The Queen v The Industrial Commission of South Australia; Ex Parte Adelaide Milk Supply Co-Operative Limited and Others

[1977] 16 SASR 6

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(Judgment by: Bright J)

The Queen
vThe Industrial Commission of South Australia; Ex Parte Adelaide Milk Supply Co-Operative Limited and Others

Court:

Judges: Bray J
Bright J
Mitchell J

Subject References:
Industrial law
Award
Redundancy
Jurisdiction of Industrial Commission to include provisions as to redundancy in award
'Industrial matter'
Industrial Conciliation and Arbitration Act, 1972-1975 (No. 125 of 1972-No. 85 of 1975), ss 6, 25, 82

Hearing date: 14, 15, 19, 20 April 1977
Judgment date: 18 May 1977

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Judgment by:
Bright J

This is an application to make absolute a rule nisi granted by Mitchell J. in Chambers on 1st March, 1977 for an order of prohibition to prohibit the Industrial Commission of South Australia from hearing and determining an application by the Federated Miscellaneous Workers Union of South Australia, South Australia Branch, to insert in the Milk Processing and Cheese Manufacturing etc. award a proposed clause 27 entitled "Job Security Redundancy". The grounds advanced for the rule are that the Industrial Commission of South Australia does not have jurisdiction under the provisions of the Industrial Conciliation and Arbitration Act, 1972-1975, to hear and determine the subject matter of the said application as amended because:

(i)

The matters the subject of the said application and in particular the awarding of payments and other benefits to employees dismissed by reason of redundancy as defined in the said application are not industrial matters as defined in the said Act.

(ii)

Such matters are not matters or things arising from or relating to any industrial matter as defined in the said Act.

(iii)

Section 82 of the said Act provides an exclusive code specifying and limiting the circumstances under which such matters may be within the jurisdiction of the Industrial Commission, and the Industrial Commission has no jurisdiction to act in respect of such matters otherwise and in accordance with the provisions of the said s 82.

(iv)

Such matters are not matters which by any provision of the said Act (other than s 82 thereof) are placed within the jurisdiction of the Industrial Commission.

(v)

It is beyond the jurisdiction of the Industrial Commission to award in terms of the said application or in like terms in such manner as to apply to every employer bound by the said award in respect of every factory in which the said award operates without first taking into account the individual facts and circumstances pertaining to each dismissal or proposed dismissal by reason of redundancy (as defined in the said application) as they occur."

The application purports to be an application to vary clause 27 "Technological Change Redundancies", but I think must in fact be a reference to clause 26 of the existing award. That clause reads as follows:

"An employee whose job becomes redundant due to mechanization, automation or other technological change shall be retrained by the employer, provided such retraining may be done with the company. In the absence of retraining taking place the employee shall receive three months notice or payment in lieu thereof."

I am afraid that it is necessary to set out in its entirety the proposed new clause:

"1. DEFINITIONS

(a)

"Dismissal by reason of redundancy":An employee dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or partly to:

(i)

The fact that his employer has ceased or intends to cease, to carry on the business for the purposes for which the employee was employed by him, or has ceased, or intends to cease, to carry on that business in the place where the employee was so employed, or

(ii)

The fact that the requirements of that business for the employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where he was so employed, have ceased or diminished or are expected to cease or diminish. This includes: technological automation, mechanization change, re-organization, rationalization or centralization in the processing industry; fall in demand of products for whatever reason; or retrenchment of employees or an employee for any reason whatsoever.

(b)

"Business" includes a part of a business.

(c)

"Pay" includes the wages payable to an employee pursuant to Clause 5 Wages, of this award (including loadings) together with any shift work allowances and weekend penalty rates ordinarily paid to the employee.

(d)

"Employee" includes weekly, casual, part time or seasonal employees.

(e)

Unless the contract otherwise requires, the singular shall include the plural.

(f)

The terms of this clause shall apply whenever "dismissal by reason of redundancy" occurs or is likely to occur.

(g)

The terms of this Clause shall apply notwithstanding other provisions of this Award and to the exclusion of the common law Master and Servant principles relating to the contract of employment.

(h)

"Union" means The Federated Miscellaneous Workers' Union of Australia (South Australia Branch).

2. PART A. JOB SECURITY

(i)

NOTICE The employer shall give not less than 3 months notice of dismissal by reason of redundancy. Notice shall be given in writing to the employee or employee's steward and union officers. The expected date at which redundancy is likely to occur shall be provided. If less than 3 months notice is given then there shall be a payment of one week's pay at average weekly earnings for each week less than 3 months.

