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: Bray 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:
Bray J

This is an application for prohibition against the Industrial Court.

I have read the reasons for judgment of Bright J. and Mitchell J. in which the points at issue and the relevant provisions of the award applied for and of the legislation and of the history of the proceedings are set out. I will not repeat what there appears except where necessary to make myself intelligible.

The respondent Association has applied to the Industrial Commission for a variation of the Milk Processing and Cheese Manufacturing & c. Award to cover what is called redundancy. The application asks that not less than three months notice be given of dismissal by reason of redundancy. It asks that certain payments be made to employees dismissed for redundancy. It also seeks various other provisions in the event of contemplated dismissal for redundancy, including, for example, dismissal in order of seniority and the cessation of the recruitment of new employees. The relevant parts of the application are set out in full in the reasons for judgment of Bright J.

The term "redundancy" is not defined: but the concept of dismissal for redundancy is expressed in the following words:

"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, mechanisation 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."

Various questions of law arising out of this application were referred to the Industrial Court by the Commissioner before whom the matter came. Those questions involved the jurisdiction of the Commission to make an award in the terms sought. The Industrial Court held that there was jurisdiction. It did not, however, see fit to answer all the specific questions asked. Instead it delivered a ruling in the following terms so far as relevant:

"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. The Court considers it inappropriate on the present reference to give an opinion as to each of the detailed proposed prescriptions contained in the claim as these were not debated before it and may arise for further consideration as to jurisdiction or power during the course of the proceedings before the Commission when prosecuted upon the merits."

The prosecutors for prohibition, the employers who are parties to the award sought to be varied, have obtained a rule nisi.

The respondent Association has not appeared, but Mr. Quick appeared before us on behalf of the Attorney-General to oppose the prohibition sought. We gave him leave to appear pursuant to the provisions of Order 59, rule 8.

The grounds on which the order nisi were granted are set out by Bright J. Mr. Bleby, for the prosecutors for prohibition, divided his argument into three heads-

1.

That the subject of the application, and in particular the redundancy benefits sought, did not fall within the definition of "industrial matter" in s 6 of the Industrial Conciliation and Arbitration Act, 1972, as amended.

2.

That s 82 of the Act provided an exclusive code on the subject and that the Industrial Commission had no jurisdiction to deal with any question of redundancy except in accordance with its terms.

3.

That the individual facts and circumstances pertaining to each dismissal or proposed dismissal by reason of redundancy were so diverse and multifarious that there was no jurisdiction to make an award in the general terms sought.

I agree with the conclusions of Bright J. and Mitchell J. with regard to the first and the third of these arguments and there is not much that I desire to add with regard to them. Before I discuss them, however, I should begin by saying that I agree with Bright J. that the concept of redundancy in the context we are discussing seems to be simply this, that a job becomes redundant when the employer no longer desires to have it performed by anyone. A dismissal for redundancy seems to be a dismissal, not on account of any personal act or default of the employee dismissed or any consideration peculiar to him, but because the employer no longer wishes the job the employee has been doing to be done by anyone.

In my reasons for judgment in the Paid Study Leave case (Reg. v. Industrial Commission; Ex parte The Fire Brigade Board ^[1] ) I gave my reasons for thinking that it was within the jurisdiction of the Industrial Commission to grant an award of paid study leave to attend trade union education courses. Such a matter, I thought, was a matter, situation or thing affecting or relating to the privileges and rights of employees and the mode, terms and conditions of employment within the definition of "industrial matter" in s 6 of the Act. Very similar reasoning, in my view, applies here. The grant of some additional security, in the event of his job becoming redundant, by way of extended notice or additional pay on termination, would clearly, in my view, be a privilege or right given to the employee. It would also be one of the terms and conditions of his employment. Clearly it is a matter for which at common law he could have negotiated when considering whether to enter into the particular contract of employment. This conclusion, I think, is supported by the reasoning of the New South Wales Industrial Commission in Re Clerks (State) Award ^[2] . I will not repeat the analysis of or the extracts from that judgment contained in the reasons for judgment of Mitchell J. I think it is also supported by the remarks of Stephen J. in Reg. v. Portus; Ex parte A.N.Z. Banking Group Limited ^[3] , where the learned Judge said:

"The necessary quality of a subject matter demanded which is concerned with reward for work performed is, I think, that it be, of itself, inherently associated with the relationship of employer and employee and not with some other type of relationship. Reward by way of remuneration of course conforms most clearly to such a test; the payment of wages or salary is inherent in the relevant relationship. Likewise demands for, for instance, paid annual holidays or retirement benefits (disregarding, for present purposes, any consequences arising from the fact that awards are necessarily of limited duration) would, I think, satisfy this requirement; even if the relationship existing between parties to a demand of this character was unknown it would, nevertheless, from its very nature, be seen to be associated with some employer-employee relationship."

