FEDERAL COURT OF AUSTRALIA
J.J. Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53
Citation: J.J. Richards & Sons Pty Ltd v Fair Work Australia
[2012] FCAFC 53Parties: J.J. RICHARDS & SONS PTY LTD and AUSTRALIAN MINES AND METALS ASSOCIATION INC. v FAIR WORK AUSTRALIA and TRANSPORT WORKERS' UNION OF AUSTRALIA File number: VID 812 of 2011 Judges: JESSUP, TRACEY AND FLICK JJ Date of judgment: 20 April 2012 Catchwords: INDUSTRIAL LAW – protected action ballot order – no need for bargaining with employer to have commenced
STATUTORY CONSTRUCTION – need to promote object or purpose of legislation – not a warrant to re-draft legislation
REMEDIES – refusal in exercise of discretion – lack of utility
Legislation: Acts Interpretation Act 1901 (Cth) s 15AA
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 16
Fair Work Act 2009 (Cth) ss 3, 50, 54, 171 – 173, 180 – 182, 185, 186, 228 – 230, 231, 236 – 240, 242, 243, 408 – 411 – 413, 415, 418, 436 – 443, 460, 539, 546, 562, 570
Federal Court of Australia Act 1976 (Cth) s 20, 22, 23
Migration Act 1958 (Cth) s 424A
Sex Discrimination Act 1984 (Cth)
Industrial Arbitration Act 1940 (NSW)
Infertility Treatment Act 1995 (Vic) s 8Cases cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, cited
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41, 239 CLR 27, cited
Application of The News Corp Ltd, Re (1987) 15 FCR 227, citedAustralian Boot Trade Employés’ Federation v Whybrow & Co (1910) 11 CLR 311, cited
Carey v President of the Industrial Court of Queensland [2003] QSC 272, considered
Dallikavak v Minister for Immigration and Ethnic Affairs (1985) 9 FCR 98, cited
Doyle v Chief of General Staff (1982) 71 FLR 56, cited
Ex parte Malouf; Re Gee (1943) 43 SR (NSW) 195, cited
Ex parte Metropolitan Meat Industry Board; Re Australasian Meat Industry Employees Union, New South Wales Branch [1972] 1 NSWLR 259, considered
Footscray City College v Ruzicka [2007] VSCA 136, 16 VR 498, cited
Grey v Pearson (1857) 6 HLC 61, considered.
J.J. Richards & Sons Pty Ltd v Transport Workers’ Union of Australia [2011] FWAFB 3377, cited
Jupp v Computer Power Group Ltd (1994) 122 ALR 711, 54 IR 248, cited
McBain, Re; Ex parte Australian Catholic Bishops Conference [2002] HCA 16, 209 CLR 372, considered
Mills v Meeking (1990) 169 CLR 214, considered
Minister for Communication, Re; Ex parte NBN Ltd (1986) 14 FCR 344, 12 ALD 150, cited
Minister for Immigration and Citizenship v Hart [2009] FCAFC 112, cited
Minister for Immigration and Multicultural Affairs v Lim [2001] FCA 512, 112 FCR 589, cited
R v Collins; Ex parte ACTU Solo Enterprises Pty Ltd (1976) 50 ALJR 471, cited
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone…
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- Case
- [2012] FCAFC 53
- Decision Date
CaseChat Overview and Summary
The court considered that the power to order a protected action ballot under section 443(1) of the Fair Work Act did not require any preconditions, such as the commencement of bargaining with the employer. The court held that the primary purpose of the legislation was to promote its object or purpose, and not to warrant a re-drafting of the law. The court emphasised that the refusal to exercise the discretion to order a protected action ballot must be based on the lack of utility of the order, and not on any arbitrary or capricious grounds. The court also noted that the ambit of the power conferred by section 443(1) of the Fair Work Act should ideally be resolved by a Full Court of this Court.
The court concluded that both of the decisions made by Fair Work Australia were valid exercises of the power conferred by section 443(1) of the Fair Work Act. The court found that there was no limitation on the invocation of section 443(1) such that it could only be exercised where the requirements of Part 2-4 of the Fair Work Act, including section 173, had also been satisfied. The court also found that there was no power to order costs in the present proceeding. The application filed by the employer on 29 July 2011 was dismissed, and there were no orders as to costs.
The orders of the court were that the application be dismissed, and there be no orders as to costs. The entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011. This case highlights the importance of understanding the scope of the powers conferred by the Fair Work Act and the need for careful consideration of the statutory construction of the legislation.
Orders
Orders of the court
1. The application be dismissed.
2. There be no orders 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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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