Melrose Farm Pty Ltd t/as Milesaway Tours v Milward
[2008] WASCA 175
•28 AUGUST 2008
JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT
CITATION: MELROSE FARM PTY LTD T/AS MILESAWAY TOURS -v- MILWARD [2008] WASCA 175
CORAM: STEYTLER P
PULLIN J
LE MIERE J
HEARD: 1 & 28 MAY 2008
DELIVERED : 28 AUGUST 2008
FILE NO/S: IAC 8 of 2007
Consolidated by Orders dated 8 January 2008
BETWEEN: MELROSE FARM PTY LTD T/AS MILESAWAY TOURS
Appellant
AND
WARREN GRAHAM MILWARD
Respondent
FILE NO/S :IAC 7 of 2007
BETWEEN :CHRISTINE ANNE MILES & RICHARD GLINTON MILES T/AS MILESAWAY TOURS
Appellant
WARREN GRAHAM MILWARD
Respondent
FILE NO/S :IAC 9 of 2007
BETWEEN :MELROSE FARM PTY LTD T/AS MILESAWAY TOURS
Appellant
WARREN GRAHAM MILWARD
Respondent
FILE NO/S :IAC 10 of 2007
BETWEEN :CHRISTINE ANNE MILES & RICHARD GLINTON MILES T/AS MILESAWAY TOURS
Appellant
WARREN GRAHAM MILWARD
Respondent
ON APPEAL FROM:
Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Coram :RITTER AP
SMITH SC
WOOD C
File No :FBA 5 of 2007, FBA 6 of 2007, FBA 7 of 2007, FBA 8 of 2007
Catchwords:
Industrial law (WA) - Appeal against decision of Full Bench of Western Australian Industrial Relations Commission - Past employee's entitlement to pay - Whether definition of 'industry' in s 37 has the meaning defined in s 7 of Industrial Relations Act 1979 (WA)
Industrial law (WA) - Appeal against decision of Full Bench of Western Australian Industrial Relations Commission - Past employee's entitlement to pay - Proceedings initiated by industrial inspector - Whether industrial inspector validly appointed - Whether de facto officer doctrine operates so that the industrial inspector has standing - Turns on own facts
Industrial law (WA) - Appeal against decision of Full Bench of Western Australian Industrial Relations Commission - Whether past employee was a 'casual employee' - Whether definition of 'casual employee' in Minimum Condition of Employment Act 1993 (WA) s 3(1) is implied into Transport Workers (Passenger Vehicles) Award 1978 (WA) - Turns on own facts
Industrial law (WA) - Appeal against decision of Full Bench of Western Australian Industrial Relations Commission - Whether separate breach of Transport Workers (Passenger Vehicles) Award 1978 (WA) occurred on each occasion when past employee was paid in contravention of the Award - Turns on own facts
Industrial law (WA) - Appeal against decision of Full Bench of Western Australian Industrial Relations Commission - Whether reg 12(4) of Industrial Magistrates Court (General Jurisdiction) Regulations 2005 (WA) is a valid regulation pursuant to s 113(3) of Industrial Relations Act 1979 (WA)
Legislation:
Industrial Magistrates Court (General Jurisdiction) Regulations 2005 (WA), reg 12(4)
Industrial Relations Act 1979 (WA), s 7, s 37, s 83, s 83A, s 98, s 113(3)
Magistrates' Court (Civil Proceedings) Act 2004 (WA), s 12(1)
Minimum Conditions of Employment Act 1993 (WA), s 3(1)
Public Sector Management Act 1994 (WA), s 36, s 64
Transport Workers (Passenger Vehicles) Award 1978 (WA), cl 3, cl 14(5)
Result:
Appeals dismissed
Category: B
Representation:
IAC 8 of 2007
Consolidated by Orders dated 8 January 2008
Counsel:
Appellant: Mr G McCorry
Respondent: Mr R J Andretich & Mr A Shuy
Solicitors:
Appellant: Labourline
Respondent: State Solicitor for Western Australia
IAC 7 of 2007
Counsel:
Appellant: Mr G McCorry
Respondent: Mr R J Andretich & Mr A Shuy
Solicitors:
Appellant: Labourline
Respondent: State Solicitor for Western Australia
IAC 9 of 2007
Counsel:
Appellant: Mr G McCorry
Respondent: Mr R J Andretich & Mr A Shuy
Solicitors:
Appellant: Labourline
Respondent: State Solicitor for Western Australia
IAC 10 of 2007
Counsel:
Appellant: Mr G McCorry
Respondent: Mr R J Andretich & Mr A Shuy
Solicitors:
Appellant: Labourline
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Australasian Meat Industry Employees Union v Sunland Enterprises Pty Ltd (1988) 24 IR 467
Australian Shipbuilding Industries (WA) Pty Ltd v Maritime Workers' Union of Western Australia (1977) 57 WAIG 458
BHP Billiton Iron Ore v AFMEPKIU (2006) 153 IR 397
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
City of Wanneroo v Holmes (1989) 30 IR 362
Coco v The Queen (1994) 179 CLR 427
Commissioner of Taxation v Union Fidelity Trustee Co (1977) 137 CLR 275
Deputy Commissioner of Taxation (NSW) v Mutton (1988) 79 ALR 509
Doyle v Sydney Steel Co Ltd (1936) 56 CLR 545
Duperouzel v Cameron (1973) WAR 181
Edwards (Inspector of Taxes) v Clinch [1980] 3 WLR 521
Ex Parte Professional Engineers Association (1959) 107 CLR 208
Federated Municipal and Shire Council Employees Union of Australia v Melbourne Corporation (1919) 26 CLR 508
Federated State School Teachers' Association of Australia v Victoria (1929) 41 CLR 569
G J Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503
Gardner v The Queen (2003) 39 MVR 308
Gidaro v Secretary, Department of Social Security (1998) 154 ALR 550
Hamzy v Tricon International Restaurants [2001] FCA 1589; 115 FCR 78
Josephson v Walker (1914) 18 CLR 691
Lindner v Murdock's Garage (1950) 83 CLR 628
Love Bus and Taxi Service v Zucchiatti (2006) WAIRC 05758
McLean v Kowald (1974) 9 SASR 384
Metals and Engineering Workers Union v Centurion Industries Ltd (1996) 76 WAIG 1287
Ogden Industries Pty Ltd v Lucas (1968) 118 CLR 32
Parker & Son v Amalgamated Society of Engineers (1926) 29 WALR 90
Pitfield v Franki (1970) 123 CLR 448
Printing and Numerical Company v Sampson (1875) LR 19 Eq 462
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
Puntoriero v Water Corporation (2000) 199 CLR 575
R v Coldham; Ex Parte Australian Social Welfare Union (1983) 153 CLR 297
Re Lee; Ex Parte Harper (1986) 160 CLR 430
Reed v Blue Line Cruisers Ltd (1996) 73 IR 420
Ringrow v BP Australia Pty Ltd (2005) 224 CLR 656
Ryde‑Eastwood Leagues Club Ltd v Taylor (1994) 56 IR 385
Silberschneider v MRSA Earth Moving (1988) 68 WAIG 1004
Transport Accident Commission v Treloar [1992] 1 VR 447
Transport Workers Union v DB & B Adams (1980) 60 WAIG 870
Transport Workers Union v Pinnacle Services (2000) 80 WAIG 4402
Transport Workers Union v Pinnacle Services Pty Ltd (1999) 79 WAIG 3567
University of Western Australia v University of Western Australia Academic Staff Association (1979) 59 WAIG 909
Vilips v Carpenters Union [1962] WAR 27
STEYTLER P: I agree with Le Miere J.
PULLIN J: The facts and the grounds of appeal are all set out in Le Miere J's reasons for decision. There are two main appeals. One, IAC 8 of 2007, is an appeal by the employer Milesaway Tours when operated by Mr and Mrs Miles and the other, IAC 9 of 2007, is by Milesaway Tours in its corporate embodiment. The other appeals are appeals which are unnecessary if the two main appeals succeed.
The critical ground in the two main appeals is ground 1. It is critical because if the appellant succeeds on that ground, the appellant succeeds in the appeal. Ground 1 involves the correct construction of the award in question and of s 37 of the Industrial Relations Act 1979 (WA).
Section 37 has the effect of imposing what in a past version of the industrial legislation of this State, was called the 'common rule'. The award system has been about in Western Australia for over a century. The effect of a common rule award which by statute binds persons other than the immediate parties to the dispute was commented upon by Sir Samuel Griffiths in Josephson v Walker (1914) 18 CLR 691, 696, when he said concerning industrial legislation in New South Wales:
In the ordinary case of an award by arbitrators appointed by the parties the obligation created is one arising out of contract. It is founded upon the submission, by which the parties agree to be bound by the decision of the arbitrator. But in this case that which is called an award is of an entirely different character. The obligation created by it does not depend upon any agreement of the parties express or implied, and may arise without their knowledge. If by the award it is determined that journeymen plumbers shall receive not less than a certain rate of wages, each journeyman plumber is entitled to those wages, and, although the employer and the employee have gone on for a long time the one paying and the other receiving what each honestly believes to be the proper rate of wages, nevertheless if it is afterwards found that the wages paid are less than those fixed by the award, the right of the employee to receive the wages so fixed has accrued.
