Dr Linda Munjoma v Salvation Army (NSW) Property Trust as Trustee for the Social Work

[2013] FWC 3337

[2013] FWC 3337

FAIR WORK COMMISSION

DECISION

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

Dr Linda Munjoma
v
Salvation Army (NSW) Property Trust as Trustee for the Social Work
(C2013/4055)

VICE PRESIDENT HATCHER SYDNEY, 13 JUNE 2013

Application to deal with contraventions involving dismissal.

Introduction

[1] On 18 April 2013 Dr Linda Munjoma made an application to the Fair Work Commission under s.365 of the Fair Work Act 2009 (the Act) for it to deal with a dispute arising from her dismissal from her employment with the Salvation Army (NSW) Property Trust, as trustee for the Social Work (which I will refer to simply as “the respondent”). Dr Munjoma alleges that in dismissing her, the respondent contravened various provisions of Part 3-1 of the Act.

[2] The application was listed for a conference before me on 17 May 2013 (having earlier been the subject of another conference before another member of the Commission on 9 May 2013). Shortly after the commencement of the proceedings on that day and before the conference actually commenced, counsel for the respondent applied for Dr Munjoma’s application to be dismissed summarily on the basis that, because her employment with the respondent had been outside the geographical scope of operation of the Act, the Commission had no jurisdiction either to conduct a conference with respect to the matter under s.368 or to issue a certificate under s.369.

[3] Having heard the respondent’s submission in support of that application, I dismissed it on that day and indicated that I would issue written reasons for doing so at a later time. These are my reasons.

Relevant Facts

[4] The respondent did not seek to adduce any evidence in support of its summary dismissal application, but rather contended that the facts as stated in Dr Munjoma’s application were sufficient to demonstrate that the Commission had no jurisdiction with respect to her claim. Accordingly, it is necessary to summarise briefly the facts that may be gleaned from that application. It may be noted as this point that Dr Munjoma was not represented by a lawyer, and her application was apparently prepared by herself. It is comprised of the Form F8 “Application for FWA to Deal with a General Protections Dispute” which has been filled out, and a number of documents attached to the Form F8 which include copies of the letter of dismissal, a contract of employment dated 21 March 2013, the respondent’s “Organisational Code of Conduct”, a number of emails exchanged between Dr Munjoma and various persons employed by the respondent, and a four page document apparently prepared by Dr Munjoma entitled “My Own Account of Events”.

[5] The Form F8, which was filed on 18 April 2013, gives Dr Munjoma’s address as being in the suburb of Belmore in New South Wales, and gives the respondent’s address as being in Meadowbank in New South Wales. The industry of the respondent is described as humanitarian services. The employment is asserted to have commenced on 25 March 2013, with the date of dismissal being 8 April 2013. The application alleges that the dismissal was in contravention of ss.340 and 351 of the Act, and the contravention is described in the following terms:

“I complained and asked for clarification regarding my job then I got sacked for complaining”.

[6] Without traversing the more controversial matters asserted in the documents attached to the Form F8, the following facts relevant to the respondent’s strike-out application may be identified in those documents:

(1) The employment was for the position of Human Resources Consultant in Nauru. The function of the position was in support of the respondent’s mission in Nauru to “foster a living environment for transferees to support their physical, emotional, social and spiritual needs”. (“Transferees” is a reference to persons claiming refugee status who have been transferred to Nauru by the Australian Government for “offshore processing”). The respondent’s services were provided pursuant to a contract the respondent had entered into with the Australian Government (Department of Immigration and Citizenship).

(2) The employment was on a “fly-in/fly-out” basis, in that Dr Munjoma would be required to work on a cyclical roster under which she would be flown to Nauru to work for four weeks, and then flown back to Australia for two weeks off.

(3) The contract of employment provided that the employment was to commence on 25 March 2013 or from the first deployment date, whichever was the sooner, and would end on 1 February 2014 or until terminated in accordance with the contract.

(4) The contract of employment asserted that “Because your employment will be outside Australia, this position is not covered by the Fair Work Act.” However, the contract’s terms were stated to include the National Employment Standards in the Act “as if you were employed in Australia”.

(5) The contract specified Dr Munjoma’s salary and allowances as payable in Australian dollars.

(6) The contract of employment required Dr Munjoma to comply with certain specified provisions of the contract between it and the Australian Government. Dr Munjoma was also required by the contract to enter into a “Deed of Confidentiality and Non-Disclosure of Personal Information” in favour of the Department of Immigration and Citizenship.

(7) Dr Munjoma left Australia to fly to Nauru on 3 April 2013, and arrived there on 4 April. She underwent an induction on 5 April. On 7 April she was informed that she was to be dismissed, on instruction from a manager (Mr Litchfield) located in Australia. The respondent confirmed the dismissal in a letter dated 8 April. On 10 April Dr Munjoma flew out of Nauru, and she arrived back in Sydney on 11 April.

