BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers

[2006] WASCA 49 (S)

BHP BILLITON IRON ORE PTY LTD -v- CONSTRUCTION, FORESTRY, MINING & ENERGY UNION OF WORKERS & ANOR [2006] WASCA 49 (S)

Jurisdiction:	WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT	Citation No:	[2006] WASCA 49 (S)
Case No:	IAC:5/2005	Heard:	1 & 2 NOVEMBER 2005, 7 APRIL 2006
Coram:	WHEELER J PULLIN J LE MIERE J	Delivered:	29/03/06
Supplementary Delivered:	17/05/06
No of pages:	11	Judgment Part:	1 of 1
Result:	Orders made
Category:	B
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Parties:	BHP BILLITON IRON ORE PTY LTD CONSTRUCTION, FORESTRY, MINING & ENERGY UNION OF WORKERS INTEGRATED GROUP LTD t/as INTEGRATED WORKFORCE
Catchwords:	Industrial law Workplace Relations Amendment (Work Choices) Act 2005 (Cth) Jurisdiction of Industrial Appeal Court
Legislation:	Acts Interpretation Act 1901 (Cth), s 8 Industrial Relations Act 1979 (WA), s 8, s 23, s 27, s 49, s 90(3) Workplace Relations Act 1996 (Cth), s 4(1), s 6, s 16(1) Workplace Relations Amendment (Work Choices) Act 2005 (Cth) Workplace Relations Regulations 2006 (Cth), reg 4.55(1)
Case References:	BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining & Energy Union of Workers & Anor [2006] WASCA 49 CFMEU v Hanssen [2005] 85 WAIG 1264 Commissioner of Inland Revenue v Maple & Co (Paris) Ltd [1908] AC 22 Maxwell v Murphy (1956) 96 CLR 261 Oceanic Life Ltd & Anor v Chief Commissioner of Stamp Duties (1999) 168 ALR 211 Allesch v Maunz (2000) 203 CLR 172 Anthony Hordern & Sons Ltd v The Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 Attorney-General (WA) v Marquet (2003) 217 CLR 545 Australian Boot Trade Employes Federation v Whybrow & Co (1910) 10 CLR 266 Beaumont v Yeomans (1934) 34 SR (NSW) 562 CDJ v VAJ (1998) 197 CLR 172 City of Geraldton v Cooling (2000) 101 IR 233 Colley v Futurebrand FHA Pty Ltd (2005) 63 NSWLR 291 David Grant & Co Pty Ltd v Westpac Banking Corp (1995) 184 CLR 265 Donovan v Repatriation Commission (1985) 58 ALR 634 Downey v Trans Waste Pty Ltd (1991) 172 CLR 167 Esber v The Commonwealth (1992) 174 CLR 430 Health Inspectors Association v Fremantle (1953) 76 CAR 32 Leon Fink Holdings Pty Ltd v Australian Film Commissioner (1979) 141 CLR 672 PMT Partners Pty Ltd (In Liquidation) v Australian National Parks & Wildlife Service (1995) 184 CLR 301 Robe River Iron Associates v FEDFU (1987) 67 WAIG 315 Rodway v The Queen (1990) 169 CLR 515 Worrall v Commercial Banking Company of Sydney Ltd (1917) 24 CLR 28

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT CITATION : BHP BILLITON IRON ORE PTY LTD -v- CONSTRUCTION, FORESTRY, MINING & ENERGY UNION OF WORKERS & ANOR [2006] WASCA 49 (S) CORAM : WHEELER J

PULLIN J
LE MIERE J

HEARD : 1 & 2 NOVEMBER 2005, 7 APRIL 2006 DELIVERED : 29 MARCH 2006 SUPPLEMENTARY
DECISION : 17 MAY 2006 FILE NO/S : IAC 5 of 2005 BETWEEN : BHP BILLITON IRON ORE PTY LTD

Appellant

AND

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION OF WORKERS
First Respondent

INTEGRATED GROUP LTD t/as INTEGRATED WORKFORCE
Second Respondent

FILE NO/S : IAC 6 of 2005 BETWEEN : CONSTRUCTION, FORESTRY, MINING & ENERGY UNION OF WORKERS

Appellant

AND

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BHP BILLITON IRON ORE PTY LTD
First Respondent

