Ferrington v Qube Ports Pty Ltd

[2025] NSWCATAD 101

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Ferrington v Qube Ports Pty Ltd [2025] NSWCATAD 101

Hearing dates:

3 April 2025

Date of orders:

06 May 2025

Decision date:

06 May 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Smith, Senior Member

Decision:

(1) Pursuant to ss 102 and 92(1)(b) of the Anti-Discrimination Act 1977 (NSW), the Tribunal dismisses the whole of the Applicant’s complaint.

(2) If either party seeks costs of the proceedings, they are to notify the Tribunal within 21 days of the date of this decision. Further directions will then be made by the Tribunal, if costs are sought.

Catchwords:

JURISDICTION – disability discrimination – termination of employment - enterprise agreement - whether dispute is a matter that involves federal jurisdiction – dismissal

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Civil Procedure Act 2005 (NSW)

Fair Work Act 2009 (Cth)

Judiciary Act 1903 (Cth)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Australian Postal Corporation v Williams [2024] NSWCATAP 168

BDK v Department of Education and Communities [2015] NSWCATAP 129

Blanch v Smith [2024] NSWCATAD 20

Burns v Corbett [2018] HCA 15

Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16

Felton v Mulligan [1971] HCA 39; 124 CLR 367

Gaynor v Burns [2025] NSWSC 185

Hammond v Ozzy’s Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65

Moorgate Tobacco Co Ltd v Philip Morris Ltd [1980] HCA 32

Murphy v Trustees of Catholic Aged Care Sydney [2018] NSWCATAP 275

R v Commonwealth of Conciliation and Arbitration: Ex parte Barrett [1945] HCA 50; 70 CLR 141

Rana v Google Inc [2017] FCAFC 156

Re Luck [2003] HCA 70

Spicers v Owners Corporation [2016] NSWCATAP 11

Tucker v McKee [2022] FCAFC 98

Wilson v Chan & Naylor Parramatta Pty Ltd [2020] NSWCA 213

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Mark Ferrington (Applicant)
Qube Ports Pty Ltd (Respondent)

Representation:

Counsel:
D Ward (Respondent)

Solicitors:
Maritime Union of Australia (Applicant)
Allens (Respondent)

File Number(s):

2024/00238310

Publication restriction:

Nil

REASONS fOR DECISION

1. The Respondent, Qube Ports Pty Ltd (Qube) is seeking that the Tribunal dismiss the Applicant, Mark Ferrington’s disability discrimination complaint (the complaint) on the basis that the Tribunal does not have jurisdiction as the matter involves federal jurisdiction. The Tribunal has decided to dismiss the complaint on this basis.

Background

2. Mr Ferrington commenced employment with Qube as a Stevedore on 1 August 2007.

3. In January 2020, Mr Ferrington suffered a work-related back injury and lodged a successful workers compensation claim.

4. In late 2021, Mr Ferrington returned to work with Qube on light duties.

5. On 17 March 2023, Mr Ferrington’s employment as a Stevedore was terminated by Qube on the ground that Mr Ferrington had an injury that prevented him from performing the inherent requirements of his position.

6. Prior to his termination, Mr Ferrington’s employment with Qube was governed by the Qube Ports Pty Ltd Port of Kembla Enterprise Agreement 2021 (the Enterprise Agreement). Mr Ferrington is a member of the Maritime Union of Australia Division of the Construction, Forestry and Maritime Employees Union. The Maritime Union represents members employed by Qube at its operations at Port Kembla who are covered by the Enterprise Agreement.

7. On 1 December 2023, Anti-Discrimination NSW received a complaint from Mr Ferrington against Qube. Mr Ferrington alleged that the termination of his employment was unlawful because:

1. The decision to terminate his employment was wholly or partly on the ground of an actual or imputed disability.

2. Stevedoring encompasses many roles of Qube including Forklift Driver.

3. The complainant had been performing Forklift and Dock Truck Driving roles post injury for over a year since his return to work on light duties.

4. Qube had no legitimate basis for concluding that Mr Ferrington had a medical condition that renders him permanently unfit to perform the duties of his position.

5. Even if Mr Ferrington was unable to perform all the roles of a Stevedore, there are a plethora of roles he can perform with Qube.

6. Qube did not take account of the relevant considerations prior to terminating Mr Ferrington’s employment. No consideration was given to reasonable adjustments (services and facilities) to enable Mr Ferrington to continue to perform the role.

8. Qube responded to the complaint by stating that the inherent requirements of a Stevedore include the core activities of bending, squatting and climbing, with the specific tasks listed in the Enterprise Agreement. Qube stated that they relied on sound medical advice from multiple experts before any decisions were made.

