National Retail Association v Fair Work Commission

[2014] FCA 583

FEDERAL COURT OF AUSTRALIA

National Retail Association v Fair Work Commission [2014] FCA 583

Citation:

National Retail Association v Fair Work Commission [2014] FCA 583

Parties:

NATIONAL RETAIL ASSOCIATION v FAIR WORK COMMISSION and SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION

File number:

QUD 140 of 2014

Judge:

LOGAN J

Date of judgment:

28 May 2014

Catchwords:

PRACTICE AND PROCEDURE – industrial law – application for joinder – without joiner, no appropriate contradictor – no objection as to joinder application

Held:  applicant in interlocutory applicant to be named second respondent  

Legislation:

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)
Judiciary Act 1903 (Cth) s 39B

Cases cited:

R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13

Date of hearing:

28 May 2014

Place:

Brisbane

Division:

FAIR WORK DIVISION

Category:

Catchwords

Number of paragraphs:

9

Counsel for the Applicant:

Mr J Malouf

Solicitor for the Applicant:

National Retail Association Legal

Counsel for the First Respondent:

The First Respondent did not appear

Solicitor for the Second Respondent:

Macpherson & Kelley Lawyers as town agent for AJ Macken & Co

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION	QUD 140 of 2014

BETWEEN:

NATIONAL RETAIL ASSOCIATION
Applicant

AND:

FAIR WORK COMMISSION
First Respondent

SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION
Second Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	28 MAY 2014
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The Shop, Distributive and Allied Employees Association be joined as Second Respondent.

2.The Fair Work Commission become the First Respondent to the proceedings.

3.The title of the proceedings be amended accordingly.

4.The District Registrar’s directions of 30 April 2014 be varied by inserting the adjective “Second” before “Respondent” wherever appearing.

5.Liberty to apply.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION	QUD 140 of 2014

BETWEEN:

NATIONAL RETAIL ASSOCIATION
Applicant

AND:

FAIR WORK COMMISSION
First Respondent

SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION
Second Respondent

JUDGE:	LOGAN J
DATE:	28 MAY 2014
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The National Retail Association (NRA) has applied pursuant to s 39B of the Judiciary Act 1903 (Cth) for an order in the nature of a mandamus to be directed to the Fair Work Commission (Commission) in respect of a decision of a Full Bench of that Commission dated 21 March 2014. The NRA has also sought, by way of ancillary relief, an order of certiorari calling up the decision and seeking that it be quashed.

2. As originally formulated, the only named respondent to the application was the Commission. By direction of the Chief Justice, the s 39B application which is one in the original jurisdiction of the Court, is to be returned, as it permissibly can be before a Full Court. That, notwithstanding, it lies within the jurisdiction of a single judge of the Court to deal with interlocutory applications such as an application for joinder. Such an application has been made by the Shop, Distributive and Allied Employees Association (SDA), which is a registered federal industrial organisation.

3. Regard to the decision of the Commission discloses that there was an appearance in the proceedings before the Commission by the SDA.  Further, in terms of outcome, the decision of the Commission in respect of the General Retail Industry Award 2010 affects members of the SDA and also those eligible to be members of the SDA. 

4. There is some controversy between the NRA and the SDA as to exactly what was dealt with by the Commission’s decision.  At least on the face of the reasons for the Commission’s decision, the Commission was addressing both an application made by the SDA for a variation of the General Retail Industry Award 2010, as well as conducting a review of that award under item 6, schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth).

5. It is no part of the application for joinder that the Court resolve that controversy.  That is something which will emerge and be dealt with in the proceedings in the Full Court.  It is, though, essential that the Full Court have before it sufficient materials at an evidentiary level to ground the nature of that controversy and the submissions which each party proposes to make on that subject. 

6. For the present it is enough, as ought to be apparent from the brief description of the proceedings before the Commission and the nature of the SDA’s participation and industrial coverage and membership, that the SDA has both a legitimate forensic and, if there be any difference, industrial interest in being joined as a party to the proceedings in this Court.  Further, and quite properly, having regard to R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13, the stance of the Commission in this Court has been to file a submitting appearance. Absent the joinder of the SDA, the Court, and for that matter the NRA, would not have the benefit of a contradictor. The SDA is an appropriate contradictor. The NRA does not oppose the joinder of the SDA as a respondent party.

7. For these reasons the orders will be that:

   1.The Shop, Distributive and Allied Employees Association be joined as second respondent.

   2.The Fair Work Commission become first respondent to the proceedings.

   3.The title of the proceedings be amended accordingly.

   I have chosen to name the Commission as first respondent because, in form, the relief which is sought is relief against the Commission by way of a mandamus and it is the Commission’s decision which is the subject of the application for certiorari.  In earlier times, when it was customary to regard proceedings of this kind as applications for prerogative writs, it was the members of the Commission who were named as respondent parties. 

8. I also grant liberty to apply in respect of the directions in respect of the hearing before the Full Court which were made by the registrar on 30 April 2014 or in respect of any other matters touching upon that hearing.  I also propose to vary the Registrar’s directions by inserting wherever the word “respondent” appears the adjective “second”. 

9. There will be orders accordingly.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated:       3 June 2014