Airlite Cleaning Pty Ltd v The Australian Liquor, Hospitality & Miscellaneous WORKERS' Union, Western Australian Branch
[2001] WASCA 19
•8 FEBRUARY 2001
| JURISDICTION | : WESTERN AUSTRALIAN INDUSTRIAL APPEAL |
COURT
| CITATION | : | AIRLITE CLEANING PTY LTD -v- THE AUSTRALIAN LIQUOR, HOSPITALITY & MISCELLANEOUS WORKERS' UNION, WESTERN AUSTRALIAN BRANCH [2001] WASCA 19 |
| CORAM | : | KENNEDY J (Presiding Judge) SCOTT J PARKER J |
| HEARD | : 1 DECEMBER 2000 | ||
| DELIVERED | : 8 FEBRUARY 2001 | ||
| FILE NO/S |
| ||
| BETWEEN | : AIRLITE CLEANING PTY LTD |
Appellant
AND
THE AUSTRALIAN LIQUOR, HOSPITALITY &
MISCELLANEOUS WORKERS' UNION,
WESTERN AUSTRALIAN BRANCHRespondent
| FILE NO/S | : | IAC 9 of 2000 |
| BETWEEN | : | MANGO HILL PTY LTD trading as ARRIX INTEGRATED AND NEATCLEAN PTY LTD Appellant |
| AND | ||
| THE AUSTRALIAN LIQUOR, HOSPITALITY & MISCELLANEOUS WORKERS' UNION, WESTERN AUSTRALIAN BRANCH Respondent | ||
| Catchwords: |
Industrial law (WA) - Awards - Application for variation of award - Not a common rule award - Widening scope of award by addition of named employers as respondents - Necessity for gazettal of application
Legislation:
Industrial Relations Act 1979, s 29A(2), s 38
Interpretation Act 1984, s 18, s 56
Result:
Appeals allowed
Representation:
IAC 8 of 2000
Counsel:
| Appellant | : | Mr L A Tsaknis |
| Respondent | : | Mr D H Schapper |
Solicitors:
| Appellant | : | Mallesons Stephen Jaques |
| Respondent | : | Derek Schapper |
IAC 9 of 2000
Counsel:
| Appellant | : | Mr G R Blyth (Agent) |
| Respondent | : | Mr D H Schapper |
[2001] WASCA 19
Solicitors:
| Appellant | : | Chamber of Commerce and Industry of Western |
Australia Inc (Agent)
| Respondent | : | Derek Schapper |
Case(s) referred to in judgment(s):
Australasian Meat Industry Employer's Union Industrial Union of Workers West Australian Branch v Stewart Butchering Co Pty Ltd (1993) 73 WAIG 1196
Case(s) also cited:
Federated Miscellaneous Workers Union of Australia, Hospital, Service and Miscellaneous, WA Branch v Nationwide Food Service Pty Ltd (1984) 64 WAIG 1926
R v Tonkin; ex parte Federated Ship Painters' and Dockers' Union of Australia
(1954) 92 CLR 526
Waugh v Forest Products, Furnishing and Allied Industrial Union of Workers,
WA (1993) 73 WAIG 1196
[2001] WASCA 19
Kennedy J
KENNEDY J (Presiding Judge): I have had the benefit of reading in draft the reasons to be published by Scott J, with which I am in agreement.
In its application to the Industrial Relations Commission, the respondent in each of these appeals ("the Union"), sought to join 35 employers as respondents to the Contract Cleaners' (Ministry of Education) Award, 1990.
Clause 3 of the award, which is headed "SCOPE", provides as
follows:
"This Award shall apply to:
(a) Cleaners who are employed by the named respondents in the industry of Contract Cleaning of Government Schools in the State of Western Australia; and (b) To all those employers employing those Cleaners."