9. Attempts made by Anti-Discrimination NSW to settle or resolve the complaint at a conciliation conference were unsuccessful. On 17 June 2024, Mr Ferrington requested that his complaint be referred to the Tribunal.

10. On 27 June 2024, the President of Anti-Discrimination NSW referred the complaint to the Tribunal under s 93C of the Anti-Discrimination Act1977 (NSW) (ADA).

11. On 17 October 2024, Mr Ferrington filed his Points of Claim. Mr Ferrington sought the following damages against Qube:

1. Lost wages and benefits as the difference between what he would have made under applicable enterprise agreements between when his employment was terminated and when a final decision is delivered in the proceedings, and

2. General damages in an amount proven at hearing.

12. On 20 December 2024, Qube filed their Points of Defence which raised the issue of the Tribunal’s jurisdiction on the basis that the proceeding is a matter arising under a law made by the Commonwealth Parliament, namely the Fair Work Act 2009 (Cth) (FWA) and/or a matter arising under the Constitution or involving its interpretation. On the same date, Qube filed an application for summary dismissal of the complaint on the basis that the Tribunal lacks jurisdiction.

13. On 1 April 2025, a request was made by Mr Ferrington, opposed by Qube, to adjourn the hearing of Qube’s application for summary dismissal scheduled on 3 April 2025 for at least 30 days. This was to allow for the Commonwealth Attorney-General to be notified by Mr Ferrington that the proceedings raise an issue involving the constitutional power of the Commonwealth. On 2 April 2025, after considering written submissions from the parties, this application was refused by the Tribunal.

14. On 3 April 2025, a hearing was held in relation to Qube’s application for summary dismissal. Qube prepared an Application Book which was tendered at the hearing, which included the Points of Claim, Points of Defence, the Application for summary dismissal, the Enterprise Agreement and various authorities. Both parties relied on written submissions and made oral submissions during the hearing.

15. At the conclusion of the hearing, both parties requested that costs be reserved.

Issues

16. The task of the Tribunal is to first decide whether to it has jurisdiction to deal with Mr Ferrington’s complaint. In undertaking this task, the following issues require determination:

• Issue 1: Does the matter involve federal jurisdiction?

• Issue 2: Does the matter arise under the Constitution or involve its interpretation?

17. If the Tribunal answers Issue 1 in the affirmative, it is unnecessary for the Tribunal to determine Issue 2.

18. If the Tribunal determines that it does not have jurisdiction to deal with Mr Ferrington’s complaint, then the Tribunal is to decide what is the most appropriate action to take, noting the options proposed by Qube in its application for summary dismissal and the Tribunal’s powers to dismiss or otherwise decline to deal with a matter.

Jurisdiction of the Tribunal

Referral of complaints under the ADA

19. Section 28(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides that the Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation.

20. Sections 90B, 93A, 93B and 93C of the ADA provides that the President of Anti-Discrimination NSW can refer certain complaints to the Tribunal, including at the request of a complainant, if unresolved after 18 months, if the complaint cannot be resolved by conciliation and in other circumstances. The Minister may also refer any matter to the Tribunal as a complaint (ADA, s 95(2)).

Federal jurisdiction

21. Part 3A of the NCAT Act deals with ‘federal proceedings’. Section 34A of the NCAT Act defines ‘federal jurisdiction’ to mean jurisdiction of a kind referred to in s 75 or s 76 of the Commonwealth Constitution. The Tribunal has no jurisdiction to determine matters that fall within federal jurisdiction as it is not a ‘court of a State’ referred to in s 77 of the Constitution: Burns v Corbett [2018] HCA 15, [63].

22. Section 39(1) and (2) of the Judiciary Act 1903 (Cth) confers a general federal jurisdiction on State courts to determine matters within ss 75 and 76 of the Constitution.

23. Section 75 of the Constitution includes matters that fall within the original jurisdiction of the High Court. Section 76 of the Constitution provides that the Parliament may make laws conferring original jurisdiction on the High Court in any matter arising under the Constitution or involving its interpretation and in any matter arising under any laws made by the Commonwealth Parliament.

24. The jurisdiction of the High Court is exclusive of the jurisdiction of the courts of the States, with certain exceptions (Judiciary Act 1903 (Cth), ss 38, 39).

25. The original jurisdiction of the Federal Court of Australia includes jurisdiction in any matter arising under the Constitution, or involved in its interpretation, or arising under any laws made by the Commonwealth Parliament (Judiciary Act, s 39B(1A)(b),(c)).

