Clipmont Pty Ltd & Ors v Boral Resources (Qld) Pty Ltd [2001] QIRC 155 (2001) 168 QGIG 121

12 October, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 121 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 276 – application to amend or void contract Clipmont Pty Ltd and Others AND Boral Resources (Qld) Pty Ltd (Nos. B635 – B643 of 2001) COMMISSIONER FISHER 3 October 2001 Applications to amend or void contract – Industrial Relations Act 1999 – Case Law – Employees defined – s. 276(6) exclusions – Corporations and/or partnerships below earnings threshold not precluded from making application – Trust not legal person nor entity – Technical error in application – Commission rejects jurisdictional arguments – Applicants to advise Registry when ready to proceed with substantive matters. DECISION The Commission has before it nine applications seeking to amend or void contracts for services under s. 276 of the Industrial Relations Act 1999. The applicants are variously a corporation, partnership or trust. The applications have been listed together at this stage as the respondent is the same in all, viz, Boral Resources (Qld) Pty Ltd, and the respondent has raised a number of jurisdictional issues, which, if successful, would have the effect of excluding each of the applicants from the jurisdiction of the Commission. The respondent relies on three grounds to support its argument that the applicants have no standing to bring the applications. These are:– (i) section 276 of the Act should be read as excluding a corporation or partnership from bringing an application; (ii) the applicants are not parties to the contracts; and (iii) the applicants’ gross earnings exceeded the threshold prescribed by s. 276 (6) of the Act. It is convenient to deal with grounds (i) and (iii) together. The respondent argues that the applicants are not eligible to bring the applicants by reason of s. 276(6) of the Act which provides:– (6) A person cannot make an application under this section if – (a) an application has been made under section 74 for the same matter; or (b) the person – (i) is not a public service officer employed on tenure under the Public Service Act 1996; and (ii) has an annual wage of more than $68 000 or a greater amount stated in, or worked out in a way prescribed under a regulation.”. The respondent notes that the term “person” is not defined in the Act but is defined in s. 36 of the Acts Interpretation Act 1954 as – “‘person’ includes an individual and a corporation” and at s. 32 D – “(1) In an Act, a reference to a person generally includes a reference to a corporation as well as an individual. (2) Subsection (1) is not displaced merely because there is an express reference to either an individual or corporation elsewhere in the Act.”. Reference was also made by the respondent to s. 276(3) of the Act with prescribes who may make an application. “(3) An application may be made by – (a) a party to the contract; or (b) an inspector, for the party required under the contract to provide services; or (c) an organisation of employees or employers of which a party is, or has applied to become, a member, if it is acting with the party’s written consent.”. Again the term “party” is not defined in the Act but is defined in s. 36 of the Acts Interpretation Act 1954 as. “‘party’ includes an individual and a corporation”; “‘individual’ means a natural person.”. The respondent submits that the term “party” in s. 276(3) of the Act must mean an individual natural person. A corporation, partnership or a trust could never make an application under s. 74 of the Act. The respondent then argues – “Bearing in mind the restrictions in s. 276(6) of the IR Act: a. in the case of corporations, partnerships and/or trusts: i. a corporation, partnership and/or a trust cannot be a member of an organisation of employees permitted to bring an application under s. 276(3)(c); and ii. it would be repugnant to the objects of the IR Act for the monetary limit under s. 276(6) to exclude a natural person or a partnership consisting of natural persons from relief under s. 276 whilst leaving unchecked corporations, partnerships consisting of a corporation and/or trusts whose contract earnings exceed the money limit; -- 1 of 3 -- 122 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 12 October, 2001 iii. properly construed, ss. 276(3) and 276(4) preclude a corporation and/or partnership consisting of a corporation making an application under s. 276. b. in the case of partnerships: i. a partnership, not being a ‘person’, cannot bring an application under s. 276 or, ii. in the alternative, a partnership not being a corporation or a legal entity and having no independent legal existence cannot bring an application under s. 276. c. further in the case of partnerships, if it is held that a partnership consisting of natural persons can bring a s. 276 application, then: i. a partnership consisting of corporations cannot