FEDERAL COURT OF AUSTRALIA Paull v Linfox Australia Pty Ltd [2018] FCA 149 File number: VID 1417 of 2017 Judge: BROMBERG J Date of judgment: 7 February 2018 Catchwords: PRACTICE AND PROCEDURE – Judiciary Act 1903 (Cth), s 39B – application for interlocutory injunction to restrain the Full Bench of the Fair Work Commission from hearing and determining an appeal prior to the proceeding being heard and determined – where the Full Bench refused request for adjournment – whether serious question to be tried – no arguable case of jurisdictional error able to be identified – where Full Bench in its reasons for refusing the adjournment had recognised efficiency in determining the appeal first – balance of convenience in favour of respondent – application dismissed Legislation: Fair Work Act 2009 (Cth) ss 562, 739 Judiciary Act 1903 (Cth) s 39B Cases cited: Alan Paull and Ors v Linfox Australia Pty Ltd [2017] FWC 5751 Australian Broadcasting Commission v O'Neill (2006) 227 CLR 57 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Limited (1986) 160 CLR 226 Craig v South Australia (1995) 184 CLR 163 Energy Australia Yallourn Pty Ltd v Automotive Food, Metals, Engineering, Printing and Kindred Industries Union [2017] FCA 1245 Kirk v Industrial Relations Commission (2010) 239 CLR 531 Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union [2015] FCA 1033 Date of hearing: 7 February 2018 Registry: Victoria Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 17 Counsel for the Applicants: Ms G Jardine Solicitor for the Applicants: Patten Robins Lawyers Counsel for the First Respondent: Mr M Follett Solicitor for the First Respondent: Minter Ellison Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS VID 1417 of 2017 BETWEEN: ALAN PAULL First Applicant ALEX CHAU Second Applicant ANTE BUBLE Third Applicant (and others named in the Schedule) AND: LINFOX AUSTRALIA PTY LTD First Respondent FAIR WORK COMMISSION Second Respondent JUDGE: BROMBERG J DATE OF ORDER: 7 FEBRUARY 2018 THE COURT ORDERS THAT: 1. The applicants' interlocutory application of 2 February 2018 is dismissed. 2. The first respondent's costs of that application are reserved. 3. The case management hearing be adjourned to a date to be fixed pending the hearing and determination in the Fair Work Commission of Allen Paull and Ors v Linfox Pty Ltd (C2017/6488). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BROMBERG J: 1 The applicants are some thirty-three employees of the first respondent, Linfox Australia Pty Ltd ("Linfox"). Both the applicants and Linfox, are covered by an enterprise agreement made under the Fair Work Act 2009 (Cth) ("FW Act") titled the "Linfox and Transport Workers' Union Road Transport and Distribution Centres Agreement 2014" ("Enterprise Agreement"). 2 The Enterprise Agreement contains a dispute resolution clause which empowers the second respondent ("Fair Work Commission") to resolve certain disputes. Pursuant to that dispute resolution process and s 739 of the FW Act, each of the applicants made an application to the Fair Work Commission to resolve a dispute in relation to the application of cl 5 of the Enterprise Agreement. Relevantly, cl 5.1 of the enterprise agreement is in the following terms: This Agreement is not intended to, nor shall it, alter a custom and practice applicable to the parties. 3 The disputes brought by the applicants in the Fair Work Commission were the subject of an arbitration and resolved unfavourably to the applicants in a decision of Commissioner Gregory published as Alan Paull and Ors v Linfox Australia Pty Ltd [2017] FWC 5751. 4 In broad terms, the applicants contended before the Fair Work Commission that cl 5 of the Enterprise Agreement had the effect of preserving an established custom and practice whereby, in their employments at Linfox, the applicants only performed specific roles that did not include a task known as "order picking", a task which Linfox now seeks that the applicants carry out. An issue before Commissioner Gregory was whether the custom and practice contended for by the applicants was established. The Commissioner determined that it was not. In doing so, the Commissioner followed a decision of a Full Bench of the Fair Work Commission which he regarded as requiring him to apply principles for determining whether a custom and practice may be implied into a contract of employment set out in Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226. 5 On 24 November 2017, the applicants made an application to appeal the decision of Commissioner Gregory. Directions for the processing of that appeal were then made, following which various submissions were filed. 