18 The SDA contends that ss 539 and 540 of the FW Act impliedly repeal s 33D of the FCA Act to the extent that s 33D confers standing on current or former employees in a representative capacity to apply for an order in relation to a contravention of a civil remedy provision of the FW Act on behalf of other employees.
19 Now it is convenient to note at this point that ss 33C and 33D of the FCA Act provide:
33C Commencement of proceeding
(1) Subject to this Part, where:
(a) 7 or more persons have claims against the same person; and
(b) the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and
(c) the claims of all those persons give rise to a substantial common issue of law or fact;
a proceeding may be commenced by one or more of those persons as representing some of all of them.
(2) A representative proceeding may be commenced:
(a) whether or not the relief sought:
(i) is, or includes, equitable relief;
(ii) consists of, or includes, damages; or
(iii) includes claims for damages that would require individual assessment; or
(iv) is the same for each person represented; and
(b) whether or not the proceeding:
(i) is concerned with separate contracts or transactions between the respondent in the proceeding and individual group members; or
(ii) involves separate acts or omissions of the respondent done or omitted to be done in relation to individual group members.
33D Standing
(1) A person referred to in paragraph 33C(1)(a) who has a sufficient interest to commence a proceeding on his or her own behalf against another person has a sufficient interest to commence a representative proceeding against that other person on behalf of other persons referred to in that paragraph.
(2) …
20 Save for the SDA's contention, it is not in issue for present purposes that the applicants in the Elliott-Carde proceeding have satisfied ss 33C and 33D.
21 Now the orders sought in the Elliott-Carde proceeding for group members are orders under Part 4-1 Division 1 and in relation to contraventions of the civil penalty provisions (s 539(2)).
22 Now SDA says that ss 539 and 540 of the FW Act were enacted to confer rights on employees, groups of employees acting for others, and organisations to apply for orders in relation to a contravention of a civil remedy provision only if certain conditions were met.
23 But it is said that in this case the conditions have not been met by the applicants in the Elliott-Carde proceeding, other than in relation to the Part 4.1 Division 1 orders sought concerning the contraventions that affect Ms Elliott-Carde and Mr Dunlop personally.
24 Now by way of background the SDA has said that in 2009 the FW Act expanded the types of representative actions that could be brought under the FW Act. It is said that it created a new scheme in s 539 and s 540 that elaborately and exhaustively defines who can make applications for orders in relation to contraventions, the conditions those applicants must meet to do so, and limits the types of contraventions that can be the subject of those applications.
25 It is said that the text, context, purpose and history of ss 539 and 540 evince a legislative intention to restrict the standing of applicants identified in s 540 to apply for such orders to those who are not excluded by the newly created limitations.
26 It is said that this scheme impliedly repeals and is inconsistent with s 33D of the FCA Act to the extent that s 33D confers standing on employees and groups of employees to apply for an order in a representative capacity in relation to a contravention of a civil remedy provision. It is said that the implied repeal arises as the result of necessary implication.
27 It is said that the limits in ss 540(1), (2), (5) and (6) that allow applications "only if" certain conditions are met are inconsistent with the s 33D scheme allowing applications regardless of those limits.
28 Now the SDA accepts that prior to 2009, s 33D conferred standing to make representative claims in relation to contraventions of the Workplace Relations Act 1996 (Cth) and its predecessors. But it is said that in 2009 "the legislature introduced a standing provision which departed substantially from its predecessor" (Regional Express Holdings Ltd v Australian Federation of Air Pilots (2016) 244 FCR 344 at [59] per Jessup J, North and White JJ concurring).
29 It is said that the explanatory memorandum to the relevant Fair Work Bill identified (pp i to iii) that a major reform was that the new Act "enhances compliance with the new workplace relations system by providing a single, accessible compliance system". It declared (at [2120]) that "Part 4-1 establishes a single compliance framework for the new workplace relations system".
30 Generally, it is said that in 2009 the FW Act introduced a specific and comprehensive standing scheme that defined the types of representative actions that could be brought and provided that those actions could be brought "only if" certain conditions were met.
31 It is said that the text and context support the conclusion that s 540 was intended to limit the standing of employees, groups of employees and organisations to apply for Division 1 orders in relation to contraventions of civil remedy provisions to those who satisfy the limitations in s 540. It is said that the substantive right to apply for relief is conferred by s 539, subject to s 540. It does not contemplate an alternative means of enforcing awards and enterprise agreements. Section 540 is titled "limitations on who may apply for orders etc."
