Transport Workers Union of Australia v Qantas Airways Limited [2012] HCATrans 192

[2012] HCATrans 192

[2012] HCATrans 192

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S61 of 2012

B e t w e e n -

TRANSPORT WORKERS UNION OF AUSTRALIA

Applicant

and

QANTAS AIRWAYS LIMITED ACN 009 661901

Respondent

Application for special leave to appeal

HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 AUGUST 2012, AT 1.12 PM

Copyright in the High Court of Australia

MR A.A. HATCHER, SC:   If it please the Court, I appear with my learned friend, MR M. GIBIAN, for the applicant.  (instructed by Maurice Blackburn Cashman Lawyers)

MR F. PARRY, SC:   If the Court pleases, I appear with my learned friend, MR C.B. O’GRADY, for the respondent.  (instructed by Freehills)

HEYDON J:   Yes, Mr Hatcher.

MR HATCHER: If it please the Court, this application is concerned with the proper construction of section 494(5)(b) of the Workplace Relations Act.  We should note at the outset that that Act has been repealed and replaced by the Fair Work Act 2009, but it continues to apply to conduct regulated by the Act that predates 1 July 2009. That position operates by virtue of Schedule 2, item 11 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. In this case the trial judge made an order for monetary compensation against us, in favour of the respondent, pursuant to the provision that we have referred to and, as far as we know, that is the first time that such an order, that is, an order for monetary compensation, has been made pursuant to that provision or its predecessors.

The provision in question is contained in Part 9 of the Workplace Relations Act which sets out a scheme or regime in respect of the taking of industrial action by persons and entities covered by the Workplace Relations Act, and in respect of industrial action sets up a number of prohibitions which can be the subject of orders by relevant courts, including pecuniary penalties which were also imposed upon our client – that is not an issue in this case – and other orders as may be identified by relevant provisions.  The provision in question here – can I just briefly take the Court to it?  If the Court has our book of legislation and authorities, section 494 is set out at pages 19 and 20 of that book, as it is set out in the numbering in the top right‑hand corner.

Section 494(1) on page 19 erects a prohibition upon engagement or organisation of industrial action, whilst there is in place and in operation an unexpired collective agreement or workplace determination.  Then skipping the next three subsections, on page 20 at subsection (5) there is identified the orders which a relevant court can make with respect to a contravention relevantly of subsection (1) here.  Paragraph (a) included imposition of pecuniary penalties, and as I said there were penalties imposed upon the applicant with respect to the conduct in question which was a four hour stoppage of work which occurred on 30 March 2009.

It is paragraph (b) which raises the question of construction in this case; that is, the trial judge, in reasoning which was upheld by the Full Court, determined against our submissions that subsection (5)(b) authorised an order in the nature of monetary compensation or damages for losses which were said to flow from the industrial action which occurred on the relevant time.

HEYDON J:   Do not damages normally remedy the effects of some tort or breach of statutory duty?

MR HATCHER:   That would be correct and we start off with the proposition, which I suppose is a concession, that if one was to consider paragraph (b) in isolation, that is divorced from its context, then it is likely that one would take the view that a monetary order might be the type of order that is authorised by the provision.  Certainly, that is the view that was taken by the trial judge and the Full Court, that is, they took the position that such an order was authorised, applying the principle that limitation should not readily be implied in grants of judicial power, absent express language.

Now, the point we wish to make which we have been unsuccessful upon to date is that there is a collision between that principle and the competing principle that language used in a statute or expressions used in a statute should be interpreted consistently where it appears in different places in the statute where that is possible. We have identified a number of provisions in this statute where the same expression appears, including in Part 9 of the Act, and where, by reason of proper analysis, the conclusion can only be reached that the expression does not include a power for monetary damages.

HEYDON J:   What does it include then?

MR HATCHER:   In our submission, particularly if one looks at the context of 494 as a whole, that is, its subject matter is concerned with industrial action of a type that is prohibited by the legislation, and taking into account the fact that the relevant words relied upon appear together with a power to grant injunctions, we think that the purpose of the power is directed at practical relief, which a court may order, either to ensure that industrial action ceases ‑ ‑ ‑

HEYDON J:   It is an injunction.

MR HATCHER:   ‑ ‑ ‑ if it is still having an effect, and any order that might be in aid of that, or if the industrial action has ceased but its effects are still current and ongoing, practical relief which may flow in order to ensure that those effects are alleviated.  For example, and to use the example which arises from the facts of this case, this was a stoppage of baggage handlers at various airports across the country.  The evidence before the trial judge indicated that a result of the stoppage was that there was a pile‑up of baggage at various terminals throughout the country.

If, for example, the matter had come before the court on an interlocutory basis we say that the provision is armed so that not only can the court order practical steps to be taken in order to stop the contravention, that is, to bring the industrial action to an end, but also even if it has already ended to make practical orders to ensure that ‑ ‑ ‑

HEYDON J:   That is a mandatory injunction.

