Hancock v DP World Pty Ltd

Case [2024] FCA 116

FEDERAL COURT OF AUSTRALIA

Hancock v DP World Pty Ltd [2024] FCA 116  

File number(s): QUD 377 of 2022
Judgment of: MEAGHER J
Date of judgment: 22 February 2024
Catchwords:

 INDUSTRIAL LAW – Application for relief under s 39B of the Judiciary Act 1903 (Cth) and/or s 562 of the Fair Work Act 2009 (Cth) – Application against decision of Fair Work Commission (FWC) which dismissed application for an unfair dismissal remedy – Application against decision of the Full Bench of the FWC which refused permission to appeal the FWC decision – Whether each decision amenable to judicial review - Whether to exercise discretion to grant relief in relation to decision of the FWC - Whether decision of the Full Bench was affected by jurisdictional error or there is a compelling reason to overlook the Full Bench decision – Application dismissed

Legislation:

Fair Work Act 2009 (Cth) ss385, 387, 390(1), 394, 400, 562, 604, 613

Judiciary Act 1903 (Cth) s39B

Cases cited:

Australian Building and Construction Cmr v Construction, Forestry, Mining and Energy Union [2016] FCAFC 169

Australian Mines and Metals Association Inc v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCAFC 223

Broadspectrum (Australia) Pty Ltd v United Voice [2018] FCAFC 139

Construction, Forestry, Maritime, Mining and Energy Union v Mechanical Maintenance Solutions Pty Ltd (2022) 289 FCR 508

CZA19 v Federal Circuit Court of Australia (2021) 285 FCR 447

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

Dafallah v Fair Work Commission (2014) 225 FCR 559

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088

GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266

Hancock v DP World Brisbane Pty Ltd [2022] FWC 1406

Hancock v DP World Brisbane Pty Ltd [2022] FWCFB 142

Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166

Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82

Reliable Petroleum Pty Ltd v Fraser Murray [2017] FWCFB 5843

Toms v Harbour City Ferries Pty Limited (2015) 229 FCR 537

Trustee for the MTGI Trust v Johnston [2016] FCAFC 140

Waters v Australian Taxation Office (Cth) [2015] FCAFC 46
Division: Fair Work Division
Registry: Queensland
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 61
Date of hearing: 6 September 2023
Counsel for the Applicant: Mr P Boncardo
Solicitor for the Applicant: Maritime Union of Australia, Division Construction, Forestry, Maritime, Mining and Energy Union
Counsel for the First Respondent: Mr J Follett and Mr J McLean
Solicitor for the First Respondent: Kingston Reid
Solicitor for the Second Respondent: Australian Government Solicitor

ORDERS

QUD 377 of 2022
BETWEEN:

CRAIG HANCOCK

Applicant
AND:

DP WORLD BRISBANE PTY LTD

First Respondent

FAIR WORK COMMISSION

Second Respondent

ORDER MADE BY:

MEAGHER J

DATE OF ORDER:

22 FEBRUARY 2024

THE COURT ORDERS THAT:

1.The application is dismissed.

2.Pursuant to s 570 of the Fair Work Act 2009 (Cth), there be no order as to costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the

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Details
AGLC
Hancock v DP World Pty Ltd [2024] FCA 116
Case
[2024] FCA 116
Decision Date

CaseChat Overview and Summary

Hancock applied for relief under section 39B of the Judiciary Act 1903 (Cth) and section 562 of the Fair Work Act 2009 (Cth) against decisions made by the Fair Work Commission (FWC). The first decision was the dismissal of Hancock's application for unfair dismissal remedy, and the second was the Full Bench of the FWC's refusal to grant permission to appeal the FWC's initial decision. The court had to determine whether each decision was subject to judicial review, whether the discretion to grant relief should be exercised, and if the Full Bench's decision was affected by jurisdictional error or if there was a compelling reason to overlook the decision. The application was dismissed, and no order was made regarding costs under section 570 of the Fair Work Act 2009 (Cth).

The central legal issue was whether the two decisions made by the FWC were amenable to judicial review and if the Full Bench's decision to refuse permission to appeal was affected by jurisdictional error. Hancock argued that the Full Bench's decision was not conclusive and operative, and therefore both decisions could be subject to judicial review. The court considered the principles established in previous cases regarding the public interest test and the stringent nature of the appeal process. The Full Bench's refusal to grant permission to appeal did not constitute a conclusive and operative decision, meaning both the initial decision and the Full Bench's decision could potentially be subject to judicial review. However, the court found that the Full Bench's decision did not manifest any appealable error or injustice.

The court exercised its discretion not to grant relief regarding the Full Bench's decision, as there was no evidence of jurisdictional error or compelling reason to overlook the Full Bench's decision. The court found that the Full Bench's decision was made in accordance with the law and did not involve any significant error of fact or injustice. The court also noted that the Full Bench's decision did not grant permission to appeal due to the lack of an arguable case of appealable error, as established in previous cases. Therefore, the application for relief was dismissed, and no order was made regarding costs.

