ACTEW Corporation Ltd v Media Entertainment and Arts Alliance

[1997] IRCA 242

DECISION NO:242/97

INDUSTRIAL RELATIONS COURT OF AUSTRALIA

INDUSTRIAL LAW - Interpretation of award - whether Corporation in Australian Capital Territory bound by award applying to Commonwealth agencies - effect of self government of Territory - whether succession, assignment or transmission of business

Workplace Relations and Other Legislation Amendment Act 1996
Workplace Relations Act 1996
Public Service Arbitration Act 1920
Australian Capital Territory (Self-Government) Act 1988
Self-Government (Citation of Laws) Act 1989
A.C.T. Self Government (Consequential Provision) Act 1988
Electricity and Water (Corporatisation)(Consequential Provisions) Act 1995
Electricity and Water (Corporatisation)(Consequential Amendments) Act 1995
Public Sector Management (Consequential and Transitional Provisions) Act 1994
Electricity and Water Act 1988
Conciliation and Arbitration Act 1904
Conciliation and Arbitration Amendment Act (No.2) 1983

Standish v University of Tasmania (1988) 26 IR 342
Standish v University of Tasmania (No.2) (1989) 28 IR 129
Capital Duplicators Pty Ltd v Australian Capital Territory (No 2) (1993) 178 CLR 561
Attorney-General (ACT) v Commonwealth of Australia (1990) 95 ALR 739
Hillman v The Commonwealth (1924) 35 CLR 260
Mersey Docks & Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1
Building Workers’ Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104
George Hudson Ltd v Australian Timber Worker’s Union (1923) 32 CLR 413
Re Australian Industrial Relations Commission; Ex parte Australian Transport Officers Federation (1990) 171 CLR 216

ACTEW CORPORATION LIMITED v MEDIA ENTERTAINMENT & ARTS ALLIANCE

No. AI 1004 of 1997

MOORE J
SYDNEY (heard in Canberra)
7 AUGUST 1997

IN THE INDUSTRIAL RELATIONS                 )  General Distribution
  )  
COURT OF AUSTRALIA  )  No. AI 1004 of 1997
  )
ACT DISTRICT REGISTRY  )

BETWEEN:             ACTEW CORPORATION LIMITED

Applicant

AND:  MEDIA ENTERTAINMENT & ARTS ALLIANCE

Respondent

JUDGE:        Moore J

PLACE:        Sydney (heard in Canberra)

DATE:          7 August 1997           

ORDER OF THE COURT

THE COURT ORDERS THAT:

1. The application is dismissed.

NOTE:            Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court            Rules.

IN THE INDUSTRIAL RELATIONS                 )  General Distribution
  )
COURT OF AUSTRALIA  )  No. AI 1004 of 1997
  )
ACT DISTRICT REGISTRY  )

BETWEEN:             ACTEW CORPORATION LIMITED

Applicant

AND:  MEDIA ENTERTAINMENT & ARTS ALLIANCE

Respondent

JUDGE:        Moore J

PLACE:        Sydney (heard in Canberra)

DATE:          7 August 1997           

REASONS FOR JUDGMENT

These proceedings were commenced and heard in the Industrial Relations Court of Australia (“the Court”) before Schedule 16 of the Workplace Relations and Other Legislation Amendment Act 1996 would have required them to be heard and determined by the Federal Court of Australia.

On 14 January 1997 an application was filed by ACTEW Corporation Limited (“ACTEW”) seeking a declaration that it was not bound by the Journalists’ (Australian Government Instrumentalities, Authorities and Agencies etc) Award 1991 (“1991 award”). A subsidiary declaratory order was also sought that if it was bound by it, it applied to no employee it employed. The application was said to be made under s 417 of the Workplace Relations Act 1996 (“the Act”). At the time the application was made, s 417 conferred on the Court a power to make binding declarations of right and stated that a suit was not open to objection only on the ground that a declaratory order only was sought.

The power to make a declaratory order arose “in relation to a matter in which [the Court] has jurisdiction”. The relevant jurisdiction to interpret an award was conferred by s 413 of the Act. The Court could give an interpretation of an award upon application by an organisation or person bound by an award. However the principal declaratory order sought by ACTEW was, paradoxically, to establish it was not bound by the award. If so, it could not make a competent application under s 413. The jurisdiction to make declaratory orders in relation to awards is not unlimited as is apparent from Standish v University of Tasmania (1988) 26 IR 342 and Standish v University of Tasmania (No. 2) (1989) 28 IR 129 and an application for an interpretation should not be made if there is a controversy about the facts: see Media Entertainment and Arts Alliance v John Fairfax Group Pty Ltd (1993) 49 IR 374; see also Victoria v Australian Teachers Union (1993) 49 IR 149 at 151, per Northrop J.

