Re Harrison
[2015] WASC 247
•21 JULY 2015
RE HARRISON; EX PARTE HAMES [2015] WASC 247
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 247 | |
| Case No: | CIV:2543/2014 | 2 JUNE 2015 | |
| Coram: | BEECH J | 21/07/15 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Declaration that Industrial Relations Commission exceeded its jurisdiction | ||
| B | |||
| PDF Version |
| Parties: | DR KIM HAMES MLA, MINISTER FOR HEALTH MICHAEL MISCHIN MLC, MINISTER FOR COMMERCE COMMISSIONER J L HARRISON, WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSIONER |
Catchwords: | Administrative law Whether Industrial Relations Commission exceeded its powers in registering industrial agreement with provision included by order of the Commission under Industrial Relations Act 1979 (WA) s 42G Industrial relations Industrial agreements Proper construction of industrial agreement Whether term included in agreement by order under Industrial Relations Act s 42G must be with respect to an industrial matter |
Legislation: | Industrial Relations Act 1979 (WA), s 42G |
Case References: | Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 Amcor Ltd v Construction, Forestry, Mining & Energy Union [2005] HCA 10; (2005) 222 CLR 241 AMS v AIF (1999) 199 CLR 160 Attorney General (WA) v Her Honour Judge Schoombee [2012] WASCA 29 Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union v Electrolux Home Products Pty Ltd (2002) 118 FCR 177 Butler v St John of God Health Care Inc [2008] WASCA 174 Director General, Department of Education v United Voice WA [2013] WASCA 287 Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309 Executive Director Department of Education; The Liquor Hospitality and Miscellaneous Union (WA Branch) [2010] WAIRC 00335 Hanssen Pty Ltd v Construction, Forestry, Mining & Energy Union [2004] 84 WAIG 694 Henderson v Pioneer Homes Pty Ltd [No 2] (1980) 43 FLR 276 Kidd v The State of Western Australia [2014] WASC 99 Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 Kucks v CSR Ltd (1996) 66 IR 182 Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd [2014] WASCA 28 Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia [2012] HCA 25; (2012) 249 CLR 398 Red Hill Iron Ltd v API Management Pty Ltd [2012] WASC 323 The Minister for Health v Australian Nursing Federation, Industrial Union of Workers Perth [2014] WAIRC 00818 The Minister for Health v Australian Nursing Federation, Industrial Union of Workers Perth [2014] WAIRC 01235 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
DR KIM HAMES MLA, MINISTER FOR HEALTH
First Applicant
MICHAEL MISCHIN MLC, MINISTER FOR COMMERCE
Second Applicant
AND
COMMISSIONER J L HARRISON, WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSIONER
Respondent
Catchwords:
Administrative law - Whether Industrial Relations Commission exceeded its powers in registering industrial agreement with provision included by order of the Commission under Industrial Relations Act 1979 (WA) s 42G
Industrial relations - Industrial agreements - Proper construction of industrial agreement - Whether term included in agreement by order under Industrial Relations Act s 42G must be with respect to an industrial matter
Legislation:
Industrial Relations Act 1979 (WA), s 42G
Result:
Declaration that Industrial Relations Commission exceeded its jurisdiction
Category: B
Representation:
Counsel:
First Applicant : Mr D Matthews
Second Applicant : Mr D Matthews
Respondent : No appearance
Interested Party : Mr R Hooker
Solicitors:
First Applicant : State Solicitor for Western Australia
Second Applicant : State Solicitor for Western Australia
Respondent : No appearance
Interested Party : Australian Nursing Federation Legal Services
Case(s) referred to in judgment(s):
Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564
Amcor Ltd v Construction, Forestry, Mining & Energy Union [2005] HCA 10; (2005) 222 CLR 241
AMS v AIF (1999) 199 CLR 160
Attorney General (WA) v Her Honour Judge Schoombee [2012] WASCA 29
Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union v Electrolux Home Products Pty Ltd (2002) 118 FCR 177
Butler v St John of God Health Care Inc [2008] WASCA 174
Director General, Department of Education v United Voice WA [2013] WASCA 287
Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640
Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309
Executive Director Department of Education; The Liquor Hospitality and Miscellaneous Union (WA Branch) [2010] WAIRC 00335
Hanssen Pty Ltd v Construction, Forestry, Mining & Energy Union [2004] 84 WAIG 694
Henderson v Pioneer Homes Pty Ltd [No 2] (1980) 43 FLR 276
Kidd v The State of Western Australia [2014] WASC 99
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Kucks v CSR Ltd (1996) 66 IR 182
Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd [2014] WASCA 28
Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia [2012] HCA 25; (2012) 249 CLR 398
Red Hill Iron Ltd v API Management Pty Ltd [2012] WASC 323
The Minister for Health v Australian Nursing Federation, Industrial Union of Workers Perth [2014] WAIRC 00818
The Minister for Health v Australian Nursing Federation, Industrial Union of Workers Perth [2014] WAIRC 01235
- BEECH J:
Introduction
1 The applicants (the Ministers) seek a writ of certiorari quashing a particular clause of an industrial agreement made with the Australian Nursing Federation Industrial Union of Workers (the ANF) and registered by the Industrial Relations Commission (the Commission). The clause prescribes parking fees payable by employees under the agreement when parking at certain public hospitals.
2 The Ministers contend, in broad summary, that:
(1) when exercising its power to include a provision in an industrial agreement to be registered, the Commission can only include provisions with respect to an industrial matter;
(2) the clause in question is not with respect to an industrial matter;
(3) further, the clause purports to apply to an entity that is not an employer, namely the trust that fixes parking fees at Queen Elizabeth II Medical Centre (QEIIMC), and registration is, on that account, beyond power.
Background
3 The facts are not in dispute.
4 In 2010, an industrial agreement was made between the ANF and the Minister for Health. The agreement was registered under s 41 of the Industrial Relations Act 1979 (WA) (the Act). It had a term of three years.
5 By letter of 26 November 2012 from Mr Mark Olson, State Secretary of the ANF, to the Minister for Health, the ANF provided its 'log of claims' for a replacement agreement. One of the claims made was that all ANF members would be provided with safe and secure parking and the parking charges applicable to ANF members would return to the levels applicable as at 1 January 2010, with any future increases to be limited to the Consumer Price Index (CPI) of the previous quarter.1
6 On 4 February 2013, members of the ANF commenced industrial action in relation to the terms and conditions of the replacement agreement. The industrial action took the form of a ban on nurses performing what the ANF described as 'non-nursing duties' at various hospitals.
