BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers
[2006] WASCA 49
•29 MARCH 2006
BHP BILLITON IRON ORE PTY LTD -v- CONSTRUCTION, FORESTRY, MINING & ENERGY UNION OF WORKERS & ANOR [2006] WASCA 49
| WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT | Citation No: | [2006] WASCA 49 | |
| Case No: | IAC:5/2005 | 1 & 2 NOVEMBER 2005 | |
| Coram: | WHEELER J PULLIN J LE MIERE J | 29/03/06 | |
| 39 | Judgment Part: | 1 of 1 | |
| Result: | Appeal IAC 5 of 2005 allowed Appeal IAC 6 of 2005 dismissed | ||
| B | |||
| PDF Version |
| Parties: | BHP BILLITON IRON ORE PTY LTD CONSTRUCTION, FORESTRY, MINING & ENERGY UNION OF WORKERS INTEGRATED GROUP LTD t/as INTEGRATED WORKFORCE |
Catchwords: | Industrial law Unfair refusal to employ Denial of procedural fairness and right to be heard Jurisdiction of Full Bench of Industrial Relations Commission Validity of order to retrospectively employ Whether contract of employment between worker and labour hire company client Jurisdiction of Industrial Appeal Court Construction of Industrial Relations Act 1979 (WA) definitions of "employee" and "employer" |
Legislation: | Drugs Poisons & Controlled Substances Act 1981 (Vic), s 73 Industrial Relations Act 1979 (WA), s 23A, s 26, s 35, s 39, s 44, s 49, s 90 Labour Relations Reform Act 2002 (WA) Long Service Leave Act 1958 (WA) |
Case References: | Blackadder v Ramsey Butchering Services Pty Ltd (2005) 79 ALJR 975 Board of Management, Princess Margaret Hospital for Children v Hospital Salaried Officers Association of Western Australia (Union of Workers) (1975) WAIG 543 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 Hope v Bathurst City Council (1980) 144 CLR 1 Monaco v Arnedo Pty Ltd, unreported; FCt SCt of WA; Library No 940481; 6 September 1994 Pantorno v The Queen (1989) 166 CLR 466 Personnel Contracting Pty Ltd t/as Tricord Personnel v Construction, Forestry, Mining and Energy Union of Workers [2004] WASCA 312 Re Australian Railways Union; Ex Parte Public Transport Corporation (1993) 117 ALR 17 RGC Mineral Sands v Construction, Mining, Energy, Timberyards, Sawmills, Woodworkers Union of Australia WA Branch (2000) 80 WAIG 2438 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 Stead v State Government Insurance Commission (1986) 161 CLR 141 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 United Construction Pty Ltd v Birighitti [2003] WASCA 24 Vetter v Lake Macquarie City Council (2001) 202 CLR 439 Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 Allesch v Maunz (2000) 203 CLR 172 Alman v Unwin [1983] WAR 157 Australasian Meat Industry Employees' Union v Sunland Enterprises Pty Ltd (1988) 24 IR 467 Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 Brook Street Bureau v Dacas [2004] EWCA CIV 217 Building Workers' Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104 Burnie Port Authority v MUA (2000) 103 IR 153 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 CFMEUW v Hanssen (2005) 85 WAIG 1264 Coal & Allied Operations Pty Ltd v The Australian Industrial Relations Commission (2000) 203 CLR 194 Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 Construction, Forestry, Mining & Energy Union (New South Wales Branch) v Newcrest Mining Ltd (2005) 139 IR 50 Construction, Forestry, Mining & Energy Union of Workers v Hanssen Pty Ltd (2000) WAIRC 00418 Craig v The State of South Australia (1995) 184 CLR 163 Damevski v Guidice (2003) 133 FCR 438 Doyle v Sydney Steel Co Ltd (1936) 56 CLR 545 Forstaff v The Chief Commissioner of State Revenue [2004] NSWSC 573 Kioa v West (1985) 159 CLR 550 Kwinana Construction Group Pty Ltd v Electrical Trades Union of Workers (1954) 34 WAIG 51 Linehan v Northwest Exports Pty Ltd (1981) 57 FLR 49 Massey v Crown Life Insurance Co [1978] 1 WLR 676 Mead v New England Seed Trader Pty Ltd [1972] 46 WCR (NSW) 113 Morgan v Kittochside Nominees Pty Ltd (2002) 117 IR 152 Narich Pty Ltd v Commissioner of Pay-roll Tax [1983] 2 NSWLR 597 Nguyen v ANT Contract Packers Pty Ltd (t/as ANT Personnel) (2003) 128 IR 241 Pitcher v Langford (1991) 23 NSWLR 142 R v Foster; Ex Parte The Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138 Robe River Associates v Amalgamated Metal Workers & Shipwrights Union of Western Australia (1990) 70 WAIG 2083 Serco (Australia) Pty Ltd v Moreno (1996) 76 WAIG 937 Swift Placements Pty Ltd v Work Cover Authority of NSW (2000) 96 IR 69 The Roy Morgan Research Centre Pty Ltd v The Commissioner of State Revenue (1997) 37 ATR 528 |
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 CORAM : WHEELER J
- PULLIN J
LE MIERE J
- Appellant
AND
CONSTRUCTION, FORESTRY, MINING & ENERGY UNION OF WORKERS
First Respondent
INTEGRATED GROUP LTD t/as INTEGRATED WORKFORCE
Second Respondent
- Appellant
AND
BHP BILLITON IRON ORE PTY LTD
First Respondent
INTEGRATED GROUP LTD t/as INTEGRATED WORKFORCE
Second Respondent
ON APPEAL FROM:
Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Coram : SHARKEY P, BEECH CC, KENNER C
Citation : [2005] WAIRC 01797
File No : FBA 36 of 2004
Catchwords:
Industrial law - Unfair refusal to employ - Denial of procedural fairness and right to be heard - Jurisdiction of Full Bench of Industrial Relations Commission - Validity of order to retrospectively employ - Whether contract of employment between worker and labour hire company client - Jurisdiction of Industrial Appeal Court - Construction of Industrial Relations Act 1979 (WA) definitions of "employee" and "employer"
Legislation:
Drugs Poisons & Controlled Substances Act 1981 (Vic), s 73
Industrial Relations Act 1979 (WA), s 23A, s 26, s 35, s 39, s 44, s 49, s 90
Labour Relations Reform Act 2002 (WA)
Long Service Leave Act 1958 (WA)
Result:
Appeal IAC 5 of 2005 allowed
Appeal IAC 6 of 2005 dismissed
(Page 3)
Category: B
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
Second Respondent : Mr N D Ellery
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
First Respondent : Mr H J Dixon SC & Ms G A Archer
Second Respondent : Mr N D Ellery
Solicitors:
Appellant : Derek Schapper
First Respondent : Mallesons Stephen Jaques
Second Respondent : Corrs Chambers Westgarth
Case(s) referred to in judgment(s):
Blackadder v Ramsey Butchering Services Pty Ltd (2005) 79 ALJR 975
Board of Management, Princess Margaret Hospital for Children v Hospital Salaried Officers Association of Western Australia (Union of Workers) (1975) WAIG 543
Hollis v Vabu Pty Ltd (2001) 207 CLR 21
Hope v Bathurst City Council (1980) 144 CLR 1
(Page 4)
Monaco v Arnedo Pty Ltd, unreported; FCt SCt of WA; Library No 940481; 6 September 1994
Pantorno v The Queen (1989) 166 CLR 466
Personnel Contracting Pty Ltd t/as Tricord Personnel v Construction, Forestry, Mining and Energy Union of Workers [2004] WASCA 312
Re Australian Railways Union; Ex Parte Public Transport Corporation (1993) 117 ALR 17
RGC Mineral Sands v Construction, Mining, Energy, Timberyards, Sawmills, Woodworkers Union of Australia WA Branch (2000) 80 WAIG 2438
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
Stead v State Government Insurance Commission (1986) 161 CLR 141
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483
United Construction Pty Ltd v Birighitti [2003] WASCA 24
Vetter v Lake Macquarie City Council (2001) 202 CLR 439
Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547
Case(s) also cited:
Allesch v Maunz (2000) 203 CLR 172
Alman v Unwin [1983] WAR 157
Australasian Meat Industry Employees' Union v Sunland Enterprises Pty Ltd (1988) 24 IR 467
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300
Brook Street Bureau v Dacas [2004] EWCA CIV 217
Building Workers' Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104
Burnie Port Authority v MUA (2000) 103 IR 153
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
CFMEUW v Hanssen (2005) 85 WAIG 1264
Coal & Allied Operations Pty Ltd v The Australian Industrial Relations Commission (2000) 203 CLR 194
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
Construction, Forestry, Mining & Energy Union (New South Wales Branch) v Newcrest Mining Ltd (2005) 139 IR 50
Construction, Forestry, Mining & Energy Union of Workers v Hanssen Pty Ltd (2000) WAIRC 00418
Craig v The State of South Australia (1995) 184 CLR 163
Damevski v Guidice (2003) 133 FCR 438
Doyle v Sydney Steel Co Ltd (1936) 56 CLR 545
Forstaff v The Chief Commissioner of State Revenue [2004] NSWSC 573
(Page 5)
Kioa v West (1985) 159 CLR 550
Kwinana Construction Group Pty Ltd v Electrical Trades Union of Workers (1954) 34 WAIG 51
Linehan v Northwest Exports Pty Ltd (1981) 57 FLR 49
Massey v Crown Life Insurance Co [1978] 1 WLR 676
Mead v New England Seed Trader Pty Ltd [1972] 46 WCR (NSW) 113
Morgan v Kittochside Nominees Pty Ltd (2002) 117 IR 152
Narich Pty Ltd v Commissioner of Pay-roll Tax [1983] 2 NSWLR 597
Nguyen v ANT Contract Packers Pty Ltd (t/as ANT Personnel) (2003) 128 IR 241
Pitcher v Langford (1991) 23 NSWLR 142
R v Foster; Ex Parte The Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138
Robe River Associates v Amalgamated Metal Workers & Shipwrights Union of Western Australia (1990) 70 WAIG 2083
Serco (Australia) Pty Ltd v Moreno (1996) 76 WAIG 937
Swift Placements Pty Ltd v Work Cover Authority of NSW (2000) 96 IR 69
The Roy Morgan Research Centre Pty Ltd v The Commissioner of State Revenue (1997) 37 ATR 528
(Page 6)
1 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Le Miere J. I agree with those reasons and have nothing to add.
