Construction, Forestry, Mining and Energy Union v MPR Scaffolding Pty Ltd
[2017] FCCA 1593
•20 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v MPR SCAFFOLDING PTY LTD & ORS | [2017] FCCA 1593 |
| Catchwords: INDUSTRIAL LAW – Contravention proceedings brought pursuant to alleged breaches of obligations under an enterprise agreement – Respondents challenge the validity of the enterprise agreement and seek constitutional writs against the Fair Work Commission – previous challenge to the enterprise agreement failed and leave to appeal to the Full Bench of the Fair Work Commission not granted – possible use of evidence from Trade Union Royal Commission – preliminary question regarding the jurisdiction of this Court to grant the relief sought – distinction between “jurisdiction” and “power” discussed – use of “power” to grant relief, which is not limited, under s.15 of this Court’s primary legislation conditional on the Court having relevant jurisdiction conferred on it in this case under the Fair Work Act – jurisdiction found to exist but the exercise of any relief against the Fair Work Commission should be determined by the Federal Court – matter transferred to the Federal Court of Australia. |
| Legislation: Fair Work Act 2009 (Cth), ss.50, 345, 535, 536, 566, 567, 568 Second Reading Speech (Senate), Federal Magistrates Bill 1999, 20th October 1999 |
| Cases cited: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd & Anor (2015) 235 FCR 305 Bridges v Norling trading as IT Travel Forster [2016] FCCA 212 Re Keely & Anor; Ex parte Kingham & Anor (1995) 59 IR 176 NH v Director of Public Prosecutions; Jakaj v Director of Public Prosecutions; Zefi v Director of Public Prosecutions; Stakaj v Director of Public Prosecutions (2016) 90 ALJR 978; (2016) 334 ALR 191 M. Aronson, M. Groves, G. Weeks, Judicial Review of Administrative Action and Government Liability (Sixth Edition) (Sydney: Lawbook Company, 2017) |
| Applicant: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
| First Respondent: | MPR SCAFFOLDING PTY LTD |
| Second Respondent: | PETAR JOSIFOSKI |
| Third Respondent: | CLASSIC SCAFFOLDING PTY LTD |
| File Number: | CAG 44 of 2015 |
| Judgment of: | Judge Neville |
| Hearing date: | 9 December 2016 |
| Date of Last Submission: | 1 June 2017 |
| Delivered at: | Canberra |
| Delivered on: | 20 July 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Crawshaw SC |
| Solicitors for the Applicant: | Slater & Gordon, Sydney |
| Counsel for the Respondents: | Mr R Warren |
| Solicitors for the Respondents: | Meyer Vandenberg, Canberra |
ORDERS
The Final Hearing dates of 29, 30 and 31 August 2017 be vacated.
The matter be transferred to the Federal Court of Australia.
Determination of Separate Question
Question:Does the Federal Circuit Court of Australia have general jurisdiction to grant relief (including to issue writs, and in particular certorari) separate from specific, legislative grants of jurisdiction?
Answer:No.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 44 of 2015
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
Applicant
And
| MPR SCAFFOLDING PTY LTD |
First Respondent
| PETAR JOSIFOSKI |
Second Respondent
| CLASSIC SCAFFOLDING PTY LTD |
Third Respondent
REASONS FOR JUDGMENT
Introduction
There is one matter immediately before the Court that concerns the ambit of its jurisdiction. The parties have agreed that the jurisdictional issue in question may be determined on the basis of an agreed or assumed statement of facts and written submissions.
The question to be determined is whether this Court, absent a specific or express conferral of power to do so, may otherwise (e.g. pursuant to ss.10 and 15 of the Federal Circuit Court of Australia Act 1999 – “the FCCA Act”) issue a constitutional writ, and in particular the writ of certiorari.
The Applicant Union contends that there is no such jurisdiction. The Respondents contend that (in my words) either or both ss.10 and 15 of the FCCA Act give unfettered jurisdiction on this Court to grant the relief sought. As well, so the Respondents argue, ss.566 – 568 of the Fair Work Act 2009 (“the FW Act”) relevantly provides this Court with the requisite jurisdiction to grant appropriate relief in the current proceeding, including constitutional writs in accordance with the Court’s determination of the matters before it.
For the reasons that follow, in my view, in an appropriate case, the Court may grant, in accordance with ss.10, 14 and 15 of the FCCA Act, all relevant relief (as opposed to “jurisdiction”) necessary to determine all matters of controversy between the parties “completely and finally” (s.14 FCCA Act) including constitutional writs.[1] Further, in my view, the provenance of ss.566 – 568 of the FW Act plainly confer jurisdiction on this Court in relation to civil matters that arise under that legislation. With the Applicant having commenced contravention proceedings in this Court against the Respondents by way of Application and Statement of Claim, filed 3rd July 2015, plainly the Applicant Union had no doubt of the Court’s jurisdiction to deal with all matters arising under the FW Act in the proceeding.
[1] See also, more generally, s.10A of the FCCA Act, which provides for the General and Fair Work Divisions of this Court.
Also for the reasons that follow, ss.10, 14 and 15 of the FCCA Act do not, independently or otherwise, confer general jurisdiction on this Court. Jurisdiction in any particular matter must be specifically conferred by statute.
Procedural History
As already noted, the matter commenced with an Application and Statement of Claim being filed by the Applicant Union in July 2015. In general terms, the claims made by the Applicant arise out of an enterprise agreement that relevantly binds the First Respondent. It is pleaded that there have been various breaches of that Agreement that adversely affect workers employed by the First Respondent. The contraventions alleged are pleaded in relation to, among others, ss.50, 535 and 536 of the FW Act.
