FEDERAL COURT OF AUSTRALIA

ResMed Limited v Australian Manufacturing Workers’ Union [2015] FCA 379

THE COURT ORDERS THAT:

1.    Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth), the amended originating application for relief filed by the applicant on 15 September 2014 be dismissed in so far as it seeks the orders set out in paragraphs 2 and 3 of that application.

2.    The question of costs of and incidental to the interlocutory application filed 8 October 2014 and amended on 10 December 2014 is reserved.

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

REASONS FOR JUDGMENT

1.    INTRODUCTION

1    These proceedings arise out of an application for a majority support determination (the MSD application) under s 236 of the Fair Work Act 2009 (Cth) (FW Act) pursuant to which the first respondent, the Australian Manufacturing Workers’ Union (the AMWU), seeks to initiate bargaining with the applicant, ResMed Limited (ResMed) for a proposed enterprise agreement under Part 2-4 of the FW Act.

2    Upon an objection as to jurisdiction being raised by ResMed, the Fair Work Commission (FWC) at first instance and the Full Bench of the FWC (the Full Bench) on appeal found that the MSD application was valid: “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v ResMed Limited [2013] FWC 9725 (the FWC first instance decision) and ResMed Limited v Australian Manufacturing Workers’ Union (AMWU) [2014] FWCFB 2418 (the first Full Bench decision). The correctness of the FWC’s view as to its jurisdiction was upheld by this Court in separate proceedings on judicial review: see ResMed Limited v Australian Manufacturing Workers’ Union [2015] FCA 360 (the ResMed Jurisdictional Decision). It remains now for the FWC to determine whether the criteria for a majority support determination in s 237(2) of the FW Act are met, including whether a majority of ResMed’s employees who would be covered by the proposed agreement want to bargain with ResMed.

3    By these proceedings, ResMed, seek a declaration that the AMWU is not entitled to represent the industrial interests of certain ResMed employees who would be covered by the proposed enterprise agreement on the ground that they fall outside the scope of the AMWU’s eligibility rule. The AMWU has also instituted proceedings against ResMed seeking declaratory relief with respect to the same issue, namely, whether the AMWU’s eligibility rule permit the same ResMed employees to join the AMWU. There is no issue between the parties that declaratory relief is available.

4    In the alternative to its application for declaratory relief in these proceedings, ResMed seeks judicial review under s 39B of the Judiciary Act 1903 (Cth) of the decision by the Full Bench of the FWC (the Full Bench) given on 17 July 2014 that certain ResMed employees fall within the scope of the Union’s eligibility rule and allowing an appeal against the decision by Commissioner Bull to this extent: The Australian Manufacturing Workers’ Union (AMWU) v ResMed Limited [2014] FWCFB 3501 (the second Full Bench decision). Specifically, by paragraph 2 of the prayer for relief, ResMed seeks an order in the nature of certiorari to quash the second Full Bench decision. In the further alternative, by paragraph 3 of the prayer for relief, ResMed seeks an order in the nature of mandamus directing the Full Bench to determine in accordance with law whether the AMWU is entitled to represent the industrial interests of the ResMed employees in relation to the work that will be performed under the proposed agreement.

5    The case was argued on the basis that the relief sought by way of judicial review relates to the same group of ResMed employees as those in respect of whom declaratory relief is sought.

6    Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and/or r 26.01 of the Federal Court Rules 2011 (Cth) (FCR), the AMWU seeks summary dismissal of paragraphs 2 and 3 of the application, being that part of the application seeking judicial review, on two primary grounds:

(1)    there is no decision with legal effect upon which an order for certiorari could issue and no duty which the FWC could be required to discharge by way of an order for mandamus;

(2)    in the alternative, the Court should decline to issue the constitutional writs in the exercise of discretion on the ground that they would require the FWC to give, in effect, an advisory opinion.

7    With respect to the second ground, the respondent contends that there is no utility in the continued pursuit of the second and third orders in particular because the relief sought by the applicant is available under ss 21 and 22 of the FCA Act and ss 562 and 563 of the FW Act, and to pursue judicial review proceedings in tandem with the application for declaratory relief will cause unnecessary delay and costs in the conduct of the proceedings.

8    For the reasons set out below, I consider that paragraphs 2 and 3 of the application should be summarily dismissed under s 31A(2)(b) of the FCA Act. In my view, the AMWU rightly submits that the application to this extent has no reasonable prospects of success on both grounds. In these circumstances, I do not consider that there is any point to deferring a consideration of these issues until some later stage of the proceedings, as urged by ResMed.

9    The second respondent, the Fair Work Commission, has entered a submitting appearance for these proceedings, save as to costs.

