Supreme Court of Tasmania|2009-04-22|Before: Porter J

Minister Administering the State Service Act v Leary and Others [2009] TASSC 24 (22 April 2009)

CITATION: Minister Administering the State Service Act v Leary and Others [2009] TASSC 24

PARTIES: THE HONOURABLE DAVID BARTLETT, MINISTER ADMINISTERING THE STATE SERVICE ACT 2000

Industrial Law - Tasmania - Industrial Commission - Appeals to Full Bench - Other matters - Challenge to "a decision of the Full Bench in respect of an appeal" by way of application to Supreme Court for order nisi - Preliminary ruling by Full Bench as to the competency of an appeal - Whether ruling a decision with respect to an appeal - Meaning of "decision with respect to an appeal" - Order nisi available.

Commissioner of Corrective Services v Walker [2007] NSWCA 213, applied.

Director-General of Social Services v Chaney [1980] FCA 87; (1980) 47 FLR 80, distinguished.

Industrial Law - Tasmania - Industrial Commission - Appeals to Full Bench - Hearings in respect of industrial disputes relating to termination of employment - Commissioner may order that things be done or action be taken for the purpose of preventing or settling an industrial dispute - Appeal to Full Bench from orders made under that provision - Hearing of dispute as to unfair dismissal - Findings that valid reasons for termination and that dismissal not unfair - Commissioner "dismissed application" - Appeal to Full Bench incompetent.

**First, Second and Third Respondents (**Submitted to the Court's jurisdiction)

First, Second and Third Respondents: Crown Solicitor

Judgment Number: [2009] TASSC 24

THE HONOURABLE DAVID BARTLETT, MINISTER ADMINISTERING

THE STATE SERVICE ACT 2000 v P L LEARY, P C SHELLEY,

T J ABEY AS COMMISSIONERS OF THE TASMANIAN INDUSTRIAL COMMISSION and DR STEPHEN BENNETT

1 This is the return of an order nisi made pursuant to the Industrial Relations Act 1984 ("the Act"), s72(2). The order calls on the Commissioners who constituted a Full Bench of the Tasmanian Industrial Commission, to show cause why the decision made by that Bench on 17 December 2008, that an appeal made to it by Dr Stephen Bennett was competent, should not be quashed. The Commissioners have submitted to the Court's jurisdiction. Dr Bennett was served with the order, but did not formally appear at the hearing.

2 The course of events leading to the appeal commenced with an application by Dr Bennett pursuant to the Act, s29(1A), for a hearing in respect of an industrial dispute relating to the termination of his employment on 19 March 2006. Dr Bennett had been employed by a State-operated general medical practice.

3 A Commissioner conducted a hearing in respect of the dispute which occupied several days. The decision was reserved. Lengthy reasons for decision were later delivered, the Commissioner concluding that "... the applicant failed to prove the termination to be unfair, as is required by s30(6) of the Act. As a consequence, the applicant was not unfairly dismissed, and I so find". The reasons end with the following paragraph, "The application is dismissed, and I so Order" [sic].

4 Dr Bennett then appealed to a Full Bench of the Commission. Section 70(1)(b) enables an appeal to be made to the Full Bench by the party who applied for the hearing, against "an order made by a Commissioner under section 31(1) after a hearing relating to an industrial dispute in respect of the mode, terms or conditions of employment or any termination of employment, including termination resulting from redundancy, or long service leave, or breach of an award or a registered agreement".

5 The Minister, as the respondent to the appeal, sought and was granted a preliminary hearing before the Full Bench as to the competency of the appeal; the point being whether the Act, s70(1)(b), enabled an appeal against an order of dismissal following a hearing in respect of an industrial dispute relating to the termination of employment. That is, whether such an order of dismissal was an order within the meaning of s70(1)(b); that in turn raising the question of whether, in effect, it was an order "made under" s31(1) after a hearing of the type referred to in s70(1)(b). The relevant provisions are as follows:

"70 Rights of appeal

(1) An appeal may be made to the Full Bench against -

(b) an order made by a Commissioner under section 31(1) after a hearing relating to an industrial dispute in respect of the mode, terms or conditions of employment or any termination of employment, including termination resulting from redundancy, or long service leave, or breach of an award or a registered agreement by -

6 On 17 December 2008, the Full Bench ruled that the order of the Commissioner was one made pursuant to s31(1) and was therefore capable of being appealed. It is that ruling which is the subject of the order nisi. The Act, s72(2), provides that a person who wishes to challenge a decision of a Full Bench in respect of an appeal may apply for an order nisi calling on the Full Bench to show cause why the decision should not be quashed in whole or in part.

