FEDERAL COURT OF AUSTRALIA

Shea v TruEnergy Services Pty Ltd (No 1) [2012] FCA 628

THE COURT ORDERS THAT:

1.    The application for relief made by interlocutory application dated 8 May 2012 be refused.

2.    A further directions hearing be fixed for 2.15pm on 3 July 2012.

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

REASONS FOR JUDGMENT

Introduction

1    This application raises the question of the necessary degree of conformity between:

(a)    the claims made in an application to Fair Work Australia (“FWA”) pursuant to s 365 of the Fair Work Act 2009 (Cth) (“the Act”) alleging that a person’s dismissal was in contravention of Part 3-1 of the Act; and

(b)    the claims made in a subsequent “general protections court application in relation to the dispute” within the meaning of s 371(1) of the Act.

2    In this proceeding, the respondent, TruEnergy Services Pty Ltd (“TruEnergy”) seeks to strike out claims based on three of five complaints which the statement of claim dated 4 April 2012 alleges were (either separately or together) a reason for the dismissal of the applicant, Kate Shea. The respondent alleges that because the three complaints did not appear in Ms Shea’s application to FWA made pursuant to s 365 of the Act, they were not the subject of the FWA certificate under s 369 of the Act and the court consequently has no jurisdiction to determine alleged contraventions based upon them.

3    Although TruEnergy makes this interlocutory application, in these reasons, for convenience, I shall refer to TruEnergy as “the respondent” and to Ms Shea as “the applicant”.

4    The respondent also seeks access to the Investigation Report dated 15 June 2011 referred to in paragraph 8 of the statement of claim.

5    The interlocutory application dated 8 May 2012 seeks the following relief:

1.    The following paragraphs of the Statement of Claim dated 4 April 2012 be struck out, on the ground that they are beyond the jurisdiction of the Court, in that they were not the subject of the “dispute” referred to in the Certificate of Fair Work Australia dated 29 March 2012, which is annexed to the Statement of Claim:

(a)    6(b);

(b)    7;

(c)    9;

(d)    13;

(e)    15(b), (c) and (e);

(f)    16, in so far as it relates to sub-paragraphs 15(b), (c) and (e); and

(g)    19(b), (c) and (e).

2.    (a)    For the purposes of this proceeding only, each party be permitted to have access to a copy of the investigation report referred to in paragraph 8 of the Statement of Claim (the Investigation Report).

(b)    To permit the Applicant to have access to the Investigation Report as contemplated in (a) above, the Respondent shall provide to the solicitors for the Applicant a copy of the Investigation Report as soon as reasonably practicable.

6    The application was supported by written submissions dated 16 May 2012 and the affidavit of David Woodman of the solicitors for the respondent, affirmed on 8 May 2012.

7    The application was opposed. Written submissions dated 25 May 2012 were filed in opposition.

Background

8    The applicant was employed by the respondent for a little over five years between 8 December 2006 and 6 February 2012 as its Director of Corporate and Government Affairs.

9    By an originating motion filed on 4 April 2012, the applicant alleges that she was employed pursuant to a contract of employment which was partly written and partly implied, and that at all relevant times during her employment, she was able to make a complaint in relation to her employment on a number of alleged bases implied by law under various nominated Acts and the respondent’s Code of Conduct, Equal Opportunity and Anti-Discrimination Policy and Grievance Policy.

10    The statement of claim alleges that the applicant made five successive complaints (denominated the First, Second, Third, Fourth and Fifth Complaints respectively) in relation to her employment, which were complaints she was “able to make” within the meaning of s 341(1)(c)(ii) of the Act, and that the making of each of the complaints constituted her exercise of a workplace right within the meaning of s 340(1)(a)(ii) of the Act.

11    Each complaint is separately alleged in the statement of claim. Its date or approximate date, the subject matter, and in some cases the place in which, and/or the person to whom, the complaint was made have been identified.

12    The complaints alleged are as follows:

1.    The First Complaint made on 24 February 2010 to David Purvis, about sexual harassment.

2.    The Second Complaint made on 5 April 2011 to Richard McIndoe, about the above alleged sexual harassment.

3.    The Third Complaint made on 15 June 2011 to Ms Patrizia Mercuri, an investigator retained to investigate the Second Complaint, about the conduct of four employees of the respondent (including the two persons to whom the First and Second Complaints were made).

