Robinson v Pilbara Iron Company (Services) Pty Ltd
[2022] FedCFamC2G 647
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Robinson v Pilbara Iron Company (Services) Pty Ltd [2022] FedCFamC2G 647
File number(s): PEG 8 of 2021 Judgment of: JUDGE LUCEV Date of judgment: 12 August 2022 Catchwords: PRACTICE AND PROCEDURE – Application for separate hearing of separate question – consideration of whether conditions for separate hearing of separate question met
INDUSTRIAL LAW – Fair Treatment System – whether a safety net contractual entitlement
Legislation: Fair Work Act 2009 (Cth) ss 12, 139, 542, 543, 570
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Pt 18, r 18.02
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Federal Circuit Court of Australia Rules 2001 (Cth) Pt 17
Federal Court Rules 2011 (Cth) r 30.01
Cases cited: Construction, Forestry, Maritime, Mining and Energy Union & Anor v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 96 ALJR 89; (2022) 312 IR 1
Devonshire v Magellan Powertronics Pty Ltd [2013] FMCA 207; (2015) 231 IR 198; (2013) 275 FLR 273; (2015) 65 AILR 101-892
Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCA 439
Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177; (2014) 231 FCR 403; (2014) 247 IR 315; (2014) 315 ALR 243; (2014) 143 ALD 239; (2014) 67 AILR 102-324
State of Western Australia v Galati [2017] FCA 236
Thomson v Kimberly College Limited & Ors [2020] FCCA 3361
Westpac Banking Corporation v Wittenberg and Others [2016] FCAFC 33; (2016) 242 FCR 505; (2016) 256 IR 181; (2016) 330 ALR 476
White v Westfield Vet Hospital & Ors [2018] FCCA 3833
WorkPac Pty Ltd v Rossato [2020] FCAFC 84; (2020) 278 FCR 179; (2020) 296 IR 38; (2020) 378 ALR 585
Division: Division 2 General Federal Law Number of paragraphs: 25 Date of last submission/s: 22 October 2021 (determined on the papers) Place: Perth Solicitor for the Applicant: Dasey Legal Pty Ltd Solicitor for the Respondent: Mills Oakley ORDERS
PEG 8 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DAVID ROBINSON
Applicant
AND: PILBARA IRON COMPANY (SERVICES) PTY LTD
Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
12 AUGUST 2022
THE COURT ORDERS THAT:
1.Pursuant to r 18.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the Court orders that the following question be separately determined in these proceedings:
Is the Respondent’s “Fair Treatment System” policy a “safety net contractual entitlement” for the purposes of s 542(1) of the Fair Work Act 2009 (Cth)?
2.Costs, if any, of the Respondent’s application in a case filed 20 July 2021 be reserved.
3.The matter be adjourned to a directions hearing at 9.00am on 9 September 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
The Application in a Case before the Court was filed by the respondent, Pilbara Iron Company (Services) Pty Ltd (“PIC”), and seeks a separate preliminary hearing on a separate question in these proceedings. The separate question (“Proposed Question”) sought to be determined is as follows:
Is the Respondent’s “Fair Treatment System” policy:
(a) incorporated as a term of the Applicant’s contract of employment; and
(b)a “safety net contractual entitlement” for the purposes of the Fair Work Act 2009 (Cth) section 542(1)?
BACKGROUND
Substantive Application
The substantive application is brought under s 543 of the Fair Work Act 2009 (Cth) (“FW Act”), which permits a national system employee to apply to the Federal Circuit and Family Court of Australia to enforce an entitlement of the employee arising under s 542(1) of the FW Act. Mr Robinson alleges that PIC’s Fair Treatment System was a safety net contractual entitlement, that he was not given fair treatment or the benefit of the Fair Treatment System, and that PIC’s failure to comply with Mr Robinson’s safety net contractual entitlement was a contravention of the FW Act. Mr Robinson seeks certain declarations in terms similar to the above allegations and an order reinstating Mr Robinson to his position of Production Superintendent or alternatively awarding him compensation for loss (the relief sought is set out fully at [11] below).