There is a clear analogy between some of the benefits sought and retirement benefits. There is also, I think, a reasonable analogy to the right to payment of compensation in respect of injury from illness or accident held to be an industrial matter in R. v. Hamilton Knight; Ex parte The Commonwealth Steamship Owners Association ^[4] .

Mr. Bleby made a forceful plea to us on general social and economic grounds. He said that the burden of making the appropriate adjustments in social justice to those whose jobs have become redundant is one which should fall on society as a whole and not on the individual employer. He referred to the English Redundancy Payments Act, 1965, under which a redundancy fund is established from which the employer can claim partial reimbursement for the payments he is forced to make to an employee under the statute. He said that what was really claimed was compensation for the loss of the right to work which, he said, is a new right hitherto unrecognized either at common law or by statute. These are forceful arguments which will no doubt receive from the Commission the attention they deserve, but, in my view, they go to merit and not to jurisdiction. The rights claimed are new, but the Commission has power to create new rights and if they are created they will, in my view, be rights pertaining to the employer-employee relationship. Questions of notice and payment in lieu of notice and payment on dismissal of monetary benefits, such as pro rata payment for holiday pay and long service leave, certainly pertain to that relationship. They spring from the terms of the contract, whether negotiated expressly, implied by common law, or superimposed by statute or statutory authority.

As to the third argument, I agree with the view of the Industrial Commission. It is premature at this stage to descend to a minute analysis of the relief sought in the application. It may be found that some of the incidental demands, such as a demand that no new employees shall be engaged after notice of dismissal on the ground of redundancy, or a demand for negotiations between the employer and a third party, such as the union, are demands which it is beyond the jurisdiction of the Industrial Commission to grant, on the ground that they do not relate to the rights and obligations of employers and employees inter se but to relations between the employer and third parties, the union or the prospective new employees. I express no opinion on these matters, but nothing in this decision will prevent a fresh application for prohibition or certiorari directed to the precise issues involved. The case was argued before us on general grounds and not with regard to each individual provision of the application.

What is asked for is a variation to an award, an award which binds certain parties. There is no reason to suppose that the Commission will not take into account the differing circumstances in which redundancy or dismissal for redundancy may occur and make appropriate adjustments. There is, of course, a right of appeal to the Full Commission under s 96. There is nothing here corresponding to the attempt prohibited by this Court in R. v. The President of the Industrial Court; Ex parte Hume Pipe Co. (Australia) Ltd. ^[5] to lay down in a case between particular parties general principles relating to standard working hours in South Australia.

Nor, apart from s 82, can I see anything in any of the sections of the Act to which we were referred by Mr. Bleby which would cut down the general jurisdiction of the Commission conferred by s 25 to hear and determine any matter or thing arising from or relating to any industrial matter. To s 82 I now turn. Its interpretation seems to me to be the crucial point in the case and the only one about which I have felt much doubt. It raises, to my mind, questions of considerable difficulty.

Section 82 reads as follows:

"82. 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."

Clearly a formidable argument could be, as it was, based on its language, and if it were considered in isolation that argument might be almost irresistible. The section is permissive and apparently empowering. It says that the Commission or a Committee "may" do certain things. It does not say, as did the legislation dealt with in the Clerks Award case ^[6] previously referred to, that the Commission shall insert certain provisions in awards. It does not, in short, direct how a pre-existing jurisdiction shall be exercised, it seems to create a new jurisdiction. It begins with the words "Notwithstanding any other provisions of this Act". Presumably, therefore, there is something somewhere in the Act which but for s 82 would stop the Commission from doing what that section empowers it to do. What it empowers it to do is to make suitable adjustments to the employer-employee relationship on the introduction or proposed introduction by the employer of automation or other like technological changes (all of which are hereafter compendiously referred to as automation), including a minimum period of three months notice of termination of employment. Presumably, therefore, the Commission could not have prescribed rules about the consequences of redundancy arising through automation without s 82. But if it had no power to do that, it could have had no power to deal with redundancy arising through some other cause. Therefore it would be beyond jurisdiction to grant the application, except with regard to redundancy through automation, and on that topic the Commission is restricted to the precise powers conferred by s 82.