7 There are two issues which I have to decide. The first relates to the question of whether the relief sought is available to the applicant. The second relates to the merits of the order nisi. The issues are:

•

whether the decision of the Full Bench is "a decision of the Full Bench in respect of an appeal", within the meaning of s72(2);

•

whether the order of the Commissioner "dismissing the application" was an order of the type referred to in the Act, s70(1)(b).

Is the decision of the Full Bench subject to challenge under the Act, s72(2)?

"72 Provisions relating to finality of decisions of Full Bench

(1) Where a Full Bench makes a decision in respect of an appeal, that decision is, subject to this section, final.

(2) A person who wishes to challenge a decision of a Full Bench in respect of an appeal may apply to the Supreme Court, by motion supported by affidavit, for an order nisi calling on the Full Bench to show cause why the decision should not be quashed in whole or in part.

(3) On the return of an order nisi referred to in subsection (2), the Supreme Court may discharge the order or make it absolute with or without costs.

(4) A decision of a Full Bench in respect of an appeal shall not be challenged otherwise than under this section."

9 The particular point which arises, as I have said, is whether the ruling of the Full Bench as to the competency of the appeal is "a decision ... in respect of an appeal". For the reasons which follow, I take the view that it is.

10 I have to determine the meaning of the phrase "a decision ... in respect of an appeal", and hence what it encompasses. This is to be done by reference to its context; CIC Insurance Limited v Bankstown Football Club Limited (1995) 187 CLR 384 at 408, Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (2008) 82 ALJR 1505 per Kirby J at 1508 [9]. Its immediate setting is significant; Avondale Motors (Parts) Pty Ltd v FCT [1971] HCA 17; (1971) 45 ALJR 280 per Gibbs J at 283.

11 Were it not for the use of the identical phrase in the preceding section, headed "Procedure on appeals", I would have no hesitation, confining the exercise to the strict literal interpretation of the phrase, in holding that the ruling of the Full Bench under discussion was a "decision in respect of an appeal". The conjunctive phrase "in respect of" is one requiring no more than a relationship, whether direct or indirect, between two subject-matters; O'Grady v Northern Queensland Company Limited [1990] HCA 16; (1989) 169 CLR 356 per Toohey and Gaudron JJ at 374 and per McHugh J at 376.

12 In Commissioner of Corrective Services v Walker [2007] NSWCA 213 an appeal from a decision of the Government and Related Employees Tribunal was considered. The Tribunal had heard argument and ruled on what was described as "the preliminary question as to whether the Tribunal possesses jurisdiction to hear the appeal". The Tribunal was empowered to make a decision allowing or disallowing the appeal or make "such other decision with respect to the appeal as it thinks fit". In the Court of Appeal, the appellant argued that a decision with respect to jurisdiction to hear an appeal was not a "decision with respect to the appeal" within the meaning of the relevant section, but was a decision on a question anterior to it, namely whether jurisdiction should be assumed or not.

13 That argument was rejected. Santow JA (Mason P and McColl JA agreeing) said at [31]:

"... This was a decision of a Tribunal as to whether it should or should not entertain the appellant's appeal, by reference to whether the appeal to the Tribunal was competent. Though it was essentially a decision as to jurisdiction, that to my mind is no less a decision of the Tribunal 'in respect of an appeal' as would be a merits decision in relation to that appeal once jurisdiction was assumed."

14 That statement seems directly applicable to the present situation. However, as I alluded to earlier, what causes me some hesitation is that the phrase "decision in respect of appeal" is used three times in s71, and a consideration of those provisions demonstrates that the phrase might not have the breadth which a literal reading gives to it. It should also be noted that the phrase "in respect of", although denoting considerable width of connection between two subject-matters, is a phrase which also "gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends"; Workers' Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642 at 653.

15 Both ss71 and 72 appear in PtVI entitled "Appeals". Section 71 makes provision for, amongst other things:

•

the Full Bench requiring the appellant to provide further and better particulars of the grounds for appeal - s71(2A).

