Swift action fails to achieve desired result


Swift action fails to achieve desired result

Parties who seek the urgent intervention of courts and tribunals to resolve industrial/employment matters aren't always successful, as these cases illustrate.


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Parties who seek the urgent intervention of courts and tribunals to resolve industrial/employment matters aren't always successful, as these cases illustrate.

No impact on defunct tribunal

Attempts in the High Court, Federal Court and Fair Work Commission failed to impact on the now defunct Road Safety Remuneration Tribunal.

In the High Court – Independent Contractors Australia & Anor v The Road Safety Remuneration Tribunal [2016] HCATrans 86 (15 April 2016)  – Chief Justice French refused an injunction against a tribunal order sought by the independent contractors association and remitted the matter of enforcing a RSRT order to the Federal Court:

“The plaintiffs … come late in the day. The order was made in December last year. The constitutional case may be arguable, but I cannot say at this stage that it is a strong case.”

A Full Federal Court – National Road Transport Association Ltd v Road Safety Remuneration Tribunal (No 2) [2016] FCAFC 58 (7 April 2016) – refused the road transport association application.

In dismissing the application made orally for a stay of an order and decision of the Road Safety Remuneration Tribunal, it stated:

“In Obeid v The Queen [2016] HCA 9, Gageler J observed that the additional considerations arise when the requirement of necessity has first been established saying… : ‘Since Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1], judicial exposition of the conditions under which a stay will be granted in the context of an application for special leave to appeal has uniformly emphasised the need for the existence of “exceptional circumstances’.”

In addition the Fair Work Ombudsman – Enforcement of RSRO 2016 – noted the concerns about small businesses, owner-drivers and families being exposed to legal action as a result of contraventions of the new Road Safety Remuneration Order 2016:

“Given ongoing confusion and concern surrounding the introduction of the 2016 Order, the Fair Work Ombudsman wishes to make it abundantly clear that as the Regulator charged with monitoring and enforcing compliance with the Order, it has no intention of seeking enforcement outcomes to early contraventions that may be identified. Such action would not be in the public interest.”

The tribunal has since been abolished.

Public servant’s dismissal gazetted

Meanwhile a public servant has failed in an attempt to halt her dismissal.

An urgent application by the dismissed public servant to stop the Defence Department publishing notice of her dismissal in the Australian Public Service Gazette was rejected by the Federal Court – K v Secretary, Department of Defence [2016] FCA 345 (6 April 2016)

Justice Bromwich found the claim had no merit and could not bypass the Fair Work Commission's  jurisdiction: “As none of the four proposed orders can be granted, the application must be dismissed. 

"As the application does not contain anything of substance beyond the seeking of an injunction, the entirety of the proceedings in this Court are at an end by the dismissal of the application.

"The ordinary process contemplated by s 370 of the Fair Work Act, having particular regard to the terms of ss 365 and 368 (and perhaps s 369), mean that the appropriate place for at least starting any substantive application for relief by the applicant is in the Fair Work Commission."

The bottom line: Fast legal action is sometimes needed to preserve the position of a particular party in an industrial/employment dispute. It is not always successful.

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