mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Master Builders' Association of Victoria v Australian Building Construction Employees' and Builders' Labourers' Federation [1981] FCA 49 ; (1981) 54 FLR 358
Outcome: cited
considerable reservation, it is considered that those claims could best be characterised as claims for the underpayment of wages and for penalties &#8212; rather than as applications impermissibly seeking an interpretation of a certified agreement which only this Court can give: cf Master Builders' Association of Victoria v Australian Building Construction Employees' and Builders' Labourers' Federation [1981] FCA 49 ; (1981) 54 FLR 358 at 360 to 361 per Evatt and Northrop JJ. As emphasised by Senior Counsel for the Respondent, cause for reservation may be founded upon the very manner in which the case was opened. The Chief Industrial Magistrate asked at the outset: Are you going to open and tell me what this is about? After some preliminary matters were mentioned, Counsel on behalf of the now Appellant answered as follows: Your Honour the matter before the court is one of an interpretation of a certified agreement ... He concluded his brief opening with these words: So your Honour the matter before you is one of the interpretation for correct construction of an industrial instrument being a certified agreement ... There was only passing reference in the opening to any claim for wages and no reference to penalties. Notwithstanding the manner in which the case may have been opened, however, the applications as filed were expressed in terms of claims for underpayment of wages and penalties. Neither the scarcity of the evidence in support of those claims, nor the manner in which the claims were presented, is sufficient to deny to those claims the character of proceedings which properly fell within the jurisdiction of the Chief Industrial Magistrate's Court. The scarcity of the evidence presented may well have provided a sufficient basis upon which those claims could possibly have been rejected. Had a different conclusion been reached by the Industrial Magistrate as to the construction of clause 12, it may have been appropriate to extend a further opportunity to the claimant employees to remedy the deficiency in the existing evidence. So much was recognised by the Chief Industrial Magistrate in his reasons for decision. But it was the construction of clause 12 which ultimately proved fatal to the claims being advanced. A further opportunity to supplement the deficiency in the evidence became unnecessary by reason of that construction.
Case: McAleer v University of Western Australia (No 3) [2008] FCA 1490 , 171 FCR 499
Outcome: cited
nature of a certified agreement and the means of enforcement, together with the role of this Court conferred by s 413A, has been the subject of analysis by the Full Court in ACTEW Corporation Ltd v Pangallo [2002] FCAFC 325 , 127 FCR 1. Whitlam and Gyles JJ there observed: [34] The argument that the remedies provided by the Act are inadequate to ensure compliance with a certified agreement and that there should be means for enforcing obligations beyond those specifically provided by this statute is contrary to the history of enforcement of industrial obligations, as explained by Madgwick J in Wattyl. The Act has, for some time, reflected the policy of not specifically enforcing industrial obligations, except insofar as express remedies are provided. In any event, the point loses much of its force when consideration is given to ss 131, 170LT and 170LW. This is not the occasion to explore all of the ramifications of those provisions or to decide what role, if any, the courts have to play in enforcement of such provisions. It is sufficient to say that there is no complaint about the operation of the dispute settling mechanism in this case -- it is the result about which complaint is made. There is no need to call in aid the power of a court to make a declaration of right as to the construction of the agreement as that role is expressly dealt with by s 413A of the Act. [35] ... [W]e accept the submission that the Act has created the concept of a certified agreement, has given it statutory force and has also regulated the means by which it may be construed and enforced in accordance with the principle in Josephson v Walker . In our opinion, the statute excludes a court of general jurisdiction of a State or Territory from the field, except insofar as it is expressly included, and is inconsistent with the ability of such a court to make a binding declaration of right as to the effect of a certified agreement. ... See also: McAleer v University of Western Australia (No 3) [2008] FCA 1490 , 171 FCR 499 per Siopis J at [76].
