Construction Forestry Mining & Energy Union v Warren [1999] FCA 312

FEDERAL COURT OF AUSTRALIA

Construction Forestry Mining & Energy Union v Warren [1999] FCA 312 INDUSTRIAL LAW – appeal against decision of Industrial Magistrate – whether Industrial Magistrate erred in holding that the Industrial Magistrate's Court of Western Australia did not have jurisdiction under s 178 of the Workplace Relations Act 1996 (Cth) to hear appellant's complaint about breaches of a federal award by respondent – whether Industrial Magistrate erred in determining that s 178 of the Workplace Relations Act 1996 (Cth) did not operate of itself as an effective conferral of jurisdiction to hear appellant's complaint Constitution: s 77(iii) Workplace Relations Act 1996 (Cth): s 4, s 177A, s 178, s 422(1), Industrial Relations Act 1979 (WA): s 81(1), s 81(2), s 81B(1), s 81B(2) Stipendiary Magistrates Act 1957 (WA): s 3, s 7 Transport Workers Union of Australia, WA Branch v Cosmelia Holdings Pty Ltd t/a Kalgoorlie Fuel Company (1995) 75 WAIG 2944 impliedly disapproved Western Newspapers Pty Ltd v Warren (1994) 56 IR 340 cited Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 cited

CONSTRUCTION FORESTRY MINING AND ENERGY UNION v ALLEN WARREN TRADING AS AUSSIE CHERRYPICKER HIRE WG 105 OF 1998 BLACK CJ, CARR & MERKEL JJ PERTH 4 MARCH 1999 IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WG 105 OF 1998

BETWEEN: Construction Forestry Mining and Energy Union

Appellant

AND: Allen Warren Trading As Aussie Cherrypicker Hire

Respondent

JUDGE: Black CJ, Carr & Merkel JJ

DATE OF ORDER: 4 MARCH 1999

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The decision of the Industrial Magistrate given on 16 July 1998 be set aside. 3. The matter be remitted to the Industrial Magistrate's Court for hearing and determination according to law. 4. There be no order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WG 105 OF 1998

