Rocks and Jeskie v The Uniting Church in Australia

APPLICANTS: Ms M A C Painter of counsel Acuiti Legal, Solicitors (Mr Richard F Lund) LEGAL REPRESENTATIVES: RESPONDENTS: Mr C J McArdle, Solicitor KPMG Legal

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH

CORAM: Wright J, President Walton J, Vice-President Schmidt J Wednesday 20 March 2002 MATTER NUMBER IRC 5785 OF 2001 KEVIN ROCKS v THE UNITING CHURCH IN AUSTRALIA AND OTHERS Application under section 106 of the Industrial Relations Act

MATTER NUMBER IRC 5786 OF 2001 WENDY JESKIE v THE UNITING CHURCH IN AUSTRALIA AND OTHERS Application under section 106 of the Industrial Relations Act

STATEMENT AND ORDER 1 These matters came before the Full Bench after a reference by Schmidt J pursuant to s 193 of the Industrial Relations Act 1996 ('the Act') on 7 November 2001. The question referred was "whether the Court should act of its own motion to deal with the allegation that the respondents are in contempt of the Court". 2 The allegation was raised with her Honour by the applicants following their dismissal from their employment, shortly before the applications which they had each brought pursuant to s 106 of the Act were conciliated by her Honour in accordance with the requirements of s 109 of the Act. The conciliations proceeded, but failed to resolve the applications which the applicants had brought. 3 Her Honour considered that ss 153(2) and 164 of the Act required that if the allegation was to be further dealt with, it was necessary for the matter to be referred to the Full Bench. Although neither her Honour nor the Full Bench has heard argument on this aspect we consider her Honour's conclusion represents the preferable construction of the statutory scheme. Rule 237 also applies to the allegations made. It provides that: 237. Motion or proceedings by the Registrar

(1) Where it is alleged, or appears to the Commission on its own view, that a person is guilty of contempt of the Commission, the Commission may, by order, direct the Registrar to apply by motion for, or to commence proceedings for, punishment of the contempt.

(2) Subrule (1) does not affect such right as any person other than the Registrar may have to commence proceedings for punishment of contempt. 4 When the matter came before the Full Bench in December, Ms Painter of counsel appeared for the applicants and Mr McArdle, solicitor, for the respondents. Ms Painter confirmed that the applicants were now unemployed and were unable themselves to take contempt proceedings, but brought the allegation of contempt to the Court's attention, so that consideration could be given to whether the allegation should be investigated and proceedings commenced. 5 Mr McArdle expressed concern that there had been no specification of any charge and strenuously denied that the respondents had been involved in any contempt. He asked that the proceedings before the Full Bench be struck out. No notice of that application had been given and thus discussions between the parties on the issues between them, as well as in relation to the allegation of contempt, were facilitated. The parties arranged a further conference and the applicants' counsel undertook then to formulate the allegation of contempt which had been raised in the proceedings. 6 The allegation, in the form of draft summonses to show cause, was filed on 24 January and later served on the respondents (copies of the documents are Annexures to this Statement)*. The respondents then sought various particulars, which were provided in part by the applicants, apparently the view being taken by them that some were not proper requests for particulars. On 13 February, when the matter again came before the Full Bench, Ms Painter described the developments which had occurred and confirmed that the evidentiary material on which the allegations were based, was contained in various affidavits which had earlier been filed. 7 Mr McArdle renewed the respondents' concerns and sought that the proceedings be brought to an end, with an order for costs in the respondents' favour. He contended that, in the matters relied on by the applicants, there had been no interference with the administration of justice by the respondents. Nor had there been any articulation by the applicants of what the alleged interference was, or who was responsible for it. He argued that it would be a denial of natural justice for the respondents to be called upon to respond to the allegations which had been made. 8 Mr McArdle also raised whether the s 106 proceedings had been commenced against the correct entities. The first and second respondents, he submitted, had never had any contractual relationship with either applicant, as had been repeatedly pointed out in correspondence to them. Mr McArdle explained, in answer to a question from the bench, that the applicants had been employed by other legal entities and not the named respondents. 9 In response to the various matters raised by Mr McArdle, Ms Painter confirmed that no allegation of contempt was made as to Mr Grasso, the third respondent. She addressed the question raised as to the interference with, or obstruction of, the administration of justice alleged against the other respondents in the draft summonses. This was said to concern orders given to the applicants by the respondents, that they attend upon the respondents to explain their court documents and processes in the s 106 proceedings; the threats made in relation to the applicants' failure to give such explanations and the dismissal of the applicants from their employment when they failed to attend upon the respondents to give such explanations. Ms Painter also explained her understanding of the relationship between the named respondents and the entities which Mr McArdle asserted had employed the respondents. It may be observed that the difficulty as to respondency had not been pursued by the respondents by application to the Court. 10 A programme was then fixed for affidavits to be filed by the parties as to the issue whether the respondents, or other legal entities, had employed the applicants. Mr McArdle also sought that the applicants produce a particularised pleading within seven days, or the Court decline to proceed with the matter. That direction was not made by the Full Bench. 11 Two affidavits were later filed in each proceeding. The respondents' solicitor also wrote to the Associate to the President on 28 February 2002, attaching a copy of correspondence he had sent to the applicants' solicitors. It was there alleged that the applicants had failed to comply with the Full Bench's directions. It was also foreshadowed that an application would be made by 4 March that the Full Bench cease dealing with the matter. No such application has been filed. 12 We have noted the contents of the two sets of affidavits. The first was sworn by the applicants' solicitor, Mr Richard Lund, as to the establishment of the first and second respondents by the Uniting Church in Australia Act 1977 and also as to searches undertaken with the Australian Securities and Investment Commission ('ASIC'), in relation to the Uniting Care Aging and Disability Service ('UCADS') and Wesley Gardens Georgian Aged Care. Both businesses appear to be recorded in these documents as being carried on by the second respondent. 13 The second set of affidavits was filed on behalf of the respondents on 5 March 2002. They were sworn by Mr Les McDonald, the Executive Director of the Uniting Care Aging and Disability Service of New South Wales and ACT, asserting that the applicants were employed by the Board of Wesley Gardens acting under the auspices of UCADS. Mr McDonald further asserted that the second respondent: 3. … has the function of holding and dealing in the property real and personal of the Uniting Church. It does not employ any staff and it does not run any organisations.

