[2003] HCA 2
Police Integrity Commission v Shaw (2006) 66 NSWLR 446 at 462
[2006] NSWCA 165
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
Ex parte Australian Workers' Union (1983) 153 CLR 415
[1983] HCA 35
R v Connell
Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407
[1944] HCA 42
R v Hickman
ex parte Fox and Clinton (1945) 70 CLR 598
[1945] HCA 53
R v Metal Trades Employers' Association
Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 248
[1951] HCA 3
R v Murray
Ex parte Proctor (1949) 77 CLR 387
[1949] HCA 10
Re Australian Railways Union
Ex Parte Public Transport Corporation (1983) 117 ALR 17
[1993] HCA 28
Re Brack
Ex parte Operative Painters and Decorators Union of Australia (1984) 58 ALJR 125
51 ALR 731
Re Building Workers' Industrial Union
Ex parte Gallagher (1988) 62 ALJR 81
76 ALR 353
[1988] HCA 4
Re Minister for Immigration
Ex parte S154/2002 (2003) 210 ALR 43
[2004] FCA 1104
Sullivan v Department of Transport (1978) 20 ALR 323
Judgment (14 paragraphs)
[1]
Background
The proceedings before the Commission arise in the context of the PSA making an application for a new award to cover employees working within Destination NSW. Up until the current proceedings, these employees have been regulated by various documents.
The Commission submits that some employees have been covered by a previous award of the public service; and some have not been covered by any award, but instead have entered into "individual common-law contracts of employment" with the government employer, based upon a standard form agreement. Whether the executing of an individual "common-law contract of employment" renders the person not covered by an award is an interesting sub-issue before the Court.
The Appeal Decision allowed an appeal brought by the PSA. The PSA had appealed the decision of Commissioner Webster (the Primary Decision) in which the Commissioner had held that the industrial instrument, being the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 (NSW) (hereinafter "the Award"), did not apply to the non-executive employees working in Destination NSW (the employees).
The Appeal Decision and the Primary Decision concerned the construction of cl 6 of the Award, which relevantly provides:
"6. Coverage
(a) The provisions of this award shall, subject to cl 6(b) below, apply to all non-executive public service employees as defined in the Government Sector Employment Act, 2013 employed in Departments, Public Service executive agencies related to Departments, and separate Public Service agencies, listed in Schedule 1 to the Government Sector Employment Act, 2013.
(b) Where another industrial instrument or arrangement applies to a group of employees covered by this Award the following interaction rules apply:
…
(iii) If the other industrial instrument or arrangement comprehensively determines conditions of employment for a group of employees then this Award shall have no application in relation to that group of employees;
…
(v) If none of subclauses 6(b)(i)-(iv) apply, and the other industrial instrument or arrangement is silent as to its interaction with this Award, then:
a. if the application of the other industrial instrument or arrangement is inconsistent with the application of this Award, the other industrial instrument or arrangement applies to the extent of the inconsistency; otherwise
b. this Award applies.
(c) Any officer, Departmental temporary employee and casual employee who, as at 23 February 2014, was employed in a Department listed in Schedule 1, Part 1, of the Public Sector Employment and Management Act, 2002 and who was covered by this award on that date will continue to be covered by this award.
NOTATION: This clause was amended in 2014 and again in 2017 with the agreed intention of the parties to maintain the status quo of industrial coverage, by award, other industrial instrument or arrangement, following the commencement of the Government Sector Employment Act 2013 on 24 February 2014."
In the Primary Decision at [79], Commissioner Webster concluded that the existing arrangements concerning the employees "stood alone" and were "comprehensive", such that cl 6(b)(iii) of the Award applied to exclude the application of the Award in its entirety to the Employees. It should be noted that this decision was a preliminary decision in the context of the larger application for a new award.
The Appeal Decision allowed the appeal and quashed the Primary Decision, at least insofar as it held that cl 6(b)(iii) of the Award applied. It concluded that cl 6(b)(v) applied to the circumstances of the employees. [3]
The Appeal Decision also rejected the PSA's submission that the Commissioner had erred in construing the word "arrangement". [4] In so doing, the Appeal Decision determined that the system of a standard contract with individual variations constituted an "arrangement".
Notwithstanding that the Appeal Bench found, as already stated, [5] that the individual standard contracts were an "arrangement" or a series of arrangements, to which distinction greater attention will be paid in these reasons, the Appeal Bench determined that Commissioner Webster had erred in concluding that the arrangement in place "comprehensively determines conditions of employment". [6] The Appeal Bench noted that the "other arrangement might only be regarded as comprehensively determining conditions of employment if it encompasses substantially the same areas as are dealt with in the [Award]". [7] The Appeal Bench found that the existing arrangement did not sufficiently encompass the matters dealt with in the Award.
The Appeal Decision then concluded that, given cl 6(b)(iii) of the Award did not apply, cl 6(b)(v) necessarily applied. [8] The Commission then referred the parties into conference with each other to determine the extent to which the Award applied as a consequence in the context of the broader application. [9]
Further, the Appeal Bench remitted the matter to Commissioner Webster for conclusion of the proceedings. The proceedings have not concluded and there is no stay of the proceedings continuing and no stay has been sought or obtained.
The Commission, both in its initial jurisdiction and on appeal, was concerned with the making of a new Award. For reasons associated with the exercise of its discretion, the Commission has taken the view that a new Award will, prima facie, reflect the conditions that exist prior to the making of the Award. There is a legislative or regulatory basis for such an approach.
As a consequence, the determination as to whether the Award applies is a determination, preliminary to the exercise of the jurisdiction of the Commission, which informs the exercise of the discretion as to the terms and conditions of employment that may be imposed in the new Award.
In the course of the proceedings before the Court, albeit it is not a matter raised at the forefront of the decisions of the Commission, it became clear that the employees working at Destination NSW will fall into a number of categories, only some of whom were covered by that which the Appeal Bench determined was an "arrangement". However, in the circumstances, of different conditions applying, how the new Award would reflect existing conditions of current employees is a matter, it would seem, wholly within the discretion of the Commission in its award-making power.
As already stated, the only ground of judicial review is an alleged denial of procedural fairness. The allegation by the Secretary is that the Appeal Bench failed to afford procedural fairness to the Secretary in reaching the Appeal Decision conclusion concerning the construction of cl 6(b)(iii) of the Award.
The Secretary provides particulars of the alleged denial of procedural fairness in the following terms:
1. The appeal bench failed to inform the plaintiff that a critical issue in the proceedings was whether the words "comprehensively determines" should be construed as meaning "encompasses substantially the same areas as I dealt with in [the Award]", for the purposes of subclause 6(b)(iii) of the Award;
2. The appeal bench's conclusions regarding the proper interpretation of subclause 6(b)(iii) of the Award did not flow from an obvious or natural evaluation of the material available;
3. The Secretary did not have any opportunity to make submissions and/or tender evidence in respect of the issue of construction referred to in the particular outlined in 19(i) above;
4. Further, or in the alternative, the Secretary did not have an opportunity, or a reasonable opportunity, to make submissions and/or tender evidence on the issue of whether the "arrangement" in issue "encompasses substantially the same areas as are dealt with" in the Award.
In the reply submissions, filed on 29 July 2020, the Secretary noted that it did not wish to press grounds 1 to 3 of the Summons, which alleged that the Appeal Bench erred in construing the coverage clause of the Award by applying an incorrect test and taking into account purportedly irrelevant considerations. As a matter of abundant caution and completeness it is appropriate to set out the filed grounds upon which the Secretary relied. They were in the following terms:
"1. The Full Bench applied the wrong test in determining that the arrangement applicable to non-executive public service employees working within Destination NSW did not 'comprehensively determine[] conditions of employment' within the meaning of sub-clause 6(b)(iii) of the Award, and thereby misapprehended the scope of its powers to quash the findings made at the first instance (Full Bench Decision [60]).
2. Further to Ground 1, in particular:
a. the Full Bench erred in construing sub-clause 6(b)(iii) of the Award to produce the result that an 'arrangement' will be regarded as comprehensively determining the conditions of employment within the meaning of sub-clause 6(b)(iii) of the Award only if it 'encompasses substantially the same areas as are dealt with in' the Award (Full Bench Decision [59]); and
b. the Full Bench erred in determining that the requirements of sub-clause 6(b)(iii) were not satisfied, in circumstances where it had found that the 'arrangement' in issue was 'comprehensive' in a stand-alone sense (Full Bench Decision [57]- [58]).
3. The Full Bench erred by taking into account an irrelevant consideration, namely, the extent of coverage of the Award, when determining whether the 'arrangement' in issue was comprehensive for the purposes of sub-clause 6(b)(iii) (Full Bench Decision [58]-[59]).
4. In the alternative to Grounds 1 to 3, the Full Bench failed to afford procedural fairness to the plaintiff in reaching the Commission's conclusion concerning the construction of sub-clause 6(b)(iii)."
While the parties, necessarily, concentrated on the allegation of denial of procedural fairness, the PSA sought to have the Court refuse orders, if it were otherwise minded to issue them, on the basis of discretionary considerations.
First, it contended that the privative provision in the Industrial Relations Act 1996 (NSW) (hereinafter referred to as "the Act") precluded orders of this Court, other than on the basis of jurisdictional error. Secondly, it maintained that the other aspects that it had pressed before the Commission were wrongly decided by the Commission and, if the Court were of that view, then, as a matter of discretion, the Court would not issue relief of the kind sought by the Secretary.
The issues raised by the PSA are not so readily apparent that they can be determined without an appropriate analysis of material that, it seems, the parties took for granted. The current terms of the Act have altered dramatically over the past as a consequence of two fundamental issues.
First, the High Court determined that privative provisions could not be used to oust the jurisdiction of the Supreme Court to issue certiorari on the basis of jurisdictional error. [10] The judgment of the High Court in Kirk, or the litigious history to it, was the catalyst for an alteration in the wording of the privative provision that existed prior thereto.
Secondly, the utilisation by the Federal Government of the corporation's power, [11] and other powers, for the regulation of industrial relations and the eschewing of reliance upon the provisions of s 51(xxxv) of the Constitution for the power in that regard, has dramatically affected the jurisdiction of the Commission and other state bodies.
The consequential alterations to the manner in which the Commission, thereafter, operated have resulted in a bifurcation of its functions and jurisdiction in a range of matters, hitherto within the remit of the Commission (whether in its arbitral capacity or the Commission in Court Session, also called the Industrial Court), was transferred to the District Court of New South Wales and this Court, leaving to the Commission primarily its arbitral function.
The effect of those changes has been to import, in part at least, the division in jurisdiction that at times had plagued the former Federal industrial tribunals, being the distinction between arbitral and judicial functions. It is necessary to look more closely at the scheme of the Act and the division of the functions hitherto exercised by a tribunal and the effect of the privative provision on orders made in relation to such different functions.
[2]
The Scheme of the Industrial Relations Act
Notwithstanding the breadth of the foregoing heading, it is neither appropriate nor necessary to summarise the operation of the Act in its entirety. The Act must be read as a whole and each of its provisions construed on the basis of the achievement of harmonious goals. [12] The only aspects of the scheme of the Act that are to be the subject of comment in this section of the reasons for judgment are those that are essential or helpful in understanding the issues before the Court.
