CEPU v Active Tree Services Pty Ltd [2011] FMCA 535

1. On 30 September 2010 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) brought an application under the Fair Work Act 2009 naming Active Tree Services Pty Ltd, ABN 56 002 919 299 as the respondent. The orders that were sought in that application were contained in the claim under the Fair Work Act 2009 which was filed along with the application. The remedy that was sought in relation to three members of the Union, Mark Smith, Wade Baldwin and Carl Cairns, were all pursuant to the provisions of section 545(2)(b) of the Fair Work Act. In relation to each of those members of the union, an amount of compensation was sought equivalent to one year's loss of income.
2. The application was supported as required by the legislation by a certificate under section 369 of the Fair Work Act 2009. The certificate, under the hand of Senior Deputy President Richards, was dated

16 September 2010 and was in these terms: * An application pursuant to s.365 of the Fair Work Act 2009 ("the Act") was made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia alleging four of its members (Carl Cairns, Mark Smith, Wade Baldwin and Tim Wagstaff) were dismissed by Active Tree Services Pty Ltd in contravention of Part 3-1 of the Act. * Fair Work Australia conducted a conference to deal with the dispute on 9 September 2010. * Pursuant to s.369 of the Act, fair Work Australia certifies that it is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful. 3. An order was made on the first occasion that this matter came before the court on 27 October 2010, which at that time provided the applicant with the opportunity to file and serve an amended application and statement of claim, together with a list of documents. 4. An amended application and a claim under the Fair Work Act 2009 was filed on 9 November 2010 which was of course a few days after the time provided pursuant to the orders of Burnett FM, but no objection has been taken in that regard. I am unaware whether there may have been delay in the filing within the registry but note that the amended claim is dated 5 November 2010 and is under the hand of an authorised representative, for the applicant union. 5. The amended claim adds some additional information to that which is set out in Part G of the original claim under the Fair Work Act 2009, alleging dismissal in contravention of a general protection. It appears that no contention arises in relation to those particular aspects of the matter and in fact the proceedings had been listed for a hearing to proceed before this court, on 24 June 2011. However, the legal representatives for both the applicant and the respondent approached the court by way of correspondence on 10 June 2011 and indicated that a jurisdictional point had arisen in relation to the jurisdiction of the court to hear and determine the application, at least insofar as it concerned matters referred to in paragraphs 15 to 24 of the amended claim. By agreement, the jurisdictional point was heard on 24 June 2011 and the substantive matter was in fact adjourned to a date to be fixed. 6. The thrust of the argument in relation to this matter relates to the issue of the certificate pursuant to section 369 of the Fair Work Act.

The certificate follows on from the holding of a conference which is provided for pursuant to the provisions of section 368 of the Fair Work Act. Section 365 is in these terms: * 365 Application for FWA to deal with a dispute * If: * (a) a person has been dismissed; and * (b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part; * the person, or the industrial association, may apply to FWA for FWA to deal with the dispute. 7. Section 365 provides specifically that where a person has been dismissed, they may apply to Fair Work Australia to deal with the dispute between the person dismissed, or an industrial association entitled to represent the industrial interests of a person dismissed, and the employer. 8. If there is a dispute, and it is conceded that that is the case, then the legislation requires that a conference be conducted, pursuant to the provisions of section 368 of the Act. Section 368 is in these terms: * 368 Conferences * (1) If an application is made under section 365, FWA must conduct a conference to deal with the dispute. * Note 1: For conferences, see section 592. * Note 2: FWA may deal with a dispute by medication or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that FWA might make is that an application be made under Part 3-2 (which deals with unfair dismissal) in relation to the dispute. * (2) Despite subsection 592(3), FWA must conduct the conference in private. 9. It is noteworthy that both subsections 1 and 2 provide a mandatory requirement with regard to the conduct of a conference to deal with the dispute. The word "must" is included in both subsection 1 and subsection 2, and again it is not an issue in relation to this matter, because such a conference was held and Senior Deputy President Richards on 16 September 2010 issued a certificate. 10. Section 369 of the legislation provides for the certificate to issue in relation to proceedings and is in these terms: * 369 Certificate if dispute not resolved * If FWA is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, FWA must issue a certificate to that effect. 11. There are really only two alternatives following the conduct of a conciliation conference. Either the matter is resolved between the parties, in which case no further step is necessary in relation to the proceedings, or a certificate issues which is the precursor to the bringing of proceedings before the court. If a certificate issues pursuant to the conduct of a conciliation conference which is not able to resolve the issues in dispute between the parties, then it is necessarily required to be produced, prior to the initiation of an application. 12. Section 371 headed "General protections court applications" is in these terms: * 371 General protections court applications * FWA conference to be held before application * (1) A person who is entitled to apply under section 365 to FWA for FWA to deal with a dispute must not make a general protections court application in relation to the dispute unless: * (a) FWA has issued a certificate under section 369 in relation to the dispute; or * (b) the general protections court application includes a n application for an interim injunction.

