FEDERAL COURT OF AUSTRALIA
Asmar v Fair Work Commission [2014] FCA 1156
Citation: Asmar v Fair Work Commission [2014] FCA 1156 Parties: DIANA ASMAR and KIMBERLEY KITCHING v FAIR WORK COMMISSION File number: VID 634 of 2014 Judge: BEACH J Date of judgment: 28 October 2014 Catchwords: PRACTICE AND PROCEDURE – inquiry by the Fair Work Commission – revocation of rights of entry permits under Pt 3-4 of the Fair Work Act 2009 (Cth) – objection to jurisdiction of the Commission – application for interlocutory injunction restraining Commission from proceeding with inquiry until determination made on jurisdiction – duty to determine jurisdiction first – prima facie case and balance of convenience established – injunction granted Legislation: Acts Interpretation Act 1901 (Cth) ss 2(2), 33(3)
Fair Work Act 2009 (Cth) Pt 3-4, ss 505, 505A, 507, 512, 513, 586(a), 603, 625
Judiciary Act 1903 (Cth) s 39BCases cited: Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1
Bray v F Hoffman-La Roche Ltd (2003) 200 ALR 607
Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566
Old UGC Inc v IRC(NSW) (2006) 225 CLR 274
R v Blakeley; Ex parte Association of Architects etc of Australia (1950) 82 CLR 54
R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190;
R v Fulham, Hammersmith and Kensington Rent Tribunal; Ex parte Zerek [1951] 2 KB 1
Re Boulton; Ex parte CFMEU (1998) 85 IR 468
Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 66 FCR 511Date of hearing: 28 October 2014 Place: Melbourne Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 38 Counsel for the First Applicant: Mr R Van De Wiel QC with Mr M Champion Solicitors for the First Applicant: Holding Redlich Counsel for the Second Applicant: Mr P Morrissey SC with Ms R Shann Solicitors for the Second Applicant: Slater and Gordon Lawyers Counsel for the Respondent The Respondent did not appear
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION
VID 634 of 2014
BETWEEN: DIANA ASMAR
First ApplicantKIMBERLEY KITCHING
Second ApplicantAND: FAIR WORK COMMISSION
Respondent
JUDGE:
BEACH J
DATE OF ORDER:
28 OCTOBER 2014
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The Applicants have leave to file and serve an amended originating application in the form of the proposed amended originating application filed today.
2.Subject to paragraph 3 hereof, until the hearing and determination of this proceeding or until further order, the Fair Work Commission be restrained from taking any action, step or proceeding pursuant to the Terms of Inquiry issued by the Commission under its seal dated 18 July 2014 set out and referred to in paragraphs 1-16 thereof.
3.The injunction referred to in paragraph 2 shall be discharged if, prior to the hearing and determination of this…
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CaseChat Overview and Summary
This proceeding was brought by Ms Diana Asmar, the secretary of the ACTU National Union of Workers, and Ms Kimberley Kitching, the General Manager of the union, against the Fair Work Commission and others. The applicants sought an interlocutory injunction to restrain the Commission from proceeding with its inquiry into the alleged improper conduct of the applicants and others in obtaining right of entry permits under the Fair Work Act 2009 (Cth). The applicants argued that the Commission had no jurisdiction to conduct the inquiry without first determining its jurisdiction, and that the Commission had already acted in excess of its jurisdiction by issuing notices of potentially adverse findings and Terms of Inquiry. The applicants sought an injunction pending the determination of the jurisdictional issue, as well as leave to amend their originating application.
The court was required to determine whether an interlocutory injunction should be granted restraining the Commission from proceeding with its inquiry until it had determined its jurisdiction. The court considered the test for interlocutory relief and whether the applicants had established a prima facie case and that the balance of convenience favoured an injunction. The court also considered whether the Commission should be allowed to rule on its jurisdiction before the interlocutory injunction was decided. The court concluded that the grounds of challenge to the Commission's jurisdiction were reasonably arguable, and that it was arguably erroneous for the Commission to proceed without first ruling on its jurisdiction. The court found that a prima facie case had been established and that the balance of convenience favoured the grant of an injunction.
The court granted the applicants an interlocutory injunction restraining the Commission from proceeding further in relation to certain aspects of its inquiry until it had adjudicated upon and ruled on its jurisdiction. The injunction would be discharged if the Commission ruled on its jurisdiction prior to the hearing and determination of the proceeding. The court also granted the applicants leave to amend their originating application. The further hearing of the proceeding was adjourned to allow for directions. The costs of the applicants were to be their costs in the cause.
