Blue Ribbon Products Pty Ltd v Tasmanian Industrial Commission - [2004] TASSC 142

[2004] TASSC 142

CITATION:Blue Ribbon Products Pty Ltd v Tasmanian Industrial Commission [2004] TASSC 142

PARTIES: BLUE RIBBON PRODUCTS PTY LTD

(ABN 42 009 079 688)
v
TASMANIAN INDUSTRIAL COMMISSION
AUSTRALASIAN MEAT INDUSTRY
EMPLOYEES UNION, TASMANIAN BRANCH

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 19/2004
DELIVERED ON:  7 December 2004
DELIVERED AT:  Hobart
HEARING DATES:  8 June 2004
JUDGMENT OF:  Crawford, Slicer and Evans JJ

CATCHWORDS:

Industrial Law – Other jurisdictions – Tasmania – Tasmanian Industrial Commission – Powers – Dispute concerning termination of employment – Whether power to make orders limited to making orders affecting only employer and employee – Whether order for reinstatement of employment arrangements may be made against company contracting with employer for provision of labour.

Re Amalgamated Metal Workers Union of Australia; Ex parte Shell Company of Australia Ltd (1992) 174 CLR 345; Brown v Rezitis (1970) 127 CLR 157; Downey v Trans Waste Pty Ltd (1991) 172 CLR 167, referred to.
Aust Dig Industrial Law [424]

REPRESENTATION:

Counsel:
             Appellant:  N J Green QC and M E O'Farrell
             First Respondent:
             Second Respondent:  K E Read
Solicitors:
             Appellant:  Rae & Partners
             First Respondent:  Director of Public Prosecutions
             Second Respondent:  McLean Phillips & Bartlett

Judgment Number: [2004] TASSC 142
Number of Paragraphs: 83

Serial No 142/2004
File No FCA 19/2004

BLUE RIBBON PRODUCTS PTY LTD (ABN 42 009 079 688)
v TASMANIAN INDUSTRIAL COMMISSION and AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, TASMANIAN BRANCH

REASONS FOR JUDGMENT FULL COURT

CRAWFORD J
SLICER J
EVANS J
7 December 2004

Order of the Court

Appeal dismissed.

Serial No 142/2004
File No FCA 19/2004

BLUE RIBBON PRODUCTS PTY LTD (ABN 42 009 079 688)
v TASMANIAN INDUSTRIAL COMMISSION and AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, TASMANIAN BRANCH

REASONS FOR JUDGMENT  FULL COURT
  CRAWFORD J
  7 December 2004

Central to the appeal is the question whether the Tasmanian Industrial Commission ("the Commission") established under the Industrial Relations Act 1984 ("the Act"), has power to make orders against persons who are either not parties to an industrial dispute or to proceedings before it or, in the case of an industrial dispute relating to termination of employment, were neither an employer nor an employee.

Background

The second respondent ("the Union") applied under the Act, s29(1), in respect of an industrial dispute with Newemploy Pty Ltd ("Newemploy"), arising out of alleged unfair termination of employment of 19 named employees ("the employees").

For a period of time, Blue Ribbon Meat Products Pty Ltd, which must not be confused with the appellant, carried on business as an abattoir and meat processing facility at Launceston. The employees concerned in the present dispute were production workers at the site. They had worked there for Blue Ribbon Meat Products Pty Ltd or previous owners of the facilities, for periods ranging from six months to 32 years. Their duties included packing, labouring, pork boning, rendering and despatching. In December 2001, Blue Ribbon Meat Products Pty Ltd was placed into administration. The administrators dismissed the employees and all other production workers and paid out their entitlements. However, they were immediately rehired as casual employees.

On 17 December 2001, the appellant and Newemploy were registered. The appellant purchased the business that had been operated at the site and commenced operating in about January 2002. The two companies had agreed that Newemploy would provided labour to the appellant. On 7 January 2002, Newemploy commenced employing 15 of the employees under the terms of the Meat Processing Industry Award ("the Award") and hired them to the appellant. Those 15 entered into three month contracts with Newemploy until 7 April 2002. They then entered into 12 month employment contracts with Newemploy, that were described as "training contracts", and they continued to be hired by Newemploy to the appellant. The other four of the employees, who were also taken on by Newemploy, were regarded as casual workers. They signed similar contracts, so far as may be relevant.

The appellant and Newemploy came to an understanding that upon Newemploy's employment contracts with the employees coming to an end on 2 April 2003, Newemploy would not continue its employment of them. Instead, they would receive an offer from Newemploy that if they wished, it would register them as independent contractors on a list it would keep and thereafter, labour supplied by Newemploy for the appellant's operations would be supplied in the form of independent contractors and not as employees of Newemploy. In the month leading to 2 April 2003, it was made clear to the employees that if they did not sign independent contractor agreements with Newemploy, work would no longer be available to them.

The employees who are the subject of this dispute either refused to sign the new agreements, or signed them and subsequently changed their minds. On 3 April 2003, they arrived at the worksite to find the gates locked and a police and security guard present. Only those previous employees who had agreed to become independent contractors were allowed on site.

The hearing before the Commissioner

On 4 April 2003, the Union applied to the President of the Commission, pursuant to the Act, s29(1), for a hearing before a Commissioner in respect of an industrial dispute with Newemploy arising out of the alleged unfair termination of its employment of the employees. Pursuant to s29(2), the President allocated the application to a Commissioner for a hearing, which extended on a number of days until 18 August 2003. Those who appeared before the Commissioner included the Union, Newemploy, the Tasmanian Trades and Labor Council and the Minister for Justice and Industrial Relations. Foreseeing that difficulties might arise if an order for reinstatement of employment by Newemploy was made but the appellant would not be bound by such an order, the Union foreshadowed on 22 May 2003 that it would seek orders against the appellant as well. Subsequently, the Union submitted that the appellant should become a party to the dispute. At a hearing on 2 June 2003, the appellant was represented by counsel, who objected on the basis that the Act contained no power to join a party and the proceedings were so far advanced that the appellant's position would be prejudiced. The Commissioner noted that under s27(5), a person having a direct interest in any proceedings could apply for leave to appear and be heard in the proceedings, and considered that in light of the Union's foreshadowed application for orders against the appellant, the interests of justice dictated that the appellant be given an opportunity to be heard and participate in the proceedings. The Commissioner ordered that the hearing be adjourned for 28 days; that notice be served on the appellant to attend on the next hearing day; that if the appellant wished to recall any witnesses who had already given evidence, it could do so; that if the appellant intended to call witnesses, it should file their statements; and that the appellant be provided with copies of the transcript, witnesses' statements and exhibits. On 30 June 2003, counsel formally sought, and was granted, leave to appear on behalf of the appellant. It chose not to present evidence or to have witnesses recalled, but it did provide written submissions and its counsel appeared before the Commissioner on its behalf.

By s30(3), the employment of an employee who has a reasonable expectation of continuing employment, must not be terminated unless there is a valid reason for the termination connected with the capacity, performance or conduct of the employee or the operational requirements of the employer's business. The Commissioner found that all of the employees had a reasonable expectation of continuing employment. Newemploy claimed that there was a valid reason for the terminations, based on operational requirements imposed on it by its client, the appellant. The Commissioner rejected that claim. She found that although the two companies were separate entities, in terms of industrial relations they were heavily involved in each other's activities. She found that Newemploy was not created as a business on its own account, but it was part of an overall business plan, the two company structure being intended to cushion the appellant from any consequences arising from the employment practices at the Blue Ribbon work site. Far from being at "arm's length" in relation to employment issues, they were closely involved in each other's operations. The professed reason for the termination of Newemploy's employees, that it was imposed on Newemploy by the appellant, was held to be untenable. For reasons that do not need repeating, it was found that there was no valid reason for the termination of the employment of the employees and that the terminations were procedurally unfair. It was found further that the independent contractor arrangements were a sham, designed for the purposes of defeating the jurisdiction of the Commission.

Regard was had by the Commissioner to s30(9), which provides that the principal remedy in a dispute where it is found that employment has been unfairly terminated is an order for reinstatement of the employee to the job he or she held immediately before the termination of employment or, if the Commissioner is of the opinion that it is appropriate in all the circumstances of the case, an order for re‑employment of the employee to that job. By subs(10), compensation is an alternative remedy only if reinstatement or re-employment is impracticable. The appropriate remedy was considered by the Commissioner to be reinstatement and not compensation, given that the employees' performances and conduct were not in question.