It is not an answer, it is claimed, to say that the object of s 82 is to ensure a minimum period of three months notice in the event of dismissal for redundancy caused by automation. That object could have been achieved by very different language, by a simple prohibition to the Commission against exercising its jurisdiction except on the terms contained in the section. The language is apt to express the grant of a new jurisdiction with limitations rather than the imposition of limitations on an already existing jurisdiction.

Nevertheless, with all respect to those who hold the contrary view, I have finally come to the conclusion that the argument should not prevail.

It is necessary to set against s 82 s 25, the relevant words of which are as follows:

"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."

I draw attention to the opening words "In addition to the jurisdiction elsewhere conferred on the Commission by this Act". The Commission therefore has jurisdiction to deal with anything relating to an industrial matter in the proper interpretation of that phrase, in addition to the jurisdiction conferred by s 82. If the opening words of s 82 would seem to subordinate s 25 to s 82, the opening words of s 25 would seem to subordinate s 82 to s 25. At least they cancel out. "In addition to" neutralizes "Notwithstanding any other provisions of this Act".

Next, I turn to the history of the legislation. In the Act of 1967, the previous statute, the definition of "industrial matters" is indistinguishable for relevant purposes from the definition of "industrial matter" in the present Act. The same words about the privileges and rights of employees and the mode, terms and conditions of employment are present in each case. Section 25 of the earlier Act confers jurisdiction on the Commission to deal with all industrial matters, but there are no prefatory words such as those beginning with the phrase "In addition to" in the present s 25, and there is no analogue to s 82.

If I am right, therefore, in the opinion I have expressed on Mr. Bleby's first argument, namely that the relief sought in the application falls within the definition of "industrial matter" considered in isolation, the Commission possessed jurisdiction before the Act of 1972 to grant the relief sought in the application, or the substantial part of it. It seems to me very unlikely that Parliament would have intended to take that away by the enactment of s 82. And, indeed, when Parliament did enact s 82 it also added the present prefatory words to the new s 25.

But even if Parliament in enacting s 82 was under a misapprehension as to the width of the definition of "industrial matter" and therefore as to the width of the jurisdiction conferred by s 25, that would not necessarily be the end of the matter. In the ninth edition of Maxwell on Statutes (1946) at p. 318 appears the following passage, which for some reason is omitted from the twelfth edition (1969):

"Provisions sometimes found in statutes enacting imperfectly or for particular cases only that which was already and more widely the law have occasionally furnished ground for the contention that an intention to alter the general law was to be inferred from the partial or limited enactment, resting on the maxim expressio unius est exclusio alterius. But that maxim is inapplicable in such cases. The only inference which a Court can draw from such superfluous provisions (which generally find a place in Acts to meet unfounded objections and idle doubts), is that the Legislature was either ignorant or unmindful of the real state of the law, or that it acted under the influence of excessive caution. If the law be different from what the Legislature supposed it to be, the implication arising from the statute, it has been said, cannot operate as a negation of its existence, and any legislation founded on such a mistake has not the effect of making that law which the Legislature erroneously assumed to be so."

Support, I think, is to be found for that passage in such cases as Mollwo, March & Co. v. The Court of Wards ^[7] where it is said at p. 437: " when the existing law is shown to be different from that which the Legislature supposed it to be, the implication arising from the Statute cannot operate as a negation of its existence"; and Houghton v. Fear Bros. Ltd. and Willsher ^[8] . But the case which provides much clearer assistance, in my view, is the decision of the House of Lords in Inland Revenue Commissioners v. Dowdall, O'Mahoney & Co. Ltd. ^[9] In that case the House of Lords had to construe the English Finance (No. 2) Act, 1939, which imposed an excess profits tax. The taxpayers claimed to deduct certain Irish taxes paid in respect of the income in question. Certain deductions were excluded by the schedule to the English Act in the following words (p. 411):

"In computing the amount of the profits or gains to be charged no sum shall be deducted in respect of-

(a)

any disbursements or expenses, not being money wholly and exclusively laid out or expended for the purposes of the trade, profession, employment or vocation."

