Jarvis v Imposete Pty Ltd
[2007] FMCA 1825
•22 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JARVIS v IMPOSETE PTY LTD | [2007] FMCA 1825 |
| INDUSTRIAL LAW – Penalties for breach of award – breaches occurring prior to Work Choices amendments – application made to eligible court after Work Choices amendments – jurisdiction of Federal Magistrate’s Court – whether transitional legislation – presumptions concerning procedural or substantive amendments – whether penalties should be determined by reference to former provisions – application for summary dismissal refused. |
| Acts Interpretation Act 1901 (Cth), s.8 Federal Magistrates Act (Cth), s.39 Federal Magistrates Court Rules (Cth), r.8.02 Workplace Relations Act 1996 (Cth), ss.177A, 178, 717, 719, 824, 847 Workplace Relations Amendment (Work Choices) Act 2005 (Cth) Work Place Regulations 2006 (Cth), reg.7.2.19 |
Fisher v Minister for Immigration & Citizenship [2007] FCA 591
Matthews v Australia Postal Corporation [2007] FMCA 1174
Maxwell v Murphy (1957) 96 CLR 261
Minister for Home & Territories v Smith (1924) 35 CLR 120
R v Hassell; Ex parte Norman R v Hassell; Ex parte Pride (1984) 1 FCR 387
SZDLR v Minister for Immigration (2005) 144 FCR 368
| Applicant: | INSPECTOR ROBERT JARVIS (OFFICE OF WORKPLACE SERVICES) |
| Respondent: | IMPOSETE PTY LTD (ACN 002 880 097) |
| File Number: | SYG 853 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 22 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 22 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Newall |
| Solicitors for the Applicant: | Fisher Cartwright Berriman |
| Counsel for the First Respondent: | Mr M Cleary |
| Solicitors for the Respondent: | Moray & Agnew |
ORDERS
The respondent’s application in a case filed on 15 August 2007 is refused.
The applicant’s application in a case filed on 21 August 2007 is refused.
The respondent must file and serve all affidavits relied upon no later than 31 October 2007.
The applicant must file and serve any affidavits in reply no later than 30 November 2007.
The applicant must file and serve an outline of submissions and list of authorities before 14 December 2008.
The respondent must file and serve an outline of submissions and list of authorities before 25 January 2008.
The application is set down for final hearing as to jurisdiction and penalty on 30 January 2008 at 10.15 am.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 853 of 2007
| INSPECTOR ROBERT JARVIS (OFFICE OF WORKPLACE SERVICES) |
Applicant
And
| IMPOSETE PTY LTD (ACN 002 880 097) |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The principal application in this proceeding is brought by an inspector under s.719 of the Workplace Relations Act 1996 (Cth) as amended by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth), seeking the imposition of penalties for breaches of the Federal Meat Industry (Retail and Wholesale) Award (2000) (AW805114) and supplementary orders. I have before me today two interlocutory applications, in which the respondent seeks the summary dismissal of the application on the ground of incompetence, and the applicant seeks the transfer of the proceeding to the Federal Court.
The respondent argues that this court has no jurisdiction to impose penalties for breaches occurring before the commencement of the Work Choices amendments. The applicant seeks a transfer of the proceeding, but only if I am persuaded by the respondent’s contention, and only if it appears that the Federal Court has a jurisdiction which is not subject to the same challenge.
The principal application alleges that the respondent breached the award by under-paying one of its employees, when it incorrectly classified him as an indentured apprentice. The respondent has made admissions as to the alleged conduct in an agreed statement of facts. This makes it clear that the events constituting the breaches of the award occurred between May and November 2005. This was prior to the commencement of the Work Choices amendments on 27 March 2006.
The current provisions of s.719 comprise the previously numbered s.178, with amendments made by the Work Choices Act. The amendments altered the provisions of that section which identified the courts with jurisdiction to impose penalties, in particular, by extending the jurisdiction to this Court. They also made uniform the penalties that might be imposed by all courts.
