Transport Workers' Union of Australia v National Dairies Limited

[1994] IRCA 7

C A T C H W O R D S

INDUSTRIAL - whether termination of employment occurred before the commencement of the Act - application for costs - whether Union instituted proceeding without reasonable cause - whether employer's statement to employee that she was ineligible to join the union is relevant to the delay resulting from the employee consulting the Union - whether principles as to extension of time under ADJR Act apply to an application under s.170EA(3).

Industrial Relations Act 1988 (Cth) ss. 170EA(3), 347

Hunter Valley Developments Pty Ltd v. Cohen (1984) 3 FCR 344

TRANSPORT WORKERS' UNION OF AUSTRALIA v. NATIONAL DAIRIES LIMITED
VI No. 153 of 1994

- and -

PAM COKER-GODSON v. NATIONAL DAIRIES LIMITED
VI No. 262 of 1994

KEELY J.
MELBOURNE
22 August 1994

IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA  )  VI No. 153 of 1994
VICTORIA DISTRICT REGISTRY  )

B E T W E E N:

TRANSPORT WORKERS' UNION OF AUSTRALIA
  Applicant

A N D:

NATIONAL DAIRIES LIMITED
  Respondent

MINUTE OF ORDER

21 June 1994  KEELY J

THE COURT ORDERS THAT:

1. The respondent's motion, of which notice was given on 20 May 1994 be dismissed.

NOTE:           Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA  )  VI No. 153 of 1994
VICTORIA DISTRICT REGISTRY  )

B E T W E E N:

TRANSPORT WORKERS' UNION OF AUSTRALIA
  Applicant

A N D:

NATIONAL DAIRIES LIMITED
  Respondent

Reasons for Judgment

(Delivered Ex Tempore - Revised from draft transcript)

21 June 1994  KEELY J
           In matter number VI 153 of 1994 the respondent by motion, notice of which was dated 20 May 1994, has moved for orders including an order that the court has no jurisdiction to grant the relief sought in the application.  Other orders were sought and in a related matter (number VI 262 of 1994), which is also before the court today, a notice of motion was filed by the applicant on 2 May 1994.  However, the parties have asked the court to rule first upon the respondent's motion as to jurisdiction.

Overnight I have read the transcript of the respondent's argument and have this morning considered his further submissions.  The respondent's counsel submitted that "the court ought to be satisfied that the termination of the employee's employment did not contravene the provision of this division [of the Act], because the termination occurred before the division commenced and accordingly could not have contravened the division".

The essential basis of the respondent's submission was "that all the acts of the respondent to effect termination of the employment were complete before the [Industrial Relations] Reform Act commenced ... the letter containing the notice [of termination] was posted on 29 March 1994 ...".  Asked whether he was submitting that the relevant time was the time of the posting the notice of termination, and not the time of receipt of it by the employee, counsel submitted that "one does not ask that question, because one does not look at when termination was effected, but rather whether any acts which were performed by the respondent contravene the Act ...".  He referred to the decision of Wilcox C.J. in Siagian v. Sanel Pty Limited (unreported, delivered 27 May 1994) and to the decision of Gray J. in Association of Professional Engineers, Scientists and Managers Australia and Another v. Skilled Engineering Pty Ltd (unreported, delivered 10 June 1994).  The respondent's counsel accepted that neither of those judgments contained any expression of opinion on the question raised by his submission in this case.  The respondent sought to place considerable reliance upon passages in the reasons for judgment of Gray J. and, in particular, the following passages:

"The Convention, therefore, focuses on what the employer has done to bring about the end of the employment.  It is the employer's act or acts which is or are regarded as the "termination".  As Article 10 illustrates, the employer's act or acts are to be regarded as the "termination" irrespective of the validity.  That Article contemplates that the appropriate body could declare the termination invalid." (p.22.5)

"The Convention covers all possibilities by focussing on the act of the employer, whether effective or not to bring about the end of the employment, and treating that act as the "termination"."  (p.22.9-23.1)