(ii)

TIME TABLE AND NEGOTIATIONS A time table for the negotiations shall be agreed between the union and the employer within 14 days of notice being given. The principles of negotiations shall be governed by the following factors:

(a)

The employer shall give all necessary information to the employees concerned and to the union prior to the conferences beginning. This shall include written notice to the South Australian Branch Secretary of the union stating the numbers of employees affected and their names and addresses, classifications, length of service with the company, and details of all other entitlements covered by this clause.

(b)

The onus of proof shall be on the employer or employers. They shall table at the conference their justification for the proposals contained in the notices of dismissal.

(iii)

CESSATION OF RECRUITMENT OF NEW EMPLOYEES In the event of notice being given, the employment of new employees in the factory or company shall immediately cease and shall not be recommenced until negotiations have been completed to ensure that all employees affected have had an opportunity to keep their jobs or be reemployed within the company or industry. All practicable efforts shall be made by the union and employer to ensure that all employees affected are offered alternate positions within the company or industry. The level of offered employment will as far as possible be comparable with hourly rates of pay and award conditions prior to dismissal notice and the employer is to give information on this work and the pay available to employees and union officers. All employees given notice shall be allowed time off without loss of pay to seek alternate employment and also to attend interviews for alternate employment including the provisions made by the Commonwealth Employment Service or any other governmental agency.

(iv)

RETRAINING Employers shall where practicable retrain and employ any employee likely to be made redundant provided such retraining may be done within the company and after consultation with the union.

(v)

VOLUNTEERING FOR REDUNDANCY

(i)

During negotiations provisions shall be made by the employer to call for employees who are willing to volunteer for such termination and in the event that an employee does volunteer then the employer shall terminate the employment of such volunteer in preference to any employee who did not volunteer; provided always that such volunteering pursuant to this paragraph shall be deemed not to be a termination of the employment by the employee.

(ii)

Any employee volunteering for redundancy shall be so accommodated and be entitled to the same benefits as other employees made redundant under Part B of these provisions.

(iii)

Any employee volunteering for early retirement and so accommodated shall be entitled to the same benefits as employees made redundant. The ages for early retirement shall be agreed between the union and the employer.

(iv)

In addition the employer shall permit an employee who has been given notice of dismissal of redundancy to abandon the employment at any time during the period of such notice and notwithstanding such abandonment the employment shall be deemed to have been terminated by the employer pursuant to this clause.

(vi)

REDUNDANCY DECIDED ON SENIORITY (FIRST ON LAST OFF) In deciding which employees are to be made redundant the basis shall be the length of service with the company. The employee with the least service shall be the first to be made redundant. This may be varied in special circumstances in agreement with the union relating to the individual merits of the case e.g. relating to age, location etc.

(vii)

OVERTIME Whenever notice has been given overtime shall immediately cease being worked in the factory except in so far as the working of overtime is essential to the maintaining of material supply to keep all retained employees in employment. Essential overtime shall be decided by agreement between the union and the employer.

(viii)

EMPLOYEES TRANSFERRING JOBS WITHIN THE COMPANY OR INDUSTRY All employees who are offered alternate positions within the company or industry may receive the following guarantees in writing with regard to the alternate employment.

(a)

Full continuation of all present entitlements. Membership of superannuation retirement funds to continue without interruption. Existing service entitlements in regard to long service leave, annual leave and sick leave and promotional opportunities are to continue on transfer and be fully portable. If the employee is being transferred from one employer in the industry to another he or she may be given an option to continue in the new employment with no interruption to entitlements or alternatively may be paid out on termination entitlements relating to long service leave, annual leave and sick pay and any other benefits applicable under the award or legislation before starting an entirely new contract of employment with the new employer.

(b)

All employees shall be given every opportunity to present an application for special assistance e.g. retraining in the new job, and compensation e.g. travelling expenses, any reasonable costs incurred in relocation or any other matters subject of which is contained in Part B of this agreement. Such matters are to be adjudicated on the merits and industrial fairness of the particular situation.

(c)

The employers will endeavour to place a redundant employee in a suitable vacancy at an equivalent classification if possible within the employers operations and to achieve this, will where necessary, carry employees surplus to the establishment for short periods.

(d)

An employee has the right on reasonable grounds to refuse any offer of alternate employment without prejudicing his right to entitlements in Part B.

(ix)

NOTWITHSTANDING THE ABOVE PROVISIONS THE FOLLOWING SHALL APPLY:

(a)

No employee over the age of 45 years may be dismissed by reason of his age.

