High Court of Australia Judgment Summary Notes

DWN042 v The Republic of Nauru [2017] HCA 56

Today the High Court unanimously allowed an appeal from the Supreme Court of Nauru. The High Court held that the Supreme Court had failed to accord the appellant procedural fairness by failing to consider a notice of motion.

In August 2013, the appellant, a Sunni Muslim of Pashtun ethnicity and a Pakistani national, arrived by boat at Christmas Island. In September 2013, he was transferred to the Republic of Nauru (“the Republic”) under a Memorandum of Understanding reached between Australia and the Republic. In November 2013, the appellant attended a transfer interview. As part of that interview, a form was completed which was not signed by the appellant. In December 2013, the appellant applied to the Secretary of the Department of Justice and Border Control of Nauru (“the Secretary”) for refugee status. As part of the application, the appellant claimed that he was at risk of arbitrary deprivation of life at the hands of the Taliban. His application was refused by the Secretary. The appellant applied unsuccessfully to the Refugee Status Review Tribunal (“the Tribunal”) for review of the Secretary’s determination. The Tribunal concluded that there was a less than reasonable possibility that the appellant would be targeted by the Taliban in the reasonably foreseeable future. The appellant appealed from the decision of the Tribunal to the Supreme Court. At the appeal hearing, counsel for the respondent sought to be heard on a motion to strike out grounds 1 and 2 of the amended notice of appeal. The primary judge struck out those grounds, with reasons to be given at a later date. Arguments proceeded on grounds 3 and 4, and judgment was reserved on those grounds. On 20 May 2016, the primary judge gave his reasons for striking out grounds 1 and 2, which both parties accepted were “plainly wrong”. The appellant sought leave to appeal to the High Court from the interlocutory decision of the primary judge striking out grounds 1 and 2. In light of assurances given to the High Court by the respondent, and due to the interlocutory nature of the application, the High Court refused leave to appeal. On 6 February 2017, the day before final judgment on grounds 3 and 4 was to be delivered, the appellant filed a notice of motion to reinstate grounds 1 and 2, and to reopen the appeal to further amend those grounds. On 7 February 2017, the primary judge delivered final judgment without hearing that notice of motion.

The appellant appealed to the High Court as of right on five grounds. The first ground alleged error by the primary judge in failing to consider the appellant’s notice of motion. The second and third grounds concerned the allegedly unconstitutional nature of the appellant’s detention at the time of the Tribunal hearing. The fourth ground alleged error by the primary judge in failing to conclude that the Tribunal erred in failing to consider part of the appellant’s claim to complementary protection. The fifth ground alleged that the primary judge erred in failing to conclude that the Tribunal erred by relying on the appellant’s unsigned and unsworn transfer interview form. The High Court dismissed four of the five grounds of appeal but held that, in all of the circumstances of the case, the Supreme Court’s failure to consider the appellant’s notice of motion involved a denial of procedural fairness. The High Court therefore allowed the appeal, set aside the order made by the Supreme Court and ordered that the matter be remitted to the Supreme Court of Nauru for reconsideration according to law.

Regional Express Holdings Limited v Australian Federation of Air Pilots [2017] HCA 55

Today, the High Court unanimously dismissed an appeal from a decision of the Full Court of the Federal Court of Australia. The High Court held that an industrial association registered under the Fair Work (Registered Organisations) Act 2009 (Cth) (“the FWRO Act”) is entitled to represent the industrial interests of a person, within the meaning of s 540(6)(b)(ii) of the Fair Work Act 2009 (Cth), where that person is eligible for membership of the industrial association pursuant to its eligibility rules but is not a member of the industrial association.

The respondent is an industrial association registered as an organisation of employees under the FWRO Act. The appellant sent a letter to a number of persons to the effect that any person who completed its cadet programme and insisted on his or her workplace right to appropriate accommodation during layovers would not be given a position of command. The respondent alleged that the letter contravened various civil remedy provisions of the Fair Work Act and applied to the Federal Circuit Court of Australia for pecuniary penalty orders. The persons to whom the letter had been sent were not members of the respondent. The appellant applied to have the claim summarily dismissed on the basis that the respondent lacked standing because it was not an industrial association “entitled to represent the industrial interests of” the persons who had received the letter as required by s 540(6)(b)(ii) of the Fair Work Act. The primary judge dismissed that application, holding that, because the persons to whom the letter had been sent were eligible for membership of the respondent, the respondent was entitled to represent their industrial interests within the meaning of s 540(6)(b)(ii) of the Fair Work Act.

The appellant appealed to the Full Court of the Federal Court. The Full Court dismissed the appeal, holding that an historical survey of legislative development of the expression “entitled to represent the industrial interests of” in s 540(6)(b)(ii) of the Fair Work Act demonstrated that it had been legislatively deployed and understood as allowing an industrial organisation to represent the industrial interests of employees who are eligible for membership of the organisation.

