Inspector Wade Connolly v AC and MS Services Pty Ltd
[2007] FMCA 139
•22 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| INSPECTOR WADE CONOLLY v AC & MS SERVICES | [2007] FMCA 139 |
| INDUSTRIAL LAW – Employee collective agreements − where respondent company purported to make a collective agreement under s.327 with staff who were not to be subject to its terms − where the respondent then lodged the agreement with the Office of the Employment Advocate − where respondent later varied the agreement − where the applicant submitted the respondent be subject to pecuniary penalties for breaching the operational requirements of the Act when lodging the purported agreement − whether an invalid agreement can achieve legal recognition and enforceability as a result of being lodged and approved − whether the elements of s.327 constitute jurisdictional facts − whether the absence of a jurisdictional fact means there is no breach of the provisions of the Act − whether an invalid agreement qualifies as a ‘proposed workplace agreement’ and is therefore defined as an ‘agreement’ notwithstanding the non-existence of a jurisdictional fact − where the ability of an inspector to commence proceedings for a civil penalty under the Regulations was not contained in the Regulations at the time the alleged breach was committed − whether the Regulations later included can apply retrospectively to allow an application or to impose a civil penalty. |
| Workplace Relations Act 1996, ss.324, 326-329, 333, 337, 340, 341, 347, 351, 418 Workplace Relations Regulations 2005, reg. 8.13(1)(b) |
| R v Blakeley; Ex parte Assn of Architects (1950) 82 CLR 54 Explanatory Memorandum, Workplace Relations Amendment (Work Choices) Bill 2005 Aronson M, Dyer B and Groves M(2004) Judicial Review of Administrative Actions (3rd Edition) (Lawbook Co: Sydney) |
| Applicant: | INSPECTOR WADE CONOLLY (WORKPLACE SERVICES) |
| Respondent: | AC & MS SERVICES PTY LTD |
| File Number: | ADG266 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 29 January 2007 |
| Date of Last Submission: | 29 January 2007 |
| Delivered at: | Adelaide |
| Delivered on: | 22 February 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Snaden |
| Solicitors for the Applicant: | Clayton Utz |
| Counsel for the Respondent: | Mr R Manuel |
| Solicitors for the Respondent: | EMA Legal |
ORDERS
Application dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG266 of 2006
| INSPECTOR WADE CONOLLY (WORKPLACE SERVICES) |
Applicant
And
| AC & MS SERVICES PTY LTD |
Respondent
REASONS FOR JUDGMENT
(As Corrected)
These proceedings are brought under the Workplace Relations Act 1996 (the “Act”) seeking civil penalties for alleged breaches relating to what is known as an ‘employee collective agreement’ under the Act. The circumstances in which the alleged breaches occurred have been reduced to a set of agreed facts which are reproduced hereunder:
“1.At all material times, the Applicant was a Workplace Inspector within the meaning of the Workplace Relations Act 1996 (“the Act”) and was capable of prosecuting this application.
2.At all material times, the Respondent was a company incorporated in the State of South Australia.
3.At all material times, the Respondent was engaged in the business of providing management and administration services to a related entity (AC & MS Pty Ltd) that is engaged in the business of cleaning.
4. At all material times, the Respondent
4.1 employed a number of people in, and only in, administrative roles (“the Administrative Employees”); and
4.2 was, therefore, an employer within the meaning of the Act.
5.On or about 6 April 2006, the respondent lodged a document entitled Adams Cleaning and Maintenance Services – Collective Workplace Agreement (“the Agreement”) with the Office of the Employment Advocate. [A copy of the Agreement is attached and marked “Doc 1”. A copy of the declaration receipt issued by the Office of the Employment Advocate in respect of the Agreement is attached and marked “Doc 2”.]
6.The Agreement was intended to have effect as an Employee Collective Agreement under the Act. It did not, and was not intended to, regulate the terms and conditions of employment of the Administrative Employees.
7.At no material times did the Respondent employ any cleaners able to be covered by the terms of the Agreement, nor any persons other than the Administrative Employees.
8.In pursuing the Agreement, the Respondent sought to utilise the Administrative Employees who were employed at the time to fulfil the role of “eligible employees”. The Administrative Employees (and only the Administrative Employees):
8.1 were provided with a written copy of the Agreement;
8.2 were provided with an information statement; and
8.3 approved the Agreement by a ballot organised by the respondent.
9.After the approval referred to above, the Agreement was signed on behalf of the Respondent’s employees by, and only by, one of the Administrative Employees.
10.No persons other than the Administrative Employees were involved as employees in the process of negotiation or approval of the Agreement.
11.On or about 30 May 2006, the Respondent lodged the AC & MS Services Variation Agreement Number One (2006) (“the Variation”) with the Office of the Employment Advocate.
[A copy of the Variation is attached and marked “Doc 3”.]
[A copy of the declaration receipt issued by the Office of the Employment Advocate in respect of the Variation is attached and marked “Doc 4”.]
12.The Variation – or the Agreement, as affected by the Variation – did not, and was not intended to, regulate or affect the terms and conditions of employment of the Administrative Employees.
