Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Active Tree Services Pty Ltd

[2011] FWA 5418

[2011] FWA 5418

FAIR WORK AUSTRALIA

REASONS FOR DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Active Tree Services Pty Ltd
(C2011/5152)

COMMISSIONER CLOGHAN PERTH, 22 AUGUST 2011

Alleged contravention of s.340, s.351 or s.352 - adverse action against Mr Carl Cairns, Mr Mark Smith and Mr Wade Baldwin.

[1] On 19 July 2011, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (“the Applicant”) made application (to be referred to as “the Current Application”) to Fair Work Australia (FWA) to deal with an alleged contravention of Part 3-1 of the Fair Work Act 2009 (“the FW Act”).

[2] As the alleged contravention involved the dismissals of Carl Cairns, Mark Smith and Wade Baldwin (“the Employees”), the application was made pursuant to s.365 of the FW Act.

[3] The Employees were employed by Active Tree Services Pty Ltd (“the Employer”) and their employment ceased on 14 July 2010.

[4] For the Tribunal to deal with the substance of the application, it is necessary, in the first instance, for FWA to determine whether an extension of time be allowed to 19 July 2011 to file the application.

[5] An application pursuant to s.365 of the FW Act must be made within 60 days after the dismissal took effect, or as determined by FWA if it is satisfied that there are exceptional circumstances.

[6] Following a hearing on 8 August 2011 in Brisbane, I declined the Applicant’s request for an extension of time to file the Current Application. In declining the Applicant’s request, I provided brief reasons with fuller and written reasons to follow. These are my written reasons for declining the Applicant’s request for an extension of time in which to lodge the application.

RELEVANT BACKGROUND FACTS

[7] On 2 September 2010, the CEPU made application to FWA (C2010/556) to deal with an alleged contravention of Part 3-1 of the FW Act (referred to as “the First Application”).

[8] Shortly put, in the First Application, the CEPU alleged that the Employer dismissed the Employees because they were members of the CEPU, advancing the interests of the CEPU, participation in the process of a Protected Action Ballot Order application and taking part in protected industrial action (referred to as “Original Allegations”).

[9] On 9 September 2010, Senior Deputy President Richards convened a conference of the parties in accordance with s.368 of the FW Act.

[10] Senior Deputy President Richards issued a certificate on 16 September 2010 pursuant to s.369 of the FW Act, stating that he was satisfied that all reasonable attempts to resolve the dispute in the First Application have been, or likely to be, unsuccessful.

[11] Relevantly, for the purposes of the Current Application, the CEPU in the First Application did not allege that the Employer had relied upon, and used the terms and operation of a matrix, when dismissing the employees (“the Matrix Allegations”).

[12] It is not disputed that the Matrix Allegations were discussed at the conference before Senior Deputy President Richards on 9 September 2010.

[13] It is also not contested that, having been made aware of the Employer’s rationale in ceasing the employment of the Employees, the CEPU did not make a further application to FWA notifying it of a dispute with the Employer and making “new” allegations until the Current Application.

RELEVANT FEDERAL MAGISTRATE PROCEEDINGS

[14] On 30 September 2010, the CEPU filed with the Federal Magistrates Court of Australia a general protections court application (“Court Application”) under Division 2 of Part 4-1 of the FW Act for orders in relation to the alleged contravention by the Employer of Part 3-1 of the FW Act.

[15] The Court Application contained, in a Statement of Claim, at paragraphs 15-24, the Matrix Allegations which were not specified in the First Application to FWA.

[16] On 19 November 2010, the Employer filed in the Federal Magistrates Court its response to the Court Application expressly resisting the claims set out in paragraphs 15-24 of the CEPU’s Statement of Claim. The Employer resisted the CEPU claims on the basis that these claims were not the Original Allegations made in the First Application to FWA in which Senior Deputy President Richards had issued the pre-conditional certificate required for the Court Application.

[17] On 13 July 2011, Federal Magistrate Coker issued his Reasons for Judgement (CEPU v Active Tree Services Pty Ltd [2011] FMCA 535) dismissing, as being beyond the jurisdiction of the Court, those parts of the Court Application relating to the Matrix Allegations. In his Reasons for Judgement, Coker FM states:

“27. It is conceded by the applicant, however, that whilst reference was made to this “matrix table”, it was not actually disclosed in any real or comprehensive form by the respondent to the applicant, nor in fact was a copy of the matrix table made available in relation to the proceedings.

