Criminal Justice Commission v Whitsunday Shire Council
[1995] QCA 50
•8/03/1995
IN THE COURT OF APPEAL
| SUPREME COURT OF QUEENSLAND | Appeal No. 27 of 1994 Appeal No. 31 of 1994 |
Brisbane
[C.J.C. v. The Council of the Shire of Whitsunday]
BETWEEN:
CRIMINAL JUSTICE COMMISSION
(Applicant) Appellant
AND:
THE COUNCIL OF THE SHIRE OF WHITSUNDAY
(Respondent) Respondent FITZGERALD P. MCPHERSON J.A.
PINCUS J.A.
Judgment delivered 08/03/1995
JOINT REASONS FOR JUDGMENT FITZGERALD P. AND MCPHERSON J.A.,
SEPARATE DISSENTING REASONS OF PINCUS J.A.
APPEAL NO. 31 of 1994
1. APPEAL ALLOWED.
2. MOTION TO BE REMITTED TO THE TRIAL DIVISION FOR THE HEARING TO BE CONCLUDED
3. INJUNCTION PREVIOUSLY GRANTED IS EXTENDED UNTIL FURTHER ORDER.
4. THE COUNCIL PAY THE COMMISSION'S TAXED COSTS, INCLUDING ANY RESERVED COSTS OF AND INCIDENTAL TO THE PROCEEDINGS THUS FAR.
APPEAL NO. 27 of 1994
1. APPEAL ALLOWED WITH COSTS.
2. ORDERS OF PRIMARY JUDGE SET ASIDE.
Constitution
INDUSTRIAL LAW - termination of employee
| Counsel: | R. Mulholland Q.C. with him Ms B.L. Springer for the Appellant D. Bennett Q.C. with him D.R. Cooper for the Respondent P.A. Keane Q.C. with him R. Campbell for the Attorney-General for the State of Queensland, Intervening |
| Solicitors: | Criminal Justice Commission for the Appellant Blake Dawson Waldron for the Respondent Crown Solicitor for the Attorney-General for the State of Queensland, Intervening |
Date/s of Hearing: 12/13 October 1994
| IN THE COURT OF APPEAL | [1995] QCA 050 |
| SUPREME COURT OF QUEENSLAND | Appeal No. 27 of 1994 Appeal No. 31 of 1994 |
| Before | The President McPherson J.A. Pincus J.A. |
[C.J.C. v. The Council of the Shire of Whitsunday]
BETWEEN:
CRIMINAL JUSTICE COMMISSION
(Applicant) Appellant
AND:
THE COUNCIL OF THE SHIRE OF WHITSUNDAY
(Respondent) Respondent
JOINT REASONS FOR JUDGMENT
FITZGERALD P. AND MCPHERSON J.A.
Judgment delivered 08/03/1995
This is the second time that this proceeding has come before this Court; on both occasions, the Council has argued that, so far as presently material, the provisions of the Criminal Justice Act 1989 relied on against it are invalid by virtue of s. 109 of the Commonwealth Constitution.
The Commission's action against the Council is based on the Commission's allegation that the Council proposes to dismiss its Shire Clerk because she "assisted the Commission in the discharge of its objects, functions and responsibilities in [a] manner referred to in s. 103" of the Criminal Justice Act; s. 131 of that Act prohibits the Council from taking that step (of s. 50A of the Jury Act 1929), and, by s. 104 of the Criminal Justice Act, the Supreme Court can grant an injunction on the application of the Commission to restrain the Council from doing so. The Council contends that the Queensland Parliament has no power to enact such provisions.
