Application/Notification by "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" Known as the Australian Manufacturing Workers' Union (AMWU)

[2016] FWCFB 1131

[2016] FWCFB 1131

DECISION

Fair Work (Registered Organisations) Act 2009
s.158(1) RO Act - Application for alteration of eligibility rules
Australian Manufacturing Workers' Union (AMWU)
(D2014/70)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT LAWRENCE
COMMISSIONER JOHNS	SYDNEY, 23 FEBRUARY 2016
ResMed Limited stay application.

[1]        This decision reproduces in edited form the decision and reasons which were stated on

transcript at the conclusion of the hearing conducted in relation to this matter on 18 February

2016.

[2]        These proceedings are concerned with an application by the Australian Manufacturing

Workers Union (AMWU) for the Commission’s consent to an amendment of its eligibility

rule to extend its capacity to enrol as members persons employed by ResMed Limited

(ResMed) or otherwise working at ResMed’s facility at Bella Vista in Sydney.

[3] On 18 January 2016 we issued a decision, the citation of which is [2016] FWCFB 22,

in which we determined that we would consent to the AMWU’s rule amendment in part and

directed the AMWU and ResMed to file a draft of a proposed rule change to give effect to our

decision and any written submissions they wished to make in that connection.

[4]        On 28 January 2016 ResMed made an application to the Federal Court of Australia in

which it sought orders to the following effect:

1.          A declaration that the AMWU’s rule amendment was not capable of being

consented to under s.158 of the Fair Work (Registered Organisations) Act

2009 (RO Act).

2.          An order in the nature of prohibition restraining the Commission from taking

any further steps in relation to the AMWU’s application.

3.          Such further orders as the Court considers appropriate.

[5]        ResMed also claimed interlocutory relief restraining the AMWU and the Commission

from taking any further steps in relation to the AMWU’s application pending the hearing and

determination of its Federal Court application.
[2016] FWCFB 1131

[6]        ResMed’s application discloses that the legal basis of its challenge is that the

AMWU’s eligibility rule amendment had not been made according to its rules, that we had no

proper basis to find to the contrary in our earlier decision, and that accordingly the

jurisdictional prerequisite in s.158(2) of the RO Act to the grant of consent could not be met.

[7]        ResMed has now made an application that the proceedings before us be stayed, or

alternatively that the proceedings be adjourned, until its Federal Court application has been

heard and determined.

[8]        In support of its application, ResMed has referred us to the judgment of Logan J in the

Federal Court Full Court decision in Teys Australia Beenleigh Pty Ltd v Australasian Meat

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Industry Employees Union . That case involved, among other things, an application for writs

of certiorari and prohibition against this Commission in respect of a certain decision and order

made by the Commission. The Commission had filed a submitting appearance in the matter

(save as to costs). In his judgment Logan J expressed the view that the Commission, having

entered a submitting appearance, ought not to have continued to exercise jurisdiction in

respect of the matters the subject of the challenged decision and order. Logan J said at [122]:

“…where the respondent officer of the Commonwealth signifies to the Court either at

the directions hearing or beforehand that he or she will abide any order of the Court

save as to costs, that implicitly carries with it an intimation that that officer will not

thereafter act in a way which would render the orders sought futile.”

1. The other members of the Full Court did not adopt this view. We were not taken to

any authority supporting the view of Logan J.

[10]      We would not read the judgment of Logan J as supporting the view that in any case

where an application for judicial review is filed in respect of a Commission decision, any

submitting appearance entered by the Commission would require the Commission to cease

exercising jurisdiction in relation to the matter. The practical effect of that would be that the

mere lodgement of an application for judicial review would operate as an automatic stay on

the Commission further exercising its jurisdiction, regardless of the merits of the Court

application. The gravamen of Logan J’s judgment seems to us to be that the Commission

ought to refrain from further exercising its jurisdiction where to do so would render the court

application a futility.

[11]      We do not consider that any further step taken by us, including the final grant of

consent in part to the AMWU’s rule amendment, would render ResMed’s application to the

Federal Court a futility. A subsequent conclusion by the Court that this Commission exceeded

its jurisdiction in granting such consent would permit the Court to grant certiorari and quash

the Commission’s order, which would constitute a fully effective remedy.

[12] ResMed has not otherwise demonstrated that any balance of convenience

consideration favours the grant of the stay or adjournment which it seeks. Its case in this

respect did not rise above the level of generalised assertion. We are not satisfied that ResMed

will suffer any significant prejudice if we continue to exercise jurisdiction in this matter prior
[2016] FWCFB 1131

to the determination of its Federal Court application. Accordingly we decline to order the stay

or adjournment sought by ResMed, and its application in that respect is dismissed.

[13]      We note that, despite having filed its application in the Federal Court over three weeks

ago, ResMed does not appear to have taken any step to prosecute its claim for interlocutory

relief before the Court. Nonetheless, in order to ensure that it has an opportunity to do so, we

will refrain from making any final orders in this matter for a minimum period of two weeks.

ResMed is also granted liberty to apply in the event that within that period the Court lists its

application for interlocutory relief for hearing on a date that is beyond that period.

[14]      We note that the parties have made various requests for the opportunity to make

further submissions in relation to the form of the proposed rule change that is to be consented

to and we will make directions in due course permitting that to occur.

VICE PRESIDENT

Appearances:

A. Howell of counsel for the Australian Manufacturing Workers’ Union.

Y. Shariff counsel for ResMed Limited.

Hearing details:

2016.

Sydney:

18 February.

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(2015) 230 FCR 565