Re Australian Industrial Relations Commission

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FEDERAL COURT OF AUSTRALIA

Re Australian Industrial Relations Commission; Ex parte Smith
[2004] FCAFC 271

INDUSTRIAL LAW – termination of employment – retrenchment of employees at mine – order by Australian Industrial Commission that termination of employees in breach of Workplace Relations Act 1996 (Cth) – finding that terminations were “harsh, unjust and unreasonable” – order by Commission that employees be reinstated – appeal to Full Bench –Full Bench affirmed finding regarding terminations but set aside reinstatement order – whether Full Bench erred in law – whether Full Bench exceeded jurisdiction by quashing order without first finding appealable error – whether Full Bench erred by affirming finding regarding terminations – subsequent application by Union for exceptional matters order –whether later Full Bench erred by making order

Workplace Relations Act 1996 (Cth) ss 45, 45(1)(b), 45(6), 45(7), 89A(7), 150, 170CA, 170CE(1), 170 CF(2), 170CG, 170CG(3), 170CG(3)(a), 170CG(3)(e), 170CH, 170CH(1),

170CH(2), 170CH(3), 170CH(4), 170CH(6), 170HI, 170JF(2), 415

High Court Rules O 55 r 30, O 55 r 17

Construction, Forestry, Mining And Energy Union v Australian Industrial Relations Commission (1999) 93 FCR 317 at 339-347 discussed
Construction, Forestry, Mining And Energy Union v Comalco Aluminium Ltd (1998) 90 FCR 81 referred to
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 applied
Sammartino v Foggo (1999) 93 IR 52 referred to
Miller v Australian Industrial Relations Commission (2001) 108 FCR 192 referred to
Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 referred to
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 612‑617, 633‑634, 643 referred to
Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24 referred to
Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (1998) 89 FCR 200 at 226-227, 230 discussed
House v The King (1936) 55 CLR 499 referred to
Norbis v Norbis (1985-1986) 161 CLR 513 at 518-519 considered
Edwards v Giudice (1999) 94 FCR 561 at 565, 585 referred to
CDJ v VAJ (1998) 197 CLR 172 at 191, 201-202 referred to
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 referred to
Allesch v Maunz (2000) 203 CLR 172 at 179-182 referred to
Cubillo v Commonwealth (2001) 112 FCR 455 at 522 referred to
The Queen v Alley; Ex parte NSW Plumbers & Gasfitters Employees’ Union (1981) 153 CLR 376 at 380 referred to
Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 referred to
Malone v Marr [1981] 2 NSWLR 894 referred to
Re Heaney; ex parte Tunza Holdings Pty Ltd [1998] WASCA 341 referred to
R v Marshall; ex parte Baranor Nominees Pty Ltd [1984] VR 211 referred to
Bread Manufacturers of New South Wales v Evans (1981) 180 CLR 404 referred to
Re Media, Entertainment and Arts Alliance; Ex parte Arnel (1994) 179 CLR 84 discussed
Quality Bakers of Australia Ltd v Goulding (1995) 60 IR 327 at 334 referred to
Minister for Immigration & Ethnic Affairs v…

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Details
Case
[2004] FCAFC 271
Decision Date

CaseChat Overview and Summary

The case involved a dispute between retrenched employees, represented by a union, and employers Pacific Coal Pty Ltd and Hail Creek Coal Pty Ltd, regarding the reinstatement of the employees following a decision by Commissioner Hodder under the Workplace Relations Act 1996 (Cth). The Full Bench of the Australian Industrial Relations Commission had previously set aside the Commissioner's orders, leading to the current appeal by the retrenched employees. The central legal issues were whether the Full Bench had correctly applied the law in setting aside the Commissioner's orders, and whether there was an "appealable error" in the Commissioner's exercise of his discretion. The court had to determine if the Full Bench had exceeded its jurisdiction in varying the remedy ordered by the Commissioner and if the Full Bench's decision should be quashed and remitted for reconsideration.

