Blue Ribbon Products Pty Ltd v Tasmanian Industrial Commission [2004] TASSC 142

Blue Ribbon Products Pty Ltd v Tasmanian Industrial Commission [2004] TASSC 142 - TASSC 2004 case summary — Zoe

[19]

7 On 4 April 2003, the Union applied to the President of the Commission, pursuant to the Act, s29(1), for a hearing before a Commissioner in respect of an industrial dispute with Newemploy arising out of the alleged unfair termination of its employment of the employees. Pursuant to s29(2), the President allocated the application to a Commissioner for a hearing, which extended on a number of days until 18 August 2003. Those who appeared before the Commissioner included the Union, Newemploy, the Tasmanian Trades and Labor Council and the Minister for Justice and Industrial Relations. Foreseeing that difficulties might arise if an order for reinstatement of employment by Newemploy was made but the appellant would not be bound by such an order, the Union foreshadowed on 22 May 2003 that it would seek orders against the appellant as well. Subsequently, the Union submitted that the appellant should become a party to the dispute. At a hearing on 2 June 2003, the appellant was represented by counsel, who objected on the basis that the Act contained no power to join a party and the proceedings were so far advanced that the appellant's position would be prejudiced. The Commissioner noted that under s27(5), a person having a direct interest in any proceedings could apply for leave to appear and be heard in the proceedings, and considered that in light of the Union's foreshadowed application for orders against the appellant, the interests of justice dictated that the appellant be given an opportunity to be heard and participate in the proceedings. The Commissioner ordered that the hearing be adjourned for 28 days; that notice be served on the appellant to attend on the next hearing day; that if the appellant wished to recall any witnesses who had already given evidence, it could do so; that if the appellant intended to call witnesses, it should file their statements; and that the appellant be provided with copies of the transcript, witnesses' statements and exhibits. On 30 June 2003, counsel formally sought, and was granted, leave to appear on behalf of the appellant. It chose not to present evidence or to have witnesses recalled, but it did provide written submissions and its counsel appeared before the Commissioner on its behalf.

[92]

"Mr O'Farrell relied on the maxim generalia specialibus non derogant. He submitted that s31(1) is a general provision as to the making of orders for preventing or settling industrial disputes; that s31(1B) makes specific provision as to the orders that may be made in relation to a dispute as to unfair dismissal; and that it follows that no orders may be made in relation to such a dispute other than orders of the types referred to in s31(1B), each of which (reinstatement, re-employment or compensation) relates to something required only of an employer. In my view that conclusion does not follow. It is true that s31(1B) is a specific provision which limits the powers of the Commission to make orders to settle disputes as to the termination of employment. However it is necessary to consider the extent to which Parliament intended the Commissioner's powers to be limited in such cases. Prior to the 1997 amendments, a claim by a former employer for compensation for an allegedly unfair dismissal, unaccompanied by a claim for reinstatement or re-employment, was not capable of being the subject of an industrial dispute within the meaning of the Act: New Town Timber & Hardware Pty Ltd v Gurr (supra). The 1997 amendments enabled all claims by former employees for reinstatement, re-employment or compensation to be regarded as the subjects of industrial disputes, and dealt with by the Commission. The 1997 amendments introduced an earlier version of s31(1B), empowering a commissioner to make an order requiring an employer to pay compensation to an employee if he or she considered that the employee had been unfairly dismissed and that reinstatement was impracticable. Until the commencement of the 2000 amendments, there was no express requirement that a commissioner not order compensation instead of reinstatement or re-employment only if reinstatement or re-employment was impracticable. That requirement was introduced, in s30(10), by the 2000 amendments. Those amendments also introduced s30(9), which provides that the "principal remedy" in such cases is reinstatement or re-employment, and the present s30(1B), which expressly provides for reinstatement or re-employment to be ordered if the commissioner believes such a course to be appropriate, and for compensation to be ordered if the commissioner believes reinstatement or re-employment is impracticable. The evident intention of Parliament was to prevent commissioners from too readily ordering the payment of compensation for the loss of a worker's employment, by requiring the ordering of reinstatement or re-employment whenever such a course was appropriate or not impracticable. It does not follow that Parliament intended a commissioner ordering reinstatement not to have the power to make an ancillary order, or an order that went further than simply ordering the employer to reinstate the employee. For example, I do not think it would follow that a commissioner may not now make an order that a reinstated employee be treated as having seniority or career progression rights as if his or her employment had not been terminated or interrupted. More significantly, there is nothing in the history of the legislation nor either of the relevant second reading speeches (House of Assembly, 29 April 1997, 31 August 2000) to suggest that Parliament did not intend commissioners to have whatever power s31(1) confers to make ancillary orders or wider orders in such cases, including orders binding persons or entities other than employers."

[167]

"Reliance was placed in argument upon what was said to be a general principle of construction that, where a statute takes away or interferes with common law rights, then it should be given, if possible, a narrow interpretation. See, for example, Melbourne Corporation v Barry [1922] HCA 56; (1922) 31 CLR 174 at 206. The generality of that assertion of principle requires some qualification. It is true that courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 437; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 492 [30]. It is also true that there is a presumption, relevant for example to the construction of privative clauses, that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied. Public Service Association (SA) v Federated Clerks' Union [1991] HCA 33; (1991) 173 CLR 132 at 160; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 492-493 [32]. However, as McHugh J pointed out in Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at 284 [36] modern legislatures regularly enact laws that take away or modify common law rights. The assistance to be gained from a presumption will vary with the context in which it is applied. For example, in George Wimpey & Co Ltd v British Overseas Airways Corporation [1955] AC 169 at 191, Lord Reid said that in a case where the language of a statute is capable of applying to a situation that was unforeseen, and the arguments are fairly evenly balanced, 'it is ... right to hold that ... that interpretation should be chosen which involves the least alteration of the existing law'. That was a highly qualified statement and, if it reflects a presumption, then the presumption is weak and operates only in limited circumstances.

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Blue Ribbon Products Pty Ltd v Tasmanian Industrial Commission [2004] TASSC 142 (7 December 2004)

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