Blue Ribbon Products Pty Ltd v Tasmanian Industrial Commission (No 2)
[2004] TASSC 28
•29 March 2004
[2004] TASSC 28
CITATION:Blue Ribbon Products Pty Ltd v Tasmanian Industrial Commission (No 2)[2004] TASSC 28
PARTIES: BLUE RIBBON PRODUCTS PTY LTD
v
TASMANIAN INDUSTRIAL COMMISSIONAUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, TASMANIAN BRANCH
NEWEMPLOY PTY LTD
v
TASMANIAN INDUSTRIAL COMMISSIONAUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, TASMANIAN BRANCH
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M306/2003
M307/2003
DELIVERED ON: 29 March 2004
DELIVERED AT: Hobart
HEARING DATES: 25, 26 February 2004
JUDGMENT OF: Blow J
CATCHWORDS:
Administrative Law – Judicial review legislation – Jurisdiction and generally – "Decision" within Act's application – "Of an administrative character" – Tasmanian Industrial Commission – Orders made to settle industrial dispute – Reinstatement of employment arrangements.
Judicial Review Act 2000 (Tas), s4(1).
Aust Dig Administrative Law [11]
Industrial Law – Tasmania – Unfair dismissals, redundancy and termination of employment – Unfair dismissals – Remedies – Orders against company contracting with employer for provision of labour.
Industrial Relations Act 1984 (Tas), s31(1).
Aust Dig Industrial Law [1134]
REPRESENTATION:
Counsel:
Blue Ribbon Products Pty Ltd: M E O'Farrell
Newemploy Pty Ltd: P F McDermott
First Respondent: No Appearance
Second Respondent: K E Read
Attorney-General: P Turner
Solicitors:
Blue Ribbon Products Pty Ltd: Rae & Partners
Newemploy Pty Ltd: Page Seager
First Respondent: Director of Public Prosecutions
Second Respondent: Phillips Taglieri
Attorney-General: Director of Public Prosecutions
Judgment Number: [2004] TASSC 28
Number of Paragraphs: 61
Serial No 28/2004
File Nos M306/2003M307/2003
BLUE RIBBON PRODUCTS PTY LTD
v TASMANIAN INDUSTRIAL COMMISSION
AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION,
TASMANIAN BRANCH
NEWEMPLOY PTY LTD v TASMANIAN INDUSTRIAL COMMISSION AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION,
TASMANIAN BRANCH
REASONS FOR JUDGMENT BLOW J
29 March 2004
These proceedings concern a decision of the Tasmanian Industrial Commission ("the Commission"), constituted by Commissioner Shelley. At about the end of 2001, Blue Ribbon Products Pty Ltd ("Blue Ribbon") acquired an existing abattoir and meat processing business. The workforce of that business had been directly employed by its previous proprietor, but Blue Ribbon entered into an agreement with Newemploy Pty Ltd ("Newemploy") for that company to provide it with the labour it needed. Subsequently Newemploy entered into individual training agreements with some 17 workers. Each such agreement was for a term of 12 months from 2 April 2002. Each of those workers worked as an employee of Newemploy in the business of Blue Ribbon for that period. Newemploy took the view that the employment of each of those workers would come to an end upon the expiry of the 12-month training agreements. It proposed that each of the workers thereafter be placed on a list of skilled independent contractors, and that those who were on that list might be found work with Blue Ribbon, not as employees of Newemploy or Blue Ribbon, but as independent contractors. The assertion of such new arrangements by Newemploy gave rise to an industrial dispute. By a written notice dated 4 April 2003, the second respondent ("the AMIEU") applied to the President of the Commission pursuant to the Industrial Relations Act 1984 ("the Act"), s29(1), for a hearing in respect of an industrial dispute. After conducting a hearing, Commissioner Shelley made orders on 1 October 2003 that Newemploy and Blue Ribbon "reinstate the employment arrangements that existed immediately prior to 2 April 2003" in respect of 17 named persons, and that Newemploy pay them "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".
Blue Ribbon and Newemploy have applied separately for those orders to be reviewed pursuant to the Judicial Review Act 2000. In respect of each application, the Commission filed a notice of submission under the Supreme Court Rules 2000, r777G, and took no part in the hearing. The AMIEU opposed the applications. The Attorney-General intervened pursuant to the Judicial Review Act, s39, and applied for each of the applications to be dismissed on the basis that that Act did not apply to the orders of the Commission. I heard the Attorney-General's applications immediately before hearing the two principal applications together, and reserved my decisions in respect of all applications.
Applicability of the Judicial Review Act 2000
Blue Ribbon and Newemploy have sought to invoke the jurisdiction conferred by the Judicial Review Act, s17(1), which provides as follows:
"17 ¾ (1) A person who is aggrieved by a decision to which this Act applies may apply to the Court for an order of review relating to the decision."
Subject to some exceptions that are not presently relevant, the jurisdiction conferred by s17(1) is governed by s4(1), which reads as follows:
"4 ¾ (1) In this Act,
'decision to which this Act applies' means a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion)."
Counsel for the Attorney-General, Mr Turner, submitted that the Commissioner's decision was not a decision of an administrative character, but that it was a decision of a judicial character. He accepted that the words "of an administrative character" referred to the traditional characterisation of decisions as either legislative, administrative or judicial. Other counsel did not submit to the contrary. Clearly s4(1) has been modelled on the equivalent provision in the Administrative Decisions (Judicial Review) Act 1977 (Cth), s3(1). Counsel for each applicant submitted that the decision in question was a decision of an administrative character. Counsel for the AMIEU did not wish to be heard on the point.
