CFMEU (NSW) (o-b of Hemsworth) v Brolrik Pty Ltd t-as Botany Cranes & Forklift Services

CFMEU (NSW) (o-b of Hemsworth) v Brolrik Pty Ltd t-as Botany Cranes & Forklift Services - [2007] NSWIRComm 205 - NSWIRComm 2007 case summary — Zoe

[19]

4 The respondent accepted that, for the purposes of the resolution of the issue for adjudication, the applicant's chronology of events should serve as a factual framework for the adjudication of the issues in the matter. The key aspects of the chronology for the purposes of the present issue are as follows: (a) The applicant, Mr Hemsworth, commenced employment with the respondent as crane driver in February 1996. (b) In early 2006, the applicant instituted a Job Site Risk Analysis ("JSA") as an occupational health and safety risk assessment process, and then raised concerns about the JSA process with the respondent's OHS&E Manager, Managing Director, and with representatives within the CFMEU. (c) Following further consultations (with involvement from the CFMEU) about the applicant's concerns with both staff and senior management at the respondent corporation, the applicant was given two written warnings, on 16 June and 19 June 2006, based on his failure to complete relevant JSA forms. (d) Having requested that he be excused from attending a WorkCover meeting at the respondent corporation on the basis of his concerns about workplace safety, the applicant was advised orally on 30 August 2006 that he was dismissed. (e) On 5 September 2006, the CFMEU wrote to the respondent, outlining continuing concerns relating to the JSA process. The applicant was then formally dismissed, in writing, by the respondent on 6 September 2006. (f) On 15 September 2006, the CFMEU lodged the application for relief from victimisation under s 210(1)(j) of the Act. 5 All of the parties, including the respondent, accepted that, for the purposes of the resolution of the present issue, the applicant's substantive claim should be taken at its highest. Accordingly, the Commission has determined this matter on the basis that Mr Hemsworth's claim concerns victimisation by the respondent, as a result of the termination of his employment following a complaint about a workplace matter which he considered was "not safe or a risk to health", as contemplated by s 210(1)(j) of the Act.

[31]

Note: Part 15 (Right of entry) sets prerequisites for a trade union representative to enter certain premises under a right given by a prescribed law of a State or Territory. The prerequisites apply even though the law deals with such entry for a purpose connected with occupational health and safety and paragraph (2)(c) says this Act is not to apply to the exclusion of a law dealing with that. "State or Territory industrial law" is defined in s 4 of the WR Act as: State or Territory industrial law means: (a) any of the following State Acts: (i) the Industrial Relations Act 1996 of New South Wales; (ii) the Industrial Relations Act 1999 of Queensland; (iii) the Industrial Relations Act 1979 of Western Australia; (iv) the Fair Work Act 1994 of South Australia; (v) the Industrial Relations Act 1984 of Tasmania; or (b) an Act of a State or Territory that applies to employment generally and has one or more of the following as its main purpose or one or more of its main purposes: (i) regulating workplace relations (including industrial matters, industrial disputes and industrial action, within the ordinary meaning of those expressions); (ii) providing for the determination of terms and conditions of employment; (iii) providing for the making and enforcement of agreements determining terms and conditions of employment; (iv) providing for rights and remedies connected with the termination of employment; (v) prohibiting conduct that relates to the fact that a person either is, or is not, a member of an industrial association (as defined in section 779); or (c) an instrument made under an Act described in paragraph (a) or (b), so far as the instrument is of a legislative character; or (d) a law that: (i) is a law of a State or Territory; and (ii) is prescribed by regulations for the purposes of this paragraph. 13 The relevant State provisions are ss 210(1)(j) and 213 of the Act, which provide: 210 Freedom from victimisation (1) An employer or industrial organisation must not victimise an employee or prospective employee because the person:

[38]

20 We have quoted earlier the terms of s 109 of the Constitution. In Felman v Law Institute of Victoria (1997) 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 a 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 (200) 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, privelege 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 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 ....... [41] The Court also affirmed the principles laid down by Dixon J in Victoria v The Commonwealth (1937) 58 CLR 618 that where a State law would "alter, impair or detract from the operation" of a Commonwealth law, then to that extent it is invalid, and, secondly, that if it appears from the nature of the federal enactment that it is intended to be a "complete statement of the law governing a particular matter or a set of rights and duties, then for a State law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the Commonwealth law and so is inconsistent." We affirm the position there stated as representing our understanding of the proper approach to apply.

