Quality Bakers v ALHMWU

Industrial Relations Commission (NSW)|2004-07-01|Before: Walton J, Sams DP, Mr J, Marks J

CITATION : Quality Bakers v ALHMWU [2004] NSWIRComm 318 APPELLANT: Quality Bakers Australia Pty Limited PARTIES : RESPONDENT: Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch

FILE NUMBER: IRC 3137 of 2004 CORAM: Walton J Vice-President; Sams DP; Murphy C CATCHWORDS : Appeal - bread vendors - appellant implemented corporate entity system to deliver bread - whether s5(1)(b), s5(3) and Schedule 1 of the Industrial Relations Act 1996 are confined to persons who are not otherwise employees at law - whether an award binding the appellant may be made under those provisions - statutory interpretation of definition of "employee" - review of legislative amendments providing for deemed employment - construction and purpose of "deemed employee" provisions - operation of Schedule 1 Clause 3 of the Industrial Relations Act 1996 - re-enactment rule of statutory interpretation - leave to appeal granted - appeal dismissed Industrial Arbitration Act 1940 s88E LEGISLATION CITED : Industrial Relations Act 1991 s5 Industrial Relations Act 1996 ss5 10 12 187 188 Schedule 1 clauses 1 2 and 3 Interpretation Act 1987 ss33 and 34 Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Delta Electricity [2003] NSWIRComm 135 Electrolux Home Products v AWU [2004] HCA 40 Flaherty v Girgis (1987) 71 ALR 1 Idoport Pty Limited and Anor v National Australia Bank Limited and Ors, National Australia Bank Limited v OAMPS Limited and Ors [2004] NSWSC 695 Khoury (M&S) v Government Insurance Office of NSW (1984) 54 ALR 639 Kingmill Australia Pty Ltd t/a Thrifty Car Rental v Federated Clerks' Union of Australia, New South Wales Branch (2001) 106 IR 217 Metropolitan Gas Co v Federated Gas Employees' Industrial Union (1924) 35 CLR 449 CASES CITED : Mills v Meeking (1990) 169 CLR 214 The Ombudsman v Commissioner of Police (1987) 11 NSWLR 386 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490 Re Alcan Australia Ltd, Ex Parte Federation of Industrial Manufacturing and Engineering Employees (1994) 181 CLR 96 R v Reynhoudt (1962) 107 CLR 381 Re Bugle Press Ltd [1961] Ch 270 Salvation Army (Vic) Property Trust v Fern Tree Gully Corp (1952) 85 CLR 159 Zoological Parks Board of New South Wales and The Australian Workers' Union, New South Wales [2004] NSWIRComm 85 HEARING DATES: 10/22/2004 DATE OF JUDGMENT: 12/09/2004

APPELLANT Mr R Buchanan of Senior Counsel with Mr S Benson of Counsel Solicitor: Mr D Lloyd Blake Dawson Waldron Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr J W Nolan of Counsel Industrial Officer: Mr M Vance Australian Liquor, Hospitatlity and Miscellaneous Workers Union, New South Wales Branch

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: WALTON J, Vice-President SAMS DP MURPHY C

Matter No IRC 3137 of 2004 QUALITY BAKERS AUSTRALIA PTY LIMITED v AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, NEW SOUTH WALES BRANCH. Application for leave to appeal and appeal against a judgment of Justice Marks given on 14 May 2004 in Matter No IRC 571 of 2003.

JUDGMENT OF THE COMMISSION [2004] NSWIRComm 318

1 Quality Bakers Australia Pty Limited ("Quality Bakers") seeks leave to appeal (and, should leave be granted, appeals) the decision of Marks J on 14 May 2004 (in ALHMWU v Quality Bakers [2004] NSWIRComm 113) pursuant to ss187 and 188 of the Industrial Relations Act 1996 ("the Act"). The Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch ("the Union") opposes the appeal.

2 The parties came before Marks J in proceedings concerning the Union's application for an award (to be known as the Bread Vendors etc (Quality Bakers) Australia Limited Award 2003) which would, if made, bind Quality Bakers. The dispute centred upon whether the Commission possessed the jurisdiction and power to make the award. Marks J's decision was confined to these issues: it was not concerned with any arguments as to the merits, or the terms and conditions, of the proposed award.

