Australian Broadcasting Commission v Industrial Court (SA)

[1977] HCA 51

HIGH COURT OF AUSTRALIA

Barwick C.J., Gibbs, Stephen, Mason and Murphy JJ.

AUSTRALIAN BROADCASTING COMMISSION v. INDUSTRIAL COURT (S.A.)

(1977) 138 CLR 399

29 September 1977

Constitutional Law (Cth)

Constitutional Law (Cth)—Inconsistency between Commonwealth and State laws—State law empowering State court to determine whether dismissal of an employee harsh, unjust or unreasonable and to order reinstatement—Commonwealth law empowering Australian Broadcasting Commission to engage employees upon such terms and conditions as it determines—The Constitution (63 &64 Vict. c. 12), s. 109—Industrial Conciliation and Arbitration Act, 1972 (S.A.), ss. 6, 15, 114—Broadcasting and Television Act 1942 (Cth), ss. 42, 43 (6).

Decisions

1977, September 29.
The following written judgments were delivered: -
BARWICK C.J. I have had the advantage of reading the reasons for judgment prepared in this matter by my brother Mason. I agree with his conclusion that s. 15 (1) (e) of the Industrial Conciliation and Arbitration Act, 1972 (S.A.) is inconsistent with the provisions of the Broadcasting and Television Act 1942 (Cth), as amended, both as to permanent and temporary employees of the Commission. I agree with my brother's reasons for this conclusion. The order for prohibition should be made absolute. (at p401)

GIBBS J. I have had the advantage of reading the reasons for judgment prepared by Stephen J. and those prepared by Mason J. The facts of the case and the statutory provisions that fall for consideration are set out in those judgments. I agree with the conclusion that my brothers have reached and may express my reasons quite briefly. (at p401)

2. In my opinion if the provisions of s. 15 (1) (e) of the Industrial Conciliation and Arbitration Act, 1972 (S.A.), upon their proper construction, give the Industrial Court of South Australia jurisdiction to hear and determine a question as to the dismissal from his employment of a temporary employee of the Australian Broadcasting Commission ("the Commission") those provisions are inconsistent with sub-ss. 43 (2) and 43 (6) of the Broadcasting and Television Act 1942 (Cth), as amended, and to the extent of that inconsistency are invalid. The provisions of s. 43 (2) expressly cast upon the Commission a duty, and by necessary implication confer upon it a power, to engage such temporary employees as it thinks necessary. The effect of the sub-section clearly is that if the Commission does not think it necessary to engage a temporary employee it need not do so. The provisions of s. 15 (1) (e), if they apply to temporary employees of the Commission, empower the Industrial Court of South Australia to direct the Commission to re-employ an employee who has been dismissed. In other words, on that construction, the Industrial Court has power to order the Commission to engage a temporary employee, albeit that he was previously employed, whether the Commission thinks it necessary or not. Here in my opinion is a direct inconsistency: the State Act, on the construction suggested, enables the Industrial Court to override the discretion which the Commonwealth Act confides to the Commission. (at p402)

3. By s. 43 (6) the terms and conditions of employment of temporary employees are such as are determined by the Commission with the approval of the Public Service Board. But if the Industrial Court makes an order under s. 15 (1) (e), it may direct that the employee be re-employed on terms that are not less favourable to the employee than if he had not been dismissed from his employment. In other words the Industrial Court, and not the Commission with the approval of the Public Service Board, determines the conditions of employment of a temporary employee who is engaged pursuant to a direction of the Industrial Court given under s. 15 (1) (e). Here again is inconsistency: the Commonwealth Act shows that the terms and conditions are to be determined by the Commission with the approval of the Board, but the State Act allows the Industrial Court to determine the terms and conditions. (at p402)

4. In fact it does not appear from the material in the case that the Commission, with or without the approval of the Board, has determined the terms and conditions of employment of temporary employees. In the Full Court it was held by Bray C.J., with whom Sangster J. concurred, that until the Commission, with the approval of the Board, does determine the terms and conditions of employment of temporary employees, those terms and conditions are left to be regulated by the specific terms of any contract and by the general law. It would appear that s. 43 (6) does not require a determination and approval of a general kind; a determination in a particular case, and an approval of that determination, would seem to be enough. However, if it were right to assume that no determination within s. 43 (6) had been made in the present case, the view expressed by Bray C.J. would in my opinion be correct. The mere fact that the Commission is a body corporate set up by a Commonwealth statute does not render the general law inapplicable to its activities. It operates within the legal framework provided by the rules of the common law and the statutes of the State, except such rules as are excluded by the Broadcasting and Television Act or by any other Act of the Parliament. Bray C.J. gave examples of the way in which the statute law of the State may apply to the Commission: if the Commission holds land under the Torrens system the provisions of the Real Property Acts will apply to it as the registered proprietor of that land; if it buys or sells goods the provisions of the Sale of Goods Act will apply to the transaction; if it acquires motor vehicles and sends them onto the roads of the State any relevant provisions of the Road Traffic Act and of the Motor Vehicles Act will apply to the registration, insuring and manner of driving of such vehicles and the licensing of the drivers. These are useful examples, and correctly state the position if no law of the Commonwealth reveals a contrary intention. However I am unable to agree with the next step in the argument which was accepted by the majority of the Full Court. They held, in effect, that s. 15 (1) (e) is part of the general law regulating the terms and conditions of employment of employees, either because the provisions of that paragraph can be interpreted "as superadding a statutory adjunct to a contract of employment within its terms" or because it creates a quasi-contractual right which, as part of the ordinary civil law of the State, is enforceable against the Commission until federal legislation excludes it. With all respect, this is to give to the provisions of s. 15 (1) (e) a character which in truth they do not bear. Those provisions do not require a new term to be implied in every contract of employment. They do not give a quasi-contractual right to every employee. They confer jurisdiction and power upon the Industrial Court to make orders of the kind therein described. The jurisdiction is not limited to cases in which the dismissal has been in breach of contract or otherwise wrongful. Indeed it may exist notwithstanding that a term in the contract of employment expressly purports to exclude it. The Industrial Court is not given power to enforce a pre-existing right, but is given a discretionary power in certain circumstances to create a new right, by directing the re-employment of an employee who in the absence of any such direction has no right to be re-employed. It is not correct to say that one of the incidents of the employment of every temporary employee of the Commission - an incident provided by the general law - is a right to apply to the Industrial Court under s. 15 (1) (e). In other words s. 15 (1) (e) is not a part of the State law regarding contracts of employment upon which s. 46 is cumulative or supplementary, but (on the construction assumed) deals with the engagement of employees and the determination of the conditions of their employment in a manner inconsistently with s. 46. (at p403)

