Cleveland Freightlines Pty Ltd v Transport Workers Union of Australia, Kenneth W Lawson and Gary Sydney Jones
[1995] IRCA 110
•10 March 1995
CATCHWORDS
Industrial Law - conciliation and arbitration - validity of an award - proceedings taken under s.179 to recover wages in another court of competent jurisdiction - whether Industrial Relations Court of Australia has jurisdiction to consider and determine direct attack on validity on constitutional grounds and to declare the award invalid.
Australian Constitution, ss 51(xxxv), 75(v)
Conciliation and Arbitration Act 1904 (Cth), ss 4, 60, 98, 118A, 119
Industrial Relations Act 1988 (Cth), s 4, 150, 179, 412, 417
Industrial Relations Reform Act 1993 (Cth)
Industrial and Employee Relations Act 1994 (SA), ss 8, 14
Judiciary Act 1903 (Cth), s 44
Transport Workers' (Interstate Drivers) Award 1988
The Queen v Coldham; Ex parte Australian Workers Union (1983) 153 CLR 415
O'Toole v Charles David Pty Ltd (1991) 171 CLR 232
Matter No. SI 268 of 1994
CLEVELAND FREIGHTLINES PTY LTD v TRANSPORT WORKERS UNION OF AUSTRALIA, KENNETH W LAWSON and GARY SYDNEY JONES
VON DOUSSA J
ADELAIDE
10 MARCH 1995
IN THE INDUSTRIAL RELATIONS COURT )
)
OF AUSTRALIA ) No. SI 268 of 1994
)
SOUTH AUSTRALIAN DISTRICT REGISTRY )
BETWEEN:
CLEVELAND FREIGHTLINES PTY LTD
Applicant
AND:
TRANSPORT WORKERS UNION OF AUSTRALIA
First Respondent
KENNETH W LAWSON
Second Respondent
GARY SYDNEY JONES
Third Respondent
MINUTES OF ORDER
JUDGE MAKING ORDER : VON DOUSSA J.
WHERE MADE : ADELAIDE
DATE OF ORDER : 10 MARCH 1995
THE COURT ORDERS THAT:
There be an order in terms of paragraph 1 of the notice of motion dated 2 February 1995 issued by the third respondent dismissing the application herein.
The applicant pay the third respondent's costs of the proceedings in this Court.
As between the applicant and the first and second respondents there be no order as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT )
)
OF AUSTRALIA ) No. SI 268 of 1994
)
SOUTH AUSTRALIAN DISTRICT REGISTRY )
BETWEEN:
CLEVELAND FREIGHTLINES PTY LTD
Applicant
AND:
TRANSPORT WORKERS UNION OF AUSTRALIA
First Respondent
KENNETH W LAWSON
Second Respondent
GARY SYDNEY JONES
Third Respondent
REASONS FOR JUDGMENT
Coram: von Doussa J.
Place: Adelaide
Date : 10 March 1995
Proceedings in this Court have been commenced by Cleveland Freightlines Pty Ltd ("Cleveland") against the first respondent, The Transport Workers' Union of Australia, and against the second and third respondents who are two former employees of the applicant. The application reads:
"Application under Section 417 of the Industrial Relations Act 1988.
On the grounds appearing in the accompanying affidavit the applicant claims:-
A declaration that the Transport Workers' (Interstate Drivers) Award 1988 ('the Award'):
(a)Is invalid; and
(b)Was not made in settlement of an interstate industrial dispute.
A declaration that the applicant is not and has not at any time been obliged to provide to the second respondent or the third respondent any wages or conditions of employment purportedly provided for in the Award.
Such further or other order or relief as to the Court seems just."
By notice of motion the third respondent seeks to have the proceedings dismissed on the ground that the Court lacks jurisdiction to make the declaratory orders sought. The first and second respondents have not joined in the notice of motion: on the contrary they have expressed their support for the arguments of Cleveland opposing the notice of motion.
The accompanying affidavit filed in support of the application discloses that there are two actions on foot in the Industrial Court of South Australia wherein the second and third respondents respectively are seeking orders against Cleveland pursuant to s.179 of the Industrial Relations Act 1988 (Cth) ("the Act") in respect of wages allegedly owing to them pursuant to the Transport Workers' (Interstate Drivers) Award 1988 ("the Award"). These claims rely upon Cleveland being bound by the provisions of the Award, and upon the validity of the Award. The affidavit asserts that Cleveland disputes the validity of the Award on the ground that it was not made in settlement of an interstate industrial dispute. It is not necessary for the purposes of deciding the present jurisdictional challenge to expand upon the grounds for that contention.