"Both the requirement that expressions in division 3 of Pt. VI A be given the same meanings as in the Convention and the form of the provisions of division 3 therefore suggests that "termination" refers to what is done by an employer attempting to bring about the end of the employment.  The legislative intention is to permit applications under s.170EA of the IR Act if an employer has done some act terminating or purporting to terminate the employment, irrespective of whether the act is effective to bring about the termination without some further act on the part of the employee."  (p.23.5)

There is one other passage which was referred to by the respondent's counsel in referring to other pages in the judgment.  It was as follows:

"Thus, in general, notice given by an employer will inevitably bring the contract of employment to an end at the expiry of the notice.  There is nothing more the employer can or needs to do to produce this result.  It is therefore appropriate to view the giving of notice as the "termination" for the purposes of ss.170EA and 170EE of the IR Act. 

For present purposes, the consequence of the construction which I have adopted is that any act of an employer bringing to an end or purporting to bring to an end a contract of employment, which occurred prior to 30th March 1994, is not a "termination" for the purposes of s.170EA of the IR Act.  No application under that section can therefore be made in respect of such an act."  (p.27-28)

In the passage which I have just quoted it should be noted that the words are "notice given by an employer".  The word "given", in my opinion, raises the question of communication of that notice, a matter to which I will refer shortly.

I have considered carefully those passages in the context of the whole of the reasons for judgment of Gray J.  In my opinion, read in context, his Honour was not expressing an opinion which lends support to the submission by the respondent in this case.

It may be, as the respondent's counsel has submitted in the passage quoted earlier, that all of the acts of the respondent were performed on 29 March 1994 i.e. before the Industrial Relations Reform Act 1993 ("the Reform Act") commenced on 30 March 1994. However, in my opinion, it is not correct to say, as he submitted, that "all the acts of the respondent to effect termination of the employment" were complete before the Reform Act commenced. It was accepted by the respondent's counsel, for the purpose of the present hearing, that the employer's letter of purported termination was not received by the applicant until 30 March 1994. In my opinion the mere posting of a letter of termination does not in itself amount to a termination of the employment of the employee concerned until its contents are communicated to the employer. I am unable to uphold the respondent's submission that the intention of the legislature was to make it a contravention of the Act for an employer to perform actions "pursuant to which the employer seeks to terminate an employee even if that wish is never communicated to the employee i.e. even if a letter of termination posted by an employer is never received by the employee".

In my opinion, on the material before the court at this stage, the purported termination of the applicant did not occur until 30 March 1994.  It follows that, on that material, the court could not be "satisfied that the termination of the employee's employment contravened no provision of [Division 3, Part VI A of the Act]" (s.170EE(1)).  It follows that the order sought under paragraph (a) of the respondent's motion must be refused. I should add that I accepted the submission by the respondent's counsel that the decision in Brown v. Southall and Knight (1980) ICR 617 is distinguishable.

I certify this and the three (3) preceding pages are a true copy of the reasons for judgment of the Honourable Mr Justice Keely as recorded in the draft transcript and revised by his Honour on 20 June 1994.

Associate:

Dated:  24 June 1994

Representative of the applicant:  Mr R. Marles,

Transport Workers' Union of Australia

Solicitors for the respondent:  Arthur Robinson & Hedderwicks

Counsel for the respondent:  Mr M. Wheelahan

Dates of hearing:  20 and 21 June 1994

Date of judgment:  21 June 1994

IN THE INDUSTRIAL RELATIONS COURT   

OF AUSTRALIA  

VICTORIA DISTRICT REGISTRY         

IN THE MATTER OF:  

TRANSPORT WORKERS' UNION OF AUSTRALIA

Applicant

- and -

NATIONAL DAIRIES LIMITED

Respondent

VI No 153 of 1994

AND IN THE MATTER OF:  

