Australian Builders' Labourers' Federated Union of Workers - Western Australian Branch v J-Corp Pty Ltd
[1993] FCA 266
•16 APRIL 1993
Re: KYM WILLIAM FISHLOCK and TERRY STEPHEN GILL
And: HANSON SYKES PUMPS AUSTRALIA PTY LTD and ARROWCREST GROUP PTY LTD
(Trading as ROH Alloy Wheels)
Nos. SI1-SI2 of 1992
FED No. 266
Number of pages - 12
Constitutional Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIAN DISTRICT REGISTRY
INDUSTRIAL DIVISION
O'Loughlin J(1)
CATCHWORDS
Constitutional Law - Whether inconsistency between Commonwealth and State laws - length of notice of termination of employment - provisions of Metal Industry Award relating thereto - provisions in Workers Rehabilitation and Compensation Act 1986 (SA) relating to workers suffering a compensable disability and requirements to provide suitable employment and not to terminate employment without first giving both the Corporation and the worker at least twenty eight-days notice.
The Constitution s109
Industrial Relations Act 1988 (Cth)
Metal Industry Award 1984 cl 6
Workers Rehabilitation and Compensation Act, 1986 (SA)
Ansett Transport Industries (Operations) Pty. Ltd. v Wardley (1979-80) 80) 142 CLR 237
R. v The Industrial Court of South Australia; Ex parte General Motors-Holdens Pty. Ltd. (1975) 10 SASR 582
Clyde Engineering Co. Ltd. v Cowburn (1926) 37 CLR 466
Ex parte McLean (1930) 43 CLR 472.
R. v Clarkson; Ex parte General Motors-Holden's Pty. Ltd. (1975-1976) 134 CLR 56
The State of Victoria v The Commonwealth of Australia (1937) 58 CLR 618
R. v Sex Discrimination Board; Ex parte Cope (1980) 26 SASR 197
Metal Trades Industry Association of Australia v The Amalgamated Metal Workers' and Shipwrights' Union (1983) 152 CLR 632
HEARING
ADELAIDE, 7 August 1992
#DATE 16:4:1993
Counsel for Kym William Fishlock: Mr. J.R. Rau
Solicitors for Kym William Fishlock: Messrs Johnston Withers
Counsel for Terry Stephen Gill: Mr. T.L. Stanley
Solicitors for Terry Stephen Gill: Messrs Duncan and Hannon
Counsel for Hanson Sykes Pumps
Australia Pty. Ltd. and Arrowcrest
Group Pty. Ltd. (Trading as ROH
Alloy Wheels): Mr. N.L. Strawbridge
Solicitors for Hanson Sykes Pumps
Australia Pty. Ltd. and Arrowcrest
Group Pty. Ltd. (Trading as ROH
Alloy Wheels): Messrs Baker O'Loughlin
ORDER
No. SI1 of 1992
THE COURT ORDERS THAT:
The separate question be answered as follows:
As to the provisions of subs58b(1) of the Workers Rehabilitation and Compensation Act: No
and
As to the provisions of subs58b(3) of the Workers Rehabilitation and Compensation Act: Yes
No. SI2 of 1992
THE COURT ORDERS THAT:
The separate question be answered as follows: No
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
O'LOUGHLIN J In action No. SI 1 of 1992 the parties have joined in seeking from the Court the determination of the following issue as a separate question:
"Whether section 58b(1) and section 58b(3) of the Workers Rehabilitation and Compensation Act 1986 (as amended) (SA) are inapplicable to the applicant alleging a breach of clause 6 of the Metal Industry Award, an Award of the Australian Industrial Relations Commission, by reason of an inconsistency with a law of the Commonwealth of Australia, namely the Industrial Relations Act 1988."
In action No. SI 2 of 1992 the parties have asked a question in almost identical terms save that the statement of issue is related only to the provisions of subs58b(1) of the Workers Rehabilitation and Compensation Act 1986 (SA).
