GOLDBERG & JESSUP JJ
7 This is an appeal from orders made on 19 November and 6 December 2007 by a single Judge of the court, giving effect to her Honour's reasons for judgment published on 7 November and 6 December 2007 respectively.
8 The proceeding before the trial Judge concerned the dismissal of the respondent, Mr Victor Claveria, from his employment by the appellant, CSR Viridian Limited (then known as Pilkington Australia Limited) at its factory at Laverton in Victoria. The trial Judge held that the dismissal was in contravention of s 659(2)(e) of the Workplace Relations Act 1996 (Cth), ("the WR Act") which relevantly provides as follows:
[A]n employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:
…
(e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities…
Her Honour found that the respondent had been dismissed for reasons which included that he had had recourse to a competent administrative authority within the meaning of par (e) of s 659(2). In the facts of the case, the entity to which her Honour found that the respondent had had recourse was the trade union of which he was a member, the Construction, Forestry, Mining and Energy Union ("the Union"). The two issues which arise on appeal are whether the Union was a "competent administrative authority", and whether the respondent had had "recourse" to it.
9 At the Laverton factory, the respondent worked on an assembly line in the production of automotive windscreens. It seems that issues had arisen as to the respondent's practice of absenting himself from his work station from time to time. The appellant's line manager with supervision over the respondent had taken the respondent to task over that practice to an extent that the respondent found objectionable. By 23 January 2007, the respondent considered that his line manager was operating (as her Honour found) "an oppressive regime of surveillance" with respect to him. On that day the line manager reprimanded the respondent for having stopped work in order to speak to another employee who, her Honour found, had approached the respondent in order to obtain some safety gloves. By this stage, the respondent was finding the manager's surveillance particularly stressful.
10 Because he found the surveillance stressful, on 24 January 2007 the respondent telephoned the Union, seeking its assistance. He spoke to the branch secretary. He related the incident about the gloves the previous day, and said that the line manager was constantly keeping an eye on him; and that he was constantly being watched with regard to toilet and other breaks, and was feeling stressed on account of that treatment. To the secretary, the respondent sounded upset and agitated. He thought that the respondent had been bullied and harassed. He told the respondent that he thought that what had happened to him amounted to bullying and harassment, and that the Union would do something about it. Later that day (24 January), the secretary telephoned the Union delegate at the factory, and asked him to take up the matter. In that telephone call, he described the respondent's allegations as constituting "harassing and bullying".
11 Some minutes after commencing his shift at 3.00 pm on 24 January 2007, the respondent spoke to the Union delegate about his concerns. Then the delegate spoke to the line manager and told him that the respondent had made a complaint to the branch secretary of the Union that the manager was "bullying and harassing" him, and always keeping an eye on him. The delegate asked the manager to meet with the branch secretary or the Union organiser (who was on leave at the time), but the manager responded that he would first have to speak with the appellant's human resources manager. He telephoned the human resources manager, and told him that the respondent had complained to the Union that he (the line manager) was harassing and bullying him. The human resources manager replied that he was sick of coming over to Laverton so often, and that the respondent should have been sacked already. He said he would leave it up to the line manager to handle the matter.
12 A little while later (still on 24 January 2007) the line manager convened a meeting in his office which was attended by the respondent, the delegate, and others. The respondent's employment was terminated at that meeting. It is unnecessary to refer further to the meeting, since the trial Judge was not satisfied that the respondent's complaint to the Union as to his treatment by the line manager was not a reason for the termination of his employment, and no question arises on appeal as to the correctness of that conclusion. The failure of the appellant to exclude that reason invoked the operation of s 664 of the WR Act and produced the result, as the trial Judge found, that the respondent was entitled to succeed if the Union was a "competent administrative authority" within the meaning of s 659(2)(e) of the WR Act and the respondent had had "recourse" to it.
13 Dealing with the question whether the Union was a "competent administrative authority", the trial Judge referred first to the "principal object" of Div 4 of Pt 12 of the WR Act, in which s 659 is to be found. That object is stated in s 635(1), in the following terms:
The principal object of this Division is:
(a) to establish procedures for conciliation in relation to certain matters relating to the termination or proposed termination of an employee's employment in certain circumstances; and
(b) to provide, if the conciliation process is unsuccessful, for recourse to arbitration or to a court depending on the grounds on which the conciliation was sought; and
(c) to provide for remedies appropriate to a case where, on arbitration, a termination is found to be harsh, unjust or unreasonable; and
(d) to provide for sanctions where, on recourse to a court, a termination or proposed termination is found to be unlawful; and
(e) by those procedures, remedies and sanctions, and by orders made in the circumstances set out in Subdivision D, to assist in giving effect to the Termination of Employment Convention.
The Termination of Employment Convention referred to in s 635(1)(e) is the Convention Concerning Termination of Employment at the Initiative of the Employer done by the General Conference of the International Labour Organisation on 2 June 1982 ("the Convention"), a copy of which is set out in Sched 4 to the WR Act. Her Honour referred also to s 642(5) of the WR Act, which provides:
An expression used in this Subdivision or Subdivision C or D has the same meaning as in the Termination of Employment Convention.
Section 659 appears in Subdiv C of Div 4 of Pt 12 of the WR Act, and thus is governed by s 642(5).
14 Paragraph (e) of s 659(2) of the WR Act has its genesis in the Convention. Part II of the Convention is headed "Standards of General Application", and Division A thereof is headed "Justification for Termination". Article 4 provides as follows:
The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.
Article 5 sets out a number of circumstances which do not constitute valid reasons for the purposes of Art 4. It reads as follows:
The following, inter alia, shall not constitute valid reasons for termination:
(a) union membership or participation in union activities outside working hours or, with the consent of the employer, within working hours;
(b) seeking office as, or acting or having acted in the capacity of, a workers' representative;
(c) the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;
(d) race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
(e) absence from work during maternity leave.
Her Honour held that the expression "competent administrative authorities" in s 659(2)(e) of the WR Act bore the same meaning as the same expression appearing in Art 5(c) of the Convention. It was not submitted on behalf of the appellant that her Honour was wrong in so holding.
15 The trial Judge then turned to consider the meaning of "competent administrative authorities" in Art 5(c) of the Convention. In this part of her reasons, her Honour first observed that the rules applicable to the construction of international conventions "are more liberal than the traditional canons of construction of the English common law", drawing upon Anderson v Umbakumba Community Council (1994) 56 IR 102, 104-105 and Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, 203. Her Honour referred also to the Vienna Convention on the Law of Treaties 1969, Art 31.1 of which required that the Convention be interpreted "in good faith in accordance with the ordinary meaning to be given to [its] terms … in their context and in the light of its object and purpose". Her Honour noted that the Vienna Convention permitted recourse to the preparatory works of the Convention and the circumstances of its conclusion.
