Community & Public Sector Union v Crown, in Right of the State of Victoria
[1999] FCA 743
•07 JUNE 1999
Community & Public Sector Union v Crown in Right of the State of Victoria [1999] FCA 743
Industrial Law
Community & Public Sector Union v Crown in Right of the State of Victoria [1999] FCA 743
INDUSTRIAL LAW - representative proceeding - whether sub-group proceeding constitutes a separate proceeding and therefore not permitted to continue to proceed as a representative proceeding - whether pursuant to s33N of the Federal Court of Australia Act 1976 (Cth) the Court is empowered to order that a sub-group proceeding no longer continue as a representative proceeding - whether the requirement for examination of the individual circumstances of the sub-group members by way of evidence determines that the proceeding should no longer continue as a representative proceeding
Federal Court of Australia Act 1976 (Cth) Part IVA, ss33N, 33Q, 33R
Workplace Relations Act 1996 (Cth) ss298K, 298(L)(1)(l), 298T, 298V,
Johnson Tiles Pty Ltd v Esso Australia Limited [1999] ATPR 41-679, cited
Milfull v Terranora Lakes Country Club [1998] ATPR 41-642, cited
Schanka v Employment National (Administration) Pty Ltd (1999) 86 IR 283, referred to
COMMUNITY & PUBLIC SECTION UNION and MICHAEL JAMES HOYE v
CROWN IN RIGHT OF THE STATE OF VICTORIA
VG 656 of 1998
MARSHALL J
MELBOURNE
7 JUNE 1999
BETWEEN: CPSU, THE COMMUNITY & PUBLIC SECTOR UNION First Applicant
MICHAEL JAMES HOYE
Second Applicant
AND: CROWN IN RIGHT OF THE STATE OF VICTORIA Respondent
IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 656 OF 1998 JUDGE: #DATE 07:06:1999
MARSHALL J DATE OF ORDER: 7 JUNE 1999 WHERE MADE: MELBOURNE
THE COURT ORDERS THAT:
The respondent's amended notice of motion dated 11 May 1999 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 VICTORIA DISTRICT REGISTRY VG 656 OF 1998
BETWEEN: CPSU, THE COMMUNITY & PUBLIC SECTOR UNION First Applicant
MICHAEL JAMES HOYE
Second Applicant
AND: CROWN IN RIGHT OF THE STATE OF VICTORIA Respondent
JUDGE: MARSHALL J DATE: 7 JUNE 1999 PLACE: MELBOURNE
REASONS FOR INTERLOCUTORY JUDGMENT
1 On 12 May 1999 the Court dealt with a notice of motion which had been filed by the respondent and was amended in Court on that day. The motion sought relief including the following:
"1. The proceeding no longer continue as a representative proceeding under Part IVA of the Federal Court of Australia Act 1976 to the extent that the Second Applicant brings the proceeding as a representative of a sub group as defined in paragraph 6 of the Amended Application dated 17 March 1999.2. In the alternative, the proceeding no longer continue as a representative proceeding under Part IVA of the Federal Court of Australia Act 1976."
2 Mr M McDonald, of counsel, appeared for the respondent and Mr S Moore, of counsel, appeared for the applicants.
Background
3 On 30 November 1998 the applicants made application pursuant to s298T of the Workplace Relations Act 1996 (Cth) ("the WR Act") and under Part IVA of the Federal Court of Australia Act 1976 (Cth) ("the FC Act").
4 The application was brought by the second applicant, Mr Hoye, as a representative party.
5 Paragraph 2 of the original application stated that:
"The group members ("the Employees") to whom this proceeding relates are the employees of the Crown in Right of the State of Victoria employed in the Department of Education ("the Department") engaged in various administrative and non-teaching duties and who have not entered into an Australian Workplace Agreement ("AWA") with the Respondent. This group of employees ("the Employees") numbers approximately 1000."
6 The application alleged that the respondent had contravened s298K of the WR Act by injuring Mr Hoye and the group members and/or altering their positions to their prejudice for reasons that include a prohibited reason.
