Karl Peter Avis v Offshore Marine Services Pty Ltd & the Maritime Union of Australia

[2010] FWA 4426

[2010] FWA 4426

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.372 - Application to deal with other contraventions

Karl Peter Avis
v
Offshore Marine Services Pty Ltd & The Maritime Union of Australia
(C2010/2607)

COMMISSIONER MCKENNA SYDNEY, 25 JUNE 2010

Application to deal with other contraventions.

[1] Karl Avis (“the applicant”) has filed an application, pursuant to s.372 of the Fair Work Act 2009 (“the Act”), alleging certain contraventions by Offshore Marine Services Pty Ltd (“OMS”) as first respondent and the Maritime Union of Australia (“the MUA”) as second respondent. It is unnecessary for the purposes of this decision to detail the alleged contraventions.

[2] A threshold objection has been raised by both OMS and the MUA concerning the question of participation in a conference before Fair Work Australia. At the initial listing of the matter on 5 February 2010, the MUA’s solicitors, WG McNally Jones Staff, appeared before Fair Work Australia relevantly to advise of the MUA’s objection to participation in any conference. OMS, appearing by teleconference from Perth through its solicitors, Jarman McKenna, similarly objected to participation in any conference. The matter was adjourned to allow the applicant’s solicitors, Harmers Workplace Lawyers, to obtain instructions given the submissions of OMS and the MUA.

[3] On 16 February 2010, the applicant’s solicitors filed, of their own volition, written submissions going to the objections that had been raised by the MUA and OMS. In those submissions, the applicant contended Fair Work Australia has the discretion to order a conference even if one or more of the respondents indicate they do not agree to such participation. It was submitted Fair Work Australia should exercise that discretion and conduct a conference. It was further submitted that, properly construed, s.374 of the Act is limited to specifying the circumstances when Fair Work Australia mustconduct a conference and does not of itself deal with the question of when Fair Work Australia may, in the exercise of discretion, order that a conference be held, or when a general protections dispute may be dealt with in any other manner. As to statutory provisions, the applicant’s submissions drew attention to:

• s.592(1) of the Act, which provides “For the purpose of performing a function or exercising a power of FWA (other than a function or power under Part 2-6), FWA may direct a person to attend a conference at a specified time and place”;



• s.576(1), which identifies that Fair Work Australia has the functions conferred by the Act in relation to, among other things listed, in subsection (h) “general protections” (Part 3-1);



• s.576(2)(a), which states Fair Work Australia also has the function of “dealing with disputes as referred to in section 595”; and



• s.595, which concerns power to deal with disputes.

[4] The applicant’s submissions noted the applicant has made an application pursuant to s.372 of the Act. Given the application has been brought under s.372, it was submitted Fair Work Australia has express jurisdiction to deal with the dispute, so enlivening s.595 of the Act. Based on the interaction of various statutory provisions, the applicant submitted Fair Work Australia has discretion to direct the respondents to attend a conference under s.592 of the Act, and/or to deal with the dispute under s.595 of the Act in any manner in which it is able to, including, without limitation, by mediation or conciliation.

[5] The applicant referred to the explanatory memorandum to the Fair Work Bill 2008, namely, items 1492, 1494, 1495 and 1496 - aspects of which might tend to support the submissions of the respondents. The applicant submitted that notwithstanding the content of the explanatory memorandum at these items, the relevant extracts thereto should not be used as a basis to sustain the objections in relation to participation in a conference. In so submitting, the applicant referred to s.15AB of the Acts Interpretation Act 1901 (Cth) as to the use of extrinsic material, as well as to Re Australian Federation of Construction Contractors; ex parte Billing (1986) 68 ALR 416 at 420 and NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456 at 471-2. The applicant submitted there was no proper recourse to the use of the explanatory memorandum where there was no relevant ambiguity or obscurity in relation to the Act. The applicant further submitted that the provisions of the Act on which reliance was placed are neither ambiguous nor obscure, and the construction advanced by the applicant would not lead to a conclusion that is manifestly absurd or unreasonable.

[6] The applicant submitted that s.595 of the Act, on its face, clearly allows Fair Work Australia, once the section has been enlivened - such as by an application under s.372 - to deal with a dispute in any way considered appropriate, including conducting a conference pursuant to s.592. The applicant submitted the respondents’ objection to a conference should not constrain the exercise of discretion concerning a conference, when there is clear jurisdiction.

[7] In the alternative, the applicant submitted that if Fair Work Australia is not minded to accept the primary submissions as to the construction of the Act and the use of extrinsic materials, then other parts of the Act and explanatory memorandum support the applicant’s contentions. In this respect, the applicant submitted that, consistently with the High Court’s approach to statutory interpretation, “every passage in a document must be read, not as if it were entirely divorced from its context, but as part of the whole instrument”: Metropolitan Gas Co v Federated Gas Employees’ Industrial Union (1924) 35 CLR 449 at 455 per Isaacs and Rich JJ. Reference was made also to Wacando v Commonwealth (1981) 148 CLR 1 at 23, where Mason J said the following in relation to preambles and parts of legislation which set out the objects and purpose of legislation:

“It has been said that where the enacting part of a statute is clear and unambiguous it cannot be cut down by the preamble. But this does not mean that a court cannot obtain assistance from the preamble in ascertaining the meaning of an operative provision. The particular section must be seen in its context; the statute must be read as a whole and recourse to the preamble may throw light on the statutory purpose and object.”