3 Marks J set out the parties' statement of agreed facts, which recorded the history of the relationship between Quality Bakers and those who deliver bread for it. Before 1992/3, Quality Bakers engaged independent contractors to sell and deliver bread in New South Wales. These independent contractors, "deemed employees" under the Industrial Arbitration Act 1940 and the Industrial Relations Act 1991, were covered by successive awards made by the predecessors of the Commission. In 1992/3, Quality Bakers terminated the engagement of these independent contractors (for consideration) and replaced them with employed delivery drivers. In May 2003, Quality Bakers proposed a new model: instead of employing drivers, it would engage companies as independent contractors to do the work. These companies would be obliged to employ drivers who would be covered by the Bread Industry (State) Award 1999.

4 His Honour summarised the fundamental issues as follows (at paragraph 7): The substantial matters which have given rise to these proceedings are those contained in paragraphs 7 to 10 in the agreed statement of facts. That is, Quality Bakers has determined to implement a system for the delivery of its bread and other relevant products by engaging corporate entities to undertake that activity. Each corporate entity is required to employ a driver and a merchandiser (being a person who in approximate terms is ultimately responsible for stacking the bread shelves at supermarkets and other places). Put another way, the individuals who at one stage in the history narrated within the agreed statement of facts used to be independent contractors delivering bread and undertaking the work personally are now required to personally undertake that work as employees of or in some other capacity deriving from a corporate entity owned by them or other persons associated in some way with them. What is sought by the applicant union is an award which attempts to ensure that the persons physically carrying out the work of bread delivery and merchandising of Quality Bakers' products are remunerated in a manner which is no less favourable than if those persons had been employees and whose conditions of employment and remuneration had been governed by the Quality Bakers Australia Limited (NSW) Enterprise Award 2002.

5 By agreement between the parties, Marks J confined his decision to the position of the drivers (who delivered the bread), because the factual matters which applied to the merchandisers had not been adequately explored. The same limitation pertains to this appeal.

6 The Commission's power to make awards is circumscribed by ss10 and 12 of the Act in Part 1 of Chapter 2: 10 Commission may make awards The Commission may make an award in accordance with this Act setting fair and reasonable conditions of employment for employees. 12 Persons bound by award

(1) An award is binding on all employees and employers to which it relates, whether or not they were party to the making of the award.

(2) An award that applies to a particular industry is, subject to its terms, taken to bind all employees and employers engaged in the industry.

(3) An award is, subject to its terms, binding on all industrial organisations that were a party to the making of the award.

7 Both Marks J's decision at first instance, and this appeal, hinge upon the interpretation of the definition of "employee" in the Act. The following provisions (particularly s5(1) and Schedule 1 clauses 1(e) and 3) are relevant: 5 Definition of employee

(1) General definition In this Act, employee means:

(a) a person employed in any industry, whether on salary or wages or piece-work rates, or (b) any person taken to be an employee by subsection (3). (2) A person is not prevented from being an employee only because: (a) the person is working under a contract for labour only, or substantially for labour only, or (b) the person works part-time or on a casual basis, or (c) the person is the lessee of any tools or other implements of production, or (d) the person is an outworker, or (e) the person is paid wholly or partly by commission (such as a person working in the capacity of salesperson, commercial traveller or insurance agent). (3) Deemed employees The persons described in Schedule 1 are taken to be employees for the purposes of this Act. Any person described in that Schedule as the employer of such an employee is taken to be the employer. (4) Exclusion A person employed or engaged by his or her spouse or parent is not an employee for the purposes of this Act.

Schedule 1 Persons deemed to be employees (Section 5 (3))

1 Persons to be treated as employees The following persons are taken to be employees: (a) Milk vendors Any person (not being registered as a milk vendor to sell milk or cream from a vehicle or any other conveyance) who sells or delivers for the purpose of sale milk or cream from any vehicle. (In such a case, the employer is taken to be any person whose milk or cream is so delivered or who supplies the milk or cream so delivered.)

(b) Cleaners Any person (other than the owner or occupier of the premises or a bona fide cleaning contractor employing labour for the purpose) who performs any work of cleaning premises or a part of premises for which work, if performed by an employee, a price or rate is for the time being fixed by an industrial instrument. (In such a case, the owner or, where there is an occupier other than the owner, the occupier of the premises is taken to be the employer.)

(c) Carpenters, joiners or bricklayers Any person (other than the owner or, where the owner is not occupying the building or premises, the occupier of any building or premises or a bona fide contractor employing labour for that purpose) who performs carpentry or joinery or bricklaying work upon any building or premises the erection, construction, repair, alteration or maintenance of which is being carried out under a contract between the owner or occupier and a contractor. (In such a case, the last-mentioned contractor is taken to be the employer. This provision does not apply to work of repair, alteration or addition to existing premises used as residences.)

