Federal Court of Australia

Hot Wok Food Makers Pty Ltd v United Workers Union [2022] FCA 1417

ORDERS

THE COURT ORDERS THAT:

1.    The application for an interlocutory injunction be dismissed.

2.    Leave be granted for the amendment of the originating application in terms of the proposed amended originating application in exhibit CM-4 filed on 9 November 2022.

3.    Costs be reserved.

4.    The respondent Union file and serve an outline of submissions on the question of costs, of not more than three pages, by 17 November 2022.

5.    The applicant file and serve an outline of submissions on the question of costs, of not more than three pages, by 21 November 2022.

6.    The respondent Union file and serve any submissions in reply, of not more than two pages, by 25 November 2022.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    On 21 October 2022, a Full Bench of the federal conciliation and arbitration commission, presently known as the Fair Work Commission (industrial commission), made these orders:

(1)    Time is extended for the UWU [United Workers Union] to file its appeal in this matter up to and including 31 May 2022.

(2)    Permission to appeal is granted.

(3)    Appeal grounds 1 and 4 are upheld.

(4)    The UWU is granted access to Commission’s files and matters AG2021/9127, AG2021/5335 and AG2016/7753.

(5)    The appeal is listed for a further directions hearing at 12:30 pm (AEDT) / 11:30 am (AEST) on Friday, 28 October 2022.

[Emphasis in original]

2    A further directions hearing was held on 28 October 2022. A sequel to that was the listing of the further hearing of the appeal before the Full Bench to occur on 25 November 2022. Related to that further hearing, on 8 November 2022, the industrial commission issued a series of notices to witnesses under s 590 of the Fair Work Act 2009 (Cth) (FWA), requiring attendance at the hearing on 25 November 2022 by particular named persons. Those notices to attend to give evidence were issued on the Full Bench’s own motion.

3    There is an earlier history of proceedings before the Full Bench, which is recited in the reasons of the Full Bench: see United Workers Union v Hot Wok Food Makers Pty Ltd [2022] FWCFB 191. That earlier history includes reference to an earlier proceedings in the present matter before the Court. Those earlier curial steps commenced with the filing of an originating application on 30 August 2022. The Full Bench has, quite properly, filed a submitting notice, which is not to say that the Full Bench has refrained from proceeding further whilst the proceedings were before the Court. Once again, the basis of that further proceeding following the filing of the originating application is set out in the reasons of the Full Bench.

4    In many ways, it would have been preferable for the interlocutory injunction application to have been heard and determined before today. As it is, there has been an evolution of steps in the Commission. What falls for determination now is not whether an interlocutory injunction might earlier have been granted, but rather whether such an injunction ought now be granted. That, in turn, means that the focus of whether or not to grant such an interlocutory injunction must be in the events which have transpired to date, not in the events as they stood as at 30 August 2022.

5    The principles which attend whether or not to grant an interlocutory injunction were not controversial between the parties. It was, as it had to be, accepted that they are as set out in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57. In particular, it falls to Hot Wok Food Makers Pty Ltd (Hot Wok), as the applicant for the interlocutory injunction, to establish there is a prima facie case that it is entitled to the final relief it now seeks and that the balance of convenience favours the granting of an interlocutory injunction.

6    To establish a prima facie case, it is not necessary for Hot Wok to show that it is more probable than not that it will succeed. It need only show a sufficient likelihood of success to warrant in the circumstances a preservation of the status quo pending the final hearing and determination of its application for orders in the nature of orders that may be made in the High Court in the original jurisdiction conferred by s 75(5) of the Constitution, a jurisdiction which is, materially for present purposes, conferred on this Court by s 39B of the Judiciary Act 1903 (Cth).

7    The two considerations which I have mentioned which are pertinent to whether or not to grant an interlocutory injunction, whilst conceptually discrete, nonetheless interplay in deciding whether or not to grant an interlocutory injunction. By that, I mean that, depending on the circumstances of a given case, the strength of a prima facie case in the face of balance of convenience considerations might have to be particularly great if the balance of convenience did not favour the granting of an interlocutory injunction. And the reverse, as well as intermediate positions, is also true. In the end, it is a matter for evaluation having regard to those two considerations in the circumstances of a given case.

8    The proposed grounds of review have been set out in a concise statement filed by Hot Wok. They are:

21.    The Applicant contends that the Fair Work Commission, constituted by the Full Bench, in pursuing or proposing to pursue the concerns in the concerns email, that it considers are potentially grounds for challenging the approval of the Hot Wok Agreement, which were not raised by the UWU in its proposed grounds of appeal, and by making the Attendance Orders, the Hot Wok Production Order, and the Staff Services Production Order under s.590(2) of the [FWA], misconceived its appellate jurisdiction under s.607 of the [FWA], and has thereby fallen into jurisdictional error.

