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Transport Workers Union v School Bus Contractors Pty Ltd [2011] FMCA 28 (4 February 2011)

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Transport Workers Union v School Bus Contractors Pty Ltd [2011] FMCA 28 (4 February 2011)

Last Updated: 9 February 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TRANSPORT WORKERS UNION v SCHOOL BUS CONTRACTORS PTY LTD

INDUSTRIAL LAW – General protections court application – alleged unlawful termination following short period of sick leave – application in a case for extension of time in which to file application – application in a case to change name of respondent.

PRACTICE AND PROCEDURE – Extension of time in which to file application – principles – explanation for delay – whether representative error where application made by industrial association – effect of representative error – action taken otherwise to contest dismissal – whether action outside Fair Work Act required – prejudice – merits – fairness.

PRACTICE AND PROCEDURE – Application in a case to amend name of respondent – principles – clerical error.

STATUTES – Interpretation – note – statutory note – status – whether part of text of statute – whether an aid to interpretation.

COURTS – Rights of representation – industrial law matters – lawyers – union officers.

Acts Interpretation Act 1901 (Cth), ss.13(3), 15AB
Corporations Act 2001 (Cth)
Fair Work Act 2009 (Cth), Part 4-1 Division 2, ss.12, 352, 361, 365, 366(1)(a), 368, 369, 370(2), 371, 570, 773
Fair Work (Registered Organisations) Act 2009 (Cth), ss.6, 353A
Fair Work Regulations 2009 (Cth), reg 1.07
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), Part 2-9, Schedule 23, Items 9A, 9B
Federal Court Rules, O.13, r.2
Federal Magistrates Act 1999 (Cth), ss.44, 52(1)
Federal Magistrates Bill 1999 (Cth)
Federal Magistrates Court Rules 2001 (Cth), rr.4.04, 7.01, 7.03, 21.02(1)(c)
Industrial Relations Act 1988 (Cth), ss.170EA, 170EB,170EC, 170ED
Judiciary Act 1903 (Cth), ss.55A, 55B, 55C
Workplace Relations Amendment (Termination of Employment) Bill 2000 (Cth)
Workplace Relations Act 1996 (Cth), ss.170CE(7A), 170CP(6), 663(6)

Alphafarm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd & Ors [1994] FCA 996; (1994) 49 FCR 250
Bradley v The Commonwealth [1973] HCA 34; (1973) 128 CLR 557
Bridge Shipping Pty Limited v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231
Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Ltd & Ors [2010] FMCA 932
Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
Buckingham v KSN Engineering Pty Ltd (2008) 177 IR 427; [2008] FMCA 546
Christie v Harvey & Hayward (1900) 2 WALR 146
Clark v Ringwood Private Hospital (1997) 74 IR 413
Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441
Cooper v Keppel Community Care Association Inc [2010] FWA 7680
Crompton v Buchanan & Ors [2010] QCA 250
Director of Public Prosecutions v Schildkamp [1971] AC 1
Dorrian v Rushlyn Pty Ltd [2010] FMCA 787
Doyle v Gillespie (2010) 173 ACTR 66; [2010] ACTSC 21
Evans v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2003) 135 FCR 306; [2003] FCAFC 276
Gera v Commonwealth Bank of Australia Ltd (2010) 62 AILR 101-209; [2010] FMCA 205
Hayward v Rohd Four Pty Ltd (2008) 177 IR 212; [2008] FMCA 1490
Hughes v Mainrange Corporation Pty Ltd (No. 2) (2009) 190 IR 351; [2009] FMCA 1044
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344
Jackamarra v Krakouer & Anor (1998) 195 CLR 516; [1998] HCA 27
One.Tel Ltd (in liq) v Rich & Ors (2005) 190 FLR 443; [2005] NSWSC 226
Re Insurance Australia Group Ltd (2003) 128 FCR 581; [2003] FCA 581
Rentuza v Westside Auto Wholesale (2009) 236 FLR 231; [2009] FMCA 1022
Repco Corporation Ltd v Scardamaglia [1996] VicRp 2; [1996] 1 VR 7
Re Woking Urban Council (Basingstoke Canal) Act 1911 [1914] 1 Ch 300
Rogers v Millennium Inorganic Chemicals Ltd (2009) 229 FLR 198; [2009] FMCA 1
Salter Rex & Co v Ghosh [1971] 2 QB 597
Sherwood Overseas Co Pty Ltd v Jaymac International Pty Ltd [2008] FMCA 495
Smithkline Beecham (Australia) Pty Limited v Minister for Family Services & Anor [1993] FCA 523; (1993) 45 FCR 587
Stephens v Australian Postal Corporation [2010] FMCA 1012
Tandoegoak & Anor v Margeruite Gerard Pty Ltd [2007] FMCA 621
Transport Workers Union of Australia v National Dairies Limited (No 2) (1994) 57 IR 186
Transport Workers Union of Australia v Veolia Environmental Services (Australia) Pty Ltd T/A Veolia Environmental Services [2010] FWA 9622
Turner v K&J Trucks Coffs Harbour Pty Limited (1995) 61 IR 412
Welsh v Allblend Holdings (No 2) (2010) 239 FLR 234; [2010] FMCA 377
Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722; [2004] FCA 51
Yong v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155

P St J Langan, Maxwell on The Interpretation of Statutes (12th Edn) (London: Sweet and Maxwell, 1969)
DC Pearce and RS Geddes, Statutory Interpretation in Australia (6th Edn) (Chatswood: LexisNexis Butterworths, 2006)
Explanatory Memorandum, Workplace Relations Amendment (Termination of Employment) Bill 2000
Hon DR Williams QC, Second Reading Speech, Federal Magistrates Bill 1999

Applicant:
TRANSPORT WORKERS’ UNION OF AUSTRALIA

Respondent:
SCHOOL BUS CONTRACTORS PTY LTD

File Number:
PEG 204 of 2010

Judgment of:
Lucev FM

Hearing date:
23 December 2010

Date of Last Submission:
23 December 2010

Delivered at:
Perth

Delivered on:
4 February 2011

REPRESENTATION

Counsel for the Applicant:
A Dzieciol

Solicitors for the Applicant:
A Dzieciol, Transport Workers’ Union

Counsel for the Respondent:
D A L Johnston (pro bono)

ORDERS

(1) That the time for filing of the application be extended under s.371(2) of the Fair Work Act 2009 (Cth) to 9 November 2010.
(2) That the name of the respondent in the application be amended by deleting the word “Contractors” and inserting the word “Logistics”.
(3) That the matter be adjourned to a directions hearing at 9.15am on 11 February 2011.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 204 of 2010

TRANSPORT WORKERS’ UNION OF AUSTRALIA

Applicant


And


SCHOOL BUS CONTRACTORS PTY LTD

Respondent


REASONS FOR JUDGMENT

Application in a case

  1. Before the Court is an application in a case by the applicant, the Transport Workers’ Union,[1] seeking:
    1. an extension of time in which to file the substantive application,[2] which is a general protections court application;[3] and
    2. an amendment to the name of the respondent to the Application.

