1 In these proceedings, Michael John Hogan ("the applicant") seeks an order pursuant to s106 of the Industrial Relations Act 1996 ("the Act") declaring the contract of employment between himself and Employment National (Administration) Pty Limited ("the respondent") void ab initio, in whole or in part, as well as consequential orders for the payment of money. On 23 February 2000 the applicant filed a notice of motion seeking leave to file and serve an amended summons for relief. Leave was granted to amend the summons on 10 March 2000.
2 By notice of motion filed on 28 February 2000 the respondent moved the Court for an order that the amended summons for relief be set aside for want of jurisdiction. The grounds advanced to support this application were as follows:
1. The Applicant Summons and the Amended Summons seek to vary a Federal Australian Workplace Agreement and/or a Federal Award.
2. The Summons and the Amended Summons are precluded from determination by the Commission in Court Session by the provisions of Section 109A of the Industrial Relations Act .
3. The Commission, in any event, in the exercise of its discretion ought to refuse to further deal with the Summons or Amended Summons.
3 It will be observed that the grounds raised by the respondent in support of the application that the summons be set aside are essentially twofold. Firstly, the respondent submitted that the summons seeks orders which would have the effect of varying an Australian Workplace Agreement (AWA) made pursuant to the Workplace Relations Act 1996 (Cth). In particular, the summons sought orders varying the probationary clause which forms part of the policies and procedures of the respondent. The policies and procedures of the respondent were said to be incorporated into the AWA by virtue of cl5 of that instrument. As such, it was argued that the summons sought to vary the AWA and as such is precluded by s109 of the Australian Constitution.
4 Secondly, the respondent argued that the grounds relied upon by the applicant in the original summons related to an allegation that the applicant was dismissed as a result of complaints raised by him concerning certain practices he claimed were taking place within the respondent's operation. In line with the principles laid down by the Full Bench in Beahan v Bush Boake Allen Australia Ltd (1999) 47 NSWLR 648, the respondent submitted that the claim was essentially a claim in the nature of an unfair dismissal and the Court had no jurisdiction to hear the claim by virtue of s109A of the Act.
5 It was agreed between the parties that the proceedings should progress initially by way of a short hearing to address the question of whether the notice of motion should be heard as a preliminary matter or remain to be determined at trial ("the preliminary question").
6 After hearing the parties on the preliminary question the Court sought submissions from the parties as to whether it was appropriate, in the circumstances of this matter, for the Court to require notices to be issued pursuant to s78B of the Judiciary Act 1903 (Cth). After receiving these submissions the Court directed that notices be issued pursuant to s78B of the Judiciary Act 1903 (Cth), and that those notices be served on the Commonwealth Attorney-General and the Attorney-Generals of the States and Territories. The notices were made returnable before the Court on 9 August 2000.
7 On the return date no appearances were entered by the Attorney-Generals of the Commonwealth, States or Territories. Mr Phillips of counsel, who appeared for the respondent, advised that his solicitor had received various communications from the Attorney-Generals, indicating that they did not intend to intervene in the proceedings (although in some cases the Attorney-Generals had reserved their rights as to any future proceedings). In these circumstances I now turn to consider the preliminary question
8 The respondent submitted that there is sufficient material now filed by the parties for the notice of motion to be heard and determined. The respondent contended that the claims relied upon by the applicant represents nothing more than a claim for unfair dismissal. The one exception was the claim relating to the probationary period, but this too, it was submitted, could not found jurisdiction because of the constitutional consideration raised. Thus, the respondent submitted that even taking the application and the material relied upon at its highest, there is no jurisdiction for the Court to act.
9 This submission was resisted by the applicant who contended that the question of jurisdiction can only be determined as part of the substantive proceedings. The applicant submitted that, in relation to section 109A of the Act, the question of whether the application is, in essence, a claim for unfair dismissal is a question of fact which must be determined after hearing all the evidence. The applicant submitted that he should not, in effect, be required to present his case at an interlocutory stage.
10 As a general rule, it is desirable that a challenge to the jurisdiction of a Court to determine a particular application should be heard at the earliest opportunity. Should such an objection succeed the expense and delay occasioned by a full trial of the matter would thereby be avoided. However, numerous decisions of this and other Courts, notably Nagle t/as W D and J L Nagle & Sons v Tilburg (1993) 51 IR 8 and the authorities relied upon therein, have indicated that it will only be appropriate to determine an objection to jurisdiction at the appropriate stage in the proceedings. As was said by Kirby P (as he then was) in Majik Markets Pty Ltd v Brake and Service Centre Drummoyne Pty Ltd (1991) 28 NSWLR 443 at 446, the approach of determining jurisdiction at a preliminary stage is a sensible course only "where a party has a substantial threshold argument which, if it succeeds will knock out the claim"; see also Virtue v New South Wales Department of Education and Training (1999) 92 IR 428 at 447 - 448.
11 Whether it is appropriate for a question of jurisdiction to be resolved at a preliminary or threshold stage will necessarily depend upon the nature of the challenge to jurisdiction, as well as the amount of evidence which must be examined and the scope of the determinations which must be made in the course of deciding the jurisdictional point. If an objection to the jurisdiction of the Court requires the examination of the bulk of the evidence and demands that the Court make extensive factual findings, it is unlikely that it will be profitable from the perspective of the parties or the Court for the matter to be determined on a preliminary basis. To do so, would effectively require an applicant to run the case twice should the challenge to jurisdiction prove unsuccessful.
12 It is also relevant to observe that this Court and other Courts have demanded that a particular threshold be satisfied before a preliminary challenge to jurisdiction can be upheld. For the respondent to succeed it must be demonstrated that there is no power for the Court to grant any relief to the applicant: see Virtue at 448 and Federated Municipal and Shire Council Employee's Union v Energy Australia (1999) 90 IR 311 at 319. This is a matter which must be considered when assessing whether the respondent has raised a substantial threshold argument which will "knock out" the claim if it succeeds.
13 In this case, the major objection raised by the respondent is that the bulk of the claim is precluded by virtue of the operation of section 109A of the Act.
14 Section 109A of the Act provides:
109A. Exclusion of certain contracts in connection with unfair dismissals