Rinker Group Ltd v WorkCover Corporation of South Australia - [2006] SASC 300

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
RINKER GROUP LTD v WORKCOVER CORPORATION OF SOUTH AUSTRALIA
[2006] SASC 300
Judgment of The Full Court
(The Honourable Justice Perry, The Honourable Justice Nyland and The Honourable Justice Sulan)
28 September 2006
WORKERS' COMPENSATION - INSURANCE AND LEVIES - EXEMPT EMPLOYERS
A group of exempt employers registered as such under the Workers Rehabilitation and Compensation Act 1986 ("the Act"), applied under the Act for renewal of the registration notwithstanding the fact that two companies had ceased to be members of the group - WorkCover rejected the application on the ground that it could not renew the registration on the application of a differently constituted group from that which had initially been registered, and it was necessary for the remaining members of the group to apply for registration afresh - the group's challenge to WorkCover's decision by way of an application for judicial review was dismissed - on appeal, held that the trial judge had erred, and so long as the initial registration was current, the remaining members of the group might apply for renewal of the registration - appeal allowed.
Workers Rehabilitation and Compensation Act 1986 s 59, s 60 and s 62A; Companies (South Australia) Code s 7(5); Corporations Act 2001 (Cth) s 50, referred to.
TRUenergy Australia Pty Ltd v Minister for Industrial Relations (2005) 93 SASR 393; The Queen v Lawrence and Others, Justices of the Peace of the City of Liverpool (1883) 11 QBD 638; Symons v Wedmore (1894) 1 QB 401; Associated Minerals Pty Ltd v Attorney-General for the State of New South Wales (1961) 35 ALJR 296; Newcrest Mining (WA) Ltd and Anor v The Commonwealth of Australia and Anor (1997) 190 CLR 513; Commonwealth of Australia v Antonio Giorgio Pty Ltd (1986) 67 ALR 244, considered.

RINKER GROUP LTD v WORKCOVER CORPORATION OF SOUTH AUSTRALIA
[2006] SASC 300
Full Court: Perry, Nyland and Sulan JJ

PERRY J. This case involves a short point arising under the provisions of the Workers Rehabilitation and Compensation Act 1986 (“the Act”) which provide for registration of a group of exempt employers.
WorkCover Corporation of South Australia (“the Corporation”) declined to renew the registration of a group of employers which included the appellant, Rinker Group Ltd (“Rinker Group”) as a group of exempt employers. Rinker Group brought proceedings in this Court for judicial review in an endeavour to compel the Corporation to renew the registration of the group.
Rinker Group’s claim was dismissed by a single judge of the Court. Rinker Group now appeals against the order of dismissal to this Court.
The legislation
The Act establishes a rehabilitation and compensation scheme for injured workers. Under s 59 of the Act, an employer may not employ a worker (as defined) unless the employer is registered by the Corporation.
The scheme is funded by a Compensation Fund maintained principally by levies imposed on registered employers.
The obligation to register as a employer does not apply if the employer is exempted pursuant to the Act from that obligation. Exempt employers pay only a nominal levy.
Relevant provisions as to exempt employers appear in s 60 of the Act which is as follows:
60—Exempt employers
(1)Subject to this section, an employer or a group of employers may apply to the Corporation for registration as an exempt employer or as a group of exempt employers.
(2)An application shall not be made under subsection (1) unless—
(a)     in the case of an application by an individual employer—
(i)the employer is a body corporate employing more than the prescribed number of workers; or
(ii)the employer is an indemnified maritime employer;
(b)     in the case of an application by a group—
(i)the members of the group are related corporations or local government corporations; and
(ii)the members of the group employ in aggregate more than the prescribed number of workers.
(3)Where—
(a)     an application is made under subsection (1); and
(b)     the Corporation is satisfied—
(i)that the employer or the employers constituting the group have reached a standard that, in the opinion of the Corporation, must be achieved before conferral of exempt status can be considered; and
(ii)that in all the circumstances it is appropriate to do so,
the Corporation may register the employer or the group as an exempt employer or a group of exempt employers.