•

the suspension by the Full Bench of the operation of the award or decision being appealed against - s71(4).

•

the conditional or unconditional grant of leave by the Full Bench for leave to appeal to an organisation or any person, on the hearing of the appeal - s71(5), (6).

•

the grant of leave by the Full Bench to admit evidence in matters other than that raised in the proceedings in respect of the matter appealed against - s71(8).

•

the determination by the Full Bench as to whether it will hear argument only or hear both evidence and argument - s71(9).

"On the hearing of an appeal, a Full Bench may do one or more of the following:

(a) confirm, revoke or vary the award or decision appealed against;

(b) make an award or decision dealing with the subject-matter of the award or decision appealed against;

(c) direct the Commissioner who made the award or the Commissioner or Registrar whose decision is appealed against, or another Commissioner, to take further action to deal with the subject-matter of the award or decision in accordance with the directions of the Full Bench.

The three instances of the use of the phrase "decision in respect of an appeal" which appear in s71 are as follows:

"(17) A Full Bench shall give its decision in respect of an appeal in writing.

(18) A decision of a Full Bench in respect of an appeal shall contain the reasons for the appeal.

(19) A Full Bench is to cause a copy of its decision in respect of an appeal to be served on -

(b) in the case of an appeal relating to an award or an interpretation, on any organization which under section 63(10) was determined by a Commissioner to have an interest in the award or interpretation."

17 In addition to the specific matters provided for in s71(17), (18) and (19), there are of course many matters upon which a Full Bench may make "a decision". Some may involve due consideration and the exercise of the discretion, such as an opposed adjournment application; some may be simply procedural in nature. If the phrase "decision in respect of an appeal" is to be given its broadest literal meaning, all of those decisions would qualify as decisions in respect of an appeal.

18 I cannot think that it was intended that in respect of all decisions of whatever nature, the operation of s71(17), (18) and (19), would be triggered. The scheme would operate unreasonably if that were the case. This suggests that there is some limitation on the scope of the phrase under consideration.

19 At this point, I need to note a further principle of statutory interpretation. Where a word or phrase is used continually it should be continually given the same meaning; Registrar of Titles (WA) v Franzon [1975] HCA 41; (1975) 132 CLR 611 per Mason J at 618. This would require, reading s71 before s72, that the phrase has the same meaning in s72 as it has in s71, provided it is clear that s71 does not operate subserviently to s72. Given the respective subject-matters of the two sections I do not think that is the case.

20 As to what meaning the word "decision" may have in any given context, counsel for the applicant referred to the judgment of Deane J in Director-General of Social Services v Chaney [1980] FCA 87; (1980) 47 FLR 80. At 100, in a frequently cited passage his Honour said:

"The word 'decision' is a word of indeterminate meaning. In some contexts, it can refer to the mental process of making up one's mind. In the context of judicial or administrative proceedings, the word will ordinarily refer to an announced or published ruling or adjudication. In such a context, the word 'decision' may be apt to include the determination of any question of substance or procedure, including, for example, rulings on procedural questions such as whether particular evidence should be received, or the meaning of the word may be limited to a determination effectively resolving an actual substantive issue. When the word 'decision' has the last-mentioned limited meaning, it can refer to any such determination whether final or intermediate ... or be limited to referring only to a determination which effectively disposes of the matter in hand ...".

21 In that case, the Full Court of the Federal Court had to determine the competency of an appeal to that court from the Administrative Appeals Tribunal. The Tribunal had made a preliminary ruling that it had had jurisdiction in the appeal. The relevant provision created the right to appeal to the Federal Court "... on a question of law, from any decision of the Tribunal". Deane and Fisher JJ (Northrop J dissenting) held that an appeal lay only from a decision which constituted the effective decision or determination of the application for review. At 104, Deane J said that as the ruling did not effectively dispose of the proceedings, it was not a decision from which an appeal lay. He observed that the position would have been different if the ruling had gone the other way, in that such a ruling would have disposed of the proceedings.

22 Chaney's case can be readily distinguished from the present one. In this case the section contains the words "in respect of", whereas the provision considered in Chaney related to an appeal "on a question of law, from any decision". Additionally, the majority was influenced by procedural provisions operating in the event of an appeal. These required the Tribunal to take certain steps, which were seen as disruptive of the appeal process if applied at an intermediate stage, and hence as militating against a broad construction.

