Kennedy, John Patrick v Australasian Coal & Shale Employees Federation & Anor [1983] FCA 325

Conciliation and Arbitration Act, 1904-1983 ss.144(1), 144(3), 144(5), 144(5A), 144(6) and 144(7)

JOHN PATRICK KENNEDY v. THE AUSTRALASIAN COAL AND SHALE EMPLOYEES FEDERATION and ELCOM COLLERIES PTY. LIMITED

IN THE MATTER OF THE CONCILIATION & ARBITRATION ACT, 1904-1983

BETWEEN : JOHN PATRICK KENNEDY Applicant AND: THE AUSTRALASIAN COAL AND SHALE

Judge making order: Beaumont, J. Date order made: 31 October, 1983.

1. Application of the second respondent to be dismissed from these proceedings is refused.

IN THE MATTER OF THE CONCILIATION & ARBITRATION ACT, 1904-1983

BETWEEN: JOHN PATRICK KENNEDY ' " Applicant AND: THE AUSTRALASIAN COAL AND SHALE

I AND: ELCOM COLLIERIES PTY. LIMITED Second Respondent

This is an application by the second respondent that these proceedings be dismissed as against it on the ground that the claim made and the relief sought against it

brought by the applicant against the first respendent only.

Orders under sub-s.144(5) of the Conciliation and Arbitration Act, 1904 ("the Act") were sought. By sub-s.144(1), a person employed in connection with an

industry, er engaged in an industrial pursuit is, subject to certain exceptions, entitled to be admitted as a member of an organisation of (inter alia) employees. Sub-section

144(3) deems certain persons to be employed in an industry

'that of employee in an industry or engagement in an industrial pursuit; or ' |

employee in an industry or to engage in an industrial pursuit and desires to

By sub-s.144(5), where a question or dispute arises as to the entitlement under this section of a person to he admitted as a member of an organisation, that person, a person who is or desires to become the employer of that person, the organisation or the Industrial Relations Bureau

may apply to the Federal Court for a declaration as to the

entitlement of the first-mentioned person under this

section. The jurisdiction and powers of the Court are then

"(5A) Subject to sub-section (7), the Court has jurisdiction to hear and determine an application under the last preceding sub-section and may, notwithstanding anything contained in the rules of the organization concerned, make such order to gqive effect to its determination as it thinks fit.

(6) The orders which the Court may make under the last preceding sub-section include' an order requiring the organization concerned to treat a person to whom .sub-section (1) applies as being a member of the

organization and, upon the making of such an order, or as otherwise

specified in the order, the person specified in the order becomes, by force of this Act, a member of the organization.

(7) Where an application is made to the Court under this section--

(a) if the application is made otherwise than by a person whose entitlement is in question--that person shall be given an opportunity of being heard by the Court; and

(b) if the application is made otherwise than by an organization--the

organization concerned shall be given an opportunity of being heard by the Court."

By his application filed in this Court on 21 April, 1983, the applicant sought orders or declarations against

the first respondent under s.144 that "he is entitled" to be

enrolled as a member of the first respondent and that "he 1s included" in the category of persons who are eligible for

membership of that organisation. Understandably, the

Federation was the only respondent to this application at

that stage. The application was supported by affidavit evidence that, in November, 1982, the second respondent,

carrying on business as "Newvale Colliery", had offered the

applicant employment as a junior trainee mineworker; and that, in January, 1983, the second respondent had withdrawn that offer but had offered him employment as a coal mines

certificate trainee, subject, however, to certain conditions. In this connection, the applicant relies' on a

letter to him datéd 24 January, 1983 from the colliery 1d manager of the second respondent as follows:

"Further to our offer of 'employment on 23rd November 1982, it would appear that the position offered does not strictly come within the terms of a Coal Mines Certificate Traineeship.

Please be advised that we offer you a Coal Mines Certificate Traineeship at Newvale Colliery.

Terms of employment will require that you attend a Coal Mines Certificate course on a 'day release' arrangement for the first year. 'Day release' in subsequent years will be subject to you successfully completing each stage of the course.

You will still need a clearance from the Northern District Miners Federation before you commence employment."