In each action, the applicant has instituted proceedings alleging that the respondent, his former employer, breached the terms of their contract of employment by terminating the applicant's employment in circumstances that were harsh, unjust and unreasonable. Each applicant has pleaded in his statement of claim that at the time when his employment was terminated he was incapacitated and unable to work as a result of a work related injury. If these allegations are substantiated, consideration would, prima facie, have to be given to the operation of s58b of the Workers Rehabilitation and Compensation Act, the material provisions of which are as follows:
"(1) If a worker who has been incapacitated for work in consequence of a compensable disability is able to return to work (whether on a full-time or part-time basis and whether or not to his or her previous employment), the employer from whose employment the disability arose must provide suitable employment for the worker (the employment being employment for which the worker is fit and, subject to that qualification, so far as reasonably practicable the same as, or equivalent to, the employment in which the worker was employed immediately before the incapacity).
(2) ...
(3) If a worker has suffered a compensable disability, the employer from whose employment the disability arose must not terminate the worker's employment (except on the ground of serious and wilful misconduct) without first giving both the Corporation and the worker at least 28 days notice of the proposed termination of employment.
Penalty: $5000
(3a) ...
(4) In any legal proceedings in which an employer is alleged to have terminated a worker's employment contrary to subsection (3), the onus of proving that the employment was terminated on the ground of serious and wilful misconduct lies on the employer."
Subsections (2) and (3a) respectively provide that subsections (1) and (3) do not apply in certain circumstances and I assume for the purpose of these reasons that none of those circumstances is present in either of these actions.
The applicants were prior to the termination of their employment working as a diesel fitter and a die caster respectively. It is accepted that each position is within the ambit of the Metal Industry Award 1984 ("the Award").
Each respondent was at all material times a member of the Engineering Employers Association (S.A.), an employer organisation registered under the Industrial Relations Act 1988 (Cth). The Engineering Employers Association (S.A.) is a named respondent to the Award (which is an Award of the Australian Industrial Relations Commission) and by virtue of section 149 of the Industrial Relations Act each respondent was at all material times, bound by the Award.
Clause 6 of the Award is entitled "Contract of Employment". Sub-clauses (a), (b) and (c) deal respectively with weekly employment, part-time employment and casual employment. Sub-clause (d), with which these proceedings are concerned, relates to termination of employment whilst the balance of the clause covers various related topics such as: "standing down", "absence from duty", "abandonment of employment" and so on.
Paragraph (i) of sub-clause 6(d) of the Award sets out the period of notice that must be given by an employer to terminate the employment of an employee. It ranges from one week for service of a year or less to four weeks for service of five years or more. That period may be increased in cases where an employee is over forty-five years of age with at least two years service but, on the other hand, the required period of notice does not apply in those cases where instant dismissal is justified. The language of paragraph (i) of sub-clause 6(d) of the Award commences with these words:
"(d)(i)(1) In order to terminate the employment of an employee the employer shall give to the employee the following notice:
Period of Continuous Service. Period of Notice. ..."
In other words the provision is merely directed to the question of length of notice and did not address the right or power of the employer to dismiss. That, however, appeared in the provisions of paragraph (v) of the same sub-clause:
"Notwithstanding the provisions of subparagraph 6(d)(i)(1) hereof the employer shall have the right to dismiss any employee without notice for conduct that justifies instant dismissal, including malingering, inefficiency or neglect of duty and in such cases the wages shall be paid up to the time of dismissal only."
The second, third and fourth paragraph of sub-clause 6(d) deal with notice of termination by an employee, the right of an employee to have time off from work to look for alternative employment and the obligation on an employer, if so requested, to supply a written statement of the employee's work history. The remaining paragraphs, (vi) and (vii), deal with unfair dismissal and the procedures for settling disputes that arise in circumstances of unfair dismissal. Paragraph (vi) of sub-clause 6(d) of the Award is in the following terms:
"Termination of employment by an employer shall not be harsh, unjust or unreasonable.
For the purposes of this clause, termination of employment shall include terminations with or without notice."
Paragraph (vi) of sub-clause 6(d) then proceeds to give an expansive definition of what can constitute "harsh, unjust or unreasonable termination". It continues:
"Without limiting the above, except where a distinction, exclusion or preference is based on the inherent requirements of a particular position, termination on the ground of race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction and social origin shall constitute a harsh, unjust or unreasonable termination of employment."
