Public Service Association of SA Inc v Industrial Relations Commission of SA - [2011] SASCFC 14

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Application for Judicial Review)
PUBLIC SERVICE ASSOCIATION OF SA INC v INDUSTRIAL RELATIONS COMMISSION OF SA & ANOR
[2011] SASCFC 14
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Vanstone)
15 March 2011
ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS - CERTIORARI - GROUNDS FOR CERTIORARI TO QUASH - EXCESS OR WANT OF JURISDICTION - GENERALLY
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - JURISDICTIONAL MATTERS
INDUSTRIAL LAW - SOUTH AUSTRALIA - INDUSTRIAL RELATIONS COMMISSION - JURISDICTION - OTHER MATTERS
INDUSTRIAL LAW - SOUTH AUSTRALIA - APPEALS AND REFERENCES - FINALITY OF DECISIONS - DECISIONS OF INDUSTRIAL RELATIONS COMMISSION
Application for judicial review of a decision of the Full Commission of the Industrial Relations Commission – whether Full Court has jurisdiction to hear the challenge to the decision – whether Full Commission mistakenly denied the existence of jurisdiction – whether a failure to hear and decide an appeal is a determination in excess or want of jurisdiction – whether Full Court can hold that a High Court decision has been overruled by a later High Court decision – whether Full Court should consider whether Full Commission was correct in deciding that it did not have an industrial dispute before it – summons dismissed.
Fair Work Act 1994 (SA) s 4, s 191(1), s 200, s 201, s 202, s 206, s 207; Industrial Conciliation and Arbitration Act 1972 (SA) repealed s 92(3), s 95, s 121; Statutes Amendment (Budget 2010) Act 2010 (SA) s 2(1), s 2(2), s 62, s 63; Fair Work (General) Regulations 2009 (SA) reg 4(c); Supreme Court Civil Rules 2006 (SA) r 200, referred to.
Public Service Association of South Australia v Federated Clerks' Union of Australia, South Australian Branch (1991) 173 CLR 132, applied.
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, discussed.
Jacob v Utah Construction & Engineering Pty Ltd (1966) 116 CLR 200; Garcia v National Australia Bank Ltd (1998) 194 CLR 395; Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 240 CLR 45; Kuru v State of New South Wales (2008) 236 CLR 1, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"excess or want of jurisdiction"

PUBLIC SERVICE ASSOCIATION OF SA INC v INDUSTRIAL RELATIONS COMMISSION OF SA & ANOR
[2011] SASCFC 14
Full Court: Doyle CJ, Duggan and Vanstone JJ

DOYLE CJ: The Public Service Association of South Australia (PSA) wrote to the Industrial Relations Commission of South Australia (the Commission) notifying it of two disputes. In each case the dispute was said to be with “the Government”. The first dispute (letter dated 5 October 2010) related to “security of employment for Public Sector employees”. The second dispute (letter dated 8 October 2010) related to “entitlements for Public Sector employees in respect of both recreation leave loading and long service leave entitlements”. In each case the PSA requested the calling of a voluntary conference under s 200 of the Fair Work Act 1994 (SA) (the Act). That was done by a Commissioner. The Chief Executive of the Department of Premier and Cabinet (the CE) denied that the Commission had jurisdiction arguing that the letters did not notify or give rise to an industrial dispute as defined in the Act.
The Commissioner called a compulsory conference pursuant to s 201 of the Act, referred the matter to the Commission pursuant to s 202 of the Act, and then declined to make any order, holding that the Commission had no jurisdiction. The PSA appealed to the Full Commission pursuant to s 207 of the Act. The Full Commission held in each case that there was no industrial dispute about an industrial matter, and that the Commission did not have jurisdiction: The Public Sector Association of SA Incorporated v Chief Executive Department of the Premier and Cabinet [2010] SAIRComm 11 at [28] and at [31]. The Full Commission dismissed the appeal.
The PSA issued proceedings out of the Supreme Court against the Industrial Commission, relying on r 200 of the Supreme Court Civil Rules 2006. These are proceedings by way of judicial review. The PSA claims an order quashing the decision of the Full Commission. A Judge granted permission to proceed, and the matter was heard by the Full Court.
Jurisdiction of the Supreme Court
Section 206 of the Act provides:
206—Finality of decisions
(1) A determination of the Commission is final and may only be challenged, appealed against or reviewed as provided by this Act.
(2) However, a determination of the Commission may be challenged before the Full Supreme Court on the ground of an excess or want of jurisdiction.
