FEDERAL COURT OF AUSTRALIA
United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board [2006] FCAFC 84
INDUSTRIAL LAW – appeal - penalties imposed by s 178 of Workplace Relations Act 1996 (Cth) (“the Act”) – whether power to impose penalties – whether Industrial Relations Commission (“Commission”) had jurisdiction to make orders – construction of dispute resolution clause in Certified Agreement – whether application for Constitutional writs is an “appeal” – whether Commission precluded from dealing with dispute because prior reference of dispute to Federal Court – whether s 127 of the Act contains an exclusive code - whether reference to ‘orders’ in s 178 of the Act include those made under s 127 of the Act
Words and Phrases – “appeal” – “order”
Conciliation and Arbitration Act 1904 (Cth) – ss 70J, 119(1)
Industrial Relations Act 1988 (Cth) – ss 127, 178
Workplace Relations Act 1996 (Cth) – ss 127, 178
Workplace Relations Amendment (Work Choices) Act 2005 (Cth)
Workplace Relations and Other Legislation Amendment Act 1996 (Cth)
Amcor Limited v Construction Forestry Mining & Energy Union [2005] HCA 10 referred to
Ansett Australia Limited v Australian Licensed Aircraft Engineers’ Association [2003] FCAFC 209 referred to
BHP Steel (AIS) Pty Limited v Construction, Forestry, Mining and Energy Union v Gordonstone Coal Management Pty Limited (1998) 91 FCR 1 cited
Branir Pty Limited v Owston Nominees Pty Limited (No 2) (2001) 117 FCR 424 cited
Coal & Allied Operations Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 distinguished
Coal and Allied Operations Pty Limited v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (1997) 73 IR 311 cited
Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2000) 203 CLR 645 cited
Construction, Forestry, Mining and Energy Union v Gordonstone Coal Management Pty Limited (1998) 91 FCR 1 cited
Coulton v Holcombe (1986) 162 CLR 1 cited
Kucks v CSR Limited (1996) 66 IR 182 cited
Re Griffin; Ex parte Professional Radio & Electronics Institute of Australia (1988) 167 CLR 37 referred to
Short v FW Hercus Pty Limited (1993) 40 FCR 511 cited
Turnbull v New South Wales Medical Board (1976) 2 NSWLR 281 cited
Tweed Valley Fruit Processors Pty Limited v Ross (1996) 137 ALR 70 cited
UNITED FIREFIGHTERS’ UNION OF AUSTRALIA AND PETER MARSHALLv METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD
VID 558 of 2005
UNITED FIREFIGHTERS’ UNION OF AUSTRALIA AND PETER MARSHALLv METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD
VID 1188 of 2005
NICHOLSON, JACOBSON AND LANDER JJ
30 MAY 2006
MELBOURNE
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
VID 558 of 2005 |
On Appeal from a judgment of the Court constituted by Justice Ryan
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BETWEEN: |
UNITED FIREFIGHTERS’ UNION OF AUSTRALIA FIRST APPELLANT
PETER MARSHALL SECOND APPELLANT
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AND: |
METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD RESPONDENT
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JUDGES: |
NICHOLSON, JACOBSON AND LANDER JJ |
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DATE OF ORDER: |
30 MAY 2006 |
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WHERE MADE: |
MELBOURNE |
THE COURT ORDERS THAT:
The appellants be granted leave to discontinue the proceedings.
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
VID 1188 of 2005 |
On Appeal from a judgment of the Court constituted by Justice Ryan
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BETWEEN: |
UNITED FIREFIGHTERS’ UNION OF AUSTRALIA FIRST APPELLANT
PETER MARSHALL SECOND APPELLANT
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AND: |
METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD RESPONDENT
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JUDGES: |
NICHOLSON, JACOBSON AND LANDER JJ |
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DATE OF ORDER: |
30 MAY 2006 |
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WHERE MADE: |
MELBOURNE |
THE COURT ORDERS THAT:
1. The appeal be dismissed
2. Pursuant to s25(2)(d) of the Federal Court Act 1976 (Cth) (“the Act”), there be a stay of thirty (30) days on the payment by the appellants of the penalties imposed in VID118/2005.
3. The respondents be granted liberty to apply on the question of costs.
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
VID 558 of 2005 |
On Appeal from a judgment of the Court constituted by Justice Ryan
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BETWEEN: |
UNITED FIREFIGHTERS’ UNION OF AUSTRALIA FIRST APPELLANT
PETER MARSHALL SECOND APPELLANT
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AND: |
METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD RESPONDENT
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JUDGE: |
NICHOLSON, LANDER & JACOBSON JJ |
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DATE OF ORDER: |
30 MAY 2006 |
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WHERE MADE: |
MELBOURNE |
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IN THE FEDERAL COURT OF AUSTRALIA |
|
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VICTORIA DISTRICT REGISTRY |
VID 1188 of 2005 |
On Appeal from a judgment of the Court constituted by Justice Ryan
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BETWEEN: |
UNITED FIREFIGHTERS’ UNION OF AUSTRALIA FIRST APPELLANT
PETER MARSHALL SECOND APPELLANT
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AND: |
METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD RESPONDENT
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JUDGE: |
NICHOLSON, LANDER & JACOBSON JJ |
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DATE OF ORDER: |
30 MAY 2006 |
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WHERE MADE: |
MELBOURNE |
REASONS FOR JUDGMENT
Introduction
1 This is an appeal from a judgment and orders of Ryan J dated 5 September 2005 imposing penalties on the appellants under s 178 of the Workplace Relations Act 1996 (Cth) (“the Act”) as it then stood. We will refer to this judgment as “the penalties judgment”; see [2005] FCA 1231.
