Downey v Trans Waste Pty Ltd

As with Wages Boards, each Conciliation and Arbitration Board comprises a body the members of which, apart from the chairperson, represent employers and employees in equal numbers. The Industrial Relations Act not only renamed the Wages Boards. It set up an Industrial Relations Commission as a separate body, although the chairperson of each Board is a member of the Commission. The Commission comprises a President, Deputy Presidents and Commissioners. It may sit in court session, in full session, or be constituted by a single Deputy President or Commissioner. In court session it must comprise the President, who is required to be legally qualified, or a Deputy President who is qualified to be appointed as President. In full session the Commission must comprise three or more members, of whom one at least is the President or a Deputy President.

Under s. 11(1) of the Act, the Commission in full session may hear and determine a number of matters, including "(e) any industrial matter referred to it under this Act by - (i) the Minister; (ii) a Board; or (iii) the chairman of a Board". Section 11(2) provides:

Where it appears to the President that any industrial matter referred to the Commission in full session under paragraph (e) in sub-section (1) may properly be heard and determined by a Deputy President or Commissioner sitting alone he may give directions accordingly and thereupon the matter may be heard and determined by a Deputy President or Commissioner sitting alone. Section 12A(1) provides that a member of the Commission sitting alone may hear and determine "(a) at the direction of the President, any industrial dispute or any matter referred to the Commission under section 11(1)(e)". "Industrial dispute" is defined in s. 3(1), but "matter" or "industrial matter" is not. The definition of "industrial dispute" is as follows: "Industrial dispute" means a dispute arising between an employer and one or more of his employés, or between an association of employés and one or more employers or associations of employers, and includes a threatened or impending or probable dispute and a dispute arising from the dismissal or threatened dismissal from his employment of an employee.

Section 34 sets out the powers of Boards and sub-s.(1) provides that every Board shall have power to make an award relating to any industrial matter whatsoever in relation to the trade or branch of a trade or group of trades for which the Board is appointed. The sub-section then lists a number of specific matters including "(f) industrial disputes". It is necessary to set out in full sub-ss. (5), (6) and (7) of s. 34:

(5) A Board may hear and determine any question in an industrial dispute as to whether the dismissal or threatened dismissal from his employment of an employee, not being an employee who has under any Act or law a right of appeal or review against his dismissal, was or would be harsh, unjust or unreasonable and the Board may direct the employer of that employee to re-employ that employee in his former position on terms that are not less favourable to the employee than if he had not been dismissed from his employment or not to dismiss him from his employment (as the case requires).

(6) Without limiting the generality of the provisions of sub-section (5) in any proceedings under that sub-section the Board may order that the employee be paid an amount not exceeding the amount of the wages he would have received had he been employed in that employment between the time of his dismissal and the time at which he was re-employed.

(7) The Board shall not, in the case of a dismissal, exercise the jurisdiction conferred upon it by sub-section (5) unless an application invoking that jurisdiction is made to the Registrar, by or on behalf of the dismissed employee, within 4 business days after the day on which his employment is terminated.

Section 37(8) provides that a Board or a chairperson of a Board may at any time during the course of proceedings before the Board apply to the President for an order referring any matter before the Board to the Commission for hearing and determination. Section 37(9) provides that upon any application referred to in sub-s.(8) the President may order that any matter before a Board be referred to the Commission for hearing and determination and thereupon the matter shall be so referred.

Section 44, which appears under the heading "Settlement of industrial disputes", provides:

(1) Where it appears to an employer or to the proper officer of an association of employers or of employés that an industrial dispute has arisen in which he or his association has an interest he shall inform the registrar of the dispute.

(2) The registrar, upon being informed pursuant to sub-section (1) of an industrial dispute or upon receiving an application pursuant to section 34(7), shall forthwith inform the President and the chairperson of the Board affected and the chairperson shall convene a meeting of the Board which shall attempt by conciliation to settle the matter of the dispute.

(3) If the Board is unable to settle the matter of the dispute by conciliation the chairperson shall proceed to determine the matter by arbitration.