Mr Heywood-Smith QC, counsel for the PSA, submits that the Full Commission acted in excess of its jurisdiction. Mr Stanley QC, for the CE, supported that submission. The Court must satisfy itself that it has jurisdiction. In my opinion it does not. The decision by the High Court in Public Service Association of South Australia v Federated Clerks’ Union of Australia, South Australian Branch (1991) 173 CLR 132 (PSA case) decides that this Court does not have jurisdiction. Mr Heywood-Smith submits that the decision by the High Court in Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 means that the PSA decision is no longer good law, because the effect of Kirk is that s 206 of the Act cannot exclude judicial review by this Court of a decision affected by jurisdictional error. It was not argued in the PSA case that the section under consideration was invalid. I recognise the force of this submission, although I note that at [100] in Kirk the plurality said:
[100]This is not to say that there can be no legislation affecting the availability of judicial review in the State Supreme Courts. It is not to say that no privative provision is valid. Rather, the observations made about the constitutional significance of the supervisory jurisdiction of the State Supreme Courts point to the continued need for, and utility of, the distinction between jurisdictional and non-jurisdictional error in the Australian constitutional context. The distinction marks the relevant limit on State legislative power. Legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power. Legislation which denies the availability of relief for non-jurisdictional error of law appearing on the face of the record is not beyond power.
In the present case the legislation permits this Court to correct decisions by the Full Commission that it lacks the jurisdiction to make, in the sense of going beyond its jurisdiction. But in any event, I consider that it is not open to this Court to hold that the decision in the PSA case has been reversed by Kirk, even though Kirk is based on submissions not considered in the PSA case. Only the High Court can take that step: Jacob v Utah Construction & Engineering Pty Ltd (1966) 116 CLR 200 at 207 Barwick CJ; at 217 McTiernan, Taylor and Owen JJ; Garcia v National Australia Bank Ltd [1998] HCA 48; (1998) 194 CLR 395 at [17] Gaudron, McHugh, Gummow and Hayne JJ; Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; (2002) 240 CLR 45 at [39] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. My reasons for deciding that this Court lacks jurisdiction follow.
A provision along the lines of s 206 has been a long standing feature of earlier legislation relating to the Industrial Commission and to the Industrial Court. In relation to the Industrial Court, s 191(1) of the Act provides:
191—Appeal to Supreme Court
(1) An appeal lies to the Supreme Court from a judgment, order or decision of the Full Court if—
(a)the appeal is based on an alleged excess or deficiency of jurisdiction; or
(b)the Supreme Court grants permission to bring the appeal.
The Industrial Conciliation and Arbitration Act 1972 (SA) (1972 Act) was the predecessor of the Act. At the time it was repealed, s 95 of that Act provided:
Decision to be Final
95.     Except as is provided by this Act –
(a)     every award or decision of the Commission is final and no such award or decision can be removed to any other court;
and
(b)     no award, decision or proceeding of the Commission can be challenged, appealed against, reviewed, quashed or called in question except on the ground of excess or want of jurisdiction.
Section 92(3) protected a decision of the Full Court of the Industrial Court from review “except in proceedings before the Full Court of the Supreme Court founded on an alleged excess or want of jurisdiction”.
The PSA case involved a consideration of s 95 of the 1972 Act. The PSA had applied to the Registrar under s 121 of the 1972 Act for registration of an alteration to its Rules. The Registrar had power to refuse the application if certain prescribed conditions were satisfied. A significant aspect of the PSA case is the conclusion by all members of the High Court that the decision to be made by the Registrar did not involve the exercise of an “unstructured discretion”: Brennan J at 136-140, Deane J at 146, Dawson and Gaudron JJ at 161 and McHugh J at 163.
The Registrar registered the alteration. The Federated Clerks’ Union applied to the Full Commission for leave to appeal: Brennan J at 138. The Full Commission refused leave to appeal. All members of the High Court held that the Full Commission misinterpreted the issue that arose on the application for leave to appeal. The Full Commission treated the issue as being whether it was arguable that the Registrar had erred in the exercise of a wide or unstructured discretion. In fact, the Full Court had to rehear the matter and form its own opinion on the matters considered by the Registrar: Brennan J at 138-139. Brennan J said at 140:
Misconceiving the nature of the jurisdiction which the F.C.U. and the A.S.W.U. were seeking leave to invoke, the Full Commission applied an erroneous test in refusing leave to appeal. It should have ascertained whether there was a reasonably arguable case that the Registrar had wrongly decided the issues arising under any of the paragraphs in s. 121(5).