[8] The applicant noted the objects of the Act include, at s.3(e), the objectives of “providing accessible and effective procedures to resolve grievances and disputes”. Considered in the context of the objects to the legislation, the applicant submitted Fair Work Australia ought adopt a course that would support these objectives rather than one that would undermine or read-down such objectives - with the effect that procedures to resolve grievances and disputes become less accessible and effective and, in this case, “irrelevant”.

[9] The applicant also submitted that in the event Fair Work Australia were to consider the explanatory memorandum, contrary to the applicant’s primary submissions that there should be no recourse to extrinsic materials, various provisions other than items 1492, 1494, 1495 and 1496 would be relevant for consideration, particularly items 2285-2287 and 2289-2290. The applicant submitted these extracts from the explanatory memorandum at items 2285-2287 and 2289-2290 indicate Fair Work Australia’s jurisdiction is broad, and should not be constrained by the respondents’ refusal to participate in a conference. It was further submitted that although the explanatory memorandum makes it clear there is no power to arbitrate general protections disputes, equally there is no indication that if parties do not agree to participate in a conference that Fair Work Australia is constrained in exercising further powers as are available concerning the conduct of matters. As such, it was submitted Fair Work Australia has the discretion to order the parties to attend a conference or to seek to deal with the application in another way deemed appropriate in order to seek to resolve this matter before Fair Work Australia without the need to access the courts.

[10] The applicant’s submissions went to a number of matters which, it was submitted, would weigh in favour of the exercise of discretion to order a conference, including the applicant’s personal circumstances. The applicant also submitted it is in the interests of all the parties in this matter, and in the spirit of the Act, to first seek the assistance of Fair Work Australia in a conciliation conference to attempt to resolve the matter, in an endeavour to avoid the dispute having to proceed elsewhere. Lastly, conducting a conference would, the applicant submitted, assist Fair Work Australia in providing advice on a general protections court application pursuant its obligation under s.375 of the Act.

[11] On 22 February 2010, the MUA’s initial objection to participation in a conference was subsequently re-confirmed in correspondence which read:

“We are the solicitors for the Maritime Union of Australia.

When this matter was listed before Commissioner McKenna on 5 February 2010, we contended that:

1. The application is made under section 372 of the FW Act.

2. FWA only has jurisdiction to conduct a conference to deal with this dispute if the parties to the dispute agreed to participate (s 374).

3. Section 595(1) constrains the power of FWA to deal with disputes to circumstances where FWA is “expressly authorised to do so under or in accordance with another provision of this Act”. In other words a provision other than section 595.

4. The only express authorisation to deal with this dispute is found in section 374.

5. Our client does not agree to so participate in such a conference. ...

...

For the reasons set out above and with the greatest respect to FWA our client does not intend to take any further part in these proceedings.” [Underlining in original]

[12] On 15 March 2010, the applicant’s solicitors then filed an application in the following terms:

“The Applicant applies, pursuant to the provisions(s) in part 1, for the order or relief set out in part 2 on the grounds specified in part 5.

1. Provision(s) under which the application is made:

• section 595(2)




2. Order or relief sought:

2.1 The Applicant will, on a date to be fixed, seek orders or relief from Fair Work Australia (“FWA”) to exercise its express jurisdiction to deal with the dispute contained in the application made by the Applicant under section 372 in Part 3-1 of the Fair Work Act 2009 (Cth) (“Act”) and filed 20 January 2010 (matter C2010/2607), by:

1. conducting a mediation or conciliation; or, in the alternative

2. making a recommendation or expressing an opinion,

as it considers appropriate.

2.2 The Applicant will further apply for the FWA to inform itself in any way it considers appropriate pursuant to section 590 to provide the relief sought in 2.1 above.

2.3 In the event that the FWA is not minded to provide such orders or relief as requested in clauses 2.1 and 2.2 above, the Applicant, in the alternative, seeks an order or relief from Fair Work Australia for the FWA to conduct a hearing to determine the question of whether it has the authority and jurisdiction to hold a conference in these proceedings as the legislative provisions are unclear and ambiguous.”

[13] On 16 March 2010, OMS filed submissions in reply to the applicant’s submissions dated 15 March 2010.

[14] The listing of the hearing of the application for order or relief was deferred by consent, given that without-prejudice negotiations were being held with a view to attempting to resolve the matter. Ultimately, as the substantive issues were not settled between the parties, the hearing concerning of the application for order or relief proceeded on 15 June 2010.

[15] In accordance with the advice from the MUA’s solicitors in the letter dated 22 February 2010, the MUA has not participated any further in the proceedings in relation to the application for the order or relief sought. Although the MUA determined not to participate any further in the proceedings, OMS continued its appearance, albeit only for the purpose of contesting the application for the order or relief filed by the applicant on 15 March 2010.

APPLICANT’S SUBMISSIONS

[16] The applicant’s solicitors submitted that reliance was placed on both the initial submissions filed on 16 February 2010 and on the grounds outlined in support of the application filed on 15 March 2010. The specific grounds advanced by the applicant in support of the application filed on 15 March 2010 noted the fact that OMS and the MUA had raised initial objection to participating in conference proceedings and, in so doing, relied on s.374 of the Act – contending Fair Work Australia could convene a conference or deal with a dispute only with the parties’ agreement. As to that, the applicant referred to a number of statutory provisions, which were described in the submissions as having the following effect:

• s.589(1) provides Fair Work Australia with jurisdiction to make decisions as to how, when and where a matter is to be dealt with;



• s.589(3) allows Fair Work Australia to make a decision under s.598 either on its own initiative or on application;



• s.372 of the Act enables a party who:




(a) alleges a contravention of the Act; and

(b) who is not entitled to apply to Fair Work Australia under s.365 to deal with the dispute

to apply under the section for Fair Work Australia to deal with the dispute.

