| [2020] FWCFB 4514 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Ms Virginia Wills v Grant, Marley & The Government of New South Wales, Sydney Trains and Another
(C2020/5725)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 28 AUGUST 2020 |
Appeal against decision in transcript of Deputy President Clancy at Melbourne on 22 July 2020 in matter AB2020/472.
[1] The matter before us is an appeal from a decision of Deputy President Clancy in a Part 6–4B proceeding in which the Deputy President refused to grant an application by Ms Wills (the Appellant) for an interlocutory order. The relevant background may be shortly stated.
[2] The Appellant is currently employed by the Government of New South Wales pursuant to an employment agreement dated 25 June 2015, in the position of Head of Investigations, Sydney Trains and is responsible for coordinating and overseeing investigations into allegations of misconduct against employees of Sydney Trains.
[3] At a meeting held on 18 March 2020, the Appellant was handed correspondence which directed her not to attend work, as an investigation was being conducted into allegations against her. The Appellant was then directed to hand over her identification card, mobile phone, laptop and iPad. She was escorted back to her office to collect her personal possessions, and then escorted into the carpark.
[4] On 1 June 2020 the Appellant received correspondence from Mr Marley, Associate Director, Transport for NSW, setting out 15 allegations relating to events that allegedly occurred over a period of 4 years (Letter of Allegations). The Letter of Allegations required the Appellant to provide a response within 7 days of the date of the letter.
[5] On 5 June 2020, the Appellant’s solicitors requested an extension of time to respond to the Letter of Allegations, access to her work laptop and copies of key documents which were said to be essential to enable the Appellant to provide a meaningful response to the Allegations.
[6] The exchange that followed is set out in the Appellant’s statement at [16] to [29]. In short, the Appellant has, on multiple occasions, requested access to or copies of documents as well as access to her laptop so that she can obtain information which is said to be relevant and necessary for her to respond to the Allegations.
[7] On 14 July 2020, the Appellant filed an application under s.789FC(1) of the Fair Work Act (FW Act) (the Bullying Application). In the Bullying Application, the Appellant alleges bullying at work against the Respondents, including that the investigation into allegations of misconduct, is being conducted in a ‘grossly unfair manner’ and is behaviour that constitutes bullying at work. 1
[8] On 17 July 2020, the Appellant filed an application for interlocutory relief. The matter was listed for mention before Deputy President Clancy on 22 July 2020. The interlocutory order sought was in the following terms:
‘Until final determination or further order, an order pursuant to s.589(2) of the Fair Work Act 2009 (Cth) restraining the respondents from taking any further step in relation to its investigation of the applicant, impose any disciplinary sanction on the applicant and/or to terminate the applicant’s employment.’
[9] In a decision in transcript the Deputy President dismissed the Appellant’s application. 2 In doing so the Deputy President relied on the Decision of Deputy President Colman in Mayson v Mylan Health Pty Ltd3 (Mayson). In Mayson the Deputy President rejected the applicant’s contention that s.589(2) is a discrete source of power enabling the Commission to make an interim anti-bullying order such that the requirements of s.789FF need not be met.4
[10] Before Deputy President Clancy the Appellant contended that Mayson was wrongly decided and that ‘the power to issue interlocutory orders is not in fact under the bullying jurisdiction, it is pursuant to s.589(2)’. 5
[11] As we have mentioned, the Deputy President dismissed the application for an interlocutory order and the gravamen of that decision is the Deputy President’s acceptance of the proposition that the Commission cannot issue an order under s.789FF without being satisfied that a worker has been bullied at work and that there is a risk that the bullying will continue. In particular, the Deputy President said:
‘A conclusion that an applicant for an order has established an arguable case or a serious issue to be determined falls short of the state of satisfaction that is required under section 789FF.’ 6
[12] The Appellant has lodged an appeal, for which permission is required, against the decision of Deputy President Clancy to decline to issue the interlocutory order sought.
[13] An appeal under s.604 of the FW Act is an appeal by way of rehearing. The Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 7 There is no right to appeal and an appeal may only be made with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is ‘in the public interest to do so.’ Permission to appeal may otherwise be granted on discretionary grounds. In this instance the Respondents do not oppose the grant of permission to appeal.
[14] The central issue raised on the appeal has not previously been dealt with by a Full Bench and there are conflicting first instance decisions dealing with this issue. The matter raised is of general importance and we are satisfied that it is in the public interest to grant permission to appeal. Accordingly, we grant permission to appeal.
[15] The Appellant advanced three grounds of appeal:
1. The Deputy President committed jurisdictional error by acting on a wrong principle and / or misapplying principles concerning recusal, when he refused to disqualify himself from hearing the Applicant’s application for interlocutory relief.
2. The Deputy President committed jurisdictional error by acting on a wrong principle and / or misapplying principles concerning the Commission’s power to grant interlocutory relief when he determined that he had no power to grant the interlocutory relief sought by the Applicant.