13.In pursuing the Variation, the Respondent sought to utilise the Administrative Employees who were employed at the time to fulfil the role of “eligible employees”. The Administrative Employees (and only the Administrative Employees):
13.1were provided with a written copy of the Variation;
13.2were provided with an information statement; and
13.3.approved the Variation by a ballot organised by the Respondent.
14.No persons other than the Administrative Employees were involved as employees in the process of negotiation or approval of the Variation.
15.It was the intention of the respondent (or of its relevant officers) that, at some point after the workplace agreement in question came into force, the respondent would employ cleaners to provide cleaning services to clients or potential clients of the overall business; and
16.the employee who signed the initial agreement, Mr Prosser, was not appointed as a “bargaining agent” for any of the other employees who voted on the agreement, nor was there any purported or attempted appointment of him as such.”
I will set out below the sections of the Act which are relevant to and which define the alleged infringements. The Act proceeds on the basis that there are to be a series of arrangements commonly, but not strictly accurately described as Australian Workplace Agreements, but here called Workplace Agreements (“WA’s”) governing the contractual arrangements between employers and employees which, if effective, take precedence over any other form of industrial agreement or common law contract. The types of agreement are specified in ss.326 to 330 of the Act but before considering ss.327 and 330 (the other sections not being relevant for this decision) it is important to note the provisions of s.324:
“Extended operation of Part in relation to proposed workplace agreements
So far as the context permits:
(a) a reference in this Part to a workplace agreement includes a reference to a proposed workplace agreement; and [Emphasis added]
(b) a reference in this Part to an employer, in relation to a workplace agreement, includes a reference to a person who will be an employer in relation to a proposed agreement when it comes into operation; and
(c) a reference in this Part to an employee, in relation to a workplace agreement, includes a reference to a person who will be an employee in relation to a proposed agreement when it comes into operation.”
It is submitted by the applicant that even if the court accepts that the agreement lodged with the Employment Advocate by the respondent was not a WA it was a “proposed WA” and therefore constituted a WA for the purposes of considering alleged infringements.
Section 327 deals with an employee collective agreement and states:
“Employee collective agreements
An employer may make an agreement (an employee collective agreement ) in writing with persons employed at the time in a single business (or part of a single business) of the employer whose employment will be subject to the agreement.”
Section 330 deals with an agreement that is being made in anticipation of a new business being commenced. It is in the following form:
“Employer greenfields agreements
An employer may make an agreement (an employer greenfields agreement) in writing if:
(a) the agreement relates to a new business that the employer proposes to establish, or is establishing, when the agreement is made; and
(b) the agreement is made before the employment of any of the persons:
(i) who will be necessary for the normal operation of the business; and
(ii) whose employment will be subject to the agreement.”
It has been suggested by the applicant that it was this type of agreement that the respondent should have lodged and not an agreement under s.327 which is what the agreed facts indicate was lodged.
The other sections of the Act which are important are:
“s.333 When a workplace agreement is made
For the purposes of this Act, a workplace agreement is made at whichever of the following times is applicable:
(a) for an AWA--the time when the AWA is approved in accordance with section 340;
(b) for an employee collective agreement --the time when the agreement is approved in accordance with section 340;
(c) for a union collective agreement--the time when the employer and the organisation or organisations agree to the terms of the agreement;
(d) for a union greenfields agreement--the time when the employer and the organisation or organisations agree to the terms of the agreement;
(e) for an employers greenfields agreement--the time when the employer lodges the agreement (see section 344).”
s.340 Approval of a workplace agreement
…
(2) An employee collective agreement or union collective agreement is approved if:
(a) the employer has given all of the persons employed at the time whose employment will be subject to the agreement a reasonable opportunity to decide whether they want to approve the agreement; and
(b) either:
(i) if the decision is made by a vote--a majority of those persons who cast a valid vote decide that they want to approve the agreement; or
(ii) otherwise--a majority of those persons decide that they want to approve the agreement.”
The following sections define some of the breaches with which this case is concerned; ss.337, 341 and 342:
“s.337 Providing employees with ready access and information statement
(1)If an employer intends to have a workplace agreement (other than a greenfields agreement) approved under section 340, the employer must take reasonable steps to ensure that all eligible employees in relation to the agreement either have, or have ready access to, the agreement in writing during the period:
(a)beginning 7 days before the agreement is approved; and
(b) ending when the agreement is approved.
(2)The employer must take reasonable steps to ensure that all eligible employees in relation to the agreement are given an information statement at least 7 days before the agreement is approved.
(3)Despite subsections (1) and (2), if the agreement is a collective agreement and a person becomes an eligible employee at a time during the period mentioned in subsection (1), the employer must take reasonable steps to ensure that:
(a)the person is given an information statement at or before that time; and
(b)the person either has, or has ready access to, the agreement in writing during the period:
(i) beginning at that time; and
(ii) ending when the agreement is approved under section 340.
(4)The information statement mentioned in subsection (2) and paragraph (3)(a) must contain:
(a)information about the time at which and the manner in which the approval will be sought under section 340; and
(b)if the agreement is an AWA--information about the effect of section 334 (which deals with bargaining agents); and
(c)if the agreement is an employee collective agreement--information about the effect of section 335 (which deals with bargaining agents); and
(d)any other information that the Employment Advocate requires by notice published in the Gazette .
