FEDERAL COURT OF AUSTRALIA

Spotless Services Australia Ltd v The Honourable Senior Deputy President Jeanette Marsh [2004] FCAFC 136

INDUSTRIAL LAW – termination of employment - application for prerogative relief – whether Deputy President of the Australian Industrial Relations Commission failed to exercise statutory obligation imposed by s 170CE(7) of the Workplace Relations Act 1996 (Cth) - whether the issue of certificates pursuant to s 170CF(2) of the Workplace Relations Act 1996 (Cth) removed those matters, the subject of the certificates, from the jurisdiction of the Australian Industrial Relations Commission – no jurisdictional error, error of law or wrongful failure to exercise jurisdiction - application for order nisi refused

Judiciary Act 1903 (Cth) s 44

Workplace Relations Act 1996 (Cth) ss 170CE(7), 170CEA, 170CF(2), 170CFA

SPOTLESS SERVICES AUSTRALIA LTD v THE HONOURABLE SENIOR DEPUTY PRESIDENT JEANETTE MARSH, THE HONOURABLE DEPUTY PRESIDENT NICHOLAS BLAIN AND COMMISSIONER BARBARA DEEGAN AS MEMBERS OF A FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION and THE HONOURABLE BRENDAN McCARTHY, A DEPUTY PRESIDENT OF THE COMMISSION and MARION WOOKEY and TERRY TOPHAM

W 225 OF 2003

WILCOX, MARSHALL and JACOBSON JJ

19 MAY 2004

PERTH

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The application for an order nisi be refused.

2.         The question of costs be reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT

1                     This application for prerogative relief was remitted to this Court by the High Court of Australia pursuant to s 44 of the Judiciary Act 1903 (Cth).

2                     The applicant, Spotless Services Australia Ltd (“Spotless”), challenges a decision of a Full Bench of the Australian Industrial Relations Commission (“the Full Bench”) made on 7 April 2003.  Spotless also complains of the alleged failure of Deputy President McCarthy to deal with a jurisdictional issue in the course of proceedings before him regarding the termination of the employment of the second respondents, Ms Wookey and Mr Topham (“the employees”).

3                     The issue for determination in the proceeding is whether the Australian Industrial Relations Commission (“the Commission”) is obliged to hear a motion for the dismissal of a proceeding concerning termination of employment notwithstanding that no extant issue in respect of that application is before the Commission.

Factual Background

4                     On 21 February 2002, the employees filed applications in the Commission for relief in respect of the termination of their employment by Spotless.  In their applications the employees claimed that their terminations took effect on 14 February 2002.

5                     In appearance forms dated 1 and 7 March 2002 in the Wookey and Topham applications respectively, Spotless’ representative ticked the box on each form alongside the following notation:

“I do not object to the Commission extending the time for lodgement.”

6                     As at 7 March 2002, the employees did not consider that they required an extension of time to bring their applications.  Under s 170CE(7) of the Workplace Relations Act 1996 (Cth) (“the Act”) the applications were required to be lodged with the Commission within 21 days after the terminations took effect.  If the terminations took effect on 14 February, as the employees alleged in their originating process, no extension was necessary.

7                     As the employees asserted that their applications were within time and Spotless did not object to an extension, if one were required in each matter, the issue did not arise for the Commission’s consideration unless and until Spotless exercised its rights under s 170CEA of the Act to move for dismissal of the applications on jurisdictional grounds.

8                     On 7 June 2002 a conciliation conference in each matter was held before Deputy President McCarthy.  At that conference Spotless foreshadowed that it may exercise its rights under s 170CEA if the matters did not settle.

9                     On 9 July 2002 those aspects of the applications which asserted that the terminations were harsh, unjust or unreasonable were settled.  That left in dispute the contentions that the terminations involved contravention of ss 170CK, 170CL and 170CM.

10                  On 26 September 2002, Deputy President McCarthy certified, pursuant to s 170CF(2), that all reasonable attempts to settle each matter by conciliation have been made and are not likely to be successful in respect of the alleged contraventions of ss 170CK, 170CL and 170CM.

11                  As the certificates referred to conciliation as being unsuccessful or likely to be unsuccessful in respect of ss 170CK, 170CL and 170CM, the employees were obliged to elect within seven days to commence proceedings in the Court, or in respect of s 170CM a court of competent jurisdiction, or lose their right to proceed further: see s 170CFA(7).  When it granted the certificates the Commission’s role in each matter came to an end.  Although it had foreshadowed action, Spotless had not, by 26 September 2002, moved for dismissal of the applications on jurisdictional grounds, that is, on the ground that they were out of time.

