Bognar v Skilled Offshore Pty Ltd & Anor
[2016] FCCA 2962
•30 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BOGNAR v SKILLED OFFSHORE PTY LTD & ANOR | [2016] FCCA 2962 |
| Catchwords: COURTS AND JUDGES – Whether jurisdiction with respect to alleged accessorial liability where person not named on certificate issued by Fair Work Commission. |
| Legislation: Acts Interpretation Act 1901 (Cth), ss.15AA, 15AB Australian Human Rights Commission Act 1986 (Cth), s.46PO Fair Work Act 2009 (Cth), Ch.3, Pts.3-1, 4-1, Divs.1 & 8, ss.3(e), 12, 336, 337, 340, 342, 346, 365, 368, 369, 370, 371, 539, 540, 541, 543, 544, 550, 570, 589, 590, 592 Fair Work Amendment Act 2013 (Cth) |
| Cases cited: Rentuza v Westside Auto Wholesale [2009] FMCA 1022; (2009) 190 IR 207; (2009) 236 FLR 231 Rogers v The Queen (1994) 181 CLR 251; (1994) 74 A Crim R 462; (1994) 68 ALJR 688; (1994) 123 ALR 417 Hansard, House of Representatives, 3 December 2008, 12431 |
| Applicant: | GEOFFREY MARK BOGNAR |
| First Respondent: | SKILLED OFFSHORE PTY LTD |
| Second Respondent: | SAIPEM (PORTUGAL) COMMERCIO MARITIMO, SU, LDA |
| File Number: | PEG 302 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | On the papers |
| Date of Last Submission: | 27 January 2016 |
| Delivered at: | Perth |
| Delivered on: | 30 November 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Turner Freeman |
| Solicitors for the First Respondent: | Corrs Chambers Westgarth |
| Solicitors for the Second Respondent: | HLS Legal Pty Ltd |
ORDERS
That the second respondent’s application in a case filed 26 August 2015 be dismissed.
That the matter be adjourned to a directions hearing at 4.30pm on 2 December 2016.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 302 of 2015
| GEOFFREY MARK BOGNAR |
Applicant
And
| SKILLED OFFSHORE PTY LTD |
First Respondent
| SAIPEM (PORTUGAL) COMMERCIO MARITIMO, SU, LDA |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application in a case filed on 26 August 2015 the second respondent, Saipem (Portugal) Commercio Maritimo, SU, LDA (“Saipem”) seeks orders from the Court:
a)removing Saipem as a party to these proceedings pursuant to r.11.04 of Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) for want of jurisdiction; and/or
b)dismissing the proceedings insofar as they relate to Saipem pursuant to r.13.10 of the FCC Rules on the basis that:
i)the Court does not have jurisdiction to hear and determine the claim against Saipem;
ii)the claim in relation to the alleged dismissal of the applicant, Mr Geoffrey Mark Bognar (“Mr Bognar”) has no reasonable prospects of success; and/or
iii)to hear and determine the claims against Saipem would be an abuse of process; and
c)further and in the alternative, an order that the proceedings against Saipem be adjourned pending the outcome of any Commission application by Mr Bognar against Saipem pursuant to s.365 of the Fair Work Act 2009 (Cth) (“FW Act”).
Background
At all material times:
a)Mr Bognar was employed by the first respondent, Skilled Offshore Pty Ltd (“Skilled Offshore”) as a Field Joint Coater on the pipe-lay vessel the Castorone;
b)Saipem operated the Castorone which undertook pipelay activities for the Ichthys Liquefied Natural Gas Project; and
c)Saipem had a contract with Skilled Offshore whereby employees of Skilled Offshore, including Mr Bognar, operated the pipe production line on the Castorone.
On 13 May 2015, Mr Bognar filed a general protections form F8 (“Form F8 Application”) with the Fair Work Commission (“FWC”).
On 28 May 2015, Mr Bognar and Skilled Offshore participated in a conciliation conference in relation to the dispute raised in the Form F8 Application (“Conciliation”).
On 23 June 2015, the FWC issued a certificate pursuant to s.368 of the FW Act arising from the Conciliation (“Section 368 Certificate”).
On 7 July 2015, Saipem was served with Mr Bognar’s originating application to the Fair Work Division of the Court, Form 2 and Statement of Claim (“Originating Application”, “Form 2” and “Statement of Claim”, collectively “Application”).
On 3 August 2015, Saipem put Mr Bognar’s representative on notice of its contention that the Court did not have jurisdiction to hear and determine the Application insofar as the Application related to Saipem.
On 4 August 2015, orders were made by the Court in terms that Saipem file and serve an application to discontinue or dismiss the proceedings against Saipem. Saipem’s application in a case seeking the orders set out at [1] above was filed on 26 August 2015.
Legislative Framework
Section 365 of the FW Act provides for applications to be made to the FWC to deal with a dismissal dispute, and is as follows:
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
Section 368 of the FW Act provides that the Commission must issue a certificate if satisfied that all reasonable attempts to resolve the dispute are likely to be unsuccessful and advise the parties accordingly, and is as follows:
(1) If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).
(2) Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).
(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:
(a) the FWC must issue a certificate to that effect; and
(b) if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.
(4) A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.
Prior to the Fair Work Amendment Act 2013 (Cth) (“FW Amendment Act”), the content of s.368 of the FW Act was contained in s.369 of the FW Act.
Section 370 of the FW Act provides the jurisdictional preconditions required to be satisfied in order for a general protections claim to be made in the Court, and is as follows:
A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a) both of the following apply:
(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;
(ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or
(b) the general protections court application includes an application for an interim injunction.
Prior to the FW Amendment Act the content of s.370 of the FW Act was contained in s.371 of the FW Act.
Section 550 of the FW Act provides for accessorial liability in relation to a general protections claim, and is as follows:
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
Rule 45.06 of the FCC Rules reflects the requirement in the FW Act that an application for a general protections claim must be accompanied by a certificate issued by the FWC, and is as follows:
An application for an order in relation to an allegation that an employee was dismissed in contravention of a general protection mentioned in Part 3-1 of the Act must:
(a) be in accordance with the approved form; and
(b) be accompanied by:
(i) a claim in accordance with the approved form; and
(ii) unless the application includes an application for an interim injunction, a certificate issued by the Fair Work Commission under the Act that provides that the Fair Work Commission is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.
Rule 11.04 of the FCC Rules provides that a party may apply to be removed as a party to a proceeding, and is as follows:
(1) A party to a proceeding may apply to the Court to be removed as a party.
(2) The party must file an affidavit stating:
(a) the relationship (if any) of the applicant to each other party; and
(b) the evidence in support of the application.
(2) The party must serve a copy of the application and affidavit on each other party in the proceeding.
Rule 13.10 of the FCC Rules provides that the Court may dispose of proceedings where satisfied that a claim has no reasonable prospect of success or is an abuse of the process of the Court, and is as follows:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
Other relevant legislative provisions are referred to as necessary below.
Submissions
Saipem’s Submissions
Saipem’s submissions concerning the dismissal of the proceedings were as follows:
a)the proceedings insofar as they relate to Saipem should be dismissed or Saipem removed as a party to the proceedings because the Court does not have jurisdiction to hear Mr Bognar’s claims against Saipem: Rentuza v Westside Auto Wholesale [2009] FMCA 1022; (2009) 190 IR 207; (2009) 236 FLR 231 at [23] and [24] per Lucev FM (“Rentuza”); Wills v Passeck [2011] FMCA 39 (“Wills”);
b)further and in the alternative:
i)Mr Bognar’s claim that Saipem dismissed Mr Bognar has no reasonable prospects of success given Mr Bognar was not employed by Saipem; and
ii)to hear and determine Mr Bognar’s claims against Saipem would be an abuse of process,
and accordingly the claims against Saipem should be dismissed.
