Miller v University of NSW

BACKGROUND 4 The applicant was employed by the respondent from 4 January 1977 until 13 March 1998. From 1 January 1990 Dr Miller had held the position of Associate Professor. His employment was, at the time of the termination of his employment, governed by the University of New South Wales (Academic Staff) Enterprise Agreement 1997-1998 ("the certified agreement"). The applicant's employment by the respondent was terminated on the ground of "serious misconduct". Following his dismissal by the respondent, Dr Miller lodged in the Australian Industrial Relations Commission ("the Commission") an application under s 170CE(1) of the Act for relief in respect of the termination of his employment. Senior Deputy President Harrison dismissed Dr Miller's application. Her Honour found that the dismissal was not harsh, unjust or unreasonable. Dr Miller filed a notice of appeal against the decision of Senior Deputy President Harrison but the Full Bench of the Commission refused him leave to appeal. By matter N 801 of 2000, the applicant seeks to have the decision of the Full Bench of the Australian Industrial Relations Commission quashed and his application for leave to appeal the decision of Senior Deputy President Harrison heard and determined according to law.

PROCEDURAL ISSUES 5 The application for the proceeding to "be set aside" is made in reliance on O 9 r 7 of the Federal Court Rules. O 9 r 7 relevantly provides: "(1) The Court may, on application made by a respondent to any originating process on notice of motion filed within the time fixed by sub-rule (2), by order - (a) set aside the originating process; ….

(2) Notice of a motion under sub-rule (1) may be filed by a respondent before he enters an appearance or within fourteen days after the date of entry of a conditional appearance by him." 6 The respondent filed notice of a motion to set aside the application within fourteen days after the date of entry of its conditional appearance as required by O 9 r 7(2). It was open to the respondent to invite the Court to formulate a question or questions under O 29 r 2 of the Federal Court Rules which would have allowed the Court to determine as a preliminary point, or as preliminary points, the issue of the standing of the applicant to claim the relief sought in the proceeding. Alternatively, it was open to the respondent to move under O 20 r 2 for an order that the proceeding be stayed or dismissed generally, or in relation to any claim for relief in the proceeding, on the ground that no reasonable cause of action is disclosed. However, in F Sharkey & Co Pty Ltd v Fisher (1980) 33 ALR 173 at 175 and F Sharkey & Co Pty Ltd v Fisher (No 2) (1980) 33 ALR 184 at 186, Shepphard J expressed the view that O 9 r 7 was an appropriate way for a respondent to test the question of the Court's jurisdiction under a law of the Commonwealth Parliament, in that case the Trade Practices Act 1974 (Cth). 7 The respondent has moved the Court in the alternative for an order that the proceeding "be stayed or stood out of the list until the proceedings in matter N 801 of 2000 have concluded". Were the issue before the Court that of whether the Court has jurisdiction to give a judgment in personam binding on the respondent, the conduct of the respondent in inviting the Court in its discretion to stay the proceeding temporarily, or stand it out of the list for a limited time, might be considered to involve a submission to the Court's jurisdiction (Henry v Geoprosco International Ltd [1976] QB 726; Bannerton Holdings Pty Ltd v Sydbank Soenderjylland A/S - Federal Court of Australia, 9 February 1996, RD Nicholson J, unreported). However, there is no issue as to the Court's jurisdiction over the respondent. The relevant issue is whether the Court, as a court of limited jurisdiction, has been given jurisdiction by statute to grant the relief claimed in the application. A party is not able to expand the statutory jurisdiction of the Court by submitting to its jurisdiction or by engaging in any other conduct. For this reason, in my view, the seeking by the respondent of relief in the alternative is of no real significance so far as it seeks an order under O 9 r 7. 8 The above discussion discloses that the circumstances of this case did not strictly call for the filing of a conditional appearance by the respondent. It was always open to the respondent to file an unconditional appearance and move under O 20 r 2 for the proceeding to be stayed or dismissed generally, or in relation to any claim, or under O 29 r 2 for the formulation of a preliminary question or questions. However, to use the words of Shepphard J in F Sharkey & Co Pty Ltd v Fisher at 175, it is "of no great consequence" whether the respondent moves under one or the above rules or under O 9 r 7 so long as the respondent's complaint is that the Court lacks jurisdiction to entertain the proceeding. If the complaint is not of this character, or not only of this character, O 20 r 2 or O 29 r 2 provides a more appropriate avenue for relief. The conditional appearance will have effect for all purposes as an unconditional appearance unless the Court otherwise orders or the Court makes an order under O 9 r 7. 9 The respondent contends that the Court has no jurisdiction to hear and determine any of the claims for relief for which the applicant has applied in the proceeding. It is thus necessary to turn to each of the claims for relief made by the application.