The Uniting Church in Australia is an entity referred to in the Uniting Church in Australia Act 1977, an Act of the New South Wales Parliament, with counterpart legislation in every jurisdiction throughout Australia, including self governing territories.

The Uniting Care Aging and Disability Service has been set up under both the New South Wales and ACT legislation by agreement with the synods created under those two items of legislation.

UCADS sets up the Boards of the Uniting Care Facilities, with the Authority of Synods. It is the Boards which issue group certificates and dispense all obligations pursuant to award, statute and contract.

In the event of an award of damages being made to an employee in, say, wrongful dismissal action under the Industrial Relations Act, it is the Boards of the individual entities which bear the responsibility of appearing before the Commission and paying any amount of money.

The Uniting Church in Australia and the Uniting Church in Australia Property Trust (NSW) have never to my knowledge been the respondents in an employment matter, and I am aware of no case where either of those entities have ever been ordered to pay money arising from such a dispute.

If an amount of money is paid to the applicant as the result of their action pursuant to Section 106 of the Industrial Relations Act it will be paid by the Board of Wesley Gardens out of the resources of Wesley Gardens. All payments which have been made to date in this matter have come from that source. I am anxious that if either of the current respondents were ordered to pay money, that the employer of the Applicants would remain exposed to future claims, and would be put to the stress and expense of contesting them.

It is the wish of the Uniting Care Aging and Disability Service and the Board of Wesley Gardens to resolve all of the differences between Mr Rocks and Ms Jeskie. On the other hand, if the respondents were renamed as the Board of Wesley Gardens (First Respondent) and the Uniting Care Ageing and Disability Service of New South Wales and ACT (Second Respondent) no jurisdictional resistance would be taken against any order which is made against those entities.

14 The recent judgment of the High Court in Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8 is an illustration of the difficulties which may be involved in determining the identity of an employer of those engaged by church operated organisations. Here the difficulty lies not in the relationship which a Minister of religion might have with a church, but seemingly whether the respondents, particularly the second respondent which appears to be registered with ASIC as operating the business in which the applicants' were employed, had entered into contracts of employment with them. Mr McDonald's affidavit is not entirely clear, but it appears to suggest that the respondents have established the boards he names and that it was the board he refers to, rather than the respondents, which entered into the relevant employment contracts with the applicants. 15 Whether such entities can make such contracts or may be the subject of legal proceedings such as those brought under s 106 by the applicants, if they have no independent legal status of their own, are questions raised on the affidavits filed. Perhaps the respondents have been correctly identified in the proceedings. On the other hand, the proper respondents to the proceedings may be the individual members of those apparently unincorporated bodies. The judgment of the High Court in Ermogenous at, for example, paragraph [33], also refers to the difficulties in maintaining proceedings against unincorporated bodies. However, the question whether the s 106 proceedings have been commenced against appropriate respondents is a different question to whether a contempt of court has been committed and, if so, by whom. 16 The matters which now require consideration are whether it is appropriate for the Commission to make an order directing the Registrar to proceed under either limb of Rule 237(1). That may occur either if "it is alleged … to the Commission that a person is guilty of contempt" or if "it … appears to the Commission on its own view, that a person is guilty of contempt". Although the first formulation in the rule requires a qualitatively different finding to that involved in the latter formulation, we consider that it nevertheless requires the exercise of a discretion. That is, the mere receipt by the Commission of an allegation of contempt would not found the exercise of the discretion under the first limb if it was considered, for example, that the allegation was made frivolously, vexatiously or fancifully. 17 Approaching the matter accordingly, we consider that the allegations which have come to the attention of the Commission in the way in which we have described, provide an appropriate basis under the first limb of rule 237(1) for the alleged contempt to be further dealt with. It does not appear that the allegations contained in the material have been made on a frivolous or vexatious basis. The material in the affidavits sworn by Mr Lund provides a sufficient basis for the allegations to be considered in relevant respects, together with any affidavit filed by the first and second respondents. Having regard to the affidavits sworn by Mr McDonald, it may be that such proceedings may need to be commenced against other persons or entities. 18 Accordingly, we order the Registrar to apply by motion for, or to commence proceedings for, punishment of the contempt alleged, as envisaged by Rule 237(1). For that purpose, we direct the Registrar to instruct the Crown Solicitor and thereby to brief counsel, as to the initiation and conduct of such proceedings and to assist the Commission therein. 19 We note that the s 106 proceedings have now been allocated to Peterson J for directions, case management and for the hearing of the substantive proceedings. ------------------------ * (The Annexures are not reproduced on the CaseLaw and AustLII databases)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.