MR HATCHER:   Well, let me finish.  To ensure that – and I will try to think of a practical example in a second – to ensure that, for example, workers continue to work perhaps beyond their normal hours to clear the backlog and remedy the effects, for example, on the travelling public.  Now if, for example, there was some union rule or a provision in an award or a collective agreement which somehow prevented in normal circumstances that additional work being performed that might be an example of a case where the court could make an order, not in the nature of an injunction, but an additional order to ensure that any such restriction or prohibition upon the performance of additional work took place.

Now, that is an example I can think of, but as a matter of the record I do not think there is any other example where this particular power has been used either to award damages or in the way that I have described it.  It raises, in this particular case, some very novel questions.

BELL J:   But in a limited class of case having regard to the circumstances that you adverted to at the commencement of your submissions?

MR HATCHER:   That must be right, that is, we have to accept that the Fair Work Act has a different scheme of provisions so that this issue would arise with respect to litigation.  It could only arise in other cases with respect to litigation about events occurring before 1 July 2009, although because the phrase appears in other parts of the Act it may not be limited to the subject matter of section 494.  I make good the best example of the contextual problem as quickly as I ‑ ‑ ‑

BELL J:   Before you take us to your best example, the Full Court at application book 282, paragraph 37 concluded that the provisions did not follow a uniform structure in the Act.  So it seemed to me to rather cut down the effect of your argument, based on those provisions which refer in terms to compensation.

MR HATCHER: There was a range of provisions considered by the court. Some of them used the identical phrase to that which appears in the relevant provision. Others used phrases which were similar, but starting to verge away in terms of text and used in a different structural context, and others also in both categories have dealt with a different subject matter. What I intended to do to illustrate the nature of the problem is take the Court briefly to two provisions – sorry, three provisions in Part 9 of the Act that is part of the same scheme in which this provision fell that, one, which was taken I think by the court to favour the position which we contend for and, two, which was taken by the court against the provision we contend for to illustrate the nature of the problem.

The context we rely upon is both in the statute as it appeared and applied at the time of the industrial action, but also in an earlier version of the statute.  This statute was, of course, heavily amended by what is colloquially known as the Work Choices amendments in 2005, and the way in which the Act was amended informs the context applying to the construction of this provision.  Can I take firstly the Court to two provisions which appear in our volume of materials, and they appear at pages 1 and 2 and 3 of our bundle of legislation, so these are pre‑2005 provisions.  187AA in subsection (1) had a prohibition upon an employer paying an employee for a period engaged in industrial action.

Subsection (2) created a prohibition upon the employee accepting payment.  187AB on the following page in subsection (1) erected a prohibition upon a claim for payment for a period engaged in industrial action, that is in (a), or the organisation or engagement in industrial action to coerce payment, that is in paragraph (b).  187AD on the following page sets out the orders that can be made with respect to contravention of either of those provisions.  You will see that (a) in subsection (1) of AD has pecuniary penalties.  Then you will see in (b) with respect to 187AB only, that is the second of those two provisions, a specific provision:

requiring the person to pay to an employer compensation of such amount as the Court thinks appropriate –

Then you will see in (c) an expression, which if you exclude the words “(including interim injunctions)” is the same which appears in 494(5)(b).  So it is clear, just looking at subsection (1) alone, that the phrase – the expression in (c) cannot have been contemplated by the legislature as including any power toward compensation because in (b) there is a specific power toward compensation which is confined to the circumstances of the contravention of section 187AB, and that is then supported by subsection (2) which confirms that under (1)(b) you cannot make an order for compensation for a contravention of section 187AA(1) in connection with the contravention referred to in that paragraph.

Now, of course, subsection (2) would be ineffective, as would the qualification in (1)(b), if the expression in (c) was to be construed as including a power of monetary compensation.  So we are immediately faced with the problem that as part of the same Act, albeit in an earlier version, the very expression which appears in the subject provision here necessarily is to be construed as excluding a power of monetary compensation, and that is the starting point for the analysis that in this Act where the legislation intended for there to be a power toward monetary compensation it specified that proposition in express terms.

BELL J:   I think the primary judge considered the legislative history – this is at paragraph 393 on application book 122 – sustained a cogent argument that when the legislature had intended to confer a power to award compensation it had done so expressly, then his Honour went on to point out that there were indications pointing in the opposite direction and he identified some of those.  Now, the Full Court as agreed with that construction, I am just having some difficulty seeing in relation to a repeal provision of legislation when one has a body of like views in the court below, respecting complex legislative history, pointing in more than one direction, how you overcome that obstacle.

