C v Commonwealth of Australia

Counsel for the Respondent: Dr J Renwick SC and Mr Y Shariff

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY FAIR WORK DIVISION NSD 251 of 2015

JUDGES: TRACEY, BUCHANAN AND KATZMANN JJ DATE OF ORDER: 21 AUGUST 2015 WHERE MADE: SYDNEY

1. Judgment be entered for the respondent.
2. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY FAIR WORK DIVISION NSD 251 of 2015

JUDGES: TRACEY, BUCHANAN AND KATZMANN JJ DATE: 21 AUGUST 2015 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 At common law enlisted members of the Australian Defence Force are not employees. The central question which falls for determination on the present application is whether such members are, nonetheless, "employees" within the meaning of the Fair Work Act 2009 (Cth) ("the FW Act"). In the opinion of the Court they are not.

THE FACTUAL BACKGROUND 2 The applicant enlisted in the Royal Australian Air Force ("RAAF") on 30 March 1999. On 23 September 2011 he was diagnosed HIV positive. On 3 October 2012, following a review of his circumstances by the Medical Employment Classification Review Board, he was issued with a termination notice pursuant to Reg 87(2) of the Defence (Personnel) Regulations 2002 (Cth) ("the Regulations") on the ground that he was medically unfit for further service. On 19 November 2012 he signed an election notice accepting the decision to terminate his service on medical grounds and elected to be terminated with effect from 31 January 2014. He "separated" from the permanent RAAF on that day. 3 Shortly afterwards the applicant commenced a proceeding in the Federal Circuit Court in which he claimed that the Commonwealth of Australia had contravened the FW Act by taking adverse action against him because of a physical disability.

PROCEDURAL HISTORY 4 Shortly after the application was filed the Commonwealth applied under s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) ("the FCCA Act") and r 13.10(a) of the Federal Circuit Court Rules 2001 (Cth) ("the FCC Rules") for summary dismissal on the ground that the applicant had no reasonable prospect of successfully prosecuting the proceeding. This was because, so it was contended, the relevant provisions of the FW Act did not apply to enlisted members of the Australian Defence Force. 5 On 23 January 2015 the Commonwealth applied to the Federal Circuit Court for an order that the proceeding be transferred to this Court pursuant to s 39 of the FCCA Act and r 8.02 of the FCC Rules. The transfer application was granted on 2 February 2015. Once the proceeding was transferred, the Federal Court Rules 2011 (Cth) ("FCR") applied to it as if it had been commenced in this Court: see FCR 27.13(4). 6 On 27 April 2015 Katzmann J made an order under s 37AI of the Federal Court of Australia Act 1976 (Cth) ("the FCA Act") that the name of the applicant not be published and that thereafter he be referred to as "C". 7 On 29 April 2015 the Chief Justice directed that the Commonwealth's application for summary dismissal should be determined by a Full Court.

THE APPLICANT'S CLAIM 8 C claimed that the Commonwealth had discriminated against him within the meaning of s 351 of the FW Act by taking adverse action against him. The adverse action was said to be that of an "employer against an employee" and by a "prospective employer against a prospective employee". The claim relating to a "prospective" employer and employee arose because C asserted that the relevant decision had the additional effect of preventing his participation in the RAAF Reserve once his permanent employment had been terminated. He identified the relevant forms of adverse action by reference to Item 1(a), (b), (c) and (d) and Item 2(a) and (b) of s 342(1) of the FW Act. 9 C's application sought two remedies under Pt 4-1 of the FW Act. They were compensation and the imposition on the Commonwealth of a pecuniary penalty. He sought orders that both payments should be made to him.

The Fair Work Act 10 Section 351(1) of the FW Act relevantly provides that "[a]n employer must not take adverse action against a person who is an employee … of the employer because of the person's … physical … disability …". This section is a civil remedy provision and a contravention renders an employer liable to a range of sanctions including the imposition of pecuniary penalties and compensation orders: see ss 545 and 546. 11 The term "adverse action" is relevantly defined in s 342(1) as follows: 342 MEANING OF ADVERSE ACTION (1) The following table sets out circumstances in which a person takes adverse action against another person. Meaning of adverse action Item Column 1 Column 2 Adverse action is taken by ... if ... 1 an employer against an employee the employer: (a) dismisses the employee; or (b) injures the employee in his or her employment; or (c) alters the position of the employee to the employee's prejudice; or (d) discriminates between the employee and other employees of the employer. 2 a prospective employer against a prospective employee the prospective employer: (a) refuses to employ the prospective employee; or (b) discriminates against the prospective employee in the terms or conditions on which the prospective employer offers to employ the prospective employee.