Application

  1. The Application alleges dismissal of an employee in contravention of a general protection under the FW Act. Filed on 9 November 2010, the Application:
    1. alleges that the employee, Ms Jones, was dismissed after returning to work after a short period of sick leave, the sick leave allegedly being for anxiety attacks caused by being directed to drive a bus that had been deemed unfit to be driven by a Public Transport Authority Inspector; and
    2. seeks compensation and the imposition of a pecuniary penalty.
  2. The Application:
    1. was filed four days out of time; and
    2. names as the respondent, and employer, “School Bus Contractors Pty Ltd”.
  3. The Application attaches a certificate issued under s.369 of the FW Act[4] from Fair Work Australia[5] naming the respondent as “School Bus Logistics Pty Ltd T/A School Bus Logistics”. Section 371(1) of the FW Act provides that unless a general protections court application – which the Application is – includes an application for an interim injunction – which the Application does not – the general protections court application must not be made unless FWA has issued a certificate under s.369 of the FW Act in relation to the particular dispute. Therefore, the Section 369 Certificate is an essential requirement in relation to a general protections court application under s.371 of the FW Act, and without it the Court does not have jurisdiction.[6] The Section 369 Certificate in this case says that:
  4. Attached to the Application is a letter on the letterhead of “School Bus Logistics Pty Ltd” of “153 George Road Geraldton WA 6530” dated 16 August 2010 advising Ms Jones of the termination of her employment from that day. The same address appears at Part B – Point 7 of the form 2 claim form under “Employer’s trading address or registered office”.

Affidavit in support of the Application

  1. A short affidavit in support of the Application was affirmed by Joshua Barry Dalliston on 9 November 2010.[7] Mr Dalliston is an Industrial Officer employed by the Union in its WA Branch office who is responsible for preparing applications to FWA, this Court, and other courts and tribunals, as required by Senior Industrial Officers in the Union.[8] Mr Dalliston says that:
    1. the Union received the Section 369 Certificate on 22 October 2010; and
    2. on 25 October 2010 he was instructed to prepare an application to this Court in relation to the matter.[9]
  2. Mr Dalliston then says that he “was involved with several other applications for other matters and overlooked the making of this application”, but that on “reviewing matters” on 9 November 2010 “realised that the application had not been filed and on realising this ... took immediate steps to prepare the application and file it with the Court.”[10]

Response

  1. On 22 November 2010 a response[11] was filed opposing the making of the orders sought in the Application. The Response is filed in the name of “School Bus Logistics Pty Ltd” of “153 George Road, Geraldton WA”. Further, a contact email address is given as follows:
  2. The grounds of opposition in the Response take issue with the factual premises in relation to:
    1. a medical certificate provided by Ms Jones in relation to her illness; and
    2. the alleged direction by a Public Transport Authority Inspector.
  3. The Response indicates that:
  4. Regulation 1.07 of the Fair Work Regulations 2009 (Cth)[12] provides as follows:

Affidavit in support of Response

  1. Ms Rachel Hart filed an affidavit dated 22 November 2010 in support of the Response.[14] In Ms Hart’s Affidavit, “School Bus Logistics Pty Ltd” is named as the respondent and filing party. Ms Hart’s Affidavit includes “School Bus Logistics Pty Ltd” after her name as the deponent of the affidavit, gives an address of 153 George Road, Geraldton, WA 6530, and lists her occupation as “Company Director”.
  2. Neither the Response nor Ms Hart’s Affidavit raise the issue of, or make any objection with respect to, the Union:
    1. requiring an extension of time in which to file the Application; or
    2. naming the “wrong” respondent in the Application.

Directions hearing – issues raised

  1. At a directions hearing in this matter on 3 December 2010 the Court indicated to the Union that the Application was out of time and that an extension of time was required. The “respondent” also then, through Counsel, took issue with whether the correct respondent had been named in the Application. There was no consent to an extension of time for filing of the Application, or an amendment to the respondent’s name. The Court therefore made programming directions and listed those two matters for a preliminary hearing.
  2. Those two matters are the current issues for determination by the Court, namely:
    1. whether the Union ought to be granted an extension of time in which to file the Application; and
    2. whether the Union ought to be granted leave to amend the name of the respondent.

Mr Dalliston’s second affidavit

  1. On 10 December 2010 the Union filed a second affidavit affirmed by Mr Dalliston on that date.[15] In Mr Dalliston’s Second Affidavit he says that:
    1. he was instructed to prepare an application to FWA in relation to the dismissal of Ms Jones,[16] who is a Union member;[17]
    2. the Fair Work Application was lodged on 24 August 2010;[18]
    1. the Fair Work Application is attached and names the respondent as “School Bus Logistics Pty Ltd” with a trading name of “School Bus Logistics”, and address of 153 George Road Geraldton, and an email of “schoolbuslogistics@bigpond.com”;[19]
    1. he was aware at the time that he prepared the Application that it was out of time, and that it needed to be filed as soon as possible;[20] and
    2. as a consequence of his awareness that the Application was out of time and needed to be filed as soon as possible he was “rushed in preparing this application” and therefore “typed in the name of the Respondent as “School Bus Contractors Pty Ltd” instead of “School Bus Logistics Pty Ltd” which is the name that appears on the Fair Work Australia documents relating to this matter”, and that he “had intended to name the Respondent as “School Bus Logistics Pty Ltd””.[21]

Other factual background

  1. Other relevant facts are as follows:
    1. Ms Jones was employed as a school bus driver by School Bus Logistics Pty Ltd;[22]
    2. Ms Jones was absent from work from Monday 9 August 2010 to Friday 13 August 2010;[23]
    1. Ms Jones provided School Bus Logistics with a medical certificate[24] for the period from 6 to 13 August 2010;[25]
    1. on 13 August 2010 Ms Jones informed School Bus Logistics that she had recovered from her illness and that she was fit to return to work on 16 August 2010, which was the next working day after the period covered by the Medical Certificate;[26]
    2. on 16 August 2010 School Bus Logistics terminated Ms Jones’ employment;[27]
    3. on 24 August 2010 the Union, on Ms Jones’ behalf, filed the FWA Application alleging that the termination of Ms Jones’ employment was in contravention of the general protection against dismissal for temporary absence because of illness or injury in s.352 of the FW Act;[28]
    4. the Fair Work Application was the subject of a conciliation conference by FWA on 7 October 2010, and FWA issued the Section 369 Certificate on 22 October 2010 indicating that all reasonable attempts to resolve the dispute between the parties had been and were unlikely to be successful;[29]
    5. under s.371(2) of the FW Act the Union then had a period of 14 days, that is to 5 November 2010, to make an application to this Court in relation to the termination of Ms Jones’ employment; and
    6. the Union filed the Application on 9 November 2010, naming the “respondent” as “School Bus Contractors Pty Ltd”.

Extension of time

Legislation

  1. Section 371 of the FW Act provides as follows:
  2. There is a “Note” at the end of s.371(2) of the FW Act, as follows:

Principles to be applied

  1. In Brodie-Hanns v MTV Publishing Ltd[31] the Industrial Relations Court of Australia[32] said that the “principles ... appropriate to be applied”[33] in considering whether or not to grant an extension of time were as follows:
  2. The principles set out in Brodie-Hanns were said[35] to be derived from two earlier judgments of the IR Court,[36] which in turn applied the tests in the well known Federal Court judgment in Hunter Valley Developments Pty Ltd v Cohen.[37]

