Messenger v Commonwealth of Australia (Represented by the Department of Finance)

• Jurisdiction: Australia Federal only
• Judgment Date: 10 June 2022
• Neutral Citation: [2022] FCA 677
• Date: 10 June 2022
• Court: Federal Court

Federal Court of Australia

Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677

File numbers:	TAD 28 of 2017 TAD 32 of 2017
Judgment of:	SNADEN J
Date of judgment:	10 June 2022
Catchwords:	INDUSTRIAL LAW – employment – adverse action – related matters – applicants in the two matters husband and wife – applicants employed by first respondent – applicants engaged and supervised in their employment by second respondent – second respondent a member of the Australian Senate – applicants subjected to “show cause” processes – whether show cause processes amounted to adverse action – applicants dismissed from employment – whether applicants made complaints or inquiries that they were able to make in relation to their employment – whether applicants made complaints or inquiries that they were able to make to persons that had the capacity under workplace laws to seek compliance with such laws or with workplace instruments – whether adverse action taken because of complaints or inquiries – whether applicants entitled to payment in lieu of notice upon termination of employment – whether dismissal effected in contravention of enterprise agreement – whether second respondent intended to coerce successor member of the Australian Senate into not employing applicants – applications dismissed
Legislation:	Fair Work Act 2009 (Cth) ss 12, 50, 51, 323, 340, 341, 342, 355, 360, 361, 539, 550, 793, 795 Members of Parliament (Staff) Act 1984 (Cth) ss 13, 16, 20, 23 Public Interest Disclosure Act 2013 (Cth) ss 8, 13, 19, 22, 26, 29, 69, Superannuation Guarantee (Administration) Act 1992 (Cth) Work Health and Safety Act 2011 (Cth) s 19 Fair Work Regulations 2009 (Cth) regs 1.07, 6.08, 6.09
Cases cited:	Alam v National Australia Bank [2021] FCAFC 178 Auimatagi v Australian Building and Construction Commissioner (2018) 267 FCR 268 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 267 IR 130 Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347 Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2010) 193 IR 251 Blyth Chemicals v Bushnell (1933) 49 CLR 66 Carter v Dennis Family Corporation [2010] VSC 406 Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46 Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 Community and Public Sector Union v Telstra (2000) 101 FCR 45 Concut Pty Ltd v Worrell (2000) 176 ALR 693 Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 Cook v Australian Postal Corporation (2018) 264 FCR 72 Coope v LCM Litigation Fund Pty Ltd (2016) 333 ALR 524 Cummins South Pacific Pty Ltd v Keenan (2020) 302 IR 400 Eldridge v Wagga Wagga City Council [2021] NSWSC 312 Esso Australia Pty Ltd v Australian Workers’ Union (2017) 263 CLR 551 Esso Australia Pty Ltd v Australian Workers’ Union (2015) 245 FCR 39 Fair Work Ombudsman v Australian Workers Union (2017) 271 IR 139 Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liq) (No 4) [2021] FCA 1242 Fair Work Ombudsman v Maritime Union of Australia (2014) 243 IR 312 Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75 Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22 Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427 Laws v London Chronicle Ltd (1959) 1 WLR 698 LCM Litigation Fund Pty Ltd v Coope [2015] NSWSC 992 National Tertiary Education Industry Union v University of Sydney [2020] FCA 1709 National Tertiary Education Industry Union & Anor v University of Sydney (2021) 392 ALR 252 PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225 Rankin v Marine Power International Pty Ltd (2001) 107 IR 117 Ryder v Aphrodite Gold Ltd [2017] WASC 377 Sabapathy v Jetstar Airways [2021] FCAFC 25 Salama v Sydney Trains [2021] FCA 251 SBP Employment Solutions Pty Ltd v Smith [2021] FCA 601 Sent v Primelife Corporation Ltd [2006] VSC 445 Serventi v John Holland Group Pty Ltd [2006] FCA 1049 Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346 Tattsbet Ltd v Morrow (2015) 233 FCR 46 The Environment Group Pty Ltd v Bowd (2019) 137 ACSR 352 Universe Tankships Inc of Monrovia v International Transport Workers Federation [1983] 1 AC 366 Wong v National Australia Bank & Anor [2021] FCA 671
Division:	Fair Work Division
Registry:	Tasmania
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	416
Date of last submissions:	19 March 2021 (respondents) 7 May 2021 (applicants)
Date of hearing:	19-30 October 2020, 8-11 February 2021, 31 May-1 June 2021
Counsel for the Applicants:	The applicants appeared in person
Counsel for the First Respondent:	Ms J. Firkin QC with Mr C. McDermott
Solicitor for the First Respondent:	Ashurst Australia
Counsel for the Second Respondent:	Mr N. Harrington
Solicitor for the Second Respondent:	DLA Piper Australia

ORDERS

		TAD 28 of 2017
BETWEEN:	ROBERT DESMOND MESSENGER Applicant
AND:	THE COMMONWEALTH OF AUSTRALIA (REPRESENTED BY THE DEPARTMENT OF FINANCE) First Respondent ; JACQUILINE LOUISE LAMBIE Second Respondent

order made by:	SNADEN J
DATE OF ORDER:	10 June 2022

THE COURT ORDERS THAT:

1. The application be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

		TAD 32 of 2017
BETWEEN:	FERN ASHLEIGH MESSENGER Applicant
AND:	THE COMMONWEALTH OF AUSTRALIA (REPRESENTED BY THE DEPARTMENT OF FINANCE) First Respondent ; JACQUILINE LOUISE LAMBIE Second Respondent

order made by:	SNADEN J
DATE OF ORDER:	10 June 2022

THE COURT ORDERS THAT:

1. The application be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Part 1: Overview	[1]
Part 2: The proceedings	[9]
Part 3:...