The Queensland Local Government Officers' Award 1992 (Cth) applies to the Shire Clerk's employment by the Council and, on the first occasion, the Council's argument was that, subject to any requirements as to notice and payment, that Award permitted the Council to terminate the Shire Clerk's employment for any reason and State legislation could not prohibit the Council from doing so: cf Metal Trades Industry
Association of Australia v. Amalgamated Metal Workers' and
Shipwrights' Union (1983) 152 C.L.R. 632; Dowling v. CSR Wood Panels (1992) 46 I.R. 16; cf. Dao v. Australian Postal Commission (1987) 162 C.L.R. 317. That argument was rejected in a judgment delivered on 28 July 1994. If the material clause (or clauses) in the Award had the operation for which the Council contended, the Award would, to that extent, be in conflict with s. 170DF of the Industrial Relations Act 1988 (Cth) ("the Commonwealth Act"), and the offending clause or clauses in the Award would be invalid or have to be read down to avoid that conflict. The Council's present argument is that it is because of the Commonwealth Act that ss. 104 and 131 of the Criminal Justice Act, so far as presently material, are denied valid operation by s. 109 of the Constitution. It should be noted immediately that this is a very different argument from that unsuccessfully presented by the Council by reference to the Award; whereas the Award purported to permit the Council to dismiss the Shire Clerk in circumstances in which the Criminal Justice Act prohibited dismissal, the Commonwealth Act also prohibits dismissal in specified circumstances. Although the particular circumstance in which dismissal is prohibited by the Criminal Justice Act may not entirely correspond with one or more of the circumstances in which dismissal is prohibited by the Commonwealth Act, it was not submitted that that gave rise to any relevant conflict. Nor was it seen as important by the Council that the remedy under the Criminal Justice Act is given to the Commission, and it is not provided, expressly at least, that the remedy is given to the Commission on behalf of the employee. The Council's argument is founded on the absence from the Commonwealth Act of a power to restrain dismissal, which is contained in the Criminal Justice Act.
The material provisions of the Commonwealth Act are contained in Part VIA "Minimum Entitlements of Employees", Division 3 "Termination of Employment". The object of that Division is to give effect to a number of international Conventions and Recommendations to which Australia is a party, including the Termination of Employment Convention, 1982, and the Termination of Employment Recommendation, 1982, which are reproduced in Schedules 10 and 11 of the Commonwealth Act: see sub-ss. 4(1) and 170CA(1). See also s. 3, which sets out the general objects of the Commonwealth Act. Plainly, the material provisions of the Commonwealth Act are intended to establish "minimum entitlements" for employees in respect of "termination of employment" by reference to the international standards endorsed by the Commonwealth by its adoption of the Termination of Employment Convention and Recommendation; the Commonwealth Parliament is empowered to enact such legislation by s. 51(xxix) of the Constitution: The Commonwealth v. Tasmania (The Tasmanian Dam Case) (1983) 158 C.L.R. 1. It is unnecessary for present purposes to consider which aspects of the Commonwealth Act could also be supported by other heads of Commonwealth legislative power (see ss. 5 and 7A); the Commonwealth can only validly legislate to establish "minimum entitlements" for employees generally by reference to s. 51(xxix) of the Constitution and the Termination of Employment Convention and Recommendation, and cannot prescribe "minimum entitlements" for employees generally which exceed the standards expressed in that Convention and Recommendation.
Section 170DF of the Commonwealth Act, which is in Subdivision B of Division 3 of Part VIA, prohibits an employer from terminating an employee's employment for any one or more of a number of specified reasons, including:
"(e) the filing of a complaint ... against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities ...".
Sub-section 170EA(1), which is in Subdivision C ("Remedies in respect of unlawful termination"), enables an employee to apply to the Industrial Relations Court of Australia "for a remedy in respect of termination of his or her employment".
(The Industrial Relations Court of Australia was created by
sub-s. 361(1) of the Commonwealth Act, and has exclusive
jurisdiction to the extent provided by s. 414.) Section
170EE states what remedies may be granted by the Industrial
Relations Court of Australia; these include an order for
reinstatement. However, unless it is satisfied that it is
inappropriate to refer the matter to the Australian
Industrial Relations Commission for conciliation, the
Industrial Relations Court of Australia cannot grant a
remedy until the Commission certifies that it has been
unable to settle the matter by conciliation: ss. 170EC and
170ED. Further, the Industrial Relations Court of Australia
cannot grant an injunction to restrain an employer from
terminating an employee's employment: ss. 170EH, 419 and
431; Dunham v. Randwick Imaging Pty Ltd (1994) 122 A.L.R.
