Teekay Shipping (Australia) Pty Ltd v Auld

FEDERAL COURT OF AUSTRALIA

Teekay Shipping (Australia) Pty Ltd v Auld [2020] FCAFC 19

File number:

NSD 1573 of 2019

Judges:

LOGAN, WIGNEY AND ANDERSON JJ

Date of judgment:

11 February 2020

Catchwords:

EMPLOYMENT AND INDUSTRIAL RELATIONS – apparent referral of question by President to a Full Bench of the Fair Work Commission – application for constitutional writs and related relief – where the Full Bench considered a supplementary question that was not formally referred to it – where the Full Bench issued reasons for a decision but failed to issue a decision answering either of the questions apparently posed to it

Held:  constitutional writ of mandamus issued requiring it to answer the question or questions referred to it

Legislation:

Fair Work Act 2009 (Cth) ss 589, 615, 615A

Cases cited:

Auld and Ors v Teekay Shipping (Australia) Pty Ltd [2019] FWCFB 6047

Date of hearing:

11 February 2020

Registry:

New South Wales

Division:

Fair Work Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

12

Counsel for the Applicant:

Mr S Prince SC with Mr B Rauf

Solicitor for the Applicant:

Kingston Reid

Counsel for the First to Twenty-First Respondents:

Mr A Slevin

Solicitor for the First to Twenty-First Respondents:

Slater and Gordon Lawyers

Counsel for the Twenty-Second Respondent:

The Twenty Second Respondent filed a submitting notice, save as to costs

ORDERS

NSD 1573 of 2019

BETWEEN:

TEEKAY SHIPPING (AUSTRALIA) PTY LTD

Applicant

AND:

GEOFFREY AULD

First Respondent

DARREN MICHAEL HOBBY

Second Respondent

BADEN FRANCIS CROOK (and others named in the Schedule)

Third Respondent

JUDGES:	LOGAN, WIGNEY AND ANDERSON JJ
DATE OF ORDER:	11 FEBRUARY 2020

THE COURT ORDERS THAT:

1.A constitutional writ of mandamus be issued to the twenty second respondent, the Fair Work Commission, requiring the Commission to answer, by decision, such question or questions which were posed to it for answering by the Commission’s President under the Fair Work Act 2009 (Cth).

2.No order as to costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)

LOGAN J:

1. On 2 September 2019, the Fair Work Commission (the Commission) issued what purports to be a decision in respect of proceedings between Mr Auld and a number of other employees and the respondent Teekay Shipping (Australia) Pty Ltd (Teekay Shipping) (the applicant in these proceedings):  see Auld and Ors v Teekay Shipping (Australia) Pty Ltd [2019] FWCFB 6047. It is necessary to use the qualification, purported because one thing which is not manifest from the document entitled “Decision”: is, with respect, any decision of the Commission at all. In substance, the document entitled “Decision” is nothing more than reasons for a decision which has never been pronounced, much less has it ever been translated into a formal order of the Commission.

2. Teekay Shipping has sought constitutional writs and related relief in this Court on the premise that there was a decision of the Commission.  The background to the…