Discussion
51 Part 3-1 of the Act deals with general workplace protections. Section 340(1) prohibits a person from taking adverse action against another person because he or she has exercised a workplace right. Section 341 defines "workplace right" to include, by s 341(1)(c), if the person is an employee, the ability to make a complaint in relation to his or her employment. Section 342(1) sets out the meaning of adverse action to include, by item 1(a), dismissal of an employee.
52 Division 8 is entitled "Compliance" and sets out separate legislative regimes for dealing with contraventions of Part 3-1 involving dismissal and contraventions of Part 3-1 not involving dismissal.
53 Subdivision A of Division 8, which is entitled "Contraventions including dismissal", incorporates ss 365-371.
54 Section 365 provides that if two circumstances exist, viz:
1. the person has been dismissed; and
2. the person (or an industrial association entitled to represent the person's individual interests) alleges that the person was dismissed in contravention of the Part;
then the person (or the industrial association) may apply to FWA for FWA to deal with "the dispute".
55 The dispute referred to in s 365 is not defined elsewhere in the legislation. It is simply assumed to co-exist with a person's dismissal allegedly in contravention of Part 3-1. "The dispute" in s 365 may thus be characterised as a dispute concerning a person's dismissal allegedly in contravention of Part 3-1.
56 Section 365 provides that the dismissed person (or the industrial association) may apply to FWA for it to deal with the dispute. Section 366 specifies that the FWA application must be made within 60 days after the dismissal took effect, or such other period as FWA allows.
57 Section 368 requires FWA to conduct a conference to deal with the dispute. Note 2 to s 368 states that FWA may deal with the dispute by mediation, conciliation or making a recommendation.
58 Section 369 provides that FWA, if satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful, must issue a certificate to that effect. Section 370(1) requires FWA to advise the parties if it considers that a general protections court application in relation to the dispute would not have a reasonable prospect of success.
59 Section 370(2) of the Act defines a "general protections court application" as an application under Division 2 of Part 4-1 for orders in relation to a contravention of Part 3-1.
60 Section 371(1) of the Act provides that a person who is entitled to make an application under s 365 for FWA to deal with a dispute must not make a general protections court application in relation to the dispute unless (subject to s 371(1)(b)), FWA has issued a certificate under s 369 in relation to the dispute.
61 The certificate is thus (subject to s 371(1)(b)) a precondition of the making of a general protections court application in relation to the dispute. The Court has no jurisdiction to entertain such an application absent the certificate.
62 The respondent maintained that "the dispute" bore the same meaning throughout all provisions of Subdivision A and thus "the dispute" in relation to which the court application referred to in s 371(1) is made must, in all essential and substantial aspects, be limited and conform to "the dispute" as expressed or described in the FWA application.
63 The introductory reference to "the dispute" is contained in s 365, the first section of Subdivision A. Section 365 identifies the dispute at a high level of generality by reference to the occurrence of a person's dismissal alleged to be in contravention of Part 3-1, and permits an application to FWA to deal with "the dispute" thus identified. Section 365 does not expressly, or, in my opinion, implicitly provide that "the dispute" precisely coincides with the content of the FWA application. Rather, it permits the application to be made to FWA to deal with the dispute.
64 While there are a number of different potential bases of contravention of Part 3-1, the Act does not prescribe the content, essential inclusions or level of detail of the application which may be made to FWA under s 365. The Form F8 headed "Application for FWA to Deal with a General Protections Dispute - Fair Work Act 2009 - ss 365, 372" completed by the applicant in this case is a short document setting out basic questions, including "Alleged contravention(s) of Part 3-1", "Section(s) allegedly contravened" and "Description of alleged contravention(s)". In the present case, the applicant's description was contained in an annexure. In practice, the dispute identified in general terms under s 365 is likely to be further elaborated or described not only in the FWA application but also in the respondent's response (if any) and/or the FWA conference conducted to deal with the dispute.
