Earner v Queensland Investment Corporation and QIC Properties Pty Ltd [2001] QIRC 98 (2001) 167 QGIG 267

13 July, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 267 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 276 – power to amend or void contracts Colin Earner AND Queensland Investment Corporation and QIC Properties Pty Ltd (No. B775 of 2001) COMMISSIONER BLADES 29 June 2001 Unfair contract – Section 276(6) Industrial Relations Act 1999 – Applicant an employee (not a public servant) earning more than $71,200 – Whether applicant excluded – Applicant unemployed at time application was made – Whether a person who “has” an annual wage – “Has” found to be a descriptive expression rather than indicating contemporaneity – Whether only public service officers are excluded – Words in brackets in Braunack v Couriers Please 165 QGIG 225 regarding s. 276(6) held to be dicta and not followed – Held applicant excluded. DECISION This preliminary issue involves the question whether the applicant, who seeks relief under the provisions of s. 276 of the Industrial Relations Act 1999 (the Act) relating to unfair contracts, is excluded from being entitled to rely upon those provisions by reason of s. 276(6). The applicant was a Senior Leasing Executive with the Queensland Investment Corporation which is a wholly owned subsidiary of QIC Properties Pty Ltd. He earned a salary of more than $71,200 per annum and was not a public servant. He has not made an application under s. 74 of the Act for the same matter. He was, at the time he made the application, unemployed and not in receipt of any wages. Section 276(6) of the Act provides as follows:– “(6) A person can not 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 figure of $68,000 is to be read as $71,200 as a consequence of s. 4 of the Industrial Relations Regulation 2000. The respondent alleges that the applicant is a person who is disqualified by the provisions of s. 276(6)(b) and is therefore not entitled to make the present application. It is alleged that the applicant is not excluded for two reasons. First, there is an apparent absurdity in s. 276(6), a submission which is based upon a decision of the Commission as presently constituted, in Braunack v Couriers Please (2000) 165 QGIG 225, affirmed on appeal in Couriers Please v Graham Braunack and Others 166 QGIG 141. Secondly, s. 276(6)(b)(ii), because of the words “has an annual wage of”, excludes only a person who has the following criteria satisfied: (a) The person is an employee; (b) The person is in employment at the time that the application is made under s. 276; and (c) The person is in receipt of an annual wage at the time of making the application which exceeds $71,200 (or a higher amount prescribed by regulation). Dealing with the first part of the submission, this Commission in Braunack, in holding that “party” as used in s. 276(3) included natural persons who were in partnership, said: “(It can readily be seen and is conceded by both learned Counsel that a literal reading of this subsection creates an absurdity, i.e. that a person cannot make an application unless the person is a public service officer. That was clearly not intended by the Legislature and paragraph (ii) (sic) should be read without the word ‘not’.)”. It was submitted that because the President agreed with the Commission’s conclusions and with its reasons this Commission is therefore bound by the words used in that passage. The submission proceeded that by deleting the word “not” from the provision, s. 276(6)(b) excludes only public service officers who are (a) employed on tenure under the Public Service Act 1996 and (b) have an annual wage of $71,200 or more. It is my view that this interpretation is not correct and the statement/concession in Braunack was not correct. In Braunack, learned Counsel made the concession “on the run”, substantially contributed to by a version of the Industrial Relations Act 1999 (from which he had been reading) which contained serious and substantial errors. Added to that circumstance was the fact that there were no submissions on the point which was not in contention and a decision about which was not sought. While some criticism as to the draftsmanship of s. 276(6) may be justified, the provision in a simplified form can 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”. Read in that manner, the provision makes sense and one does not need to delete words used by the Legislature (i.e. the word “not”). As the text book Pearce and Geddes Statutory Interpretation in Australia says at para 2.12: “As a general principle, the courts have pointed out that they are not at liberty to consider any word or sentence as superfluous or insignificant. All words must prima facie be given some meaning and effect.”