Gutwein v Tasmanian Industrial Commission
[2021] TASFC 9
•23 June 2021
[2021] TASFC 9
| COURT: | SUPREME COURT OF TASMANIA (FULL COURT) |
| CITATION: | Gutwein v Tasmanian Industrial Commission [2021] TASFC 9 |
| PARTIES: | GUTWEIN, Peter, as Minister administering the State Service Act 2000 |
| v | |
| TASMANIAN INDUSTRIAL COMMISSION | |
| FILE NOS: | FCA 384/2021 |
| JUDGMENT | |
| APPEALED FROM: | Gutwein v Tasmanian Industrial Commission [2021] TASSC 2 |
| DELIVERED ON: | 23 June 2021 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 2 June 2021 |
| JUDGMENT OF: | Blow CJ, Martin and Marshall AJJ |
| CATCHWORDS: |
Industrial Law – Tasmania – Industrial Commission – Jurisdiction and powers – Dispute as to remuneration of former employees – Whether "industrial matter".
Industrial Relations Act 1984 (Tas), s 3(1).
New Town Timber & Hardware Pty Ltd v Gurr (1995) 5 Tas R 71, distinguished.
Burwood Cinema Ltd v Australian Theatrical & Amusement Employees' Association (1925) 35 CLR 528; R v
Portus; ex parte ANZ Banking Group (1972) 129 CLR 353; Slonim v Fellows (1984) 154 CLR 505; Amcor
Limited v Construction Forestry Mining and Energy Union [2005] HCA 10, 222 CLR 241, referred to.
Aust Dig Industrial Law [3380]
Industrial Law – Tasmania – Registered agreements – Agreement increasing remuneration retrospectively for former employees – Validity.
Industrial Relations Act 1984 (Tas), ss 3, 55(1).
New Town Timber & Hardware Pty Ltd v Gurr (1995) 5 Tas R 71, distinguished.
Burwood Cinema Ltd v Australian Theatrical & Amusement Employees' Association (1925) 35 CLR 528; R v
Portus; ex parte ANZ Banking Group (1972) 129 CLR 353; Slonim v Fellows (1984) 154 CLR 505; Amcor
Limited v Construction Forestry Mining and Energy Union [2005] HCA 10, 222 CLR 241, referred to.
Aust Dig Industrial Law [3391]
REPRESENTATION:
Counsel:
Appellant: M E O'Farrell SC and S Kay
Solicitors:
Appellant: Solicitor-General
| Judgment Number: | [2021] TASFC 9 |
| Number of paragraphs: | 73 |
Serial No 9/2021
File No FCA 384/2021
PETER GUTWEIN as Minister administering the State Service Act 2000
v TASMANIAN INDUSTRIAL COMMISSION
| REASONS FOR JUDGMENT | FULL COURT BLOW CJ MARTIN AJ MARSHALL AJ 23 June 2021 |
| Order of the Court: | |
| Appeal dismissed. |
Serial No 9/2021
File No FCA 384/2021
PETER GUTWEIN as Minister administering the State Service Act 2000
v TASMANIAN INDUSTRIAL COMMISSION
| REASONS FOR JUDGMENT | FULL COURT BLOW CJ 23 June 2021 |
1 I agree with the reasons for judgment of Marshall AJ, and with his conclusion that this appeal
should be dismissed.
2 I would like to say a little about the Full Court's decision in New Town Timber & Hardware Pty Ltd v Gurr (1995) 5 Tas R 71, which counsel for the appellant strongly relied on. That case concerned the dismissal of an employee, Mr Gurr. He instituted proceedings in the Tasmanian Industrial Commission some 12 months after his dismissal seeking compensation from his employer. He had been dismissed on the ground of misconduct, and contended that his dismissal had been unfair. At the time of the application to the Commission, his solicitors said that he would submit that reinstatement was not an appropriate remedy. No union or association of employees was involved in the dispute. There was no industrial disharmony, and no risk of industrial disharmony. Then, as now, "industrial matter" was defined in s 3 of the Industrial Relations Act 1984 ("the Act") to mean "any matter pertaining to the relations of employers and employees", and that definition went on to set out a non-exhaustive list of matters that were specifically included in the definition. Each member of the Full Court took the view that Mr Gurr's dispute could not be said to pertain to "the relations of employers and employees": Green CJ at 79; Underwood J (as he then was) at 97; Zeeman J at 111.
3 In their written submissions relating to this appeal, counsel for appellant said, "New Town Timber supports the conclusion that a dispute does not pertain to the relations of employers and employees if the relevant demand is made after the employee in question ceased to be an employee." That contention is plainly wrong. The conclusions expressed by the judges in New Town Timber related to a very specific type of dispute. That case does not stand for the proposition that, subject to statutory exceptions, a dispute about the payment of money to one or more former employees can never pertain to "the relations of employers and employees" for the purposes of the Act's definition of "industrial matter". Nothing in the judgments in New Town Timber supports any such conclusion.
4 Then, as now, that definition specifically included "a matter relating to ... the mode, terms, or conditions of employment". A matter relating to the remuneration of past employees for past work is a matter relating to the terms of employment, and is a matter pertaining to the relations of employers and employees, and thus an "industrial matter" for the purposes of the Act. As Marshall AJ has pointed out, the inadequate remuneration of a class of workers in the past has the capacity to affect future wages claims for similar employees in the future.
