FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Maritime, Mining and Energy Union V BM Alliance Coal Operations Pty Ltd (No 2) [2019] FCA 2146

ORDERS

THE COURT ORDERS THAT:

1.    The amended interlocutory application filed on 4 July 2019 be dismissed.

2.    The matter be listed for further case management at 9.30am on 4 February 2020.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is an amended interlocutory application filed 4 July 2019, in which the respondent to the substantive proceedings (BMA) sought an order dismissing the amended originating application filed by the applicant union (CFMMEU) on 7 February 2019.

2    In the amended originating application the CFMMEU sought the following orders:

1.    A declaration that the Respondent contravened s. 340 of Fair Work Act 2009 (Cth) (the Act) on and from 10 November 2017 by taking adverse action against Kim Star, an employee of WorkPac Pty Ltd, by refusing to make use of services offered by WorkPac Pty Ltd as an independent contractor to the Respondent within the meaning in Item 3(d) in the table in s. 342 of the Act, in that the Respondent excluded Kim Star from the Goonyella Riverside Mine (the Mine) because she had exercised a workplace right on or about 9 November 2017.

2.    Further or in the alternative, a declaration that by reason of s. 362 of the Act the Respondent contravened s. 340 of the Act on 10 November 2017 in that, because she had exercised a workplace right on or about 9 November 2017, the Respondent advised, encouraged or incited WorkPac Pty Ltd to exclude its employee, Kim Star, from the Mine thereby injuring her in her employment, altering her position to her prejudice and/or discriminating between her and other employees of WorkPac Pty Ltd at the Mine.

4.    An order pursuant to s. 545 of the Act that the Respondent pay Ms Star compensation for loss and damage she suffered as result of the Respondent’s unlawful conduct.

5.    An order pursuant to s. 546 of the Act that the Respondent pay pecuniary penalties in respect of its contraventions of the Act.

6.    An order pursuant to s. 546(3) of the Act that any such penalties be paid to the Applicant.

7.    Such further or other orders as the Court considers appropriate.

3    Interlocutory relief relevant to the current proceedings was granted in Construction, Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd [2018] FCA 1590 (injunction decision). At [3]-[8] of the injunction decision, background facts relevant to these proceedings were summarised. More recently, in written submissions BMA has set out background facts relevant to the current interlocutory application, which the CFMMEU agrees are accurate. These background facts can be summarised as follows:

    At material times, Workpac Pty Ltd (Workpac) provided labour services to BMA at the Goonyella Riverside Mine (mine), and Ms Kim Star was employed by Workpac.

    From on or around 23 October 2013 until 13 November 2017, Ms Star was deployed by Workpac to work exclusively at the mine.

    On 10 November 2017, BMA advised Workpac that Ms Star was “no longer required, effective today”.

    On 13 November 2017, Workpac terminated Ms Star’s employment and advised her of that termination. The stated reason for the termination was that BMA had advised Workpac “that they wish to demobilise your position”.

    On or around 1 December 2017, Ms Star commenced a proceeding in the Fair Work Commission pursuant to s 394(1) of the Fair Work Act 2009 (Cth) (FW Act) seeking a remedy for unfair dismissal.

    On 28 August 2018, the Fair Work Commission found that Ms Star was dismissed from her employment, was advised of this on 13 November 2017, and that the dismissal was unfair.

    On 17 September 2018, the Fair Work Commission ordered that Ms Star be reinstated to her employment with Workpac as a Level 3 Mine Worker at the mine.

    On 20 September 2018, Workpac sought approval from BMA for Ms Star to return to her position at the mine. On 24 September 2018, BMA refused to permit Ms Star to be deployed by Workpac at the mine.

    On 8 October 2018, the CFMMEU commenced these proceedings, seeking orders in relation to an alleged contravention of Part 3-1 of the FW Act.

    On 22 October 2018 in the injunction decision I made an interlocutory order restraining BMA from 'excluding or otherwise preventing Kim Star from attending the Goonyella Riverside Mine to perform work there on behalf of WorkPac'. That injunction was later discharged on 13 December 2018.    

4    In its amended interlocutory application BMA sought the following orders:

1.    Pursuant to section 31A(2) of the Federal Court of Australia Act 1976 (Cth) and/or rule 26.01(1)(a) of the Federal Court Rules 2011 (Cth), the Applicant’s amended originating application dated 7 February 2019 is dismissed.