3. The Deputy President committed jurisdictional error by determining that he had no power to grant the interlocutory relief sought by the Applicant in circumstances where:
a. he denied procedural fairness to the Applicant by making his decision prior to hearing submissions or receiving evidence from the Applicant in respect of the application for interlocutory relief;
b. he was disqualified from determining the interlocutory application having pre-determined that he had no power to grant any interlocutory relief.
[16] It is common ground that we need not determine appeal grounds 1 and 3, as any denial of procedural fairness or apprehended bias is ‘cured’ by the appeal hearing. For this reason we need say no more about grounds 1 and 3.
[17] As to ground 2, the Appellant contends that the Deputy President’s construction of s.589(2) was erroneous and failed to have regard to ‘well established principles of construction’. Four particular points are advanced in this regard:
1. If general words are used (as in s.589(2)), they will be given their plain and ordinary meaning unless the contrary is shown. 8
2. As stated in R v Ford [1945] SASR 118 at 121 (per Mayo J):
‘It is a well-known principle that where a discretion is given in the widest language, there is no justification for being at pains to interpolate some artificial limit not implicit anywhere in the context.’
3. As stated in Thompson v Goold & Co [1910] AC 409 at 420:
‘It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do.’
4. In circumstances where the FW Act is beneficial legislation, if any ambiguity as to the scope of s.589(2) exists it should be construed beneficially so as to give the fullest relief which the fair meaning of its language will allow. 9
[18] In applying the principles set out above, the Appellant submits:
‘(a) the plain and ordinary meaning of s.589(2) is to confer a discretion on the Commission to make interim decisions (including orders);
(b) there is no justification to interpolate some artificial limit to that discretion;
(c) there is no basis to read into s.589(2) any additional words so as to restrict its application to procedural matters; and
(d) s.589(2) should be construed beneficially as to as to give parties the fullest relief which the fair meaning of its language will allow, including interim relief.’
[19] On this basis the Appellant submits that the Deputy President erred in finding that he did not have power to grant the relief sought by the Appellant. In support of this submission the Appellant relied on the decision of Senior Deputy President Richards in John Holland Queensland Pty Limited v Construction, Forestry, Mining and Energy Union 10 (John Holland) at [24] to [28] in which the Senior Deputy President found that s.589(2) is a general source of power empowering the Commission to make interim decisions and orders.11
[20] The Appellant also referred to Vice President Lawler’s dissenting decision in DP World Sydney Limited v Lambley, 12 (DP World) at [77], which described s.589 as conferring a very broad power on the Commission to make procedural and interim decisions, and at [78] where it was said that sections 589 and 602 are separate sources of power.13
[21] The Appellant also contends that Mayson was wrongly decided and should not be followed. The Appellant submits that Deputy President Colman was incorrect in finding that s.589(2) was not a discrete source of power and the Commission was not able to ‘issue an administrative ‘interim’ injunction in relation to any matter that might be before it.’ 14
[22] During the course of oral argument counsel for the Appellant also relied on s.595(4) in support of his submissions that the intention of subdivision B, of Division 3 of Part 5–1 of the FW Act is ‘quite clearly to confer powers on the Commission to exercise, as it deems appropriate’. 15 We return to the Appellant’s s.595 argument shortly.
[23] We granted leave to the Appellant to provide a short note as to the application of s.589 in the context of other matters including, for example, unfair dismissal and to address the Explanatory Memorandum to what is now s.595, and the meaning of a ‘dispute’ in that section.
[24] In the note filed on 20 August 2020 the Appellant submitted that s.589 confers power on the Commission to grant interim orders, including reinstatement on an interim basis, in matters including matters commenced under s.394. The Appellant submits:
‘Section 589 of the Fair Work Act gives the Commission a broadly expressed power to make interim decisions ‘in relation to a matter before it’. The scope of the power is unconfined. Section 589 appears in the context of Pt 5-Div 3 of the Act which deals with the Commission's general powers in the conduct of any matter in which the Commission's jurisdiction is invoked. It is not subject to any qualification or condition save for the common law principles that govern any exercise of a statutory discretion. That is, in the context of this matter, any exercise of the discretion to grant an interlocutory injunction would be governed by the common law principles concerning any grant of an injunction – namely, whether there is a serious question to be tried and the balance of convenience.’
[25] The Appellant also responded to questions posed by the Commission regarding paragraphs 2285 to 2287 of the Fair Work Bill 2008 Explanatory Memorandum (EM), which states:
2285 … In a range of circumstances, FWA will have power to seek to resolve matters between persons in dispute through conciliation or mediation processes. Subject to a range of access criteria, the Act confers some powers on FWA to impose an outcome if the parties cannot agree – in other words, to arbitrate a dispute between the parties.
2286 Clause 595 gives effect to this policy. Subclause 595(1) provides that FWA may only deal with a dispute if it is expressly authorised to do so under the Bill. Subclause 595(2) enables FWA to deal with those disputes as it considers appropriate, including by a process of mediation or conciliation and/or by delivering an outcome such as a recommendation or opinion. However, subclause 595(3) specifically provides that FWA may only deal with a dispute by arbitration if expressly authorised to do so under the Bill. For the avoidance of doubt, subclause 595(5) emphasises that FWA can only exercise these powers as authorised under clause 595.
