FEDERAL COURT OF AUSTRALIA

Warrell v Fair Work Australia (No 2) [2013] FCA 402

THE COURT ORDERS THAT:

1.    The name of the First Respondent be amended to “Fair Work Australia”.

2.    An order in the nature of certiorari be granted quashing the orders and decision of the First Respondent made on 5 June 2012 in matter C2011/5891 (the “Decision”).

3.    A declaration be made that the Decision was not a valid exercise of the powers of the First Respondent and the Decision is a nullity.

4.    An order in the nature of mandamus be granted directing the Full Bench of the First Respondent to:

(i)    grant the Applicant leave to appeal in proceedings C2011/5891 being the Appeal to the Full Bench of Fair Work Australia in Edward Warrell v Bacto Laboratories Pty Ltd;

(ii)    uphold the appeal in proceedings C2011/5891 being the appeal to the Full Bench of Fair Work Australia in Edward Warrell v Bacto Laboratories Pty Ltd;

(iii)    remit the proceedings U2011/9217, being the application by Edward Warrell to Fair Work Australia for an unfair dismissal remedy against Bacto Laboratories Pty Ltd, for rehearing by a different member of Fair Work Australia (now the Fair Work Commission).

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

REASONS FOR JUDGMENT

1    On 4 April 2013 judgment was given in this proceeding and the parties were directed to bring in short minutes of orders to give effect to the reasons: Warrell v Walton [2013] FCA 291. The First Respondents identified in the Originating Application as filed were the individual members who constituted the Full Bench of Fair Work Australia whose decision was under challenge. One member as named, Vice President Watson, was also incorrectly identified as “Vice President Walton”. No question was raised during the course of the proceeding as to the manner in which the First Respondent had been identified.

2    Immediately after the reasons for decision were published, a joint application was made to remove the three individual members as the First Respondent and to substitute as that Respondent Fair Work Australia. That application should be acceded to.

3    Primarily, it is a matter for an Applicant to identify those whom it seeks to join as Respondents. In those situations where power is vested in a statutory authority and not its members, the appropriate Respondent is the authority itself. In the case of Fair Work Australia, Perram J in Deva v University of Western Sydney [2011] FCA 199 addressed this question as follows:

[23] … FWA’s joinder, rather than the particular members comprising the Full Bench, would have been appropriate for two reasons. First, the decision maker was FWA in the sense that the power was exercised by it and not the members comprising it on the particular occasion. Secondly, FWA as an entity “consists” of all its members (s 575(2) Fair Work Act) so that the decision maker is, as a matter of formality, all of the members of the FWA. The Fair Work Act provides for the power of FWA (that is, all of the members) often to be exercised by single members or full benches but this should not obscure the true identity of the repository of the power. Consequently, an application for prerogative relief in a case such as the present requires the joinder of the decision maker — here all of the members of the FWA for the time being. FWA is both a convenient and statutorily mandated shorthand for that group of officers of the Commonwealth. This, I believe, underpins the similar conclusion by McHugh J that the Refugee Review Tribunal is the proper respondent in constitutional writ proceedings: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at 310 [43].

This decision has since been applied in Construction, Forestry, Mining and Energy Union v Hamberger [2011] FCA 719 at [105]. In addition to his Honour’s reference to the decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294, reference may also be made to other comparable observations: Sneddon v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 170 at [2], 88 ALD 84 at 85 per Hill, Branson and Stone JJ; VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [84] per Hill, Sundberg and Stone JJ; SZAQL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 759 at [5] per Branson J; NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 at [24] per Jacobson J.

4    Although it may well have been expected that those appearing for the Respondents (or the Court itself) would have noticed the error, the error escaped unnoticed. It should, however, now be rectified. An order should be made substituting Fair Work Australia as the First Respondent. The power to join a party that ought to have been joined is conferred by r  9.05(1)(a) of the Federal Court Rules 2011; the power to make an order that a party cease to be a party is conferred by r 9.08 of those Rules. The prior error as to joinder does not “defeat” the proceeding: r 9.07. The correct identification of a Respondent assumes particular significance where an order in the nature of mandamus is made compelling the performance of some act or duty.

5    Further orders should also be made, as agreed between the parties, to give effect to those reasons published on 4 April 2013.

THE ORDERS OF THE COURT ARE:

1.    The name of the First Respondent be amended to “Fair Work Australia”.

2.    An order in the nature of certiorari be granted quashing the orders and decision of the First Respondent made on 5 June 2012 in matter C2011/5891 (the “Decision”).

3.    A declaration be made that the Decision was not a valid exercise of the powers of the First Respondent and the Decision is a nullity.

4.    An order in the nature of mandamus be granted directing the Full Bench of the First Respondent to:

(i)    grant the Applicant leave to appeal in proceedings C2011/5891 being the Appeal to the Full Bench of Fair Work Australia in Edward Warrell v Bacto Laboratories Pty Ltd;

(ii)    uphold the appeal in proceedings C2011/5891 being the appeal to the Full Bench of Fair Work Australia in Edward Warrell v Bacto Laboratories Pty Ltd;

(iii)    remit the proceedings U2011/9217, being the application by Edward Warrell to Fair Work Australia for an unfair dismissal remedy against Bacto Laboratories Pty Ltd, for rehearing by a different member of Fair Work Australia (now the Fair Work Commission).

Associate:

Dated:    3 May 2013