Altintas v O'Dea Lawyers

Federal Court of Australia (Full Court)|2018-09-27|Before: Charlesworth JJ

Declines to answer the reserved question on the basis that it does not have jurisdiction to do so.
Directs that a Registrar of the Court provide a copy of the Court's judgment to the Attorney-General for the State of South Australia and to the President of the South Australian Employment Tribunal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 This judgment concerns a question reserved to the Court by the South Australian Employment Tribunal (the SAET) on 14 December 2017. 2 The question concerns the jurisdiction of the SAET to hear and determine an appeal from an Industrial Magistrate exercising jurisdiction under the Fair Work Act 2009 (Cth) (the FW Act), in particular, whether such an appeal lies only to this Court. For the reasons which follow, we consider that this Court does not have jurisdiction to hear and determine the question and that it should, accordingly, refrain from doing so.

This Court's jurisdiction 15 The notice reserving the question to this Court indicates that the SAET considered that s 26 of the FCA Act authorised the referral. Section 26 provides: 26 Cases stated and questions reserved (1) A court from which appeals lie to the Court may state any case or reserve any question concerning a matter with respect to which such an appeal would lie from a judgment of the first-mentioned court for the consideration of the Court and the Court has jurisdiction to hear and determine the case or question. (2) Subject to any other Act, the jurisdiction of the Court under subsection (1): (a) if the court stating the case or reserving the question is a court of summary jurisdiction - must be exercised by: (i) a single Judge; or (ii) if a Judge considers that it is appropriate for the jurisdiction of the Court in relation to the matter to be exercised by a Full Court - a Full Court; or (b) if the court stating the case or reserving the question is not a court of summary jurisdiction - must be exercised by a Full Court. (3) A court referred to in subsection (1) shall not state a case, or reserve or refer a question concerning a matter referred to in that subsection, to a court other than the Court. 16 The effect of subs (1) is that, if an appeal may be made to this Court, the court from which the appeal lies may state a case or reserve a question concerning the matter in respect of which the appeal would lie. When a case is stated or a question reserved in those circumstances, this Court has jurisdiction to hear and determine the case or question. Conversely, if the matter is not one in which an appeal would lie to this Court, it does not have jurisdiction to hear and determine the question. 17 This means that, in the present case, this Court will have jurisdiction to hear and determine the reserved question only if an appeal would lie to this Court from a decision on the Appellant's appeal by the SAET. 18 Section 565(1B) of the FW Act (set out earlier in these reasons) is the source of this Court's jurisdiction to hear appeals from appellate decisions of eligible State or Territory courts. It provides that an appeal lies to this Court from a decision of an eligible State or Territory court which was "made on appeal" from a decision of the defined kind. This must be a reference to an appeal which the eligible State or Territory court had jurisdiction to hear and determine, in accordance with subs (1A). Subsection (1B) cannot sensibly be understood as referring to any other kind of appeal decision of an eligible State or Territory court. 19 For the reasons which follow, we are satisfied that, quite apart from the issue concerning the exercise of summary jurisdiction, the SAET does not have jurisdiction to hear and determine the appeal by the Appellant from the decision of the Industrial Magistrate.

The establishment of the SAET 20 In Kronen v Commercial Motor Industries Pty Ltd (trading as CMI Toyota) [2018] FCAFC 136, this Court considered the provisions concerning the establishment of the SAET and its jurisdiction. It is convenient to repeat presently some of the Court's reasons in Kronen concerning these matters. 21 The SAET was established on 1 July 2015 by the South Australian Employment Tribunal Act 2014 (SA) (the SAET Act). Between 1 July 2015 and 30 June 2017, its jurisdiction had been confined to the hearing and determination of proceedings under the Return to Work Act 2014 (SA). 22 In 2016, the South Australian Parliament enacted the Statutes Amendment (South Australian Employment Tribunal) Act 2016 (SA) (the 2016 Amendment). Amongst other things, the 2016 Amendment provided for there to be a Tribunal in Court Session, known as the South Australian Employment Court, as part of the SAET (s 5). Sections 6-6B vested jurisdiction over specified matters in the Tribunal in Court Session. The 2016 Amendment also provided for another part of the SAET to act as an industrial relations commission. It came into operation on 1 July 2017. 23 Part 4 of the 2016 Amendment effected amendments to the Fair Work Act 1994 (SA) (the FW (SA) Act). In particular, it substituted a new Ch 2 for the existing Ch 2. Amongst other things, the SAET was thereby vested with jurisdiction to hear and determine monetary claims under industrial legislation, awards and instruments. 24 Part 4 of the 2016 Amendment contained a number of special provisions relating to monetary claims. It also contained transitional provisions in s 69. By s 69(2), the IRCSA and the Industrial Relations Commission of South Australia were dissolved. This occurred with effect from 1 July 2017. Other subsections in s 69 provided for proceedings which had, or could have, been commenced in the IRCSA to be commenced or continued in the SAET: (11) A determination of an industrial authority under the principal Act in force immediately before the relevant day will, on and from the relevant day, be taken to be a determination of the Tribunal. (12) A right to bring proceedings before an industrial authority in existence under the principal Act before the relevant day (but not so exercised before that day) will be exercised as if this Part had been in operation before the right arose, so that the relevant proceedings may be commenced before the Tribunal rather than the industrial authority. (13) Any proceedings before an industrial authority under the principal Act immediately before the relevant day will, subject to such directions as the President of the Tribunal thinks fit, be transferred to the Tribunal where they may proceed as if they had been commenced before that Tribunal. (14) The Tribunal may - (a) receive in evidence any transcript of evidence in proceedings before an industrial authority, and draw any conclusions of fact from that evidence that appear proper; and (b) adopt any findings or determinations of an industrial authority that may be relevant to proceedings before the Tribunal; and (c) adopt or make any determination in relation to proceedings before an industrial authority before the relevant day (including so as to make a determination in relation to proceedings fully heard before the relevant day); and (d) take other steps to promote or ensure the smoothest possible transition from 1 jurisdiction to another in connection with the operation of this section. 25 The term "principal Act" used in these provisions is a reference to the FW (SA) Act. 26 Counsel for the Appellant submitted that the relevant transitional provisions are those found in Schedule 1 to the FW (SA) Act. We do not accept that submission. The Schedule 1 provisions were enacted in 1994 to provide for the transition from the Industrial Relations Act 1972 (SA) to the Industrial and Employee Relations Act 1994 (SA), as the FW (SA) Act was then known. They have no application to the transition in 2017 from the IRCSA to the SAET. 27 The SAET has been declared by Regulation to be an eligible State or Territory court for the purposes of the FW Act - see the definition of "eligible State or Territory court" in s 12 of the FW Act and reg 1.05 of the Fair Work Regulations 2009 (Cth).

