Linett v Australian Education Union

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Linett v Australian Education Union [2002] FCAFC 30

Linett v Australian Education Union [2002] FCA 157

NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC)

The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002.  Single Judge judgments will not be affected and will retain the FCA medium neutral citation.

The transitional arrangements are as follows:

  • All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.
  • All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series. 
  • All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.

FEDERAL COURT OF AUSTRALIA

Linett v Australian Education Union [2002] FCA 157

INDUSTRIAL LAW – application for registration of organisation – registration refused by Full Bench of Australian Industrial Relations Commission

ADMINISTRATIVE LAW – application for prerogative relief against Full Bench – whether Full Bench erred in law – whether error was jurisdictional – whether Full Bench had regard to wrong question – whether this amounted to error within jurisdiction or error permitting judicial review – whether failure to consider all relevant material amounted to jurisdictional error – whether such error reviewable – whether distinction between jurisdictional and non jurisdictional errors of law on the part of a tribunal maintained

Workplace Relations Act1996 (Cth): s 189.

Craig v South Australia (1995) 184 CLR 163 applied
Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (1999) 93 FCR 317 applied
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 194 CLR 194 applied
Minister for Immigration and Multicultural Affairs v Yusuf [2001] FCA 30; 180 ALR 1 applied
Jones v Dunkel (1959) 101 CLR 298 considered
Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 applied
Edwards v Justice Giudice (1999) 94 FCR 561 discussed
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 applied
Parisienne Basket Shoes Pty Ltd v Whyte (1937) 59 CLR 369 referred to
R v Taylor; Ex parte Professional Officers’ Association – Commonwealth Public Service (1951) 82 CLR 177 referred to

EX PARTE: IAN LINETT AND ANNE COUGHLIN AND THE VICTORIAN PRINCIPALS FEDERATIONS v THE HONOURABLE VICE PRESIDENT McINTYRE, THE HONOURABLE SENIOR DEPUTY PRESIDENT DUNCAN AND THE HONOURABLE COMMISSIONER DEEGAN AS MEMBERS OF A FULL BENCH FOR THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION and AUSTRALIAN EDUCATION UNION

V 988 of 2001

WILCOX, KIEFEL and MARSHALL JJ

15 MARCH 2002
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 988 of 2001

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

EX PARTE:  IAN LINETT AND ANNE COUGHLIN AND THE VICTORIAN PRINCIPALS FEDERATIONS
APPLICANT

AND:

THE HONOURABLE VICE PRESIDENT McINTYRE, THE HONOURABLE SENIOR DEPUTY PRESIDENT DUNCAN AND THE HONOURABLE COMMISSIONER DEEGAN AS MEMBERS OF A FULL BENCH FOR THE AUSTRALIAN INDUSTRIAL RELATIONS…

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Details
Case
[2002] FCAFC 30
Decision Date

CaseChat Overview and Summary

The case of Linett v Australian Education Union involved the Victorian Principals Federation (VPF) seeking registration under the relevant Act. The Australian Education Union (AEU) opposed the application, leading to a series of hearings and decisions by the Commission. The Full Bench of the Commission, after initially staying the decision of Senior Deputy President Williams, eventually dismissed the VPF's application for registration. The AEU subsequently applied for leave to appeal, which was granted, and the Full Bench issued a decision quashing the registration decision and dismissing the VPF's application. The VPF then sought constitutional relief, which was ultimately dismissed by the Court.

The legal issues before the Court centred on the interpretation and application of the criteria set out in the Act for the registration of employee associations. Specifically, the Court had to consider whether the Full Bench's decision to dismiss the VPF's application for registration was legally sound. This involved examining whether the Full Bench correctly interpreted the evidence, particularly in light of new evidence presented on appeal, and whether it properly applied the statutory criteria to the facts of the case.

The Court found that the Full Bench's decision was legally sound. It noted that the Full Bench had correctly identified certain errors in the initial decision but had not disposed of the appeal at that stage. Instead, it listed the appeal for further submissions, which the Full Bench subsequently considered in reaching its final decision. The Court found that the Full Bench was entitled to accept the additional evidence presented by the AEU and to draw the inferences that it did from that evidence. It also found that the Full Bench had properly applied the statutory criteria to the facts of the case and had reached a legally sound decision in dismissing the VPF's application for registration.

The Court dismissed the VPF's application for constitutional relief. It ordered that the application be dismissed and that leave be reserved to the AEU to apply for costs within 21 days.