2.    BACKGROUND

10    The relevant facts can be summarised shortly.

2.1    The application for a majority support determination

11    ResMed is a corporation established under the Corporations Act 2001 (Cth) and is engaged in manufacturing products for people with sleep disordered breathing and other respiratory disorders. It has a product development and manufacturing facility at Bella Vista, north-west of Sydney, New South Wales.

12    On 25 March 2013, the AMWU filed a MSD application under s 236 of the FW Act. The MSD application related to a single-enterprise agreement proposed by the AMWU which would cover some, but not all, of ResMed’s employees.

13    Section 236 provides in relation to a proposed single–enterprise agreement that:

(1)    A bargaining representative of an employee who will be covered by a proposed single–enterprise agreement may apply to the FWC for a determination (a majority support determination) that a majority of the employees who will be covered by the agreement want to bargain with the employer, or employers, that will be covered by the agreement.

(2)    The application must specify:

(a)    the employer, or employers, that will be covered by the agreement; and

(b)    the employees who will be covered by the agreement.

14    The bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement include (relevantly) the employee organisation for those employees who it may legitimately represent under its eligibility rules and who are covered by the proposed agreement in relation to the work that will be performed under the agreement (save for employees who have revoked its status as such or appointed another bargaining representative) (s 176(1)(b) and (3), FW Act). It is not in dispute that the AMWU is an employee organisation for the purposes of the Act.

15    Section 237(1) provides that the Commission must make a majority support determination in relation to a proposed single-enterprise agreement if an application for the determination has been made and the Commission is satisfied of the matters set out in subsection (2) in relation to the agreement including that a majority of the employees who will be covered by the agreement want to bargain. The purpose of ss 236 and 237 is to create a mechanism whereby an unwilling employer might be brought to the bargaining table without industrial action and subjected to a requirement to bargain in good faith: JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53; (2012) 201 FCR 297 at 306 [28] (Jessup J); the ResMed Jurisdictional decision at [54] (Perry J).

16    In paragraph 2.2 of the MSD application, the AMWU identified the following categories of employees as those who would be covered by the proposed agreement:

Employees of ResMed Limited who work at the Bella Vista site, who are covered by the Manufacturing and Associated Industries and Occupations Award 2010 and who are engaged as:

a)    Production Operators, Line Leaders or Line Coordinators in the Patient Interface work group; or

b)    Production Operators, Line Leaders or Line Coordinators in the Ventilation work group; or

c)    Production Operators, Line Leaders or Line Coordinators in the Machines work group; or

d)    Warehouse Operators, Line Leaders or Line Coordinators in the Warehouse work group; or

e)    an employee in the Manufacturing Equipment and Tooling Support (METS) work group who holds a trade certificate or equivalent, or who is undertaking an apprenticeship or traineeship, other than any team leader(s) and/or any employee who is engaged as a supervisor, manager or equivalent.

For the avoidance of doubt, any employee engaged as a team leader, supervisor, manager or equivalent will not be covered by the proposed enterprise agreement.

17    As Commissioner Bull stated at [5] of his decision on 19 December 2013, “[i]n simple terms the proposed agreement would cover non leadership roles in the production, warehouse and tooling support areas at ResMed’s Bella Vista site.”

18    In the MSD application, the AMWU stated that it sought to bargain for an enterprise agreement with ResMed in respect of the employees identified in paragraph 2.2 as a bargaining representative of employees within the meaning of s 176 of the FW Act.

19    The eligibility rule of the AMWU is contained in rule 1A(a) of the AMWU’s Rules:

RULES OF THE “AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION” KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS’ UNION (AMWU).

1 – NAME OBJECTS AND CONSTITUTION

The Union formed under these Rules (hereinafter called the “Union”) shall be named the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU). It shall be a registered Trade Union.

1A.    Without in any way limiting or being limited by sub-rules 1B, 1C, 1D, 1E, 1F, 1G, 1H and 11 the Union shall consist of an unlimited number of persons who are employed or usually employed in or in connection with the following trades or calling or branches thereof:

(a) Smiths, ship smiths, angle iron smiths, drop-hammer smiths, spring smiths, oliver smiths, spring fitters, swaging machine operators, operators on smithing machines similar to swaging machines, nut and bolt makers, windmill erectors, motor, motor cycle and cycle mechanics, tuners and testers in motor industry, enamellers, typewriter mechanics, well-borers, scale-makers, metal safe makers, locksmiths, forge hammermen, forgemen, strikers, drop-hammer stampers, forging machine workers, forge, iron and brass furnace-men, ship’s plumbers, fitters, turners, grinders, whetstone grinders and glazers, sea-going engineers, shift engineers, roll turners, patternmakers, model makers, millwrights, mechanical draughtsmen, technical assistants, planners, borers, slotters, machine drillers, milling machine workers, shapers, machinists, brass founders, brass finishers, brass smiths and operators of machines in connection with same, coppersmiths, armature winders, equipment examiners, and electrical engineers generally, radio workers, mechanical and scientific instrument makers and optical glassmakers, linotype mechanics, press mechanics, machine joiners employed in the construction of cotton, silk, flax, woollen or other machines, die sinkers, press tool makers and stampers, electroplaters, polishers, electroplate makers up, sheet metal spinners, assemblers, skilled acetylene and electrical welders, aero mechanics, duralium workers, including forgers, fitters and all other aircraft workers who are employed on the fuselage or engine work, and all workers engaged in the engineering, shipbuilding and kindred trades. (emphasis added)

