Gibson v Western Sydney Area Health Service

Gibson v Western Sydney Area Health Service - [2003] NSWIRComm 465 - NSWIRComm 2004 case summary — Zoe

[4]

Statutory construction - Unfair contract - Appeal - Statutory construction - Inconsistency alleged between Health Services Act 1997 and Industrial Relations Act 1996 - Visiting Medical Officer in Area Health Service - Whether Commission in Court Session had jurisdiction to hear claims under s 106 of the Industrial Relations Act 1996 - Held, by majority, Court Session has jurisdiction Disorderly Houses Act 1968 s 3 Freedom of Information Act 1982 (Cth) Health Services Act 1997 s 76 to 84 s 85 s 86 to 96 s 97 s 98 s 105 s 106 s 107 s 108 s 109 s 110 s 111 s 112 s 113 s 115 s 116 s 117 to 121 Industrial Arbitration Act 1940 s 25 LEGISLATION CITED : Industrial Relations Act 1996 s 105 s 106 s 154 Industrial Relations Act 1998 (Cth) Local Government Act 1919 s 99 Prostitution Act 1979 Public Hospitals Act 1929 s 29L to 29R s 29K to 29RC s 29M s 29N s 29P s 29Q s 29QA s 29R s 29RA to 29 RC s 29T s 33H to s 33N s 33P s 40BA Public Service Act 1922 (Cth) Australian Communication Exchange Ltd v Deputy Commissioner of Taxation (2003) 77 ALJR 1806 Beahan v Bush Boake Allen Australia Ltd (1999) 47 NSWLR 648, (1999) 93 IR 1 David Jones Ltd v Cukeric (1997) 78 IR 430 Design 23 Pty Limited v Sutherland Shire Council [2003] NSWLEC 90 Director-General Department of Land and Water Conservation v Jackson [2003] NSWLEC 81 Gibson v Western Sydney Area Health Service [2001] NSWIRComm 126 Goodwin v Phillips (1908) 7 CLR 1 Horvath v Commonwealth Bank of Australia (1998) VSCA 51 CASES CITED : Incitec Ltd v Industrial Court of New South Wales (1992) 45 IR 155 Maggs v Comptroller General of Customs (1995) 58 IR 40 Northwest County Council v Dunn (1970) 126 CLR 247 Saraswati v The Queen (1991) 172 CLR 1 Shephard, Re Applications of [1983] 1 NSWLR 96 Shergold v Tanner (2002) 209 CLR 126 Western Sydney Area Health Service v Gibson (2001) 109 IR 359 Whelpton v Kur-Ring-Gai Council (1994) 85 LGERA 120 Woodcrest Homes Pty Ltd v Fair Trading Tribunal [2002] NSWSC 552 HEARING DATES: 03/19/2003; 10/30/2003 DATE OF JUDGMENT: 12/23/2003

[59]

28 Other provisions of a similar nature are found elsewhere in the Health Services Act. Chapter 9 is entitled "The NSW Health Service". The first section in that Chapter is s 115. It provides extensive powers to the Health Administration Corporation to determine conditions of employment of the employees of the NSW Health Services. It is similar to s 40BA of the 1929 statute. Section 115(2) and (3) provide: (2) Conditions of employment. Except in so far as provision is otherwise made by law, the conditions of employment (including salaries, wages or remuneration) of the employees in the NSW Health Service are to be as may be determined from time to time by the Health Administration Corporation. (3) Corporation is taken to be employer for certain purposes. The Health Administration Corporation: (a) is, for the purpose of making any determination under subsection (2), taken to be the employer of the employees in the NSW Health Service, and (b) is, for the purpose of entering into an enterprise agreement relating to the enterprise carried on by a public health organisation, taken to be the employer of the employees of the organisation concerned, and (c) is, for the purpose of any proceedings before a competent tribunal having power to deal with industrial matters, taken to be the employer of the employees in the NSW Health Service. 29 The next section in Chapter 9 is s 116 which deals with the transfer of employees of the New South Wales Health Service. The provision provides certain circumstances where an employee might be dismissed for failure to accept a transfer within the New South Wales Health Service. Section 116(4) gives such dismissals certain legal effect and s 116(5) makes plain that nothing in s 115 affects the unfair dismissal jurisdiction of the Industrial Relations Commission. Those provisions are in these terms: (4) Effect of dismissal for failure to accept transfer. If an employee's employment is terminated under subsection (2): (a) the termination of that employment is to be taken for all purposes not to have been on the ground of redundancy, and (b) no compensation (whether for breach of contract or otherwise) is payable in respect of the termination of the employee's employment. (5) Operation of Industrial Relations Act 1996. Nothing in this section affects the operation of Part 6 (Unfair dismissals) of Chapter 2 of the Industrial Relations Act 1996 in relation to any termination of employment if: (a) the termination is based on a certificate given by the Health Administration Corporation under subsection (2) that the employee concerned has no valid reason for refusing a transfer and there are no reasonable grounds for it to so certify, or (b) the termination is not in accordance with any other requirement of this section.