2 PULLIN J: In my opinion, Commissioner Wood's decision to dismiss the application by the Union was correct. I have also concluded that the Full Bench erred in overturning the Commissioner's decision.
3 In relation to IAC 5 of 2005, I agree with Le Miere J that ground 1 should be dismissed for the reasons given by his Honour. I also agree that it is not necessary to say anything about ground 2.
4 As to ground 3, it is clear that the parties had agreed, at the hearing before the Full Bench, that if the ground of appeal alleging unfair refusal to employ was made out, that the matter should be remitted to the Commission for further hearing. The evidence of incidents which had occurred in mid-December 2004 and mid-February 2005 were material events which, if proven, might have led the Commission to the view that it was inappropriate for it to order that BHP Billiton Iron Ore Pty Ltd ("BHPB") employ Mr Brandis. The Full Bench denied BHPB the right to be heard in relation to whether the matter should be remitted to hear evidence concerning the incidents. In my opinion, the appropriate order is that the matter be remitted to the Commission to hear and determine whether BHPB should be ordered to employ Mr Brandis.
5 I agree that ground 4 in IAC 5 should succeed for the reasons given by Le Miere J and that par 2 of the order made by the Full Bench should be set aside.
6 I agree with Le Miere J that the appeal by the Union in IAC 6 should be dismissed for the reasons that he has given.
7 I agree with the orders proposed by Le Miere J.
LE MIERE J:
Introduction
8 Gregory Brandis was employed by BHP Billiton Iron Ore Pty Ltd ("BHPB") and its predecessors as a locomotive engine driver for approximately 22 years until 1999 when he was voluntarily made redundant. In 2001 Mr Brandis applied for employment with Integrated Group Ltd t/as Integrated Workforce ("IW") because he knew they were supplying contract drivers to BHPB. On 18 June 2001 IW presented to
(Page 7)
Mr Brandis an Australian Workplace Agreement ("AWA") relating to employment with IW as a locomotive driver. Mr Brandis subsequently underwent a training course conducted by BHPB's training officer and then commenced work as a locomotive engine driver at BHPB's Headland yard and on the Newman mainline. Mr Brandis continued work as a locomotive engine driver for BHPB until the hearing of his claim by the Western Australian Industrial Relations Commission ("the Commission") to which I will shortly refer.
9 After Mr Brandis had commenced employment with IW he applied for advertised positions with BHPB, as a direct employee, on four occasions, the last being on 24 January 2004. On that occasion he was short listed and went through a selection process but was not successful.
Dispute referred for hearing
10 On 10 June 2004 the Construction, Forestry Mining and Energy Union of Workers ("the Union") applied to the Commission for a conference pursuant to s 44 of the Industrial Relations Act 1979 ("the Act"). The application was made on the following grounds:
"[BHPB] unreasonably refuses to employ Greg Brandis as an engine driver. Brandis had previously worked as an engine driver for BHPB for some years and more recently and currently for some years as by way of a labour hire company. Brandis has recently applied for direct employment with [BHPB] which refuses to employ him."
11 IW was subsequently joined as a second respondent. The conference was unsuccessful and the Commission proceeded to hear and determine the dispute. The memorandum referring the dispute for hearing stated, among other things:
"In January 2004 BHPB advertised for applications to be made to it for employment as rail transport technicians to drive locomotives on its railways in the Pilbara. Mr Brandis applied for one of these positions and underwent pre-employment interviews, psychological testing and reference checks. Mr Brandis' application was refused, as was the subsequent application by him.
[The Union] alleges that:
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- 1. during the time that Mr Brandis has been employed by [IW] to work at BHPB he has also been employed jointly by BHPB. This is by reason of the fact that throughout that time Mr Brandis has, in all material respects, been directed and supervised by BHPB; and
2. BHPB have unreasonably refused to employ Mr Brandis.
[The Union] claims:
1. a declaration that Mr Brandis has been and is employed by BHPB as an engine driver; and
2. an order that BHPB employ Mr Brandis on the award."
Decision of Commissioner
12 The Commissioner stated that the key issues were whether it was unfair for BHPB to refuse to employ Mr Brandis and whether Mr Brandis was jointly employed by BHPB and IW. The Commissioner reviewed the evidence concerning BHPB's failure to employ Mr Brandis. The Commissioner stated that it could be assumed on the evidence that Mr Brandis had driven trains on the BHPB rail network for the previous three and more years without incident except for a breach of safety rules and regulations in August 2002. That incident resulted in a disciplinary enquiry which found that Mr Brandis had overridden the Automatic Train Protection System ("ATP") on ten occasions without authority, had gone past mode 3 whilst it was set at stop and had knowingly breached operating procedures. The enquiry found the incidents to amount to a very serious breach of BHPB rules, operating procedures and operating notices but that based on his previous good record and Mr Brandis' frank admission about what had occurred a formal warning and suspension of Mr Brandis' next tour from 16 September 2002 to 27 September 2002 would be an adequate consequence.
13 The Commissioner considered the evidence relating to the selection process arising from Mr Brandis' application of January 2004. The selection panel deemed Mr Brandis not suitable. Mr Brandis scored poorly on the psychometric tests and was unsupported by his referees. The Commissioner found that the selection panel was entitled to conclude as they did. The selection process itself was fair. The Commissioner stated that to make a case for unfair refusal to employ, the applicant has to pass a relatively high hurdle to warrant the intervention of the Commission so as to order the employer to recruit a particular person. It
(Page 9)
- was not sufficient that Mr Brandis was an experienced and competent driver of long standing. The company was entitled to structure its work force according to its needs. The Commissioner found that BHPB had not unfairly or unreasonably refused to employ Mr Brandis.
14 The Commissioner then went on to consider the Union's case that Mr Brandis was jointly employed by BHPB and IW. The Commissioner made a number of findings. One finding was that Mr Brandis had an express contract of employment in the form of an AWA with IW. The Commissioner considered the submissions of the parties concerning joint employment and relevant authorities referred to the Commissioner. The Commissioner concluded that Mr Brandis and BHPB had not sought by their conduct to establish the necessary mutuality of obligation. The control exercised by BHPB over Mr Brandis must be seen in the light of the nature of Mr Brandis' employment, BHPB's rail system and the detailed obligations imposed upon them by the Mines Safety and Inspection Act 1984 (WA). The Commissioner concluded that Mr Brandis had not formed an implied contract of service with BHPB. The Commissioner dismissed the Union's application.
Union appeal to Full Bench
15 The Union appealed from the decision of the Commissioner to the Full Bench. The first and second grounds of appeal were that the Commission ought to have held that there was a contract of employment between Mr Brandis and BHPB and IW jointly or alternatively with BHPB and that the Commission ought to have required BHPB to employ Mr Brandis on the award. The third ground of appeal was that the Commission erred in holding that the refusal of BHPB to employ Mr Brandis was not unfair. The Union sought in lieu of the orders of the Commission an order that BHPB employ Mr Brandis on a contract of employment to which the award applies.
16 BHPB applied to the Full Bench to adduce fresh evidence. In his reasons for decision the President said that the evidence sought to be adduced was contained in an affidavit sworn on 14 March 2005 by Mr Ritchie, BHPB's manager of employee relations. Mr Ritchie's evidence was that on or about 15 February 2005 IW ceased providing Mr Brandis' services to BHPB pursuant to its contract with BHPB and further that as and from 8 March 2005 Mr Brandis was no longer employed by IW. The President characterised that evidence as merely more evidence of acts by BHPB and IW purporting to be authorised by the contracts which they say exist and existed. Unilateral acts by IW after
(Page 10)
- the matter was determined at first instance and sought to be used by BHPB and IW in affirmation of their cases was not a matter going to the merit of the proceedings at first instance. Those events, the President held, did not in any way falsify or affect the correctness or otherwise of the Commissioner's finding. Further, the evidence was not relevant to the question of remedy. For those reasons the President agreed with the other members of the Full Bench to dismiss the application to adduce that evidence.