Concerning whether it had power to make an order against the appellant when it was not a party, the Commissioner gained comfort from the following obiter dicta of Mason CJ, Deane, Toohey and Gaudron JJ in re Amalgamated Metal Workers Union; Ex parte Shell Company of Australia Limited (1992) 174 CLR 345 at 354 – 355, when considering the definition of "industrial dispute" in the Industrial Relations Act 1988 (Cth), s4(1):
"The effect of par (b) of the present definition of 'industrial dispute' is that an industrial dispute may be constituted by 'a situation that is likely to give rise to' a dispute, be it an actual, threatened, impending or probable dispute, 'about matters pertaining to the relationship between employers and employees'. When regard is had to the language of that paragraph, the definition appears to be quite wide enough to encompass a dispute with a company that is not an employer but, like Shell Australia, is in a position, because of the relevant corporate structure and because of its powers and rights with respect to a superannuation fund, directly to affect the relationship between an employer and its employees with respect to their superannuation entitlements."
The Commissioner regarded the definition of "industrial dispute" in the Act, s3(1), as broader than the one in the Commonwealth statute. The Commissioner rejected a submission by the appellant that it did not come within the dicta because it had no legal rights or powers, or other elements of control over Newemploy, by which it could directly affect the relationship between Newemploy and the employees, because it failed to take account of the distinction between arbitral power and judicial power. At pars[466] and [467] of its reasons the Commissioner said:

"The Commission exercises arbitral power for the purposes of settling industrial disputes, not judicial power. Judicial power is concerned with ascertainment, declaration and enforcement of the rights and liabilities of the parties as they exist. It is not for the Commission to determine the parties' rights at law. Section 20 (1) provides that the Commission:
'shall act according to equity, good conscience and the merits of the case...
(b) shall do such things as appear to it to be right and proper for...settling industrial disputes...''

In any event, I consider that is (sic) the fact of the relevant power, not the source of the power, that is the important factor. The proper consideration is whether a company is able to exercise such power, not why they are able to exercise it, and if, having such power, they exercise it in such a manner as to directly affect the relationship of employer and employee."

The ultimate conclusion of the Commissioner, before determining what orders should be made, was that the appellant, by entering into its agreement with Newemploy, directly affected the relations between Newemploy and its employees in such a significant way as to bring about the end of the employment relationship. It was more than just an agreement about the provision of labour. It was an agreement to change the existing employment relationship between Newemploy and its employees and a contrivance to avoid award obligations and industrial consequences. Both the appellant and Newemploy were involved in creating the contrivance. For those reasons, the Commissioner held that they should not be able to avoid an order for reinstatement of the employment because Newemploy's principal client would only have independent contractors on the site. It was therefore considered necessary to make orders against the appellant as well as Newemploy.

On 10 October 2003, the Commissioner made three orders:

"I hereby order, pursuant to the provisions of section 31 of the Industrial Relations Act 1984, that Newemploy Pty Ltd, 29 Killafaddy Road, Launceston, Tasmania, 7250, (registered office c/o Pitcher Partners, Level 6, 161 Collins St, Melbourne, Victoria, 3000) and Blue Ribbon Products Pty Ltd, 29 Killafaddy Road, Launceston, Tasmania, 7250 (registered office c/o Pitcher Partners, Level 6, 161 Collins St, Melbourne, Victoria, 3000) reinstate the employment arrangements which existed immediately prior to 2 April 2003 in respect of the persons named below:
[Names of 17 of the employees]
FURTHER that Newemploy Pty Ltd pay to the employees the amount of wages they would have received from 2 April 2003 to the date of the implementation of these Orders, less any income from paid work performed during that period, but not including any government benefits received during that period, such details to be confirmed by statutory declaration; and
FURTHER that the terms of these orders be complied with by no later than the close of business on 22 October 2003."

The application for judicial review

The appellant applied for the orders to be reviewed under the Judicial Review Act 2000. It argued (inter alia) that the Commissioner had no jurisdiction or power to make the orders that applied to the appellant and that the orders were unenforceable due to uncertainty. The application was dismissed. The learned judge held that the Commissioner had jurisdiction and power to make the orders and that the order that applied to the appellant was not so vaguely worded as to be uncertain.

General jurisdiction

There are 12 grounds of appeal. The first 11 concern the Commissioner's jurisdiction and power to make the orders insofar as they were directed at the appellant. The twelfth ground maintains an argument that the order was so vague as to be uncertain.

The general arbitral jurisdiction of the Commission is in s19, the relevant provisions of which are:
"19 — (1)   Subject to this Act, the Commission has jurisdiction to hear and determine any matter arising from, or relating to, an industrial matter.
(2)   For the purposes of subsection (1), the Commission may —
...
(c)   conduct hearings for settling industrial disputes;
..."
By s3(1), the expression "'industrial dispute' means a dispute in relation to an industrial matter — (a) that has arisen; or (b) that is likely to arise or is threatened or impending". The expression "industrial matter" is relevantly defined as follows:

"'industrial matter' means any matter pertaining to the relations of employers and employees and, without limiting the generality of the foregoing, includes —
(a)a matter relating to —
...
(ii)     the termination of employment of an employee or former employee; or
(iii)    the reinstatement or re-employment of an employee or a former employee who has been unfairly dismissed; or
(iv)    the payment of compensation to an employee or a former employee if the Commission determines that reinstatement or re-employment is impracticable; or
..."

It follows from s19 and the definition of industrial matter, that the Commission had jurisdiction to hear and determine any matter arising from, or relating to, a matter pertaining to the relations of an employer and its employees, and in particular, without limiting the generality of the opening words, to a matter pertaining to the termination of employment of an employee or former employee, the reinstatement or re-employment of an employee or a former employee who had been unfairly dismissed, and the payment of compensation to an employee or a former employee if the Commissioner determined that reinstatement or re-employment was impracticable, and indeed, any matter pertaining to the relations of employers and employees. Therefore, it is beyond question that the Commission's general jurisdiction included hearing and determining any matter arising from, or relating to, the termination by Newemploy of the employees, the reinstatement or re-employment of the employees if they were unfairly dismissed, and the payment of compensation to the employees if the Commission determined that reinstatement or re-employment was impracticable. What is not so clear is whether, in the exercise of that jurisdiction, the Commission had power to make orders in favour of employees that were directed to a person, such as the appellant, who was not, and never had been, the employer of the employees, but had merely hired them from the employer as part of its labour force.

The provisions of the Act concerning parties and appearances before the Commissioner

The Act is vague when it refers to parties to disputes or proceedings. In that regard it is poorly drafted. Provision is made in s29 for the process by which hearings for settling disputes may be commenced. By subs(1), an organisation registered under PtV, employer, employee or the Minister may apply to the President for a hearing before a Commissioner in respect of an industrial dispute. (That is what occurred in this case. The Union applied.) By subs(1A)(a), a former employee may apply to the President for a hearing before a Commissioner in respect of an industrial dispute relating to the termination of employment of the former employee. By subs(1D), an application for a hearing in respect of a dispute, including a dispute relating to termination of employment, is required to contain particulars of (a) the circumstances giving rise to the dispute; and (b) the nature of the claim; and (c) the remedy being sought by the applicant. To that point in the section, reference is made to an applicant for a hearing, but to no other person who might be or become a party to the industrial dispute or a party at the requested hearing.

Once an application for a hearing is made to the President under s29(1) or (1A), then by subs(2), the President must (a) allocate the application to a Commissioner for hearing; and "(b) cause notice of the time and place of the hearing to be given to a person who, or an organisation which, the President considers is able to assist in the settlement or prevention of the industrial dispute". By subs(1E), it is provided (inter alia) that at any time before the date of the hearing in respect of the industrial dispute "a party to the dispute" may request the Commission to, and the Commission of its own motion may, require the original applicant for the hearing to provide further and better particulars of certain matters if the Commission considers it necessary to ensure that the Commission and "the parties to the dispute" are properly informed. The section concludes with subs(3), which for the first time, refers to "proceedings" and to "the parties to the proceedings" rather than to the parties to the dispute. It provides that "at any stage of the proceedings relating to a hearing under subsection (2), the Commission, of its own motion or at the request of one or more of the parties to the proceedings, may attempt to conciliate the dispute".

