Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Absolute Commissioning Group Pty Ltd

Federal Court of Australia|2024-11-19|Before: Katzmann J

Counsel for the Applicants: Mr D Mahendra

Solicitor for the Applicants: Hall Payne Lawyers

Solicitor for the First and Second Respondents: Ms L Schumacher of Barry Nilsson Lawyers

Solicitor for the Third Respondent: Corrs Chambers Westgarth

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA First Applicant BETWEEN: BENNETT SHOEMARK Second Applicant DEAN BRAZIER Third Applicant ABSOLUTE COMMISSIONING GROUP PTY LTD First Respondent AND: JOHN HITCHENS Second Respondent UGL ENGINEERING PTY LTD Third Respondent

order made by: KATZMANN J DATE OF ORDER: 19 NOVEMBER 2024

THE COURT ORDERS THAT:

Leave be granted to UGL Engineering Pty Ltd (UGL) to file and serve a defence by close of business on 3 December 2024.
Otherwise UGL's interlocutory application filed on 20 September 2024 (as amended on 11 November 2024) be dismissed.
Leave be granted to the applicants nunc pro tunc to file and serve their further amended originating application and statement of claim filed on 12 August 2024.
Leave be granted to the applicants to file and serve the second further amended originating application and the amended statement of claim annexed to the affidavit of Timothy Grellman affirmed on 28 October 2024. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT KATZMANN J:

Introduction

This proceeding arises out of a dispute about the termination of the employment of two employees of Absolute Commissioning Group Pty Ltd (trading as CoMade), a labour hire company, both of whom are members of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Union). The moving parties are the Union and the two employees, Messrs Shoemark and Brazier. The applicants contend that the dismissal amounted to adverse action in contravention of either ss 340 or 346 of the Fair Work Act 2009 (Cth) (FW Act).
When the originating application was filed, two respondents were named. They were CoMade and John Hitchens, its executive director. Two days later an amended originating application was filed. The original and amended originating applications included a claim for an interim injunction which, if granted, would have required Shoemark and Brazier to be reinstated to their employment and in the positions they held at the time they were dismissed. That claim was heard and dismissed by Thawley J, as duty judge, on 18 July 2024: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Absolute Commissioning Group Pty Ltd [2024] FCA 805. Although his Honour accepted that the applicants had made out a prima facie case, he was not satisfied that the balance of convenience favoured the grant of the relief they sought. That relief included reinstating Shoemark and Brazier to their employment and the positions they held with UGL Engineering Pty Ltd (UGL), a company which had engaged CoMade to provide labour for a construction project. His Honour observed at [94] that "the Court cannot properly make an order which would have the effect of requiring UGL to permit Mr Shoemark and Mr Brazier to return on site without first hearing from UGL".
This judgment is concerned with the subsequent action taken by the applicants to add UGL as a respondent to the proceeding.
The factual background to the present dispute is set out in Thawley J's judgment and need not be reproduced. It is sufficient to record the following matters. UGL engaged CoMade to provide certain electrical and instrumentation services in connection with a project for the construction of turbines in the Hunter Valley (Hunter Power Project), a project on which UGL was the principal contractor. Shoemark and Brazier were among some 30 electricians employed by CoMade who were supplied to UGL to work on the Hunter Power Project from 26 March 2024. About a week later Shoemark was elected as a CEPU delegate and health and safety representative. In evidence adduced before Thawley J, Shoemark stated that by early June he became very concerned about significant safety risks at the project and made various complaints about them to UGL representatives and Brazier became concerned for his own safety. Shoemark and Brazier were dismissed from CoMade's employ on 25 June, together with other employees of various sub-contractors, after they refused to perform work on the project. Shoemark and Brazier were among the names on a list UGL allegedly provided to CoMade of workers "that have to be removed from the project".
At the hearing of the application for the interim injunction, the respondents submitted that the effective decision to terminate the employment of Shoemark and Brazier was made by UGL and that decision frustrated their employment contracts. As Thawley J put it (at [73] of his reasons), the respondents' argument was that "[t]he action of CoMade in terminating the employment was simply the inevitable recognition and implementation of what it was instructed to do by UGL".
On 1 August 2024 the applicants filed an interlocutory application seeking an order under r 9.05 of the Federal Court Rules 2011 (Cth) (Rules) that UGL be joined as the third respondent to the proceeding (joinder application). At this point, no pleadings had been filed. The originating application had been supported by affidavits.
The applicants did not proceed with their joinder application. Rather, on 12 August 2024 they filed and served a further amended originating application and statement of claim naming UGL as the third respondent. The claims against UGL included, but were not confined to, claims that UGL was involved in the contraventions by CoMade. The applicants sought various declarations and orders, including an order that UGL pay pecuniary penalties for contraventions of an enterprise agreement to which it was not a party. The further amended originating application removed the claim for interim relief, presumably on the basis that it had been determined.
By an amended interlocutory application filed on 11 November 2024, UGL sought the following orders:
to the extent that the Court has purported to make any order granting leave to the applicants to join UGL as a party, that order be set aside or vacated;
alternatively, an order under r 9.08 of the Rules that UGL cease to be a party;
an order summarily dismissing the applicants' application for orders relating to alleged contraventions of Pt 3-1 of the FW Act;
an order summarily dismissing the proceeding against UGL in so far as the applicants seek the relief identified in para 10 of the further amended application (which contained the allegation that UGL contravened provisions of an enterprise agreement to which it was not a party); and
to the extent necessary, an order extending the time of the filing of a defence by UGL to a date 14 days after the determination of the present application. Proposed order (4) was not pressed after the applicants decided to withdraw the claim to which it related.
In short, UGL claimed that the Court lacks jurisdiction to entertain the applicants' claims against it because the applicants did not satisfy either of the conditions in s 370 of the FW Act.
The amended interlocutory application was supported by affidavits of Josephine Aldis and Thomas Sanders, both solicitors at Corrs Chambers Westgarth, the lawyers retained by UGL.
The applicants relied on an affidavit of Timothy Grellman, a solicitor employed by Hall Payne who act for the applicants. Mr Grellman's affidavit contains a chronology of the proceeding. Annexed to the affidavit, amongst other things, were a second further amended originating application, which removed the claim that UGL had contravened the enterprise agreement and refined the other claims against UGL, and a proposed amended statement of claim, which the applicants sought leave to file.

