NSWNSWIRComm

The Australian Workers' Union, New South Wales v Office of Environment and Heritage

[2012] NSWIRComm 133

Industrial Relations Commission (NSW)|2012-11-16|Before: Boland J

View original source

At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2012-11-16

Before

Boland J

Catchwords

(2001) 107 IR 211 Australian Education Union v Department of Education and Children's Services [2012] HCA 3
(2012) 285 ALR 27 BGC Contracting Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers (No 2) [2005] FCA 908
(2005) 143 FCR 409 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
(2012) 290 ALR 647 Butler v Attorney-General (Vic) [1961] HCA 32

Source

Original judgment source is linked above.

Catchwords

(2001) 107 IR 211 Australian Education Union v Department of Education and Children's Services [2012] HCA 3(2012) 285 ALR 27 BGC Contracting Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers (No 2) [2005] FCA 908(2005) 143 FCR 409 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32(2012) 290 ALR 647 Butler v Attorney-General (Vic) [1961] HCA 32(1961) 106 CLR 268 Carricks Ltd v Pizzaro (1995) 38 NSWLR 274 Collins v Charles Marshall Pty Ltd [1955] HCA 44(2011) 209 IR 49 Felton v Mulligan [1971] HCA 39Ex parte Barrett v Opitz [1945] HCA 50(1945) 70 CLR 141 Re McJannetEx parte Australian Workers' Union of Employees Queensland [1997] HCA 40(1997) 189 CLR 654 Re PolitesEx parte Hoyts Corporation Pty Ltd (No 2) [1991] HCA 25(1991) 173 CLR 78 Saraswati v R [1991] HCA 21(1991) 172 CLR 1 Speirs v Industrial Relations Commission of New South Wales [2011] NSWCA 206 Speirs v Springvale Coal Pty Ltd [2010] NSWIRComm 30(2010) 200 IR 133 Tristar Steering & Suspension Australia Limited v Industrial Relations Commission of New South Wales (No 2) [2007] FCAFC 95