In order to determine whether the Commissioner's decision was one of an administrative character, it is necessary to consider its statutory context. The nature of the jurisdiction of the Commission is described in the long title to the Act, which begins as follows:
"An Act to provide for the establishment of a Tasmanian Industrial Commission having a jurisdiction to hear and determine matters and things arising from, or relating to, industrial matters, including the making of awards, the conduct of hearings and the settling of disputes …".
The Commission is established by s5. The qualifications for Commissioners are listed in s5(4). By s5(4)(a), each is required to have had extensive experience in industrial relations, in the opinion of the Governor. By s5(4)(c), each is required, by reason of qualifications, experience and standing in the Australian community, to be a fit and proper person to discharge the functions of a Commissioner, in the opinion of the Governor. By s5(4)(b), each is required, loosely speaking, either (i) to be a barrister or solicitor of at least five years' standing; or (ii) to have served at a high level in an industry, the trade union movement, or the public service; or (iii) to have educational qualifications of substantial relevance to the functions of a Commissioner. By s9, each Commissioner has, in the performance of his or her functions as a Commissioner, the same protection and immunity as a judge. Under s13(2), a Commissioner sitting or acting alone constitutes the Commission and may exercise all the powers and jurisdiction of the Commission. Under s19(1), the Commission has jurisdiction to hear and determine any matter arising from, or relating to, an industrial matter. Section 19(2) lists powers that the Commission has for the purposes of s19(1) including, under s19(2)(c), the power to conduct hearings for settling industrial disputes. By s20(1)(a), the Commission is required to "act according to equity, good conscience, and the merits of the case without regard to technicalities or legal forms". By s20(1)(b), the Commission is required to "do such things as appears 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". By virtue of s20(1)(c), the Commission is not bound by any rules of evidence.
The jurisdiction of the Commission to conduct hearings for settling disputes is governed by Div4 of PtII of the Act, which comprises ss29 – 31. Under s29(1), an organisation, (ie, one registered under PtV), employer, employee or the Minister may apply to the President of the Commission for a hearing before a commissioner in respect of an industrial dispute. Upon receiving such an application, the President is required by s29(2)(a) to allocate a commissioner for hearing the application, and by s29(2)(b), to "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". Under s29(3), the Commission may attempt to conciliate the dispute at any stage of the proceedings, either of its own motion or at the request of one or more of the parties to the proceedings. A general power to make orders for the purpose of preventing or settling industrial disputes is conferred by s31(1), which reads as follows:
"31 ¾ (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."
The Act does not contain any provision empowering the Commission to enforce orders made under s31, but s31(5) provides as follows:
"(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."
The Act does not empower the Commission to alter or reconsider its decisions, but s70 makes provision for appeals to the Full Bench of the Commission from decisions and orders of commissioners. Section 70(1A) provides that the Full Bench is not to uphold an appeal unless the commissioner made a legal error, acted on a wrong principle, gave weight to an irrelevant matter, gave insufficient weight to a relevant matter, or made a mistake as to the facts; or the decision was plainly unreasonable or unjust.
In New Town Timber & Hardware Pty Ltd v Gurr (1995) 5 Tas R 71, the Full Court held that the Commission had no jurisdiction to entertain an application by a worker seeking financial compensation for his dismissal, but not seeking reinstatement. As a result of comments made in the judgments in that case, the Act was amended by the Industrial Relations Amendment Act 1997 to include new provisions in relation to the termination of employment. Further new provisions on that subject were inserted by the Industrial Relations Amendment Act 2000. As a result of those amendments, the definition of "industrial matter" in s3(1) now contains the following:
"'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; ...".
As a result of the 2000 amendments, the Act now contains the following provisions in 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 ¾
(a) the capacity, performance or conduct of the employee; or
(b) the operational requirements of the employer's business.
…
(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 [sic] the Commission finds to have been unfairly dismissed only if, in the Commission's opinion, reinstatement or re-employment is impracticable."
As a further result of the 2000 amendments, s31, which provides for orders arising from hearings, now contains the following subsection:
"(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)."
Mr Turner identified a number of factors which, he argued, weigh in favour of the Commissioner's decision being characterised as judicial in character. The proceedings before the Commission resembled court proceedings in a number of respects. There was a hearing at which witnesses gave evidence and were cross-examined, and at which submissions were made on behalf of the represented persons or parties, following which the Commissioner made orders. Mr Turner submitted that the proceedings involved the enforcement of a statutory right created by s30(3), ie, a right of the relevant employees not to have their employment terminated unless there was a valid reason for its termination within the scope of that subsection. Mr Turner submitted that the Commissioner made a determination as to the relevant employees' existing rights, and went on to grant remedies provided for in the Act, namely reinstatement and compensation, as referred to in s30(9) and (10) respectively. He submitted that those remedies were analogous to a mandatory injunction and damages respectively. He pointed out that cases before the Commission involved questions of law, and sometimes required the use of analytical legal skills. He submitted that decisions of the Commission were binding because s31(5) makes it an offence for a person to contravene, or fail to comply with, a direction contained in an order under s31. He relied on the fact that the Commission does not have the power to alter its decisions on request, the fact that appeals to the Full Bench are not dealt with by way of hearings de novo, and the fact that the grounds upon which such appeals can be upheld are limited by s70(1A).