12                  The employees, on 1 October 2002, filed notices of election to bring proceedings in the Court for contravention of s 170CM, alleging insufficient notice of termination in each matter.  Thereafter, on 15 October 2002, the employees commenced proceedings in this Court for orders under s 170CR in respect of the alleged contraventions of s 170CM.

13                  On 4 November 2002, Spotless filed motions in the Commission under s 170CEA(2) seeking dismissal of the applications on jurisdictional grounds.  The motions were filed despite the fact that there was no longer any extant proceeding before the Commission, the employees having elected to proceed in the Court and having lodged applications based on these elections.

14                  On 19 November 2002, Spotless wrote to the Commission, seeking a hearing of its s 170CEA(2) motions.  In response, on 22 November 2002, without notice to the employees and without any extant proceeding in the Commission’s jurisdiction before him, Deputy President McCarthy purported to revoke the certificates, which he had issued on 26 September 2002.

15                  On 28 November 2002, Deputy President McCarthy purported to revoke his order of 22 November 2002.

16                  Spotless applied to the Full Bench for leave to appeal from Deputy President McCarthy’s alleged failure to hear its motions concerning jurisdiction and from his decision on 28 November 2002 to revoke his order of 22 November 2002.

17                  In its decision dated 7 April 2003, the Full Bench set aside the Deputy President’s orders of 22 and 28 November 2002, thereby leaving in place the issuing of the certificates on 26 September 2002.

18                  The Full Bench considered that the Deputy President was “functus officio” when he issued his orders on 22 and 28 November 2002.

The draft order nisi

19                  In its draft order nisi, Spotless seeks the following relief:

(i)                 a writ of certiorari directed to the Full Bench and the Deputy President to quash the orders made on 7 April 2003 and 28 November 2002 respectively, and

(ii)                a writ of mandamus compelling the Deputy President to hear its jurisdictional motions.

The grounds

20                  The grounds raised in support of the draft order nisi allege that:

(i)                 the Deputy President “failed to exercise the statutory obligation imposed upon him” by s 170CE(7) by “failing to consider whether the second respondent’s applications before him were within jurisdiction”, and

(ii)                the Full Bench failed to address the question of jurisdiction on the appeal “when it was bound to do so”.

Consideration

21                  We consider that the grounds relied upon by Spotless do not disclose any error of law, jurisdictional error or wrongful failure of the Commission to exercise jurisdiction.

22                  The Deputy President was not obliged to consider any application for dismissal of the matters before him on the basis that they were allegedly out of time until a motion seeking that relief was filed under s 170CEA.  No such motion was filed until after the Deputy President had issued certificates under s 170CF.  By the date of the motion, the employees had elected to bring Court proceedings pursuant to s 170CFA and those proceedings had been commenced.  At the time the relevant motions were filed, the Commission was not seized of the applications by the employees in respect of which the motions sought dismissal on jurisdictional grounds.

23                  Consequently the Deputy President had no jurisdiction to revoke his orders under s 170CF or to otherwise deal with the applications which, after his s 170CF certificates had been issued, were no longer before him.  It follows that the Deputy President did not fail to exercise any statutory obligation imposed on him by s 170CE(7).  He cannot be said to have failed to consider applications which were not properly before him.

24                  In its submissions before us, Spotless contended that “the jurisdiction of the Commission is always alive”.  No authority was cited in support of that submission.  We reject it as inconsistent with the scheme of the Act set out in sub-div B of Div 3 of Part VIA.

25                  Significantly, although senior counsel for the applicant conceded that it would not be open to an employer to make an application under s 170CEA after a court had assessed damages pursuant to s 170CR, and for the Commission then to revoke a certificate, senior counsel was not able to suggest a satisfactory point of time at which impossibility would arise.  It seems to us there is no basis for drawing the line at any point after issue of the certificate.

26                  Spotless raised in its submissions matters which were not referred to in the grounds in support of its draft order nisi.  The first such issue concerned procedural fairness.  Spotless contended that it had a legitimate expectation that its “jurisdictional objection” would be heard.  It had no right to expect anything of the kind unless it filed a relevant motion at a time when the Commission was seized of the applications by the employees.  When the motions were filed the Commission’s role in the applications had ceased.

27                  Spotless also contended that the Deputy President should have re-opened the applications so as to permit the matters to be heard.  The Deputy President had no jurisdiction to re-open the applications because under the statutory scheme provided by the Act the applications were no longer before the Commission.

28                  The application for an order nisi is devoid of merit and must be refused.

Associate:

Dated:              19 May 2004