Blackham v Coal and Allied Operations Pty Limited [1995] IRCA 623

C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - Powers of Local Coal Authority and Coal Industry Tribunal - Whether powers arbitral or judicial - ESTOPPEL - Res judicata - Extension of time Industrial Relations Act 1988 (Cth), ss 170EA (3)(b), 170HA, 170EB Coal Industry Act 1946-1973 (Cth), ss 44, 45, 34(1)(a)(7), 32(2), 36(1)(2), 38, 4 Conciliation and Arbitration Act 1904-1956 (Cth) Coal Industry Act 1946-1951 (NSW) Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 R v Kirby & ors; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 Reg. v Duncan & Ors; Ex parte Iron & Steel Pty Ltd (1983) 5 IR 15 Reg. v Lydon; Ex parte Cessnock Collieries Ltd (1960) 103 CLR 15 Hatchett v Bowater Tutt Pty Ltd (1990) 39 IR 24 Administration of Papua & New Guinea v Daera Guba (1973) 130 CLR 353 Carl Zeiss Stiftung v Rayner & Keeler Ltd (No2) [1967] 1 AC 853 BLACKHAM v COAL AND ALLIED OPERATIONS PTY LIMITED - No. NI 2560 of 1995 Before: Judicial Registrar WALKER Place: Sydney Hearing Date: 20 October 1995 Judgment Date: 29 November 1995

INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N0. NI 2560 of 1995 Between: JOHN BLACKHAM Applicant And: COAL AND ALLIED OPERATIONS PTY LIMITED Respondent Before: Judicial Registrar WALKER Place: Sydney Hearing Date: 20 October 1995 Judgment Date: 29 November 1995 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The respondent's Notice of Motion seeking orders that: 1. The application be dismissed; 2. Alternatively, that the application be stayed indefinitely; and 3. Such other orders as the Court may think appropriate, be dismissed. 2. The applicant's Notice of Motion seeking an extension of time pursuant to Section 170EA (3)(b) of the Act, be granted. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules. INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N0. NI 2560 of 1995 Between: JOHN BLACKHAM Applicant And: COAL AND ALLIED OPERATIONS PTY LIMITED Respondent Before: Judicial Registrar WALKER Place: Sydney Hearing Date: 20 October 1995 Judgment Date: 29 November 1995 REASONS FOR DECISION The applicant, Mr John Blackham filed a claim for unlawful termination in this Court on 20 June 1995. On 3 October 1995, the respondent filed a Notice of Motion seeking orders that: 1. The application be dismissed; 2. Alternatively, that the application be stayed indefinitely; and 3. Such other orders as the Court may think appropriate. The applicant, on 6 October 1995 filed a Notice of Motion seeking an extension of time pursuant to Section 170EA (3)(b) of the Act. The Motions were listed together for hearing today and the respondent's motion was dealt with as the first in time. The Construction, Forestry, Mining and Energy Union (Mining Division) had previously instituted proceedings before the Local Coal Authority on the 20 February 1995 in the following terms: "Please be advised that a dispute exists between United Mine Workers and Coal & Allied Operation at Hunter Valley No 1 Open Cut in regards to the termination of Mr John Blackham. The United Mine Workers seeks the assistance of the Authority to receive by way of conference or if necessary hearing, to resolve this matter. We formally are seeking Mr Blackham's reinstatement." The matter proceeded by way of conference before the Chairman of the Local Coal Authority and as there was no settlement of the dispute, the Chairman proceeded to a formal hearing. On 1 March 1995, the Chairman delivered a decision. He noted that there was no unanimous view of the Authority so his view would be that of the Authority and he refused the application for reinstatement. The union sought leave to have the decision reviewed by the Coal Industry Tribunal and the review was allowed on the following basis: "I grant the application for leave. However in view of my findings that support the conclusion that management was entitled to act, the question remains only whether in all the circumstances Mr Blackham received a fair go all round by being summarily dismissed rather than suffering some lesser penalty." The review was determined on the 24 May 1995 by the Coal Industry Tribunal. The last three paragraphs of that decision are set out hereunder: "These observations apply to the present case. The situation which I must consider is:- (i) Mr Blackham committed two infringements of timekeeping requirements on the one day; (ii) Used coarse and abusive language to a supervisor on the same day; (iii) Had been formally warned of further action if timekeeping infringements were repeated after an incident some 27 months ago; and, (iv) Is not accused of any timekeeping infringements in a period of 27 months. In these circumstances the company was entitled to dismiss Mr Blackham. However, summary dismissal in the circumstances detailed was harsh and unconscionable and a fair result all round would have been dismissal with payment in lieu of notice. I so order. Some argument was directed to the significance of the Local Coal Authority decisions, in particular, their precedent value. While it is true that the authorities are not bound by their own decisions, as indeed the Tribunal is not, there is nevertheless a continuing practice of advocates referring to