The wording of the Constitution of the Commonwealth of Australia has given rise to a body of case law as to the factors that should be taken into account in deciding whether a particular statutory power constitutes part of the judicial power of the Commonwealth, as distinct from administrative (or executive) power, and as distinct from legislative power. In Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434, the High Court was called upon to consider the validity of legislation conferring powers on the Commonwealth Court of Conciliation and Arbitration. Under the Constitution, s71, the "judicial power of the Commonwealth" may only be exercised by a court. The majority of the seven judges held that the tribunal in question was not a court capable of exercising the judicial power of the Commonwealth. Six of the seven judges (Griffiths CJ, Isaacs, Rich, Higgins, Gavan Duffy and Powers JJ; Barton J dissenting) held that the arbitral provisions of the legislation in question did not provide for the exercise of judicial power. Four of the seven judges (Barton, Isaacs, Rich and Powers JJ; Griffiths CJ, Higgins and Gavan Duffy JJ dissenting) held that the enforcing provisions of the legislation did provide for the exercise of judicial power. The nature of arbitral power, as distinct from judicial power, was explained by Isaacs and Rich JJ in the following passage at 464 – 465:
"The two functions therefore are quite distinct. The arbitral function is ancillary to the legislative function, and provides the factum upon which the law operates to create the right or duty. The judicial function is an entirely separate branch, and first ascertains whether the alleged right or duty exists in law, and, if it binds it, then proceeds if necessary to enforce the law. Not only are they different powers, but they spring from different sources in the Constitution. The arbitral power arises under sec 51 (xxxv); the judicial power under sec 71. The latter section contains, in the words "such other Federal Courts as the Parliament creates," the implied grant of power to create Courts other than the High Court. There is no other grant of that power in the Constitution — except as to territories (sec 122). The two powers being distinct and separate in nature and origin, it follows that, when an award is once made, the dispute is settled and the arbitral function is at an end. Variation of the award is, of course, an act of the same nature. And when the award is made and the right established, the law presumes the parties will obey it. Enforcement by a Court is an entirely separate matter. It arises on breach or threatened breach. But that is the case with every right. A right of property or a contractual right may exist, and, if violated, the law provides for its enforcement. But breach is not presumed. It follows that enforcement is in its nature an entirely separate process from the creation of the right."
In that case, four of the seven judges (Isaacs and Rich JJ at 470 – 471, Higgins J at 476 – 477, and Powers J at 489) expressed the view that the making of a binding award, enforceable in courts of summary jurisdiction, did not amount to an exercise of the judicial power of the Commonwealth.
In Saarinen v University of Tasmania (1997) 7 Tas R 154 at 177, Underwood J, with whose reasons Cox CJ agreed, said that the power of a commissioner to make an order under s31 for the purpose of settling an industrial dispute was "arbitral, not judicial".
In Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, the High Court held that certain provisions in the Racial Discrimination Act 1975 (Cth) were invalid because they purported to vest judicial power in the respondent commission ("the HREOC"). However the role of the HREOC under that legislation was markedly different from the relevant role of the Tasmanian Industrial Commission under the Act. The HREOC was purportedly empowered to decide controversies between parties as to existing rights and obligations, based upon existing facts and the law as set out in the Racial Discrimination Act. It was purportedly empowered to award damages, and to grant declaratory and injunctive relief. However the arbitral powers of the Tasmanian Industrial Commission are powers to create new rights and obligations, rather than powers to make determinations as to existing rights and obligations. It is also significant that the Racial Discrimination Act provided for determinations of the HREOC to be compulsorily registered in the Federal Court, whereupon they would be enforceable as orders of the Federal Court. Thus the legislation provided for the HREOC to make binding and enforceable determinations. Deane, Dawson, Gaudron and McHugh JJ said at 269 that "if it were not for the provisions providing for the registration and enforcement of the Commission's determinations, it would be plain that the Commission does not exercise judicial power". By contrast, the decisions of the Tasmanian Industrial Commission are enforceable only through the mechanism of a summary prosecution under s31(5). In the light of the judgments that I have referred to in Waterside Workers' Federation of Australia v J W Alexander Pty Ltd (supra), it is clear that the s31(5) enforcement regime is consistent with arbitral power, as distinct from judicial power, being exercised.
In Luton v Lessels (2002) 210 CLR 333, the High Court held that the power exercisable by the Child Support Registrar under the Child Support (Assessment) Act 1989 (Cth) and the Child Support (Registration and Collection) Act 1988 (Cth) did not involve the exercise of judicial power. In reaching that conclusion, all of the judges (Gleeson CJ, with whom McHugh J agreed, at 345, Gaudron and Hayne JJ at 358, Kirby J at 374, and Callinan J at 389) took into account the fact that the powers of the Registrar did not involve the determination of pre-existing rights and obligations, but involved the creation of new rights and obligations for the future. The fact that the Registrar cannot enforce his or her own assessments and determinations was also relied upon by Gleeson CJ at 346, Kirby J at 375, and Callinan J at 389. It was also significant in that case that there was a lack of finality to the Registrar's assessments and determinations ¾a factor not present in this case.
In my view Waterside Workers' Federation of Australia v J W Alexander Pty Ltd (supra) establishes beyond doubt that, prior to the 1997 amendments, the powers of commissioners to make orders under s31 for the purpose of preventing and settling industrial disputes were arbitral, rather than judicial, in nature. Although the Act now contains detailed provisions relating to disputes as to the termination of employment, I do not think that those provisions have resulted in orders for the reinstatement, re-employment or compensation of former employees having become orders of a judicial character, rather than orders of an administrative character. They are still orders creating new rights and obligations. Whilst s30(3) does create obligations on employers that exist prior to, and irrespective of, the initiation of proceedings under s29, and whilst the discretion of the Commission may have been fettered by the 2000 amendments, an order for reinstatement, re-employment or compensation remains an order creating new rights and obligations for the purpose of settling an industrial dispute. Given that that is the nature of such an order, and that it may be enforced only by a summary prosecution under s31(5), I think that, consistently with the High Court authorities that I have referred to, decisions whereby such orders are made must properly be characterised as decisions of an administrative character, despite the factors identified by Mr Turner that weigh in favour of them being characterised as judicial in character.
