Bullard v Tasmanian Industrial Commission
[2023] TASFC 3
•15 June 2023
[2023] TASFC 3
| COURT: | SUPREME COURT OF TASMANIA (FULL COURT) |
| CITATION: | Bullard v Tasmanian Industrial Commission [2023] TASFC 3 |
| PARTIES: | BULLARD, Tim |
| v | |
| TASMANIAN INDUSTRIAL COMMISSION | |
| MC | |
| FILE NO: | FCA 1786/2022 |
| JUDGMENT | |
| APPEALED FROM: | Bullard v Tasmanian Industrial Commission |
| [2022] TASSC 39 | |
| DELIVERED ON: | 15 June 2023 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 17 November, 7 December 2022 |
| JUDGMENT OF: | Geason J, Marshall AJ, Porter AJ |
| CATCHWORDS: |
Administrative law – Administrative tribunals – Generally – Fraud perpetrated on tribunal – Review of State Service action by industrial tribunal – Employee suspended on full pay pending investigation into conduct – Where suspension on full pay terminated and salary not paid – Where applicant for review failed to put material information before tribunal – Where respondent knowingly failed to remedy deficiency – Tribunal unable to properly exercise its jurisdiction – Application for judicial review
allowed.
SZFD v Minister for Immigration (2007) 232 CLR 189, applied.
Aust Dig Administrative Law [1095]
Industrial Law – Tasmania – Conditions of employment – Remuneration – Generally – State Service teacher without current registration – Award provision that teacher employee not to be paid salary where registration not current except in circumstances beyond the employee's control – Meaning of "circumstances beyond the employee's control" – Circumstances not confined to those presently within the employee's control – Circumstances extend to those within their control at some past time.
Teaching Service (Tasmanian Public Sector) Award, cl 7.
Aust Dig Industrial Law [3392]
REPRESENTATION:
Counsel:
Appellant: P Turner SC, M Jehne First Respondent: No appearance Second Respondent: No appearance Australian Education Union (amicus curiae): M Wilkinson, S Smith Attorney-General
(amicus curiae):K Cuthbertson SC
Solicitors:
Appellant: Solicitor-General First Respondent: Crown Solicitor (submitting appearance) Second Respondent: Rae & Partners Lawyers (submitting appearance) Australian Education Union (amicus curiae): Australian Education Union Attorney-General
(amicus curiae):Crown Solicitor
| Judgment Number: | [2023] TASFC 3 |
| Number of paragraphs: | 160 |
Serial No 3/2023
File No FCA 1786/2022
TIM BULLARD v TASMANIAN INDUSTRIAL COMMISSION and MC
| REASONS FOR JUDGMENT | FULL COURT GEASON J MARSHALL AJ PORTER AJ 15 June 2023 |
| Orders of the Court: |
1 The appeal is allowed.
2 Leave is granted to amend of the grounds of appeal by adding Ground 10.
3 Leave is granted to the appellant to have admitted into evidence the affidavits relevant to ground 10.
4 The decision made by the first respondent on 29 April 2021 is quashed.
5 The judgment of the primary judge is set aside.
6 The matter of MC's application for review of the decision of the applicant is referred to the Commission.
7 There is no order as to costs.
Serial No 3/2023
File No FCA 1786/2022
TIM BULLARD v TASMANIAN INDUSTRIAL COMMISSION and MC
| REASONS FOR JUDGMENT | FULL COURT |
GEASON J
MARSHALL AJ
15 June 2023
The parties
1 The appellant, Mr Tim Bullard, has appealed from a judgment of a judge of the Court ("the primary judge"). The primary judge dismissed an originating application under the Judicial Review Act 2000 in which the appellant applied to quash a decision of the Deputy President of the Tasmanian Industrial Commission ("the Commission"). The Commission is the first respondent to the appeal.
2 The appellant is the Secretary of the Department of Education. The second respondent ("MC") is a former employee of the State, who was a member of the teaching service of the State of Tasmania.
Background facts and legislative scheme
3 The Commission (through its Deputy President) made a decision on 29 April 2021 to direct the appellant to treat MC as suspended on full pay. The appellant had, on 2 October 2020, directed in effect, that MC be suspended without pay. It will be apparent from the factual background discussed below that MC had earlier been suspended on full pay during the previous month. The review of the appellant's decision was availed of pursuant to s 50(1)(b) of the State Service Act 2000. The practical effect of the decision was to revoke the status of MC as suspended on full pay and have him treated as suspended without pay.
4 Under s 50(1)(b) of the State Service Act an employee is entitled to apply to the Commission for a review of any "State Service action" that relates to his or her employment in the State Service. There is no dispute in this proceeding that "State Service action" includes a decision to place a State Service employee, who has been suspended on full pay, on suspension with no pay. Under s 50(1)(c) of the State Service Act, in an application under s 50(1)(b), the Commission may grant the application and recommend or direct the Employer or the Head of Agency to take such action as the Commission considers appropriate. (Emphasis supplied.) The Employer is the Minister administrating the Act, see the definition of "Employer" in s 3 of the Act, and see also s 14. The appellant is the relevant Head of Agency for the Education Department under the Act. "Agency" means a government department under the definition given to that word in s 3. Under s 6, the State Service consists of "Heads of Agency, holders of prescribed offices, senior executives and employees". It is open to the employer Minister to issue Employment Directions under s 17 of the Act, concerning, amongst other things, "employment matters" relevant to the Act. Although not the employer of State Service employees, the Head of Agency is given several employer type functions by s 34 of the Act, including determining duties to be performed, allocation of duties and various other employer type functions, such as the preparation of performance management plans for employees. Any appointments or promotions are to be made by the employer Minister. The parties to the contract of employment are the employer Minister and the State Service employee.
5 Under s 38(1), the terms and conditions of employment of employees are those specified in an award relating to the persons engaged in the work for which they are employed, or in the absence of an award, as determined by the Employer Minister. Under s 38(2), the salary of a permanent employee is not to be reduced without the employee's consent, unless in accordance with ss 10, 47 and 48. Section 10 deals with breaches of codes of conduct, a consequence of which may be a reduction of salary. The "State Code of Conduct" is referred to in s 9. Section 9(14) provides that an "employee must at all times
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behave in a way that does not adversely affect the integrity and good reputation of the State Service". Pursuant to s 43 of the Act, employment directions may provide for the suspension from duties of employees with or without salary. Section 47 deals with redeployment and s 48 with the inability of employees to perform duties.
6 At the hearing of the appeal, the appellant applied to adduce evidence that was not before the primary judge. The Court received that evidence provisionally. We receive it absolutely because it is material which should have been before the Commission and the primary judge to provide the full suite of material relevant to the matter.
7 On 11 September 2020, a journalist contacted an officer or employee of the Department of Education. The journalist said words to the effect that an article would be in the in The Mercury newspaper claiming that in the 1980s, a teacher was responsible for impregnating a student and that the teacher was currently working in the Tasmanian school system. The journalist named MC as the teacher in question.
8 Also on 11 September 2020, an officer of the Education Department found correspondence on MC's file which confirmed the allegation of the journalist. The correspondence in question was a letter dated 5 October 1989. The letter is addressed to the then Secretary of the Department (then known as Education and The Arts) and is under the hand of the Director, Southern Region, of that Department.
9 The letter makes the following points relevant to this appeal:
MC admitted to the Acting Principal of a high school at which MC was teaching, that MC had sexual intercourse with a Year 10 pupil, and as a result that pupil was pregnant at that time; That information was confirmed by the author of the letter with the Acting Principal. On 5 October 1989, the author of the letter met with MC and MC admitted that he had had
sexual intercourse with the pupil in question. MC confirmed in front of three witnesses that he had had sexual intercourse with the student
in question. MC was told that if he submitted his resignation, no further action would be taken in the matter. MC was to confer with the Tasmanian Teachers Federation (the antecedent of the current Australian Education Union Tasmanian Branch) ("the Union").
10 It appears from all material before the Court that MC did resign from the teaching service in October 1989, but was subsequently re-employed in the teaching service in or about 1992.
11 On 16 September 2020, the appellant wrote to MC advising him that he had appointed an investigator to investigate an allegation that MC may have breached the Code of Conduct under the State Service Act. One of the particulars of the allegations was that MC commenced a sexual relationship with a named female student while he was employed as a teacher.
12 The 16 September 2020 letter also advised MC that he was immediately suspended on full pay under reg 34 of the State Service Regulations 2000.
13 In a separate letter of 16 September 2020, the appellant informed the investigator that he should put to MC the allegation concerning MC having a sexual relationship with the named student.
14 Also on 16 September 2020, Mr Watson (Assistant Director Industrial Relations in the Department) notified the Registrar under Registration to Work with Vulnerable People Act 2013 ("the
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Registrar") of the allegations against MC, the subject of the Departmental investigation. Under s 49 of the Registration to Work with Vulnerable People Act, the Registrar suspended MC's registration under that Act, being satisfied that MC posed an unacceptable risk to vulnerable persons.
15 On 25 September 2020, the Teachers Registration Board Tasmania ("the Board") suspended the registration of MC as a teacher under s 24B of the Teachers Registration Act 2000. Under s 24B(1) of that Act, the Board is empowered to suspend the registration of a teacher if it believes, on reasonable grounds, that a registered teacher may pose a risk of harm to a student.
16 On 28 September 2020, the Board advised MC that it had suspended his registration as a teacher, based on the Registrar having suspended his registration to work with vulnerable people, students in MC's case.
17 On 2 October 2020, the appellant wrote to MC advising him that as his registration as a teacher had been suspended, he was not permitted to teach in any Tasmanian school. MC was informed that as he was not registered to teach, he would no longer be paid a salary but immediately suspended henceforth without pay.
18 The 2 October 2020 letter referred to the Teaching Service (Tasmanian Public Sector) Award ("the Award"). The Award is an industrial instrument made by the Commission. It regulates most of the terms and conditions of teachers in State government schools in Tasmania. The Union is a party to the Award.