26. A matter can arise under a law of the Commonwealth Parliament within the meaning of s 39B(1A)(c) of the Judiciary Act in a variety of ways:

1. The right or duty in question in the matter owes its existence to federal law or depends on federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law: R v Commonwealth of Conciliation and Arbitration: Ex parte Barrett [1945] HCA 50; 70 CLR 141, 154.

2. Where a cause of action is created by a Commonwealth statute; where a Commonwealth statute is relied upon as establishing a right to be vindicated; where a Commonwealth statute is the source of a defence that is asserted; where the subject matter of the controversy owes its existence to Commonwealth legislation – that is, where the claim is in respect of or over a right which owes its existence to federal law; where it is necessary to decide whether a right or duty based on a Commonwealth statute exists even where that has not been pleaded by the parties, or where a federal issue is raised on the pleadings but it is unnecessary to decide. There is a difference, however, between a matter “arising under” a law of the Parliament and a matter that merely involves the interpretation of a federal law (and which will not on its own attract federal jurisdiction): Rana v Google Inc [2017] FCAFC 156, [18].

3. Whether the defence raised to the applicant's claim involves the exercise of federal jurisdiction - either wholly or partly a matter arising under a law made by the Commonwealth Parliament. Further, the matter arising under a law of the Parliament will have arisen if the suit could be disposed of by deciding the matter, whether or not the suit is so disposed of. It is of course not enough that a law made by the Parliament must be construed in the course of the decision of the case. There must be a matter arising under a law of the Parliament. The contrast between the language of s 76 (i) and s 76 (ii) of the Constitution is relevant in this connexion: Felton v Mulligan [1971] HCA 39; 124 CLR 367, [9].

27. In the event the proceedings constitute a matter arising under a federal law (i.e. a federal matter), only a court of a State, as contemplated by the Constitution, has the authority to hear and determine the proceedings: Murphy v Trustees of Catholic Aged Care Sydney [2018] NSWCATAP 275, [18]. In Murphy, at [22], The Appeal Panel set out the following principles as a non-exhaustive list drawn from a raft of cases, to assist in determining when a matter is a federal matter:

1. Not every proceeding that is touched by a Commonwealth law is a federal matter. For instance, a matter that requires only the interpretation of a federal law will not render the proceedings a federal matter. Similarly, it is not sufficient if the federal statute arises in an incidental fashion.

2. The question of whether a federal matter arises is one of substance and not form.

3. To identify the “matter” it is necessary to identify the justiciable controversy.

4. It is sufficient if the matter could be decided by reference to the federal law, it is not necessary that the matter be disposed of in that way.

5. A federal issue may arise even where the parties have not directly asserted it, but where the court must nevertheless examine whether a right or duty under federal law exists.

6. It is not necessary for the form of relief sought to depend on federal law; it is sufficient if the source of the right or subject matter of the claim exists as a result of federal law.

7. A federal matter will also arise where the source of a defence is a federal law.

8. Unless a federal issue is colourable, there is a federal “matter”: i.e., the whole of the proceedings is a federal matter requiring the exercise of federal jurisdiction.

28. Generally, the non-colourable assertion of a federal issue is enough to attract federal jurisdiction: Felton, [374].

29. The question of colourability (or legitimacy or validity) of the claim is to be assessed by reference to the genuineness of the raising of the issue. An issue or pleading not genuinely raised will not engage federal jurisdiction. Likewise, federal jurisdiction is not engaged by an incomprehensible or nonsensical claim or defence that is thereby incapable of legal argument and so of giving rise to a matter within s 76 of the Constitution: Tucker v McKee [2022] FCAFC 98, [68].

30. Upon the existence of federal jurisdiction, the matter remains within federal jurisdiction regardless of how the federal issue or issues within it are ultimately resolved: Moorgate Tobacco Co Ltd v Philip Morris Ltd [1980] HCA 32, [476].

31. The Tribunal does have incidental (or anterior) jurisdiction to determine whether the hearing and determination of a particular complaint would be within the legislated limits of its jurisdiction: Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16, [25]. In deciding that question, the Tribunal is not exercising federal judicial power (federal jurisdiction) – even if it concludes that it lacks jurisdiction because the claim invokes federal jurisdiction, and acts upon that opinion by dismissing the proceedings for want of jurisdiction, or transferring them to a court, if it is of the opinion that the claim is outside its jurisdiction: Wilson v Chan & Naylor Parramatta Pty Ltd [2020] NSWCA 213, [14].