(b)

No employee shall be dismissed by reason of involvement in Union or civil duties or by reason of marriage or pregnancy.

(c)

No employee shall be dismissed by reason of health, mental or antisocial problems which require lengthy rehabilitation.In the above situations the employer shall provide suitable alternative employment.

3. PART B. REDUNDANCY The steps in Part A of this clause shall have been taken.

(i)

An employer who terminates the employment of an employee wholly or substantially on account of redundancy shall

(a)

Give to the employee not less than 14 days prior to such termination an itemized statement in writing of the employee's entitlements pursuant to this sub clause; and

(b)

Give to the employee not later than the time of termination a certificate of service in writing indicating the period of the employee's employment and the reason for the termination; and

(c)

Pay to the employee not later than the time of termination.

1.

Pro rata long service leave for each year of service with the company whether entitled to or not under the Long Service Leave 1967-1972 Act.

2.

The money value of accrued sick leave standing to the credit of the employee pursuant to the sick leave clause.

3.

Any payments due to the employee pursuant to any superannuation or retirement fund benefit scheme and where not payable pursuant to the rules of the scheme shall include the employer's contributions together with any bonus or interest payable.

4.

All other payments due to the employee under this award, any industrial agreement with the employer or any other legal entitlements.

(iii)

Severance Pay In addition to the above the employer shall pay to the employee not later than the time of termination severance pay calculated on the following basis:

(a)

4 weeks pay in respect of each year or part of a years employment and

(b)

an extra weeks pay for each year of employment for each person over 45 years of age

(c)

An additional 4 weeks ordinary pay for each 2 years of employment or part thereof in excess of 10 years employment if over 45 years of age. Provided that in no case shall a person get an amount of severance pay exceeding that which he would have received if he had remained in the employment of that employer until normal retirement age and paid at his current rate, plus bond rate interest per annum plus compounded. (e.g. At the age of 64, 12 months salary plus interest.)

(iv)

Miscellaneous

(a)

Cost of relocation to be reimbursed or compensated:If as a result of any redundancy any employee is required to relocate himself or his family in a new area, district or state, for the purposes of obtaining other employment the following costs shall be born by the employer or employers:

(i)

The cost of transporting the employee and all members of his family to the new location and without loss of wages for the time spent in travelling.

(ii)

The cost of transporting all personal possessions of the employee and his family to the location and up to 2 days paid leave for packing.

(iii)

The cost to the employee of any transaction which is involved in the way of legal fees, transfer fees, stamp duty etc., as a result of buying or selling his/her home or dwelling.

(iv)

The additional cost to the employee where repayments on housing loans or rents are higher in the new location, for a period of one year from the time of arriving at the new location.

(v)

The cost to the employee or his family of any education expenses necessary occurred in relocation (books, uniforms etc.)

(vi)

If a married employee travels ahead of his family to the new location:

(a)

Be provided with single accommodation free of cost up to 3 months or until he takes up residence in the new location whichever is shorter.

(b)

Be provided with a return fare to travel home to visit his family on the weekend every second week.

(vii)

Any other "out of pocket" expenses incurred as a result of relocation.

(b)

Travelling Expenses Where an employee is required to travel to other than his work place due to closure of that workplace all travelling costs incurred by that employee shall be reimbursed and travelling time shall be paid.

(c)

Right to employment Opportunity An employee who has been given notice or has been retrenched shall be given absolute preference of employment in vacancies occurring within the company and the industry. Priority for the first opportunity for employment shall be decided on the basis of service. An employee made redundant and re-employed at any time shall retain continuity of service in respect of seniority, long service leave, annual leave and other service entitlements (except for any period not employed).

(d)

Special Extra Assistance Any employee dismissed by reason of redundancy may make a claim to the employer for special assistance and if necessary an allowance shall be made on the following factors:

(i)

Costs incurred in obtaining alternate employment.

(ii)

Make up pay for 3 months until redundant employees secure new positions at least comparable with his ordinary pay.

(iii)

Any counselling relating to the health or wellfare, social security unemployment benefits and any legal advice for the employee and his family.

(iv)

Any factors relating to age, location and personal disabilities.

(e)

If an employee entitled to the provisions of this clause dies, the employer shall pay the amount to the widow or other dependants.

(f)

An employer shall not within a period of six weeks prior to dismissal by reason of redundancy, transfer an employee from one classification to another or from one part of the business or factory where such transfer may affect the liability of the employee to such termination.

(g)

Any employee or his shop representative shall be given reasonable time off without loss of pay to attend any conferences or meetings dealing with the subject matter of this clause."