5. I have said that if s. 15 (1) (e) empowered the Industrial Court to order the re-employment of a temporary employee of the Commission, on terms which it specified, that would be inconsistent with sub-ss. (2) and (6) of s. 43. The question remains whether s. 15 (1) (e) enables the Industrial Court to make a declaration that a dismissal was harsh, unjust or unreasonable without proceeding to direct the re-employment of the employee concerned, and if so whether its provisions could have a partial application to temporary employees of the Commission which was not inconsistent with the Broadcasting and Television Act. In Reg. v. Industrial Court of South Australia; Ex parte General Motors-Holdens Pty. Ltd. (1975) 10 SASR 582 the majority of the Full Court of South Australia held that s. 15 (1) (e) cannot be "dismembered" so as to authorize the Industrial Court to make a declaratory order that the dismissal was harsh, unjust or unreasonable without proceeding to direct re-employment (1975) 10 SASR, at pp 602-603 . I do not need to consider whether I would go quite as far as the majority in that case. However it seems to me clear that the provisions of s. 15 (1) (e) cannot be severed so as to authorize the Industrial Court to make a declaration in a case in which it would have no power to make a substantive direction or order of the kind referred to in the section. The power of the Court to direct re-employment exists only if it finds that the dismissal was harsh, unjust or unreasonable. The only purpose of making a finding that the dismissal was harsh, unjust or unreasonable is to provide a foundation for the exercise of the discretion as to whether or not the Industrial Court should direct the employer to re-employ the employee or order that the employee should be paid a sum equal to the wages he would have received, although the Court, having made the necessary finding, may in the exercise of its discretion decline to make a direction or order. If the Court would have no power to direct the re-employment of the employee notwithstanding that it found that his dismissal was harsh, unjust or unreasonable, it has no power to consider whether his dismissal was of that nature. (at p404)

6. For these reasons I have reached the conclusion which I have already stated, that if the provisions of s. 15 (1) (e) apply to the dismissal of temporary employees of the Commission, they are inconsistent with the provisions of s. 43 (2) and 43 (6) of the Broadcasting and Television Act. It is therefore unnecessary to consider whether on the proper construction of the Industrial Conciliation and Arbitration Act the provisions of s. 15 (1) (e) do so apply. (at p404)

7. For these reasons I consider that the Industrial Court had no jurisdiction to entertain the present proceedings. I would allow the appeal and would make absolute the order nisi for prohibition. (at p405)

STEPHEN J. Mr. Gard was a temporary employee of the Australian Broadcasting Commission, employed in South Australia. He was dismissed from his employment and applied to the South Australian Industrial Court for a determination that his dismissal was harsh, unjust or unreasonable and for an order that the Commission re-employ him and pay him the wages he had lost in the meanwhile. (at p405)

2. The Industrial Court embarked upon the hearing of the application whereupon the Commission sought prohibition and certiorari from the Supreme Court which by a majority discharged the orders nisi (1976) 13 SASR 460; 25 FLR 271 . (at p405)

3. The Commission now appeals to this Court, special leave having been granted, and two distinct questions have been argued before us, whether the relevant provisions of the South Australian legislation invoked by Mr. Gard, the Industrial Conciliation and Arbitration Act, 1972, apply at all, as a matter of construction, to an employee of the Commission; if they do, whether they are pro tanto inconsistent with Commonwealth legislation, the Broadcasting and Television Act 1942. (at p405)

4. I deal first with the question of inconsistency. It is said to arise as between the terms of s. 15 of the South Australian Act, which confers upon the State's Industrial Court the jurisdiction which Mr. Gard seeks to invoke, and those parts of Div. 2 of Pt III of the Commonwealth Act which legislate for the case of temporary employees of the Commission. (at p405)

5. Section 15 (1) (e) of the South Australian Act is set out in full in other judgments; it expressly confers upon the Industrial Court jurisdiction to make the very type of determination and orders sought by Mr. Gard. Division 2 of Pt III of the Commonwealth Act is entitled "The Service of the Commission" and deals in considerable detail with those whom the Commission may employ, their promotion, tenure of office and discipline. Much of this applies only to officers of the Commission as distinct from temporary employees such as Mr. Gard. It is these officers, the permanent employees of the Commission, who constitute the service of the Commission (s. 46 (3) ). Only s. 42 and s. 43 (2) and (6) are expressed to apply to temporary employees. Section 42 does no more than preserve the operation of those Commonwealth awards and awards of the Public Service Arbitrator made before 1946 and applicable to the Commission and any of its officers or temporary employees. Section 43 (2) reads:

"The Commission shall appoint such other officers, and engage such temporary employees, as it thinks necessary."

