Australian Education Union v Department of Training & Employment
[1999] FCA 1858
•24 DECEMBER 1999
FEDERAL COURT OF AUSTRALIA
Australian Education Union v Department of Training & Employment
[1999] FCA 1858INDUSTRIAL LAW – certified agreement – made under Industrial Relations Act 1988 – expiry of nominal term – whether continued in operation – effect of Workplace Relations and Other Legislation Amendment Act 1996 – whether certified agreement as continued post-amendment prevails over inconsistent State awards – whether new or old paramountcy provision operates in respect of pre-amendment certified agreement – effect on proposed registration of inconsistent workplace agreements under Workplace Agreements Act 1993 (WA).
Industrial Relations Act 1988 (Cwth) s 148, s 152, s 170MI
Vocational Education and Training Act 1996 (WA)
Workplace Relations Act1996 s 152
Industrial Relations Reform Act 1993
Conciliation and Arbitration Act 1904
Workplace Relations and Other Legislation Amendment Act 1996 s 3, s 2, Schedule 8 Item 23, Schedule 11 Item 88
Workplace Agreements Act 1993 (WA)
Acts Interpretation Act 1901 (Cth) s 8CFMEU v Mount Thornley Operations (1997) 76 IR 364 cited
Metal Trades Industry Association of Australia v Amalgamated Metal Workers Union (1983) 152 CLR 632 cited
Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529 cited
T A Robinson & Sons Pty Ltd v Haylor (1957) 97 CLR 177 cited
Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 cited
R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1997) 137 CLR 545 cited
State of Victoria v Commonwealth (1996) 187 CLR 416 cited
Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 cited
Ex parte McLean (1930) 43 CLR 472 cited
Beaumont v Yeomans (1934) 34 SR(NSW) 562 cited
Bird v John Sharpe & Sons Pty Ltd (1942) 66 CLR 233 followed
Ku-ring-gai Municipal Council v Attorney-General (NSW) (1957) 99 CLR 251 followed
Mathieson v Burton (1971) 124 CLR 1 followed
Kartinyeri v Commonwealth (1998) 152 ALR 540 cited
Gordonstone Coal Management Pty Ltd v AIRC (1999) 87 IR 296 citedAUSTRALIAN EDUCATION UNION v DEPARTMENT OF TRAINING AND EMPLOYMENT, MINISTER FOR TRAINING AND EMPLOYMENT, COMMISSIONER OF WORKPLACE AGREEMENTS, CENTRAL WEST COLLEGE OF TAFE, GREAT SOUTHERN REGIONAL COLLEGE OF TAFE, KIMBERLEY COLLEGE OF TAFE, MIDLAND COLLEGE OF TAFE, SOUTH EAST METROPOLITAN COLLEGE OF TAFE, SOUTH METROPOLITAN COLLEGE OF TAFE, SOUTH WEST REGIONAL COLLEGE OF TAFE, WEST COAST COLLEGE OF TAFE, CENTRAL METROPOLITAN COLLEGE OF TAFE
W101 of 1999FRENCH J
24 DECEMBER 1999
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W101 OF 1999
BETWEEN:
AUSTRALIAN EDUCATION UNION
ApplicantAND:
DEPARTMENT OF TRAINING AND EMPLOYMENT
First RespondentMINISTER FOR TRAINING AND EMPLOYMENT
Second RespondentCOMMISSIONER OF WORKPLACE AGREEMENTS
Third RespondentCENTRAL WEST COLLEGE OF TAFE
Fourth RespondentGREAT SOUTHERN REGIONAL COLLEGE OF TAFE
Fifth RespondentKIMBERLEY COLLEGE OF TAFE
Sixth RespondentMIDLAND COLLEGE OF TAFE
Seventh RespondentSOUTH EAST METROPOLITAN COLLEGE OF TAFE
Eighth RespondentSOUTH METROPOLITAN COLLEGE OF TAFE
Ninth RespondentSOUTH WEST REGIONAL COLLEGE OF TAFE
Tenth RespondentWEST COAST COLLEGE OF TAFE
Eleventh RespondentCENTRAL METROPOLITAN COLLEGE OF TAFE
Twelfth RespondentJUDGE:
FRENCH J
DATE OF ORDER:
24 DECEMBER 1999
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
It is hereby declared that:
1.That notwithstanding the nominal expiry of the certified agreement known as the Lecturers (Public Sector, Technical and Further Education) Certified Agreement 1996, its terms and conditions continue in force unless and until replaced by a new certified agreement or otherwise terminated according to law.
2.The ten proposed Western Australian Department of Training and Employment Lecturers’ (Public Sector, Technical and Further Education) Collective Workplace Agreements 1999, lodged for registration pursuant to Part 2A of the Workplace Agreements Act 1993 (WA) are inconsistent with the terms and conditions of the Lecturers (Public Sector, Technical and Further Education) Certified Agreement 1996 and are unable validly to be registered, to enter into force, under that Act while the certified agreement continues in force.
3.Liberty to the parties to apply within twenty one days for further ancillary relief.
4.Liberty to apply on the question of costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W101 OF 1999
BETWEEN:
AUSTRALIAN EDUCATION UNION
ApplicantAND:
DEPARTMENT OF TRAINING AND EMPLOYMENT
First RespondentMINISTER FOR TRAINING AND EMPLOYMENT
Second RespondentCOMMISSIONER OF WORKPLACE AGREEMENTS
Third RespondentCENTRAL WEST COLLEGE OF TAFE
Fourth RespondentGREAT SOUTHERN REGIONAL COLLEGE OF TAFE
Fifth RespondentKIMBERLEY COLLEGE OF TAFE
Sixth RespondentMIDLAND COLLEGE OF TAFE
Seventh RespondentSOUTH EAST METROPOLITAN COLLEGE OF TAFE
Eighth RespondentSOUTH METROPOLITAN COLLEGE OF TAFE
Ninth RespondentSOUTH WEST REGIONAL COLLEGE OF TAFE
Tenth RespondentWEST COAST COLLEGE OF TAFE
Eleventh RespondentCENTRAL METROPOLITAN COLLEGE OF TAFE
Twelfth Respondent
JUDGE:
FRENCH J
DATE:
24 DECEMBER 1999
PLACE:
PERTH
REASONS FOR JUDGMENT
Introduction
In August 1996, an agreement was certified by the Australian Industrial Relations Commission pursuant to the Industrial Relations Act 1988 (Cwth) which, broadly speaking, covered the terms and conditions of employment of Technical and Further Education (“TAFE”) Lecturers in Western Australia. The term of the agreement was for two years and that term has now expired. In the meantime the Industrial Relations Act has been extensively amended by the Workplace Relations and Other Legislation Amendment Act 1996 (“WROLA Act”) and renamed the Workplace Relations Act 1996.
