Faulkner v Tidewater Marine Australia Pty Ltd (No.2)
[2015] FCCA 2218
•28 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAULKNER v TIDEWATER MARINE AUSTRALIA PTY LTD (No.2) | [2015] FCCA 2218 |
| Catchwords: INDUSTRIAL LAW – Alleged contravention of general protection under the Fair Work Act 2009 (Cth) – preliminary issues – jurisdiction – discovery – amendment of relief to provide for interim injunction. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 341, 342, 365, 366(2), 369, 371, 372 Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 45 |
| Burrell v Reavill Farm Pty Ltd & Ors [2014] FCCA 1449; (2014) 286 FLR 310 Faulkner v Tidewater Marine Australia Pty Ltd [2013] FWC 2457 Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398; [1911] 17 ALR 285 Halls v KR & MA McCardle & Sons Pty Ltd & Ors [2014] FCCA 316 Newman v East Yarra Friendly Society Pty Ltd Trading As My Chemist Pharmacy [2011] FCA 1262 Pitrau v Barrick Mining Services Pty Ltd [2012] FMCA 186; (2012) 259 FLR 447; (2012) 219 IR 208 Poole v Rod Baker & Co [2011] FMCA 357; (2011) 207 IR 264 Re Boulton; Ex parte Construction, Forestry, Mining and Engineering Union (1998) 85 IR 468; (1998) 73 ALJR 129 Rentuza v Westside Auto Wholesale [2009] FMCA 1022; (2009) 236 FLR 231; (2009) 190 IR 207 Shea v TruEnergy Services Pty Ltd (No. 1) [2012] FCA 628; (2012) 204 FCR 456; (2012) 222 IR 156 |
| Applicant: | FRANK FAULKNER |
| Respondent: | TIDEWATER MARINE AUSTRALIA PTY LTD |
| File Number: | PEG 194 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 18 August 2014 |
| Date of Last Submission: | 18 August 2014 |
| Delivered at: | Perth |
| Delivered on: | 28 August 2015 |
REPRESENTATION
| For the Applicant: | Mr R L Hooker |
| Solicitors for the Applicant: | Friedman Lurie Singh & D'Angelo |
| Counsel for the Respondent: | Ms M G Saraceni |
| Solicitors for the Respondent: | Jarman McKenna |
ORDERS
The parties are ordered to confer with respect to any necessary declarations or orders arising from these Reasons for Judgment, and any future programming orders.
The matter is adjourned to a directions hearing at 11.00am on 4 September 2015.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 194 of 2013
| FRANK FAULKNER |
Applicant
And
| TIDEWATER MARINE AUSTRALIA PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
At the hearing of this matter a number of preliminary issues were raised which necessitated the adjournment of the hearing to enable the Court to determine the various preliminary issues raised. These Reasons for Judgment deal with those preliminary issues which were as follows:
a)most importantly, whether or not the Court had jurisdiction to deal with the claim, or various aspects of the claim;
b)whether leave to amend the claim to provide for interim injunctive relief is to be added, or to be granted; and
c)whether a declaration that discovery was in the interests of the administration of justice under s.45 of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) ought to be made,
as well as dealing with an application for leave to amend the defence, for which leave was granted at hearing.
Preliminary issue – discovery
The applicant raised an issue with respect to discovery, and foreshadowed that an application was to be made seeking a declaration under s.45 of the FCCA Act for discovery, either generally or with respect to specific documents, including documents referred to in affidavits for the respondent that have not been produced.
In respect of documents referred to in affidavits for the respondent that have not been produced, it is unnecessary to make a declaration with respect to discovery under s.45 of the FCCA Act, because of r.15.28(1) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) which provides that:
A document to be used in conjunction with an affidavit must be annexed to the affidavit.
A document referred to in an affidavit is arguably one “to be used in conjunction with an affidavit”, and if so, it is mandatory for it to be annexed to the affidavit, because of the use of the phrase “must be” in the longer phrase “must be annexed to the affidavit”. In this context, “must” ordinarily imports a mandatory requirement: see Pitrau v Barrick Mining Services Pty Ltd [2012] FMCA 186; (2012) 259 FLR 447; (2012) 219 IR 208 at [23]-[28] per Lucev FM (“Pitrau”) (and the High Court, Full Court of the Federal Court, South Australian Supreme Court and Federal Magistrates Court of Australia cases there referred to), save where, in respect of court rules, compliance may be dispensed with: Burrell v Reavill Farm Pty Ltd & Ors [2014] FCCA 1449; (2014) 286 FLR 310.