4.    The Fourth Complaint made on 21 June 2011 to Mr McIndoe about the manner in which the applicant’s concerns regarding sexual harassment were dealt with and the deficiencies of the Investigation Report produced by Ms Mercuri.

5.    The Fifth Complaint made on 4 October 2011 to Mr McIndoe about the respondent’s purported termination of the applicant’s employment.

13    The statement of claim alleges that the Investigation Report prepared by Ms Mercuri was provided to the respondent on 15 June 2011, but the respondent refuses to provide the applicant with a copy.

14    The statement of claim alleges that on 16 June 2011, the applicant went on paid personal leave and that on 4 October 2011, Mr McIndoe handed her a letter entitled “termination of employment” or similar, which she handed back, after which Mr McIndoe withdrew the purported termination of the applicant’s employment.

15    The statement of claim alleges that on 10 October 2011, the applicant and the respondent entered a deed of settlement, whereby the First, Second, Third and Fourth Complaints were resolved. By the terms of the deed of settlement, the Investigation Report was to be stored confidentially in the office of the CLP Director, Group Human Resources in Hong Kong and the respondent undertook not to retain a copy within its Australian offices.

16    The applicant returned to work on 10 October 2011, but on 6 February 2012 was dismissed on the stated basis of redundancy.

17    The statement of claim alleges that the applicant’s dismissal was adverse action under item 1(a) of s 342(1) of the Act, taken against her because she exercised a workplace right by making each of the Complaints, or for reasons including such reason or reasons, and that the respondent consequently contravened s 340(1) of the Act, a civil penalty provision, whereby the applicant suffered loss and damage.

18    The applicant seeks various remedies, including reinstatement, compensation, and the imposition of a pecuniary penalty on the respondent, to be paid to the applicant.

19    The Certificate under s 369 of the Act dated 29 March 2012 attached to the statement of claim states:

CERTIFICATE UNDER SECTION 369

Fair Work Act 2009

s.365 – Application to deal with contraventions involving dismissal

Matter No:    C2012/196

Applicant:    Ms Kate Shea

Respondent:    TRUenergy Services Pty Limited

COMMISSIONER LEWIN    MELBOURNE, 29 MARCH 2012

An application pursuant to s.365 of the Fair Work Act 2009 (the Act) was made by Ms Kate Shea alleging she was dismissed by TRUenergy Services Pty Limited in contravention of Part 3-1 of the Act.

Fair Work Australia conducted a conference to deal with the dispute on 29 March 2012.

Pursuant to s.369 of the Act, Fair Work Australia certifies that it is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.

[seal]

COMMISSIONER

IMPORTANT NOTE:

The person dismissed or an industrial association that is entitled to represent the industrial interests of the person dismissed has 14 days from the date of this certificate within which to make a general protections court application to the Federal Court of Australia or the Federal Magistrates Court for a civil remedy order, unless the court extends the time for making such an application.

20    By his affidavit affirmed on 8 May 2012, Mr Woodman exhibited the applicant’s “Application to FWA to deal with the General Protections Dispute” dated 5 March 2012. The FWA application stated that the alleged contraventions of Part 3-1 were contraventions of s 340 of the Act. The alleged contraventions were described in Annexure A, which referred to a complaint made on 24 February 2010 about sexual harassment and a complaint made on 15 June 2010 about the mishandling of the earlier complaint and deficiencies in the Investigation Report. Annexure A alleged that the applicant’s employment was terminated because she had exercised a workplace right by making the First Complaint, and further or alternatively, the subsequent complaint.

21    The respondent filed an “Employer’s Response to the FWA Application” dated 13 March 2012, which referred to and attached its letter to the applicant dated 6 February 2012 and stated that the applicant was dismissed because her position became redundant.

22    On 29 March 2012, Commissioner Lewin issued the certificate under s 369 of the Act.

23    After the applicant issued the present proceeding, there was correspondence between the parties.

24    The respondent’s solicitors, by a letter dated 23 April 2012 to the solicitors for the applicant, objected to the inclusion in the statement of claim of the complaints not referred to in the FWA application. The letter stated that in the latter, the applicant’s claim was that she was terminated because she exercised a workplace right by making one or more of only two specified complaints, but in the former, by making one or more of five specified complaints. The letter stated that the Federal Court’s jurisdiction was limited to the complaints which formed part of the dispute detailed in the FWA application and invited the applicant to file an amended statement of claim. The applicant’s solicitors responded that all the matters pleaded in the statement of claim were part of the same dispute.