. This aspect of the matter was not even considered in Braunack. -- 1 of 4 -- 13 July, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 268 Section 276(6) was in the following form when the Industrial Relations Act 1999 came into force on 1 July, 1999. The subsection reads:– “(6) A person can not make an application under this section if – (a) an application has been made under section 74 for the same matter; or (b) the person is someone to whom chapter 3, part 2 does not apply under section 72.”. Chapter 3 Part 2 relates to Unfair Dismissals. Section 72 of the Act at that time provided, inter alia – “Section 73(1) does not apply to – . . . (e) an employee – (i) who is not employed under an industrial instrument; and (ii) who is not a public service officer employed on tenure under the Public Service Act 1996; and (iii) whose annual wages immediately before the dismissal are more than $68 000 or a greater amount stated in, or worked out in a way prescribed under a regulation.”. Paragraphs (a), (b), (c) and (d) relate to employees on probation, short term casuals and employees employed for specified periods or tasks. The subsection was amended as from 23 July, 2000 by the Training and Employment Act 2000 where amendments were made but ss (1)(e) remained constant. By that Act however, the present ss (6)(b) was inserted into s. 276, in lieu of the existing ss (6)(b). Section 14B of the Acts Interpretation Act 1954 permits the use of extrinsic material in the interpretation of a statute, in circumstances where there is ambiguity or obscurity, to provide an interpretation of the provision; if the ordinary meaning leads to a result that is absurd or unreasonable, to provide for an interpretation which avoids that result; or in any other case, to confirm the interpretation conveyed by the ordinary meaning of the provision. It seems to me that those provisions authorise resort to the extrinsic material available in this case, namely the Explanatory Notes to the Training and Employment Bill 2000 which provide: “Clause 40 amends section 276(6) to limit the exclusion from section 276 to persons whose annual wage is greater than $68,000 or a greater amount prescribed by a regulation, and who are not public service officers employed on tenure under the Public Service Act 1996.”. Resort to the Minister’s Second Reading Speech to the Training and Employment Bill 2000 is also authorised and in that regard, the Hon. P.J. Braddy, Minister for Employment, Training and Industrial Relations said:– “The amendments to the Act fall within three categories. The first involves technical amendments that ensure the provisions of the Act operate in the manner that they were intended. Users of the Act have brought these to my attention since the introduction of the Act in July, 1999. These amendments do not involve any change to the policy position established in the Act last year.”. The other categories related to unfair dismissal for Federal award employees and consequential amendments. As originally inserted in the Act, the exclusion operated on an employee who possessed three characteristics, that is, was not employed under an industrial instrument, was not a public servant on tenure and whose wages exceeded $68,000. The simplified form of s. 276(6)(b) as amended and as related above, namely, “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” is entirely consistent with that former provision and with the Explanatory Note. It is my view that the interpretation placed upon the provision in the Commission’s decision in Braunack is plainly not correct and should not be followed. It was obiter dicta. In Slack v Leeds Industrial Co-operative Society Ltd (1923) 1 Ch 431 Lord Sterndale MR said: “Dicta are of different kinds and of varying degrees of weight. Sometimes they may be called almost casual expressions of opinion upon a point which has not been raised in the case, and is not really present to the judge’s mind. Such dicta, though entitled to the respect due to the speaker, may fairly be disregarded by judges before whom the point has been raised and argued in a way to bring it under much fuller consideration.”. In West (Richard) & Partners (Inverness) Ltd v Dick (1969) 1 All ER 289 Megarry J said: “Some authorities distinguish between obiter dicta and judicial dicta. The former are mere passing remarks of the judge, whereas the latter consist of considered enunciations of the judge’s opinion of the law on some point which does not arise for decision on the facts of the case before him, and so is not part of the ratio decidendi.”