might have affected the ability of the unions to respond to the case made against them, such as service of material shortly before the hearing, the extent of the material served and the nature and extent of the allegations. We will deal with other aspects of the reasons later. However, the CEPU’s complaint about the reasons is confined to what the Full Bench said at [32].

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].

The decision at first instance: discretion

152    Abigroup argued that, even if jurisdictional error was demonstrated in the decision at first instance, relief should be refused in the exercise of the Court’s discretion on the basis that any evidence called by the CEPU if a lengthier adjournment had been granted would not have affected the outcome.

153    In Stead v State Government Insurance Commission (1986) 161 CLR 141 (“Stead”), the High Court held that a departure from the rules of natural justice will not entitle the aggrieved party to a new trial if the new trial would inevitably result in the making of the same order. An order for a new trial in such a case would be futile. However, the Court continued at 147:

All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result.

154    In Aala, the issues were whether there had been a denial of procedural fairness by the Refugee Review Tribunal and, if so, whether the consequence was that prohibition should go to the Tribunal under s 75(v) of the Constitution. As to the second issue, each member of the High Court applied the test set out in Stead, accepting that prohibition will be granted if a failure to afford procedural fairness deprived the prosecutor of the possibility of a successful outcome.

155    Before the Full Bench, the CEPU relied upon an affidavit of Mr Charles Massy, its solicitor, to demonstrate that an adjournment could have resulted in evidence being obtained and led that may have made a difference to the outcome. Mr Massy deposed that on 4 September 2012, Abigroup had joined the CEPU and three of its organisers to proceedings in the Federal Magistrates Court against the CFMEU and the BLF which sought interlocutory injunctions against the CEPU and some of its organisers. He said that the hearing commenced at 3.00 pm on 5 September 2012, but the CEPU had sought an adjournment on the basis that it had been served with a number of affidavits during the day and had not had the opportunity to take adequate instructions in respect of the allegations made. The hearing was adjourned until 11.00 am the following day. Mr Massy deposed that during the evening of 5 September and morning of 6 September he was able to take instructions and prepare affidavits of Mr Lynch, Mr Ong and Mr McKenzie, who were each CEPU organisers about whose conduct allegations had been made in Abigroup’s material. Mr Massy said that he was not aware of any reason why the CEPU would not have been able to adduce evidence to the same effect if Senior Deputy President Richards had granted the adjournment sought.

156    In his affidavit, Mr Lynch deposed that:

    The issues the subject of the industrial dispute did not concern the CEPU or its members. He had attended the QCH site on most week days since 7 August 2012 to provide advice and representation to members of the CEPU. He held meetings with CEPU members, usually away from the entrance to the site and out of the presence of the protestors to enable more open discussion.

    At each meeting he advised members to the effect that: the project was open for work; the CEPU did not support the taking of industrial action at the project; the CEPU was concerned to ensure the safety of its members; the CEPU had sought assurances from various employers that employees who entered the worksite while the protest was taking place would be safe during their passage to work and would not be the subject of physical violence once the protest ended, but no such assurances had been forthcoming; and it was up to individual members to decide whether they wished to work given the dangers currently present.

    He did not during any of those meetings encourage members to refrain from going to work or to support the workers going on strike.

    On 16 August 2012, he addressed a gathering of CEPU members and told them that: the site was open for work; the dispute had nothing to do with the CEPU and the CEPU did not support the stoppage; the union had asked the employer to guarantee that the workers would be safe when they crossed the line and that they would not be injured or bullied after the dispute ended; the union could not guarantee their safety either; and it was up to workers whether they wanted to work or not.

    A worker said that some of them had received letters from the Fair Work Building Inspector asking them to participate in interviews and he asked whether they had to do so. Mr Lynch said that he replied to the effect that the interview process was voluntary, but the participant could be subpoenaed to appear in court later and give evidence and if workers were forced to go to court and give evidence against one of the protestors, then they would be in a worse position than if they had crossed the picket line.

    He did not say anything to the effect that if workers held out, Abigroup would be forced to come to the table and negotiate.