In action No. SI 1 of 1992 the applicant Mr. Fishlock gave particulars of how the termination of his employment was harsh, unjust and unreasonable by alleging, in effect, that his employer had falsely claimed that he was redundant. Mr. Fishlock asserted that the respondent employer had:
"... acted in breach of Section 58b(1) and Section 58b(3) (of the Workers Rehabilitation and Compensation Act) in terminating the applicant's employment without giving both the Corporation and the applicant at least 28 days notice of the proposed termination of employment."
According to the allegations in his statement of claim, which I accept as accurate for the purposes of these proceedings, Mr. Fishlock commenced work on 27 November 1990; his employment was terminated some seven months later on 22 May 1991 by telephone advice with immediate effect. By virtue of the provisions of paragraph 6(d)(i) of the Award, Mr. Fishlock would have been entitled to one week's notice of termination unless there was some question of impropriety on his part (and that has not been pleaded). Although there is a reference to an alleged breach of subs58b(1) in the statement of claim (that is, the provision dealing with re-employment) there are no further allegations or particulars with respect to that topic and it would seem that, in fact, Mr. Fishlock's complaint, at least as presently drafted, is limited to the lack of twenty-eight days notice as required by subs58b(3).
In action No. SI 2 of 1992 the applicant, Mr. Gill, limited his particulars of claim to the issue of re-employment. He claimed that his dismissal was harsh, unjust and unreasonable because (inter alia):
"Pursuant to Section 58b(1) of the Workers Rehabilitation and Compensation Act 1986, the Respondent was obliged to provide the Applicant with employment for which he was fit, either on a part-time or a full-time basis. By reason of the dismissal of the Applicant the Respondent was in breach of this statutory duty."
Mr. Gill had been employed as a die caster from November 1984. He claimed that he suffered a back injury on 17 December 1990 and that on 26 February 1991, whilst still absent from work because of his injury, he was served with notice terminating his employment as from 26 March 1991. As he had in excess of five years service he was entitled under the Award to four weeks notice. If he had been forty-five years of age or older he might have been entitled to longer notice but, as his age was not stated in the statement of claim, I will proceed upon the premise that the length of his notice exceeded the minimum provisions of the Award. It was not pleaded whether the requisite notice was given to the Corporation as required by subs58b(3). However, as I was informed by counsel from the bar table that this notice was in fact given, I will proceed on that understanding. The pleadings can be attended to at a later stage if that should be considered necessary.
The question of inconsistency arises, in the first instance, by virtue of s109 of the Constitution but also because of the provisions of s152 of the Industrial Relations Act. Section 109 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 provisions of s152 of the Industrial Relations Act, so far as material for present purposes are as follows:
"Where a State law... is inconsistent with, or deals with a matter dealt with in, an award, the latter prevails and the former, to the extent of the inconsistency or in relation to the matter dealt with, is invalid."
In his dissenting judgment in Ansett Transport Industries (Operations) Pty. Ltd. v Wardley (1979-80) 142 CLR 237 at 243 Barwick CJ said that the principles to be applied in deciding a question of inconsistency were well settled. He said:
"The paramountcy given to federal law over inconsistent State laws is universal and without exception. Federal law, whether made in pursuance of an exclusive or concurrent constitutional power, prevails over any State law which is inconsistent with it no matter what the subject matter of the State law. The federal and State law need not be about the same subject matter. The only question is whether the one, ie the State law, is inconsistent with the other, the federal law.
...
...(T)he next step is to determine the scope of the federal law. Sometimes the delineation of the 'field' in which it operates may serve to determine its scope. Sometimes the purpose of the federal law, gathered from its terms, will indicate that the parliamentary intention was that the federal law would be the law in relation to the matter with which it deals.
But, however approached, in general, the meaning and scope of the federal law must first be determined. By meaning and scope, I mean, of course, the meaning and scope of that part of the federal law with which it is claimed that a State law is inconsistent, though of course the meaning and scope of a part must be determined after an overview of the federal law as a whole."
