Allied Express Transport Pty Ltd v Humphrey [2002] ICQ 12 (2002) 169 QGIG 569

569 Vol. 169 FRIDAY, 19 APRIL, 2002 No. 18 INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(1) – appeal against decision of industrial commission Allied Express Transport Pty Ltd AND Bruce Humphrey (No. C4 of 2002) PRESIDENT HALL 8 April 2002 DECISION This is an appeal against a decision of the Queensland Industrial Relations Commission released on 11 January 2002 (reported 169 QGIG 98). The Commission found that the appellant engaged in prohibited conduct contrary to s. 105(2)(b) of the Industrial Relations Act 1999 in that the appellant dismissed the respondent because the respondent was dissatisfied with his industrial conditions. Subject to submissions which were made about paragraphs [30] and [31] of the Commission’s decision and to which I shall return, it is necessary to consider only two of the arguments advanced on the appeal, viz:– (1) Section 105(2)(b) does not prohibit dismissal of an employee because the employee is dissatisfied with his industrial conditions; and (2) In the alternative s. 105(2)(b) prohibits dismissal of an employee because the employee is dissatisfied with his conditions only when the dismissal and the dissatisfaction are contemporaneous. To understand the first submission, it is necessary to refer to the structure of Chapter 4 Freedom of Association of the Industrial Relations Act 1999. The prohibitions of Chapter 4 are contained in Part 2. Materially s. 105(1) and (2)(b) provide:– “Prohibited conduct for employers and principals 105.(1) This section applies to a person who is, or proposes to become, an employer or who has engaged, or proposes to engage, someone else as an employee or independent contractor. (2) The person must not, for a prohibited reason, engage in the following conduct– . . . (b) terminate a person’s contract of employment or contract for services;”. The concept of “engaging in” conduct for a “prohibited reason” is developed at s. 104 in Part I. It is useful to reproduce the whole of s. 104 which provides:– “104.(1) For this chapter, a person engages in conduct for a ‘prohibited reason’ if the person engages in, or threatens to engage in, the conduct because another person– (a) is, has been, proposes to cease being or become, or has proposed to cease being or become a member or representative of an industrial association; or (b) is not, or does not propose to become, a member or representative of an industrial association; or -- 1 of 5 -- 570 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 19 April, 2002 (c) has not paid, or does propose to not pay, a fee, however called, to an industrial association; or (d) is, has been, proposes to cease being or become, or has proposed to cease being or become an exempted person; or (e) has not or does not propose to join in industrial action; or (f) has not agreed or consented to, or voted for, the making of an agreement to which an industrial association of which the person is a member, would be a party; or (g) has participated in, proposes to participate in or has proposed to participate in, a secret ballot ordered by an industrial body under an industrial law; or (h) has the right to the benefit of an industrial instrument or an order of an industrial body; or (i) has made or proposes to make an inquiry or complaint to a person or body having the capacity under an industrial law to seek– (i) compliance with that law; or (ii) the observance of a person’s rights under an industrial instrument; or (j) has given evidence or taken part in (‘participate’) or proposes to participate in, or has proposed to participate in proceedings under an industrial law; or (k) is a member of an industrial association that is seeking better industrial conditions; or (l) is dissatisfied with the person’s industrial conditions; or (m) has absented himself or herself from work as an employee or independent contractor without leave and– (i) the absence was to carry out a duty or exercise a right and an officer of an industrial association; and (ii) the person applied for leave before absenting himself or herself and leave was unreasonably refused or withheld; or (n) as an officer or member of an industrial association has done, or proposes to do, an act or thing that is lawful and authorised by the association’s rules to further or protect the industrial interests of the association or its members; or (o) is a health and safety representative appointed under the Workplace Health and Safety Act 1995. (2) A person ‘engages in’ conduct for a prohibited reason if the conduct is engaged in for a reason that includes a prohibited reason. (3) In this section, a reference to a person engaging in conduct includes a reference to the person being, directly or indirectly, a party to or concerned in the conduct.”