In my opinion, it being apparent that the award is not a common rule award, the naming of additional respondents must inevitably amend the scope of the award, extending its application to cleaners employed by those respondents and to the named respondents employing those cleaners. The consequence of this is that s 29A(2) of the Industrial Relations Act 1979 applies and, subsection (2a) having no application, "the Commission shall not hear the …. application until those parts of the proposed …. variation …. that relate to …. scope have been published in the Industrial Gazette and a copy of the …. application has been served" in accordance with par (a) of s 29A(2).
In my opinion, the words "shall not" in s 29A(2) are clearly imperative - cf s 56(2) of the Interpretation Act 1984 - and the Commission is prohibited from hearing the application until the provisions of s 29A(2) have been fully complied with.
The order made by the Commission in Court Session was as follows:
"1.
That the Contract Cleaners' (Ministry of Education) Award 1990 be varied in accordance with the following schedule and such variation shall have effect from the beginning of the first pay period commencing on or after 13 September 2000.
[2001] WASCA 19
Kennedy J
Scott J
2. That so much of the application which relates to the application to join Cleandustrial Services be adjourned."
The schedule referred to in the order set out 43 named respondents. Some of the respondents named at the time of making the application have been deleted from the schedule referred to in the order.
In the event of the appeals being upheld, in its written submissions, the Union sought to have the order of the Commission varied by deleting only the names of the appellants from the schedule, rather than by deleting all those employers being sought to be made respondents to the award, and by providing that, in respect of the appellants only, the matter should be remitted back to the Commission for its consideration as to whether the appellants, or either of them, should be joined as respondents.
To do as the Union requests would result in a breach of the prohibition in s 29A(2) of the Act. In the circumstances, I would allow the appeals, set aside the order of the Commission in Court Session and, in lieu thereof, I would remit both matters to a single Commissioner, as Scott J has proposed, to be dealt with after the requirements of s 29A(2) have been fulfilled.
SCOTT J: The respondent applied to the Western Australian Industrial Relations Commission for a variation to the Cleaning (Ministry of Education) Award by adding to the named respondents to that award a number of additional respondents.
It is common ground that the award was not a "common rule" award and only related to named respondents. It is also common ground that each of the respondents affected by the application was served with the application.
The grounds for the application in summary were that because government policy had awarded the cleaning of the government schools to contract cleaners, it was necessary to extend the respondents under the award to cover the additional contract cleaners who were involved in that activity so that their employees would be governed by the award.
The matter came before the Commission in Court Session comprising Commissioners Beech, Scott and Kenner. At that hearing a preliminary issue was raised under s 29A(2) of the Industrial Relations Act 1979 ("the Industrial Relations Act"). That section provides:
[2001] WASCA 19
Scott J
"29A Service of claims and applications
(2) Subject to any direction given under subsection (2a), if the reference of an industrial matter to the Commission seeks the issuance of award, or the variation of the area of operation or the scope of an award or industrial agreement, or the registration of an industrial agreement, the Commission shall not hear the claim or application until those parts of the proposed award, variation or industrial agreement that relate to area of operation or scope have been published in the Industrial Gazette and a copy of the claim or application has been served -
(a) in the case of a proposed award or variation of an award, on - (i) the Council, the Chamber, the Mines and Metals Association and the Minister; and
(ii) such organizations, associations and employers as the Commission may direct being, in the case of employers, such employers as constitute, in the opinion of the Commission, a sufficient number of employers who are reasonably representative of the employers who would be bound by the proposed award or the award as proposed to be varied, as the case may be;
(b) in the case of the proposed registration or variation of an industrial agreement, on the Council, the Chamber, the Mines and Metals Association and the Minister."
It is common ground that the application in this instance was not advertised in the Industrial Gazette.
By a majority, the Commission in Court Session ruled that the addition of respondents to the award did not alter the operation or scope of the award so as to attract the provisions of s 29A(2) of the Industrial Relations Act and thus require advertising in the Industrial Gazette.
[2001] WASCA 19
Scott J
The appellants have appealed to this Court against that decision on the grounds that -
"1
The majority of the Commission in Court Session of the Western Australian Industrial Relations Commission ('Commission') erred in law in failing to comply with the requirements of s 29A(2) of the Industrial Relations Act 1979 (WA) ('Act') in hearing the applicant at first instance.