Whilst the matter was not argued to finality in these proceedings because of the jurisdictional issue referred to below, the provisions of r.15.28(1) of the FCC Rules might, in whole or part, assist with the resolution of the preliminary issue concerning discovery, without the need for, or with the need for less, further intervention by the Court.
Preliminary issue – jurisdiction
A preliminary issue arises with respect to jurisdiction of the Court to deal with the applicant’s claim. It is necessary to resolve the jurisdictional issue at the outset, as it will impact upon the evidence to be led and the relief which may be obtained. The jurisdictional issue having been raised it ought to be dealt with in any event: it is the Court’s first duty to be satisfied that it has jurisdiction to deal with the subject matter of the proceedings: Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398; [1911] 17 ALR 285; CLR at 415 per Griffith CJ, 428 per Barton J and 454 per Issacs J; Re Boulton; Ex parte Construction, Forestry, Mining and Engineering Union (1998) 85 IR 468; (1998) 73 ALJR 129 at 133 per Kirby J; Rentuza v Westside Auto Wholesale [2009] FMCA 1022; (2009) 236 FLR 231; (2009) 190 IR 207 at [6] per Lucev FM, applied in Halls v KR & MA McCardle & Sons Pty Ltd & Ors [2014] FCCA 316 at [17] and [48]-[49] per Judge Lindsay.
In this case the respondent says that the applicant pursued a claim under s.372 of the Fair Work Act 2009 (Cth) (“FW Act”) before the Fair Work Commission (“FWC”), which relates to a non-dismissal dispute, and as a consequence cannot bring a proceeding in this Court founded upon s.365 of the FW Act dispute, that is a dismissal dispute, because it does not have the requisite certificate from the FWC, is outside the time limit to do so and further because the application does not seek interim injunctive relief: see s.371 of the FW Act as it was prior to 1 January 2014 (that is, prior to the amendments repealing s.371 pursuant to the Fair Work Amendment Act 2014 (Cth) by the Fair Work AmendmentAct 2013 (Cth), s.3 and Schedule 4A, Item 4, operative from 1 January 2014).
In order to deal with the jurisdictional issue thus arising, it is necessary to set out:
a)the nature of the dispute before the FWC as it appears from Faulkner v Tidewater Marine Australia Pty Ltd [2013] FWC 2457 (“Faulkner FWC”); and
b)the relevant provisions of the Statement of Claim.
Dispute before the FWC
In Faulkner FWC the FWC dealt with the preliminary issue as to whether or not the dispute before it was a dispute under s.365 or s.372 of the FW Act.
The FWC noted that the initiating form before the FWC, a Form F8 bore the following heading:
Application for FWA to Deal with a General Protections Dispute Fair Work Act – ss.365, 372
Faulkner FWC at [2] per Williams C.
The FWC went on to observe that the completed Form F8 said that the alleged contravention identified was s.340 of the FW Act and that the applicant before the FWC (who is the applicant in these proceedings) was entitled to the benefits of various legislation and therefore had workplace rights particularised at s.341(1) of the FW Act: Faulkner FWC at [3]-[4] per Williams C.
The FWC noted that the applicant had received a termination letter from the respondent on 11 May 2011 indicating that the reason for the applicant’s termination was the need to reduce the respondent’s workforce, and that subsequently, following the applicant querying the termination, an apology was issued to the applicant and he was told, by letter from the respondent, around 22 February 2012 that his termination was being “rescinded”: Faulkner FWC at [7] and [9] per Williams C.
The FWC set out the terms of an annexure to the Form F8 in which the applicant asserted that:
(a)Tidewater took adverse action against the Applicant within the meaning of s 342(1) of the [FW] Act, namely by dismissing him, injuring him in his employment and altering his position to his prejudice;
(b)That adverse action was for the reason or reasons which included that the Applicant had a workplace right, had exercised a workplace right, proposed to exercise a workplace right or was to prevent the exercise of a workplace right … ;
(c)Tidewater acted unlawfully by breaching s 340(1) of the [FW] Act;
Faulkner FWC at [11] per Williams C.
In response to a question as to whether the alleged contravention involved the dismissal of the applicant, the applicant answered yes: Form 8, question number 3, Faulkner FWC at [12] per Williams C, with the date of dismissal being specified as 11 May 2011: Faulkner FWC at [13] per Williams C.