As earlier stated, the Act was amended dramatically after alterations in the framework for the regulation of wages and conditions of employment throughout Australia were made. The Act expressly refers to the provisions of the Fair Work Act 2001 (Cth), and the referral of powers by the State of New South Wales to the Commonwealth under the Industrial Relations (Commonwealth Powers) Act 2009 (NSW). [13]
A Federal industrial instrument is defined; [14] and while there may be some employees and/or the regulation of some employment that would be incapable of referral to the Commonwealth, it is unnecessary to deal at any length with such a proposition. It is sufficient, for present purposes, to note that pursuant to the Act and the relevant regulations, public servants and employees of the State, in large measure, are covered by the jurisdiction of the Commission.
The term "employee" is defined, [15] albeit in a more truncated form than previously, in a traditional manner as persons employed in the industry, whether on salary or wages or any deemed employee. Persons are deemed employees pursuant to the terms of s 5(3) and Sch 1 to the Act.
The term "industrial matters" is defined to mean matters or things affecting or relating to work done in any industry or the privileges, rights, duties or obligations of employers or employees in any industry. [16] In its earlier emanations, an expanded version of that definition was held to include certain disputes as to legal rights. Whether or not that would still be the case may depend upon whether the context of the Act now alters that approach.
The Commission is empowered to make awards of its own initiative or on application or in the course of arbitration under Chapter 3 of the Act. An application for an award may be made only by an employer, which, for present purposes, includes the Secretary, and an industrial organisation, which includes the PSA and a State Peak Council.
[3]
Certiorari for error of law
As noted earlier, one of the issues before the Court relates to the effect of s 179 of the Act. The PSA submits that the privative provision, contained in s 179 of the Act, precludes orders of the kind sought by the Secretary for error of law within jurisdiction. As earlier outlined, there can be little doubt that the Commission has the jurisdiction to hear and to determine that which was before it and, in particular, to interpret the Award and the statute.
The purpose in discussing certiorari for error of law is that it would seem that the issue informs an understanding of the difference in operation between s 179 before and after the major amendments. Such a discussion necessarily involves an analysis of the judgment of the High Court in Kirk. [27]
Prior to the judgment in Kirk and the significant alteration in the jurisdiction of the Commission, the privative provisions in s 179 were held to be robust and effective and to prevent orders in the nature of prohibition, mandamus and certiorari even in circumstances where jurisdictional error had occurred. [28]
Houssein, supra, reserved the position in relation to jurisdictional error and error relating to "non-industrial matters". Nevertheless, the High Court had upheld the ouster of the jurisdiction of the Supreme Court in relation to orders in the nature of certiorari against the industrial tribunal on many occasions.
There were breaches in the wall of that ouster.
By the time the High Court came to consider Kirk it was required to consider whether the privative provisions ousting the jurisdiction of the Supreme Court were inconsistent with the provisions of Ch III of the Constitution. Fundamentally, the High Court held that the provisions of Ch III required a court fitting the description of the Supreme Court of the State to be in existence and able to exercise jurisdiction.
In part, at least, in the absence of such a court, the constitutional position of the High Court of Australia at the apex of the judicial system in Australia would be undermined. Because, at federation, each of the Supreme Courts referred to in s 73 of the Constitution had jurisdiction to issue certiorari, although there may have been issues associated with the appropriate remedy or orders that would be made in the face of a privative provision, [29] the Constitution required the State Supreme Courts to continue and to be able to exercise such jurisdiction.
[4]
Natural Justice
It is fair to say that the term natural justice and procedural fairness are used, almost universally, wholly interchangeably. However, in so doing, sight is often lost of the fact that the rules of natural justice have two limbs: the hearing rule and the bias rule. As a matter of practicality, collecting all the requirements of the hearing rule into a general provision relating to hearing may, itself, elide very different requirements.
Ordinarily, a court or tribunal required to act judicially is required to give each party before it the reasonable opportunity to prepare and to present that party's case. [57] However the duty to provide a reasonable opportunity does not impose upon any tribunal or decision-maker the "impossible task of ensuring that a party takes the best advantage of the opportunity" so given. [58]
Further to the foregoing, the hearing rule requires a tribunal to hear a person before making a decision affecting that person's interests. There are a number of particular issues associated with each of those that is an issue for the Court to develop.
The second aspect of the rule in natural justice is the bias rule or, as I would prefer to refer to it, the rule against the perception or appearance of bias. That rule, applicable in all common law jurisdictions, is that no person may be a judge in their own cause and that each party is entitled to an impartial decision-making process. The difficulty with referring to the rules of natural justice as rules of procedural fairness is that the rules are not necessarily "procedural". Some aspects of the audi alteram partem rule are indeed procedural.
Having made that general position clear, it is now trite that the rules of procedural fairness are not uniform. Nor are they immutable. The content of the rules will depend, very much, on the context in which they are to be applied. The rules may vary depending upon the nature of the tribunal and the kind of proceedings with which the tribunal is concerned.
The Commission no longer exercises judicial power. The power or jurisdiction that it exercises was, at one stage in the development of industrial tribunals, referred to as "quasi-judicial". If that term has meaning, it has been lost over the years.
In truth, the Commission creates rights and facilitates the agreement between parties that alter rights.
[5]
Appeal decision
The Appeal Decision issued on 13 January 2020 and resulted in leave to appeal being granted; the upholding of the appeal in so far as the primary member of the Commission found that cl 6(b)(iii) of the Crown Employees (Public Service Conditions of Employment) Reviewed Award applied and that cl 6(b)(iv) did not apply; and quashed findings of the Commission in relation to the consequential circumstances associated with the immediately preceding decision. The PSA was the appellant.
The Commission, on appeal, summarised the Primary Decision and extracted significant portions thereof. At [4] of the Appeal Decision, the Commission described the manner in which the Commissioner described the contest between the parties in the following terms:
"[29] The controversy in this matter is whether the Destination NSW staff are subject to the interaction rules set out in cl 6(b)(iii) and/or (v) of the Current Coverage Clause of the Conditions Award. Pursuant to the introductory words of clause 6(b), the interaction rules apply, 'Where another industrial instrument or arrangement applies to a group of employees covered by this Award'. A threshold issue for determination is whether Destination NSW staff is subject to another 'arrangement', invoking the interaction rules.
[30] The parties were not in dispute with respect to how Destination NSW staff have been engaged by the Second Respondent since 2011. As set out above at paragraph [10], staff who were engaged at the inception of Destination NSW were transferred with the intention of retaining their existing conditions of employment with new recruits negotiating common law contracts and other conditions being determined by the organisations policies. The Respondents advances that this set of circumstances constitutes an 'arrangement applying to a group of employees' pursuant to the Current Coverage Clause while the Applicant says that it does not."
The Appeal Decision summarised the Commissioner's determination as being that the argument of the applicant was that the "arrangement" should be interpreted as having a narrower meaning than its ordinary definition and that argument had some force in that there was good reason why an arrangement had to be "collective". [59] The Commissioner determined that the term "arrangement" in cl 6 of the Award did not need to be collective.
The appeal before the Commission involved three substantive grounds and a catch-all provision.
[6]
Plaintiff's Submissions
The plaintiff relies upon the Affidavits of Sue Huang dated 3 June 2020 and of Ross Pearson dated 29 July 2020. The matters adduced in those Affidavits are formal and the evidence has otherwise been the subject of reference in these reasons for judgment.
First, the plaintiff concedes or submits that s 179 of the Act is a privative provision which, on the view of the plaintiff, entitles the plaintiff relief only if it were able to demonstrate jurisdictional error. The plaintiff submits that a denial of natural justice, or a failure to afford procedural fairness, is jurisdictional error. [65]
The plaintiff submits that it was not afforded the opportunity to make submissions concerning the construction of cl 6(b)(iii), ultimately adopted by the Appeal Bench at [59]-[60] of the Appeal Decision, namely, that, in determining whether the provision applies, one must have regard to whether the other instrument or arrangement encompasses the same areas as the Award.
The plaintiff submits that neither party had advanced or adverted to that construction. The plaintiff submits that the central issue before the Appeal Bench was the application of the subclause. With that latter aspect there can be little disagreement, but later comment will be made as to what "the application of the subclause" ordinarily would entail.
The plaintiff's submissions are that the parties submitted, both during the course of the primary proceedings and on appeal to the Commission, that the application of cl 6(b)(iii) of the Conditions Award centred on the relevance of the absence of a single agreement or single arrangement, and whether the circumstance that the employees were subject to contracts in a standard form, with minor individual variation, was a single agreement or arrangement.
The plaintiff submits that the adoption of a construction by the Commission, which required a comparison between the Award and the relevant instrument or arrangement said to be comprehensive was not a conclusion that arose naturally from the material before the Commission.
As a consequence, the plaintiff submits that it has not been afforded an opportunity to put whatever case it may have wished to put in opposition to the course eventually taken by the Commission. By that, I take it to mean that the plaintiff submits that it did not in fact put submissions in opposition to the course taken by the Commission and was not given the opportunity, by some form of notice, by the Commission to put such submissions.
[7]
Defendants' submissions
As already indicated, the second defendant, being the Commission, submitted to any order of the Court, save as to an order for costs.
The first defendant's submissions commence with a denial that the plaintiff has been denied procedural fairness. The PSA, pointing to the proceedings below, including before the Commissioner, points to the proposition that the plaintiff, initially, did not press a construction that resulted in cl 6(b)(iii) of the Award applying.
At first instance, the plaintiff submitted that cl 6(b)(v) of the Award applied and only adopted the position that cl 6(b)(iii) of the Award applied after the suggestion of the Commissioner. In so doing, the first defendant's submissions referred to the Appeal Decision at [53].
Thus, the question of whether cl 6(b)(iii) of the Award applied was a matter that was expressly raised on the appeal. Having raised the applicability of cl 6(b)(iii), and the parties adopting different positions in relation thereto, the construction of cl 6(b) was well and truly opened up as an issue before the Commission and each party was provided with an opportunity to make submissions on the issue.
The PSA refers, expressly, to its notice of appeal to the Commission, recited above, in which it raised error in the finding that the individual contracts of employment "constituted an industrial instrument or arrangement that 'comprehensively determines conditions of employment'".
The PSA relies upon an exchange between the plaintiff and the Commission, at the appeal, [69] which is in the following terms:
"COMMISSIONER SLOANE: Just on the question of assuming we're with you, which paragraph do you say applies? It seems, as I read the transcript, you seem - in terms of whether it's a(iii) or b(v), as I read the transcript in the proceedings below you seem to be - the respondent seems to be tending towards (v) applying and not (iii). Is that the position that you maintain now?
EASTON (for the plaintiff): I've forgotten. Whichever one it is I'm right. Our case was advanced on reliance on (iii) and then Commissioner Webster- yes, we initially relied on (v) and then (iii) was suggested and we took up the Commissioner on her enquiry."
The first defendant, the PSA, submits that the Commission, in order to comply with the rules of procedural fairness, did not need to disclose its potential reasoning process in relation to a purely legal question as to the interpretation of the Award. It is submitted by the PSA that procedural fairness does not ordinarily oblige a decision maker to expose the reasoning process for comment in the course of the hearing and, in that regard, the PSA relies on various judgments. [70]
[8]
Issue determined
The parties before the Commission sought for it to determine whether the Award applied to employees, or some employees, employed by Destination NSW. For this purpose each party relied upon its interpretation of cl 6 of the Award. Various propositions were put by each party on the proper construction of the Award, in that respect, and each party put alternate submissions as to what would apply if their primary submission as to the appropriate construction failed.
The Commission was invited to construe cl 6 of the Award. It did so. It did so in a manner that, ultimately, neither party preferred. In and of itself, that is not a basis upon which the Commission can be criticised.
