Gordonstone Coal Management Pty Ltd v Australian Industrial Relations Commission

[1999] FCA 797

FEDERAL COURT OF AUSTRALIA

Gordonstone Coal Management Pty Ltd v Australian Industrial Relations Commission [1999] FCA 797

Workplace Relations Act 1996 (Cth) s 89A(1)(a)

Re McJannet; Ex parte Australian Workers’ Union of Employees, Queensland (1997) 189 CLR 654

GORDONSTONE COAL MANAGEMENT PTY LTD v AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

VG 200 of 1998

BLACK CJ, HEEREY & GOLDBERG JJ
18 JUNE 1999
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 200 of 1998

BETWEEN:

GORDONSTONE COAL MANAGEMENT PTY LTD
Applicant

AND:

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Second Respondent

JUDGE:

BLACK CJ, HEEREY & GOLDBERG JJ

DATE OF ORDER:

18 JUNE 1999

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.A writ of prohibition issue directed to the first respondent prohibiting it from proceeding further in relation to notifications of dispute C No 20404 of 1997 and C No 40189 of 1997 otherwise than on the basis that s 89A of the Workplace Relations Act 1996 (Cth) applies to the determination of those disputes.

2.        Each party bear its own costs of and incidental to the proceeding.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 200 of 1998

BETWEEN:

GORDONSTONE COAL MANAGEMENT PTY LTD
Applicant

AND:

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
First Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Second Respondent

JUDGE:	BLACK CJ, HEEREY & GOLDBERG JJ
DATE:	12 JUNE 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT ON COSTS

1. On 25 March 1999 the Court handed down its reasons for concluding that the determination by the Australian Industrial Relations Commission (“the Commission”) of disputes arising under the certified agreement between Gordonstone Coal Management Pty Ltd (“Gordonstone”) and the Construction, Forestry, Mining and Energy Union (“the Union”) and referred to the Commission pursuant to cl 21 and cl 22 of the agreement was not outside the operation of s 89A(1)(a) of the Workplace Relations Act 1996 (Cth) (“the Workplace Relations Act”). The Court concluded that the Full Bench of the Commission was in error when it determined that any action taken by the Commission under cl 22 could not be seen as action which fell within s 89A(1) of the Workplace Relations Act.

2. In our reasons for judgment we invited the parties to make submissions about the relief, if any, that should be granted having regard to the conclusions we had reached.  The Court has now received submissions from Gordonstone and the Union. 

3. On 24 July 1997 the Full Bench handed down its decision referring the notifications of dispute to Commissioner Hodder for determination by him in accordance with its decision. The Full Bench concluded that any action taken by the Commission could not be characterised as fulfilling any of the three criteria set out in s 89A(1)(a), (b) and (c) of the Workplace Relations Act. The Full Bench’s conclusion was expressed in the following terms:

   “In the circumstances we will refer the notifications of dispute giving rise to this matter to Hodder C to be further dealt with and considered within the jurisdictional limits we have outlined.”

   As can be seen from the Court’s reasons the Court has found that the determination by the Commission of a dispute arising under the certified agreement and referred to it pursuant to cl 21 or cl 22 is subject to s 89A(1) of the Workplace Relations Act. Accordingly, it is not appropriate for Commissioner Hodder to deal with the notifications within the jurisdictional limits outlined by the Full Bench but rather in accordance with the Court’s reasons for judgment. Gordonstone submits that writs of certiorari and prohibition should issue to the extent to which the Commission has assumed jurisdiction under the dispute resolution procedure in the certified agreement on the basis that its jurisdiction was not subject to or restricted by s 89A of the Workplace Relations Act. The Union submits that no such writs should issue and that the only order that should be made is that the order nisi be discharged.

4. We consider that the matter cannot be left on the basis that the order nisi simply be discharged. In such circumstances Commissioner Hodder would, as a matter of record, be subject to a direction of the Full Bench to deal with the notifications within the jurisdictional limits outlined by the Full Bench. That would be contrary to our decision and it should be made clear, as a matter of record, that the notifications of dispute are to be dealt with by Commissioner Hodder on the basis that action he takes with respect to disputes referred under cl 22 is subject to s 89A(1) of the Workplace Relations Act. That is best dealt with not by the issue of a writ of certiorari but rather by the issue of a writ of prohibition prohibiting him from dealing with the notifications on the basis that any action taken by him is not action falling within s 89A(1) of the Workplace Relations Act.

5. We also sought further submissions from the parties on the issue of costs.  Having regard to our conclusion that a writ of prohibition should issue we are of the opinion that the matter of costs falls to be determined by reference to Re McJannet; Ex parte Australian Workers’ Union of Employees, Queensland (1997) 189 CLR 654.

6. The Union has informed the Court that Gordonstone is no longer the manager of the mine and no longer employs any person covered by the relevant award or the certified agreement.  However, the Court is dealing with a matter of jurisdiction and we consider, having regard to our reasons for judgment, that there should as a matter of record be an order correcting the jurisdictional error by the Full Bench to which we have referred.

7. In considering the issue of costs we note that three substantive issues were argued before the Court; whether there was an interstate element underpinning the certified agreement, whether the problem resolution procedures in cl 21 and cl 22 were invalid and whether s 89A of the Workplace Relations Act operated to limit the jurisdiction of the Commission to deal with any matter coming before it for decision under cl 21 or cl 22. The Union succeeded in respect of the first two issues and Gordonstone succeeded in respect of the third issue. The nature of these issues and the manner in which the matter was argued before the Court are such that in our view the appropriate order as to costs is that each party should bear its own costs of the proceeding.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black, and the Honourable Justices Heerey and Goldberg.

Associate:

Dated:  18 June 1999

Counsel for the Applicant:	Dr C Jessup QC and Mr R F Parry
Solicitor for the Applicant:	Corrs Chambers Westgarth
Counsel for the Respondent:	Mr S Howells
Solicitor for the Respondent:	R L Whyburn & Associates
Date of submission on Costs:	7, 14 April 1999
Date of judgment on Costs:	18 June 1999