FEDERAL COURT OF AUSTRALIA

EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FCAFC 8

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

NORTH AND BROMBERG JJ:

1    The Fair Work Act 2009 (Cth) (“the FW Act”) seeks to encourage the resolution of industrial claims made by employees and employers including by providing a process for enterprise bargaining. That process culminates in the making of an enforceable industrial agreement known as an enterprise agreement. For the purposes of supporting or advancing their claims for an enterprise agreement, employees may take “employee claim action” (s 409). “Employee claim action” is a form of “protected industrial action” (s 408). Division 2 of Part 3-3 of the FW Act identifies the requirements that must be satisfied for industrial action to be characterised as “protected industrial action”. The benefit and significance of such a characterisation is identified by s 415 of the FW Act which provides a qualified immunity from civil liability to persons who have taken or organised industrial action that is “protected industrial action”.

2    Amongst the many requirements made by Div 2 of Pt 3-3 of the FW Act for industrial action to be “protected industrial action” is the requirement that “employee claim action” be authorised by a protected action ballot (s 409(2)). Division 8 of Pt 3-3 of the FW Act (“Division 8”) “establishes the process that will allow employees to choose, by means of a fair and democratic secret ballot, whether to authorise protected industrial action for a proposed enterprise agreement” (s 435). The object of Division 8 is described by s 436 as:

to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement.

3    Division 8 provides for a bargaining representative to apply to the Fair Work Commission (“the Commission”) for a “protected action ballot order” requiring a protected action ballot to be conducted (s 437(1)). Consistently with the object of Division 8 set out in s 436, s 437(1) emphasises that the purpose of the conduct of the ballot is “to determine whether employees wish to engage in particular protected industrial action for the agreement”.

4    Subdivision C of Division 8 then deals with the conduct of a protected action ballot. The provisions in Subdiv C address a range of requirements including the compilation of a roll of voters (s 452), the eligibility of employees to be included in the roll of voters (s 453) and variations to the roll of voters (s 454). Where the ballot is not to be conducted by the Australian Electoral Commission, written directions about the conduct of the ballot are to be given by the Commission to the ballot agent (s 450).

5    Those provisions are then immediately followed by s 459, the terms of which are central to the determination of this application. Section 459 is in the following terms:

(1) Industrial action by employees is authorised by a protected action ballot if:

  (a)     the action was the subject of the ballot; and

(b)     at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and

  (c)     more than 50% of the valid votes were votes approving the action; and

  (d)     the action commences:

    (i)    during the 30-day period starting on the date of the declaration of the results of the ballot; or

    (ii)     if the FWC has extended that period under subsection (3) – during the extended period.

(2) If:

     (a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and

    (b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;

then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).

(3)     The FWC may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

    (a)    an applicant for the protected action ballot order applies to the FWC for the period to be extended; and

     (b)     the period has not previously been extended.

6    The statutory construction issue raised by this application turns on the intended meaning of the word “extended” as first used by s 459(1)(d)(ii) of the FW Act and the word “extend” in s 459(3).

7    The applicant (“EnergyAustralia”) contended that by its decision, which is the subject of this application for judicial review, the Full Bench of the Fair Work Commission (“the Full Bench”) was wrong to conclude that the Commission was empowered by s 459(3) to extend the 30 day period referred to in s 459(1)(d)(i) at a time after that period had expired. Put simply, EnergyAustralia argued that for an initial period to be capable of being “extended”, the initial period must be in existence.

8    The Full Bench was not persuaded that the ordinary and natural meaning of “extend” or “extended” are as limited as that for which EnergyAustralia contended. By reference to the judgment of Fullagar J in Esso Research and Engineering Company v Commissioner of Patents (1960) 102 CLR 347 at 351-2 as well as the judgment of Mason ACJ, Wilson and Dawson JJ in Sanofi v Parke Davis Pty Ltd (No 2) (1983) 152 CLR 1 at 8, the Full Bench reasoned that there was no established rule of construction that a statutory power to “extend” a period cannot be exercised after the expiry of the period unless the decision maker is expressly empowered to do so.

9    The Full Bench determined that an enlargement of time after the expiration of an initial period may itself be quite naturally regarded as an “extension”. Having determined that the language of s 459 was quite capable of that meaning, the Commission resolved the construction question by reference to a consideration of the statutory context and legislative purpose of s 459. The Full Bench concluded that the power to extend conferred by s 459(3) may be exercised after the 30 day period in s 459(1)(d)(i) has expired. The Full Bench therefore dismissed the appeal before it which sought to set aside an extension order made by a member of the Commission on 25 March 2013.

10    EnergyAustralia seeks writs of mandamus and certiorari which the first respondent (“the CFMEU”) resists.

Consideration    

The meaning of “extend”

11    Both parties accept and we agree that the word “extend” is capable of different meanings. As Deane J observed in Parke Davis Pty Ltd v Sanofi (No 2) (1982) 43 ALR 487 at 503, in a passage referred to with approval by Mason ACJ, Wilson and Dawson JJ in Sanofi at 7-8:

It is apparent that, as a matter of language, a reference to extending something will commonly involve the inference that what is to be extended must be current or existing. The propriety of such an inference will, however, depend largely upon the nature of what is to be extended. In the case of extending a physical thing, such as a rubber band or one's neck, the inference will ordinarily be irresistible. When non-physical things, such as time or rights, are involved, however, the inference will depend upon whether the concept of “extending” the particular thing carries with it the implication that what is to be extended must still be current or existing.