Time for application

• (2) Despite section 544, a general protections court application that requires a certificate under section 369 must be made within 14 days after the certificate is issued, or within such period as a court allows on an application made during or after those 14 days.
  • Note: In Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.".

1. The dispute here relates specifically to the provisions of subsection 1, "...a person entitled to apply under section 365 to Fair Work Australia for Fair Work Australia to deal with a dispute must not make a general protections court application in relation to the dispute unless (a) Fair Work Australia has issued a certificate under section 369 in relation to the dispute". Subsection 1(b) is not relevant in relation to this application.
2. The issue here is whether in fact those matters which are now sought to be relied upon in the application pursuant to paragraphs 15 to 24 as detailed in the amended claim under the Fair Work Act have been the subject of a conciliation conference.
3. It is argued on the part of the respondent, that there is, as was described by counsel for the respondent, a "plain, legislative mechanism", which provides a mandatory requirement in relation to the institution of proceedings, including particularly a general protections court application. It is argued that the basis for the issue of the certificate is clearly enunciated in any application that is made to Fair Work Australia prior to the conduct of the conciliation conference.
4. The position taken in relation to this matter by the respondent therefore is to say that, as those matters specifically delineated in paragraphs 15 to 24 of the amended claim are not specifically set out in the application originally brought to Fair Work Australia, that there is no basis upon which the certificate could issue in relation to these proceedings, it being the case that section 369 requires that Fair Work Australia only issue a certificate, if it is satisfied that all reasonable attempts to resolve "the dispute", have been or are likely to be, unsuccessful.
5. From the perspective of the applicants it is contended simply that the bringing of the application and the detailing of the dispute is the mandatory requirement and that thereafter, as is not uncommon in any process of litigation, that there may be variations, amendments, additions and alternatives pleaded in respect of relief sought, and that therefore the requirement is simply that there be, "a dispute", rather than a specifically delineated dispute in relation to the proceedings.
6. I commented during the submissions made in relation to this matter that it was interesting that counsel for both the respondent, arguing the jurisdictional point, and for the applicant, disputing any suggestion of a jurisdictional point, both relied heavily upon the wording of the legislation.
7. Counsel for the applicant in fact indicated, that it would be perverse to require that at the very commencement of the litigation process, or in fact even prior to them bringing of any application before this court, there was a requirement for there to be full enunciation of each and every point that might be the subject of a claim. It was submitted that the conciliation conference is simply a step along the legislative path toward the bringing of the application and it is a means to attempt resolution of the dispute, but if unsuccessful, then the proceedings are commenced and they are dealt with in what might be called, the normal way.
8. The perversity, it was argued that would arise if there was required to be a clear enunciation of the areas of dispute, arose from the fact that there are strict time limits put in place and it may simply be the case that an applicant does not know the nature or full extent of the claim until such proceedings had been brought, and perhaps disclosure or discovery leads to the provision of further information.
9. There is, I must say, some legitimacy in that suggestion, but just as clearly there is a very real expectation contained within the legislation for Fair Work Australia through the conciliation conference process established under the provisions of section 368 of the Act to require that Fair Work Australia conduct a conference, "to deal with the dispute".
10. It is argued therefore on the part of the respondent here, that there is a specific requirement for the dispute to be fully enunciated and, whilst there may be other issues that perhaps arise during the conduct of mediation and that is not something that would directly be relayed to the court, that the issue of the certificate relates to the attempts to resolve "the dispute", and the dispute is exactly what is set out in the application, brought before Fair Work Australia.
11. An extreme, but I think explanatory position was taken in relation to these proceedings, in that it was suggested on the part of the respondents, that if the basis for the bringing of the application related to something as obtuse as a suggestion of the employer not liking the colour of the employee's eyes, then that would not be a basis upon which there could properly be an application brought. It would therefore, it was suggested, significantly affect the manner in which a mediation or conciliation process was able to be dealt with.
12. For example, it was suggested that if the employer was of the view that the position taken, and as outlined in the application brought to Fair Work Australia, was one without legal or evidentiary merit, then a very, "hard line" approach might be taken in relation to such an application, with little or no prospect whatsoever of resolution.