The court found that the Full Bench had indeed exceeded its jurisdiction by varying the remedy ordered by the Commissioner without identifying an appealable error. The court emphasised that the Full Bench should have addressed whether there was an appealable error in the Commissioner's exercise of discretion before varying the remedy. The court also noted that no error had been demonstrated in the Commissioner's decision, except for the Full Bench's failure to consider appealable error. Therefore, the court decided to quash the Full Bench's decision and direct it to reconsider the appeal according to law. The application by the employers for leave to seek constitutional writs was granted, but the application for the writs themselves was dismissed.

The court issued a writ of certiorari to quash the Full Bench's decision that set aside the Commissioner's orders and a writ of mandamus to direct the Full Bench to hear and determine the appeal according to law. It also granted leave to the employers to seek constitutional writs, although it dismissed their application for such writs. The court deferred finalising and publishing its reasons for judgment in another related application until the Full Bench had reconsidered the appeal from the Commissioner's orders.

Orders

Orders of the court

1. A writ of certiorari issue to the Australian Industrial Relations Commission quashing the decision of the Full Bench made on 12 December 2002 to the extent that that decision set aside the orders made by Commissioner Hodder on 9 April 2001 [PR902679] and 27 September 2001 [PR903256].

2. A writ of mandamus issue to the Australian Industrial Relations Commission, directing it to hear and determine the appeal from the said orders made by Commissioner Hodder according to law.

3. Leave be granted to Pacific Coal Pty Ltd and Hail Creek Coal Pty Ltd to seek the issue of constitutional writs in respect of the said decision of the Full Bench.

4. The application by Pacific Coal Pty Ltd and Hail Creek Pty Ltd for constitutional writs be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The majority did not err in its application of s 170CG(3) in so deciding.CONCLUSION It follows from the foregoing that an order should be made on the application of the retrenched employees that a writ of certiorari issue to call in and quash the decision of the Full Bench made on 12 December 2002 and that a writ of mandamus issue directing the Full Bench to complete the “appeal” according to law. That is to say, the Full Bench must address the issue whether there was any “appealable error”, in the terms discussed above, in the exercise by Commissioner Hodder of the discretionary powers available to him under s 170CH of the Act by which he ordered that the retrenched employees be “reinstated” in their employment by Pacific Coal. In formal terms, certiorari should go to quash “the order” of the Full Bench by which the orders [PR902679] and [PR903256] issued by Commissioner Hodder on 9 April and 27 September 2001 respectively are quashed as having been made without jurisdiction. The Full Bench exceeded its jurisdiction only in purporting to exercise power under s 45(7) to vary the remedy ordered by Commissioner Hodder. Accordingly, it is that aspect of the matter that should be remitted to the Full Bench for determination according to law. No error on the part of Commissioner Hodder, and no error on the part of the majority (apart from its failure to consider whether appealable error was established) having been demonstrated, there is no justification for remitting the balance of the Full Bench’s determination for further consideration. With regard to the application for leave by Pacific Coal and Hail Creek Coal to seek the issue of constitutional writs in respect of the decision of the Full Bench, the formal order of the Court will be that the application for leave is granted but the application for constitutional writs be dismissed. During the course of argument, the Court raised with the parties the question whether, assuming constitutional writs issued in relation to application “S56/03” or application “S509/03”, this would have a bearing upon the proceeding in application “S508/03”. On one view, the decision by the Full Bench to make an exceptional matters order on 25 July 2003 was based substantially upon the earlier findings of a differently constituted Full Bench whose decision is now to be reconsidered. It may be that in those circumstances there will be no need to resolve the very many and highly complex issues raised by the challenge to the decision of the later Full Bench. In “S508/03”, Hail Creek contends that it would be an error to permit the findings of the later Full Bench to adopt or use the findings of Commissioner Hodder, or the majority of the first Full Bench. The Union on the other hand contends that there is nothing impermissible in doing so. There are serious questions regarding the validity of the exceptional matters order made by the second Full Bench, and the Court has heard extensive argument on this issue. On the other hand, it may be that, depending upon the outcome of the remitter to the first Full Bench, it will no longer be necessary for the Court to deal with those matters. The Court proposes to defer the finalisation and publication of its reasons for judgment in “S508/03” until the Full Bench has determined the appeal from Commissioner Hodder according to law.

Ratio Decidendi

Legal Principle Established

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