Relevant legislation and LEGAL principles

25    The Act relevantly provides:

Division 8 – Compliance

Subdivision A – Contraventions involving dismissal

365    Application for FWA to deal with a dispute

If:

(a)    a person has been dismissed; and

(b)    the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to FWA for FWA to deal with the dispute.

366    Time for application

(1)    An application under section 365 must be made:

(a)    within 60 days after the dismissal took effect; or

(b)    within such further period as FWA allows under subsection (2).

(2)    FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account:

(a)    the reason for the delay; and

(b)    any action taken by the person to dispute the dismissal; and

(c)    prejudice to the employer (including prejudice caused by the delay); and

(d)    the merits of the application; and

(e)    fairness as between the person and other persons in a like position.

367    Application fees

(1)    The application must be accompanied by any fee prescribed by the regulations.

(2)    The regulations may prescribe:

(a)    a fee for making an application to FWA under section 365; and

(b)    a method for indexing the fee; and

(c)    the circumstances in which all or part of the fee may be waived or refunded.

368    Conferences

(1)    If an application is made under section 365, FWA must conduct a conference to deal with the dispute.

(2)    Despite subsection 592(3), FWA must conduct the conference in private.

369    Certificate if dispute not resolved

If FWA is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, FWA must issue a certificate to that effect.

370    Advice on general protections court application

(1)    If FWA considers, taking into account all the materials before it, that a general protections court application in relation to the dispute would not have a reasonable prospect of success, it must advise the parties accordingly.

(2)    A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.

371    General protections court applications

FWA conference to be held before application

(1)    A person who is entitled to apply under section 365 to FWA for FWA to deal with a dispute must not make a general protections court application in relation to the dispute unless:

(a)    FWA has issued a certificate under section 369 in relation to the dispute; or

(b)    the general protections court application includes an application for an interim injunction.

Time for application

(2)    Despite section 544, a general protections court application that requires a certificate under section 369 must be made within 14 days after the certificate is issued, or within such period as a court allows on an application made during or after those 14 days.

Jurisdiction under s 371 of the ACt

Relevant authorities

26    A certificate under s 369 is a precondition of the Federal Court’s jurisdiction to deal with a dispute.

27    In Newman v East Yarra Friendly Society Pty Ltd Trading As My Chemist Pharmacy [2011] FCA 1262 (“Newman”), an applicant who claimed that her employment was terminated by reason of pregnancy in contravention of s 772(1) of the Act obtained a certificate under s 777 stating that attempts to resolve the dispute were or were likely to be unsuccessful. The applicant then filed an unlawful termination application. It was common ground that the applicant was entitled to apply to FWA under s 365, obtain a certificate under s 369 and make a general protections application to the court under s 371.

28    North J stated at [5]:

It is a prerequisite to the exercise of the court’s jurisdiction that, for a general protections application under s 371, the applicant obtain a certificate issued by FWA pursuant s 369.

29    The applicant (having mistakenly applied to FWA under s 773 of the Act) did not have such a certificate. North J refused the applicant leave to amend as such a course could not overcome the want of jurisdiction. Rather, his Honour adjourned the matter in order to permit the applicant to rectify the problem by making a fresh application to FWA and seeking an extension of time in which to do so.

30    While Newman illustrates that a certificate under s 369 is a prerequisite of jurisdiction, it did not raise the question of the necessary degree of correlation between the dispute expressed in the FWA application and the dispute in the court application.

31    That issue arose in Cepu v Active Tree Services Pty Ltd [2011] FMCA 535 (“Cepu”), a decision of the Federal Magistrates Court, on which the respondent in this case particularly relied. In Cepu, FWA issued a certificate under s 369 which referred to alleged dismissal of four union members in contravention of Part 3-1 of the Act. After an application was made to the Federal Magistrates Court, an amended application and claim added further information.

32    The parties’ submissions in Cepu prefigured the controversy in this case, as the respondent submitted that the court lacked jurisdiction to hear and determine the application relating to various aspects of the amended claim.

33    The respondent in Cepu submitted that there was “a specific requirement for the dispute to be fully enunciated” (at [22]) and “the dispute” in that context was “exactly what is set out in the application, brought before Fair Work Australia” (at [22]). Further, if the certificate related to a limited matter and the subsequent application to the court included different bases for the alleged contravention, it would affect the conduct of the conciliation conference (at [25]).