Saipem’s submissions concerning the Court's jurisdiction were as follows:
a)it is the Court’s first duty to be satisfied that it has jurisdiction to deal with the Application: Rentuza at [23] and [24] per Lucev FM;
b)matters in respect of which the Court has no jurisdiction must be dismissed: Rentuza at [23] and [24] per Lucev FM;
c)the Court does not have jurisdiction to hear and determine the Application against Saipem because the Section 368 Certificate that pertains to Mr Bognar does not name Saipem; and
d)further and in the alternative, there is no Section 368 Certificate that pertains to Mr Bognar and Saipem given that the scope of the alleged dispute to which the Section 368 Certificate relates:
i)is confined to matters in dispute between Mr Bognar and Skilled Offshore; and
ii)does not extend to the alleged dispute between Mr Bognar and Saipem; and
e)the existence of a Section 368 Certificate “in relation to the dispute” is a jurisdictional precondition that is required to enliven the Court's jurisdiction: Sumontha v Action Workforce Australia Pty Ltd [2014] FCCA 725 at [22] per Judge Jones; Shea v TruEngergy Services Pty Ltd (No. 1) [2012] FCA 628; (2012) 204 FCR 456; (2012) 222 IR 156; (2012) 64 AILR 101-648 at [61] per Dodds-Streeton J (“Shea (No. 1)”); Poole v Rod Baker & Co [2011] FMCA 357; (2011) 207 IR 264 at [24]-[25] per O’Sullivan FM (“Poole”);
Saipem’s submissions concerning the character of the “dispute” referred to in s.368(3) of the FW Act were as follows:
a)the alleged dispute between Mr Bognar and Skilled Offshore arises from a contention that Skilled Offshore dismissed Mr Bognar for a prohibited reason;
b)the alleged dispute between Mr Bognar and Saipem arises from the following contentions:
i)Saipem dismissed Mr Bognar for a prohibited reason; and
ii)Saipem aided, abetted, counselled or procured Skilled Offshore's breaches of the FW Act: Statement of Claim at [29];
c)Saipem could not have dismissed Mr Bognar given that, at all material times, Mr Bognar was not an employee of Saipem;
d)accordingly, the alleged dismissal of Mr Bognar by Saipem is:
i)a new allegation of dismissal being a matter not referred to in the Certificate; and
ii)misconceived;
e)further, the alleged accessorial liability of Saipem is a dispute which is distinguishable from the dispute between Mr Bognar and Skilled Offshore;
f)the terms of s.550 of the FW Act dealing with accessorial liability provide for specific elements, applicable to distinguishable parties (being separate and distinct personal or corporate entities);
g)logically, accessorial liability under s.550 of the FW Act has a distinct factual matrix: Vine v Diepeveen & Ors [2015] FCCA 1807 at [7]) per Judge Jarrett (“Vine”);
h)these specific elements, distinguishable parties and distinct factual matrix are significantly different to the elements, parties and factual matrix related to primary liability: Devonshire v Magellan Powertronics Pty Ltd & Ors [2013] FMCA 207; (2013) 231 IR 198; (2013) 275 FLR 273; (2013) 65 AILR 101-892 at [84] per Lucev FM (“Devonshire”);
i)this is consistent with the Court's general approach where accessorial liability is considered as a separate issue and can be determined independently of primary liability: Devonshire at [85] per Lucev FM; Vine at [7] per Judge Jarrett;
j)an assessment of the prospects of success in an accessorial liability dispute, which the Commission is required to undertake in issuing a Section 368 Certificate, are likely to be significantly different to the assessment of any primary liability dispute given the different elements, parties and facts involved in a primary liability dispute;
k)these differences are potentially significant for a number of reasons including the cost consequences which can flow as a result of a Section 368 Certificate and any assessment of prospects of success; and
l)that the alleged accessorial liability of Saipem was not and cannot form part of the same alleged dispute referred to in the Section 368 Certificate because:
i)the alleged accessorial liability of Saipem is significantly different in legal and factual character to the primary liability dispute which was before the FWC at Conciliation; and
ii)neither the allegation of accessorial liability nor Saipem against whom the allegation was subsequently made were referred to in the Section 365 Certificate.
Saipem’s submissions in relation to the phrase “in relation to the dispute” referred to in s.370 of the FW Act are as follows:
a)the words “in relation to the dispute” in s.370 of the FW Act cannot encompass:
i)the alleged dismissal of Mr Bognar by Saipem; or
ii)the alleged accessorial liability of Saipem;
b)the words “in relation to the dispute” do import a level of flexibility in relation to the substantive matters of a dispute that the Court has jurisdiction to hear and determine: Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355; (1998) 72 ALJR 841; (1998) 153 ALR 490 at [87] per McHugh, Gummow, Kirby and Hayne JJ; Shea (No. 1) at [61] per Dodds-Streeton J;
c)the words “in relation to the dispute” must however be read in the context of the FW Act and be subject to limitation, otherwise the words could import “every conceivable connexion”, leading to a manifestly unreasonable and absurd result: O'Grady v The Northern Queensland Company Limited (1990) 169 CLR 356; (1990) 64 ALJR 283; (1990) 92 ALR 213; CLR at 374 per Toohey and Gaudron JJ; Acts Interpretation Act 1901 (Cth) (“AI Act”), s.15AA;
d)consideration of the context of s.370 of the FW Act provides two limitations to the flexibility of the words “in relation to the dispute” which suggest, in the present case, that s.370 of the FW Act cannot encompass the alleged dismissal of Mr Bognar by Saipem or the alleged accessorial liability of Saipem;
e)first, a reading of the context of s.370 of the FW Act by reference to s.368(3) of the FW Act suggests that the words “in relation to the dispute” in s.370 of the FW Act are limited to the relevant issues between the named parties to the FWC proceedings and identified at the time that a Section 368 Certificate issues;
f)the FWC may, as part of issuing a Section 368 Certificate, advise the “parties” that a general protections claim in relation to the dispute would have no reasonable prospects of success: FW Act, s.368(3)(b);
g)for the “parties” to the dispute to be notified of the prospects of success of any general protections claim, the “parties” to the dispute must be identified by the FWC at the time that the Section 368 Certificate is issued: Autterson v ABC Dental Alliance Pty Ltd T/A ABC Dental [2013] FWC 9330 at [30]-[33] per Lawrence DP where the FWC indicated it must deal with a dispute at conciliation in a manner which is not in the form of precise legal pleadings, but should properly “identify the parties” prior to issuing a Section 368 Certificate. This indicates that while there is flexibility in relation to the substantive aspects of the dispute, the identification of the parties must be undertaken carefully and with certainty prior to the issuance of the Section 368 Certificate;
h)it follows that the issues “in relation to the dispute” which the Court may hear and determine by virtue of s.370 of the FW Act are issues and substantive claims arising out of the dispute between the “parties” named in a Section 368 Certificate, which in this case constitutes the alleged dispute between Mr Bognar and Skilled Offshore;
i)second, the phrase “in relation to the dispute” must be interpreted in a manner that would best achieve the purpose or object of the FW Act and is to be preferred to any other interpretation: AI Act, s.15AA;
j)the objects of the FW Act in s.3 of the FW Act and Chapter 3, Part 3-1, Division 1 of the FW Act, as set out in s.336 of the FW Act, provide limited guidance as to the purpose and objects of the procedural steps set out in ss.368 and 370 of the FW Act: AI Act, s.15AA;
k)in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in an Act and the purpose or object underlying an Act: AI Act, s.15AB;
l)the Second Reading Speeches and the Explanatory Memorandum also provide limited guidance, with the exception of a statement by the Labor Member for Newcastle, in the Fair Work Bill 2008 (Cth) (“FW Bill”) second reading (“Second Reading”);
m)during the Second Reading it was stated that “conciliation, mediation and cooperation are the hallmarks of the Fair Work Bill.”: Hansard, House of Representatives, Wednesday, 3 December 2008, p 12432;
n)this is consistent with the proposition that conciliation is central to the purpose and object of the FW Act’s regime and should not be lightly overlooked or circumvented;
o)in the circumstances, it is certainly arguable that the inclusion of Saipem by Mr Bognar as a party to these poceedings constitutes a circumvention of the purpose and object of the FW Act’s regime;
p)the Second Reading statement is consistent with the views as to the purpose of ss.368 and 370 of the FW Act in Shea (No. 1) at [81] per Dodds-Streeton J:
The regime established in Subdivision A of Division 8 aims, where possible, to avoid litigation about allegedly contravening dismissals by mandating (as a prerequisite to litigation) a preliminary, less costly and relatively informal process in FWA to facilitate conciliation and non-curial resolution.
q)the views in Shea (No. 1) indicate that the process of allowing parties to participate in a conciliation and potentially resolve the dispute before the Court determines the dispute is central to the object and purpose of ss.368 and 370 of the FW Act;
r)in considering the purpose and object of ss.368 and 370 of the FW Act assistance can be derived by a comparison with the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”). The AHRC Act provides that a notice of termination, which is similar to a Section 368 Certificate, must be issued by the Australian Human Rights Commission (“AHRC”) before an application in relation to the complaint can be made to the Court: AHRC Act, s.46PO;
s)section 46PO of the AHRC Act provides that an affected person can make an application to the Court against the “respondents to the terminated complaint”;
t)the FW Act does not contain the same provision as s.46PO of the AHRC Act;
u)however, the purpose of s.370 of the FW Act and s.46PO of the AHRC Act are comparable to the extent that their purpose is to allow a statutory tribunal to act as a “filter”: Grigor-Scott vJones [2008] FCAFC 14; (2008) 168 FCR 450; (2008) 102 ALD 1 at [19] per Emmett, Lander and Tracey JJ (“Grigor-Scott”), for complaints between parties which cannot be effectively dealt with without intervention of the Court;
v)for the object and purpose of the “filter” to operate effectively in both contexts:
i)the relevant tribunal must be able to clearly identify and specify the parties to which this filter is to be applied: Grigor-Scott at [20] per Emmett, Lander and Tracey JJ;
ii)the Court must be able to clearly identify to whom the filter has been applied and be able to refuse to entertain a claim against a party which has not been through the filter; and
iii)issues relating to substantive matters must be distinguished from identifying and naming respondents.
w)the case law in relation to ss.368 and 370 of the FW Act indicates that the phrase “in relation to the dispute” can allow additional substantive claims to be added after a Section 368 Certificate has been issued but subject to the requirement that the substantive claim arises from the same “specified dismissal”: Shea (No. 1) at [61] per Dodds-Streeton J;
x)however, this case law generally relates to issues where new substantive matters are raised in relation to the conduct of parties that are already named on the Section 368 Certificate; and
y)accordingly, the phrase “in relation to the dispute” in s.370 of the FW Act, cannot and should not, extend to the alleged dismissal of Mr Bognar by Saipem or the alleged accessorial liability of Saipem given that such an outcome would:
i)enable Mr Bognar to “launch an application” in the Court against Saipem, relying on ss.340, 346 and 550 of the FW Act, thereby circumventing the relevant procedural requirements of the FW Act; and
ii)be inconsistent with the object and purpose of ss.368 and 370 of the FW Act.