23 In my view there is some limitation on what is encompassed by "decision in respect of an appeal" in the Act s72(2). Assuming that it has the same meaning where it appears in ss71 and 72, it might be argued that it is confined to the types of decisions referred to in s71(13). However, the use of the phrase "in respect of" and the absence of the simple device of making ss71(17), (18) and (19) and 72(1) and (2), explicitly referable to s71(13), lead me to the conclusion that the meaning of "decision in respect of an appeal" is wider.

24 It may be that, broadly speaking, the phrase "decision in respect of an appeal" relates to substantive issues as distinct from mere procedural ones. It is unnecessary though to decide the precise scope of that expression in s72(2) or where it otherwise appears. Each particular case would need to be examined. Confining myself to what is necessary for a decision in this case, I apply Commissioner of Services v Walker (above) and hold that a decision by the Full Bench as to the competency of an appeal before it is a "decision with respect to an appeal" within the meaning of the Act, s72(2).

Was the Commissioner's order one made under s31(1)?

25 The Act, s19, sets out the jurisdiction, functions and powers of the Commission. By s19(1), the Commission has jurisdiction to hear and determine any matter arising from, or relating to, an industrial matter. By virtue of s19(2)(c), the Commission may conduct hearings for settling industrial disputes. Section 3(1) defines "industrial dispute" as a dispute in relation to an industrial matter that has arisen or is likely to arise or is threatened or impending. "Industrial matter" is defined as including (inter alia) a matter relating to "the termination of employment of an employee or former employee, or the reinstatement or re-employment of an employee or a former employee who has been unfairly dismissed or the payment of compensation to such an employee".

26 The further relevant provisions of the Act are as follows:

"29 Hearings for settling disputes

(1) An organization, employer, employee or the Minister may apply to the President for a hearing before a Commissioner in respect of an industrial dispute.

...

(1A) A former employee may apply to the President for a hearing before a Commissioner in respect of an industrial dispute relating to -

(a) the termination of employment of the former employee; or

(b) severance pay in respect of employment of the former employee terminated as a result of redundancy; or

(d) a dispute over the entitlement to long service leave, or payment instead of any such leave, or the rate of ordinary pay at which any such leave or payment is to be paid in respect of the former employee.

(a) allocate to a Commissioner for hearing an application made under this section; and

(b) cause notice of the time and place of the hearing to be given to a person who, or an organisation which, the President considers is able to assist in the settlement or prevention of the industrial dispute.

...

30 Criteria applying to disputes relating to termination of employment

...

(2) In considering an application in respect of termination of employment, the Commission must ensure that fair consideration is accorded to both the employer and employee concerned and that all of the circumstances of the case are fully taken into account.

...

(5) Where an employer terminates an employee's employment, the onus of proving the existence of a valid reason for the termination rests with the employer.

(6) Where an applicant alleges that his or her employment has been unfairly terminated, the onus of proving that the termination was unfair rests with the applicant.

...

(9) The principal remedy in a dispute in which the Commission finds that an employee's employment has been unfairly terminated is an order for reinstatement of the employee to the job he or she held immediately before the termination of employment or, if the Commission is of the opinion that it is appropriate in all the circumstances of the case, an order for re-employment of the employee to that job.

(10) The Commission may order compensation, instead of reinstatement or re-employment, to be paid to an employee who the Commission finds to have been unfairly dismissed only if, in the Commission's opinion, reinstatement or re-employment is impracticable.

...

(12) Where the Commission finds that an employee's employment has been unfairly terminated and has determined that reinstatement or re-employment is impracticable, any amount of compensation must not exceed an amount equivalent to 6 months' ordinary pay for that employee.

...

31 Orders arising from hearings

(1) Subject to this section, where the Commissioner presiding at a hearing under section 29 is of the opinion, after affording the parties at the hearing a reasonable opportunity to make any relevant submissions and considering the views expressed at the hearing, that anything should be required to be done, or that any action should be required to be taken, for the purpose of preventing or settling the industrial dispute in respect of which the hearing was convened, that Commissioner may, by order in writing, direct that that thing is to be done or that action is to be taken.