(5)If a waiver has been made under section 338 in relation to the workplace agreement:
(a)subsection (1) and paragraph (3)(b) do not apply if, before the time the waiver was made, the employer had taken reasonable steps to ensure that all eligible employees in relation to the agreement (as at that time) either had, or had ready access to, the agreement in writing; and
(b)subsection (2) does not apply if, before the time the waiver was made, the employer had taken reasonable steps to ensure that all eligible employees in relation to the agreement (as at that time) had been given an information statement in relation to the agreement that complies with subsection (4).
(6)For the purposes of this section, if the workplace agreement incorporates terms from an industrial agreement mentioned in subsection 355(2), the eligible employees have ready access to the workplace agreement only if they have ready access to that instrument in writing.
(7)To avoid doubt, if the content of the workplace agreement is changed during the period mentioned in subsection (1), the change results in a separate workplace agreement for the purposes of this section.
Note: If the content of an agreement for which the employer intends to seek approval is changed, the procedural steps set out in subsections (1), (2) and (3) must be repeated for the resulting separate agreement.
Contravention--ready access
(8) An employer contravenes this subsection if:
(a) the employer lodges a workplace agreement; and
(b) the employer failed to comply with subsection (1) or (if applicable) paragraph (3)(b) in relation to the agreement.
Contravention--information statement
(9) An employer contravenes this subsection if:
(a) the employer lodges a workplace agreement; and
(b) the employer failed to comply with subsection (2) or (if applicable) paragraph (3)(a) in relation to the agreement.
(10) Subsections (8) and (9) are civil remedy provisions.
Note: See Division 11 for provisions on enforcement.
An employer cannot contravene subsection (8) or (9) more than once in relation to the lodgement of a particular workplace agreement.
s.341 Employer must not lodge unapproved agreement
(1) An employer contravenes this subsection if:
(a)the employer lodges a workplace agreement (other than a greenfields agreement); and
(b)the agreement has not been approved in accordance with section 340.
(2) Subsection (1) is a civil remedy provision.
Note: See Division 11 for provisions on enforcement.”
s.342 Employer must lodge certain workplace agreements with the Employment Advocate
(1)If an AWA, an employee collective agreement or a union collective agreement has been approved in accordance with section 340, the employer must lodge the agreement, in accordance with section 344, within 14 days after the approval.
(2)If a union greenfields agreement has been made, the employer must lodge the agreement, in accordance with section 344, within 14 days after the agreement was made.
(3) Subsections (1) and (2) are civil remedy provisions.
Note: See Division 11 for provisions on enforcement.”
It is also important to note the provisions of sub-sections 1 and 2 of s.347:
“(1)A workplace agreement comes into operation on the day the agreement is lodged.
(2)A workplace agreement comes into operation even if the requirements in Divisions 3 and 4 and section 342 have not been met in relation to the agreement.”
and s.351
“Persons bound by workplace agreements
A workplace agreement that is in operation binds:
(a) the employer in relation to the agreement; and
(b) all persons whose employment is, at any time when the agreement is in operation, subject to the agreement; and
(c) if the agreement is a union collective agreement or a union greenfields agreement --the organisation or organisations of employees with which the employer made the agreement.
Note: A person can be bound by a workplace agreement because of Part 11 (which deals with transmission of business).
Note: For the operation of the Australian Fair Pay and Conditions Standard, see Part 7.”
The respondents in this case sought to vary the agreement which they had lodged and as is clear from the agreed facts the variation suffered from the same problems inherent in the original document. Division 8 commencing at s.367 of the Act deals with variations of the agreement and it is sufficient for these reasons to say that the legislation relating to the variations mirrors the legislation relating to original agreements.
The court has power under s.409 to declare an agreement void:
“Court may declare workplace agreement or part of workplace agreement void
The Court may make an order:
(a) declaring that the workplace agreement is void; or
(b) declaring that specified terms of the workplace agreement are void.”
and there is provision under s.418 for regulations to make provisions for a number of matters including:
“(e) the signing of workplace agreements by persons bound by those agreements, or representatives of those persons.”
It is accepted that at the time of the alleged breaches and at the time of the commencement of these proceedings there were no regulations in force that permitted a workplace inspector to apply to this court for an order for a contravention of a civil remedy provision in part 4 or 8 of Chapter 2 of the Regulations. Neither was there provision for the court to order pecuniary penalties under s.846(2)(g) of the Act for the breach of a regulation. Regulations to this effect came into force in December 2006. The respondent argues that insofar as these proceedings include a claim for a pecuniary penalty for breach of a regulation it could not be laid and if it could be laid there was no penalty applying at the time the application was made nor at the time of the offence.
The applicant now seeks the imposition of pecuniary penalties under sub-s.407(1)(b) of the Act for contravention of sub-ss.337(8), 337(9), 341(1), 374(1) and the imposition of a penalty under sub-s.846(2)(g) of the Act for contravention of Regulation 8.13(1)(b) of the Workplace Relations Regulations 2005.