2 His Honour imposed the penalties for breach of an order made by Commissioner Foggo of the Australian Industrial Relations Commission (“the Commission”). Commissioner Foggo’s order was made under s 127 of the Act on 20 April 2005.
3 Commissioner Foggo’s order was a direction that industrial action not occur. It was directed to the United Firefighters’ Union of Australia (“the UFU”) and its officials, and the Metropolitan Fire & Emergency Services Board (“the MFESB”) and their employees. Mr Marshall was an official of the UFU. The order directed the parties not to impose work bans in relation to “approved changes” to their conditions of work under the Metropolitan Fire & Emergency Services Board, United Firefighters’ Union of Australia, Operations Staff Agreement 2002 (“the Certified Agreement”).
4 The “approved changes” were workplace changes proposed to be introduced by the MFESB which were approved by the Commission in a decision of Commissioner Simmonds given on 16 August 2004.
5 In a judgment given on 17 May 2005, Ryan J exercised his discretion under s 127(6) of the Act to grant an injunction restraining the appellants from imposing bans directed to the performance of work in relation to the approved changes; see [2005] FCA 621 (“the injunction judgment”).
6 On 18 May 2005, his Honour made orders pursuant to the injunction judgment, but the injunction ordered by Ryan J expired on 1 August 2005.
7 The appellants sought leave to discontinue the appeal against the injunction judgment on the morning of the hearing. The court indicated that it would give leave to discontinue, and would so order when handing down these reasons. However, the reasons given in the injunction judgment bear upon the issues which arise on the appeal against the penalties judgment.
8 The appellants claim that Ryan J had no power to impose the penalties. They rely on four separate arguments, raised by an amended notice of appeal.
9 First, the appellants submit that Commissioner Foggo had no jurisdiction to make the order of 20 April 2005. This issue turns upon the proper interpretation of Clause 12 of the Certified Agreement and, in particular, upon the meaning of the word “appeal” in that clause.
10 The appellants contend that the word “appeal” in Clause 12.7 includes an application to the High Court, in its original jurisdiction, for the issue of Constitutional writs under s 75(v) of the Constitution.
11 This issue arises because on 7 April 2005, nearly two weeks before Commissioner Foggo’s orders, the appellants filed an application in the High Court for the issue of Constitutional writs having the effect of quashing Commissioner Simmonds’ order approving the workplace changes.
12 Clause 12 of the Certified Agreement, which is set out in full below, contains procedures for the resolution of disputes between the parties. It provides in Clause 12.9 that while the dispute resolution procedures are being followed, the workplace practices in force prior to the raising of a grievance are to continue. Clause 12 sets out a five step procedure for resolving disputes or grievances. The fifth step, contained in Clause 12.7, is referral to the Commission or a court for determination. It concludes with the words “any determination includes access to appeal”.
13 Thus, the effect of the appellant’s first submission is that the workplace changes approved by Commissioner Simmonds on 16 August 2004 were not in effect until the determination of the application to the High Court for Constitutional writs. If so, Commissioner Foggo had no power to make the order of 20 April 2005 and Ryan J wrongly assumed the validity of Commissioner Foggo’s orders when he imposed the penalties.
14 The appellants’ second submission is that Commissioner Foggo’s order was invalid for a further reason. This is that the proceedings in the Commission which resulted in Commissioner Simmonds’ order were instituted by the MFESB on 17 March 2004, one month after the UFU had commenced proceedings VID 151 of 2004 in the Federal Court. Those proceedings, commenced on 17 February 2004, claimed penalties against the UFU under s 178 of the Act for breaches of the Certified Agreement. The breaches were said to be the introduction of the proposed workplace changes.
15 The appellants contend that the filing of proceedings VID 151 of 2004 was a reference to an “other body or court” within the meaning of Clause 12.7 which precluded the subsequent reference to the Commission by MFESB. This issue was not raised by the UFU in the proceedings before Ryan J, although his Honour referred to it at [64] of the injunction judgment solely on the question of the exercise of discretion. The appellants seek leave to raise this issue on appeal. The MFESB opposes leave. We propose to grant leave for the reasons stated briefly below.
