Joseph Calleri v Swinburne University of Technology

[2017] FWC 4207

[2017] FWC 4207

The attached document replaces the document previously issued with the above code on 18 August 2017 to make a correction to the appearances.

Associate to Vice President Hatcher

Dated 18 August 2017

[2017] FWC 4207

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.608 - Referral of a question of law to the Federal Court

Joseph Calleri
v
Swinburne University of Technology
(C2017/3144)

VICE PRESIDENT HATCHER SYDNEY, 18 AUGUST 2017

Referral of a question of law to the Federal Court – s.608 Fair Work Act 2009 (Cth) – application refused

Introduction and background

[1] Mr Joseph Calleri has made an application for the referral of a question of law to the Federal Court of Australia pursuant to s.608 of the Fair Work Act 2009 (FW Act). The President, Justice Ross, has, pursuant to ss. 582 and 584 of the FW Act, delegated to me his functions and powers under s.608 of the FW Act and transferred to me this application for hearing and determination. The questions sought to be referred concern the validity of certain sections of the FW Act pertaining to when a person is protected from unfair dismissal.

[2] Mr Calleri’s application has arisen in the following circumstances. On 3 March 2017 he made an unfair dismissal application, in which he alleged that he had been dismissed by his former employer, Swinburne University of Technology (Swinburne), effective from 13 February 2017. Swinburne contended that the unfair dismissal application was jurisdictionally incompetent because Mr Calleri had not served the minimum employment period required by s.383 of the FW Act and explicated in s.384. In a decision issued on 24 May 2017 1, Commissioner Wilson upheld Swinburne’s jurisdictional objection and dismissed Mr Calleri’s unfair dismissal application. The Commissioner found that:

● Mr Calleri had been a casual employee;

● only his employment after 2 August 2016 had been on a regular and systematic basis with a reasonable expectation of continuing employment;

● any casual employment before August 2016 was not regular and systematic;

● there was no evidence of any further employment after 16 December 2016, and the termination of employment therefore occurred no later than that date.

[3] On 8 June 2017 Mr Calleri lodged a notice of appeal against the Commissioner’s decision. The grounds of appeal were as follows (with numbering and emphasis added):

(1) The Commissioner erred in dismissing the Appellant’s application;

(2) The Commissioner erred in refusing or failing to exercise his jurisdiction under Division 2 of Part 3-­‐2 of the Fair Work Act 2009;

(3) The Commissioner erred in law and acted without jurisdiction in treating the Appellant as other than a protected employee pursuant to Section 382 of the Fair Work Act 2009;

(4) The Commissioner erred in failing to consider whether Section 384(1) in whole of the Fair Work Act 2009 and Section 384(2) in whole of the Fair Work Act 2009 were validly made so as to be effective at law;

(5) The Commissioner erred in allowing the Respondent to have legal representation;

(6) The Commissioner erred in not drawing adverse inferences regarding the Respondent’s failure to call any witness from its human resources section;

(7) The Commissioner erred in law and in fact in accepting as truthful the testimony of the Respondent’s sole witness, Simona Jobbagy (Jobbagy); failed to give sufficient attention to all the evidence of the case, especially the extensive written evidence and extensive documentary evidence of the Appellant in evaluating the Appellant’s case and the evidence of Jobbagy; in accepting the evidence of Jobbagy, the Commissioner erred in being heavily swayed by his impression of her whilst Jobbagy gave oral evidence; and, the evidence of Jobbagy was not corroborated in material particulars by any witness or evidence presented by the Respondent;

(8) The decision at first instance – that includes the Commissioner finding that the employment period to which he must have regard commenced on 02 August 2016, and not the actual commencement of the Appellant’s employment with the Respondent on 06 May 2010 -­‐ manifests an injustice upon the Appellant denying the Appellant access to redress and compensation for his unfair dismissal;

(9) The decision at first instance reduces public confidence in the workings and decision-­‐making processes of the Fair Work Commission; and

(10) The Commissioner’s finding was itself, in all the circumstances, unreasonable, plainly unjust, and not reasonably available to the Commissioner.