There are a number of aspects of the construction that are required before one needs to deal with the issue of the remedy, if any, for what is said to be a denial of procedural fairness.
[9]
Meaning of "Arrangement"
At [8] of these reasons for judgment, the Court has set out the relevant provisions of cl 6 of the Award. Clause 6 provides that the Award applies to all non-executive public service employees, unless cl 6(b) applies. The introductory words to cl 6(b) render 6(b)) applicable "where another industrial instrument or arrangement applies".
The parties have paid much attention to the term "arrangement". Neither party has paid very much attention to the use of the word "another". Nevertheless, the term "arrangement" needs some explanation.
The term "arrangement" is used in Part 9 of the Act, dealing with unfair contracts. The Court is given the jurisdiction to deal with unfair contracts, which term is defined to include "any contract or arrangement under which work is done by a person in the capacity of an employee". It is also defined to include a related condition or collateral arrangement. The term, in that context, has been the subject of much authority.
Where used to expand the meaning of "contract", an arrangement is plainly a broader concept. An "arrangement" is a term wider than "contract" and, in the context of cl 6(b) of the Award, a term wider than "instrument".
Nevertheless, the word "arrangement" has been the subject of much authority and has universally been treated as importing "a meeting of the minds of those said to be parties to the arrangement". [72] In Australian Competition and Consumer Commission v Amcor, Sackville J, said:
"[75] An arrangement or understanding for the purposes of s 45(2) of the TP Act is apt to describe something less than a binding contract or agreement: Top Performance Motors Pty Ltd v Ira Berk (Queensland) Pty Ltd (1975) 24 FLR 286 (Aust Ind Ct, FC), at 290-291, per Smithers J. However, in order for there to be an arrangement or understanding for the purposes of s 45(2), there must be a meeting of the minds of those said to be parties to the arrangement or understanding. There must be a consensus as to what is to be done and not merely a hope as to what might be done or happen: Trade Practices Commission v Email Ltd (1980) 43 FLR 383 (Lockhart J), at 385; Ira Berk, at 291, per Smithers J. Ordinarily, an arrangement or understanding involves communication between the parties arousing expectations in each that the other will act in a particular way: Email, at 395. There is no necessity for an element of mutual commitment between the parties to an arrangement or understanding, although in practice such an arrangement or understanding would ordinarily involve reciprocity of obligation: Trade Practices Commission v Service Station Association Ltd (1993) 44 FCR 206 (FC), at 230-231, per Lockhart J."
[10]
Was a reasonable opportunity denied to the plaintiff?
As already indicated by reference to the submissions of the PSA, the Commission had been invited to determine whether the provisions of cl 6(b)(iii) or cl 6(b)(v) applied. That was not only a matter opened by the Commission, it was invited by the parties. It was the very subject of the appeal.
The parties were submitting to the Commission that either one or other of those provisions should apply, or none of them should apply. It would be an odd result if, in those circumstances, the Commission were not entitled to determine that one or other of them did apply.
As I understand the submission on the natural justice point, it is that the Commission decided the issue on a basis that the plaintiff did not argue. Further, it would have liked to have argued it. There are a number of aspects and/or comments that ought to be made in relation to such a proposition.
As the High Court [82] has said;
"[31] In considering the scheme of legislation relating to the exercise of a particular kind of power, it is necessary to pay regard to the practical context in which the decision-maker must consider whether to exercise the power. This may be of particular importance where, as here, the complaint is of a failure by the decision-maker to communicate something to an affected person before a decision is made. It is the potential for a decision to affect rights, interests, or legitimate expectations, that attracts the requirement of procedural fairness. But decisions of that character are made in varying contexts. Here we are concerned with a decision to be made following a formal application. The nature, and extent, of communication between applicant and decision-maker that is in contemplation, in such a general context, will vary. At one extreme, an application may be made to a judicial decision-maker, in a context in which curial standards of procedural fairness will apply to the fullest extent. Even in such a case, fairness does not require a judicial officer to make a running commentary upon an applicant's prospects of success, so that there is a forewarning of all possible reasons for failure. Most administrative decisions are made in circumstances where a much less formal and extensive form of communication than that which occurs in a court is contemplated. In many cases, it is not contemplated that the applicant will either see, or hear anything from, the decision-maker before the decision is made." [83]
[11]
Nature of the appeal decision
Thus far, the Court has rejected the discretionary basis upon which one would or might otherwise refuse a remedy. Further, the Court has determined, in light of the argument both at first instance and on appeal, that the plaintiff has not been denied a reasonable opportunity to prepare and to present its case. As a consequence, the natural justice point, sought to be agitated by the plaintiff, has not, in the view of the Court already expressed, been made out.
Nevertheless, on the possible hypothesis that the Court otherwise constituted may have a different view as to the reasonableness of the opportunity provided, it is necessary to deal with whether a remedy would be granted, in any event, if there were to have been a denial of a reasonable opportunity to prepare and to present the plaintiff's case on the appeal. For that purpose, it is necessary to examine the nature of the decision that was made and the context in which it was made.
As earlier stated in these reasons for judgment, the Appeal Decision and the Primary Decision of the Commissioner were decisions made on a preliminary point to ascertain the application of the Award for the purpose of the Commission informing itself as to whether, and if so what, pre-existing conditions applied to the employees for whom the PSA was seeking a new award. As a result of the Appeal Decision, and as a result of the Primary Decision of the Commissioner, no award was made and there was no alteration of any terms or conditions of any employee or of any conditions that were required to be applied by the employer.
The Summons, ignoring those orders not sought and/or grounds not pursued, seeks the quashing of the Appeal Decision and the remitter of the matter to the Commission to be dealt with in accordance with law. In other words, the orders that are sought are orders in the nature of certiorari.
As a consequence of the nature of the decision made, the question arises as to whether it is a decision from which, or in relation to which, certiorari would issue. There are differences in approach between certiorari against courts and certiorari against tribunals. The alteration in the status of the Commission may affect the kind of decision that might otherwise be the subject of orders.
The High Court [87] expressed the view that decisions that could be the subject of certiorari were decisions that were "final". Mason CJ said:
"[31] The relevant policy considerations are competing. On the one hand, the purposes of the ADJR Act are to allow persons aggrieved by the administrative decision-making processes of government a convenient and effective means of redress and to enhance those processes. On the other hand, in so far as the ambit of the concept of 'decision' is extended, there is a greater risk that the efficient administration of government will be impaired. Although Bowen C.J. and Lockhart J. appeared to emphasize the first of these considerations in Australian National University v. Burns (1982) 64 FLR 166, at p 172; 43 ALR 25, at p 30, there comes a point when the second must prevail, as their Honours implicitly acknowledged. To interpret 'decision' in a way that would involve a departure from the quality of finality would lead to a fragmentation of the processes of administrative decision-making and set at risk the efficiency of the administrative process.
[32] The policy arguments do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations. That answer is that a reviewable 'decision' is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.
[33] Another essential quality of a reviewable decision is that it be a substantive determination. With the exception of s.3(2)(g), the instances of decision mentioned in s.3(2) are all substantive in character. Moreover, the provisions in sub-ss.(1), (2), (3) and (5) of s.3 point to a substantive determination. In this context the reference in s.3(2)(g) to 'doing or refusing to do any other act or thing' (emphasis added) should be read as referring to the exercise or refusal to exercise a substantive power. I do not perceive in s.16(1)(b) or in par.(e) of Sched.1 or par.(a) of Sched.2 to the ADJR Act any contrary implication. These exclusions from the ADJR Act or from s.13 appear to have been introduced for more abundant caution and it would be unwise to take too much from them." [88]
[12]
Conclusion
For the foregoing reasons, the Court has concluded, contrary to the submission of the plaintiff, that orders ought not be made quashing the Appeal Decision. Fundamentally, the Court has come to the view that there has not been a denial of natural justice and, even if there were such a denial, the decision that issued from the Commission was not one which ought to be the subject of orders in the nature of certiorari.
The Court makes the following orders:
1. Judgment for the first defendant on the Summons;
2. Summons dismissed;
3. The plaintiff shall pay the first defendant's costs of and incidental to the proceedings.
[13]
Endnotes
Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary & Anor [2020] NSWIRComm 1001.
Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary and Anor (Destination NSW) [2019] NSWIRComm 1052.
See Appeal Decision at [61].
Appeal Decision at [41]-[42]; [46]; and [50].
Appeal Decision at [59]-[61].
The Award at cl 6(b)(iii).
Appeal Decision at [59].
Appeal Decision at [61].
Appeal Decision at [63].
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 ("Kirk").
Australian Constitution s 51(xx).
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28.
Industrial Relations Act s 9B.
Industrial Relations Act s 9A.
Industrial Relations Act s 5(1).
Industrial Relations Act s 6(1).
Industrial Relations Act s 21.
Industrial Relations Act s 30.
Industrial Relations Act s 130.
Industrial Relations Act s 146.
Industrial Relations Act s 146C.
Industrial Relations Act s 173.
Industrial Relations Act s 175.
Industrial Relations Act s 178B.
The Secretary of the Treasury (Corrective Services NSW) v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2014] NSWCA 446.
Industrial Relations Act, s 175.
Kirk (n 10).
Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88; [1982] HCA 2.
The Colonial Bank of Australasia v Willan (1874) LR 5 PC 417; Kirk, (n 10) at [97].
Marbury v Madison (1803) 5 US 137.
The Australian Constitution, s 75(v); Quick & Garran, The Annotated Constitution of the Australian Commonwealth (1995, Lexis Nexis, Sydney) at 778-779.
[14]
Amendments
03 March 2021 - Typographical error
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 03 March 2021
Parties
Applicant/Plaintiff:
Industrial Relations Secretary
Respondent/Defendant:
Public Service Association and Professional Officers Association Amalgamated Union of New South Wales
bury v Madison (1803) 5 US 137
Metal Trades Employers Association v Amalgamated Engineering Union (1935) 54 CLR 387; [1935] HCA 79
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; [1938] HCA 7
Patsalis v Attorney-General (NSW) (2013) 85 NSWLR 463; [2013] NSWCCA 434
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2
Police Integrity Commission v Shaw (2006) 66 NSWLR 446 at 462; [2006] NSWCA 165
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary & Anor [2020] NSWIRComm 1001
Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary and Anor (Destination NSW) [2019] NSWIRComm 1052
R v Coldham; Ex parte Australian Workers' Union (1983) 153 CLR 415; [1983] HCA 35
R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407; [1944] HCA 42
R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598; [1945] HCA 53
R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 248; [1951] HCA 3
R v Murray; Ex parte Proctor (1949) 77 CLR 387; [1949] HCA 10
Re Australian Railways Union; Ex Parte Public Transport Corporation (1983) 117 ALR 17; [1993] HCA 28
Re Brack; Ex parte Operative Painters and Decorators Union of Australia (1984) 58 ALJR 125; 51 ALR 731
Re Building Workers' Industrial Union; Ex parte Gallagher (1988) 62 ALJR 81; 76 ALR 353; [1988] HCA 4
Re Minister for Immigration; Ex parte S154/2002 (2003) 210 ALR 43; [2004] FCA 1104
Sullivan v Department of Transport (1978) 20 ALR 323; [1978] FCA 48
The Colonial Bank of Australasia v Willan (1874) LR 5 PC 417
The Secretary of the Treasury (Corrective Services NSW) v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2014] NSWCA 446
Texts Cited: Quick & Garran, The Annotated Constitution of the Australian Commonwealth (1995, Lexis Nexis, Sydney) at 778-779.