12 Section 12 contains definitions of the words "employee" and "employer". In each case the definition refers the reader to the first Division of each Part (save for Pt 1-1) in which the term is used in order to ascertain its meaning in a particular Part. The definition section thus anticipates (as is the fact) that different definitions appear in different parts of the Act. 13 Section 335 provides that, in Pt 3-1 (in which ss 342 and 351 appear) "employee and employer have their ordinary meanings (original emphasis)". 14 There are other references in the Act to the "ordinary meaning" of the terms "employee" and "employer": see, for example, ss 15, 30E, 30P and 770.

The Defence legislation 15 The service of members of the Defence Force is regulated by the Regulations which are made under the Defence Act 1903 (Cth). 16 The Regulations deal with the enlistment of members of the Defence Force and aspects of their subsequent service such as, promotion, posting, transfers and compulsory termination of service. 17 Regulation 87(1) provides that the service of an enlisted member of the Defence Force may be terminated in accordance with the Regulation for a number of prescribed reasons. They include that relied on in the present case, namely, that the member is "medically unfit". Regulation 87 further provides that: (2) The Chief of an enlisted member's Service may give the enlisted member a termination notice: (a) stating that it is proposed to terminate the enlisted member's service in the Defence Force; and (b) stating the reason for terminating the service; and (c) setting out particulars of the facts and circumstances relating to the reason for terminating the service that is sufficient to allow the enlisted member to prepare a statement of reasons why the service should not be terminated; and (d) inviting the enlisted member to give the Chief a written statement of reasons why the service should not be terminated; and (e) specifying a period of at least 28 days after the date of the notice as the period in which the enlisted member may give the statement of reasons. (3) … (4) … (5) The Chief must not terminate the enlisted member's service under this regulation in any other circumstances. (6) … 18 Regulation 117 provides that: No civil contract of any kind is created with the Crown or the Commonwealth as a result of: (a) the appointment of an officer; or (b) the enlistment of an enlisted member; or (c) the promotion of a member; or (d) the transfer of a member; or (e) the posting of a member.

THE ISSUES IN DISPUTE 19 The Commonwealth contends that C's application should be dismissed summarily because he has no reasonable prospect of successfully prosecuting it. That is because, so the Commonwealth submits, C is not an "employee" and it is not an "employer" within the meaning of ss 342(1) and 351(1) of the FW Act. 20 C, on the other hand, maintains that, at all relevant times, he was an employee and/or a prospective employee and the Commonwealth was his employer and/or prospective employer. 21 Both parties accept that, historically, enlisted servicemen and women were not employees. They joined issue on whether the historical position had been modified by statute and, in particular, by the provisions of the FW Act and the Regulations.

THE POSITION AT COMMON LAW 22 The legal history relating to the relationship between servicemen and women and the Crown can be traced back over many centuries: see China Navigation Company Limited v Attorney-General [1932] 2 KB 197 at 214-6, 225-9, 242-3. The authorities reviewed in this case establish that, at least since the reign of Charles II, the government and command of military forces had been vested in the Crown by prerogative right at common law and by statute. This meant, among other things that, as Lord Esher MR said in Mitchell v The Queen [1896] 1 QB 121 at 123: [a service officer] cannot as between himself and the Crown take proceedings in the courts of law in respect of anything which has happened between him and the Crown in consequence of his being a soldier. The courts of law have nothing whatever to do with such a matter. 23 Soldiers served at the pleasure of the Crown and could have their services terminated with or without cause: Kaye v Attorney-General (Tas) (1956) 94 CLR 193 at 203. 24 Another implication of the common law position was that "neither commission nor enlistment in the services does or can amount to a contract with the Crown": Commonwealth v Welsh (1947) 74 CLR 245 at 268 (Dixon J).