16 The third and fourth submissions turn upon the proper construction of ss 127 and 178 of the Act. Section 127(6) and (7) conferred power on the Court to grant an injunction. Section 178 conferred power on the Court to impose penalties for breach of an order of the Commission.
17 The appellants submit that the order of Commissioner Foggo under s 127 of the Act was not an order of the Commission within the meaning of s 178.
18 The appellants also submit that s 127 of the Act contained a code in relation to the enforcement of orders made under that section, to the exclusion of other enforcement mechanisms such as those contained in s 178 of the Act.
The Legislation
19 The main provisions of the Act, as then in force, which fall for consideration on the appeal are s 127 and s 178(1).
20 Section 127 of the Act provided:-
“(1) If it appears to the Commission that industrial action is happening, or is threatened, impending or probable, in relation to:
(a) an industrial dispute; or
(b) the negotiation or proposed negotiation of an agreement under Division 2 of Part VIB; or
(c) work that is regulated by an award or a certified agreement;
the Commission may, by order, give directions that the industrial action stop or not occur.
(2) The Commission may make such an order of its own motion, or on the application of:
(a) a party to the industrial dispute (if any); or
(b) a person who is directly affected, or who is likely to be directly affected, by the industrial action; or
(c) an organisation of which a person referred to in paragraph (b) is a member.
(3) The Commission must hear and determine an application for an order under this section as quickly as practicable.
(4) The powers conferred on the Commission by subsection (1) are in addition to, and not in derogation of, the powers conferred on the Commission by the rest of this Act.
(5) A person or organisation to whom an order under subsection (1) is expressed to apply must comply with the order.
(6) The Court may, on the application of a person or organisation affected by an order under subsection (1) or grant an injunction on such terms as the Court considers appropriate if it is satisfied that another person or organisation:
(a) has engaged in conduct that constitutes a contravention of subsection (5); or
(b) is proposing to engage in conduct that would constitute such a contravention.
(7) If, in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (6).”
21 Section 178(1) of the Act provided:-
“(1) Where an organisation or person bound by an award, an order of the Commission (whether under this Act, the Registration and Accountability of Organisations Schedule or otherwise) or a certified agreement breaches a term of the award, order or agreement, a penalty may be imposed by the Court or by a court of competent jurisdiction.”
The Certified Agreement
22 The relevant provisions of the Certified Agreement are Clause 9 which deals with consultation, Clause 12 which deals with dispute resolution, and Clause 49 which deals with extra claims. Those clauses are set out in full at [3], [4] and [34] of the injunction judgment. We will not set out Clauses 9 or 49 but we will reproduce the whole of Clause 12.
23 Clause 9 provides, relevantly, that the parties to the Certified Agreement are committed to effective consultation through an Enterprise Bargaining Implementation Committee (“EBIC”). The EBIC is to consider matters relating to the introduction of workplace change.
24 Clause 9 also provides that any dispute concerning either party to the Certified Agreement is to be dealt with in accordance with “the Disputes and Grievance Clause”. That clause is embodied within the provisions of Clause 12.
25 Clause 12 provides:-
“12. DISPUTE RESOLUTION
12.1. To ensure effective consultation between the employer, its employee(s) and the union on all matters pertaining to the employment relationship, including the application of this agreement, the following procedure shall be followed in an effort to achieve a satisfactory resolution of any dispute or grievance:
12.2 Step 1 The dispute shall be submitted by the employee representative and/or employee(s) to the employee's immediate supervisor.
12.3 Step 2 If not settled at Step 1, the matter shall be submitted to the appropriate senior officer.
12.4 Step 3 If not settled at Step 2, the matter shall be recorded. The matter shall be submitted to the appropriate delegated Industrial Representative of the employer for consultation.
12.5 Steps 1 – 3 Must be concluded within a period of ten (10) consecutive days.
12.6 Step 4 If the matter is not settled at Step 3, the dispute shall be formally submitted in writing to the Manager Employee Relations, setting out details of the dispute and, where appropriate, with supporting documentation. The Manager Employee Relations shall convene a meeting of the parties within a period of one week (7 days) of receipt of such submissions and endeavour to reach a satisfactory settlement.
12.7 Step 5 If the matter is not settled following progression through the disputes procedure it shall be referred by any party, to an agreed arbitrator. If there is no agreed arbitrator within 4 weeks, the matter will be referred directly to the Australian Industrial Relations Commission for decision or determination of change; or other body or court for conciliation/mediation and if necessary for determination. Any determination includes access to appeal.
12.8 Notwithstanding the words contained in clause 12.2, the steps of the procedure apply equally to a dispute raised by an employee or Officer in Charge.
12.9 While the above procedures are being followed, work must continue in accordance with the existing situation or practice that existed immediately prior to the subject matter of the grievance or dispute occurring. No party shall be prejudiced as to the final settlement by the continuance of work in accordance with this sub-clause.
12.10 This clause shall not apply to a dispute on a Health and Safety issue.”
26 Clause 49 provides inter alia that the MFESB will make no extra claims prior to the normal expiry date of the Certified Agreement.