The claims against UGL

The relief sought against UGL in the second further amended originating application consists of the following declarations and orders:
declarations that, by reason of s 362 of the FW Act, UGL contravened s 340 of the Act by advising, encouraging or inciting CoMade to terminate the employment of Shoemark and Brazier (prayers 4 and 5);
declarations that UGL contravened ss 340 and 346 by refusing to make use of, or agreeing to make use of the services of Shoemark and Brazier (prayers 6 and 7);
declarations that, by reason of s 550 of the FW Act, UGL was involved in CoMade's contraventions of ss 340 and 346 by aiding and abetting and/or counselling and procuring and being otherwise directly or indirectly knowingly concerned in those contraventions and is taken to have contravened ss 346 and 340 (prayer 8);
orders for the imposition of pecuniary penalties for the contraventions of ss 340 and 346 (prayer 9);
an order that UGL (together with the other respondents) pay compensation to Shoemark and Brazier (prayer 13).
All the provisions mentioned above, except for s 550, appear in Pt 3-1 of the Act, entitled "General protections". Section 550 appears in Pt 4-1, which is concerned with civil remedies available in this Court and the Federal Circuit and Family Court (Div 2).
Section 340 relevantly prohibits the taking of "adverse action" by one person against another (a) because the first person has a workplace right, has or has not exercised a workplace right, or proposes or proposes not to exercise a workplace right or has at any time proposed, or not proposed, to do so; or (b) to prevent the exercise of a workplace right by the first person.
"Adverse action" is defined in s 342 in a table contained in sub-s(1). Items 1 and 3 are the only pertinent items. The effect of the definition in item 1 (insofar as it relates to the applicants' claims) is that an employer engages in adverse action against an employee if the employer dismisses the employee (item 1(a)). The effect of the definition in item 3 (insofar as it relates to the applicants' claims) is that a person (the principal) who has entered into a contract for services with an independent contractor engages in adverse action against a person employed by the independent contractor if the principal refuses to make use of, or agree to make use of, services offered by the independent contractor (see item 3(d)).
Sections 362 and 550 are deeming provisions the effect of which is to render accessories liable for contraventions as if it they had committed the contravening conduct themselves.
Section 362 provides: Advising, encouraging, inciting or coercing action (1) If: (a) for a particular reason (the first person's reason), a person advises, encourages or incites, or takes any action with intent to coerce, a second person to take action; and (b) the action, if taken by the second person for the first person's reason, would contravene a provision of this Part; the first person is taken to have contravened the provision. (2) Subsection (1) does not limit section 550.
Section 550 provides that a person who is involved in a contravention of a civil remedy provision (defined in s 539 to include s 340) is taken to have contravened that provision. It also defines the circumstances in which a person is involved. They are where that person has aided, abetted, counselled or procured the contravention; induced the contravention (whatever the means); in any way been knowingly concerned (directly or indirectly) in the contravention or party to it, whether by act or omission; or has conspired to bring about the contravention.

