Lee Price v John Holland Group Pty Limited

[2013] FWC 3329

[2013] FWC 3329

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 365—General protections

Lee Price
v
John Holland Group Pty Limited and Others
(C2013/3301)

DEPUTY PRESIDENT SAMS SYDNEY, 4 JUNE 2013

Application to deal with contraventions involving dismissal - summary dismissal for misconduct - jurisdictional objections - identification of workplace right/s - whether ‘dispute’ exists between the parties - limitation on Commission’s jurisdiction under Part 3-1 of the Fair Work Act - substantial compliance with the Commission’s rules and practice directions - jurisdiction cannot be challenged on the grounds claimed - jurisdictional objections dismissed.

BACKGROUND

[1] On 22 February 2013, Mr Lee Price (the ‘applicant’) filed an application requesting that the Fair Work Commission (‘FWC’ or the ‘Commission’) deal with a general protections dispute, pursuant to s365 of the Fair Work Act 2009 (the ‘Act’). The application named John Holland Group Pty Ltd (‘John Holland’) as the first respondent and three senior managers of John Holland as co-respondents. The identities of the co-respondents are not materially relevant to this decision. The applicant was summarily dismissed on 24 December 2012 from his position as the Project Director on the South Rhodes Superway Project in South Australia. While the reasons for the applicant’s dismissal are not necessarily relevant for present purposes, it is sufficient to note that they were serious in that it was alleged the applicant was guilty ‘of misconduct, incompetence and conduct prejudicial to the commercial interests of John Holland.’

[2] The applicant’s F8 application, filed under s 365 of the Act, was straightforward and in relatively conventional terms. It alleged contraventions by all the respondents of ss 340 and 550 of the Act and identified the following adverse action against the applicant:

‘(a) Dismissing the Employee;

(b) Injuring the Employee and his employment;

(c) Altering the position of the Employee to the Employee’s prejudice; and

(d) Discriminating between the Employee and other employees of the Employer.’

[3] It was said that the adverse action was taken by the respondents because the applicant was, and had been enforcing his workplace rights, as defined in s 341 of the Act. Relevantly, there was no specificity as to the actual workplace right the applicant had, and was seeking to have enforced. For completeness, the application was filed exactly within the then statutory time frame of 60 days under s 366 of the Act (now 21 days by virtue of the passage of the Fair Work Amendment Act 2012, effective from 1 January 2013).

[4] The Commission listed the matter in the usual way for a private conference on 22 March 2013, pursuant to its obligation to do so under s 368 of the Act. However, the conference proceeded in anything but the usual way. Mr P Ludeke, Solicitor for John Holland sought the summary dismissal of the application on the grounds that, firstly, the applicant had failed to identify what workplace right/s it was alleged he was enforcing and consequently there could be no contravention of Part 3-1 of the Act, and secondly, in the absence of an identified workplace right/s, there can be no dispute between the parties for the purposes of Part 3-1 of the Act. In either case, so it was argued, the application was not made in accordance with the Act. In the result, the Commission’s jurisdiction could not be enlivened and the application must be dismissed, pursuant to s 587(1)(a) of the Act. Implicit in these submissions is that the Commission is prevented from exercising its powers under s 369 to issue a certificate of unsuccessful conciliation - the only trigger for the application being able to be further processed by the Federal Circuit Court or the Federal Court in respect of findings as to the alleged contraventions of Part 3-1 and, if so found, what relief or pecuniary damages arising therefrom is appropriate. Viewed in this way, if Mr Ludeke’s submissions are accepted, it seems obvious that all of the applicant’s rights alleged under Part 3-1 of the Act, would be effectively extinguished. As Mr Ludeke pressed his jurisdictional objections to have the application dismissed, I issued directions for the filing and service of submissions on that discrete matter. Mr Ludeke and Mr M Seck of Counsel for the applicant, spoke to their submissions at a hearing on 10 May 2013.

