FEDERAL COURT OF AUSTRALIA

Grant v BHP Coal Pty Ltd [2015] FCA 329

THE COURT ORDERS THAT:

The applicant’s interlocutory application filed on 12 March 2015 be dismissed.

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

REASONS FOR JUDGMENT

1    The interlocutory application before the Court was filed on 12 March 2015 by the applicant in the substantive proceedings, Mr Darrin Grant. In that interlocutory application Mr Grant sought the following order:

That pursuant to rule 9.05(1)(b)(ii) and/or (iii) of the Federal Court Rules 2011 the Construction, Forestry, Mining and Energy Union be joined as an Applicant to this proceeding.

2    For convenience I will refer to the Construction, Forestry, Mining and Energy Union as “CFMEU” in this judgment.

3    The substantive proceedings concern an application by Mr Grant for relief pursuant to, inter alia, s 39 of the Judiciary Act 1903 (Cth), in particular for declarations in respect of conduct of the first respondent and the issue of prerogative writs addressed to the Fair Work Commission. So far as concerns the Fair Work Commission, Mr Grant seeks in summary orders quashing the decision of the Full Bench of the Fair Work Commission recorded at Grant v BHP Coal Pty Ltd [2014] FWCFB 3027 and directing the Commission to hear and determine the matter before it according to law. As is plain from the decisions of the Fair Work Commission (both at first instance and in the Full Bench) the dispute between the parties arises from a sequence of events culminating in the dismissal of Mr Grant on 17 May 2013 from his position as a boilermaker with the first respondent at its Peak Downs Mine. The Fair Work Commission found that Mr Grant had injured his shoulder on a number of occasions between 2011 and 2012, underwent shoulder surgery on 12 September 2012, and sought to return to work on 2 April 2013 with medical certificates issued by a medical practitioner and the surgeon who had conducted the relevant surgery. The first respondent was not satisfied by the content of the medical certificates and required Mr Grant to attend its nominated medical specialist for a functional assessment test before being assigned duties. The first respondent said that its direction to Mr Grant was pursuant to the Coal Mining Safety and Health Act 1999 (Qld) (“the CMSH Act”). Mr Grant refused to comply with that direction. The Fair Work Commission also found that Mr Grant had refused to participate in answering questions during an investigation interview conducted by the first respondent on 22 April 2013.

4    Mr Grant commenced action against the first respondent in the Fair Work Commission alleging unfair dismissal. His action was dismissed by Commissioner Spencer at first instance (Grant v BHP Coal Pty Ltd [2014] FWC 1712). Mr Grant unsuccessfully appealed the decision of Commissioner Spencer to the Full Bench.

Relevant legislation

5    As I noted earlier in this judgment, Mr Grant has sought leave to join the CFMEU as an applicant to the substantive proceedings pursuant to r 9.05(1)(b)(ii) and (iii) of the Federal Court Rules 2011 (Cth) (“Federal Court Rules 2011”). These rules provide:

Joinder of parties by Court order

(1)    A party may apply to the Court for an order that a person be joined as a party to the proceeding if the person:

…

(b)    is a person:

…

(ii)    whose joinder is necessary to ensure that each issue in dispute in the proceeding is able to be heard and finally determined; or

(iii)    who should be joined as a party in order to enable determination of a related dispute and, as a result, avoid multiplicity of proceedings.

Submissions of the parties

6    Mr Grant submits that the joinder of the CFMEU to the proceeding is supported by the following points:

    The Fair Work Commission at first instance recorded that, in the unfair dismissal proceedings, counsel instructed by a legal officer of the CFMEU represented Mr Grant, and the CFMEU represented Mr Grant prior to the termination of his employment by the first respondent.

    On appeal from the first instance decision of the Fair Work Commission, the Full Bench of the Fair Work Commission recorded that:

o    the CFMEU had represented Mr Grant;

o    the applicant had performed the role of an area delegate of the CFMEU of the filed crew (maintenance) at the Peak Downs Mine;

o    the application before it raised issues of general application for employees in coal mines in coalmining operations in Queensland.