(3a) If an application is received under section 34(7) in respect of an industrial dispute, the chairperson shall, within 2 business days after the day on which the application is received by the registrar, fix a date for the meeting of the Board.

(3b) In respect of an industrial dispute in relation to the dismissal of an employee, the duties imposed on the Board by sub-section (2), and on the chairperson by sub-section (3), shall be discharged as expeditiously as possible.

(4) A Board interested in the matter of an industrial dispute or the chairperson of that Board or any party to the industrial dispute may at any time during the course of the dispute apply to the President for an order referring the matter of the dispute to the Commission for hearing and determination.

(5) If the existence of an industrial dispute comes to the knowledge of the President or a Board other than by notification from the registrar under sub-section (2), the chairperson of the Board may, and, if directed by the President, must, proceed as if the registrar had given notice of the dispute under sub-section (2).

(6) The Minister may, either upon submission made to him by any person or body or of his own motion, refer the matter of any industrial dispute to the Commission.

(7) Where an industrial dispute is referred to the Commission under this section the Commission shall have and may exercise, in addition to any other powers conferred upon it by or under this Act, all the powers of a Board under section 34.

The appellant's application was received by the Registrar of the Commission, who informed the chairperson of the Commercial Clerks Board. Despite the fact that the Commercial Clerks Board was not a Board which was affected, the chairperson purported to apply to the President pursuant to s. 37(8) for an order referring the matter to the Commission for hearing and determination. The President, purporting to act under s. 37(9), ordered that the matter be referred to the Commission and directed Deputy President Marsh to hear and determine it.

The respondent appeared before Deputy President Marsh and objected to the jurisdiction of the Commission to hear the matter on two grounds: first, that the appellant did not fall within the trade for which the Commercial Clerks Board was appointed; and, secondly, that there was no industrial dispute. The Deputy President upheld the first ground but held that he nevertheless had jurisdiction because the matter was an industrial dispute which he had been directed by the President under s. 12A(1)(a) to hear and determine. He adjourned the further hearing of the matter to enable the respondent to test his ruling in the Supreme Court. Ultimately the Full Court of the Supreme Court made an order prohibiting the Deputy President from further proceeding with the appellant's application: Trans Waste Pty. Ltd. v. Industrial Relations Commission [7] . It is from that order that the appellant appeals to this Court.

It is desirable to mention some of the background of the legislation in its amended form. When the Industrial Relations Act was first enacted, the definition of "industrial dispute" did not include "a dispute arising from the dismissal or threatened dismissal from his employment of an employee". Nor did sub-ss. (5), (6) and (7) of s. 34 or sub-ss. (3A), (3B) or (7) of s. 44 appear in those sections. In Reg. v. Marshall; Ex parte Plumrose (Aust.) Ltd. [8] a dismissed employee's trade union took up his cause by notifying the Registrar of the Commission of a dispute in relation to his dismissal. The President of the Commission directed a Commissioner to hear and determine the matter. The Full Court of the Supreme Court made an order prohibiting the Commissioner from proceeding further upon the basis that there was no industrial dispute within the meaning of the Act. The Court held that a dispute concerning the employment or re-employment of a particular employee was not an industrial dispute because it did not touch the terms or conditions of employment of any employee.

Subsequently, in Slonim v. Fellows [9] this Court overruled Reg. v. Marshall; Ex parte Plumrose (Aust.) Ltd. In Slonim v. Fellows an employee had been dismissed and her trade union had notified the Registrar of an industrial dispute concerning the dismissal. The matter was brought before the chairperson of the Board affected. She took the view that she had no power to determine a dispute involving an employee whose services had already been terminated and who was seeking reinstatement. An order nisi for mandamus was refused by the Supreme Court upon the authority of Reg. v. Marshall; Ex parte Plumrose (Aust.) Ltd. Upon appeal to this Court it was held that, whilst the definition of "industrial dispute" must be read down to confine it to disputes of an industrial nature, it was apt to include a dispute about the fairness of a recent dismissal. The Court noted the difficulty in finding a dispute within the meaning of the definition of "industrial dispute" between a former employee and former employer after the employee's services had been terminated because of the termination of the relationship of employer and employee, but pointed out that in the case before the Court the dispute was between the union and the employer.