    On 27 August 2012, he was told that a group of plumbing members was going to attempt to enter the site despite the presence of protestors and he walked there with Mr Ong and Mr Bateman to see what happened so that he could report back to his members. The three of them stood on the opposite side of the street to the workers and none of them said anything to the workers, walked near them or make any gestures towards them.

    Later he walked away to talk to some CEPU members in a different area and told them that the site was open, that he was not there to stop anybody from going onto the site or attending work, but that the workers needed to ensure that they were being provided with a safe work environment before going back to work.

    On 29 August 2012, he had asked two employers to redeploy workers to other jobs so they could keep working.

    On 29, 30 and 31 August 2012, he had discussions with CEPU members in similar terms to his previous discussions with them.

    He denied that he was aware of any conduct by any representative of the CEPU which conveyed support for the taking of industrial action.

157    Mr McKenzie deposed that:

    Every day the CEPU members had turned up ready and willing to work.

    On 28 August 2012, he attended the site and convened a meeting of some members of the CEPU to provide advice to them. He moved the meeting to a location some distance away from the site because he did not want CEPU members discussing whether they would want to go to work that day under the gaze of protestors who were demonstrating outside the site. He thought that this might intimidate his members and impact on their ability to hold free discussions. He stated that, as a group, the CEPU members advised him that they would not work that day because of their safety concerns.

    After that decision had been made he suggested that they attend a protest organised by the Queensland Council of Unions outside of Abigroup’s office. He thought it would be a good idea to protest because the sooner the dispute between Abigroup and the protesting workers was resolved, the sooner the CEPU’s members could safely return to work. Some of the CEPU members attended the protest while others went home or elsewhere.

    He was not aware of any dispute between the CEPU and Abigroup or any conduct of any representative of the CEPU which conveyed support for the taking of industrial action.

158    Each of Mr Ong, Mr McKenzie and Mr Lynch indicated that they had not supported or encouraged the CEPU’s members not to work. Their evidence suggests that the workers did not want to cross the picket lines because they feared for their safety if they did so. Mr Lynch and Mr Ong denied that they had engaged in intimidatory conduct against any workers. Mr Lynch placed an innocent connotation on the statements attributed to him on 16 August 2012. The effect of their evidence was to deny that the workers had engaged in industrial action or that the CEPU had organised any industrial action.

159    It will be recalled that, in finding that CEPU members or persons eligible to be its members had taken unprotected industrial action, the Senior Deputy President relied upon Mr Gildea’s observations that a large gathering of workers including workers from the services trades assembled each morning and then dispersed with no work being performed, that those workers had occasionally left the site for meetings with the CEPU officials and that they had also participated in activities in support of the wider industrial action. The evidence of Mr Lynch, Mr Ong and Mr McKenzie was capable of demonstrating that the CEPU’s members or persons eligible to be its members were ready and willing to work, but were not willing to cross the picket lines because of concerns for their safety. It was also capable of demonstrating that the conducting of meetings of workers away from the site and the workers’ participation in demonstrations were explicable for reasons other than the taking of industrial action.

160    It will also be recalled that the Senior Deputy President found, for several reasons, that the CEPU had organised industrial action. The Senior Deputy President found that Mr Lynch’s comments on 16 August 2012 constituted a communication, the intent of which was to cause employees not to perform their duties in the ordinary manner and not to access their place of work for that purpose and, further, that these comments more appropriately characterised the intent of his other comments about not recommending that their members cross the picket line due to safety concerns. The account given by Mr Lynch in his affidavit of 6 September 2012 was evidence which, if accepted, could have persuaded the Senior Deputy President that Mr Lynch was not encouraging the workers to take industrial action or otherwise organising industrial action.

161    The Senior Deputy President inferred that the CEPU’s conduct was intended to dissuade its own members and others from performing work and attending the QCH site for work because it had called meetings away from the site and, at other times, services trades employees had left the site after being addressed by representatives of the CEPU. The evidence of Mr Lynch, Mr McKenzie and Mr Ong was, however, capable of demonstrating that the reasons for calling meetings away from the site and for employees leaving the site after being addressed by CEPU representatives were consistent with fears the workers had for their safety, and fears the CEPU representatives had for the safety of their members.