The case for the respondent was put in the alternative. First, it was claimed that there was a direct inconsistency between the Award and the quoted provisions of the State legislation because those provisions placed additional limitations on an employer's ability to terminate the employment of an employee; for example, a disabled first year employee to whom s58b(1) applied could not be the subject of a mere one week's notice as provided for by the Award as it would be necessary in appropriate circumstances for the employer to provide him with suitable employment. Furthermore, s58b(3) requires the employer to give both the disabled employee and the Workers Rehabilitation and Compensation Corporation "at least 28 days notice of the proposed termination of employment". That period of 28 days exceeds the period of notice required under the Award for all employees other than those with service of five years or more. "Direct inconsistency", as Mason J explained in Ansett v Wardley (supra) at 259 was the disconformity which was created by the presence of an absolute right to dismiss for any reason whatsoever and the presence in State legislation of a prohibition against dismissal for the prescribed reasons. "Direct inconsistency" is a description which has always been used for cases in which it is impossible to obey both laws. R. v The Industrial Court of South Australia; Ex parte General Motors-Holdens Pty. Ltd. (1975) 10 SASR 582 is an example of State legislation that was held to be in direct conflict with a Commonwealth Award (at 601 per Walters and Wells JJ).
Next, it was argued that if there were no direct inconsistency then it was apparent on the face of the Award that it evinced an intention to cover the field as it is a code with respect to contracts of employment and, as a code, it encompasses, inter alia, the subject of termination of employment by employers. As part of this alternative argument, it was submitted that the State legislation fetters or qualifies rights that have been given to an employer by the Award - such as the period of termination that is catalogued in paragraph (i) of sub-clause 6(d) - and thus, because the State Act deals with a matter that is dealt with in the Award, there is an inconsistency between the Award and s58b (1) and (3) of the State Act.
The potential to comply with the Award and the State Act by giving a notice of sufficient length to meet the longer of the two periods must be put to one side. In Clyde Engineering Co. Ltd. v Cowburn (1926) 37 CLR 466 the plaintiff sued his employer for a shortfall in the amount of his week's wage which amount had been calculated by having regard to State legislation. He gave credit for the lesser amount that he had received under the provisions of an Award of the Commonwealth Court of Conciliation and Arbitration, and the High Court had to determine whether, when such an Award has been duly made, the Parliament of a State can alter its terms or confer or impose on the parties to it rights or obligations inconsistent with such terms. Section 12 of the Forty-four Hours Week Act 1925 (NSW) provided inter alia that where in any Commonwealth Award provision was made for weekly hours of work in excess of forty-four, then in such a case the standard or ordinary hours of work or duty of an employee shall not exceed those prescribed by s6 of that Act, namely forty-four hours per week. In their joint judgment, Knox CJ and Gavan Duffy J came to the conclusion that s12 and s13 (which allowed for compensating or "top-up" wages) were invalid because of inconsistency. They said:
"Parliament has exercised all the powers necessary for the making of a valid and permanent award, and secs.12 and 13 of the Forty-four Hours Week Act 1925 seek to alter, and to that extent destroy, awards lawfully made under these powers. It is therefore, so far as secs.12 and 13 are concerned, inconsistent with the law of the Commonwealth within the meaning of sec.109 of the Constitution, and to the extent of that inconsistency, invalid." (477)
They thereafter addressed the question of the ability to comply with both the State legislation and the Commonwealth Award but they concluded:
"Two enactments may be inconsistent although obedience to each of them may be possible without disobeying the other." (478)
In seeking to apply the reasoning of the decision in Clyde Engineering Co. Ltd. v Cowburn to the present cases, Mr. Strawbridge, counsel for the respondents, argued that it was no answer to submit that an employer could comply with the State Act and the Award by ensuring that any notice of termination was of sufficient duration that it would comply with the longer of the two periods specified in the Act and in the Award. He submitted that the twenty-eight day period that is referred to in subs58b(3) is in direct conflict with the Award and that the requirement in subs58b(1) to offer re-employment constitutes a fetter on an employer's right under the Award to dismiss an employee. That right was, so it was claimed, unfettered save only for fixing the minimum period of notice that must be given to a workman.