2.    There be no order as to costs.

3.    Such further and other orders as the Court considers appropriate.

5    BMA’s application relies on s 725 of the FW Act which provides:

General Rule

A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.

6    Relevantly s 728 of the FW Act provides:

General protections court applications

This section applies if:

(a)     a general protections court application has been made by, or on behalf of, the person in relation to the dismissal; and

(b)     the application has not:

(i)    been withdrawn by the person who made the application; or

(ii)     failed for want of jurisdiction.

7    Also relevant for the purposes of this interlocutory application is s 729 of the FW Act which provides:

Unfair dismissal applications

(1)     This section applies if:

(a)     an unfair dismissal application has been made by the person in relation to the dismissal; and

(b)     the application has not:

(i)     been withdrawn by the person who made the application; or

(ii)     failed for want of jurisdiction; or

(iii)     failed because the FWC was satisfied that the dismissal was a case of genuine redundancy.

(2)     An unfair dismissal application is an application under subsection 394(1) for a remedy for unfair dismissal.

8    It is not in dispute that the application made by Ms Star to the Fair Work Commission, on or around 1 December 2017, was an application of the type described in s 728.

9    The critical question before the Court is whether the CFMMEU was barred by s 725 from bringing the amended originating application which it filed on 7 February 2019. Consideration of this question depends on resolution of two issues, namely:

(1)    Whether the amended originating application was an “application or complaint” brought by “a person who has been dismissed” within the meaning of s 725, and if so

(2)    Whether the application was “in relation to” the dismissal of Ms Star.

10    BMA does not claim that the amended originating application was an abuse of process, nor does it contend that the amended originating application should be dismissed for any reason other than the operation of s 725.

11    It is appropriate to consider each issue in turn.

issue 1: Whether the amended originating application was an “application or complaint” brought by “a person who has been dismissed” within the meaning of s 725

Submissions of the parties

12    BMA submitted, in substance, that s 725 applies to bar the CFMMEU’s amended originating application, notwithstanding that the applicant in the Fair Work Commission was Ms Star. BMA submitted further that a strict correlation between the named applicants in the relevant applications was not required for s 725 to apply.

13    More particularly, BMA submitted:

    Section 725 has a broader operation than its strict language would suggest, and should be read as preventing the making of a second application which is made “by or on behalf of” the dismissed person.

    The Court in undertaking construction of a statutory provision can read a provision “as if it contained additional words…with the effect of expanding its field of operation” (see for example Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9: (2014) 253 CLR 531 at [37]).

    The purpose of Div 3 Pt 6 of the FW Act, at least in part, involves the prohibition of multiple proceedings being brought and remedies obtained in relation to a dismissal. That purpose is not met if s 725 does not extend to applications brought not only by the dismissed person, but also to applications brought on their behalf.

    Section 725 of the FW Act would not achieve its purpose if it required a strict correlation between the named applicants as this would lead to absurd and perverse outcomes.

    Each of ss 726-732 allow the relevant applications to be made by or on behalf of the dismissed person. A strict and literal reading of s 725 would eliminate the scope of this section where any subsequent application was made on behalf of the dismissed person. This could result in many applications being pursued in relation to a dismissal.

    Section 540(6) acts as a limitation on the standing conferred by s 539. In this case the CFMMEU brought the action pursuant to s 540(6)(b) and not s 540(6)(a). The CFMMEU’s standing was not freestanding but rather hinged on there being a natural, actual person who was affected by the contravention, in this case, Ms Star. In that sense the application was brought on behalf of Ms Star.

    If Ms Star had brought the present proceedings, and the substance of the application, the evidence, the legal arguments and the remedies sought were identical, s 725 would prohibit this application. The only difference in the present case is that the CFMMEU is the named applicant.

    The Court should be guided by the statutory purpose of s 725 of the FW Act.

    There is no separate and distinct interest that the CFMMEU represents. Where s 725 precludes Ms Star from bringing the action, the CFMMEU should also be precluded. There is no difference between the relief to which an individual may be entitled and that to which an industrial association may be entitled. There is no statutory manifestation of a different interest or motivation.

    The purposive construction for which BMA contends is a construction that allows the statutory purpose of s 725 to be achieved in a harmonious way.

    The CFMMEU is an association for furthering and protecting the interest of its members. This is not an interest that explains the discriminatory operation of s 725. The CFMMEU has no greater or different right to an individual applicant.

