R v Duncan; Ex parte Australian Iron & Steel Pty Ltd - [1983] HCA 29 - HCA 1982 case summary — Zoe

CTHHCA

R v Duncan; Ex parte Australian Iron & Steel Pty Ltd

[1983] HCA 29

High Court of Australia|1982-10-27|Before: Dawson JJ

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Source facts

Court

High Court of Australia

Decision date

1982-10-27

Before

Dawson JJ

Source

Original judgment source is linked above.

Judgment (69 paragraphs)

[1]

The application named "The New South Wales Coal Association, The Queensland Coal Owners' Association and Cornwall Coal Co., Tasmania and others" as parties. The nominated respondents were notified of the application on 25 October. Both matters were listed for hearing on 27 October, two days before the date specified by AIS in their letters of dismissal as the day on which the employees' services were to be terminated. On 27 October the Deputies' Association also made an application for the insertion of a similar clause in its award. On that day, the Tribunal heard submissions from the parties and made an order and a recommendation. Mr. Duncan, being satisfied that the application by the Deputies' Association raised an "industrial matter" ordered AIS "to extend the notice of or in the alternative reinstate in its employment members of the [Deputies' Association] currently under notice for a period expiring on Friday, 12 November 1982 and for the purpose only of completion of proceedings currently before me". He did not make an order with respect to members of the federal organizations, but he did make a recommendation. Objection had been taken to the Tribunal's jurisdiction to make an order on the application of those organizations and the objection had not been finally determined by the Tribunal on 27 October. Accordingly the Tribunal made recommendations, inter alia, that the employment of AIS employees to whom notices had been given should be extended by a fortnight expiring on 12 November and that the application for the new retrenchment and redundancy clause pending before the Tribunal be proceeded with urgently. The matter was adjourned to 29 October to enable the parties to consider the order and recommendations.

[2]

[23]

AIS submits that it is beyond the powers of the Commonwealth Parliament to authorize the making of an arrangement for the constitution of a tribunal and for the appointement of a person to constitute a tribunal that is to have and to exercise both federal and State powers. The objection is not so much to the mode of creation and appointment of the Tribunal but rather to the hybrid nature which the submission attributes to the Tribunal. It is of course beyond the power of the Commonwealth Parliament to vest the Tribunal with State power, but that is not what the Commonwealth Act does. The Act approves the Tribunal's having and exercising State powers but it does not purport to vest them. It vests only federal powers (s. 32(2)). If the Act had merely constituted or authorized the constitution of a tribunal and had vested federal powers of conciliation and arbitration in it without reference to State powers, an attempt by a State Act to vest similar State powers in the same tribunal would fail - not because of a constitutional incapacity in a Commonwealth tribunal to have and to exercise State power, but because the Commonwealth Act would be construed as requiring the tribunal to have and to exercise only such powers as the Commonwealth Parliament had chosen to vest in it. If the Commonwealth Act were construed as not permitting the tribunal to be a repository of State power, it would prevail over the State Act by reason of the inconsistency between them. But the Commonwealth Act permits the State Act to repose State powers in the Tribunal. The Commonwealth Parliament, having power to create the Tribunal and vest federal powers of conciliation and arbitration in it, is not bound to refuse permission for the reposing of similar State powers in the Tribunal. Indeed, the object of preventing and settling interstate industrial disputes in the coal industry may be better achieved by permitting the Tribunal to have and to exercise similar powers conferred upon it by a State Act. Section 32(1) permits the Tribunal to have and to exercise State powers to the extent specified in that part of the Act; it does no more. Section 32(2) is the only provision which vests powers in the Tribunal and it does not purport to vest State powers. It is within the competence of the Commonwealth Parliament to permit such a tribunal to have and to exercise State powers where the vesting and exercise of State is conducive to or consistent with the achievement of the object which the vesting and exercise of federal powers is intended to achieve. It is no argument against the validity or efficacy of co-operative legislation that its object could not be achieved or could not be achieved so fully by the Commonwealth alone. In Deputy Federal Commissioner of Taxation (N.S.W.) v. W. R. Moran Pty. Ltd. [43] , Starke J. said:

[33]