[7] Two other factual matters of significance may be identified. First, in an email attached to the Form F8 and dated 8 April 2013, Dr Munjoma asserts that she is an Australian citizen. Second, although the copy of the contract of employment attached to the Form F8 does not bear any signatures of the parties, counsel for the respondent accepted for the purpose of his submissions that the contract was in fact executed in Australia prior to Dr Munjoma’s departure for Nauru.

The Statutory Scheme

[8] Subdivision A of Division 8 of Part 3-1 of the Act (the Subdivision) establishes a scheme whereby persons who allege a dismissal in contravention of one or more of the prohibitions contained in Part 3-1 may apply to the Commission for it to conduct a dispute resolution process. Sections 365-371 of the Subdivision provide as follows:

365 Application for the FWC to deal with a 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.

366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

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

(d) the merits of the application; and

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

367 Application fees

(1) The application must be accompanied by any fee prescribed by the regulations.

(2) The regulations may prescribe:

(a) a fee for making an application to the FWC under section 365; and

(b) a method for indexing the fee; and

(c) the circumstances in which all or part of the fee may be waived or refunded.

368 Conferences

(1) If an application is made under section 365, the FWC must conduct a conference to deal with the dispute.

Note 1: For conferences, see section 592.

Note 2: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that the FWC might make is that an application be made under Part 3-2 (which deals with unfair dismissal) in relation to the dispute.

(2) Despite subsection 592(3), the FWC must conduct the conference in private.

369 Certificate if dispute not resolved

If the FWC is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, the FWC must issue a certificate to that effect.

370 Advice on general protections court application

(1) If the FWC considers, taking into account all the materials before it, that a general protections court application in relation to the dispute would not have a reasonable prospect of success, it must advise the parties accordingly.

(2) A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.

371 General protections court applications

FWC conference to be held before application

(1) A person who is entitled to apply under section 365 to the FWC for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:

(a) the FWC has issued a certificate under section 369 in relation to the dispute; or

(b) the general protections court application includes an application for an interim injunction.

Time for application

(2) Despite section 544, a general protections court application that requires a certificate under section 369 must be made within 14 days after the certificate is issued, or within such period as a court allows on an application made during or after those 14 days.

Note: In Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.

[9] Section 587 identifies expressly general powers by which the Commission may dismiss an application before it:

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.

The respondent’s submissions

[10] The respondent submitted, in summary, that:

(1) Dr Munjoma was not entitled to make an application under s.365 of the Act, because Part 3-1 did not apply in a geographical sense to her employment with the respondent. Given that her employment duties were to be performed entirely in Nauru, wholly outside Australia and its external territories, she was not an “Australian-based” employee as that expression is defined in s.35(2) because she fell within the exclusion from that definition in s.35(3).

(2) The reference to a “person” in s.365 connotes a person to whose (former) employment Part 3-1 applies. Dr Munjoma was not a “person” capable of making an application under s.365, and her application was therefore incompetent.

(3) The Commission was required to satisfy itself that Part 3-1 of the Act applied to Dr Munjoma’s former employment before it proceeded to conduct a conference under s.368 or issue a certificate under s.369. There was no jurisdiction to take either step if Dr Munjoma was not a “person” entitled to make an application under s.365.

(4) The Commission had power under s.587(1)(a) to dismiss Dr Munjoma’s application on the basis that it was not made in accordance with the Act.

Is the geographical application of the Act a jurisdictional prerequisite?

[11] It was an essential component of the respondent’s submissions that it was necessary for me to determine whether Part 3-1 of the Act had any geographical application to Dr Munjoma’s employment, because this was a matter which went to her entitlement to make an application under s.365. It is necessary at the outset to consider whether this contention is correct.

[12] Before turning directly to an analysis of the provisions of the Act relevant to the respondent’s submission in this respect, it is useful to explore the consequences that might flow from the respondent’s submission if I adopted it. It is well established that where the adoption of a particular interpretation of a statutory provision leads to results in the operation of the statute which are inconvenient, improbable, absurd or extraordinary, that is a ground for concluding that that interpretation does not conform to the intention of the legislature and that another reasonably available interpretation is to be preferred. 1 In this case, it is apparent that the consequences of adoption of the respondent’s submission would lead to results that may at least be characterised as troubling if not improbable.

[13] Proceeding on the hypothesis that it is accepted that there is power to dismiss Dr Munjoma’s application without issuing a certificate under s.369 of the Act on the basis that she is not entitled to make an application under s.365, I would then have to consider the merits of the respondent’s submission that Dr Munjoma’s employment was beyond the geographical scope of the Act. If I accepted that submission, it would (extending the hypothesis further) involve the making of a positive finding that Dr Munjoma is not entitled to make a s.365 application and require the dismissal of her application without issuing a s.365 certificate.