The legislative scheme for dealing with general protections disputes

Section 370 of the FW Act prohibits a person who is entitled to apply to the Fair Work Commission (FWC) to deal with a dispute from making a general protections court application in relation to the dispute in certain circumstances. A similar prohibition appears in s 778 of the Act (in Pt 6-2) in relation to "unlawful termination court applications". Section 370 provides: Taking a dismissal dispute to court A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless: (a) both of the following apply: (i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute; (ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or (b) the general protections court application includes an application for an interim injunction.
"General protections court application" is defined in s 368(4) as "an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of [Part 3-1]".
Section 365 is in the following terms: Application for the FWC to deal with a dismissal 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 the FWC for the FWC to deal with the dispute.
"Dismissed" is defined in the Dictionary contained in s 12 of the FW Act by reference to the definition in s 386. More particularly, it is defined in s 386(1), which is in the following terms: A person has been dismissed if: (a) the person's employment with his or her employer has been terminated on the employer's initiative; or (b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer. There are exceptions, contained in s 386(2), and an exception to the exception in s 386(3), but neither of these subsections is relevant here.
An application to the FWC must be made within 21 days of the dismissal: FW Act, s 366(1). The FWC has a discretion to allow additional time but only if it is satisfied that there are exceptional circumstances: FW Act, s 366(2).
Once an application is made under s 365, the FWC is required to "deal with the dispute (other than by arbitration)", that is by mediation or conciliation or by making a recommendation or expressing an opinion: FW Act, s 368(1). If the FWC is satisfied that all reasonable attempts to resolve the dispute in this way have been, or are likely to be, unsuccessful, it must issue a certificate to that effect and, if satisfied that arbitration or a general protections court application in relation to the dispute would not have reasonable prospects of success, it must advise the parties accordingly: FW Act, s 368(3).
If the parties agree and certain other conditions are satisfied, the FWC may deal with the dispute by arbitration: FW Act, s 369(1). It may make an order for reinstatement; an order for the payment of compensation; an order for the payment of an amount for lost remuneration; an order to maintain the continuity of employment; and/or an order to maintain the period of continuous service with the employer: FW Act, s 369(2).
The FW Act draws a distinction between "dismissal disputes" and "non-dismissal disputes". Sections 365-370 appear in Subdivision A of Div 8 of Pt 3-1 which is entitled "Contraventions involving dismissal". Subdivision B is entitled "Other contraventions". The lead provision is s 372. Section 372 provides: Application for the FWC to deal with a non-dismissal dispute If: (a) a person alleges a contravention of this Part; and (b) the person is not entitled to apply to the FWC under section 365 for the FWC to deal with the dispute; the person may apply to the FWC under this section for the FWC to deal with the dispute.
If an application is made under s 372 and the parties agree to participate, the FWC must conduct a (private) conference to deal with the dispute: FW Act, s 374. Notably there is no provision for the FWC to arbitrate a "non-dismissal dispute".
"Non-dismissal dispute" is not defined. In context, it can only refer to a dispute that is not a "dismissal dispute". "Dismissal disputes" cannot be taken to court unless the conditions in s 370 are made out. There is no such prohibition for "non-dismissal disputes".
The FWC may only deal with a dispute if it is expressly authorised to do so (s 595(1)) and may only deal with a dispute by arbitration (including by making any orders it considers appropriate) if expressly authorised to do so under, or in accordance with, a provision other than s 595 (s 595(3)).

