Ashby v Commonwealth of Australia (No 2) [2021] FCA 830

Ashby v Commonwealth of Australia (No 2) [2021] FCA 830

The delegate's refusal of the act of grace payment was authorised under s 65(1) of the PGPA Act, a law of the Commonwealth conferring a broad discretion, even where the exercise or non-exercise of a workplace right formed a basis for the decision; thus, the exception in s 342(3)(a) Fair Work Act applied, and no 'adverse action' occurred for the purposes of s 342(1), so the applicant's claim had no reasonable prospects of success and was summarily dismissed.

Parties
Applicant: James Hunter Ashby; First Respondent: Commonwealth of Australia; Second Respondent: Minister for Finance
Jurisdiction
Australia
Judgment Date
23 July 2021
Procedural Posture
Summary Judgment Application / Disposition of Summary Judgment; Dismissal of Balance of Proceeding
Outcome
Application summarily dismissed (balance of proceeding), subject to potential later application for costs; orders made regarding process for costs application and responses.
Legal Topics
Summary Dismissal, Adverse Action Under Fair Work Act, Act of Grace Payments, Interaction of Fair Work Act With Other Commonwealth Laws
Employment and Industrial Relations Practice and Procedure Summary Dismissal Adverse Action Under Fair Work Act Act of Grace Payments Interaction of Fair Work Act With Other Commonwealth Laws

Case Brief

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Parties

James Hunter Ashby

Applicant

Commonwealth of Australia

First Respondent

Minister for Finance

Second Respondent

Procedural Posture

Summary Judgment Application / Disposition of Summary Judgment; Dismissal of Balance of Proceeding

Legal Issues

  1. 1 Whether refusal of act of grace payment, based on the applicant's exercise of a workplace right, is 'adverse action' under s 342(1) of the Fair Work Act 2009 (Cth)
  2. 2 Whether s 342(3)(a) of the Fair Work Act 2009 (Cth) exempts such action as 'authorised by or under a law of the Commonwealth'
  3. 3 Whether applicant had any reasonable prospects of successfully prosecuting the balance of the proceeding

Ratio Decidendi

The delegate's refusal of the act of grace payment was authorised under s 65(1) of the PGPA Act, a law of the Commonwealth conferring a broad discretion, even where the exercise or non-exercise of a workplace right formed a basis for the decision; thus, the exception in s 342(3)(a) Fair Work Act applied, and no 'adverse action' occurred for the purposes of s 342(1), so the applicant's claim had no reasonable prospects of success and was summarily dismissed.

Court Disposition

Application summarily dismissed (balance of proceeding), subject to potential later application for costs; orders made regarding process for costs application and responses.

Orders

  • The balance of the proceeding is summarily dismissed, subject only to the hearing and determination of any application for costs by the respondents.
  • By 4.00 pm on 6 August 2021, or such further time as may be allowed, the respondents are to advise the applicant and chambers of Bromwich J by email whether any application for costs is sought, providing proposed procedural orders for its hearing and determination.