[56]

41 The Minister submitted that the provisions in the Act fall within the exceptions contained within ss 16(2) and (3) and, thus, avoid the exclusion provided for in s 16(1). He contended that s 210(1)(j), and s 213 (to the extent that it provides for enforcement in relation to s 210(1)(j)), clearly "deals with" one of the "non-excluded matters" set out in s 16(3), namely, "occupational health and safety" (s 16(3)(c)). 42 The Minister based this argument on a number of grounds: (a) The word "matter" has been defined as being "the subject matter for determination in a legal proceeding": O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 282, per Dean , Gaudron and McHugh JJ. In this instance, the subject matter of present proceedings clearly relates to occupational health and safety, given that the phrase "occupational health and safety" refers to the securing and promotion of health, safety and welfare of people at work, and the protection of persons at a place of work, against risks to health or safety arising out of the activities of persons at work: Re Transport Industry at [152]. (b) The Minister relies upon the decision in Re Transport Industry to suggest that specific occupational health and safety legislation is not required, and that s 210(1)(j) ought to be characterised as a relevant "non-excluded matter" as all statutory provisions which deal with, or relate to, occupational health and safety can be so characterised. The Minister also refers to Re Transport Industry in support of the contention that the legislature, in s 16, has expressed an intention to protect and preserve existing laws, " or parts of laws ", that deal with occupational health and safety. Further, the Minister notes that ss 16(2) and (3) do not refer to particular, named statutes on the relevant subject matters to confine the meaning of "non-excluded matters" in the manner contended by the respondent. (c) Reference is also made to the legislative history of s 210(1)(j), with the Minister submitting that this provision originates in occupational health and safety legislation, and is directed towards the objective the OH&S Act of effective consultation in relation to health and safety in the workplace. Further, the Minister notes that there are analogous provisions within the OH&S Act, and suggests that it would be an "absurd" proposition if those provisions, which have the same objectives and legal effect as the provisions within the Act, were characterised as laws dealing with occupational health and safety, whilst the provisions within the Act were not able to be characterised in the same way.

[57]

43 The applicant also submitted that, whilst ss 210 and 213 are not within a stand alone occupational health and safety statute, both provisions "deal with" occupational health and safety, in the sense contemplated by ss 16(2) and (3), and are thus excluded from the operation of s 16(1). The applicant made the following submissions in this regard: (a) The applicant considers the meaning of "deals with" (in s 16(2)(c)), referring to the decision in Re Transport Industry , and also the word "matter" (in ss 16(2)(c) and (3)), indicating that s 210(1)(j) defines the scope of the "matter" in respect of which the applicant seeks relief; namely, as an occupational health and safety matter. The applicant refers to a similar definition of "occupational health and safety" to that which is set out by the Minister, derived from Re Transport Industry . (b) The applicant refers to the decision in Re Transport Industry in support of the contention that the phrase "occupational health and safety" is not limited to reference to specific legislation on that subject matter, but refers to all provisions on that subject matter. (c) The applicant also refers to the legislative history of s 210(1)(j), with similar contentions to those of the Minister, suggesting that the provision is an essential component of occupational health and safety legislation, and for the promotion of health, safety and welfare at work. It is said by the applicant to be "crucial" in ensuring that effective consultation takes place, as one of the stated objectives of the OH&S Act. The Decisions in Re Transport Industry and Endeavour Coal 44 Whether or not a relevant provision of the Act "deals with" a "non-excluded matter", for the purposes of ss 16(2) and (3), and is, thus, excluded from the operation of s 16(1), despite the fact that the provision is not contained within specific legislation prescribing that "matter", has been previously considered in Re Transport Industry and, more recently, in Endeavour Coal. In both those matters, it was ultimately determined, although in the context of the Commission's award-making power under ss 10 and 11 of the Act (and, in Endeavour Coal, with respect to the subject matter of long service leave), that provisions of the Act may fall within ss 16(2) and (3), albeit that they are not contained within statutes which directly prescribe the relevant subject matters.