bring a s. 276 application; and ii. s. 276(6) applies, in an event, to prohibit a s. 276 application by a partnership where the earnings of the partnership exceed the prescribed amount. d. in the case of trusts: i. a trust, not being a “person”, cannot bring an application under s. 276 or, ii. in the alternative, a trust not being a corporation or a legal entity and having no independent legal existence cannot bring an application under s. 276;”. The applicants reject the submissions of the respondent and essentially rely on the decision of Blades, C. in Braunack & Anon v Couriers Please Ltd (2000) 165 QGIG 225 to support its decision. In that decision, the applicants say the Commission held that a partnership (as distinct from individual persons) could make an application under s. 276 of the Act. The applicants point out that although the Commission did not finally decide the question of the standing of a corporate applicant as it was outside the scope of the application, a view was expressed that corporations may not be captured by s. 276(6). Reference was made to the decision of Hall, P on the same matter where the conclusions and reasoning of Blades, C was adopted. Couriers Please Pty Ltd v Graham Braunack and Anor (2001) 166 QGIG 141. In the appeal decision, Hall, P commented that the approach of the Commission could result in big corporations bringing applications under s. 276. The applicants submit that the decision acknowledges that corporations could indeed bring applications. The respondent’s approach is that the determination of who can make an application should commence from an interpretation of s. 276(6). The Act in s. 276(3) provides who may make an application and includes at (a) a party to the contract. “Party” is defined in the Acts Interpretation Act 1954 as “includes an individual and a corporation”. Section 276(6) specifies who may not make an application and refers to a “person” in certain circumstances. I agree with the view of Blades, C expressed in Earner v Queensland Investment Corporation (2001) 167 QGIG 267) that s. 276(6)(b) should be read as “a person can not make an application if the person is other than a public servant on tenure and has an annual wage of more than $68 000.”. Section 276 gives the Commission the power to amend or declare void both a contract of services that is not dealt with by an industrial instrument and a contract for services. Section 276(6)(b) would seem to have relevance only to a contract of service because it refers to the annual wage of the excluded person. “Wages” is defined in Schedule 5 – Dictionary of the Act to mean:– “(a) an amount payable to an employee for – (i) work performed, or to be performed, by the employee; or . . .” (emphasis added). Wages are thus payable only to employees. “Employee” is defined in s. 5 of the Act and although members of a partnership in specified circumstances might be employees, the partnership itself cannot be an employee. Neither can a corporation be an employee. Employees are engaged under a contract of service. Considering all this, the term “person” where it appears in s. 276(6) of the Act must be interpreted as an individual and not a corporation. This may prevent employees who are not engaged under an industrial instrument and who earn in excess of $71 200 from making an application under s. 276 but permit corporations and partnerships to do so. This may be an unintended consequence of the legislation but the prospect of corporations making applications was discussed by Hall, P in Couriers Please Pty Ltd v Graham Braunack and Anor (supra). Section 276(6) provides for two types of exclusions. Paragraph (a) excludes cases where an application for reinstatement has been made. Clearly it is only an individual who is an employee who can make such an application. Paragraph (b) has already been dealt with. This confirms the view that the exclusions are directed only at natural persons who are employees. In view of the construction given of s. 276(6), those applicants in these matters who are either a corporation or partnership, whose earnings exceed $71 200 are not precluded by this provision from making an application. Who may make an application is provided for in s. 276(3) and includes a party to a contract. In Braunack (supra) Blades, C decided that “party” as used in s. 276(3) included natural persons in a partnership. Detailed reasons were given for that decision. They were confirmed on appeal. The Commission is bound by a decision of a superior court. Accordingly, a partnership consisting of natural persons, is able to be a party to a contract and make an application. In the appeal decision Couriers Please (supra), the prospect of corporation making an application was clearly contemplated by Hall, P. The Commission finds that corporations are not excluded by s. 276(3) from making an application to vary a contract for service. One of the applications, B638 of 2001, is