(1A) Before deciding whether or not to make an order in respect of an industrial dispute relating to termination of employment, a Commissioner is to give effect to the provisions of section 30.

(1B) If a Commissioner, in hearing an industrial dispute relating to termination of employment, finds that an employee or a former employee has been unfairly dismissed, the Commissioner may -

(a) if he or she believes it to be appropriate, order reinstatement or re-employment of the employee or former employee; or

(b) if in the Commissioner's opinion reinstatement or re-employment is impracticable, order that the employer pay the employee or former employee an amount of compensation, instead of reinstatement or re-employment, that the Commissioner considers appropriate in the circumstances, subject to section 30(12).

(1C) A Commissioner, in hearing an industrial dispute relating to termination of employment resulting from redundancy, may make an order in respect of severance pay for an employee or former employee whose employment is to be, or has been, terminated.

...".

27 After setting out the arguments made on behalf of the Minister and by Dr Bennett, and the relevant provisions of the Act, the members of the Full Bench:

•

said that they believed the words of s31(1) were "clear and capable of interpretation and application".

•

referred to the general jurisdiction of the Commission established by the Act, s19, and the relevant parts of the definitions of "industrial dispute" and "industrial matter".

•

said "S31 prescribes the issue of orders to settle an industrial dispute about an industrial matter ... That being so the order of the Commission is one made pursuant to s31(1) and is therefore capable of appeal". ( No further reasons or explanation were given for this conclusion.)

28 There is a need to consider is what it is that the Commissioner did. He purported to dismiss "the application". What application he purported to dismiss is unclear. There was an application made by Dr Bennett to the President of the Commission, pursuant to the Act, s29(1A) "for a hearing before a Commissioner in respect of an industrial dispute". Leaving aside s29(2), it is plain enough that the application referred to in s29(1A), is exactly what it says it is; an application for a hearing. Section 29(1B), (1C) and (1D) all refer to "an application for a hearing". Rather curiously though, s29(2)(a) requires the President to "allocate to a Commissioner for hearing an application made under [the] section." (By s29(2)(b) the President must also cause notice of the time and place of "the hearing" to be given to any person or organisation who or which the President considers is able to assist in the settlement or prevention of the industrial dispute.)

29 On the face of s29(2)(a), it is the application for a hearing which is allocated to a Commissioner for hearing, rather than the "hearing in respect of an industrial dispute" itself. There is no further reference in any subsequent provisions to the hearing of an application for a hearing. Section 30(2) refers to an "application in respect of termination of employment", although in its context this is more likely to mean the hearing of the dispute than the application for a hearing as referred to in s29(1) and (1A). When enacted in 1984, s29(2) required the President to convene a hearing before a commissioner, unless he [sic] believed it would not assist the settlement or prevention of the dispute. In 1994 that qualification was removed and it became mandatory to convene a hearing. It is not clear, but it may be that on that basis, s29(2) as currently worded is still intended to refer to the hearing as to the dispute itself.

30 On the other hand, it may be, recognising the change of wording, that the Commissioner to whom the application for a hearing is allocated, now has a discretion as to whether or not to embark on a hearing of the dispute, depending on the circumstances. In any event, in this case there was a lengthy hearing in which Dr Bennett's challenge to the grounds on which he was dismissed, his allegation of unfair dismissal and his claim for reinstatement were fully ventilated. It follows that the Commissioner cannot be taken to have dismissed the application for a hearing.

31 In dismissing "the application" the Commissioner may have been referring to the application in respect of termination as referred to in s30(2), the claim of unfair termination referred to in s30(6) or perhaps to claims for reinstatement, re-employment or compensation in the alternative as provided for in s30(9) and (10), and s31(1B). I should note that s29(1D) provides that an application for a hearing in respect of a dispute relating to termination of employment must contain the full particulars of certain matters, included in which is the nature of the claim and the remedy being sought. Notwithstanding the terms of this section, the form of the application apparently made available by the Commission makes no provision for the supply of such particulars. In any event, as counsel for the applicant submitted, whatever it was that the Commissioner purported to do, the question remains as to whether it was an "order made by a Commissioner under s31(1) after a hearing relating to any termination of employment ...".