[14] What might then happen? There would, prima facie, be no bar to Dr Munjoma making a general protections application to the Federal Court or the Federal Circuit Court seeking remedial orders under Part 4-1 of the Act. This is for two reasons. Firstly, the prohibition in s.371(1)(a) against making a general protections court application without a s.369 certificate applies only to “a person who is entitled to apply under section 365 to the FWC for the FWC to deal with a dispute”. The respondent, having asked for and obtained a finding from the Commission that Dr Munjoma was not entitled to apply under s.365, would presumably not then be able to rely upon s.371(1)(a) to defeat any general protections court application made by Dr Munjoma.

[15] Secondly, insofar as (on this hypothesis) there was a finding by the Commission that Dr Munjoma’s employment was outside the geographical application of the Act, that finding could not be conclusive for the purpose of any general protections court application. Part 3-1 of the Act, as s.336 discloses, has the object of protecting particular rights, namely workplace rights, freedom of association and freedom from workplace discrimination. Insofar as Part 3-1 imposes prohibitions on the infringement of these rights, the determination of a claim that any such prohibition has been contravened necessarily involves the adjudication of a dispute about rights and obligations arising from the operation of the law upon past events or conduct. This is “a classical instance of the exercise of judicial power”. 2 That is why, by item 11 of s.539(2) and ss.545 and 546, power to determine issues concerning compliance with and enforcement of rights under Part 3-1 is conferred upon the Federal Court of Australia and the Federal Circuit Court of Australia. In that context, a final and binding determination as to whether the rights protected by Part 3-1 applied to Dr Munjoma’s employment with the respondent could only be made by a relevant court. Assuming for present purposes in favour of the respondent that the Commission was empowered under the Act to make a decision concerning that jurisdictional issue, that decision could only amount to an expression of opinion as a step in arriving towards the conclusion that a s.369 certificate should not be issued and that the s.365 application should be dismissed. That expression of opinion would not bind the parties, could not operate as a binding declaration of rights, and could not give rise to a cause of action or issue estoppel.3 Accordingly, Dr Munjoma would be entitled to contend before a relevant court, notwithstanding any opinion to the contrary emanating from this Commission, that Part 3-1 of the Act applied to her in her employment with the respondent. The respondent would presumably contend to the contrary, and the question would have to be determined by the Court.

[16] If one pauses at this point, it becomes apparent that adoption of the respondent’s submissions would have the result that, although it is not in issue that Dr Munjoma was dismissed from employment by the respondent and although it is clear that she alleges that that dismissal occurred in contravention of Part 3-2, she would be entitled to make a general protections court application and have that application heard by a relevant court without the dispute concerning her dismissal ever having been subject to a dispute resolution process conducted by this Commission and without a s.369 certificate ever having been issued. It seems improbable that this result could have been intended by the legislature, particularly when one has regard to the “Guide to this Part” (that is, Part 3-1) contained in s.334 of the Act, which states: “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 exception contemplated by the words “most cases” in the section would be a general protections court application which included an application for an interim injunction as referred to in s.371(1)(b) - not a case such as Dr Munjoma’s.

[17] Following the hypothesis further, more seriously improbable consequences may follow. If a relevant court hearing Dr Munjoma’s general protections court application determined, contrary to any prior opinion expressed by this Commission, that Part 3-1 did indeed apply to her employment with the respondent, then nonetheless her application would in all probability have to be dismissed forthwith at that point, regardless of its merits. This would be because the court’s determination would carry with it the necessary corollary that Dr Munjoma was a person entitled to make an application under s.365, and the fact that no s.369 certificate had been issued would mean that the s.371(1) prohibition would render her court application incompetent, excepting only if it contained an application for an interim injunction. That exception is more theoretical than real, since it is difficult to imagine what there would be to injunct in the case of an employee who had already been dismissed many weeks ago.

[18] That is highly unlikely to be a result intended by the legislature. It would mean that the Commission’s opinion concerning Dr Munjoma’s rights (or lack thereof) under Part 3-1, and any consequent decision not to issue a s.369 certificate, could operate to defeat any general protections court application concerning her dismissal which Dr Munjoma might subsequently choose to make, even if a court conferred with jurisdiction to conclusively determine questions of legal right under Part 3-1 took an opposite view of the matter. Indeed, bearing this potential consequence in mind, the interpretation of the statutory scheme advanced by the respondent, if correct, might well invite consideration of Chapter III of the Constitution.