brought by Bonnell Transport (a partnership). The respondent argues that a partnership consisting of a corporation as well as a natural person or persons is excluded. The Commission has already dealt with the argument about whether a corporation or partnership can make an application. Given the affirmative findings on these matters, the Commission can see no impediment to a partnership consisting of a partnership (comprised of natural persons) and a corporation from being an applicant. Further, as Blades, C said in Braunack (supra):– “It must be understood that a partnership is not a corporation, is not a legal entity and has not independent legal existence. It is constituted by legal entities whether they be by natural persons or corporations or a mixture of both.”. -- 2 of 3 -- 12 October, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 123 There is however a deficiency in the application in that the persons constituting the partnership are not named. The applicant acknowledges this and foreshadows seeking leave to amend the name of the applicant to “Jack Pearce Haulage Pty Ltd and E.A. and H.M. Bonnell, a partnership, trading as Bonnell Transport.”. This matter should be raised when the application next comes on for hearing. I have dealt with the capacity of a corporation or partnership to make an application. One of the applications (B641 of 2001) has been made by a trust, the Brinckman Business Trust. A partnership though not a legal entity, can be distinguished from a trust on many grounds including being constituted by natural persons and hence being able to make an application under s. 276(3) of the Act. In contrast, a trust is not a separate legal entity (being no more than a collection of duties, disabilities, rights and powers) and is not a legal person which can sue and be sued in its own name. (Latimer, P. “Australian Business Law” CCH, 1990 p. 690). Accordingly, the respondent effectively seeks Case No. B641 of 2001 be struck out. In its response submissions, this applicant belatedly realised its error and has advised that “leave will be sought to amend the proceedings to make the applicant Peter Brinckman as trustee for the Brinckman Business Trust.”. A trustee, being a natural person, would be able to make an application. The application contains an error which is capable of rectification. The Commission is not prepared to dismiss Case No. B641 of 2001 at this point for what would appear to be a significant but nonetheless technical error. Further will be heard from the parties on this matter when the case is next relisted. This leaves the issue of whether certain applicants are parties to the contracts. The applications in question are B635, B637, B639, B640, B642 and B643 of 2001. The submission on this matter by the respondent is that the corporation that has made an application is not the party as it was not the original contracting party. The respondent contends it is a specified individual who is the party to the contract. The named corporation is subcontracting to the original contractor with any cause of action being against the principal. Because the contracts as they were originally construed did not include the applicants, then the applicants are unable to bring the applications. The applicants submit that: “It is a matter for evidence at the hearing of the matter as to whether, at the time the contracts were terminated by the Respondent, each of the Applicants was a party to a contract with the Respondent. It is the Applicant’s case that each of the Applicants was a party to a contract with the Respondent at the time the contracts were terminated. Simply because the original contracting parties may have been different, does not mean that the Applicants were not parties to the contract at the time of the Respondent’s termination of the contracts. Evidence will be led at hearing in relation to how the changes in contracting parties occurred and how the Respondent acquiesced and indeed consented (expressly or by implication) in those changes. Those are matters for evidence however and it is not appropriate for the Commission to determine on a summary basis that the Applicants have no standing on this basis without hearing evidence on these matters.”. The Commission agrees with the applicants that these matters are for evidence and that it is inappropriate for the Commission to determine at this point that the applicants have no standing on the grounds advanced. In summary, the Commission rejects each of the jurisdictional challenges raised by the respondent. The applicants are to advise the Registry in writing when they are ready to proceed with the substantive matters. Order accordingly. G.K. FISHER, Commissioner. Appearances:– Released: 3 October 2001 Mr M. Brady (Barrister) instructed by Mr J. O’Dwyer (Reidy and Tonkin) for the applicants. Mr J. Murdoch SC instructed by Mr H. Lepahe (Corrs Chambers Westgarth) for the respondent. -- 3 of 3 --