. Part 4 creates remedies available to those against whom prohibited conduct has been carried out. It is sufficient to record that by a decision released 1 March 2002 (reported 169 QGIG 224) the Commission has now dealt with the matter of remedy, and to record that the respondent has undertaken to this Court to take no step to implement the decision prior to the disposition of the appeal. It remains to mention that s. 101 provides– “101. The main purposes of this chapter are to ensure– (a) a person who is eligible to become a member of an industrial association may become or remain a member of the association without fear of discrimination; and (b) a person who does not wish to become or remain a member of an industrial association may refrain from doing so without fear of discrimination.”. In the result s. 101 is of no little importance. In support of its first contention the appellant refers to– (a) the statutory history of the provision; and (b) parliamentary and pre parliamentary materials relating to what is now s. 104(1) and s. 105(2)(b). The appellant is entitled to go to the history of the provision and to the extrinsic materials. In the interpretation of an Act “the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation”, Acts Interpretation Act 1954 s. 14A(1). It is not legitimate to commence by characterising the grammatical or literal meaning of a statutory provision as the provision’s “ordinary meaning”, and to then turn to history, extrinsic materials and internal indications of the purpose of the provision to ascertain if there is a basis for departing from that “ordinary meaning”. The correct proposition is that the “ordinary meaning” conveyed by a provision is the meaning conveyed by the provision after taking into account the purpose or underlying object of the Act (or chapter thereof) within which the provision is contained, the legislative history of the provision and any extrinsic materials to which regard may legitimately be had. The legislative history is commonly supposed to have commenced with the decision of the High Court in Pearce v WD Peacock and Co Ltd (1917) 23 CLR 199. The decision was about s. 9 of the Conciliation and Arbitration Act 1904 (C’wth) in its original form. In Pearce v WD Peacock and Co Ltd (1917) 23 CLR 199 a registered industrial organisation of employees had served a number of employers, including WD Peacock and Co Ltd, with a log of claims seeking better industrial conditions for its members. WD Peacock and Co Ltd requested its employees to sign papers indicating satisfaction with their existing conditions. Such papers would have enabled WD Peacock and Co Ltd to shelter behind the decision of the High Court in R v Commonwealth of Conciliation and Arbitration: ex parte William Holyman and Sons Limited (1914) 18 CLR 273 that an award could not be made against an employer respondent to a log of claims when his employees, being members of the serving union, were satisfied with their existing conditions. An employee who refused to sign was dismissed. On a prosecution alleging dismissal of the employee by reason of the circumstance that he was a member of the union, the Industrial Magistrate found that WD Peacock and Co Limited was actuated, not by the reason charged, but by the employee’s dissatisfaction with his conditions. The High Court by a majority, and in the face of forceful dissenting judgements, upheld the decision. Shortly thereafter, by Act number 31 of 1920, the Conciliation Arbitration Act 1904 (C’wth) was amended to prohibit infliction of harm by an employer upon an employee “by reason of the circumstance that the employee being a member of a organisation which is seeking better industrial conditions, is dissatisfied with his conditions.”. -- 2 of 5 -- 19 April, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 571 The decision in R v Commonwealth Court of Conciliation and Arbitration: ex parte William Holyman and Sons Limited (1914) 18 CLR 273 has long since been overruled. It is now settled that Commonwealth legislation may go so far as to provide that an employer may be made a respondent to an award even though he does not employ any member of the union serving the log of claims, and may also provide that the employer may be bound qua those employees not-withstanding the satisfaction of those employees with their existing conditions of employment, see Re Dunlop Rubber Australia Limited: ex parte Federated Miscellaneous Workers Union of Australia (1957) 97 CLR 71 at 80 to 85, Re Australian Conciliation and Arbitration Commission of Australia and Austrlaian Insurance Employees Union: ex parte Minister for Justice and Attorney General (QLD) and Workers Compensation Board (QLD) (1982) 56 ALJR 51. The provision barring infliction of harm by reason of the circumstance that an employee, being a member of an organisation which is seeking better industrial conditions is dissatisfied