Weerasinghe v Prism Grafix Pty Ltd [2009] FMCA 728

1. On day two of the hearing, after Mr Weerasinghe had led all of his evidence, Prism Grafix made an oral interlocutory application[5] to dismiss the application.
2. The interlocutory application was made on the basis that the jurisdictional pre-requisites in s.659(2)(e) of the WR Act had not been made out in evidence by Mr Weerasinghe.[6]
3. This Court has an obligation to deal with matters in the exercise of judicial power informally, expeditiously and economically, and given the nature and objects of this Court,[7] it was determined that the Court would hear the interlocutory application. It is the Court's first duty to be satisfied that it has jurisdiction to deal with the subject matter of the proceedings,[8] and to deal with any objection to jurisdiction as early as possible to ensure that it does not embark on a hearing in respect of which it has no jurisdiction.[9]

1. Section 659(2)(e) of the WR Act provides as follows:
   • (2) Except as provided by subsection (3) or (4), an employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:
   • ...
   • (e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;
   • ...

1. There are three discrete circumstances in which in s.659(2)(e) of the WR Act operates, as set out by the Full Court of the Federal Court in Zhang v Royal Chemical Institute Inc:
   • 23. Three circumstances can trigger the operation of the proscribed reason in s.170K(2)(e).[10] First, the filing of a complaint by the employee. Second, participation by the employee in proceedings against an employer. In both those cases they must involve alleged violation of laws or regulations by the employer. The punctuation supports that construction. Third, recourse by the employee to competent administrative authorities will trigger the operation of the section. All three circumstances are directed to complaints to parties other than the employer.
   • ...
   • 25.... A complaint can only be filed somewhere and with someone other than the employer and probably only to a Court or Tribunal...[11]
2. In CSR Viridian Ltd (formerly Pilkington Australia Ltd) v Claveria, it was argued that:
   • 33. ...a worker should not be regarded as having had recourse to a competent administrative authority unless the substance of his or her complaint to such an authority was that there had been, or might well have been, a violation of laws or regulations (although it was not submitted that he or she need have any more than the most general of notions as to the identification of the laws or regulations concerned). [12]

In this respect, the Full Court observed as follows:

34. There are several considerations which count against the appellant's construction of Art 5(c), or of s 659(2)(e) which is based on it. First, the grammatical arrangement of the elements in the provision (whether with or without the internal punctuation) suggests that the qualifier "involving alleged violation of laws or regulations" applies only to the first and second substantive elements. Secondly, the amendment by which the words "or recourse to competent administrative authorities" were added to the draft of the proposed provision by the Committee required, specifically, that the words be inserted "at the end of subparagraph (c)", making it tolerably clear that it was no accident that those words were not inserted before, and therefore grammatically qualified by, the requirement of an allegation of a violation of laws or regulations. Thirdly, the workers' representatives on the Committee had pressed, unsuccessfully, for the omission of that requirement, yet they supported the amendment. It is unlikely that they would have done so, at least without apparent reservation (of which none is recorded), if it was their view that the new words, like the earlier part of the draft, were also subject to the requirement. Fourthly, while the first two substantive elements of the provision refer to quite generic procedures, and would clearly need some more specific point of reference to define their scope in practical settings, the third (ie that concerning the competent administrative authorities) refers to a person or body of a particular character. There is not then the same need to limit the functions of that person or body to those that involve dealing with violations of laws or regulations. And fifthly, as the facts of the present case demonstrate, to read the third substantive element of Art 5(c) as requiring that there be an allegation of a violation of laws or regulations would be to introduce great scope for uncertainty in the practical operation of the provision. In the case of the filing of a complaint or the participation in proceedings, the nature of the complaint or of the proceedings will appear from the terms of documentation the existence of which is implied by those words. However, the process of divining whether a particular "recourse" involves such an allegation will often be, and in the present case would have been, problematic in the extreme. Counsel for the appellant accepted that the worker, in having his or her "recourse", need not articulate the legislative basis of the allegation which was said to be necessary; yet they submitted that, on the facts of the present case, the respondent should not be regarded as having made such an allegation merely by complaining about his employer's conduct which, if viewed in a certain way, might well have amounted to a breach of s 21 of the OHS Act. We cannot accept that the Committee (or the Parliament) intended that the norm of conduct in question should be so uncertain in its practical operation.