7 There was some escalation in the industrial action on 18 February 2013. The ANF resolved to close one in five beds and cancel one in five operations and clinical appointments at metropolitan public hospitals.2
8 On 19 February 2013, the Minister for Health made an application to the Commission seeking the Commission's assistance in relation to the industrial action being taken by nurses.
9 At about 10.00 pm on 22 February 2013, the Commission ordered that the ANF cease current industrial action and take no further industrial action whilst negotiations for a new agreement took place with the assistance of the Commission.3
10 After a meeting on Sunday 24 February 2013, the Director General of the Department of Premier and Cabinet, Mr Peter Conran, wrote to Mr Olson making a conditional offer to form the basis of a new agreement to replace the 2010 agreement.4 The terms of the offer included reference to the availability of car parking at Graylands, but otherwise did not deal with the question of car parking and parking fees. Another term of the offer was that if agreement was not resolved in relation to outstanding matters in the log of claims by 30 June 2013, the dispute in relation to those matters would be arbitrated.
11 By December 2013, there were a number of matters on which the parties had not reached agreement.
12 On 3 December 2013, the Minister for Health made an application to the Commission for registration of a replacement industrial agreement.5
13 By the application, the Minister sought to have the WA Health - Australian Nursing Federation - Registered Nurses, Midwives, Enrolled (Mental Health) and Enrolled (Mothercraft) Nurses - Industrial Agreement 2013 (the Agreement) registered by the Commission under s 41 of the Act.
14 Schedule C of the application set out matters in respect of which the parties had agreed to apply to the Commission for orders because they could not reach agreement. Schedule C identified that the parties had not been able to reach agreement on matters identified in 'Document 2 - ANF Claims', and on matters identified in 'Document 3 - DoH [Department of Health] Claims'. The parties sought orders from the Commission on the matters specified within Document 2 and Document 3 on which they could not reach agreement. Schedule C was signed by both parties.
15 Document 2 - ANF Claims included, as cl 67, a clause providing that:
(1) the employer will provide safe and secure parking to all employees that is located within a reasonable distance to the workplace; and
(2) the parking charges applicable to employees as at 1 January 2010 will be reinstated. Increases to these charges will occur each 1 July and will be limited to CPI of the previous quarter as determined by the Australian Bureau of Statistics.
16 Before the Commission, the Minister for Health submitted that the Commission had no jurisdiction to deal with the matter of parking fees because it was not an industrial matter within the definition in s 7 of the Act.6
17 On 30 July 2014, the Commission delivered reasons for decision resolving most of the matters in dispute.7 Commissioner J L Harrison was not persuaded that a provision requiring the Minster to provide safe and secure parking should be included in the Agreement. The Commissioner required the parties to negotiate further in relation to parking fees.8
18 Those negotiations were not successful.
19 Further hearings on the issue of parking fees occurred on 8 October 2014 and 15 October 2014, at which further evidence was called.
20 On 16 October 2014, Commissioner J L Harrison made orders, including an order that the Agreement include various provisions. One of the provisions to be included in the Agreement was cl 67 in the following terms:
[P]arking charges applicable to employees covered by the [Agreement] working at Category A hospitals will be $5.50 per day and shall be increased on 1 July for the life of the [Agreement] based on Australian Bureau of Statistic[s] Consumer Price Index movements for Perth (All Groups) in the previous March quarter.9
21 Category A hospitals include Royal Perth Hospital (Wellington Street), Sir Charles Gairdner Hospital (QEIIMC site), Fiona Stanley Hospital and the Perth Children's Hospital (QEIIMC site).
22 The Commission also ordered that the Agreement be registered as an industrial agreement under s 41 of the Act.
23 In this application the Ministers attack the inclusion of cl 67 in the Agreement, and the registration of the Agreement with cl 67 included in it.
24 On 31 October 2014, the Commissioner delivered reasons for decision relating to the inclusion of cl 67 in the Agreement.10
The Commissioner's reasons
25 The Commissioner set out the effect of the relevant evidence about the process of fixing car parking fees, as follows:11
Ms Parry is the applicant's Acting Manager Metropolitan Access and Parking Department. Ms Parry gave evidence that legislation allows the Department to set parking fee rates at its hospitals. The parking rates in place at public hospitals and the [QEIIMC] campus are then set based on delegated legislation. The Paxon Group was engaged to conduct a review of the Department's parking services in 2013. This review, which included an analysis of parking costs across the Department, shows that the cost of providing parking at Category A hospitals is significantly higher than the fees charged to users.
At RPH [Royal Perth Hospital] the process of staff paying parking fees is applied in the same way to all staff and any change to the RPH parking system to enable different staff parking fee charges would require a new system. The QEII Trust manages the campus at Sir Charles Gairdner Hospital and the applicant has a contract with Capella to provide parking at this hospital based on a predetermined parking fee structure. The parking fees currently paid by employees at Sir Charles Gairdner Hospital are paid using a 'Smart Parker' card. The fees charged to staff using this hospital car park are less than the cost of providing parking and the additional cost of this service is paid for by the WA Government.
26 The Commissioner found that the Commission had jurisdiction to include a clause relating to the issue of parking fees at Category A hospitals in the Agreement. She found that the dispute about the level of parking fees to apply to employees who park at Category A hospitals, and who are subject to the Agreement, was an industrial matter as defined in s 7 of the Act. She explained that conclusion as follows:12
An industrial matter is defined as any matter affecting, relating or pertaining to the work of employees and the duties they undertake. I find that this dispute falls within this definition of an industrial matter as I find that the issue of parking fee rates to be paid by employees arises out of and is related to the work and duties they are required to perform. Some employees working at Category A hospitals can only attend work to undertake their duties using a private vehicle due to the applicant's requirement that employees work shifts covering 24 hours a day, seven days a week. As some employees working at Category A hospitals are required to commence and finish shifts outside standard work timeframes they have no choice but to drive vehicles to work and park close by in the parking facilities provided by the applicant or arranged by the applicant. This issue, which relates to what the appropriate quantum of fees employees are required to pay to attend work when they use the parking facilities provided by or organised by the applicant in the context of the work and duties required of employees to be performed at Category A hospitals, therefore falls within the definition of an industrial matter.
An industrial matter is defined as a matter affecting, relating or pertaining to the salary of an employee. I find that fees employees are required to pay to park at Category A hospitals, which I have found is connected to an employee undertaking his or her normal duties, is an industrial matter as the level of fees employees are required to pay affects and relates to an employee's salary.