INTEGRATED GROUP LTD t/as INTEGRATED WORKFORCE
Second Respondent

Catchwords:

Industrial law - Workplace Relations Amendment (Work Choices) Act 2005 (Cth) - Jurisdiction of Industrial Appeal Court

Legislation:

Acts Interpretation Act 1901 (Cth), s 8

Industrial Relations Act 1979 (WA), s 8, s 23, s 27, s 49, s 90(3)
Workplace Relations Act 1996 (Cth), s 4(1), s 6, s 16(1)
Workplace Relations Amendment (Work Choices) Act 2005 (Cth)
Workplace Relations Regulations 2006 (Cth), reg 4.55(1)

Result:

Orders made

Category: B

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Representation:

IAC 5 of 2005

Counsel:

Appellant : Mr H J Dixon SC & Ms G A Archer
First Respondent : Mr S Crawshaw SC, Mr A Slevin &
Mr D H Schapper
Second Respondent : Mr N D Ellery & Mr R L Hooker

Solicitors:

Appellant : Mallesons Stephen Jaques
First Respondent : Derek Schapper
Second Respondent : Corrs Chambers Westgarth

IAC 6 of 2005

Counsel:

Appellant : Mr S Crawshaw SC, Mr A Slevin &
Mr D H Schapper
First Respondent : Mr H J Dixon SC & Ms G A Archer
Second Respondent : Mr N D Ellery & Mr R L Hooker

Solicitors:

Appellant : Derek Schapper
First Respondent : Mallesons Stephen Jaques
Second Respondent : Corrs Chambers Westgarth

Case(s) referred to in judgment(s):

BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining & Energy Union of Workers & Anor [2006] WASCA 49
CFMEU v Hanssen [2005] 85 WAIG 1264
Commissioner of Inland Revenue v Maple & Co (Paris) Ltd [1908] AC 22
Maxwell v Murphy (1956) 96 CLR 261
Oceanic Life Ltd & Anor v Chief Commissioner of Stamp Duties (1999) 168 ALR 211
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Case(s) also cited:

Allesch v Maunz (2000) 203 CLR 172
Anthony Hordern & Sons Ltd v The Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1
Attorney-General (WA) v Marquet (2003) 217 CLR 545
Australian Boot Trade Employes Federation v Whybrow & Co (1910) 10 CLR 266
Beaumont v Yeomans (1934) 34 SR (NSW) 562
CDJ v VAJ (1998) 197 CLR 172
City of Geraldton v Cooling (2000) 101 IR 233
Colley v Futurebrand FHA Pty Ltd (2005) 63 NSWLR 291
David Grant & Co Pty Ltd v Westpac Banking Corp (1995) 184 CLR 265
Donovan v Repatriation Commission (1985) 58 ALR 634
Downey v Trans Waste Pty Ltd (1991) 172 CLR 167
Esber v The Commonwealth (1992) 174 CLR 430
Health Inspectors Association v Fremantle (1953) 76 CAR 32
Leon Fink Holdings Pty Ltd v Australian Film Commissioner (1979) 141 CLR 672
PMT Partners Pty Ltd (In Liquidation) v Australian National Parks & Wildlife Service (1995) 184 CLR 301
Robe River Iron Associates v FEDFU (1987) 67 WAIG 315
Rodway v The Queen (1990) 169 CLR 515
Worrall v Commercial Banking Company of Sydney Ltd (1917) 24 CLR 28

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1 WHEELER J: On 29 March 2006, this Court delivered reasons in this matter (BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining & Energy Union of Workers & Anor [2006] WASCA 49). On that day, counsel for the first respondent submitted that the Court was, however, unable to make any orders because of the recent amendments to the Workplace Relations Act 1996 (Cth) by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth). I refer to the principal Commonwealth Act, as amended, as the "WRA". On 7 April, the Court made directions for further submissions from the parties, which have now been received.