[4] The notice of appeal went on to identify the basis upon which Mr Calleri contended that permission to appeal should be granted. It also contained extensive submissions elaborating upon each ground of appeal. In relation to the fourth appeal ground, these submissions included the following:

“Section 384(1) in whole of the Fair Work Act 2009 and Section 384(2) in whole of the Fair Work Act 2009 are not validly made by the Australian Parliament, and are not effective at law, in that, the Commonwealth of Australia, being empowered pursuant to the Termination of Employment Convention, and Section 51(xxix) of the Constitution, the executive power of the Commonwealth of Australia with respect to external affairs, to make laws concerned with the length of the period of employment, passed Section 384(1) in whole of the Fair Work Act 2009 and Section 384(1) in whole of the Fair Work Act 2009 that impose criteria - continuous service, regularity and systematic engagement AND a reasonable expectation of continuing employment - that have nothing to do with an employee’s minimum period of employment of either six months or 12 months in accordance with Section 383 of the Fair Work Act 2009.”

[5] The appeal notice then went on to seek the referral of a question of law to the Federal Court pursuant to s.608 of the FW Act, and identified the question as follows:

“Is Section 384(1) in whole of the Fair Work Act 2009 and Section 384(2) in whole of the Fair Work Act 2009 beyond the legislative powers of the Commonwealth of Australia, not authorised by the external affairs power, not reasonably capable of being considered appropriate and adapted to implement the Termination of Employment Convention obligations, and, in whole, invalid.”

[6] The submission went on to elaborate upon the constitutional point said to have been raised, and made extensive reference to the Federal Court Full Court decision in Hamzy v Tricon International Restaurants trading as KFC 2 (Hamzy). In Hamzy, the Court determined, among other things, that reg.30B(3) of the Workplace Relations Regulations 1996 was invalid because it was not authorised by the regulation-making power in s.170CC of the Workplace Relations Act 1996 (WR Act). Reg.30B excluded certain casual employees from the operation of the termination of employment remedial scheme contained in Subdivision B of Division 3 of Part VIA of the WR Act as it was at that time. That scheme was enacted pursuant to the external affairs power in s.51(xxix) of the Constitution.

[7] Mr Calleri’s appeal was listed for hearing before a Full Bench in relation to the issue of permission to appeal only on 12 July 2017. Pursuant to directions issued by the Commission, Mr Calleri lodged a written submission in support of his application for permission to appeal on 30 June 2017. That submission, in relation to the fourth ground of appeal earlier set out (identified as ground 2 in the submission), in substance repeated the passage from the appeal notice quoted above, and reiterated the request for the referral of the same question of law to the Federal Court.

[8] When Mr Calleri’s application for permission to appeal was heard before the Full Bench on 12 July 2017, he proceeded on the basis that his application for a referral of a question of law could be determined by the Full Bench as part of the appeal process. However he was advised by the presiding member (Ross J, President) that it would be necessary for him to make a separate application, and that this would be determined prior to the Full Bench delivering its decision concerning his application for permission to appeal.

[9] On 19 July 2017 Mr Calleri filed his referral application pursuant to the indication given by the presiding member. The questions sought to be referred had been reformulated in the application in the following terms:

“Are Section 382, Section 383, and Section 384 of the Fair Work Act 2009 invalid in that:

They jointly and severally, in whole or in part, purport to exclude the Appellant from bringing an application for relief under Part 3-­‐2, Division 4 of the Fair Work Act 2009, and purport to exclude the Fair Work Commission from determining any such application, and are, therefore, ultra vires the legislative power of the Commonwealth under Section 51(xx) (the Corporations power: Section 51(20)) and / or under Section 51(xxix) (the External Affairs power: Section 51(29)) of the Constitution?

They are jointly and severally, in whole or in part, unfair to working Australians, and fail to take into account of, or give effect to, the Commonwealth’s international labour obligations (Section 3(b) of the Fair Work Act 2009, and Section 771 of the Fair Work Act 2009) and, therefore, violate those international treaties to which the Commonwealth is a signatory (including but not limited to, the International Covenant on Civil and Political Rights, and in particular Article 14 and Article 16 and Article 26 thereof), and which are binding on the Commonwealth?

The Commonwealth is seeking to improperly enact, impose, or otherwise apply laws regulating probationary employment, thereby engaging in commercial activities and seeking to improperly exercise governmental power over the terms and working conditions of its subjects’ employment contracts or circumstances of employment?