CONTENTIONS OF THE PARTIES

For the objector

[5] Mr Ludeke submitted that for the Commission’s jurisdiction to be enlivened under Part 3-1 of the Act, a workplace right/s must be identified in respect of which the employer is alleged to have taken adverse action. This was not merely a matter of form, as s 340 is a civil remedy provision involving potential significant penalties against a respondent (s 539(2)). Mr Ludeke added that it was not a matter of oversight by the applicant as he was legally represented and his solicitor had confirmed in correspondence to the respondent’s solicitor, that the workplace right was deliberately not identified in the purported application. As a result, it could be concluded by the Commission that the allegations of contraventions of the Act, are a ‘sham’ designed for another purpose.

[6] Mr Ludeke further submitted that the primary failures of the purported application are twofold. Firstly, there can be no application before the Commission because there could be no allegation that the applicant was dismissed in contravention of Part 3-1 of the Act. This is so because no workplace right/s were identified. Secondly, in the absence of any identified workplace right/s, there can be no dispute between the parties. The respondents do not know what workplace right the applicant had and what their contravention was. There cannot be a dispute if the respondent parties are unaware of how they are alleged to have contravened Part 3-1 of the Act; See: CEPU v Active Tree Services Pty Ltd [2011] FMCA 535 (‘CEPU v Active Tree Services).

[7] While Mr Ludeke noted that the Act does not define ‘dispute’ for the purposes of Part 3-1, Divison 8 requires a tangible dispute to exist between parties. In the absence of something real which is disputed between the parties, the jurisdiction of the Commission, and ultimately the Courts, is meaningless. It followed that relief cannot be provided in proceedings for a nonexistent dispute.

[8] Mr Ludeke put that the Commission is not merely a repository for the filing of a meaningless document or an irrelevant ‘stepping stone’ on the way to the Courts. On the contrary, the Commission has a real and important jurisdiction to ‘deal with the dispute’. The importance of the Commission’s role is underlined by the fact that a person ‘must not make’ a general protection court application in relation to the dispute, unless the Commission has issued a certificate under s 369 of the Act. In addition, the Commission can have no role to mediate, conciliate, make a recommendation or express an opinion, if no dispute exists between the parties.

[9] Mr Ludeke submitted that the Commission has the power to dismiss an application pursuant to s 587(1) which is not made in accordance with the Act, as is the case here.

[10] In relying on CEPU v Active Tree Services, Mr Ludeke put that there was a requirement on the applicant for full disclosure so that the Commission’s role is meaningful, positive and not subject to a moving target of claims. Allegations that have been ‘cobbled’ together later should not be permitted, particularly when an applicant has had 60 days to file an application.

[11] Mr Ludeke addressed the decision of the Federal Court in Shea v TruEnergy Services (No 1) [2012] FCA 628 (‘Shea’) which held that a dispute, the subject of a s 365 application, ‘could validly include new, additional or different claims from that in the FWC application, providing the essential basis of the dispute in the application remained.’ He argued that the essential basis of the dispute must be an identified workplace right/s. Here there was no substantive claim made because no workplace right/s were identified. Shea is not authority for the proposition that despite no real dispute, no identified workplace right/s or substantive claim, the Court will nevertheless allow wholesale additions to the dispute in the application. On the contrary, any new claims must be related to the dispute or the substantive claim. In any event, the Court was determining its own jurisdiction in Shea rather than determining that of the Commission. This was an important distinction.

[12] Mr Ludeke further submitted that the applicant should not be permitted to seek a correction or amendment of the application, nor to have the Commission waive any irregularity in the form, because of the deliberate failure of the applicant to identify a workplace right/s or to make a substantive claim.