(d) Painters Any person (other than the owner or, where the owner is not the occupier, the occupier of any building or premises or a bona fide contractor employing labour for that purpose who has entered into a contract with such owner or occupier or with a bona fide contractor who has contracted to erect, renovate, repair or maintain such building or premises) who performs the work of house or general painting. (In such a case, the owner or occupier is taken to be the employer. This provision does not apply to work of repair, alteration or addition to existing premises used as residences.)

(e) Bread vendors Any person (not being a bread manufacturer) who performs the work of delivery of bread or bread rolls on any bread round from a vehicle, conveyance or receptacle. (In such a case, the employer is taken to be the bread manufacturer who manufactured, prepared or baked the bread or bread rolls.)

(f) Outworkers in clothing trades Any person (not being the occupier of a factory) who performs outside a factory any work in the clothing trades or the manufacture of clothing products, whether directly or indirectly, for the occupier of a factory or a trader who sells clothing by wholesale or retail. (In such a case, the occupier or trader is taken to be the employer.)

(g) Timber cutter and supplier Any person (in this paragraph referred to as the contractor ) who, in response to an advertisement or other notification placed by a person (in this paragraph referred to as the principal ) requiring the delivery or supply of timber to the principal or as directed by the principal, notifies the principal in writing that the contractor will deliver or supply the whole or part of the timber and who engages in the work of cutting, delivering and supplying timber to the principal or at the principal's direction until the principal by written notice withdraws the offer to accept timber so delivered or supplied. (In such a case, the principal is taken to be the employer.)

(h) Plumber, drainer or plasterer Any person (other than the owner or, where the owner is not occupying the building or premises, the occupier of any building or premises or a bona fide contractor employing labour for that purpose) who performs the work of plumbing, draining, plastering, fibrous plaster fixing or fixing of gypsum plaster board on any building or premises the erection, construction, repair, alteration or maintenance of which is being carried out under a contract between the owner or occupier and a contractor. (In such a case, the last-mentioned contractor is taken to be the employer. This provision does not apply to work of repair, alteration or maintenance of existing premises used as residences.)

(i) Blinds fitter Any person (not being a bona fide contractor employing labour for that purpose) who, as a trade or occupation, performs the work of fitting blinds in or on a building (including the work of taking measurements for blinds, or of assembling or selling blinds, in connection with their fitting) if the blinds or component parts have been supplied to the person by the manufacturer or a distributor of the blinds or components under an agreement for their supply for the purpose of being fitted by the person in the course of his or her trade or occupation. (In such a case, the manufacturer or distributor is taken to be the employer.)

(j) Council swimming centre manager or supervisor Any person (other than an excluded person) who performs the work of managing or supervising swimming activities at a swimming centre under the care and control of a local council pursuant to a contract with the local council. (In such a case, the local council is taken to be the employer).

(k) Ready-mixed concrete driver Any person who owns or hires a vehicle and drives the vehicle when it is being used for the carriage of ready-mixed concrete (or of materials to be made into ready-mixed concrete on the vehicle) if the concrete or materials have been supplied to the person for their delivery by a manufacturer who carries on the business of manufacturing, supplying or distributing ready-mixed concrete. (In such a case, the manufacturer is taken to be the employer.)

(l) RTA lorry driver Any person (other than an excluded person) who owns a motor lorry and drives the motor lorry when it is being used for road work under a contract between the person and the Roads and Traffic Authority (or between them and others). (In such a case, the RTA is taken to be the employer.)

(m) Others prescribed by regulations Any person of a class prescribed by the regulations (whether or not of the same kind as the other classes of persons referred to in this clause). Any such regulation must specify the person who, for the purposes of this Act, is taken to be the employer of any person of a class so prescribed. 2 Definitions

(1) For the purposes of: (a) clause 1 (f): factory has the same meaning as "Factory" had in the Factories, Shops and Industries Act 1962 immediately before that definition was repealed by Schedule 2.4 [2] to the Occupational Health and Safety Act 2000 , but does not include an office, building or place (whether or not required to be registered as a factory under that Act) in which mechanical power of less than 0.75 kilowatt is used, and occupier has the same meaning as "Occupier" had in the Factories, Shops and Industries Act 1962 immediately before that definition was amended by Schedule 2.4 [3] to the Occupational Health and Safety Act 2000 ,

(b) clause 1 (g): (i) the notice of intention by the contractor to deliver or supply timber must be in the prescribed form and must indicate the nature of the work to be undertaken and the locality where and time within which the work is to be carried out,

(ii) the notice may be given personally or by letter posted to the principal at his or her place of business or usual address,

(iii) timber includes sleepers, piles, poles, girders, logs and pit timber, and cutting includes felling, sawing, obtaining, preparing and doing any related work in connection with timber. (1A) For the purposes of clause 1 (j): (a) excluded person means: (i) a bona fide contractor employing labour for the purpose of performing the work referred to in clause 1 (j), or

(ii) a person who performs that work as a partner in a bona fide partnership (whether or not employing labour for the purpose), or

(iii) an employee of any such contractor or partnership. (b) contract includes any lease, licence or arrangement.