It is of importance that persons bound by an award are able to ascertain this by reading the award.
The appellant was not a respondent or otherwise a party to the proceedings which led to the making of the Transport Workers (Passenger Vehicles) Award 1978 (WA). Clause 3 of the award under the heading 'Scope' reads:
This Award shall apply to all bus drivers (including service, tour, charter and school bus drivers) employed in the classifications described in
Clause 10 - Wages of this Award, except those workers employed by the Western Australian Government Railways, the Eastern Goldfields Transport Board and the Metropolitan (Perth) Passenger Transport Trust.
If the award extended to and bound the appellants it was because of s 37 of the Industrial Relations Act 1979 which reads:
An award has effect according to its terms, but unless and to the extent that those terms expressly provide otherwise it shall, subject to this section -
(a)extend to and bind -
(i)all employees employed in any calling mentioned therein in the industry or industries to which the award applies; and
(ii)all employers employing those employees;
and
(b)operate throughout the State, other than in the areas to which s 3(1) applies.
The word 'industry' is used in s 37 and that word is defined in s 7(1). Section 7(1) begins with the phrase 'In this Act, unless the contrary intention appears'. This states what must always be understood when a word is defined in an Act whether that qualifying phrase appears or not: Transport Accident Commission v Treloar [1992] 1 VR 447, 449.
The following then appears in s 7(1):
'Industry' includes each of the following -
(a)any business, trade, manufacturer, undertaking, or calling of employers;
(b)the exercise and performance of the functions, powers, and duties of the Crown and any Minister of the Crown, or any public authority;
(c)any calling, service, employment, handicraft, or occupation or vocation of employees
whether or not apart from this act, it is, or is considered to be, industry or of an industrial nature, and also includes -
(d)a branch of an industry or a group of industries.
The word 'includes' is used here in the orthodox way (Gardner v The Queen (2003) 39 MVR 308 [47]) to extend the ordinary meaning of the word 'industry'. The ordinary meaning of 'industry' refers to a branch of trade or manufacture or any large scale business activity. See Macquarie Dictionary. The word does not, in ordinary meaning, refer to the calling, occupation or vocation of employees. However, by reason of par (c) in the definition of 'industry', a reference to the 'calling' or 'occupation' or 'vocation' of employees may, if the context permits, be a reference to an industry.
The appellant's submission was that 'industry' in s 37 'means the industry of the employer' and not the vocation of employees and that in any event the award does not identify any industry. The first submission cannot be correct if par (c) of the definition of 'industry' may be applied in s 37. That issue has to be addressed first.
Does par (c) of the definition of 'industry' apply in s 37?
Section 37 has been drawn in a way which will give an award binding effect and which will extend to employees and their employers if:
(a)the calling of those employees is 'mentioned' in the award; and
(b)if an industry is identified.
Section 37 is different from the legislation before 1979 because the 'common rule' provision in the predecessor to s 37, namely s 85 of the Industrial Relations Act 1912, stated that an award would be a 'common rule of any industry to which it applies' and shall become binding on 'all employers and workers … engaged at any time during its currency in that industry'. Thus, in s 85, both the employer and the employee had to be 'engaged' in the industry in question. The result was, that although the definition of 'industry' in the 1912 Act included a reference to the 'calling' of an employee, in effect that part of the definition could not, in context, apply in s 85 because the employer was not 'engaged' in the calling of the employee. What had to be determined under the 1912 Act was the common enterprise of the employer and employee. See Parker & Son v Amalgamated Society of Engineers (1926) 29 WALR 90; Vilips v Carpenters Union [1962] WAR 27.
The question is whether in the context of the common rule provision in the 1979 Act, s 37, that part of the definition of 'industry' which allows an industry to be identified by reference to the calling of an employee is also inapplicable. In other words, the question is whether an award could 'mention' a calling of employees and then identify an industry to which the award would apply by reference to the calling of employees. The appellant's submission that the context does not permit par (c) of the definition of 'industry' to apply in s 37, requires consideration to be given to the principle which determines when such an examination of context may be undertaken. High Court authority makes the position clear. Advertence to context is always an integral part of the apprehension of the meaning of statute. It is not a device to be held in reserve to resolve only doubt or ambiguity: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Gidaro v Secretary, Department of Social Security (1998) 154 ALR 550, 561 (Burchett J).
It is also necessary to keep in mind two other principles. The first is that in the interpretation of the provision of a written law, a construction which would promote the purpose or object underlying the written law to a construction that would not (s 18 of the Interpretation Act). The second is that courts should not construe an Act in a way which renders words superfluous. All words must be given not only meaning but effect: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 [71].
What then is the purpose of s 37? The purpose is to impose a common rule in circumstances where an award satisfies two requirements or conditions, namely the 'mention' of the calling of employees and secondly, the identification of an industry or industries to which the award is to apply. If the second requirement may be satisfied by repeating the first, then the question is whether the second requirement will in all circumstances be rendered superfluous. The question would also arise as to whether the purpose of s 37 (which is to require two conditions to be satisfied before the award binds and extends to employees who are 'mentioned' and their employers) would be defeated if par (c) of the definition of 'industry' applied. Examples may be found of cases in which courts have interpreted a word in an Act so as to avoid it being synonymous with another word in the same provision on the basis that if it were synonymous, it would be superfluous. See McLean v Kowald (1974) 9 SASR 384, 389 and Commissioner of Taxation v Union Fidelity Trustee Co (1977) 137 CLR 275, 290.
The respondent argued against the suggestion that s 37 would always contain a superfluous requirement if par (c) of the definition of 'industry' applied. Counsel for the respondent gave the example of an award which 'mentioned' a certain calling of employees eg roofing carpenters in an industry identified by the calling of employees (ie the calling of carpenters generally). The respondent's submission must be upheld. It is true that in some circumstances the two conditions, namely the mention of the calling of the employee and the identification of an industry to which the award applies by the same calling may be repetitive, but as the above example shows, this is not always so.
The result is that par (c) in the definition of 'industry' may be applied without defeating the purpose of s 37 and without infringing the rule that all words must be given meaning and effect. No intention appears in the context of s 37 to exclude par (c) of definition of 'industry'.
Does the award in this case identify an industry?
As a result of the conclusion reached above, an award which stated that it applied to employees within the calling of bus drivers of a limited kind in the 'bus driving industry' would satisfy the two conditions required to be satisfied in s 37.
In this case the award states that it applies to 'all bus drivers (including service, tour, charter and school bus drivers) employed in the classifications described in clause 10 … except those workers employed by' the three identified employers.
The award therefore 'mentions' the 'calling' of certain bus drivers; that is, not all bus drivers. That satisfies the first of the two conditions to be satisfied if s 37 is to extend the award to the appellant. However, the award does not expressly state an industry to which the award applies. If it had stated that 'the industry to which the award applies is that of bus driving' then the second condition would have been satisfied. However, the award does not make that express statement.
The question then is, what principle of construction would require a conclusion to be drawn that the award, by implication, states that the mention of the calling of employees as bus drivers of the kind referred to is to be treated also as a statement of the 'industry to which the award applies'. It must be borne in mind that the application of an award will interfere with the freedom of contract which parties to an employment contract would otherwise have. This award, for example, prevents parties from entering into a contract for a wage less then that specified in the award. The common law recognises the right or freedom of contract. This freedom underlies the law of contract. The freedom may not be as unconfined as it was at the time Jessell MR referred to the importance of the public policy in Printing and Numerical Company v Sampson (1875) LR 19 Eq 462, 465, and it may not have the same full scope for operation when an individual worker makes a contract for service with an employer (Lindner v Murdock's Garage (1950) 83 CLR 628, 641 ‑ 642), but the policy nevertheless, remains. The policy was mentioned recently by the High Court in Ringrow v BP Australia Pty Ltd (2005) 224 CLR 656 in the context of an issue about whether a liquidated damages clause constituted a penalty. Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ said:
The law of contract normally upholds the freedom of parties, with no relevant disability, to agree upon the terms of their future relationships. …
Exceptions from that freedom of contract require good reason to attract judicial intervention to set aside the bargains upon which parties of full capacity have agreed. That is why the law on penalties is, and is expressed to be, an exception from the general rule. [31] ‑ [32].
Parties to a contract who have legal capacity will therefore have (putting aside common law equitable and statutory exceptions) a fundamental freedom or right recognised by the common law to determine what their rights and liabilities will be. The law is clear that a statutory abrogation or curtailment of a fundamental freedom or right will not be imputed unless it is clearly manifested by unmistakable and unambiguous language (Coco v The Queen (1994) 179 CLR 427, 437 (Mason CJ, Brennan, Gaudron and Kirby JJ); Puntoriero v Water Corporation (2000) 199 CLR 575 [36] (McHugh J)).