The joinder of UGL

It is convenient to begin with the allegation that, insofar as they include claims against UGL, the further amended originating application and statement of claim could not have been filed without an order from the Court permitting UGL to be joined.
The applicants made no submissions on this question.
Rule 9.05 enables an applicant to apply to the Court for an order that a person be joined as a respondent and, amongst other rules, r 1.40 enables the Court to make such an order. Rule 9.05(1) provides that a party may apply to the Court for an order that a person be joined as a party to a proceeding if the person should have been joined or is a person who should be joined as a party in order to enable determination of a related dispute and, as a result, avoid multiplicity of proceedings. Rule 9.05(3) provides that, if a person is joined as a party under this rule, the start date of the proceeding for that person is the date on which the order is made.
Rule 9.02(1)(a) relevantly provides that two or more persons may be joined as respondents in any proceeding if separate proceedings against each of them would give rise to a common question of fact. While r 9.02(1)(c) also permits a person to be joined by leave of the Court (before or after the originating application is filed, as r 9.02(2) makes explicit), it is in the alternative to (a) and, for that matter, (b). The Explanatory Statement to the Federal Court Legislation Amendment Rules 2022 (Cth), which inserted the rule in its current form, confirms that the literal meaning was the intended meaning. It states that the replacement rule "clarifies how two or more persons may be joined as applicants or respondents in certain proceedings or by leave of the Court either before or after an originating application is filed" (emphasis added).
Although r 9.02(1) suggests that a party may be joined as a respondent without a court order, when r 9.02(1) is read in context, I am persuaded that the ability to join a person without a court order only applies before a proceeding is commenced. That is because r 8.21 provides that an applicant may apply to the Court for leave to amend an originating application for any reason, including, to avoid a multiplicity of proceedings. While there is no rule which expressly requires that an order be made adding a party to a proceeding, it seems to me that the intention of the Rules is that, where a party wishes to add another party, whether as an applicant or a respondent, an order to that effect must be made.
For this reason I am satisfied that the inclusion of UGL in the further amended originating application and statement of claim was not effective to join the company to the proceeding.
However, UGL did not contend that the filing of the further amended originating application and statement of claim was a nullity. It claimed it was an irregularity, citing Johnston v Vintage Developments Pty Ltd [2006] FCAFC 171 (Tamberlin, Jacobson and Rares JJ). Rule 9.07(a) provides that a proceeding will not be defeated only because a party has been improperly joined and s 51(1) of the Federal Court of Australia Act 1976 (Cth) provides that no proceedings in the Court are invalidated by an irregularity (or a formal defect) unless it causes substantial injustice which cannot be remedied by a Court order.
In Johnston the primary judge granted leave to join Mr Johnston as a respondent after the limitation period for the cause of action pleaded against him had expired. In the appeal Mr Johnston submitted that leave should have been refused because the motion to have him joined was only filed after the expiry of the limitation period and no leave had been granted before then either for his joinder or for the pleadings to be amended so as to raise a cause of action against him. The "essential issue" on the appeal, as the Full Court put it at [12], was whether the Court could, by order, cure the want of a grant of leave to join Mr Johnston or to amend the application and further amended statement of claim before the expiry of the limitation period. The Full Court declined to make such an order. Instead, it substituted for the order made by the primary judge an order granting the applicants leave nunc pro tunc to file and serve an amended application and further amended statement of claim, which had been accepted for filing. In doing so, it followed the approach taken by the Full Court (Burchett, Ryan and Marshall JJ) in Crayford Freight Services Ltd v Coral Seatel Navigation Co (1998) 82 FCR 328 which held at 334 that "an irregularity or formal defect in relation to a step taken in prosecution of a controversy justiciable by the Court may be remedied".
In Johnston at [25], the Full Court said that "[t]he rules contemplate … that leave to join a party can be granted after the applicant has filed in the Court an amended pleading which in fact joins the party". The Full Court was speaking of the former rules, Federal Court Rules 1979 (Cth), in particular O6 r 4. The Court continued: The rule contemplates, in effect, that the Court can confirm the prior acts of the parties in presenting, and of the registry of the Court in accepting, a document, by making an order granting leave to have done so after the actual joinder has taken place. Likewise, under these procedural provisions, the Court can refuse leave, thereby setting aside the prior joinder. But unless and until the filing of the document is set aside it has an operative effect, albeit subject to the possibility of disallowance under the rules.
As O6 r4 is now incorporated in r 9.02(2) of the current Rules, the Full Court's remarks apply equally here.
In the present case, although the applicants did not move on their interlocutory application, the Court can make an order joining UGL of its own motion under r 1.40. For the above reasons I consider that such an order should be made.
The next question is whether the irregularity caused UGL substantial injustice which could not be remedied by a Court order. UGL made no such submission. Rather, UGL argued that the applicants' conduct had deprived it of the benefit of the processes available in the FWC.
In any event, I am not satisfied that the applicants' conduct amounts to substantial injustice of the requisite kind, not least because of the availability of mediation in this Court (at no cost), together with other forms of alternative dispute resolution, but also, as I explain below, because, had UGL been named as a party when the originating application was filed, it would have been in no different position. Thus, provided I am satisfied that the Court has jurisdiction to hear and determine the applicants' claims against UGL I would make an order nunc pro tunc joining UGL to the proceeding.