Dismissal of proceedings

Grounds for ‘summary dismissal’ relied on by Qube

32. Qube seeks a summary dismissal of Mr Ferrington’s substantive application pursuant to:

1. Sections 102 or 108 of the ADA, or

2. Section 29(2)(a) of the NCAT Act, or

3. Any implied or incidental power of the Tribunal to summarily dismiss an application in respect of which it lacks jurisdiction.

Dismissal under the ADA

33. Section 102 of the ADA provides that the Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92(1)(a)(i) or (ii) or (b) of the ADA.

34. Section 108 of the ADA provides that in proceedings relating to a complaint, the Tribunal may dismiss the complaint in whole or in part, or find the complaint substantiated in whole or in part.

35. Section 92 of the ADA provides that the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint, if the President is satisfied that:

1. the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or

2. the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or

3. the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or

4. another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or

5. the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or

6. the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or

7. it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or

8. for any other reason no further action should be taken in respect of the complaint, or part of the complaint.

Ancillary and interlocutory decisions under the NCAT Act

36. Section 29(2)(a) of the NCAT Act provides that the Tribunal has jurisdiction in proceedings for the exercise of its general jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings. The Tribunal has general jurisdiction over a matter if legislation (other than the NCAT Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter and the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal.

37. Section 4 of the NCAT Act defines an ‘interlocutory decision’ of the Tribunal to mean a decision made by the Tribunal under legislation concerning a number of matters, including ‘the summary dismissal of proceedings’.

38. An order dismissing the proceedings is a decision within the definition of an interlocutory issue before the Tribunal as such an order is akin to an order dismissing the proceedings on the basis that the application is “frivolous, vexatious, an abuse of process of the court or does not disclose a reasonable cause of action”: Re Luck [2003] HCA 70, [9]. Such an order is in respect of the application or process filed and is not a determination of substantive rights on the merits: Spicers, [35].

39. Section 4 of the NCAT Act defines an ‘ancillary decision’ of the Tribunal to mean a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining the proceedings, and includes a decision concerning whether the Tribunal has jurisdiction to deal with a matter. It follows from the definition of ‘ancillary decision’ that if a decision is an interlocutory decision, it cannot be an ancillary decision: Hammond v Ozzy’s Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65, [35].

General power of dismissal under NCAT Act

40. Section 55(1) of the NCAT Act provides that the Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances:

1. if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate,

2. if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,

3. if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings,

1. if the Tribunal considers that there has been a want of prosecution of the proceedings.

41. There is no definition of “summary dismissal” in the NCAT Act. While there is no definition of “summary dismissal” in the NCAT Act, by analogy with the Civil Procedure Act 2005 (NSW) and Part 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) - Summary Disposal, “summary dismissal” as that expression is used in the NCAT Act would include dismissing the proceedings because they were “frivolous, vexatious, misconceived or lacking in substance”: Spicers v Owners Corporation [2016] NSWCATAP 11, [68].

42. The Appeal Panel considered the Tribunal’s power of dismissal in s 55(1)(b) of the NCAT Act in BDK v Department of Education and Communities [2015] NSWCATAP 129 at [63]-[66]:

In Alchin v Rail Corporation NSW [2012] NSWADT 142 Judicial Member Wright SC (as he then was) examined the meaning of the predecessor provision to s 55(1)(b) - s 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1977. As to the meaning of ‘misconceived’ and ‘lacking in substance’, he said:

25 The expressions used in s 92(1)(a)(i) of the ADA, namely "misconceived" and "lacking in substance" are found not only in the ADA but also in s 73(5)(g) of the ADT Act and similar legislation in other states. With respect to a similar provision found in the Equal Opportunity Act 1984 (Vic), Ormiston JA in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at [14] said:

"misconceived" and "lacking in substance" have not, so far as I am aware, been used in this context before though each expression is commonly used by lawyers, the one connoting a misunderstanding of legal principle and the other connoting an untenable proposition of law or fact. If one may discern, in these provisions, an attempt to express the powers of tribunals in non-technical language, then "misconceived" would represent a claim which did "not disclose a cause of action" ..., whereas "lacking in substance" might be seen to represent a claim where the defendant could obtain summary judgment ...

26 This approach of construing "misconceived" as including a misunderstanding of legal principle and "lacking in substance" as encompassing an untenable proposition of fact or law has been applied by the Tribunal in many decisions including, for example, Keene v Director-General, Department of Justice and Attorney-General [2011] NSWADT 59 at [14], McDonald v Central Coast Community Legal Centre [2008] NSWADT 96 at [22] and Stanborough v Woolworths Ltd [2005] NSWADT 203 at [50].

In the present case, the Tribunal referred to the frequently-cited explanation of this term by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491:

1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.