However in the present case the subsidiary declaratory order sought was that while the 1991 award binds ACTEW, ACTEW employed no person to whom the 1991 award applied. This is probably, in the circumstances, sufficient to found jurisdiction though I think the application is largely misconceived. However, the sole union respondent to the 1991 award, the Media Entertainment and Arts Alliance (“MEAA”), contended ACTEW is bound by the award and took no point about the jurisdiction of the Court to hear and determine the application. Accordingly I will proceed to consider the submissions made.

The material by reference to which the parties sought the determination of the issues raised in the applications were principally public documents, namely awards and orders of the Australian Industrial Relations Commission (“the Commission”) or its predecessor, and Acts or delegated legislative instruments of the Commonwealth or the Australia Capital Territory (“the Territory”). From these documents emerge two parallel series of events. The first concerns the making of the 1991 award and awards that preceded it. The second concerns the creation of ACTEW and public authorities that preceded it. However the fact that the parties proceeded in this way and elected not to provide evidence or material in another form has led to difficulties which will become apparent later in this judgment as has the tendency of both to gloss over some matters of legislative or legal detail in the submissions they made.

I turn to consider the material that was relied upon. By Act No 76 of 1962, the Australian Capital Territory Electricity Supply Act 1962 (Cth) (“the 1962 Supply Act”), the Commonwealth established the Australian Capital Territory Electricity Authority (“the 1962 Authority”). Section 5 declared it to be an authority of the Commonwealth and a body corporate with perpetual succession. Section 17 identified its primary functions as the supply of electricity to the Territory and promotion of the use of electricity.

In its written submissions, the MEAA said that in 1985 the predecessor of the Commission made an award, the Journalists (Australian Government Departments and Instrumentalities) Award 1985 (“the 1985 award”) and did so as part of the process of a converting a determination made under the Public Service Arbitration Act 1920 (Cth), Determination No 52 of 1952, into an award. This was not put in issue. On 7 July 1989, the Commission made an order varying the 1985 award. The variation involved the deletion of all 27 of the clauses of the 1985 award and the substitution of 18 new clauses. Clause 1 gave the award a new name, the Journalists (Australian Government Departments and Instrumentalities) Award 1988 (“the 1988 award”). Somewhat curiously, the new clause 18 declared that the 1988 award superseded the 1985 award even though the 1988 award was a revision of the text of the 1985 award resulting from the variation of it. Clause 4 of the 1988 award declared that it came into operation “from the first pay period on or after 24 June 1988”.

On 1 July 1988 an Ordinance of the Territory came into force, the Electricity and Water Ordinance 1988 (“the 1988 Ordinance”). The status of an ordinance of the Territory is described in Pearce D C, Delegated Legislation (Sydney: Butterworths, 1977) at 13, §25:

“... ordinances ... are made by the Governor-General Australian Capital Territory ordinances stand on all fours with Commonwealth regulations. While the Australian Capital Territory has a Legislative Assembly, this body has no legislative power but simply advises the minister on such ordinances as the minister refers to the Assembly.

The 1988 Ordinance created an authority called the Australian Capital Territory Electricity and Water Authority (“the 1988 Authority”) as a body corporate with perpetual succession. Section 5 of the 1988 Ordinance identified the 1988 Authority’s principal functions as supplying and promoting and managing the use of water and electricity, collecting and treating sewerage, and providing and managing sewerage services. Section 85 transferred to the 1988 Authority the rights, property and assets of the 1962 Authority. Section 86 deemed officers and employees of the 1962 Authority to be appointed or employed by the 1988 Authority. The 1988 Authority consisted of a Chief Executive Officer and 3 other members, one of whom was a chairperson: see s 14 of the 1988 Ordinance. Notwithstanding that the 1988 Authority was constituted in this way, the 1988 Ordinance contained a range of provisions conferring power on the “the Minister” to control the exercise of functions by the 1988 Authority. The combined effect of s 46(1)(a) and s 19A of the Acts Interpretation Act 1901 is that the reference to Minister in the provisions of the 1988 Ordinance is a reference to the Commonwealth Minister administering the provisions.