BETWEEN: Construction Forestry Mining and Energy Union

Appellant

AND: Allen Warren Trading As Aussie Cherrypicker Hire

Respondent

JUDGE: Black CJ, Carr & Merkel JJ

DATE: 4 MARCH 1999

PLACE: PERTH

REASONS FOR JUDGMENT THE COURT: 1 This is an appeal under s 422(1) of the Workplace Relations Act 1996 (Cth) ("the Act") against a judgment of Industrial Magistrate Cicchini, sitting in the Industrial Magistrate's Court of Western Australia. 2 The Industrial Magistrate, in his decision of 16 July 1998, dismissed the appellant's complaints for breaches of a federal award by the respondent on the ground that the Industrial Magistrate's Court did not have jurisdiction to hear the proceedings. The question on appeal is whether that court had jurisdiction to hear those complaints under s 178 of the Act. 3 The matter arose out of a complaint made by the appellant on 5 February 1998 that between 3 April 1992 and 4 April 1997 the respondent, being a party bound by the Mobile Crane Hiring Award 1996, an award of the Australian Industrial Relations Commission, had committed some 261 breaches of that award. 4 On 16 July 1998 when the matter came on for hearing before the Industrial Magistrate, the respondent objected to the jurisdiction of the Industrial Magistrate's Court. The Industrial Magistrate held that the Industrial Magistrate's Court could only exercise such jurisdiction as was conferred upon it by the Industrial Relations Act 1979 (WA) ("the State Act"), and appeared to regard the conferral of jurisdiction by s 178 of the federal Act as subject to express acceptance of that jurisdiction by state legislation. 5 The Industrial Magistrate also said that he was bound to follow a decision of the Full Bench of the Western Australian Industrial Commission in Transport Workers Union of Australia, WA Branch v Cosmelia Holdings Pty Ltd t/a Kalgoorlie Fuel Company (1995) 75 WAIG 2944, to the effect that the State Act did not confer jurisdiction on the Industrial Magistrate's Court to hear complaints made in relation to a federal award. His Worship struck out the complaints and made no order as to costs. 6 The appellant then appealed to the Federal Court under s 422(1) of the Act. The Chief Justice referred the matter to a full court pursuant to s 20(1A) of the Federal Court of Australia Act 1976 (Cth). On the hearing of the appeal, the Court granted leave to the Attorney-General for the State of Western Australia and to the Minister for Labour Relations of Western Australia to intervene. 7 The contentions advanced on behalf of the appellant, the Attorney-General and the Minister were substantially the same. In essence, they were that the Industrial Magistrate's Court was a "court of competent jurisdiction" within the meaning of s 177A of the Act and that the Industrial Magistrate had erred in law in determining that s 178 of the Act did not operate of itself as an effective conferral of federal jurisdiction to hear and determine the appellant's complaints. Section 178(1) of the Act relevantly provides: "Subject to section 182, where an organisation or person bound by an award, an order of the Commission or a certified agreement breaches a term of the award, order or certified agreement, a penalty may be imposed by the Court or, except in the case of a breach of a bans clause, by a court of competent jurisdiction" Section 177A defines the term "court of competent jurisdiction" as meaning "(a) a District, County or Local Court; or (b) a Magistrates court." Section 4 of the Act relevantly provides: "magistrate's court means: (a) a court constituted by a police, stipendiary or special magistrate; or (b) a court constituted by an industrial magistrate who is also a police, stipendiary or special magistrate." 8 The Industrial Magistrate's Court was established pursuant to s 81(1) of the State Act. Section 81(2) of that Act provides that: "[a]n industrial magistrate's court is a court of record and shall have an official seal of which judicial notice shall be taken." Section 81B(1) of the State Act provides that "[a]n industrial magistrate's court shall be constituted by an industrial magistrate." Section 81B(2) provides that the Governor may appoint a person holding office as a stipendiary magistrate to be an industrial magistrate. Section 7 of the State Act defines "stipendiary magistrate" as having the meaning given by the Stipendiary Magistrates Act 1957 (WA). Section 3 of the Stipendiary Magistrates Act defines "stipendiary magistrate" as "a person appointed to and holding office as a stipendiary magistrate" under that Act. 9 The jurisdiction and powers conferred on the Industrial Magistrate's Court by the State Act are such that it is constituted as a court and is intended to operate as such (see, for example, ss 81A to 81C of the State Act). Section 77(iii) of the Constitution empowers the Commonwealth Parliament to confer federal jurisdiction on a state court. That jurisdiction has to be conferred upon a court as an institution and not upon the persons of which it is composed (Commonwealth v Hospital Contribution Fund of Australia (1982) 150 CLR 49), but the conferral does not require acceptance by state legislation in order for it to be effective. It was common ground that Industrial Magistrate Cicchini is, and was at all material times, a stipendiary magistrate and an industrial magistrate. Therefore, the requirements of the State Act were satisfied. Accordingly, the Industrial Magistrate's Court falls within the definition of a magistrate's court in s 4 of the Act and is a "court of competent jurisdiction" for the purposes of s 178 of the Act. 10 This being the case, the Industrial Magistrate's Court clearly had jurisdiction to hear the matters raised in the complaints filed by the appellant. The industrial magistrate declined to follow a decision of Moore J in Western Newspapers Pty Ltd v Warren (1994) 56 IR 340 in relation to the present issue. He sought to distinguish that case but, in our view, there was no relevant distinction. 11 Accordingly, the appeal must be allowed on the ground argued. The decision of the Industrial Magistrate must be set aside and the matter must be remitted to the Industrial Magistrate's Court for hearing and determination according to law. Counsel for the appellant did not pursue his application for costs (see s 347 of the Act) and there will be no order as to costs. 12 It is unfortunate that this matter has taken the course it has. The gravamen of the argument put by the respondent to the Industrial Magistrate was that the conferral of power by s 178 of the Act was invalid as there had been no acceptance by the state legislature of the jurisdiction conferred. The argument directly raised the construction and operation of s 77(iii) of the Constitution. As the Industrial Magistrate regarded the argument as having substance, he was under a duty not to proceed unless and until he was satisfied that notice had been given to the Attorneys-General as required by s 78B(1) of the Judiciary Act 1903 (Cth); compare Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 at 74 per Toohey J. As we have upheld the appeal on other grounds, it is not necessary for us to consider the consequences of this omission. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Chief Justice Black and the Honourable Justices Carr and Merkel.

Associate: Dated: 4 March 1999

Counsel for the Appellant: Mr A. L. Drake-Brockman

Solicitor for the Appellant: Dwyer Durack

Counsel for the Minister for Labour Relations and the Attorney-General (WA), intervening by leave: Mr M. G. Lundberg

Solicitor for the Minister for Labour Relations and the Attorney-General (WA): Crown Solicitor for the State of Western Australia

Counsel for the Respondent: Mr G. S. Gishubl

Solicitor for the Respondent: Jackson McDonald

Date of Hearing: 4 March 1999

Date of Judgment: 4 March 1999