Background Facts
27 The Certified Agreement was certified, pursuant to Div 2 of Part VIB of the Act, on 28 November 2002. It came into force on that day and remained in force until 1 August 2005.
28 At some time before about the end of 2003, the MFESB sought a number of workplace changes. As the learned primary judge observed, those changes were given five separate shorthand titles. It is unnecessary to repeat them. They are set out in the injunction judgment at [5]. There were two other proposed changes but they were apparently resolved during a conciliation process in the Commission.
29 During late 2003 and early 2004, the five workplace changes were the subject of discussions between the MFESB and the UFU under the grievance procedure in Clause 12 of the Certified Agreement.
30 On 17 February 2004, the UFU commenced proceedings VID 151 of 2004 in the Federal Court. The UFU contended in the application and statement of claim filed in those proceedings that the workplace changes constituted extra claims in breach of the Certified Agreement. The proceedings were listed for hearing commencing on 25 July 2005 before Marshall J.
31 On 17 March 2004, the MFESB referred one of the five workplace changes to the Commission. The referral was assigned to Commissioner Simmonds.
32 The UFU objected to the jurisdiction of the Commission, apparently on the ground that proceedings had already been commenced in the Federal Court. On 21 May 2004, Commissioner Simmonds held that the Commission did have jurisdiction. The UFU sought leave to appeal from the decision but the application was later withdrawn.
33 On 26 May 2004, the MFESB referred the remaining four of the five workplace changes to the Commissioner under Clause 12 of the Certified Agreement.
34 Although no formal order was made, the matters were heard concurrently by Commissioner Simmonds on the 12th, 13th and 15th July 2004. The hearing commenced some 13 days before the date fixed for the hearing by Marshall J of Matter VID 151 of 2004.
35 On 16 August 2004, Commissioner Simmonds handed down his decision ruling that the workplace changes must be implemented.
36 A Full Bench of the Commission refused leave to appeal from Commissioner Simmonds’ decision on 10 March 2005.
37 The UFU’s proceeding in the High Court seeking the issue of Constitutional writs against the decisions of Commissioner Simmonds and the Full Bench was filed on 7 April 2005.
38 Commissioner Foggo’s order was made on 20 April 2005. The terms of the order are set out in the injunction judgment at [21]. The Commissioner ordered that the MFESB and its employees and the UFU and its officials must not impose or give effect to any ban on the performance of work in relation to the five workplace changes the subject of Commissioner Simmonds’ decision of 16 August 2004.
39 On the same day, 20 April 2005, the UFU issued a bulletin to its members and the MFESB issued its own bulletin to employees. The contents of the bulletins are set out in the injunction judgment at [25] – [26].
40 The UFU’s bulletin stated that the UFU regarded Commissioner Foggo’s decision as flawed and that it proposed to challenge the order “in order to preserve the previous status quo”. The bulletin stated that any queries were to be directed to Mr Marshall. He was a Branch Secretary of the UFU.
41 The MFESB’s bulletin stated that Commissioner Foggo had ordered that there was to be no industrial action to hinder the implementation of the five workplace changes. The bulletin also stated that the “status quo” was the determination of Commissioner Simmonds of 16 August 2005, that is to say, upholding the workplace changes.
42 On 26 April 2005, the UFU issued a further bulletin to its members referring to the institution of the proceedings in the High Court. The bulletin stated that because of the High Court proceeding, the dispute resolution procedure in Clause 12 of the Certified Agreement was not at an end. It continued by stating that “the MFESB is under a legal obligation to refrain from implementing the matters in dispute…”. Members of the UFU were again requested to direct any queries to Mr Marshall.
43 The proceedings in the High Court were remitted to the Federal Court by an order dated 2 June 2005 by Justice Hayne (High Court File M30/2005). However, on 2 May 2006, leave was granted to the UFU to discontinue the remitted proceeding.
The primary judge’s decision in the injunction case
44 His Honour approached the question of construction of the Certified Agreement in accordance with the principles stated by Madgwick J in Kucks v CSR Limited (1996) 66 IR 182 (“Kucks”) at 184. The learned primary judge set out at [41] the relevant passage from Kucks and he referred to Full Court and High Court authority in which Madgwick J’s statement of the principles has been adopted.
45 Ryan J came to the view, at [53], that the ability to obtain judicial review of a decision is not to be equated with “access to appeal” under Clause 12.7 of the Certified Agreement. He considered that a decision made in the exercise of a court’s supervisory jurisdiction does not determine a matter; it only resolves a jurisdictional question of whether the decision-maker had power to make an order.
46 In coming to that view, his Honour looked primarily to the context of the words “access to appeal” in Clause 12 of the Certified Agreement. He also drew support, by analogy, from the meaning of “matter” in s 75 of the Constitution. His Honour did so because the word “matter” appears twice in Clause 12.7 of the Certified Agreement.