(4)A registration under this section—
(a)     is subject to—
(i)a condition that the exempt employer must not exercise any power or discretion delegated to the exempt employer under this Act unreasonably; and
(ii)such other terms and conditions as the Corporation determines from time to time or as are prescribed by the regulations; and
(b)     where the exemption was granted on the ground that the employer is an indemnified maritime employer—is subject to a condition limiting the effect of the exemption to the workers, or a specified class of the workers, to whom the relevant indemnity relates; and
(c)     takes effect on a date fixed by the Corporation; and
(d)     subject to this section—
(i)has effect for an initial period (not exceeding three years) determined by the Corporation; and
(ii)may, on further application to the Corporation, be renewed from time to time for a further period (not exceeding three years) determined by the Corporation at the time of the renewal.
(5)The Corporation may revoke the registration of an exempt employer, or reduce the period of registration if the employer breaches or fails to comply with this Act or a term or condition of registration.
(6)In deciding whether to grant, renew, revoke, or reduce the period of registration as an exempt employer or group of employers under this section the Corporation may have regard to such matters as it considers relevant and will have regard to the following:
(a)     whether the employer or group is, and is likely to continue to be, able to meet its liabilities;
(b)     the resources that the employer or group has for the purpose of administering claims for compensation;
(c)     the incidence and severity of compensable disabilities arising from employment by the employer or employers;
(d)     he effect, or likely effect, of the working conditions under which workers are employed by the employer, or any of the employers, on the health and safety of those workers;
(e)     the record of the employer or employers in relation to the rehabilitation of disabled workers;
(f)     the record of the employer or employers in providing suitable employment to workers who suffer compensable disabilities;
(g)     the views of any industrial association that has, in the opinion of the Corporation, a proper interest in the matter,
but once an employer or group has been registered as exempt, the Corporation must not, in deciding whether to renew the registration, consider the effect of the registration on the Compensation Fund.
(7)Where employers are registered as a group of exempt employers, one of those employers nominated in the application for registration shall, for the purposes of this Act, be treated as the employer of all workers employed by the various members of the group.
(8)Notwithstanding subsection (7), the members of the group are jointly and severally liable to satisfy the liabilities under this Act of the member referred to in subsection (7).
(9)In this section—
indemnified maritime employer means an employer that has the benefit of an indemnity granted by a member of the International Group of Protection and Indemnity Associations;
related corporations means corporations that are related corporations for the purposes of the Companies (South Australia) Code.
It will be seen from that section that application for registration as an exempt employer may be made either by an employer individually or by a “group” of employers.
Under s 60(2)(b), an application made by a group may only be made if the members of the group are “related corporations or local government corporations” and the members of the group employ in aggregate more than the prescribed number of workers. The prescribed number is and was at the relevant time, 200.
In s 60(9), “related corporations” is defined to mean corporations that are related for the purposes of the Companies (South Australia) Code. Section 7(5) of the Code provided:
Where a corporation—
(a)is the holding company of another corporation;
(b)is a subsidiary of another corporation; or
(c)is a subsidiary of the holding company or another corporation
that first mentioned corporation and that other corporation shall, for the purposes of this Code, be deemed to be related to each other.
The Companies (South Australia) Code was repealed by the Corporations (South Australia) Act 1990 which in turn has been superseded since 2001 by the Corporations Act 2001 (Cth).
Section 50 of the Corporations Act 2001 defines related bodies corporate in substantially similar terms to the definition in the Companies (South Australia) Code. The judge at first instance was prepared to read the reference in the Act to the Companies (South Australia) Code as a reference to its counterpart legislation in force from time to time, which, for present purposes, is the Corporations Act 2001. Whether or not he was right to take that view is immaterial, given that the sections are relevantly the same.
The Corporation may register the employer or the group as an exempt employer or group of exempt employers if it is satisfied that the individual employer or the group have reached a standard “that, in the opinion of the Corporation must be achieved before conferral of exempt status can be considered”.
Pursuant to s 60(7), where employers are registered as a group of exempt employers, one of the employers nominated for that purpose (“the nominated employer”) in the application for registration is to be treated as the employer of all workers employed by the various members of the group.
However, notwithstanding that provision, under s 60(8), all of the members of the group are “jointly and severally liable to satisfy the liabilities under this Act” of the nominated employer.
Registration initially takes effect for a period not exceeding three years, as determined by the Corporation [s 60(4)(d)(i)]. Importantly for present purposes, the Act provides that “on further application to the Corporation” registration may be renewed “from time to time for a further period (not exceeding three years) determined by the Corporation at the time of renewal” [s 60(4)(d)(ii)].