35. For the foregoing reasons we reject the appellant's submission that the "recourse" to which Art 5(c) and s 659(2)(e) refer is limited to such as involves an allegation of a violation of laws or regulations. We agree with her Honour that, when the respondent contacted the branch secretary of the Union on 24 January 2007, he had "recourse" to the Union, whether or not his then complaint should be viewed as involving an allegation of a violation by the appellant of laws or regulations. However (and here we return to the appellant's first ground of appeal), that construction of Art 5(c) makes it the more unlikely that the Committee intended that the concluding words should be of broad or indeterminate meaning. Before developing that proposition, it is convenient to consider the meaning of the three words involved in the expression "competent administrative authority".[13]

1. It is therefore clear that in order to meet the jurisdictional prerequisite of a claim at least one of the three circumstances in s.659(2)(e) of the WR Act must be operative.

Recourse to a competent administrative authority

1. The first two of the three discrete jurisdictional pre-requisites of s.659(2)(e) of the WR Act, namely:
   1. the filing of a complaint to a Court or Tribunal; and
   2. participating in proceedings,

1. There is a dispute about whether the third jurisdictional pre-requisite in s.659(2)(e) of the WR Act, namely, whether or not there was recourse to a competent administrative authority, is operative and, in particular, whether Mr Weerasinghe had "recourse".

1. Before dealing with what constitutes "recourse" it is helpful to review what the Federal Court has found to be a "competent administrative authority".
2. The meaning of "competent administrative authority" was discussed in He as follows:
   • 44. ...Section 170CK(2)(e) is directed to the making of complaints to outside authorities, either by way of instituting proceedings against an employer, or by way of making allegations to officials who are empowered to investigate such allegations. The ground would not be established by the making of complaints directly to the employer alone.[15]
3. The Court understands the reference to "...making allegations to officials who are empowered to investigate such allegations" as referring to recourse to competent administrative authorities. He therefore stands as authority for the proposition that s.659(2)(e) of the WR Act requires a complaint to be made to an outside authority, that is, not the employer. Therefore, the employer is not a "competent administrative authority".[16]
4. A "competent administrative authority" has also been described as follows:
   • ...Secondly, the expression "competent administrative authorities" has no technical meaning or fixed application. It may signify no more than an "appropriate body" (other than a legislative or judicial body or the employer) in the ratifying State to receive the communication of an allegation of misconduct on the employer's part. A body will be appropriate in this context if it has the legal capacity to manage or suitably address the allegation in some way (whether by investigation, a dispute resolution process or otherwise).
   • To approach the expression in this way is in keeping with its ordinary meaning. I refer in this connection to English language dictionaries, such as the Oxford English Dictionary or The Macquarie Dictionary. The expression "competent administrative authorities" is plainly a compound one. Bearing in mind the terms, history and object of the Convention, as well as the specific object of Art 5(c), it apparently signifies bodies (other than the employer) within the ratifying State having the legal capacity to manage, deal with, or suitably address the allegation in some way (other than by judicial decision or legislative action). In this context, an allegation of misconduct on the employer's part might be managed or suitably addressed in a variety of ways, including by investigation, reporting, prosecution, engagement of a dispute resolution process, making a determination or recommendation, or providing information and advice. I reject the respondent's submission that the expression "competent administrative authorities" refers only to "an authority with the capacity and the right to determine a controversy which is properly raised with it". This is to adopt an unjustifiably narrow approach, which is at odds with the history of Art 5(c), and the aim of the Termination of Employment Convention and Art 5(c). The purpose of Art 5(c) is best served if a liberal interpretation of the expression "competent administrative authorities" is adopted, because it extends to an employee the protection against illegitimate retaliatory termination that Art 5(c) was designed to give.[17]
5. In Claveria the critical question was whether the union was properly characterised as a "competent administrative authority".[18] The Federal Court observed that a trade union will not be a "competent administrative authority" for every grievance.[19] Having regard to:

