100 In Euphoric, the appellant challenged the jurisdiction of the Commission to deal with a contract for the sale and delivery of petroleum. The contract provided an obligation on the vendor to deliver the petrol to a significant number of venues. In concluding that the Commission did not have jurisdiction, the Commission (Schmidt J with whom Wright J, President and Walton J, Vice-President agreed) had regard to the "tests" laid down in the majority judgment of Priestley and Handley JJA, and in the judgment of Mahoney JA in Production Spray Painting, noting (at [37]) that "plainly enough [the contract] led to the performance of work, in order that delivery could be physically achieved, the performance of the work necessarily involved, was not the purpose of the obligation". It was the fact that it was not the purpose of the contract for work to be performed that led the Court to the conclusion that the relevant contract was not within jurisdiction. As was held by Schmidt J:
38 In my view, that a contract for the sale of a product imposes an obligation upon the seller to deliver the product to the purchaser, at a particular place or places, is of itself not a sufficient basis to ground jurisdiction under s106, irrespective of how much or little work is required, as a practical matter, in order to effect such delivery. Once the contract seeks to deal with the work required to effect delivery, a different conclusion might result. This, however, was not such a case.
39 The purpose of this contract was to provide for the sale of petroleum by the appellant to the respondents, at regular intervals over the life of the agreement. In order that this purpose would be achieved, the contract stipulated that delivery of the petroleum to the respondents was to be effected at the various sites where the products were to be retailed, by the respondents and third parties. That obligation ensured that the purpose of the contract was achieved, namely that the petroleum which the respondents had purchased be delivered to it, in accordance with its express instructions as to the place of delivery. The transfer of the goods sold was thereby achieved, as contemplated by the Sale of Goods Act 1923 .
40 The transportation of the petroleum to the specified sites in order to affect the required delivery, was a consequential result of the sale contract. The respondents had no interest in how this was done, on what terms, or by whom. They could only complain if they did not receive delivery of the petroleum purchased, at the sites specified. It follows that this contract was simply not one which enlivened the Court's jurisdiction as the result of the delivery obligation.
41 Were a contrary view to be taken, it is difficult to see how the section could not be regarded as generally granting the Court jurisdiction in respect of all contracts for the sale of goods. An obligation to deliver goods sold attaches to every such contract, whether expressly dealt with or not. Meeting that obligation will always require the performance of work of one kind or another. What that work involves will depend upon the nature and amount of goods purchased, amongst other things.
42 While there may well be contracts for the sale of goods which make provision for the performance of work, so as to enliven the Court's jurisdiction under the section, a bare obligation to deliver to a particular place or places, without more, cannot do so. In my view that obligation is directed to ensuring that the purpose of the contract - the sale of the goods in question - is effected. The purpose of the obligation to deliver is not the performance of work, although that will be a result of the obligation being met.
101 Having set out the development of the jurisprudence in this way, it is appropriate to "test" the question of construction afresh (we stress that in doing so we have approached this matter with the observations, set out earlier, from the advice of the Privy Council in Caltex Oil v Feenan at 173 in mind).
102 The relevant jurisdictional fact that must be established in order to come within jurisdiction is "whereby a person performs work in any industry". When approaching the meaning to be attributed to that phrase, as with any issue of construction, there is little to be gained by "ritual incantations which emphasize the clarity of meaning which words have when viewed in isolation, divorced from their context": see Mason J in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1988) 157 CLR 309, 315. Context must be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise. As has been repeatedly emphasised, "the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute": see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] per McHugh, Gummow, Kirby and Hayne JJ by reference to Barwick CJ in Taylor v Public Service Board (NSW) (1976) 137 CLR 208 at 213.
103 "Context" is taken "in its widest sense" so as to embrace "such things as the existing state of the law and the mischief which, …, one may discern the statute was intended to remedy": see CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 per Brennan CJ, Dawson, Toohey and Gummow JJ at 408 where their Honours stated:
Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363 at 388, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent [referring to Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320-321].
(See also the recent application of that case by this Court in Fox v GIO Australia Ltd (2002) 56 NSWLR 512).
104 As was observed by the Chief Justice in Mitchforce (at [17]), it was considerations of "context" that initially led to s 88F being confined to circumstances involving an "industrial colour or flavour". It was these considerations that led to Sheldon J in Davies v General Transport (at 373) to conclude that the section was "not a revolutionary measure in general law reform" that provided a "form of palm tree control over the principles developed in the courts of common law and equity and the traditional statutes relating to contracts".