Category: Principal judgment
Parties: Industrial Relations Secretary (Plaintiff)
Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (First Defendant)
Industrial Relations Commission of New South Wales (Second Defendant)
Representation: Counsel:
T Wong SC / R McEwen (Plaintiff)
M Gibian SC / A Guy (First Defendant)
Submitting Appearance (Second Defendant)
An award, once made, is binding on all employees and employers to which it relates. There are formalities as to the publication of an award and requirements for it to be in writing. There are also mandatory dispute resolution procedures that must be contained in an award.
Once an application has been made for an award, the Commission is required to make an award setting out certain conditions of employment, including ordinary hours of employment; equal remuneration for men and women doing work of equal or comparable value; employment protection provisions; provisions relevant to technological change; sick leave; part-time work; and casual work. [17] Those conditions may be set either by way of a new award or by variation of an existing award.
Further, the maximum hours of work, in an ordinary working week, must not exceed 40 hours per week, averaged over a 12-week period, however other permutations and combinations of that average can be specified in certain restricted conditions.
There is a facility for the making of Enterprise Agreements, which are required to be approved by the Commission. [18] The principles that apply to the approval require the Commission to have regard to the objects of the Act, the public interest, relevant criteria otherwise specified in the Act, and certain other broad principles.
One of the provisions, relevant to the basis upon which these preliminary issues arose before the Commission, which is required in the approval process of enterprise agreements, is that, for the Commission to approve an enterprise agreement lodged, the Commission must be satisfied that, where the agreement covers employees to whom State awards otherwise apply, the agreement does not, on balance, provide a net detriment to the employees, when compared with the aggregate package of conditions of employment under the State awards.
The same is true if the employees are covered by federal awards. As earlier indicated, the Act does not differentiate between different classes of employees, in the sense that, assuming some employees are covered by a State award and others are not, whether the entire agreement, in so far as it covers such employees, must meet the aggregate package levels.
The requirement that the agreement or any industrial instrument, on balance, provide no net detriment to employees covered by an award, either State or Federal, is a major reason that the issue as to the coverage of the Award, as distinct from an arrangement for private contracts, is important in the exercise of the jurisdiction of the Commission.
As earlier indicated, the Commission is given the jurisdiction to resolve industrial disputes, for which purpose an industrial dispute may be notified to the Commission, or the Commission may act on its own initiative. [19] Before arbitrating to resolve an industrial dispute, the Commission must first seek to resolve the dispute by conciliation.
As earlier stated, the Commission may, if arbitration proceedings occur, make or vary an award. The Commission may also provide recommendations, give directions, make disputes orders or any other kind of order authorised under the Act. While the Commission is dealing with an industrial dispute, either by conciliation or arbitration, a party may not bring or continue actions in tort.
Having dealt with those very general powers, it is necessary to refer to the establishment of the Commission itself. Unlike its predecessor, the Commission is not established or described as a court and is required, in performing its functions, to take into account the public interest, including the objects of the Act and the state of the NSW economy. [20]
Further, the Commission is required, when making or varying an award or order, to give effect to policies of the State government on conditions of employment of public sector employers. [21] Those policies are declared by regulation. For the purpose of that provision, the public service includes any body constituted by a NSW statute that is prescribed by the regulations for that purpose.
The Commission determines its own procedure; must act as expeditiously as is practicable; conducts its proceedings publicly unless otherwise necessary; "may require" the presentation of respective cases to be limited; "may require" evidence in writing; and various other obvious procedural issues.
The provisions of s 162A of the Act transferred proceedings for civil penalty and the recovery of money to industrial magistrates and, after its promulgation, no longer allowed the Commission to deal with such issues, as had previously been the case. The Commission is not bound by the rules of evidence; is not bound to act in a formal manner; and is to act according to equity, good conscience and the substantial merits of the case.
Ordinarily, that latter phrase includes a requirement to adhere to the rules of procedural fairness. However, as will become clear from the terms of these reasons for judgment, the rules of procedural fairness are not immutable and depend, largely, on context.
Notwithstanding the exercise of conciliation powers, which are required, at least in certain circumstances, the same member of the Commission may continue to exercise powers of arbitration, unless a party to the arbitration proceedings objects to the exercise of that power. [22]
Importantly, for the purposes of exercising its functions in connection with a matter for which it has jurisdiction, the Commission may determine any question concerning the interpretation, application or operation of any relevant law or instrument. This includes awards and statutes. [23]
Notwithstanding that power, the Commission may, but is not required to do so, refer a question of law arising in proceedings in the Supreme Court. No question of law has been referred by the Commission to the Court.
By operation of s 178A of the Act, the Supreme Court is granted jurisdiction, if it were otherwise not to have it, to hear and determine any question of law so referred. If the Supreme Court is satisfied, either by way of application or of its own motion, that proceedings before the Commission are not within the jurisdiction of the Commission, but are within the jurisdiction of the Court, the Court may order that the proceedings be transferred to the Court and, consequentially, will have jurisdiction to deal with the proceedings. [24]
It is necessary to deal with the express provisions of s 179 of the Act. Prior to the major alterations to which the Court was already referred, the provisions of s 179 of the Act were as follows:
"179 Finality of decisions
(1) Subject to the exercise of a right of appeal to a Full Bench of the Commission conferred by this or any other Act or law, a decision or purported decision of the Commission (however constituted):
(a) is final, and
(b) may not be appealed against, reviewed, quashed or called in question by any court or tribunal (whether on an issue of fact, law, jurisdiction or otherwise).
(2) A judgment or order that, but for this section, might be given or made in order to grant a relief or remedy (whether by order in the nature of prohibition, certiorari or mandamus, by injunction or declaration or otherwise) may not be given or made in relation to a decision or purported decision of the Commission, however constituted.
(3) To avoid doubt, this s extends to any decision or purported decision of the Commission, including an award or order of the Commission."
On 9 December 2005, s 179 was altered to its current form. The current provision is in the following terms:
"179 Finality of decisions
(1) A decision of the Commission (however constituted) is final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal.
(2) Proceedings of the Commission (however constituted) may not be prevented from being brought, prevented from being continued, terminated or called into question by any court or tribunal.
(3) This section extends to proceedings brought in a court or tribunal in respect of a decision or proceedings of the Commission on an issue of fact or law.
(4) This section extends to proceedings brought in a court or tribunal in respect of a purported decision of the Commission on an issue of the jurisdiction of the Commission.
(5) This section extends to proceedings brought in a court or tribunal for any relief or remedy, whether by order in the nature of prohibition, certiorari or mandamus, by injunction or declaration or otherwise.
(6) This section is subject to the exercise of--
(a) a right of appeal to the Full Bench of the Commission conferred by this or any other Act or law, or
(b) a right of appeal to the Supreme Court or the Court of Criminal Appeal conferred by this or any other Act.
(7) In this section -
'decision' includes any award or order."
Ordinarily, the principles of construction would dictate that where the legislature has deliberately amended a provision, it has done so for the purpose of altering its effect. That effect may be altered in a number of ways. It may be altered for the purpose of overcoming a mischief that has arisen; if it be different, it may be altered for the purpose of overcoming an ambiguity; or, it may be intended to have a quite different operation.
Because the PSA has relied significantly on the operation of the privative provision, it is necessary to deal, at greater length than might otherwise be the case, with the operation of s 179 of the Act, as it currently exists and, to an extent more than might be absolutely necessary, the jurisdiction to issue certiorari, or orders in the nature thereof, from this Court.
Returning to the scheme of the Act, the only other provisions to which it is necessary to refer relate to the jurisdiction that, under the current scheme, is exercised by this Court, but was previously exercised by the Commission, at least to the extent that it is relevant to the proceedings now before the Court. For that purpose, it is necessary to deal with Ch 6A of the Act, which deals with the jurisdiction of the Supreme Court in relation to industrial proceedings before it.
The provisions of s 355B of the Act set out a range of matters over which the Supreme Court has jurisdiction and which, previously, fell within the remit of the Commission. None of them are particularly relevant to the current proceedings.
Nevertheless, the provisions of s 355C of the Act grant jurisdiction to the Supreme Court to make "binding declarations of right in relation to a matter in which the Commission … has jurisdiction". A declaration of right is one of the remedies available for judicial review.
It is unclear what the grant of jurisdiction under s 355C of the Act adds to the grant of jurisdiction under s 75 of the Supreme Court Act 1970 (NSW). The Supreme Court Act also grants jurisdiction to the Court to make "binding declarations of right" whether or not any consequential relief is being sought.
Nevertheless, the provisions of s 355C of the Act make clear that binding declarations of right are available in relation to "matters" in which the Commission has jurisdiction. It does not seem, on the face of the provision, that the term "matter" has its constitutional meaning. Given that the Commission deals, now, not with justiciable controversies, it would seem that the provisions of s 355C allow the Supreme Court to make binding declarations of right in relation to the subject matter of that which is or may otherwise be before the Commission.
It is still necessary, under either s 75 of the Supreme Court Act or s 355C of the Act, for the declaration to be "a binding declaration of right". It should be borne in mind, in relation to this area, that a declaration of right is not necessarily a declaration as to the proper interpretation of an award or industrial instrument. [25]
An interpretation of the Award is a matter for which the Commission is granted jurisdiction and, as stated, the Commission may, for that purpose, interpret any award or any relevant law or instrument, including the legislation itself. [26] As a consequence, the Act expressly provides for the Commission to interpret the Award and the relevant legislation, including the regulations.
The history of discussion on certiorari in the High Court is, to say the least, checkered. That is not intended to be a criticism of the High Court, even if I were in a position so to do.
As a consequence of the wording of s 75(v) of the Constitution, the High Court had determined that certiorari would issue from the High Court, in relation to an officer of the Commonwealth, only as an adjunct to prohibition and mandamus. Given my position in the judicial hierarchy, it is pointless to discuss that limitation further, particularly because, given the grant of jurisdiction by legislation, the issue is no longer generally material.
However, it should be pointed out that the terms of s 75(v) of the Constitution were inserted, plainly, to deal with the mischief associated with the judgment of the Supreme Court of the United States in Marbury v Madison. [30]
In Marbury v Madison, the United States Supreme Court determined that Article 3 of the United States Constitution, which is in similar terms to Ch III of the Constitution, granted to the United States Supreme Court the jurisdiction to issue certiorari, but did not grant the jurisdiction to issue mandamus or prohibition. The basis for such a proposition is that mandamus and prohibition were part of the original jurisdiction of the court, while certiorari was part of the appellate jurisdiction. As a consequence of that determination, the Australian Constitution expressly included the original jurisdiction to grant mandamus and prohibition. [31]
The overlooked issue in relation to certiorari as a remedy, otherwise than as an adjunct to mandamus and prohibition, is that each of mandamus and prohibition issue for jurisdictional error in circumstances where there is no act that is other than void. Certiorari will issue for error and operates on decisions that are voidable. [32] In Parisienne Basket, supra, the basis for the foregoing was succinctly stated, in the following way:
"When prohibition is based upon want of jurisdiction it means that the proceedings are coram non judice, that a judgment or order, when given or made, would be void. But certiorari is a proceeding for quashing orders that are voidable only. When nothing was intended in favour of orders of courts of inferior jurisdiction and magistrates and when convictions before them were bad unless they set out on their face the information, the process and the materials upon which they were founded, it was almost inevitable that whatever grounds existed for setting aside an order or conviction would be available upon certiorari. For a conviction was liable to quashing if upon its face a failure in the observance of law appeared. But it is one thing to quash a conviction or order for error on its face and another to hold that the court or magistrate usurped jurisdiction in making it."