2 The first respondent's submissions were broadly as follows. Section 16(1) of the WRA now provides:

"(1) This Act is intended to apply to the exclusion of all of the following laws of a State or Territory so far as they would otherwise apply in relation to an employee or employer:

(a) a State or Territory industrial law …"

3 It is submitted that the Industrial Relations Act 1979 (WA) is included in the definition of a State or Territory industrial law, and by s 6 of the WRA "employer" means "a constitutional corporation, so far as it employs, or usually employs, an individual". The simple submission is that, although there are certain exclusions from the scope of s 16(1), none applies to this case, so that the whole of the Industrial Relations Act, including Pt IV, is from 27 March 2006, excluded insofar as those provisions would otherwise apply in relation to the appellant. This Court is entirely a creature of that Act and the appellant's appeal is a statutory right created under the Industrial Relations Act. As a result of the exclusion, pursuant to s 16 of the WRA, it is submitted that all those provisions which create a Court and empower it to deal with the appellant's appeal are, by force of that provision, excluded. It is therefore submitted that the appellant cannot move for judgment and the Court cannot make any order in respect of the appeal.

4 In the alternative, the first respondent submits that the order which the Court considered should be made, that the case be remitted to Commissioner Wood for further hearing and determination, cannot be made, or would be futile. That is, as I understand it, because it is submitted that the power of the Commissioner which would be exercised on a remitter arises from s 23 and s 27 of the Industrial Relations Act, and those provisions are themselves excluded by reason of the WRA.

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5 There are a number of arguments which were directed to the submissions of the first respondent by the appellant and by the second respondent. In my view, it is necessary to deal only with one of them.

6 The appellant accepts that, were it not for the effect of certain other provisions of the WRA which modify the effect of s 16(1), that section would have the effect of preventing this Court from making any orders in relation to the appellant. However, the appellant submits that there are certain exceptions from the scope of s 16(1) which are relevant for the purposes of the present appeal. I deal only with one exception.

7 By way of legislative context, the appellant refers to the well-known common law presumption that legislation is not to be construed as taking away existing rights, unless the contrary intention is shown with reasonable certainty (Maxwell v Murphy (1956) 96 CLR 261 at 267). It points out that the filing of an appeal, pursuant to s 90 of the Industrial Relations Act, gave rise to a legally enforceable right in the appellant to have this Court hear and determine the appeal according to law. That right would, of course, ordinarily extend to having this Court make such orders as it considered appropriate pursuant to the Industrial Relations Act, including the exercise by this Court as appropriate of the powers conferred, pursuant to s 90(3) of the Industrial Relations Act, to "confirm, reverse, vary, amend ... or quash the decision the subject of appeal and [to] remit the matter to ... the Commission ... for further hearing and determination according to law".

8 Not only are the accrued rights, pursuant to s 90 of the Industrial Relations Act, not excluded by s 16(1) of the WRA, the appellant submits, but the WRA expressly preserves them. Section 16(2)(b) of the WRA provides that s 16(1) does not apply to a law of a State that is prescribed by the Workplace Regulations 2006 ("the regulations") as a law to which that subsection does not apply. The appellant then refers to reg 4.55 of the regulations which relevantly provides:

"(1) Subject to sub-regulation (2), ... subsection 16(1) of the Act does not apply to a law of a State or Territory that allows or otherwise relates to an appeal to a State industrial authority against a decision to make or vary a State award ... " (Emphasis supplied)

9 By reason of s 4(1) of the WRA, the decision of Commissioner Wood at first instance was a "State award". Sub-regulation (1) of reg 4.55 ceases to apply six months after the
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commencement of the WRA, so that the Industrial Relations Act is not excluded in its operation, it is submitted, until six months after 27 March 2006, being the relevant date of commencement.

10 A "State industrial authority", referred to in reg 4.55, relevantly means a board or court of conciliation or arbitration, or tribunal, body or persons, having authority under a State Act to exercise any power of conciliation or arbitration in relation to industrial disputes within the limits of the State. The first respondent submits that the Full Bench of the Western Australian Industrial Relations Commission is not a State industrial authority when exercising jurisdiction pursuant to s 49 of the Industrial Relations Act. However, in my view, this submission must be rejected.