While Slonim v. Fellows was pending in this Court, the Industrial Relations Act was amended with the evident intention of overcoming the effect of the decision in Reg. v. Marshall; Ex parte Plumrose (Aust.) Ltd. The Industrial Relations (Further Amendment) Act 1983 Vict. added to the definition of "industrial dispute" the words "and a dispute arising from the dismissal or threatened dismissal from his employment of an employee" and inserted sub-ss. (5), (6) and (7) of s. 34 and sub-ss. (3A), (3B) and (7) of s. 44. Although these amendments were in force at the time this Court decided Slonim v. Fellows, they had no application in that case, which was concerned with events which occurred before the amendments took effect. No submission was made that the amendments threw any light upon the definition of "industrial dispute" as it stood in its unamended form: cf. Grain Elevators Board (Vict.) v. Dunmunkle Corporation [10] ; Hunter Resources Ltd. v. Melville [11] . Nor, in my view, could any such submission have been made. The reasons for the amendments were, as an examination of Hansard reveals, the decision in Reg. v. Marshall; Ex parte Plumrose (Aust.) Ltd. and the pending litigation in this Court: see the Minister's Second Reading Speech, Industrial Relations (Further Amendment) Bill 1983, Legislative Assembly Parliamentary Debates (Hansard), 9 November 1983, p. 1690. The amendments, therefore, gave no real indication of the intention of the legislature with respect to the scope of the unamended definition, being explicable merely as a reaction to the course of judicial decision. In particular, in the light of the decision inReg. v. Marshall; Ex parte Plumrose (Aust.) Ltd., it was not possible to regard the amendments as indicating that the legislation in its unamended form was not intended to extend to the matters covered by the amendments upon the basis that the amendments would otherwise be unnecessary or futile.

1. (1946) 73 C.L.R. 70, at pp. 85-86. 2. (1988) 164 C.L.R. 234, at pp. 254-255.

The power of a Board is, under s. 34, a power limited to the making of an award relating to any industrial matter in relation to the trade or branch of a trade or group of trades for which that Board is appointed. In this case, it is common ground that there was no Board which might exercise the power given by s. 34, in particular sub-ss. (5) and (6), because there was no Board appointed for the appellant's occupation. However, it was said that the Commission has jurisdiction of its own, at all events at the direction of the President, to hear and determine an industrial dispute quite apart from the jurisdiction of a Board to do so. It was submitted that under s. 12A(1)(a) a member of the Commission sitting alone may hear and determine, at the direction of the President, any industrial dispute whether or not it constitutes a matter referred to the Commission under s. 11(1)(e).

Alternatively, it was argued that the industrial dispute concerning the appellant's dismissal was an industrial matter referred to the Commission under s. 11(1)(e). The President then had power, so the argument ran, to refer the matter to a Deputy President under s. 11(2) who was thereby given power to hear and determine it under that sub-section and under s. 12A(1)(a).

The respondent, on the other hand, contended that sub-ss. (5), (6) and (7) of s. 34 confine the manner in which any question in an industrial dispute as to whether a dismissal was harsh, unjust or unreasonable may be raised and determined. Since the appellant could not bring himself within those sub-sections, there being no Board which applied to him, it was said that the Board and the Commission lacked jurisdiction to deal with that question in his case. As an alternative argument, the respondent contended that there was no industrial dispute within the meaning of the definition because, in so far as there was a dispute, the only parties to it were the employer and a person who had ceased to be an employee. This argument raised the problem adverted to, but not decided, in Slonim v. Fellows.