2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.

3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.

It will be seen that Roden J’s first category covers conduct that falls within the meaning of ‘frivolous’, while his third category embraces the kind of cases to which the expressions ‘misconceived’ and ‘lacking in substance’ are directed (or, in the case of the UCPR categories, cases not disclosing a reasonable cause of action).

In our view a reasonably broad connotation should be given to the meaning of the four categories of conduct identified by s 55(1)(b). The intent of the provision, as we see it, is to seek to give the Tribunal a broad power to deal with abuses of its processes, and for them to be interpreted and applied in a power which captures any kind of abuse of process, that can reasonably be seen to fall within their compass. While ‘misconceived’ and ‘lacking in substance’ may be seen as relatively specific terms, we think a flexible, purposive interpretation can be adopted in determining whether proceedings are ‘frivolous’ or ‘vexatious’, conscious always of the gravity for an applicant or plaintiff of summary dismissal of proceedings.

43. The Appeal Panel in Davis v Minister for Health [2023] NSWCATAP 211 at [31] referred to other decisions in which the phrase “lacking in substance” used in the context of statutory provisions which confer power to dismiss proceedings summarily, has been given several meanings:

(1)    “an untenable proposition of law or fact": Rabel at 109 (Ormiston JA) in relation to s 44C of the Equal Opportunity Act 1984 (Vic);

(2)   “complaints that are obviously hopeless or obviously undeserving of relief”: Rabel at 104 (Tadgell JA);

(3)   “a claim which presents no more than a remote possibility of merit and which does no more than hint at a just claim”: GVR v Department of Health, Housing and Community Services (Human Rights and Equal Opportunity Commission, Wilson P, 23 August 1993, unrep) in relation to the Racial Discrimination Act 1975 (Cth), cited with approval by Von Doussa J in Nagasinghe v Worthington (1994) 53 FCR 175 at 178; [1994] FCA 766;

(4)   “proceedings in respect of which it is readily apparent that they are hopeless and bound to fail”: Chopra v Department of Education and Training (2019) 60 VR 505;[2019] VSCA 298 at [134] (Tate, Whelan and Kyrou JJA) in relation to the Civil and Administrative Tribunal Act 1998 (Vic), s 75(1)(a);

(5)   a claim that is “not reasonably arguable”: Zouk at [45] (Ipp JA, Beazley and Bryson JJA agreeing) in relation to the Strata Schemes Management Act 1996 (NSW), s 185(4).

44. The Appeal Panel in Davis at [53]-[54] stated:

We agree with the view expressed by the Appeal Panel in BDK that a “reasonably broad connotation” should be given to the meaning of each of the four categories of proceedings listed in s 55(1)(b) of the NCAT Act. Ms Davis is correct that the phrase “lacking in substance” can mean proceedings where it is found that the initiating claim or application is based on an “untenable proposition of fact or law” or “is not reasonably arguable”. However, there is nothing in the text, context or purpose of s 55(1)(b) of the NCAT Act to suggest that these are the only findings which might justify the conclusion that the proceedings are lacking in substance. A range of findings could potentially justify a conclusion that proceedings are “lacking in substance”, including that the proceedings “would be of no practical effect”, or that the initiating application was based on an “untenable proposition of fact or law” or was “not reasonably arguable”. Equally, a range of findings could potentially justify a conclusion that proceedings are “vexatious”, “frivolous” or “misconceived” (see, e.g., the analysis of Roden J about the term vexatious in Attorney-General v Wentworth at 491).

Section 55(1)(b) of the NCAT Act empowers the Tribunal to govern its own processes, to ensure that its processes are not abused and to ensure that its resources are applied to resolving real, not confected, amorphous or nebulous disputes. The Tribunal arguably could have dismissed the Application on the basis that, while not initially, it had become vexatious (although not intended to be) or misconceived because any “success” achieved by Ms Davis could have had no practical effect due to the passage of time and the expiration of the Public Health orders. Proceedings, such as this one, which beg the question “So what?”, in essence lack legal substance and therefore have “no practical effect”.

45. None of the subsections in s 55(1) of the NCAT Act refer to dismissal based on a lack or want of jurisdiction: Blanch v Smith [2024] NSWCATAD 20, [57].

Position of the parties

Issue 1 – Does the matter involve federal jurisdiction?

46. Qube submits that both Mr Ferrington and Qube are invoking a right or duty under the Enterprise Agreement which is made under the FWA, which is a federal statute. Qube relies, in particular, on an analogous case in Tucker v McKee where the Full Court of the Federal Court found in a defamation case that the respondent’s defence of qualified privilege based in part on a legal duty or interest in an enterprise agreement (which owed its existence to the FWA) involved a matter arising under a law of the Commonwealth Parliament.

