The form of the Commission's order
37 The orders that s 496(1) of the WR Act commands the Commission to make are orders that industrial action stop, not occur and not be organised. Of course, the Commission is not restricted to making orders in precisely these terms. There is an ancient legal maxim, the Latin expression of which was Quando lex aliquid alicui concedit, concedere videtur id. sine quo res ipsa esse non potest. This is translated in Wharton's Legal Maxims (3rd ed, 'Law Times' Office, 1903) at p 141 as "When the law gives anything to any one, it gives also all those things without which the thing itself would be unavailable." This principle has long been recognised as applicable to the exercise of powers conferred by statute. The conferral of such powers is said to carry with it powers that are "necessary" for, "incidental" to or "consequential" upon the exercise of the power granted. See Attorney-General v Great Eastern Railway Co (1880) 5 App Cas 473 at 478 per Lord Selborne LC; The Trolly, Draymen and Carters Union of Sydney and Suburbs v The Master Carriers Association of New South Wales (1905) 2 CLR 509 at 516-517 per Griffith CJ and 523-524 per O'Connor J; Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561 at 574 per Dixon CJ, Williams, Webb and Taylor JJ; R v Gough; Ex parte Australasian Meat Industry Employees' Union (1965) 114 CLR 394 at 406 per Barwick CJ, 416 per Windeyer J and 422 per Owen J; Re Sterling; Ex parte Esanda Ltd (1980) 30 ALR 77 at 83; Dunkel v Deputy Commissioner of Taxation (NSW) (1990) 27 FCR 524 at 528; Australian Securities Commission v Bell (1991) 32 FCR 517 at 528 per Sheppard J; Johns v Connor (1992) 35 FCR 1 at 10; and Alice Springs Town Council v Mpweteyerre Aboriginal Corporation (1997) 115 NTR 25 at 35 per Mildren J, with whom Martin CJ agreed.
38 The ancient maxim and its more modern formulations, although they vary, convey the notion that what is done in the exercise of a statutory power is confined to that which is of the essence of its exercise. The judges formulating the principle have not tended to use words like "ancillary", "convenient" or "reasonable". Particularly in relation to the conflict between statutory powers and private rights, the formulations of the principle tend to be restrictive as to the extent of statutory powers. See, for instance, Fenton v Hampton (1858) 11 Moo PC 347, in which the first instance judgment of the Supreme Court of Van Diemen's Land is quoted. At 360, Fleming CJ said:
Whenever anything is authorized, and especially if, as matter of duty, required to be done by law, and it is found impossible to do that thing unless something else not authorized in express terms be also done, then that something else will be supplied by necessary intendment. But, if, when the maxim comes to be applied adversely to the liberties or interests of others, it be found that no such impossibility exists, that the power may be legally exercised without the doing that something else, or even going a step farther, that it is only in some particular instances, as opposed to its general operation, that the law fails in its intention, unless the enforcing power be supplied, then, in any such case, the soundest rules of construction point to the exclusion of the maxim, and regard the absence of the power which it would supply by implication as a casus omissus.
O'Connor J quoted this passage with approval in the Trolly, Draymen and Carters Union case, in the passage cited in [37] above. Both the mandatory nature of the powers conferred by s 496(1) of the WR Act, and the penal consequences that may follow a failure to comply with the order, pursuant to s 496(10) and (11), are apt to reinforce the proposition that the Commission is not empowered to choose whatever means it thinks likely to enhance the attainment of the object of its orders, when it formulates those orders. Whatever method is adopted to attain the object, the order must be essentially an order that the relevant industrial action stop, not occur or not be organised, as the case may be. In the absence of a statutory indication that the Commission is entitled to invoke any other powers (if it still has any relevant other powers), or that it is able to give directions that will facilitate a particular outcome (as was the case under the former s 127), the Commission must focus its attention on the essence of the powers conferred on it, when it formulates its orders.
39 It is also necessary to bear in mind that the duty of the Commission to make orders is confined by s 496(1) of the WR Act to orders that "the industrial action stop, not occur and not be organised." The reference to "the" industrial action is a reference to industrial action that appears to the Commission to be happening, to be threatened, impending or probable, or to be in the process of being organised. It is necessary for the Commission to identify the industrial action that appears to it to be happening, threatened, impending or probable, or being organised, and to make orders that that industrial action stop, not occur or not be organised, as the case may be. Section 496(1) contains neither a duty nor a power to make orders that any act or omission that might possibly fall within the definition of "industrial action" in s 420 of the WR Act stop, not occur or not be organised. The Commission's duty, and power, is limited to the industrial action that is the subject of the application before it.