5 Counsel for the appellant argued that express references to a "former employee" in the Act, particularly in the definition of "industrial matter", indicated that former employees did not constitute employees for the purposes of that definition. That contention is also plainly wrong. Some specific provisions[1] were included in the definition of "industrial matter" in order to overcome the decision in New Town Timber. Those specific provisions included references to former employees. It certainly does not follow that parts of the original definition referring to "the relations of employers and employees"
2 No 9/2021
[1] Subparagraphs (a)(ii)-(iv) of the definition of "industrial matter", inserted by the Industrial Relations Amendment Act 1997, s 5(1)(e).
and "the mode, terms and conditions of employment" should be construed as not applying to former
employees or to employment that has ceased.6 There is one further aspect of this case that calls for comment. At the hearing of the appeal I asked counsel for the appellant whether the former employees to which the appeal related had been paid the money that was in dispute. The Court was informed that all but one of them had been re-employed and paid, but that no payment had been made to the individual who had not been re-employed. The fact that no payment was made to that person after a judge of this Court had given judgment against the Minister indicates a lamentable disregard for the rule of law, or perhaps an unfortunate ignorance concerning the rule of law, at some level.
3 No 9/2021
File No FCA 384/2021
PETER GUTWEIN as Minister administering the State Service Act 2000
v TASMANIAN INDUSTRIAL COMMISSION
| REASONS FOR JUDGMENT | FULL COURT MARTIN AJ 23 June 2021 |
7 I agree that the appeal should be dismissed for the reasons given by the Chief Justice and
Marshall AJ.
4 No 9/2021
File No FCA 384/2021
PETER GUTWEIN as Minister administering the State Service Act 2000
v TASMANIAN INDUSTRIAL COMMISSION
| REASONS FOR JUDGMENT | FULL COURT MARSHALL AJ 23 June 2021 |
8 On 19 August 2019, the Tasmanian Industrial Commission ("the Commission") approved an agreement under s 55 of the Industrial Relations Act 1984 ("the Act"), entitled AWU Public Sector Union Wages Agreement 2018 ("the Agreement"). Under cl 13 of the Agreement the parties bound were the appellant and The Australian Workers' Union, Tasmania Branch ("the Union"). The application of the Agreement under cl 4 was said to be "in respect of employees covered by the AWU (Tasmanian State Sector) Award". There is no evidence before the Court as to the complete extent of that coverage. A decision delivered on 19 August 2019 by President Barclay setting out reasons for his approval of the Agreement does not shed any light on that question. However, in November 2019, a dispute arose between the State and the Union as to whether the retroactive wage increases provided for in the Agreement applied to employees who were no longer in the employ of the State as at 18 August 2019. During the course of the dispute in November 2019, an organiser employed by the Union wrote to a representative of the appellant referring to members of the Union employed by the Department of Primary Industries, Parks, Water and Environment ("DPIPWE") between 1 July 2018 and 30 June 2019.
9 The Union sought "back pay" for members who were employed in DPIPWE between 1 July 2018 and 30 June 2019. That was because cl 6 of the Agreement provided that it applies with effect from 1 July 2018 and would remain in force until 30 June 2019. It was entirely retrospective in nature. It provided for wage increases from 1 December 2018. It is not uncommon for industrial instruments to have a degree of retrospectivity, in many cases dating back to the day of the original demand that led to the dispute and its settlement by award or agreement, being either a paper dispute or a dispute involving industrial action.
10 At [4] of his decision, President Barclay said of the Agreement:
"It is the product of protracted negotiations involving, in some instances, industrial disputation. The Agreement is brought for approval effective from 1 July 2018 until 30 June 2019. The Agreement also provides for back pay from 1 December 2018."
11 Earlier at [3], the President said:
"The Agreement is notable in that it relates to a period entirely in the past. Ordinarily I would take some persuading to approve an agreement which is essentially of no operative affect for the future. However the Agreement has had a difficult birth."
12 The President did not explain what "difficult birth" entailed. However it is reasonable to infer that the Union, on behalf of its members employed by DPIPWE was not content with the level of wages which was accorded to those employees in the period 1 December 2018 to 30 June 2019. I refer to those dates because cl 7 of the Agreement made the salary increases provided for in the Agreement operative from the first full pay period commencing on or after 1 December 2018.
13 The appellant paid the backdated salary increase to employees covered by the Agreement who were employed by him as at 19 August 2019, but refused to pay back pay to those persons who were employed by DPIPWE and were members of the Union between 1 December 2018 and 14 June 2019 (as to the relevant date, see [11] and [12] below), but who ceased to be employed by DPIPWE by
5 No 9/2021
19 August 2019. The matter is further complicated by the fact, as the Court was told by the Solicitor- General for the appellant at the hearing of this appeal, that all such persons have now been paid their back pay under the Agreement, save for one person. The rationale for that appears to be that all those employees except one are now back working for DPIPWE. In effect, that means that this litigation now concerns the sole question, in practical terms, as to whether one person who was employed at a time the Agreement applied is to be deprived of the benefit of the Agreement because that person was not employed by the appellant when the Agreement was approved.
