North West County Council v Dunn

In Manuel's Case, Hardie A-J.A. [1] expressed the opinion that there is "some force" in the contention that s. 99 "constituted a complete code, and by implication excluded other statutory provisions, such as those in the industrial arbitration legislation, dealing with the same subject matter". But his Honour thought that the legislature had not clearly indicated an intention that dismissed employees "cannot call in aid the rights and remedies conferred by the reinstatement provisions of the Industrial Arbitration Act ". As I have said earlier, I do not think it is necessary to ask whether there is in s. 99 a complete code. For even if it does not displace all other rights and remedies arising out of the contract of employment and its termination, it may indicate sufficiently an intention that employees to whom it applies may have their services terminated effectively and finally in accordance with its provisions and an intention that its provisions are not to be rendered ineffectual by the making of a reinstatement order. It is to be observed that Hardie A-J.A. referred to the reinstatement provisions as giving rights or remedies to the dismissed employees, whereas Holmes J.A. considered that there is a sharp contrast between the rights of individual employees on the one hand, and an industrial matter, which is the concern of the union, on the other hand. But although in a reinstatement application it is the union that takes action, nevertheless, an order, if made, benefits the particular employee and confers no direct benefit upon anyone else. It is not inaccurate, in my opinion, to speak of such an application as a remedy available to the employee, even if he must have the support of his union in order to take advantage of it.

1. (1968) 70 S.R. (N.S.W.), at p. 384; 88 W.N. (Pt 2), at p. 284; 16 L.G.R.A., at pp. 311-312.

The question is whether the legislation should be interpreted as indicating sufficiently an intention that the reinstatement provisions are not to be applicable to employees of councils whose employment has been terminated in accordance with s. 99. Hardie A-J.A. pointed out in Manuel's Case [2] that such an intention might well have been expressed by making an amendment to the proviso to s. 20 (1), which in relation to certain employees excludes the power to make an award consisting of a reinstatement order. But I have come to the conclusion that, in relation to the employees to whom s. 99 applies, the special provisions of the Local Government Act take effect to the exclusion of so much of the more general provisions of the Industrial Arbitration Act as would give authority to order their reinstatement. In my opinion, the existence in relation to those employees of that power would be so incompatible with the operation of the relevant provisions of the Local Government Act and with the execution and performance by these statutory bodies of their statutory powers and duties that it should be held that it was not intended that the power should be applicable to those employees.

1. (1968) 70 S.R. (N.S.W.) 378; 88 W.N. (Pt 2) 279; 16 L.G.R.A. 306.

The particular difficulties which would be created if a dismissed shire clerk were to be reinstated under the provisions of the Industrial Arbitration Act caused a majority of the Court of Appeal to decide in Ex parte Sutherland Shire Council; Re Cahill [1] that a conciliation committee has no jurisdiction to order his reinstatement. But to accept the decision in Manuel's Case [2] and then to except from its application the particular case of a shire clerk does not seem to me to be a satisfactory solution of the difficulties which are encountered in attempting to give effect to the two sets of provisions. If one accepts the decision in Manuel's Case [2] and the reasoning upon which it was based, I share the difficulty which Mason J.A. felt in the later case in making a distinction between town and shire clerks and other servants of councils. When any servant is dismissed in accordance with s. 99, extraordinary consequences may attend his reinstatement if this is forced upon the council. If his position has already been filled, its occupant must then be dismissed or the council must employ two servants to do the work of one. That is, of course, a problem which might confront any employer against whom a reinstatement order is made. But the position of an ordinary employer differs from that of a council. In the first place, if he has to dismiss an employee to make way for a reinstated employee, he is at liberty to do that without troubling about such restrictive provisions as are contained in s. 99, whereas in many cases a council would be required to go through the procedures laid down by that section in order to get rid of the servant who had replaced the dismissed employee. Furthermore, the power of the council to appoint servants is limited by s. 95 (1) to the appointing of such servants as it thinks necessary to assist in the execution of the Local Government Act or any Act conferring powers or imposing duties on the council and it is expressly forbidden to appoint or to pay any person in contravention of that section (see s. 95 (4)). It is true that this provision is expressed to be subject to the provisions of the Local Government Act or any other Act. But it can hardly be said that it would be proper for a council to employ and to pay a servant whose services it did not require. Yet this it must do if it is ordered to reinstate a servant and if his place has already been taken by another whom the council is unwilling to dismiss, or if the services of the servant who has been dismissed and who must be reinstated were in the opinion of the council no longer required. Reference has already been made to the circumstances that, if the power exists, a servant may be reinstated to whom the council has already been obliged to pay his salary for the period of his suspension (sub-s. (11)) and to pay compensation as directed by the Minister in accordance with sub-s. (11A), as well as paying expenses and costs in respect of the inquiry itself (sub-ss. (9) & (10)). If in such circumstances a public body, which has a prima facie right under s. 95 to remove its servants as well as a right to appoint such servants as it thinks necessary, may be compelled to restore to its employment and to pay a servant whom it does not want then this appears to me to contradict what s. 99 provides. That section does indeed impose a drastic limitation upon the power of a council to dismiss a servant (see Sutherland Shire Council v. Finch per Menzies J. [1] ). In addition, in some cases it attaches to a dismissal in exercise of that power the very substantial obligations to which I have referred. But what s. 99 is careful to preserve is the right of the council, after having the benefit of the inquiry and a report, to make for itself the ultimate decision whether to terminate the employment or not. But if the provisions of the Industrial Arbitration Act apply, that right may be destroyed.