with his conditions, lingered on. The mischief (presumably) was the prospect of an employer defending a prosecution for victimisation of a unionist on the ground that the substantial and operative reason for the dismissal, and ultimately it was established that the reason pleaded against the employer had to be a substantial and operative reason rather than a reason (see General Motors Holdens Pty Ltd v Bowling (1977) 55 ALJR 235), was the employee’s dissatisfaction with his industrial conditions rather than his membership of an industrial organisation registered under the Act. That mischief (presumably) was the mischief aimed at when the Commonwealth innovation of 1920 was adopted by the Industrial Conciliation Arbitration Act 1961 (s. 101,) and when the provision was carried into the Industrial Relations Act 1990. The structure and purpose of the Workplace Relations Act 1996 (C’wth) and the now repealed Industrial Organisations Act 1997 is and was radically different to earlier legislation. Both statutes, like the provisions of the current Act (set out above), separate the prohibition of conduct from the definition of the reasons for conduct which caused the conduct to attract sanction. Both statutes also continued the tradition of restricting the prohibition on dismissal for dissatisfaction to dismissal of a dissatisfied member of an industrial organisation of employees which is seeking better industrial conditions, see Workplace Relations Act 1996 (C’wth) ss. 298 K and 298L and Industrial Organisations Act 1997 ss. 237 and 238. It was not until the Industrial Relations Act 1999 that the nexus was broken. It is against that history that it is contended by the appellant that “or” where it appears between paragraph (k) and paragraph (l) of s. 104(1) should be read as “and”. That “or” may be read conjunctively is, of course, well established: see Reg v Oakes [1959] 2 QB 350 at 356 and Barker v Barker and Wade (1976) 13 ALR 123 at 133 per Crawford J. But such an interpretation “is not used unless one is obliged to do so”, Ormerod v Blaslov (1989) 52 SASR 263 at 269 per O’Loughlin J. Here, in searching for that obligation, the appellant goes to the Industrial Relations Task Force Report of December 1998. The report simply referred to the then freedom of association provisions as being unduly complex and supported their simplification. By his second reading speech the then Minister of Employment Trading and Industrial Relations (25 May 1999 at P 1837 of Hanshard) observed that: “The freedom of association provisions, permitting persons to join or not join Industrial Organisations of their own choice, or continue in the legislation in a simplified form.”. The submission is that there is not the least indication that the Act of 1999 was to initiate the radical break with the past involved in reading “or” disjunctively and giving 104(1) its literal or grammatical reading. It is unnecessary to deal with the respondent’s submission that s. 14(B) the Acts Interpretation Act 1954 limits the use which may be made of parliamentary and extra parliamentary materials in the interpretation of Queensland statutes. It is sufficient to observe that this is a case where the legislative provision is grammatically capable of only one meaning, upon which meaning neither the context nor the purpose of the Act nor the history of the Act casts any doubt. The legislative history and the extrinsic materials do no more than demonstrate a lack of explanation for a significant change. In such a case the literal and grammatical meaning is the “ordinary meaning”. Mere novelty is no justification for departure from that meaning. It must also be added that the evident purpose of Chapter 4 of the Industrial Relations Act 1999 is to protect non-unionists equally with unionists. It conflicts with that object to deny “or” its pristine disjunctive sense and read it as “and”. If “or” is read as “and” it is a contravention of s. 105(2)(b) to dismiss an employee because the employee is dissatisfied with his industrial conditions only if the employee is a unionist. Section 105(2)(b) is an unusual provision. It does not render conduct unlawful. It renders conduct unlawful only if the conduct possesses one or more of the prohibited characteristics particularised at s. 104(1). It is, however, common ground that s. 105(2)(b) does not strike at the motive or intellectual cause of the employers’ conduct. It is for the applicant for civil relief to establish the existence in fact of the circumstance to which the employers’ conduct is said to be attributable, i.e. in a case such as this, it is for the applicant to establish that he was dissatisfied and that circumstance was substantial and an operative factor in the employers’ decision to dismiss. There has been no suggestion on the appeal or before the Commission, that an honest and reasonable but