2.2    The decision by the Commissioner on 19 December 2013

20    On 19 December 2013, the Commissioner determined that the MSD application was a valid application under s 236 of the FW Act and that the FWC had jurisdiction to deal with, and to make a determination in respect of, the application under s 237 of the FW Act (the jurisdictional issues): the FWC first instance decision. The Commissioner also rejected ResMed’s submission that none of the employees specified in the application were eligible to be members of the AMWU. Rather the Commissioner found that the employees in category (e) of paragraph 2.2 were eligible to be members of the AMWU but not employees in the other four categories. As a result, the Commissioner concluded that the AMWU was a bargaining representative for at least one employee to be covered by the proposed agreement (the bargaining representative issue).

2.3    The appeal to the Full Bench upholding the Commissioner’s decision on jurisdiction and allowing the appeal on the representation issue

21    ResMed appealed to the Full Bench on the jurisdictional issues by a notice of appeal filed on 6 January 2014. Importantly ResMed did not appeal the finding by the Commissioner that the AMWU’s rules had coverage of employees in category (e) or the consequential finding that the AMWU was a bargaining representative under the FW Act for at least one employee to be covered by the proposed agreement. Rather, ResMed contended that that did not suffice for a valid application. In its submission, it was necessary for all employees covered by the proposed agreement to be eligible for membership of the AMWU.

22    On 11 April 2014, the Full Bench granted ResMed permission to appeal but dismissed the appeal: the first Full Bench decision. I upheld that decision in the ResMed Jurisdictional Decision.

23    The AMWU also appealed the findings that employees in categories (a) to (d) were not eligible to be members. That appeal was heard and largely upheld by the Full Bench of the Commission in a separate and later decision, i.e., the second Full Bench decision. It is with this decision that the present proceedings are concerned.

24    In its reasons at [6], the Full Bench expressed doubt about whether the Commissioner had made a “decision” on the question of its representational capacity which was capable of being the subject of an appeal under s 604 of the FW Act. Specifically, the Full Bench explained in the circumstances, the basis on which it intended to proceed:

…we consider that it was at least arguable that the Commissioner’s conclusions concerning the AMWU’s representational capacity under appeal were no more than preliminary and perhaps obiter findings made on the way to his ultimate determination that he had jurisdiction to hear and determine the AMWU’s application. We referred the parties to the Full Bench decision in Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2013] FWCFB 276] in this respect. However ResMed submitted that the matter had been run at first instance on the basis that the parties had agreed that the Commissioner should make a determination on the question of the AMWU’s representational capacity of the employees identified in the AMWU’s application, and the Commissioner did so. ResMed further submitted that because the findings on representational capacity which the Commissioner made were necessary for the resolution of the jurisdictional issues which had been raised, they could not be characterised as merely obiter (in distinction to the Coles decision [at [35]]). We understood from ResMed’s submissions therefore that it agreed with the AMWU that the Commissioner had made a “decision” about the AMWU’s capacity to represent the relevant employees which was capable of being appealed under s.604. We will therefore proceed on that basis, noting that neither party contended that the Commissioner did not have jurisdiction to make a decision on the AMWU’s representational capacity.

25    As to the merits, the Full Bench partially upheld the “appeal”. It found that the AMWU was entitled to enrol members in categories (b) and (c) of the MSD application, together with some members of category (a), but not members within category (d). This was reflected in its conclusions as follows:

[83]     We conclude that the Commissioner erred in finding that the AMWU did not have the capacity under its rules to enrol as members and to represent the industrial interests of the following categories of ResMed employees at its Bella Vista site:

(1)    mask assemblers in the Patient Interface work group (category (a));

(2)    employees in the Ventilation work group (category (b)); and

(3)    employees in the Machines work group (category (c)).

[84]    We find that the AMWU does have coverage of these categories of employees under rule 1A(a) of its rules. In respect of employees in the Accessories and Spares work group, we will refer the matter for reconsideration to a single member of the Commission as stated in paragraph [80] above.

26    On the basis of these findings, the Full Bench ordered that:

(1)    Permission to appeal is granted.

(2)    The appeal is upheld to the extent indicated in our decision.