Section 43 (6) is as follows:

"Subject to this Division, the terms and conditions of employment of officers and temporary employees appointed in pursuance of this section are such as are determined by the Commission with the approval of the Public Service Board."

The question is, then, whether these provisions of the Commonwealth Act are, on their proper construction, inconsistent with the State Act in so far as it purports to confer jurisdiction upon the State Industrial Court to make, in relation to a temporary employee of the Commission, orders such as Mr. Gard has sought. (at p406)

6. Inconsistency may manifest itself in a variety of ways, some producing direct collision between State and Commonwealth legislation, others involving indirect, and hence more subtle, contrariety. The present appeal involves, in my view, an instance of the former, powers conferred by Commonwealth legislation are disclosed as purporting to be dealt with by State legislation in a manner which impairs and may even inhibit their exercise. (at p406)

7. In considering whether there is any direct inconsistency it is enough to confine attention to an examination of the particular operation of the two laws said to collide one with the other; in doing so I assume, for present purposes, that as a matter of construction the terms of s. 15 (1) (e) are in all respects apt to apply to employees of the Commission. I will also disregard those portions of sub-ss. (2) and (6) of s. 43 which deal with officers of the Commission, as distinct from its temporary employees. (at p406)

8. The two sub-sections of s. 43 of the Commonwealth Act are not addressed to the community at large; they impose no general duties or prohibitions nor do they confer any right, power, or privilege in favour of members of the public at large. Instead they are wholly domestic in nature, domestic to the Commission and concerned only with its staffing. Sub-section (2), so far as presently relevant, requires (and thereby empowers) the Commission to engage such temporary employees as it thinks necessary; then, once engaged, their terms and conditions of employment, says sub-s. (6), are to be such as the Commission, with the approval of the Public Service Board, determines. The State law, s. 15 (1) (e), is quite different in character. Its function is to confer a particular jurisdiction upon the South Australian Industrial Court; it is quite general in its application dealing as it does with one aspect of the topic of industrial relations, that concerned with allegedly improper dismissal. It has been the subject of detailed analysis by the Full Court of the South Australian Supreme Court in Reg. v. Industrial Court of South Australia; Ex parte General Motors-Holdens Pty. Ltd. (1975) 10 SASR 582 and I agree with and would, with respect, adopt as my own what was there said in the judgment of the learned Chief Justice of South Australia and in the joint judgment of Walters and Wells JJ. as to all aspects of the operation and effect of s. 15 (1) (e) other than one, whether parts of it are severable; on this aspect opinion was divided in the Full Court and I shall have occasion to revert to this question later in this judgment. (at p407)

9. The two enactments, State and Commonwealth, only make contact the one with the other because the Commission, established under the Commonwealth Act, is an employer empowered to enter into and in fact entering into industrial relationships with its employees in the State of South Australia. The State Act operates upon this situation when it confers this jurisdiction under s. 15 (1) (e) upon the Industrial Court in terms which, as for present purposes I assume, aptly extend to the industrial relationships of the Commission with its South Australian employees. (at p407)

10. I go first to the interaction of sub-s. (6) of s. 43 with the State Act. That sub-section leaves to the determination of the Commission, subject only to Public Service Board approval, the terms and conditions of employment of such temporary employees as the Commission may appoint. Then s. 15 (1) (e) of the State Act does three things. First it confers jurisdiction upon the Industrial Court to hear and determine the question whether a dismissal was harsh, unjust or unreasonable. Secondly, it confers upon the Industrial Court a discretionary power, should it think fit, to direct the re-employment of the dismissed employee in his former position on terms that are not less favourable than if he had not been dismissed. Thirdly, it confers a further discretionary power of ordering payment of the wages which the former employee would have received had he remained employed in the interim. (at p407)

11. It is only the second of these three provisions of s. 15 (1) (e) that gives rise to direct inconsistency. To give power to the Court to direct the Commission to re-employ a dismissed employee on specified terms, terms no less favourable than had he not been dismissed, is necessarily to impair the power conferred on the Commission by sub-s. (6) of s. 43 to determine the terms and conditions of employment of its temporary employees. No longer is the Commission able to determine for itself, as the Commonwealth legislation has intended that it should, what shall be those terms and conditions in the case of temporary employees. Instead, in the case of an employee obtaining such an order from the Industrial Court, the Commission's hands are to be tied and it must, when re-employing the employee, accord him terms and conditions which will not be of its own choice. That the terms and conditions thus imposed upon the Commission are, historically, originally of its own making is nothing to the point. When the Commission is engaged in the employment of staff s. 43 (6) requires that it should be able to determine for itself what are to be the terms and conditions of employment. This requirement applies equally to staff wholly new to its employ and to former staff which it chooses to reemploy. In seeking to deprive the Commission of this power s. 15 (1) (e) manifests direct inconsistency with s. 43 (6). (at p408)

12. A similar result flows from the interaction of the State Act with s. 43 (2). The latter requires (and thereby authorizes) the Commission to engage such temporary employees as it thinks necessary; s. 15 (1) (e), on the other hand, deprives it, in the case of a former employee who has obtained an appropriate order from the Industrial Court, of that freedom of action conferred by the words "as it thinks necessary". Sub-section (2) does more than merely empower the Commission to engage employees, it envisages that the Commission should determine what employees are necessary and that it should only engage such as it thinks to be necessary. State legislation authorizing the Industrial Court to compel the Commission to re-employ a temporary employee, regardless of what the Commission may think to be necessary, is very directly and substantially to impair any exercise of the power conferred by s. 43 (2). Again this demonstrates direct inconsistency between the State legislation and that of the Commonwealth. (at p408)

