Australian Education Union v Department of Training & Employment [2002] FCA 1149 | Case summary

Introduction: 1 These proceedings commenced with an application invoking the jurisdiction of the Court under s 413A of the Workplace Relations Act 1996 (Cth) and s 39B(1A)(c) of the Judiciary Act 1903 (Cth). At the time that the proceedings were commenced in 1999 the Australian Education Union ("AEU") was negotiating, with the State Minister for Training and Employment and a number of Technical Colleges, a new certified agreement under the Federal Act to replace the Lecturers (Public Sector, Technical and Further Education) Certified Agreement 1996, the two year term of which had then nominally expired. Negotiation of a new agreement had hit a stumbling block in part related to the desire of the State to include in any such agreement a clause which would allow it to offer workplace agreements under the Workplace Agreements Act 1993 (WA). The matter came to a head in September 1999 when the State Government submitted, for approval and registration with the State Commissioner for Workplace Agreements, ten such agreements covering ten TAFE Colleges. The AEU maintained that, notwithstanding the 1996 amendments to the Federal Act and the nominal expiry of the former certified agreement, the later amendments continued in force and would render invalid any inconsistent award or the registration of any inconsistent agreement under State law. It sought declarations and other relief accordingly. 2 After a contested hearing, declarations were made in the following terms: "1. That notwithstanding the nominal expiry of the certified agreement known as the Lecturers (Public Sector, Technical and Further Education) Certified Agreement 1996, its terms and conditions continue in force unless and until replaced by a new certified agreement or otherwise terminated according to law. 2. The ten proposed Western Australian Department of Training and Employment Lecturers' (Public Sector, Technical and Further Education) Collective Workplace Agreements 1999, lodged for registration pursuant to Part 2A of the Workplace Agreements Act 1993 (WA) are inconsistent with the terms and conditions of the Lecturers (Public Sector, Technical and Further Education) Certified Agreement 1996 and are unable validly to be registered, to enter into force, under that Act while the certified agreement continues in force. 3. Liberty to the parties to apply within twenty one days for further ancillary relief. 4. Liberty to apply on the question of costs." 3 The applicant subsequently filed a motion seeking the costs of the action. Both parties filed written submissions in relation to that motion. There was no oral hearing of the motion. It falls for decision on the written submissions.