It is convenient to dispose of the last point first. To my mind it is clear that the amendment of the definition of "industrial dispute" in 1983 to include "a dispute arising from the dismissal from his employment of an employee" was intended to extend the definition to a dispute between an employer and an employee whose employment had been determined. It places no strain upon the language of the definition to construe the reference to "a dispute arising between an employer and one or more of his employés" as including a dismissed employee when identifying the disputants in a dispute arising from a dismissal. Clearly, the definition was always intended to embrace a dispute between an employer and one of his employees and, at least after the wording of the definition was expanded to cover specifically a dispute arising from a dismissal, it can scarcely have been intended to exclude a dispute between the employer and the very person dismissed. To construe the definition in such a way would, I think, be unduly narrow and pedantic and contrary to the evident intention of the legislature.

It was not otherwise argued that there was no industrial dispute in this case, no doubt because of the decision in Slonim v. Fellows. That decision makes it clear that a dispute between a single employee and his employer may constitute an industrial dispute provided it is over an industrial matter and that the recent dismissal or threatened dismissal of an employee may constitute an industrial matter. With the extended definition of "industrial dispute" it can hardly be doubted, particularly having regard to s. 34(5), (6) and (7), that a dispute concerning whether a recent dismissal was harsh, unjust or unreasonable is to be regarded as an industrial dispute for the purposes of the Act. It is, of course, relevant that s. 34(7) requires an application invoking the jurisdiction of a Board under s. 34(5) to be made within four business days after the termination of the employee's employment. Necessarily where that jurisdiction is exercised the dismissal will have been recent.

The respondent's other argument occasions more difficulty. It appears that the Commission's jurisdiction was intended to be largely appellate or supervisory, with the determination of matters at first instance being reserved to the Boards. If it were clear that that was entirely so, it would be easier to see the limits of the scheme which lie behind the Act; for Boards are confined in their jurisdiction. Each Board is appointed for a trade, a branch of a trade or a group of trades. As I have said, a Board is to have under s. 34 power to make an award relating to any industrial matter in relation to the trade or branch of a trade or group of trades for which it is appointed and not otherwise. If the functions of the Commission were confined to the exercise of an appellate or supervisory jurisdiction over the Boards, then the limits imposed upon the Boards would correspondingly spell out the limits of the Commission's jurisdiction.

But it is not immediately obvious that the jurisdiction of the Commission is so confined. Under s. 12A(1)(a), a member of the Commission sitting alone may hear and determine, at the direction of the President, "any industrial dispute or any matter referred to the Commission under section 11(1)(e)". Section 11(1)(e) refers to "any industrial matter" and not to "any industrial dispute". The natural construction of s. 12A(1)(a) is to regard the words "referred to the Commission under section 11(1)(e)" as qualifying "any matter" and not "any industrial dispute". If that is so, why then does the President not have power to direct that any industrial dispute, whether or not it has been before a Board, shall be heard and determined by a member of the Commission sitting alone?

An answer to that question is suggested by the fact that the jurisdiction of an individual member of the Commission under s. 12A(1)(a) is contingent upon a direction of the President. Section 12A(1)(a) does not confer power upon the President to give the necessary direction. It is necessary to look elsewhere for that power.

Whilst it is not consistently maintained, the Act does draw a distinction between an industrial matter and an industrial dispute. This is to be seen most importantly in s. 34 where every Board is given power to make an award relating to any industrial matter whatsoever in relation to the trade or branch of a trade or group of trades for which that Board is appointed. Power is then given to every Board with respect to a number of specific matters, including industrial disputes, but without affecting the generality of the initial provision. And then there is special provision made under s. 44 for the settlement of industrial disputes. Sub-section (4) of s. 44 provides that a Board interested in the matter of an industrial dispute, or the chairperson of that Board or any party to the industrial dispute, may at any time during the course of the dispute apply to the President for an order referring the dispute to the Commission for hearing and determination. Although under s. 3(2) of the Act any reference to the "Commission" is to be read and construed as a reference to the Commission in full session, reading s. 12A(1)(a) and s. 44 together, it seems to me that in making an order under s. 44(4) the President must be able to direct that the dispute be heard and determined by a member of the Commission sitting alone. The power of a member of the Commission sitting alone to hear and determine an industrial dispute is derived under s. 12A(1)(a) from a direction of the President and the power of the President to refer an industrial matter to the Commission and - at least in part - to give such a direction is to be found in s. 44(4).

