D&D Traffic Management Pty Ltd v Australian Workers' Union

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FEDERAL COURT OF AUSTRALIA

D&D Traffic Management Pty Ltd v The Australian Workers’ Union [2022] FCAFC 113

Review of:

D&D Traffic Management Pty Ltd [2021] FWC 1017

D&D Traffic Management Pty Ltd [2021] FWC 1287
File number: NSD 1008 of 2021
Judgment of: KATZMANN, THAWLEY AND GOODMAN JJ
Date of judgment: 8 July 2022
Catchwords:

ADMINISTRATIVE LAW – application for judicial review of decision of Fair Work Commission not to approve an enterprise agreement because Commission was not satisfied that it passed the “better off overall test” – whether Commission misconceived its statutory task or failed to carry it out because it misconstrued provisions of award against which enterprise agreement was to be compared – if so, whether jurisdictional error established – scope of review for jurisdictional error of decisions of Commission – where Full Bench had refused permission to appeal and decision of Full Bench not challenged, alleged errors not raised before Full Bench and in one central respect applicant’s case was inconsistent with way in which matter argued in Commission, whether application would have been refused in exercise of Court’s discretion – where Full Bench made no orders, whether open to applicant to challenge its decision

INDUSTRIAL LAW – whether cl 33.1 of Building and Construction General On-Site Award 2010 does not apply to casual employees – whether Commission erred in its construction of the definition of “shiftwork” in cl 34.2(a) of Award  
Legislation:

Federal Court of Australia Act 1976 (Cth) ss 21, 22

Fair Work Act 2009 (Cth) ss 186(2)(d), 193(1), 562, 563

Judiciary Act 1903 (Cth) s 39B

Building and Construction General On-Site Award 2010 cll 33.1, 34.2

Cases cited:

4 yearly review of modern awards – Construction awards [2019] FWCFB 8564

Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241

Avon DownsPty Ltd v Commissioner of Taxation [1949] HCA 26; 78 CLR 353

Buck v Bavone [1976] HCA 24; 135 CLR 110

City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194

Construction, Forestry, Mining and Energy Union v Wagstaff Piling Pty Ltd [2012] FCA 87; 203 FCR 371

Cook v Australian Postal Corporation [2017] FCA 509

D&D Traffic Management Pty Ltd [2021] FWCFB 4197

D’Amore v Independent Commission Against Corruption (2013) [2013] NSWCA 187; 303 ALR 242

Dafallah v Fair Work Commission [2014] FCA 328; 225 FCR 559

Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416

George A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498

King v Melbourne Vicentre Swimming Club Inc [2021] FCAFC 123; 308 IR 171

Metal Trades (Engineering) Board of Reference Appeal (1936) 36 CAR 534

Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992

Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332

Minister…

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Details
Case
[2022] FCAFC 113
Decision Date

CaseChat Overview and Summary

D&D Traffic Management Pty Ltd sought judicial review of a decision by the Fair Work Commission (FWC) not to approve an enterprise agreement, on the basis that the FWC was not satisfied that the agreement passed the "better off overall test". The FWC had refused permission to appeal, and D&D did not challenge that decision. D&D argued that the FWC misconceived its statutory task or failed to carry it out because it misconstrued provisions of the award against which the enterprise agreement was to be compared. D&D also argued that clause 33.1 of the Building and Construction General On-Site Award 2010 does not apply to casual employees and that the FWC erred in its construction of the definition of "shiftwork" in clause 34.2(a) of the Award.

The court found that D&D had failed to establish that the Deputy President misconstrued the 2010 Award. It concluded that even if such an error could have been one which established jurisdictional error, the application must be dismissed. The court noted that the case put to it was, in nearly all respects, not put to the FWC or the Full Bench. Furthermore, the case put to the court was inconsistent with the way the matter was argued before the FWC. The court found that it was not in the interests of the administration of justice for it to entertain an application for judicial review of a decision of the FWC on a basis which was inconsistent with the way in which an applicant conducted the case before the FWC. The court also found that it was not in the interests of the administration of justice for it on judicial review to call up and quash the decision of a Commissioner and in doing so reach conclusions which are in substance contrary to the decision-making of the Full Bench in its appellate jurisdiction under the Fair Work Act, unless it had also formed the view that the decision of the Full Bench was itself affected by error or there was some other compelling reason to do so.

The court found that the Full Bench explained the second reason for refusing permission to appeal at FB [25] in the following way: "Second, the Deputy President said in the first decision that he would approve the Agreement if D&D gave the ‘Undertaking 5’ referred to in the Altus decision. That undertaking, which we have set out above, would simply displace the definition of shiftwork in clause 8(c) of the Agreement with that in clause 34.2(a) of the [2010] Award. Giving this undertaking would have rectified the identified BOOT deficiency and allowed D&D to have its Agreement approved. It would also have allowed D&D to operate a shift work system consistent with clause 34.2(a) of the [2010] Award. D&D refused to give the undertaking, thus indicating that it was not prepared to have in its Agreement a shiftwork definition which was consistent with that in the [2010] Award. In that circumstance, we see no call to grant permission to appeal to engage in the exercise of construing clause 34.2(a) of the [2010] Award."

The court dismissed the application, finding that the FWC did not misconceive its statutory task or fail to carry it out and that there was no jurisdictional error. The application was dismissed with costs.