17 The President reviewed the evidence and the findings of the Commission and the relevant law concerning whether there was an implied contract of employment between Mr Brandis and BHPB. The President concluded that Mr Brandis was, at all material times, an employee of BHPB by virtue of an implied contract between them. Alternatively, the President found that Mr Brandis was, at all material times, an employee jointly of BHPB and IW, with both parties responsible for the discharge of some obligations to him and to each other and the enjoyment of certain benefits due to the contract between them. The President then found that because that was so, Mr Brandis was not required to apply for permanent employment, being already a permanent or continuing employee.
18 The President went on to consider the appeal against the finding that the refusal to employ Mr Brandis was not unfair. The President noted that Mr Brandis was not selected for the position for three reasons. The first reason was that he had a poor safety record. The second reason was that his referees held poor or ambiguous opinions of him. Thirdly, the result of the psychometric test was unfavourable. The President found that it was unfair to refuse to employ Mr Brandis because of his safety record. The President found that it was wrong and unfair of BHPB to rely on the references as bases for refusal to employ Mr Brandis. The President found that the selection process was unfair in that it allowed a psychometric assessment to overrule the objective facts and constitute part of the reasons for refusing to employ him.
19 The President found that the Commissioner erred in holding that it was reasonably open to BHPB to come to the decision not to employ Mr Brandis because the reasons for refusing to employ him were without merit. The President found that the decision not to employ Mr Brandis was made ineptly or unfairly and an injustice was done to him. Alternatively, it was made with ill will for Mr Brandis, perhaps relating to his propensity to stand up for his rights. The President found that the Commissioner should have found that Mr Brandis was, applying
(Page 11)
- par 26(1)(a) of the Act, and having regard to par 26(1)(c), treated unfairly and that such unfairness must be remedied. The exercise of the Commissioner's discretion miscarried because the Commissioner mistook the facts and allowed some irrelevant matters to guide him whilst not taking account of some relevant matters. The exercise of the Commissioner's discretion having miscarried, the Full Bench was entitled to substitute the exercise of its own discretion for the exercise of the discretion of the Commission at first instance.
20 The President found further and alternatively that Mr Brandis was, at all material times, an employee of BHPB and he therefore did not have to apply for a job which he already held, and the selection process was invalid and irrelevant to his employment situation.
21 The President found that the Full Bench should exercise its discretion to order that Mr Brandis continue to be employed as and from 7 May 2004 and declare that the award applied to Mr Brandis' employment at all material times. 7 May 2004 was the date when Mr Brandis' application for employment was refused.
22 Chief Commissioner Beech found that the Commissioner had not erred in holding that Mr Brandis was not employed by BHPB and did not consider that the grounds of appeal to that effect, that is grounds 1 and 2, had been made out. The Chief Commissioner stated that he had read in draft the reasons for decision of the President in relation to ground 3, that is that the Commission erred in holding that the refusal of BHPB to employ Brandis was not unfair, and agreed with the order proposed by the President.
23 Commissioner Kenner found that there was no contract of service between BHPB and Mr Brandis and did not uphold the grounds of appeal to the effect that there was. Commissioner Kenner then considered the ground of appeal that the Commissioner erred in holding that the refusal of BHPB to employ Mr Brandis was unfair. Kenner C found that the Commissioner had misdirected himself as to the proper question to be asked in relation to that issue. It was not whether on the facts the decision to not employ Mr Brandis was reasonably open, nor was there any necessity for a "relatively high hurdle" to be surmounted to persuade the Commission in favour of the appellant's claim. What was required was a consideration of whether, in all of the circumstances of the case, as a matter of equity, good conscience and the substantial merits of the case under par 26(1)(a) of the Act, it was industrially unfair for BHPB to refuse to employ Mr Brandis. Kenner C agreed with the reasons
(Page 12)
- expressed by the President that in all of the circumstances of the case it was unfair for BHPB to refuse to employ Mr Brandis. In particular, Kenner C found BHPB's reliance upon the psychometric test undertaken by Mr Brandis and the psychological assessment was unfair.
24 The order made by the Full Bench was that the decision of the Commission be varied by deleting the order to dismiss the application and substituting the following declaration and order:
"(1) That [BHPB] did unfairly refuse to employ Gregory James Brandis as a locomotive driver on a continuing and indefinite basis in position number V56084 rail transport technician, as and from 7 May 2004.
(2) that [BHPB] do employ the said Gregory James Brandis in position number V56084 rail transport technician as and from 7 May 2004."
Appeals to this Court
25 There are two appeals to this Court. In IAC 5 of 2005 BHPB is the appellant, the Union is the first respondent and IW is the second respondent. In IAC 6 of 2005 the Union is the appellant, BHPB is the first respondent and IW is the second respondent. In each appeal IW adopted the submissions of BHPB.
26 In IAC 5 of 2005 BHPB advanced five grounds of appeal. I will consider those grounds of appeal before considering the appeal by the Union in IAC 6 of 2005.
Ground 1
27 Ground 1 is that the Full Bench determined the question of whether the Commission at first instance erred in respect of the claim that BHPB had unfairly refused to employ Mr Brandis and should be ordered to employ him on, amongst other things, an assumed and erroneous basis concerning the true legal relationship between:
(a) Mr Brandis and IW;
(b) BHPB and IW; and
(c) BHPB and Mr Brandis,
- which was not raised or relied upon by any party in the proceedings and in respect of which BHPB was denied procedural fairness and the right to be heard.
(Page 13)
28 This ground arises from findings made by the President concerning the AWA or AWAs between Mr Brandis and IW and the services contract between BHPB and IW by which IW was to provide locomotive engine drivers as required by BHPB. Mr Dixon SC, senior counsel for BHPB, submitted, and Mr Crawshaw SC, senior counsel for the Union, conceded, that it was common ground between the parties before the Commission and before the Full Bench that at all material times there was an operative contract between BHPB and IW by which IW was to provide locomotive engine drivers as required by BHPB and at all material times there was an operative AWA between Mr Brandis and IW. It was further submitted by Mr Dixon SC and conceded by Mr Crawshaw SC that the case was presented by the Union before the Commission and the Full Bench and was determined at first instance by the Commission on that basis.
29 BHPB submits that contrary to the position accepted by the Commission at first instance and the parties, the President assumed, or proceeded to deal with the appeal to the Full Bench on the basis that, the services contract between BHPB and IW did not remain on foot beyond the end of June 2001 and Mr Brandis' employment with IW was not the subject of an AWA until October 2002.
30 BHPB submits that those findings were assumptions and the reasoning of the President based upon them formed an integral and critical part of the decision by the President to make the declaration and order made by the Full Bench. BHPB submits that despite expressing their own views to the contrary on the contractual and employment arrangements between the parties Beech CC and Kenner C expressly concurred with the reasoning and conclusions of the President in relation to ground 3 of the appeal to the Full Bench, that is the ground that the Commission erred in holding that the refusal of the first respondent to employ Mr Brandis was not unfair. BHPB argues that the assumptions or conclusions arrived at by the President were never raised with the parties and hence BHPB was denied the right to be heard. On that basis BHPB submits that it was denied the right to be heard and its appeal to this Court is competent by reason of par 90(1)(c) of the Act.
31 To succeed on this ground of appeal BHPB must establish four propositions. The first is that the assumptions or conclusions of the President that the BHPB – IW services contract did not remain on foot beyond the end of June 2001 and that Mr Brandis' employment with IW was not the subject of an AWA until October 2002 materially affected the President's decision that at all material times Mr Brandis was employed by BHPB or alternatively by BHPB and IW jointly. The second is that
(Page 14)
- BHPB was denied the right to be heard in relation to those assumptions or conclusions. The third is that the President's finding that at all material times Mr Brandis was employed by BHPB or alternatively by BHPB and IW jointly materially affected his decision that BHPB unfairly refused to employ Mr Brandis. The fourth is that the President's finding that Mr Brandis was at all material times employed by BHPB or jointly by BHPB and IW materially affected the decisions of Beech CC and Kenner C that BHPB unfairly refused to employ Mr Brandis.
Findings materially affected the President's decision on prior employment issue
32 As to the first proposition or step in the argument, I am satisfied that the findings of the President concerning the services contract and the AWAs materially affected the President's decision that at all material times Mr Brandis was employed by BHP or alternatively jointly by BHPB and IW (the prior employment issue).
BHPB was denied right to be heard
33 The second step is whether BHPB was denied the right to be heard in relation to those findings. Procedural fairness does not normally require a Judge to disclose his thinking processes or proposed conclusions. However, a party may be denied procedural fairness if a Judge departs from the basis upon which the case has been argued by the parties without notice to the parties.
34 The right to be heard includes a proper opportunity to present submissions seeking to persuade a court or tribunal that the evidence and inferences from it support or fail to support any fact necessary to be established. A restriction upon the opportunity afforded to one of the parties through their counsel to make submissions upon the facts that are said to be established by the evidence deprives a party of their right to be heard.
35 In Stead v State Government Insurance Commission (1986) 161 CLR 141, the plaintiff claimed damages for personal injury arising out of a motor vehicle accident. One of his claims was that the accident had caused a neurotic condition that had rendered him totally incapacitated for work. Dr Scanlon had given evidence on behalf of the defendant that there was no connection between the accident and the neurotic condition. In his closing address, the plaintiff's counsel submitted that the trial Judge should not accept the doctor's evidence. The Judge said: "I don't accept Dr Scanlon on that. You needn't go on as to that". Counsel did not then
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- pursue the matter. When the trial Judge delivered judgment, he accepted the doctor's evidence on the point in question. The High Court found that by stopping the plaintiff's counsel from addressing on the topic of Dr Scanlon's evidence, the Judge had deprived the plaintiff of an opportunity of presenting argument on a vital issue in the case and the plaintiff had thereby been denied procedural fairness.