    Contrary to the submissions of the CFMMEU, s 725 ought not to be construed as an exception to beneficial legislation.

    Further contrary to the submissions of the CFMMEU, the decision in Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28 is not relevant. That case concerned an inspector, and unlike an industrial association an inspector does not sue on behalf of an individual. The construction of s 725 contended by BMA does not inhibit an inspector from bringing an action.

14    The CFMMEU submitted that:

    The language of s 725 is confined solely to the person dismissed. In contrast, ss 726-728 and ss 730-732 all refer to applications made “by, or on behalf of” a person. This reveals a conscious decision by the legislature to restrict the application of s 725 to “the person” who has been dismissed.

    The language contained in s 725 is intractable.

    There is no basis to read the words “by or on behalf of” into s 725. The underlying legislative intention of the words used in the statute, in context, do not support such an interpretation.

    The FW Act contains civil remedy provisions. The underpinning rationale of the FW Act is that when a contravention a civil remedy provision occurs, a pecuniary penalty is imposed to deter that conduct. The FW Act allows the enforcement of civil remedy provisions by the person affected, the regulator or a limited category of common informants, including registered industrial organisations. Unlike ss 726-728 and ss 730-732, s 725 refers only to “a person who has been dismissed” to support the broader interest which parties such as a registered industrial organisation have in enforcing civil remedy provisions.

    The categories of persons who may enforce civil remedy provisions have differing legal interests. A person who has been dismissed brings an action for the vindication of their personal rights, whereas a regulator or registered organisation brings an action for the vindication of protections provided by the legislation and for upholding the standards for the general public or workers who are eligible to join a registered organisation.

    A registered organisation does not bring an action solely to enforce the personal rights of a person affected by a dismissal, it does so in pursuance of its objective as set out in its registered rules. This position is similar to that of an inspector who brings proceedings in the discharge of their statutory duties and not by or on behalf of the employee; see Tomlinson.

    When these interests are analyzed, the legislative policy as to why only “a person who has been dismissed” is prohibited from bring a second proceeding is apparent. Where an action is brought by a person and remedies obtained, a secondary proceeding brought by the same individual applicant can serve no purpose other than “double dipping”. In contrast, a union may bring an action to vindicate the statute and uphold public standards.

Consideration

15    Section 31A(2) of the Federal Court of Australia Act 1976 (Cth) provides that the Court may give judgment for one party against another in relation to the whole or any part of a proceeding if, inter alia, the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding. Rule 26.01(1)(a) of the Federal Court Rules 2011 (Cth) similarly provides that a party may apply to the Court for an order that judgment be given against another party because the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding.

16    Clearly BMA is required to substantiate its interlocutory claim to relief in terms of either s 31A(2) or r 26.01(1)(a).

17    In determining whether BMA has substantiated its claim that the CFMMEU has no reasonable prospect of successfully prosecuting the amended originating application currently before the Court, it is appropriate to consider whether, in circumstances where Ms Star has previously brought an unfair dismissal claim under the FW Act, s 725 of the FW Act bars the amended originating application.

18    Principles of statutory construction, including in relation to the FW Act, are well settled. Recently in Fair Work Ombudsman v Spotless Services Australia Ltd [2019] FCA 9 (Spotless), Colvin J observed:

9        In construing a statute, the task is to ascertain the contextual meaning of the words used: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 at [14]. Statutes speak as an entire instrument so it is necessary to consider the words in the context of the instrument as a whole and to construe them so as to ensure consistency between all provisions: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69] and Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 320. The relevant context also includes legislative history and extrinsic materials: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39]. It also includes pre-existing law: Alphapharm Pty Ltd v H Lundbeck A/S [2014] HCA 42; (2014) 254 CLR 247 at [42]. In an appropriate case where examination of contextual materials discloses an evident mischief that the statute was intended to remedy then the statute is to be read in that context: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408.

10        Statutory construction involves choosing from the range of possible meanings which Parliament should be taken to have intended: Independent Commission Against Corruption v Cunneen [2015] HCA 14; (2015) 256 CLR 1 at [57]. Further, the range of meanings is itself to be informed by matters of context from the outset and not just when ambiguity is thought to arise: K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309 at 315 and SZTAL at [14].

11        The context of the language used in the statutory instrument or the legislative history may aid the construction by narrowing the semantic breadth or linguistic ambiguity that may otherwise attach to the words used if considered out of context.