The question of jurisdiction

This question turns on the meaning and scope of ss 365 and 370. Its resolution is to be reached by the application of the established principles of statutory construction. UGL correctly submitted, citing Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ), that that task begins and ends with a consideration of the statutory text. As the High Court went on to say in that same paragraph, however, the text must be read in context. Context includes the legislative history which may shed light on the legislative purpose. And context must be considered "in the first instance, not merely at some later stage when ambiguity might be thought to arise": CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ). Context includes the statutory context: SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ). Furthermore, the meaning of the provision must be determined by reference to the language of the statute "viewed as a whole". A statute must be construed "on the prima facie basis that its provisions are intended to give effect to harmonious goals". See Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]‑[70] (McHugh, Gummow, Kirby and Hayne JJ). Where different interpretations are available, the interpretation that would best achieve the purpose or object of the Act, whether or not that purpose is expressly stated in the Act, is to be preferred to every other interpretation: Acts Interpretation Act 1901 (Cth), s 15AA.

The scope of the dispute

There is no dispute that the applicants' application is a general protections court application and that the applicants were or are entitled to apply to the FWC under s 365 of the FW Act. And it is common ground that no certificate was issued by the FWC. UGL argued that, since the FWC did not issue a certificate and the further amended originating application did not include an application for interim injunction, the Court has no jurisdiction to hear the applicants' case against it.
The applicants contended that their "primary claim" for relief against UGL is that it contravened s 340 by refusing to make use of, or agreeing to use, the services of Shoemark and Brazier and, since that claim does not concern a dismissal, they were or are not entitled to apply under s 365 for the FWC to deal with such a dispute. They accepted that their claims for relief, on the basis of UGL's alleged involvement in the adverse action taken by CoMade, must satisfy either of the conditions in s 370, but they contended that they satisfy the condition in para (b) in that the originating application they filed in July against CoMade and Mr Hitchens included a claim for an interim injunction. They submitted that it is irrelevant that that claim did not seek relief against UGL because the only relevant issue is whether the Court has jurisdiction to deal with the (dismissal) dispute. They asserted that they were unaware of the level of UGL's involvement or conduct until CoMade filed its evidence in opposition to the application for interim relief, an assertion which UGL disputes. They argued that "it would constitute a perverse reading of s 370" to effectively prevent an applicant from including matters in court proceedings that were not the subject of a conciliation or an interlocutory hearing in circumstances in which the applicant is unaware of such matters. Accordingly, they asked that the Court dismiss UGL's application and grant them leave to file and serve the second amended originating application and the amended statement of claim.
UGL submitted that where a person is entitled to apply under s 365 for the FWC to deal with a dispute, the effect of s 370 is that satisfaction of either para (a) or para (b) is "an essential condition to the Court's jurisdiction" to hear a general protections court application, citing Gao v Tin (Staffing Services) Pty Ltd [2020] FCA 453 at [21] (Steward J). That is unquestionably correct in relation to a dismissal dispute. UGL argued that it extends to both the applicants' claims, however, relying on Kelly v Corporation of the Synod of the Diocese of Brisbane [2023] FCA 829 at [29]-[33]. It submitted that the provisions of Subdivision A are at least in part "for the benefit of respondents" to general protection claims.

The scope and operation of s 370

I was not taken to the legislative history or any extrinsic material. Even if the legislative history or extrinsic materials do not assist, the statutory context does. A proper understanding of the scope and operation of s 370 can only be obtained when the section is read in its broader context by reference to the scheme the Act erects for the FWC to deal with all disputes concerning alleged contraventions of Pt 3-1.

