Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2016] FCAFC 169

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2016] FCAFC 169

The application was dismissed because neither the Full Bench decision nor the first instance decision was shown to be affected by jurisdictional error. The Full Bench correctly applied the substance of the s 604 test for permission to appeal, and its reference to s 400(1) was an inadvertent or typographical error. At first instance, the Deputy President considered the permit qualification matters in s 513(1), including the matters the Commission considered relevant under s 513(1)(g), and took account of the Branch conduct allegations and Bechtel conduct. The applicant's complaints were about the weight attributed to those matters, which was a matter for the Commission within jurisdiction.

Jurisdiction
Australia
Judgment Date
12 December 2016
Procedural Posture
Application for Judicial Review Under S 39 B of the Judiciary Act 1903 (cth) / Application to Quash Fair Work Commission First Instance and Full Bench Decisions
Outcome
Application dismissed.
Legal Topics
['right of Entry Permits Under Pt 3 4 of the Fair Work Act 2009 (cth)' 'fit and Proper Person Test' 'permit Qualification Matters Under S 513 of the Fair Work Act 2009 (cth)' 'judicial Review for Jurisdictional Error' 'certiorari and Mandamus' 'permission to Appeal Under S 604 of the Fair Work Act 2009 (cth)']
['industrial Law' 'employment and Industrial Relations' 'administrative Law'] ['right of Entry Permits Under Pt 3 4 of the Fair Work Act 2009 (cth)' 'fit and Proper Person Test' 'permit Qualification Matters Under S 513 of the Fair Work Act 2009 (cth)' 'judicial Review for Jurisdictional Error' 'certiorari and Mandamus' 'permission to Appeal Under S 604 of the Fair Work Act 2009 (cth)']

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Procedural Posture

Application for Judicial Review Under S 39 B of the Judiciary Act 1903 (cth) / Application to Quash Fair Work Commission First Instance and Full Bench Decisions

Legal Issues

  1. 1 ['Whether the Fair Work Commission first instance decision granting an entry permit to Mr Ravbar was amenable to certiorari.' 'Whether the Full Bench decision refusing permission to appeal was amenable to certiorari.' 'Whether the Full Bench made jurisdictional error by referring to s 400(1) of the Fair Work Act 2009 (Cth) rather than applying s 604.' 'Whether the Commission at first instance failed to take into account relevant considerations under s 513(1)(g) of the Fair Work Act 2009 (Cth), including alleged branch conduct and the Bechtel conduct.' 'Whether the Commission misconceived its duty or asked the wrong question in deciding whether Mr Ravbar was a fit and proper person to hold an entry permit.']

Ratio Decidendi

The application was dismissed because neither the Full Bench decision nor the first instance decision was shown to be affected by jurisdictional error. The Full Bench correctly applied the substance of the s 604 test for permission to appeal, and its reference to s 400(1) was an inadvertent or typographical error. At first instance, the Deputy President considered the permit qualification matters in s 513(1), including the matters the Commission considered relevant under s 513(1)(g), and took account of the Branch conduct allegations and Bechtel conduct. The applicant's complaints were about the weight attributed to those matters, which was a matter for the Commission within jurisdiction.

Court Disposition

Application dismissed.

Orders

  • ['The application, filed 23 December 2015, be dismissed.']