Negotiation of a new certified agreement under the Federal Act has hit a stumbling block in part related to the desire of the State of Western Australia to include in any such agreement a clause which would allow it to offer workplace agreements under the Workplace Agreements Act 1993 (WA). In September 1999 the matter came to a head when the State Government submitted, for approval and registration with the State Commissioner for Workplace Agreements, ten such agreements covering ten TAFE Colleges.
The Australian Education Union (“AEU”) maintains that, notwithstanding the 1996 amendments to the Federal Act, the certified agreement continues in force and would render invalid any inconsistent award or the registration of any inconsistent agreement under State law. The AEU seeks declarations and other relief accordingly.
This litigation, which is no doubt merely one element in a matrix of issues affecting the negotiation process, raises questions about the operation of the transitional provisions of the 1996 amendments and, in particular, the continuing operation and effect of pre-amendment agreements and awards.
Background to these proceedings
The AEU and its members are parties to an agreement which was certified on 5 August 1996 by the Australian Industrial Relations Commission, pursuant to s 170MA of what was then known as the Industrial Relations Act 1988. That agreement was designated the “Lecturers (Public Sector, Technical and Further Education) Certified Agreement 1996”. The agreement was expressed to come into force from 5 August 1996 and to remain in force for a period of two years. It referred to a pre-existing federal award made on 4 September 1995 by the Australian Industrial Relations Commission, designated the “Teachers (Public Sector Technical and Further Education) Western Australia Interim Award 1995”. The relationship of the agreement to the pre-existing award was described in cl 6 of the agreement thus:
“The salaries and conditions prescribed in this Agreement shall, to the extent of any inconsistency prevail over the terms prescribed in the Teachers (Public Sector Technical and Further Education) Western Australia Interim Award 1995. Otherwise the terms of the award shall be read wholly in conjunction with this Agreement, and such terms are included in this Agreement.”
The agreement covered all TAFE lecturers employed by the Minister for Education for the State of Western Australia. In January 1997, with the proclamation of the Vocational Education and Training Act 1996 (WA) the various colleges named as respondents became the employers of the lecturers formerly employed by the Minister for Education and covered by the agreement.
Negotiations for a replacement certified agreement pursuant to cl 3 of the certified agreement commenced in February 1998 and involved some thirty nine meetings, up to and including 16 August 1999. The meetings were discontinued about that time as agreement had been unable to be reached. The main issue in contention was the desire of the respondents to have the ability, as a condition of the agreement, to offer State Workplace Agreements. The position of the AEU was that this was unacceptable as the membership had made a choice in 1996 to go to a certified agreement and the proposed clause would give any of the employers the ability to circumvent the certified agreement at any time.
Between 11 August 1999 and 13 August 1999, Mr Ross Playle, an organiser with the State School Teachers Union of Western Australia and a member of the national TAFE Council of the AEU, arranged for the issue of bargaining period notices under s 170MI(2) of the Workplace Relations Act 1996. Each of the notices, signed on behalf of the AEU, and accompanied by a log of claims, gave notice to the Australian Industrial Relations Commission that the AEU intended to try:
“(a)To make an agreement under Division 2 of Part VIB of the Workplace Relations Act 1996 with the relevant employer.
(b)To have an agreement so reached certified under Division 4 of Part VIB of the Act.”
Each notice gave particulars of the proposed agreement as required by s 170MJ indicating, inter alia, that it would cover all employees currently covered by the “Lecturers (Public Sector, Technical and Further Education) Certified Agreement 1996” employed by the relevant employer in respect of whom the notice was being sent.
On 17 August 1999, the solicitors for the AEU wrote to the Western Australian Department of Training and Employment which, through its Senior Employee Relations Officer, was acting as agent for the respondent Colleges. Reference was made to a document issued by the Department entitled “TAFE Lecturers 1999 Workplace Agreements” and a statement in the document that “from 11 August 1999 TAFE lecturers (including casuals) will have the option to sign a Western Australian collective workplace agreement”. The AEU asserted TAFE lecturers were still covered by the 1996 certified agreement and that it continued to have full force and effect under the provisions of the Workplace Relations Act 1996 and in particular s 170LX. The 1996 agreement, it was said, was a “certified agreement” for the purposes of the Act and not an award. The proposed State Workplace Agreements, it was said, could have no operation or effect while the 1996 agreement was in force unless authorised under a Scope Clause in the relevant certified agreement. Clause 3 of the certified agreement provided for the parties to agree to negotiate a replacement agreement and that its terms and conditions should continue to have effect unless and until replaced by a new agreement. The offer of State Workplace Agreements was said to be an indication that the respondents were not genuinely trying to reach an agreement with the AEU in relation to a replacement certified agreement.
By way of response, Mr Peter Wishart, the Manager, Employer Relations at the Western Australian Department of Training and Employment, said that Division 5 of Part VIB and particularly s 170LZ of the Workplace Relations Act 1996 did not apply to the 1996 certified agreement which had predated the 1996 amendments to the Industrial Relations Act 1988. Moreover he asserted pre-commencement certified agreements were not to be regarded as awards or certified agreements under the Act other than for the purposes of the termination provision, s 170MH. The TAFE employers were not prepared to give any undertakings not to continue to offer workplace agreements to TAFE lecturers. Thus was the issue joined between the parties which lies at the heart of these proceedings.
