In the proceedings before the Commission the applicant Transport Workers' Union New South Wales seeks on behalf of its member Mr Con Gatzounas an order against Toll Transport Pty Ltd and the order that is sought as set out in the application is this:
"That the contract that existed between Mr Con Gatzounas and Toll Transport Pty Ltd trading as Toll Priority, be reinstated on the same terms and conditions that existed between the parties prior to the termination of Mr Gatzounas on 12 August 2015."
It follows under the statutory scheme that that order must be also said to be made for a period of one month from the date that it is made and that was accepted by Mr Guy, solicitor for the union appearing today.
I make it clear to the parties here today that what I am dealing with today is a specific application for injunctive relief under a specific statutory scheme provided by the Industrial Relations Act 1996. It is not conciliation; that has been concluded. It is not an unfair termination application under s 314 of the Act that is before me. The tests that apply to an application under s 314 do not apply here. I am not required to and I am not able to consider the fairness or otherwise of the decision to terminate Mr Gatzounas' contract which is challenged in the s 314 proceedings which are also now on foot but not before me today.
I can have regard to that question only in the very broadest sense on uncontested evidence advanced for the purpose of these interlocutory proceedings to assess whether or not there is an arguable case but not otherwise, and I wish to make it clear that this is a matter which will be decided and must be decided according to law and cannot be done otherwise.
The remark I have made earlier about the section 314 application raises one end of a thread to which I will return. That is, whether these proceedings can be characterised as proceedings seeking interim relief in relation to a matter which gives rise to an entitlement to make an application under s 314 and indeed whether this application for interim injunctive relief can be referrable to the s 314 proceedings and the prospects of success in those. I return to that.
Transport Workers' Union of NSW o/b Gazounas v Toll Transport Pty Ltd [2015] NSWIRComm 1018 | Case summary | Zoe
But as to the application brought before me today under s 332, evidence in support of the application was admitted, being the particulars of the application endorsed by an affidavit sworn by Mr Guy, which affidavit was accepted without contest into evidence and was given the marking exhibit 1. I have proceeded to determine the matter before me today on the basis that the facts which are set out in the TWU's application are the facts without contest for the purpose of this interlocutory application.
Now the application which is brought before the Commission today for what is effectively injunctive relief is brought in the context outside the usual application for injunctive relief. That is, it is not brought in terms as equitable relief as it would be in the Supreme Court or another court but it is brought pursuant to a particular statutory scheme which is contained within chapter 6 of the Industrial Relations Act and in particular part 4 of chapter 6 of the Industrial Relations Act 1996. That means that before considering the principles that apply to the provisions of injunctive relief on an equitable basis which were debated in submissions before me today, I turn to the statutory provision.
The application itself is brought squarely under s 332 of the Act and specifically pursuant to s 332(5) of the Act which provides in terms as follows, leaving aside the headnote:
"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"
I interpose above, so those steps are conjunctive, not disjunctive,
"(b) all reasonable steps have been taken to resolve the industrial dispute by conciliation it..."
that is to say the Commission,
"...may make a contract determination express to be an interim determination made under this subsection".
That subsection has got to be read in the context of the section and indeed the part as a whole but the section specifically and I will return to that. But the elements are that if the Commission considers that the public interest is or could be affected and there is another step, an interim determination may be made, what the Commission has got the power to do is to make a contract determination. That is the first question. Whatever the Commission is asked to do in the order that is sought from it must be able to be characterised as a contract determination in the first place or there is simply no power granted under the statute.
In my view a determination ordering reinstatement on a temporary basis, leaving aside any other aspect of the matter to which I will return, would be of itself a contract determination and that is because the term "contract determination" is used to address or cover the order for reinstatement of a contract that is available to the Commission under s 314 of the Act. So to put it in clear terms, if a reinstatement is a contact determination under s 314, subject to what I say below, a reinstatement interim order were to be made pursuant to s 332 of the Act, that could also be characterised as a determination. So that first hurdle is crossed.
The Commission by the word "may" is granted a discretionary power to make a determination but discretion is not unfettered, that is to say, the discretion that the Commission has got is circumscribed, it is hemmed in, by the statutory provisions of 332(5)(a) and (b) that I have read already. s.332(5)(b) is not relevant to today's proceedings, that is to say, the question of whether or not all reasonable steps have been taken to resolve the industrial dispute by conciliation simply does not have any bearing upon the outcome of this matter today. I observe in passing that in my view that is what was done but it does not touch on what we are dealing with today. S.332(5)(a) is in fact the issue.