[17] The applicant’s submissions drew particular attention to the words “apply to FWA under this section for FWA to deal with the dispute” within s.372. In this respect, it was submitted s.372 performs a “double function” - it deals with substantive rights as well as conferring jurisdiction, a type of provision recognised by Dixon J (as he then was) in R v Commonwealth Court of Conciliation and Arbitration; ex parte Barrett (1945) 70 CLR 141 at 165-66, it being a section that:

“… must be taken to perform a double function, namely to deal with substantive liabilities or substantive legal relations and to give jurisdiction with reference to them. It is not unusual to find that statutes impose liabilities, create obligations or otherwise affect substantive rights, although they are expressed only to give jurisdiction or authority, whether or a judicial or administrative nature…”

[18] Drawing from this quote and other case references, it was submitted the applicant has correctly lodged an application pursuant to s.372 and Fair Work Australia has express jurisdiction to “deal” with the substantive matter and the dispute contained therein. The submissions also drew attention again to s.374 of the Act. The applicant submitted the proper construction of s.374 is as follows:

“Section 374 specifies that the FWA must conduct a conference as the means of dealing with a dispute if the parties agree. It doesnot provide that the non-agreement of the parties to agree to participate in a conference prevents or deprives the FWA of its inherent and express jurisdiction to “deal with the dispute”. The FWA’s jurisdiction is conferred under section 372 and this section does not expressly or implicitly restrict the manner of dealing to [sic] a conference.” [Underlining in original]

[19] The applicant submitted that when Note 2 to s.374 and s.595(2) of the Act are read in conjunction, the provisions support the applicant’s contention that Fair Work Australia is not limited to dealing with the dispute by means of a conference (which requires the agreement of the parties), but may “deal with the dispute” in such a way as may be considered appropriate. It was submitted the applicant’s interpretation was supported by Woolworths Ltd t/as Produce and Recycling Distribution Centre [2010] FWAFB 1464 (“Woolworths”) The applicant submitted it was clear from the comments of the Full Bench at paragraph [19] in Woolworths that the powers of Fair Work Australia under s.595 to deal with a dispute, once express jurisdiction and authorisation are conferred under the Act, are not dependent on or restricted by the consent of parties to the dispute except, in s.374, with respect to conducting a conference. The applicant further submitted that a party’s failure to agree to participate in a conference does not and cannot bring the matter to an end automatically, or automatically refer the matter to the general protections court (or force an applicant to make a general protections court application). This contention, it was submitted, is supported by s.375 of the Act concerning the giving of advice on a general protections court application.

[20] In conclusion, the applicant submitted any contention that Fair Work Australia has no jurisdiction to “deal with the dispute” because the parties do not agree to a conference would be not only erroneous, but would mean the legislative processes for dealing with general protections applications that do not involve a dismissal would be “completely frustrated”, in circumstances where Fair Work Australia would not be able to exercise express powers under s.372 and s.375 to deal with a matter in the absence of agreement by the parties, where such provisions do not require the parties’ consent.

OMS’S SUBMISSIONS

[21] OMS submitted that Fair Work Australia is “the object of statute” and is limited in its powers to those afforded by statute; and Fair Work Australia’s powers to deal with a dispute concerning “other contraventions” under s.372 dispute arise under s.576(1)(h) of the Act, which reads as follows:

“576 Functions of FWA

(1) FWA has the functions conferred by this Act in relation to the following subject matters:

(a) …;

...

(h) general protections (Part 3-1);

…

(2) FWA also has the following functions:

(a) dealing with disputes as referred to in section 595;

…”

[22] OMS noted that Division 8 of Part 3-1 of the Act is divided into three subdivisions, namely, Subdivision A (Contraventions involving dismissal), Subdivision B (Other contraventions), and Subdivision C (Conference costs). OMS submitted that although the applicant has now conceded Subdivision A is not relevant, Subdivision C may still apply and will be relied on by OMS in later submissions.

[23] OMS submitted that although the applicant would prefer to deal with s.595(2) of the Act in isolation, the section must, as a matter of statutory construction, be read subject to s.595(1). Section 595(1) provides that Fair Work Australia may deal with a dispute only if expressly authorised to do so under or in accordance with another provision of this Act. That s.595(2) of the Act does not operate independently of s.595(1) was confirmed, OMS submitted, by Woolworths. In that decision, the Full Bench referred to Fair Work Australia’s powers, pursuant to s.595 of the Act, to: “...deploy voluntary methods of dispute resolution without the consent of the parties to the dispute, provided the dispute is one which it is authorised to deal ...”. It was submitted that in Woolworths there was no question as to Fair Work Australia’s jurisdiction to deal with the dispute. The question there, the submissions continued, was whether Fair Work Australia could exercise its powers, such as conciliation and mediation, in the context of a conference which it was empowered to hold.