65 The respondent's construction, however, requires the references to "the dispute" in s 371(1) to be read as "the dispute described or identified in the FWA application" or "the dispute as limited to the applicant's substantial claims in the FWA application".
66 Various difficulties and potential inconsistencies attend that construction.
67 First, s 371(1) does not expressly so state, and the language of the relevant provisions, construed in context, do not support the construction. The introduction of words which narrow the meaning of "the dispute" would effectively expand the restriction imposed by s 371(1) on an applicant's right to access the court. The court should be slow to uphold an implication or oblique construction which magnifies the scope of a prohibition on curial access.
68 Section 366 provides for the making of an application under s 365 and s 368 provides that FWA shall conduct a conference to deal with the dispute.
69 While in practice the dispute identified in s 365 may be elaborated by the applicant in the FWA application and by both parties in the context of the FWA process, including the FWA conference, the legislation does not, in terms, require such elaboration. Neither ss 366 nor 368 defines, identifies or describes "the dispute" differently from s 365, which does not expressly state or indicate that "the dispute" is limited to the applicant's substantive claims in the FWA application.
70 If, however, "the dispute" in s 371(1) is limited to the applicant's substantial claims in the FWA application, in my opinion, a general protections court application made "in relation to" that dispute could validly include new, additional or different claims from those in the FWA application, provided that the essential basis of the dispute in the FWA application remained.
71 It is well established that the phrase "in relation to" is of wide import. In Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ stated at [87]:
The words "relate to" are extremely wide. They require the existence of a connection or association between the content of the Standard and the Australian content of programs. What constitutes a sufficient connection or association to form the required relationship is a matter for judgment depending on the facts of the case. No doubt the association or connection must be a relevant one in the sense that it cannot be accidental or so remote that the Standard has no real effect or bearing on the Australian content of programs.
(citations omitted)
72 In O'Grady v Northern Queensland Company Ltd (1990) 169 CLR 356, the High Court acknowledged the width of the phrase "in relation to" while recognising that it may be circumscribed by context. Brennan and McHugh JJ, who were in the minority, concluded that the appeal should be allowed. Brennan J stated at [365]:
The phrase "in relation to" is wide in its connotation and cannot be limited by a priori formulae designed to exhaust its meaning.
73 McHugh J stated at [376]:
The prepositional phrase "in relation to" is indefinite. But, subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters.
74 Dawson, Toohey and Gaudron JJ allowed the appeal.
75 Dawson J stated at [367]:
The words "in relation to", read out of context, are wide enough to cover every conceivable connexion. But those words should not be read out of context…
76 Toohey and Gaudron JJ stated at [374]:
Although "in relation to" is an expression of broad import, in context with "arising" it presupposes a direct connexion between a presently existing action, suit or proceeding and mining or a mining tenement, not merely an incidental connexion.
77 In my opinion, the context of Subdivision A does not support the limitation of the dispute in s 371(1) to that contained in the FWA application. Moreover, the phrase "in relation to" indicates, in context, that there is no requirement for a strict nexus between the dispute as contained in the FWA application and the claims in the court application.
78 So to hold would endorse a one-sided and temporally limited characterisation of "the dispute" comprising only the claims and contentions of the applicant set out in the FWA application. It not only excludes developments after the issue of the certificate, but takes no account of the respondent's possible claims or the possible enlargement or alteration of either party's claims in the FWA conference and conciliation process. If the dispute were restricted to its content prior to the issue of the certificate, there is no obvious reason to limit it to the applicant's claims made at the outset in the FWA application.
79 Further, as a respondent does not make the FWA application or court application and is not, in terms, subject to the prohibition in s 371(1) of the Act, while on the respondent's construction, the court would lack jurisdiction to permit an applicant to expand or amend his or her claims, it is unclear that a similar restriction would apply to a respondent.
80 In addition to raising such potential inconsistencies, in my view, the respondent's construction is not, on balance, supported by the apparent aims of Subdivision A.
