Industrial Relations Commission of New South Wales in Court Session CITATION : Integral Energy v Allen [2001] NSWIRComm 193 APPELLANT: Intergral Energy Australia PARTIES : RESPONDENT: Jeffrey Nugent Allen FILE NUMBER: IRC 5944 of 2000 CORAM: Wright J President; Walton J Vice-President; Boland J Unfair contract - Interlocutory appeal - Notice of motion seeking declaratory and related relief - Whether Commission in Court Session had jurisdiction to hear claims under s 106 of the Industrial Relations Act 1996 - Generalia specialibus non derogant maxim - Appeal upheld CATCHWORDS : Appeal - Appeal from interlocutory decision - Notice of motion seeking declaratory and related relief - Whether Commission in Court Session had jurisdiction to hear claims under s 106 of the Industrial Relations Act 1996 - Generalia specialibus non derogant maxim - Appeal upheld Energy Services Corporations Act 1995 s10 and Schedule 2 Industrial Relations Act 1996 s106 s154 LEGISLATION CITED : Industrial Relations Commission Rules 1996 Rule 82 Rule 89 State Owned Corporations Act 1989 Schedule 9 Caltex Petroleum Pty Limited v Harmer (1999) 92 IR 264 Jeffrey Nugent Allan v Integral Energy Australia [2000] NSWIRComm 231 CASES CITED : Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Metrocall Inc v Electronic Tracking Systems Pty Limited (No 2) (2000) 102 IR 309 Nagle (t/as W D & J L Nagle & Sons) v Tilburg (1993) 51 IR 8 Saraswati v The Queen (1991) 172 CLR 1 HEARING DATES: 05/02/2001 DATE OF JUDGMENT: 08/30/2001 APPELLANT: Mr J N West QC and Mr I M Neil of counsel SOLICITOR: Mr M Sullivan Harmers Workpace Lawyers LEGAL REPRESENTATIVES: RESPONDENT: Mr B D Hodgkinson of counsel SOLICITOR: Ms L Berton Kemp Strang Lawyers JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President BOLAND J Thursday 30 August, 2001 Matter No IRC 5944 of 2000 INTEGRAL ENERGY AUSTRALIA v JEFFREY NUGENT ALLEN Application for leave to appeal and appeal against a decision of Justice Maidment given on 17 November 2000 in matter No IRC2000/436 JUDGMENT OF THE COURT 1 This is an application for leave to appeal and, if leave is granted, appeal against an interlocutory decision of Maidment J given on 17 November 2000: Jeffrey Nugent Allan v Integral Energy Australia [2000] NSWIRComm 231. 2 The proceedings below were brought by Jeffrey Nugent Allen (the respondent in this appeal) against Integral Energy Australia ("the appellant") pursuant to s 106 of the Industrial Relations Act 1996. Mr Allen had been employed by the appellant (or its predecessor) since 1963 and served as Chief Executive Officer from 24 December 1998 until his removal from office on 24 November 1999. The relief sought in the claim by the respondent, which was brought by way of summons filed on 7 February 2000, was as follows: 1. An order declaring that the Contract of Employment, arrangements, conditions or collateral arrangements under which the Applicant performed work for the Respondent was unfair, harsh or unconscionable and/or contrary to the public interest. 2. An order declaring void in whole - or in part or varying in whole or in part either from its commencement or from some other time the Contract of Employment arrangements, conditions or collateral arrangements between the Applicant and the Respondent under which the Applicant performed work in an industry. 3. Further and in addition an order varying the Contract of Employment between the Applicant and the Respondent ab initio or at some other time prior to its termination by inserting the following terms: (a) "Before termination of the employment for any reason the Respondent shall give to the Applicant two years notice of the proposed termination or payment in lieu of such notice of termination." (b) For the purpose of (a) above payment in lieu of notice shall be calculated by reference to the total value of all benefits that the Applicant would have received during the notice period. (c) The Respondent will not conduct itself in a manner that is likely to damage or destroy the relationship of confidence and trust between the Respondent and the Applicant. (d) The Respondent shall both during the employment and following the termination of employment by them refrain from conduct which undermines or damages or is likely to have the effect of undermining or damaging the personal or professional reputation of the Applicant. 4. Upon termination of the Applicant's employment with the Respondent the Respondent shall pay to the Applicant any bonus payment that to which the Applicant would have been entitled if the employment had not been terminated. 5. An order varying the Contract of Employment by deleting Clause 10.5 thereof and inserting in lieu thereof the following: "Upon termination of the employment Mr Allen shall be paid a maturing/experience allowance in accordance with the relevant terms of the Integral Energy (Conditions of Employment) Award as varied from time to time." 6. Further an order varying the Contract of Employment ab initio by deleting therefrom Clause 17 thereof. 