Johnson v Cub Pty Ltd

Case [2021] FCAFC 219


FEDERAL COURT OF AUSTRALIA

Johnson v CUB Pty Ltd [2021] FCAFC 219  

File number: VID 129 of 2021
Judgment of: BROMWICH, O’CALLAGHAN AND COLVIN JJ
Date of judgment: 3 December 2021
Catchwords: INDUSTRIAL LAW – application for judicial review of a decision of the Full Bench of the Fair Work Commission quashing a Fair Work Commissioner’s decision to reinstate the applicant insofar as it required him to be reinstated to the first respondent’s brewery site – whether the Full Bench fell into jurisdictional error by reason of:
(1) misunderstanding the nature of its jurisdiction, misconceiving its duty, failing to apply itself to the question which ss 390 and 391 of the Fair Work Act 2009 (Cth) prescribes and/or acting on a wrong principle; or
(2) making only a portion of the order made by the Commissioner that it was not empowered by s 391 to make – held: application dismissed.
Legislation:

Fair Work Act 2009 (Cth) ss 390, 391

Industrial Relations Act 1988 (Cth) s 170EE(1)(a)(ii)

Judiciary Act 1903 (Cth) s 39B

Explanatory Memorandum to the Fair Work Bill 2008 (Cth) [r.5], [r.9], [r.360]

Cases cited:

Anthony Smith & Associates Pty Ltd v Sinclair (1996) 67 IR 240

Athens v Randwick City Council [2005] NSWCA 317; 64 NSWLR 58

Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483

Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539

Bropho v Western Australia (1990) 171 CLR 1

Coco v The Queen (1994) 179 CLR 427

Conlon v Sandlewood Aboriginal Projects Limited [2017] FWC 3186

Fair Work Ombudsman v Crystal Carwash Café Pty Ltd (No 2) [2014] FCA 827

Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034; 152 ALD 209

Fryar v Systems Services Pty Ltd (1995) 130 ALR 168

George v Rockett (1990) 170 CLR 104

Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622

Kool v Adecco Industrial Pty Ltd [2016] FWC 925

Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196

Lim v Comcare [2019] FCAFC 104; 165 ALD 217

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; 260 CLR 232

Nguyen v Vietnamese Community in Australia [2014] FWCFB 7198

Pettifer v MODEC Management Services Pty Ltd [2016] FWCFB 5243; 261 IR 439

Potter v Minahan (1908) 7 CLR 277

R v Kearney; Ex parte Jurlama (1984) 158 CLR 426

Raffoul v Blood Transfusion Service of the Australian Red Cross Society (1997) 76 IR 383

Re Bolton; Ex parte Beane (1987) 162 CLR 514

Regional Express Holdings Ltd v Richards [2010] FWAFB 8753; 206 IR 17

Repatriation Commission v Nation (1995) 57 FCR 25

Ross v Lane Cove Council [2014] NSWCA 50; 86 NSWLR 34

Technical and Further Education Commission (t/a TAFE NSW) v Pykett [2014] FWCFB 714; 240 IR 130

Technical and Further Education Commission v Pykett (No 1) [2014] FCA 727

Division: Fair Work Division

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AGLC
Johnson v CUB Pty Ltd [2021] FCAFC 219
Case
[2021] FCAFC 219
Decision Date

CaseChat Overview and Summary

In Johnson v Cub Pty Ltd, Mr Chaya Johnson sought reinstatement to his former position as a C7 Maintenance Fitter at the CUB brewery site in Abbotsford. Mr Johnson, an employee of Chelgrave Contracting Australia Pty Ltd, a labour hire company, obtained an order for reinstatement against Chelgrave. CUB, the entity that employed Mr Johnson for the period in question, did not seek to be joined as a party to the proceedings. CUB subsequently appealed to the Full Bench of the Fair Work Commission (FWC), which quashed the reinstatement order on the basis that Chelgrave lacked the contractual power to compel CUB to allow Mr Johnson access to their site after his removal. The Full Bench concluded that reinstatement was inappropriate in all the circumstances.