47 The learned primary Judge concluded at [54] that even if the decision of Commissioner Simmonds were to be set aside in the High Court proceedings, there would be no determination of the matter. He said that it was this essential feature which would deprive any resolution of the matter in the High Court of the character of an “appeal” in the sense used in Clause 12.7. Accordingly, he declined to find that Commissioner Foggo’s order was invalid.
48 His Honour found at [56] that the UFU’s bulletin of 26 April 2005 conveyed the implication that members could disregard Commissioner Foggo’s order. He found at [57] that the bulletin counselled or advised the members to continue bans on work constituting the implementation of the workplace changes.
49 The primary Judge took into account a number of discretionary factors in determining whether to grant an injunction. One of them was his view that the UFU’s prospects of successfully challenging Commissioner Simmonds’ decision were slight. He considered that the proper interpretation of Clause 12.7 of the Certified Agreement did not preclude the MFESB from referring the proceedings to the Commission, notwithstanding the existence of parallel proceedings in matter VID 151 of 2004 in the Federal Court; see at [64].
The Primary Judge’s decision in the penalties judgment
50 His Honour found that the Court had power to impose penalties on the UFU and Mr Marshall, and exercised his discretion to do so; see [19]. He was of the view that the term “order of the Commission” in s 178(1) was not to be read down to exclude an order made under s 127. He considered that s 127 did not constitute a code in relation to the enforcement of orders made by the Commission; see at [7] and [11].
Whether the application for Constitutional writs was an “appeal”
51 The parties agree that the proper approach to the construction of industrial instruments was stated by Madgwick J in Kucks at 184. His Honour’s statement of the principles was followed by a Full Court in Ansett Australia Limited v Australian Licensed Aircraft Engineers’ Association [2003] FCAFC 209 at [8] and by two Justices of the High Court in Amcor Limited v Construction Forestry Mining & Energy Union [2005] HCA 10 at [96] per Kirby J and at [130] per Callinan J. That was the approach which was adopted by the learned primary judge.
52 A narrow or pedantic approach is not to be taken. The intention of the framers of the document is to be ascertained objectively, bearing in mind that they are likely to have been people of a practical bent of mind. Their intention may well have been expressed in ways likely to have been understood in the relevant industry, rather than in “legal niceties or jargon.”; see Kucks at 184.
53 Clearly enough, the language of the instrument must be construed in its context, having regard to the subject matter and the wording of the entire agreement; Short v FW Hercus Pty Limited (1993) 40 FCR 511 at 518. The context will include the statutory context in which the agreement is made.
54 The Certified Agreement is an industrial agreement which deals with workplace conditions. Its objectives are stated in Clause 3 to be the development of a harmonious relationship between the parties on matters including the provision of a safe and healthy work environment.
55 The expiry date of the Certified Agreement was 1 August 2005. This was in accordance with s 170LT(10) of the Act which provided that such an agreement must be for a term of not more than three years.
56 Clauses 9 and 12 of the Certified Agreement were included so as to give effect to the statutory obligation in s 170LT (8) that such an agreement contain procedures for preventing and settling disputes between the employer and employees about matters arising under the agreement.
57 Considered in its statutory context, as well as under the express terms of Clause 12, it is plain that Clause 12.7 gave effect to the statutory obligation to provide for the resolution of disputes between the parties. It provided for the compulsory submission of disputes, which could not be resolved under steps 1 – 4 of Clause 12, to a particular person or body whose decision would be binding upon them; Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2000) 203 CLR 645 (“CFMEU v AIRC”) at [30] – [32].
58 Thus, to adopt the language of Clause 12.7, if a matter was not settled following the progression through the disputes procedure laid down in Clauses 12.2 to 12.6, it needed to be referred to the Commission or to another body or court for conciliation or mediation, or, if necessary, for determination.
59 Understood in this way, it is to be inferred that the meaning of the words “access to appeal” would have been obvious to the framers of the Certified Agreement.
60 What they would have intended was that the fifth, or last, step in the procedure would include an “appeal” within the framework of the statutory hierarchy applicable to matters referred to the Commission.
61 The “appeal” was to be one which could deal with the matters of fact that underlay the industrial dispute between the parties. They would not have contemplated that an “appeal” would embrace an application for prerogative or Constitutional relief which involves the exercise of a supervisory function of the High Court, or by the Federal Court upon remittal.
62 As Brennan J said in Re Griffin; Ex parte Professional Radio & Electronics Institute of Australia (1988) 167 CLR 37 (“Griffin”) at 42, decisions of the Commission are made in a climate of industrial relations and economic conditions which present a multitude of considerations that must be determined by the Commission on their merits.
63 By contrast, the High Court, or this Court on remittal, is concerned only with the legality of the exercise of the Commission’s powers and not with the merits of the decision; see Griffin at 42.
64 Moreover, the term of the Certified Agreement, as set by s 170LT (10) of the Act, and the subject matter, point strongly against the suggestion that “appeal” includes a claim for prerogative relief. The framers could hardly have had in mind that disputes under an agreement which includes matters such as worker safety could be delayed for many years while appeal steps in the Commission are pursued and then followed up by a claim for Constitutional writs in the High Court.