323; Tognolini v. Burnett Petroleum Distributors Pty Ltd
(1994) 122 A.L.R. 497; Automotive Food Metals and
Engineering Union v. Northern Iron and Brass Foundry (1994)
126 A.L.R. 106.
However, Subdivision C of Division 3 of Part VIA of the
Commonwealth Act is not given exclusive operation in
relation to "remedies in respect of unlawful termination".
Section 170EB of the Commonwealth Act provides:
"170EB. The [Industrial Relations Court of Australia] must decline to consider or determine an application under section 170EA if satisfied that there is available to the employee by or on whose behalf the application was made an adequate alternative remedy, in respect of termination, under existing machinery that satisfies the requirements of the Termination of Employment Convention."
Since 30 March 1994, when the Industrial Relations Reform Act 1994 (Queensland) was assented to, the Industrial Relations Act 1990 (Queensland) (the "Queensland Act") has contained provisions in Part 12 "General Conditions of Employment", Division 5 "Dismissal", which generally correspond to provisions in Part VIA, Division 3 of the Commonwealth Act; like Part VIA, Division 3 of the Commonwealth Act, Part 12, Division 5 of the Queensland Act is intended to give effect to the Termination of Employment Convention 1982 and the Termination of Employment Recommendation, 1982, and a number of other international Conventions and Recommendations to which Australia is a party: Queensland Act sub-s. 5(1) and s. 288.
Not surprisingly, s. 170EB of the Commonwealth Act has caused uncertainty as to what is the appropriate forum and law applicable in a number of disputes. However, in
Australian Municipal, Administrative Clerical and Services
Union v. Gold Coast Community Options Assoc. Inc. (1994) 124 A.L.R. 505, the Industrial Relations Court of Australia held that the Queensland Act makes available "an adequate alternative remedy, in respect of ... termination, under ... machinery that satisfied the requirements of the Termination of Employment Convention", and, implicitly, that such "machinery" was "existing machinery" within the meaning s. 170EB of the Commonwealth Act notwithstanding that the material Commonwealth provisions came into force (on 22 December 1993) before the corresponding Queensland provisions: see also Liddell v. Lemke N.I. (unreported judgment of the Full Industrial Relations Court of Australia delivered 15 December 1994).
In our opinion, the Gold Coast Community Options decision should be followed by this Court as a matter of comity and, perhaps more importantly, to avoid a multiplicity of proceedings, or, even worse, an inability to bring proceedings; it would be extremely unsatisfactory for this Court to hold that disputes which the Industrial Relations Court of Australia held it could not, or should not, consider also could not, or should not, be considered by a Queensland court or tribunal.
However, it was left open in the Gold Coast Community Options case whether "the remedies provided under the Queensland Act" are available to an employee who is "subject to a federal award". The basis for that qualification was that Dowling v.CSR Wood Panels had "determined ... that the Queensland Commission did not have power in respect of persons who had been employed under federal awards where those awards dealt with questions arising out of termination of employment". The reason for that conclusion in Dowling v. CSR Wood Panels, in which judgment was given on 23 July 1992, prior to the material provisions of either the Commonwealth Act or the Queensland Act coming into operation, was that the operation of the Queensland legislation, as it then stood, was inconsistent with the relevant federal award. That is no longer the case.
Because of the effect of the Commonwealth Act on the Award there is no inconsistency between the Award and either the Queensland Act or the Criminal Justice Act. Further, there is no indication in either the Commonwealth Act or the Queensland Act that the Queensland Act is not intended to apply in relation to employees who are subject to federal awards which do not contain valid inconsistent provisions with respect to termination. Nor is there any indication in the Criminal Justice Act that it is not intended to apply in relation to such employees.
However, the Council argues that, by virtue of the Commonwealth Act, the material provisions of the Criminal Justice Act do not have any valid operation, whether in respect of employees who are subject to federal awards or other employees.
At its broadest, the argument for the Council was that the Commonwealth Act is intended to exhaust the subject-matter to which it relates, dismissal of employees, to the exclusion of any other law: see, e.g., McWaters v. Day (1989) 168 C.L.R. 289. However, the intent of the Commonwealth Act is the opposite of an intent to cover the field; provided that State law makes available to employees "an adequate alternative remedy, in respect of ... termination, under ... machinery that satisfies the requirements of the Termination of Employment Convention", the intent of the Commonwealth Act is that the Industrial Relations Court of Australia cannot grant a remedy, but that an employee's remedy "in respect ... of termination" is to be found in, and granted under, State law.