For present purposes the relevant background is uncontroversial and is as follows:
(a)by letter dated 1 April 2011 (“Contract Letter”), PIC offered Mr Robinson the “role” of Production Superintendent based in or at the Brockman 2 mine site;
(b)the Contract Letter stated that:
(i)Mr Robinson would report to the Mine Operations Manager;
(ii)Mr Robinson’s total fixed remuneration would be $201,415.65 including base salary, appropriate allowances and superannuation and that his total remuneration, including bonuses was “targeted at” $216,430.95;
(iii)full details of Mr Robinson’s remuneration were detailed in the Summary of Remuneration and Benefits;
(iv)the terms and conditions of Mr Robinson’s employment are recorded in the attached Schedule of Remuneration, Benefits and Employment Conditions;
(v)Mr Robinson would be working nine days on and five days off; and
(vi)Mr Robinson would commence as Production Superintendent on 1 April 2011;
(c)included with the Contract Letter was a document with the title Schedule of Remuneration, Benefits and Employment Conditions (“Contract Schedule”);
(d)the Contract Schedule provided:
(i)that Mr Robinson’s employment status was “Full Time”;
(ii)That the Contract Schedule should be read in conjunction with the Contract Letter;
(iii)under a heading called “Policies, procedures and standards”, that PIC operated a “Fair Treatment System” which Mr Robinson could access, if he believed a decision had been made which unfairly affected him and that could not be resolved through consultation with his leader;
(iv)the following termination provisions:
(A)“… Except in cases of serious misconduct, the Company may terminate your employment by giving you one months’ notice in writing. If you are over 45 years of age and have more than 2 years continuous service, the Company will provide you with 5 weeks notice”; and
(B)“The Company may elect to pay you in lieu of notice at your Total Remuneration rate and in the circumstances you will not be required to work out your notice period.”; and
(v)Mr Robinson was entitled to superannuation.
SUBMISSIONS
PIC’s Submissions
PIC made the following submissions concerning the application for a separate hearing of the Proposed Question:
(a)that the determination of the Proposed Question is entirely consistent with the overarching purpose of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) and Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“GFL Rules”) because it will allow the dispute to be resolved:
(i)according to law and quickly, inexpensively and efficiently;
(ii)avoid undue delay, expense and technicality;
(iii)allow the efficient use of the judicial and administrative resources available for the purposes of the Court;
(iv)allow efficient disposal of the Court's overall caseload;
(v)allow the disposal of all proceedings in a timely manner; and
(vi)allow the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute;
(b)the essence of these objectives is focused on efficiency, timeliness and economy;
(c)a determination of the Proposed Question promotes all of these objectives because it focuses the Court's attention on the basis of the claim, being the purported contractual effect of the “Fair Treatment System” policy (“FTS Policy”);
(d)the determination of the Proposed Question may lead to the dismissal of the proceedings, or, at least, a significant narrowing of the issues to be determined at hearing because:
(i)if the FTS Policy is found not to be a contractual benefit, the claim may fall away on the basis that a policy without contractual effect cannot be, for the purposes of s 12 of the FW Act, a “safety net contractual entitlement”; and
(ii)even if the FTS Policy is found to be a contractual benefit, the consequential question of whether any such contractual benefit is a “safety net contractual entitlement” for the purposes of s 12 of the FW Act may be determined against [Mr Robinson] and therefore the claim may fall away on this separate basis;
(e)a separate hearing would contribute to the saving of time and cost as it may lead to the disposal of the action, or at least a significant narrowing of the matters in dispute, for the reasons set out above;
(f)the determination that the Court is being requested to make as a separate preliminary matter is not expansive and does not require any extensive consideration of factual matters, the focus of the Proposed Question being a question of law, and, further, the factual matters are of little relevance (and are not subject to contest) given that:
(i)PIC accepts that Affidavit of Mr John Dasey dated 24 September 2021 (“Mr Dasey’s Affidavit”) annexes the Contract Letter, Contract Schedule, FTS Policy, and Mr Robinson’s Letter of Termination, and there is no factual dispute on these matters;
(ii)no affidavit evidence has been filed by Mr Robinson or PIC on any factual matters which extend beyond the documents annexed to Mr Dasey’s Affidavit; and