The references in s29 to a party to the dispute and particularly to parties to the proceedings, are unclear. When an organisation, employer, employee, former employee or the Minister apply to the President for a hearing under s29(1) or (2), no other person is involved before the President or the Commission. When the President acts under subs(2) and allocates the application to a Commissioner for hearing and causes notice of the time and place of the hearing to be given to a person who, or an organisation which, the President considers is able to assist in the settlement or prevention of the industrial dispute, it is by no means clear that all persons or organisations who as a consequence, are given such a notice, become "parties to the proceedings" under subs(3). They may in fact have no material interest in "the proceedings" or the hearing and may only have been given notice because of the President's perception that they are "able to assist in the settlement or prevention of the industrial dispute". The answer to the problem probably is that they are all "parties to the proceedings", for it is difficult to perceive a meaning for the expression that does not include them all.

Further difficulties in interpretation arise from s31(4A), which requires that the Registrar must cause a copy of an order made by a Commissioner arising from a hearing to be served on "(a) any person to whom the order applies; and (b) any party to the hearing of the industrial dispute". I presume it was intended that a person may come within either of those descriptions without having to come within them both.

Once the President has acted under s29(2) by allocating the application to a Commissioner for hearing and by causing notice of the time and place of the hearing to be given to a person who, or the organisation which, the President considers is able to assist in the settlement or prevention of the industrial dispute, there is no provision within the Act which authorises the President at some later date to give such a notice to another person or organisation, nor is there a provision for the joinder or addition of parties. In the latter respect, I consider the simple explanation is that the Act does not contemplate parties in the sense that there are parties to most court proceedings. Instead, the Act makes provision for certain persons to appear before it and for others to intervene. I also note that s21(2)(b) empowers the Commission to direct that organisations or persons be summoned to attend a hearing.

Section 27(1) and (2) permit the Minister and, with the Commission's leave, an organisation, to intervene in the proceedings, and under subs(5) a person having a direct interest in any proceedings before the Commission may apply to it for leave to appear and to be heard in the proceedings, in which case subs(6) provides that if the Commission is satisfied that the person has a direct interest in the proceedings, it must grant that application. The next section, s28, makes provision for "a party to any proceedings" before the Commission, or the Registrar under PtV, to "appear in person or by his agent". By subs(2), "party" is said to include an intervener, for the purposes of the section. I have no doubt that it also includes any person who has been given leave to appear and be heard under s27 and any person to whom notice of the hearing was given pursuant to a direction of the President under s29(2).

It would not have been surprising if it had then been known that the Union intended to seek an order against the appellant, if the President had caused notice of the hearing to be given to the appellant when allocating the application to the Commissioner. That, of course, did not happen. It was argued for the appellant that because the President did not cause such a notice to be given to the appellant, no order against the appellant could subsequently be made.

Under s21(1) the Commission had power to regulate the procedure to be followed with regard to the hearing of the dispute. As noted above, without prejudice to the generality of subs(1) it was provided by subs(2)(b) that in relation to the matter before it, the Commission had power to direct that persons be summoned to attend the proceedings, and by par(e) it had power to hear and determine the matter, or any part of the matter, "in the absence of any party to it who has been duly summoned to appear or been duly served with notice of those proceedings".

What in fact occurred so far as the appellant was concerned was that it appeared before the Commissioner, obviously with leave, it was represented by counsel with leave, and submissions were made on its behalf. Therefore, the appellant was relevantly before the Commissioner. By its own actions, and with the Commissioner's agreement, it was a party to the hearing and to the proceedings, in the sense that those expressions are used in the Act. I note incidentally, that Mr John Hadden, one of its directors, was summoned to appear at the hearings. I also note that on 3 June 2003 and 18 June 2003, notices signed by the Acting Registrar were sent to the appellant, stating that "the President hereby convenes a hearing", which may have been an error, for the President had no power to do that once the provisions of s29(2) had been satisfied at an earlier point in time. Nothing of any consequence flows from that apparent error.

When exercising its jurisdiction under the Act, the Commissioner was required by s20(1)(a) and (b) to act according to equity, good conscience, and the merits of the case without regard to technicalities (par(a)), and to do such things as appeared to her to be right and proper for preventing and settling the industrial dispute (par(b)). The learned judge thought that adding parties would involve "regard to technicalities or legal form", contrary to s20(1)(a). In any event, the Act made no provision for parties to be added in a formal sense at any stage of the proceedings.

The power to make orders against the appellant

For reasons already stated, the Commission had jurisdiction to hear and determine any matter arising from, or relating to, the termination by Newemploy of the employees, their reinstatement or re-employment, the payment of compensation to them and more generally, any matter pertaining to the relations of employers and employees. The next question requiring determination concerns whether the Commissioner had the power to make an order that was directed to the appellant, when it was exercising that jurisdiction. Whatever her power may have been in that regard, the Commissioner was not restricted to the specific claim made or to the subject matter of the claim. See s20(3).

It is s31 that contained the Commissioner's general power to make orders. Its relevant provisions were:
"31 — (1)   Subject to this section, where the Commissioner presiding at a hearing under section 29 is of the opinion, after affording the parties at the hearing a reasonable opportunity to make any relevant submissions and considering the views expressed at the hearing, that anything should be required to be done, or that any action should be required to be taken, for the purpose of preventing or settling the industrial dispute in respect of which the hearing was convened, that Commissioner may, by order in writing, direct that that thing is to be done or that action is to be taken.
(1A) Before deciding whether or not to make an order in respect of an industrial dispute relating to termination of employment, a Commissioner is to give effect to the provisions of section 30.
(1B)                 If a Commissioner, in hearing an industrial dispute relating to termination of employment, finds that an employee or a former employee has been unfairly dismissed, the Commissioner may –
(a)if he or she believes it to be appropriate, order reinstatement or re-employment of the employee or former employee; or
(b)if in the Commissioner's opinion reinstatement or re-employment is impracticable, order that the employer pay the employee or former employee an amount of compensation, instead of reinstatement or re-employment, that the Commissioner considers appropriate in the circumstances, subject to section 30(12).
(1C)A Commissioner, in hearing an industrial dispute relating to termination of employment resulting from redundancy, may make an order in respect of severance pay for an employee or former employee whose employment is to be, or has been, terminated.
...
(4A)                The Registrar must cause a copy of an order made by the Commission to be served on –
(a)       any person to whom the order applies; and
(b)       any party to the hearing of the industrial dispute.
(5)       A person shall not contravene, or fail to comply with, a direction contained in an order under this section.
Penalty: Fine not exceeding 50 penalty units.
..."
Grounds of the appeal attack the orders on the basis that they were beyond the jurisdiction and power of the Commissioner, but apart from ground 12, which asserts vagueness and uncertainty, none of the grounds attack the orders upon the basis that they should not have been made if the Commissioner had jurisdiction and power to make them. Even if the making of the orders, insofar as they were directed to the appellant, were inappropriate and should not have been made for other reasons, if they were within the Commissioner's jurisdiction and power, this Court must allow them to stand, subject to a consideration of ground 12.

I will first consider the Commissioner's powers under subs31(1), without regard to the opening four words of the subsection and the provisions of s31(1A), (1B) and (1C) and s30. Subsection 31(1) is expressed in general terms. Subject to the requirement, which was satisfied in this case, that the parties at the hearing be afforded a reasonable opportunity to be heard, if the Commissioner formed the opinion that anything should be required to be done, or that any action should be required to be taken, for the purpose of preventing or settling the industrial dispute in respect of which the hearing was convened, the Commissioner was empowered to make an order directing that the thing be done or that the action be taken. There is nothing in the provision, or in any other provision in the Act, with the possible exception of subs31(1B) and s30, that inhibited the Commissioner's power to make orders against those who were parties at the hearing. As was observed by the learned judge in the court below, there is nothing in s31(1) that expressly limits the class of persons or entities against whom orders may be made.