28. From the applicant’s perspective, therefore, it is suggested that this is not a new matter, and more particularly it is clearly understood, at least they say from their perspective, that the certificate which was issued by Fair Work Australia, following the conciliation conference, related to the attempts to resolve the dispute between the parties, including not only those matters which were delineated in the application brought before Fair Work Australia, but also those matters which were the subject of negotiation at the conciliation conference.

...

31. But there is a different perspective to consider in the matter, in light of the fact that it appears clearly to be acknowledged that, at least to some degree, this issue of a “matrix table” was the subject of discussion, at the conciliation conference.

32. It may have been the case that that was discussed, but I must say that I have some concerns as to whether the certificate sought to be relied upon, relates to all matters, including those which may have been the subject of negotiation or discussion at the conciliation conference, or relates only to those matters which are the subject of the dispute, as detailed in the application brought before Fair Work Australia.

33. In the end, I have come to the decision that there is a requirement for there to be as full as possible particularity, in relation to the nature of the dispute, before the conduct of the conciliation conference is able to be considered. It was submitted to me that there is a “jurisdictional prerequisite for the commencement of the process, pursuant to section 365 of the Fair Work Act” and that is that “the dispute”, referred to Fair Work Australia, can only be “the dispute”, as alleged in the application made to Fair Work Australia.

34. It is clear that the use of the term “dispute” in each of the sections of the Act to which I have referred, section 365, section 368, section 369 and section 371, are one and the same dispute and not one which is simply a developing area of complaint or concern, following through from the negotiating process.

35. To consider otherwise is in my view a recipe for disaster, because it is clear that the assistance required from Fair Work Australia, in relation to the conciliation process, relates to as full as possible disclosure of the issues of the dispute and enunciation of the basis upon which an applicant seeks to bring the claim.

36. Accordingly, I have come to the determination that the only appropriate course in relation to this matter is to order, as sought on the part of the respondent, that the application in respect of the matter set out in paragraphs 15 to 24 of the amended claim under the Fair Work Act 2009, should be dismissed as at this time, being beyond the jurisdiction of the court to hear and determine the matter, but also to note, that it is properly contemplated that an application would be further made to Fair Work Australia to specifically deal with the issues in dispute, as delineated in paragraphs 15 to 24 of the amended claim under the Fair Work Act, and that it would be anticipated that in the circumstances of this particular matter, that the appropriate concession would be given with regard to an extension of time to bring any such proceedings.”

[18] Subsequent to Federal Magistrate Coker’s Reasons for Judgement, the CEPU, consistent with paragraph 36, made the Current Application to FWA.

CIRCUMSTANCES IN WHICH AN EXTENSION OF TIME MAY BE GRANTED IN FILING AN APPLICATION

[19] Subsection 366(2) of the FW Act provides that the Tribunal may extend the time limit if it is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.

[20] “Exceptional” is that which is an exception. Put differently, an application must be received within 60 days after the dismissal took effect, unless an exception exists to negate the standard time limit. Particular exceptions are not listed in the FW Act, hence, it is necessary for FWA to stand back and look at the circumstances. It should be said that because the circumstances themselves have not resulted in compliance with the standard time limit of 60 days, that of itself, does not necessarily lead to exceptional circumstances. Further, because the circumstances are unusual, atypical or extraordinary, of itself, does not also lead to exceptional circumstances. There are appropriate exceptional circumstances and circumstances in which an extension of time should not be granted.

APPLICANT’S CASE FOR WHY THE TIME LIMIT SHOULD BE EXTENDED TO FILE THE APPLICATION

[21] The Applicant makes the following points in support of an extension of time being granted:

• the principles in Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298 upon which the criteria in s.366(2) of the FW Act are based, should be utilised as a general guide by the Tribunal in exercising its discretion to extend the time limit to file the application;



• at the time of making the First Application, the Applicant was unaware that the Employees had been made redundant by reference to a matrix which eventually led to the Matrix Allegations;



• the factors in the matrix used by the Employer had been misconstrued;



• the Judgement of Federal Magistrate Coker that the Matrix Allegations could not form part of the Court Application, as they have not been pleaded in the First Application to FWA;



• the delay experienced by the Applicant in having the Employer’s jurisdictional objection determined in the Federal Magistrates Court;



• “the assumption of Federal Magistrate Coker that it is properly contemplated that an application would be further made to FWA to specifically deal with the issues in dispute as delineated in paragraphs 15 to 24 of the amended claim under the FW Act and that it would be anticipated that in the circumstances of this particular matter, that the appropriate concessions would be given with regard to an extension of time to bring any such proceedings.” 1;



• the Applicant has, at all times, actively agitated the dismissal of the Employees in FWA, and the Federal Magistrates Court;



• there is no prejudice to the Employer caused by the delay;



• the merits of the application.