[24] OMS submitted that in an application such as the one now before Fair Work Australia, the sole source of power to deal with the dispute arises from Subdivision B and the only “vehicle” for doing so is a conference. Contrary to the applicant’s submissions, OMS submitted that s.372 of the Act does not empower Fair Work Australia to deal with a dispute; rather, it infers a right on persons only to apply to Fair Work Australia to deal with a dispute. In that respect, OMS’s submissions noted that the title of the section itself reads: “Application for FWA to deal with a dispute”. OMS further submitted that Fair Work Australia’s only powers to deal with a dispute involving an application under s.372 are those outlined in Subdivision B, and that s.374 is “clear and unambiguous” in identifying the circumstances in which Fair Work Australia is empowered to hold a conference and that advice pursuant to s.375 must be given in certain circumstances.

[25] OMS disagreed with the applicant’s submission that Fair Work Australia must have power to deal with the dispute in the manner advocated by the applicant. OMS further submitted that the applicant appeared to be suggesting Fair Work Australia may deal with this dispute albeit lacking the power to hold a conference. However, “in the absence of plenary or organic power”, Fair Work Australia’s powers are limited to those which are positively afforded by statute. The submissions continued that Fair Work Australia “does not have inherent powers and its powers are not merely curtailed by provisions which expressly negate those powers”. The applicant has failed, OMS submitted, to explain how Fair Work Australia may deal with the dispute other than as provided by s.374 of the Act.

[26] OMS submitted the applicant’s contentions were not assisted by s.595 of the Act, because that section refers to Fair Work Australia’s powers in general and which otherwise apply only if “expressly authorised”. Note 2 to s.374 of the Act clarifies Fair Work Australia’s powers to conciliate, mediate, make a recommendation or express an opinion - but this would exist only in the context of a conference, and Fair Work Australia cannot exercise those powers if it cannot hold a conference where there is no agreement to participate.

[27] The submissions for OMS noted the different legislative approaches to conferences in relation to alleged contraventions. OMS submitted that s.374 dealing with Fair Work Australia’s powers under Subdivision B, stands in “marked contrast” with s.368 dealing with powers under Subdivision A in relation to a dispute under s.365 of the Act. By s.365, Fair Work Australia must deal with the dispute if an application is made and must do so by holding a conference. OMS submitted that, in contrast, the legislature intentionally limited Fair Work Australia’s jurisdiction to deal with disputes concerning contraventions arising under Subdivision B. Fair Work Australia may deal with this dispute only if there is agreement by the parties given its only vehicle for doing so is by way of conference.

[28] OMS submitted that if the applicant were correct in submitting s.372 enlivened Fair Work Australia’s powers to deal with a dispute, Fair Work Australia would have jurisdiction to deal with a dispute even if, contrary to s.373 of the Act, an applicant had not paid the prescribed fee. Section 374, it was submitted, refers to the making of an application which, by necessary implication, needs to be a valid application whether by satisfaction of the precondition of s.372 or s.373 of the Act. Section 372 states only that a “person may apply” to Fair Work Australia to deal with the dispute.

[29] OMS submitted that Fair Work Australia does not have any jurisdiction in the current circumstances in the absence of agreement to participate in a conference. OMS further submitted, in conclusion, that even if the applicant’s submissions were accepted as being correct the “current exercise remains fruitless” because OMS maintains its objection to participation in a conference. In those circumstances, OMS described the applicant’s “continued pursuit” of this application as frivolous and vexatious.

CONSIDERATION

[30] This application to Fair Work Australia to deal with a general protections dispute does not involves the dismissal of the applicant, albeit there were some suggestions involving deprivation of employment in the initiating process. The nature of the application being pressed by the applicant is made clear from the initiating process (the Form F8), which reads as follows at cl.3:

“3. Dismissal

3.1 Did the alleged contravention involve the dismissal of the Applicant or, where the applicant is an organisation, an employee whose industrial interests the organisation is entitled to represent?

[ ] Yes

[X] No

3.2 If “Yes”:

• Name of employee dismissed: [N/A]



• Date of dismissal: [N/A]”

[31] Given the application does not involve an alleged contravention involving dismissal, the provisions of the Act relevantly arising for consideration in relation to the convening of a conference are contained in Part 3-1, Division 8, Subdivision B, namely “Other contraventions”. This Subdivision reads as follows:

“Subdivision B—Other contraventions

372 Application for FWA to deal with a dispute

If:

(a) a person alleges a contravention of this Part; and

(b) the person is not entitled to apply to FWA under section 365 for FWA to deal with the dispute;

the person may apply to FWA under this section for FWA to deal with the dispute.

373 Application fees

(1) The application must be accompanied by any fee prescribed by the regulations.

(2) The regulations may prescribe:

(a) a fee for making an application to FWA under section 372; and

(b) a method for indexing the fee; and

(c) the circumstances in which all or part of the fee may be waived or refunded.

374 Conferences

(1) If:

(a) an application is made under section 372; and

(b) the parties to the dispute agree to participate;

FWA must conduct a conference to deal with the dispute.

Note 1: For conferences, see section 592.

Note 2: FWA may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(2) Despite subsection 592(3), FWA must conduct the conference in private.