2287 The Bill expressly authorises FWA to deal with the following disputes (by authorising FWA to ‘deal with a dispute’):
• bargaining disputes under Part 2-4;
• general protections disputes under Part 3-1;
• right of entry disputes under Part 3-4;
• stand down disputes under Part 3-5; and
• disputes arising under a procedure for dealing with disputes in a modern award, enterprise agreement, workplace determination or contract of employment under Part 6-2, including procedures required by clause 146 (modern awards), subclause 186(6) (enterprise agreements) and subclause 273(2) as applied by subclause 297(1) (workplace determinations).
[26] The Appellant submits that the EM does not displace the ordinary meaning of the word ‘dispute’. Further, the Appellant submits that the EM was drafted prior to the provisions dealing with ‘stop bullying orders’ and does not assist as to whether an application under the ‘stop bullying’ provisions of the FW Act constitutes a ‘dispute’ within the meaning of s.595(1) of the FW Act. It is submitted that the word ‘dispute’ should be given its ordinary meaning and should not be read down by any artificial limit not implicit anywhere in the context of the provision or the FW Act.
[27] The Appellant concludes this part of the ‘Further Note’ in the following terms:
‘From a practical perspective, the usual approach in the Commission to interim decisions reflects the approach of courts to injunction applications. In both cases, the purpose of the power exercised is not to give a party some remedy to enjoy for the time being. It is to protect the subject matter of the proceedings so that if, on a final hearing, it appears that some remedy is appropriate, that remedy has not been put out of reach in the meantime.’ 16
[28] We deal later with the proposition that interim decisions are to protect the subject matter of the proceedings.
[29] In the event the appeal is upheld the Appellant seeks an interlocutory order against Sydney Trains and Transport for New South Wales to the following effect:
‘Until final determination or further order, an order pursuant to s. 589(2) of the Fair Work Act 2009 (Cth) restraining the respondents from taking any further step in relation to the termination of the applicant’s employment.’ 17
[30] During the course of oral argument, it was generally agreed that the Commission has power to make an interim order dealing with an application made under s.789FC; the issue in dispute concerns the basis on which such a power may be exercised. In essence the Appellant contends that an interim order may be issued pursuant to s.589(2), on the well established principles applied by a court granting interlocutory relief; 18 that is, if there is a serious issue to be determined (or a prima facie case established) and the balance of convenience favours the grant of the relief sought. The Respondent takes a different view and contends that interim relief may only be granted in circumstances where the Commission is satisfied in respect of the matters identified in s.789FF, which was the position taken by the Deputy President in the decision subject to appeal.
[31] As we have mentioned above, we do not need to determine appeal grounds 1 and 3. Accordingly, we have focused on the central issue in dispute: the basis upon which the Commission may make an interlocutory order in dealing with a s.789FC application.
[32] As we have mentioned, the Appellant contends that s.589(2) empowers the Commission to grant interlocutory relief if satisfied that there is a serious issue to be tried and the balance of convenience favours the grant of the relief sought. The Appellant submits that in the context of a bullying application the Commission is not required to be satisfied of the matters in s.789FF.
[33] For the reasons which follow we reject the Appellant’s contention that an interim anti-bullying order may be issued based only on a prima facie case, or serious question to be determined, and the balance of convenience favouring the interim relief sought. In our view s.789FF allows the Commission to make an anti-bullying order, including an interim order, only if it is ‘satisfied’ that a worker has been bullied at work and that there is a risk that the bullying will continue.