Notes

  1. Because the Section 371 Note refers to the principles “set down” by Brodie-Hanns it is, for reasons which will become apparent, necessary to examine the basis and effect of notes of this kind.
  2. Traditionally, notes of any kind were not considered to be part of the statute,[38] because they were “inserted not by Parliament nor under the authority of Parliament, but by irresponsible persons.”[39] Or, perhaps more orthodoxly, because they are “not the product of anything done in Parliament”.[40] Notes not being part of the statute remains the primary position in Australia by reason of s.13(3) of the Acts Interpretation Act. Notes, insofar as they constitute “extrinsic material”, may however be referred to in appropriate cases to assist in the ascertainment of the meaning of a statutory provision.[41]
  3. There may however be cases where notes do form part of the statute, or amend the existing statute. A clear example is provided in Rich. In Rich, discussing particular provisions of the Corporations Act 2001 (Cth)[42] the relevant provisions of the Explanatory Memorandum to 2004 amendments to the Corporations Act were discussed as follows:
  4. Having observed that marginal notes do not usually form any part of the statute, but that they may be used as an aid in construction, the New South Wales Supreme Court went on in Rich to observe as follows:
  5. The forerunner of the Section 371 Note was seemingly first introduced into Commonwealth workplace relations legislation in 2001. At that time it appeared as two separate notes to s.170CP(6) of the Workplace Relations Act 1996 (Cth)[45] (which allowed for an extension of time in relation to an application to the Federal Court of Australia in respect of an unlawful termination), and s.170CE(7A) of the WR Act (which allowed for the extension of time in relation to an application to the Australian Industrial Relations Commission[46] with respect to unfair dismissal).
  6. Section 170CP(6) of the WR Act which allowed for the Federal Court to extend time (which was originally proposed to be s.170CP(7) of the WR Act), and s.170CE(7A) of the WR Act, which allowed for the AIRC to extend time (which was originally proposed to be s.170(8A) of the WR Act), were not commented upon in the Minister’s Second Reading Speech in relation to the Workplace Relations Amendment (Termination of Employment) Bill 2000.[47] However, the Explanatory Memorandum to the Termination of Employment Bill 2000 made it clear that the criteria in respect of extension of time for both the Federal Court and the AIRC were based on criteria derived from principles in Brodie-Hanns. The purpose of the proposed note was to make that clear.[48]
  7. When ss.170CE(8) and (8A) and 170CP(7) and (8) of the WR Act were originally proposed in the Termination of Employment Bill 2000 they took the following form, using s.170CP(7) as the example (which is identical to s.170CE(8) save for the substitution of “Court” for “Commission”):

(7) The Court may accept an application that is lodged out of time only if the Court is satisfied that it would be equitable to accept the application.

(8) In determining whether it would be equitable to accept an application lodged out of time, the Court is to have regard to the following matters:
Note: The criteria set out above are derived from principles employed by the Industrial Relations Court of Australia in exercising a discretion to accept an application out of time in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
  1. It is apparent, therefore, that during its passage through the Commonwealth Parliament the terms of what became s.170CP(6) changed from one allowing the Federal Court to accept an application lodged out of time, but only if it was satisfied that it would be equitable to accept it, and prescribing matters to which the Federal Court must have regard in determining whether it would be equitable to accept an application lodged out of time. The criteria set out in proposed s.170CP(8) largely reflect the Brodie-Hanns principles, although in proposed s.170CP(8)(b) the action taken by the applicant to which the Court may have had regard was “action of any kind to contest the termination” rather than the more restrictive “[a]ction other than applying under the Act” in Brodie-Hanns.[49] The note to the proposed s.170CP(8) explains that the criteria are derived from principles employed by the IR Court in exercising a discretion to accept an application out of time in Brodie-Hanns. That proposed note is different to the final form of the note to s.170CP(7) of the WR Act, which is the same as the Section 371 Note.
  2. In the course of the passage through Parliament the proposed s.170CP(7) and (8) was significantly amended, so that:
    1. a specific time limitation of 14 days was introduced; and
    2. the Federal Court was allowed to extend that time, without the restriction imposed by it having to be satisfied that:
      1. it could only do so if it was satisfied that it would be equitable to accept any application; and
      2. without there being mandatory criteria which it had to consider in arriving at its judgment.
  3. The terms of the amendment make it clear that the Federal Court was being invested with a broad general discretion not circumscribed by the terms of the Brodie-Hanns principles. If it was intended to circumscribe the Court’s discretion by reference to the Brodie-Hanns principles there would have been no necessity to make the amendments to the proposed s.170CP(7) and (8). Nor does the note which then appeared to s.170CP(6) of the WR Act in the final form of the legislation prescribe principles with respect to the exercise of the Federal Court’s discretion. That note, which is in the same terms as the Section 371 Note now appears, merely notes that in Brodie-Hanns the IR Court set down principles in respect of a similarly worded provision. It does not purport to expand or circumscribe the Federal Court’s discretion in exercising its broad general discretion under what was then s.170CP(6).
  4. Although the workplace relations legislation was subsequently amended prior to the passage of the FW Act, the form of the relevant extension of time provisions and the form of what is now the Section 371 Note did not change from that which existed as s.170CP(6) of the WR Act. The note therefore survived as a note to various sections of the workplace relations legislation, for example, in s.663(6) of the WR Act in relation to unlawful termination applications, until the passage of the FW Act.
  5. The Section 371 Note did not appear in the original FW Act, but was re-introduced, in its current form, as the Section 371 Note, as Item 9B of Part 2-9 of Schedule 23 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth).[50] The re-introduction does not appear to have been commented upon in either the Second Reading Speech or the Explanatory Memorandum. The reason for the Section 371 Note not appearing in the original FW Act is however apparent from the amendment at Item 9A of Part 2-9 of Schedule 23 of the FW (Transitional Provisions) Act, which adds the words “or within such period as a court allows on an application made during or after those 14 days” to s.371(2) of the FW Act. Prior to that amendment, the Section 371 Note would not have had any purpose because the time limit was fixed.
  6. There is nothing in the Second Reading Speech or Explanatory Memorandum to the FW (Transitional Provisions) Act which indicates that any different consideration was given to the introduction of the discretion to extend time in s.371(2) and the Section 371 Note when they were “re-introduced” into the workplace relations legislation as part of s.371(2) of the FW Act to that given when the note was originally introduced in the WR Act.
  7. Setting aside the legislative history which indicates that the Commonwealth Parliament did not intend the Brodie-Hanns principles to be binding or exhaustive, there are other reasons why the Section 371 Note ought not be considered to be part of the statute, or to bind a court to the application of the Brodie-Hanns principles. They are:
    1. the general discretion vested in a court by the language of s.371(2) of the FW Act, which is in very broad terms;
    2. the Section 371 Note itself merely points to the fact that in Brodie-Hanns, principles were set down with respect to legislation which was not identical, but merely “similarly worded”; and
    1. that the intention of the Commonwealth Parliament was manifestly unlike that when it inserted the “Statutory Notes” in the Corporations Act referred to in Rich as part of the statute, where there was a clearly discernible intention to make the notes part of the statute. No such intention is discernible in this case, where Parliament expressed no view as to how the Section 371 Note ought operate and where the Section 371 Note itself offers no more than a comment or guide as to how a court might approach the exercise of the broad general discretion given by s.371(2) of the FW Act.[51] The Section 371 Note is not a “Statutory Note” of the “new breed” referred to in Rich.[52] The Section 371 Note is not only not a part of the FW Act, it also does not assist in determining the meaning of s.371(2) of the FW Act, and nor could it because of the broad general discretion invested in a court by s.371(2) of the FW Act.
  8. The Court is therefore of the view that:
    1. the Section 371 Note is not a part of the FW Act; and
    2. section 371(2) of the FW Act grants the Court such a broad general discretion that it is, in its plain terms, not compatible with any limitation which might arise from the application of the Brodie-Hanns principles.

