Inquiry into matters relating to the availability of work at Tristar Steering and Suspension Australia Ltd, Re [2007] NSWIRComm 50

Inquiry into matters relating to the availability of work at Tristar Steering and Suspension Australia Ltd, Re [2007] NSWIRComm 50 - NSWIRComm 2007 case summary — Zoe

CATCHWORDS: Ministerial Reference - Reference by Minister for Industrial Relations pursuant to s 146(1)(d) of the Industrial Relations Act 1996 in relation to the availability of work at Tristar Steering and Suspension Australia Ltd - Whether the Industrial Relations Commission of NSW Commission has jurisdiction to conduct the Inquiry as a result of s 16(1) of the Workplace Relations Act 1996 (Cth) - Alternatively, whether the Inquiry should be adjourned until the determination of proceedings against Tristar recently commenced in the Federal Court of Australia by the Office of Workplace Services - Whether there was a requirement for notices to be given to the Attorneys-General of the Commonwealth and the States pursuant to s 78B of the Judiciary Act 1903 (Cth) before the Commission could proceed to hear the jurisdictional application - Whether the Commission had power to determine the jurisdictional application - Operational inconsistency - Cover the field - Meaning of the word "apply" - Meaning of the phrase "in relation to" - Whether Tristar a trading corporation - Implied limitation on Commonwealth legislative power which prohibits laws of general application that operate to destroy or curtail the continued existence of the States or their capacity to function as governments - Whether those parts of the Terms of Reference which were within power could be severed from those parts which were beyond power by reason of s 16(1) of the Workplace Relations Act - Whether the Commission could issue a certificate under Section 128 of Evidence Act 1995 (NSW) - Whether Inquiry would result in any form of judicial determination - Whether any report ultimately issued would create or affect legal rights or obligations and therefore have legal consequences for Tristar - Whether there was evidence to suggest that any proceedings against managerial employees (whether criminal or civil) are contemplated or likely - Availability of common law privilege against self-incrimination - Tristar's jurisdictional and stay applications refused

[6]

Ainsworth and Another v Criminal Justice Commission (1992) 175 CLR 564 Attorney General v 2UE Sydney Pty Ltd & Ors [2006] NSWCA 349 Australian Competition and Consumer Commission v FFE Building Services Ltd and Others (2003) 130 FCR 37 Cameron's Unit Services Pty Ltd v Whelpton & Associates Pty Ltd and Another (1984) 59 ALR 754 Clough v Leahy (1905) 2 CLR 139 Environmental Protection Authority v Caltex Refining Co Pty Limited (1993) 178 CLR 477 Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397 Fencott and Others v Muller and Another (1983) 152 CLR 570 Fountain and Another v Alexander and Another (1982) 150 CLR 615 Fox v GIO Australia Ltd (2002) 56 NSWLR 512 General Steel Industries Inc. v Commissioner for Railways (NSW) and Others (1964) 112 CLR 125 Greiner v Independent Commission Against Corruption, Moore v Independent Commission Against Corruption (1992) 28 NSWLR 125 Griffin David James v Sogelease Australia Limited & Ors [2002] NSWCA 421 Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26 Huddart Parker & Co Proprietary Limited v Moorehead, Appleton v Moorehead (1909) 8 CLR 330 Joye v Beach Petroleum NL and Another (1996) 67 FCR 275 Majik Markets Pty Ltd v Brake and Service Centre Drummoyne Pty Ltd (1991) 28 NSWLR 443 McGuiness v The Attorney-General of Victoria (1940) 63 CLR 73 Murphy v R (1985) 158 CLR 596 CASES CITED: Nagle (T/as W D and J L Nagle & Sons) v Tilburg & Anor (1993) 51 IR 8 New South Wales and Others v Commonwealth (2006) 231 ALR 1 O'Grady v The Northern Queensland Company Ltd (1990) 169 CLR 356 Pidoto and Others v The State of Victoria (1943) 68 CLR 87 Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355 Pyneboard Proprietary Limited and Others v Trade Practices Commission and Another (1983) 152 CLR 328 Re Adams and the Tax Agents Board (1976) 12 ALR 239 Re Australian Education Union and Others; Ex parte The State of Victoria and Another (1995) 184 CLR 188 Re Dingjan and Others; Ex Parte Wagner and Another (1995) 183 CLR 323 Re Pacific Coal Pty Limited; Ex parte Construction, Forestry, Mining and Energy Union and Another v The Commonwealth of Australia (2000) 203 CLR 346 Rocks and Another v The Uniting Church in Australia and Others (2002) 117 IR 451 Shop, Distributive and Allied Employees' Association, New South Wales v Librus Pty Ltd t/a Dymocks Parramatta (2001) 103 IR 390 Skilltech Consulting Services Pty Ltd and The Australian Workers' Union, New South Wales [2007] NSWIRComm 6 The Lord Mayor Councillors and Citizens of the City of Melbourne v The Commonwealth and Another (1947) 74 CLR 31 The Lord Mayor Councillors and Citizens of the City of Melbourne v The Commonwealth and Another (1947) 74 CLR 31 The State of New South Wales and Others v The Commonwealth - The Incorporation Case (1990) 169 CLR 482 The State of Victoria and Others v Australian Building Construction Employees' and Builders Labourers' Federation and Others (1982) 152 CLR 25 The State of Victoria v The Commonwealth (1970) 122 CLR 353 Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96 Unions NSW v Carter Holt Harvey Wood Products Australia Pty Limited and Others (2006) 149 IR 361 Virtue v New South Wales Department of Education and Training (1999) 92 IR 428