The explanation advanced in the application for the proposed variation is as follows:

"Schedule B

1.

Job Security is the aim of this application. Where practicable the right to work should be protected by the award.

2.

A proper and equitable industrial relations system has to be fostered which is based on industrial fair play. This is particularly so given the fact that all economic indicators point to the fact that the severe economic crisis in the dairy industry will last for at least another two years. Accordingly the employers have to recognize that The Federated Miscellaneous Workers' Union of Australia (South Australia Branch) has to be fully involved in minimizing the costs to be born by both employees and employers.

3.

The protection of the right to work involves a number of steps to be taken to maximize job security (see Part A).

4.

If the right to work is unavoidably withdrawn, then the employers should recognize the need for a redundancy payment. If any employee is forced to leave the industry there should be taken steps necessary to compensate the individual for the loss of his or her job. (See Part B).

5.

Since the 1975 redundancy negotiations job insecurity has increased, redundancies have occurred in 1976 and are likely to occur over the next two years. This is due to a number of factors. Not all the factors operate at any one time but there are interconnected causes.

(a)

The world economic crisis is affecting the dairy industry.

(b)

The profitable overseas market for many products in the processing industry have slumped.

(c)

The domestic dairy industry is in a social economic and political turmoil.

(d)

The Federal Government, State Governments and Dairy Industry Associations are encouraging (1) rationalization (2) centralization of production processing, (3) milk production restraints (4) marketing reorganizations.

(e)

There is the continuing introduction of technology and organization changes.

(f)

There are severe seasonal factors operating.

(g)

There are particular local factors that are contributing to problems including old fashioned attitudes by certain employers. These factors are all leading to job insecurity.

6.

The policy of the employers and the Chamber of Commerce on job security formulated recently in negotiations and voluntary conferences before Mr. Commissioner Stevens do not afford sufficient protection and compensation to employees likely to be made redundant. An industry prescription in the Award also is necessary in view of the failure of some individual companies to adequately protect and compensate employees.

7.

The present Clause 27 Technological Change Redundancies does not sufficiently extend to the problems being faced by employees.

8.

The claim is to compensate for loss of security and to encourage workers to accept redundancy without damaging industrial relations. Employers have rights to their property and when they are deprived they are entitled to compensation. Similarly a long term employee should be considered to have analogous to a right of property in his labour-power, his job and consequently a right to security. When this right is removed there should be legal conditions governing prior warning and compensation. The failure to recognize the necessity of affording legal protection to employees could seriously weaken the credibility of the Industrial Commission to act when industrial relations are strained due to the economic crisis.

9.

Specific details of the claim reflect unwritten practices of some employers in the industry. These practices should be codified as award prescriptions.

10.

There has not been in the past adequate assistance or compensation given by State and Federal governments to retrenched employees. The Crawford Industries Assistance Commission report into Dairy Industry Marketing Arrangements is of little assistance at this stage.

11.

The prescriptions sought in the public interest.

12.

Any other reason decided by the Commissioner in equity, good conscience and the substantial merits of the case without regard to legal technicalities or forms or the practice of courts."

The matter came before the Industrial Court on a reference by Mr. Commissioner Stevens of three specific questions:

"February 10.The following reasons for decision were published:

This is a reference to the Court by Mr. Commissioner Stevens of a series of questions of law pursuant to the provisions of s 102 of the Industrial Conciliation and Arbitration Act, 1972-1975 ("the Industrial Act").

The reference arose out of a claim made by the Federated Miscellaneous Workers' Union of Australia (South Australia Branch) ("the Union") on behalf of employees covered by the Milk Processing and Cheese & c. Manufacturing Award. It was prosecuted by a summons dated 12th November, 1976, which sought various substantial amendments to the award.

The claim raised a series of quite important new issues in the industry and, when the matter first came before the Commission on merit, these gave rise to substantial questions of jurisdiction.

The instrument of reference posed a series of seven separate questions to this Court with regard to a number of diverse topics. However, when the proceedings were called on for hearing before us, the principal parties intimated that it was their view, concurred in by the Commissioner, that it would be desirable and convenient that the issues relating to the topic of redundancy should be argued and determined initially-leaving all other matters for consideration at a later date. The reference accordingly went forward on that basis.

In these circumstances we are required to direct our attention to the following three specific questions referred by the Commissioner-

"

1.

Whether the Commission has jurisdiction or power to award generally in terms of proposed Clause 27 of the award.

2.

Whether the Commission has jurisdiction or power to award provisions in respect of the redundancy of employees other than in accordance with the provisions of s 82 of the Industrial Conciliation and Arbitration Act.