In its Response and Defence, filed 8th March 2016, the Respondents seek, among other relief, (a) a writ of certiorari to quash the decision of the Fair Work Commission by which it approved the MPR Scaffolding Pty Ltd/CFMEU Collective Agreement 2010-2012; (b) a declaration that the Applicant contravened s.345 of the FW Act; and (c) various penalties against the Applicant Union.
In the course of various procedural hearings, issues arose regarding the possibility/likelihood of using evidence given by certain persons employed by the Applicant Union to the Trade Union Royal Commission into Union Governance and Corruption (“TURC”). At one stage at least, a question arose regarding the applicability of certain sections of the Royal Commissions Act 1902. I understand that that issue involving the evidence before the TURC has now been resolved.
The matter was initially fixed for final hearing to commence on 7th December 2016 (it was listed for a three day trial). For reasons explained shortly, those trial dates were vacated by Orders made on 25th November 2016.
Further trial dates were fixed for May 2017, but it became necessary to vacate those trial dates also.
The primary reason for the Court’s decision to vacate the original trial was for the following reason, advanced primarily by the Applicant Union.
In January of this year, the Australian Building and Construction Commission (“the ABCC”) and the Applicant Union, and a significant number of its officials, were engaged in a two week trial before me in relation to a large number of alleged contraventions under the FW Act; an equally significant number of witnesses, many from the CFMEU, was involved. Only the evidence was taken during those two weeks. That matter returned before me in May of this year for oral submissions (detailed written submissions having already been provided by the parties).
The Applicant Union in this matter argued last November, in my view not unreasonably, that because of the proceedings against the Union and its officials brought by the ABCC, and given that I will have heard evidence from a number of Union officials in that matter who will also be giving evidence in the current MPR Scaffolding litigation, it would be more prudent to wait until the ABCC litigation had been concluded before proceeding with the current matter.
The present matter is currently listed for hearing in late August of this year.
Following an interlocutory hearing on 9th December 2016, primarily to deal with objections to evidence, a discussion developed between Senior Counsel for the Applicant, Counsel for the Respondents and the Bench in relation to the scope and content of the jurisdiction of the Court, as well as the Court’s powers, specifically in relation to the writ of certiorari as sought by the Respondents in relation to the Fair Work Commission’s decision, some six years or so ago, to approve the enterprise agreement between the parties. It is in relation to certain breaches of terms and conditions provided for in that agreement that gives rise to the current contravention proceeding before this Court.
It is sufficient for current purposes to note that a timetable was agreed for the filing of written submissions with a view to the Court making a determination, as a preliminary matter, regarding the jurisdiction of the Court to grant the constitutional relief sought by the Respondents in relation to the decision of the Fair Work Commission to approve the enterprise agreement to which I have referred. It should immediately be recorded that in making such determination, the Court would not be making any decision as to whether such relief would or should be granted in the present case.
As part of the timetable agreed upon, there was provision for the parties to provide the Court with an agreed or assumed statement of facts. Not unusually, there has been some difficulty in relation to the parties reaching agreement regarding the statement of facts. As it has transpired, both parties have each provided a statement of facts. There is agreement but for one sentence. The statement of facts by each of the parties is set out below. This is followed by the relevant statutory provisions from the FCCA Act and the FW Act.
Statements of “Assumed Facts”
The respective Statements of “assumed facts”, which were not filed until 1st June 2017, were as follows (the Applicant’s Statement first):
The Applicant and Respondents’ agree on the following assumed facts in relation to the jurisdictional issue only:
1. The Applicant caused the filing of the application for approval of the MPR Scaffolding Pty Ltd/CFMEU Collective Agreement (ACT) 2010-2012 (the Agreement) with Fair Work Australia and the Agreement was approved by Senior Deputy President Cartwright on 20 August 2010. Attached is the Decision of Senior Deputy President Cartwright approving the Agreement together with the signed Agreement approved by Senior Deputy President Cartwright.
2. Attached are the following documents that were before Senior Deputy President Cartwright at the time that he approved the Agreement:
(i) Application for Approval of Enterprise Agreement (Form F16);
(ii) Employer’s Declaration in Support of Application for Approval of Enterprise Agreement (Form F17);
(iii) Declaration of Employee Organisation in Support of Application for Approval of Enterprise Agreement (Form F18); and,
(iv) Notice for Employee Organisation to be Covered by Enterprise Agreement (Form F22).
3. The Respondent wants to adduce evidence that prior to the filing of the Agreement for approval:
a. No Notice of Employee Representational Rights was issued to the employees to be covered under the Agreement;
b. Copies of the Agreement were not provided to the employees;
c. Employees to be covered under the Agreement were not notified that a vote to approve the Agreement was to take place and nor were employees notified of any voting method in relation to the Agreement;
d. The terms and effect of the Agreement were not explained to the employees to be covered by the Agreement;
e. No vote by employees to be covered by the Agreement took place to approve the Agreement, nor were employees asked to demonstrate their genuine agreement to the Agreement in any other manner.
The Respondent’s Statement of Facts is as follows:
The Applicant and Respondents’ agree on the following assumed facts in relation to the jurisdictional issue only:
1. The Applicant caused the filing of the application for approval of the MPR Scaffolding Pty Ltd/CFMEU Collective Agreement (ACT) 2010-2012 (the Agreement) with Fair Work Australia and the Agreement was approved by Senior Deputy President Cartwright on 20 August 2010. Attached is the Decision of Senior Deputy President Cartwright approving the Agreement together with the signed Agreement approved by Senior Deputy President Cartwright.
2. Attached are the following documents that were before Senior Deputy President Cartwright at the time that he approved the Agreement:
(i) Application for Approval of Enterprise Agreement (Form F16);
(ii) Employer’s Declaration in Support of Application for Approval of Enterprise Agreement (Form F17);
(iii) Declaration of Employee Organisation in Support of Application for Approval of Enterprise Agreement (Form F18); and,
(iv) Notice for Employee Organisation to be Covered by Enterprise Agreement (Form F22).
