Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v Chubb Protective Services [2002] QIRC 3 (2002) 169 QGIG 103

25 January, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 103 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 276 – application to amend or void contract Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees AND Chubb Protective Services (No. B1861 of 2001) COMMISSIONER BLADES 8 January 2002 Unfair contract – s. 276 Industrial Relations Act 1999 – Performance of work in Nauru – Jurisdiction of Commission – Extra-territorial jurisdiction of Commission – Contracts made in Queensland between resident of Queensland and person employed in Queensland and Australian Company – Company having an office in Queensland – Temporary deployment to Nauru – Held that s. 276 deals with contracts, not performance – Held there was a real and significant connection with Queensland – Held jurisdiction exists. DECISION The Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch Union of Employees (the Union) has applied for an order under s. 276 of the Industrial Relations Act 1999 (the Act) that the contract or arrangement between the respondent Chubb Protective Services (Chubb) and Union members Dennis Sullivan and Maria Hiemstra, in so far as the said contract or arrangement related to their employment and or engagement as security guards to work in Nauru, be amended as to treat the work done pursuant to that contract or arrangement in Nauru as though it were subject to the application of the Chubb Protective Services Certified Agreement (Qld) 2000. An amended application also seeks orders that under s. 276(5) of the Act, the respondent pay Dennis Sullivan the sum of $5,327.70 and Maria Hiemstra the sum of $5,275.92. In its response to the application, the respondent denies that the Commission has jurisdiction, alleging that the contracts subject to the application for orders do not have a nexus or connection or a sufficient nexus or connection with the State of Queensland and this hearing has been held to resolve that preliminary issue. The evidence reveals that the two employees departed from Australia for Nauru on Thursday 4 October, 2001 and returned to Australia on 9 October, 2001. Written contracts were prepared but not signed by the employees because of a hurried departure and an early return. It would appear to be undisputed that:– • Prior to departure for Nauru, Mr Sullivan was employed as a part-time guard with Chubb and although Ms Hiemstra was engaged as a new employee to carry out work in Nauru, she had previously been recruited for employment on CHOGM and when that conference was cancelled, she was offered the tour of duty in Nauru. • The contracts for the employment in Nauru were made in Brisbane. • The work undertaken by the employees under the Nauru contracts was to be exclusively performed in Nauru. -- 1 of 3 -- 104 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 25 January, 2002 • Employees were informed that acceptance of work in Nauru was separate to any work performed by them in Australia but that upon return to Australia, they would revert to their previous terms of employment. • In relation to Mr Sullivan, the contract for the work in Nauru was part and parcel of ongoing arrangements and continuing employment in Brisbane. Ms Hiemstra was offered further work with Chubb upon her return from Nauru and, from the terms of a proposed written contract, Annexure A to Mr Judson’s affidavit, it would appear that continuing employment in Brisbane after the tour of duty was to be expected. • The only payments of wages covering the period of the tour of duty seem to have been made in Brisbane and an amount for taxation payable to the Australian Taxation Office deducted. • Chubb is the largest security and fire protection business in Australia, operating in every State and Territory. It has an office in Queensland. • Chubb was to pay for the cost of travel to and from Nauru and to also pay for accommodation and meals. The question is whether, in these circumstances, the provisions of s. 276 of the Act have application to these contracts. Other than for s. 694, which has application to employees working in and outside the State, the Act makes no particular reference to extra-territorial jurisdiction. Section 694 has no application because the word “State” does not include Nauru which is an independent republic. However, s. 2(1) of the Australia Act 1986 (Cwlth) provides that “It is hereby declared and enacted that the legislative powers of the Parliament of each State include full power to make laws for the peace, order and good government of that State that have extra-territorial operation.”