Qantas Airways Limited v Ardlie

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FEDERAL COURT OF AUSTRALIA

Qantas Airways Limited v Ardlie [2018] FCAFC 154

Appeal from: Ardlie & Others v Qantas Airways Limited [2016] SAIRC 35
File number: SAD 350 of 2017
Judges: WHITE, PERRY AND CHARLESWORTH JJ
Date of judgment: 14 September 2018
Catchwords:

INDUSTRIAL LAW – appeal from reasons of an Industrial Magistrate of the Industrial Relations Court of South Australia (IRCSA) and from orders of the South Australian Employment Tribunal (SAET) giving effect to those reasons – whether the SAET had jurisdiction to make orders.

Held: the appeal from the reasons of the IRCSA is not competent – the SAET was vested with jurisdiction to make the orders under s 545(3) of the Fair Work Act 2009 (Cth).

INDUSTRIAL LAW – application of the Australian Services Union (Qantas Airways Limited) Agreement (EA) – whether employees’ positions had been properly classified under the EA – whether the Industrial Magistrate had determined the employees’ classifications in the manner required by the EA.

Held: the Industrial Magistrate failed to observe the requirement of the EA that classifications be determined by “working up the scale” of classifications and this error had affected his determination – accordingly, the orders of the SAET were effected by its reliance on the IRCSA reasons – appeal allowed.  
Legislation:

Fair Work Act 2009 (Cth) ss 12, 50, 185, 545, 546, 551, 565

Federal Court of Australia Act 1976 (Cth) s 28(1)(c)

Judiciary Act 1903 (Cth) ss 78B, 79(1)

Fair Work and Other Legislation Amendment (South Australian Employment Court) Regulations 2017 (Cth) Sch 1 reg 1

Fair Work Regulations 2009 (Cth) r 1.05

Acts Interpretation Act 1915 (SA) s 16

Fair Work Act 1994 (SA)

South Australian Employment Tribunal Act 2014 (SA) ss 32, 92

Statutes Amendment (South Australian Employment Tribunal) Act 2016 s 69

South Australian Employment Tribunal Rules 2017 rr 20, 28
Cases cited:

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; (2015) 230 FCR 298

Kronen v Commercial Motors Industries Pty Ltd (t/as CMI Toyota) [2018] FCAFC 136

Maughan Thiem Auto Sales Pty Ltd v Cooper [2013] FCAFC 145; (2013) 216 FCR 197

Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72

Date of hearing: 30 and 31 May 2018
Registry: South Australia
Division: General Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 88
Counsel for the Appellant: Mr F Parry QC with Mr I Colgrave
Solicitor for the Appellant: Ashurst Australia
Counsel for the Respondents: Dr R Gray with Mr P North
Solicitor for the Respondents: Lieschke & Weatherill Lawyers
Counsel for the Intervener: Dr C Bleby SC with Ms F McDonald
Solicitor for the Intervener: Crown Solicitor’s Office

ORDERS

SAD 350 of 2017
BETWEEN:

QANTAS AIRWAYS LIMITED ACN 009 661 901

Appellant
AND:

REBECCA ARDLIE

First Respondent

APRIL BURDETT

Second Respondent

MARTIN EDKINS (and others named in the Schedule)

Third Respondent

JUDGES:

WHITE, PERRY AND CHARLESWORTH JJ

DATE OF ORDER:

14 SEPTEMBER 2018

THE COURT ORDERS THAT:

1.The…

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Details
Case
[2018] FCAFC 154
Decision Date

CaseChat Overview and Summary

The case of Qantas Airways Limited v Ardlie involved an appeal from the reasons of an Industrial Magistrate of the Industrial Relations Court of South Australia and from orders of the South Australian Employment Tribunal. The dispute concerned the jurisdiction of the South Australian Employment Tribunal to make orders and the proper classification of employees under an enterprise agreement. The employees, represented by the Australian Services Union, sought orders for compensation and other relief under the Fair Work Act 2009 (Cth). Qantas, the employer, contested the classification of the employees and the jurisdiction of the Tribunal. The central legal issues were whether the Tribunal had the jurisdiction to make the orders and whether the Industrial Magistrate had correctly determined the classifications of the employees in accordance with the enterprise agreement.

The Court found that the South Australian Employment Tribunal was vested with the necessary jurisdiction to make the orders under section 545(3) of the Fair Work Act. The Court observed that the Tribunal could accept applications by informal means, such as an email, when it was fair and convenient to do so. The Court also found that the Industrial Magistrate had erred in not determining the classifications of the employees by "working up the scale" as required by the enterprise agreement, which affected the Tribunal's orders. Consequently, the appeal was allowed, and the matters were remitted to the Tribunal for further consideration by a different member.

The Court concluded that the appeal from the reasons of the Industrial Magistrate was not competent as it was the orders of the Tribunal that were the subject of the appeal. The Court set aside the orders of the Tribunal and remitted the respondents' applications for further hearing and determination. The Court did not find it necessary to address the constitutional question concerning the dissolution of the Industrial Relations Court of South Australia and the transfer of proceedings to the Employment Tribunal, as the appeal was allowed on the grounds of the misclassification of the employees.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders of the South Australian Employment Court made on 7 December 2017 be set aside.