In TRUenergy Australia Pty Ltd v Minister for Industrial Relations,[1] this Court held that any irregularity in the application which preceded the grant of the status of the exempt employer did not affect the validity of the registration. Furthermore, an application for renewal of registration as an exempt employer was not an application for registration as an exempt employer. Accordingly, it was not necessary for an exempt employer applying for renewal of registration to again pass through all of the preliminary requirements for initial registration.
[1] (2005) 93 SASR 393.
Rather, the application for renewal of registration is to be determined simply by reference to the requirements of s 60(6) pursuant to which the Corporation:
·might have regard to “such matters as it considers relevant”;
·must have regard to the considerations enumerated in s 60(6)(a)-(g) (inclusive); and
·must not, in deciding whether to renew a registration, consider the effect of the registration on the Compensation Fund.
Factual background
Following the reconstruction of a group of companies under the control of SCR Ltd, described in the papers as a de-merger, the appellant Rinker Group, which is a publicly listed company with a number of wholly owned subsidiaries employing workers in the State of South Australia, together with some of its subsidiaries, applied for registration as a group of exempt employers.
At the time of the application for registration, the group comprised Rinker Group, Readymix Holdings Pty Ltd (“Readymix Holdings”), Readymix Emoleum Services Pty Ltd (“Emoleum”) and Ballestrin Concrete Constructions Pty Ltd (“Ballestrin”).
Although the precise date from which registration was effected is not entirely clear, the application was successful, and at least from 30 June 2003, the group associated with Rinker Group was registered as a group of exempt employers. The judge at first instance referred to this group as “the initial group”.
The registration of the initial group was due to expire on 30 June 2006.
By letter dated 30 November 2005 to the Corporation, Rinker Group advised that the group intended to apply for renewal of exempt employer status, and asked the Corporation to advise it as to the necessary requirements to do so.
By letter of 14 December 2005, the Corporation wrote to Rinker Group advising of its detailed requirements and matters which it would evaluate and verify as part of the process of considering the application for renewal. The letter indicates that the Corporation would give attention to verification of business management systems, interviews with selected personnel, organisational charts, reports or audits, either internal or external, conducted in the last two years, risk assessment, work injury statistics, payroll records and a large number of other matters.
By email of 25 January 2006, Rinker Group advised the Corporation that it planned to sell the business of Emoleum. Rinker Group stated that the expected number of remaining Rinker Group employees in South Australia after the sale of Emoleum would be approximately 155. Despite that, they and the remaining members of the group wished to continue to operate in South Australia as a group of exempt employers.
In a subsequent email, Rinker Group advised that the sale of Emoleum was completed on 28 February 2006. Further correspondence ensued, during which the Corporation sought to clarify just what changes had occurred in the group structure. Neither that correspondence nor other evidence before the trial judge made it completely clear just what those changes were.
In response to a request made by the Full Court during the course of the hearing of the appeal, the solicitors for Rinker Group furnished detailed information as to the changes which had occurred.
It appears, that Readymix Holdings was renamed Rinker Australia Pty Ltd (“Rinker Australia”), and that both Rinker Australia and Emoleum were subsequently registered as full levy-paying employers under s 59 of the Act. Effectively, at least those two companies ceased to be members of the group for the time being, as it is clearly not possible for a company to be, at the same time, an exempt employer, or a member of a group of exempt employers, and a non-exempt registered employer.
The Court was further informed that from 1 June 2005 the business and assets of Ballestrin were sold.
On the hearing of the appeal, Mr Uren QC of counsel for Rinker Group, explained that Rinker Australia had only sought and obtained individual registration under s 59 in order to maintain coverage of its workers following the expiration of the group’s registration. It claims to be able to maintain its application, together with the other remaining member of the Rinker Group, for renewal of the registration of the group of exempt employers.
At all events, by letter of 12 May 2006, the Corporation, through its solicitors, advised the solicitors for Rinker Group that it did not have the power to renew the registration for a group of exempt employers “different from that group for which registration had been granted”.
Rinker Group joined issue with that assertion.
It is that issue that was resolved against Rinker Group by the trial judge, and with respect to which the appeal is brought.