THE APPLICANT'S CASE 25 The applicant's principal submission was that the FW Act had modified the common law and the previous statutory position such that ss 342 and 351 of the FW Act applied to him and the Commonwealth. 26 An alternative argument that the scheme of the Regulations rendered him an employee of the Commonwealth was not pressed. 27 The applicant also foreshadowed seeking leave to amend his application to enable him to rely on the provisions of Pt 6-4 of the FW Act. That Part includes s 772(1)(f), which prohibits an employer from terminating an employee's employment by reason of the physical disability of the employee. Counsel advised the Court during argument, however, that such an application would not be made. 28 The applicant accepted that the provisions in the FW Act, such as ss 335 and 770 which provided that the words "employee" and "employer" "have their ordinary meanings", should be construed in the same way: cf. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-2. He urged the Court to accept that the "ordinary meanings" of "employee" and "employer" were wider than their common law meanings. In support of this primary contention he relied on a number of contextual considerations and the approach adopted by this Court in Konrad v Victoria (1999) 91 FCR 95 ("Konrad").

Konrad 29 The applicant emphasised that s 770 appeared in Pt 6-4 of the FW Act and that it was an object of the Part to give effect, or further effect, to various International Labour Organisation Conventions to which Australia was a party. Similar provisions in the Industrial Relations Act 1988 (Cth) ("the IR Act") had been considered in Konrad and had been found to apply to police officers and members of the armed forces, even though such persons were not, or at least, arguably not, employees at common law. The ordinary meaning of the word had, thereby, been broadened. The definition of "employee" in s 770 should be understood as reflecting this development. A similar approach should be taken to the construction of s 335 and the other provisions in the FW Act which contained the same definition. 30 We do not accept that the decision in Konrad has led to a change in the "ordinary" meaning of "employee" such that it comprehends persons who would not be treated as employees at common law. 31 The appellants in Konrad were officers in the Police Force of Victoria who had been dismissed. They challenged their dismissals in proceedings brought under Div 3 of Pt VIA of the IR Act. The object of the Division was to give effect to an international convention (the Termination of Employment Convention) to which Australia was a party: see s 170CA(1). Section 170DE(1) provided that "[a]n employer must not terminate an employee's employment unless there is a valid reason … connected with the employee's capacity or conduct or based on the operational requirements of the undertaking, establishment or service". Section 170DF(1)(f) provided that an employer must not terminate an employee's employment by reason of the employee's physical disability. The Division did not contain any definitions of the terms "employee" or "employer". It did, however, provide, in s 170CB, that an expression had the same meaning in the Division as it did in the Convention. The Convention referred to "workers" and "employed persons". 32 Finkelstein J (with whom North J agreed) held (at 127) that he could "see no reason why the word 'employee' when used in Div 3 should be confined to its common law meaning". One reason was that the expressions "employed person" and "worker" in the Convention did not bear common law meanings because the Convention applied to many countries in which the common law did not apply. Another was that the Convention covered all public employees and that no distinction should be drawn between holders of public office and public employees. His Honour said (at 127) that: In almost all respects a member of the police force is in the same position as any other employee of the Crown. He is subject to the direction and control of the Crown, although he acts, 'independently' in the manner in which he carries out certain duties. He is paid a regular wage and makes no profit. He is provided with equipment needed to carry out his duties. His position, nowadays at least, is permanent. He is entitled to holidays, sick leave and other entitlements afforded generally to employees. 33 Konrad is, in our view, readily distinguishable. 34 First, unlike Div 3 of Pt VIA of the IR Act, which was considered in Konrad, the FW Act contains definitions of both "employer" and "employee". The "ordinary meanings" of "employee" and "employer" are rooted in the common law. The ordinary meaning referred to must be the ordinary legal meaning as distinct from one of more colloquial context. The terms refer to parties to a contract of service or employment: see, for example, Hollis v Vabu Pty Ltd (2001) 207 CLR 21. Parliament could have, but did not, incorporate into Pt 6-4 a provision such as s 170CB of the IR Act. Instead, s 770 was included. Given that the draftsperson would have been aware of the Court's decision in Konrad, the adoption of a narrower definition is significant. That narrow definition may not extend to some or all police officers. So much is implicit in s 30E(1) of the FW Act which provides for an expanded definition of "employee": A reference in this Act to an employee with its ordinary meaning includes a reference to a law enforcement officer of a State that is a referring State because of this Division if the State's referral law so provides for the purpose of that law. 35 Such a provision would not have been required had police officers fallen within the "ordinary" meaning of "employee" for the purposes of ss 335, 770 and other like provisions. 36 While other formulations (such as "unwritten law" or "ordinary meaning at common law") might have been employed, it is clear, in the context of the FW Act, that "the ordinary meaning" is that comprehended by the common law. 37 Secondly, Pt 3-1 of the FW Act (in which ss 335, 342 and 351 appear) does not depend for its constitutional support on the external affairs power in s 51(xxix) of the Constitution. Rather, it depends substantially on s 51(xx) -- the corporations power: see New South Wales v Commonwealth (2006) 229 CLR 1 and s 338 of the FW Act. As a result there is no occasion to accord the terms "employee" and "employer" a broader meaning than that which they bear at common law in order to accommodate Australia's compliance with international obligations. 38 Thirdly, the relevant police legislation in Victoria did not contain a provision equivalent to Regulation 117. Regulation 117 removes any scope for the contention that some form of contractual relationship exists between officers and enlisted personnel of the Defence Force and the Crown in right of the Commonwealth. 39 Fourthly, in any event, the comments in Konrad about the armed forces were obiter.