34    The applicant in Cepu submitted that full enunciation of each and every point the subject of a claim was not required at the commencement or prior to the litigation, as the applicant might not know the full extent until a later stage. Rather, the conciliation conference was a step aimed at resolving the dispute, after which any court application should proceed with amendments permitted in the normal way (at [19]).

35    In Cepu, Coker FM apparently accepted (at [29] to [30]) that the court had no jurisdiction in relation to a “new point” arising after the issue of the certificate. His Honour observed that such issues could not be the subject of negotiation and the respondent would have no opportunity to consider them as part of the dispute. His Honour thus seemed to conclude that there was no jurisdiction to entertain “a new head of claim [that] had been included subsequent to the conduct of the conciliation conference and the issue of the certificate” (at [30]).

36    Coker FM accepted that the parties in Cepu acknowledged that the alleged new matters were the subject of negotiation at the conciliation conference (at [31]). His Honour apparently took the view that the certificate sought to be relied on did not include all matters discussed at the conciliation conference, but “only to those matters … detailed in the application brought before Fair Work Australia” (at [32]).

37    Coker FM concluded at [33] to [35]:

In the end, I have come to the decision that there is a requirement for there to be as full as possible particularity, in relation to the nature of the dispute, before the conduct of the conciliation conference is able to be considered. It was submitted to me that there is a “jurisdictional prerequisite for the commencement of the process, pursuant to section 365 of the Fair Work Act” and that is that “the dispute”, referred to Fair Work Australia, can only be “the dispute”, as alleged in the application made to Fair Work Australia.

It is clear that the use of the term “dispute” in each of the sections of the Act to which I have referred, section 365, section 368, section 369 and section 371, are one and the same dispute and not one which is simply a developing area of complaint or concern, following through from the negotiating process.

To consider otherwise is in my view a recipe for disaster, because it is clear that the assistance required from Fair Work Australia, in relation to the conciliation process, relates to as full as possible disclosure of the issues of the dispute and enunciation of the basis upon which an applicant seeks to bring the claim.

The parties’ submissions

38    In the present case, the respondent submitted that Coker FM’s reasoning in Cepu was persuasive and should be adopted. Accordingly, the dispute referred to in each of ss 365, 368, 369 and 371 was the same dispute, rather than “a developing area of complaint or concern, following through from the negotiating process” (at [34] of Cepu). Such an approach was necessary because the assistance from FWA in the conciliation process required the disclosure of the issues in dispute and the basis of the proposed claim to be as fully enunciated as possible.

39    The respondent submitted that in the present case the dispute set out in Annexure A to the FWA application (the subject of the certificate under s 369) and the dispute in the statement of claim, were not the same dispute, as required by the legislation. While word-for-word identicality was unnecessary, there was a substantive difference, because the Second, Third and Fifth Complaints alleged in the statement of claim were not referred to or identified in Annexure A to the FWA application. They were thus not part of the dispute in respect of which FWA issued the certificate under s 369 and the court lacked jurisdiction to determine alleged contraventions based upon them.

40    The applicant bears the onus of establishing the adverse action and that each complaint was a complaint which she was able to make in relation to her employment. While the respondent conceded the adverse action (dismissal), it foreshadowed a possible challenge to the status of some of the alleged complaints. The respondent, being subject to the reverse onus in s 361 of the Act, submitted that it should not be required to prove, in relation to the three “new” complaints, that the applicant’s dismissal was for reasons not including the making of those complaints. The respondent also submitted that by the combined effect of s 546(2) of the Act and the penalty set out in s 539, item 11, a penalty of $33,000 applied to each contravention. The inclusion of the three additional complaints was thus material, as it increased the respondent’s potential liability from $66,000 to $165,000.

41    The applicant denied that the inclusion of three additional complaints impermissibly enlarged the general protections dispute in respect of which the certificate was issued.

42    The applicant primarily submitted that the proceeding brought in this case was in substance the same dispute as that in FWA. Even if correlation between the dispute in FWA and that in the court application were necessary, the statement of claim in this case did not offend that requirement. Each dispute in essence alleged the applicant’s dismissal in contravention of Part 3-1, on the basis of complaints she had made, rather than redundancy as claimed by the respondent. The statement of claim merely expanded the complaints and alleged nothing new or different in substance.

43    The applicant further submitted that, in any event, references to the “dispute” in ss 365 and 371 did not, on a proper construction, require the court and the FWA applications to be identical or impose a requirement for strict correlation.