It was submitted by the appellant that it was not a party to the industrial matter with respect to which the Commission was exercising jurisdiction under s19(1). It was argued that as the meaning of "industrial matter" in s3(1) is confined to any matter pertaining to the relations of employers and employees, and because there had never been such a relationship between the appellant and the employees, there was no power to make an order against the appellant. However, in my opinion, the argument confuses jurisdiction and power and seeks to place an interpretation on subs31(1) which fetters the general powers given by the subsection in a way that is unjustified as a matter of statutory interpretation. The appellant failed to make the necessary link between the limits of the meaning of "industrial matter" and the Commissioner's powers to make orders for the purpose of settling the industrial dispute that related to the industrial matter in question. There is nothing in the Act that relevantly limits the classes of person who may be served with notice of hearing under s29(2)(b), summoned to attend proceedings under s21(2)(b) or given leave to appear and be heard under s27(6) (provided that they have a direct interest in the proceedings).

There are a number of reported cases in other jurisdictions that were determined with regard to different industrial legislation in which support can be found for the proposition that arbitral tribunals may have power to make orders for the benefit of employees against persons or entities who are not their employers. In that regard, the learned judge in the court below referred to Australian Airlines Ltd v Moore (1995) 59 IR 119, Brown v Rezitis (1970) 127 CLR 157, re Amalgamated Metal Workers Union of Australia; Ex parte Shell Company of Australia Ltd (supra) and Australian Municipal and Administrative, Clerical and Services Union v Ansett Australia Ltd [2001] AILR 1362.

The relevant passage in re Amalgamated Metal Workers Union of Australia; Ex parte Shell Company of Australia Ltd is quoted earlier in these reasons. In Brown v Rezitis the Industrial Commission of New South Wales had power under the Industrial Arbitration Act 1940 – 1967 (NSW), s88F(1), to make an order declaring void any contract or arrangement whereby a person performed work in any industry, on grounds that it was unfair, harsh, unconscionable or against the public interest. By subs(2), the Commission was also empowered when making an order of that kind, to make such order as to the payment of money in connection with the contract or arrangement that was declared void "as may appear to the commission to be just in the circumstances of the case". Two employees were successful in obtaining an order declaring void their contract of employment, except to the extent to which it entitled them to remuneration. The employer was a company with a paid up capital of only $4. The commission made an order that the employer, its two shareholders who held the shares in trust, the beneficiary of the trust, a business agent company that acted on behalf of the employer in arranging the contract, the shareholders of that company and one of its employees, jointly and severally pay the two employees a sum of money. It was argued that an order for payment of the money could only be made against the company that was the employer, because it and the two employees were the only parties to the contract of employment that was the subject matter of the dispute. Barwick CJ with whom McTiernan, Windeyer and Owen JJ agreed, said at 163 – 164:

"In my opinion, even if the proceedings for the variation or avoidance of the contract or arrangement must be initiated by one of the parties to the contract or arrangement, the parties to the proceedings are not necessarily limited to those parties. It must be borne in mind that one of the purposes of the section is to deal with subterfuges, subterfuges which will take the worker out of the relationship of master and servant and therefore out of the operation of an industrial award designed, amongst other things, for the protection of workers in industry. There may be persons involved in the subterfuge who are not parties to the contract or arrangement but who are in reality the actors deriving benefit from the making or the execution of the contract or arrangement."

For the reasons I have given and with support from the cases to which I have referred, I hold that the general powers to make orders in s31(1) are not limited on a hearing in respect of an industrial dispute between an employer and an employee to the making of orders directed only to the employer and the employee.

Section 30 contains criteria that apply to disputes relating to termination of employment. By subs(1), the expression "employee" includes a former employee. Subsection (2) requires the Commission to ensure that fair consideration is accorded to both the employer and employee. Subsection (3) provides that the employment of an employee who has reasonable expectations of continuing employment must not be terminated unless there is a valid reason for the termination connected with certain matters. Subsection (4), without limitation, spells out a number of matters that do not amount to valid reasons for termination of employment. By subs(5), the onus of proving the existence of a valid reason for the termination of employment is placed on the employer, and by subs(6), where an applicant alleges unfair termination of his or her employment, the onus of proving that it was unfair is placed on the applicant. Subsections(7) and (8) provide that employment must not be terminated for certain reasons unless the employer is first given an opportunity to respond, subject to an exception.

The general powers of s31(1) to make orders are expressed, by the opening words, to be subject to the section. As the hearing was in respect of an industrial dispute relating to termination of employment, the provisions of subss(1A), (1B) and (1C) were material to the Commissioner's powers, as were subs30(9) and (10), which are in the following terms:
"(9) The principal remedy in a dispute in which the Commission finds that an employee's employment has been unfairly terminated is an order for reinstatement of the employee to the job he or she held immediately before the termination of employment or, if the Commission is of the opinion that it is appropriate in all the circumstances of the case, an order for re-employment of the employee to that job.
(10) The Commission may order compensation, instead of reinstatement or re-employment, to be paid to an employee who the Commission finds to have been unfairly dismissed only if, in the Commission's opinion, reinstatement or re-employment is impracticable."
I note that subss(11), (12) and (13) concern the assessment of the amount of compensation ordered to be paid under subs(10).

It was submitted by the appellant that because the hearing was in respect of an industrial dispute relating to termination of employment, and because the Commissioner found that the employees were unfairly dismissed, the Commissioner's powers to make orders pursuant to s31 were circumscribed by the opening four words of subs(1) and by subss(1A) and (1B) and s30(9) and (10), so that the only orders that could be made were orders of reinstatement or re-employment of the employees or, if they were impracticable, an order that Newemploy pay compensation to the employees. In other words, it was submitted that only the orders described in s31(1B) were permitted to be made. They amounted to an exhaustive definition of the Commissioner's powers, so it was argued, and the general provisions of subs31(1) were repugnant to the special scheme established by those provisions. Reliance was placed on Downey v Trans Waste Pty Ltd (1991) 172 CLR 167 at 171 – 172, and on the following passage from the judgment of Dawson J at 181:

"Where there is a repugnancy between the general provisions of a statute and provisions dealing with a particular subject matter, as a matter of general construction the latter must prevail. As Deane J pointed out in Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat and Livestock Corporation [No 2] (1980) 44 FLR 455 at 469; 29 ALR 333 at 347:
'Repugnancy can be present in cases where there is no direct contradiction between the relevant legislative provisions. It is present where it appears, as a matter of construction, that special provisions were intended exhaustively to govern their particular subject matter and where general provisions, if held to be applicable to the particular subject matter, would constitute a departure from that intention by encroaching on that subject matter.'

And in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 46 CLR 1 at 7, Gavan Duffy CJ and Dixon J observed:
'When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.'

Dixon J referred to the same principle in R v Wallis (1949) 78 CLR 529 at 550 when he said of the Commonwealth Conciliation and Arbitration Act 1904:

'If it confers a specific power with respect to a limited subject or specifies a manner of dealing with it or otherwise provides what the duty or authority of the arbitrator shall be, then upon ordinary principles of interpretation the provision in which that is done should be treated as the source of his authority over the matter, notwithstanding that otherwise the same or a wider power over the same matter might have been implied in or covered by the general authority given by s38. This accords with the general principles of interpretation embodied in the maxim expressum facit cessare tacitum and in the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.
This applies especially when the power or duty affirmatively conferred or imposed is qualified by some condition, limitation or direction.'"

Notwithstanding those principles, statutory construction depends of course on the statutory provisions, which may reveal an interpretation to which the principles do not apply. I make the following observations upon a consideration of the material provisions of ss30 and 31, and particularly those of s31.

There may be industrial disputes relating to termination of employment involving unfair dismissal, and there may be industrial disputes relating to termination of employment resulting from redundancy. There may also be industrial disputes relating to termination of employment that is not brought about by unfair dismissal or redundancy. In other words, s31 identifies three different categories of industrial disputes relating to termination of employment. For the third category, not involving unfair dismissal or redundancy, plainly the general power to make orders in subs30(1) applies. Although subs(1A) requires compliance with the provisions of s30, there is nothing in those provisions that prescribes the orders that may be made. Although subs30(2) requires that the employer and the employee or former employee must be accorded fair consideration, it does not limit the nature and kind of orders authorised by s31(1). For the second category, concerning termination by reason of redundancy, some of the provisions of s30 apply, but the only provision in the Act that deals expressly with the orders that may be made in such a case is subs31(1C), which provides that the Commissioner may make an order in respect of severance pay. In my view, there is insufficient indication that severance pay is the only remedy available in such a case and it follows that the general powers to make orders in s31(1) applies.