earlier decisions. This is a perfect proper practice which, as long as the possibility of differing circumstances is recognised, depends for its validity on the utility of consistency." On or about the 5 June 1995, Mr Blackham sought the advice of a solicitor and an application pursuant to Section 170EA was filed in the Industrial Relations Court of Australia on 20 June 1995. The respondent contends that this Court has no jurisdiction to hear the claim for unlawful termination on the basis of Sections 44 and 45 of the Coal Industry Act 1946 as amended. The sections are set out hereunder: "44. An award, order or determination of the Tribunal or a decision of a Local Coal Authority under this Act shall not be challenged, appealed against, quashed or called into question, or be subject to prohibition, mandamus or injunction, in any Court on any account whatever. 45. During the currency of any award or order made by the Tribunal or of a decision of any Local Coal Authority under this Act, no award or order made by the Court or by any Tribunal having jurisdiction in industrial matters in the coal mining industry dealing with the same subject matter and inconsistent with the award or order made by the Tribunal or Local Coal Authority (except an award, order or decision made under this Act or the State Act) shall be effective." In the alternative to this contention the respondent claims, res judicata, estoppel and abuse of process. Counsel for the respondent argued that the powers given to the Coal Industry Tribunal are in fact judicial powers and therefore the Tribunal does not have the same limitations as the Industrial Relations Commission. He based this assertion on the wording of Section 34(1)(a) of the Coal Industry Act which states: "For the purposes of the exercise of the powers referred to in the last preceding sub- section, the Tribunal is, subject to this section, to have (in addition to all other powers conferred on it by this Act or the State Act) all powers which are given by the Conciliation and Arbitration Act 1904-1956 to the Commission or to a member of the Commission in relation to industrial disputes before it under that Act" (emphasis added). On the basis of this sub-section his argument is that at the time of this Act, (ie. pre-Boilermakers case) the Arbitration and Conciliation Commission exercised both arbitral and judicial powers and the Coal Tribunal still retains both these powers, that is, up until these sections were repealed on 1 July this year. It is clear that the exercise of judicial power is inconsistent with the exercise of an arbitral power (Alexander's case), and that an industrial tribunal cannot under the Constitution exercise both judicial and non-judicial functions (Boilermakers case). The question to be answered in this matter is; does the Coal Industry Act 1946 confer on the Coal Tribunal judicial power? The answer to that question must be, no. The power is an arbitral power and is expressed as such in sub-section (7) of section 34: "(7) The power specified in sub-section (1) of this section to consider and determine industrial disputes, in so far as that power is vested in the Tribunal by this Act, is declared to be a power exercisable by way of conciliation and arbitration for the prevention and settlement of those disputes." Further to this section, is section 32 and in particular, sub-section (2) which is set out hereunder: "(2) Subject to the Constitution those powers and functions are by this sub-section, but not otherwise, vested in the authority in relation to which they are specified to the extent to which they are not in excess of the legislative power of the Commonwealth." The reference to the Conciliation and Arbitration Act 1904-1956 in the Coal Industry Act 1946-1973 can only be explained as a drafting oversight in light of the Boilermakers case. In Reg. v Duncan & Ors; Ex parte Iron & Steel Pty Ltd. (1983) 5 IR 15, Mason J, in considering the enforcement of awards and orders of the Coal Tribunal pursuant to section 36 was of the opinion that: "On the other hand, s 36(1) provides that an award or order made by the Tribunal by virtue of the powers and functions vested by s 36(2) has effect as if it were an award of the Commission and is binding on the parties and any other persons on whom it is expressed to be binding so that the provisions of the Conciliation and Arbitration Act 1904 (Cth), as amended, in relation to enforcement, apply to it" (emphasis added). In Reg. v Lydon; Ex parte Cessnock Collieries Ltd (1960) 103 CLR 15 the High Court declared that in fact neither sections 44 of the Coal Industry Act 1946-1951(NSW), or section 38 of the Coal Industry Act (Cth)attempted to confer judicial power but gave power to settle a dispute as to an industrial matter. In Hatchett v Bowater Tutt Pty Ltd (1990) 39 IR 24, von Doussa J considered a motion brought by a respondent seeking to have proceedings by an applicant relating to breach of an award as to termination of employment, dismissed or stayed on the ground that the applicant is estopped by a decision of the Industrial Relations Commission or alternatively that the proceedings were an abuse of process. His Honour considered argument by the respondent that, although the Commission