Angyal v Industrial Relations Commission of New South Wales

[2005] NSWCA 155

CITATION:	Angyal & Ors v Industrial Relations Commission of New South Wales & Ors [2005] NSWCA 155
HEARING DATE(S):	2 May 2005
JUDGMENT DATE:	2 May 2005
JUDGMENT OF:	Handley JA at 1, 25; Hodgson JA at 23; McClellan AJA at 24
DECISION:	Orders restraining the Industrial Relations Commission from hearing and determining the proceedings commenced by the second and third opponents.

CATCHWORDS:	INDUSTRIAL LAW - unfair contracts - performance of work in an industry - D
LEGISLATION CITED:	Industrial Relations Act 1996 s 106
CASES CITED:	Ex parte VG Haulage Services Pty Ltd re The Industrial Commission of New South Wales (1972) 2 NSWLR 81 Majik Markets Pty Ltd v Brake and Service Centre Drummoyne Pty Ltd (1992) 28 NSWLR 443 Mitchforce Pty Ltd v Industrial Relations Commission (2003) 57 NSWLR 212 Production Spray Painting & Panel Beating Pty Ltd v Newham (1991) 27 NSWLR 644 Solution 6 Holdings Ltd v Industrial Relations Commission of New South Wales (2004) 60 NSWLR 558 Stevenson v Barham (1977) 136 CLR 190
PARTIES:	Robert Angyal (First Claimant) Robert Kaye (Second Claimant) Paul Fury (Third Claimant) John Scot Wheelhouse (Fourth Claimant) Lewis De Vere Tyndal (Fifth Claimant) Michelle Painter (Sixth Claimant) Sixth Floor, St James Hall Pty Ltd (Seventh Claimant) Industrial Relations Commission of New South Wales (First Opponent) Sweeney & Vandeleur Pty Ltd (Second Opponent) Charles Sweeney (Third Opponent)
FILE NUMBER(S):	CA 41056/04
COUNSEL:	G Hatcher QC/L Clegg (Claimants) Submitting appearance (First Opponent) No appearance (Second and Third Opponents)
SOLICITORS:	Macquarie Legal Practice (Claimants) I V Knight, Crown Solicitor (First Opponent) Noel F Bracks & Co (Second and Third Opponents)

LOWER COURT JURISDICTION:
LOWER COURT FILE NUMBER(S):	IRC 2951/04

CA 41056/04

HANDLEY JA
HODGSON JA
McCLELLAN AJA

2 MAY 2005

ROBERT ANGYAL & ORS v INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES & ORS

CATCHWORDS

INDUSTRIAL LAW – unfair contracts – performance of work in an industry

FACTS

A barrister and his service company commenced proceedings in the Industrial Relations Commission (IRC) seeking relief under s 106 of the Industrial Relations Act 1996. The proceedings arose from arrangements between a group of barristers for the lease and sub-leasing of chambers. The other barristers and the chambers company sought orders restraining the IRC from hearing and determining the s 106 proceedings for lack of jurisdiction. The applicants in the IRC alleged that the arrangement with the chambers company and the other barristers was a contract whereby work was performed in an industry because the barrister was performing such work, or because the clerking and secretarial staff employed by the chambers company were doing so. HELD: (1) The relevant work performed must be work for another person. The work of the barrister was not within the section because he was working for himself and did not relevantly perform work for anyone else. (2) The jurisdiction of the IRC under s 106 is restricted to contracts which lead directly to the performance of work in an industry. The impugned contract did not lead directly to the performance of work by the clerking and secretarial staff.

ORDERS

Orders restraining the Industrial Relations Commission from hearing and determining the proceedings commenced by the second and third opponents.

IN THE SUPREME COURT

CA 41056/04

HANDLEY JA
HODGSON JA
McCLELLAN AJA

2 MAY 2005

ROBERT ANGYAL & ORS v INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES & ORS

Judgment

1 HANDLEY JA: The Court has before it a summons dated 13 December 2004 by which the claimants seek prerogative relief in the nature of prohibition to restrain further proceedings in the Industrial Relations Commission brought by Mr Charles Sweeney of Queen’s Counsel (the barrister) and a company he controls (the Shareholder) who are the third and second opponents to the summons. The first opponent is the Commission itself and it has lodged a submitting appearance. The other opponents indicated that they would not appear in this Court.

2 The second and third opponents applied to the Industrial Relations Commission on 20 May 2004 seeking relief under s 106 of the Industrial Relations Act 1996. Sub-section (1) of that section provides:

“The Commission may make an order declaring wholly or partly void or varying any contract whereby a person performs work in any industry if the Commission finds that the contract is an unfair contract.”

3 An amended summons in the Commission was filed on 21 June 2004.

4 It will be apparent from the section and this is confirmed by the case law that the fundamental jurisdictional fact which the Commission has to determine before it can exercise its wide powers is whether there is or is not a contract as defined “whereby a person performs work in any industry.” The amended summons in the Commission seeks to find a basis for jurisdiction in one or other or both of two contracts or arrangements.

5 The proceedings arise out of arrangements between a group of barristers for a company to be incorporated which would take a lease of premises in 169 Phillip Street Sydney which would then be licensed or subleased to the Shareholders as chambers in which they could carry on the practice of their profession. The arrangements also provided for the Company to employ a clerk, telephonist and other secretarial and support staff to perform administrative services for the benefit of the barrister shareholders, or their licensees or subtenants.

6 These arrangements were documented firstly in the Articles of Association of the seventh claimant (the Company), secondly in a Shareholders Agreement to which the Shareholder under its former name was a party entered into in 1992, and thirdly in a User Agreement between the barrister the Shareholder and the Company dated 27 October 1995. The Articles of Association are in a familiar form where the Company provides accommodation for the domestic or business purposes of its shareholders. They create rights of occupation of defined spaces in favour of shareholders with provision for sublicensing or subleasing, restrictions on the use to which the spaces can be put, and provision for the payment of levies and other amounts so that the Company can meet its obligations.