The Council's next argument was that the Commonwealth Act evinces an intention that State law which provides "an adequate alternative remedy, in respect of ... termination, under ... machinery that satisfies the requirements of the Termination of Employment Convention" must not provide any additional "remedy, in respect of ... termination". (We will assume that the impugned provisions of the Criminal Justice Act are "in respect of ... termination" within the meaning of the Commonwealth Act, as to which see Siagian v. Sanel Pty Ltd (1994) 122 A.L.R. 333.) This argument is expressed in various ways; e.g., that the Commonwealth Act leaves no room for operation of a State scheme restricting dismissal of employees except as provided by s. 170EB, and that section only saves or permits State provisions of the kind mentioned in it, which are provisions which satisfy the requirements of the Termination of Employment Convention and Recommendation. However, the restriction contended for by the Council is not to be found in the natural meaning of s. 170EB of the Commonwealth Act, or required by that Act's evident purpose, which, as earlier stated, is to establish "minimum entitlements" for employees in respect of termination of employment by reference to the Termination of Employment Convention and Recommendation. While State legislation must provide "an adequate alternative remedy, in respect of ... termination, under ... machinery that satisfies the requirements of the Termination of Employment Convention", supplementary entitlements which are consistent with the minimum entitlements provided by the Commonwealth Act are neither expressly nor implicitly prohibited.
A somewhat similar, but more confined, argument for the Council was that a power to grant an injunction to restrain the dismissal of an employee contrary to s. 170DF was inconsistent with the Commonwealth Act, which does not permit the grant of such an injunction by the Industrial Relations Court of Australia, but provides for that Court to grant relief only after termination of employment and ordinarily only after conciliation has failed.
However, once again, the grant of limited powers by the Commonwealth Act to the Industrial Relation Court of Australia must be seen in the context of the Termination of Employment Convention and Recommendation which effectively define the limit of Commonwealth legislative power (so far as presently material). The Convention and Recommendation make no provision for an injunction to restrain dismissal or other remedy prior to termination. The Commonwealth Parliament's lack of legislative power to grant a power to restrain dismissal to the Industrial Relations Court of Australia cannot warrant an inference that the Commonwealth Parliament intended that such a remedy should not be granted by State legislation.
Further, the Termination of Employment Convention and Recommendation do not require conciliation as a prerequisite to the grant of a remedy such as reinstatement or compensation, although cl. 14 of the Recommendation permits such a requirement to be imposed. Both the Commonwealth Act (ss. 170EC and 170ED) and the Queensland Act (ss. 296 and 297) provide for such a procedure. However, neither the Convention and Recommendation nor either of the industrial relations statutes is concerned with such a requirement as a preliminary to an injunction to restrain dismissal; nor could it be otherwise, since the remedy of an injunction to restrain dismissal is not one of the "minimum entitlements" which the Convention and Recommendation and the Commonwealth Act and State Act are intended to provide. Further, the obvious industrial benefits of conciliation rather than coercion which are present after a disputed dismissal are less pressing when the remedy sought is to prevent dismissal taking place.
The Council's only other point was that the Criminal Justice Act provisions are not in the Queensland Act, and it is the Queensland Act machinery which satisfies s. 170EB of the Commonwealth Act. However, once again this argument is based on an incorrect premise, which depends upon the erroneous proposition that the Commonwealth Act provides implicit restraints upon State legislative power to grant remedies which are supplementary to, and consistent with, the "minimum entitlements" provided for by the Commonwealth Act.
In summary, in our opinion, the material provisions of the Criminal Justice Act are not inconsistent with the Commonwealth Act or, as earlier held, the relevant award.
Accordingly, the appeal should be allowed and the motion remitted to the Trial Division for the hearing to be concluded, preferably by the Trial Division Judge who has dealt with the motion to this point. The injunction previously granted is extended until further order. The Council must pay the Commission's taxed costs, including any reserved costs, of and incidental to the proceedings thus far.