An industrial matter is defined as any matter affecting, relating or pertaining to the relationship between employers and employees. I find that this is a dispute which is caught by this definition of industrial matter as the dispute about the parking fees to be charged to employees arises out of, pertains to and has affected the relationship between the applicant and its employees. I find that the rate of increase in parking fees is in the applicant's control and arises due to the actions of the applicant (see Exhibit A1.13, attachment GP12). I find that the applicant's decision to increase parking fees at an accelerated rate has created difficulties and disputation between the applicant and the respondent's members for a lengthy period and culminated in the respondent's members taking industrial action in February 2013 over this and other matters. I find that this disputation and the inability of the parties to reach agreement on the level of fees employees are charged to park at their workplace, which I have already found relates to the work undertaken by employees at Category A hospitals, relates to the relationship between the applicant as employer and its employees.
In Hanssen the Full Bench discussed whether a particular clause fell within the definition of industrial matter. The Full Bench found that a matter of an industrial nature in dispute between the parties which has the qualities of an industrial matter can be an industrial matter as defined even if it is an issue not referred to as an industrial matter in the definition of industrial matter in the Act. The Full Bench stated the following:
'We now refer to paragraph (i) of the definition of "industrial matter", another new paragraph of the definition just as definition (ca) is. In our opinion, this includes a matter of an industrial nature. It was submitted by Mr Le Miere that a matter of an industrial nature can only mean an "industrial matter". That however, would mean that paragraph (i) of the definition of "industrial matter" has no meaning because a matter affecting an industrial matter, whether there is a dispute about it or not, is by definition within jurisdiction. A matter "of an industrial nature" is one having the qualities of an industrial matter as otherwise defined without necessarily being one (see the Macquarie Dictionary, 3rd Edition and the definition of "of or in the nature"). Therefore, a matter of an industrial nature which is wide and inclusive except for some special exceptions actually recited relating to organisations and freedom of association, is a matter which relates to matters arising out of or connected with industry as defined in employers or employees without being the direct sort of matter or the restricted sort of matter which an industrial matter otherwise as defined is. The second and major determining indicator is that such a matter must be the subject of an industrial dispute or the subject of a situation that might give rise to an industrial dispute. Therefore, given the objects of the Act which are directed to providing the means for settlement of disputes, inter alia, if it is sufficient that a matter has as it were some mark of the industrial about it, giving it a quality of the industrial, that enables it to be brought within the jurisdiction of the Commission where it is the subject of an industrial dispute or where it is the subject of a situation that might give rise to an industrial dispute (see paragraph (i) of the definition) [269].' [my emphasis]
An industrial matter is defined as any matter of an industrial nature the subject of an industrial dispute. I find that this is a dispute which has an industrial character and is therefore an industrial matter as defined. It is not in contest and I find that the parties are in dispute about the issue of the fees to be charged at Category A hospitals. I also find that this matter is one which has an industrial quality as parking fee costs incurred by employees, which are set by the applicant, are connected to the relationship between the applicant and its employees given the work the applicant's employees are required to undertake in the industry within which these employees work.
The Ministers argue that the respondent cannot rely on the Full Bench decision of Hanssen to include a non-industrial matter in an industrial agreement as the Full Bench relied on the decision of Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Electrolux Home Products Pty Ltd which was overturned by the High Court in Electrolux. The Ministers submitted that this was so as the High Court determined that the AIRC, and therefore the Commission, is unable to register an industrial agreement containing clauses not pertaining to the relationship between an employer and its employees. In my view the decision of Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Electrolux Home Products Pty Ltd referred to in Hanssen by the Full Bench is not relevant in this instance as I have found the issue in dispute is an industrial matter as defined in the Act and a clause related to this matter can be included in the 2013 Agreement.
27 The Commissioner proceeded to explain her conclusion that parking fees should be fixed in accordance with the clause (cl 67) that she ordered to be included in the Agreement:13
I find that it is appropriate to include a clause containing parking fees to be paid by the applicant's employees parking at Category A hospitals and that the rate of increases to these fees should be less than that proposed by the applicant. I have already determined that the provisions related to the applicant providing safe and secure parking to all employees located within a reasonable distance to the workplace will not be incorporated into the [Agreement] and expressed my reasons for reaching this conclusion. I also noted in my initial reasons for decision that I was concerned about the rate of parking cost increases proposed by the applicant for employees covered by the [Agreement] working at Category A hospitals and these concerns remain. In this context, and when taking into account relevant objects of the Act including s 6(ae), (af) and (c) and s 26 considerations, I find that it is appropriate to include a clause in the [Agreement] which provides that parking fee increases for employees covered by the [Agreement] parking at Category A hospitals should be lower than those proposed by the applicant. I find that the rates I have decided to include in the [Agreement] are appropriate and reasonable. I find that the increases included in the [Agreement] will not place undue financial hardship on employees using the parking facilities at Category A hospitals and I find that the applicant will not be adversely affected in any substantial way by the lower rate of parking fee increases included in the [Agreement]. In reaching this conclusion I take into account that the fees included in the [Agreement] will rise annually during the life of the [Agreement] and that employees parking at Category A hospitals will continue to pay more than some users and less than other employees who park at other hospitals.
28 The Commission then dealt with the submission of the Minister for Health that he was not in control of setting parking fees for QEIIMC. The Commissioner concluded that cl 67 provided what fees were to be paid by employees covered by the Agreement and was binding on the Minister. She stated that how 'How the [Minister] ensures that the fees ... apply to employees using parking facilities at [QEIIMC] is a matter for the [Minister] to negotiate with the [QEIIMC] Trust'.14
Statutory provisions
29 It is convenient to explain the statutory scheme before setting out the Ministers' grounds.
30 The following sections of the Act are relevant.
31 The general jurisdiction of the Commission is conferred by s 23 of the Act. Section 23(1) of the Act provides that subject to the Act, the Commission 'has cognizance of and authority to enquire into and deal with any industrial matter'.