Old s.178 separated the powers given to “the Court”, which was then - as now - defined as the Federal Court, from the powers given to a “court of competent jurisdiction”. This was defined in old s.177A, to include State intermediate, magistrates’ and industrial courts. Old s.178(1) provided that “a penalty may be imposed by the Court or by a court of competent jurisdiction” on an organisation or person bound by an award or order of the Commission. The maximum penalties which could be imposed were provided in s.178(4), as it stood before the Work Choices amendments:
(4)The maximum penalty that may be imposed under subsection (1) for a breach of a term of an award, order or agreement is:
(a)where the penalty is imposed by the Court:
(i) if the breach is taken to have been committed under a provision included in an award or order under paragraph 111(1)(e)–150 penalty units for a body corporate or 30 penalty units in other cases; and
…
(ii) in any other case–300 penalty units for a body corporate or 60 penalty units in other cases; and
(b)where the penalty is not imposed by the Court–300 penalty units for a body corporate or 60 penalty units in other cases.
At the time when the breaches of the award admitted by the respondent occurred, the maximum provided under s.178(4)(a)(i) was “$5,000 for a body corporate or $1,000 in other cases”, and under paragraphs (a)(ii) and (b) it was “$10,000 for a body corporate or $2,000 in other cases”. Neither counsel identified the amendment which between 2004 and 2005 increased these penalties by reference to “penalty units”.
Old s.111(1)(e) allowed the Commission to include in an award a provision which had the effect that a separate breach would occur on each day on which non-observing conduct occurred. It is unclear to me whether the present Award contained such a provision. If it did, then the maximum penalties which could have been imposed by the Federal Court under old s.178(4)(a)(i), may have differed from those which could have been imposed by a State court under old s.178(4)(b). This was a matter which was insufficiently explored in the submissions of both counsel.
After the Work Choices amendments, s.178 was renumbered to s.719. Section 719(1) gave the jurisdiction to impose a penalty to an “eligible Court”. This is defined in s.717, by reference to a list of courts including “the Court” and this Court, as well as the previously identified State courts. Section 719(4) now makes uniform provision for a maximum penalty:
(4) The maximum penalty that may be imposed under subsection (1) for a breach of an applicable provision is:
(a) 60 penalty units for an individual; or
(b) 300 penalty units for a body corporate.
Counsel for the respondent informed me that the reference to 300 penalty units currently is an amount of $33,000. I was not told whether this has increased since the commencement of the Work Choices amendments. There does, however, appear to have been a significant increase in maximum penalties which can be imposed in all courts for breaches of the award, since the time when the presently admitted breaches occurred.
The respondent's counsel submitted today that the Work Choices amendments to s.178 effected substantive changes to the law in relation to liabilities which accrued before the amendments. He argued that, in the absence of any relevant transitional provisions, s.8 of the Acts Interpretation Act 1901 (Cth) or comparable common law presumptions of statutory interpretation, requires the amendments to be construed as not intending the civil recovery of penalties under the amended provision for past liabilities. He argued that this Court would not have that jurisdiction as an “eligible court”, and also that no other of the listed eligible courts would have jurisdiction to impose penalties under new s.719(4). He also argued that no eligible court had jurisdiction to impose penalties which were determined by reference to the old penalty provisions.
This argument, which was developed orally by counsel, went beyond the contention which had been anticipated by the applicant and by the Court from previous correspondence and counsel’s written submission. This had suggested that the respondent’s objection to jurisdiction was specific to this Court, on the basis that it had not been given jurisdiction at the time of the alleged breaches. It did not appear to challenge the jurisdiction of all eligible courts to impose penalties under s.719 in relation to pre-amendment breaches.
The applicant's interlocutory application sought to avoid the anticipated objection, by inviting a transfer of the matter to the Federal Court to avoid any doubt in relation to jurisdiction. On current authority, a transfer can be made effectively, even where this Court itself lacks jurisdiction (see Fisher v Minister for Immigration & Citizenship [2007] FCA 591). However, as I have indicated above, the argument developed by the respondent challenges the jurisdiction of any eligible court to entertain the present application.