(3)    The issue of whether the AMWU has coverage of employees in the Accessories and Spares work group shall be referred to Senior Deputy President Drake for reconsideration under s.607(3)(c) of the Act on the basis that her Honour may admit further evidence if necessary.

27    Order (3) above reflects the finding by the Full Bench that it did not consider that there was sufficient evidence on the basis of which it was able to make a finding.

2.4    The applications for declaratory relief and judicial review of the second Full Bench decision

28    By the amended originating application filed on 15 September 2014 (the amended application), ResMed seeks relief as to the AMWU’s entitlement to represent ResMed employees employed in certain work groups:

1.    A declaration be given that the First Respondent… is not entitled to represent the industrial interests of the production operators, line leaders and line coordinators employed by the Applicant, ResMed Limited (ResMed), to perform work in the Liquid Silicone Rubber, Mask Assembly, Spares and Accessories, Machines, Ventilator and Warehouse work groups at the Bella Vista site of ResMed (ResMed Employees);

2.    An order in the nature of certiorari issue removing into this Court proceedings in C2014/35 before the Second Respondent, the Fair Work Commission (The Australian Manufacturing Workers’ Union (AMWU) v ResMed Ltd [2014] FWCFB 3501) for the purpose of quashing the decision and the orders made by the Second Respondent on 17 July 2014 (the Appeal Decision);

3.    In the alternative to paragraph 1, an order in the nature of mandamus issue directing the Second Respondent to determine in accordance with the law whether the First Respondent is entitled to represent the industrial interests of the ResMed Employees in relation to the work that will be performed under the proposed agreement;

29    In proceedings NSD 915/2014, the AMWU also seeks a declaration that the applicant is entitled to represent the industrial interests of precisely the same employees as those identified in paragraph 1 of ResMed’s prayer for relief. However, it does not seek judicial review.

30    Importantly for reasons that will become apparent, it remains the case that ResMed does not challenge the Commissioner’s finding as to category (e) of paragraph 2.2 in the MSD application. This finding provided the basis on which the Court found that the FWC correctly considered that it had jurisdiction to entertain the MSD application in the ResMed Jurisdictional Decision. That being so, the outcome of these proceedings can have no bearing on the question of whether the FWC has jurisdiction to entertain that application.

3.    CONSIDERATION

3.1    Relevant principles governing a summary judgment application

31    Section 31A of the FCA Act relevantly provides that:

(2)  The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)  the first party is defending the proceeding or that part of the proceeding; and

 (b)  the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)  For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)  hopeless; or

(b)  bound to fail;

for it to have no reasonable prospect of success.

32    The intention behind the enactment of s 31A is “to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91-92, and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129–130…”: White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298 (White Industries) at 310 [54] (Lindgren J). In the cases to which Lindgren J referred, the requirement had been expressed in terms of “manifestly groundless” or “obviously untenable”. As Hayne, Crennan, Kiefel and Bell JJ held in Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at 139 [52]-[53]:

…effect must be given to the negative admonition in sub-s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is “hopeless” or “bound to fail”. … it is important to begin by recognising that the combined effect of sub-ss (2) and (3) is that the inquiry required in this case is whether there is a “reasonable” prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.

In this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered.

33    Nonetheless, the discretion must be exercised with caution (Spencer at [24] (French CJ and Gummow J) and [60] (Hayne, Crennan, Kiefel and Bell JJ)) and is concerned “with the bringing and defending of proceedings, not just with pleadings; with substance, not just with form”: White Industries at [50] (approved in Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 (Kowalski) at [30] (the Court); see also Spencer at [23] (French CJ and Gummow J)).

34    It does not assist to seek to explain the precondition to the exercise of the power in s 31A by paraphrasing its terms or drawing analogies with other statutory provisions (Spencer at [22] and [58]-[59]). Rather, “full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is ‘no reasonable prospect’ of success” (Spencer at [60]). The application of that pre-condition requires the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski at [28] (the Court). As ResMed contends, that discretion includes whether to deal with the motion at once or at some later stage in the proceedings when the legal and factual issues have been more clearly defined: Butorac v WIN Corporation Pty Ltd [2009] FCA 1503 at [19] (Buchanan J).

3.2    Is there a reasonable prospect that ResMed will successfully prosecute the claim for judicial review of the second decision of the Full Bench of the FWC?

3.2.1    The parties’ contentions

35    As mentioned, the AMWU submitted that the application should be summarily dismissed on two primary grounds.

(1)    First, the AMWU contends that the constitutional writs will “only issue where a Tribunal has taken a step which involves, or impacts directly upon, some determination of the legal rights or obligations of the parties. In the present case there is no decision with legal effect upon which an order for certiorari could operate and no duty which the FWC could be required, by way of an order for mandamus, to undertake.”