36 In Pantorno v The Queen (1989) 166 CLR 466 the accused pleaded guilty to a charge of possession of a drug of dependence. Paragraph 73(1)(b) of the Drugs Poisons and Controlled Substances Act 1981 (Vic) prescribed a penalty for unlawful possession of a drug of dependence where the court is satisfied that the offence was not committed by the person for any purpose relating to trafficking in that drug, that penalty being less than the penalty prescribed by par (c) for unlawful possession of a drug of dependence in any other case. The accused's counsel told the Judge that the amount of the drug was very small and was for the accused's own use. He referred to par 73(1)(b) as prescribing the relevant penalty where it is not a traffickable [sic] amount, and said that the Crown "doesn't suggest for one moment that this is a trafficable amount". The prosecutor did not challenge this assertion and made no submissions about sentence. The Judge sentenced the accused under par 73(1)(c) on the basis that there was no evidence before him that the accused's possession of the drug was not for a purpose relating to trafficking. The High Court held that since the proceedings before the Judge had been conducted by the Crown and counsel for the accused on the footing that par 73(1)(b) applied it had not been open to the Judge to sentence under par 73(1)(c) without giving the accused's counsel an opportunity to show why the accused was not liable to the larger penalty prescribed by par 73(1)(c). At 473 Mason CJ and Brennan J said:
"When the parties to an adversarial proceeding agree on a proposition of law and conduct their cases on that basis, their agreement does not bind the trial judge. If the judge determines the law to be different, he may apply the law as he determines it to be, but he must inform the parties of the view he has formed when that is necessary to give them an opportunity to address new issues arising from the judge's departure from the proposition of law on which the case was conducted. Otherwise both parties are taken by surprise …"
37 At 474 Mason CJ and Brennan J said:
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- "Once it is accepted that the proceedings before the learned sentencing judge were conducted by the Crown and counsel for the applicant on the footing that s.73(1)(b) was the relevant provision of the statute, it follows that the judge was not entitled to sentence on the footing that s.73(1)(c) was the relevant provision without giving the applicant's counsel an opportunity to show why the applicant was not liable to the larger penalty prescribed by s.73(1)(c)."
38 The principle stated by Mason CJ and Brennan J in Pantorno v The Queen (supra) has been applied in many cases since including Monaco v Arnedo Pty Ltd, unreported; FCt SCt of WA; Library No 940481; 6 September 1994, Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 and Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208.
39 In this case, the President departed from the basis upon which the parties had conducted the case before the Commission at first instance and upon which the Commissioner had made his decision. The submissions of the parties before the Full Bench were predicated upon the continued existence of the services contract after 30 June 2001 and upon Mr Brandis' employment with IW having been the subject of an AWA at all material times. If BHPB had appreciated that the President might depart from those assumptions then it may have made submissions that there was evidence that the services contract remained on foot after 30 June 2001 and that Mr Brandis' employment with IW was at all material times the subject of an AWA or that the Commission at first instance was entitled to proceed on that basis because the parties had conducted the case on that basis. Further, BHPB may have sought to persuade the President that the Full Bench should not, or was not entitled to, depart from the assumptions upon which the parties conducted the case at first instance and upon which the Commissioner had made his decision. BHPB was denied an opportunity to put its case in relation to those matters. By not alerting the parties to the possibility that he might depart from the basis upon which the parties had conducted the case, the President failed to afford them a reasonable opportunity to put what ever case they might have wished to put in the circumstances. BHPB was denied the right to be heard in relation to that matter.
Impugned findings did not materially affect the President's decision on unfairness of refusal to employ
40 Not every departure from the rules of natural justice will necessitate a decision being set aside. In this case, BHPB must establish that the
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- findings by the President in relation to the services contract and the AWAs materially affected his conclusion that BHPB unfairly refused to employ Mr Brandis. This is the third essential step in BHPB's argument.
41 In his reasons for decision the President first dealt with grounds 1 and 2 of the appeal to the Full Bench, that is the grounds relating to the prior employment issue. The President commenced his consideration of ground 3, that is the unfair refusal to employ ground (that the Commission erred in holding that the refusal of BHPB to employ Mr Brandis was not unfair) at par 235 of his reasons. At par 245 the President said: "Of course, in considering this question, I put aside the fact that he was employed on a permanent basis". I take the President's statement that he put aside "the fact that he was employed on a permanent basis" to be a statement that in determining the question of whether BHPB had unfairly refused to employ Mr Brandis the President was putting aside his finding that at all material times BHPB had employed Mr Brandis as a permanent employee.
42 The President went on to consider the reasons given by the BHPB selection panel for not offering Mr Brandis permanent employment after his application. In par 282 the President found that the Commissioner at first instance erred in holding that it was reasonably open to BHPB to come to the decision not to employ Mr Brandis because BHPB's reasons for refusing to employ him were without merit. The President found that the selection system was unfair because Mr Brandis' application was rejected on invalid and implausible or improbable grounds. Further, the President found that the fact that Mr Brandis had worked on a continuing basis for the best part of three years and was deemed suitable to continue to work and to demonstrate the system to those who were selected instead of him was proof of a thorough unfairness of the process. The President found that the exercise of the Commissioner's discretion had miscarried because the Commissioner mistook the facts and allowed some irrelevant matters to guide him while not taking account of some relevant matters.
43 Mr Dixon SC submitted that the findings of the President concerning the services contract and the AWAs formed an integral and critical part of his decision to declare that BHPB unfairly refused to employ Mr Brandis and to order BHPB to do so. Mr Dixon pointed to a number of passages in the President's reasons for decision which he submitted demonstrated that the President had done so. In par 284, having held that the discretion of the Commissioner had miscarried the President said that the Full Bench should substitute the exercise of its discretion for the exercise of the discretion at first instance and that he would do so "relying on the findings
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- which I say should have been made at first instance, as well as any other relevant unchallenged findings". Mr Dixon SC submitted that "the findings which I say should have been made at first instance" include the finding that at all material times Mr Brandis was employed by BHPB or jointly by BHPB and IW. I do not agree. The findings which the President says should have been made at first instance are a reference to his findings concerning BHPB's reasons for refusing to employ Mr Brandis following his application for employment in January 2004.
44 At par 285 the President went on to say: "further and alternatively, Mr Brandis was, at all material times, an employee of BHPB. He patently therefore did not have to apply for a job which he already held, and the selection process was simply invalid and irrelevant to his employment situation". That paragraph comes after the President had concluded that BHPB had unfairly refused to employ Mr Brandis and that the President would exercise his discretion in substitution for that of the Commission at first instance. The President said in par 285, in effect, that Mr Brandis' application for a job and the whole selection process was irrelevant because Mr Brandis was already employed by BHPB. That fact did not form part of the President's reasons for finding that BHPB had unfairly refused to employ Mr Brandis.
45 In par 286 the President concluded that "for all those reasons" the Union had established that the exercise of the discretion at first instance miscarried" and that "the selection process was invalid and Mr Brandis should never have been required to apply for a position which he already held, namely an ongoing and continuous position as a locomotive driver and employee of BHPB". The President was there in effect repeating his earlier finding that the exercise of the discretion at first instance had miscarried but in any event the President had found that Mr Brandis had been employed by BHPB at all material times.
46 Mr Dixon SC submitted that the President adopted from the outset of his reasons a mindset which cannot be separated from the overall reasoning and outcome in the judgment. Mr Dixon SC submitted that the President made reference to the time when Mr Brandis was "purportedly" employed by IW. I accept the submission of Mr Crawshaw SC that the use of the word "purported" reflects the fact that this was a live issue in the proceedings but was not stated as a reason for finding that there was an unfair refusal to employ.
47 Mr Dixon SC made reference to a number of other passages in the reasons for decision of the President which he submitted demonstrated
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- that the President's findings concerning the services agreement and the AWAs formed an integral and critical part of his decision in relation to the unfair refusal to employ ground of appeal. I have read those passages carefully. After considering all of those passages in the context of the President's reasons as a whole I am not satisfied that the President's findings concerning the services contract and the AWAs materially affected his decision that BHPB unfairly refused to employ Mr Brandis.
Impugned findings did not materially affect decision of majority
48 There is a further reason why this ground of appeal does not succeed. BHPB must establish that the President's findings concerning the services contract and the AWA materially affected the decisions of Beech CC and Kenner C that BHPB unfairly refused to employ Mr Brandis.
49 Beech CC first considered the grounds of appeal that alleged the Commission erred in holding that there was not a contract of employment between Mr Brandis and BHPB. Beech CC undertook an extensive discussion and analysis of the facts and law relating to that issue and concluded, contrary to the conclusion of the President, that the Commission at first instance had not erred in holding that Mr Brandis was not employed by BHPB. At par 293 Beech CC noted that the President had observed that the contract between IW and BHPB had expired. The Chief Commissioner stated: "The matter at first instance, and this appeal, have both been engaged on the implicit basis that the contract between IW and BHPB continued in existence".
50 Beech CC stated that in relation to ground 3, that is the ground that the Commission had erred in holding that the refusal of BHPB to employ Mr Brandis was not unfair, he had had the advantage of reading in draft form the reasons for decision of the President in relation to that ground and agreed with the order proposed by the President.
