Altintas v O'Dea Lawyers

Link copied
Case Copied 17 min read

FEDERAL COURT OF AUSTRALIA

Altintas v O’Dea Lawyers [2018] FCAFC 165

File number: SAD 347 of 2017
Judges: WHITE, PERRY AND CHARLESWORTH JJ
Date of judgment: 27 September 2018
Catchwords:

INDUSTRIAL LAW – question reserved by the South Australian Employment Tribunal (SAET) – the question concerns SAET’s jurisdiction to hear and determine an appeal from an Industrial Magistrate exercising jurisdiction under the Fair Work Act 2009 (Cth) – whether the Federal Court has jurisdiction under s 26 of the Federal Court of Australia Act 1976 (Cth) to hear and determine the question – whether an appeal would lie to this Court from an appellate decision of the SAET in the subject action – whether s 69(13) of the Statutes Amendment (South Australian Employment Tribunal) Act 2016 (SA) vested the SAET with jurisdiction to hear the Appellant’s appeal.

Held: SAET does not have jurisdiction to determine the Appellant’s appeal – accordingly, an appeal would not lie from the SAET decision to this Court and this Court does not have jurisdiction to hear and determine the reserved question.

Legislation:

Fair Work Act 2009 (Cth) ss 12, 539, 545, 546, 565

Federal Court of Australia Act 1976 (Cth) s 26

Fair Work Regulations 2009 (Cth) reg 1.05

Fair Work Act 1994 (SA) s 69

Industrial and Employee Relations Act 1994 (SA)

Industrial Relations Act 1972 (SA)

Return to Work Act 2014 (SA)

South Australian Employment Tribunal Act 2014 (SA)

Statutes Amendment (South Australian Employment Tribunal) Act 2016 (SA) ss 4, 5, 6‑6B, 69

Cases cited:

Altintas v O’Dea Lawyers [2017] SAIRC 7

Bragg v GWA Group Holdings Ltd [2016] SAIRC 32

Kronen v Commercial Motor Industries Pty Ltd (trading as CMI Toyota) [2018] FCAFC 136

Pope Nitschke Pty Ltd (as Trustee for Pope Nitschke Unit Trust) v Parsons [2017] SAIRC 6

Simon v The Bowen Family Trust (t/as Pod Squared Podiatry Centre) [2016] SAIRC 21

Date of hearing: 31 May 2018
Registry: South Australia
Division: Fair Work Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 38
Counsel for the Appellant: Mr K Hanna
Solicitor for the Appellant: Wearing Law
Counsel for the Respondent: The Respondent did not appear

ORDERS

SAD 347 of 2017

NOTICE OF QUESTION REFERRED BY THE SOUTH AUSTRALIAN EMPLOYMENT TRIBUNAL

BETWEEN:

SERA ALTINTAS

Appellant
AND:

O’DEA LAWYERS

Respondent

JUDGES:

WHITE, PERRY AND CHARLESWORTH JJ

DATE OF ORDER:

27 SEPTEMBER 2018

THE COURT:

1.Declines to answer the reserved question on the basis that it does not have jurisdiction to do so.

2.Directs that a Registrar of the Court provide a copy of the Court’s judgment to the Attorney‑General for the State of South Australia and to the President of the South Australian Employment Tribunal.

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


REASONS FOR JUDGMENT

THE COURT:

  1. This judgment concerns a question reserved to the Court by the South Australian Employment Tribunal (the SAET) on 14 December 2017.

  2. The question concerns the jurisdiction of the SAET to…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Altintas v O'Dea Lawyers and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2018] FCAFC 165
Decision Date

CaseChat Overview and Summary

The case of Altintas v O'Dea Lawyers involved a dispute between the appellant and the respondent, O'Dea Lawyers, regarding an employment matter. The appellant sought an appeal from an Industrial Magistrate's decision made under the Fair Work Act 2009 (Cth) to the South Australian Employment Tribunal (SAET). The central issue was whether the SAET had the jurisdiction to hear and determine the appeal, and if not, whether the Federal Court had jurisdiction to hear the reserved question. The case was heard in the Federal Court of Australia.

The legal issues in this case revolved around jurisdictional questions concerning the SAET, the Federal Court, and the Industrial Magistrate. Specifically, the court had to determine whether the SAET had jurisdiction to hear the appeal from the Industrial Magistrate under the Fair Work Act. Additionally, the court needed to decide if an appeal would lie to the Federal Court from an appellate decision of the SAET and whether a specific section of the Statutes Amendment (South Australian Employment Tribunal) Act 2016 (SA) vested the SAET with the necessary jurisdiction.