An ancillary claim of invalidity is also made in the alternative in the affidavit. It is alleged that by order of the Australian Conciliation and Arbitration Commission made on 7 September 1984 the Transport (Interstate Drivers) Consolidated Award 1980 was varied by the insertion of a Schedule A which set forth a formulation for calculating wage rates due under the 1980 Consolidated Award. It is submitted that the application to identical facts of the method of calculating wages due under the 1980 Consolidated Award set forth in Schedule A, and clause 12 of the 1980 Consolidated Award itself, produce different outcomes. It is submitted that the Award, the validity of which is under challenge, was purportedly made by way of variation to the 1980 Consolidated Award, and that the alleged inconsistency between the schedule A inserted by the order made on 7 September 1984, and clause 12 of the 1980 Consolidated Award leads to invalidity in the 1988 Award, or at least those parts of the Award essential to the claims being made under s.179 in the Industrial Court of South Australia. This alternative argument has not been expanded before this Court. At first sight, it would not appear to raise any ground upon which the Award in relevant respects would become invalid. Rather, it would appear to raise a question of interpretation as to the proper calculation of wages due under the terms of the Award. Insofar as it does allege a ground of invalidity, the jurisdiction of this Court to decide that challenge is disputed.
Section 179(1) provides:
"179(1)Where an employer is required by an award or order to pay an amount to an employee, the employee may, not later than 6 years after the employer was required to make the payment to the employee under the award or order, sue for the amount of the payment in the Court or in any court of competent jurisdiction."
The "Court" since the commencement of the Industrial Relations Reform Act 1993 means the Industrial Relations Court of Australia: ss.4(1) of the Act. In the present case the second and third respondents have elected to bring their actions for the recovery of wages allegedly required to be paid by the Award in the Industrial Court of South Australia. That Court by the Industrial and Employee Relations Act 1994 (SA) has jurisdiction to hear such claims: ss.8, and 14(a)(ii). It is not disputed by the parties that the Industrial Court of South Australia, when constituted by a magistrate, is a court of competent jurisdiction within the meaning of s.179(1) of the Act.
Section 150 of the Act provides:
"150 (1) Subject to this Act, an award (including an award made on appeal):
(a)is final and conclusive;
(b)shall not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c)is not subject to prohibition, mandamus or injunction in any court on any account.
(2)An award is not invalid because it was made by the Commission constituted otherwise than as provided by this Act."
Notwithstanding the comprehensive language of s.150, it is well settled that the section does not preclude a challenge to the validity of an award on constitutional grounds in proceedings brought to enforce the award against a party said to be bound by it: The Queen v Coldham and Ors; Ex parte The Australian Workers' Union (1983) 153 CLR 415, O'Toole v Charles David Pty Ltd (1991) 171 CLR 232. The third respondent in support of his notice of motion acknowledges that if the action under s.179 had been commenced in this Court, this Court would have jurisdiction to consider and determine the validity of the Award notwithstanding s.150 of the Act, because Cleveland seeks to challenge validity on a constitutional ground, namely that the Award was made beyond the power of the Australian Conciliation and Arbitration Commission, which power has its source in s.51(xxxv) of the Constitution. The subject of para.(xxxv) is "Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State".
In O'Toole, the relevant proceedings were brought against the party allegedly bound by an award by way of an application for the imposition of a penalty, and for orders for the payment of wages, under s.119 of the Conciliation and Arbitration Act 1904 (Cth). Those proceedings were brought in the Federal Court of Australia, being the "Court" for the purposes of the Conciliation and Arbitration Act: ss.4(1), 98, 118A. It was held to be open to the respondent employer to challenge the constitutional validity of the award in those proceedings. The third respondent however alleges that in the circumstances of the present case, as the actions to enforce the liability of the employer under the Award have not been commenced in this Court, this Court does not have jurisdiction to consider and determine the validity of the Award. It is pointed out that whilst the present application is purportedly brought pursuant to s.417 of the Industrial Relations Act, that section is not a stand alone provision vesting jurisdiction in the Court. Section 417 provides:
"417 (1) The Court may, in relation to a matter in which it has jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.
(2) A suit is not open to objection on the ground that a declaratory order only is sought."
It is a section which expands the remedies available to the Court in a matter in which the Court otherwise has jurisdiction. The jurisdiction of the Industrial Relations Court of Australia is relevantly prescribed by s.412 of the Industrial Relations Act. That section provides:
"412 (1) The Court has jurisdiction with respect to matters arising under this Act in relation to which:
(a)applications may be made to it under this Act; or
(b)actions may be brought in it under this Act; or
(c)questions may be referred to it under this Act; or
(d)appeals lie to it under section 422; or
(e)penalties may be sued for and recovered under this Act; or
(f)prosecutions may be instituted for offences against this Act, other than a prosecution under section 407 or 485.
(2) For the purposes of section 44 of the Judiciary Act 1903, the Court is taken to have jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth holding office under this Act or the Coal Industry Act 1946.