(2)    Secondly and in the alternative, the AMWU contends that “in circumstances where the Court is asked by both parties to determine the question of whether identified employees fall within the AMWU’s eligibility rule, there is no reasonable prospect of the Court, as a matter of discretion, granting prerogative relief which requires the FWC to determine, on an advisory basis, the same issue (on the same material that was originally before the FWC).”

36    On the other hand, ResMed submits that certiorari will lie against the second Full Bench decision because it has “apparent legal effect” on the grounds (in summary) that:

(i)    the First Respondent pressed an appeal from the First Instance Decision, on the basis that the First Instance Decision had apparent legal effect which the First Respondent wished to overturn. The Second Respondent decided the question of the ability of the First Respondent to represent “the industrial interests” of the relevant employees of the Applicant, upon this application of the First Respondent, which application was pressed by it. The First Respondent cannot now resile from this position;

(ii)    upon the application for appeal of the First Respondent, the Second Respondent determined whether the First Respondent was “entitled to represent the industrial interests” of employees of the Applicant, which was necessary to determine the status of the First Respondent as a “bargaining representative” under section 176(3) of the Fair Work Act 2009 (Cth) (FW Act), and whether it could validly make an application under section 236 for a majority support determination. This determination will be followed by other members of the Second Respondent in relation to other applications under the FW Act which rely upon section 176 or the words “entitled to represent the industrial interests of employees” (or variations of that phrase), giving the decision an apparent legal effect;

(paragraph cross-references omitted)

37    Resmed further submits that:

(d)    prerogative relief, in the nature of certiorari and mandamus will lie against the AMWU Appeal Decision because it is affected by jurisdictional error due to:

(i)    the Second Respondent having failed to afford the Applicant procedural fairness in the proceedings before it;

(ii)    the Second Respondent having acted beyond its powers under section 604 of the FW Act;

(e)    alternatively, certiorari is available where there is an error of law on the face of the record;

(f)    there is no proper basis to deny the Applicant a hearing of its application for prerogative relief in prayers 2 and 3 of the Amended Originating Application on the basis of purported efficiencies or the avoidance of purported complexity);…

(paragraph cross-references omitted)

38    In my opinion there is no reasonable prospect that ResMed will successfully prosecute the claim for judicial review of the second Full Bench decision for the reasons for which the AMWU contends.

3.2.2    Availability of certiorari to quash or mandamus to require compliance with duty

39    Certiorari is available “to quash the legal effect or the legal consequences of the decision or order under review”: Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 (Ainsworth) at 580 (Mason CJ, Dawson, Toohey and Gaudron JJ). Thus in Ainsworth, their Honours held at 580 that certiorari was not available to “quash” the report of the Criminal Justice Commission which contained adverse recommendations about the appellants as participants in the poker machine industry because the report:

…has, of itself, no legal effect and carries no legal consequences, whether direct or indirect. It is different when a report or recommendation operates as a precondition or as a bar to a course of action, or as a step in a process capable of altering rights, interests or liabilities. A report or recommendation of that kind may be quashed, that is to say its legal effect may be nullified by certiorari. But the Commission’s report is not in that category.

40    Equally their Honours found that the appellants’ claim for mandamus was based upon the misconception that the Commission was under a duty to investigate and report with respect to the appellants in relation to the introduction of poker machines: at 579-580 (Mason CJ, Dawson, Toohey and Gaudron JJ). This was so notwithstanding that the Court found that the adverse recommendations were made in breach of the Commission’s duty to accord the appellants procedural fairness and may bear upon their prospects of obtaining gaming licences, as reputation was a factor to be taken into account when determining whether a licence should be granted.

41    Similarly, Brennan J held at 595 that:

Certiorari is not available. Certiorari might go to quash a report if its production or furnishing were to affect directly the prosecutor’s rights or were to subject them in some way to a new hazard but, as the Commission’s Report has no legal effect, there is nothing to be quashed. Quashing annihilates the legal effect of an act or decision that has been reached in breach of a condition of its validity but, if an act or decision has no legal effect, there is nothing to quash. Nor is mandamus an appropriate remedy. If the Commission had been under a duty to produce and furnish a report on the subject of gaming machines and if, by reason of the failure by the Commission to observe the rules of natural justice, the duty had not been performed, the appellants’ case for mandamus would not fall at the threshold, that is, for want of a duty to be enforced by mandamus.

42    However, while the Commission could not be compelled to pursue such an investigation or to make a report, the High Court found that declaratory relief was available to declare that, in reporting adversely on the appellants in its report, the Commission had failed to observe the requirements of procedural fairness: at 581-582 (Mason CJ, Dawson, Toohey and Gaudron JJ) and 596-597 (Brennan J).

