Rgc Mineral Sands Ltd & Anor v Construction, Mining, Energy, Timberyards, Sawmills, Woodworkers Union of Australia WA Branch & Ors [2000] WASCA 162

Rgc Mineral Sands Ltd & Anor v Construction, Mining, Energy, Timberyards, Sawmills, Woodworkers Union of Australia WA Branch & Ors [2000] WASCA 162 - WASCA 1999 case summary — Zoe

[165]

55 It may be thought that there is some awkwardness about the legislature's use of employer and employee in s 5(3) WPA Act to describe parties who have not yet entered into a contract of employment, but the intended meaning is, nevertheless, clear enough. Even more awkward is the use of employer and employee in s 7B of the IR Act. By its terms, an employer and an employee who are parties to a workplace agreement "are not, in relation to one another, within the definitions of 'employer' and 'employee' respectively in section 7(1)." There is no quality about a workplace agreement, as envisaged by the WPA Act, which would have the effect that the parties to the agreement would not be respectively an employer and an employee within the defined meaning of those terms in the WPA Act and in s 7(1) of the IR Act. Indeed, that is necessarily accepted by the WPA Act as s 5(1)(a) defines a WPA as an agreement between employers and employees, those terms being defined in s 3 primarily by adopting by reference the respective definitions in the IR Act. Thus, it cannot be the intention or effect of s 7B, as was submitted, that "employer" and "employee" when first used in that provision have meanings other than the defined meanings. It was submitted the common law meanings of the terms should be implied. Were that the case they could not be parties to a workplace agreement. Rather, in my view, it must be the intended operation of s 7B to except from the definitions of employer and employee, for the purposes of the IR Act, as it were by way of an express limitation or an artificial deeming, those who are parties to a workplace agreement which is in force, whilst leaving those parties as employer and employee within the defined meanings of those terms as those defined meanings have been adopted by reference in the WPA Act. Both s 7B and s 7C operate to effect this exception or deeming in cases "where any employer or employee are parties to a workplace agreement". Each section is concerned with the relationship between an individual employee and the employer.

[183]

65 The mutuality as between employer and employee of the employer's decisions as to recruitment was considered and accepted by the decision of all members of the High Court in Re Cram (supra) at 133 - 137. In particular, as was confirmed in that decision at 135 - 136, a system of recruitment which gives preference to union labour involves an industrial matter within the definition in s 4 of the Federal Act, the terms of which are set out at 132 of the report. In part, that definition is in substantially similar terms to par (c) of the definition in s 7(1) of the IR Act. This is so even though the industrial matter relates to prospective employment. While it might be thought that par (j) of the definition in the Federal Act, which refers directly to preferential employment, is a material distinction, both the reasoning in the Re Cram decision and the passage quoted above from The Master Builders and Contractors decision in this State reveal that is not the case. The reasons in Re Cram also deal with and reject the submission that decisions as to the mode of recruitment of an employer, or as to whom should be preferred for employment by an employer, cannot be industrial matters as they are within what has been called the management prerogative of the employer. While decisions as to employment may be critical to management, as is said in Re Cram at 136 - 137, that is a reason for caution by an Industrial Tribunal in the exercise of its jurisdiction (perhaps even extreme caution) but it is not a justification for construing the words of the definition to exclude such matters. Thus, for reasons examined in Re Cram at 133 - 137, in some situations at least, decisions by an employer as to whom to employ or not to employ in an industry relate to the mutual roles of employers and employees as such in the industry. In such situations clearly there would be no need to resort to par (c) to find an industrial matter, the general introductory words of the definition would suffice.

