Deva v University of Western Sydney

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY FAIR WORK DIVISION NSD 1567 of 2010

JUDGE: PERRAM J DATE: 9 MARCH 2011 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 Mr Deva was dismissed from the service of the University of Western Sydney on 13 January 2005. He had been employed there as a systems administrator since 1995. Aggrieved by that action against him, Mr Deva commenced a proceeding against the University in the then Australian Industrial Relations Commission claiming his dismissal was harsh, unjust or unreasonable which, at the time, was a ground for seeking relief under the former Workplace Relations Act 1996 (Cth) (the WR Act). This he did on 28 January 2005. 2 Mr Deva's claim was eventually arbitrated by Commissioner Lawson on 21 June 2005. The learned Commissioner rejected all of Mr Deva's contentions and concluded that his dismissal had not been harsh, unjust or unreasonable. Consequently, he dismissed the application: Deva and University of Western Sydney (2005) AIRComm PR959203 (unreported, 22 June 2005, Lawson C). 3 Over five years later, Mr Deva filed an appeal with the present Federal industrial tribunal which, for now, travels under the title Fair Work Australia (FWA). This he did on 5 July 2010. A Full Bench of FWA was convened to deal with Mr Deva's application which consisted of Hamberger SDP, Hamilton DP and Simpson C. In two published decisions - Deva v University of Western Sydney [2010] FWAFB 7362 and Deva v University of Western Sydney [2010] FWAFB 8438 - the Full Bench determined not only that Mr Deva had been obliged to file his appeal within 21 days of Commissioner Lawson's original decision of 22 June 2005 but that it had no power to extend that time after it had expired. Accordingly, it dismissed his application. 4 Mr Deva's first contention in this Court is that this conclusion was incorrect as a matter of law and the Full Bench did, in fact, have the power to extend the time to permit him to bring his appeal. Mr Deva argued that he was entitled to apply for permission to appeal to the Full Bench of FWA under s 604 of the Fair Work Act 2009 (Cth) which is in these terms: 604(1) A person who is aggrieved by a decision: (a) made by FWA (other than a decision of a Full Bench or the Minimum Wage panel); or (b) made by the General Manager (including a delegate of the General Manager) under the Fair Work (Registered Organisations) Act 2009; may appeal the decision, with the permission of FWA. 5 The difficulty with this submission is that Mr Deva is not aggrieved by a decision of FWA. FWA was established by s 575(1) of the Fair Work Act and that occurred on 26 May 2009: see s 2 Fair Work Act. It follows that it could not have been FWA which dismissed his application on 22 June 2005 because it would not exist for another four years. 6 In fact, history records that the body which was then charged with operation of the WR Act was the Australian Industrial Relations Commission (the Commission). Because s 604 says nothing about decisions of the Commission it cannot apply to Mr Deva's case and I reject his submission that it does. 7 That, however, is by no means the end of the matter. Prior to the coming into effect of the Fair Work Act the WR Act had been in force and it was that Act which, at least historically, had regulated Mr Deva's right of appeal. 8 For present purposes one needs to know that the whole of that Act (with the exception of ss 1, 2 and Schedules 1 and 10) was repealed on 1 July 2009 by the combined operation of: (a) Schedule 1 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the Transitional Act) which repealed all of the WR Act except ss 1, 2 and Schedules 1 and 10; (b) s 3 of the Transitional Act which gave Schedule 1 effect; and (c) s 2(1) of the Transitional Act which tells one that Schedule 1 came into force on 1 July 2009. The benefits of this style of legislative drafting over other, perhaps more direct modes of expression (such as, for example, "The Workplace Relations Act 1996 is repealed with effect from 1 July 2009") are not at once obvious. 9 Having then ascertained that the WR Act ceased to exist on 1 July 2009 (apart from ss 1, 2 and Schedules 1 and 10) one then needs to alight upon Schedule 2 to the Transitional Act. It commenced on 1 July 2009 (largely for similar reasons). Item 11(1) of Schedule 2 provides: The WR Act continues to apply, on and after the WR Act repeal day, in relation to conduct that occurred before the WR Act repeal day. 10 I interpolate that the WR Act repeal day is very helpfully defined in item 2 of Schedule 2 to the Transitional Act as "the day on which the WR Act repeal commences" and the same item also tells one that the "WR Act repeal" means "the commencement of Schedule 1". Any one who has endured this far knows - from s 2 - that this was, of course, 1 July 2009. A perhaps less tortuous version of item 11(1) might simply have read "The Workplace Relations Act 1996 continues to apply to conduct taking place before its repeal". 