On 3 September 1999, the Department of Training and Employment lodged for approval and registration with the State Commissioner of Workplace Agreements, nine State Collective Workplace Agreements covering the Colleges named as respondents to these proceedings, save for the C Y O’Connor College. A tenth State Collective Workplace Agreement was lodged for the C Y O’Connor College on 6 September 1999. All of the Workplace Agreements were identical except for aspects that inserted the name of the College, including the title, the parties bound and the signatories. There were a number of differences between the Workplace Agreements and the certified agreement of 1996.
On 28 September 1999, the AEU filed an application in this Court seeking declaratory and other relief pursuant to s 413A of the Workplace Relations Act 1996 and s 39B(1A)(c) of the Judiciary Act 1903 (Cth). To understand the basis of the relief claimed it is necessary to have regard to the relevant legislation and, in particular, applicable transitional provisions.
Statutory Framework – Industrial Relations Act 1988
Because this application concerns the operation of transitional provisions as between the Industrial Relations Act 1998 under which the certified agreement was made, and the Workplace Relations Act 1996, under which it is sought to negotiate a further agreement, it is necessary to consider in overview the relevant parts of the Industrial Relations Act 1998 and the changes effected by the amendments which led to its redesignation as the Workplace Relations Act 1996.
At the time that the certified agreement was made and certified the Industrial Relations Act applied. Part VI of that Act entitled “Dispute Prevention and Settlement” set out the functions of the Commission generally (Division 1), its powers and procedures in dealing with industrial disputes (Division 2), other particular powers of the Commission (Division 3), ballots ordered by the Commission (Division 4), common rules (Division 5) and, importantly for present purposes, awards of the Commission (Division 6). Part VIB was introduced into the Act by the Industrial Relations Reform Act 1993 (Cth). It was headed “Promoting Bargaining and Facilitating Agreements.” It provided, inter alia, for the making of certified agreements (Division 2) and enterprise flexibility agreements (Division 3). It conferred on the Commission a role in facilitating agreements so made (Division 5). Significantly the subject matter of awards which could be made under Part VI of the Act was as wide ranging as the subject matter of certified agreements under Part VIB. The definition of “award” in s 4 of the Industrial Relations Act included certified agreements and was as follows:
““award” means:
(a)an award or order that has been reduced to writing under subsection 143(1); or
(b)a certified agreement; or
(c)an enterprise flexibility agreement;
but does not include an award made in a consent arbitration conducted under Subdivision C of Division 3 of Part VIA.”
A “certified agreement” was defined in the same section as “an agreement certified under Division 2 of Part VIB”.
The objects of Part VIB were set out in s 170LA and included the making and certifying of agreements under Division 2 of that Part. Division 2 headed “Certified Agreements” began with s 170MA which provided, inter alia:
“170MA(1) If the parties to an industrial dispute, or any of them, agree on terms for:
(a)the settlement of all or any of the matters in dispute; or
(b)the prevention of further industrial disputes between them;
they may make a memorandum of the terms agreed on.
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(4) All or any of the parties to the agreement may apply to the Commission to certify the agreement.”
Sections 170MB to 170MH provided for procedures relating to the certification or refusal of certification by the Commission. Section 170MI related to the operation of certified agreements and was in the following terms:
“170MI(1) A certified agreement comes into force when it is certified and, during the period of the agreement and for 3 months after that period, it remains in force unless:
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.(c)the period of the agreement has ended and the agreement is replaced by a new certified agreement or by an enterprise flexibility agreement.
(2) During the period of the agreement and for 3 months after that period, subsections 148(1) and (3) do not apply to the agreement, but subsection 148(2) does so apply.
(3) If the agreement remains in force until the end of 3 months after the period of the agreement, then, at the end of those 3 months:
(a)section 148 applies to the agreement; and
(b)the agreement continues in force accordingly.
(4) In the application of section 148 to the agreement in accordance with this section, a reference in that section to the period specified in the award as the period for which the award is to continue in force is taken to be a reference to the period of the agreement.
(5) In this section:
“period of the agreement” means the period of operation of the agreement specified in the agreement, or that period as extended or further extended under section 170MJ.”
Section 148 is in the following terms:
“148(1) Subject to section 113 and any order of the Commission, an award dealing with particular matters continues in force until a new award is made dealing with the same matters.”
Subsections (2) and (3) relate to the inclusion of long service, sick leave and superannuation benefit provisions and the date of commencement of replacement awards made by the Commission. Section 113, to which s 148 is expressly subject, relates to the setting aside or variation of awards and is not relevant for present purposes. The combined effect of s 170MI and s 148 was that the legal force of a certified agreement for the period of operation specified in the agreement and for three months thereafter was conferred by s 170MI(1) and if it were still in force at the end of the three month period it could be continued in force by operation of s 148(1) until a new award (which term included a new certified agreement) was made dealing with the same matters. That continuation was subject to termination upon review by the Full Bench of the Australian Industrial Relations Commission or by application of a party to the Commission.
Variation or termination of certified agreements by a Full Bench was provided for in s 170MM. Section 170MN provided for their termination upon application by the parties. Thus, s 170MN(1) to (3) was in the following terms:
“170MN(1) A party to a certified agreement may, with the consent of all the relevant parties, give the Commission written notice stating that the party does not want to remain bound by the agreement.
(2) All the parties to a certified agreement may jointly give the Commission written notice stating that they want the agreement to be terminated.
(3) On receipt of such a notice, if the Commission is satisfied that it would be in the public interest for the party to be no longer bound or for the agreement to be terminated, as the case may be, the Commission may, by order, make a declaration to that effect.”
Subsection 170MN(4) defined “relevant party” in terms of employers and organisations of employers and employees.
The relationship between awards and agreements made under the Industrial Relations Act 1988 prior to the 1996 amendments and State awards was defined by s 152, which provided:
“152. Where a State law, or an order, award, decision or determination of a State industrial authority, 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.”
Section 152 in this form has a considerable statutory ancestry, its terms reflecting those of variously numbered like provisions in the Conciliation and Arbitration Act 1904 (Cth).
Section 153 made provision for applications to the Industrial Relations Court of Australia for a declaration that a State law dealing with an industrial matter, or an order, award, decision or determination of a State industrial authority was invalid under s 152.