[34] Contrary to the Appellant’s submission we generally agree with the analysis of Deputy President Colman in Mayson. In particular:
➣ s.589(2) states that the Commission ‘may make an interim decision in relation to a matter before it.’ It is not an independent source of power to issue interim orders because absent a particular ‘matter before it’, the Commission has no power to do anything at all under s.589(2). To the extent that it might be contended that s.589(2) can be used in respect of any ‘dispute’ that might be referred to the Commission, s.595 makes clear that the Commission may deal with a dispute ‘only if (it) is expressly authorised to do so under or in accordance with another provision of this Act.’ Section 589(2) is not such a provision. 19
➣ The ‘matter’ now before the Commission, for the purpose of s.589(2), is an application made under s.789FC. That application alleges that a worker has been bullied at work. It seeks an order under s.789FF to prevent a worker from being bullied by an individual or group. Any order made in relation to this application will be an order under s.789FF and the relevant requirements of that section must be satisfied. 20
➣ Section 789FF confers jurisdiction on the Commission to make an anti-bullying order if, and only if, it is satisfied that a worker has been bullied at work, and that there is a risk that the worker will continue to be bullied at work. In order to be satisfied that a worker has been bullied at work, the Commission would first need to make factual findings about what has occurred and assess whether the behaviour of relevant persons may be characterised as falling within the definition of ‘bullied at work’ in s.789FD(1). This would require the Commission to make a finding that the impugned conduct was repeated and also unreasonable, that the conduct was towards a worker, and that it created a risk to health and safety. 21
➣ Section 789FF deals directly and in general terms with the Commission’s powers to make orders in relation to applications made under s.789FC. The Commission may make ‘any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work.’ Even if s.589(2) did not exist, the Commission could make an interim (temporary) order under s.789FF. But it cannot issue any order at all unless the relevant preconditions are met. 22
➣ A conclusion that an applicant for an anti-bullying order has established an arguable case or serious issue to be determined falls short of the state of satisfaction required by s.789FF. One cannot be satisfied on an arguable basis. One is either satisfied, or not satisfied, that a certain state of affairs exists. 23
➣ Section 589(2), a general provision which must relate to a ‘matter before the Commission’, would then have the effect of disengaging express requirements of the substantive provision and source of power – that the Commission be satisfied of the relevant matters. The applicant’s argument reads s.789FF as requiring the Commission’s satisfaction of these matters, unless an application is made for interim anti-bullying orders. This is not a sensible or coherent interpretation of the relevant provisions. 24
➣ The Commission, unlike a court, has no inherent jurisdiction. It can only do what the Act allows, and it must do what the Act requires. 25
➣ There is nothing to prevent the Commission from issuing interim decisions in an anti-bullying matter, consequent upon having reached the required state of satisfaction as to the matters set out in s.789FF(1). For example, the Commission might be satisfied that a worker has been bullied at work and that there is a risk of continued bullying but require further submissions from the parties as to the final orders; an interim order might be made ‘in the interim’ on the material before the Commission at that time. But what the Commission cannot do is issue an order under s.789FF, without being satisfied that a worker has been subjected to bullying at work, and that there is a risk that the bullying will continue. To make an order in such circumstances would be beyond power. 26
➣ The fact that an anti-bullying order under s.789FF can only be issued once the Commission reaches the requisite state of satisfaction about the relevant matters does not mean that the Commission cannot deal with anti-bullying matters quickly. The Commission may be able to conduct an expedited hearing, swiftly decide whether it is satisfied of the relevant matters in s.789FF and if so whether to issue an order. The Commission might decide to issue an interim (temporary) order, pending further deliberations on the appropriate framing of a final order, which might require further evidence. Or an expedited hearing might lead directly and quickly to the issuing of final orders. 27
[35] The relevant provisions are ss.589, 789FD and 789FF. Section 589(1) states that the Commission may make decisions as to how, when and where a matter is to be dealt with. Section 589(2) then states that the Commission ‘may make an interim decision in relation to a matter before it,’ as follows:
‘589 Procedural and interim decisions
(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.
(2) The FWC may make an interim decision in relation to a matter before it.
(3) The FWC may make a decision under this section:
(a) on its own initiative; or
(b) on application.
(4) This section does not limit the FWC’s power to make decisions.’
[36] Section 789FD(1) defines what is meant by worker being ‘bullied at work’:
(1) A worker is bullied at work if:
(a) while the worker is at work in a constitutionally-covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b) that behaviour creates a risk to health and safety.
[37] There is no dispute that the Appellant works for a constitutionally-covered business. The Appellant contends that the Respondent entity and individual have repeatedly behaved unreasonably towards her, and that their behaviour has created a risk to her health and safety.
[38] Section 789FF(1) sets out when the Commission may make an anti-bullying order:
FWC may make orders to stop bullying
(1) If:
(a) a worker has made an application under section 789FC; and
(b) the FWC is satisfied that:
(i) the worker has been bullied at work by an individual or a group of individuals; and
(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;
then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.
[39] The starting point is to construe the words of s.589 according to their ordinary meaning having regard to their context and legislative purpose.
[40] Section 15AA of the Acts Interpretation Act 1901 requires that a construction that would promote the purpose or object of the FW Act is to be preferred to one that would not promote that purpose or object (noting that s.40A of the FW Act provides that the Acts Interpretation Act 1901, as in force at 25 June 2009, applies to the FW Act). The purpose or object of the FW Act is to be taken into account even if the meaning of a provision is clear. When the purpose or object is brought into account an alternative interpretation may become apparent. If one interpretation does not promote the object or purpose of the FW Act, and another does, the latter interpretation is to be preferred.
[41] In relation to the objects of the FW Act the Appellant relies on s.3(a) and (e):
‘(a) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations;
…
(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms’. (Emphasis added)
[42] We are not persuaded that the objects referred to provide much assistance to the Appellant’s cause. It needs to be remembered that s.3 speaks of the object of the FW Act being to ‘provide a balanced framework’. Further, it must be borne in mind that the purpose or policy of the Act is to gleaned from a consideration of all of the relevant provisions of the Act28 and, in any event, s.15AA requires us to construe the FW Act, not to rewrite it, in the light of its purpose. 29
[43] The Appellant contends that the words of s.589(2) are general in nature and should be given their plain and ordinary meaning. It is further submitted that the discretion conferred is of wide import and ought not be read down.