12    Whilst the task of statutory construction must begin with a consideration of the text itself, in construing the text it is often necessary to give consideration to the context, including the general purpose and policy of the provision: Alcan Alumina (NT) Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ). Where the text is capable of different meanings, the general purpose and policy of the provision become important guides to the meaning of the text. As Deane J indicated in Parke Davis, the term “extend” is capable of carrying with it the implication that what is to be extended must still be current. However whether that is so is a question which depends on the context in which “extend” has been used.

13    In our view, in order to properly understand the context in which “extend” has been used in s 459, it is necessary to appreciate the purpose of the facility provided by s 459(3) for the Commission to grant an extension.

14    Section 459(1) is concerned with the authorisation by employees for the taking of prospective industrial action. An authorisation of the kind required by s 459(1) is necessary for industrial action to qualify as “employee claim action” and to thus be “protected industrial action” (ss 409(2) and 408(a)). There are four requirements specified by s 459(1), each of which deal with the requisite nature of the authorisation that must be given by the employees. First, the authorisation of the industrial action must have been the subject of a ballot (s  459(1)(a)). Second, at least 50% of the employees on the roll of voters must have participated in the ballot (s 459(1)(b)). Third, more than 50% of the valid votes must have approved the taking of the particular industrial action (s 459(1)(c)).

15    Consistently with the purpose of s 459(1) made apparent by its first three requirements, the fourth requirement also addresses the same purpose, namely to prescribe the requisite nature and quality of the authorisation given by employees. What the fourth requirement seeks to do is to ensure that the authorisation which has been given by employees for the taking of particular industrial action remains current, in the sense that it continues to reflect the will of the majority of employees. Accordingly, an authorisation for the taking of prospective and particular industrial action not acted upon by the employees within 30 days of the declaration of the result of the ballot, is rendered ineffective by s  459(1)(d) unless the 30 day period has been extended by the Commission under s 459(3). By that means a temporal limitation is placed on the authorisation given by employees through the ballot, so as to address the possibility that the will of the majority of employees to take particular industrial action may have evaporated prior to that industrial action taking place.

16    Once that purpose is recognised, the object of the function given to the Commission to extend the period of the temporal limitation becomes apparent. As the Full Bench correctly observed at [20]-[21], in many cases it will be plain that majority employee support for the taking of particular industrial action has continued beyond the 30 day period. In those circumstances, the Commission’s discretion to extend the initial period by up to a further 30 days could sensibly be utilised to avoid the cost, delay and inconvenience involved in assessing the will of the majority through a fresh application for a new protected action ballot. As the Full Bench also observed at [21], the provision of that facility is consonant with the object of Division 8 as set out in s 436 “to establish a fair, simple and democratic process” to determine the will of the employees.

17    If the function given to the Commission is to be exercised by reference to an assessment of whether the will of the majority of employees for the taking of particular industrial action will continue beyond the 30 day period, it seems unlikely that it was intended that such a function could only be exercised during the 30 day period. The point in time at which the Commission will best be able to make such an assessment is at a time proximate to the time that industrial action may commence, should an extension be granted. On the construction contended for by EnergyAustralia, the Commission will be called upon to make that assessment as long as 4 or 5 weeks before the prospective industrial action the subject of the extension application may commence. That construction makes the Commission’s task of arriving at an appropriate decision more difficult than it needs to be. It is unlikely that such a consequence was intended.

18    It is difficult to discern any policy imperative in favour of a legislative intention to limit the Commission’s capacity to extend the initial 30 day period in the manner contended for by EnergyAustralia. EnergyAustralia contended that the construction preferred by the Full Bench significantly undermined the regime for due notice to be given to an employer of protected industrial action to be taken by employees, with the consequence that defensive action which could be taken by an employer may be compromised. That contention is ill-conceived for a number of reasons. The provision of due notice to an employer as a pre-requisite to the taking of protected industrial action is dealt with by s 414. That subject matter has nothing to do with s 459(1). In any event, the construction adopted by the Full Bench does not affect the requirement for the employer to be given notice. Nor does a 30 day limit upon the capacity of the Commission to grant an extension provide any greater certainty to an employer that industrial action will not thereafter be taken. The threat of protected industrial action being taken will subsist despite the expiry of the initial 30 day period. There is no restriction imposed by the FW Act on industrial action being authorised by a second protected action ballot. Whilst the time and effort involved in the conduct of a further ballot of employees may somewhat advantage the employer, that circumstance is not likely to be a source of advantage which the FW Act intends to confer on any party. As the Explanatory Memorandum stated in relation to the object of Division 8 set out in s 436:

The process the Division establishes is not intended to delay or frustrate the taking of protected industrial action by employees.

19    As the Full Bench correctly observed at [26], the construction it preferred would not involve an extension order having retrospective effect so as to confer protection on industrial action taken after the expiry of the 30 day period but before the extension order was made. Section 459(1)(d)(ii) only protects action which “commences” in the extended period. If action has commenced prior to the making of the extension order the action will not be authorised because it commenced prior to the extended period becoming operative. Nor do we consider that the construction we prefer would have the effect of lengthening the outer temporal limit of the authorisation given by the ballot. The extension of up to 30 days which the Commission may grant is to be calculated by reference to the day of the declaration of the results of the ballot and not the day from which any extension is granted.