[63]

Obligation on Court as to statutory construction 32 Finally, some observations might appropriately be made as to the adoption of a different approach to the matter; that is, somewhat different to that adopted by the parties at first instance and on appeal. It is plain that the Court is obliged to reach its own conclusion as to what it considers is the correct interpretation of the relevant statutory schemes and their interaction. Pearce and Geddes in Statutory Interpretation in Australia, 5th Edition, 2001 at pp 4 - 5 observe: [1.5] McGarvie J in Accident Towing & Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529 at 547 pointed out that responsibility rests with the court for the interpretation to be placed on an enactment. He cited Lord Wilberforce in Saif Ali v Sydney Mitchell & Co (A Firm) [1980] AC 198 at 212: 'Judges are more than mere selectors between rival views - they are entitled to and do think for themselves'. The fact that counsel have not supported a particular interpretation of legislation does not, indeed must not, prevent a court from adopting that interpretation if the court considers the interpretation to be correct. The approach of McGarvie J was adopted in Whelpton v Kur-Ring-Gai Council (1994) 85 LGERA 120 at 126. That passage, or the observations there cited of Lord Wilberforce or those of McGarvie J, has been followed in a number of recent decisions of New South Wales courts. The observations, for example, have been cited frequently in judgments of the Land and Environment Court. In addition to the judgment of Bignold J in Whelpton v Kur-Ring-Gai Council (1994) 85 LGERA 120 cited in Pearce and Geddes, other judgments of that court include Director-General Department of Land and Water Conservation v Jackson [2003] NSWLEC 81 ( Bignold J) and Design 23 Pty Limited v Sutherland Shire Council [2003] NSWLEC 90 ( Lloyd J). A similar approach was taken recently by Bell J in the Supreme Court in Woodcrest Homes Pty Ltd v Fair Trading Tribunal [2002] NSWSC 552. See also the observations of Gleeson CJ and Kirby J, albeit in dissent, in the recent judgment of the High Court in Australian Communication Exchange Ltd v Deputy Commissioner of Taxation (2003) 77 ALJR 1806, respectively at [7] and [51], where their Honours said: [7] First, there is nothing unusual about a trial court, or an appellate court, adopting a view of the facts, or of the law (including the construction of a written instrument), different from the views for which the parties to litigation respectively contend. In the present case, each party contended for a particular meaning to be given to the Award. The Full Court of the Federal Court was not bound to adopt either of those meanings. It was entitled to reach its own conclusion as to what the Award meant, subject to the requirements of procedural fairness.