43    In Hot Holdings Pty Limited v Creasy [1996] HCA 44; (1996) 185 CLR 149 (Hot Holdings), the majority (Brennan CJ, Gaudron and Gummow JJ) held that certiorari lay to quash a recommendation to the Minister by a mining warden under the Mining Act 1978 (WA) that a ballot be held on the ground that several applications for exploration licences and mining leases had satisfied the requirements for applications at the same time. In so holding the majority explained at 159 that:

Thus, for certiorari to issue, it must be possible to identify a decision which has a discernible or apparent legal effect upon rights. It is that legal effect which may be removed for quashing.

This formulation encompasses two broadly typical situations where the requirement of legal effect is in issue: (1) where the decision under challenge is the ultimate decision in the decision-making process and the question is whether that ultimate decision sufficiently “affects rights” in a legal sense; (2) where the ultimate question to be made undoubtedly affects legal rights but the question is whether a decision made at a preliminary or recommendatory stage of the decision-making process sufficiently “determines” or is connected with that decision.

44    As to the second of these situations, the majority further explained (at 162) that:

There is no issue taken with the proposition that the granting or refusal of a mining tenement by the Minister under the Act affects legal rights in the relevant sense. Rather the issue is whether a decision prior to that final exercise of discretion can be said sufficiently to affect legal rights. Thus, in the words of Stephen J, one must ask whether there is a decision which constitutes some condition precedent to the exercise of power which will affect legal rights. Alternatively, in the words of the majority in Ainsworth, the preliminary report or recommendation must operate in this situation “as a precondition or as a bar to a course of action” or “as a step in a process capable of altering rights, interests or liabilities”.

45    In line with these authorities, the High Court held in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 88 ALJR 52 (Wingfoot) at [25] that:

The function of an order in the nature of certiorari is to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power. Thus, an order in the nature of certiorari is available only in respect of an exercise or purported exercise of power which has, at the date of order, an “apparent legal effect”. An order in the nature of certiorari is not available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is moot or spent. An order in the nature of certiorari in those circumstances would be not simply inutile; it would be unavailable.

46    The reference in Hot Holdings and Wingfoot in the passages quoted above to “apparent legal effect” is manifestly not, in my view, a reference to the appearance of a legal effect, but rather refers to a legal effect that is apparent, i.e., discernible or continuing. Thus, in Wingfoot, the Court held that there was no apparent legal effect which could be quashed by a writ of certiorari because the legal effect of the medical opinion in question had been spent upon the making of the order dismissing the statutory compensation application (at [40]-[41]). Similarly, the Full Court held in Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [2007] FCAFC 32; (2007) 157 FCR 260 (CFMEU v AIRC) that mandamus was not available to enforce a legal duty which no longer existed by reason of legislative amendments: at [74]-[75]. The fact that the central issue as to eligibility to be members of the CFMEU was said to be “an ongoing source of controversy between the CFMEU and [the employer] in relation to matters other than the question of the finding of an industrial dispute” (at [76]) (which was the context in which mandamus was sought to issue) and that there were ongoing issues as to whether the eligibility rule of the CFMEU permits it to exercise statutory rights to enter into agreements with the employer, did not affect the issue. As the Court (Spender, French and Cowdroy JJ) held at [83]-[84]:

In the present case the proceedings in the Commission are at an end by virtue of the Workplace Regulations. They will not be revived if the Full Bench decision is quashed. Although prior to the amendments to the WRA 1996 the decision had legal consequences in relation to the proceedings of which it formed a part, it no longer has those or any other legal consequences.

In other proceedings or negotiations the decision of the Full Bench may have some persuasive effect but there is no res judicata nor any issue estoppel generated by what was an administrative and not a judicial decision. For these reasons certiorari to quash the decision of the Full Bench cannot issue. Alternatively, given the lack of any legal consequences flowing from the decision, it should not issue.

3.2.3    Did the “orders” made in the second Full Bench decision have any operative legal effect?

47    It is not suggested by any party that the FWC has power to make binding declarations of right. As Mason CJ, Brennan, Deane, Dawson and Toohey JJ held in Re Cram; ex parte the Newcastle Wallsend Coal Company Proprietary Limited [1987] HCA 29; (1987) 163 CLR 140 (Re Cram) at 148-149, “[t]he making of a binding declaration of right is an instance of the exercise of judicial power.” It is trite that Commonwealth judicial power can be vested only in a Chapter III court, being a court created pursuant to s 71 of the Constitution constituted in accordance with the requirements of s 72, or a court of a State: The Queen v Kirby; ex parte Boilermakers’ Society of Australia [1956] HCA 10; (1956) 94 CLR 254 at 270 (Dixon CJ, McTiernan, Fullagar and Kitto JJ); Forge v Australian Securities and Investments Commission [2006] HCA 44; (2006) 228 CLR 45 at 73 [56] (Gummow, Hayne and Crennan JJ). As such, the FWC could not, and did not purport by its “orders” to, conclusively determine the scope of the AMWU eligibility rules.