20    Finally, as the Full Bench correctly observed at [22], the construction contended for by EnergyAustralia would lead to unnecessary and counterproductive resort to industrial action:

As the expiry of the 30 day period approaches, there will be a natural incentive for a union bargaining representative to initiate forms of protected industrial action authorised by a protected action ballot that have not yet been utilised in order to preserve their availability for future use in the bargaining, even if bargaining is progressing satisfactorily and appears likely to be successful without resort to action of that type. A prudent bargaining representative will take account of the possibility that bargaining may not be successful without resort to such protected industrial action. The construction for which the union contends it [sic] better attuned to the objects of the Act.

21    For those reasons, we consider that the Commission’s decision involved no error and was within jurisdiction.

The claim for judicial review

22     The CFMEU challenged the jurisdiction of the Court to grant the relief sought by EnergyAustralia. That challenge should be rejected. If jurisdictional error had been established, for the reasons given by Dowsett J, we consider the relief claimed by EnergyAustralia was within the jurisdiction of the Court to grant.

orders

23    The application should be dismissed. No order for costs was sought and it follows that no order as to costs should be made.

Associate:

Dated:    19 February 2014

REASONS FOR JUDGMENT

DOWSETT J:

BACKGROUND

24    In the Australian Fair Work Act 2009 (Cth) (the “FW Act”) Divisions 2 to 8 of Part 3-3 deal with protected industrial action in the course of industrial disputes. Section 415(1) confers legal immunity in connection with such action where it has been authorized by a ballot of the relevant employees. Section 459 prescribes the procedure for such authorization as follows:

(1)    Industrial action by employees is authorised by a protected action ballot if:

(a)    the action was the subject of the ballot; and

(b)    at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and

(c)    more than 50% of the valid votes were votes approving the action; and

(d)    the action commences:

(i)    during the 30-day period starting on the date of the declaration of the results of the ballot; or

(ii)    if the FWC has extended that period under subsection (3) - during the extended period.

…

(2)    If:

(a)    the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and

(b)    the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;

then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).

(3)    The FWC may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a)    an applicant for the protected action ballot order applies to the FWC for the period to be extended; and

(b)    the period has not previously been extended.

25    Section 437(1) provides that an interested person may apply to the second respondent (the “FWC”) for an order that a protected action ballot be held. Pursuant to s 443, the FWC may make such an order.

26    EnergyAustralia Pty Ltd (the “applicant”) is a power generator, operating in Victoria. The Yallourn power station is a brown coal facility in the La Trobe Valley, approximately 150 km east of Melbourne. The applicant and the first respondent are presently negotiating a new enterprise agreement in respect of the Yallourn facility. As part of the negotiations, the first respondent sought an order for a protected action ballot. On 22 January 2013, such an order was made. The ballot was held on 14 February 2013. The results were declared on the same day. A majority of the balloted employees voted to approve various forms of industrial action. Pursuant to s 459(1) such industrial action would be protected, provided that it commenced during the 30 day period starting on 14 February 2013, or during any extended period granted pursuant to s 459(3). On 5 March 2013, the first respondent gave notice to the applicant (under s 414 of the FW Act) that it proposed to take protected industrial action. By 15 March such action had not commenced. On 18 March 2013 the first respondent applied to the FWC for an extension of the 30 day period. On 25 March 2013 Commissioner Bissett granted the extension. The applicant applied to the Full Bench of the FWC (the “Full Bench”) for permission to appeal against the decision, alleging that there was no power to extend the 30 day period once it had expired. The Full Bench granted such permission but dismissed the appeal. The applicant now seeks to set aside the order for extension on the ground that in making that order, the FWC exceeded its jurisdiction. Accordingly, the applicant seeks writs of certiorari and mandamus.

THE POWER TO EXTEND

27    The applicant argues that the power to extend the 30 day period must necessarily be exercised prior to the expiry of that period. In other words, any extension must be of an existing period. The applicant submits that the natural meaning of the word “extend” carries such an implication. In effect, the applicant asserts that any departure from such natural meaning must be justified by some demonstrated indication or intention in the FW Act. It submits that in granting the application, the FWC fell into jurisdictional error. The first respondent disputes that submission. It submits that there may be more than one natural and ordinary meaning of the words “extend” and “extension” and that, on its proper construction, s 459 authorizes an extension after expiry of the 30 day period. Further, the first respondent asserts that this Court lacks jurisdiction to grant certiorari and/or that such relief will serve no legitimate purpose. It also submits that there is no basis for issuing mandamus. The FWC has indicated that it will abide the Court’s order.