(d) a swimming centre does not cease to be under the care and control of a local council or councils because it is managed on behalf of the council or councils by a committee appointed by the council or councils under the Local Government Act 1993 . (2) For the purposes of clause 1 (l): (a) contract includes any agreement or arrangement,

(b) motor lorry means any motor vehicle (whether or not in combination with any trailer) that is constructed principally for the conveyance of goods or merchandise or for the conveyance of any kind of materials used in any trade, business or industry, or for use in any work whatsoever other than the conveyance of persons, but does not include a motor cycle or a tractor,

(c) road work means the carriage of goods or materials for use in (or for the purpose of) the construction or maintenance of roads by or on behalf of the Roads and Traffic Authority,

(d) excluded person means: (i) a person who employs another to drive or assist in driving a motor lorry when it is being used for road work (except where the person employs another during his or her absence on holidays or long service leave or due to sickness, accident or other reasonable cause),

(ii) a person (whether or not a common carrier) who is engaged in the business of transporting for the public generally freight in containers, (e) a person owns a motor lorry if: (i) the person alone (or with others) owns the motor lorry, or

(ii) a proprietary company owns the motor lorry and the person is a director of the company or owns not less than 20 per cent of the issued shares of the company, or

(iii) the person has the use of the motor lorry under a contract,

(f) a person employs another if that other person is employed: (i) by the person alone (or with others), or

(ii) by a proprietary company and the first-mentioned person is a director of the company or owns not less than 20 per cent of the issued shares of the company,

(g) a person who has a beneficial interest in a motor lorry or shares is taken to be the owner of the motor lorry or shares,

(h) ownership or employment by any one or more members of a partnership is taken to be ownership or employment by all members of the partnership,

(i) a contract made with any one or more members of a partnership is taken to have been made with all the members of the partnership. 3 Substitution of employer (1) In any proceedings for a breach of this Act or of an industrial instrument or for the recovery of money under this Act brought against any person taken because of this Schedule to be an employer, it is a defence if the person required to be taken to be an employer joins as a party to the proceedings some other person whom he or she alleges to be the employer and proves that, apart from the operation of this Schedule, that other person was at the relevant time the employer.

(2) The other person is to have the right to appear and defend the allegation made by the person taken to be an employer and, if the other person is held to be the employer, the same orders may be made against the other person and the other person is to be in the same position as if the proceedings had been originally instituted against the other person at the time they were instituted against the person required to be taken to be the employer.

8 Sections 33 and 34(1) of the Interpretation Act 1987 provide: 33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

34 Use of extrinsic material in the interpretation of Acts and statutory rules

(1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material: (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or (b) to determine the meaning of the provision: (i) if the provision is ambiguous or obscure, or (ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.

9 In The Ombudsman v Commissioner of Police (1987) 11 NSWLR 386 at 396, Lee J held: It is true that it can be material where there is no doubt, to take into account the mischief which a statute was intended to remedy as appearing from the speeches of the Minister in charge of the Bill in the House and to take it into account in determining the operation of the general words but those speeches cannot be used to create doubt where none exists. The Interpretation Act 1987, s 34(1)(b) recognises this.

10 Where the language of a statute is not ambiguous or uncertain, the court will apply the ordinary and grammatical meaning of the words unless to do so would give the statute an operation that was obviously unintended: Mills v Meeking (1990) 169 CLR 214 at 223. See also, generally the discussion in Kingmill Australia Pty Ltd t/a Thrifty Car Rental v Federated Clerks' Union of Australia, New South Wales Branch (2001) 106 IR 217; Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Delta Electricity [2003] NSWIRComm 135 at [44] - [46]; Zoological Parks Board of New South Wales and The Australian Workers' Union, New South Wales [2004] NSWIRComm 85 at [43] - [46].

