FEDERAL COURT OF AUSTRALIA
Australian Workers’ Union v John Holland Pty Ltd [2023] FCA 892
File number(s): NSD 440 of 2023 Judgment of: JACKMAN J Date of judgment: 2 August 2023 Catchwords: PRACTICE AND PROCEDURE – application for temporary stay of proceedings pending determination of related Fair Work Commission proceedings – where prospective relief is sought and only available in the competing proceeding – where the competing proceeding is a non-judicial proceeding – where a temporary stay favours the health and safety of workers, and the timely and efficient construction of public works – temporary stay granted Legislation: Fair Work Act 2009 (Cth) ss 12, 481, 482, 502, 505, 546, 577, 595, 599
Work Health and Safety Act 2011 (Cth) ss 19, 117, 118, 120, 142
Federal Court Rules 2011 (Cth) r 16.32
Cases cited: Bella Products Pty Ltd v Creative Designs International Ltd [2009] FCA 868; (2009) 258 ALR 538
Henry v Henry [1996] HCA 51; (1996) 185 CLR 571
Michael Wilson & Partners Ltd v Emmott [2021] NSWCA 315; (2021) 396 ALR 497
QSuper Board v Australian Financial Complaints Authority Limited [2020] FCAFC 55; (2020) 276 FCR 97
ResMed Limited vAustralian Manufacturing Workers’ Union (No 2) [2015] FCA 537; (2015) 243 FCR 366
Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd [1992] FCA 71; (1992) 34 FCR 287
Division: Fair Work Division Registry: New South Wales National Practice Area: Employment and Industrial Relations Number of paragraphs: 39 Date of hearing: 2 August 2023 Counsel for the Applicant: Mr C J Tran Solicitor for the Applicant: Maurice Blackburn Counsel for the Respondent: Mr Y Shariff SC and Mr A S Smith Solicitor for the Respondent: Minter Ellison ORDERS
NSD 440 of 2023 BETWEEN: THE AUSTRALIAN WORKERS' UNION
Applicant
AND: JOHN HOLLAND PTY LTD (ACN 004 282 268)
Respondent
ORDER MADE BY:
JACKMAN J
DATE OF ORDER:
2 AUGUST 2023
THE COURT ORDERS THAT:
1.These proceedings be stayed until matter number RE2023/365 in the Fair Work Commission is heard and determined, or until further order of the Court.
2.The respondent is to notify the Court within three business days of matter number RE2023/365 being determined by the Fair Work Commission.
3.The respondent be excused, until further order, from compliance with r 16.32 of the Federal Court Rules 2011 (Cth).
4.The parties have liberty to apply on three days’ notice.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
JACKMAN J
This is an application for a temporary stay of these proceedings pending the hearing and determination by the Fair Work Commission (FWC) of the matter identified as RE2023/365 (the FWC Proceedings), commenced by John Holland Pty Ltd (John Holland) against the Australian Workers’ Union (AWU).
John Holland and CPB Contractors Pty Ltd (CPB) are…
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- Case
- [2023] FCA 892
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether to grant a temporary stay of the Federal Court proceedings in favour of the FWC proceedings, which are non-judicial in nature. The court considered several factors, including the potential for the FWC to resolve a pressing and practical controversy regarding future conduct and the conditions for bringing air monitoring equipment onto the project site. The court also assessed whether the FWC could effectively balance competing interests and determine legal questions as part of its broader powers. The argument presented by counsel for John Holland was that the FWC would be better suited to address the forward-looking aspects of the dispute, given its jurisdiction to establish a prescriptive regime for the future conduct of entry exercises.
The court ultimately decided to grant a temporary stay of the Federal Court proceedings in favour of the FWC. The reasoning behind this decision included the potential for the FWC to efficiently and effectively resolve the pressing issues concerning the future conduct of AWU officials on the project site. The court noted that the FWC is empowered to exercise its powers in a quick, informal manner, which would be beneficial in this context. Additionally, the court acknowledged that the evidence prepared for the FWC proceedings could be relevant and useful in the Federal Court proceedings if they were to proceed. The stay was intended to promote the health and safety of workers and the timely and efficient construction of public works.
