CASE PROCEDURES – review of external decision – s.604 Fair Work Act 2009 – cl.81 Offshore Petroleum and Greenhouse Gas Storage Act 2006 – r.53 Fair Work Commission Rules 2013 – appeal – Full Bench – at first instance Commission determined that a historical assessment was the appropriate method of determining the application from the appellant to seek revocation of NOPSEMA’s decision to issue an improvement notice – Commission adopted the questions for determination that had been proposed by NOPSEMA – appellant sought permission to appeal against the decision at first instance on the basis that it asserted that the decision applied an incorrect approach to the matter – appellant advised that it sought to challenge the improvement notice so as to protect its reputation with particular regard to future tendering arrangements – meaning of ‘de novo’ hearing – Rutjens and Shi considered – the nature of an improvement notice under the OPGGS Act and the nature of the appeal contemplated by that Act establish that this capacity to affirm, vary or revoke an improvement notice must be applied with regard to the fundamental purpose of that notice – at first instance the parties requested that Commission decide between an historical or current approach – Full Bench held that such a simple election misrepresents the nature of Commission’s task under the OPGGS Act – whilst the primary issue to be determined by Commission is whether the improvement notice should have been issued at that time, it may also, in appropriate circumstances, be necessary for Commission to determine whether an improvement notice should apply at the time it makes a decision – whilst Full Bench agreed that Commission correctly identified the major issue to be determined in the appeal, his decision did not fully take into account the extent to which a contemporary assessment of the matter may lead to a decision to review the improvement notice as part of its ultimate disposition – Full Bench unable to agree with the entirety of his conclusion – important that the approach to an appeal of this nature is founded on temporal considerations consistent with the relevant legislation and this raises matters of public interest – permission to appeal granted – the conclusion in the decision at first instance precluded the Commission from reaching a contemporary view about an improvement notice, having assessed its historical appropriateness – Full Bench held that this reflected error – appeal upheld – application referred back to the Commission to determine in accordance with this decision. Appeal by Sedco Forex International Inc against decision of Cloghan C of 26 October 2015 [[2015] FWC 7239] Re: National Offshore Petroleum Safety and Environmental Management Authority t/a NOPSEMA.
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