North West County Council v Dunn

[1971] HCA 34

HIGH COURT OF AUSTRALIA

Barwick C.J., Menzies, Owen, Walsh and Gibbs JJ.

NORTH WEST COUNTY COUNCIL v. DUNN

(1971) 126 CLR 247

9 August 1971

Local Government (N.S.W.)—Industrial Arbitration (N.S.W.)—Prohibition

Local Government (N.S.W.)—Officers and servants—Supervision—Dismissal—Conciliation committee—Whether power under Industrial Arbitration Act to order reinstatement of employee dismissed under Local Government Act—Jurisdiction of committee—Local Government Act, 1919-1968 (N.S.W.), s. 99. Industrial Arbitration (N.S.W.)—Conciliation committee—Validity of proceeding—Power to order reinstatement of employee dismissed under Local Government Act—Jurisdiction of committee—Industrial Arbitration Act, 1940-1969 (N.S.W.), ss. 5, 20, 25, 74. Prohibition—Industrial conciliation committee—Excess of jurisdiction—Privative clause—Validity of proceedings not to be challenged except as provided in Act—Effect—Industrial Arbitration Act, 1940-1969 (N.S.W.), s. 24 (11)*.

Decisions

August 9.
The following written judgments were delivered:-
BARWICK C.J. North West County Council (the appellant) sought of the Supreme Court of New South Wales a writ of prohibition to restrain the chairman and members of the County Council Electricity Undertakings Employees' Conciliation Committee (the respondent committee) from further proceeding with "the application of the respondent Electrical Trades Union of Australia, New South Wales Branch for the reinstatement of the respondent Lyall James Munro". That union is now a respondent in this appeal (the respondent union) as is the respondent Lyall James Munro (the respondent employee). The Supreme Court (Court of Appeal Division) refused a rule absolute for prohibition. In so doing it followed and applied its own earlier decision in Ex parte North West County Council; Re Manuel (1968) 70 SR (NSW) 378; 88 WN (Pt2) 279; 16 LGRA 306 . (at p250)

2. It has been assumed throughout the proceedings that the respondent committee deriving its powers from the Industrial Arbitration Act, 1940-1969 (N.S.W.) ("the Arbitration Act") and an award known as The County Electricity Undertakings Conditions of Employment Award ("the Award") generally had power to order the reinstatement of employees who have been dismissed by a local government authority bound by the Award by which they have been employed. It has also been assumed that the proceedings which had commenced before the committee originating in the notification of the possibility of an industrial dispute at the North West County Council were an appropriate means of applying to the respondent committee for the exercise of its power to order the reinstatement of an employee. I do not propose to examine the validity of these assumptions though I should not be thought to be calling in question the power of an appropriate tribunal under the Arbitration Act to order the reinstatement of an employee in private employment. (at p250)

3. The question which has arisen for decision in this appeal is whether the enactment of the Local Government Amendment Act, 1945 (N.S.W.) which inserted s. 99 (11A) into the Local Government Act, 1919-1968 (N.S.W.) ("the Local Government Act") operates to prevent an industrial arbitration tribunal under the Arbitration Act ordering the reinstatement in employment of a servant of a local government body to whom s. 99 applies and whose services with the council have been terminated by the council in conformity with that section. (at p250)

4. The respondent employee was dismissed from the appellant's service after being suspended and his attention called to his right under s. 99(4) to apply for an inquiry under s. 99(5). He did not apply for an inquiry within the time specified in the section. After that time had expired and before the appellant had resolved that the respondent employee be dismissed, a step which it took on 27th August 1970, the respondent union on 10th August 1970 notified the Industrial Registrar of the possibility of a dispute at the North West County Council with respect to the suspension of the respondent employee. I assume for the purposes of these reasons that the power of the respondent committee but for the enactment of s. 99 (11A) of the Local Government Act would have extended so far as to have enabled it to order the reinstatement of any employee of a county council. The question then is whether upon the enactment of s. 99 (11A) the Arbitration Act ceased to authorize the making of such an order. The ground upon which it is said that it did is that the provisions of the Local Government Act after the insertion of s. 99 (11A) into it were so inconsistent with the continuance of any such power that it effected a pro tanto repeal of or engrafted an exception upon the grant of the power of an industrial arbitration tribunal to order the reinstatement of any dismissed employee of a local government council. (at p251)