The above relates to appeal no. 31 of 1994. Appeal no. 27 of 1994 was in substance dealt with at the previous hearing, but no formal order has yet been made. In that appeal, it will be ordered that the orders of the primary judge be set aside and the appeal allowed with costs.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 27 of 1994. Appeal No. 31 of 1994.
Brisbane
| Before | Fitzgerald P. McPherson J.A. Pincus J.A. |
[CJC v. Whitsunday Shire Council]
BETWEEN:
CRIMINAL JUSTICE COMMISSION
Appellant
AND:
THE COUNCIL OF THE SHIRE OF
WHITSUNDAY
Respondent
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 08/03/1995
The history of this proceeding is set out in the reasons of McPherson JA, relating
to an earlier hearing, delivered on 28 July 1994. The question argued then was whether
certain provisions of the Criminal Justice Act 1989 ("the CJ Act") validly operate so as
to empower the Supreme Court of Queensland to grant an injunction under the CJ Act
restraining the appellant Council from dismissing its shire clerk, Yolanda Brooks; it was
said that they do not, because s. 109 of the Constitution makes certain provisions of a
Federal industrial award prevail over them. The Court then continued an interim
injunction restraining dismissal, which had been granted below; that is still in force.
During the first hearing which resulted in the reasons delivered on 28 July 1994, there was some discussion of provisions inserted in the Industrial Relations Act 1988
(Cth) ("the Commonwealth Act") by Act No. 98 of 1993. The amending Act inserted a
Part VIA ("the Commonwealth provisions") the effect of which was, so far as relevant, to
insert provisions relating to the dismissal of employees; they had come into effect on
30 March 1994, before the first hearing; but, for reasons which have not been
explained, they were not then relied on by the respondent Council.
At a further hearing, the relevant provisions of the Commonwealth Act - i.e. those
which came into force on 30 March 1994 - were argued to have an effect of the same
kind as had been, at the first hearing, attributed to the relevant Federal award: it was
said that under s. 109 of the Constitution the Commonwealth provisions invalidated, so
far as relevant, provisions of the CJ Act relied on to give this Court jurisdiction to enjoin
Ms Brooks' dismissal. The argument which was advanced on behalf of the Council at
the first hearing was not repeated, but Mr David Bennett Q.C., who led for the Council,
indicated that he stood by it; Mr Bennett conceded, however, that the award he had
then relied on is in part repugnant to the Commonwealth provisions.
At the first hearing the s. 109 argument based on the Federal award was for
procedural reasons not disposed of, although McPherson JA expressed his view on
point. It is necessary for the Court finally to deal with that submission, but it is
convenient to begin with what is plainly the principal point, namely the alleged
inconsistency of the relevant provisions of the CJ Act with the Commonwealth
provisions.
As is explained in the reasons of McPherson JA referred to above, the CJ Act
creates by s. 131 an offence of "victimisation", defined as being committed by one who:
"prejudices, or threatens to prejudice, the safety or career of any other person...because [that] person...has...assisted the Commission in the discharge of its objects, functions and responsibilities in any manner referred to in s. 103..."
Section 103 of the CJ Act refers inter alia to giving evidence to the Commission and to
assisting the Commission by furnishing information. Under s. 104 of the CJ Act the
Supreme Court may, on the application of the Commission, grant an injunction, interim
or final, in relation to a contravention of s. 131, and that power may be exercised
whether or not it appears to the court that the person sought to be restrained "intends to
engage again, or to continue to engage" in the relevant conduct, and whether or not that
person "has previously engaged in conduct of that kind": s. 104(5)(a) and (b).
The general effect of these provisions is that the Supreme Court has a very wide
discretion to grant an interim or final injunction to restrain retaliatory action against
people who give evidence to the Commission or otherwise assist it. The Council's
contention is not that these provisions are wholly invalid, but that they cannot validly
operate to the extent that they are inconsistent with the Commonwealth provisions, and
that they are so inconsistent insofar as they purport to apply to the present case. The
circumstance which gives rise to the potential operation of s. 109 is that an injunction is
sought to restrain dismissal of Ms Brooks on the ground of assistance she gave to the
Commission in the course of the Commission's looking into allegations of corruption by
Councillors in the shire; this subject matter may be thought to be covered by the
Commonwealth provisions.
