R v Tasmanian Industrial Commission - [2015] TASSC 54

[2015] TASSC 54

COURT: SUPREME COURT OF TASMANIA

CITATION: R v Tasmanian Industrial Commission [2015] TASSC 54

PARTIES:  THE QUEEN
  v
  TASMANIAN INDUSTRIAL COMMISSION;

ex parte THE MINISTER ADMINISTERING THE STATE SERVICE ACT 2000

FILE NO:  1814/2015
DELIVERED ON:  19 November 2015
DELIVERED AT:  Hobart
HEARING DATE:  19 November 2015
JUDGMENT OF:  Estcourt J

CATCHWORDS:

Industrial Law – Tasmania – Industrial Commission – Jurisdiction and powers – Whether President has power to refer application pursuant to s 29(1) Industrial Relations Act 1984 to Full Bench of Tasmanian Industrial Commission.

Aust Dig Industrial Law [3380]

Administrative Law – Prerogative writs and orders – Generally – Provision in judicial review legislation prohibiting issue of prerogative writs – Orders in lieu of prerogative relief having similar effect still available under Rules of Practice – Supreme Court Rules 2000, r 627(2).

Industrial Relations Act 1984 (Tas), s 29(1).
Judicial Review Act2000 (Tas).
Tasman Quest Pty Ltd v Evans (2003) 13 Tas R 16; Kirk v Industrial Court of New South Wales (2012) 239 CLR 531; Duncan v Independent Commission Against Corruption [2015] HCA 32; Krulow v Glamorgan Spring Bay Council [2013] TASFC 11, considered.
Aust Dig Administrative Law [1194]

REPRESENTATION:

Counsel:
           Applicant:  No appearance
           Respondent:  No appearance
           Minister administering the
State Service Act 2000:                P Turner
Solicitors:
           Applicant:  No appearance
           Respondent:  Acting Director of Public Prosecutions
           Minister administering the
State Service Act 2000:                Acting Director of Public Prosecutions