They are jointly and severally, in whole or in part, inconsistent and fail to comply with, the principle of the constitutional unity of the Australian people, the principle of non-­‐ discrimination, and fail to respect the rule of law that all citizens are equal before the law, whereby the sections whether jointly and severally, in whole or in part, either expressly or by implication require or permit the Fair Work Commission to unequally treat employees, and specified designations and given classes of employees, based on the criteria set out in the sections?”

[10] Mr Calleri submitted that the questions of law were appropriate to be submitted to the Federal Court because:

● the questions involved a high degree of legal complexity and raised issues of national, and possibly international importance (since certain of the Appellant’s questions of law related to whether certain sections of the FW Act complied with international treaties that were binding on the Commonwealth) which travelled beyond the resolution of the particular dispute between the Appellant and the Respondent.

● the determination would have significant consequences for every designation and classification of working Australians and, among other matters, their access to the unfair dismissal laws and remedies for relief granted by Part 3-­‐2 of the FW Act;

● these matters have not been heard or determined by the Fair Work Commission before; and

● the discretion conferred by s.608 of the FW Act should, where appropriate, be exercised in such a way as to avoid undue delay in the determination of the Appellant’s application seeking leave to appeal, which was a matter currently before the Fair Work Commission.

[11] In his written and oral submissions in support of his referral application, Mr Calleri canvassed extensively the merits of the propositions underlying his proposed question of law. In relation to the fourth proposition stated in his proposed question set out above, he made reference to the High Court decisions in Leeth v The Commonwealth 3and R v Shrestha.4

Consideration

[12] Section 608 of the FW Act provides:

608 Referring questions of law to the Federal Court

(1)  The President may refer a question of law arising in a matter before the FWC for the opinion of the Federal Court.

(2)  A question of law referred under subsection (1) must be determined by the Full Court of the Federal Court.

(3)  The FWC may make a decision in relation to the matter even if the Federal Court is determining the question of law, except if the question is whether the FWC may exercise powers in relation to the matter.

(4)  Once the Federal Court has determined the question, the FWC may only make a decision in relation to the matter that is not inconsistent with the opinion of the Federal Court (if the FWC has not already done so).

(5)  However, if the FWC has made a decision in relation to the matter that is inconsistent with the opinion of the Federal Court, the FWC must vary the decision in such a way as to make it consistent with the opinion of the Federal Court.

[13] The principles applicable to an application for reference of a question of law under s.608(1) were stated in Grabovsky v United Protestant Association of NSW Ltd 5(Grabovsky) as follows:

“[52] Section 608 confers discretion on the President as to whether a question of law arising in a matter before the Commission should be referred for the opinion of the Federal Court. Subsection 608(1) imposes two conditions on the power to refer a question for the opinion of the Court: first, the question must be one ‘of law’; and second, the question must be one ‘arising in a matter before the Commission’.

[53] As to the meaning of the expression ‘a question of law arising in a matter before the FWC’ in Hamzy v Tricon International Restaurants and another [[2001] FCA 1589, 115 FCR 78] the Full Federal Court held that a question does not ‘arise’, within the meaning of what is now s.608(1), ‘unless it pertains to an issue that actually exists’. The Court cited a statement by Isaacs J in Australian Commonwealth Shipping Board v Federated Seaman’s Union of Australia [(1925) 36 CLR 442]in support of this proposition:

“It is manifestly impossible for this Court or any other Court to ‘hear and determine’ a question so as to give it the character of a conclusive judgment, unless that question ‘arises’ so as necessarily to enter into the legal determination of the matter upon the facts stated. Remote or merely possible relation of the question of law to the facts is not enough to make the question ‘arise’ in a legal sense. To say that it may arise is not the same as saying it does arise, which is the meaning of ‘arising’.”

[54] The above statement was applied by the Full Court of the Federal Court in Re Alcoota Land Claim No 146 [(1998) 82 FCR 391].

[55] The discretion conferred by s.608(1) is to be exercised having regard to the purpose and objects of the Act. In this context I note that s.577 of the Act provides that the Commission must perform its functions and exercise its powers in a manner that:

‘(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations.’”

[14] I accept that Mr Calleri’s proposed question is one of law. However I am not satisfied that it arises in a matter before the Commission. Mr Calleri disavowed raising any argument concerning the validity of s.384 of the FW Act at the hearing before the Commissioner. The transcript discloses the following exchange between the Commissioner and Mr Calleri:

“MR CALLERI:  Well, basically what the Federal Court said in Hamzy is that the

Governor-General did not - he exceeded effectively his constitutional powers by adding something to the minimum period of employment that had nothing to do with the minimum period of employment.  I believe and my submission would be that this has not been tested as yet by the Fair Work Commission.

