FEDERAL COURT OF AUSTRALIA Aerocare Flight Support Pty Ltd v Australian Municipal, Administrative, Clerical and Services Union [2018] FCA 128 File number(s): NSD 1814 of 2017 Judge(s): JAGOT J Date of judgment: 23 February 2018 Catchwords: PRACTICE AND PROCEDURE – interlocutory application for dismissal, permanent stay or stay pending outcome of related Fair Work Commission proceedings – no abuse of process – interlocutory application dismissed Legislation: Fair Work Act 2009 (Cth) ss 57, 186, 193, 225, 226 Federal Court of Australia Act 1976 (Cth) s 21 Cases cited: Coffey v Secretary, Department of Social Security [1999] FCA 375; (1999) 86 FCR 434 Miller v University of New South Wales [2003] FCAFC 180; (2003) 132 FCR 147 Sea Culture International Pty Ltd v Scoles [1991] FCA 523; (1991) 32 FCR 275 Stoops v Lefas [2016] VSC 350 Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union [2015] FCA 1033 Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 Date of hearing: 16 February 2018 Registry: New South Wales Division: Fair Work Division National Practice Area: Employment and Industrial Relations Category: Catchwords Number of paragraphs: 32 Counsel for the Applicant: F Parry QC and M J Follett Solicitor for the Applicant: Johnson Winter & Slattery Counsel for the Respondents: M Gibian Solicitor for the First Respondent: J Cooney of the Australian Municipal, Administrative, Clerical and Services Union Solicitor for the Second Respondent: W Carr of the Transport Workers' Union of Australia ORDERS NSD 1814 of 2017 BETWEEN: AEROCARE FLIGHT SUPPORT PTY LTD Applicant AND: AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION First Respondent TRANSPORT WORKERS' UNION OF AUSTRALIA Second Respondent JUDGE: JAGOT J DATE OF ORDER: 23 February 2018 THE COURT ORDERS THAT: 1. The interlocutory applications filed on 16 November 2017 be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT JAGOT J: The interlocutory application 1 These reasons for judgment explain why this proceeding does not constitute an abuse of process and should proceed in the ordinary course, rather than being stayed until the determination of other proceedings in the Fair Work Commission (or FWC). 2 On 12 October 2017 the applicant, referred to as Aerocare, filed an originating application seeking relief in the form of two declarations as follows: 1. A declaration pursuant to section 21 of the Federal Court of Australia Act 1976 (Cth) to the effect that a "split shift" as presently utilised by the applicant for its part-time Permanent Secure Employees, does not on a proper construction of clause 28.3(d) of the Airline Operations - Ground Staff Award 2010, amount to work on more than one shift in a 24 hour period. 2. A declaration pursuant to section 21 of the Federal Court of Australia Act 1976 (Cth) to the effect that the second component of a "split shift" as presently utilised by the applicant for its part-time Permanent Secure Employees, does not on a proper construction of clauses 28 and 30 of the Airline Operations - Ground Staff Award 2010: (a) amount to overtime or recall to duty; or (b) attract the payment of overtime penalties under that Award. 3 The respondents to the proceeding are the Australian Municipal, Administrative, Clerical and Services Union and the Transport Workers' Union of Australia or TWU (together, the Unions). 4 On 16 November 2017 the Unions filed two corresponding interlocutory applications seeking orders for the dismissal or permanent stay of the proceeding or, in the alternative, a stay pending the determination of two proceedings in the FWC, referred to as C2017/5221 and C2017/5258. The award and agreements 5 The Airline Operations – Ground Staff Award 2010 (the Award) commenced on 1 January 2010 and remains in operation. 6 Clause 28.3(d) of the Award provides that: Except at the regular change-over of shifts, an employee must not be required to work more than one shift in each 24 hours. 7 Clause 30 of the Award sets out special provisions for shift-workers. 8 In 2012 the FWC approved a single enterprise agreement under s 186 of the Fair Work Act 2009 (Cth), being the Aero-Care Collective Agreement 2012 (the 2012 Agreement). The 2012 Agreement applies to Aerocare's employees. As a result, s 57 of the Fair Work Act is engaged, which provides that: (1) A modern award does not apply to an employee in relation to particular employment at a time when an enterprise agreement applies to the employee in relation to that employment. (2) If a modern award does not apply to an employee in relation to particular employment because of subsection (1), the award does not apply to an employer, or an employee organisation, in relation to the employee. 9 In deciding to approve the 2012 Agreement the FWC had to be satisfied about a number of matters including, by s 186(2)(d), that the agreement passed the "better off overall test". By s 193(1): An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee. 10 In a decision published on 12 February 2013 ([2013] FWCA 965), the FWC was satisfied that all requirements for the approval of the agreement, including the need to pass the better off overall test, had been met, so the 2012 Agreement was approved. 