44    The applicant relied, in that context, on the characterisation of a dispute and a notice of dispute in commercial arbitrations. In Santos Pty Ltd v Pipelines Authority of South Australia (1996) 66 SASR 38, Debelle J (with whom Cox and Prior JJ concurred) stated at [44] – [45]:

Mr Bleby QC submitted that, in the absence of a formulated claim for a nominated price by one party and a formulated response by the other, there could be no dispute. It was essential for the existence of a dispute, he said, that the parameters of the dispute be defined. The argument seeks to restrict the ordinary meaning of the noun “dispute” and must fail. As the authorities already mentioned decide, a dispute exists once a claim is advanced and rejected.

The existence of a precisely formulated claim is not necessary to create a dispute …

45    In State of New South Wales v Austeel Pty Ltd [2003] NSWCA 392, Mason P (Meagher and Giles JJA concurring) at [17] and [18] stated that a notice of dispute set the scene for dispute resolution in “a fairly preliminary manner… [in] a context of laying the ground work for various tiers of informal and ultimately formal dispute resolution”. The court considered that while a notice of dispute had to capture the essence of an existing dispute or difference, at least from the perspective of the initiating party, it need not be drawn with all the formalities of a pleading and must be construed fairly in context.

46    In Australian Premium Coals Pty Ltd v Roche Mining Pty Ltd [2004] QSC 334 at [35] the court stated, in relation to a notice of dispute, that:

The requirement is not one of formality but of substance; the issue is whether the notice sufficiently “catches or describes the essence of the dispute” or is “reasonably sufficient in the circumstances” for Australian Coals to know and meet Roche’s complaints.

47    The applicant submitted that the nature of the dispute referred to in s 365 was similarly broad and the FWA application focused on a quick, informal and non-technical resolution preliminary to any court proceedings. Thus, like a notice of dispute in commercial arbitration, the FWA application only need capture the essence of the dispute, rather than present a polished and complete pleaded case. There was a requirement for substance, rather than form. Accordingly, an FWA application should not be assimilated to a pleading but was simply a means of bringing a dispute between parties to a conference before it became the subject of court proceedings.

48    The applicant submitted that an FWA application required an even broader approach than a notice of dispute in commercial arbitrations, because the latter established the matter for adjudication by the arbitrator, but general protections court applications under the Act did not establish the parameters of what the court must resolve.

49    The applicant submitted that the language of the statutory regime in Subdivision A did not require the FWA application to set out all substantial claims as a basis of jurisdiction to determine them in a general protections court application. In particular, the phrase “in relation to” in s 371 loosened any nexus with the dispute as stated in the FWA application. It was thus inappropriate to dissect the statement of claim, claim by claim, to ascertain whether each fact and allegation was replicated in the FWA application.

50    The applicant submitted that s 371(1) of the Act required only that a certificate be obtained before making a general protections court application if a person has been dismissed pursuant to an alleged a breach of Part 3-1.

Discussion

51    Part 3-1 of the Act deals with general workplace protections. Section 340(1) prohibits a person from taking adverse action against another person because he or she has exercised a workplace right. Section 341 defines “workplace right” to include, by s 341(1)(c), if the person is an employee, the ability to make a complaint in relation to his or her employment. Section 342(1) sets out the meaning of adverse action to include, by item 1(a), dismissal of an employee.

52    Division 8 is entitled “Compliance” and sets out separate legislative regimes for dealing with contraventions of Part 3-1 involving dismissal and contraventions of Part 3-1 not involving dismissal.

53    Subdivision A of Division 8, which is entitled “Contraventions including dismissal”, incorporates ss 365-371.

54    Section 365 provides that if two circumstances exist, viz:

1.    the person has been dismissed; and

2.    the person (or an industrial association entitled to represent the person’s individual interests) alleges that the person was dismissed in contravention of the Part;

then the person (or the industrial association) may apply to FWA for FWA to deal with “the dispute”.

55    The dispute referred to in s 365 is not defined elsewhere in the legislation. It is simply assumed to co-exist with a person’s dismissal allegedly in contravention of Part 3-1. “The dispute” in s 365 may thus be characterised as a dispute concerning a person’s dismissal allegedly in contravention of Part 3-1.

56    Section 365 provides that the dismissed person (or the industrial association) may apply to FWA for it to deal with the dispute. Section 366 specifies that the FWA application must be made within 60 days after the dismissal took effect, or such other period as FWA allows.