28    The first respondent concedes that any extension must be for a period which ends not later than 60 days after the declaration of the protected action ballot. It also concedes that any extension will not protect industrial action commenced after the expiry of the initial 30 day period and before the grant of any extension. These concessions tend to distract attention from consequences which might otherwise flow from the first respondent’s approach to the primary question of construction to which I have referred. Such concessions are, however, irrelevant to the resolution of that question. The Court’s task is to determine the intention of Parliament in enacting s 459. That task must begin with the text of the provision. The High Court said, in Alcan Alumina (NT) Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47]:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

(footnotes omitted)

29    To some extent, both the applicant and the first respondent have sought subtly to depart from the High Court’s direction. The applicant has sought to attribute a “natural” meaning to the word “extend” and its analogues, challenging the first respondent to show cause why any different meaning should be adopted. As to the “general purpose and policy” of s 459, and the “mischief it is seeking to remedy”, the first respondent submits (at paras 18 and 19 of its submissions):

18    Particularly telling is the practical consequences of the Applicant’s argument, identified by the Full Bench at [22]:

“The construction advanced by the Appellant would be likely to lead to a greater and sometimes unnecessary resort to protected industrial action. As the expiry of the 30 day period approaches, there will be a natural incentive for a union bargaining representative to initiate forms of protected industrial action authorised by a protected action ballot that have not yet been utilised in order to preserve their availability for future use in the bargaining, even if bargaining is progressing satisfactorily and appears likely to be successful without resort to action of that type. A prudent bargaining representative will take account of the possibility that bargaining may not be successful without resort to such protected industrial action. The construction for which the union contends [is] better attuned to the objects of the Act.”

19    At [18](a) of its Decision, the Full Bench referred to the objects of the Division in s.436. The Explanatory Memorandum for that section states:

“Clause 436 states that the object of the Division is to provide bargaining representatives with access to a fair, simple and democratic secret ballot process in order to determine whether employees wish to take certain types of protected industrial action. The Division contains facilitative provisions designed to provide a means for assessing the level of support for protected industrial action. The process the Division establishes is not intended to delay or frustrate the taking of protected industrial action by employees.”

30    The observations by the Full Bench at [22] (cited above) are unconvincing. The notional union bargaining representative would be similarly tempted at the expiry of any extended period. Further, such an approach pays no attention to the position of the employer of which I shall say more at a later stage. As to the explanatory memorandum, I see no reason for concluding that either the applicant’s, or the first respondent’s approach to the construction of s 459 is more or less likely to delay or frustrate the taking of protected industrial action. Divisions 2 to 8 of Part 3-3 are designed to regulate such action for the benefit of both employers and employees.

31    For present purposes, the relevant inquiry is as to Parliament’s intention in requiring that any industrial action commence within 30 days, and in permitting an extension of that period for “up to 30 days”. In Davids Distribution Pty Ltd v National Union of Workers (1999) 165 ALR 550, the Full Court considered earlier legislation which provided that industrial action was “protected action” only if the relevant employee organization had given to the employer, three days’ notice of such action. Concerning the purpose of that provision, Wilcox and Cooper JJ said at [87]:

We think s 170MO(5) was designed to ensure that industrial disputants who are to become affected by protected action, in relation to which their usual legal rights are significantly diminished, are at least able to take appropriate defensive action. For example, an employer may operate a sophisticated item of equipment that will be damaged if precipitately shut down. If warned in advance of a ban that might affect the continued operation of that plant, the employer might choose a controlled shut down during the period of the notice. More commonly, perhaps, an employer might use the notice time to communicate with suppliers and customers, and thereby reduce the consequences for them of the notified industrial action.

32    Whilst their Honours were no doubt correct in their observations, I consider that the purpose which they identified was a specific aspect of a broader purpose. Section 459 deals with ballots by employees. It also deals with notice to the employer that industrial action may occur. Clearly, Part 3-3 is concerned with industrial action taken in connection with industrial bargaining. During such bargaining, the possibility of industrial action will generally be ever-present. Division 8 of Part 3-3 is concerned with regulating the way in which such action is to be taken by employees if it is not to attract legal sanctions, generally in the form of claims for damages by the employer. Part 3-3 seeks to strike a balance between the advantages, primarily to employees, of taking protected industrial action and the advantages to employers of having notice of the possibility of such action. Various provisions of the FW Act support this view. Section 440 requires that the employer receive notice of an application for a protected action ballot order. Section 445 requires that the employer receive notice of any such order. Section 457(1) requires that the employer receive notice of the outcome of any ballot. Section 414 requires at least three days’ notice to the employer of any intention to take protected industrial action, such notice being given after the results of any ballot have been declared.

33    No doubt industrial negotiations are conducted having regard to the provisions of the FW Act concerning protected industrial action. No doubt, too, the threat of a proposed application for a protected action ballot order, such an order and a ballot result in favour of protected action will have the effect of ramping up the pressure on the employer. The FW Act prescribes a strict timetable for the process as follows:

34    Clearly, this timetable is designed to ensure that once the possibility or threat of protected action arises in a formal way (by application for an order) the matter should proceed quickly. One reason for requiring such expedition may be a desire not to “delay or frustrate” protected action, but that reason would not explain the time limit within which action must be taken. It is likely that the various time limits were also designed to give some certainty to the employer. The 30 day time limit certainly seems to have that purpose. It also ensures that there is a finite time limit upon the authority to take industrial action, effectively granted by employees to their bargaining representative.