The entitlement to apply under s 365

In Kelly at [31] Logan J accepted a submission to the effect that where, in a statement of claim supporting an application before the Court, a person alleges a contravention of Pt 3-1 which relates to conduct "fall[ing] short of a dismissal", the application is still a "general protections court application" because it is an application to a court under Div 2 of Pt 4-1 for orders in relation to a contravention of Pt 3-1 and therefore s 370 applies.
Judicial comity requires that I should follow Logan J in Kelly unless I am of the opinion that his Honour was plainly wrong. The applicants accepted as much. As French J explained in Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [75], it is well established that a judge of this Court should follow a decision of another judge unless of the view that it is plainly wrong. His Honour cited a number of authorities for the proposition including the following remarks of Burchett J in La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204: The doctrine of stare decisis does not, of course, compel the conclusion that a judge must always follow a decision of another judge of the same court. Even a decision of a single justice of the High Court exercising original jurisdiction, while 'deserving of the closest and respectful consideration', does not make that demand upon a judge of this court: Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 504. But the practice in England, and I think also in Australia, is that 'a judge of first instance will as a matter of judicial comity usually follow the decision of another judge of first instance [scil of coordinate jurisdiction] unless he is convinced that the judgment was wrong': Halsbury, 4th ed, vol 26, para 580. The word 'usually' indicates that the approach required is a flexible one, and the authorities illustrate that its application may be influenced, either towards or away from an acceptance of the earlier decision, by circumstances so various as to be difficult to comprehend within a single concise formulation of principle. …
In Hicks at [76] French J explained: The injunction to judicial comity does not merely advance mutual politeness as between judges of the same or co-ordinate jurisdictions. It tends also to uphold the authority of the courts and confidence in the law by the value it places upon consistency in judicial decision-making and mutual respect between judges. And where questions of law, and statutory construction, are concerned the proposition that a judge who has taken one view of the law or a statute is 'clearly wrong' is one not lightly to be advanced having regard to the choices that so often confront the courts particularly in the area of statutory construction. …
With the greatest respect, I am of the opinion that the conclusion Logan J reached in Kelly concerning this aspect of the operation of s 370 was plainly wrong. It appears that his Honour overlooked some important matters of context which require a different conclusion, presumably because they were not drawn to his attention.
As the heading to the section makes clear, s 370 is only concerned with dismissal disputes, that is, adverse action which takes the form of a dismissal, more particularly, disputes which fall within item 1 of the table in s 342. A person is only entitled to apply under s 365 for the FWC to deal with a dispute if the dispute is a "dismissal dispute" or, put another way, a dispute raised by an allegation that the person was dismissed in contravention of Pt 3-1.
The FW Act and Pt 3-1, in particular, draw a sharp distinction between a dismissal and a non‑dismissal dispute. Dismissal disputes are dealt with in Subdivision A, which contains ss 365-370. Non-dismissal disputes are the subject of Subdivision B, which contains ss 372-375. As I have already observed, a person is only entitled to apply under s 365 for the FWC to deal with a dismissal dispute. A person who alleges a contravention of Pt 3-1, which is not an allegation that they were dismissed in contravention of Pt 3-1, may only apply to the FWC under s 372 for it to deal with that dispute. And it is not a condition of making a general protections court application in relation to a non-dismissal dispute that the person making the allegation first obtains a certificate from the FWC or includes a claim for an interim injunction in their general protections court application. Further, while the time limit for making an application under s 365 for the FWC to deal with a dismissal dispute is 21 days, no time limit is imposed for the making of an application to the FWC under s 372 to deal with a non-dismissal dispute.