Orders

Orders of the court

1. The application be dismissed.

2. Leave be reserved to the second respondent to make an application for costs, if it so desires; any application to be made in written submissions provided within 21 days.

Background

Background to the litigation

On 12 February 2002, the Court informed the parties that it was of the view that the application should be dismissed. An order was made to that effect. What follows are the reasons for my concurrence in the making of that order.Factual background to the application On 13 February 1998, the VPF was formed in part to carry on the work of another body, also known as the Victorian Principals Federation (“the old VPF”), and to achieve federal registration under the Act. The old VPF was established in 1993. A general meeting of the VPF was held on 13 March 1998, at which it was noted that the Council of the old VPF had resolved that same day as follows:“Council noting the report of the President on the recent establishment of the Victorian Principals Federation resolves that the work and functions of this body should be carried forward by the Victorian Principals Federation established on 13 February 1998.Council, further, gives and assigns all of its entitlements to any assets or rights together with any liabilities to the established Victorian Principals Federation.Council further resolves that no day be fixed for the next meeting of Council.” The minutes of the VPF meeting on 13 March 1998 record that:“As a consequence the following motion was put:Motion: ‘This general meeting resolves that the Victorian Principals Federation carry forward the work of the body previously known by that name.’Michael Small: Southern Cross PS/Ray Heathcote: Mt Eliza PS Carried unanimously.” On 16 March 1998, an application was lodged in the Commission for the registration of the VPF. The application was heard by Senior Deputy President Williams in late 1998 and early 1999. The Australian Education Union (“AEU”) was the sole objector to the application. On 16 November 1999, Williams SDP issued a decision granting registration to the VPF (“the decision of Williams SDP”). Subsequently, the AEU lodged an application for leave to appeal pursuant to s 45 of the Act. As a result, the decision of Williams SDP was stayed by Vice President McIntyre. The application for leave to appeal was heard by a Full Bench of the Commission (McIntyre VP, Duncan DP and Deegan C) on 6, 7 and 8 June 2000. In its reasons for decision dated 19 July 2000 (“the first Full Bench decision”), the Full Bench identified certain errors in the decision of Williams SDP. Rather than making an order disposing of the application before it, however, the Full Bench listed “the appeal” for further submissions. Further hearings occurred before the Full Bench on various days between August 2000 and March 2001. On 8 June 2001, the Full Bench published its reasons for decision (“the second Full Bench decision”) which quashed the decision of Williams SDP and dismissed the application for registration. The second Full Bench decision is now the subject of the instant application for constitutional relief.Summary of the various Commission decisions(i) The decision of Williams SDP The following material pertinent points were made in the decision of Williams SDP:· The VPF is “the evolutionary development of an industrial association for members of the principal class”.· The VPF is the “industrial successor” to the old VPF.· Persons eligible for membership of the VPF may be employed by school councils as well as by the State of Victoria.· The VPF is a genuine association which acts in what it perceives to be the best interests of its members.· The VPF is an association “for furthering or protecting the interests of its members”.· The “State of Victoria, through the Department of Education (the DOE) as an employer of members of the principal class, either directly or indirectly through the professional associations, has the capacity to control or improperly influence the VPF”.· The VPF and its predecessors, including the old VPF, had different policies to those of the AEU, but that “does not mean that [the VPF] is under the control of or is improperly influenced by external elements, let alone the DOE”.· The VPF “is free from control by, or improper influence from, any employer.”· The descriptions contained in s 188 of the Act of the associations of employees that may apply for registration are not mutually exclusive. It is a matter of choice for the relevant association to apply under s 189(1) or s 189(4) of the Act.(ii) The first Full Bench decision

