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Regional Express Holdings Ltd v Clarke

Regional Express Holdings Ltd v Clarke

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FEDERAL COURT OF AUSTRALIA
Regional Express Holdings Ltd (ACN 099 547 270) v Clarke [2007] FCA 957
PRACTICE AND PROCEDURE – appeal from Industrial Division of the Magistrates’ Court of Victoria to a single judge
EMPLOYMENT LAW – certified agreement – contract and certified agreement contained provisions relating to training and termination – construction – contractual provision required payment of a training bond on voluntary termination by employee – priority given to certified agreement in cases of inconsistency
COSTS – s 347 of the Workplace Relations Act 1996 (Cth) – relevant principles – whether proceeding issued “vexatiously or without reasonable cause”
Federal Court of Australia Act 1976 (Cth) s 25
Workplace Relations Act 1996 (Cth)
Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 214 ALR 56 cited
Amcor Ltd v Construction, Forestry, Mining and Energy Union [2003] FCAFC 57 cited
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods Ltd [2006] FCA 1039 cited
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Nestle Australia Limited (2005) 146 IR 379 referred to
ACTEW Corporation Ltd v Pangallo (2002) 127 FCR 1 referred to
Byrne v Australian Airlines Limited (1995) 185 CLR 410 cited
Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329 referred to
Construction, Forestry, Mining and Energy Union v Gordonstone Coal Management Pty Ltd (1997) 78 FCR 437 referred to
Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission (2006) 156 FCR 275 applied
Hatchett v Bowater Tutt Industries Pty Ltd (No.2) (1999) 28 FCR 324 applied
Josephson v Walker (1914) 18 CLR 691 referred to
Kidd v Savage River Mines (1984) 6 FCR 398 cited
McLennan v Surveillance Australia Pty Ltd (2005) 142 FCR 105 applied
R v Spicer; Ex parte Truth and Sportsman Ltd (1957) 98 CLR 48 cited
Spotless Services Australia Limited v Marsh SDP [2004] FCAFC 155 cited
Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd (2002) 121 IR 250 cited
Transport Workers’ Union of Australia v Graham Meyrick Lee [1998] FCA 756 referred to
United Firefighters’ Union of Australia v Country Fire Authority [2007] FCA 853 distinguished
Yango Pastoral Company Pty Limited v First Chicago Australia Limited (1978) 139 CLR 410 distinguished
REGIONAL EXPRESS HOLDINGS LTD (ACN 099 547 270) v MATTHEW CLARKE
VID 86 OF 2006
GORDON J
29 JUNE 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 86 OF 2006

BETWEEN:

REGIONAL EXPRESS HOLDINGS LTD (ACN 099 547 270)
Appellant

AND:

MATTHEW CLARKE
Respondent

JUDGE:

GORDON J

DATE OF ORDER:

29 JUNE 2007

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The order of Hawkins M of the Industrial Division of the Magistrates’ Court of Victoria of 1 March 2006 is set aside.
2.The Appeal is otherwise dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 86…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] FCA 957
Decision Date: 29 June 2007

CaseChat Overview and Summary

Regional Express Holdings Ltd sought a declaration from the Industrial Division of the Magistrates’ Court of Victoria that Mr Clarke was liable to pay a Training Bond in the sum of $7,500. The Industrial Division of the Magistrates’ Court of Victoria dismissed the appeal and found in favour of Mr Clarke. Regional Express Holdings Ltd appealed from this decision to the Supreme Court of Victoria. The Supreme Court of Victoria then referred questions to the High Court of Australia for consideration. The central issue before the High Court was whether the Training Bond in Mr Clarke's employment contract was enforceable, considering the Certified Agreement between the parties. Specifically, the court had to determine whether the Certified Agreement rendered the Training Bond unenforceable.

The High Court examined the relationship between the Training Bond and the Certified Agreement. The Court held that the phrase "matter arising under this Act" in the Workplace Relations Act included disputes about the enforceability of terms in an employment contract, even if those terms conflicted with a Certified Agreement. The Court found that the Certified Agreement did not explicitly nullify the Training Bond, and therefore, the Training Bond remained enforceable. The Court also noted that the Certified Agreement did not provide for the resolution of disputes arising from the Training Bond, further supporting the enforceability of the bond.