5. The concept of an arbitral tribunal requiring the reinstatement of the employee of such a council, a statutory body under a statutory duty to employ only those who are necessary for its operations (see s. 95), is in itself sufficiently odd to make one wonder whether the power to order reinstatement, should in any case extend so far. There can be no comparison whatever between the situation of a private employer and that of a statutory body under statutory duties and restraints with respect to employment of servants and to the termination of their employment. This is particularly so when it is realized that the question for the arbitral tribunal when asked to order reinstatement is not whether the employer had a right of dismissal available to him at the relevant time but whether the exercise of that right was so harsh in all the circumstances as to have amounted in an industrial sense to an abuse of the power. One can well understand in an arbitration system the need to have a provision in relation to private employers which will allow the examination of the circumstances of the dismissal and to grant the power to order the servant to be replaced in his situation if the circumstances so warrant. But it is much more difficult to conceive of the need for such a power in relation to statutory bodies which are under the control of the Parliament in a much more direct and particular fashion than is the individual private employer. But it seems to me that the doubts which are thus raised as to the reach of the arbitral power to order the reinstatement are much strengthened when in relation to the local government bodies the Parliament has seen fit to make a specific provision for examining the circumstances in which the local government body, having suspended its employee, is minded to exercise its power of dismissal. The matter is carried much further when the very question which is the focus of an application for reinstatement by an arbitral tribunal is the question to be dealt with in the inquiry under the particular statute governing the local government council. The power of the Minister to correct within the monetary limits specified in s. 99 (11A) (a) what he may think is unfair in the dismissal of the employee to my mind emphasises the completeness with which the Local Government Act affects to provide for the oversight of the circumstances of a dismissal both threatened and actual of a council employee. But perhaps the most telling feature of the provisions of the Local Government Act is that the Parliament in that Act, though it has provided a means of examination of the propriety of the dismissal of the employee and for compensation of the dismissed employee, has left the decision whether or not to terminate the employee's services with the council even in circumstances where an inquiry under s. 99 may have produced a recommendation that the employee be not dismissed. After a good deal of reflection I find it impossible to conclude that the legislature in so enacting intended that the power of an arbitral tribunal to order the reinstatement of an employee to whom s. 99 applies should coexist with the Local Government Act. If it did, it would enable the making of such an order at any point of time and notwithstanding the engagement by the council of some substituted employee: and even though after all the provisions of s.99 had been followed, the Minister had ordered compensation. I have therefore concluded that at least after the insertion of s.99(11A) in the Local Government Act, there remained no power in any tribunal under the Industrial Arbitration Act, including the respondent committee, to order the reinstatement in employment of an employee of a council, both council and employee being within the ambit of s.99. I have in all this treated all the employees of the council including the Shire Clerk as within the area of discussion. In my opinion, no valid distinction can be made between any of the employees who fall within the description of s. 99. (at p252)

6. As for the decisions of the Supreme Court on this matter I would agree with the conclusion in Edwards v. Culcairn Shire Council (1963) 64 SR (NSW) 62; 81 WN (Pt2) 31; 9 LGRA 316 . In my opinion, Ex parte North West County Council; Re Manuel (1968) 70 SR (NSW) 378; 88 WN (Pt2) 279; 16 LGRA 306 was wrongly decided. The Supreme Court in Ex parte Sutherland Shire Council; Re Cahill (1969) 91 WN (NSW) 378 ; 19LGRA 197 made an unnecessary distinction in order to reach its conclusion. I think that both in Edwards v. Culcairn Shire Council (1963) 64 SR (NSW) 62; 81 WN (Pt 2) 31; 9 LGRA 316 and in Ex parte North West County Council; Re Manuel (1968) 70 SR (NSW) 378; 88 WN (Pt 2) 279; 16 LGRA 306 the Supreme Court took too narrow a view of the purpose of the inquiry under s. 99 and of the nature of the report which could be made. See Sutherland Shire Council v. Finch (1970) 123 CLR657; 20 LGRA 350 . I think also that some members of the Court took an erroneous view of the nature of the issue before an arbitral tribunal when asked to order reinstatement. Whilst the issue arises in such a case between the union and the employer because of the provisions of the Arbitration Act, it is really one between the employer and the employee. The application is solely for the employee's benefit and the considerations to be had in mind by the tribunal are not matters of the public interest nor may they include a desire to secure industrial peace. The question is whether the employer has acted so harshly and so abused his legal right that an intervention of the arbitral tribunal is necessary to secure justice to the particular employee in relation to the employment which he formerly had. I would therefore allow the appeal. (at p253)

7. Since writing the above I have had the advantage of reading the reasons for judgment prepared in this case by my brother Walsh. He there sets out more fully than I have done the details of the case. I agree with the conclusion at which he arrives as to the interaction of the Local Government Act and The Industrial Arbitration Act and with his analysis which leads him to that conclusion. (at p253)

8. I would merely add that I do not find it necessary to reach any concluded view on the question whether the privative provisions of the Industrial Arbitration Act to which he refers are applicable to this matter. No point of that kind was taken before the Full Court and we have not the advantage of that Court's views upon the matter. The point was not taken in this Court and I do not feel called upon to pass upon it. It is not a case in which the jurisdiction of this Court has to be examined. Any question of jurisdiction is of that of the Supreme Court. This Court it seems to me is at liberty to allow the appeal and to make the order which the Supreme Court should have made upon the issues which were raised before it where neither the parties nor that Court has seen fit to raise the question of jurisdiction. In so saying, I would not wish it to be inferred that I disagree with the conclusion to which my brother Walsh has come as to the applicability of the privative provisions. The inclination of my mind is in the same direction as his. (at p254)

MENZIES J. The Local Government Act of New South Wales, as amended in 1945, contains elaborate provisions to protect council servants with a year's continuous service against the termination of their employment. These provisions were considered in Sutherland Shire Council v. Finch (1970) 123 CLR 657; 20 LGRA 350 and I do not propose to recapitulate what was there said about them. Suffice it is to say that any such servant-and any other servant belonging to specified categories-facing loss of employment with a council can require an independent inquiry before dismissal. If a council, exercising its legal right to do so, terminates the services of a servant who has obtained from an inquiry a report substantially favourable to him, the council may, notwithstanding its legal rights, be required under s. 99 (11A) to pay compensation to the servant whom it decides to dismiss. (at p254)