(3) The Court has jurisdiction with respect to matters remitted to it under section 44 of the Judiciary Act 1903.
(4) The Court has such other jurisdiction as is vested in it by this Act or other laws made by the Parliament."
The third respondent contends that as no action or proceeding has been commenced in this Court which invokes any part of the jurisdiction bestowed by s.412(1), and in particular as there has been no action brought in this Court under s.179 which invokes an exercise of the jurisdiction under s.412(1)(b), the occasion cannot arise from the exercise of the declaration making power under s.417. Moreover it is contended that s.412(2) and s.412(3) have no application; and no other relevant jurisdiction is vested in the Court by the Act or by other laws made by the Parliament.
Cleveland in opposing the notice of motion concedes that s.417 is a remedy provision that may be exercised only in relation to a matter in which the Court otherwise has jurisdiction. However it is contended that the Court under s.412(1), has a more extensive jurisdiction than merely to hear an action brought under s.179. Attention is directed to the breadth of the grant of jurisdiction by the opening words of s.412(1): "The Court has jurisdiction with respect to matters arising under this Act in relation to which...(b) actions may be brought in it under this Act..." (emphasis added). It is contended that the liability of Cleveland to make a payment under the Award is a matter arising under the Act "in relation to which" an action may be brought in this Court. Cleveland's liability is dependent (in part) on the validity of the Award. The validity of the Award arises "with respect to" that matter. Thus far the contentions of Cleveland are plainly correct. The next, and critical step in Cleveland's argument then follows (and I cite from the written outline of submissions):
"The power of the Court to make a declaration (section 417) arises 'in relation to' (not 'in') a matter in which the Court has jurisdiction and not necessarily only in a matter in respect of which it is actually exercising jurisdiction. Therefore, provided that the Court has jurisdiction to hear the subject matter of the State proceedings (which it has), it also has power to make a declaration 'in relation to' that matter."
It is said that O'Toole supports this proposition. In short, Cleveland submits that even though actions under s.179 have been brought in another court, this Court has jurisdiction to make a declaration under s.417 because the jurisdiction of this Court could have been invoked had the second and third respondents chosen to do so, and an issue in those actions would have been the validity of the Award.
In my opinion the contentions of Cleveland should be rejected. Section 417(1), by empowering the Court to make binding declarations of right in relation to a matter in which it has jurisdiction contemplates that the Court will be so empowered in matters where that jurisdiction has been invoked, and is being exercised by the Court. The relevant enquiry is therefore whether the controversy which the parties have brought to the Court and seek to have resolved, that is the "matter", is one within the Court's statutory grant of jurisdiction. In the present case the controversy, or "matter", is the validity of the Award. No provision in the Act expressly empowers this Court to determine the validity of an Award made by the Industrial Relations Commission or its predecessor the Australian Conciliation and Arbitration Commission.
In O'Toole the jurisdiction of the Federal Court had been invoked by issue of proceedings under s.119 in the Federal Court. Whilst the High Court held that s.60 of the Conciliation and Arbitration Act (the predecessor of s.150 of the Act) did not protect an award from challenge on the ground that it exceeded the legislative power of the Parliament of the Commonwealth, nor did it preclude the Federal Court from determining any challenge to the validity of an award on constitutional grounds, the decision has to be understood in the context that the questions answered by the High Court concerned the exercise of jurisdiction by the Federal Court in proceedings then before it to enforce the impugned award. That is an important point of distinction from the circumstances of the present case.
The High Court held that the Federal Court did not have jurisdiction to entertain a direct attack upon the validity of an award made on constitutional grounds: see O'Toole; per Mason CJ at 250, Brennan J at 270 and Dawson J (with whom Toohey J agreed) at 306. The only court with jurisdiction to entertain a direct attack of that kind was the High Court.
Mason CJ at 250 said:
"It is also well settled that s.60 does not confer upon the Commission power that exceeds Parliament's legislative power under the Constitution or preclude any challenge to the validity of an award made by the Commission on constitutional grounds and that it must be read down accordingly...In conformity with this long-standing principle, this Court has, by means of prohibition granted under s.75(v) of the Constitution, often restrained the Commission and its predecessor, the Arbitration Court, from proceeding further in connexion with purported awards made otherwise than in settlement of an interstate industrial dispute. The provisions of s.60 do not qualify the jurisdiction to grant mandamus, prohibition or an injunction against an officer of the Commonwealth, though, subject to considerations affecting constitutional validity, the section validates awards of the Commission but only in accordance with the Hickman principle.
The Federal Court lacks the jurisdiction conferred by s.75(v) of the Constitution to grant relief against an officer of the Commonwealth holding office under the Act or its successor, the Industrial Relations Act 1988 (Cth): see s.39B(2)(a) of the Judiciary Act.