[19] For these reasons, an alternative interpretation of the relevant statutory provisions which avoids the Commission effectively becoming a determiner of legal rights under Part 3-1 as a consequence of its statutory function under s.369 is to be preferred if reasonably available.

[20] I consider that such an alternative interpretation is available. Section 365 specifies two criteria for the making of an application by a person under that section: the person’s dismissal, and an allegation that the dismissal was in contravention of Part 3-1. There has been a division of opinion in decisions of single members of the Commission as to whether the first criterion of dismissal in s.365(a) is to be interpreted as requiring the Commission to satisfy itself that, as a matter of fact, a dismissal has occurred before it can deal with the dispute, or whether a contention by the applicant that a dismissal has occurred is sufficient 4. That issue does not arise here in a direct sense because the respondent does not dispute that it dismissed Dr Munjoma.

[21] As to the second criterion, an allegation that a dismissal has occurred in contravention of Part 3-1 will necessarily involve an elemental sub-allegation that the Part applied to the applicant’s employment in the first place. In other words, the contention that Part 3-1 applies in a geographical sense as well as in every other relevant sense to the relevant employment is necessarily part and parcel of the allegation that the dismissal occurred in contravention of the Part. There is no call to treat the issue of the geographical application of Part 3-1 as some separate and fundamental pre-condition for a valid s.365 application to be searched for elsewhere in the Act. It is encompassed by the second criterion for an application in s.365(b) on the ordinary meaning of the language there used.

[22] It follows that I do not accept the respondent’s submission that the word “person” in s.365 connotes a person to whose former employment Part 3-1 of the Act applies. “Person”, on its ordinary meaning, is a word of the widest generality. It is not subject to any special definition anywhere in the Act. Indeed, the word is used in various different contexts throughout the Act, and the sheer variety of those contexts tells against the proposition that in the specific context of s.365 “person” is to be given a special, non-ordinary meaning which in any other context of the Act would make no sense. The general rule is that where a word is used more than once in a statute it is presumed to have the same meaning unless there is reason to do otherwise. 5 Having regard to the terms of s.365(b) as earlier discussed, there is no reason to give “person” other than its ordinary meaning in the context of s.365.

[23] Indeed, the way in which the word “person” is used in three other instances in the Act tells positively against the interpretation which the respondent seeks to give to the word in s.365. Firstly, in s.31, a power is conferred for the making of regulations prescribing provisions of the Act as not applicable to “a person or entity in Australia” on the basis that there is not a sufficient connection between the person or entity and Australia. Section 31 falls within Pt 1-3 Div 3 of the Act, which is entitled “Geographical application of the Act”. The way in which the word “person” is used in s.31 shows that “person” includes an individual inside or outside of Australia (because of the addition of the qualification “in Australia”), and also an individual with an insufficient connection with Australia. It would be highly incongruous therefore to read “person” in s.365 as meaning only persons in Australia and/or with a sufficient connection with Australia.

[24] Secondly, in the context of the unfair dismissal regime in Part 3-2 of the Act, s.394 refers to a “person who has been dismissed” as being able to apply for an unfair dismissal remedy. The word “person” in that section does not connote a person to whom the unfair dismissal regime may apply, because there is a separate requirement in s.396(b) for the Commission to determine in a preliminary way whether the person was “protected from unfair dismissal” as that expression is defined in s.382, and a further requirement in s.385(a) for the Commission to determine whether the employee has been “dismissed” as defined in s.386. In short, the word “person” in s.394 bears its ordinary meaning, and is not to be read as loaded with the jurisdictional preconditions for access to unfair dismissal remedies, since those jurisdictional preconditions are specifically dealt with elsewhere. Again, it would be incongruous to read “person” in the expression “person [who] has been dismissed” in s.365(a) in a different way.

[25] Thirdly, in describing who may (with permission) appeal a decision of a single member or the General Manager of the Commission, s.604 refers to “a person aggrieved” rather than simply “a person”. This illustrates how the statute, when it wishes to qualify the ordinary meaning of “person”, uses additional language to do so.

[26] It may additionally be observed that the content and structure of the Subdivision tends against the proposition that s.365 is to be read as imposing jurisdictional pre-conditions beyond the mere filing of an application alleging dismissal in contravention of the Part about which the Commission must be satisfied before it can deal with an application lodged under that section. Leaving aside the determination of applications to extend time to apply under s.366, the Subdivision simply does not contemplate that the Commission would engage in any sort of determinative process in dealing with a s.365 application. Section 368(1) requires the Commission to conduct a conference to deal with the dispute identified in an application. Nothing in the provision indicates recognition of the possibility of an intermediate hearing concerning jurisdictional issues. This may be contrasted to the unfair dismissal regime which, as earlier identified, requires the Commission to decide whether the jurisdictional preconditions for access to an unfair dismissal remedy are satisfied before considering the merits of the application.