7. Further, in addition, an order that the Respondent pay to the Applicant the following: (a) Two years and one month payment in lieu of notice based on the applicant's total remuneration package at the time of termination of employment ($274,240.00 pa) in the amount of $571,333; (b) An amount of $150,000 as compensation for loss of termination of employment entitlements being sick leave, annual leave and long service leave payable pursuant to Clause 10.6 of the Employment Contract based on the total remuneration package of the Applicant at the time of the termination of his employment; (c) Payment of $363,992 being the maturity allowance pursuant to Clause 10.5 of the Contract of Employment based on the national rate assumed to be the total remuneration package including increase adjustments; (d) Future bonus payments for the years ending 30 June 2000 and 30 June 2001. 8. Further, in addition, an order that the Respondent pay to the Applicant such amount of money in connection with the Contract so avoided or varied as may appear to be just in the circumstances. 9. An order that the Respondent pay to the Applicant interest upon the amount of money ordered to be paid. 10. An order that the Respondent pay to the Applicant his costs of and incidental to these proceedings. 11. Such further or other orders as this Honourable Commission considers appropriate. 3 The appellant is a state owned corporation constituted by the Energy Services Corporations Act 1995. Schedule 2, cl 2(2) of that Act, given effect by s 10 of the Act, provides that the board of the company: may remove a person from office as a chief executive officer, at any time for any or no reason and without notice, but only after consultation with the voting shareholders. 4 By notice of motion filed on 14 July 2000 the appellant sought declaratory and related relief in the following terms: 1. An order under Rule 89(5) of the Industrial Relations Commission Rules 1996 and Part 31 Rule 2 of the Supreme Court Rules 1970 that this application be decided separately from any other question in these proceedings before any trial in the proceedings. 2. A declaration under section 154 of the Industrial Relations Act 1996 and Rule 82(1)(g) of the Industrial Relations Commission Rules 1996 that, upon the proper construction of sub-section 10(2) and sub-clause 2(2) of Schedule 2 to the Energy Services Corporation Act 1995 on the one hand, and section 106 of the Industrial Relations Act 1996 on the other hand, the Commission has no jurisdiction to hear and determine any claims that the applicant has made in these proceedings with respect to the time at which the applicant was removed from office, the reasons for which that was done, and the notice that he might be entitled to receive. 3. An order vacating the directions made in these proceedings on 19 June 2000. 4. An order under section 181 of the Industrial Relations Act that the applicant pay the respondent's costs of and incidental to this application. 5. Such further or other orders as the Commission sees fit. 5 As Maidment J noted in his interlocutory judgment, the ground and reason supporting the notice of motion were as follows: 1. Upon their proper construction, sub-section 10(2) and sub-clause 2(2) of Schedule 2 to the Energy Services Corporations Act 1995 exclude the jurisdiction that the Industrial Relations Commission would otherwise have under section 106 of the Industrial Relations Act 1996 to hear and determine claims with respect to the time at which the applicant was removed from office, the reasons for which that was done, and the notice that he might be entitled to receive. 6 After canvassing the submissions of the parties, Maidment J said: 9 Schedule 2 of the Energy Services Corporation Act 1995 has effect in the present circumstance by force of s.10 of that Act. Sch.2(2)(2) provides as follows: The board may remove a person from office as chief executive officer, at any time, for any or no reason and without notice, but only after consultation with the voting shareholders. 10 M r West accepts that Mr Allen's contract of employment is amenable to a remedy under s.106 of the Industrial Relations Act 1996 should requisite unfairness be demonstrated, however, he contends that the remedy is not at large. 11 The nub of the jurisdictional attack is the proposition that sch.2(2)(2) would conflict with any orders of this Court of the nature of those sought by paragraphs 3(a) & (b), 5 and 7 of the s.106 summons. It is submitted that this Court has no jurisdiction to make an order which would derogate from the power exercised under Schedule 2 of the Energy Services Corporation Act 1995 to remove Mr Allen from office as chief executive officer without notice. 