Subsection (5)(a) requires that the Commission before doing anything, even before indeed considering subsection (b) has to be satisfied that the public interest is or could be affected by a question, dispute or difficulty referred to in s 332(2) or (3) above. The Commission is obliged therefore to turn to the preliminary question of consideration of the public interest because if the public interest is not or could not be affected by a question, dispute or difficulty referred to in the above subsections, there is no power, the discretion is not enlivened, nothing can be done.
So two questions follow. The first is, what is the public interest in the context of s 332 and second, do the facts of this matter, accepting them on the basis that the TWU's application is endorsed by Mr Guy's affidavit, fulfil the definition of the public interest? Noting of course that the matter that has been agitated before the Commission by the union as attracting the public interest was squarely the termination of Mr Gatzounas's contract.
Very well, what is the public interest? In Australian Insurance Employees' Union Ex parte Academy Insurance, 28 IR 214, the High Court in the person of his Honour Justice Dawson, held that the whole of the circumstances must be addressed in determining the question of the existence of a public interest. Well, well and good. In Kellogg Onshore Offshore Certified Agreement, a decision of the full Federal Commission, reported in volume 139 of the Industrial Reports at page 34, that body held, drawing on authority, that the public interest is necessarily by its nature distinct from the interests of the parties and while the public interest and the interests of the parties might be affected the same facts that does not lessen the distinction between a public interest which is observably different to the interests of the parties alone. In Morrison v Chevalley No.2, [2010] NSWIRCom 167 a full bench of the Industrial Court drew a similar distinction albeit in a question arising as to costs between a matter that touches on the interests of the parties alone and therefore could not be said to have a public interest character and one that involved, in that case, the application of legislation and on that second basis it was held a public interest, but not on the first. The point in that case is that a matter touching on the parties only and their own interests only was not regarded as being in the public interest without more.
It was put by the Transport Workers' Union New South Wales that every termination of a contract of carriage is a matter which agitates the public interest. I accept that is the union's position, I understand why it is the union's position, it could not be otherwise that the union would say that to the Commission and to the world but it is not a position which is supported by the authorities and I cannot and do not adopt it. That is, the Commission does not accept the proposition that every termination is, because of the fact of the termination, whether it be a contract of carriage or of employment, for that reason in the public interest. The authorities stand against that proposition and I cannot accept it. Indeed, on the contrary it must be said that is the essence of a private matter, one party's contractual rights under a contract of carriage or a contract of employment or any kind of contract against another; without more there is no public interest in that.
It is my view that in this matter there is no public interest agitated. That being so, I have no power to grant interim relief. There is no utility in my addressing or deciding the questions of the balance of convenience and the like and therefore I do not do so, and nor is there any profit or utility in my determining a submission that was advanced by the respondent that the application has no substance because the industrial dispute, which it was conceded had occurred and had manifested itself in a withdrawal of contract services, was effectively over. That is in fact so, the disputation is concluded and very properly so and the Transport Workers' Union is entirely to be commended for causing the industrial action to cease even before the matter came before the Commission but this question does not turn on that.
As I say, in my view it has not been demonstrated that public interest is agitated and therefore I simply have no power to do anything to assist Mr Gatzounas if that were the proper course. But were I wrong about that, that is to say if I were wrong in my understanding on High Court and other authority of what the public interest means, there is another basis on which I would be obliged to decline to grant the relief sought. That is this - and indeed the first points to it - that lack of a public interest in the individual matter between the parties, directly and in a very real sense points to the question about the applicability of this part of the legislation, that is, s 332 to the case of an individual owner driver's termination. In my view the provisions of part 4 of chapter 6, that is to say the section with which we have been dealing, do not provide a jurisdictional basis, that is to say, they do not provide the Commission with power, for the grant of an interim restoration of a contract where the contractual termination is capable, as it clearly is here because the application has been made, of being challenged under s 314.
I say that for these reasons.
Section 84 and the following sections of the Industrial Relations Act allow the Commission to deal with unfair dismissals in employment. The Parliament has seen fit to include as part of the suite of the powers at s 89(7) a specific statutory ability to grant interim relief which the Commission otherwise would not have - because the Commission is not the Supreme Court - in respect of threatened dismissals, that is, an injunction not to dismiss. Likewise in s 130 of the Act where the Commission, and following where the Commission is given powers to deal with industrial disputes, a power is given to grant restoration of contracts of employment in the context of an industrial dispute.
