Construction, Forestry, Mining and Energy Union-Mining and Energy Division Queensland District Branch v Anglo Coal (Dawson Services) Pty Ltd

[2014] FWC 4708

[2014] FWC 4708

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union-Mining and Energy Division Queensland District Branch
v
Anglo Coal (Dawson Services) Pty Ltd
(C2013/6967)

DEPUTY PRESIDENT ASBURY BRISBANE, 15 JULY 2014

Application to deal with contraventions involving dismissal - Jurisdiction.

BACKGROUND

[1] The Construction Forestry Mining and Energy Union (CFMEU) has made an application under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a general protections dispute. The CFMEU alleges that in contravention of s.340 of the Act, Anglo Coal (Dawson Services) Pty Ltd (Anglo Coal) dismissed 86 employees because they had a workplace right to the benefit of the Dawson Mines Collective Enterprise Agreement 2010 (the Agreement) and the National Employment Standards (NES) in part 2-2 of the Act.

[2] In its Response to the application, Anglo Coal raised a number of objections to the application as follows:

● Anglo had no record of one of the persons named in the application;
● Four of the persons named in the application are still employed by Anglo Coal at Dawson Mine;
● 21 persons were terminated on the basis of voluntary redundancy which for the purposes of the Act does not constitute dismissal; and
● A single application under s.365 of the Act cannot cover multiple employees, so that the application has not been properly made under the Act.

[3] The application was subsequently amended so that some of the 86 names of persons listed in the original application were removed including the person of whom Anglo had no record; the four employees who were still employed; and 14 of the 21 persons made voluntarily redundant. Anglo Coal no longer presses objections in respect of the persons whose names have been removed from the application. The application was further amended to remove the 7 remaining persons who were made voluntarily redundant. Regardless of these amendments, Anglo Coal accepts that the question of whether a dismissal has occurred is not a question to be determined by the Commission.

[4] Accordingly, this decision deals with the objection of Anglo Coal on the ground that a single application covering multiple dismissals cannot be made under s.365 of the Act.

LEGISLATION

[5] General protections are dealt with in Part 3-1 of Chapter 3 of the Act. The Guide to Part 3-1 is found in s.334 as follows:

334 Guide to this Part

This Part provides general workplace protections.

Division 2 sets out the circumstances in which this Part applies.

Division 3 protects workplace rights, and the exercise of those rights.

Division 4 protects freedom of association and involvement in lawful industrial activities.

Division 5 provides other protections, including protection from discrimination.

Division 6 deals with sham arrangements.

Division 7 sets out rules for the purposes of establishing contraventions of this Part.

Division 8 deals with compliance. In most cases, a general protections dispute that involves dismissal will be dealt with by a court only if the dispute has not been resolved by the FWC.

The Objects of Part 3-1 are set out s.335:

335 Meanings of employee and employer

In this Part, employee and employer have their ordinary meanings.

Note: See also Division 2 of Part 6-4A (TCF contract outworkers taken to be employees in certain circumstances).

Section 365 of the Act provides:

365 Application for the FWC to deal with a dismissal dispute

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.

The Explanatory Memorandum states:

Clause 365 - Application for [FWC] to deal with a dispute

Clause 365 provides that a person who alleges that they have been dismissed in contravention of Part 3-1, may apply to [FWC] for a conference to attempt to settle the dispute.

An industrial association entitled to represent the industrial interests of the dismissed employee may also make an application to [FWC] under clause 365.

[6] In relation to the performance of functions by the Commission, sections 577 and 578 provide as follows:

577Performance of functions etc. by the FWC

The FWC must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations.

Note: The President also is responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581).

578 Matters the FWC must take into account in performing functions etc.

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

(a) the objects of this Act, and any objects of the part of this Act; and

(b) equity, good conscience and the merits of the matter; and

(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

[7] Chapter 5, Part 5-1, Division 3, Subdivision A contains the following provisions in relation to applications to the FWC:

585 Applications in accordance with procedural rules

An application to the FWC must be in accordance with the procedural rules (if any) relating to applications of that kind.

Note 1: Certain provisions might impose additional requirements in relation to particular kinds of applications (see for example subsection 185(2)).

Note 2: The FWC may, under section 587, dismiss an application that is not made in accordance with the procedural rules.

586 Correcting and amending applications and documents etc.

The FWC may:

(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or

(b) waive an irregularity in the form or manner in which an application is made to the FWC.