In the interpretation of an award, it is possible in certain circumstances to refer to the log of claims or the decision leading to the making of the award: City of Wanneroo v Holmes (1989) 30 IR 362, 378 (French J) and BHP Billiton Iron Ore v AFMEPKIU (2006) 153 IR 397 [21]. This award was made by Commissioner Halliwell (see Transport Workers Union v DB & B Adams (1980) 60 WAIG 870). In these reasons Commissioner Halliwell referred to the scope clause and said:
Clause 3 - Scope
The difference between the parties here is one of wording, however in the employers' proposed wording appears the phrase 'to workers employed by the respondents'. These words would limit the operation of the award so that 'common rule' would not apply and the Commission discerns no reasons why the award should be so limited. Therefore clause 3 - scope shall read as follows … [The scope clause which is referred to earlier in these reasons was then set out].
At two other places in his reasons for decision, Commissioner Halliwell referred to the 'industry to be regulated by the … award' but did not identify the industry. There is therefore nothing in Commissioner Halliwell's reasons which assists in interpreting s 37.
In the case of Transport Workers Union v Pinnacle Services (2000) 80 WAIG 4402, Industrial Magistrate Cicchini considered a complaint which alleged that there were breaches by the defendant of the award which is in issue in this case. The defendant denied that he was bound by the award (as do the appellants in this case). It was common ground that the respondent in that case was not named as a party to the award (and that is also common ground in this case) and so the question was whether the award bound the employer by virtue of the 'common rule principle set out in s 37(1)'. See page 4402. The Industrial Magistrate noted that the complainant in that case (like the respondent in this case) made alternative submissions about what the industry might be. The complainant in that case identified the industry as either 'the bus driving industry' or 'the bus industry'. The case seems to have been fought on the assumption (but without a finding being made) that the industry was one or the other. The magistrate found that the defendant was engaged in the 'service industry'. The complainant did not allege that the award applied to the 'service industry'. The complainant therefore failed to prove its case.
The matter went on an appeal and in Transport Workers Union v Pinnacle Services Pty Ltd (1999) 79 WAIG 3567, President Sharkey in the Full Bench said:
What the industry is in every case is primarily a question of construction of the award. It may be that the question is not only primarily but finally a question of construction. Some awards, too, as a matter of construction, fail to give the final answer and require, for that purpose, findings of fact to be made. In this case the final answer was and is provided by the award both primarily and finally.
The award applies to an industry identified by and only by the vocation of bus drivers employed in the classifications contained in clause 10 of the award. The classifications contained in clause 10 include tour bus drivers. Mr Downsborough was undoubtedly, on the evidence, a bus driver and, indeed, a tour bus driver.
The construction, therefore, of clauses 3 and 10 of the award provide the final answer. The industry to which the award applies is bus driver. The award applied to Mr Downsborough whose vocation was bus driver in the industry of bus driver and in the classification of bus driver. The award applied to his employer pursuant to s 37(1) of the Act. (3568 ‑ 3569)
The Industrial Magistrate in this case was obliged to follow the Full Bench decision in the Pinnacle Services case and he therefore concluded at 72 of his reasons:
On the evidence Mr Sladen was undoubtedly employed as a tour bus driver for the respondents who were in the business of providing tour and charter bus services. It follows that the award applied to Mr Sladen whose vocation was a bus driver in the industry of bus driver in the classification of bus driver and that the award applied to his employers pursuant to s 37(1) of the IR Act.
The Full Bench in this case noted that the respondent submitted that the Industrial Magistrate was correct to follow the Pinnacle Services case and that the industry to which the award applied was that of bus driver. Although ground 1 of the appeal to the Full Bench was that the Industrial Magistrate wrongly construed not only s 37, but also the award, the Full Bench appeared to concentrate entirely on the construction of s 37 and whether par (c) of the definition of 'industry' applied or not. The Full Bench held that it did and held that ground 1 had therefore not been established. The issue about whether the award identified an industry was not expressly dealt with and although the Full Bench noted the submission by the respondent that the Industrial Magistrate was correct to follow the Pinnacle Services case, the Full Bench did not itself state that this was so other than by perhaps necessary implication from the fact that ground 1 (which raised the same points as ground 1 in this appeal) was dismissed.
I would respectfully disagree with the conclusion reached by the Full Bench in the Pinnacle Services case. The reasons for doing so are set out above, but to restate them briefly, the award did not expressly identify any industry and the abrogation or curtailment of the fundamental right of parties to enter into their own contractual arrangements will not be brought about by implication. The reference to the calling of certain bus drivers (ie not all bus drivers) cannot support an implication that the industry is the whole bus driving industry. In my opinion it is necessary for an award to state expressly the industry to which the award applies if the award is to extend to and bind persons who were not parties to the award proceedings. The award does not expressly identify an industry to which it is to apply.
This award has already resulted in at least two extended pieces of litigation. The scope clause was bound to lead to disputation. The award does not satisfy s 37 and therefore the award does not extend to and bind persons who were not parties to the proceedings in which the award was made. It does not bind the appellants. I would therefore uphold ground 1 insofar as it relates to the construction of the award.
It is therefore not necessary to consider the other grounds. However, if it had been necessary to do so, I would have agreed with Le Miere J's reasons in relation to the other grounds.
I would uphold the appeal, set aside the orders made by the Industrial Magistrate and dismiss the claims brought against both appellants.
LE MIERE J:
Introduction
The respondent alleged that the appellants had contravened or failed to comply with provisions of the Transport Workers (Passenger Vehicles) Award 1978 (WA) (the Award) by not paying their employee Gregory John Sladden, his correct rate of pay and applied to an industrial magistrates court for the enforcement of the provisions. The industrial magistrate found that the appellants, Christine Anne Miles and Richard Glinton Miles and Melrose Farm Pty Ltd, had each committed multiple breaches of the Award, ordered the appellants to pay a penalty for each breach and ordered the appellants to pay to Mr Sladden the amounts by which Mr Sladden had been underpaid. The respondent's claims for prejudgment interest were dismissed.
The appellants appealed to the Full Bench of the Western Australian Industrial Relations Commission from the decision of the industrial magistrates court to order them to pay the penalties and underpayment. The respondent appealed from the decision to dismiss the claim for prejudgment interest. The Full Bench dismissed the appeals by the appellants but allowed the appeals by the respondent and remitted the matter to the industrial magistrate to consider and determine what interest should be awarded.
The appellants now appeal from the decision of the Full Bench.
Background
In December 2000, the business of Milesaway Tours was carried on in partnership by Mr and Mrs Miles. They continued to carry on that business until 31 July 2002 at which time Melrose Farm Pty Ltd took it over. The respondent says that the business provided tour and charter bus services. The appellants say that they conducted a tour business.
Mr Sladden answered an advertisement that Milesaway placed in the Busselton‑Margaret River Times on 7 December 2000. The text of the advertisement was:
Tour Guide Driver
Must have 'F' class licence, Senior First Aid Cert. Casual position involving weekend work. Past applicants need not apply.
(Phone) 97542929 evenings
Milesaway Tours
Mr Sladden had an interview with Mr Miles. He was told the position was 'casual'. Mr Sladden was subsequently offered and accepted the job.
Mr Sladden drove and provided commentary for the Milesaway wine tours. His duties included checking the vehicle and making up a cheeseboard for the wine tour. He also did charters and transfers. Charters were taking people to a destination without commentary. Transfers were the movement of passengers from one point to another. At times Mr Sladden was called in to clean buses and on a couple of occasions he did a brochure run: that is, he drove through the Margaret River wine region dropping off brochures at venues.
When Mr Sladden arrived in the depot after finishing a job, he would telephone the Milesaway office and be informed what he would be doing the next day or the next shift. The rate of pay was the same for every job. It was a flat rate of pay per hour. Mr Sladden said he averaged about 35 hours work per week. During school term he taught music and generally did not work on a Wednesday. His hours would vary from week to week from 15 to 20 hours to around 60 hours. At times he would work more than one shift per day.
Mr Sladden's employment ended in October 2004. In May 2004 he was charged with driving (his own vehicle and not involving his employment) with a blood alcohol content in excess of 0.08%. In July 2004 he was suspended from driving. During the period of suspension Mr Sladden discussed his position with Mrs Miles and was told that insurance premiums would increase because of his conviction. Therefore, if he wanted to drive after his suspension he would be required to pay a $1,000 bond. Mr Sladden then asked for, and was given, a separation certificate. A week by week list of dates and hours worked by Mr Sladden covered the period 22 January 2001 to 20 June 2004, a period of 178 weeks. Mr Sladden did not work at all in 11 of those weeks. In the six weeks from 10 May to 20 June 2004 Mr Sladden only worked two days. Mr Sladden did not always work on the same days but he worked mostly on Thursdays, Saturdays and Sundays and much less often on Wednesdays.