is not a Court in the sense that it exercises judicial powers, it is a Tribunal which in the circumstances of the case had jurisdiction to finally decide between the parties and their privies to the question whether the determination of the applicant's employment was in contravention of the award. Consideration was given to the observations of Gibbs J in Administration of Papua & New Guinea v Daera Guba (1973) 130 CLR 353and Von Dousa J decided that the crucial question arising was whether the Commission had jurisdiction to decide the matter. He decided that the Commission did not have the jurisdiction to ascertain, declare and enforce those rights and dismissed the respondent's motion. The respondent in this Motion attempts to distinguish Hatchett's case on the basis that whereas the Commission in that case did not have the power to determine rights, the Coal Tribunal does. The jurisdiction of the Coal Tribunal is set out in section 34 of the Coal Industry Act 1946 and gives the Tribunal power to consider and determine, "industrial disputes." Industrial disputes are defined under section 4 as: "(a) A dispute (including a threatened, impending or probable dispute) as to industrial matters; and, (b) A situation which is likely to give rise to a dispute as to industrial matters." "Industrial matters" are defined as: "Industrial matters means all matters pertaining to the relations of employers and employees in the coal mining industry and, without limiting the generality of the foregoing, includes, in respect of that industry... (k) The right to dismiss or to refuse to employ, or the duty to reinstate in employment, a particular person or class of persons." These powers of the Tribunal in relation to reinstatement are judicial in nature and any decision with regard to such matters since the Boilermakers case would be ultra vires. The powers of the Coal Tribunal are arbitral powers, the judicial powers of the old Conciliation and Arbitration Commission being vested in the Commonwealth Industrial Court following the decision in the Boilermakers case. In declaring that the Commission lacked jurisdiction in the Hatchett case, von Doussa J commented: "Unfortunately before the Commissioner the consequences of the distinction between the power of an arbitral decision in respect of the future, and the power of judicial determination of existing rights and obligations were not observed. The relief sought by the organisation on behalf of the applicant related wholly to the ascertainment, declaration and enforcement of the applicant's existing legal rights. These were matters which required a judicial determination, an exercise of judicial power which the Commission lacked. A claim for payment of wages, or for wrongful dismissal, or for breach of an award in whatever form the claim of legal right may have been cast, is beyond the jurisdiction of the Commission." It is also of interest to consider the effect of Section 170HA of the Industrial Relations Act, that section provides: "On and after 26 February 1994, when the Termination of Employment Convention takes effect, any award or order of the Commission that is inconsistent with the requirements of that Convention does not have effect to the extent of the inconsistency." The effect of this section is that any award or order of the Coal Tribunal (see section 36 of the Coal Industry Act which provides for enforcement of awards or orders) will be set aside if it is inconsistent with the Convention to the extent of the inconsistency. In other words, the earlier statutory provisions, (ss 44 & 45 of the Coal Industry Act) are repealed by implication. Added to this argument is of course the situation with regard to the Section 170EB of the Industrial Relations Act. Had the applicant commenced his claim in this Court, the Court would have been compelled to refer it to the Coal Tribunal if it was of the opinion that the Tribunal was capable of an adequate alternative remedy, in respect of the termination, under existing machinery that satisfied the requirements of the Termination of Employment Convention. Having had the opportunity to consider the transcript and the findings of the Coal Authority and the Coal Tribunal it is obvious that the Authority and the Tribunal do not provide such an adequate or alternative remedy under their processes. In considering estoppel in Administration of Papua & New Guinea above, the High Court made reference to Carl Zeiss Stiftung v Rayner & Keeler Ltd (No2) [1967] 1 AC 853 and to the statement of Lord Guest where he said among other things: "The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between the parties..." The effect of Section 170HA of the Industrial Relations Act is that it alters any award made that is in contravention to the convention and thereby interferes with the finality of such a decision and of course, as the Coal Authority and the Tribunal could not exercise judicial power they lacked jurisdiction. The question of estoppel, res judicata and abuse of process are therefore not available to the respondent. Having considered the authorities concerning "extension of time," I am satisfied that in the circumstances of this matter that I should exercise my discretion in favour of the applicant.