(iii)there are no issues of overlapping factual evidence (between a separate hearing and a hearing on the substantive matters) or questions of credibility because the essence of the issue is purely the legal interpretation of the Contract Letter, Contract Schedule and the FTS Policy. In this sense, the issue is “ripe” for determination, and rather than prolong the proceedings, separate hearing of the Proposed Question has the potential to shorten them;
(g)determining the Proposed Question will involve a short time for the application to be dealt with by the Court, relative to the total length of time of the substantive hearing. This is due to the determination of the Proposed Question being confined to considering whether PIC’s policies and procedures are contractual benefits, and if so, whether they are “safety net contractual entitlements” for the purposes of the FW Act;
(h)accordingly, a separate hearing of the Proposed Question will facilitate the efficient, timely and economical resolution of proceedings (consistent with the objects of the FCFCOA Act and GFL Rules) because, if the questions are resolved favourably for PIC, the substantive claim would not proceed;
(i)it should be noted that the substantive claim is relatively complex in evidentiary terms and would consume a considerable amount of the Court's time to hear, given that the claim centres on whether and how the FTS Policy was applied in all the factual circumstances; and
(j)the matters admitted in the Defence do not render these factual matters simple or limited because PIC has denied the key bases upon which the claim is brought:
(i)PIC denies the matters alleged at [75] of the claim: “The Respondent’s failure to comply with the Applicant's safety net contractual entitlement was a contravention of the Fair Work Act”; and
(ii)PIC also almost wholly denies [76] of the claim: "The Applicant was not given fair treatment or the benefit of the Fair Treatment System for the following reasons" and its thirteen subsequent contentions, and
(A)in particular, the Respondent denies the contention at [76][(c)] of the claim (“There were no grounds or reasons to justify the summary termination of the Applicant”) and [76][(d)] (“there were no grounds to justify the termination of the Applicant at all”). These denials reflect factual disputes which will inevitably raise complex and contested evidence as to all the reasons for the termination, including the alleged workplace incident and Mr Robinson’s responses, and the entirety of the review process in relation to the decision to terminate which resulted in the validation of the reasons for termination; and
(B)PIC further denies the contention at [76][(i)] of the claim that it misapplied the FTS Policy, which inevitably raises the complex factual matters of the entirety of the process that was, in fact, applied to Mr Robinson and its relationship to the FTS Policy requirements.
Mr Robinson’s Submissions
Mr Robinson made the following submissions concerning the application for a hearing of separate issues:
(a)as to the effect of the pleadings:
(i)PIC admits that it invited Mr Robinson to use the Fair Treatment System: Statement of Claim (“SOC”) at [34], admitted in Defence at [25];
(ii)the Fair Treatment System is referred to in the Contract Letter: Mr Dasey’s Affidavit, Annexure JD2, page 11, and is referred to separately and distinctly from “Policies and Procedures”;
(iii)PIC admits that Mr Robinson submitted a Fair Treatment claim: SOC at [47], admitted, in effect, in Defence at [39];
(iv)PIC admits that the Fair Treatment System was designed to be beneficial: SOC at [46], admitted in Defence at [38.1].
(v)PIC denies that the Fair Treatment System was a contractual entitlement of or to Mr Robinson: Defence at [60]. The explanation for that appears to be at [2.2] and [2.3] of the Defence, by reference to Mr Dasey’s Affidavit, Annexure JD2, that the effect that the benefits provided to Mr Robinson under PIC’s policies are discretionary in nature, and do not form part of Mr Robinson’s contract of employment, and PIC:
(A)says that the Fair Treatment System was characterised as a policy; and
(B)maintains that position even though it expressly invited Mr Robinson to use the Fair Treatment System, in connection with its decision to terminate his employment;
(vi)PIC does not admit (but does not say why) that the Fair Treatment System relates to s 139(1)(j) of the FW Act, which deals with procedures for consultation, representation and dispute settlement;
(vii)in Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177; (2014) 231 FCR 403; (2014) 247 IR 315; (2014) 315 ALR 243; (2014) 143 ALD 239; (2014) 67 AILR 102-324, (“Romero Appeal”) Farstad (the employer) argued that the policy there in issue was not contractual or part of the contract of employment: Romero Appeal at [49] per Allsop CJ, Rares and McKerracher JJ;
(viii)whether or not a policy will be incorporated into a contract of employment will depend upon the parties’ intentions as objectively ascertained: Romero Appeal at [34] per Allsop CJ, Rares and McKerracher JJ;
(ix)in approaching the task of ascertaining the parties’ intention, the starting point will be the language of the contract, to be viewed in context, not in abstract isolation, and regard must be had to the purpose and object of the transaction: Romero Appeal at [35] per Allsop CJ, Rares and McKerracher JJ;