The appeals to this court
There are four appeals before the court. IAC 10 of 2007 is the appeal by Mr and Mrs Miles trading as Milesaway Tours from the decision of the Full Bench dismissing their appeal from the decision of the industrial magistrate ordering them to pay penalties and the underpayment. The grounds of the appeal are:
1.The Full Bench erred in its construction of the scope of the Award in finding that it applies to an industry identified by and only by the vocation of bus drivers employed in the classifications contained in cl 10 of the Award.
2.The Full Bench erred in its construction of the Public Sector Management Act 1994 (WA) and s 98 of the Industrial Relations Act 1979 (WA) (the Act) in finding that the de facto officer doctrine applied to the respondent.
3.The Full Bench erred in its construction of the Award in finding that Mr Sladden was a casual employee.
4.The Full Bench erred in its construction of the Award and s 83 of the Act in finding that a separate breach of the award occurred on each occasion Mr Sladden was paid and that a separate penalty should be imposed for each such breach.
In IAC 9 of 2007, Melrose Farm Pty Ltd trading as Milesaway Tours appeals against the decision of the Full Bench on the same grounds.
In IAC 7 of 2007, Mr and Mrs Miles trading as Milesaway Tours appeal against the decision of the Full Bench that reg 12(4) of the Industrial Magistrates Court (General Jurisdiction) Regulations 2005 (WA) was a valid exercise of the Governor's powers under s 113(3) of the Act on the ground that:
The Full Bench erred in its construction of sections 83, 83A and 113(3) of the Act in finding that a regulation providing for an award of interest was 'for and incidental to it's [the Industrial Magistrates Court] powers and jurisdiction under this Act' to order an employee to be paid the amount of any underpayment.
In IAC 8 of 2007, Melrose Farm Pty Ltd appeals against the same matter on the same ground.
Ground 1
The appellants submit that the Full Bench erred in finding that the Award applied to Mr Sladden's employment. Section 37(1) of the Act provides:
An award has effect according to its terms, but unless and to the extent that those terms expressly provide otherwise it shall, subject to this section -
(a)extend to and bind -
(i)all employees employed in any calling mentioned therein in the industry or industries to which the award applies; and
(ii)all employers employing those employees;
and
(b)operate throughout the State, other than in the areas to which s 3(1) applies.
Clause 3 - Scope of the Award provides:
This Award shall apply to all bus drivers (including Service, Tour, Charter and School Bus Drivers) employed in the classifications described in clause 10 - wages of this Award, except those workers employed by the Western Australian Government Railways, the Eastern Goldfields Transport Board and the Metropolitan (Perth) Passenger Transport Trust.
The appellants are not a named respondent to the Award. The Full Bench found that the Award extends to, and binds, the appellants in relation to the employment of Mr Sladden because Mr Sladden was employed in a calling mentioned in the Award in the industry to which the Award applies. The Full Bench found that the award applies to the industry of bus drivers.
The appellants submit that the Full Bench erred in construing the definition of industry in the Act to find that a vocational award is possible. Furthermore, the appellants submitted that, properly construed, the Award cannot be said to be a vocational award even if one was possible. The appellants submit that in the absence of evidence as to the industries carried on by the named respondents to the Award, the Full Bench erred in finding that the Award applied to the appellants.
The appellants submit that the finding that a vocational award is possible and that the Award applies to the calling or vocation of bus driver is contrary to authority. In Australian Shipbuilding Industries (WA) Pty Ltd v Maritime Workers' Union of Western Australia (1977) 57 WAIG 458 (the Australian Shipbuilding Industries case), Burt CJ said:
A vocational award [is] one applicable by reason of its common rule effect to all employers of workers of the classifications referred to in it … [and] is [a] thing unknown to the law. Every award must relate to an industry, either in terms or by reference to the industry to which the employer's parties to it are engaged. Every award must state the 'callings' of the workers bound by it and expressly or by implication the industry, in the sense of the business of the employer to which it relates (458).
The issue on this appeal concerns the meaning of 'industry' in s 37 of the Act. 'Industry' is defined in s 7 of the Act as follows:
'Industry' includes each of the following -
(a)any business, trade, manufacture, handicraft, undertaking or calling of employers;
(b)the exercise and performance of the functions, powers, and duties of the Crown and any Minister of the Crown, or any public authority;
(c)any calling, service, employment, handicraft or occupation or vocation of employees;
whether or not, apart from this Act, it is, or is considered to be, industry or of an industrial nature, and also includes -
(d)a branch of an industry or a group of industries.
If 'industry' in s 37 has the meaning defined in s 7 then an award may be a vocational award and the Award may apply to the industry of bus driver. The appellants submit that the word 'industry' in s 37 is used in its ordinary meaning not in its defined meaning. The appellants submit that the ordinary meaning of 'industry' is relevantly limited to the business of the employer and does not extend to the calling or vocation of workers.
All definitions of words used in legislation are to be read either expressly or impliedly as subject to the qualification 'unless the contrary intention appears': Pearce DC and Geddes RS, Statutory Interpretation Australia (6th ed, 2006) [6.62]. In this case, the qualification appears expressly in s 7 of the Act. The appellants say that a contrary intention appears in s 37 of the Act.
A useful statement of the approach to be adopted when considering whether there has been an intention to use a word in other than its defined sense is provided by Duperouzel v Cameron (1973) WAR 181 where Burt J said:
As by the Act the defined expression is to carry that meaning 'unless a contrary or other intention appears' the possibility always exists that an intention that it should bear a different meaning may appear, and should it appear, the definition must be departed from so as to accommodate that intention. But the contrary or other intention must, or so it seems to me, be found within the particular context in which the defined word appears, and when found, the definition is then departed from for the purposes of that particular provision only. It cannot be right to search through the Act to find a number of provisions not including the relevant provision in which the intention to depart from the definition appears and having found them, then to say that the contrary intention appears for all the purposes of the Act and hence for the purposes of the relevant provision.
Or in other and more particular words, one cannot say that because an intention appears in a number of sections of the Liquor Act (and whether it does so appear is not for me to decide), that the expression 'licensed premises' be understood to include a boat the subject of a packet license it therefore follows that it is used in that sense in, so that the statutory definition is not applicable to, s 126(1)(a).
What must appear is a contrary or other intention as to the meaning of the expression as it is used in that section, and as there is nothing to be found within that section which indicates any such intention the words as there appearing must be read with the defined meaning (182 - 183).
In this case it is necessary to consider whether the text and context of s 37 show an intention that the word 'industry' should not bear its defined meaning. That does not mean that consideration is confined to s 37 alone. Other provisions of the Act may throw light on the meaning of 'industry' in s 37. For example, an intention may appear in another section of the Act that the word 'industry' does not include vocation or calling of a worker. However, it does not follow from this alone that the statutory definition in s 7 is not applicable to s 37 of the Act.
In Deputy Commissioner of Taxation (NSW) v Mutton (1988) 79 ALR 509, 512 Mahoney JA said:
There is, of course, no simple formula for determining what is a 'contrary intention' for this purpose. Such an intention may be displayed where the definition provides that one thing shall be done and the Act or section in question provides that another shall be done: see eg Bennett v Minister for Public Works (NSW) (1908) 7 CLR 372 at 385; R v Brewer (1942) 66 CLR 535 at 550. But it is not limited to such a case. A definition section and its application must be considered in the context of the Act as a whole: see Lennon v Gibson & Howes Ltd (1919) 26 CLR 285 at 289‑90; Stevens v Colonial Sugar Refining Co Ltd (1920) 28 CLR 330 at 340 (the 'commanding effect of the general scheme of the Act'); Blue Metal Industries Ltd v RW Dilley [1970] AC 827 at 846. A contrary intention may be inferred from a particular provision if, were the definition to be applied, the provisions of or the procedure established by the section would not appropriately work: Brown v Brook (1971) 125 CLR 275 at 276, 292; where, if the definition applied, it would require a lender to take specified steps in respect of his 'business of money‑lending' where he had no such business. It is, I think, not necessary that what is laid down by the section in question be impossible of operation; it is sufficient if the result of the application of the definition to a section results in the operation of the section in a way which clearly the legislature did not intend. Thus, in Dealex Properties Ltd v Brooks [1966] 1 QB 542 at 551, Harman LJ referred to the 'fearful confusion' that would follow the application of the statutory definition.
In the end, what the court does when it decides whether there is a 'contrary intention' is to decide whether it was the intention of the legislature that the statutory provision as to interpretation or definition should apply to the particular section: see Gibb v FCT (1966) 118 CLR 628 at 635. The legislative intention may, perhaps, be more easily seen where the function of the interpretation section is, by providing a simple verbal formula, to avoid the repetition of a 'multiplicity of verbiage': or where the statutory definition adds to or subtracts from what, apart from the definition, would be the meaning of the particular word in the statutory command: see eg R v Brewer (1942) 66 CLR 535; YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395.