In late November 1982, the applicant applied for membership of the first respondent. Shortly thereafter, he

was informed that his application was unsuccessful. On or

about 19 August, 1983, after the commencement of these

respondent, by its colliery manager, wrote a letter dated 19

letter of 24th January 1983 offering you a position as Coal Mines Certificate

Actually, electricity generation in 1982 was 2% less than in 1981, and in 1983

As a result of the decline most of the mining developments contemplated a year

@r so ago have been deferred for some years. In addition, power station coal

stockpiles have grown considerably to a level equivalent to about six months

consumption. In fact, some stations have nearly a year's supply.

Consequently the Electricity Commission has found it necessary to reduce overall

reducing its workforce by attrition in recent months.

attrition policy is planned to continue whilst stockpiles remain at high levels. As can be seen, the Company is not

In all the circumstances, the Company regrets to advise you that the offer of

On 26 August, 1983, Bauer, J., in a reserved judgment, refused an application by the applicant to the Industrial Commission of New South Wales for an order or declaration pursuant to s.115 of the Industrial Arbitration

Act, 1940, that the applicant was entitled to membership of

"the Australasian Coal and Shale Employees' Federation,

'Northern District Branch. In those proceedings, heard

earlier in the year, the New South Wales Coal Association, of which the second respondent is a member, was granted leave to appear. Section 115 of the New South Wales Act is similar in its operation to s.144 of the Act. Bauer, Jd. held that the applicant had established neither the occupation nor the employment required by the New South Wales statute to entitle him to membership of the union.

However, some observations made by Bauer, J. in his reasons '

for judgment may explain why the second respondent wrote to

the applicant on 19 August, 1983. He said (at p.23):

The question whether Kennedy has 'employment' is more complex and difficult, not because he has actually ever turned a hand at the job, but because employment depends upon a legal concept of contract.

The contract of employment, if 1t stands, stands between Flcom and Kennedy and the submission made for Elcom to this Commission that Kennedy had entered the employment of Elcom may well be an admission made by Elcom with

respect to any dispute actual or potential between Kennedy and Elcom. However, any admission made by the intervenor for Elcom, not a party to litigation, is not binding upon the Federation.

It seems to me therefore that the, Federation is entitled to ask this Commission to determine as an issue in this application between the Federation and Kennedy, whether, on the evidence, a contract of employment sufficient tc support a declaration under s.115 has been made out.

In my view the evidence does not support the existence of a binding contract cf employment between Elcom and Kennedy.

achieve a 'clearance' or membership of the Federation 'before you may commence employment'. This he never achieved for reasons set out in this judgment. The condition never being perfected, the offer could not be accepted by Kennedy.

to bring himself within the class of ;) ''employed' persons within s.115."

Thereafter, the applicant applied to join the second respondent as a party to these proceedings and to seek relief against it in connection with the contract of employment he alleges to exist between himself and the second respondent. A number of objections to this application, including an objection to jurisdiction, were taken by the second respondent. After hearing argument on the objections other than the question of jurisdiction, I

allowed the applicant to join the second respondent as a

party to the proceedings and granted leave to the applicant to amend his application as he may be advised. However, I reserved to the second respondent the right to contend that the Court lacked jurisdiction to entertain any claim against it. In my view, the proper course was to defer argument on that point until after the applicant had amended its applicatian in order that the issues in the proceeding might

claims final relief against the first respondent as follows:

"1. A declaration that the applicant is entitled to be enrolled as a member of the first respondent.

2. A declaration that the applicant is in the category of persons eligible for membership of the first respondent.

3. A declaration that the applicant is a person who is qualified to be employed in the industry for which the first respondent is constituted.

4. An order that the first respondent take all steps and do all things

necessary to enrol the applicant as a member of the first respondent."