11 Finally, as a general rule, ambiguities in beneficial or remedial provisions should be interpreted in a manner favourable to the intended beneficiaries, provided that the interpretation does not strain the legislative words used: see Khoury (M&S) v Government Insurance Office of NSW (1984) 54 ALR 639 at 650. The rationale for adopting an interpretation which favours the intended beneficiary (within the confines of what is reasonably open on the words used) is even more persuasive in circumstances where the opposing party, by avoiding its legislative obligations to the intended beneficiary, actively seeks to diminish or nullify those benefits. THE DECISION AT FIRST INSTANCE

12 Quality Bakers' primary submission at first instance was that s5(3) of the Act was confined to people who were not otherwise employees at law (such as independent contractors). In this case, s5(3) did not apply to those who delivered bread, because (as both parties agreed) they were employees of the corporations Quality Bakers required them to establish.

13 The Union submitted that s5(3) could apply to people who (although employees at law) were not employees of the bread manufacturer by deeming them to be employees of the bread manufacturer. Section 5(3) also created a specific legal fiction of an employment relationship between a bread manufacturer and a person delivering bread or bread rolls. This fiction could apply, notwithstanding an alternative, factual employment relationship.

14 In rejecting Quality Bakers' submissions, Marks J held that: (a) it was abundantly clear from the Second Reading speeches to antecedent legislation that the purpose of the deemed employee provisions was to "prevent bread manufacturers from avoiding responsibilities to persons involved in the delivery of bread as employees by means of creating contracts or other arrangements"; (b) The arrangements which Quality Bakers had put into place were arguably designed to achieve the purpose the legislation sought to prevent; (c) It was a fundamental principle of construction that the Court should adopt a construction which would promote the purpose of the statue in preference to one which would defeat that purpose, provided that to do so reflected the language of the statute by applying its ordinary and grammatical meaning; (d) The Union's construction, which was within the purpose of the legislation and consistent with the language of the Act, was correct; (e) Quality Bakers' submissions did not properly take into account the significance of the second sentence in s5(3) which creates a deemed employment relationship between persons or entities not otherwise in such a relationship with each other; and (f) Complexities which may arise as a result of concurrent employment relationships (one deemed and one factual) could be dealt with in the context of appropriate award conditions. It was inappropriate to consider the potential for such complexities when determining the correct construction of s5(3) of the Act.

15 Quality Bakers sought leave to appeal on the basis that it would be in the public interest for the Full Bench to clarify the interpretation of ss5(1)(b), 5(3) and Schedule 1 of the Act and to rectify what it described as Marks J's incorrect interpretation.

16 In written submissions, the Union stated that it could not oppose the granting of leave to appeal. Mr Nolan of Counsel (who appeared on behalf of the Union) advised the Full Bench at the hearing that the question of whether leave to appeal should be granted was not seriously in issue.

17 We consider that this appeal raises matters of such importance that, in the public interest, leave to appeal should be granted.

18 In the Application for Leave to Appeal and Appeal, Quality Bakers sought a stay of proceedings below to avoid the potential incursion of unnecessary costs and waste of the Commission's time.

19 On 16 June 2004, the parties agreed to refrain from further prosecution of the first instance proceedings pending determination of the appeal. Consequently, the stay of proceedings was not pressed.

20 According to the Application for Leave to Appeal and Appeal, the following three questions are raised by the appeal: 1. Whether s5(1)(b), s5(3) and Schedule 1 of the Act are on their proper construction confined in their operation to persons who are not otherwise employees at law. 2. Whether the respondent to the appeal is entitled to make application to the Industrial Relations Commission of New South Wales under Part 1 of Chapter 2 of the Act for an award binding on the appellant relying on s5(1)(b), s5(3) and Schedule 1 of the Act in respect of persons who are employees of other corporate entities. 3. Whether the Commission has jurisdiction to make an award binding on the appellant in respect of persons who are not its employees but are employees of other companies.

21 Both Counsel agreed that the jurisdictional issue before the Commission should be approached conceptually, rather than tested against the actual form of the application below (which may be subject to any number of amendments), rendering the third ground of the appeal nugatory with respect to the award actually sought by the Union at first instance, but otherwise applicable (as a reformulation - in large measure - of the first ground). Further, Quality Bakers did not press the second ground. In the result, this appeal concerns the determination of the first ground only.

