Does the applicant have "no reasonable prospect" of success?
55 Many of the arguments advanced on Mr Cook's behalf are of doubtful merit, involving challenges to factual findings which appear to be reasonably open on the evidence. Some suggest error of expression of the kind that would not support the grant of relief: see, for example Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
56 But his principal argument cannot be so easily dismissed. That argument was to the effect that the Commissioner erred in finding that the seventh reason, which concerned his conduct in representing a fellow employee, was a valid reason for his dismissal. Mr Cook submitted that it could not be a valid reason because termination on such a basis was unlawful under s 772(1)(d) and (e). He further submitted that the other six reasons were also based on his representative activities, and consequently they, too, could not be valid reasons for his dismissal. Australia Post conceded that it was open to the Commissioner to consider whether the termination was unlawful under s 772(1)(d) or (e), but submitted that, since the application was brought under a different Part of the FW Act (Pt 3-2) the Commissioner was not required to do so.
57 Section 772, which is found in Pt 6-4 of the Act, relevantly provides:
Employment not to be terminated on certain grounds
(1) An employer must not terminate an employee's employment for one or more of the following reasons, or for reasons including one or more of the following reasons:
…
(d) seeking office as, or acting or having acted in the capacity of, a representative of employees[.]
(e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities[.]
58 Mr Cook also submitted that, since he advanced the same argument in the hearing before the Commissioner as his "substantive ground of unfair dismissal", the Commissioner fell into jurisdictional error by failing to deal with it: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55].
59 Mr Cook further submitted that the Commissioner erred in his construction of the enterprise bargaining agreement and that the Commissioner's finding that he was remunerated for his representational activities was perverse and unsupported by the evidence.
60 Mr Cook contended that if the Court were to find that the Commissioner erred, then it follows that the Full Bench failed to exercise its jurisdiction under s 400 of the FW Act, because "it is in the public interest that the law be observed, and it is against the public interest that [the decision] should remain on the public record with such errors apparent on it: Yirrell v Yirrell [(1939) 62 CLR 287]".
61 This contention must be rejected. It is contrary to authority. A failure by the Full Bench to detect error on the part of the Commissioner does not involve jurisdictional error: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 (Coal and Allied v AIRC) at [32]; Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; 177 ALR 491 at [24] (McHugh J); Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union (2015) 230 FCR 565 at [157]-[158]. As Hayne J explained in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [163]:
There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.
62 Absent any question of procedural unfairness, the Full Bench would only have committed jurisdictional error if it had misconceived its role, misunderstood the nature of its jurisdiction, misconceived its duty, failed to apply itself to the relevant question, or misunderstood the nature of the opinion it was to form: Coal and Allied v AIRC at [31], Toms v Harbour City Ferries Pty Ltd (2015) 229 FCR 537 at [47]-[59] (Buchanan J, Allsop CJ and Siopis J agreeing at [1] and [2]). As Buchanan J explained in Toms at [59]:
The task on judicial review is not simply to assess whether an administrative tribunal was right or wrong in its conclusions, or whether it made errors in its analysis. The task is not to correct perceived errors made within jurisdiction. The task is to examine whether the tribunal misconceived its role or otherwise failed to exercise its jurisdiction so that its decision should not be seen as a true exercise of the power committed to it at all.
(Original emphasis.)
63 It is not a jurisdictional error to fail to apply a particular principle or discharge a particular legal obligation which does not affect the decision maker's jurisdiction: Re Operative Plasterers Workers Federation of Australia; Ex parte Brown (1992) 67 ALJR 179 at 180 (Gaudron J). Without more, the erroneous interpretation of a statute or an industrial instrument does not give rise to jurisdictional error: Teys per Buchanan J at [86]-[87]. Any error in this respect is an error within jurisdiction.
64 In these circumstances, it is difficult to see how Mr Cook could establish that the Full Bench committed jurisdictional error.
65 If, as Australia Post appeared to concede, the Commissioner failed to consider whether Mr Cook was terminated in contravention of s 772(1)(d) and (e), Mr Cook might be able to persuade the Court that the Commissioner fell into jurisdictional error. In NABE, in the context of the exercise of the review function of the Refugee Review Tribunal under s 414 of the Migration Act 1958 (Cth), the Full Court said at [55]:
[T]here is, in the case of Refugee Review Tribunal decisions, one circumstance in which it is clearly established that the absence of a finding of a relevant fact may amount to jurisdictional error. Where the Tribunal fails to make a finding on "a substantial, clearly articulated argument relying upon established facts" that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 at [24] per Gummow and Callinan JJ, Hayne J agreeing at [95]. Although not expressly so identified in that case, the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act.