2. The question here is whether, when a servant entitled to the special protection afforded by the Local Government Act, has been dismissed in accordance with the procedures there laid down, an order for his reinstatement in the employ of the council may be made pursuant to the general power conferred by s. 20 (1) of the Industrial Arbitration Act. The Court of Appeal of the Supreme Court of New South Wales has answered this question affirmatively and discharged an order nisi for prohibition to prevent the continuation of proceedings under that section directed towards the reinstatement of the servant dismissed by the appellant council. The fate of the appeal depends upon the character to be attributed to the provisions of the Local Government Act to which I have referred. (at p254)

3. In my opinion the effect of those provisions is to entrust to the decision of a council the question whether one of its servants is to be dismissed and it would be an unauthorized derogation from those provisions to treat s. 20 (1) of the Industrial Arbitration Act as conferring the final power to determine whether or not a council servant, protected by the Local Government Act, should be dismissed. If s. 20 (1) does not apply to the dismissal of an employee, it cannot apply to the reinstatement of an employee who has been dismissed. It would be a like derogation from the provisions of the Local Government Act to regard s. 20 (1) of the Industrial Arbitration Act as authorizing a determination binding upon a council that it should reinstate a servant who has been dismissed in accordance with the provisions of the Local Government Act. Compulsory reinstatement is foreign to the tenor of these sections. An order under s. 99 (11A) of the Local Government Act and an order for reinstatement under s. 20 (1) of the Industrial Arbitration Act would sit but ill together. (at p255)

4. I acknowledge that the view which I have stated is very much a matter of impression, but a close re-reading of the Local Government Act provisions has left me in no doubt that they state exhaustively the course to be taken for the termination of the services of a servant of a council who is entitled to their protection, and that the provisions of the Industrial Arbitration Act protecting employees generally from loss of employment should not be regarded as detracting from them. (at p255)

5. Accordingly, in my opinion, this appeal should be allowed and the order nisi for prohibition made absolute. (at p255)

OWEN J. My brother Walsh has dealt in detail with the facts and the law and for the reasons which he has given I agree that the appeal should be allowed. (at p255)

WALSH J. The respondent Lyall James Munro (herein called "the employee") was employed by the appellant, North West County Council ("the Council") as a linesman's assistant. On 3rd July 1970, the Council's Chief Electrical Engineer suspended the employee, who had had more than one year's continuous service with the Council. According to a letter of 23rd July 1970, addressed by the Council to the employee, a meeting of the Council was held on that day and

". . . it was resolved to confirm the action already taken by the Chief Electrical Engineer in suspending you from duty from 3rd July 1970, and that, in conformity with s. 99 (2), Local Government Act, 1919, you now be suspended from duty with the Council with a view to termination of employment."

Reasons were then stated for this action and the employee's attention was directed to s. 99 (4) of the Local Government Act, 1919, as amended (N.S.W.). (at p255)

2. Section 99 (2) of the Local Government Act, 1919 (N.S.W.), provides that where a council proposes to terminate the employment of any of the servants to whom the section applies it shall either order an inquiry under that section or suspend him. The section applies (see sub-s. (1)) to all servants who have had at least one year's continuous service with the council as well as to other servants who occupy certain specified positions. It applies to a county council (sub-s. (12)). Where a servant is suspended the council must state reasons for it (sub-s. (3)). The servant may apply to the council for an inquiry and thereupon it shall order an inquiry. If the servant does not apply for an inquiry the council may proceed to determine the matter (sub-s.(4)). The person holding the inquiry, who is appointed by the Governor, must make a report in writing which must be read in open council and, where an inquiry is ordered, the decision of the council shall not be given until after the reading of the report (sub-ss. (5), (6) and (7)). The person holding the inquiry may award costs and expenses against the council or the servant and these may be recovered as a debt (sub-s. (10)). The person holding the inquiry shall also determine whether the servant shall or shall not be paid his salary, or any part thereof, for the period of his suspension (sub-s. (11)). Sub-section 11A provides:

"(a) In any case where the council decides to terminate the services of the servant notwithstanding that the report of the person holding the inquiry is substantially favourable to
the servant, the Minister, on the application of the servant made within fourteen days after termination of his services, may, after such inquiry as he deems sufficient, direct the council to pay to the servant as from the date of termination of his services compensation not exceeding an amount equivalent to the amount of four weeks' salary or wages for each year of service, such salary or wages being reckoned on the average of the weekly salary or wages paid to him during the fifty-two weeks immediately preceding the date upon which the inquiry was ordered or the date of his suspension as the case may be. (b) The council shall pay to the servant the amount of compensation as directed by the Minister, and if the council fails to do so the servant may recover the amount as a debt due to him by the council." (at p256)

3. In this case no inquiry was sought by the employee and, accordingly, the Council "proceeded to determine the matter". On 27th August 1970 the Council resolved that the employee "be dismissed as from the date of suspension, 3rd July 1970". It seems to have been assumed then, and it was assumed also in the arguments addressed to this Court, that there had been an effective suspension from 3rd July. From the facts already recited, it may appear that the employee was not suspended, in accordance with and for the purposes of s. 99, until 23rd July. It was then that the Council dealt with the matter and it was then that the employee was advised of his right under s. 99 (4) to apply for an inquiry within one week after suspension. But nothing turns upon the questions whether his suspension operated from 3rd July or 23rd July or whether the subsequent termination of his services could properly be made effective from 3rd July, by the resolution of 27th August. (at p257)

4. Since no application was made for an inquiry, there was no occasion for the operation of those provisions of s. 99 which deal with the holding of an inquiry and the consequences of it. But I have referred to those provisions because the section as a whole needs to be considered in resolving the questions raised by the proceedings in which this appeal has been brought. To these proceedings I must now refer. On 10th August 1970, that is to say, after the employee had been suspended and after the time had expired in which he was entitled to apply for an inquiry but before any further action had been taken by the Council, the employee's union wrote to the Industrial Registrar a letter in the following terms:

"I wish to notify you of the possibility of a dispute that may occur at North West County Council that could involve the members of this Union who are employed by the Council at Moree. A member, Mr. Lyall Munro, has been suspended from duty since July 3, and I hereby request that a meeting of the County Councils (Electricity Undertakings) Employees Conciliation Committee be convened in accordance with the disputes Procedure, Clause 18 of the County Councils (Electricity Undertakings) Conditions of Employment Award."