[27] There is a legislative note under s.368(1) which refers to the power of the Commission under s.595(2) in dealing with a dispute to mediate, conciliate, make a recommendation or express an opinion. That note is of course not part of the Act, but it does under s.15AB of the Act Interpretation Act 1901 constitute extrinsic material which may be taken into account, among other things, to confirm the ordinary meaning of a statutory provision read purposively in its context. I consider that the note confirms that s.595 on its ordinary meaning applies when the Commission deals with a s.365(1) application. That being the case, s.595(3) is of significance. It provides:

“(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expresslyauthorised to do so under or in accordance with another provision of this Act.”

[28] As s.595(3) makes clear express authorisation under a provision of the Act is required for the Commission to arbitrate a dispute, with arbitration taken to include the making of any orders considered appropriate. There is no such express authorisation in the Subdivision. It is difficult to avoid the conclusion that a process of determining whether or not Part 3-1 applied to an applicant’s former employment in a geographical sense (or indeed in any other sense) would involve an exercise very akin to an arbitration. That indicates that the occurrence of such a process was not intended by the legislature to occur.

[29] Section 370(1) requires that the Commission “advise the parties” if it considers on the basis of the material before it that a general protections court application in relation to the dispute would not have a reasonable prospect of success. Such advice in substance constitutes the expression of an opinion, something the Commission is authorised to do in dealing with a dispute by s.595(2). A court application which concerned a terminated employment relationship which was patently not one to which Part 3-1 applied (as the respondent contends is the case here) would have no reasonable prospect of success, but the Commission’s role nonetheless is only to provide advice. The s.365 application itself cannot be dismissed for the reason that it has no reasonable prospect of success, because this is prohibited by s.587(2)(b). Once the Commission is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, then under s.369 the Commission is required to issue a certificate to that effect. That requirement applies even if the Commission has formed the view that there is no reasonable prospect of success and has accordingly provided advice to the parties about that under s.369.

[30] Although in this particular case the respondent has disavowed the need to call any evidence in support of its jurisdictional objection, as a general proposition a hearing concerning whether a particular employment relationship is sufficiently connected to Australia such as to attract the operation of Part 3-1 might well involve an evidentiary contest. However, except perhaps in relation to an extension of time application, there is nothing in the Subdivision which contemplates the receipt of evidence by the Commission or a determination requiring findings of fact to be made. In Hetherington-Gregory
v Harrington Village Motel 6, a Full Bench considered whether an order for the production of documents in connection with a conference under s.776 of the Act should be made. Section 776 is part of the scheme of provisions in the Act concerning unlawful termination of employment in Part 6-4 Division 2 of the Act. That scheme, in ss.773-778, contains a procedure for the Commission to conduct a dispute resolution process in respect of any alleged unlawful termination of employment which is in all relevant respects identical to that for general protections matters in ss. 365-370. In refusing to make an order for the production of documents the Full Bench said:

“[8] The function of a Member of Fair Work Australia in conducting a s.776 conference is to facilitate a resolution of the claim reflected in the application through an agreement of the parties. A Fair Work Australia Member, in conducting a s.776 conference, is not empowered to determine the application or otherwise impose an outcome on the parties.

[9] The statutory requirements upon a Member in relation to a s.776 conference are:

• If satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, the Fair Work Australia Member must issue a certificate to that effect (s.777); and



• If the Member considers, taking into account all the materials before it, that an unlawful termination court application in relation to the dispute would not have a reasonable prospect of success, it must advise the parties accordingly (s.778).

[10] A s.776 conference does not involve the hearing of evidence or the undertaking of a hearing involving an assessment of the full evidentiary case which would arise in a hearing in the Federal Magistrates Court or the Federal Court of Australia. It is a conciliation process based on the (often limited) factual material raised by the parties.”

[31] The above characterisation of the Commission’s functions would apply with equal force to a s.368 conference. It is inconsistent with the proposition that the Act imposes jurisdictional preconditions on the making of a s.365 application of such a nature as might require the Commission in a conference (or indeed prior to a conference) to engage in a process of determination involving the making of findings of fact based on the receipt of contested evidence.

[32] To be clear, nothing I have said above is to be taken to suggest that in respect of s.365 applications the Commission does not as always have a “first duty” to satisfy itself that it has jurisdiction to conduct the s.368 conference. 7 Regardless of whether, as the respondent submits, s.587(1)(a) is the precise source of power to dismiss a matter for want of jurisdiction or not (and there are some indications that it is not), it is undoubtedly the case that the power exists. As was said by Smithers J in Deputy Commissioner of Patents v Board of Control of Michigan Technological University8:

“It is a generally accepted principle of statutory interpretation that courts, tribunals and the like possess, subject to correction, the necessary power to rule on the initial question whether they have power to entertain a particular application. If they decline jurisdiction by reason of some statutory provision that is a decision "under" that provision.”