Case: Sydney Ferries Corporation v Australian Maritime Officers Union (No 2) [2008] FCA 954
Outcome: cited
the context of an industrial award, Madgwick J (sitting as a judge of the Industrial Relations Court of Australia) in Kucks v CSR Ltd (1996) 66 IR 182 observed at 184: It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand. But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. ... These observations were cited with approval in Amcor Ltd : [2005] HCA 10 per Kirby J at [96] and Callinan J at [129]. See also: Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 at 212 per Northrop J; Transadelaide v Leddy (No 2) (1998) 80 IR 265 at 271; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods Ltd [2006] FCA 1039 , 155 IR 211 per Ryan J at [26] to [27]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2007] FCA 1515 , 168 IR 353 per Gordon J at [42] to [43]; Soliman v University of Technology, Sydney [2008] FCA 1512 , 176 IR 183 per Jagot J at [82]. The " words of the award or agreement cannot be interpreted in a vacuum divorced from industrial realities ": Sydney Ferries Corporation v Australian Maritime Officers Union (No 2) [2008] FCA 954 per Sackville J at [52].
Case: Transadelaide v Leddy (No 2) (1998) 80 IR 265
Outcome: cited
the context of an industrial award, Madgwick J (sitting as a judge of the Industrial Relations Court of Australia) in Kucks v CSR Ltd (1996) 66 IR 182 observed at 184: It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand. But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. ... These observations were cited with approval in Amcor Ltd : [2005] HCA 10 per Kirby J at [96] and Callinan J at [129]. See also: Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 at 212 per Northrop J; Transadelaide v Leddy (No 2) (1998) 80 IR 265 at 271; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods Ltd [2006] FCA 1039 , 155 IR 211 per Ryan J at [26] to [27]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2007] FCA 1515 , 168 IR 353 per Gordon J at [42] to [43]; Soliman v University of Technology, Sydney [2008] FCA 1512 , 176 IR 183 per Jagot J at [82]. The " words of the award or agreement cannot be interpreted in a vacuum divorced from industrial realities ": Sydney Ferries Corporation v Australian Maritime Officers Union (No 2) [2008] FCA 954 per Sackville J at [52].
Case: Western Newspapers Pty Limited v Warren (1994) 56 IR 340
Outcome: cited
addition to the jurisdiction conferred by s 382 of the 1966 Act, s 177A of the Workplace Relations Act 1996 (Cth) ("the 1996 Act"), as in force at the relevant period, defined a " court of competent jurisdiction " as including a magistrate's court and in Western Newspapers Pty Limited v Warren (1994) 56 IR 340 at 346 it was concluded that the Chief Industrial Magistrate's Court of New South Wales was a court of competent jurisdiction for the purposes of s 178. Section 178 conferred jurisdiction to impose a penalty. As noted by Moore J in Warren , the source of the Commonwealth Parliament's power to confer federal jurisdiction on a state court is to be found in s 77(iii) of the Constitution : (1994) 56 IR at 345. The present Appeal originated on 22 February 2006 when two proceedings were commenced in the Chief Industrial Magistrate's Court. In one proceeding the Applicant Union sought ( inter alia ) an order that $2,164.80 plus interest be paid to a member of the Union, Mr Colin Haidle, increasing to a claim for $4,649.37 plus interest at trial. In the second proceeding the Applicant Union sought an order that $10,170.45 plus interest be paid to another union member, Mr John Hodge, increasing to a claim for $16,915.25 plus interest at trial. In addition, in both proceedings the imposition of a penalty was sought. The entitlement to be paid those monies depended upon the construction of a series of three agreements made under the Workplace Relations Act 1996 (Cth). The first of these agreements was the Ulan Coal Mines Ltd Underground Mine Certified Agreement 1998 ; the second being the Ulan Coal Mines Ltd Underground Certified Agreement 2001 2002 ; and the current agreement being the Ulan Coal Mines Ltd Underground Certified Agreement 2003 . The provision of each agreement upon which the claimed entitlement to monies was founded, clause 12, was in relevantly identical terms. That clause provided for payment and rates of payment on weekends and holidays.