The appellants' principal submission was that a contrary intention is disclosed by decisions of this court concerning predecessors to s 37 of the Act.
Comments made by judges on the construction of the predecessor to s 37, while they may offer help and guidance, cannot absolve the court from the duty to exercise an independent judgment: Ogden Industries Pty Ltd v Lucas (1968) 118 CLR 32 where Lord Upjohn said:
[I]n a common law system of jurisprudence which depends largely upon judicial precedent and the earlier pronouncement of judges, the greatest possible care must be taken to relate the observation of a judge to the precise issues before him and to confine such observations, even though expressed in broad terms, to the general compass of the facts before him, unless he makes it clear that he intended his remarks to have a wider ambit. It is not possible for judges always to express their judgments so as to exclude entirely the risk that in some subsequent case their language may be misapplied and any attempt at such perfection of expression could only lead to the opposite result of uncertainty or even obscurity as regards the case in hand.
These general principles are particularly important when questions of construction of statutes are in issue.
It is quite clear that judicial statements as to the construction and intention of an Act must never be allowed to supplant or supersede its proper construction and courts must beware of falling into the error of treating the law to be that laid down by the judge in construing the Act rather than found in the words of the Act itself.
No doubt a decision on particular words binds inferior courts on the construction of those words on similar facts but beyond that the observations of judges on the construction of statutes may be of the greatest help and guidance but are entitled to no more than respect and cannot absolve the court from its duty of exercising an independent judgment (39).
The court must be particularly careful in considering judicial statements as to the construction and intention of the predecessors to s 37 of the Act. The Act is the most recent in a line of enactments providing for settlement of disputes affecting employment. Each enactment has dealt with a similar subject matter. Each has contained a definition of 'industry' and a 'common rule' provision: that is, a section to the effect that an award shall bind employers and employees engaged in any industry to which the award applies. However, the scope and subject matter of the predecessors to the Act, as well as the previous definitions of 'industry', and the common rule sections are different. To the extent that any assistance may be derived from considering earlier authorities it must be the reasoning in those authorities that may be of assistance rather than the outcome of those cases.
The appellant referred to Parker & Son v Amalgamated Society of Engineers (1926) 29 WALR 90, 92 where Burnside J said:
The word 'industry' is used in the Act in many ways … The object of the legislature was to enable agreements to be so made as to ensure that the interests of persons mutually engaged would be protected or given furtherance to … [T]he common object which it is sought to obtain by the combined efforts of the employer and worker indicates the industry in which they are engaged. If that object be the making of bricks, then that industry is that of brick making, and that is the industry to which the agreement relates. Unless that common object be the determining factor, then it is impossible to define the industry to which the agreement relates.
In his annotations to the Industrial Arbitration Act 1912 ‑ 1949 (1950) Mr FTP Burt said of Parker's case:
This decision reversed the tendency noticeable in the decisions to construe the word 'industry' as used in this section, as the vocation of the worker. The test to be applied in every case is to ascertain the interests of the persons mutually engaged in the industry, and in every case the parties to the agreement have to be looked to to ascertain what are the mutual interests of these parties (47).
Parker's case was concerned with an industrial agreement made under the Industrial Arbitration Act 1912 (WA) (the 1912 Act). Section 42 of the 1912 Act empowered the Court of Arbitration to declare that any industrial agreement shall have the effect of an award and be a common rule of any industry to which it relates. The provision provided that upon the making of such a declaration the agreement shall become binding on all employers and workers 'engaged at any time during its currency in any such industry …'. That is, the agreement became binding on all employers engaged in the industry to which the agreement related. That is very different from s 37 of the Act. Section 37 of the Act does not bind only employers engaged in the specified industry but extends to all employers employing employees employed in any calling mentioned in the award in the industry to which the award applies. I find Parker's case and other cases that followed it to be of little assistance in construing s 37 of the Act.
In the Australian Shipbuilding Industries' case the respondent union made a number of complaints that the appellant had committed breaches of the Ship Painters and Dockers Award by failing to pay an employee, Unkovich, in accordance with that award. The appellant admitted that it was an employer bound by that award but argued that it was also bound by the Metal Trades Award: the appellant submitted that because Unkovich was employed in a calling covered by that award it should be held that the binding effect of the Ship Painters and Dockers Award and its application to Unkovich was displaced. The appellant further submitted that the Metal Trades Award was an industry award and that the Ship Painters and Dockers Award was a vocational award and that there was a principle that if two awards, one industrial and one vocational, contain inconsistent provisions purporting to bind an employer with respect to a particular worker then the employer would be bound by the industrial award and not by the vocational award. Burt CJ held that the appellant could obey both awards by paying the worker as required by the award conferring the greater benefit. It was therefore unnecessary to consider whether the appellant was bound by the Metal Trades Award in relation to the employment of Unkovich. Nevertheless, Burt CJ made the remarks set out earlier in this judgment to the effect that a vocational award was unknown to the law.
The statement of Burt CJ that a vocational award is a thing unknown to the law was not necessary for the disposition of that case and was merely obiter dicta. Burt CJ failed to state the reasoning underlying his dicta. The dicta of the Chief Justice must be understood in the context of the terms of the 1912 Act.
The jurisdiction of the Western Australian Industrial Commission under the 1912 Act as at 1977 was conferred principally by s 61. That section provided that the Commission had cognisance of and power to enquire into any industrial matter or industrial dispute in any industry and in respect of the industry may, on any reference or application to it, make an order or award fixing, limiting, determining or declaring certain specified matters. The 1912 Act was repealed and replaced by the Act, a completely new Act, which came into operation in 1980. The principal jurisdiction of the Commission was conferred on it by s 23 of the Act which is materially different from s 61 of the 1912 Act. Section 23(1) provides that, subject to the Act, the Commission has cognisance of and authority to enquire into and deal with any industrial matter.
The appellants also rely upon University of Western Australia v University of Western Australia Academic Staff Association (1979) 59 WAIG 909 (the University of Western Australia case). Mr McCorry, who appeared for the appellants, referred to the statement of Smith J at (919) that an examination of earlier cases showed invariably that it had been decided that the industrial quality of a matter or dispute may derive either from the industrial nature of the activity carried on by the employer or from the essentially industrial character of the work performed by the employee. At (922) Smith J said that the definition of the word 'industry' in the Act was not exhaustive and that in the construction of the Act such word and in particular subparagraph (b) of the definition should not be given a meaning which has no regard to industry in its normal connotation. His Honour said that the jurisdiction of the Commission pursuant to s 61(i) of the 1912 Act to deal with industrial matters or industrial disputes derived either from the industrial nature of the activity carried on by the employer or from the essentially industrial character of the work performed or to be performed by the employee. His Honour held that a dispute between the university and the union as to the terms and conditions of employment of the university's academic staff did not invoke the jurisdiction of the Commission pursuant to s 61 of the Act.
The issues in the case did not concern whether the Commission had power to make a vocational award but rather whether the undertaking of the university and the work performed by its academic staff were in their nature industrial. The Industrial Appeal Court held that neither the university nor the members of its academic staff were engaged in an industry within the meaning of the 1912 Act: hence, any dispute between the parties as to the terms and conditions of employment was not an industrial dispute and did not enliven the jurisdiction of the Commission under s 61 of the 1912 Act.
Brinsden J stated that the rival contentions as to the meaning of the word 'industry' in the 1912 Act were as follows:
The respondent contends that the meaning is to be given the wide definition favoured by O'Connor J and Griffiths CJ in the Jumbunna Coal Mine case (Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309), that is that it applies to employment of any kind so long as there is a master and servant relationship. The appellant on the other hand contends that the word should be given the same meaning as given to it by the High Court in Federated State School Teachers' Association of Australia v Victoria (1929) 41 CLR 569. That case, of course, in the majority judgment at (574), rejected the interpretation of the word based solely on the relationship of employer and employee as being too wide, while on the other hand the restriction of the phrase 'to employment by manual labourers' was rejected as too narrow. The majority tested the matter by seeing whether the State Education systems of the two States involved in litigation, bore any resemblance to ordinary trade, business or industry and came to the conclusion when looked at from the activities of the State, as well as from the activities of the teachers, the carrying on of the State Education systems could not constitute an industry. In rejecting the view expressed by O'Connor J and Griffiths CJ as being too wide, the majority at (574) remarked that that view ignored the use of the word 'industrial' in the composite expression 'industrial dispute' in the Constitution (916).
Brinsden J considered the terms of relevant provisions of the 1912 Act, most of which are not found in the Act or whose equivalent provisions in the Act are in different terms. Brinsden J said that there was nothing in the 1912 Act which required the word 'industry' to be interpreted in any way different from the interpretation given to the word in the Conciliation and Arbitration Act1904 (Cth). His Honour decided that having regard to the interpretation of the word 'industry' in the Federated State School Teachers' Association of Australia v Victoria (1929) 41 CLR 569 (the School Teachers' case), Ex Parte Professional Engineers Association (1959) 107 CLR 208 (the Professional Engineer's case) and Pitfield v Franki (1970) 123 CLR 448, the university was not carrying on an industry within the meaning of the 1912 Act.