The Federal Court concluded that the SAET did not have the jurisdiction to determine the appellant's appeal from the Industrial Magistrate's decision. Consequently, the court found that an appeal would not lie from the SAET decision to the Federal Court. The court reasoned that the appellant's appeal from the Industrial Magistrate's orders would lie either to the Industrial Relations Court of South Australia (IRCSA) or directly to the Federal Court. Given that an appeal would not lie to the Federal Court from the SAET's decision, the court lacked the jurisdiction to hear and determine the reserved question. The court directed that a copy of the judgment be provided to the Attorney-General for the State of South Australia and to the President of the SAET.

The final orders of the court were that the SAET did not have jurisdiction to determine the appellant's appeal, and therefore, the Federal Court did not have jurisdiction to hear and determine the reserved question. The court refrained from answering the reserved question and directed that a copy of the judgment be provided to the relevant authorities.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The question concerns the jurisdiction of the SAET to hear and determine an appeal from an Industrial Magistrate exercising jurisdiction under the Fair Work Act 2009 (Cth) (the FW Act), in particular, whether such an appeal lies only to this Court. For the reasons which follow, we consider that this Court does not have jurisdiction to hear and determine the question and that it should, accordingly, refrain from doing so. Background circumstances It is convenient in the following description to use the designations which the parties have in the appeal in the former Industrial Relations Court of South Australia (the IRCSA), this being the appeal which gave rise to the referral. In 2015, the Appellant filed an application in the IRCSA seeking orders that the Respondent pay amounts alleged to be due by him in respect of her employment in March and April 2015. She alleged that she was entitled to the claimed amounts by reasons of the Clerks – Private Sector Award 2010, an Award made under the FW Act. The total sum claimed by the Appellant was $3,189.30. In addition, the Appellant sought an order that the Respondent pay a pecuniary penalty. The Appellant’s summons indicated that she invoked the jurisdiction conferred on the IRCSA by ss 539, 545 and 546 of the FW Act. The application was heard by an Industrial Magistrate in the IRCSA. He concluded that, other than in one relatively minor respect, the Appellant had not proven her claim: Altintas v O’Dea Lawyers [2017] SAIRC 7, at [83]. As the Respondent had conceded that he had not paid the Appellant for four hours which she had worked on 13 April 2015, the Magistrate said that he would make an order with respect to those hours (at [83]) and that he would hear from the parties further with respect to the application for the imposition of a penalty (at [86]). However, there has been no further hearing before the Industrial Magistrate. Indeed, it seems that there has not yet been any order at all giving effect to the Magistrate’s findings. Despite that, on 9 March 2017, the Appellant filed a notice of appeal in the IRCSA. The judge to whom the appeal was allocated, Judge Farrell, was concerned as to the jurisdiction of the IRCSA to hear and determine the appeal. The Court was informed that Judge Farrell’s concern arose from the terms of s 565 of the FW Act. It provides (relevantly):565 Appeals from eligible State or Territory courtsAppeals from original decisions of eligible State or Territory courts(1)An appeal lies to the Federal Court from a decision of an eligible State or Territory court exercising jurisdiction under this Act.(1A)No appeal lies from a decision of an eligible State or Territory court exercising jurisdiction under this Act, except:(a)if the court was exercising summary jurisdiction—an appeal, to that court or another eligible State or Territory court of the same State or Territory, as provided for by a law of that State or Territory; or(b) in any case—an appeal as provided for by subsection (1).Appeals from appellate decisions of eligible State or Territory courts(1B)An appeal lies to the Federal Court from a decision of an eligible State or Territory court made on appeal from a decision that:(a)was a decision of that court or another eligible State or Territory court of the same State or Territory; and(b) was made in the exercise of jurisdiction under this Act.(1C)No appeal lies from a decision to which subsection (1B) applies, except an appeal as provided for by that subsection.…

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In accordance with the reasons in Kronen at [52]‑[63], the Appellant’s appeal from the orders of the Industrial Magistrate (when made) will lie either to the IRCSA (s 565(1A)(a)) or directly to this Court (s 565(1)).Conclusion as to jurisdiction As an appeal would not lie to this Court from a judgment of the SAET on the Appellant’s appeal, the procedure under s 26 of the FCA Act is not available. Accordingly, this Court lacks jurisdiction to hear and determine the reserved question. Apart from saying that, on the basis of the submissions the Court did receive the reasons of Judge Hannon in Pope Nitschke appear to have some force, the Court declines to answer the reserved question. In the light of [36] of these reasons, we will direct that a copy of this judgment be provided to the Attorney‑General for the State of South Australia and to the President of the SAET.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.