Last, prohibition and mandamus would issue notwithstanding that the alleged act or refusal to act had no legal effect. However, certiorari operated on decisions of an administrative kind and/or of an inferior tribunal that were valid until quashed. As a consequence, certiorari would fit within the jurisdiction conferred in the original jurisdiction of the High Court under s 75(iii); and s 73 of the Constitution itself, bearing in mind that certiorari is an exercise of appellate jurisdiction.
While the foregoing may seem like a distraction, it informs the view of the High Court that s 73 of the Constitution prevents a state legislature from denying to a State Supreme Court its character of a superior court of record with inherent jurisdiction. Of course, since federation, at least, no State Supreme Court, and leaving aside the High Court, no court in Australia, has "unlimited jurisdiction". But the High Court took the view that the state legislature could deprive the State Supreme Court of power to grant relief on account of non-jurisdictional error, even though it could not deny the power to grant relief on account of jurisdictional error. [33]
The distinction between jurisdictional and non-jurisdictional error still manifests in Australia. [34] But the rationale of the High Court in Kirk, that the inherent jurisdiction of the superior courts of record went to jurisdictional error but not non-jurisdictional error, with respect, misstates the history.
Historically, certiorari was used for the purpose of a superior court obtaining information, usually from an inferior court but, sometimes from another court of record. The term certiorari derives from the phrase "certiorari volumus", roughly translating as "we wish to be informed". It was often used in proceedings for writ of error and usually commanded an officer to search files and certify that which was part of the files or record.
The writ, albeit differently framed, was also used to remove records so that proceedings could be taken over by the superior court. Ordinarily this occurred in relation to convictions, but other sets of proceedings were also featured. It did not run for purely administrative or ministerial decisions.
Further, the writ could not be used to conduct a new trial, but did deal with whether the order or conviction was ultra vires or vitiated by error of law. It ran against any body created by statute, which acted judicially, whether or not it was a court of common law. [35]
Often the bases for the issue of certiorari were extremely technical grounds, which included some defect in an indictment in criminal proceedings. All of these errors were errors on the face of the record, but included errors of law and errors of jurisdiction
That which altered was the view taken by the superior courts on that which comprised the record and there was a degree of inconsistency in the approach. Thus, even in recent times, prior to the enactment of s 69(4) of the Supreme Court Act, a judgment (or conviction) which commenced with the words, "for the reasons outlined" was taken, most often, but not always, to incorporate into the record the reasons for judgment.
However, when the reasons for judgment were not incorporated in the record, error of law, other than jurisdictional error, would be difficult to identify. This is, with respect, the reason that certiorari issued overwhelmingly for jurisdictional error.
Historically, it cannot be said that, at any stage of its development within the superior courts in England and Wales, certiorari would, as a matter of power and jurisdiction, not issue because the error was confined to an error of law. Having made that proposition, a legal error or error of law that was not operative in the formal sense would not be the subject of certiorari.
Thus, for example, a decision that does not affect the party's legal position would not give rise to certiorari and would not, to this day, give rise to certiorari. It will be necessary to develop that proposition.
The foregoing exposition is not intended as a criticism of any judgment or of the distinction between jurisdictional and non-jurisdictional error and/or the powers of state parliaments. While it may, to some, seem an unnecessary flourish, it is included for the purpose of underpinning the requirement on the Court to understand the current terms of s 179 of the Act, not from my personal view of the powers of State Parliament to legislate in relation to privative provisions, but, rather, from the perspective of a construction that accords with authority.
Whatever be the view that I may have, the High Court has expressly stated that State legislatures have the power to confine the jurisdiction of Supreme Courts to grant certiorari for non-jurisdictional error. [36] While, technically, the comment as to the power of the state legislature to limit the jurisdiction of a Supreme Court to grant orders in the nature of certiorari for non-jurisdictional error was unnecessary, in reaching the determination it did, namely that the State legislatures had no power to deprive a State Supreme Court of the jurisdiction to grant certiorari, or orders in the nature thereof, for jurisdictional error, such a statement is "considered obiter" of the High Court and, as a consequence, binding. [37] While it is a view with which I would differ, the view is not "plainly wrong", if that be an appropriate test in relation to obiter of the High Court.
One of the intriguing aspects of the judgment in Kirk is the determination by the High Court that the error in not applying the rules of evidence was jurisdictional. While it is clear that prior judgments of the High Court have not established a rigid or strict taxonomy of jurisdictional error, it is unusual, to say the least, for the rules of evidence to provide a basis for jurisdictional error. [38]
However, the jurisdiction of the Industrial Court of New South Wales, which was the decision-maker whose decision was subject to the application for certiorari in Kirk, was expressly conditioned on the rules of evidence and other formal procedures of superior courts applying to the Commission, when exercising the jurisdiction from which the decision arose. [39]
Of course, on one view, that which is stated by the High Court in Kirk [40] as to the capacity of the state legislature to limit the jurisdiction of a Supreme Court for non-jurisdictional error, may be doing no more than adopting the approach of the High Court, at a more fundamental level, relating to the proper construction of privative provisions. [41] If the legislature has the power to prescribe the jurisdictional conditions for the exercise of power and to alter the law, in the area which is said to have given rise to an application for judicial review, then to leave to the decision-maker or tribunal the power to determine for itself its satisfaction as to the non-jurisdictional preconditions, or to act upon its own view of the law, may not be an alteration in the nature of a Supreme Court, as identified in s 73 of the Constitution.
In these proceedings, the parties have sought to put submissions on the appropriateness of orders of the kind sought in the Summons and have done so on the basis of that which each party says is the appropriate reach of certiorari and/or declarations. Neither party has sought to deal with the issue at the fundamental level necessary to understand the reach of s 179 of the Act, as it has now been promulgated.
Further, to the extent that a party relies upon the legislative broadening of the record in s 69(4) of the Supreme Court Act to establish error or the appropriateness of certiorari, or the orders in the nature thereof, that legislative extension can be negated or otherwise qualified by other express or specific legislation. [42]
The provisions of s 179 of the Act expressly prohibit a Commission decision from being "appealed against, reviewed, quashed or called into question" by any court or tribunal. Were it not for the use of the term "quashed", the provisions of s 179(1) of the Act might apply and be confined to collateral challenge. However, collateral challenge would not "quash" a decision of the Commission.
The provisions of s 179(2) seem to deal with anti-suit injunctions or orders preventing the Commission from dealing with the matter before it. Interesting questions may arise as to whether a party may be prevented from commencing or terminating such proceedings, but, given that the Commission is provided the jurisdiction, expressly, to deal with most matters on its own application, such an issue may be moot. Subsection 179(3) of the Act clarifies that the limitations said to arise from the provisions in the remainder of s 179 apply to both issues of fact and issues of law. From the wording used in s 179(4) of the Act, the privative provision is said to extend to proceedings brought in a court or tribunal in respect of a purported decision on an issue of jurisdiction.
Lastly, and possibly most importantly, the section is said to extend to proceedings brought in the court for any relief "whether by order in the nature of prohibition, certiorari or mandamus, by injunction or declaration or otherwise" and must, on that basis, refer to proceedings brought in the Supreme Court of New South Wales. It may be that this needs to be construed in light of the Hickman principle.
The Hickman principle is, in effect, an interpretive approach to privative provisions and required any jurisdictional condition to be understood in light of the legislative intention that a failure to satisfy that specified jurisdictional pre-condition was not intended to prevent the decision-maker or tribunal from exercising jurisdiction. The High Court said:
"Both under Commonwealth law, and in jurisdictions where there is a unitary constitution, the interpretation of provisions of the general nature of reg. 17 is well established. They are not interpreted as meaning to set at large the courts or other judicial bodies to whose decision they relate. Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body." [43]
As the High Court, itself, has made clear, such an up interpretive approach to the operation of a privative provision does not allow the relevant decision-maker or tribunal to ignore an express limitation on the jurisdiction to be exercised. [44] Further, the interpretive approach to the operation of a privative provision also allowed the Court to construe the legislation and derive the apparent intention of the parliament. In that way, the Court could deal with requirements that were "imperative or inviolable" differently from those that were technical or procedural. [45]
The Court of Appeal has taken the view, it seems, that, following the judgment in Kirk, there is little or no room for the application of the Hickman principle. [46]
The notion that objective facts give rise to jurisdiction is an inconvenient result and, ordinarily, it is the satisfaction of the tribunal charged with the jurisdiction that is sufficient to determine that jurisdiction exists. [47] Of course, satisfaction of the jurisdictional basis for hearing and determining an issue ordinarily requires that the satisfaction (or lack of it) be a satisfaction that would have been formed by a reasonable person who has correctly understood the meaning of the law under which the person acts. [48]
The Commonwealth legislature sought to take advantage of the "interpretive" approach to privative provisions by enacting a provision that purported to oust judicial review if a decision under the Migration Act 1958 (Cth) possessed certain attributes, plainly derived from comments of Dixon J in Hickman. Those characteristic were that the decision was an administrative decision; was a bona fide attempt to exercise power; related to the subject matter of the legislation; and was reasonably capable of reference to the power granted.
Yet the High Court made clear that the principle stated by Dixon J in Hickman was a statement of the minimal requirements, not a code for the protection of decisions otherwise outside of jurisdiction. Following Hickman, the principle had long been established that an inconsistency between statutory preconditions on the one hand and the privative provision on the other were resolved by reading both provisions together and giving effect to each in a way that allowed a court to deal with an apparent restriction or restraint on jurisdiction by understanding the legislative intention that it is the tribunal that is to determine whether the statutory or jurisdictional precondition exists. [49]
Thus, the three conditions or provisos outlined by Dixon J in Hickman did not provide protection against judicial review. Rather, in the absence of the three provisos outlined in Hickman, no privative provision would be applicable. [50]
The mere fact, if it were the fact, that the state legislature has the power to render procedural fairness inapplicable; or an absence of procedural fairness a matter that does not vitiate the exercise of jurisdiction of the Commission; or to make express provision relating to certain jurisdictional facts or preconditions; does not result in the proposition that the privative provision is to be construed in a way that renders every jurisdictional precondition and the requirement for natural justice merely guidelines. To do so, in the absence of express provisions, would be to read too much into the privative provision and may deprive the statute of the classification as a law, being a rule of conduct or declaration as to power, right or duty. [51]
Indeed, in the context of the Act, the legislature must be taken to have required procedural fairness be implemented. While, as already stated, the legislature has provided that the Commission may determine its own procedure, [52] the legislature has also expressly provided for evidence or argument to be presented in writing, and for the Commission to decide the matters on which it will hear oral evidence and argument. [53] Most importantly, while the Commission is not bound to act in a formal manner, nor bound by the rules of evidence, it is required to act "according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms." [54]
Provisions of that kind, often in identical language, are used, and have been used, for many tribunals in Australia, particularly industrial tribunals. They are often used to describe the tasks of tribunals that are required to alter the rights of parties.
Such terms have been held to apply the rules of natural justice. The expression was described by the Court as presently constituted in its decision in Kostas [55] in the following terms:
"[80] Provisions of similar kind (expressed in some respects in identical language) are familiar to any practitioner before tribunals in Australia and elsewhere. The term 'equity, good conscience and the substantial merits of the case' is used more often than not to describe the tasks of tribunals that are required to alter the rights of parties and those terms apply the rules of natural justice: see Conciliation and Arbitration Act 1904-1983 (Cth) sections 40 and 41, ibid, 1983-1988, sections 110 and 111; Industrial Relations Act 1988 (Cth) sections 110, 111; Workplace Relations Act 1996 (Cth) sections 110, 111; Industrial Relations Act 1996 (NSW) sections 162, 163; Industrial Arbitration Act 1940 (NSW) section 83; Industrial Arbitration Act 1912-1949 (WA) section 69.