The respondent’s answer to these charges is elegant in its simplicity. It submits that s.327 of the Act defines the jurisdictional facts upon which the existence of an Employee Collective Agreement rests. These are that the agreement must be:
a)in writing
b)between an employer and
c)an employee whose employment will be subject to the agreement. [Emphasis added.]
The respondent argues that in the absence of one or more of those jurisdictional facts there is no agreement and there can be no breach of provisions of the Act relating to the way in which such an agreement achieves legal recognition and enforceability. The jurisdictional fact which has not been established in this case and is incapable of being established from the agreed facts is that the agreement was proposed to be made between the employer and persons whose employment would be the subject of the agreement. The applicant in its written submissions at [33] goes some way to supporting that argument when he says:
“The respondent’s choice to pursue that part was ill considered; if an employer has, in respect of a proposed workplace agreement, no “eligible employees” then it cannot pursue an employee collective agreement (nor, for that matter any type of agreement other than an employer or union greenfields agreement). So much is self evident from the provisions of the Act concerning employee collective agreements – eligible employees are a necessary pre-requisite for that type of agreement” (emphasis added).”
The applicant seeks to avoid the sting of the respondent’s argument concerning the lack of jurisdictional fact by praying in aid the general scheme of the Act and number of specific provisions. The applicant argues that the Act is designed to change the nature of industrial agreements from a pre operation vetting procedure to a post operation enforcement procedure. Under the Act before the 2006 amendments Workplace Agreements did not become operational until they were approved by the AIRC having been vetted for compliance with the provisions of the Act. The scheme of the current system as evidenced in particular by s.347(2) and by the provisions of s.324(a) allowed any written agreement, whether in proper form or not, to be lodged and to take effect. It is then up to one of a number of people including an inspector, an employee and in some circumstances a union or even an employer, to apply to a court for a civil penalty if there is a breach of the provisions of the Act pursuant to s.405. The court has powers to order civil penalties and also to declare a workplace agreement or part of it void under s.409 or vary the terms of the agreement under s.410. The applicant argues that these provisions and powers allow an agreement of the type with which this court is currently concerned to be lodged and approved notwithstanding failures to comply with the pre lodgement procedure and bring the agreement into operation under s.347, again notwithstanding that the requirements set out in Divisions 3 and 4 (ss.334 to 341) are not complied with.
The applicant additionally argues that the inclusion of a “proposed agreement” into the definition of a WA found in sub-s.324(a) covers the situation where an otherwise invalid agreement is lodged because in the context of this Act a proposed workplace agreement means any workplace agreement that the parties objectively intended should govern their relationship. Before I deal with these arguments it is as well to clarify the concept of a jurisdictional fact.
Where the existence of certain facts is a condition precedent to jurisdiction, a court or tribunal must first determine whether those said facts exist: R v Blakeley; Ex parte Assn of Architects (1950) 82 CLR 54. Fullagar J in Blakeley affirmed the jurisdictional fact doctrine:
“Generally speaking, when a Tribunal, other than a superior Court in the technical sense, is called upon to exercise jurisdiction, it must, of necessity, begin by considering for itself the preliminary question whether it possesses the jurisdiction invoked. That question may depend on questions of law or questions of fact or on questions of both law and of fact. As Griffith CJ said in Federated Engine-Drivers’ and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR at p.415:
“…the first duty of every judicial officer is to satisfy himself that he has jurisdiction, if only to avoid putting the parties to unnecessary risk and expense.”
In the same case Barton J said:
“Where the jurisdiction is disputed, adequate and careful inquiry is still the duty of the court of first instance.”
(1911) 12 CLR at p. 428.
But the important point is that the decision or finding with regard to the existence of jurisdiction, whether it be affirmative or negative, stands in a radically different position from a decision or finding given or made within jurisdiction on the merits of the case. The latter is conclusive and binding subject only to any appeal that may be given: if no appeal is given, it is absolutely conclusive and binding. The former is not conclusive or binding at all. It is open, if it be affirmative and wrong, to prohibition. It is open, if it be negative and wrong, to mandamus. The position is very clearly put by Coleridge J in Bunbury v Fuller (1853) 9 Ex, at pp 140, 141 (156 ER at p 60), in a passage quoted by Isaacs J in the Engine-Drivers’ Case (1911) 12 CLR, at p454. His Lordship said:
“Suppose a Judge with jurisdiction limited to a particular hundred, and a matter is brought before him as having arisen within it, but the party charged contends that it arose in another hundred, this is clearly a collateral matter independent of the merits; and on its being presented, the Judge must not immediately forbear to proceed, but must inquire into its truth or falsehood, and for the time decide it, and either proceed or not proceed with the principal subject-matter according as he finds on that point; but this decision must be open to question, and if he has improperly either forborne or proceeded on the main matter in consequence of an error, on this the Court of Queen’s Bench will issue its mandamus or prohibition to correct his mistake.””