In addition, while the Act expressly authorises the FWC to deal with general protections disputes covered by Pt 3-1, the extent of its authority differs depending on whether the dispute is a dismissal or a non-dismissal dispute. The way in which the FWC may deal with a dismissal dispute is markedly different from the way it may deal with a non-dismissal dispute.
First, if an application is made to the FWC to deal with a dismissal dispute, the FWC must deal with the dispute (other than by arbitration), that is to say by mediation or conciliation or by making a recommendation or expressing an opinion, and may convene a conference for that purpose (s 368(1)) and direct a person to attend a conference to deal with a dispute (ss 595(1), (4) and 592(1)). In contrast, while the FWC may deal with a non-dismissal dispute by mediation or conciliation or by making a recommendation or expressing an opinion, and may convene a conference for that purpose (s 592), it is only obliged to do so if the parties agree to participate in such a conference (s 374(1)).
Second, in the case of a dismissal dispute, provided the parties agree and certain other conditions are met, the FWC has the power to deal with a dismissal dispute by arbitration. On the other hand, while s 595(4) provides that the FWC "may exercise any powers it has" under Subdivision B of Division 3 of Pt 5-1, which includes the power to direct a person to attend a conference (s 592(1)), the FWC has no express power to deal with a non-dismissal general protections dispute other than in accordance with s 374. That means that its power to direct a conference is subject to the requirement in s 374 that the parties agree to participate.
Moreover, Subdivision B makes no provision for the FWC to conduct an arbitration in relation to a non-dismissal general protections dispute. Section 595(3) provides that the FWC may deal with a dispute by arbitration "only if the FWC is expressly authorised to do so under or in accordance with another provision of [the] Act". While s 369 expressly provides for arbitration in the circumstances contained in s 369(1), if an application is made to the FWC to deal with a dismissal dispute under s 365, there is no equivalent provision which empowers the FWC to conduct an arbitration of a non-dismissal general protections dispute.
There is no doubt that the applicant's claim for relief against UGL is a general protections court application in relation to a dispute. But s 365 is not concerned with all or any disputes the subject of a general protections court application. It is concerned with disputes raised by an allegation of a dismissal in contravention of Pt 3-1.
In the present case the applicants make two substantive allegations against UGL. One is that UGL engaged in adverse action against Shoemark and Brazier by refusing to make use of, or agree to make use, of their services. Obviously enough, that action was taken before the applicants were dismissed. The applicants characterise this as their "primary claim". The other is that UGL was involved (within the meaning of s 550) in CoMade's decision to dismiss Shoemark and Brazier. The making of the latter allegation means that they were entitled to apply under s 365 to deal with that dispute. While the former is an allegation that adverse action was taken against Shoemark and Brazier, it is not an allegation that they were dismissed in contravention of Pt 3-1. It is an allegation raising a non-dismissal dispute. The fact that the action is alleged to have had a relationship to the dismissal decision does not mean that the applicants are, or were, entitled to apply to the FWC under s 365 for it to deal with the non‑dismissal dispute. Their entitlement to apply to the FWC for it to deal with that dispute was under s 372.
UGL's submission that the provisions of Subdivision A are in part "for the benefit of respondents" goes nowhere. Both parties potentially benefit from the making of an application to the FWC, under s 365 or 372 as both have an interest in resolving a dispute speedily and cheaply.

