Barry v Australian Broadcasting Corporation - [2002] NSWIRComm 14 - NSWIRComm 2002 case summary — Zoe

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Barry v Australian Broadcasting Corporation

[2002] NSWIRComm 14

Industrial Relations Commission (NSW)|2002-07-01|Before: Wright J, Walton J, Hungerford J

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Court

Industrial Relations Commission (NSW)

Decision date

2002-07-01

Before

Wright J, Walton J, Hungerford J

Source

Original judgment source is linked above.

Judgment (101 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Barry v Australian Broadcasting Corporation [2002] NSWIRComm 14 APPLICANT Paul Barry PARTIES : RESPONDENT Australian Broadcasting Corporation FILE NUMBER: IRC 767 of 2001 CORAM: Wright J President; Walton J Vice-President; Hungerford J Constitutional Law - State and Commonwealth statutes dealing with same subject matter - Inconsistency - Terms and conditions of employment determined under Commonwealth law - Application to vary contract of employment under unfair contracts provisions of State law - Whether application competent for want of jurisdiction - Inconsistency found. CATCHWORDS : Unfair Contract - Application by employee to vary contract of employment - Claim for payment of money in connection with contract so varied - Notice of motion to dismiss application for want of jurisdiction - State and Commonwealth statutes dealing with same subject matter - Terms and conditions of employment - Whether inconsistency between State and Commonwealth laws in constitutional sense - Inconsistency found. Commonwealth of Australia Constitution (Imp) s 109 Australian Broadcasting Corporation Act 1983 (Cth) s 5(1) s 6(1) s 25(1)(f) s 25(1)(h) s 32 s 33 Australian Meat and Live-stock Corporation Act 1977 (Cth) s 35 Australian Telecommunications Corporation Act 1989 (Cth) s 85 Broadcasting and Television Act 1942 (Cth) s 43(2) s 43(6) Broadcasting Legislation Amendment Act 1988 (Cth) s 8(1) LEGISLATION CITED : Judiciary Act 1903 (Cth) s 78B Postal Services Act 1975 (Cth) s 46(1) Workplace Relations Act 1996 (Cth) s 121(1) Anti-Discrimination Act 1977 (NSW) Industrial Arbitration Act 1940 (NSW) (repealed) s 88F Industrial Relations Act 1991 (NSW) (repealed) s 275 Industrial Relations Act 1996 (NSW) s 105 s 106 s 193(1)(b) Industrial Conciliation and Arbitration Act 1972 (SA) S 15(1)(e) Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 Australian Broadcasting Commission v Industrial Court (SA) (1977) 138 CLR 399 Beahan v Bush Boake Allen Australia Ltd (1999) 47 NSWLR 648, (1999) 93 IR 1 BNY Australia Ltd v James (1992) 26 NSWLR 57, [1992] 40 IR 1 Brown v Rezitis (1970) 127 CLR 157 Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557 Dao v Australian Postal Commission (1987) 162 CLR 317 Dawson v Telstra Corporation Ltd [1998] NSWIRComm 236 Dey v Victorian Railway Commissioners (1949) 78 CLR 62 Ex parte McLean (1930) 43 CLR 472 Felman v Law Institute of Victoria (1997) 142 FLR 362 Harrison v Australian Meat and Live-stock Corporation [1993] NSWIRC 87 CASES CITED : Huskisson RSL Sub-Branch Club Ltd v Sullivan (1990) 20 NSWLR 332, [1990] 32 IR 404 Inglis v Commonwealth Trading Bank of Australia [1972] 20 FLR 30 Lyons v Caltex Australia Petroleum Pty Ltd [2001] NSWIRComm 11 Makler v Australian Broadcasting Corporation (2001) 104 IR 260 McGowan v Australian Broadcasting Corporation (2001) 104 IR 244 Metrocall Inc v Electronic Tracking Systems Pty Ltd (2000) 101 IR 66 O'Sullivan v Noarlunga Meat Ltd (1956) 95 CLR 177 Reich v Client Server Professionals of Australia Pty Ltd (Administrator Appointed) (2000) 49 NSWLR 551, (2000) 99 IR 69 Residential Tenancies Tribunal (NSW) and Henderson, ex parte Defence Housing Authority (1997) 190 CLR 410 Stevenson v Barham (1977) 136 CLR 190 T A Robinson and Sons Pty Ltd v Haylor (1957) 97 CLR 177 Taudevin v Egis Consulting Australia Pty Ltd and the Commonwealth (No 1) [2001] NSWIRComm 340 Victoria v The Commonwealth (1937) 58 CLR 618 Visalli v Southwell (1988) 12 NSWLR 502 Williams v Hursey (1959) 103 CLR 30 HEARING DATES: 07/27/2001 DATE OF JUDGMENT: 02/15/2002

[54]

