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[2020] FCA 595
plaintiff. The Union's interlocutory application dated 12 March 2020 is dismissed; orders made for parties to bring in agreed or competing minutes as to interlocutory orders and programming the matter for...
Colvin J dismissed the Union's interlocutory application to set aside Maersk's court proceedings. The Court held that where the FWC acts as a private arbitrator under an enterprise agreement its own view on the limits of its jurisdiction is not final unless the agreement clearly gives it that power. Because the Full Bench had refused permission to appeal, the primary award by the Deputy President remained operative and Maersk was entitled to challenge jurisdiction in the Federal Court. Pursuing that challenge did not amount to an abuse of process.
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The dispute arose under an enterprise agreement (the Maersk EA) covering certain crew on Maersk vessels. The Maritime Union brought an application in the Fair Work Commission (FWC) seeking binding arbitration that two vessels should each carry an additional steward (Reasons [1], [15]). Maersk raised two jurisdictional objections in the FWC: (1) that the subject matters were already covered by a July 2018 settlement agreement; and (2) that the first step of the Maersk EA dispute resolution procedure (raising the issue with the vessel Captains) had not been taken (Reasons [16]–[18]).
A Deputy President of the FWC heard the matter, addressed jurisdictional objections under the heading 'Jurisdictional and Other Objections', found the dispute was separate from the settlement, and that the procedural step was complied with, and made an award favourable to the Union (Reasons [18]). Maersk sought permission to appeal to a Full Bench of the FWC. The Full Bench considered the application for permission, concluded permission was required and refused permission to appeal, having addressed the substantive grounds raised (Reasons [19]–[20]).
Maersk then commenced proceedings in the Federal Court alleging that the FWC had acted beyond its jurisdiction in conducting the arbitration, seeking declarations that the award had no legal effect and injunctions restraining enforcement (Reasons [21]). The Union filed an interlocutory application in the Federal Court under r 13.01 seeking to set aside the originating application on grounds that the Federal Court lacked jurisdiction or that the proceedings were an abuse of process because the FWC (or Full Bench) had finally determined the jurisdictional issues (Reasons [22], [23]).
Colvin J dismissed the Union's interlocutory application, held that the Full Bench's refusal of permission did not constitute a final determination of the jurisdictional questions, confirmed that arbitrators cannot, by their own decisions, extend their jurisdiction (absent very clear agreement to the contrary), and found that Maersk was not committing an abuse of process by litigating in the Federal Court after raising its objections in the FWC (Reasons [24]–[36], [41]–[43]). The Court ordered programming directions and left the merits of Maersk's challenge to be heard (Orders; Reasons [43]).
There are two central legal propositions that underpin Colvin J's reasoning.
First, the nature of the FWC's power in this context was private arbitral power conferred by the enterprise agreement and constrained by the statutory scheme. The Fair Work Act requires enterprise agreements to contain a dispute resolution mechanism enabling the FWC or an independent person to settle disputes about matters arising under the agreement (s 186(6)), and the Act confines the FWC to dealing with disputes only if expressly authorised by the Act (s 595(1), (3)). Consequently, when the FWC accepts a reference under an enterprise agreement it acts as a private arbitrator under the authority conferred by that agreement (Reasons [3]–[6]).
Second, under the common law an arbitrator's decision on the scope of the arbitrator's own jurisdiction is not, without more, final and binding. Arbitrators cannot, by their own decision, create or extend their authority. Exceptions exist only where the parties have clearly and unmistakably conferred on the arbitrator the power to determine the limits of the arbitrator's jurisdiction (TLC Air Conditioner; Dallah; Reasons [28]). Colvin J applied this principle to conclude that, because the Maersk EA did not in express terms confer power on the FWC to determine the bounds of its jurisdiction, any view formed by the Deputy President or the Full Bench on jurisdiction was not conclusive and could be challenged in the courts (Reasons [24]–[31]).