32 It is said that s 539(2) confers a right of standing on 13 types of person to apply for orders "in relation to contraventions" of civil remedy provisions: cf s 718(1) of the WR Act. Subsections 540(1), (2), (5) and (6) impose limitations on the right of standing on 9 of those 13, including limits on the right of standing of employees and, through s 540(6), groups of employees.
33 It is said that the rights of standing granted to employees by ss 539(2) and items 2 and 4, read with the limits in s 540(1), confer on an employee the right to apply for a Division 1 order in relation to a contravention of an award or enterprise agreement "only if the person is affected by the contravention". It is said that the words "only if" in this context mean "if and not otherwise". The intent is to limit the standing of an employee to apply for an order in relation to the particular contravention that affected that particular employee, and not confer standing on an employee in relation to contraventions that only affect other employees.
34 It is said that the limits imposed by s 540(1) are incompatible with a concurrent s 33D right of standing.
35 Section 33D permits an application by an employee in relation to contraventions that do not affect the applicant employee. But it is said that an employee who has a right under ss 539 and 540 to seek orders against an employer would not have a right to seek orders against the employer for or on behalf of employees who were not employed by that employer. But it is said that if s 33D operates concurrently, the employee would be able to seek orders for those employees. In that circumstance it is said that the limit in the FW Act would thereby be circumvented by allowing that concurrent operation.
36 Further, it is said that a concurrent s 33D right of standing is not consistent with the words "only if" in s 540(1). And it is said that those words or similar words of limitation were not contained in the predecessor of s 540; see s 718 of the WR Act. It is said that the words "only if" in s 540(1) should not be read as "if". And it is said that such words reflected the legislative intention to create a single compliance framework.
37 Now actions by employee organisations, registered employee associations, and industrial associations are all types of representative actions. The applicants in those actions are each entitled to represent the interests of a class (s 540(6)(b)(ii)).
38 It is said that ss 539 and 540 delineate the contraventions that can be the subject of each type of representative action; see for example the limited rights of industrial associations in s 539(2) items 11 and 12.
39 It is said that the creation of that scheme in 2009 was not intended to operate concurrently with s 33D and the Part IVA scheme that creates a form of representative proceeding free of those restrictions.
40 Now the SDA accepts that prior to the enactment of the FW Act the persons who had standing to apply for relief on "the employee side" were employees, types of registered or recognised organisations and, through s 33D, certain employees on behalf of other employees (see s 718 of the WR Act). But it is said that in 2009 the FW Act replaced the former scheme and conferred standing for the first time on an informal association consisting of a group of employees to apply for relief for some contraventions: s 539 and s 540(6). It is said that this reform was significant in two respects.
41 First, it created a representative action scheme available to members and non-union members unique to the FW Act.
42 Second, it altered how s 540 was to be construed. Now it is said that the text construed includes the defined terms in it. The words of the definition of "industrial association" from s 12 are substituted for that defined term in s 540(6) and then the substantive enactment is construed in its context. As a consequence, s 540(6) may be read as:
An association of employees … (whether formed formally or informally), a purpose of which is the protection and promotion of their interests in matters concerning their employment … may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision, only if …
43 The association need not have corporate status. And it can simply be a group of employees who come together informally for the identified purpose. The intention is to confer a right of standing on groups of employees in a manner similar to the standing conferred in s 33D. However, the new right is subject to conditions, and for limited purposes.
44 It is said that the creation of the new scheme is inconsistent with the s 33D scheme operating concurrently without those limits and for different purposes.
45 The right of employee organisations to bring enforcement proceedings attracts a strict regulatory environment. Registration as an employee organisation is only available to genuine associations, formed for protective purposes which are free from control by, or improper influence from, an employer; see s 19(1)(a) and (b) and s 20(1)(a) and (b) of the Fair Work (Registered Organisations) Act 2009 (Cth). These restrictions articulate a legislative concern, reflected in the definition in s 12 of industrial associations, that those who take representative enforcement actions should be limited to groups of employees formed for protective purposes. It ensures that the core function of those taking the actions is to protect employees.
46 It is said that permitting s 33D to have a concurrent operation allows for the prosecution of representative actions without that protection.
47 Now I would reject the SDA's position.
48 Part IVA of the FCA Act can apply to the types of claims under the FW Act advanced in the Elliott-Carde proceeding.
49 Now as to the doctrine of implied repeal by later statute, it was said in Saraswati v The Queen (1991) 172 CLR 1 at 17 by Gaudron J that:
It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended both provisions should operate and that, to the extent they would otherwise overlap, one should be read as subject to the other.
50 And in Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 258 CLR 31 at [87], French CJ and Kiefel J said:
For a court to conclude that a later statute impliedly repeals an earlier statute the court must be satisfied that the two statutes are so inconsistent that they cannot stand or live together. This will be so only if the provisions of the two statutes cannot be reconciled.