11 Item 11(1) applies to conduct. Does "conduct" include orders made by the Commission? One does not need to answer this because of item 11(2) which is these terms: To avoid doubt, the WR Act continues to apply, on and after the WR Act repeal day, in relation to orders made under that Act, including as it continues to apply under subitem (1). 12 One should take from this, I suppose, that the WR Act continued to govern Commissioner Lawson's original orders (which it would have done, by force of s 8 of the Acts Interpretation Act 1901 (Cth), anyway). Comforting no doubt as that is, the difficulty remains that the Commission itself had ceased to exist, Part 3 of the WR Act having been repealed, and accordingly was no longer available even if the WR Act in some disembodied way was. 13 Since, however, as a matter of law the Commission was no more, item 12(1) of Schedule 2 therefore usefully transferred any functions it would have had by reason of the disinterred WR Act - including appeals - to FWA. It provided relevantly in subclause (b) that on or after 1 July 2009 (not the actual words, of course, but a useful enough English translation): an appeal to the Commission that could have been instituted because of item 11 may be instituted only as an appeal to FWA; 14 It is that provision which conferred upon FWA an entitlement to hear Mr Deva's appeal. 15 How was FWA to hear such an appeal? Unfortunately, the WR Act makes no mention of FWA, instead cussedly only referring to the now non-existent former Commission. At this point item 12(2) of Schedule 2 to the Transitional Act lurches into view and we learn that any reference in a Commonwealth law (which, I note, includes the WR Act) to that which item 12(2) helpfully refers to as a "WR Act body" is to be taken to be a reference to FWA. Only a naïve person would think that that expression was defined in the Dictionary in item 2 of Schedule 2 (as all the other terms up to this point have been). It is, of course, defined in Schedule 18 by item 7(1) which, without laying all of its mysteries at once bare, at least tells one that the Commission was such a body. It follows that the WR Act continued to apply to Commissioner Lawson's orders save that the role that the former Commission would have had was now to be filled by FWA. 16 We know from above that items 11 and 12 of Schedule 2 revived the WR Act for the purposes of Mr Deva's appeal. The question now arises: which of the very many historical versions of that Act would apply? At the time of Commissioner Lawson's decision the right to appeal his orders was conferred by s 45(1)(c). I am not, at this stage, going to set out s 45(1)(c). This is because on 27 March 2006 it was renumbered as s 120(1)(b). This occurred in two easy-to-follow steps. First, s 45(1)(c) of the Act was repealed: see s 3 and item 21 of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005 (Cth). This had the effect of making s 45(1)(c) the second rather than third subclause of s 45(1). Secondly, the heavily amended bulk of the WR Act was then renumbered by force of s 3 and Schedule 5 to the Workplace Relations Amendment (Work Choices) Act. After that procedure, that which had been s 45(1)(c) was reborn as s 120(1)(b). 17 Only a pedant would want to know whether Mr Deva's appeal lay under s 45(1)(c) or s 120(1)(b). Fortunately, it does not matter. This is because the time limits for such an appeal were not specified in either provision. They were instead to be found far away in a regulation. Regulations matter because item 3(2) of Schedule 2 to the Transitional Act makes clear that the concept of the WR Act includes not just the WR Act (in its final moments) but also the regulations which accompanied it into the legal afterlife where repealed legislation lingers (specifying "a reference to the WR Act includes a reference to regulations made for the purposes of the WR Act…"). One of those regulations was regulation 7.4.4(2) of the Workplace Relations Regulations 2006 (Cth). It provided: Despite the amendment of the pre-reform Act by the Work Choices Act, but subject to regulation 4.13, an appeal to a Full Bench in relation to a decision mentioned in paragraph 45(1)(c) of the pre-Reform Act: (a) may be instituted within the period mentioned in regulation 4.13… 18 Regulation 7.4.13 is the dead heart of the matter. It provides (relevantly): (1) The period within which an appeal may be instituted under a provision of this Division that allows appeals to be instituted after the reform commencement is: (a) 21 days after the date of the award, order, decision or declaration appealed against (whether the date of the award, order or decision was before or after the reform commencement); or … (2) The Commission must not grant an extension of time for the institution of an appeal under this Division. 19 The Full Bench of FWA reasoned that reg 7.4.13(2) operated as an unavoidable prohibition on extending the time in which Mr Deva might be permitted to appeal. The provision is certainly capable, in an appropriate case, of potentially working injustice - what, for example, of the employee who has been in a coma or otherwise incapacitated (perhaps by reading these transitional provisions) - but the words are plain enough and both the concept and its blunt effect not unfamiliar. It seems to me that the Full Bench's reasoning about reg 7.4.13(2) is, with respect, inescapable. 