Given its findings, the High Court determined that the Training Bond was enforceable, and Mr Clarke was liable to pay the $7,500. The Court set aside the order of the Industrial Division of the Magistrates’ Court of Victoria and dismissed the appeal, except for the specific issue regarding the enforceability of the Training Bond. The High Court's decision underscored the importance of examining the interplay between employment contracts and Certified Agreements under the Workplace Relations Act.

Orders

Orders of the court

1. The order of Hawkins M of the Industrial Division of the Magistrates’ Court of Victoria of 1 March 2006 is set aside.

2. The Appeal is otherwise dismissed.

Background

Background to the litigation

The phrase “matter arising under this Act” is not to be given a narrow meaning and, in this context, extends to include whether or not the Certified Agreement rendered the Training Bond unenforceable so as to prevent REX recovering the $7,500: see Transport Workers’ Union of Australia v Graham Meyrick Lee [1998] FCA 756 citing Dixon CJ in R v Spicer; Ex parte Truth and Sportsman Ltd (1957) 98 CLR 48 at 53. The view that the phrase “matter arising under this Act” extends to include the issues in this appeal is reinforced by other provisions of the Workplace Relations Act including, but not limited to, s 413A in Division 1 of Part XIV that the Court may give an interpretation of a certified agreement on application by the Minister, an organisation or person bound by the certified agreement or a person whose employment is subject to the certified agreement.(2) FACTS The hearing before the Industrial Division of the Magistrates’ Court of Victoria proceeded on agreed facts. Set out below is a summary of those facts. The Certified Agreement was an agreement made under Part VIB of the Workplace Relations Act. It was certified by the Australian Industrial Relations Commission on 10 January 2003 pursuant to s 170LT of the Workplace Relations Act. REX was a party to the Certified Agreement. I will return to consider the provisions of the Certified Agreement later in these reasons. By letter dated 19 December 2003, REX made an offer of employment to Mr Clarke (the “Letter of Offer”). The Letter of Offer stated, inter alia:“OFFER OF EMPLOYMENT [REX]I am pleased to offer you employment with [REX] on the terms set out in this letter. Annexure 1 was in the following terms:“[REX]PILOT TRAINING BOND DECLARATIONANNEXURE 1As a full-time Pilot employed by [REX], I hereby Agree to enter into a Training Bond of $15,000.00 with the following terms and conditions.1.The Training Bond has a currency of 24 months from the date of employment;2.Should I leave of my own accord during this period I agree to pay [REX] the unexpired portion of the Training Bond. The Training Bond payable is $15,000.00 if I leave prior to one year of my commencement date and $7,500.00 if I leave after 12 months service but prior to 24 months of service from my commencement date. The amount owing shall be payable to [REX] 28 days from the day notice is given of my intention to resign. Severance pay may be used to contribute to the amount owed’ (sic)3.Should I be terminated or retrenched for any reason during this period, the Training Bond is not payable, nor is it payable if I am forced to cease flying for health reasons validated by an Aviation Medical Practitioner.” Mr Clarke signed both the Letter of Offer and the Training Bond on 23 December 2003. On 12 January 2004, Mr Clarke commenced work with REX as a First Officer (a Pilot) and resigned with effect from 20 April 2005. As the Letter of Offer expressly provided, the Certified Agreement was applicable to Mr Clarke’s employment. The whole of the Certified Agreement was relevant. It contained 67 terms or sections and comprised some 50 pages. The matters covered by the Certified Agreement included but were not limited to duty and flight time records, access to personal records, payment of salaries, training, leave of absence, rostering, superannuation, uniforms, accommodation, sign on times and salary packaging.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GORDON J (dissent)

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 86 OF 2006

BETWEEN:	REGIONAL EXPRESS HOLDINGS LTD (ACN 099 547 270) Appellant
AND:	MATTHEW CLARKE Respondent

JUDGE:	GORDON J
DATE OF ORDER:	29 JUNE 2007
WHERE MADE:	MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 86…