Now whilst the Parliament has seen fit to include a provision in respect of unfair dismissals that allows effectively injunctive relief to be granted it simply has not provided that in any shape or form in the context of the provisions applicable to contract carriers. The Parliament has expressly chosen not to provide for a statutory basis for restoration of a contract on a temporary basis within the context of s 314 and the surrounding sections. Obviously without a statutory ability to make such an order the Commission just is not empowered to do it, as I say, not being the Supreme Court. But applying the ordinary principles of statutory construction it must be taken that the Parliament made this Act, the Industrial Relations Act 1996, in the full knowledge of all of the provisions of the Act and I cannot accept that the Parliament left a remedy out of the contract of carriage provisions, that is to say, left out of s 314 of the remedies there provided an ability to provide interim temporary relief by way of reinstatement with a contract, all the while expecting that that would be outflanked by using s 332 to provide that provision, or to put it another way, had the Parliament intended there to be a power to grant interim relief in respect of a single termination of a contract it would have said so in the sections to which it turned its mind to providing relief in respect of claims of unfair termination of such contracts and that is particularly so when one considers the matters to which I now turn.
First, the interim orders contemplated under s 332(5) are for one month only. They are clearly designed to deal with the mischief of industrial situations. They are not designed to fit in with and they do not fit in with proceedings in s 314 which will in practical terms almost necessarily take more than a month to come to fruition by way of hearing let alone decision. It cannot be, in my view, that the Parliament determined that a person alleging unfair termination of a contract determination could get a maximum of one month's relief by way of reinstatement which would almost necessarily bring him short of any relief by way of decision under s 314 and at which time, that is to say the end of the month, the contract would once again end. And it would end then by the effect of the expiration of an injunction, not by the termination of the contract by the principal contractor, so that then there would be arguably no ability at all to argue that the contractor had terminated the contract which would render s 314 entirely immotile in any circumstance where an injunction were granted. That cannot be right, but that is the effect of what is sought today. To read s 332(5) to allow injunctive reinstatement for a month of a matter capable of going to be determined under s 314 would be to read an inconsistent or absurd result into the legislation which I simply may not do; see for example Adler v George [1964] 2 QB 7.
Second, the Parliament was well aware of the possibility of giving a power to give interim or injunctive relief in respect of the end of a contract. It had done so in s 89(7), but did not do so here, and again one reads s 332 which is a section dealing with dispute resolution squarely, one reads that in comparison to the Commission's powers in dealing with industrial disputes under s 130. That regime under s 130 dealing with disputes in employment has an express provision to permit the reinstatement of employment contracts in the context of industrial dispute and yet the Parliament has not put that express provision in the suite of remedies provided under part 4 of chapter 6 of the Act. It cannot be in my view that that is an oversight or a blunder, it must be what the Parliament has intended.
The tests that apply in every court in the country for injunctive relief, that is to say, is there a prima facie case, the balance of convenience and the like, refer to nothing at all within s 332, they refer if they refer to anything at all, to the prospects in a proceeding bought under another statutory head altogether, s 314. That fact reinforces the proposition that the section is not designed to, that is s 332 is not designed to and does not, grant power to give relief in cases of individual termination. In my view the degree of detail and specificity in s 314 when it is read in the context of s 84 to 89 of the Act is entirely inconsistent with the proposition that the legislature intended termination of a contract of carriage to be dealt with at all outside s 314 in any way other than those specifically set out in s 314 and certainly not within part 4 of the Act. It follows, and in my view it is the case, that s 314 is a comprehensive code for dealing with contracts seen to be unfairly terminated.
I therefore do not address balance of convenience nor the other matters that would be agitated as being referable to the provision of injunctive relief, because I have no power to grant or consider injunctive relief of the kind sought here. It follows that I decline to make the orders sought.
Can I emphasise this, this is not a decision that has anything to do with the merits of Mr Gatzounas' s 314 claim. I say nothing about that, I have no ability to say anything about that. It is a decision which turns on the specific interpretation of a particular statutory scheme and provisions of the Act. I am obliged to deal with it in that way and I do deal with it in that way but it has no bearing on anything to do with Mr Gatzounas' claim under s 314. I do not know the evidence in that matter expect in the most cursory sense and nothing I have said today should be taken to have any bearing upon the approach that will be taken to that matter by whoever does hear it.
[2]
Orders
1. The application made for an order by the Transport Workers' Union in its application filed on 24 August 2015 is dismissed.
PETER NEWALL
Commissioner
[3]
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Decision last updated: 30 September 2015