Transport Workers' Union of New South Wales v Staples Australia Pty Limited - [2016] NSWIRComm 11 - NSWIRComm 2016 case summary — Zoe

NSWNSWIRComm

Transport Workers' Union of New South Wales v Staples Australia Pty Limited

[2016] NSWIRComm 11

Industrial Relations Commission (NSW)|2016-08-31|Before: Walton J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2016-08-31

Before

Walton J

Catchwords

194 CLR 355 Rail Corp (NSW) v Brown [2012] NSWCA 296

Source

Original judgment source is linked above.

Catchwords

194 CLR 355 Rail Corp (NSW) v Brown [2012] NSWCA 296

Judgment (28 paragraphs)

[1]

tiff M47-2012 v Director General of Security [2012] HCA 46 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Rail Corp (NSW) v Brown [2012] NSWCA 296; 82 NSWLR 318 Re Australasian Meat Industry Employees Union, New South Wales Branch & Ors ex parte Metropolitan Meat Industry Board [1972] 1 NSWLR 259 Re Australian Iron and Steel Limited - Reinstatement of Dobson and others (No. 1) 1958 AR 192 Re Dispute - Broken Hill Pty Co Limited Re Bonus Payments [1971] AR 754 re Dispute at Broken Hill Pty. Co. Ltd. Steelworks, Newcastle (No. 1) [1961] AR 1 Re Dispute - Broken Hill Pty. Co. Ltd. Re Bonus Payments (No. 2) [1971] AR 754 (No. 2) [1971] AR 754 re Dispute; Commonwealth Engineering (N.S.W.) Pty. Ltd. & Clerks' Union re Over-Award Payments (No. 2) [1965] AR 319 Re Federated Engine Drivers & Firemen's Association and Sydney Coal Lumpers' Union re Maritime Services Board (1964) AR 744 Re Ranger Uranium Mines Pty Ltd; ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 456 Shell Refining (Australia) Pty Ltd v The Federated Engine Drivers' and Firemen's Association of Australasia (N.S.W.) [1977] AR 926 State of New South Wales v Chapman-Davis [2016] NSWCA 237 Sydney Water Corporation and Australian Services Union (New South Wales and Australian Capital Territory Branch) [2005] NSWIRComm 305; (2005) 146 IR 388 Transport Workers Union of Australia New South Wales Branch v Conaust Limited (1992) 46 IR 18 Transport Workers' Union of New South Wales v Staples Australia Pty Limited [2016] NSWIRComm 1019 Wright v. Walford [1955] 1 Q.B. 363 Category: Principal judgment Parties: Transport Workers' Union of New South Wales (Appellant) Staples Australia Pty Limited (Respondent) Representation: Counsel: A L Howell (Appellant) J J Fernon SC (Respondent)

[3]

DECISION

The respondent to these proceedings, Staples Australia Pty Limited, operates a business in which it supplies office stationery and supplies. In order to deliver its products, the respondent engaged a fleet of owner-drivers each of whom was engaged under an individual driver agreement. There is no dispute that the drivers, so described, were engaged under a contract of carriage within the meaning ascribed to that expression in Pt 1 of Ch 6 of the Industrial Relations Act 1996 ('the Act'). Those drivers shall be hereinafter described as 'the contract carriers'.
The contract carriers were represented by an elected driver committee. By 19 April 2016, that committee had been engaged in discussions over some time with the respondent in relation to a number of grievances including the rate of pay for home deliveries, box sizes and incorrect delivery addresses. The complaint was that the drivers were not compensated for the time and vehicle costs associated with minor deliveries after changes had been made to the respondent's business model permitting customers to have online orders home delivered. The respondent engaged 46 contract carriers at its Erskine Park site at this time.
By 19 April 2016, it was palpably clear that the contract carriers would not obtain satisfaction from the respondent with respect to their grievances.
On the following day, the contract carriers did not attend for work. Communications were sent by the respondent to the contract carriers on two occasions identifying that they were in breach of their contracts and should return to work. By the afternoon of 20 April there had been no return to work. A communication was sent (practically directly to 42 of the contract carriers as four were on leave) identifying their non-attendance was a breach of the terms of their agreement and stating that a failure to confirm a resumption of work by the following day would result in the respondent considering their "ongoing contractual obligations". A further non-attendance on Thursday 21 April by the contract carriers drew a threat of a termination of the independent contractor agreements: "if you fail to confirm that your company will resume services for tomorrow, unfortunately the company may have little alternative than to consider the ongoing contractual arrangements".
On 22 April 2016, the Transport Workers' Union of New South Wales, the appellant in these proceedings and the representative of the contract carriers, notified an industrial dispute pursuant to s 332 of the Act. The dispute notification contended that the change in the business model of the respondent had led to a reduction in earnings for many of the contract carriers. It was further stated that the overtures of the appellant's delegates had been rebuffed by the respondent and that the "disquiet amongst the drivers [had] led to recent industrial action". The appellant sought the assistance of the Commission. The notification of an industrial dispute shall be referred to as 'the dispute notification' and the resultant proceedings before the Commission 'the dispute proceedings'.
On the same day of the dispute notification, the contract carriers received text messages from management informing them that letters of termination had been sent to them. By means of that correspondence, the respondent terminated 42 drivers' contracts of carriage effective 22 April 2016. The reason given for the termination was that the drivers had refused to perform their work.
The dispute proceedings were listed before the Commission on 26 April. The Commission undertook conciliation of the industrial dispute.
By that time, four contract carriers had entered new independent contract agreements. At the conciliation conference, the respondent offered to interview carriers with a view to offers being made for a new contract.
A text message was sent at 12.30pm on 27 April saying that the respondent was interviewing drivers, that several had signed new contracts and 18 interviews were scheduled for the next day. The communication issued an invitation to drivers as follows: "Should you wish to arrange a time to be interviewed and negotiate a new contract" contact should be made with the respondent.
One day later the appellant filed 23 applications pursuant to s 314 of the Act seeking the reinstatement of the contract carriers along with compensation for loss of income and, pending further order, an interim order that the respondent re-engage and provide work to the carriers on the same terms and conditions as existed on 21 April 2016 (three further applications were filed on 28 April) ('the s 314 applications').
On that same day, the appellant filed a Notice of Motion in the dispute proceedings seeking a joinder of the applications made under s 314 with the dispute proceedings and urgency. The appellant also made an application for an interim order in the dispute proceedings on that date in the following terms (adjusted to fit the style of this decision) ('the interim application'): 1. That an interim determination be made under s 332(5) of the Act ordering that the respondent re-engage and provide work to the contract carriers contracted to it as at 21 April 2016 on the same terms and conditions as existed at that date; 2. That the interim determination shall take effect from the date of the making of the order and shall remain in force for a period of one month.
The s 314 applications and the interim application came before the Commission constituted by Newall C on 29 April 2016. It is tolerably clear the Notice of Motion was before the Commission on that occasion.
It would not appear that any ruling was made with respect to the Notice of Motion. The Commissioner simply indicated that the various applications would "travel together".
Further, an accommodation was apparently reached that the application for interim relief made in the s 314 applications would not be dealt with on that day because a conciliation had not been undertaken under s 315 of the Act. (In any event, the Commissioner considered he had no power to deal with those applications on that day by reason of the absence of a conciliation of the applications and no issue arises in the present proceedings in that respect.)
The Commissioner then proceeded to deal with the interim application. The appellant did not press the application for interim relief with respect to two of the 26 applicants for whom s 314 applications had been made. The Commissioner was advised by the respondent that 14 of the 26 applicants in the s 314 applications had signed new contracts of carriage with the respondent.
In an ex tempore decision delivered on that day in Transport Workers' Union of New South Wales v Staples Australia Pty Limited [2016] NSWIRComm 1019, the Commissioner determined that he did not have power to grant the interim relief sought by the appellant in the interim application. It is the application for leave to appeal and, if granted, appeal from that decision filed on 20 May 2016 which is the subject matter of this decision.

[4]

statutory provisions

It is convenient at this juncture to set out the relevant statutory provisions bearing upon this appeal.
Chapter 6 has the heading "Public vehicles and carriers". Part 1 of that Chapter has the further heading "Application and definitions". As we previously noted, this Part contains a definition for the term "contract of carriage".
Part 2 bears the heading "Contract determinations". Section 311 provides that an application for the exercise of a function of the Commission under the Part may be made by, inter alia, an association of contract carriers or an association of contract carriers that represents bailees or carriers who are, or some of whom are, parties to contracts of the class concerned.
Section 314 deals with the Commission's jurisdiction with respect to the reinstatement of contracts and is expressed in the following terms: 314 Jurisdiction with respect to reinstatement of contracts (1) The Commission may, after inquiry, make a contract determination with respect to the reinstatement of a contract of bailment or contract of carriage that has terminated. (2) Reinstatement of a contract includes re-engagement under a similar contract. (3) A contract determination under this section may be made on such terms and conditions as the Commission thinks fit, including provision for any period after the termination of the contract to be treated as a period of engagement under relevant contracts. (4) If the Commission considers that it would be impracticable to make a determination for reinstatement, the Commission may order the bailor to pay to the driver, or the principal contractor to pay to the carrier, an amount of compensation not exceeding the amount of remuneration of the driver or carrier under relevant contracts during the period of 6 months immediately before the termination of the contract. (5) When assessing any compensation payable, the Commission is to take into account whether the driver or carrier made a reasonable attempt to find alternative engagements and the remuneration received in alternative engagements, or that would have been payable if the driver or carrier had succeeded in obtaining alternative engagements. (6) A contract determination under this section takes effect when it is made, and is not required to have a specified term or to be published on the NSW industrial relations website.
Part 4 of Ch 6 deals with dispute resolution. Section 332 falls within that Part and is in the following terms: 332 Compulsory conference with respect to disputes (1) If subsection (2) or (3) applies or the Commission has reasonable cause to believe that it applies, the Commission may summon a person to a compulsory conference: (a) to confer, or (b) to give evidence, or (c) to produce documents or exhibits, in an endeavour to bring the interested parties to a settlement which will determine the matter in relation to which the subsection applies. (2) This subsection applies if an association registered under this Chapter or a bailor or a principal contractor becomes aware of an industrial dispute that might lead, or has led: (a) to owners of public vehicles being in breach of contracts of bailment of those vehicles or refusing to enter into contracts of bailment of those vehicles, or (b) to principal contractors under contracts of carriage being in breach of those contracts or persons refusing to enter into contracts of carriage as principal contractors, or (c) to bailees of public vehicles or carriers under contracts of carriage being in breach of those contracts, or (d) to persons refusing to enter into contracts as bailees of public vehicles or as carriers under contracts of carriage. (3) This subsection applies if an industrial dispute arising from the reorganisation of the business of a principal contractor affects, or is likely to affect, the number of carriers used by the principal contractor or their remuneration. (4) At a compulsory conference, the Commission is to investigate the merits of the matter concerned, irrespective of whether or not industrial action is taking place. (5) If the Commission considers that: (a) the public interest is, or could be, affected by a question, dispute or difficulty referred to in subsection (2) or (3), and (b) all reasonable steps have been taken to resolve the industrial dispute by conciliation, it may make a contract determination expressed to be an interim determination made under this subsection. (6) An interim determination made under subsection (5): (a) is, as far as practicable, to restore or maintain the conditions existing between the parties immediately before the occurrence of the events giving rise to the industrial dispute, and (b) is to remain in force for such period, not exceeding one month after its making, as is specified in it.
Reference should also be made to the provisions of Pts 1 and 2 of Ch 3 of the Act. In particular, we refer to ss 132, 135(1), 136 and 137 which are set out below: 132 Compulsory conference (1) For the purpose of resolving an industrial dispute, the Commission may convene a compulsory conference and require the attendance of any person whose presence the Commission considers would help in the resolution of the dispute. (2) A compulsory conference is to be presided over by a member of the Commission. (3) The Commission may confer with any person on any matter that may affect the resolution of an industrial dispute, without requiring the person to attend a compulsory conference. 135 Arbitration after attempted conciliation (1) The Commission is to deal with an industrial dispute by arbitration only if it is not resolved by conciliation. 136 Arbitration of dispute (1) The Commission may, in arbitration proceedings, do any one or more of the following: (a) make a recommendation or give a direction to the parties to the industrial dispute, (b) make or vary an award under Part 1 of Chapter 2, (c) make a dispute order under Part 2, (d) make any other kind of order it is authorised to make (including an order made on an interim basis). (2) Any such action may be taken by the Commission on its own initiative or on application by any person authorised to notify the Commission of the industrial dispute. 137 Kinds of dispute orders (1) The Commission may make the following kinds of dispute orders when dealing with an industrial dispute in arbitration proceedings: (a) The Commission may order a person to cease or refrain from taking industrial action. (b) The Commission may order an employer to reinstate or re-employ any one or more employees who were dismissed in the course of the industrial dispute or whose dismissal resulted in the industrial dispute. (c) The Commission may order an employer not to dismiss employees in the course of the industrial dispute if the employer has threatened to do so. (d) The Commission may order a person to cease a secondary boycott imposed in connection with the industrial dispute. (2) If employees are taking industrial action in connection with the industrial dispute, the Commission may order the employees to cease taking that industrial action before it makes any other kind of dispute order against the employer. (3) A dispute order may not provide for the payment of compensation, lost remuneration or any other amount. The gravamen of this appeal is whether, upon the proper construction of ss 332(5) and (6), the Commission has the power to grant the interim application, that is, a power to make an interim order to reinstate or re-engage a contract carrier where the contract has been terminated by a principal contractor pursuant to that subsection.