The FWC noted that the respondent’s Response to the FWC Application was that the applicant had been terminated by letter dated 11 May 2011 due to a significant decline in the availability of work, and that he could not then have been injured or had his position altered to his prejudice thereafter, given that he had already been terminated: Faulkner FWC at [16]-[17] per Williams C. The Response from the respondent also asserted that the Application was made out of time being made more than 60 days from the date of termination, and that no exceptional circumstances in support of an extension of time to make the Application had been outlined: Faulkner FWC at [18] per Williams C.
The FWC then noted that the applicant submitted that the substance of the adverse action complained of in relation to what the respondent had failed to do since reinstating the applicant on 22 February 2012, and the primary relief sought, were under s.372 of the FW Act, for which no extension of time was needed: Faulkner FWC at [20] per Williams C.
The FWC heard submissions from the parties as to whether the FWA Application was one under s.365 or s.372 of the FW Act, and set out those submissions in detail in Faulkner FWC at [21]-[48].
The FWC referred to Shea v TruEnergy Services Pty Ltd (No. 1) [2012] FCA 628; (2012) 204 FCR 456; (2012) 222 IR 156 to support the proposition that the Form F8 filed with the FWC could be at a high level of generality and does not expressly nor implicitly require that the dispute coincides precisely with the content of an application, or that it must specify all the claims and details an applicant might eventually want to include in any later application to this Court or the Federal Court: Faulkner FWC at [55]-[56] and [59] per Williams C.
The FWC appeared to accept that the adverse actions asserted in the application went beyond a dismissal, and included adverse action prescribed in s.342(1), Item 1(b) and (c) of the FW Act, and that there was sufficient detail of alleged contraventions to support an application made under s.365 or s.372 of the FW Act, and that an applicant was not prevented from making a separate s.372 FW Act application merely because they had made a s.365 FW Act application: Faulkner FWC at [63]-[64] and [67] per Williams C. The FWC did however note that:
Certainly section 372(b) of the [FW] Act prescribed that if the employee wishes to make an application disputing the dismissal that must be done under section 365 of the [FW] Act and cannot be disputed under section 372 of the [FW] Act.
Faulkner FWC at [67] per Williams C.
The FWC observed that:
a)the reinstatement of the employment relationship as alleged by the applicant from February 2012 meant that there was scope to argue the adverse actions alleged with respect to injury in employment and alteration of position to prejudice which the applicant alleged; and
b)the fact that the applicant argued that he was a casual employee created the opportunity to argue that the employment relationship was ongoing even though he had an extended period without work.
Faulkner FWC at [72]-[75] per Williams C.
Crucially, the conclusion reached by the FWC on the basis of the foregoing was as follows:
[77] In these circumstances I see no reason why the Commission should interfere with the applicant pursuing his application as he sees fit. The application is one that identified disputes that can be brought under either section 365 or section 372 of the [FW] Act. If the applicant, as he does, says the application is one made under a (sic) section 372 of the [FW] Act then the matter should proceed on that basis.
[78] One of the consequences of that approach is that any dispute about the dismissal of the applicant by Tidewater and the reasons for that dismissal are matters beyond the jurisdiction of this matter as a section 372 application.
[79] The issue originally to be determined by the Commission was a question as to whether an extension of time application was necessary and if it was would it be allowed.
[80] My decision is this application is to be accepted by the Commission as one made under section 372 of the [FW] Act. Consequently there is no question of the application having been made out of time.
Faulkner FWC at [77]-[80] per Williams C.
Statement of Claim
Relevantly, the Statement of Claim alleges that the applicant was given a termination letter on 11 May 2011 stating that the reason for termination was the necessity to reduce the respondent’s workforce: Statement of Claim at [5], and that by letter of 22 February 2012 the respondent “rescinded” the earlier termination of the applicant’s employment, and that this followed an apology from an officer of the respondent and advice to the applicant that he would be reinstated: Statement of Claim at [8]-[9].
The Statement of Claim pleads that there was no employment relationship between the applicant and respondent between 11 May 2011 and 22 February 2012, but that there has been an employment relationship since 22 February 2012: Statement of Claim at [10], but that despite the existence of an employment relationship, and despite written demand by the applicant’s solicitors, the applicant has not received any work from the respondent, nor any compensation for time off work, nor any acknowledgment of the alleged “continuing injustice” it is said that the respondent has “visited upon” the applicant: Statement of Claim at [11].