Footnote omitted
Accordingly, the Full Commission had refused leave to appeal without considering the issue raised by the application for leave to appeal. On this point see also Deane J at 146, Dawson and Gaudron JJ at 160, McHugh J at 164.
All members of the High Court, except McHugh J, agreed that the Full Commission had failed to exercise its jurisdiction. A passage from the reasons of Dawson and Gaudron JJ at 160 summarises their approach. They said at 160:
The issues raised when it is complained that necessary issues have not been decided, and when it is asserted that, had they been decided, the result might have been different, are different from the issue that arises when it is contended that a discretionary decision is wrong. The Commission considered only whether leave to appeal should be granted to raise the latter question and, thus, failed to deal with the question whether leave should be granted to raise the different issues presented by the applications. To that extent, the Commission failed to exercise the jurisdiction conferred upon it by s. 104 of the Act.
See also Brennan J at 144 and Deane J at 153. McHugh J held that the error made by the Full Commission was an error within jurisdiction: at 166.
That left the issue of whether the Full Commission’s decision was founded on “excess or want of jurisdiction”. Brennan J said at 142:
Judicial review on the ground of excess or want of jurisdiction is available when a body purportedly acting in exercise of jurisdiction has no jurisdiction to act in the particular way. Judicial review on that ground stands in contrast with judicial review on the ground of a wrongful failure or refusal to exercise jurisdiction. In the former case, there is no jurisdiction to exercise; in the latter, there is jurisdiction but no exercise of it. The exception in s. 95(b) covers the former case; there is no acceptable canon of construction by which it can be extended to cover the latter case. Thus, s. 95(b) appears to permit erroneous assumptions of jurisdiction to be checked by judicial review, but not erroneous refusals to exercise jurisdiction.
But that was not the end. The issue before the High Court was the refusal of leave to appeal to the Full Commission. The Full Commission had not heard the appeal. It did not get to that point. The difference that that made appears from the following passage from the reasons of Brennan J at 143:
However, the relevant focus of s. 95 in this case is not on the Full Commission's failure to entertain a substantive appeal but on the order refusing leave to appeal. That is the order which was judicially reviewed by the Supreme Court and, if the Supreme Court's intervention is to be upheld, the Full Commission's jurisdiction to make that order must be open to attack on the ground of excess or want of jurisdiction.
Brennan J held that the order refusing leave to appeal was founded on an excess or want of jurisdiction. The Full Commission had no jurisdiction to refuse leave to appeal and to dismiss the application to it: at 144. Referring to the order made by the Supreme Court (the order the subject of appeal to the High Court) he said at 144-145:
The foundation of these orders is that, by reason of the jurisdictional error, the Full Commission had no jurisdiction to make the order it did. The orders in the nature of certiorari were therefore founded on excess or want of jurisdiction. They were validly made.
I understand his Honour has decided that the Full Commission acted in excess of its jurisdiction because it made an order refusing leave to appeal when it had no jurisdiction to do so, not having considered the issue posed by the application for leave to appeal.
Dawson and Gaudron JJ drew the same distinction between the failure to hear the appeal and the refusal of leave to appeal. They said at 161:
The Commission's refusal of leave to appeal cannot be characterized as a mere refusal or failure to exercise jurisdiction. The jurisdiction of a court is exercisable only when it is called upon to take action. The same is true of a body that is required to act judicially. Thus, where a court or tribunal determines some matter or issue which it was not called upon to determine, the determination is one which is beyond its jurisdiction.
Because the applications for leave to appeal raised the question whether, in the circumstances, the Registrar had a discretion, which question could not be answered until the "conveniently belong" question was determined, they did not call for the determination, at least at that stage, of any question as to the correctness of a discretionary decision. Rather, the purport of the applications was that that question could not then be determined. Even if the applications for leave to appeal raised an issue concerning the correct exercise of a discretion which the Registrar might or might not turn out to have, that point was not reached. By determining that issue when it did, the Commission was ahead of itself and thus acted in excess of jurisdiction. …
Footnote omitted
On this issue Deane and McHugh JJ dissented. Deane J said (at 153) to the extent that the attack went to jurisdiction:
It is on the ground that, in deciding whether to grant or refuse leave to appeal, the Commission failed to appreciate the extent of the jurisdiction which it would be called upon to exercise if leave to appeal were granted. Even if the appeal stage had been reached and the Commission had disposed of the appeal on a mistakenly narrow view of its function, there would not have been an excess or want of jurisdiction. There would have been a failure fully to exercise jurisdiction which was possessed.
McHugh J held (at 165) that any error was an error within jurisdiction.