3.

If the answer to questions 1 or 2 is yes,

(1)

Whether, and if so to what extent there exists a right to work referred to in clauses 1, 2 and 3 of Schedule B of the application or alternatively a right to security referred to in clause 8 of the said Schedule

(a)

of which the Commission can take cognizance in determining the application;

(b)

which is capable of being protected by an award of the Commission.

(2)

Whether and if so to what extent the Commission has jurisdiction or power

(a)

to compensate an employee for the loss or his or her job;

(b)

to prescribe by award provisions for the determination of compensation to an employee for the loss of his or her job."

"

The Court characterized the matter in this way:

"In essence, these questions taken in their totality, seek the opinion of this Court as to the extent to which the Commission, in discharge of its normal arbitral functions, has jurisdiction or power to make prescriptions dealing with the topic of termination of employment due to redundancy."

The Court referred to the basic grant of jurisdiction to the Commission contained in s 25 of the Act which reads as follows:

"(1) In addition to and not in derogation from the jurisdiction elsewhere conferred on the Commission by this Act the Commission shall, subject to this Act, have jurisdiction to hear and determine-

(a)

any matter or thing arising from or relating to any industrial matter; and

(b)

any question as to the rights of employees in a specified occupation or calling or in specified occupations or callings to do certain work or a certain kind of work to the exclusion of all other employees or to the exclusion of all other employees in all or some specified occupations or callings,but except as provided in this Act the Commission shall not have jurisdiction over any matter or thing that is within the jurisdiction of a Committee."

The Court emphasized the opening words of s 25(1) and commented as follows:

"The emphasis contained in the above citation is ours, and has been made to stress the point that the legislature could scarcely have gone to greater lengths to establish the fact that the general jurisdiction is not to be taken to have been cut down by other specific conferrals of jurisdiction elsewhere contained in the Act unless, of course, it is elsewhere clear beyond doubt that such intention exists. This has an important bearing, for example, upon the potential application of the maxim of construction expressio unius exclusio alterius."

The Court then cited the statutory definition of "industrial matter" contained in s 6 of the Act. That definition reads as follows:

""industrial matter" means any matter, situation or thing or any industrial dispute affecting or relating to work done or to be done or the privileges, rights or duties of employers or employees or persons intending to become employers or employees in any industry and without limiting the generality of the foregoing includes any matter, situation or thing affecting or relating to-

(a)

the wages, allowances, or remuneration of any persons employed or to be employed in any industry, or the piece-work, contract or other prices paid or to be paid therein in respect of that employment, including any loading or amount that may be included in such wages, allowances, remuneration or prices as compensation for lost time and the wages, allowances, or remuneration to be paid for work done during overtime or on holidays, or for other special work, and also the question whether piece-work shall be allowed in any industry;

(b)

the hours of employment in any industry, including the lengths of time to be worked, and the quantum of work or service to be done, to entitle employees therein to any given wages, allowances, remuneration or prices and what times shall be regarded as overtime;

(c)

the age, qualification, or status of employees and the mode, terms and conditions of employment;

(d)

the number or proportionate number of apprentices and improvers and juvenile workers that may be employed by an employer in any industry;

(e)

the relationship of master and apprentice;

(f)

the employment of juvenile workers, or of any person or class of persons in any industry;

(g)

the refusal or neglect, without reasonable cause or excuse, of any person bound by an award or order or an industrial agreement as to employment in any industry, to offer or accept employment, or to continue to be employed upon the terms of such award, order or agreement;

(h)

any established or alleged established custom or usage of any industry, either generally or in any particular locality;

(i)

the monetary value of any allowances granted to or enjoyed by employees;

(j)

any matter that is prescribed for the purposes of this definition;

(k)

all questions of what is fair and right in relation to any industrial matter having regard to the interests of the persons immediately concerned and of society as a whole."

The Industrial Court after considering the authorities ruled as follows:

"The Commission has jurisdiction and power to make prescriptions dealing generally with the rights and obligations of employers and employees in the industry in question if employment is terminated by virtue of redundancy, as defined in the claim before the Commission, save that no prescription may be made in relation to any redundancy arising by virtue of the introduction of automation or like technological changes otherwise than within the ambit of the provisions of s 82 of the Industrial Conciliation and Arbitration Act, 1972-1975."