22.    The Applicant contends by engaging in the conduct set out below a fair-minded lay observer might reasonably apprehend that the Fair Work Commission, constituted by the Full Bench, might not bring an impartial mind to the resolution of the appeal of the Hot Wok Agreement Decision namely:

(a)    sending the concerns email;

(b)    issuing the 9 August 2022 Statement;

(c)    making the 18 August 2022 Decision;

(d)    issuing the Hot Wok Production Order;

(e)    issuing the Staff Services Production Order;

(f)    issuing the Attendance Orders;

(g)    issued the 28 October 2022 directions; and

(h)    issuing the Further Attendance Orders.

9    On those grounds, Hot Wok seeks an order in the nature of certiorari, removing the proceedings before the Full Bench into this Court for the purpose of quashing the Full Bench’s decision as earlier detailed made on 21 October 2022, and what are described as ancillary directions and orders made by the Full Bench in the proceedings. The proceedings before the Full Bench challenge an approval of an enterprise agreement. Once again, the background to the approval and the challenge is set out in the reasons of the Full Bench.

10    This Court has no appellate jurisdiction in respect of decisions of a Full Bench of the industrial commission. The jurisdiction is wholly one of judicial review. The nature of that jurisdiction and, for that matter, the nature of an appeal to the Full Bench of the Commission is as described in the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 and, notably, in this Court in Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union (2015) 230 FCR 565 (Teys).

11    It is plain enough from the background recited by the Full Bench in its reasons that, upon initially encountering the application for permission to appeal, the members of the Full Bench had, by virtue of a wider industrial knowledge, particular concerns about the approval of the enterprise agreement in the industrial commission’s original jurisdiction.

12    The Full Bench did not keep those concerns to itself. Rather, it aired them at an early stage with the parties by email. The subsequent steps taken by the Full Bench are recited in detail in its reasons. Each of them, in my view, was attended, prima facie at least – and that is all that need to be observed for the purpose of the present application – with adherence to the provision of an opportunity to be heard to each of the parties to the proposed appeal.

13    As it transpired, those concerns having been aired, the UWU unsurprisingly came to embrace them and sought amendment to the grounds of appeal in respect of the proposed appeal. Those amendments, which have become appeal grounds 4(a) and (b), embrace those concerns. The Full Bench has permitted amendment of the notice of appeal.

14    The presently issued witness attendance notices are a replication of an earlier disposition of the Full Bench to require persons to attend. As it transpires, that earlier attendance did not come to pass. The Full Bench considered itself able to, and did, resolve appeal grounds 3(a) and (d) (described as grounds 1 and 4 by the Full Bench, a designation I will adopt hereafter), without the need for the attendance of particular witnesses as had been contemplated.

15    The Full Bench has, notwithstanding its disposition to uphold appeal grounds 1 and 4, not finally determined the appeal but rather adjourned the appeal part heard with the hearing now to reoccur on 25 November. In accordance with what was accepted as common ground to be the usual practice in proceedings before the Full Bench, the proceedings for permission to appeal were treated as also proceedings for any resultant appeal if permission would be granted.

16    Strictly speaking, and as is explained in Teys, there is a two-stage process with respect to an appeal to the Full Bench; the stages being whether or not to grant permission and, if permission be granted, to proceed with the hearing of the appeal. That appeal is by way of rehearing, with the question being whether or not having regard to the grounds of appeal the Full Bench should uphold the appeal. In conducting an appeal, the Full Bench is equipped for the purposes of the rehearing with, notably, the powers set out in s 590 of the FWA. The other powers exercisable on the appeal and the obligations which fell on the Full Bench were neatly summarised by the Full Bench at [87] of its reasons. They are as follows:

•    the Commission must perform its functions and exercise its powers in a manner that is, among other things, quick, informal and avoids unnecessary technicalities(s 577(b));

•    the Commission may, subject to the FW Act, inform itself in relation to any matter before it in such manner as it considers appropriate (s 590(1));

•    the Commission may inform itself by, among other things, conducting inquiries and undertaking research (s 590(2)((f) and (g));

•    the Commission is not bound by the rules of evidence and procedure in relation to a matter before it (s 591);

•    subject to the FW Act, the Commission is not required to make a decision in relation to an application in the terms applied for (s 599); and

•    in an appeal, the Commission may admit further evidence and take into account any other information or evidence (s 607(2)).

17    It was put on behalf of Hot Wok that the Commission had engaged in a very unusual procedure in relation to the hearing of this particular appeal. That was not gainsaid by the UWU, although the UWU submitted that, however unusual it might be, having regard to the statutory provisions referred to by the Full Bench at [87] of its reasons, it was nonetheless a permissible procedure.