3. Prior to the filing of the Agreement for approval:
a. No Notice of Employee Representational Rights was issued to the employees to be covered under the Agreement;
b. Copies of the Agreement were not provided to the employees;
c. Employees to be covered under the Agreement were not notified that a vote to approve the Agreement was to take place and nor were employees notified of any voting method in relation to the Agreement;
d. The terms and effect of the Agreement were not explained to the employees to be covered by the Agreement;
e. No vote by employees to be covered by the Agreement took place to approve the Agreement, nor were employees asked to demonstrate their genuine agreement to the Agreement in any other manner.
The Court sought clarification of the material difference between the parties’ respective Statements of Assumed Facts; the solicitor for the Respondent confirmed that the only material difference between the Applicant’s and Respondents’ Assumed Statement of Facts is in the wording of the beginning of paragraph 3.
I should also note that, for the purposes of these reasons, it is unnecessary that the documents referred to in the respective “Statements of Assumed Facts” actually be attached to these reasons. They will, of course, be directly relevant to determine the substantive contest between the parties in relation to the Respondent’s challenge to the Enterprise Agreement.
Statutory Provisions
Sections 10 of the FCCA Act is as follows:
10Original jurisdiction—general
(1) The Federal Circuit Court of Australia has such original jurisdiction as is vested in it by laws made by the Parliament:
(a) by express provision; or
(b) by the application of section 15C of the Acts Interpretation Act 1901 to a provision that, whether expressly or by implication, authorises a civil proceeding to be instituted in the Federal Circuit Court of Australia in relation to a matter.
(1A) The Federal Circuit Court of Australia also has such original jurisdiction as is vested in it by a legislative instrument made under section 10AA.
(2) The original jurisdiction of the Federal Circuit Court of Australia includes any jurisdiction vested in it to hear and determine appeals from decisions of persons, authorities or tribunals other than courts.
(3) The process of the Federal Circuit Court of Australia runs, and the judgments of the Federal Circuit Court of Australia have effect and may be executed, throughout Australia.
Sections 14 and 15 of the FCCA Act are as follows:
14Determination of matter completely and finally
In every matter before the Federal Circuit Court of Australia, the Federal Circuit Court of Australia must grant, either:
(a) absolutely; or
(b) on such terms and conditions as the Federal Circuit Court of Australia thinks just;
all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible:
(c) all matters in controversy between the parties may be completely and finally determined; and
(d) all multiplicity of proceedings concerning any of those matters may be avoided.
15Making of orders and issue of writs
The Federal Circuit Court of Australia has power, in relation to matters in which it has jurisdiction, to:
(a) make orders of such kinds, including interlocutory orders, as the Federal Circuit Court of Australia thinks appropriate; and
(b) issue, or direct the issue of, writs of such kinds as the Federal Circuit Court of Australia thinks appropriate.
Sections 566 – 568 of the FW Act are in the following terms:
Division 3—Jurisdiction and powers of the Federal Circuit Court
566 Conferring jurisdiction on the Federal Circuit Court
Jurisdiction is conferred on the Federal Circuit Court in relation to any civil matter arising under this Act.
567 Exercising jurisdiction in the Fair Work Division of the Federal Circuit Court
Jurisdiction conferred on the Federal Circuit Court under section 566 is to be exercised in the Fair Work Division of the Federal Circuit Court if:
(a) an application is made to the Federal Circuit Court under this Act; or
(b) an injunction is sought under section 15 of the Federal Circuit Court of Australia Act 1999 in relation to a matter arising under this Act; or
(c) a declaration is sought under section 16 of the Federal Circuit Court of Australia Act 1999 in relation to a matter arising under this Act; or
(d) proceedings in relation to a matter arising under this Act are transferred to the Federal Circuit Court from the Federal Court; or
(e) the High Court remits a matter arising under this Act to the Federal Circuit Court.
568 No limitation on Federal Circuit Court’s powers
To avoid doubt, nothing in this Act limits the Federal Circuit Court’s powers under section 14, 15 or 16 of the Federal Circuit Court of Australia Act 1999.
Submissions by the Applicant
The Applicant’s submissions, filed 10th February 2017, were as follows:
1. Much of the evidence that the respondents seeks [sic] to call could only be relevant to their claim that the Agreement was not validly approved by Fair Work Australia (‘FWA’) on the basis that certain requirements of the Fair Work Act 2009 (Cth) (‘FW Act’) were not complied with at the time of the approval of the Agreement in 2010. This proposed evidence should not be admitted as this claim cannot be pursued in these proceedings.
2. The Federal Circuit Court does not have jurisdiction to issue constitutional writs based on the occurrence of jurisdictional error, including a writ of certiorari.
3. Section 77 of the Commonwealth of Australia Constitution Act (‘Constitution’) gives the legislature the power to define the jurisdiction of the Federal Circuit Court.
4. The Respondents rely on s 15 of the Federal Circuit Court Act 1999 (Cth) as being a legislative grant of power to the Federal Circuit Court to issue a constitutional writ. However it is apparent that s 15 only gives power in relation to matters in which the Federal Circuit Court already has jurisdiction. Section 15 provides:
The Federal Circuit Court of Australia has power, in relation to matters in which it has jurisdiction, to:
(a) make orders of such kinds, including interlocutory orders, as the Federal Circuit Court of Australia thinks appropriate; and
(b) issue, or direct the issue of, writs of such kinds as the Federal Circuit Court of Australia thinks appropriate
5. This is by way of contrast with s 476(1) of the Migration Act 1958 (Cth) which provides:
Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution
6. Section 75(v) of the Constitution provides that:
In all matters –
...