[98]

56 Although the principle is capable of being stated in simple and straightforward terms, its application at times presents some difficulty. An example is provided by the decision of the Court of Appeal of the Supreme Court of Victoria in Horvath v Commonwealth Bank of Australia (1998) VSCA 51. Section 49 of the Victorian Supreme Court Act 1986 provided, inter alia, that a contract entered into by a minor for the repayment of money lent or to be lent was void. The question for determination by the court was whether there was inconsistency between that provision and a provision of the earlier Transfer of Land Act 1958 which provided that the title of a registered mortgagee was indefeasible in circumstances where a minor had mortgaged land. The three members of the court concluded that both pieces of legislation could stand together, so that the mortgagee bank was entitled to enforce the mortgage. In these circumstances, there was no question of the later provision being so inconsistent with the earlier provision that the earlier provision could not stand. An example of what is considered the appropriate approach to an issue of this kind is to be found in the judgment of Ormiston JA, who said: [34] The answer to the question posed, as I would understand it, flows from a correct characterisation of the two statutes as consistent or inconsistent one with the other. There is a strong presumption that Parliament does not intend to contradict itself but rather intends both relevant acts to operate within their given spheres: Butler v. Attorney-General (Victoria) at 276 and 290. No earlier statutory provision is to be treated as repealed or derogated from by a later enactment unless an intention to do so must necessarily be implied, and ordinarily there must be a very strong basis supporting any such implication, for the Parliament is generally presumed to intend both provisions to operate without there being any such implicit repeal or derogation: cf. Saraswati v. The Queen (1991) 172 C.L.R. 1 at 17. Here, although there can be no doubt that, if not registered, the mortgage would have been unenforceable by the respondent because it was void by reason of the relief provision, that provision says nothing as to the effect of registration or the operation of any of the indefeasibility provisions of the Transfer of Land Act . It is directed to the enforceability of certain contracts. The respondent bank has conceded that it cannot enforce the loan agreement against the appellant. Nevertheless the better view seems to be that the word "void" was never intended to mean that the contract in question was totally ineffective: cf. Pearce v. Brain [1929] 2 K.B. 310 and Woolf v. Associated Finance Pty. Ltd. [1956] V.L.R. 51 and see Greig and Davis, Law of Contract pp.779-780. Whether or not a different construction of the word "void" may have had other consequences (and the forgery cases suggest otherwise), the fact is in this case that the mortgage was registered in the conventional way under the Act. Whatever may have been the position before such registration, the legislature must be treated, subject to the presently irrelevant exceptions as to fraud and the like, as having given an immediately indefeasible title in the land to the respondent bank as mortgagee unless the relief provision should prevail as being relevantly inconsistent.

[108]

64 In considering the matter his Honour took into account a number of matters: 1. In exercising jurisdiction under the Industrial Arbitration Act , the tribunal was required to consider whether the employer had exercised the right of termination "so harshly or oppressively against the employee as to amount to an abuse of that right." The investigation needed to be undertaken by the tribunal "does not differ very greatly from that which needs to be made in an inquiry conducted under s 99." (263). His Honour concluded: "… the two investigations seemed to have enough in common to raise serious doubts whether it was intended by the legislature that both may be pursued in relation to the same employee" (264). 2. "[E]ven if (s 99) does not displace all other rights and remedies arising out of the contract of employment and its termination, it may indicate sufficiently an intention that employees to whom it applies may have their services terminated effectively and finally in accordance with its provisions and an intention that its provisions are not to be rendered ineffectual by the making of a reinstatement order" (265). 3. The fact that proceedings under the Industrial Arbitration Act were taken by a union rather than being commenced personally by an individual employee did not affect these propositions. It was necessary to look at the effect of what was sought in proceedings under the Industrial Arbitration Act which was directed to the reinstatement of the particular employee. That is the same question as is dealt with in s 99 of the Local Government Act . 4. "[W]hat s 99 is careful to preserve is the right of the council, after having the benefit of the inquiry and a report, to make for itself the ultimate decision whether to terminate the employment or not. But if the provisions of the Industrial Arbitration Act apply, that right may be destroyed … the intention is indicated that the power of a council to dismiss its servants is to be restricted in relation to the servants to whom s 99 applies to the extent therein specified and only to that extent. It was not intended that in relation to such servants its power of dismissal might be frustrated completely and that the council should be compelled to employ and pay a servant whose employment it has decided to terminate" (267).

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