375 Advice on general protections court application

If FWA considers, taking into account all the materials before it, that a general protections court application in relation to the dispute would not have a reasonable prospect of success, it must advise the parties accordingly.” [My underlining]

[32] The issue relevantly in dispute concerns the capacity for Fair Work Australia to require attendance at a conference in relation to an application made under s.372 of the Act in the absence of party consent. The applicant contends that the requirement for agreement to participate under s.374 applies only to circumstances where Fair Work Australia must hold a conference, and not when Fair Work Australia otherwise may exercise its discretion in relation to conferences. In short, the applicant argues that if the parties to the dispute agree to participate, Fair Work Australia must conduct a conference, but, if the parties do not agree, Fair Work Australia may still, in the exercise of discretion, require attendance.

[33] Section 374 of the Act presupposes that two preconditions must be met before Fair Work Australia must conduct a conference in relation to an application made under s.372 of the Act. Those preconditions are, first, that an application has been made under s.372 of the Act (s.374(1)(a)); and, second, that the parties to the dispute agree to participate (s.374(1)(b)).

[34] It seems to be reasonably clear from a plain reading of s.374 of the Act that Fair Work Australia must conduct a conference only when those two preconditions have been met. Support for this conclusion may be drawn from the explanatory memorandum to the legislation. The explanatory memorandum relevantly reads:

“Subdivision B – Other Contraventions

Clause 372 – Application for FWA to deal with a dispute

Clause 373 – Application fees

Clause 374 – Conferences

Clause 375 – Advice on general protections court application

1492. Where a person alleges a contravention of Part 3-1 but is not entitled to make an application under clause 365, the person has the option of applying under clause 372 for FWA to deal with the dispute rather than proceeding immediately to a court action. Applications can be made under this clause if, for example, an employee was not dismissed, but suffered a reduction in wages because of the alleged contravention.

1493. The prescribed fee (if any) must accompany the application (subclause 373(1)).

1494. In cases where an application is made to FWA, the process is broadly the same as for applications under clause 365, except that a conference to deal with the dispute can only be convened by FWA if all parties to the dispute agree to participate (subclause 374(1)).

1495. Where all the parties to the dispute do not agree to participate in an FWA conference, the person alleging a contravention of Part 3-1 can still make an application to the Federal Court or the Federal Magistrates Court under Division 2 of Part 4-1 for orders in relation to the contravention.

1496. An example of where an FWA conference may not be appropriate and where the dispute would instead proceed directly to court is where an inspector is bringing the action and is seeking the imposition of a monetary penalty.” [My underlining]

[35] Hence, not only are the words in the Act concerning the precondition of the parties’ agreement to participating in a conference conducted by Fair Work Australia in relation to an application under s.372 of the Act reasonably plain from the face of the legislation, the explanatory memorandum lends further support to such a construction – particularly at items 1492, 1494 and 1495.

[36] The provisions concerning the conduct of conferences in relation to applications arising under s.372 of the Act may be compared to, and contrasted with, the provisions concerning an application brought under s.365 (Part 3-1, Division 8, Subdivision A), namely, “Contraventions involving dismissal”. Those provisions relevantly read:

“Subdivision A—Contraventions involving dismissal

365 Application for FWA to deal with a dispute

If:

(a) a person has been dismissed; and

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to FWA for FWA to deal with the dispute.

366 Time for application

…

367 Application fees

…

368 Conferences

(1) If an application is made under section 365, FWA must conduct a conference to deal with the dispute.

Note 1: For conferences, see section 592.

Note 2: FWA may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that FWA might make is that an application be made under Part 3-2 (which deals with unfair dismissal) in relation to the dispute.

(2) Despite subsection 592(3), FWA must conduct the conference in private.

369 Certificate if dispute not resolved

If FWA is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, FWA must issue a certificate to that effect.

370 Advice on general protections court application

(1) If FWA considers, taking into account all the materials before it, that a general protections court application in relation to the dispute would not have a reasonable prospect of success, it must advise the parties accordingly.

(2) A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.

371 General protections court applications

FWA conference to be held before application

(1) A person who is entitled to apply under section 365 to FWA for FWA to deal with a dispute must not make a general protections court application in relation to the dispute unless:

(a) FWA has issued a certificate under section 369 in relation to the dispute; or

(b) the general protections court application includes an application for an interim injunction.

Time for application

(2) Despite section 544, a general protections court application that requires a certificate under section 369 must be made within 14 days after the certificate is issued, or within such period as a court allows on an application made during or after those 14 days.

Note: In Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.”

[My underlining]

[37] Thus, in relation to an application under s.365 of the Act concerning a contravention involving dismissal, s.368(1) specifies, without qualification, that Fair Work Australia “must conduct a conference to deal with the dispute”. In contrast, in relation to an application under s.372 of the Act concerning contraventions other than those involving dismissal, s.374(1) provides that Fair Work Australia must conduct a conference to deal with the dispute in circumstances where (a) an application is made under s.372 and (b) the parties to the dispute agree to participate.

[38] Once again, it is of assistance to consider the explanatory memorandum as to the intended differences in legislative approach to conferences under s.368 (contraventions involving dismissal) and s.374 (other contraventions). The explanatory memorandum relevantly reads:

“Subdivision A – Contraventions involving dismissal

Clause 365 – Application for FWA to deal with a dispute

1478. Clause 365 provides that a person who alleges that they have been dismissed in contravention of Part 3-1, may apply to FWA for a conference to attempt to settle the dispute. An industrial association entitled to represent the industrial interests of the dismissed employee may also make an application to FWA under clause 365.