32 Industrial matter is defined in s 7 as follows:
industrial matter means any matter affecting or relating or pertaining to the work, privileges, rights, or duties of employers or employees in any industry or of any employer or employee therein and, without limiting the generality of that meaning, includes any matter affecting or relating or pertaining to -
(a) the wages, salaries, allowances, or other remuneration of employees or the prices to be paid in respect of their employment;
(b) the hours of employment, leave of absence, sex, age, qualification, or status of employees and the mode, terms, and conditions of employment including conditions which are to take effect after the termination of employment;
(c) the employment of children or young persons, or of any person or class of persons, in any industry, or the dismissal of or refusal to employ any person or class of persons therein;
(ca) the relationship between employers and employees;
(d) any established custom or usage of any industry, either generally or in the particular locality affected;
(e) the privileges, rights, or duties of any organisation or association or any officer or member thereof in or in respect of any industry;
(f) in respect of apprentices, these additional matters -
(i) their wage rates and, subject to the Vocational Education and Training Act 1996 Part 7 Division 2, other conditions of employment; and
(ii) the wages, allowances and other remuneration to be paid to them, including for time spent in performing their obligations under training contracts registered under the Vocational Education and Training Act 1996 Part 7 Division 2, whether at their employers' workplaces or not; and
(iii) without limiting subparagraphs (i) and (ii), those other rights, duties and liabilities of them and their employers under such contracts that do not relate to the training and assessment they are to undergo, whether at their employers' workplaces or not;
(g) any matter relating to the collection of subscriptions to an organisation of employees with the agreement of the employee from whom the subscriptions are collected including -
(i) the restoration of a practice of collecting subscriptions to an organisation of employees where that practice has been stopped by an employer; or
(ii) the implementation of an agreement between an organisation of employees and an employer under which the employer agrees to collect subscriptions to the organisation;
[(h) deleted]
(i) any matter, whether falling within the preceding part of this interpretation or not, where -
(i) an organisation of employees and an employer agree that it is desirable for the matter to be dealt with as if it were an industrial matter; and
(ii) the Commission is of the opinion that the objects of this Act would be furthered if the matter were dealt with as an industrial matter;
and also includes any matter of an industrial nature the subject of an industrial dispute or the subject of a situation that may give rise to an industrial dispute but does not include -
(j) compulsion to join an organisation of employees to obtain or hold employment; or
(k) preference of employment at the time of, or during, employment by reason of being or not being a member of an organisation of employees; or
(l) non-employment by reason of being or not being a member of an organisation of employees; or
(m) any matter relating to the matters described in paragraph (j), (k) or (l);
33 Section 24(1) provides:
The Commission has jurisdiction to determine in any proceedings before it whether any matter to which those proceedings relate is an industrial matter and a finding by the Commission on that question is, subject to sections 49 and 90, final and conclusive with respect to those proceedings.
34 Section 49 provides a right of appeal from a decision of the Commissioner to the Full Bench of the Commission where the Full Bench considers that an appeal is in the public interest. Section 90 provides a right of appeal from decisions of the President of the Commission, the Full Bench, or the Commission in Court Session to the Western Australian Industrial Appeal Court on certain limited grounds. These grounds include that the decision is in excess of jurisdiction in that its subject is not an industrial matter.
35 Section 34 of the Act provides as follows:
(1) The decision of the Commission shall be in the form of an award, order, or declaration and shall in every case be signed and delivered by the commissioner constituting the Commission that heard the matter to which the decision relates or, in the case of a decision of the Commission in Court Session, shall be signed and delivered by the Senior Commissioner among the commissioners constituting the Commission in Court Session.
(2) When the members of the Commission in Court Session are divided in opinion on a question, the question shall be decided according to the decision of the majority of the members.
(3) Proceedings before the President, the Full Bench, or the Commission shall not be impeached or held bad for want of form nor shall they be removable to any court by certiorari or otherwise -
(a) on any ground relating to jurisdiction; or
(b) on any other ground.
(4) Except as provided by this Act, no award, order, declaration, finding, or proceeding of the President, the Full Bench, or the Commission shall be liable to be challenged, appealed against, reviewed, quashed, or called in question by any court -
(a) on any ground relating to jurisdiction; or
(b) on any other ground.
37 Section 41 provides, relevantly, as follows:
(1) An agreement with respect to any industrial matter or for the prevention or resolution under this Act of disputes, disagreements, or questions relating thereto may be made between an organisation or association of employees and any employer or organisation or association of employers.
…
(2) Subject to subsection (3) and sections 41A and 49N, where the parties to an agreement referred to in subsection (1) apply to the Commission for registration of the agreement as an industrial agreement the Commission shall register the agreement as an industrial agreement.
(3) Before registering an industrial agreement the Commission may require the parties thereto to effect such variation as the Commission considers necessary or desirable for the purpose of giving clear expression to the true intention of the parties.
(4) An industrial agreement extends to and binds -
(a) all employees who are employed -
(i) in any calling mentioned in the industrial agreement in the industry or industries to which the industrial agreement applies; and
(ii) by an employer who is -
(I) a party to the industrial agreement; or
(II) a member of an organisation of employers that is a party to the industrial agreement or that is a member of an association of employers that is a party to the industrial agreement;
(b) all employers referred to in paragraph (a)(ii),
and no other employee or employer, and its scope shall be expressly so limited in the industrial agreement.
(5) An industrial agreement shall operate -
(a) in the area specified therein; and
(b) for the term specified therein.
...
(8) When a new industrial agreement is made and registered, or an award or enterprise order is made, in substitution for an industrial agreement (the first agreement ), the first agreement is taken to be cancelled, except to the extent that the new industrial agreement, award or order saves the provisions of the first agreement.
(9) To the extent that an industrial agreement is contrary to or inconsistent with an award, the industrial agreement prevails unless the agreement expressly provides otherwise.
38 Section 41A(1)(b) provides, relevantly:
(1) The Commission shall not under section 41 register an agreement as an industrial agreement unless the agreement -
…
(b) includes any provision specified in relation to that agreement by an order referred to in section 42G.
40 Section 42G is of central significance to this application. It provides as follows:
(1) This section applies where -
(a) negotiating parties have reached agreement on some, but not all, of the provisions of a proposed agreement; and
(b) an application is made to the Commission for registration of the agreement as an industrial agreement, the agreement to include any further provisions specified by an order referred to in subsection (2); and
(c) an application is made to the Commission by the negotiating parties for an order as to specified matters on which agreement has not been reached.
(2) When registering the agreement, the Commission may order that the agreement include provisions specified by the Commission.
(3) An order referred to in subsection (2) may only be made in relation to matters specified by the negotiating parties in an application referred to in subsection (1)(c).
(4) In deciding the terms of an order the Commission may have regard to any matter it considers relevant.
(5) When an order referred to in subsection (2) is made, the provisions specified by the Commission are, by force of this section, included in the agreement registered by the Commission.
(6) Despite section 49, no appeal lies from an order referred to in subsection (2).
41 Section 42H provides that the Commission may declare that bargaining between negotiating parties has ended. When that happens, or if, after a notice initiating bargaining under s 42 was given, no bargaining occurred, the Commission has the power, on application by a party, to make an enterprise order. An enterprise order can provide for any matter that might otherwise have been provided for in an industrial agreement between the relevant parties (s 42I). Section 42J sets out the effect of an enterprise order.