The relevant Commonwealth provisions are more complex and harder to epitomise than those of the CJ Act; it is necessary to sacrifice completeness for the sake of reasonable brevity. Section 170CA says the object of the relevant Division in
which the relevant provisions of the Commonwealth Act are found is to give effect to
certain international instruments including the Termination of Employment Convention.
In construing such a Convention, when it or part of it becomes part of domestic law,
"broad principles of general acceptation" must be adopted: The Shipping Corporation
of India Ltd v. Gamlen Chemical Co. (Australasia) Pty Ltd (1980) 147 C.L.R. 142 at
159. Under s. 170BB of the Commonwealth provisions "an expression has the same
meaning in this Division as in the Termination of Employment Convention"; the English
text of that Convention is to be found in Schedule 10 to the Act. Section 170DB
prohibits the termination of an employee's employment by an employer unless there has
been given a period of notice in accordance with the section, or compensation instead
of notice, unless the employee is guilty of serious misconduct. The section has a table
setting out the requisite periods of notice, depending on the length of service, and a
fairly elaborate explanation of the way in which the amount of compensation is to be
calculated.
Section 170DC requires that an employer not terminate an employee's
employment for reasons related to conduct or performance without, to put it simply,
according natural justice. It was contended that breach of this statutory prohibition does
not make the termination ineffective. It is unnecessary to discuss the correctness of that
view; the effect of the Commonwealth provisions on the operation of the general law of
employment appears to be unclear. Section 170DD requires the Commonwealth
Employment Service to be notified of intended terminations of 15 or more employees
for certain particular reasons, which are specified. Section 170DE prohibits
termination of employment unless there is a valid reason of a certain kind for doing so,
and the section explains what sort of reason that must be. Section 170DF says an
employer must not terminate for any one or more of certain reasons, which are listed;
the relevant one for present purposes is (e):
"the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities".
Section 170DF(1) has an appearance of comprehensiveness; it contains qualifying
provisions in subss. (2) and (3). There was some discussion before us as to the
meaning of the word "employer". It was contended, and I think rightly, that having regard
to the origin of the Commonwealth provisions they should not be read so narrowly as to
treat the word "employer" in para. (e) as excluding the Councillors, being members of
the Council.
Section 170EA enables employees to apply to the Industrial Relations Court of
Australia for a remedy in respect of the termination of employment. Section 170EC
requires the Court not to consider the merits of an application of that kind unless the
matter has been referred to the Australian Industrial Relations Commission or the Court
is satisfied that it is not appropriate to do so. Section 170ED deals with the
Commission's conciliation function. Section 170EE, repealed and replaced on 30 June
1994 by Act no. 97 of 1994, deals with the remedies the Industrial Relations Court may
grant in respect of contraventions; in a case of the present kind the court might require
the employer to reinstate the employee, in certain circumstances, or to pay
compensation - the amount being limited in a fairly elaborate way.
An important distinction between the powers of the Supreme Court under the CJ
Act and those of the Industrial Relations Court under the Commonwealth provisions is
that, as it seems to me, the Industrial Relations Court may not grant an injunction to
restrain termination which has not yet taken place; but this limitation is not absolutely
clear. Section 170EE says that:
"Nothing in s. 170EC or in this section limits the Court's power to make an interim or interlocutory order in relation to an application under s. 170EA."
It is possible to read the expression "interim or interlocutory order" as including an
injunction quia timet, but that view has not been adopted in the Industrial Relations
Court: Dunham v. Randwick Imaging Pty Ltd (1994) 122 A.L.R. 323 (Wilcox CJ),
Tognolini v. Burnett Petroleum Distributors Pty Ltd (1994) 122 A.L.R. 497, Automotive
Food Metals and Engineering Union v. Northern Iron and Brass Factory (1994) 126
A.L.R. 106; the latter two cases were decided by Spender J. Accepting these
authorities, I proceed on the basis that the power of the Industrial Relations Court in
such matters is markedly narrower, so far as the granting of injunctive relief goes, than
that given to the Supreme Court under the CJ Act. The absence of power to restrain a
threatened termination of employment is a reason for doubting whether the
Commonwealth provisions were intended to cover the whole field of regulating
dismissal of employees, (or to cover the whole of the narrower field of inhibiting
dismissal on such a ground as is indicated in para. (e) of s. 170DF(1), which paragraph
is quoted above). Mr Bennett argued in effect that this deliberate omission did not
indicate an intention to leave the question of quia timet injunctions to State action, but
rather an intention that there should be no statutory provision for such injunctions.