Brennan J at 270 said:
"It is accepted that s.60 does not (for the Parliament cannot) circumscribe the jurisdiction of this Court conferred by s.75(v) of the Constitution in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. By appropriate proceedings under s.75(v), a person whose interests are affected by a purported award may attack its validity directly. If the attack is successful, the purported award may be declared invalid. No court other than this Court and the Federal Court has been invested with jurisdiction under s.75(v), and the Federal Court is prohibited from exercising that jurisdiction against an officer of the Commonwealth holding office under the Act or, nowadays, under the Industrial Relations Act: Judiciary Act, s.39B(2)(a). It follows that no direct attack can be made on the validity of a purported award save in this Court."
The High Court however held that where the validity of an award arose in proceedings brought in the Federal Court, the Court necessarily had power to consider a collateral attack on grounds of constitutional invalidity, but that power arose in exercise of its jurisdiction in a matter under s.119 of the Conciliation and Arbitration Act. The validity of the purported award was not a matter separate from the matter arising under s.119. Brennan J at 271-272 said:
"When s.60(1)(b) of the Act purports to prohibit all collateral attack by prohibiting a court from entertaining a challenge to or calling in question an award, it purports to direct the way in which the court must treat the purported award. That is not to withdraw or limit the court's jurisdiction but to prescribe the legal effect to be attributed to an award in the exercise of the court's jurisdiction. The validity of a purported award is not a 'matter' separate from the matter arising under s.119 of the Act. One of the issues which falls for determination by a court exercising jurisdiction in a matter arising under s.119 is whether the instrument propounded as an award is in truth an 'award' within the meaning of that term in s.119. In determining that issue, the court is not exercising a jurisdiction in a distinct matter but is simply applying the relevant law, and that law includes the Constitution to which effect must be given in accordance with covering cl.5. That clause makes the Constitution and laws which are made 'under the Constitution' 'binding on the courts, judges, and people of every State and of every part of the Commonwealth'."
See also Mason CJ at 251-252, Deane, Gaudron and McHugh JJ at 293 and Dawson J at 307-308.
In the present case there are no proceedings in this Court raising a matter under s.179 wherein one of the issues would be whether "an employer is required by an award...to pay an amount to an employee...". Rather, Cleveland in its application to this Court seeks to raise the validity of the Award as a separate matter; the validity of the award is attached directly as the ground for the declaratory relief. For the reasons explained in O'Toole this Court does not have jurisdiction to determine such a matter. The power of this Court to determine the constitutional validity of the Award as an issue in the course of an application for the recovery of wages under s.179 does not arise where the proceedings under that section have been taken in another court of competent jurisdiction.
This Court is given jurisdiction by s.412(2) and 412(3) in respect of matters remitted to it by the High Court pursuant to s.44 of the Judiciary Act 1903. These provisions were included in the Industrial Relations Reform Act as it was recognised that without this specific grant of jurisdiction the Industrial Relations Court would not have jurisdiction to determine a direct attack on the validity of an award mounted under s.75(v) of the Constitution: see Industrial Relations Reform Bill 1993, Supplementary Explanatory Memorandum No. 9344271, p.58, Amendment No. 160. If proceedings were commenced in the High Court of Australia seeking a determination of the validity of the Award and appropriate relief under s.75(v) of the Constitution, and if that matter were remitted to this Court, this Court would then have jurisdiction to determine the validity of the Award. However, absent the remittal of such a matter from the High Court, this Court does not have jurisdiction to entertain a direct attack on the validity of the Award.
In my opinion the order sought by the third respondent on the notice of motion should be granted, and the application should be dismissed. However, it remains open to Cleveland to make a collateral attack on the validity of the Award by way of defence in the Industrial Court of South Australia and to adduce evidence necessary for that purpose. Alternatively, it is open to Cleveland to attack the validity of the Award directly in the High Court of Australia.
Both Cleveland and the third respondent have made application against the other for costs under s.347 of the Act on the ground that the other's proceeding was instituted without reasonable cause. In the circumstances I think it is appropriate that the application by Cleveland be dismissed with costs payable to the third respondent. There will be no order for costs as between Cleveland and the first and second respondents.
I certify that this and the 12
preceding pages are a true
copy of the Reasons for
Judgment of Justice von DoussaAssociate:
Dated:
Counsel for the applicant : Mr D J Bleby QC and
Ms S Bolzon
Solicitor for the applicant : Messrs Michell Sillar
Lynch and Meyer
Counsel for the 1st and 2nd : Mr P D Hannon
respondents
Solicitor for the 1st and 2nd : Messrs Duncan and Hannon
respondents
Counsel for the 3rd respondent : Mr T M McRae
Solicitor for the 3rd respondent : Messrs Stanley & Partners
Date of hearing : 6 March 1995
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