(x)it is necessary to consider context, and particularly at the time that PIC gave Mr Robinson the Termination Letter: Mr Dasey’s Affidavit, Annexure JD3, page 16: Romero Appeal at (particularly) [21] and [35] per Allsop CJ, Rares and McKerracher JJ;
(xi)the Contract Schedule at page 11 makes it clear that:
(A)Mr Robinson was required to comply with PIC’s policies, and noncompliance with policies was a reason for Mr Robinson’s termination: see Termination Letter; and
(B)if Mr Robinson utilised the Fair Treatment System, he was required to follow its processes;
(xii)when read with the Offer Letter: Mr Dasey’s Affidavit, Annexure JD1, page 5, which requires Mr Robinson to comply with PIC’s policies, the Fair Treatment System is expressed to contain obligations on PIC;
(xiii)the obligations under the Fair Treatment System were mutual;
(xiv)mutuality of obligations under policies was considered in Romero Appeal at [39], [41] and [43] per Allsop CJ, Rares and McKerracher JJ;
(xv)in Romero Appeal at [43] per Allsop CJ, Rares and McKerracher JJ, mention is made of a case in which a Court rejected a contention, that although it was common ground that an employee was bound by a policy, the employer would not be contractually bound, for the reason that it defied both logic and common sense;
(xvi)even in a case similar to this where the employer sought to rely on exclusionary provisions, similar to the ones that PIC seeks to rely on (despite, in this case, expressly offering Mr Robinson the particular benefit), in this case, it is necessary to look at the whole relationship and not only at what was said and done when the relationship was first formed. In the dynamic and fluid environment of a contract of employment, the subsequent actions of the parties may impliedly vary or amend the contract such that the true agreement between the parties is no longer reflected by the written contact: WorkPac Pty Ltd v Rossato [2020] FCAFC 84; (2020) 278 FCR 179; (2020) 296 IR 38; (2020) 378 ALR 585 (“WorkPac – FCAFC”) at [90] to [93] per Bromberg J;
(xvii)both the Contract Letter and Termination Letter, which invited Mr Robinson to use the Fair Treatment System, make it clear that the Fair Treatment System was a benefit under Mr Robinson’s contract of employment;
(xviii)courts have been prepared to determine all questions, in one hearing, in similar cases: see, for example, Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCA 439 at [26] per Marshall J where it is noted that “Farstad rejected the notion that the Policy formed a part of Ms Romero’s contract of employment”, although it does not seem that any party in that matter asked for a separate question to be determined; and
(xix)these submissions should be considered in the context of the Court considering the likelihood of PIC succeeding on its arguments in relation to whether the Fair Treatment System was a safety net contractual entitlement, if they were to be considered in one hearing, rather than as a preliminary question. If the chances of success are minimal (as Mr Robinson submits they are) then the Court should refuse to deal with the matter as a separate question; and
(b)in response to PIC’s written submissions:
(i)PIC admits:
(A)it had a Fair Treatment policy: SOC at [40]; Defence at [31], and admits that Annexure JD4 to Mr Dasey’s Affidavit is the FTS Policy;
(B)the FTS Policy allowed Mr Robinson to address his concerns and ensured his concerns were addressed: SOC at [44]; Defence at [36]; and
(C)the FTS Policy was a benefit: SOC at [46]; Defence at [38.1];
(ii)PIC does not dispute any of the annexures to Mr Dasey’s Affidavit: see [4(f)(i) and (iii)] above;
(iii)the starting point is that all issues of fact and law should generally be determined at one time;
(iv)notwithstanding the heading “Application of Principles”, no effort has been made to apply the principles, and there is no more than a restatement of the principles themselves;
(v)[8(a)-(d)] below is just a statement of the law with no explanation as to how or why and no application of the principles, and [8(d)] is speculative and vague;
(vi)the starting point is whether or not Mr Robinson had a safety net contractual entitlement;
(vii)despite there being no dispute, on the facts, the Proposed Question for determination, is still one of fact and law. It is largely because there is no dispute on the facts that the question is not “ripe” for determination, now, as a separate question, and Mr Robinson submits that the answer is clear and obvious but should be dealt with, and determined, in one proceeding;
(viii)in relation to [4(g)] above, it is not appropriate to make a submission to the effect that determining the separate questions will take a short time as PIC has no basis and cannot say how long it will take the Court to deal with the question and to make a judgement. Delay, will almost certainly occur, for the reasons set out in Annexure EM2 to Ms Moran’s Affidavit; and
(ix)in relation to [4(i)] above, Mr Robinson’ perspective is completely the opposite, and PIC has pleaded no factual circumstances to support that submission.