mistaken belief of the appellant that the respondent was dissatisfied with his industrial conditions will suffice. Where the appellant and respondent part company is upon the question whether there must be a temporal nexus between the dismissal and the dissatisfaction with the industrial conditions. It is the submission of the respondent that it is sufficient for the applicant for relief to establish an earlier (but now spent) dissatisfaction with industrial conditions causally linked with the decision to dismiss. For the appellant, it is contended that the dismissal must be contemporaneous with an existing dissatisfaction with industrial conditions which is a substantial and operative reason for the dismissal. Before the Commission the respondent’s submission prevailed. I have come to the view that the appellants’ contention is correct. To begin with, there is the word “because” at s. 105(2)(b). The dismissal must be shown to be “because” the employee “is dissatisfied” with his industrial conditions. On its face, the linkage between s. 105(2)(b) and s. 104(1)(k) is to be temporal as well as causative. Second, other paragraphs of s. 104(1) distinguished between the past, the present and (indeed) the future. Section 104(1)(a) is perhaps the cardinal example. The inference is that tense has been selected deliberately. In Burnie Port Pty Ltd v Maritime Union of Australia (2000) 103 IR 153 the Federal Court was concerned with the Federal counter-part of s. 104(1)(h), viz s. 298 L(1)(h) of the Workplace Relations Act 1996. By s. 298L(1)(h), unlike s. 104(1)(h) of the Queensland Act “prohibited reason” is not “has the right to the benefit of an industrial instrument or order of an industrial body” but “is entitled with a benefit of an industrial instrument or order of an Industrial Body”. Section 298L(1)(a) was the counter-part of s. 104(1)(a). The Full Court, at 157, made use of s. 298L(1)(a) as follows:– “The ordinary and natural meaning of ss. 298K(1) and 298L(1)(h) is that, when the proscribed conduct occurs, the person concerned has, or enjoys, a present or existing legal entitlement to the benefit of an industrial instrument or order. The benefit might relate to the proposed employment or might have resulted from prior employment, but at the time of the proscribed conduct it must be a benefit to which the person concerned is entitled. The meaning contended for by the Union would required that s. 298L(1)(h) be construed as relating to a benefit to which the person concerned is or would be entitled if the proscribed conduct had not occurred. A major difficulty confronting the Union’s proposed interpretation of s. 298l(1)(h) is that in s. 298L(1), when the legislature intended to distinguish between a past, present or future event or state of affairs, it did so. For example, s. 298L(1)(a) refers to where the person the subject of the proscribed conduct ‘is, has been, proposes to become or has at any time proposed to become’ a member etc of an industrial association. The careful use of terms in s. 298L, suggests that when the legislature used the words ‘is entitled’ in s. 298L(1)(h), it intended to refer to a present or existing, rather than a future or prospective, entitlement.”. -- 3 of 5 -- 572 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 19 April, 2002 Further s. 104(1)(l) does not use “is” simpliciter. It is used with the participle “dissatisfied”. In Re Dingjan: ex parte Wagner (1994-1995) 183 CLR 323 at 363 Gaudron J observed: “Although there is no fixed rule, the use in a statute of the present tense, simpliciter, generally indicates that it is been used descriptively (the “simple present”), whereas “is” followed by a present participle (the “continuous” or “progressive” present) usually indicates contemporaneity.”. Finally, there is the participle itself. This is not a case in which it is necessary fully to plumb the content of “dissatisfied”. It may be admitted that in the context of s. 104(1)(l) the meaning of the word is a little elusive. The explanation (I think) is to be found in the (previously discussed) history. Those who drafted the Commonwealth Act of 1920 were not concerned with the English language but with overcoming the decision in Pearce v WD Peacock and Co Limited (1917) 23 CLR 199. The participle “satisfied” and the noun “dissatisfaction” featured in that decision because the Industrial Magistrate who had dealt with the matter at first instance had found that Mr Lord, a director of the defendant company, asked the dismissed employee to sign a letter to the effect that he was satisfied with his conditions of work and wages and had said to the dismissed employee, “We have treated you fairly, we have given you employment in winter time, and I do not care having men who are dissatisfied about the place.”