105 It was the "industrial context" which led Jacobs JA in VG Haulage to make the observations set out earlier. However, as Jacobs JA emphasised (at 88), it is the fact that "the transaction" leads "directly … to work in the industry - that … gives the industrial colour or flavour". This analysis is the lynchpin of the resolution of the legal issue raised by this matter, and it is, we consider, directly inconsistent with the Chief Justice's formulation in Mitchforce.
106 Similarly in Stevenson v Barham, the majority emphasised that what was being "rejected" by the Court of Appeal in V G Haulage, was "the argument that the powers of the Commission [were] confined to transactions which directly undermine awards or threaten industrial standards". Their Honour's continued: "what was being asserted was that so long as the transaction leads directly to work in any industry it has the necessary industrial colour or flavour".
107 There is, however, a further consideration. As was observed by the Chief Justice in Mitchforce (at [4]), the jurisdictional nexus between the relevant contract or arrangement and the performance of work is the term "whereby". Could it be said that some further consideration of this expression warranted a departure from the judgment in Stevenson v Barham?
108 The term "whereby" is clearly somewhat of an ambiguous term. The 3rd Edition of the Macquarie Dictionary defines the term "whereby" to mean "by what or by which". The 3rd Edition of the Shorter Oxford Dictionary defines the word to mean "by what means; how; by means or by the agency of which; in consequence of; as a result of or owing to which". The 8th Edition of the Oxford Concise English Dictionary defines "whereby" as "by what or which means". Butterworths Australian Legal Dictionary defines "whereby" to mean "by means of which; by this agency; from which source or document; according to which". The Longman Dictionary of the English Language defines the term to mean "in accordance with which; by which means".
109 The Full Bench in Becker's case considered the phrase "has its permitted dictionary meanings of 'by means of or by the agency of which'; 'in consequence of, as a result of, or owing to which' (Shorter Oxford)". Similar observations were made by Stephen J in Stevenson v Barham (at 193). The Privy Council in Caltex Oil (Australia) Pty Ltd v Feenan considered it should carry its "ordinary" meaning of "in consequence of which" or "in fulfilment of which".
110 Whilst there are clearly a number of permutations of meaning, each carrying a slightly different connotation, there are some points that are clear. Adopting the language of the Privy Council in Caltex (Australia) Pty Ltd v Feenan, the phrase "is to be treated as broad and comprehensive in its scope". The phrase is, to adopt what was stated by Jacobs and Mason JJ in Stevenson v Barham, drawn in the "widest terms". The power is "wide and far-reaching": per McKeon J in Mazzoni v Dean (referred to with approval in V G Haulage and Stevenson v Barham). It must be given effect "according to its width and generality" and its language is "intractable": see Barwick CJ in Stevenson v Barham at 192.
111 In our view, it is clear that the various attempts to "define" the meaning to be attributed to the term "whereby", all demonstrate that the jurisdictional hurdle of "whereby work is performed in an industry" is to be seen as a relatively undemanding one.
112 More importantly, the word "whereby" has featured in the authorities which we have earlier set out as stating the applicable jurisdictional test. We would again reiterate "so long as the transaction leads directly to work in any industry it has the necessary "industrial colour or flavour"": Stevenson v Barham at 200. This is the relevant jurisdictional fact that needs to be established: Stevenson v Barham at 201.
113 There are several factors which point towards such a construction despite the fact that it may cause some initial "judicial surprise":
1. It is more consistent with the wide language of the section;
2. It is more consistent with the section's purpose. The provision was initially introduced together with a raft of reforms to the "regulated contracts" provisions in the Industrial Arbitration Act 1940 and was drafted with the express purpose of catching a "subterfuge". It was plainly for this reason that the definition of the word "contract" was drawn in remarkably wide terms: "any contract or arrangement or any condition or collateral arrangement relating thereto". The initial attempts to avoid these "legal loopholes" was to deem certain persons employees. These efforts did not go far enough and the amendments must clearly be seen in light of this historical context. As was observed by Sheldon J in the seminal decision in Davies v General Transport, the section "does not … tolerate argument on such nice questions as whether the contractual relationship has been perfected".