Application of the relevant principles concerning extension of time

  1. Although the Section 371 Note does not form part of the FW Act, and although the Brodie-Hanns principles are not binding upon the Court, the Brodie-Hanns principles have been regularly applied by this Court, and do constitute a relevant guide to the criteria to be applied. The Court will therefore use the Brodie-Hanns principles as non-binding but guiding criteria in this matter.

Explanation for delay

  1. The Union submits that the delay in filing of this application was due to an error on the part of Ms Jones’ representative, the Union, being an oversight on the part of Mr Dalliston.

Oversight

  1. The oversight occurred in circumstances where, shortly after the Union received the Section 369 Certificate from the FWA, and some 10 days before the expiry of time for the making of an application, Mr Dalliston was given the task of preparing an application to this Court, a task that he regularly performs. However, Mr Dalliston got caught up in other work and he overlooked the preparation of an application in this matter. Due to that oversight the Application was filed four days late.
  2. School Bus Logistics submits that the explanation given for Mr Dalliston’s oversight is, without more, unacceptable.
  3. There is, in this case, an explanation for the delay. The explanation is simple, and understandable. Whether it is acceptable is difficult to assess as there is very little information provided, other than to say that Mr Dalliston was busy and it was an oversight. The Court is not told what the other matters were that Mr Dalliston was working on, how important they were, or why they, or events related to them, might have caused Mr Dalliston’s oversight with respect to the Application. That of course may be to read too much into what occurred, or was occurring, for it may just be a simple oversight. All that the Court can do is take the explanation which appears, which is that the pressure of work caused an oversight, at face value, and assess it as one of the factors when determining whether to grant an extension of time.

Representative error

  1. The Union asserts that this is a case of representative error by Ms Jones’ representative. That assertion begs the question as to whether or not the Union is Ms Jones’ representative for the purpose of applying the concept of representative error in relation to an extension of time in which to file a general protections court application.
  2. The Union is the applicant in the Application. It is entitled to be so by reason of s.371(1) of the FW Act. It is clear from s.371(1) of the FW Act that only a person who is entitled to apply to FWA under s.365 of the FW Act can make a general protections court application. Section 365 of the FW Act provides that:
  3. The use of the disjunctive “or” in the phrase “the person, or the industrial association” makes it clear that an applicant under s.365 of the FW Act can be of two types, namely:
    1. the dismissed person; or
    2. an industrial association entitled to represent the industrial interests of the dismissed person.
  4. This application concerns the second type of applicant, the “industrial association”. Section 12 of the FW Act defines “industrial association” to mean:
  5. There is presently no dispute that the Union is a registered “industrial association” as defined, being an industrial association of employees.
  6. The questions then arise:
    1. is the use of the word “entitled” in s.365(b) of the FW Act indicative of an industrial association being able to appear in a representative capacity for a dismissed person?; and
    2. whether, when an industrial association is itself the applicant, it can be said that there is representative error where any error or oversight which resulted in delay is that of the industrial association itself, acting through its officers or officials, or whether the error can be said to be a representative one on behalf of the person in respect of whom the industrial association is taking action?
  7. An examination of an industrial association’s entitlement to appear on behalf of those it represents may assist in answering these questions.
  8. Section 353A of the Fair Work (Registered Organisations) Act 2009 (Cth)[54] deals with representation by registered organisations in the Fair Work Divisions of the Federal Court and this Court, and is in the following terms:
  9. Section 6 of the FW (Registered Organisations) Act defines “organisation” to mean “an organisation registered under this [FW (Registered Organisations)] Act”, whilst a note to the definition provides that:
  10. For present purposes there is no dispute that the Union is an organisation for the purposes of s.353A of the FW (Registered Organisations) Act.
  11. Therefore, Mr Dalliston, as an officer of the Union, would have been entitled to “represent” the organisation, the Union, in these proceedings.[55] If Ms Jones had applied as an individual in these proceedings, and because she is a member of the Union, she would have been entitled to be represented in these proceedings by Mr Dalliston as an officer of the Union.[56]
  12. It would appear incongruous that the same error, made by the same person, could be a representative error under s.353A(3)(a) of the FW (Registered Organisations) Act if Ms Jones had applied as an individual and used the Union to prepare an application, but would not be a representative error if being represented by the Union through the agency of its officer Mr Dalliston by reason of the provisions of s.353A(2)(a) of the FW (Registered Organisations) Act. This tends to the conclusion that representative error exists even where it is the Union which is the applicant in the proceedings and which makes that error.
  13. The tendency to conclude that representative error exists even where it is the Union which is the applicant in the proceeding which makes that error is:
    1. supported by analogy to the position where a lawyer acts for the dismissed employee, and the representative error, that is the error by the lawyer, would not ordinarily disadvantage the dismissed employee.[57] It would be incongruous for an error by one representative, a lawyer, to be treated differently to an error by another representative, a union officer, especially bearing in mind that the appearance of both the lawyer and the union officer is controlled by federal legislation;[58] and
    2. further supported by the present approach of FWA (and before it the AIRC) in relation to s.365 of the FW Act, which appears not to distinguish between a situation where:
      1. an industrial association is the applicant;[59] and
      2. the dismissed person is the applicant, and the industrial association provides an officer or official to assist or conduct the case for the dismissed person.[60]
  14. In both Veolia Environmental Services and Keppel Community Care, FWA applied the principles set out by a Full Bench of the then AIRC in Clark v Ringwood Private Hospital,[61] which has been the touchstone case for representative error in federal industrial tribunals such as the AIRC and FWA. In Clark the dismissed person was the applicant and was represented by an official of the industrial association eligible to represent the dismissed person. In Clark, the Full Bench of the AIRC found that:
  15. In this case no responsibility for the delay can be apportioned to Ms Jones. The error is that of Mr Dalliston, therefore of the Union.
  16. On the basis of the above analysis of the relevant statutory provisions, the Court concludes that this is a case of representative error by the Union through the agency of Mr Dalliston.
  17. Insofar as this is a case of representative error, the authorities make it clear that, depending on the particular circumstances of the case, it may be wrong to treat the oversight or error of the Union officer, Mr Dalliston, as if it were Ms Jones’ default.
  18. As long ago as 1900 the Western Australian Supreme Court observed that:
  19. In 1984 in Hunter Valley Developments the Federal Court observed that “[i]t would be erroneous to treat the fault of the solicitors as if it were the direct default of the client”.[64]
  20. More recently, in 2010, in Doyle v Gillespie,[65] the Supreme Court of the Australian Capital Territory suggested that the Federal Court has “embraced the views of the English courts”[66] as summed up in the following comment:
  21. As recently as December 2010, this Court has observed that:
  22. The principle that an affected person should not be disadvantaged by the error or oversight of their representative is well established in workplace relations law.[69]
  23. In WorkCover and personal injuries claims, even dilatory inaction by solicitors has not prevented the granting of an extension of time to enable a claim to be pursued.[70]
  24. The representative error principle has also been applied in corporations law when lawyers were, inadvertently, out of time in applying to the stock exchange for official quotation.[71]
  25. The fact of representative error is therefore a matter which may favour the grant of an extension of time.
  26. In this case, the delay arises from a representative error, which error is a consequence, on the evidence, of a simple oversight. As soon as the oversight was realised remedial steps were taken by the Union, and the delay is, consequently, a very short one of just four days.