22 In summary, Quality Bakers submitted that: (a) Section 5(1) of the Act makes a clear distinction between employees and deemed employees: the use of the disjunctive "or" (instead of the term "and/or") denotes true alternatives with no overlap; (b) It does "great violence" to the section to suggest that a natural person could simultaneously have two employers and that both employers would be obliged to provide different award conditions to the same person; (c) It may be contended that the existence of Sch1 cl3 (a section concerned with concurrent factual employers and deemed employers) presupposes overlap between employees and deemed employees, which in turn presupposes dual employers. However, the legislative history of these provisions negates this contention and, in fact, requires Quality Bakers' interpretation of s5(3). (d) Schedule 1 Clause 3 is in the same terms as s88E(4) of the Industrial Arbitration Act 1940. Case law interpreted s88E(4) to refer to proceedings taken against an "alleged" deemed employer where the identification of a real employer falsified the premise upon which proceedings were commenced. Although the Commission in Court Session recommended in a report in 1970 to the Minister for Labour and Industry that the section be amended to remove doubt as to its interpretation, no amendments were made. It must be presumed that the legislature re-enacted the provision in the light of the existing interpretation. (e) Neither the Industrial Relations Act 1991 nor the Act were intended to affect the operation of the deemed employee provisions from the Industrial Arbitration Act 1940. Although the qualification in s88E(1) of the 1940 Act and in s5 of the 1991 Act (to exclude "persons who were otherwise employed" from being deemed employees) was omitted from the Act, there was no parliamentary intention to expand the scope of the provision. (f) Jurisdiction to make the proposed award binding Quality Bakers would be anomalous because, in any action for breach, Quality Bakers would have a conclusive defence under Sch1 cl3 by proving the real employer. This defence is enlivened by identification of the real common law employer and does not depend on the existence or terms of any award.

23 In summary, the Union submitted that: (a) Marks J correctly characterised the provision as being designed "to prevent bread manufacturers from avoiding responsibilities to persons involved in the delivery of bread as employees by means of creating contracts or other arrangements"; (b) Marks J's construction achieved the purpose of the legislation without straining the ordinary meaning of the language. The legal fiction of deemed employment was not created in a vacuum: it is a deemed employment relationship between a bread manufacturer and a person who delivers the manufacturer's bread; (c) The legislation, as remedial legislation, should not be construed in a manner which would permit its easy avoidance; (d) There was no error in his Honour's treatment of the legislative history; (e) The concurrence of two awards does not preclude jurisdiction. It would not be exceptional for an award to be tailored to particular circumstances, and to operate to the exclusion of any other award which might apply; (f) Quality Bakers were wrong to argue that Marks J's interpretation of s5(1) was anomalous with Sch1 cl3. It would be incongruous for the broad, general grant of power to make awards in ss5 and 10 of the Act to be confined by a possible defence in limited circumstances where a prosecution is mounted relying upon the deeming provisions to enforce a general common rule award. (g) Schedule 1 Clause 3 addresses the limited circumstance where the industrial instrument in question would apply both to the deemed employer and an employer at common law: sub-section (2) provides that, as a result of a defence under sub-section (1), the "other person" (viz, the employer at common law) would be in the same position, in the same proceedings, as the deemed employer and would face the same orders. In the present case, no proceedings under the award envisaged could be taken against the "corporation employer" because the award would have specific application and operation. Hence, the "other person" could not be in the same position in the same proceedings as Quality Bakers and Sch1 cl3 would not apply.

24 We shall commence by an examination of the ordinary meaning to be attributed to s5(1) of the Act. In this case, the ordinary meaning of the provision hinges upon the meaning of the word "or" .

25 There is no doubt that the disjunctive conjunction "or" separates alternatives: this is the hallmark of its dictionary definition. However, we reject the submission of Quality Bakers that such alternatives are necessarily mutually exclusive. Counsel for Quality Bakers did not refer to any definition of "or" in support of this contention, nor could we find one.

26 The definitions in the Macquarie Dictionary (Third edition) and the Oxford English Dictionary (Second edition) countenance no such restriction. In fact the Oxford English Dictionary describes many varieties of alternatives separated by "or": Macquarie Dictionary A particle used: 1. to connect words, phrases, or clauses representing alternatives: to be or not to be. 2. to connect alternative terms: the Hawaiian or Sandwich Islands. Oxford English Dictionary A particle co-ordinating two (or more) words, phrases or clauses between which there is an alternative. ... Things so co-ordinated may differ in nature, or quality, or merely in quantity, in which case the one may include the other, as in "it will cost a pound or thirty shillings", "two or three minutes", "a word or two". The second member may also express a correction or modification of the first, which may be strengthened by expanding or to or even , or rather, or at least .

27 Far from being mutually exclusive, it is clear that one alternative may include the other, or express some correction or modification of the other, as in this case where the first alternative is extended by the second. It is not difficult to think of other examples using the same ordinary meaning of "or", such as "this university accepts wealthy or intelligent students".

28 Nor do we accept the submissions of Quality Bakers that the operation of Sch1 compels a restriction on the ordinary meaning of the words in s5(1). It is trite that the Act must be read as a whole in such a way that different sections fit with one another: see for example Metropolitan Gas Co v Federated Gas Employees' Industrial Union (1924) 35 CLR 449 at 455 and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490 at 509. However, this principle of interpretation undermines Quality Bakers' submission rather than supporting it.