13. In the Full Court Bray C.J., with whom Sangster J. agreed, regarded as critical the absence of evidence that the Commission had ever made such a determination of the terms and conditions of employment of temporary employees as he regarded s. 43 (6) as contemplating. Absent such a determination, the effect of s. 43 (6) was said to be that terms and conditions of employment would be left to be regulated by individual contracts of employment and by the general law, in Mr. Gard's case the general law of South Australia including therein s. 15 (1) (e). This view involves assigning to s. 43 (6) a meaning different from that which I regard it as bearing, a meaning which treats it much as if it were some grant of regulation-making power which, until formal exercise, has no operative effect. (at p409)

14. Sub-section (6) is a common form provision found in many Commonwealth Acts establishing statutory authorities possessing their own staffs. I would regard it as contemplating no particular act of determination of some standard terms and conditions for the employment of temporary employees of the Commission. On the contrary its effect, when read together with sub-section (2), is, I think, rather to invest the Commission with unfettered power to engage such temporary employees as it thinks necessary, engaging them upon such terms and conditions as (subject to Public Service Board approval) it thinks fit. The engagement of temporary staff would no doubt for many years have been an everyday event in the case of an authority undertaking such extensive activities as the Commission has long performed. The terms and conditions of employment of such employees may well have varied from time to time and from one employee to the next. Each time such an employee has been engaged there has been an exercise of the powers conferred by these two sub-sections; it has required no particular exercise of these powers to give to sub-s. (6) its full effect. That effect, which was to confer the power which I have described upon the Commission (subject to Public Service Board approval) to the exclusion of any other body, has instead been manifested for as long as the Commission has possessed and exercised these powers. The two sub-sections, so long as they remain unrepealed, are effective within the sphere of Commonwealth law to preserve intact these exclusive powers of the Commission. In our federal polity they would, however, be at risk from State legislation were it not for s. 109 of the Constitution; that section ensures that State legislation shall not prejudice the Commission's exercise of these powers with which the Commonwealth Parliament has invested it. (at p409)

15. The instances of direct inconsistency referred to above call for little citation of authority to support the conclusion that they fall within s. 109 of the Constitution. It will be enough to refer, as did Bray C.J. in his reasons for judgment in the Court below, to what was said by Fullagar J. in Williams v. Hursey (1959) 103 CLR 30, at pp 68-69 . The learned Chief Justice, because of views he earlier expressed, was able to exclude from consideration the words of Fullagar J.; for me, in the light of the conclusions to which I have come, they are very much in point. His Honour was concerned with the case of a trade union registered under and given legal personality by Commonwealth legislation. Its registered rules derived their authority from that legislation and empowered the union to levy its members for the support of political parties; State legislation was said to provide to the contrary. It was in these circumstances that Fullagar J., with whom the Chief Justice and Kitto J. agreed, said (1959) 103 CLR 30, at pp 68-69 :

"This being the position under the Commonwealth Act, and these being the powers which the incorporated organization has by virtue of its own registration and the registration of its rules under that Act, it must be beyond the power of any State to alter that position or to qualify those powers. No State could a priori forbid or ex post facto annul a power which is derived in this way from a law of the Commonwealth. Any attempt to do any such thing would involve a plain inconsistency within the meaning of s. 109 of the Constitution. No State Act could restrict the powers of the Commonwealth Bank or the Australian Broadcasting Commission. It is not merely that the State would be forbidding something which the Commonwealth permitted, as in Colvin v. Bradley Bros Pty Ltd. (1943) 68 CLR 151 and O'Sullivan v. Noarlunga Meat Ltd. (1954) 92 CLR 565. . The State would be invading a territory which the Commonwealth has marked out as its own and for which it has made exhaustive and exclusive provision. It has laid down what is to be the law relating to the powers and functions of its own specially created corporations." (at p410)

16. In the present case I have confined myself to date to the direct inconsistency which, to my mind, clearly emerges from an examination of the two sets of laws. In Blackley v. Devondale Cream (Vic) Pty. Ltd. (1968) 117 CLR 253, at p 258 Barwick C.J., in a like situation, said:

"In my opinion, there is no need in this case to seek to define the intended field of the federal legislation in order to resolve the question of inconsistency. The case, to my mind, is one of direct collision in which the State law, if allowed to operate, would impose an obligation greater than that which the federal law has provided should be the amount which the employer should be bound by law to pay."

It is with regret that I conclude that in the present case I cannot myself adhere to the simple course which was there open to the Chief Justice; I must in this case say something about "the intended field of the federal legislation" since it bears upon the precise extent of inconsistency and, in turn, upon the precise effect which it will have upon the operation of s. 15 (1) (e). (at p411)

17. The direct inconsistencies on which I have relied are effective to prevent either of the two discretionary remedies which s. 15 (1) (e) provides being available as against the Commission. There remains, however the originating application under s. 15 (1) (e) for a determination whether or not Mr Gard's dismissal was harsh, unjust or unreasonable. May this still be proceeded with although incapable of leading to any curial relief in favour of Mr. Gard? The majority of the Full Court of the South Australian Supreme Court answered this question in the negative in Reg. v. Industrial Court of South Australia; Ex parte General Motors-Holdens Pty. Ltd. (1975) 10 SASR 582 , upon the ground that "it is impossible to dismember par. (e) in this way"; if the remedies contemplated by the paragraph became unavailable the bare declaratory power would suffer the same fate. Bray C.J. took a contrary view. (at p411)

18. I find it unnecessary to choose between these two views since I conclude that the declaratory part of par. (e), although not directly inconsistent with Commonwealth legislation, is indirectly inconsistent with it since it enters upon a field which the Commonwealth legislation may be seen to have exclusively occupied. (at p411)