In the alternative, Mr. Strawbridge relied on the "covering the field" test which, so he claimed, was applicable to the Award. This test was first formulated by Isaacs J in Clyde Engineering Co Ltd. v Cowburn (supra) at 489 where he referred to an intention "to cover the whole ground" (see Metal Trades Industry Association of Australia v The Amalgamated Metal Workers' and Shipwrights' Union (1983) 152 CLR 632 at 648 per Mason, Brennan and Deane JJ). In support of his submission, Mr. Strawbridge relied on the decision of the High Court in Ex parte McLean (1930) 43 CLR 472. That case was concerned with the provisions of the Masters and Servants Act 1902 (NSW) and an award of the Commonwealth Court of Conciliation and Arbitration. The defendant, a shearer, was charged on information laid by his employer, a grazier, with a breach of s4 of the New South Wales Act. The defendant claimed that the court had no jurisdiction to deal with the matter as both the informant and the defendant were bound by the same Commonwealth Award and their agreement of service had been made in pursuance of the Award. It was the case for the defendant that breaches of the Award attracted certain penalties which were inconsistent with the remedies provided by the State legislation and that, in the circumstances, the State law was abrogated by the Commonwealth legislation. In concluding that there was inconsistency between the Commonwealth Award and the State Act Dixon J (as he then was) explained that when the Commonwealth and a State legislate upon the same subject and prescribe what the rule of conduct shall be they make laws which are inconsistent, notwithstanding that the rule of conduct which each prescribes is identical, and therefore s109 applies. His Honour explained:
"But the reason is that, by prescribing the rule to be observed, the Federal statute shows an intention to cover the subject matter and provide what the law upon it shall be. If it appeared that the Federal law was intended to be supplementary to or cumulative upon State law, then no inconsistency would be exhibited in imposing the same duties or in inflicting different penalties. The inconsistency does not lie in the mere coexistence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed. When a Federal statute discloses such an intention, it is inconsistent with it for the law of a State to govern the same conduct or matter." (483)
In R. v The Industrial Court of South Australia; Ex parte General Motors-Holdens Pty. Ltd. (supra) Walters and Wells JJ rejected a submission that the "covering the field" test was applicable to the Commonwealth Award under consideration. Their Honours however referred to the passage from the judgment of Dixon J in Ex parte McLean that is quoted, in part, above, saying of it:
"What is important to bear in mind is that the cover-the-field test, which the abovementioned passage embodies, depends for its application upon whether a court is of the opinion that the Commonwealth law evinces an intention to deal completely and exhaustively - and hence exclusively - with the relevant subject-matter." (595)
In that case, General Motors Holden dismissed one Fedor Gnatenko from its employ without notice for misconduct. In doing so, it relied upon the provisions of The General Motors-Holden's Pty. Ltd. (Pt 1) General Award 1974, an award made under the provisions of the Conciliation and Arbitration Act 1904 (Cth). Clause 6 of that award was entitled "Contract of Employment" and sub-clause (c) dealt with "Termination of Employment". Under that sub-clause either party was entitled to give one week's notice of termination but the last sentence of the paragraph also contained a provision that the right of the employer to dismiss an employee without notice for malingering, inefficiency, neglect of duty or misconduct was not affected. Section 15(1)(e) of The Industrial and Arbitration Act 1972 (SA) conferred upon the State Industrial Court jurisdiction to hear and determine any question as to whether the dismissal from employment of an employee was harsh, unjust or unreasonable, and empowered that Court, if it thought fit, to direct the employer to re-employ the employee in his former position. Gnatenko sought an order under the State legislation that he be re-employed in his former position but the Full Court of the Supreme Court of South Australia made absolute an order for prohibition in respect of the proceeding on the ground that there was a direct conflict (and therefore an inconsistency within the meaning of s109 of the Constitution) between the last sentence of clause 6(c) of the 1974 award and the provisions of s15(1)(e) of the State legislation. On the one hand, the Commonwealth award allowed for dismissal without notice on the footing that the employee was entitled to payment of wages up to dismissal whilst the jurisdiction conferred upon the State Court by s15(1)(e) allowed it to determine whether the dismissal was harsh, unjust or unreasonable and empowered it to order re-employment with an award of wages to cover the period from dismissal to re-employment. Walters and Wells JJ explained how this inconsistency arose at 599-601 in these terms:
"In our judgment, clause 6, in general, and sub-clause (c), paragraph (i), in particular, confers on both employer and employee the power to terminate the employment upon the fulfilment of certain conditions precedent. Once the power is duly and lawfully exercised, and the appropriate time (if any) expires, the termination becomes immediately and completely effective no matter what were the surrounding circumstances in which the power was exercised. The termination contemplated by the Award is neither provisional nor subject to a condition subsequent in defeasance; it is final and absolute as between the parties. ...