In my view, the specific provision in s. 44(4) for the reference of an industrial dispute excludes, in relation to an industrial dispute, the more general provision contained in s. 37(8) for the referral of an industrial matter. While an industrial matter includes an industrial dispute, the more specific provisions relating to the referral of an industrial dispute, which are contained in s. 44, must, as a matter of statutory construction, prevail. Where there is a repugnancy between the general provisions of a statute and provisions dealing with a particular subject matter, as a matter of general construction the latter must prevail. As Deane J. pointed out in Refrigerated Express Lines (A/asia) Pty. Ltd. v. Australian Meat and Livestock Corporation [No. 2] [12] :

Repugnancy can be present in cases where there is no direct contradiction between the relevant legislative provisions. It is present where it appears, as a matter of construction, that special provisions were intended exhaustively to govern their particular subject matter and where general provisions, if held to be applicable to the particular subject matter, would constitute a departure from that intention by encroaching on that subject matter. And in Anthony Hordern & Sons Ltd. v. Amalgamated Clothing and Allied Trades Union of Australia [13] , Gavan Duffy C.J. and Dixon J. observed: When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power. Dixon J. referred to the same principle in R. v. Wallis [14] when he said of the Commonwealth Conciliation and Arbitration Act 1904: If it confers a specific power with respect to a limited subject or specifies a manner of dealing with it or otherwise provides what the duty or authority of the arbitrator shall be, then upon ordinary principles of interpretation the provision in which that is done should be treated as the source of his authority over the matter, notwithstanding that otherwise the same or a wider power over the same matter might have been implied in or covered by the general authority given by s. 38. This accords with the general principles of interpretation embodied in the maxim expressum facit cessare tacitum and in the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.

This applies especially when the power or duty affirmatively conferred or imposed is qualified by some condition, limitation or direction.

Under s. 37(8) a Board or the chairperson of a Board may, at any time during the course of proceedings before the Board, apply to the President for an order referring any matter before the Board to the Commission for hearing and determination. And under s. 37(9) the President may make an order referring the matter. If, for the purposes of s. 37(8) and (9), "matter" includes an industrial dispute, then s. 44(4), which deals specifically with the referral of an "industrial dispute", would be superfluous. Not only that, but an industrial dispute referred to the Commission under s. 37(9) would not carry with it (at all events expressly) all the powers conferred on a Board by s. 34 as would an industrial dispute referred under s. 44(4), for, under s. 44(7), where an industrial dispute is referred under s. 44, the Commission is to have and to exercise, in addition to any other powers conferred upon it by or under the Act, all the powers of a Board under s. 34. 1. (1980) 44 F.L.R. 455, at p. 469; 29 A.L.R. 333, at p. 347. 2. (1932) 47 C.L.R. 1, at p. 7. 3. (1949) 78 C.L.R. 529, at p. 550.

This is of significance, because s. 44(7) was added at the same time as sub-ss. (5), (6) and (7) were added to s. 34. As I have said, sub-ss. (5), (6) and (7) were added as part of a legislative reversal of the decision in Reg. v. Marshall; Ex parte Plumrose (Aust.) Ltd. [15] . That may have been unnecessary because that case was overruled by Slonim v. Fellows. But in confirming (as it turned out) the power of a Board to deal with an industrial dispute involving the dismissal or threatened dismissal of an employee, the legislature chose to qualify the manner and scope of its exercise. The question confided to the Board is whether the dismissal or threatened dismissal is or would be harsh, unjust or unreasonable and, although it is not beyond argument, the better view is that the remedies provided by those sub-sections are available only where there is a finding that the dismissal or threatened dismissal was or would be harsh, unjust or unreasonable. The only remedies provided are an order for reinstatement or an order that the employee be not dismissed under sub-s.(5) or an order under sub-s.(6) for the payment of an amount not exceeding the amount of the wages that the employee would have received had he been employed between the time of dismissal and the time of re-employment. Furthermore, the Board may not, by reason of sub-s.(7), exercise its jurisdiction unless an application invoking that jurisdiction by a dismissed employee is made within four business days after the dismissal. And the jurisdiction is unavailable, by reason of sub-s.(5), to an employee who has under any Act or law a right of appeal or review against his dismissal.