[44] Section 589 must be read in context by reference to the language of the Act as a whole.30 As Dixon CJ said in Commissioner for Railways (NSW) v Agalianos:31
‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.’
[45] His Honour’s observation was cited with approval in Project Blue Sky Inc v Australian Broadcasting Authority32 (Project Blue Sky). The relevant legislative context may operate to limit a word or expression of wide possible connotation.33 As the majority observed in Project Blue Sky:
‘... the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.’ 34
[46] The general approach reflected in the FW Act is to use express language to confer a function or authorise the exercise of a power. The FW Act is replete with proscriptive limitations on the Commission’s jurisdiction and upon the powers it may exercise. Sections 789FF and 595 serve to illustrate this point. These structural features, and the terms of s.789FF, tells against the construction advanced by the Appellant. The express terms of s.789FF operate to delineate the circumstances in which interim relief may be granted.
[47] It is also relevant to consider the consequences that might flow from the Appellant’s submission if we were to adopt it. 35 Interpretation by reference to the consequences of adopting a particular construction is an incident of the purposive approach to interpretation.36
[48] The Appellant submitted that if its construction of s.589(2) is not accepted, the result is that the Commission has no effective capacity to grant interim relief in respect of anti-bullying matters in order to preserve the subject matter of the application before it, with the result that the purpose of Part 6-4B may readily be defeated (for example, by dismissing an employee) before the final hearing. We do not agree. The Appellant’s submission proceeds on the apparent assumption that, at an interlocutory hearing in which an applicant for an anti-bullying order seeks an interim decision pursuant to s.589(2), it would not be possible for the Commission to reach the requisite state of satisfaction concerning the matters specified in s.789FF(1)(b)(i) and (ii). That assumption is not valid. What provisions of this nature require is ‘an opinion or satisfaction formed reasonably upon the material before the decision-maker’. 37 We can see no reason why, for the purpose of an interlocutory hearing, it would be impossible for an applicant to put before the Commission sufficient material for the Commission to reach the requisite state of satisfaction under s.789FF(1)(b)(i) and (ii) at that time. In this case in particular, it seems to us that the primary facts of the Appellant’s case that the conduct of the disciplinary process to date has been unreasonable can for the most part be established on the basis of the written communications passing between the parties, with the question of whether the Commission may be satisfied as to the 789FF(1)(b)(i) and (ii) matters turning on the proper inferences to be drawn from those primary facts. Once the requisite state of satisfaction has been reached, the Commission has a wide discretion under s.789FF(1) as to the making of appropriate interim orders to remain in place pending the final hearing and determination of the application.
[49] The fact that the requisite state of satisfaction may be reached, or not reached, at an interlocutory hearing on the basis of the material then before the Commission does not foreclose the result of the final hearing. Further evidence adduced at the final hearing may cause the Commission to cease to be, or come to be, satisfied (as the case may be) as to the 789FF(1)(b)(i) and (ii) matters. This will in turn open or close the door to the making of final orders.
[50] It is necessary to add that, in any event, it should not usually be necessary for applicants for anti-bullying orders to seek interim orders in order to preserve the subject matter of their applications. The Commission triages anti-bullying applications in order to ensure that applications that are brought in circumstances of urgency are dealt with on an expedited basis. The conduct of hearings, including complex hearings, at very short notice is an important feature of the Commission’s jurisdiction (including where this mandated by particular provisions of the FW Act, for example ss.420(1) and 441(1)), and the Commission accordingly has the capacity to conduct final hearings in relation to anti-bullying applications on an expedited basis where required. In this case, the Appellant could have sought an expedited final hearing upon filing her application and, if she had done so, this would have been accommodated.
[51] There are other consequences which would flow from the adoption of the construction for which the Appellant contends. The adoption of the construction advanced would mean that, for example, the Commission would have the power to make an order for reinstatement on an interim basis in the context of an unfair dismissal application before any finding that the person has been unfairly dismissed (as required by s.390(1)(a)).
[52] It is highly unlikely that such consequences would have been the result intended by the legislature.
[53] The Appellant also contends that her construction is supported by the remedial or beneficial character of s.589. Contrary to the Appellant’s submission we are not persuaded that s.589 should be characterised as a remedial or beneficial provision, such that it should be construed in a manner which gives the fullest relief to an intended beneficiary – in this case, Ms Wills. Section 589 is in subdivision B of Division 3 of Part 5–1 of the FW Act which deals with the conduct of matters before the Commission. These provisions are procedural in nature in the sense that they facilitate the effective and efficient exercise of the Commission’s substantive powers. They are not remedial or beneficial provisions in the sense contended by the Appellant.
[54] We make three further observations in response to the submissions advanced by the Appellant. The first is that the authorities relied on by the Appellant are of little assistance. The arguments advanced in John Holland focused on the proper construction of ss.418, 420 and 589 and not on the nature of the issue before us. The passage relied on from DP World is from the dissenting decision of Vice President Lawler and does not address the issue before us.