Saipem’s submissions as to why it says Mr Bognar’s application against it has no reasonable prospects of success are as follows:
a)Mr Bognar's claim that Saipem dismissed Mr Bognar has no reasonable prospects of success because Mr Bognar was not employed by Saipem;
b)to the extent that any decision to dismiss occurred, Mr Bognar could not have been dismissed by Saipem;
c)in a general protections claim where the adverse action concerned is an alleged dismissal, the Court must consider the mind of the decision maker who had the authority to dismiss the employee: Board of Bendigo Regional Institute of Technical and Further Education v Barclay & Anor [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647; (2012) 64 AILR 101-722 at [127] per Gummow and Hayne JJ;
d)the FW Act does not contemplate a principal taking adverse action against an independent contractor's employee by the principal dismissing the employee: compare items 1 and 3 of s.342 of the FW Act. The relevant item for dismissal of Mr Bognar is item 1. None of adverse action in item 3 has been alleged by Mr Bognar;
e)Skilled Offshore was the decision-maker who had the authority to dismiss Mr Bognar;
f)Mr Bognar's claim that Mr Bognar was dismissed by Saipem is untenable, groundless and faulty: Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118; (2010) 84 ALJR 612; (2010) 269 ALR 233 at [58]-[60] per Hayne, Crennan, Kiefel and Bell JJ;
g)further:
i)there is no question of fact or degree in relation to whether Saipem dismissed Mr Bognar: Jackson v P/T Constructions WA Pty Ltd [2015] FCCA 1014 at [43] per Judge Lucev (“P/T Constructions”) and
ii)there can be no genuine dispute in relation to whether Saipem dismissed Mr Bognar: P/T Constructions at [94] per Judge Lucev, referring to Spalla v St George Motor Finance Ltd (No. 6) [2004] FCA 1699 at [69] per French J; and
h)accordingly, Mr Bognar's claim that Saipem dismissed Mr Bognar has no reasonable prospects of success and should be dismissed in accordance with r.13.10 of the FCC Rules.
Saipem’s submissions in relation to abuse of process were as follows:
a)in Rogers v The Queen (1994) 181 CLR 251; (1994) 74 A Crim R 462; (1994) 68 ALJR 688; (1994) 123 ALR 417; CLR at 256 per Mason CJ (“Rogers”) it was said that:
... there are two aspects to abuse of process: first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute.
b)it would be unfair and prejudicial to Saipem to deny it the opportunity to take part in the FWC conciliation process because:
i)Saipem should have an opportunity to canvass the issues raised against it with Mr Bognar in an informal setting and prior to having to be put to the expense of filing a detailed response as would be required in the Court setting; and
ii)Saipem has not had the advantage of the Section 368 Certificate assessment in relation to Mr Bognar's claims against it;
c)allowing Mr Bognar to start a proceeding against Saipem contrary to the statutory pre-requisites of s.370 of the FW Act would bring the administration of justice into disrepute in that:
i)it would create a perception that the FWC’s processes can be circumvented; and
ii)allow for an outcome before the Court where a potentially unlimited number of additional respondents could be added to a general protections claim after the claim had already taken on a particular legal character: Birch v Wesco Electrics (1966) Pty Ltd [2012] FMCA 5; (2012) 218 IR 67; (2012) 257 FLR 237 at [131] per Lucev FM (“Wesco Electrics”);
d)consequently, the claims against Saipem constitute an abuse of process and would arguably bring the administration of justice into disrepute if they were heard and determined in the circumstances induced by Mr Bognar; and
e)it follows that the claims should be dismissed in accordance with r.13.10 of the FCC Rules.
Mr Bognar’s submissions
Mr Bognar’s submissions were as follows:
a)the issue raised by Saipem is whether Mr Bognar was obliged to involve it in a conference in the FWC, and to obtain a Section 368 Certificate from the FWC naming it, before proceeding against Saipem as an accessory to the alleged contraventions of Skilled Offshore. The answer to that question is “No”;
b)a person who has been dismissed, and alleges that the circumstances of the dismissal involve a contravention of the general protections provisions of the FW Act, may apply to the FWC to deal with the matter: FW Act, s.365(a);
c)the application is to be made in accordance with r.45 of the Fair Work Commission Rules 2013 (Cth). The application is to be in accordance with Form F8. Form F8 requires Mr Bognar to provide: certain information about himself, and his legal representative (if any); the identity of the employer who terminated the employment; the date that the employment commenced and the date that the dismissal took effect; the reasons given for the dismissal; reasons for late filing of the application (if filed late); disclosure of the fact of any other application to the FWC or any other organisation in relation to the dismissal; a statement of the outcome sought by Mr Bognar; information about the actions of the employer which led to the making of the application; and a statement of the sections of the FW Act that are said to have been contravened by the employer and the facts which are said to give rise to the contravention;
d)no provision of the FW Act, or subsidiary legislation under the FW Act, or any part of Form F8, requires that Mr Bognar articulate, in his or her application, every material fact that might be pleaded in the Court, nor identify each (or any) additional person (other than the employer) who might have been involved in contravening conduct related to the dismissal;
e)upon the receipt of an application, the FWC must conduct a conference: FW Act, s.368(1). During the conduct of, or in relation to, such a conference, the FWC may inform itself in relation to the dispute in any manner as it considers appropriate: FW Act, s.590(1). The FWC may, among other things: require any person to appear at the conference: FW Act, ss.590(2)(a) and 592(1); require the production of documents, other records or other information: FW Act, s.590(2)(c); and conduct inquiries: FW Act, s.590(2)(f). The FWC must be satisfied that all reasonable steps to resolve the dispute have been (or are likely to be) unsuccessful, before issuing a Section 368 Certificate;
f)the FWC is thus invested with considerable powers, and considerable flexibility, in dealing with the dispute. If the FWC concluded, at the suggestion of Mr Bognar or Skilled Offshore, or of its own motion, that requiring the participation or assistance of a third party would be a reasonable step to help resolve the dispute, then the FWC is armed with tools so that it may act on that conclusion. The FWC is not required to call in third parties who may have been involved in the alleged contravention, in all circumstances. Such a requirement would be a significant fetter upon the flexibility afforded to the FWC, and such a fetter would require statutory expression in clear terms;
g)it is for the FWC to determine, in the circumstances of any particular application, what steps are reasonably required in an attempt to resolve the dispute. It is conceivable that, in some matters, the participation or other assistance of a third party might be considered, by the FWC, to be not only reasonable, but necessary or crucial. The FWC might form that view because of information that a third party might provide, or because the third party might be a necessary participant and contributor to a commercial resolution. Equally, the FWC might form the view that, while a third party might have some relevant connection to the dispute, or relevant information or other contributions to make, the involvement of that third party would not, in all of the circumstances, assist in the final resolution of the dispute. The variety of circumstances facing the FWC are near limitless; and
h)the FW Act required that, before instituting the proceeding now before the Court, Mr Bognar obtain a Section 368 Certificate from the FWC; it required that, before issuing a Section 368 Certificate, the FWC satisfy itself that all reasonable steps had been taken to resolve the dispute. The FWC evidently did not consider, in this case, that the involvement of Saipem in the conference procedures was a necessary reasonable step to assist in resolving the dispute. The procedural preconditions to the making of the present application to the Court have been met. Saipem's objection should be dismissed.
Saipem’s Submissions in Reply
In Saipem’s submissions in reply in relation to the Form F8 it submitted that:
a)the Form F8 is a pro-forma, multipurpose form issued by the FWC;
b)there is scope for the Form F8 to be used to identify third parties to the claim. For instance, item 2.1 asks “What outcome are you seeking by lodging this application?” and this could include identification of a remedy from a third party under s.550 of the FW Act; and
c)Mr Bognar had other procedural options available in order to identify Saipem.
In Saipem’s submissions in reply in relation to the FWC’s role it submitted that:
a)the tenor of Mr Bognar’s submission suggests that the FWC alone is ultimately responsible for ensuring that all persons who are relevant to a dispute attend conciliation;
b)Mr Bognar's submissions make no reference to:
i)any provisions of the FW Act which expressly support its submissions on the role of the FWC; or
ii)any decisions of the FWC to support its view as to the role of the FWC;
c)Mr Bognar's submission regarding s.590 of the FW Act, which it uses as the basis for its assertions in relation of the role of the FWC, should be rejected;
d)the powers contained in s.590 of the FW Act, which provide power for the FWC to inform itself as it sees fit and to require a party to attend before the FWC:
i)are discretionary, meaning that even if the FWC forms the view that a third party is relevant to a dispute, it is not obliged to require the third party's attendance at conciliation; and
ii)do not relieve Mr Bognar from Mr Bognar's fundamental obligation to prosecute his own case. The obligation on an applicant to actively prosecute their applications under the FW Act can be identified in cases relating to general protections applications: Leeuw v Osmond Meerwald TIA Oz's Landscaping Paving and Construction Pty Ltd [2012] FWA 132. Arguably, the obligation requires that an applicant take proper steps to ensure that the parties which are relevant to the dispute and the resolution of the dispute are properly added to a general protections application;
e)if accepted, Mr Bognar's submissions concerning the role of the FWC would have the curious effect that Mr Bognar's obligation to prosecute his own case would effectively cease upon lodgement of the Form F8;
f)Mr Bognar's submissions on the role of the FWC, if accepted, would promote an outcome whereby Mr Bognar could simply rely on the FWC to prosecute the application on behalf of Mr Bognar. Such an outcome is neither desirable nor intended on a proper reading of the relevant provisions of the FW Act;
g)in the final analysis, it is clear that Mr Bognar (for whatever reasons) made the decision to assume the risk of not naming Saipem as a party to the FWC proceedings; and
h)Mr Bognar's submissions in respect of the role of the FWC should be rejected.