162    The Senior Deputy President made his findings on the basis of the uncontradicted evidence of Mr Gildea and Ms Rodgers’ evidence as to the comments made by Mr Lynch. Had the CEPU been given the chance to take proper instructions from the various CEPU officials against whom Mr Gildea’s evidence was directed, it could have tested his evidence in cross-examination. The evidence of the CEPU organisers, had it been before the Senior Deputy President, would have contradicted much of Mr Gildea’s evidence and explained the comments made by Mr Lynch. The effect of the cross-examination and/or the evidence from the CEPU organisers could have led to a decision that members of the CEPU and persons eligible to be members of the CEPU were not engaging in industrial action and that the CEPU was not organising industrial action. In our opinion, the denial of procedural fairness deprived the CEPU of the possibility of a successful outcome. It would not therefore be futile to grant the CEPU the relief it seeks.

163    But that is not the end of the matter. A further question arises as to the availability of relief under s 39B of the Judiciary Act from the decision of Senior Deputy President Richards in circumstances where the CEPU exercised its right to apply for permission to appeal and was granted that permission.

164    In Transport Workers’ Union v Mayne Nickless Ltd [1998] FCA 1022 (“Mayne Nickless”) an application was made for writs of prohibition, mandamus and certiorari directed both to Commissioner Hoffman of the Australian Industrial Relations Commission who conducted a hearing at first instance and the Full Bench which dismissed an appeal against Commissioner Hoffman’s decision. The Full Court held that Commissioner Hoffman had erred in failing to exercise the Commission’s jurisdiction. The Full Court said at 15:

Accordingly writs of certiorari and mandamus should issue. It will be sufficient for certiorari to issue to Commissioner Hoffman: it is his decision to dismiss the union’s application, not that of the Full Bench affirming it, that has the legal effect on rights which Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 159 shows is necessary to justify the issue of this particular writ. And since the Full Bench decision was dependent upon the Commissioner’s order, it necessarily goes when that order is quashed: see R v Rogers (1869) 6WW & A’B 138(L) at 141.

165    The Full Court does not seem to have been taken to the decision of the High Court in R v Marks; Ex Parte Australian Building Construction Employees’ and Builders Labourers’ Federation (1981) 147 CLR 471 (“Marks”). In Marks, the applicant applied to the High Court pursuant to s 75(v) of the Constitution for a writ of prohibition directed to both Marks J, a Deputy President of the Australian Conciliation and Arbitration Commission, and the Full Bench of that Commission. The applicant had appealed against the decision of the Deputy President, but the Full Bench had dismissed the appeal.

166    Mason J (with whom the other members of the Court agreed on this point) rejected a submission that, if the challenge to the decision of the Deputy President succeeded on the footing that it was void, the confirmation of that decision by the Full Bench would have no operative effect at 476:

This submission does not meet the point that the Full Bench decision is conclusive while it stands. In Wishart v. Fraser (1941) 64 C.L.R. 470, it was held that an appeal as of right to the High Court from a decision of a magistrate exercising federal jurisdiction could not be maintained after it had been confirmed by a Court of Quarter Sessions. Dixon J. said (1941) 64 C.L.R., at p. 483: “… we cannot ignore the order of the Court of Quarter Sessions confirming the conviction and … unless we are satisfied that it was made without jurisdiction and is totally void, we must regard it as conclusive while it stands.” By its decision the Full Bench confirmed the decision at first instance. Further steps to implement the decision will be steps taken pursuant to its confirmation of that decision.

167    As the position under the Fair Work Act is not relevantly distinguishable, we are bound to apply the reasoning in Marks upon this point. Issuing a writ of prohibition directed to the Fair Work Commission prohibiting it from proceeding further on the decision and order of Senior Deputy President Richards would not disturb the decision and order of the Full Bench. In Marks, the High Court issued a writ of prohibition directed to the Deputy President and the members of the Full Bench prohibiting all of them from proceeding further in the matter on the basis that neither the order at first instance nor the confirmation of that order by the Full Bench in dismissing the appeal could be allowed to stand.