14 Dissatisfied with the refusal of the State to pay any of the affected workers who were no longer in the employ of DPIPWE on 19 August 2019, the Union notified the Commission of a dispute under s 29 of the Act. In the dispute notification form, the employer was described as DPIPWE. In the section entitled "Statement in Support of Application", the following is said to raise the dispute:
"The matter pertains to the non-payment of back pay of Salaries to employees covered by the AWU Public Sector Union Wages Agreement 2018. [It then referred to emails exchanged between the State and the Union setting out their positions on the matter.] In summary the AWU believes that employees employed between 1st July 2018 and 30th June 2019 should be afforded the rates of salaries as set out in the [Agreement] including those employees who were employed partially or some periods of the period the Agreement had effect and was in force."
15 In an email on 5 December 2019 to the parties to the dispute, the President's associate said:
He notes that the issue in dispute is a legal question as follows:
Are employees who were employed, but who are no longer employed, entitled to the
benefit of an industrial instrument which came into force after the date the employees
ceased to be employed, but which industrial agreement retrospectively covers the
period during which they were employed."The President has allocated this matter to himself. employees, the dates they were employed, and the classifications in which they were employed he would have a sufficient factual matrix to determine the matter on the papers with the assistance of written submissions."
A timetable was then set for the filing and serving of written submissions.
16 On 9 December 2019, a representative of the appellant wrote to the President saying that the appellant suggested that the question for determination should be posed as:
Are those persons who were employed by the State up to the 18th of August 2019 but not thereafter, entitled to the benefits conferred by the [Agreement] ...".
The Agreement had been lodged on 12 August 2018 by the parties to it, including the appellant. A hearing occurred on 14 August 2018 and the decision approving and giving effect to the Agreement was made on 19 August 2018 by the President.
17 On 12 December 2019, the President advised the parties that the revised question for him to
determine was:
"Are more persons who were employed by the State up to the 18th August 2019 but not
thereafter, entitled to the benefits conferred by [the Agreement] ...?"
18 The submissions supplied to the President by the Union referred to employees employed in the Parks and Wildlife Service (of DPIPWE) as "fixed term" employees pursuant to s 37(3)(b) of the State Service Act 2000. The submissions named seven employees who were employed from 11 October 2018 to 31 May 2019, four others employed from 12 October 2018 to 31 May 2019, one employed from 11 October 2018 to 14 June 2019, and one person originally employed as at 2019 as a summer ranger
6 No 9/2021
but then engaged from some unstated time in 2019 until 31 May 2019 as a firefighter. Thirteen employees in total were affected by the dispute between the parties. From the judgment of the primary judge at [2], it appears that the 13 employees were all firefighters employed by the State in the Parks and Wildlife Section of DPIPWE on fixed term contracts and had "been employed to fight the bushfires which affected the State in that period". On the appeal, we were not informed about the identity of the sole remaining firefighter who has not been paid back pay under the Agreement, because of the appellant's interpretation of it, notwithstanding that 12 others who are back in the service of the State, but were not so employed as at 18 August 2019, have now been remunerated in accordance with the Agreement.
19 On 5 May 2020, President Barclay issued a decision in which he referred to "13 former employees of the Parks and Wildlife Service" who were employed "either on a permanent basis, or pursuant to a fixed term instrument". He observed that most of the affected employees finished their employment with the State on 31 May 2019, with the latest finishing date being 14 June 2019.
20 At [7], the President said:
"The effected [sic] employees sought payment of a sum of money to reflect the fact that the Agreement provided for a pay rise during the period they were working. The Respondent refused to pay the effected [sic] employees on the basis that they were not employees at the time the Agreement was approved and therefore the wages increase did not apply to them."
21 At [11], the President said:
"It is notable that the Agreement at the date of signing and approval related to a period entirely in the past. The Agreement only provided for pay increases together with a sign on bonus. It was a product of protracted negotiations and in some instances industrial disputation. It is clear from the terms of the Agreement that it was intended to have retrospective effect."
22 The President ruled that the Agreement "is of retrospective effect" and that "[t]here is nothing in the Agreement which requires a person who is covered by the Agreement to be an employee at the time it came into effect." The President determined that the affected employees were covered by the Agreement and entitled to the benefit of it. He answered the question before him in the affirmative.
23 In deciding the question the way he did, the President was dealing with an "industrial matter" as defined in s 3(b) of the Act, that is, whether a registered agreement had been breached.
24 The appellant was dissatisfied with the adjudication of the President and commenced a proceeding in this Court seeking relief in the nature of certiorari quashing the decision made by the President on 5 May 2020, alleging that the President should have interpreted the Agreement as applying only to persons who remained in his employ at the time of the approval of the Agreement.
25 The primary judge rejected that application. He was satisfied that the President had not fallen into jurisdictional error and that the Agreement applied to persons who were employed at the time the wage increases specified in the Agreement took effect.
26 The appellant has appealed from the judgment of the primary judge. He presses for an interpretation of the Agreement which confines its operation to workers who were his employees at the time of its approval.
