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JJ Richards & Sons Pty Ltd v Fair Work Australia

JJ Richards & Sons Pty Ltd v Fair Work Australia

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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 53

Parties: 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 8

Cases 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, cited

Australian 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FCAFC 53
Decision Date: 20 April 2012

CaseChat Overview and Summary

The case of JJ Richards & Sons Pty Ltd v Fair Work Australia involved a dispute between an employer and the Fair Work Commission, previously known as the Australian Industrial Relations Commission. The employer, JJ Richards & Sons Pty Ltd, challenged the legality of two decisions made by Fair Work Australia, which had authorised a protected action ballot under section 443(1) of the Fair Work Act. The decisions in question were made on 16 February 2011 and 1 June 2011. The legal issues before the court were whether the power conferred by section 443(1) of the Fair Work Act could be exercised without the need for bargaining with the employer to have commenced, and whether the statutory construction of the legislation warranted a re-drafting of the law.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

There is also much to be said for the ambit of the power conferred by s 443(1) being resolved by a Full Court of this Court. Section 443(1) is a provision which may well be invoked in many and varied industrial contexts.CONCLUSIONS Both of the decisions made by Fair Work Australia, the first being made by a Commissioner on 16 February 2011 and the second being made on 1 June 2011, were a valid exercise of the power conferred by s 443(1) of the Fair Work Act. Section 443(1) is not subject to any limitation such that it can only be invoked where the requirements of Part 2-4 of the Fair Work Act, including s 173, have also been satisfied. It was common ground between the parties that there is no power to order costs in the present proceeding. The Application as filed on 29 July 2011 should be dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		J.J. Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53
Parties:		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 8
Cases 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, cited Australian 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…