"1. A declaration that at the date of the making of the application against the first Respondent under Section 144 of the Conciliation and Arbitration Act, 1904, as amended, the Plaintiff was employed within the meaning of the said section by the Second Respondent.

at the date of judgment an employee of the Second Respondent within the meaning of Section 144 of the Conciliation and

4. Such further or other order as this Honourable Court deems it appropriate and necessary."

"1. An order pending determination of '; the application under Section 144 of the Conciliation and Arbitration Act, 1904, as against the First Respondent, that

the Second Respondent be restrained from terminating the employment of the

2. Such further or other order as this Honourable Court deems it appropriate and necessary."

I have now heard argument on the question of jurisdiction. Although the respondents deny jurisdiction in

the Court as against the second respondent, they concede that the question of employment of the applicant by the

proceedings even if the case is confined to the first

respondent. This is because, even in the absence of the second respondent, the first respondent will raise as a defence to the claim against it under s.144 the fact that the applicant is' neither employed by nor qualified te be employed by, the second respondent for the purposes of that provision. The applicant' is supported by the Attorney-General for the Commonwealth in his claim that the Court has jurisdiction to grant the relief sought against

The respondents rely principally upon the reasoning advanced by the High Court of Australia in its decision in Fencott v. Muller (1983) 46 A.L.R. 41, and submit that the claim sought to be made against the second respondent arises, if at all, under the general law; that it does not arise under any federal law: that it is a claim which is quite distinct from the claim sought to be made against the first respondent, based as it is on s.144 of the Act; and that this is not even a case of an attempt to join a non-federal claim to a federal claim made against the same party, since the claims here are sought to be made against different parties who are at arms' length with each other.

Murphy, Brennan and Deane, JJ.) indicated the scope of the jurisdiction of the Federal Court to deal with a non-federal

"It follows also that, though the facts upon which a non-federal claim arises do

not wholly coincide with the facts upon which a federal claim arises, it is nevertheless possible that both may be aspects of a single matter arising under

a federal law. Mason J in Philip Morris, following what was said in

Moorgate Tobacco, gave an indication, of a non-federal claim which would not be severable (33 ALR at 504): 'Likewise, it may appear that the attached claim and the federal claim so depend on common transactions and facts that they arise out of a common substratum of facts. In instances of this kind a court which exercises federal jurisdiction will have jurisdiction to determine the attached claim as an element in the exercise of its federal

jurisdiction.' His Honour's reference to a dependence of federal and non- federal claims upon common

transactions and facts approximates the test in United Mine Workers of America

Perhaps it is not possible to devise so precise a formula that its application to the facts of any controversy would determine accurately what claims are disparate and what claims are not. Whatever formula be adopted as a guide -- and the formula of 'common transactions and facts' is a sound guide for the purpose -- it must result in leaving outside the ambit of a matter a 'completely disparate claim constituting in substance a separate proceeding' (per Barwick CJ in Felton v. Mulligan, at 373), a mwion~federal matter which is 'completely separate and distinct from the matter which attracted federal jurisdiction' (per Murphy J in Philip Morris, at 512) or 'some distinct and unrelated non-federal clain' (per Stephen, Mason, Aickin and Wilson JJ in Moorgate Tobacco (31 ALR) at 174)."

"What 1s and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships. The scope of a controversy which constitutes a matter is not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the:claims for relief are set out. But in the end, it is a matter of impression and of practical judgment whether a

' non-federal claim and a federal claim joined in the proceeding are within the scope of one controversy and thus within the ambit of a matter."

"However, federal judicial power is attracted to the whole of a controversy only if the federal claim is a substantial aspect of that controversy. A federal claim which is a trivial or insubstantial aspect of the controversy must, of course, itself be resolved in federal jurisdiction, but it would be neither appropriate nor convenient in such a case to translate to federal jurisdiction the determination of the substantial aspects of the controversy from the jurisdiction to which they are subject in order to determine the trivial or insubstantial federal aspect. Again, impression and practical judgment must determine whether it is appropriate and convenient that the whole controversy be determined by the exercise of federal judicial power."