EMPLOYER’S SUBMISSION FOR WHY THE TIME LIMIT SHOULD NOT BE EXTENDED TO FILE THE APPLICATION

[22] The Employer submits that:

• on 9 September 2010, at the conciliation conference conducted by Senior Deputy President Richards, the Employer discussed and the Applicant possessed, information relating to the matrix which was used to make the Employees redundant. As at 9 September 2009, the Applicant could have filed a general protections application within the 60 day time limit;



• despite knowing the relevant information on 9 September 2010 and the provisions of the FW Act regarding the time line, the Applicant did not elect to file an application in FWA, on the Matrix Allegations, until 19 July 2011;



• the certificate issued by Senior Deputy President Richards did not deal with allegations that the Employer had taken adverse action against the Employees in breach of provisions of the FW Act, other than those contained in the First Application to FWA;



• as a consequence of the Applicant’s Statement of Claim in the Court Application containing the Matrix Allegations, the Employer filed its response on 19 November 2010 expressly resisting the Matrix Allegations as they were beyond the jurisdiction of the Federal Magistrates Court to hear and determine, in view of the pre-conditions required in s.371(1) of the FW Act;



• from 19 November 2010, the Applicant had been apprised of all the relevant facts relating to the matrix and the Employer’s jurisdictional objection, and yet took no action under the FW Act in respect to the workplace rights, that this Current Application is seeking to protect;



• rather than be proactive to protect its position, the Applicant contented itself to seek a judgement from the Federal Magistrates Court, which turned out to be 12 months after the Employees were terminated;



• the Applicant is seeking approximately 300 days beyond the 60 day time limit since the date when the Employees were made redundant -- an extension of that duration is not warranted;



• since 14 July 2010 when the Employees were made redundant, all of the relevant 15 employees were made redundant within three months, and the Employer has closed that part of its business;



• the opinion of Federal Magistrate Coker was beyond his jurisdiction. Federal Magistrate Coker did not have the benefit of argument as to whether an extension of time to file an application should be granted or not. The discretion of whether to grant an extension of time is the sole responsibility of FWA. Further, the Tribunal should not have any regard to the statements made by Federal Magistrate Coker regarding the extension of time and any “expectations of concessions by the Employer was not, with respect, something he was entitled to have” 2; and



• the General Manager and local Manager have left their employment with the Employer, and in the circumstances, this may prejudice the Employer.

CONSIDERATION AND CONCLUSION

[23] The facts concerning the Current Application are relatively straightforward. The Employer made redundant, on 14 July 2010, Messrs Cairns, Smith and Baldwin. The Employees were in the first group of approximately 15 employees who were made redundant over the following three (3) months.

[24] In due course, the CEPU made what is commonly known as a General Protections application to FWA alleging that the Employer had contravened specific provisions relating to Part 3-1 of the FW Act. The Tribunal, as it must, conducted a conference to deal with the dispute. At the conference, the Employer rejected the assertion that the Employees were made redundant for the reasons claimed by the CEPU, and referred to a matrix as the basis of why these employees were chosen to be the first group, in preference to the remaining employees.

[25] The Tribunal, as it must, issued a certificate stating that it was satisfied that all reasonable attempts have been and are likely to be unsuccessful in resolving the dispute.

[26] If, at this stage, the CEPU’s assertions as to the reasons why the Employees had been made redundant, and the Employer’s justification, had been on “all fours”, it is likely that this application would not be before the Tribunal. However, as is often the case in industrial disputation, especially where termination of employment is involved, conclusions are reached before communication commences. It is also often the case, usually at the Tribunal’s prompting, explanations or causes of action are revealed for the first time in conference.

[27] Subsequent to the issuing of the certificate, the reasons revealed by the Employer at conference in making the Employees redundant were the subject of claims (Matrix Allegations) included in the CEPU’s Statement of Claim to the Federal Magistrates Court.

[28] While I did not have access to documents in the Federal Magistrates Court, it would appear that the representatives for both the CEPU and the Employer approached the Federal Magistrates Court on 10 June 2011 as to whether the Court had jurisdiction to hear and determine those matters relating to the Matrix Allegations; that jurisdictional issue was heard on 24 June 2011 with the Judgement and Reasons for Judgement delivered on 13 July 2011.