The approach of the trial judge
The trial judge held that s 60 of the Act does not contemplate the registration of a group “the composition of which may fluctuate from time to time”. He accepted the submission of the Corporation that:
[35]… the registration which could, pursuant to s 60(4)(d)(ii) be renewed, was the registration “under this section” namely the registration previously granted to a particular group of employers. A group differently constituted could not seek renewal as that group had never been registered as a group of exempt employers. (my emphasis)
The trial judge noted that counsel for Rinker Group was not able to point to any particular words or expressions in s 60 of the Act:
… which had been misconstrued by the Corporation or which indicated that the construction which it had adopted was not open.
He noted that counsel for Rinker Group submitted that the fact that the registration could be renewed even if the group originally registered was differently constituted, was a matter of implication to be drawn from the structure of s 60 considered as a whole and the scheme which it created.
The trial judge referred to a number of arguments which were advanced on behalf of Rinker Group in support of its contentions.
It was submitted that it was commonplace for mergers and de-mergers and other changes to take place within the structure of a number of companies over which a parent company exercised control. It was submitted that s 60 was to be construed “so as to allow some movement in and out of the group registered as exempt employers”.
Given, so it was argued, that the process for obtaining initial registration was more onerous than the process for obtaining renewal of an existing registration, it could not have been intended that whenever there was a change in the composition of the group, it had to begin again by establishing an entitlement to registration of the changed group.
The trial judge rejected this latter contention, holding that:
[39]… However, apart from the eligibility requirements contained in s 60(2), namely, that the companies be related and employ in aggregate more than 200 workers, it is not apparent that the process for renewal is any less rigorous than the process in obtaining an initial grant of registration. I accept the submissions of Mr Walsh QC [counsel for the Corporation] that the matters listed in s 60(6) are not exhaustive of the matters to which the Corporation may have regard on an application for renewal.
The trial judge then tabulated a number of so-called “undesirable results” suggested by Mr McNamara QC then of counsel for Rinker Group which it was contended would follow if the construction urged by the Corporation was accepted. These undesirable results were summarised by the trial judge as follows:
[41]…
(a)     a company would remain part of the registered group even though, by reason of sale, it ceased to be related in any way to the other members of the group, and ceased to be amenable to control in any way by the group;
(b) the company nominated pursuant to s 60(7) would be liable to meet the liabilities of the departed member incurred after its departure (s 60(8)) even though it had no continuing economic relationship with that departed member;
(c) conversely, the departed member would remain jointly and severally liable pursuant to s 60(8) to meet the liabilities of the remaining members of the group incurred after its departure;
(d)     a company which ceased to be a member of the group, and which registered as an employer in its own right would, in effect, be covered by two registrations. The WRCA [Workers Rehabilitation and Compensation Act] does not contemplate two or more registrations of the one company;
(e)     a merger of two companies within the one group would lead to a change in the composition of the group resulting in inability to renew a group registration; and
(f) if the view of the Corporation that it has no power to amend a registration be correct, where a company was added to the group either by acquisition or on the commencement of a business through a newly formed company, it would have to apply for registration as an employer in its own right. That registration presumably would have to continue until the expiry of the group’s registration because s 60(5)(d) does not permit the revocation of registration of a group of exempt employers so that a new group could be registered.

The trial judge then proceeded to address the question whether or not the Corporation had power to amend or vary registration during its currency, so as to alter the composition of the registered group.
He observed that s 60 specifically refers to the grant, renewal, revocation or reduction of the period of registration, but contains no provision for variation of the constitution of the registered group. He took this circumstance to be an indication that the power to vary is not contemplated by the Act.
He rejected arguments which were advanced by Rinker Group based on the fact that:
·registration may be made subject to such terms and conditions as the Corporation determines;
·the Corporation had made compliance with the Code of Conduct (“the Code”) a condition of the registration when it was granted in 2003;
·the Code contained provisions obliging notification to be given of any change in the group of exempt employers;
·the Code purported to give to the Corporation the ability to require that any new entity be included in the existing registration.
The trial judge held, in my view, quite properly, that the provisions in the Code could not enlarge the powers conferred in the Act itself. Putting it another way, the Corporation could not, by drawing up the Code, invest itself with a power which it did not otherwise have.