Statutory Framework – The Workplace Relations Act 1996 and Transitional Provisions
The Industrial Relations Act was substantially amended by the Workplace Relations and Other Legislation Amendment Act 1996 (No 60 of 1996) (WROLA Act). The Second Reading Speech characterised the role of awards under the amended Act as “a genuine safety net” – Parl Deb H of R 23/5/96 p 1298. Consistent with this purpose the Commission’s jurisdiction to incorporate matters in awards was to be confined to certain “allowable award matters”. All matters beyond those specified in the legislation were generally to be determined, at the enterprise or workplace level in formal agreements or informally. Options for agreement making were to be “significantly expanded”. Access to agreements under State jurisdictions was also to be provided. In relation to certified agreements it was said:
“The current certified agreement provisions are being revised substantially. Transitional arrangements apply to cover existing agreements including Enterprise Flexibility agreements, provision for which is being repealed.” – Parl Deb H of R 23/5/96 p 1301
Apart from four introductory sections, the WROLA Act comprised eighteen schedules. Section 3 provided:
“Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.”
The commencement of each of the Schedules and particular items therein was set out in s 2. The subsections relevant for present purposes are as follows:
“2(2) Subject to subsection (3), the items of the Schedules, other than Schedule 5, item 1 of Schedule 9, item 90 of Schedule 16 and the items of Schedules 12 and 19, commence on a day or days to be fixed by proclamation.
(3) If an item of a Schedule does not commence under subsection (2) within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.
(4) Schedule 5 commences on 1 January 1997.
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(7) If item 41 of Schedule 5 and item 3 of Schedule 6 commence on the same day, item 3 of Schedule 6 commences immediately after item 41 of Schedule 5.”The commencement date fixed by proclamation for the Items of Schedules other than those specified in subs 2(2) was 31 December 1996.
By Item 2 in Schedule 6 the opening words of s 152 were changed so that s 152(1) would read:
“Subject to this section, if a State law or a State award 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.”
Item 3 in Schedule 6 added a new subsection (1A) to s 152 as follows:
“(1A) If a State law or a State award makes provision in respect of the termination of an employee’s employment, any provision in a Federal award that also makes provision in respect of the termination of employment of the employee is not to be taken to show an intention to cover the field to the exclusion of that State law or State award.”
Schedule 5 was headed “Awards”. In Item 41 it amended s 152 to provide that in certain circumstances inconsistent State awards could co-exist with Commonwealth awards. This was effected by adding to s 152 new subsections (2) to (5). Subsection 152(2) rendered an award under the Commonwealth Act not binding if at the time that it would otherwise have become binding the wages and conditions of employment of the relevant employee were regulated by a State employment agreement. Subsections 152(3) and (4) which are relevant for present purposes provide:
“152(3) If, at a particular time, a State employment agreement that is made after the commencement of this subsection would regulate wages and conditions of employment of an employee but for the fact that an award is binding on an employer in respect of the employee then:
(a)the award does not prevent the agreement from coming into force and regulating the wages and conditions of employment of the employee; and
(b)while the agreement continues to regulate those wages and conditions, the award is not binding on any person in respect of the employee.
(4) In subsection (3), award does not include an award made under subsection 170MX(3).”
Subsection (5) excludes the application of subss (2) and (3) to a State employment agreement if the agreement has not been approved by a State industrial authority under a State Act which required the authority, before approving the agreement, to be satisfied, inter alia, that the employees covered by the agreement are not disadvantaged in comparison to their entitlements under the relevant award. The new form of s 152 deals with the qualified paramountcy of awards under Federal law and must be read in conjunction with the changed definition of “award” effected by Schedule 11 which no longer includes certified agreements and the paramountcy provision specific to certified agreements which is found in the new s 170LZ.
Another significant change effected by the amendments was the narrowing of the range of matters covered by an award relative to the matters which could be covered by a certified agreement. There was, to that extent, an uncoupling of the two mechanisms. So in s 89A, introduced by Schedule 5 of the Amendment Act, it was provided that for the purposes of preventing or settling an industrial dispute by making an award or order, an industrial dispute would be taken to include only matters covered by subss 89A(2) and (3). These are designated as “allowable award matters”.
Schedule 5 contained transitional provisions which pertained to its operation. These are set out in Part 2 of the Schedule. They comprised Items 46 to 55 inclusive. Item 49 dealt with the variation of awards during an interim period commencing 1 January 1997 and ending 30 June 1998. It was defined in Item 46 as “the period of 18 months beginning on the day on which section 89A of the Principal Act commences”. The Principal Act was defined as the Workplace Relations Act1996.
Item 50 provided that at the end of the interim period, each award would cease to have effect to the extent that it provided for matters other than allowable award matters. And under Item 51 the Commission was required, as soon as practicable after the end of the interim period to review each award that was in force and to vary the award to remove provisions that ceased to have effect under Item 50.
Schedule 8 of the amendment Act dealt with certified agreements. Item 19 of Schedule 8 repealed Part VIB of the Workplace Relations Act 1996 and substituted a new Part VIB designated “Certified agreements”. The object of the new Part VIB is expressed in s 170L as being “to facilitate the making, and certifying by the Commission, of certain agreements, particularly at the level of a single business or part of a single business.” Division 2 comprising ss 170LH to 170LM provides for making agreements with constitutional corporations or the Commonwealth. Division 3, which covers ss 170LN to 170LS deals with making agreements about industrial disputes and industrial situations. Division 4 deals with the process of certification of an agreement and runs from s 170LT to s 170LW. Division 5 deals with the effect of certified agreements and by s 170LX provides:
“170LX(1) A certified agreement comes into operation when it is certified and, subject to this section, remains in operation at all times afterwards.
(2) The agreement ceases to be in operation if:
(a)its nominal expiry date has passed; and
(b)it is replaced by another certified agreement.”
A new paramountcy provision specific to certified agreements was introduced by s 170LZ, which provides:
“170LZ(1) Subject to this section, a certified agreement prevails over terms and conditions of employment specified in a State law, State award or State employment agreement, to the extent of any inconsistency.