The court was required to determine whether an interlocutory injunction should be granted restraining the Commission from proceeding with its inquiry until it had determined its jurisdiction. The court considered the test for interlocutory relief and whether the applicants had established a prima facie case and that the balance of convenience favoured an injunction. The court also considered whether the Commission should be allowed to rule on its jurisdiction before the interlocutory injunction was decided. The court concluded that the grounds of challenge to the Commission's jurisdiction were reasonably arguable, and that it was arguably erroneous for the Commission to proceed without first ruling on its jurisdiction. The court found that a prima facie case had been established and that the balance of convenience favoured the grant of an injunction.
The court granted the applicants an interlocutory injunction restraining the Commission from proceeding further in relation to certain aspects of its inquiry until it had adjudicated upon and ruled on its jurisdiction. The injunction would be discharged if the Commission ruled on its jurisdiction prior to the hearing and determination of the proceeding. The court also granted the applicants leave to amend their originating application. The further hearing of the proceeding was adjourned to allow for directions. The costs of the applicants were to be their costs in the cause.
Orders
Orders of the court
1. The Applicants have leave to file and serve an amended originating application in the form of the proposed amended originating application filed today.
2. Subject to paragraph 3 hereof, until the hearing and determination of this proceeding or until further order, the Fair Work Commission be restrained from taking any action, step or proceeding pursuant to the Terms of Inquiry issued by the Commission under its seal dated 18 July 2014 set out and referred to in paragraphs 1-16 thereof.
3. The injunction referred to in paragraph 2 shall be discharged if, prior to the hearing and determination of this proceeding, the Commission rules on and gives short written or oral reasons on the question of its jurisdiction to hear and determine the matters raised in paragraphs 1-16 of the said Terms of Inquiry.
4. The further hearing of this originating application be adjourned to 9.30 am on 17 November 2014 for directions.
5. The costs of the Applicants will be their costs in the cause.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
The Commission has been given notice of the present application. It has filed a document described as a “submitting notice” stating that “[t]he Respondent submits to any order the Court may make in the proceeding”.BACKGROUND FACTS As I have said, Ms Asmar is an office holder and is the secretary of the Branch. Ms Kitching is a current employee of the Branch and acts in the role of General Manager. Ms Asmar holds a right of entry permit issued under the Act. Ms Asmar applied for this permit pursuant to s 512 of the Act and such a permit was issued on 31 January 2013. In August 2013, Ms Leonie Flynn, the assistant secretary of the Branch, made allegations to the Commission about the manner in which the Branch was being managed by Ms Asmar. Among those allegations were assertions that Ms Asmar and others had not undertaken their own right of entry tests for right of entry permits under the Act. It was asserted that another employee, Ms Kitching, had completed tests on their behalf. I do not need to go further into those allegations and I say nothing about their merits. In September 2013, the Director, Regulatory Compliance Branch of the Commission, Mr Chris Enright, commenced his own inquiry into whether members of the Branch had, in fact, engaged in such activities. Mr Enright has various powers under the Act which have been delegated to him under s 625. Between September 2013 and March 2014, as part of his inquiry, Mr Enright conducted various interviews, obtained documents and the like. On 26 March 2014, Mr Enright issued various notices of potentially adverse findings to various employees and office holders of the Branch, including Ms Kitching. Mr Enright foreshadowed in those notices that he proposed to make various final determinations. I do not need to go into the detail of the content of those notices. On 30 April 2014, Holding Redlich, on behalf of the Union, wrote to Ross J, President of the Commission, requesting that a member of the Commission other than Mr Enright deal with the matter. On 9 May 2014, Ross J made a direction to transfer the matter to Vice President Watson. On 17 July 2014, the Commission issued Terms of Inquiry into the matters that had been referred to Vice President Watson. These Terms included the following matters:As to Ms. Diana Asmar (RE 2013/426)1.Whether in order to obtain a ROE permit, Ms. Asmar made an inaccurate declaration for a ROE permit dated 29 January 2013 that she had received appropriate training about the rights and responsibilities of a permit holder, namely the ACTU Federal Right of Entry online training course completed