16 The trial Judge noted that neither party suggested that any guidance could be gleaned from any other international instrument.
17 The trial Judge then turned to the construction of the Convention, in accordance with the principles set out in the Vienna Convention. Her Honour noted that the expression "competent administrative authorities" appeared only in Art 5(c), but that the Convention used the expression "competent authority" in a number of places. We shall refer to them presently. Her Honour inferred that that expression "embraces any body that has the relevant capacity under national law to act in the way that the relevant article contemplates", and that the expression was wider than the words "a court, labour tribunal, arbitration committee or arbitrator". She continued:
The expression "competent administrative authorities", on the other hand, apparently contemplates competent authorities of a particular kind. That is, the expression contemplates competent authorities of an administrative kind, as opposed to competent authorities of another variety (such as competent legislative authorities or competent judicial authorities).
18 The trial Judge then looked at the preparatory work for the Convention. It seems that, until quite late in the succession of meetings of the Committee on Termination of Employment ("the Committee") that drafted what ultimately became the Convention, the expression "or recourse to competent administrative authorities" did not appear in the draft. Representatives of workers had attempted, unsuccessfully, to achieve a consensus on the deletion of the words "involving alleged violation of laws or regulations". Then the government member from Greece proposed the addition of the words "or recourse to competent administrative authorities", and this was accepted. According to her Honour, these words were introduced to widen the scope of the proposed Art 5(c).
19 The trial Judge referred to a report of the Committee of Experts upon the effect of the Convention, prepared in 1995. Her Honour set out the following passage from that report:
This invalid reason for termination of employment is an important aspect of employment security as it provides protection for workers against retaliatory measures. …
Protection of this kind can be established through provisions to protect workers against retaliatory measures when they try to defend their rights under the Constitution, the Labour Code or other legislative provisions. …
In the General Survey on equality in employment and occupation, the Committee emphasized more specifically that the effective protection of the principle of equality presupposes the existence of guarantees providing protection against retaliatory measures for a person who lodges a complaint with the appropriate body, who institutes proceedings to enforce his or her rights, or who is a party to such proceedings as a witness. Such measures, the most brutal form of which is termination of employment, taken against a person who has suffered discrimination and who has availed himself of a right which is his in accordance with the national policy of equal opportunity and treatment, are of a particularly serious nature …
Her Honour said that two things were clear from the report, although she considered that they were probably apparent from the terms of the Convention and its history. The second of those things was:
… the expression "competent administrative authorities" has no technical meaning or fixed application. It may signify no more than an "appropriate body" (other than a legislative or judicial body or the employer) in the ratifying State to receive the communication of an allegation of misconduct on the employer's part. A body will be appropriate in this context if it has the legal capacity to manage or suitably address the allegation in some way (whether by investigation, a dispute resolution process, or otherwise).
20 The trial Judge said that her approach to the meaning of the expression was in keeping with its ordinary meaning. Her Honour said:
The expression "competent administrative authorities" is plainly a compound one. Bearing in mind the terms, history and object of the Convention, as well as the specific object of art 5(c), it apparently signifies bodies (other than the employer) within the ratifying State having the legal capacity to manage, deal with, or suitably address the allegation in some way (other than by judicial decision or legislative action). In this context, an allegation of misconduct on the employer's part might be managed or suitably addressed in a variety of ways, including by investigation, reporting, prosecution, engagement of a dispute resolution process, making a determination or recommendation, or providing information and advice.
The trial Judge rejected the appellant's submission that the expression referred only to an authority with the capacity and the right to determine a controversy which was properly raised with it. Her Honour concluded on this aspect:
The purpose of art 5(c) is best served if a liberal interpretation of the expression "competent administrative authorities" is adopted, because it extends to an employee the protection against illegitimate retaliatory termination that art 5(c) was designed to give.
21 The trial Judge referred to the decision of the Full Court in He v Lewin (2004) 137 FCR 266, 280, where it was said that s 659(2)(e) was "directed to the making of complaints to outside authorities, either by way of instituting proceedings against the employer, or by way of making allegations to officials who are empowered to investigate such allegations". It followed that the ground in s 659(2)(e) could not be established by the making of complaints directly to an employer.
22 The trial Judge reiterated her conclusion, previously reached, that, in the absence of authority, the "natural meaning" of the expression "competent administrative authority" was "a body with legal capacity to manage, deal with, or suitably address an employee's allegation against his or her employer, in some way". Her Honour said that that conclusion was "much the same" as that reached by Ritter JR in an unreported judgment of 10 February 1997 (Leicester v Western Desert Puntukurnuparna Aboriginal Corporation). She noted that the occupational health and safety officer at the Victorian Trades Hall Council "had no relevant competence" to deal with the email sent in the facts of Zhang v The Royal Australian Chemical Institute Inc (2005) 144 FCR 347, 350 and was not (apparently, therefore) a competent administrative authority; and that a claim for accident compensation did not fall within s 659(2)(e), as held in Jennings v Salvation Army (2003) 128 IR 366, 370-371.
23 The trial Judge referred to the only occasion on which the specific question which arose before her had been considered. It was Catusanu v Ray's Guard Security Services (unreported, MD Murphy JR, Industrial Relations Court of Australia, 29 July 1997), a case involving an allegation of underpayment by reference to an award to which a union was a party. In that matter, Murphy JR had said:
[T]he applicant's participation in the union's investigation of the alleged award breaches, and the service of a letter of demand on his behalf by the union, a registered organisation under the Act, is comprehended within the phrase "recourse to competent administrative authorities". Registered organisations are established under the Act. They have been accorded a particular status, and have privileges under the Act. They may be parties to an award. Their privileges include the right of appearance by their officers or employees (s 469), the right to sue for recovery of a penalty for a breach of an award (s 178), or to bring an application under Part VIA (s 170EA). Registered organisations thus have a clearly recognised and important role within the framework of the Act and for that purpose can be easily accommodated within the term "competent administrative authorities".
24 The trial Judge dealt next with the question whether what the respondent did on 23 January 2007 was to have "recourse" to the Union. In this respect, her Honour said:
Mr Claveria's communication to Mr Skourdoumbis about his treatment at Pilkington's factory and his request for assistance, which was taken up by the union and led to Mr Seneviratne requesting Mr Dunstan for a meeting to discuss Mr Claveria's bullying and harassment allegation would constitute "recourse to a competent administrative authority" providing the union is to be regarded as such an authority.