PAM COKER-GODSON

Applicant

- and -

NATIONAL DAIRIES LIMITED

Respondent

VI No 262 of 1994

REASONS FOR JUDGMENT

22 August 1994  KEELY J

In matter VI No 153 of 1994, an application (the Union's application) made by the Transport Workers' Union (the Union), stated to be "on behalf of Pam Coker-Godson", was filed on 14 April 1994.  Paragraph (a) of a motion by the respondent, dated 20 May 1994, in that matter, sought an order "that the Court has no jurisdiction to grant the relief sought".  The essential basis of the submission by the respondent's counsel, Mr M Wheelahan, in support of paragraph (a) was that "the termination occurred before the division commenced".  That submission was rejected on 21 June 1993 and oral reasons for judgment were given.  It may be added that the parties had asked the court to rule first upon that part of the respondent's motion that the court had no jurisdiction.

Under paragraph (c) of that notice of motion, the respondent sought an order striking out the Union's application.  As that application was not made within 14 days after Ms Pam Coker-Godson received written notice of the termination and as no application has been made for the court to allow any "further period", an order will be made striking out the Union's application.

Under paragraph (d) of that notice of motion, the respondent sought an order "that the Applicant shall bear the costs of this application". I accept that the court has power to order costs, subject to s. 347 of the Industrial Relations Act 1988 (Cth) (the Act) (see decision of Moore J in Canceri v Taylor matter no. NI 226 of 1994, delivered 11 August 1994 in Sydney).  I have considered counsel's submission and the cases which he cited, including Geneff v Peterson (1986) 19 IR 40 at 87-90 and the authorities there cited. In my opinion neither Geneff nor the cases cited support the respondent's application for costs.  The decision of Evatt J in Naqvi v MBP (SA) Pty Ltd (1981) 36 ALR 379 does not assist the respondent as it concerned s. 21(1)(c) of the Crimes Act 1914 (Cth), which expressly provided that a prosecution must be commenced "within one year after the commission of the offence".

In my opinion, on the affidavits before the court, the Union did not institute "the proceeding ... without reasonable cause".  No order will be made as to the respondent's costs.

In matter VI No 262 of 1994 the applicant, Ms Pam Coker-Godson, by motion, notice of which was dated and filed 2 May 1994, moved for an order under s.170EA(3) of the Act extending until 2 May 1994 the period within which she could apply for a remedy in respect of the termination of her employment (the termination). It was accepted by the parties that the employer's letter of purported termination was received by the applicant on 30 March 1994. As her application was not filed until 2 May 1994, it was not made "within 14 days after the employee [received] written notice of the termination (see s.170EA(3)(a) of the Act).

In opposing the applicant's motion, the "main submission" by Mr Wheelahan  was that it would be futile to grant an extension of time "because the termination occurred before the division [of the Act] commenced; that submission was rejected in the reasons for judgment delivered on 21 June 1994 in matter no. VI 153 of 1994.  His other submissions were: (1) that the applicant's work did not fall within any of the categories of work described in clause 4 of the Union's conditions of eligibility. (2) that the Union was not entitled to represent the interests of the applicant and (3) that the applicant "knew or ought to have known that she was not entitled to be a member of the Union".  He relied on affidavit evidence that the applicant had been "told that in the respondent's view she was not eligible for membership".  He submitted that "because of that the applicant . . . ought not to have gone to the Union in the first place" and that "it was because of that [going to the Union] that an application was not filed within the time prescribed".

As to his first and second submissions, Mr Wheelahan accepted that it was not necessary for the court to consider whether, as a matter of law, the applicant was eligible to be a member of the Union, because it was the applicant's conduct that was relevant to her application for an extension of time, not the question of her eligibility as a matter of law.

As to his third submission, namely, the applicant's conduct, he relied upon the affidavit of Mr Sasse and said that the "respondent asserts that it informed the applicant that she was not entitled to be a member of the Union and therefore she knew or ought to have known that the Union was not entitled to represent her interests in a proceeding such as this".    I reject as untenable the respondent's "assertion" that, merely because one of its employees informed the applicant that "in the respondent's view" she was not eligible to be a member of the union, "therefore she knew or ought to have known that the Union was not entitled to represent her interests".  The question of whether a person is eligible to be a member of a union registered under the Act often raises difficult questions of law which have required consideration by the High Court on a significant number of occasions.  An employee may well be acting wisely in failing to accept and act upon the mere assertion by the employer that she is not eligible to join a union. Certainly the applicant was not acting unreasonably in acting as she did in this case.