Actions taken otherwise to contest dismissal

  1. The Union submits that Ms Jones has taken other action to contest her dismissal, namely contacting the Union, and requesting the Union’s assistance to contest the termination, as a consequence of which the FWA Application was filed some eight days after the termination of her employment.
  2. The Union also submits that:
    1. Ms Jones did not leave it to the last possible day to challenge her dismissal: the FWA Application was made well within the 60 day period allowed by s.366(1)(a) of the FW Act;
    2. the conference before the FWA required by s.368(1) of the FW Act was held on 7 October 2010, still within the 60 day period allowed for the making of the FWA Application;
    1. School Bus Logistics participated in the conference; and
    1. School Bus Logistics has been aware since shortly after the termination of Mr Jones’ employment that the dismissal was being contested.
  3. School Bus Logistics submits that although Ms Jones extensively deposes to the circumstances surrounding the events leading up to the termination, and subsequent thereto, there is no action set out, other than applying under the FW Act, which would indicate that the termination is actively contested.
  4. School Bus Logistics’ submission assumes that the Court must apply the criteria set down in Brodie-Hanns which provides that the Court must consider whether there was any action other than applying under the FW Act so as to indicate that the termination is actively contested. For reasons set out above,[72] the Court is not limited to the application of the principles as set down by or in Brodie-Hanns. Rather, it exercises a broad general discretion, and in the exercise of that broad general discretion may have regard to the Brodie-Hanns principles.
  5. There is a further reason that the Brodie-Hanns principle, that is that action outside of the FW Act needs to be shown in relation to contesting of the dismissal, ought not be applied. That is because, when the principles in Brodie-Hanns were established, the legislative scheme was quite different. In Brodie-Hanns s.170EA of the then Industrial Relations Act 1988 (Cth)[73] was under consideration. That section provided as follows:
  6. It is also relevant to note sections 170EB, 170EC and 170ED of the IR Act, which provided as follows:
  7. The effect of the above provisions was to provide that an application for unlawful termination was made, or could be made, directly to the IR Court, which was able to decline jurisdiction if an adequate alternative remedy otherwise existed. Furthermore, the role of the AIRC was to conciliate on a referral of the matter from the IR Court, after the application had first been made to the IR Court.
  8. It was therefore possible under the IR Act provisions, which existed at the time of Brodie-Hanns, for an employee whose employment had been terminated to apply directly to the IR Court, which then exercised the industrial law jurisdiction of the federal courts now exercised concurrently by the Federal Court and this Court.[74] Therefore, it may well have been relevant for the IR Court to consider what steps an employee who had been terminated had taken otherwise than under the IR Act before applying to the IR Court out of time. Brodie-Hanns, is an example of this: the employee concerned had made a prior application to the then Employer Relations Commission of Victoria[75] which had found that the provisions of the relevant Victorian legislation operated so as to prevent an application being made by the employee concerned out of time under that Victorian legislation. Following the ERVC’s decision that the application to it was out of time, the applicant applied to the IR Court. She was, by that time, almost six months out of time to make the application which was required to be made within 14 days of receipt of the written notice of termination of employment. The IR Court refused the application for an extension of time.
  9. The Brodie-Hanns principles were therefore decided in relation to quite different legislative provisions, providing for a quite different legislative mechanism, in bringing an application in relation to unlawful termination before the IR Court. The current, and different, legislative regime means that Brodie-Hanns is clearly distinguishable on this point. In the circumstances, this Court considers it appropriate to have regard to the fact that the Union made prompt application to FWA for institution of the dispute resolution mechanisms under the FW Act in relation to alleged unlawful termination, prior to making the application to this Court once that process had been certified by FWA as having been, or likely to be, unsuccessful.
  10. In the Court’s view it is important to have regard to the question of whether or not action was taken by the Union to otherwise contest the dismissal of Ms Jones. It is clear that action was taken by the Union by reason of the application made to FWA under s.365 of the FW Act well within the 60 day time limit provided for by s.366(1)(a) of the FW Act. The Union has utilised the statutory mechanism established under the FW Act to contest Ms Jones’ dismissal. That is enough in the Court’s view to show that it has taken action otherwise to contest Ms Jones’ dismissal.
  11. Together with the issues of prejudice and fairness which are discussed below, these factors support the grant of an extension of time on the basis of representative error.

Prejudice

  1. The Union submits that the application was made to this Court four days late in circumstances where School Bus Logistics was aware that the termination of Ms Jones’ employment was being contested. The Union says that School Bus Logistics has not suffered any prejudice as a result of this small delay, and in the circumstances it would suffer no prejudice if an extension of time was granted.
  2. School Bus Logistics submits that:
    1. the nature of the remedy sought is based upon and calculated by reference to formulas relating to the effluxion of time, and therefore all procedural and process irregularities, amendments and interim applications which further delay the ultimate disposal of the matter are prejudicial;
    2. further to this the officers of School Bus Logistics reside in Geraldton in Western Australia, a distance of approximately 400 kilometres from Perth, and the matter will of necessity require several trips to Perth and the incurring of considerable travelling expenses; and
    1. further to this the Union has avoided the real reason for the termination and as such School Bus Logistics is prejudiced in answering the Union’s allegations.
  3. The argument that the further delay caused by the necessity for the interlocutory proceedings constitutes a prejudice is a very technical one, particularly when viewed against the realities of the circumstances. Those circumstances are that:
    1. the delay is a very short one of just four days;
    2. School Bus Logistics has filed the Response, and Ms Hart’s Affidavit; and
    1. the Response and Ms Hart’s Affidavit do not object to the Application being filed out of time, or take any objection to the naming of “School Bus Contractors Pty Ltd” as the respondent.
  4. School Bus Logistics has acted, initially, in this matter, in response to the Application, as if there were no delay and no problem with the naming of “School Bus Contractors” as the respondent. It is clear from the Response that School Bus Logistics did not take the view, nor did it have an expectation, that the Union had forgone any rights as a consequence of the failure to file the Application on time. It is also relevant in determining whether or not rights have been forgone to note that the matter had been to a FWA conference, and that the FWA Application was directed to School Bus Logistics, and School Bus Logistics participated in the FWA conference, as a consequence of which the Section 369 Certificate, naming School Bus Logistics as the respondent, issued.
  5. The prejudice said to arise by reason of the requirement to travel to Perth may not be a prejudice at all. Mediation is regularly conducted by this Court’s Registrars by telephone where the parties do not reside in or near Perth. As the Court has previously observed:
  6. Furthermore, given the location of the parties, there is no reason why the matter cannot be heard in Dalwallinu (which is where Ms Jones worked) or Geraldton. To do so would be entirely consistent with:
    1. section 52(1) of the FM Act which provides that the Court “may sit at any place in Australia”; and
    2. the Commonwealth Parliament’s intent in establishing the Federal Magistrates Court and providing for Federal Magistrates to “... be able to travel to hear cases in centres other than those in which Federal Magistrates are permanently based, and will have the ability to sit anywhere in Australia. This need not necessarily be in a formal courtroom. ... the Government is keen to ensure that ordinary Australians are provided with suitable access to the justice system according to needs and within their means.”[77]
  7. The argument that the Union has avoided the real reason for termination and as a consequence School Bus Logistics is prejudiced in answering the Union’s allegations is not a matter of prejudice at all. The Union has, as it is entitled to do, raised an allegation alleging dismissal of an employee in contravention of a general protection, namely dismissal for temporary absence because of illness or injury.[78] If the Union has avoided the real reason for termination then that is a matter which a respondent must assert in response.[79] And, as the grounds of opposition make clear, School Bus Logistics (which filed the Response) have done so in ground 5, which bears repeating:

What is asserted as prejudice is in fact a matter which has already been properly responded to, and is also part of the ultimate issue to be determined. It is not a matter of prejudice, but a matter for the Court to decide.