Clause 18 of the Award, to which the letter referred, provides that any dispute arising out of the Award shall, in the first instance, be referred to the County Councils (Electricity Undertakings) Employees Conciliation Committee. It may be questioned whether any dispute which then existed in consequence of the employee's suspension, or any dispute which could occur thereafter in relation to it, was or would be a dispute arising out of the award. Clause 3 (i) of the Award is in these terms:

"Except where otherwise provided in his terms of appointment an employee shall give to the council and the council shall give to an employee, subject to the Local Government Act, 1919, as amended, the following notice of termination of employment: - (a) Salaried Staff - one month. (b) Wages Staff - one week."

Reference was made in argument to the question whether a council is required, in a case in which it terminates the employment of a servant in accordance with s. 99, to give the notice specified in that clause of the award or to give any other notice for which a contract of service might provide. But, whatever may be the correct answer to that question, it is clear, as subsequent events showed, that the dispute to which the notification to the Industrial Registrar referred was not a dispute as to whether a breach by the Council of the provisions of cl. 3 (i) of the Award as to notice of termination of employment had occurred or was threatened. The question that might become a matter of dispute was whether the Council had acted properly in suspending the employee and would act properly if it proceeded to terminate his employment. (at p258)

5. The evidence shows that after the notification had been sent to the Industrial Registrar, there was, on 19th August, a compulsory conference which took place before the respondent Mr. Francis Dunn, a Conciliation Commissioner, appointed under the provisions of the Industrial Arbitration Act, 1940-1969 (N.S.W.). He appointed 9th and 10th September 1970 for "the hearing of the alleged dispute between the North West County Council and the Electrical Trades Union of Australia, New South Wales Branch". Thereafter, Mr. Dunn issued a notice convening a sitting on 9th September of the County Councils (Electricity Undertakings) Conciliation Committee of which he was Chairman. The notice described the business for which the sitting would be held in these terms: "Dispute between North West County Council &Electrical Trades Union Re Suspension of Employee." (at p258)

6. There is evidence that when the Committee met, it was stated on behalf of the union: "We are asking for reinstatement from 3rd July." It was then submitted for the Council that the Committee had no jurisdiction but this was overruled and the Chairman said that the Committee would proceed to hear the matter on the merits. On the same day a rule nisi was obtained from a judge of the Supreme Court of New South Wales requiring the Chairman and members of the Committee, the employee, and the union to show cause why a writ of prohibition should not issue to restrain them from further proceeding "with the application of the respondent Electrical Trades Union of Australia, New South Wales Branch for the reinstatement of the respondent Lyall James Munro". On 9th November 1970, the Supreme Court (Court of Appeal Division), following and applying the earlier decision of that Court in Ex parte North West County Council; Re Manuel (1968) 70 SR (NSW) 378; 88 WN (Pt2) 279; 16 LGRA 306 , discharged the rule nisi with costs. This is an appeal against that order of the Court of Appeal. (at p258)

7. From the foregoing recital of the facts it may be seen that, although no application had been made by the union in accordance with s. 74 of the Industrial Arbitration Act, the proceedings before the Committee on 9th September, by which date the Council had terminated the employee's employment, were treated by the parties as an application by the union for the reinstatement of the employee in his employment. In the course of the argument in this Court reference was made to s. 25 of the Industrial Arbitration Act to explain the calling of the compulsory conference and the summoning of the members of the Committee to deal with the matter. It is not necessary to consider whether the conditions set out in pars (a), (b) and (c) of s. 25 (1) were satisfied. The submissions on behalf of the appellant do not include any submission that the Committee lacked power to take the action which it proposed to take, for the reason that the procedural steps by which the case had come before the Committee were not in accordance with the Act, or, for the reason that the matter with which it was to deal had not been properly formulated. (at p259)

8. Section 20 (1) of the Industrial Arbitration Act provides:

"Subject to this Act, a committee shall have cognizance of and power to inquire into any industrial matter in the industry or calling for which it is established, and in respect of such industry or calling may on any reference or application to it make an order or award - . . . (e) determining any industrial matter."

In s. 5, the term "Industrial matters" is defined. The term is stated to include,

". . . all or any matters relating to- . . . (c) the employment of children or young persons, or of any persons or class or persons in any industry, or the right to dismiss or refuse to employ or reinstate in employment any particular person or class of persons therein; but not so as to give preference of employment to members of industrial unions, except in accordance with the provisions of paragraph (g) of subsection one of section twenty of this Act."