[33] Rather, the above analysis militates against the proposition that s.365(1) is to be interpreted as imposing jurisdictional prerequisites of such a nature that the Commission might be required to hold a separate hearing, receive contested evidence, make a determination going at least in part to the merits of the allegation of contravention of Part 3-1, and potentially affect the applicant’s right to have his or her rights under Part 3-1 determined by a relevant court, simply in order to satisfy itself that it has jurisdiction to hold a conference under s.368. I do not accept therefore that the Commission needs to be satisfied that, in respect of an application under s.365(1) of the Act, the Commission needs to be satisfied that Part 3-1 applied geographically to the applicant’s former employment prior to holding a s.368 conference. It is sufficient that the Commission has before it an application that on its face alleges a dismissal in contravention of Part 3-1. Dr Munjoma’s application meets that description.

Is it manifest that the Act does not geographically apply?

[34] In any event, regardless of the conclusions I have just stated, I am unable to positively conclude on the materials currently before me that Part 3-1 of the Act did not geographically apply to Dr Munjoma’s employment with the applicant. As earlier stated, that respondent approached the matter on the basis that it was clear on the face of the application that Part 3-1 did not apply. The respondent’s approach in this respect was akin to an application for summary dismissal of a civil proceeding prior to the hearing of any evidence. That being the case, a rigorous approach is necessary, as was explained by the Full Bench in Marigene Larew Micheletto v Korowa Anglican Girls' School 9:

“[17] In civil litigation there are circumstances in which a no-case submission may be made at the outset of proceedings and before the plaintiff's evidence commences. The court has a discretion to dismiss an application before any evidence is heard on the basis of the pleadings and other material filed by the plaintiff. In General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others (General Steel), Barwick CJ accepted that "the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion."…

[18] It is apparent that a decision to dismiss an application before the plaintiff has put its case should be reached with extreme caution and only on the basis that the application is manifestly untenable or groundless.

[19] In our view the Commission may properly dismiss an application pursuant to s.170CE(1)(a) in response to a no-case submission made before the applicant has put its case. In considering such a submission the Commission should be guided by the principles in General Steel, that is, the decision should be taken with extreme caution and only on the basis that the application is manifestly untenable.”

[35] The respondent has not demonstrated that it is manifest that Dr Munjoma’s employment was beyond the geographical scope of Part 3-1 of the Act. Section 34(3) of the Act gives effect to regulations which prescribe extensions of the Act, or of specified provisions of the Act, beyond the outer limits of the exclusive economic zone and the continental shelf in respect of any “Australian employer” and any “Australian-based employee”. Regulation 1.15F(4) of the Fair Work Regulations 2009 extends Part 3-1 to such employers and employees.

[36] The expressions “Australian employer” and “Australian-based employee” are defined in s.35. The respondent accepts that it is an “Australian employer” within the meaning of that expression as set out in s.35(1). However, it contends that it is manifest that Dr Munjoma is not an “Australian-based employee” as that expression is defined in s.35(2) and (3). Those subsections provide:

“(2) An Australian-based employee is an employee:

(a) whose primary place of work is in Australia; or

(b) who is employed by an Australian employer (whether the employee is located in Australia or elsewhere); or

(c) who is prescribed by the regulations.

(3) However, paragraph (2)(b) does not apply to an employee who is engaged outside Australia and the external Territories to perform duties outside Australia and the external Territories.”

[37] Because the respondent accepted that it was an “Australian employer” as defined, it further accepted that Dr Munjoma fell within s.35(2)(b). However, it contended that the exclusion in s.35(3) operated so as to place Dr Munjoma outside the scope of the definition of “Australian-based employee” and thus beyond the geographical scope of operation of the Act.

[38] The exclusion in s.35(3) has two limbs, both of which must be satisfied in order for the exclusion to operate. The first is that the employee is “engaged outside Australia and the external Territories”. The second is that the engagement is to “perform duties outside Australia and the external Territories”. It is clear that the second limb applies, since Dr Munjoma’s duties under her contract of employment were to be performed primarily if not wholly in Nauru. The question therefore is whether it is manifest that the first limb also applies - that is, was Dr Munjoma “engaged” outside of Australia?

[39] The use of the word “engaged” in s.35(3) is ambiguous. As counsel for the respondent recognised, that word is in the context of an employment relationship capable of being understood to refer the “hiring” of the employee by way of the formation of the contract of employment. An argument to that effect was adverted to in Cohen v iSoft Group Pty Limited, but did not need to be determined. 10If that meaning is adopted, then the exclusion does not apply, because Dr Munjoma was recruited in Australia and her contract of employment was executed in Australia.