18    In assessing whether or not to grant an interlocutory injunction, it is of course not incumbent upon me to reach any concluded view about the jurisdictional errors alleged in either [21] or [22] of the concise statement. Suffice it to say, and as was observed in respect of an earlier manifestation of the industrial commission in Re Polites; ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78, the industrial commission is a specialist industrial forum to which persons having particular expertise are appointed by the Governor-General in Council.

19    It is necessary to recall that feature, both in relation to the course adopted by the Full Bench for the purposes of the hearing of the appeal and related permission to appeal and also in respect of the allegation that there exists a reasonable apprehension of bias on the part of the members of the Full Bench. As to the latter, I would observe that it appears to me there is quite some merit in Hot Wok’s proposition that it is not possible to quarantine any apprehension of bias. By that, I mean if, truly, there were a case for a conclusion that there existed a reasonable apprehension of bias, that would infect, in my view, the decision made on 21 October and any final decision. And that would be so even though, as was put on behalf of the UWU, grounds 1 and 4 turned on particular tests one applies in relation to the approval of enterprise agreements rather than any other issue and, in particular, rather than appeal grounds 2 and 3 (being grounds 3(b) and (c) in the notice of appeal).

20    Even accepting that, however, and considering first whether there exists a reasonable apprehension of bias, a reasonable apprehension is not to be found in what one might term a conspiracy theory. Especially that is so in relation to a specialist industrial conciliation and arbitration forum where a Full Bench is embarked on an appeal by way of rehearing.

21    The relevant law was, with respect, very well summarised indeed by Bond J in Parbery v QNI Metals Pty Ltd [2018] QSC 213, at [29] and following. I gratefully adopt his Honour’s discussion of the relevant law. One finds there a succinct statement at [32] of what has been termed the “double might” test enunciated, notably, in the High Court in Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427. A statement made by reference to authority by Bond J at [32] featured prominently in the UWU’s submissions as to why I should not conclude that there existed a serious question to be tried. His Honour observed:

But if the possibility of such a reasonable apprehension does not exist, it will not suffice that there might be a reasonable apprehension that the judge will decide an issue or issues adversely to one party.

[Citation omitted]

22    It may well be that there is, given that issues which have translated into grounds 4(a) and (b) in the appeal were initially raised by the Commission of its own motion – that there is an attraction in those grounds. But it does not, in my view, follow that the Full Bench will do other than what it has done to date at each stage of the appeal proceeding, which is to offer an opportunity to be heard to each of the parties, and only after hearing or at least offering the opportunity for a hearing reaching a conclusion will not be followed on 25 November and any subsequent stage leading to the final hearing and determination of the appeal. I am not persuaded that there exists a serious question to be tried in relation to whether there is, in the events which have transpired, as recited by the Full Bench in its decision of 21 October, a reasonable apprehension of bias.

23    Perhaps a different view will be reached on greater reflective consideration on the final hearing of the proceeding. But, as presently advised, I am just not persuaded that there is a question of sufficient likelihood of success on that ground to warrant a granting of an interlocutory injunction.

24    As to the ground specified in [21] of the concise statement, I well accept that the course adopted by the Full Bench is unusual. But the reasons of the Full Bench expose fully why it has embarked upon this course; it has done so now for the purpose of resolving the remaining grounds of appeal. The powers conferred on the Full Bench by s 590 of the FWA, prima facie at least, permit it to do so and to do so for the purpose of determining the appeal in the exercise of a jurisdiction conferred by s 607 of the FWA.

25    So again, whilst a different view might ultimately be reached, as a matter of initial impression I am not persuaded that any of the grounds set out in [21] of the concise statement enjoy a sufficient likelihood of success to warrant the granting of an interlocutory injunction.

26    Balance of convenience considerations also intrude in relation to the subject of sufficient likelihood to warrant the granting of an interlocutory injunction. By that, I mean that there is a very long industrial history indeed to the proceedings before the Full Bench. Hot Wok had grounds which were not in any way precious for opposing the granting of an extension of time within which to appeal to the Full Bench. But for reasons set out in the decision of 21 October, the Full Bench was nonetheless persuaded to grant an extension of time.

27    That being so, and given the nonetheless lengthy industrial history in relation to the enterprise agreement, there is an overwhelming public interest, in my view, at least in the completion by the Full Bench of its appeal process. Of course, it may be that on the hearing substantively of the judicial review application that that application comes to be expanded so as to challenge the final decision made by the Full Bench. But there is a singular interest, in my view, in permitting the Full Bench to complete its task. In the event that the judicial review challenge fails, there will then be no further proceedings before the Full Bench and thus no further delay in the resolution industrially of the controversy concerning the enterprise agreement. I find that consideration particularly persuasive on balance of convenience grounds.

28    For these reasons then, the application will be dismissed.

29    I will grant leave for the amendment of the originating application in terms of the draft proposed amended originating application annexed to the affidavit of Mr Mossman filed on 9 November 2022.

Associate:    

Dated:    25 November 2022