The applicant then pleads:
(a)the Respondent took adverse action against the Applicant within the meaning of s 342(1) of the Act, initially by dismissing him, and subsequently (ie since the time when the Respondent rescinded the termination and thereby re-employed the Applicant) injuring him in his employment and altering his position to his prejudice;
(b)that adverse action was for the reason or reasons which included that the Applicant had a workplace right, had exercised a workplace right, proposed to exercise a workplace right or was to prevent the exercise of workplace right, that workplace right being one or more of the matters set out in paragraph 1(c) above;
(c)the Respondent accordingly acted unlawfully by breaching s 340(1) of the Act;
(d)the breach of s 340(1) of the Act has caused the Applicant pecuniary loss, namely:
(i)as at 5 July 2013, the sum of $ 387,604 representing 7.6 periods of 5 week swings from 13 July 2011 to 12 July 2013 at $51,600.00 per swing, together with certain allowances (particulars of which will be provided);
(ii)a further sum representing the opportunity the Applicant lost to perform work remunerated at a higher rate reflecting the position of permanent, or full time, Master; and
(e)the breach has also caused the Applicant harm in the form of the distress, hurt, and anxiety he has suffered by reason of his unlawful and unfair treatment by the Respondent.
Statement of Claim at [12].
The relief sought by the applicant includes declarations in the terms set out in [12(a)-(e)], as set out above, and compensation for the harm suffered as thereby pleaded, plus a mandatory injunction compelling the respondent to provide the applicant with work and to remunerate him accordingly, and for a pecuniary penalty to be paid by the respondent: Statement of Claim at [15].
In the Statement of Claim at [14] the applicant deals with the judgment in Faulkner FWC, and asserts that the FWC:
… held, relevantly, that:
(a)as the Applicant had pursued the application in the FWC under s 372 of the Act, the matter should proceed on that basis;
(b)as the application was to be accepted by the Commission as one made under s 372 of the Act, there was no question of it having been made out of time; and
(c)there were a number of disputed facts and points of law between the parties.
Submissions
Respondent’s submissions
The respondent’s submissions were in essence that:
a)the applicant’s claim is limited to a non-dismissal dispute brought under s.372 of the FW Act, noting the Statement of Claim at [14]; and
b)consequently, any dispute about the applicant’s dismissal from employment by the respondent, and the reasons for that dismissal, are matters beyond the jurisdiction of the Court in relation to the applicant’s present Application to this Court.
Respondent’s Outline of Submissions at [2]-[3].
In oral submissions the respondent’s Counsel succinctly put the respondent’s case as follows:
a)section 371(1) of the FW Act provides that a person must not make a general protection court application unless the FWC have issued a certificate under s.369 of the FW Act, or the court application is for an interim injunction. The respondent says that the obligation not to make the application is mandatory because of the use of the word “must”, and that the application to this court does not seek an interim injunction, but rather a mandatory one;
b)the question is whether the applicant was a person who was entitled or is entitled to apply for a dismissal dispute under s.365 of the FW Act, which requires that the employee needs to be dismissed, and as a consequence of the dismissal relies upon an alleged contravention of Part 3-1 of the FW Act giving rise to adverse action in contravention of workplace rights;
c)section 372 of the FW Act deals with a non-dismissal dispute which alleges a contravention of Part 3-1 of the FW Act, and thus a person not entitled to apply to the FWC under s.365 of the FW Act may apply under s.372 of the FW Act;
d)if the applicant alleges that this is a dispute about a dismissal giving rise to alleged adverse action then the relevant time limitation is 60 days from the time of the dismissal in which to bring an action before the FWC under s.365, unless an extension of time is granted under s.366(2) of the FW Act;
e)the decision in Faulkner FWC found that the application to the FWC was in relation to a s.372 dispute, and not a s.365 dispute, and as a consequence there was no requirement to extend time under s.366(2) of the FW Act;
f)insofar as the present Statement of Claim alleges adverse action by way of dismissal from employment that is not a matter within the jurisdiction of the Court, and particular reliance was placed upon the fact that in Faulkner FWC it was indicated that it was the applicant himself who indicated that he was proceeding under s.372 of the FW Act; and
g)that because there was no certificate from the FWC with respect to a s.365 dispute, and no application within 14 days of the issuance of such a certificate to this Court in respect of a s.365 dispute, that is a dismissal dispute, the Court has no jurisdiction to deal with any dispute concerning the dismissal of the applicant.
Finally, the respondent said that the consequence of its submissions is that the Court can only look at the questions of injury in employment and alteration to position to the prejudice of the applicant which are pleaded in the Statement of Claim.