The Ministers' application
42 The Ministers apply for a writ of certiorari, a declaration, or both. They advance two grounds for their application. The first asserts that the Commissioner made a jurisdictional error by registering an industrial agreement that contained a provision, namely cl 67, which was not with respect to an industrial matter or for the prevention or resolution under the Act of a dispute, disagreement or question relating to an industrial matter.
43 The second ground is that the Commissioner made a jurisdictional error by registering an industrial agreement containing a provision purporting to apply to an entity that is not relevantly an employer, employee, or organisation or association of either, and which was not a party to the proceedings, namely the QEIIMC Trust, the body which sets the fees for parking at a Category A hospital.
44 Both of the Ministers' grounds are influenced by how cl 67 is to be construed. The parties' submissions invite differing constructions of the clause, which affect the merits of the Ministers' grounds.
45 Consequently, it is convenient to begin with the task of construing cl 67 of the Agreement.
The proper construction of cl 67
46 The Commission's order under s 42G was, relevantly, that one of the provisions to be included in the Agreement, cl 67, was as follows:
[P]arking charges applicable to employees covered by the [Agreement] working at Category A hospitals will be $5.50 per day and shall be increased on 1 July for the life of the [Agreement] based on Australian Bureau of Statistic[s] Consumer Price Index movements for Perth (All Groups) in the previous March quarter.15
47 The parties advance different constructions of that clause.
48 The Ministers submit that cl 67 purports to determine what the applicable parking fees will be.16 The ANF submits that the clause does not go that far. Rather, on the ANF's submission, the clause regulates parking charges as between employer and employee. If and to the extent that charges exceed the prescribed amount, an employee is entitled under the clause to recoup the excess from the employer.17
49 In support of its construction, the ANF submits that an industrial agreement, and the provisions of such an agreement, should be construed in a pragmatic manner that avoids undue technicality.18
50 The general principles relevant to the proper construction of instruments are well-known. In summary:
(1) the primary duty of the court in construing an instrument is to endeavour to discover the intention of the parties as embodied in the words they have used in the instrument;
(2) it is the objectively ascertained intention of the parties, as it is expressed in the instrument, that matters; not the parties' subjective intentions. The meaning of the terms of an instrument is to be determined by what a reasonable person would have understood the terms to mean;
(3) the objectively ascertained purpose and objective of the transaction that is the subject of a commercial instrument may be taken into account in construing that instrument. This may invite attention to the genesis of the transaction, its background and context;
(4) the apparent purpose or object of the relevant transaction can be inferred from the express and implied terms of the instrument, and from any admissible evidence of surrounding circumstances;
(5) an instrument should be construed so as to avoid it making commercial nonsense or giving rise to commercial inconvenience. However, it must be borne in mind that business common sense may be a topic on which minds may differ; and
(6) an instrument should be construed as a whole. A construction that makes the various parts of an instrument harmonious is preferable. If possible, each part of an instrument should be construed so as to have some operation.19
51 These general principles apply in the construction of an industrial agreement.20 The industrial character and purpose of an industrial agreement is part of the context in which it is to be construed.21
52 In Director General v United Voice,22 Buss JA cited with approval the following observations of Madgwick J in Kucks v CSR Ltd23 about the construction of industrial instruments:
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
53 The starting point of the task of construction is the text. The need to avoid a narrow or pedantic approach to construction does not detract from the fact that construction is a text-based activity.
54 In my view, the language of cl 67 distinctly supports the Ministers' construction of it. Clause 67 is expressed in terms that parking charges 'will be' $5.50 per day and 'shall be' increased (in line with CPI). To my mind, that language reflects and reveals an intention to dictate what the applicable parking fees will be. The clause is expressed in a way that purports to compel the outcome of the process of determining these fees.
55 The ANF's construction does not sit easily with the language of cl 67. Nothing in the language of the clause supports a reading of it as intending only to govern the position regarding parking fees as between employer and employee, so that if and to the extent that fees exceed the prescribed amount an employee would be entitled to recoup the excess from the employer. The language of cl 67 is inapt to express such an intention. Additional words would have been appropriate, and required, if that were the intention of the clause.
56 In my view, there is nothing in the other provisions ordered under s 42G to be included in the Agreement that provides support for the ANF's construction. Further, in my view, the same can be said of the provisions of the Agreement more generally.
57 Clause 67 was inserted in the Agreement by the order of the Commission. Following a contested hearing, the Commissioner delivered written reasons for the making of the order to include cl 67. Those reasons provide context informing the proper construction of cl 67.
58 In my view, for the reasons that follow, consideration of the Commissioner's reasons for inserting cl 67 reinforces the Ministers' construction of this clause.
59 In [43] of the reasons, the Commissioner found that it was 'appropriate to include a clause containing parking fees to be paid by the [Minister for Health's] employees parking at Category A hospitals and that the rate of increases to these fees should be less than that proposed by the [Minister]'. The language in which that finding is expressed provides no support for the ANF's construction.
60 The Commissioner rejected a claim by the Minister that logistical issues prevented one group of employees having a different parking fee structure to that of other employees using Category A hospital car parks. The Commissioner found that patrons of the car parks at Category A hospitals already pay varying rates of fees, and that the payment of parking fees varies from individual to individual. It was therefore possible for separate parking fees for nurses using Category A hospitals to be accommodated within that process.24 To my mind that is a clear indication that the Commissioner's intention was that cl 67 would dictate the setting of parking fees, not simply regulate the contractual position as between employer and employee.
61 Finally, the Commissioner dealt with an argument of the Minister for Health that, as the Minister is not in charge of providing parking at QEIIMC, any provision in the Agreement setting parking fees would be of no effect. The Commissioner rejected that submission. She stated that cl 67 was binding on the Minister. She then stated that how the Minister 'ensures that the parking fees as specified by the Commission in [the Agreement] apply to employees using parking facilities at [QEIIMC] is a matter for the [Minister] to negotiate with the [QEIIMC] Trust'.25 It is noteworthy that in dealing with that submission, the Commissioner did not go on to say that if the Minister was unsuccessful in negotiating with the QEIIMC Trust so as to ensure that fees were as specified in cl 67, it would be the obligation of the Minister to pay any excess to employees. Rather, the Commissioner simply stated that it was for the Minister to ensure the outcome that her order dictated.
62 For these reasons, in my view, both the text of cl 67 and the Commissioner's reasons for decision support the construction of cl 67 advanced by the Ministers.
63 The consequence of the Ministers' construction of cl 67 is, as I will explain, that the inclusion of cl 67 and the registration of the Agreement with cl 67 included are invalid. That is an inconvenient consequence. That inconvenient consequence is itself a consideration favouring the ANF's construction.