35    It is not inherently surprising that Parliament should have chosen to place strict limits upon the legal immunity conferred by the FW Act, having regard to the need to balance the interests of all who might be affected by such action. Whilst these considerations do not lead me to an unusually strict construction of s 459, they also do not suggest that the construction exercise will be helpfully informed by reference to what may be thought to be “sensible”. (See the Full Bench’s reasons at [20].) The FWC may not extend its powers by reference to its view as to whether it is “sensible” that it have a particular power. Nor is there anything unfair, complex or undemocratic about the construction of legislation which is based upon the language in which it is expressed. (See the Full Bench’s reasons at [21].) Finally, neither approach to the construction exercise in this case will render s 459 more difficult of application by “ordinary practical people” than the other. (Again, see [21].) The difficulty with the Full Bench’s reasoning at [19]-[22] is that it acknowledges that there is a clear limitation upon the time within which protected industrial action must be taken, but then seeks to justify a liberal interpretation of the basis upon which it may extend the relevant time limit, without really identifying the probable purpose of the limitation. The Full Bench’s reasoning reflects its own perception that the FWC should have a wider, rather than a narrower discretion, and not any reasoned construction of the relevant provisions of the FW Act.

NATURAL MEANING OF “EXTEND”

36    Both parties accept that the word “extend” may have different meanings, depending upon the context in which it is used. The Macquarie Dictionary (5th ed) relevantly defines the word as follows:

to increase the length or direction of; lengthen; prolong.

37    The word “extended”, as an adjective means “stretched out … continued or prolonged”.

38    In the Oxford English Dictionary (2nd ed) the definition of the word “extend” takes up more than three columns, but the appropriate meaning seems to be “to lengthen, prolong; to continue to a greater distance …” or “to widen the range, scope, area of application of (a law, operation, dominion, state of things, etc); to enlarge the scope or meaning of (a word)”. The word “extended” means “(d)rawn out in length in space or time; continued, prolonged”.

39    Clearly, s 459 authorizes the FWC to “extend” a period. The period in question is the initial 30 day period during which protected action must be commenced. The question, then, is whether, when the FWC ordered that such step might be taken after the expiry of the initial 30 day period, and between the date of that order and a date 60 days after the declaration of the ballot, it “extended” the initial 30 day period. The question is to be answered by reference to the purpose of s 459 and the FW Act as a whole.

40    At this point the first respondent’s concessions become significant. Section 459(3) seems to authorize an extension of up to 30 days. However the sub-section also seems to limit the total period to 60 days. Clearly, the two provisions must be read together. If s 459(3) is read as permitting an order for extension during the initial 30 day period, then the discretion to extend the period by up to 30 days could be given full effect, depending upon the circumstances in which the extension was sought. However, if the provision is read as authorizing an extension after expiry of the initial 30 day period, then either the power to extend must permit extension beyond a total of 60 days from the declaration of the poll, or the discretion must be limited to the grant of an extension expiring no later than 60 days after such declaration. The first respondent seeks to deal with this problem by conceding that no extension may be granted beyond the 60 day period, but the section speaks only of an extension for a period of up to 30 days. In other words, the section speaks of one period of 30 days and an extension of up to 30 days. It does not speak of a total period not exceeding 60 days. If Parliament intended that the length of any extension should depend upon when the application for an extension was made, it would have said so.

41    The second concession is of more significance. Once it is conceded that any extension has no retrospective effect, any subsequent period looks much less like an extension of the initial 30 day period and much more like a “fresh” period.

42    As I have said, the whole of Div 8 seems to be designed to regulate the use of protected action in support of industrial negotiations. No doubt, both the original 30 day time limit and the limited power of extension are, in part, designed to enable employees to control their representatives. However it is likely that these limits are also designed to assist the employer to cope with the uncertainty of threatened industrial action and the consequences of actual industrial action. In this context, thirty days is quite a long time over which to negotiate. One can imagine that a point might be reached at which the employees’ representative wishes to maintain the pressure of threatened protected action beyond the initial 30 day period. At this point the FWC has a discretion as to whether to grant an extension, having regard to all relevant circumstances. Whatever the purpose of the provision, no legitimate purpose would be served by allowing renewal after the initial 30 day period had expired. To my mind, it is unlikely that Parliament intended that the uncertainty of threatened industrial action, to both employees and employers, should be allowed to lapse and then resurrected. The facilitation of meaningful negotiations would be best achieved by requiring that any application for an extension be made during the initial 30 day period. Such an extension would then merely extend the time during which an existing threat continued. To allow the threat to lapse, and then be re-instated would disrupt the environment in which negotiations were proceeding, and would greatly increase uncertainty for both the employer and the employees.

43    In any event, the authorities seem to support an approach to the word “extend” and its analogues which recognises the element of continuity or connection demonstrated in the dictionary meanings. For example, in Brooke v Clarke (1818) 1 B. & Ald 396, 106 ER 146 at 148 Lord Ellenborough CJ said:

The word extension imports the continuance of an existing thing.

44    Both parties refer to the decision of the High Court in Sanofi v Parke Davis Pty Ltd (No 2) (1982) 152 CLR 1. That case concerned an application to extend the term of a patent pursuant to s 90 of the Patents Act 1952 (Cth). The section required that such an application be made at least six months before expiration of the term of the patent, or within such further period as the relevant court might allow. The question was whether an extension of time within which to apply for such an extension of the original term of the patent might be granted after expiry of such term. The Full Federal Court (Bowen CJ and Ellicott J, Deane J dissenting) held that there was no power so to extend time. The High Court (Mason ACJ, Wilson, Brennan and Dawson JJ, Murphy J dissenting) held that there was power to extend time. It is clear that all members of the High Court and of the Full Court considered that the question fell for determination in the context of the Act as a whole. All, save for Murphy J considered that established patent practice was a relevant consideration.