…

Clause 368 – Conferences

1483. Subclause 368(1) provides that if a person makes an application under clause 365 in relation to their dismissal, FWA must conduct a conference to deal with the dispute.

1484. A legislate note alerts the reader that clause 592 contains procedural rules relating to the conduct of conferences by FWA.

1485. A further legislative note alerts the reader to clause 595, which sets out FWA’s powers when dealing with a dispute. The effect of this provision is that FWA cannot arbitrate the dispute (see subclauses 595(1) and (5)), but can deal with the dispute by mediation, conciliation, making a recommendation or expressing an opinion. The note also makes it clear that where FWA forms the view that the dispute is in fact more properly characterised as an unfair dismissal claim, FWA can recommend that the dismissed employee make an application under Part 3-2 (which deals with unfair dismissal).

1486. Subclause 368(2) provides that FWA must conduct the conference in private. The subclause is a limitation on FWA’s discretion in subclause 592(3), which would otherwise allow the person conducting the conference to direct it be held in public.

Clause 369 – Certificate if matter not resolved

1487. Clause 369 requires FWA, where it is satisfied all reasonable attempts to settle the matter have been, or are likely to be unsuccessful, to issue a certificate to that effect.

Clause 370 – Advice on general protections court application

1488. If FWA considers, taking into account all of the materials before it, that a general protections court application would not have a reasonable prospect of success, subclause 370(1) requires FWA to advise the parties accordingly.

1489. Subclause 370(2) defines a general protections court application as an application to the Federal Court or the Federal Magistrates Court under Division 2 of Part 4-1 for orders in relation to a contravention of Part 3-1.

Clause 371 – General protections court applications

1490. Subclause 371(1) sets out the two circumstances in which a dismissed employee can make a general protections court application in relation to the dismissal. They are:

• if FWA has issued a certificate under clause 369 in relation to the dispute; or



• if the general protections court application includes an application for an interim injunction. This recognises that a conference may be a barrier to obtaining urgent relief in some cases – e.g., where the employment of a bargaining representative has been terminated for reasons related to this role.




1491. Subclause 371(2) provides that once FWA has issued a certificate under clause 369, a person has 14 days to make a general protections court application.”

[39] Hence, the delineation in approach in the Act to conferences under s.368 (contravention involving dismissal) and s.374 (other contraventions) is also reflected in the explanatory memorandum. Item 1483 of the explanatory memorandum explains that if a person makes an application under s.365 in relation to dismissal, Fair Work Australia must conduct a conference to deal with the dispute. The explanatory memorandum further explains at item 1494 that where an application is made under s.372, the process is broadly the same as for applications under s.365, except that a conference to deal with the dispute can be convened by Fair Work Australia only if all parties to the dispute agree to participate. The explanatory memorandum further envisages what may occur in the event a party or parties to the dispute do not agree to participate. That is, item 1495 of the explanatory memorandum notes that where all the parties to the dispute do not agree to participate in a conference conducted by Fair Work Australia, the person alleging a contravention of Part 3-1 of the Act may nonetheless make an application to the Federal Court or the Federal Magistrates Court under Division 2 of Part 4-1 of the Act for orders in relation to the alleged contravention.

[40] In this respect, the differences in approach to applications under s.365 and s.372 once again emerge. Consistently with the requirement in s.368 that Fair Work Australia must conduct a conference to deal with a dispute concerning an application under s.365 in relation to alleged contraventions involving dismissal, s.369 provides that if Fair Work Australia is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, Fair Work Australia must issue a certificate to that effect. There is no parallel or equivalent requirement concerning the issuing of a certificate in relation to an application made pursuant to s.372 of the Act.

[41] To the limited extent it may be relevant, I note also the standard Form F8A (Response to an application for FWA to deal with a general protections dispute) asks at cl.3 whether the respondent agrees to participating in a conference if an applicant does not allege a dismissal. The Form F8A relevantly reads:

“1. Response to Alleged Contraventions?

[Using numbered paragraphs, briefly specify your response to the contraventions alleged in item 2 of the application.]

2. If the application alleges a dismissal, what were the reasons for dismissal?

[Using numbered paragraphs, briefly specify the reasons. Attach any letter of dismissal and/or separation certificate.]

3. If the applicant does not allege a dismissal, does the respondent agree to participating in a conference to deal with the dispute? (see s.374)

[ ] Yes

[ ] No” [My underlining]

[42] The applicant’s submissions referred to the legislative notes contained within the Act immediately following s.374(1) dealing with the conduct of conferences by Fair Work Australia concerning applications made pursuant to s.372. Those notes read as follows:

“Note 1: For conferences, see section 592.

Note 2: FWA may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).”

[43] As to the section to which reference is made in Note 1, s.592 the Act provides as follows:

“592 Conferences

(1) For the purpose of performing a function or exercising a power of FWA (other than a function or power under Part 2-6), FWA may direct a person to attend a conference at a specified time and place.

Note: Part 2-6 deals with minimum wages. For the conduct of annual wage reviews, see Subdivision B of Division 3 of Part 2-6.

(2) An FWA Member (other than a Minimum Wage Panel Member), or a delegate of FWA, is responsible for conducting the conference.

(3) The conference must be conducted in private, unless the person responsible for conducting the conference directs that it be conducted in public.

Note: This subsection does not apply in relation to conferences conducted in relation to unfair dismissal or general protection matters (see sections 368, 374, 398 and 776).”