11 A perusal of the Industrial Relations Act reveals a variety of powers directed to conciliation and arbitration in relation to industrial disputes within the limits of the State (and see CFMEU v Hanssen [2005] 85 WAIG 1264 at [39]). The body constituted by the Act is the Western Australian Industrial Relations Commission (see s 8). The Full Bench is not a separate entity; rather, the "Full Bench" is defined as "the Commission constituted as provided by section 15(1)" (see s 7(1)). The definition in s 4(1) of the WRA, to which I have referred, identifies a State industrial authority by reference to its creation as a body having authority under a State Act, to exercise particular powers, regardless of whether those powers are being exercised at the relevant time; that is, the WRA looks to the body as a whole, and not to the powers the body is exercising on any particular occasion. The Full Bench is one aspect of a body to which s 4(1) of the WRA refers.

12 Even if s 4(1) of the WRA required attention to be directed to the particular powers which the Full Bench is able to exercise, pursuant to s 49 of the Industrial Relations Act, the Full Bench has powers not only to dismiss or uphold an appeal, or to remit it for further consideration, but also to vary a decision so as to make an order "in terms which could have been awarded by the Commission that gave that decision" (s 49(6)); that is, as is often the case with appellate bodies, the Full Bench has power to exercise those powers which could have been exercised at first instance.

13 Returning, then, to reg 4.55, the width of the expression "relates to" has often been noted. In Oceanic Life Ltd & Anor v Chief Commissioner of Stamp Duties (1999) 168 ALR 211, Fitzgerald JA collected at [56] a number of observations upon the expression "relating to", which is relevantly identical. In Commissioner of Inland Revenue v Maple & Co

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(Paris) Ltd [1908] AC 22 at 26, Lord MacNaghten observed that "there is no expression more general or far-reaching" than the phrase "relating to". It is necessary, therefore, to look to the statutory context and purpose in order to give content to the expression "relates to" in reg 4.55.

14 That context, as I have noted, includes the common law presumption against the removal of vested rights, including rights to appeal, and a statutory context in which s 8 of Acts Interpretation Act 1901 (Cth) expressly preserves such rights in the case of a Commonwealth Act being repealed by a later Commonwealth Act. In my view, the expression "relates to" in reg 4.55 should be understood as providing that s 16(1) does not apply to the Industrial Relations Act to the extent that the latter Act permits this Court to review, upon the grounds set out in s 90 of that Act, the correctness of a decision of the Full Bench of the Western Australian Industrial Relations Commission. The power conferred by s 90 includes the power to determine whether there was error in the decision of the Full Bench and, where there is error, to make such orders as should have been made by it. This Court, therefore, has power to make orders on the appeal, notwithstanding s 16(1) of the WRA.

15 So far as the remitter to Commissioner Wood is concerned, it should be observed that it is a normal and usual incident of appellate jurisdiction that an appellate court has power to remit matters to a decision-maker at first instance, where appropriate. The orders proposed by this Court include an order of that kind, varying the orders of the Full Bench by providing that the matter be remitted to Commissioner Wood. Although, once the matter is remitted, the powers which Commissioner Wood would be exercising would be those powers which the Industrial Relations Act directly confers upon the Commission, the powers would be exercised pursuant to, and for giving proper effect to, the orders of the Full Bench, as varied by this Court, pursuant to s 90 of the Industrial Relations Act. That section is, as I have already explained, a law of the kind referred to in reg 4.55. This Court is, in effect, providing the order which should have been made on the original appeal from Commissioner Wood.

16 In my view, the exception which reg 4.55 provides must be understood as having operation not only in relation to the formal orders of this Court, which plainly "relate to" the appeal to the Full Bench, but also in relation to whatever provisions in the State law may be necessary to give effect to those orders. To hold otherwise would give rise to the absurd result that this Court could, by reason of reg 4.55, order a remitter which would be incapable of being given any effect. For that reason, I would conclude that the partial exclusion of the Industrial Relations Act,

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pursuant to s 16(1) of the WRA and regulations, does not operate so as to exclude the powers which would fall to be exercised by Commissioner Wood pursuant to the orders proposed by this Court.