[40] Counsel for the respondent urged an alternative interpretation, namely that “engaged” referred to the performance of the employment, so that for the exclusion not to apply it was necessary for some element of the employment to be performed in Australia. He identified the relevant purpose of the definition of “Australian-based” employee in s.35(2), read with the exclusion in s.35(3) as being to include persons who perform part of their employment in Australia and part of it outside Australia, but to exclude persons whose employment is required to be performed wholly outside Australia. He further characterised an outcome whereby an employee who never works in Australia but signs a contract in Australia is an “Australian-based employee” covered by Part 3-1 of the Act as being “extraordinary” and contrary to both the ordinary and defined meanings of “Australian-based employee”.

[41] The respondent’s submission appears to find support, at least on a first reading of it, in a short passage in a recent Federal Court Full Court decision in Cohen v iSOFT Group Pty Limited (an appeal from the decision referred to in paragraph [39]above) 11:

“The primary judge’s conclusion was correct that Dr Cohen was not an Australian based employee within the meaning of the Fair Work Act. That was because he was excluded from the operation of that Act by s 35(3). Dr Cohen argued that he had had some duties to perform from time to time in Australia, and so he fell outside that exclusion. On the material in evidence, those duties, whatever they were, were not sufficiently significant to displace the ordinary and natural construction of s 35(3), that excludes from the operation of the Act overseas based employees who might perform no more than an insubstantial part of their duties in Australia.”

[42] At first blush, the above passage may be read as stating that s.35(3) is to be construed as excluding from the operation of the Act “overseas based employees who might perform no more than an insubstantial part of their duties in Australia”. However, read in the context of the proceedings as a whole, it is less clear. As the first instance decision disclosed, the relevant employment contract in that case had been executed in Singapore, and for that reason the trial judge found as follows (it being clear that the duties of the employee were performed substantially overseas): 12

“If “engaged” is a reference to the physical location where Dr Cohen executed the 2000 Agreement, as was the contention of Senior Counsel for the Respondents, the place of “engagement” was Singapore. Dr Cohen was thus a person who was “engaged outside Australia and the external Territories to perform duties outside Australia and the external Territories” within the meaning of and for the purposes of s 35(3).”

[43] Thus, even if “engaged” in s.35(3) referred to the formation of the employment contract, it was clear in the Cohen v iSOFT Group Pty Limited litigation that the first limb of the exclusion applied. The reasoning in the passage in the appeal decision quoted above may therefore only be responsive to an argument that the second limb of the exclusion did not apply because some minor employment duties were performed in Australia. If that is the case, then the passage above may only be concerned with the interpretation of that part of the exclusion concerning the performance of duties outside Australia. Additionally, the passage refers to “overseas based employees”, without explanation of the meaning of that expression (being probably unnecessary on the facts of that case).

[44] The respondent further relied on the following extracts from the explanatory memorandum for the Fair Work Bill 2009 (with the emphasis contained in the respondent’s written submissions reproduced):

“164. The Bill applies beyond the EEZ and the continental shelf within recognised limits under international law. In general terms, this means there must be a sufficient connection between the Bill and Australia in terms of geography or nationality of persons.

...

166. The regulations are able further to extend or modify the application of the Bill beyond the EEZ and continental shelf in relation to Australian employers and Australian-based employees (as defined in clause 35).

• For example, regulations could apply minimum terms and conditions of employment to Australian-based employees of Australian employers working overseas for a period or provide for the application of an enterprise agreement to those employees.

167. In making regulations, account will be taken of Australia's international law obligations. As with any extraterritorial application of law, the Bill's application is subject to the concurrent jurisdiction of other countries which also have sovereign rights in relation to areas within the scope of the Bill in which work is performed. Inconsistency may arise and, in these circumstances, it may not be possible to enforce the provisions of the Bill.

Clause 35 - Meanings of Australian employer and Australian-based employee

168. The definitions of Australian employer and Australian-based employee in clause 35 encompass employers and employees with a substantial connection to Australia, for the purpose of applying provisions of the Bill to certain ships, and to persons beyond the EEZ and the continental shelf.

169. The definition of Australian employer includes Australian trading and financial corporations (but not foreign corporations), the Commonwealth and Commonwealth authorities and bodies corporate incorporated in a Territory (each of which is also within the definition of national system employer). The definition of Australian employer also includes an employer that carries on an activity in Australia, in the EEZ or on or over the continental shelf and whose central management and control is in Australia (paragraph 35(1)(f)). This clause and any regulations extending the Bill's application beyond the EEZ and continental shelf to employers within this meaning is supported by paragraph 51(xxix) of the Constitution (the external affairs power).