7 In my judgment there is nothing in the Articles of Association which could remotely be regarded as a contract or arrangement whereby work was performed by the barrister in an industry. The articles relevantly do no more than create bare occupation rights in favour of shareholders.

8 The Shareholder’s Agreement states in recital C:

“The Company has agreed to provide the premises to the Shareholders as indicated in this document and also to provide clerical, secretarial and other administrative services to the Shareholders (which services are referred to in this document as the services) on the terms and conditions contained in this document.”

9 The relevant operative provision is cl 1 which commences:

“In consideration of the Company entering into the lease and agreeing to provide the services at the request of the Shareholders …”

10 The clause imposed obligations on the Shareholder to make payments to the Company to cover its outgoings and other expenses.

11 The User Agreement recited that the Company has agreed to provide a particular room for the benefit of the Shareholder on the terms contained in the Articles of the Company on the condition that the Shareholder and the barrister enter into a User Agreement. The only relevant operative provision is cl 2 which provides:

“The Shareholder nominates the User to use the room as barrister’s chambers and for secretarial and ancillary services for that use.”

12 Clause 3 provided for the barrister and the Shareholder to be jointly and severally liable to the Company for the payment of levies under the Articles.

13 The bases for jurisdiction propounded in the amended summons in the Industrial Commission are firstly, that the barrister was performing work in an industry under one or more or all of these contracts or arrangements. Secondly, that the contracts or arrangements between the Company the barrister and the Shareholder were contracts or arrangements whereby the Company supplied clerking, secretarial and other services and thereby caused work to be performed in an industry.

14 This Court has held that a contract or arrangement cannot be one whereby work is performed in an industry unless it is a contract whereby a person works wholly or partly for another. I refer in particular to Production Spray Painting & Panel Beating Pty Ltd v Newham (1991) 27 NSWLR 644, particularly at 654, 655; Majik Markets Pty Ltd v Brake and Service Centre Drummoyne Pty Ltd (1992) 28 NSWLR 443, at 464, 465 and Mitchforce Pty Ltd v Industrial Relations Commission (2003) 57 NSWLR 212, at 218-220, 249, 250.

15 The barrister did not relevantly perform work for anyone else. He was certainly not working for the Company. There is no need to express any view on whether a barrister at the private Bar is in an industry.

16 The other basis on which jurisdiction was asserted is that the contracts or arrangements between the barrister and the Company were ones whereby the clerking and clerical staff employed by the Company performed work in an industry. The clerical staff employed by the Company do work in an industry but the decisions of this Court and the decision in Stevenson v Barham (1977) 136 CLR 190 establish that jurisdiction under this section does not exist unless the work was done directly under the impugned contracts or arrangements.

17 In Mitchforce Pty Ltd v Industrial Relations Commission (above) Spigelman CJ at 217-8 quoted the judgment of Jacobs JA in Ex parte VG Haulage Services Pty Ltd re The Industrial Commission of New South Wales (1972) 2 NSWLR 81, 88 where his Honour said:

“It seems to me that the Legislature was concerned to empower the industrial tribunals to examine contracts and arrangements which led directly to the employment of persons and the performance of work in any industry not simply because the contract or arrangement in the commercial sense involves the provision of goods and services with a consequent performance of work in an industry but rather because the impugned agreement or arrangement itself directly envisages the employment of a person or persons in industry and has a recognisable impact upon the conditions of that employment.”

18 The contracts or arrangements between the barrister the Shareholder and the Company are contracts of the first type described by Jacobs JA, that is they are contracts or arrangements which in a commercial sense involved the provision of goods or services with a consequent performance of work in an industry. The contracts or arrangements did not themselves lead directly to the performance of that work and have a recognisable effect on the conditions of employment of the persons who performed it.

19 The statement of principle by Jacobs JA was approved in Stevenson v Barham (1977) 136 CLR 190 at 200 by Mason and Jacobs JJ and at 192 by Barwick CJ. Examples given in the cases where the contract or arrangement does not lead directly to the performance of work in an industry within the section include sales by a shop assistant who served the customer and works in the retail industry, and contracts of loan, insurance or for the sale or purchase of securities which lead indirectly to the performance of work in the finance, insurance or securities industries.

20 In my judgment therefore the second basis on which the barrister and the Shareholder sought to invoke the jurisdiction under s 106 is absent and the Commission has no jurisdiction in respect of the contracts or arrangements in question.

21 The only remaining matter is whether this Court should intervene at this stage or should allow the Industrial Relations Commission to decide the question of jurisdiction for itself. This matter is really covered as far as this Court is concerned by our decision in Solution 6 Holdings Ltd v Industrial Relations Commission of New South Wales (2004) 60 NSWLR 558 particularly at 592 and 595 in the judgment of the Chief Justice and at 600-601 in my own.

22 I therefore propose that orders be made in accordance with prayers 2 and 3 of the summons. I would order that the second and third opponents pay the claimants’ costs of these proceedings, and that the claimants pay the costs of the first opponent as a submitting defendant with liberty to include those costs in the costs it is entitled to recover from the second and third opponents.

23 HODGSON JA: I agree. I would add that even if it may possibly be said that Mr Sweeney was working for a person or persons other than himself when performing work as a barrister, those persons were his clients. In my opinion it cannot possibly be said that a contract or arrangement, pursuant to which chambers are made available to him, is a contract or arrangement whereby he performs work in an industry.

24 McCLELLAN AJA: I agree with Handley JA.

25 HANDLEY JA: The orders are as I have announced.

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