19 Part II, clause 7 of the Award provides that:
"The responsibility to maintain a current registration with the Teachers Registration Board rests with the individual teacher employee. In accordance with the Teachers Registration Act 2000 (TR Act), a teacher employee must have a current registration issued by the Teacher's Registration Board. Except in circumstances beyond the employee's control, where a teacher employed is not currently registered as detailed above, the employee will not be paid salary until a current registration certificate is issued."
20 On 16 October 2020, MC filed an application with the Commission, challenging the decision of the appellant to place him on suspension with no pay, as distinct from on suspension with full pay.
21 MC's then lawyer contended before the Commission that the suspension of MC's registration was due to circumstances beyond his control given that the suspension of his registration as a teacher occurred without the Board offering MC procedural fairness. It was submitted that MC was never given an opportunity to address the Board on why his registration should not be cancelled. The appellant submitted to the Commission that he was required to suspend MC's registration as a teacher given MC's permission to work with children had been suspended. In a witness statement provided to the
Commission, MC stated that he did not appeal against the decision of the Board as it "…was the result
of the suspension of [his] Registration to Work with Vulnerable People".
22 The Deputy President of the Commission had before her the Departmental correspondence of 16 September 2020 to MC, which made an allegation about MC engaging in a sexual relationship with a student. The Deputy President did not have before her the October 1989 correspondence, which noted that MC had admitted to such a relationship and had subsequently done so in the presence of the then Secretary of the Department and other witnesses. Both MC and the respondent to his application failed to disclose that critical information to the Commission. If that information had been before the Commission, it would have been immediately apparent to the Deputy President that any failure to accord procedural fairness to MC would not have resulted in any practical injustice as MC had admitted to the conduct which led to his registration for Working with Vulnerable People being suspended and consequently his registration as a teacher being suspended. The representatives of the appellant before
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the Commission also failed to disclose that critical information based on a genuinely held but misguided belief that it would prejudice a future criminal trial. At no stage, leading up to the conclusion of the criminal proceeding against MC later in 2021, or before, did MC contest those critical facts.
23 In upholding the application of MC, the Commission was influenced by the decision of the appellant to suspend him with no pay occurring, without any input from MC, thereby leading to what appeared to the Commission to be a denial of procedural fairness.
24 The decision not to pay salary to MC and treat him as suspended without pay was made by the appellant. It was made because MC was not currently registered to work as a teacher because his registration had been suspended by the Board. The appellant was obliged to stop paying MC's salary unless it could be shown that the suspension of his registration as a teacher was beyond MC's control in accordance with the Award. To determine whether his registration was beyond his control, it is pertinent to ask what MC could have submitted, with utmost honesty, as to why the suspension of his registration was beyond his control. One submission may have been that he should not have had his registration suspended because the allegations made against him were false. That is a submission that was best made to the Board before it suspended his registration, but it gave him no opportunity to do so. However, as MC admitted to the Commission, the decision of the Board was consequent upon his registration to work with vulnerable people being suspended. Any denial of natural justice may lie at the feet of the Registrar of that body, but that person was only concerned about the very making of the allegations which were the subject of an investigation and acted with what was effectively a safety concern. Had MC had the opportunity to present submissions with full disclosure to the Registrar, the result would not have been any different given admissions MC had made in 1989 regarding the conduct which was relevant to the decision to suspend his permission to work with vulnerable children.
25 MC provided a submitting appearance for the appeal. The Union, upon being invited to participate in the appeal by the Court, made submissions to the Court on the construction of c1 7 of Part II of the Award. It contended that "the circumstances beyond the control of the employee" exception to loss of pay meant that there should be no cessation of pay until an investigation has run its course. The Union referred the Court to the line of authority stating that industrial instruments should be considered in a broad and generous way. It is trite law that a liberal approach should be applied to the construction of industrial awards and agreements. See most recently, in the local context, Gutwein v Tasmanian Industrial Commission [2021] TASFC 9, 33 Tas R 107. See also the discussion at [33]-[47] below. There is no material before the Court relating to the circumstances leading to the introduction of cl 7. Even if there had been such evidence, it would have been of little value as ordinarily there are competing considerations as to why parties agreed upon a certain wording in industrial instruments. In the ordinary case, in the absence of compelling evidence that a serious breach of the Code of Conduct had occurred, it may be prudent to await the outcome of an investigation before payment of salary is terminated. However, if the appellant had called upon MC to show why his salary should not stop, and had MC acted honestly, he would have been compelled to disclose the 1989 admissions and, in any event, the appellant would have been obliged to put those allegations to him. In other words, no practical injustice occurred even if there was a relevant denial of procedural fairness. Further, as MC admitted before the Commission, the suspension of his registration by the Board followed the suspension decision concerning his permit to work with children. Therefore, there was no issue about MC being denied natural justice by the Board. The real question is whether there was a denial of natural justice by the appellant who considered himself compelled not to pay someone who was not registered and, in light of the allegations against MC, considered that there was no matter beyond MC's control that was relevant to the decision not to continue to pay MC, despite his lack of registration as a teacher.
26 The matter may be tested this way. If MC had had the opportunity to make submissions to the appellant, what could he have said in good conscience? What were the circumstances beyond his control that led to the cancellation of his registration as a teacher? He had admitted to a sexual relationship with a female student. He had admitted to impregnating that student. It is not as if none of that
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happened. He further made admissions in his guilty plea to a charge under s 125A of the Criminal
Code.
27 It is not necessary to explore the limits of circumstances beyond the employee's control in the context of cl 7 of the Award. It may be intended to include circumstances where suspension of registration has occurred in error, or when false allegations have been made, or in circumstances where registration lapses because of an unusual circumstance. One may envisage, by way of example, a teacher attending a conference overseas who is unexpectedly detained in another country, or a situation where the Education Department has confused two people with identical first names and surnames.
28 The appellant sought judicial review of the decision of the Commission. The parties did not disclose to the primary judge the evidence put on appeal concerning the events of 1989 and the admissions made by MC at that time. Had that material been before the primary judge, in all likelihood he would have found that the review conducted by the Commission under s 51 of the State Service Act was not a proper review, but was affected by jurisdictional error given the failure of the parties to make a full and frank disclosure as to relevant facts, for the reasons set out below.
29 The Commission upheld the application of MC because it considered MC was denied procedural fairness. Due to the failure of the parties before the Commission to make full disclosure of all relevant facts, it was not apparent to the Commission that there would have been no practical injustice arising out of any denial of procedural fairness, even if there was such denial.
Ground 10
30 The appellant sought to add a new ground of appeal, called ground 10. That ground stated that:
"The decision of the Deputy President was induced or affected by fraud comprised by the failure of the parties to put before her material evidence, namely that the allegations which caused the suspension of [MC's] registration under the Registration Working with Vulnerable People Act (the RWVP Act) and the Teachers Registration Act (the TR Act) were true and that [MC] had admitted that they were true, and in consequence, proceedings to challenge the decisions to suspend his RWVP Act registration and/or his TR registration would have been futile".
For reasons which follow, we consider that it is appropriate to allow leave to add that ground to be permitted to be relied upon by the appellant.
31 This was not a ground raised before the primary judge but it should have been raised before him. That is no bar to it being raised on appeal as it is "expedient in the interests of justice" to do so. See Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73 250 FCR 510. See also SZFDE v Minister for Immigration [2007] 232 CLR 184 at [52]. We agree with the submission of counsel for the appellant that the Commission in conducting the review of the appellant's decision should have had before it all material relevant to conducting and deciding that review. The absence of that material vitiated the review. Accordingly, there was a failure by the Commission to properly exercise its jurisdiction through no fault of its own. Consequently, we consider that ground 10 is made out and that the appeal should be allowed on that basis. The primary judge considered the application before him based on the glaringly incomplete material facts before the Commission. Although allowing the appeal, we make no criticism of his Honour's decision based as it was on incomplete material. The outcome, like the outcome of the proceeding before the Commission was affected by the failure of the parties to disclose crucial material facts. As French J (dissenting) said in Minister for Immigration v SZDFE [2006] 154 FCR 365 at [121], "a decision made in the purported
exercise of statutory powers may be quashed where the decision has been induced or affected by fraud or by circumstances analogous to fraud." In that appeal from the judgment of the Full Court the High Court affirmed the view of French J. See also at [153]. Although in that case the person complaining about the decision was the one whose conduct vitiated it, it does not follow that a different legal result
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should ensue when both parties are at fault. In the final analysis the decision of the decision-maker was vitiated by both parties failing to disclose facts vital to the proper consideration of the matter. A decision vitiated for conduct in the nature of fraud by a moving party cannot be revived as a valid decision by conduct of the same nature by the respondent party: once vitiated, always vitiated. A party who should have raised crucial matters before an administrative decision-maker, the same matters not disclosed by the moving party, should not be at risk of the moving party being rewarded for the failure to be full, frank and honest in seeking to invoke the jurisdiction of the administrative body.
32 Because of the view we have taken about ground 10, we do not consider it essential to deal with the other grounds of appeal, but in case we are in error as to ground 10, we make the following observations about those grounds.
Proper interpretation of clause 7 of the Award
33 Because the correct interpretation of cl 7 is central to some of the other grounds of appeal discussed below we consider it important to say something about the correct approach to its interpretation. We have had the advantage of reading the draft judgment of Porter AJ. We have reached a different view from his Honour as to whether ground 10 is made out. Therefore, the judgment of Porter AJ, insofar as it deals with the interpretation of cl 7 of the Award, is of significance.
34 We respectfully disagree with Porter AJ as to the corrrect interpretation of cl 7 of the Award for the reasons which follow.
35 Whilst the Full Court of the Federal Court in WorkPac Pty Ltd v Skene [2018] FCAFC 131, 264 FCR 536 at [197] sets out a useful summary of the test for the interpretation of industrial instruments, especially by referring to them not being "interpreted in a vacuum divorced from industrial realities", the latest word on the approach to interpretation of awards in this jurisdiction is set out in Gutwein. In Gutwein at [27] the latest statement on the topic of interpretation of industrial instruments from the High Court in Amcor Limited v Construction Forestry Mining Energy Union [2005] HCA 10, 222 CLR 241 was examined and applied. In particular the judgment of Kirby J at [96] expressed agreement with the approach of Madgwick J to interpretation of industrial agreements in Kucks v CSR Ltd (1996) 62 IR 182 at 184 where Madgwick J, sitting in the Industrial Relations Court of Australia said:
"It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for."