65 It would have been clear enough to the framers that the claim for Constitutional writs could be remitted to the Federal Court with the full panoply of appeal procedures then being open in respect of the decision at first instance. They could not have intended that this procedure with its attendant delays, would have been embraced within the concept of an appeal.
66 An appeal is a creature of statute. It is true, as Glass JA said in Turnbull v New South Wales Medical Board (1976) 2 NSWLR 281 at 297, that the term “appeal” is a loosely defined concept. But his Honour was there referring to the legal lexicon in which the term is used.
67 Glass JA’s classification of the nature of appeals into six categories is of no assistance in determining the meaning of the term in the Certified Agreement.
68 Indeed, Glass JA’s first category of appeals as appeals in the supervisory jurisdiction merely emphasises the flaw in the appellants’ submissions. As his Honour said, in this category, only appeals going to jurisdiction or denials of procedural fairness can be ventilated. That was not what the framers of the Certified Agreement had in mind.
69 The observations of the High Court in Coal & Allied Operations Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 at [11] – [18] and [119] – [121] do not assist the appellants’ argument.
70 Senior Counsel for the appellants pointed to s 45(1)(g) of the Act to support his argument that an appeal in Clause 12.7 includes an appeal to the supervisory jurisdiction of the High Court. That sub-section provides that an appeal lies to a Full Bench of the Commission, with leave, against a decision of a member of the Commission to exercise jurisdiction or to refuse to exercise jurisdiction.
71 The appellants’ argument on this point was that since the Act contemplated that an appeal on jurisdictional questions should be treated as an appeal, so too an application to the High Court in its original, supervisory, jurisdiction, was also in the minds of the framers of the Certified Agreement as an appeal within Clause 12.7.
72 But far from supporting the appellants’ argument, s 45(1)(g) of the Act points clearly against the construction urged upon us by Senior Counsel. What the framers must have had in mind was that an appeal would include an “appeal” within
s 45(1)(g) but that would be the extent of the appeal right. It would not extend to an application to a court in a different hierarchy for the exercise of its supervisory function.
73 The fact that special leave to appeal to the High Court is not available from the Commission demonstrates quite plainly that such a procedure could not have been within the minds of the framers of the Certified Agreement.
74 As Wilcox CJ and Marshall J said in Tweed Valley Fruit Processors Pty Limited v Ross (1996) 137 ALR 70 at 88, the purpose of s 45(1)(g) was to provide for appeals on jurisdictional matters to a Full Bench of the Commission rather than to the High Court in its original jurisdiction.
75 It is true that the meaning of an “appeal” in Clause 12.7 must be considered in light of the provisions of Clause 12.9 which preserves the status quo while the dispute resolution procedures, including appeals, are being followed.
76 However, in an agreement which was of a comparatively short term duration, and which contemplated the resolution of disputes about matters such as worker safety, the framers of the Certified Agreement could hardly have intended that the status quo be preserved for many years while two layers of “appeal” were pursued. They had in mind the statutory regime under the Act which included appeals, with leave, to a Full Bench which could resolve all matters in dispute between the parties.
77 In our view, all these considerations compel the conclusion that the framers of the Certified Agreement could not have contemplated preservation of the status quo after completion of the appeal process in the Commission while Constitutional relief was sought under Chapter III.
Whether leave to appeal should be granted to argue that the referral to Commissioner Simmonds was a nullity
78 It is true of course that the issues between the parties are settled at the trial and that an appeal is not an opportunity to commence afresh; Coulton v Holcombe (1986) 162 CLR 1 at 7-9; Branir Pty Limited v Owston Nominees Pty Limited (No 2) (2001) 117 FCR 424 at [34] – [36].
79 However, we are satisfied that there is no real prejudice to the MFESB from the grant of leave. We do not consider that evidence could have been given before the primary judge which would have affected the outcome of the proceeding.
80 In our view the issue is purely one of law, turning upon the proper interpretation of Clause 12.7. Moreover, in a case of a quasi-criminal nature in which penalties were ordered, we consider it to be appropriate to grant leave to argue a pure point of law not run below.
Whether Matter VID 151 of 2004 was a referral under Clause 12.7 to the exclusion of any subsequent power to refer to the Commission
81 In our view the commencement of Matter VID 151 of 2004 was a referral of the matter to an “other body or court” within the meaning of Clause 12.7 of the Certified Agreement, although, for reasons set out below, a referral to the Federal Court could cover only matters capable of resolution under Chapter III of the Constitution or s 39B of the Judiciary Act 1903 (Cth).
82 A consideration of Clause 12 as a whole makes it clear that “matter” in Clause 12.7 means a dispute. The clause is headed “dispute resolution” and it is concerned with the resolution of disputes or grievances between the parties.
83 We do not see that there is anything in Clause 12.7 which suggests that a reference to the Federal Court precludes the possibility of parallel proceedings in the Commission. That was the view of the learned primary judge when considering this point in relation to the question of the exercise of his discretion; see at [64]. We respectfully agree with his Honour’s view.