168    In Marks, Mason J continued at 484-485:

In any event, what happened before Marks J. cannot constitute a basis for prohibition on the ground that there was a denial of natural justice. The B.L.F. exercised its right of appeal to the Full Bench. On an appeal the Full Bench may admit further evidence and it may confirm, quash or vary the award or decision under appeal or make an award or decision dealing with the subject matter of the decision under appeal (s 35(9) (a), (c) and (d)). In Twist v. Randwick Municipal Council, this Court held that the existence of a full statutory right of appeal on facts and law was indicative of a legislative intention that the citizen's only right of redress against the council's failure to give him an opportunity to be heard before making a demolition order was by way of appeal. I refer to my judgment in that case. See also Australian Workers' Union v. Bowen [No.2].

…

There is a problem in saying that a member of the Commission is not under a duty to observe the rules of natural justice and there is a further problem in saying that the Parliament can oust the jurisdiction of this Court under s. 75 (v) of the Constitution to grant relief against an officer of the Commonwealth by way of prohibition for denial of natural justice. Even so, the B.L.F. exercised its right of appeal under s. 35 and the Full Bench examined the matter for itself. The B.L.F. does not suggest that there was any denial of natural justice in the appeal, except in so far as it submits that the Full Bench was wrong in upholding the decision not to issue the summons. In my opinion the B.L.F. received a full and fair hearing in the appeal and in those circumstances any denial of natural justice before Marks J. was irrelevant (Calvin v. Carr [1980] A.C. 574, at p. 593).

(Footnotes omitted.)

169    Mason J did not rule that prohibition cannot issue against a Commissioner who decided an application at first instance in circumstances where there has been an unsuccessful appeal to the Full Bench. Rather, his Honour indicated that it is first necessary to examine the statutory scheme to ascertain whether Parliament’s intention was that the only remedy for a denial of procedural fairness was to be by way of appeal. Even if that was not Parliament’s intention, there remains a discretion to refuse relief, for example, on the basis that the failure to provide natural justice has been “cured” by a full and fair hearing in the appeal so that the denial of procedural fairness at first instance is irrelevant: see also Aala at [50] per Gaudron and Gummow JJ.

170    There is nothing in the language of the Fair Work Act to indicate an intention to exclude the Federal Court’s jurisdiction to issue writs of prohibition and mandamus under s 39B of the Judiciary Act against a decision of the Fair Work Commission at first instance where there has been an appeal.

171    Section 39B(1) of the Judiciary Act provides that the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. Until 1 July 2009, s 39B(2) provided that a person holding office under the Workplace Relations Act 1996 (Cth) was not an officer of the Commonwealth, but that exclusion was removed by the Fair Work (State Referral & Consequential & Other Amendments) Act 2009 (Cth). The purpose of the amendment was to give the Federal Court jurisdiction under s 39B(1) in matters in which mandamus, prohibition or an injunction was sought against a person holding office under the Workplace Relations Act. The Federal Court now has jurisdiction under s 39B(1) in any matter in which a remedy of this kind is sought against a person holding office under the Fair Work Act, including a Commissioner, whether at first instance or as a member of a Full Bench. The legislation does not preclude a grant of relief under s 39B(1) in respect of a decision of a Commissioner at first instance where there has been an appeal from that decision to a Full Bench.

172    It is next necessary to determine whether the Court should refuse relief on the discretionary ground that the denial of procedural fairness was “cured” by the appeal to the Full Bench.

173    A denial of procedural fairness may be cured by an appeal. That will almost certainly be so where the appeal is in the nature of a hearing de novo and often, too, where there has been a rehearing. But is it so here? To answer that question it is necessary to examine the hearing process before the Senior Deputy President and on appeal “as a whole”: Calvin v Carr [1980] AC 574 at 594. That will include an examination of all the proceedings leading to the decision, the conduct of the CEPU and the gravity of the breach: Calvin v Carr at 596, 596, 593 and Marks at 484.

174    In Aala, Gaudron and Gummow JJ at [50] considered that the judgment of Mason J in Marks was authority for the proposition that prohibition to the first instance decision maker may be refused on the footing that any denial of procedural fairness at that level has become irrelevant because there has been a full and fair hearing on appeal. In the present case, however, the appeal on the ground of denial of procedural fairness appears to have been conducted on the basis that if the ground was made out the application would be remitted to a single member to decide again. That is consistent with the course commonly taken by an appellate tribunal in such a case.