. That being the origin of the word, it is not surprising that there is an element of uncertainty about it. However it seems tolerably clear that the word is not used in its ordinary dictionary meaning of “displeased with” or “not contented with” (as to the dictionary meaning of “dissatisfied” see CTC Resources VL v Commissioner of Taxation (1994) 48 FCR 397 at 433 Hill J.) The intent of the legislature was to use the word in the sense of the “dissatisfaction” which will drive a demand sufficient, if refused, to found a finding of “industrial dispute” in the constitutional, i.e; the dissatisfaction must be both actual and enduring. To that extent I disagree with the view expressed by the Commission at paragraph [44] that, if the respondent accepted that the appellant would not increase his remuneration and was prepared to, and did work on doing his best whilst continuing to believe that he was inadequately paid, the respondent continued to be dissatisfied. In my view the (dissenting) judgment of Isaacs J in Pearce v WD Peacock and Company Limited (1917) 23 CLR 199 at 209 relied upon below gives no support to the proposition contended for by the Commission. It was precisely because the employee, Mr Batchelor, having returned to work to do his best, did not stoically shoulder his grievance but “with his fellow unionists joined in asking for more in the way which the law expressly encourages and directs if more is desired” that Isaacs J held him to be dissatisfied. In summary, every indication is that there must be a temporal connection as well as a causal connection between the dismissal and the dissatisfaction with industrial conditions. In this case there was not any evidence to support a finding of such a connection. The appeal must be allowed. I have considered whether the matter should be remitted to the Commission to be heard and determined according to law. That course seems to me unnecessary. It may be accepted that at or about the inception of his employment by the appellant, the respondent was dissatisfied with his salary package. (The issue was whether the agreed salary was inclusive or exclusive of superannuation contributions.) It was open to the Commission to find, as it did, that on or about 23 April 2001 the respondent indicated to the appellant that if he should be so fortunate as to find another position carrying a more satisfactory salary/superannuation arrangement, his intention was to abandon his engagement to accept the position. The finding of the Commission, plainly open, was that the respondent was dismissed on 4 May 2001. If the matter had stopped there, because of the proximity in time, one might properly infer that the dissatisfaction of 23 April 2001 continued to be entertained by the respondent on 4 May 2001. However, the evidence did not stop there. To begin with, at paragraph 28 of his statement (as is customary in such matters there was a pre-trial exchange of witness statements) in discussing the meeting of 23 April 2001 the respondent said:– “That night I told my wife, Wendy, that I’d had had a meeting with my boss, and my pay was settled at $43,000 inclusive of super. I was not very happy but in my view the matter had been resolved.”. Cross examined about that passage the respondent said:– “In paragraph 28 you say, ‘That night I told my wife, Wendy, that I’d had a meeting with my boss and my pay was settled at $43,000 inclusive of super. I was not very happy but in my view the matter had been resolved.’ That’s what you say in that paragraph? - - Yes. So is this your evidence that after the meeting with Steve Pasfield on 23 April, as far as you were concerned, there were no outstanding issues between you and Allied? - - Correct. That you accepted that you were getting paid $43,000 all up, gross, inclusive of super, as your package? - - Yes. And as far as Allied were concerned that was the situation? - - Yes. So that when the meeting took place on 4 May it was a complete surprise and your termination was something that came out of the blue? - - Yes. And that so far as after the meeting with Steve Pasfield was concerned on 23 April you were going to continue working for however long you were Allied for that amount of money, inclusive of super, unless you got a wage increase or something like that? - - Yes. Yes. And that may take place after review or whatever; is that right? - - Could have done, yes. Right. And you were happy with that arrangement? - - Well, I wasn’t probably happy with it but I accepted it, yes. Yes. Well, you were satisfied with it? - - I accepted it. You’d made your pitch? - - Yes. And that was it, you got nowhere, okay, we move on; is that right? - - That’s right.”