The distinctions drawn are subtle. But it emerges from this decision that the failure to hear and decide the appeal, had the matter got to that stage, would have been a mere failure to exercise jurisdiction, and would not have been founded on an excess or want of jurisdiction. On the other hand, to dismiss the application for leave to appeal without considering the question posed by the application was to act without or in excess of jurisdiction. This was because there was no power to refuse the application for permission to appeal in the manner in which that was done.
In the present case there was no need for, nor application for, permission to appeal to the Full Commission. The Full Commission heard and dismissed the appeal. If the submissions by Mr Heywood-Smith are correct, it erred in doing so, and has failed to exercise its jurisdiction under s 207 of the Act. Mr Heywood-Smith submits that the Full Commission mistakenly denied the existence of jurisdiction and had no jurisdiction to dismiss the appeal. But to accept that submission would be to undermine the distinction drawn by the High Court in the PSA case. A failure or refusal to entertain an appeal, based on an erroneous conclusion that there is no jurisdiction to entertain the appeal, will usually result in an order either striking out or dismissing the appeal. To say that the making of that order changes the decision from a decision involving a failure to exercise jurisdiction to a decision involving an excess of jurisdiction is to deny the very distinction that the High Court drew in the PSA case. Accordingly, I do not accept the submission. Nor do I accept the submission by Mr Stanley that ordinarily to decide a question of law in a manner contrary to law will result in a decision made in excess of jurisdiction.
For those reasons I conclude that even if the submissions by Mr Heywood-Smith on the substance of the matter are correct, the Full Commission merely failed to exercise its jurisdiction. The decision that it made cannot be challenged. The result is inconvenient but not irrational. This Court has power to correct a decision that goes beyond the jurisdiction of the Full Commission. There are reasons of policy that might support taking a different approach to a decision that is nothing more than an erroneous failure to exercise jurisdiction.
For those reasons I consider that the Court should refuse to make the orders claimed.
Was the Full Commission correct?
Usually an intermediate court of appeal, such as this Court, should determine all issues argued by the parties. This avoids the possibility of the High Court, if it grants special leave to appeal, having to decide issues not considered by the intermediate court of appeal or alternatively having to remit the matter for a further hearing: see Kuru v State of New South Wales [2008] HCA 26; (2008) 236 CLR 1 at [12]. For that reason ordinarily I would now decide whether the Full Commission was correct in deciding that the matters before it did not involve or give rise to an industrial dispute.
However, there are reasons for not doing so. If this Court were to decide that the Full Commission was correct, the Court would nevertheless order that the summons be dismissed, because the Court has no jurisdiction to grant the relief sought. If this Court were to decide that the Full Commission was incorrect, and that it had an industrial dispute before it, this Court would still dismiss the summons because it has no jurisdiction to make orders giving effect to its opinion. That would give rise to an awkward situation. The decision of the Full Commission would stand, but this Court would have expressed an opinion, not essential for its decision, either agreeing or disagreeing with the decision of the Full Commission. The Commission would remain unable to deal with the dispute because the decision of the Full Commission would stand. In short, whether this Court agrees or disagrees with the opinion of the Full Commission, the Commission will not be able to deal with the alleged industrial dispute. The Commission will be able to deal with the alleged industrial dispute only if the High Court decides that this Court has jurisdiction to entertain the challenge to the decision by the Full Commission, and either the High Court or this Court then determines that the Full Commission was wrong.

That of itself is not decisive. The situation might be so pressing that the Full Court should indicate its opinion, in the hope that if the matter were to be taken to the High Court all issues can be disposed of in one hearing by that Court. In the present case such circumstances are not present. The first alleged dispute relates to a statement by the Treasurer, relating to the budget for the 2010/2011 year, to the effect that voluntary separation packages would be offered to Public Sector employees over the coming 12 months, but that if the target reduction in employee numbers was not achieved, the Government would reconsider an existing policy under which there were to be no forced redundancies in the Public Sector. The PSA claims, with some reason, that if forced redundancies were to be implemented, this would be a breach of the SA Government Wages Parity (Salaried) Enterprise Agreement 2010 (the EA) entered into on 14 January 2010 between the PSA and other parties, including the CE. There is no need to go into details at the moment. The EA provides that there will be no forced redundancy for Public Sector employees, and that re‑negotiation of the EA will occur not earlier than 1 January 2012.