6 On 22 December 2017 this proceeding was instituted. By their Originating Application, the applicants seek judicial review of the decision of Commissioner Gregory and consequent declaratory relief. Although not particularly clear, in broad terms the applicants seek to contend that Commissioner Gregory erred in regarding the principles set out in Con-Stan as applicable principles for determining whether a custom and practice is established for the purposes of cl 5 of the Enterprise Agreement. Additionally, and in the alternative, the applicants contend that Commissioner Gregory erred by incorrectly applying the principles in Con-Stan to the interpretation of cl 5 in the factual circumstances. 7 There may well be a question as to whether this Court has jurisdiction to deal with the Originating Application which the applicants have brought. There may be a question as to whether, in the face of the arbitration conducted by the Fair Work Commission, there remains a justiciable controversy capable of constituting a "matter" within the meaning of s 562 of the FW Act. I refer in this respect to my judgment in Energy Australia Yallourn Pty Ltd v Automotive Food, Metals, Engineering, Printing and Kindred Industries Union [2017] FCA 1245. However, I will proceed on the assumption that the Court has jurisdiction for the purpose of dealing with the application before me today. 8 Continuing the chronology, on 24 January 2018, at a directions hearing, the applicants sought leave from the Full Bench of the Fair Work Commission to be excused from filing further material relating to their appeal in the Fair Work Commission pending the determination of the proceeding in this Court. Effectively, the applicants sought that the appeal in the Fair Work Commission be adjourned pending the outcome of this proceeding. That application was rejected. On 30 January 2018, the following reasons were given by the Full Bench of the Commission: The Full Bench has now had an opportunity to consider the Appellants' request that the appeal in C2017/6488 scheduled for hearing on 6 March 2018 be adjourned pending the determination of the Appellants' application to the Court in VID1417/2017. The Full Bench is not persuaded to adjourn the hearing. The Appeal was commenced by the Appellants' in furtherance of the dispute settlement procedure of the Agreement. That procedure requires, inter alia, the preservation of the status quo pending the resolution of the matter by relevantly, arbitration. The maintenance of the Appeal means that the Respondent is required to maintain the status quo until the Appeal is heard and determined. Accordingly, the Appeal should be determined in a timely manner, which is consistent with the agreement of the parties embodied in clause 33.5 of the Agreement. Further directions were made on that day including that the appeal be listed for hearing on 6 March 2018. 9 By their interlocutory application the subject of these reasons, the applicants seek the following interlocutory order: That the Fair Work Commission be restrained by injunction from proceeding any further in the appeal brought by the Applicants against the First Respondent - Matter No. C2017/6488 until this Honourable Court has determined this application for judicial review. 10 At the outset, I sought from the applicants' counsel some identification of the jurisprudential foundation for the injunction being sought. It was made clear that an injunction in the nature of an anti-suit injunction (see Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union [2015] FCA 1033) was not being sought. Instead, the applicants rely on s 39B(1) of the Judiciary Act 1903 (Cth) as providing the jurisdiction for the Court to injunct officers of the Commonwealth, namely the members of the Fair Work Commission. 11 The principles to be applied in giving consideration to whether an interlocutory injunction should be issued are well known: see Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at [19] (Gleeson CJ and Crennan J) and [65]–[72] (Gummow and Hayne JJ). It is incumbent on the applicants to establish that there is a serious question to be tried and in addition, that the balance of convenience favours the granting of the injunction sought. 12 To satisfy the first limb, what the applicants need to demonstrate is a serious issue or a prima facie case that the decision of the Fair Work Commission to refuse the adjournment application is infected by jurisdictional error. The applicants' written submissions referred to Craig v South Australia (1995) 184 CLR 163 (Brennan, Deane, Gaudron, Toohey and McHugh JJ) and to the description there given as to what may constitute jurisdictional error. They also referred to the High Court's decision in Kirk v Industrial Relations Commission (2010) 239 CLR 531 at [67] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) where, by reference to Craig, the Court identified the circumstances in which an administrative tribunal may fall into jurisdictional error as follows: The drawing of a distinction between errors within jurisdiction and errors outside jurisdiction was held, in Craig, to require different application as between "on the one hand, the inferior courts which are amenable to certiorari and, on the other, those other tribunals exercising governmental powers which are also amenable to the writ". The Court said that: If ... an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it. By contrast, demonstrable error on the part of an inferior court "entrusted with authority to identify, formulate and determine" relevant issues, relevant questions, and what is and what is not relevant evidence was held, in Craig, not ordinarily to constitute jurisdictional error. The Court held that: a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error. 