The Australian Workers' Union of Employees, Queensland v State of Queensland

[2013] HCATrans 131

[2013] HCATrans 131

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane   No B3 of 2013

B e t w e e n -

THE AUSTRALIAN WORKERS’ UNION OF EMPLOYEES, QUEENSLAND

Applicant

and

STATE OF QUEENSLAND

Respondent

Application for special leave to appeal

HAYNE J
BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON THURSDAY, 6 JUNE 2013, AT 11.06 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friends, MS C.M. HARTIGAN and MS L.M. JACKSON, for the applicant.  (instructed by Maurice Blackburn Lawyers)

MR W. SOFRONOFF, QC, Solicitor‑General for the State of Queensland:  If the court pleases, I appear with MR G.J.D. DEL VILLAR for the respondent.  (instructed by Crown Solicitor (Qld))

HAYNE J:   Yes.  Mr Jackson.

MR JACKSON:   Your Honours, there are two issues, Kable, if I could put it shortly, and section 109 inconsistency.  May I deal with them in that order?  Your Honours, in relation to the first of those matters, the application relates to provisions of the Industrial Relations Act (Qld), the Public Service Act 2008 (Qld) introduced by the 2012 amending Act covering those provisions. The relevant provisions of the Industrial Relations Act are in volume 2 of the materials behind tab 3 and they are section 691A to E.

There is also, your Honours, a Kable attack, and I will deal with it at the same time, on the amendment to section 53 of the Public Service Act and I will come to that in a moment.  Your Honours will see, if I could go to 691A to E, they apply to “relevant industrial instrument”.  That term is defined by section 691A and 691B to mean those instruments, “to the extent” to which they apply “to the employment of persons in a government entity”.

Your Honours will appreciate that the State Industrial Tribunal, just to put it broadly, deal principally with State Government employees and related persons in these days; “government entity” is defined by 691B(2).  Now, “industrial instrument”, the definition picks up the Public Service Act provisions and they include, to put it shortly, awards and industrial agreements.

Awards are made by the Queensland Industrial Relations Commission; that is sections 125 and 126 of the Industrial Relations Act and industrial agreements are also certified under the Industrial Relations Act and they are certified by the Queensland Industrial Relations Commission which has power to interpret the award or agreement, section 284, to enforce it, section 277 and 334, including the power to grant injunctions.

May I say, your Honours, it was accepted that the QIRC was a court of the State, as was the Industrial Court, from which appeals lay to it.  Now, the operation of section 691C is to deprive of effect the provisions of industrial instruments referred to in that section.  Those industrial instruments, as section 691B(1) makes clear, are both those made before as well as after the time when the provision came into force, which was 3 September last year.

Your Honours, what it means is that the provisions which have been awarded or certified in determination of claims come immediately to an end and no such provision can be the subject of an award or certification.  Your Honours, could I come to the tests, and I am conscious of there being a number of Kable decisions, including Kable (No 2) yesterday, in relation to what is the Kable principle and the difficulties in identifying central aspects of it.

But, could I just say, your Honours, in Assistant Commissioner Condon v Pompano 295 ALR 638 – it is tab 1 in the second part of volume 1 of the volume your Honours have ‑ it is the first case listed there. At page 673, your Honours will see in paragraphs [123] and [124], what has been observed is that the central issue is that of repugnancy to or incompatibility with the institutional integrity of courts, and the critical notions are insusceptible of further general definition.

Your Honours, the provisions to which we have referred mean, as we have submitted in our written submissions at page 60 in paragraph 25, have the effect, your Honours, we would submit, that the decisional independence of the QIRC is treated as being significantly affected because decisions it has made are, in effect, largely swept aside and it cannot make decisions which deal with such topics in the future, and the course, we would submit, your Honours, taken in this regard goes beyond the decision of the Court in the New South Wales Case, Public Service Association v Director of Public Employment, which is behind tab 9, your Honours, where the Commission was simply being required to apply the law as it was from time to time.  I would refer to paragraph [58] of that decision.

HAYNE J:   But the decisions that are being swept aside are the legislative or quasi‑legislative decisions about awards regulating employment relations for the future.

MR JACKSON:   Yes, they are, your Honour, yes.  Your Honour, I accept that.

KEANE J:   And they derive their force from the laws of the Parliament of Queensland.

MR JACKSON:   Yes, your Honour, they do.  Your Honours, the situation though that appears, of course, is that one of the areas that has been suggested in the decisions of the Court – and I will come to it in just a moment – as being an area where the Kable principle is capable of applying is where there is, whether it be legislative or in some other way, so much direction given to a body which is also a court in relation to the way in which it carries out its non‑judicial functions, that may amount to an infringement of the Kable principle.  That was referred to by Chief Justice French in Crump v New South Wales – it is behind tab 4, your Honours, at page 668, paragraph [31] – and your Honours will see at about line 33 on the page:

nor impose upon them functions incompatible with their essential characteristics as courts –

and your Honours, at the top of the next page, about the third line, that is the class occasion to which the matter would ‑ ‑ ‑

KEANE J:   State legislatures cannot abolish State Supreme Courts.  That is the starting point.