PARTICULARS
The majority of the Commission erred in law in holding that the application at first instance sought no alteration to the scope of the Contract Cleaners (Ministry of Education) Award 1990.
Further, Commissioner Kenner erred in law in holding that s 29A(2) of the Act should be read down and only apply (to) applications to the variation to the scope of common rule awards."
The first thing to notice about s 29A(2) of the Act is that it is jurisdictional in nature. The section prohibits the Commission from exercising jurisdiction in such cases in mandatory terms by providing that the Commission "shall not hear the claim or application until those parts of the proposed award, variation or industrial agreement that relate to the area of operational scope have been published in the Industrial Gazette".
It is to be noted that nowhere in s 29A(2) is there any limitation which would restrict the operation of the provision to awards which apply by operation of common rule. Counsel for the respondent argued that the intent of s 29A was clear in that the section was designed to provide for notice of applications to parties that would otherwise not receive notice of the application. In relation to an award which had a common rule provision advertising in the Industrial Gazette was the means by which respondents who may be bound by the award by reason of the common rule provision would have notice of the proposed application. It was contended by counsel for the respondent that in a situation such as the present, where all of the respondents had been served with the application advertising in the Industrial Gazette was therefore not necessary.
The difficulty with such a contention is that it flies in the face of the express words of the section.
[2001] WASCA 19
Scott J
Counsel brought to the attention of this Court the provisions of s 18 of the Interpretation Act 1984 which provides:
"18 Regard to be had to purpose or object In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object."
In the event of ambiguity in the construction of a statute, s 18 of the Interpretation Act is a useful provision which enables a court to interpret the provision of a statute in such a way as to facilitate the underlying purpose or object of such a provision. The difficulty in this case, however, in my view, is that there is nothing in s 29A(2) in relation to the problem presently being discussed, which is in any way ambiguous or capable of more than one meaning. There is no limitation in that section nor any confining words which would direct a court to limit its operation to cases where a common rule award falls for consideration.
Counsel for the respondent also contended that the addition of named respondents to the award did not alter the "scope" of the award so as to attract the operation of s 29A(2). In that respect it is to be noted that in Australasian Meat Industry Employer's Union Industrial Union of Workers West Australian Branch v Stewart Butchering Co Pty Ltd (1993) 73 WAIG 1196, Sharkey P delivering the joint reasons for decision of himself and Commissioner Parks said at 1200:
"S 38(2) of the Act authorises the addition of named parties in certain circumstances. However, the exemption of a respondent, whether named or not, who would otherwise be bound by the award, narrows the scope of the award by reducing, by one in this case, those employers in the industry or industries denoted or designated by the Scope clause and therefore bound by the award under s 37, upon a reading of clause 3 of the award. This application plainly sought to vary the award by varying the Scope clause. It is not a variation of any other clause in the award and its effect is plain.
S 29A(2) of the Act provides that subject to any direction given under s 29A(2)(a), if the reference of an industrial matter to the Commission seeks, inter alia, the variation of the scope of an
[2001] WASCA 19
Scott J
Parker J
award, then the Commission shall not hear the claim or application until those parts of the proposed award, variation or industrial agreement which related to the scope, etc, was published in the Industrial Gazette and a copy served on the Trades and Labour Council of Western Australia, the Australian Mines and Metals Association (Inc) and the Minister, as well as such other organisations, associations and employers as the Commission may direct under s 29A(2)(a)(ii) (but see s 29A(1) and (2) generally).
…
The direction contained in the section is mandatory, the word 'shall' is used (see s 3 and s 56 of the Interpretation Act 1984), and the Commission is prohibited from hearing the matter if s 29A(2) is not complied with by such publication and services are prescribed.
In hearing the matter when s 29A was not complied with, the Commission at first instance erred in law. It had no power to hear the matter and was expressly prohibited from hearing it if s 29A(2) had not been complied with."