36 Further at [146], Callinan J said:
"There is substance in the observations of Madgwick J in Kucks which I have quoted although it is not with any jargon of the workplace or a particular industry that the Court is concerned in this case."
Further at [147], Callinan J said that "(i)t is important to keep in mind therefore the desirability
of a construction, if it is reasonably available, that will operate fairly towards both parties".
37 How would any ordinary teacher bound by the Award consider how cl 7 of the Award worked? The first paragraph provides that "(t)he responsibility to maintain current registrations with the Teachers Registration Board rests with the individual employee". A teacher would understand by that provision
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that she or he is obliged to keep her or his registration current. The wording is directed at "an employee" that is, someone who is already in the teaching service who has a current registration and who is obliged to maintain that currency to continue to work as a teacher in the State system.
38 The second paragraph of cl 7 of the Award states that "In accordance with the Teachers Registration Act 2000 a teacher employee must have a current registration issued by the Teachers Registration Board". This paragraph emphasises the notion set out in the first paragraph of the clause that current registration under the TR Act is required in order to work as a teacher.
39 The third paragraph of cl 7 states:
"Except in circumstances beyond the employee's control, where a teacher employee is not currently registered as detailed above, the employee will not be paid salary until a current registration certificate is issued."
40 A teacher employed under the Award would understand the importance of being currently registered because if she or he was not currently registered she or he would not be able to be paid a salary until a certificate of current registration was obtained.
41 The opening words "except in circumstances beyond the employee's control" provide an exception to non-payment of salary where the employee does not have a current certificate of registration due to circumstances for which that employee is not at fault. Registration may have lapsed and not been renewed because of an unplanned absence outside of Australia, or it may have been cancelled due to a mistake of fact or identification by an administrative official in the relevant government department. There is no reason to limit the examples, which constitute "except in circumstances beyond the employee's control". An examination of the individual circumstances in each individual situation is required.
42 In our opinion an interpretation of cl 7 which holds that the clause has no operation when a teacher is not registered gives the words at the beginning of the third paragraph no work to do at all. It is abundantly clear from cl 7 that registration must be maintained by a teacher after entering the teaching service and that if the teacher does not have a current registration certificate he or she will not be paid a salary. However where "circumstances beyond the employee's control" have resulted in the failure to have current registration, salary will be paid. The outcome depends on whether the circumstances causing that result were within or beyond that employee's control. For example, where a teacher bearing the same name as a teacher who has committed crimes against children loses a working with children permit as a result of misidentification and subsequently has her or his registration cancelled, that person will have an excellent chance of being entitled to salary despite the cancellation. The same may apply to someone detained in a foreign prison through no fault of their own.
43 We respectfully disagree with the view of Porter AJ that cl 7 "only applies where the employee is qualified to be registered but has not applied to be registered, or a registration has lapsed, and the employee has not re-applied".
44 As we have said, cl 7 refers in the first paragraph to an employee. One must be an employee of the teaching service in the first place in order to be registered. The clause does not refer to someone who has not applied to be registered though qualified to do so, because it is a condition of registration that a person is first engaged to work as a teacher at a school. Having been engaged to work as a teacher (after graduation from a tertiary institution), a person cannot proceed to teach without obtaining registration from the Teachers Registration Board; see s 11(1) of the Teachers Registration Act.
45 We agree with Porter AJ that cl 7 may apply when registration has lapsed. The example of a teacher held in a foreign prison and unable to maintain a current registration is an example of how that might occur. In that case the employee may not reapply, but that is no warrant for excluding other
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circumstances beyond an employee's control such as a case of mistake. There is no need to limit the
examples.46 There is no justification for arbitrarily limiting the circumstances which may be said to be circumstances beyond the employee's control. To do so would be to employ a "narrow or pedantic" approach to award interpretation. There is nothing in cl 7 to indicate that those circumstances were meant to be confined to those identified by Porter AJ, even putting to one side the need to qualify to work as a teacher before being registered. To do otherwise is to ignore the judgment of Madgwick J in Kucks as approved by Kirby and Callinan JJ in Amcor.
47 In this case, MC’s registration lapsed due to circumstances within his control, being the conduct
that led to the cancellation of his working with children permit and consequently the cancellation of his
registration as a teacher.
Ground 1
48 Ground 1 asserts that, in effect, the suspension of registration under the Working with Vulnerable People Registration Act meant that the appellant was precluded from paying salary to MC. we reject that submission because it leaves no work for the exception in cl 7 of the Award. A teacher who is not registered under the Teachers Registration Act may still be in receipt of full pay in circumstances where the registration was cancelled or lapsed due to circumstances beyond that employee's control. The mere cancellation of the registration under the Working with Vulnerable People Act cannot oust the operation of the Award. We accept that the facts and circumstances of this case were such that MC could not have put anything to the Registrar to cause him to come to a different view. The "beyond the employee's control" exception either applied or it did not. Contrary to the submissions of counsel for the appellant there is nothing in the Financial Management Act 2016 which precludes the Commission giving a direction to the appellant to revoke a decision to place a teacher on leave without pay where that teacher no longer has a working with children permit. It is not impossible to envisage a situation of mistaken identity in relation to the withdrawal of such a permit. A direction to pay a teacher in such circumstances, even though that the teacher is not working, does not conflict with s 34 of the Financial Management Act. Such direction would be one validly made under s 65 of the State Service Act. It was contended on behalf of the appellant that the Secretary of a Department is "responsible for the financial management of the agency in an efficient, effective and economical manner, indirectly, in particular, ensuring that expenditure by the agency is in accordance with the law". In our view such direction would be a lawful under s 65 of the State Service Act. The submission to the contrary is devoid of merit. It ignores the presence of the word "direct" in s 51(6)(c) of the State Service Act and the submission that underlies it ignores the existence of clause 7 of the Award.
49 We reject the submission of counsel for the Attorney to the effect that an employee cannot be paid without rendering service. Clause 7 of the Award shows that is possible if the failure of the teacher to maintain registration was actually beyond the teacher's control. In Gapes v Commercial Bank of Australia Ltd (1980) FCA 26, 41 FLR 27, Smithers and Evatt JJ referred to the judgment of Sir John Latham in Amalgamated Colleries of WA Ltd v True (1938) 59 CLR 417 at 423-424 where the following was said:
"When any person is employed to do work to which an award applies, the parties are bound by a contract. Their legal relations are in part determined by the contract between them and in part by the award. The award governs their relations as to all matters with which it deals..."
50 The entitlement to payment pursuant to an award has its genesis in statute not contract. See Byrne v Australian Airlines Limited [1995] HCA 24, 185 CLR 410 per Brennan CJ, Dawson and Toohey JJ at [5] and also at [9] where the plurality said "The award regulates what would otherwise be governed
by the contract".
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51 Ground 1 stands for a proposition that is contrary to law. If on a proper construction of an award an employee can be in receipt of payment in a rare case where full service or no service is rendered, the award must be obeyed. It is noteworthy that employees suspended on full pay awaiting disciplinary investigations also render no service. This ground fails.
Ground 2
52 Ground 2 asserts that there is no right to payment when there is no right to work. Again, that is so in most circumstances where registration to teach is suspended, but as with ground 1, that submission gives the exception in cl 7 of the Award no work to do. Awards may entitle workers to payment, notwithstanding that no work as directed is performed. It all depends on the terms of the award, binding the employer (Minister) and the State Service employee. See Gapes and the discussion above relevant to ground 1. On this topic, at p 70 of the transcript, junior counsel for the appellant made the submission that the Award did not provide an entitlement to salary and that if an award was breached the remedy would be one of contract. In the federal sphere, since the Conciliation and Arbitration Act 1904 (Cth), federal industrial legislation has provided a pathway for suing for breaches of an award. Failure to pay in accordance with an award can result in civil penalties and an order for payment of money wrongfully withheld in the federal jurisdiction. In the local context, clause 1, Part III of the
Teacher's Award provides that "A teacher employed in a classification listed in clause 3 … Will be paid the minimum rate of salary … as listed for the relevant classification and band …". The Award is a
State Award made by the Commission. The Industrial Relations Act 1984 provides a remedy for breach of the Award. Under s 48 of that Act, an employer in breach of an award is subject to a financial penalty and the recording of a conviction. Under s 52 of the Industrial Relations Act a person convicted of award breach may be ordered to pay an affected person any sums owed. The avenue to apply for an award breach remedy is an application in the magistrates court for the conviction of the employer. That court can impose an obligation on the offending employer to make good the underpayment. This would have been an alternative method of recovery in the event that MC was owed wages by his employer under the State Service Act in lieu of seeking a review to the Commission. However the matter would have to be proved to the criminal standard unlike a merits review before the Commission.
53 Ground 2 is not made out.
| Ground 3 |
54 Ground 3 asserts that the primary judge formed a view about the rights and obligations of an employer, under the Award, whereas the appellant was exercising a statutory duty. Although exercising a statutory duty, the appellant was exercising functions typically exercised by an employer and in a practical sense, devolved to him by the actual employer, the Minister, exercising power under the State Service Act. Counsel for the Attorney correctly submitted that the decision of the appellant was amenable to review under s 50 of the State Service Act. This ground is not made out.
Ground 4
55 Ground 4 challenged the primary judge's interpretation of the words "circumstances beyond the employee's control". The primary judge considered that the words meant circumstances currently within the employee's control, and not circumstances which were once within the employee's control but no longer within their control when the decision to stop payment is made. To the extent it matters, given our view on ground 10, we consider that the circumstances in which a teacher may no longer be registered due to factors outside the control of the teacher, are not limited. They will always depend on the relevant facts and circumstances applying to an individual on each occasion. We agree with counsel for the appellant that those circumstances are not confined to those that were within the teacher's control at some past time. To so confine it would amount to a failure to give the words of the Award a broad, liberal and purposive construction as discussed in Gutwein. We also accept the submission of counsel
10 No 3/2023
for the Attorney-General, intervening, to the same effect. In determining which circumstances were beyond the control of a teacher, the role played by that teacher at all relevant times, will be a critical factor. The review in the current circumstances is a comprehensive administrative review by an administrative tribunal of an administrative decision; see Brandy v Human Rights & Equal Opportunity Commission [1995] HCA 10, 183 CLR 245 at 261. Accordingly, the reviewing tribunal should be at large as to factual circumstances, providing those circumstances are relevant. There is no reason to confine these circumstances to what was in the employee's control at some point in time.