Judgment Number: [2015] TASSC 54
Number of paragraphs: 30

Serial No 54/2015
File No 1814/2015

THE QUEEN v TASMANIAN INDUSTRIAL COMMISSION;
ex parte THE MINISTER ADMINISTERING THE STATE SERVICE ACT 2000

REASONS FOR JUDGMENT ESTCOURT J

19 November 2015

On 28 September 2015 the Tasmanian Industrial Commission (TIC), constituted by President Abey, referred an application numbered T14245 of 2014 to a Full Bench of the TIC.
The application was made by the Australian Nursing and Midwifery Federation (Tasmanian Branch) (the Federation) to the TIC pursuant to s 29(1) of the Industrial Relations Act 1984 (the IR Act). It sought a reclassification of an incumbent to the role of Clinical Nurse Specialist Grade 5 under the Classification Structure of the Nurses (Tasmanian Public Sector) Enterprise Agreement 2010.
A dispute about the appropriate classification of a position is an "industrial dispute" as that phrase is defined in s 3 of the IR Act, engaging, as it does, subpar(a)(i) of the definition of "industrial matter". That is to say, it involved a dispute about the mode, terms and conditions of employment.
The prosecutor contends that upon the proper construction of the relevant provisions of the IR Act there is no power in the President of the TIC to refer such an application to a Full Bench.
The prosecutor has made application to this Court for relief in the nature of certiorari as the Judicial Review Act 2000 is not engaged in the case of the decision purported to be made by President Abey.
Whilst s 43 of the Judicial Review Act abolishes the writ of certiorari, this Court retains jurisdiction to grant relief "in the nature of certiorari"; Tasman Quest Pty Ltd v Evans (2003) 13 Tas R 16, per Blow J (as he then was) at [8]–[9], Crawford J (as he then was) and Slicer J agreeing.
As has been pointed out to me by counsel for the applicant, Mr Turner, in his written submissions, the position has, since Tasman Quest, been made plain beyond contention by the High Court. In Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) said at [100]:
"Legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power".
More recently still, in Duncan v Independent Commission Against Corruption [2015] HCA 32, Gageler J said at [35]:
"It is … impossible for a State Parliament to impose limits upon the administrative… authority of a body which it sets up with the intention that any excess of that authority means invalidity and yet, at the same time, to deprive the Supreme Court of that State of authority to declare and enforce the limits it has set."
On 21 September 2015 the Associate Judge made an order nisi in the present proceedings. The applicant now asks that the order nisi be made absolute and that the order made by President Abey to refer the application to the Full Bench of the TIC be quashed.
The TIC has filed a submitting appearance.
The Federation's solicitors have advised the Court that the Federation does not wish to be heard.
Mr Turner has fully and fairly, it seems to me, articulated the arguments for and against the contention that President Abey had power to refer the application to a Full Bench.
Indeed those arguments had been canvassed in detailed written submissions made to President Abey which were annexed to the affidavit of Kerryl Leslie Grey dated 29 September 2015 which was read on the hearing before me.
It is not necessary for me to canvass those arguments however, because, as will appear, I am persuaded by a contention made to me on behalf of the applicant which was not put to President Abey and, obviously, does not appear in the written submissions before him.
Mr Turner's contention is as follows:
(a) The Full Bench has only the powers conferred on it by the IR Act.
(b)There is nothing in the IR Act which empowers the Full Bench to make any order, or otherwise to quell the dispute the subject of the application (or, more correctly, to determine the industrial dispute).
(c)Section 31 of the IR Act gives power to a commissioner presiding at a hearing under s 29 of the Act to make orders.
(d)Any order of a commissioner may be made the subject of appeal to the Full Bench pursuant to s 70(1)(b) of the IR Act.
(e) The powers of the Full Bench on such an appeal are contained in s 71(13) of the IR Act.
Section 13(1) of the IR Act provides as follows:
"13 Exercise of powers and jurisdiction of the President and the Commission
(1) The President has the jurisdiction expressly conferred on him by this Act and, in the exercise of that jurisdiction, he constitutes the Commission and he has, and may exercise, such powers of the Commission as may be necessary or appropriate for that purpose."
Section 15(1)(b) and (d) of the IR Act provides as follows:
"15 General functions and powers of President
(1) Subject to this section, the President shall –
(b)determine whether matters arising under this Act should be referred to a Full Bench;
…
(d)allocate for hearing and determination by a Commissioner applications in respect of industrial disputes."
Section 21(1) of the IR Act provides as follows:
"21 Procedure of Commission and associated matters
(1) Subject to this Act, the Commission may regulate its own procedure."
Section 21(2)(n) of the IR Act provides that the Commission may:
"(n)generally give all such directions and do all such things as are necessary or expedient for the expeditious and just hearing and determination of that matter."
Section 29(1) of the IR Act provides as follows:
"29 Hearings for settling disputes
(1) An organization, employer, employee or the Minister may apply to the President for a hearing before a Commissioner in respect of an industrial dispute." (Emphasis added.)
Section 29(2) of the IR Act provides as follows:
"(2) The President must –
allocate to a Commissioner for hearing an application made under this section." (Emphasis added.)
Section 31(1) of the IR Act provides as follows:
"31 Orders arising from hearings
(1) Subject to this section, where the Commissioner presiding at a hearing under section 29 is of the opinion, after affording the parties at the hearing a reasonable opportunity to make any relevant submissions and considering the views expressed at the hearing, that anything should be required to be done, or that any action should be required to be taken, for the purpose of preventing or settling the industrial dispute in respect of which the hearing was convened, that Commissioner may, by order in writing, direct that that thing is to be done or that action is to be taken." (Emphasis added.)
Section 70(1)(b) of the IR Act provides as follows:
"70    Rights of appeal
(1)     An appeal may be made to the Full Bench against –
(b)an order made by a Commissioner under section 31(1) after a hearing relating to an industrial dispute in respect of the mode, terms or conditions of employment or any termination of employment, including termination resulting from redundancy, or long service leave, or breach of an award or a registered agreement by –
(i)   the party who applied for the hearing; or
(ii)   the party to whom the order relates; or
(iii) the Minister … ." (Emphasis added.)
Section 71(13) of the IR Act provides as follows:
"(13) On the hearing of an appeal, a Full Bench may do one or more of the following:
(a) confirm, revoke or vary the award or decision appealed against;
(b)make an award or decision dealing with the subject-matter of the award or decision appealed against;
(c)direct the Commissioner who made the award or the Commissioner or Registrar whose decision is appealed against, or another Commissioner, to take further action to deal with the subject-matter of the award or decision in accordance with the directions of the Full Bench." (Emphasis added.)
The point that is laboured by Mr Turner is that it can be clearly seen from the sections of the IR Act set out above that there is no mechanism or power contained in any of those provisions by virtue of which a Full Bench to which an application made under s 29(1) was referred by the President could make any order in relation to it.
That is to say, the submission that Mr Turner makes is that the powers of the Full Bench are confined to making orders in respect of appeals against decisions of commissioners to whom applications in respect of industrial disputes were allocated by the President. I accept that submission. The Full Bench of the TIC is a creation of statute, and it is trite to say that it has no powers beyond those conferred on it by the IR Act. The only person capable of hearing an industrial dispute at first instance is a commissioner sitting alone.
To my mind, such a construction of the IR Act cannot be gainsaid. It would, as Mr Turner submits, be absurd to construe the procedural powers of the President as somehow including a power to refer an application under s 29(1) of the IR Act to the Full Bench when the Full Bench has no power to make orders such as those that may be made by a Commissioner under s 31(1).
It would be equally absurd to suggest that the President might simultaneously allocate an application to more than one commissioner. The scheme of the Act is patent. Commissioners hear applications, and the Full Bench hears appeals against decisions made by those commissioners. In any event, President Abey had no such simultaneous allocation in mind. His order or direction that the application be referred to a Full Bench was expressed so as to demonstrate clear reliance upon his power to do so pursuant s 15(1)(b) of the IR Act.
It is clear, in my view, that the relevant provisions of the IR Act cannot be construed as conferring such a power on the President of the TIC in the case of applications under s 29(1) of the Act, President Abey erred in the present case by referring application T14245 of 2014 to a Full Bench. That error is a clear example of a jurisdictional error; Krulow v Glamorgan Spring Bay Council [2013] TASFC 11 at [98]-[103].
The order nisi should be made absolute. I will hear counsel as to the terms of the order absolute.