19 The focus of Mr Shaw's submissions against inconsistency in this case was on the common law contract of employment, including the employment arrangement and collateral arrangement as contemplated by the extended definition of "contract" in s 105 of the State Act, between the applicant and the respondent as the transaction under challenge and which was enforceable and otherwise subject to State law; the letter of agreement between the parties expressly provided as much. Senior counsel then made the following points - (1) An order under s 106 of the State Act providing for compensatory payments post-employment in the nature of restitution is analogous to common law damages for breach of contract and, by reason of the terms of the letter of appointment of the applicant here, such damages could be obtained from courts within the New South Wales jurisdiction. Any such order for payment would not be in direct collision with the determination made by the respondent under s 32 of the Commonwealth Act as to terms and conditions of employment but rather would be seen as a post-employment remedy and not something ordinarily dealt with as part of the terms and conditions of employment. (2) The adjudication under s 106 based upon the fairness or unfairness arising from the conduct of the parties in the operation of the contract of employment and resulting in an order for the payment of compensation for any wrongful or unfair conduct would not be in conflict with the powers of the respondent to determine employment conditions. (3) In further distinguishing this case from Australian Broadcasting Commission in terms of subject matter, and also from McGowan and Makler on the facts, there is the possibility the then Managing Director of the respondent would be joined to proceedings as a second respondent for his alleged interference in the contractual relationship in an unlawful or wrongful manner. If the relevant grounds of unfairness in that respect were made out then an order could be made under s 106 declaring the contract void and requiring the Managing Director personally to make a payment of money because of his unfair conduct: see Brown v Rezitis (1970) 127 CLR 157, Visalli v Southwell (1988) 12 NSWLR 502 per Kirby P at p 507 and Lyons v Caltex Australia Petroleum Pty Ltd [2001] NSWIRComm 11. In that situation, no such barrier from s 32 to the making of orders would exist. (4) Section 32 of the Commonwealth Act does not prevent an employee of the respondent from suing it for breach of contract of employment so that the section does not prevent orders being made under s 106 as compensation for the unfair conduct of the respondent, and which was in breach of the contract of employment, even though not permitted by its terms: see Reich v Client Server Professionals of Australia Pty Ltd (Administrator Appointed) (2000) 49 NSWLR 551 at p 567; (2000) 99 IR 69 at p 83 per Wright J, President, Walton J, Vice-President and Hungerford J. (5) It had not been demonstrated by the respondent that there was no potential for properly framed orders to be made under s 106 which would not be inconsistent with s 32 of the Commonwealth Act. The subject matter of the applicant's claim involves complex statutory interpretations and questions of law so that it is clearly inappropriate for summary dismissal on the basis of alleged jurisdictional challenge: see, for example, Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at p 92 and Inglis v Commonwealth Trading Bank of Australia [1972] 20 FLR 30. (6) The State law in s 106 operates concurrently with the federal law in s 32 of the Commonwealth Act. Accordingly, it was submitted there was no constitutional impediment by reason of s 109 precluding the Court from making any orders for relief pursuant to s 106 of the State Act.

[55]

20 We have quoted earlier the terms of s 109 of the Constitution. In Felman v Law Institute of Victoria (1997) 142 FLR 362 at p 381, the Court of Appeal (Vic) reviewed the concept of "inconsistency" for the purposes of s 109 in light of the developed High Court authorities and observed that it arose broadly in three situations: "(i) where simultaneous obedience to the law of the Commonwealth and to the law of the State is impossible; (ii) where the law of the State takes away or varies a right, privilege, duty, power or immunity conferred by a law of the Commonwealth (or, conversely, a law of the Commonwealth takes away or varies a right, privilege, duty, power or immunity conferred by law of the State); or (iii) where the law of a State invades a field which the law of the Commonwealth was intended to cover exhaustively". To a similar effect, a Full Bench of this Court had occasion to consider the question in Metrocall Inc v Electronic Tracking Systems Pty Ltd (2000) 101 IR 66 at pp 76-77 in pars [39]-[41] and said : [39] The High Court has generally formulated three broad approaches to determine the existence of inconsistency. Inconsistency is present where it is impossible to obey both laws, for example where one law requires X and the other forbids X (see for example, R v Brisbane Licensing Court; Ex Parte Daniell (1920) 28 CLR 23) or where one law purports to confer a legal right, privilege or entitlement which the other law purports to take away or diminish: see, for example, Colvin v Bradley Brothers Pty Ltd (1943) 68 CLR 151. Inconsistency may also arise where the Commonwealth law evinces a legislative intention to "cover the field" or that its law shall be all the law there is on that topic, even where there is not a direct contradiction between the two enactments, the State law will be inoperative to the extent that it seeks to operate within that field. The intention to "cover the field" may be express or implied: see, for example, Viskauskas v Niland (1983) 153 CLR 280.