Ground 5
56 Ground 5 alleges that the primary judge erred by not holding that the suspension of MC as a teacher was within his control. With the benefit of hindsight and having regard to the matters raised in ground 10, that is, so but the judgment below in that regard was hampered by a lack of full disclosure by both parties.
Ground 6
57 Ground 6 challenges the primary judge's view that the Commission was not in error in failing to take into account information that was not before the appellant on 2 October 2020. What was before or not, or what should have been before the appellant on 2 October 2020 was the result of a failure to provide full and frank disclosure by the appellant and MC. Given that fact, it is inappropriate to express a view on what essentially is a request for an advisory opinion.
Ground 7
58 Ground 7 contends that the primary judge should have considered that the Commission acted beyond jurisdiction in directing that the appellant be placed on full pay while suspended.
59 When the Commission is determining a review of a State Service action, it may act in accordance with s 51(6) of the State Service Act. Section 51(6)(c) states that:
"In the case of an application for review under s 51(1)(6) grant the application and
recommend or direct the Employer or Head of Agency … to take such action as the
[Commission] considers appropriate". (Emphasis applied.)
60 At [77] of her reasons for decision, the Deputy President granted the application for review of the appellant's decision to cease to pay MC and directed the appellant to "recommence the determination of the review at award clause and the status of the EDY suspension with pay". The words of that direction are curious. It would have been sufficient, consistently with what was decided, to direct the Secretary to withdraw or cancel his decision to cease to pay MC and direct that he treat MC as suspended on full pay. In practical terms, that is how the direction should be understood. It is a direction within power under s 51(6) of the State Service Act. As set out above nothing in the Financial Management Act precluded the making of such a payment. Junior Counsel for the Appellant made unhelpful submissions to this Court about the Commission conferring a belief on the decision-maker. This submission renders the word "direct" in s 51(6)(c) of the State Service Act otiose. This is not a submission which might be expected from the Office of the Solicitor-General, obliged as it is to adhere to model litigant principles. The same may be said about the extraordinary submission that it is not possible to sue under an award but only on the contract of employment, as discussed above. That argument is contrary to law and specifically contrary to the provisions of the Industrial Relations Act as discussed above. The Commission conducted its review, and it was entitled to make the direction it did, whether acting de novo or otherwise. The submission that the Commission was directing the appellant to hold a particular belief is without merit. The Commission made a direction that was open to it because of its view that the appellant did not make the correct State Service decision. This is not uncommon in administrative review on the merits. Ground 7 is without merit.
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61 It is pertinent to stress that the Commission is at large in conducting its review of State Service action within the context of the State Service Act. There is nothing in the wording of s 51 of the State Service Act which limits the review to material that was only before the original decision-maker. In coming to a view about whether the original decision was the correct one, the Commission is not restrained from examining material that was not before the original decision-maker, or material not referred to by that person. The role of the Commission on review is akin to that of an appeal court considering an appeal on the evidence that was before the court at first instance, together with any additional evidence admitted on the appeal. That is not inconsistent with the approach of Porter J in Pervan v Frawley [2011] TASSC 27, 20 Tas R 185 where his Honour referred to the Commission "looking it over" with respect to the original decision with a view to its correction. After "looking it over" the Commission had the power to make recommendation and or directions notwithstanding the financial cost which might be incurred by the State or the fact that the appellant was misled to a different view point.
Ground 8
62 Ground 8 alleges that there was no obligation on the appellant to accord procedural fairness in any event. This ground cannot be sustained because the decision to effectively place MC on no pay cannot be made in breach of cl 7. To do so would be unlawful consistently with Gapes and Byrne, referred to above.
Ground 9
63 Ground 9 adds nothing further than what is covered by ground 10. It complains about the decision of the Commission that procedural fairness was denied. Whether or not that was so, the ultimate point is that there was no practical injustice.
Conclusion and orders
64 Aside from ground 10 only grounds 4 and 5 of the appeal have merit. However ground 10 provides sufficient basis to determine the appeal..
65 We would make the following orders on the appeal:
1 The appeal is allowed.
2 Leave is granted to amend of the grounds of appeal by adding Ground 10.
3 Leave is granted to the appellant to have admitted into evidence the affidavits relevant to ground 10.
4 The decision made by the first respondent on 29 April 2021 is quashed.
5 The judgment of the primary judge is set aside.
6 The matter of MC's application for review of the decision of the applicant is referred to the Commission.
7 There is no order as to costs.
66 We agree with that part of the order proposed by Porter AJ which is consistent with our order number 6 having regard to the provisions of s 47 of the Supreme Court Civil Procedure Act 1932. As a matter of law the application for judicial review is to be remitted to the Commission notwithstanding, from a practical point of view, the Commission would have no realistic alternative but to dismiss it formally.
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File No FCA 1786/2022
TIM BULLARD v TASMANIAN INDUSTRIAL COMMISSION and MC
| REASONS FOR JUDGMENT | FULL COURT PORTER AJ 15 June 2023 |
| Introduction |
67 The appellant is the Secretary of the Tasmanian Department of Education (the Secretary). He has appealed from the decision of Blow CJ dismissing his application for judicial review of a decision of the Deputy President of the Tasmanian Industrial Commission (the Commissioner). The Commission has filed a notice of submission. The second respondent, MC, was a teacher employed within the Department under the State Service Act 2000 and the Teaching Service (Tasmanian Public Sector) Award (the Award). He has also filed a notice of submission.
68 This appeal is a further step in a series of proceedings after the Secretary suspended MC on full pay pending an inquiry into his conduct. Shortly after, the Secretary made a determination to end that situation, noting that as MC was not then a registered teacher he was prohibited from teaching. As a consequence, the Secretary directed MC that he not enter any Departmental school and told him he would not be paid. MC sought a review of the later determination. Under s 50 of the State Service Act that review is conducted by the Commission. On review, the Commissioner directed that MC be reinstated as suspended on full pay.
69 In the absence of any proper contradictor in the appeal, and as it raises a number of questions of general importance, the Court sought assistance. It has benefited from the submissions on behalf of
the Tasmanian Attorney-General and the Australian Education Union – Tasmanian Branch (the Union).
Each appeared as amicus curiae.
70 I have had the advantage of reading the reasons for judgment of Marshall AJ* in which his Honour has set out the background and the legislative scheme. I agree with his Honour as to the ultimate outcome of the appeal but, with respect, take a different pathway to the same destination. For the sake of convenience, in these reasons I will repeat some of the factual material and the relevant legislation. *[NOTE: Since writing these reasons, Marshall AJ's original reasons have been incorporated into what is now the expanded joint judgment of Geason J and him. I have amended my later references to Marshall AJ's reasons accordingly.]
A chronology of events
71 Before setting out the essential events, there are some references that need to be explained, and some context that needs to be provided.
72 Section 11(1) of the Teachers Registration Act 2000 (TR Act) makes it an offence for a person to teach at a school unless that person is registered, is a holder of a limited authority or is under the direct supervision of a registered teacher. A person may apply for registration and if the Teachers Registration Board is satisfied that the applicant satisfies the criteria for full registration, must grant such registration. (There are provisions for provisionally and specialist registration which are not relevant.)
73 Section 11(2) sets out the criteria for full registration. In addition to specified academic qualifications, or similar, and sufficient proficiency in the English language, the criteria include that the
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applicant be "of good character", be "fit to be a teacher" and be registered under the Registration to Work with Vulnerable People Act 2013 (RWVP Act) in respect of a regulated activity, within the meaning of that Act, that primarily relates to children.
74 By virtue of s 24B(1), of the TR Act, the Board may immediately suspend the registration of a registered teacher if it believes on reasonable grounds that the teacher may pose a risk of harm to a student. Section 24B(2) provides that the Board is to give notice of the suspension, and must ensure that an inquiry into the matter giving rise to the suspension is held and concluded as expeditiously as possible. That must "take into account that it may be appropriate to delay the inquiry until any other investigation by corresponding registration authority or other relevant person, or any legal proceeding or health investigation, relevant to the subject matter of the enquiry is concluded": s 24B(2)(b).
75 Section 46(2) of the RWVP Act provides that if the Registrar (under that Act) believes on reasonable grounds that there is new relevant information about a registered person, the Registrar is to conduct an additional risk assessment. Section 49(1C) enables the Registrar to suspend or cancel a person's registration under that Act if the Registrar reasonably believes that suspension or cancellation is appropriate, and s 49A enables immediate suspension while an additional risk assessment is conducted.
76 Under the State Service Act, the Minister administering that Act can issue Employment Directions which relate to the administration of the State Service and employment matters relevant to the Act. Employment Direction No. 4 (ED4) sets out the procedure for the suspension of State Service employees with or without pay. Under cl 6.1.a of ED4 a Head of Agency (in this case the Secretary) who has reasonable grounds to believe that it is in the public interest to do so, can suspend an employee with full pay if they believe the employee has or may have breached the Code of Conduct in such a manner that the employee should not continue in the performance of his or her duties.
77 A Head of Agency was not able to suspend an employee without pay; that could only be done with the approval of the Head of State Service. Employment Direction No. 5 (ED5) contains procedures for the investigation and determination of whether an employee has breached the Code of Conduct. If a Head of Agency has reasonable grounds to believe a breach of the Code has occurred, an investigation must be instigated. It is not necessary to venture into the provisions of the Code.
78 Of central importance to this appeal is cl 7 of the Award. It is entitled "Teacher Registration" and contains three limbs, the third of which provides that "Except in circumstances beyond the
employee's control, where a teacher employee is not currently registered …, the employee will not be
paid salary until a current registration certificate is issued."