The CE submits that no industrial dispute arises from this statement by the Treasurer. First, the Treasurer’s statement reflects nothing more than a possible reconsideration at an unspecified time in the future, which reconsideration might or might not occur and might or might not result in a change of approach. The CE submits that in any event nothing will occur until about September 2011. More significantly, the CE submits that under the Act he is the employer of Public Sector employees. Section 4(1) of the Act defines “employer” as follows:
employer means—
(a) for public employees—the body or person (not being a Minister) declared by regulation to be the employer of the employees;
(b) for other employees—a person who employs the employees for remuneration in an industry under a contract of employment.
By reg 4(c) of the Fair Work (General) Regulations 2009 (SA) the CE is declared to be the employer of public employees for the purposes of the Act. The first dispute notified to the Commission is based on a statement by the Treasurer. The CE has said nothing on the topic. The CE does not deny that he is subject to direction by the Premier, and would act in accordance with lawful directions and policies of the Government, including when acting as employer for the purposes of the Act, and in relation to the EA. But his point is that the CE is the employer, not the agent of the employer. The Treasurer’s speech is not action taken by the CE. Accordingly, the CE submits, in relation to the first dispute there is no dispute between the CE as employer and Public Sector employees.
This is an issue of considerable significance for Public Sector employees. It gives rise to a situation that might fairly be described as artificial. There is a gap between the employer and the making of decisions on matters affecting the employees.
But for my purposes the pertinent point is that this Court cannot authoritatively resolve the matter at this stage. There are reasons why it might be better not to express a non-binding opinion at this stage. While the PSA and Public Sector employees are understandably concerned about the situation, it is not a case of urgency, and can be resolved satisfactorily only if, on my approach, the High Court determines that this Court has jurisdiction to entertain the challenge to the decision by the Full Commission.
For those reasons I have concluded that in relation to the first dispute this Court should not express an opinion, and in particular should not express an opinion, in relation to either alleged dispute, on the impact of the status of the CE in deciding whether or not there is an industrial dispute.
Most of what I have said applies to the second alleged industrial dispute. But there is a further factor here. The second alleged dispute relates to leave loading (additional payments made while an employee is on leave) and to long service leave entitlements. Legislation to give effect to the proposed changes to the terms and conditions of employment of Public Sector employees has been enacted: Statutes Amendment (Budget 2010) Act 2010 (SA) (the Budget Act): see s 62 relating to long service leave entitlements and s 63 relating to leave loading. The Budget Act has been assented to. Section 62 will come into operation on 1 July 2011: s 2(2). Section 63 will come into force on a date to be fixed by proclamation: s 2(1). It does not follow from this that there is nothing that the Commission could do if this matter gives rise to an industrial dispute. However, its scope for effective action is significantly and perhaps decisively limited by the circumstance that the proposed changes have been enacted. I cannot see any basis for thinking that this matter is urgent.
What I have said so far is directed to the position of the parties, and in particular to the position of Public Sector employees. But it explains why, bearing in mind the undesirable aspects of this Court indicating a non-binding opinion on the correctness of the Full Commission’s decision, it is appropriate in all the circumstances to decline to express such an opinion, recognising that if the High Court decides that this Court has jurisdiction to decide the challenge to the Full Commission’s decision, the matter will probably be remitted to this Court for that purpose.
There is a further issue that I should mention. The alleged disputes arise from statements made by the Treasurer in Parliament when speaking to the Budget Act. There is a question of whether the use made of the Treasurer’s statements, or the proposed use, would involve an infringement of the privileges of Parliament. Neither party argued that it did. Mr Heywood-Smith eschewed any reliance on statements made by the Treasurer in Parliament. But the fact is, the material before the Court is based on those statements. There is a slight air of unreality to this, because the relevant proposals by the Treasurer have been canvassed in the media, commented on outside Parliament by the Treasurer, have been the subject of public rallies by the PSA and Public Sector employees, and so have a currency going beyond anything said in Parliament. And as to the second alleged industrial dispute, the Budget Act speaks for itself. But as to the first alleged dispute, the argument that the alleged dispute is hypothetical and “temporally non-specific” is based on what the Treasurer said in Parliament, and, as far as the material before this Court goes, on nothing else. It may be that these matters have achieved such currency within the community that this Court can proceed on the basis that there is no need to rely upon what the Treasurer said in Parliament, but that is yet to be determined. I have referred to this matter so that this aspect of the case is not overlooked.
Orders
For the reasons indicated, I would dismiss the summons on the ground that this Court lacks jurisdiction to make the orders claimed.
DUGGAN J: I would dismiss the summons for judicial review. In my view this Court lacks jurisdiction to make the orders sought. I agree with the reasons of the Chief Justice.
VANSTONE J: I agree that the summons should be dismissed for the reasons given by the Chief Justice.