On the specific procedural point, the Full Bench refused permission to appeal. The Court relied on a line of authorities indicating that where permission to appeal is required and is refused, the substantive decision remains that of the primary decision-maker and is operative unless and until the Full Bench grants permission and hears the appeal. Thus the Full Bench's refusal did not amount to a substantive, binding determination of the jurisdictional issues (Reasons [29]–[31]).
Finally, Colvin J rejected the abuse of process argument because Maersk had properly raised the jurisdictional points in the FWC and before the Full Bench; by doing so Maersk was not reserving the issues or acting opportunistically (Reasons [36]–[37]). The Court also noted but did not decide potential estoppel or evidentiary consequences of fresh evidence being tendered in the Federal Court; those are matters for later adjudication (Reasons [39]–[40]).
Before this decision the legal framework comprised: the Fair Work Act provisions governing enterprise agreements and dispute resolution (s 186(6); ss 595, 604, 607, 738) and common law principles limiting an arbitrator's ability to self-validate jurisdictional reach (TLC Air Conditioner; Dallah). Authorities such as Endeavour Energy, Duggan, ALS Industrial and Glen Cameron had considered the FWC's role when arbitrating under enterprise agreements, and other Full Court decisions had addressed the implications of a Full Bench refusing permission (Australian Building and Construction Commissioner; Broadspectrum; Australian Mines and Metals).
Colvin J synthesised these authorities to reiterate and apply the proposition that an arbitrator's jurisdictional rulings, including those formed in the course of a Full Bench refusal of permission, are not necessarily final. The decision therefore reinforces the pre-existing rule rather than forging new law: it confirms that (i) where permission to appeal is required and refused the primary decision remains operative; (ii) absent unequivocal language in an enterprise agreement, an arbitrator cannot finally bind the parties on questions of the arbitrator's own jurisdiction; and (iii) a party properly pursuing court review of such jurisdictional questions after engaging the arbitral process does not normally commit an abuse of process (Reasons [28]–[31], [34]–[36]).
The decision thus clarifies application of those principles to the specific statutory setting of the FWC acting as a private arbitrator under an enterprise agreement, and to the procedural circumstance of refusal of permission to appeal.
"Arbitrators cannot by their own decisions create and extend their own authority" (Reasons [28]). Plain English: An arbitrator cannot declare that they have power to decide everything simply by deciding it; courts can be asked to rule on whether the arbitrator had the power.
"Unless and until permission to appeal is given, it is the primary decision by the Deputy President that is effective" (Reasons [31]). Plain English: If a Full Bench says you need permission to appeal and it refuses permission, the original award remains the operative decision.
"As Maersk is doing no more than pursuing a right ... that the FWC as a private arbitrator has acted outside its authority, there is no abuse of process" (Reasons [36]). Plain English: It is not improper for Maersk to go to court to argue the FWC exceeded its powers after having raised those arguments in the FWC.
The quoted clause of the Maersk EA (cl 10.4) describing note that a single-member decision can be appealed to a Full Bench (Reasons [11]). Plain English: The agreement mentions the possibility of a Full Bench appeal but that does not necessarily mean appeal as of right; parties must be clear if they mean an appeal as of right.
This decision will be engaged where:
In short, the precedent is triggered where a jurisdictional challenge to an FWC arbitral award is pursued in court after the FWC has adjudicated and (if relevant) a Full Bench has refused permission for appeal.
This judgment itself relies upon and applies earlier Federal Court and Full Court authority (e.g. TLC Air Conditioner, Dallah, Endeavour Energy, Duggan, Australian Building and Construction Commissioner, Broadspectrum, Australian Mines and Metals, Glen Cameron, ALS Industrial). Colvin J positions the present ruling as consistent with those authorities: it applies the standard common law limitation on arbitrator self-determination and the statutory consequences of a refused permission to appeal (Reasons [24]–[33]). Future courts will treat Maersk Crewing v CFMMEU as an authoritative statement that, in the FWC-enterprise agreement context, refusal of permission keeps the primary decision operative and does not immunise arbitral jurisdictional rulings from judicial review.