27 In Amcor Limited v Construction Forestry Mining and Energy Union [2005] HCA 10, 222 CLR 241, the High Court discussed the principles to apply to the interpretation of industrial agreements. At [13] Gleeson CJ and McHugh J, in interpreting a certified agreement under federal legislation had regard to "... the industrial purpose of the agreement, and the commercial and legislative context in which it
7 No 9/2021
applies ...". At [65], Kirby J had regard to the "industrial setting" to the making of the Agreement. At
[66] his Honour said:"No longer do courts (or industrial tribunals) seek to give meaning to contested language considered in isolation from the context in which the words are used and the purpose for which the words were apparently chosen. Nowadays, the same insistence on context, as well as text, permeates the approach to interpretation that is taken to legally binding agreements. Indeed, before this approach became normal in the courts, in the interpretation of contested instruments it was often the approach adopted for the construction of industrial texts. This was in keeping with an inclination of such tribunals towards practical, as distinct from purely verbal, constructions in that area of the law's operation." [Footnotes omitted.]
28 At [96], Kirby J said:
"The nature of the document, [the certified agreement] the manner of its expression, the context in which it operated and the industrial purpose it served combine to suggest that the construction to be given to cl 55.1.1 should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement. Approaching the interpretation of the clause in that way accords with the proper way, adopted by this Court, of interpreting industrial instruments and especially certified agreements. I agree with the following passage in the reasons of Madgwick J in Kucks v CSR Ltd (1996) 62 IR 182 at 184, where his Honour observed:
'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'." [Footnotes omitted.]
29 In making the Agreement the parties acknowledged that the wage rates that applied to affected employees were inadequate in the periods in respect of which back pay was to be afforded. Why else would they want to alter them? There is no logical industrial relations reason why back pay as agreed between the parties should not be given to those who were employed at the relevant time, but were no longer employed at the time of the approval of the agreement, but paid to those who were employed at the relevant time and remained employed after the approval of the Agreement in the service of the appellant.
30 To construe "employees" in cl 4 of the Agreement, referring to those employed as at 19 August 2018 is to turn a blind eye to the "industrial purpose" of the Agreement. That industrial purpose was to supplement the wages of workers who were engaged in certain work at a certain time. That was the "industrial setting". To construe the word "employees" literally to mean only "employees" as at 19 August 2019 would be productive of unfairness. The people deprived of the increase in salary on the appellant's construction are no less deserving of the increase than continuing employees or employees subsequently re-engaged. So much would not be a "sensible industrial outcome", but a "narrow and pedantic" approach designed to frustrate the intention of the Agreement to provide back pay to people in respect of work performed at a period of time in the past. Construing the Agreement as applicable to all employees engaged in the employment of the appellant in the Parks and Wildlife section of DPIPWE between 1 December 2018 and 30 June 2019 would give effect to the "evident purpose" of the Agreement and "avoid injustice" in the words of Madgwick J as approved by Kirby J and also Callinan J at [146] in Amcor (above).
8 No 9/2021
31 Callinan J in Amcor at [146] 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."
At [147] Callinan J said:
"It is important to keep in mind therefore the desirability of a construction, if it is
reasonably available, that will operate fairly towards both parties."
32 Those with any experience in the practical operation of industrial relations in Australia will know that it is not uncommon for industrial instruments to have retrospective effect. Section 56(6)(b) of the Act, which is set out below, recognises that possibility. When such instruments have retrospective effect, no distinction is made as to whether a person entitled to the benefit of the retrospectivity remains in the service of the same employer at the time the industrial instrument is made. The industrial instrument reaches backwards in time and alters entitlements of those employed at the relevant time. Any other interpretation would be productive of unfairness and may result in industrial disputation between the relevant union/s and the employer concerned.
33 I reject the interpretation of the Agreement contended for by the appellant that it only applies to persons employed as at the time of the approval of the Agreement and not the 13 firefighters whose employment terms concluded before that date.
34 I now turn to other matters raised by the appeal.
35 Essentially the issue which remains for determination is whether the Agreement entered into by the appellant, in his capacity as Minister administering the State Service Act 2000, and the Union, was within the jurisdiction of the President of the Commission to approve, insofar as it concerned employees whose employment had concluded before its approval.
36 As has been discussed above, the Agreement was approved in a decision made on 19 August 2019. It provided for a retroactive wage increase for 13 firefighters who were engaged on fixed term contracts during a particularly difficult fire season. The Agreement was approved with an operative date of 1 July 2018 and with an expiry date of 30 June 2019. It provided for back pay from 1 December 2018.
37 The Agreement was approved under s 55(4)(a) of the Act. Section 55(1) of the Act provides:
"(1) An employee organization may enter into an industrial agreement with an employer organization or any employer or group of employers with respect to an industrial matter."
Section 55(6) of the Act provides:
"(6) An industrial agreement has effect from –
(a) the date it is approved by the Commission; or (b) such other date agreed by the parties to the agreement and approved by the Commission."
It is clear from s 55(6)(b) of the Act that an agreement is capable of having an operative date prior to the date of its approval, provided that under s 55(1) it is with respect to an industrial matter.
38 Under s 3 of the Act, "industrial dispute" is defined to mean:
"industrial dispute means a dispute in relation to an industrial matter –
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(a) that has arisen; or
(b) that is likely to arise or is threatened or impending."