170. The definition of Australian-based employee means an employee:

• whose primary place of work is in Australia or who is prescribed by the regulations (e.g., such regulations could clarify whether the primary place of work of a class of employees is in Australia); or



• who is employed by an Australian employer, whether the employee is in Australia or elsewhere (but under subclause 35(3) this does not include an employee engaged outside Australia and the external Territories to perform duties outside these places).”

[45] I do not find the respondent’s argument that the expression “engaged outside Australia and the external territories” refers to the performance rather than the formation of the employment persuasive. As earlier stated, the exclusion has two limbs. The second limb clearly refers to the purpose or function of the engagement of the employee as being to perform duties overseas. That is, it refers to the location where the employee’s obligations under the contract of employment are to be performed. That being the case, the first limb of the exclusion - “engaged outside Australia and the external Territories” - must have some separate and different work to do. The respondent’s approach does not give it any separate work to do; it takes the first limb as also referring to the location of the performance of duties under the employment contract also. On that approach, the second limb becomes unnecessary verbiage.

[46] An approach which has the first limb of the exclusion referring to the location of the formation of the employment contract gives it separate and distinct work to do. It conforms to the ordinary meaning of the word “engaged”. And because an employment relationship formed in Australia between an Australian employer and a person located in Australia at that time can be characterised as having a “substantial connection to Australia”, it conforms to the intention of the legislature as stated in paragraph 168 of the explanatory memorandum.

[47] Even if s.35(3) is interpreted in a way that requires a more substantial connection to Australia than just the formation of the employment relationship in Australia in order for the exclusion not to apply, it is difficult to conclude on the facts of Dr Munjoma’s case as asserted in her s.365 application other than that there was very substantial connection between her employment and Australia. Dr Munjoma is an Australian citizen. She was recruited by an Australian employer in Australia. According to her contract, her employment commenced on 25 March 2013 whilst Dr Munjoma was still in Australia. The operation in which Dr Munjoma was employed was carried on under contract with the Australian Government. Dr Munjoma was required to enter into a confidentiality deed in favour of the Australian Government. The “fly-in/fly-out” nature of the working arrangements meant that (had the employment continued) Dr Munjoma would have returned to Australia after every four weeks for a two week break, with the consequence presumably that she could maintain her primary place of residence in Australia. The manager who decided to dismiss her was located in Australia, from which it may be inferred that there was a degree of management control from within Australia. Dr Munjoma was paid in Australian currency (although I understand it to be the case that the Nauruan currency is the Australian dollar). If the extension of the geographic operation of the Act beyond Australia’s exclusive economic zone and the continental shelf effected by regulation 1.15F(4) was not intended to capture an employment relationship such as this, it is difficult to comprehend to what type of employment relationship the regulation was intended to apply.

[48] For these reasons, I could not be satisfied that on the face of Dr Munjoma’s application her case was manifestly untenable on the basis contended for by the respondent.

Conclusion

[49] After conducting a conference under s.368 of the Act with respect to Dr Munjoma’s application on 17 May 2013, I issued a certificate under s.369 on 21 May 2013 having been satisfied that all reasonable attempts to resolve the dispute had been or would be likely to be unsuccessful.

VICE PRESIDENT

Appearances:

L. Munjoma on her own behalf

M. Easton of counsel with E. Lathlean for the Respondent

Hearing details:

2013.

Sydney:

17, May.

 1   Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320-321 per Mason and Wilson JJ.

 2   Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 188.

 3   Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140 at 149; Miller v University of New South Wales (2003) 132 FCR 147 at [3]-[17] per Gray J.

 4   In favour of the former proposition: Lord v Worksafe Victoria [2012] FWA 4569; Boyar v The House of Life, [2011] FWA 7953; Jasevski v Australia Post[2010] FWA 9472; Tse v Ready Workforce Pty Ltd[2010] FWA 8751; in favour of the latter proposition: Dean - Villalobos v QGC Limited [2013] FWC 1537; Howie v Norilsk Nickel Pty Ltd and others [2012] FWA 2853; Lauren Hansen v Apex Cleaning & Polishing Supplies Pty Ltd [2011] FWA 1566.

 5   Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 at 618 per Mason J; Taikato v The Queen (1996) 186 CLR 454 at 461-2 per Brennan CJ, Toohey, McHugh and Gummow JJ.

 6   [2012] FWAFB 2104

 7   See R v Blakeley; Ex parte Association of Architects, &c., of Australia (1950) 82 CLR 54 per Latham CJ.

 8 (1980) 28 ALR 551 at 562

 9 [2003] AIRC 1391

 10 [2012] FCA 1071 at [165]

 11 [2013] FCAFC 49 at [54]

 12 [2012] FCA 1071 at [165]

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