[5]

the decision of the commissioner

The Commissioner first considered a number of provisions of s 332 which may be described as 'gateway' provisions to the exercise of power under s 332(5).
The Commissioner found that the exercise of a power under s 332(5) was conditional upon satisfaction of the requirements of s 332(2). There was no demur from this conclusion or from the Commissioner's finding that the matter properly met the requirements of s 332(2)(c). It is convenient to set out at this juncture how the Commissioner arrived at those findings.
First, as the respondent correctly put it, there was a dispute about matters affecting or relating to work done or to be done in the industry, namely, the pay structures and changes to the performance of work and, hence, there was an "industrial dispute" within the meaning of that expression under the Act.
Secondly, the dispute led to carriers under contracts of carriage being in breach of their contracts and, accordingly, the industrial dispute was one falling under s 332(2)(c). In this appeal, the appellant did not contest there was such a breach of contract. As the respondent correctly contended, there was no other industrial dispute. (We note, in passing, that no party contended the matter fell within the provisions of s 332(3) of the Act.)
The Commissioner then turned to consider whether the matter met the requirements of s 332(5)(a). He ultimately made no final ruling on that matter but proceeded on the basis that the public interest requirement had been met in the present case (he intimated that it would be open to conclude that the public interest would be affected by a major distribution firm having its business substantially disrupted by 40 small businesses being put out of work for a shorter or longer period of time). There was no dispute on this appeal as to the approach the Commissioner adopted in this respect.
The Commissioner next turned to consider whether the requirements of s 332(5)(b) had been met in the matter before him. He reached an affirmative conclusion in that respect which was not challenged on appeal.
The Commissioner then considered the central issue before him: whether he had the power to grant the interim application in the dispute proceedings pursuant to s 332(5) of the Act. In that respect, the Commissioner understood that the application sought that he make an interim determination "putting all the contract carriers who had contracts with [the respondent] on [21] April 2016 back into contractual relations with the respondent". He understood that the resolution of the question of power raised by the parties essentially involved a question of statutory construction.
There is no disrespect to the decision of the Commissioner to indicate that his decision as to that question may be summarised shortly as follows: 1. Subsections (5) and (6) of s 332 need to be read together. Subsection (6)(b) limits an order for interim relief to a period of one month. When read in that light, the power to grant interim relief is confined to the maintenance of the status quo ante of the subject matter of the dispute, that is, to address the circumstances "where things have changed within contractual relations between the parties". Section 332(5) does not provide for redress with respect to "the ultimate contractual consequences" and, in particular, is not designed to provide for the restoration of terminated contractual relations in the manner otherwise contemplated under s 314 of the Act. To read s 332(5) so as to provide interim reinstatement for a month or less would result in a construction which was productive of an absurd, incongruous or inappropriate result; 2. There is no power to make an interim order for reinstatement under s 314 of the Act. The Parliament should be taken as having an intention not to grant such a power in the case of contract determinations when a comparison is drawn with the powers conferred upon the Commission with respect to unfair dismissal matters. In the latter case, the legislature expressly provided a power for interim relief. Section 89(7) confers on the Commission a power to "give an interim restoration of employment". The same power is exercisable with respect to industrial disputes notified under s 130 of the Act; 3. Section 314 provides a comprehensive code for dealing with contracts which are said to have been unfairly terminated.

[6]

Course of the Appeal Proceedings

The directions made for the hearing of the application for leave to appeal and appeal resulted in the appellant filing submissions as to leave to appeal and the merits of the appeal on 27 June 2016 and, in reply, 22 July 2016. The respondent's submissions on leave to appeal and the merits of the appeal were filed on 12 July.
When the matter was called for hearing on 26 July 2016, counsel who had prepared the written submissions for the appellant did not appear on the appeal. Rather, an appearance was entered for the appellant by Mr A L Howell of counsel. It became clear in Mr Howell's submissions, as he readily accepted, that the oral submissions he was developing represented an entirely new point to that which had been developed in the written submissions on the appeal (further, the contentions were not developed below) ('the fresh point').
It might also be noted, as earlier mentioned, that by the time of the hearing of the appeal a number of the s 314 applications had become otiose as a number of the contract carriers had accepted fresh contracts of carriage with the respondent. Further, the remainder of the s 314 applications (with one exception) had been listed for hearing before the Commission. Both of these considerations featured significantly in the Full Bench hearing the parties on the question of leave to appeal.
In an ex tempore decision delivered on the question of leave to appeal, the Full Bench announced that "it is with a fine margin and not without some reservation that we have decided to grant leave to appeal in the present proceedings".
There were considerable reasons for not granting leave to appeal. Other than providing for adjudication upon a question of construction, the appeal lacked utility. The Notice of Appeal sought an order setting aside the decision below. The only other order sought was a remitter. This could have no practical effect, as there would be no apparent reason why the Commission would embark upon the hearing of interim relief when it was already hearing the substantive s 314 applications.
Further, the Commission should be cautious about expressing advisory opinions, particularly where there was, at least, a potential that the answer to a legal question may turn on its own facts and circumstances.
The factor which tipped the balance of leave considerations in favour of the appellant was the fresh point raised by the appellant orally in the course of submissions on the question of leave to appeal. That submission indicated some potential for error below in a way that was not manifested in the original written submissions of the appellant on the appeal.
It is for that reason the Full Bench announced that it would only grant leave in part. That is, it would grant leave to develop the fresh point that the appellant had raised orally during the course of the leave submissions.
As the respondent had been effectively taken by surprise by the fresh point, the Full Bench took the view that it would order the filing of further written submissions but it did so expressly on the basis that the further written submissions would bring in only the fresh point and "[abandon] the other points which [the appellant had] sought to be ventilated in the proceedings". The Full Bench indicated that, in this way, the matter would be crystallised so as to allow for adjudication upon the fresh point in the light of further written submissions filed.
In the further written submissions, the appellant confined its submissions to Grounds H1 and H2 of the Notice of Appeal which were expressed in the following terms: H. Grounds of the appeal are: The Commissioner erred in finding that he had no jurisdiction to make an interim determination under s 332 of the Industrial Relations Act 1996 requiring the respondent to reinstate or re-engage contract carriers whose contracts were terminated in the course of an industrial dispute. The Commissioner erred in finding that s 314 of the Industrial Relations Act 1996 is a "comprehensive code" for dealing with the termination of contracts of carriage so as to prevent an interim determination being made under s 332 of the Act requiring a contract carrier whose contract has been terminated be reinstated or re-engaged.
Notwithstanding the ruling of the Full Bench on the question of leave, the appellant contended in its written submission that the further written submission (filed on 4 August 2016) "should be read additional to and not in substitution for the Outline of Submissions of the TWU dated 27 June 2016 (the TWU submission), and the outline of submissions of the TWU in reply dated 21 July 2016) filed 22 July 2016 (the TWU reply submissions)". It was indicated, however, that the appellant would address, in the further submissions, just how the earlier submissions would be read in the light of the further submissions.
We consider that the approach of the appellant, in this respect, is not entirely satisfactory and has the potential to result in uncertainty as to how the appellant, in the final analysis, would prosecute its case.
We propose to have regard to the further submissions filed by the appellant on 4 August 2016 in support of grounds H1 and H2 of the appeal as developed in oral submissions with respect to the fresh point and pay heed to earlier submissions to the extent the appellant, in its further submissions, draws particular attention to them.

[7]

Submissions for the Appellant

The submissions filed for the appellant were long and the subject of further development orally.
We propose to convey by way of the following summary that which we consider to be the substance of those submissions: 1. At the outset of the submissions the appellant recognised that the appeal revolved around the proper construction of s 332 of the Act and, in particular, the construction of the words 'contract determination' where those words were used in the phrase "contract determination expressed to be an interim determination" in s 332(5) and the words 'to restore or maintain the conditions existing between the parties' where those words are used in s 332(6)(a). 2. At the outset of its written submissions, the appellant summarised the propositions it wished to put in that respect as being threefold. We will extract those propositions below and shall then deal with the essential points made with respect to each of them in turn: (a) The Commissioner failed to consider what the words "contract determination" where used in the phrase "contract determination expressed to be an interim determination" in s 332(5) meant in the Act, including by failing to have regard to the definition of that phrase in the Dictionary. The Commissioner failed to have regard to relevant context elsewhere within the IR Act, including the scheme for enforcing contract determinations. When the words are given their ordinary meaning and viewed in context, there can be no doubt s 332(5) was empowering a contract determination of the kinds otherwise provided by Part 2 of Chapter 6, including it is submitted that contemplated by s 314, albeit on an interim basis and for a particular purpose. The Commissioner erred (Decision at [20], [22], and [30]) in concluding otherwise. (b) That s 332(5) ought be understood in that way is reinforced when one has regard to its history, including how its predecessors had been interpreted and understood (in particular s 25(5) of the Industrial Arbitration Act 1940, including as understood by the Commission in the Beattie Report that gave rise to initial form of these provisions). (c) The conclusion reached by the Commissioner that s 332(5) would be absurd in its operation if it empowered an interim contract determination reinstating a contract of carriage that had terminated (Decision at [28]) is, with respect, unsustainable. It proceeds on an erroneous understanding of the phrase "that has terminated" in s 314(1). Moreover, it entirely ignores the purpose of the provision, that being to arm the Commission to diffuse an industrial dispute in the public interest (what the Court of Appeal had earlier described as a "cooling off" period when construing its predecessor in s 25(5) of the Industrial Arbitration Act 1940).