MR JACKSON:   No, it can do anything ‑ ‑ ‑

KEANE J:   Could not the Parliament of Queensland simply abolish the Industrial Court in QIRC?

MR JACKSON:   It could, your Honour; yes, I accept that.

KEANE J:   It can do that but it cannot limit the effect of its awards?

MR JACKSON:   Well, your Honour, what it can do is to bring the body to an end.  However, this aspect of the Kable principle, in our submission, would apply if it adopts a kind of halfway house or some distance between one or the other, abolition or not. In relation to the amendment to section 53 of the Public Service Act, your Honours will see that the Court of Appeal held that it had no jurisdiction to determine the validity of section 3B which inserted section 53(baa). Your Honours will see that at page 42, paragraph [115].

The provision in question is one which your Honours will see, perhaps most conveniently at page 15 of the application book, where the underlying provision was the provision that was inserted.  The result of the insertion of that provision, your Honours, was that any ruling which might be made would prevail over any award or agreement.  It would do so, your Honours, because of a combination of provisions which perhaps I can deal with very shortly.

It was a directive or guideline in terms of section 47(6) of the Public Service Act, it would bind because of 47(3) those to whom it applied, and it would prevail over an industrial instrument; that is section 52(2).  Your Honours, to put it shortly, if one takes into account the first group of provisions which I mentioned, we would submit they give rise to a Kable issue, one perhaps exacerbated by the ability conveyed by section 53(baa). Your Honours, that is what I wanted to say about the Kable points.

May I move to the consistency issue?  The relevant Commonwealth law, your Honours, is found in the Fair Work Act 2009, the provisions of which are set out at page 44 of the application book. Your Honours will see that section 786 – could I just pause to say these provisions are ones that are the implementation of international accords and that is why they apply to State government bodies. Your Honours will see that section 786(1) empowers Fair Work Australia to “make an order under subsection 787(1) if it is satisfied” of the three matters referred to in that provision.

As is apparent from section 786(1)(b), one of the matters which enlightens the power to make an order under 786(1) is non‑compliance by an employer with the requirements of 786(2) or 786(3), and those provisions provide respectively for, in the case of 786(2), notification to “each registered employee association” and then, in the case of 786(3), provision of the “opportunity to consult” and the notice or opportunity, as the case may be, has to be given before the termination of employment.  You will see that, your Honours, in section 786(2)(b)(ii) and 786(3)(b)(ii), it has to be given before termination.

Now, your Honours, non‑compliance with either of those provisions empowers the making of orders to put employees and registered employee associations in the position they would have been in if there had been compliance by an employer with 786(2) or 786(3), and you will see that from the opening words of 787(1).  Now, your Honours, could I go then to the State provision and, your Honours, perhaps if one can look at it conveniently with the other provisions again in the reasons for judgment?

You will see section 691D at page 14 of the application book.  Could I invite your Honours to hold open page 45 as well?  What your Honours will see is that section 691D(1) provides that 691 is applicable if a relevant industrial agreement “includes a TCR provision” and the TCR provision is:

about notifying an entity of a decision or consulting with an entity about a decision.

A TCR provision is defined by 691D(4) to mean:

a termination, change and redundancy provision of a relevant industrial instrument that is an award.

Now, section 691D then makes two provisions if the award falls within 691D(1).  The first is in subsection (2) of 691D.  It provides in (2)(a) that:

the employer is not required to notify the entity of the decision until the time the employer considers appropriate –

Then (2)(b) and (2)(c) say that the employer’s only obligation to consult is “in relation to the implementation of the decision”.  Now, your Honours, the removal of requirements to notify or to consult and the apparent ability to terminate before notification or consultation does not, we would submit, sit well, to put it perhaps neutrally, with the provisions of the Fair Work Act.  Those provisions, your Honours, and I will seek to elaborate on this in just a moment, describe norms of conduct, we would submit, in 786(2) and (3), provide in 786(1) and 787(1) a remedy for non‑compliance with those norms.  The nature of the remedy is to place the parties who would have had the benefit of performance in the same position as if performance had occurred.

HAYNE J:   Why is it the norm of conduct when 786(1) is a provision saying that Fair Work Australia “may make an order”?

MR JACKSON:   It is a Barrett type of clause, a Barrett type of provision.  It is not very different, indeed, from the provisions which were in that case which have been referred to many times in the Court, including I think in one of the reasons for judgment yesterday in Kable.  But, your Honour, what I was going to say about it is that one sees – if I could just go back to 691D for the moment – that in addition to the provisions of 691D(2) as to conduct, D(3) also invalidates the TCR provision of the award.