Practitioners should expect subsequent courts to adopt the same approach unless and until parties adopt express language in enterprise agreements clearly conferring on the FWC or Full Bench the power to conclusively determine jurisdictional boundaries.
Clear-conferral threshold: Colvin J accepted the established principle that only clear and unmistakable language will empower an arbitrator to finally determine its own jurisdiction (Reasons [28]). What precise formulations of dispute resolution clauses would meet that threshold in the enterprise agreement/FWC context remains a fact-sensitive question. Parties considering finality must use explicit drafting.
Nature of relief where FWC acted beyond authority: Colvin J noted that when the FWC acts as private arbitrator it may affect the relief available (Reasons [13]), citing ALS. The precise contour of remedies available against an FWC award reached as private arbitration (for example, the scope of declarations or injunctive relief) was not decided and will require fuller adjudication.
Fresh evidence and estoppel: The Court signalled that admissibility of fresh evidence not presented to the FWC and estoppel consequences of factual findings in the FWC are matters for later determination (Reasons [39]–[40]). How estoppel, issue estoppel, or abuse will operate where parties did or did not lead particular evidence in the FWC requires further litigation.
Post-primary new arbitral appointments: Colvin J observed that, in theory, parties could agree post-primary decision to give a Full Bench additional arbitral authority, but that would amount to a new appointment requiring a new application (Reasons [32]–[33]). The mechanics and limits of such a post-hoc conferment of arbitral authority in the Fair Work statutory scheme remain untested in detail.
Interaction with statutory appeal conferrals: The line between a private arbitration incorporating an appellate mechanism and a statutory appeal that is supervisory of the FWC raises complex questions of characterisation in marginal cases. Where parties attempt to treat the Full Bench as an appellate body with wider finality, the courts will need to resolve whether that is a private-arbitration feature or a statutory appeal, and the consequences for finality and judicial review.
Practitioners should therefore draft dispute resolution clauses with precision, and be prepared to litigate evidentiary, estoppel, and remedy issues that the present interlocutory ruling postponed to substantive hearing.
Counsel for the Applicant: Mr M Follett with Mr D Ternovski
Solicitor for the Applicant: Mills Oakley Lawyers
Counsel for the First Respondent: Mr MT Ritter SC
Solicitor for the First Respondent: The Maritime Union of Australia
Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs
BETWEEN: MAERSK CREWING AUSTRALIA PTY LTD Applicant
AND: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Respondent
JUDGE: COLVIN J DATE OF ORDER: 6 MAY 2020
COLVIN J: 1 Maersk owns and operates vessels that are deployed to provide services to participants in Australia's offshore oil and gas industry. Maersk is a party to an enterprise agreement which covers certain of the employees working on those vessels, including stewards (Maersk EA). These proceedings concern a dispute that arose as to whether there should be an additional steward on particular vessels. 2 The matter was arbitrated by a Deputy President of the Fair Work Commission (FWC) who made an award that was unfavourable to Maersk's claims. Maersk sought to appeal to the Full Bench. Permission to appeal was refused. Maersk now seeks relief in this Court on the basis of a claim that the FWC acted beyond jurisdiction. The respondent, the Construction, Forestry, Maritime, Mining and Energy Union (Union), seeks an order setting aside the proceedings in this Court. It says that the issues were finally determined in the FWC and this Court lacks jurisdiction to hear the claim, alternatively that the proceedings should be dismissed as an abuse of process. For the following reasons, the Union's application should be dismissed.