The Work Choices amendments and their accompanying regulations are complex, and I have been guided by the researches of counsel into those provisions. Both counsel submitted that there was no transitional provision attaching to the expansion of the list of courts given jurisdiction to impose civil penalties for breach of awards, nor to the amendments to s.719 concerning the maximum penalties which may be imposed in proceedings under s.719. In particular, there were no transitional provisions directly explaining how these amendments were to apply in relation to breaches occurring before the date of amendment.
As well as identifying this Court as an eligible court in relation to compliance proceedings under Part 14, the Work Choices Act inserted in the Workplace Relations Act 1996 (Cth), s.847(4):
Jurisdiction of Court
…
(4)The Federal Magistrates Court has jurisdiction with respect to matters arising under this Act in relation to which:
(a)applications may be made to it under this Act; or
(b)actions may be brought in it under this Act; or
(c)questions may be referred to it under this Act; or
(d)penalties may be sued for and recovered under this Act; or
(e)prosecutions may be instituted for offences against this Act.
Note:A proceeding pending in the Federal Magistrates Court may be transferred to the Federal Court: see Part 5 of the Federal Magistrates Act 1999 .
Prima facie, the unqualified terms of this investiture of general jurisdiction on the Court, and of the inclusion of this Court in the list of “eligible courts” for the purposes of Part 14 of the Workplace Relations Act, suggests that it was intended that penalties should be recoverable in this Court in relation to breaches occurring at any time, whether before or after the amendment making this Court an eligible court.
This intent appears to be confirmed by implication in reg.2.19 found in Ch.7, Pt.2, Div.13, of the Workplace Regulations 2006 (Cth). This provides:
Enforcement of rights and obligations
(1)Unless the contrary intention appears in a provision of:
(a)the Act; or
(b)the Work Choices Act; or
(c)regulations made under the Act or the Work Choices Act;
the amendments made by the Work Choices Act do not affect the enforcement in a court of rights and obligations that arose under the pre‑reform Act.
(2)Subregulation (1) applies whether or not proceedings had been commenced in a court before the reform commencement.
There is no special definition of ‘court’ applicable to this regulation, and its generality would appear to encompass proceedings commenced in this Court after the ‘reform commencement’. This regulation also, in my opinion, indicates an intent against the respondent’s submission that the Work Choices amendments to s.178 of the Workplace Relations Act 1996 (Cth) produced a lacuna, whereby no proceeding for penalties could be brought under s.719 in any eligible court for breach of an award occurring before the amendments. Reg.7.2.19(2) appears to make clear that it is intended that such proceedings may be commenced, as well as continued, in relation to pre-amendment breaches. I can see no reason why they cannot be characterised as “the enforcement in a court of rights and obligations that arose under the pre-reform Act”.
In any event, in my opinion, established principles in relation to amendments which expand or invest new jurisdiction in a court to enforce liabilities arising before their commencement, support a presumption that this Court's new jurisdiction is applicable in relation to accrued liabilities, in the absence of a transitional provision to the contrary. This is the principle identified by Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261 at 267:
Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed.
Fullagar J at 286 stated in relation to “statutes which deal with the pursuit of remedies” that “the presumption is that the enactment applies in all proceedings commenced after it became law”.
In Minister for Home & Territories v Smith (1924) 35 CLR 120, this presumption was applied to legislation which invested a new jurisdiction in the High Court to enforce arbitral awards. Isaacs ACJ and Starke J said at p.128: “if the subject matter of the Act is new procedure then the Act applies to bygone transactions and is retrospective unless there is some good reason why it should not be so.” The principle has also been applied to new jurisdictions invested in the Federal Court and this Court (see R v Hassell; Ex parte Norman R v Hassell; Ex parte Pride (1984) 1 FCR 387 at [389] and SZDLR v Minister for Immigration (2005) 144 FCR 368 at [28]).