40 In the present case, in para [6] of his reasons for decision, Senior Deputy President Hamberger found that it was common ground that unprotected industrial action was occurring. Beyond that, there is no finding as to what form or forms that industrial action took. Indeed, the solicitor who appeared for TNT and Riteway in the hearing before Senior Deputy President Hamberger referred only to "strike action" and to "the stoppage". The officer who appeared on behalf of the TWU NSW conceded the futility of suggesting that employees of TNT and Riteway were available for work "at the moment". Nor did the Full Bench make any finding as to the nature of the industrial action, contenting itself at para [10] of its reasons for decision with a finding that it was clear that industrial action was occurring, and a statement at para [26] that "no specific finding concerning the nature of the industrial action is necessary." There is no material by way of evidence to this Court providing any further detail as to the nature of the industrial action that was taking place. This makes it difficult to determine whether the Commission's order, so far as it was an order that the industrial action stop, exceeded its power. The likelihood is that it did. The definition of industrial action in cl 3 of the order adopts the whole of the definition of "industrial action" in s 420 of the WR Act and also sets out in full provisions extracted or derived from that statutory definition. The statutory definition, both in the provisions set out in the order and in other provisions, contains elements inconsistent with a total cessation of work. If the industrial action concerned amounted to a total cessation of work, and the order extended to requiring that other forms of industrial action stop, the order to that extent was beyond power.
41 Paragraph 4(a) of the order not only requires that each employee immediately stop industrial action, but that each employee not engage in industrial action, and not threaten to engage in industrial action. Paragraph 2(d)(i) expresses the order to be binding upon not only employees of TNT and Riteway who were members of the TWU NSW at the time, but also employees who were eligible to be its members. It does not appear that any notice of the proceeding was given to any of the employees individually. So far as the material before the Court shows, the only notification of the application for the order was made to the TWU NSW. This raises issues of the validity of the order, so far as it purports to bind employees of TNT and Riteway, because they may have been denied what is now called procedural fairness, which used to be known as natural justice.
42 Counsel for TNT and Riteway referred to the decision of a Full Bench of the Commission in Pryor v Coal & Allied Operations Pty Ltd (1997) 78 IR 300 at 305-306, in which the Full Bench took the view that service of an application on individual employees was unnecessary, because their interests were represented by the organisation of which they were members. The application concerned was for orders pursuant to the former s 127 of the WR Act. Although the organisation concerned had announced at first instance that it appeared in the proceeding in its own right, the Full Bench on appeal took the view that the organisation represented sufficiently the interests of the employees, so that natural justice or procedural fairness had been afforded to them. In making this decision, the Full Bench relied on Re Harrison; Ex parte Reid (1995) 62 IR 280 at 286, in which a Full Court of the Industrial Relations Court of Australia said:
ordinarily the Commission will be acting reasonably and in accordance with the dictates of natural justice if it relies on registered organisations to represent the interests of their members.
That proceeding was brought by a number of individual employees, who contended that they had been denied natural justice when the Commission had made a demarcation order, as between two organisations, without providing to individual employees whose work was the subject of the order an opportunity to participate in a hearing. It is by no means clear that it is safe for the Commission to rely on its practice under s 127, or on what was said by the Industrial Relations Court of Australia in relation to an order of a very different kind, when dealing with an application for an order under s 496(1) of the WR Act. The presence of subss (10) and (11) of s 496, coupled with the significantly reduced role of unions under the WR Act since the Work Choices Act, results in the Commission being faced with a task that is significantly different from its task in proceedings traditionally conducted under the C&A Act, the IR Act, and even the WR Act in its original form. An order made under s 496(1) now carries with it the possibility of civil penal consequences. The interests of an employee against whom such an order is made are now affected to a far greater degree than they could have been under the former s 127, or under an order demarking their work as between two organisations.
43 In particular, the interests of each individual employee against whom it is proposed to make an order assume greater importance in the light of the availability of civil penal consequences for failure to comply with the order. This appears to bring into play the general principle that the exercise of a statutory power is impliedly conditioned on affording procedural fairness to a person whose interests are likely to be affected by the exercise of the power. The principle is stated in Kioa v West (1985) 159 CLR 550 at 609 per Brennan J:
When the legislature creates certain powers, the courts presume that the legislature intends the principles of natural justice to be observed in their exercise in the absence of a clear contrary intention
Again, at 628, Brennan J said:
A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise
Similarly, at 632, Deane J said:
In the absence of a clear contrary legislative intent, a person who is entrusted with statutory power to make an administrative decision which directly affects the rights, interests, status or legitimate expectations of another in his individual capacity (as distinct from as a member of the general public or of a class of the general public) is bound to observe the requirements of natural justice or procedural fairness.