57    Section 368 requires FWA to conduct a conference to deal with the dispute. Note 2 to s 368 states that FWA may deal with the dispute by mediation, conciliation or making a recommendation.

58    Section 369 provides that FWA, if satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful, must issue a certificate to that effect. Section 370(1) requires FWA to advise the parties if it considers that a general protections court application in relation to the dispute would not have a reasonable prospect of success.

59    Section 370(2) of the Act defines a “general protections court application” as an application under Division 2 of Part 4-1 for orders in relation to a contravention of Part 3-1.

60    Section 371(1) of the Act provides that a person who is entitled to make an application under s 365 for FWA to deal with a dispute must not make a general protections court application in relation to the dispute unless (subject to s 371(1)(b)), FWA has issued a certificate under s 369 in relation to the dispute.

61    The certificate is thus (subject to s 371(1)(b)) a precondition of the making of a general protections court application in relation to the dispute. The Court has no jurisdiction to entertain such an application absent the certificate.

62    The respondent maintained that “the dispute” bore the same meaning throughout all provisions of Subdivision A and thus “the dispute” in relation to which the court application referred to in s 371(1) is made must, in all essential and substantial aspects, be limited and conform to “the dispute” as expressed or described in the FWA application.

63    The introductory reference to “the dispute” is contained in s 365, the first section of Subdivision A. Section 365 identifies the dispute at a high level of generality by reference to the occurrence of a person’s dismissal alleged to be in contravention of Part 3-1, and permits an application to FWA to deal with “the dispute” thus identified. Section 365 does not expressly, or, in my opinion, implicitly provide that “the dispute” precisely coincides with the content of the FWA application. Rather, it permits the application to be made to FWA to deal with the dispute.

64    While there are a number of different potential bases of contravention of Part 3-1, the Act does not prescribe the content, essential inclusions or level of detail of the application which may be made to FWA under s 365. The Form F8 headed “Application for FWA to Deal with a General Protections Dispute – Fair Work Act 2009 – ss 365, 372” completed by the applicant in this case is a short document setting out basic questions, including “Alleged contravention(s) of Part 3-1”, “Section(s) allegedly contravened” and “Description of alleged contravention(s)”. In the present case, the applicant’s description was contained in an annexure. In practice, the dispute identified in general terms under s 365 is likely to be further elaborated or described not only in the FWA application but also in the respondent’s response (if any) and/or the FWA conference conducted to deal with the dispute.

65    The respondent’s construction, however, requires the references to “the dispute” in s 371(1) to be read as “the dispute described or identified in the FWA application” or “the dispute as limited to the applicant’s substantial claims in the FWA application”.

66    Various difficulties and potential inconsistencies attend that construction.

67    First, s 371(1) does not expressly so state, and the language of the relevant provisions, construed in context, do not support the construction. The introduction of words which narrow the meaning of “the dispute” would effectively expand the restriction imposed by s 371(1) on an applicant’s right to access the court. The court should be slow to uphold an implication or oblique construction which magnifies the scope of a prohibition on curial access.

68    Section 366 provides for the making of an application under s 365 and s 368 provides that FWA shall conduct a conference to deal with the dispute.

69    While in practice the dispute identified in s 365 may be elaborated by the applicant in the FWA application and by both parties in the context of the FWA process, including the FWA conference, the legislation does not, in terms, require such elaboration. Neither ss 366 nor 368 defines, identifies or describes “the dispute” differently from s 365, which does not expressly state or indicate that “the dispute” is limited to the applicant’s substantive claims in the FWA application.

70    If, however, “the dispute” in s 371(1) is limited to the applicant’s substantial claims in the FWA application, in my opinion, a general protections court application made “in relation to” that dispute could validly include new, additional or different claims from those in the FWA application, provided that the essential basis of the dispute in the FWA application remained.

71    It is well established that the phrase “in relation to” is of wide import. In Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ stated at [87]:

The words “relate to” are extremely wide. They require the existence of a connection or association between the content of the Standard and the Australian content of programs. What constitutes a sufficient connection or association to form the required relationship is a matter for judgment depending on the facts of the case. No doubt the association or connection must be a relevant one in the sense that it cannot be accidental or so remote that the Standard has no real effect or bearing on the Australian content of programs.

