W and M Meat Transport P/L v Westerland

[2001] QSC 6

SUPREME COURT OF QUEENSLAND

CITATION:

W & M Meat Transport P/L & Ors v Westerland & Ors [2001] QSC 006

PARTIES:

W & M MEAT TRANSPORT PTY LTD ACN 009 717 846, NEVILLE OGBOURNE, TONY ROBINSON, HARRY DEAGAN, JOHN O’REILLY, IAN LEE, KEVIN NEWELL, DENNIS BOLLARD, SELWIN OGBOURNE, CLIFF PARKER
(appellants)
ANTHONY WESTERLAND
(first respondent)
STEVEN COCHRANE, ASHLEY DALE, CRAIG PAYNE, RODNEY BONNICI, TREVOR ROBERTS

(second respondents)

FILE NO:

Appeal No 5159 of 2000

DIVISION:

Trial Division

PROCEEDING:

Appeal from Anti-Discrimination Tribunal

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

19 January 2001

DELIVERED AT:

Brisbane

HEARING DATE:

11 January 2000

JUDGE:

Muir J

ORDER:

The appeal is dismissed

CATCHWORDS:

ANTI-DISCRIMINATION LAW – jurisdiction of Anti-Discrimination Tribunal.

PROCEDURE – Supreme Court procedure – whether summary determination appropriate without factual enquiry.

Acts Interpretation Act  1954 (Qld), s 14H(2)
Anti-Discrimination Act 1991 (Qld), s 15(1), s 15(2)
Industrial Organisations Act 1997 (Qld), s 237, s 238 , s 300
Industrial Relations Act 1990 (Qld), s 13.107, s13.108

Dey v Victorian Railway Commissioners (1949) 78 CLR 125, referred to
General Steel Industries Inc v Commission for Railways (NSW) (1964) 112 CLR 125, referred to
Munnings v Australian Government Solicitor (1993) 68 ALJR 169 at 171, referred to
Wardley Australia Ltd v Western Australia (1992) 175 CLR 414, compared

COUNSEL:

J E Murdoch SC for the appellant
D C Rangiah for the first respondent
P E Smith for the second respondent

SOLICITORS:

Minter Ellison for the appellant
Reidy & Tonkin for the first respondent
Paul Everingham & Co for the second respondent

1. On 17 May 2000, the learned President of the Anti-Discrimination Tribunal constituted under the Anti-Discrimination Act 1991 (“the Act”) handed down a decision dismissing an application by the Appellants for a determination on the ground that, by reason of the operation of s 15(2) of the Act, the Tribunal had no jurisdiction to hear a number of complaints referred to the Tribunal by the Anti‑Discrimination Commissioner on 16 August 1999 and 1 September 1999.

1. The appellants appeal against that decision. Under s 217 of the Act, a party to a proceeding before the Tribunal may appeal to the Supreme Court against a Tribunal’s decision on a question of law.

1. The grounds of appeal are that –

“The Tribunal erred in law in holding that s 15(2) of the …Act did not apply to the discrimination alleged by the respondents in the Proceedings.”

1. The proceedings are those referred to in paragraph [1] hereof.  The complaint to the Commission which initiated each of the proceedings alleged discrimination at work because of “trade union activity.” 

1. Section 15 of the Act relevantly provides:

“15 (1)   A person must not discriminate -

(a)       in any variation of the terms of work; or

(b)in denying or limiting access to opportunities for promotion, transfer, training or other benefit to a worker; or

(c)       in dismissing a worker; or

(d)      …

(e)       …

(f)by treating a worker unfavourably in any way in connection with work.

(2)Subsection (1) does not apply to discrimination on the basis of trade union activity if the Industrial Relations Act 1999, s 105 applies.”

1. Prior to the amendment of s 15(2) on 1 July 1999 the reference in the subsection to a statutory provision was to s 13.107 or s 13.108 of the Industrial Relations Act 1990.

1. The Industrial Relations Act 1990 was repealed on 29 March 1997 by s 494 of the Workplace Relations Act 1997 and the Industrial Organisations Act 1997 was enacted on the same day. The explanatory notes to the Industrial Organisations Bill 1996 stated, inter alia, -

“This Bill and the Workplace Relations Bill 1996 provide a new framework for the industrial relations system in Queensland.”

1. The respondents, before the Tribunal and on appeal, argued that s 15(2) could not be read as referring to s 237 and s 238 of the Industrial Organisations Act. These provisions are set out below.

1. The learned President rejected that contention accepting that, by operation of s 14H(2) of the Acts Interpretations Act 1954, the reference in s 15(2) of the Act to s 13.107 or s 13.108 of the Industrial Relations Act 1990 should be taken to be a reference to s 237 and s 238 of the Industrial Organisations Act 1997.   The President also relied on s 300 of the Industrial Organisations Act to arrive at the same conclusion. 

1. S 14H(2) and s 300 respectively provide –

“14H (2)In an Act, a reference to a provision of a law (including the Act) includes a reference to the following-

(a)the provision as originally made, and as amended from time to time since it was originally made;

(b)if the provision has been omitted and remade (with or without modification and whether in the law or another law) since the reference was made – the provision as remade, and as amended from time to time since it was remade.”

“300(1)In an Act or document a reference to a provision of a former industrial Act may, if the context permits, be taken to be a reference to any corresponding provision that may be enacted in this Act.”

1. Mr Rangiah for the first respondent and Mr Smith for the second respondents submitted that s 14H(2) did not apply because s 13.107 of the Industrial Relations Act was not “re-made” as s 237(1) and s 238 of the Industrial Organisation Act.  Rather, it was asserted that s 237(1) and s 238 were derived from s 298K and s 298L of the Workplace Relations Act 1996 (Cth) and that s 237(1) and s 238 were far broader and different in substance from s 13.107. It was submitted that, for essentially the same reasons, s 300(1) could not be regarded as a “corresponding provision” with respect to s 13.107.