Applicant’s submissions
The applicant’s submissions were put with some subtlety and complexity, but, in essence, they amount to this: that the issue of whether or not Mr Faulkner was dismissed on or about 11 May 2011 remained in issue, even for the purposes of s.365 of the FW Act, but also for the purposes of other forms of relief sought by the applicant, and, therefore, the Court had jurisdiction to deal with the matter of that dismissal. The applicant acknowledged that there was no s.365 FW Act certificate.
The applicant indicated that it was prepared to make an application for an interim injunction by way of relief to ensure that the application was within the jurisdiction of the Court. Ultimately, however, the application for interim injunctive relief was not pressed.
Consideration – preliminary issue – jurisdiction
The lack of a certificate from the FWC in relation to the alleged s.365 FW Act dispute means that this Court does not have jurisdiction to deal with a dispute alleging contravention of workplace rights by reason of adverse action being a dismissal. Insofar as the Statement of Claim makes such an allegation, or claim, the Court is without jurisdiction to hear it without the relevant certificate: Newman v East Yarra Friendly Society Pty Ltd Trading As My Chemist Pharmacy [2011] FCA 1262 at [5] per North J; Poole v Rod Baker & Co [2011] FMCA 357; (2011) 207 IR 264 at [24]-[25] per O’Sullivan FM; Pitrau at [50]-[52] per Lucev FM.
The above finding does not however dispose of this matter. The claim based on s.372 of the FW Act makes non-dismissal claims in relation to injury in employment and alteration to the applicant’s position to his prejudice. It is arguable, and the Court so finds, that whether or not the applicant has been prejudiced in employment, or had his position altered to his prejudice, may depend upon the nature of his employment both pre and post 11 May 2011. That may also turn upon whether or not the applicant was a casual employee prior to that time, and whether he was a casual employee after 11 May 2011, and whether or not it is possible to dismiss a casual employee, in the circumstances in which this applicant was employed, and in this particular industry. Those are legal and factual questions upon which the Court may have to make findings to deal with the question of the relief otherwise claimed.
The nature of the applicant’s employment, and whether or not he was dismissed on or about 11 May 2011, might also be relevant to the monetary relief sought by the applicant for swings allegedly not worked. Ultimately, if the applicant was not dismissed (or if the dismissal was, as the respondent purported to do, “rescinded”, a concept not without its legal difficulties), as opposed to the applicant being reemployed, the issue of whether or not the applicant was dismissed may also impact upon the quantum, if any, of any monetary relief for swings allegedly not worked.
For all of the above reasons, in relation to the preliminary issue of jurisdiction, the only jurisdictional prohibition which arises is on the Court dealing with a s.365 FW Act dismissal dispute which alleges a contravention of workplace rights by reason of adverse action constituted by dismissal. Otherwise, the issue of whether or not the applicant was dismissed (which is a factual issue) may, together with the nature of the applicant’s employment, be relevant to the relief otherwise sought by the applicant.
Interim injunctive relief
The application for interim injunctive relief was not pressed at hearing. Although there is little doubt that courts have adopted a more liberal approach with respect to injunctive relief which has the effect of reinstating an employee in recent years, it is still a form of relief which is very much the exception rather than the rule. The Court also notes that there may be some difficulty with a claim which is simply made for the purposes of attracting jurisdiction. The Court merely notes those matters, and need not further deal with them.
Minor amendment at hearing
At hearing, leave was granted to make a minor amendment to the defence in terms of a minute of proposed amended defence handed up in Court by Counsel for the respondent, which had the effect of deleting the words “but denies that it was a termination letter” from paragraph 5 of the defence.
The Court permitted that amendment because, in the Court’s view, the removal of a denial of that type lessens the scope for dispute at hearing, and is therefore appropriate in the context of the Court’s general case management objects in s.3 of the FCCA Act and r.1.03 of the FCC Rules.
Conclusions and orders
With respect to the primary preliminary issue of jurisdiction the Court has concluded that it has jurisdiction, save insofar as there might be a claim for the Court to deal with a s.365 FW Act dismissal dispute alleging a contravention of workplace rights by reason of adverse action constituted by dismissal.
In the circumstances, before the Court makes, or determines if it is necessary to make, any declaration or further orders, the parties are ordered to confer with respect to any necessary declarations or orders arising from these Reasons for Judgment, and any future programming orders, and the matter will be adjourned to a directions hearing at 11.00am on 4 September 2015 to hear further from the parties in those respects.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 28 August 2015
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