It follows that the decision under review is one to which the Judicial Review Act applies. The applications by the Attorney-General must therefore be dismissed.
The proceedings before the Tasmanian Industrial Commission
On 4 April 2003 the AMIEU made its application under s29(1) for a hearing in respect of the termination of the employment of the relevant employees. In that application, Newemploy was named as the employer of the relevant employees, and "the Blue Ribbon site" was mentioned, but Blue Ribbon (ie, the applicant company) was not. The President allocated the application to Commissioner Shelley for hearing, pursuant to s29(2)(a), and caused notices to be sent to the AMIEU, Newemploy, and the Minister for Justice and Industrial Relations pursuant to s29(2)(b). The President did not exercise her powers under s29(2)(a) or (b) again at any later time in relation to the relevant workers. The hearing commenced on 8 April 2003 and continued on 5, 6 and 7 May 2003. On 22 May 2003 the AMIEU wrote to the Commissioner submitting that the Commission had jurisdiction "to make orders against a third party who is not the direct employer", and requesting that a summons be directed to Blue Ribbon requiring it to appear when the hearing resumed on 3, 4 and 5 June 2003. On 22 May 2003 the Commissioner issued a summons addressed to John Hadden, a director of Blue Ribbon, summoning him to appear on those dates. On 24 June 2003 the Commissioner issued a further summons to Mr Hadden requiring his attendance on 1 and 2 July 2003. On 3 June 2003 the Acting Registrar sent a notice of hearing in relation to the AMIEU's application to the AMIEU, Newemploy and Blue Ribbon, amongst others, showing that the proceedings were listed for a hearing on 30 June, 1 and 2 July 2003. On 18 June 2003 the Acting Registrar sent a similar notice of hearing to the same entities and individuals in relation to a hearing on 3 and 4 July 2003.
On 1 October 2003, the Commissioner made the decision under review and published her reasons for it. Those reasons contain the following paragraphs in relation to the involvement of Blue Ribbon in the hearing:
"[3] On 2 June 2003, Mr L Sealy appeared on behalf on Blue Ribbon Products Pty Ltd ('Blue Ribbon Products'). On 3 June 2003 notice was served upon Blue Ribbon Products to attend, pursuant to section 29(2)(b) [sic] of the Act. On 30 June 2003 Mr Sealy formally sought and was granted leave to appear on behalf of Blue Ribbon Products.
Parties to the Proceedings
[4] By correspondence, on 22 May 2003, the union foreshadowed that they might be seeking orders against Blue Ribbon Products.
[5] During proceedings on 2 June 2003 the union said that Blue Ribbon Products should become a party to the dispute on the basis that there is an obligation on the Commission, in terms of natural justice, to give any party against whom orders might be sought the opportunity to be heard.
[6] Mr Sealy, for Blue Ribbon Products objected on the grounds that there is no power to join a party contained within the Act, and that the proceedings were so far advanced that the position of Blue Ribbon Products would be prejudiced.
[7] After a consideration of the issues I issued Directions that the matter be adjourned for 28 days; that notice be served on Blue Ribbon Products to attend on the next hearing day; that if Blue Ribbon Products wished to have any witnesses recalled for the purposes of cross-examination they give seven days' notice; that Blue Ribbon Products file witness statements if they intended to call witnesses; and that Blue Ribbon Products be provided with copies of all transcript, witness statements and exhibits. In the event, Blue Ribbon Products were provided with all the documents, but chose not to present evidence or to cross-examine witnesses, although they did provide written submissions."
It appears from par32 of the Commissioner's reasons that the AMIEU ultimately sought orders in the following terms:
"1 Newemploy Pty Ltd shall reinstate the following persons to the positions that they held prior to 2 April 2003:-
(17 people named)
2 Subject to each of the persons listed above verifying by statutory declaration their income between the period 2 April 2003 and the date of reinstatement, Newemploy Pty Ltd shall pay to each person listed above arrears of wages between 2 April 2003 and the date of reinstatement, less the amount of any income received.
Blue Ribbon Products Pty Ltd shall, through Newemploy Pty Ltd, engage the services of each and every person listed above in the position held by each of them prior to 2 April 2003 at the business operated by Blue Ribbon Products Pty Ltd at 29 Killafady Road, Launceston."
It appears from par34 of the Commissioner's reasons that the questions she set out to determine were "whether the employees had a reasonable expectation of continuing employment; if so, were the terminations for a valid reason; and, if not, what is the appropriate remedy?" Counsel for Blue Ribbon, Mr O'Farrell, told me his client company had no quarrel with the way the Commissioner had formulated those questions. After considering the evidence in detail, the Commissioner found "that the employees had a reasonable expectation of continuing employment and that there was no valid reason for the termination of employment of the employees and the terminations were procedurally unfair". The Commissioner made no finding that Blue Ribbon was the employer of any of the relevant employees, nor that any industrial dispute between them and Blue Ribbon existed. At par469 of her reasons, she said the following:
"[469] I have found that there were no genuine operational requirements that grounded the dismissals, but 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. Having made the findings that I have, then the principal remedy should not be able to be avoided precisely because of that contrivance, ie a claim that the employees cannot be reinstated to their position with Newemploy because their principal client will only have independent contractors on site. Accordingly, in order to give effect to the principal remedy I intend to make orders against Newemploy and Blue Ribbon Products."