"AN EMPLOYEE WHOSE EMPLOYMENT IS SUBJECT TO THE AGREEMENT" 10 The applicant has claimed a declaration as to the proper interpretation of the term "serious misconduct" in clause 14 of the certified agreement. He has also claimed a declaration that the respondent breached a clause of the certified agreement when it summarily dismissed him on 13 March 1998. These claims are made in purported reliance on s 413A of the Workplace Relations Act 1996 (Cth) ("the Act") which provides: "413A(1) The Court may give an interpretation of a certified agreement on application by: (a) the Minister; or (b) an organisation or person bound by the certified agreement; or (c) an employee whose employment is subject to the agreement. 413A(2) The decision of the Court is final and conclusive and is binding on: (a) the organisations and persons bound by the agreement; and (b) the employees whose employment is subject to the agreement; who have been given an opportunity of being heard by the Court." 11 It may be doubted whether s 413A is intended to authorise the Court to make declarations as to the interpretation of a certified agreement or otherwise. By its terms it authorises the Court to give an interpretation of a certified agreement binding only on those persons and organisations identified in subs 413A(2). However, that question need not be pursued on the present application. This issue aside, it may also be doubted whether the applicant's claim for a declaration that the respondent breached a clause of the certified agreement when it summarily dismissed him can be brought within the ambit of s 413A of the Act. For the reasons identified in para 26 below, this issue also need not be pursued on the present application. 12 The respondent contends that the Court does not have jurisdiction to grant the applicant relief pursuant to s 413A of the Act as the applicant is not "an employee whose employment is subject to the agreement" within the meaning of the section. The respondent argues that only an employee whose employment is subject to the relevant certified agreement at the time that the proceeding under s 413A is instituted is "an employee whose employment is subject to the agreement" within the meaning of the section. I accept that this contention raises an issue as to the Court's jurisdiction. As Lee J observed in West Australian Psychiatric Nurses' Association (Union of Workers) v Australian Nursing Federation (1991) 102 ALR 265 at 270 with respect to the jurisdiction defined by the now repealed s 50 of the Act: "The justiciable subject matters within the jurisdiction of this court as defined by s 50 of the Act do not extend to a proceeding initiated by a party to a controversy who has not been empowered by the Act to commence such a proceeding in the court." 13 The applicant has also sought to recover a penalty for a breach of a term of the certified agreement. This claim is made in reliance on subs 178(5A) of the Act. Subsection 178(5A) provides: "A penalty for a breach of a term of a certified agreement may be sued for and recovered by: (a) an inspector; or (b) an employee whose employment is subject to the agreement; or (c) a person or organisation that is bound by the agreement; or (d) an organisation: (i) that has at least one member whose employment is subject to the agreement; and (ii) that is entitled to represent the industrial interests of the member in relation to work carried on by the member that is subject to the agreement; or (e) an officer or employee of an organisation mentioned in paragraph (c) or (d), where the officer or employee is authorised, under the rules of the organisation, to sue on behalf of the organisation." (emphasis added) 14 Again the respondent contends that the applicant is not a person who can sue for and recover a penalty under subs 178(5A) as he was not an employee whose employment was subject to the agreement when he instituted this proceeding. 15 Section 413A and subs 178(5A) were both inserted into the Act by the Workplace Relations and Other Legislation Amendment Act 1996 (Cth). In these circumstances it is not surprising that the respondent contends that the legislature intended that the phrase "an employee whose employment is subject to the agreement" should carry the same meaning in each provision. For this reason argument before me was directed particularly to the contrast in wording between pars 178(5A)(b) and 178(5)(ca). This latter paragraph was inserted into the Act by the Industrial Relations Legislation Amendment Act (No 2) 1990 (Cth). It is appropriate to set out subs 178(5) in its entirety: "178(5) A penalty for a breach of a term of an award or order may be sued for and recovered by: (a) an inspector; (b) a party to the award or order; (c) an employer who is a member of an organisation who is affected by the breach; (ca) a person: (i) whose employment is, or at the time of the breach was, subject to the award; and (ii) who is affected by the breach. (d) an organisation that is affected, or any of whose members are affected, by the breach; or (e) an officer or employee of an organisation that is affected, or any of whose members are affected, by the breach where the officer or employee is authorised, under the rules of the organisation, to sue on behalf of the organisation." (emphasis added) 16 It was contended by the respondent that the failure of the legislature to include in subs 178(5A) any reference to a person whose employment was, at the time of the breach, subject to the agreement demonstrates that an employee was intended by the legislature to be able to sue for and recover a penalty for a breach of a term of a certified agreement only where he or she is "an employee whose employment is subject to the agreement" at the time that the proceeding to recover the penalty is instituted. 