The HSU's members fund these delaying tactics, lousy investment too, Asmar and Kitching lost.

Asmar v Fair Work Commission [2015] FCA 16 (29 January 2015)

Last Updated: 29 January 2015

FEDERAL COURT OF AUSTRALIA

Asmar v Fair Work Commission [2015] FCA 16

THE COURT ORDERS THAT:

1. The applicants’ originating application is dismissed.

REASONS FOR JUDGMENT

1. The first applicant (Ms Asmar) is an office holder and secretary of the Victoria No 1 Branch of the Health Services Union (the Branch). The second applicant (Ms Kitching) is an employee and has been the general manager of the Branch. They are the subject of an inquiry being undertaken by the respondent (the Commission). 
2. The applicants have invoked s 39B of the Judiciary Act 1903 (Cth) (presumably ss 39B(1) and (1A)(c)) and ss 562 and 563 of the Fair Work Act 2009 (Cth) (the Act) seeking relief against the Commission including:

(a) A declaration that Div 5 of Pt 34 of the Act provides an exhaustive codification of the circumstances under which revocation of a right of entry permit granted under the Act can be proceeded with. 
(b) A declaration that the inquiry as defined in directions made by the Commission on 4 June 2014 was commenced and conducted ultra vires.
(c) An injunction restraining the Commission from taking any further step in the inquiry.
(d) An order in the nature of prohibition prohibiting the Commission from taking any further step in the inquiry. 

1. Essentially, the applicants challenge the jurisdiction of the Commission to proceed with the inquiry concerning the potential revocation of right of entry permits issued to Ms Asmar and others. The Commission has filed a submitting appearance and taken no active role in this proceeding. The Minister for Employment has intervened on behalf of the Commonwealth pursuant to s 569. He has made submissions in support of the Commission’s jurisdiction to proceed. 
2. In my opinion, the applicants’ jurisdictional challenge fails. Their originating application will be dismissed. 

THE INQUIRY AND ITS GENESIS

1. As I have said, Ms Asmar is an office holder and the secretary of the Branch. Ms Kitching is a current employee of the Branch and has acted as general manager. 
2. Ms Asmar holds a right of entry permit issued under the Act. Ms Asmar applied for this permit under s 512 and such a permit was issued on 31 January 2013. 
3. In August 2013, Ms Leonie Flynn, the assistant secretary of the Branch, made allegations to the Commission about the manner in which the Branch was being managed by Ms Asmar. She claimed that Ms Asmar and others had not undertaken their own tests to qualify for right of entry permits. It was asserted that Ms Kitching had completed tests on their behalf. 
4. In September 2013, the Director, Regulatory Compliance Branch of the Commission, Mr Chris Enright, commenced an inquiry into whether members of the Branch had engaged in such activities (the Enright inquiry). Mr Enright had various powers under the Act which were delegated to him under s 625 by an instrument dated 15 October 2012 issued by the President of the Commission including to: “Issue entry permits under section 512 of the Act, including all functions ancillary to the issuing of entry permits contained in Subdivision A of Division 6 of Part 3-4 of the Act”.
5. Between September 2013 and March 2014 Mr Enright conducted various interviews, obtained documents and the like. However, Mr Enright did not interview Ms Asmar or Ms Kitching. No objection was taken by any person to the conduct of the Enright inquiry. Moreover, Mr Enright did not exercise any coercive statutory power as part of the Enright inquiry. Putting to one side for the moment the ambit of the delegation given to him, no express statutory power seeking the voluntary production of information or documents was required (Clough v Leahy [1904] HCA 38;  (1904) 2 CLR 139 at 155157 and Austwide Institute of Training Pty Ltd v Australian Skills Quality Authority (2014) 223 FCR 572 at [47]).
6. On 24 March 2014, Mr Enright issued various notices of potentially adverse findings to employees and office holders of the Branch, including Ms Asmar and Ms Kitching (the notices). Mr Enright foreshadowed in the notices that he proposed to make various final “determinations”. The content of the notices needs no elaboration for present purposes.
7. On 30 April 2014, Holding Redlich, on behalf of the Health Services Union (Union), wrote to the President of the Commission requesting that a member of the Commission other than Mr Enright deal with the matters. 
8. At this time, no objection to the jurisdiction of Mr Enright to conduct the Enright inquiry was made. Moreover, no argument as to any absence of statutory power was made. Further, no challenge was made as to the ambit of his delegation. Rather, the Union only asserted that Mr Enright’s role should be limited to an investigative role, and that the responsibility for making determinations as to whether adverse findings should be made should be allocated to a member of the Commission. The Union asserted that: 

...[T]he process we propose would separate the ‘investigation’ and ‘prosecution’ stages from the ‘adjudication’ stage in the interests of ensuring that the person who determines the matters in question would approach the issues with an open mind.