Smith J stated that he agreed generally with the reasoning of Brinsden J. Smith J said that in interpreting the word 'industry' in the 1912 Act the Court should follow the decisions of the High Court in interpreting the words 'industry' and 'industrial disputes' in the Commonwealth Act. Wallace J followed the decision of the High Court in the School Teachers' case, the Professional Engineers case and Pitfield v Franki which gave a restricted meaning to the words 'industry' and 'industrial disputes' in the Commonwealth Constitution and the Conciliation and Arbitration Act (Cth) 1904.
The first step in the School Teachers' case, confirmed by Pitfield v Franki, was that the words 'industry', as defined by s 4(1) of the Commonwealth Act, and 'industrial' where it appeared in the Commonwealth Act, had to be read in the light of the meaning of the expression 'industrial disputes' in the Constitution. The second step was that that Constitutional expression reflected the narrow concept of industry which had been favoured by Isaacs and Rich JJ in Federated Municipal and Shire Council Employees Union of Australia v Melbourne Corporation (1919) 26 CLR 508 (the Municipalities case). That narrow concept of industry was restricted to activities which involved the co‑operation of capital and labour in the production and distribution of goods and in the provision of services necessary or incidental to such activities. In the result the definition of 'industry' in the Commonwealth Act as it then stood, though it included 'any calling, service, employment, handicraft, or industrial occupation or avocation of employees, on land or water', was confined by the Constitutional concept of 'industrial disputes' and was, accordingly, taken to refer to activities of an industrial nature: Re Lee; Ex Parte Harper (1986) 160 CLR 430, 445.
The era in which the High Court gave that restricted meaning to 'industry' and 'industrial disputes' was brought to an end by the decision in R v Coldham; Ex Parte Australian Social Welfare Union (1983) 153 CLR 297 (the Social Welfare Union case). In the Social Welfare Union case the High Court said that the correct approach to the construction of the expression 'industrial disputes' in the Constitution was that expressed by Higgins J in the Municipalities case reflecting the view earlier expressed by O'Connor J in Jumbunna. The words are not a technical or legal expression. They have to be given their popular meaning ‑ what they convey to the man in the street. The court rejected any notion that the adjective 'industrial' imports some restriction which confines the Constitutional conception of 'industrial disputes' to disputes in productive industry and organised business carried on for the purpose of making profits.
In Re Lee; Ex Parte Harper the High Court held that neither the School Teachers' case nor Pitfield v Franki should now be followed because the Social Welfare Union case has undermined the very foundations on which the reasoning in those two decisions was based (448).
In so far as the reasoning in the University of Western Australia case is based upon the meaning of the words 'industry' and 'industrial disputes' in the School Teachers' case and Pitfield v Franki, it should no longer be followed. The Social Welfare Union case has undermined the very foundation on which that reasoning was based.
In so far as the University of Western Australia case was decided on the basis of the terms of the 1912 Act, that Act was, as I have discussed, materially different from the Act. Furthermore, the Parliament amended the 1912 Act by the Industrial Arbitration Act Amendment Act 1979 (WA) in response to the University of Western Australia case. In his Second Reading Speech the Minister for Labour and Industry, Mr O'Connor, said that in coming to its conclusions in the University of Western Australia case the Industrial Appeal Court's decision made reference to other areas of employment which had been assumed to come within the jurisdiction of the Commission, but that the findings of the court cast grave doubts on the Commission's jurisdiction over employees such as police officers, firemen and others. Mr O'Connor said:
The amending Bill, therefore, will exclude from the jurisdiction of the Western Australian Industrial Commission the academic staff of the universities and the other institutions of advanced education.
The amending Bill will clarify and confirm the Industrial Commission's jurisdiction over other areas of the workforce which would otherwise be excluded within the meaning of the decision of the appeal court; for example, police, firemen and prison officers.
The definitions of 'industry' and 'worker' were amended. The definition of 'worker' was amended to exclude any person who was a member of the academic staff of a post‑secondary institution. The definition of 'industry' in s 6 was amended by inserting after (c) of the definition the words:
whether or not, apart from this Act, it is, or is considered to be, industry or of an industrial nature, and also includes -
(d)a branch of an industry or a group of industries;
and expressions cognate with 'industry' shall bear correlative meanings.
It appears that one intention of the Industrial Arbitration Act Amendment Act 1979 (WA) was to overcome the result of judicial interpretation of 'industry' in sections of the Act to a more limited meaning than the defined meaning.
The Act re‑enacted the definition of 'industry' in substantially the same terms as the definition contained in the 1912 Act after the 1979 amendment. However, as I have said, other sections of the Act differ from the provisions of the 1912 Act. The dicta and reasoning in the judgments in the University of Western Australia case, the Australian Shipbuilding Industries case and the earlier cases referred to by the appellants turn upon the particular statutory provisions that they dealt with and do not support the appellants' argument in this case.
It might be argued that s 37 shows a 'contrary intention' in that if the definition of 'industry' is substituted for that word in s 37(1) then the section is repetitive and the limitation referring to the industry to which the award applies would be redundant. Section 37(1) would then read:
An award has effect according to its terms, but unless and to the extent that those terms expressly provide otherwise it shall, subject to this section ‑
(a)extend and bind -
(i)all employees employed in any calling mentioned therein in [(a) any business, trade manufacture, undertaking or calling of employers; (b) the exercise and performance of the functions, powers, and duties of the Crown and any Minister of the Crown, or any public authority; (c) any calling, service, employment, handicraft, or occupation or vocation of employees or (d) a branch of any industry or group of industries] to which the award applies; and
(ii)all employers employing those employees.
and
(b)operate throughout the State, other than in the areas to which section 3(1) applies.
In relation to an award which applies to an industry defined by the calling or vocation of employees the words 'industry or industries to which the award applies' might be redundant. However, where an award relates to an industry constituted by the business, trade, manufacture, undertaking or calling of employers the words 'in the industries to which the award applies' will add a further qualification to the class of employees to which the award extends.
In an endeavour to reduce the size of legislation by avoiding the repetition of common provisions, a drafter of a statute will usually include in that Act a section which sets out the definition of particular words that are used frequently in the Act. A court should not be too ready to find a 'contrary intention' because to do so would frustrate the purpose of including a definition in the Act. The authors of Statutory Interpretation in Australia, in the course of discussing the application of defined terms to the derivatives of the defined term [6.61], suggest that the onus of showing that the context may indicate that the defined meaning has not been followed should be on the party asserting it. The authors say that if the approach suggested were adopted, some greater certainty in the prediction of the meaning of an Act might be obtained.
I do not infer that the result of the application of the definition of 'industry' to s 37 of the Act results in the operation of the section in a way which the legislature did not intend.
I do not infer from s 37 an intention to exclude the s 7 definition of 'industry'. Upon its proper construction the scope clause of the Award applies to employees employed in the calling of bus driver in the industry of bus driver and to employers of those employees. Ground 1 of the appeal is not made out.
Ground 2
An application for the enforcement of an award may be brought by, amongst others, an industrial inspector. The respondent brought the proceedings before the industrial magistrate in his capacity as an industrial inspector. The appellants contended that the respondent had not been validly appointed as an industrial inspector. Neither the industrial magistrate nor the Full Bench decided whether or not the respondent was validly appointed as an industrial inspector. The industrial magistrate found that even if the appellants were to be successful in their contention that the respondent was not validly appointed as an industrial inspector, the doctrine of de facto officers would operate so that his acts in bringing the claims could not be challenged. The Full Bench found that it was at least arguable that the respondent was validly appointed as an industrial inspector but that in any event even if the appellants succeeded in establishing that the appointment was irregular and the presumption of validity rebutted, the industrial magistrate's conclusion on the de facto officer doctrine was not in error.
The de facto officer doctrine is a principle of the common law that where an office exists but the title to it of a particular person is defective, the acts of a de facto public officer done in apparent execution of his office cannot be challenged on the ground that he has no title to the office: G J Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503, 525 (McHugh JA). The doctrine requires that there be a de jure office: that is, one that exists in law, and that the challenged actions be within the powers of that office. The official must have the reputation of being the officer he assumes to be.
The Full Bench found that the office of industrial inspector is one which exists in law under s 98 of the Act. The appellants submit that the Full Bench erred in so finding. The appellants' argument is as follows. Section 7 defines 'industrial inspector' to mean an industrial inspector appointed pursuant to the Act. Section 98 of the Act provides that industrial inspectors may be appointed under and subject to pt 3 of the Public Sector Management Act 1994 (WA) (the PSM Act) to perform the functions conferred on them by the Act or any other written law. The effect of s 36 and s 64 of the PSM Act is that the employing authority must first create the office and then appoint some person to occupy that office. The respondent's sole claim to de facto officer status rests on him being given an industrial inspector's identity card in accordance with a process that does not amount to the creation of an office of industrial inspector under the PSM Act. The issuing of an industrial inspector's identity card does not create a de jure office of industrial inspector and the respondent cannot rely on the de facto officer doctrine to validate his actions.