"Industrial matter" is defined to mean:
"industrial matter means any matter pertaining to the relations of employers and
employees and, without limiting the generality of the foregoing, includes –
(a) a matter relating to –
(i) the mode, terms and conditions of employment; or (ii) the termination of employment of an employee or former employee; or (iii)
the reinstatement or re-employment of an employee or a former employee who has been unfairly dismissed; or
(iv)
the payment of compensation to an employee or a former employee if the Commission determines that reinstatement or re-employment is impracticable; or
(v)
severance pay for an employee or a former employee whose employment is to be, or has been, terminated as a result of redundancy; or
(vi)
a dispute under the Long Service Leave Act 1976 or the Long Service Leave (State Employees) Act 1994 relating to an entitlement to long service leave, or payment instead of any such leave, or the rate of ordinary pay at which any such leave or payment is to be paid in respect of an employee or former employee; or
(b) a breach of an award or a registered agreement – but does not include a matter relating to –
(c) the opening or closing hours of an employer's business premises; (d) ...
(e)
compensation payable to employees in respect of injuries or diseases suffered in the course of their employment;
(ea) ...
(f) the preferential employment or non-employment of a particular person or class of persons who are or are not members of an organization; (g) a bonus payment made at the discretion of an employer; (h) the insurance of employees; or (i) appointments, or promotions, other than in respect of the qualifications required for advancement."
39 Paragraphs (ii), (iii), (iv), (v) and (vi) of the definition of "industrial matter" show that it is not fatal to the characterisation of a matter as "industrial" if the matter concerns a former employee such as one seeking a remedy in respect of the termination of employment or severance pay post-employment, or appropriate long service leave payments post-employment. The critical connection is that the post- employment issue be inextricably linked to the employment of a person.
40 A dispute about the non-payment of wages under the Agreement arose in December 2019 but that has no bearing on whether the Agreement was about an industrial matter when made by the
Commission. Also under s 3, "organization" is defined to mean "… an organization registered under
Part V". "Employee organization" means "an organization of employees". "To be party to an industrial agreement under s 55 of the Act, The Australian Workers' Union, Tasmania Branch, must be registered as an association of employees under the Act." The Australian Workers' Union Tasmania Branch, is a branch of The Australian Workers' Union, which is registered under the Fair Work (Registered Organizations) Act 2009 (Cth). The Tasmanian branch of The Australian Workers' Union has no separate legal existence apart from the federally registered organisation: see Moore v Doyle (1968)
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15 FLR 59; Williams v Hursey (1959) 103 CLR 30 at 53 to 55 and Royal Australian Nursing Federation Tasmanian Branch v Fawdry, 8 October 1986, unreported per Evatt, Northrop and Gray JJ. However the branch has standing for the purposes of the Act to raise an industrial dispute about an industrial matter and seek the registration of an industrial agreement to which it is a party. Specifically in s 65(1)(c), an organisation is permitted to "appear in proceedings before the Commission with respect to an industrial matter affecting members of the organization". In that regard the position of an organisation under the Act is akin to that of a federally registered organisation under federal industrial legislation.
41 Under s 29 of the Act, an organisation (such as the Union), among others, is entitled to apply to the President of the Commission for a hearing in respect of an industrial dispute. A dispute about the failure to pay wages in respect of an industrial agreement is an industrial matter under par (b) of the definition of that term.
42 A dispute about wage levels is a dispute relating to the terms and conditions of employment. However the appellant submits that an adjustment to the wages of persons no longer employed cannot be an industrial matter because it concerns the relationship of ex-employers and ex-employees. Such an approach to the meaning of an industrial matter is unduly narrow and fails to take into account the significance of an organisation of employees raising a dispute about the wage levels that should have applied at a particular period of time to certain of its members in the interests of those members and the entire class of persons whom the Union represents as persons eligible to join it. It fails to recognise the role of the union as a party principal in industrial relations regarding industrial disputes. It also fails to take into account that the definition of "industrial matter" comprehends disputes concerning the entitlements of former employees in respect of matters relevant to their employment, including severance and long service leave entitlements and remedies against unfair dismissal.
43 As Isaacs J said in Burwood Cinema Ltd v Australian Theatrical & Amusement Employees' Association (1925) 35 CLR 528 at 538:
"The term 'industrial disputes' cannot by any possibility be limited to disputes between persons standing in the actual present contractual relation of employer and employee. Such a limited construction would in effect exclude demarcation disputes, which are substantially between different classes of employees, and would exclude all disputes by organizations, which ex natura rerum can never be employees."
In that passage and later in his reasons, Isaacs J emphasised the position of registered organisations being parties principal in industrial disputes on behalf of those who were members, as well as those eligible to join them.
Isaacs J at 534 continued:
"The construction contended for as adverse to the jurisdiction, [that there was no jurisdiction in the ... Court because the Union had no members at the relevant workplace] is therefore impossible, inconsistent and, as applied to the well-known subject of 'industrial disputes,' absurd."
His Honour went on to say that an industrial dispute could arise about the "relative rights and duties between persons who did not at the time of the dispute stand in contractual relation to each other."