19. The terms of s. 43 (2) and (6) do to my mind disclose a legislative intent that the subject matter comprising the engagement of temporary employees of the Commission and their terms and conditions of employment should be exclusively within the province of the Commonwealth Act. Such a subject matter, or field, must, I think, include within its bounds not only engagement of such employees and their terms and conditions of employment but also their dismissal, which is either itself a part of the terms and conditions of employment or is inextricably associated both with them and with the engagement of employees. If so, a power to pronounce upon the harshness etc. of a dismissal, although concerned with different criteria from that involved in whether a dismissal be wrongful in the sense of being in breach of contract, should, I think, nevertheless be regarded as an intrusion into the field which I have indicated as having been occupied exclusively by the Commonwealth Act. I accordingly conclude that no part of s. 15 (1) (e) of the State Act may be invoked against the Commission. (at p411)

20. In these circumstances it is unnecessary for me to pass to any consideration of the proper construction to be placed upon s. 15 (1) (e); it can in no event have any application to a former employee of the Commission who complains of the circumstances of his dismissal. (at p412)

21. I would allow the appeal and make the order nisi for prohibition absolute. (at p412)

MASON J. Alfred Harold Bretnall Gard was employed by the Australian Broadcasting Commission ("the Commission") as a temporary employee in the capacity of a racing commentator. He was dismissed by the Commission on 25th January 1975. He thereupon applied to the Industrial Court of South Australia under s. 15 (1) (e) of the Industrial Conciliation and Arbitration Act, 1972 ("the South Australian Act") for a determination that his dismissal was harsh, unjust or unreasonable and for an order directing the Commission to reemploy him in his former position on terms not less favourable than if he had not been dismissed and for payment of wages lost. When the application came on for hearing the Commission contended that the Court had no power to make an order in favour of Gard because he was an employee of the Commission which was an agency or instrumentality of the Commonwealth, on the ground that the jurisdiction of the Industrial Court in relation to such an employee is denied by the provisions of s. 15 (2) and s. 114 (2) of the South Australian Act. The Commission further submitted that if the provisions of the South Australian Act, according to their true construction, conferred jurisdiction on the Court to make an order against the Commission for the reinstatement of an employee, they were to that extent inconsistent with the provisions of the Broadcasting and Television Act 1942-1974 (Cth) and were therefore inoperative. The Industrial Court rejected these objections to its jurisdiction, holding that it had jurisdiction to entertain the application and grant the relief sought. (at p412)

2. The Commission then sought in the Supreme Court of South Australia relief by way of certiorari and prohibition directed to the Industrial Court. By majority (Bray C.J. and Sangster J., Hogarth J. dissenting) the Full Court held that the Industrial Court had jurisdiction (1976) 13 SASR 460; 25 FLR 271 . The Commission now seeks special leave to appeal from the order of the Full Court discharging the orders nisi for certiorari and prohibition. Mr. Gard has been joined as a second respondent. (at p412)

3. So far as it is presently material, s. 15 (1) (e) of the South Australian Act confers jurisdiction on the Industrial Court

"to hear and determine any question as to whether the dismissal from his employment of an employee, not being an employee who has under any Act or law a right of appeal or review against his dismissal, was harsh, unjust or unreason and the Court may, if it thinks fit, direct the employer of that employee to re-employ that employee in his former position on terms that are not less favourable to the employee than if he had not been dismissed from his employment and without limiting the generality of the foregoing may order that the employee be paid a sum not exceeding a sum equal to the wages that he would have received had he been employed in that employment between the time of his dismissal and the time at which he was re-employed but the Court shall not exercise the jurisdiction conferred on it by this paragraph unless an application invoking that jurisdiction is made, by or on behalf of the dismissed employee, within twenty-one days from the day on which it is alleged that the employee was so dismissed from his employment." (at p413)

4. Section 15 (2) provides:

"A claim under paragraph (d) of subsection (1) of this section may be made on behalf of an employee or former employee, by a registered association but nothing in this section shall be construed so as to prevent a claim under this section being made otherwise than by a registered association." (at p413)

5. Section 6 contains certain definitions which are also material:

"'employee' means - (a) any person employed for remuneration in any industry; ..."

"'employer' includes any person or body, whether corporate or unincorporate, who or which on behalf of himself or itself or another employs one or more employees in any industry ..."

"'industry' means any undertaking, trade, business, occupation or calling in which persons are employed or engaged for remuneration or reward and without limiting the generality of the foregoing includes any such undertaking, trade, business, occupation or calling carried on or engaged in by - (a) the Crown or any instrumentality or agency of the
Crown;

..." (at p413)

6. Section 114 appears in "Division I - Registration" in Pt IX of the Act which is headed "Associations". Section 114 provides:

"(1) For the purposes of this Part, but subject to

sub-section (2) of this section -

'employee' (without limiting the generality of the definition contained in section 6 of this Act) includes - (c) a person employed by the Government of the Commonwealth or an instrumentality or agency of that Government;

(2) Nothing in this Act shall be held or construed as making or purporting to make an award or order binding on or applicable to any person, referred to in paragraph (c) of the definition of employee in subsection (1) of this section, in his capacity as such." (at p414)

7. I do not propose to embark upon an examination of the question whether the South Australian Act in terms confers jurisdiction on the Industrial Court to make an order against the Commission for reinstatement of an employee because I have come to the conclusion that if s. 15 (1) (e) does confer such jurisdiction on the Industrial Court it is inconsistent with the provisions of the Broadcasting and Television Act and is to that extent inoperative by reason of the provisions of s. 109 of the Commonwealth of Australia Constitution. I am prepared to assume, without so deciding, that the Commission carries on an undertaking, that it employs employees in an "industry" as that word is defined by s. 6 (1) and that the Commission is therefore an "employer" within the meaning of that word as it is defined in the same sub-section. (at p414)

8. Making these assumptions I turn to the provisions of the Broadcasting and Television Act. The Act incorporates the Commission (s. 30 (2) ). Division 2, Pt III of the Act is headed "The Service of the Commission". Section 43 (3) provides that the officers of the Commission shall constitute the service of the Commission and thereby draws a distinction between officers of the Commission and temporary employees of the Commission. Section 43 (1) makes provision for the appointment of a general manager. Section 43 (2) provides that the Commission shall appoint such other officers and engage such temporary employees as it thinks necessary. Section 43 (6) is a provision of some importance and I set it out in full:

"Subject to this Division, the terms and conditions of employment of officers and temporary employees appointed in pursuance of this section are such as are determined by the Commission with the approval of the Public Service Board."