[8]

Construction of Aforementioned Phrases in s 332(5) and s 332(6)

As to the first propositions, the appellant's submissions were advanced in two parts, the latter being the fresh point referred in our discussion on leave.
In the submissions advanced prior to the fresh point ('the first contentions'), the appellant submitted: 1. There is no proper basis to read s 332 narrowly. Further, there is no warrant arising from either a contextual analysis or purposive analysis to adopt the narrow or confined construction found in the reasoning of the Commissioner. The power conferred by subs (5) is the power to make a contract determination expressed to be an interim determination made under that subsection. 2. The ordinary meaning of the text of s 332(5) is capable of extending to the making of an interim determination preserving or restoring the engagement of a contract carrier. Section 332(6)(a) indicates that an interim determination made under s 332(5) is "to restore or maintain the conditions existing between the parties immediately before the occurrence of the events giving rise to the industrial dispute". The word 'restore' means simply to "bring back into existence, use, or the like; re-establish". Restoring or maintaining the "conditions" existing before the occurrence of the events giving rise to the dispute is no more than a reference to the circumstances existing before the dispute occurred. 3. If a dispute had resulted in the termination of contract carriers, the "conditions existing between the parties" prior to the dispute were that the carriers were engaged pursuant to contracts of carriage. An order providing for carriers to be re-engaged on the same terms is one which restores the conditions existing prior to the dispute. As a contract of carriage was 'on foot' at the time of the dispute, then the "conditions existing between parties" for the purposes of s 332(6) included the terminated contracts of carriage which could, therefore, be restored under s 332(5). 4. Where a dispute has produced industrial disputation or the mass termination of contracts of carriage, there is no reason why the Commission's powers to preserve or restore the status quo existing prior to the dispute would not extend to ordering the reinstatement or re-engagement of drivers for a period to allow the dispute to be dealt with by the Commission or between the parties. The dispute existed before the termination of the contracts of carriage and, hence, the jurisdiction of the Commission was engaged prior to their termination. In this sense, the termination of the contracts of carriage evolved from the dispute and fell within the Commission's jurisdiction to deal with that dispute under s 332(5), as defined by s 332(6). 5. Once the criteria in s 332(2) or s 332(3) are met, then the Commission is empowered to deal with any matter arising in relation to the dispute, including that of the termination of the contracts of carriage, provided the conditions in s 332(5) and s332(6) were met.
In the contentions advanced on the fresh point, the appellant submitted: 1. In its further submissions, the appellant emphasised the words "a contract determination expressed to be" in subs (5). The phrase "contract determination" is defined in the Dictionary to the Act to mean, inter alia, "a contract determination made by the Commission under Part 2 of Chapter 6". 2. The reference to a contract determination in s 332(5) must be a reference to one of the types of contract determination that might otherwise have been made under Pt 2, albeit made on an interim basis for a particular purpose (s 332(6)(a)) with a limited duration (s 332(6)(b)). 3. This conclusion follows from s 4(1) of the Act which requires that expressions in the Act have the meaning given to them in the Dictionary. It also follows from the provisions of s 6 of the Interpretation Act 1987, as there is nothing in the context or subject matter of s 332 that otherwise indicates or requires that the type of contract determination that may be made and expressed to be an interim determination made under s 332(5) was intended to be different to the type of contract determination found in Pt 2 of Ch 6. 4. The construction is also consistent with an historical analysis of the provisions of Ch 6 particularly by reference to s 25(5) of the Industrial Arbitration Act 1940 ('the I A Act'). 5. The evident purpose of s 332(5) is to enable the Commission to impose a 'cooling off' period in the context of a dispute of the kind contemplated by s 332(2) and s 332(3) where the public interest is seen to warrant the exercise of that discretion (s 332(5)(a)): see News Ltd. & Another v Printing and Kindred Industries Union (New South Wales Branch) & Another [1975] 1 NSWLR 151 at 155 per Samuels J ('News Ltd'). In other words, the legislature considered it appropriate to empower the Commission to restore the status quo. That that might be done to protect the public interest is not absurd as found by the Commissioner. 6. A further contextual indicator that s 332(5) was not intended to create a wholly new and different type of contract determination is the complete absence of any enforcement mechanism for any such new and different instrument. 7. It was an error for the Commissioner to fail to consider how the expression "contract determination" when used in s 332(5) should be understood in the light of Pt 2. This error occurred because the Commissioner focussed attention exclusively upon s 332(6). Particularly, the Commissioner failed to take into account the ordinary meaning of words used in s 332(5) when read in context. 8. Section 314 is within Pt 2 of Ch 6 and empowers the Commission to make the contract determination with respect to the reinstatement of the contract of bailment or contract of carriage that has been terminated. It follows that the Commission does have the power to make a contract determination with respect to the reinstatement of a contract of carriage as contemplated under s 314 expressed to be an interim determination.
As to the effect of a one month order (and its expiration) and the reference by the Commissioner to s 89 of the Act, it was submitted: 1. The conclusion by the Commissioner that the making of an interim order might rob an applicant of rights under s 314 because the contract of carriage had come to an end by the effluxion of time corresponding with the cessation of the interim order is contrary to authority: Deltec International Courier Pty Limited v Transport Workers Union of Australia, New South Wales Branch (1993) 50 IR 341 at 349 ('Deltec'). That decision is authority for the proposition that a predecessor provision operated to grant relief against contracts which had come to an end for whatsoever reason including by the effluxion of time. Additionally, a further interim order could be made at the end of the one month provided for under s 332(6)(b). 2. The comparison drawn by the Commissioner between s 314 and ss 84 and 89 of the Act was wrong in law. Section 89(7) does not provide for an interim restoration of employment. The capacity for the Commission to make interim orders preserving the status quo of the subject matter of the dispute, being the hearing and determination of matters involving employment, including restraining dismissal or reinstating employees, is implied and not expressed: see Hill v Director-General of the Department of Education and Training (NSW) (1998) 85 IR 201 at 206 ('Hill'). A comparison between s 314 and ss 84 to 89 of the Act is, therefore, irrelevant. In closely comparable circumstances involving disputes (ss 136 and 137), the legislature did give the power to make an interim order for reinstatement.

[9]

The Second Contention : Legislative History

The appellant contended that its construction of s 332 was supported by legislative history. It contended that the legislative history demonstrated that at no stage had there been any legislative intention, by the passing of the Industrial Relations Act 1991 ('the 1991 Act'), to so fundamentally alter the scheme of dispute resolution for contracts of carriage from that originally recommended in the Beattie Report, and enacted by amendments so made to the I A Act in 1979, to remove the capacity of the Commission to make a contract determination on an interim basis providing for the reinstatement of a contract of carriage where that was warranted in the public interest. It was contended that the purpose of s 332(5), in the context of Pt 4 of Ch 6 of the Act, was the same as s 25(5) of the I A Act (before amendments made in 1979) as that power was described by the NSW Court of Appeal in Re Australasian Meat Industry Employees Union, New South Wales Branch & Ors ex parte Metropolitan Meat Industry Board [1972] 1 NSWLR 259 ('Metropolitan Meat Industry') and News Ltd.
In particular, reference was made to the following historical considerations: 1. The genesis of Ch 6 of the Act is the amendments made to the I A Act by the Industrial Arbitration (Amendment) Act 1979 ('the 1979 Amendment Act'); 2. Prior to the enactment of the 1979 Amendment Act, the Commission had a power to make orders reinstating an employee, including interim orders of reinstatement. The power under s 25(4) of the pre-1979 I A Act was limited to an order the Commission was otherwise able to make principally under s 20. No submission was made that subs 25(4) conferred a power to make an interim order of reinstatement, although it was submitted that the subsection conferred a power to reinstate per se. An express power was provided to reinstate by s 20A inserted by the Industrial Arbitration (Reinstatement Awards) Amendment Act 1978. 3. Nonetheless, it was submitted that, by 1979, the Commission had jurisdiction to make an award requiring reinstatement on an interim basis: in Re Australian Iron and Steel Limited - Reinstatement of Dobson and others (No. 1) 1958 AR 192 ('Dobson'). 4. The appellant contended that, prior to the 1979 Amendment Act, s 25(5) empowered the Commission to make an order or new award "equivalent to what you see in s 332 albeit in an employee context". It seems that the appellant relied upon the authority of Metropolitan Meat Industry and News Ltd to support a proposition that s 25(5), prior to 1979, provided the scope to make interim orders of reinstatement. 5. Reliance was placed on News Ltd at [155]. It was contended that this decision was authority for the proposition that s 25(5) empowered the Commission to restore the conditions which existed immediately before the occurrence of the relevant event so far as is practicable and that an interim order may re-establish a situation including putting in place arrangements which did not exist when the dispute arose. The power was not limited to strict rights and duties of the parties under the relevant industrial agreement or the incidents of a contract which existed between the employer and some third person at the time of a dispute. Section 25(5) was found to comprehend the broad industrial situation which existed between the parties immediately before the dispute arose. 6. Emphasis was placed upon the report to the Honourable E A Willis, Minister for Labour and Industry, on s 88E of the Industrial Arbitration Act, 1940-1968 insofar as it concerned drivers of taxi-cabs, private hire cars, motor omnibuses, public motor vehicles and lorry owner-drivers by the Commission in Court Session consisting of the President, Justice Beattie, and Sheehy and Sheldon JJ, dated 23 February 1970 ('the Beattie Report') and the 1979 Amendment Act. 7. The 1979 Amendments Act brought in: 1. A definition of 'contract determination' to mean "a determination in a matter in which a Tribunal has jurisdiction". 2. A contract regulation tribunal ('the Tribunal') was empowered to make contract determinations in relation to, inter alia, contracts of carriage. 3. The dispute resolution provisions of s 25 were widened to include contract determinations. This included amendments to s 25(5) regarding interim orders. 1. In para 65 of its written submissions filed on 4 August, the appellant contended that the interim contract determination contemplated by s 25(5), following amendments to the I A Act in 1979, gave power to the Commission to make, as an interim determination, a determination in a matter in which the Tribunal had jurisdiction. The Commission had, therefore, the power to make, as an interim order, determinations available to be made by the Tribunal under Pt VIIIA of the I A Act. The definition of 'contract determination' inserted by the 1979 Amendment Act had the effect of conferring upon the Commission under s 25(5) the power of the Tribunal to make a contract determination under Pt VIIIA of the I A Act. Thus, the mechanism by which jurisdiction was conferred under s 25(5) was the definition of a 'contract determination'. 2. It was submitted that nothing arising out of the 1979 amendments altered the settled understanding of the words "restoring or maintaining, as far as practicable, the conditions existing between the parties immediately before the occurrence of the events out of which the question, dispute or difficulty has arisen or might arise" in s 25(5) as expressed in News Ltd. 3. Further amendments were introduced in 1987 by the Industrial Arbitration (Contracts of Carriage) Amendment Act 1987 ('the 1987 Amendment Act'). Those provisions expressly afforded the capacity in a conciliation commissioner to make an interim contract determination with respect to the reinstatement of carriage that had been terminated. Following the enactment of the 1987 Amendment Act, it was contended, there was the power to make an interim contract determination with respect to reinstatement of a contract of carriage because that was the jurisdiction then conferred upon the Commission under s 91L (as introduced by the 1987 Amendment Act). 4. Reference was then made to the passage of the 1991 Act. In that respect, it was submitted there was no basis in the language, subject matter or purpose of the new s 698 (in Pt 4 of Ch 6 of the 1991 Act), to conclude that a contract determination expressed to be an interim determination under that section was intended to create some new or different type of contract determination from those previously affected by s 25(4) or s 25(5) of the I A Act. The definition of 'contract determination' and its relationship to the equivalent of s 25(5) remained unchanged. 5. The ultimate submission of the appellant is to be found in para 82 of its written submissions filed on 4 August where it was contended that the legislative history demonstrated that, at no stage was there any legislative intention to so fundamentally alter the scheme of dispute resolution for contracts of carriage from that originally recommended by the Commission in the Beattie Report and enacted in the 1979 Amendment Act so as to neuter the capacity to make a contract determination providing for the reinstatement of a contract of carriage that had been terminated on an interim basis where it was warranted in the public interest. 6. Section 332(5) of the Act operates in the same manner as s 25(5) of the I A Act as that former provision was considered in Metropolitan Meat Industry and News Ltd. That is, it is for a 'cooling off' period and a return of the parties to a situation that existed "before the dispute arose" so that during the 'cooling off' period the seeds of friction could be removed in the hope that some agreement or compromise may be fruitfully explored or the dispute be resolved by agreement. 7. The proper approach to subs 332(5) and (6) of the Act is to give meaning to the expression "the conditions existing between the parties immediately before the occurrence of the events giving rise to the industrial dispute" as was given by Samuels J in News Ltd where his Honour referred to "conditions existing". The provisions should be given a broad meaning not limited to strict rights and duties of the parties under a relevant contract, i.e. it should refer to a broad industrial situation.