48    However, it is well established that an administrative body such as the FWC may legitimately form and act upon its own opinion about legal rights and obligations as a step in the exercise of its functions and powers: Construction, Forestry, Mining and Energy Union v Wagstaff Piling Pty Ltd [2012] FCAFC 87; (2012) 203 FCR 371 (Wagstaff) at 377 [21] (Buchanan and Katzmann JJ). To hold otherwise would be to render unworkable the process of administrative decision-making. As Mason CJ, Brennan, Deane, Dawson and Toohey JJ held in Re Cram at 149 in words equally apt to the functions of the FWC:

…there is no substance in the suggestion that an industrial tribunal cannot interpret laws, awards and other legal instruments. A tribunal could not discharge its arbitral functions if it were unable to form an opinion on a matter of interpretation. The formation of views and opinions on matters of interpretation in arbitral proceedings does not in itself amount to a usurpation of judicial power… Indeed, a tribunal may find it necessary to form an opinion as to the existing legal rights of the parties as a step in arriving at the ultimate conclusions on which the tribunal bases the making of an award intended to regulate the future rights of the parties… (emphasis added)

49    However, in line with the principles to which I have referred, their Honours then emphasised that, “[o]f course, the formation of such an opinion does not bind the parties and cannot operate as a binding declaration of rights.”

50    In the present case, the question of whether the AMWU was “[a] bargaining representative of an employee who will be covered by a proposed single–enterprise agreement” (s 236, FW Act) arose in the context of the FWC discharging its duty to consider a valid MSD application, and to make the majority support determination under s 237(1) of the FW Act if satisfied that the statutory criteria are met. Absent a valid application, the jurisdiction of the FWC to entertain the application was not engaged; nor could the statutory precondition to the making of a determination in s 237(1)(a) be met, namely, that a MSD application has been made.

51    Equally, the FWC was required, as an aspect of discharging its duty under s 237(1), to form an opinion as to whether it had jurisdiction to entertain the application. In this regard, Brennan J (in his capacity as President of the Administrative Appeals Tribunal) explained in Re Adams and the Tax Agents’ Board (1976) 12 ALR 239 at 242, that, while an administrative body cannot judicially pronounce upon the limits of its authority:

… its duty not to exceed the authority conferred by law upon it implies a competence to consider the legal limits of that authority, in order to that it may appropriately mould its conduct. In discharging its duty, the administrative body will, as part of its function, form an opinion as to the limits of its own authority. The function of forming such an opinion for the purpose of moulding its conduct is not denied to it merely because the opinion produces no legal effect. In R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, Dixon J, whilst denying the power of a Local Coal Reference Board to determine judicially the meaning of a statutory phrase upon which its jurisdiction depended, distinguished the Board’s function of forming an opinion upon the question. He said, at p 618: “I do not mean to say that the Board may not, for the purpose of determining its own action, ‘decide’ in the sense of forming an opinion upon the meaning and application of the words ‘coal mining industry’. It must make up its mind whether this or that particular function on the borders of the coal mining industry does or does not fall within the conception.”

52    In this case, in forming his opinion that the FWC had jurisdiction to entertain the application, Commissioner Bull in the FWC first instance decision found that employees in category (e) were eligible for membership of the AMWU. There being at least one member of the AMWU employed in that category at the time of his decision, Commissioner Bull found that the AMWU was a bargaining representative for at least one employee who will be covered by the proposed agreement. On the construction of s 236 of the FW Act which Commissioner Bull adopted, that finding sufficed to establish jurisdiction. The finding by the Commissioner as to the scope of the eligibility rule was therefore no more than “a step in arriving at the ultimate conclusions” on the jurisdictional question (Re Cram at 149 (quoted at [48] above). It was not in itself an operative legal act, such as a decision to make the majority support determination or the preliminary decision that jurisdiction was established.

53    Equally, the failure to “appeal” the finding that the employees in category (e) of paragraph 2.2 of the MSD application were eligible for AMWU membership simply meant that, once the Full Bench “upheld” the construction of s 236(1) adopted by Commissioner Bull, it necessarily followed that the FWC had jurisdiction over the MSD application. Again the finding as to the proper scope of the eligibility rule was simply a part of the Full Bench’s reasoning. Once the Full Bench gave its decision on the jurisdictional issue, logically the question of construction of the AMWU’s eligibility rule raised in the FWC could no longer affect that question and the only outstanding issue for determination by the FWC on the MSD application was to decide whether or not the criteria for the making of the determination in s 237(2) were met.