79 Before going further, I mention the state of the material before this Court. As Geason J and Marshall AJ have noted, the Secretary applied to this Court to adduce evidence that was neither before
the Commission – some of it related to later events – nor before the primary judge. The evidence was
in the form of three affidavits with annexures. The deponent is Stuart Locke, the former Senior Workplace Relations Consultant with the Department of Education. Mr Locke was involved in coordinating the Department's response to the allegations and represented it at the Commission hearing.
80 In argument, counsel put that there were essentially three documents to be relied on; two Departmental minutes to the Secretary and the 1989 letter. The affidavits were received provisionally. Because of the view I have reached about the different grounds, in strict terms the documentary evidence does not fall to be considered, but the additional material has value in that it relates to a number of different grounds and has some importance in the overall context of the matter. There is general resistance to the admission of further evidence in judicial review proceedings: see for instance MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912 at [10]-[11] and the cases cited. However, in this appeal, the material goes to legal points and I think "special circumstances" exist within the
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meaning of s 48(3)(b) of the Supreme Court Civil Procedure Act 1932. I would grant special leave for
it to be received.81 The short chronology is as follows:
11 September 2020
A journalist contacted the Department of Education advising that an article would be published alleging that a teacher, still working in schools, was responsible for a student falling pregnant in the 1980's; MC was named as the teacher.
A search of Departmental records uncovered relevant correspondence; in particular a letter dated 5 October 1989 from the then Director of the Southern Regional Office of the Education Department to the then Secretary of the Department (the 1989 letter). This revealed details of discussions with MC and asserts that admissions were made by him.
16 September 2020
Under cl 6.1.a of ED4, the Secretary suspended MC on full pay and instigated an inquiry under
ED5. A Departmental officer notified the Registrar of the allegations. The Registrar suspended MC's registration under the RWVP Act and notified MC accordingly. The Registrar notified the Secretary that MC's registration under the RWVP Act had been
suspended.28 September 2020
Acting under its emergency power of suspension under s 24B of the TR Act, the Teachers Registration Board suspended MC's registration, instituted an inquiry as it was required to do under the section, and notified MC accordingly.
30 September 2020
The Secretary was briefed by a Departmental officer about these developments. 2 October 2020
The Secretary made a determination that MC was "no longer suspended on full pay", with the suspension under ED4 ended. MC was told that as his registration was suspended he was prohibited from teaching. He was directed that he was not to enter any Departmental school and told he would no longer be paid a salary from that date.
16 October 2020
MC sought a review of the Secretary's determination pursuant to s 50(1)(b) of the State Service Act. 3 December 2020
The Secretary wrote to MC's lawyers stating that he was not satisfied that MC had taken all reasonable steps available with respect to the decision of the Teachers Registration Board. He said he understood that MC had "now" been charged with persistent sexual abuse of a child or
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a young person, and that Tasmania Police had said the ED5 investigation cannot resume until
the criminal proceedings had concluded.
22 February 2021
After a number of conciliation conferences, it was agreed the Commissioner's determination be
on the documents and submissions that had been filed.29 April 2021
The Commission granted MC's application and directed the Secretary to reinstate MC's
suspension on full pay pursuant to ED4 from 2 October 2020.4 June 2021
MC resigned his employment. 13 July 2021
MC was indicted on one count of persistent sexual abuse, contrary to s 125A of the Criminal
Code82 The Secretary's letter to MC of 2 October 2020 contains the critical determination. After noting that as MC's registration under the TR Act was suspended he was not currently registered and must not teach, the letter continues:
"Pursuant to Part II Clause 6 (sic 7) of the Award, it is your responsibility to maintain a current registration, and in except in circumstances beyond your control, where you are not registered you will not be paid a salary. As you are a teacher whose teacher
registration is suspended, and therefore not registered in accordance with the Act…as
You are not entitled to any salary. I am not satisfied that the circumstances giving rise to you not having registration were beyond your control.
I now determine that you are no longer suspended on full pay. The suspension that I impose under ED4 is now ended. However, as your teacher registration is suspended, you are prohibited from teaching and I direct that you must not enter any DoE school. Accordingly you will no longer be paid salary, as a teacher, from the date of this letter."
The Commissioner's decision
83 MC complained that he had not been given an opportunity to respond to any allegations by the Department contained in the Secretary's letter of 16 September 2020, nor had he been asked what steps he had taken to control the issue of suspension of his registration at the time that decision was made; whether the circumstances were beyond his control: "Each of the processes which have led to the
suspension of my registration as a teacher have been matters which I have had no say in, not even being
contacted about and have had no control over." In summary – as the Commissioner noted – MC said
he had not been contacted about what control he "might have had over the process"; he had no control or choice in the situation and he wished for the Department to stand by the original decision to suspend him on full pay until the matter has been investigated.
84 The Commissioner said she found it difficult to understand how a decision could be made without providing any ability for a response from MC to set out the circumstances and steps he had taken within his control in relation to his registration. She said that without those submissions she was satisfied that the Secretary was unaware of the circumstances which were within or beyond MC's control.
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85 The Commissioner went on to say that "without reviewing the merit of the decision" she was satisfied that there was a lack of procedural fairness in the absence of seeking submissions and in particular, providing an opportunity for MC to provide submissions on the possible outcome of the decision making process. (The Commissioner took the view that the review was not one based on the merits but one only involving a process to "identify errors into which the Secretary fell." I will return to this point.) The Commissioner concluded:
"I find [the lack of opportunity] significant in the denial of natural justice, as the factors for consideration for this decision require clarification of what were the circumstances including steps taken by [MC], to enable the decision-maker to determine whether the circumstances to maintain his registration were or were not beyond his control."
The decision at first instance
86 The issues raised before the primary judge were essentially determined by his Honour as
follows.
An employee who does not perform any work duties is not entitled to the payment of salary unless he or she has some right to payment as a result of a provision in a contract or an industrial award, waiver of an employer's rights, or some other entitling circumstance.
In this case, MC was entitled to payment because of cl 7 of the Award and the issue of
circumstances beyond his control.
As to cl 7, the words clearly refer to the circumstances existing at the time when the question of payment of a salary to an unregistered teacher arises for determination; the words were not reasonably capable of interpretation so as to refer to circumstances that were within the employee's control at some past time, but were no longer within that person's control.
Accordingly, the exception in relation to circumstances beyond the employee's control relates to the situation at the time when the employee is not currently registered and the issue of payment of salary arises.
MC could have attempted to change the relevant circumstances by applying to the Magistrates Court for a review of the decision of the Teachers Registration Board, sought judicial review of the decision of the Registrar under the RWVP Act or tried to persuade the Board or the Registrar to reverse their decisions, but he was not in a position to exert control in relation to any of these things.
The only finding of fact reasonably open to the Secretary or the Commission was that on 2 October 2020, and at all material times thereafter, the circumstances relating to MC's registration were beyond his control.
The Commissioner did not err in failing to give any consideration to the evidence about MC being
later charged with a sexual crime, because such evidence was irrelevant. The provisions of s 51(6)(c) of the State Service Act were wide enough to empower the
Commissioner to give the directions to the Secretary she gave.
The grounds of appeal
87 There are presently nine grounds of appeal. The tenth one is the subject of an application to amend. On my analysis, the nine can be grouped into subject matters while the proposed tenth ground relates to a discrete issue.
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88 Grounds 1, 2, 4 and 5 concern the proper construction and application of cl 7. Ground 3 concerns the question of whether the Secretary, when acting in relation to the contract of employment and the Award exercises a statutory duty or public power amenable to correction for error.
89 Ground 6 and 7 concern the Commission's consequential powers following a review under s 50(1) of the State Service Act and raise the nature of that review, while grounds 8 and 9 relate to issues of procedural fairness concerning the Secretary's determination of 2 October 2020.
90 Ground 10 asserts that the Commissioner's decision was vitiated by fraud, using that word in the broad sense of "bad faith". I will deal with the grounds accordingly and, because of the conclusion I have reached, it is appropriate if I start with those that relate to cl 7 of the Award.
The clause 7 grounds
91 It is best if I set out cl 7 in full:
"TEACHER REGISTRATION
The responsibility to maintain a current registration with Teachers Registration Board rests with the individual employee.
In accordance with the Teachers Registration Act 2000, a teacher employee must have a current registration issued by the Teachers Registration Board.
Except in circumstances beyond the employee's control, where a teacher employee is not currently registered as detailed above, the employee will not be paid salary until a current registration certificate is issued."
92 There was much debate in the appeal about the construction of the clause and its application, or I should say, the third limb of cl 7. In the discussion, only the Union had enthusiasm for the proposition
that the clause excluded from consideration – as the primary judge had held – circumstances within or
without the employee's control at some past time, but were no longer within that person's control. Both
the Secretary and the Attorney-General submitted the contrary view was correct.93 The proper approach to the construction of awards and industrial agreements is set out in
WorkPac Pty Ltd v Skene [2018] FCAFC 131, 264 FCR 536 at [197]. The Court said:
"The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR
362 at 378 (French J). The interpretation '… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …': Amcor
Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of
Parliament (Holmes at 378–9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929]
AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a 'practical bent of mind' and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall,
Tracey and Flick JJ); Amcor at [96] (Kirby J)."
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94 The exercise remains a text based one with reference to context and purpose, bearing in mind the general considerations that arise from the subject matter being awards or industrial agreements. Having regard to the way the construction issue has been approached in all proceedings to date, I have not lightly come to the view that the clause does not operate in any of the ways advanced by the parties. At the risk of taking a narrow or pedantic approach, I would hold that the clause has no operation where the registration is not, or ceases, to be "current" because of the absence of a required qualification under s 11(2) of the TR Act.
95 In my opinion, cl 7 only applies where the employee is qualified to be registered but has not applied to be registered, or a registration has lapsed and the employee has not re-applied. There may be many reasons for such failures. I should also include the situation where an application has been made but communication or procedural (or similar) difficulties intervene. Importantly however, the question of circumstances beyond an employee's control is simply one of why their registration is not current, not why underlying qualifications are absent. I take that view for the following reasons.