(citations omitted)

72    In O’Grady v Northern Queensland Company Ltd (1990) 169 CLR 356, the High Court acknowledged the width of the phrase “in relation to” while recognising that it may be circumscribed by context. Brennan and McHugh JJ, who were in the minority, concluded that the appeal should be allowed. Brennan J stated at [365]:

The phrase “in relation to” is wide in its connotation and cannot be limited by a priori formulae designed to exhaust its meaning.

73    McHugh J stated at [376]:

The prepositional phrase “in relation to” is indefinite. But, subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters.

74    Dawson, Toohey and Gaudron JJ allowed the appeal.

75    Dawson J stated at [367]:

The words “in relation to”, read out of context, are wide enough to cover every conceivable connexion. But those words should not be read out of context…

76    Toohey and Gaudron JJ stated at [374]:

Although “in relation to” is an expression of broad import, in context with “arising” it presupposes a direct connexion between a presently existing action, suit or proceeding and mining or a mining tenement, not merely an incidental connexion.

77    In my opinion, the context of Subdivision A does not support the limitation of the dispute in s 371(1) to that contained in the FWA application. Moreover, the phrase “in relation to” indicates, in context, that there is no requirement for a strict nexus between the dispute as contained in the FWA application and the claims in the court application.

78    So to hold would endorse a one-sided and temporally limited characterisation of “the dispute” comprising only the claims and contentions of the applicant set out in the FWA application. It not only excludes developments after the issue of the certificate, but takes no account of the respondent’s possible claims or the possible enlargement or alteration of either party’s claims in the FWA conference and conciliation process. If the dispute were restricted to its content prior to the issue of the certificate, there is no obvious reason to limit it to the applicant’s claims made at the outset in the FWA application.

79    Further, as a respondent does not make the FWA application or court application and is not, in terms, subject to the prohibition in s 371(1) of the Act, while on the respondent’s construction, the court would lack jurisdiction to permit an applicant to expand or amend his or her claims, it is unclear that a similar restriction would apply to a respondent.

80    In addition to raising such potential inconsistencies, in my view, the respondent’s construction is not, on balance, supported by the apparent aims of Subdivision A.

81    The regime established in Subdivision A of Division 8 aims, where possible, to avoid litigation about allegedly contravening dismissals by mandating (as a prerequisite to litigation) a preliminary, less costly and relatively informal process in FWA to facilitate conciliation and non-curial resolution.

82    If the parties’ respective cases are comprehensively and accurately presented at the preliminary stage, the FWA process may be more effective and the prospect of resolution may be maximised.

83    If the respondent is not notified by the FWA application or in the FWA conference of substantive claims by the applicant, as Coker FM observed in Cepu, the respondent would have no opportunity to take account of such matters prior to the conference or commencement of the court proceeding.

84    The respondent’s construction does not appear to ensure that an applicant would be fully informed of a respondent’s claims. Assuming, however, that the FWA conference and conciliation process would be more effective if a respondent is fully informed of an applicant’s claims, that advantage could be achieved only by requiring an exhaustive and accurate presentation of the applicant’s case at a preliminary, informal stage primarily focussed on conciliation.

85    The respondent’s construction would avert a significant disconformity between the elements and details of the applicant’s case in the FWA application and a subsequent court proceeding. On one view, such disconformity might circumvent the legislative aim that there be an opportunity to resolve the dispute without resort to litigation. The degree of any divergence is, however, limited by the fundamental requirement that the dispute must concern the same specified dismissal alleged to in contravention of Part 3-1. Nor is mediation after the issue of the court application precluded.

86    More importantly, a requirement that the applicant’s principal claims in a court application first be comprehensively adumbrated in the FWA application appears inconsistent with the effective operation of the FWA application and contemplated process.

87    The FWA application must (subject to any extension) be made within a relatively short period from the date on which the dismissal takes effect. No formal statement akin to a pleading is prescribed and the legislation neither assumes nor requires the involvement of legal representatives.

88    If misstatement or omission from the FWA application excluded a claim from a subsequent court application, there would be pressure precisely to articulate claims and unselectively to include all potentially relevant matters at a preliminary stage. The applicant would in effect be required exhaustively and accurately to frame his or her case in essentially final form at the FWA application stage, in order to avoid the prohibition on litigation.

89    The omission of a significant claim from the FWA application would not, on the respondent’s construction, absolutely bar its inclusion in a subsequent court application, as the applicant might secure an additional certificate and any necessary extension of time from FWA. Such a course would, however, be uncertain and cumbersome. The FWA application and process could constitute a draconian hurdle, rather than affording the opportunity for conciliation in a relatively informal forum.

