Asmar v Fair Work Commission

Case [2015] FCA 16

FEDERAL COURT OF AUSTRALIA

Asmar v Fair Work Commission [2015] FCA 16

Citation: Asmar v Fair Work Commission  [2015] FCA 16
Parties: DIANA ASMAR and KIMBERLEY KITCHING v FAIR WORK COMMISSION
File number: VID 634 of 2014
Judge: BEACH J
Date of judgment: 29 January 2015
Catchwords: INDUSTRIAL LAW – Inquiry by Fair Work Commission – revocation of rights of entry permits under Pt 3-4 of the Fair Work Act 2009 (Cth) – challenge to jurisdiction of Commission – application dismissed
Legislation: Acts Interpretation Act 1901 (Cth) ss 2(2), 33(3)
Fair Work Act 2009 (Cth) ss 480, 505, 507, 508, 510, 512, 513, 562, 563, 598, 601, 603, 625
Judiciary Act 1903 (Cth) s 39B
Cases cited: Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1
Asmar v Fair Work Commission [2014] FCA 1156
Austwide Institute of Training Pty Ltd v Australian Skills Quality Authority (2014) 223 FCR 572
Clough v Leahy (1904) 2 CLR 139
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672
Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566
R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Date of hearing: 5 December 2014
Place: Melbourne
Division: FAIR WORK DIVISION
Category: Catchwords
Number of paragraphs: 104
Counsel for the Applicants: Mr P Morrissey SC with Ms R Shann
Solicitors for the Applicants: Holding Redlich

Counsel for the Respondent:

Counsel for the Intervener (Minister for Employment):

Solicitors for the Intervener (Minister for Employment):

The Respondent filed a submitting appearance

Mr R Niall QC with Mr J Tracey

Herbert Smith Freehills

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

FAIR WORK DIVISION

VID 634 of 2014
BETWEEN:

DIANA ASMAR
First Applicant

KIMBERLEY KITCHING
Second Applicant
AND:

FAIR WORK COMMISSION
Respondent

JUDGE:

BEACH J

DATE OF ORDER:

29 JANUARY 2015

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The applicants’ originating application is dismissed.

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


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

FAIR WORK DIVISION

VID 634 of 2014
BETWEEN:

DIANA ASMAR
First Applicant

KIMBERLEY KITCHING
Second Applicant
AND:

FAIR WORK COMMISSION
Respondent

JUDGE:

BEACH J

DATE:

29 JANUARY 2015

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. The first applicant (Ms Asmar) is an office holder and secretary of the Victoria No 1 Branch of the Health Services Union (the Branch).  The second applicant (Ms Kitching) is an employee and has been the general manager of the Branch.  They are the subject of an inquiry being undertaken by the respondent (the Commission).

  2. The applicants have invoked s 39B of the Judiciary Act 1903 (Cth) (presumably ss 39B(1) and (1A)(c)) and ss 562 and 563 of the Fair Work Act 2009 (Cth) (the…

Continue reading Asmar v Fair Work Commission

Sign in free to access the full text

Details
AGLC
Asmar v Fair Work Commission [2015] FCA 16
Case
[2015] FCA 16
Decision Date

CaseChat Overview and Summary

The case of Asmar v Fair Work Commission involved the applicants, Asmar and others, challenging the jurisdiction of the Fair Work Commission (FWC) to conduct an inquiry under Part 3-4 of the Fair Work Act 2009 (Cth) concerning the revocation of their rights of entry permits. The applicants argued that the FWC lacked the jurisdiction to conduct the inquiry as it did not stem from a dispute within the meaning of the Act. The Fair Work Commission, in turn, argued that it had the requisite jurisdiction to conduct the inquiry. The legal issues before the court were whether the FWC had the jurisdiction to conduct the inquiry, and if so, whether the applicants' challenge to the jurisdiction was valid.

The court considered the relevant statutory provisions, including sections 598 and 603 of the Fair Work Act, and section 33(3) of the Acts Interpretation Act 1901 (Cth). The court found that the FWC had the power to revoke the applicants' entry permits and that the jurisdiction to conduct the inquiry was ancillary to the power to revoke. The court held that the applicants' argument that section 603 did not apply was flawed and that section 33(3) of the AIA could be an adjunct to section 512. The court further held that section 2(2) of the AIA could exclude the operation of section 33(3) if there was a contrary intention, which could be gleaned from the broad scope of section 603.

The court dismissed the applicants' originating application, finding that the FWC had the jurisdiction to conduct the inquiry and that the applicants' challenge to the jurisdiction was invalid. The court held that there was no dispute within the meaning of the Act and that the dispute resolution mechanism was arbitration, suggesting an inter-partes contest rather than a dispute between a permit holder and the Commission. The court concluded that the FWC's role was to adjudicate on an inter-partes dispute rather than to be one of the disputants.

The final order of the court was that the applicants' originating application was dismissed. The applicants were not granted leave to appeal the decision to the Full Court of the Federal Court.