Saipem’s submissions in relation to the FWC’s power to seek to require parties to attend conciliation were as follows:
a)Mr Bognar's contention that there is no fetter on the exercise of the FWC’s power to seek to require parties to attend conciliation, is inconsistent with the following cornerstone principles with which the Commission must follow:
i)the requirement to act in a judicial like manner; and
ii)the requirement to ensure procedural fairness,
Allen & Ors v Fluor Construction Services Pty Ltd [2014] FWCFB 174; (2014) 240 IR 254;
b)where a party's rights or interests may be affected by a conciliation or allegations are made against the party prior to conciliation the authorities: Wilson Curry Pty Ltd v McMahon [2013] FWCFB 9968 (which refers to McMahon v Wilson Curry Pty Ltd [2013] FCCA 1743), suggest that the FWC should add the third party as a further respondent by using one of the following non-exhaustive list of powers:
i)after an application is made by an applicant to the FWC: Mowle v Rio Tinto Limited T/A Pilbara Iron [2015] FWC 1311; Guhl v Dredging International Australia Pty Ltd T/A Dredging International Australia; Bechtel (Western Australia) Pty Ltd [2014] FWC 7057; or
ii)at its own initiative: FW Act, s.589;
c)the authorities place significance on the FWC acting in a judicial like manner when exercising its powers and with a view to ensuring procedural fairness when exercising its powers: National Union of Workers v Caterpillar of Australia Pty Limited [2014] FWC 4133 (“Caterpillar of Australia”);
d)this may include the opportunity for a party, who is to be subject to a power, to be heard in relation to the proposed exercise of the power: Caterpillar of Australia;
e)the requirement to act in a judicial like manner and with procedural fairness is essential in the context of a conciliation where a Section 368 Certificate may be issued given that the issuance of a certificate or a decision not to issue a certificate has the potential to significantly impact on the legal interests of the parties: Koppen v Commissioner for Community Relations (1986) 11 FCR 360; (1986) 67 ALR 215; FCR at 364-374 per Spender J (“Koppen”). In Koppen, which pertained to the Racial Discrimination Act 1975 (Cth), the Federal Court held that a conciliator in a conference which could result in a certificate comparable in effect to a Section 368 Certificate was bound by the principles of natural justice and procedural fairness.
Saipem’s final contentions were that Mr Bognar's submissions:
a)are not supported by the language of s.590 of the FW Act or supported by any legal authorities; and
b)would give rise to an unsustainable procedural burden on the FWC by requiring it to prosecute an applicant's case at the conciliation stage.
Supplementary submissions sought
Introduction
The Court invited the parties to deliver supplementary submissions, in light of this Court’s judgment in Zehnder v Sell Lease Property Pty Ltd (T/A Sell Lease Property) [2015] FCCA 3393 (“Zehnder”). Zehnder was delivered after submissions had made upon Saipem's application in a case.
Saipem’s supplementary submissions
Saipem submitted that:
a)it agrees with the reasoning in Zehnder insofar as:
i)a Section 368 Certificate is a certificate about s.365 of the FW Act; and
ii)the Court in Zehnder states the following qualifier to the assessment of jurisdiction in relation to accessorial liability:
there is no jurisdictional impediment to the applicant joining Messrs Quinn and MacEwan in the proceedings, as asserted by the respondent, as long as the allegations of accessorial liability made against them stay within the scope of the dispute between Mr Bognar and the respondent which was dealt with by the Fair Work Commission.
b)the FW Act does not expressly prohibit issues of accessorial liability being raised before the FWC at a conference held as a consequence of an application made under s.365 of the FW Act;
c)the issue of accessorial liability may fall within the “scope of the dispute” if it is raised before the FWC at a conference regarding an application made under s.365 of the FW Act;
d)the “scope of the dispute” to which a Section 368 Certificate applies may include issues of accessorial liability; and
e)accessorial liability in relation to Saipem is not within the “scope of the dispute” in the current application as Saipem was not in attendance at the conference before the FWC on 28 May 2015, and is not referred to in Mr Bognar's Form F8.
Bognar’s supplementary submissions
Mr Bognar submitted that:
a)the question for decision in the present application is whether an applicant may proceed in this Court against a person as an involved accessory to a primary contravention, under s 550 of the FW Act, notwithstanding that that person was not identified in a Section 368 Certificate;
b)in Zehnder, the Court's answer to that question was “Yes”. For the reasons given in Zehnder (and for the reasons articulated in Mr Bognar's previous submissions), the Court's answer in the present application ought be the same, and the objection of Saipem ought be dismissed;
c)the reasoning in Zehnder at [8]-[9] per Judge Cameron may be summarised in this way. The FW Act prohibits the commencement of a proceeding under s.370 of the FW Act unless Mr Bognar had first obtained a Section 368 Certificate. The certificate must be a certificate “in relation to the dispute”. A “dispute”, for these purposes, is a dispute under Div.8, Pt.3-1 of Chapter 3 of the FW Act. There is no provision, in that Division, Part or Chapter, for involving a person in the FWC procedures by reason of the accessorial liability provision in s.550 of the FW Act. Section 550 of the FW Act authorises the involvement of such a person in proceedings in the Court. If Mr Bognar properly obtained the Section 368 Certificate in connection with a “dispute” under Div.8, Pt.3-1 of Chapter 3 of the FW Act, then Mr Bognar has satisfied the jurisdictional precondition to the commencement of a proceeding in this Court;
d)the Court had previously considered the question, on two occasions. In one of those judgments, the Court reached the same conclusion as that of Zehnder, and for essentially the same reasons. In the other, the Court reached the opposite conclusion;
e)the judgment that is consistent with Zehnder is Allan v Condamine Catchment Natural Resource Management Corporation Ltd & Ors [2015] FCCA 2632; (2015) 302 FLR 121 (“Condamine Catchment”). In Condamine Catchment the Court dismissed an application to strike out those parts of the claim which sought to fix particular respondents with accessorial liability, notwithstanding that those particular respondents had not been identified in a Section 368 Certificate. The reasoning in Condamine Catchment at [7]-[10] per Judge Jarrett anticipated, and is relevantly the same as, the reasoning in Zehnder;
f)the Court reached the opposite conclusion in Dain v Mark Group Australia Pty Limited [2012] FMCA 518; (2012) 224 IR 94 (“Dain”). In Dain, the Court granted an application to strike out that part of the proceeding by which an applicant sought to proceed against respondents, as accessories to the alleged wrongdoing of the principal respondent, in circumstances where those former respondents had not been identified in a certificate issued by the then Fair Work Australia (“FWA”);
g)in Dain, the Federal Magistrates Court identified five cases previously decided by that Court in which “the same principles” were said to have arisen for consideration, and said that those judgments compelled the conclusion that the Federal Magistrates Court was without jurisdiction to entertain a claim against an accessory under s.550 of the FW Act, if that accessory had not been identified in the certificate then equivalent to a Section 368 Certificate;
h)the cases identified in Dain were not on point. None of those cases addressed the situation which arose for decision in Dain, Allan and Zehnder, and which arises in the present matter;
i)the five judgments identified in Dain at [4], [5] and [7] per Raphael FM were: Rentuza; Wills; Poole; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing And Allied Services Unionv Active Tree Services Pty Ltd [2011] FMCA 535; (2011) 211 IR 250 (“Active Tree Services”); and Pitrau v Barrick Mining Services Pty Ltd [2012] FMCA 186; (2012) 219 IR 208; (2012) 259 FLR 447; (2012) 64 AILR 101-563 (“Pitrau”);
j)none of the above judgments involved consideration of whether an applicant may proceed in the Court against a person alleged to have been an accessory under s.550 of the FW Act, notwithstanding that that alleged accessory had not been identified in a certificate issued by FWA or the FWC. The judgments each concerned other issues:
i)in Rentuza, the applicant proceeded in the Federal Magistrates Court against the former employer, when no certificate of any kind had been obtained. The applicant conceded that the Federal Magistrates Court was without jurisdiction, and the application was dismissed;
ii)in Wills, the applicant had obtained a certificate before approaching the Federal Magistrates Court, but the certificate identified a different “employer” to the person who was proceeded against as the former employer in the Federal Magistrates Court, and the certificate was not obtained in relation to the claims which the applicant sought to vindicate in the Federal Magistrates Court;
iii)in Poole, the applicant obtained a certificate identifying a particular company, and then proceeded in the Federal Magistrates Court claiming remedies against that company. Before the Federal Magistrates Court, the applicant ultimately conceded that that company had not been her employer, and accepted that the application ought to be dismissed;
iv)in Active Tree Services, a union had brought an application on behalf of a number of its members, against those members' former employer. The union had obtained a certificate before proceedings were commenced in the Federal Magistrates Court. The controversy was whether the claim in the Federal Magistrates Court could agitate particular complaints about facts or matters that had not been identified in the application that had been lodged with FWA, and upon which the certificate had issued. The Federal Magistrates Court accepted the employer's contentions, and concluded that the applicant union ought return to FWA and seek a further certificate in relation to the particular subject matters later raised in the Federal Magistrates Court. The reasoning in Active Tree Services has since met with disapproval in Shea (No. 1); and
v)in Pitrau, the applicant had obtained a certificate from FWA in relation to an unlawful termination application, and then sought to advance a general protections claim in the Federal Magistrates Court. The Federal Magistrates Court concluded that the applicant could only proceed against the respondent in a general protections claim if she had first obtained a certificate upon a general protections application; and
k)Zehnder and Condamine Catchment are authorities for the proposition that an applicant may obtain a Section 368 Certificate in connection with a dispute involving a former employer, and then proceed in the Court against the former employer and also against a person said to be involved in the former employer's alleged contravention, by reason of s.550 of the FW Act. To the extent that Dain suggests otherwise, Dain is plainly wrong. The Court should follow Zehnder and Condamine Catchment as Dain is plainly wrong.