[13]

Primary Construction Contention

Section 332(5) is concerned with a particular industrial dispute - one of the kind specified in subs (2) or (3). This matter concerned a dispute of the kind described in subs 2(c). Subsection 2(c) relates to an industrial dispute that might lead, or has led, to carriers under a contract of carriage being in breach of their contracts. The dispute in this matter concerned pay structures and changes in the performance of work. Such presupposes an existing contract between parties who are involved in an industrial dispute which has led to a breach of carrier contracts.
The "termination issue" raised by the appellant was not one that might lead to or did lead to a breach of the kind described in subss (2) or (3) and, in particular, breach of a carrier contract. The termination issue was the "ultimate contractual consequence of the dispute" and the Commissioner was correct in distinguishing between a "circumstance where something has arisen which brings the parties into industrial dispute" and statutory redress for the ultimate contractual consequences of that dispute.
The limits of the Commission's powers (or jurisdiction) are "defined by the industrial dispute", in this case, the matters or things that might lead to a breach. The termination dispute was not something "about which there was any subs 2 character" and the Commission did not have power to deal with it.
A dispute about the termination of contract carriers does not constitute a dispute about an 'industrial matter' as it does not relate to matters or things affecting or relating to work done or to be done in an industry.
The appellant's submissions failed to recognise that a compulsory conference convened under s 332 was an endeavour to bring the parties to a settlement of the applicable industrial dispute. This purpose, relating to the applicable industrial dispute, underpins the powers of the Commission in s 332.
Section 332(6) makes it clear that an interim determination is to explore or maintain the condition existing immediately before the events giving rise to the applicable industrial dispute. The Commissioner described this as the "mischief of industrial situations". Whilst the expression "conditions existing between the parties" prior to the dispute in that subsection may refer to the fact that the carrier was engaged pursuant to a contract of carriage, those words need to be read in the context that they operate in relation to a 'dispute' which has enlivened the Commission's jurisdiction under s 332. It is the cause of the industrial dispute rather than its consequence with which s 332 is concerned. The termination issue was the "ultimate contractual consequence of the dispute".
In the passage approved by the Commission in Deltec at 348, Sweeney J, in Greyhound Australia Pty Ltd v Transport Workers' Union of Australia, NSW Branch (1987) 21 IR 388, found that the word 'condition' was not apt to encompass the reinstatement of a terminated contract. In any event, the word 'condition' needs to be read in the light of s 332(1) which indicates that a compulsory conference is to bring "interested parties to a settlement which will determine the matter in relation to which the subsection applies".
Reliance on Hill is misplaced. This does not concern an implied power but the exercise of a power by a court or tribunal to preserve a state of affairs with a view to avoiding an abuse of the Court's process. This is not such a case as the termination of the contracts of carriage had already occurred.

[14]

Contentions on Fresh Point

The appellant's fresh point would appear to be that because a contract determination for reinstatement can be made under s 314 within Pt 2 of Ch 6 of the Act such an interim contract determination can be made under s 332(5). That submission does not take into account the underlying facts and the limitation of the power under s 332(5) to deal with a particular kind of industrial dispute, namely, those found in s 332(2) and s 332(3).
The definition of 'contract determination' in the Dictionary to the Act does not apply to the expression "contract determination" in s 332(5), as the context and subject matter otherwise indicates or requires (per s 6 of the Interpretation Act). The contract determination made under s 332(5) is one made under Pt 4 and not under Pt 2 of Ch 6 as is indicated by the words "an interim determination made under this subsection".
The making of a contract determination under s 332(5) involves an exercise of power of the Commission in a different context and for a different purpose than one under Pt 2. The context of the contract determination in s 332(5) is an industrial dispute of the kind in subs (2) or (3) and orders are made for the purpose of restoring or maintaining conditions to bring about the status quo. A contract determination under ss 312 or 313 is quite different and, generally, to make new terms, or "future looking terms", or, at least, to provide a statutory mechanism for the enforcement of contractual terms. Section 332(5) may enable a "cooling off procedure". However, this power is not at large and is to be exercised in the context of and in relation to an industrial dispute of the kind in subs (2) or (3). The industrial dispute in this case is the one which led contract carriers to breach their contracts. The termination of the carriers' contracts was an action taken as a consequence of the carriers' breach. The termination is not something that might lead to or had led to any breach of contract. The contract is at an end.
In effect, the appellant's submission is that the power under s 332(5) is to be regarded as being "at large" so as to enable an order ameliorating the consequence of a carrier's conduct rather than the industrial dispute at hand - see the remarks of Asprey JA in Metropolitan Meat Industry at 263B-C.

[17]

Legislative History

The respondent made particular submissions in response to the appellant's contentions as to "legislative history" as follows: 1. At best, previous decisions can be persuasive, but the obligation of the Commission is to construe the particular statute put forward in the light of the facts that apply. 2. The legislative history does not demonstrate the appellant's proposition that an order under s 332(5) should be seen as a Pt 2 of Ch 6 type order. 3. In any event, the starting point of the analysis, when reliance was placed on a comparison with s 25 of the I A Act, is flawed. 4. There is no authority for the proposition that an interim order of reinstatement for a contract of carriage was available under the I A Act. In particular, there was no demonstration that the power existed or was used after amendments were made in 1979. Amendments made in 1987 to introduce a power to reinstate contracts of carriage did not create a power to grant interim relief for reinstatement. 5. Even if this was the case, there remains the issue as to the extent of the Commission's power in the light of the industrial dispute with which it was concerned. 6. The provisions of Ch 6 of the Act are differently organised to those in previous industrial legislation. Part 4 is a separate Part of Ch 6, whereas s 25(5) of the I A Act was that Part which dealt with the jurisdiction of Committees, Commissioners and the Commission. There was no reinstatement power in the I A Act of the kind now in s 314. The definition of 'contract determination' is different. The Commission had different powers under s 25(4) - see s 25(4)(a1). 7. The observations of the Commission in Court Session in Re Dispute Broken Hill Pty Limited (No 2) [1971] AR 754 at 764 in relation to s 25 of the I A Act are apposite - "the making of an award either under that sub-section or under sub-s (4) thereof is not a matter that is at large". A conciliation commissioner or tribunal had different powers under the Industrial Arbitration Act. For example, where there was a requisite industrial dispute there was a power to "make any such order in relation to the question, dispute or difficulty as he thinks fit" (see s 25(4)(1a) of the I A Act). A power in these terms is not to be found in the Act.

[19]