51 Kenner C also undertook a detailed discussion of grounds 1 and 2 of the appeal to the Full Bench and the facts and law relating to those grounds. Kenner C concluded that there was no contract of service on foot between BHPB and Mr Brandis. Kenner C then went on to consider ground 3. Kenner C stated that he agreed with the submissions of the Union that the Commissioner misdirected himself as to the proper question to be asked in relation to the unfair refusal to employ issue. Kenner C said that the issue was not whether on the facts as found, the decision to employ Mr Brandis was reasonably open, nor was there any necessity for a "relatively high hurdle" to be surmounted to persuade the Commission in favour of the appellant's claim. What was required was a
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- consideration of whether, in all the circumstances, as a matter of equity, good conscience and the substantial merits of the case it was industrially unfair for BHPB to refuse to employ Mr Brandis. Kenner C went on to say that as to this ground he agreed with the reasons expressed by the President that in all of the circumstances it was unfair for BHPB to refuse to employ Mr Brandis. In particular, Kenner C referred to the evidence as to the psychologist's report.
52 Each of Beech CC and Kenner C delivered separate reasons for decision in which they reached a conclusion different from that of the President concerning the prior employment issue. In agreeing with the reasons of the President concerning the unfair refusal to employ issue they must have understood that the President's finding on the prior employment issue was not part of his reasons for finding that BHPB had unfairly refused to employ Mr Brandis or alternatively they must have agreed with the reasons of the President on the unfair refusal to employ issue excluding the President's findings concerning the prior employment issue. To conclude otherwise would be to conclude that each of the Commissioners separately arrived at the inconsistent and self contradictory conclusion that they agreed that BHPB had unfairly refused to employ Mr Brandis in part because BHPB at all material times employed Mr Brandis when they had found that that was not so. The court should only attribute such an irrational conclusion to each of the Commissioners if their reasons for decision compelled that finding. To the contrary, the natural and ordinary reading of their reasons for decision is, as I have said, that in relation to the unfair refusal to employ ground of appeal they agreed with the reasons of the President which reasons did not include his Honour's findings concerning the prior employment issue or if they did then Beech CC and Kenner C did not agree with those parts of the President's reasons.
53 For the reasons stated, ground 1 of the appeal does not succeed.
Ground 2
54 Senior counsel for BHPB submitted, in effect, that ground 2 was included in the grounds of appeal in response to the appeal by the Union and it was not pressed. It is not necessary to say anything further about ground 2.
Ground 3
55 Ground 3 is that the Full Bench, having found that the Commissioner erred in respect of the question of whether BHPB had unfairly refused to
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- employ Mr Brandis and should be ordered to employ him, failed or refused to remit the matter to the Commissioner to decide the issue in light of fresh evidence which BHPB wished to adduce and the Full Bench failed to give BHPB an opportunity to adduce that evidence before proceeding to decide the matter itself and thereby denied BHPB procedural fairness and the right to be heard.
Background to ground 3
56 The hearing of the appeal to the Full Bench proceeded on 13 and 14 December 2004 and was then adjourned part heard. The hearing of the appeal recommenced on 15 March 2005. In the meantime, on 14 March 2005, BHPB had filed a notice of application. The application was in two parts. The first part was an application for leave to lead fresh evidence to the effect that from or about 15 February 2005 IW ceased providing the services of Mr Brandis to BHPB pursuant to its contract with BHPB, that with effect from 8 March 2005 Mr Brandis was no longer employed by IW and by reason of those matters IW would no longer be providing the services of Mr Brandis to BHPB. The second part of the application was that in the event that the Full Bench determined that there was an appealable error at first instance in respect of the Union's claim for an order that BHPB employ Mr Brandis, the case should be remitted to the Commissioner for further hearing and determination and to hear further evidence. That further evidence was evidence of two matters. The first was the further evidence sought to be led before the Full Bench, that is that IW had ceased providing the services of Mr Brandis to BHPB and Mr Brandis was no longer employed by IW. The second matter was evidence of incidents which occurred in mid-December 2004 and mid-February 2005 whilst Mr Brandis was operating locomotives on BHPB's rail system which evidence BHPB wished to rely on in further opposition to an order that it be required to employ Mr Brandis in circumstances where it had made an assessment as to his unsuitability for employment with BHPB.
57 At the resumed hearing of the appeal on 15 March 2005 the notice of application was brought before the Full Bench and the Full Bench determined that the application should be then dealt with. Mr Dixon SC, commenced his submissions in support of the application. Counsel for the Union, Mr Schapper, interrupted Mr Dixon and made submissions concerning par 3 of the notice of application, that is the application that in the event the Full Bench found there was error at first instance the case should be remitted to the Commission at first instance for further hearing
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- and determination and to hear the further evidence. Mr Schapper submitted:
"I've got no difficulty with saying that if the Full Bench finds error in respect of Commissioner Wood in respect of our claim that they should be ordered to employ him, that should go back and the subsequent allegations or allegations of subsequent events should be the subject of further hearing and we will deal with that."
59 The Full Bench delivered its reasons for dismissing the application to adduce fresh evidence in the course of its reasons for decision in the substantive appeal. At par 66 the President stated that BHPB had made application to adduce fresh evidence. The evidence sought to be adduced was contained in the affidavit of Mr Ritchie. His evidence was that on or about 15 February 2005 IW ceased providing Mr Brandis' services to BHPB pursuant to its contract with BHPB and further that as and from 8 March 2005 Mr Brandis was no longer employed by IW. At par 71 the President said that the evidence was merely more evidence of acts by the respondents purporting to be authorised by the contracts which they say exist and existed. At par 72 the President said that unilateral acts by IW after the matter was determined at first instance and sought to be used by the respondents in affirmation of their cases was not a matter going to the merit of the proceedings at first instance on the appeal. Those events did not in any way falsify or affect the correctness or otherwise of the Commissioner's finding. The evidence was not relevant to the question of remedy. For those reasons the President dismissed the application to adduce that evidence.
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60 BHPB sought to raise the matter of remittal at the speaking to the minutes. BHPB proposed that the reasons for decision of the Full Bench should be given effect to by orders in the following terms:
1. that [BHPB] did unfairly refuse to employ Gregory James Brandis as a locomotive driver as and from 7 May 2004.
2. that the matter be remitted to Commissioner Wood for further hearing and determination.
61 After the speaking to the minutes the Full Bench delivered supplementary reasons for decision. In those reasons the President said that the submission by BHPB that the proposed order be amended was not competent because it was not a matter to be raised on a speaking to the minutes. Further, the submissions made represented a calling into question of part of the decision made by the Full Bench or otherwise were incompetent as an attempt to achieve a calling into question of a decision of the Commission expressed in a minute in accordance with the reasons given. Further, insofar as there was an attempt to adduce evidence already rejected, that was incompetent. Beech CC said that the decision of the Full Bench was to not to suspend and remit the decision and accordingly what was submitted by BHPB was outside the purpose of a speaking to the minutes and asked the Full Bench to do what it did not have power to do in the absence of a reopening of the matter. Beech CC went on to make observations that he had considerable difficulties seeing how alleged events in December 2004 or February 2005 could be relevant to whether or not BHPB should be now required to employ Mr Brandis from 7 May 2004. Kenner C generally agreed with the reasons of the President and added that with the application by BHPB to adduce fresh evidence having been refused by the Full Bench it was then too late to re-agitate those issues once again.
BHPB's argument
62 BHPB submits that the Full Bench denied it the right to be heard when, in the re-exercise of the discretionary judgment it decided whether BHPB's refusal was unfair and whether the orders the Union sought should be made. BHPB submits that whilst the Full Bench dismissed BHPB's application to adduce fresh evidence it did not consider BHPB's application or submission that, if the Full Bench found error, it should remit the matter to the Commission for further hearing. Further, BHPB submits, that having given no indication it would not adopt the course agreed by the parties in relation to remitting the matter to the Commission, the Full Bench proceeded to decide the matter for itself but
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- denied the parties the right to be heard as to why, on the basis of events which occurred after the hearing at first instance, no order to employ or otherwise should be made. It was essential that, before the Full Bench decided to order that BHPB employ someone who had been involved in a further safety incident on its rail system, it give BHPB the opportunity to be heard as to the appropriateness of such an order.
Determination of issues and the right to be heard
63 I have already referred to Pantorno v The Queen (supra). Mason CJ and Brennan J there held that when the parties to an adversarial proceeding agree on a proposition of law and conduct their cases on that basis and the Judge determines the law to be different, he must inform the parties of the view he has formed when that is necessary to give them an opportunity to address new issues arising from the Judge's departure from the proposition of law on which the case was conducted. The same principle should apply when the parties conduct an appeal on the basis that if one ground of appeal is determined in favour of the appellant then the matter should be remitted to the original decision maker for further hearing.
64 Re Australian Railways Union; Ex Parte Public Transport Corporation (1993) 117 ALR 17 concerned a final award made by the Australian Industrial Relations Commission ("AIRC"). The relief granted by the AIRC was not the relief sought by any of the parties to the application which was before it. The parties had sought only an interim award. The Full Court of the High Court in a joint judgment pointed out that one aspect of the duty to act judicially is the duty to hear a party and to allow him or her a reasonable opportunity to present his or her case and, coupled with that duty, is the duty to consider the case put. Their Honours held that the parties were not given a reasonable opportunity to put whatever case they may have wished to put in opposition to the course eventually taken by the AIRC, that is the issue of a final award. Before making the final award, the AIRC ought to have alerted the parties to the possibility that it might do so, in order to afford them a reasonable opportunity to put whatever case they might have wished to put in the circumstances.