Consideration
Section 365 of the FW Act says that a person dismissed, who alleges dismissal in contravention of Part 3-1 of the FW Act may apply to the FWC to deal with the dispute. Section 365 of the FW Act simply deals with who can make an application to the FWC. It says nothing about who may make an application to the Court in respect of a general protections court application. It is also limited to a dispute concerning a dismissal in contravention of Part 3-1 of the FW Act. A dismissal in contravention of Part 3-1 of the FW Act is, of itself, restricted to the employer and the employee concerned.
That s.365 of the FW Act is so restricted is confirmed by s.337 of the FW Act which provides that Part 3-1 of the FW Act “applies only to the extent provided by this Division”. That is, Division 2 of Part 3-1 of the FW Act. A general protections court application is made under Part 4-1 of the FW Act.
Section 365 of the FW Act does not therefore assist with the question of who may be a respondent to a general protections court application.
As with s.365 of the FW Act, s.368 of the FW Act simply prescribes how a dismissal dispute must be dealt with by the FWC. Section 368(3)(a) of the FW Act provides that it is mandatory for the FWC to issue a certificate to the effect that it is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful. Again, that says nothing about who may make a general protections court application before this Court.
Section 370 of the FW Act prohibits the making of a general protections court application by a person entitled to apply under s.365 of the FW Act unless the FWC has issued a certificate under s.368(3)(a) of the FW Act. Section 370 of the FW Act, like ss.365 and 368 of the FW Act, says nothing about who might eventually be parties to a general protections court application, but rather merely prevents a person entitled to apply under s.365 of the FW Act to the FWC to deal with a dismissal dispute from making a general protections court application without a Section 368 Certificate.
A general protections court application is one made under Part 4-1 of the FW Act and is an application for orders in relation to alleged contraventions of a civil remedy provision, relevantly, in this case ss.340 and 346 of the FW Act. Section 539 of the FW Act sets out what persons may apply for orders in respect of the specified civil remedy provisions, subject to the terms of ss.540 and 544 of the FW Act: FW Act, s.539(2). Item 11 of s.539(2) provides, relevantly that “a person affected by the contravention” may apply in respect of alleged contraventions of ss.340 and 346 of the FW Act (those being the sections Mr Bognar alleges contravention of). Section 540 of the FW Act is relevant because it imposes limitations on who may apply for orders, and s.540(1) of the FW Act provides that, for example, “an employee”: FW Act, s.540(1)(a), may apply for an order “in relation to a contravention or proposed contravention of a civil remedy provision” but “only if the person is affected by the contravention, or will be affected by the proposed contravention”. Likewise, an employer, an outworker or an outworker entity may apply for an order, as may an employee organisation or a registered employee organisation, an employer organisation or an industrial association: FW Act, s.540(1)(b), (c) and (d), (2), (4), (5) and (6). In each instance the relevant person must be one who is “affected by the contravention, or who will be affected by the proposed contravention”. Section 544 of the FW Act imposes a time limitation, and other than being a general limitation provision, is not relevant to the present discussion.
Section 540 of the FW Act is critical because it demonstrates that the Parliament has turned its attention to limiting who may apply for an order, but that it has not imposed any limitation upon whom an order may be sought against, save to the extent provided for by s.550 of the FW Act.
The failure to impose limitations upon whom an order may be sought against for the purposes of s.540 of the FW Act, read together with s.539 of the FW Act, may be contrasted with s.541 of the FW Act in relation to applications for orders in relation to safety net contractual entitlements, under which an inspector (that is, a Fair Work Inspector: FW Act, s.12) may apply to a court for an order “in relation to an employer’s contravention or proposed contravention of a provision or term” of various instruments referred to in s.541 of the FW Act, and may also apply for an order on behalf of an employee in relation to “the employer’s contravention, or proposed contravention, of a safety net contractual entitlement of the employee”: FW Act, s.541. Likewise, s.543 of the FW Act provides for an application for an order to be made to the Federal Court or to this Court by a “national system employer or a national system employee” in relation to statutory entitlements derived from contracts, so as “to enforce an entitlement of the employer or employee” arising under a safety net contractual entitlement: FW Act, s.543.
The examination of the above provisions of the FW Act demonstrates that the Parliament has given careful consideration as to who may bring an application for an order in respect of an alleged contravention of a civil remedy provision. Further, that careful approach has been extended to other entitlements such as safety net contractual entitlements, and a consideration of who may bring those claims. The Parliament has in some cases limited the category of persons who may make application for such orders. Significantly, it has not, however, limited the persons who might be made liable as an ancillary under s.550 of the FW Act, save in the terms of s.550 of the FW Act itself, as explained below.
Section 550 of the FW Act allows persons “involved in a contravention of a civil remedy provision” to be “taken to have contravened that provision”: FW Act, s.550(1), with how a person may be so “involved” being defined by s.550(2) of the FW Act. Section 550 of the FW Act allows an application for orders to be made against a person other than one involved in a dispute for the purposes of Part 3-1 of the FW Act. Section 550 of the FW Act appears in Part 4-1 dealing with civil remedies, which are dealt with by the Courts as part of the traditional bifurcation of the industrial relations system in Australia whereby, for Constitutional reasons, arbitral disputes are dealt with by a non-judicial tribunal, such as the FWC, which conciliates and arbitrates to resolve disputes or create new rights, on the one hand, and on the other hand, the courts, as part of the judicial system, deal with and determine whether or not there has been a past breach of a legal right or obligation: Attorney-General of the Commonwealth of Australia v The Queen & Ors (1957) 95 CLR 529; [1957] ALR 489; [1957] AC 288; [1957] 2 WLR 607; [1957] 2 All ER 45; (1957) 101 SJ 300; (1957) 30 ALJ 638, as a consequence of which the Parliament created the Commonwealth Industrial Court to deal with the judicial aspects of industrial relations matters, whilst the arbitral and conciliation aspects of industrial relations matters were dealt with by the Commonwealth Conciliation and Arbitration Commission. That bifurcation of judicial and arbitral powers has been maintained ever since: for a brief outline of the history see Welsh v Allblend Holdings Pty Ltd (No. 2) [2010] FMCA 377; (2010) 195 IR 216; (2010) 239 FLR 234 at [10]-[18] per Lucev FM, and see also Wesco Electrics at [128] per Lucev FM.
Section 550 of the FW Act allows persons bringing an action for contravention of a civil remedy provision to join persons, either at the commencement of, or later in, proceedings before a court. It allows for the person bringing the action to allege accessorial liability in respect of persons whose involvement may not have been apparent at an earlier time. And whereas the FWC conciliation process is designed to achieve a speedy resolution of an industrial dispute, the accessorial liability provisions of s.550 allow persons who have aided, abetted, counselled or procured the contravention, or made threats or promises to induce the contravention, or who has conspired with others to effect the contravention, and whose involvement may not have been immediately apparent at the time that a person is required to make an application to the FWC to deal with the dispute, or at the time that the FWC is required to issue the Section 368 Certificate. It is entirely conceivable that such persons might not become apparent to an applicant until such time as witness statements are filed, or discovery ordered in certain cases. In the modern employment contractual environment the involvement of others, such as principal or head contractor or a labour hire contractor, whose actions may have had a significant influence upon the employer’s decision-making process, may not be known at the stage of seeking to resolve the industrial dispute before the FWC, but may come to light later as a result of the more exacting procedures adopted by courts in the course of a determination as to whether or not existing legal rights or obligations have been breached. In short, s.550 of the FW Act allows persons other than the employer involved in the contravention to be held accountable for their actions.
A further reason for allowing persons involved under s.550 of the FW Act to be joined as parties to an application for an order in respect of a civil penalty contravention is that where a corporate respondent becomes insolvent, and is unable to pay an applicant, or the application is stayed by reason of the insolvency: Corporations Act 2001 (Cth), s.471B, the provisions of s.550 of the FW Act allow an applicant to proceed against, and obtain relief from others involved in a contravention.
In terms of the jurisdictional pre-requisite to making an application for an order in respect of a contravention of a civil remedy provision there can be no doubt that a Section 368 Certificate is a jurisdictional pre-requisite. That is the point of cases such as Rentuza and Wills. Rentuza is however distinguishable from the present circumstances because the employee did not have a certificate at all. In Wills the employee had a certificate, but not in respect of the person against whom the application for orders for contravention of a civil remedy provision were brought before the Federal Magistrates Court. Thus, in both Rentuza and Wills, there was no relevant certificate to found jurisdiction.
