Sedco Forex International Inc. vNational Offshore Petroleum Safety and Environmental Safety Authority T/A NOPSEMA
[2016] FWC 761
•22 FEBRUARY 2016
| [2016] FWC 761 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.608 - Referring questions of law to the Federal Court
Sedco Forex International Inc.
v
National Offshore Petroleum Safety and Environmental Safety Authority T/A NOPSEMA(C2015/7336)
JUSTICE ROSS, PRESIDENT | PERTH, 22 FEBRUARY 2016 |
Referral of a question of law to the Federal Court- s.608 Fair Work Act 2009 (Cth) - application refused.
[1] The matter before me is an application by Sedco Forex International Inc. (Sedco) for the referral of a question of law to the Federal Court of Australia pursuant to s.608 of the Fair Work Act 2009 (Cth) (the FWAct). The National Offshore Petroleum Safety and Environmental Safety Authority (NOPSEMA) opposes the referral application. The relevant background facts are not in dispute and may be shortly stated.
[2] In January 2014, Sedco was the registered operator of an offshore drilling rig, Transocean Legend. Transocean Legend was an ‘offshore petroleum facility’ for the purpose of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (the OPGGS Act). On 23 January 2014, following a planned inspection of Transocean Legend, NOPSEMA issued Sedco with an improvement notice under Schedule 3, clause 78(I) of the OPGGS Act. The improvement notice was issued on the basis that NOPSEMA alleged that it believed that Sedco was contravening clause 9(2)(e) of Schedule 3 of the OPGGS Act.
[3] On 13 February 2014, Sedco applied to the Commission seeking revocation of the NOPSEMA’s decision to issue the improvement notice. The application was made pursuant to clauses 80A and 81 of Schedule 3, Part 4, Division 5 of the OPGGS Act, clause 3 of Schedule 3 of the OPGGS Act, and Rule 58 of the Fair Work Commission Rules 2013.
[4] At a conference convened with the parties on 30 June 2014 the Commission requested that the parties confer to see if they could agree on the proper approach to the appeal, and the appropriate questions to be determined in the appeal. The parties conferred but were unable to agree.
[5] It was accepted by both parties that the hearing of the application is in the nature of an appeal de novo or 'merits review'. The parties disagreed, however, about what materials would be relevant to the Commission's determination of the appeal. Sedco contended that the Commission should determine the appeal based on the facts and law current at the time of the Commission’s decision (current assessment). NOPSEMA contended that the Commission should determine the appeal based on the facts and law current at the time of NOPSEMA’s decision to issue the notice (historical assessment). The parties jointly sought a determination from the Commission as to this preliminary question of law, that is whether the appeal required current assessment or historical assessment.
[6] The preliminary question of law was heard by Acting Commissioner Cloghan on 31 March 2015, who received detailed written and oral submissions from the parties. The substantive hearing in the appeal was held over pending the outcome of the preliminary question of law and the settling of the questions for determination in the substantive hearing.
[7] Acting Commissioner Cloghan delivered his decision on 26 October 2016 and determined that a historical assessment was the appropriate method of determining the application adopting the questions for determination that had been proposed by NOPSEMA. Sedco has appealed the Commissioner’s decision and that appeal is to be heard on 25 February 2016.
[8] It is also relevant to note that the steps required to be taken under the improvement notice were completed in 2014 and that at the time of the Commissioner’s decision the Transocean Legend was no longer a registered facility for the purposes of the OPGGS Act. Despite these considerations Sedco maintains its objection to the improvement notice and continues to press for its revocation.
[9] The referral application is brought pursuant to s.608 of the FW Act, which is in the following terms:
608 Referring questions of law to the Federal Court
(1) The President may refer a question of law arising in a matter before the FWC for the opinion of the Federal Court.
(2) A question of law referred under subsection (1) must be determined by the Full Court of the Federal Court.
(3) The FWC may make a decision in relation to the matter even if the Federal Court is determining the question of law, except if the question is whether the FWC may exercise powers in relation to the matter.
(4) Once the Federal Court has determined the question, the FWC may only make a decision in relation to the matter that is not inconsistent with the opinion of the Federal Court (if the FWC has not already done so).
(5) However, if the FWC has made a decision in relation to the matter that is inconsistent with the opinion of the Federal Court, the FWC must vary the decision in such a way as to make it consistent with the opinion of the Federal Court
[10] Section 608(1) imposes two conditions on the power to refer a question for the opinion of the Federal Court: first, the question must be one ‘of law’; and second, the question must be one ‘arising in a matter before the Commission’. If these two conditions are satisfied the President’s discretion to refer the question of law is enlivened.
[11] The discretion conferred by s.608(1) is to be exercised having regard to the purpose and objects of the Act. In this context I note that s.577 of the FW Act provides that the Commission must perform its functions and exercise its powers in a manner that:
‘(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.’
[12] In my view the discretion conferred by s.608 should, where possible and appropriate, be exercised in such a way as to avoid undue delay in the determination of matters before the Commission. I note that such an approach is entirely consistent with the approach taken by a number of Full Benches in relation to the legislative antecedents to s.608. 1
[13] Sedco seeks to refer the following question to the Full Court of the Federal Court,:
‘Whether the Fair Work Commission, in its capacity as reviewing authority for an appeal under cl 81 of Schedule 3 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 should determine the matter by reference to:
(a) the facts, circumstances and law current at the time of the Fair Work Commission’s decision in the appeal, or
(b) the facts, circumstances and law current at the time of the original decision which is the subject of the appeal;
and accordingly, which of the two proposed forms of questions for determination outlined in paragraphs 18 and 19 of the decision of Commission Cloghan in Sedco Forex International Inc v National Offshore Petroleum and Environmental Management Authority t/as NOPSEMA [2015] FWC 7239, is correct.’