The nature of the jurisdiction being exercised by the FWC 3 The Fair Work Act 2009 (Cth) provides a statutory mechanism for the making of an enterprise agreement with the binding consequences specified in the legislation. In particular, the terms of the agreement will cover employees who were not a party to the agreement and were not involved in the process by which the agreement was made. The Act uses the term 'cover' to describe the extent to which the agreement is binding. It may cover particular parties and particular matters. Therefore, an enterprise agreement 'is a statutory artefact made by persons specifically empowered in that regard, and under conditions specifically set down, by the FW Act. It is enforceable under that Act, and not otherwise': Toyota Motor Corporation Australia Limited v Marmara [2014] FCAFC 84; (2014) 222 FCR 152 at [90] (Jessup, Tracey and Perram JJ). Though given the description 'agreement', its formation, performance and enforceability are governed by the Act. 4 Any enterprise agreement must be approved by the FWC before it is binding. In order for it to be approved, amongst other things, the FWC must be satisfied that the agreement provides a procedure that requires or allows the FWC or an independent person 'to settle disputes … about any matters arising under the agreement': s 186(6). Therefore, every approved enterprise agreement is required to contain an independent dispute resolution mechanism that governs 'any matters arising under the agreement'. 5 If an enterprise agreement, as approved, requires or allows the FWC to settle disputes and an application is made to the FWC in respect of a dispute then it acts as a private arbitrator under the authority conferred by the terms of the enterprise agreement: Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82; (2016) 244 FCR 178; and Duggan v Metropolitan Fire and Emergency Services Board [2017] FCAFC 112; (2017) 251 FCR 1 at [56]-[58]. Absent any statutory provision conferring further private arbitration power, the FWC has no larger authority than the authority to act as a private arbitrator conferred by the enterprise agreement. 6 Further, the nature and extent of the arbitral appointments that the FWC may undertake are also confined by the extent of the statutory authority to act as arbitrator conferred on the FWC by the Act. Whereas a natural person can accept an appointment to resolve any dispute, the FWC can only do so for the purpose of performance of its statutory functions. In that regard, s 595(1) provides expressly that the FWC may deal with a dispute only if it is expressly authorised to do so under the Act. In particular, it may deal with a dispute by arbitration only if expressly authorised to do so under or in accordance with the Act: s 595(3).
The nature of an appeal to the Full Bench of the FWC in an arbitral matter 7 The Act allows for decisions that have been made by the FWC (other than a Full Bench or Expert Panel) to be the subject of an appeal 'with the permission of the FWC': s 604(1). Permission must be granted if it is in the public interest to do so: s 604(2). On appeal, the FWC can, amongst other things, confirm, quash or vary the decision under appeal or 'make a further decision in relation to the matter that is the subject of the appeal': s 607(3). Therefore, it appears that the appellate jurisdiction both requires permission and is confined by the matter the subject of the appeal. 8 The appeal provisions apply if an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term of the kind described in s 186(6): s 738(b). Significantly, the application of the appeal provisions in the case of an arbitration requires an enterprise agreement to include a term that provides for resolution of disputes. There is a further application of the appeal provisions if 'a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement': s 738(c). However, the dispute in the present case was not of that character. 9 If parties elect to include in their enterprise agreement a provision that requires or allows the FWC to settle disputes arising from the agreement then, unless they specify that they intend that there be no appeal there is much to commend the proposition that they take the FWC as they find it. Likewise, if they intend the statutory appeal process to apply on the basis that it is by way of statutory oversight rather than part of the process of private arbitration then they should say so: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd [2015] FCAFC 123; (2015) 235 FCR 305 at [57] (Dowsett, Tracey and Katzmann JJ). It follows that in the absence of any other provision in the enterprise agreement, an enterprise agreement that requires or allows the FWC to settle disputes provides for private arbitration by the FWC by a process that incorporates the prospect of an appeal to the Full Bench with permission. 