(v) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth:
the High Court shall have original jurisdiction.
7. Therefore the jurisdiction given to this Court in migration matters to issue constitutional writs against an officer of the Commonwealth. is the original jurisdiction of the High Court under s 75(v) of the Constitution: see Singh v Minister for Immigration & Anor [2015] FCCA 509 at [476].
8. As a consequence of [sic] the respondents are not able to seek constitutional writs based on jurisdictional error in the Federal Circuit Court, it is submitted that it was not the legislative intention to allow a collateral attack to the validity of an order of Fair Work Australia based on jurisdictional error.
9. In any event, for other reasons it is not the intention of the FW Act to allow a collateral attack to the validity of the approval of the Agreement in any court. The collateral attack in the current case is on the approval of an enterprise agreement by FWA under Ch 2 Pt 2-4 Div 4 Subdivision B which was dependent on the satisfaction of FWA of various matters. In particular, pursuant to 186(2)(a) of the FW Act it was a matter for the FWA as to whether FWA was satisfied that the pre approval steps set out in s 188 of the FW Act had been met.
10. This is a case where the approval of the relevant authority was dependent upon its own satisfaction of the relevant circumstances. This is by way of contrast to cases where approval or consent depends on an objective jurisdictional fact. This distinction was recognised by the plurality of the High Court in Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135 at [33] and [34]:
However, taken as a whole, the text of s 35 does not suggest that the determination whether, upon the criteria specified in s 35, the responsible authority is or is not obliged to consent rests upon its own classification of the relevant circumstances. Rather, it indicates that it is not for the relevant authority itself to determine, as a matter of its opinion, whether the restriction imposed upon it by s 35(3) applies because the development is a “non-complying” development. Section 35(3) does not define the criterion of operation as the opinion of the relevant authority as to the classification of the development.
Had s 35(3) been expressed so as to turn upon the satisfaction or opinion of the relevant authority as to a state of affairs, or were it to be so understood, as Collex submitted, further questions would have arisen. In particular, the existence of the opinion or satisfaction would be treated as requiring an opinion or satisfaction formed reasonably upon the material before the decision-maker. But that is not what s35(3) involves. It stipulates in direct terms a precondition which obliges, without certain concurrences, refusal of a grant of consent.
(footnotes omitted)
11. In the same case, Gaudron J drew a similar distinction at [59]:
Once it is appreciated that it is the rule of law that requires the courts to grant whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise, it follows that there is very limited scope for the notion of “judicial deference” with respect to findings by an administrative body of jurisdictional facts. Of course, other considerations apply with respect to non-jurisdictional facts for there is no legal error involved if an administrative body simply makes a wrong finding of fact. And, again, different considerations apply where what is in issue is not a jurisdictional fact, but the decision-maker’s opinion as to the existence of that fact. In that situation, the question is whether, on the available material, it was reasonably open for the decision-maker to form the opinion in question.
(footnotes omitted)
12. Alternatively, a collateral challenge cannot be mounted by in any court by attacking the character or sufficiency of the evidence that was the basis for this satisfaction by the FWA. The judgments in Corporation of the City of Enfield v Development Assessment Commission cited above refer to any attack being based on the material before the administrative decision maker. This was also made clear in relation to the issue of a warrant by the High Court in Ousley v R [1997] HCA 49; (1997) 192 CLR 69.The judgments in that case were summarised by Young J (with whom Madgwick J and Siopis J agreed) in Von Arnim v Honourable Christopher Martin Ellison [2006] FCAFC 49 at [40] as follows:
In summary, all of the judgments in Ousley make it clear that a warrant can be challenged in collateral proceedings where the issue of the warrant did not comply with the statutory conditions governing its issue, and hence involved a jurisdictional error. I also consider that all of the judgments, including that of McHugh J, confirm that a collateral challenge cannot be mounted by attacking the character or sufficiency of the evidence that was placed before the court or officer who issued the warrant.
13. The proposed evidence of the respondents in this case seeks to attack the character or sufficiency of the evidence that was the basis for this satisfaction by the FWA.
14. This case is distinguishable from the case of Bridges v Norling trading as Itravel Forster [2016] FCCA 21 in which Manousaridis J found that a collateral attack could be made on the validity of a certificate issued pursuant to s.368(3)(a) of the FW Act. First, his Honour’s attention was not drawn to the absence of any jurisdiction to issue a constitutional writ.
15. Secondly, at [52] his Honour relied on the circumstance that under s 370 of the FW Act it is a precondition to the exercise of the Court’s jurisdiction that a certificate has been issued issued pursuant to s.368(3)(a) of the FW Act.
16. Thirdly, the issuing of the certificate was dependent on an objective jurisdictional fact rather than the satisfaction or opinion of the Fair Work Commission. As his Honour found at [53] [emphasis added]:
The FW Act does prescribe a number of preconditions to the FWC’s issuing of a certificate under s.368(3)(a): a person must have been dismissed from his or her employment; the person or an industrial association entitled to represent the person, must allege the person was dismissed in contravention of Part 3-1 of the FW Act; the person or industrial association may apply to the FWC for the FWC to “deal with the dispute”, but the person or industrial association must so apply within 21 days of the dismissal taking effect; if the person or industrial association does not so apply within 21 days of the dismissal taking effect, he or she (or the industrial association) must apply within such further period as the FWC may allow; the FWC may allow a further period for the person or industrial association to apply if the FWC is satisfied there are exceptional circumstances taking into account the matters specified in s.366(2); and if the person applied to the FWC within 21 days after the dismissal took effect or within any further period the FWC may have allowed, the FWC dealt with the dispute other than by arbitration. There is no doubt in my mind that all of these matters are jurisdictional facts; that is, facts that must exist independent of the FWC’s being satisfied that such facts exist.