12        In addition, consideration of the language used in context may enable a purpose to be discerned that may be applied to aid in the choice between competing constructions. Indeed, the purpose of the statute may appear from an express statement in the legislation itself. Other contextual matters may also aid in discerning purpose. The application of the rules of statutory interpretation will properly involve the identification of a statutory purpose from these sources, recognising that it must be a purpose that 'resides' in the 'text and structure' of the legislation: Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573 at [44].

13    However, care must be taken to ensure that the purpose identified is specific enough to be used to resolve the ambiguity: Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529. Further, it is not for the Court to conjure a purpose that is more specific than the context discloses and then use that purpose to construe the legislation: Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378 at [26] and Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 at [21].

14        It is possible that there may be no available indication of a specific purpose that aids the construction: Carr v State of Western Australia [2007] HCA 47; (2007) 232 CLR 138 at [6]. In that case, the focus must be upon the textual meaning.

15        Consideration of contextual matters should not deflect the Court from what is a 'text-based activity': Alphapharm Pty Ltd v H Lundbeck A/S at [42]. Hence the warnings that matters of context should not be used to displace the clear meaning of the text: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47]. Ultimately, 'the fundamental duty of the Court is to give meaning to the legislative command according to the terms in which it has been expressed': Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619 at [16]. 'Understanding context has utility if, and so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text': Federal Commissioner of Taxation v Consolidated Media Holdings Ltd at [39].

16        So, there is a significance to be given to the ordinary or grammatical meaning in the sense that there must be a reason to depart from that meaning which is afforded by a consideration of context: SZTAL at [14] and [38]. The language used is the surest guide to legislative intention: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue at [47]. It follows that possible meanings which are less obvious or strained must be justified with some care by matters of context if they are to be determined to be the statutory meaning of the words.

17        Also, matters of context can only take the Court so far when it comes to construing the language used. The words used impose a limit beyond which the process of construction may not be taken, even in the name of advancing the evident purpose. Whilst the process of construction may even lead a Court to read a statutory provision as if it contained additional words or omitted words, it cannot fill gaps or make an insertion that is too much at variance with the language used: Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 at [38]

18        Inconvenience or improbability of result may be a reason why one construction is to be preferred over another: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation at 320-321 and Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273 at [11].

19        In considering the text used, there are many instances where it is misleading to construe a composite phrase simply by combining the dictionary meanings of its component parts: XYZ v Commonwealth [2006] HCA 25; (2006) 227 CLR 532 at [19]. Where the issue concerns the meaning of a compendious phrase then the expression must be construed as a whole within the sentence in which it is expressed: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389.

20        Finally, and more fundamentally, it is to be noted that the application of established rules of construction so as to give effect in an objective way to the manifestation of the intention of the legislature through the particular words used is an important expression of the constitutional relationship between the arms of government: Tian Zhen Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446 at [28]. The task of statutory construction should be approached accordingly. Relatedly, considerations of fairness mean that those who must obey legislation are entitled to expect that the laws will be accessible and are generally entitled to rely upon the ordinary sense of the words chosen by Parliament without 'counterintuitive judicial gloss' and this is a reason for affording importance or significance to the ordinary meaning of the words used. So, 'the court should not strain to give a meaning to statutes which is artificial or departs markedly from their ordinary meaning simply in order to preserve their constitutional validity': International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 at [42].

21        For reasons I have given, the pre-existing law in the form of decided industrial cases may form part of the context to be considered in resolving the construction questions in this case. However, it is important to be clear about the way the pre-existing law may be used. It provides an historical context in which to read the words, particularly to consider what was intended by using words in the Act that echo a phrase deployed as part of the pre-existing law. It may also assist in understanding the purpose of the excluding words in s 119(1)(a) which may then be used to choose between competing constructions.

22        However where, as here, there is no contextual matter manifesting an intention to simply codify the rights conferred by the pre-existing law in the form of the industrial law decisions, the construction task is more subtle than simply asking whether the words bear the meaning they were given in the pre-existing law. The words are placed in a new legislative context. It is necessary to consider the context established by those provisions with some care. It is also possible that the statutory words were placed in a particular context that was intended to build on the pre-existing law by resolving ambiguity that was present or by qualifying or adjusting the way the words are to be understood.