More recent authority for the doctrine is found in Corporation of the City of Enfield v Development Assessment Commission & Anor [2000] 169 ALR 400; HCA 5 where Gleeson CJ, Gaudron, Gummow, Kirby Hayne JJ state:
“The term “jurisdictional fact” (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome.” [28]
It need not be a “fact” within the ordinary meaning of the term, but may be a precondition or criterion which may consist of “various elements”: as per Gummow J in Minister for Immigration v Eshetu (1999) 162 ALR 577 at [130].
Aronson, Dyer and Groves (2004) Judicial Review of Administrative Actions (3rd Ed) outline the general approach taken by the courts in determining whether a factual reference in a statutory provision is a jurisdictional fact:
“The characterization of facts as jurisdictional is ultimately a constructional issue. What, then, are the factors most commonly considered by the courts in the course of construing the statutory requirement for particular facts?
First and foremost is the statute’s drafting. Doubtless influenced by the idea that a jurisdictional fact has an objective existence, the courts never seem to treat a factual requirement as jurisdictional if the statute requires the decision-maker to be “satisfied” as to its existence, or to have an “opinion” that it exists. In such cases, the courts recognise that the fact-finding task is for the decision-maker, not the reviewing court.
…
It would seem to follow as a matter of logic that if the drafter has not stated the requirement for a fact to exist in terms of the decision-maker’s satisfaction, the fact must be jurisdictional. Jurisdictional facts, however, are mercifully rare, because of the extreme improbability of Parliament intending to give the courts the last word on most factual issues. The logical inverse of the significance of subjective drafting, therefore, does not necessarily apply. This is particularly true of the case where the decision-maker is a court. The classic statement comes from Dixon J in Parisienne Basket Shoes Pty Ltd v Shyte (1938) 59 CLR 369 at 391:
“It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of [an inferior] court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the [inferior] court’s opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary [inferior] courts of justice should receive such an interpretation unless the intention is clearly expressed.”” [p.230]
This passage from Parisienne was recently quoted by Besanko J in Beyazkilinc v Manager, Baxter Immigration, Reception and Processing Centre [2006] FCA 1368. In that case his Honour set out a number of considerations established by the authorities relevant to a determination of whether a factual reference in a statutory provision is a jurisdictional fact at [41]:
“1. If the factual reference (as it is sometimes called) is expressed in terms of the ‘opinion’, ‘belief’ or satisfaction’ of the primary decision-maker then the factual reference is not a jurisdictional fact, although there will still be a jurisdictional fact, namely, the primary decision-maker’s state of mind. The contrary does not follow, in that the absence of reference to ‘opinion’, ‘belief’ or ‘satisfaction’ of the decision-maker does not mean the factual reference is a jurisdictional fact (Aronson, Dyer and Groves, Judicial Review of Administrative Action (3rd ed, 2000) pp 227–239).
2. The nature of the task is important. If the task is a difficult and complex one involving an assessment of complex facts and the forming of opinions on a wide range of matters then that suggests that the factual reference is not a jurisdictional fact because it is considered that Parliament intended that the decision be made by the primary decision-maker: Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 per Black CJ at 465–466 (High Court: Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297); Cabal v Attorney-General of the Commonwealth (2001) 113 FCR 154.
3. If inconvenience results from holding that a factual reference is a jurisdictional fact then that will be considered a reason not to hold that it is a jurisdictional fact: Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 per Black CJ at 465–466; Cabal v Attorney-General of the Commonwealth (above) per Weinberg J at 173 [74]. With respect, the clearest statement of the principle remains that of Dixon J (as he then was) in Parisienne Basket Shoes Pty Ltd v Whyte…
4. The importance of the decision in terms of the nature of the rights affected by it is a matter to be taken into account. If the rights at stake are fundamental or important rights then that may suggest that the factual reference is a jurisdictional fact: Buck v Comcare (1996) 66 FCR 359 per Finn J at 364.”