(footnotes omitted)
17. Fourthly, his Honour recognised that the need to adduce substantial evidence if a collateral attack were allowed and the bypassing of protective mechanisms relating to judicial review might provide a discretionary reason for not allowing the collateral attack at [44]:
If, for example, the foreshadowed collateral challenge is not likely to involve the adducing of substantial evidence, and is not likely to by-pass protective mechanisms that would apply if the decision were to be challenged on judicial review, then it may be appropriate for the court to entertain the collateral challenge. If, on the other hand, the foreshadowed collateral challenge is likely to involve the adducing of substantial evidence and by-pass protective mechanisms, the court may decide not to entertain the collateral challenge.
18. This gives rise to a further alternative argument in the current case in which the respondents propose to adduce substantial evidence which will be challenged by the applicant. Moreover the collateral attack on the validity of the Agreement would bypass the protective mechanisms associated with judicial review proceedings in circumstances where there is substantial delay in challenging the relevant decision.
19. Even where there is jurisdiction to issue a constitutional writ, delay in seeking such a writ is a discretionary reason for refusing relief. Logan J summarised the legal position in Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union [2015] FCAFC 11 at [126]:
Further, even in the absence of a prescribed time limit, prohibition and certiorari are discretionary remedies and delay is always a relevant consideration in relation to whether to grant the relief sought: R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust.) Ltd [1949] HCA 33; (1949) 78 CLR 389 at 400; Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA16; (2002) 209 CLR 372 at 421-422; Ex parte Malouf; Re Gee; Ex parte Malouf; Re Gee [1943] NSWStRp 23; (1943) 43 SR (NSW) 195 at 201-202; R v Williams; ex parte Lewis [1992] 1 Qd R 643 at 658.
20. The claims in this case are based on evidence that is proposed to be called six years after the proceedings in the FWA. Moreover such evidence is contrary to the application of MPR and statutory declaration of Josifoski that was presented to FWA. It is readily apparent that because the events in question occurred more than six years ago that the applicant is prejudiced in terms of calling evidence in response to the proposed new evidence of the respondents.
21. Further, the respondents do not approach this proceeding with clean hands. The effect of the proposed new evidence of Josifoski is that he at all times knew that the facts which were the subject of his statutory declaration were wrong. The proposed challenge, based as it is on an allegation that the facts which formed the basis for the Agreement being approved were misleading, could have been brought by MPR at any time in the last six years.
As a general observation, in my view, paragraphs 8 and following in these submissions are clearly directed to the substantive issue of whether a writ should issue and reasons why that course should not be permitted, including for discretionary considerations, as opposed to addressing the only issue currently to be determined, namely, whether this Court has jurisdiction to issue a writ of certiorari in the current proceeding.
Further, although reference is made to “legislative intention” in these submissions, there is no discussion or reference to either (a) relevant authority regarding how a Court determines “legislative intention” (e.g. Project Blue Sky Inc v Australian Broadcasting Authority[2]), or (b) standard materials such as the Explanatory Memoranda (and or Second Reading Speeches) for any of the statutory provisions in question.
[2] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.
Submissions by the Respondent
The Respondent’s submissions, filed 10th February 2017, were as follows:
1. The Applicant has applied to the Federal Circuit Court of Australia (“the Court”) by way of a Statement of Claim seeking declarations and orders associated with the First Respondent’s employment of certain employees and the application of the MPR Scaffolding Pty Ltd/CFMEU Collective Agreement (2010-2012) (the Agreement).
2. It is not in issue between the parties that the Court has the jurisdiction, pursuant to s567 of the Fair Work Act 2009 (Cth), to hear and determine an application made under the Fair Work Act 2009 and to grant declaratory relief pursuant to s16 of the Federal Circuit Court Act 1999.
3. The First and Second Respondents have indicated to the Court a collateral challenge to the validity of the Agreement, on the basis that the Fair Work Commission did not have jurisdiction to approve the Agreement, as its making was not compliant with the provisions of the Fair Work Act 2009.
4. The Applicant now asserts that this Court does not have jurisdiction to grant writs, such as a writ of certiorari, and thus asserts that the Respondent’s collateral challenge must fail.
5. This Court has directed the parties to file written submissions on the issue of whether or not the Court has jurisdiction to grant a writ of certiorari. These submissions of the First and Second Respondent attend solely to the issue of the jurisdiction of the Court to grant such writs and do not attend to any issues of evidence which may be considered by the Court in its exercise of discretion as to whether or not it should grant such a writ. The Court would only exercise its discretion after it has heard and considered the evidence in the substantive case.
6. The Court is created in accordance with the terms of the Federal Circuit Court of Australia Act 1999 (“the Act”) and exercises its powers in accordance with the Act.
7. Section 10 of the Act grants original jurisdiction to the Court relevantly in the following terms:
“Original jurisdiction-general
(1) The Federal Circuit of Australia has such original jurisdiction as is vested in it by laws made by the Parliament:
(a) by express provision; …”
8. Section 10A of the Act is relevantly in the following terms:
“General and Fair Work Provisions of the Federal Circuit Court of Australia
(1) For the purpose of the organisation and conduct of business of the Federal Circuit Court of Australia, the Federal Circuit Court of Australia comprises 2 Divisions:
….(b) The Fair Work Division.
…
(3) The following jurisdiction of the Federal Circuit Court of Australia is to be exercised in the Fair Work Division:
(a) Jurisdiction that is required by any other Act to be exercised in the Fair Work Division;
(b) Jurisdiction that is incidental to such jurisdiction.
Note: Under s566 of the Fair Work Act 2009, jurisdiction is required to be exercised in the Fair Work Division of the Federal Circuit Court of Australia in relation to matters arising out of that Act.”