175    The Full Bench decided the appeal on the basis that no error had been demonstrated in the decision and it did not purport to examine for itself whether Abigroup had made out the case it brought under s 418. There was not a full hearing before the Full Bench in the sense that there was no opportunity for cross-examination of Abigroup’s witnesses, a full evaluation of all the evidence that the CEPU would have wished to call and a decision upon the merits of the case. This was not a Calvin v Carr type case where there was a full second hearing which “cured” the denial of procedural fairness in the sense of making the denial of procedural fairness in the first hearing irrelevant. Moreover, the error at first instance would certainly not be cured if, in the process of determining whether there had been a denial of procedural fairness at first instance, the Full Bench itself fell into jurisdictional error.

176    We would refuse relief against the decision at first instance unless we were to conclude that the decision of the Full Bench involved jurisdictional error. That is because it would be futile to grant relief in respect of a decision at first instance when the appellate decision stands and is conclusive and operative.

The Full Bench’s decision: jurisdictional error?

177    In its appeal to the Full Bench the CEPU contended that it had been denied procedural fairness by the refusal of its application for an adjournment, other than for the two short periods. An appellate tribunal approaching the issues involved in such a ground would usually consider, first, whether there was a denial of procedural fairness and, second, if that were so, whether in its discretion it should refrain from ordering a new trial.

178    The language and structure of the decision of the Full Bench presents some difficulty in understanding why it reached the conclusions it did. That difficulty is exacerbated by the brevity of its reasoning, its failure to take into account some important matters and its failure to disclose its reasoning on at least one important issue.

179    The Full Bench commenced its consideration of the procedural fairness ground by discussing in [30] the requirement under s 418 that proceedings be conducted with expedition. It concluded that the opportunity to present a case in response will necessarily be limited.

180    The Full Bench then set out in [31] the factual matters that it considered were relevant to the procedural fairness ground.

181    The Full Bench said next in [32] (the paragraph in contention here) that it was “not persuaded that the evidence which would have been brought with the benefit of a lengthier adjournment, reflected in the additional evidence filed by the CEPU in the Federal Magistrates Court on 6 September 2012 following an adjournment granted on 5 September 2012, would have affected the decision and order of the Senior Deputy President”. This is the type of finding that might be thought to be relevant to the second of the two issues it had to decide, namely the exercise of the discretion, but there is no reference to the discretion in that paragraph or later in the reasons.

182    In the next paragraph ([33]) the Full Bench concluded that in all the circumstances and having regard to the scheme of the Fair Work Act, the CEPU and the CFMEU had been given a reasonable opportunity to conduct their case and had not been denied procedural fairness.

183    There are two possible ways of construing the role that [32] played in the Full Bench’s reasoning.

184    One way is that the Full Bench may have decided the two issues it had to consider in reverse order. That is, it may have decided in [32] that, even if there had been a denial of procedural fairness, it would not exercise its discretion in favour of the grant of relief because the evidence that could have been led with a lengthier adjournment would not have made any difference to the outcome; and then proceeded to decide in [33] that there was no denial of procedural fairness.

185    Alternatively, the Full Bench may only have considered whether there was a denial of procedural fairness in the course of [30]–[33] and decided in [32] that one of the circumstances which persuaded it that there was no denial of procedural fairness was that the evidence which would have been led with the benefit of a lengthier adjournment would not have affected the outcome of the proceeding before the Senior Deputy President.

186    If it is assumed that the Full Bench approached the procedural fairness ground in the first of the ways described above, that is, on the basis that it would refuse relief in the exercise of its discretion, the reasoning in [32] reveals two errors.

187    First, the Full Bench said that it was not persuaded that the evidence which would have been brought with the benefit of an adjournment “would have” affected the decision and order of the Senior Deputy President. However, Stead establishes that all an appellant needs to show in order to obtain relief is that the denial of procedural fairness deprived him or her of the possibility of a successful outcome. The standard applied by the Full Bench put the bar too high and was contrary to the test in Stead.