In Devonshire the Federal Magistrates Court was asked to make a declaration as to whether the second and third respondents, being the director and company secretary, and the general manager, respectively of the respondent employer, should be removed as respondents on the basis that they were not persons referred to in ss.342 and 352 of the FW Act (both being general protections provisions like ss.340 and 346 of the FW Act in this case). The two persons concerned alleged that they had been improperly or unnecessarily joined as a party to the application: Devonshire at [78]-[79] per Lucev FM.
The Federal Magistrates Court dealt, at length and reasonably comprehensively with the accessorial liability provisions of s.550 of the FW Act in Devonshire at [81]-[86] per Lucev FM as follows:
81. Section 550 of the FW Act provides for accessorial liability for a breach of civil remedy provisions. Sections 340 and 352 of the FW Act are civil remedy provisions. Section 550 of the FW Act provides that involvement in a contravention of the FW Act shall be treated in the same way as an actual contravention.
82. The relevant principle in federal civil litigation in relation to legislative provisions such as s.550 of the FW Act is derived from the High Court’s judgment in Yorke & Anor v Lucas (1985) 158 CLR 661 (“Yorke”), and the numerous cases which have followed that judgment, which indicate that to be liable a putative accessory must intentionally participate in a contravention, and that to form the requisite intent the putative accessory must have knowledge of the essential matters going to make up the contravention, whether or not the putative accessory knows that those matters amount to a contravention. Necessary intent will be absent if the putative accessory does not know or believe that the assistance or encouragement given is something which goes to make up the facts which constitute the contravention. The principle as it applies in federal civil litigation has its origins in the criminal law: Yorke at 676 per Brennan J; Giorgianni v The Queen (1985) 156 CLR 473 at 506 per Wilson, Deane and Dawson JJ, and one of its early federal legislative manifestations is in s.75B of the Trade Practices Act 1974 (Cth). The principles concerning accessorial liability under federal workplace relations legislation are further expounded in Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299 at 308 per Tamberlin, Gyles and Gilmour JJ; [2007] FCAFC 87 at para.26 per Tamberlin, Gyles and Gilmour JJ, where the Full Court of the Federal Court observed that:
Regardless of the precise words of the accessorial provision, such liability depends upon the accessory associating himself or herself with the contravening conduct – the accessory should be linked in purpose with the perpetrators (per Gibbs CJ in Giorgianni v The Queen (1985) 156 CLR 473 at 479-480; see also Mason J at 493 and Wilson, Deane and Dawson JJ at 500). The words “party to, or concerned in” reflect that concept. The accessory must be implicated or involved in the contravention (Ashburyy v Reid [1961] WAR 49 at 51; R v Tannous (1987) 10 NSWLR 303 per Lee J at 307E- 308D (agreed with by Street CJ at 304 and Finlay J at 310)) or, as put by Kenny J in Emwest Products Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2002) 117 FCR 588; 112 IR 388 at [34], must participate in, or assent to, the contravention.
83. Accessorial liability provisions such as those in workplace relations legislation are commonplace in Commonwealth legislation: see, for example, Competition and Consumer Act 2010 (Cth), s.151BW (person involved in a contravention of the competition rule, etc.); Paid Parental Leave Act 2010 (Cth), s.145 (involvement in contravention treated in same way as actual contravention); Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), s.694.55 (involvement in contraventions); Corporations Act 2001 (Cth), s.79 (involvement in contraventions), to name but a few that are in identical, or practically identical, terms to s.550 of the FW Act.
84. Provisions in relation to accessorial liability are designed to ensure that persons involved in contravening conduct, often directors or very senior employees of corporations, are held liable for their conduct insofar as it resulted in a contravention of the relevant legislation. Further, they also ensure that liability is able to be imposed on persons involved in the contravening conduct in circumstances where a company has, for example, become insolvent or been deregistered, and no penalty would otherwise be recoverable.
85. Under a provision which provides for accessorial liability for breach of civil remedy provisions action may be taken against accessories without taking action against the principal: Australian Competition and Consumer Commission v Black on White Pty Ltd & Ors (2001) 110 FCR 1 at 14 per Spender J; [2001] FCA 187 at para.51 per Spender J. An action may continue against an accessory when discontinued against a principal: Torpia v Empire Printing (Australia) Pty Ltd (2009) 188 IR 306 at 319 per Barnes FM; [2009] FMCA 853 at para.65 per Barnes FM. An accessory may also be liable where a company has been deregistered: Fair Work Ombudsman v Proplas Industries Pty Ltd & Anor and Fair Work Ombudsman v Blacklight Investments Pty Ltd & Anor [2011] FMCA 506 at paras.21-26 per Lucev FM. The position is different in respect of this Court’s small claims proceedings where, because they do not concern pecuniary penalty orders and are not civil penalty proceedings, orders can only be made against an employer: Beer v Limb & Anor [2012] FMCA 494 at paras.24-25 per O’Sullivan FM. This matter is not a small claims matter.
86. Against the above background it is extraordinary that a submission could be made, as it has been made on behalf of the second and third respondents, that that they are not liable because they are not a “person” for the purposes of s.340 of the FW Act, and not the “employer” for the purposes of s.352 of the FW Act. That submission misses the point, and completely ignores the terms of s.550 of the FW Act, which seek to impose liability on a person found to be an accessory separate to the “person” or “employer” who is alleged to have actually contravened the relevant legislative provisions, here ss.340 and 352 of the FW Act. The respondents’ submission is without any merit whatsoever.
As is apparent from the above paragraphs of Devonshire there is no reason to read s.550 of the FW Act down, or to read it narrowly. The reference to “directors or very senior employees of corporations” in Devonshire at [84] per Lucev FM is by way of example only, and not intended to indicate a limitation on the scope of persons who may be held to be liable as ancillaries under s.550 of the FW Act.
Saipem is correct to assert that accessorial liability under s.550 of the FW Act has specific elements, distinguishable parties and may have a distinct factual matrix, and may need to be determined independent of primary liability: Devonshire at [85] per Lucev FM; Vine at [7] per Judge Jarrett. That does not however operate to limit the Court’s jurisdiction to the specific parties the subject of the Section 368 Certificate. Rather, the Section 368 Certificate is a pre-requisite to the jurisdiction of this Court being invoked, but once invoked that jurisdiction includes the capacity for other parties to be added to the application for orders for contravention of a civil remedy provision under s.550 of the FW Act.
The scope of s.550 of the FW Act as explained above renders otiose Saipem’s argument that the words “in relation to the dispute” in s.370 of the FW Act cannot encompass the alleged accessorial liability of Saipem. The words “in relation to the dispute” in s.370 of the FW Act relate to the arbitral dispute before the FWC, and not the judicial controversy which this Court is required to quell, and neither s.370 of the FW Act, nor any particular words in it, justify the reading down of s.550 of the FW Act.
Saipem’s attempt to justify its argument by reference to a dozen words in the Second Reading Speech of the Fair Work Bill 2008 (Cth) (“Fair Work Bill”) highlights the dangers of reliance upon extraneous material in interpreting legislation. The reliance on a dozen words in the Second Reading Speech as an aid to the proper construction of the objects of the FW Act must be open to doubt in the context of Parliamentary debates on the Fair Work Bill which in the House of Representatives and the Senate went on for 8 days and are covered in 262 pages of the Senate and House of Representatives Hansard reports. Thus, whilst “conciliation, mediation and cooperation” might be “the hallmarks of the Fair Work Bill” as it was presented to the Parliament, the objects of the FW Act as legislated include the “providing [of] effective compliance mechanisms”: FW Act, s.3(e). Section 550 of the FW Act is part of the provision of “effective compliance mechanisms” under the FW Act, for reasons set out above. The Federal Court recognised this in Shea (No. 1) at [81] per Dodds-Streeton J when it observed that:
The regime established in Subdivision A of Division 8 aims, where possible, to avoid litigation about allegedly contravening dismissals by mandating (as a pre-requisite to litigation) a preliminary, less costly and relatively informal process in FWA [FWC] to facilitate conciliation and non-curial resolution.
Although Shea (No. 1) does not specifically deal with the issue of accessorial liability in relation to the argument now advanced by Saipem on this application, the above passage from Shea (No. 1), which was relied upon by Saipem, makes it plain that the processes under what is Part 3-1 of the FW Act are focussed upon pre-litigation non-curial dispute resolution. By contrast, Part 4-1 of the FW Act deals with the curial resolution of litigation. There can be no doubt that the purpose of ss.368 and 370 of the FW Act is the resolution of disputes and the prevention of litigation, but those objects do not impact upon or limit the provisions of s.550 of the FW Act if a relevant matter is not resolved before the FWC.
Saipem suggests that assistance might be garnered by reference to provisions in the AHRC Act providing for applications to be made to this Court following the termination of a complaint before the AHRC. The difficulty with that argument is that the express provisions of s.46PO of the AHRC Act provide that an “affected person in relation to the complaint” can make an application to this Court. That is an express provision which limits who may make a complaint to this Court. That limitation is not reproduced or reflected in the terms of the FW Act governing the making of applications to this Court. Had the Parliament wished to it would have been very simple for it to do so by adopting the same or similar words to those in s.46PO of the AHRC Act. That the Parliament did not do so is indicative of it not intending to impose a restriction in the same terms as those applying under the AHRC Act.