1. the union's rights under a certified agreement; 2. the union's standing and statutory rights under the WR Act; and

1. the rights of the unions' representatives under the relevant State occupational health and safety legislation,

the Federal Court held in Claveria that the union was "properly regarded as a body with the legal capacity to manage, deal with and appropriately address the complaint or grievance ... communicated to it" by the employee, and that it followed that it was therefore a "competent administrative authority" to which the employee might have recourse.[20]

1. An appeal against Claveria was allowed in CSR Viridian.
2. In CSR Viridian the majority described a "competent administrative authority" as follows:
   • 48. ...(1) a governmental or public body or official, (2) exercising a power or function of an executive, ministerial or administrative nature (rather than, for example of a legislative or judicial nature), and (3) having competence to receive the complaint as to which the worker has recourse to it.[21]
3. Each of the Judges in CSR Viridian found that there was nothing in any of the matters referred to in Claveria as giving the union the status of a competent administrative authority which warranted the union being found to be a competent administrative authority.[22]

1. Recourse is defined as "resorting or betaking of oneself to possible source of help",[23] or "the thing, means, or person applied or resorted to for help".[24]
2. Recourse is not limited to matters involving allegations of a violation of laws or regulations, as is the case with the first two jurisdictional prerequisites in s.659(2)(e) of the WR Act.[25]
3. In Claveria, it was found that the following constituted recourse to a competent administrative authority:
   • "Mr Claveria's communication to Mr Skourdoumbis about his treatment at Pilkington's factory and his request for assistance, which was taken up by the union and led to Mr Seneviratne requesting Mr Dunstan for a meeting to discuss Mr Claveria's bullying and harassment allegation would constitute 'recourse to a competent administrative authority' providing the union is to be regarded as such an authority."[26]
4. Although the Full Court in CSR Viridian did not consider that the union was a competent administrative authority, if it had been, there would have been "recourse", for as the majority observed:
   • "We agree with her Honour [Kenny J at first instance in Claveria] that, when the respondent contacted the branch secretary of the Union ..., he had 'recourse' to the Union..."[27]
5. An earlier judgment of the Industrial Relations Court of Australia where it was said:
   • "The applicant's participation in the union's investigation of the alleged award breaches, and the service of a letter of demand on his behalf by the union, a registered organisation under the Act, is comprehended within the phrase 'recourse to competent administrative authorities'"[28]

is not inconsistent with CSR Viridian insofar as it relates to the meaning of "recourse".

1. Mr Weerasinghe was employed by Prism Grafix in early August 2006, having initially arrived on a business (short stay) visa under subclass 456 of Schedule 2 of the Migration Regulations 1994 (Cth)[29] and, thereafter, receiving a business (long stay) working visa under subclass 457 of Schedule 2 of the Migration Regulations.[30]
2. On 24 August 2006 Mr Weerasinghe signed an Australian Workplace Agreement.[31]
3. In the months after the commencement of Mr Weerasinghe's employment by Prism Grafix a number of employees from other countries, also working under 457 Visas, were employed by Prism Grafix. Most notably, they included six other Sri Lankan nationals.[32]
4. Mr Weerasinghe received warnings in or about December 2006 and March 2007 related to the quality of his work.[33]
5. In May 2008 Mr Hennings, an officer of the Department of Immigration and Citizenship,[34] visited the Prism Grafix workplace and spoke to all of the Sri Lankan employees.[35] Mr Weerasinghe participated in these discussions and acted as a translator/facilitator for his fellow Sri Lankan employees.[36] It is apparent that the visit of Mr Hennings from DIAC was not initiated at the behest of Mr Weerasinghe.[37]
6. At the meeting in May 2008 a number of matters which were of concern to the Sri Lankan nationals who were employed by Prism Grafix, and who were working under 457 Visas, were discussed. They included alleged failure to pay overtime and minimum salary levels, and the retention of the employees' passports by the managing director of Prism Grafix.[38]
7. Apart from translating and facilitating interchanges between Mr Hennings of DIAC and the other Sri Lankan employees, it is not apparent that there was any additional interchange of information or communication between Mr Hennings of DIAC and Mr Weerasinghe at this first meeting.
8. On or about 27 June 2008 there was a further meeting with Mr Hennings of DIAC at Prism Grafix.[39] The meeting lasted for somewhere between two and three hours.[40] Mr Weerasinghe was one of a number of Sri Lankan employees (probably five) at this meeting, where Mr Weerasinghe spoke on behalf of all the employees in Sinhalese to the interpreter who then translated for Mr Hennings.[41] Mr Weerasinghe did ask, on behalf of two other Sri Lankan employees, what would happen if they (the other two Sri Lankan employees) were terminated.[42]
9. Mr Weerasinghe gave evidence that at the meeting he:
   • "...asked Mr Hennings because he had to take my vacation leave, if I go on vacation leave what will - whether management can terminate me or that they can take someone else in my place. I enquired to Mr Hennings to that."[43]
10. When Mr Weerasinghe was asked why he had asked Mr Hennings that he said:
    • "...because the situation had changed from since the first meeting and I was always under pressure and I felt that the management was pressurising us too much and that due to the management was not that favourable to me."[44]
11. Mr Weerasinghe went on to say that Mr Hennings also gave him his business card and told him to contact him in the future whilst telling him that he could apply for vacation leave.[45]
12. Prism Grafix did not take issue with whether DIAC was a competent administrative authority. The only issue in dispute was whether or not there was "recourse" to DIAC as a competent administrative authority.[46]