"Matters arising under" 19The first issue to be determined is whether the applicants' claims are "matters arising under" the 1987 Act or the 1998 Act. If they are not matters arising under either Act then s 105 has no application. If they are matters arising under either Act the inquiry remains as to whether the Workers Compensation Commission has exclusive jurisdiction to examine, hear and determine the claims. 20There are a number of constitutional cases that have examined s 76 of the Australia Constitution, which relevantly provides: The Parliament may make laws conferring original jurisdiction on the High Court in any matter: (i) arising under this Constitution, or involving its interpretation; (ii) arising under any laws made by the Parliament; ... 21Having in mind the reservation voiced by Priestley JA in Carricks Ltd v Pizzaro (1995) 38 NSWLR 274 at 277, that the phrase "arising under" may not necessarily have the same meaning in the context of the 1987 Act as it does in the Constitution, nevertheless the constitutional cases are instructive. 22In R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett v Opitz [1945] HCA 50; (1945) 70 CLR 141 Latham CJ dealt with a contention in prohibition proceedings that a controversy between members of a registered organisation in respect of the observance of the rules of the organisation did not fall within the category of matters arising under a law made by the Parliament. At 150 his Honour stated: The argument has been based upon the words "arising under any law" rather than upon the word "matter". A controversy between persons as to whether rules of an organisation to which they belong have or have not been observed is, when brought before a Court, included within the meaning of the word "matter" as used in the Constitution, s.76; see In re Judiciary Act 1903-1920 and Navigation Act 1912-1920. It involves "a right or privilege or protection given by law" and "the prevention, redress or punishment of some act inhibited by law." 23His Honour then considered a number of United States' authorities before observing at 154: ... The relevant inquiry is whether the matter arises under the law. Thus one is compelled to the conclusion that a matter may properly be said to arise under a federal law if the right or duty in question in the matters owes its existence to the federal law or depends upon federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law. In either of these cases, the matter arises under the federal law. If a right claimed is conferred by or under a federal statute, the claim arises under the statute. This view is in accordance with Federal Capital Commission v Laristan Building and Investment Co Pty Ltd. The construction of the federal law, and perhaps the question of the validity of such a law, may be involved in such a matter. But it is not necessary that this should be the case in order that the matter may arise under the law. It is not necessary or desirable to attempt to frame an exhaustive definition of "matters arising under a law". In my opinion, "matters arising" include matters of the character mentioned. 24In Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367 Barwick CJ at 374 confirmed that for a matter to arise under a statute, there must be more than simply a question of construction of that statute: ... It is of course not enough that a law made by the Parliament must be construed in the course of the decision of the case. There must be a matter arising under a law of the Parliament. The contrast between the language of s. 76 (i.) and 76 (ii.) is relevant in this connexion. The point at which interpretation of the federal statute, prima facie an apparently incidental consideration, may give rise to a matter arising under the statute is not readily expressed in universally valid terms. But the distinction between the two situations must be maintained. 25A similar approach was taken by the High Court (Dixon CJ, McTiernan, Williams, Webb, Fullagar and Kitto JJ) in Collins v Charles Marshall Pty Ltd [1955] HCA 44; (1955) 92 CLR 529 at 540: Clearly enough a matter or a proceeding may involve the interpretation of the Act or of an order or of an award, although the proceeding does not arise under the Act." Taylor J similarly stated at 556: "...it is clear that neither matters involving the interpretation of the Act nor matters involving the interpretation of an order or award, by virtue of that character alone, fall within the specification of matters contained in ss. 75 and 76. 26Thus, it is apparent on these authorities that although a matter might involve the interpretation of a statute it will not necessarily follow that there is a matter arising under that statute. A matter may properly be said to arise under a statute if the right or duty in question in the matter owes its existence to the statute or depends upon the statute for its enforcement. As it was stated in Barrett, if a right claimed is conferred by or under a statute, the claim arises under the statute. 27However, distinguishing between a matter involving the interpretation of an Act and a matter arising under the Act is not always easy. French J in BGC Contracting Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers (No 2) [2005] FCA 908; (2005) 143 FCR 409 considered this difficulty. In doing so, his Honour followed Barrett and Felton v Mulligan: [29] There is difficulty in distinguishing between a matter involving the interpretation of an Act and a matter arising under the Act. This was thrown up in Felton v Mulligan, a case involving action on a deed in the equitable jurisdiction of the Supreme Court of New South Wales. The deed entered into by a husband and wife shortly prior to the dissolution of their marriage provided that the husband and his heirs, executors and administrators would pay periodical maintenance to the wife during her lifetime. Following her husband's death the wife sought to enforce the deed against his executors who raised in defence that the deed was void as purporting to oust the jurisdiction of the court under the Matrimonial Causes Act 1959 (Cth). The High Court held by majority that the Supreme Court was exercising jurisdiction in a matter arising under the Matrimonial Causes Act thus precluding appeal to the Privy Council. Dr Wynes observed that in the light of the decision in Felton v Mulligan it is difficult to imagine a case in which 'mere' interpretation of a Federal Act is involved and which does not arise thereunder - Wynes, WA Legislative Executive and Judicial Powers in Australia LBC 5th Edition (1976) (at 479). Barwick CJ, who was in the majority in Felton v Mulligan, said (at 374): The point at which interpretation of the federal statute, prima facie an apparently incidental consideration, may give rise to a matter