[27]

(ii) Did the Commission have power to determine the jurisdictional application? 10 As to the first of these questions, Tristar submitted that there was no requirement for notices to be issued under s 78B of the Judiciary Act. No other party contended otherwise. 11 We accept Tristar's submission in this respect. Section 78B of the Judiciary Act provides: Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court. 12 It is apparent that s 78B only has application with respect to a "federal court" or a "court of a State or Territory". The Commission as currently constituted is not a court, and accordingly no notice is required under s 78B: Unions NSW v Carter Holt Harvey Wood Products Australia Pty Limited and Others (2006) 149 IR 361 at [8]-[9]. In any event, the evidence established that Tristar did, on or about 26 February 2007, send written notice of the proceedings to each of the Commonwealth and State Attorneys-General. Copies of the notices are annexed to the affidavit of Mr Berry. None of the Attorneys-General so notified sought to appear in the proceedings. 13 In relation to the second question, Tristar submitted, notwithstanding that its jurisdictional application involved the resolution of a constitutional question, that the Commission had jurisdiction to determine such a question about the limits of its own authority provided that its decision would not be final and binding. No party made any contrary submission. 14 We accept Tristar's submission in this respect. Section 30 of the Judiciary Act provides that all matters arising under the Constitution or involving its interpretation are within the original jurisdiction of the High Court of Australia. Section 39(2) of the Judiciary Act provides that the "several Courts of the States" are invested with federal jurisdiction in all matters in which the High Court has original jurisdiction, subject to identified conditions and restrictions which are not presently relevant. The earlier stated conclusion that the Commission as currently constituted is not a court has the consequence that s 39(2) does not confer upon it federal jurisdiction to determine constitutional questions. 15 However, that is not to say that the Commission is not competent to consider and reach an opinion about a constitutional question relevant to its own jurisdiction. This question of the power of administrative tribunals to consider questions going to their jurisdiction was considered by Brennan J (as he then was), sitting as President of the Administrative Appeals Tribunal, in Re Adams and the Tax Agents Board (1976) 12 ALR 239. At 240, his Honour said: An administrative body with limited authority is bound, of course, to observe those limits. Although it cannot judicially pronounce upon the limits, its duty not to exceed the authority conferred by law upon it implies a competence to consider the legal limits of that authority, in order that it may appropriately mould its conduct. In discharging its duty, the administrative body will, as part of its function, form an opinion as to the limits of its own authority. The function of forming such an opinion for the purpose of moulding its conduct is not denied to it merely because the opinion produces no legal effect.

[28]