3. The transactions that are to be examined to determine the relevant connection, that is, the "work … performed in any industry", are defined as being "any contract or arrangement, or any related condition or collateral arrangement". The significance of the breadth of this definition in light of the sections avowed purpose cannot be overstated. It is exemplified by Mazzoni v Dean and V G Haulage in that the actual parties to the relevant agreement need not be the person who ultimately performs the work. To paraphrase what was stated by Menzies J in Brown v Rezitis (1970) 127 CLR 157 at 169, the section is clearly intended to confer a comprehensive power upon the Commission to go to the substance of an arrangement and to do so in disregard of the legal dress in which the arrangement has been clothed. As was observed by Barwick CJ in Stevenson (at 192):
The legislature has apparently left it to the good sense of the Industrial Commission not to use its extensive discretion to interfere with bargains freely made by a person who was under no constraint or inequality, or whose labour was not being exploited.
4. The body to which the power is given - namely, the Commission in Court Session - is a superior court of record: s 152(1). It is a court of equivalent status to the Supreme Court: s 152(2). The Court exercises judicial power. The powers that are exclusively conferred on the Court Session are those provided in s 153, notably includes the power to make a binding declaration of right: s 154, proceedings for dispute orders under section 139 and proceedings for an offence taken before the Commission in Court Session, including proceedings for contempt. (As to the apparent concern with the definition of "industrial matters" and the "objects" of the Act, we would observe that the term "industrial matters" has no restrictive effect on either the award or agreement making power under the 1996 Act - the focus being more directed towards the broader term, "conditions of employment". In fact, the only area in which the term "industrial matters" plays a significant role is in the dispute powers given to the Commission in its guise as an arbitral body: see Part 1 of Chapter 3 of the Act and in particular the definition of "industrial dispute" in the dictionary incorporated by s 4. As for the objects provision, the foundational object, in our view, is that identified in s 3(a): namely, "to provide a framework for the conduct of industrial relations that is fair and just". It is, in our view, more consistent with that statutory mandate that the legislature would have intended a superior court of record when seeking to achieve the clear purpose to which the section is directed and to the transactions to which it is to examine, to have generously conferred the jurisdiction).
5. Finally, and perhaps most significantly for present purposes, the test of "leads directly to a person working in any industry" as earlier mentioned is of long standing and consistent application. It was established initially in the unanimous judgment of the Court of Appeal in 1970 (in V G Haulage), was adopted by the majority reasoning of the High Court in Stevenson v Barham in 1977, and has consistently been applied by both this Court and the Court of Appeal for nearly thirty years.
114 As was observed by the Privy Council in Dun v Dun (1959) 100 CLR 361 at 373, by reference to the judgment of Viscount Buckmaster in Barras v. Aberdeen Steam Trawling and Fishing Co [1933] AC 402 at 412 where his Lordship said, citing James LJ in Ex parte Campbell (1870) LR 5 Ch 703, 706:
Where once certain words in an Act of Parliament have received a judicial construction in one of the Superior Courts, and the legislature has repeated them without alteration in a subsequent statute, I conceive that the legislature must be taken to have used them according to the meaning which a court of competent jurisdiction has given to them.
See also Re Alcan Australia Ltd and Ors; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96 at 106.
115 The "true principle", perhaps is more readily recognisable as that stated by Denning L.J. in The Royal Court Derby Porcelain Co. Ltd. v. Raymond Russell (1949) 2 KB 417 where his Lordship said (at 429):
The true view is that the court will be slow to overrule a previous decision on the interpretation of a statute when it has long been acted on, and it will be more than usually slow to do so when Parliament has, since the decision, re-enacted the statute in the same terms. But if a decision is, in fact, shown to be erroneous, there is no rule of law which prevents it being overruled.
116 As was observed by Menzies J in Brown v Brook (1971) 125 CLR 275, in circumstances in which the meaning to be attributed to the relevant legislation had been "settled" (at 280):
The community is, I think, entitled to rely upon, and order its affairs upon, an interpretation of a statute settled by long standing decisions.
117 Moreover, this is not a case in which the Court can be said, in following an longstanding construction by a statutory predecessor, to be attempting to "qualify the unambiguous language of [the section] so as to effect some supposed policy of the legislature". In setting the jurisdictional hurdle as "leads directly to the performance of work in any industry", the Court is properly engaged in the process of "construing the words of the legislature" and not embarking upon an impermissible "attempt to legislate": cf Geelong Harbour Trust Commissioners v. Gibbs, Bright & Co. (1970) 122 CLR 504 at 513.