In my opinion, in the absence of any intent shown in the Work Choices legislation that this Court would not have jurisdiction as an eligible Court under Part 14 to determine applications to impose penalties under s.719 in relation to breaches occurring prior to the Work Choices amendments, the legislature must be presumed to have intended that this Court would have that jurisdiction.
I therefore find that this Court has jurisdiction in the present matter which is concurrent with the jurisdiction of the Federal Court. The reason suggested by the respondent for transferring the proceeding to the Federal Court therefore does not arise. No other reason for a transfer was suggested, and I would therefore refuse the respondent’s interim application. It appears to be common ground between the parties that this Court would be the most convenient forum for addressing the fixing of penalties in this case.
Since I have found that this Court has unqualified jurisdiction under s.719, and can find no legislative intent that an eligible court should not have jurisdiction under that section to address the respondent’s liabilities to penalties in relation to breaches of an award occurring before the Work Choices amendments, I would also refuse the applicant’s interim application for summary dismissal of the principal application. I consider this Court is competent to address and determine the applicable and appropriate penalties for which the respondent should be held liable for its admitted breaches of the award.
Whether the s.719 jurisdiction allows an eligible court to fix penalties by reference to the current maximum, or only by reference to the maximums provided under the Work Place Relations Act at the time of the breaches, is not a matter which I need to decide today. Neither counsel presented submissions fully addressing that issue, which requires exploration of authorities in relation to retrospectivity such as are discussed in Pearce and Geddes; Statutory Interpretation in Australia, 5th edition (2001), at [9.19]. I shall need to receive further submissions on this issue, and shall address it at the final hearing which I propose to appoint.
[Recorded but not transcribed]
In relation to costs, the applicant seeks costs of today’s hearing on the basis that he has been substantially successful in obtaining an order dismissing the respondent’s challenge to jurisdiction. Although I have also refused the applicant’s own interlocutory application for transfer, it was argued that this had been premised upon the jurisdictional argument which had been raised in correspondence, and which I have rejected.
If this were a jurisdiction where normal principles in relation to costs are applied, I would without much hesitation have awarded costs to the applicant in relation to today's hearing and both interlocutory applications. However, counsel for the applicant accepted that s.824 of the Workplace Relations Act is applicable to this proceeding. It provides:
824 Costs only where proceeding instituted vexatiously etc.
(1) A party to a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 663) must not be ordered to pay costs incurred by any other party to the proceeding unless the first‑mentioned party instituted the proceeding vexatiously or without reasonable cause.
(2) Despite subsection (1), if a court hearing a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 663) is satisfied that a party to the proceeding has, by an unreasonable act or omission, caused another party to the proceeding to incur costs in connection with the proceeding, the court may order the first‑mentioned party to pay some or all of those costs.
(3) In subsections (1) and (2):
costs includes all legal and professional costs and disbursements and expenses of witnesses.
The test of a proceeding brought ‘vexatiously or without reasonable cause’ is very demanding (see the authorities I cited in Matthews v Australia Postal Corporation [2007] FMCA 1174 at [24] – [30]). I would not apply it to the respondent’s interim application in this case, assuming that it can be identified as “a proceeding” within s.824(1).
In relation to s.824(2), I have not been referred to any authorities on the test of ‘unreasonable act or omission’ in the course of a proceeding. Applying its ordinary language, I am not persuaded in the present case that the respondent’s objection to jurisdiction was ‘unreasonably’ taken, and argued today, notwithstanding that I have rejected it for the reasons set out above. The legislation is complex, and the point appears to have been undecided. Moreover, today’s proceedings have flushed out a significant issue requiring further consideration when I come to fix penalties, being whether this should proceed by reference to the present maximum or the previous maximums. Taking into account the circumstances of both interlocutory applications which were listed today, I am not persuaded that the test in s.824(2) has been satisfied, nor that it would be appropriate to exercise the discretion conferred by that provision.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 2 November 2007
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