Statutory Framework 4 The jurisdiction of the Federal Court of Australia under the Workplace Relations Act is dealt with in Part XIV. Section 412 provides: "412(1) The Court has jurisdiction with respect to matters arising under this Act in relation to which: (a) applications may be made to it under this Act; or (b) actions may be brought in it under this Act; or (c) questions may be referred to it under this Act; or (d) appeals lie to it under section 422; or (e) penalties may be sued for and recovered under this Act; or (f) prosecutions may be instituted for offences against this Act." Subsections (2) and (3) which relate to the jurisdiction of the Court pursuant to a remitter under s 44 of the Judiciary Act are not relevant for present purposes. Section 413A, which was expressly invoked in the application in the present proceedings, is in the following terms: "413A(1) The Court may give an interpretation of a certified agreement on application by: (a) the Minister; or (b) an organisation or person bound by the certified agreement; or (c) an employee whose employment is subject to the agreement. (2) The decision of the Court is final and conclusive and is binding on: (a) the organisations and persons bound by the agreement; and (b) the employees whose employment is subject to the agreement; who have been given an opportunity of being heard by the Court." Section 413A does not of itself confer jurisdiction but identifies a class of application which may be made to the Court under the Act and in respect of which the Court therefore has jurisdiction under s 412(1)(a) of the Act. 5 The other head of jurisdiction invoked in the present proceedings is that conferred by s 39B(1A) of the Judiciary Act which provides: "39B(1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: (a) in which the Commonwealth is seeking an injunction or a declaration; or (b) arising under the Constitution, or involving its interpretation; or (c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter." It will be noted that there is an overlap between the jurisdiction conferred on the Federal Court by s 412 of the Workplace Relations Act and that conferred upon it by s 39B(1A)(c). The matters in which jurisdiction is conferred upon the Court by s 412 would no doubt all answer the description of matters arising under a law made by the Parliament for the purposes of s 39B(1A)(c) of the Judiciary Act. 6 The respondent in this case resists the motion for costs of the proceedings relying upon s 347 of the Workplace Relations Act which provides: "347(1) A party to a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 170CP) shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause. (2) In subsection (1): Costs includes all legal and professional costs and disbursements and expenses of witnesses." 7 The threshold question which arises is whether the proceedings in this case are proceedings to which s 347 applies to preclude the recovery of costs by the successful party. The AEU submits that the question for determination was whether agreements offered by the respondent employers under the State Act could validly be registered and come into force if the terms and conditions of an agreement certified under the Industrial Relations Act 1988 (now the Workplace Relations Act 1996) continued to have effect. That question, it was said, was not a matter arising under the Workplace Relations Act. 8 A matter arises under a law of the Commonwealth if: "… the right or duty in question in the matter owes its existence to Federal law or depends upon Federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validly) of the law." R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154 (Latham CJ); see also Felton v Mulligan (1971) 124 CLR 367 at 387 (Windeyer J), 408 (Walsh J) and 416 (Gibbs J); Moorgate Tobacco Co Ltd v Philip Morris Ltd (1979) 145 CLR 457 at 476 (Stephen, Mason, Aicken and Wilson JJ) and LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581-582. 9 The principle enunciated in Barrett's case was concerned with the construction of s 76(ii) of the Constitution. It also informs the construction of s 39B(1A)(c) of the Judiciary Act and that of s 347 of the Workplace Relations Act. In Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78, the High Court issued mandamus to a Deputy President of the Industrial Relations Commission requiring him to hear and determine a matter pending under the Act before him. The Court (Brennan, Gaudron and McHugh JJ) considered whether costs should be awarded to the successful applicant for mandamus which in that case was Hoyts Corporation Pty Ltd. The union, the Australian Theatrical and Amusement Employees Association, relied upon s 347 of the Industrial Relations Act which was in the same terms as the provision relied upon by the unsuccessful respondents in this case. 10 In holding that s 347 did apply to the proceedings in that case, the Court said, at 93: "The duties of a member of the Australian Industrial Relations Commission are created, expressly or impliedly, by the Act. When the President of the Commission, in exercise of his power to establish a Full Bench of the Commission (s 30) appoints a member to sit as a member of a Full Bench to hear and determine an industrial dispute, Pt VI, Div 2 of the Act imposes on that member a duty to hear and determine the industrial dispute as a member of the Full Bench accordingly. The order made in this case was an order to enforce that statutory duty. As the duty owes its existence to the Act, the controversy between the parties as to the enforcement of the duty is a matter arising under the Act. The jurisdiction of this Court conferred by s 75(v) of the Constitution was invoked to determine that matter. It follows that the proceeding in this Court was itself a proceeding in a matter under the Act. It follows that s 347(1) of the Act is applicable to the proceeding in this Court, albeit the jurisdiction of this Court invoked in that proceeding is conferred by s 75(v) of the Constitution." 11 The decision in Polites was distinguished in Re McJannet; Ex parte Australian Workers' Union of Employees, Queensland (No 2) (1997) 189 CLR 654. In that case the High Court, in the exercise of its original jurisdiction under s 75(v) had issued prohibition to the Judges of the Federal Court to prevent them from proceeding in the purported exercise of jurisdiction conferred by s 253X or s 253ZC of the Industrial Relations Act. The prosecutors had applied for an order for costs under s 26 of the Judiciary Act against the Media Entertainment and Arts Alliance which was the second respondent in the proceeding. The Court (Brennan CJ, McHugh and Gummow JJ) rejected a submission by the union that costs were not recoverable by virtue of s 347(1). It distinguished Polites saying, at 657: "The proceeding in this Court, however, is of a different nature and the controversy between the parties is a different matter. In this Court, the prosecutors asserted the absence of a jurisdiction in the Federal Court to proceed further in the proceeding pending there. The jurisdiction of this Court which the prosecutors invoked is conferred by s 75(v) of the Constitution. The duty which was sought to be enforced was the duty not to assume a jurisdiction which the Federal Court did not have. Although the jurisdiction of this Court to issue mandamus in Re Polites, like the jurisdiction to issue prohibition in the present case, was conferred by s 75(v) of the Constitution, the proceeding in Re Polites answered the description of a matter arising under the Act within the meaning of s 347(1). But the proceeding in the present case does not. The relief which was sought by way of mandamus owed its form and content to the provisions of the Act which imposed the duty that the respondent was commanded to perform. The relief which is sought in an application for prohibition is not for the enforcement of any right or duty created or conferred by the Act. Accordingly, s 347(1) has no application to a proceeding for the issue by this Court of prohibition under s 75(v) of the Constitution." 12 In my opinion, McJannet does not assist the Union in the present case. The declarations which the Union secured were dependent upon the continuance of rights and obligations created by the previous certified agreement. It was the continuing paramount operation of the agreement and of s 152 of the Workplace Relations Act which, by virtue of s 109 of the Constitution, prevented the valid registration of the proposed State agreements. 13 In my opinion, the proceedings were proceedings in a matter arising under the Act regardless of whether the jurisdiction invoked was properly characterised as that conferred by s 412 of the Workplace Relations Act or that conferred by s 39B(1A)(c) of the Judiciary Act.

Australian Education Union v Department of Training & Employment

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