I should refer to s 82 of the Act before proceeding. It reads as follows:

"Notwithstanding any other provisions of this Act the Commission or a Committee may, upon an appropriate application to it, insert in an award, whether by variation of an existing award or in a new award, provisions relating to the following matters-

(a)

the obligations, duties and responsibilities of any employer upon the introduction or proposed introduction by that employer of automation or other like technological changes in the industry in relation to which he is an employer;

(b)

the employees to whom notices of termination of service (being not less than three months) are to be given on account of such introduction or proposed introduction and the form and effect of such notices and the consequences of failure to give such notices including, without limiting the generality of the foregoing, requirements that the ordinary rate of pay shall be paid for a period being the difference between the notice given and that required to be given under the provisions inserted in the award pursuant to this section and the period of notice to be given shall be deemed to be service with the employer for the purposes of the Long Service Leave Act, 1967, as amended.

(c)

the notification to be given by the employer to the permanent head of such notices of termination of services;and

(d)

such other matters as the Commission or a Committee deems relevant to or consequential upon the matters referred to in paragraphs (a), (b) or (c) of this section."

The word "redundant" does not occur in the Act. In its industrial sense it is not defined in the Oxford Dictionary. The application which I have already set out attempts a definition for the purpose of the proposed award. A consideration of the cases leads me to think that the question of the redundancy of an employee is linked to the question of the continued utility of the job which he is performing. In other words it does not relate to the personal competence of the employee in the job which he is performing. If I am right in this, then in its widest form the concept of redundancy connotes that an employee becomes redundant whenever (and for whatever reason) his employer no longer desires to have performed the job which that employee was doing. A wide variety of instances are contained in the definition clause in the application but they all seem to fit into this connotation, even the reference to retrenchment of employees for any reason whatsoever.

It is important to know in what sense the word redundancy is used, because it is necessary in due course to apply the word with that meaning annexed to it both to the definition of industrial matter and to s 82 of the Act.

The Industrial Court has not seen fit to define the term redundancy except by relating its reasons to the definition contained in the application.

I respectfully agree with the approach of the Industrial Court, which started by a consideration of s 25 which is the basic grant of jurisdiction. If redundancy as I have defined the term, does not come within the definition of "industrial matter" then there is no initial grant of power and s 82 stands alone. If on the other hand redundancy comes within "industrial matter" then, but for s 82, the Commission would have a general power to deal with redundancy. If that general power is cut down it must be by reason of the effect of s 82.

Mr.Bleby submitted a carefully prepared argument to us and I shall deal first with his submissions on the content of the term "industrial matter". At the forefront of his argument was the submission that on a true analysis the claim seeks compensation to an employee for the deprivation of the right he is alleged to have to his job, or compensation for loss associated with his so-called "right to work". The right to such compensation, it is claimed, is not a right recognized by the common law or by statute and has never formed a part of the law of employment in South Australia. Mr. Bleby conceded the difficulty involved in drawing a line between industrial matters and social matters, but he claimed that nevertheless a line had to be drawn and that a reward for service can be distinguished from a reward for loss of the right to work.

A right connotes an obligation and it is as well to put the concept also in the converse form. The question then is whether the Commission is empowered to direct that an employer who has hired labour to carry out particular types of work is not to be at liberty to cease to carry out those types of work and to terminate the employment of the persons doing the work, except under the penalty of providing compensation. I put the matter in this absolute way because it seems to me that as I have defined the word redundancy there is not necessarily contained in it any concept that the employee has been working for any specified length of time. It is true that the application measures the compensation by reference to the age of the employee and the time he has been working but that is only one way of assessing compensation for redundancy and we are here considering power of the Commission and not methods of exercising the power.

Mr. Bleby put it to us that essentially the Commission has the duty of regularizing the relationship between employer and employee according to existing modes. He claimed that "job security" as contemplated by the application is not an existing mode and is not part of the employer employee relationship as now understood in this State.

I have no doubt that in the field of industrial law as in other fields of law there is a developing body of doctrine. As Mr. Quick reminded us, industrial concepts are not static and the Industrial Court itself referred to the dynamic nature of industrial law. So I myself would place much reliance upon the views of Judges with long experience in industrial law as to the limits for the time being of the concept of the employer relationship. In so far as those views relate solely to the interpretation of a statute they are of limited assistance, but in so far as they express general concepts they appear to me to be of great assistance. It is here that I find myself particularly assisted by the judgment of the Industrial Court. In that judgment three persons of long experience in industrial law find no inherent repugnance to the notion that redundancy payments relate to the employer-employee relationship. They examine the decisions of a number of other tribunals in various parts of Australia where the matter has been considered and they derive considerable support for the view that redundancy payments can be so characterized and no support for the view that they ought not to be. It is true that in not all of those cases was the question of power to grant redundancy payments actively canvassed. But a silent concession of power has considerable force as it seems to me in relation to such a matter.