The only Commonwealth provision which gives a direct indication of the
legislation's intention, so far as "covering the field" is concerned, is s. 170EB:
"The Court must decline to consider or determine an application under section 170EA if satisfied that there is available to the employee by or on whose behalf the application was made an adequate alternative remedy, in respect of the termination, under existing machinery that satisfies the requirements of the Termination of Employment Convention".
It is plain enough that the provisions of the CJ Act do not in themselves satisfy
the requirement of that Convention; for example, the first substantive provision of the
convention, Article 4, reads:
"The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service".
Nothing in the CJ Act deals with that subject.
Consideration of this aspect is complicated by the fact that the State of
Queensland has itself passed legislation to give effect to the international instruments
mentioned in the Commonwealth provisions; these are to be found in Division 5 of the
Industrial Relations Act 1990 ("the State I.R. Act"). Although the effect of those
Queensland provisions is not of central importance, for present purposes, something
should be said about them. It has been held in the Industrial Relations Court that these
provisions of the State I.R. Act fulfil the description in s. 170EB of the Commonwealth
Act - i.e. as providing an adequate alternative remedy in respect of the termination of an
employee: A.M.A.C.S.U. v. Gold Coast Community Options Association Inc. (1994)
124 A.L.R. 505. On that ground, Spender J declined to consider a particular
application brought in the Industrial Relations Court. It is unnecessary to express a view
as to the correctness of the decision, as the present case may be disposed of without
doing so. It should be noted, however, that what his Honour said was confined to the
case of persons not subject to a Federal award; the decision therefore would not
directly apply to one such as Ms Brooks. In qualifying his reasons in that way Spender J
relied upon a decision in the Queensland Industrial Court, Dowling v. CSR Wood
Panels (1992) 46 I.R. 16. Reference to Dowling's case shows that the court there relied on provisions of a Federal award to reach the conclusion that the Queensland Industrial
Commission had no jurisdiction to deal with an application for reinstatement, on the
ground that the matter in issue was dealt with by the award; reliance was placed on s.
152 of the Commonwealth Act, as well as on s. 109 of the Constitution. Section 152 is,
to put it generally, a provision akin to s. 109 of the Constitution, save that it deals with
inconsistency between State laws and Federal awards (on the same subject). I mention
Martindale v. British Petroleum Refinery (Kwinana) Pty Ltd (1992) 46 I.R. 87, a decision
whose result is broadly consistent with that arrived at by Moynihan P in Dowling's case.
In my opinion, there is no provision in the Federal award in issue here which is
operative and bears upon the issues between the parties. The Commonwealth
provisions and the relevant parts of the award cannot stand together; the provisions of
the award must give way. The provisions as to notice of termination in the award are, it
is conceded, quite inconsistent with those in the Act and I can find nothing relevant, in
the other provisions of the award relating to termination, which could be reconciled with
those in the Commonwealth Act.
It follows that the issue which was raised by the Council in the first hearing,
namely whether the provisions of the CJ Act were inconsistent with those of the award,
was immaterial; none of the provisions in the award which bear upon the issue in the
case can have any effect, because they are repugnant to the Commonwealth Act.
To return to the question of the application of s. 170EB to the case, the
conclusion I have reached, that the remedy available under the CJ Act is not one such
as is mentioned in s. 170EB, does not necessarily make that section irrelevant. First, one must consider whether, by combining the effect of the CJ Act with that of the State
I.R. Act, one may treat the whole as constituting "an adequate alternative remedy...under
existing machinery that satisfies the requirements of the...Convention". In my opinion, to
adopt that approach would be to unduly strain the language of s. 170EB. The remedy
under the CJ Act must be considered separately from that under the State I.R. Act; the
former is quite distinct from the latter. If, as has been held in the Industrial Relations
Court in the decision I have mentioned, there is an adequate alternative remedy under
the State I.R. Act, then s. 170EB implicitly saves the relevant provisions of the State I.R.
