Before either of the investigations had been finalised, he issued a proceeding in the Supreme Court of Victoria to restrain the SRO from completing the investigations on the basis that they had not been conducted in accordance with the Victorian Public Service Enterprise Agreement. In that proceeding he also sought a declaration that the SRO had contravened section 50 of the Fair Work Act 2009 (Commonwealth) by failing to comply with the enterprise agreement on investigations and sought pecuniary penalties as a result.
This was despite the fact that under the Fair Work Act the Supreme Court did not have jurisdiction to impose pecuniary penalties. After a lengthy battle in the Supreme Court, which included an appeal to the Victorian Court of Appeal, Mr Tucker obtained his declaration that the SRO had indeed contravened section 50 of the Fair Work Act in that the investigations had not been conducted in accordance with the enterprise agreement.
Armed with his declaration Mr Tucker then commenced a proceeding in the Federal Court seeking payment of pecuniary penalties for the SRO’s contravention of section 50 of the Fair Work Act.
He immediately struck a problem.
The SRO successfully argued that the Federal Court proceeding should be summarily dismissed because it was bound to fail. That failure lay in the fact that the Supreme Court had already decided issues on which the claim for pecuniary penalties was based and therefore cause of action estoppel applied.
Had Mr Tucker brought his proceeding in the Federal Court in the first place he could have obtained his declaration of a contravention of section 50 of the Fair Work Act based on his complaint about the SRO’s breach of the enterprise agreement and been able to be awarded pecuniary penalties for that contravention.
It is a cautionary tale of ensuring that a proceeding is issued in the Court which can give you all the relief to which you claim to be entitled. A summary of the history of the litigation between Mr Tucker and the SRO and the decision on cause of action estoppel can be found in Tucker v Broderick & Anor [2022] FCAFC 174.
Our experienced litigation and workplace relations team at Nevett Ford is able to assist to ensure that claims are made so that the maximum effect is produced. You can contact our team on (03) 9614 7111 or melbourne@nevettford.com.au for further advice and assistance.