CONSIDERATION
Rules
The applicable legislative provision, with effect from 1 September 2021, is Part 18 of the GFL Rules. Part 18 of the GFL Rules is, save for numbering changes, identical to the previously applicable Part 17 of the Federal Circuit Court of Australia Rules 2001 (Cth) (“FCC Rules”).
Part 18 of the GFL Rules is as follows:
Part 18—Separate decision on question
18.01 Definitions for Part 18
In this Part:
question includes a question or issue in a proceeding, whether of fact or law, or partly of fact and partly of law, and whether raised in a document, by agreement of the parties or otherwise.
18.02 Order for decision
The Court may make an order for the decision by the Court on a question separately from another question at any time in a proceeding.
18.03 Separate question
A separate question must:
(a) set out the question or questions to be decided; and
(b) be divided into paragraphs numbered consecutively.
18.04 Orders, directions on decision
If a question is decided under this Part, the Court may make the orders and directions that the nature of the case requires.
18.05 Disposal of proceeding
The Court may, in relation to a decision on a question under this Part:
(a) dismiss the proceeding or any part of the proceeding; or
(b) give judgment, including a declaratory judgment; or
(c) make another order.
Case law
The case law concerning whether there ought to be a separate hearing on a separate question is not seriously in dispute, and has been set out in a series of cases in relation to the former Part 17 of the FCC Rules: see Devonshire v Magellan Powertronics Pty Ltd [2013] FMCA 207; (2015) 231 IR 198; (2013) 275 FLR 273; (2015) 65 AILR 101-892 (“Magellan Powertronics”) at [24]-[34] per Lucev FM; White v Westfield Vet Hospital& Ors [2018] FCCA 3833 (“Westfield Vet Hospital”) at [6]-[16] per Judge Kendall; Thomson v Kimberly College Limited & Ors [2020] FCCA 3361 (“Kimberly College”) at [22]-[24] per Judge Jarrett. In part, that case law can be summarised as follows:
(a)the law developed in relation to r 30.01 of the Federal Court Rules 2011 (Cth) guides the exercise of the relevant discretion: Kimberly College at [22] per Judge Jarrett; Westfield Vet Hospital at [8] per Judge Kendall, applying Magellan Powertronics;
(b)the party applying for a separate hearing of an issue prior to the hearing of the substantive matter, bears the onus of demonstrating that there should be the preliminary hearing contended for: Kimberly College at [23] per Judge Jarrett; Westfield Vet Hospital at [9] per Judge Kendall citing State of Western Australia v Galati [2017] FCA 236 per Gilmour J at [10]; and
(c)in general, it is preferable that all issues of fact and law in a proceeding be determined at one time, but the preliminary determination of separate questions or issues may be appropriate where their determination in a separate question may dispose of the action or contribute to the saving of time and cost by substantially narrowing the scope of issues to be decided: Kimberly College at [24] per Judge Jarrett.