96 The clause needs to be looked at as a whole. I think the wording of the clause is neither appropriate nor sufficient to give rise to considerations of registration not being current due to a lack of qualifications. The focus of the clause is on "current" registration. The first limb states that responsibility to maintain current registration rests with the individual employee. Why it might be thought it is the responsibility of someone else to maintain the person's registration, and what is meant by this part of the provision escapes me. Under s 12 of the TR Act, it is the potential registrant who is to apply.
97 The second limb is merely a reflection of the requirements of the TR Act; a teacher must have current registration. (Under s 16 of the TR Act, registration is for up to five years as determined by the Board.)
98 It can readily be seen that the effect is to make sure teachers maintain their registration; if they do not, they will not be paid unless the circumstances of their not having "current" registration are beyond their control. The plain object is to avoid difficulties that arise for the employer in having teacher employees who cannot teach due to lack of registration.[1] Were the clause construed otherwise, serious complications follow, as this case shows.
[1] Under the State Service Act the "Employer" is the Minister administering that Act, but the Head of the State Service performs and exercises the functions and powers of the Employer other than the power to issue Employment
99 One problem with construing the clause "otherwise" is that on its face – contrary to the Union's submission – it would also apply when registration is cancelled[2]. No reason was advanced as to why
that would not be so. If the requirement to maintain registration applies to the maintenance of the underlying qualifications, it is significant that those things include requirements of good character and of being fit to be a teacher. That requires the maintenance of standards of behaviour. If that interpretation of the clause is correct, it directly imposes an obligation on the employee in those behavioural respects. I very much doubt that was intended by the clause and it is not supported by the language used.
[2] Under s 24 of the TR Act the Board may cancel a person's registration after inquiry. Since 17 November 2020, under s 17BA the Board may suspend or cancel registration without conducting an inquiry if satisfied that the teacher does not hold vulnerable person registration, or that such registration has been suspended and the suspension has not been revoked.
100 The Court has no evidence about this, but it might be assumed that if an employee's registration is not current, then the Department is notified by the Board, or perhaps the Department carries out its own regular checks. In any event, for the third limb to come into play, an issue of whether there are circumstances beyond the employee's control must arise, and there must be some dialogue between the
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employee and the employer about why current registration has not been maintained. To that extent, the employer would have to consider the circumstances of why the current registration had not been maintained. That would almost always involve input from the employee.
101 If the clause extends to underlying qualifications for registration, then the employer – in effect the Secretary – is put in the position of looking into the reasons for that lack of qualification. That
could, as in this case, require noting the decisions of the Teachers Registration Board and the RWVP Act Registrar, and considering whether the employee could have exercised any control over those bodies. That inevitably goes back to the employee's antecedent conduct. That is, what gave rise to any decision by those bodies. Similarly, the inquiry might have to go directly to issues such as whether the employee is of good character.
102 More importantly, and to my mind of particular significance is that as in this case, assuming that circumstances beyond the employee's control include past circumstances over which there is no longer control, it means that in the exercise under cl 7 the Secretary might well have to consider allegations of misconduct which may or may not be denied. In the latter case, in order for a determination to be made under the clause, findings about that conduct would have to be made. For the employee to be paid, the Secretary would need to be satisfied that there was no conduct justifying the suspension. (Or at least, I suppose, that there was nothing cogent to give rise to a sufficient level of suspicion to justify suspension of registrations.)
103 The essential difficulty in this approach is highlighted by something said by counsel for the Attorney-General in the course of argument: "Now in the ordinary sense, conduct related reasons could
not be said to be outside of the person's control. Wrongly attributed conduct reasons….would be." It
hardly needs to be said that in that context, the exercise of deciding whether allegations were false or
not would involve fact finding about the employee's conduct.104 Determinations of the types I have mentioned would impose a significant burden on the
Secretary.
105 It must also be borne in mind that by any "clause 7 inquiry", if I can call it that, might well be concurrent with an ED5 investigation and a Teachers Registration Board inquiry under s 24B(2)(b). I have very grave doubts this was intended to be the way in which the clause operates. The simple operation of the clause assumes continuing qualifications for registration and is to ensure employees maintain current registration when not being paid, except when the failure to be currently registered is not their fault.
106 In its submissions, the Union supports the view of the operation of the clause as taken by the primary judge. It refers to the special circumstances that apply to teaching staff, and makes the following points:
Teaching staff are placed in a uniquely vulnerable situation in terms of being open to allegations
that would warrant a suspension under the TR Act or the RWVP Act. Those bodies are equally placed in the situation of an important duty of care; any potential or
alleged risk must be taken very seriously. These circumstances regularly lead to employees being suspended pending an investigation. Those investigations often result in the issue being found to be minor or non-existent breaches
of the Code or policy. There is a low threshold at which an employee's behaviour is investigated. 20 No 3/2023
107 The Union points to the possible length of these investigations, with that length being extended when other agencies become involved. All of those may be fair observations. But in my view, a construction that sees the clause operate in the way I have outlined, requiring in certain cases the Secretary to assess evidence of guilt or innocence of sometimes grave misconduct, is a very strained one. The construction I favour does, I suggest, give the clause a much more practical and certain sphere of operation. In this context, it should perhaps be noted that a clause in the Award in the form of cl 7 has existed since 12 February 2008, while the RWVP Act did not commence until 1 July 2014.
108 As with the task of statutory interpretation, the construction of award clauses is to give effect to the will of the parties as expressed in the agreement. Courts should give effect to that intention, but only as it is expressed in the agreement. The constructional task remains to explain the meaning of the text, not to remedy perceived legislative intention; "Construction is not speculation, and it is not repair":
Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9, 253 CLR 531 per Gageler and Keane JJ
at [65]. This may be a matter that needs to be squarely addressed in the Award. Indeed, in its submissions, the Union stated that the effect of the RWVP Act in this context is presently the subject of negotiations.
109 Ground 1 asserts that the suspension of MC's registration under the RWVP Act provided a separate basis, independent to the operation of cl 7, by which MC was not entitled to salary. In the appeal, the Secretary offered a number of examples where teachers may be lawfully disentitled to work, and would not be entitled to pay. The broad proposition is correct but if an award provides that an employee is to be paid in the absence of any entitlement to work or without performing any work, then the provisions of the award prevail: Gapes v Commercial Bank of Australia Ltd [1980] 41 FLR 27.
110 In any event, for the reasons I have given, ground 1 must succeed to the extent that the suspension of registration disentitled MC to salary, not as an alternative to clause 7 but because cl 7 had no operation. Ground 2 is a complaint about the primary judge's observation that although cl 7 does not expressly state a teacher will be entitled to pay to salary when they are not registered due to circumstances beyond their control, it should be interpreted as having that meaning. As argued, it was put as an alternative to ground 1 and it follows that I do not need to consider it. If I am wrong about the construction of cl 7, I would agree that the ground has no merit, for the reasons given by Geason J and Marshall AJ.
111 Ground 4 complains of an error in the primary judge's interpretation of what is meant by "circumstances beyond the employee's control." As earlier noted, his Honour took the view that the words did not refer to circumstances that were within the employee's control at some past time but were no longer within that person's control, and that accordingly, the exception relates to the situation at the time when the employee is not currently registered and the issue of payment of salary arises. This issue would seem to be a relevant one even on the construction of cl 7 I favour. I agree with the submissions of the Secretary and the Attorney. With respect, there is no reason to confine the circumstances to those which are presently within the person's control as opposed to being within their control at some past time. The focus is on what role the person played in the circumstances giving rise to the lack of current registration.
112 Ground 5 relates to the facts of this case, the error alleged being a failure to find that the circumstances of MC's suspension of registration were beyond his control. Because of my view of cl 7, it is not necessary for me to decide the point. Were it to be so, on the basis of the material now before the Court, I would accept the Secretary's submissions. Questions of causation arise. On the facts, the circumstances which gave rise to the suspension of MC's registration under the RWVP Act, and consequently the TR Act, were not beyond his control.
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Ground 10
113 Given the terms of this ground I will deal with it next, although there is no need for me to formally resolve it. The ground asserts that the decision of the Commissioner is vitiated because it was induced or affected by fraud. That fraud is said to consist of the failure of the parties to put before the Commissioner material evidence, namely that the allegations which caused the suspension under the RWVP Act and the TR Act were true, and that MC had admitted they were true.
114 The additional material put before this Court is the material that was in the Secretary's possession but which was not put before the Commissioner. The material withheld consists of the 1989 letter and two briefing minutes to the Secretary, one dated 16 September 2020, the other dated 28 September 2020 which shows that the Secretary had knowledge of the 1989 letter. A primary focus of the argument was the 1989 letter which, as explained earlier, is a letter from the then Director of the Southern Regional Office of the Education Department to the then Secretary of the Department.
115 The letter details a conversation said to have occurred between the Acting Principal of the relevant school and MC on 3 October 1989 during which MC admitted having had sexual intercourse with the student, then under the age of 16. The Director goes on to advise the Secretary that two days later he spoke to MC in the presence of the Acting Principal and the Acting Regional Superintendent during which MC was asked the direct question whether he had had sexual intercourse with the student, to which he replied, "Yes".
116 The evidence before this Court shows that the letter and briefing minutes were not put before the Commissioner by those representing the Minister because it was thought inappropriate that the contents were disclosed as Tasmania Police were yet to complete their investigations, and Departmental staff "did not want to do anything that would improperly interfere [with] the course of the ongoing police investigation". No legal advice was sought in relation that decision.
117 In effect, the Secretary further submits that MC ought to have admitted to the Commissioner that he was guilty of the sexual misconduct or, at the least it seems, that many years earlier he had admitted it to Departmental officers. The 1989 letter contains first and second hand assertions that he admitted to sexual misconduct with a young student. If the admissions were made, which appears likely, it is unlikely that he would not remember doing so.
118 Although MC did not disclose his guilt or admission of it to the Commissioner, he did not deny any wrongdoing, and although he complained of not being given an opportunity to respond to the allegations made in the Secretary's letter of 2 October 2020, the Commission's reasons concerning the lack of procedural fairness focused on him not being given an opportunity to explain how he might have exercised control over the actual decisions leading to his suspension.