Case: Deborah Hobson and Ors on behalf of the Kuuku Ya'u People v State of Queensland [2009] FCA 679
Outcome: referred to
am satisfied that the proposed orders that have been freely agreed to by all of the parties on an informed basis are appropriate. There are now a number of decisions of this Court that have considered the requirements of this section of the Act that promotes a resolution of native title applications by way of negotiated agreement. Justice Greenwood, in Deborah Hobson and Ors on behalf of the Kuuku Ya'u People v State of Queensland [2009] FCA 679 at [12] referred to the observations made by Chief Justice French in his paper, Lifting the Burden of Native Title Some Modest proposals for Improvement , that the Court will not lightly second-guess the agreement the parties have reached by requiring formal proof of the content of the subject matter of each proposition contained in the proposed orders which in turn must necessarily address the elements of ss 223 and 225 of the Act. Otherwise the Applicant would be burdened with, in effect, a subset of a trial in establishing the appropriateness of consensual orders. Consideration of Agreement and Draft Determination
Case: Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493
Outcome: applied
to what I have to say below, I am prepared to assume for present purposes, that, given his apparently ongoing disputes with Centrelink, Mr Duncan has had a special interest in the proper performance of the statutory obligations imposed by s 9 above that of an ordinary member of the public: see Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 at 547-548; Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49 ; (1998) 194 CLR 247 at 261; insofar as those obligations relate both to the making available of, and to including in the s 9(2)(b) statements, documents used in Centrelink's making decisions or recommendations concerning him. I am, in consequence, prepared to assume that he could have been "a person aggrieved" if, for the purposes of s 5(1) of the AD(JR) Act, the CEO had taken a "decision" to which s 5 applied: see Mark v Australian Broadcasting Tribunal [1991] FCA 570 ; (1991) 32 FCR 476 at 477.
Case: Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49 ; (1998) 194 CLR 247
Outcome: applied
to what I have to say below, I am prepared to assume for present purposes, that, given his apparently ongoing disputes with Centrelink, Mr Duncan has had a special interest in the proper performance of the statutory obligations imposed by s 9 above that of an ordinary member of the public: see Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 at 547-548; Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49 ; (1998) 194 CLR 247 at 261; insofar as those obligations relate both to the making available of, and to including in the s 9(2)(b) statements, documents used in Centrelink's making decisions or recommendations concerning him. I am, in consequence, prepared to assume that he could have been "a person aggrieved" if, for the purposes of s 5(1) of the AD(JR) Act, the CEO had taken a "decision" to which s 5 applied: see Mark v Australian Broadcasting Tribunal [1991] FCA 570 ; (1991) 32 FCR 476 at 477.
Case: Mark v Australian Broadcasting Tribunal [1991] FCA 570 ; (1991) 32 FCR 476
Outcome: cited
to what I have to say below, I am prepared to assume for present purposes, that, given his apparently ongoing disputes with Centrelink, Mr Duncan has had a special interest in the proper performance of the statutory obligations imposed by s 9 above that of an ordinary member of the public: see Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 at 547-548; Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49 ; (1998) 194 CLR 247 at 261; insofar as those obligations relate both to the making available of, and to including in the s 9(2)(b) statements, documents used in Centrelink's making decisions or recommendations concerning him. I am, in consequence, prepared to assume that he could have been "a person aggrieved" if, for the purposes of s 5(1) of the AD(JR) Act, the CEO had taken a "decision" to which s 5 applied: see Mark v Australian Broadcasting Tribunal [1991] FCA 570 ; (1991) 32 FCR 476 at 477.
Case: Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50
Outcome: cited
do not consider that Mr Duncan has, throughout, been acting simply as "an effective and faithful representative of the public interest in due administration of the [FOI Act]": Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50 at 84; notwithstanding that he has made comments suggesting this in his affidavits. I would also note that s 10(1) of the FOI Act, to which I earlier referred, lends support to the view that a person could in fact be prejudiced by the reliance by a decision maker on a document not made publicly available, or included in the s 9(2)(b) statement, when making a decision in relation to that person. Secondly, I am prepared to assume (a) that, subject to the s 9(4) exempt matter question, the FOI Manual was of such character that it ought to have been made available to the public and to have been specified in the 2006 statement as Centrelink, through Ms Terry's evidence, seems to accept; and (b) that its non-inclusion in the documents made available could found an application under s 5(1) of the AD(JR) Act by an aggrieved person, if such resulted from a decision of an administrative character made under an enactment. For the reasons I will shortly give, I am satisfied that, in discharge of the s 9 obligations, a decision making process was adopted for which the CEO was responsible and that a decision of a type that was amenable to AD(JR) Act review was taken by Ms Terry for the CEO which resulted both in the omission of the FOI Manual from the documents made publicly available and in no reference being made to it in the statement.