The fact that the FWC is required to act in a judicial-like manner and to afford procedural fairness to parties who come before it in conciliation does not alter the fact that the FWC is engaged in dispute settlement and not judicial determination: and nothing in this argument converts dispute settlement into judicial determination, nor does it have anything to say with respect to s.550 of the FW Act.
In Zehnder this Court dealt with an application to join senior executives of the respondent employer on the basis that they were accessorially liable. In Zehnder at [8]-[9] per Judge Cameron the following was said:
8. A matter involving potential accessorial liability is not one which can come before the Fair Work Commission for consideration under s.365 of the FW Act and so cannot be the subject of a s.368 certificate. Section 368 and its related provisions are found in div.8, pt.3-1 of ch.3 of the FW Act. That division is concerned with compliance with the general protection provisions of the FW Act, relevantly the provisions prohibiting adverse action in the form of dismissal in contravention of a general protection. Such adverse action is referred to in s.342 of the FW Act and relevantly concerns actions taken by employers or prospective employers against employees or prospective employees. There is no right under those provisions to bring an alleged accessory before the Fair Work Commission to be dealt with under s.365 of the FW Act and so no ability to obtain a s.368 certificate exists in relation to alleged accessories. Consistently with that fact the accessorial liability provision, s.550, is found in ch.4 of the FW Act which is concerned with court-based compliance and enforcement proceedings.
9. Because Messrs Quinn and MacEwan could not have been brought before the Fair Work Commission pursuant to s.365 and accessorial liability claims exist only in the context of court proceedings, there is no jurisdictional impediment to the applicant joining Messrs Quinn and MacEwan in the proceedings, as asserted by the respondent, as long as the allegations of accessorial liability made against them stay within the scope of the dispute between the applicant and the respondent which was dealt with by the Fair Work Commission. There will be an order accordingly and the timetable will be amended.
In Zehnder it was held that the judgment of this Court in Dain was “plainly wrong”: Zehnder at [7] per Judge Cameron.
In this Court’s view the decision of the Federal Magistrates Court in Dain is clearly wrong. The authorities relied upon included Rentuza and Wills which have been referred to above, neither of which had anything to do with the issue of accessorial liability. Likewise in Poole the issue of accessorial liability did not arise because the respondent against whom the applicant proceeded in the Federal Magistrates Court was not the employer named on the relevant certificate: Poole at [24] per O’Sullivan FM. The Court determined that without a proper certificate the Court did not have jurisdiction to deal with a general protections court application, citing Rentuza and Wills: Poole at [25] per O’Sullivan FM. The judgment in Poole does not address s.550 of the FW Act in any way. Poole is therefore an application of the basic principles outlined in Rentuza and Wills that a proper certificate is necessary to found jurisdiction, and in any event is distinguishable on the basis that it did not address the issue of accessorial liability.
Pitrau is yet again an example of the application of the same type of principle as in Rentuza, Wills and Poole. In Pitrau there was a certificate (as there was in Poole) but it was in respect of a different kind of application to that which the applicant sought to bring before the Court, and the Court held that the application must be dismissed as it was, in fact, statute barred. In so doing, the Federal Magistrates Court concluded that:
a) the application which was made to FWA under s.773 of the FW Act, and the application under s.779 of the FW Act to this Court, were statute barred by reason of s.723 of the FW Act, and this Court is therefore without jurisdiction to determine the application to this Court; and
b) even if the application was not statute barred, and the application were capable of being amended as sought by Ms Pitrau, the Court is without jurisdiction because there is no Section 369 Certificate, and:
i) only FWA can issue a Section 369 Certificate;
ii) a Section 777 Certificate cannot be amended by this Court to make it a Section 369 Certificate; and
iii) a Section 777 Certificate will not suffice as it is in relation to a different application.
Pitrau at [63] per Lucev FM.
Again, nothing in Pitrau touched upon the issue of accessorial liability under s.550 of the FW Act.
In Active Tree Services the issue was whether the application brought before the Federal Magistrates Court involved the same dispute as that which was before FWA. The Federal Magistrates Court concluded that the applicant ought to return to FWA and seek a certificate in relation to particular subject matters that it had subsequently raised for the purposes of the application to the Federal Magistrates Court: Active Tree Services at [36] per Coker FM.
Active Tree Services was discussed in Shea (No. 1), and in that case the Federal Court came to a different conclusion, observing: Shea (No. 1) at [70] per Dodds-Streeton J that:
70 If, however, “the dispute” in s 371(1) is limited to the applicant’s substantial claims in the FWA application, in my opinion, a general protections court application made “in relation to” that dispute could validly include new, additional or different claims from those in the FWA application, provided that the essential basis of the dispute in the FWA application remained.
and going on at [77] per Dodds-Streeton J to observe that:
77 In my opinion, the context of Subdivision A does not support the limitation of the dispute in s 371(1) to that contained in the FWA application. Moreover, the phrase “in relation to” indicates, in context, that there is no requirement for a strict nexus between the dispute as contained in the FWA application and the claims in the court application.
The Federal Court in Shea (No. 1) then went on to observe at [85]-[95] per Dodds-Streeton J as follows:
85 The respondent’s construction would avert a significant disconformity between the elements and details of the applicant’s case in the FWA application and a subsequent court proceeding. On one view, such disconformity might circumvent the legislative aim that there be an opportunity to resolve the dispute without resort to litigation. The degree of any divergence is, however, limited by the fundamental requirement that the dispute must concern the same specified dismissal alleged to in contravention of Part 3-1. Nor is mediation after the issue of the court application precluded.
86 More importantly, a requirement that the applicant’s principal claims in a court application first be comprehensively adumbrated in the FWA application appears inconsistent with the effective operation of the FWA application and contemplated process.
87 The FWA application must (subject to any extension) be made within a relatively short period from the date on which the dismissal takes effect. No formal statement akin to a pleading is prescribed and the legislation neither assumes nor requires the involvement of legal representatives.
88 If misstatement or omission from the FWA application excluded a claim from a subsequent court application, there would be pressure precisely to articulate claims and unselectively to include all potentially relevant matters at a preliminary stage. The applicant would in effect be required exhaustively and accurately to frame his or her case in essentially final form at the FWA application stage, in order to avoid the prohibition on litigation.
89 The omission of a significant claim from the FWA application would not, on the respondent’s construction, absolutely bar its inclusion in a subsequent court application, as the applicant might secure an additional certificate and any necessary extension of time from FWA. Such a course would, however, be uncertain and cumbersome. The FWA application and process could constitute a draconian hurdle, rather than affording the opportunity for conciliation in a relatively informal forum.
90 Therefore, while on the respondent’s construction the FWA conference would be more comprehensively based, and a respondent, at least, fully informed of an applicant’s ultimate case, the informal, essentially preliminary character of the FWA application and process would be significantly compromised.
91 In my opinion, on the better view, “the dispute” in s 371(1) in relation to which the making of a general protections court application is prohibited (subject to the specified conditions) is not limited to the applicant’s substantive claims made in the FWA application.
92 If, contrary to that view, the relevant dispute is thus limited, a general protections court application “in relation to” that dispute could legitimately include new claims, additional to and different from those in the FWA application, within the jurisdiction conferred by the issue of a certificate under s 369 in relation to the dispute.
93 In the present case, the statement of claim is, in my view, a general protections court application which is “in relation to” the dispute set out in the applicant’s FWA application. While one of the three additional complaints in the statement of claim is apparently a repetition of the substance of a complaint referred to in the FWA application, it was made to a different person on a later date. The other two additional complaints are not identifiable in the FWA application.
94 Nevertheless, all three additional complaints clearly arise from the same factual matrix and, as part of the narrative, would (even if excluded as an independent basis for relief) be relevant and admissible in relation to claims based on the two complaints in the FWA application. In my opinion, however, because the general protections court application including claims based on the three additional complaints is “in relation to” the dispute contained in the applicant’s FWA application, the court has jurisdiction even if (contrary to the views expressed above) the narrow meaning of dispute advocated by the respondent applies.
95 It follows that, in my opinion, the court has jurisdiction in relation to the applicant’s claims based on the three complaints which were not alleged in her FWA application.
The judgment of the Federal Court in Shea (No. 1) is binding upon this Court: Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ; Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 at [29] per Spender, Buchanan and Perram JJ; CEPU (Western Australian Division) v Fortescue Metals Group Ltd [2016] FCCA 1227; (2016) 310 FLR 1 at [50]-[55] per Judge Lucev.
Thus, this Court in dealing with the allegation of accessorial liability against Saipem is not limited to the applicant’s substantive claims made in the FWA application. Further, and in any event, it is plain that the allegations made in relation to accessorial liability arise “in relation to”, and therefore within the scope of, the general protections claim brought before the FWC by Mr Bognar, and as such the Court has jurisdiction in any event: Shea (No. 1) at [94] per Dodds-Streeton J.
The Court notes that in Condamine Catchment this Court in an ex tempore judgment held that it had jurisdiction to hear an action against respondents by reason of s.550(1) of the FW Act and that no Section 368 Certificate was necessary in relation to such persons: Condamine Catchment at [7]-[10] per Judge Jarrett.
It is plain that the weight of considered authority, including Shea (No. 1), Devonshire, Zehnder and Condamine Catchment all favour the view that this Court has jurisdiction in the circumstances of the application presently before it. To the extent that Dain indicates otherwise it is in the Court’s view plainly wrong.