45    The case concerned the power to “allow” a “further period” of time in which to apply for an extension of the term, so that the meaning of the word “extend” did not directly arise. The word was used in connection with the term of the patent, not in connection with the time for applying for an extension of that term. Nonetheless, one aspect of the High Court’s reasoning is presently relevant.

46    A problem addressed by both the High Court and the Full Court was the situation of persons who acted in breach of the patent, following its expiry and before its extension. Section 94 authorized the imposition of “restrictions, conditions and provisions” upon any extension. In its submissions, the present applicant referred to this issue, pointing out that in this case, there was no power to impose conditions to protect rights which may have vested in an employer between the expiry of the initial 30 day period and any order for extension. The first respondent suggested that the discretionary nature of the power to extend provided a basis for dealing with that problem. That proposition is not convincing. Whilst it may be appropriate for the FWC to take account of accrued rights in deciding whether to grant an extension, there appears to be no power to grant an extension subject to conditions. Further, even if conditions could be imposed in a way which would bind the applicant for an extension, it is not clear to me that those conditions would bind individual employees or other union officials. Of course, on the first respondent’s case, the problem does not arise as it submits that any extension has no retrospective effect.

47    In truth the first respondent’s concessions highlight weaknesses in its approach. Understandably enough, it has developed its preferred construction of s 459 and then sought to justify it as best it can. However the concept of “extension” generally implies an element of continuity or connection between the unextended object or period and the extension of it. I accept that if the period were to be “extended” so that there was continuity between the initial 30 day period and any further period allowed pursuant to s 459(3), the latter period might well be described as an “extension” of the former period, even if the “extension” was allowed after the initial period had expired. However where there is a break between the initial period and the extended period, there is a conceptual difficulty in so describing the latter period.

48    In my view if Parliament intended that the power to extend should be limited to the balance of the 60 day period, it would have said so. The language used (a power to extend up to 30 days) is more consistent with the intention that any application be made before expiry of the initial 30 day period, and that such extension be for a period appropriate in the circumstances, having regard to the state of negotiations and the reasonableness of extending the threat of protected industrial action. Similarly, had it been contemplated that an application for extension might be made after expiry of the initial 30 day period, the question of retrospectivity would have been expressly addressed. The uncertain consequences of a failure to do so are so obvious that Parliament could not have overlooked them.

RELIEF

49    The first respondent challenges the jurisdiction of the Court to grant the relief sought and its appropriateness. It submits that certiorari will not be granted unless in support of other relief. For present purposes I accept that for the High Court, the availability of certiorari is limited as explained by McHugh J in Re MIMA; ex parte Durairajasingham (2000) 168 ALR 407 at [29]. His Honour there held that:

… unless the prosecutor can demonstrate that he is entitled to obtain an injunction, mandamus or prohibition against the respondents or one or more of them, the court has no power to grant certiorari quashing the decision of the tribunal.

50    The only other relief sought is a writ of mandamus. The first respondent submits that mandamus will not be granted because “there is no duty that can be performed”, apparently because no extension of time may now be granted, the alleged maximum period of 60 days having expired. That submission overlooks the fact that the Commission extended time, in my view, wrongly. It is that decision which is the subject of the present application.

51    The availability of mandamus was addressed by Mason CJ in Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1993-1994) 182 CLR 51 at 80-81 where his Honour said:

The Appeal Division granted relief in the nature of mandamus by directing the Commissioner to refund the amount claimed. The Commissioner submitted that mandamus would not result in an order for payment of that money.

Although the argument was not elaborated, it is to be understood as invoking the principle that mandamus requires the exercise of the relevant statutory discretion rather than its exercise in a particular way … . But that principle means no more than that the administrator to whom mandamus is directed will be required to perform the legal duty to the public which is imposed by the statute and ordinarily that duty is limited to exercising the statutory discretion according to law, there being no obligation to exercise the discretion in a particular way. However, if the administrator is required by the statute to act in a particular way and in certain circumstances, or if the exercise of a statutory discretion according to law in fact requires the administrator to decide in a particular way, so that in neither case does the administrator in fact have any discretion to exercise, then mandamus will also issue to command the administrator to act accordingly … . Moreover, it has long been recognized that mandamus will issue as a remedy for certain forms of abuse of discretion upon the principle that “the improper or capricious exercise of discretion is a failure to exercise the discretion which the law has required to be exercised” … .

At one time it seems to have been thought that mandamus would not be granted to enforce payment of money by the Crown … . However, in principle there can be no objection to the grant of relief by mandamus directed to a statutory officer requiring that officer to pay money if there be a public legal duty to so act … . In the present case, the duty to exercise the discretion was a public duty … and it was a discretion which, in the circumstances of this case, could be exercised only in one way. Consequently, mandamus will issue not only to compel exercise of the discretion according to law but also to compel it to be exercised in the way in which it must be exercised.

See also pp 87-88 (per Brennan J).