The trial judge also rejected an argument, in my view, correctly, that the conferral of power on the Corporation under s 14(1) of the WorkCover Corporation Act 1994 in terms that the Corporation “has the powers necessary for or incidental to the performance of its functions” was sufficient to authorise the Corporation to vary the terms of registration in the manner suggested. The trial judge held that:
[50]… I do not consider that it can be said that a power of variation of the kind proposed by the plaintiff can be said to be necessary for, or incidental to, the performance of … [the function of granting renewal or revoking etc the registration of groups of employers].
In the result, the trial judge held that the Corporation did not have the power to vary a registration so as to alter the composition of the group registered.
Furthermore the trial judge did not accept the arguments put by Rinker Group as to the alleged undesirable consequences and policy considerations which, on Rinker Group’s argument, suggested that s 60 impliedly authorised a renewal of the registration of a group, albeit differently constituted.
He considered that the answer was that a differently constituted group could always seek new registration, and either a revocation of the existing registration or a pro tanto reduction in the remaining period of the registration. He repeated his view that applying for a new registration of the changed group was not necessarily more arduous than the process involved in obtaining renewal of an existing registration.
Furthermore, he drew attention to the argument advanced by the Corporation that the policy considerations do not necessarily all point one way. In particular, the removal of one member from a group of exempt employers might significantly alter what he described as “the financial strength, resources and administrative capacity of the group”. In those circumstances he reached the view that:
[54]… Parliament may well have intended … that in all such cases the remaining members of the group should pass again through the s 60(2) and (3) gateways before continuing as a group of exempt employers.
The arguments on appeal
The principal argument advanced by Rinker Group on the hearing of the appeal was that upon registration as a group of exempt employers under s 60(3) of the Act, the resulting registration is of each member of the group individually and not of the group as such. As it was put by Mr Uren QC, after registration, the group is a group of exempt employers and not an exempt group of employers. He submitted that under s 59, the requirement to be registered and the exemption from registration “are individual”.
I agree that under s 59 the requirement to be registered applies individually to an employer who employs workers in employment to which the Act applies.
Furthermore, a successful application by a group of employers for registration as a group of exempt employers has the practical effect that each member of the group is exempt from the obligation to register under s 59.
As a corollary to his first point, Mr Uren QC argued that the group itself has no independent legal existence and cannot as such be registered as exempt.
From those contentions, Mr Uren QC moved to the argument that when in s 60(4)(d)(ii) it is provided that “a registration under this section … may, on further application to the Corporation, be renewed”, what is being referred to is the registration of an individual employer who is then registered as exempt.
Insofar as it is implicit in s 60(6) that the application for renewal may be as a group, he contended that there was no express requirement that the group consist of all of the members of the group who had applied initially for registration as an exempt employer. Insofar as continuity of the membership of the group is not made a condition of an employer’s exempt status during the registration period, on renewal, he submitted, the continuity of the original group members was not a significant matter.
These are strong arguments, but there are some countervailing considerations.
While it is true that under s 60(3) the Corporation may register “a group of exempt employers”, it may only do so after being satisfied that the employers constituting the group “have reached a standard that, in the opinion of the Corporation must be achieved before conferral of exempt status can be considered”.
Furthermore, under s 60(7), one of the employers from within the group must be nominated to be treated as “the employer of all workers employed by the various members of the group”.
The other members of the group must, pursuant to s 60(8), answer to a joint and several liability to satisfy the liabilities under the Act of the nominated member.
Those latter provisions make it plain that for the purposes of the Act the treatment of a group of exempt employers which achieves registration has some important collective aspects which go beyond what the position would be if each member of the group was individually registered as an exempt employer.
If a member of the group ceases to be a related corporation within the meaning of s 60(9) and successfully applies for registration as an employer under s 59 of the Act, that employer could no longer be regarded as a member of the group. Clearly the Act does not contemplate an employer being on the one hand an exempt employer and on the other a levy-paying registered employer. In such a case, the joint and several liability of the remaining members of the group would be potentially increased.
Furthermore, the employer who might cease to be a member of the group could be the employer nominated under s 60(7). Given that the nominated employer must be so nominated in the application for registration, there appears to be no mechanism in the relevant provisions by which anyone else could, during the currency of the registration, be nominated as the employer of all workers employed by the various members of the group.