[14] It is not in dispute that the preconditions for referral have been met. The discretion in s.608(1) is therefore enlivened, the issue is whether the discretion to refer the question of law should be exercised.
[15] Sedco submits that the question of law should be referred, for the reasons set out below.
(i) The question of law is fundamental to the Commission’s jurisdiction in its capacity as reviewing authority under the OPGGS Act. The resolution of the question of law will also assist in the characterisation of the jurisdiction conferred on the Commission by other Commonwealth health and safety legislation, for example under s.229 of the Work Health and Safety Act 2011 (Cth).
(ii) The referral is likely to avoid unnecessary costs to be incurred in the hearing of the appeal, or judicial review to a single judge of the Federal Court.
(iii) The question of law in contention involves real issues of substance and complexity. A similar question has previously been determined by a Full Bench of the AIRC in Australian National Railways Commission v Rutjens2 (‘Rutjens’). Sedco contends that the decision of Acting Commissioner Cloghan did not follow the reasoning in Rutjens and that there is no reason to distinguish Rutjens from the present matter. NOPSEMA submits that Rutjens is distinguishable.
(iv) Any delay caused by the referral will not prejudice either party and is not a material consideration.
(v) The Federal Court’s determination of the question of law will promote that purpose and objects of the FW Act and the Commission’s exercise of its functions and powers by ‘enabling the swift resolution of applications for review on the merits, avoid the potential for errors of jurisdiction, and minimise unnecessary technical legal argument as to the nature of such appeals and how they should be determined’.3
(vi) Certainty as to the question of law will greatly assist the Commission and the industry participants who appear before it.
[16] In relation to the last point Sedco submits that:
‘Appeals of this kind, particularly against prohibition notices where the operation of the notice is not suspended and may halt operations at great cost to operators and disruption to the offshore workforce, can require the reviewing authority to make a decision particularly expeditiously.’ 4
[17] As mentioned earlier, NOPSEMA opposes the referral applications. NOPSEMA advances four points in opposition to the referral application:
(i) if the question was referred there would be a significant delay in the determination of the appeal;
(ii) allowing the appeal to be heard will not prejudice either party;
(iii) the resolution of the legal question sought to be referred will not necessarily resolve the matter before the Commission because if the question of law is determined in NOPSEMA’s favour Sedco still wishes to proceed with the OPGS Act appeal before a single member; and
(iv) the present litigation will have limited practical effect whichever way it falls.
[18] In relation to point (iv) NOPSEMA observes that Sedco will not be required to do anything, or be permitted not to do anything, as a result of the outcome of the litigation. This is said to be so because Sedco has already done the work required by the improvement notice and, in any event, the Transocean Legend is no longer a registered facility for the purposes of the OPGGS Act.
[19] I have decided to refuse the application for referral.
[20] As to the points advanced by Sedco in support of the referral application (summarised at paragraph [15] above) I acknowledge that the question of law is fundamental to the Commission’s jurisdiction in its capacity as reviewing authority under the OPGGS Act and that the question in contention involves real issues of substance and complexity. I also accept that there is no factual substratum of matters in dispute that may impose upon the Court’s capacity to answer the question of law.
[21] However, as I observed in Liviende, 5the Commission regularly interprets and applies legislation in many and varied circumstances and it is not appropriate to elevate the interpretation dispute in this matter to a Full Court of the Federal Court. In my view the most expeditious and appropriate course is to refuse the referral and have the matter heard and determined by the Commission. I am not persuaded that either party is prejudiced by such a course.
[22] Contrary to Sedco’s submission I am not persuaded that any delay caused by the referral ‘is not a material consideration’. 6 This dispute has been before the Commission since early 2014 and the appeal from Acting Commissioner Cloghan’s decision is to be heard this week, on 25 February 2016. As mentioned earlier, one of the obligations imposed by s.577 is that the Commission must perform its functions and exercise its powers in a manner that is ‘quick’. It is highly unlikely that the matter will be resolved more quickly if it was referred, as opposed to being determined, initially, by a Full Bench of the Commission. The parties may then have the matter determined by the court in a subsequent prerogative relief application.
[23] Nor do the other points advanced by Sedco persuade me to exercise my discretion to grant the referral application.
[24] The determination of the question of law by the Court will not necessarily dispose of the substantive application and hence it cannot be confidently predicted that the referral will avoid unnecessary costs.
[25] As to Sedco’s points (v) and (vi), I am satisfied that certainty as to the question of law and the minimisation of unnecessary technical legal argument can also be achieved by allowing the appeal from Acting Commissioner Cloghan’s decision to be heard and determined.
[26] I also note that the determination of the substantive application in this matter will have little practical impact. As Sedco acknowledges, the steps required under the improvement notice were completed in 2014 and Transocean Legend is no longer a ‘registered facility’ for the purposes of the OPGGS Act.
[27] The application is refused.
PRESIDENT
Written submissions:
Sedco Forex International Inc., 11 February 2016.
National Offshore Petroleum Safety and Environment Management Authority, 18 February 2016.
1 The Hoyts Corporation Pty Ltd and Australian Theatrical and Amusement Employees Association, Print K4341; Re Finnemores Pty Ltd, Print M5301; Bulga Coal Management Pty Ltd v CFMEU, Print PR924444 8 November 2002 per Marsh SDP, Cartwright SDP and Hoffman C.
2 (1996) 66 IR 237.
3 Sedco’s written submissions dated 11 February 2016 at paragraph 23.
4 Ibid at paragraph 24.
5 Health Services Union Tasmania No.1 Branch v Livende Inc [2013] FWC 4435.
6 Ibid at paragraph 22.
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