Their Lordships did not think that the Irish taxes fell within the exception in those words. But reliance was placed on sections, not only in previous legislation, but in the Act of 1939 itself, which seemed to imply that Dominion and other foreign taxes were deductible. In particular the very schedule to the Act of 1939 itself, the same schedule as that from which I have just quoted, contained the following clauses:

"The provisions of subsection (4) of section 27 of the Finance Act, 1920 [which disallows deductions on account of payment of Dominion income tax], shall not apply;"

and

"No deduction shall be made on account of liability to pay, or payment of, United Kingdom income tax, the national defence contribution, or excess profit tax."

It was argued that these provisions showed that Parliament was contemplating that there could be deductions for some types of Dominion or foreign tax in arriving at the taxable sum.

Lord Reid, however, who delivered the leading opinion, did not assent to this argument: He said at pp. 416-417:

"The appellant's reply must be that, even if Parliament did think in 1939 and 1940 that there was a pre-existing right to make such a deduction under income tax principles, Parliament was wrong in so thinking. There is a difference between Parliament exhibiting an erroneous opinion as to the existing law and enacting that that law shall be changed."

And again at p. 421:

"Paragraph 5 is very misleading but to mislead a taxpayer is not the same thing as to entitle him to relief. It may well be that these paragraphs show that Parliament was under a misapprehension as to the existing law at the time, but it does not necessarily follow that if Parliament had been correctly informed it would have altered the law."

So here I would say that if Parliament thought when it enacted s 82 that the definition of "industrial matter", as it stood in the old legislation and was continued unaltered for relevant purposes in the new, was not wide enough to include the powers referred to in s 82 it was under a misapprehension, and it does not follow that if it had been correctly informed it would have narrowed that definition.

Next, I think that the words "Notwithstanding any other provisions of this Act" may refer to s 79 which reads as follows:

"79.

(1)

The Commission or a Committee may include in any award a provision that the contract of hiring of every person employed in a particular industry shall be a hiring by the hour, day, week or any other period specified in such award.

(2)

The contract of hiring of every person employed in an industry covered by an award but in which no provision has been made under subsection (1) of this section, shall be, in the absence of an express contract for some other specified period, a contract of hiring by the week.

(3)

Except where the contract of hiring is for a period less than by the day, wages shall accrue from day to day."

Parliament may have thought that sub-s (2), providing for a weekly hiring in the absence of any express provision in any award to the contrary, might have stood in the way of varying an award to provide for the minimum term of notice of three months referred to in s 82(b). I think any such fear would be quite groundless, but, as Lord Reid also said in the case just cited at p. 415: "it is not very uncommon to find the legislature inserting superfluous provisions under the influence of what may be excessive caution."

Finally, on the code argument I would ask this question. If s 82 is to be regarded as an exclusive code, what is it an exclusive code about? The assumption in the argument is that it is a code about dismissal for redundancy, but the word redundancy is not to be found in the section. It could, I think, with equal justice be said to be a code about the effect of automation. It covers matters which have nothing to do with the termination of employment. The obligations, duties and responsibilities of the employer upon the proposed introduction of automation referred to in sub-s (a) could include all sorts of things, such as an obligation to train the employees, or a proportion of them, in the use of the new automatic devices. I do not see why it should be assumed that there was any intention in s 82 to exclude the jurisdiction of the Commission to deal with the consequences of redundancy through one of the many other causes referred to in the provision of the application previously cited. The paramountcy of s 82 within its own limits is ensured by the ruling of the Industrial Court. On the whole I do not think those limits should be extended by implication. On this part of the case I would refer to the way in which several of the learned Judges of the High Court treated the argument that certain sections of the Navigation Act excluded the jurisdiction of the Federal industrial tribunals to make awards for compensation for injury from illness or accident in the case of R. v. Hamilton Knight; Ex parte The Commonwealth Steamship Owners Association ^[10] ; see per Dixon C.J. at p. 298, per Webb J. at p. 311, per Kitto J. at p. 330.

Accordingly I think that the application for prohibition fails, but I would not like it to be thought that I have failed to appreciate the great industrial and economic importance of the case or the arguments for distributing the burden of compensation for redundancy more widely over society. All that has nothing to do with the question of jurisdiction. I would, with respect, apply the words of Dixon C.J. in Reg. v. Findlay; Ex parte Commonwealth Steamship Owners' Association ^[11] as follows:

"It is important to hold firmly in mind that the fairness, justice or propriety of a claim has nothing to do with the question whether it is capable of forming a dispute as to an industrial matter, which is the sole question that is before this Court."

In my opinion, the order nisi for prohibition should be discharged.