However, this sub-section must be read in conjunction with s. 42 which provides:

"Nothing in this Division shall affect the operation of any award made by the Commonwealth Court of Conciliation and Arbitration, or of any determination made by the Public Service Arbitrator, prior to the commencement of this section and applicable to the Commission and of any of its officers or temporary employees." (at p415)

9. Division 2 then contains detailed provisions relating to the classification, abolition and reclassification of positions in the service of the Commission (ss. 45 and 46) and the transfer, promotion, retirement and dismissal or reduction in status of officers (ss. 47, 48, 48A, 51, 52, 54, 55 and 56). Provision is made for a Promotions Appeal Board (ss. 49 and 50) and for a Disciplinary Appeal Board (ss. 57 and 58). Section 57 (1) gives an officer who is dismissed, retired, transferred, reduced in position or salary, or fined an amount exceeding $4 a right of appeal to the Disciplinary Appeal Board. The Disciplinary Appeal Board on hearing an appeal "may confirm, vary or set aside the decision of the Commission" (s. 57 (3) ). The decision of the Board shall be "final and the Commission shall take such action as is necessary to give effect to the decision" (s. 57 (4) ). (at p415)

10. In their totality these provisions constitute a comprehensive and exclusive code regulating the appointment, termination of appointment, promotion, transfer, retirement and dismissal of officers in the service of the Commission. It is for the Commission to make appointments, to determine the terms and conditions of appointment (with the approval of the Public Service Board), transfer and promote officers, and retire and dismiss officers, subject to awards made by the Conciliation and Arbitration Commission and determinations made by the Public Service Arbitrator and subject also to such decisions as may be made by the Promotions Appeal Board and the Disciplinary Appeal Board on appeals instituted under the Act. (at p415)

11. More than that, there is in my opinion a conflict between s.15 (1) (e) of the South Australian Act, if it should be held to apply to officers of the Commission, and the provisions of the Broadcasting and Television Act, in particular s. 57 by virtue of which the decision of the Disciplinary Appeal Board is final and the Commission is directed to take such action as is necessary to give effect to the Board's decision. In hearing an appeal against retirement and dismissal the Board is necessarily called upon to review the Commission's decision in respect of the officer and to decide whether it should be confirmed, varied or set aside. The co-existence in the Industrial Court of a jurisdiction to reinstate an officer who has been retired or dismissed by the Commission would be quite inconsistent with the function of the Disciplinary Appeal Board in reviewing a retirement or dismissal of an officer by the Commission and the duty of the Commission to take action to give effect to the decision of the Board. (at p415)

12. The fact that the Industrial Court does not set aside a dismissal but orders the reinstatement of an employee whereas the Board sets aside the dismissal, does not justify a conclusion that the two functions are complementary and not contradictory. In each case the Board and the Court are required to examine the dismissal - in one case to decide whether it should be confirmed, set aside or varied, in the other to decide whether it is harsh, unjust or unreasonable. And the result in each case, if it is favourable to the employee, is that the employment is to continue. Consequently, if the Commission were subject to a co-existing jurisdiction under s. 15 (1) (e) it would be exposed to the possibility of complying with conflicting determinations. (at p416)

13. As Gard was a temporary employee this conslusion does not dispose of the present case. Of the various provisions contained in Div. 2 of Pt III, only three are expressed to relate to temporary employees - ss. 42, 43 (2) and 43 (6) . The provisions relating to retirement and dismissal and to the Disciplinary Appeal Board (ss. 51, 52, 55, 56, 57 and 58), amongst others, have no application to temporary employees. If s. 15 (1) (e) of the South Australian Act were to apply to the Commission in respect of temporary employees no direct conflict would arise with the provisions of the Broadcasting and Television Act, there being no counterpart to s. 57 of that Act that applies to temporary employees. However, although there is no direct conflict, inconsistency may still emerge if it appears that the provisions of Div. 2 of Pt III sufficiently manifest an intention to cover the field of appointment and dismissal of temporary employees to the exclusion of any State law on the topic. (at p416)

14. True it is that the provisions of the Broadcasting and Television Act relating to temporary employees are very much less detailed and less comprehensive than those which apply to officers in the service of the Commission. None the less, the three provisions dealing with temporary employees which are to be found in Div. 2 are of particular significance. The terms of appointment are expressed by s. 43 (6) to be "such as are determined by the Commission with the approval of the Public Service Board", a provision which would not stand easily alongside a jurisdiction or authority in any other body to reinstate a temporary employee. And s. 42 preserves the operation of awards made by the Conciliation and Arbitration Court and of determinations made by the Public Service Arbitrator, but nothing else. These provisions indicate to my mind that the Commission's power to appoint and to terminate the services of temporary employees was intended to be exclusive and unqualified except to the extent that the terms of appointment must have the approval of the Public Service Board and that the employment of temporary employees is subject to the operation of the awards and determinations referred to in s. 42. (at p417)