For the first category, into which the circumstances of this case fit, involving unfair dismissal, the special provisions of subs31(1B) and subss30(9) and (10) apply. It would be surprising if the general power of subs31(1) to make orders was intended to be entirely removed from this category but allowed to remain for the other two categories of industrial disputes arising out of termination of employment. Further, subss30(9) and (10) do not provide that the only remedies available for the first category are orders for reinstatement, re-employment and compensation. What they state is that the principal remedy is to be an order for either reinstatement or re-employment, and compensation may be awarded only if those two remedies are impracticable. If it had been intended to limit the available orders to those three kinds only, it would have been an easy drafting task to achieve that end. For these reasons, I hold that although subss30(9) and (10) must be applied and in particular, the principal remedy for a dispute such as the present one is an order for reinstatement or re-employment, the general powers of subs31(1) to make orders has not been removed from this category of dispute.

I adopt, with respect, the following passage from the reasons of the learned judge:

"Mr O'Farrell relied on the maxim generalia specialibus non derogant. He submitted that s31(1) is a general provision as to the making of orders for preventing or settling industrial disputes; that s31(1B) makes specific provision as to the orders that may be made in relation to a dispute as to unfair dismissal; and that it follows that no orders may be made in relation to such a dispute other than orders of the types referred to in s31(1B), each of which (reinstatement, re-employment or compensation) relates to something required only of an employer. In my view that conclusion does not follow. It is true that s31(1B) is a specific provision which limits the powers of the Commission to make orders to settle disputes as to the termination of employment. However it is necessary to consider the extent to which Parliament intended the Commissioner's powers to be limited in such cases. Prior to the 1997 amendments, a claim by a former employer for compensation for an allegedly unfair dismissal, unaccompanied by a claim for reinstatement or re-employment, was not capable of being the subject of an industrial dispute within the meaning of the Act: New Town Timber & Hardware Pty Ltd v Gurr (supra). The 1997 amendments enabled all claims by former employees for reinstatement, re-employment or compensation to be regarded as the subjects of industrial disputes, and dealt with by the Commission. The 1997 amendments introduced an earlier version of s31(1B), empowering a commissioner to make an order requiring an employer to pay compensation to an employee if he or she considered that the employee had been unfairly dismissed and that reinstatement was impracticable. Until the commencement of the 2000 amendments, there was no express requirement that a commissioner not order compensation instead of reinstatement or re-employment only if reinstatement or re-employment was impracticable. That requirement was introduced, in s30(10), by the 2000 amendments. Those amendments also introduced s30(9), which provides that the "principal remedy" in such cases is reinstatement or re-employment, and the present s30(1B), which expressly provides for reinstatement or re-employment to be ordered if the commissioner believes such a course to be appropriate, and for compensation to be ordered if the commissioner believes reinstatement or re-employment is impracticable. The evident intention of Parliament was to prevent commissioners from too readily ordering the payment of compensation for the loss of a worker's employment, by requiring the ordering of reinstatement or re-employment whenever such a course was appropriate or not impracticable. It does not follow that Parliament intended a commissioner ordering reinstatement not to have the power to make an ancillary order, or an order that went further than simply ordering the employer to reinstate the employee. For example, I do not think it would follow that a commissioner may not now make an order that a reinstated employee be treated as having seniority or career progression rights as if his or her employment had not been terminated or interrupted. More significantly, there is nothing in the history of the legislation nor either of the relevant second reading speeches (House of Assembly, 29 April 1997, 31 August 2000) to suggest that Parliament did not intend commissioners to have whatever power s31(1) confers to make ancillary orders or wider orders in such cases, including orders binding persons or entities other than employers."

Therefore, I hold that under subs31(1), the Commissioner had power to make an order against the appellant if she was of the opinion that anything should be required to be done, or that any action should be required to be taken, by the appellant for the purpose of settling the industrial dispute in respect of which the hearing had been convened. I repeat that even if the order that was made against the appellant was inappropriate and should not have been made for other reasons, if it was within jurisdiction and power this Court must allow it to stand, for the grounds of appeal do not otherwise attack the order on its merits.

I make the following comments without the benefit of submissions. It seems to me that if Newemploy and the appellant complied with the order and reinstated the employment arrangements, thereafter it may nevertheless have been within the power of the appellant to unilaterally, and without the connivance or collusion of Newemploy, to terminate the hiring arrangement it had with Newemploy. I also tend to the view that the order was unreasonable insofar as it related to the appellant. But those views are of no consequence to the outcome of the appeal.

Vagueness and uncertainty

The matter was before the learned judge as an application for review under the Judicial Review Act. One of the grounds of the application was that the Commissioner erred in law in that she made orders purporting to reinstate the employment arrangements which existed immediately prior to 2 April 2003, without making sufficient findings to define those arrangements, and that the orders were unenforceable due to uncertainty. Under the Judicial Review Act, s20(h), "an exercise of power in such a way that the result of the exercise of the power is uncertain" constitutes an improper exercise of a power for the purpose of s17(2)(e).

The order, insofar as it was directed to the appellant, was not so uncertain as to amount to an improper exercise of the power to make an order. I think that it is sufficiently clear as to require that in conjunction with Newemploy, the two companies would arrange for a situation whereby the employees would continue to be employed by Newemploy and the appellant would continue to hire their services. I agree with what was said by the learned judge: "It was not necessary for the Commissioner to specify what her order required in any greater detail for it to be meaningful. In the event of it being alleged that Blue Ribbon had failed to comply with the order in any respect, it would be necessary to prove beyond reasonable doubt that particular arrangements were in force prior to 2 April 2003, and that Blue Ribbon had not reinstated such arrangements. Obviously it is implicit in the order that Blue Ribbon is required to do no more than to take all steps within its power to reinstate the arrangements that existed before 2 April 2003."

Conclusion

For the reasons I have expressed I would dismiss the appeal.
File No FCA 19/2004

BLUE RIBBON PRODUCTS PTY LTD (ABN 42 009 079 688)
v TASMANIAN INDUSTRIAL COMMISSION and AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, TASMANIAN BRANCH

REASONS FOR JUDGMENT FULL COURT

SLICER J
7 December 2004

This appeal concerns the power of the Industrial Commission to make orders which affect a non-party to its proceedings as part of its determination of remedies intended to resolve an industrial dispute. The order made was one requiring the appellant and the party which was the subject of the original application to re-instate the employment arrangements that existed prior to the dispute. An order was made affecting the employer but in the case of the appellant, the "re-instatement" of arrangements required it to permit entry by members of the workforce onto its site.

History of proceedings

Previous to December 2001, the employees, who were represented by the second respondent to this appeal, were employed by Blue Ribbon Meat Products Pty Ltd, a different company to the appellant. In that month it was placed into administration. The employees were engaged by Newemploy Pty Ltd ("Newemploy") which then entered into an agreement with the appellant for the provision of labour required for the operation of the plant. Newemploy engaged the employees on a three month contract, followed by 12 month "training" contracts. Concurrently the appellant engaged "independent contractors" through other labour service providers. In early 2003, the appellant decided that it wished to operate with a labour force comprised entirely of "independent contractors". Accordingly, Newemploy wrote to the persons subject to contract advising that upon the expiration of the "training contracts", they would not be further employed and informing them that they may wish to register as potential independent contractors. A fresh agreement was entered into between the appellant and Newemploy on 31 March in which the latter undertook to provide the services of contractors until 1 April 2004, subject to certain powers and rights of prior termination.

On 3 April, employees who are the subject of the dispute giving rise to these proceedings were prevented from entering the processing plant unless they agreed to contract as "independent contractors". On 4 April 2003, the second respondent applied to the President of the Industrial Commission for the convening of a hearing in respect of an industrial dispute involving Newemploy. Following the formal commencement of the hearing, the second respondent gave notice that it would seek additional orders against the appellant. The appellant was subsequently given leave to appear through counsel.