17 This contention gains support from the decision of the Commonwealth Industrial Court in Tziortis v ACI Australian Glass Manufacturers Co (1973) 22 FLR 60. In that case a complainant sought to prosecute his former employer for a breach of the Australian Glassworkers Award 1971. Section 119 of the Conciliation and Arbitration Act 1904-1972 authorised "any member of an organisation who is affected by the breach" to sue for and recover the penalty provided for by the section. Spicer CJ and Smithers J (Joske J expressing no opinion) held that s 119 contemplated a person who is a member of the organisation at the time when he or she sues for and recovers the penalty. 18 However, as Mason and Wilson JJ pointed out in Cooper Brookes (Wollongong) Pty Ltd v Federal Commission of Taxation (1981) 147 CLR 297 at 320: "The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction." 19 In my view, the reference in par 178(5A)(b) of the Act to "an employee whose employment is subject to the agreement" is, as a matter of language, open to at least two constructions. First, as the respondent contends, it could be a reference to an employee whose employment is subject to the agreement at the time that he or she institutes the relevant proceeding. Alternatively, it could be a reference to an employee whose employment was subject to the agreement when the cause of action under the subsection arose (ie when the alleged breach of the certified agreement took place). It is thus appropriate to give consideration to the purpose or object underlying the Act and to the statutory context in which the subsection is found. 20 The principal object of the Act is set out in s 3 of the Act. It is "to provide a framework of cooperative workplace relations which promote the economic prosperity and welfare of the people of Australia" by a number of specified means. The means which is perhaps most relevant for present purposes is that specified by par (e) of s 3: "providing a framework of rights and responsibilities for employers and employees, and their organisations, which supports fair and effective agreement-making and ensures that they abide by awards and agreements applying to them …." 21 If the phrase "an employee whose employment is subject to the agreement" is open to more than one construction, a construction of the phrase which would promote the above object is to be preferred to a construction that would not achieve this result (s 15AA of the Acts Interpretation Act 1901 (Cth)). 22 It is of significance that the subject matter and the structure of subs 178(5) and subs 178(5A) respectively are different. Subsection 178(5) of the Act is concerned with the recovery of penalties for breaches of awards or orders of the Commission. Subsection 178(5A) is concerned with the recovery of penalties for breaches of terms of certified agreements. With the exception of an inspector or a party to the award or order, subs 178(5) requires a proceeding for a penalty for a breach of a term of an award or order to be instituted by a person or organisation affected by the breach. By contrast there is no express requirement under subs 178(5A) for a proceeding for a penalty for a breach of the term of a certified agreement to be instituted by a person, employee or organisation affected by the breach. The reason for this may be because certified agreements are intended by the Act to have operation particularly at the level of a single business or part of a single business (s 170L). They must, except in the case of "Greenfields" agreements, be approved by a "valid majority" of those whose employment is, or will be, subject to the agreement (see ss 170LE, 170LJ(2), 170LK(1) and 170LR). A certified agreement may be made directly between an employer and its employees rather than between an employer and an organisation or organisations of employees (s 170LK). That is, employees whose employment is subject to a certified agreement, and persons and organisations bound by a certified agreement, will ordinarily have a direct and immediate interest in compliance with all of the terms of the agreement, and there may be no organisation with a comparable interest. The position is likely to be otherwise in the case of an award or an order of the Commission. 