119 In any event, the Secretary submits that the failure to put all relevant material before the Commission gives rise to jurisdictional error. The Secretary relies on the High Court's decision in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35, 232 CLR 189. For present purposes, that decision can be taken as authority for the proposition that, depending on the structure of the legislative scheme, if fraud disables a reviewing body from the due discharge of its imperative statutory functions, there is a fraud "on" the tribunal. The consequence is that a decision made is no decision at all, because the jurisdiction remains constructively unexercised. See in particular pars [24], [29]-[37], and [49]-[52].
120 SZFDE involved the fraudulent conduct of a third party migration agent which caused the relevant tribunal to infer the appellants had consciously elected not to appear, which in fact was not the case. There was no allegation that the appellants had any knowledge or notice of what the migration agent had done. The Court said it unnecessary for the resolution of the appeal to determine at large and
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in generally applicable terms the scope for judicial review for "third party fraud" of an earlier administrative decision, where the applicant for judicial review did not collude in the fraud practised on the administrative decision-maker or review body, and did not then learn of the fraud but complains of it in subsequent proceedings. Rather, the appeal should be resolved after close attention to the nature, scope and purpose of the particular system of review: [28]-[29].
121 At [47] the Court made it clear that the ultimate issue is the effect of third party fraud on the administrative decision-making process. The effect in that case was described as "stultifying the operation of the legislative scheme to afford natural justice". Their Honours were at pains to point out that the appeal turned upon the particular importance of the legislative provisions which provided for procedural fairness in being notified and heard before the tribunal; the third party had subverted the legislative scheme and "stultified" the intention of affording procedural fairness.
122 The Secretary does not seek to challenge the correctness of the Commissioner's position that the review under s 50 of the State Service Act was not a merits review. However, irrespective of the nature of review and leaving aside for the moment the question of the relevance of where the responsibility for the fraud rests, I am prepared to assume for present purposes that the failure to put before the Commissioner all of the material that was considered by the Secretary would disable the exercise of the jurisdiction. But there is the critical question of the identity of those who were involved in the fraud.
123 The law relating to third party fraud has subsequently been illuminated in cases before the Full Court of the Federal Court. It is now well established that for a decision to be vitiated the third party fraud must be one "on" the tribunal as such, not on a party alone, and in particular, the decision will not be vitiated if the aggrieved party was actively complicit in or recklessly indifferent to the fraud. See for instance: SZLHP v Minister for Immigration and Citizenship [2008] FCAFC 152, 172 FCR 170; Singh v Minister for Immigration and Border Protection [2016] FCAFC 141, 247 FCR 554; Gill v Minister for Immigration and Border Protection [2016] FCAFC 142, 248 FCR 398; Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213, 258 FCR 1; Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53, 269 FCR 464 at [56]-[57], [136]-[140] and the useful summary in Katragadda v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs [2020] FCAFC 143 at [44]-[56].
124 In the present case, there is no evidence that the Secretary did not know that Departmental officers had not disclosed the 1989 letter and his knowledge of it to the Commissioner, nor was there any suggestion of this in argument. In withholding the relevant material the Secretary was not trying to gain an advantage. The decision was motivated by a desire not to harm MC's interests in relation to criminal proceedings. But does a 'proper' motive distinguish this case from the application of the principle stated above? Can the Secretary nonetheless claim the benefit of a fraud on the Commission when, depending on the view taken of the facts, he was at least partly responsible for the fraud, actively complicit in it, or recklessly indifferent to the fraudulent conduct?
125 The facts of this case might lend themselves to a different outcome, but I am not persuaded that the present state of the law is such that a party might complain about the outcome of a decision where there was a fraud on a tribunal and when that party deliberately withheld information, albeit for benevolent or what might be regarded as 'proper' motives, or at least when it did not stand to gain. And to the extent that MC was guilty of a fraud on the Commission, the Secretary could have addressed the deficiency with information in his possession, but did not. No advice was taken as to how the matter might have been dealt with, without creating a risk for MC's position in the criminal investigation. To that extent, although no collusion or complicity, there was intentional acquiescence.
126 For those reasons, were it be necessary to decide the issue, I would refuse leave to add ground 10; it has no reasonable prospects of success.
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Ground 3
127 This ground involves a rather semantic argument by which it is sought to distinguish the decision to end the ED4 suspension with pay, from the decision to stop paying. The point is that the decision to pay or not, was a purely contractual one and one not amenable to review.
128 Section 50(1)(a) and (1)(b) respectively entitle an employee to make application to the
Commission for a review of the selection of a person or employer to perform certain duties and – relevantly to this case – of any other State Service action that relates to his or her employment in the
State Service. "State Service action" is defined in s 49 as meaning action by an officer or an employee but does not include an action to make an appointment under the Act. Clearly, the Secretary's decision to terminate the period of suspension on full pay falls within the definition and is liable to be reviewed under subs (1)(b). The ground has no merit.
Grounds 6 and 7
129 Ground 6 complains that the primary judge was wrong in holding that the Commissioner did not fall into error by failing to take into account evidence which was not before the Secretary on 2 October 2020. The evidence referred to is the Secretary's letter to MC's lawyers of 3 December 2020 which in turn, refers to the fact of MC having "now" been charged. The Commissioner took the view that her determination was on the material before the Secretary.
130 By ground 7, the Secretary contends that for a number of reasons the Commissioner's direction to the Secretary was not within the powers conferred by s 51(6)(c) of the State Service Act. Section 51(6) provides as follows:
"(6) In the determination of an application for a review, the Tasmanian Industrial
Commission may –
(a) refuse to grant the application for a review and, if appropriate, direct the Head
of Agency to take such action as the Tasmanian Industrial Commission considers
appropriate; or
(b) in the case of an application for a review under section 50(1)(a), grant the application and direct the Head of Agency to undertake again the selection in accordance with section 39 and undertake such other requirements as are imposed by the Tasmanian Industrial Commission; or
(c) in the case of an application for a review under section 50(1)(b), grant the application and recommend or direct the Employer or the Head of Agency or any person to whom the powers of the Employer or the Head of Agency have been delegated, to take such action as the Tasmanian Industrial Commission considers appropriate."
131 These grounds implicitly raise the nature of a review conducted by the Commission under s 50 of the State Service Act, a matter on which counsel for the Attorney-General made submissions, although the Secretary did not address the point. It is not necessary for me to resolve the issue but in deference to the submissions made on behalf of the Attorney, I will say something about it.
132 It will be recalled that the Commissioner said that a review is not undertaken based on the merits and that she could only identify errors into which the Secretary fell: "I do not have the power to make the decision on behalf of the Secretary, however, I am approaching this review with a sense of 'looking it over' with a view to correction, if required."
133 In taking that approach, the Commissioner adopted the view taken by the Commission President in a case in 2020. The President said that the role of the Commission was not to undertake a review of
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the decision on the merits.[3] He explained that the type of review was neither a de novo process, nor a merit review based on the material before the decision-maker, but rather a review with an eye to correction if the process miscarried. He added that the only review on the basis of "merit" was whether the decision-maker could not properly have reached the decision it did on the basis of the material before it; that is, Wednesbury error.
[3] The application in that case was under s 50(1)(b), but the President did not distinguish between the two types of review under s 50.
134 In effect, that approach could mean something akin to judicial review limited to the detection of jurisdictional error or vitiating error of statutory process; alternatively, something akin to an appeal by way of re-hearing on the material before the decision-maker where error needs to be shown.
135 In his reasons, the President referred to Pervan v Frawley [2011] TASSC 27, 20 Tas R 185 at [64], (a decision of mine). The passage cited is as follows (omitting footnotes):
"64...As a result of these matters, I need to say something about the proceedings both before the Commissioner, and in this Court. The application for judicial review seems to have proceeded on the assumption that the Commissioner, in acting under s50(1) of the SSA, was conducting a review in the sense of 'looking it over' with a view to correction, rather than in the sense of carrying out a de novo process. That would seem to be correct. The powers available to the Commissioner under s51(6) on the determination of an application for review, do not suggest a de novo process. Accordingly, the Commissioner was not required to re-determine the issue under cl 4.1
of the CD5 for himself. … "
136 I should say something about Pervan. CD5 is now effectively ED5. The "issue" referred to was the formation of a belief on reasonable grounds that a breach of the Code of Conduct may have occurred. As noted by counsel for the Attorney, the Commission President in his decision did not include reference to the next paragraph after the one cited. In that paragraph, [65], I added that there "seemed to be no dispute that the Commissioner could review the merits of the Secretary's decision; there was no argument that the Commissioner was restricted to looking only at the question of whether the Secretary had in fact formed the requisite belief."
137 Of course the reference in those passages to "the Commissioner" is to the State Service Commissioner, a position abolished in 2013. At the same time, s 50(1) was amended to provide for reviews by the Tasmanian Industrial Commission, a body external to the State Service structures. In any event, it can be seen that in Pervan the nature of a s 50 review and what it meant in that case was not the subject of any argument; the parties were agreed on those things.[4]
[4] It was agreed the Commissioner on review did not decide for himself whether he would form the belief, but was required to consider the material to determine whether reasonable grounds existed for the belief, as was the court on judicial review.
138 Before the primary judge in this case both parties[5] were agreed that the Commissioner's view was correct and the review was a limited one "to review whether the process was appropriate with an eye to correction if the process miscarried". His Honour expressed some doubt about the correctness of that view, noting that the Commissioner's view was based on my comments in Pervan at [64]. His Honour also noted that my comments were obiter and that the nature of the review had not been authoritatively determined in the Supreme Court.
[5] MC was represented at the hearing before the primary judge
139 Counsel for the Attorney-General submits that the narrow view taken by the Commissioner is erroneous; that having regard to the whole of the legislative scheme, the relevant review is a "comprehensive" administrative review in that while the Commission does not stand in the shoes of the decision-maker in the sense of directly substituting its own orders or directions, it is still required to
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conduct a review of the action with "an eye to correction". Counsel submitted that this is not to be understood as solely concerned with ensuring the appropriate process was engaged in, but is directed to the action or decision itself. Counsel also noted there is no express statutory limit to the material that is to be considered in such a review.