We were referred to such cases as Australian Federation of Air Pilots v. The Flight Crew Officers Industrial Tribunal ^[12] in which the question of what is an industrial dispute was considered by the High Court in relation to the Commonwealth statute. I do not think that the matter in difference in that case can fairly be described as analogous to the matter in difference in the present case. Mr. Quick drew our attention to the limitations of power which necessarily flow in the federal legislation from the grant of legislative competence contained in s 51(xxxv) of the Commonwealth Constitution. We may have to consider that matter at some stage but for myself I prefer not to embark on such a difficult matter until it becomes necessary. At least it can be said that the State Act is not to be regarded as fettered by any constitutional limitations of power which may be regarded as fettering the Commonwealth Act. A more apposite citation is the Qantas Case (In the matter of an application for a writ of mandamus against the Flight Crew Officers Industrial Tribunal; Ex parte Australian Federation of Air Pilots ^[13] ). The argument there was as to whether the employer had rightly decided to give notices to certain employees on the ground of redundancy. The High Court upheld the decision of the Flight Crew Officers' Industrial Tribunal that that did not constitute an industrial dispute. It is, however, noteworthy that no question was agitated in that case with regard to the concept of redundancy itself. Reg. v. Portus; Ex parte A.N.Z. Banking Group Ltd. ^[14] is of importance not so much for the actual decision as for the approach which was confirmed in that case. As I read the reasons for judgment of their Honours in that case, considerable emphasis was placed upon the broad approach that was required when a consideration was made of the employer-employee relationship.

Mr. Bleby put his argument in another way by submitting that the provision of the necessity for a lengthy period of notice in case of redundancy was an interference with a fundamental right of the employer, namely the right to dismiss. Mr. Bleby put this as a fundamental incident of the employer's rights but I think with respect it can rather be regarded as a fundamental term of the relationship between employer and employee. There is nothing in the Act which specifically relates to period of notice on dismissal. Section 79 which gives express power to provide for the length of hiring may be taken impliedly as indicating power to provide for length of notice. Usually one would imagine that the period of notice would be the same as the period of the hiring but is this necessarily so? Once it is conceded that the Commission has the power to fix the length of notice required on terminating a hiring is there any reason to doubt that power exists to provide for a period of notice which is in excess of the term of the hiring?

Mr. Bleby's next argument was that the Parliament had in fact legislated to create and regulate some new rights and duties between employers and employees not hitherto recognized by the common law, thereby evidencing its intention that such matters do not otherwise come within the general regulatory powers of the Commission. He referred in particular to apprentices, restriction of freedom of employment of juveniles, preference to unionists, and a number of other sections such as ss 29(1)(d), 30, 156, and 157, which, he submitted, related to matters foreign to the employer-employee relationship. With respect I do not find this argument convincing. Either the question of redundancy is included in s 25 or it is not. Either redundancy payments are at the present time an incident of the relationship between employer and employee or they are not. In my opinion, the general concept of redundancy as I have attempted to define it does at the present time come within the concept of "industrial matter".

I come now to Mr. Bleby's further argument founded upon s 82 of the Act. First of all it should be noted that s 82 appears in part VI of the Act under the general heading "General Conditions of Employment". It is not therefore, or so it is said, in a part where one would expect to find provisions granting power. Nevertheless I notice that in the same part there is a direction in s 80 as to the obligation to pay sick leave and in s 81 an obligation to pay for annual leave. I think therefore that there is little merit in this contention. Next I notice that s 82 begins with the words "notwithstanding any other provisions of this Act". I take those words to mean that this particular section is to apply in its entirety despite any limitations that there might be elsewhere on its operation. In this connexion it is curious that there do not seem to be any other express provisions limiting the operation of the matters contained in s 82. It might be contended that s 79, which provides for periods of hiring, has an impact on s 82 but I doubt whether that is really so. Then I notice that s 82 does not apply automatically, but gives a discretion to the Commission or a committee, and that discretion is exercisable upon an appropriate application and not automatically. Section 82(a) is directed to employers but not or at any rate not specifically to employees.