Section 37 of the 1988 Ordinance provided that the 1988 Authority was not subject to direction by or on behalf of the Commonwealth though it conferred a power on the Minister to issue a direction to the 1988 Authority with respect to the performance of its functions. Such a direction could only be made when the Minister was satisfied it was in the public interest to make it. It can be seen that the 1988 award was made a little over a year after the 1988 Authority came into existence. However the 1988 award commenced to operate, at most, a week prior to the 1988 Authority coming into existence.

On 6 December 1988 The Australian Capital Territory (Self-Government) Act 1988 (Cth) (“the Self-Government Act”) received royal assent, though most of its provisions were to operate from a date to be proclaimed. That Act and related Commonwealth legislation conferred self-government on the Territory: for a discussion about various aspects of the process, see Capital Duplicators Pty Ltd v Australian Capital Territory (No 2) (1993) 178 CLR 561 and Attorney-General (ACT) v Commonwealth of Australia (1990) 95 ALR 739. Section 7 of the Self-Government Act declared the Territory established as a body politic under the Crown. It created a Legislative Assembly: see s 8; and an Australian Capital Territory Executive: see s 36, constituted by a Chief Minister and Ministers appointed by the Chief Minister. Section 37 conferred power on the Executive to govern the Territory in relation to matters specified in Schedule 4 of the Self-Government Act. Schedule 4 included water resources, use and supply of energy and public utilities. The submission of ACTEW as to the fate of the 1988 Authority upon self-government was as follows:

“The combined effect of the Australian Capital Territory (Self-Government) Act 1988 and the ACT Self-Government (Consequential Provisions) Act 1988 was that, effective from Self-Government Day, which was 11 May 1989, the Australian Capital Territory Electricity & Water Authority ceased to be an Authority established under a Commonwealth law and became a Authority established under an Australian Capital Territory enactment.”

By operation of s 34(4) of the Self-Government Act the 1988 Ordinance became a enactment. That is, it was taken to be a law made by the Territory Legislative Assembly and capable of being amended or repealed by the Assembly. By operation of the Self-Government (Citation of Laws) Act 1989, the 1988 Ordinance was subsequently renamed the Electricity and Water Act 1988. Section 5 of the A.C.T. Self-Government (Consequential Provisions) Act 1988 (Cth) dealt with the future transfer by the Commonwealth Minister of assets and rights of the Commonwealth, though the transfer was not automatic. I have no doubt that the scheme for self-government contemplated the role of a Commonwealth Minister conferred by an Ordinance which became an enactment would, in fact and in law, be a role assumed by the relevant Minister in the Territory Executive if it concerned a matter referred to in Schedule 4. How and when it occurred in relation to the ministerial role embodied in the 1988 Ordinance does not emerge from the material provided or the submissions made. This date is of some importance to the issues raised in this application.

The Assembly was empowered to make laws on 11 May 1989. The 1988 award was varied on 10 September 1992 with the operation of the variation commencing on 6 June 1991. As with the earlier variation made on 7 July 1989, the variation of the 1988 award took the form of deleting all 18 clauses and substituting 29 new clauses. The first of the new clauses identified the title of the varied award as “the Journalists (Australian Government Departments and Instrumentalities) Award 1991” which is the 1991 award to which this application relates. The new clause 3 identified the parties bound by the 1991 award in the following terms:

“

3 - PARTIES BOUND

This award shall apply to and be binding upon:

(a)The Australian Journalists Association, its officers, members and persons eligible to be members; and

(b)all Ministers of the Crown of the Commonwealth;

in respect of person employed by Departments, Statutory Authorities, Corporations, Commissions or Agencies of the Commonwealth in the classifications or classes or work specified in this award.

(c)Part B of this award shall not apply to officers of the Australian Trade Commission.”

One of the clauses introducing the variations made on 10 September 1992 declared that the 1991 award superseded the 1988 award even though that latter award was the award which was being varied. In the new clause 6, “Department” was defined as meaning, “where necessary as a reference to the relevant Statutory Authority, Corporation, Commission or Agency of the Commonwealth.” Clause 9 specified rates of pay and was said to apply to members “who are employed in Australia and in a department or agency administered by any of the respondents”. It is to be remembered that the respondents that might be relevant are “all Ministers of the Crown of the Commonwealth”. Having regard only to the terms of the 1991 Award itself, its scope appears to be limited, for present purposes, to statutory authorities in respect of which a Commonwealth Minister exercises some measure of control for which he or she is responsible.