Orders

Orders of the court

1. The application is dismissed.

2. Pursuant to s 570 of the Fair Work Act 2009 (Cth), there be no order as to costs.

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

Background

Background to the litigation

In Reliable Petroleum Pty Ltd v Fraser Murray [2017] FWCFB 5843 at [7]-[9], the Full Bench of the Commission detailed the well-established principles with respect to the public interest test pursuant to s 400 of the Act:In the decision of the Full Court of the Federal Court in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 of the Act as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest: “... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. (Footnotes omitted)BACKGROUND The background to this matter is uncontroversial and is taken largely from the Commissioner’s Decision. The applicant commenced employment with the first respondent in 1996, initially as an Australian Vocational Trainee and, after obtaining the appropriate qualification, as a stevedore, at first on a casual basis then, on a permanent part time basis for twelve months, and thereafter on a full-time basis. At the time of his dismissal, the applicant had been employed by the first respondent for approximately 25 years. At the time that the applicant was dismissed, he was assigned to work as a “controller”. In that capacity, his responsibilities included operating a computer system that directed the operation of automated cranes, unloading trucks or repositioning containers at the terminal. The role required that he override the computer system when it malfunctioned, to ensure the completion of the function manually. The applicant was elected a member of the Employee Representative Committee (ERC) in around 2002 and has participated in the Part A negotiations, as elected by the ERC, in 2016 and 2020. As a member of the ERC the applicant had also acted as a support person for employees in disciplinary meetings and as an advocate for members. The applicant was also a member of the Health and Safety Committee for about 13 years from 2002.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 604 provides: 604 Appeal of decisions(1) A person who is aggrieved by a decision:(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or(b) made under the Registered Organisations Act by: (i) the General Manager (including delegate of the General Manager); or (ii) the Registered Organisations Commissioner (including a delegate of the Commissioner);may appeal the decision, with the permission of the FWC.(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).(3) A person may appeal the decision by applying to the FWC. Despite the Note to s 604(2), s 400 of the Act provides the following with respect to appeals from decisions made under Part 3-2 of the Act:400 Appeal rights(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact In Reliable Petroleum Pty Ltd v Fraser Murray [2017] FWCFB 5843 at [7]-[9], the Full Bench of the Commission detailed the well-established principles with respect to the public interest test pursuant to s 400 of the Act:In the decision of the Full Court of the Federal Court in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 of the Act as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest: “... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. (Footnotes omitted)BACKGROUND

Ratio Decidendi

Legal Principle Established

In the instance that this Court finds that the Commissioner’s Decision is not "conclusive and operative", the following relief was sought pursuant to s 39B of the Judiciary Act and s 562 of the Act in relation to the Appeal Decision: 1.A writ of certiorari issue pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) removing into this Court and quashing the order and decision of the Fair Work Commission in matter C2022/3596 issued 2 September 2022.2.A writ of mandamus issue pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) compelling the Fair Work Commission to proceed to determine the applicant’s application for a remedy under Part 3-2 of the FW Act in Matter Number C2022/3596 in accordance with law.3.Order that the Full Bench of the Fair Work Commission that hears and determines the applicant’s appeal be differently constituted to that which made the order and handed down the decision on 2 September 2022.4.Such further or other orders as this Court thinks appropriate.CONSIDERATIONWhich decision is amendable to judicial review? In this proceeding, there are two decisions, being the primary decision made by the Commissioner, and the interlocutory decision made by the Full Bench refusing permission to appeal. The Full Bench, in refusing permission to appeal, did not conduct a substantive appeal and did not affirm or replace the decision made by the Commissioner. The parties’ written submissions dealt extensively with the question of whether the “conclusive and operable decision” subject to judicial review, was that of the Commissioner or of the Full Bench. At the hearing, the applicant initially argued that the conclusive and operable decision must be that of the Commissioner as permission to appeal was not granted by the Full Bench. The applicant relied on Australian Building and Construction Cmr v Construction, Forestry, Mining and Energy Union [2016] FCAFC 169; 247 FCR 138 (Barker, Rangiah and Wigney JJ) (ABCC v CFMEU) as authority for there being no need to establish jurisdictional error in relation to the Full Bench’s refusal of permission to appeal before this Court can grant a constitutional writ with respect to the Commissioner’s decision. In that case, the Full Court acknowledged at [37] that it is theoretically possible that there could be two decisions, both of which have continuing legal effect, and both amenable to being quashed. These decisions include first, a primary decision of the Commission, and secondly a decision made by the Full Bench refusing permission to appeal from the primary decision. At [39], the Full Court compared that scenario to the situation where the Full Bench grants permission to appeal and makes a decision either affirming the primary decision or replacing the primary decision in some way, in which case the appealed decision would be the conclusive and operative decision, and constitutional writs could not be issued for the primary decision. At [45], the Full Court noted that in the application before it, where the Full Bench did not grant permission to appeal, the appeal decision is not conclusive and operative and therefore both the primary decision and the decision of the Full Bench may be amenable to constitutional writs.