20 I have considered whether that conclusion might not be thwarted by rule 11(2) of the former Australian Industrial Relations Commission Rules 1998 (Cth) which did, in fact, authorise the Commission to extend the appeal time. Assuming rule 11(2) survived the coming of the Workplace Relations Amendment (Work Choices) Act - I cannot find any provision which repeals it - nevertheless it is plainly inconsistent with regulations 7.4.4 and 7.4.13 which, therefore, operate as an indirect express amendment even if rule 11(2) continued to exist: Kartinyeri v Commonwealth (1998) 195 CLR 337 at 353-354 [9] per Brennan CJ and McHugh J, 369 [48] per Gaudron J, 375-376 [67]-[68] per Gummow and Hayne JJ, 421 [174] per Kirby J; Goodwin v Phillips (1908) 7 CLR 1 at 7 per Griffith CJ, 14 per O'Connor J. 21 It follows, as the Full Bench correctly concluded, that it had no power to accede to Mr Deva's appeal. That conclusion disposes of the substance of his first complaint. Other procedural problems stood in its way too and although I need not strictly decide them I will, for completeness, note what they were. First, Mr Deva's application to this Court was styled as an appeal. The effect of item 11(2) of Schedule 2 to the Transitional Act is probably that the source for such an appeal would need to be found in the WR Act as it stood at the moment of its repeal (that is, amongst the provisions dealing with appeals from the Commission even though the orders were made by FWA). Another view might be that the orders subject to appeal were made by FWA, albeit under the WR Act. It is not necessary to resolve the rather stupefying issues which arise. In neither case would this Court have any such appellate (as opposed to original) jurisdiction. FWA may refer a question of law to the Federal Court (s 608 Fair Work Act) as could the former Commission (s 122 WR Act), but nowhere in either statute is there a conferral of appellate jurisdiction on this Court from the decisions of either body in unfair dismissal claims. Since decisions by either body in unfair dismissal claims do not involve the exercise of judicial power, the non-existence of such appellate architecture is hardly surprising: cf. Re Dingjan; ex parte Wagner (1995) 183 CLR 323 at 360-361 per Gaudron J (Brennan J agreeing at 341, Deane J agreeing at 342 and Toohey J agreeing at 355). 22 Mr Deva sought to re-characterise his application as one for prerogative relief under s 39B of the Judiciary Act 1903 (Cth). I make the assumption in Mr Deva's favour that s39B can apply to the decision in question. Even if I had been minded in principle to grant the issue of a writ of mandamus and an ancillary writ of certiorari (and I am not), the absence of FWA as a party to Mr Deva's proceeding would have made that course quite out of the question. Since the writs are directed as commands to the officer whose decision it is sought to review, that officer must necessarily be a party to the proceeding. 23 Despite that, FWA's joinder, rather than the particular members comprising the Full Bench, would have been appropriate for two reasons. First, the decision maker was FWA in the sense that the power was exercised by it and not the members comprising it on the particular occasion. Secondly, FWA as an entity "consists" of all its members (s 575(2) Fair Work Act) so that the decision maker is, as a matter of formality, all of the members of the FWA. The Fair Work Act provides for the power of FWA (that is, all of the members) often to be exercised by single members or full benches but this should not obscure the true identity of the repository of the power. Consequently, an application for prerogative relief in a case such as the present requires the joinder of the decision maker - here all of the members of the FWA for the time being. FWA is both a convenient and statutorily mandated shorthand for that group of officers of the Commonwealth. This, I believe, underpins the similar conclusion by McHugh J that the Refugee Review Tribunal is the proper respondent in constitutional writ proceedings: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at 310 [43]. 24 In any event, Mr Deva's challenge to the Full Bench's refusal to hear his appeal must be dismissed. 25 I turn then to the second part of Mr Deva's claims. He has filed in this Court a claim for unlawful termination of employment pursuant, apparently, to s 663 of the WR Act as it stood immediately prior to its repeal. He has also filed a claim alleging dismissal in contravention of a general protection under the Fair Work Act. Mr Deva requested that latter application be disregarded if inconsistent with the first. 26 This Court has no jurisdiction to entertain either of these claims. Mr Deva's claim originally filed with the former Commission was for harsh, unjust or unreasonable dismissal. 