BHPB was not given a hearing on the remittal issue
65 In this case, the parties before the Full Bench were agreed that if the unfair refusal to employ ground of appeal was made out the matter should be remitted to the Commission for further hearing. The Full Bench gave no indication that it was not going to act on that basis. Indeed, the manner
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- in which the notice of application was dealt with by the Full Bench during the hearing of the appeal would lead a reasonable person in the position of BHPB to believe that the Full Bench would, if the relevant ground of appeal was made out, remit the matter for hearing by the Commission or at least would not take a different course without alerting the parties that it might do so and give them an opportunity to put their case for remittal.
66 The Full Bench did not give the parties that opportunity. The submissions made by BHPB at the speaking to the minutes did not amount to such an opportunity. The Full Bench rejected those submissions on the ground that the submission was not competent because it was not a matter to be raised on a speaking to the minutes as prescribed by s 35 of the Act.
67 The Union submits that BHPB had no right to be heard by the calling of further evidence in the appeal itself or by remittal if the appeal was upheld. Section 49(4) of the Act provides that the appeal shall be determined on the evidence and matters raised in the proceedings at first instance. It was submitted that this means the appeal proceeding itself is an appeal in the strict sense in which the appeal Tribunal's function is simply to determine whether the decision in question is right or wrong on the evidence and the law as it stood when the decision at first instance was made.
68 That is not an answer to the point presently under consideration. The relevant part of BHPB's application was not that the Full Bench should hear the further evidence concerning the safety issue. BHPB had submitted that the Full Bench should remit the matter to Commissioner Wood for further hearing and determination and to hear the further evidence.
69 The Union submits that whilst subsection 49(5) of the Act confers on the Full Bench a discretion to remit the case to the Commission for further hearing and determination subsection 49(6a) constrains the exercise of the discretion by providing that the Full Bench is not to remit a case to the Commission unless it considers that it is unable to make its own decision on the merits of the case because of lack of evidence or for other good reason. The Union submitted that BHPB never sought to meet the provisions of subsection 49(6a) until the speaking to the minutes. The answer to that submission is that BHPB did not make any such submissions because the hearing of the appeal proceeded on the basis that if the relevant ground of appeal was made out the case would be remitted to the Commissioner for further hearing and determination. By not
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- alerting BHPB to the possibility that the Full Bench might not act in accordance with the course agreed by the parties the Full Bench denied BHPB the right to put its case that the case be remitted to the Commission including its case that that course was not precluded by the provisions of subsection 49(6a). That is, BHPB was denied the right to be heard in relation to that issue.
Full Bench decision not to be remit should be set aside
70 Not every departure from the rules of procedural fairness will entitle the aggrieved party to a new hearing. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial: Stead v SGIC (1986) 161 CLR 141 per the Court at 145.
71 The court will not undertake the task of considering whether the observance of the hearing rule would have made no difference to the final decision if determining whether observance of procedural fairness would have made no difference to the final outcome involves assessing the merits of the decision. There will be rare cases where a court can properly say, without judging the merits, that observance of procedural fairness could not possibly have made a difference. One example discussed in Stead v SGIC (supra) is where a decision-maker denies a party the opportunity to make submissions on a question of law that must be answered unfavourably to that party. Another example is where a hearing is denied in making a decision that the decision-maker is bound in law to make.
72 The Union submits, in effect, that if the Full Bench had given BHPB an opportunity to make submissions that if the unfair refusal to employ ground of appeal succeeded the case should be remitted to the Commissioner for further hearing and determination, nevertheless its decision would have been no different. That is because the Full Bench does not have power to receive further evidence on appeal and may only remit the case to the Commission for further hearing and determination if it considers that it is unable to make its own decision on the merits of the case because of lack of evidence or for other good reason.
73 Even if the Full Bench does not have the power to receive further evidence on appeal, a question it is not necessary to determine in the course of this appeal, that is no reason to deny BHPB relief on this ground of the appeal. As I have said, BHPB's application to the Full Bench was
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- that, if the unfair refusal to employ ground succeeded the case should be remitted to the Commission for further hearing and determination not that the Full Bench should itself receive further evidence in relation to the safety issue.
74 The Full Bench has power to suspend the operation of the decision appealed from and to remit the case to the Commission for further hearing and determination if it considers that it is unable to make its own decision on the merits of the case because of lack of evidence or for other good reason. There was good reason to remit the case to the Commission for further hearing and determination. The Full Bench found that the Commission at first instance had erred. In those circumstances the Full Bench must either itself exercise the discretion whether to order BHPB to employ Mr Brandis and on what terms or remit the case to the Commissioner to exercise that discretion. The Commissioner had not exercised the discretion because the Commissioner had found that BHPB had not unfairly or unreasonably refused to employ Mr Brandis. Furthermore, BHPB wished to lead evidence of incidents which occurred in mid-December 2004 in mid-February 2005 which BHPB submitted raised safety issues and made it inappropriate for the Commission to order that BHPB employ Mr Brandis. Importantly, BHPB and the Union agreed before the Full Bench that if the Full Bench found that the Commissioner had erred then the case should be remitted to the Commissioner and the allegations concerning the breach of safety issues in December 2004 and February 2005 should be the subject of further hearing before the Commissioner.
75 In all the circumstances the Full Bench, having found that the Commissioner erred in not finding that BHPB had unfairly or unreasonably refused to employ Mr Brandis, should have remitted the case to the Commissioner to further hear and determine whether it should order BHPB to employ Mr Brandis.
Appropriate order
76 Subsection 90(3) of the Act provides that this Court may confirm, reverse, vary, amend, rescind, set aside, or quash the decision the subject of appeal and may remit the matter to the Full Bench for further hearing and determination according to law. The appropriate course in this case is to vary the decision of the Full Bench by substituting an order that the case be remitted to Commissioner Wood for further hearing and determination in lieu of order 2 made by the Full Bench. The parties before the Full Bench agreed that that course should be followed.
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- Furthermore, remitting the case to the Commissioner would enable the Commissioner to consider receiving the further evidence concerning the safety issue and, if it receives the evidence, to test the evidence by cross-examination and make the necessary findings of fact. That is a course more appropriately undertaken by the Commissioner, whether or not the Full Bench has power to receive further evidence on appeal. Finally, the President has now retired and the case could not be remitted to the same Full Bench that made the decision appealed from.
Ground 4
77 Ground 4 is that the Full Bench exceeded its jurisdiction or power by ordering BHPB to employ Mr Brandis as and from 7 May 2004.
78 A refusal by an employer in an industry to employ a person may be an industrial matter even though that person is not employed by the employer and had never been employed by that employer in the past. Further, an employer may be obliged when seeking to employ a person in a vacancy to make an offer of employment to a particular person: RGC Mineral Sands v Construction, Mining, Energy, Timberyards, Sawmills, Woodworkers Union of Australia WA Branch (2000) 80 WAIG 2438 at 2445 per Parker J. The effect of s 23(1) of the Act is that the Commission has power to "deal with" the industrial matter constituted by the refusal to employ a person. Once the jurisdiction of the Commission is enlivened it has the power to make an order to "deal with" the industrial matter. Any order made by the Commission must be sufficiently related to the jurisdictional fact enlivening the Commission's jurisdiction, that is the refusal of the employer to employ the person: see RGC Mineral Sands v CFMEU (supra) per Parker J. An order to employ a person is sufficiently related to the industrial matter constituted by a refusal to employ that person so as to be within the power of the Commission to deal with that industrial matter.
79 In Board of Management, Princess Margaret Hospital for Children v Hospital Salaried Officers Association of Western Australia (Union of Workers) (1975) WAIG 543, Burt J (as he then was) expressed the opinion that the Commission in Court Session had no jurisdiction to "reinstate" the contract of employment. His Honour continued:
"I am not sure what an order in those terms means, and what its effect would be, and in particular what effect it would have upon the worker who was not of course a party to the proceedings. The order should in my opinion be an order directed to the employer … requiring it upon the worker
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- presenting himself for work at a particular place and time, to engage and so to employ the worker on the agreed terms and in the agreed vocation."
80 Section 23A(3) of the Act empowers the Commission to order an employer to reinstate an unfairly dismissed employee to the employee's former position on conditions at least as favourable as the conditions on which the employee was employed immediately before dismissal.
81 The Act does not expressly confer upon the Commission the power to order an employer to "reinstate" a person it has unfairly refused to employ. Indeed, it could not. The power "to reinstate" in the context of an employee unfairly dismissed means that the employment situation, as it existed immediately before the termination, must be restored. It requires restoration of the terms and conditions of the employment in the broadest sense of those terms: Blackadder v Ramsey Butchering Services Pty Ltd (2005) 79 ALJR 975 per McHugh J at [14]. There was no contract of employment between BHPB and Mr Brandis prior to the decision of the Commission at first instance. That is, there was no employment situation to be reinstated.
