R v Holmes, Ex parte Public Service Association of New South Wales

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

CORAM: WALTON J, Vice-President BOLAND J McKENNA C 26 July 2001

CAMPBELLS CASH AND CARRY PTY LIMITED AND NATIONAL UNION OF WORKERS, NEW SOUTH WALES BRANCH.

Application for leave to appeal and to appeal against ex tempore judgment of Justice Wright, President and decision of Justice Maidment given on 9.3.2001 and 4.12.2000 in Matter No. IRC 1384 OF 2000.

DECISION OF THE COMMISSION [2001] NSWIRComm 163

1 On 25 June 2001, the Full Bench heard applications for leave to appeal and, if leave be granted, appeal by Campbells Cash and Carry Pty Limited ("the appellant") against a decision of Wright J, President given on 9 March 2001 in Storeworkers - Campbells Cash & Carry Pty Limited (NSW), NUW (NSW Branch) Award 2000 (No 2) [2001] NSWIRComm 53 and against a decision of Maidment J given on 4 December 2000 in Storeworkers - Campbells Cash & Carry Pty Limited (NSW), NUW (NSW Branch) Award 2000 [2000] NSWIRComm 244. 2 Having considered the parties' submissions, the Full Bench that day announced its decision to refuse leave to appeal, except with respect to a jurisdictional issue, namely whether the Commission has jurisdiction to make an award concerning the authorised remittance by employers of membership fees of industrial organisations of employees. Background 3 The application, which was initially before Maidment J and, consequently upon the reconstitution of the Commission, before Wright J, concerned an application for an award by the National Union of Workers, New South Wales Branch ("the Union"). The background to the application for an award, and the proceedings before the Commission, is detailed in the decision of Walton J, Vice-President in Campbells Cash and Carry Pty Limited and National Union of Workers, New South Wales Branch [2001] NSWIRComm 79, as to an application made by the appellant for a stay of that part of the award made by Wright J which concerned the deduction and remittance of union dues. 4 It is unnecessary for the purposes of consideration of the issue of jurisdiction to again traverse in this decision such background matters. Relevantly, however, Wright J determined to insert in an award titled Storeworkers - Campbells Cash & Carry Pty Limited (NSW), NUW (NSW Branch) Award 2000 ("the Award") a clause requiring the authorised remittance by the appellant of membership fees to the Union. Consistent with the conclusions given by Wright J, the Award clause in question would read as follows: 35 UNION RECOGNITION Campbells shall, upon authorisation, deduct Union membership dues, as levied by the Union in accordance with its rules, from the pay of employees who are members thereof. Such monies will be forwarded to the Union at the end of each accounting period with all necessary information to enable the reconciliation and crediting of subscription to members' accounts.

Submissions 5 Mr G J Hatcher of counsel, who appeared for the appellant, submitted that there is no jurisdiction to give effect to an award clause concerning authorised remittance of union dues. Mr Hatcher's submissions were conveniently summarised in the appellant's outline of submissions, as follows: 16. Ultimately, the case proceeded with only one issue, the question of deductions from pay on behalf of the union, being necessary for the President to determine.

17. His Honour, the President determined that the Industrial Relations Act 1996 at s.6(2) is to be interpreted as if the word "Example" were the word "includes". … 20. The appellant wishes to argue that his Honour, the President, impermissibly extended the operation of s.6 of the Act by extending the word Example to mean Include. Whilst his Honour the President may not have been attracted to this argument, it surely must be available to argue that words mean what they say. Whilst his Honour inclined to the view that the legislature clearly intended that deduction of union dues should be an industrial matters, it might equally be contended that the Legislature, by using the word "example" rather than "includes" evinced an intention not to extend he definition of industrial matter.

21. If the argument be available, then it is one of some significance. There has only been one award made requiring deduction of union dues, and in that case there was no consideration of jurisdiction.