64 Further, the view is, with respect, open that, on the Ministers' construction, cl 67 does not make much sense, especially as it applies to the QEIIMC site. Again, that is a consideration favouring the ANF's construction.
65 However, in my view, the inconvenient and perhaps surprising consequence of the Ministers' construction does not justify the adoption of the ANF's construction. In my opinion the textual and contextual considerations already identified sustain the Ministers' construction, notwithstanding the considerations to the contrary that I have just outlined. There are limits on how far the meaning of the text can be strained to avoid an inconvenient result. In this case, I do not think the language of cl 67 and of the Commissioner's reasons for including it can bear the meaning invited by the ANF's construction.
66 It is now convenient to turn to the merits of ground 2 in light of that construction of cl 67.
The merits of ground 2
67 The ANF concedes that if the Ministers' construction of cl 67 is adopted, ground 2 succeeds. Indeed, the ANF concedes that on the construction of cl 67 that I have adopted, the Commission's order that cl 67 be inserted in the Agreement is generally invalid, not solely as it relates to hospitals at the QEIIMC site.26 I will return to this latter point.
68 In my opinion, the ANF's concession regarding ground 2 is rightly made. As I have construed it, the Commission's order to insert cl 67 purports to control the fees to be charged for parking at Category A hospitals, including those at the QEIIMC site. The QEIIMC Trust sets the fees at the QEIIMC site. The QEIIMC Trust is not relevantly an employer or employee, and was not a party to the proceedings before the Commission. The Commission had no power to order inclusion in the Agreement of a provision that dictates or purports to dictate the fees to be charged by the QEIIMC Trust for parking by nurses.
69 For these reasons, ground 2 succeeds.
The ANF's further concession
70 As I have said, the ANF's concession as to the invalidity of the order that cl 67 be included in the Agreement goes further than ground 2. The ANF concedes that if the Ministers' construction of cl 67 is adopted, the order for its inclusion was invalid in its application to all Category A hospitals, including those where parking is administered by the Minister for Health.27
71 That concession does not reflect the essence of ground 1. Nor does it precisely reflect the way in which the Ministers' contentions in support of ground 1 were developed in written and oral submissions. In support of ground 1, the Ministers put their case for invalidity on a wider basis. Nevertheless, the ANF's concession can be accommodated into the framework of the Ministers' submissions in support of ground 1 and into ground 1 generally.
72 One element of the Ministers' contentions on ground 1 is their submission that the effect of cl 67 is to purport to dictate the exercise of the power to determine relevant parking fees.28 I accept that submission as to the effect of cl 67.
73 In essence, the ANF concedes that in purporting to dictate the level at which specified parking fees were to be set, rather than simply regulating the position as between employer and employee, the Commission exceeded the bounds of its powers under s 42G and s 41(2). The ANF accepts that the decision-making power to set parking fees cannot be usurped by a provision in an industrial agreement.
74 I accept that concession. In ordering, under s 42G, that a provision be included in an agreement to be registered, and in registering an agreement under s 41(2), the Commission has broad powers. A principal object of the exercise of its powers in this sphere is to ensure that an agreement registered under the Act provides for fair terms and conditions of employment.29 The Commission's powers enable it to regulate the relationship between employer and employee in relation to matters specified by the parties under s 42G(1)(c). However, it is one thing to order inclusion of a provision governing the position regarding payment of or for parking fees as between employer and employee. It is a quite different thing, of a fundamentally different character, to dictate or purport to dictate how those charged with responsibility for fixing parking fees near a place of employment must discharge that responsibility. In my view, the broad powers of the Commission do not extend to that. That conclusion does not depend upon whether cl 67 can or cannot be characterised as being with respect to an industrial matter.
75 For these reasons, to that extent, ground 1 succeeds.
76 Before dealing with the question of the relief that flows from that conclusion, I will explain why I am not persuaded that ground 1 succeeds to any greater extent than that which I have just identified.
Ground 1: the Ministers' contentions
77 The Ministers' oral and written submissions in support of ground 1 may be distilled into the following contentions:
(1) The Commission has power to register an agreement under s 41(2) of the Act only if the agreement is an agreement with respect to an industrial matter or if the agreement is for the prevention or resolution under the Act of disputes, disagreements or questions relating to an industrial matter: s 41(1).
(2) The agreement will be of that character only if each and every provision of the agreement has the character referred to in (1). (I will use the short-hand expression 'industrial matters (etc)' to mean the whole of the phrase used in s 41(1)).
(3) That essential requirement applies equally to any provision that is included in an agreement by an order of the Commission made under s 42G(2).
(4) On a proper construction of the Act, s 34(3) and s 34(4) do not exclude the jurisdiction of this court to determine whether the Commission has acted beyond the bounds of its powers in registering an agreement under s 41(2) that includes provisions specified in an order made under s 42G(2).
(5) In the alternative to (4), if and to the extent that on its proper construction s 34(4) purports to exclude that jurisdiction of this court, it is unconstitutional and invalid.
(6) In undertaking the task of determining whether the Commission has acted beyond the bounds of its powers in registering an agreement that includes provisions specified in an order made under s 42G(2), it is for this court to determine for itself whether each relevant provision of the agreement was with respect to an industrial matter (etc) (although the Ministers do not challenge any of the Commissioner's relevant findings of fact).30
(7) In this case, cl 67 of the Agreement was not with respect to an industrial matter (etc).
78 In light of the conclusions I have already stated, it is not necessary to deal with the merits of all of these contentions. It is enough to explain why I do not accept the Ministers' third contention, and why, if the ANF's construction of cl 67 were adopted, I would not accept the Ministers' seventh contention. I will deal with the fourth, fifth and sixth contentions when I come to the question of relief. First, I will say something about the Ministers' first and second contentions.
The merits of the Ministers' first contention
79 The ANF did not advance submissions against the Ministers' first contention.
80 In Hanssen Pty Ltd v Construction, Forestry, Mining & Energy Union [2004] 84 WAIG 694 [276] the Full Bench of the Commission held that the word 'thereto' in s 41(1) was a reference to 'the Act' earlier in s 41(1), not a reference to 'industrial matters'. Thus, the Full Bench construed s 41(1) to allow the registration of agreements with respect to industrial matters or agreements that relate 'to the prevention or resolution of disputes, disagreements, or questions under the Act', whether or not those disputes, disagreements or questions related to an industrial matter. I respectfully disagree. In my view, the language of s 41(1), read in its context in the Act as a whole, supports the Ministers' first contention. Section 41(1) is to be read as referring to agreements with respect to an industrial matter or for the prevention or resolution under the Act of disputes, disagreements or questions relating to industrial matters.