In the absence of an intention that an award or order made by the Tribunal in exercise of federal power should be an exhaustive determination of an industrial matter, there is no inconsistency, for the purposes of s. 109 of the Constitution, between the Commonwealth Act and its intended operation upon awards made by the Tribunal under federal power on the one hand and the State Act on the other (cf. Ex parte McLean [46] , and Reg. v. Winneke; Ex parte Gallagher [47] ). As s. 32(1) of the Commonwealth Act and s. 38(1) of the State Act express a common intention that the Tribunal should have powers derived from the State as well as from the Commonwealth and should be at liberty to exercise powers derived from both sources, there is no inconsistency between the law of the Commonwealth and the law of the State upon which s. 109 may fasten to destroy or limit the operation of that co-operative legislative scheme which vests both sets of powers in the Tribunal. The Tribunal may (subject to s. 34(7) of the Commonwealth Act) exercise the two sets of powers concurrently to determine industrial matters, and the awards and orders of the Tribunal (if made within either set of powers) have among themselves the priority and effect that the Tribunal intends them to have, irrespective of the source of the power to make particular awards or orders. However, to permit the Tribunal to exercise State powers with respect to a given subject-matter after the exercise of federal power with respect to the same matter, s. 32(2) of the Commonwealth Act must be taken to confer upon the Tribunal federal power to permit an award or order made in exercise of federal power to be superseded though the new provision which supersedes the old is made in exercise of State power. And so, an award made by the Tribunal in exercise of federal power (or in exercise of both federal and State powers) may be varied in its application to particular parties in a State by a subsequent award or order made in determination of a State industrial matter.

[36]

Next, it is submitted that, upon the facts of the case and upon the true construction of the respective Acts, the Tribunal had no power to make the orders that it did on 27 and 29 October and 12 November. The starting point is the jurisdiction to determine the matter of the application for a new award clause governing retrenchment of employees and the benefits payable to employees on retrenchment. That application was or was likely to be in dispute between the applicant unions and the several respondents in New South Wales, Queensland and Tasmania. It may be that there was federal jurisdiction to determine the application, but it was not necessary for the Tribunal when it came to make the interim orders now under attack to inquire into the foundation for the exercise of federal power to insert the new clause in the award. At the times material to the subject proceedings, the dispute focussed upon the employees in New South Wales who had been served by AIS with notices of dismissal. The benefits of the proposed new award clause were sought to protect that class of employees, and AIS disputed the claim. If the claim so made by or on behalf of that class of employees was an "industrial matter", the Tribunal was authorized by the State Act to determine it. The Tribunal may well have had federal power also to determine the dispute as to that matter by way of arbitration for the settlement of that dispute. Though there was a fissure separating the Tribunal's federal powers from its State powers there was no crevice between those powers into which the matter then in dispute might have fallen. The relevant questions for the Tribunal were whether the aggregate of its statutory powers as defined in s. 34(1) of the Commonwealth Act and s. 40(1) of the State Act authorized it to determine the matter of the claim for the new award clause to be applied to the employees who had received notices of dismissal and, if so, whether those powers authorized the Tribunal to make the interim orders which it did.

[38]

However, AIS submits that even if the Tribunal had power to determine that dispute, it had no power to make the impugned interim orders pending the making of a final determination. Those orders were made when AIS was insisting upon its right to dismiss the employees on 29 October, the date specified in the letters of dismissal, or later when AIS was contending that the letters of dismissal had taken effect according to their tenor. The letters had specified a period of notice which complied with the relevant awards as they then stood, and AIS was relying upon its common law right to dismiss. But the claim made by the employees or by the unions on their behalf sought to secure for the benefit of those employees a modification of the common law right to dismiss in accordance with the application for the new award clause. Consequently there was a dispute as to the right of AIS "to dismiss a particular class of persons", namely, those to whom notice of dismissal had been given. The orders of 27 and 29 October and 12 November each purported to restrict the right to dismiss the employees to whom notice of dismissal had been given by extending the time before dismissal. Whatever may be said as to the form of each order, its substance is clear beyond mistake: the Tribunal determined that the right to dismiss should not be exercised before the times specified in the respective orders expired. The periods of notice specified by the respective orders fell short of the three months sought by the unions' application, but the orders extended the period of notice beyond the four weeks' notice which AIS had given in the letters of dismissal. The orders thus determined part of the industrial matter in dispute in so far as it involved the particular class of employees, and the Tribunal had power so to determine. The common law right of dismissal was modified by the respective orders made in respect of the particular class of employees (cf. Kilminster v. Sun Newspapers Ltd. [48] ). It is not necessary to consider whether a purported dismissal by AIS of employees on 29 October or on a later date before the expiry of a period specified in an interim order would have been effective though unlawful or wholly ineffective in respect of those employees who were protected by the interim order. A similar question was discussed, though in a different statutory context, in Automatic Fire Sprinklers Pty. Ltd. v. Watson [49] . The effect of a valid order upon a contract of service is not now in issue. The validity of the impugned interim orders does not turn upon the way in which they modified the common law right to dismiss - either by suspending it for a specified period or by making its exercise illegal during that period.