    In his affidavit filed 12 March 2015 Mr Stephen Smyth, the District President of the Mining and Energy Division of the CFMEU, deposed (inter alia):

[26]    The CFMEU has been involved in substantial litigation relating to the right and obligations conferred and imposed by the CMSH Act. On some occasions, the CFMEU is the party principal to those proceeding and on other occasions it supports its members to bring such claims as they may be advised.

…

[31]    Since the Full Bench decision in Grant v BHP Coal Pty Ltd [2014] FWCFB 3027 I have seen a significant rise in the number of employers who seek to rely on s. 39 of the CMSH Act as a basis for directing employees to attend a medical examination when there is no express right conferred by the contract of employment, the relevant enterprise agreement or any PPI procedure promulgated in accordance with the CMSH Act. This is giving rise to considerable uncertainty between CFMEU members and employers in the coal industry. Since the Full Bench decision was handed down there have been at least five new disputes about medical examination involving employers other than the first respondent.

[32]    The CFMEU considers that it has an interest in Mr Grant’s claim for declaratory relief. This is because the CFMEU represents a significant number of members who are faced with disputes about the employer’s capacity to direct them to attend a medical examination.

[33]    I believe that it is in the interests of the CFMEU and its members that the medical examination issue is finally determined and that joining the CFMEU as a party will assist in enabling the determination of related disputes, avoiding multiplicity of proceedings.

…

[35]    Members of the CFMEU and delegates of the CFMEU, defined as Employee Representatives under the 2012 Agreement, are involved from time to time in disciplinary interviews at the mines of the First Respondent.

[36]    Disputes sometimes arise regarding what questions the First Respondent can insist that an employee answer.

[37]    I believe that it is in the interests of the CFMEU and its members that disciplinary interview issues are finally determined and that joining the CFMEU as a party will assist in enabling the determination of related disputes, avoiding multiplicity of proceedings. The issues are:

a.    Whether or not on the proper construction of clauses 3.7(d) and 4.5 of the 2012 Agreement, the First Respondent is entitled to direct an employee to attend a disciplinary interview and then is entitled to ask him or her questions or whether or not that employee is entitled to refuse to answer any question asked of him or her by the First Respondent at such an interview?

b.    Whether or not the proper construction of clause 4.5, by refusing to answer any of the First Respondent’s questions and requesting that the First Respondent put all questions in writing so that an employee could give a formal response, the employee would be acting in contravention of that clause?

    Mr Charles Massy, the solicitor for Mr Grant, also deposed in his affidavit of 19 March 2015 as to the steps taken by the CFMEU to put the first respondent on notice of Mr Grant’s joinder application and the attempt to have the first respondent consent to that application.

    The joinder of the CFMEU to the application would not add additional cost or time to the hearing because:

o    Mr Grant and the CFMEU would have common legal representation;

o    the CFMEU would not seek to adduce additional evidence; and

o    the CFMEU would not seek to advance any different grounds to those already advanced by Mr Grant.

7    The interlocutory application is opposed by the first respondent because, in summary:

    Mr Grant has not advanced any reason why the Court could or should conclude that the joinder of the CFMEU as an applicant is “necessary to ensure that each issue in dispute in the proceeding is able to be heard and finally determined” within the meaning of r 9.05(1)(b)(ii); and

    So far as concerns r 9.05(1)(b)(iii), Mr Grant does not identify any claim by the CFMEU against the first respondent capable of being characterised as a presently existing “related dispute”.

Consideration

8    In my view the submissions of the first respondent are correct. Mr Grant has not advanced reasons to support his claim for joinder of the CFMEU as an applicant pursuant to either r 9.05(1)(b)(ii) or r 9.05(1)(b)(iii).

9    Mr Grant submits that the joinder of the CFMEU is necessary not only to ensure that each of the issues relating to health assessment and disciplinary interviews are able to be heard and finally determined, but to avoid a multiplicity of proceedings. Other than the bald statement to this effect in Mr Smyth’s affidavit, no material has been advanced to support this claim.

10    The power of the Court under the Federal Court Rules 2011 to order a party to be joined to a proceeding is found in r 9.05. In McAlister v State of New South Wales [2014] FCA 702 at [14] Edmonds J explained that only a party to extant proceedings can make an application under r 9.05 to join a person who is a non-party to the proceedings. In this case Mr Grant is clearly a party to the proceedings. It is not in dispute that the interlocutory application is his or that the Court is empowered to make an order in the terms sought by Mr Grant.