By grant of special leave, the appellant appealed to the High Court. The Court held that, in the case of an industrial association which is registered as an organisation under the FWRO Act, the fact that a person is eligible for membership of the association in accordance with its eligibility rules is sufficient to make the association “entitled to represent the industrial interests of” that person within the meaning of s 540(6)(b)(ii) of the Fair Work Act. This construction was consistent with the context of the provision both within the Fair Work Act and against the background of its legislative history. Accordingly, the Full Court did not err in their construction of the expression and the appeal was dismissed.

Esso Australia Pty Ltd v The Australian Workers’ Union; The Australian Workers’ Union v Esso Australia Pty Ltd [2017] HCA 54

Today, the High Court allowed one appeal by majority and unanimously dismissed a second appeal from a decision of the Full Court of the Federal Court of Australia regarding the application of certain provisions of the Fair Work Act 2009 (Cth) to industrial action taken by The Australian Workers’ Union (“the AWU”) against Esso Australia Pty Ltd (“Esso”).

Section 415 of the Fair Work Act confers a broad-ranging immunity from civil suit on persons engaging in or organising protected industrial action. Section 413 specifies the common requirements for industrial action to qualify as protected industrial action for a proposed enterprise agreement. Relevantly, s 413(5) provides that persons organising or engaging in the action “must not have contravened any orders that apply to them and that relate to, or relate to industrial action relating to, the agreement or a matter that arose during bargaining for the agreement”.

In 2015, during negotiations for a new enterprise agreement, the AWU organised industrial action against Esso which it claimed was protected industrial action. Esso obtained an order from the Fair Work Commission (“the Commission”) requiring the AWU to stop organising certain forms of action. In contravention of that order, the AWU continued to organise the proscribed action.

Esso instituted proceedings in the Federal Court of Australia seeking inter alia declarations that the AWU was a person who had contravened an order which applies to it, in the terms of s 413(5), with the consequence that action thereafter organised by the AWU in relation to the agreement was not protected industrial action. It was also alleged that, contrary to ss 343 and 348 of the Fair Work Act, the AWU had organised action with intent to coerce Esso to enter into an agreement on terms favourable to the AWU. The primary judge declined to make the declarations sought by Esso, but found that the AWU had contravened ss 343 and 348. On appeal, the Full Court held that the AWU’s prior contravention of the Commission’s order did not fall within the terms of s 413(5) and that there was no error in the primary judge’s approach to or application of ss 343 and 348.

By grant of special leave, Esso and the AWU each appealed to the High Court against the Full Court’s decision in relation to the construction of s 413(5) and the contraventions of ss 343 and 348 respectively. In relation to Esso’s appeal, a majority of the High Court held that the requirement in s 413(5) for compliance with orders is not confined to orders that are in existence or may still be complied with at the time of the proposed protected industrial action, or which relate to that action. The majority held that s 413(5) applies to past contraventions of orders that applied to the relevant persons and that related to the relevant subject matter, and thus, by reason of its contravention of the Commission’s order, the AWU failed to meet the requirement in s 413(5) for its subsequently organised action to qualify as protected industrial action. In relation to the AWU’s appeal, the Court unanimously held that a contravention of s 343 or s 348 is constituted of organising, taking or threatening action against another person with intent to negate that person’s choice and that knowledge or intent that the action be unlawful, illegitimate or unconscionable is not required. In the result, Esso’s appeal was allowed and the AWU’s appeal was dismissed.

Aldi Foods Pty Limited v Shop, Distributive and Allied Employees Association & Anor [2017] HCA 53

Today the High Court unanimously allowed, in part, an appeal from the Full Court of the Federal Court of Australia. The High Court held that the Full Court erred in holding that the Fair Work Commission (“the Commission”) cannot approve an enterprise agreement under s 186(2)(a) of the Fair Work Act 2009 (Cth) (“the Act”) for a new enterprise where the agreement is made with existing employees of an employer who have agreed, but have not yet started, to work as employees in the new enterprise. The High Court further held, however, that the Full Court was correct to hold that the Commission fell into jurisdictional error in being satisfied that the enterprise agreement in this case passed the “better off overall test” (“the BOOT”) for the purposes of s 186(2)(d) of the Act.