[29] Federal Magistrate Coker determined that the dispute dealt with by FWA in respect to which a certificate is issued and that dealt with by the Court pursuant to ss.365, 368 and 369 must be one and the same; to be otherwise would be a “recipe for disaster”. Federal Magistrate Coker dismissed that part of the claim relating to the Matrix Allegations, as beyond jurisdiction. As a consequence of that Judgement, the CEPU has filed the Current Application to remedy that jurisdictional defect in the Court Application.

[30] I am satisfied that, at least from the date of the conference before Senior Deputy President Richards on 9 September 2010, the CEPU was aware of two sources of possible complaint regarding the redundancy of the Employees.

[31] I am satisfied that by 5 October 2010, the CEPU had sufficient information to document both sources of complaint, that is, the Original Allegations and the Matrix Allegations.

[32] I am also satisfied that on or about 19 November 2010, the CEPU was aware of the jurisdictional objection by the Employer to the Federal Magistrates Court hearing and determining those matters relating to the Matrix Allegations.

[33] Notwithstanding this knowledge, the CEPU did not, at that time, file a separate General Protections application relating to the Matrix Allegations as it has now done in the Current Application.

[34] If an application concerning the Matrix Allegations had been made to FWA shortly after 19 November 2010, the matter would still have been subject to an extension of time request but, the preceding events and greater certainty of knowledge, would have been in close proximity. While a decision to extend the time would have been a matter for the relevant Tribunal member to determine, the CEPU could not have been accused of being slow to act or respond to changing circumstances.

[35] On or around 19 November 2010, both the CEPU and the Employer knew each other’s position regarding alleged contravention of the FW Act. At this point, the CEPU knew of the uncertainty as to its claims in the Court Application concerning the Matrix Allegations.

[36] Rather than file a new General Protections application with FWA concerning the Matrix Allegations, the CEPU continued its course in the Federal Magistrates Court in what it described as, a “technical construction of a new area of law not previously tested” 3 and “in a novel area of law”4.

[37] As a result of proceedings in the Federal Magistrates Court, both parties appear to have adopted an approach now, if not before, that there are two separate claims relating to the Employees termination of employment. In my opinion, each employee had one contract of employment, each employee has had their contract of employment terminated on one occasion and each employee is claiming that their termination of employment was contrary to Part 3-1 General Protections of the FW Act.

[38] In my view, the important but simple feature of Part 3-1 of the FW Act, is that employees are entitled to be protected from adverse action which breaches their workplace rights, freedom of association, lawful industrial activities and other protections, including discrimination.

[39] In my opinion, the construction of s.365 of the FW Act has two materially important and simple features, and they are: that the person has been dismissed and that the dismissal was allegedly in contravention of Part 3-1 of the FW Act. Should these two material features be evident to the Tribunal, the Tribunal must conduct a conference.

[40] In short, the Tribunal must deal with a dispute if it has the relevant material which characterises that an employee has been dismissed, and the employee alleges that the dismissal is in contravention of Part 3-1 of the FW Act.

[41] Having been required to deal with a dispute, it is not uncommon for the applicant to advance argument to FWA in one, two or more alternative ways in which the other party has not complied with Part 3-1 of the FW Act. In some instances, the allegation of contravention of Part 3-1 of the FW Act, expand or contract in light of discussions at conference.

[42] Further, and finally, in relation to the provisions of the FW Act relating to the mandatory conference, which must be held where there is a “dispute”, there is nothing to suggest that Parliament intended to limit FWA to deal with the content contained in the application only. On the contrary, Parliament has mandated the FWA deal with the “dispute” in its entirety without being fettered. And it is the “dispute”, in its wholeness, which the Tribunal certifies that all reasonable attempts to resolve have been, or are likely to be unsuccessful.

[43] Turning to a practical way to overcome the nature and manner in which these applications came to the Tribunal, where the nature of the dispute expands beyond that initially outlined in the application, is for applicants to make application pursuant to s.586 of the FW Act, where appropriate, to amend an application or seek an adjournment of proceedings, to amend an application in the context of further and better particulars in relation to a dispute. Such action would be consistent with s.577 of the FW Act, where FWA must perform and exercise its powers in a manner which, among others, is fair, just, quick, informal and avoids unnecessary technicalities.

[44] However, my view on the operations of an application pursuant to s.365 of the FW Act does not deal with the Applicant’s problem regarding the seeking of an extension of time of over 12 months since to file this Second Application.

[45] With regard to the reason for the delay, I find no merit in the Applicant not being prepared to reconsider its position on or about 19 November 2010 in light of the Employer’s response to the Court Application. At that time, I find it clear and unambiguous that the Employer made it known to the CEPU that the principal reason why these Employees were chosen for redundancy related to the matrix, and that it would challenge the jurisdiction of the Federal Magistrates Court to hear and determine matters relating to the Matrix Allegations.