6 Mr Hatcher's submissions as to the lack of a proper jurisdictional basis for the Commission to effect an award clause concerning the authorised remittance of union dues were elaborated during appeal, particularly by reference to the decision in Re Alcan Australia Limited and Others; ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96. In that case, the High Court held that a union's demand on an employer to implement arrangements for the authorised remittance of union dues did not give rise to an industrial dispute as defined in s4 of the Industrial Relations Act 1988 (Cth). Considered in the context of the decision in Alcan, Mr Hatcher submitted that the authorised remittance of union dues did not fall within the definition of "industrial matters" for the purposes of s6(1) of the Industrial Relations Act 1996 ("the Act"). Mr Hatcher conceded that the words appearing in s6(2)(i) were wide enough to encompass the terms of the award clause concerning union dues which was made by Wright J. He submitted, however, that the Act specified the authorised remittance of union dues only as an "example" of an industrial matter. Further, he submitted that s6(2) of the Act did not extend the definition of industrial matters to include that subject matter, notwithstanding the provisions of s6(2)(i). In so specifying, the Act did not effectively provide that the authorised remittance of union dues was an industrial matter, notwithstanding the presumed legislative intention. The word "examples", it was submitted, could not be read as meaning "includes". 7 The Hon. J W Shaw QC, who appeared for the Union, adopted the reasoning in the decision of Wright J at [19] as to the effect of s6 of the Act. Mr Shaw submitted also that the word "examples" in s6(2)(i) of the Act evinces a clear legislative intention that the general definition of "industrial matters" in the Act is intended to comprehend the authorised remittance of union membership dues. The use of the word "examples" is a contemporary drafting device for ensuring that the specified classes of examples are within the general definition of industrial matters. The word "examples" may have been used to avoid the ambiguity that sometimes is associated with the use of the word "includes" in legislative definitions. 8 Mr Shaw submitted the New South Wales Parliament had clear and undoubted authority to enact legislation such that, contrary to the decision in Alcan, the authorised remittance of union fees was an industrial matter. In construing s6 of the Act, it is appropriate for the Full Bench to adopt a contemporary approach to construction, namely the purposive approach. Consideration 9 We have decided, with some reluctance, to grant leave to appeal with respect to the jurisdictional issue in this matter. We have done so on the basis that the jurisdictional issue raises matters of general importance although the ground of appeal is, of itself, relatively weak. 10 We note that the mere agitation of issues described as jurisdictional in character will not necessarily warrant the grant of leave to appeal, particularly where a sufficiently arguable case in relation to jurisdiction has not been demonstrated. 11 As mentioned earlier in the decision, we refused leave to appeal as to non-jurisdictional issues raised upon the appeal. In accordance with the convention of Full Benches of the Commission in appeal proceedings, we did not give reasons for that decision. We would observe, however, that much of the non-jurisdictional issues raised by the appellant depended for their efficacy upon an interpretation of the legal effect of the former clause of an enterprise agreement as to the deduction of union fees. It was reasonably open, in our view, to conclude that the relevant provisions of that enterprise agreement had legal effect. 12 We turn then to the jurisdictional issue. 13 Section 6 of Act is in the following terms: 6 Definition of industrial matters

In this Act, industrial matters means matters or things affecting or relating to work done or to be done in any industry, or the privileges, right, duties or obligation of employers or employees in any industry.

(a) the employment of persons in any industry (including the employment of minors, trainees, apprentices and other classes of employees),

(b) the remuneration (including rates of pay, rates for piece-work and allowances) for employees in any industry,

(c) the conditions of employment in any industry, including hours of employment, qualifications of employees, manner of work and quantity of work to be done),

(d) part-time or casual employment (including part-time work agreements),

(e) the termination of employment of (or refusal to employ) any person or class of persons in any industry,

(f) discrimination in employment in any industry (including in remuneration or other conditions of employment) on a ground to which the Anti-Discrimination Act 1977 applies,

(g) procedures for the resolution of industrial disputes,

(i) the authorised remittance by employers of membership fees of industrial organisations of employees,

(j) the surveillance of employees in the workplace. 14 Wright J considered the issue raised by the appellant as to jurisdiction at first instance as follows: [15] In the light of that summary of the background to the proceedings today and the summary of the submissions and the differences between the parties, it is possible to deal shortly with the issues requiring determination.

[16] I should refer to the situation that, so far as I am aware, there is only one decision of the Commission in relation to the issue raised in this matter. It is the decision of Murphy C in Metalliferous Mining Industry (State) Award - Application by the Australian Workers' Union, New South Wales Branch, for variation re Clause 5 Contributions (unreported, 29 October 1999). It does not appear that the issues that are before me were determined in that case because of the way in which the matter was argued and the application, although successful, was decided in the light of the very particular facts of the case. Further, as earlier indicated, the role of the Commission as now constituted is to implement his Honour's decision and the issue to be determined does not necessarily raise matters of the kind considered by Murphy C.

[17] It is nevertheless necessary to decide whether the Commission has jurisdiction to award the provision sought. I consider that the Commission does have the necessary jurisdiction. The effect of the submissions of the respondents would be to give no meaning to the words in s 6(2)(i) of the Act. That would be a remarkable and therefore entirely unlikely result. It is trite that "words are not lightly discarded as unintended verbiage": see, for example, the judgment of Moore J sitting in the Industrial Relations Court of Australia in Western Newspapers Pty Limited v Warren (1994) 1 IRCR 393 at 410, (1994) 56 IR 340 at 356 - 357, and the decision of a Full Bench of this Commission in Re Hospital Employees Conditions of Employment (State) Award (1999) 96 IR 245 at 257. As the judgment of Moore J indicates, that approach is relevant, whether the verbiage is to be found in a statute or in a contract. His Honour also observed the role of a Court or tribunal in the construction of a document "involves a search for what the framers of the document meant by the words adopted".