44 Powers J at 542 referred to the fact that the relevant union was engaged in a dispute on behalf of all its members and not just persons employed by the relevant employers. His Honour referred to a judgment of Higgins J in Australian Workers' Union v Pastoralists' Federal Council (1917) 23 CLR 22, holding that there is nothing in the Constitution or in the [Federal] Act forbidding the finding of a dispute between a union and employers even if no members of the union are actually in the employment of the respondents. That has been the unchallenged position in industrial law in Australia since that time. It recognises the role of unions, if registered in industrial systems, of generating disputes on behalf
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of classes of employees eligible to join them in the interests of their memberships as a whole from time
to time.
As Starke J said at 551:
"An organization registered under the Arbitration Act is not a mere agent of its members: it stands in their place, and acts on their account and is a representative of the class associated together in the organization. It is, as my brother Higgins said, 'a party principal,' and 'not a mere agent or figurehead'."
45 The special role of registered organisations or associations in generating disputes on behalf of those eligible to be its members was recognised by the High Court in Slonim v Fellows (1984) 154 CLR 505. That case involved an industrial dispute between a registered association under then Victorian legislation and an employer concerning the fairness of a dismissal of an employee. The court overruled a decision of the Full Court of the Supreme Court of Victoria in R v Marshall; ex parte Plumrose [1983] 1 VR 469, which held that a dispute about the fairness of the dismissal of a former employee was not a dispute about an industrial matter, because it involved an ex-employer and an ex-employee.
46 In R v Portus; ex parte ANZ Banking Group (1972) 129 CLR 353, the High Court held that a dispute between a union and an employee about the employer's failure to accede to a demand that the employer deduct union contributions from the wages of its employees was held not to relate to an industrial matter because it did not relate to the employer-employee relationship. It was considered to be a demand for a service to be performed by an employer; see Stephen J at 372.
47 Earlier at 371, Stephen J said:
"Not every demand for reward for work performed will render the subject matter of the demand an industrial matter. The matter demanded must always pertain to the employer-employee relationship so that the subject matter of demands by either party which are, for example, of a political or social or managerial nature will not be industrial matters. The necessary quality of a subject matter demanded which is concerned with reward for work performed is, I think, that it be, of itself, inherently associated with the relationship of employer and employee and not with some other type of relationship. Reward by way of remuneration of course conforms most clearly to such a test; the payment of wages or salary is inherent in the relevant relationship. Likewise demands for, for instance, paid annual holidays or retirement benefits (disregarding, for present purposes, any consequences arising from the fact that awards are necessarily of limited duration) would, I think, satisfy this requirement; even if the relationship existing between parties to a demand of this character was unknown it would, nevertheless, from its very nature, be seen to be associated with some employer- employee relationship."
Similar considerations applied in Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40, 221 CLR 309, where the claim was one for non-unionists to pay a bargaining fee to a union. In this case the dispute arose out of the relationship between the firefighters and the State in relation to the wages that were appropriate for them to be paid in respect of that relationship, being a dispute agitated on their behalf by their union. As Gibbs CJ said in Slonim v Fellows (above) at 511:
In the present case the applicant was no longer an employee because her employment had been terminated. The dispute was however between an association of employees and an employer, and for the reasons I have given I consider that it directly arose out of the relationship which had existed between a member of the association as an employee and the employer as an employer."
| 48 | Wilson J, at 515-516, with whom Mason and Deane JJ agreed, referred to the then recent judgment of the High Court in Re Coldham; ex parte The Australian Social Welfare Union (1983) 153 CLR 297 which referred to the words "industrial dispute" as not being technical words, but ones to be |
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given their popular meaning, and includes disputes between employees and employers about the terms
and conditions of work. Wilson J noted at 516:
"A dispute does not have to involve an employee or employers. It may arise between
an employer and an association of employees."
So much is the case here.
49 The evidence before the primary judge was that the Agreement between the appellant and the Union was preceded by "protracted negotiations" which included "industrial disputation". The Agreement was in settlement of the dispute between the appellant representing the State, and the Union representing its members, and those eligible to be members. It was about the terms and conditions of employment of employees with respect to work that had been performed by them and the appropriate remuneration for that work.
50 The primary judge was correct to view the question as to the entitlement of the firefighters to back pay as a matter pertaining to the relation of employers and employees, and had the requisite industrial character because it was inextricably bound up with the appropriate wages to be accorded to persons performing work of the type performed by those who were subject to the Agreement.
51 It is fanciful to submit that the Union had no interest and its current members had no interest in raising a dispute about the adequacy of the wages initially paid to the affected Parks and Wildlife firefighters. As Brett J (the primary judge) said at [28]:
" ... it is clear that the payment of entitlements to these workers is not only of interest to them, but is also clearly a matter of current interest to the employees of the applicant as a collective, represented by the Union. This is confirmed by the President's findings concerning the protracted and conflictual negotiations which led to the agreement. It is also confirmed by the fact that the dispute arose between the Union and the State, and the application for a hearing under s 29(1) was made by the Union. Put simply, the current employees, represented by the Union, can reasonably be seen to have a legitimate interest in the matters dealt with by the agreement, including benefits payable to former employees for work done in the past, and in ensuring that their employer complies with such an agreement. ...".