27 The effect of item 11 of Schedule 2 to the Transitional Act is to require the application of the WR Act, in its ultimate form, to Mr Deva's claim. This is so even though at the time the claim was made (28 January 2005) the WR Act was in a different form. In this case, that has no material consequence because the only relevant differences are ones caused by the renumbering brought about by Schedule 5 to the Workplace Relations Amendment (Work Choices) Act. For completeness, at the time of Mr Deva's original application the relevant provisions were contained in Part VIA Division 3 of the Act; at the time the Act was repealed they had migrated to Part 12 Division 4. The words were the same. 28 What did Part 12 Division 4 require? It conferred upon a former employee a right to apply to "the Court" in respect of an unlawful termination: s 663(1). "The Court" meant (by s 4) the Federal Court of Australia. However, the right conferred by s 663(1) was not unqualified but was expressly made subject to s 663(5). Subsection (5) was in these terms: (5) An application under subsection (1), (2), (3) or (4) in respect of an alleged contravention of section 659, 660 or 661 may not be made to a court unless the applicant: (a) has received a certificate under subsection 650(2) regarding conciliation of an application made wholly or partly on the ground of the alleged contravention; and (b) has elected under section 651 to begin proceedings in that court for an order under section 665 in respect of the alleged contravention. Only subsection (1) is material; ss 659, 660 and 661 are the unlawful termination provisions. 29 The effect of s 663(5) is to impose two pre-conditions on the commencement of an unlawful termination suit, namely, the existence of a certificate and the making by Mr Deva of a particular kind of election. 30 There is, it may be accepted, a certificate relating to Mr Deva in existence. However, it is not a certificate "made wholly or partly on the ground of the alleged contravention". Following the filing of Mr Deva's claim at the Commission, for unfair dismissal, that matter was conciliated by Senior Deputy President Cartwright with no success. He certified only that Mr Deva's claim to have been subject to a termination which was harsh, unjust or unreasonable could not reasonably be settled by conciliation. The certificate was not a certificate that a claim for unlawful termination could not reasonably be settled by conciliation. 31 A remark should, in any event, be made about the certificate. It was issued pursuant to s 170CF(2). It was not issued, as s 663(5)(a) requires, under s 650(2) no doubt because that section did not exist at the time the certificate was issued. However, this is presently of no moment. Even treating the certificate, in Mr Deva's favour, as having been issued under s 650(2) it is still not a certificate regarding the conciliation of an unlawful termination claim. 32 The reasons for this are clear. Mr Deva never made an application to the former Commission for unlawful termination, confining himself instead to a claim in respect of harsh, unjust or unreasonable termination. Having pitched the claim that way there was no claim for unlawful termination for the Senior Deputy President to certify as being reasonably incapable of settlement by conciliation. Mr Deva sought to argue that he was told by various people not to claim for unlawful termination as part of a "softly softly" approach to the litigation. He also claimed - and the University accepted - that the topic "unlawful termination" was mentioned during the conciliation itself. But that is of no moment. Unless there is a certificate under s 663(5) certifying that all reasonable attempts to settle the unlawful termination claim have failed, no application may be made to this Court. The words of s 663(5) are intractable to any other outcome. 33 In any event, however, Mr Deva is also unable to satisfy the second requirement of s 663(5)(b) (set out above) which requires him to show that he has elected to pursue unlawful termination proceedings pursuant to s 651. Mr Deva did make an election under s 170CFA(1) to proceed to arbitration in respect of his unfair dismissal claim. But he has never made an election pursuant to s 651 (or its predecessor s 170CFA) to pursue court action for unlawful termination. 34 In those circumstances, he has satisfied neither of the requirements of s 663(5) and his claim for unlawful termination cannot be pursued in this Court. It follows that it must be dismissed. 35 That leaves Mr Deva's claim alleging dismissal in contravention of a general protection. As I understood it, Mr Deva only pursued this claim as an adjunct to the two other claims and not if it was inconsistent with them. In effect what Mr Deva sought was that his unfair dismissal claim should be referred back to FWA and his claim for unlawful termination should be heard in this Court or referred back to FWA contemporaneously. Howsoever one analyses that suggestion, however, it is not one to which I can accede. The unfair dismissal claim is not before me so there is nothing for me to refer back. I could not refer the unlawful termination claim back to FWA, not only because it is not lawfully before me but, more importantly, because FWA could not lawfully hear such a claim which would involve the exercise of judicial power. In all those circumstances, this claim must be dismissed. 36 All three claims fail. Costs must follow the event. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.