CONSIDERATION

The disposition of this appeal turns upon the proper construction of s 332(5) of the Act.
That question of construction is determined by reference to the text, context and purpose of the Act: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]-[71]; Alcan (N.T.) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47] and Military Rehabilitation and Compensation Commission v Benjamin James Edward May [2016] HCA 19 at [10] (and see State of New South Wales v Chapman-Davis [2016] NSWCA 237 at [67]).
The process of construction begins with a consideration of the ordinary and grammatical meaning of the words of the provision having regard to their context and legislative purpose: Australian Education Union v Department of Education and Children's Services [2012] HCA 3; 248 CLR 1 at [26] and Rail Corp (NSW) v Brown [2012] NSWCA 296; 82 NSWLR 318 at [39].
Given the contentions advanced by the appellant in these proceedings, it is also important to emphasise two other rules of statutory construction. First, statutory construction requires deciding what is the legal meaning of the relevant provision by reference to the language of the instrument used as a whole. The task of a court (or tribunal) construing a statutory provision is to give meaning to every word in the provision: Certain Lloyd's Underwriters v Cross [2012] HCA 56; 248 CLR 378 at [24] and Plaintiff M47-2012 v Director General of Security [2012] HCA 46 at [41]. It may be added that the purpose of the statute resides in its text and structure: Certain Lloyd's Underwriters at [25].
Secondly, whilst this Commission must properly apply the rules of construction, these cannot, by themselves, resolve the ultimate question raised in this appeal. The question is whether the words of the statute apply to the particular facts of this case (see Goodrich v Paisner [1957] AC 65 at 88 (per Lord Reid); Griffiths (Inspector of Taxes) v J.P. Harrison (Watford) Limited [1963] AC 1 at 15 (per Lord Reid dissenting) and Wright v. Walford [1955] 1 Q.B. 363 at 374-375).
In the decision below, Newall C found he lacked power to determine an application for the re-engagement of 24 contract carriers (on the same terms and conditions existing on 21 April 2016 in their contract of carriage) by the making of an interim contract determination pursuant to s 332(5) of the Act.
The resolution of the question of whether the Commissioner was correct in that view depends upon the determination of the proper construction of s 332(5) (in the light of the entirety of the words contained in that provision in the context of the whole of the Act) as applied to the facts and circumstances of this particular matter.
The first contention by the appellant fails, in our view, to give adequate attention to the effect of s 332(2) or s 332(3) upon the operation of s 332(5) and s 332(6) in the resolution of the issue of power in this matter. The appellant's submission was, at its heart, that once the particular criteria in s 332(2) and s 332(3) were met, that is, the state of affairs identified in those provisions was found to exist, then the Commission was empowered to deal with any matter in relation to or arising out of an industrial dispute falling within those provisions including a power to make an interim contract determination for the re-engagement of a contract carrier, irrespective of whether the termination of the contracts of carriage fell within the criteria within subss (2) and (3). Further, it was submitted that, as the contract of carriage in this case was "on foot" at the time of the "dispute", the "conditions existing between the parties" for the purposes of s 332(6) were met such that the terminated contracts could be restored under s 332(5). This, again, failed to grapple with the relationship between the provisions of s 332(2) and s 332(6) in this case. We shall develop these considerations below
The appellant's first contention misunderstands the constraints upon the exercise of power under s 332(5) imposed by the operation of s 332(2) or s 332(3). Those provisions are not, as the Commissioner described them, merely "gateway provisions" so that once a situation of that kind can be identified (together with the criteria in subss (5)(a) and (b)), the Commission is "at large" to exercise any power in relation to or arising out of that dispute. This is illustrated by the appellant's submission that the termination of the contracts of carriage (of those persons the subject of the s 314 application) fell within the scope of s 332(5) because the terminations "evolved" out of the dispute, even though the terminations occurred later in time than the breach of contracts by the contract carriers.
We agree with contentions advanced by the the respondent that s 332(5) is concerned with a particular industrial dispute, that is, one of the kind of disputes referred to in subss (2) and (3). It is common ground in this matter that, to the extent the Commission had power in the matter below, it arose with respect to a dispute of the kind described in subs (2)(c). That subsection concerns an industrial dispute that might lead, or has led, to contractors under a contract of carriage being in breach of their contracts. A limit to the Commission's powers (and perhaps jurisdiction) are "defined by the industrial dispute", in this case, the matters or things that might lead to a breach.
Section 332(2) does not constitute a mere set of circumstances or situations simpliciter which, when met, enliven the exercise of power under subss (5) and (6) to make any orders in relation to the dispute, provided the tests in subss (5)(a) and (b), subss (6) and (6)(a) and (b) are met. The powers are constrained by a series of interlocking provisions within s 332. Those constraints and the basis for our considerations in the preceding paragraph appear below: 1. Section 332(2) is not expressed as a provision which contains a set of criteria which stipulate when Pt 4 of Ch 6 of the Act will operate. The opening words of the subsection are "This sub-section applies if an association registered under this Chapter or a bailor or a principal contractor becomes aware of an industrial dispute that might lead, or has led …". By this means, the legislature has indicated that the provisions of the Part are concerned with industrial disputes that might lead to or have led to a particular circumstance or situation which requires regulation. Those are circumstances or situations set out in (a) to (d) of subs (2). 2. The opening words of subs (1) make clear that the operation of the Part is limited to the circumstances to which subss (2) and (3) are directed. However, that subsection also reveals a primary purpose of the provision which is to bring the interested parties to a dispute to a settlement. However, the Commission's "endeavour" to do so is constrained by the words appearing at the end of subs (1) "which will determine the matter in relation to which the subsection applies". In other words, the subsection directs the exercise of the Commission's power to the resolution of the dispute which might lead to one of the circumstances described in subs (2). 3. Subsection (3) is differently expressed. It operates differently in relation to an industrial dispute arising from a particular set of circumstances. The different language employed underlines that subs (2) is concerned with an industrial dispute being causal of the set of circumstances described in subss (2)(a), (b), (c) and (d). 4. The public interest test in subs (5)(a) is not concerned with the public interest at large but, rather, public interest as it may be affected by a question, dispute or difficulty referred to in subss (2) or (3). The legislature confined the consideration of the public interest to industrial disputes that might lead to or have led to a situation described in subss (2)(a), (b), (c) and (d) of s 332. 5. Further discussion is required as to the appellant's second contention as to the meaning of the expression "a contract determination expressed to be". However, that expression is followed by the words "an interim determination made under this subsection". Those words must necessarily draw a connection to the operation of subs (5)(a). Thus, a purpose of the provision is to protect the public interest by dealing with a particular class of industrial dispute, namely, one which might give rise to or has led to the circumstances described in subss (2)(a) to (d). 6. It may be accepted that the expression "conditions existing between the parties immediately before the occurrence of the events giving rise to the industrial dispute" refers to the fact that a carrier was engaged pursuant to a contract of carriage but those words need to be read in their entirety. Consideration also needs to be given to the phrase "the events giving rise to the industrial dispute". The industrial dispute in question is that which is governed by the terms of subss (2) or (3) of s 332. Thus, subs (6)(a) is concerned with the events which caused the industrial dispute rather than the consequences of that dispute.
This brings us to the appellant's second contention. The appellant contended that the words "a contract determination expressed to be" in s 332(5) must be construed, in consequence of the Dictionary definition of the words 'contract determination', as a contract determination made by the Commission under Pt 2 of Ch 6. It is common ground that the construction of those words in the context of s 332 was affected by the provisions of s 6 of the Interpretation Act which requires definitions to be read in context. That provision is in the following terms: Definitions that occur in an Act or instrument apply to the construction of the Act or instrument except in so far as the context or subject-matter otherwise indicates or requires.
Despite the superficial attraction of the second contention advanced by the appellant, we consider that, when the rules of construction, aided by s 6 of the Interpretation Act, are properly applied to the words "a contract determination expressed to be an interim determination" in s 332(5), the contention advanced by the appellant is unsustainable.
The powers exercised by the Commissioner under Pt 4 of Ch 6 of the Act operate in a different context and for a different purpose than the powers conferred under Pt 2. The respondent was correct to submit that the context of the contract determination under s 332(5) is a dispute of a kind described in subs (2) or (3) and made for a purpose of "restoring or maintaining conditions to bring about the status quo". To that may be added that the power is exercised for that purpose in order to protect the public interest (as demonstrated by subs (5)(a)).
Part 2 of Ch 6 bears no such limitation, the power being exercised generally to make contract determinations, as a matter of merit (after inquiry), as to the matters laying within the jurisdiction of the Commission as conferred by that Part, including the power to reinstate a contract of carriage that has been terminated (s 314(1)) (or to affect a re-engagement under similar contract: s 314(2)). We agree with the respondent that the exercise of powers under Pt 2 is essentially for the purposes of establishing new contractual arrangements, including those of reinstatement or re-engagement: see Re Ranger Uranium Mines Pty Ltd; ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 456 at 663-664.
There is a further consideration bearing upon this question, and that is the text of the provision itself. As mentioned above, the words "a contract determination expressed to be an interim determination" in s 332(5) are followed by the words "made under this subsection". By this means, the legislature plainly directs attention to the order being made under Pt 4 rather than Pt 2 of the Act.
The appellant submitted that a construction contrary to its second contention would necessarily mean that there is no enforcement mechanism available for a contract determination made under s 332(5). The respondent's rebuttal of this proposition is correct. The contention does not explain why it is axiomatic that a contract determination under s 332(5) is to be enforced or to be enforced in the manner of a contract determination made under ss 312, 313 or 314. It was further submitted by the respondent that "if enforceability is essential" the appellant needed to explain why the "context or subject matter" did not otherwise "indicate or require" as contemplated in s 6 of the Interpretation Act. We agree.
In accepting those submissions, we should not be taken to indicate that a contract determination made under s 332(5) is not enforceable. That would require a construction of s 8 of the Act in the light of s 332(5) to determine whether the words "a contract determination" in s 8 is constrained to the Dictionary definition of that expression and, thereby, a contract determination made under Pt 2 of Ch 6 of the Act. Part 4 of Ch 6 is focussed upon resolution by settlement and relief in the form of a limited interim order. However, it is unnecessary for us to finally determine that question in this matter.
The provisions of s 332(6) may be examined in the light of the foregoing analysis. That subsection provides that an interim contract determination may restore or maintain the conditions existing immediately before the events giving rise to the applicable dispute. As we have stressed, s 332(1) is concerned with the settlement of a dispute of the kind described in subs (2) (in this case, subs (2)(c)).
The provisions of s 332(2) and s 332(6) presuppose an existing contract of carriage and a dispute between the parties thereto. As the Commissioner found, the interim order contemplated by s 332(5) is designed to address changed circumstances within contractual relations. As we will discuss momentarily in this case, having regard to the provisions of s 332(2)(c), that dispute was confined to issues concerning pay structures and changes in the performance of work.
It is in this light that we return to the question of absurdity raised in the parties' submissions. These submissions revolved around the limitation found in s 332(6)(b) which constrained the duration of an interim contract determination made under s 332(5) for a period of one month.
We consider the Commissioner was correct to have regard to this provision in approaching the construction of s 332. The purpose of s 332 is ultimately to eliminate or ameliorate industrial disputes. The reinstatement of a contract of carriage which had been terminated for breaches of the contract would be contrary to that purpose because the contract of carriage could be terminated at the end of the one month period with the prospect of further and aggravated disputation arising from a fresh termination at that point.
It is highly unlikely, as the Commissioner correctly pointed out, that any proceedings brought under s 314 could be dealt with to finality within the one month period. It is no answer to this concern to raise, as the appellant did, that a further interim order may be made under s 332(5). We agree with the respondent that there would be no power to make such a further order because the Commission is not empowered to do indirectly what it may not do directly. In any event, the prospect of making cascading orders of that kind would seem to be contrary to the purposes of Pt 4 of Ch 6 of the Act. A fresh application would require the Commission to undertake the "endeavour" described in s 332(1) in somewhat farcical circumstances. Any further interim orders (that is, after the expiry of earlier such orders) could not be seen as a means of ameliorating the industrial dispute or, furthermore, achieving the objects under subss (3)(a) and (b) of the Act and, ultimately, may be contrary to the public interest for the purposes of subs (5)(a).
We turn to the facts and circumstances of this matter. The industrial dispute produced a situation of the kind described in s 332(2)(c) in the following circumstances. There was an industrial dispute concerning the change in the business model of the respondent which led to a reduction in earnings for many of the contract carriers. This led to disquiet among the drivers and the taking of industrial action. That industrial action meant that the drivers did not present themselves for work and it is common ground they were, thereby, in breach of their contracts of carriage. It is this sequence of events which led to the lodging of the dispute notification.
Thus far, the circumstances fell squarely within provisions of Pt 4 of Ch 6 of the Act. Section 332(2)(c) presupposes an existing contract between parties in which a dispute arises (in this case, a dispute about pay structures and changes in the performance of work) which led to a breach of contracts of carriage, namely, the non-performance of work. At that point, it would seem the Commission had a power to make an interim contract determination under subs (5) which, having regard to the provisions of subs (6), restored or maintained the conditions existing between the parties immediately before the occurrence of the events giving rise to the dispute, namely, to restore the conditions which were in place prior to the respondent changing its business model resulting in a reduction in earnings. It would also seem to be within the power of the Commission to restrain the non-performance of the drivers' contracts.
All of those circumstances described in the previous paragraph are relevantly prior to the termination of the contracts of carriage. Those terminations (and threats of termination received the day earlier) occurred later in time to the breach, so they could not have led to the breach by the contract carriers. Having regard to our earlier consideration of s 332, and on the facts and circumstances of this case, the termination of the contracts is, therefore, plainly out of reach of s 332(5). The Commissioner was correct to find that the termination issue was the ultimate contractual consequence of the dispute and was not something which constituted the industrial dispute.
The Commissioner was also correct to distinguish between a circumstance where something has arisen which brings the parties into industrial disputation and the statutory redress for the ultimate contractual consequences of that dispute. Indeed, as the respondent submitted, the dispute about the termination of the contracts of carriage was not something which, in the circumstances of this matter, was comprehended by s 332(2). It is inconceivable that the termination of the contracts of carriage would cause the contract carriers to breach their contracts of carriage for the purposes of s 332(2)(c).
In the light of the foregoing conclusions, it is unnecessary for us to consider the respondent's further contention that the making of an interim contract determination for re-engagement would be inconsistent with the provisions of s 314 of the Act. We do, however, have some reservations about the contentions. There is some attractiveness to the appellant's argument that, whilst both s 332(5) and s 314 contemplate the making of a contract determination, the instruments contemplated are conceptually different (one interim and the other not so limited) and are created in different contexts (one by a dispute attracting public interest and the other concerning an application). We would note, however, that those submissions would tend to derogate from the appellant's earlier mentioned submissions as to the operation of s 6 of the Interpretation Act with respect to the expression "a contract determination expressed to be" in s 332(5).
We do propose to deal, however, with the appellant's contention that the express power to make a contract determination with respect to the reinstatement of a contract of carriage that has terminated under s 314, in the circumstances contemplated by s 332(5) is, in substance, entirely consistent with the existence of the power given to the Commission in relation to disputes involving employees under Pts 1 and 2 of Ch 3 of the Act.
There are a number of fundamental difficulties with that submission, as follows: 1. Unlike predecessors to Ch 3 of the Act (which we will discuss below under the heading 'Legislative History'), the Commission's capacity to deal with industrial disputes concerning employees is not constrained by any conditions of the kind found in s 332(2) or s 332(3). The only constraint is that the Commission deal with an "industrial matter" (see the definition of an 'industrial dispute' in the Dictionary to the Act). 2. Nor is the Commission constrained by any of the conditions found within s 332(5) and s 332(6) in making awards or orders in resolution of such industrial disputes, although the Commission is required to generally take into account the public interest in the exercise of its functions under s 146(2). 3. It follows that the appellant's reliance on the capacity of the Commission to make interim orders preserving the status quo or the subject matter of a dispute pending a hearing and determination of an industrial dispute (see Sydney Water Corporation and Australian Services Union (New South Wales and Australian Capital Territory Branch) [2005] NSWIRComm 305; (2005) 146 IR 388 at [33]-[37]) is misplaced. 4. The Commissioner was correct, in the process of the construction of s 332(5), to draw attention to ss 136 and 137 of the Act. Section 136(1)(c) empowers the Commission to make a dispute order under Pt 2 of Ch 3 of the Act. The Commission may make a dispute order for the reinstatement or re-employment of an employee under that Part. Section 137(1)(b) expressly states that that power may be exercised in a case of employees who are dismissed "in the course of an industrial dispute" or whose dismissal "resulted" in an industrial dispute. The language is in stark contrast to the provisions of s 332(2) and s 332(5). 5. To that may be added that there is an express power in the Commission to make an interim order in the context of the operation of powers under s 137(1)(b), having regard to the provisions of s 136(1)(d). 6. In our view, rather than assisting the appellant's case, the comparison with these provisions underlines the limitations in the operation of s 332 in the circumstances of this matter, as we have discussed above. In particular, the legislature has provided in Pt 2 of Ch 3 that the dismissal of an employee may give rise to an industrial dispute or that an employee may be dismissed during the course of an industrial dispute and that such circumstance may require redress by the making of interim orders, namely, interim reinstatement orders under that Part. 7. The absence of any provisions of that kind in Pt 4 of Ch 6 contradicts the appellant's submission that the provisions of s 332(5) would encompass a circumstance where an industrial dispute of the kind referred in s 332(2)(c) may "evolve" into a dispute concerning the termination of contracts of carriage where those terminations have occurred after the breach of a contract of carriage by the contract carriers. 8. We do, however, consider the Commissioner's reliance on s 89(7) of the Act was, in the context of this matter, misplaced, given the provision only concerns a threat of dismissal. 9. The appellant gave significant attention to the legislative history of Pt 4 of Ch 6 of the Act. Given that fact, we shall take some time to consider that history but note, at the outset, that we do not consider that the analysis warrants any displacement of the aforementioned construction of the section and, in our view, only serves to confirm it.