There is a distinction between a fact that is jurisdictional and a fact which is to be established in the course of enquiry. In Woolworths Ltd v Pallas Newco Pty Ltd & Anor [2004] NSWCA 422 Spigelman J states at [46]:
“[46] Finally, as the Privy Council identified in a seminal authority on this area of
the law (Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 at
442–443), there is a distinction between a fact that is an “essential preliminary
to the decision-making process” and a “fact to be adjudicated upon in the
course of the inquiry”. (See also, for example, Amalgamated Society of
Carpenters and Joiners v Haberfield Pty Ltd (1907) 5 CLR 33 at 53; Ex parte
Hulin; Re Gillespie (1965) 65 SR (NSW) 31 at 33; 82 WN (Pt 2) (NSW) 232
at 234.)[47] The word “preliminary” does not, in this context, refer to a chronological
sequence of events, but to matter that is legally antecedent to the decision-
making process. A decision-maker may well determine whether or not s/he has
jurisdiction at the same time as s/he carries out the substantive decision-
making process.[48] The extrinsic or ancillary or preliminary nature of the relevant fact makes it
more likely that the fact is jurisdictional. (See Colonial Bank of Australasia v
Willan (at 443); R v Nat Bell Liquors Ltd [1922] 2 AC 128 at 158; Ex parte
Mullen; Re Hood (1935) 35 SR (NSW) 289 at 300; 52 WN (NSW) 84 at 85;
Ex parte Hulin; Re Gillespie (at 33; 234); Tasmanian Conservation Trust Inc v
Minister for Resources (1995) 55 FCR 516 at 539; Timbarra Protection
Coalition (at 65 [44] and 65 [50]–[60]). See also M Aronson, “The Resurgence
of Jurisdictional Facts” (2001) 12 Public Law Review 17 at 34.)[49] A factual reference that is appropriately characterised as preliminary or
ancillary to the decision-making process or which is, in some other manner,
extrinsic to the facts and matters necessary to be considered in the exercise of
the substantive decision-making process itself, is a reference of a character that
the Parliament intended to exist objectively.”Much of the dicta in relation to jurisdictional fact is in the context of administrative review. However whilst it is wise to be sensible of the distinction between principles applicable to a court reviewing the determination of a jurisdictional fact by an administrative tribunal or decision-maker, and the determination of a jurisdictional fact by the court at first instance as in the present case, the decisions provide useful guidelines. In Craig v South Australia (1995) 131 ALR 595 Brennan, Deane, Toohey, Gaudron and McHugh JJ highlight the circumstances, in the context of the jurisdictional fact doctrine, in which a lower court or tribunal will commit jurisdictional error:
“…an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case.” [p.601]
In Eshetu the legislative section under consideration was said to be “some fact or event a condition upon which the existence of which the jurisdiction of a tribunal or court shall depend” (R v Judges of Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113 at 125/ 23 ALR 69; cited by Gummow J at [127]). Accordingly:
“The court or tribunal cannot give itself jurisdiction by erroneously deciding that the fact or event exists (R v Judges of Federal Court of Australia; Ex parte Western Australian National Football League (1979) 143 CLR 190 at 214; 23 ALR 439).” As per Gummow J at [127].”
Where administrative decision-making depends on the existence of certain facts, a court on review is compelled to consider itself whether those facts exist. Gaudron J in Enfield noted:
“Where, as here, the legality of an executive or administrative decision or of action taken pursuant to a decision of that kind depends on the existence of a particular fact or factual situation, it is the function of a court, when its jurisdiction is invoked, to determine, for itself, whether the fact or the factual situation does or does not exist. To do less is to abdicate judicial responsibility.” [60]
In Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 153 ALR 490 the High Court considered the validity of an act in breach of a statutory condition and outlined the approach to such a determination. McHugh, Gummow, Kirby and Hayne JJ firstly considered general principles of statutory construction:
“…the main duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.” [78] [Footnotes omitted.]
Their Honours go on to discuss the validity of an act which does not comply with the relevant section under consideration:
“[91] An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
[92] Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory…
[93] A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute”.” [Footnotes omitted.]
This approach was later adopted by the High Court in Enfield City Corporation; Woolworths (supra) per Spigelman CJ at [11]-[12]. Their Honours concluded in that case that the intention of the provision was not to impose “essential preliminaries” upon the exercise of the respondent’s function, therefore the breach of the section was not intended to invalidate any act done in breach of that section. In Project Blue Sky the court found that a better interpretation, given the public interest, was that whilst it imposed a legal duty upon the respondent it did not invalidate all actions in breach: [94]-[100]. Section 327, in contrast to the section considered in Blue Sky, arguably imposes “essential preliminaries” upon the creation of a valid workplace agreement. That an agreement be in existence in accordance with s.327 is an ancillary precondition to the imposition of the operational and penalty provisions. Accordingly, the elements of s.327 are ‘jurisdictional facts’ required to be in place before jurisdiction of this court is enlivened.
I am persuaded by the submissions of the respondent that there cannot be a WA between an employer and persons other than employees whose employment would be subject to the agreement. I accept that in certain circumstances an agreement can bind persons who are not parties to it. So, for example, a freehold covenant or easement placing a restriction or obligation in relation to a particular parcel of land will bind any successors in title: Seddon & Ellinghaus Cheshire and Fifoot’s Law of Contract (8th Australian Edition) at [7.27]. So too will beneficiaries or personal representatives of the deceased be bound, so far as the assets of the estate extend, to perform any contractual obligations of the deceased despite not being named a party to the contract: Chitty on Contracts (29th Ed) at [20-007]. However I am unable to find any authority to suggest that a person who has no connection whatsoever with the subject matter of an agreement can bind persons who are legitimately the subject of such an agreement without their knowledge or consent; that is certainly the position at common law. The concept of the ‘greenfields agreement’ provided for in this legislation does not do that, it provides for a one sided arrangement which is an agreement in name only. But that arrangement is so hedged about with provisos that it is clear that the legislators intended it to be an exception. Whereas the provisions of the Act relating to employee collective agreements, union collective agreements and Australian Workplace Agreements indicate the clear intention that the persons to be bound by the agreement should have an opportunity to participate in the negotiation process.