15. The other factor to be taken into account is that the Division, as I have already held, leaves no room for the operation of s. 15 (1) (e) of the South Australian Act, or indeed of any State law, in relation to the dismissal of officers in the service of the Commission. To me it is inconceivable that the Broadcasting and Television Act, whilst intending to exclude the operation of a State law providing for the reinstatement of dismissed officers, should contemplate the operation of such a law in relation to temporary employees whose services have been terminated. The absence in relation to temporary employees of the detailed provisions which delimit the rights of officers is to be explained by the fact that it is usual to safeguard the rights and privileges of officers in a permanent service analogous to a public service by detailed provisions which qualify the rights of the employer to deal with the employee. It is otherwise with employees who are temporary and who do not form part of the permanent service. The absence of detailed provisions applying to them is not an indication that it is contemplated that other laws will apply to them, but rather that the employer has an unqualified authority to make decisions affecting their employment and the termination of their services. (at p417)

16. For these reasons I am of opinion that Div. 2 is a comprehensive and exclusive code, that it covers the entire field of appointment and termination of the services of temporary employees of the Commission, that s. 15 (1) (e) of the South Australian Act, if it be construed so as to empower the Industrial Court to make an order for reinstatement against the Commission, is an inconsistent law and is inoperative. (at p417)

17. I would grant special leave to appeal, allow the appeal and make the order nisi for prohibition absolute. (at p417)

MURPHY J. Mr. Alfred Gard, who claimed to be a dismissed temporary employee of the appellant (the Australian Broadcasting Commission), applied to the Industrial Court of South Australia under s. 15 (1) (e) of the Industrial Conciliation and Arbitration Act, 1972 (S.A.) for a determination that his dismissal was harsh, unjust or unreasonable and for an order for reinstatement and wages since the dismissal. The Industrial Court held (against the Commission's submissions) that it had jurisdiction to hear and decide the application. The Commission applied to the Supreme Court of South Australia for prohibition and certiorari to prevent the Industrial Court from proceeding further. The Supreme Court (by majority) refused relief (1976) 13 SASR 460; 25 FLR 271 and the Commission is appealing by special leave against this judgment. (at p418)

2. The Commission claims that the State Act does not confer jurisdiction on the Industrial Court to hear applications because the Commission is an agency or instrumentality of the Commonwealth and the jurisdiction is excluded (ss. 15 (2) and 114 (2) of the South Australian Act). Alternatively, it claims that, in so far as the State Act purports to confer the jurisdiction in regard to temporary employees of the Commission, it is inconsistent with the Broadcasting and Television Act 1942 (Cth) and therefore invalid. (at p418)

3. The resolution of the inconsistency question does not require a detailed analysis of the provisions of the Federal and State Acts because it does not depend on collision (direct conflict) between specific provisions of the two Acts. (at p418)

4. Section 109 of the Constitution states:

"When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid."

The expression "law of State" includes common (decisional) law, and "law of the Commonwealth" includes the federal common law. Even if s. 109 did not exist, the scheme of the Constitution is that a valid federal law would prevail over inconsistent State law. (at p418)

5. Although s. 109 operates directly, the determination of inconsistency requires conclusions on the intentions of the two laws. This can raise the difficult question of whether, through the operation of s. 109, the Parliament has precluded State laws or (by the choice of selective regulatory measures) has left the exercise of State power undistrubed except where the State and federal Acts collide (see Rice v. Santa Fe Elevator Corporation (1947) 331 US 218 (91 Law Ed 1447) and the cases cited there). (at p418)

6. Where the federal law is on a topic of dominant federal interest, an intention to legislate exclusively (if not expressed) will generally be implied. The industrial relations of Commonwealth agencies and instrumentalities (particulary bodies operating nationwide) are of dominant federal interest. The Parliament has not dealt with these relations completely or exhaustively, but it would be contrary to the general object of the laws establishing the bodies if the industrial relations could be regulated (perhaps differently in various States) by State laws. (at p418)

7. The Australian Broadcasting Commission was established by the Broadcasting and Television Act 1942. No provision was made then or in later amendments for reinstatement of temporary employees of the Commission. Employment (including the reinstatement of employees) by a federal corporation such as the Commission is a subject of dominant federal interest. As the Act does not disclose an intention to allow the State Act to operate, the simple answer is that it pre-empts the State Act which is invalid by virtue of s. 109 of the Constitution in so far as it purports to apply to the Commission. It is desirable, however, to examine the issue a little more precisley, especially as the majority in the Court below were of the opinion that the State Act applied. Fullagar J. said in Williams v. Hursey (1959) 103 CLR 30, at pp 68-69 :

"This being the position under the Commonwealth Act, and these being the powers which the incorporated organization has by virtue of its own registration and the registration of its rules under that Act, it must be beyond the power of any State to alter that position or to qualify those powers. No State could a priori forbid or ex post facto annul a power which is derived in this way from a law of the Commonwealth. Any attempt to do any such thing would involve a plain inconsistency within the meaning of s. 109 of the Constitution. No State Act could restrict the powers of the Commonwealth Bank or the Australian Broadcasting Commission. It is not merely that the State would be forbidding something which the Commonwealth permitted, as in Colvin v. Bradley Bros. Pty. Ltd. (1943) 68 CLR 151 and O'Sullivan .v Noarlunga Meat Ltd. (1954) 92 CLR 565. The State would be invading a territory which the Commonwealth has marked out as its own and for which it has made exhaustive and exclusive provision. It has laid down what is to be the law relating to the powers and functions of its own specially created corporations. Organizations registered under the Commonwealth Act are simply no concern of the States. Any other view would involve absurdity. The Commonwealth corporation could be put in the position of having mutually inconsistent objects and powers in each of the six States." (at p419)