Nobody was able to particularize the matters included in s 82(a), but it was suggested that they might include notice to unions, period of such notice, non-dismissal of employees in certain circumstances and provision for training periods for employees. At all events s 82(a) does not expressly apply to the circumstances that arise when an employer desires to dismiss an employee. Section 82(b) provides for the consequences of an intention by the employer to serve notices of termination of service. It does not expressly purport to authorize termination of service, but it does fix a minimum period of three months when such notice of termination is given and it authorizes the imposition of sanctions to ensure proper notice. Section 82(c) merely provides for notice, by the employer to the permanent head, of notices of termination, and s 82(d) provides for matters which the Commission or a committee may deem relevant or consequential. Nowhere in the section is the word redundancy used. The view of the Industrial Court was as follows:

"We have given careful consideration to the arguments put by Mr. Bleby, but are unable to accept the proposition which he advanced. Particularly having regard to the introductory language to be found both in ss 25 and 82, we are of opinion that it was the intention of the Parliament in what is, after all, remedial legislation to establish specific guidelines within which any prescriptions as to redundancy must be arrived at, where the redundancy in question arises out of the introduction by an employer or an industry of automation or like technological changes. To that extent it is expressio unius as to power and, in our view, the Commission may only make prescriptions of the nature contemplated. In the case of redundancy arising for any other reason the jurisdiction and powers of the Commission remain untrammelled."

Clearly s 82(b) comes within my suggested definition of redundancy. It relates to the obligations of on employer when he desires to terminate the services of certain employees on the ground of certain types of redundancy. I have already held that taken alone s 25 can properly be construed as giving power to make directions on the subject of redundancy in general. Is then s 82 to be regarded as being so specific as to cut down those general powers and to restrict the Commission to making provisions with respect to redundancy only in respect of the matters embraced in s 82(a)? The Industrial Court thought not. If s 25 had included any specific reference to redundancy or to topics which could fairly be regarded as embracing the concept of redundancy specifically I should have agreed.

But where there is a general grant of power as in s 25 and the topic of redundancy is included only by implication and where later as in s 82 there is a specific reference to redundancy in certain circumstances I think that the more likely conclusion is that the Parliament had regard to the possibility of redundancy in the circumstances specified in s 82 and did not contemplate redundancy that could occur in other circumstances. Automation and technological change bring about changes in work patterns in existing successful business. The business continues and has the same objectives but it achieves its objectives in a different way. Section 82 says that the employees in the business who cease to be employed by reason of those changes are to receive some form of compensation. I think that the provisions of s 82 are too specific to allow a continued existence of a general grant of power under s 25.

In reaching the above conclusion I do not overlook the fact that some of the matters referred to in the application under the heading of "Job Security" could perhaps be considered by the Commission under some other rubric. For example, there appears to be no specific reason why the Commission could not, if it so desired, provide for a period of notice as a general rule in excess of the period of the contract of hiring. But here the application is linked specifically to the concept of redundancy, and I think therefore that we must approach it on the basis that what is sought is compensation for a form of redundancy not included in the specific kinds of redundancy that are mentioned in s 82. On that basis I think the application must fail for want of jurisdiction. I find it impossible to think of any reason why s 82 should have been included if power to do everything that was in s 82 was already included in s 25. And even though I have already held that in the absence of s 82 s 25 might be so construed I cannot continue in that view when I find the specific provision that is made in s 82.

Grounds (i), (ii) and (iii) of the rule nisi are as follows:

"

(i)

The matters the subject of the said application and in particular awarding of payments and other benefits to employees dismissed by reason of redundancy as defined in the said application are not industrial matters as defined in the said Act.

(ii)

Such matters are not matters or things arising from or relating to any industrial matter as defined in the said Act.

(iii)

Section 82 of the said Act provides an exclusive code specifying and limiting the circumstances under which such matters may be within the jurisdiction of the Industrial Commission, and the Industrial Commission has no jurisdiction to act in respect of such matters otherwise and in accordance with the provisions of the said s 82."

In my opinion, the rule should go in respect of those three grounds. Ground (iv) is as follows:

"

(iv)

Such matters are not matters which by any provision of the said Act (other than s 82 thereof) are placed within the jurisdiction of the Industrial Commission."

I would omit that ground from the rule. Ground (v) is as follows:

"

(v)

It is beyond the jurisdiction of the Industrial Commission to award in terms of the said application or in like terms in such manner as to apply to every employer bound by the said award in respect of every factory in which the said award operates without first taking into account the individual facts and circumstances pertaining to each dismissal or proposed dismissal by reason of redundancy (as defined in the said application) as they occur."

I do not think that it is necessary that we should include this ground in the rule. Since I have already expressed the opinion that the rule should go it is unnecessary to provide for specific instances. In any event if there were general power with regard to redundancy, ground (v) merely goes to the discretion of the Commission to make particular provisions in particular cases. It is my opinion, therefore, that the rule should be made absolute on grounds (i), (ii) and (iii).