16 A similar approach was taken by a Full Bench of this Commission in Shop, Distributive and Allied Employees' Association, New South Wales v Librus Pty Ltd t/a Dymocks Parramatta (2001) 103 IR 390 at [13]. The Commission held that not only did it have the power to determine issues of jurisdiction, it had a duty to do so where either a challenge to jurisdiction was made or it appeared on the face of the record that a jurisdictional issue arose. 17 In Re Adams, Brennan J went on to say in relation to jurisdictional questions involving the constitutional validity of legislation (at 245): In Australia there is a reluctance on the part of administrative bodies to pass upon the constitutional validity of statutes: see Case D47 (72 A.T.C. 272), a decision of No. 2 Tax Board of Review. If it be allowed that there is, in Australian legal theory, a competence in an administrative body to consider and form an opinion upon the constitutional validity of a statute in order that that body may act in accordance with law, the competence to form the opinion and to be informed on the question of constitutional invalidity should not be treated as a jurisdiction invested in the administrative body to reach a conclusion having legal effect. It is merely a means which the administrative body may adopt in moulding its conduct to accord with the law. 18 The above passage was taken by Spigelman CJ in Attorney-General v 2UE Sydney Pty Ltd [2006] NSWCA 349 at [35] and [37] to mean that it is permissible for an administrative body to consider a challenge to the constitutional validity of legislation, albeit that it would do so only reluctantly. His Honour concluded at [80]: A State tribunal may, in my opinion, consider the Constitutional validity of State legislation in the course of the exercise of its statutory powers. However, no State tribunal can exercise the judicial power of the Commonwealth. 19 Spigelman CJ concluded at [29] that for an administrative tribunal to engage in a function of legal interpretation in the course of exercising its jurisdiction, it was not necessary for there to be an express statutory provision conferring such a function (although in respect of the tribunals then under consideration, namely the Administrative Decisions Tribunal and the Appeal Panel, such a provision did exist in s 115(1)(b) of the Administrative Decisions Tribunal Act 1997). Hodgson JA concluded (at [98]-[100]) that that provision, which required regard to be had to section 31 of the Interpretation Act 1987, had the effect of requiring the tribunals to consider any constitutional limits on the legislative power of the New South Wales Parliament in construing legislation. Ipp JA agreed with both Spigelman CJ and Hodgson JA. 20 An analogous provision is contained in the IR Act. Section 175 of the IR Act provides: The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument). 21 We would regard the words "any question concerning the interpretation, application or operation of any relevant law" as providing express authority for the Commission in a proceeding (including an inquiry pursuant to s 146(1)(d)) to consider and determine a question going to the constitutional validity of a statutory provision conferring jurisdiction upon the Commission. However, s 175 could not validly confer upon the Commission the judicial power of the Commonwealth with respect to constitutional questions. Accordingly, any determination made by the Commission under s 175 with respect to a constitutional question will constitute an expression of opinion by the Commission as to the limits of its own authority in the context of the present Inquiry, rather than a final and binding judicial decision. 22 We propose to consider and determine the jurisdictional application in accordance with the above-stated principles.

[33]

30 The characterisation of a person as an "employee" within the meaning of s 5(1) essentially depends upon the person being employed by an "employer" within the meaning of s 6(1). Tristar accepted that, for s 16(1) to operate here, it was required to demonstrate that it was an "employer", as defined. It contended that it is such an "employer", because it is a "constitutional corporation", being a "trading corporation" within s 51(xx) of the Constitution. That issue was in contest, and evidence going to it was tendered by the parties. However, for the immediate purpose of our consideration of the construction of s 16(1), we shall proceed upon the assumption that Tristar is a trading corporation such as to bring it within the definition of "employer" in s 6(1). 31 In considering whether s 16(1) of the WR operates to cause invalidity with respect to s 146(1)(d) of the IR Act as enlivened by the Terms of Reference, it is necessary to identify the proper construction to be placed upon s 16(1). The parties before us made differing submissions as to that question of construction. Tristar's submissions, as indicated earlier, focussed upon what it submitted was the wide import of the phrase "in relation to" as used in s 16(1). However, the Minister submitted that the use of the word "apply" in conjunction with the phrase "in relation to" had the result that a State law would need to have direct legal application to a relevant employee or employer in order that it be excluded. 32 In construing the terms of s 16(1), regard must be had to the language, context, general purpose and policy of the WR Act viewed as a whole: see Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]; Fox v GIO Australia Ltd (2002) 56 NSWLR 512 at [42]-[47]. It is also permissible to have regard to extrinsic material, including the explanatory memorandum and second reading speech relating to the bill, in the circumstances prescribed in s 15AB of the Acts Interpretation Act 1901 (Cth). Further, we can derive assistance in the task of construing s 16(1) from the High Court's decision in New South Wales and Others v Commonwealth (2006) 231 ALR 1, because the High Court majority found it necessary to construe s 16 in order to determine the challenge made to its constitutional validity. 33 The evident purpose of s 16(1) is to establish a legislative field in which the WR Act is to operate to the exclusion of any State or Territory law which, subject to the exceptions in ss 16(2) and (3), intrudes upon that field. Thus, the construction of s 16(1) will necessarily be guided by the identification of the field which it was intended that the WR Act should cover. The identification of the field is aided by an examination of the objects and the operative provisions of the WR Act. 34 The principal object of the WR Act is (relevantly) stated in s 3 as follows: The principal object of this Act is to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia by:

[58]

Dawson J reached a similar conclusion (at 367). 40 The general context of the WR Act which we have earlier described - namely an intended exclusive field of operation concerning prescription of the rights and obligations of employees and employers (as defined) and the regulation of their workplace relations - would suggest that an approach which requires a direct legal effect upon employees and employers rather than merely an indirect connection to them would be preferred. 41 Moreover, Tristar's submission as to the breadth of the phrase "in relation to" does not pay sufficient attention, in our view, to the use of the word "apply" in s 16(1). Indeed, the question of what it means for a State law to "apply" in relation to something appears to us to be the critical issue. The ordinary meaning of "apply" was recently considered by a Full Bench of this Commission in Skilltech Consulting Services Pty Ltd and The Australian Workers' Union, New South Wales [2007] NSWIRComm 6. In that matter, a question arose as to whether, in relation to a particular group of employees, a State award which had common rule application to the work performed by those employees "applied" to them in circumstances where they had been engaged pursuant to Australian Workplace Agreements which had effect under the WR Act. The Full Bench said (at [32]-[33]): 32 The Oxford English Dictionary (2nd Ed) contains the following relevant definitions of the verb "to apply", both of which emphasise that the contact between the subject and object is practical, rather than theoretical or suspended in some way: 1. To put a thing into practical contact with another. ... 8. To bring (a law, rule, test, principle, etc.) into contact with facts, to bring to bear practically, to put into practical operation. (Cf. to apply a foot-rule to a wall, a test to a mineral, a principle to actions.). 33 This interpretation of the verb "to apply" in a legislative context was adopted by the majority of the Supreme Court of Canada in Parry Sound (District) Social Services Administration Board v O.P.S.E.U., Local 324 [2003] 2 SCR 157 at 182-183 and is supported by IRC v Clifforia Investments [1963] 1 All ER 159 (in that the High Court held that "applies" is a use of the historic present and means applies or applied at the relevant time) and the decision of the Court of Appeal in British Transport Commission v London County Council [1953] 1 QB 736.

[65]

48 In construing s 16(1) of the WR Act, it is also necessary to take into account questions concerning its constitutional validity. This is so because s 15A of the Acts Interpretation Act (Cth) provides that "Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth ... ". As Tristar has submitted, s 16(1) was determined in New South Wales v Commonwealth to be a valid law, on the basis that it was, relevantly, a law with respect to corporations under s 51(xx) of the Constitution: see [362]-[363]. However, that conclusion must be understood in the context of the High Court's characterisation of the scope of the corporations power. In the majority judgment at [177]-[178], Gaudron J's formulation of the scope of the corporations power in Re Dingjan and Others; Ex Parte Wagner and Another (1995) 183 CLR 323 at 364-5 and Re Pacific Coal Pty Limited; Ex parte Construction, Forestry, Mining and Energy Union and Another v The Commonwealth of Australia (2000) 203 CLR 346 at [83] was expressly approved. In the latter decision, Gaudron J characterised the scope of the corporations power in the area of workplace relations as extending to: ...laws prescribing the industrial rights and obligations of corporations and their employees and the means by which they are to conduct their industrial relations. 49 Thus, in Re Pacific Coal, Gaudron J determined (at [84]) that a law was not constitutionally supported by s 51(xx) of the Constitution because it did not operate to prescribe the industrial rights and obligations of corporations and their employees or to regulate the means by which they are to conduct their industrial relations. 50 The construction of s 16(1) for which the Minister contends satisfies the requirements of s 15A of the Acts Interpretation Act, in that it ensures that s 16(1) does not exceed the legislative power contained in s 51(xx) of the Constitution (as that power has now been characterised by the High Court). By contrast, Tristar proffers a construction of s 16(1) which has it applying to exclude a law such as s 146(1)(d) of the IR Act, which neither prescribes the industrial rights and obligations of corporations and their employees nor the means by which they are to conduct their industrial relations. Such a construction would, at the least, endanger the constitutional validity of s 16(1). The adoption of such a construction would be contrary to s 15A of the Acts Interpretation Act when there is an alternate construction available which would ensure validity. 51 For the above reasons, we prefer the construction of s 16(1) of the WR Act advanced by the Minister.

At a glance

Court

Decision date

Before

Source

Judgment (107 paragraphs)

Legislation Cited (10)

Cases Cited (40)