[20]

Legislative History

It was contended by the appellant that the provisions of s 20(1)(e) of the I A Act, when read in conjunction with the definition of industrial matters in s 5(1), conferred authority on the Commission to order the employment or reinstatement of a former employee whose services had been terminated in accordance with law. Whilst there is some contrary authority, we consider that contention to be correct.
The Commission's long held view was there was the power under the I A Act to do so, even though a contrary opinion had been expressed by Cullen CJ (with whom Wade J agreed) in Bank of New South Wales v United Bank Officers' Association and the Court of Industrial Arbitration (1921) 21 SR (NSW) 593 at 611 (see as discussed in North West County Council v Dunn (1971) 126 CLR 247 at 259-260).
Walsh J, in North West County Council, expressed no opinion as to the correctness or otherwise of that view (at 260). Notwithstanding, there was a further confirmation of the jurisdiction by the Commission in Court Session in Australian Consolidated Press v FMWU (No 1) 1973 AR (NSW) 181, it would appear his Honour's ambivalence had created some doubt in the legislature resulting in an amendment to the I A Act introducing the provisions of s 20A: Industrial Arbitration (Reinstatement Awards) Amendment Act 1978.
Section 25 of the I A Act was first enacted as s 9 of the Industrial Arbitration (Amendment) Act 1932.
From that time, the section has provided the powers of the Commission to deal with industrial disputes in a compulsory conference (the expression 'the Commission' shall be used hereafter, where reference is made to the I A Act, to include the exercise of power by a conciliation commissioner, conciliation committee or, pursuant to s 30(1), the Industrial Commission of NSW - see definition in s 5(5)). The scope of the provision was set out in subs (1) which described three industrial situations or threatened situations in which persons may be summonsed to a compulsory conference. The purpose of the exercise of that power was expressed as an endeavour to bring interested parties to agreement which would settle the question, dispute or difficulty.
The three classes of matters which would activate s 25 were: 25. (1) A conciliation commissioner may summon any person to a compulsory conference - (a) where any question has arisen which, in his opinion, might lead to a lockout or strike, or where a lockout or strike has commenced; (b) where there exists any shop, factory, craft, or industry dispute, or any matter which may be a contributory cause of such a dispute; (c) Where there is an actual, threatened, probably, or contemplated cessation of work or employment; …
Those three criteria were inserted in 1932 and remained (with respect to employees) substantially in that form (save for an immaterial amendment) until the repeal of the I A Act. Amendments concerning contract carriers were introduced in 1979 and 1987.
Subsection 25(4) was introduced in a substituted form by the Industrial Arbitration (Amendment) Act 1948. That subsection provided that, when a settlement was not reached, the Commission had the power to make an order or award in relation to the question, dispute or difficulty, which order or award had the "like effect as an order or award made by a committee".
Whilst some doubt was cast upon the authorities by the appellant, the authority dealing with the scope of subs (4) made clear that the power exercisable by the Commission under the provision was not at large, the Commission being authorised only to make orders or awards it was otherwise authorised to make under the providence of the statute: see re Dispute; Commonwealth Engineering (N.S.W.) Pty. Ltd. & Clerks' Union re Over-Award Payments (No. 2) [1965] AR 319 at 333 (per Beattie J) and Re Federated Engine Drivers & Firemen's Association and Sydney Coal Lumpers' Union re Maritime Services Board (1964) AR 744. In most cases this meant that the power which may be exercised under subs (4) corresponded to the powers exercised by a conciliation committee under s 20: N.S.W. Teachers' Federation v Public Service Board (1968) AR 507.
Nonetheless, as we will discuss below, there was clear authority that the Commission had the power to reinstate an employee under s 25(4) and that power extended to the making of interim orders, albeit that there was little discussion as to the provisions of s 25(1) or the source of power to make interim orders under s 25(4).
Subsection 25(5) and s 25(6) were inserted by the Industrial Arbitration (Amendment) Act 1959.
In a decision of a five member bench of the Commission in Re Dispute - Broken Hill Pty. Co. Ltd. Re Bonus Payments (No. 2) [1971] AR 754 at 764, it was found that the power of the Commission to make an award under s 25(5) was constrained in the same manner as subs (4), that is to awards or orders otherwise permitted under the I A Act. That consideration was, with respect to their Honours, correct and supportive of our later discussion as to the limits of the operation of s 25(5) (albeit in the context of our consideration of s 25(1)).
The appellant took the Full Bench to a large number of authorities concerning the scope of the power of the Commission to make an interim order for reinstatement under s 25(5) prior to the 1979 Amendment Act. We shall review those authorities below.
In Dobson, Richards J convened a compulsory conference in connection with the dismissal of four members of the Federated Ironworkers of Australia, New South Wales Division ('FIA'). When no agreement could be obtained, the FIA indicated that it would bring proceedings for reinstatement but in the intervening period sought interim orders for reinstatement.
His Honour (at 192) rejected a submission that interim orders may not be made "in any circumstances". He held (at 192) that, in dispute proceedings, " … an interim award may, in proper circumstances, be made as a temporary measure until the facts in dispute between the parties can be fully litigated and finally determined". It appeared that his Honour was not referring to an express power but an implied power or a power akin to that discussed by Schmidt J in Hill.
In re Dispute at Broken Hill Pty. Co. Ltd. Steelworks, Newcastle (No. 1) [1961] AR 1 ('Broken Hill Steelworks'), the Commission in Court Session (constituted by Richards, Beattie and Kelleher JJ) considered an application for interim orders under s 25(5) of the I A Act reinstating a number of union delegates (the Commission in Court Session was sitting in its original jurisdiction).
The dispute had originated as a small issue as to demarcation of work but quickly spiralled into a substantial dispute involving a strike inflicting great hardship on workers and the public after the dismissal of a delegate of the Amalgamated Engineering Union ('AEU'). The dispute further escalated when 11 other union delegates were dismissed.
The Full Bench accepted the submission by counsel for a union not engaged in the strike (the FIA) that when, in 1958, s 25(5) was inserted into the I A Act, Parliament contemplated that, in a proper case, an interim order restoring a pre-stoppage state of affairs could be made even while the strike was in progress (at 5).
In determining to make an order, the Full Bench found a number of exceptional circumstances including that the industry was vital to the national economy, there was a mass dismissal of union delegates and the application was pressed by unions not engaged in the stoppage whose members were adversely affected by the strike.
The Full Bench made the interim order of reinstatement of the union delegates, subject to an immediate inquiry by the Commission into the facts and circumstances connected with the dismissal (at 6) (those orders also required a return to work). However, the interim orders were not made under s 25(5) but under s 25(4) of the I A Act. That approach was the subject of discussion by Sheehy J in Manson.
In Manson, Sheehy J heard an appeal from the decision of a conciliation commissioner making an interim order of reinstatement in favour of Mr Manson after the respondent had refused a recommendation made by the Commissioner in favour of his re-engagement. The recommendation had been made in the course of dispute proceedings notified because of a stoppage of work over the dismissal. The order was made effective until the hearing of the substantive application concerning Mr Manson's dismissal (at 629).
The appellant in that matter contended that the Commissioner had made an interim order under s 25 which was invalid because the requirements of s 25(5) were not complied with and "that was the only sub-section under which an interim order could be made" (at 630). After referring to the terms of subs (5), his Honour turned to consider the operation of that subsection and the Broken Hill Steelworks' case as follows (at 631): It is to be noted that sub-s. (5) has application only in a limited class of cases i.e. where the public interest may be adversely affected and is designed for the special purpose of restoring the status quo as between the parties to a dispute. It does not seem to me to be the intention to limit the general powers conferred by sub-s. (4) and this was the assumption upon which the Full Bench acted in In re Dispute at Broken Hill Pty. Co. Ltd. Steel Works, Newcastle (No. 1) (1961 A.R. 1). After discussing the effect of sub-s. (5) the Commission, acting under sub-s. (4) and not under sub-s. (5), made interim orders for the reinstatement of certain union delegates pending an inquiry into the facts and circumstances connected with their dismissal (ibid p. 6).
Sheehy J opined that s 25(5) was not a "special prescription on the subject of interim orders" but was designed to "achieve the purpose previously referred to, the power to make an interim order being only incidentally involved" (at 631). His Honour concluded that the Commissioner did not purport to make an order under s 25(5) and that the order can be supported under s 25(4). Hence, the order was found to be valid. It is plain that Sheehy J was emphasising that the primary purpose of s 25(5) was to restore the status quo between parties to "a dispute" where the public interest was adversely affected.
Thus far, none of the authorities cited by the appellant represent the exercise of a power to make an interim order of reinstatement under s 25(5) of the I A Act. The appellant also placed significant reliance upon two authorities: Metropolitan Meat Industry and News Ltd to demonstrate that an interim order for reinstatement may have been made under s 25(5) of the I A Act prior to the 1979 Amendment Act. Those authorities do not, however, offer clear support for that proposition.
In Metropolitan Meat Industry, the NSW Court of Appeal was considering an application by the Metropolitan Meat Industry Board to make absolute an order nisi for a writ of prohibition and certiorari granted by Isaacs J. The applicant sought to challenge an order made by the then Senior Conciliation Commissioner upon grounds which variously challenged the jurisdiction or power of the Commissioner to make an order of reinstatement or an order for the applicant to employ a person.
The order in question was made by the Commissioner pursuant to s 25(5) of the I A Act as that provision stood in 1971. The Commissioner identified that the purpose of issuing the order was to protect the public interest and to restore the status quo so far as a dismissed employee was concerned and "production by members of the unions concerned" (at 261). (There was a strike concerning the dismissal of the employee.) The interim order was expressed in the following terms: "Mr. Hore will be employed by the Metropolitan Meat Industry Board in the night loading-section of Homebush Abattoirs in the same manner as he was entitled to employment prior to the dispute that led to compulsory conference No. 383 of 1971."
The central issue discussed in the judgment of Asprey JA (with whom Taylor AJA and Hardie AJA agreed) was whether the interim order had expired (the order having been made for a period of one month) having regard to the provision of s 87 of the I A Act which, inter alia, provided for continuance of an order or award after expiry of its term.
The Court found (at 262) that s 87 had no operation on the interim award and, accordingly, there was nothing to prohibit, thus resulting in the failure of the application for a writ of prohibition (s 319 of the Act would not, in our view, extend the operation of an interim contract determination made under s 332(5) beyond the period of one month allowed by subs (6)(b)).
In the course of reaching that conclusion, Asprey JA pointed to the distinction between power generally exercised by the Commission for the making of an order or award and an interim award under s 25(5). His Honour stated (at 262) as follows: The legislative intention to be discerned in s. 25 (5) which makes the distinction to which I have referred is plain. The interim order or interim award provided for in s. 25 (5), is intended to be a "cooling off" procedure, if I may use that term, where the public interest is or may be adversely affected by any of the matters referred to in sub-cll. (a), (b) or (c) of s. 25 (1) to enable the difficulties which arise thereunder to be resolved by agreement, or perhaps by an order or award determining the matter under s. 20 (1). (Emphasis added.)
This reasoning accords with our earlier discussion that the scope of power under s 332(5) is constrained by the provision of s 332(1) and s 332(2).
His Honour turned to the application for certiorari stating that, as a general rule, the Court would only exercise its discretion to grant such an application where there was benefit to be derived in the exercise of power. His Honour found that no such consideration had operated in the case before him.
His Honour then made observations as to the operation of s 25(5) having regard to the contentions advanced in the proceedings regarding the jurisdiction of the Commission below. The first was concerning the lack of relationship between s 25(5) and the definition of 'industrial matters' in s 5 of the I A Act, and the second concerned whether the interim order was, in fact, an order for reinstatement. The passage of the judgment, in that respect, was as follows (at 263): Although I need not make any decision thereon, as at present advised, I would not agree that the source of power for the making of an order under s. 25 (5) is to be derived from the definition of "Industrial matters" in s. 5 (1). I think that the power plainly enough derives from the fact that the public interest is, or could be, adversely affected by the existence of some question, dispute or difficulty of the nature referred to in pars. (a), (b) or (c) of s. 25 (1). I also add, without making any decision thereon and as at present advised, that I am of opinion that the question posed by the form of interim order made by Mr. Wells does not relate to the reinstatement of an employee in the employment of the Board, as those terms are usually understood. This was urged upon us as one reason why we should issue the writ of certiorari, that is to say, because of the importance of the legal question involved.