32 The nature of the orders contemplated by s31(1) was discussed by Blow J in Blue Ribbon Products Pty Ltd v Tasmanian Industrial Commission (No 2) [2004] TASSC 28. There were two issues in that case. The first was whether in conducting a hearing in respect of an industrial dispute and making orders under s31(1), a commissioner was acting administratively or judicially. It was held that decisions whereby orders are made under s31 are properly characterised as decisions of an administrative character, and hence subject to review pursuant to the Judicial Review Act 2000. The second issue in that case was whether an order could be made binding on a person who was not a party to the dispute. His Honour set out some of the history of the "unfair dismissal" provisions in the Act, and in [41] said:

"... Prior to the 1997 amendments, a claim by a former employer for compensation for an allegedly unfair dismissal, unaccompanied by a claim for reinstatement or re-employment, was not capable of being the subject of an industrial dispute within the meaning of the Act: New Town Timber & Hardware Pty Ltd v Gurr [(1995) [1995] TASSC 79; 5 Tas R 71]. The 1997 amendments enabled all claims by former employees for reinstatement, re-employment or compensation to be regarded as the subjects of industrial disputes, and dealt with by the Commission. The 1997 amendments introduced an earlier version of s31(1B), empowering a commissioner to make an order requiring an employer to pay compensation to an employee if he or she considered that the employee had been unfairly dismissed and that reinstatement was impracticable. Until the commencement of the 2000 amendments, there was no express requirement that a commissioner not order compensation instead of reinstatement or re-employment only if reinstatement or re-employment was impracticable. That requirement was introduced, in s30(10), by the 2000 amendments. Those amendments also introduced s30(9), which provides that the 'principal remedy' in such cases is reinstatement or re-employment, and the present s30(1B), which expressly provides for reinstatement or re-employment to be ordered if the commissioner believes such a course to be appropriate, and for compensation to be ordered if the commissioner believes reinstatement or re-employment is impracticable. The evident intention of Parliament was to prevent commissioners from too readily ordering the payment of compensation for the loss of a worker's employment, by requiring the ordering of reinstatement or re-employment whenever such a course was appropriate or not impracticable. It does not follow that Parliament intended a commissioner ordering reinstatement not to have the power to make an ancillary order, or an order that went further than simply ordering the employer to reinstate the employee. For example, I do not think it would follow that a commissioner may not now make an order that a reinstated employee be treated as having seniority or career progression rights as if his or her employment had not been terminated or interrupted. More significantly, there is nothing in the history of the legislation nor either of the relevant second reading speeches (House of Assembly, 29 April 1997, 31 August 2000) to suggest that Parliament did not intend commissioners to have whatever power s31(1) confers to make ancillary orders or wider orders in such cases, including orders binding persons or entities other than employers."

"Having regard to the purpose of the relevant provisions in the Act, the ordinary meaning of s31(1), the history of the relevant legislative provisions, and the other matters I have referred to, I think that Parliament intended s31(1) to operate very widely in its scope, and to enable orders to be made imposing requirements to take positive action upon such persons or entities as commissioners think appropriate according to the circumstances of particular cases, provided only that there must be some industrial character to any thing required to be done or action required to be taken. ..." [my emphasis]

34 The passage I have set out in par[32] and the whole of the larger passage in which it appears were adopted by Crawford J (as he then was) (Evans J agreeing) in his judgment on the unsuccessful appeal: Blue Ribbon Products Pty Ltd v Tasmanian Industrial Commission [2004] TASSC 142; (2004) 13 Tas R 261 at 279 [43].

35 Little is to be gained from tracing the history of the amendments to s70(1) as against those made to s31(1). It cannot be shown that the scheme relating to unfair dismissal claims was changed and enlarged without any attention being given to s70(1). As originally enacted, s70 made no reference to s31(1), nor indeed to any orders made after s29 hearings or what were then conferences under the original s30. (Section 30 originally dealt with conferences to settle or prevent industrial disputes. The section was repealed in 1997 and replaced with a version of its present subject-matter.) Section 31(1) remains basically in its original form except that references to conferences under s30 were deleted in 1997. In 1992, s70(1) was amended to include reference to particular orders made by a Commissioner under s31. Those orders were:

•

an order directing that an amount be paid or that no amount be paid to a person who has been found by the Commissioner to have been unfairly dismissed in circumstances where reinstatement or re-employment was not possible or practical or to a person who has been retrenched or made redundant involuntarily.