In Stack v. Coast Securities (No. 9) Pty. Limited (unreported, 12 October, 1983) the High Court restated the

Limits of the jurisdiction of the Federal Court to entertain

a non-federal claim in proceedings brought under the Trade

Practices Act ("accrued jurisdiction"). Mason, Brennan and

"The first limb of s.86 (of the Trade Practices Act), being an exercise of the powers conferred by the constitutional provisions to which we have referred (ss.75-77), must be read in the light of them. So read, it confers jurisdiction on the Federal Court to determine the non-federal aspects of a single justiciable controversy of which the Issues raised under the Act form an

integral part. There are two constituent elements in the jurisdiction which is thereby conferred: the first

element comprises the federal issues which arise for determination under the federal law, e.g., the issues which arise in, these cases under ss.52, 53(aa) and 53A of the Act and damages for 1 contravention; the second element comprises the non-federal issues, the suggestion here being that the issues arising in the actions for specific performance in the Supreme Court are

non- federal aspects of a single controversy of which the federal issues

form an integral part. For want of a better term it is convenient to refer to this second element as "accrued jurisdiction'."

In the present case, there can be no doubt that the questions of employment of the applicant by the second respondent and of the qualification of the applicant for that purpose are part of the controversy between the

applicant and the first resporident: the first respondent

claims, as Bauer, J. held, that the applicant is not so

employed and is not so qualified. The applicant seeks to assert the contrary in a number of ways and, submits that, if necessary, he is entitled to an interim injunction restraining the second respondent from acting on the purported notice of termination of his employment in the

connection, he relies upon the decisions in Hill v. Parsons

(1972) 1 Ch. 305; Marshall v. Guinle (1979) Ch. 227; Gunton

v. Richmond Upon Thames 'London Borough Council (1981) 1 ch. 448; and Baker v. Corporation of the City of Salisbury

(1982) 2 I.R. 168 as authority for the proposition that unlawful repudiation of a contract of service which is not

accepted by the innocent party does not result in the

automatic termination of the contract. In this way, he claims that his purported dismissal by the second respondent

cannot operate so as to frustrate his application under

Since the first respondent seeks to put in issue the employment of the applicant and his qualification in that behalf, it must follow that this point will necessarily be agitated in these proceedings even if the' second respondent were not joined as a party. Although : sub-s.144(7) is not, in terms, applicable to the position of the second respondent, there can be little doubt that, if sought, the second respondent would be granted leave to intervene pursuant to s.106, even if that intervention were

to be limited to the issue of employment (see Owens v. |

Australian Building Construction Employees' and Builders' Labourers' Federation (1979) 46 F.L.R. 16 at pp.21-24).

This was the course (i.e. of intervention) adopted before Baver, J. although the intervenor was not the second respondent itself but an association of yhich it was a member. This led to the rather unsatisfactory situation that the admissions of the second respondent were not admissible in the application before Bauer, J., nor was the second respondent bound by the findings and decision in that

In my opinion, the questions of employment and of the qualification of the applicant in that respect are part, indeed a central part, of the controversy between the applicant and the first respondent. It follows, in my view,

that prima facie (that is, subject to the discretionary

considerations mentioned in Stack), the determination of

these questions is within the accrued jurisdiction of this Court even if the employment contract has its source in a

non-federal law (cf. Federated Clerks Union of Australia v.

Further, the circumstance that the non-federal claim is made against a party other than the respondent against which the "anchoring" federal claim is made, does

not deprive the Court of its accrued jurisdiction in the

whole matter: Fencott v. Muller, supra, itself illustrates \

how different claims 'may be made against different parties and yet constitute a single controversy; and, on occasions, the High Court has made orders in constitutional matters against parties who are not within constitutional reach

where this is required in order that the relief granted may

Drake-Brockman; Ex parte National O41 Pty. Ltd. (1943) 68 C.L.R. 51 at p.65).