Evidence

Evidence Before The Court

At [235] Williams SDP concluded that, in light of the above, he was:“… satisfied that the VPF is a genuine association and one which is for furthering or protecting the interests of its members.”Treatment of s 189(1)(a) evidence by the Full Bench on appeal At [47] of its second decision, the Full Bench accepted that the conclusions reached by Williams SDP regarding s 189(1)(a) were open to him “on the evidence before him”. The Full Bench then continued as follows:“However, in light of the further evidence admitted on appeal (which, of course, was not before his Honour) we have come to the conclusion that the criteria in at least paragraphs (a) and (aa) of s189(1) have not been met.” Earlier at [21], the Full Bench noted that the AEU had submitted that “the further evidence, if admitted, would, when considered with the evidence before Williams SDP, reinforce its submission … that his Honour’s conclusions with respect to a number of criteria in s 189(1) were erroneous.” The Full Bench described those documents tendered by the AEU on appeal and accepted by it as further evidence as follows:“The AEU’s further evidence primarily comprised documents relating to dealings between the Department of Education (the employer), on the one hand, and other associations and predecessors of the VPF on the other hand. There are 86 such documents. They fill two large folders. The AEU also tendered a large folder containing transcript of proceedings before, and decisions of, the Commission in relation to a number of cases involving the AEU and the employer between 1992 and 1998.Included in the documents tendered by the AEU are:(1)a memorandum dated 26 May 1993 from John Pascoe, Acting General Manager People Services, to Frank Peck, Acting General Manager Quality Assurance, including:“In addition, an amount of $8,500 has been agreed to be paid by the Director to the VPF as reimbursement for Geoff Head’s IRC deliberations on behalf of DSE. I propose that this would be paid on invoice rather than create a service agreement specifically for this purpose.”(Geoff Head, referred to above, was the President of the old VPF and DSE is Directorate of School Education.)(2)a briefing dated 28 May 1993 from the General Manager Quality Assurance including:“That the Director authorise an additional amount of $8,500 to be paid to the VPF as reimbursement for the report Geoff Head provided to the IRC on the Directorates behalf. This would be paid through a purchase order using the grants charge line.”and“Arrange with the General Manager, Finance and Administration for the VPF to be reimbursed $8,500 for deliberations at the IRC.”(3)a proposed letter from Geoff Spring, Director of School Education, to Peter Martin, President of the VASSP, and Peter Paul, President of VPPA, including:“You will be aware from your negotiations with the Management Development Unit that I have endorsed a financial package to assist the principal’s associations to provide specific service and programs to the Directorate during the 1992-3 and 1993-94 financial years:These are summarised below:

Decision

Reasons for decision

The following material pertinent points were made in the first Full Bench decision:· The VPF is not an enterprise association because the business of providing State education in Victoria is not carried out by a single employer - “There is one predominant employer, the State of Victoria, but there is also a number of relatively small employers, namely, school councils established and operating under the Education Act.”· Section 189(1) of the Act provided the criteria which applied to the VPF as an association (“other than an enterprise association”) when applying for registration.· The decision at first instance failed to have regard to s 189(5) of the Act in that it did not consider whether there was any recent conduct by the VPF or its members which would have provided grounds for an application for deregistration of the VPF had it been registered when any such conduct occurred.(iii) The second Full Bench decision The following material pertinent points were made in the second Full Bench decision:· There was no recent conduct by the VPF or its members which would have provided grounds for an application for deregistration of the VPF had it been registered. Accordingly the requirements of s 189(5) were satisfied.· The conclusions of Williams SDP regarding s 189(1)(a) and (aa), inter alia, were open to his Honour on the evidence before him. Section 189(1)(a) deals with the criterion that an association applying for registration must be a genuine one and one “for furthering or protecting the interests of its members”. Section 189(1)(aa) deals with the criterion that an association of employees be “free from control by, or improper influence from, an employer…”.· Further evidence was tendered by the AEU but no additional evidence was tendered by the VPF.· In the absence of evidence in response to such further evidence the Full Bench accepted the inferences contended by the AEU to arise from the additional evidence.· The Full Bench noted the VPF’s reliance on the industrial activities of its predecessors but reached the conclusion, based on the unchallenged new evidence, that the VPF had failed to establish that it was a genuine association or an association for furthering or protecting the interests of its members as referred to in s 189(1)(a) of the Act.· The further evidence demonstrated that the old VPF acted on behalf of the State of Victoria in 1993 in making submissions to the Commission and accepted $8,500 from the State to cover legal expenses incurred in making those submissions.· The VPF consequently also failed to establish that it was free from employer control or improper influence by an employer with the meaning of s 189(1)(aa) of the Act.· The Full Bench granted the AEU leave to appeal, quashed the decision at first instance and decided that the application by the VPF for registration as an association be dismissed.The nature of the proceedings before the Full Bench The decision of Williams SDP was a decision in respect of which an appeal lay to a Full Bench; see s 45(1)(f) of the Act which provides that:“Subject to this Act, an appeal lies to a Full Bench, with the leave of the Full Bench, against:…(f) a decision (other than in relation to a prescribed matter) in a proceeding before a designated Presidential Member acting in that capacity.”

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.