  1. Because of the shortness of the delay in this case it is not a case where evidence will be lost or memory will deteriorate to an extent which will prejudice a fair trial.[80]
  2. There is no, or no sufficient, prejudice manifested by the circumstances set out above to warrant refusing an extension of time to the Union.

Merits of the application

  1. The Union submitted that:
    1. a key document is the Medical Certificate, which states that Ms Jones was unfit for work between 6 and 13 August 2010, and therefore she was fit to return to her duties with School Bus Logistics on the next working day, namely 16 August 2010, but, on that day School Bus Logistics terminated Ms Jones’ employment;
    2. School Bus Logistics appears to suggest that the reason for terminating Ms Jones’ employment related to its “duty of care”, however:
      1. that reason is not necessarily consistent with the medical certificate which Ms Jones had provided to School Bus Logistics, which stated that she was fit to return to work on 16 August 2010;
      2. the opinion that School Bus Logistics allegedly formed regarding Ms Jones’ alleged unfitness to work as a school bus driver is not supported by any medical evidence; and
      3. there is no evidence that the directors or managers of School Bus Logistics are medically qualified, or that they have some other qualifications which qualify them to make an assessment regarding Mr Jones’ physical and/or mental capacity to undertake the work of a school bus driver; and
    1. the FW Act imposes an onus on School Bus Logistics to establish that the termination of Ms Jones’ employment was not for a proscribed reason;[81] and
      1. the evidence in this case clearly shows that Ms Jones’ employment was terminated immediately following a period of temporary absence from work due to illness;
      2. the onus is therefore on School Bus Logistics to show that Ms Jones’ temporary absence from work was not the reason for her dismissal; and
      3. although the issue can only be determined after a hearing of all of the evidence, on the basis of the material that is before the Court, the Union submits that there is merit in the application.
  2. School Bus Logistics submits that:
    1. the evidence discloses no evidence that Ms Jones was terminated because she was temporarily absent from the workplace because of illness or injury;
    2. the evidence supports a different basis for the termination of Ms Jones’ employment, namely:
      1. School Bus Logistics’ contract with the Public Transport Authority which requires School Bus Logistics to perform the school bus service safely, so as to ensure the safety of the passengers, employees and the general public, and which entitles the Public Transport Authority to direct School Bus Logistics to remove a driver who is a risk to the safety of the students, employees of School Bus Logistics or any other person;[82]
      2. Ms Hart’s view that it would have been “grossly negligent” to allow Ms Jones to again drive a school bus;[83]
      3. Ms Hart’s view, formed together with Mr Hart, that there was an “imminent risk to the school children who were passengers” on the school bus driven by Ms Jones;[84] and
      4. that Ms Jones had herself stated that her termination related to her unfitness for work, not her temporary absence from work because of illness or injury.[85]
    1. the real question is one of vicarious liability and Ms Jones’ fitness and capacity to carry out the work of a school bus driver, which is a complex issue which would potentially require specialist evidence and the disclosure of Ms Jones’ private and confidential medical records and information; and
    1. the Union has sought to bring the Application under s.352 of the FW Act so as to avoid such questions and issues.
  3. There is evidence that Ms Jones was terminated by School Bus Logistics on a day on which she was fit for work, but which immediately followed a period of 5 days sick leave. It was a period of sick leave supported by a medical certificate which indicated that Ms Jones was temporarily absent from, or unfit for, work for the 5 days because of illness or injury. Further, it can be readily inferred that underlying the view formed by Ms Hart about Ms Jones’ ability to continue working was the fact that Ms Jones had some kind of illness or injury, and, it might be argued, the same illness or injury that had resulted in her temporary absence. For the purposes of an assessment of merit on an extension of time application, which must necessarily be “rough and ready”,[86] that is sufficient to enable the Union to argue that there is merit in the argument that the termination was because Ms Jones was temporarily absent from work because of illness or injury, particularly bearing in mind the provisions of s.361 of the FW Act which impose an onus on School Bus Logistics to establish that the termination of Ms Jones was not for a proscribed reason,[87] and in relation to which the affidavit evidence filed by School Bus Logistics raises an argument that the termination was not for a proscribed reason. However, the net effect of the argument is such that it indicates an arguable case on the merits, and provides no proper basis not to allow an extension of time for filing the Application.
  4. The assertion that Ms Jones has herself stated that her termination related to her unfitness for work and not a temporary absence from work because of illness or injury overstates the effect of the relevant paragraphs of Ms Jones’ affidavit. All that she does is set out the relevant factual scenario. There is no admission or statement by her that constitutes an admission that the reason for her termination was as asserted by School Bus Logistics. The fact that the matter may involve questions of School Bus Logistics’ vicarious liability, and assessment of medical evidence and disclosure of Ms Jones’ private and confidential medical records and information, are matters which are routinely dealt with by this Court in applications of this type.[88]
  5. For reasons set out above,[89] the suggestion that the Union has improperly brought this application under the provisions of s.352 of the FW Act cannot be sustained, because, as the Response demonstrates, responsive matters might be, and are quite properly, put in issue.
  6. The Court has therefore concluded that there is sufficient merit in the Application to justify the grant of an extension of time in which to file the Application.

Fairness

  1. The Union submits that as a matter of fairness Ms Jones should not be deprived of an opportunity to pursue her claim due to an error on the part of her representative.[90]
  2. In circumstances where:
    1. the delay is very short;
    2. the delay arises from representative error;
    1. the delay has not caused any particular prejudice, or any prejudice which cannot be overcome; and
    1. the delay will not cause any unfairness at hearing or prejudice a fair hearing,

the Court has concluded that considerations of fairness should not preclude the Union from pursuing the Application by reason of the delay in it being filed.

Extension of time – consideration – summary

  1. In summary, the Court considers that:
    1. oversight is the explanation for the delay in this case, and the delay arises from a case of representative error, in respect of which it would be equitable to extend time so as not to disadvantage Ms Jones as a consequence of her representative’s error;
    2. there has been action taken otherwise to contest the dismissal by reason of the FWA application, and it is manifest that the Union seeks to challenge the termination of Ms Jones’ employment;
    1. there is no prejudice to School Bus Logistics if an extension of time is allowed because School Bus Logistics has acted as if there was no delay and no problem with the application being out of time or being in the name of the “wrong” respondent;
    1. the Application is one, which at least on its face is arguable, and not so devoid of merit as to warrant a refusal to extend time; and
    2. the delay is short,

and, therefore, the Court is of the view that there ought to be, and it would be fair for there to be, an extension of time in which to file the Application, and that that extension of time ought to be to the time of actual filing on 9 November 2010.

Amendment of name of respondent

Legislation

  1. Rule 7.01 of the FMC Rules provides the Court with power to allow an amendment to correct the name of party. Rule 7.03 of the FMC Rules deals with amendment after the expiry of a limitation period, and is in the following terms:

Submissions

  1. The Union submitted that:
    1. rule 7.03 of the FMC Rules is in similar terms to O.13 r.2 of the Federal Court Rules;[91] which relevantly provides as follows:
      • (1) Subject to the following provisions of this rule, the Court may, at any stage of any proceeding, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such manner as the Court thinks fit.

(3) Where an application to the Court for leave to make the amendment mentioned in subrules (4), (5) or (6) or paragraph (7)(a) is made after any relevant period of limitation current at the date of commencement of the proceeding has expired, the Court may, nevertheless, grant such leave in the circumstances mentioned in that subrule if it thinks it is just to do so.