In Magellan Powertronics at [27]-[28] per Lucev FM reference was made to the relevant principles as summarised by the Federal Court as follows:
27.The principles governing whether an order for determination of a separate question ought to be made have been conveniently and succinctly summarised in the Federal Court’s judgment in Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 as follows (at [8] per Branson J):
(a) the term “question” in O 29 r 1 includes any question or issue of fact or law in a proceeding. The distinction in the rule between an “issue” and a “question” is the distinction between that which, when resolved, will result in an adjudication in favour of one party or the other, being an “issue”, and less decisive matters of dispute being “questions” (Landsal Pty Ltd (in liq) v REI Building Society (1993) 41 FCR 421 at 425; 113 ALR 643 at 647);
(b)a question can be the subject of an order for a separate decision under O 29 r 2 even though a decision on such a question will not determine any of the parties’ rights (Landsal Pty Ltd (in liq) v REI Building Society at FCR 425; ALR 647);
(c)however, the judicial determination of a question under O 29 r 2 must involve a conclusive or final decision based on concrete and established or agreed facts for the purpose of quelling a controversy between the parties (Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; 161 ALR 399; [1999] HCA 9 at [45]);
(d)where the preliminary question is one of mixed fact and law, it is necessary that the question can be precisely formulated and that all of the facts that are on any fairly arguable view relevant to the determination of the question are ascertainable either as facts assumed to be correct for the purposes of the preliminary determination, or as agreed facts or as facts to be judicially determined (Jacobson v Ross [1995] 1 VR 337 at 341, referring to Nissan v Attorney-General; [1970] AC 179 at 242-3; [1969] 1 All ER 629 at 663-4 per Lord Pearson; Bass v Perpetual Trustee at [53]);
(e)care must be taken in utilising the procedure provided for in O 29 r 1 to avoid the determination of issues not “ripe” for separate and preliminary determination. An issue may not be “ripe” for separate and preliminary determination in this sense where it is simply one of two or more alternative ways in which an applicant frames its case and determination of the issue would leave significant other issues unresolved (CBS Productions Pty Ltd v O’Neill (1985) 1 NSWLR 601 per Kirby P at 606);
(f)factors which tend to support the making of an order under O 29 r 2 include that the separate determination of the question may:
(i) contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the action; or
(ii) contribute to the settlement of the litigation (CBS Productions Pty Ltd v O’Neill per Kirby P at 607);
28.In Reading Australia the Federal Court concluded that the making of an order is ultimately to be determined by whether it is just and convenient to do so: Reading Australia at [9] per Branson J.
CONSIDERATION
Overall consideration of this matter requires regard to be had to s 190 of the FCFCOA Act, which provides as follows;
(1)The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court's overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4) The civil practice and procedure provisionsare the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b)any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).
It is pertinent to note that the relief sought in this matter is as follows:
81. The Applicant seeks the following relief:
82. Declarations that:
a. The Fair Treatment System was a safety net contractual entitlement of the Applicant;
b. The Applicant was not given fair treatment or the benefit of the Fair Treatment System;
c. The Respondent’s failure to comply with the Applicant’s safety net contractual entitlement was a contravention of the Fair Work Act.
83. An order:
a. Reinstating the Applicant to his position of Production Superintendent; or
b. Awarding the Applicant compensation for the loss that he has suffered.
It follows from the relief sought that insofar as the question PIC seeks to have answered as a separate question (as set out at [1] above) is concerned, that the question perhaps goes further than is required by reason of the relief sought, which really only requires paragraph (b) of the Proposed Question to be answered. That is because of the definition of “safety net contractual entitlement” is s 12 of the FW Act, which is as follows:
safety net contractual entitlement means an entitlement under a contract between an employee and an employer that relates to any of the subject matters described in:
(a)subsection 61(2) (which deals with the National Employment Standards); or
(b) subsection 139(1) (which deals with modern awards).
The entitlement in this case to the benefit of the FTS Policy is said to be one under s 139(1)(j) of the FW Act, namely “procedures for consultation, representation and dispute settlement”.
Assuming (without presently deciding) that the FTS Policy meets the definition under s 139(1)(j) of the FW Act it can only be an entitlement under a contract between Mr Robinson and PIC.
There appears to be no dispute that the outer bounds of the alleged safety net contractual entitlement fall to be determined by reference to the Contract Letter and the Contract Schedule, with necessary resort to the FTS Policy itself. In this regard, it appears that there are no contested issues as to the documentation required for the determination of the question posed by paragraph (b) of the Proposed Question. Furthermore, there was no evidence put before the Court, which suggests that any issue of variation of the relevant terms in the Contract Letter and the Contract Schedule arises, whether by conduct or mutual intention: Westpac Banking Corporation v Wittenberg and Others [2016] FCAFC 33; (2016) 242 FCR 505; (2016) 256 IR 181; (2016) 330 ALR 476, FCR at [254]-[262] per Buchanan J; WorkPac Pty Ltd v Rossato [2021] HCA 23; (2021) 271 CLR 456; (2021) 95 ALJR 681; (2021) 309 IR 89; (2021) 392 ALR 39 (“Rossato”) at [41] and [66]-[67] per Kiefel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ (reversing Workpac – FCAFC cited in Mr Robinson’s Submissions); Construction, Forestry, Maritime, Mining and Energy Union & Anor v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 96 ALJR 89; (2022) 312 IR 1 at [43], [59] and [66] per Kiefel CJ, Keane and Edelman JJ, [124] per Gageler and Gleeson JJ, and [162], [166] and [173] per Gordon J (delivered post submissions in these proceedings).