[46] When presented with the Employer’s position, the Applicant could, and should have, foreseen the consequences of continuing its then course of action, in light of the risk that it may be unsuccessful. In my view, it would be unreasonable and wrong for the CEPU to now seek to take advantage of the delay when an alternative and parallel course of action was available to it at the time by way of a separate application to FWA setting out the Matrix Allegations.

[47] The Employees were made redundant on 14 July 2010. The CEPU disputed the terminations of employment on 2 September 2010. Following the issuance of the certificate by Senior Deputy President Richards on 16 September 2010, the CEPU filed an application in the Court, consequently I am satisfied the Employees’ representative has taken action to dispute the dismissals. However, I am also satisfied, for the reasons set out in paragraphs [45] and [46] that, in view of the Employer’s response, further action could and should have been taken.

[48] It is not uncommon for employers to claim prejudice caused by the delay in these proceedings whether a short time after the 60 days has expired or a much longer period. The mere fact that the time limit has been exceeded, of itself, does not lead to a prejudice to the employer. However, in this Application the elapsed time is significant - over 12 months since the date of dismissal. It is likely, but not certain, that for those persons present, their recollection of events will diminish. Further, that their perspective of those events may have changed as a result of what may, or may not, have happened in the intervening period.

[49] Specifically, the Employer’s Counsel submitted that the two relevant senior managers have left the Company, one in unhappy circumstances. Further, all of the 15 employees were made redundant in a period of three (3) months following the initial redundancies on 14 July 2010, and therefore, reducing options to the Employer if the dispute had been addressed in terms of the Matrix Allegations earlier. For these reasons, I find that there is a prejudice to the Employer, and it is appropriate to consider this prejudice, in exercising my discretion against an extension of time.

[50] While I have a limited detailed knowledge of the Current Application before the Tribunal, the question before me is whether there are exceptional circumstances to grant an extension of time. Consequently, for just and equitable reasons, I have considered the merits of the application and determined that it is not a positive or negative factor as to whether an extension of time should be granted.

[51] The Applicant conceded that the criteria relating to “fairness as between the person and other person in a like position” 5 had no direct relevance to the Current Application. While the Applicant referred to the situation in Craig Anthony Wedesweiller& Others v Robert William Cole and Others (1983) FCA 94; (1983) 71 FLR 256 as analogous, I find the circumstances sufficiently different not to be convinced that they are comparable.

[52] I now turn to the comments of Federal Magistrate Coker which were relied upon by the Applicant.

[53] Firstly, as a fact, the CEPU representative informed the Tribunal that when asked by Federal Magistrate Coker if an extension of time would be granted, Counsel for the Employer, “did not give any such concession or undertaking” 6.

[54] Despite these factual circumstances, the Applicant submitted that, “Federal Magistrate Coker appears to have taken this into account in his decision is itself exceptional circumstances, and, similarly the fact that the Federal Magistrates Court thought it appropriate an extension of time be granted by the tribunal, is again an exceptional circumstance warranting the extension sought” 7.

[55] I agree with the Applicant that Federal Magistrate Coker’s statements are exceptional, however, they are not acceptable in law. For that reason, I have disregarded his views and assumptions.

[56] In the alternative, I note that Division 3 of Part 6-1 of the FW Act is intended to prevent multiple actions in relation to the same dismissal. While this issue was not addressed by the representatives of the parties, given that there is no evidence of the dismissal or discontinuance of the Federal Magistrates Court proceedings in their entirety, the Applicant is prevented from making a “new” application on the basis of “double dipping” in relation to the same dismissals.

[57] With the exception of paragraphs 15-24 of Part G - Contraventions Alleged, the remaining parts of the Current Application have been adjourned. Consequently, in accordance with s.725 of the FW Act, the Employees are unable to make a further general protections application as it is one of the “kinds” of applications referred to in sections 726 to 732 of the FW Act.

[58] These are my fuller written reasons for my decision on 8 August 2011 to dismiss the application.

COMMISSIONER

Appearances:

Mr M Wright, on behalf of the CEPU.

Mr A K Herbert, Counsel, for the Respondent.

Hearing details:

2011:

Brisbane.

8 August.

 1   CEPU v Active Trees Services Pty Ltd [2011] FMCA 535 (para 36)

 2   PN 46

 3   Applicant’s submission, para 34.

 4   Applicant’s submission, para 33

 5 Section 366(e) of the Fair Work Act 2009

 6   PN 92

 7   PN 93

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