11    Mr Grant has specifically chosen to rely on subr (1)(b)(ii) and (1)(b)(iii), presumably because he could not substantiate a case under other parts of r 9.05. However satisfaction of subr 9.05(1)(b)(ii) or (iii) is dependent on compliance with the requirements of those provisions.

12    Rule 9.05(1)(b)(ii) requires that joinder of the third party be necessary to ensure that each issue in dispute in the proceeding is able to be heard and finally determined. An example of the application of this rule was in Whitton (Trustee), in the matter of Perovich (Bankrupt) v Neolido Holdings Pty Ltd (Receivers and Managers Appointed) [2014] FCA 832. In that case, in a dispute in respect of an alleged voidable antecedent transaction in a bankruptcy, certain funds had been paid into the Supreme Court of Queensland pending resolution of the bankruptcy dispute in the Federal Court. The trustee in bankruptcy claimed entitlement to those funds, however a competing claim to those funds was made by a third party. Wigney J agreed that joinder of the third party was necessary in the extant Federal Court proceedings to ensure that each issue in dispute in relation to entitlement to the funds paid into the Supreme Court of Queensland was able to be heard and finally determined in the Federal Court.

13    No such necessity has been demonstrated in respect of Mr Grant’s application for the CFMEU to be joined as a co-applicant in the substantive proceedings. Mr Grant’s application before the Fair Work Commission, both at first instance and in the Full Bench, progressed without the formal joinder of the CFMEU. Indeed the substantive application by Mr Grant appears to be precisely the type of case referred to by Mr Smyth in his affidavit at [26] as one where the CFMEU “supports its members to bring such claims as they may be advised” rather than the union being the “party principal” in the case. Material before the Court supports a finding that the CFMEU has supported Mr Grant both in the Fair Work Commission and in his substantive application. But this does not mean that it is necessary for the CFMEU to be joined as a party to resolve each issue in dispute in this Court. Indeed, I note that Mr Smyth deposed, and Counsel for Mr Grant submitted, that the joinder of the CFMEU would raise no new issues. The basis upon which the CFMEU chooses to either commence proceedings or support its members to commence proceedings has not been explained, and at present is of no interest to this Court other than to note that the CFMEU appears in this case to have made the forensic choice to support Mr Grant rather than participate directly in the litigation. Joinder of the CFMEU is not necessary for resolution of issues in this case.

14    Rule 9.05(1)(b)(iii) permits joinder of a third party to enable determination of a related dispute and, as a result, avoid multiplicity of proceedings. This rule was considered by Robertson J in Sienkiewicz v Salisbury Group Pty Limited [2013] FCA 977 where the applicants had allegedly suffered financial loss as a result of financial advice given by the respondents. The respondents were either insolvent or had no assets. The applicants sought orders joining the respondents’ insurers. His Honour noted that while there was no existing controversy between the applicants and the insurers, that fact should be treated with circumspection because the potential exposure of the insurers seemed likely to be linked to the negligible or non-existent exposure of those respondents given their apparent financial positions (at [45]). In this respect his Honour relied upon the approach of the Full Court in Employers Reinsurance Corporation v Ashmere Cove Pty Ltd (2008) 166 FCR 398.

15    In this case however, there is no material before the Court evidencing the existence of a related dispute within the meaning of the Rule. While Sienkiewicz indicates that r 9.05(1)(b)(iii) does not necessarily require the existence of a formal dispute to justify joinder, in this case the only real evidence before the Court is that of Mr Smyth that the CFMEU has an interest in the subject matter of the dispute between Mr Grant and the first respondent. However, and unlike in cases like Sienkiewicz, this apparent interest does not support the existence of a related controversy which could be properly dealt with in this proceeding, nor is it possible to draw the inference that joining the CFMEU will avoid a multiplicity of proceedings. Further, I consider that Mr Smyth’s evidence that the legality of a direction to an employee to attend a medical examination by a doctor nominated by an employer is a “common area of dispute between CFMEU members and their employers in the coal industry” (at [27]) is vague and does not satisfy the requirements of r 9.05(1)(b)(iii).

16    The appropriate order is that the applicant’s interlocutory application be dismissed.

Associate:

Dated:    9 April 2015