54    Nor were the “orders” in the second Full Bench decision made pursuant to any statutory power and they had no statutorily prescribed consequences. They did not, as the AMWU submit, produce any effect in point of law but were ultimately no more than an expression of opinion – expressed with formality, but nonetheless simply an opinion. They did not, therefore, fall within the broadly typical situations identified by the majority in Hot Holdings as attracting certiorari (quoted above at [43]): they did not affect the ultimate decision in the decision-making process, being the decision on whether or not to make a majority support determination under s 237 of the FW Act; they did not determine the preliminary decision on jurisdiction; nor were they connected with the preliminary or ultimate decision. Any possible connection between the second Full Bench decision on the construction of the eligibility rule on the one hand, and the determination of the preliminary decision on jurisdiction on the other hand, was broken by reason of the Full Bench determining the jurisdictional issue before it considered these further issues relating to the scope of the eligibility rule.

55    It follows that ResMed’s submission that the orders nonetheless had “apparent legal effect” and the Full Bench “decided” the question of the ability of the First Respondent to represent “the industrial interests” of ResMed’s employees, is, with respect, based on a misconstruction of the authorities. The point made by ResMed is ultimately that the parties and the FWC would be likely to treat the opinions expressed by the Full Bench as persuasive and conduct themselves on that basis, absent correction by a Court in the exercise of judicial power. That may be so. ResMed also relies upon evidence as to the manner in which the AMWU has represented the effect of the second Full Bench decision to its members. However, such matters are not sufficient to found a writ of certiorari or mandamus. This is apparent, for example, from the decision in CFMEU v AIRC where continued controversy between the CFMEU and the employer as to the union’s eligibility rules did not mean certiorari could issue where the legal effect of the decision in question was spent. As the AMWU submitted here:

A simple way to test the supposed legal effect of the Full Bench decision is to consider the consequences if the Court were to find jurisdictional error and grant orders in the nature of certiorari and mandamus as sought by ResMed. If mandamus were granted, the FWC would be required to further consider the AMWU eligibility rule and to express a further (non legally binding) opinion as to its scope. Such an opinion would have no statutory purpose. It would have no effect whatsoever on the exercise of any statutory function by the Commission, or on the rights or obligations of the parties. The Court would be directing the FWC to undertake an exercise which it had no jurisdiction to undertake.

56    ResMed’s submission also highlights the lack of utility in the judicial review proceedings. The submission that the parties and the FWC may find the second Full Bench decision persuasive and that it is relevant to the exercise of other rights by the parties ignores the fact that the very issue considered in that decision will be resolved in an authoritative manner in these proceedings.

57    Nor could the AMWU’s conduct of its appeal before the Full Bench clothe the opinions of the Full Bench with any legal effect that they lack under the FW Act or otherwise. It follows that I do not accept the submission by ResMed that the AMWU, having pressed its appeal against the findings in the first instance decision, cannot now resile from that position. The AMWU’s conduct ultimately has no bearing on the issue.

3.2.4    Can relief lie with respect to the orders of the Full Bench?

58    It follows in line with the authorities to which I have referred that there is no reasonable prospect that the applications for certiorari and mandamus would succeed. Nor do I consider that there is any reasonable prospect that mandamus would issue in the exercise of discretion. As the AMWU submitted:

The Court has been asked by both parties to determine the scope of the AMWU’s eligibility rule, in a manner which would be binding on both parties. Once it is accepted that the issue will be determined, it would be utterly pointless in any circumstances to remit the matter to the FWC.

3.2.5    Alleged breach of procedural fairness

59    Finally, irrespective of whether there has been a breach of procedural fairness, there is no reasonable prospect that mandamus or certiorari would issue. The decision which is said to have been made in breach of procedural fairness has no legal consequences or effect for the reasons already given: see by analogy Ainsworth (discussed at [39]-[42] above). Furthermore, while in appropriate cases, such as in Ainsworth, the Court may make a declaration of the breach of procedural fairness, no such relief is sought here. Nor, in any event, would it serve any apparent utility. In Ainsworth there was utility in making the declaration because the power to remedy the breach of procedural fairness lay exclusively with the Criminal Justice Commission in the exercise of administrative power and, upon the declaration being made, it may well have prompted the Commission to investigate and report. In this case, however, declaratory relief is sought on the issue of the proper construction of the eligibility rule with the consequence that any breach of procedural fairness by the FWC would be superseded or “cured” by the authoritative decision of the Court. The same may be said of the complaint that the Full Bench did not provide proper or adequate reasons in the second Full Bench decision.

4.    CONCLUSION

60    For these reasons, I consider that the claims for relief in paragraphs 2 and 3 of the amended originating application have no reasonable prospects of success and the application should be dismissed to this extent under s 31A of the FCA Act. I will reserve the question of costs in order to afford the parties the opportunity to be heard on the issue, should they so wish.

Associate:

Dated:    22 April 2015