[81] The earliest reference to these expressions discovered by the Court was by Henry VIII, later codified in 'an act for the recovering of small debts and for the relieving of poor debtors in London' (3 James I C. 15, section 11), which, in 1606, gave similar procedural functions to the Commissioner who constituted Courts of Request or Court of Conscience under the statute. Its first use in this State seems to have been in 1842 (6 Vict. 15) and it was inserted in both the State (Industrial Arbitration Act 1901 (NSW)) and Federal (Commonwealth Conciliation and Arbitration Act 1904 (Cth)) industrial arbitration statutes when first enacted and into statutes dealing with small debt recovery: see Small Debts Recovery Act 1912 (NSW) section 7 and the article by O. Howard Beale at 10 ALJ 349. Whatever else it may connote, it certainly includes the rules of natural justice and procedural fairness: Barlow v Orde (1870) L.R. 3 P.C. 164 per Westbury LJ; Skinner v Naunihal Singh (1913) 40 Indian Appeals 105 at 114, per Shaw LJ. It has been applied in Australia as that which is right and fair, which has included natural justice at least since 1903: Colliery Employees Federation v Northern Colliery Proprietors Association [1904] 3 A.R. (NSW) 182 at 185; Greater Wollongong City Council v Dunn [1973] 1 NSWLR 36 at 42 (per Hutley JA)."
Further, it is well-established that where a tribunal, such as the Commission, may exercise jurisdiction to affect adversely the rights of a party (or to enforce them), the rules of procedural fairness apply, unless the legislature provides otherwise, either expressly or by words of necessary intendment. [56] General words, such as those contained in this privative provision, would not obviate the necessity for the Commission to abide by and to grant procedural fairness to the parties in proceedings. The abrogation of such a right would require express and clear words to that effect.
For all of the foregoing reasons, it seems that the privative provision, as it currently exists in s 179 of the Act, has effect, on the authority to which the Court has already referred, to exclude certain non-jurisdictional errors. It would seem, subject to the need for express provision, that it also would exclude error that was capable of being excluded by general words. This would not include the rules of natural justice. It would also not include a creative approach to the privative provision, which treated it as if it were an express abrogation of the jurisdictional preconditions or legal preconditions or requirements in the exercise of power.
Nevertheless, the rights that are altered or facilitated are extremely important, if not the most fundamental rights for most persons engaged in economic activity in New South Wales. While any individual may ultimately be affected by dollars or hundreds of dollars in any one week, the overall effect of one award alone is generally to be assessed in the millions of dollars and, often, millions of dollars for each and every week into the indefinite future.
Further, given the requirements on courts or tribunals to deal with a clearly articulated argument; a result that is irrational or illogical, even in the fact-finding area; and unreasonableness and the like, the word "procedural" in the expression "procedural fairness" may not adequately label that which is to be determined. Having made those comments, it is necessary to deal with the decision that is sought to be impugned; the basis of that review; and the discretionary issues raised in relation to the relief sought.
The Appeal Decision then set out the principles to be applied in the appeal and came to the conclusion that the Commissioner's decision did not involve the exercise of discretion and the Appeal Bench was required to determine whether the view the Commissioner reached was correct or not. The question was not, on the principles applied by the Commission on appeal, whether the decision was reasonably open. As a consequence, the Appeal Bench summarised that which was before it in the appeal as concerning "the proper construction of the [Award]".
The Appeal Bench then set out the appellant's submissions in summary form, with particular attention drawn to the submission "that the relevant employees were excluded from the coverage of the Conditions Award by virtue of cl 6(b)". [60] The "Conditions Award" is that which is referred to in these reasons as "the Award".
The Appeal Decision granted leave to appeal. [61] It then summarised the appeal as involving two questions:
"1. Did the Commissioner err in finding that 'another…arrangement applies to [the] group of employees' for the purposes of clause 6(b) of the Conditions Award? (An affirmative answer would determine the appeal.)
2. If not, did the Commissioner err in finding that such an arrangement 'comprehensively determines conditions of employment' so as to invoke cl 6(b)(iii) of the Conditions Award?" [62]
Commencing at [34], the Appeal Decision deals with the meaning of another industrial instrument or arrangement as it appears in cl 6(b) of the Award.
The Appeal Decision then, at [41], takes the view that:
"It does not strain the language of the Conditions Award to extend 'arrangement', or 'industrial arrangement' if that construction is adopted, to include a system by which terms and conditions for employees are established, even if they are contained in individual contracts of employment. Each individual contract is not, as the appellant submitted, the relevant arrangement. Rather, the arrangement is the system under which those contracts are applied."
The Appeal Decision then clarified that the Commission did not accept that an arrangement or industrial arrangement can only be a single, collective agreement. [63]
Commencing at [51], the Appeal Decision deals with which of the "interaction" rules applied to the circumstances before it. The Appeal Decision commented that the Commission received little assistance as to the phrase "comprehensively determines conditions of employment", a phrase that determines which, if any, of the provisions of cl 6(b) apply. It summarised the position of the appellant as being a negative one, namely, that the arrangement could not be comprehensive if it were variable and subject to individual negotiation with each employee.
The Appeal Decision did not accept such a submission. The Appeal Decision then set out the provisions that are contained in each of the Employment Agreements that applied to some of the staff that were sought to be covered by the new award.
The Appeal Decision described those conditions as "quite detailed and of significant scope". [64] The Appeal Decision, in the same passage, described the extent of the conditions of employment set out in the standard employment contract as "comprehensive", or at least that there is a basis for the Commissioner so finding. The Appeal Decision then takes the view that that should not be the end of the analysis in relation to the interaction clause that otherwise would apply.
The Appeal Decision then deals, commencing at [58], with the wording of cl 6(b)(iii) of the Award and concludes that, even though the terms of the individual contracts of employment may be "comprehensive", they do not "comprehensively determine conditions of employment" when viewed in the context of the suite of terms contemplated by the Award.
The Appeal Decision then, correctly, asserts that the effect of cl 6(b)(iii) of the Conditions Award is that it will have no application, if the alternative instrument or arrangement comprehensively determines conditions of employment, whereas, pursuant to cl 6(b)(v) of the Conditions Award, if the alternative arrangement does not "comprehensively determine Conditions of Employment", then the Conditions Award applies to the extent that it is not otherwise inconsistent with the alternative instrument or arrangement. The Appeal Decision takes the view that the alternative arrangement will "only be regarded as comprehensively determining Conditions of Employment if it encompasses substantially the same areas as are dealt with in the Award".
The Commission then considers that it does not "substantially encompass the same areas" and that, therefore, the provisions of cl 6(b)(v) apply and the provisions of cl 6(b)(iii) do not.
The Secretary, in the application before this Court, complains that it was not heard on whether the alternative arrangement, being the individual contracts of employment, comprehensively determines the conditions of employment and the Secretary was, therefore, denied natural justice or procedural fairness.
It should be reiterated, at this point, that the Appeal Decision arose from a preliminary or threshold decision of a single member of the Commission. The effect of the preliminary decision of the Commission, including the appeal, is that the Commission determined that some parts of the Award applied to persons otherwise engaged under individual contracts of employment by Destination NSW. That decision was relevant to the commencement point for existing rates of pay and conditions of employment that would inform the exercise of the discretion of the Commission in determining appropriate rates of pay and conditions of employment in the new award for which the PSA had applied.
In and of itself, the interpretation and/or determination that some conditions of employment were regulated by the Award had no effect on any individual, nor on either of the parties before the Commission. The nature of the exercise of jurisdiction by the Commission and the matters that it was determining, including the jurisdiction conferred on the Commission and its powers, resulted in a situation that, if either party considered that the preliminary decision was wrong or should not inform, either for economic, contextual, legal or any other reason, the discretion of the Commission in the making of a new award, that party could so argue. It could also reargue the issue as to the applicability of the Award and the construction of cl 6.
As earlier stated, the Court takes the view that the Commission is required to afford natural justice. This is imported because of the nature of the functions of the Commission and by its requirement, already mentioned, to act according to "equity, good conscience and the substantial merits of the case". [66] It should, however, be pointed out that no award has been made and no party suggests that whatever determination has been made by the Commission, either at first instance or on appeal, cannot be the subject of further submissions or further application.
The plaintiff asserts that the plaintiff might have taken a number of steps including adducing evidence of the policies and Employee Handbook. The plaintiff asserts that the Employee Handbook is incorporated by reference into the sample contract before the Commission.
No argument has been put before the Court as to how it is said the policies and Employee Handbook are incorporated. Such incorporation is not uncomplicated in the context of individual contracts of employment.
Further, it asserts, in particular by reference to the annexures to the Affidavit of Mr Pearson that it could, somehow, argue by comparison as to what "other instruments or arrangements" were in existence, which, it is said, might bear upon the question of what was comprehensive and engage in its own detailed comparison between the arrangement in place and the Award, drawing the Commission's attention to the coverage of other awards. It is not absolutely clear how this would inform the construction of the clause in question, but the arbitral interpretation of an award, for the purpose of determining what new award or other award ought to be made, is a different beast to the legal construction of an instrument or award. [67]
The plaintiff submits that the Court should not attempt to construe the Award, particularly, because the plaintiff no longer presses grounds 1 to 3 of its Summons. In the alternative, it sets out the principles of construction with respect to awards [68] and submits that the contractual arrangements governing the employees was "another industrial instrument or arrangement" as determined by Commissioner Webster and the appeal decision.
Further, it is submitted that to afford procedural fairness does not require a tribunal to identify all possible legal arguments which may be advanced on a question of interpretation that is otherwise before the tribunal.
In the alternative of the foregoing, the PSA submits that, if the Court is otherwise satisfied that the Appeal Decision is affected by jurisdictional error, then, for reasons associated with the exercise of discretion, no remedy would be granted. The PSA submits that this Court should, in these proceedings, determine whether cl 6(b)(iii) of the Award applies, bearing in mind that the Court has the inherent jurisdiction so to do, and bearing in mind the provisions of s 335C of the Act. The PSA sets out what it says are the appropriate rules and principles of construction in relation to awards. [71]
Over and above the foregoing, the PSA submits, amongst other matters, that the practice of executing individual contracts of employment with employees is not capable of constituting "another industrial instrument or arrangement" and therefore cannot be used for the purposes of determining the application of cl 6(b) of the Award. In so doing, the PSA uses the adjective "industrial" to apply to both the term "instrument" and the term "arrangement" and submits that the term imports a collective arrangement applying to the entire group.
Otherwise, if the Commission were required to determine that which "comprehensively determines a condition of employment", its approach was correct and its interpretation was correct and, for that reason, the Court ought not to issue any remedy, even if there were a denial of procedural fairness.
The PSA points to the provisions of cl 7 of the Award and submits that the Commission is entitled to determine, in its expert opinion, that which would ordinarily be comprehended as part of the usual incidence of employment in an award covering public service employees.
In the context of the issues before the Commission and the terms of cl 6 of the Award, the term "arrangement" was used as an alternative to the term "industrial instrument". The PSA argues that the term "industrial" applies equally to the term "instrument" and the term "arrangement".