1. The applicants’ originating application before me now raises the question of an asserted absence of jurisdiction and statutory power in relation to the Enright inquiry. But its principal focus concerns the metamorphosis of the Enright inquiry.
2. On 9 May 2014, the President made a direction pursuant to ss 582(4)(d) and 625(4) to the effect that Vice President Watson take over and deal with the matters raised by the notices. 
3. On 22 May 2014 a directions hearing was held before Vice President Watson to address the further conduct of such matters.
4. On 4 June 2014, directions were made for their future management. At this time, the matters were identified in terms referable to the subject matter of the Enright inquiry. 
5. On 18 July 2014, the Commission issued Terms of Inquiry into the matters that had been referred to Vice President Watson. These Terms identified ss 512, 582(4)(d) and 625(2) as sources of statutory authority or power and identified the following issues to be considered:

As to Ms. Diana Asmar (RE 2013/426)

1. Whether in order to obtain a ROE permit, Ms. Asmar made an inaccurate declaration for a ROE permit dated 29 January 2013 that she had received appropriate training about the rights and responsibilities of a permit holder, namely the ACTU Federal Right of Entry online training course completed on 25 January 2013.
2. Whether the right of entry permit issued to Ms. Asmar should be revoked.

As to Mr. David Eden (RE 2013/747)

1. Whether in order to obtain a ROE permit, Mr. Eden made an inaccurate declaration for a ROE permit dated 26 March 2013 that he had received appropriate training about the rights and responsibilities of a permit holder, namely the ACTU Federal Right of Entry online training course completed on 26 March 2013.
2. Whether the right of entry permit issued to Mr. Eden should be revoked.

As to Mr. Darryn Rowe (RE 2013/730)

1. Whether in order to obtain a ROE permit, Mr. Rowe made an inaccurate declaration for a ROE permit dated 21 March 2013 that he had received appropriate training about the rights and responsibilities of a permit holder, namely the ACTU Federal Right of Entry online training course completed on 20 March 2013.
2. Whether the right of entry permit issued to Mr Rowe should be revoked.

As to Mr. Dean Sherriff (RE 2013/580)

1. Whether in order to obtain a ROE permit, Mr. Sherriff made an inaccurate declaration for a ROE permit dated 20 February 2013 that he had received appropriate training about the rights and responsibilities of permit holder.
2. Whether in order to obtain a ROE permit, Mr. Sherriff made an inaccurate declaration for a ROE permit dated 12 March 2013 that he had received appropriate training about the rights and responsibilities of a permit holder, namely the ACTU Federal Right of Entry online training course completed on 15 February 2013.
3. Whether in order to obtain a ROE permit, Mr. Sherriff made an inaccurate declaration tor a ROE permit dated 20 February 2013 that he had "never been convicted of an offence against a law of Commonwealth, State, Territory or a foreign country, involving: ... intentional use of violence against another person or intentional damage or destruction of property".
4. Whether in order to obtain a ROE permit, Mr. Sherriff made an inaccurate declaration for a ROE permit dated 12 March 2013 that he had "never been convicted of an offence against a law of Commonwealth, State, Territory or a foreign country, involving: ... intentional use of violence against another person or intentional damage or destruction of property".
5. Whether the right of entry permit issued to Mr. Sherriff should be revoked.

As to Mr. Nick Katsis (RE 2013/583)

1. Whether in order to obtain a ROE permit, Mr. Katsis made an inaccurate declaration for a ROE permit dated 19 February 2013 that he had received appropriate training about the rights and responsibilities of permit holder.
2. Whether in order to obtain a ROE permit, Mr. Katsis made an inaccurate declaration for a ROE permit dated 12 March 2013 that he had received appropriate training about the rights and responsibilities of permit holder, namely the ACTU Federal Right of Entry online training course completed on 15 February 2013.
3. Whether the right of entry permit issued to Mr. Katsis should be revoked.