The jurisdiction of the SAET 28 The materials did not indicate how the SAET had come to regard itself as seized of the Appellant's appeal to the IRCSA. It seems reasonable to suppose, however, that it had been thought by some that one of the provisions in s 69 of the 2016 Amendment had had the effect of transferring the Appellant's appeal from the IRCSA to the SAET. In particular, subs (13) may have been thought pertinent. It provides for any proceedings (a term which would include appeal proceedings) before an "industrial authority" (a term defined to include the IRCSA) immediately before the relevant day to be transferred to the SAET, subject to such directions as the President of the SAET thinks fit, and then to proceed as if they had been commenced before the SAET. 29 In Kronen, this Court held that s 69(13) should be construed having regard to the limits of the legislative power of the Parliament of South Australia, at [52]-[53]. This led the Court to conclude that s 69(13) refers only to proceedings before an industrial authority exercising jurisdiction under the FW (SA) Act, at [57]. It does not refer to proceedings in which the IRCSA is exercising jurisdiction under the FW Act. 30 As already noted, in the present case, the IRCSA was exercising the jurisdiction vested in it by ss 539, 545 and 546 of the FW Act. Accordingly, s 69(13) of the 2016 Amendment cannot be regarded as the means by which the SAET became vested with jurisdiction to hear and determine the Appellant's appeal. 31 For similar reasons, s 565(1A)(a) of the FW Act cannot be regarded as a source of jurisdiction of the SAET to hear the Appellant's appeal. As previously noted, subs (1A)(a) provides that an appeal lies from a State or Territory court exercising summary jurisdiction over a matter under the FW Act to the same court or to another State or Territory court as provided for by a law of that State or Territory. On the construction of s 69(13) adopted in Kronen, it cannot be regarded as such a law. There is no other law of the South Australian Parliament providing for an appeal from a decision of the IRCSA, exercising jurisdiction under the FW Act, to lie to the SAET. 32 We have not overlooked s 69(11) of the 2016 Amendment, which provides that a "determination of an industrial authority" under the FW (SA) Act in force before the relevant day is to be taken to be a determination of the SAET. The term "determination" used in s 69(11) is not defined in the 2016 Amendment. We observe, however, that s 4 of the 2016 Amendment introduced into the SAET Act a definition of the term "decision" as follows: decision, of a person or body (other than the Tribunal) under an Act includes a direction, determination or order of that person or body. 33 It seems therefore, that the term "determination" may have meaning which is broader than that of an order, and may encompass a decision or a finding. We are prepared to proceed on that understanding of the term, although noting that the Court did not receive any submissions on that question. However, that is of no consequence presently because, for the reasons given in Kronen, the determination cannot be regarded as a determination of the IRCSA in the exercise of jurisdiction under the FW (SA) Act. 34 Accordingly, we conclude that the SAET lacks jurisdiction to hear and determine the Appellant's appeal. This means that an appeal would not lie to this Court from an order of the SAET on the Appellant's appeal. 35 In Kronen, this Court held that the SAET has an implied jurisdiction under ss 545(3) and 546(1) to determine its own jurisdiction, and that an appeal from such a judgment may be to this Court. That remains the case. However, given that the jurisdiction of the SAET in the present circumstance was determined in Kronen, that implied jurisdiction cannot support the reservation of a question pursuant to s 26 of the FCA Act. 36 In accordance with the reasons in Kronen at [52]-[63], the Appellant's appeal from the orders of the Industrial Magistrate (when made) will lie either to the IRCSA (s 565(1A)(a)) or directly to this Court (s 565(1)).

Conclusion as to jurisdiction 37 As an appeal would not lie to this Court from a judgment of the SAET on the Appellant's appeal, the procedure under s 26 of the FCA Act is not available. Accordingly, this Court lacks jurisdiction to hear and determine the reserved question. Apart from saying that, on the basis of the submissions the Court did receive the reasons of Judge Hannon in Pope Nitschke appear to have some force, the Court declines to answer the reserved question. 38 In the light of [36] of these reasons, we will direct that a copy of this judgment be provided to the Attorney-General for the State of South Australia and to the President of the SAET. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices White, Perry and Charlesworth.

Statutes Amendment (South Australian Employment Tribunal) Act 2016(SA)ss 4, 5, 6-6B, 69

Industrial and Employee Relations Act 1994(SA)

Industrial Relations Act 1972(SA)

Fair Work Act 2009(Cth)ss 12, 539, 545, 546, 565

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