52    I consider that the FWC had no discretion to do other than dismiss the application for an extension. Mandamus will be granted in order to compel it to do so. Further, it cannot be said that, in this case, the order extending time has no ongoing significance. It operates to protect industrial action taken during the period of the extension. In any event, it is necessary that the order made by the FWC be set aside in order that it be able to exercise its power to dismiss the application. Thus, even if certiorari is not available as a “stand alone” remedy, it would be granted in this case in support of the mandamus.

53    However this Court has held that it may grant certiorari as a “stand alone” remedy. In Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2007) 157 FCR 260, the Full Court (Spender, French and Cowdroy JJ) considered that question. The Full Court noted that whilst the Federal Court may derive jurisdiction by way of remitter from the High Court pursuant to s 44 of the Judiciary Act 1903 (Cth) (the “Judiciary Act”), it also derives jurisdiction by virtue of the operation of s 39B of that Act. The Full Court also noted that pursuant to s 23 of the Federal Court of Australia Act (1976) (Cth) (the “Federal Court Act”):

(t)he Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate”.

54    The Full Court accepted that the High Court could only grant certiorari as an ancillary or alternative remedy, and that where the High Court remits part of a matter and/or remits a matter subject to directions, the receiving court’s jurisdiction may be “constrained”. However the Full Court also concluded that where an entire matter is remitted, without directions, the receiving court may, where appropriate, exercise its own additional jurisdiction in connection with the remitted matter. Thus the Court concluded at [66]:

On that basis a claim for certiorari as a stand alone remedy or for declaratory relief could be raised in the remitted proceedings even though it might not have been able to be raised in the High Court.

55    It would seem to follow that, pursuant to s 23 of the Federal Court Act and absent an operative privative clause, this Court may, when considering a matter properly within its original jurisdiction (and not the subject of remitter from the High Court) grant certiorari as a “stand alone” remedy.

56    In CFMEU v AIRC, the Court eventually declined to grant certiorari. The reason for such refusal was that the appeal to the AIRC had lapsed by virtue of certain statutory provisions. Thus the Court concluded that the proceedings were at an end, and that the decision had no legal consequences. Thus certiorari could not or, as a matter of discretion, should not be granted.

57    The first respondent challenges that decision without really developing its reasons for so doing. After briefly summarizing the decision (in paras 6, 7 and 8 of its supplementary submissions), the respondent then submits that the Full Court did not address:

… the interaction between s 39B(1) [of the Judicary Act] which is explicitly stated to be subject to subsections (1B), (1C) and (1EA) but not (1A) and (1A) [sic].

58    It is not clear whether the second reference to subs 39B(1A) is a redundancy or an erroneous description of another subsection. In any event, the first respondent submits that:

… a question arises as to whether there is a mandate to read the general conferral of jurisdiction in subsection (1A)(c) as overcoming the limitations in subsection (1) and the Full Court does not address it.

59    The limitations imposed by subs 39B(1B), (1C) and (1EA) upon the conferment of jurisdiction by s 39B(1) are not presently relevant. The first respondent’s point seems to be that the grant of jurisdiction pursuant to in s 39B(1) should be treated as exclusively defining the jurisdiction to grant relief of the kind referred to in s 75(v) of the Constitution, so that the Federal Court’s jurisdiction in this area is the same as that of the High Court. Although the Full Court did not address such an argument expressly, insofar as concerns s 39A(1A)(c) its reasoning clearly rejected it. The Full Court did not hold that s 39B(1A)(c) (or s 75(v)) conferred jurisdiction to issue writs of certiorari. Rather, the Full Court held that the subject matter jurisdiction conferred by s 39B(1A)(c) and the power to decide matters and grant remedies conferred by s 23 of the Federal Court Act effectively authorize the Court, where appropriate pursuant to the general law, to grant relief of the kind described in the general law as “prerogative writs”. Those writs are similar in form to, but not the same as writs issued pursuant to s 75(v) of the Constitution, the latter writs now generally being described as “constitutional writs”. Of course certiorari is not one of those constitutional writs. However the category of “prerogative writs” includes certiorari. There may be some intuitive resistance to the conclusion that, in a sense, the decision in CFMEU v AIRC attributes wider powers to the Full Court of this Court than are conferred on the High Court by the Constitution. However at [58], the Full Court justified any such anomaly by pointing out that the Federal Court has a much wider original jurisdiction than does the High Court.

60    The first respondent then makes three, apparently related submissions. The first is that the Full Court did not address “the extent to which the limited jurisdiction under s 847(2) of the [Workplace Relations Act 1996 (Cth)] (the “Workplace Relations Act”) should be read as limiting the general jurisdiction conferred by s 39B(1A)(c)”. The second submission is that in Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168, the High Court held that s 39B(1) should be construed as conferring on this Court jurisdiction corresponding to that conferred upon the High Court by s 75(v) of the Constitution. The third submission is that care should be taken in applying the decision in CFMEU v AIRC to the FW Act because the FW Act and the Workplace Relations Act are “relevantly different”

61    As to the decision in Richard Walter, it is authority for the proposition outlined above, but it says nothing about the decision in CFMEU v AIRC concerning the Federal Court’s power to grant certiorari as a “stand alone” remedy. As to s 847(2) of the Workplace Relations Act, it effectively facilitates remitter by the High Court to the Federal Court of matters falling within s 75(v) of the Constitution, such remitter being pursuant to s 44 of the Judiciary Act. Again, the submission has nothing to do with the question of certiorari as a “stand alone” remedy in the exercise by the Federal Court of its jurisdiction pursuant to s 39B(1A)(c).