Blue Ribbon contends that the Commissioner had no jurisdiction or power to make an order under s31 requiring it to do anything; that it was not a party to the proceedings before the Commission; that the Commissioner purported to exercise the power of the President under s29(2)(b) to summon Blue Ribbon to the hearing, when that power could only be exercised by the President; that the Commissioner's orders were not orders in settlement of any industrial dispute involving Blue Ribbon; and that those orders were ultra vires because of uncertainty as to their meaning. Newemploy contends that on those bases the Commission had no jurisdiction to make orders against Blue Ribbon, and that it therefore lacked jurisdiction to make any orders binding Blue Ribbon and Newemploy jointly.
Jurisdiction of the Commission in relation to Blue Ribbon
I need not consider whether it was open to the Commissioner to make a finding that an industrial dispute existed between the employees and Blue Ribbon, or between the AMIEU and Blue Ribbon, since she made no finding to that effect. There was a dispute in relation to an industrial matter, relating to the termination of employment of the relevant employees. Because of the provisions of s31(1B), depending on whether the Commissioner believed it to be appropriate or impracticable to order reinstatement or re-employment, she had the power to make orders against Newemploy for reinstatement, re-employment or the payment of compensation. 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".
There is nothing in s31 that expressly limits the class of persons or entities against whom such orders may be made. Similarly, there is nothing in the definition of "industrial matter", nor in the definition of "industrial dispute" that expressly limits the classes of persons who may be regarded as parties to, or participants in, an industrial dispute. There is nothing in the Act that expressly limits the classes of persons who may be served with a notice of hearing under s29(2)(b), summoned to attend proceedings under s21(2)(b), or given notice and afforded an opportunity of being heard under s20(4). There is nothing in the Act that expressly prohibits a commissioner who makes an order for reinstatement pursuant to s31(1B)(a) from making ancillary orders for the purpose of giving efficacy to the reinstatement order.
There are no reported cases as to whether the Commission, when making an order for the settling of an industrial dispute as to the termination of employment, may make an order that is binding upon anyone other than the employee and the employer. There does not appear to be any reported case in relation to a similar question arising in the context of similar legislation in any other Australian jurisdiction. There are a number of reported industrial relations cases in which, in other contexts, arbitral tribunals have been held to have power to make orders for the benefit of employees against persons or entities other than their employers. Some of those cases are, however, of little relevance to the questions that arise in this case. For example, in Australian Airlines Ltd v Moore (1995) 59 IR 119, the Full Court of the Industrial Relations Court of Australia (Wilcox CJ, Northrop and Gray JJ) held that an industrial dispute existed between pilots employed by a subsidiary company and its holding company, which had no direct relationship with them, in relation to career progression rights. It was held that there was jurisdiction over the holding company, which was not the employer, but that was held on the basis that the career progression rights of the subsidiary company's pilots could be affected if they were recruited to become employees of the parent company. Making an award as to employment conditions that is binding on a potential employer is very different from making an order for the purpose of settling an industrial dispute that is intended to bind a non-disputant.
In Brown v Rezitis (1970) 127 CLR 157, the High Court considered the scope of the powers of the Industrial Commission of New South Wales to make orders against persons other than contracting parties under the Industrial Arbitration Act 1940 – 1967 (NSW), s88F(2). The section under consideration empowered that Commission to declare void or vary any contract or arrangement that (inter alia) was unfair, harsh, unconscionable, against the public interest, or designed to avoid the provisions of an award or agreement. It was also empowered to make such order as to the payment of money in connection with any contract or arrangement that was declared void or varied "as may appear to the commission to be just in the circumstances of the case". Two employees obtained orders declaring their contract of employment void ab inito, except to the extent to which it gave them a right to remuneration. Their employer was a company with a paid up capital of $4. The Commission made an order for the payment of money jointly and severally against 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, the shareholders of that company, and an employee of that company. It was argued that an order for the payment of money could only be made against the employer. Barwick CJ, with whose reasons 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."
Menzies J also took the view that the Commission had the power to make orders for the payment of money by persons other than the employer. At 169, his Honour said:
"The section is clearly intended to confer a comprehensive power upon the Commission to go to the substance of an arrangement made for a person to perform work in an industry - and to do so in disregard of the legal dress in which the arrangement has been clothed - in order to put such a worker in no worse a position than if he had been working under a contract of employment protected by award conditions."
Of course that case concerned a section that was specifically targeted at arrangements calculated to avoid the obligations of employers by subterfuge, whereas this case concerns legislative provisions in very general terms. Nevertheless, I think the language of the Act indicates that the Tasmanian Parliament conferred powers upon the Commission in wide and general terms in order to enable it to make orders that would have the highly desirable effect of preventing and settling industrial disputes, without regard to what s20(1)(a) calls "technicalities or legal forms", or to the legal dress in which an arrangement has been clothed.
In Re Amalgamated Metal Workers Union of Australia; ex parte Shell Company of Australia Ltd (1992) 174 CLR 345, the High Court considered the powers of the Australian Industrial Relations Commission ("the AIRC") in a dispute as to superannuation entitlements. The employer companies who were parties to the dispute did not control the trustees of the superannuation fund, but the employers' parent company was capable of influencing those trustees. The case concerned the meaning of the term "industrial dispute" in the context of the Industrial Relations Act 1988 (Cth). At 355, Mason CJ, Deane, Toohey and Gaudron JJ made the following comment:
"… 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."
It must be acknowledged that those comments were obiter, and that Brennan J (as he then was) expressed a contrary view at 363.
In this case there is no suggestion that Newemploy is a subsidiary of Blue Ribbon, nor that they are associated companies within the meaning of the Corporations Act 2001. However, I think the comment I have quoted is authority for 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.