1. The evidence shows that at the meeting with DIAC on 27 June 2008, Mr Weerasinghe asked questions of and received answers from Mr Hennings, in relation to other employees and to himself. In particular, Mr Weerasinghe asked questions concerning his own entitlement to take vacation leave, and whether he could be replaced or terminated as a consequence of taking vacation leave. He asked this question because he felt that there was pressure from management following the first meeting. He was told by Mr Hennings of DIAC that he could apply for vacation leave, and Mr Hennings left his business card with Mr Weerasinghe to facilitate possible future contact. This conduct constitutes recourse by Mr Weerasinghe to a competent administrative authority, namely DIAC, because he has sought the help or assistance of DIAC in relation to the vacation leave issue.
2. Because of the direct nature of the recourse had by Mr Weerasinghe to DIAC, it is unnecessary to deal with whether or not recourse can be constituted in circumstances where the means of recourse is not as direct, as it was by reason of the questions asked of Mr Hennings about vacation leave by Mr Weerasinghe on 27 June 2008. Those questions are sufficient to establish that a jurisdictional prerequisite has been met. Whether conduct going beyond that also constitutes "recourse" is a matter which can be more fully argued having regard to all of the evidence, once completed.

1. The Court concludes that Mr Weerasinghe has satisfied the relevant jurisdictional prerequisite in s.659(2)(e) of the WR Act, in that he did have "recourse" to a competent administrative authority by his conduct in asking questions about his entitlement to take vacation leave at the meeting with DIAC on 27 June 2008. There will be a declaration accordingly, and the interlocutory application by Prism Grafix will be dismissed.
2. The Court will hear the parties as to:
   1. costs, if any; and
   2. directions for further hearing of the application.

I certify that the preceding 40Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !fortyforty (40) paragraphs are a true copy of the reasons for judgment of Lucev FM

[4] Pursuant to ss.663(1) and 665(1)(a) and (c) of the WR Act.

[7] Federal Magistrates Act 1999 (Cth), ss.3 and 42; Federal Magistrates Court Rules 2001 (Cth), r.1.03.

[8] R v Bolton [1841] EngR 193; [1835-42] All ER Rep 71 at 73-74 per Lord Denman CJ; Federated Engine-Drivers & Firemen's Association v Broken Hill Proprietary Co Ltd [1911] HCA 31; (1911) 12 CLR 398 at 415 per Griffith CJ ("FEDFA"). See also FEDFA at 428 per Barton J and 454 per Isaacs J; Re Boulton; Ex parte Construction, Forestry, Mining and Energy Union (1998) 73 ALJR 129 at 133 per Kirby J; Segler v Child Support Registrar [2009] FMCA 41; (2009) 223 FLR 191 at 196 per Lucev FM; [2009] FMCA 41 at para.20 per Lucev FM.