(footnote omitted)
51 Further, we have had our attention drawn to the decision of Beech-Jones CJ at Common Law in Fakhouri v Secretary, NSW Ministry of Health (2022) 316 IR 221 at [39] to [51]. Of course, he was dealing with different statutory provisions and so it is unproductive to draw too much from his detailed analysis. But I would endorse his statement that the notion or principle (call it what you will) of implied repeal is "a rule of last resort to be deployed if one cannot determine that one set of provisions is subject to the other".
52 In the present case the text of the relevant provisions discloses no inconsistency, because the provisions are directed at different ends. Sections 539 and 540 regulate the standing of a party principal. They control standing by limiting the persons permitted to apply, and the contraventions to which their applications can relate.
53 But s 33D does not derogate from these controls. It does not purport to expand the classes of permitted person or contraventions beyond the limits contemplated by ss 539 and 540. Rather, its work is different and authorises a person to commence a proceeding on others' behalf provided that the terms of s 33D(1) are met.
54 Moreover, Part IVA including ss 33C and 33D establish a limited form of statutory agency between the lead applicant and the group members. In one sense therefore, a class action under Part IVA involves each group member through the representative applicant applying for orders pertaining to the contraventions that the group members are "affected by". Accordingly, there is no inconsistency with s 540, particularly s 540(1)(a). An employee has standing to pursue the relevant rights under s 540(1)(a). But s 540(1) says nothing whatsoever to deny that the employee may act in a representative capacity.
55 Now the SDA conceives of the relevant provisions as equivalents dealing with like subject matter. The SDA deals with the standing afforded by s 540(6) to industrial associations, and contends that the intention is to confer a right of standing on groups of employees in a manner similar to the standing conferred under s 33D.
56 But putting to one side for the moment that industrial associations have no standing to commence proceedings for contraventions of the National Employment Standards, enterprise agreements or awards (see s 539, items 1, 2 and 4), ss 539 and 540 do not give rise to any relationship of privity between an industrial association and the employee affected and do not found any relationship of agency. Section 540(6)(b) does not involve derivative standing. And the association does not stand in the shoes of the employees, as Lee J has explained. Employees are able to pursue for themselves the relevant statutory rights and to do so using representative mechanisms such as Part IVA as they see fit.
57 Accordingly, the SDA's submissions about the limitations on standing in the relevant provisions of the FW Act go nowhere. Those provisions may be elaborate and specific, but apart from dictating who has a sufficient interest they do not otherwise interfere with representative proceedings of the kind authorised by Part IVA of the FCA Act.
58 Moreover, this construction is supported by the relevant purposes of each statute. Both the FW Act and Part IVA are intended to enhance access to justice. Now nothing further need be said concerning the obvious purpose of Part IVA. But let me refer to s 3 of the FW Act.
59 Section 3 of the FW Act provides that an object of the Act is to ensure a "guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards…" and speaks of "effective compliance mechanisms".
60 Clearly, the relevant aspects of both statutory regimes concerning the standing question have a remedial purpose and should be construed broadly, not narrowly. A liberal rather than literal construction should be taken to remedial legislation.
61 In IW v The City of Perth (1997) 191 CLR 1, Brennan CJ and McHugh J said (at 12):
The injunction contained in s 18 of the Interpretation Act is reinforced by the rule of construction that beneficial and remedial legislation, like the Act, is to be given a liberal construction. It is to be given "a fair, large and liberal" interpretation rather than one which is "literal or technical". Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.
(footnotes omitted)
62 Gummow J said (at 39):
There is ample authority that remedial legislation, such as that found here, is to be accorded "a fair, large and liberal" interpretation rather than one which is "literal or technical". These were the phrases used by Thorp J in Coburn v Human Rights Commission. They are of importance in this case, particularly in construing the term "services" as it appears in the statutory phrases "a person who … provides goods or services" and "by refusing to provide the other person with those goods or services" in s 66K of the Act. Nevertheless, as will appear, the legislation must be read as a whole and such a term must be construed in the context in which it appears.
(footnotes omitted)
63 Now if the SDA's contentions were to be accepted, groups of employees subject to a breach of an enterprise agreement or award and who could not afford prohibitive litigation costs could do nothing except hope that the Fair Work Ombudsman or a registered organisation might take up their claims. Even then, in respect of enterprise agreement contraventions the registered organisation would need to be covered by the relevant enterprise agreement in order to do so (see s 539, item 4, column 2).
64 Let me now say something about matters of history which the SDA prayed in aid. A key premise of its stance was that the enactment of the FW Act comprised a major reform to the standing provisions. But this premise was exaggerated.