In Australian Municipal, Administrative, Clerical and Services Union v Ansett Australia Ltd [2001] AILR 1362, the AIRC, constituted by Boulton J, held that Air New Zealand Ltd was a party to an industrial dispute for the purposes of the Workplace Relations Act 1996 (Cth), even though it was not an employer of any of the relevant employees, but was the ultimate holding company of the relevant employer companies, and in a position to control the decisions of their boards of directors.
Whilst these cases give some support to an interpretation of the relevant provisions of the Act whereby the Commission would have the power to make orders binding upon an entity other than an employer for the purpose of settling a dispute as to the termination of employment, they all relate to different situations and different legislation, and it is therefore necessary to consider the relevant principles of statutory interpretation in order to see whether such an interpretation is the correct or appropriate one.
Certainly such an interpretation accords with the ordinary literal meaning of the words of s31(1), which does not limit the class of persons or entities against whom an order may be made in any way.
The Acts Interpretation Act 1931, s8A(1), requires an interpretation that promotes the purpose or object of the Act to be preferred to an interpretation that does not promote that purpose or object. In my view the presence of ss29 – 31 in the Act makes it clear that one relevant purpose of the Act is to promote or facilitate the settlement of industrial disputes. The wording of the definitions of "industrial dispute" and "industrial matter" in s3(1), makes it clear that one of the objects or purposes of the Act is to facilitate the settlement of disputes as to the reinstatement, re-employment or compensation of former employees who have been unfairly dismissed. We live in an increasingly complex society, in which the decisions of employer companies as to industrial matters are sometimes substantially dictated by other entities such as holding companies or, as in this case, the consumers of labour services provided by labour hire companies. An interpretation of s31 resulting in the Commission not having the power to make orders for the purpose of settling industrial disputes that are binding on entities other than employers, former employers, employees, and former employees would not promote the relevant purpose or object of the Act. An interpretation that would enable the Commission to make orders binding upon entities capable of controlling or influencing the industrial relations decisions of employers or former employers would promote the purpose or object of the Act, and must therefore be preferred.
Such an interpretation accords with the following comment of Mason J (as he then was) in Federated Clerks' Union of Australia v Victorian Employers' Federation (1984) 154 CLR 472 at 491:
"… reflection on the serious impact on the community of industrial dislocation suggests that the scope and purpose of statutes regulating conciliation and arbitration and industrial relations extend to the conferment of jurisdiction on industrial tribunals in relation to industrial disputes in their broadest conception."
The language of the relevant provisions of the Act could hardly be wider. I refer in particular to s31(1) which requires the Commissioner presiding at a hearing under s29, if he or she is 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". I also refer particularly to the requirement of s20(1)(a) that the Commission "act according to equity, good conscience, and the merits of the case without regard to technicalities or legal forms"; to the requirement of s20(1)(b) that the Commission "do such things as appear to it to be right and proper … for preventing and settling industrial disputes"; and to the flexible procedural provisions to be found in ss21(1), (2) and 20(3), to which I will refer again later.
Counsel for the applicants suggested that a power to make orders binding upon entities other than employers could have alarming and inappropriate consequences. Mr O'Farrell submitted that if the Commission had powers to bind non-employers in disputes relating to the termination or proposed termination of employment, it could make an order requiring a bank to reverse a decision to cancel an employer's overdraft, or make an order restraining a human resources consultant from recommending changes that might produce efficiencies by requiring less labour, or make an order requiring a profitable subsidiary company to provide financial support to an unprofitable holding company wishing to reduce its workforce. Counsel for Newemploy, Mr McDermott, suggested that such an interpretation could result in the Commission ordering a customer of an employer not to withdraw an order whose withdrawal might result in the reduction of the employer's workforce, or to making an order compelling a supplier to continue providing supplies to an employer against its will. There are a number of answers to these suggestions. If the power to make orders in such situations existed, it is hardly likely that the Commission would make orders that were unfair to the sorts of entities referred to by counsel, given the requirement of s20(1)(a) to "act according to equity, good conscience, and the merits of the case", the requirement of s20(1)(b) to "do such things as appear … to be right and proper", and the provisions in s30(3)(b) whereby the operational requirements of an employer's business can result in the termination of an employee's employment being permissible even when that employee has a reasonable expectation of continuing employment. More fundamentally, it is necessary to draw a distinction between decisions made by employers and others as to industrial relations questions and decisions made by employers and others as to other questions that have industrial relations consequences. The general words of the Act should "be understood in their context as applying only in the area of industrial relations": Federated Clerks' Union of Australia v Victorian Employers' Federation (supra) per Gibbs CJ at 480. A commissioner's power under s31(1) to order that a "thing is to be done", or that an "action is to be taken" must be understood as limited to things and actins in the area of industrial relations.
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.
It was submitted that everything Blue Ribbon had done was lawful, that the Commissioner's orders would interfere with its common law rights, and that the Commission was not intended to grant relief in respect of the common law tort of conspiracy. However the very nature of arbitral power is that it permits an order to be made against a person or entity whose conduct has been lawful; it creates new rights and obligations that may supersede common law rights and obligations; and it may be exercised whether or not a remedy is available at common law.
Mr McDermott submitted that the Commissioner's order was beyond jurisdiction because it took the form of a mandatory injunction. He argued that an order in the nature of a mandatory injunction could only be made by a tribunal exercising judicial power, whereas industrial tribunals do not exercise judicial power. I accept that the Commission does not exercise judicial power, and is incapable of granting equitable relief, in the form of a mandatory injunction or otherwise. However, when s31(1) empowers a Commissioner to make an order directing that a thing be done or that an action be taken, such an order is not a mandatory injunction or a species of equitable relief, but is an order made in the exercise of arbitral power which is akin to a mandatory injunction. If Mr McDermott's argument were correct, the final words of s31(1), "that Commissioner may, by order in writing, direct that that thing is to be done or that action is to be taken", could never have any application. I therefore reject that argument.