29 Clause 2(1A)(a)(iii) of Schedule 1 specifically excludes a selected group of employees from being the deemed employees of another employer. Such an exclusion would be superfluous if Quality Bakers' interpretation of s5(1) was correct.

30 Further, cl1(e) compels the very result Quality Bakers seeks to avoid. Quality Bakers did not dispute (nor could they) that the workers at the centre of these proceedings (the drivers who delivered the bread) met the description of "any person (not being a bread manufacturer) who performs the work of delivery of bread or bread rolls on any bread round from a vehicle, conveyance or receptacle". The second half of Sch1 cl1(e) then provides: "In such a case, the employer is taken to be the bread manufacturer who manufactured, prepared, or baked the bread or bread rolls" - in this case, Quality Bakers. We can see nothing in the Act to controvert the natural operation of such an unambiguous clause or to justify reading it down. Similarly, the operation of cl3 (discussed below) militates against a restrictive interpretation.

31 The competing submissions in relation to Clause 3 of Schedule 1 must be considered in a conceptual light, following the agreement of both Counsel (with which we agree) that this matter should not be determined by reference to the actual form of the application below, fluid as it may be.

32 If proceedings are brought against a deemed employer and the deemed employer alleges that at the relevant time another person was the employer, Clause 3 of Schedule 1 facilitates a procedure for the matter to be argued before the Commission, determined, and (should the deemed employer succeed) for the other person to be substituted as defendant into the original proceedings. It is a procedure for avoiding precisely the type of conflicts suggested by Quality Bakers in its submissions regarding dual employers and dual awards (where such conflicts are not obviated by drafting in the manner suggested by the Union), and it is a procedure which presupposes the co-existence of a deemed employer and another employer. The potential availability of a defence does not negate the original deemed employment relationship: it merely offers the prospect of alleviation of the consequences. This procedure involves so many variables, and is capable of so many permutations, that we simply cannot accept Quality Bakers' submission that it would always have a defence (by pointing to the corporate entity it had required its drivers to establish) and that the Union's interpretation was consequently anomalous.

33 To begin with, the relevant proceedings may be for breach of the Act, or of an industrial instrument, encompassing any manner of awards, enterprise agreements or contract determinations between any number of parties. Even if we accepted Quality Bakers' assertion of a perennial defence (which we do not), the circumstances of two parties at a given time in relation to one proposed award cannot determine the interpretation of a section of the Act for all parties for all time in relation to all proceedings, particularly when such an interpretation is contrary to the section's ordinary meaning and disruptive of the Act's internal consistency. The very fact that the procedure established by cl3 anticipates determination of whether or not another person was the employer at the relevant time means that the outcome is not a foregone conclusion and may raise complex issues.

34 Even in the present case of Quality Bakers and the Union, it would be inappropriate to speculate, given the uncertainties as to the proposed award; potential breaches which may give rise to proceedings; and the manner in which the relationship between Quality Bakers, the drivers, and the corporate entities would work in practice and how this would bear on the question of whether the corporate entity was the employer in the context of the proceedings into which they may be substituted. The references in Schedule 1 excluding "bona fide" contractors, in conjunction with the clear purpose of the provisions (discussed below), and developing law on the rationale for lifting or piercing the corporate veil which may have analogous application to an assessment of the "real" employer (see in particular Idoport Pty Limited and Anor v National Australia Bank Limited and Ors, National Australia Bank Limited v OAMPS Limited and Ors [2004] NSWSC 695 (13 August 2004) at [144] and Re Bugle Press Ltd [1961] Ch 270, which illustrates that the corporate veil may be lifted in response to some clearly discernable policy of a particular law) may bear significantly on these matters if and when they come before the Commission.

35 Finally, as Mr Nolan submitted, Sch1 cl3 addresses the limited circumstances where the industrial instrument in question applies to both the deemed employer and the employer in common law. In this case, it is to be anticipated that the proposed award would be drafted in such a way as to avoid dual application of that kind.

36 Having rejected Quality Bakers' submissions based on the literal interpretation of the Act, we come to consider its purpose. The history of the legislative device of "deemed employees", used in New South Wales since 1936, is the history of the legislature using "deemed employment" to give various classes of persons the protection of the industrial laws in an effort to prevent abuses in various industries. Hence "tenants" of a chair or part of a hairdresser's shop were deemed to be employees of the "landlord"; "bailees" of taxis were deemed to be employees of the "bailor"; and "contractors" were deemed to be employees of "principals".

