Cameron v Fair Work Commission
[2020] FCCA 2300
•14 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAMERON v FAIR WORK COMMISSION & ANOR | [2020] FCCA 2300 |
| Catchwords: ADMINISTRATIVE LAW – Application for judicial review – application for review of a decision of the Fair Work Commission – no application for orders under the Fair Work Act 2009 (Cth) – no jurisdiction – application dismissed. |
| Legislation: Federal Court Rules 2001 (Cth), r.31.01 Administrative Decisions (Judicial Review) Act 1977 (Cth), s.3, Sch 1 Fair Work Act 2009 (Cth), s.562 Judiciary Act 1903 (Cth), s.38, 39B |
| Cases cited: Cameron v Murrin Murrin Operations Pty Ltd [2020] FWC 1566 Cameron v Murrin Murrin Operations Pty Ltd [2020] FWC 2088 Cameron v Murrin Murrin Operations Pty Ltd [2020] FWCFB 2484 Trustee for The MTGI Trust v Johnson [2016] FCAFC 140 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 |
| Applicant: | TROY DANIEL CAMERON |
| First Respondent: | FAIR WORK COMMISSION |
| Second Respondent: | MURRIN MURRIN OPERATIONS PTY LTD (ACN 076 717 505) |
| File Number: | MLG 1897 of 2020 |
| Judgment of: | Judge O'Sullivan |
| Hearing date: | 14 August 2020 |
| Date of Last Submission: | 14 August 2020 |
| Delivered at: | Dandenong (via telephone link) |
| Delivered on: | 14 August 2020 |
REPRESENTATION
| Counsel for the Applicant: | Self-Represented |
| Solicitors for the Applicant: | Self-Represented |
| Counsel for the First Respondent: | Mr Rawson |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | Mr Wade |
| Solicitors for the Second Respondent: | Ashurst |
ORDERS
The application filed on 5 June 2020 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1897 of 2020
| TROY DANIEL CAMERON |
Applicant
And
| FAIR WORK COMMISSION |
First Respondent
| MURRIN MURRIN OPERATIONS PTY LTD (ACN 076 717 505) |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Introduction
Before the Court today, 14 August 2020, are proceedings commenced by Troy Daniel Cameron ("the applicant"). The applicant is aggrieved by a concatenation of events that began in 2018 and ended in May 2020.
The applicant, who is 38 and gives his address as Bittern in Victoria, was employed with Murrin Murrin Operations Pty Ltd in late 2018 in Western Australia. After his employment came to an end, he brought proceedings in the Fair Work Commission.
Background
On 31 March 2020 and for the reasons published in Cameron v Murrin Murrin Operations Pty Ltd [2020] FWC 1566, Deputy President Beaumont refused to extend time for the applicant to bring unfair dismissal proceedings. The applicant then sought a stay of those orders, and for the reasons published as Cameron v Murrin Murrin Operations Pty Ltd [2020] FWC 2088, Deputy President Asbury refused that application. Finally, and for the reasons published as Cameron v Murrin Murrin Operations Pty Ltd [2020] FWCFB 2484, a Full Bench of the Fair Work Commission refused the applicant permission to appeal.
The applicant has then commenced proceedings for judicial review of a series of decisions of the Fair Work Commission ("the first respondent"), by application filed in this Court on 5 June 2020. The application, which was accompanied by an affidavit of only four paragraphs, but included annexures totalling 133 pages, was given a first Court date of 31 July 2020.
At the time the application was filed, the first respondent was the only other party to the proceedings. On 16 July 2020, the Australian Government Solicitor (“AGS”) filed a notice of address for service on behalf of the first respondent. There was then an application in a case filed on 29 July 2020 by the first respondent seeking orders joining Murrin Murrin Operations Pty Ltd, the applicant's former employer, as the second respondent to these proceedings. The application in a case was accompanied by an affidavit of Ms Caitlin Yazidjoglou, Solicitor from AGS, and then on the 30 July 2020 by an outline of submissions. Finally, and also on the 30 July 2020, Murrin Murrin Operations Pty Ltd filed a notice of address for service.
At the directions hearing on 31 July 2020, the applicant appeared in person. The first respondent was represented by Mr Rawson, Solicitor, and Mr Wade, Solicitor, was given leave to appear on behalf of Murrin Murrin Operations Pty Ltd. Given the applicant did not object, the first respondent (with the consent of Murrin Murrin Operations Pty Ltd (“the second respondent”)), pressed for the orders in the application in a case to be made, joining them as the second respondent to ensure there was a proper contradictor before the Court. The orders made on 31 July 2020 also adjourned the matter to today for a jurisdictional hearing as follows:
“1.Pursuant to Rule 11.01 of the Federal Circuit Court Rules 2001, Murrin Murrin Operations Pty Ltd be joined as the second respondent to these proceedings.