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.
Procedural issues
The applicants relied on the fact that Blue Ribbon was not named in the application by which the Commission's proceedings were initiated. They contended that, having regard to that fact and the course that the proceedings took, the Commissioner had no power to join Blue Ribbon as a party to the proceedings, nor to make orders against Blue Ribbon. They contended that the Commission had erred in purporting to exercise the power of the President of the Commission to summon Blue Ribbon to the hearing when such power could only be exercised by the President, and only before the commencement of the hearing.
The application by the AMIEU was one under s29(1) "for a hearing before a Commissioner in respect of an industrial dispute". The principal power of a commissioner presiding at such a hearing is to make orders "for the purpose of preventing or settling the industrial dispute in respect of which the hearing was convened": s31(1). Section 21(1) provides, that subject to the Act, "the Commission may regulate its own procedure". Particular powers are conferred by s21(2), which includes the following:
"(2) Without prejudice to the generality of subsection (1), the Commission may, in relation to a matter before it ¾
(a)at or before the commencement of proceedings before the Commission, ascertain whether all private employers referred to in section 66(1) who, and all organizations the members of which, in the opinion of the Commission, may be subject to an award made by the Commission, have been summoned to attend the proceedings, or have been given notice of those proceedings;
(b)direct that organisations or persons be summoned to attend those proceedings;
…
(e)proceed 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;
…
(j)permit the intervention, on such terms as it thinks fit, of an organization which, in the opinion of the Commission, is sufficiently interested in that matter;
…
(l)correct, amend, or waive any error, defect, or irregularity;
…
(n)generally give all such directions and do all such things as are necessary or expedient for the expeditious and just hearing and determination of that matter."
The Act does not contain any relevant definition of the word "party". For the purposes of s28(1), which permits a party to appear in person or by an agent, "party" is defined in s28(2) to include an intervener. There is no other definition of "party" in the Act. Section 29(2)(b), which requires the President to cause notices of the hearing to be given, describes each recipient of such a notice not as a party but as "a person who, or an organisation which, the President considers is able to assist in the settlement or prevention of the industrial dispute". The enforcement provision to which I have referred, s31(5), applies to a "person", and does not use the word "party". The Act does not contain any provision expressly empowering the Commission to add parties to its proceedings, but s21(2)(b) empowers it to direct that "organisations or persons be summoned to attend those proceedings", and s27(5) permits a person having a direct interest in proceedings to apply for leave to appear and be heard in those proceedings.
Section 20 contains the following provisions as to the enlargement of the scope of proceedings before the Commission, and the procedure to be adopted when the subject-matter of proceedings changes:
"(3) In the exercise of its jurisdiction under this Act, the Commission is not restricted to the specific claim made or to the subject-matter of the claim.
(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."
It is worth noting that the term "the parties concerned" is used in s20(4). In its context, that term appears to mean "the persons or entities concerned", and not to refer to persons or entities somehow having the status of parties.
The procedural provisions of the Act are simply not based upon any concept whereby some persons or entities are parties to the proceedings, or parties to an industrial dispute, and all others are not. There is no provision as to persons or entities becoming parties by being named or added as such. I think it must follow that, when a person or entity is not named in an application made to the President under s29(1), a commissioner has the power to make an order under s31(1) requiring that person to do something or take some action, provided only that he or she is of the opinion that the facts warrant such an order, and that the common law and statutory requirements as to procedural fairness have been satisfied. There is no need for any particular steps to be taken by way of making that person or entity a party to the proceedings or a party to the industrial dispute, even if there is such a thing as a party to the proceedings, or such a thing as a party to the industrial dispute. Formally adding parties would involve "regard to technicalities or legal forms", contrary to s20(1)(a).
It is true that the summonses of 22 May 2003 and 24 June 2003 were addressed to Mr Hadden, and not to Blue Ribbon. However counsel for Blue Ribbon subsequently attended the hearing and made submissions on behalf of Blue Ribbon. The applicants do not contend that Blue Ribbon was denied procedural fairness, such contentions having been abandoned at the hearing of these applications.
It seems that neither Mr Hadden nor counsel for Blue Ribbon had attended the hearing prior to 22 May 2003. As soon as the Commissioner learned that the AMIEU was suggesting that an order might be made against Blue Ribbon, her common law duty of procedural fairness required her to cause Blue Ribbon to be notified of the relevant facts and afforded an opportunity to participate in the proceedings. She could have directed that Blue Ribbon be summoned to attend the proceedings pursuant to s21(2)(b) in the discharge of that duty of procedural fairness, but Mr Hadden received a summons instead. Blue Ribbon was sent the notices of hearing dated 3 June 2003 and 18 June 2003, each signed by the Acting Registrar. Each incorrectly stated "the President hereby convenes a hearing …", whereas the only convening done by the President in relation to the proceedings was prior to the commencement of the hearing on 8 April 2003. In par3 of her reasons of 1 October 2003, the Commissioner incorrectly asserted that the notice of 3 June 2003 had been served pursuant to s29(2)(b). A notice is given pursuant to that provision only if the President has caused it to be given, but the President did not cause the notice of 3 June 2003 or the notice of 18 June 2003 to be given to Blue Ribbon. However I do not think that the Acting Registrar's false assertions as to the involvement of the President in the convening of the continued hearing, or the Commissioner's mistake as to the notice of 3 June 2003 having been given pursuant to s29(2)(b), make any difference as to the validity or propriety of the final orders. The Commissioner had the power to continue the hearing without any step being taken by the President. Once Blue Ribbon was represented at the hearing, provided all requirements as to procedural fairness were satisfied, no action on the part of the President was necessary in order to bring Blue Ribbon within the Commissioner's jurisdiction. There is no suggestion that the false assertion in the Acting Registrar's notices as to the activities of the President made a difference as to the steps Blue Ribbon took in relation to the proceedings. The conclusions reached by the Commissioner were not affected by her mistake as to whether the notice of 3 June 2003 was one pursuant to s29(2)(b).