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[8] In relation to applications under Part 3-1 of the Act, Rule 23 of the Fair Work Commission Rules 2013 (the Rules) provides:

23 Two or more applications concerning the same or substantially similar conduct

(1) Subrule (2) applies if:

(a) 2 or more unfair dismissal applications; or
(b) 2 or more general protections applications; or
(c) 2 or more unlawful termination FWC applications;

are lodged at the same time in respect of the same respondent.

(2) The respondent may, despite rules 19, 21 and 22, lodge one response in respect of the applications if:

(a) the applications allege the same or substantially similar conduct; and
(b) the substance of the respondent’s response is substantially the same for each application.

SUBMISSIONS

Anglo Coal

[9] Anglo Coal submits that s.587 provides that the Commission may dismiss an application when it is not made in accordance with the Act. This is distinct from a question such as whether a dismissal occurred, and unlike the circumstances dealt with in Hewitt v Topero Nominees 1and Dean-Villalobos v QGC Limited2the Commission is expressly authorised and empowered to determine whether an application has been properly made under the Act.

[10] While s.365 of the Act does not expressly require that an application cover the dismissal of only one employee, the section does not expressly allow an application to cover multiple dismissals. There is also nothing in the Explanatory Memorandum to indicate an application can cover multiple dismissals and on their face, the words in s.365 and the Explanatory Memorandum suggest that an application is to be made for each individual employee who is dismissed.

[11] While s.23 of the Acts Interpretation Act 1901 provides that references to words in legislation in the singular include the plural, this provision is subject to any contrary intention in the legislation being interpreted. If s.365 is read so that the singular term “person” is read as “persons” and “dispute” is read as “disputes” the section still does not authorise multiple employee dismissals to be included in a single application.

[12] Anglo Coal also points to the fact that the Rules contain a specific provision allowing a single form F8A response to multiple applications relating to substantially similar conduct. This is said to suggest that the Rules envisage multiple general protections applications being made arising out of the same conduct. There is no corresponding provision in the Rules allowing a single application to be made in relation to general protections claims in respect of dismissals resulting from substantially similar conduct. If it was intended that a general protections application could cover multiple dismissals the Rules would contain a specific provision allowing for this such as those found in other jurisdictions where there are rules allowing persons with the same interest to start and continue proceedings. The absence of an analogous provision in the Act or the Rules indicates that such an application was not intended under s.365.

[13] In relation to applications cited by the CFMEU where industrial associations have applied for civil penalties under s.540 of the Act, it is not apparent whether one or multiple applications were made to the Commission in relation to these matters. That the applications may have been heard together by the Federal Court is a separate issue to whether a single application can be made to the FWC.

[14] Anglo Coal also points to the fact that in contrast to the CFMEU’s interpretation of s.365, applications for unfair dismissal under s.394 of the Act do not cover multiple employee dismissals. For example the decision in Howarth v Ulan Coal Mines Limited  3related to multiple dismissals as a result of workplace restructure, and although there was one hearing and one decision released by the Commission, each individual employee brought a separate application with respect to their dismissals.

[15] Anglo Coal also submits that there are practical and policy reasons why s.365 should be interpreted so that a single application under the section cannot cover multiple dismissals:

● each dismissal has its own factual nuances;
● an employee’s dismissal is individual to the particular employee;
● multiple employees in a single application creates complexities in how the matter will be conducted.

[16] Anglo further submits that the requirement for the Commission to conciliate a general protections dispute involving dismissal indicates a legislative intention to provide the parties with an effective opportunity to settle or otherwise resolve the matter. An application covering multiple employee dismissals inhibits this process and creates difficulties for the employer to validly assess its potential liability in respect of each individual dismissal and frustrates the ability of the Commission to advise the parties of the prospects of success. Section 370 of the Act requires the Commission to assess whether an application has reasonable prospects of success and the Commission cannot perform this function effectively when each dismissal and alleged contravention will have different factual circumstances, its own considerations and potentially different legal defences.

[17] Different considerations and consequences will apply with respect to each employee as against the remaining employees. Reference was made to the judgment of Justice Gibbs in Re Pepper and Another 4 where his Honour held that a single petition covering two debtors, in circumstances where they had separate debts would be inconvenient and potentially an abuse of process. His Honour also held that s.23 of the Acts Interpretation Act 1901 did not apply as this would give the provision “an undesirable width”.5

[18] Anglo Coal contends that s.365 of the Act should not be interpreted to allow dismissals of different employees to be covered in a single application, given that:

● inherently individual nature of a dismissal;
● different factual circumstances that may relate to each individual dismissal;
● different considerations that may apply in relation to resolving or defending each dismissal, each of which may constitute a separate contravention of the Act.

