FEDERAL COURT OF AUSTRALIA

Teekay Shipping (Australia) Pty Ltd v Auld [2020] FCAFC 19

ORDERS

THE COURT ORDERS THAT:

1.    A constitutional writ of mandamus be issued to the twenty second respondent, the Fair Work Commission, requiring the Commission to answer, by decision, such question or questions which were posed to it for answering by the Commission’s President under the Fair Work Act 2009 (Cth).

2.    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

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    On 2 September 2019, the Fair Work Commission (the Commission) issued what purports to be a decision in respect of proceedings between Mr Auld and a number of other employees and the respondent Teekay Shipping (Australia) Pty Ltd (Teekay Shipping) (the applicant in these proceedings): see Auld and Ors v Teekay Shipping (Australia) Pty Ltd [2019] FWCFB 6047. It is necessary to use the qualification, purported because one thing which is not manifest from the document entitled “Decision”: is, with respect, any decision of the Commission at all. In substance, the document entitled “Decision” is nothing more than reasons for a decision which has never been pronounced, much less has it ever been translated into a formal order of the Commission.

2    Teekay Shipping has sought constitutional writs and related relief in this Court on the premise that there was a decision of the Commission. The background to the proceeding concerns a controversy arising from the dismissal of Mr Auld and other respondents and whether or not there was consultation according to law and a genuine recovery. Much lies behind whether there was consultation according to law.

3    The President of the Commission directed that a Full Bench perform a particular function but there is something of an open question as to whether there was any formal direction. The appeal book is noteworthy for the absence of any such formal direction. What it does contain is a document entitled “Question To Be Determined By Full Bench”. The question posed is “Does the model consultation term, taken to be a term of the Teekay Shipping (Australia) Pty Limited Seagoing Ratings Dry Cargo Enterprise Agreement 2015, apply in substitution of, or in conjunction with, clause 9 of that agreement?”.

4    Statutory authority for the posing of such a question by direction, on the face of the Commission’s “Decision” is said to be found in s 615A(2) of the Fair Work Act 2009 (Cth) (the Act). It may be that, alternatively, authority is to be found in s 615 of the Act. Yet, further, the Commission has power under s 589 of the Act to make an interim decision. However that may be, what is manifest is that even the particular question just identified has not been answered by a decision of the Commission.

5    It also appears to be the case that there was what one might term, with respect, an evolution of issues as the proceedings came to be conducted before a Full Bench of the Commission. It is necessary to say “appears”, because there has not even been the identification of any further or supplementary question in the way in which the original question was, at least, identified, much less a formal direction of the President for the additional answering of that question.

6    These necessary formalities of direction may be, by consent of the parties having regard to their conduct, able to be cured nunc pro tunc. Even so, that would still leave this Court bereft of any formal decision of the Commission.

7    The difficulties that are exposed by the absence of any formal decision, be it responsive to the question originally posed or such other question upon which everyone, including the Commission, embarked, albeit informally, became apparent to counsel in the course of exchange with the Court.

8    The position which came to be promoted jointly by the applicant, Teekay Shipping, and the active party respondents, the employees Mr Auld and others, was that there was a need for the Commission to be required to provide a decision.

9    It is to be remembered that the jurisdiction to issue constitutional writs is concerned with the correction of jurisdictional error in the act or failure to act on the part of an officer of the Commonwealth. What has occurred here, with respect, is that the Commission has failed to act as required, apparently at least, by a direction that it answer the question identified. And it seems, also, by answering another question which came to be identified but in the most informal of ways.

10    It is the decision not the reasons for decision, which is the subject of the constitutional writ jurisdiction. That being so, it seems to me that the position which the parties came to promote is one which should be followed by the Court. In other words, what I would do is to direct that a constitutional writ of mandamus issue to the 22nd respondent, the Commission, requiring the Commission to answer, by decision, such question or questions which were posed to it for answering by the Commission’s President under the Act.

Associate:    

Dated:    24 February 2020

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

WIGNEY J:

1    I agree with the orders proposed by Logan J and with his Honour’s reasons.

Associate:    

Dated:        24 February 2020

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

ANDERSON J:

1    I agree with the orders proposed by Logan J and with his Honour’s reasons.

Associate:    

Dated:        24 February 2020

SCHEDULE OF PARTIES