3. The Respondents’ applications for orders pursuant to ss 545(3) and 546 of the Fair Work Act 2009 (Cth) be remitted to the South Australian Employment Court for further hearing and determination by a member other than Deputy President Lieschke.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

The FW Act does not contain any provision concerning specifically the manner in which an application may be made for the purposes of s 545(3). However, s 551 provides:551Civil evidence and procedure rules for proceedings relating to civil remedy provisionsA court must apply the rules of evidence and procedure for civil matters when hearing proceedings relating to a contravention, or proposed contravention, of a civil remedy provision. The effect of s 551, in conjunction with s 79(1) of the Judiciary Act, is that the laws of the State or Territory court relating to procedure are picked up and applied as surrogate federal law in the court’s exercise of jurisdiction under s 545: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25, (2015) 230 FCR 298 at [55]; Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72 at [105]‑[107]. The SAET Act does not contain any relevant provision concerning the manner in which applications are to be made to the SAET. However, rules (the South Australian Employment Tribunal Rules 2017) have been made in the exercise of the power conferred by s 92 of the SAET Act. Rule 20(1) requires all initiating applications to be in the approved form. Rule 20(2) also requires all other applications in relation to proceedings to be in the approved form. However, r 28 provides that applications may be made by informal means:28. Oral applicationsNotwithstanding anything in the Rules, but subject to any express provision of the SAET Act or a relevant Act, an application for any direction or interlocutory or final order of the Tribunal, and any response, may be made orally or in such other manner as the Tribunal may, in the particular circumstances, determine to be fair and convenient. The Tribunal may make a determination under this rule subject to conditions, including requiring notice to be given to any other party.(Emphasis added) In our opinion, it was open to the SAET to regard the email of 5 December 2017 from the solicitors for Qantas as an application to the SAET by the informal means for which r 28 provides. The parties indicated that it would be proper for the SAET to act on the basis of the 2016 reasons for this purpose. It can be inferred from the Deputy President’s conduct in proceeding to make the requested orders, that he determined it to be “fair and convenient” to allow an application for final orders to be made to the SAET by the method of an email request. That inference can be drawn even if the Deputy President incorrectly assumed that the proceedings commenced by summons in the IRCSA had been transferred to the SAET. Accordingly, the SAET was properly seized of the employees’ proceedings. We add that, as the employees’ proceedings cannot be bifurcated, the SAET was seized with all aspects of their claims. It can also be inferred that the Deputy President made the 2017 orders in reliance on the parties’ consent and in reliance on his findings in the 2016 reasons, in particular, the finding at [87] that Qantas had contravened s 50 of the FW Act. That is to say, the Deputy President was satisfied that the conditions enlivening the SAET’s power to make orders contained in s 545(3) of the FW Act were satisfied. Qantas did not contend that it had not been open to the Deputy President in the SAET to be satisfied of the preconditions for the making of orders under s 545(3) of the FW Act by reference to the findings in the 2016 reasons and the evidence adduced in the proceedings in the IRCSA. It sought only to challenge the findings of the IRCSA founded upon that evidence and, in so doing, to challenge the 2017 orders.

Decision

Reasons for decision

Qantas filed a notice of appeal in this Court on 21 December 2017 and an Amended Notice of Appeal on 11 May 2018. The Amended Notice of Appeal commences:The Appellant appeals from the whole of the judgment of the Industrial Relations Court (SA) given on 16 December 2016 at Adelaide [2016] SAIRC 35 (regarding file nos. 1480, 1481, 1482, 1483 and 1484 of 2013) (Judgment) and the Orders of Deputy President Lieschke (formerly Industrial Magistrate SM Lieschke but hereinafter referred to as the Deputy President) of the South Australian Employment Court dated 7 December 2017 (Orders). On 11 May 2018, Qantas gave notices pursuant to s 78B of the Judiciary Act 1903 (Cth) to the Attorneys‑General of the Commonwealth and of the States. The matter notified concerned the constitutional validity of the dissolution by the South Australian Parliament of the IRCSA and of the provision concerning the transfer of uncompleted proceedings before the IRCSA to the SAET. Only the Attorney‑General for the State of South Australia intervened in the hearing. At the request of the parties, the Court deferred consideration of the constitutional question, on the basis that it would reconvene the hearing for the consideration of that question should it became necessary to do so. For the reasons we set out below, we consider that the 2016 reasons are affected by appealable error. In particular, we are satisfied that the Industrial Magistrate did not determine the classifications of the employees in the manner required by the EA. This error affects the 2017 orders. Accordingly, the appeal is allowed and the matters will be remitted to the SAET for further consideration. We are also satisfied that the constitutional question which is the subject of the s 78B notice does not arise for consideration.Competency It is convenient to address at the outset an issue as to the competency of the appeal. Section 545 of the FW Act confers jurisdiction with respect to certain matters arising under that Act on specified courts. Subsections 545(3) and (4) provides:Eligible State or Territory courts(3)An eligible State or Territory court may order an employer to pay an amount to, or on behalf of, an employee of the employer if the court is satisfied that:(a)the employer was required to pay the amount under this Act or a fair work instrument; and(b)the employer has contravened a civil remedy provision by failing to pay the amount.…When orders may be made(4) A court may make an order under this section:(a) on its own initiative, during proceedings before the court; or(b) on application. The phrase “eligible State or Territory court” is defined in s 12 of the FW Act to include (relevantly) the IRCSA and “any other State or Territory court that is prescribed by the regulations”. By regulation effective from 1 July 2017, the SAET has been prescribed as an “eligible State court”: Fair Work Regulations 2009 (Cth) r 1.05; Fair Work and Other Legislation Amendment (South Australian Employment Court) Regulations 2017 (Cth) Sch 1 reg 1.

Ratio Decidendi

Legal Principle Established

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