Does the general protections court application include an application for an interim injunction?

The applicants contended that, because their originating application against CoMade and Mr Hitchens included an application for an interim injunction, they satisfy para (b) of s 370.
I was informed that there was no authority directly on point. Certainly, none of the authorities to which I was taken concern a general protections court application which included an application for an interim injunction and, after the application for an interim injunction was disposed of, another respondent was added or sought to be added.
UGL's point is a simple one. It is that a person entitled to apply under s 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless that application includes an application for an interim injunction and, although the originating application included such a claim, the further amended originating application did not do so. It sought to derive support from the judgment of Pagone J in Ward v St Catherine's School [2016] FCA 790.
In Ward the applicant, a teacher, had filed an originating application against the school which employed her seeking relief under the FW Act. The nature of the relief and the allegations supporting it are not apparent from the judgment. A directions hearing was fixed by the Court. The day before the hearing was due to take place, the school dismissed the teacher. At the directions hearing an oral application was made on her behalf seeking interim injunctions to restrain the school from acting on the dismissal and reinstating the teacher to her previous position. The application for the injunctions was not pressed, however. Instead, the teacher applied for leave to file a further amended statement of claim to add a general protections court application in relation to her dismissal. The respondent submitted that the Court had no jurisdiction to grant leave because the Commission had not issued a certificate and there was no current application for an interim injunction because an oral application for an order in the nature of such an interim injunction had been abandoned. The applicant argued that para (b) was satisfied because she had made the oral application and it was immaterial that the application had been abandoned.
His Honour did not purport to determine the jurisdictional question. He was of the view that the application should be dismissed on discretionary grounds. Nonetheless, in obiter dicta he offered his views on the question, effectively agreeing with the respondent's submission (at [5]): Section 370(b) contemplates the existence of an application for an interim injunction at the time when the general protections court application in relation to a dismissal dispute is made in the Court. The "application" referred to in s 370(b) refers to an application made under s 365 [scil] and no part of the application in the principal proceeding had sought interim injunctions in respect of the dismissal until the oral application for interim injunctions was made on the morning of 17 June 2016. That application, however, was not pressed on 22 June 2016 and there was, therefore, no application which included an application for an interim injunction at the time when Ms Ward was seeking to add her dismissal claim to the existing proceeding. The use of the word "includes" in s 370(b) is significant and is not just a matter of grammar or form. The use of the word "includes" takes account of the practical need for the Court to have jurisdiction to deal with dismissal disputes where there may be a need for an interim injunction from the Court in circumstances which could not await the ordinary process of dispute resolution in the Commission as contemplated by the legislation. The jurisdiction for the Court to entertain a dismissal claim under s 370(b) is, in other words, linked to its jurisdiction to entertain applications for interim injunctions and is conferred upon the Court to ensure that it is able to deal with a dismissal claim where it arises in a case calling for an interim injunction. The process of dispute resolution by the Commission, as contemplated by the legislation, should in this case be allowed to proceed, whether or not the Court has jurisdiction to allow the dismissal claim to be added, where there was no longer an application for an interim injunction and the Commission has not given a certificate under s 370(3)(a).
Ward is distinguishable. In the present case, unlike Ward, an application for an interim injunction was included in the general protections court application (the originating application) (as s 370 requires) and the application for the interim injunction was pressed. In any case, nothing Pagone J said is at odds with the position taken by the applicants in the present case.
The Act contemplates that once a general protections court application is properly before the Court, the Court is seized with jurisdiction to hear the dispute with which it is concerned and to make orders permitted by the law, such as the Rules, including orders adding respondents. In Ward at [6] Pagone J said that the policy expressed in Division 8 is for dismissal disputes to be dealt with by the FWC rather than the Court. With respect, that is a sweeping statement. The apparent policy is to give a person who is dismissed, or an industrial association acting on their behalf, the opportunity to resolve a dismissal dispute quickly and inexpensively with the assistance of the FWC and only to allow the person or association to commence court proceedings either if the FWC is satisfied that all reasonable attempts to resolve the dispute otherwise than by arbitration are, or are unlikely to be, unsuccessful or if the person or association applies for an interim injunction. An application for an interim injunction is an application for urgent relief from a court to preserve the status quo or the status quo ante pending a hearing of a general protections court application. The Act does not contemplate that, if an interim injunction is refused and one or more persons are sought to be added as respondents, the applicant is precluded from doing so unless they apply to the FWC to deal with the dispute involving the additional respondent(s). That would be neither efficient nor cost-effective.
That conclusion is strengthened by a close consideration of the language of s 370(b). The condition in s 370(b) is satisfied if the general protections court application "includes" an application for an interim injunction. The word "includes" relates to the "general protections court application" generally, which may be made against one or more respondents, and not to the relief sought in relation to the "dispute" between the applicant(s) and each respondent. The provision does not require that, in order to satisfy the condition the applicant(s) must seek interim relief from each respondent. Nor does it require that an application be made to the FWC if the court refuses the application for an interim injunction. Consequently, where the general protections court application includes an application for an interim injunction, it is immaterial whether the other respondents were named at the time the general protections court application is filed, or are later joined to the proceeding. The contrary construction, which would require an applicant in the circumstances of the present case to split the proceedings between the FWC and the Court, would entail needless complexity, inefficiency and expense contrary to the apparent statutory purpose.
It seems to me that the short time limit for which the Act provides for making applications to the FWC for it to deal with a dismissal dispute and the limited power the FWC is given to extend that limit supports this construction of the provision. In the period of time between the dismissal and the 21 days after it takes effect, an employee may not know who was involved in the decision. An employer may not provide reasons for the dismissal and it may not voluntarily disclose the identity of the decision maker or makers.

Conclusion

It follows that I will make an order extending the time for UGL to file a defence but otherwise dismiss UGL's amended interlocutory application. On the assumption that leave is necessary, I will also grant the applicants leave to file the second further amended originating application and amended statement of claim.
The applicants did not ask for costs in the event that UGL's interlocutory application was unsuccessful. In any event, having regard to the terms of s 570 of the FW Act, I would make no order as to costs. I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Katzmann.

Federal Court Legislation Amendment Rules 2022(Cth)

Federal Court Rules 1979(Cth)

Fair Work Act 2009(Cth)ss 12, 340, 346, 365, 370, 372, 374, 550, 570, 592, 595

At a glance

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Cases Cited (13)