Contextual matters 40 The established rules of statutory construction are to be applied. They were authoritatively restated by the High Court in Federal Commissioner of Taxation v Consolidated Media Holdings Limited (2012) 250 CLR 503 at 519: 'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text'. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself. 41 It is, therefore, necessary to examine the FW Act and the Regulations with a view to determining whether the text of the relevant provisions, read in the context in which they appear, displaces the previously established norm that enlisted members of the Defence Force are not employees of the Commonwealth. Having undertaken such an examination we are not persuaded that any such change has been effected by the relevant provisions of the FW Act or the Regulations. On the contrary, they combine to maintain the long established position. 42 Any examination of the current legislation with a view to determining whether any modification of the common law position has been effected must take account of the historical context. As Dixon J said in Welsh (at 268): The relation to the Crown of members of the armed forces is no new subject; the rules of the common law define it. The regulations are not to be read in disregard of those rules and of the long tradition to which they have contributed. See also: Marks v The Commonwealth (1964) 111 CLR 549 at 573 (Windeyer J). 43 During the life of the Defence Act 1903 (Cth) the provisions of the Regulations and their predecessors have become progressively more prescriptive in dealing with the terms and conditions on which members of the Defence Force serve. Service at pleasure has, for example, been replaced by termination for cause. Wage rates, leave entitlements and allowances are prescribed by the Defence Force Remuneration Tribunal under Part IIIA of the Act. A consequence of these developments is, as McHugh J held in Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 at 459, that "when a prerogative power of the Executive Government is directly regulated by statute, the Executive can no longer rely on the prerogative power but must act in accordance with the statutory regime laid down by the Parliament". See also Jarratt v Commissioner of Police for New South Wales (2005) 224 CLR 44 at 70. 44 In Coutts v Commonwealth of Australia (1985) 157 CLR 91 ("Coutts") an Air Force officer whose service had been terminated on medical grounds challenged the lawfulness of his termination. 45 The then operative Air Force Regulations included Reg 32, which provided that "the appointment or promotion of an officer under these Regulations shall not create a civil contract between the Crown or the Commonwealth and the officer". Regulation 72(1) provided that an officer held his appointment during the pleasure of the Governor-General but that an officer's commission could not be cancelled "except for cause and after he has had notice in writing of any complaint or charge made, and of any action proposed to be taken against him and has been given the opportunity of making such statement as he thinks fit regarding the cause". 46 The majority of the Court in Coutts (Wilson, Brennan and Dawson JJ) held that an officer could be dismissed under Reg 72(1) in the exercise of the Governor-General's pleasure. As Brennan J put it (at 105) "the power to dismiss may be exercised at any time and for any reason, or for no reason or for a mistaken reason". 47 Regulation 72(1) has since been repealed. The provisions of Reg 32, however, have been continued and now appear in Reg 117. Regulation 117 denies the existence of any contractual arrangement between a member of the Defence Force and the Crown in right of the Commonwealth and confirms that this incident of service enlistment continues to apply. 48 In Coutts, at 120, Dawson J explained the position as follows: Military service (and I use that term to embrace the three services) has always stood in a different position from service under a contract of employment with a private employer. As Windeyer J pointed out in Commissioner for Railways (NSW) v Scott ((1959) 102 CLR 392 at 441-2), officers serve in accordance with their commissions and other members in accordance with their engagements. In the absence of statute, it is the prerogative power which supports the relationship between members of the armed forces and the Crown and it is a concomitant of that relationship that none of them has at common law any right of action against the Crown for breach of contract or any right to sue for pay. The relationship is not a contractual one. However, in Marks v The Commonwealth ((1964) 111 CLR 549 at p 564) Windeyer J also pointed to the fact that in Australia the position of the Crown in relation to the forces is dependent upon statute and not the prerogative and, that being so, the inquiry turns to whether the relevant statute law, which in this case is the regulations, adopts, modifies or abrogates the common law positon. (Emphasis added). See also Wilson J at 98-101 and Deane J at 110 where his Honour held that the appointment of the Air Force officer involved was "statutory and not contractual". 49 In Millar v Bornholt (2009) 177 FCR 67 at 87 Logan J gave consideration to the manner in which provisions such as Reg 87 have modified the legal regime of enlistment at the pleasure of the Crown pursuant to prerogative power. His Honour said: In a sense, the Defence (Personnel) Regulations do significantly modify the common law, for the provision they make for termination of the service of an enlisted member of the Defence Force exhausts, rather than supplements, the common law: see reg 87(5), Defence (Personnel) Regulations. However, once it is appreciated that the giving of a prior "show cause" notice is not compulsory (in reg 87(2), which provides for the giving of a "termination notice", the word "may", rather than "must" is used, connoting, in context, and especially having regard to the contingencies that might arise making the step either impractical or even impossible, that the giving of such a notice is not compulsory) and that a Service Chief such as the Chief of Army may terminate the service of an enlisted member for reasons as ephemeral as that which formed the basis of CPL Millar's termination or that "the retention of the enlisted member is not in the interest of Australia; or the Defence Force; or the Chief's Service" (reg 87(1)(g), Defence (Personnel) Regulations), the heritage of the common law remains evident. 50 Despite these developments, one essential element of the former common law arrangements has been preserved by statutory prescription. As Logan J reaffirmed in Millar (at 87) the relationship between the Crown and a member of the Defence Force has not been and is not founded on contract and is not that of employer and employee. 51 Counsel for C submitted that Pts 3-1 and 6-4 were properly to be regarded as being beneficial legislation and that, accordingly, a broad construction should be accorded to the definitions contained in ss 335 and 770. The same definitions, however, appear in other Parts of the FW Act which are not able to be characterised in this way: see, for example, Pt 5-1 and ss 574 and 596(4); Pt 6-3A and ss 768AB and 768AD. 52 Counsel also referred to the definitions of "national system employee" and "national system employer" in ss 13 and 14 of the FW Act. The evident purpose of these provisions is to extend the operation of the FW Act beyond the regulation of terms and conditions of employment of the employees of constitutional corporations and to do so by relying on additional heads of power such as the trade and commerce power and the territories power. These provisions do not assist in the construction of ss 335 and 770. 53 Counsel also placed some reliance on s 9(5) of the FW Act, which provides that Pt 6-4 "contains provisions to give effect, or further effect, to certain international agreements relating to termination of employment". They submitted that "further effect" would be given to Australia's international treaty obligations by treating police officers and members of the armed forces as now falling within the "ordinary" meaning of "employee". We do not consider that s 9(5) supports such an approach. It is a declaration that the provisions of Pt 6-4 operate in addition to other means adopted by Australian governments to honour the country's treaty obligations. Relevant measures may be found, for example, in parts of federal and state anti-discrimination legislation which deal with employment. Such legislation is specifically referred to in s 351(3) of the FW Act. It is also to be borne in mind that the definition in s 770 also applies (as has already been noted) to other Parts of the FW Act which do not have the beneficial purposes of Pt 6-4 and do not rely for their validity on the external affairs power: cf. s 6 of the FW Act. 54 Under present arrangements members of the Defence Force are not, by reason of their enlistment, party to any contract of service. They are not employees of the Commonwealth. 55 It follows that C was not, at relevant times, an "employee" to whom ss 342 and 351 of the FW Act applied.