There are some important matters to notice about the “savings provisions” of s.347 relied on so heavily by the applicant. Firstly, they do not include s.327 (the jurisdictional fact section) which falls within Division 2 of the Act and not Division 3 and 4 as required. Secondly, the definition of “eligible employee” found in s.336 is provided for the purposes of Division 4 and not for any other division so the definition cannot be referred back and used in some way to bring s.327 within the division, which is what the applicant needs to do in order for that section to be protected. I am of the view that the scheme of Division 4 is consistent with the general scheme of the Act, namely to allow agreements that do not strictly comply with the lodgement provisions of the Act to be effective immediately subject to the ability to bring civil penalty proceedings or an application to avoid the agreement later. In other words it is consistent with the idea of streamlining the introduction of Workplace Agreements which is part of the philosophy behind the Act. But there has to be a real “agreement” as defined in s.327. The change in the approach to WA’s was listed as one of the major reforms of the Workplace Relations Amendment (Work Choices) Bill 2005 in the Explanatory Memorandum:
“The major reforms to be implemented by the Bill will:
…
· place a greater emphasis on direct bargaining between employers and employees by replacing the certification and approval process for making agreements with a simpler streamlined lodgement only process…” [p. 1]
The EM further identifies, in its Regulation Impact Statement, the key benefits of the new process in relation to WA’s to business, employers and employees, and government:
“Simplify the workplace agreement-making process
Under Work Choices, the Government will replace the current time consuming and legalistic agreement certification and approval process with a streamlined, simpler and less costly lodgement based process to be administered by the Office of the Employment Advocate (OEA).
Costs and benefits to business
…
A lodgement only process with the OEA will address the unnecessary administrative burden, reduce lengthy processing times, and provide a greater incentive for employers and employees to embrace agreement making. No approval process would be required, however, agreements will need to comply with the Standard. To ensure employee entitlements are protected, an improved compliance regime will also be introduced as part of the legislation.…
…
Costs and benefits to Government
The current agreement approval process is bureaucratic, requiring an application for certification to the AIRC. Agreements have to be assessed and approved by the AIRC against a number of factors, including the NDT based on any federal or state award covering the employees and any other federal, state or territory law…
A simplified lodgement process administered by one body, the OEA, will considerably simplify the current process. A simplified lodgement process will remove previous administrative disincentives to agreement making and encourage employers and employees to tailor their working arrangements to their own needs and circumstances….” [p.16-18]
I am similarly unpersuaded by the applicant’s argument that an agreement that is not made in accordance with s.327 qualifies as a proposed workplace agreement and is therefore defined as an agreement notwithstanding the non existence of the jurisdictional fact. In Employment Advocate v Williamson (2001) 185 ALR 590, a decision of the Full Bench of the Federal Court, Gray J considered the meaning of the word “propose” in the industrial context. At [15] and [16] his Honour said:
“[15] An examination of s 298L reveals the frequent use of the verb "propose" in both its present and past tense. This gives rise to a question as to the meaning that the word is intended to have in this context. Among the meanings given in the Macquarie Dictionary 3rd ed. 1998 are the following that appear to be relevant:
"1. to put forward (a matter, subject, case, etc.) for consideration, acceptance, or action ... 2. to put forward or suggest as something to be done ... 4. to put before oneself as something to be done; to design; to intend."
The verb can therefore be used in the sense of to make a proposal, ie to put forward for consideration, acceptance or action. Alternatively, it can mean simply to intend or to form a purpose. It is possible for a person to propose to do something, in the sense of forming an intention to do that thing, without communicating the fact that he or she proposes to take that action. It is difficult to see, however, how an uncommunicated intention could be relevant to s 298K. It is impossible to envisage a situation in which an employer or other person could take action of any of the kinds contemplated by s 298K for the reason that an employee, other person or independent contractor had formed a secret intention to do something.”
[16] On the other hand, it seems unlikely that the legislative intention was to confine the relevant provisions of s 298L to situations in which an employee, other person, or independent contractor makes or has made a formal proposal to do something. The objects of the provision are more readily served by providing persons who have formed an intention to do something with the protection that Pt XA gives. The practicality, however, is that these provisions cannot operate in respect of a person whose intention remains secret from the person who acts.”
His Honour then went on to deal with the disjunctive “does not propose” parts of the section he was concerned with before stating at [20]:
“[20] For these reasons, I am of the view that "does not propose to" in s 298L(1)(b) and (c)(ii) means "proposes not to", and "do not propose to" in s 298L(1)(c)(i) means "propose not to". Before it is possible to carry out conduct of any of the kinds referred to in s 298K, for the prohibited reason referred to in s 298L(1)(b), there must be an employee, independent contractor or other person who is not, or proposes not to become, a member of an industrial association. Before it is possible to carry out such conduct for the prohibited reasons referred to in s 298L(1)(c), there must be a person who has one or more employees who are not, or propose not to become, members of an industrial association, or the person must have not paid, or propose not to pay, a fee to an industrial association. In each case, of course, the intention constituted by the proposal cannot be secret.” [Emphasis added]
I read this paragraph as suggesting that the proposal must be related to the jurisdictional fact and so that in the context of the instant case there must have been an intention to create an agreement between the employer and employees who would be subject to the agreement. The agreed facts showed clearly that at the time the document was lodged the employees who were parties to it did not and had no intention of becoming bound by it. The applicant’s argument is that any document in which one party is objectively seen as evincing an intention to create a WA is sufficient to constitute a proposed agreement but that, to my mind, is not a correct analysis. If the legislature had intended that an agreement which could never be a WA because of the lack of an element of the jurisdictional facts necessary should nonetheless be considered, for the purposes of the Act, to be such an agreement then the word it should have used would have been “purported”. The legislature is no stranger to the word “purported” it is found, for example, in the Migration Act 1958:
“5E Meaning of purported privative clause decision
(1)In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not:
(a) a failure to exercise jurisdiction; or
(b) an excess of jurisdiction;
in the making of the decision.