His Honour emphasised the relationship between the provisions of s 25(1) (and the circumstances necessary to attract the operation of the provision) and the power exercisable by the Commission under s 25(5). The interim order below had been made in a context where there had occurred a strike by employees resulting in an industrial dispute (a situation falling within s 25(1)).
The respondent was correct to submit that this passage from Asprey JA's judgment demonstrated that the power conferred under s 25(5) was not at large but concerned an industrial dispute of the kind referred to in paras (a), (b) and (c) of s 25(1) where that dispute adversely affects the public interest.
Asprey JA cast doubt upon whether, in fact, the interim order made was an order for reinstatement and thereby left unresolved the jurisdictional question raised in that respect. In referring to 'employment', it is most likely that his Honour was referring to the fact that the employee, the subject of the order, was a casual employee, so the effect of the order was to require him to be employed for a period of time. It is unclear whether his Honour would consider such an order to be within power.
In the result, Metropolitan Meat Industry does not support the appellant's contentions about the operation of s 25(5). (We do not understand the appellant to place reliance in this appeal upon the determination to grant an interim order by the Senior Commissioner who made the orders under review.) Asprey JA noted that the "source of power" for the making of an order under s 25(5) was derived from the fact the public interest could be adversely affected by the existence of a dispute of the kind arising under subss (1)(a), (b) or (c). This analysis is consistent with our earlier conclusion that the context of a contract determination made under s 332(5) is a dispute of the kind set out in subss (2) and (3) for the protection of the public interest as required under subs (5)(a) and is not, as contended by the appellant, the exercise of all power otherwise available to the Commission under Pt 2 of Ch 6 of the Act.
News Ltd concerned a refusal by employees of News Ltd to undertake work to produce the papers of John Fairfax & Sons Ltd ('Fairfax') (where the employees of Fairfax were on strike) under reciprocal arrangements between the newspapers. The employees of News Ltd refused to produce what the Commission described as "black copy" and they were dismissed.
The Commission (per Cahill J) made orders under s 25(5) having the effect of requiring the conditions existing at the office of News Ltd before the dispute arose to be restored. Specifically, this meant that the employees were not required to handle "black copy". Judgments were delivered by Hutley JA, Samuels JA and Mahoney JA. None of those statements referred to orders having the effect of restoring the employment of those News Ltd employees who had been dismissed.
Hutley JA (at 154) described the exercise of power to make an interim order under s 25(5) by Cahill J below, as follows: " … What he had to do, because he was concerned about the public interest, was to restore, if he considered it possible by practical means, the conditions under which work would take place."
According to his Honour, Cahill J's jurisdiction was to "enable him to restore the conditions existing between the parties immediately before the events out of which the dispute arose, that is, in my opinion, to restore as far as he could, not absolutely, the conditions under which work was taking place in the establishment of the employer".
Samuels JA expressed the view that, for the purposes of s 25(5), "it was necessary to establish what were the conditions existing between the parties immediately before the occurrence of the relevant events there specified" (at 155). According to his Honour this was the first step required under the provision, as immediately after this observation his Honour stated: "Then the subsection empowers the Commissioner to restore those conditions, but only so far as practicable" (at 155). He also found the words "the conditions existing" in s 25(5) do not limit the power which may be exercised to restrict rights and duties of the parties under a relevant agreement or the incidence of a contract which exists between the employer and "some third person" (presumably a reference to the arrangement between Fairfax & Sons Ltd and News Ltd). Rather, as his Honour opined (at 155): They are intended, in my view, to apprehend the broad industrial situation, in all its aspects, which existed between the parties immediately before the dispute arose. Here the events out of which the dispute has arisen were probably the directions to do the John Fairfax work: that constituted the first step in the subsequent dispute. (Emphasis added.)
The appellant sought comfort from these observations but, in our view, his Honour was careful to explain that the restoration or maintenance of the status quo was referrable to "the occurrence of the events" giving rise to an industrial dispute or, to use his Honour's words, "the events out of which the dispute has arisen". Thus, the event was the direction to produce "black copy".
Mahoney JA considered a contention that the order below was beyond power as it was not an order which, pursuant to s 25(5), restored and maintained as far as practicable "the conditions existing between the parties immediately before the occurrence of the events" there specified.
In order to determine that question, his Honour considered the meaning of the word 'conditions', appearing in the phrase "the conditions existing between the parties at the relevant time". His Honour considered the word 'conditions' in that context had one of three possible meanings (or combinations thereof). Those possible meanings were: "(a) the legal stipulations binding the parties in their contract of employment; or (b) the arrangements (whether legally operative or otherwise) regulating the employment; or (c) what the parties were actually doing, and omitting, in the particular context at the relevant time" (at 156).
Mahoney JA agreed that the word 'conditions' in s 25(5) did not support the first approach. He considered that counsel for the applicant had vacillated between the remaining two, without commenting upon which approach was to be preferred. In relation to the third meaning (para (c)), his Honour observed that "it is clear upon the evidence that the union and its members had never at any stage done what was described in the learned Judge's order as "black copy". The parties were not, therefore, actually doing or omitting the particular work in question.
As to the second possible view (the meaning discussed in para (b)), his Honour observed that it was not suggested that there was any arrangement whereby the parties were to carry out the "black copy" work. If that was the case, "whether legally binding or not, then a question might have arisen for decision under this particular issue" (at 156).
It is clear from Mahoney JA's approach that the determination of the scope of the power in a particular case brought under s 25(5) depended upon the facts and circumstances of the particular dispute. This observation supports the submission advanced by the respondent in this case, which we have previously accepted, that the termination of the contracts of carriage did not constitute an industrial dispute and, even if it did, it could not and did not lead to a breach of the type contained in s 332(2)(c) (or, for that matter, subs (2)(a), (b) or (d)) in order for a power to have been exercisable by Newall C under subs (5). It would seem the relevant comparison in the present case is the second meaning discussed by Mahoney JA.
Again, none of the judgments in News Ltd. discussed s 25(5) in the context of an interim reinstatement order.
In Shell Refining (Australia) Pty Ltd v The Federated Engine Drivers' and Firemen's Association of Australasia (N.S.W.) [1977] AR 926, a Full Bench of the Commission considered appeals against orders made pursuant to s 25(5) of the I A Act from Conciliation Commissioner Johnston and an interim award made pursuant to s 25(4). This was not an authority upon which the parties placed reliance.
The background facts may be briefly recorded. The Federated Engine Drivers' and Firemen's Association ('FEDFA') made certain demands on behalf of its members employed at the Clyde refinery of the appellant. Certain bans and limitations were imposed in support of those claims. The bans continued, notwithstanding an order from the Commission to the contrary. Following refusal by certain employees to perform work, the appellant gave written notice to them of termination of employment. There were 20 employees involved. The employees refused to accept the notices of termination and determined to report for their normal duties and to "work-in" on the duties ordinarily performed by them absent the banned work. It followed that on 16 August 1977 a number of employees, due to report on the night shift, were dismissed. On 18 August, the company indicated that the dismissed operators could apply for their jobs back but the company reserved the right to consider whether they would reinstate. That position was amended to indicate that employees would receive their jobs back at the same rate of pay with continuity of service arrangements (at 930). On 22 August, work resumed, the bans were lifted and the 20 men specifically involved were re-employed. The men were not paid for the period of the "work-in" but their re-employment was on the basis that the continuity of their employment would not be affected (at 930).
Thereafter, a further ban was imposed on new equipment. The matter came before Commissioner Johnston with a demand for a withdrawal of certain dismissal notices and the full reinstatement of the 20 employees. That occurred in September 1977. On 13 October, the Commissioner made an interim order under s 25(5) reinstating the employees so as to restore the status quo. After a refusal to obey the orders by the company, the Commissioner made a further order on 25 October directing the appellant to reinstate the 20 persons to their former employment. The interim order was expressed to have an operative period of 21 days (at 932). The Commissioner subsequently made an interim award under s 25(4)(a)(i) of the I A Act which is irrelevant for present purposes.
The Full Bench upheld the appeal and rescinded the interim order because it was invalid and, in effect, "a nullity" (at 933). The reason for that conclusion was that the order made was not authorised by the section because, in terms, "it did not restore or maintain, as far as practicable, the conditions existing between the parties immediately before the occurrence of the relevant events out of which the particular dispute arose" (at 933). The Full Bench's reasoning, in that respect, is set out below (at 933): The company's first appeal challenges the validity and propriety of the order on a number of grounds, which were developed in detail in the argument of senior counsel for the company in the proceedings before us. We have come to the conclusion that one of those grounds, which asserts that the order was not an order authorised by the section because, in terms, it did not restore or maintain, as far as practicable, the conditions obtaining between the parties immediately before the occurrence of the relevant events out of which the particular dispute arose, is fatal to the validity of the order, and we therefore deem it unnecessary to discuss or rule on the other matters raised by the appeal. Under the terms of the order, the company was required to reinstate 20 persons in employment without loss of pay, rights or privileges as from the respective dates of termination. The fact was, of course, that, as the date of the order, the persons involved had long since been reinstated in employment, and there was no shadow of a suggestion that the company intended to change that situation. To make an interim order for reinstatement in such circumstances was obviously quite unnecessary. But the fatal aspect of the order, so far as its validity under s. 25 (5) is concerned, is its requirement that the reinstatement should be as from the relevant dates of dismissals, which had taken place, of course, about a month earlier, without loss of pay, rights or privileges. There is no doubt that what the commissioner saw as the principal obligation arising from his interim order was the payment of the 20 employees by the company for the period of the "work-in". That emerges clearly from his implied criticism of the company failing to make such payment when he made his subsequent interim award on 25th October. But the fact is that payment for such period had never been made by the company, and the issue of whether such a payment should be made was at the very heart of the whole proceedings which had taken place. In his reasons for decision of 11th November the commissioner makes that plain: he refers to the question of payment for the work-in as the "real crux of the dispute". The purported effect of the interim order was therefore to require something to be done which had never been done, and to bring about a state of affairs which had never represented the position at any earlier time. How can such a requirement be a restoration or maintenance of the conditions existing between the parties immediately before the subject dispute arose, as it must be to satisfy the provisions of subs. (5)? The obvious answer is that it can not, and it follows, in our view, that the purported interim order made by the commissioner was invalid and, in effect, a nullity. It is therefore to be treated as though it had never been made and we will formally rescind it as from the date of its making. (Emphasis added.)
By parity of reasoning, as we have earlier discussed, the termination of the contracts of carriage did not pre-date the dispute and the breach. It could not, therefore, have been the subject of an order under s 332(5) having regard to the provisions of s 332(6).
Neither party raised in this case that interim orders sought were orders for re-engagement and that the contract carriers had either been re-engaged or were offered re-engagement at the time the application for orders was heard. We will, therefore, take that issue no further.
Overall, the highest that authorities cited by the appellant, with respect to the I A Act prior to the 1979 Amendment Act, rise to is that, by inference, the Full Bench in Shell might be taken to have accepted an interim order for reinstatement may be made in appropriate circumstances under s 25(5). That failure, in the appellant's analysis, is not, however, the most significant defect in its case. The authorities also make clear that s 25(5) served a particular purpose, different from the general dispute resolution powers conferred under s 25(4). The authorities demonstrated that power to make interim orders under s 25(5) was constrained by the operation of s 25(1). That conclusion arises by direct statements to that effect made in the authorities or by inference because the factual circumstances, upon which the reasoning process proceeded, plainly fell within the scope of s 25(1). There is no relevant similarity between the terms of (a), (b) and (c) of s 25(1) and the provisions of s 25(1)(d) introduced under the 1979 Amendment Act, or now, the provisions of s 332(2).