19    I respectfully adopt these principles.

20    Earlier guidance in respect of principles of statutory construction was provided by the High Court in Certain Lloyd’s Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378. In particular, French CJ and Hayne J observed at [24]-[26]:

[24]    The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, “[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute” (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision “by reference to the language of the instrument viewed as a whole”, and “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”.

[25]     Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative “intention” is to use a metaphor. Use of that metaphor must not mislead. “[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have” (emphasis added). And as the plurality went on to say in Project Blue Sky:

Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction38 may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.

To similar effect, the majority in Lacey v A-G (Qld) said:

Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts. (footnote omitted)

The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention.

[26]    A second and not unrelated danger that must be avoided in identifying a statute’s purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions. As Spigelman CJ, writing extra-curially, correctly said:

Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation. It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case. (emphasis added)

And as the plurality said in Australian Education Union v Department of Education and Children’s Services:

In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose. (footnote omitted)

21    More recently in Taylor, the majority of the High Court said at [37]-[38]:

[37]     Consistently with this court’s rejection of the adoption of rigid rules in statutory construction, it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation. As the review of the authorities in Leys demonstrates, it is possible to point to decisions in which courts have adopted a purposive construction having that effect. And as their Honours observed by reference to the legislation considered in Carr v Western Australia, the question of whether a construction “reads up” a provision, giving it an extended operation, or “reads down” a provision, confining its operation, may be moot.

[38]     The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills “gaps disclosed in legislation” or makes an insertion which is “too big, or too much at variance with the language in fact used by the legislature”.

22    Turning now specifically to the terms of s 725 of the FW Act, it is clear that the section specifically prevents a person who has been dismissed from bringing a second application “in relation to” their dismissal. Notwithstanding the submissions of BMA to the contrary, I do not consider that s 725 prevents the amended originating application brought the CFMMEU in the current proceedings. To that extent, I am not satisfied that the CFMMEU has no reasonable prospects of prosecuting its amended originating application.

23    I have formed this view for the following reasons.

24    First, although s 725 prohibits “a person who has been dismissed” from bringing a subsequent application in relation to their dismissal, BMA contends that this should be construed as a prohibition on an application made “by or on behalf of the dismissed person”. Indeed, there is authority that the Court may read a provision “as if it contained additional words… with the effect of expanding its field of operation”; see Taylor at [37]. However, Taylor at [38] also cautioned against interpretations that are “too big, or too much at variance with the language in fact used by the legislature”.

25    As Colvin J explained in Spotless, it is important to consider statutory phrases in the context of the legislation “as a whole and to construe them so as to ensure consistency between all provisions” (see also Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69] and Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 320). His Honour also noted at [9] that “statutes speak as an entire instrument.”

26    In considering the phrase “a person who has been dismissed” in s 725, it is important to consider the surrounding provisions of the FW Act. Section 725 is contained in SubDiv B Div 3 Pt 3 of the FW Act, which also includes ss 726-733. Unlike s 725 which specifically refers to “a person who has been dismissed” making a subsequent application or complaint, ss 726-728 and ss 730-732 are couched in terms of applications “made by, or on behalf of, the person”.

27    I accept the submissions of the CFMMEU that the language of s 725 –contrasted with the terms of ss 726-728 and ss 730-732 – reveals a conscious decision on the part of the legislature to limit the application of the prohibition contained in s 725 to “a person who has been dismissed”. To read s 725 as containing additional words creating a prohibition on an application made “by or on behalf of the dismissed person” would be “too much at variance with the language in fact used by the legislature”, as noted in Taylor.

28    Second, statutory construction of s 725 properly requires an examination of the purpose of s 725. As the majority explained in Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573 at [44]:

The application of the rules will properly involve the identification of a statutory purpose, which may appear from an express statement in the relevant statute, by inference from its terms and by appropriate reference to extrinsic materials. The purpose of a statute is not something which exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction.

(Emphasis added.)

29    I also note the terms of s 15AA of the Acts Interpretation Act 1901 (Cth) which provides:

In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.

30    The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) provided as follows:

2707.      This Subdivision is intended to prevent a person ‘double-dipping’ when they have multiple potential remedies relating to a dismissal from employment by seeking to limit a person to a single remedy. 

2708.    Clauses 726 to 732 set out all of the potential remedies that may apply.  Clause 725 is the key operative provision.  It provides that if a person has made an application that falls within any of clauses 726 to 732 then they may not bring an application that falls within any of the other clauses.