2.On or before 6 August 2020, the first and second respondents file and serve any affidavit material and submissions in relation to competency or whether the Court has jurisdiction to deal with the application filed 5 June 2020; and
3.On or before 13 August 2020, the applicant file and serve anything in reply to the submissions in order 2
4.The matter be adjourned to 14 August 2020 commencing at 10:00 am for jurisdictional hearing via telephone.
5.The application in a case filed 29 July 2020 be otherwise dismissed.”
The first respondent then filed a response on 4 August 2020, essentially, submitting to any order of the Court, save as to costs or compensation. The second respondent then filed an outline of submissions on 5 August 2020. However, despite having the opportunity to do so, the applicant abjured the opportunity to file submissions in reply, on or before, today's hearing. The parties were content for the Court to determine the question of jurisdiction on the papers.
The application
The application filed 5 June 2020 sought orders as follows:
“1.An order that the application for Unfair Dismissal hearing was received in time by the Fair Work Commission.
2.An order that the matter for Unfair Dismissal be heard, fairly, and without prejudice against me, in the fair Work Commission
3.An order that the matter be decided in a fair hearing, and for that hearing to be held in public, as is so required.
4.An order that I be allowed to present evidence and witnesses as would be fit, legal, and fair.
5.An order that the FWC pay for costs associated with this legal action, and $20,000 in compensation to myself (the Applicant).”
The affidavit filed in support was only four paragraphs (aside from annexures) as already noted and submitted that:
“1.That the Fair Work Commission did not rule on my matter of Unfair Dismissal, or the resulting appeal, correctly and fairly. [Appendix A page 112 – 123 & page 124 - 129]
2.That the Fair Work Commission did not allow me to present further evidence/witnesses at the appeal, but maintained that statements in the appeal were not supported by evidence. [Appendix A Page 130]
3.That the Fair Work Commission allowed a letter of suspension to be tabled in evidence, as a letter of termination/dismissal, or did not properly consider the employment contract in their decision.
4.The application for an Unfair Dismissal hearing was not filed out of time.”
Submissions
As was contemplated in the orders made 31 July 2020, the second respondent filed submissions in respect of jurisdiction, which were:
“1.The Applicant commenced proceedings by way of an originating application for judicial review, supported by affidavit (Review Application).
2.The Review Application seeks the reversal of the decision of the Commission at first instance and, by implication, the decision of the Full Bench of the Second Respondent (FWC), which refused to grant leave to appeal against the Commission's decision dismissing the Applicant's unfair dismissal application (Dismissal Application).
3.At first instance, the Commission dismissed the Dismissal Application on the basis that it was filed out of time and that there were no exceptional circumstances warranting the grant of an extension of time.[1]
[1] The decisions of the FWC to which the Review Application relates are annexed to the affidavit of Caitlin Moira Yazidjoglou, filed in support of the Second Respondent's joinder application, which was granted by this Court on Friday 31 July 2020.
4.The Review Application does not specify the statutory basis upon which it is grounded. At the request of this Court, the question to be addressed is whether the Federal Circuit Court of Australia has the requisite jurisdiction to entertain the Review Application.
5.In submissions filed on behalf of the FWC on 30 July 2020, the contention is advanced that this Court's jurisdiction is conferred by virtue of section 566 of the Fair Work Act 2009 (Cth) (FW Act).[2] That submission is not supported with reference to case authority and the First Respondent is not in agreement that section 566 of the FW Act has that reach.[3]
[2] See [8] of the submissions filed on behalf of the FWC dated 30 July 2020.
[3] Although not expressed to be the case, it may be that the principal submission advanced on behalf of the FWC is premised upon the judgement of Neville J, in Construction, Forestry, Mining and Energy Union v MPR Scaffolding Pty Ltd and Others [2017] FCCA 1593 (MPR Scaffolding). This was apparently the decision which was referred to by Mr Rawson at the conclusion of the proceedings on Friday 31 July 2020. As requested by this Court, the case citation was subsequently provided to both the Applicant and the First Respondent. The question whether or not MPR Scaffolding supports the proposition that this Court has the requisite jurisdiction to entertain the Review Application is addressed hereunder.
