CFMEU v CSR Limited

[2000] FCA 1826

FEDERAL COURT OF AUSTRALIA

CFMEU v CSR Limited [2000] FCA 1826

INDUSTRIAL LAW – application that the whole of the proceedings be stayed or dismissed – abuse of process asserted in respect of certain claims of the applicant – whether the Court would lack jurisdiction to hear the remaining claims if these claims were dismissed – “matters arising under any law made by the Parliament”

Workplace Relations Act 1996 (Cth) s 412(1)
Judiciary Act 1903 (Cth) s 39B(1A)(c)
Federal Court of Australia Act1976 (Cth) ss 21, 22, 23

Felton v Mulligan (1971) 124 CLR 367
Transport Workers’ Union of Australia v Lee (Federal Court of Australia, Black CJ, Ryan and Goldberg JJ, 30 June 1998, unreported)
Coffey v Secretary, Department of Social Security [1999] FCA 375

CONSTRUCTION FORESTRY MINING AND ENERGY UNION v CSR LIMITED trading as CSR HUMES (ACN 000-001-276)

BRANSON J
SYDNEY
14 DECEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 848 of 2000

BETWEEN:	CONSTRUCTION FORESTRY MINING AND ENERGY UNION APPLICANT
AND:	CSR LIMITED trading as CSR HUMES (ACN 000-001-276) RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	14 DECEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The motion that the whole of the proceeding be stayed or dismissed be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY		N 848 of 2000
BETWEEN:	CONSTRUCTION FORESTRY MINING AND ENERGY UNION APPLICANT
AND:	CSR LIMITED trading as CSR HUMES (ACN 000-001-276) RESPONDENT
JUDGE:	BRANSON J
DATE:	14 DECEMBER 2000
PLACE:	SYDNEY

REASONS FOR DECISION

INTRODUCTION

1. Pursuant to a notice of motion dated 21 November 2000 the respondent has moved for an order that:

   “1.The whole of the proceedings be stayed or dismissed pursuant to Order 20 rule 2(1)(a) or alternatively Order 20 rule 2(1)(c) of the Federal Court Rules because the evidence relied upon by the Applicant in support of its Further Amended Statement of Claim in the within matter (the ‘Statement of Claim’) cannot ground any finding that the notice prescribed by section 285D(2) of the Workplace Relations Act 1996 was given to the Respondent, contrary to the matters pleaded in paragraphs 13-34 inclusive and subparagraphs 35(b), (c), (d), (e) and (f) of the Statement of Claim (the ‘Right of Entry Claim’) and, in particular, the matters pleaded in paragraphs 24, 27 and 31 of the Statement of Claim.”

   THE STATEMENT OF CLAIM

2. By its Further Amended Statement of Claim (“the Statement of Claim”) the applicant has pleaded, amongst other things, to the following effect:

   (a)that the respondent has at all material times had employees at its premises (“the Premises”) who are, and are lawfully entitled under the Registered Rules of the applicant to be, members of the applicant;

   (b)that the respondent has at all material times employed persons at the Premises who were eligible to become members of the applicant;

   (c)that at all material times work has been carried out at the Premises to which awards binding on the applicant apply;

   (d)that the respondent has unlawfully refused entry to the Premises to an officer of the applicant who holds a permit under the Workplace Relations Act1996 (Cth) (“the Act”) to enter and inspect premises; and

   (e)that the respondent intends to continue to refuse to allow any officer of the applicant to enter the Premises on the basis that, as it contends, employees of the respondent employed at the Premises are not eligible to be members of the applicant.

3. The relief sought by the Statement of Claim is as follows:

   “b)A declaration that the Applicant’s Registered Rules entitle it to enrol and represent the industrial interests of employees of the Respondent at the Premises.

   c)A declaration that the Respondent has contravened section 285E(2) of the Act in that the Respondent by itself, its servants or agents has on 10 July 2000, 3 August 2000 and 7 August 2000 refused entry to the Premises of Malcolm French, being an officer or employee of the Applicant and a person entitled to enter the Premises pursuant to sections 285B and 285C of the Act.

   d)An order for the imposition of a penalty on the Respondent pursuant to section 285F(2) of the Act for contravention(s) of section 285E(2) of the Act in that the Respondent by itself, its servants or agents has on 10 July 2000, 3 August 2000 and 7 August 2000 refused entry to the Premises of Malcolm French, being an officer or employee of the Applicant and a person entitled to enter the Premises pursuant to sections 285B and 285C of the Act.

   e)An injunction pursuant to section 285F(5) of the Act requiring that the Respondent by itself, its servants or agents not contravene, or cease contravening section 285E(2) of the Act by refusing entry to the Premises by officers or employees of the Applicant who are entitled to enter the Premises pursuant to sections 285B and 285C of the Act.

   f)An order pursuant to section 356(b) of the Act that where an order for a monetary penalty is imposed on the Respondent for contravention(s) of section 285E(2) of the Act that such penalty be paid to the Applicant as an organisation of employees registered pursuant to the Act.

   g)Such further or other orders as this honourable Court deems fit.”

   CONSIDERATION

4. The respondent’s argument on the motion was based on the assumption that, if the applicant’s claims for a declaration that the respondent contravened s 285E(2) of the Act on 10 July 2000, 3 August 2000 and 7 August 2000 and for the imposition of a penalty for such contraventions were summarily dismissed on the basis that the claims were an abuse of process, the Court would lack jurisdiction to grant the applicant any of the other final relief claimed by it. I do not accept that this assumption is well founded.