The central legal issue before the court was whether the Full Bench of the FWC erred in quashing the reinstatement order. Specifically, the court had to determine if the Full Bench fell into jurisdictional error by misconceiving its duty, misunderstanding its jurisdiction, failing to apply itself to the prescribed question, or acting on a wrong principle. Additionally, the court considered whether the Full Bench made only a portion of the order that it was not empowered by s 391 to make.

The court concluded that both grounds of review failed. It found that the Full Bench had correctly identified that Chelgrave lacked the contractual power to force CUB to allow Mr Johnson access to their site after his removal. The court held that it was inappropriate to remit the matter to the Full Bench given the speculative nature of any potential compensation claim, especially since Mr Johnson had already received a redundancy payment and back pay dependent on the reinstatement order. Consequently, the court dismissed the originating application for judicial review.

The court made the following order: 1. The originating application be dismissed.

Orders

Orders of the court

1. The originating application be dismissed.

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

No application was made to amend ground 2 to accommodate this conclusion. Even if such an application to amend had been made, it is doubtful leave would have been granted because of the futility of granting relief in circumstances in which Mr Johnson cannot now be restored to his former position. This is especially so given the combination of his redundancy payment, and back pay, both dependent upon reinstatement having validly been ordered, exceeds any compensation that he could have been awarded instead. It would not have been appropriate to remit the matter to the Full Bench in circumstances where there was nothing more than speculation advanced before this Court to suggest that Mr Johnson might possibly be able to secure an award of compensation without both the payments that were made to him being offset to the point of nothing being payable at all, or even theoretically at least, some amount being required to be paid back.Conclusion As both grounds of review have failed, the originating application must be dismissed. Mr Chaya Johnson sought an order by the Fair Work Commission (FWC) for his reinstatement to work at the premises of CUB Pty Ltd in Abbotsford. He did not claim to be an employee of CUB. Rather, he claimed to be an employee of Chelgrave Contracting Australia Pty Ltd (Chelgrave), a labour hire company. The proceedings he brought in the FWC were against Chelgrave. CUB was put on notice that he sought reinstatement to work at the CUB premises in Abbotsford but it did not seek to be joined as a party. Mr Johnson succeeded in obtaining an order for reinstatement to what was described as his former position as C7 Maintenance Fitter at the CUB site in Abbotsford. CUB sought and obtained leave to appeal to the Full Bench of the FWC. Before the Full Bench, the contract between CUB and Chelgrave was received. The contract provided for Chelgrave to provide services and personnel to CUB for an agreed term. The personnel requirements were specified in a schedule to the contract. The contract provided that CUB may issue a notice to Chelgrave requiring Chelgrave to remove any personnel from the performance of the services. It further provided that if such a notice was issued that Chelgrave must remove the person from the performance of the services and, at Chelgrave’s cost, replace the person with a suitable replacement. There was no dispute that a notice had been given by CUB to Chelgrave in respect of Mr Johnson. The Full Bench expressed its conclusion on the appeal in the following terms:Having had the benefit of seeing the Contract, it is clear to us that [Mr Johnson] was incapacitated from working at [CUB’s Abbotsford site] because Chelgrave has no contractual power to force [CUB] to allow [Mr Johnson] access to their site after his removal. The order to reinstate [Mr Johnson] to the Abbotsford site was inappropriate in all the circumstances. The phrase ‘inappropriate in all the circumstances’ reflects the terms of s 390 of the Fair Work Act 2009 (Cth) which are to the effect that a person who has been unfairly dismissed must be reinstated unless the FWC is satisfied that reinstatement is inappropriate and an order for compensation is appropriate. It is to be noted that s 391(1) then provides that an order for a person’s reinstatement ‘must be an order that the person’s employer at the time of the dismissal reinstate the person’. There is also express provision in s 391(1A) to deal with instances where the position in which the person was employed at the time of dismissal ‘is no longer a position with the person’s employer’ and that position (or an equivalent) is a position with an associated entity of the employer.

Ratio Decidendi

Legal Principle Established

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