10 It might be thought from the above analysis that an express provision in an enterprise agreement to the effect that there was a right of appeal would be ineffective for the reason that it would seek to confer on the FWC an authority that was broader than the terms of its statutory authority. The limits on the scope of the statutory authority appear to be the same in the case of a statutory appeal or an appeal as part of a private arbitration under an enterprise agreement. On that basis, it could be contended that in both instances the appeal requires permission. However, in Glen Cameron Nominees Pty Ltd v Transport Workers' Union of Australia (No 2) [2017] FCA 1515, Perram J had to consider that precise question. His Honour approached the matter on the basis that s 739(4) conferred authority on the FWC to accept an arbitration that included a right to appeal and held that where the agreement was expressed in those terms a decision to refuse permission to appeal was invalid: at [16]. Therefore, the authority that might be conferred on the FWC to conduct a private arbitration extends to include an arbitration that requires the FWC to hear an appeal. However, in that event, any such appeal would form part of the same arbitration. 11 Indeed, Maersk maintained before the Full Bench that there was a right to appeal. However, that position was rejected by the Full Bench on the basis that the terms of the dispute resolution procedure agreed between the parties did not include such a right. Relevantly, it provides in cl 10.4: The parties to the dispute agree to be bound by a decision made by the FWC in accordance with this clause, but note that a decision of a single member of the FWC can be appealed to a Full Bench of the FWC. 12 The Union's position was that the Full Bench exercised no statutory authority in the circumstances of the present case. It acted as private arbitrator only. 13 Finally, where the FWC exercises power as a private arbitrator and in that sense does not exercise governmental powers, there may be consequences for the relief that is available, a matter considered in detail in ALS Industrial Australia Pty Ltd. So, it is important is to bear in mind that the nature of the power being exercised by the FWC in cases like the present is a power of private arbitration undertaken pursuant to express (but limited) statutory authority to accept an arbitral reference and make an award.
The history of proceedings in the FWC 14 The Maersk EA sets out the dispute resolution procedure to be followed if an industrial dispute arises. The first step in the process is for the matter to be discussed between 'the Employee(s)' and a specified representative of Maersk (being the person having command of the Vessel if the matter arose on board a vessel). Ultimately, if the dispute is not resolved by discussion, the specified procedure allows for the matter to be referred to the FWC for binding arbitration. 15 In November 2018, the Union filed an application in the FWC. It claimed that a dispute had arisen in accordance with the dispute settlement procedure under the Maersk EA about the manning levels on two vessels (Vessels). It was said that each of the Vessels should be manned with an extra steward. It was claimed in the FWC application that the first step (and following steps) of the dispute resolution process had been followed. The relief sought by the application was for the matter to be referred for conciliation and, if the matter could not be resolved, for the matter to be arbitrated by the FWC. 16 For present purposes, it is common ground that Maersk raised two jurisdictional matters in response to the claim by the Union in the FWC. First, it said that the matters raised in the claim were covered by a settlement agreement reached in July 2018. Second, it said that the first step in the dispute resolution procedure was never taken because the issue was never raised with the Captains of the Vessels. 17 On the evidence before me, when the dispute was heard by a Deputy President of the FWC, the first point was the subject of a submission that the claim should be dismissed as vexatious in accordance with s 587 of the Act. The second point was raised to discredit the claim by the Union that the matter was separate from the dispute that had been settled by the settlement agreement. 18 In delivering reasons for a decision in favour of the claim, the Deputy President addressed the two matters at the outset under the heading 'Jurisdictional and Other Objections'. As to the first point, it was found as a matter of fact that the matter raised in the claim was 'a separate and different dispute'. As to the second point, it was found in fact that the first step in the dispute resolution process had been complied with (in circumstances where there was no evidence from the Captains of the Vessels). The Deputy President went on and considered in detail the substance of the dispute and reached a conclusion that was favourable to the Union. 19 Maersk brought an appeal. It challenged the factual findings as to each of the two points. In support of an application for permission to be granted for the appeal, Maersk claimed that, amongst other matters, it was in the public interest for permission to be given because (a) the application should have been dismissed under s 587; and (b) the Deputy President did not have jurisdiction under the dispute resolution procedure. It was also claimed that because the terms of the Maersk EA noted the prospect of a dispute going to the Full Bench, permission was not required. The appeal was considered by a Full Bench of the FWC in August 2019. 20 The Full Bench found that permission was required and refused permission to appeal. In the course of doing so it dealt in detail with the substantive grounds raised.