25 The trial Judge next considered whether the particular position of registered organisations under the WR Act was such as to make the Union a competent administrative authority for present purposes. We shall refer to those provisions further below. In the light of them, her Honour was not prepared to accept the submission of the appellant that the Union was merely "a partisan player in the industrial field". She noted that individuals (presumably, employees) did not have the same "aggregate of rights" as did unions; nor did those rights exist for precisely the same reasons as in the case of unions. Her Honour continued:
Plainly enough, a trade union will not be a "competent administrative authority" for every grievance. Whether or not it has this status will depend on the nature of the grievance and the union's legal capacity to manage, deal with, or otherwise appropriately address it. As it happened, the union in this case had power by virtue of statute and the certified agreement to investigate and manage the allegation of workplace bullying and harassment, which Mr Skourdoumbis reasonably believed Mr Claveria had communicated to him on the morning of 24 January 2007.
26 The trial Judge therefore turned to the industrial agreement which bound the appellant and the Union, and which covered the work of the respondent. It was an agreement certified under s 170LT of the WR Act in April 2006, the continued operation of which (after the repeal of that section by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth)) was governed by item 6 of Sched 7 to the WR Act. The Certified Agreement contained a grievance procedure, in the following terms:
… subject to the provisions of the Workplace Relations Act 1996 as amended, all grievances, claims or disputes whether relevant to this Agreement or any other matter, shall be dealt with in the following manner so as to ensure the orderly settlement of the matters in question:
(a) Any grievance or dispute that arises shall, where possible, be settled by discussion on the job between the employee and direct supervisor (e.g. Shift Co-ordinator or Site Leader).
(b) If the matter is not resolved at this level, the matter will be further discussed between the employee concerned, the shop steward, the supervisor and the appropriate manager.
(c) If no agreement is reached, the relevant Union official and shop steward will discuss the matter with the manager and the Company's nominated industrial relations representative.
(d) Subject to the rights of the parties, should the matter still not be resolved, it shall be referred by either party to the Australian Industrial Relations Commission or to a third party mutually agreed.
Her Honour paraphrased this provision as entitling the Union to require the respondent's grievance to be dealt with by discussion and, if need be, to refer it to the Commission. The union was entitled to institute court proceedings for a penalty in relation to a breach of a term of the Certified Agreement.
27 The trial Judge then referred to the rights which officials of the Union had to enter the appellant's factory for certain purposes. Those rights arose in two ways, each of which was, at least potentially, relevant to the circumstances which obtained at the factory on 23 and 24 January 2007. The rights arose first under Pt 15 of the WR Act and secondly under Pt 8 of the Occupational Health and Safety Act 2004 (Vic) ("the OHS Act"). The latter was particularly relevant in the circumstances, because the respondent's contact with the branch secretary of the Union on 24 January 2007 was reasonably interpreted as involving an allegation of bullying and harassment. Her Honour concluded on this aspect:
Thus, when Mr Claveria resorted to the union on the morning of 24 January 2007, he initiated the union's management of his complaint or grievance under the certified agreement, as well as action of the union's part that had the potential to lead its permit holders to exercise their rights of entry to the workplace.
That brought the trial Judge to her conclusion with respect to the "competent administrative authority" point. Her Honour expressed that conclusion in the following terms:
Having regard to the rights of the union under the certified agreement, its standing and statutory rights under the Act, as well as the rights of its representatives under the OHS Act, the union is properly regarded as a body with the legal capacity to manage, deal with and appropriately address the complaint or grievance that Mr Claveria communicated to it on the morning of 24 January 2007. It follows that it was one of the "competent administrative authorities" to which Mr Claveria might have recourse. The nature of his complaint or grievance meant that the union had the legal capacity to manage it appropriately until it reached some resolution.
28 Finally, the trial Judge said that she was fortified in her conclusion that the Union was a competent administrative authority by two further considerations. The first was the need to construe a remedial provision such as s 659(2)(e) liberally rather than technically. The second was the particular history of trade unions in Australia, and their special place in the regulation of industrial relations, largely pursuant to legislation which preceded the WR Act, but also to extent under that Act itself. As to this second point, her Honour considered the writings of various authors and scholars, and quoted an extract from Commissioner Portus's well-known book of the 1950's, The Development of Australian Trade Union Law, which perhaps best encapsulated the point in the following terms:
From being associations tolerated by the state they have become semi-official associations which are given a part in the making and administration of law.
The trial Judge having concluded that the Union was a "competent administrative authority", and the other requirements of s 659(2)(e) having been satisfied, it followed that the appellant had contravened the provision.
29 The first question involved in the appeal is whether the Union was a "competent administrative authority" within the meaning of s 659(2)(e) of the WR Act, with respect to the respondent's complaint to the branch secretary on 24 January 2007. Because of the terms of s 642(5) of the WR Act, we are required to consider the meaning of the expression "competent administrative authorities" in Art 5(c) of the Convention. As directed by the Vienna Convention, we must interpret the expression in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of the object and purpose of Art 5(c).
30 The object of Art 4 of the Convention, quite clearly, is to protect workers from dismissal unless there is a valid reason therefor. Article 5 excludes certain reasons from ever being regarded as valid. The use of the expression in Art 4 "unless there is a valid reason" suggests that the drafters of the Convention had it in mind that the employer should, at least in the first instance, be required to justify a termination by reference to a valid reason. In that endeavour, the employer could not rely on any of the reasons set out in Art 5. However, the wording of Arts 4 and 5 makes it clear that a particular termination might lack a valid reason notwithstanding that there is no question of any of the reasons excluded by Art 5 playing any part in the employer's actual reasons at that time. This means that the inability of a dismissed worker to show that his or her dismissal was for one of the reasons set out in Art 5 will not be the end of the matter. The question will remain: was there a valid reason for the dismissal? Put differently, the mere fact that the reason for a particular dismissal is not excluded by Art 5 would not mean that the achievement of the object of protecting the worker in question from dismissal without valid reason is frustrated.
31 What is noteworthy about Art 5 itself is that its terms are, at least against the broad policy framework provided by the Convention as a whole, relatively specific. And so they should be, since their purpose is to make clear what should not be regarded as valid reasons under any circumstances. Were those terms expressed too broadly or flexibly, that purpose would be frustrated. Thus one finds distinctions between, for example, race and colour, and between participation in union activities and having acted in the capacity of a worker's representative. We discern the purpose of Art 5 not as the establishment of broad protections against dismissal - that is the purpose of Art 4 - but to make as clear, and as specific, as may be in an instrument of this kind what should in no circumstances be regarded as constituting a valid reason for a dismissal. Because of the categorical nature of that purpose, we take the view that it is unlikely that the drafters of Art 5 intended imprecise or open-ended meanings to be given to its lettered sub-paragraphs. That conclusion flows naturally from the application of Art 31.1 of the Vienna Convention.