(2) Provisions in a certified agreement that deal with the following matters operate subject to the provisions of a State law that deals with the matter:
(a)occupational health and safety;
(b)workers’ compensation;
(c)apprenticeship
(d)any other matter prescribed by the regulations.
(3) If a State law, State award or State employment agreement provides a remedy for the termination of an employee’s employment, subsection (1) is not intended to affect the provisions of the State law, State award or State employment agreement that relate to termination of employment, so far as those provisions are able to operate concurrently with the certified agreement.
(4) To the extent of any inconsistency, a certified agreement displaces prescribed conditions of employment specified in a Commonwealth law that is prescribed by the regulations.
(5) In this section:
Commonwealth law means an Act or any regulations or other instrument made under an Act.
Prescribed conditions means conditions that are identified by the regulations.
State law means a law of a State or Territory (including any regulations or other instrument made under a law of a State or Territory), but does not include a State award or a State employment agreement.”
A new termination provision, s 170MH, was introduced as part of the new Part VIB by Schedule 8. That section provides as follows:
“170MH(1) After the nominal expiry date of a certified agreement:
(a)the employer; or
(b)a majority of the employees whose employment is subject to the agreement; or
(c)an organisation of employees that is bound by the agreement and that has at least one member whose employment is subject to the agreement;
may apply to the Commission to have the agreement terminated.
(2) On receiving the application, the Commission must take such steps as it considers appropriate to obtain the views of persons bound by the agreement about whether it should be terminated.
(3) If, after complying with subsection (2), the Commission considers that it is not contrary to the public interest to terminate the agreement, the Commission must, by order, terminate the agreement.
(4) The termination takes effect when the Commission’s order takes effect.”
The application and transitional provisions of Schedule 8 are found in Part II. Part II comprises Item 23. Items 23(1) and 23(2) provide:
“23(1) Subject to this item, the amendments made by this Schedule apply to:
(a)an agreement made after the commencement of this Schedule; and
(b)a bargaining period, for a proposed agreement, initiated after the commencement of this Schedule.
23(2) If:
(a)an agreement was entered into before the commencement of this Schedule and was covered by Division 2 of Part VIB of the Workplace Relations Act 1996 as then in force; and
(b)whether before or after the commencement of this Schedule:
(i)the period of operation specified in the agreement; or
(ii)if it has been extended or further extended under section 170MJ of that Act as in force at the time – that period as extended or further extended;
has ended;
then, after the commencement of this Schedule, section 170MH of that Act as amended by this Schedule, instead of section 170MN of that Act as in force immediately before the commencement of this Schedule, applies to the agreement.”
In the Explanatory Memorandum, subitem 23(2) was explained thus:
“Subitem (2) provides that certified agreements in force at the time the new provisions come into effect are to be subject to the new post-expiry termination procedures.”
Subitem 23(3) provides for enterprise flexibility agreements whose period of operation extended beyond the commencement of Schedule 8 to prevail over an inconsistent certified agreement. Subitem (4) provides that a certified agreement (whether made before or after the commencement of the Schedule) would prevail over an inconsistent enterprise flexibility agreement continued in force under Schedule 9. By subitem 23(5), subs 170LY(2) and (3) as amended, is to apply to certified agreements whether certified before or after the beginning of the Schedule. By s 170Y a certified agreement prevails over an award to the extent of any inconsistency.
Schedule 11 dealt with consequential amendments relating to certified agreements, Australian Workplace Agreements and enterprise flexibility agreements. By Item 1, the definition of “award” in subs 4(1) of the former Act was amended to read as follows:
““award” means an award or order that has been reduced to writing under subsection 143(1), but does not include an order made by the Commission in a proceeding under Subdivision B of Division 3 of Part VIA.”
The former definition of “award” which included a certified agreement, was repealed by this item.
Item 88 of Part 4 of Schedule 11 provides as follows:
“88. Part 2 of Schedule 8 applies to the amendments made by this Schedule so far as they relate to certified agreements, in the same way as that Part applies to the amendments made by Part 1 of Schedule 8.”
In the Bill as originally introduced into Parliament, what was enacted as Item 88 of Schedule 11 was then numbered Item 87 of Schedule 12. The Explanatory Memorandum said of it:
“This amendment proposes that the amendments relating to CAs set out in Schedule 12 are subject to the provisions of Part 2 of Schedule 9 which provide for how the amendments of that schedule are to apply.”
Translated into the renumbered Act, the Item proposed that amendments relating to certified agreements set out in Schedule 11 are subject to the provisions of Part 2 of Schedule 8 which provide for how the amendments of that Schedule are to apply – Workplace Relations and Other Legislation Amendment Bill 1996 – Explanatory Memorandum par 12.40.
Statutory Framework – The Workplace Agreements Act 1993 (WA)
The workplace agreements proposed by and on behalf of the respondents are proposed under the provisions of the Workplace Agreements Act 1993 (WA). Part 2A of that Act relates to workplace agreements for federal award employees. It covers ss 40A to 40K. Part 2A is said to apply to a collective workplace agreement that, in accordance with s 152 of the Workplace Relations Act 1996, is intended by the parties to prevail over an award under that Act (s 40B). Workplace agreements to which Part 2A applies require approval by a tribunal consisting of the Commissioner of Workplace Agreements (s 40D). Any party to an agreement to which Part 2A applies may, in accordance with the regulations, lodge the agreement with the Tribunal for approval (s 40F). Where an agreement is lodged for approval, the Tribunal is to satisfy itself that the agreement complies with the State Act and that employees covered by the agreement are not disadvantaged in comparison to their entitlements under the relevant award. Where the Tribunal is satisfied of the matters of which it must be satisfied under s 40G, it is required to approve the agreement and give the parties and the Commissioner notice in writing of the approval. Where the Commissioner receives notice that an agreement has been approved, the Commissioner is to register the agreement as a workplace agreement (s 40I). Part 2A of the Workplace Agreements Act 1993 is intended to interlock with s 152 of the Workplace Relations Act 1996, which allows for the co-existence with federal awards of awards and agreements under State law.
Relief Claimed
The AEU claimed in its application:
“1.A declaration that the Lecturers (Public Sector, Technical and Further Education) Certified Agreement 1996 [Print L0369] is not an award for the purposes of section 152 of the Workplace Relations Act 1996.