[21]

The Beattie Report

The appellant adequately summarised parts of the Beattie Report issued in 1970 in the following passages from its written submission of 4 August, as follows (at paras 56-58): 56.The Beattie Report deals with the scope of the regulation it was recommending commencing at paragraph 30.66, Bundle pg 73, with conclusions from 30.71 (Bundle pg 77). For present purposes it is sufficient for the Full Bench to note para 30.76 (Bundle pg 81) where a specific recommendation was made about the scope of arbitration including "there should also be a power equivalent to the reinstatement power in relation to employees", paras 30.79 to 30.82, para 30.84 (insofar as it endorsed an approach by which "the existing provisions of the Act, so far as they were relevant and appropriate, such as the provisions constituting the Industrial Commission and regulating the exercise of its jurisdiction and procedures, would apply in relation to owner-drivers"), and 30.86 to 30.93 in which the Commission explains how it saw some the 1940 Act applying. More generally Appendix 10 outlining in detail how the Commission saw the provisions of the Industrial Arbitration Act applying and/or being varied. 57. The subject of dispute resolution for lorry owner-drivers was the subject of specific consideration from paragraphs 30.94. The Full Bench would note in particular 30.98 (my emphasis): It is clear that there should be for owner-drivers a compulsory conference procedure where stoppages occur, are imminent or likely. It is equally clear, in our opinion, that s.25 and s.25A of the Industrial Arbitration act, which have made great contributions to industrial peace, should be used as models. We think that cl. 13 of the draft submitted by counsel assisting, which proceeds on these lines, is generally satisfactory except that we would alter sub-cl(4) to the extent of specifying that any orders or determinations made must be limited to such as could have been made on application pursuant to the legislation. This accords with the interpretation given to s.25 of the Act in relation to compulsory conferences in employee disputes (In re F.E.D.F.A and Sydney Coal Lumpers' Union [1964] AR 744; Commonwealth Engineering Case [1965] AR at p 333 per Beattie J), and there is much to be said for stating this in the legislation". 58. The Full Bench would also note the recommendation as to the form the variations to the Industrial Relations Act should take at 30.118, being "to deal with owner-drivers and their principals as such and to make provision concerning them in a separate Part of the Act … but to apply to them such other provisions of the Act .. which are appropriate". (Emphasis in original.)
Whilst useful in an historical context, we do not consider these extracts shed any light upon the interpretation of s 332(5). The opinions within the Report merely proposed that provisions akin to those found in the I A Act with respect to s 25 should be the benchmark for new dispute resolution provisions for contract carriers and that that Act should be amended to provide a power to reinstate such contracts. The legislature accepted some but not other recommendations. The newly created provisions under the 1979 Amendment Act need to be considered in their own terms. The extracts give no clear indication as to what the authors of the Report intended with respect to interim orders for reinstatement for contract carriers and, in any event, the appropriate gauge must be the words of the amending Act.

[22]

The 1979 Amendment Act

Following the Beattie Report, the I A Act was amended by the 1979 Amendment Act.
The 1979 Amendment Act brought in provisions for the regulation of contracts of carriage by means of provisions providing a definition of a "contract determination" (per s 3), conferring a power upon the Tribunal to make a contract determination (new Pt VIIIA) and conferring a power upon the Commission for the resolution of disputes between principal contractors and carriers under a contract of carriage (see s 25(1)(d), s 25(4) and s 25(5)). No jurisdiction was conferred upon the Tribunal or Commission for reinstatement of a contract of carriage in Pt VIIIA, equivalent to that now found in s 314.
The appellant contended that there was nothing arising out of the 1979 Amendment Act which altered the meaning previously attributed to the words "restoring or maintaining, as far as practicable, the conditions existing between the parties immediately before the occurrence of events out of which the question, dispute or difficulty has arisen or might arise in s 25(5)" as those words were applied to disputes involving contract carriers.
A number of observations should be made about that submission.
The fundamental difficulty with this submission is that it overlooks the incorporation of s 25(1)(d) in the I A Act and its governance of the operation of s 25(5).
Before expanding upon that consideration, we pause to refer to the judgment of Sweeney J in Greyhound Australia. His Honour found there was no power under s 91L of the I A Act to make a contract determination with respect to the reinstatement of a contract of carriage that had been terminated. His Honour also discussed the capacity of the Commission to make an order for reinstatement under s 25(4) and s 25(5) of the I A Act. He concluded (at 393-394) that no power existed to make a reinstatement order with respect to a contract of carriage under subs (4)(a1) or subs (5) of s 25 because the powers available to the Commission under those provisions were confined to powers otherwise afforded the Commission under the Act. It followed that the absence of a power under s 91L to reinstate a contract of carriage meant that the dispute resolution powers of the Commission were similarly constrained. His Honour made no particular observations about the application of s 25(5).
As we have observed, the power of the Commission to deal with contract carrier disputes under s 25(5) was exercisable with respect to a question, dispute or difficulty as defined by s 25(1)(d). Allowing for some structural differences between the former s 25(1) of the I A Act (after the 1979 Amendment Act) and s 332(1) and s 332(2), s 25(1)(d)(ii) is in identical terms to s 332(2)(b). The submission of the appellant that there was no change in the meaning of the phrase in s 25(5) is to overlook that those words, so far as contract determinations are concerned, dealt with a different class of dispute (as defined by subs (1)(d)) than had formerly been the subject of s 25(5). The significance of that consideration is that the operation of the jurisdiction under s 25(5) was then dependent upon a finding as to the conditions existing between the parties immediately before the occurrence of the question, dispute or difficulty arising under subs (1)(d). Applying the reasoning of Sweeney J to s 25(5), so far as it applied to contracts of carriage, the jurisdiction under s 25(5) was not at large but required consideration of the facts and circumstances giving rise to a dispute within the meaning of subs (1)(d).
We would also observe the powers conferred upon the Commission, when sitting alone, with respect to contract carriers under s 25(4)(a1), were not coextensive with those conferred in the case of employee-related industrial disputes (s 25(4)(a)). Section 25(4)(a1) extended the power of the Commission beyond a power to make a contract determination within the scope of Pt VIIIA to a power to "make such order in relation to the question, dispute or difficulty as he thinks fit".

[24]

1991 Act

The counterpart provisions permitting the making of determinations with respect to contracts of carriage introduced by the 1979 and 1987 Amendment Acts, were, by and large, retained. These provisions were located in Pt 4 of Ch 6 of the 1991 Act. In particular, the capacity to make a contract determination with respect to the reinstatement of a contract of carriage that had been terminated was retained in Pt 4 of Ch 6 (see s 680(3)). The dispute resolution provisions were situated in Pt 6 of Ch 6. Former s 25(5) of the I A Act, so far as it concerned contract carriers, was retained in a restructured form.
The appellant submitted that there was no basis in the language, subject matter or purpose of s 698 of the 1991 Act to conclude that s 698 was intended to create some new or different type of contract determination from those formerly found in the I A Act. That presupposes that the earlier contentions of the appellant as to the history of the I A Act may be accepted. That has not been the case.
In any event, the scheme of the former I A Act was substantially altered by the 1991 Act, with respect to the regulation of industrial disputes.
The approach of the legislature under the 1991 Act was to uncouple dispute resolution provisions concerning employee-related disputes and those concerning contract determinations.
A significant change made by the passage of Pt 6 of Ch 6 of the 1991 Act, when comparison is drawn with the aforementioned I A Act (prior to its repeal), was the abolition of s 25(4) and, in particular, subs 4(a1) relating to contracts of carriage. In the result, there was no capacity for the Commission, under the 1991 Act, to make a contract determination (of the kind available under s 680) in resolution of the question, dispute or difficulty as specified in s 698(2) pursuant to the powers residing in s 680. Thus, so far as industrial disputes between principal contractors and contract carriers were concerned, the 1991 Act confined the Commission's dispute resolution powers as to contracts of carriage to those found in s 698 (which was in similar terms to s 25(5)) and, therefore, the Commission's power was confined to the making of an interim contract determination constrained by, inter alia, the conditions set in subss (6) and (7) thereof.
Section 25(5) of the I A Act, after the passage of the 1987 Amendment Act, provided that, with respect to a question, dispute or difficulty in the nature referred to in subs (1)(d), that the Commission may make an "interim order or contract determination", or the Commission or Tribunal "may make an interim order or contract determination, expressed to be made under [the] subsection to have force and effect for the period not exceeding one month". The provisions of s 698(6) of the 1991 Act provided the power in the Commission to make "a contract determination expressed to be an interim determination made under this subsection".
The Commission retained a dispute resolution function under Div 2 of Pts 1 and 2 of Ch 3 of the 1991 Act, although the powers were significantly constrained in comparison with the powers exercisable by the Commission under s 25 of the I A Act with respect to rights "settled" by an extant award or agreement. Similar powers to those found under s 25 of the I A Act remained with respect to industrial disputes or, inter alia, rights which had not been settled (see Pt 2).
In our view, the aforementioned changes to the former dispute resolution powers of the Commission under the I A Act introduced by the 1991 Act must result in a rejection of any contention by the appellant that the powers of the Commission regarding the resolution of disputes concerning contract carriers after 1991 maintained any relationship or connection with those exercised with respect to employees. We have earlier commented that, in any event, s 25(5) operated upon its own terms apart from the Commission's powers under s 25(4) of the I A Act. After the passing of the 1991 Act, s 698 operated as a singular and special provision for the resolution of disputes concerning contracts of carriage. Legislative history may be a valuable guide to the construction of a statute, but care should be taken in circumstances, such as those demonstrated here, where the historical continuum is broken by significant amendments. We further observe that legislative history cannot avail to displace a clear meaning provided by the text of a provision as we have earlier discussed.
The appellant also relied upon the judgment of Peterson J in Transport Workers Union of Australia New South Wales Branch v Conaust Limited (1992) 46 IR 18 in which his Honour considered an application for an interim order under s 698 of the 1991 Act. The submission was advanced by the respondent in that matter that there was no jurisdiction to make the orders sought because those orders could not be wider than an order available to be made with respect to a general contract determination. His Honour did not decide that point but, rather, assumed the existence of the power to make an interim determination and then determined that there was no case on the merits to make such a determination (at 20).
In coming to that view, his Honour held that the interim determination must have "some legal and practical effect". This required the determination to restore and maintain "the current position by creating conditions equivalent to those prevailing between the parties immediately before the occurrence of the events out of which the question, dispute or difficulty has arisen or might arise". In the instant case, his Honour held the status quo ante would require the reinstatement of the operators of the Rozelle depot of the respondent to their former level. However, the effect of the order would be to ensure that all work available from sources usually worked by the contract carriers would be supplied. Yet, as his Honour found, the respondent was already supplying them with such work albeit limited to what had previously been provided in the circumstances. Thus, the relationship which earlier existed continued to exist, the only difference being the volume of work.
For these reasons, we do not consider TWU v Conaust offers authority for the resolution of the issues presently before us.

Transport Workers' Union of New South Wales v Staples Australia Pty Limited

At a glance

Court

Decision date

Before

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Source

Catchwords

Judgment (28 paragraphs)

Parties

Cases Cited (20)