If, either at the time the 1991 award was made (September 1992) or the time it was to operate from (June 1991), and it is unnecessary to determine which, the 1988 Authority was one in respect of which a Territory Minister, and not a Commonwealth Minister, exercised some measure of control or for which he or she was responsible, then the language of the 1991 award would suggest strongly that the variations made on 10 September 1992 were not intended to apply, at least as to the future operation of the 1991 award, to the 1988 Authority and its employees.

The MEAA asserted in its written submissions that the Territory Government appeared at the hearing resulting in the order of 10 September 1992, and was appearing for all Territory authorities including ACTEW. (This cannot be literally correct as ACTEW did not, I apprehend, then exist). The MEAA further asserted that all parties (which I assume is a reference to parties appearing and would include the Territory Government) agreed that existing parties would continue to be respondents. A recent letter written by an advocate in the proceedings in 1992 was relied on by the MEAA as supporting this contention. However even accepting that the Territory did appear and was party to an agreement of this type, the relatively clear words of the variation leave little room to doubt that the award, in its varied terms, was to apply only to Commonwealth Statutory Authorities over which, in the way I have just discussed, a Commonwealth minister had authority or control: see Hillman v The Commonwealth (1924) 35 CLR 260 at 264.5, 266.3, 268.3 and 273.4.

However, as I said earlier, I do not know when and what changes occurred in relation to Ministerial responsibility before 10 September 1992. I am thus not able to reach an affirmative conclusion that the Commonwealth Minister had ceased having any relevant involvement by 10 September 1992 warranting the making a declaration essentially in the negative. That is, declaring ACTEW was not bound by the 1991 award or that it applied to none of its employees having regard to the order made in September 1992.

Even if the 1991 Award bound the 1988 Authority and it applied to its employees, there was a further argument put by ACTEW in support of the orders sought. It concerned the process by which the activities of the 1988 Authority were taken over by ACTEW. I describe the process this way because there was an issue about whether there was a succession, assignment or transmission of a business or part of a business of the 1988 Authority for the purposes of s 149(1)(d) of the Act. In order to understand this argument it is necessary first to move forward to 1995. In that year the Legislative Assembly enacted the Electricity and Water (Corporatisation)(Consequential Provisions) Act 1995 (“the Corporatisation Provisions Act”) and the Electricity and Water (Corporatisation Amendments) Act 1995 (“the Corporatisation) (Consequential Amendments Act”). The Corporatisation Provisions Act vested in ACTEW on 1 July 1995 all the rights and liabilities of the 1988 Authority including its assets and rights and liabilities under contract. In relation to staff, s 7(2) and (3) of the Corporatisation Provisions Act provided:

“(2)       Where, immediately before the relevant day, a person was employed by the Territory as part of the staff of the Authority under the Public Sector Act, the person ceases on the relevant day to be employed under that Act and shall, on and after the relevant day, be employed by the Company.

(3)        The contract of employment between the Company and an employee shall be taken to provide for employment by the Company on the terms and conditions that were applicable immediately before the relevant day under any applicable award that applied to transferred employees.”

The “relevant day” was 1 July 1995. It can be seen that s7(2) refers to people “employed by the Territory” but as “part of the staff of the Authority”. These references seemingly result from and reflect earlier law passed by the Legislative Assembly and the Commonwealth.

In 1994 the Legislative Assembly enacted two Acts effectively reconstituting the Territory public service. One was the Public Sector Management (Consequential and Transitional Provisions) Act 1994 (“The PSM (Consequential) Act”). That Act dealt generally with the transition to the status of Territory public servants, of public servants who were employed under the Public Service Act 1922 as transitional staff. However it made certain amendments to what was by then entitled the Electricity and Water Act 1988 (the renamed 1988 Ordinance). Part 33 of Schedule 1 of the PSM (Consequential) Act amended the Electricity and Water Act 1988 by repealing the section, s 31, conferring power on the 1988 Authority to appoint or engage staff and substituting a section in the following terms.

“31(1)    The staff of the Authority shall be employed under the Public Sector Management Act 1994;

(2)The Public Sector Management Act 1994 applies in relation to the management of the staff of the Authority”.

It should be noted that s 12 of the other Act, the Public Sector Management Act 1994 (“PS Management Act”), declared what constituted the Australian Capital Territory Public Service and that the Territory was the employer of all members of the Service. ACTEW submitted that the legal effect of the amendments made to the Electricity and Water Act 1988 by the PSM (Consequential Act) was:

“These provisions had effect from 1 July 1994 at which time the staff of the Authority became part of the Australian Capital Territory Government Service employed under the ACT Public Sector Management Act, 1994, and the Electricity & Water Authority was expressly excluded from having the power to employ any person.