Even if an employer that ceases to be a member is not the nominated employer for the purposes of s 60(7), it may well be that it is the major employer, perhaps the de facto employer of all of the workers, so that upon that employer ceasing to be a member of the group, on Rinker Group’s argument, short of revocation of the registration of the remaining employers, or reduction of the period of registration, the Corporation could have a situation where a registered group of exempt employers employed only a fraction of the minimum of 200 employees prescribed under s 60(2)(b)(ii).
Apart from the question of the number of employees, a member of the group which ceases to be a member might well be the member which holds the major proportion of the assets of the group taken as a whole, and might in practical terms be the financial backbone of the group. Absent that employer, a situation might well be that the remaining members of the group would never have achieved registration in the first place, having regard to the requirements of s 60(3).
The difficulty with the Corporation’s argument which highlighted perceived problems of that kind, is that all of those perceived problems may adequately be met by procedures already built into s 60.
If there has been such a fundamental change in the composition of the group that doubts arise as to whether or not the remaining members of the group would answer to the requisite standard laid down by s 60(3)(b), or if the number of employees employed by the remaining members of the group is less than the prescribed number of 200, there is no reason why the Corporation may not call upon the remaining members of the group to show cause why the registration should not be revoked.
In TRUenergy Australia Pty Ltd v Minister for Industrial Relations,[2] an application to renew registration as an exempt employer was met with revocation by the Corporation. The situation, however, in that case was confused, in that the employer in that case treated the decision of the Corporation to revoke as a decision not to review its exempt status. The question of revocation was not properly addressed by either the Corporation or by the employer in that case. Furthermore, TRUenergy covered a single registered exempt employer, not a group of exempt employers.
[2] (2005) 93 SASR 393.
Section 60(5) refers to revocation of the registration of “an exempt employer”. But s 60(6) refers to a decision, inter alia, to revoke the registration of “an exempt employer or group of exempt employers”. Reading s 60 as a whole, and particularly reading s 60(5) and s 60(6) together, I am of the view that the power to revoke registration extends to the registration of a group of exempt employers. It would be an anomalous result if it were otherwise. That construction of the Act is supported by reference to s 62A, which creates a right of appeal to the Minister against various actions of the Corporation. The rights include a right of appeal if the Corporation “cancels the registration of an employer or group of employers as an exempt employer or group of exempt employers”. In TRUenergy, it was held that the word “cancels” should be read as equating with the word “revoke” where it appears earlier in the Act, for example in s 60(5).
In deciding whether to revoke the registration of an exempt employer or group of exempt employers, the Corporation would be obliged to have regard to the matters set out in s 60(6) of the Act which include “such matters as it considers relevant”. Obviously the number of employees, for example, employed by the exempt employer is a relevant matter.
Other relevant matters could be the question whether or not, if a financially powerful member of the group has left, the group is, within the meaning of s 60(6)(a), likely to continue to be able to meet its liabilities, or has sufficient resources for the purposes defined in s 60(6)(b).
So that it seems to me the true position is that if there is a significant change in the composition of the group, throwing doubt on the ability of the remaining members to answer to the requirements of registration as an exempt employer, the remedy is in the hands of the Corporation. It can set in motion appropriate procedures which may lead to revocation of the registration.
If it does not choose to do so, the registration of the group of exempt employers continues in force. Neither party in this case suggested otherwise.
If the remaining members of the group, where an employer has ceased to be a member, have the benefit of an existing, current registration, I do not see any reason why they should not be entitled to apply to renew it. To accept that view is to recognise that continuity of coverage of workers pursuant to the compensation scheme established by the Act, is a consideration which is of paramount importance in resolving any doubt as to the construction of particular provisions of the Act, such as those now in question.
Concerns arising by reason of a fall in the aggregate number of employees below 200, or by reason of the other matters to which I have referred, can be adequately addressed on an application for renewal.
Given the breadth of the considerations which the Corporation may take into account in determining an application for renewal pursuant to s 60(6), there is no reason to suppose that the processing of an application for renewal may not, in an appropriate case where there has been a significant change in the composition of the group, be as rigorous and as demanding as the inquiry which may be made under s 60(3)(b) on an application for registration.
It follows that, with respect, I would not agree with the conclusion reached by the trial judge. In my view, the appropriate order for him to have made was to compel the Corporation to consider the application for renewal by the remaining members of the group.
But there is a further complication.