47. Mr Ferrington submits, by reference to the principles in Murphy, that the complaint is not a federal matter. Mr Ferrington submits that it is not necessary to reference any FWA provision to adjudicate Mr Ferrington’s claim under the ADA. Mr Ferrington submits that the Enterprise Agreement is a piece of evidence that Mr Ferrington will rely on for the roles that could have been performed and what remuneration he was entitled to had he been employed, however the rights and duties are exclusively contained in the ADA.

Issue 2 – Does the matter arise under the Constitution or involved its interpretation?

48. Qube submits that the Enterprise Agreement contains a dispute resolution mechanism which is the manner in which the dispute between Mr Ferrington and Qube is to be resolved. Qube submits that the extent to which the NCAT Act purports to confer upon the Tribunal jurisdiction to determine the claim is:

1. inconsistent with the Enterprise Agreement and therefore s 29(1) of the FWA (which provides that a modern award or an enterprise agreement prevails over a law of a State or Territory, to the extent of any inconsistency), and

2. to the extent of that inconsistency, invalid by virtue of s 109 of the Constitution (which provides that when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid).

49. Mr Ferrington submits that the Enterprise Agreement applies to employees who work in the classifications defined in the Enterprise Agreement. Mr Ferrington submits that the termination of his employment is the basis for his complaint, and that immediately upon termination of his employment, Mr Ferrington became a former employee of Qube and has no right to raise a dispute under the Enterprise Agreement. Mr Ferrington submits that Qube’s second basis for dismissal is therefore spurious and misguided.

Consideration

Issue 1 – Does the matter involve federal jurisdiction?

50. To determine this issue, it is first necessary to consider whether there is an applicable federal law.

51. Mr Ferrington submits that the Enterprise Agreement is not a law and as such, the source of Qube’s defence (provisions contained in the Enterprise Agreement) is not a federal law. Mr Ferrington acknowledged that enterprise agreements have been described as having a ‘legislative character’ and ‘statutory force’ and as being ‘creatures of statute’, however submitted that they are not laws. In support of this submission, Mr Ferrington referred the Tribunal generally to Toyota Motor Corporation Australia Limited v Marmara [2014] FCAFC 84.

52. In Tucker v McKee at [55], the Court found that while the enterprise agreement in that matter was not a law of the Commonwealth, it is a species of agreement which owes its existence to, and enforceability from, a law of the Parliament. In support of this view, the Court referred to Ridd v James Cook University [2021] HCA 32, [11] (the FWA gives ‘statutory force to the terms of the Enterprise Agreement’) and Toyota Motor Corporation Australia Limited, [89] (an enterprise agreement approved under the FWA has ‘a legislative character’).

53. In this matter, Qube applied successfully to the Fair Work Commission under s 183 of the FWA for the approval of the Enterprise Agreement, which was made under s 172 of the FWA, and is enforceable in accordance with s 50 of the FWA.

54. The Tribunal accepts that in this matter the Enterprise Agreement owes its existence to a federal law, the FWA.

55. In relation to the question of whether this matter then involves federal jurisdiction, Qube submits that both Mr Ferrington and Qube have raised rights and duties arising from the Enterprise Agreement.

56. In this regard, the Points of Claim refer to:

1. Mr Ferrington having been covered by the Enterprise Agreement (Point 2)

2. All the Stevedoring roles at Qube Ports identified in the Enterprise Agreement (Point 3)

3. Mr Ferrington’s argument that there is a plethora of roles of the Stevedore that Mr Ferrington has and could perform, which do not require heavy lifting, constant bending or squatting, which Qube could roster Mr Ferrington to work in, and Mr Ferrington could safely perform (Points 11 to 18)

4. The Enterprise Agreement as a basis for calculating lost wages and benefits (Point 25).

57. The Points of Defence refer to the Enterprise Agreement as follows:

1. Admitting that immediately before his termination, Mr Ferrington’s employment was as a grade 3 Provisional Full-time Salaried Employee pursuant to the Enterprise Agreement (Point 1).

2. Stating that the role a Stevedore is rostered to perform on any given shift at Port Kembla is a function of a range of factors, including the duties of the Stevedore, and Qube to comply with the rostering and other provisions of the Enterprise Agreement pursuant to s 50 of the FWA (Point 3).

3. Denying Mr Ferrington’s claim that there is a plethora of roles of the Stevedore he can perform (Point 11) by stating:

1. Mr Ferrington’s particular employment required him to comply with the rostering process in the Enterprise Agreement, pursuant to s 50 of the FWA.