6.The decisions of the Full Bench of the FWC either granting or refusing appeals are plainly not susceptible to further appeal.[4] Although the judgement in Linfox is confined to concluding that "[n]o further statutory right of appeal is conferring from a decision of the Full Bench of Fair Work Australia to…"the Federal Court", that statement of law applies with equal force to the Federal Circuit Court.
[4] Linfox Australia Pty Ltd v Fair Work Commission [2013] FCAFC 157 (Linfox) at [15].
7.What remains then is the possibility of judicial review. In respect of decisions of the FWC, judicial review proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) are not competent.[5]
[5] The decisions of the FWC do not fall within the class of decisions to which the ADJR Act applies. In this regard, see schedule 1 section 3(a) to the ADJR Act.
8.If commenced in the Federal Court, judicial review proceedings in respect of decisions of the FWC need to be grounded in either sections 562 and 563 of the FW Act or section 39B of the Judiciary Act 1903 (Cth) (Judiciary Act).[6]
[6] They are of course often pleaded in the alternative, as in Linfox (see at [15]).
9.It is also competent for a review to be sought from the High Court (of any decision made by the FWC). The High Court's capacity to review the decisions of the FWC derives from section 75(v) of the Constitution, which affords the High Court original jurisdiction in relation to all matters "in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth".[7]
[7] In practice, however, applications for judicial review to the High Court are usually remitted to the Federal Court for decision, rather than being dealt with the High Court in the first instance. In this particular regard, section 563(j) of the FW Act refers to the Federal Court's jurisdiction in relation to matters remitted to it by the High Court. As regards the power to remit, see section 44 of the Judiciary Act. As noted by Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (5th edition), the Federal Court's judicial review jurisdiction under section 39B of the Judiciary Act is almost identical to the High Court's jurisdiction under section 75(v) of the Constitution (at [2.170]).
10. In their terms, the statutory provisions investing original review jurisdiction in both the Federal Court and the High Court do not provide – even by way of extension – for the concurrent jurisdiction of the Federal Circuit Court.[8]
[8] There do not appear to be any reported decisions in which the Federal Circuit Court has purported to exercise original judicial review jurisdiction directly under either section 39B of the Judiciary Act or section 75(v) of the Constitution in respect of decisions of the FWC. Although concerning an appeal from an order issued by the Federal Circuit Court for the sequestration of an estate, in Caporale v Deputy Commissioner of Taxation (No 2) [2013] FCA 473, Robertson J seemingly endorsed the Appellant's acceptance of the fact that the Federal Magistrate (as he then was) was not exercising jurisdiction under section 39B of the Judiciary Act (see at [8]). It is however not clear whether or not the concession was made generally with reference to the Federal Circuit Court's jurisdiction, or particularly with reference to the matter under consideration.
11.The FW Act provides separately (in sections 566 and 567) for the jurisdiction and powers of the Federal Circuit Court. Section 566 of the FW Act is a general provision and, save that it excludes from its ambit "criminal" matters, it is identical to section 562, which confers jurisdiction on the Federal Court.
12.Section 567 of the FW Act, for its part, details the circumstances or matters in respect of which the Federal Circuit Court's jurisdiction is to be exercised. Noticeably absent from those matters (or circumstances) is any reference to an equivalent provision to section 563(b) of the FW Act, where provision is made for the exercise of the Federal Court's jurisdiction in circumstances where "a writ of mandamus or prohibition or an injunction is sought in the Federal Court against a person holding office under this Act".
13.It is submitted that the fact that section 566 of the FW Act confers jurisdiction on the Federal Circuit Court "...in relation to any civil matter arising under this Act"[9] does not of itself imply that jurisdiction is conferred in respect of judicial review proceedings. If that were the case – and by way of analogy – there would have been no need (in section 563 of the FW Act) to specify the matters set forth in section 563(b) as section 562 would (on the FWC's submission) include judicial review within its ambit and reach.[10]
14.It is further submitted that the decision of Neville J in MPR Scaffolding is not authority for the proposition that the Federal Circuit Court has judicial review jurisdiction over the decisions of the FWC, whether in terms of section 39B of the Judiciary Act 1903 (Cth) or otherwise.[11]
…
17.It is accordingly submitted that this Court lacks the requisite jurisdiction to adjudicate the Review Application.
18.To the extent that this Court considers that the most appropriate course would be to exercise the Court's discretion to order a transfer under section 39(2)(b) of the Federal Magistrates Act 1999 (Cth) "on its own initiative" – and provided that the Applicant intends persisting with the Review Application – the First Respondent does not oppose that course.”
[9] There do not appear to be any reported decision in which the Federal Circuit Court has purported to exercise judicial review proceedings directed at decision of the FWC (in the unfair dismissal context) purely on the strength of section 566 of the FW Act.