It is fair to observe that if the FTS Policy is not an entitlement under a contract between Mr Robinson and PIC (and specifically one that relates to the subject matter of s 139(1)(j) of the FW Act), then it would appear that Mr Robinson would arguably not be entitled to any relief, the relief being dependent upon the fact that the FTS Policy is a safety net contractual entitlement enforceable under s 542(1) of the FW Act.
In the circumstances, a negative answer to paragraph (b) of the Proposed Question would probably be determinative of the outcome of the proceedings, and this is a factor in favour of the determination of the Proposed Question (at least as to paragraph (b)) as a separate question.
It is also the case that a positive answer to paragraph (b) of the Proposed Question might be conducive to a reconsideration of the parties negotiating positions, and (notwithstanding earlier unsuccessful mediation) the possibility of a settlement of the proceedings.
The Court also notes that the determination of a separate question limited to paragraph (b) of the Proposed Question is limited in scope, and not likely to take more than half a day to argue. That compares with the prospect of a hearing on all of the substantive issues which would require consideration of the grounds and reasons said to justify the summary termination of Mr Robinson which will require:
(a)evidence from those involved in the incidents giving rise to the summary termination; and
(b)consideration of the entirety of the process resulting in Mr Robinson’s termination (including, it would appear, the FTS process) and its application to Mr Robinson in accordance with the FTS Policy requirements.
Although the matter has not been the subject of submissions it is apparent from reading the Statement of Claim and the Defence, and from the Courts own knowhow, that a substantive hearing on these types of issues is likely to take at least two, and probably three days, of hearing time. It follows that, were a separate question limited to paragraph (b) of the Proposed Question to be considered, it may render a substantive hearing unnecessary, thereby saving considerable hearing time and significantly reducing costs, not only to the parties, but also to the Court (and hence the taxpayer). In any event, determination of paragraph (b) of the Proposed Question as a separate question would not add to the expense of a substantive hearing, as that question would have to be determined in any event. The Court does acknowledge that if the answer to the question posed by paragraph (b) of the Proposed Question, heard as a separate question, is answered “yes” then there will be some further delay before the substantive hearing can be listed. The Court also observes that a half day hearing of a separate question would be likely to be this calendar year, whereas a substantive hearing of the entire proceedings would be unlikely to be heard before late January 2023, at the very earliest.
The Court notes that it is usual for all disputed issues of fact and law to be heard together, but here, in the Court’s view, the quickest, most inexpensive and efficient resolution of this matter according to law would be facilitated by a consideration of a separate question in the form of paragraph (b) of the Proposed Question which has the capacity to significantly reduce the time and expense of these proceedings if it were to render a substantive hearing unnecessary, or result in a settlement of the proceedings, and, even if it did not do either of those things, it would certainly not increase the expense of the proceedings, although it will increase the length of time likely to elapse before a substantive hearing could take place.
Having regard to s 190 of the FCFCOA Act in the context of the matters set out above, the Court has come to the view that it is appropriate that it consider the Proposed Question as a separate question in these proceedings, but that that separate question be limited to that effectively posed by paragraph (b) of the Proposed Question. The question to be determined as a separate question will therefore be as follows:
Is the Respondent’s “Fair Treatment System” policy a “safety net contractual entitlement” for the purposes of s 542(1) of the Fair Work Act 2009 (Cth)?
The Court notes that is very similar to the form of question which Mr Robinson’s lawyers indicated was the appropriate separate question to be considered if the Court was prepared to entertain PIC’s application for a separate question to be determined: Ms Moran’s Affidavit, Annexure EM2.
There will therefore be an order reflecting the conclusion reached in [22] above.
Having regard to the provisions of s 570 of the FW Act, there will also be an order that costs, if any, be reserved. Otherwise, the matter is to be adjourned to 9.00am on 9 September 2022 for further directions.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 12 August 2022
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