Orders

Orders of the court

1. The application be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It is not necessary to determine whether the definition is apt to cover a system of work in which operations are being continued by the employment of a group of employees of employer X upon work on which another group of employees of employer Y had been previously engaged. This construction was advanced before this Court but not before Deputy President Cross or the Full Bench and the answer to it was not shown to be material to the Commission’s decisions. Conclusion in relation to jurisdictional error D&D has failed to establish that Deputy President misconstrued the 2010 Award. It follows that, even if such an error could have been one which established jurisdictional error, the application must be dismissed.Discretionary matters Two further matters should be mentioned. First, a matter militating against relief being granted even if error had been established, is the fact that the case put to this Court was, in nearly all respects, not put to the Commission or the Full Bench. Further, although not frankly acknowledged, the case put to this Court was in one central respect inconsistent with the way the matter was argued before Deputy President Cross and contrary to an express concession which had been made to the Full Bench. It is not in the interests of the administration of justice for this Court to entertain an application for judicial review of a decision of the Commission on a basis which is inconsistent with the way in which an applicant conducted the case before the Commission. Judicial review involves an examination of the decision challenged and the process pursuant to which that decision was made. Judicial review is not the occasion to advance a new case. To a large extent, that is what the applicant has done here. Except in one respect, D&D’s case on this application was either not argued before the Commission or the Full Bench or inconsistent with the case put. That is both unsatisfactory and would be a discretionary reason for refusing relief. Senior Counsel for D&D submitted that, even if it did make the concession that cl 34.2 applied to its casual employees (which it plainly did), the Full Bench was bound to consider the question and address it. He submitted that the “Commission acts as a statutory gatekeeper to an agreement as between the parties; it is not performing an arbitral function”. According to D&D, neither the Commission nor the Full Bench was entitled to act upon what was common ground between the parties or a concession about the scope of a clause in an award. In all cases, D&D argued, it had to put the concession to one side and determine the matter for itself. This broad submission was made without reference to any authority. The effect of the submission is that the Commission is required to go behind each and every matter it is told is not an issue. The submission must be rejected. Secondly, D&D did not seek judicial review of the decision of the Full Bench. It is not in the interests of the administration of justice for this Court on judicial review to call up and quash the decision of a Commissioner and in doing so reach conclusions which are in substance contrary to the decision-making of the Full Bench in its appellate jurisdiction under the FW Act, unless this Court has also formed the view that the decision of the Full Bench is itself affected by error or there is some other compelling reason to do so: Dafallah v Fair Work Commission [2014] FCA 328; 225 FCR 559 at [54] to [56] (Mortimer J); Cook v Australian Postal Corporation [2017] FCA 509 at [67] (Katzmann J); Toma v Workforce Recruitment and Labour Services Pty Ltd [2020] FCA 1102 at [67] (Wigney J); Pal v Commonwealth of Australia [2020] FCA 1483 at [52] (Anderson J). As Mortimer J noted in Dafallah at [56] permitting an applicant to challenge decisions of a Commissioner on a basis which ignores a decision of the Full Bench would be to “permit an applicant in effect to circumvent the statutory appeal provisions and the limits Parliament has imposed by them”.

Ratio Decidendi

Legal Principle Established

The Full Bench explained the second reason at FB [25] in the following way:Second, the Deputy President said in the first decision that he would approve the Agreement if D&D gave the “Undertaking 5” referred to in the Altus decision. That undertaking, which we have set out above, would simply displace the definition of shiftwork in clause 8(c) of the Agreement with that in clause 34.2(a) of the [2010] Award. Giving this undertaking would have rectified the identified BOOT deficiency and allowed D&D to have its Agreement approved. It would also have allowed D&D to operate a shift work system consistent with clause 34.2(a) of the [2010] Award. D&D refused to give the undertaking, thus indicating that it was not prepared to have in its Agreement a shiftwork definition which was consistent with that in the [2010] Award. In that circumstance, we see no call to grant permission to appeal to engage in the exercise of construing clause 34.2(a) of the [2010] Award.CONSIDERATIONJurisdictional error generally It has been held, in relation to the Australian Industrial Relations Commission, that jurisdictional error may be established if that commission:·misconceived its role or duty or misunderstood the nature of its jurisdiction;·failed to apply itself to the question the statute required; or·misunderstood the nature of the opinion it was required to form (or the state of satisfaction it was required to reach).See Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 at [31] (Gleeson CJ, Gaudron and Hayne JJ), citing Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420 (Jordan CJ). As will be explained, this is not an exhaustive list of how jurisdictional error might be established in the industrial context. Indeed, an attempt at classification into categories can obfuscate the real task. The task on judicial review is to determine, on the grounds of judicial review advanced, whether the judicial review applicant has discharged the onus of showing that the decision under review was not made in accordance with the authority conferred by the relevant statute. In MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 at [29] and [30], Kiefel CJ, Gageler, Keane and Gleeson JJ explained (footnotes omitted):[29]The constitutionally entrenched jurisdiction of a court to engage in judicial review of the decision, where that jurisdiction is regularly invoked, is no more and no less than to ensure that the decision-maker stays within the limits of the decision-making authority conferred by the statute through declaration and enforcement of the law that sets those limits. To say that the decision is affected by jurisdictional error is to say no more and no less than that the decision-maker exceeded the limits of the decision-making authority conferred by the statute in making the decision. The decision for that reason lacks statutory force. Because the decision lacks statutory force, the decision is invalid without need for any court to have determined that the decision is invalid. [30]The statutory limits of the decision-making authority conferred by a statute are determined as an exercise in statutory interpretation informed by evolving common law principles of statutory interpretation. Non-compliance with an express or implied statutory condition of a conferral of statutory decision-making authority can, but need not, result in a decision that exceeds the limits of the decision-making authority conferred by statute. Whether, and if so in what circumstances, non-compliance results in a decision that exceeds the limits of the decision-making authority conferred by the statute is itself a question of statutory interpretation.