2. An inherent requirement of Mr Ferrington’s particular employment was that he be able to perform any role for which he was appropriately skilled and which Qube might roster him to perform on any given shift, in accordance with the requirements of the Enterprise Agreement.

3. Further or in the alternative, an inherent requirement of Mr Ferrington’s particular employment was that he be able to perform the roles actually performed by his assigned Grade with his skills, training and experience, including any roles that are classified at other Grades in the Enterprise Agreement.

4. Further or in the alternative, an inherent requirement of Mr Ferrington’s particular employment was that he be able to perform the roles of General Duties or Driver PCC as identified in the Enterprise Agreement.

4. Stating that no Stevedore employed at Port Kembla performs the same role on every shift, except for one particular case which is specified in the Enterprise Agreement (Point 13).

5. Stating that there is no Stevedore that is employed by Qube who is ‘never rostered to work’ in a role that involves lashing or unlashing, except in one particular case specified in the Enterprise Agreement (Point 14).

6. Stating that Qube cannot permanently allocate less physically demanding roles to Mr Ferrington, because of Qube’s duty under s 50 of the FWA to comply with the Enterprise Agreement, and in particular its clauses concerning rostering and employee safety (Point 16).

7. Stating that it was necessary for the Respondent to terminate Mr Ferrington’s employment in order to comply with the Enterprise Agreement, the FWA and the Work Health and Safety Act 2011 (NSW) (Point 21).

8. Stating that if ‘reasonable adjustments’ refer to a circumstance in which Qube adopts a new practice of rostering Mr Ferrington only onto jobs that accommodate his medical condition, then such a circumstance is inconsistent with the Enterprise Agreement and hence s 50 of the FWA and the Work Health and Safety Act (Point 25).

58. The issues raised both in Mr Ferrington’s claim and in Qube’s defence can only be determined by reference to the application of various provisions of the Enterprise Agreement, which is within federal jurisdiction. Qube, in particular, asserts, in defence to multiple points of Mr Ferrington’s claim, that taking the action suggested by Mr Ferrington would cause Qube to be in breach of s 50 of the FWA.

59. Applying the reasoning in Tucker v McKee, the rights and duties that Mr Ferrington and Qube refer to in their cases in terms of rostering, roles to be performed, employee safety and termination of employment, all owe their existence to a federal law (the FWA) since the Enterprise Agreement itself and its enforceability depend on the application of the FWA. The rights and duties arising from the Enterprise Agreement are not incidental or irrelevant to the claim, they are central to the determination of the claim, particularly as raised in Qube’s Points of Defence. The Tribunal therefore finds that this is sufficient to give rise to federal jurisdiction.

60. There are otherwise no factors in the principles in Murphy as outlined above, that would lead the Tribunal to a conclusion that federal jurisdiction is not involved in this matter.

61. Mr Ferrington submitted that the only rights asserted were state based under the ADA. While Mr Ferrington may contend that he only intends to rely on the ADA and refer to the Enterprise Agreement as a piece of evidence, Qube has raised a number of rights and duties in the Enterprise Agreement in its defence. Even if the Tribunal were to find that Mr Ferrington’s case did not involve any rights or duties arising from the Enterprise Agreement, it could not make that same finding in respect of Qube’s case. Mr Ferrington’s cause of action or form of relief may not be created or provided for by a law of the Commonwealth Parliament, however if a law of the Parliament is relied upon as giving a right sought to be vindicated or as the source of a defence asserted then the matter (that is, the controversy) in which that right or defence arises, it is a matter arising under the law: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett at 154.

62. The success or otherwise of Qube’s defence as they relate to rights and duties arising from the Enterprise Agreement, do not bear on whether the matter involves federal jurisdiction. As held in Moorgate, upon the existence of federal jurisdiction, the matter remains within federal jurisdiction regardless of how the federal issue or issues within it are ultimately resolved.

63. Mr Ferrington submitted that Qube’s application for summary dismissal had ‘no merit whatsoever’, that the allegation of violating the Enterprise Agreement was made ‘without any teeth’ in it and involved ‘vague theoretical breaches’ of the FWA. In all the circumstances, the Tribunal is not persuaded that Qube’s raising of the issue of federal jurisdiction is colourable in the sense that it is an incomprehensible or nonsensical claim or defence that is thereby incapable of legal argument: Tucker v McKee, [68]. Qube has referred to various rights and duties in the Enterprise Agreement in its Points of Defence, which the Tribunal finds are capable of legal argument.