[205]

77 It may be helpful to an understanding of the basis for the decision in Pepler and the other cases in that line of authority to be reminded of the terms of the definition of industrial matter and in particular of par (c) of that definition which was, of course, the approach taken by the court in the Nappy Happy Hire decision. In Pepler's case the jurisdictional point may be seen to have been "the dismissal of any person" employed in the industry. It follows, necessarily, from those terms of par (c) of the definition that the termination by dismissal of an employer and employee relationship in an industry is an industrial matter. It does not matter whether the dismissal has had effect so that there is no longer an existing employer and employee relationship when the matter is taken to the Commission or whether the dismissal is on notice and the notice is yet to expire. It is the termination of the relevant relationship by dismissal and matters which "relate to" the dismissal which is the industrial matter. This was not only the view succinctly identified in the Nappy Happy Hire decision, but it was the view specifically relied on by Burt J in the Princess Margaret Hospital decision in the passage which has been quoted earlier in these reasons, and it was the foundation for the view of Jackson J expressed in the passage quoted earlier from the Kwinana Construction Group (supra) decision. The reinstatement to the former employment, ie to the employer and employee relationship may be seen as a matter directly "relating to" a dismissal and therefore within the scope of par (c) of the definition. Hence, those cases have held consistently that reinstatement of a dismissed employee is within the jurisdiction of the Commission and an order to reinstate is within power. The point of the Pepler line of cases may, therefore, be a concern to draw the line between those matters such as reinstatement which are to be accepted as sufficiently directly related to a dismissal so as to be within the jurisdiction of the Commission, and those other matters which are insufficiently closely related to the jurisdictional fact of dismissal so that they are beyond the power of the Commission to deal with them. Necessarily, questions such as this involve fine and difficult distinctions. Views may differ as to their appropriate resolution as is evident from the discussion of this issue in the reasons in the Happy Nappy Hire case. In the Pepler decision that line may be seen to have been drawn to exclude a claim for compensation for loss of income for a period following a dismissal in circumstances where it was the decision of the Commission that the employment should not be reinstated. So too, in the decision in Robe River Associates v Metal and Engineering Workers Union (supra) the permanent cessation of the employer and employee relationship was seen as one basis on which it should be concluded that the continuance of a civil action for negligence by the employer was not sufficiently related to the dismissal of the former employee to be within the jurisdiction of the Commission. In that case, however, other factors, which were also considered in the reasons and which may perhaps be thought to be more fundamental to the issue of jurisdiction, also commended the same conclusion.

[208]

80 The ground of the application to the Commission in the present case in relation to the proposed amendment to the award to add subclauses (1) - (4) is expressed as being to give effect to freedom of choice in relation to employment, in particular because the employer respondents were employing labour only on the basis of workplace agreements thereby depriving prospective employees of the right to choose employment under the award system. While this ground could be more happily expressed, it emerges sufficiently clearly that the matter sought to be raised is the policy of WSL, which was confirmed in evidence before the Commission, that in filling its existing vacancies in the industry, vacancies which at the time of the application it was actively seeking to fill by offering employment to prospective employees, it would only employ persons who agree to enter into a workplace agreement. By committing itself to this policy WSL refuses, and has indicated it will continue to refuse, to employ in the vacancies it is offering persons who comprise an identifiable class, ie those who wish to be employed pursuant to the award that would apply if no workplace agreement is entered into. There is no existing contract of employment between WSL and any of the prospective employees who have been offered employment, but employment was clearly in immediate contemplation. Given the terms of the application to the Commission and the evidence that has been led at first instance, if the position remains in essence as it was at the time of the application and hearing, it seems to me that it would be open to the Commission to conclude that the application raised a matter within the definition of an "industrial matter" being, or relating to, a refusal by WSL to employ in the industry that class of persons. The Commission was persuaded against this essentially because of the view it took of the effect of the Pepler line of cases. For the reasons given earlier, in my respectful view the Commission fell into error of law in so doing.

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Judgment (226 paragraphs)

Rgc Mineral Sands Ltd & Anor v Construction, Mining, Energy, Timberyards, Sawmills, Woodworkers Union of Australia WA Branch & Ors [2000] WASCA 162 (10 November 1999)

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Cases Cited (14)