1. (1969) 91 W.N. (N.S.W.) 378; 19 L.G.R.A. 197. 2. (1968) 70 S.R. (N.S.W.) 378; 88 W.N. (Pt 2) 279; 16 L.G.R.A. 306. 3. (1968) 70 S.R. (N.S.W.) 378; 88 W.N. (Pt 2) 279; 16 L.G.R.A. 306. 4. (1970) 123 C.L.R., at p. 657; 20 L.G.R.A., at p. 353.

In my opinion it is not a valid answer to the foregoing considerations to say that the power to order reinstatement is unlikely to be used in such a way that the consequences to which I have referred would attend its exercise. In my opinion the intention is indicated that the power of a council to dismiss its servants is to be restricted in relation to the servants to whom s. 99 applies to the extent therein specified and only to that extent. It was not intended that in relation to such servants its power of dismissal might be frustrated completely and that the council should be compellable to employ and pay a servant whose employment it has decided to terminate.

A power to direct reinstatement of an employee is given by s. 95 of the Industrial Arbitration Act. But that power may be exercised only when there has been a dismissal for one of the particular reasons therein specified. A dismissal for any such reason is made a penal offence. It is not necessary to consider whether or not that power to order reinstatement is applicable to employees to whom s. 99 of the Local Government Act applies. I say nothing as to that question except that I think that different considerations would be involved in dealing with it from those which govern the applicability to those employees of the provisions with which we are concerned in this case.

No argument was addressed to the Court on behalf of the respondents that the proceedings pending before the Conciliation Committee were protected by the Industrial Arbitration Act from supervision by the Supreme Court in the exercise of its powers to restrain, by means of the prerogative writs, an attempt by a tribunal to exceed its jurisdiction. But although this question was not argued it is a question to which I should refer. It would not be right to hold that the Supreme Court should have made absolute the rule nisi for prohibition if it appeared that the Industrial Arbitration Act prevented it from making such an order. In Ex parte Casey; Re Sydney County Council [1] , the Supreme Court of New South Wales decided by majority that in the circumstances of that case the Court was precluded by s. 84 of the Industrial Arbitration Act from granting a writ of certiorari. Their Honours referred to the earlier decision as to the effect of s. 84 in Bank of New South Wales v. United Bank Officers' Association and the Court of Industrial Arbitration [2] , which I have mentioned above. In the present case, however, I think that s. 84 may be left out of account, since it relates to decisions, awards, orders and proceedings of the Industrial Commission or of a member of that Commission. Here the proceedings are not before the Commission or a member of it. The relevant privative provision is not s. 84 but s. 24 (11) which is in quite different terms from s. 84. The subsection provides:

The validity of any proceeding or decision of a committee or of the conciliation commissioner shall not be challenged except as provided by this Act. A similar provision in the Industrial Arbitration (Amendment) Act, 1926 N.S.W. was held in Morgan v. Rylands Bros. (Aust.) Ltd. [3] to preclude the Supreme Court from entertaining a suit for a declaration that an award of a Conciliation Committee was a nullity. I am of opinion that that decision does not govern the present case and that the reasons given for it do not require a like decision here. If the contentions on behalf of the Council are accepted, as I think they should be, this case is one in which the Conciliation Committee intends to hear and determine an application for the reinstatement of an employee, who is one of a class of employees in respect of whom no power to make such an order has been conferred upon the Committee. The fact that it has power, as has been here assumed, to make an order of that kind in relation to other classes of employees is, I think, irrelevant. The assertion by the Committee of its authority to deal in this case with an application for reinstatement of the employee is a claim to have jurisdiction in a matter which (upon the view that I take) does not relate to the subject with which the legislation deals, but to a subject in respect of which the intention has been indicated by the Parliament that no such power should exist: cf. R. v. Murray; Ex parte Proctor [1] . In such circumstances the Supreme Court is not precluded, in my opinion, from prohibiting the Committee from proceeding to exercise that jurisdiction by the provision in sub-s. (11) of s. 24 stating that the "validity" of a proceeding or decision of a Committee shall not be challenged, except as provided by the Act, that is, otherwise than by an appeal or an application pursuant to the earlier subsection of s. 24. 1. (1952) 53 S.R. (N.S.W.) 350. 2. (1921) 21 S.R. (N.S.W.) 593. 3. (1927) 39 C.L.R. 517. 4. (1949) 77 C.L.R. 387, at p. 398.

I have had the advantage of reading the reasons prepared by my brother Walsh and am in agreement with them. Accordingly, I consider that we should overrule the decision of the Supreme Court of New South Wales in Ex parte North West County Council; Re Manuel [2] , and allow the appeal in the present case.

1. (1968) 70 S.R. (N.S.W.) 378; 88 W.N. (Pt 2) 279; 16 L.G.R.A. 306.

I would add a few words on one minor aspect of the case. The employee was suspended from 3rd July 1970 by the Chief Electrical Engineer in the exercise of the power conferred by Ordinance 4, par. 13C (ci) of the Ordinances made under the Local Government Act, 1919, as amended (N.S.W.). Nothing was said in argument to cast any doubt on the efficacy of that suspension. However, it was clearly not until 23rd July 1970 that the Council, proposing to terminate the employment of the employee, suspended him under s. 99 (2) of the Local Government Act and stated the reason for the suspension under s. 99 (3). No argument was addressed to the question whether in these circumstances the Council had power to resolve that the employee be dismissed as from 3rd July 1970 rather than from 23rd July 1970, but as nothing turns on that question for the purposes of the present decision, it is unnecessary to express any opinion upon it.