140 I am prepared to accept there is some merit in the submissions made on behalf of the Attorney. There is good reason to think that a s 50 review extends beyond the scope given to it by the Commissioner. It is axiomatic that what is involved in a particular scheme for review depends on an examination of the particular legislative provisions. Counsel noted the comment in Brandy v Human Rights and Equal Opportunity Commission [1995] 183 CLR 245 at 261 that the word "review" is commonly used in the context of comprehensive administrative review by an administrative tribunal of administrative decisions, or judicial control of administrative action, and submitted the former applied in relation to a s 50 review.
141 In Victoria Legal Aid v Kuek [2010] VSCA 29, 26 VR 700 at [21], [26] Buchanan JA (Weinberg JA and Ross AJA agreeing) said the word "review" is general and somewhat elastic; it "takes colour from its context" and "is appropriate to denote another body undertaking an inquiry as to whether the original decision-maker came to the correct conclusion"
142 Although s 51(6) does not enable the Commission to directly substitute its decision for that of
the decision-maker – an important attribute of a merits review function – it is empowered to grant an
application and give directions to the decision-maker to take such "action" as it considers appropriate. Invariably a direction to take an action would, in effect, amount to directing that a different decision be implemented. In addition to effecting a reversal or change in the decision, in a s 50(1)(b) review, the Commission can make recommendations. These things may denote more of a merits review than a process involving the detection of vitiating error.
143 The Industrial Relations Act 1984 governs the operation of the Commission. The Commission has jurisdiction to hear and determine any matter relating to or arising from an industrial matter (s 19). By s 19AA, the Commission is to review a matter in respect of which an application for review has been made under s 50(1) of the State Service Act. Of note is that s 19AA(2) enables the Commission to refer any such matter to the Ombudsman, the Integrity Commission or the Anti-Discrimination Commission or any other person or body that may be prescribed in the regulations. That also does not support the proposition that the Commission's task on review is limited in the way suggested by the Commissioner.
144 Additionally, relevant features are that the Commission is to act according to equity and good conscious without regard to technicalities or legal forms, and is not bound by the rules of evidence (s 20). It may regulate its own procedure and is empowered to summons people and take evidence on oath or affirmation (s 21). The Commission is a body well equipped to deal with a merits review function. It is an external tribunal at the first level of review above administrative decision-making. On the face of things, it is not constituted as a body to review decisions according to the principles of judicial review, and may be more happily regarded as "an instrument of government administration": see Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 per Smithers J at 335, cited in Kuek at [23].
145 If s 50 involves a merits review, the question for the Commission is whether a decision is "the correct or preferable one" which should be decided on the material before the Commission: Kuek at [23]; Drake v Minister for Immigration and Ethnic Affairs [1979] 46 FLR 409 at 419; Shi v Migration Agents Registration Agents Registration Authority [2008] HCA 31, 235 CLR 286 per Kirby J at [41], per Kiefel J at [140]. Irrespective of the precise nature of the review, the Commission undoubtedly has the power to receive further material.
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146 I turn to the grounds, which can be briefly dealt with. As to ground 6, the primary judge said that further material was irrelevant having regard to the view he had reached in relation to the construction of cl 7. It follows from my view of the construction of cl 7 that I would reach the same conclusion. If I am wrong about the primary construction point, I would hold that the material could be properly taken into account.
147 As to ground 7, it seems on any view that it is necessary to make a decision about it. The ground asserts that the primary judge erred in determining that the Commission's direction that the Secretary re-instate MC on full pay was within the power conferred by s 56(1)(c) when there is no such power. As argued in the written submissions there are about nine points to this. My attempt at a distillation of the wide-ranging submissions produces two quite different issues. One concerns the nature of the power itself. The other raises the same sort of contractual considerations raised under ground 3; that is, it is said the Commission has no power to direct the Secretary to do anything which involves the exercise of a private contractual right.
148 The first 'power' issue relates to the primary judge's statement that the Commission has the power to direct a decision-maker to take action that would ordinarily require a particular belief, the consequence being that the decision-maker is obliged to take that action whether or not he or she holds the particular belief that would ordinarily be required. As best I can understand the arguments, this first relates to two subject matters.
149 One relates to a "belief" about circumstances beyond an employee's control under cl 7 of the Award, the contention being that s 56(1)(c) does not enable a direction that the Secretary make a particular finding of fact. The other relates to what is said to be a subjective belief required to be formed under ED4 to enable suspension. The submission here is that there is no power to direct that a particular subjective belief be held; a secondary aspect being that in such circumstances it wrongly deems a jurisdictional fact to have been satisfied.
150 Before going on, some clarity about the facts is needed. As set out in par [2] of the Commissioner's reasons, the Secretary's determination being reviewed was that "invoking" cl 7 of the Award to cease MC's suspension with pay pursuant to ED4; in simple terms, terminating the status of suspension on full pay. The underlying reason for that termination was the absence of registration. Assuming cl 7 was not satisfied (or did not apply) the operation of the "no work, no pay" principle was the only outcome. The direction by the Commissioner to reinstate MC on suspension with full pay implicitly set aside the termination of the ED4 suspension. That direction to reinstate was not accompanied by any direction to re-determine the clause 7 issue of fact after hearing from MC, and purportedly put an end to the matter. (Under s 51(6)(c), the Commissioner could have directed the Minister to have the matter determined by a different delegate.)
151 Although not directly put in this way, within the first aspect of complaint about the cl 7 finding is a valid point. It is that the Commissioner made the direction based on a finding of a lack of procedural fairness, but the unqualified and unconditional direction simply assumed that the cl 7 exception applied. That is, the circumstances of MC's lack of current registration were beyond his control. Proceeding on that basis cannot be right. On either view of the Commission's role on a s 50 review, the Commissioner did not make any findings of fact about whether or not the circumstances were beyond MC's control. On one view the Commissioner had no power to make such findings, but on any view she simply did not address the issue.
152 The direction could only be lawfully made if the cl 7 exemption was found to have been satisfied. Based on what the Commissioner said about the lack of procedural fairness, the only direction that could have been made was one to the Secretary to re-determine the matter given the finding of the lack of procedural fairness, or alternatively to direct the Minister to have the matter re-determined by a
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different delegate. I would uphold ground 7 on the basis that the Commissioner had no power in the
circumstances of how the review was resolved, to make the impugned direction.153 I will comment on what remains of ground 7. As to the belief necessary under ED4 in order for a suspension to be implemented, it is not correct to simply call it subjective. The belief must be formed on reasonable grounds, and so involves objectivity in that sense. On a practical level, the direction of the Commissioner simply reversed the termination of the ED4 suspension on full pay, and did not involve directing the Secretary to hold a particular state of mind. In any case, the primary judge was correct. The Commission was entitled to make the direction under s 50(6) as within the legislative scheme; it matters not that a decision-maker might not hold the relevant belief, or not hold it at the time of a direction.
154 To the extent that the contractual issue has not already been covered, it can be shortly dealt with. It was not addressed in oral argument, but has some connection to the ground 3 argument. The termination of the ED4 suspension on full pay came about because of the lack of registration and the Secretary's views about the cl 7 circumstances. If the award applied MC was entitled to the benefit of it if he could bring himself within its terms. If not, application of the "no work, no pay" principle followed. The direction to reinstate MC on suspension with full pay was within power and simply had the opposite effect. It was not, in effect, a direction to do anything of a contractual nature.
Grounds 8 and 9
155 As I have noted, these grounds relate to the question of procedural fairness. Ground 8 asserts that an error of law on the part of the Commissioner in determining that the Secretary owed MC procedural fairness in making the decision of 2 October 2020. For the reasons I have given in relation to cl 7, there was no obligation to afford MC an opportunity to make representations about whether the circumstances were beyond his control. That question simply did not arise. I should add that the Secretary's attempts to take this argument outside any statutory context solely into the realms of contractual relationships are ill-fated. Put simply, if the Award applied, it had to be complied with: Gapes v Commercial Bank of Australia Ltd (1980) 41 FLR 27 at 30-31.
156 Ground 9 complains of an error in law in determining that the Secretary denied MC procedural fairness. The same argument is put in support of this ground as for ground 8. For the same reasons I have given in relation to ground 8, ground 9 should fail.
157 I add that if I am wrong about my primary construction of cl 7, and considerations of MC's conduct giving rise to the cancellation of registrations are needed in order to determine whether they
were within his control or not – I would nonetheless refuse relief on the asserted premise that MC was
not afforded procedural fairness. That is because I think this case clearly falls within that class of case in which the right to be heard, if exercised, would clearly have had no effect on the outcome, or would have no effect if the Commissioner had effectively remitted the matter by directing the Minister to have the matter re-determined by a different delegate.
158 Any breach was not a material one in the sense that there was no possibility of a successful outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141; Nobarani v Mariconte [2018] HCA 36, 265 CLR 236 at [38]-[39]; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3, 264 CLR 421 at [2].
Outcome
159 Ground 1 is made out in the sense I have explained. Grounds 4 and 7 also succeed (as does ground 5 if I am wrong about ground 1). I would allow the appeal, and I set out below the further orders I would make. Under s 47 of the Supreme Court Civil Procedure Act 1932 this Court is effectively
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confined to the powers exercisable by the primary judge. In light of my reasons, it would appear an exercise in futility to make an order under s 27(1)(b) of the Judicial Review Act 2000 referring the matter back to the Commission "for further consideration". However, the powers available to a court under that Act do not include the power to deal with the original subject matter giving rise to judicial review, except indirectly by way of a declaration of the parties' rights or directions to do, or refrain from doing, anything considered necessary to do justice between the parties: s 27(1)(c) and (d).
160 In the absence of an order referring the matter of MC's application for review back to the Commission, its jurisdiction in relation to that application will remain unexercised: SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107, 158 FCR 291 at [39]. How it deals with matter on remitter is a matter for it. As I doubt that the provisions of s 27(1)(c) or (d) can be properly called in aid, I will make an order under s 27(1)(b).
1 The appeal is allowed. 2 The orders of the primary judge made on 16 June 2022 are set aside. 3 The originating application dated 5 May 2021 is allowed. 4 The order and directions of the Commissioner made on 29 April 2021 are set aside. 5 The matter of MC's application for review is referred to the Tasmanian Industrial Commission for further consideration.
Directions.
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