arising under the statute is not readily expressed in universally valid terms. But the distinction between the two situations must be maintained. Walsh J cited the passage quoted earlier from the joint judgment in Collins which made that distinction and said (at 409): ... in my respectful opinion, the statement quoted restricts unduly, in so far as it relates to a matter of defence based directly upon an Act of the Parliament, the scope of the matters which may be held to arise under an Act. In the context of what constitutes matters arising under the Constitution or involving its interpretation within the meaning of s 76(i) of the Constitution, Professor Zines observed, in the light of James v South Australia [1927] HCA 32; (1927) 40 CLR 1 and Felton v Mulligan: In the light of the decision of the majority in Felton v Mulligan, however, there would seem to be very few matters involving the interpretation of the Constitution that do not arise under the Constitution. He also referred to Dr Wynes' observation about the effect of Felton v Mulligan - Cowen and Zines, Federal Jurisdiction in Australia 3rd Edition (2002) (at 69). [30] In my opinion what was said in Collins v Charles Marshall which related, in the context of that case to proceedings brought under a State Act do not apply in the present case. In the present case the primary relief sought was by way of declarations that the representatives of the CFMEU had no right under the IRA to enter the Burrup site. The basis of that argument was that any such right of entry would be inconsistent with the restrictive right of entry conferred by the WRA in relation to AWA employees. Central to that argument were contentions about the scope of the rights of entry conferred by the WRA in respect of AWA employees and whether they were inconsistent with rights of entry conferred by the IRA. It also involved a determination about the effect of obligations created by AWAs registered under the WRA in limiting the application of the rights of entry under the IRA. That the case required consideration of s 109 of the Constitution as placing limits upon the valid operation of rights of entry under the IRA in relation to any inconsistency does not mean that the case did not involve a matter arising under the WRA. [31] In my opinion the declaration sought necessarily involved a determination about the scope and operation of the right of entry under the WRA. [32] It is well settled that a matter arises under a law of the Commonwealth if a right or duty or a power or immunity in question in the matter "owes its existence to federal law or depends upon federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law" - R v Commonwealth Court of Conciliation and Arbitration; ex parte Barrett (1945) 70 CLR 141 at 154. See also Felton v Mulligan (at 387, 498 and 416); Moorgate Tobacco Co Ltd v Philip Morris Ltd (at 581-582). That principle was applied in a context relevant to the present case, by the High Court in Re Polites; ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78. The Court held that an application for mandamus to a deputy president of the Industrial Relations Commission to hear and determine the matter pending before him was a matter arising under what was then the Industrial Relations Act 1988 (Cth). Section 347 was held to apply to prevent the recovery of costs in that case. The duty which the deputy president was to be required to carry out was a duty imposed by him by the Industrial Relations Act 1988. [33] In the Australian Education Union case declarations were sought that workplace agreements under the Workplace Agreements Act 1993 (WA) were inconsistent with federal certified agreements under the WRA and therefore unable to be validly registered. It was so held but costs were refused on the basis that the declarations sought were dependent upon the operation of the certified agreement under the WRA. The application therefore concerned a matter arising under the WRA and s 347 applied. [34] In my opinion, for similar reasons, the application for the determination here sought depended for its success upon the existence of rights of entry under the WRA which were inconsistent with those conferred by the IRA. It therefore involved a matter arising under that Act. ... 28As French J stated, the primary relief sought was by way of declarations that the representatives of the CFMEU had no right under the Industrial Relations Act 1979 (WA) to enter the Burrup site. The application for the determination depended for its success upon the existence of rights of entry under the Workplace Relations Act 1996 (Cth), which were inconsistent with those conferred by the Industrial Relations Act. His Honour held that although the case required consideration of s 109 of the Constitution as placing limits upon the valid operation of rights of entry under the Industrial Relations Act in relation to any inconsistency, it did not mean that the case did not involve a matter arising under the Workplace Relations Act. 29The applicants in the present proceedings referred to Re McJannet; Ex parte Australian Workers' Union of Employees Queensland [1997] HCA 40; (1997) 189 CLR 654 and the decision of the Full Federal Court in Tristar Steering & Suspension Australia Limited v Industrial Relations Commission of New South Wales (No 2) [2007] FCAFC 95; (2007) 159 FCR 274, which applied the test in McJannet. It was submitted that those cases involved the determination of important questions of construction of the relevant statutes, but it was, nevertheless, held the matters were not matters arising under the relevant Acts. 30In McJannet the prosecutors had sought an order for costs against the respondent industrial organisation, but the respondent submitted that s 347(1) of the Industrial Relations Act 1988 (Cth) required the High Court to refuse to make any order for costs. That provision read: A party to a proceeding (including an appeal) in a matter arising under this Act shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable excuse. 31At 656 the Court (Brennan CJ and McHugh and Gummow JJ) referred to an earlier decision in Re Polites; Ex parte Hoyts Corporation Pty Ltd (No 2) [1991] HCA 25; (1991) 173 CLR 78: The question whether a proceeding is in a matter arising under the Act within the meaning of s 347(1) was considered in Re Polites; Ex parte Hoyts Corporation Pty Ltd [1991] HCA 25; (1991) 173 CLR 78 where this Court made an order absolute for mandamus directing Mr Deputy President Polites to hear and determine a matter which was pending under the Act before him in the Industrial Relations Commission. That order enforced the statutory duty imposed upon the Deputy President by the Act. That was sufficient to make the proceeding in this Court itself a proceeding in a matter under the Act. By contrast, the proceeding in this case was to prohibit the continuance of the proceeding in the Federal Court on the ground that that Court had no jurisdiction under the Act to determine the matter in controversy between the parties as to their substantive rights. 