•

an order made by a Commissioner under s31 directing that a person be reinstated or re-employed.

•

an order made by a Commissioner under s31 directing that a person not be reinstated or re-employed.

36 Minor amendments were made to s70 in 1994, with more substantial amendments being effected in 1997. In that year, s70(1)(b) was enacted essentially as it now stands, with the exception of the addition in 2000 of the reference to long service leave, and the inclusion of the words "the mode, terms or conditions of employment or" in 2007.

37 There is one additional matter which should be mentioned. In Pioneer Building Products t/as Nubrik v Tasmanian Industrial Commission [1999] TASSC 140, Cox CJ had cause to consider ss31 and 70 in the context of an argument that there was no appeal to the Full Bench from a refusal by a Commissioner to extend the time in which an application for a hearing before a Commissioner in respect of an industrial dispute had to be made; see s29(1B). At [10] his Honour noted that it was "common ground that the right of appeal given by s70 in respect of orders made 'under s31(1) after a hearing relating to an industrial dispute in respect of any termination of employment including termination resulting from redundancy', would include orders made under s31(1B) and (1C)". On the face of it, that may seem a little odd but I think the proposition is correct. Section 31(1) creates the power for the Commissioner to make any order directing that something be done or action be taken. Such orders as are provided for in s31(1B) and (1C) are specific instances of what is generally authorised by s31(1). Any order made under s31(1B) or (1C) would therefore be "an order made under s31(1)".

The concept of the hearing in respect of an industrial dispute

38 In conducting a hearing in respect of an industrial dispute, a Commissioner is embarked upon the exercise of settling (or preventing) an industrial dispute. This is made expressly clear by the terms of ss19(2)(c), 29(2)(b) and 31(1), the latter making specific provision for "orders arising from hearings" directed to that purpose. Over a period of time, particularly by amendments in 1997, Parliament has expanded the scope of such a hearing so that it may relate to a dispute as to the termination of employment, and has more specifically addressed what remedies are available to a former employee. Now, under s29A(1)(a), a Commissioner may hear a dispute relating to the termination of a former employee. Section 30 deals with the criteria to be applied to dispute, and refers to "a valid reason for the termination" (subs(5)) and "unfair dismissal" (subs(6)), findings as to which have to be made within the scope of such a hearing; see s31(1A). Section 31(1B) provides that a Commissioner may make an order for compensation if reinstatement or re-employment is impracticable.

39 But in all of this the vehicle by which claims by former employees in respect of unfair dismissal are pursued remains one within the conceptual framework of the prevention or settlement of an industrial dispute. The termination of an individual's employment is treated as an industrial matter in relation to which there may be a dispute. That dispute is heard by a Commissioner, with s31 prescribing what orders may be made after such a hearing. Parliament has chosen this to be so. A separate procedure for the making and resolution of unfair dismissal claims by former employees has not been created. Such claims remain in the same conceptual context as all industrial disputes.

40 In relation to hearings in respect of disputes other than ones relating to the termination of employment, it might be readily contemplated that a Commissioner may see it as undesirable or unnecessary that anything be done for the prevention or settlement of that dispute. As a result of the terms of s70(1)(b), in the absence of any orders requiring that anything be done or action be taken, no appeal would lie. As I have noted, in the case of a hearing of a dispute relating to the termination of employment, the "criteria" under s30(5) and (6) have to be addressed. Findings adverse to the employee would inevitably mean that no orders under s31(1B) are made. It is highly unlikely that there would be any other order directing that anything be done or action be taken. In that event, because no specific accommodation for the rejection of unfair dismissal claims has been made, the same situation as to an appeal exists.

41 As to this case, in the conceptual framework in which the Commissioner was operating, the "dismissal of the application" might well be taken as the expression of an opinion that nothing was "required to be done" nor any "action required to be taken", for the purpose of preventing or settling the industrial dispute. If the dismissal of the application is properly taken to be the rejection of Dr Bennett's claims for reinstatement or re-employment or compensation in lieu, then such a rejection does not fall within the terms of orders which can be made under s31(1).