12 An order requiring a payment in lieu of notice, it is said, would be in conflict with that power. Any provision in Mr Allen's contract of employment requiring payment in lieu of notice would, it is argued, be unenforceable as, being inconsistent with the terms of sch.2(2)(2). 13 I do not quarrel with the propositions of law which have been advanced in support of the motion, the issue really turns upon the proper interpretation of the terms of sch.2(2)(2). 14 It seems to me that, in order to succeed on the motion, Integral Energy needs to demonstrate that the words "the board may remove a person from office as chief executive officer . . .without notice" in sch.2(2)(2) manifest a parliamentary intention that the board may not only remove the chief executive officer without notice but may also do so without paying compensation irrespective of any contractual term to the contrary. I am not convinced that the parliamentary intent is thus. 15 I accept that this Court has no authority to fetter the right of the board to remove Mr Allen from office and to do so without notice. However it seems to me that a provision in Mr Allen's contract of employment which was to the effect that he was to receive compensation if he was removed from office without notice would not necessarily fetter the rights of the board to remove him from office without notice. I do not accept that such a provision would derogate from the power to remove him from office without notice. Accordingly, subject to the requirements of s106 otherwise being met, it is my view that this Court is empowered to vary Mr Allen's contract of employment by inserting such a provision. 16 As to the claim for the insertion of a contractual provision requiring the giving of two years notice of termination Mr Hodgkinson argued that Mr Allen's employment was separate from his office and that, although he might be removed from office without notice the same did not necessarily attach to his contract of employment. Prima facie I do not accept this argument, however, on account of the conclusion I reach it is not necessary for me to deal with it. 17 I note that the relief sought by Mr Allen includes payment in lieu of notice as opposed to termination pay or compensatory pay and recognise that the use of the term "payment in lieu of notice" raises the spectre of some requirement to give notice, however, the relief available to him is not confined by the terms of the orders sought. Having reached the view that the contract could, with effect, require the payment of compensation upon removal from office without notice it seems to me that the summons is substantially within jurisdiction. 18 For and upon the above reasons I reach the view that the Notice of Motion must be dismissed, I so order. 19 In the absence of agreement the parties will be heard as to costs. The issue on appeal 7 The application for leave to appeal and appeal identified three questions raised by the appeal, namely: 1) Did his Honour fail to determine the application that the appellant made by its notice of motion of 14 July 2000 (the Appellant's Motion")? 2) Upon the proper construction of sub-section 10(2) and sub-clause 2(2) of Schedule 2 to the Energy Services Corporation Act 1995 on the one hand, and section 106 of the Industrial Relations Act on the other hand, (together, "the Relevant Legislation") does the Commission have jurisdiction to hear and determine any claims that the respondent has made in these proceedings with respect to the time at which the respondent was removed from office, the reasons for which that was done, and the notice or payment in lieu of such notice that he might be entitled to receive ("the Excluded Claims")? 3) Should his Honour have declared pursuant to section 154 of the Industrial Relations Act and Rule 82(1)(g) of the Industrial Relations Commission Rules that, upon the proper construction of the Relevant Legislation, the Commission has no jurisdiction to hear and determine any of the Excluded Claims? 8 The relief sought on appeal was: 1) A declaration that upon the proper construction of the Relevant Legislation, the Commission has no jurisdiction to hear and determine any of the Excluded Claims. 2) An order under section 181 of the Industrial Relations Act that the respondent pay the appellant's costs of and incidental to the appellant's Motion and this application. 