[13] In oral submissions, Mr Ludeke responded to the written submissions filed by the applicant. He noted that the applicant claimed that he had made complaints about why the allegations against him were not being put in writing. However, these complaints did not make it into the application, despite the applicant having the benefit of the statutory 60 day time limit to do so and the benefit of legal advice. There was no explanation for the failure to articulate the complaint/s in the application. Mr Ludeke said that the mere nomination of the existence of workplace right/s (which every employee and employer has) does not demonstrate a particular right was in play or create a dispute. The applicant had made no mention of how he sought to enforce his workplace right/s. Mr Ludeke noted that an explanation had been sought in a letter of 6 March 2013 to the applicant’s solicitors. The claims were ‘cobbled together’ months after the event and not actually articulated until a letter to the respondent dated 22 March 2013.

[14] Mr Ludeke said the respondents did not have a problem with a lack of particulars in the application, but rather stressed that no workplace right/s were identified. The applicant did not provide any particulars of the workplace right/s and said he intended to raise them during the s 368 conference. It would appear the applicant had not even disclosed to his own lawyers the nature of the workplace right/s he had sought to exercise. Mr Ludeke suggested his submissions were more fundamental than simply saying that a workplace right/s must be identified. Rather, the workplace right/s must exist and must be allegedly contravened for there to be a dispute. Mr Ludeke did not accept that the F8 was just a proforma application. He asked, how the employer could respond if the sections of the Act were set out, but the allegations as to how they were breached were not?

[15] Further, Mr Ludeke noted the differences between this case and that of Shea where the applicant in that case had referred to a complaint of sexual harassment on 24 February 2010 and a complaint of the mishandling of earlier complaints on 15 June 2010. These were identified complaints giving rise to a real dispute.

For the applicant

[16] Mr Y Shariff of Counsel in written submissions noted that the applicant was not provided with any audit report or any other material said to support the serious, and potentially defamatory allegations against him. No report had been made to any regulatory authority concerning alleged mismanagement of financial controls or work health and safety issues. The applicant had disputed the allegations and made complaints and inquiries about why he was not given any details of the allegations, how it could be said he had breached the respondent’s own policies and why he was not dealt with according to the respondent’s Counselling and Disciplinary Procedures. Moreover, he could produce material to demonstrate the allegations had no basis in fact.

[17] Mr Shariff said that after the application was filed, the applicant’s solicitor offered to provide the respondents with further particulars. He denied that it was ever said that the applicant was, deliberately or otherwise, not prepared to identify his workplace right/s. Further details were provided to the respondents before the conciliation.

[18] Mr Shariff submitted that the construction of an artificial jurisdictional gateway such as to require a s 365 application to identify a workplace right/s has no foundation in the statutory text or the decided authorities. It was noted that nowhere in the relevant section is there a requirement for an application under s 365 to identify the workplace right/s. There is no need for there to be formal pleadings; See: Shea. Mr Shariff put that the following principles may be distilled from Shea:

‘(a) The Act does not prescribe the content, essential inclusions or level of detail of an application which may be made to the Commission under s365 of the FW Act.

(b) No formal statement akin to a pleading is prescribed.

(c) There is no requirement for an applicant’s principal claims to be comprehensively adumbrated in the application, this would be inconsistent with the effective operation of the application and contemplated process. Nor is an applicant required exhaustively and accurately to frame his or her case in essentially final form at the application stage.

(d) The dispute identified in general terms under s365 of the FW Act is likely to be further elaborated or described not only in the FWA application but also in the respondent’s response (if any) and/or the FWA conference conducted to deal with the dispute.

(e) A respondent may become fully informed of an applicant’s ultimate case through the informal, essentially preliminary character of the application and conciliation process.

(f) The dispute is not to be confined to the applicant’s substantial claims in the FWA application.’

[19] Mr Shariff put that the decision in CEPU v Active Tree Services was no longer good law and the decision in Shea was now the correct authority. Mr Shariff noted that the applicant’s claim was further particularised in a letter of 22 March 2013, but the respondents chose not to engage with the applicant over his claims.

[20] It was put that, as a matter of statutory construction, the word ‘dispute’ must be construed by reference to the purpose, subject, scope and content of Division 8 of Part 3-1; See: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 and Chang v Laidley Shire Council (2007) 234 CLR 1. The decision in Shea does not support the respondent’s interpretation of the word ‘dispute’. It is binding on the Commission.