In 'De Facto Officers' (1994) 2 Australian Journal of Administrative Law 5 Professor Enid Campbell wrote:
The following conditions are essential for the operation of the doctrine. The office occupied and exercised must be an office de jure (that is, one which exists in law) and the acts of the de facto officer must have been within the scope of the authority of an officer de jure. (The special problems which have arisen when the statute creating the office is unconstitutional will be discussed presently.) And, all importantly, the person claimed to be a de facto officer must have the reputation of being an officer de jure or the defect in her or his title must be unknown to members of the public (5).
At (7) Professor Campbell wrote:
To date, the de facto officer doctrine has been applied only in cases in which the acts in question are those which would be valid if done by a lawful occupant of an office, an office being a position which exists separately from the person who holds it. The concept of an office is not precise but it seems to entail, at the very least, an established position, occupancy of which carries with it ascertainable powers and duties: Edwards (Inspector of Taxes) v Clinch [1980] 3 WLR 521.
In Edwards (Inspector of Taxes) v Clinch [1980] 3 WLR 521 the respondent, a chartered civil engineer, was one of a panel of persons whom the Department of the Environment invited from time to time to hold public local enquiries into matters for which the Secretary of State for the Environment was responsible. When he accepted an invitation to undertake such an enquiry he would receive a daily fee. The Court of Appeal of England and Wales held that the respondent did not hold an office for the purposes of the Income and Corporations Taxes Act 1970 (UK). The essence of the judgments of the members of the Court of Appeal is that considering all the characteristics of the duties carried out by the respondent when appointed to conduct an enquiry and because each such appointment was personal to him and was an appointment to a post which, unlike the normal connotation of the word 'office', had neither an independent existence nor continued separate from the appointee, he could not be said to hold an 'office' within the meaning of the statute.
In this case, the appellants raise the opposite argument. In essence, the appellants say that the office of industrial inspector does not exist separately from each appointment to the office because the process of appointment involves the creation of a particular position and then the appointment of a person to that position so created.
I do not accept the appellants' argument. The argument, if correct, has the consequence that the defect in the process of appointment of a person to the office of industrial inspector prevents the office coming into existence and hence the doctrine cannot be relied upon to overcome the defect in the appointment process. That would defeat the purpose of the doctrine. The office of industrial inspector existed for the purposes of the doctrine. The office of industrial inspector is a lawful office by reason of the provisions of the Act. Section 98(1) provides that industrial inspectors may be appointed under and subject to pt 3 of the PSM Act to perform the functions conferred on them by the Act. Section 98 sets out the functions and powers of an industrial inspector.
Even if ground 2 of the appeal was made out I would confirm the decision of the Full Bench. Section 90(3a) of the Act provides:
If any ground of the appeal is made out but the court is satisfied that no injustice has been suffered by the appellant or a person who is a member of or represented by the appellant, the court shall confirm the decision the subject of appeal unless it considers that there is good reason not to do so.
If the appellants' other grounds of appeal fail then the finding of the industrial magistrate that the appellants contravened the provisions of the Award will have been confirmed. There is no error or defect in that determination. The only defect is a formal defect in the process taken by the department to appoint the respondent as an industrial inspector. That in no way affects whether or not, as a matter of fact and law, the respondent contravened the provisions of the Award. In those circumstances no injustice would be done to the appellants in confirming the decision of the Full Bench. If the respondent was not properly appointed as an industrial inspector the defect was in the administrative steps required to be taken to perfect the appointment. There was no illegality or impropriety. There is no good reason not to confirm the decision of the Full Bench.
Ground 3
Ground 3 is that the Full Bench erred in upholding the finding of the industrial magistrate that Mr Sladden was employed as a casual employee. The ground of appeal asserts that the Full Bench, in construing the nature of casual employment under the Award and concluding that Mr Sladden was a casual employee, failed to have regard to the definition of casual employee implied into the Award by the Minimum Conditions of Employment Act 1993 (WA) (the MCE Act) and the repeal of the definition in 2006: therefore, the reasons took into account irrelevant considerations ‑ namely the 'increased casualisation of the workforce' ‑ as a basis for reviewing a construction found to have been the correct approach in the same award less than 12 months previously.
Clause 14(5) of the Award defines 'casual worker' to mean a worker engaged and paid as such.
At the relevant time the MCE Act provided in s 3(1):
'Casual employee' means an employee who is employed on the basis that -
(a)the employment is casual; and
(b)there is no entitlement to paid leave,
and who is informed of those conditions of employment before he or she is engaged.
Section 5 of the MCE Act provides that the minimum conditions of employment extend to and bind all employees and employers and are taken to be implied, amongst other things, in any award.
Sections 19, 23, 30 and 31 of the MCE Act prescribe minimum conditions of employment in relation to paid sick leave, paid annual leave and entitlement to pay for public holidays. In each case the statutory provision provides that a casual employee is not entitled to the minimum condition specified.
The appellants submit that by reason of the definition of 'casual employee' and s 5, s 19, s 23, s 30 and s 31 of the MCE Act, the statutory definition of 'casual employee' is taken to be implied into awards. That is a statement that does not follow logically from what preceded it.
The MCE Act prescribes minimum conditions of employment for employees other than those who are casual employees in the sense defined by the MCE Act. The MCE Act also prescribes minimum conditions of employment for those persons who are casual employees within the meaning of the MCE Act. An award may prescribe conditions of employment for a different class of persons than those falling within the definition of 'casual employee' in the MCE Act and may call those persons 'casual employees'. The inclusion of such a provision in an award does not affect the obligation of the employer to comply with the requirements of the MCE Act. However, that does not mean that the definition of 'casual employee' in the MCE Act is to be imported into the Award.
In so far as this ground of appeal asserts that the Full Bench failed to have regard to the definition of 'casual employee' implied into the Award by the MCE Act it is misconceived. The MCE Act does not imply the definition of 'casual employee' into the Award. The MCE Act implies into the Award the minimum conditions of employment. The minimum conditions of employment are defined by s 3 of the MCE Act. The definition of 'casual employee' in the MCE Act is relevant to the content of the minimum conditions of employment in the MCE Act, but is not itself a minimum condition of employment and is not itself implied into the Award.
The ground of appeal further argues that the Full Bench erred in reviewing the approach to characterising casual employment put forward by another Full Bench in Metals and Engineering Workers Union v Centurion Industries Ltd (1996) 76 WAIG 1287 (Centurion Industries).
In Centurion Industries the Full Bench said that the parties could not by the use of a label make the relationship something different to what in fact it is. The Full Bench said:
The concept of casual employment within the common law of employment untrammelled by an award prescription is generally taken to connote an employee who works under a series of separate and distinct contracts of employment entered into for a fixed period to meet the exigencies of particular work requirements of an employer rather than under a single and ongoing contract of indefinite duration (1288).
The Full Bench then set out certain indicia relevant to determining the nature of the relationship.
In Love Bus and Taxi Service v Zucchiatti (2006) WAIRC 05758 the Full Bench followed its earlier decision in Centurion Industries. In the award considered in that case the definition of casual employee referred to a worker engaged and paid as such. The Full Bench said that the reference to the engagement of the employee directs attention to the basis upon which the employee was employed as a matter of fact and law. It does not simply direct attention to the label placed upon the status of the worker by the parties. The Full Bench said that the approach to determining whether employment is casual set out in Centurion Industries had been reaffirmed in subsequent decisions of the Full Bench. That approach is to examine relevant indicia to ascertain the substance of the contractual arrangement as a matter of fact and law.
In Australian law, the expressions 'casual employee' or 'casual employment' are expressions with no fixed meanings: Doyle v Sydney Steel Co Ltd (1936) 56 CLR 545, 551 (Starke J) 555 (Dixon J) 565 (McTiernan J); Australasian Meat Industry Employees Union v Sunland Enterprises Pty Ltd (1988) 24 IR 467, 473 (Gray J); Ryde‑Eastwood Leagues Club Ltd v Taylor (1994) 56 IR 385; Reed v Blue Line Cruisers Ltd (1996) 73 IR 420, 425 (Moore J).
In Reed v Blue Line Cruisers Ltd the issue before Moore J was whether Reed was a casual employee as that expression appears in reg 30B of the Industrial Relations Regulations (Cth). Having observed that 'casual employee' has no fixed meaning in Australian domestic law, Moore J went on to consider the characteristics of casual employment. His Honour said:
A characteristic of engagement on a casual basis is, in my opinion, that the employer can elect to offer employment on a particular day or days and when offered, the employee can elect to work. Another characteristic is that there is no certainty about the period over which employment of this type will be offered. It is the informality, uncertainty and irregularity of the engagement that gives it the characteristic of being casual (425).