32 Turning to Art 5(c) itself, it is convenient to commence with what was said by Lander J (with the concurrence of Spender and Kenny JJ) in Zhang 144 FCR 347, 351 [23] not about that provision but about the section of the WR Act - then s 170CK(2)(e), now s 659(2)(e) - which implements it in Australia. His Honour said:
Three circumstances can trigger the operation of the proscribed reason in s 170CK(2)(e). First, the filing of a complaint by the employee. Secondly, participation by the employee in proceedings against an employer. In both those cases they must involve alleged violation of laws or regulations by the employer. The punctuation supports that construction. Thirdly, recourse by the employee to competent administrative authorities will trigger the operation of the section. All three circumstances are directed to complaints to parties other than the employer.
Unlike s 659(2)(e), Art 5(c) contains no internal punctuation. However, the commas in the statute indicate that the draftsman was reading the Convention as though the words "against an employer involving alleged violation of laws or regulations" referred to both of the first two substantive elements, namely filing a complaint and participating in proceedings. So much is uncontroversial, and was common ground in the appeal. However, the appellant went further and submitted that those words qualified also the third element, recourse to competent administrative authorities.
33 At this point it is convenient to deal with the appellant's second ground of appeal, since it involves the construction of Art 5(c) of the Convention in a way that has consequences for the resolution of its first ground. Although the short statement of the second ground was that her Honour below was in error to have held that the respondent had "recourse" to the Union on 24 January 2007, as developed in the appellant's submissions the point had little or nothing to do with the inherent nature of a communication implied by the noun "recourse". Rather, the point was that a worker should not be regarded as having had recourse to a competent administrative authority unless the substance of his or her complaint to such an authority was that there had been, or might well have been, a violation of laws or regulations (although it was not submitted that he or she need have any more than the most general of notions as to the identification of the laws or regulations concerned). On the facts of the present case, it was submitted that, when the respondent contacted the branch secretary on 24 January 2007, he asked for no more than that the Union should help him with his grievance as to the line manager's zealous surveillance, and did not, even generally, imply that there had been a violation of a law or regulation. The branch secretary may have put such an interpretation on the respondent's complaint, but that, it was submitted, is not enough.
34 There are several considerations which count against the appellant's construction of Art 5(c), or of s 659(2)(e) which is based on it. First, the grammatical arrangement of the elements in the provision (whether without or without the internal punctuation) suggests that the qualifier "involving alleged violation of laws or regulations" applies only to the first and second substantive elements. Secondly, the amendment by which the words "or recourse to competent administrative authorities" were added to the draft of the proposed provision by the Committee required, specifically, that the words be inserted "at the end of subparagraph (c)", making it tolerably clear that it was no accident that those words were not inserted before, and therefore grammatically qualified by, the requirement of an allegation of a violation of laws or regulations. Thirdly, the workers' representatives on the Committee had pressed, unsuccessfully, for the omission of that requirement, yet they supported the amendment. It is unlikely that they would have done so, at least without apparent reservation (of which none is recorded), if it was their view that the new words, like the earlier part of the draft, were also subject to the requirement. Fourthly, while the first two substantive elements of the provision refer to quite generic procedures, and would clearly need some more specific point of reference to define their scope in practical settings, the third (ie that concerning the competent administrative authorities) refers to a person or body of a particular character. There is not then the same need to limit the functions of that person or body to those that involve dealing with violations of laws or regulations. And fifthly, as the facts of the present case demonstrate, to read the third substantive element of Art 5(c) as requiring that there be an allegation of a violation of laws or regulations would be to introduce great scope for uncertainty in the practical operation of the provision. In the case of the filing of a complaint or the participation in proceedings, the nature of the complaint or of the proceedings will appear from the terms of documentation the existence of which is implied by those words. However, the process of divining whether a particular "recourse" involves such an allegation will often be, and in the present case would have been, problematic in the extreme. Counsel for the appellant accepted that the worker, in having his or her "recourse", need not articulate the legislative basis of the allegation which was said to be necessary; yet they submitted that, on the facts of the present case, the respondent should not be regarded as having made such an allegation merely by complaining about his employer's conduct which, if viewed in a certain way, might well have amounted to a breach of s 21 of the OHS Act. We cannot accept that the Committee (or the Parliament) intended that the norm of conduct in question should be so uncertain in its practical operation.
35 For the foregoing reasons we reject the appellant's submission that the "recourse" to which Art 5(c) and s 659(2)(e) refer is limited to such as involves an allegation of a violation of laws or regulations. We agree with her Honour that, when the respondent contacted the branch secretary of the Union on 24 January 2007, he had "recourse" to the Union, whether or not his then complaint should be viewed as involving an allegation of a violation by the appellant of laws or regulations. However (and here we return to the appellant's first ground of appeal), that construction of Art 5(c) makes it the more unlikely that the Committee intended that the concluding words should be of broad or indeterminate meaning. Before developing that proposition, it is convenient to consider the meaning of the three words involved in the expression "competent administrative authority".
36 The trial Judge observed that the expression was a "compound" one. It is not clear whether her Honour intended thereby to imply that there was little utility in considering the contribution made to the meaning of the expression by each of the three words involved. If so, we would not, with respect, agree with such a conclusion. The expression is not so firmly established in the vernacular for its meaning to be unambiguously clear without resort to its verbal components (such as, perhaps, gum tree, log cabin and long weekend). In our view, each of the words involved in the expression makes its own contribution to the meaning of the expression itself, notwithstanding that it may be appropriate ultimately to recognise in that meaning a sense which is more than, or different from, the mere sum of the parts.
37 The expression consists of a noun qualified by two adjectives. At base, a competent administrative authority must, in our view, be at least an authority. In this respect the trial Judge appears not to have been referred to the judgment of the Full Court in Commissioner of Taxation v Bank of Western Australia Ltd (1995) 61 FCR 407. In that case, the question was whether certain banks, operating under State legislation, fell within the terms of an item in a Schedule to Commonwealth legislation which provided for exemptions from sales tax. One of the questions which arose was whether each such bank was "an authority which is completely controlled by … a State or Territory". It was common ground that each of the banks was "completely controlled by" a State government. What is relevant for present purposes is the Full Court's treatment of the question whether the banks were "authorities". In a judgment with which Wilcox J and Drummond J agreed, Hill J said (61 FCR at 427):
The word "authority" is an ordinary English word. It signifies a body which has the right or power to exercise authority or command. It is an example, as Dixon CJ observed in Federal Commissioner of Taxation v Silverton Tramways Company Limited (1953) 88 CLR 559 at 565, of a word the meaning of which has come about by a transfer of meaning from the abstract concept of power or command to the body or person possessing it.
Hill J considered the meaning of the word "authority" in the context of the expression "public authority", and continued (at 428):
It is difficult, however, to see that the addition of the word "public" significantly alters the meaning of the word "authority", particularly where it is used, as in the present context, in relation to governmental authorities. To the extent that the word "public" does affect the meaning of the word "authority" it can only be in the emphasis upon the public character of the body, or the public nature of the activity with which the body is concerned rather than the intrinsic characteristics of the body itself.