These provisions have been regarded as giving authority to Conciliation Committees, and also to the Industrial Commission (see s. 30), to make an order against an employer to reinstate in employment an employee whose services have been terminated, notwithstanding that in terminating them the employer has not committed any breach of contract or of any relevant award or other law. It may be observed that there is no express provision for the making of an order that an employee be reinstated. But the power to make an order or an award "determining any industrial matter" has been regarded as extending to the making of such an order. In the provision by which the right to dismiss or refuse to employ or reinstate in employment is declared to be an "industrial matter", the term "right" has been treated as not referring solely to a legal right, but as referring to the propriety, as a matter of fairness and justice, of doing in particular circumstances that which admittedly an employer has a legal right to do. The Industrial Commission has laid down principles, to which I shall refer again, as to the manner in which the power to order reinstatement of a servant who has been lawfully dismissed should be exercised. But for a long time it has been considered that there is power to do so. The question was examined by Rolin J. in In re Bank Officers (State) Board (1921) AR138 . His decision was that the power existed. In Bank of New South Wales v. United Bank Officers' Association and the Court of Industrial Arbitration (1921) 21 SR (NSW) 593, at p 611 , the contrary opinion was expressed by Cullen C.J., with whose judgment Wade J. agreed. But that view has not prevailed in the Industrial Commission and, in later cases, in the Supreme Court, including those to which I shall make particular reference later, it appears to have been assumed that the power exists. In the present case no argument to the contrary has been advanced. The appellant's contention that the Committee has no jurisdiction in this case to order reinstatement is not based upon any suggestion that the relevant provisions of the Industrial Arbitration Act do not confer in any case such a power. It is based solely upon the contention that those provisions are not applicable at all in relation to employees whose services are terminated in accordance with s. 99 of the Local Government Act. I proceed to examine that contention without expressing any opinion upon the correctness or otherwise of the generally accepted view that s. 20 (1) (e), read with the definition of "Industrial matters" in s. 5, confers authority to order an employer to reinstate a former employee whose services have been terminated in accordance with law. For the purposes of these reasons that view is assumed to be correct. (at p260)

9. The question which has to be considered is whether the provisions of the Industrial Arbitration Act under which a reinstatement order may be made should be held to be inapplicable, in so far as they would, if applicable, authorize an order for the reinstatement of a servant of a council to whom s. 99 applies and whose services have been terminated after the steps specified therein have been taken. I prefer to state the question in that way rather than to express it either as being whether s. 99 constitutes a "code" relating to the termination of the employment of the servants to whom it applies or as being whether that section prescribes exclusively the remedies available to such a servant whose employment is terminated. It is only with the narrower question as to the power to order reinstatement that the Court is concerned in this case. Other questions have arisen, or may arise, as to the effect of s. 99 upon the common law rights or the statutory rights of such a servant, for example, the question of his right to be paid compensation in lieu of notice, which was considered by Kinsella J. in Chadwick v. Municipality of St. Mary's (1948) AR 502 and the question of his right to sue at common law for damages for wrongful dismissal, which was considered by a Full Court of the Supreme Court of New South Wales in Edwards v. Culcairn Shire Council (1963) 64 SR (NSW) 62 ; 81 WN (Pt 2) 31 ; 9 LGRA 316 . No doubt all the consequences which s. 99 may have need to be considered in examining the question whether a legislative intention has been shown that, in relation to the employees described in it, the Industrial Tribunals should not have authority to make orders binding the councils not to dismiss such employees or not to refuse to reinstate them when they have been dismissed. But I think that it is not desirable or practicable to resolve, in this case, all the problems which may arise in relation to s. 99. (at p261)

10. In Edwards' Case (2) the Supreme Court held that an action for wrongful dismissal without reasonable notice did not lie at the suit of the plaintiff, who had been dismissed after an inquiry under s. 99 and had applied for and received compensation in accordance with sub-s. (11A) thereof. The view was expressed that, prior to 1945, s. 99 did not prevent the maintenance of such an action, assuming that s. 95 did not operate to authorize dismissal without notice. But it was said that the amendments made in 1945 to s. 99, which are described in the report (1963) 64 SR(NSW), at p 68 ; 81 WN (Pt 2) 31, at p 34 ; 9 LGRA, at p. 322. and particularly the insertion of sub-s. (11A), had the effect that the right of action for breach of contract or wrongful dismissal was superseded. It was stated that the servant whose employment is terminated pursuant to s. 99,

". . . has no right of action for damages, no right to an injunction against termination, no right to a declaration that his employment has not been terminated and no right to an order for reinstatement." (1963) 64 SR (NSW), at pp 69-70 ; 81 WN (Pt 2), at p 36 ; 9 LGRA at p. 323. (at p262)

11. When the case of Ex parte North West County Council; Re Manuel (1968) 70 SR (NSW) 378 ; 88 WN (Pt 2) 279; 16 LGRA 306 , came before the Court of Appeal nearly five years later, no relevant amendments had been made to the statutory provisions. There the Court, or, at any rate, two members of it, accepted as correct the view that s. 99 has displaced common law remedies relating to the tenure of employment or to compensation in respect of dismissal (see (1968) 70 SR (NSW), at p 382 ; 88 WN (Pt 2), at p 282 ; 16 LGRA, at p. 309. , per Holmes J.A., with whom Herron C.J. agreed). But they rejected the view that the reinstatement provisions of the Industrial Arbitration Act were affected. The judgment of Holmes J.A. (1968) 70 SR (NSW), at p 381 ; 88 WN (Pt 2), at p281 ; 16 LGRA, at pp.308-309. makes a distinction, which is treated as a critical one, between an industrial matter in which an industrial union acts on behalf of its members in "an effort to bring about industrial peace" and the rights of an individual employee as to his tenure of employment and as to compensation. In his Honour's view, the Industrial Arbitration Act provisions are concerned with the former and the Local Government Act provisions with the latter. But, with respect, I think that there are some considerations which operate against attaching great importance to that distinction. As it has been consistently interpreted by the Industrial Commission, the reinstatement power is not exercised in order to promote industrial peace. It is exercised only where it has been proved that the employer's action in dismissing the employee was harsh or unjust in relation to that employee. The principle was stated in In re Barrett and Women's Hospital, Crown-Street (1947) AR 565, at pp 566-567 in a passage which has been quoted in subsequent cases. That passage included the following :