7 The prohibited reasons alleged were:
* the group members were members of the first applicant ("the CPSU")
* the group members were entitled to the benefits of an award
* the group members were dissatisfied with their conditions of employment and the CPSU was seeking better industrial conditions on their behalf
8 The question of law or fact alleged to be common to the claims of the group members was whether the respondent had contravened s298K of the WR Act in the following circumstances which were alleged to have occurred:
* on 5 November 1998 the respondent advised the group members that only those of them who had signed an Australian Workplace Agreement ("AWA") on or before 31 December 1998 would receive two pay increases
* the respondent engaged in such conduct for the prohibited reasons referred to above
9 By its defence dated 1 March 1999 the respondent effectively contended that the relevant number of group members was 733.
10 The defence also took issue with whether the common question of law or fact identified by the application was common to all group members. Doubtless this was because not all group members were members of the CPSU.
11 On 15 March 1999 the applicants filed an amended statement of claim in which they alleged that Mr Hoye and a substantial number of the other members of the group were CPSU members.
12 A new paragraph was inserted into the amended statement of claim, which alleged that Mr Hoye and the other group members were dissatisfied with certain of their terms and conditions of employment, being conditions which the CPSU was seeking to improve on their behalf.
13 On 17 March 1999 the applicants filed an amended application. The amended application referred to Mr Hoye as also bringing the application as a representative of a sub-group pursuant to s33Q of the FC Act. The sub-group of employees to whom the sub-group application was related are CPSU members, described in the amended application as "the Union Employees". A further amended statement of claim was filed on 26 March 1999 which, inter alia, included allegations regarding "the Union Employees".
14 On 29 March 1999 the Court ordered that a sub-group, being those members of the representative group who are members of the CPSU be established. It also ordered that Mr Hoye be the sub-group representative party in accordance with s33Q of the FC Act.
The s33Q Point
15 Mr McDonald contended that the sub-group proceeding should not continue as a representative proceeding. He submitted that the sub-group proceeding was a separate proceeding in its own right such that the Court may order that it not proceed any longer as a representative proceeding.
16 The reason for seeking an order to that effect under s33N(1) of the FC Act was that the Court would require evidence from all of "the Union employees" to the extent that they were dissatisfied with certain conditions of employment being the same conditions of employment which the CPSU was seeking to improve before the respondent was required to satisfy its onus under s298V of the WR Act.
17 Mr McDonald submitted that it would be an inefficient and ineffective way of dealing with the claims of sub-group members for the Court to have to receive such evidence. Mr Moore submitted that the Court was not empowered under s33N of the FC Act to order that a sub-group proceeding no longer continue as a representative proceeding as distinct from an order which related to the entire proceeding.
18 Mr Moore prepared an outline of argument to assist the Court. Paragraphs 1 to 6 of that outline contained the following submissions:
"Jurisdiction1. The effect of the order sought by the Respondent in paragraph 1 of its Amended Notice of Motion is to discontinue that part of the representative proceeding which relates to the sub-group's ("the Union Employee's") application for relief. Such an order is beyond the jurisdiction conferred on the Court by s. 33N of the Federal Court of Australia Act (Cth) 1976 ("the Act").
2. Section 33N of the Act affords jurisdiction to the Court to make orders that "a proceeding no longer continue under this Part" (emphasis added) on the grounds specified therein. That section does not arm the Court with jurisdiction to make orders that certain parts of representative proceedings no longer continue under Part IVA of the Act. The Union Employees application for relief is a part of the single representative proceeding before the Court.
3. The Amended Application filed by the Applicants identifies the Second Applicant as a representative party of the Employees and as a representative party of the Union Employees. The claims made by the sub-group are part of the Amended Application and do not constitute separate proceedings able to be the subject of an order under s. 33N.
4. Given the location of s. 33N within Part IVA of the Act, the reference to "a proceeding" in that section should be construed within the definitions contained within that Part. Section 33A of the Act defines "representative proceeding" as a proceeding commenced under section 33C. It is such a proceeding which is the subject of s. 33N of the Act.