32Referring to Barrett, the Court stated at 656: The test for determining whether a proceeding is in a matter arising under the Act for the purposes of s 347(1) is whether the right or the duty that is sought to be enforced owes its existence to a provision of the Act. 33The Court proceeded at 657 to hold as follows (references omitted): In the present case, the proceeding before the Federal Court was in a matter arising under the Act because the respondents were claiming a right under the Act against the prosecutors. No order for costs could be made in respect of the proceeding in the Federal Court. The proceeding in this Court, however, is of a different nature and the controversy between the parties is a different matter. In this Court, the prosecutors asserted the absence of a jurisdiction in the Federal Court to proceed further in the proceeding pending there. The jurisdiction of this Court which the prosecutors invoked is conferred by s 75(v) of the Constitution. The duty which was sought to be enforced was the duty not to assume a jurisdiction which the Federal Court did not have. Although the jurisdiction of this Court to issue mandamus in Re Polites, like the jurisdiction to issue prohibition in the present case, was conferred by s 75(v) of the Constitution, the proceeding in Re Polites answered the description of a matter arising under the Act within the meaning of s 347(1). But the proceeding in the present case does not. The relief which was sought by way of mandamus owed its form and content to the provisions of the Act which imposed the duty that the respondent was commanded to perform. The relief which is sought in an application for prohibition is not for the enforcement of any right or duty created or conferred by the Act. Accordingly, s 347(1) has no application to a proceeding for the issue by this Court of prohibition under s 75(v) of the Constitution. 34In Tristar, Buchanan J, with whom Kiefel and Giles JJ agreed, observed in respect of McJannet at [11]: [T]he High Court considered the issue in proceedings (again invoking the jurisdiction conferred by s 75(v) of the Constitution) to prohibit any action upon a decision purportedly made under the federal IR Act. The High Court held there was no jurisdiction to make the decision. In those circumstances the High Court held that the relief sought and obtained did not relate to the enforcement of any right or duty created or conferred by the federal IR Act and that s 347(1) had no application. Polites was distinguished. Costs were awarded. The present proceedings are not a direct parallel to McJannet. Neither do they fall within the approach taken in Polites. 35In Tristar, the Court held that the provisions of the IR Act, which authorised the Industrial Relations Commission of New South Wales to hold an inquiry into certain matters concerning Tristar, were invalid by reason of inconsistency with s 16 of the Workplace Relations Act 1996 (Cth). Buchanan J at [9] characterised the issue determined in the proceedings as follows: [9] Section 16 of the WR Act contains a statement of parliamentary intent. Having regard to the terms of the WR Act (including s 16) s 109 of the Constitution was found to render invalid so much of the Industrial Relations Act 1996 (NSW) ('the IR Act') as would otherwise permit the Industrial Relations Commission of New South Wales ('the IRC') to continue to conduct an inquiry into matters referred to it under s 146(1)(d) of the IR Act by the New South Wales Minister for Industrial Relations. Consequently, the IRC lacked jurisdiction to perform any function in relation to the terms of reference establishing the inquiry. 36At [16] Buchanan J stated: [16] In my view, it cannot correctly be maintained that the relief which was granted by the orders earlier made in the present matter was a vindication of a right or duty conferred or created by the WR Act. Rather the right or duty (if that is the correct way to regard the absence of jurisdiction in the IRC) arose from the operation of s 109 of the Constitution. The proceedings were brought to enforce the duty upon the IRC not to act outside its jurisdiction, in circumstances where the IRC had made plain its intention to do so. The fact that s 109 of the Constitution was engaged by reason of the terms of the WR Act does not signify, in my view, that the proceedings were 'in a matter arising under' the WR Act within the meaning of s 824 of the WR Act. In my view the Court has power to make an order for costs in the proceedings. 37Kiefel J stated at [2]: [2] The first respondent was not exercising jurisdiction under the WRA, but purported to do so under the Industrial Relations Act 1996 (NSW) ('the State Act'). It was its lack of jurisdiction which was the basis for the injunctions sought and ordered. It lacked jurisdiction because an inconsistency arose between the WRA and the State Act and because the WRA disclosed an intention to cover the field of employer-employee relations. The matter has a connexion with the WRA, but does not involve a right arising under it and the duty of the first respondent not to proceed, which was enforced, arose because of the operation of s 109 of the Constitution and the resultant effect upon the State Act. 38In the present proceedings the applicants' claims involve more than a mere connexion with the 1987 Act. The relief they seek is binding declarations of right that designated employees who perform firefighting activities and whose employment is covered by specified awards are firefighters for the purposes of item 25 of Pt 19H of Sch 6 of the 1987 Act. 39The right to be exempted from the amendments to the 1987 Act by the amending Act depends entirely on whether the employees who are the subject of the applications are firefighters. In other words, the 1987 Act confers a right to be exempted if the employee is a firefighter. Whether an employee is a firefighter depends on the meaning of firefighter in item 25 of Pt 19H of Sch 6 of the 1987 Act. 40The right to be exempted from the amendments, a right which the applicants seek in their applications, is conferred by the 1987 Act. Consequently, the claims for declaratory relief arise under the 1987 Act. 41That conclusion, however, does not mean the Industrial Court has no jurisdiction to make the orders sought.

The Australian Workers' Union, New South Wales v Office of Environment and Heritage

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (14 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (51)

Cited By (1)