When the hearing took place before the trial judge, the period of the initial registration had all but expired: it expired two days after the date of his order, namely on 30 June 2006.
That circumstance gives rise to the question whether or not an application for renewal may be considered after the registration of an exempt employer has expired.
Renewal after expiry of registration
By reference to the New Shorter Oxford Dictionary, the appellant contended that the ordinary meaning of the word “renewal” is “restore, re-establish, bring back into use or existence”, none of which words preclude the renewal of a right after its expiry.
However, I do not think that the question whether there continues to exist a right to apply for renewal of an expired registration as an exempt employer is to be determined by reference to dictionary definitions. Sometimes such definitions are of help, for example, by identifying the ordinary and natural meaning of words. But the fact that dictionary definitions may sometimes include meanings no longer in current use or obscure or rarely used meanings, should serve to sound a note of caution.
However, in cases such as this, what must be addressed is the meaning of the word in its statutory context. In this case, the task is to consider the meaning of the word “renewal” in the context of the relevant provisions of the Act. In performing that exercise, dictionary definitions are of marginal significance only. Resolution of the question comes down to a process of statutory construction.
Some early cases dealing with a right to renew a liquor licence after it had expired were cited in argument: see The Queen v Lawrence and Others, Justices of the Peace of the City of Liverpool[3] and Symons v Wedmore.[4] Those cases do no more than illustrate that the question is to be determined by a process of construction of the relevant statutory provisions.
[3] (1883) 11 QBD 638.
[4] (1894) 1 QB 401.
The same may be said as to authorities cited by the respondent. Those cases are Associated Minerals Pty Ltd v Attorney-General for the State of New South Wales,[5] Newcrest Mining (WA) Ltd and Anor v The Commonwealth of Australia and Anor,[6] and Commonwealth of Australia v Antonio Giorgio Pty Ltd.[7]
[5] (1961) 35 ALJR 296, 298.
[6] (1997) 190 CLR 513, 620-621.
[7] (1986) 67 ALR 244, 251.
Associated Minerals involved a question of renewal of expired mining leases. Newcrest Mining concerned renewal of an expired dredging lease. Those cases fell to be considered by reference to the relevant provisions in the legislation there in question. Commonwealth v Giorgio concerned provisions in a licence which conferred an option to renew.
In the case of applications for renewal of registration as an exempt employer under the Act, which may be made by an individual employer or by a group, it would be an unfortunate result if such applications could no longer be pursued if for one reason or another, they were not determined by the Corporation before the period of registration had expired.
Here, for the reasons which I have given, the refusal by the Corporation to entertain the application by Rinker Group was the result of a misconception as to the legal position.
While I accept that it is undesirable that a hiatus should occur in the coverage extended to workers under the Act, that is unlikely to result even if the Corporation is obliged to consider the application after the registration has expired. The inability of employers to employ workers in employment to which the Act applies, under pain of penalties which might be imposed under s 59, would ordinarily cause an employer seeking renewal of registration as an exempt employer in such circumstances to obtain registration under s 59 pro-tem, while the application was processed. That is the course followed by Rinker Australia in this case, pending a ruling on the question whether the Corporation was bound to consider the application for renewal.
As I have already explained, if the members of a group of exempt employers remaining after one or more employers have ceased to be members of the group, have the benefit of an existing, current registration, which the Corporation has not sought to terminate, there is no reason why they should not seek to renew it.
If their application to that end is not determined by the Corporation before the period of registration has expired, I see nothing in the Act to suggest that the application should not be determined after the expiration has taken effect. In such circumstances, if the application is successful, there is no reason why the renewal cannot be expressed to be retrospective to the date of expiration of the registration.
Conclusion
Although a declaration has been sought, an order in the terms which follow, coupled with an obligation to proceed in accordance with these reasons, is sufficient to determine the rights of the parties.
I would order that:
1.the appeal be allowed.
2.the order of White J made on 28 June 2006 be quashed;
3.the respondent’s refusal of the appellant’s request for renewal of the registration of the remaining members of the group of exempt employers determined at a meeting of the Board of the respondent held on 22 June 2006 be quashed.
4.the matter be referred back to the respondent for determination in accordance with these reasons.
NYLAND J. I agree that the appeal should be allowed and I agree with Perry J’s reasons.
SULAN J. I agree with the reasons of Perry J and with the order that he proposes.