2.A declaration that on a true interpretation of Clause 3 of the Lecturers (Public Sector, Technical and Further Education) Certified Agreement 1996 [Print L0369], notwithstanding the nominal expiry of the certified agreement, its terms and conditions shall continue to have effect unless and until replaced by a new certified agreement.
3.A declaration that the ten (10) proposed Western Australian Department of Training and Employment Lecturers’ (Public Sector Technical and Further Education) Collective Workplace Agreement(s) 1999 lodged for registration pursuant to Part 2A of the Workplace Agreements Act 1993 (WA), are inconsistent with the terms and conditions of the Lecturers (Public Sector, Technical and Further Education) Certified Agreement 1996 [Print L0369] and are therefore invalid as a workplace agreement whilst the terms and conditions of the certified agreement have effect.
4.A declaration that s 152 of the Workplace Relations Act 1996 has no application where a certified agreement governs the salaries and conditions of employees who would otherwise be covered by a Federal award.
5.Such further or other orders as the Court deems appropriate.”
Interlocutory relief was also sought by the AEU but in the event the Commissioner for Workplace Agreements, who has given notice of his intention to abide the decision of the Court, has undertaken to refrain from approving or registering the collective Workplace Agreements made under the State legislation.
The Continuing Operation of the 1996 Certified Agreement
The AEU submits that the 1996 certified agreement was a pre-commencement certified agreement for the purposes of Item 23 of Schedule 8 of the WROLA Act. It is said to continue to have force or effect as a certified agreement until terminated or replaced under ss 170MI(3) and (4). The Workplace Relations Act 1996, it is said, does not expressly or by necessary implication deny to a pre-commencement certified agreement the status, force and effect of a certified agreement. This proposition relies in part upon Item 23(2) of Schedule 8 which provides that the means of terminating a pre-commencement certified agreement are as set out in s 170MH.
The respondents, on the other hand, argue that Item 23(1) confines the amendments made by Schedule 8 to post amendment certified agreements save for the new termination provision, s 170MH, which will apply to certified agreements whose period of operation has ended, whether before or after commencement. Similarly in Schedule 11, it is said, there is a confining of the operation of the Schedule by Item 88 to post amendment certified agreements. These provisions are contrasted, in a kind of expressio unius argument, with Schedule 5 of the WROLA Act which contains no such confinement.
It is not lightly to be assumed that the Parliament would have interfered with surviving certified agreements albeit they were surviving beyond three months after their formal expiry by operation of s 148 as applied by s 170MI(3). The life after nominal death provisions were part of the statutory framework within which such agreements were concluded in the first place. By Item 19 of Schedule 8, s 170MI, giving post expiry force to such agreements, was repealed along with the rest of Part VIB. But that repeal is to be read subject to s 8 of the Acts Interpretation Act 1901 (Cth) and the transitional provisions of the WROLA Act. Section 8 of the Acts Interpretation Act, in the relevant parts, provides as follows:
“Where an Act repeals in whole or in part a former Act, then unless the contrary intention appears the repeal shall not:
(a)revive anything not in force or existing at the time at which the repeal takes effect; or
(b)affect the previous operation of any Act so repealed, or anything duly done or suffered under any Act so repealed; or
(c)affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or
…”
Unless a contrary intention is to be discerned in the transitional provisions, the rights and obligations created by virtue of the certified agreement and continued beyond its expiry and beyond three months thereafter by s 170MI(3) will continue unaffected by the repeal of that section. Item 23(1) of Schedule 8 evinces no contrary intention for it merely applies the amendments, including the repeal of Part VIB, to agreements made after the commencement of the Schedule. Item 23(2) affects pre-amendment agreements only to the extent that the new termination provision, s 170MH, applies. As noted already, the Explanatory Memorandum makes clear that the object of Item 23(2) is to subject certified agreements in force at the time the amendments came into operation, to the new post-expiry termination procedure. Subsequent sub-items deal with paramountcy as between certified agreements, whenever made, enterprise flexibility agreements (23(3) and (4)), awards and exceptional matter orders (s 23(5)). As Moore J observed of Item 23 in CFMEU v Mount Thorley Operations (1997) 76 IR 364 at 370:
“These provisions indicate that a certified agreement made under the repealed legislation continues to have legal effect although that effect is subject to the operation of the new legislation in the way identified in these sub-items of item 23.”
As to the operation of Item 28 of Schedule 11, I agree with the conclusion of Moore J that Item 88 was not intended simply to treat certified agreements as existing for the purposes identified in Part 2 of Schedule 8. I agree also with his Honour’s view that:
“…the purpose of item 88 was to notionally preserve the operation of agreements certified under the repealed law and render applicable to them the sections introduced by the earlier parts of Sch 11…”.
The substitution by Schedule 11 of a new definition of “award” for the old, dropping the references to certified agreements, could not of itself affect the operation of such agreements certified prior to the WROLA Act. Nor could it affect the continuing operation of the pre-amendment version of s 152 to which reference is made in the next section. The scope of the paramountcy of pre-amendment awards is not affected by the reduction of the scope of such awards. In any event, Schedule 11 effects a repeal of the old definition of award. Section 8 of the Acts Interpretation Act will operate to continue rights and liabilities accrued by virtue of the operation of the repealed provision.
In my opinion therefore, the 1996 certified agreement is continued in operation by virtue of the pre-amendment provisions of s 170MI, read with s 8 of the Acts Interpretation Act, notwithstanding the repeal of s 170MI. The question that then falls for consideration is whether s 152 of the Act in its pre-amendment form, read with s 8 of the Acts Interpretation Act, continues to govern the relationship between pre-amendment certified agreements and State awards.