64. Mr Ferrington submitted during the hearing that if granted, Qube’s application for summary dismissal would mean that an employee covered by an Enterprise Agreement would have no right to bring a claim for discrimination to the Tribunal. The Tribunal does not agree with this submission, as whether a matter involves federal jurisdiction would depend on a careful examination of the facts of each case. The Tribunal also notes that during the hearing the Tribunal did ask the parties whether any consideration had been given to making an application under s 34B of the NCAT Act, which would give Mr Ferrington a pathway for his claim being heard in an authorised court. The parties, however, had not yet turned their mind to this option.

Issue 2 – Does the matter arise under the Constitution or involved its interpretation?

65. The Tribunal is not persuaded by Qube’s contention that the dispute resolution mechanism in the Enterprise Agreement is how the claim should be resolved and therefore ousts the jurisdiction of the Tribunal. Mr Ferrington is no longer an employee with Qube and the Enterprise Agreement (at cl 5.1) applies to all employees who work in the classifications set out in the Enterprise Agreement and who are employed by Qube at the port of Port Kembla. The dispute resolution mechanism in the Enterprise Agreement would therefore not apply to Mr Ferrington, although it may still apply to Qube and its other employees.

65. However, having found that the federal jurisdiction is involved in this matter, the Tribunal does not need to determine the issue of whether the matter arises under the Constitution or involve its interpretation.

In the absence of jurisdiction, how should the application be dealt with?

67. As the Tribunal has found that it does not have jurisdiction to deal with Mr Ferrington’s complaint as the matter involves federal jurisdiction, the Tribunal is to decide what is the most appropriate action to take, noting the options proposed by Qube in its application for summary dismissal and the Tribunal’s powers to dismiss or otherwise decline to deal with a matter.

68. The Tribunal is satisfied that it has the power to dismiss the whole of the complaint under s 102 of the ADA (for the reason in s 92(1)(b) of the ADA Act) as s 102 of the ADA Act confers power on the Tribunal at ‘any stage in proceedings relating to a complaint’.

69. The Tribunal is of the view that it is appropriate and specific to this case, which is a complaint referred to the Tribunal under the ADA Act, to exercise the Tribunal’s powers in ss 102 and 92(1)(b) of the ADA to dismiss the whole of Mr Ferrington’s complaint. This is on the basis that the Tribunal has no jurisdiction because it is a matter which involves federal jurisdiction and therefore no further action should be taken by the Tribunal in respect of the complaint.

70. The Tribunal is satisfied that it has incidental or anterior jurisdiction to determine the limits of its own authority, and upon finding that it does not have jurisdiction, act on that determination and make an order dismissing the whole of the complaint under s 102 of the ADA.

71. Although, as stated in BDK, s 55(1)(b) of the NCAT Act is to be given a reasonably broad connotation, and as held in Davis, empowers the Tribunal to govern its own processes so that they are not abused, the Tribunal does not consider that it is a proper exercise of discretion in the circumstances of this case to dismiss the proceedings pursuant to s 55(1) of the NCAT Act on the basis that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance. Further, as observed in Blanch v Smith, none of the subsections in s 55(1) of the NCAT Act refer to dismissal based on a lack or want of jurisdiction.

Conclusion

72. The Tribunal has determined that it has no jurisdiction to determine Mr Ferrington’s complaint because it is a matter which involves federal jurisdiction due to the rights and duties that have arisen in the cases of both parties which owe their existence to a federal law or depends on federal law (the FWA) for its enforcement.

73. The Tribunal is of the view that it is appropriate to dismiss the whole of Mr Ferrington’s complaint pursuant to ss 102 and 92(1)(b) of the ADA as the Tribunal has no jurisdiction because it is a matter which involves federal jurisdiction and therefore no further action should be taken by the Tribunal in respect of the complaint.

74. As the Tribunal has dismissed the whole of the complaint on the basis that it does not have jurisdiction to determine the complaint as it involves federal jurisdiction, it remains opens to Mr Ferrington to make an application to an authorised court under s 34B of the NCAT Act: Gaynor v Burns [2025] NSWSC 185, [112].

Order

75. Pursuant to ss 102 and 92(1)(b) of the ADA, the Tribunal dismisses the whole of Mr Ferrington’s complaint.

76. If either party seeks costs of the proceedings they are to notify the Tribunal within 21 days of the date of this decision. Further directions will then be made by the Tribunal, if costs are sought.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

06 May 2025 - Paragraphs 68, 69, 70, 73 and 75 are references to ADA Act it should just ADA

14 July 2025 - Amendment to party representation.

Decision last updated: 14 July 2025