84 That his Honour’s view is correct is demonstrated by the Constitutional basis for provisions such as those contained in Clause 12.7. As the High Court observed in CFMEU v AIRC at [30] – [32], an agreed dispute resolution procedure authorises the Commission to exercise a power of private arbitration. Clearly, a court established under Chapter III of the Constitution, cannot exercise anything apart from judicial power.
85 It follows that any “referral” to a court under Clause 12.7 would be limited to the exercise of the judicial power of the Commonwealth. The Commission’s power is not so limited. As the primary judge observed at [64], there were some disputes that in all likelihood would only be capable of determination by the Commission.
86 Accordingly, we can see no substance in the submission that the jurisdiction of the Commission was excluded by the prior “reference” to the Court.
Whether an order under s 127 of the Act is an order within s 178
87 There is nothing in the plain wording, meaning or purpose of s 178 to warrant reading down the meaning of “an order of the Commission” in the way suggested by the appellants.
88 An order, such as that made by Commissioner Foggo, under s 127(1) is plainly an order of the Commission. Notwithstanding this, the appellants submit that a breach of such an order is not the breach of an order of the Commission within s 178(1), for s 178 is contained within a division of the Act concerned with the enforcement of orders in the nature of awards (ie orders creating specific monetary and other entitlements).
89 The term “order” is not defined in the Act. But an order under s 127 is an order such as that envisaged by Branson J in Construction, Forestry, Mining and Energy Union v Gordonstone Coal Management Pty Limited (1998) 91 FCR 1 at 6 as “something intended to have force or authority, something intended to bind one or more persons or entities”.
90 There is nothing in s 178 which suggests that “order of the Commission” is limited to orders that create monetary or other employment entitlements or obligations.
91 Nor does a purposive approach to the construction of s 178(1) suggest any such limitation. Section 178 is found within Part VIII which is headed “Compliance”. It is within Division 1 of that part which is headed “Penalties and other remedies for contravention of awards and orders”.
92 The object of Division 1 of Part VIII is to ensure compliance with orders of the Commission and to penalise those who breach such orders. There is simply nothing to suggest that a purposive reading of s 178(1) excludes from the ambit of the subsection an order of the Commission under s 127.
93 There is implied support for the view that s 178(1) extends to the breach of orders made under s 127. In BHP Steel (AIS) Pty Limited v Construction, Forestry, Mining and Energy Union v Gordonstone Coal Management Pty Limited (1998) 91 FCR 1, Beaumont J imposed penalties under s 178(1) for such a breach. Both parties to that proceeding accepted, without argument, the applicability of s 178(1) in those circumstances.
94 Moreover, if the appellants’ submissions are correct, there was no power under s 178(1) to impose a penalty for breach of an order under s 127. Such a result could hardly be consistent with the plain legislative purpose of s 178.
95 The appellants seek to meet that argument by pointing to the power of the Commission to impose a penalty for breach of the provisions of s 299(1)(e) of the Act. That sub-section provides that a person shall not do an act which would, if the Commission were a court of record, be a contempt of court.
96 However, s 299(1)(e) creates an offence. It is in Part XI of the Act under the heading “Offences”. It is of a different character from the compliance provisions of Part VIII which are designed to ensure compliance with the orders of the Commission and which vest the power to impose penalties upon the Court.
97 The appellants also contended that their construction of ss 127 and 178 is supported by resort to extrinsic material. They relied on the Second Reading Speech dated 23 May 1996 under which s 127, in the form contained in the 1996 amendments, was introduced into the Act; see Workplace Relations and Other Legislation Amendment Act 1996 (Cth) (No 6 of 1996) (“Amendment Act”). There, the Minister stated that the Commission would have power to give directions to stop or prevent unprotected industrial action. He said at Hansard p 1303, that:-
“The Federal Court of Australia will be able to enforce such directions by injunctions and will be able to award damages and sequester funds.”
98 The appellants submit that since no reference was made to the imposition of penalties, the intention of the Parliament was that there was to be no power in the Court other than as expressly stated by the Minister.
99 We reject this submission because in our opinion the Minister’s reference to the word “damages” was intended to be a reference to the power of the Federal Court to order penalties. There are a number of reasons for this.
100 First, the 1996 amendments did not introduce any power of the Court to award damages. Section 166A(2)(d) exempted from the abolition of actions in tort under State or Territory law, conduct in breach of a direction given by the Commission. But that was quite different from the conferral of any power on the Federal Court to award “damages”.
101 Second, the power of the Federal Court to order penalties under s 178 was contained in the Act prior to the amendments which introduced the new form of s 127. It would be quite extraordinary if the express power contained in s 178 were removed without any amendment to that section, merely because the Minister failed to refer expressly to penalties in the Second Reading Speech.