81 The regime established in Subdivision A of Division 8 aims, where possible, to avoid litigation about allegedly contravening dismissals by mandating (as a prerequisite to litigation) a preliminary, less costly and relatively informal process in FWA to facilitate conciliation and non-curial resolution.
82 If the parties' respective cases are comprehensively and accurately presented at the preliminary stage, the FWA process may be more effective and the prospect of resolution may be maximised.
83 If the respondent is not notified by the FWA application or in the FWA conference of substantive claims by the applicant, as Coker FM observed in Cepu, the respondent would have no opportunity to take account of such matters prior to the conference or commencement of the court proceeding.
84 The respondent's construction does not appear to ensure that an applicant would be fully informed of a respondent's claims. Assuming, however, that the FWA conference and conciliation process would be more effective if a respondent is fully informed of an applicant's claims, that advantage could be achieved only by requiring an exhaustive and accurate presentation of the applicant's case at a preliminary, informal stage primarily focussed on conciliation.
85 The respondent's construction would avert a significant disconformity between the elements and details of the applicant's case in the FWA application and a subsequent court proceeding. On one view, such disconformity might circumvent the legislative aim that there be an opportunity to resolve the dispute without resort to litigation. The degree of any divergence is, however, limited by the fundamental requirement that the dispute must concern the same specified dismissal alleged to in contravention of Part 3-1. Nor is mediation after the issue of the court application precluded.
86 More importantly, a requirement that the applicant's principal claims in a court application first be comprehensively adumbrated in the FWA application appears inconsistent with the effective operation of the FWA application and contemplated process.
87 The FWA application must (subject to any extension) be made within a relatively short period from the date on which the dismissal takes effect. No formal statement akin to a pleading is prescribed and the legislation neither assumes nor requires the involvement of legal representatives.
88 If misstatement or omission from the FWA application excluded a claim from a subsequent court application, there would be pressure precisely to articulate claims and unselectively to include all potentially relevant matters at a preliminary stage. The applicant would in effect be required exhaustively and accurately to frame his or her case in essentially final form at the FWA application stage, in order to avoid the prohibition on litigation.
89 The omission of a significant claim from the FWA application would not, on the respondent's construction, absolutely bar its inclusion in a subsequent court application, as the applicant might secure an additional certificate and any necessary extension of time from FWA. Such a course would, however, be uncertain and cumbersome. The FWA application and process could constitute a draconian hurdle, rather than affording the opportunity for conciliation in a relatively informal forum.
90 Therefore, while on the respondent's construction the FWA conference would be more comprehensively based, and a respondent, at least, fully informed of an applicant's ultimate case, the informal, essentially preliminary character of the FWA application and process would be significantly compromised.
91 In my opinion, on the better view, "the dispute" in s 371(1) in relation to which the making of a general protections court application is prohibited (subject to the specified conditions) is not limited to the applicant's substantive claims made in the FWA application.
92 If, contrary to that view, the relevant dispute is thus limited, a general protections court application "in relation to" that dispute could legitimately include new claims, additional to and different from those in the FWA application, within the jurisdiction conferred by the issue of a certificate under s 369 in relation to the dispute.
93 In the present case, the statement of claim is, in my view, a general protections court application which is "in relation to" the dispute set out in the applicant's FWA application. While one of the three additional complaints in the statement of claim is apparently a repetition of the substance of a complaint referred to in the FWA application, it was made to a different person on a later date. The other two additional complaints are not identifiable in the FWA application.
94 Nevertheless, all three additional complaints clearly arise from the same factual matrix and, as part of the narrative, would (even if excluded as an independent basis for relief) be relevant and admissible in relation to claims based on the two complaints in the FWA application. In my opinion, however, because the general protections court application including claims based on the three additional complaints is "in relation to" the dispute contained in the applicant's FWA application, the court has jurisdiction even if (contrary to the views expressed above) the narrow meaning of dispute advocated by the respondent applies.
95 It follows that, in my opinion, the court has jurisdiction in relation to the applicant's claims based on the three complaints which were not alleged in her FWA application.