(2) In this section, decision includes anything listed in subsection 474(3).”
The definition of ‘purported’ in s.5E has relevance to s.474 of the Migration Act which states:
“(1) A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
…”
The word is used in s.9 Corporations Act 2001 in the definition of ‘statutory demand’ as being:
“s.9 (a) a document that is, or purports to be, a demand served under section 459E…”
In Kalamunda Meat Wholesalers Pty Ltd v Reg Russell & Sons (1994) 128 ALR 149, Hill J, considering the section (in the same terms) in Corporations Law (now repealed) stated at [p.155]:
“The word “purport” is defined relevantly in the Macquarie Dictionary, 2nd ed, rev as:
‘1. to profess or claim: “a document purporting to be official”. 2. to convey to the mind as the meaning or thing intended; express; imply.’
In some contexts the word may merely mean “has the effect of”: cf Joseph v Joseph [1966] 3 All ER 486. However, in the present context, in my view, it has its more usual meaning of “profess” or “claim”.”
In Dean and Westham Holdings Pty Ltd v Lloyd [1991] 3 WAR 235 Ipp J at [252] considers the word in reference to s.9(4) of the Property Law Act 1969 (WA):
“…in my view, an instrument which is not clearly indicated or distinctly stated to be a deed, but which otherwise conveys to the mind, by implication, through its tenor and the words used therein, that it is intended to be a deed, is an instrument purporting to be a deed.”
The failure to use this description of the “agreement” encourages me to the view that it was not intended to cover such a situation and that it would be stretching the meaning of “proposed” to include what is essentially the definition of “purported”.
For the reasons given above I would dismiss the application. I do not accept the argument put by the applicant that this would render the legislation nugatory as against this respondent. The respondent is in the same position as if there was no WA in force. To the extent that it might have employed some people on the terms of the original and “varied” agreement the arrangements will give it no benefit. If there is a relevant industrial agreement in existence that is an improvement upon those terms then the employees may well be entitled to the benefits of it. If they have not received those benefits they can commence action to recover them. It is understandable that the applicant should wish to prevent employers from attempting to evade the consequences of the Act by subterfuge as might be suggested by the agreed facts in this case, noting as I do the variation of the agreement which reduced the wages for the first three months from an hourly rate of $15.00 to $14.50 and the hourly rate thereafter from $16.00 to $15.50. But it is equally important that Acts which provide for substantial pecuniary penalties should be strictly construed and where found wanting be amended legislatively rather than seeking by appeal to the court’s better nature to strain the definition of words in common usage.
The second rung of the respondent’s defence relates to the two lacuna in the Regulations. The first was the failure prior to the lodgement of the “agreement” to regulate for inspectors to enforce the provisions of the Regulation 8.13 in relation to the signing of workplace agreements which required:
“(1) For paragraph 418 (e) of the Act, an employer must obtain the signatures of:
(a) for all workplace agreements -- the employer or employers in relation to the agreement; and
(b) in addition to paragraph (a):
(i) if the workplace agreement is an employee collective agreement -- a representative of the employees to the agreement or a bargaining agent appointed under section 335; or
(ii) if the workplace agreement is a union collective agreement -- the organisation or organisations of employees with which the employer made the agreement; or
(iii) if the workplace agreement is a union greenfields agreement -- the organisation or organisations of employees with which the employer made the agreement.”
The second lacuna was the existence of a regulation allowing this court to order pecuniary penalties. It is accepted by the applicant that legislative amendments are presumed, in the absence of express provision otherwise, not to act retrospectively; Fisher v Hebburn Limited (1960) 105 CLR 188; some Regulatory amendments are governed by s.46B Acts Interpretation Act 1901. But the applicant argues that this presumption applies to enactments that are merely procedural and do not affect substantive rights; Maxwell v Murphy (1957) 96 CLR 261. I think that the failure to designate an inspector as the person who can enforce the provisions of the regulation is a procedural matter and as such may well be capable of being remedied by the recent regulation. I have a different view in relation to the question of penalty. It seems to me that the question of penalty must be substantive and would disadvantage the respondent. If there was no penalty prescribed for the civil penalty provisions under the regulations at the time the regulation was breached then I do not believe that an attempt retrospectively to impose such a penalty upon an offender would be successful. I express these views only for the sake of completeness because, of course, the alleged infringements respond to a WA which I have found did not exist.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Raphael FM.
Associate:
Date:
CORRECTIONS
(1)Orders: Order (2) deleted.
(2)Paragraph 24: deleted.
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