[55] The second observation concerns the Appellant’s contention that s.595 of the FW Act, and specifically s.595(4), lends support to her contention as to the breadth of the power in s.589. 38 That section provides:
595 FWC’s power to deal with disputes
(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.
(2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:
(a) by mediation or conciliation;
(b) by making a recommendation or expressing an opinion.
(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.
Example: Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).
(4) In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.
Example: The FWC could direct a person to attend a conference under section 592.
(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section.
[56] The Appellant contends that the word ‘dispute’ in s.595 of the FW Act is not defined and should be ascribed its ordinary meaning. 39 Therefore ‘dispute’ in s.595 includes an application under s.789FC of the FW Act for an order under s.789FF.40 The Appellant points to s.595(4) and contends in essence that the intention of this provision is to empower the Commission in relation to disputes, including an application under s.789FC, to exercise any of its powers in Subdivision B of Part 5-1 as it deems appropriate, including, where appropriate, the power in s.589(2).41
[57] Whilst it must be accepted that the word ‘dispute’ in s.595 of the FW Act is not otherwise defined and carries its ordinary meaning, namely ‘a disagreement or argument’, it does not follow that a dispute to which s.595 relates includes every disagreement or argument which may be the subject of the various applications that may be made under the FW Act. The context in which the word ‘dispute’ is used in s.595, and in the FW Act as a whole, is important.
[58] Section 595(1) of the FW Act permits the Commission ‘to deal with’ a dispute only if it is ‘expressly authorised to do so under or in accordance with’ another provision of the FW Act. Put another way, in order that the Commission is empowered to deal with a dispute, ‘a provision of the FW Act must expressly authorise the Commission to deal with the (or a) dispute’. This suggests that the reference to authorising the Commission ‘to deal with’ a dispute, is not concerned with matters or applications which in a general sense might be said to involve a disagreement or argument. Rather, it is concerned with a more limited disagreement or argument, described in the authorising provision as a ‘dispute’ and permitting the Commission to ‘deal with the (or a) dispute’.
[59] Not all provisions of the FW Act can be said to ‘expressly authorise’ the Commission to deal with a dispute in terms. An application under s.789FC of the FW Act for an order under s.789FF is not so expressed. Indeed, the preponderance of provisions of the FW Act conferring jurisdiction of one kind or another on the Commission are not so expressed. However, there are several other provisions of the FW Act which engage with the language of s.595.
[60] Section 240 of the FW Act provides that a bargaining representative for a proposed enterprise agreement may apply to the Commission for it ‘to deal with a dispute about the agreement’. Section 246(2) relevantly provides that the Commission may, of its own initiative, provide such assistance to bargaining representatives for an agreement that is the subject of a low-paid authorisation that the Commission could provide ‘if it were dealing with a dispute’.
[61] Section 365 permits a person or a relevant industrial association alleging the person was dismissed in contravention of Part 3-1 to apply to the Commission for it ‘to deal with the dispute’ and if such an application is made then s.368 provides that the Commission ‘must deal with the dispute (other than by arbitration)’. Similarly, s.372 permits a person who alleges a contravention of Part 3-1 but not involving a dismissal to apply to the Commission for it ‘to deal with the dispute’ and by s.374 the Commission ‘must conduct a conference to deal with the dispute’ if the parties to the dispute agree to participate.
[62] Section 505(1) of the FW Act provides that the Commission ‘may deal with a dispute about the operation of’ Part 3-4 (which is concerned with entry to premises by permit holders) including disputes about the several matters enumerated therein. Section 505(2) authorises the Commission to ‘deal with the dispute by arbitration’, including by making one or more of the several orders identified. Section 505(3) permits the Commission to ‘deal with the dispute’ on its own initiative or on application.
[63] Section 505A(2) of the FW Act provides that the Commission ‘may deal with a dispute about the frequency with which a permit holder or permit holders of an organisation enter premises under section 484’. Section 505A(3) authorises the Commission to ‘deal with the dispute by arbitration’, including by making one or more of the several orders identified. Section 505A(5) permits the Commission to ‘deal with the dispute’ on its own initiative or on application.
[64] Section 526(1) of the FW Act provides that the Commission ‘may deal with a dispute about the operation of’ Part 3-5 (which is concerned with the standing down of employees in certain circumstances). By s.526(2) the Commission is authorised to ‘deal with the dispute by arbitration’ but by s.526(3) it may only ‘deal with the dispute’ on application by a limited class of persons.
[65] Part 6-2 of the FW Act is concerned with the powers of the Commission and others to deal with a dispute in certain circumstances. The substantive provisions are contained in Subdivision B of Division 2 of Part 6-2 and are engaged if a modern award, enterprise agreement, a contract of employment or other written instrument or a determination made under the Public Service Act 1999 includes a term that provides ‘a procedure for dealing with disputes’ about particular matters. In short compass, s.739 authorises the Commission to ‘deal with a dispute’ only on application of a party to the dispute, but it may not exercise a power that is limited by the dispute settlement term and may arbitrate the dispute if in accordance with the dispute settlement term the parties have agreed that the Commission may do so.