SUMMARY JUDGMENT 56 Both the Federal Circuit Court and this Court have power, under s 17A of the FCCA Act and s 31A of the FCA Act respectively, to give judgment for a respondent if the Court is satisfied that the applicant "has no reasonable prospect of successfully prosecuting the proceeding …". Complementary powers are also to be found in the Rules of both courts: see r 13.10(a) of the FCC Rules and r 26.01(1)(a) of the FCR. 57 In Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited (2008) 167 FCR 372, Gordon J noted (at 406) that s 31A was introduced in order to extend "the power of the court to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases". Even so, the power is to be exercised cautiously: Spencer v The Commonwealth (2010) 241 CLR 118 at 141. 58 As both sections expressly provide, an applicant may have "no reasonable prospect of successfully prosecuting [a] proceeding" even if the application cannot be characterised as either hopeless or bound to fail. These provisions, as Lindgren J held in White Industries Australia Limited v Federal Commissioner of Taxation (2007) 160 FCR 298 at 310, were designed "to lower the bar for obtaining summary judgment" from the level that had been fixed by the High Court in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91-92 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-30. In determining whether the claim has "no reasonable prospect" of success weight must be given to the expression as a whole and expressions such as "untenable" or "groundless", whether or not used in conjunction with "intensifying epithets" such as "clearly" or "manifestly" should not be adopted as substitutes for the statutory language: Spencer at 141. 59 The Court is required to apply its rules in a way that best promotes the overarching purpose of justly resolving disputes according to law as quickly, inexpensively and efficiently as possible: see s 37M of the FCA Act. In circumstances in which, as a matter of law, an applicant lacks the necessary status or standing to commence or prosecute a particular proceeding that person's application for relief can have no reasonable prospect of success. That is the position here. The parties should not be forced to incur the costs of preparing for and conducting what is likely to be a lengthy trial. 60 The Commonwealth's summary judgment application should be granted.