5. The omission of the word "representative" before the reference to "proceeding" in the opening words of s. 33N(1) does not imply that the reference to "proceeding" should be attributed with the meaning set out in the definitions in s. 4 of the Act. Such a construction ignores the context in which s. 33N appears. Further, the references in the sub-paragraphs of s. 33N(1) to "representative proceeding", confirm that it is a proceeding of this type which is contemplated by the reference to "proceeding" in the opening words of the section.
6. Further, sub-sections 33N(1)(c)-(d) direct the attention of the Court to a consideration of the "claims" being pursued by the group members. This reference is in contra-distinction to an assessment by the Court of any individual claim which forms part of a representative proceeding i.e.; a part of a representative proceeding."
19 I agree with the above submissions made by Mr Moore and reject the submission of Mr McDonald that the Court is empowered to grant the relief sought in the first paragraph of the notice of motion.
General Discretionary Considerations
20 Mr McDonald's alternative basis for the relief sought pursuant to the Court's discretion under s33N(1) of the FC Act relied upon the same considerations which are referred to at pars 16 and 17 of these reasons. However Mr McDonald accepted that it would be open to the Court, as a matter of robust case management, for the Court to excise from the trial of the proceeding matters relevant to s298L(1)(l) of the WR Act and for the Court to deal with the trial in so far as it relates to such matters, should it prove necessary, after judgment had been delivered on all other issues. In recording that Mr McDonald accepted that such a course would be open to the Court it should be noted that he maintained nonetheless that the relief sought in par 2 of the notice of motion should be granted.
21 Mr Moore also accepted that such a course was open to the Court but preferred a ruling on the motion on some precise basis, rather than a settlement of it, which settlement would now set in concrete the course which the Court may adopt in the management of the trial.
22 The requirement for examination of the individual circumstances of the sub-group members by way of evidence does not necessarily mean that the proceeding should no longer continue as a representative proceeding. The claims of the sub-group members give rise to substantial common issues in the proceeding which are independent from the issue of individual dissatisfaction in the sense described above. These common issues include the issue whether the members of the sub-group were injured by the respondent by reason of their membership of CPSU.
23 The fact that "some evidence will have to be given of...individual circumstances", does not mean that the proceeding should not continue as a representative one. See Johnson Tiles Pty Ltd v Esso Australia Limited, [1999] ATPR 41-679 and Milfull v Terranora Lakes Country Club [1998] ATPR 41-642. As Mr Moore submitted, Part IVA of the FC Act acknowledges that there may be non-common issues between group members. See ss33Q and 33R of the FC Act.
24 Mr McDonald placed particular reliance on the judgment of Moore J in Schanka v Employment National (Administration) Pty Ltd (1999) 86 IR 283. In Schanka Moore J held that the proceeding before him was appropriate to continue as a representative proceeding "for the time being". However his Honour indicated that if individual circumstances of employees in that matter required examination his "present view" was that it would be appropriate to make an order under s33N of the FC Act.
25 As the judge responsible for the case management of the proceeding in Schanka, Moore J was in the best position to determine what cause should be followed in that matter. I consider that I am in the corresponding position in this matter. At the moment I am of the view that the concern of the respondent about the conduct of the proceeding, insofar as it relates to s298L(1)(l) of the WR Act, can be met by robust case management in the manner referred to above.
26 Once all the affidavits to be relied upon have been filed and the matter is ready for trial it is open to the Court to re-visit the issue raised by the notice of motion. The Court may make orders to accommodate any difficulty, should one arise, by requirements to examine the individual circumstances of a large number of people, in respect of whom an allegation of dissatisfaction with industrial conditions is made.
Order
In the circumstances it is appropriate to order the respondent's amended notice of motion of 11 May 1999 be dismissed.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.
Associate:
Dated: 7 June 1999
Counsel for the Applicant: Mr S Moore Solicitor for the Applicant: Gill Kane and Brophy Counsel for the Respondent: Mr M McDonald Solicitor for the Respondent: Minter Ellison Date of Hearing: 7 and 12 May 1999 Date of Judgment: 7 June 1999
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