Federal Court declaratory relief: Dental Corporation v Moffet

There has been a lot of talk about what Dental Corporation v Moffet [2020] FCAFC 118 means for the employee/contractor distinction. However, Dental Corporation’s recent application for special leave to appeal to the High Court raises another interesting issue, namely: whether the Federal Court had jurisdiction to make a declaration about the application of subsection 12(3) of the Superannuation Guarantee (Administration) Act 1992 (Cth) (SGAA), which is the provision that deals with the definition of ‘employee’ for superannuation purposes.

Subsection 39B(1A)(c) of the Judiciary Act 1903 (Cth) (Judiciary Act) confers jurisdiction upon the Federal Court in relation to any ‘matter’ arising under any laws made by Parliament. Subsection 12(3) of the SGAA is undoubtedly a law made by Parliament. However, there also needs to be a matter, before the Federal Court’s jurisdiction will be enlivened.

The Full Court of the Federal Court (Jagot, Kerr and Anderson JJ) recently provided a neat summary of the authorities as to when there will be a ‘matter’ for the purposes of the Judiciary Act in Clarence City Council v Commonwealth of Australia [2020] FCAFC 134 at [50]–[56]. In doing so, the Full Court referred to the joint judgement of Gleeson CJ and McHugh J in Abebe v Commonwealth [1999] HCA 14 at [31]:

[…] If there is no legal remedy for a “wrong”, there can be no “matter”. A legally enforceable remedy is as essential to the existence of a “matter” as the right, duty or liability which gives rise to the remedy. Without the right to bring a curial proceeding, there can be no “matter”. If a person breaches a legal duty which is unenforceable in a court of justice, there can be no “matter”. Such duties are not unknown to the law.

The superannuation guarantee is an example of a legal duty which is unenforceable as between employer and employee. Further, there appears to be no right in an employee to compel the Commissioner of Taxation (Commissioner) to take action in respect of superannuation which the employee alleges is unpaid or underpaid. As Besanko J said in Kronen v Federal Commissioner of Taxation [2012] FCA 1463 (Kronen) at [50]:

The insuperable difficulty for the applicant in this case is that I do not think the SGAA contains a scheme which gives him a right or imposes a duty on the respondent [Commissioner]. The words in s 36 (and s 37 if that be relevant) [about assessments] are wholly permissive and it is the employer who is given the right to object. Furthermore, there is no section which provides a trigger to an obligation on the respondent to hear and decide a claim by an employee that his or her employer was not making superannuation contributions according to law. The fact that there might be an administrative structure (that is, employee notification) does not confer a right on the applicant to require the respondent to take action or impose a duty on the respondent to do so. Section 45A (if it be relevant) did not create a duty to hear and determine.

Kronen was cited with approval by the Federal Court in Oze-Igiehon v Uber Technology Inc [2017] FCA 1024 at [4], in which Gilmour J stated at [15]-[16] that while ‘the obligation to pay superannuation necessarily depends upon a person being an employee’, it is not an entitlement derived from the contract of employment, but rather, a liability arising under the SGAA. Only the Commissioner has standing to recover a shortfall in the discharge of that liability. Kronen was also cited with approval by the Full Court of the Federal Court in Australian Workers’ Union v Bluescope Steel (AIS) Pty Ltd [2019] FCAFC 84 at [19] (Allsop CJ).

Clearly, the SGAA is enforceable by the Commissioner. If an employer fails to make appropriate superannuation contributions, the Commissioner can collect and recover shortfalls under Part 6 of the SGAA, and then pay the amount to the employee’s superannuation fund for their benefit in accordance with Part 8 of the SGAA. However, there is nothing within the SGAA that provides scope for direct action by an employee vis-à-vis an employer.

The Commissioner was not a party to this case. Therefore, a critical question for the purpose of the special leave application is: was there a ‘matter’?


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