THE COMMISSIONER: Okay. There is the conflation of issues there, isn't there? You may well be correct in respect to the status of the regulation made under the Workplace Relations Act. I will research that point, but the matter before me obviously deals with a part of the Fair Work Act.

MR CALLERI:  Yes.

THE COMMISSIONER:  There is no question of invalidity raised by you about that, is there, or lack of constitutionality?

MR CALLERI:  Well, that hasn't been tested either, with respect, Commissioner.

THE COMMISSIONER:  Yes, but are you raising it?

MR CALLERI:  Not at this stage.  I may raise it on appeal.

THE COMMISSIONER:  Now is your opportunity.

MR CALLERI:  What, to raise the point regarding - - -

THE COMMISSIONER:  It's for you to run your case as you wish and I will decide it as you wish.

MR CALLERI: What I am going to do is rely on the Hamzy decision in these circumstances and basically submit that section 384 is invalid.

THE COMMISSIONER:  So you don't wish to run that argument to me now?

MR CALLERI:  Not now.  I was not prepared for that argument.  I was going to raise it on appeal if I lose this jurisdictional hearing, Commissioner.” 6

[15] As a consequence, the issue raised by Mr Calleri’s proposed questions of law was not considered in the Commissioner’s decision. In respect of Mr Calleri’s appeal, there consequently cannot be any basis for the proposition that the question of law must arise for determination because the Commissioner erred in his consideration of it. Mr Calleri’s notice of appeal does not allege any such error; rather his fourth ground of appeal only contends that the Commissioner erred by failing to consider the question of the validity of s.384. Whether appealable error could be found on the basis of that ground does not actually require determination of the purported question, only whether the Commissioner was required to consider it.

[16] Even if Mr Calleri’s invalidity point can be regarded as having been properly raised in his appeal, notwithstanding that he did not argue it at first instance, it does not follow that the point “arises” in the appeal in the sense discussed in Grabovsky. Mr Calleri’s appeal challenges the Commissioner’s decision on a number of grounds, including that the Commissioner erred in accepting evidence that was adverse to the proposition that Mr Calleri had served the minimum employment period. It is apparent that Mr Calleri’s primary case is that he did in fact serve the minimum employment period in accordance with the stated requirements of ss.383 and 384, and was therefore a person protected from unfair dismissal. If that factual case is upheld on appeal, Mr Calleri’s invalidity point will not arise for consideration. Conversely, the Commissioner’s factual finding that Mr Calleri’s termination of employment occurred not later than 16 December 2016, if upheld, means that his application was not competent because it was not made in accordance with s.394(2), regardless of the validity or otherwise of ss.382-384. This demonstrates that the factual foundation of the matter remains in contest, and Mr Calleri’s invalidity argument would only arise for consideration if a particular view of the facts was taken.

[17] In Re Alcoota Land Claim No 146 7(referred to in the passage from Grabovsky quoted above), the Federal Court said in relation to procedures for a case stated under the Court’s rules as they then were:

“The problems inherent in these procedures are exacerbated when the Court is asked to determine questions of law on incomplete facts, or on assumptions, or in circumstances which render it impossible to answer the questions in other than a hypothetical fashion...

The case stated procedure ought not be adopted where there are disputed questions of fact which impinge upon the question or questions of law reserved for determination. Nor is it appropriate where the answer to the question depends upon the impact of detailed and complex findings of fact upon legal principles which are flexible in their application and therefore inextricable from those facts...

The questions for the Court on a special case are, of course, questions of law and not of fact... Whilst the distinction may sometimes be a difficult one, the Court cannot properly discharge its function unless it is observed and unless there is in the stated case a sufficient foundation in fact for the determination of the question or questions of law reserved. If those pre-conditions are not met, the Court should and will refuse to answer the questions reserved.” 8

[18] The principles stated in the above passage are inherent in the requirement in s.608(1) that, for a question of law to be referred to the Court, it must arise in the matter. For the reasons stated, I am not satisfied that Mr Calleri’s proposed question of law arises in his matter.