102 Third, reference to the previous legislative history, which we will consider below, strongly supports the submission of the MFESB that the Court had power under s 178 to impose penalties for breach of an order by the Commission under s 127(1).
Whether the amendments made in Act No 153 of 2005 assist in construing ss 127 and 178
103 Before turning to the legislative history, we should address a further argument of the appellants as to the proper scope of the power to impose penalties under s 178. The appellants argued that their construction is supported by reference to amendments to the Act introduced by Act No 153 of 2005, the Workplace Relations Amendment (Work Choices) Act 2005 (Cth). They submitted that these amendments revealed that there was a gap in the legislation as it previously stood.
104 The appellants relied in particular on the provisions of ss 496(1), (10) and (11) of the Act in its present form. Section 496(1) is in similar terms to s 127(1) of the Act as it stood at the relevant time. Sections 496(10) and (11) provide that s 496(1) is a civil remedy provision. The appellants submit that this was the gap that the legislature saw the need to fill in order to overcome a lacuna in the then existing ss 127 and 178.
105 However, it is necessary also to have regard to s 719(1) of the Act in its current form. That sub-section provides that an eligible court may impose a penalty on a person who breaches an “applicable provision”. Section 496(1) is an applicable provision; see s 717.
106 Thus, it is s 719 which confers the power to impose a civil penalty. And it does so using a similar legislative technique to that which was clear enough in the terms of ss 127 and 178. Certainly, the language has been altered and there is now reference to a civil remedy provision in s 496 which is expressly attracted under s 719 in the event of a breach of an order of the Commission equivalent to that made under the former s 127.
107 But we can see nothing in this legislative excursus which supports the appellants’ argument as to the limitations said to be found in the provisions of ss 127 and 178. They are clear in their terms and the recent amendments cannot be relied upon to read down the plain meaning of the word “order” in s 178.
The Previous Legislative History
108 The predecessors to ss 127 and 178 of the Act were found in ss 127 and 178 of the Industrial Relations Act 1988 (Cth)(“the IR Act”).
109 Section 127(1) of the IR Act conferred power on the Commission to make “stop action” orders where it appeared that industrial action by persons engaged in public sector employment was happening or was threatened. Section 127(1) of the IR Act was in similar terms to s 127(1) of the Act but it was limited to industrial action by public sector employees.
110 Notably, s 127 of the IR Act contained only two sub-sections and it did not confer any power on the Federal Court to grant injunctive relief as was conferred by ss 127(6) and (7) of the 1996 Act.
111 Section 178(1) of the IR Act was in similar terms to s 178(1) of the 1996 Act, save that the IR Act provided for the imposition of penalties for breach of a “bans clause” in an award in addition to penalties for breach of the terms of an award per se. In Coal and Allied Operations Pty Limited v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (1997) 73 IR 311 at 329, a Full Bench of the Commission said that an order under s 127 of the 1996 Act may be described as the legislative descendant of the bans clause.
112 There was no substantive amendment to s 178 of the IR Act in the 1996 amendments. Yet if the appellants’ argument is correct, a breach of s 127 of the IR Act was unenforceable in the Court. There was no power to grant an injunction and an “order” under s 178(1) of the IR Act would not, on the appellants’ argument, extend to a power to impose a penalty for contravention of s 127(1) of the IR Act.
113 The predecessors to ss 127(1) and 178(1) of the IR Act were ss 70J and 119(1) of the Conciliation and Arbitration Act 1904 (Cth). Reference to those provisions exposes the same flaw in the appellants’ arguments.
Whether s 127 of the Act contains a code
114 We reject the submission that s 127 of the Act contained a code for the enforcement of orders made under it, to the exclusion of other enforcement mechanisms such as those contained in s 178 of the Act.
115 First, there is no mandate for such a restrictive approach on the plain terms of either section.
116 Significantly, if the appellants’ argument is correct, the refusal by a Court in the exercise of its discretion to grant an injunction would thereby preclude it from any power to impose penalties under s 178.
117 Second, the previous legislative history makes it clear that s 127 did not constitute a code. If it did, a breach of s 70J of the Conciliation and Arbitration Act and s 127(1) of the IR Act was unenforceable in the Court. That could not have been the intention of Parliament.
118 Third, the Explanatory Memorandum to the Amendment Act reveals no suggestion that the 1996 amendments were intended to remove the availability of penalties for breach of an order under s 127; see [14.9] and [14.10] of the Explanatory Memorandum.
Conclusion and Orders
119 It follows from what we have said that the appeal in VID1188/2005 must be dismissed.
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I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Nicholson, Jacobson and Lander. |
Associate:
Dated: 30 May 2006
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Counsel for the Appellants: |
Mr H Borenstein SC and Mr P Rozen |
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Solicitor for the Appellants: |
Slater & Gordon |
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Counsel for the Respondents: |
Mr F Parry SC and Mr P Wheelahan |
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Solicitor for the Respondents: |
Freehills |
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Date of Hearing: |
17 – 18 May 2006 |
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Date of Judgment: |
30 May 2006 |
