Clermont Coal Pty Ltd v Brown

REASONS FOR JUDGMENT JESSUP J 1 In the application which is before the court, the applicant, Clermont Coal Pty Ltd, seeks a declaration that, upon the proper construction of subs 389(2) of the Fair Work Act 2009 (Cth) ("the FW Act"), the provision does not permit a consideration by the Fair Work Commission ("the Commission") of whether it is reasonable for a retrenched employee to be re-engaged in a role that is undertaken by a contractor. 2 The application is made against the background of proceedings in the Commission pursuant to Pt 3-2 of the FW Act taken by the six individual respondents to the application, in consequence of the termination of their employments by the applicant. It is apparent from the written outlines of submissions which have been filed in this proceeding that the matters in contest in the Commission are confined to the question whether it would have been reasonable for any or all of the six respondents to be redeployed into a role that is presently undertaken by a contractor to the applicant or an associated entity within the meaning of s 389(2)(b). 3 The jurisdiction of the Commission arose under s 390 of the FW Act, subs (1) of which empowers the Commission to order a person's reinstatement, or the payment of compensation to a person, if the Commission is satisfied that the person was protected from unfair dismissal at the time of being dismissed, and that the person has been unfairly dismissed. The concepts of protection from unfair dismissal, and of unfair dismissal as such, are the subject of elaboration in Divs 2 and 3, respectively, of Pt 3-2 of the FW Act. 4 It is with Div 3 that the present case is concerned. Division 3 opens with s 385, which provides that a person has been unfairly dismissed if the Commission is satisfied that: (a) the person has been dismissed; and (b) the dismissal was harsh, unjust or unreasonable; and (c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and (d) the dismissal was not a case of genuine redundancy. It is to be noted in passing that the requirements of this section, including that set out in para (d), depend upon the Commission itself being satisfied of the state of affairs referred to. 5 What constitutes a genuine redundancy is the subject of s 389, subs (1) of which specifies two circumstances in which a person's dismissal is to be regarded as a case of genuine redundancy. We are not directly concerned with subs (1). Subsection (2) of s 389 provides as follows: A person's dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within: (a) the employer's enterprise; or (b) the enterprise of an associated entity of the employer. The expression "associated entity" picks up s 50AAA of the Corporations Act 2001 (Cth), and, on any view, is an expression of wide scope. 6 The other provision which should be mentioned at this point is s 396 of the FW Act, which provides as follows: The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application. (a) whether the application was made within the period required in subsection 394(2); (b) whether the person was protected from unfair dismissal; (c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; and (d) whether the dismissal was a case of genuine redundancy. 7 The respondents' applications under Part 3-2 of the FW Act are proceeding in the Commission. We were informed that the parties have presented their cases on those applications and that the Commission is presently reserved. A significant question - and, on the outlines which have been filed in this case, it may be conceded the single substantial question before the Commission - is whether the dismissal of the respondents were cases of genuine redundancy within the terms of s 389(2) of the FW Act. 8 It is against the background of these facts that the question arises whether the court should exercise the undoubted jurisdiction which it has to make a declaration in the form, and in the circumstances, sought by the applicant. 9 It is, in my view, helpful to state at the outset what this case is not. There is no suggestion by the applicant that the Commission does not have jurisdiction under s 390 to consider the question arising under s 389(2) of the FW Act. That is to say, there is no suggestion that it is not within the conventional role of the Commission, in the course of dealing with the six applications before it, to reach a conclusion on the very question which is the subject of the present application for a declaration. 10 There is no challenge in this proceeding to any particular order made by the Commission. There is no application before the court arising from a referral by the President of the Commission under s 608 of the FW Act. Neither is this a case in which the very fact that the Commission is proceeding gives rise to an inference that it is doing so in excess of its jurisdiction or on the basis of some untenable view of the law. 11 The position in which the court is asked to consider the making of a declaration, therefore, is one in which the question upon which the declaration is sought is four-square within the matters upon which the Commission must deliberate, and with reference to which it must make a determination. If that determination, if and when it is made, is claimed to be infected by some justiciable excess of jurisdiction or error of law that might be within the jurisdiction of this court, those are matters that will be addressed as and when they arise upon proper proceedings having been commenced. 12 However, in the view I take, this is not the stage at which the court ought to exercise its jurisdiction to make a declaration upon the meaning of s 389(2) as sought by the applicant. In my assessment of the matter, the present case is no more than an application by one party to a proceeding which is being conventionally conducted in the Commission for a ruling upon the meaning of a section of the FW Act in advance of the Commission itself having completed the task which is entrusted to it. 13 For those reasons, I would dismiss the application for a declaration. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.