[19] Even if I was satisfied that the proposed question of law arose in the matter, I would not exercise my discretion to refer it to the Court, for two reasons. First, I consider that the reference would only be conducive of unnecessary delay in the proceedings, in circumstances where, if there was no reference, the Full Bench would if necessary be entitled to form an opinion concerning Mr Calleri’s challenge to the validity of s.382-384 in his appeal as a matter going to the scope of the Commission’s jurisdictional competency. 9 To enable such unnecessary delay would be contrary to the command in s.577(b).

[20] Second, I consider that Mr Calleri’s invalidity argument lacks intrinsic merit. As originally formulated in the notice of appeal, Mr Calleri argued that s.384 was invalid based on the reasoning in Hamzy and the proposition that the section was not authorised by the constitutional external affairs power because it did not properly give effect to the Termination of Employment Convention. However, Hamzy is not relevant because it was concerned with whether a particular regulation was authorised by the regulation-making power in the governing statute. Section 384 is a substantive provision of the FW Act, not a regulation. Nor are the external affairs power or the Termination of Employment Convention relevant, because the unfair dismissal scheme established in Pt.3-2 of the FW Act relies on a combination of the corporations power (s.51(xx)) of the Constitution), the territories power (s.122), the trade and commerce power (s.51(i)) and the Commonwealth’s incidental power to regulate its own employment relationships, and not the external affairs power (s.51(xxix)).

[21] Mr Calleri shifted the basis of his argument in his submissions in support of the referral, and sought to rely on two new arguments, encapsulated in his proposed third and fourth questions of law earlier set out. The third does not, as far as I can discern, invoke any established proposition of constitutional law. The fourth paragraph apparently relies on the dissenting judgment of Deane and Toohey JJ in Leeth v The Commonwealth 10, who identified in the Constitution an assumption of the fundamental common law doctrine of legal equality which operated to confine the scope of the Commonwealth’s legislative power.11 This proposition was not adopted by the majority. In any event, Deane and Toohey JJ said in relation to the implied limitation on legislative power which they identified:

“The doctrine of legal equality is not infringed by a law which discriminates between people on grounds which are reasonably capable of being seen as providing a rational and relevant basis for the discriminatory treatment. In one sense, almost all laws discriminate against some people since almost all laws operate to punish, penalize or advantage some, but not all, persons by reference to whether their commands are breached or observed. While such laws discriminate against those whom they punish or penalize or do not advantage, they do not infringe the doctrine of the equality of all persons under the law and before the courts. To the contrary, they assume that underlying legal equality in that they discriminate by reference to relevant differences. Again, laws which distinguish between the different needs or responsibilities of different people or different localities may necessarily be directed to some, but not all, of the people of the Commonwealth [See, e.g., Queensland Electricity Commission v. The Commonwealth (1985) 159 CLR, at pp 206-207]. Provided that the differentiation of and between those to whom they are addressed does not involve discrimination of a kind that infringes their inherent equality as people of the Commonwealth, such laws will not infringe the doctrine of equality under the law and before the courts.” 12

[22] On the basis of the above passage, it is difficult to see how the distinction established by s.384 between certain classes of employees in respect of their capacity to apply for an unfair dismissal remedy could even arguably offend the doctrine of legal equality even if it were correct that this doctrine operated as an implied limitation on the Commonwealth’s legislative power.

[23] Accordingly Mr Calleri’s application for referral of a question of law to the Federal Court is dismissed.

VICE PRESIDENT

Appearances:

J Calleri on his own behalf.

M Minucci of counsel and M Nicolazzo on behalf of Swinburne University of Technology.

Hearing details:

2017.

Melbourne:

15 August.

 1   [2017] FWC 2702

 2 [2001] FCA 1589, 115 FCR 78, 111 IR 198

 3 [1992] HCA 29; 174 CLR 455; 102 ALR 672

 4 [1991] HCA 26; 173 CLR 48

 5   [2015] FWC 5161

 6   Transcript 2 May 2017 PNs 1281-1293

 7 (1998) 82 FCR 391 at 394

 8   Ibid.

 9   See Re Adams and The Tax Agents’ Board (1976) 12 ALR 239 at 245; Re Boulton; Ex parte CFMEU (1998) 83 IR 468 at [18]-[22]; Asmar v Fair Work Commission [2014] FCA 1156 at [33]-[36]

 10 [1992] HCA 29; 174 CLR 455; 102 ALR 672

 11   Ibid at 485-488

 12   Ibid at 488-489

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