52 Put even more simply, the raising of a dispute about the inadequacy of wages paid to fixed term firefighters by the Union was on behalf, not only of them, but also of persons in that occupation who are currently members or eligible for membership of the union. A union is recognised, at least since Burwood Cinema, as a party principal in industrial disputes. It had an interest in correcting what it considered to be a bad precedent whereby the fixed term firefighters had been inadequately remunerated. That precedent had the capacity to affect future wages claims for that class of employees. It was the Union that sought to correct what it saw as a problem by raising a dispute in the interests of not only the affected employees, but those likely to be so engaged on short-term fixed employment contracts in the future. The raising of that dispute led to the making of the Agreement which was consented to by the appellant and then approved by the Commission.
53 It is not in doubt that an industrial dispute requires a necessary industrial flavour and must be about an industrial matter. It does not include a request by a union for non-unionists to pay a bargaining fee to a union (as in Electrolux (above)), or a request that an employer deduct union dues and pay them to a union from the wages of employees who are union members (as in R v Portus (above)). See also Alcan Australia; ex parte Federation of Industrial, Manufacturing and Engineering Employees (1984) 181 CLR 96. But an industrial dispute does include a dispute between two organisations regarding demarcation, a dispute about termination of an employee, a dispute about severance pay after a redundancy, and a dispute about long service leave payments after termination. There is no reason why it cannot include a dispute raised by a union as to the inadequacy of payments made to workers eligible to be its members during the currency of that employment after the employment has ended. The
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adjustment of the rates paid to reflect more appropriate rates is not only in the interests of the affected firefighters, but in the industrial interests of those currently engaged in that occupation in the service of the appellant in respect of the industrial fairness of their remuneration now and into the future, and in the interests of the organisation to which they belong which makes claims in their interest and on their behalf.
54 The primary judge was correct to reject the appellant's argument that an agreement under s 55 of the Act could not apply to a past period. Section 55 (6) (b) of the Act shows that it can. There is nothing in the Act that prevents it from so applying. Indeed the settlement of a dispute about the termination of an employee may result in payment in the nature of reimbursement for lost wages which necessarily relates to a past period. The same would apply to the adequacy of a severance payment on redundancy.
55 Counsel for the appellant relied on the judgment of McHugh J in Electrolux at [60] where his Honour said that the court had not followed earlier cases where an industrial dispute was said to arise whenever employers refuse demands by unions which employers can carry out. That is not a reason to consider a claim for back pay as not being about an industrial matter. There are many benefits that an employer can provide at the request of a union to workers. These include better wages and conditions, and other matters pertaining to the working relationship between an employer and an employee. In his judgment at [60], McHugh J was doing no more than rejecting a submission that what was within the power of an employer to grant could necessarily be an industrial matter. Clearly the request that an employer require non-unionist employees to pay a bargaining fee to unions was not an industrial matter, although it was in the power of an employer to insist on making it a condition of the employment of non-unionists.
56 Nothing in any of the judgments in Electrolux gainsays the proposition traced back to Burwood Cinema that a registered organisation, as party principal to an agreement, can raise matters going directly to the terms and conditions of employment of persons eligible to be members, including the adequacy of wages paid to such persons in respect of work performed by them for an employer.
57 As discussed earlier in these reasons, the Commission is specifically authorised by s 55(6)(b) of the Act to make retroactive or retrospective agreements, and the list of specified industrial matters in the definition of that term in s 3 concerns disputes about issues arising after the termination of the employment of employees. Frequently, in practice, industrial awards and agreements have applied retrospectively to wage increases in some cases going back to the date of the original demand, sometimes known as the datum point. It is hardly a novel proposition in industrial relations. Often back pay is paid to those who have subsequently left the service of the employer. To consider such matters to be beyond the reach of industrial tribunals is an unwarranted retrograde step in industrial law, and plainly wrong. It is a conclusion that could only be supported by clear wording in the legislation.
58 For the foregoing reasons I consider that the primary judge was correct in rejecting the submission of the appellant that the agreement did not relate to an industrial matter, and also in rejecting the submission that the agreement could not have retroactive effect.
59 Before leaving the topic, I wish to say something about the appellant's reliance on New Town Timber and Hardware v Gurr (1995) 5 Tas R 71. In New Town Timber the Full Court held that the Commission did not have jurisdiction to make an award of compensation to a dismissed employee who did not seek reinstatement. That outcome was dictated by the provisions of the Act, as it then stood. Green CJ at 137 observed that, unlike in Slonim v Fellows (and I interpolate here), the dispute was not one between an organisation or association of employees and an employer. The application before the Commission was one for the settlement of a dispute between a dismissed employee and his employer. Under the Act, as it now stands, and par (a)(ii), (iii) and (iv) of the definition of "industrial matter", that dispute would beyond doubt be one as to an industrial matter.
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60 Underwood J (as he then was) formed the view that there was an industrial dispute about an industrial matter, but that the Act, combined with the way the matter had been dealt with by the Commission, meant that the remedy of reimbursement for lost wages or otherwise known as compensation was not available. Compare and contrast par(a)(iv) of the definition of "industrial matter" in the current Act.
61 The reasoning of Zeeman J was influenced by the approach to industrial matters rejected by the High Court in Slonim v Fellows in specifically overruling R v Marshall; ex parte Plumrose (above) that a dispute about the fairness of a termination is not about an industrial matter because it concerns an ex- employer and ex-employee. Since Slonim v Fellows disputes about the fairness of dismissals are disputes beyond doubt, about industrial matters.
