Reddam House Limited and Crawford Education Pty Limited t/a Reddam Els v Independent Education Union of Australia
[2016] FWCFB 12
•4 JANUARY 2016
| [2016] FWCFB 12 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Independent Education Union of Australia
(C2015/8045)
VICE PRESIDENT HATCHER |
|
Appeal against orders for production of documents of Commissioner McKenna at Sydney on 4 and 8 December 2015 in matter number C2015/7387.
[1] This decision reproduces in edited form the decision and reasons which were stated on transcript at the conclusion of the hearing conducted in relation to this matter on 15 December 2015.
[2] This is an appeal for which permission to appeal is required against orders made by Commissioner McKenna on 8 December 2015 for the production of documents. Those orders were directed to the appellants, respectively Reddam House Limited and Crawford Education Pty Limited.
[3] The appellants contend that permission to appeal should be granted, the appeal upheld and the orders under appeal quashed for two reasons: one, the Commissioner had no jurisdiction to make the orders because the proceedings in which they were made were improperly commenced and were a nullity and, two, none of the documents sought in the orders had apparent relevance to the issues in the proceedings.
[4] The application which gave rise to the proceedings before the Commissioner was one made pursuant to section 739 of the Fair Work Act 2009 (FW Act). The person identified as the applicant is the Independent Education Union (IEU). The application identifies a range of matters in dispute between employees, including members of the IEU, and the employer. One of the features of the application is that the identification of the employer is said to be in doubt and was an issue in dispute. Two potential employers were identified: Reddam House Pty Limited (which was later amended to Reddam House Limited) and Crawford Education Pty Limited, that is the appellants.
[5] The application also identifies three modern awards and two enterprise agreements as potentially applicable. It is common ground that it is necessary to identify the correct employer in order to be able to identify the applicable industrial instrument, noting that the appellants also contend that it is necessary to identify the relevant employees.
[6] After the matter came before the Commissioner the two appellant entities advanced four jurisdictional objections. They were as follows:
“(a) The proceedings are improperly commenced and constituted and are therefore a nullity, because the Applicant (the Union) is not competent to be a party to a dispute that isreferred to the Commission under any of the dispute resolution provisions that might be binding on the Respondents;
(b) Even if the proceedings were properly constituted, the conditions precedent to a dispute being dealt with by the Commission under any of the dispute resolution provisions that might be binding on the Respondents have not been satisfied, in that there have not been discussions at the workplace level within the meaning of any of those provisions;
(c) Even if such communications which have taken place can be regarded as 'discussions' for that purpose, many of the matters which are the subject of the Union's application did not form part of those communications, and are therefore outside the scope of any dispute that could be referred to the Commission; and
(d) Many of the matters raised in the Union's application are not matters which arise under the National Employment Standards (the NES) or any award or enterprise agreement which could be said to apply to the Respondents.”
[7] The appellants concede that the identification of the correct industrial instrument is necessary to determine the jurisdictional objections in (b), (c) and (d).
[8] After these jurisdictional objections were made the Commissioner determined to set them down for hearing on 14 December 2015. After she had done so, the Commissioner made orders for the production of documents which have the apparent purpose of aiding the identification of the correct employer. After debate about the scope of the orders the final version of the orders which are under appeal were made by the Commissioner on 8 December 2015 as earlier stated.
[9] The appellants say in the appeal that because the dispute was not notified by a party to the dispute, namely named employees, but rather by the IEU, the application was incompetent because it offended section 739(6) of the FW Act and was therefore a nullity. It is on that basis they advanced their first ground of appeal, namely that there was no power for the Commissioner to make the orders.
[10] We reject that submission. In Re Adams and Tax Agents' Board 1 Brennan J, as he then was, classically stated as follows:
“An administrative body with limited authority is bound, of course, to observe those limits. Although it cannot judicially pronounce upon the limits, its duty not to exceed the authority conferred by law upon it implies a competence to consider the legal limits of that authority, in order that it may appropriately mould its conduct. In discharging its duty, the administrative body will, as part of its function, form an opinion as to the limits of its own authority.”
[11] The appellants having raised their objections to the competency of the dispute application, the Commissioner had authority to hear and determine those objections in order to ensure that the Commission's jurisdiction was not exceeded. In the exercise of that authority, the use of the Commission’s procedural powers, including the power to order production of documents under section 590(2)(c), remained available. Those powers were able to be utilised as an incident of the exercise of the authority to determine the limits of the Commission's jurisdiction.
[12] The appellants' proposition that the Commissioner had no power to make the orders because the proceedings before her were beyond jurisdiction seeks to invert the proper order of things. Whether the proceedings were beyond jurisdiction was the question which the Commissioner had set down to be heard on 14 December 2015.
[13] The orders were made in order to provide evidentiary assistance in the determination of the jurisdictional questions in that the documents were relevant to the identification of the correct employer and thereby the correct industrial instrument.
[14] To challenge the jurisdiction of the Commissioner to issue the orders on the basis that the appellants have identified is pre-emptive of the decision which the Commissioner was called on to make in response to the jurisdictional objections. It has the effect of transferring that decision-making function to the Full Bench. We do not consider it appropriate to allow an appeal from an interlocutory procedural decision to be used as a vehicle to resolve the jurisdictional question which was properly before the Commissioner. The position here is analogous to that described in the Full Bench decision in Clermont Coal Operations Pty Ltd v Brown and others 2where the Full Bench at paragraph [20] referred to:
“[20]… the undesirable effect of making an interlocutory hearing concerning production of documents a forum for the resolution of the major issues in contest in the proceedings …”
[15] The second ground of appeal, namely that the apparent relevance of the documents to be produced could not be established without the identification of named employees, is also rejected. We have already identified the apparent relevance of the documents to be produced for the jurisdictional objections to be determined. We do not consider it to have been necessary in that context to identify the employees by name when they were able to be identified as a class.
[16] As earlier stated this is an appeal from an interlocutory procedural decision. Such appeals are usually discouraged. We do not consider, for the reasons we have stated, that the appellants have demonstrated a proper basis either in the public interest or otherwise for permission to appeal to be granted. Accordingly we refuse permission to appeal.
VICE PRESIDENT
Appearances:
P. Moorhouse and C. Parkin of counsel with A. Crockett solicitor for the Appellants.
M. Gibian of counsel for the Respondent.
Hearing details:
2015.
Sydney:
15 December.
1 (1976) 12 ALR 239 at 242
2 [2015] FWCFB 2460
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