Hill J then looked at a number of Australian authorities as to the meaning of the word "authority", and concluded that the following propositions could be derived therefrom (at 429-430):
1. A question whether a particular entity is an authority will be a question of fact and degree dependent upon all the circumstances of the case…. No one factor will be determinative, rather there will be a "range of considerations"….
2. A private body, corporate or unincorporated, established for profit will not be an authority….
3. Incorporation by legislation is not necessary before a body may be classified as an authority….
4. For a body to be an authority of a State or of the Commonwealth, the body in question must be an agency or instrument of government set up to exercise control or execute a function in the public interest. It must be an instrument of government existing to achieve a government purpose….
5. The body in question must perform a traditional or inalienable function of government and have governmental authority for so doing….
6. It is not necessary for a person or body to be an authority that he, she or it have coercive powers, whether of an administrative or legislative character…. Conversely the fact that a person or body has statutory duties or powers will not of itself suffice to characterise that person or body as an authority….
7. At least where the question is whether a body is a "public authority" the body must exercise control power or command for the public advantage or execute a function in the public interest…. The central concept is the ability to exercise power or command….
Hill J then expressed the view that, before a person or body could be found to be an authority, he, she or it had to have "exceptional powers or authority". His Honour concluded (at 430):
It must be said that there is not much discussion of the matter in the cases, but I am of the view that there is such a requirement and that it flows out of the word "authority" itself, which suggests that the body is able to exercise command or authority, something which a mere member of the public cannot do in a public sense.
38 As Hill J emphasised in Bank of WA, the particular meaning to be given to the word "authority" will depend heavily upon context. Where used as an abstract noun, the word may, for example, refer to the authority which a superior exercises over his or her subordinate within an organisation; or it may refer to the authority which an agent has to act on behalf of his or her principal; or it may refer to little more than the permission which a person has to act in a way which would otherwise be against some rule or regulation. In Bank of WA, the context was provided by the requirement (admitted in that case) that the body be completely controlled by a government. In the present case, the context is provided by the object and purpose of Art 5(c) and the qualifiers "competent administrative". As it happens, and as the trial Judge noted, there are several occasions where the Convention uses the term "competent authority". It is convenient, then, to note how that term is used, for the purpose of identifying, if possible, what kind of entity the Committee had in mind when it used the noun "authority" qualified only by the requirement that it be "competent".
39 Part I of the Convention is concerned with "Methods of Implementation, Scope and Definitions". Article 2.2 permits a member state to exclude certain categories of worker, such as probationary workers and short-term casuals, from the operation of all or some of the provisions of the Convention,. Article 2.4 and Art 2.5 are in the following terms:
4. In so far as necessary, measures may be taken by the competent authority or through the appropriate machinery in a country, after consultation with the organisations of employers and workers concerned, where such exist, to exclude from the application of this Convention or certain provisions thereof categories of employed persons whose terms and conditions of employment are governed by special arrangements which as a whole provide protection that is at least equivalent to the protection afforded under the Convention.
5. In so far as necessary, measures may be taken by the competent authority or through the appropriate machinery in a country, after consultation with the organisations of employers and workers concerned, where such exist, to exclude from the application of this Convention or certain provisions thereof other limited categories of employed persons in respect of which special problems of a substantial nature arise in the light of the particular conditions of employment of the workers concerned or the size or nature of the undertaking that employs them.
The expression "competent authority" in this context, it appears, signifies an entity which has the authority to exclude categories of workers from the application of the Convention. This is a function which would be expected to be carried out by a governmental or public body or official. In the Australian context, it may include the Parliament, the Executive exercising its power to make regulations or a board or commission having statutory powers in the area of employment, such as the Australian Industrial Relations Commission. Further, a "competent authority" in this context would be quite separate from "the organisations of employers and workers", since it is with the latter that the former must consult before excluding categories of employees from the application of the Convention.
40 Part II of the Convention is concerned with "Standards of General Application", and contains the substantive provisions of the Convention. Division A is headed "Justification for Termination", and contains Arts 4 and 5. Division C is headed "Procedure of Appeal Against Termination", and commences with the following provisions in Art 8:
1. A worker who considers that his employment has been unjustifiably terminated shall be entitled to appeal against that termination to an impartial body, such as a court, labour tribunal, arbitration committee or arbitrator.
2. Where termination has been authorised by a competent authority the application of paragraph 1 of this Article may be varied according to national law and practice.
In the context of Art 8.2, a "competent authority" is apparently an entity that has the power to authorise what would otherwise be a contravention of such provisions of municipal law as may implement the Convention. Again, a governmental or public body or official is suggested.
41 Part III of the Convention is concerned with termination of employment "for economic, technological, structural or similar reasons". Division A is headed "Consultation of [sic] Workers' Representatives", and contains Art 13. That article would require an employer contemplating termination of employment for reasons of an economic, technological, structural or similar nature to provide information to, and to consult with, workers' representatives. The article is in the following terms:
1. When the employer contemplates terminations for reasons of an economic, technological, structural or similar nature, the employer shall:
(a) provide the workers' representatives concerned in good time with relevant information including the reasons for the terminations contemplated, the number and categories of workers likely to be affected and the period over which the terminations are intended to be carried out;
(b) give, in accordance with national law and practice, the workers' representatives concerned, as early as possible, an opportunity for consultation on measures to be taken to avert or to minimise the terminations and measures to mitigate the adverse effects of any terminations on the workers concerned such as finding alternative employment.
2. The applicability of paragraph 1 of this Article may be limited by the methods of implementation referred to in Article 1 of this Convention to cases in which the number of workers whose termination of employment is contemplated is at least a specified number or percentage of the workforce.
3. For the purposes of this Article the term the workers' representatives concerned means the workers' representatives recognised as such by national law or practice, in conformity with the Workers' Representatives Convention, 1971.
The Workers' Representatives Convention, 1971 defines "workers' representatives" as -
… persons who are recognised as such under national law or practice, whether they are -
(a) trade union representatives, namely, representatives designated or elected by trade unions or by members of such unions; or
(b) elected representatives, namely, representatives who are freely elected by the workers of the undertaking in accordance with provisions of national laws or regulations or of collective agreements and whose functions do not include activities which are recognised as the exclusive prerogative of trade unions in the country concerned.
42 Division B of Part III of the Convention is headed "Notification to the Competent Authority". It contains Art 14, in the following terms:
1. When the employer contemplates terminations for reasons of an economic, technological, structural or similar nature, he shall notify, in accordance with national law and practice, the competent authority thereof as early as possible, giving relevant information, including a written statement of the reasons for the terminations, the number and categories of workers likely to be affected and the period over which the terminations are intended to be carried out.