90    Therefore, while on the respondent’s construction the FWA conference would be more comprehensively based, and a respondent, at least, fully informed of an applicant’s ultimate case, the informal, essentially preliminary character of the FWA application and process would be significantly compromised.

91    In my opinion, on the better view, “the dispute” in s 371(1) in relation to which the making of a general protections court application is prohibited (subject to the specified conditions) is not limited to the applicant’s substantive claims made in the FWA application.

92    If, contrary to that view, the relevant dispute is thus limited, a general protections court application “in relation to” that dispute could legitimately include new claims, additional to and different from those in the FWA application, within the jurisdiction conferred by the issue of a certificate under s 369 in relation to the dispute.

93    In the present case, the statement of claim is, in my view, a general protections court application which is “in relation to” the dispute set out in the applicant’s FWA application. While one of the three additional complaints in the statement of claim is apparently a repetition of the substance of a complaint referred to in the FWA application, it was made to a different person on a later date. The other two additional complaints are not identifiable in the FWA application.

94    Nevertheless, all three additional complaints clearly arise from the same factual matrix and, as part of the narrative, would (even if excluded as an independent basis for relief) be relevant and admissible in relation to claims based on the two complaints in the FWA application. In my opinion, however, because the general protections court application including claims based on the three additional complaints is “in relation to” the dispute contained in the applicant’s FWA application, the court has jurisdiction even if (contrary to the views expressed above) the narrow meaning of dispute advocated by the respondent applies.

95    It follows that, in my opinion, the court has jurisdiction in relation to the applicant’s claims based on the three complaints which were not alleged in her FWA application.

Access to investigation report

96    The deed of settlement dated 10 October 2011 imposes restrictions on the use and storage of the Investigation Report, which is, and must be, in accordance with the terms of the deed of settlement, held by the Director of Human Resources of the respondent’s parent company in Hong Kong. The respondent submitted, and it was not disputed, that the deed of settlement did not preclude access by its legal representatives to the Investigation Report in Hong Kong.

97    The respondent, in essence, sought release from the obligations under the deed of settlement in order to facilitate access to a copy of the Investigation Report in Australia by its solicitors and counsel for the purpose of preparing its defence.

98    The respondent submitted, in that context, that the Investigation Report was likely to include information relevant to whether the First Complaint (which was allegedly made at an event which took place after a work function in Hong Kong) and Second Complaint are complaints in relation to the applicant’s employment which she was “able to make” within the meaning attributed to the phrase in Jones v Queensland Tertiary Admissions Centre Limited (No 2) (2010) 186 FCR 22 (at [52]). The respondent foreshadowed a potential challenge to the status of those complaints on the basis that the events lacked the requisite connection with the applicant’s employment. The respondent further submitted that the Investigation Report may contain information relevant to the allegations in paragraph 9 of the statement of claim relating to the Third Complaint.

99    The applicant opposed the respondent’s legal representatives’ access to the Investigation Report. The applicant submitted that the parties had agreed in the deed of settlement on the confidentiality of the Investigation Report, which had no bearing on the issues in dispute in this proceeding.

100    The applicant submitted that as the ultimate issue in the proceeding was whether the applicant’s employment was terminated for a reason prohibited by the Act, it was irrelevant whether the complaints were justified or had substance, whether the applicant’s sexual harassment allegations were properly investigated and the findings recorded in the Investigation Report or whether the matter was diligently pursued.

101    In such circumstances, the Investigation Report could have no relevance sufficient to displace the parties’ solemn agreement to take it out of circulation. Alternatively, the applicant submitted that it would be premature to order access to the Investigation Report.

102    It was not contended that the Investigation Report was the subject of a claim to privilege. It is referred to in the applicant’s statement of claim and would be discoverable by the applicant, if it were in her control. The Investigation Report is not, however, in the applicant’s power or possession. While the Investigation Report may have potential relevance to issues in dispute, the deed of settlement poses no absolute bar or insuperable impediment to the respondent’s legal representatives’ access. The basis of the court’s power to relieve the respondent of obligations under the deed of settlement was not identified.

103    In such circumstances, there are, in my view, no sufficiently compelling grounds for the court to exercise a power, the basis of which is unclear, to facilitate access to the Investigation Report, which the respondent can independently achieve.

Conclusion

104    In my opinion, the application for relief made by the interlocutory application dated 8 May 2012 should be refused.

Associate:

Dated:    15 June 2012