Application by Maersk in this Court 21 Having followed the process in the FWC, Maersk now brings an application in this Court in which it claims that the FWC did not have jurisdiction. It seeks a declaration that the award of the FWC has no legal effect and an order permanently restraining its enforcement. Maersk relies upon the two matters I have described as the basis for its claim. It says that it can raise those matters because this Court has jurisdiction to determine whether the FWC has acted outside the scope of its jurisdiction in conducting a private arbitration under the Maersk EA. It says that save in the exceptional case where there is clear and unmistakable evidence of authority being conferred for the arbitrator to determine the limits of the arbitrator's jurisdiction, the scope of that jurisdiction is a matter that may be raised in the Courts.
Application by Union to set aside the application by Maersk 22 The Union has brought an interlocutory application seeking orders that the originating application be set aside pursuant to r 13.01 of the Federal Court Rules 2011 (Cth). It is claimed that there is no jurisdiction to entertain the proceedings in this Court or that the proceedings are an abuse of process. It says that any issue as to the jurisdiction of the FWC was finally determined by the Full Bench.
The contentions advanced for the Union 23 Senior counsel for the Union accepted that the Maersk EA did not, in terms, confer authority on the FWC to determine the limits of its own jurisdiction as private arbitrator. Therefore, the award by the Deputy President was not final and binding to the extent that it purported to determine the two points described by both parties as raising jurisdictional questions. However, it was submitted that the conduct of Maersk in raising the jurisdictional questions before the Full Bench, a course in which the Union had concurred, had conferred on the Full Bench arbitral authority to determine those questions. It was said that the Full Bench had determined those questions adversely to Maersk and therefore there was a final and binding determination in the exercise of private arbitral authority that meant there was no jurisdiction for this Court to consider the matter. In the alternative it was said that it was an abuse of process for Maersk, having argued the matter before the Full Bench and lost, to now seek to re-agitate the same issues in this Court and to seek to raise new evidence in this Court in support of its claims.
There has been no final determination of jurisdictional questions by the Full Bench 24 For the following reasons, the contention that the Full Bench exercised arbitral authority to finally determine its jurisdiction as to the dispute should be rejected. 25 There was no claim that any of the statutory provisions concerning the review of arbitration decisions applied. The case was argued by reference to common law principles. This reflects the approach taken by the Full Courts in Duggan and in ALS Industrial Australia Pty Ltd. It was found to be the correct approach by Bromberg J in Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union [2015] FCA 1033 at [41]-[43]. 26 At common law, the authority of an arbitrator is commensurate with the terms of the agreement to submit to arbitration. However, I note that in construing the extent of arbitration provisions in commercial contexts, Courts generally take a broad, liberal and flexible approach which favours a construction that gives effect to the intention of the parties to submit their disputes to an arbitral process and, in doing so, will favour a construction which provides a single forum for adjudication: see Walter Rau Neusser Oel und Fett AG v Cross Pacific Trading Ltd [2005] FCA 1102 at [41]-[68] (Allsop J); and Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 at [56]-[63] (Martin CJ, Buss JA agreeing) but compare Rinehart v Welker [2012] NSWCA 95; (2012) 95 NSWLR 221 at [115] (Bathurst CJ); and Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13 at [19]-[21] (Kiefel CJ, Gageler, Nettle and Gordon JJ). 27 In this instance, on the present application, there is common ground that the two points identified by Maersk are jurisdictional points. Whether that description of their character might ultimately be accepted depends upon whether the two points fall outside the terms of the submission to arbitration expressed in the dispute resolution clause in the Maersk EA as construed in the context of s 186(6) (which requires the agreement to require or allow the identified arbitrator to settle disputes 'about any matters arising under the agreement'). Given the nature of the argument raised for the Union, it is the extent of arbitral authority conferred on the Full Bench that is in issue. 