9. Section 566 of the Fair Work Act 2009 is the following terms:
“Conferring jurisdiction on the Federal Circuit Court
Jurisdiction is conferred on the Federal Circuit Court in relation to any civil matter arising under this Act.”
10. Section 567 of the Fair Work Act 2009 is relevantly in the following terms:
“Exercising jurisdiction in the Fair Work Division of the Federal Circuit Court
Jurisdiction conferred on the Federal Circuit Court under section 566 is to be exercised in the Fair Work Division of the Federal Circuit Court if:
(a) an application is made to the Federal Circuit Court under this Act;…”
11. Section 14 of the Act is in the following terms:
“Determination of matter completely and finally
In every matter before the Federal Circuit Court of Australia, the Federal Circuit Court of Australia must grant, either:
(a) absolutely; or
(b) on such terms and conditions as the Federal Circuit Court of Australia thinks just;
all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible:
(c) all matters in controversy between the parties may be completely and finally determined; and
(d) all multiplicity of proceedings concerning any of those matters may be avoided.”
12. Section 568 of the Fair Work Act 2009 expressly provides that no provision in the Fair Work Act limits the Federal Circuit Court’s powers under ss14, 15 or 16 of the Federal Circuit Court Act 1999. Indeed, one would find it difficult to find a provision of a statute with clearer language on the Courts’ powers than section 568 Fair Work Act as it simply states:
“No Limitation on Federal Circuit Courts Powers
To avoid doubt, nothing in this Act limits the Federal Circuit Courts powers under section 14, 15, 16 of the Federal Circuit Court of Australia Act 1999.”
13. Section 15 of the Act is in the following terms:
“Making of orders and issue of writs
The Federal Circuit Court of Australia has power, in relation to matters in which it has jurisdiction, to:
a) make orders of such kinds, including interlocutory orders, as the Federal Circuit Court of Australia things appropriate; and
b) issue, or direct the issue of, writs of such kinds as the Federal Circuit Court of Australia things appropriate.”
14. From the above legislative provisions it is clear that in these proceedings the Court is exercising its jurisdiction granted it under the Fair Work Act 2009, to hear an application bought under that Act and must do so in accordance with the jurisdiction granted it under the Federal Circuit Court of Australia Act 1999. The Federal Circuit Court of Australia Act 1999 has granted this Court the discretion to issue writs of a kind considered appropriate on the merits of the case presented. There are no statutory fetters placed on this Court as to the kind of writ it may direct or issue, if such fetters existed they would be expressed in the statute granting this Court its power. No such fetters are expressed in the Act binding upon this Court. Whilst the Applicant (in paragraph 8 of its Outline of Submissions) puts “that it was not the legislative intention to allow a collateral attack on the validity of an order of Fair Work Australia based on jurisdictional error”, the Applicant has pointed to no provision of the Fair Work Act 2009 or the Federal Circuit Court Act 1999 that supports that proposition. The question of whether or not a court should read additional words into a statute was considered by the High Court in Taylor v The Owners - Strata Plans No.11564 (2014) 253 CLR 531, where the majority held:
38. The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills "gaps disclosed in legislation “or makes an insertion which is "too big, or too much at variance with the language in fact used by the legislature”
39. ….. the task remains the construction of the words the legislature has enacted. In this respect it may not be sufficient that "the modified construction is reasonably open having regard to the statutory scheme” because any modified meaning must be consistent with the language in fact used by the legislature. (footnotes omitted)
15. Accordingly, the Applicant’s submissions seeking to impose limits on the jurisdiction of the court should be rejected.
16. In Bridges v Norling, Judge Manousaridis examined the jurisdiction of the Federal Circuit Court to entertain a collateral challenge to the validity of a certificate issued by the Fair Work Commission, the issuance of which was a statutory pre-condition to the Commission’s power to proceed with a dispute hearing. Judge Manousaridis found that it was a fundamental duty of a Court, in this case the Federal Circuit Court, to be satisfied that:
“… where a court’s jurisdiction is conditional on some valid Act or decision of an administrative tribunal, the Court has jurisdiction to determine whether such Act or decision has been made, and whether it has been made within the jurisdiction of the administrative tribunal.”
17. In this case, the First and Second Respondents seek to challenge whether the Fair Work Commission has validly made an industrial instrument, an industrial instrument which the Applicant seeks this Court to enforce. It is a proper exercise of this Court’s function to examine whether the industrial instrument has been validly made. The establishment of the validity of the industrial instrument is fundamental to this Court’s ability to perform the enforcement function sought by the Applicant.
18. Much of the Applicant’s submissions on the point of jurisdiction to grant certiorari appear, to stray into the area of whether or not this Court should exercise its discretion to grant the writ. The Court will only be in a position to exercise, or to refuse to exercise, its discretion with respect to the grant of a writ once it has heard the evidence put on this issue. It is the First and Second Respondents understanding that the Court here wishes the parties to address, and only to address, its jurisdiction to grant a writ.
19. The statutory provisions referred to above are clear and unambiguous. The Fair Work Act 2009 has not fettered this Court’s power to exercise its full jurisdiction to hear and determine whether a writ of certiorari be made.
20. The Federal Circuit Court Act 1999, is clear on its words and intent, that the Court has jurisdiction to issue such writs as it deems appropriate to meet the case before it. There is no authority of a superior court of record which has determined that the Federal Circuit Court does not have the power, nor cannot exercise such jurisdiction to issue such writ(s) as it deems appropriate in proceedings before it.
21. It will be a matter for this Court at hearing, to determine whether it will exercise its discretion to grant the relief sought by the Respondents. The Court ought to proceed to hear and determine the Respondent’s collateral application for a writ of certiorari in conjunction with the Applicant’s Statement of Claim.