[21] Mr Shariff also submitted that the Commission could amend the application on any terms it considered appropriate and, if there was a deficiency, it could be rectified by an amendment (s 586(a)) or the applicant being permitted to file a fresh application ‘out if time’; See: s 366(2) of the Act.

[22] The applicant submitted the respondent’s objection to jurisdiction should be dismissed. He wished to be heard on the question of costs.

[23] In oral submissions, Mr Seck of Counsel said that throughout its 109 year history, the Commission and its predecessors have always focussed on the practical resolution of disputes between parties. This focus is underscored in the current context by the terms of s 577 which states:

‘577 The FWC 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.’

[24] The Commission would always go directly to the heart of a matter without looking at technical issues or matters of form; See: Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 and Concut v CFMEU PR956750, where McCarthy DP details the history of the earlier corresponding provisions to s 577 of the Act.

[25] Mr Seck emphasised that the Commission’s powers under ss368, 369 and 370 are not to determine the legal rights and obligations of the parties. Rather, the Commission’s role is an advisory one. The expression of an opinion, or of a view on prospects of success does not have any legal consequence.

[26] Mr Seck observed that the Act itself does not prescribe what needs to be contained in an application. It is theFair Work Commission’s Rules which does that and s 585 of the Act deals with the Rules in this way:

‘An application to the FWC must be in accordance with the procedural rules (if any) relating to applications of that kind.

[27] This demonstrates that the application is merely a procedure, not a ground for determining jurisdiction. Even the Rules relating to forms, do not require strict compliance. The Fair Work Commission Rules 6.4(a) and (b) are as follows:

‘6.4 If these Rules require that a form be used, it is sufficient compliance if the document:

(a) is substantially in accordance with the required form; or

(b) has only such variations as the nature of the case requires.’

[28] The Form F8 does not require the identification of the workplace right, merely the section of the Act allegedly contravened.

[29] Mr Seck also referred to various informative documents available to applicants from the Commission as demonstrating that it is nowhere said that the workplace right/s have to be detailed. Indeed, the focus is on the s 368 conference. Mr Seck submitted that this application fully complies, or substantially complies, with the Commission’s Rules and Forms.

[30] Mr Seck took up my comments during the proceedings in relation to s 372 and asked, ‘Why should an ex-employee be required to do certain things which a current employee would not be required to do?’ It would erect an arbitrary difference which has no basis in policy or substance.

[31] Mr Seck said that if the Commission did not consider it had sufficient information, it could always direct the parties to provide more information or encourage them to disclose information to each other. Mr Seck then dealt with a number of aspects of the Shea decision which, in summary, demonstrated that the application itself is never going to be ‘the be all and end all’ of the process. He noted that in Vanden Driesen v Edith Cowan University [2012] FMCA 735 (‘Vanden Driesen’), the Federal Magistrates Court (as it then was), in considering the dichotomy between Shea and Active Tree Services found that the latter was no longer good law.

CONSIDERATION

Relevant legislative provisions

[32] The provisions of the Act relevant to these proceedings are found in Chapter 3 - Part 3-1 which is entitled General Protections. The Guide to Part 3-1 is set out in s 334 and states, in relation to Division 8 Compliance, that, in most cases, a general protections dispute involving dismissal will be dealt with by a Court only if the dispute is not resolved by the Commission conducting a conference. Division 1 of Part 3-1 is an Introduction to the Part and sets out its objects at s 336, including the provision of relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of Part 3-1. Division 2 of Part 3-1 sets out the circumstances in which the Part applies.

[33] Division 4 deals with workplace rights and the protection of such rights. Section 340 provides that a person must not take adverse action against another person because the person has a workplace right, and by virtue of s 341(1)(c) a person has a workplace right if the person is an employee and is able to make a complaint or inquiry in relation to his or her employment.