The functions of the Australian Capital Territory Electricity & Water Authority which were given to that Authority by Section 5 of the Electricity & Water Act 1988, were unaffected. The effect of the changes which took place on 1 July 1994 was that the Australian Capital Territory Electricity & Water Authority continued to exist as a separate body having the responsibility of performing the functions it had had since its establishment in 1988. Rather than having the power to employ its own staff, however, those staff became part of the Australian Capital Territory Government Service under the terms of the Public Section Management Act 1994.

These arrangements continued until 1 July 1995 at which time [ACTEW] commenced operations.”

It is not entirely clear what was meant by the expression “employed under the Public Sector Management Act 1994” in s 31(1) of the Electricity and Water Act 1988 in its amended form. On one view it meant that the provisions of the PSM Act would apply to staff who would still be employed by the 1988 Authority as if they were employed by the Territory as part of the Australian Capital Territory Public Service. However, if this was its meaning then s 31(2) would appear to be unnecessary. Alternatively the staff of the 1988 Authority were intended to become, by operation of the amendments to s 31(1), employees of the Territory. If so, s 31(2) was intended to make clear that the PSM Act would also apply to them. This latter construction of s 31(1) is probably to be preferred and s7(2) and (3) of the Corporatisation Provisions Act, which I set out earlier, are drafted on the basis that this was the effect of the amendments to s31(1). This leads to a consideration of the further submissions made by ACTEW.

The gravamen of those submissions is, as I understand it, that while the assets of the business of the 1988 Authority were transferred directly to ACTEW in July 1995, the staff of the 1988 Authority had a year earlier become employees of the Territory. Thus there was a period where the Authority employed no staff. There could only be a transmission of the business if, at the time of the transfer of the assets, there was also a transfer of staff in some direct way.

What I have not addressed to this point is the status of the staff of the Authority. I have already referred to s 31 of the 1988 Ordinance (though at a time when it was called the Electricity and Water Act 1988). That section not only enabled the 1988 Authority to appoint or engage staff (until the amendments in 1994) but also empowered the Chief Executive Officer to make arrangements that would result in the services of offices of employees of a Commonwealth Department being made available to the 1988 Authority. This was an arrangement, it would appear, where Commonwealth employees were “loaned” to the 1988 Authority to enable the authority to discharge its statutory functions. Similar provisions were found in s 20 of the 1962 Supply Act which enabled the 1962 Authority to appoint its own staff or use loaned Commonwealth employees. There is no evidence before me that casts light on the extent to which the 1962 Authority or the 1988 authority carried on their activities using loaned employees or using their own staff. Apart from statute, the notion of a loaned employee is not foreign to the common law; see Mersey Docks & Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1 and Building Workers’ Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104 at 125.

The fact that the 1988 Ordinance provided for the use of “loaned” Commonwealth employees is of some significance as it also appears to have been the effect of the statutory regime in the staffing interregnum in 1994 and 1995 when, it appears, all staff utilized by the Authority were employed by the Territory.

I am presently considering whether ACTEW is the successor assignee or transmittee of the 1988 Authority for the purposes of s 149(1)(d) which provides:

“(d) any successor, assignee or transmittee (whether immediate or not) to or of the business or part of the business of an employer who was a part to the industrial dispute, including a corporation that has acquired or taken over the business or part of the business of the employer”