[10] The absence of an equivalent to section 563(b) in section 567 of the FW Act must be taken to be deliberate and the implication to that omission are self-evident.
[11] It is instructive to note that, in deciding that collateral review proceedings were competent, Neville J did not do so with reference to either sections 566 or 567 of the FW Act, section 39(B) of the Judiciary Act or section 75(v) of the Constitution.
Consideration
Turning then to the consideration of whether this Court has the jurisdiction to deal with the application as filed. The application as filed was titled “Originating application for judicial review” and used a Form 66 and appeared to be for the purposes of Rule 31.01(1) of the Federal Court Rules 2011 (Cth), which provides:
“(1)A person who wants to apply for an order under section 11(1) of the AD(JR) Act must file an originating application in accordance with Form 66…”
However, the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) make clear at Schedule 1 that it does not apply to decisions under the Fair Work Act 2009 (Cth) (“the FW Act”), and the Court notes s.3(1)(d) and Schedule 1.
In the Federal Court Full Court decision published as Trustee for The MTGI Trust v Johnson [2016] FCAFC 140 at paragraph [95], it was noted that there is no right of appeal against a decision of the Full Bench as follows:
“95.There is no right of appeal against a decision of the Full Bench, hence the application under s.39B. Paragraph 39B(1A)(c) grants the Court jurisdiction in any matter arising under a law made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter. Section 562 of the FW Act confers jurisdiction on this Court in relation to any matter arising under that Act. Section 23 of the Federal Court of Australia Act 1976 (Cth) in turn gives the Court, in relation to matters in which it has jurisdiction, the power to issue or direct the issue of writs of such kinds as it thinks appropriate. In effect, the relief MTGI seeks is writs in the nature of certiorari to quash the two decisions of the Full Bench and mandamus to compel the Full Bench to reconsider its decisions according to law. As no claim is made that there was error of law on the face of the record, relief is only available if MTGI can establish that the decisions were affected by jurisdictional error.”
If the application filed by the applicant in this matter had been filed in the Federal Court, it could have exercised its jurisdiction under s.39B of the Judiciary Act 1903 (Cth) and under s.562 of the FW Act over a person holding office under the FW Act, whether a single commissioner or the Full Bench. The Court notes, in that regard, the decision of the Full Court of the Federal Court in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 at paragraph [171] where it was said:
“171.Section 39B(1)of the Judiciary Act provides that the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. Until 1 July 2009, s 39B(2) provided that a person holding office under the Workplace Relations Act1996 (Cth) was not an officer of the Commonwealth, but that exclusion was removed by the Fair Work (State Referral & Consequential & Other Amendments) Act 2009 (Cth). The purpose of the amendment was to give the Federal Court jurisdiction under s 39B(1) in matters in which mandamus, prohibition or an injunction was sought against a person holding office under the Workplace Relations Act. The Federal Court now has jurisdiction under s 39B(1) in any matter in which a remedy of this kind is sought against a person holding office under the Fair Work Act, including a Commissioner, whether at first instance or as a member of a Full Bench. The legislation does not preclude a grant of relief under s 39B(1) in respect of a decision of a Commissioner at first instance where there has been an appeal from that decision to a Full Bench.”
However, this application was not filed in the Federal Court, it was filed in the Federal Circuit Court (and not in the Fair Work Division of this Court), and it has clearly been filed as an application for judicial review. There was a reference in submissions to the jurisdiction of this Court under the FW Act and the decision in Construction, Forestry, Mining and Energy Union v MPR Scaffolding Pty Ltd & Ors [2017] FCCA 1593. However, unlike the proceedings involved in that decision, there has been no application filed in these proceedings seeking orders under the FW Act.
In this case, the Federal Circuit Court does not have jurisdiction to issue constitutional writs based on the occurrence of jurisdictional error, including a writ of certiorari. Sections 38 and 39B of the Judiciary Act 1903 (Cth) only gives such jurisdiction to the High Court and the Federal Court.
Whilst the second respondent adverted in the penultimate paragraph of its submissions to the proceedings being transferred to the Federal Court, given the reasons set out above, that this Court does have jurisdiction to deal with the proceedings, it is not appropriate to embark on that discretionary exercise, which would, in any event, require consultation between the heads of jurisdiction before any such order could be made.
Conclusion
Therefore, and as this Court does not have jurisdiction to deal with the application as filed, it should be dismissed as incompetent, and the Court so orders.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan
Associate:
Date: 20 August 2020
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