2. National laws or regulations may limit the applicability of paragraph 1 of this Article to cases in which the number of workers whose termination of employment is contemplated is at least a specified number or percentage of the workforce.
3. The employer shall notify the competent authority of the terminations referred to in paragraph 1 of this Article a minimum period of time before carrying out the terminations, such period to be specified by national laws or regulations.
Under Part III of the Convention, therefore, a "competent authority" is treated as distinct from "workers' representatives". It is true that the latter is a broader term than "trade union" (for example), but the context and subject matter of the part suggests that unions would be within the class of persons required to be consulted by the employer under Art 13 rather than constituting bodies of a kind required to be notified under Art 14. The sense of the two articles, read together, is that a "competent authority" is a person or body with broad public responsibilities, not one which represents workers or their interests.
43 Turning to the contribution of the word "administrative", counsel for the respondent submitted that the word was not to be understood as used in the phrase "administrative law", but that it was to be understood as marking out a point of difference from the concepts "judicial" and "legislative". It is, however, only in the classification of the functions of the state, broadly understood, that this point of difference is meaningful. If, as counsel also submitted, "administrative" meant no more, in the present context, than having the capacity to administer the matters that arise from workers' complaints, there would seem to be no reason to regard the concept as different from those involved in making laws or adjudicating upon disputes, in each of which settings much administration - in the sense of office work, for example - is routinely carried out. Particularly given the requirement that the putative authority be "competent", we do not accept that "administrative" means no more than the body in question have the functional capacity to deal with a worker's complaint.
44 In a context in which the adjective "administrative" is used to qualify the noun "authority", and marks out a point of distinction between such an authority and judicial and legislative bodies, we consider that it carries the sense commonly given to it in the public law lexicon of both the common law and the civil law worlds. In systems of law with which common lawyers are familiar, the word "administrative" refers broadly to the functions of the executive branch and of the officials and bodies who are responsible for the operation of government at all levels, including the making of decisions, the giving of authorisations, the issuing of permits and many like functions carried out under the law. To a common lawyer, a competent administrative authority would be an authority with functions of this kind. This sense of the word is, if anything, more deeply entrenched in civil law systems, as we see, for example, in the French droit administratif. In some countries, whether common law or civil law, the machinery of government as a whole is often referred to as "the administration". We consider that, in context, it is in this public law sense that the word "administrative" is used in Art 5(c).
45 Returning to the trial Judge's analysis of the terms of the Convention, as noted above, her Honour commenced with the senses in which it used the expression "competent authority". From that, she concluded that a competent authority was "any body that has the relevant capacity under national law to act in the way that the relevant article contemplates". Her Honour then proposed that "competent administrative authorities" (under Art 5(c)) were "competent authorities of a particular kind". Having considered the proceedings of the Committee by which the final terms of what became Art 5(c) were resolved, and the report of the Committee of Experts to which we have referred, her Honour then expressed the conclusion set out in par 19 above, namely, that the expression "competent administrative authorities" had no technical meaning or fixed application, that it might mean no more than an "appropriate body" to receive a communication of an allegation of misconduct by an employer, and that a body would be appropriate if it had "the legal capacity to manage or suitably address the allegation in some way…."
46 We are unable, with respect, to agree with the trial Judge's view that a "competent administrative authority" may be no more than an "appropriate body" to receive the communication of an allegation of misconduct on the employer's part, or with her Honour's view that a body would be appropriate in that context "if it has the legal capacity to manage or suitably address the allegation in some way (whether by investigation, a dispute resolution process, or otherwise)". We take the view that her Honour's construction reflects only the requirement that some body be "competent" to deal with the matter implicitly raised by the worker, and does not give due recognition to the essentially governmental or public context which is conveyed by the words "administrative authorities". We agree with the trial Judge that a feature of a "competent authority" of the kind referred to in several places in the Convention is that it would have the capacity under national law "to act in the way that the relevant article contemplates". So to conclude, however, is merely to point to the proposed functions and role of such an authority, and is, with respect, an inadequate statement of the meaning of the term itself in the contexts in which it is used. The limits of that meaning may rarely arise for consideration in practical settings, since these provisions of the Convention were never intended to serve, and do not have the function of serving, as directly applicable norms of conduct in the way of national legislation. However, the legislature has chosen to bring the actual terms of Art 5(c) into Australian domestic law, the result of which is that we must give a meaning, as a norm of conduct, to the words in that provision. In so doing, it is not, in our respectful view, sufficient to give content to the expression "competent authority" merely by reference to the undoubted intent of the drafters of the Convention that such an authority would be one which acts in the way contemplated by the article in question.
47 We now return to the proposition foreshadowed in par 35 above. Once it be accepted, as the respondent submitted before us, that the "recourse" to which Art 5(c) refers need not involve an allegation of a violation of laws or regulations, to define the authority referred to in the concluding words of the paragraph as any body which has the legal capacity to manage, deal with or suitably address the worker's complaint would make the provision very open-ended. The sequence of events which led to the introduction of the words in question during the drafting of the Convention by the Committee reveals that the Committee was not prepared to exclude as valid reasons the circumstance that the worker had merely filed a complaint against the employer, or the circumstance that the worker had merely participated in proceedings against the employer. The Committee held to the position that such a complaint, or such a proceeding, had to involve an allegation of a violation of laws or regulations. In this drafting environment, it seems, with respect, highly improbable that the Committee would have agreed to introduce the expression proposed by the representative of the Greek government if that expression was to be given a meaning no more specific than that proffered by the trial Judge in the present case. We take that view in the light of the function of Art 5 itself to which we have referred, namely, that the circumstances referred to in the lettered paragraphs thereof should never be permitted to stand as valid reasons for termination of employment. The specific meaning which, in our view, the Committee intended to be conveyed is one which recognises the inherent force in the words "administrative authority" in the way discussed above.
48 We consider that a competent administrative authority within the meaning of Art 5(c) of the Convention is (1) a governmental or public body or official, (2) exercising a power or function of an executive, ministerial or administrative nature (rather than, for example, of a legislative or judicial nature), and (3) having competence to receive the complaint as to which the worker has recourse to it. To identify the meaning of the expression by reference to its components in this way seems to us, with respect, to be necessary to give due recognition to the contribution of each of them. When the matter is approached this way, the result is that the whole expression has a meaning which seems to be entirely harmonious with the object and purpose of Art 5(c), and in no sense artificial.
