R v Watling, R J; Ex Parte

[1998] TASSC 141

141/1998

PARTIES:  R
  v
  WATLING, R J

HUON FOOD PROCESSORS PTY LTD; ex parte

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M221/1998
DELIVERED:  18 November 1998
HEARING DATE/S:  12 November 1998
JUDGMENT OF:  Underwood J

CATCHWORDS:

Statutes - Acts of Parliament - Operation and effect of statutes - Retrospective operation - Amending acts - Not to affect rights or liabilities fixed by reference to past events - Conferring jurisdiction with respect to existing rights and liabilities - Procedural only.

Minister for Home and Territories v Teesdale Smith and Others (1924 - 1925) 25 CLR 120, applied.
Dowler v Princes Securities Pty Ltd [1971] 1 SASR 578, followed.
Industrial Relations Act 1984 (Tas), s29(1A).
Aust Dig Statutes [76]

REPRESENTATION:

Counsel:
             Prosecutor:  A R Spence
             Respondent:  P W Turner
             Minister for Justice & Industrial Relations:   P W Turner
Solicitors:
             Prosecutor:  Page Seager
             Respondent:  Director of Public Prosecutions
             Minister for Justice & Industrial Relations:   Director of Public Prosecutions

Court Computer Code:  
Judgment ID Number:  141/1998
Number of pages:  5

Serial No 141/1998
File No M221/1998

THE QUEEN v R J WATLING,
ex parte HUON FOOD PROCESSORS PTY LTD

REASONS FOR JUDGMENT  UNDERWOOD J

18 November 1998

This is the return of an order nisi for a writ of prohibition.  The prosecutor, Huon Food Processors Pty Ltd, seeks an order prohibiting Commissioner R J Watling of the Tasmanian Industrial Commission, from determining two applications for a hearing in respect of an industrial dispute.  The applications were made by Elizabeth Ann Rickards and her husband, Robert John Rickards, pursuant to the Industrial Relations Act 1984, s29(1A).

The facts

Two affidavits were read on the return of the order nisi.  There was no dispute about the evidence they contained.  Mrs Rickards, with the help of her husband, carried on the business of Huon Heritage Desserts, which manufactured baked fruit crumbles for distribution on the wholesale market.  In October 1996, a consortium of business people purchased this business from Mrs Rickards.  The purchase was completed in December 1996 and thereafter the business was carried on by the prosecutor.  As part of the purchase agreement, Mrs Rickards held 10 per cent of the shares of the prosecutor and was to become one of its directors. 

The other directors of the prosecutor wanted Mrs Rickards and her husband to stay in the business, so it was agreed that she would be employed as "a consultant" and be paid $400 per week.  Mr Rickards was employed on a casual basis.  It seems that, pursuant to this arrangement, Mrs Rickards and her husband continued to work in the business, more or less in the same way as they had done before it was purchased by the prosecutor.  Mrs Rickards claims that she worked many hours in the business and her husband also claims that he worked many hours of overtime.  Some time in the early part of this year, relations between Mrs Rickards and the other directors of the prosecutor soured.  There were arguments about unpaid wages, the management of the business and the like.  For the purposes of these proceedings, it is unnecessary to refer to any of the facts that gave rise to these arguments.  Matters came to a head on 5 May 1998 when both Mr and Mrs Rickards terminated their contracts of employment.

Mr and Mrs Rickards then turned their attention to the provisions of the Baking Industry Award 1996 concerning pay, allowances and superannuation.  It was common ground on the return of the order nisi that the provisions of this Award applied to the prosecutor's employment of both Mr and Mrs Rickards.  Calculations were done and in result, Mrs Rickards worked out that by virtue of the relevant provisions of the Award, she was entitled to recover $13,169.40 from the prosecutor.  In the case of Mr Rickards, the sum was $24,468.62.

Neither Mr nor Mrs Rickards asked the prosecutor for payment in accordance with the Award.  Instead, on 10 July 1998, Mr and Mrs Rickards, by their solicitors, each made an application for a hearing in respect of an industrial dispute. By this stage, the parties, by their solicitors, were exchanging rather acrimonious correspondence in which allegations of bad faith were made.

Proceedings in the Tasmanian Industrial Commission

The applications were served on the prosecutor.  Notice of hearing for 12 August 1998 was issued.  On 7 August 1998, counsel for the prosecutor, Mr Spence, wrote to the Commission advising that at the hearing, he intended to argue that the Commission had no jurisdiction to determine the applications and he set out the bases on which he rested this argument.