23 The contexts in which subs 178(5) and subs 178(5A) are relevantly to be construed also differ. Division 6 of Part VIB of the Act, which is comprised of ss 170M-170MB, is concerned to identify the persons bound by certified agreements. The Act does not contain comparable provisions in respect of awards and orders of the Commission. Section 170M provides that, if the application for certification states that the application is made under Division 2 (which concerns agreements with constitutional corporations or the Commonwealth), the certified agreement binds the employer and - "all persons whose employment is, at any time when the agreement is in operation, subject to the agreement". (emphasis added) Section 170MA provides that if the application for certification states that the application is made under Division 3 (which concerns agreements about industrial disputes and industrial situations), the agreement binds: "(a) the employer and the one or more organisations of employees concerned; and (b) all members of the one or more organisations of employees concerned." 24 In my view, s 170M provides support for a conclusion that a person whose employment was, at any relevant time when the agreement was in operation, subject to the agreement, is, unless a contrary intention is disclosed by a particular provision, "an employee whose employment is subject to the agreement" within the meaning of the Act. 25 It is also legitimate to have regard to the consequences of the construction of subs 178(5A) for which the respondent contends. Having regard to s 3 of the Act, and in particular par 3(e), it seems unlikely that the legislature intended that an employee whose employment was subject to a certified agreement should be able to sue for and recover a penalty for a breach of a term of that certified agreement if the breach fell short of resulting in the termination of his or her employment, but not if the breach had the more serious consequence of resulting in his or her dismissal. Yet this would be the consequence of the construction for which the respondent contends. It would equally seem unlikely that the legislature intended that an employee whose employment was subject to a certified agreement should be able to sue for and recover a penalty for a breach of a term of that certified agreement where the breach resulted in the dismissal of one or his or her colleagues whose employment had also been subject to that certified agreement, although the colleague could not himself or herself sue for and recover a penalty for the same breach. Yet it is at least arguable that this would be the consequence of the construction for which the respondent contends. 26 The question of the proper construction of the phrase "an employee whose employment is subject to the agreement" in subs 178(5A) of the Act is not easily answered. However, for the above reasons, and notwithstanding the prima facie attraction of the contention advanced by the respondent, I conclude that the applicant is "an employee whose employment is subject to the agreement" within the meaning of the subsection. His employment was subject to the certified agreement at the time that he asserts that the respondent breached a term of the certified agreement by summarily dismissing him. 27 I have experienced even greater difficulty in reaching a view as to the proper construction of the phrase "an employee whose employment is subject to the agreement" in s 413A of the Act. As is mentioned above, the phrase is, in the context of the Act, ambiguous. I have read the explanatory memorandum published in respect of the Workplace Relations and Other Legislation Amendment Bill 1996 but have derived no relevant assistance from it. The legislature may have intended that only employees whose continuing employment is subject to a certified agreement should be entitled to apply to the Court for an interpretation of it, or it might have intended that any person whose employment was subject to a certified agreement at the time that a relevant dispute arose as to the interpretation of the agreement should be entitled to make such an application. I incline to the view that the second is the more likely. However, in the circumstances of this application, there is, in my view, no necessity for me to reach a concluded decision on this issue. In view of the conclusion that I have reached in respect of s 178(5A)(b) of the Act, and having regard to s 39B of the Judiciary Act 1903 (Cth) and ss 21 and 22 of the Federal Court of Australia Act 1976 (Cth), the Court has jurisdiction in this proceeding to make declarations of the kind sought by the applicant in purported reliance on s 413A. The existence of the jurisdiction says nothing, of course, about whether the Court will in its discretion, consider it appropriate to exercise the jurisdiction. 28 The respondent's contention that the Court does not have jurisdiction to hear and determine claims for relief made by the applicant in purported reliance on ss 413A and 178 of the Act because the applicant is not "an employee whose employment is subject to the agreement" within the meaning of the sections must, in my view, fail.