11 The 2012 Agreement contains clause 9.1, in these terms: Employees may be engaged in Casual, PSE or FTE categories of employment and work may be performed in one or more shifts per day. 12 By 2017 Aerocare had negotiated another agreement with a number of its employees, called the Aerocare Collective Agreement 2017 (the 2017 Agreement). Aerocare sought the FWC's approval of the 2017 Agreement. The FWC refused to approve the agreement in reasons given on 31 August 2017 ([2017] FWC 4311). The FWC was not satisfied that the agreement met two requirements needed for approval, being the requirement that the employees covered by the agreement be "fairly chosen" (s 186(3)) and that the agreement passed the better off overall test. In reaching the latter conclusion the FWC construed the Award as requiring that "the ordinary hours of work for any employee are to be worked continuously" (at [158]). As the 2017 Agreement allowed for ordinary hours of work not to be continuous and did not provide other benefits, the FWC was not satisfied that the agreement passed the better off overall test (at [162]). 13 On 20 September 2017 Aerocare appealed against this decision to the Full Bench of the FWC. The appeal is matter C2017/5221 as referred to in the Unions' interlocutory applications. The appeal grounds included that the FWC, in refusing to approve the 2017 Agreement, had misconstrued the Award in concluding that it provided that the ordinary hours of work of any employee are to be worked continuously and that the second part of a split shift would attract overtime rates. 14 Also on 20 September 2017 the TWU applied to terminate the 2012 Agreement under s 225 of the Fair Work Act. The termination proceeding is matter C2017/5258 as referred to in the Unions' interlocutory applications. 15 By s 226 the FWC must terminate the agreement if: (a) the FWC is satisfied that it is not contrary to the public interest to do so; and (b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including: (i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and (ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them. 16 The TWU seeks termination on the grounds that, amongst other things, employees would be better off overall under the Award than the 2012 Agreement including by reference to Aerocare's rostering arrangements. 17 On 27 November 2017 the Full Bench of the FWC dismissed Aerocare's appeal on the ground that the 2017 Agreement did not cover employees fairly chosen as required ([2017] FWCFB 5826). The Full Bench sought further submissions on the better off overall test and, on 4 January 2018, decided to refuse permission to Aerocare to appeal on that ground given the earlier decision that the 2017 Agreement did not satisfy the fairly chosen requirement ([2018] FWCFB 59). Aerocare has appealed to this Court in respect of the Full Bench's decision that the 2017 Agreement did not cover employees fairly chosen as required. 18 On 15 January 2018 Aerocare applied to the FWC to stay or adjourn the termination proceeding in the FWC until determination of this proceeding. As Aerocare put it in its application for a stay or adjournment, this proceeding would provide a binding determination of the "very same issue" as the termination proceeding: the proper construction of the Award in respect of split shifts, which formed a basis for the FWC's refusal to approve the 2017 Agreement. On 15 January 2018 the FWC refused to stay or adjourn the termination proceeding on the basis that it did not consider the proper construction of the Award to be likely to be a central consideration in the termination proceeding ([2018] FWC 295 at [4]). Discussion 19 The reason why the commencement and continuation of this proceeding does not involve any abuse of process may be simply stated. It is that the Unions' focus on the various proceedings involving the "same issue" operates at an inapt level of generality. It may be accepted that in refusing to approve the 2017 Agreement the FWC construed the Award and compared the Award's requirements to both the terms of the 2017 Agreement and Aerocare's rostering practices, leading the FWC to the conclusion that the 2017 Agreement did not pass the better off overall test. It may also be accepted that, whatever its current views, the FWC may be required in the termination proceeding to construe the Award and compare the Award's requirements to the terms of the 2012 Agreement to decide if it is appropriate to terminate the 2012 Agreement having regard to all the circumstances. In this sense, the issues in this proceeding and as determined by or pending before the FWC may be characterised as the "same". 