Case: Whim Creek Consolidated NL v Colgan [1991] FCA 467 ; (1991) 103 ALR 204
Outcome: cited
do not consider that it properly can be said that, s 9(4) apart, s 9(1) and (2) create a self-executing regime with the obligation to make documents available flowing directly from the "existence of facts falling within [s 9(1)]" and not from "a decision": cf Whim Creek Consolidated NL v Colgan [1991] FCA 467 ; (1991) 103 ALR 204 at 211 and the cases referred to therein; see also Aronson, Dyer and Groves, Judicial Review of Administrative Action , 61 ff (3 rd ed, 2004).
Case: Peverill v Meir (1990) 95 ALR 401
Outcome: cited
intent of s 9 is obvious enough. It is to have made publicly available for inspection and purchase documents having the characteristics prescribed in s 9(1), though subject (inter alia) to exceptions as in s 9(4). Moreover, it is mandatory in its requirement. The exceptions apart, no discretion is given as to whether documents having those characteristics will be made available, i.e. whether the s 9(2)(a) function ought be performed at all or in a given instance, but then a discretion is not the necessary requirement for a decision to which the AD(JR) Act applies: see s 3(1) "decision to which this Act applies". Provided a decision is of an administrative character required to be made under an enactment, that suffices: cf Peverill v Meir (1990) 95 ALR 401 at 421.
Case: Guss v Commissioner of Taxation [2006] FCAFC 88 ; (2006) 152 FCR 88
Outcome: cited
is, in my view, improbable that Parliament intended s 9(1) as identifying objective facts on which s 9(2)(a) would operate rather than as setting criteria which, though largely factual in character, does involve deliberative evaluation and could give rise to questions of judgment and degree (e.g. was a document "used by the agency or its officers" in the manners specified and for the purposes specified). When coupled with the need to negative the operation of s 9(4) before making the determination to make a document available, s 9(2)(a) clearly required that a mental process be engaged in requiring the application of consideration to a variety of matters posed by the s 9(1) criteria and by the s 9(4) exception before reaching a decision which had its external manifestation in the s 9(2)(b) statement. That determination, in a practical sense, ordained whether or not a document would be made available for public inspection and purchase. I am not in this suggesting that there was a decision made under s 9(2)(b) to make available the statement specifying the s 9(2)(a) documents. That action itself did not emanate from a deliberative or reasoning process: cf Guss v Commissioner of Taxation [2006] FCAFC 88 ; (2006) 152 FCR 88 at [75] , [82]. It was simply a routine mechanical (or ministerial) act that was required to be done. Rather, I am of the view that the s 9(2)(b) statement was the formal manifestation of the CEO's decisions as to the documents that were required to be made available under s 9(2)(a). Further, the CEO's decision was "of an administrative character made under an enactment". Its object was the ascertainment of the documents which members of the public would be entitled as of right under the Act to inspect and purchase. In this its administrative character was obvious enough.
Case: Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99
Outcome: applied
Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99 , Gummow, Callinan and Heydon JJ in commenting on the mirror "made under an enactment" formula of Queensland's Judicial Review Act 1991 (Qld), observed (at [89]): "The determination of whether a decision is 'made ... under an enactment' involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be 'made ... under an enactment' if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice." (Emphasis in original.) The statutory right presently in question was a right the FOI Act intended Mr Duncan to have as a member of the public. It was affected by the decision manifested in the non-inclusion of the FOI Manual in the 1 August 2006 statement. The travails he had in securing his statutory entitlement up until the decision to give him the manual evidence the possible significance of the right itself to a member of the public. He was denied that to which the Act gave him an entitlement. Accordingly I would be satisfied that, but for the provision to Mr Duncan of the manual on 8 August 2006, and on the assumptions that I have been making, Mr Duncan would have been entitled to the declaration that he is now seeking, i.e. that he is entitled to the provision of a statement of reasons for the non-inclusion of the FOI Manual in the documents made available to the public under s 9(2)(a) of the Act, which was manifest in the 1 August 2006 statement. Nonetheless, as a matter of discretion, I am also satisfied that declaratory relief ought be refused.