37 As foreshadowed, having examined the Second Reading speech of the Honourable A Landa, Minister for Housing, we agree with Marks J that the clear purpose of the deemed employee provisions in the Act was to prevent bread manufacturers (among others) from avoiding responsibilities to workers involved in the delivery of bread as employees by means of creating contracts or other arrangements. We also agree with Marks J that the arrangements which Quality Bakers had put into place were arguably designed to achieve the purpose the legislation sought to prevent. Not only does the Union's interpretation conform to the ordinary meaning of the text, it also promotes the purpose of the provision, and as such must be accepted pursuant to s33 of the Interpretation Act 1987.

38 It remains to consider Quality Bakers' submissions based upon the "re-enactment" rule of interpretation which is usually stated thus: where certain words in an Act have received judicial construction in a superior court and the legislature has repeated them without alteration in a subsequent statute, the legislature must be taken to have used them according to the court's construction.

39 We do not consider that the case law interpreting s88E(1) and the contingent s88E(4) of the Industrial Arbitration Act 1940 provides any assistance, in view of the fact that s88E(1) and the subsequent s5(5) of the 1991 Act specifically enact the exclusion contended by Quality Bakers: s88E(1) The following persons, if not otherwise employees employed to do the work hereinafter referred to, shall, for the purposes of this Act be deemed to be employees. ... s5(5) The persons described in Schedule 1, if not otherwise employees employed to-do the work referred to in that Schedule , are, for the purposes of this Act, taken to be employees ... [Emphasis added]. and given that this specific exclusion was omitted in the next version, s5(1) of the present Act.

40 The fact that the express exclusion was omitted in s5(1) of the Act, is, in our view, fatal to Quality Bakers' reliance upon the re-enactment rule. One of the premises of the rule is the repetition of judicially constructed words without alteration. Nothing in Re Alcan Australia Ltd; Ex Parte Federation of Industrial Manufacturing and Engineering Employees (1994) 181 CLR 96 or Electrolux Home Products v AWU [2004] HCA 40 (2 September 2004) alleviates this fundamental flaw in Quality Bakers' submission. Further, we note that notwithstanding the special circumstances in Re Alcan Australia Ltd and Electrolux Home Products, the general operation of the rule has been questioned on several occasions by the High Court: see Salvation Army (Vic) Property Trust v Fern Tree Gully Corp (1952) 85 CLR 159, R v Reynhoudt (1962) 107 CLR 381, and Flaherty v Girgis (1987) 71 ALR 1 at 14.

41 Mr Buchanan submitted that the words "if not otherwise employees" were omitted as mere surplusage and that there was no parliamentary intention to expand the scope of "deemed employees" (despite the absence of a qualification) and based this contention upon the fact that the explanatory notes for the Industrial Relations Bill 1996 neglect to mention this as a change. However, the explanatory notes could not record every change, and it would be dangerous indeed to infer parliamentary intention on this basis - insupportable in a case such as this when the result would conflict with the ordinary meaning of the provision; the internal consistency of the Act; and the unequivocal purpose of the Act expressed in the Minister's Second Reading speech.

42 Quality Bakers also sought to support its contention by reference to the following explanatory note in relation to Sch1: Schedule 1 continues existing provisions that deem certain persons to be employees. The provisions continue similar provisions in the 1991 Act.

43 We do not accept this contention for three reasons: first, s5(1), which falls to be interpreted, is not attended by any such explanatory note; secondly, there is no conflict between the Union's interpretation and the note that existing deeming provisions in the schedule continue (it was always anticipated that the "certain persons" would change from time to time: see cl(1)(m)); and thirdly, the very use of the word "similar" anticipates some difference.

44 Finally, we should state that even if we had found merit in Quality Bakers' submissions based on the principle of re-enactment, we would not have accepted an alternative construction, as to do so would have been to prefer a construction which does not further the purpose of the provisions, in lieu of one which does, contrary to s33 of the Interpretation Act 1987.

45 In summary, by virtue of the operation of ss5(1), 10, 12, and Sch1 cl1(e), we answer the first question raised by the appeal in the negative and the third question in the affirmative (with respect to those persons engaged by corporations with whom Quality Bakers has contracted for the delivery of bread in the manner described in Sch 1 cl1(e) and as described by the parties in their statement of agreed facts). In the circumstances we do not consider that his Honour Marks J was in error. The appeal must therefore fail. ORDERS 46 We make the following orders: (1) Leave to appeal is granted. (2) The appeal is dismissed.

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