20 This does not mean, however, that Aerocare is seeking to re-litigate an issue which the FWC has already resolved. Nothing in the circumstances of the FWC performing its functions under the FWC Act and this Court performing its functions under Pt III of the Federal Court of Australia Act 1976 (Cth), which concerns the original jurisdiction in this Court, would be "unjustifiably oppressive to a party or would bring the administration of justice into disrepute" (Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 at [25]). This is because the FWC has not resolved the issues which Aerocare raises in this proceeding, as set out in the declarations it seeks. The FWC has merely made findings and reached conclusions which relate to those issues for the purpose of performing its statutory function of deciding whether it must approve or refuse to approve an agreement. Further, for the termination proceeding, the FWC will also make findings and reach conclusions which may relate to those issues for the purpose of performing its statutory function of deciding whether it must terminate an agreement. The FWC has not resolved, and cannot resolve, the rights and obligations of Aerocare and its employees under the Award. 21 The cases on which the Unions relied, which involve decisions of administrative tribunals, are not analogous to the present case. In Sea Culture International Pty Ltd v Scoles [1991] FCA 523; (1991) 32 FCR 275 the alleged abuse of process arose because a party made one allegation in a pleading in this Court and an inconsistent allegation in a pleading before the Western Australian Industrial Relations Commission. While French J (as he then was) accepted that "an attempt to litigate in the court a dispute or issue which has been resolved in earlier litigation in this or another court or tribunal" may give rise to an abuse of process (at 279), the key concept is the resolution of the issue in that other court or tribunal. In the present case, there has been no such resolution. In any event, French J also noted that the different nature of the proceedings before this Court and the Western Australian Industrial Relations Commission meant that the "drastic remedy" of dismissing or staying the proceeding as an abuse of process ought not to succeed (at 280). 22 In Coffey v Secretary, Department of Social Security [1999] FCA 375; (1999) 86 FCR 434, in contrast, the very issue sought to be litigated in this Court had been resolved in earlier proceedings before a tribunal. The respondent had raised a debt against the applicant's unemployment benefits for $3,245. The applicant reviewed that decision before the Social Security Appeals Tribunal. The applicant withdrew that review application and sought review by an authorised officer under the relevant statute. The officer affirmed the decision under review that the debt was owed, a decision later affirmed on further review by the Social Security Appeals Tribunal. In the proceeding before the Court the applicant again disputed the debt. In this context, an abuse of process was found, the Full Court saying at [25]: 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. In the present case the circumstances are these. First, the Parliament has made available a comprehensive and multi-level process for the review of decisions under the Act. Secondly, the appellant has had three reviews under the procedures thus made available. Thirdly, the respondent and his officers have been vexed already by these reviews, especially those before the two Tribunals. In our view, for the Court to allow the appellant to relitigate his claim that the respondent was not entitled to withhold from his benefits the amount of the alleged overpayment, would be to permit its process to be employed in a manner unfair to the respondent. The maintenance of the debt claim is an abuse of process, and should be dismissed. 23 These facts are different from the present case. The tribunal had jurisdiction to determine whether the debt was owed or not. It determined the debt was owed. The applicant then sought to challenge that fact in another proceeding. It should be apparent that Coffey, unlike the present, involved an attempt to re-litigate an issue resolved in earlier proceedings. 24 In Stoops v Lefas [2016] VSC 350 the Victorian Civil and Administrative Tribunal or VCAT, in response to the applicant's various applications, had determined that a restrictive covenant, on its true construction, prevented the erection on the property of a block of flats or apartments. Having failed before VCAT the applicant commenced proceedings in the Supreme Court of Victoria seeking a declaration as to the nature and extent of the covenant. At [69] Cavanough J said: … The fact that the exercise of VCAT's review jurisdiction represents a 'purely administrative task' does not mean that the same may not involve the final determination of an issue for the purposes of the doctrine of abuse of process. 25 Cavanough J continued at [72] in these terms: … in an appropriate case, VCAT has the capacity to make a final determination involving the interpretation of a restrictive covenant. The matter determined by Member Komesaroff in Stoops v Frankston City Council in 2003 was just such a case. 26 Again, the difference from the present case is apparent. 