65 Of course ss 539 and 540 depart from the antecedent standing provisions. But whilst Regional Express at [59] said that "the legislature introduced a standing provision which departed substantially from its predecessor", the Full Court was addressing two specific changes, namely, the consolidation of what was previously a miscellany of standing provisions into ss 539 and 540, and the removal of the express requirement that a person affected by a contravention be a member of an organisation for that organisation to have standing in respect of the contravention.
66 So, the Full Court was concerned with the construction of the phrase "entitled to represent the industrial interests" in ss 540(2) and (6). That phrase controlled the standing of organisations and industrial associations. But the Full Court did not consider the standing of employees under s 540(1)(a).
67 And when one correctly focuses on the present context where the SDA's argument is that it is the FW Act's conferral of standing on employees that brings it into conflict with Part IVA and creates the implied repeal, when that specific issue of employees' standing is compared with its antecedents, little changed. Section 540(1)(a) controls standing for employees by limiting it to employees who are "affected by" the contravention. But this controlling device has been employed in each iteration of the predecessor legislation since 1904.
68 The Commonwealth Conciliation and Arbitration Act 1904 (as originally enacted) at s 44(2) provided that a breach of an order or award could be the subject of a proceeding commenced by "any member of any organisation who is affected by the breach or non-observance". This provision was later re-ordered to s 119(2) but remained until that Act was repealed.
69 The Industrial Relations Act 1988 (Cth) (in force at 18 December 1996) at s 178(5)(ca) provided that a penalty for a breach of a term of an award or order may be sued for and recovered by:
(ca) a person:
(i) whose employment is, or at the time of the breach was, subject to the award; and
(ii) who is affected by the breach;
70 The WR Act before WorkChoices (in force at 10 June 2003) at s 178(5)(ca) similarly provided.
71 The WR Act (in force immediately prior to the enactment of the Fair Work reforms) at ss 718(1) and (2) relevantly provided standing for employees whose employment was subject to the Australian Fair Pay and Conditions Standard, awards and collective agreements (items 2, 3 and 4) and who were "affected by the breach of the applicable provision". Self-evidently this continuity is not consistent with the SDA's inconsistency thesis. The FW Act did not involve any major reform to standing for employees. The introduction of the words "only if" in ss 539 and 540 did no more than make explicit an already extant reality.
72 Further, the broader statutory context discloses no inconsistency. Of course, it may be accepted that the FW Act provides a comprehensive scheme of enforcement, with specific mechanisms for obtaining orders in relation to contraventions of the FW Act. But nothing in the text of the FW Act evinces an intention that the scheme is to operate to the exclusion of other mechanisms available to an applicant to enforce their rights, or for a group of applicants to collectively enforce their rights, under federal law.
73 First, nothing in the FW Act expressly excludes the operation of Part IVA. The lack of a provision in the FW Act expressly excluding the powers conferred on the Federal Court by Part IVA is not determinative, but this hardly assists the SDA.
74 Second, the FW Act as a whole demonstrates an intention to work alongside the general statutory powers conferred on the Federal Court. So, for example, s 545(1) is cast in the broadest terms and allows the Federal Court to "make any order the court considers appropriate". Further, s 562 confers broad jurisdiction on the Federal Court in relation to any matter arising under the FW Act. Further, s 564 expressly provides that nothing in the FW Act limits the Federal Court's powers under ss 21, 22 or 23 of the FCA Act. The explanatory memorandum (at [2213]) stated that the cognate clause was "intended to address authorities which have held that federal industrial laws exhaustively contain the remedies available to enforce those laws".
75 Further, the enactment of the FW Act in 2009 was accompanied by the enactment of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth). Schedule 17 to that Act made various amendments to the FCA Act. This shows that Parliament turned its mind to the way in which the FW Act would interact with the FCA Act and made changes to the FCA Act to reflect its intention. However, Parliament did not indicate any intention to exclude representative proceedings under Part IVA from claims arising from contraventions of the FW Act.
76 Further, Division 3 of Part 6-1 of the FW Act prohibits certain applications under the FW Act where an application has been made in relation to the same conduct under other legislation. So, the legislature was aware of the coextensive relationship between the FW Act and other remedial legislation and the potential for conflict.
77 The legislature sought to impose controls where necessary but omitted any express exclusion of Part IVA. So, there was no manifestation of intention that the FW Act would not work in parallel with Part IVA. Admittedly the nature of the overlap dealt with in Division 3 of Part 6-1 is qualitatively distinct from what I am addressing. But nevertheless such provisions indirectly confirm the thesis that Part IVA was not intended not to work in parallel.