[19] Anglo Coal also contends that when its Form F8A Response to the application brought discrepancies with the list of employees to the attention of the CFMEU, the Union requested information in relation to the employees who were made voluntarily redundant. Anglo Coal did not provide this information and maintains that this is an indication that the CFMEU is not fully aware of the identity of the persons involved in the alleged contraventions of the Act and the circumstances of the dismissals and does not have the authority of at least a portion of the employees allegedly dismissed. While there is no requirement for the CFMEU to be specifically authorised to bring the application, there is an implied requirement in s.365 that an industrial association making an application must be instructed by or at least have the consent of each employee it seeks to represent.

[20] Anglo Coal contends that if the Commission determines that a single application covering multiple employees cannot be made, it has discretion under s.587(1) of the Act to dismiss the application. The Commission should exercise that discretion given the problems that will arise in relation to:

● Anglo Coal addressing each alleged contravention;
● Anglo Coal assessing its liability in respect of each employee and the potential to settle the matter;
● The Commission attempting to help resolve the matter or otherwise assessing whether there are reasonable prospects of success with respect to each contravention; and
● The CFMEU in potentially seeking a remedy which may alter the legal rights of employees without their authority.

[21] The CFMEU’s submission that if the Commission finds that a single application cannot be made, it should waive the requirement and treat every application as having been made separately in respect of each and every employee should be rejected. In this regard Anglo Coal contends that the Commission’s discretion under s.587 is limited to dismissing an application and to the extent the CFMEU is relying on the power in s.586 to correct an application or waive an irregularity, that power does not extend to filing new applications on behalf of employees or treating the application as multiple applications. Further, the Commission should not exercise its discretion given that at the time the application was made, the CFMEU was not aware of the identity of employees involved in the alleged contraventions and the circumstances of each dismissal and there was at least a portion of employees who had not authorised the CFMEU to make the application on their behalf or who were otherwise not aware of the application.

CFMEU

[22] The CFMEU submits that it is not uncommon for legislative provisions to be drafted in the singular. Under s.23 of the Acts Interpretation Act 1901 the singular is taken to include the plural and in this case there is no reason not to read “person” as including “persons”. It is common practice in the Federal Court and Federal Circuit Court for one application to be commenced in respect of multiple contraventions affecting multiple employees. In this regard the CFMEU referred to three cases where the Federal Court dealt with applications relating to general protections provisions in circumstances where a single application dealt with more than one person: LHMU v Arnotts Biscuits Limited 6; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd 7; and Australian Licenced Aircraft Engineers Association v Sunstate Airlines (Qld) Pty Ltd. 8

[23] There are no authorities to support the position contended for by Anglo Coal. Given the overriding principles for the performance of the Commission’s functions, set out in s.577 of the Act, there is no reason why an industrial association has to bring a separate application for each individual employee.

[24] The jurisdictional objection is also founded in the argument that several employees accepted voluntary redundancies and therefore were not dismissed. It is for the CFMEU to prove at trial (should the matter proceed to trial) that the employees were dismissed. It is not an issue that should be determined by the Commission at this stage in the proceedings.

[25] In the event that the Commission considers that one application should not have been made, it is submitted that the Commission should waive the irregularity pursuant to s.586 of the Act and treat the application as having been made separately for each employee.

CONCLUSIONS

[26] I do not accept the contention of Anglo Coal that a single application covering multiple persons cannot be made under s.365 of the Act. That provision neither expressly allows nor expressly prohibits a single application covering more than one person. It is also the case that the Explanatory Memorandum does not deal explicitly with the question of whether an application can be made in that form.

[27] However, s.365 of the Act is concerned with applications for the Commission to deal with a dismissal dispute. As the Explanatory Memorandum makes clear, an application under s.365 is an application for the Commission to conduct a conference to attempt to settle the dispute. The Commission is not required to be satisfied that a person who makes an application under s.365 has been dismissed, before dealing with the dispute. Further, the question of remedy is subject to a further application to the Court.

[28] This can be contrasted with an application for an unfair dismissal remedy under s.394 of the Act. Before dealing with such an application the Commission is required to be satisfied that the person making the application is an employee and has been dismissed. Further, the Commission is empowered to grant a remedy for an unfair dismissal in accordance with the provisions of the Act.

[29] In my view, a general protections application is analogous to an application for the Commission to deal with a dispute and not to an application for an unfair dismissal remedy. There is no reason why a single application cannot encompass multiple disputes, particularly when there is a common denominator - as there is in the present case - whereby each of the persons in dispute was employed by the same employer.