The Ministers' second contention
81 In Hanssen,31 the Full Bench held that not every provision of an agreement needs to be with respect to an industrial matter in order for the agreement as a whole to be of that character. In that case, the Full Bench drew support from the decision of the Full Federal Court in Automotive Food, Metals, Engineering, Printing & Kindred Industries Union v Electrolux Home Products32. As the Ministers' submissions emphasised,33 that latter decision was subsequently overturned by the High Court in Electrolux Home Products v Australian Workers Union.34
82 Of course, as all parties accept, each statutory scheme must be construed in light of its own language, evident object and context. In this case, it is not necessary to decide the proper construction of the Act as it applies where parties agree on all the provisions of the proposed agreement to be registered. For the purposes of this application, it can be assumed, favourably to the Ministers, that in that situation all provisions of the agreement must be with respect to an industrial matter (etc). That is because I do not accept the Ministers' third contention, to which I now turn.
The merits of the Ministers' third contention
83 I accept some of the steps in the Ministers' submissions in support of their third contention, but not the conclusion said to follow from those steps.
84 I accept that the power of the Commission under s 42G(2) is exercisable only 'when registering the agreement'. I also accept that the reference in subsection (2) to 'the agreement' is a reference to the proposed agreement referred to in s 42G(1). That proposed agreement includes the provisions on which the parties have reached agreement, plus the provisions to be included in it by an order of the Commission on the parties' application as to specified matters on which they had not reached agreement. Thus, the agreement to be registered is not constituted solely by those provisions on which the parties have reached agreement. Rather, it is an agreement containing those provisions, plus the provisions to be inserted by force of an order under s 42G(2). That is clear from the terms of s 42G(1), especially pars (a) and (b). It is also reinforced by the terms of s 41A(1)(b), to which s 41 is expressly made subject.
85 The Ministers also emphasise the distinctive character and consequences of a registered industrial agreement.35 A registered agreement overrides awards (s 41(9)), is not easily varied (s 43) and can be curially enforced (s 83(2)(b)).
86 The Ministers submit that it follows from these aspects of the statutory scheme that each and every provision to be included in an agreement as a result of an order of the Commission made under s 42G(2) must have the character stipulated in s 41(1).
87 For the reasons that follow, I do not accept that contention. In my view, it involves reading a limitation into the generality of the powers of the Commission under s 42G that is not justified by the text, context and purpose of the Act as a whole.
88 In reading the Act as a whole, s 41 and s 42G must, as the Ministers contend, be read together.
89 Whether s 41(2) is to be read as requiring every provision of a proposed industrial agreement, including those inserted by an order under s 42G(2), to be with respect to an industrial matter (etc) must be considered in light of the existence, language and purpose of s 42G. The legislation in the Electrolux case, on which the Ministers place great emphasis, did not have any provision like s 42G.
90 The foundation of the Commission's powers under s 42G is the consent of both parties. Without it, s 42G cannot be invoked.36 The parties' consent limits the scope of the Commission's powers under s 42G. Orders can be made under that section only in relation to matters specified by the parties in their application.37
91 If parties are negotiating towards a proposed industrial agreement, and have reached agreement on some but not all of the provisions of the proposed agreement, each party has a choice whether or not to consent to the making of an application under s 42G(1). That choice arises in relation to each and every specified matter on which agreement has not been reached to be included in the application under s 42G(1). If one party (A) refuses to agree to the inclusion in the application of a particular specified matter on which agreement has not been reached, the other party (B) may agree to proceed under s 42G(1) in respect of any other non-agreed matters, but without the matter which A refuses to include in the application. If B is not willing to proceed in that fashion, then s 42G would not be available. The parties could, in such circumstances, make an application for an enterprise order under s 42I.
92 In this setting, I am not persuaded that s 41 and s 42G should be read as empowering the Commission to make an order including a provision in an agreement, and register an agreement with the included provision, only if the provision is itself of the character referred to in s 41(1). Rather, the power of the Commission to order that provisions be included is a broad and general one, but subject to the limits contained in s 42G(1) and s 42G(3). In my view, the power to register an agreement under s 41(2) is to be read so as to accommodate the breadth of the power in s 42G.
93 For these reasons, I reject the Ministers' third contention.
94 In any event, even if I accepted the Ministers' third contention, that would not lead me to a conclusion of invalidity beyond the scope of the ANF's concession. If, as I have found, the Ministers' construction of cl 67 is adopted, cl 67 is invalid regardless of whether the Ministers' third contention is accepted.
95 If, contrary to my conclusions, the ANF's construction of cl 67 were adopted, then in my view, even if the Ministers' third contention is accepted, cl 67 is nevertheless valid. That is because, on that construction, I see no error in the Commission's finding that cl 67 is with respect to an industrial matter. I proceed to explain that opinion.
Is cl 67 a provision with respect to an industrial matter?
96 For the reasons just explained, this question only needs to be considered on the assumption that the ANF's construction of cl 67 is adopted. On the ANF's construction, cl 67 regulates the position as between employer and employee in the following way. If and to the extent that a parking fee payable by an employee exceeds the prescribed amount, the employer is liable to compensate the employee.38
97 The Ministers accept that in determining whether cl 67 is a provision with respect to industrial matters (etc), the court can act on the Commission's unchallenged findings of fact relevant to that question. For example, the Ministers' submissions did not invite the court's attention to the existence, cogency and facts, if any, to be found from the evidence about the shifts commonly required to be undertaken by employees at Category A hospitals and how that bore on the options available to them for transport to work.39
98 The Commission found that some employees working at Category A hospitals are required to commence and finish shifts outside standard work time frames, with the result that they have no choice but to drive vehicles to work and to park close by in the parking facilities provided or arranged by the Minister for Health.40
99 Under s 41 of the Act, the Commission can only register an agreement as an industrial agreement if it is an agreement with respect to industrial matters (etc). The phrase 'with respect to' is one of wide import.41 Industrial matters include any matter affecting, relating or pertaining to the salary of an employee. In light of the unchallenged findings I have just outlined, the Commission was justified and did not err in finding that the parking expenses incurred by employees who are required, by their shift work, to drive to and park at Category A hospitals, affect and relate to an employee's salary and are, consequently, with respect to an industrial matter.
Relief
100 Section 34(3) and s 34(4) give rise to questions as to what relief is available in circumstances where I have concluded that the Commission exceeded the bounds of its powers.