Mr. Steven Mitchell (RE 2013/585)

1. Whether Ms. Kimberley Kitching accessed Mr. Mitchell's ACTU ROE course on 15 February 2013.
2. Whether the right of entry permit issued to Mr. Mitchell should be revoked.

As to Ms. Jeanine Ghantous (RE 2013/1291)

1. Whether having regard to the duration of the training and testing Ms. Ghantous received, the FWC is satisfied that Ms. Ghantous received appropriate training in accordance with the requirements of the FW Act.
2. Whether the application for a right of entry permit should be refused for Ms. Ghantous.

As to Ms. Rose Charbel (RE 2013/1438)

1. Whether having regard to the duration of the training and testing Ms. Charbel received, the FWC is satisfied that Ms. Charbel received appropriate training in accordance with the requirements of the FW Act.
2. Whether the application for a right of entry permit should be refused for Ms. Charbel.
3. On 22 September 2014, Slater and Gordon, the then solicitors for Ms Kitching, applied to the Commission pursuant to s 586(a) to amend the Terms of Inquiry. Ms Kitching sought to delete paragraphs 1-16 of the Terms. It was asserted that the Commission did not have jurisdiction to investigate and rule upon such matters.
4. The application to amend was heard by the Commission on 14 October 2014, but it was not finalised. It was ultimately put over until 27 October 2014. 
5. On 22 October 2014, Slater and Gordon requested the instruments of delegation given to Mr Enright empowering him to exercise certain functions and powers under the Act relevant to the Enright inquiry.
6. On 24 October 2014, the requested delegation documents were provided.
7. Further, on that day, counsel for Ms Kitching filed additional submissions elaborating on the jurisdictional challenge. Holding Redlich also adopted those submissions on behalf of the Union and various officers and employees. 
8. On 27 October 2014, at the commencement of the hearing on the Terms of Inquiry, counsel for Ms Kitching requested that Vice President Watson provide a decision in relation to the application to amend before proceeding further. A decision on the amendment application necessarily involved Vice President Watson ruling on the jurisdictional challenge that had been made. Vice President Watson said:

I am mindful of the potential implications and the sensitivity of these matters. However, I am not sure when I will be able to give full consideration to the jurisdictional arguments that have been lodged and issue a decision in this matter. I consider that the more appropriate procedure is to commence to hear the evidence in this matter, and I will endeavour to give proper consideration to the arguments at the earliest opportunity.

1. In substance, Vice President Watson indicated that he was not then in a position to make a decision on the jurisdictional challenge, and that he was unable to say when he would be in a position to do so. Nevertheless, he was not prepared to adjourn the matter and indicated that the adducing of evidence on the Terms of Inquiry should proceed. 
2. Counsel told Vice President Watson that an application would be made to this Court challenging his decision to proceed in the absence of first determining whether he had jurisdiction. In those circumstances Vice President Watson adjourned the matter for a short time.
3. On 28 October 2014, the applicants filed an originating application in this Court challenging the Commission’s jurisdiction to proceed with the inquiry, including seeking interlocutory and permanent injunctions against the Commission from proceeding further.
4. On the same day, I granted an interlocutory injunction against the Commission restraining it from proceeding further, but only until it had first ruled on its jurisdiction to proceed ([2014] FCA 1156). Later that day, the Commission ruled that it had jurisdiction to proceed. 
5. On 29 October 2014, the Commission indicated that it would immediately commence to take evidence. On the same day, the applicants filed a further interlocutory application seeking an interlocutory injunction against the Commission that until the hearing and determination of this proceeding, the Commission be restrained from proceeding with the inquiry. In the applicants’ interlocutory application, the inquiry was identified by reference to the Terms of Inquiry issued by the Commission on 18 July 2014 (Inquiry). The latest version of the applicants’ originating application defines the Inquiry by reference to the 4 June 2014 directions, but it is more appropriate to define it by the Terms of Inquiry issued on 18 July 2014.
6. On 30 October 2014, I granted an interlocutory injunction in the terms sought.

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