28 Where an issue is raised about the extent of the arbitral authority conferred upon an arbitrator then it is appropriate for the arbitrator to form a view as to the extent of such authority. However, that view is not final and binding because arbitrators cannot by their own decisions create and extend their own authority: TLC Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5; (2013) 251 CLR 533 at [12] (French CJ and Gageler J). Exceptionally, particular arbitration agreements may confer authority upon arbitrators to determine the extent of their own jurisdiction. However, such a position must be clearly established: Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs of the Government of Pakistan [2010] UKSC 46; [2011] 1 AC 763 at [24]-[26]. It is an approach that reflects the fact that it is unlikely that parties submitting matters for arbitration will clothe an arbitrator with an unqualified mandate to determine whatever the arbitrator considers should be determined. 29 As events have unfolded, it is the award by the Deputy President that continues to take effect, not any determination by the Full Bench. That is because the decision by the Full Bench was to refuse permission to appeal. In those circumstances, in the context of reviews of the exercise by the FWC of its statutory jurisdiction, it has been recognised that the decision of the Full Bench is confined to the refusal of permission to appeal. The substantive determination is made by the primary decision. These matters were addressed in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2016] FCAFC 169; (2016) 247 FCR 138 at [39], [45]; Broadspectrum (Australia) Pty Ltd v United Voice [2018] FCAFC 139; (2018) 265 FCR 134 at [41]; and Australian Mines and Metals Association Inc v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCAFC 223; (2018) 268 FCR 128 at [58]-[65]. 30 The same reasoning applies where the FWC is acting as a private arbitrator. Absent an appeal as of right, unless and until permission has been given to bring the matter before the Full Bench, the primary decision remains operative and effective. If permission is given then, even if the primary decision is confirmed, it is the decision of the Full Bench following its own consideration of the matter that determines the dispute. 31 It is clear that there was no right of appeal in this case. The Full Bench was correct to proceed on the basis that permission was required. Unless and until permission to appeal is given, it is the primary decision by the Deputy President that is effective and the Union accepts that the Deputy President had no authority to determine the limits of jurisdiction. Therefore, there has been no final and binding determination of any jurisdictional points concerning the decision by the FWC. 32 Even if (contrary to the above) the Full Bench did make an operative decision (or should have done so because there was a right of appeal), it could not take on additional private arbitral authority (not possessed by the Deputy President) to determine in a binding way the two points. The extent of the private arbitral authority of the Full Bench was determined by the Maersk EA. It did not confer authority upon the FWC to determine the limits of its own jurisdiction. Even if, after the primary decision, the parties had agreed by clear and express terms that the Full Bench had arbitral authority to determine the two points as jurisdictional matters, the Full Bench could not take on such an arbitral appointment. Its statutory authority did not extend to dealing with a dispute concerning an enterprise agreement that was agreed outside the statutory process for the formation of an enterprise agreement. Further, the statutory authority to undertake an appeal in a private arbitration was confined by the terms of s 738. It did not include a case where, following a primary decision by the FWC under the approved dispute resolution provision of an enterprise agreement, the parties agreed to add some other dispute to be considered by the Full Bench exercising appellate authority. 33 Further, even if there was authority for the FWC, after the primary decision, to accept an arbitral appointment to determine the scope of its own jurisdiction (a matter about which I express no view) then any such appointment would be a new arbitral appointment and it appears that it would need to be commenced by a new application. There was no such new application. Rather, matters in the Full Bench proceeded only as an appeal against the primary decision by the Deputy President. 34 It follows that when the Full Bench of the FWC was asked to deal with jurisdictional matters it was invited to do no more than any private arbitrator is asked to do when a party to the arbitration raises a question as to the limits of arbitral authority. As a matter of practicality, in such instances the arbitrator forms a view about jurisdiction, but that view is not binding and a party claiming that the arbitrator has no authority to determine a particular matter may challenge the jurisdiction in an appropriate court. That is the course being followed by Maersk. 35 Maersk argued, in addition, that in fact there was actually no determination by the Full Bench of the two points that it says were outside its jurisdiction. However, even if that was so, that would not provide a foundation for the present application brought by Maersk in this Court. Rather, it would mean that the authority to determine the jurisdictional questions had been referred by agreement to the Full Bench, but it had not yet performed its obligation as arbitrator in respect of that reference. Therefore, that point is not germane to the present proceedings.