Orders

Orders of the court

1. The applicants’ originating application is dismissed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In addition to s 603, s 598 elaborates on the concept of “a decision” in terms: 598 Decisions of the FWC(1)A reference in this Part to a decision of the FWC includes any decision of the FWC however described. However, to avoid doubt, a reference to a decision of the FWC does not include an outcome of a process carried out in accordance with subsection 595(2) (which deals with the FWC’s power to deal with disputes).Note:Examples of decisions that the FWC makes include making modern awards, approving or refusing to approve enterprise agreements, decisions as to how, when and where a matter is to be dealt with, deciding whether to grant permission to hear an appeal, and decisions in relation to appeals.(2)If the FWC makes a decision that makes or varies an instrument, a reference in this Part to a decision of the FWC includes the FWC’s decision to make or vary the instrument in the particular terms decided.(3) A decision of the FWC that is described as an order must be made by order.Note: An example of a decision that is described as an order is a bargaining order.(4)A decision of the FWC that is not described as an order may be made by order. So far reference has only been made to the Act. But reference should also be made to s 33(3) of the AIA which provides:33 Exercise of powers and performance of functions or duties…Power to make instrument includes power to vary or revoke etc. instrument(3)Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by‑laws) the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument. Nevertheless, s 2(2) of the AIA should also be noted, which provides: 2 Application of Act…(2)However, the application of this Act or a provision of this Act to an Act or a provision of an Act is subject to a contrary intention. Section 33(3) of the AIA is a possible adjunct to s 512, although it may be said that it is either inapplicable or of marginal significance only. If the applicants’ argument that s 603 does not apply is good, then the logic underpinning the acceptance of that argument would dictate that s 2(2) of the AIA would also operate to exclude the operation of s 33(3) of the AIA as an adjunct to s 512. Alternatively, let it be assumed that s 603 does apply as a source of power to revoke. In that eventuality, either reliance upon s 33(3) of the AIA would be superfluous or it may be excluded by operation of s 2(2) because of the otherwise co‑extensive operation of s 603; a “contrary intention” for the purposes of s 2(2) may be gleaned from the broad scope of s 603. Finally, in terms of an identification of the key statutory provisions, one other point should be made before proceeding further. The provisions set out earlier deal expressly with revocation. The applicants and the Minister accepted that the jurisdiction to conduct the Inquiry could only be ancillary to the potential exercise of an express or implied power to revoke the relevant permits. Alternatively expressed, neither the applicants nor the Minister referred to any general investigative statutory power contained in the Act, which was decontextualized or disembodied from any revocation power, that could independently provide the subject matter to support the Commission’s jurisdiction to proceed with the Inquiry. Section 590 is predicated on “any matter before it”, thereby requiring an independent source of jurisdiction to be available to justify the foundation; I discuss s 590 later.SOME UNCONTROVERSIAL LEGAL PROPOSITIONS(a) Anthony Hordern

Ratio Decidendi

Legal Principle Established

Subdivision A, headed “Dealing with disputes”, contains ss 505, 505A and 506. Sections 505A and 506 can be put to one side, but it is appropriate to make several observations concerning s 505. Subsections 505(1)‑(3) provide as follows: 505 FWC may deal with a dispute about the operation of this Part(1)The FWC may deal with a dispute about the operation of this Part, including a dispute about:(a) whether a request under section 491, 492A or 499 is reasonable; or(b)when a right of the kind referred to in section 490 may be exercised by a permit holder on premises of a kind mentioned in subsection 521C(1) or 521D(1), despite that section; or(c)whether accommodation is reasonably available as mentioned in subsection 521C(1) or premises reasonably accessible as mentioned in subsection 521D(1); or(d)whether providing accommodation or transport, or causing accommodation or transport to be provided, would cause the occupier of premises undue inconvenience as mentioned in paragraph 521C(2)(a) or 521D(2)(a); or(e)whether a request to provide accommodation or transport is made within a reasonable period as mentioned in paragraph 521C(2)(c) or 521D(2)(c).Note 1:Sections 491 and 499 deal with requests for permit holders to comply with occupational health and safety requirements.Note 2:Section 492A deals with requests for a permit holder to take a particular route to a room or area in which an interview is to be conducted or discussions held.Note 3:Section 490 deals with when rights under Subdivision A, AA or B of Division 2 of this Part may be exercised.Note 4:Sections 521C and 521D deal with accommodation in and transport to remote areas for the purpose of exercising rights under this Part.(2)The FWC may deal with the dispute by arbitration, including by making one or more of the following orders:(a) an order imposing conditions on an entry permit;(b) an order suspending an entry permit;(c) an order revoking an entry permit;(d)an order about the future issue of entry permits to one or more persons;(e)any other order it considers appropriate.Note:The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).(3) The FWC may deal with the dispute:(a) on its own initiative; or(b) on application by any of the following to whom the dispute relates:(i) a permit holder;(ii) a permit holder’s organisation;(iii) an employer;(iv) an occupier of premises. In terms of s 505, and notwithstanding that the power thereunder can be exercised on the initiative solely of the Commission (see s 505(3)), nevertheless there must be “a dispute” (see the prefatory words to s 505(1)). In the present case, there is no “dispute” of the type envisaged by s 505(1). The dispute resolution mechanism is stipulated to be “arbitration”. Both the concept and the mechanism suggest an inter-partes contest as distinct from a dispute between a permit holder and the Commission. First, the subject categories in s 505(1) are so suggestive and would suggest a dispute between one or more of the persons described in s 505(3)(b). Second, the mechanism in s 505(2) suggests that the Commission's role is to adjudicate on an inter-partes dispute rather than to be one of the disputants. Third, although s 505(3)(a) refers to the Commission acting of its own initiative, this concerns the Commission unilaterally stepping in and resolving a dispute between other parties, rather than itself being a disputant. Fourth, to so construe s 505 is also consistent with how the concept of "dispute" is used in s 505A. Fifth, to so construe s 505 is also consistent with the complementary but different role played by s 507. Paragraphs 505(2)(a)-(c) can be triggered by an inter-partes dispute. Contrastingly, paragraphs 507(1)(a)-(c) are triggered differently. If paragraphs 505(2)(a)-(c) could be triggered on the initiative of the Commission as itself a disputant, the conditions for the trigger in s 507(1) may be rendered otiose.