. On that evidence a finding that the respondent was dissatisfied on 4 May 2001 could not be made. In those circumstances the proper course is to invoke s 341(3)(b) and dismiss the proceedings in the Commission. For fullness I note that the Commission dealt with the evidence given by the respondent in cross-examination at paragraph 44:– “[44] I do not believe the exchange with the Applicant wherein he said that he had ‘accepted’ the arrangement could be interpreted as him indicating that he was no longer ‘dissatisfied’ with his remuneration package. He specifically did not agree with the question ‘you were satisfied with it?’. The Applicant’s response was ‘I accepted it’. I am of the view that the exchange shows that the Applicant had accepted that his remuneration was not going to increase and he was prepared to continue to work and do his best however he was still not satisfied that he was getting enough remuneration. In that sense he was dissatisfied with his remuneration package: see Pearce v W.D. Peacock & Company Limited (1917) 23 CLR 199 at 209 per Isaac J.”. -- 4 of 5 -- 19 April, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 573 For reasons previously advanced I do not accept that “dissatisfied” in s. 104(1)(1) is used in the sense developed by the Commission. Additionally I accept the appellant’s submission that there is another error at paragraph [44]. The proceedings before the Commission were civil proceedings. But the respondent sought a pecuniary penalty. The Commission was correct to test the respondent’s case against the test in Briginshaw v Briginshaw (1938) 60 CLR 336. Regrettably, in doing so, the Commission (in part) misapplied the test. The classic passage, at 361 to 362 per Dixon J is:– “The truth is that, when the law requires the proof of any fact, the Tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as the result of a mere mechanical comparison of probabilities independently of any belief it its reality. No doubt an opinion that a state of facts exists may be held according to indefinite graduations of certainly; and this has led to attempts to define exactly the certainty required by the law for the various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flying from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters, ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”. [Emphasis added]. If it is not legitimate to produce satisfaction by attributing meaning to uncertain words, still less is it legitimate to find satisfaction on a meaning hidden in superficially unequivocal words. It remains to say something of paragraphs 30 and 31:– “[30] It should also be noted that Exhibit 2 which was a letter from the Respondent’s Employee Relations Manager addressed to the Applicant states as follows:– ‘Your services with Allied Express as an On Site supervisor (on probation) will cease on 11 May, 2001 following your advice to resign your services received by Allied Express management during week ending 5 May, 2001.’. [31] The Respondent’s case at the hearing was that the resignation occurred on 23 April 2001 not during the meeting of 4 May 2001. This is inconsistent with the abovementioned correspondence forwarded to the Applicant and dated 10 May 2001. it is also interesting to note the use of the words ‘on probation’ in the correspondence. One can only assume they were put there for a purpose. The Employee Relations Manager was not called as a witness for the Respondent.”. It was not the appellant’s case that the respondent had resigned at the meeting of 23 April. It was the appellant’s (unsuccessful) case that the respondent had resigned at the meeting of 4 May 2001. So much appears from the appellant’s written submissions at first instance and from all of the evidence called by the appellant. It was not in dispute that the respondent’s appointment was a probationary appointment. Indeed, the engagement was pleaded as such in the application initiating the proceedings in the Commission. It was not necessary to call the Employee Relations Manager as a witness. The evidence of the State Operations Manager, Mr Williamson was that he had given instructions for the letter and that the Employee Relations Manager was a mere scriber. The respondent did not put a submission based on Jones v Dunkel (1959) 101 CLR 298. Paragraphs 33 and 34 are incorrect. The appellant is entitled to a correction of the record. It should also be recorded howsoever regrettable the inclusions of paragraphs 33 and 34 might have been, that the paragraphs fall well short of demonstrating “an eagerness to find the appellant guilty of the breach of the section”. The paragraphs are simply in the nature of an unfortunate, and in the circumstances inconsequential, error. I allow the appeal. I dismiss the respondent’s application for relief under Chapter 4 of the Industrial Relations Act 1999. Dated 8 April 2002. D.R. HALL, President. Released: 08 April 2002 Appearances:– Mr K. Watson of Counsel instructed directly by Allied Express for the appellant. Mr D. Williams of Counsel instructed by Reidy and Tonkin Solicitors for the respondent. -- 5 of 5 --