Act from the operation of s. 109 of the Constitution; but that has no bearing on the
validity of the CJ Act provisions.
The second argument relevant to the CJ Act which may be based on s. 170EB is
broader; it is that s. 170EB makes it plain that the relevant provisions of the
Commonwealth Act are not intended to cover the field of statutory regulation of
termination of employment.
It is on this point that, in my opinion, the outcome of the case depends. Although I
proceed on the basis that the Commonwealth Act does not permit the granting of a quia
timet injunction, I accept the submission on behalf of the Council that this gap in the
scheme by no means necessarily indicates that it was not intended to be
comprehensive. The provisions of the Commonwealth Act have every appearance of
being intended to provide a code dealing with dismissal of employees, although by
s. 170EB, they have only what might be described as a conditional operation; they are
available to be used only where there is not another remedy of the kind mentioned in s.
170EB.
But to reject the Council's contention one would, in my view, have to go so far as
to hold that the States may by statute prevent or permit termination of employment and
provide remedies to enforce that, as long as the State provisions do not directly
contradict a provision of the Commonwealth scheme. To take an example relevant to
the present case, if the Attorney-General's argument is accepted, it would seem to me
to follow that a State could add to the grounds on which dismissals may be made or
attacked any additional ground not directly inconsistent with those set out in the
Commonwealth Act. If that is done, then plainly the statute law in the relevant State may
be, in a practical sense, quite different in effect with respect to the subject of dismissal
than it is in States which do not pass such a law.
In my view the trend of the authorities favours the Council's submission: see
A.B.C. v. Industrial Court of S.A. (1977) 138 C.L.R. 399, Metal Trades Industry
Association of Australia v. Amalgamated Metal Workers' and Shipwrights' Union (1983)
152 C.L.R. 632, Dao v. Australian Postal Commission (1987) 162 C.L.R. 317. One can
hardly read s. 170EB as saving not only State provisions which fulfil the description in
that section, but also those which do not fulfil it. Section 109 of the Constitution
operates to invalidate the CJ Act here, insofar as it makes provision, differing from that
in the Commonwealth Act, with respect to dismissal of employees for bringing to the
attention of the appropriate authorities illegal conduct on the part of the employer.
Two other points should be made, for the sake of completeness. One is that it
follows from the decision of the Industrial Relations Court in Liddell v. Lembke N.I.
(Wilcox CJ, Keely and Gray JJ, 15 December, 1994), that the alternative remedy mentioned in s. 170EB may be one under State law; that is necessarily implicit in the
reasons. Secondly, it was decided in the same case that one determines whether the
alternative remedy is available at the time when the Industrial Relations Court "takes the
case into active consideration" - per Wilcox CJ and Keely J at p. 26. It follows that the
circumstance that the relevant provisions of the State I.R. Act were passed after the
corresponding Commonwealth provisions would not falsify the view that the former
provides an "adequate alternative remedy".
Summary
1. The relevant provisions of the Federal award are repugnant to those of the
Commonwealth Industrial Relations Act 1988, and the former may be ignored for
present purposes.
2. However broadly or narrowly the relevant field of operation is defined, there is,
subject to s. 170EB of the Commonwealth Act, no room for operation of a competing
State statutory scheme restricting dismissal of employees.
3. Section 170EB does not directly apply to the relevant provisions of the Criminal
Justice Act, for those provisions do not satisfy the requirements of the Termination of
Employment Convention.
4. Nor does s. 170EB make any such implication, with respect to the preservation
of remedies under State law, as would save the relevant provisions of the Criminal
Justice Act, which are so far as presently relevant invalid.
It follows, in my opinion, that the learned primary judge was right in holding that
he had no jurisdiction to grant an injunction restraining the dismissal of Ms Brooks and
appeal no. 31 of 1994 should be dismissed with costs. There should also be an order discharging the injunction granted by this Court on 28 July 1994. I agree with the orders
proposed with respect to appeal no. 27 of 1994.
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