[64]

It has not been suggested that either the Commonwealth Constitution or the New South Wales Constitution contains any express or implied prohibition upon legislative power which is relevant for the purposes of the present application or that there is any applicable limitation upon the powers of the State Parliament resulting from outmoded doctrines appropriate to times that are gone. The power of the Commonwealth Parliament to make laws for the peace, order, and good government of the Commonwealth with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State (s. 51(xxxv)) and with respect to matters incidental to the execution of that power (s. 51(xxxix)) sufficed to enable the Commonwealth Parliament to legislate to authorize the Governor-General to enter into the arrangement for the establishment of a tribunal which would be capable of receiving and exercising the particular powers conferred upon it by the Act and the related powers conferred upon it by the concurrent State Act. In that regard, it would seem that in present day circumstances, where modern communications and the common involvement of national organizations of employees or employers make escalation of a local dispute into an interstate dispute far more likely than in the early days of the Commonwealth, the reference to prevention in s. 51(xxxv) has become more important, as a source of legislative power, than the reference to "settlement". For its part, the New South Wales Parliament plainly possessed legislative powers adequate to enable the enactment of the provisions of the State Act. Nor, in the light of the underlying constitutional objective of co-operation between Parliaments, is there any valid constitutional ground for refusing to give to the two Acts their full combined operation and effect. In the absence of any constitutional prohibition and of any lacuna in combined legislative competence, that operation and effect is to confer upon the Tribunal power to consider and determine industrial disputes and industrial matters of the relevant type regardless of whether they be confined to New South Wales or extend within and beyond that State. Provided it is acting in the course of considering and determining a relevant "industrial dispute" or "industrial matter" and subject to the under-mentioned qualification, it is unnecessary for the Tribunal to seek to identify or isolate the precise source of the power it is exercising. In particular, if the Tribunal, in exericsing a power which is primarily to be seen as conferred upon it by the State Act, makes an order or award which varies an award previously made by the Tribunal in the exercise of power conferred upon it either by the Act alone or by the combined operation of the Act and the State Act, no question of inconsistency between a law of the Commonwealth and a law of the State arises. The reason for that is that the power to vary and thereby partially repeal such an award in the exercise, for example, of the authority primarily conferred by the State Act to consider and determine a purely intrastate "industrial dispute" is conferred upon the Tribunal by the Act when it confers, to the extent of Commonwealth power, authority to consider and determine such an "industrial dispute". It is not a case merely of the Commonwealth indicating a negative intention not to cover the field. It is a case of positive provision having the effect that the Tribunal is, in the exercise of powers conferred by the State Parliament, vested with ancillary powers which the Commonwealth Parliament could alone confer.

[65]

The qualification which needs to be made to the general statement that it is unnecessary for the Tribunal to seek to identify the source of the powers which it is exercising results from the differences between the respective provisions of the two Acts dealing with the nature and content of the Tribunal's supplementary powers and the enforcement of the Tribunal's awards or orders. In exercising powers which are conferred by the Act, the Tribunal is vested with the powers which are given by the Conciliation and Arbitration Act 1904 Cth to the Commonwealth Conciliation and Arbitration Commission or to a member thereof (Act, s. 34(1A)); in exercising powers which are conferred by the State Act, the Tribunal is vested with the powers conferred upon the Industrial Commission of New South Wales in relation to an industrial dispute of which that Commission has jurisdiction (State Act, s. 40(1A)). An order or award which is made in pursuance of the Act takes effect and may be enforced as if it were an award of the Commonwealth Conciliation and Arbitration Commission (Act, s. 36); an order or award which is made in pursuance of the State Act shall, when filed in the Industrial Commission of New South Wales, "have effect in all respects and be enforceable" as if it were an award or order of that Commission (State Act, s. 42(1)). Where the supplementary powers conferred by the two Acts differ in relevant respects or where enforcement provisions or proceedings are involved, it may be necessary to identify the source of the particular powers which the Tribunal is exercising or has exercised in making a particular award or order. In a case where the award or order is not being or was not made in the exercise of concurrent or composite powers derived from both Acts with the result that both sets of supplementary powers and enforcement procedures are prima facie available and applicable, it may be necessary to identify the source of jurisdiction in order to determine the nature and scope of available supplementary powers or the identity of the appropriate enforcement procedures. In a case where an award or order is being made or was made in the exercise of concurrent or composite powers derived from both Acts, it may be that, within particular areas such as the availability of enforcement procedures, questions of inconsistency may arise. The divergence between the two Acts as regards supplementary powers and enforcement of awards and orders may be productive of inconvenience and difficulty in particular cases. Overall however, the circumstances in which the Tribunal will itself be concerned to identify the source of powers will be rare since the Tribunal will not itself ordinarily be concerned with enforcement procedures and the differences between the supplementary powers conferred by the two Acts are not such as to make it likely that they will ordinarily be significant.