31    In this context I am satisfied that:

    An individual may pursue a remedy for the vindication of their own personal rights, and

    An individual’s interest in commencing a proceeding will differ from those of an organisation such as the CFMMEU, which may commence proceedings for the vindication of protections claimed in the FW Act, and to uphold standards for the class of workers who are eligible to join the CFMMEU (for further discussion of this point see the judgment of Powers J in Burwood Cinema Ltd v Australian Theatrical and Amusement Employees’ Association (1927) 35 CLR 528 at 542 et seq).

32    Further, as the Explanatory Memorandum makes plain, where an individual has commenced a proceeding, the purpose of s 725 is to prevent that individual from “double dipping” by bringing multiple actions in relation to that dismissal. To the extent that the union has other interests to protect, there is no “double dipping” within the meaning of s 725 by the union subsequently bringing an action referable to the relevant employee’s dismissal. I therefore do not accept BMA’s submission that a failure to read s 725 as if it contained additional words would result in s 725 not achieving its evident purpose.

33    Third, BMA submitted that an interpretation favouring the ability of the CFMMEU to bring subsequent applications after an initial unfair dismissal application by “a person who has been dismissed” could promote abuse of the processes of the Court by the commencement of multiple proceedings relating to the same issues. However the Court has control of its own processes, and in circumstances where a party attempts to replicate an earlier application seeking the same relief, it is open to the Court to strike out such applications as abuse of process referable to multiplicity of proceedings (see for example discussion in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175) or, in respect of finalised proceedings, as res judicata (see for example discussion in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1). Applications may also be found to be an abuse of process, where they “simply seek to relitigate a case which has already been disposed of by earlier proceedings”; see Ninan v Valuer-General of Western Australia [2013] FCA 789.

34    In Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699, French J considered:

[66]    The doctrines of res judicata, issue estoppel and Anshun do not exhaust the circumstances in which a proceeding may be regarded as amounting to an abuse of process by way of attempted relitigation of a dispute already judicially determined. As another Full Court said in Coffey v Secretary, Department of Social Security (1999) 86 FCR 434 (at 443):

‘An attempt to litigate in the Court a dispute or issue which has been resolved in earlier litigation in another court or tribunal may constitute an abuse of process even though the earlier proceeding did not give rise to a res judicata or issue estoppel: see Sea Culture International v Scoles (1991) 32 FCR 275 at 279 and Walton v Gardiner (1993) 177 CLR 378 at 393-394. Whether it does depends on the facts of the particular case.’

[67]    The considerations of public policy which underlie res judicata and issue estoppel help to define the scope of abuse of process by relitigation generally. As Lord Hoffman said in Arthur JS Hall & Co v Simons [2000] 3 WLR 543 at 572, the underlying policies are that a defendant should not be troubled twice for the same reason and that there is ‘a general public interest in the same issue not being litigated over again’. Lord Hoffman observed that the second rationale could be used to justify the extension of the rules of issue estoppel to cases in which the parties are not the same but the circumstances are such as to bring the parties within the spirit of the rule. In that regard he referred to Reichel v Magrath and Hunter v Chief Constable of the West Midland Police.

35    In circumstances where the CFMMEU has its own interests as a representative body to protect, including in respect of its members who work on BMA sites, I am satisfied that the present circumstances do not constitute an abuse of this nature.

36    Fourth, BMA identified as a policy inconsistency the prospect that s 725 would bar a person bringing an action in relation to their own dismissal if, for example, the union had already made an application or complaint of the kind referred to in one of ss 726-728 or ss 730-732, but does not prevent the further application by a union such as the CFMMEU if a dismissed individual had brought unfair dismissal proceedings.

37    This policy curiosity advanced by BMA may very well be the case. However, such is the effect of the legislation and the plain meaning of the language of s 725. No policy imperative has been demonstrated to warrant an interpretation of s 725 inconsistent with the plain language of the section and its statutory purpose.

38    Section 725 does not prevent the CFMMEU from bringing the substantive application in this matter.

39    In light of this finding, it is not necessary to consider whether the application brought is “in relation to” Ms Star’s dismissal.

40    The appropriate order is that the amended interlocutory application filed on 4 July 2019 be dismissed.

41    It is also appropriate to list the matter for case management, to progress the substantive application.

Associate:

Dated:    19 December 2019