9 In bringing the issue on appeal into sharper focus, we note that the appellant's position was that under the relevant provisions of the Energy Services Corporations Act the chief executive officer of the appellant may be dismissed at any time, for any or no reason and without notice, and the only qualification on that power is that dismissal may only be effected after consultation with the voting shareholders. It was put by Mr J N West QC with Mr I M Neil of counsel for the appellant that the Commission in Court Session did not have jurisdiction to hear and determine those claims by the respondent that would have the effect of derogating from the power to dismiss the chief executive officer at any time or for any or no reason and without notice. Those claims included claims by the respondent in his summons for two years' notice of termination of employment or payment in lieu of notice. Mr West submitted that Maidment J should have found that the Commission did not have jurisdiction to hear and determine such claims, that his Honour should have made the declaration sought and that to the extent his Honour was influenced by the view that the Commission could vary the respondent's contract of employment pursuant to s 106 by adding to it a provision requiring the appellant to pay him "compensation" without derogating from the appellant's unfettered right to dismiss, Maidment J erred. 10 Mr B D Hodgkinson of counsel for the respondent, submitted that the statutory power relied on by the appellant was confined by its terms to the removal `from office as Chief Executive Officer', and does not purport to deal with employment or associated contracts or arrangements. 11 Mr Hodgkinson also emphasised that the respondent was required by the appellant to enter into a performance agreement - as permitted by Schedule 9(4) of the State Owned Corporations Act 1989 - which included a provision dealing with termination of employment. It was submitted that if the appellant's submissions were correct, these contractual provisions "do not and did not at any time have any meaning". 12 It was submitted for the respondent that the conclusion by Maidment J that a provision in the (varied) employment contract whereby he was entitled to receive compensation if removed from office would not necessarily fetter the Board's statutory right to dismiss him, was clearly correct. Leave to Appeal 13 In Caltex Petroleum Pty Limited v Harmer (1999) 92 IR 264 the Full Bench (Wright J, President, Walton J, Vice-President and Hungerford J) observed that "[t]he predecessors of this Court and Commission, in line with the approach of the ordinary courts, have generally deprecated and discouraged such interlocutory appeals." Leave will rarely be granted if the interlocutory decision is of a procedural nature: Metrocall Inc v Electronic Tracking Systems Pty Limited (No 2) (2000) 102 IR 309. Moreover, the raising of a jurisdictional issue does not, of itself, establish a basis for the grant of leave: Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381. 14 Notwithstanding the caveats relating to the granting of leave in respect of interlocutory decisions and, without in any way detracting from the force of them, we consider that the particular circumstances of this appeal raise matters of such importance that, in the public interest, leave to appeal should be granted. The Energy Services Corporations Act 1995 applies to ten large state owned corporations and the relationship between that statute and the Industrial Relations Act is a matter of importance. Consideration 15 In opening our consideration of this appeal we note that the parties at first instance and on appeal proceeded on the basis that there was jurisdiction to make the declaration in the terms sought. 16 The principle of statutory construction that is relevant here was stated by Gaudron J in Saraswati v The Queen (1991) 172 CLR 1 at 17-18: It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other. See Butler v. Attorney-General (Vict.) (1961) 106 CLR 268, per Fullagar J. at p 276, and per Windeyer J. at p 290. More particularly, an intention to affect the earlier provision will not be implied if the later is of general application ... and the earlier deals with some matter affecting the individual ... Nor will an intention to affect the earlier provision be implied if the later is otherwise capable of sensible operation. The position was stated by Lord Selborne in Seward v. The "Vera Cruz" (1884) 10 App Cas 59, at p 68, as follows: "where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so". See also Bank Officials' Association (South Australian Branch) v. Savings Bank of South Australia (1923) 32 CLR 276. 17 The "basic rule of construction" referred to by Gaudron J has some similarities to the maxim generalia specialibus non derogant - general provisions do not derogate from special provisions. It is unnecessary, in our view, to canvass this rule and its origins and purpose in any detail because it was not in dispute between the parties that the rule applied to the statutes that are the subject of the present appeal. Indeed, Mr Hodgkinson conceded that subject to the question of costs, if the declaration sought did not include the words "and the notice that he might be entitled to receive", he would not oppose such a declaration. In other words, as we understand Mr Hodgkinson's position, he would not oppose a declaration to the effect that: upon the proper construction of sub-section 10(2) and sub-clause 2(2) of Schedule 