13 What the applicants had some difficulty identifying was the kind of jurisdictional error they asserted had infected the decision of the Fair Work Commission. When pressed on that matter, counsel for the applicants asserted that the Fair Work Commission had ignored relevant material by failing to take into account the applicants' case that in the administration of justice there were compelling grounds why the Federal Court proceeding should proceed first and be determined prior to the Fair Work Commission determining the appeal. Counsel for the applicants suggested that the failure of the Fair Work Commission to expressly refer to that argument evinces the Fair Work Commission's failure to take into account the case put to it in support of the adjournment. 14 I reject that contention. It may well be that the reasons of the Fair Work Commission are brief, as one would ordinarily expect reasons to be in relation to a procedural application of the kind that was before the Full Bench. Nevertheless, those reasons make it clear that the submission made by the applicants was considered and rejected. 15 In my view, there is no serious question established on the evidence before me that the Fair Work Commission's decision is infected with jurisdictional error. It seems to me that all that the applicants are in essence doing is challenging the merit of the Fair Work Commission's decision to not adjourn their appeal pending the hearing and determination of this proceeding. Whether the Fair Work Commission was right or wrong in addressing that matter on the merits is a matter for the Fair Work Commission. Even if the Fair Work Commission fell into error on the merits of that application, that would not be a basis for this Court intervening in the absence of jurisdictional error being established. 16 There being no serious question to be tried, it is not strictly necessary for me to turn to the question of the balance of convenience. For completeness, however, I note that in coming to its decision the Full Bench of the Fair Work Commission took into account the impact of delay. The circumstances appear to be that until the arbitration before the Fair Work Commission is finally determined, the dispute resolution clause requires that the status quo be maintained. In other words, in effect, it prevents Linfox from having the applicants perform the task of "order picking". That circumstance supports the proposition that the dispute is better resolved quickly than not. In that respect, I note that the Fair Work Commission has set down its appeal in March and indicated that it is likely to have a decision for the parties sometime in late March or early April. There is little or no chance of this Court being able to determine the proceeding before it in that timeframe. In my view, the fact that the Fair Work Commission can hear and determine the matter before it more quickly than this Court can is a matter that weighs in favour of Linfox on the question of balance of convenience. 17 For those reasons, the Court will dismiss the applicants' interlocutory application. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate: Dated: 22 February 2018 SCHEDULE OF PARTIES VID 1417 of 2017 Applicants Fourth Applicant: CATHERINE TAYLOR Fifth Applicant: CHRIS SPEED Sixth Applicant: DEREK HAYCOCK Seventh Applicant: EMMANUEL LIVORI Eighth Applicant: ENDER DOGU Ninth Applicant: ESHO SEFOU Tenth Applicant: FRANK CUSATO Eleventh Applicant: FRANK PISANO Twelfth Applicant: GLEN BROUGHTON Thirteenth Applicant: GLEN SMITH Fourteenth Applicant: IAN KING Fifteenth Applicant: JOE CAMILLERI Sixteenth Applicant: KIM SAN BUI Seventeenth Applicant: LOC TRAN Eighteenth Applicant: MARIO D'ANDREA Nineteenth Applicant: MATKO IIICIC Twentieth Applicant: MEL BAILEY Twenty-first Applicant: PAUL HUMAY Twenty-second Applicant: PETER SIKALESKI Twenty-third Applicant: PETER WHITNEY Twenty-fourth Applicant: PHAT HUYNH Twenty-fifth Applicant: ROB MORROW Twenty-six Applicant: STEVE PETERSON Twenty-seventh Applicant: THANH VO Twenty-eighth Applicant: THO AU Twenty-ninth Applicant: THOMAS AVRAM Thirtieth Applicant: THUY DANG Thirty-first Applicant: TRENT MURPHY Thirty-second Applicant: VAN MINH NGUYEN Thirty-third Applicant: WILLIE GARCIA