. The factual circumstances that exist appear to be substantially similar to those in Parker v Tranfield (2001) WASC 233 (7 August 2001), a decision of the Western Australian Industrial Appeal Court. Mr Tranfield was engaged to work overseas and entered into a written contract of employment in Western Australia. At the time he resided in Western Australia. The employer’s head office was in Western Australia. The employment was carried out in Singapore and France and there were no duties carried out in Western Australia although he continued to reside there. His wages were paid in Western Australia and he was paid to travel overseas to work. He was paid accommodation allowance. When the project was completed, he was to be repatriated to Western Australia. The claim was for unfair dismissal. The letter of dismissal was received by him at his home in Western Australia. Kennedy J who agreed with the reasons of McKechnie J and Hasluck J stated that it was abundantly clear that the proper law of the contract of service was the law of Western Australia, and that there was a very real and substantial connection with Western Australia, which was more than sufficient to confer jurisdiction on the Commission. McKechnie J held that a real, even though a remote, or general connection with Western Australia was sufficient to invoke the jurisdiction. At para 34 his Honour said:– “The employer’s business was in Western Australia. The contract of employment was made in Western Australia. Payment of the employee’s salary was made in Western Australia. Repatriation on completion of the project was made to Western Australia. The fact that the employee was required to work entirely overseas for a Western Australian business does not prevent the conclusion that there was a real connection with Western Australia.”. Hasluck J also said that the location of the physical activities undertaken by the employee should not be regarded as the decisive factor. “One must take account of the administrative and financial functions being performed by the employer”. He held that there were various features of the relationship between the parties which pointed to a real and substantial connection with the State of Western Australia. Both parties in this case relied upon the judgment in Bell & Anor v Macquarie Bank Limited & Anor (No 4) (1999) 93 IR 191, a decision of the Industrial Relations Commission of New South Wales in Court Session. In particular, the respondent Chubb submitted that what Bell required was that the applicant must demonstrate a good arguable case as to the existence of a jurisdictional nexus to the State before leave would be granted for a case to proceed. The case dealt mainly with the question whether service of a summons on a foreign company was effective within the meaning of the Rules and whether the appellants should have been granted leave to proceed against the foreign company. These matters do not arise in this case because Chubb was not a foreign company and service outside of the jurisdiction was not necessary because at all times Chubb was present within the jurisdiction. Leave to proceed is not necessary. Either there is jurisdiction or there is not. However, what the Full Bench did say of significant relevance to this case was that the jurisdiction under s. 106 of the NSW Industrial Relations Act 1996 depends upon the existence of a relevant contract or arrangement rather than upon the performance of work itself. In this respect, the Full Bench applied Ex parte Richardson; Re Hildred (1972) 2 NSWLR 423 which in turn involved an application under s. 88F of the Industrial Arbitration Act 1940. (Both section 106 and 88F deal with unfair contracts). It was stated that the place where work was performed under the contract or arrangement is one factor, albeit not a decisive factor. Other factors indicating a relevant connection would include that the contract was negotiated or made in the State by residents of the State or that the contract involved the performance of work overseas in furtherance of a New South Wales industry. While it was emphasised that what needed to be shown was a contract or arrangement under which work was performed in an industry in and of New South Wales, the provisions of s. 276 of the Act and s. 106 of the NSW Act (and also s. 88F) differ in this regard with the added restriction relating to “work performed in an industry in and of NSW” being absent from the Queensland provision. I do not see anything that has fallen in Bell to be in any way at odds with what has been said in Parker. Ex parte Richardson; Re Hildred and Others (supra) was an application to declare void a contract made in New South Wales between residents of New South Wales. Section 88F provided that the New South Wales Industrial Commission could make an order or award declaring void, in whole or in part, and either ab initio or from some other time, any contract whereby a person performs work in any industry, on the grounds that the contract fell within one or more of the matters set out in the various paragraphs of the section. Kerr C.J. said at 427:– “The section does not seek to regulate or deal with work performed under contracts, but with the contracts themselves. It creates a jurisdiction to declare certain types of contract void in whole or in part. The contracts it touches are not all contracts wherever made or between any persons whatsoever. The contracts it touches must be New South Wales contracts in the sense that the New South Wales legislation is not to be taken as intending to apply to contracts to which under the accepted rules of international law it should not be made to apply. If persons who are residents in New South Wales make contracts in New South Wales intended to be governed by the law of New South Wales, as is the position in the present case, then the legislature can create a jurisdiction to avoid such contracts, and this may be so even if they are intended to be performed in whole or in part outside New South Wales ....”