Mr Wheelahan accepted the submissions put by Mr Marles, on behalf of the applicant, as to the principles relating to the grant of an extension of time.  Mr Marles cited Re Johnson and Commonwealth, a decision of the Administrative Appeals Tribunal (unreported, dated 5 January 1990) and Re A'Hearn (1993) 18 AAR 22. In the latter decision Hill J referred to a number of decisions of the Federal Court, and said that the decision of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, has been "referred to with approval in many decisions of judges of this court". In that case, Wilcox J at 348-349 referred to s.11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the Judicial Review Act) and said:

"1.       Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made.  Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do.  The "prescribed period" of twenty-eight days is not to be ignored (Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission (1982) 43 ALR 535 at 550). Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time (Duff at 485; Chapman v Reilly unreported (Federal Court of Australia, Neaves J., 9 December 1983) at 7).

2.        Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished.  A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not "rested on his rights": per Fisher J in Doyle v Chief of Staff (1982) 42 ALR 283 at 287) and a case where the decision-maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon and Douglas v Allen (1984) 1 FCR 287 with Lucic at 414-415 and Hickey v Australian Telecommunications Commission (1983) 48 ALR 517 at 519. The reasons for this distinction are not only the "need for finality in disputes" (see Lucic at 410) but also the "fading from memory" problem referred to in Wedesweiller v Cole (1983) 47 ALR 528.

3.        Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension: see Doyle at 287, Duff at 484-485, Hickey at 525-527 and Wedesweiller at 533-534.

4.        However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas, Lucic at 416, Hickey at 523. In this context, public considerations often intrude (Lucic, Hickey).  A delay which may result, if the application is successful, in the unsettling of other people (Ralkon at 550, Becerra at 12-13) or of established practices (Douglas) is likely to prove fatal to the application.

5.        The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted: Lucic at 417, Chapman at 6.

6.        Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion: Wedesweiller at 534-535."

If it is proper to apply those principles to the factual situation disclosed by the affidavits filed by the parties, in my opinion the court, in the exercise of its discretion under s. 170EA(3), should allow the further period sought by the applicant. As to principle 3, I am satisfied that granting the application will occasion no prejudice to the respondent. Principle 2 gives support to the applicant as it can not be said in this case that the respondent "was allowed to believe that the matter was finally concluded".

However, in my opinion the wording of s. 170EA(3) is such that it may well be easier for an applicant, under that sub-section, to persuade this court to allow a "further period" than it is for an applicant, under s. 11 of the Judicial Review Act, to persuade the Federal Court i.e. on the principles distilled by Wilcox J in Hunter Valley at 348 "to guide, not in any exhaustive manner, the exercise of the court's discretion" under the Judicial Review Act. In saying that I am referring in particular to the statements in principle 1 that: (a) "the court will not grant the application unless positively satisfied that it is proper so to do", (b) "it is the prima facie rule that proceedings commenced outside that period will not be entertained" and (c) it "is a pre-condition ... that the applicant show an `acceptable explanation of the delay'" (emphasis added).  As the matter has not been argued I shall not express any opinion on the question.

For the above reasons, the court will extend until 2 May 1994 the period within which Ms Pam Coker-Godson could apply for a remedy in respect of the termination of her employment.

I certify this and the six (6) preceding pages are a true copy of the reasons for judgment of the Honourable Mr Justice Keely.

Associate:

Dated:22 August 1994

Solicitor for and representative                Mr R Marles,

of the applicant:  Transport Workers' Union of Australia

Solicitors for the respondent:  Arthur Robinson & Hedderwick

Counsel for the respondent:  Mr M Wheelahan 

Dates of hearing:  20 and 21 June 1994

Date of judgment:  22 August 1994