Submissions in Reply by the Applicant
The Applicant filed Written Submissions in Reply on 27th March 2017. They were as follows:
1. Contrary to what is suggested by the submissions of the respondents at [4] and [18] the applicant’s submissions that the collateral challenge must fail are not based solely on the proposition that the Federal Circuit Court has no jurisdiction to issue a writ of certiorari.
2. That proposition is argued in the applicant’s outline of submissions at [3] to [8]. In relation to that proposition the applicant’s outline of submissions at [4] have already addressed the respondent’s submissions at [14] and [20] that s 15 of the Federal Circuit Court Act 1999 (Cth) is a legislative grant of power to the Federal Circuit Court to issue a constitutional writ. Section 15 only gives power in relation to matters in which the Federal Circuit Court already has jurisdiction.
3. However, the applicant’s outline of submissions additionally argues at [9] to [20] that, even if there is jurisdiction to issue a writ of certiorari, it is not the intention of the FW Act to allow a collateral attack on the validity of the approval of the Agreement in any court. These arguments are not arguments relating to discretion as suggested by the respondent’s submissions at [5] and [18]. This additional argument has consistently been raised by the applicant both in the original outline of submissions at [7] and in the applicant’s outline of submission on objections to affidavits of the respondents at [4] to [5].
4. The respondent’s submissions at [14] touch on the issue of statutory intention, albeit in the context of dealing with the jurisdiction to issue a writ of certiorari, by suggesting that the applicant’s submissions do not refer to any statutory provision. However, the applicant’s submissions at [9], in arguing that it is not the intention of the FW Act to allow a collateral attack on the approval of the Agreement in any court, rely specifically on the provisions of Ch 2 Pt 2-4 Div 4 Subdivision B of the FW Act which demonstrate that the FWA’s jurisdiction was dependent on the satisfaction of FWA of various matters.
5. In so far as the respondent’s submissions at [16] and [17] rely on [Bridges] [sic] v Norling, the applicant’s submissions at [14] to [18] distinguish that case from the present case.
Consideration & Disposition
In Project Blue Sky, at [69], the plurality (McHugh, Gummow, Kirby and Hayne JJ) said (internal citations omitted):
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole.”
Then at [78], their Honours said (internal citations omitted):
… the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.
Applying these principles to the construction of ss.10, 14 and 15 of the FCCA Act, as a general proposition, there are no express words of limitation within those sections such as to expressly limit the Court’s ability, using “all remedies”, to deal with “all matters of controversy between the parties completely and finally” (s.14 FCCA Act).
That said, s.15 refers specifically to “the power” of the Court to grant relief by making Orders and “to issue, or direct the issue of, writs of such kinds” as this Court considers appropriate. However, that section also refers, in my view as a condition precedent, to the Court granting such relief [only] “in relation to matters in which it has jurisdiction.”
To state the obvious: the distinction between “jurisdiction” referred to in s.10, on the one hand, and on the other hand, the “power” to make orders and to issue writs referred to in s.15, is crucial. The same general distinction was acknowledged and accepted by Judge Williams of this Court, in a different statutory context, in Tingley & Smart & Child Support Registrar, at [83] – [86].[3] Similarly, the Full Court of the Family Court took a similar view in Child Support Registrar & Vladimir & Anor, at [50] – [54].[4]
[3] Tingley & Smart & Child Support Registrar [2017] FCCA 471.
[4] Child Support Registrar & Vladimir & Anor (2017) 317 FLR 377.
Should any further support be necessary for the distinction between “jurisdiction” and “power”, I suggest that one need look no further than the High Court’s discussion in NH v Director of Public Prosecutions; Jakaj v Director of Public Prosecutions; Zefi v Director of Public Prosecutions; Stakaj v Director of Public Prosecutions,[5] (“NH v DPP”) where French CJ, Kiefel and Bell JJ said, at [67] – [68] (internal citations omitted; emphasis added):
[67] … As this Court said in Keramianakis v Regional Publishers Pty Ltd, the inherent jurisdiction is a power described generically as “the inherent power necessary to the effective exercise of the jurisdiction granted.” It is a power or collection of powers that comes with the status of the Supreme Court of a State as a superior court of record. Contrary to the submissions of the DPP, and the findings of the majority of the Full Court, inherent jurisdiction is not a “separate head of jurisdiction.” … the distinction between jurisdiction and power is of importance. As five Justices of this Court observed in PT Bayan Resources TBK v BCBC Singapore Pte Ltd:
‘Jurisdiction' is a word of many meanings. The term 'inherent jurisdiction' has been described as 'elusive', 'uncertain' and 'slippery'. The difficulty is minimised if the term is confined to its primary signification: to refer to the power inhering in a superior court of record administering law and equity to make orders of a particular description. For present purposes, inherent jurisdiction can be used interchangeably with 'inherent power'.” (footnotes omitted)
[68] Inherent jurisdiction understood not as authority to adjudicate, but as inherent power, may be deployed in the exercise of federal jurisdiction conferred on Supreme Courts pursuant to s 39(2) of the Judiciary Act or some other Commonwealth law. As Toohey J said in Harris v Caladine in a passage repeatedly quoted in this Court:
“The distinction between jurisdiction and power is often blurred, particularly in the context of 'inherent jurisdiction'. But the distinction may at times be important. Jurisdiction is the authority which a court has to decide the range of matters that can be litigated before it; in the exercise of that jurisdiction a court has powers expressly or impliedly conferred by the legislation governing the court and 'such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred'.” (citations omitted)
[5] NH v Director of Public Prosecutions; Jakaj v Director of Public Prosecutions; Zefi v Director of Public Prosecutions; Stakaj v Director of Public Prosecutions (2016) 90 ALJR 978; (2016) 334 ALR 191.