on 25 January 2013.2.Whether the right of entry permit issued to Ms. Asmar should be revoked.As to Mr. David Eden (RE 2013/747)3.Whether in order to obtain a ROE permit, Mr. Eden made an inaccurate declaration for a ROE permit dated 26 March 2013 that he had received appropriate training about the rights and responsibilities of a permit holder, namely the ACTU Federal Right of Entry online training course completed on 26 March 2013.4.Whether the right of entry permit issued to Mr. Eden should be revoked.As to Mr. Darryn Rowe (RE 2013/730)5.Whether in order to obtain a ROE permit, Mr. Rowe made an inaccurate declaration for a ROE permit dated 21 March 2013 that he had received appropriate training about the rights and responsibilities of a permit holder, namely the ACTU Federal Right of Entry online training course completed on 20 March 2013.6.Whether the right of entry permit issued to Mr Rowe should be revoked.As to Mr. Dean Sherriff (RE 2013/580)7.Whether in order to obtain a ROE permit, Mr. Sherriff made an inaccurate declaration for a ROE permit dated 20 February 2013 that he had received appropriate training about the rights and responsibilities of permit holder.8.Whether in order to obtain a ROE permit, Mr. Sherriff made an inaccurate declaration for a ROE permit dated 12 March 2013 that he had received appropriate training about the rights and responsibilities of a permit holder, namely the ACTU Federal Right of Entry online training course completed on 15 February 2013.9.Whether in order to obtain a ROE permit, Mr. Sherriff made an inaccurate declaration tor a ROE permit dated 20 February 2013 that he had "never been convicted of an offence against a law of Commonwealth, State, Territory or a foreign country, involving: … intentional use of violence against another person or intentional damage or destruction of property".10.Whether in order to obtain a ROE permit, Mr. Sherriff made an inaccurate declaration for a ROE permit dated 12 March 2013 that he had "never been convicted of an offence against a law of Commonwealth, State, Territory or a foreign country, involving: ... intentional use of violence against another person or intentional damage or destruction of property".11.Whether the right of entry permit issued to Mr. Sherriff should be revoked.As to Mr. Nick Katsis (RE 2013/583)12.Whether in order to obtain a ROE permit, Mr. Katsis made an inaccurate declaration for a ROE permit dated 19 February 2013 that he had received appropriate training about the rights and responsibilities of permit holder.13.Whether in order to obtain a ROE permit, Mr. Katsis made an inaccurate declaration for a ROE permit dated 12 March 2013 that he had received appropriate training about the rights and responsibilities of permit holder, namely the ACTU Federal Right of Entry online training course completed on 15 February 2013.14.Whether the right of entry permit issued to Mr. Katsis should be revoked.Mr. Steven Mitchell (RE 2013/585)15.Whether Ms. Kimberley Kitching accessed Mr. Mitchell's ACTU ROE course on 15 February 2013.16.Whether the right of entry permit issued to Mr. Mitchell should be revoked.As to Ms. Jeanine Ghantous (RE 2013/1291)17.Whether having regard to the duration of the training and testing Ms. Ghantous received, the FWC is satisfied that Ms. Ghantous received appropriate training in accordance with the requirements of the FW Act.18.Whether the application for a right of entry permit should be refused for Ms. Ghantous.As to Ms. Rose Charbel (RE 2013/1438)19.Whether having regard to the duration of the training and testing Ms. Charbel received, the FWC is satisfied that Ms. Charbel received appropriate training in accordance with the requirements of the FW Act.20.Whether the application for a right of entry permit should be refused for Ms. Charbel.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
In the present case, a challenge to jurisdiction has been made. The Commission ought now rule upon it. The grounds of challenge are reasonably arguable. And at the least, it was arguably erroneous to proceed without first ruling thereon. In terms of the test for an interlocutory injunction, a prima facie case is well established. Moreover, the balance of convenience favours the grant of an injunction.CONCLUSION In my view, an interlocutory injunction should go against the Commission restraining it from proceeding further in relation to certain aspects of its inquiry until it has adjudicated upon and ruled on its jurisdiction. Once it has ruled on its jurisdiction, the applicants may then seek to challenge that determination as they see fit, including making any necessary amendments to their originating application before me. But I do not consider that I should presently rule on the question of the Commission’s jurisdiction without first giving the Commission the further opportunity to rule on that question. But at the least, the Commission should not proceed further without properly determining its jurisdiction in the first instance.
Ratio Decidendi
Legal Principle Established
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