The orders granted by the court included a stay of the Federal Court proceedings until the related FWC proceedings are heard and determined, with the respondent required to notify the court of any outcome within three business days. The respondent was also excused from compliance with certain court rules until further order. The parties were granted liberty to apply on three days’ notice.
Orders
Orders of the court
1. These proceedings be stayed until matter number RE2023/365 in the Fair Work Commission is heard and determined, or until further order of the Court.
2. The respondent is to notify the Court within three business days of matter number RE2023/365 being determined by the Fair Work Commission.
3. The respondent be excused, until further order, from compliance with r 16.32 of the Federal Court Rules 2011 (Cth).
4. The parties have liberty to apply on three days’ notice.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
There was no dispute concerning the correctness in principle of that list of relevant factors. However, counsel for the AWU, Mr Tran, submitted that the formulation of the factors, and the weight to be assigned to them, may be affected by the fact that in the present case the competing proceedings are not proceedings in a court, referring to ResMed Limited vAustralian Manufacturing Workers’ Union (No 2) [2015] FCA 537; (2015) 243 FCR 366 at [37] (Perry J).Submissions and Consideration At the forefront of the argument by counsel for John Holland, Mr Shariff SC with whom Mr Smith appeared, is the proposition that the FWC Proceedings will resolve a pressing and practical controversy between the parties as to whether, on future occasions, officials of the AWU will be entitled to bring air monitoring equipment onto the Project site and, if so, on what conditions (if any). Mr Shariff described that as being the real dispute and the heart of the dispute. Mr Shariff accepted that the dispute as to whether John Holland acted lawfully on 1 May 2023 would go some way to resolving that dispute, but only the FWC (and not the Federal Court) can lay down a prescriptive regime for the future conduct of exercises of the right of entry. Mr Shariff submitted that the FWC would have to give consideration to the legal questions of construction which are also raised in the Federal Court Proceedings, but would do so as steps on the way to the practical exercise of broader powers, balancing the competing interests, which are available only to it. Mr Shariff submitted, and I accept, that it is permissible and orthodox for such a tribunal to determine matters of legal right as steps along the way to the exercise of its discretionary powers: QSuper Board v Australian Financial Complaints Authority Limited [2020] FCAFC 55; (2020) 276 FCR 97 at [92]-[102] (Moshinsky, Bromwich and Derrington JJ). Mr Shariff submitted that the reference to these issues as “ancillary matters” which “may emerge as disputed matters” in the FWC Application, should not be read in the sense that these issues are or will be subsidiary. Rather, they were not the issues which were actually in play at the time the FWC Application was filed, but are likely to become the real issues in contest as the dispute evolves through the various stages of conciliation and arbitration in the FWC. To the extent that the FWC Application raises questions of past conduct, Mr Shariff submits that the FWC Application raises questions arising on all the previous occasions when AWU officials sought entry to the Project (expressed in the FWC Application to involve all the occasions before 24 April 2023 when the FWC Application was filed), not just the three occasions which occurred on 1 May 2023. In terms of the orders sought in the FWC Application, Mr Shariff candidly accepted that there were elements of the declarations sought which would be beyond the jurisdiction of the FWC, but submitted that the FWC had not exceeded its jurisdiction or threatened to do so, and the relief ultimately to be awarded by the FWC would be moulded according to the dispute as it evolves. He drew attention to s 599 of the FW Act to the effect that the FWC is not required to make a decision in the terms applied for in the FWC Application. Mr Shariff submitted that the matters that John Holland advances in the FWC Proceedings extend beyond questions of legal right, and they are forward-looking in that they are directed to the future conduct of AWU officials seeking to enter the Project and the conditions (if any) on which they may be entitled to use dust monitoring equipment. Mr Shariff also draws attention to the requirement in s 577(1)(b) of the FW Act that the FWC must exercise its powers in a manner which is quick, informal and avoids unnecessary technicality, and submits that it is not uncommon for a conciliation conference in the FWC to refine the issues for arbitration. Mr Shariff submits that if the Federal Court Proceedings are ultimately pursued, the evidence prepared for the FWC Proceedings will not be wasted, because that evidence can then be deployed in substance to the extent relevant in the Federal Court Proceedings.