188    Second, the Full Bench could not reasonably have concluded that the evidence which would have been brought with an adjournment, reflected in the additional evidence filed by the CEPU in the Federal Magistrates Court proceedings, would not have affected the decision and order of the Senior Deputy President. The Full Bench set out its bare conclusion on this point without disclosing any of its reasoning for that conclusion. It might have been expected that the Full Bench would discuss the evidence called by Abigroup, the findings made by the Senior Deputy President upon that evidence, the evidence that might have been called by the CEPU with the benefit of a lengthier adjournment and analyse how the CEPU’s evidence might have contradicted Abigroup’s evidence and, so, how it might have affected the outcome. The Full Bench did none of those things, simply setting out its conclusion in a single sentence. The absence of any overt process of reasoning for the conclusion disguises the problems inherent in that conclusion.

189    As we have already indicated, the CEPU’s evidence, if accepted by the Senior Deputy President, contradicted much of the evidence relied upon by Abigroup and was capable of affecting the outcome. An adjournment would also have provided the CEPU’s counsel with material on which he could cross-examine Abigroup’s witnesses. Much would have turned upon which of the witnesses’ evidence was accepted. It could not reasonably be concluded that the Senior Deputy President “would have” made the same decision in the face of the new evidence. The most that could be said is that the Senior Deputy President might have made the same decision. It is a necessary corollary that he might not.

190    It is arguable that the Full Bench’s conclusion that “we are not persuaded that the evidence which would have been brought with the benefit of an adjournment … would have affected the decision” was merely a slip, in view of the fact that the Full Bench had correctly set out the test from Stead earlier in its reasons. In other words, the argument is that in [32] the Full Bench meant to say that the new evidence could not possibly have affected the decision at first instance. We are mindful that the Full Bench is an administrative decision-maker. It is well established that the reasons of an administrative decision-maker are not meant to be scrutinised too zealously to see if error can be gleaned from the way the reasons are expressed: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. The Court is not to be concerned with “looseness of language” or “unhappy phrasing”: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. But a beneficial approach to the reasons does not demand that any ambiguity be resolved in favour of the decision maker: SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26]; Lesianawai v Minister for Immigration and Citizenship (2012)131 ALD 27 at [48]. In this case we do not accept that this is merely a case of loose language or unhappy phrasing. That is because on any reasonable analysis of the evidence, the conclusion that the new evidence could not possibly have affected the decision was not reasonably open. It is therefore unlikely that the Full Bench in fact reached such a conclusion. Rather, the words the Full Bench used should be taken for what they say.

191    Alternatively, and the more natural reading of the Full Bench’s reasons, taken as a whole, is that the content of [32] forms part of its reasoning for its conclusion that the CEPU had a reasonable opportunity to conduct its case and was not denied procedural fairness. The contrary view (that in [32] the Full Bench was considering the exercise of its discretion upon an assumption that the CEPU was able to demonstrate a breach of procedural fairness) does not sit easily with the structure and language of the reasons. To construe the reasons in that way would require that they be read such that the Full Bench dealt initially with the facts and issues relevant to whether there had been a denial of procedural fairness, then changed tack to deal with the exercise of its discretion upon the unstated assumption that procedural unfairness was able to be demonstrated, and then returned to the question of whether there was a denial of procedural fairness. It would also require the conclusion that the Full Bench correctly stated the Stead test in relation to the exercise of discretion but then applied a different test. The absence of any reference to discretion in [32] suggests that the Full Bench was not dealing there with discretion.

192    Nevertheless, the approach that the conclusion in [32] forms part of the reasoning for the conclusion that there was no denial of procedural fairness also reveals error. Procedural fairness required that the CEPU be given a reasonable opportunity to present its case. The issue was whether the refusal of a lengthier adjournment denied the CEPU a reasonable opportunity to present its case. The question of whether the evidence that the CEPU could have obtained with a lengthier adjournment could have made a difference to the outcome could only go to the discretion to grant relief, not to the question of whether the CEPU had a reasonable opportunity to present its case. That was the approach taken in Aala where the question of whether there was a denial of procedural fairness and the refusal of relief in the exercise of the Court’s discretion were treated as separate issues. Gaudron and Gummow JJ said at [58] - [59]:

58    It is one thing to refuse relief on the ground of utility because, as Lord Wilberforce put it, “[t]he court does not act in vain”. …