The hearing commenced before the respondent as scheduled on 12 August 1998.  Mr Spence appeared for the prosecutor.  Mr Willingham appeared for the Minister for Industrial Relations, pursuant to the Act, s27(1) and Mr Baker appeared for Mrs and Mr Rickards.  Just as he had foreshadowed in his letter, Mr Spence submitted that the Commission had no jurisdiction to determine the applications.  Mr Baker and Mr Willingham made contrary submissions.  After hearing these submissions, the respondent said that he intended to proceed with the applications and hear the evidence.  Thereupon, Mr Spence sought an adjournment, as he had instructions to make an application to this Court for prerogative relief in the event of his submissions being overruled.  Mr Baker opposed the application for an adjournment, but it was granted.

Proceeding in this Court

Application for a general order calling on the respondent to show cause why a writ of prohibition should not be issued was made promptly.  The order nisi was issued on 31 August 1998.  It provided that the order be served upon the respondent, the Minister and Mr and Mrs Rickards.  This was duly done.  On the return of the order nisi, the respondent and the Minister appeared by the same counsel, Mr Turner.  He said that the respondent did not wish to make any submissions and would abide the order of the Court.  Neither Mrs nor Mr Rickards appeared.  Consequently, Mr Spence made submissions on behalf of the prosecutor to support the making of an order absolute, and Mr Turner made submissions to the contrary on behalf of the Minister.

The first ground

The order nisi contains two grounds upon which the prosecutor relied for the order it sought.  They are the grounds set out in Mr Spence's letter to the Commission and which he put to the respondent in the Commission.  The first is that:

"The Commissioner has no jurisdiction under the Industrial Relations Act1984 to conduct a hearing in that, by virtue of the non-compliance with clause 14 of the Baking Industry Award there is no industrial dispute within the meaning of the Act."

Before setting out the relevant provisions of the Baking Industry Award 1996, it is necessary to set out some provisions of the Industrial Relations Act. Mr and Mrs Rickards contended that the respondent had jurisdiction to determine their applications by virtue of the Act, s29(1A) which provides:

"29 ¾ (1)   …

(1A)  A former employee may apply to the President for a hearing before a Commissioner in respect of an industrial dispute relating to ¾

(a)  the termination of employment of the former employee; or

(b)  severance pay in respect of employment of the former employee terminated as a result of redundancy; or

(c)  a breach of an award or a registered agreement involving the former employee."

Mr Spence submitted that although the applications related to an alleged breach of an Award, as provided in par(c), no "industrial dispute" relating to any such breach "had arisen or was likely to arise or was threatened or impending".  "Industrial dispute" is defined by the Act, s3(1) in the following terms:

"'industrial dispute'" means a dispute in relation to an industrial matter ¾

(a)  that has arisen; or

(b)  that is likely to arise or is threatened or impending;"

Section 3(1) also defines "industrial matter" but there is no need to set out that definition for it does not bear upon Mr Spence's submission.  The relevant provision of the Baking Industry Award is cl14, "disputes procedure".  It provides as follows:

"The following procedure shall be observed in the resolution of grievances and/or disputes which may arise.

(a)An employee shall first discuss the grievance and/or dispute with the employee's immediate supervisor.

(b)Should the matter remain unresolved following the procedure outlined in subclause (a) the matter shall be referred to the relevant union shop steward who shall take the matter up with the employer.

(c)Should the matter remain unresolved it shall be referred to an official of the relevant union who shall discuss the matter with the employer who may elect to be represented by his or her industrial relations adviser.

(d)Should the above procedure fail to resolve the grievance and/or dispute either party may elect to refer the matter to the Tasmanian Industrial Commission for conciliation and/or arbitration.

(e)Whilst the above procedure is being observed all work shall continue normally without disruption of any kind.

(f)In the event of a stoppage of work through a strike or stop work meeting the plant shall be left in a safe and hygienic condition."

Mr Spence's submissions can be encapsulated as follows:

• no industrial dispute has arisen or is likely to arise because there has been non-compliance with the provisions of the Award, cl14;

• until there has been compliance with cl14, no Commissioner acting reasonably and in accordance with the law, could find that an industrial dispute had arisen or was likely to arise.

  I reject both submissions.  Whether or not an industrial dispute has arisen or is likely to arise or is threatened or impending as set out in the definition of "industrial dispute", is a matter of fact for determination by the Commissioner.  Non-compliance with the disputes procedure set out in the relevant Award may be relevant to the determination of that question of fact.  However, it is not, as was submitted, conclusive of that question of fact.  The statutory definition of "industrial dispute" is not to be construed or read down in the light of the provisions of a single clause in a single Award.  Indeed, as I pointed out to Mr Spence, it seems almost inevitable that a Commissioner will find that a dispute has arisen, otherwise the proceedings before the Commission would not have been resisted by the prosecutor.  Mr Spence submitted that this Court was obliged to construe the Award and upon a proper construction of cl14, ought to come to the conclusion that no dispute has arisen or is likely to arise until there has been compliance with cl14.  As I have said, whether or not an industrial dispute has arisen or is likely to arise is a question of fact.  However, even if constrained to construe cl14, I would not construe it to mean that a dispute is not deemed to arise or likely to arise until there has been compliance with its provisions.  The clause does not so provide.  It may, as was in fact the case at hand, be impossible to comply with cl14 because there was and is no relevant supervisor or union to whom appeal could be made.  Further, as from 5 May 1998, compliance with cl14 was impossible because there was thereafter no master/servant relationship between Mr and Mrs Rickards and the prosecutor.  The first ground is not made out.