2 to the Energy Services Corporations Act 1995 on the one hand, and section 106 of the Industrial Relations Act 1996 on the other hand, the Commission has no jurisdiction to hear and determine any claims that the applicant has made in these proceedings with respect to the time at which the applicant was removed from office and the reasons for which that was done. 18 Mr Hodgkinson's position was that, whilst the provisions of the later general statute (s 106 of the Industrial Relations Act) could not derogate from the power under the earlier special legislation (subs 10(2) and subcl 2(2) of Schedule 2 of the Energy Services Corporations Act) to remove the chief executive officer from office "at any time for any or no reason and without notice, but only after consultation with the voting shareholders", there was no conflict between the two statutes in relation to the contract of employment applying to the chief executive officer. In other words, whilst s 106 could not derogate from the power to remove a person from the "office" of chief executive officer this was not to say that s 106 had no work to do in respect of any unfairness relating to the termination of the contract of employment of the chief executive officer; the "office" of chief executive officer was one thing and his contract of employment was another. 19 There is no dispute that the respondent had been appointed to the position of chief executive officer from 24 December 1998 and that he continued to hold that office until his removal on 24 November 1999. It is also not in dispute that there was in existence a written agreement between the appellant and the respondent that contained the terms and conditions of the respondent's employment. The agreement contained the following relevant terms: 1. Appointment: The employer appoints the employee as its Chief Executive Officer and the employee accepts that appointment. 2. Term: 2.1 Term of Appointment : Subject to the rights of earlier termination set out in clause 10 of this agreement, the employee's employment begins on 24 December 1998 and continues until 24 December 2001. … 3. Duties of Employee: 3.1 General Duties The employee must: 3.1.1 devote the whole of the employee's time, attention and skill during normal business hours, and at other times as reasonably necessary, to the duties of office. 3.1.2 faithfully and diligently perform the duties and exercise the powers: · Consistent with the position of Chief Executive Officer and · Assigned to the employee by the Board or its delegate; and · Specified in Schedule 1 of this agreement; 3.1.3 promote the interests of the employer. … 10. Termination: 10.1 Termination during term of employment 10.1.1 Subject to subclauses 10.1.2, 10.1.3, and 10.1.4 the employee's employment may be terminated at any time and for any reason by the employer upon giving three months' notice in writing, or by the employee giving one month's notice in writing. 10.1.2 Notwithstanding subclause 10.1.1 the employer may terminate the employee's employment without notice or payment in lieu of notice if the employee: · Commits any act of dishonesty, fraud, wilful disobedience, misconduct or serious or persistent breach of the terms of this agreement; · Commits any act of bankruptcy or compounds with creditors; or · Is of unsound mind or becomes liable to be dealt with under any law relating to mental health. 10.1.3 Notwithstanding subclause 10.1.1 the employer may terminate the employee's employment on the ground of redundancy upon giving 6 week's notice in writing. 10.1.4 The employer may at its absolute discretion terminate employment by making a payment in lieu of the notice periods set out in subclauses 10.1.1, 10.1.3 and 10.2. Any payments due upon termination under 10.6 will only be made up to the date which is the start of the notice period. 20 The contract of employment between the appellant and respondent appears to have been made pursuant to a power granted to the board of the appellant under s 10 and cl 2(3A) of Schedule 2 of the Energy Services Corporations Act. Clause 2(3A) of Schedule 2 provides that: The board may, after consultation with the voting shareholders, fix the conditions of employment of the chief executive officer in so far as they are not fixed by or under any other Act or law. 21 The letter terminating the contract of employment and removing the respondent from the office of chief executive officer was dated 24 November 1999 and signed by Mr Bill Hilzinger, Chairman. The letter to the respondent relevantly stated: Please be advised that the Board of Integral Energy Australia has determined that you have committed a serious breach of the terms of your contract of employment. Accordingly, it has resolved that your appointment to the Office of Chief Executive Officer of, and your employment with, Integral Energy Australia be terminated in accordance with powers under Clause 2(2) of Schedule 2 of the Energy Services Corporations Act and clause 10.1.2 of your contract of employment. Please be advised that in accordance with authority vested in me by the Board I confirm that this termination is effective immediately. 