Construction, Forestry, Mining & Energy Union v Mammoet Australia Pty Ltd

REASONS FOR JUDGMENT 1 Pursuant to s 25(1AA)(b) of the Federal Court Act 1976 (Cth) (FCA) the appellant seeks that the appellate jurisdiction of the Court in relation to this appeal be exercised by a Full Court rather than a single Judge. 2 The appellate jurisdiction of the Court in relation to appeals from a judgment of the Federal Magistrates Court, is to be exercised by a single Judge of the Court, unless a Judge "considers that it is appropriate" for a Full Court to determine the matter: s 25(1AA) of the FCA. 3 Prior to 1 January 2010, the position in relation to the exercise of the Court's appellate jurisdiction in appeals from the Federal Magistrate's Court was the other way: a Full Court exercised the appellate jurisdiction unless the Chief Justice considered it appropriate for a single Judge to determine the matter. 4 The legislative reversal was effected by the Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth), the intent of which is that appeals from the Federal Magistrates Court are to be heard by a single Judge, unless circumstances warrant a hearing by a Full Court. 5 The appellant submits that a ground of their appeal, being the proper construction of the term "payment" contained in s 470 of the Fair Work Act 2009 (Cth) (FW Act), gives rise to an important question of law which will have widespread consequences. As such it requires the Court to exercise the discretion contained at s 25(1AA)(b). 6 The appellant submits that the construction of the term "payment" within s 470 of the FW Act, especially in relation to the provision of accommodation, has the potential to affect the ability of thousands of employees engaged in remote areas to take protected industrial action. It contends that "Fly in, Fly out" employees engaged in remote areas are regularly provided accommodation through their employer and that a withdrawal of that accommodation, on the basis it is a "payment" within s 470 of the FW Act, will render a vast majority of those employees unable to take part in any protected industrial action. 7 The proper construction of "payment" will also affect the relevant employers who provide accommodation and may potentially have to withdraw such accommodation in circumstances where their employees engage in protected industrial action for relatively insignificant periods of time or be liable for financial penalties under the FW Act. 8 I am not presently persuaded that there is any relevant connection between the question for resolution in this case, and the ability of "fly in", "fly out" employees to take protected industrial action. As the respondent submits protected industrial action can take on many and varied forms, and the question of its intersection with the provision of accommodation and the operation of s 470(1) of the FW Act, depends on the particular nature of the action taken, the particular nature of the industrial arrangements providing for the accommodation and the "duration" of the industrial action taken. The concern of the appellant is speculative and hypothetical. 9 The appellant also submits that the definition of "payment" has not been previously dealt with in any detail by the Full Bench of the Federal Court of Australia or the High Court of Australia: that there are no relevant decisions from these Courts regarding its definition in the context of s 470 of the FW Act which would provide clear guidance for either the employee or employer involved in protected industrial action. I do not consider this to be a meritorious submission. A single judge of this Court can pronounce upon this issue. If a party wants to challenge that judgment it may do so. 10 The appellant observed that the decision of the Federal Magistrate in relation to the question of "payment" (as equivalent to remuneration) is primarily reliant upon decisions from English Courts or inferior Australian Courts: Construction, Forestry, Mining & Energy Union v Mammoet Australia Pty Ltd [2011] FMCA 802 at [79]. I do not think this advances the appellant's case for consideration by a Full Court. Single judges often deal with issues which have not been raised previously in the Court. 11 The appellant then argues that a binding decision of the Full Bench will be more effective in upholding the objects of the FW Act, contained at s 3(f) which provides: Achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action ... 12 I am not sure what is meant by this. If it means to suggest that a decision of a Full Court carries greater authority than that of a single judge of the Court that is trite. However, it is beside the point which is whether it is "appropriate" for a Full Court to hear the matter. I am not persuaded that it is appropriate. Finally the appellant submits that there is no prejudice to either party if the appellant jurisdiction is exercised by the Full Bench (see SZOBI v Minister for Immigration and Citizenship [2010] FCA 1026 at [8]). I regard this submission as neutral in its effect.