Before considering in detail the issue of succession, assignment or transmission I should mention one matter that arises from the terms of s 149(1)(d) though it was not addressed by the parties in any detail. That paragraph operates on the successor, assignee or transmittee of a business of an employer who was party to the dispute and, unlike its legislative predecessor s 61 of the Conciliation and Arbitration Act 1904, did not operate by reference to an employer being a party to an award. I earlier traced the recent history of the 1991 award. It had its genesis in the conversion of a public service determination into an award. The Conciliation and Arbitration Amendment Act (No.2) 1983 (Cth) repealed the Public Service Arbitration Act 1920 (Cth) and inserted Division 1A into the Conciliation and Arbitration Act 1904. These amendments effectively removed from the Public Service Arbitrator the award (in its general sense) making power concerning members of the Australian Public Service and conferred it on the Commission. However there was no requirement deriving from the Constitution that employment matters concerning the Commonwealth Public Service be the subject of an industrial dispute to enliven the Commission’s jurisdiction. Section 70D(1)(b) (in Division 1A) created the legal fiction that employees in respect of whose employment an industrial question related, and the relevant employer, were to be treated as parties to an industrial dispute for the purposes of the exercise of the award making powers of the Commission conferred by s 70B concerning the Australian Public Service or a Commonwealth authority (which included an authority created by an Ordinance of the Australian Capital Territory). When the 1985 award was made, it is probable that the 1962 Authority and/or the Commonwealth were, by operation of s 70D(1)(b), to be treated as “parties to the dispute” for the purposes of Division 1A. In my opinion, the effect of this deeming provision was that they would also be treated as parties to the dispute for the purposes of s 61 of the Conciliation and Arbitration Act 1904 (Cth) and that that status would endure for the purposes of s 149 of the Act. It appears to be common ground that the 1988 Authority was the successor to the business of the 1962 Authority and would have been bound by awards binding the 1962 Authority. If ACTEW was the successor of the business of the 1988 Authority, ACTEW would be bound by awards binding the 1988 Authority. This is so because even though ACTEW would be the successor once removed from the 1962 Authority (which was the party to the dispute), s 149(1)(f) would render ACTEW bound having regard to the words “(whether immediate or not)”.

I return to cosider whether ACTEW was the successor of the business of the 1988 Authority. The first point to be made about the operation of s 149 is that it should be beneficially construed so that employers do not “avoid the settled rights of employees”: see George Hudson Ltd v Australian Timber Workers’ Union (1923) 32 CLR 413 at 435 - 436.5, per Issaacs J. Thus, in my opinion, whether there has been succession, transmission or assignment of a business should not be approached on some narrow basis. A comparatively recent consideration of this issue, albeit in relation to the eligibility rules of a registered organisation, was undertaken by the High Court in Re Australian Industrial Relations Commission; Ex parte Australian Transport Officers Federation (1990) 171 CLR 216. In issue was whether Roads and Traffic Authority of New South Wales (“RTA”) was the successor of the business of the Commissioner of Motor Transport (“CMT”). It is unnecessary to repeat the circumstances in which this issue was considered save to note that the RTA assumed some, but not all, of the statutory functions of the CMT. The test propounded by the High Court was (at 229-230):

“The R.T.A. and the P.S.A. submit that a substantial identity between the business formerly carried on by the C.M.T. and the business now carried on by the R.T.A. must be shown to exist in order to constitute the R.T.A. as a successor of the business of the C.M.T. We do not agree that Shaw v United Felt Hats Pty Ltd (1927) 39 CLR 533 supports such an absolute proposition. That decision, which related to s 29(ba) of the Commonwealth Conciliation and Arbitration Act as it then stood, turned on its own facts. The respondents’ notion of substantial identity invites a comparison between the nature of the business as it was formerly carried on and the nature of the business now carried on by the new entity with a view to ascertaining an identity between the two.  According to the natural reading of the language of the successor clause, the inquiry should be directed to ascertaining whether the business or the activities formerly carried on by the C.M.T. are still carried on by the R.T.A., notwithstanding that the R.T.A. also carries on one of more other substantial activities.”

There is little doubt, in my opinion, that it was the likely intention of the Legislative Assembly that the Corporatisation Provisions Act and the Corporatisation Amendments Act would transfer the business of the 1988 Authority to ACTEW, through there is not direct evidence of the purpose for which ACTEW was incorporated other than an extract from its 1995-1996 annual report. It is relatively clear however, that it was to continue to provide power and water services in the Territory. In my opinion, the fact that the staff of ACTEW may have come indirectly from the staff of the 1988 Authority and did so after a period of employment by the Territory does not alter the fact that it was the business activity undertaken by the 1988 Authority, albeit probably using “loaned” employees, that was to be undertaken by ACTEW. It is probable there was a transmission of the business but, in any event, I am not satisfied there was not. I would need to be so satisfied to make the declarations sought, though on the assumption that the 1991 award both bound the 1988 Authority and applied to its employees.

The MEAA pointed to two other industrial instruments that might directly or indirectly render applicable the provisions of the 1991 award to ACTEW and its employees. They were a common rule declaration and a roping in award. It is unnecessary to consider either to dispose of ACTEW’s application and undesirable given the paucity of evidence by reference to which their intended operation could be considered.

I dismiss the application.

I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:       

Dated:   7 August 1997

Solicitor for the Applicant:  Mr A Grinsell-Jones of Deacons Graham & James

Advocate for the Respondent: Mr J Pyner of the ACT Trades & Labour Council

Date of Hearing:  23 May 1997