In Hamzy v Tricon International Restaurants [2001] FCA 1589; 115 FCR 78 the Full Court of the Federal Court said at [38] that the essence of casual employment is the absence of a firm advance commitment as to the duration of the employee's employment or the days (or hours) the employee will work, but that is not inconsistent with the possibility of the employee's work pattern turning out to be regular and systematic.
There is no one definitive test to distinguish between casual and permanent employees. There are several features characteristic of casual employment. These were discussed by Acting President Ritter, with whom the other members of the Full Bench agreed, in the course of his reasons. The essence of casual employment is the absence of a firm advance commitment as to the duration of the employee's employment or the days (or hours) the employee will work. It is not a necessary characteristic of casual employment that the employee work under a series of separate and distinct contracts of employment each entered into for a fixed period.
The Acting President also had regard to the Award as a whole in determining the meaning of 'casual worker' as defined by cl 14(5) of the Award ‑ that is, a worker engaged and paid as such. Clause 14(6) provides that casual hands are to be notified at the end of each day if their services are not required the next day. Clause 14(4) defines a part time worker to mean a worker regularly employed to work a lesser number of hours per week than 38. By inference, a feature of casual work under the Award is irregularity of hours of work.
The Acting President determined that having regard to the several features characteristic of casual employment and the particular provisions of the Award, Mr Sladden was a casual worker within the definition of the Award.
The appellants submit that the Full Bench erred by not following its earlier decision in Centurion Industries where it said that the concept of casual employment is generally taken to connote an employee who works under a series of separate and distinct contracts of employment entered into for a fixed period rather than under a single and on‑going contract of indefinite duration.
The Acting President found that there was a continuing contract of employment between Mr Sladden and the appellants from the commencement of his employment until its termination. That finding does not of itself mean that Mr Sladden was not a 'casual worker'. There may be a continuing contract one term of which is that the employer can elect to offer work on a particular day or days and when offered the employee can elect to work or not. Such a contract might create a casual employment relationship.
Having considered the Award definition of casual worker, the common law concept of casual employment, other relevant provisions of the Award and previous decisions of the Full Bench, including Centurion Industries, the Acting President concluded that Centurion Industries is not an authority which should be followed in this case in deciding what the Award definition means nor the method for determining whether a worker is 'casual'. The Acting President did not accept the contention that if there was 'on‑going employment' or a 'continuing contract' Mr Sladden could not for that reason be a casual worker under the award.
I have reservations about the correctness of the Acting President's finding that there was a continuing contract in this case. However, it is not necessary to decide whether the Acting President was right in that finding. The Acting President found that having regard to the features of Mr Sladden's employment he was a casual worker. The Acting President summarised his reasons for that conclusion:
This is because he was to work as and when required and there was an insufficient regularity about the employment for him to be a part‑time worker under the award. His work at that time fitted the description given by Milesaway to the job. Up until September 2001 there was intermittence, irregularity and uncertainty in the employment of Mr Sladden. There was in the terms of the Full Court of the Federal Court in Hamzy, an absence of a firm advance commitment as to the duration of his employment for the days or hours Mr Sladden would work. As stated in McLaren, the parties did not intend nor did the employment entail a regular and pre‑determined attendance [218].
The Acting President did not err in the construction or interpretation of the provisions of the Award relating to casual employment. The Acting President was not required as a matter of law to find that it is a necessary characteristic of a casual worker under the Award that the worker work under a series of separate and distinct contracts of employment each entered into for a fixed period. The Full Bench did not err in its construction of the Award in finding that Mr Sladden was a casual employee. This ground of appeal is not made out.
Ground 4
Ground 4 is that the Full Bench erred in its construction of the Award and s 83 of the Act in finding that a separate breach of the Award occurred on each occasion Mr Sladden was paid and that a separate penalty should be imposed for each such breach.
Mr Sladden was paid weekly. The industrial magistrate, relying on what was said by the Industrial Appeal Court in Silberschneider v MRSA Earth Moving (1988) 68 WAIG 1004, found that a separate breach of the Award occurred each week and imposed penalties accordingly. In Silberschneider at (1005) Olney J said:
The employer's obligation under the award is normally to pay one sum of money for each pay period and that sum will be calculated according to the hours worked, the nature of the work and the other circumstances which give rise to an entitlement to be paid loadings, allowances and the like. If the actual amount paid is not less than the minimum amount payable upon a proper application of the award provisions there can be no contravention of or failure to comply with the award and thus no occasion for the exercise of jurisdiction under either of subsections (1) or (4) of section 83.
The appellants submitted that there can only be a breach when the obligation is not complied with. The appellants then submitted that where, as here, an award makes no provision for the frequency of payment of a casual employee - other than on termination of employment ‑ the breach begins at the time of termination. As Mr Sladden was a casual employee for the duration of his employment, the appellant submits that there was no breach of the Award until he was terminated and not paid all the monies alleged to be owing to him. Accordingly, it was submitted, there was only one breach and only one penalty should have been applied.
The appellants referred to authorities to the effect that each breach of an award obligation is a continuing offence in the sense that each separate breach is not complete and concluded until such time as the forbidden state of affairs, in this case underpayment of each week of wages, is brought to an end.
The appellants paid Mr Sladden weekly. Each payment was payment for the work done by Mr Sladden in the preceding week. Each time the appellants made payment they contravened the Award by failing to pay to Mr Sladden the amount they were required to pay to him under the Award for the work for which the appellants paid Mr Sladden. It makes no difference that each breach may be characterised as a continuing breach. This ground of appeal is not made out.
IAC Appeals 7 and 8 of 2007
In these appeals, the appellants contend that the Full Bench erred in its construction of s 83, s 83A and s 113(3) of the Act in finding that reg 12(4) of the Industrial Magistrates Court (General Jurisdiction) Regulations 2005 (WA) (the Regulations) that provided for an award of interest was a valid regulation.
It is necessary to briefly review the relevant statutory provisions relating to interest. Section 81CA(2) of the Act provides that the powers, practice and procedure of an industrial magistrates' court, except as prescribed, shall be those provided for by the Magistrates' Court (Civil Proceedings) Act 2004 (WA) (the MC(CP) Act) as if those proceedings were a case within the meaning of that Act. A case is defined in s 3(1) of the MC(CP) Act as any proceeding involving or in connection with the court's civil jurisdiction. Section 12(1) of the MC(CP) Act provides that where the court gives judgment in favour of a claim for money it may include in the judgment sum either interest, at a rate decided by the court, on the whole or a part of the money or a lump sum of money in lieu of such interest. The Regulations includes an order made under s 83E of the Act as a judgment. An order made under s 83A of the Act is a judgment which is capable of attracting interest under s 12(1) of the MC(CP) Act.
The Regulations provide by reg 3(2) that the MC(CP) Act does not apply to the industrial magistrates courts. Regulation 12 provides for the payment of pre‑judgment interest and by reg 12(4) requires an order for interest to be paid where an order is made under s 83A except where good cause is shown to the contrary.
The Acting President, with whom the other members of the Full Bench agreed, found that reg 12(4) of the Regulations was validly made in accordance with s 113(3) of the Act. Section 113(3) of the Act provides relevantly:
The Governor may make regulations for the purpose of regulating the practice and procedure before an industrial magistrates court, for and incidental to the exercise of its powers and jurisdiction under this Act, and prescribing the costs to be allowed in proceedings before an industrial magistrates court, and the fees to be paid, and the allowances to witnesses in respect thereof and the enforcement of a judgment, order, direction, or other decision of an industrial magistrates court.
On a proper construction of the subsection the words 'for and incidental to the exercise of its powers and jurisdiction under this Act' is not qualified by the words 'for the purpose of regulating the practice and procedure before an industrial magistrates court'. The question then is whether the regulation empowering the court to award interest is a regulation for and incidental to the exercise of the industrial magistrates courts' powers and jurisdiction under the Act.
Section 83A of the Act empowers the industrial magistrates court to order an employer who has underpaid an employee to pay to the employee the amount by which the employee has been underpaid. The power to award interest may properly be described as being for and incidental to the exercise of the power conferred on the industrial magistrates court by s 83A of the Act. An order for the payment of interest bears a sufficiently close connection to the power to order payment of the amount of the underpayment and is directed to the reasonable fulfilment of that power. The payment of interest makes more effective the payment of the underpayment in that it is directed to putting the employee in the position he would have been in if he had been paid as and when required by the Award.
Assuming reg 3(2) is supported by the regulation making power then that supports the conclusion that reg 12(4) is also supported by the regulating making power. If, contrary to that assumption, reg 3(2) is not within power then the MC(CP) Act applies to the industrial magistrates courts. In that event, s 12(1) of the MC(CP) Act would empower the industrial magistrates court to award interest.
These appeals are not made out.
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