The purpose of the citation from NH v DPP is simply to highlight the critical distinction between “jurisdiction” and “power.” It is not to highlight anything to do with “inherent power”, particularly since this Court is an intermediate, and not a superior, Court.
The limitation, or “condition precedent” as I term it, in relation to the operation of s.15 of the FCCA Act accords with the comments in the Explanatory Memorandum which state in relation to s.15 that the section “gives the Court the power to make orders and issue writs, as appropriate, for matters in which it has jurisdiction.” (emphasis added) It also accords with the comments set out in the Second Reading Speech, which makes plain that the jurisdiction of the Court, from the outset, was confined to specific areas where jurisdiction was specifically conferred on the Court, thus:[6]
[6] Second Reading Speech (Senate), Federal Magistrates Bill 1999, 20th October 1999.
Its jurisdiction will be concurrent with that of the Family Court and the Federal Court—there will not be any jurisdiction which is solely that of the Federal Magistrates Service. Where more complex matters are filed in the Federal Magistrates Service, there will be provisions for enabling them to be transferred to the Federal or Family Court (whichever has jurisdiction). Similarly, there will be provisions for transfer from the superior courts to the Federal Magistrates Service of less complex matters within the Federal Magistrates Service's jurisdiction.
Looking first at jurisdiction in matters currently dealt with by the Federal Court, the Federal Magistrates Service will have jurisdiction to hear:
· applications under the Administrative Decisions (Judicial Review) Act 1977;
· appeals from the Administrative Appeals Tribunal which are transferred by the Federal Court to the Federal Magistrates Service;
· matters arising under the Bankruptcy Act 1966;
· applications under the Human Rights and Equal Opportunity Commission Act 1986, if and when the Human Rights Amendment Bill (No 1) 1998 is enacted;
· matters arising under Divisions 1 and 1A of Part V of the Trade Practices Act 1974, being the consumer protection provisions; and
· matters under s127 and Part XA of the Workplace Relations Act 1996.
All of this is to say that s.15 does not, of itself, confer jurisdiction on this Court. It only confers on the Court relevant power to grant relief but only once jurisdiction has been established. This necessarily means that one must look to other legislation, such as the FW Act, for the relevant and necessary conferral of jurisdiction before there can be any consideration of the exercise of the broad power conferred on the Court once jurisdiction is established.
The reality is that, in addition to the provisions of the FCCA Act to which I have referred, the Applicant commenced proceedings in this Court under the Fair Work Act. That Act specifically confers jurisdiction on this Court to deal with civil matters that arise under the provenance of that Act, pursuant to ss.566, 567 and 568 of the FW Act. I have set out earlier in these reasons that s.568 of the FW Act provides: “To avoid doubt, nothing in this Act limits the Federal Circuit Court’s powers under section 14, 15 or 16 of the Federal Circuit Court of Australia Act 1999.”
By seeking relief in relation to various alleged contraventions, the Applicant has properly and regularly invoked the jurisdiction of this Court under the FW Act. In its Response to that Application, the Respondents have properly and regularly sought relief from this Court both under the FW Act and otherwise. Having done so, subject to some further comments below, in my view, as a general proposition there is no jurisdictional impediment to this Court granting the relief sought by either the Applicant or the Respondents because of the conferral of jurisdiction on this Court under the FW Act and the relief sought by both parties under that legislation and otherwise.[7]
[7] For a general discussion regarding the granting of a writ of certiorari, among many places, see the Full Court’s comments (Wilcox CJ, Spender & Ryan JJ) in Re Keely & Anor; Ex parte Kingham & Anor (1995) 59 IR 176 at 194 – 200. More generally, see standard works such as M. Aronson, M. Groves, G. Weeks, Judicial Review of Administrative Action and Government Liability (Sixth Edition) (Sydney: Lawbook Company, 2017), and the comments by Hon W.M.C. Gummow, “The scope of section 75(v) of the Constitution: Why Injunction but no Certorari?” (2014) 42 Federal Law Review 241.
Briefly, I note the following further procedural matter.
In two recent decisions of the Full Court of the Federal Court of Australia, it was clearly determined that no constitutional writ (or other relief) could issue, directed to the Fair Work Commission (“the Commission”), in circumstances where the Commission was exercising its power pursuant to an enterprise agreement to conduct a private arbitration. When so acting, the members of the Commission were not amenable to any relevant constitutional writs or other relief, including certiorari.[8]
[8] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd & Anor (2015) 235 FCR 305 (Dowsett, Tracey & Katzmann JJ); Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (North, Jessup & Reeves JJ) (2016) 244 FCR 178; (2017) 338 ALR 574; (2016) 260 IR 23.
Among other things, the import and general provenance, if any, of these decisions in relation to the Respondents in the current matter seeking relief against the Commission (notably not in the context of private arbitration) is not a matter that this Court should properly entertain. Rather, such a contest, in my view, properly should be determined by a superior Court. Accordingly, the matter should be transferred to the Federal Court of Australia. I note that such a course is not opposed by the Respondents.[9]
[9] As at the date of publication of these reasons the Applicant has not indicated its view in relation to the matter being transferred to the Federal Court.
For completeness, I should also at least note the possible significance of the comments of Nettle J, sitting alone in the High Court, in Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate, especially at [22] – [23] and [35] the latter specifically in relation to the grant or certiorari, in relation to, among other things, appropriate procedural course(s) in relation to seeking constitutional writs.[10]
[10] Construction, Forestry, Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate (2016) 91 ALJR 1; (2016) 338 ALR 360; (2016) 261 IR 470.
To the degree necessary, and subject only to any further direction by the Federal Court, all previous procedural directions of this Court (and rulings in relation to objections to evidence) should remain, in which case, the matter should be immediately ready to proceed to final hearing, which is estimated to be no more than 3 days.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 20 July 2017
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