[34] Section 342(1) sets out the circumstances in which a person takes adverse action against another person. Item 1 of the table in s 342(1) provides that an employer takes adverse action against an employee, if the employer:

(a) dismisses the employee; or

(b) injures the employee in his or her employment; or

(c) alters the position of the employee to the employee’s prejudice; or

(d) discriminates between the employee and other employees of the employer.

I note this wording is replicated in the applicant’s F8 application in this case.

[35] Division 5 provides other protections, including protection from discrimination. Section 351(1) provides, inter alia, that an employer must not take adverse action against an employee because of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

[36] Division 8 of Part 3-1 are the substantive provisions. The division is broken into two subdivisions. Subdivision A deals with ‘Contraventions involving dismissal’. Subdivision B deals with ‘Other contraventions’. I will come back to these later provisions. Section 365 is found in subdivision A and provides as follows:

‘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.

[37] Also found in subdivision A - Contraventions Involving Dismissal - are ss 366 through 369. s 366 deals with applications made ‘out of time’ and s 367 deals with applicable fees; both are not relevant here. ss 368 and 369 deal with Conferences and the issuance of the certificate. They are as follows:

‘368 Conferences

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

Note 1: For conferences, see section 592.

Note 2: The FWC 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 the FWC 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), the FWC must conduct the conference in private.

369 Certificate if dispute not resolved

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

[38] ss 370 and 371 deal with general protection court applications as follows:

‘370 Advice on general protections court application

(1) If the FWC 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

FWC conference to be held before application

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

(a) the FWC 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.’

[39] As I mentioned earlier, the acceptance of Mr Ludeke’s submissions would result in the extinguishment of all of the applicant’s assumed rights under Part 3-1 of the Act. In my view, the powers of the Commission to extinguish a party’s rights on a preliminary, or threshold basis, should only be exercised judiciously and carefully; a fortiori, when an application under Part 3-1 of the Act requires no formal pleadings and no formal evidence to be presented, let alone tested. On the other hand, there are obvious attractions and public policy considerations to determining a matter on a preliminary basis; namely, in order to avoid the costs, time and inconvenience of protracted litigation. In this respect, I refer to what Kirby P observed in Majik MarketsPty Limited v Brake and Service Centre Drummoyne Pty Limited (1991) 28 NSWLR 443 at:

‘such a course is often a sensible one where a party has a substantial threshold argument which, if it succeeds, will knock out the claim and save the costs and inconvenience that attend a protracted hearing of proceedings on the merits. But, as with any threshold relief of this kind, it must be conserved to a clear case where it is plain that the innovation of the jurisdiction impugned is wholly misconceived or, upon analysis, lacks an arguable legal foundation. Necessarily, refusal of relief at the threshold will not finally determine that jurisdiction exists for any order which the Commission might make between the parties. This is because, to secure relief, the claimants must demonstrate that no order could be made which would be within jurisdiction. This burden, which is a heavy one, was accepted by the claimants.’

[40] The principles of the summary termination of an action at a preliminary stage, by a Court, and on what basis, was examined by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125:

‘The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. I have examined the case law on the subject to some of which I was referred in argument and to which I append a list of references. There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a court was invoked and others in cases in which counterpart rules to Order 26, r 18, were the suggested source of authority to deal summarily with the claim in question. It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with action of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The text to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’; ‘ be manifest that to allow them’ (the pleadings) ‘to stand would involve useless expense’.

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim even if prove, cannot succeed; or ‘so manifest on the view of the pleadings, merely reading through them, that is a case that does not admit of reasonable argument’; ‘so to speak apparent at a glance’.

As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same.’

[41] Bearing these authorities in mind, I am aware that the views of members of the Commission vary as to the extent of the Commission’s powers under Part 3-1 of the Act. On the one hand, it is said the Commission’s powers are limited to those specifically set out in the Part, being:

• to determine whether to accept an application filed out of time (s 366);



• to conduct a conference (s 368);



• to issue a certificate if the dispute is not resolved (s 369); and



• providing advice that the application would have no reasonable prospects of success (s 370).