8. The notion of exhaustive or complete provision by an Act is somewhat illusory. In the court below, Bray C.J. (with whom Sangster J. agreed) observed that Parliament had not dealt with some aspects of the Commission's affairs (in particular terms and conditions of employment of temporary employees) and was adamant that some law must be applicable on these subjects. As he pointed out, although s. 43 (6) of the Act provides that the terms of appointment are to be "such as are determined by the Commission with the approval of the Public Service Board", on the evidence no such determination had been made, and the law was not provided by any award or determination referred to in s. 42. (at p420)

9. I agree with Bray C.J. that the failure of the Act, in these circumstances, to provide necessary rules shows that the Act does not make exhaustive or complete provision for the Commission and requires the application of some other law so that the general legislative intent will not be defeated. The Supreme Court of South Australia held that this other law was State law (statutory and common). This conflicts with the principle that, if the subject is of dominant federal interest and no intention to allow State law to operate is disclosed in the federal law, the State law is precluded. The applicable law, in my opinion, is federal common law. (at p420)

10. Federal common law completes the statutory patterns enacted by the Parliament and is as necessary for the effective operation of those laws as the common law of the Constitution is for the effective operation of the Constitution. Some doubt arose in the United States of America about the federal common law because of Brandeis J.'s statement in delivering the opinion of the Supreme Court in Erie Railroad Co. v. Tompkins (1938) 304 US 64, at p 78 (82 Law Ed 1188, at p 1194) : "There is no federal general common law". On the same day, however, in delivering another opinion for the Court, he applied federal common law (Hinderlider v. La Plata River and Cherry Creek Ditch Co. (1938) 304 US 92, at p 110 (82 Law Ed 1202, at p 1212) ). The existence of federal common law has since been accepted. "Federal judicial power to deal with common law problems ... remained unimpaired for dealing independently, wherever necessary or appropriate, with essentially federal matters, even though Congress has not acted affirmatively about the ... question." (United States v. Standard Oil Co. (1947) 332 US 301, at p 307 (91 Law Ed 2067, at p 2072) ; the opinion of the Court explained the statement in Erie). "Were we bereft of the common law, our federal system would be impotent." (D'Oench, Duhme &Co. v. Federal Deposit Insurance Corporation (1942) 315 US 447, at p 470 (86 Law Ed 956, at p 969) ). The United States cases deal with the problem raised in the majority judgment of the court below. (at p420)

11. The Broadcasting and Television Act, taken with its attendant federal common law, can be regarded as exhaustive and complete. Together they form a law of the Commonwealth which is exclusive, at least on the subject of employment by the Commission. It may be doubted that a law on reinstatement is necessary for the effective operation of the Commission, but if it is necessary or appropriate (as long as the Act does not make provision), its content is to be supplied by the federal common law. The answer might be simply that there is no common law rule of reinstatement of such temporary employees, but there is no need to decide what it is because it is clear enough what it is not. (at p421)

12. Federal common law may incorporate State law where appropriate (common or statutory) (see United States v. Standard Oil (1947) 332 US 301 (91 Law Ed 2067) ). "In our choice of the applicable federal rule we have occasionally selected State law" (Clearfield Trust Co. v. United States (1943) 318 US 363, at p 367 (87 Law Ed 838, at p 842) ). However, the adoption of s. 15 (1) (e) and ancillary provisions of this State Act as part of the federal common law applicable to employment with the Commission is not appropriate because the subject calls for national uniformity which would be defeated by the operation of the State law. It follows that the State Act must be inconsistent with the federal common law. (at p421)

13. Another approach to the question is this. Absence of a rule on reinstatement of temporary employees (unlike absence of rules on other terms and conditions of employment) does not defeat the general legislative intent of the federal Act. Therefore, the Act's silence on the subject of such reinstatement is meaningful, that is, it implies that there is to be no reinstatement (at least unless arising under s. 43 (6) of the Act). On this approach, the State Act would be inconsistent with the federal Act itself. (at p421)

14. Thus, reinstatement in accordance with the State Act is inconsistent with the Act's implication (if it be drawn) or if not, with the federal common law. It is not necessary to decide which. It is enough that the State Act is inconsistent with a law of the Commonwealth which is the Broadcasting and Television Act and its attendant federal common law. Therefore, in so far as the State Act purports to confer the challenged jurisdiction in regard to employees of the Commission, it is invalid. (at p421)

15. The obvious dominant federal interest in the engagement of employees and other industrial affairs of the Commission is reinforced by the provisions of the Constitution. Section 69 provided for transfer to the Commonwealth of certain State public service departments including "Posts Telegraphs and Telephones". Powers of State Governors in respect of those departments were vested in the Governor-General (s. 70). Over the years, the federal department was generally known as the Department of the Postmaster General. It is now the Department of Postal and Telecommunications. The Commission is an outgrowth of this Department and, under the present administrative arrangements of the Commonwealth, is administered by the Minister for Postal and Telecommunications. It may be that the power to make laws in this area is exclusive to the Parliament of the Commonwealth (s. 52 of the Constitution). The fact that Parliament has chosen to create a corporation rather than use the ordinary machinery of the public service does not detract from the dominant federal interest and may not remove the laws from the exclusive provisions of s. 52. (at p422)

16. The appeal should be allowed and the order for prohibition should be made absolute. (at p422)

Orders

Appeal allowed with costs.

Order of the Full Court of the Supreme Court of South Australia set aside and in lieu thereof order that the order nisi for a writ of prohibition be made absolute.

Respondents to pay prosecutor's costs of the proceedings in the Supreme Court.