22 It seems to us that the respondent was employed in the office of chief executive of the appellant and in no other, or no additional, capacity. The terms and conditions of his employment as a holder of that office were spelt out in the contract of employment to which we have already referred. Further, the board's power in cl 2(3A) of Schedule 2, to fix the chief executive's conditions of employment, in this case by agreement with the respondent, must in our view, be read as being subject to the power in cl 2(2) to remove the chief executive from office "at any time for any or no reason and without notice, but only after consultation with the voting shareholders". We consider that this is so for three reasons. Firstly, we consider that the word "may" in cl 2(2) of Schedule 2 is used in the sense of conferring a wide authority and discretion on the board to remove the chief executive in the manner provided for in the subclause. It is not therefore open to the board to exercise its power to make a contract of employment under cl 2(3A) on terms that rendered cl 2(2) nugatory or limited its operation. We do not regard such an outcome as being consistent with parliament's intention. Secondly, the generalia specialibus principle applies to the interpretation of provisions within the same statute. Clause 2(2) of Schedule 2 makes special provision relating to the removal of the chief executive officer. Clause 2(3A) is a general provision giving the board power to fix the employment conditions of the chief executive. In our opinion, cl 2(2) is not derogated from by cl 2(3A). Thirdly, if it were the case that cl 2(2) and cl 2(3A) stood alone and that cl 2(3A) was not subject to cl 2(2), the absurd situation could arise where the chief executive was removed from office but the contract of employment relating to the holder of that office, and the rights and obligations arising from it, remained on foot. Again, we do not consider such an outcome was parliament's intention. 23 It follows from what we have said that where a chief executive officer is removed in accordance with the provisions of s 10(2) and cl 2(2) of Schedule 2 of the Energy Services Corporations Act, any contract of employment applying to the holder of the office of chief executive is thereupon brought to an end. 24 It also follows from what we have said that in applying the generalia specialibus principle, no power lies with the Commission in Court Session to make orders under s 106 of the Industrial Relations Act requiring the appellant to provide notice of termination to the respondent in circumstances where he has been removed from office pursuant to s 2(2) of Schedule 2 of the Energy Services Corporations Act. To do so would be inconsistent with the statutory power of the appellant's board to remove the respondent "at any time for any or no reason and without notice, but only after consultation with the voting shareholders". 25 On this basis, it seems to us that Maidment J erred and that the declaration sought by the appellant should have been made. Indeed, that is what the appellant contends on appeal. Mr Hodgkinson, submitted, however, that his Honour identified as the "nub" of the appellant's jurisdictional attack that the Commission in Court Session had no jurisdiction to make an order under s 106 requiring payment in lieu of notice because it derogated from the appellant's power to remove the respondent without notice. Mr Hodgkinson submitted that Maidment J was not convinced this was the case and, therefore, declined to make a declaration that might be construed as his Honour agreeing to such a proposition. This left the issue, Mr Hodgkinson submitted, to be dealt with, as it properly should, at the trial once all of the relevant facts were before the trial judge and consistent with the decision in Nagle (t/as W D & J L Nagle & Sons) v Tilburg (1993) 51 IR 8. 26 The approach taken by Maidment J was that it seemed to his Honour that if the Court were to make an order varying the respondent's contract of employment to provide for compensation on the ground that the respondent was removed from office without notice, this would not derogate from the board's power to remove him from office without notice. Accordingly, Maidment J decided that the summons was substantially within jurisdiction and he refused to make the declaration sought. With respect, this was not the issue before his Honour. The application before him was not an application to set aside the summons for want of jurisdiction but rather an application for a declaration as to the limits of the Court's jurisdiction to deal with the claims in the summons. 