5. The Federal Court of Australia has original jurisdiction in any matter “arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter” (s 39B(1A)(c) of the Judiciary Act 1903 (Cth) (“the Judiciary Act”)). A matter will arise under a law made by the Parliament if the source of the right claimed by the applicant is a law of the Parliament (Felton v Mulligan (1971) 124 CLR 367 at 408 per Walsh J and at 416 per Gibbs J).

6. In Transport Workers’ Union of Australia v Lee (Federal Court of Australia, Black CJ, Ryan and Goldberg JJ, 30 June 1998, unreported) the Full Court held that an application for an injunction to restrain the bringing of proceedings under the law of Queensland on the basis that the applicant was, by reason of a provision of the Act, to be immune from such proceedings, gave rise to a matter arising under a law made by the Parliament, namely the Act. The Full Court stated that this was so –

   “… because it is necessary for the Court to determine whether that law confers the rights which the applicants claim in this proceeding.  There being a matter before the Court arising under a law made by the Parliament, the Court has jurisdiction derived from s 39B(1A)(c) to determine the controversy between the parties”.

7. In Coffey v Secretary, Department of Social Security [1999] FCA 375 the appellant brought a claim in debt against the respondent. He claimed that the respondent had wrongly withheld moneys from payments to which he had an entitlement under the Social Security Act 1991 (Cth). The respondent had withheld the moneys to recover an earlier purported overpayment to the appellant. At para 22 the Full Court observed:

   “The appellant claims that he was entitled under ss 559 and 1068 [of the Social Security Act 1991 (Cth)] to a benefit in the amount that was actually paid to him. The right that he seeks to enforce is conferred by those sections. The fact that in order to vindicate the right he has to deflect the operation of s 1224, by showing that his claim forms did not contain false information, does not signify. The claim remains one made under ss 559 and 1068. In our view, therefore, the debt claim arises under the Act for the purposes of s 39B(1A)(c).”

8. In this case, the applicant claims an injunction restraining the respondent from acting in contravention of s 285E(2) of the Act by refusing entry to the Premises by officers or employees of the applicant who are entitled under the Act to enter the Premises. This claim is a separate claim for relief from the applicant’s claim for an order for the imposition of a penalty on the respondent for past alleged contraventions of s 285E(2) of the Act. It is a claim based on the statutory entitlements to entry contained in ss 285B(2) and 285C(1) of the Act.

9. The Statement of Claim pleads, and the respondent, which has not yet filed a defence, has not contended to the contrary, that there is a controversy between the parties as to whether an officer or employee of the applicant could ever be entitled to enter the Premises. The fact that, in order to vindicate its assertion that certain of its officers and employees are entitled, on appropriate notice, to enter the Premises, the applicant must establish that some or all employees of the respondent at the Premises are eligible to be members of the applicant, does not alter the fact that the claim for an injunction is one which arises under ss 285B(2) and 285C(1) of the Act.

10. The applicant placed reliance on s 412(1) of the Act which gives the Court jurisdiction with respect to enumerated categories of matters arising under the Act. Subsection 412(1) was enacted before s 39B(1A)(c) of the Judiciary Act. The jurisdiction of the Court in respect of matters arising under the Act is now limited only by the terms of s 39B(1A)(c) of the Judiciary Act. Subsection 412(1) of the Act is, for present purposes, without significance.

11. I conclude that it is not the case that, if the applicant’s claims for a declaration that the respondent contravened s 285E(2) of the Act on 10 July 2000, 3 August 2000 and 7 August 2000 and for the imposition of a penalty for such contraventions were summarily dismissed on the ground that the claims were an abuse of process, the Court would lack jurisdiction to grant the applicant any of the other final relief claimed by it. In so concluding I assume that claims which are an abuse of process do not properly invoke the jurisdiction of the Court so as to give rise to a matter which the Court is empowered to determine in its entirety (s 22 of the Federal Court of Australia Act1976 (Cth) (“the Federal Court Act”)). The determination of this question may be left for a more appropriate occasion.

12. I am satisfied that the applicant has by the Statement of Claim invoked the jurisdiction vested in the Court by s 39B(1A)(c) of the Judiciary Act. The jurisdiction of the Court having been properly invoked, the power of the Court to make the injunction sought, should it consider it appropriate in all of the circumstances to do so, is to be found in s 23 of the Federal Court Act. The power of the Court to make the declaration concerning the applicant’s entitlement to enrol as members employees of the respondent, should it consider it appropriate in all of the circumstances to do so, is to be found in s 21 of the Federal Court Act.

13. The respondent did not move for an order that the proceeding should be stayed or dismissed in relation to one or more particular claim or claims for relief. It is thus neither necessary nor appropriate for me on the present motion to evaluate the sufficiency of the evidence upon which the applicant proposes to rely in support of its allegation that the respondent has acted in contravention of s 285E(2) of the Act on three separate occasions.

14. The motion that the whole of the proceeding by stayed or dismissed pursuant to O 20 r 2(1)(a) or (c) of the Federal Court Rules must be dismissed.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:   12 December 2000

Counsel for the Applicant:	Mr S Crawshaw SC
Solicitor for the Applicant:	Construction Forestry Mining and Energy Union
Counsel for the Respondent:	Mr T Caspersz
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	29 November 2000
Date of Judgment:	14 December 2000