Other examples may be found in a number of decisions in the United States relied on by the Attorney-General. There "pendent party" jurisdiction has frequently been exercised by federal courts (see the discussion of the cases cited in Wright "Handbook of the Law

of Federal Courts" 3rd. Ed. (1976) at p.77; "Federal Pendent

Party Jurisdiction and United Mine Workers v. Gibbs-Federal Question and Diversity Cases" (1976) 62 Virginia Law Review

194 at pp.210-211, Miller; "Aldinger v. Howard and Pendent Jurisdiction" (1977) Vol.77 Columbia Law Review 127). The authorities there discussed are of assistance in the present case: the principle applied to justify pendent party jurisdiction is derived from the reasoning of the Supreme Court in United Mine Workers v. Gibbs 383 U.S. 715; and

although it is true that Gibbs involved a pendent claim, and

that no question of pendent party jurisdiction there arose,

the Gibbs "common nucleus of operative facts" test has now been substantially adopted by the majority of the High Court

party jurisdiction is Wood v. Standard Products Co. Inc.,

456 F. Supp. 1098 where the anchor federal claim was based on admiralty jurisdiction. In an action by a fisherman against his employer for the fish slime infection he contracted when the employer failed to provide protective gloves, the court then exercised pendent jurisdiction over a state law malpractice claim against the treating physician. Warriner, J. applied the reasoning of the Supreme Court in Aldinger v. Howard 427 U.S.1 (1976) which, in turn, followed

"It is clear that if the anchor claim on which pendant jurisdiction is asserted is based on diversity, a federal district court may not reach out and assert jurisdiction over an -additional party in order to. adjudicate a pendant

State claim where there is no diversity as to the additional party. It does not matter that there is a common nucleus of operative facts or that judicial economy might be served. Owen Equipment & Erection Co. v. Kroger, -- U.S. --, 98 S.Ct.2396, 57L.Ed.2d 274 (1978). Parker v. W.W. Moore & Sons, Inc., 528 F.2d 764 (4th Cir. 1975). :

But when the anchor claim is one grounded in federal law, as the general maritime 'claim is here, then it is not Owen 'and Parker to which this Court must pay primary attention, but Aldinger. Aldinger, specifically dealing with pendant party jurisdiction based upon a federal question, a 42 U.S.C. 1983 claim, provides the framework for analysis for this pendant party jurisdictional question.

After directing the district courts to the relevant statutory language, Aldinger, 427 U.S. at 18, 96 S.Ct. at 2422, tells us that:

(O)ther statutory grants and: other alignments of parties and

claims, might call for a different result. When the grant of jurisdiction to a federal court is exclusive, for example, as in the prosecution of tort claims against the United States under 28 U.S.C. 1346, the argument of judicial economy and convenience can be coupled with the additional argument that only in a federal court may all of the claims be tried together."

; A similar approach, upholding the existence of a pendent party jurisdiction, except in certain areas in diversity cases, was taken in Shannon v. United States 417 F.2d. 256 (1969) (at p.263); Ford Motor Company v. Wallenius Lines 476 F. Supp. 1362 (1979); Ortiz v. United States Government 595 Fed.R.2d. 65 (1979); and Boudreaux v. Puckett

In my opinion, once the first respondent elected to raise a defence to the claim made'under s.144 that the applicant was neither employed nor qualified to be employed by the second respondent, it followed that the claims made by the applicant against the first and second respondents respectively were part of the same controversy, notwithstanding that different relief is sought against each

respondent: the claim made against the second respondent springs from facts which are common to the claim made

against the first respondent and the formula of "common

transactions and facts" may thus be applied in this case.

The issue of employment or qualification in that connection is not an insubstantial one in these proceedings. Indeed, if the experience of the Industrial Commission proceedings is any guide, this defence of the first respondent may well be the central issue in the application. Further, there is no reason why this Court cannot finally

resolve the dispute now existing between the applicant and

the second respondent as to his employment or qualification in that regard. There are, therefore, no discretionary reasons why this Court should decline to exercise its

accrued jurisdiction to deal with the claim now made against

the second respondent (cf. Novasonic Corporation Pty. Ltd.

v. Hagemeyer (Australasia) B.V. - unreported - Lockhart, J.

The Attorney-General for the Commonwealth also relied on s.32 of the Federal Court of Australia Act, 1976 as an additional source of jurisdiction in the present case. In the light of the conclusion I have reached, it is

In the result, I would refuse the application of the second respondent to be dismissed from the proceedings. I will reserve costs at this stage. I fix Monday, 7 November, 1983 at 2.15 p.m. for a further directions hearing

Pages are a true copy of the reasons for judgment herein of The Honourable