82 An order to employ should generally take the form of the order referred to by Burt J in the Princess Margaret Hospital case, that is, an order directed to the employer requiring it upon the worker presenting himself for work at a particular place and time to engage and so to employ the worker on the agreed or specified terms and in the specified position. The question is whether the Commission has power to order an employer to employ a person as and from a date preceding the order.
83 An order that an employer employ a person as and from a date preceding the order is truly retrospective. Such an order changes the rights and obligations of the employer and the person to be employed with effect prior to the making of the order. The courts have frequently declared that, in the absence of some clear statement to the contrary, an Act will be assumed not to have retrospective operation. Similarly, in the absence of some clear statement to the contrary, an Act will be assumed not to confer upon a court or tribunal the power to make orders that have retrospective operation. However, there is nothing preventing the Western Australian Parliament from making laws having retrospective operation or conferring upon the Commission the power to make orders with retrospective operation.
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84 The Union submits that the power to order that BHPB retrospectively employ Mr Brandis is to be found in s 39 of the Act. Subsection 39(3) of the Act provides that the Commission may, by its award, give retrospective effect to the whole or any part of the award, amongst other circumstances, if, in the opinion of the Commission, there are special circumstances which make it fair and right so to do.
85 The order made by the Full Bench was an order varying the decision of the Commissioner. The order that could have been made by the Commission is an order under s 44 of the Act. Subsection 44(13) provides that s 39 applies, with such modifications as are necessary, to an order made under s 44.
86 The effect of subsection 44(13) together with subsection 39(3) of the Act is to expressly confer upon the Commission the power to give retrospective effect to an order made under s 44. An order that an employer employ a person it has refused to employ is an order that may be made under s 44. There is nothing in s 44 of the Act or other relevant provisions of the Act that requires subsection 44(13) to be construed so as not to confer upon the Commission the power to order that an employer employ a person as and from a date preceding the date of the order. To the contrary, upon its proper construction subsection 44(13) together with subsection 39(3) confers that power upon the Commission.
87 That is not the end of this ground of appeal. The Union concedes that the order of the Full Bench was beyond power for a different reason. Subsection 39(3) of the Act provides that the Commission may give retrospective effect to an award if in the opinion of the Commission there are special circumstances which make it fair and right to do so but not beyond the date upon which the application leading to the making of the award was lodged in the Commission. The application to the Commission was made on 10 June 2004. Hence, subsection 39(3) did not, in any event, empower the Commission to give effect to its order as from 7 May 2004.
88 The Commission erred in law in the construction or interpretation of subsection 44(13) and subsection 39(3) of the Act in the course of making the decision appealed against. It is a necessary implication from the fact that the Commission gave retrospective effect to its order beyond the date upon which the application was lodged that it construed or interpreted the statutory provisions as conferring upon the Commission the power to give retrospective effect to its order beyond the date upon which the application leading to the making of the order was lodged in the
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- Commission. This ground of appeal is competent by reason of par 90(1)(b) of the Act.
89 Furthermore, the Commission is only empowered to give retrospective effect to an award if in its opinion there are special circumstances which make it fair and right so to do. The Full Bench did not find that there were special circumstances which made it fair and right to give retrospective effect to its order.
90 Further, no party before the Commission or the Full Bench submitted that the Commission or the Full Bench should give retrospective effect to its order. The issue was never raised before the Commission or the Full Bench. By making the retrospective order in circumstances where the matter was not raised at first instance or on appeal, the Full Bench denied BHPB the right to be heard in relation to that matter. BHPB did not allege that it had been denied the right to be heard in relation to that matter in its grounds of appeal. However, the Union concedes that the retrospective order was beyond power and must be quashed. The fact that no party sought the retrospective order and that it was not raised at first instance or on appeal is relevant to the order that this Court should now make.
91 The retrospective order made by the Full Bench must be set aside. That much is conceded by the Union. If ground 4 of the appeal alone succeeds then the appropriate order would be to vary the order of the Full Bench so as to remove the retrospective element from its order. It would not be appropriate to remit to the Full Bench for further hearing the question whether the order should have retrospective effect because no party had sought such an order and the matter had never been raised at first instance or on appeal before the Full Bench.
Ground 5
92 Ground 5 is not pressed by BHPB.
IAC 6
93 In IAC 6 of 2005 the Union appeals from the decision of the Full Bench on the ground that the Full Bench erred in holding that Mr Brandis was not employed under a contract of employment with BHPB and should have held that a contract of employment existed between Mr Brandis and BHPB.
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Jurisdiction
94 The jurisdiction of this Court is prescribed by subsection 90(1) of the Act:
"Subject to this section, an appeal lies to the Court in the manner prescribed from any decision of the President, the Full Bench, or the Commission in Court Session –
(a) on the ground that the decision is in excess of jurisdiction in that the matter the subject of the decision is not an industrial matter;
(b) erroneous in law in that there has been an error in the construction or interpretation of any Act, regulation, award, industrial agreement or order in the course of making the decision appealed against; or
(c) on the ground that the appellant has been denied the right to be heard,
but upon no other ground."
95 The ground of appeal stated in the Union's notice of appeal is that the Full Bench erred in holding that Mr Brandis was not employed under a contract of employment with BHPB and that the Full Bench should have held that a contract of employment existed between Brandis and BHPB. That ground of appeal does not on its face disclose a ground falling within subsection 90(1) of the Act. In the course of argument the Union submitted that the appeal falls within par (a) and par (b) of subsection 90(1) of the Act.
Section 90(1)(a)
96 The appeal does not fall within par 90(1)(a). That ground is that the subject of the decision is not on an industrial matter, that is, is not with respect to an industrial matter: see Personnel Contracting Pty Ltd t/as Tricord Personnel v Construction, Forestry, Mining and Energy Union of Workers [2004] WASCA 312.
97 Before it was amended by the Industrial Relations Reform Act 2002 s 90 of the Act provided that an appeal lies to the court, on the ground, amongst other things, that the decision is in excess of jurisdiction. The amendment by the Industrial Relations Reform Act 2002 narrowed that ground of appeal to appeals on the ground that the decision is in excess of
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- jurisdiction in that the matter the subject of the decision is not on an industrial matter. A ground that the decision is in excess of jurisdiction is not within par 90(1)(a) if the ground is not that the matter the subject of the decision is not on an industrial matter. In this case the matter that is the subject of the Full Bench decision is the refusal of BHPB to employ Mr Brandis. That is clearly an industrial matter and the Union appeal does not assert otherwise. The Union appears to submit that the matter the subject of the Full Bench decision is the employment relationship between BHPB and Mr Brandis. The Union appeals on the ground that the relationship at all material times was an employment relationship. That is, the ground of the Union appeal is not that the matter the subject of the Full Bench decision is not on an industrial matter. The Union appeal does not fall within par 90(1)(a).
Section 90(1)(b)
98 Before the amendment to s 90 of the Act by the Industrial Relations Reform Act 2002 subsection 90(1) permitted an appeal to the court on the ground that the decision is erroneous in law. The ground is now limited to the ground that the decision is erroneous in law in that there has been an error in the construction or interpretation of (relevantly) any Act in the course of making the decision appealed against.
99 The Union submits that the appeal falls within par 90(1)(b) because the majority of the Full Bench wrongly construed the provisions of the Act relating to "employer" and "employee" by wrongly determining that the statutory criteria were not satisfied. The Union submits that the majority erred by not applying all of the indicia of the employment relationship and by finding that those statutory definitions were not satisfied for the reasons found by the majority, that is merely because the alleged "employee" had entered into a bona fide written agreement with a labour hire firm, had never been paid directly by the alleged "employer" and/or had applied for employment with the alleged "employer".
100 The Union submits that the proposition that this raises an error envisaged by par 90(1)(b) is consistent with the decision in United Construction Pty Ltd v Birighitti [2003] WASCA 24.
101 In United Construction (supra) Hasluck J held that the issue at the outset was whether the respondent could be characterised as an employee within the meaning of the Long Service Leave Act during the relevant period. His Honour said that the term "employee" could not be regarded simply as a term with an ordinary meaning and the term as it is used in the Long Service Leave Act is a technical legal term which should be
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- characterised as a question of law. It was not possible to resolve that question of law without being conscious of and giving proper weight to the way in which the term employee was defined and used in the Long Service Leave Act. His Honour held that the Industrial Appeal Court had jurisdiction to deal with the appeal upon the basis that it was an appeal against a decision which was said to be erroneous in law in that there had been an error in the interpretation of the Long Service Leave Act. Scott J held that the Industrial Appeal Court had jurisdiction to entertain the appeal because the issue in the appeal turned upon the definition of "employee" in the Long Service Leave Act and was therefore a question of construction or interpretation of that Act. Anderson J found that the appeal was incompetent because the decision of the Full Bench involved no matter of construction or interpretation.
102 In Personnel Contracting v CFMEU the Court found that the appeal was competent within par 90(1)(a) of the Act. Heenan J alone went on to consider whether the appeal was competent under par 90(1)(b) of the Act. His Honour considered that the appeal was competent under that paragraph on the basis that the determination of whether or not the workers were employees and the appellant was an employer involved the determination and application of the meaning of those terms as they are employed in the Act especially in relation to the conduct of a labour hire agency. His Honour acknowledged that the common law concepts of employer and employee are adopted and applied by the language of the Act but considered that that does not mean that a determination of whether or not an individual is an employee or an employer does not involve the proper interpretation of the statute.