It is thus possible to go beyond the conclusion that the referral of an industrial dispute to the Commission must take place under s. 44 rather than s. 37. Under s. 34(5), (6) and (7) the jurisdiction of a Board to deal with any question in an industrial dispute as to whether a dismissal or threatened dismissal was or would be harsh, unjust or unreasonable is conferred and it is clear that the Commission was not intended to exercise a similar jurisdiction without the limitations imposed upon a Board. For if the referral of an industrial dispute must take place, as I think it must, not under s. 37, but under s. 44, then upon referral the Commission is expressly given by s. 44(7) all the powers of a Board under s. 34. Bearing in mind that s. 44(7) was added at the same time as sub-ss. (5), (6) and (7) of s. 34 and that at that time the legislative intention was to overcome the effect of the decision in Reg. v. Marshall; Ex parte Plumrose (Aust.) Ltd., it is plain that the powers conferred upon the Commission by referral under s. 44 were not intended, where the dispute referred involved a question as to whether the dismissal or threatened dismissal of an employee was or would be harsh, unjust or unreasonable, to extend beyond the powers conferred upon a Board, save for some express power otherwise conferred by the Act. In particular, it was not intended that the Commission in exercising jurisdiction upon referral should be empowered to disregard the limitations imposed upon the exercise by a Board of its jurisdiction under s. 34(5), (6) and (7).

It follows from what I have said that, in my view, an industrial matter referred to the Commission within the meaning of s. 11(1)(e) does not include an industrial dispute referred pursuant to the provisions of s. 44. This is consistent with s. 12A(1)(a) which distinguishes between an industrial dispute and a matter referred to the Commission under s. 11(1)(e). It is curious that s. 12A(1)(a) refers baldly to "any industrial dispute" and not to an industrial dispute referred to the Commission under s. 44. That, of course, is the foundation of the argument that the Commission has an independent jurisdiction to hear and determine any industrial dispute which, at the direction of the President, may be exercised by a member of the Commission sitting alone. But the origin of such a jurisdiction cannot be s. 12A(1)(a), which assumes its existence. Its origin must be s. 44 which deals specifically with the settlement of industrial disputes and with the manner in which an industrial dispute is to be referred to the Commission. Section 12A(1)(a) is concerned with the manner in which the jurisdiction of the Commission is to be exercised rather than its acquisition.

In the end, the answer in the present case is quite simple. Under s. 44(4) a Board interested in the matter of an industrial dispute, or the chairperson of that Board or any party to an industrial dispute, may at any time during the course of the dispute apply to the President for an order referring the matter of the dispute to the Commission. Clearly, the Commercial Clerks Board, being a Board which was unaffected by the dispute between the appellant and the respondent, was not interested in the dispute so that neither it nor its chairperson was entitled to apply under s. 44(4) for an order referring the matter of that dispute to the Commission. No application was, therefore, made pursuant to s. 44(4) and the President had no power to make the order which he did referring the matter of the dispute between the appellant and the respondent to the Commission. The Commission lacks jurisdiction to deal with the dispute. It is unnecessary to pursue the further question in this case, but even assuming that the dispute between the appellant and the respondent was an industrial dispute within the meaning of s. 44(4) notwithstanding that there neither was nor could be any Board interested in it (an assumption which may be difficult to justify), and even assuming that the application for referral had been made by the appellant as a party to the dispute, upon the view which I have expressed, it may be that the Commission could not exceed the powers of a Board, which are confined to the making of an award relating to the trade or branch of a trade or group of trades for which a particular Board is appointed. Whilst it is unnecessary to express any concluded view, it would seem that, in the absence of the appointment of any Board for any trade or branch of a trade or groups of trades within which the appellant could bring himself, the Commission lacks jurisdiction to determine any question raised by the appellant.