44 There can be little doubt that it is contrary to this fundamental principle for employees to find out only after an order has been made that they are potentially liable for financial penalties if they fail to comply with that order. The exercise of a power of this nature requires advance notice of the fact that an order is sought, and an opportunity to provide evidence and to make submissions about the issues attending its making. It is not as if TNT and Riteway had no means of contacting the employees; employers are normally in possession of contact details for each employee. The problem of lack of advance notice is compounded by the provisions of cl 5 of the order, under which TNT and Riteway appear to be absolved from notifying each employee that the order has been made, if they serve a copy of it on the TWU NSW and post a copy of it on a notice board in the workplace, at which the employees were not in attendance. There is not even provision for notice that the order has been made, so that employees could decide to comply with it.
45 Even if there remain cases in which the Commission can legitimately say that the interests of particular employees are represented adequately by an organisation, for the purposes of the requirements of procedural fairness, the present case differs from that situation in two respects. One is that the TWU NSW was not an organisation, or a transitionally registered association, which could be treated as an organisation. Part of the reasoning in Re Harrison, justifying the court in treating the interests of members of the organisation as sufficiently represented by the organisation, was the proposition appearing at 286, that the organisation was subject to statutory provisions, now found in Sch 1 to the WR Act, designed to ensure the democratic control of an organisation by its members. In the present case, the Commission could not necessarily assume that the same would apply to the TWU NSW. The second distinguishing feature is that, because the order also purported to bind employees of TNT and Riteway who were not members of the TWU NSW, but would have been eligible to join if they had chosen to do so, it could not be said that the TWU NSW had any responsibility to represent the interests, collectively or individually, of those employees. There is no material before the Court as to whether there were any such persons, so it is not clear whether the Commission's order exceeded the Commission's powers, or was simply a dead letter, to the extent to which it purported to bind employees who were not members of the TWU NSW. All that can be said is that, if there were employees of TNT and Riteway at the relevant places of employment who were not members of the TWU NSW, but were merely eligible to join, the TWU NSW could not represent their interests.
46 In summary, there may be cases of various types before the Commission in which the Commission is entitled to assume that an organisation represents the interests of its members, for the purposes of the application of the principles of procedural fairness. It is clear, however, that the form of s 496 of the WR Act makes it difficult for the Commission to rely on any practice that may have prevailed under the former s 127, of assuming that it is affording procedural fairness to all relevant employees by treating their individual interests as represented adequately, for the purposes of the application of those principles, by the participation of a union in a hearing, particularly where that union is not an organisation.
47 Paragraph 4(a) of the Commission's order appears to have exceeded the power to make it, in the absence of any finding that any industrial action was threatened, impending or probable, because it went beyond the reach of an order that industrial action stop. The absence of any finding by the Commission that it appeared that industrial action was threatened, impending or probable means that it had no power to order that the employees not threaten to engage in industrial action. Whether an order not to engage in industrial action goes beyond an order to stop it is unclear.
48 The second clause of para 4(b) of the order may well be beyond the power of the Commission. Depending on the nature of the industrial action, and the terms of a particular industrial agreement, it might be within the ambit of an order that industrial action stop or not occur to order that employees perform work in accordance with particular provisions of that agreement. A case in which the industrial action consists of a ban on the performance of particular tasks, the performance of which is required by the agreement, comes to mind as an example. Such cases would be relatively rare, since industrial agreements usually consist predominantly of terms prescribing the remuneration for work, and the conditions on which it is to be performed, the assumption being that, if work is not performed, there will be no entitlement to the remuneration prescribed and the conditions prescribed will be inapplicable. A possible case is a ban on the performance of overtime, when the agreement requires that employees work reasonable overtime, although the difficulty of determining in the context of a penalty proceeding whether a particular employee has refused to respond affirmatively to a particular request to work overtime in breach of the order, or because the request is not reasonable, is obvious. It is difficult to see how an order requiring each employee to perform work as required by his or her employer, in accordance with every term of a collective agreement, could ever be regarded as necessary for, incidental to or consequential upon the making of an order that industrial action stop, not occur or not be organised. An order of this nature has the potential to expose an employee to a financial penalty for failing to comply with some requirement of an employer, irrespective of whether the requirement is reasonable or whether it is a requirement to do something that would normally be expected of the particular employee in the position in which he or she has been engaged. The making of an order requiring work in accordance with the terms of an industrial agreement or award would appear to require an examination of the terms of that agreement, the selection of those applicable, and a consideration of the duties of each employee in relation to those terms.