27 We think that the correct approach to have been taken at first instance was for Maidment J to have made the declaration sought by the appellant. If, in making the declaration, his Honour had any concern about whether this might be taken as reflecting a view on his part that the Court had no power to make orders varying the respondent's contract of employment to provide for compensation, by payment in lieu of notice or otherwise, in circumstances where the respondent was removed from office without notice, it was open to his Honour to make it clear that he was not in any way making such a determination. In any event, there does not appear to us to have been a proper and sufficient basis for his Honour to arrive at such a conclusion and, indeed, he was not asked to do so. Furthermore, the matter was not sufficiently argued before us on appeal to permit any determination about whether, for example, "notice" as that term is used in cl 2(2) of Schedule 2, includes payment in lieu and, therefore, whether the Court is precluded from varying the respondent's contract to provide for compensation in the form of a payment in lieu of notice. 28 It might be contended that in the circumstances of this case a declaration that does not determine whether the Court has power to vary the respondent's contract of employment to provide for compensation on being removed from office without notice is of questionable utility. We disagree. The appellant's notice of motion at first instance was narrow in the compass of what it sought, namely a declaration that the Commission in Court Session did not have power to hear and determine any claims made by the respondent with respect to the time at which the respondent was removed from office, the reasons for which that was done and the notice that he might be entitled to receive. We have determined that such a declaration should be made. As earlier observed, whether the reference to "notice" in cl 2(2) of Schedule 2 of the Energy Services Corporations Act means that the Court is precluded from ordering compensation to the respondent for being removed without notice was not sufficiently addressed by the parties as an issue in the proceedings and we do not find ourselves in a position to make a determination about it. Importantly, however, the declaration makes clear that the Court has no power to make orders under s 106 varying the respondent's contract to provide for notice of termination. Moreover, the making of the declaration may well, in the specific circumstances of these proceedings, have a beneficial effect on the prospects of the matter being resolved in the conciliation process required by the legislation. 29 There is one further matter in relation to the scope of the declaration upon which we wish to comment briefly. We observe that the power of the appellant's board under cl 2(2) of Schedule 2 of the Energy Services Corporations Act to remove the respondent from the office of chief executive includes the power to do so for "any or no reason". There was no debate at first instance or on appeal about the effect of these words on the Court's power to make orders under s 106 of the Industrial Relations Act. Accordingly, we make no comment on their significance or otherwise in this context. This issue and the issue of compensation are matters for the trial judge to determine if the circumstances of the case require it and the matter proceeds to trial notwithstanding the mandatory obligation for conciliation required by s 109 of the Industrial Relations Act. 30 For the reasons we have stated, we find that Maidment J erred. Costs 31 We consider that in the particular circumstances of these proceedings, having regard to the concession made by counsel for the respondent, the stage the proceedings have reached and the potential for settlement in the processes required by s 109 of the Industrial Relations Act particularly in light of the orders now made, the appropriate order as to costs is that costs of the proceedings before Maidment J and on appeal shall, if necessary, be dealt with by the trial judge. Orders 32 We make the following orders: 1. Leave to appeal is granted. 2. The appeal is upheld and the interlocutory judgment and order of Maidment J made on 17 November 2000 are set aside. 3. The Court declares that upon the proper construction of s 10(2) and cl 2(2) of Schedule 2 to the Energy Services Corporation Act 1995 on the one hand, and s 106 of the Industrial Relations Act 1996 on the other hand, the Commission has no jurisdiction to hear and determine any claims that the respondent has made in proceedings numbered IRC 436 of 2000 with respect to the time at which the respondent was removed from office, the reasons for which that was done, and the notice that he might be entitled to receive. 4. The costs of the appeal and of the proceedings before Maidment J shall be dealt with by the trial judge. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.