13. It was submitted then, that if the certificate issued in relation to only such a restricted matter, and only subsequently was an application made, pursuant to the legislative framework to the court, which detailed a number of other bases upon which it is suggested that there was contravention, then that would have had a direct effect upon the conduct of the conciliation conference.
14. I must say that that also has some appeal, though in this instance the position is somewhat different, in that it appears conceded, though there is little information understandably provided, that the reference to the "matrix", which was used by the respondent to select the employees to be made redundant, was the subject of some discussion at least during the conciliation conference.
15. It is conceded by the applicant, however, that whilst reference was made to this "matrix table", it was not actually disclosed in any real or comprehensive form by the respondent to the applicant, nor in fact was a copy of the matrix table made available in relation to the proceedings.
16. From the applicant's perspective, therefore, it is suggested that this is not a new matter, and more particularly it is clearly understood, at least they say from their perspective, that the certificate which was issued by Fair Work Australia, following the conciliation conference, related to the attempts to resolve the dispute between the parties, including not only those matters which were delineated in the application brought before Fair Work Australia, but also those matters which were the subject of negotiation at the conciliation conference.
17. The distinction is clear and it is submitted on the part of the applicants that it is not a new point or a matter which has arisen subsequent to the issue of the certificate, but rather is a matter which was the subject of negotiation, with the assistance of the Senior Deputy President, rather than a matter which was simply new and which had never therefore been communicated to the respondent, nor had there been any opportunity for the respondent to consider it as part of the dispute.
18. If that were the case then the position taken by the respondent in relation to the matter, in other words that a new head of claim had been included subsequent to the conduct of the conciliation conference and the issue of the certificate, one would have thought that the position taken by the respondent in relation to the argument relating to jurisdiction, would have been an unanswerable one.
19. But there is a different perspective to consider in the matter, in light of the fact that it appears clearly to be acknowledged that, at least to some degree, this issue of a "matrix table" was the subject of discussion, at the conciliation conference.
20. It may have been the case that that was discussed, but I must say that I have some concerns as to whether the certificate sought to be relied upon, relates to all matters, including those which may have been the subject of negotiation or discussion at the conciliation conference, or relates only to those matters which are the subject of the dispute, as detailed in the application brought before Fair Work Australia.
21. In the end, I have come to the decision that there is a requirement for there to be as full as possible particularity, in relation to the nature of the dispute, before the conduct of the conciliation conference is able to be considered. It was submitted to me that there is a "jurisdictional prerequisite for the commencement of the process, pursuant to section 365 of the Fair Work Act" and that is that "the dispute", referred to Fair Work Australia, can only be "the dispute", as alleged in the application made to Fair Work Australia.
22. It is clear that the use of the term "dispute" in each of the sections of the Act to which I have referred, section 365, section 368, section 369 and section 371, are one and the same dispute and not one which is simply a developing area of complaint or concern, following through from the negotiating process.
23. To consider otherwise is in my view a recipe for disaster, because it is clear that the assistance required from Fair Work Australia, in relation to the conciliation process, relates to as full as possible disclosure of the issues of the dispute and enunciation of the basis upon which an applicant seeks to bring the claim.
24. Accordingly, I have come to the determination that the only appropriate course in relation to this matter is to order, as sought on the part of the respondent, that the application in respect of the matter set out in paragraphs 15 to 24 of the amended claim under the Fair Work Act 2009, should be dismissed as at this time, being beyond the jurisdiction of the court to hear and determine the matter, but also to note, that it is properly contemplated that an application would be further made to Fair Work Australia to specifically deal with the issues in dispute, as delineated in paragraphs 15 to 24 of the amended claim under the Fair Work Act, and that it would be anticipated that in the circumstances of this particular matter, that the appropriate concession would be given with regard to an extension of time to bring any such proceedings.
25. It would then be, unless otherwise able to be resolved, appropriate for the two applications to be consolidated and heard as one, it being clear that if the matter is not able to be resolved, that the evidentiary basis upon which the current claim and any future claim may be made, would be of a similar, if not identical nature.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Coker FM