Now, your Honours, we would submit that the provisions of 786(2) and 786(3) do prescribe rules of conduct with 786(1) and 787(1) providing the sanction for their breach and they are akin to double function provisions, if I could use the jargon, that one sees in, for example, the Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett and other cases since.

KEANE J:   Mr Jackson, if one makes the assumption that you are making there and one looks at paragraph [131] of the Court of Appeal’s judgment at page 48 of the book where that assumption is made, what is wrong with what the Court of Appeal says about that?

MR JACKSON:   Said at [132]?  Your Honour, what we say is the Court of Appeal in the passage to which your Honour referred in paragraph [131] in effect floated the view which is the one we submit was correct, but it erred in its view if one goes to the first – I am sorry, when I say [131], what I meant to say was the last sentence of [130].  At the last sentence of [130], the Court of Appeal floated the view.  What we would say, however, is that when one goes to paragraph [131], the first sentence understates section 691D.  It is not just a provision which leads into 691D(3); it is a provision which sets out the content of the principles.  If one goes to [132], your Honours, the view which was taken by the Court of Appeal there leaves out of account first the fact that the notification and consultation required by 786(2) and (3) are to take place before termination, whereas 691D(2) purports to proscribe any such consultation before termination.

KEANE J:   But, Mr Jackson, the only operative effect of 691D is the effect given by 691D(3).

MR JACKSON:   Well, with respect, your Honour, that is not ‑ ‑ ‑

KEANE J:   That is sterilising the provision of an instrument.

MR JACKSON:   Well, your Honour, 691D(1) applies in the circumstances referred to in subsection (1).

KEANE J:   That is right, that is the application provision.

MR JACKSON:   Yes.  So one then has two provisions of 691D which are germane.  The first is 691D which speaks of the obligations which are to be the obligations on the employer.  One then sees 691D(3) having also the effect on the industrial instrument.  But the two, your Honour, are cumulative; two does not lead into three.  The result is that one sees 691D(2) doing more than just saying because of (2), (3) applies.  Section 691D(2) says what the obligations are and what they are not.  Your Honours, if you take, for example, 691D(2)(c), that speaks entirely, for example, of activities that it is lawful for the employer to engage in.

Your Honours, could I just say one last thing? In relation to indirect inconsistency, the Court of Appeal appeared to rely, as you will see at page 49, on section 722 of the Fair Work Act in paragraph [136].  That section ‑ your Honour, may I have just a moment to finish what I am going to say?

HAYNE J:   Yes.

MR JACKSON: Section 722 suggests that the field is covered, unless there is an alternative remedy, but what is the remedy alternative? There is not one here. Your Honours, those are our submissions.

HAYNE J:   Before you sit down, Mr Jackson, can I take you back to 48 of the application book at paragraphs [131], [132] and [133]?  What do you say is the error, if there be one, that you identify in those paragraphs?

MR JACKSON:   Could I come, your Honour, first to [131]?  The first sentence of [131], the second part of it, “it merely removes” leaves out of account the separate operation of section 691D(2) as dealing with conduct.  Section 691D(2), and I think I have said this a couple of times, does not just lead into 691D(3).  It authorises particular species of conduct.  That is the first thing, your Honours.  The next sentence commencing on the third line of [131] is in a sense true, but irrelevant, in our submission, as is the remainder of paragraph [131].

If one looks at [132], looking at it “from the point of view of rights”, as their Honours say, it is not correct, with respect, to say that nothing in section 691D hinders the exercise of the right to seek the order because your Honours will see, amongst other things, that one of the things that 691D says is that nothing is to take place except in relation to the implementation of a decision to terminate, whereas the provisions of 786 provide that there is not to be termination before consultation.

HAYNE J:   I think that may point to the difficulty I need you to address, which is that 691D(2) is cast in terms of “the employer is not required” to do certain things.  It does not grant permission.  It simply says there is no obligation.

MR JACKSON:   Your Honour, our submission, of course, is based on the contention that the requirements of 786(2) and (3) are to be treated as creating obligations and, your Honours, if they do not do so then, of course, there are difficulties.  But our submission is that they do, and one sees a relatively common – perhaps not the best form of drafting – but a relatively common form of drafting where there is power given to a body to make orders to restore a person to a position that would otherwise have applied.  If there has been non‑compliance with earlier provisions, the question which arises is do they create obligations?  Our submission is that they appear to, and that the permissions or authorisations, whatever one likes to call them, given by section 691D(2) appear directly contrary to those things.

HAYNE J:   Thank you, Mr Jackson.  We will not trouble you, Mr Solicitor. 

The decision of the Court of Appeal in this matter is not attended by sufficient doubt to warrant a grant of special leave.  Special leave is refused. 

MR SOFRONOFF:   We ask for costs.

HAYNE J:   Can you resist costs, Mr Jackson?

MR JACKSON:   No, your Honour.

HAYNE J:   With costs. 

The Court will adjourn to reconstitute.

AT 11.35 AM THE MATTER WAS CONCLUDED