27 The Unions' interlocutory applications are to be resolved recognising that the FWC did not determine or resolve the issues which are the subject of Aerocare's originating application but considered those or similar issues in a particular context and for its particular statutory purposes. The manifest difference in the role of the FWC and of this Court was described in Miller v University of New South Wales [2003] FCAFC 180; (2003) 132 FCR 147 at [17]-[18] and [81]-[84]. Other cases, such as Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union [2015] FCA 1033, recognise that the FWC might be called upon to decide issues for its purposes which are also within the jurisdiction of this Court. In Teys, which involved an application to restrain the FWC from dealing with a dispute by arbitration when a party had filed an originating application for a declaration in this Court, Bromberg J concluded the issue would be best determined in this Court and gave the FWC an opportunity to reconsider its refusal to adjourn the matter before it. In so concluding Bromberg J made this point at [31] which applies in the present case: First, this court's specialist function is the determination of controversies concerning existing rights and liabilities, including under the FW Act. Conversely, that is not the traditional function of the FWC. True it is that the FWC has been given some ability to address rights and liabilities through its capacity as a private arbitrator, but that is not its specialist function. I recognise that the FWC does deal with the interpretation of enterprise agreements and their consistency with provisions of the Act. But, that is different to the final determination of the legal rights of the parties under the FW Act, that being the specialist function of this court. Second, and relatedly, the FWC is an inferior tribunal. It will be assisted by the reasons for judgment of superior courts of record such as this court. 28 In the present case, the FWC did not purport to determine the rights and liabilities of Aerocare and its employees under the Award. Further, the fact the Award does not apply to Aerocare or its employees for so long as the 2012 Agreement remains in force does not mean that the proceeding in this Court has utility only for the purpose of the FWC proceedings. As Aerocare's evidence demonstrated it cannot effectively negotiate with its employees about a further enterprise agreement unless it and its employees know what the Award requires. 29 There is no oppression in the Unions having to deal with this proceeding merely because the FWC resolved not to approve the 2017 Agreement and will resolve whether to terminate the 2012 Agreement. The Unions opposed any adjournment of the termination proceedings and thus, to the extent, there is any overlap of issues, are responsible for that occurring. In any event, the FWC is free to revisit the adjournment application having regard to these reasons for judgment if it considers it appropriate to do so at any time. Nor is there a real risk of the administration of justice being brought into disrepute. This Court alone, and not the FWC, has jurisdiction to determine the proper construction of the Award and whether Aerocare's rostering is permitted under the Award or not, as well as the potential consequences for overtime. The FWC was not purporting to make any such determination in refusing to approve the 2017 Agreement and cannot do so in deciding whether or not to terminate the 2012 Agreement. 30 Accordingly, I consider that Aerocare's originating application does not give rise to any abuse of process. 31 Nor do I consider that Aerocare's originating application should be stayed pending the determination of the other proceedings in the FWC (currently, the termination proceedings, as the appeal in respect of the 2017 Agreement has been determined, albeit subject to appeal to this Court on the "fairly chosen" issue). For one thing, the FWC may be right that the construction of the Award in respect of split shifts is not a central consideration under s 226 of the Fair Work Act which applies to the termination proceeding. For another, if it becomes central, the position is the same as in Teys; a decision of this Court which provides a determinative construction of the Award would assist the FWC in discharging its functions under s 226 of the Fair Work Act. Further, and as noted, there is unchallenged evidence before the Court that the issues to be resolved in this Court are fundamental to any new enterprise agreement to be negotiated between Aerocare and its employees, and relate to widespread rostering practices in the industry. As a result, it is not the case, as the Unions would have it, that the issues in this proceeding are relevant only for the purpose of the termination proceedings in the FWC or any further consideration by the FWC of the 2017 Agreement after this Court has resolved Aerocare's appeal on the "fairly chosen" issue. 32 For these reasons the Unions' interlocutory applications should be dismissed. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate: Dated: 23 February 2018