If one looks no further than the award, however, G.M.-H. would be justified in claiming that once a given workman's employment has been duly terminated pursuant to the Award, it remains terminated; and it is irrelevant, for the purpose of administering and enforcing the Award, that that dismissal was harsh, unjust or unreasonable. ...
There are no provisions in the Award by virtue of which, in favourable circumstances, a workman becomes entitled to be re-employed under conditions that place him in a position, with respect to his rights and privileges, that is the equivalent of that occupied by him before his employment ended. If a workman, whose employment has been duly terminated under the Award, is subsequently re-employed, in the absence of some special arrangement (to which the Award gives him no right), he takes his place with all others who are employed for the first time.
It seems to us to follow that par. (e) (of s15(1) of the State Act) purports to confer upon the Court the power to direct re-employment on terms that must conflict directly with certain terms of the Award on which, if he were re-employed, his employment would, for varying periods, be governed."
In the Metal Trades case (supra) Mason, Brennan and Deane JJ explained in their joint judgment at 649-650 how general industry awards have steadily become more comprehensive in their reach by regulating in a detailed fashion the terms and conditions of employment. On the other hand, as their Honours pointed out, it is inevitable that there are some matters with which such an award fails to deal and they offered the field of workers' compensation as an example. In addressing the problem of an award, apparently complete on its face, and a subsequent State statute which confers new rights on employees in the sense that the new rights have not previously been accorded generally by industrial awards or contracts of employment, their Honours identified the correct approach in these terms:
"The correct approach in such a case is that the award fails to deal with the matter provided for by the statute, unless the award exhibits an intention that there is to be no benefit of that kind or, alternatively, that the benefits for which it provides are to be a complete and exclusive statement of the employee's entitlement in the relevant area. Such an intention cannot be ascribed lightly to an award. It will not often transpire that the class of benefits provided by the statute was demanded by the log of claims or otherwise made part of the industrial dispute settled by the award." (651)
This accords with the views expressed by Jacobs J in R. v Clarkson; Ex parte General Motors-Holden's Pty. Ltd. (1975-1976) 134 CLR 56 at 77:
"Every award is made against a background of the general law of each State governing the relationship of master and servant. The award may vary or modify or even wholly displace that law."