49 The second clause of para 4(b) also suffers from the fundamental flaw that it lacks the precision necessary to enable an employee to know what he or she must do, or refrain from doing, in order to comply. A requirement that carries with it the need to consult the terms of a collective agreement, to see whether what the employee is being required to do is in accordance with those terms, on pain of liability for a civil penalty if it should turn out that the employer's view is correct, such penalty being applicable even while the employee is considering his or her position with respect to the agreement, is highly undesirable, at the very least. While the first clause of para 4(b) might be said to amount to an order that industrial action (consisting of a failure or refusal to perform work) stop, it goes beyond that requirement to the extent that each employee is ordered to be available immediately for work, irrespective of whether he or she has been rostered for work, is on leave, or is unavailable for other reasons. Again, such an order would appear to require that the circumstances of each particular employee be considered.
50 Paragraph 4(c) purports to impose on the TWU NSW, and on all of its officers, employees, agents and delegates, a series of obligations that become increasingly vague as the provisions of the paragraph progress. In the absence of any finding that industrial action was threatened, impending or probable, or was being organised, cl (i) of para 4(c) could not extend beyond a requirement that the TWU NSW stop any form of industrial action that appeared to the Commission to be happening. It could so extend if the Commission reached the conclusion that making such an order against the TWU NSW was necessary for, incidental to or consequential upon the making of an order that the relevant industrial action stop. In the absence of any finding that the TWU NSW was itself engaging in anything that fell within the definition of industrial action, and that appeared to the Commission to be happening, or any finding that the TWU NSW was, directly or indirectly, a party to or concerned in conduct by another person or other persons that amounted to industrial action that appeared to the Commission to be happening, an order against the TWU NSW could not have been justified.
51 Clause 4(c)(ii) of the order appears to travel well beyond any finding that the Commission made, and even beyond any evidence that was before it as to the role of the TWU NSW.
52 Clause (iii) of para 4(c) of the order imposes an obligation to take positive action, as distinct from refraining to do something. This does not necessarily cause it to travel beyond the power of the Commission. It may be that an order to take some positive step can be seen as necessary for, incidental to, or consequential upon an order that industrial action stop, not occur or not be organised. In the absence of any finding that there was any direction, advice or authorisation to delegates or members of the TWU NSW in the present case, it is hard to see how an order requiring immediate advice that such direction, advice or authorisation was withdrawn and that any action must cease was justified.
53 Clause (iv) of para 4(c) again requires positive action, but the action is expressed with such vagueness as to be well beyond any power that the Commission could possibly have. The requirement is that the TWU NSW take all steps "necessary, reasonable and available" to ensure that employees comply with the order. There is a specific requirement of advising each employee of the terms of the order, but no specification of how this is to be done. There is also an obligation to advise TNT and Riteway by a particular time on the morning after the making of the order what steps have been taken to comply with cl (iv) of para 4(c). It is possible that there may be cases in which it is within the power of the Commission to order that a union give advice in certain terms to its members. Such an order may amount to an order that industrial action stop, not occur or not be organised. In such cases, it is at least advisable that the order specify the means by which, and the time by which such communication is to be effected, so that it can be determined with precision whether the union has or has not complied, if that question should ever arise. Otherwise, it is difficult to see how any penal consequences could flow. It is more difficult to see how an order obliging a union to report to an employer the particular steps it has taken to comply with the order can fall within the ambit of the Commission's powers under s 496(1). It is quite impossible to see how a requirement to make choices as to what steps are necessary, reasonable and available to ensure compliance with an order by other persons could ever fall within that ambit. Apart from anything else the principle that a mandatory order must set out distinctly what is required to be done is not merely infringed, but set aside entirely.
54 Paragraph 4(c) as a whole of the order imposes requirements not merely on the TWU NSW, but on its officers, employees, agents and delegates, without the expression of any limitations. In its terms, the order purports to bind all those falling within the four categories of persons, whether or not they have any knowledge of, or concern with, the industrial action to which the order relates, or any authority or capacity to take any steps at all in relation to it. On its face, the order requires that employees of the TWU NSW engaged in purely administrative duties, agents of whatever kind, and delegates employed in workplaces having nothing whatever to do with TNT or Riteway, make choices about what steps they might take, and whether those steps could properly be described as necessary, reasonable and available to ensure that employees of TNT or Riteway (whether members of the TWU NSW, or only eligible to be such members) comply with the order. Further, each of those persons is required to give written notice to TNT and Riteway by 9.00 am on the morning after the making of the order of what steps he or she has taken in compliance with the clause. An order of such generality and vagueness goes manifestly beyond the notion of an order that industrial action, of whatever kind, stop. It would also go beyond the sphere of any order that industrial action not occur and not be organised.