[61]

23 On its face, s 32 is concerned only with the staffing arrangements of the respondent. By sub-s (1) thereof, the respondent is authorised to engage such employees as are necessary for the performance of its functions and the exercise of its powers - the functions are those set out in s 6 of the Commonwealth Act and relatively include as referrable to the applicant the provision of television services; and the powers are those specified in s 25(1)(f) to engage persons to perform services for it, together with the incidental powers in s 25(1)(h). There was no issue other than that the applicant was so engaged. Sub-section (2) then requires, and thereby impliedly empowers, the respondent to determine the terms and conditions of employment of employees engaged by it pursuant to sub-s (1). Mention should be made of s 33 of the Commonwealth Act which, in terms, is concerned for the respondent to achieve and maintain high standards as an employer in relation to the terms and conditions of employment so determined by it, as well as achieving such standards in relation to occupational health, industrial safety, industrial democracy, non-discriminatory employment practices and other matters. Apart from ss 32 and 33 appearing in Pt V - Employees of the Commonwealth Act, the statute does not contain any other provisions as to the engagement of the respondent's staff and the determination of their terms and conditions of employment. The only statutory provision impacting that situation would appear to be s 121(1) of the Workplace Relations Act 1996 (Cth) which empowers the Australian Industrial Relations Commission to make an award that is not, or may not be, consistent with a relevant law of the Commonwealth, such as Pt V of the Commonwealth Act. The important point to emphasise about the provisions of Pt V, including as to the determination of terms and conditions of employment in s 32(2) thereof, is that although there be a lack of detailed prescription the respondent is empowered to engage such employees as it considers necessary to discharge its functions and powers with a requirement on it to determine the terms and conditions of employment of such employees. That process in Commonwealth law is subject only to s 121(1) whereby an industrial award may be made inconsistent with a determination made by the respondent.

[62]

24 Section 106 of the State Act has about it all the appearances of a provision quite different in substance to that contained in Pt V of the Commonwealth Act. The section is concerned to confer power on this Court to deal with a particular aspect of the industrial relationship, albeit one of general application, namely, unfair contracts whereby a person performs work in any industry. The nature of the power so given has been the subject of much judicial attention over the years and was recently re-stated by the Full Bench in Reich v Client Server Professionals (49 NSWLR at pp 561-562; 99 IR at pp 77-78 in par [19]) as follows : Given the definitions of "contract" and "unfair contract" in s 105, the power exercisable by the Court under s 106 is to "make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any industry if the Commission finds that the contract is an unfair contract": sub-s (1). The impugned transaction (contract or arrangement, or any related condition or collateral arrangement) may be found to be unfair "at the time it was entered into or that it subsequently became an unfair contract because of any conduct of the parties, any variation of the contract or any other reason": sub-s (2). A declaration of avoidance or an order of variation may be made "either from the commencement of the contract or from some other time": sub-s (3). Where an order is made under the section, a further order may be made "as to the payment of money in connection with any contract declared wholly or partly void, or varied, as the Commission considers just in the circumstances of the case": sub-s (5). In the earlier case of Huskisson RSL Sub-Branch Club Ltd v Sullivan (1990) 20 NSWLR 332 at p 345; [1990] 32 IR 404 at p 414, the former Industrial Commission in Court Session ( Fisher P, Hill and Hungerford JJ) dealt with the scope of s 88F of the Industrial Arbitration Act 1940, the statutory predecessor to the present s 106 and relevantly in the same terms, to this effect : The subject matter of s 88F may be broadly characterised as dealing with the rights of a party or an interested person:

[72]

31 Dawson concerned an alleged inconsistency between s 106 of the State Act and s 85 of the Australian Telecommunications Corporation Act 1989 (Cth). Section 85 empowered Telecom (as meaning the Australian Telecommunications Corporation) to "engage such employees as are necessary for the performance of its functions" (sub-s (1)) and provided further that "the terms and conditions of employment shall be as determined by Telecom" (sub-s (2)). After citing from the authority of Australian Broadcasting Commission, Peterson J found no relevant distinction between that case and that before his Honour and added (at p 8) that "any order made with respect to the merits of the s 106 claim would purport to create a term or condition of employment which would be directly inconsistent with the power conferred on the employer by s 85, for, I think, exactly the reasons an inconsistency was found in the ABC Case". Significantly, his Honour rejected a submission that even if no order could be made under s 106 in relation to the capacity to declare void or vary the contract and to order the payment of money that it would be open to make a finding of unfairness; in doing so, Peterson J said (at p 9) : The substantive power conferred by s 106 lies in sub-s (1) which empowers the Commission in Court Session to declare a contract wholly or partly void or vary the contract ab initio or from some other time if it is found to be unfair in the relevant defined sense. Section 106(2) deals with the circumstances by which the Commission may find the contract to be unfair. That provision is facilitative but does not denigrate from the operative provisions of s 106(1) which provides the purpose for which a finding of unfairness will be made. In my view, in this respect as well, the position is very similar to that found in the South Australian Court of Appeal, namely that the purpose of a search for a finding of unfairness is to ground the relevant remedial powers and is not a remedy in itself.