59    However, the conditioning of a statutory power so as to require the provision of procedural fairness has, as its basis, a rationale which differs from that which generally underpins the doctrine of excess of power or jurisdiction. The concern is with observance of fair decision-making procedures rather than with the character of the decision which emerges from the observance of those procedures. Unless the limitation ordinarily implied on the statutory power is to be rewritten as denying jurisdictional error for “trivial” breaches of the requirements of procedural fairness, the bearing of the breach upon the ultimate decision should not itself determine whether prohibition under s 75(v) should go. The issue always is whether or not there has been a breach of the obligation to accord procedural fairness and, if so, there will have been jurisdictional error for the purposes of s 75(v).

(Footnotes omitted.)

193    The Full Bench used its conclusion that a lengthier adjournment would not have resulted in the production of evidence that would have affected the outcome as a means of concluding that the CEPU had a reasonable opportunity to present its case at first instance. Its reasoning (which must be inferred because it was not expressed) seems to have proceeded on the basis that the breach was trivial or, in other words, that it produced no injustice. However, it is not the bearing of the breach upon the outcome that determines whether there was a denial of procedural fairness. The conclusion that an adjournment would not have led to a different outcome was not relevant to the question of whether the CEPU had a reasonable opportunity to present its case. Accordingly, the Full Bench’s conclusion involved an error of law.

194    The next question is whether the error of law made by the Full Bench was a jurisdictional error. Prohibition will lie only for jurisdictional error. Not all errors of law the Full Bench may make will be jurisdictional. In this case, however, we are satisfied that the error went to jurisdiction.

195    In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [31], Gleeson CJ, Gaudron and Hayne JJ discussed what would constitute jurisdictional error by the Full Bench of the Australian Industrial Relations Commission, the predecessor of the Fair Work Commission:

There would only have been jurisdictional error on the part of the Full Bench if it had misconceived its role or if, in terms used by Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council, it “misunder[stood] the nature of [its] jurisdiction … or ‘misconceive[d] its duty’ or ‘[failed] to apply itself to the question which [s 45 of the Act] prescribes’ … or ‘[misunderstood] the nature of the opinion which it [was] to form’ ”…

(Footnotes omitted.)

196    The Fair Work Act imposed on the Fair Work Commission an implied obligation to accord procedural fairness to the CEPU. The Full Bench was required to decide whether there had been a breach of that obligation and to make that decision in accordance with the established legal principles. In deciding that there was no denial of procedural fairness at first instance the Full Bench asked itself the wrong question and erroneously took into account its opinion that a lengthier adjournment would not have produced a different outcome, or, in other words, that any error was trivial. The High Court held in Aala that a trivial breach of the requirements of procedural fairness will not deny the existence of jurisdictional error.

197    Consequently, the approach the Full Bench took to the central question of whether the Senior Deputy President had denied the CEPU procedural fairness was fundamentally wrong. The mistake may be characterised as the Full Bench misconceiving its duty or misunderstanding the nature of the opinion it was to form. But whatever label is given to it, it was an approach infected by jurisdictional error. The errors we have identified were not merely erroneous conclusions within jurisdiction. They were “defects in the inquiry process”: Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (1999) 93 FCR 317 at [69]. They amount to a constructive failure by the Full Bench to exercise its jurisdiction. The decision-making process miscarried. In these circumstances, we are unable to agree with Buchanan J that the defect at first instance was cured by the appeal. Having regard to the errors made by the Full Bench, the CEPU did not receive on appeal the rehearing contemplated by the Fair Work Act.

198    For these reasons the CEPU must succeed.

Orders

199    The parties agreed that in the event that the CEPU prevailed the Court should issue certiorari to quash the orders made by the Senior Deputy President insofar as they apply to the CEPU and to prohibit the Fair Work Commission from proceeding further on that decision and those orders. It was not suggested that in that event mandamus should also issue to require the Full Bench to carry out its task according to law.

200    Although the CEPU did not press for it, it is prudent to also issue certiorari to quash the order of the Full Bench dismissing the CEPU’s appeal.

201    The parties agreed that there should be no order as to costs.

Associate:

Dated:    6 December 2013