In fact, Mason, Brennan and Deane JJ referred to R. v Clarkson as authority for the proposition that:
"An award which provides for the terms and conditions of employment and termination on notice but not dismissal for misconduct fails to deal with dismissal for misconduct and leaves that particular matter or conduct to be regulated by State law. ' (650)
Nevertheless, the High Court was satisfied in the Metal Trades case that direct inconsistency was present. The Employment Protection Act 1982 (NSW) required employers to give to the State Industrial Registrar at least seven days' notice of their intention to terminate the employment of any employee, except in the case of termination for misconduct. It was an offence to terminate the employment without giving that notice. The Metal Trades Industry Award 1971 made under The Conciliation and Arbitration Act 1904 (Cth) contained provisions for the termination of employment on notice, the period of notice, dismissal for misconduct without notice and the rights of an employee to wages in consequence of termination or dismissal. Gibbs CJ, Wilson and Dawson JJ summarised the provisions of the Award and of the State legislation in these words:
"In our opinion, these provisions plainly interfere with the relationship of employer and employee as established by the awards with respect to the termination of the employment. Both in subject matter and effect, Pt II of the State Act is dealing precisely with the same topic as is covered by the awards, namely, the procedure which the employer must observe if he wishes to terminate the employment. On their proper construction, the awards do not leave any room for a State law to attach additional obligations on an employer in consequence of a termination of employment under the awards. In attempting to do so the State Act is inconsistent with the awards." (644)
Mason, Brennan and Dawson JJ were of the same opinion. They said:
"It makes it impossible for the employer to exercise his entitlement under the award to terminate without notice or give notice to terminate, as the case may be, the employment at any time. The practical impact of s.7 is to bring about a suspension of the exercise of the employer's right to terminate, or give notice to terminate, the employment at any time." (652-653)
I turn then to consider and compare the relevant provisions of the Award with the contents of subs(1) of s58b of the State legislation. The Award was made in 1984 and the amendments to clause 6 which are relevant to these proceedings were made a year later. The Workers Rehabilitation and Compensation Act was not enacted until 1986 and s58b was introduced by way of amendment in 1988. The Award, as I have already listed, addresses the subject of "Contract of Employment" and several aspects of that subject. What is relevant to the questions that must be resolved in these proceedings is that although the clause does not assert a general right of termination (leaving that to the general law) it nominates various periods for notice of termination which have a direct relationship to length of service. On the other hand, cl 6(d)(v) gives to the employer an express right to dismiss without notice in cases of conduct (such as malingering) that justify instant dismissal.
There is therefore the common law right of termination of employment either by the employer or by the employee modified by the right given to the employer by the Award to dismiss instantly in certain cases. The Award also catalogues the length of notice of termination by having regard to the employee's years of service. Superimposed on all this is the issue of unfair dismissal. Clause 6(d)(vi), positively rejecting any attempt to differentiate between dismissal with notice and instant dismissal, includes the provisions which have already been quoted:
"Termination of employment by an employer shall not be harsh, unjust or unreasonable.
For the purposes of this clause, termination of employment shall include terminations with or without notice."
Thus, even though an employee may be dismissed without notice for malingering, he is still protected from unfair dismissal and may therefore invoke the disputes settlement procedures in respect of claims of unfair dismissal as set out in paragraph (vii) of cl 6(d).
I fail to see how subs(1) of s58b could be regarded as being either directly or indirectly inconsistent with the provisions of an Award that deals with employment or termination of employment. On the one hand the Award does not address the subject of workers' compensation and on the other hand sub s58b(1) does not address the subject of termination of employment. The view that I take is that the subsection postulates ongoing employment. So much is clear from its opening phrase: "If a worker... is able to return to work...". The subsection is not addressing the question of cessation of employment. Its work is to ensure that benevolent consideration is given to the returning worker and for that reason there is an obligation on the employer to "provide suitable employment". But that obligation only exists so long as a worker, having recovered from a compensable disability, is able to return to work. I do not see that provision as a State law that would "alter, impair or detract from the operation of a law of the Commonwealth Parliament" The State of Victoria v The Commonwealth of Australia (1937) 58 CLR 618 at 630 per Dixon J. On the contrary, I see it as one that would fit harmoniously and appropriately with the provisions of the Award. It does not impinge on an employer's fundamental right to terminate, either with or without notice. However, an employer's failure to comply with the provisions of subs(1) might, in appropriate circumstances, properly be taken into account in determining whether the dismissal of an employee, to whom the provisions of the subsection would otherwise apply, was an unfair dismissal.
The issue can also be seen in converse. The Metal Industry Award and cl 6(d) cannot be seen as a complete and exhaustive code covering every aspect of employer/employee relations. It was clearly the intention of the arbitrator in settling the terms of the Award to leave for the States the question of regulating issues of workers' compensation. Those issues would include the provisions by an employer of suitable employment for a worker who had suffered an incapacity during the course of his employment. In my opinion, cl 6(d) does not enter that field and there is therefore no inconsistency.