[30] In Dean-Villalobos v QGC Limited I noted that there is authority for the proposition that a broad view should be taken of the term “the dispute” in s.365. In Shea v TruEnergy Services Pty Ltd (No 1), 9 Justice Dodds-Streeton was considering whether that term limited a general protections Court application to the claims initially set out in the s.365 application made to the Commission. In holding that the dispute was not so limited, his Honour noted that:

● The dispute referred to in s.365 is not defined elsewhere in the legislation and is simply assumed to co-exist with a person’s dismissal allegedly in contravention of Part 3-1;

● Section 365 identifies “the dispute” at a high level of generality by reference to the occurrence of a person’s dismissal allegedly in contravention of Part 3-1;

● Section 365 does not expressly or implicitly provide that the dispute precisely corresponds with the Fair Work Australia application, but rather permits the application to be made to the Tribunal to deal with the dispute;

● The Application for FWA to deal with a General Protections Dispute - Fair Work Act 2009 - ss. 365, 372 is a short document setting out basic questions including “alleged contraventions of Part 3-1”, “sections allegedly contravened” and “description of alleged contravention”.

● In practice, the dispute identified in the general terms is likely to be further elaborated on or described not only in the application to Fair Work Australia but also in the respondent’s response (if any) and the conference conducted by the Tribunal to deal with the dispute.

● The introduction of words which narrow the meaning of “the dispute” would effectively expand the restriction imposed by s.371(1) on an applicant’s right to access the Court.

His Honour also said that:

“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.

So to hold would endorse a one-sided and temporally limited characterisation of the dispute comprising only the claims and contentions of the applicant set out in the FWA application. It not only excludes developments after the issue of the certificate, but takes no account of the respondent’s possible claims or the possible enlargement or alteration of either party’s claims in the FWA conference and conciliation process. ...

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”. 10

[31] Section 587 of the Act also makes it clear that the Commission’s power to dismiss an application under s.365 is limited. In this regard the Commission’s power under this section with respect to general protections applications is arguably limited to dismissing an application made outside the required time, on the basis that there are no exceptional circumstances to justify an extension. I do not accept that the present application is not made in accordance with the Act. The application is made in the required form. That it covers more than one person does not prevent the Commission from entertaining the application on the basis that it relates to a dispute about the dismissal of each of the persons named in it.

[32] In my view, to take the approach that the application in the present case is not validly made, would be to limit the scope of s.365 in a manner inconsistent with the Objects of part 3-1. Such an approach is also inconsistent with the terms of s.577 of the Act and the performance of the Commission’s functions with respect to general protections disputes in a fair and just manner that is quick, informal and avoids unnecessary technicalities. I am also of the view that to accept the arguments of Anglo Coal would, as Deputy President Gooley recently observed, be inflexible and unfair and elevate form over substance. 11

[33] On the face of the application, the named persons are in dispute with Anglo Coal in relation to their alleged dismissal in contravention of Part 3-1 of the Act. That the dispute is articulated in a single application does not prevent that dispute from being dealt with by the Commission in the manner provided for in the Act.

[34] I accept that there are logistical difficulties associated for Anglo Coal in responding to the dispute and for the Commission in conducting a conciliation conference. The application is poorly drafted and contains a number of typographical errors. The pleadings leave much to be desired. It is also the case that information about the commencement dates of persons said to be in dispute and listed in the Schedule to the application is still to be confirmed.

[35] It would be open to Anglo Coal to request more and better particulars in relation to the application before participating in a Conference. It is also probable that the issues identified by Anglo Coal will be clarified in the course of a conference in relation to the application.

[36] If I am wrong in relation to the views about the validity of the application, I would exercise the discretion in s.586 to allow the application to be amended on the basis that it would be treated as a separate application for each employee named in the Schedule to it. To do otherwise would be to deprive employees who wish to place their alleged dismissal in contravention of Part 3-1 in dispute, of the capacity to do so, given that the time in which such an application was required to be made has passed.

[37] I dismiss the jurisdictional objection to the application, and it will be listed for conciliation. An Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

 1   [2013] FWCFB 6321

 2   [2013] FWC 1537

 3   [2010] FWA 167

 4 (1969) 14 FLR 282.

 5   Ibid at 283.

 6 [2010] FCA 770 (23 July 2010)

 7 [2013] FCA 762 (2 August 2013)

 8 [2012] FCA 1222 (6 November 2012)

 9   [202] FCA 628.

 10   Shea v TruEnergy Services Pty Ltd (No 1) [2012] FCA 628 (15 June 2012) [77] - [78], [81].

 11   Hines v Independence Australia Pty Ltd [2014] FWC 4295.

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