(4) Where there has been a mistake in the name or identity of a party, an amendment to correct the name of the party may be made notwithstanding that the effect of the amendment is to substitute another person as a party.
  1. the FW Act expressly makes provision for an extension of time for bringing proceedings,[92] and this Court therefore has the power to amend the application to correct the name of a party notwithstanding that the application has been filed out of time;[93]
  1. in Yong v Minister for Immigration and Multicultural Affairs[94] the Full Court of the Federal Court held that the failure by the applicant to join the Minister as a party to the proceeding did not deprive the Court of jurisdiction. The Full Court made the following observations concerning amendment:
  1. the Victorian counterpart of O.13 r.2 was considered by the High Court of Australia in Bridge Shipping Pty Limited v Grand Shipping SA[96] where an application to amend the name of a party was sought after the expiry of the relevant limitation period;
  2. the application in Bridge Shipping failed as there had not been found to be a mistake by the defendant “in the name of a party”, the High Court concluding that the defendant intended to sue the owner of the vessel believing that its right of action lay against the owner;
  3. the High Court in Bridge Shipping considered the requirement that there be “a mistake in the name of a party”:
  4. this is a situation where there was a genuine mistake due to a typographical error because Mr Dalliston, rushing to prepare the Application as he was aware that it was out of time, and that it had to be filed in the Court as soon as possible, mistakenly typed the name of the respondent as “School Bus Contractors Pty Ltd” when he intended to name the respondent in the application as “School Bus Logistics Pty Ltd”;
  5. there is little doubt that at all times the applicant intended to join “School Bus Logistics Pty Ltd” as the respondent in the Application. The Application was served on School Bus Logistics, and School Bus Logistics filed a reply; and
  6. this is a case where there was a genuine mistake as to the name of a party within the principles set out in Bridge Shipping, and it is appropriate that in all of the circumstances of this case the Court exercises its power under r.7.01 to correct the name of the respondent.

Consideration – amendment to name

  1. In this case, it is clear that there was a simple clerical error by Mr Dalliston in relation to the name of the respondent. He typed “Contractors” when he should have typed “Logistics”. It was a genuine mistake. Having regard to the previous FWA proceedings, and the conduct of School Bus Logistics subsequent to the application in the wrong name being served on them, that is, their conduct in acting as if they were the respondent properly named, School Bus Logistics were not misled by the mistake in the name. In the circumstances this is a case of a type in which it is appropriate to give effect to the beneficial operation of r.7.03 of the FMC Rules and amend the name of the respondent. There will be an order accordingly.

Conclusion

  1. For the reasons set out above the Court concludes that:
    1. the time for filing of the Application should be extended under s.371(2) of the FW Act to 9 November 2010; and;
    2. the name of the respondent in the Application should be amended by deleting the word “Contractors” and inserting the word “Logistics”.

There will be orders accordingly.

  1. Bearing in mind the provisions of s.570 of the FW Act, the Court will only hear the parties as to costs if a party makes a costs application within 35 days.[98] Otherwise, the matter is adjourned to a directions hearing at 9.15am on 11 February 2011.

I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Lucev FM


Date: 4 February 2011

[1] “Union”.
[2] “Application”.
[3] A “general protections court application” is defined in s.370(2) of the Fair Work Act 2009 (Cth) (“FW Act”) as an “application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.”
[4] “Section 369 Certificate”.
[5] “FWA”.
[6] Rentuza v Westside Auto Wholesale [2009] FMCA 1022; (2009) 236 FLR 231 at 237 per Lucev FM; [2009] FMCA 1022 at paras.21-23 per Lucev FM (a case in respect of the requirement under s.779 of the FW Act for a similar certificate issued under s.777 of the FW Act); Hughes v Mainrange Corporation Pty Ltd (No. 2) [2009] FMCA 1044; (2009) 190 IR 351 at 354 per Lucev FM; [2009] FMCA 1044 at para.14 per Lucev FM.
[7] “Mr Dalliston’s First Affidavit”.
[8] Mr Dalliston’s First Affidavit, para.1
[9] Mr Dalliston’s First Affidavit, paras.2 and 3.
[10] Mr Dalliston’s First Affidavit, paras.4 and 5.
[11] “Response”.
[12] “FW Regulations”.
[13] Under s.12 of the FW Act “serious misconduct” is defined as having “the meaning prescribed by the regulations”, those regulations being the FW Regulations.
[14] “Ms Hart’s Affidavit”.
[15] “Mr Dalliston’s Second Affidavit”.
[16] “Fair Work Application”.
[17] Mr Dalliston’s Second Affidavit, para.2.
[18] Mr Dalliston’s Second Affidavit, para.2.
[19] Mr Dalliston’s Second Affidavit, Annexure 1.
[20] Mr Dalliston’s Second Affidavit, para.3.
[21] Mr Dalliston’s Second Affidavit, para.4.
[22] “School Bus Logistics”; Affidavit of Kathleen Jones, sworn 9 December 2010, para.2 (“Ms Jones’ Affidavit”), which refers to Ms Jones being employed “until 16 August 2020”, but the reference to 2020 is obviously a typographical error and intended to be “2010”. See also Ms Hart’s Affidavit, paras.2, 10, 19 and 20.
[23] Ms Jones’ Affidavit, paras.17 and 19.
[24] “Medical Certificate”.
[25] Ms Hart’s Affidavit, para.14 and Annexure 3; Ms Jones’ Affidavit, para.17.
[26] Ms Jones’ Affidavit, para.19.
[27] Ms Hart’s Affidavit, para.20; Ms Jones’ Affidavit, para.19.
[28] Mr Dalliston’s Second Affidavit, para.2.
[29] Section 369 Certificate.
[30] “Section 371 Note”.
[31] (1995) 67 IR 298 (“Brodie-Hanns”).
[32] “IR Court”.
[33] Brodie-Hanns at 299 per Marshall J.
[34] Brodie-Hanns at 299-300 per Marshall J.
[35] Brodie Hanns at 298 per Marshall J.
[36] Transport Workers Union of Australia v National Dairies Limited (No 2) (1994) 57 IR 186; Turner v K&J Trucks Coffs Harbour Pty Limited (1995) 61 IR 412.
[37] [1984] FCA 176; (1984) 3 FCR 344 at 348-349 per Wilcox J (“Hunter Valley Developments”).
[38] DC Pearce and RS Geddes, Statutory Interpretation in Australia (6th Edn) (Chatswood: LexisNexis Butterworths, 2006) pages 161-162 (“Pearce – Statutory Interpretation”); P St J Langan, Maxwell on The Intepretation of Statutes (12th Edn) (London: Sweet and Maxwell, 1969) pages 9-10 (“Maxwell on Statutes”); Bradley v The Commonwealth [1973] HCA 34; (1973) 128 CLR 557 at 577 per Barwick CJ and Gibbs J; One.Tel Ltd (in liq) v Rich & Ors [2005] NSWSC 226; (2005) 190 FLR 443 at 458-459 per Bergin J; [2005] NSWSC 226 at paras.52-53 per Bergin J (“Rich”); Acts Interpretation Act 1901 (Cth), s.13(3) (“Acts Interpretation Act”).
[39] Re Woking Urban Council (Basingstoke Canal) Act 1911 [1914] 1 Ch 300 at 322 per Phillimore LJ.
[40] Director of Public Prosecutions v Schildkamp [1971] AC 1 at 10 per Lord Reid.
[41] Acts Interpretation Act, s.15AB; Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722 at 745 per Lindgren J; [2004] FCA 51 at para.98 per Lindgren J; Evans v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2003] FCAFC 276; (2003) 135 FCR 306 at 320 per Kenny J; [2003] FCAFC 276 at para.45 per Kenny J; Rich FLR at 458-459 per Bergin J; NSWSC at paras.52-53 per Bergin J.
[42] “Corporations Act”.
[43] Rich FLR at 458 per Bergin J; NSWSC at paras.50-51 per Bergin J.
[44] Rich FLR at 459-460 per Bergin J; NSWSC at paras.53-54 per Bergin J.
[45] “WR Act”.
[46] “AIRC”.
[47] “Termination of Employment Bill 2000”.
[48] Explanatory Memorandum to Termination of Employment Bill 2000, paras.18 (s.170CE(8A)) and 79 (s.170CP(7)).
[49] Brodie-Hanns at 300 per Marshall J.
[50] “FW (Transitional Provisions) Act”,
[51] See the extracts from Rich cited above at paras.24 and 25.
[52] See the quote from Rich in para.25 above.
[53] Section 773 of the FW Act is in essentially the same terms.
[54] “FW (Registered Organisations) Act”.
[55] FW (Registered Organisations) Act, s.353A(2)(a).
[56] FW (Registered Organisations) Act, s.353A(3)(a).
[57] See paras.59-63 below.