[18] I consider that it is clear that Parliament intended that the Commission was to have relevant power as to this subject matter. I also consider that the statement by Moore J represents a stronger presumption when a statute is being considered than when other documents such as contracts or deeds are in issue. Section 6 of the Industrial Relations Act 1996 is to be read with the conferral of power in the Commission by s 10 to make Awards setting conditions of employment as defined by s 4 and the Dictionary to the Act as including "any provisions as to an industrial matter". Section 6 is in these terms: …

[19] I consider that the legislature in enacting s 6 intended, by the structure of the section, to provide a general definition in sub-section (1) but to include in sub-section (2), by reference to "examples of industrial matters", matters which fell within that description either by elaboration of the general words in sub-section (1) or by an extension of those words. That is, the legislature, although using the word "examples", approached the matter in a way which might have earlier occurred by use of the word "includes". The usual construction of the word "includes" or the word "including" is that it is intended to be read as a word of extension (compare R v Holmes; Ex parte Public Service Association of New South Wales (1977) 140 CLR 63 at 72 - 73) but that does not necessarily mean that all of the areas or concepts following the use of the word "includes" must involve an extension in meaning. Some of the relevant words may be mere examples. However, the usual approach adopted when the word "includes", or one of its variants, is used, is that amongst the words following it are words which extend the meaning of the term or terms defined.

[20] That is the way in which the sub-section 6(2) should be interpreted. … 15 In our opinion, the conclusions by Wright J concerning the construction of s6 of the Act are correct. We adopt also his reasons thereto. As to the matters otherwise addressed in the parties' submissions on the appeal, we would add only the following. 16 First, the decision in Alcan held that the deduction of union dues was not an industrial matter within the meaning of a federal statute. It is nonetheless clear, as Mr Shaw submitted, that the New South Wales Parliament may enact provisions that reverse the effect of the decision in Alcan. 17 Second, the inclusion of the authorised remittance of union membership fees is addressed in unambiguous terms in the Act. Having regard to the plain words of s6 of the Act, it seems to us that the only properly available construction of that section is to conclude that the authorised remittance by employers of membership fees of industrial organisations is an industrial matter. We consider this conclusion derives from the plain words of s6(2)(i) of the Act, allowing for the use of modern language to convey the statutory intention by the use of the word "examples" in the preamble to that sub-section. 18 As Mr Shaw's submission noted, the use of "examples" is an approach that is becoming more common in contemporary legislative drafting, possibly in response to issues of statutory construction that may sometimes arise from the use of the word "includes". In D C Pearce and R S Geddes' Statutory Interpretation in Australia (Butterworths, 4th ed) such drafting issues with respect to the statutory use of the word "includes" were described as follows (at [6.36]): Particular confusion has arisen where the word "includes" has been used in a definition and then one or more items that would usually fall within the accepted meaning of the word have been specified together with some items that would not. The problem has then arisen whether the definition, notwithstanding the use of the word "includes", was intended to be exhaustive. From the drafter's point of view this practice can be defended simply on the basis that it is not always clear precisely what items will be regarded as falling within the scope of the word. Hence caution advises that doubtful items should be listed among those "included" lest they be regarded as not covered by the word defined. But if some items that would normally fall within the scope of the defined word are included, is another item that would also normally be covered by the term defined, but which is not mentioned, to be treated as not falling within the definition. 19 In any event, and thirdly, by adopting a purposive approach to construction, we would conclude that the authorised remittance by employers of membership fees of industrial organisations of employees is an industrial matter. Such a construction is consonant with the legislative intention or purpose, with respect to s6 of the Act. The construction of s6(2) proposed by the appellant would render nugatory the provisions of s6(2)(i) thereof. 20 It may be noted the second reading speech for the Industrial Relations Bill 1995 (which was adopted and incorporated for the purposes of the Industrial Relations Bill 1996) emphasised the definition of industrial matters was expansive. The then Minister for Industrial Relations, the Hon. J W Shaw QC MLC stated: Chapter 1 also includes a definition of industrial matters, which, although shorter than the definition in the 1991 Act, is also intended to be expansive in its operation and not narrower than the definition in the present legislation ( Hansard - Legislative Council, 23 November 1995) 21 Fourth, the Parliament may be presumed to have legislated with knowledge of decisions of the High Court, and other courts and tribunals; and, relevantly in this instance, of the 1994 decision in Alcan.

22 We order: 1. leave to appeal in relation to the jurisdictional issue is granted; 2. leave to appeal is otherwise declined; 3. the appeal is dismissed.

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