[44] While Note 2 refers only to s.595(2), I reproduce the full text of s.595:

“595 FWA’s power to deal with disputes

(1) FWA may deal with a dispute only if FWA is expresslyauthorised to do so under or in accordance with another provision of this Act.

(2) FWA may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:

(a) by mediation or conciliation;

(b) by making a recommendation or expressing an opinion.

(3) FWA may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if FWA is expresslyauthorised to do so under or in accordance with another provision of this Act.

Example: Parties may consent to FWA arbitrating a bargaining dispute (see subsection 240(4)).

(4) In dealing with a dispute, FWA may exercise any powers it has under this Subdivision.

Example: FWA could direct a person to attend a conference under section 592.

(5) To avoid doubt, FWA must not exercise any of the powers referred to in subsection (2) or (3) in relation to a matter before FWA except as authorised by this section.”

[45] I have considered the applicant’s submissions concerning aspects of the explanatory memorandum as they concern the powers of Fair Work Australia to deal with a dispute. The applicant referred particularly to the following parts of the explanatory memorandum:

“2285. Generally, FWA will make decisions as required under the Bill by informing itself as it considers appropriate (including by obtaining the views of affected persons as appropriate) and making a decision based on that information. In a range of circumstances, FWA will have power to seek to resolve matters between persons in dispute through conciliation or mediation processes. Subject to a range of access criteria, the Act confers some powers on FWA to impose an outcome if the parties cannot agree - in other words, to arbitrate a dispute between the parties.

2286. Clause 595 gives effect to this policy. Subclause 595(1) provides that FWA may only deal with a dispute if it is expressly authorised to do so under the Bill. Subclause 595(2) enables FWA to deal with those disputes as it considers appropriate, including by a process of mediation or conciliation and/or by delivering an outcome such as a recommendation or opinion. However, subclause 595(3) specifically provides that FWA may only deal with a dispute by arbitration if expressly authorised to do so under the Bill. For the avoidance of doubt, subclause 595(5) emphasises that FWA can only exercise these powers as authorised under clause 595.

2287. The Bill expressly authorises FWA to deal with the following disputes (by authorising FWA to 'deal with a dispute'):

• bargaining disputes under Part 2-4;



• general protections disputes under Part 3-1;



• right of entry disputes under Part 3-4;



• stand down disputes under Part 3-5; and



• disputes arising under a procedure for dealing with disputes in a modern award, enterprise agreement, workplace determination or contract of employment under Part 6-2, including procedures required by clause 146 (modern awards), subclause 186(6) (enterprise agreements) and subclause 273(2) as applied by subclause 297(1) (workplace determinations).




…

2289. FWA will have power to arbitrate a bargaining dispute or a Part 6-2 dispute if the parties have agreed that it may arbitrate, however the parties describe that process (subclauses 240(4) and 739(4)). FWA will also have power to determine right of entry and stand down disputes, whether or not the parties agree (subclauses 505(2) and 526(2)). FWA will not have power to arbitrate general protections disputes. However, FWA will be required to express an opinion about the prospects of success of court enforcement in certain circumstances (see clauses 370 and 375) and to issue a certificate, allowing court enforcement to proceed, in relation to a dismissal dispute which is unlikely to be resolved (see clauses 369 and 371). FWA will not have power to arbitrate in providing assistance for the low paid under clause 246. This is different from FWA making a special low-paid workplace determination under Division 2 of Part 2-5.

2290. Subclause 595(4) ensures that, when FWA is dealing with any of these disputes, FWA can exercise any of its powers under Subdivision B. For example, FWA could direct a person to attend a conference under clause 592. However, there is an exception for Part 6-2 disputes. The procedure in the modern award, enterprise agreement, workplace determination or contract of employment can limit the powers that FWA can exercise in dealing with the dispute (see subclause 739(3)).” [My underlining]

[46] Despite the applicant’s submissions about the effect of the Note 1 to s.374(1) of the Act, I accept OMS’s submission that s.592 of the Act concerning the giving of directions to attend a conference at a specified time and place does not appear to be enlivened where the parties to the dispute do not, within the meaning of s.374(1)(b) of the Act, “agree to participate”. Notes of this type are only legislative signposts; it is the relevant sections themselves that are to be considered.

[47] The applicant’s submissions also placed reliance on Note 2 to s.374(1) as it cross-references to s.595(2) of the Act - which states that Fair Work Australia may deal with a dispute (other than by arbitration) as it considers appropriate, including mediation, conciliation, recommendation or expressing an opinion. Once again, however, the capacity of Fair Work Australia to mediate, conciliate, make a recommendation or express an opinion in proceedings does not, as OMS submitted, appear to be enlivened where the parties to the dispute do not agree to participate in a conference to deal with contraventions other than those involving dismissal in relation to an application made under s.372 of the Act. Moreover, as OMS submitted, s.595(1) of the Act specifically provides that Fair Work Australia may deal with a dispute only if expressly authorised to do so under or in accordance with a provision of the Act other than s.595 itself. It does not appear that any such express authorisation within the meaning of s.595(1) could be considered to arise in the absence of agreement to participate in conference concerning an application made under s.372 of the Act.