[58] Judiciary Act 1903 (Cth), ss.55A, 55B, 55C; Federal Magistrates Act, 1999 (Cth), s.44 (“FM Act”); FW (Registered Organisations) Act (Cth), s.353A.
[59] See, for example, Transport Workers Union of Australia v Veolia Environmental Services (Australia) Pty Ltd T/A Veolia Environmental Services [2010] FWA 9622 (“Veolia Environmental Services”) where a FWA Commissioner applied traditional principles with respect to representative error in relation to the conduct of a TWU official in a case where the TWU was the applicant.
[60] See, for example Cooper v Keppel Community Care Association Inc [2010] FWA 7680 (“Keppel Community Care”).
[61] (1997) 74 IR 413 (“Clark”).
[62] Clark at 418-420 per Ross VP, Drake DP and Deegan C.
[63] Christie v Harvey & Hayward (1900) 2 WALR 146 at 150 per Hensman J.
[64] Hunter Valley Developments at 351 per Wilcox J.
[65] (2010) 173 ACTR 66; [2010] ACTSC 21 (“Doyle”).
[66] Doyle ACTR at 74-75 per Refshauge J; ACTSC at para.53 per Refshauge J.
[67] Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601 per Lord Denning MR, and see the Australian cases cited in Doyle at ACTR 75; ACTSC at paras.54-60 per Refshauge J.
[68] Stephens v Australian Postal Corporation [2010] FMCA 1012 at para.21 per Smith FM (“Stephens”), citing Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441 (“A’Hearn”) and Hunter Valley Developments.
[69] See Stephens at paras.12, 21 and 23 per Smith FM (citing both A’Hearn at 443 per Black CJ, Gray and Burchett JJ, and Hunter Valley Developments at 351 per Wilcox J); Tandoegoak & Anor v Margeurite Gerard Pty Ltd [2007] FMCA 621 at paras.21-23, 26 and 28-29 and 40(iii) per O’Sullivan FM (“Tandoegoak”); Clark at 418-420 per Ross VP, Drake DP and Deegan C.
[70] A’Hearn; Crompton v Buchanan & Ors [2010] QCA 250; Repco Corporation Ltd v Scardamaglia [1996] VicRp 2; [1996] 1 VR 7 (“Scardamaglia”).
[71] Re Insurance Australia Group Ltd (2003) 128 FCR 581; [2003] FCA 581.
[72] See paras.31 and 36-37 above.
[73] “IR Act”.
[74] A briefly sketched historical background to the industrial law jurisdiction of federal courts appears in Welsh v Allblend Holdings (No 2) [2010] FMCA 377; (2010) 239 FLR 234 at 239-240 per Lucev FM; [2010] FMCA 377 at paras.11-18 per Lucev FM.
[75] “ERCV”.
[76] Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Ltd & Ors [2010] FMCA 932 at para.32(b) per Lucev FM, citing Sherwood Overseas Co Pty Ltd v Jaymac International Pty Ltd [2008] FMCA 495 at para.32 per Lucev FM and Dorrian v Rushlyn Pty Ltd [2010] FMCA 787 where Lindsay FM ordered that the respondents were at liberty to attend mediation by telephone.
[77] Hon DR Williams QC, Second Reading Speech, Federal Magistrates Bill 1999 (Cth).
[78] FW Act, s.352.
[79] FW Act, s.361; Hayward v Rohd Four Pty Ltd [2008] FMCA 1490; (2008) 177 IR 212 at 218-221 and 223-224 per Wilson FM; [2008] FMCA 1490 at paras.11-21 and 34 per Wilson FM (“Rohd Four”); Buckingham v KSN Engineering Pty Ltd [2008] FMCA 546; (2008) 177 IR 427 at 450 per Lucev FM; [2008] FMCA 546 at para.93 per Lucev FM (“KSN Engineering”); Federal Magistrates Court Rules 2001 (Cth), r.4.04 (“FMC Rules”).
[80] Scardamaglia at 14 per Smith J; Doyle ACTR at 77 per Refshauge J; ACTSC at para.77 per Refshauge J.
[81] FW Act, s.361; Rohd Four IR at 218-221 and 223-224 per Wilson FM; FMCA at paras.11-21 and 34 per Wilson FM; KSN Engineering IR at 450 per Lucev FM; FMCA at para.93 per Lucev FM.
[82] Ms Hart’s Affidavit, paras.16-17.
[83] Ms Hart’s Affidavit, para.18.
[84] Mr Hart’s Affidavit, para.19.
[85] Ms Jones’ Affidavit, paras.18-20.
[86] Jackamarra v Krakouer & Anor [1998] HCA 27; (1998) 195 CLR 516 at 522 per Brennan CJ and McHugh J; [1998] HCA 27 at para.9 per Brennan CJ and McHugh J.
[87] See the authorities cited at fn.79 above.
[88] See for example Gera v Commonwealth Bank of Australia Ltd (2010) 62 AILR 101-209; [2010] FMCA 205 (allegation of sexual misconduct by a bank management employee in respect of an employee being mentored by him); Rogers v Millennium Inorganic Chemicals Ltd (2009) 229 FLR 198; [2009] FMCA 1 (alleged termination because of temporary absence from work because of illness or injury as a result of a motorcycle accident suffered some years previously).
[89] See para.85 above.
[90] Citing Tandoegoak.
[91] “Federal Court Rules”.
[92] FW Act, s.371(2).
[93] Smithkline Beecham (Australia) Pty Limited v Minister for Family Services & Anor [1993] FCA 523; (1993) 45 FCR 587 at 598 per Beazley J (“Smithkline Beecham”). An appeal from Smithkline Beecham was upheld in Alphafarm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd & Ors [1994] FCA 996; (1994) 49 FCR 250, but the appeal was upheld on ground unrelated to this procedural point. [Further check on O.13, r2.]
[94] (1997) 75 FCR 155 (“Yong”).
[95] Yong at 169 per Beaumont, Burchett and Goldberg JJ.
[96] (1991) 173 CLR 231(“Bridge Shipping”).
[97] Bridge Shipping CLR at 260-261 per McHugh J (with whom Brennan and Deane JJ agreed).
[98] FMC Rules, r.21.02(1)(c).

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