"It is not the province of the Commission, in the exercise of the jurisdiction conferred on it by the Industrial Arbitration Act, to take over the functions of the employer in relation to the selection and retention of employees, and it will intervene only where its intervention is necessary to protect an employee against an unjust or unfair exercise of the employer's right of dismissal, a right which is as fundamental in the relationship of employer and employee as is the right of an employee to leave his employment."

A summary of the principles, given by McKeon J. in Western Suburbs District Ambulance Committee v. Tipping (1957) AR 273, at pp 279-280 , the accuracy of which is not affected by the fact that his Honour dissented from the decision in that case, includes the statement (1957) AR, at p 280 that a "proper test" is to ask the question : "Has there been or has there not been oppression, injustice or unfair dealing on the part of the employer towards the employee?" Therefore, although it is true that the union is the moving party where an application is made under s. 74, the question to be investigated is treated as being a question as to the relationship between the employer and the individual employee ; not indeed a question as to their respective legal rights, but a question whether the legal right of the employer has been exercised so harshly or oppressively against the employee as to amount to an abuse of that right. (at p263)

12. Thus understood, the investigation which an application for reinstatement requires does not differ very greatly from that which needs to be made in an inquiry conducted under s. 99. The scope and purpose of such an inquiry have recently been elucidated in Sutherland Shire Council v. Finch (1970) 123 CLR ; 20 LGRA 350 . Its object is to find out "whether in all the circumstances the services of the employee ought to be terminated" (per Barwick C.J. (1970) 123 CLR 567, at p 660; 20 LGRA 350, at p 351 ). It should cover "whatever is material to an informed decision whether or not to dismiss a particular servant" (per Menzies J. (1970) 123 CLR 657, at p 662; 20 LGRA 350, at p 353 ). The primary purpose of the report made after an inquiry "is to provide material for consideration by the council before it decides upon the dismissal of a servant" (per Gibbs J. (1970) 123 CLR 657, at p 670; 20 LGRA 350, at p 359 ). Those who decided Edwards' Case (1963) 64 SR (NSW) 62; 81 WN (Pt 2) 31; 9 LGRA 316 and those who decided Manuel's Case (1968) 70 SR (NSW) 378; 88 WN (Pt 2) 279; 16 LGRA 306 appear to me to have taken a somewhat different view of the nature and scope of an inquiry under s. 99 from that which has since been taken in this Court in Finch's Case (1970) 123 CLR; 20 LGRA 350 . As it is now understood, I think it may be said that the scope of such an inquiry is not narrower (as appears to be suggested in Manuel's Case (1968) 70 SR (NSW) 378; 88 WN (Pt 2) 279; 16 LGRA 306 ), but wider than that which is undertaken by the Industrial Tribunals upon an application for reinstatement. But in both, the question is what the employer ought to do or ought to have done rather than what he has or had the "right" to do. I do not suggest that the issues of fact to be determined or the considerations to be applied are identical in both investigations. I acknowledge, also, that the inquiry and report under s. 99 do not bind the Council as to whether the employee is or is not to be in its employment, whereas an order under the Industrial Arbitration Act would bind it. Yet the two investigations seem to have enough in common to raise serious doubts whether it was intended by the legislature that both may be pursued in relation to the same employee. These doubts are increased by other considerations to which I have yet to refer. (at p264)

13. For the reasons I have indicated, I think that the distinction upon which Holmes J.A. relied in Manuel's Case (1968) 70 SR (NSW) 378; 88 WN (Pt 2) 279; 16 LGRA 306 does not provide a satisfactory solution of the problem under consideration. His Honour went on to say (1968) 70 SR (NSW), at p 382; 88 WN (Pt 2), at p 282; 16 LGRA, at p. 309. that s. 99 "does provide a code, but the code stops with the termination of employment, be it with or without compensation". Then, according to his Honour, the Industrial Arbitration Act "takes up any industrial matter which may have arisen between the union on behalf of its members and the employer council". With respect, I do not agree with that view of the effect of the statutes. The only relevant "industrial matter" which may be taken up by the Industrial Arbitration Act is the very question whether the termination of employment (here assumed to have taken place in accordance with a "code") should be nullified. If this may be done at all it may be done long afterwards and after the position of the applicant has been filled. It may be done in cases in which, pursuant to sub-s. (11A), compensation has been paid. If these consequences of the availability, in these cases, of the power to order reinstatement were intended by the legislature then, of course, effect must be given to that intention. But they are consequences which have such a direct bearing upon the exercise by a council of its right to terminate the employment of a servant that it does not seem satisfactory to single out the point of time at which the termination takes place and to say that up to that point the provisions of s. 99 govern exclusively the relationship of the council and many of its servants but thereafter those provisions may be disregarded and to treat any action then taken in an industrial tribunal as a separate matter having a different character and purpose. (at p264)