78 Generally, the legislature turned its mind to the Court's powers under the FCA Act and the way in which the FW Act would interact with them. And having turned its mind to how the FW Act would work together with the powers of the Federal Court, the legislature could have but did not express in s 564 or provide in any other provision an intention to exclude the powers of the Federal Court under Part IVA.
79 Third, the FW Act does not provide for representative proceedings within the meaning of or akin to those in Part IVA. The standing in ss 539 and 540 of the FW Act provided to employee organisations and to a limited extent industrial associations is provided to both as party principals. Claims brought by either of them under the FW Act are not brought in a representative capacity and are to be distinguished from proceedings brought under Part IVA. Relevantly, there is no equivalent or analogue to Part IVA in the FW Act.
80 Fourth, a number of representative proceedings under Part IVA were brought to enforce contraventions of predecessor workplace laws in the period between the enactment of Part IVA and the commencement of the FW Act. In the many years between the commencement of Part IVA and the commencement of the FW Act, more than 30 class actions concerning subject matter arising under the WR Act were commenced (Meagher L, Employment Class Actions: Past Use and Present Utility, [2022] No 4 UNSW Law Journal Forum p 6). Some were the subject of published decisions.
81 The legislature may be taken to have been aware of these decisions. In that context, its decision to omit any express exclusion of Part IVA proceedings in the FW Act is significant.
82 In Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309, McHugh J at [81] said:
Nothing in the Act suggests that this approach is no longer applicable. The Act still defines "industrial dispute" in s 4(1) as a dispute "about matters pertaining to the relationship between employers and employees". Division 3 agreements operate in respect of "industrial disputes" (see, eg, s 170LN). These provisions give rise to the inference that Div 2 and Div 3 agreements have a common element, namely, that for such an agreement to be certifiable, it must be about matters pertaining to the requisite relationship or to "the relationship between employers and employees" in their capacity as such. Because the Federal Parliament enacted the Act two years after the Re Alcan decision, the drafters of the Act almost certainly knew of the decision and the interpretation applied by this Court to the expression "about matters pertaining to the relationship between employers and employees". The principle that the re-enactment of a rule after judicial consideration is to be regarded as an endorsement of its judicial interpretation has been criticised, and the principle may not apply to provisions re-enacted in "replacement" legislation. However, industrial relations is a specialised and politically sensitive field with a designated Minister and Department of State. It is no fiction to attribute to the Minister and his or her Department and, through them, the Parliament, knowledge of court decisions - or at all events decisions of this Court - dealing with that portfolio. Indeed, it would be astonishing if the Department, its officers and those advising on the drafting of the Act would have been unaware of Re Alcan.
(emphasis in original, footnote omitted).
83 Nothing in the text of the FW Act or in relevant extrinsic material suggests that the legislature sought to change that existing practice.
84 Fifth, although the explanatory memorandum stated (at [2120]) that "Part 4-1 establishes a single compliance framework for the new workplace relations system", the explanatory memorandum is here referring to the consolidation of the miscellany of standing provisions into one place. So, although the standing and compliance provisions had been scattered throughout the predecessor legislation, the FW Act integrated them into ss 539 and 540. So, the explanatory memorandum (at [2121]) said:
having a single compliance framework ensures consistency across the Bill in terms of when particular persons can apply for orders and the types of orders that the courts can make.
85 The reference to a single compliance scheme is not a reference to an exclusive compliance scheme, in the sense that it indicates any intention to exclude another enactment such as Part IVA.
86 In my view, there is no inconsistency between Part IVA and ss 539 and 540 of the FW Act and they may operate in parallel. Sections 539 and 540 of the FW Act work harmoniously with s 33D(1) of the FCA Act, so that where a person satisfies the standing requirements of those FW Act provisions, they have a sufficient interest to commence a Part IVA proceeding on behalf of 7 or more persons who have claims against the same person.
87 Properly construed, ss 539 and 540 of the FW Act do not by themselves evince an intention to impliedly exclude Part IVA. Sections 539 and 540 are concerned with an applicant's standing to enforce civil remedy provisions of the FW Act. The phrase "affected by the contravention, or will be affected by the proposed contravention" in s 540(1) is a statutory expression of ordinary common law standing principles. The phrase does not of itself evince an intention to exclude the operation of Part IVA.
88 So, there is no inconsistency in the text of the respective provisions when read in context, let alone an inconsistency such as to engage the rarely successfully applied doctrine of implied repeal.
89 In summary, I would reject the SDA's argument that the applicants in the Elliott-Carde proceeding lack standing under s 33D of the FCA Act.