[73]

32 Peterson J in McGowan was required to revisit the issue but there in a statutory context more directly related to the present case where an application for relief under s 106 to vary a contract of employment made with the Australian Broadcasting Corporation (also the present respondent) was said to be constitutionally inconsistent with s 32 of the Commonwealth Act so as to be invalid by reason of s 109 of the Constitution. His Honour referred (104 IR at pp 256-257 in pars [50]-[52]) to his earlier judgment in Dawson and to the patent similarity between s 85(2) there and s 32(2) of the Commonwealth Act. Then, after reviewing the decision in Dawson by reference to Australian Broadcasting Commission, his Honour found (104 IR at p 258 in pars [56]-[57]) "the conclusion is inevitable that aspects of the relief sought would raise a direct inconsistency with the power exercised pursuant to s 32 of the ABC Act" on the basis : ... that the authorities are clear that an attempt to invoke the Commission's jurisdiction to vary a contract which constitutes a determination of the kind provided for by s 32 of the ABC Act directly impinges upon and is inconsistent with a law of the Commonwealth: see Dawson . Those parts of the relief sought in these proceedings which seek to amend the contractual terms and so the obligations arising under the contract of employment, I consider must be viewed as beyond jurisdiction. An instructive feature of the reasoning of Peterson J in McGowan was his Honour's consideration of the question whether such a contract which may not be varied under s 106 may nevertheless be found relevantly unfair because of the conduct of a party. Here, of course, the applicant made a similar submission as to the implications of wrongful conduct by the respondent through its managing director so as to support an order for the payment of money. In disallowing such a submission, Peterson J stated (104 IR at pp 258-259 in pars [59]-[60]) : [59] This question involves the issue whether there is any room left for s 106 to operate not in relation to an amendment of the terms of employment but solely in relation to the alleged repudiatory conduct of the ABC and other consequential matters such as compensation for loss of opportunity, disappointment, distress, frustration, humiliation and upset. The cases in the line of authority referred to in the paragraphs preceding ... were decided prior to the amendment to s 106(2) prescribing that a contract (as defined) may become unfair by conduct. ...

[94]

40 It may be thought that the absence of detailed provisions in the Commonwealth statute considered in Australian Broadcasting Commission, and similarly in the Commonwealth Act here, would militate against inconsistency being found; certainly in the case of a finding of direct inconsistency but also in applying a "cover the field" approach because in fact the field had not been covered. For instance, in O'Sullivan v Noarlunga Meat (1954) 92 CLR 565, it was held by Dixon CJ, Fullagar and Kitto JJ that provisions of the regulations made under a Commonwealth statute, being as Fullagar J said (92 CLR at p 591) to be "an extremely elaborate and detailed set of requirements which must be complied with", covered the field of the regulation of premises for the slaughtering of livestock for export and so made constitutionally invalid the provisions of a State statute dealing with the same subject matter and even though there was no direct inconsistency because it was possible for both laws to be obeyed. This apparent conflict in determining constitutional inconsistency where the Commonwealth law displays a lack of detail was the subject of comment in Castan and Joseph Federal Constitutional Law: A Contemporary View (Lawbook Co, 2001) where the learned authors commented as follows (in par 6.3.2 at p 178) : In T A Robinson v Haylor (1957) 97 CLR 177, a Commonwealth award made under the Conciliation and Arbitration Act 1904 (Cth) regulated employment in the footwear industry. It made no provision for workers' entitlements to long service leave. The Long Service Leave Act 1955 (NSW) gave workers an entitlement to paid leave after ten years of employment. The High Court found that the omission of any provision for long service leave demonstrated that the Commonwealth had not intended to oust any relevant state provisions regarding matters such as long service leave entitlements. Similarly, in Ansett v Wardley (1980) 142 CLR 237, the incompleteness of the federal law was found by the majority to indicate a lack of intention to cover the field (see Stephen J at 247-248). Thus, Robinson and Ansett appear to conform to the O'Sullivan requirement of a sufficient level of detail in the Commonwealth Act before an intention to exclude State law will be found. The authors then contrasted the High Court's decision in Australian Broadcasting Commission and commented that the rationale appeared to be as explained by Mason J in that case (138 CLR at p 417), namely : The absence of detailed provisions applying to them is not an indication that it is contemplated that other laws will apply to them, but rather that the employer has an unqualified authority to make decisions affecting their employment and the termination of their services.

Barry v Australian Broadcasting Corporation

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