14. In Manuel's Case, Hardie A-J.A. (1968) 70 SR (NSW), at p 384; 88 WN (Pt 2), at p284; 16 LGRA, at pp. 311-312. expressed the opinion that there is "some force" in the contention that s.99 "constituted a complete code, and by implication excluded other statutory provisions, such as those in the industrial arbitration legislation, dealing with the same subject matter". But his Honour thought that the legislature had not clearly indicated an intention that dismissed employees "cannot call in aid the rights and remedies conferred by the reinstatement provisions of the Industrial Arbitration Act". As I have said earlier, I do not think it is necessary to ask whether there is in s. 99 a complete code. For even if it does not displace all other rights and remedies arising out of the contract of employment and its termination, it may indicate sufficiently an intention that employees to whom it applies may have their services terminated effectively and finally in accordance with its provisions and an intention that its provisions are not to be rendered ineffectual by the making of a reinstatement order. It is to be observed that Hardie A-J.A. referred to the reinstatement provisions as giving rights or remedies to the dismissed employees, whereas Holmes J.A. considered that there is a sharp contrast between the rights of individual employees on the one hand, and an industrial matter, which is the concern of the union, on the other hand. But although in a reinstatement application it is the union that takes action, nevertheless, an order, if made, benefits the particular employee and confers no direct benefit upon anyone else. It is not inaccurate, in my opinion, to speak of such an application as a remedy available to the employee, even if he must have the support of his union in order to take advantage of it. (at p265)

15. The question is whether the legislation should be interpreted as indicating sufficiently an intention that the reinstatement provisions are not to be applicable to employees of councils whose employment has been terminated in accordance with s. 99. Hardie A-J.A. pointed out in Manuel's Case (1968) 70 SR (NSW) 378; 88 WN (Pt 2) 279; 16 LGRA 306 that such an intention might well have been expressed by making an amendment to the proviso to s. 20 (1), which in relation to certain employees excludes the power to make an award consisting of a reinstatement order. But I have come to the conclusion that, in relation to the employees to whom s. 99 applies, the special provisions of the Local Government Act take effect to the exclusion of so much of the more general provisions of the Industrial Arbitration Act as would give authority to order their reinstatement. In my opinion, the existence in relation to those employees of that power would be so incompatible with the operation of the relevant provisions of the Local Government Act and with the execution and performance by these statutory bodies of their statutory powers and duties that it should be held that it was not intended that the power should be applicable to those employees. (at p266)

16. The particular difficulties which would be created if a dismissed shire clerk were to be reinstated under the provisions of the Industrial Arbitration Act caused a majority of the Court of Appeal to decide in Ex parte Sutherland Shire Council; Re Cahill (1969) 91 WN (NSW) 378; 19 LGRA 197 that a conciliation committee has no jurisdiction to order his reinstatement. But to accept the decision in Manuel's Case (1968) 70 SR (NSW) 378; 88 WN (Pt 2) 279; 16 LGRA 306 and then to except from its application the particular case of a shire clerk does not seem to me to be a satisfactory solution of the difficulties which are encountered in attempting to give effect to the two sets of provisions. If one accepts the decision in Manuel's Case (1968) 70 SR (NSW) 378; 88 WN (Pt 2) 279; 16 LGRA 306 and the reasoning upon which it was based, I share the difficulty which Mason J.A. felt in the later case in making a distinction between town and shire clerks and other servants of councils. When any servant is dismissed in accordance with s. 99, extraordinary consequences may attend his reinstatement if this is forced upon the council. If his position has already been filled, its occupant must then be dismissed or the council must employ two servants to do the work of one. That is, of course, a problem which might confront any employer against whom a reinstatement order is made. But the position of an ordinary employer differs from that of a council. In the first place, if he has to dismiss an employee to make way for a reinstated employee, he is at liberty to do that without troubling about such restrictive provisions as are contained in s. 99, whereas in many cases a council would be required to go through the procedures laid down by that section in order to get rid of the servant who had replaced the dismissed employee. Furthermore, the power of the council to appoint servants is limited by s. 95 (1) to the appointing of such servants as it thinks necessary to assist in the execution of the Local Government Act or any Act conferring powers or imposing duties on the council and it is expressly forbidden to appoint or to pay any person in contravention of that section (see s. 95 (4)). It is true that this provision is expressed to be subject to the provisions of the Local Government Act or any other Act. But it can hardly be said that it would be proper for a council to employ and to pay a servant whose services it did not require. Yet this it must do if it is ordered to reinstate a servant and if his place has already been taken by another whom the council is unwilling to dismiss, or if the services of the servant who has been dismissed and who must be reinstated were in the opinion of the council no longer required. Reference has already been made to the circumstances that, if the power exists, a servant may be reinstated to whom the council has already been obliged to pay his salary for the period of his suspension (sub-s. (11)) and to pay compensation as directed by the Minister in accordance with sub-s. (11A), as well as paying expenses and costs in respect of the inquiry itself (sub-ss. (9) &(10)). If in such circumstances a public body, which has a prima facie right under s. 95 to remove its servants as well as a right to appoint such servants as it thinks necessary, may be compelled to restore to its employment and to pay a servant whom it does not want then this appears to me to contradict what s. 99 provides. That section does indeed impose a drastic limitation upon the power of a council to dismiss a servant (see Sutherland Shire Council v. Finch per Menzies J. (1970) 123 CLR, at p 657; 20 LGRA, at p 353 ). In addition, in some cases it attaches to a dismissal in exercise of that power the very substantial obligations to which I have referred. But what s. 99 is careful to preserve is the right of the council, after having the benefit of the inquiry and a report, to make for itself the ultimate decision whether to terminate the employment or not. But if the provisions of the Industrial Arbitration Act apply, that right may be destroyed. (at p267)