The Continuing Operation of Section 152
It is necessary first to consider the operation of s 152 before and after the changes to it which were wrought by the WROLA Act. In one sense, in its pre-amendment form, s 152 was otiose. Despite its terms, if could not validly of its own force invalidate a State law or an award or agreement made under such a law. However, the course of authority about s 152 and its previous versions in the Conciliation and Arbitration Act 1904, had enshrined its construction as “evincing a statutory intention that an award made pursuant to the Act is to operate to the exclusion of any State law” – Metal Trades Industry Association of Australia v Amalgamated Metal Workers Union (1983) 152 CLR 632 at 649. This is notwithstanding concerns that by purporting, in language reaching beyond that of s 109 of the Constitution, to invalidate inconsistent State legislation it may have gone too far – Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529 at 548-549; T A Robinson & Sons Pty Ltd v Haylor (1957) 97 CLR 177 at 182; Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237. Mason J, with whom all other Justices agreed in R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1997) 137 CLR 545 at 563 said:
“…although a provision in a Commonwealth statute which attempts to deny operational validity to a State law cannot of its own force achieve that object, it may nevertheless validly evince an intention on the part of the statute to make exhaustive or exclusive provision on the subject with which it deals, thereby bringing s 109 into play.”
In State of Victoria v Commonwealth (1996) 187 CLR 416 at 540, the Court held s 152 to be valid on general principle albeit specifically in its application to enterprise flexibility agreements which involve constitutional corporations. It did so on the basis that the Constitution authorises legislation as to the industrial rights and obligations of persons employed by such corporations and that the constitutional powers which authorise such laws also authorise laws specifying that they are exclusive of other rights and liabilities, whether that specification is express or implied. So it was said:
“Section 152 is, thus, valid in its specification that the rights and obligations which flow from approval of an enterprise flexibility agreement are exclusive of those which might otherwise arise under a State law, or an order, award, decision or determination of a State industrial authority.”
The Court went on:
“The effect of Div 3 of Pt VIB is to provide that, if the Commission so approves, the industrial rights and obligations of a constitutional corporation, as defined in s 4(1) of the Act, and its employees, are those upon which it and its employees have agreed. The combined effect of the definition of “award” in s 4(1) of the Act and s 152, in its application to enterprise agreements, is to give those rights and obligations the same statutory protection as those provided for by an award of the Commission, and to provide expressly that they are exclusive of rights and obligations which might otherwise be imposed by State law or by an order, award, decision or determination of a State industrial authority. Section 152 is, therefore, valid in its application to agreements approved under Div 3 of Pt VIB of the Act.”
These considerations apply, by parity of reasoning, to s 152 in its application to certified agreements approved under Division 2 of Part VIB of the Act, albeit its constitutional support derived not from the corporation’s power but from s 51(xxxv) of the Constitution.
An award made under Commonwealth law, which is the subject of s 152, is not itself a law of the Commonwealth. But the terms of such an award complete the relevant statutory rule of law “by satisfying the conditions for operation of the statute” – Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 at 497-499 (Isaacs J). In Ex parte McLean (1930) 43 CLR 472 at 479 Isaacs CJ and Starke J said:
“The award itself is, of course, not law, it is a factum merely. But once it is completely made, its provisions are by the terms of the Act itself brought into force as part of the law of the Commonwealth. In effect, the statute enacts by the prescribed constitutional method the provisions contained in the award.”
The amendments to s 152 effected by Item 41 of Schedule 5 and Item 2 of Schedule 6 were said not to work a repeal. So, it was contended for the respondents, s 8 of the Acts Interpretation Act, dealing with the repeal of an act, would not continue the operation of s 152 in respect of post-amendment certified agreements. But the application of s 8 of the Acts Interpretation Act is to be approached as a matter of substance and not as a matter of form. Legislative change may amount to repeal under that designation. A change may be designated an amendment and sedulously avoid the use of the word “repeal” yet be seen to work a repeal – Beaumont v Yeomans (1934) 34 SR(NSW) 562 at 570; Bird v John Sharpe & Sons Pty Ltd (1942) 66 CLR 233; Ku-ring-gai Municipal Council v Attorney-General (NSW) (1957) 99 CLR 251; Mathieson v Burton (1971) 124 CLR 1 at 10-12 (Windeyer J), 20 (Gibbs J). An amendment may take the form of or include a repeal – Kartinyeri v Commonwealth (1998) 152 ALR 540 at 565 (Gummow and Hayne JJ). It is to be remembered that under s 8A the reference in s 8 to the repeal of an Act or of a part of an Act includes a reference to:
“(a)a repeal effected by implication;
(b)the abrogation or limitation of the effect of the Act or part; and
(c)the exclusion of the application of the Act or part to any person, subject matter or circumstance.”
In Beaumont v Yeomans it was said:
“…where a provision of an Act is repealed and re-enacted in a form which enlarges its scope, this has been construed as amounting in substance to an amendment, because the new provision has been regarded as intended to be retrospective so far as it is mere repetition, and prospective so far as it is new.”
It was contended for the respondents that the amendments to s 152 had enlarged its scope in the sense that there were positive additions to it. But s 152 in its original form, reflected a long standing statement of the statutory intention that awards made pursuant to the Commonwealth Act were to operate to the exclusion of any State law. That statement of statutory intention has been substantially narrowed in its scope by the amendments which, to that extent, have worked a repeal of the section in part. They have carved out of its previous operation that which is incorporated by reference in the words “subject to this section” with which it now begins. The statement of statutory intention operative, by virtue of s 152 as it stood at the time of the making of pre-amendment awards, including certified agreements, therefore continues in effect in relation to them. In terms of s 8 of the Acts Interpretation Act the repeal, in part, of s 152 does not “affect the previous operation” of the part of the section so repealed or anything done or suffered under it. The statutory intention applied by the force of s 152 to pre-amendment awards, including certified agreements, therefore continues in effect.
The respondents submitted by way of a fall back argument that there was an intention in the WROLA Act to negative the application of s 8 of the Acts Interpretation Act in respect of s 152. Reliance was placed upon Part 2 of Schedule 8 and Schedule 11 of the WROLA Act. The submission was not developed beyond the observation that the Schedule 8 amendments were expressly applied to post-amendment agreements, as were the amendments in Schedule 11. This too seems to have been advanced as an expressio unius argument, there being no such limiting provisions in Schedules 5 and 6 which dealt, inter alia, with the amendments to s 152. The distinction, however, is of no relevance to the operation of s 152. Rather it reflects the different subject matter of the Schedules in question.