The applicants advanced an argument based upon s29(1B), which reads as follows:
"(1B) An application for a hearing before a Commissioner in respect of an industrial dispute relating to termination of employment or severance pay relating to redundancy is to be made within 21 days after the date of termination or, if the Commissioner considers there to be exceptional circumstances, such further period as the Commissioner considers appropriate."
It was argued that, once the AMIEU decided to seek an order against Blue Ribbon, the only appropriate course was to start fresh proceedings by making a fresh application to the President under s29(1), requesting that Blue Ribbon be notified of the proceedings under s29(2)(b), and requesting that there be an extension of the 21-day limitation period imposed by s29(1B). I reject that submission. The Commission is required by s20(1)(a) to act "without regard to technicalities or legal forms". The jurisdiction of the Commission to make an order under s31(1) against a person or entity other than an employer does not depend upon that person or entity being given notice under s29(2)(b) prior to the commencement of the hearing. If such a person or entity was not represented or present at the early stages of the hearing, appropriate steps would have to be taken to ensure procedural fairness. If such a person or entity claims to have been prejudiced as a result of delay in notification of the possibility of an order being sought or made against it, the Commission must no doubt take any such prejudice into account in deciding whether to make an order and, if one were to be made, what its terms would be. There is no suggestion in this case that any delay in providing notice to Blue Ribbon resulted in any prejudice or possibility of prejudice. The simple fact is that s29(1B) was complied with, since the AMIEU's application under s29(1) was made within 21 days after the termination of the employment of the relevant employees. The desire for orders against Blue Ribbon did not warrant the making of a fresh s29(1) application.
Uncertainty
Blue Ribbon contends that it could not be ordered to reinstate an employee of another company; that the Commissioner's order against Blue Ribbon did not specify what arrangements were to be reinstated; that the Commissioner made that order for the purpose of restoring the status quo without determining what that was; and that, as a result of these matters, that order is so vague that it is ultra vires. It was argued that, in determining whether the order is ultra vires, it must be taken into account that s31(5) makes it an offence for a person to fail to comply with a direction contained in such an order.
As I have said, the Commissioner made an order that Newemploy and Blue Ribbon "reinstate the employment arrangements that existed immediately prior to 2 April 2003" in respect of 17 named persons. She did not state with any greater precision what Blue Ribbon was required to do. Strictly speaking, immediately prior to 2 April 2003, each of the relevant employees was a party to a written training agreement expiring on that date. However I think it is so obvious that it goes without saying that the arrangements prior to that date were to be reinstated as if they were to continue indefinitely.
The draft order proposed by the AMIEU in respect of Blue Ribbon, as I have said, was in the following terms:
"Blue Ribbon Products Pty Ltd shall, through Newemploy Pty Ltd, engage the services of each and every person listed above in the position held by each of them prior to 2 April 2003 at the business operated by Blue Ribbon Products Pty Ltd at 29 Killafady Road, Launceston."
In respect of that draft order, the Commissioner said the following in her reasons;
"[471] There is some merit in the submissions of Blue Ribbon Products in relation to ambiguity in the wording of the draft order. I intend to issues [sic] 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.
[472] I do not consider the Order which follows to be incapable of implementation."
I think it obvious that the Commissioner intended Newemploy to reinstate the employment of the employees as it existed immediately prior to 2 April 2003 and that, in order for that employment to continue indefinitely, Blue Ribbon was to restore its contractual arrangements with Newemploy for the provision of the services of the relevant employees to do the work that they had been doing at Blue Ribbon's premises immediately prior to 2 April 2003. What those contractual arrangements were, and what each employee's work was, were matters better known to Blue Ribbon than to the Commissioner. 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. The Commissioner cannot have meant that, in the event of Newemploy failing to employ one or more of the relevant employees, Blue Ribbon would have to do anything that it was not doing prior to 2 April 2003.
Counsel for the AMIEU, Mr Read, did not argue against Blue Ribbon's submissions as to the vagueness of the order. He submitted that, in the event of Blue Ribbon's submission being accepted, the appropriate course was to send the matter back to the Commissioner with a direction to formulate a better order.
Under the Judicial Review Act, s20(k), "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) of that Act.
I am simply not persuaded that the relevant order is so vaguely worded that its meaning is uncertain. It is an order in very general terms, but apparently deliberately so. There does not appear to have been any conflict at the hearing as to the nature of the employment arrangements existing before 2 April 2003. I do not see any basis for thinking that Blue Ribbon might not be able to understand what the order requires it to do.
Compensation for lost earnings
Mr McDermott submitted that, because of the wording of s31(1B) payments of compensation could only be ordered as an alternative to reinstatement or re-employment, and that the Commissioner had erred by ordering the payment of compensation for lost earnings as well as ordering reinstatement. Mr Read took the point that such a submission did not fall within the scope of the grounds specified in Newemploy's originating application. He was right about that. Mr McDermott did not seek to amend the grounds. I must therefore disregard his submission, on the basis that it was irrelevant to any of the grounds that were set out in the application in compliance with the Judicial Review Act, s22(b). I doubt that the Commissioner lacked the power to make an ancillary order for the payment of compensation for lost earnings under s31(1), but no question as to the existence of such a power arises in these proceedings.
Conclusion
For the above reasons, the originating applications are dismissed.
3
6
1