Conclusion

17 Notwithstanding s 16(1) of the WRA, it is open to the Court to make the orders described in [127] of the reasons for decision [2006] WASCA 49. I would therefore make those orders.

18 PULLIN J: I have read the draft reasons prepared by Wheeler JA. I agree with those reasons and have nothing to add.

19 LE MIERE J: On 29 March 2006 this Court delivered its reasons for decision in this matter: BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining & Energy Union of Workers & Anor [2006] WASCA 49. The first respondent submitted that by reason of the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) ("Work Choices Act") coming into effect on 27 March 2006, this Court cannot now make any order on this appeal. The first respondent submitted that Sch 1, s 9 of the Work Choices Act provides that the Workplace Relations Act 1996 (Cth) (the "WRA") is intended to apply to the exclusion of specified laws of a State or Territory. The first respondent submitted that the specified laws include the Industrial Relations Act 1979 (WA) ("the Act"), under which the appeal is brought and under which this Court is constituted. The first respondent submits that by reason of those matters this Court cannot now make any order on this appeal.

20 The first respondent submits, in the alternative, that if this Court has power to make orders on the appeal the Western Australian Industrial Relations Commission ("the Commission") does not have jurisdiction to further hear the matter and hence this Court should not make an order varying the order of the Full Bench so as to remit the matter to the Commission for further hearing. That is because s 16(1) of the WRA excludes the jurisdiction of the Commission by excluding the Act in so far as it would otherwise apply in relation to the appellant and the respondents.

21 I have had the advantage of reading in draft the reasons of Wheeler J. I respectfully agree with her Honour that this Court does have the power to make orders on the appeal, notwithstanding s 16(1) of the WRA for the reasons given by her Honour. However, I have the misfortune to differ from her Honour in relation to the jurisdiction of the Commission to

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further hear the matter and its power to make further orders after the order of the Full Bench is varied so as to remit the matter to the Commission for further hearing.

22 The jurisdiction and power of the Commission to hear and determine the remitted matter derives not from the order of this Court but from the provisions of the Act, and in particular s 23 of the Act which confers on the Commission jurisdiction to enquire into and deal with any industrial matter. The Commission has such jurisdiction as is vested in it by laws made by the Parliament of Western Australia. The jurisdiction of the Commission to enquire into and deal with the industrial matter constituted by the dispute between the appellant and the first respondent has been removed by the Work Choices Act. This Court cannot confer on the Commission jurisdiction which does not exist independently of the order of the Court any more than this Court can confer jurisdiction on any other body.

23 The appellant submits that the Commission has jurisdiction to further hear the matter on remittal and to make orders by reason of the Workplace Relations Regulations 2006 (Cth), reg 4.55(1) which provides:

"Subject to subregulation (2) for paragraphs 16(2)(b) of the [Workplace Relations] Act, subsection 16(1) of the Act does not apply to a law of a State or Territory that allows or otherwise relates to an appeal to a State industrial authority against a decision to make or vary a State award, including a decision under which an employer, employee or industrial association becomes bound or ceases to be bound by the State award."

24 Section 23 of the Act is not a law that allows or otherwise relates to an appeal to a State industrial authority against the decision to make or vary a State award. As such, s 16(2)(b) and reg 4.55(1) do not prevent the application of s 16(1) of the WRA to s 23 of the Act. Rather, s 16(1) of the WRA excludes s 23 of the Act in so far as it would otherwise confer jurisdiction and power on the Commission to enquire into and deal with the industrial matter between the appellant and the first respondent.

Conclusion

25 If the Commission does not have jurisdiction to further hear the matter then this Court should not vary the order of the Full Bench so as to provide for the matter to be remitted to the Commission for further hearing. This Court should consider whether to remit the matter to the Full Bench for further hearing and determination according to law or

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whether to vary the decision of the Full Bench in some other way. However, as the majority of the Court have concluded that it is open to the Court to make the orders described in par 127 of the reasons for decision in [2006] WASCA 49, it is not necessary for me to consider the orders which the Court should make if the Commission does not have the jurisdiction or power to further deal with the matter on remittal.