42 Within the scope of the hearing, the Commissioner made findings that the employer had valid reasons for the termination, and that Dr Bennett was not unfairly dismissed. Such findings under the Act, s30(5) and (6) are not orders made under s31(1). Although they may be "made after a hearing relating to an industrial dispute in respect of any termination of employment" - (s70(1)(b)), they too do not fit the plain description of the orders which can be made under s31(1).

43 Counsel for the applicant referred me to some observations on statutory interpretation made by Spigelman CJ and Mason P in Harrison v Melhem [2008] NSWCA 67, as being applicable. I agree that they are relevant to the exercise in this case. At [16] Spigelman CJ said:

"16 The task of the court is to interpret the words used by Parliament. It is not to divine the intent of the Parliament. (See State v Zuma [1995] ZACC 1; (1995) (4) BCLR 401 at 402 [1995] ZACC 1; [1995] (2) SA 642; Matadeen v Pointu [1998] UKPC 9; [1999] 1 AC 98 at 108; R v PLV [2001] NSWCCA 282; (2001) 51 NSWLR 736 at [82]; La Compagnie Sucriere de Bel Ombre Ltee v Government of Mauritius Privy Council, 13 December 1995, unreported; Pinder v The Queen [2002] UKPC 46; [2003] 1 AC 620.) The courts must determine what Parliament meant by the words it used. The courts do not determine what Parliament intended to say. (See Nolan v Clifford [1904] HCA 15; (1904) 1 CLR 429 at 449; R v Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 459; Wik Peoples v Queensland [1996] HCA 40; (1996) 187 CLR 1 at 168-168; Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1 at [10] and see the authorities discussed in R v Young [(1999) [1999] NSWCCA 166; 46 NSWLR 681] at [5].)"

"159 There are many authoritative statements that legislation must be construed by reference to what Parliament has said through its enactment, as distinct from what others, including ministers, may wish or think Parliament intended (see Nolan v Clifford [1904] HCA 15; (1904) 1 CLR 429 at 449; Re Bolton; Ex parte Bean [1987] HCA 12; (1987) 162 CLR 514 at 518; Plaintiff S157/2002 v Commonwealth [2003] HCA 2, 211 CLR 476 at 499[55]; Wilson v First County Trust Ltd (No 2) [2003] UKHL 40, [2004] 1 AC 816 esp at [66], [139], [178]).

160 It does not follow that reference to the intention of Parliament is meaningless. On the contrary, the duty of courts is to give effect to that intention, but only as it is expressed in legislation (see Re Bolton at 518 per Mason CJ, Wilson J and Dawson J; Singh v Commonwealth [2004] HCA 43, 222 CLR 322 at 335[19] per Gleeson CJ). Lord Reid expressed it pithily in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] UKHL 2; [1975] AC 591 at 613:

We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said.

161 There will always be situations in which a court can be satisfied that the intention of the maker of a document is not reflected in the text chosen. Sometimes even Parliament can miss its intended target in a manner where that target is nevertheless plain, in which event a court should endeavour, if possible, to do more than record that the target has been missed (Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 424)."

45 I do not overlook the purposive approach to statutory interpretation which is mandated by the Acts Interpretation Act 1931, s8A, nor that the relevant provisions of the Act might be said to be remedial, and hence to be construed beneficially. However, in my view no amount of generosity in the approach can result in a construction of s31(1) which is wide enough to include what it is that the Commissioner did in this case. If Parliament intended the situation in which a Commissioner makes no order requiring anything to be done or any action to be taken, to be the subject of an appeal to the Full Bench, it did not use language from which that intention is in any way discernible. The same comment applies to findings under s30(5) and (6) as such; that is, in the absence of any actual orders under s31(1) directing that things be done or action be taken.

46 For the foregoing reasons, the Commissioner's order dismissing the application was not an order under s31(1), and accordingly not capable of being the subject of an appeal to the Full Bench pursuant to s72(2). I therefore hold that the Full Bench was wrong to conclude that the appeal by Dr Bennett was competent. The order nisi will be made absolute and the ruling of 17 December 2008 quashed.

Minister Administering the State Service Act v Leary and Others [2009] TASSC 24

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Judgment (95 paragraphs)

Minister Administering the State Service Act v Leary and Others [2009] TASSC 24 (22 April 2009)

Minister Administering the State Service Act v Leary and Others [2009] TASSC 24 (22 April 2009)

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Legislation Cited (1)

Cases Cited (15)