101 A conclusion that a body exercising statutory power has acted beyond power would conventionally sustain the grant of a writ of certiorari. However, s 34(4) of the Act would appear to exclude such relief. Section 34(3) prohibits proceedings before the Commission being removable to any court by certiorari or otherwise on any ground relating to jurisdiction or any other ground. Further, s 34(4) prohibits any award, order, declaration, finding or proceeding of the Commission being liable to be challenged, reviewed, quashed or called into question by any court on any ground relating to jurisdiction or any other ground. Most, but not all, of what s 34(4) excludes from review or appeal is within the scope of an appeal under s 49 or s 90 of the Act. Those sections permit an appeal against a decision. 'Decision' is defined to include an award, order, declaration or finding. However, a proceeding is caught by s 34(4), as well as s 34(3). A proceeding itself is not the subject of the statutory rights of appeal; only a 'decision' is appellable.
102 In this case, there was no appellable decision by the Commission. The order made under s 42G(2) to include cl 67 in the Agreement is expressly excluded from the right of appeal under s 49.42 The act of registration of an agreement is not an award, order, declaration or finding. No order is necessary for an agreement to be registered.
103 The question of what provisions should be inserted by the Commission in the Agreement under s 42G was a 'proceeding'. There was a hearing at which evidence was called and submissions were made. On the face of it, this falls within the ambit of s 34(3) and s 34(4). Those sub-sections appear to preclude a grant of certiorari. That apparent preclusion raises questions regarding the construction of s 34 and its possible invalidity.
104 The Ministers submit that s 34(3) and s 34(4) should be read down to avoid the invalidity that would result from an attempt by State Parliament to prevent a State Supreme Court from reviewing a decision of an inferior court or tribunal on grounds of jurisdictional error.43 Alternatively, the Ministers submit that, if s 34(3) and s 34(4) are not to be so construed, they are invalid.
105 There seems to me to be considerable force in the Ministers' submissions in these respects. However, it is not, or may not be, necessary to determine whether certiorari should lie in this case. The Ministers also seek a declaration. A declaration is an available curial response to a finding of excess of jurisdiction.44
106 The ANF has indicated that, if a declaration were made, it would act consonantly with the declaration.45 In those circumstances, there is or may be no need for a writ of certiorari.
107 In this light, I propose to make a declaration in appropriately crafted terms. I will give liberty to apply in relation to the issue of a writ of certiorari so that, if the Ministers consider a writ of certiorari to be necessary, they can apply accordingly.
1 Affidavit of Neil Jason Fergus affirmed 4 December 2014, att NJF1.
2 Affidavit of Neil Jason Fergus affirmed 4 December 2014, att NJF2.
3 Affidavit of Neil Jason Fergus affirmed 4 December 2014, att NJF4.
4 Affidavit of Neil Jason Fergus affirmed 4 December 2014, att NJF6.
5 Affidavit of Neil Jason Fergus affirmed 4 December 2014, att NJF7.
6 Affidavit of Neil Jason Fergus affirmed 4 December 2014,att NJF11 and NJF12.
7The Minister for Health v Australian Nursing Federation, Industrial Union of Workers Perth [2014] WAIRC 00818.
8Minister for Health v ANF [2014] WAIRC 00818 [292].
9 Affidavit of Neil Jason Fergus affirmed 4 December 2014, att NJF14.
10The Minister for Health v Australian Nursing Federation, Industrial Union of Workers Perth [2014] WAIRC 01235.
11Minister for Health v ANF [2014] WAIRC 01235 [11] - [12].
12Minister for Health v ANF [2014] WAIRC 01235 [37] - [42].
13Minister for Health v ANF [2014] WAIRC 01235 [43].
14Minister for Health v ANF [2014] WAIRC 01235 [48].
15 Affidavit of Neil Jason Fergus affirmed 4 December 2014, att NJF14.
16 ts 50, 72 - 73.
17 ts 52 - 53.
18 ts 56.
19Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 [35] (French CJ, Hayne, Crennan & Kiefel JJ); Kidd v The State of Western Australia [2014] WASC 99 [122]; Red Hill Iron Ltd v API Management Pty Ltd [2012] WASC 323 [106] - [112]; Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd [2014] WASCA 28 [55] (Martin CJ, Pullin & Murphy JJA agreeing).
20Director General, Department of Education v United Voice WA [2013] WASCA 287 [18] - [20] (Pullin J, Le Miere J agreeing), [83] (Buss J).
21Amcor Ltd v Construction, Forestry, Mining & Energy Union [2005] HCA 10; (2005) 222 CLR 241 [2] (Gleeson CJ and McHugh J); Director General v United Voice [81]; see also Amcor v CFMEU 66 (Kirby J), 129 - 130 (Callinan J).
22Director General v United Voice [82].
23Kucks v CSR Ltd (1996) 66 IR 182, 184.
24Minister for Health v ANF [2014] WAIRC 01235 [44].
25Minister for Health v ANF [2014] WAIRC 01235 [48].
26 ts 52 - 53, 56 - 57.
27 ts 52 - 53, 54, 56 - 57.
28 ts 50, 73.
29Industrial Relations Act, s 6 (ae).
30 ts 48.
31Hanssen [272] - [276].
32Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union v Electrolux Home Products Pty Ltd (2002) 118 FCR 177.
33 Plaintiff's submissions dated 6 February 2015 [30].
34Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309.
35 ts 39 - 41.
36 Section 42G(1)(c).
37 Section 42G(3); Executive Director Department of Education; The Liquor Hospitality and Miscellaneous Union (WA Branch) [2010] WAIRC 00335 [127].
38 ts 52, 54.
39 ts 48.
40Minister for Health v ANF [2014] WAIRC 01235 [37].
41AMS v AIF (1999) 199 CLR 160 [90] (Gaudron J); Henderson v Pioneer Homes Pty Ltd [No 2] (1980) 43 FLR 276, 289 - 290 (Franki J, Northrop J concurring); Butler v St John of God Health Care Inc [2008] WASCA 174 [38] (Newnes AJA, McLure & Buss JJA agreeing).
42 Section 42G(6).
43Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [97] - [100] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia [2012] HCA 25; (2012) 249 CLR 398 [60] (Gummow, Hayne, Crennan, Kiefel & Bell JJ); Attorney General (WA) v Her Honour Judge Schoombee [2012] WASCA 29 [47] - [49] (Martin CJ, Newnes and Murphy JJA agreeing).
44 See, by analogy, Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 580 - 582 (Mason CJ, Dawson, Toohey & Gaudron JJ), 595 - 597 (Brennan J).
45 ts 57, 68.
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