103 Some grounds of appeal asserting that the Full Bench erred in law in finding that a person was not an employee of another person may be on the ground that there has been an error in the construction or interpretation of the words "employee" or "employer" in the Act. United Construction and Personnel Contracting were held by the majority in the former and by Heenan J in the latter to be such cases. However, not all appeals on the ground that the Full Bench erred in finding that a person was not an employee are appeals on the ground that there has been an error in the construction or interpretation of "employee", "employer" or "industrial matter" in the Act.
104 In Vetter v Lake Macquarie City Council (2001) 202 CLR 439, Gleeson CJ, Gummow and Callinan JJ observed (at [451]), by reference to Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 and to Hope v Bathurst City Council (1980) 144 CLR 1, that where different
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- conclusions are reasonably possible to the question whether a statutory expression applies to primary facts, the determination of which is the correct conclusion is a question of fact. If only one answer is reasonably open, the question is one of law.
105 Where a court must determine whether a person is an employee then other than where the relationship is dependent solely upon the true construction of a written document, the task the court is engaged upon is the application of the law to the facts before it in the individual case. It involves a question of law only when the law requires that a certain answer be given because the facts permit only one answer. Where a decision either way is fairly open, depending on the view taken, it is treated as a decision of fact, able to be impugned only if in the process of determination the decision-maker misdirects himself: Hope v Bathurst City Council (supra).
106 If the Commission does make an error of law in the course of deciding whether a person is an employee that error will not necessarily be appealable under par 90(1)(b) of the Act. The error will only be appealable if the error was in the construction or interpretation of any Act, regulation, award, industrial agreement or order.
107 An appealable question of law might arise where the conclusion of the Commission is so clearly untenable as to amount to an error of law; proper application of the law requires a different answer. That will be the position only where the evidence admits of only one reasonable conclusion. It does not matter whether this Court considers that it would have reached a different conclusion. What matters is whether the decision under appeal was a permissible option. Where only one conclusion is reasonably open and the Full Bench reaches a different conclusion it may be open to infer that the Full Bench misunderstood the statutory criteria and thereby erred in law in the construction or interpretation of the Act.
108 However, it is not necessary to decide whether an appeal on the ground that the proper application of the law requires a different decision from that of the Commission raises an appealable error of law. That is because there is evidence upon which the Full Bench could properly find that there was no contract of employment between BHPB and Mr Brandis. That evidence included the AWA(s) between Mr Brandis and IW, the services contract between IW and BHPB, the absence of any promise by, or obligation of, BHPB to pay Mr Brandis and the manner in which BHPB and Mr Brandis conducted themselves towards each other.
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109 Appealable questions of law may arise from the reasoning of the Full Bench on the way to its ultimate conclusion. If the Full Bench were, for example, to misinterpret the provisions of the Act, defining "employee" or "employer" in the course of deciding that Mr Brandis was not employed under a contract of employment with BHPB that would be an error of law in the construction or interpretation of the Act and would be appealable under par 90(1)(b).
110 An appeal cannot be made, however, on the ground that there has been an error in the construction or the interpretation of the Act where the Full Bench has merely applied law which it has correctly understood to the facts of an individual case. It is for the Full Bench to weigh the relevant facts in the light of the applicable law.
111 The Union must establish that the majority made an error of law in the construction or interpretation of the provisions of the Act relating to the meaning of "employer" or "employee" in the course of making the decision that Mr Brandis was not employed by BHPB. The latter requirement necessitates that the error in construction or interpretation must have materially affected the majority's decision.
The Union case on the prior employment issue
112 The Union case proceeds on the basis that Mr Brandis was an employee of BHPB according to ordinary concepts. The Union case is that whether or not there was a contract of employment between BHPB and Mr Brandis is to be determined by determining whether Mr Brandis was an employee of BHPB at common law. The Union submits that the errors made by each of Beech CC and Kenner C were in not applying or properly applying, the common law "indicia" test to determine whether there is a contract of service.
113 The Union submits that the correct approach to deciding the question of the existence of an employment relationship is to have regard to the "totality of the relationship" – see Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at 33, [24]; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 29; Personnel Contracting Pty Ltd v CFMEU (supra) at [28] per Steytler J at [99] – [100] per Simmonds J.
114 In Hollis v Vabu (supra) and Steven v Brodribb Sawmilling Co Pty Ltd (supra) the High Court set out the common law principles for distinguishing between an employee and a contractor. These principles do not embody a definition of employment as such. They rely instead on a test which involves the consideration of a number of established factors or
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- indicia, some of which are characteristic of a contract of service and others of which suggest a non-employment relationship. The task of the court which must assess the employment status of a worker is to consider the parties' relationship in light of each of these indicia and to determine, on balance, into which legal category the relationship falls. The exercise is not a mechanical one. Rather it is a matter of obtaining the overall picture from the accumulation of detail.
Errors allegedly made by Beech CC
115 The Union submits that Beech CC decided that no employment relationship existed between Mr Brandis and BHPB because there was an application for employment to BHPB by Mr Brandis and a refusal by BHPB of employment. The Union submits that a possible subsidiary reason of Beech CC for his decision was the provision in the AWA for payment by IW to Mr Brandis and the absence of direct payment from BHPB to Mr Brandis. The Union submits that Beech CC did not adopt an approach of deciding the question of employment by balancing all the indicia of the employment relationship with the matters that he gave as reasons for finding against the employment relationship.
116 Beech CC construed the definitions of "employee" and "employer" in the Act to involve the common law concepts of "employee" and "employer". The Union does not submit that the Chief Commissioner thereby made any error. To the contrary, the Union submits that the definitions of "employee" and "employer" in the Act involve the common law concepts of "employee" and "employer".
117 Beech CC said that he would conclude that if there was a contract between them, the conduct of Mr Brandis and BHPB resulted in the contract being one of service and not for services. However, the Chief Commissioner said the issue was whether there was a contract at all between Mr Brandis and BHPB.
118 Beech CC found that there was no contract of employment between BHPB and Mr Brandis for two reasons. The first was that, objectively viewed, there was no intention on the part of Mr Brandis and BHPB to enter into a contract at all. The conduct of Mr Brandis in applying to be employed by BHPB and of BHPB in refusing Mr Brandis' employment was inconsistent with a common intention to create the relationship of employer and employee between them whilst Mr Brandis worked pursuant to the tripartite relationship between himself, IW and BHPB.
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119 Secondly, the necessary mutuality of obligation did not exist between BHPB and IW in that there was no promise by, or obligation upon, BHPB to pay Mr Brandis. Beech CC noted that the Commission at first instance had found that the mutuality of obligation necessary for the implication of a contract of service between Mr Brandis and BHPB did not exist. Beech CC held that the Commission was correct to so find. The mutuality of obligation did not exist because BHPB had no obligation to pay Mr Brandis if IW failed to do so. There was no promise of payment to Mr Brandis by BHPB.
120 It is not for this Court to determine whether or not Beech CC arrived at the correct finding. The appeal is confined to an error of law in the construction or interpretation of (relevantly) any Act in the course of making the decision appealed against. The Union has not demonstrated that Beech CC misconstrued the provisions of the Act relating to the meaning of "employer" and "employee".
Errors allegedly made by Kenner C
121 The Union submits that Kenner C emphasised the question of payment by IW to Mr Brandis, that the written arrangements were bona fide and that Mr Brandis applied for employment with BHPB. The Union submits that Kenner C did not adopt an approach of deciding the question of employment by balancing all the indicia of the employment relationship.
122 Kenner C said that for the Union to succeed in establishing a contract of employment between BHPB and Mr Brandis, two steps were required to be satisfied. The first step is to establish that there existed between BHPB and Mr Brandis, at material times, a contract, the second step having established the existence of a contractual relationship, is then to establish that that relationship had the character of employment and not some other character.
123 Kenner C found that there was no contract between BHPB and Mr Brandis because the essential requirement of mutuality of obligation, and in particular the obligation on BHPB to provide consideration in the form of remuneration paid to Mr Brandis for his services rendered, was not made out. Kenner C considered that it was essential to establish a contractual relationship between BHPB and Mr Brandis to point to an enforceable legal right to payment of wages for work performed as between Mr Brandis and BHPB.
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124 Kenner C considered whether a contract might be implied between BHPB and Mr Brandis from their conduct. The Commissioner considered relevant matters including the extent of control exercised by BHPB over Mr Brandis. The Commissioner found that given all of the evidence and in particular the detailed contractual arrangements entered into between the parties a contract between BHPB and Mr Brandis should not be implied. The Commissioner considered, amongst other things, that Mr Brandis' own conduct was inconsistent with the existence of such a contract.
125 Kenner C construed the definitions of "employee" and "employer" in the Act to involve the common law concepts of "employee" and "employer". He did not misdirect himself as to the proper interpretation or construction of the provisions of the Act defining "employee" or "employer".
126 For the reasons stated, the Union appeal is not made out.
Conclusion
127 For the reasons stated, I would allow appeal IAC 5 of 2005 and vary the decision of the Full Bench by deleting par (2) of the order of the Full Bench and substituting an order that the case be remitted to Commissioner Wood for further hearing and determination. I would dismiss appeal IAC 6 of 2005.
Key Legal Topics
Areas of Law
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Employment & Labour Law
Legal Concepts
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Jurisdiction
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Unfair Refusal to Employ
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Procedural Fairness
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Contract of Employment
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Statutory Construction
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