Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Absolute Commissioning Group Pty Ltd (No 2) [2024] FCA 1324

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Absolute Commissioning Group Pty Ltd (No 2) [2024] FCA 1324

The Federal Court has jurisdiction to hear the applicants’ allegations against UGL on the basis that the general protections court application, as commenced, included an application for an interim injunction and this satisfies s 370(b) of the Fair Work Act 2009 (Cth) even though the interim relief was later dismissed and UGL was joined as a respondent at a later stage. The joining of UGL without leave was an irregularity that can be, and is, cured by an order nunc pro tunc. As the claims against UGL included both dismissal and non-dismissal disputes, the jurisdictional bar of s 370 only applies to dismissal disputes.

Parties
First Applicant: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Second Applicant: Bennett Shoemark; Third Applicant: Dean Brazier; First Respondent: Absolute Commissioning Group Pty Ltd; Second Respondent: John Hitchens; Third Respondent: UGL Engineering Pty Ltd
Jurisdiction
Australia
Judgment Date
19 November 2024
Procedural Posture
Interlocutory Application Within General Protections Proceeding (industrial/employment) / Decision on Interlocutory Application for Summary Dismissal and Joinder Issues
Outcome
Application for summary dismissal by UGL dismissed; time for UGL to file defence extended; leave granted nunc pro tunc to applicants to file amended applications and statements of claim; no order as to costs.
Legal Topics
Fair Work Act – General Protections, Summary Dismissal – Want of Jurisdiction, Interim Injunctions, Joinder of Parties, Procedural Irregularities
Industrial Law Practice and Procedure Fair Work Act – General Protections Summary Dismissal – Want of Jurisdiction Interim Injunctions Joinder of Parties Procedural Irregularities

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Parties

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

First Applicant

Bennett Shoemark

Second Applicant

Dean Brazier

Third Applicant

Absolute Commissioning Group Pty Ltd

First Respondent

John Hitchens

Second Respondent

UGL Engineering Pty Ltd

Third Respondent

Procedural Posture

Interlocutory Application Within General Protections Proceeding (industrial/employment) / Decision on Interlocutory Application for Summary Dismissal and Joinder Issues

Legal Issues

  1. 1 Whether the Federal Court has jurisdiction to hear the applicants’ claims against the third respondent given the conditions in s 370 of the Fair Work Act 2009 (Cth)
  2. 2 Whether the filing and serving of amended applications joining new respondent without leave was an effective joinder
  3. 3 Proper interpretation and scope of s 370(b) FW Act regarding inclusion of an interim injunction application

Ratio Decidendi

The Federal Court has jurisdiction to hear the applicants’ allegations against UGL on the basis that the general protections court application, as commenced, included an application for an interim injunction and this satisfies s 370(b) of the Fair Work Act 2009 (Cth) even though the interim relief was later dismissed and UGL was joined as a respondent at a later stage. The joining of UGL without leave was an irregularity that can be, and is, cured by an order nunc pro tunc. As the claims against UGL included both dismissal and non-dismissal disputes, the jurisdictional bar of s 370 only applies to dismissal disputes.

Court Disposition

Application for summary dismissal by UGL dismissed; time for UGL to file defence extended; leave granted nunc pro tunc to applicants to file amended applications and statements of claim; no order as to costs.

Orders

  • Leave granted to UGL Engineering Pty Ltd to file and serve a defence by close of business on 3 December 2024.
  • UGL’s interlocutory application (as amended) is otherwise dismissed.