[66] Part 6-4C of the FW Act contains provisions of a temporary nature aimed at enabling, inter alia, jobkeeper participating employers and employees to have available more flexible work arrangements through the issuing of particular directions and making particular requests during the COVID-19 pandemic. Section 789GV provides that the Commission ‘may deal with a dispute about the operation of’ Part 6-4C, including by dealing with the dispute by arbitration but it may only ‘deal with a dispute’ on application.
[67] The provisions of the FW Act which authorise the Commission expressly to ‘deal with a dispute’ stand in contradistinction to other provisions of the FW Act which empower the Commission to make various orders (for example an unfair dismissal remedy order of reinstatement or compensation order, 42 a stop unprotected industrial action order,43 a bargaining order,44 a protected action ballot order45 or a stop bullying order46), determinations (for example a majority support determination47 or a workplace determination48) or modern awards49. None of these provisions engage, in terms, with the language of empowering the Commission to ‘deal with a dispute’. Applications which engage with these provisions will invariably involve a dispute in the sense that there will be a disagreement or argument, but s.595 does not engage with these provisions.
[68] Contrary to the Appellant’s contention, the construction we favour does not involve a reading down by any artificial limit not implicit anywhere in the context of the provision or the FW Act. 50 Reading the word ‘dispute’ in s.595 in the context of the provision and of the FW Act as a whole, it seems to us tolerably clear that the section is concerned with those provisions of the FW Act which expressly authorise the Commission to ‘deal with a dispute’ in terms and not otherwise. The limited import of the word ‘dispute’ in s.595 on the Commission’s jurisdiction and powers is not only contextually implicit, but as our discussion of the various provisions of the FW Act earlier demonstrates, it is explicit.
[69] It follows that s.595 of the FW Act lends no support to the Appellant’s contentions as to the breadth of s.589(2).
[70] Our third and final observation concerns the Appellant’s submission, in the Further Note, that the purpose of interlocutory relief is to protect the subject matter of the proceeding. The Appellant did not refer to any authority for the proposition that a tribunal, as distinct from a court, has an inherent or implied power to grant interlocutory relief in order to preserve the subject matter of the litigation. The Appellant might have referred to a line of decisions of the Industrial Relations Commission of NSW, emanating from the decision of Schmidt J in Hill v Department of Education (NSW) 51, in which it has been held that the NSW Commission has under the Industrial Relations Act 1996 (NSW) (IR Act) the implied power to issue orders restraining an employee from being dismissed pending a full hearing of the matter in circumstances where a prima facie case is demonstrated and the balance of convenience favours the grant of the orders.52 However, there are a number of features of the statutory scheme governing the NSW Commission which distinguishes its position from that of this Commission operating under the FW Act.
[71] The first is that, at the time that Hill was decided (but not now), the NSW Commission had a dual character – that of a court when sitting as the Commission in Court Session and exercising judicial functions, and that of an administrative tribunal when exercising non-judicial functions. In circumstances where the IR Act had been previously been construed as conferring on the Commission in Court Session the implied power to make interlocutory orders, it was not seen as feasible to construe the same Act in a different way when the Commission was not sitting in Court Session in relation to unfair dismissal matters. 53
[72] Second, the NSW Commission is conferred with the express power to restrain threatened dismissals. This power arises in two ways. Firstly, the unfair dismissal regime in Part 6 of Chapter 2 of the IR Act defines (in s.83(5)) a ‘dismissal’ to include a threat of dismissal, and confers (in s.89(7)) the power to order an employer not to dismiss an employee in accordance with a threat of dismissal. Secondly, under s.137(1)(c), the NSW Commission has the power to order an employer not to dismiss employees in the course of an industrial dispute if the employer has threatened to do so. Thus, the implicit interlocutory power to restrain dismissals was held to arise in the context where express power existed to order that a person not be dismissed as final relief. In addition, the s.137(1)(c) power is expressly authorised to be exercised on an interim basis under s.136(1)(d).
[73] Third, the express power in the IR Act to order that an employee not be dismissed is very broadly discretionary in nature, and is not the subject of the jurisdictional prerequisites and conditions typically attending the exercise of any power conferred under the FW Act (including the power to make anti-bullying orders under s.789FF). No particular precondition attends the making of an order under s.89(7) (beyond the existence of the requisite threat of dismissal), with the matters requiring to be taken into account under s.88 in respect of unfair dismissals not being relevant to threatened dismissals. Likewise, the exercise of the power in
s.137(1)(c) is not the subject of any precondition beyond establishing the existence of the dispute and the threat of dismissal (noting that the threat of dismissal may itself be the subject matter of the dispute). Accordingly, under the IR Act, no conflict arises between the terms upon which interim relief may be granted and any conditions applying to the grant of final relief. That is clearly not the position under the FW Act.