I turn then to consider the provisions of subs(3) of s58b of The Workers Rehabilitation and Compensation Act. That subsection requires an employer, under pain of prosecution and a fine of up to $5,000, not to terminate the employment of a disabled worker without first giving both the Corporation and the worker at least twenty-eight days notice of the proposed termination of employment. It was readily acknowledged by counsel that if the workers' compensation element was removed from the subsection so that it merely stated that an employer must not terminate a worker's employment without first giving him at least twenty-eight days notice, there would be direct conflict between the provisions of the Award that allowed for shorter notice in some cases and the hypothetical State legislation. Counsel sought to avoid the consequences of that concession to the actual words of the subsection by emphasizing that the subsection was directed to the subject of workers' compensation and rehabilitation and that the Award did not touch upon that subject. This led to the proposition that a compensable disability took an injured workman out of the "termination" provisions of the Award and placed him under the twenty-eight day umbrella of subs58b(3) where, presumably, he would stay until he had fully recovered. At that point of time he would, presumably, return to and be governed, once again, by the provisions of the Award. I cannot accept this proposition. This is not a case such as R. v The Sex Discrimination Board; Ex parte Cope (1980) 26 SASR 197 where, by a majority, the Full Court of the Supreme Court of South Australia held that a State prohibition against dismissal on the ground of sex or marital status was not inconsistent with the powers of dismissal as contained in the Metal Industry Award 1971. King CJ, (with whom White J agreed) rested his decision on the earlier decision of the High Court in Ansett v Wardley (supra). The question in that case was whether there was an inconsistency between the provisions of State legislation dealing with equal opportunities and the dismissal provisions of the Airline Pilots Agreement 1978 (which had the same effect as an Award). King CJ said:
"The four Judges who constituted the majority expressed themselves in somewhat different ways. The effect of what they said, however, was that so far as the Agreement dealt with the question of dismissal it had to be read subject to the general law and should not be regarded as inconsistent with State laws prohibiting discrimination on the ground of sex." (199-200)
In R. v The Sex Discrimination Board and in Ansett v Wardley the State legislation did not contradict the relevant Commonwealth provisions. In the latter case Mason J went so far as to say that the Agreement gave the employer no substantive right of dismissal, a view that was substantially shared by Murphy and Wilson JJ in their separate judgments. Mason J said:
"Ansett argued that Reg. v Industrial Court of South Australia; Ex parte General Motors-Holden's Pty. Ltd. supported the view that cl.6B confers a substantive right of dismissal on Ansett. I do not agree. In Reg. v Industrial Court of South Australia; Ex parte General Motors-Holden's Pty. Ltd. the award made under the Act provided that the employment should be terminated by a week's notice on either side. However, the award also provided that 'This shall not affect the right of the Company to dismiss an employee without notice for malingering, inefficiency, neglect of duty or misconduct...'. This award was alleged to be inconsistent with s.15(1)(e) of the Industrial Conciliation and Arbitration Act, 1972 (S.A.). In the light of the specific words of the award, viz. 'the right of the Company to dismiss an employee without notice', it is clear that the power to direct re-employment under the State Act and the federal award were inconsistent. However, no such 'right' is given here. Rather, cl.6B of the Agreement is only concerned with the question of notice." (263)
That of course throws up in sharp relief, the distinguishing feature in this case. Here, like R. v Industrial Court of South Australia; Ex parte General Motors-Holden's Pty. Ltd., but unlike Ansett v Wardley there is the right of the employer to dismiss an employee without notice (cl 6(d)(v)). The State legislation sought to accommodate this substantive right by excluding from the twenty-eight day notice termination on the ground of serious and wilful misconduct; but in my opinion the draftsman of the legislation did not go far enough. Let it be assumed that except for cases justifying instant dismissal the Award gives no substantive right of dismissal but leaves that to the general law. Even so the Award lays down, without qualification, and in a series of steps, the length of notice required to terminate a worker's employment. This has nothing to do with the reasons for termination, a subject which is neither addressed in the Award nor in the State legislation. The issue is limited exclusively to the length of notice. That is the context in which the State legislation has entered the field and attempted, in respect of a limited class of workers, who have suffered a compensable disability, to alter, impair or detract from the Award. In my opinion that constitutes direct inconsistency and to that extent the provisions of subs(3) of s58b of the State Act are invalid.
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