RECOVERY OF SALARY ETC UNDER AGREEMENT 29 The final claim for relief made by the applicant is a claim under s 179 of the Act for the recovery of salary and other pecuniary benefits said to be due to him under the certified agreement. Section 179(1) of the Act provides: "Where an employer is required by an award, order or certified agreement to pay an amount to an employee, the employee may, not later than 6 years after the employer was required to make the payment to the employee under the award, order or agreement, sue for the amount of the payment in the Court or in any court of competent jurisdiction." 30 The applicant has accepted that he was summarily dismissed by the respondent on 13 March 1998. He has by the application sought a declaration that the respondent breached the certified agreement by so dismissing him. He applied to the Commission under s 170CE of the Act seeking a determination that his dismissal was harsh, unjust or unreasonable and an order that he be reinstated in his employment with the respondent. It is a condition of the jurisdiction of the Commission under s 170CE of the Act that the employee making the application should have been dismissed from his or her employment (see R v Industrial Court (SA); ex parte General Motors-Holdens Pty Ltd (1975) 10 SASR 582). Once it is accepted that the applicant was dismissed from his employment by the applicant with effect from 13 March 1998, it becomes apparent that the respondent was not required by the agreement to make payments of salary and other payments to the applicant after that date. The applicant's employment under the certified agreement ceased on 13 March 1998. 31 It is not, in my view, clear that the Court lacks jurisdiction to entertain the applicant's claim for relief under s 179 of that Act. It was not argued that the applicant is not an "employee" within the meaning of s 179 of the Act as he had been dismissed from his employment at the time that he initiated this proceeding. However, it is in my view clear that his claim under the section must fail. As the Court heard full argument as to the sustainability of this claim for relief, it is appropriate for it to be dismissed under O 20 r 2 as disclosing no reasonable cause of action.

TEMPORARY STAY 32 I turn to consider the respondent's alternative claim for an order that the proceeding be stayed or stood out of the list until the applicant's claim for prerogative relief has been heard and determined. 33 Now that the caseload of the Court is managed though a "docket" system in which matters are allocated to a particular judge for pre-trial management and, if necessary, hearing, it will be an uncommon case, in my view, in which it will be necessary for a formal order to be made temporarily staying a proceeding or standing a proceeding out of the list. The powers of the docket judge to direct and control pre-trial procedures will normally be sufficient to achieve the result which would in the past have been achieved by a temporary stay or an order standing a proceeding out of the list. 34 The issue for my determination on this aspect of the respondent's application is, in a practical sense, whether further pre-trial steps in this proceeding should await the hearing and determination by the Full Court of the prerogative writ proceeding. In considering this issue, it is of significance that the prerogative writ proceeding is expected to be heard in the November 2000 Full Court sittings. Even if the pre-trial steps in this proceeding were to be taken promptly, I would not be in a position to list this matter for hearing until March, or possibly June, of 2001. 35 In the prerogative writ proceeding, Dr Miller relies, amongst other grounds, on the ground that - "In finding that it was reasonably open and appropriate for the Honourable Senior Deputy President to find that the definitions of serious misconduct in the Universities and Post Compulsory Academic Conditions Award 1995 … were not imported into the University of New South Wales (Academic Staff) Enterprise Agreement 1997-1998, … the first respondents [ie the Full Bench of the AIRC] fell into error of law, and the exercise of their jurisdiction and power were affected, because the first respondents ignored or declined to consider the relevant material." 36 It seems possible, having regard to the above ground, that the Full Court in hearing and determining the prerogative writ proceeding will give consideration to the proper construction of the certified agreement, and in particular to whether the definition of serious misconduct in the Universities and Post Compulsory Academic Conditions Award 1995 was imported into the certified agreement. That issue is at the heart of the present proceeding. 37 In my view, it is desirable that the parties have the benefit of any views expressed by the Full Court as to the proper construction of the certified agreement in this, and possibly other, regards before they are required to prepare further for the hearing of the present proceeding. Moreover, if the applicant obtains the relief which he seeks in the prerogative writ proceeding, that relief could lead to a rehearing in the Commission which might have consequences which could affect the relief sought by him in this proceeding. 38 Nothing that I have said need restrict Dr Miller in any way in preparing his own case in this proceeding in the way and in the time frame that he chooses. However, I indicate that it is not my present intention to make directions for the preparation of this matter for hearing. 39 I do not consider it necessary to make an order staying the proceeding or standing it out of the list. The proceeding will remain in my docket under my management. Each party will be given liberty to apply on three days written notice to the other. That liberty may be exercised should there be a material change in the circumstances I have considered today. Subject to any steps taken by the parties pursuant to the liberty to apply, I shall request my Associate to list this matter for a directions hearing promptly following the publication of the reasons for judgment of the Full Court in the prerogative writ proceeding. In the meantime I direct that until further order of the Court no further formal step is to be taken in this proceeding without the leave of the Court. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Dated: 3 November 2000 The applicant appeared in person