[74] For these reasons, we do not consider that the line of authority in the NSW Commission is of assistance in resolving the question of construction of s.589 of the FW Act raised in this appeal.
[75] For the reasons given we are not persuaded that the Deputy President erred in dismissing the Appellant’s application for interlocutory relief. That application was put on the basis that the Appellant only needed to establish a prima facie case, or that there was a serious issue to be determined, and that the balance of convenience favoured the grant of relief sought. The Deputy President was correct in dismissing an application put on that basis. We grant permission to appeal and dismiss the appeal.
[76] For completeness we note the Appellant’s submission that if we were of the view that s.789FF of the FW Act provided a power to grant interlocutory relief, then the matters advanced in respect of s.589 need not be addressed and we should proceed to grant the interim relief sought. We reject this submission. An appeal cannot succeed in the absence of appealable error 54 and absent an appeal being upheld, the Appeal Bench cannot make a further decision in relation to the matter that is the subject of the appeal. If the Appellant wishes to pursue interlocutory relief on the basis we have set out then an application should be made to Deputy President Cross, to whom the substantive application has been allocated.
PRESIDENT
Appearances:
Mr D Mahendra, of counsel, for the Appellant
Ms J Davidson, of counsel, for the Respondent
Hearing details:
Melbourne, by telephone
20 August 2020
Final written submissions:
Appellant, 20 August 2020
Respondent, 25 August 2020
Printed by authority of the Commonwealth Government Printer
<PR722160>
1 Appellant’s Bullying Application dated 14 July 2020 at para 30, page 42 of Appeal Book.
2 Transcript, 22 July 2020 at [132].
4 Ibid at [166].
5 Transcript, 22 July 2020 at [115].
6 Ibid at [114].
7 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
8 Cody v J H Nelson Pty Ltd (1947) 74 CLR 629 per Dixon J at 647.
9 Bull v Attorney-General (NSW) (1913) 17 CLR 370 at 384.
11 Ibid at [24] to [28].
12 [2013] FWCFB 9230 (22 November 2013); (2013) 239 IR 256
13 See also CFMEU v Woodside Burrup Pty [2010] FWAFB 6021; (2010) 198 IR 360 at [5].
14 Leanne Mayson v Mylan Health Pty Ltd and others [2020] FWC 1404 at [23].
15 Transcript, 20 August 2020 at PN63–PN65.
16 Further Note concerning s.589 of the Fair Work Act 2009, filed by the Appellant on 20 August 2020, at [8].
17 Transcript, 20 August 2020 at PN207.
18 Transcript, 20 August 2020 at PN122–PN123.
19 Mayson at [17].
20 Ibid at [18].
21 Ibid at [19].
22 Ibid at [21].
23 Ibid at [22].
24 Ibid at [23].
25 Ibid at [24].
26 Ibid at [26].
27 Ibid at [30].
28 Municipal Officers’ Association of Australia v Lancaster (1981) 37 ALR 559 at p579; Bowling v General Motors Holden Ltd (1980) 33 ALR 297 at p304.
29 Mills v Meeking (1990) 169 CLR 214 at 235 per Dawson J; R v L (1994) 49 FCR 534 at 538.
30 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].
31 (1955) 92 CLR 390 at p397.
32 (1998) 194 CLR 355 at p381.
33 See Prior v Sherwood (1906) 3 CLR 1054; R v Refshauge (1976) 11 ALR 471 at 475.
34 (1998) 194 CLR 355 at [78] per McHugh, Gummow, Kirby and Hayne JJ). Also see Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9 at [65]-[66].
35 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320-321 per Mason and Wilson JJ.
36 Turner v George Weston Foods Ltd Trading as Tip Top Bakeries [2007] NSWCA 67 at [56] per Campbell JA, with whom Beazley JA and Hodgson JA agreed.
37 Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5, 199 CLR 135 at 150.
38 Transcript, 20 August 2020 at PN63.
39 Ibid PN76.
40 Ibid PN63, PN77.
41 Ibid PN63-PN65, PN 69, PN73-PN74.
42 Fair Work Act 2009, ss.390 and 391.
43 Ibid, ss.418 – 420.
44 Ibid, s.230.
45 Ibid, s.437.
46 Ibid, s.789FF.
47 Ibid, ss.236 and 237.
48 Ibid, s.266.
49 Ibid, s.157.
50 Appellant’s Further Note concerning s.589 of the Fair Work Act 2009 (20 August 2020).
51 [1998] NSWIRComm 622, 85 IR 201.
52 See e.g. ASMOF (NSW) (on behalf of Dr Wojtulewicz) v Director General of NSW Health Service (Children's Hospital at Westmead) [2008] NSWIRComm 229; Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and State of New South Wales Director-General of the Department of Premier and Cabinet [2013] NSWIRComm 4; Perry Janssen v Health Secretary (in respect of South Western Sydney Local Health District) [2018] NSWIRComm 1042.
53 [1998] NSWIRComm 622, 85 IR 201 at p.207.
54 Wan v AIRC [2001] FCA 1803 at [30].