In early 2015, ALDI Foods Pty Ltd (“ALDI”) was in the process of establishing a new undertaking in Regency Park in South Australia. It sought from its existing employees in its stores in other regions expressions of interest to work in the Regency Park region. Seventeen employees subsequently accepted offers of employment in the new undertaking. ALDI then commenced a process of bargaining with those employees, without the involvement of any union. That process culminated in the making, under s 172(2)(a) of the Act, of the ALDI Regency Park Agreement (“the Agreement”), in favour of which 15 employees voted. At the time the vote was conducted, the Distribution Centre at Regency Park was still under construction, and trading in the region had not commenced. ALDI applied to the Commission for approval of the Agreement, and the Agreement was approved.

Both the Shop, Distributive & Allied Employees Association (“the SDA”) and the Transport Workers’ Union of Australia filed notices of appeal to the Full Bench of the Commission, contending that the Agreement should have been made as a “greenfields agreement” under s 172(2)(b) of the Act, because ALDI was establishing a new enterprise and had not employed in that new enterprise any of the persons who would be necessary for the normal conduct of that enterprise. It was also argued that the Agreement did not pass the BOOT. The Full Bench rejected both contentions, and dismissed the appeal. The SDA applied to the Full Court for judicial review. Granting the relief sought, the Full Court held by majority, first, that it was not open for the Commission to be satisfied that the Agreement had been genuinely agreed to by the employees “covered by” the agreement in accordance with s 186(2)(a) of the Act, as no employee could be covered until the Agreement came into operation, and second, that the Commission had erred in considering whether the employees were “no worse off”, rather than applying the BOOT. By grant of special leave, ALDI appealed to the High Court.

The High Court held that the Full Court’s reasoning on the coverage issue could not accommodate the distinction expressly drawn by ss 52 and 53 of the Act between coverage and application, and could not stand with the plain and ordinary meaning of s 172(2) and (4), which contemplate the making of non ‑ greenfields agreements with persons already employed. It was held that, once the Agreement was made, the employees were accurately described as being covered by it, even though it did not yet apply to them in the sense of being in operation so as to create rights and liabilities in relation to work actually performed under it. On the BOOT issue, the High Court upheld the Full Court’s conclusion, holding that the Full Bench did not engage in any comparison between the Agreement and the modern award, but rather treated a clause in the Agreement granting employees a right to payment of any shortfall in what they would be entitled to under the modern award as showing that the Agreement passed the BOOT. The High Court accordingly allowed the appeal in part, and issued a writ of mandamus requiring the Full Bench to determine the appeal against the Commission’s decision according to law.

Re Nash [No 2] [2017] HCA 52

On 27 October 2017, the High Court sitting as the Court of Disputed Returns answered questions referred to it by the Senate under s 376 of the Commonwealth Electoral Act 1918 (“the Act”) concerning the Hon Ms Fiona Nash. The answers given to the questions referred in that reference included answers to the effect that, by reason of s 44(i) of the Constitution, there was a vacancy in the representation of New South Wales in the Senate for the place for which Ms Nash was returned and that the vacancy should be filled by a special count of the ballot papers.

The candidate ascertained by the special count to be entitled to be elected to the place left unfilled by Ms Nash was Ms Hollie Hughes. By summons dated 7 November 2017, the Attorney-General of the Commonwealth sought an order that Ms Hughes be declared duly elected for that place. An affidavit was filed on behalf of Ms Hughes which raised an issue as to whether Ms Hughes was disqualified from being elected by reason of having been rendered “incapable of being chosen” by operation of s 44(iv) of the Constitution. The question of whether the order sought in the summons should be made was referred to the Full Court for consideration. On 15 November 2017, the High Court answered the question in the negative and dismissed the summons. Today the High Court published unanimous reasons for making those orders.

On 15 June 2017, Ms Hughes was appointed as a part-time member of the Administrative Appeals Tribunal (“the Tribunal”) for a period of seven years commencing on 1 July 2017. She resigned from that position on 27 October 2017. There was no dispute that the position Ms Hughes held between 1 July and 27 October 2017 answered the description of an “office of profit under the Crown” within the meaning of s 44(iv) of the Constitution. The issue before the Court was whether holding that office during the discrete period between 1 July and 27 October 2017 rendered Ms Hughes “incapable of being chosen” as a senator.

The Court held that the position held by Ms Hughes rendered her “incapable of being chosen” under s 44(iv). Those words refer to the process of being chosen. The Court held that it is the Act which establishes the structure by which the choice by the people is to be made and the processes established by the Act do not end with polling. They are brought to an end only with the declaration of the result of the election and of the names of the candidates elected and they are not completed when an unqualified candidate is returned. Therefore, Ms Hughes was disqualified by operation of s 44(iv) of the Constitution from being elected as a senator for the State of New South Wales for the place for which Ms Nash was returned. Ms Hughes was disqualified because she held an office of profit under the Crown during a period in which Ms Nash’s disqualification meant that the process of choice prescribed by the Parliament for the purpose of s 7 of the Constitution remained incomplete.