The respondents relied also upon the decision of the Full Court in Gordonstone Coal Management Pty Ltd v AIRC (1999) 87 IR 296. There the Court held that s 89A of the Workplace Relations Act, introduced by Schedule 5 of the WROLA Act, and limiting the scope of industrial disputes to allowable award matters, applied to both pre-amendment and post-amendment agreements. Since Schedule 5 applied s 89A to agreements made before and after the amendments, it followed, so it was submitted, that s 152, as amended, was not precluded from application to the certified agreement. The amendments made to the section were not limited in their application to post-amendment certified agreements.
The provision in question related to the jurisdiction of the Commission. It confined that jurisdiction by limiting the scope of “industrial disputes” necessary to enliven it to the “allowable award matters” set out in s 89A(2). The Full Court said in respect of the certified agreement (at 306):
“We reject the submission that the agreement is not a certified agreement for the purposes of the Workplace Relations Act. Although the provisions of Sch 8 may not be applicable to the certified agreement because they only apply to agreements made after the commencement of Sch 8 (see Item 23 in Sch 8), s 89A is contained in Sch 5 and is not so limited and is generally applicable in respect of all certified agreements whenever made.”
The applicants argued that the reasoning of the Full Court led to the conclusion that the amendments to s 152 were not limited in their application to post-commencement certified agreements. But the continuance of the old s 152, as outlined above, is based on an entirely different foundation from that which grounded the Full Court’s findings in respect of s 89A. The latter is a new provision introduced by the WROLA Act. The continuance of s 152 is supported by s 8 of the Acts Interpretation Act and the want of any contrary intention in the WROLA Act.
Inconsistency between the 1996 Certified Agreement and the Proposed Workplace Agreements
It was common ground between the parties that the 1996 certified agreement is inconsistent with the workplace agreements proposed under the Workplace Agreements Act 1993 (WA). The 1996 certified agreement, it is said, deals exhaustively with its subject matter. It is accepted by the respondents that the workplace agreements, purporting to deal with the same subject matter, are inconsistent for that reason.
Whether the 1996 Certified Agreement is an Award under the Workplace Relations Act 1996
The AEU submits that if, contrary to its primary submissions, the 1996 certified agreement were not a certified agreement for the purpose of the Industrial Relations Act 1988, neither was it an award for the purpose of the amended s 152. Having regard to the conclusions I have reached, about the continuing operation of s 152 in relation to the agreement, this question does not arise for determination.
Negotiation of Replacement Certified Agreement
It is also contended for the AEU that cl 3 of the 1996 certified agreement requires the parties to reach agreement on a replacement certified agreement and by implication excludes any other form of agreement including Part 2A workplace agreements. Clause 3 provides:
“The parties shall meet at least six (6) months prior to the expiry of this Agreement to negotiate a replacement agreement. Notwithstanding the expiry of this Agreement, its terms and conditions shall continue to have effect unless and until replaced by a new agreement.”
I accept the submission for the respondents, however, that this clause does not exhaustively cover the process for termination of a pre-amendment certified agreement. The termination provision, s 170MH operates upon pre-amendment agreements by virtue of Item 23(2).
Teachers (Public Sector Technical and Further Education) Western Australia Interim Award 1995
The Respondents say that the relevant Federal Award for the purposes of the application of Part 2A of the Workplace Agreements Act 1993 is the 1995 interim award. The AEU says that the interim award was overtaken by the 1996 certified agreement and, in particular, cl 6 of the agreement. That clause, it is submitted, was intended completely to subsume the interim award. Reliance is also placed upon s 148 which, in its pre-amendment and post-amendment form, continues an award in force “until a new award is made dealing with the same matters”. In my opinion, while it may be open to say that the interim award is not simply absorbed by the certified agreement and extinguished as a distinct source of rights, their fates are inextricably linked. The terms of the award being read wholly in conjunction with the certified agreement and imported into it by reference, subject to inconsistency, cannot have been intended, consistently with that agreement, to have any operation beyond the time that it is terminated. The intention disclosed by cl 6 of the certified agreement was, in effect, to supplant the interim award while importing some elements of it into the certified agreement. Even if, as a matter of technical analysis, it might be said that the interim award subsisted as a distinct source of rights, its survival beyond the certified agreement would be inconsistent with the intention of that agreement.
Conclusion
Having found in favour of the AEU on the continuing paramount operation of the 1996 certified agreement, the question is what relief is appropriate. The validity of the workplace agreements themselves does not arise for determination. Rather, it is a question whether those agreements can validly be registered and therefore come into force under the State Act having regard to the continuing operation of s 152 in respect of the 1996 certified agreement. For the reasons given above, the answer is in the negative. The appropriate relief would be a declaration in terms of 2 and 3 in the application, with the latter in a modified form to reflect the proposition that the relevant interaction, for the purposes of s 152, is between the 1996 certified agreement and the effect of registration in relation to the proposed workplace agreements. Declarations should be made in the following terms:
1.That notwithstanding the nominal expiry of the certified agreement known as the Lecturers (Public Sector, Technical and Further Education) Certified Agreement 1996, its terms and conditions continue to have effect unless and until replaced by a new certified agreement or otherwise terminated according to law.
2.The ten proposed Western Australian Department of Training and Employment Lecturers’ (Public Sector, Technical and Further Education) Collective Workplace Agreements 1999, lodged for registration pursuant to Part 2A of the Workplace Agreements Act 1993 (WA) are inconsistent with the terms and conditions of the Lecturers (Public Sector, Technical and Further Education) Certified Agreement 1996 and are unable validly to be registered to enter into force under that Act while the certified agreement continues in force.
3.Liberty to the parties to apply within twenty one days for further ancillary relief.
4.Liberty to apply on the question of costs.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate:
Dated: 24 December 1999
Counsel for the Applicant: Mr RC Kenzie QC with Mr A L Drake-Brockman Solicitor for the Applicant: Dwyer Durack Counsel for the Respondent: Mr G T W Tannin with Ms J H Smith Solicitor for the Respondent: State Crown Solicitor Date of Hearing: 6 December 1999 Date of Judgment: 24 December 1999
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