[68]

48 The Commission concluded as follows (at [146] - [147]): 146 For present purposes, therefore, we consider that s 10, at least to the extent that it has been interpreted as allowing the Commission to make award provisions relating to the health and safety of employees, falls within the exception in ss 16(2)(c) and (3)(c). Section 10 therefore, for this purpose, deals with occupational health and safety matters. Accordingly we are satisfied that s 16(1) does not operate to restrict the Commission from making award provisions relating to occupational health and safety matters. 147 We are fortified in reaching this conclusion by reference to the purpose of the exception in ss 16(2) and (3)(c). As already mentioned, it is clear that the legislature sought to protect certain existing laws, including those relating to occupational health and safety, from the operation of s 16(1). We consider that there is a clear public policy reason for doing so, namely the ongoing concern to eradicate, where possible, risks to the health and safety of employees in the workplace. The legislature has referred generally to occupational health and safety laws and has not sought to narrow that reach. Accordingly, we consider that the purpose was to retain all existing laws relating to occupational health and safety that would otherwise be ousted by the exclusion in s 16(1). We repeat our view that this purpose is also apparent from the fact that the WR Act does not purport to regulate occupational health and safety matters as there are no specific provisions in the WR Act regulating such matters. 49 In Endeavour Coal, the Court initially dealt with the argument by the applicants in that matter, that the exceptions in ss 16(2)(c) and (3)(f) needed to be read so as to give effect to the intention expressed by the legislature in s 16(1) that the WR Act is to operate to the exclusion of State and Territory laws, subject to the exceptions in ss 16(2) and (3). Thus, those matters which had been excluded from the operation of s 16(1) were excluded for the express purpose of enabling the State, by statute, to put in place a statutory minimum provision across that State, and not in order to allow determination by arbitration of general conditions of employment or employees relating to those matters. As the Court noted, the implication of the applicants' argument was that, in the context of long service leave, only a specific statute such as the Long Service Leave Act 1955 would fall outside the general exclusion in s 16(1).

[72]

47 The judgment in Unilever related to the expression "deals with" in the context of s 41 of the Act and contained the following analysis: It is now appropriate to return to Unilever's first or primary argument in this part of its submissions. This issue involves initially considering the operation of s 41(1) of the Industrial Relations Act on the provisions of the enterprise agreement and the award relevant to the s 154 application, the crucial phrase in s 41(1) is "that dealt with". This phrase, or variants of it, is used in many parts of the statute in a number of different senses. Because of its frequent and differing uses in everyday English, dictionary definitions of the phrase "deal with" are not of great use nor would be any attempt to seek definitive assistance in comparing and contrasting the phrase in the various parts of the statute. Notwithstanding these caveats it is appropriate to look to dictionaries for some guidance. The Chambers English Dictionary has been described by the former President of the New Zealand Court of Appeal and Law Lord (Lord Cooke) as the best single volume English Dictionary. Its seventh edition (1990) defines "deal with" as "to have to do with, to treat of, to take action with regard to". The entry in the Macquarie Dictionary , ( 1st Ed, 1981) , provides the following four meanings of "deal" used as an intransitive verb: "1 . to occupy onself or itself (fol. by with or in ): deal with the first question, botany deals with the study of plants . 2. to take action with respect to a thing or person (usu. fol. by with ): law courts must deal fairly . 3. to conduct oneself towards persons deal fairly. 4. to trade or do business: to deal with a firm, to deal in an article" [77] These references show that the meaning of the phrase "deals with" depends essentially on its context. For example, it is plain that the second, third and fourth meanings from the Macquarie Dictionary and the last of the meanings in the Chambers English Dictionary are not relevant to the present issue. One needs to concentrate on the kind of meaning exemplified by the first Macquarie Dictionary definition (the current edition -- 1997 of the Macquarie Dictionary is in similar, albeit simplified, terms). Reference, in the context of the first Macquarie definition, to the internet site Thesaurus.com is useful. There are 29 entries there for the phrase "deals with". Synonyms or definitions given for the phrase relevantly include "relate to", "cover", "include", "embrace", "refer", "concern", "be about", "be relevant" and "bear upon". It is to be observed that within the relevant range of meanings the phrase "deal with" denotes both stronger and weaker connections between the concepts linked by the phrase. Having regard to the effect of s 41(1), which is to override or supersede the terms of an award of the Commission, it is unlikely that legislature intended that a weaker meaning was intended. In other words, it would be expected that for a matter 5 to be dealt with by an enterprise agreement so as to bring s 41(1) into operation it would not be sufficient that the matter merely be referred to but rather that it be the subject of an operative provision. It is also pertinent that, as the last sentence of s 41(1) states, the operation of the provision is subject to the actual terms of the enterprise agreement. 48 We do not accept the applicants' submissions as to the application of Unilever to these proceedings and, in particular, we reject the applicants' selective use of Wright J's analysis. Indeed, contrary to the applicants' submissions, we consider the following observations of Wright J to be critical: Those references show that the meaning of the phrase "deals with" depends essentially on its context....

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