62    I turn to the differences between the Workplace Relations Act and the FW Act. Section 562 of the FW Act confers jurisdiction upon this Court “in relation to any matter (whether civil or criminal) arising under this Act”. Section 563 then provides that certain matters are to be heard in the Fair Work Division of the Court. These matters are all within the jurisdiction conferred by s 562. Although s 563 may appear to include all matters which could conceivably fall within that jurisdiction, it does not purport to be exhaustive in that sense. Indeed, if it were intended that all matters in which the Court had jurisdiction pursuant to s 562 be heard and determined in the Fair Work Division, it would have been sufficient simply to say so, without identifying the specific classes of matter which appear in s 563.

63    Included in the matters specified in s 563 are:

    an application for a writ of mandamus or prohibition or an injunction against a person holding office under the FW Act (s 563(b)); and

    a matter remitted to the Federal Court by the High Court (s 563(j)).

64    For present purposes I accept that s 563(b) should be construed as not conferring jurisdiction to grant certiorari as a stand alone remedy in a matter arising under the FW Act.

65    The grant of jurisdiction pursuant to s 847(1) of the Workplace Relations Act was, at least potentially, narrower than the grant pursuant to s 562 of the FW Act. The former grant was limited to applications, actions, questions referred to the Court, appeals, penalties or prosecutions, all of which were to be “under” and/or “against” “this Act” or a section of the Act. Pursuant to s 847(2), for the purposes of s 44 of the Judiciary Act, the Court was taken to have jurisdiction to hear matters in which mandamus, prohibition or an injunction was sought against an officer of the Commonwealth holding office under the FW Act or the Coal Industry Act 1946 (Cth). I see nothing in the differing provisions of the Workplace Relations Act and the Fair Work Act which undermines the reasoning in CFMEU v AIRC.

66    The first respondent then submits that s 563 of the FW Act should be read as “indicating” the extent and content of the jurisdiction conferred by s 562. Support for this submission is said to be found in the decision of the Full Court in CFMEU v CSBP Ltd (No 2) (2012) 202 FCR 149 at [12]-[14]. That was an appeal from a decision of a single Judge of this Court exercising the original jurisdiction conferred by s 562. At [14] the Full Court pointed out that s 563 does not confer jurisdiction, but merely provides that certain matters within jurisdiction are to be heard in the Fair Work Division. The case otherwise establishes that the Full Court, in hearing an appeal from a single Judge exercising the Court’s original jurisdiction under s 562, exercises the appellate jurisdiction of the Court under the Federal Court Act, and not any power conferred by the FW Act. Nothing in the judgment supports the proposition that the jurisdiction conferred by s 562 should be limited by reference to the matters identified in s 563.

67    The first respondent also relies upon the decision of the Full Court in AMIEU v FWA (No 2) (2012) 203 FCR 430 at [9]-[11] (per Jessup and Tracey JJ). In that passage, their Honours recognized that this Court has jurisdiction to issue mandamus, prohibition or an injunction to a person holding office under the FW Act, pursuant to either s 562 of that Act or s 39B(1) of the Judiciary Act. Unlike the other paragraphs of s 563, paras (b) and (j) (summarized above) do not expressly limit their subject matter by reference to the FW Act or a section thereof. However Jessup and Tracey JJ pointed out that s 563 deals with the jurisdiction conferred by s 562 which is limited to matters arising under the FW Act. Thus the matters identified in subs 563(b) and (j) must also be matters so arising. At [12] their Honours also recognized that the jurisdiction conferred by s 39B(1) was not so limited. Thus it cannot be said, as the first respondent submits, that the power under s 39B(1) was “equated” to the jurisdiction under s 562. The decision offers no support for the first respondent’s submission.

68    Finally, the first respondent refers to the Explanatory Memorandum relating to the enactment of s 562. It indicated that the jurisdiction conferred by that proposed section was in addition to (and was not intended to derogate from) the jurisdiction conferred by s 39B with respect to mandamus, prohibition and injunctions against officers of the Commonwealth. By way of example, the memorandum stated that the Court would have original jurisdiction in any matter in which mandamus, prohibition or an injunction was sought against a “FWA member”. Again, I see in that memorandum no support for the first respondent’s case.

69    I also see no reason for departing from the view expressed in CFMEU v AIRC. In the Federal Court certiorari may be granted as a “stand alone” remedy pursuant to s 39B(1A)(c) of the Judiciary Act and s 23 of the Federal Court Act. However, in the present case I have concluded that mandamus should be granted, and so the question does not arise.

ORDERS

70    I would issue a writ of certiorari directed to the FWC, quashing the decision made by Commissioner Bissett on 25 March 2013, and a writ of mandamus directed to the FWC, directing that it proceed in accordance with law to determine the relevant application by dismissing it. I would order that within seven days, the parties bring in appropriate draft orders, giving effect to these conclusions.

Associate:

Dated:    19 February 2014