There is no abuse of process 36 As Maersk is doing no more than pursuing a right that it has to pursue a claim in an appropriate court to the effect that the FWC as a private arbitrator has acted outside its authority, there is no abuse of process. It was appropriate for Maersk to raise the jurisdictional issues both before the Deputy President and the Full Bench. In both instances it was doing no more than inviting the FWC as a private arbitrator to consider whether there was jurisdiction. Although it was appropriate for Maersk to raise the issue and for it to be addressed by the FWC, its decision would not be binding if it concerned a matter that fell outside the arbitral authority conferred by the enterprise agreement. As Maersk claims that the decision on the two points was of that character it raises a claim of a kind that is within the jurisdiction of this Court. Having properly pursued the matter in the FWC, it cannot now be criticised for having done so. 37 This is not an instance where the jurisdictional point was held in abeyance. Different issues may arise where the whole process is allowed by a party to unfold within the FWC and a jurisdictional point is raised for the first time after the process has been concluded adversely to the party raising the point. Further, if the jurisdictional point was colourable or devoid of merit or was contrary to a concession of jurisdiction in the FWC then issues of abuse of process may arise. But there is no claim made by the Union on the present application that the two points are not jurisdictional in character or that they were held back in reserve to be raised if matters were determined adversely to Maersk in the FWC. 38 Further, the nature of the claim is such that it is confined to the jurisdictional question. It does not open up a re-consideration of the merits of the dispute as adjudicated by the Deputy President and the Full Bench. 39 The Union says that there is an abuse because Maersk is seeking to introduce in this Court evidence as to the two points that is of a kind that was not advanced before the FWC. The submission was advanced by the Union to support a claim that the whole proceedings are an abuse, not that it would be an abuse to allow the evidence to be received. Issues may arise in the proceedings in this Court as to whether such evidence may be admitted and as to whether issues as to the jurisdiction of the FWC fall to be determined on the basis of the factual position advanced before the FWC. An issue estoppel may arise by reason of the consideration of findings made by the FWC as to the factual position. I express no view as to these matters which were not raised by the application. It is sufficient to observe that these are not reasons why the whole of the current proceedings are an abuse. 40 Relatedly, there is a reference in the written submissions of the Union to a claim of estoppel. If there is any such claim available then it is a claim that is either a defence to the claim by Maersk or concerns the evidence that may be led by Maersk on the application in this Court. It is not a matter that may be advanced to support the nature of the interlocutory application. 41 Maersk is not seeking to re-litigate matters within the jurisdiction of the FWC. It is only matters within its jurisdiction that have been determined. Therefore, the submission by the Union that Maersk is seeking to re-litigate matters that were determined by the FWC should be rejected. 42 It follows that there is no abuse of process.
Conclusion 43 For the above reasons, the interlocutory application dated 12 March 2020 should be dismissed. There should be orders made to programme the matter to a hearing. I will make orders for the parties to bring in an agreed minute, or competing minutes if agreement cannot be reached, as to the orders to be made on the interlocutory application and the orders programming the matter for hearing. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.
Maersk Crewing Australia Pty Ltd
Construction, Forestry, Maritime, Mining and Energy Union
[2013] WASCA 66
(2016) 247 FCR 138
(2018) 268 FCR 128
(2015) 235 FCR 305
(2018) 265 FCR 134
(2017) 251 FCR 1
(2016) 244 FCR 178
(2012) 95 NSWLR 221
(2013) 251 CLR 533
(2014) 222 FCR 152
The Union's interlocutory application dated 12 March 2020 is dismissed; orders made for parties to bring in agreed or competing minutes as to interlocutory orders and programming the matter for hearing by 17 May 2020 (Reasons [43]; Orders).