Following the hearing, the Commissioner found that the "independent contractor arrangements":

"… were a contrivance designed to avoid employment obligations and that both Newemploy and Blue Ribbon Products were involved in creating the contrivance"

and ordered that:
"… pursuant to the provisions of section 31 of the Industrial Relations Act 1984, that Newemploy Pty Ltd, 29 Killafaddy Road, Launceston, Tasmania, 7250, (registered office c/o Pitcher Partners, Level 6, 161 Collins St, Melbourne, Victoria, 3000) and Blue Ribbon Products Pty Ltd, 29 Killafaddy Road, Launceston, Tasmania, 7250 (registered office c/o Pitcher Partners, Level 6, 161 Collins St, Melbourne, Victoria, 3000) reinstate the employment arrangements which existed immediately prior to 2 April 2003 in respect of [named persons] …
Newemploy Pty Ltd pay to the employees the amount of wages they would have received from 2 April 2003 to the date of the implementation of these Orders, [less than certain identified amounts]."

There followed an appeal to the Full Bench of the Commission and proceedings commenced in this Court on certain procedural issues which resulted in the reasons for judgment [2003] TASSC 142. The concurrent application for judicial review made in October 2003 was determined by Blow J for reasons published in [2004] TASSC 28. This appeal is against the order made adverse to the appellant, dismissing the application for review. After publication of the reasons for judgment delivered on 29 March 2004, the Full Bench of the Commission dismissed the appeal by Newemploy, which had been placed in liquidation on 4 May 2004, against the order that it pay accrued wages to the relevant persons.

Notice of appeal

The appellant claims that the decision of the learned primary judge was erroneous. The grounds of appeal will be considered under the headings of jurisdiction and power (grounds 1 – 8), misapplication of statutory power (grounds 9 and 10), wrongful joinder (ground 11) and uncertainty of order (ground 12).

In his reasons for judgment, the learned primary judge:

(1)Accepted that there had existed an industrial dispute between the employees and the appellant and defined as the critical question, at par26:
"… whether, even if Blue Ribbon was not a party to the industrial dispute, the Commissioner had the power to make an order against Blue Ribbon in relation to reinstatement of the employment of the employees by Newemploy. The only possible source of such a power is s31(1), which empowered the Commissioner, if she was 'of the opinion ... that anything should be required to be done, or that any action should be required to be taken, for the purpose of ... settling the industrial dispute in respect of which the hearing was convened', to 'direct that that thing is to be done or that action is to be taken'."
(2)Having considered the High Court's decisions in Brown v Rezitis (1970) 127 CLR 157 and Re The Amalgamated Metal Workers Union of Australia and Others; Ex Parte The Shell Company of Australia Limited and Others (1992) 174 CLR 345 (the latter case dealing with the susceptibility of trustees of a superannuation fund to orders sought against an employer) he believed that authority supported:
"… the proposition that a statute conferring arbitral power in relation to the prevention and settling of industrial disputes upon an industrial relations tribunal in general terms may, at least in some circumstances, properly be so widely construed as to empower such a tribunal to make orders that are binding, not just upon employers, but also upon persons or entities who have some sort of commercial relationship with an employer."
(3)His consideration of the terms of the statute and the application of principle led him to conclude at 44:
"… when an industrial dispute exists as to the termination or cessation of the employment of workers employed by a labour hire company, an order requiring the entity to whom those workers' labour services had been provided to do something, or to take some action, for the purpose of effecting their reinstatement as employees is within the scope of s31(1). A commissioner has the power to make such an order in such circumstances."
(4)He rejected the appellant's contentions as to joinder and associated procedural issues and accepted that the term of the impugned order was sufficiently clear so as to permit implementation.

The legislation

Following the decision of the Full Court in New Town Timber & Hardware Pty Ltd v Gurr (1995) 5 Tas R 71, Parliament enacted substantive amendments to the Industrial Relations Act 1984 ("the Act"). The statutory provisions relevant to this appeal read:

"'industrial dispute' means a dispute in relation to an industrial matter ¾
(a) that has arisen; or
(b) that is likely to arise or is threatened or impending;

'industrial matter' means any matter pertaining to the relations of employers and employees and, without limiting the generality of the foregoing, includes ¾
(a)   a matter relating to ¾
(i)    the mode, terms and conditions of employment; or
(ii)   the termination of employment of an employee or former employee; or
(iii) the reinstatement or re-employment of an employee or a former employee who has been unfairly dismissed; or
(iv) the payment of compensation to an employee or a former employee if the Commission determines that reinstatement or re-employment is impracticable."

The President and a Commissioner are afforded power and jurisdiction by s13 "as may be necessary or appropriate" for the purpose of the legislation, while the President is to allocate for hearing and determination applications in respect of industrial disputes (s15). The Commissioner is required to provide procedural fairness (s20) with jurisdiction "to hear and determine any matter arising from, or relating to, an industrial matter" (s19). The exercise of that jurisdiction "is not restricted to the specific claim made or to the subject-matter of the claim" (s20(3)), but in such an instance:

"(4) Where the Commission, in deciding any matter before it, proposes or intends to take into account any matter or information that was not raised before it on the hearing of the matter, the Commission shall, before deciding the matter, notify the parties concerned and afford them the opportunity of being heard in relation to that matter or information."

Parliament has authorised the Commission to regulate its own procedure and stated clear powers for its effect (s21). Central to the issues raised on this appeal are the provisions of the Act, ss30 and 31, which relevantly provide:
"30 ¾ (1) In this section ¾
'employee' includes a former employee;
(2) In considering an application in respect of termination of employment, the Commission must ensure that fair consideration is accorded to both the employer and employee concerned and that all of the circumstances of the case are fully taken into account.

…

31 ¾ (1B) If a Commissioner, in hearing an industrial dispute relating to termination of employment, finds that an employee or a former employee has been unfairly dismissed, the Commissioner may ¾
(a)if he or she believes it to be appropriate, order reinstatement or re-employment of the employee or former employee; or
(b)if in the Commissioner's opinion reinstatement or re-employment is impracticable, order that the employer pay the employee or former employee an amount of compensation, instead of reinstatement or re-employment, that the Commissioner considers appropriate in the circumstances, subject to section 30(12)."

Here the persons affected were employees of a company whose contracts had been taken over by Newemploy which, in turn, entered into a contract with the appellant. The Commission determined that their change of status was a contrivance. Irrespective of whether that finding was but a result of circular application, the finding itself did not afford jurisdiction as against the appellant simply because they were "former employees". No findings were made that they were "employees" at the time of dispute, nor that they were in disputation with the appellant. But the Commission determined that they were persons who:

"… had a reasonable expectation of continuing employment and that there was no valid reason for the termination … and that the terminations were procedurally unfair."

Jurisdiction and power

The grounds of appeal referable to this heading relevantly state:

(1)       Error in finding that:
"1    …
(a)   the first respondent had power to make orders that were binding on entities other than employers, employees and former employees; or further or alternatively
(b)   the Industrial Relations Act 1984 ('the Act'), s31 should be interpreted to enable the first respondent to make orders binding on entities capable of controlling or influencing the industrial relations decisions of employers or former employers; or further or alternatively
(c) the first respondent had power under the Act, s31(1) to make orders against the appellant, who was not a party to an industrial dispute, in relation to reinstatement of the employees concerned by Newemploy Pty Ltd ('Newemploy'), which company had been the employer of these employees."

(2) Error in the construction and application of the Act, s31:
(a)to require a person or entity to take action simply because the matter has "some industrial character" (ground 2);
(b)permitted enjoinment of a person or entity which was neither a party to the dispute nor the relationship of employment which, in turn, inhibited the power to order reinstatement or otherwise inform that person or entity (grounds 3 – 5).

(3)Construction of the Act does not permit a consequential effect of the relationship of employment to be the cause of an industrial dispute (grounds 6 and 7).
(4)The finding of "unfair termination" permitted remedies other than that of reinstatement (ground 8).