49 It was submitted on behalf of the respondent that the trial Judge was correct to hold that, because of the role given to the Union and its officials under the WR Act and the OHS Act, the Union was a "competent administrative authority". It will be clear, however, that we disagree with the terms in which her Honour identified the discrimen by reference to which to assess that role against the words in the Convention. It is, perhaps, possible that a trade union might be constituted a governmental or public body with functions that might relevantly be described as "administrative". However, in our view that was not the situation in the present case, and was not the result brought about by the provisions of the WR Act and the OHS Act relied upon by the respondent.
50 It was effectively common ground that, when the respondent complained to the Union on 24 January 2007, he invoked the grievance procedure in the certified agreement, to which we have referred at par 26 above. Likewise, we should assume that, in considering that it was appropriate that the matter be taken up by the site delegate, the branch secretary implicitly called up the grievance procedure. Was the Union a competent administrative authority by reason of its role and functions under the grievance procedure? In our opinion it was not. We consider that, under the grievance procedure, the Union was acting in a representative, rather than in a governmental or public, role. The grievance procedure was concerned with grievances, claims or disputes arising as between parties, assumed to be, in the first instance at least, one or more employees of the one part, and the appellant and its managerial and supervisory staff of the other part. Thus, the grievance must first be discussed "on the job between the employee and direct supervisor". Next, "the employee concerned, the shop steward, the supervisor and the appropriate manager" become involved. If the matter remains unsettled at this stage, "the relevant Union official and shop steward will discuss the matter with the manager and the [appellants'] nominated industrial relations representative". If the matter remains unresolved then, "subject to the rights of the parties", it was to be referred "by either party" to the Australian Industrial Relations Commission, or to a third party mutually agreed. These provisions, in our view, have the character of a procedure for the resolution of disputes between parties, and the role of the Union, when it arises, is to represent the interests of the employee or employees by or in relation to whom the grievance or dispute was first raised. The Union's role had no governmental or public character.
51 Counsel for the respondent pressed upon us the traditional characterisation of registered organisations, in relation to industrial disputes to which they become parties. They are "parties principal" in such disputes, not merely representatives of the employees as to whose terms and conditions the disputes arise: Burwood Cinema Ltd v Australian Theatrical and Amusement Employees' Association (1925) 35 CLR 528, 551. In the facts of the present case, the Union was the party to the certified agreement on the employee side (although the evidence does not reveal whether the agreement was made in settlement of an industrial dispute or because the appellant was a constitutional corporation). However, it is not inconsistent with the Union's position as a party to the certified agreement that its participation in the procedure for the settlement of the respondent's grievance was for the purpose of representing him and his interests. We consider that the question whether the Union might have been a "party principal" to industrial disputes as they arose from time to time, or that it was a party to the certified agreement itself, is a different matter from, and does not supply the answer to, the question whether the Union was, in relation to its participation in the procedure for the resolution of the respondent's dispute, a competent administrative authority within the meaning of Art 5(c) of the Convention.
52 It was also pointed out by counsel for the respondent that the Union had independent standing to institute penal proceedings in relation to alleged breaches of the Certified Agreement, pursuant to s 718 of the WR Act. We do not, however, consider that the standing of a non-governmental entity to institute penal proceedings in relation to an alleged violation of laws is sufficient to bring the entity within the expression "competent administrative authorities" in the sense which we have explained earlier in these reasons. Further, in the facts of the present case, it was no part of the respondent's complaint that the appellant had failed to observe the terms of the certified agreement. The question whether the Union was a "competent administrative authority" because it had the capacity to secure performance of the certified agreement did not, therefore, arise.
53 The respondent relied also upon the right of entry provisions of Pt 15 of the WR Act in support of the submission made on his behalf that the Union was a competent administrative authority in relevant respects. That part provides for the issue of permits to officials of registered organisations, and for the holder of such a permit to be entitled to enter premises where work is being carried out by members of the organisation, in circumstances where he or she suspects, on reasonable grounds, that a breach of the WR Act, or of certain agreements under the Act, has occurred or is occurring. Such a right of entry may be exercised by the permit holder whether or not the employees to whose work the suspected breach relates have requested his or her intervention, or the intervention of the Union. Once on the premises, the permit holder is entitled, amongst other things, to inspect or view any work, to interview employees about the suspected breach and to require the employer to allow him or her to inspect, and to make copies of, records which are relevant to the suspected breach that are kept on the premises or are accessible from a computer that is kept on the premises. Division 5 of Pt 15 of the WR Act also regulates the exercise of rights to enter arising under state laws such as, and including, the OHS Act. It operates by way of qualification of rights arising under such laws.
54 Although public officials charged with enforcing the law might be expected to have rights of entry and inspection of the kind given to organisations under Pt 15 of the WR Act, the fact that rights are so given does not make the organisations public bodies themselves. Those rights are given under Pt 15 to enable organisations to function effectively in the enforcement of awards and agreements to which they or their members are parties. In exercising those rights, such an organisation operates in the interests of the employees covered by the award or agreement, not in the way of a public official. We would add that, in the present case, it was never suggested that the respondent made or foreshadowed, even implicitly, a breach by the appellant of the WR Act, or of any agreement made under it. It was not suggested, for instance, that the appellant was, or might have been, in breach of the certified agreement, whether in relation to the grievance procedure therein or otherwise. In the circumstances, we do not consider that the provisions of Pt 15 of the WR Act made the Union a competent administrative authority in respects relevant in the present case.
55 On the facts of the present case, there was, it seems, a belief on behalf of the branch secretary of the Union that the appellant may have contravened s 21 of the OHS Act in relation to the respondent. In this respect, the trial Judge referred to the right of entry provisions under Pt 8 of that Act. That part is entitled "Authorised Representatives of Registered Employee Organisations", and provides for the issue of entry permits to persons who are employees or officers of organisations or employees registered under the WR Act (as the Union is). As the trial Judge point out, there were three employees or officers of the Union who held such permits in January 2007. A permit may be granted only on the application of a member of the committee of management of a registered organisation or of a branch thereof. Clearly, the holder of an entry permit under Pt 8 of the OHS Act is a representative of the organisation concerned. An entry permit empowers the holder to enter a workplace at which he or she suspects that a contravention of the OHS Act, or of regulations made under it, had occurred or was occurring, and where any of the following paragraphs of s 87(1) of the OHS Act applies-
(a) the suspected contravention relates to or affects work that is being carried out by one or more members of the registered employee organisation or relates to or affects any of those members;
(b) the suspected contravention relates to or affects work that is being carried out by one or more persons whose employment is subject to a certified agreement, or relates to or affects any of those persons, and the registered employee organisation is bound by that certified agreement;
(c) the suspected contravention relates to or affects work that is being carried out by one or more persons -
(i) who are eligible to be members of the registered employee organisation; and
(ii) whose employment is not subject to a certified agreement by which any registered employee organisation is bound -
or relates to or affects any of those persons.