62 The reliance by the appellant on R v Staples; ex parte Australian Telecommunications Commission (1980) 143 CLR 614, quoted by Zeeman J in Newtown Timbers (above) is of no assistance in the current matter as the federal Industrial Relations Commission in that case was confined to dealing with disputes raised before it by an organisation of employees, and not by a single employee on his or her own behalf: (see 625-627).
63 Counsel for the appellant contends that the current employees employed in the positions occupied by the employees the subject of the Agreement, have no interest in former employees receiving back pay. He submits there is no evidence for that concern. It is not a matter of evidence but a matter of common sense. Current employees and their union had a real interest in correcting what was potentially a bad precedent constituted by inadequate payments made in the past to persons performing work which the current employees now perform.
64 Counsel also referred to the provisions of the Act which deal specifically with retrospectivity to support a submission that retrospectivity was otherwise not permitted. That submission overlooks the fact that any payment of lost remuneration arising from an unlawful termination of employment will necessarily involve retrospectivity, as will severance pay after the termination of employment. It also denies the custom and practice in the history of industrial relations in Australia that the operative date of a wage increase or other work benefits can be before the time of the making of the award or agreement. The submission of counsel in this regard is equivalent to saying that, because the definition of "industrial matters" in the Act excludes some matters such as preference clauses, all other non- excluded matters are industrial matters.
65 Since the hearing and determination of the application before the primary judge, all affected firefighters, apart from one, were paid by the appellant their entitlements under the Agreement. Putting aside the single employee still affected, this raises the issue as to whether the appeal is moot and whether the appellant is, in effect, seeking an advisory opinion from the Full Court. There is no longer any active remaining controversy between the appellant on the one hand and the Commission and the Union on the other hand, apart from the interests of one single person who has not re-joined DPIPWE.
66 As a Full Court of the Federal Court said recently in Minister for Immigration v CPJ16 [2020] FCAFC 87, an appellate court retains a discretion to hear an appeal where the subject matter of the appeal has been rendered moot by a change in circumstances.
67 Matters which may be taken into account in determining whether to nonetheless hear an appeal
are:
whether the issues on appeal have ramifications beyond the facts of the case in question, and
whether it is in the public interest that it be resolved; whether the decision below adversely affects the reputation of a party; whether a finding of bad faith has been made; 15 No 9/2021
whether there is a doubt over the correctness of the decision under appeal; the amount of judicial resources required to hear the appeal. See CPJ16 at [19], citing Bonan v Hadgkiss [2007] FCAFC 113, 160 FCR 29 [10].
68 In People with Disability Australia v Minister for Disability Services [2011] NSWCA 253, the New South Wales Court of Appeal noted that the court does not have jurisdiction to give an advisory opinion, but that there was a discretion available to continue to hear it because there was another case on foot, the outcome of which could be affected by a decision on the matter before the Court of Appeal.
69 The instant appeal potentially has ramifications beyond the facts of this case, but that will be the case in any litigation involving the public interest. It will be decided on its own unique facts however and the fact that one party doubts its correctness cannot be a determining factor in the exercise of the discretion to hear the appeal.
70 Whether an industrial dispute existed about an industrial matter leading to the valid making of an industrial agreement will depend on the facts and circumstances of each case. The mere fact that the outcome of the agreement resulted in wage increase or benefits to people no longer in employment cannot be the test, otherwise payments made to unfairly dismissed employees or severance payments after termination would be unlawful, when the definition of "industrial matter" in the Act demonstrates otherwise.
71 In circumstances where the appellant agreed to the back pay for firefighters, went to the Commission to have that Agreement approved and later paid all but one of the firefighters their entitlement under the Agreement, it is difficult to see the utility in permitting the appellant to challenge the judgment of the primary judge, especially in circumstances where there is no contradictor on appeal
and his Honour’s judgment is free from doubt.
72 As Campbell JA said in Jardin and Jardim Investments Pty Ltd v Metcash Ltd and Metcash Trading Ltd [2011] NSWCA 409, 285 ALR 677, at [35]:
"It could only be in rare circumstances, if ever, that a court was justified in reaching a decision on legal question that had no practical consequences for either of the parties."
Nothing in the decisions of Young JA or Meagher JA in Jardin contradicted the views expressed above by Campbell JA in the New South Wales Court of Appeal.
73 In any event, this is a matter that turns on its own facts and could not in any event establish a precedent for the proposition that an ex-employer cannot be ordered to give a benefit to an ex-employee under industrial law, or be the subject of an agreement providing such a benefit. That fallacy was expressly rejected as long ago as 1984 in the High Court in Slonim v Fellows as discussed above. The Court also has not had the benefit of a contradictor on the appeal. However, given that the appellant has been heard on the substantive matter, and that one firefighter remains unpaid his or her entitlement under the Agreement. I would reluctantly exercise the discretion of the Court to hear the appeal. However the appeal is devoid of merit. The President was entitled to resolve the dispute raised under s 29 of the Act and was correct in his decision that the answer to the question which fell for him to decide was in the affirmative. I would dismiss the appeal.
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