[48] I have considered those aspects of the explanatory memorandum to which the applicant’s submissions referred in relation to s.595 of the Act at items 2285-2290. The aspects of the explanatory memorandum at item 2287 concerning general protections disputes need also to be read in conjunction with item 2286 – which reinforces the proposition that, by operation of s.595(1) of the Act, Fair Work Australia may deal with a dispute only if it is expressly authorised to do so. Further s.595(5) provides that Fair Work Australia must not exercise any of the powers referred to in s.595(2)-(3) except as authorised by s.595. Section 372 of the Act provides only that a person may “apply” to Fair Work Australia to deal with the dispute.

[49] While s.592(1) of the Act provides that, for the purpose of performing a function or exercising a power of Fair Work Australia, a person may be directed to attend a conference at a specified time and place, s.374(1) appears to provide a specific statutory stipulation involving agreement to participation in any conference. In the absence of agreement from a party to participate in a conference, I doubt the application can be progressed, in the manner pressed by the applicant, to dealing with the dispute through mediation, conciliation, or the making of a recommendation of expressing an opinion.

[50] Both the applicant and OMS referred to the decision of the Full Bench in Woolworths in support of their respective contentions. The applicant submitted the contentions about the construction of the relevant provisions were supported by the following quote from Woolworths, particularly the underlined words:

“[19] [Section 595] is concerned with the powers the tribunal may exercise in dealing with disputes. Section 595(1) provides that Fair Work Australia may only deal with a dispute if it is expressly authorised to do so. Section 595(2) provides that the tribunal may deal with a dispute by mediation, conciliation, making a recommendation or expressing an opinion subject to the qualification that it may not deal with the dispute by arbitration. Section 595(3) permits the tribunal to arbitrate if it is expressly authorised to do so. Section 595(4) operates to confer procedural powers. It seems to us clear enough from the text of these provisions that the legislature intended that Fair Work Australia can deploy voluntary methods of dispute resolution without the consent of the parties to the dispute, provided the dispute is one with which it is authorised to deal, but can only arbitrate if it has been specifically empowered to do so.”

[51] Despite the applicant’s submissions, I do not consider (as OMS submitted) that the underlined words in a case which concerned s.186(6) of the Act (Requirement for a term about settling disputes) relevantly assist in the proper construction to be applied to the conduct of a conference pursuant to an application made under s.372 of the Act. I have also considered the applicant’s submissions about the objects of the Act. While I accept the course promoted by the applicant would be generally consistent with the object in s.3(e), the specific provisions under consideration do not appear to countenance that course. Notwithstanding the applicant’s submissions about frustrating the conferencing process through a refusal to participate in a conference, the Act itself appears to contemplate such refusal at s.374 and, as I have noted, the explanatory memorandum describes the path that may be taken by an applicant if the parties to the dispute do not agree to participate in a conference.

[52] The applicant submitted that convening a conference would assist Fair Work Australia in providing advice on a general protections court application pursuant to what was described as its “obligation” under s.375 – which reads:

“375 Advice on general protections court application

If FWA considers, taking into account all the materials before it, that a general protections court application in relation to the dispute would not have a reasonable prospect of success, it must advise the parties accordingly.”

[53] Although the Act provides that Fair Work Australia must give advice to the parties in the circumstances contemplated in s.375 concerning an application that has been made pursuant to s.372 alleging contraventions other than those involving dismissal, it is difficult to envisage how this could occur in the absence of agreement of the parties to participate in a conference. That is, Fair Work Australia would not have had the benefit of the submissions of all parties in conference such as to allow the formation of a view about such advice. However, as noted earlier, while there is provision for the issuing of a s.369 certificate concerning contraventions involving dismissal under Subdivision A, there is no equivalent provision for s.372 applications in Subdivision B. The provisions concerning the giving of advice pursuant to s.375 do not seem to have any work to do when a party does not agree to participate in a conference, but that may be otherwise legislatively contemplated given the different approaches to the issuing of a certificate in relation to applications made under s.365 and those made under s.372.

[54] The applicant’s submissions adverted to a range of matters which were said to weigh in favour of the exercise of discretion by Fair Work Australia to conduct a conference. Given the respondents’ refusal to agree to participate in a conference, being a refusal which appears to be their prerogative given the operation of s.374(1)(b) of the Act, it does not appear that the discretionary matters referred to by the applicant relevantly arise for consideration.

[55] Despite the applicant’s submissions, I do not consider that, in the absence of agreement from OMS and the MUA to participate in a conference, it is otherwise open to make a direction concerning their attendance at any such conference. In the absence of agreement from the respondents to participate in a conference before Fair Work Australia, a course that would now appear to be available to the applicant, should he wish to pursue the alleged contraventions, is as contemplated in the explanatory memorandum. That is, as noted in item 1495 of the explanatory memorandum, where all the parties to the dispute do not agree to participate in a conference conducted by Fair Work Australia in relation to an application under s.372 of the Act, the person alleging a contravention may nonetheless make an application to the Federal Court or the Federal Magistrates Court for orders in relation to the alleged contravention.

[56] Given that OMS and the MUA, as the respondent parties, have declined to participate in conference proceedings conducted before Fair Work Australia and given also my findings thereto, the applicant may wish to either make any such further application as may be deemed appropriate or file a notice of discontinuance. Any such application or discontinuance should be directed to my Associate within 14 days.

COMMISSIONER

Appearances:

L. Maclou, solicitor, for the applicant.

D. Markovich, solicitor, for the first respondent.

Hearing details:

Sydney
2010
June 15.

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<Price code C, PR998267>