FEDERAL COURT OF AUSTRALIA Australian Rail, Tram and Bus Industry Union v Metro Trains Melbourne Pty Ltd (No 2) [2020] FCAFC 106 Appeal from: Metro Trains Melbourne Pty Ltd v Australian Rail, Tram and Bus Industry Union (No 2) [2019] FCA 2034 File number: VID 1382 of 2019 Judges: FLICK, BROMBERG AND ANASTASSIOU JJ Date of judgment: 12 June 2020 Legislation: Fair Work Act 2009 (Cth), s 413(5) Federal Court of Australia Act 1976 (Cth), s 28(1) Date of hearing: Determined on the papers Registry: Victoria Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: No Catchwords Number of paragraphs: 7 Counsel for the Appellant: Mr H Borenstein QC with Mr Y B Bakri and Mr C J Tran Solicitor for the Appellant: Gordon Legal Counsel for the Respondent: Mr F Parry QC with Mr A R M Pollock Solicitor for the Respondent: Herbert Smith Freehills ORDERS VID 1382 of 2019 BETWEEN: AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION Appellant AND: METRO TRAINS MELBOURNE PTY LTD (ACN 136 429 948) Respondent JUDGES: FLICK, BROMBERG AND ANASTASSIOU JJ DATE OF ORDER: 12 JUNE 2020 THE COURT ORDERS THAT: 1. The proceeding be remitted to the primary judge for further hearing and determination. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT THE COURT: 1 These reasons supplement those published on 18 May 2020 as Australian Rail, Tram and Bus Industry Union v Metro Trains Melbourne Pty Ltd [2020] FCAFC 81. The Court's earlier reasons set out the relevant background facts and the issues in contest on the appeal. Those matters need not here be repeated as these reasons should be read with the Court's earlier reasons. The abbreviations there made are here adopted. 2 On 18 May 2020, the Court made the following orders: 1. The Appellant is granted leave to appeal. 2. The appeal is allowed. 3. The Respondent's Notice of Contention is dismissed. 4. The order of the primary judge of 6 December 2019 is set aside. 5. Within seven days herewith, the parties file a minute of proposed further orders for the disposition of the appeal and, should the orders proposed not be agreed, short submissions of no more than two pages addressing the further disposition of the appeal. 3 Order 5 was directed to an issue expressed in the reasons of Bromberg J at [79] as follows: [79] The parties submitted that if the RTBU succeeded, the RTBU's application should be remitted to the primary judge. It was agreed that there are factual issues going to the further exercise of the Court's discretion to make the orders sought by the RTBU – now relevantly an order to set aside order 3 of the orders of Snaden J – which the primary judge is best placed to deal with. It is not clear what factual matters the parties have in mind and it is curious, especially given the obvious expedition which attends this proceeding, that any matter which Metro may now want the primary judge to revisit was not the subject of Metro's Notice of Contention. In the interests of efficiency and expedition I would invite the parties to consider whether they wish to maintain their position that the matter be remitted to the primary judge and direct the parties to provide (within seven days) a minute of proposed further orders for the disposition of the appeal together with short submissions should there be no agreement as to the further orders which should be made. I would propose that any outstanding issues be then dealt with on the papers. 4 Those observations were made upon a premise which the submissions since made by the parties have shown to be no longer applicable. At the time the appeal was heard, the parties were bargaining for a new enterprise agreement. At that time, the imperative behind the RTBU's application that the orders of Snaden J be revoked nunc pro tunc was that, by reason of its non-compliance with order 3 of those orders and the application of s 413(5) of the FW Act, absent the relief it sought being granted, the RTBU was unable to organise the taking of protected industrial action in furtherance of the making of a new enterprise agreement. It was that incapacity in the context of extant bargaining for a new enterprise agreement which was at the heart of the "obvious expedition" which attended the relief sought by the RTBU. 5 That need for expedition has now evaporated. The parties have now informed the Court that a new enterprise agreement has been made which came into effect on 28 May 2020. 6 The imperative which drove the RTBU's application no longer exists. The RTBU now seeks to rely on other bases in support of the relief it seeks in circumstances where Metro contends that the relief sought by the RTBU now lacks any utility. 7 We are not persuaded that in those circumstances, and in the exercise of the Court's discretion under s 28(1) of the Federal Court of Australia Act 1976 (Cth), the preferable course is for the Full Court to redetermine the RTBU's application for relief. The preferable and more expedient course is for the proceeding to be remitted to the primary judge for redetermination. We will make an order to that effect. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Flick, Bromberg and Anastassiou Associate: Dated: 12 June 2020