Jurisdiction

It is first necessary to distinguish between the issues of jurisdiction and power. The learned primary judge determined:

"… even if [the appellant] was not a party to the industrial dispute, the Commissioner had the power to make an order against [the appellant] in relation to reinstatement of the employment of the employees by Newemploy"

and found that the source of power was that provided by the Act, s31(1). The definition of an industrial matter is stated in extremely wide terms (s3(1)). The dispute here was central to the relationship of employer and employee. This was not a case of an indirect, consequential or remote effect of that relationship (R v Kelly; ex parte State of Victoria (1950) 81 CLR 64) nor of the status of employees as members of a union (R v Portus; Ex parte ANZ Banking Group Ltd (1972) 127 CLR 353). The appellant was the occupier of the premises at which the work to be performed by the employees was to be carried out. The appellant had engaged in a contractual relationship with Newemploy for the provision of labour. It closed its premises to the employees preventing them from undertaking that labour. Their relationship with Newemploy, in turn, was that of employment. That there was disputation with Newemploy and those employees did not necessarily involve the appellant. Questions of entitlements arising from statute or contract involved matters of capacity, willingness to perform tasks, availability and the terms of any existing agreement. The appellant directly involved itself in those questions by effectively precluding the employees from their capacity to perform work. A member of an employer organisation, or the organisation itself, is prohibited from counselling, taking part in "… or assist, directly or indirectly, any lock-out on account of any matter for which provision is made in an award …" (s25(4)). The Act, s19, provides:
"… the Commission has jurisdiction to hear and determine any matter arising from, or relating to, an industrial matter"

and affords for that purpose, the power to:
"(c) conduct hearings for settling industrial disputes."

The interest of others with a direct or statutory interest in the proceedings is recognised by the Act, s27. The Commission has jurisdiction to determine matters involving a "former employee" (s29(1A)). The Commission has certain powers to commence proceedings on its own motion (s25(4)). It is entitled to direct that "organisation or person be summoned to attend [the] proceedings" (s21(2)(b)). In this case, following the issue of a summons directed to a director of the appellant on 24 June 2003, the appellant sought, through counsel, and was granted, leave to appear in accordance with the Act, s27(5) and (6).

The dispute affected the capacity of the employees to fulfil the terms and obligations of the "relations of employers and employees" (Re Alcan Australia Ltd; ex parte Federation of Industrial Manufacturing and Engineering Employees (1994) 181 CLR 96) and their industrial relationship directly with another and their workplace (R v Kelly (supra)). The terms "arising from or relating to" used by Parliament are similar, if not wider than, that of "pertaining to" as used in comparable legislation, and whilst not open ended (Electrolux Home Products v Australian Workers' Union [2004] HCA 40), include matters:

"… connected with the relationship between an employer in his capacity as an employer and an employee in his capacity as an employee in a way which is direct and not merely consequential … capable of being the subject of an industrial dispute."

(Re Manufacturing Grocers' Employees Federation of Australia; Ex Parte Australian Chamber of Manufacturers (1986) 160 CLR 341 at 353, see generally Federated Clerks' Union (Aust) v Victorian Employers' Federation (1984) 154 CLR 472.)

The dispute here involving the workplace and its physical closure was an industrial dispute within the meaning of the Tasmanian legislation and the Commission had jurisdiction to conduct proceedings in relation to the dispute and its possible resolution.

Joinder of interested party

The status of the appellant, in consequence of its being granted leave to appear before the Commission, was never determined. On 22 May 2003, the second respondent gave notice that it might seek orders against the appellant in the course of the proceedings. On 2 June, the second respondent stated during the course of the hearing, apparently attended by counsel for the appellant, that the appellant ought be made a party. Given the obligation to ensure that affected parties ought be afforded the opportunity to be heard, notice was given on 3 June in accordance with the Act, s29(2)(b). On 30 June, the appellant appeared through counsel contending that there was no power to join it as a party and that in any event, given the stage of the proceedings, it would not be appropriate to so do. The status of the appellant was never determined. The learned primary judge did not consider it necessary to determine that status since, in his approach:

"The critical question is whether, even if Blue Ribbon was not a party to the industrial dispute, the Commissioner had the power to make an order against Blue Ribbon in relation to reinstatement of the employment of the employees by Newemploy. The only possible source of such a power is s31(1), which empowered the Commissioner, if she was 'of the opinion ... that anything should be required to be done, or that any action should be required to be taken, for the purpose of ... settling the industrial dispute in respect of which the hearing was convened', to 'direct that that thing is to be done or that action is to be taken'."

His Honour accepted that there was no suggestion that Newemploy was a subsidiary of the appellant, but concluded that the terms of the legislation permitted the making of orders binding "upon persons or entities who have some sort of commercial relationship with an employer". Given my conclusion that the legislation affords power to bind a non-party, it is not necessary to reach a firm conclusion on the question, and I will, for the purpose of this determination, accept, absent a formal order made by the Commission during the course of the proceedings, that the appellant was not joined as a party. A party is not defined by the Act, s3. A "party" to a registered enterprise agreement can be identified by reference to s61D, but the agreement itself is binding on:

"… each person employed in the enterprise for which the agreement was made who is employed in a class of employment to which the agreement relates" (s61N(b)).

Where an application for the making or variation of an award is made, notice must be given "to all other organizations which have an interest in the application" (s23(2)(a)) who presumably become parties either by response or joinder. The jurisdiction of the Commission to "conduct hearings for settling industrial disputes" (s19(2)(e)) requires procedural fairness and equity, which includes the requirement that it shall:

"… do such things as appear to it to be right and proper for effecting conciliation between parties, for preventing and settling industrial disputes, and for settling claims by agreement between parties"

and in the case of a matter not previously raised during the hearing must:
"… notify the parties concerned and afford them the opportunity of being heard …". (Section 20(4).)

The terms "parties", "persons with an interest", or "commercial relationship" are used in differing contexts but the legislative scheme is concerned with both procedural fairness, rights of intervention, and the power of the Commission to settle disputes, the cause of which might be outside the province of the person or entity which initiates or is named as respondent to the proceedings.

The Commission had power to join the appellant as a party to the proceedings. That it did not formally do so affects power, not jurisdiction. Ground 11 is not sustained.

Statutory interpretation

Grounds 9 and 10 of the notice of appeal claim error in that:

"9The learned primary judge erred in taking into account the provisions of the Act, s20(1)(a) and (b) to construe the jurisdictional limits of the first respondent to make orders under s31(1).
10The learned primary judge erred in finding that the first respondent had the power to make an order against the appellant when the appellant was neither a party nor an entity in respect of which the President of the first respondent convened the hearing of the industrial dispute under s29."

The general power afforded by the Act, s20(1)(a) and (b), ought not be construed as limited by the operation of s31. The employees had a right to seek redress through the Commission. In Electrolux (supra), Gleeson CJ adopted a qualified approach to the method of statutory interpretation. He stated his position to be:

"Reliance was placed in argument upon what was said to be a general principle of construction that, where a statute takes away or interferes with common law rights, then it should be given, if possible, a narrow interpretation. See, for example, Melbourne Corporation v Barry (1922) 31 CLR 174 at 206. The generality of that assertion of principle requires some qualification. It is true that courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. Coco v The Queen (1994) 179 CLR 427 at 437; Plaintiff S157/2002v Commonwealth (2003) 211 CLR 476 at 492 [30]. It is also true that there is a presumption, relevant for example to the construction of privative clauses, that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied. Public Service Association (SA) v Federated Clerks' Union (1991) 173 CLR 132 at 160; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 492-493 [32]. However, as McHugh J pointed out in Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at 284 [36] modern legislatures regularly enact laws that take away or modify common law rights. The assistance to be gained from a presumption will vary with the context in which it is applied. For example, in George Wimpey & Co Ltd v British Overseas Airways Corporation [1955] AC 169 at 191, Lord Reid said that in a case where the language of a statute is capable of applying to a situation that was unforeseen, and the arguments are fairly evenly balanced, 'it is ... right to hold that ... that interpretation should be chosen which involves the least alteration of the existing law'. That was a highly qualified statement and, if it reflects a presumption, then the presumption is weak and operates only in limited circumstances.
In Coco v The Queen 1994) 179 CLR 427 at 437, Mason CJ, Brennan, Gaudron and McHugh JJ said:
'The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.' (footnote omitted)
The joint judgment in Coco went on to identify as the rationale for the presumption against modification or abrogation of fundamental rights an assumption that it is highly improbable that Parliament would 'overthrow fundamental principles, infringe rights, or depart from the general system of law' without expressing its intention with 'irresistible clearness' The quotation is from Potter v Minahan (1908) 7 CLR 277 at 304, where O'Connor J cited a passage from Maxwell on Statutes, 4th ed (1905) at 122. In R v Home Secretary; Ex parte Pierson [1998] AC 539 at 587, 589, Lord Steyn described the presumption as an aspect of the principle of legality which governs the relations between Parliament, the executive and the courts. The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law."