I respectfully agree entirely with what Sharkey P said in that judgment, particularly with respect to the provisions of s 29 being mandatory. In addition, I agree with the learned President's observation that the alteration of named respondents to an award is a variation to the "scope" of the award so as to attract the provisions of s 29A.
In the end result, therefore, regrettable though the conclusion is, I am of the view that the appeals should be allowed and the matters remitted to a single commissioner to be dealt with according to law after the provisions of s 29A of the Industrial Relations Act have been complied with.
I would finally add that if the intention of Parliament was that s 29A(2) should apply only to common rule awards, then the section should be amended to say so.
PARKER J : I have had the advantage of reading in draft the reasons now published by Scott J with which I agree. I would add the following observations.
[2001] WASCA 19
Parker J
Section 29A(2) of the Industrial Relations Act 1979, relevantly, precludes the Commission from hearing a claim or application until there has been published in the Industrial Gazette "those parts of the proposed award, variation or industrial agreement that relate to area of operation or scope" of an award or industrial agreement. The terms and context of s 29A(2) do not, in my view, allow room for the Commission to avoid or overlook the need for compliance with the requirement for publication before it hears the claim or application, and provides no justification for reading down or limiting its operation to common rule awards as has been suggested.
The submissions to this Court sought in various ways to draw a clear distinction between "the scope" and "the area of operation" of an award or industrial agreement. Neither of these concepts are defined in the Act although s 37(1), which is headed "Effect, area and scope of awards", contains provisions which have an effect on both. In my view there is every reason to allow these two concepts to have their ordinary and natural meanings in this context, a view that is quite consistent with the provisions of s 37(1). One effect of this is that the two concepts should not necessarily be seen to be entirely distinct. As a matter of ordinary usage the area of operation and the scope of an award or agreement may well overlap in a particular context. Much will depend on the terms of a particular award or industrial agreement.
The Shorter Oxford Dictionary relevantly offers as a meaning of "scope" - "The sphere or area over which any activity operates; range of application; the field covered by a branch of knowledge, an inquiry etc". Section 37(1)(a) provides:
(1) An award has effect according to its terms, but unless and to the extent that those terms expressly provide otherwise it shall, subject to this section -
(a) extend to and bind - (i) all employees employed in any calling mentioned therein in the industry or industries to which the award applies; and
(ii)
all employers employing those employees"
The three elements so identified in s 37(1)(a), viz an industry, employees in a calling, and employers of those employees are, separately and
[2001] WASCA 19
Parker J
together, capable as a matter of ordinary meaning and usage of offering a
definition, or part of the definition, of the scope of an award.
However, those provisions of s 37(1)(a) do not apply to all awards. The introductory provisions of s 37(1) give primacy to the terms of an award. In this case the award, the Contract Cleaners' (Ministry of Education) Award, 1990, provides in cl 3 -
"3. Scope This Award shall apply to:
(a) Cleaners who are employed by the named respondents in the industry of Contract Cleaning of Government Schools in the State of Western Australia; and (b) To all those employers employing those cleaners."
Clause 3 clearly makes different provision from s 37(1)(a) with respect to employees and employers. Only employees employed by the named respondents are covered by the award and the named respondents are the only employers covered. In these respects it appears to me to be clear that the scope of the award does not extent beyond those employees and employers.
By the application before the Commission the respondents sought to vary the award by adding further named respondents. In my view, necessarily, this application sought to alter the scope of the award by adding additional employers who would thereby become bound by the award for the first time and, consequentially, that would expand the sphere of operation of the award to the employees of those additional employers engaged in the relevant industry.
It follows from this reasoning that there may be an application to add named employers to an award which would not involve an alteration to the scope of the award. That would seem to be the case at least in a case where the provisions of s 37(1)(a) (i) and (ii) applied to the award as by s 37(1)(a)(ii) all employers of the relevant employees would already be bound by the award and therefore within its scope. For the reasons already noted, however, that is not the present case as the terms of this award make materially different provision from s 37(1)(a)(i) and (ii).
3
0
2