The difficulty with such a proposition is the term "industrial instrument" is a defined term in the Act. [73] The term "industrial instrument" is defined to mean an award, an enterprise agreement, a public sector industrial agreement, a former industrial agreement, a contract determination or a contract agreement.
The terms "contract determination" and "contract agreement" do not refer to individual contracts. The Award is an industrial instrument.
As a consequence of the definitions, the term "industrial instrument" refers to instruments all of which are enforceable under the Act and all of which apply collectively. No industrial instrument applies to an individual.
This accords with the general approach to industrial regulation over decades, if not centuries. [74]
The fact that the term "industrial instrument" is a defined term under the Act tends to suggest that the word "industrial" does not also qualify the term "arrangement". Nevertheless, the context in which the term "industrial instrument or arrangement" appears tends to suggest that the arrangement itself will be "collective".
The Award applies collectively to non-executive public service employees. That which must apply for the provisions of cl 6(b) to operate is for "another" industrial instrument or arrangement to apply. The use of the term "another" tends to suggest that it is to be in the same class as the kind of arrangement under which persons operate when they are governed by the Award.
A contract of employment is an arrangement between an employer and an employee, because the term "arrangement" in that context includes a contract. It is a meeting of the minds of each party to the contract.
The Appeal Decision makes clear that the "arrangement" is not each individual contract of employment. Rather, the Appeal Decision takes the view that the "arrangement" is the circumstance that individual contracts of employment will regulate the employees working in Destination NSW. But no meeting of minds is identified. It is not determined that the PSA has agreed to that course. Nor is it said that each employee has agreed that all employees would have their conditions governed by contract to the exclusion of the Award.
There are a number of other difficulties with the "arrangement". First, the fact, if it be a fact, that a contract of employment governs the terms and conditions of employment of a particular worker, or every worker, does not mean that the terms of the Award do not also govern them.
The High Court has been clear that an industrial instrument or award continues to apply by statutory force, notwithstanding the terms of a contract of employment. It is impermissible to contract out of the provisions of an award by an informal arrangement not otherwise contemplated by the Act. The provisions of s 12 of the Act render an award binding on all employees and employers to which it relates, whether or not they were party to the making of the award.
As a consequence, there would be thousands of contracts of employment that apply over and above the provisions of the minimum entitlements under an Award in circumstances where neither the employer nor the employee was party to its making. They are participants in the particular industry and are therefore bound by its terms. The Act, by s 406, provides that the terms and conditions prescribed in an award are the minimum terms and conditions that are binding and applicable to all employees covered thereby.
The relationship between an award and a contract of employment was discussed by the High Court [75] in which the Court clarified the position as to the distinction between statutory and award rights, on the one hand, and contractual provisions on the other. The High Court said:
"[8] However, we do not understand Dixon J to be saying in that passage that 'a term imported by statute into the contract of employment' loses its statutory character and becomes incorporated in the contract as one of its terms. On the contrary, he recognises the distinction between an obligation originating in a statute and an obligation arising from a contract. In his view, the distinction was not of importance in that case, but it is crucial in the present one. No doubt there are terms which are incorporated by statute in contracts of a particular kind so that the ordinary remedies for breach of contract are available in relation to them. And apart from statute, a term may be implied by law as an incident of a particular class of contract, but we do not understand the appellants to be submitting that any such implication arises here. They rely upon the statutory force given to the Award and say that, because the relationship between the parties is contractual, the provisions of the Award - or at least some of them including cl 11(a) in this case - become terms of the contract enforceable by the use of contractual remedies as well as the remedies provided by statute.
[9] A right to the payment of award rates is imported by statute into the employment relationship, which is contractual in origin, and, express promise apart, it is only in that sense that it can be said that award rates are imported into the contract of employment. The Award regulates what would otherwise be governed by the contract. But award rates are imported as a statutory right imposing a statutory obligation to pay them. The importation of the statutory right into the employment relationship does not change the character of the right. As Latham CJ points out in his judgment in Amalgamated Collieries of WA Ltd v True, the legal relations between the parties are in that situation determined in part by the contract and in part by the award. And as the judgment of the Privy Council in that case suggests, a provision in an award may also be made a term of the contract by agreement between the parties, but that is only to emphasise the distinction between an obligation imported by statute and one arising by agreement." [76]
In the joint judgment of McHugh and Gummow JJ, their Honours came to a similar conclusion and expressed the view in the following way:
"[81] However, there is no 'necessity' for such a step in the sense in which that term was applied in cases such as Irwin and Scally. The contract of employment is not, from the viewpoint of the employee, rendered nugatory if the existing provisions thereof remain, as a matter of contract, to operate concurrently with the regime established by the Award and deriving its authority from statute." [77]
The distinction between the contract of employment and the Award provisions is one well known to the law. The contemporaneous application of the requirements of each is trite.
The binding nature of an award, regardless of any contractual provision to the contrary, is the subject of express legislative provision under s 365 of the Act. That provision requires an industrial court, including this Court, to order an employer to pay any amount payable pursuant to the terms of an industrial instrument. There is no allowance for any "overriding" contract of employment or any term of the contract of employment inconsistent therewith. On the contrary, only provisions of contracts of employment that are over and above those prescribed by the industrial instrument are required to be enforced. [78]
Moreover, even where an amount of remuneration is not fixed by an industrial instrument, an industrial court is entitled to order payment that would be payable under a different industrial instrument for the same kind of work in different circumstances. [79]
Returning then to the issue discussed in the Appeal Decision, if each contract of employment is not the arrangement, then, as decided by the Commission, it is the circumstance that contracts of employment will be offered and will regulate the terms and conditions of employment that is said to be the "arrangement".
The difficulty with such a proposition is that there is no "meeting of minds". The circumstance that individual contracts of employment will be offered and will regulate the terms and conditions of employment is a policy decision implemented by the employer and the circumstance does not require, and did not involve, the meeting of any minds with the PSA, or any other industrial organisation or the employees. Individual employees cannot make an application for an award, or its variation or termination. [80] It is difficult to understand, in that context, how they could "arrange" for its non-application on some informal basis.
Moreover, if the arrangement is the circumstance that wages and conditions of employment will be governed by individual contracts of employment, then the "arrangement" would never comprehensively determine the conditions of employment. The "arrangement" would provide the framework or structure whereby the conditions of employment would be determined, comprehensively or otherwise.
Further again, such an "arrangement" may not be "inconsistent with the application of the Award", because the Award will operate and apply at the same time as the arrangement. However, "inconsistent" could be a narrower concept and not involve inapplicability other than in practice. It is unnecessary to deal with this further.
Notwithstanding the view to which the Court has arrived, relating to the proper interpretation of the term "industrial instrument or arrangement" as utilised in cl 6(b), it remains to be determined whether this should be a basis upon which the Court will exercise its discretion not to issue a remedy for a denial of procedural fairness, if there is held to be one.
The determination by the Appeal Decision that the "arrangement" is as they have determined a decision made during the course of its proceedings and for the purpose of informing its exercise of discretion. It is a decision which is open to further argument. It is a decision that is plainly within jurisdiction and which the Commission was capable of making. [81]
If the exercise the Commission is undertaking is one that is clearly within its jurisdiction, why would an error, within its jurisdiction and which it is entitled to make, ground a basis for refusing remedy that otherwise is required to be provided for jurisdictional error? I reject this discretionary argument as to why the Court ought not deal with and grant orders relating to any denial of natural justice.
This is not a situation like the one that applied and was considered by the High Court in MIAH, supra, where the Commission had made findings adverse to the plaintiff and relied upon material that was not before the plaintiff or either party, or upon which it did not have an opportunity to respond. This material was plainly before the Commission and was put before the Commission by the parties.
The parties had available (and tendered) the Award and the sample contracts of employment. The parties invited the Commission to determine whether the provisions of cl 6(b)(v) of the Award applied.
The plaintiff had the opportunity, and more than a reasonable opportunity, to put whatever material they sought on that provision and on that interpretation. They chose not to put material comparing the contracts of employment and their conditions with the conditions in the Award and for the purpose of determining whether the contract of employment that was offered to each individual comprehensively determined the conditions of employment.
The plaintiff had a reasonable opportunity; it did not make best use of it. The Commission is not required to undertake the impossible task of ensuring that the plaintiff puts everything it wishes to put on a point that has otherwise been opened up and upon which it has had a reasonable opportunity to make submissions. [84]
The question from the Appeal Bench to the plaintiff as to the provision they say ought to apply plainly opens up the point of the construction in cl 6(b)(v) and its applicability to the circumstances with which the Commission was required to deal on the appeal. There are similar passages in the primary decision. During the course of the submissions on behalf of the PSA, Counsel for the PSA put the following submission at first instance:
"The exemption is now dealt with in (b), which provides for more detailed interaction rules in circumstances in which another industrial instrument or arrangement applies to a group of employees and it deals with - perhaps there's really three parts to it, within [cl (b)(i) and b(ii)] make provision for circumstances in which there is another industrial instrument or arrangement that expressly displaces either the Conditions Award as a whole in (i) or in its entirety, as the words of the clause say, or in (ii) expressly displaces one or more of the provisions of the Conditions Award, in which case the displacement is partial only, that is only to the extent that there is expressed displacement of a provision.
[Clause 6(b)(iii) and (iv)] deal with the circumstances in which there is another industrial instrument or arrangement which comprehensively determines conditions of employment for a group of employees.
COMMISSIONER: It says 'or arrangement'.
[COUNSEL]: Yes if there is an industrial instrument or arrangement that comprehensively determines conditions of employment for a group of employees, either generally in (iii) or in relation to a particular class of conditions in (iv), then the Award either has no application to the group of employees or no application in relation to that group of employees for that class of conditions that is comprehensively dealt with in another industrial instrument or arrangement. And (v), which, as I understand it, is what's relied upon in this instance, applies if none of the subclauses (i)-(iv) apply and the other industrial instrument or arrangement is silent as the interaction with this award, then the application of the - if the application of the other industrial instrument or arrangement is inconsistent with the application of this award then the other industrial instrument or arrangement applies the extent of any inconsistency, but that otherwise this award applies. So there's a to the extent of inconsistency, provision.
Now, the question that's raised then really turns upon the interpretation of that provision as it presently stands.
COMMISSIONER: … Can I just stop you for one moment?
… COMMISSIONER: [addressing Counsel for the appellant] is that your case, that it's cl 6(b)(v)?
COUNSEL FOR THE PLAINTIFF: Yes."
That which is required in a situation such as this, where the Commission has been expressly invited to interpret the Award and determine which provision of cl 6 applies, is for the position to be opened up sufficiently for a party to be on notice that it was required to deal with how it said cl 6(b)(v) applied and why it and/or cl 6(b)(iii) applied. It chose not to put forward all of the submissions, it now says it could have, notwithstanding the opportunity so to do.
The plaintiff, in this Court, should reasonably have apprehended that the point had been opened up. The Commission was being required to interpret cl 6 of the Award and the plaintiff should have put whatever it wished to put on that issue. [85]
The proposition that the plaintiff has been denied natural justice in that it was denied a reasonable opportunity to prepare and to present its case has not been established. The plaintiff was provided a reasonable opportunity to put whatever it desired to put on the proper interpretation of cl 6 and the proper operation of cl 6(b)(v) of the Award. It is not the Commission's duty to ensure that the plaintiff takes advantage, or best advantage, of the opportunity it had been given.