(Emphasis added.)
66 Whether what was said in NABE and Dranichnikov applies to the decision-making process under the FW Act, however, must depend in part at least on a close examination of the provisions of the FW Act relating to the duties and powers of the Commission. Neither party took the Court to the relevant provisions to explain why they would or would not. If the reasoning in NABE and Dranichnikov is applicable by analogy, and the Commissioner did not in fact deal with the submission (directly or otherwise), then the Commissioner might have fallen into jurisdictional error by denying Mr Cook procedural fairness or constructively failing to exercise his jurisdiction. But that does not mean that the Full Bench would also have committed jurisdictional error.
67 Yet, in the absence of jurisdictional error on the part of the Full Bench, it is unlikely that the Court would quash the Commissioner's decision for jurisdictional error on his part. In Dafallah v Fair Work Commission (2014) 225 FCR 559 at [54] Mortimer J observed that:
It is not in the interests of the administration of justice for this Court on judicial review to reach conclusions effectively contrary to the decision-making of the Full Bench in its appellate jurisdiction under the FW Act, by calling up and quashing the decision of a Commissioner, unless it has also formed the view that the decision of the Full Bench is itself affected by jurisdictional error. In my respectful opinion, this means this Court should not begin with a fresh and unfettered examination of the decision of a Commissioner for legal error, and then move to see if any error thus identified had been properly addressed by the Full Bench.
68 Nevertheless, Mr Cook's application is not limited to jurisdictional error. He is entitled to succeed if he can show that there is error of law on the face of the record.
69 I am not satisfied that Mr Cook has no reasonable prospect of demonstrating that the Full Bench erred in law in holding that, because s 772(1)(d) and (e) do not come within Pt 3-2 of the FW Act, the Commissioner was not obliged to deal directly with his submission that, insofar as Australia Post terminated his employment in reliance on his activities in representing fellow employees, the termination was unlawful and the reasons invalid.
70 It is true, as Australia Post submitted, that the FW Act seeks to prevent multiple actions: (see Pt 6-1) and that s 725 would preclude Mr Cook from making an application or complaint under s 773 of the Act for the Commission to deal with a dispute about whether his employment was terminated in contravention of s 772(1).
71 Section 725 provides that:
A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.
72 Sections 726 to 732 refer to applications and complaints that can be made about an employee's dismissal, both under the Act and under other laws. For present purposes it is sufficient to note that s 729 refers to unfair dismissal applications made under s 394(1), such as the application made by Mr Cook, and s 730 refers to unlawful termination applications made in the Commission, which applies to applications brought under s 773.
73 Australia Post submitted that an employee in Mr Cook's position was, in effect, required to elect whether to bring an unfair dismissal application under Pt 3-2 or one of the other remedies afforded by the Act, such as a general protections application (under Pt 3-1) or an unlawful termination application (under Pt 6-4). That may well be so. But Mr Cook did not bring an application or complaint under s 773. Consequently, s 725 does not apply: see RailPro Services Pty Ltd v Flavel [2015] FCA 504 at [121] (Perry J).
74 Accordingly, the Full Bench might have misinterpreted that statute (and therefore erred in law) in concluding that it was not necessary for the Commissioner to deal directly with Mr Cook's submission.
75 The relationship between s 772 and s 387 is a vexed one. It is arguable that the Commission had no power to find that the termination of Mr Cook's employment was unlawful under s 772(1) in the absence of an application under s 773 and in circumstances where the procedure set out in s 777 has not been followed. On the other hand, the matter was raised in the context of an application for a remedy for unfair dismissal under s 394 and, if the termination was indeed unlawful under s 772, it is difficult to see how Mr Cook's conduct in representing fellow employees could be a valid reason for his dismissal under s 387(a). Neither party was able to point to an authority directly on point or to one dealing with the scope and meaning of s 772(1)(d). It would be inappropriate to determine the point on an application for summary judgment.
76 Of course, even if the Full Bench did err as alleged, the error will only be reviewable if the reasons of the Full Bench form part of the record. Both parties proceeded on the basis that they did. I am not convinced that that is correct: see Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd (2015) 235 FCR 305 at [87] ff. But I do not think that this is a question that should be determined on an application for summary judgment either, particularly in the absence of informed argument.