The entry may be for the purpose only of "enquiring into the suspected contravention". Under s 89, the authorised representative may inspect any plant, substance or other thing at the place, may observe any work carried on at the place, may consult with one or more employees (with their consent) at the place who are members, or eligible to be members, of the organisation of which that person is a representative, and may consult with the employer. The representative is not empowered to require the employer to produce any document or thing, to give the representative access to any document or thing, or to take any other step under compulsion. Although it may be no more than a matter of terminology, the OHS Act relevantly describes the purpose of the representative's entry to the workplace as that of inquiry, not as that of investigation. Neither the representative nor his or her organisation has any role in the institution of proceedings for enforcement of the OHS Act or the regulations.
56 The powers of entry given to an authorised representative under Pt 8 of the OHS Act are not limited to circumstances in which the members of the organisation in question, or the work of those members, are or is involved. Under par (b) of s 87(1), the power is available where the work in question is being carried out under a certified agreement to which the organisation is a party, and under par (c) of the same subsection the power is available where the work in question is being carried out by employees who are eligible for membership of the organisation, so long as the employees are not eligible for membership of another organisation. This last provision shows that the powers of authorised representatives are not only confined to what might be regarded as the conventional areas of interest of the organisations of which they are representatives, but are excluded from areas of interest of other organisations. It is, thus, the scope of the industrial interests of the organisation in question that gives definition to the powers of representatives under Pt 8.
57 While the powers of entry given to the authorised representatives of an organisation under Pt 8 of the OHS Act are part of the procedure established by that Act for the enforcement of the norms contained in it, and have, in a sense, a public purpose, those powers do not relevantly give the organisation in question a governmental or public character. We view the powers given to authorised representatives under Pt 8 as facilitating the task of organisations acting in the interests of their members and eligible employees, rather than investing them with public responsibilities to be exercised in the broader context of public policy, as would be the situation in the case of an administrative authority properly so-called.
58 For the sake of completeness, we note that, at the hearing of the appeal, submissions were made about the terms of other international instruments that had used the expression "competent administrative authority" before its adoption by the Committee in 1982. While those uses demonstrated that the expression was not a new one when adopted by the Committee, and provided some confirmation of the sense in which it was used in the Convention, we have not found it necessary to rely upon them to construe Art 5(c) in the way we have above. Submissions were also made about the French version of the Convention, but we have found sufficient assistance in the English version to arrive at our construction of the terms of Art 5(c) as they appear in the latter.
59 For the above reasons, we take the view that the Union was not a "competent administrative authorit[y]" within the meaning of s 659(2)(e) of the WR Act in relation to the respondent's complaint to the branch secretary on 24 January 2007. Although undoubtedly competent to deal with that complaint in its role as a representative of employees, and in its role as a party to the certified agreement, the Union was not a governmental or public body, and its powers and functions, relevantly to the complaint, were not administrative in the sense we have attempted to explain. It follows that the appellant should not have been found to have contravened s 659(2)(e), and that its appeal should be allowed.
60 In the light of that conclusion, it will be necessary for us to consider the orders made by the trial Judge. On 19 November 2007, her Honour made an order under s 665(1)(b) of the WR Act requiring the appellant to reinstate the respondent to the position he held prior to 24 January 2007. Her Honour also made an order under s 665(1)(c) that the appellant reinstate the respondent's sick leave, long service leave and annual leave credits and credits in relation to rostered days off; and an order that, for the purposes of annual leave, long service leave and sick leave, and generally, the appellant treat the respondent as though he had been employed continuously between 24 January 2007 and the date of his reinstatement in employment. These orders should be set aside, and no particular complication arises from that circumstance. Likewise, on 6 December 2007 her Honour ordered that a penalty of $4,000 be imposed on the appellant, and that it be paid to the respondent. These orders too should be set aside.
61 The other orders made by her Honour on 6 December 2007, however, raise issues which are not, or at least may not be, so easily resolved. Her Honour ordered that, on or before 20 December 2007 -
(b) the respondent pay compensation in the sum of $27,643.00 (less any tax required by law to be deducted) to the applicant;
(c) the respondent pay $2,924.31 to the applicant's nominated superannuation trustee for payment into a superannuation fund in respect of the applicant.
These orders were complied with. The compensatory payment ordered reflected the wages that the respondent lost while he was out of employment. That was expressed as a gross sum, but the appellant's obligation was qualified by reference to such sum as it may have been bound to withhold from wages as paid under the PAYG system of tax collection. We assume that the tax so withheld was, or will by now have been, taken into account as a debit item as between the appellant and the Commissioner of Taxation in the calculation of the sums due under the appellant's business activity statements and possibly also in the preparation of its tax return for 2007-2008 (although there is no evidence as to whether this return has yet been lodged).
62 The appellant submitted that, if the appeal should be allowed, the court should order the respondent to repay to it (or to pay to it) the gross sum ordered to be paid by way of compensation and the sum paid to the respondent's superannuation fund. However, these submissions were made at a fairly cursory level, much as though the court should regard it as self-evident that the repayments sought were a natural and just result of our reversing the judgment below. We are not persuaded - or at least not yet persuaded - that this is so. We shall mention some of the concerns to which the appellant's submission appears to give rise.
63 As to the compensatory payment, we were told that the appellant considered itself under an obligation to withhold the sum of $8,708 from the amount paid to the respondent. It asks us to make the assumption that the respondent would, in effect, be in credit for this sum with the Commissioner of Taxation, and that, once the court reversed the compensatory orders of the trial Judge, and required the respondent to pay the gross sum to the appellant, the Commissioner would (if necessary by issuing an amended assessment) give the respondent a refund in this amount. This may seem right, but it is wholly intuitive. It would involve us ordering the respondent to "repay" to the appellant a sum which it never paid to him. We have not been addressed as to how all this would work, nor as to what the Commissioner's position might be.
64 As to the superannuation contribution, we were favoured with no submission as to the contractual, fiduciary or regulatory consequences of the respondent's fund receiving, and crediting to his account, the payment made by the appellant. How the parties might justly be returned to the positions which they would now occupy if her Honour's order had not been made is not in the least clear. An order of the kind sought by the appellant would require the respondent to repay a sum which had never been paid to him, albeit that it was paid to his credit. Particularly in the light of recent financial occurrences of public notoriety, the respondent might not regard it as just that he be required now to pay to the appellant a sum corresponding to that which the appellant, in compliance with her Honour's order, paid into the fund.
65 Because of the undeveloped nature of the parties' submissions on these matters, we propose to go no further at this stage than to set aside the orders made by her Honour. We shall, however, give the appellant 21 days in which to file and serve an application for any further or consequential orders as it may be advised. Any such application should be made by notice of motion in the normal way, which notice should be returnable before the trial Judge, to whom we will conditionally remit the hearing and determination thereof.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Goldberg & Jessup.