1. As I have already noted, the respondents’ submissions were rejected by the President. However the President concluded that s 15(2) had no application to the facts under consideration. The process of reasoning which lead to that conclusion was as follows-

(a)        The respondents are members of the Transport Workers’ Union of Australia and the Transports Workers’ Union of Australia, Union of Employees (Queensland Branch).

(b)        The Transport Workers’ Union of Australia (“TWU”) is a federation of state branches.

(c)The Transport Workers’ Union of Australia, Union of Employees (Queensland Branch) is registered under the Industrial Organisations Act.

(d)        The state and federal bodies are “the one and the same body”.

(e)        The purpose of having a state registered organisation is “to derive the advantages which flowed from state registration.”

(f)        The respondents were employed pursuant to the Transport Workers’ Award 1983, a federal award and the respondents are members of a federal union.

(g) Section 237 and s 238 do not apply to the respondents in their capacity as members of the state registered body because such membership is dependent on their primarily being a member of the federal body. Although the Queensland registered body is an “industrial association” within the meaning of that expression in s 237 and s 238, the federal body is not an industrial association.

1. I have difficulty in accepting the validity of the latter conclusion and the reasoning which lead to it.   However, on the view I take of the matter, it is unnecessary and, I think, undesirable for me to express a concluded view on the point.

1. It was submitted by Mr Rangiah and Mr Smith that the appellants’ application to the Tribunal was, in substance, a strike out application, and that in order to succeed it needed to satisfy the tests propounded in cases such as Dey v Victorian RailwayCommissioners[1], General Steel Industries Inc v Commission for Railways[2] and Munnings v Australian Government Solicitor[3]. It was submitted that the tests could not be satisfied as a factual enquiry was necessary before it could be finally determined by the Tribunal that the conduct complained of by the respondents constituted acts prohibited by s 237(1) and s 238 of the Industrial Organisation Act.

   [1](1949) 78 CLR 125

   [2](NSW) (1964) 112 CLR 125 at 129-30

   [3](1993) 68 ALJR 169 at 171

1. S 237 and s 238 respectively provide –

“237.(1) An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following –
(a)         …
(b)         injure an employee in the employee’s employment;

(c)alter the position of an employee to the employee’s prejudice;

(d)        …

(e)discriminate against another person in the terms or conditions on which the employer offers to employ the other person…”

“238.(1) Conduct mentioned in s 237(1) or (2) is for a “prohibited reason” if it is carried out because the employee, independent contractor or other person concerned-

(a)        is, has been, proposes to become or has at any time proposed to become an officer, delegate or member of an industrial association; or

…

(i)has made or proposes to make any inquiry or complaint to a person or body having the capacity under an industrial law to seek-

(i)        compliance with that law; or

(ii)the observance of a person’s rights under an industrial instrument; or

(j)has participated in, proposes to participate in or has at any time proposed to participate in a proceeding under an industrial law; or

(k)         ….

(l)for an employee … who is a member of an industrial association that is seeking better industrial conditions – is dissatisfied with his or her conditions; or

(m)…

(n)as an officer or member of an industrial association, has done, or proposes to do, an act or thing to further or protect the industrial interests of the industrial association, being an act or thing that is –

(i)        lawful; and

(ii)within the limits of an authority expressly conferred on the employee, independent contractor or other person by the industrial association under its rules; or …”.

1. In the proceedings the respondents complained of a range of matters including the denial of opportunities for overtime and weekend work, and not being provided with income earning opportunities given to other drivers. Whether or not that conduct falls within s 237(1) and, in particular, s 237(1)(b) requires findings of fact and a careful analysis of the relevant facts as found. It is not an exercise which ought to be done before the facts are determined. Even if, which I greatly doubt, it was appropriate to determine the facts in relation to the possible application of the matters listed in s 237(1)(a) to (e) inclusive, it would be necessary also to determine whether or not any of those matters had been done “for a prohibited reason”. In order to determine whether conduct is carried out for a “prohibited reason” within the meaning of s 238, it is necessary to make a factual determination about the appellants’ reason(s) for engaging in the alleged conduct. Questions of that nature do not readily lend themselves to summary determination.

1. Questions of the kind under consideration should not be decided in proceedings in advance or in lieu of trial except in very clear cases.[4] A determination of whether conduct falls within the scope of ss237 and 238 of the Industrial Organisation Act is one which, as a general proposition at least, needs to be resolved by reference to facts found after an investigation of the relevant circumstances rather than upon some abstract basis. Mr Murdoch for the appellants submitted that the respondents had sufficient opportunity to adduce whatever evidence they wished on the hearing before the Tribunal and should not be permitted now to argue that the Tribunal’s order should be upheld on the basis that a preliminary determination of the matter was inappropriate.

   [4]cf The observations in Wardley Australia Ltd v Western Australia(1992) 175 CLR 514 at 533

1. That submission overlooks the fact that at the hearing before the Tribunal, Ms Johnson, who appeared for the respondents, made it plain that the respondents had not adduced the evidence they would wish to adduce on trial. She pointed out also that disclosure had not been had. I understand that it is customary for the Tribunal to require the delivery of pleadings. No pleadings had been delivered.  It is plain that the Tribunal, with respect, correctly treated the hearing as a preliminary one which concerned the determination of a point of law.

1. Consequently, the Tribunal did not err in dismissing the application. I dismiss the appeal. I will hear submissions on costs.