On that approach, ground 9 ought fail. This is not a case requiring refinement of a restricting or inhibitative provision. The general is not modified by the particular, but rather the two provisions are complementary. The Act, s31, defines the ambit of disputation and affords remedy. It contains its own restrictions (s31(2)), whereas s20(1)(a) and (b) provide for the procedural basis of determination and the performance of "such things as appears to it to be right and proper for effecting conciliation". They provide no independent or disjunctive source of power, but can be employed as a means of statutory interpretation in the sense stated in Electrolux.

The question of the ambit of the power of delegation or referral by the President does not require detailed consideration for the determination of this appeal. The general powers of the President to allocate and refer are stated by the Act, s15. She was entitled, by virtue of s15(1)(d), to:

"allocate for hearing and determination by a Commissioner applications in respect of industrial disputes".

The allocated Commissioner had power to exercise the functions necessary for that determination. That might involve joinder or, as here, notice to an affected person or entity. It makes little sense for an application for joinder to require reference back to the President and a fresh allocation or reference to be made. Such would inhibit the operation of s21. Ground 10 ought be dismissed.

Power

The learned primary judge dealt with the question of power to make an order against the appellate in the following terms:

"Having regard to the purpose of the relevant provisions in the Act, the ordinary meaning of s31(1), the history of the relevant legislative provisions, and the other matters I have referred to, I think that Parliament intended s31(1) to operate very widely in its scope, and to enable orders to be made imposing requirements to take positive action upon such persons or entities as commissioners think appropriate according to the circumstances of particular cases, provided only that there must be some industrial character to any thing required to be done or action required to be taken. I think it would be contrary to the intention of Parliament as to the wide scope of the Commission's powers for the consumers of labour services to be able to escape the jurisdiction of the Commission by taking the simple step of obtaining their required labour services from labour hire companies, rather than by employing workers directly. In my view, when an industrial dispute exists as to the termination or cessation of the employment of workers employed by a labour hire company, an order requiring the entity to whom those workers' labour services had been provided to do something, or to take some action, for the purpose of effecting their reinstatement as employees is within the scope of s31(1). A commissioner has the power to make such an order in such circumstances."

The orders made by the Commission were that:

"… pursuant to the provisions of section 31 of the Industrial Relations Act 1984, that Newemploy Pty Ltd, 29 Killafaddy Road, Launceston, Tasmania, 7250, (registered office c/o Pitcher Partners, Level 6, 161 Collins St, Melbourne, Victoria, 3000) and Blue Ribbon Products Pty Ltd, 29 Killafaddy Road, Launceston, Tasmania, 7250 (registered office c/o Pitcher Partners, Level 6, 161 Collins St, Melbourne, Victoria, 3000) reinstate the employment arrangements which existed immediately prior to 2 April 2003 in respect of the persons named below:
[names listed]
FURTHER that Newemploy Pty Ltd pay to the employees the amount of wages they would have received from 2 April 2003 to the date of the implementation of these Orders, less any income from paid work performed during that period, but not including any government benefits received during that period, such details to be confirmed by statutory declaration; and
FURTHER that the terms of these orders be complied with by no later than the close of business on 22 October 2003."

The Commission noted the merit of the submission by the appellant that the wording of the draft order might be seen as ambiguous and in response stated that it intended:

"… to issues orders which do no more than restore the status quo in relation to the employment arrangements which existed in relation to the named employees prior to 2 April 2003."

The appellant claims the order to be one of reinstatement and hence beyond power. The Commission did not do so. The application by the second respondent claimed the circumstances to include:

"B The company has informed the fulltime employees concerned by letter that after the 2^ndApril 2003 the employees can register as independent contactors [sic] with the same company Newemploy Pty Ltd and they may be offered work if work is available by the companies [sic] clients. The company gave no written notice to other employees as listed but verbally terminated their employment on the 2^ndApril 2003 with a minutes [sic] notice. The employees listed Gene Dwyer to David Horder were locked out of the worksite on the 3^rdApril 2003 due to not signing on to become independent contractors. The resolution to this dispute is for the commission to issue an order instructing the employer to allow the employees listed to return to work with no loss of pay or entitlements."

The appellant had prevented employees from entering the worksite. The order of the Commission enjoined the appellant from continuing to so do and permitted the employees and Newemploy to pursue their interests absent intervention by another. The lock-out, a matter coming within the Act through s54, was one which arose from, or related to, an industrial matter within the meaning of s19. The primary matters were the inability of Newemploy to settle the disputation with its employees and the effect of the contractual relationship between Newemploy and the appellant concerning the status of employees. The appellant had directly intruded into those matters by its act of forbidding entry onto its premises. Although in Re The Amalgamated Metal Workers Union of Australia and Others; Ex Parte The Shell Company of Australia Limited and Others (supra) at 355, the High Court found it unnecessary:

"… to consider whether and, if so, in what circumstances, a person or company who is not an employer may be a party to a dispute with an organization of employees."

Mason CJ, Deane, Toohey and Gaudron JJ in their joint reasons for judgment added, at 355:
"Even so, the arguments made on behalf of the Shell Companies are to be considered in the light of the definition which directs attention to whether the dispute is 'about matters pertaining to the relationship between employers and employees' (emphasis added) and which extends to 'a situation likely to give rise' to an actual, threatened, impending or probable dispute of that kind."

In determining a "best endeavour" term requiring a corporation to take steps in relation to a superannuation fund controlled by trustees who were a separate legal entity, their Honours stated, at 357:

"It is convenient to turn first to that part of the first claim which requires that the Shell Companies use their 'best endeavours' to bring about amendments to the funds and otherwise take action with a view to ensuring that surplus funds are credited to fully vested accounts for the benefit of members. To that extent, the claim is directed to the superannuation benefits to which employees should ultimately be entitled. And as already indicated, that is a matter pertaining to the relationship between employers and employees"

and concluded that the issue came within the ambit of the legislation.

The general approach, based on principles of control, relationship and causative link in the area of industrial relations and disputation, was taken by Boulton J in Australian Municipal, Administrative, Clerical and Services Union v Ansett Australia Ltd [2001] AILR 1362. Here there is no specific exclusionary clause which limited the operation of the general powers afforded by the legislation (Downey v Trans Waste Pty Ltd(1991) 172 CLR 167). There was specific primary power afforded by the Act, s31B, permitting an order requiring Newemploy to reinstate employment. That order would have no effect if another entity in a contractual relationship with the employer for the provision of labour was able, by its continued conduct, to ignore the order. The order precluding a continued lock-out was not "inconsistent with the provisions of any Act dealing with the same subject matter". General power was afforded by the Act, s20(1)(b), and not restricted by the operation of s21(3). Termination was a primary matter (ss30, 31B) and efficacy attached to that power.

Terms of the order

The order was "not so vaguely worded that its meaning was uncertain". The appellant had varied its contractual relationship with Newemploy so as to permit only "independent contractors" to be provided by that entity. Newemploy had attempted to comply with that contractual term. The employees affected by these arrangements were "at least" former employees afforded certain rights and remedies by statute. The appellant proceeded to prohibit entry. The order made simply restored the position to that existing before the disputation. Its effect, as against the appellant, was clear, namely the prohibition of a continued "lock-out" and a continuation of a contractual relationship governing the status of the employees. The Commission stated the effect of the order to be a return to the status quo, the terms of which were, and remain, readily identifiable. Ground 12 of the notice of appeal has no merit and ought be dismissed.

Conclusion

The Commission had jurisdiction to hear and determine the matter and power to make the order complained of. In my opinion, the appeal ought be dismissed.
File No FCA 19/2004

BLUE RIBBON PRODUCTS PTY LTD (ABN 42 009 079 688)
v TASMANIAN INDUSTRIAL COMMISSION and AUSTRALASIAN MEAT
INDUSTRY EMPLOYEES UNION, TASMANIAN BRANCH

REASONS FOR JUDGMENT  FULL COURT
  EVANS J
  7 December 2004

I agree with the reasons for judgment prepared by Crawford J and would dismiss the appeal.