Blue Ribbon Products Pty Ltd v Tasmanian Industrial Commission

Blue Ribbon Products Pty Ltd v Tasmanian Industrial Commission - [2004] TASSC 28 - TASSC 2004 case summary — Zoe

[89]

40 Counsel for the applicants suggested that a power to make orders binding upon entities other than employers could have alarming and inappropriate consequences. Mr O'Farrell submitted that if the Commission had powers to bind non-employers in disputes relating to the termination or proposed termination of employment, it could make an order requiring a bank to reverse a decision to cancel an employer's overdraft, or make an order restraining a human resources consultant from recommending changes that might produce efficiencies by requiring less labour, or make an order requiring a profitable subsidiary company to provide financial support to an unprofitable holding company wishing to reduce its workforce. Counsel for Newemploy, Mr McDermott, suggested that such an interpretation could result in the Commission ordering a customer of an employer not to withdraw an order whose withdrawal might result in the reduction of the employer's workforce, or to making an order compelling a supplier to continue providing supplies to an employer against its will. There are a number of answers to these suggestions. If the power to make orders in such situations existed, it is hardly likely that the Commission would make orders that were unfair to the sorts of entities referred to by counsel, given the requirement of s20(1)(a) to "act according to equity, good conscience, and the merits of the case", the requirement of s20(1)(b) to "do such things as appear ... to be right and proper", and the provisions in s30(3)(b) whereby the operational requirements of an employer's business can result in the termination of an employee's employment being permissible even when that employee has a reasonable expectation of continuing employment. More fundamentally, it is necessary to draw a distinction between decisions made by employers and others as to industrial relations questions and decisions made by employers and others as to other questions that have industrial relations consequences. The general words of the Act should "be understood in their context as applying only in the area of industrial relations": Federated Clerks' Union of Australia v Victorian Employers' Federation (supra) per Gibbs CJ at 480. A commissioner's power under s31(1) to order that a "thing is to be done", or that an "action is to be taken" must be understood as limited to things and actins in the area of industrial relations.

[90]

41 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.

[110]

51 It seems that neither Mr Hadden nor counsel for Blue Ribbon had attended the hearing prior to 22 May 2003. As soon as the Commissioner learned that the AMIEU was suggesting that an order might be made against Blue Ribbon, her common law duty of procedural fairness required her to cause Blue Ribbon to be notified of the relevant facts and afforded an opportunity to participate in the proceedings. She could have directed that Blue Ribbon be summoned to attend the proceedings pursuant to s21(2)(b) in the discharge of that duty of procedural fairness, but Mr Hadden received a summons instead. Blue Ribbon was sent the notices of hearing dated 3 June 2003 and 18 June 2003, each signed by the Acting Registrar. Each incorrectly stated "the President hereby convenes a hearing ...", whereas the only convening done by the President in relation to the proceedings was prior to the commencement of the hearing on 8 April 2003. In par3 of her reasons of 1 October 2003, the Commissioner incorrectly asserted that the notice of 3 June 2003 had been served pursuant to s29(2)(b). A notice is given pursuant to that provision only if the President has caused it to be given, but the President did not cause the notice of 3 June 2003 or the notice of 18 June 2003 to be given to Blue Ribbon. However I do not think that the Acting Registrar's false assertions as to the involvement of the President in the convening of the continued hearing, or the Commissioner's mistake as to the notice of 3 June 2003 having been given pursuant to s29(2)(b), make any difference as to the validity or propriety of the final orders. The Commissioner had the power to continue the hearing without any step being taken by the President. Once Blue Ribbon was represented at the hearing, provided all requirements as to procedural fairness were satisfied, no action on the part of the President was necessary in order to bring Blue Ribbon within the Commissioner's jurisdiction. There is no suggestion that the false assertion in the Acting Registrar's notices as to the activities of the President made a difference as to the steps Blue Ribbon took in relation to the proceedings. The conclusions reached by the Commissioner were not affected by her mistake as to whether the notice of 3 June 2003 was one pursuant to s29(2)(b).

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (126 paragraphs)

Blue Ribbon Products Pty Ltd v Tasmanian Industrial Commission (No 2) [2004] TASSC 28 (29 March 2004)

Parties

Legislation Cited (2)

Cases Cited (9)