THE APPLICATION TO AMEND 61 The applicant abandoned his foreshadowed application for leave to amend his application so that he could commence proceedings under Pt 6-4 of the FW Act. He was correct to do so. 62 As already noted, s 772(1)(f), which appears in that Part, proscribes the termination of an employee's employment by reason of the physical disability of the employee. Unlike Pt 3-1 , Pt 6-4 relies for its efficacy on the external affairs power in seeking to give effect to provisions of International Labour Organisation Conventions to which Australia is a signatory. 63 Ordinarily, leave to amend would be granted and a strike-out refused if an applicant was able to demonstrate at such an early stage of a proceeding that he or she had an alternative and viable basis for pursuing the relief being sought. This, however, is not such a case. 64 That is because the proposed amendment would not, if allowed, afford C a viable cause of action. 65 The definitions of "employee" and "employer" are the same in Pt 6-4 as they are in Pt 3-1: see s 770. What has already been said in relation to the effect of s 335, therefore, applies with equal force to the meaning and application of s 772 and other provisions of Pt 6-4 in which the terms are used. 66 Section 772(1) of the FW Act renders it unlawful for an employer to terminate an employee's employment for a proscribed reason. One such reason is the employee's physical disability. Section 773 provides that an employee who alleges a contravention of s 772(1) may apply to the Fair Work Commission ("Commission") for it to deal with the dispute. Section 776(1) requires the Commission to deal with the dispute. The section contemplates that any such dispute will be dealt with in private conference: see s 776(2). If, having attempted to resolve the dispute, the Commission is satisfied that all reasonable attempts to resolve it (other than by arbitration) have been, or are likely to be, unsuccessful, it is required to issue a certificate to that effect: see s 776(3)(a). Once such a certificate has been issued, the employee has the option of making an "unlawful termination court application" for remedial orders under Div 2 of Pt 4-1 of the FW Act. No such application can, however, be made unless and until the Commission has issued a certificate under s 776(3)(a): see s 778. In the present case no application has been made to the Commission under s 773 and no certificate has been issued under s 776(3)(a). While we express no concluded view on the matter, we are of the opinion that these circumstances are likely to have presented an additional hurdle for C which he may not have been able to overcome.

DISPOSITION 67 Judgment should be entered for the Commonwealth. 68 The Commonwealth did not contend that any of the exceptions to the general rule contained in s 570(1) of the FW Act applied. There should be no order as to costs. I certify that the preceding sixty eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tracey, Buchanan and Katzmann.