. At p. 433 Asprey J.A. said:– “What attracts the jurisdiction of the Commission to grant, and confers upon an applicant a right to obtain, relief under s. 88F of the Act is a contract or arrangement whereby a person performs work in the theatrical industry in or of New South Wales.”. -- 2 of 3 -- 25 January, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 105 The work performed in that case was partly in New South Wales and partly in the Far East. The Court held that the Industrial Commission of New South Wales had jurisdiction to entertain the application. As previously adverted to, s. 276 of the Act is not as narrow as the New South Wales provision in s. 88F as it does not require that the contract to be avoided be a “contract whereby a person performs work in an industry”. It is the contract which is sought to be avoided and that contract was made in Queensland between residents of Queensland, or at least Ms Hiemstra was a resident of Queensland. (Mr Sullivan was a resident of Tweed Heads but worked in Queensland). It was not the employment in Nauru which is determinant. The contract itself is the jurisdictional lynchpin. Conversely, in Roberts v Vox Retail Group Limited (Chandlers) Tweed City (1998) 158 QGIG 476, a case dealing with an unfair dismissal in New South Wales, I held that it was the dismissal which attracted the jurisdiction, not the contract (which had been made in Queensland) and not the domicile of the parties (which was in Queensland). Similar issues were also considered in the case of Mynott v Barnard (1939) 62 C.L.R. 68 which dealt with the question whether the Victorian Workers Compensation Act 1928 covered an injury sustained by an employee in New South Wales. The contract was made in Victoria, the employer and the worker were both domiciled and resident in Victoria. It was held that the Victorian Act did not apply. It was not the contract of employment but the injury which was the subject of the Legislation, and that occurred in New South Wales. Latham C.J. said at 86:– “The territorial application of an Act must, in the absence of any express relevant provision, be determined by reference to the general subject matter and the character of the Act. The statute in question is a workers’ compensation Act. It is dealing with the subject of compensation to workmen who suffer as the result of certain accidents. ... The Act does not concern itself with the terms of any contract of employment.”. This position should be contrasted with s. 276. The subject of s. 276 is the contract itself and not the service rendered pursuant to that contract. It is to be noted that the parties did not make any agreement that the law of Nauru was to be the governing law of the contract but even so in this regard, both Mynott and Maloney v Hoffman (1980) A.R. 318 are authority that the proper law of the contract is irrelevant to the question of jurisdiction because the section operates independently of the will of the parties. In summary, the facts show that the contracts were made in Queensland between a resident of Queensland and an employee working in Queensland on the one hand and a company operating in Queensland on the other. The workers were temporarily deployed out of Queensland and in Nauru. Wages were paid in Queensland and taxation payable to the Australian Taxation Office was deducted from wages. The cases establish that there must be a real, perhaps not even a significant connection with the State before the provisions of an Act can have extra-territorial operation yet here, there was a real and a significant connection with Queensland. For these reasons, I am of the view that the Queensland Industrial Relations Commission has jurisdiction, even though the work to be performed was to be performed entirely within Nauru. Reference has also been made by Chubb to the case of Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 and to principles relating to the dismissal or stay, on inappropriate forum grounds (forum non conveniens), of proceedings which have been regularly instituted within jurisdiction. Deane J referred to the discretionary power that existed. He said:– “The power should only be exercised in a clear case and the onus lies upon the defendant to satisfy the local court in which the particular proceedings have been instituted that it is so inappropriate a forum for their determination that their continuation would be oppressive and vexatious to him.”. Nothing has been shown by Chubb which would indicate that proceedings against Chubb in this jurisdiction rather than in Nauru would be oppressive or vexatious. Both parties are present within this jurisdiction. The applicant certainly is not in Nauru and there is no reason to believe that Chubb has an office in Nauru. It has not been shown that relief is even available to the plaintiff in Nauru. In my view it would be oppressive and vexatious on forum grounds to leave the parties to proceed in Nauru where there would be great inconvenience and expense to both. The application to dismiss on jurisdictional grounds is dismissed. I order accordingly. B.J. BLADES, Commissioner. Released: 08 January 2002 Appearances:– Mr J. Nolan, Counsel, with him Ms S. Bellino and Mr K. Crank for the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees. Mr N. Chadwick, instructed by Fisher Cartwright Berriman, for Chubb Protective Services. -- 3 of 3 --