The second ground

The second ground relied upon by the prosecutor and set out in the order nisi is:

"The Commissioner has no jurisdiction to conduct a hearing in respect of an industrial dispute insofar as the dispute relates to alleged breaches of the Baking Industry Award 1996, prior to 27 June 1997, being the commencement date of the Act, s29(1A)(c)."

Both the applications before the Commission claimed entitlements pursuant to the Award for the period 21 October 1996 to 1 May 1998. Section 29(1A) was introduced into the Act by the Industrial Relations Amendment Act, No 90 of 1994, s8. As then enacted, s29(1A) gave a former employee the right to apply to the President for a hearing in respect of an industrial dispute relating to the termination of the employment of that employee. The rights of former employees were extended by the enactment of the Industrial Relations Amendment Act, No 18 of 1997, s14. It repealed s29(1A) and replaced it with a new s29(1A). I have already set out this provision. As well as retaining the right to apply for a hearing with respect to an industrial dispute relating to the termination of employment, the amendment gives a former employee the right to apply for a hearing in respect of an industrial dispute relating to severance pay following termination of employment or redundancy and relating to a breach of an Award.

Mr Spence accepted that the applications of Mrs and Mr Rickards fell within the provisions of s29(1A), but submitted that insofar as the claims related to a period before the Act was amended in 1997, the Commission was without jurisdiction. The submission was that to construe the amending Act as conferring jurisdiction to determine the claims insofar as they related to the period before the amendment took effect, would give the Act retrospective operation.

In support of the submission, Mr Spence relied (inter alia) upon the well established proposition enunciated by Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261 at 267:

"The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events."

Mr Spence accepted that the Rickards' rights and the prosecutor's liabilities pursuant to the Award were unaffected by the 1997 amending Act. He also accepted that prior to the amending Act, those rights were enforceable, albeit not in the Tasmanian Industrial Commission. I pause to observe in passing that I do not necessarily accept that prior to the 1997 amendment the Commission had no jurisdiction to deal with claims by former employees, for it is arguable that the Commission had jurisdiction over such persons without recourse to s29(1A) by virtue of the breadth of the definition of industrial dispute and industrial matter. See Newtown Timber & Hardware Pty Ltd v Gurr & Anor (1995 - 1996) 5 Tas R 71 at 97. However, it is unnecessary to pursue that further.

Mr Spence identified the right that his client claimed remained unaffected by the amending statute as:

"The right to be free of the Rickards' claim in the Tasmanian Industrial Commission."

The amending Act did not affect any right or liability of the prosecutor.  The Award determined the rights and liabilities of the parties. The amending Act affected the procedure by which those rights and liabilities could be enforced by vesting jurisdiction in the Industrial Commission.  As the joint judgment observed in Rodway v R (1989 - 1990) 169 CLR 515 at 521:

"But ordinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity.  A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial.  The principle is sometimes succinctly, if somewhat sweepingly, expressed by saying, as did Mellish LJ in the passage cited by Dixon CJ in Maxwell v Murphy, that no one has a vested right in any form of procedure."

The Minister for Home and Territories v Teesdale Smith and Others (1924 - 1925) 25 CLR 120 is directly in point. The relevant legislation invested the High Court with a measure of original jurisdiction to ascertain and compel the observance of rights arising under arbitration awards. It was held that the amendment was a matter of procedure and therefore applied to matters pending at the time of its enactment. In a joint judgment, Isaacs ACJ and Starke J said at 129:

"Awards are not altered, the contracts of the parties to the submission under which the awards are made are not varied ¾ nothing is done but to provide for a judicial recognition of whatever rights exist."

Similarly, the rights and liabilities of the prosecutor and the Rickards were fixed by the Baking Industry Award and the amending Act did no more than provide a forum to ascertain and compel the observance of those rights and liabilities which hitherto were only enforceable in other forums.  In Dowler v Princes Securities Pty Ltd [1971] 1 SASR 578 amending legislation increased the jurisdiction of a lower court. It was held that the increased jurisdiction did not affect any existing rights and accordingly it applied to litigation pending at the time of its enactment.

The Industrial Relations Amendment Act, No 18 of 1997, s14, which expanded the provisions of s29(1A), applies to the whole of the claims of Mr and Mrs Rickards filed in the Tasmanian Industrial Commission. The second ground relied upon by the prosecutor and set out in the order nisi is not made out.

The order nisi is discharged.