17. In my opinion it is not a valid answer to the foregoing considerations to say that the power to order reinstatement is unlikely to be used in such a way that the consequences to which I have referred would attend its exercise. In my opinion the intention is indicated that the power of a council to dismiss its servants is to be restricted in relation to the servants to whom s. 99 applies to the extent therein specified and only to that extent. It was not intended that in relation to such servants its power of dismissal might be frustrated completely and that the council should be compellable to employ and pay a servant whose employment it has decided to terminate. (at p267)

18. A power to direct reinstatement of an employee is given by s. 95 of the Industrial Arbitration Act. But that power may be exercised only when there has been a dismissal for one of the particular reasons therein specified. A dismissal for any such reason is made a penal offence. It is not necessary to consider whether or not that power to order reinstatement is applicable to employees to whom s. 99 of the Local Government Act applies. I say nothing as to that question except that I think that different considerations would be involved in dealing with it from those which govern the applicability to those employees of the provisions with which we are concerned in this case. (at p268)

19. No argument was addressed to the Court on behalf of the respondents that the proceedings pending before the Conciliation Committee were protected by the Industrial Arbitration Act from supervision by the Supreme Court in the exercise of its powers to restrain, by means of the prerogative writs, an attempt by a tribunal to exceed its jurisdiction. But although this question was not argued it is a question to which I should refer. It would not be right to hold that the Supreme Court should have made absolute the rule nisi for prohibition if it appeared that the Industrial Arbitration Act prevented it from making such an order. In Ex parte Casey; Re Sydney County Council (1952) 53 SR (NSW) 350 , the Supreme Court of New South Wales decided by majority that in the circumstances of that case the Court was precluded by s. 84 of the Industrial Arbitration Act from granting a writ of certiorari. Their Honours referred to the earlier decision as to the effect of s. 84 in Bank of New South Wales v. United Bank Officers' Association and the Court of Industrial Arbitration (1921) 21 SR (NSW) 593 , which I have mentioned above. In the present case, however, I think that s. 84 may be left out of account, since it relates to decisions, awards, orders and proceedings of the Industrial Commission or of a member of that Commission. Here the proceedings are not before the Commission or a member of it. The relevant privative provision is not s. 84 but s. 24 (11) which is in quite different terms from s. 84. The subsection provides:

"The validity of any proceeding or decision of a committee or of the conciliation commissioner shall not be challenged except as provided by this Act."

A similar provision in the Industrial Arbitration (Amendment) Act, 1926 (N.S.W.) was held in Morgan v. Rylands Bros. (Aust.) Ltd. (1927) 39 CLR 517 to preclude the Supreme Court from entertaining a suit for a declaration that an award of a Conciliation Committee was a nullity. I am of opinion that that decision does not govern the present case and that the reasons given for it do not require a like decision here. If the contentions on behalf of the Council are accepted, as I think they should be, this case is one in which the Conciliation Committee intends to hear and determine an application for the reinstatement of an employee, who is one of a class of employees in respect of whom no power to make such an order has been conferred upon the Committee. The fact that it has power, as has been here assumed, to make an order of that kind in relation to other classes of employees is, I think, irrelevant. The assertion by the Committee of its authority to deal in this case with an application for reinstatement of the employee is a claim to have jurisdiction in a matter which (upon the view that I take) does not relate to the subject with which the legislation deals, but to a subject in respect of which the intention has been indicated by the Parliament that no such power should exist: cf. R. v. Murray; Ex parte Proctor (1949) 77 CLR 387, at p 398 . In such circumstances the Supreme Court is not precluded, in my opinion, from prohibiting the Committee from proceeding to exercise that jurisdiction by the provision in sub-s. (11) of s. 24 stating that the "validity" of a proceeding or decision of a Committee shall not be challenged, except as provided by the Act, that is, otherwise than by an appeal or an application pursuant to the earlier subsection of s. 24. (at p269)

20. In my opinion the appeal should be allowed. (at p269)

GIBBS J. I have had the advantage of reading the reasons prepared by my brother Walsh and am in agreement with them. Accordingly, I consider that we should overrule the decision of the Supreme Court of New South Wales in Ex parte North West County Council; Re Manuel (1968) 70 SR (NSW) 378; 88 WN (Pt 2) 279; 16 LGRA 306 , and allow the appeal in the present case. (at p269)

2. I would add a few words on one minor aspect of the case. The employee was suspended from 3rd July 1970 by the Chief Electrical Engineer in the exercise of the power conferred by Ordinance 4, par. 13C (ci) of the Ordinances made under the Local Government Act, 1919, as amended (N.S.W.). Nothing was said in argument to cast any doubt on the efficacy of that suspension. However, it was clearly not until 23rd July 1970 that the Council, proposing to terminate the employment of the employee, suspended him under s. 99 (2) of the Local Government Act and stated the reason for the suspension under s. 99 (3). No argument was addressed to the question whether in these circumstances the Council had power to resolve that the employee be dismissed as from 3rd July 1970 rather than from 23rd July 1970, but as nothing turns on that question for the purposes of the present decision, it is unnecessary to express any opinion upon it. (at p270)

Orders

Appeal allowed. Order of the Supreme Court of New South Wales (Court of Appeal Division) set aside and in lieu thereof order that the rule nisi for prohibition granted on 9th September 1970 be made absolute. Respondent union to pay the costs of the appellant of this appeal and of proceedings in the Supreme Court.