MR HATCHER:   Well, the difficulty presented by the approach taken by the trial judge and the Full Court, as I will quickly come to in a second, is that it creates a direct incompatibility of meaning between two provisions in the same part of the Workplace Relations Act, that is, if one then goes to the provisions which replace the provisions I have just taken you to, they use the identical wording as is contained in 494(5)(b); they appear about six and seven sections after the provision in question, they appear as part of the same regime, and they necessarily must be given a quite different meaning.

Now, although the court, as your Honours noted, accepted the degree of cogency in our argument it, with respect, did not explain how one reconciles the problem I have just raised, that is, identical provisions necessarily having different meanings on their construction.

BELL J:   I think it endeavoured to do so by looking at a statutory scheme where provisions were differently drafted and so one cannot say everywhere in this Act one finds a particular formula used, ergo you can draw some conclusion when you come to 494.  That is as I understand it.  I mean, there is the approach adopted not only by the primary judge but by their Honours in the Full Court.

MR HATCHER:   Well, that can be accepted as reasonable characterisation of what they did and, with respect, we say that the process of analysis was wrong and it has created a result where our client has been subject to something which has not happened before under the statute, that is, being subjected to an order for damages with respect to industrial action.

BELL J:   What I am taking up with you is taking us to the legislative history to the preceding legislation against the conclusion of the primary judge at 393, with which the Full Court agreed, does not seem to me to be a strong point to bring us to whatever the real heart of your application is.

MR HATCHER:   Well, the next step in the analysis is to go to the current provisions of the Act.

BELL J:   Yes.

MR HATCHER:   It has been miscopied in our version of the legislation so can I take the Court to the Qantas version at 12, page 411 of volume 1?

HEYDON J:   Did you say tab 12?

MR HATCHER:   Tab 12, your Honour.

HEYDON J:   Thank you.

MR HATCHER: Page 411. The provision is section 507 of the Workplace Relations Act.  You will see that 507 is the equivalent provision, or the replacement provision, for the previous 187AA.  You see will in subsection (2) there is the prohibition upon the employer making a payment for industrial action, albeit it has been made a little more stringent because there is a minimum four hour deduction required.  In subsection (5) there is the prohibition upon the employee accepting payment.  In the Act as it now was the court orders that could be made were internalised within each provision, so if you go to 507(7) it says:

The Court may make one or more of the following orders in relation to a person who has contravened subsection (2) or (5) –

and it has pecuniary penalty, then it has the same expression in 494(5)(b) and then it has “any other consequential orders”.

So this was replacing the provision for which there was no capacity under the previous legislation to award compensation and it has used that formula again.  In circumstances under the previous legislation it could not have included monetary compensation.  That is to be compared to 508 which is the equivalent of the 187AB provision.  So you will see in subsection (1) there is the prohibition upon making a claim in (a) and upon coercive activity in (b).  Then the orders the court can make are set out in subsection (5) on page 413, and here we see in addition to the pecuniary

penalty and the injunctions and any other orders formulation in paragraph (b) a specific power toward compensation.

Now, of course, that is consistent with 187AD in the previous Act whereby the injunctions of any other orders expression did not include compensation and compensation was specifically identified as a separate remedy.  So it cannot be any accident, with respect, that this distinction between 507 and 508 arose.  It is the same distinction which existed in 187AD.

Now, if one accepts that one is drawn inexorably to the conclusion that in these two provisions the injunctions and any other orders formulation cannot be construed as including a power to make orders with respect to monetary compensation having regard to the history and the separate specification of compensation in subsection (5)(b) of section 508. 

Now, these provisions are part of the very same scheme of provisions concerning industrial action in which 494(5) falls, and that identifies the very problem that we raise.  The outcome of the trial judge’s approach and the Full Court’s approach is that the expression here “injunctions, and any other orders” is to be given on the approach that they adopted a quite different meaning than arises in another section of the very same part of the Act.

HEYDON J:   Yes, I think that your time has expired.

MR HATCHER:   Yes.  Can I just give you the reference to where the other provision I was going to take the Court to was ‑ ‑ ‑

HEYDON J:   Well, no, I think the time has expired.

MR HATCHER:   Thank you.

HEYDON J:   Mr Parry, we need not trouble you.

The applicant applies for special leave to appeal in order to challenge the construction given to section 494(5)(b) of the Workplace Relations Act 1996 (Cth) by Justice Moore and by the Full Court of the Federal Court of Australia comprising Justices Gray, Buchanan and McKerracher. Although it is true that in places the legislative language affords a foothold for the construction which the applicant would wish to advance on an appeal, in our opinion there are insufficient prospects that an appeal would enjoy success and, accordingly, the application is dismissed.

I think it is common ground between the parties that the question of costs does not arise.  Thank you.

Could you please adjourn the Court until 10.15 am on Tuesday, 4 September in Canberra.

AT 1.36 PM THE MATTER WAS CONCLUDED