[42] The contrary view is that the question of whether an employee has been dismissed is a jurisdictional prerequisite to a valid application under s 365 of the Act. The single member decisions in this respect have invariably dealt with the question of whether the person had been dismissed and not to other jurisdictional issues. As I apprehend it, there is no Full Bench authority on the extent of the Commission’s powers under Part 3-1 of the Act, and more particularly there is no authority at all on what the Commission is being asked by Mr Ludeke to decidein this case. Given these circumstances, and the serious ramifications of what I am being asked to determine here, I intend to proceed with utmost caution and circumspection.

[43] That said, there is one FWC Full Bench authority supporting the view that the Commission’s jurisdiction in relation to unlawful termination applications under Part 6.4 of the Act, is limited to conducting a conference (s 776), providing a certificate of unsuccessful conciliation (s 777) and providing advice that an application would have no reasonable prospects of success (s 778). I will come to that decision shortly.

[44] Sections 776-778 are in the following terms:

‘776 Conferences

(1) If an application is made under section 773, the FWC must conduct a conference to deal with the dispute.

Note 1: For conferences, see section 592.

Note 2: The FWC 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), the FWC must conduct the conference in private.

777 Certificate if dispute not resolved

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

778 Advice on unlawful termination court application

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

(2) An unlawful termination court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of subsection 772(1).’

[45] As will be self evident from these provisions, there are many similarities between the provisions of Part 3-1 and Part 6-4 of the Act. Given the relevant symmetry between the two parts, I am comfortably satisfied that the decision of the Full Bench in Hetherington-Gregory v Harrington Village Motel[2012] FWAFB 2104, provides appropriate guidance as to the powers of the Commission under Part 3-1 of the Act. At paragraphs 7 to 10 the Full Bench said:

‘[7] In our view, the application for the order to produce by Ms Hetherington-Gregory for the purposes of her appeal is based on a fundamental misapprehension as to the nature of a s.776 conference and the function and powers of a Member of Fair Work Australia in conducting such a conference.

[8] The function of a Member of Fair Work Australia in conducting a s.776 conference is to facilitate a resolution of the claim reflected in the application through an agreement of the parties. A Fair Work Australia Member, in conducting a s.776 conference, is not empowered to determine the application or otherwise impose an outcome on the parties.

[9] The statutory requirements upon a Member in relation to a s.776 conference are:

• If satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, the Fair Work Australia Member must issue a certificate to that effect (s.777); and



• If the Member considers, taking into account all the materials before it, that an unlawful termination court application in relation to the dispute would not have a reasonable prospect of success, it must advise the parties accordingly (s.778).

[10] A s.776 conference does not involve the hearing of evidence or the undertaking of a hearing involving an assessment of the full evidentiary case which would arise in a hearing in the Federal Magistrates Court or the Federal Court of Australia. It is a conciliation process based on the (often limited) factual material raised by the parties [my emphasis].’

[46] I think it uncontroversial that the powers of the Commission under Part 3-1 of the Act do not involve the imposition of binding legal rights or obligations on parties. In my assessment, this is both the statutory and practical purpose of the provisions under this Part. The limitations of the Commission’s powers under the Part are reinforced by the use of the word ‘advice’, in s 370 and the expressed exclusion of arbitration or determination of any matter when dealing with a dispute during a conference (see Note 2).

[47] It seems to me that the legislature deliberately intended to set limits on the powers of the Commission under this Part while, at the same time, assigning a facilitative and advisory role for the Commission by calling on the Commission’s experience and expertise in conciliating disputes between employees and employers. It no doubt assumed a high success rate from this process, which in a sense could be viewed as a ‘filter’ to the general protection claims from costly and time consuming litigation in the Courts.

[48] Seen another way, the Commission is the key to opening the door for the determination of adverse action claims by the Courts. To state the obvious, if the legislature had intended to widen the Commission’s powers or replicate them from other sections of the Act, then it surely would have done so in a clear and explicit way.