For the above reasons, Saipem’s argument that this Court has no jurisdiction to deal with the claim under s.550 of the FW Act that Saipem is accessorially liable in relation to the alleged contravention cannot succeed. Provided that a Section 368 Certificate has issued from the FWC, and provided that the general protections court application is in relation to the same dismissal (in the broad sense: see Shea (No. 1)), accessorial liability is limited only by the terms of s.550 of the FW Act, and the capacity to bring a party alleged to be accessorially liable within the relevant acts or omissions set out in s.550(2) of the FW Act.
Having regard to all of the above matters, the Court is of the view that it has jurisdiction to deal with the allegation of accessorial liability against Saipem, and that part of Saipem’s application in a case which seeks to have it removed as a party, or to have the application dismissed for want of jurisdiction, cannot succeed.
No reasonable prospect of success
Saipem also seeks the dismissal of the application on the basis that it has no reasonable prospect of success. Essentially, this aspect of Saipem’s argument rests upon its assertion that it was not the employer of Mr Bognar.
The Court notes that in the Originating Application and Form 2 the employer of Mr Bognar is asserted to be Skilled Offshore. In the Statement of Claim at [10] it is arguably alleged that both Skilled Offshore and Saipem breached ss.340 and 346 of the FW Act “by dismissing Bognar (“the Adverse Action”)”. It is this assertion which founds the basis for Saipem’s claim that the application has no reasonable prospect of success because it was not the employer of Mr Bognar.
The Court notes that Saipem sought the dismissal of the application under r.13.10 of the FCC Rules, and has not sought to strike out any provisions of the Statement of Claim, and in particular any part of the Statement of Claim at [10].
Rule 13.10 of the FCC Rules replicates part of s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) and the authorities on s.17A of the FCCA Act are useful in considering r.13.10 of the FCC Rules, as was observed by the Federal Court in relation to the equivalent provisions in s.31A of the Federal Court of Australia Act 1976 (Cth) (“FC Act”) and r.26.01 of the Federal Court Rules 2011 (Cth) (“FC Rules”) in Manday Investments Pty Ltd v Commonwealth Bank of Australia (No. 3) [2012] FCA 751 at [8] per McKerracher J and Leica Geosystems Pty Ltd v Koudstaal [2012] FCA 1337 at [16] per Collier J respectively. Albeit that s.17A of the FCCA Act and r.13.10(a) of the FCC Rules might afford slightly different means of summary relief, the High Court’s observations in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [58]-[60] per Hayne, Crennan, Kiefel and Bell JJ (“Spencer”) can nevertheless be applied to the “no reasonable prospect” provisions in r.13.10(a) of the FCC Rules.
In Spencer it was observed that:
a)no paraphrase of the expression “no reasonable prospect” can be adopted as a sufficient explanation of its operation, let alone definition of its content: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
b)the expression cannot usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it can be said that there is “no reasonable prospect”: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
c)the creation of a lexicon of words or phrases intended to capture the operation of the phrase is to be avoided: Spencer at [58] per Hayne, Crennan, Kiefel and Bell JJ;
d)where a plaintiff has no reasonable prospect of prosecuting a proceeding the proceeding could be described as “frivolous”, “untenable”, “groundless” or “faulty”, but these expressions, either alone or in combination, should not be understood as providing a sufficient chart of the metes and bounds of the relevant power, nor can reasonableness be sufficiently or completely illuminated by contrast with a claim which would be frivolous, untenable, groundless or faulty: Spencer at [59] per Hayne, Crennan, Kiefel and Bell JJ;
e)the power may only be exercised if a court is satisfied that the application has no reasonable prospect of success: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ;
f)the power to dismiss an action summarily is not to be exercised lightly: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ; and
g)full weight must be given to the expression as a whole, and it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different procedural regimes: Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ.
In relation to the direct equivalent of s.17A of the FCCA Act in s.31A of the FC Act the Federal Court has observed in relation to the phrase “no reasonable prospect of success”, that:
a)a court must be satisfied that the applicant has no reasonable prospect of success;
b)evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects, and in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, a court should be more reluctant to dismiss a proceeding on the face of a pleading;
c)it was not Parliament’s intention to require a court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial;
d)if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said, where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds, that there is “no reasonable prospect of success”;
e)in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party;
f)a summary dismissal proceeding ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial;
g)the mere presence of a trifling, implausible, tenuous or tangentially relevant factual controversy is not a bar to the exercise of the summary dismissal power; and
h)what is required is a prediction of the outcome of a trial on the merits but not an actual adjudication of those merits such that a court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed.
See George v Fletcher (Trustee) [2010] FCAFC 53 at [75] per Ryan and Logan JJ; White Industries Aust Ltd & Anor v Federal Commissioner of Taxation & Anor [2007] FCA 511; (2007) 160 FCR 298; (2007) 66 ATR 306; (2007) 240 ALR 792; (2007) 95 ALD 30; (2007) ATC 4441 at [50]-[54] per Lindgren J; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd & Ors [2008] FCAFC 60; (2008) 167 FCR 372; (2008) 246 ALR 465; (2008) 103 ALD 505 at [45] per Rares J; Lawrenson Light Metal Die Casting Pty Ltd (in liq) v Cosmick Pty Ltd [2006] FCA 753 at [15] per Heerey J; Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6] per Gilmour J.
The Court’s power to summarily dismiss an application is discretionary, and Saipem in making the summary dismissal application, bears the onus of persuading the Court to make such an order: Australian Securities & Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256; (2013) 302 ALR 671; (2013) 94 ACSR 623 at [46] per Reeve J (“Cassimatis”).
The difficulty with Saipem’s assertion that the application by Mr Bognar ought to be summarily dismissed as having no reasonable prospect of success is that irrespective of what is said at the Statement of Claim at [10] as to Saipem being the employer, and even if Saipem is not the employer as it asserts, there is an independent basis for the application to proceed against Saipem. That independent basis is at [30] and [31] of the Statement of Claim which allege that:
30. By virtue of the matters referred to in the preceding paragraphs and Section 550 of the FW Act, it is alleged Saipem was involved in Skilled's alleged contraventions of Sections 340 and/or 346 of the FW Act.
31. It is alleged that by its conduct, Saipem has in relation to the Adverse Action;
(a) aided, abetted, counselled or procured Skilled's alleged contraventions of Sections 340 and/or 346 of the FW Act; and/or
(b) induced Skilled's alleged contraventions of Sections 340 and/or 346 of the FW Act; and/or
(c) by its conduct referred to in the preceding paragraphs been knowingly concerned in or a party to Skilled's alleged contraventions of Sections 340 and/or 346 of the FW Act.
Although there is some linkage to the “preceding paragraphs” by the use of those words at [30] of the Statement of Claim, the alleged accessorial liability under s.550 of the FW Act stands independent of any alleged employer-employee relationship between Saipem and Mr Bognar. Thus, if Saipem is not the employer of Mr Bognar (and the Court notes that that it is not actually alleged by Mr Bognar in the Form 2 that Saipem was his employer) that does not relieve Saipem of potential accessorial liability under s.550 of the FW Act by reason of its alleged involvement in the alleged contraventions of the FW Act by Skilled Offshore. Thus, [30] and [31] of the Statement of Claim provide an independent basis, apart from [10] of the Statement of Claim, upon which Mr Bognar’s application might proceed irrespective of whether or not he was employed by Saipem.
In any event, the Court is of the view that [10] of the Statement of Claim referring to Saipem having breached ss.340 and 346 of the FW Act by dismissing Mr Bognar is arguably a valid plea against Saipem by reason of the provisions of s.550 of the FW Act which provides that a person involved in a contravention “is taken to have contravened that provision”. Thus, [10] of the Statement of Claim may not be asserting that Saipem was Mr Bognar’s employer, but rather that Saipem contravened ss.340 and 346 of the FW Act by reason of Skilled Offshore’s alleged contraventions of those provisions of the FW Act.
For the above reasons, the Court is of the view that that part of Saipem’s application in a case to dismiss the Application as having no reasonable prospect of success cannot succeed.
Abuse of process
Saipem also seeks to have the Application dismissed as an abuse of process, citing Rogers and asserting that it would be unfair if the Application was to proceed and that it would bring the interests of justice into disrepute. Essentially, that contention is founded upon Saipem’s arguments that the Court lacks jurisdiction, and that the Application has no reasonable prospect of success.
Having regard to what the Court has said above in relation to its jurisdiction to deal with matters under s.550 of the FW Act, and as to whether or not Application has reasonable prospects of success, Saipem’s claim that it would be unfair to it, and would bring the interests of justice into disrepute, if the Application were to proceed, is not an argument which can succeed.
Conclusion and orders
For the reasons set out above Saipem’s arguments in support of its application in a case cannot succeed, and it follows that Saipem’s application in a case must be dismissed. There will be an order accordingly.
In relation to costs, and bearing in mind the provisions of s.570(2) of the FW Act, which make costs in FW Act proceedings in this Court the exception rather than the rule, the parties will need to give consideration as to whether a costs application by either of them is justified in the circumstances. If a costs application is to be made then it can be made in accordance with the provisions of r.21.02(1)(a) of the FCC Rules, and if any such application is made, the Court will list that costs application for directions. Otherwise, there will be a further order that the matter be adjourned to a directions hearing at 4.30pm on 2 December 2016.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 30 November 2016
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