Further, the effect of the Appeal Decision is to leave until a later time the question whether any conditions prescribed by the Award actually apply to the employees. Further again, and consistent with the foregoing, the Commission may determine, even if there are some provisions in the Award that apply and are not consistent with the arrangement, that those conditions shall not be included in the new award for which the PSA has applied.
More fundamentally, no substantive order issued as a result of the Appeal Decision. If the Appeal Bench has proceeded on the basis of some misapprehension of the facts or the relevant law, not attributable to the fault of the Secretary, then it would have been open to the Secretary to seek to re-open the proceedings. [86] Certiorari cannot be used by a party to provide it another opportunity to present further argument, because, in hindsight, it realises it would have liked to do so.
Not all preliminary decisions are immune from certiorari or judicial review. However, ultimate decisions that require several determinations and various steps may not allow for certiorari on the basis of denial of natural justice at the earliest stages or until final determination has issued. [89] In Edelsten, the Federal Court ruled that natural justice did not apply to the early stages of the process by which the medical practitioner was before the Tribunal for the ultimate determination of whether the medical practitioner had over-serviced patients.
Of course, there can be preliminary decisions which do adversely affect, themselves, the rights of persons. However, the general rule is that preliminary decisions that do not adversely affect the rights of persons (or a party before the tribunal) will not normally attract a duty to observe natural justice and will not normally give rise to a writ for certiorari. However, rights may be affected, even if it is only reputation or legitimate expectation that is at stake.
Fundamentally, the challenged decision must have a legal impact on the individual before the individual may challenge it. [90] In Ainsworth, supra, the High Court was dealing with recommendations about persons about whom it was said there were findings of inappropriate conduct.
Mr Ainsworth was the Managing Director of a company that manufactured poker machines and the adverse findings were made by the Criminal Justice Commission. The High Court determined that, even though the Criminal Justice Commission did not have power to implement its recommendations, because of the adverse nature of the findings made, it was required to provide Mr Ainsworth procedural fairness and the nature of the committee proceedings did not prevent a finding that the rules of procedural fairness had been breached.
In so deciding, the High Court determined that in order to determine whether natural justice was required, one looked at the character of the proceedings and determined whether adverse findings were and/or could have been made and, as a consequence, whether they applied and were breached.
Notwithstanding the finding in Ainsworth, supra, that the rules of procedural fairness applied and were breached, the Court determined that it could not grant either one of the writs mandamus or certiorari, because neither applied to a decision of that kind. The High Court determined that mandamus was inappropriate because the Criminal Justice Commission was not under a duty to investigate and report and therefore was not under a duty which could be enforced by way of mandamus.
More importantly, for present purposes, were the comments of the High Court on the issue of certiorari. The Court, in Ainsworth, said:
"[36] The function of certiorari is to quash the legal effect or the legal consequences of the decision or order under review. The report made and delivered by the Commission has, of itself, no legal effect and carries no legal consequences, whether direct or indirect. It is different when a report or recommendation operates as a precondition or as a bar to a course of action, or as a step in a process capable of altering rights, interests or liabilities. A report or a recommendation of that kind may be quashed, that is to say its legal effect may be nullified by certiorari. But the Commission's report is not in that category. The report may bear upon the appellants' prospects of obtaining licences … and … makes reputation a matter to be taken into account in determining whether a licence should be granted. However, … the report does not 'legally affect ... rights', for it may be that the appellants will be granted such licence or licences … . There being no legal effect or consequence attaching to the report, certiorari does not lie to correct the failure of the Commission to comply with its duty to proceed in a way that was fair to the appellants."
That analysis is even more appropriate to the issues that are now before the Court. The preliminary determination as to which clause of the Award applies did not determine even which conditions applied. It left to another occasion the determination of which conditions prescribed by the Award are consistent or inconsistent with the "arrangement" that the Commission determined existed. In other words, the Commission expressly reserved for another day the determination of which conditions are, or are not, covered by the Award. It may ultimately determine that none are covered by the Award.
More importantly, given the nature of the Commission's jurisdiction and the extremely preliminary nature of this interpretation of the Award, it is still open to either party to reargue all these questions on the basis of different evidence and urge the Commission, however constituted, to arrive at a different result. The decision that is sought to be quashed has no legal effect.
It does not bind any of the employees in Destination NSW. It does not bind the plaintiff in relation to the wages and conditions it is required to observe and it does not bind the PSA.
It has been held on a number of occasions that certiorari has no scope over reports that the ultimate decision-maker is not legally bound to consider.
Further, if the ultimate decision-maker is not required to have regard to the decision as a legal precondition before it takes action that is adverse to the interests of either the plaintiff or the PSA, even if the interim decision will influence the ultimate determination, it is not a matter upon which certiorari will issue. [91]
Thus, in the current circumstances, the preliminary decision relating to which of the provisions of cl 6 applied to the circumstances applicable to Destination NSW, does not affect the Commission's power or jurisdiction ultimately to make an award in whatever terms it is otherwise persuaded to make. As a consequence, certiorari cannot be used against such a preliminary decision. [92]
Further to the foregoing, neither of the parties in this Court is prevented from re-arguing the point before the Commission. Further again, even if neither party chose to re-argue the issue decided by the Commission, or it was decided unfavourably against them again, the Commission has open to it a broad and relatively unfettered discretion as to what conditions to impose in any new award, being the application that has been made to the Commission and upon which the Commission has been embarking. This decision is a minor step in the course of determining the rates of pay and conditions of employment that should apply to Destination NSW.
While in the foregoing comments, the Court has used the term "relatively unfettered", the Commission obviously must abide by the Act; take into account the public interest and all the other requirements associated with the making of an award. However, its discretion as to what conditions to include in an award, subject to mandated provisions in the Act, is a matter solely within its discretion. Even more so, the Commission's discretion in the determination of the content of those conditions and/or the level of wages and other benefits is untrammelled and unaffected by the Appeal Decision.
This Appeal Decision is not one that, on the foregoing view, is amenable to certiorari, or orders is in the nature thereof, under s 69 of the Supreme Court Act.
Lastly, even if the Court were minded to accede otherwise to the application to quash the Appeal Decision, the question would then arise as to any consequential order. The Commission is not under a duty to decide whether the Award applies or the extent to which it applies.
The Appeal Bench would be, if the current decision were quashed, under a duty to determine the appeal by the PSA, but it would be open for it to deny leave or leave to another occasion the final determination, of the preliminary issue raised, and then only if they were to consider it to be a matter that was relevant to the Commission's duty to make an award. They may ultimately be required to decide the issue, if only because it is a clearly articulated argument. But the nature of any "duty" is not clear and has not been the subject of submissions.
Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391-392 (Dixon J); [1938] HCA 7.
Kirk (n 10) at [100].
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58.
Groenvelt v Burwell (1700) 1 Ld Raym 454.
Kirk (n 10) at [100].
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [135].
See the comments of Heydon J in Kirk (n 10) at [114].
Industrial Relations Act 1996-2005 s 163(2).
Kirk (n 10) at [100].
R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598; [1945] HCA 53.
The legislative extension is that found in the Supreme Court Act s 69(4).
Hickman, supra, at CLR 614-615 (Dixon J).
R v Murray; Ex parte Proctor (1949) 77 CLR 387; [1949] HCA 10.
R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 248; [1951] HCA 3.
Director General, New South Wales Department of Health v Industrial Relations Commission of New South Wales (2010) 77 NSWLR 159 at 163; [2010] NSWCA 47 at [14]-[15] (Spigelman CJ, with whom Tobias JA and Handley AJA agreed).
Parisienne Basket, supra, at CLR 391-392 (Dixon J).
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [130]-[137] (Gummow J); R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430 and 432; [1944] HCA 42.
R v Coldham; Ex parte Australian Workers' Union (1983) 153 CLR 415; [1983] HCA 35.
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2 at [64] (per Gaudron, Mchugh, Gummow, Kirby and Hayne JJ, Gleeson CJ agreeing).
Commonwealth v Grunseit (1943) 67 CLR 58 at 82; [1943] HCA 47, cited with approval and explained in Plaintiff S157/2002 (n 50) at [102].
Industrial Relations Act s 162(1).
Industrial Relations Act s 162(2)(d).
Industrial Relations Act s 163(1)(c).
Kostas v HIA Insurance Services Pty Ltd [2007] NSWSC 315.
Annetts v McCann (1990) 170 CLR 596 at 598 (per Mason CJ, Deane and McHugh JJ); [1990] HCA 57.
Sullivan v Department of Transport (1978) 20 ALR 323 at 343 (Deane J); [1978] FCA 48.
Ibid.
Appeal Decision at [5]
Appeal Decision at [15].
Appeal Decision at [31].
Appeal Decision at [33].
Appeal Decision at [42].
Appeal Decision at [57].
Plaintiff's Written Submissions at [17].
Re Australian Railways Union; Ex Parte Public Transport Corporation (1983) 117 ALR 17; [1993] HCA 28.
Re Brack; Ex parte Operative Painters and Decorators Union of Australia (1984) 58 ALJR 125; 51 ALR 731.
Plaintiff's Written Submissions, commencing at [18].
Tcpt, 10 December 2019, p 30(41-50); Court Book 2, p 588.
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1993) 49 FCR 576, at 591; [1994] FCA 293; Re Minister for Immigration and Multicultural Affairs; Ex parte MIAH (2001) 206 CLR 57; [2001] HCA 22 ("MIAH"), at [31]; Re Minister for Immigration; Ex parte S154/2002 (2003) 210 ALR 43; [2004] FCA 1104 at [54]; Habib v Director-General of Security (2009) 175 FCR 411; [2009] FCAFC 48 at [63]-[64].
Defendants Written Submissions commencing at [37].
Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344; [2000] FCA 17 at [75].
Industrial Relations Act, s 8.
Metal Trades Employers Association v Amalgamated Engineering Union (1935) 54 CLR 387 at 403-404; [1935] HCA 79 (Latham CJ); Caledonian Collieries Ltd v Australasian Coal and Shale Employees' Federation (No 2) (1930) 42 CLR 558; [1930] HCA 2; Federated Municipal and Shire Council Employees' Union of Australia v Melbourne Corporation (1919) 26 CLR 508 at 554; [1919] HCA 73.
Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24.
Byrne v Australian Airlines, supra, at [8] and [9] per Brennan CJ, Dawson and Toohey JJ.
Byrne v Australian Airlines, supra, at [81], per McHugh and Gummow JJ.
Industrial Relations Act s 366.
Industrial Relations Act s 367.
Industrial Relations Act s 11(2).
Industrial Relations Act s 175.
Re Minister for Immigration and Multicultural Affairs; Ex parte MIAH (2001) 206 CLR 57; [2001] HCA 22.
MIAH at [31] per Gleeson CJ and Hayne J.
Sullivan v Department of Transport (n 57) at [343] per Deane J.
Re Building Workers' Industrial Union; Ex parte Gallagher (1988) 62 ALJR 81; 76 ALR 353; [1988] HCA 4.
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 303; [1993] HCA 6; DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17 at [34] and following.
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337; [1990] HCA 33.
Australian Broadcasting Tribunal v Bond, supra, at [31]-[33] (Mason CJ).
Edelsten v Health Insurance Commission (1990) 27 FCR 56; [1990] FCA 649.
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44; Police Integrity Commission v Shaw (2006) 66 NSWLR 446 at 462; [2006] NSWCA 165.
Eastman v The Australian Capital Territory (2008) ACTLR 199; [2008] ACTSC 280 at [205]-[206]; Patsalis v Attorney-General (NSW) (2013) 85 NSWLR 463; [2013] NSWCCA 434.