[49] In my view, if Mr Ludeke’s submissions are correct, it would require the Commission to determine whether there was a workplace right, what that workplace right was and whether there was a ‘dispute’ between the parties by defining what the dispute was about. As I said earlier, I consider that this would not only be beyond the powers of the Commission under this Part, but it would also invite the duplication of proceedings before the Commission and the Federal Circuit Court or the Federal Court. Duplication would be inconsistent with the objects of the Act and the fair disposition of proceedings of this kind. It would be inefficient and costly for the administration of justice. Moreover, it is not too difficult to imagine an outcome where two different bodies dealing with the same subject matter arrive at different, even opposing conclusions. Such an outcome ought to be discouraged. It is a powerfully compelling argument against the course pressed on me by Mr Ludeke in this case.

[50] I turn now to the provisions of Subdivision B of Division 8, which deal with general protection applications not involving a dismissal, which are as follows:

‘372 Application for the FWC 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 the FWC under section 365 for the FWC to deal with the dispute;

the person may apply to the FWC under this section for the FWC 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 the FWC 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;

the FWC must conduct a conference to deal with the dispute.

Note 1: For conferences, see section 592.

Note 2: The FWC 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), the FWC must conduct the conference in private.

375 Advice on general protections court application

If the FWC 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.’

[51] I do not think that the legislature intended to apply a different approach to general protection disputes involving a dismissal and general protection disputes where the employee remains employed (s 372), save of course for the obvious; there is no time limit for making a claim under s 372, nor is there any requirement for the parties to agree to attend a conference (s 374(1)(b)) and there is no trigger for further court action (the s 369 certificate).

[52] In any event, even if I am wrong about the Commission’s jurisdiction, I am satisfied that the Form F8 filed by the applicant complied, or at the very least, substantially complied, with the Commission’s Rules, Forms, and information guides provided at large to the public. For example, rule 6.4 of the Commission’s Rules provides as follows:

‘6.4 If these Rules require that a form be used, it is sufficient compliance if the document:

(a) is substantially in accordance with the required form; or

(b) has only such variations as the nature of the case requires.’

[53] The relevant Form F8 at Q2 says:

‘List the section(s) of Part 3-1 that the Respondent is alleged to have contravened. See for assistance in identifying the correct section(s).’

[54] The FWC Guide on General Protections describes ‘workplace rights’ as

‘The term ‘workplace right’ has a broad meaning. A person has a workplace right if he or she:

● has an entitlement under a workplace law or a workplace instrument such as an award or enterprise agreement

● is able to initiate a proceeding under a workplace law or workplace instrument

● is able to make a complaint or inquiry in relation to their employment.”

It then says:

‘when you come to the Fair Work Commission for a conference you will need to:

● identify the right you have exercised or attempted to exercise


● identify the relevant workplace instrument (such as an award or enterprise agreement) or workplace law that contains that right


● describe the adverse action taken and how it affected you.’

[55] I agree with Mr Seck that neither the Act, the Commission’s Rules, the Forms or the guidelines to parties, mandate the identification of the workplace right/s alleged to have been exercised by the employee, the consequence of which resulted in adverse action taken by the employer against the employee. In my view, adopting Mr Ludeke’s technical approach to the filing procedure would be a ‘triumph of form over substance,’ inconsistent with the objects of the Act. Moreover, the authority in Shea is entirely apposite to the present case. Far from assisting Mr Ludeke’s submission, the judgement stands for the opposite. At paragraphs 64, Dodds-Streeton J said:

’64 While there are a number of different potential bases of contravention of Part 3-1, the Act does not prescribe the content, essential inclusions or level of detail of the application which may be made to FWA under s 365. The Form F8 headed “Application for FWA to Deal with a General Protections Dispute – Fair Work Act 2009 – ss 365, 372” completed by the applicant in this case is a short document setting out basic questions, including “Alleged contravention(s) of Part 3-1”, “Section(s) allegedly contravened” and “Description of alleged contravention(s)”. In the present case, the applicant’s description was contained in an annexure. In practice, the dispute identified in general terms under s 365 is likely to be further elaborated or described not only in the FWA application but also in the respondent’s response (if any) and/or the FWA conference conducted to deal with the dispute [my emphasis].’