[9] Stevenson v Barham (1977) 136 CLR 190 at 202 per Mason and Jacobs JJ.

[10] Section 170K(2)(e) is now s.659(2)(e) of the WR Act.

[11] [2005] FCAFC 99; (2005) 144 FCR 347 at 351 per Lander J; [2005] FCAFC 99 at paras.23 and 25 per Lander J (with whom Spender and Kenny JJ agreed: FCR at 348, FCAFC at paras.1 and 2) ("Zhang").

[12] [2008] FCAFC 177; (2008) 171 FCR 554 at 566 per Goldberg and Jessup JJ; [2008] FCAFC 177; (2008) 177 IR 147 at 158 per Goldberg and Jessup JJ; [2008] FCAFC 177 at para.33 per Goldberg and Jessup JJ ("CSR Viridian").

[13] CSR Viridian FCR at 566-567 per Goldberg and Jessup JJ; IR at 158-159 per Goldberg and Jessup JJ; FCAFC at paras.34-35 per Goldberg and Jessup JJ.

[15] He v Lewin & Ors [2004] FCAFC 161; (2004) 137 FCR 266 at 280 per Gray and Mansfield JJ; [2004] FCAFC 161 at para.44 per Gray and Mansfield JJ ("He"). See also CSR Viridian FCR at 562 per Goldberg and Jessup JJ; IR at 154 per Goldberg and Jessup JJ; FCAFC at para.21 per Goldberg and Jessup JJ.

[16] See also the extract from Zhang cited at para.7 above.

[17] Claveria v Pilkington Australia Ltd [2007] FCA 1692; (2007) 167 IR 444 at 469 per Kenny J; [2007] FCA 1692 at paras.106-107 per Kenny J ("Claveria").

[18] Claveria IR at 470 per Kenny J; FCA at para.109 per Kenny J.

[19] Claveria IR at 472 per Kenny J; FCA at para.119 per Kenny J.

[20] Claveria IR at 474 per Kenny J; FCA at para.127 per Kenny J.

[21] CSR Viridian FCR at 573 per Goldberg and Jessup JJ; IR at 165 per Goldberg and Jessup JJ; FCAFC at para.48 per Goldberg and Jessup JJ ("CSR Viridian").

[22] Those factors relied upon in Claveria are outlined at para.16 above. See CSR Viridian FCR at 557 per Gray J; IR at 150 per Gray J; FCAFC at para.6 per Gray J; FCR at 567-577 per Goldberg and Jessup JJ; IR at 160-169 per Goldberg and Jessup JJ; FCAFC at paras.37-59 per Goldberg and Jessup JJ.

[23] The Concise Oxford Dictionary (7th ed.) (Oxford: Oxford University Press, 1982) p.867.

[24] The Shorter Oxford English Dictionary on Historical Principles (3rd ed) (Vol II) (Oxford: Oxford University Press, 1973) p.1767.

[25] CSR Viridian FCR at 566-567 per Goldberg and Jessup JJ; IR at 159 per Goldberg and Jessup JJ; FCAFC at paras.34-35 per Goldberg and Jessup JJ.

[26] Claveria IR at 471 per Kenny J; FCA at para.114 per Kenny J.

[27] CSR Viridian FCR at 567 per Goldberg and Jessup JJ; IR at 159 per Goldberg and Jessup JJ; FCAFC at para.35 per Goldberg and Jessup JJ, agreeing with the finding in Claveria.

[28] Catusanu v Ray's Guard Security Services [1997] IRCA 240 per Murphy JR, cited in CSR Viridian FCR at 562 per Goldberg and Jessup JJ; IR at 155 per Goldberg and Jessup JJ; FCAFC at para.23 per Goldberg and Jessup JJ.

[29] "Migration Regulations".

[30] "457 Visa"; Transcript at pp.11 and 31.

[31] Transcript at pp.12-13; exhibit A1.

[33] Transcript at pp.22, 31, 40 and 56-57; exhibits A3, R1 and R2.