And at paragraphs 86 to 90 Her Honour said:

‘86 More importantly, a requirement that the applicant’s principal claims in a court application first be comprehensively adumbrated in the FWA application appears inconsistent with the effective operation of the FWA application and contemplated process.

87 The FWA application must (subject to any extension) be made within a relatively short period from the date on which the dismissal takes effect. No formal statement akin to a pleading is prescribed and the legislation neither assumes nor requires the involvement of legal representatives.

88 If misstatement or omission from the FWA application excluded a claim from a subsequent court application, there would be pressure precisely to articulate claims and unselectively to include all potentially relevant matters at a preliminary stage. The applicant would in effect be required exhaustively and accurately to frame his or her case in essentially final form at the FWA application stage, in order to avoid the prohibition on litigation.

89 The omission of a significant claim from the FWA application would not, on the respondent’s construction, absolutely bar its inclusion in a subsequent court application, as the applicant might secure an additional certificate and any necessary extension of time from FWA. Such a course would, however, be uncertain and cumbersome. The FWA application and process could constitute a draconian hurdle, rather than affording the opportunity for conciliation in a relatively informal forum.

90 Therefore, while on the respondent’s construction the FWA conference would be more comprehensively based, and a respondent, at least, fully informed of an applicant’s ultimate case, the informal, essentially preliminary character of the FWA application and process would be significantly compromised [my emphasis].’

[56] Even though I am bound by the decision in Shea, I nevertheless respectfully find myself in complete agreement with the comments expressed by Her Honour. I note the judgment of the Federal Magistrates Court in Vanden Driesen that the relevant finding in Active Tree Services is no longer good law.

[57] Let me hasten to add that there is nothing to prevent an employee from identifying in their application, the workplace right/s said to have been exercised which resulted in the alleged adverse action. Nor is the employee prevented from providing more helpful and fulsome details of the alleged facts and circumstances surrounding his/her dismissal. I would not wish anything said in this decision to discourage an applicant from providing additional background information to the matter, including what relief is being sought, before the s 368 conference takes place. Naturally, I would welcome such a practice; if only as a means of putting the respondent and the Commission on notice as to being better prepared for dealing with the application. However, that is not the question which arises in this case.

[58] Finally, much of what I said earlier in this decision is reinforced by the objects of the Act, the statutory requirements on the Commission and what matters the Commission must take into account in the exercise of its functions and powers under the Act.

[59] s 577(b) states that the Commission must perform its functions and exercise its powers in a manner which:

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

s 578(b) states that in the exercise of its powers and functions, the Commission must take into account:

‘(b) equity, good conscience and the merits of the matter;’

[60] For the aforementioned reasons, I dismiss the jurisdictional objections of the respondents. The application is competently before the Commission.

DISPOSITION OF THE PROCEEDINGS

[61] Mr Seck submitted that if I found in the applicant’s favour, I should sign forthwith the s369 certificate certifying that all reasonable attempts to resolve the dispute have been, or are unlikely to be, successful. I am conscious of the stridently opposed positions of the parties and the clear impression I garnered from the earlier conference that resolving the matter was most unlikely. Nevertheless, I propose to give the respondents a further opportunity to indicate why I should not sign the s 369 certificate. Unless, so advised by 4pm on 11 June 2013, I will sign the certificate as requested by the applicant. On the question of costs, any such application is to be made in accordance with s 377 of the Act. Subject to these matters, the proceedings are concluded insofar as the Commission is concerned.

DEPUTY PRESIDENT

Appearances:

M Seck of Counsel for the applicant.

P Ludeke, Solicitor, for the respondent.

Hearing details:

2013.

Sydney:

March 22,

April 4,

May 10.

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