. The statement in Braunack was not necessary to the decision and in fact appears to have no relevance at all to the decision. It was a mere passing remark, hence the brackets. It is hard to imagine a more casual expression of opinion upon a point not raised in the case. It is certainly acknowledged that the doctrine of judicial precedent requires each Court or Tribunal in its own hierarchy to, without question, adhere to and follow the decisions of the Court or Tribunal superior to it in that hierarchy. A lower Court or Tribunal is clearly bound by the decisions of a Court or Tribunal higher to it. It is not bound by its own decisions or by the decisions of a Court or Tribunal of equal ranking although such decisions are usually persuasive, see for example Harrison v Electcom Limited 163 QGIG 347 at 349. A Court or Tribunal certainly does not have to follow its own decisions or those of a Tribunal of equal rank if it comes to the conclusion that the prior decision was incorrect. This is more so when the specific point at issue is raised and argued in the later case for the first time. As to the submission that because the President adopted the reasons of the Commission and therefore the Commission is bound by the passage, it is pointed out that the President agreed “with the Commission’s conclusions and with its reasons”, presumably the reasons for that conclusion. That is far removed from saying that the President agreed with every word in the decision, in fact the President spoke of using different words or in a shortened form. It is significant that the words in the passage were not necessary for and therefore not reasons for the conclusion reached by the Commission and in my view it cannot be said that every word in the Commission’s decision became binding because the President agreed with the conclusion. The doctrine of judicial precedent does not go that far. -- 2 of 4 -- 13 July, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 269 I reject the submission that s. 276(6)(b) excludes only public service officers employed on tenure under the Public Service Act who have an annual wage of $71,200 or more. I am satisfied that the sub-paragraph excludes a person other than such a public service officer on tenure and who has an annual wage in excess of $71,200. The submissions in support of the second contention refer to the differences between s. 72 which makes it clear that the unfair dismissal provisions do not apply to certain categories of employees and to s. 276(6) which states that even though a person might be covered by s. 276, in certain circumstances that person “can not make an application”. Because of the differences, s. 276(6) requires the Commission to assess the situation as at the time when the application is made whether the exclusion in paragraphs (a) and (b) apply. This is because s. 276(6) must have a temporal element to it, that is, there must be a point in time as at which the Commission determines whether the applicant is excluded. Section 276(6)(a) requires the Commission to exclude a person who at the time of making the application under s. 276 had already made an application under s. 74 for unfair dismissal. The same approach must be adopted in relation to s. 276(6)(b), i.e., it requires the Commission to exclude a person who at the time of making the application under s. 276 falls within the criteria in paragraph (i) and (ii). Thus a person not in receipt of a wage at the time that the application is made under s. 276 is not excluded. This contention is further supported by looking at the provisions of s. 72(1)(e)(iii) whether before or after the amendment and which, in effect, provide: “an employee . . . whose annual wages immediately before the dismissal are more than $71,200.”. Furthermore, s. 276(6) uses a present tense with the word “has” whereas it could have used the past tense “had” if it were to remain consistent with the former provision which applied s. 72(1)(e)(iii) “whose annual wages immediately before the dismissal are more than $71,200”. It was further submitted that in electing not to use this wording or a similar formula it is reasonable to conclude that the intention was to create a different outcome to that achieved by the previous version of s. 276(6). However, this conflicts with what the Minister said in his Second Reading Speech (supra) that “these amendments do not involve any change to the policy position established in the Act last year”. There is no doubt that there is some tension between the words used. However, it is submitted by the respondent that the apparent use of the present tense “has” in ss (6) has no different effect from the apparent use of the present tense “the contract is” in ss (1). With that submission I respectfully agree. Sections 127A and 127C of the Federal Industrial Relations Act 1988 were expressed in the present tense, e.g. “is unfair”, “is harsh”, “is against the public interest”, “is binding”, “is a party”. It was held by the High Court in Re Dinigan; Ex parte Wagner (1994-1995) 183 CLR 323 that the power conferred by s. 127B to set aside or vary the terms of a contract can be exercised in relation to a contract that has been discharged. Gaudron J said (at p362) that the use of the present tense may be used descriptively or it may be used to signify contemporaneity. Her Honour also said that the use of the present tense in ss 127A and 127B was merely descriptive of the nature of the contracts rather than the use of a continuous or progressive present which indicates contemporaneity. Commissioner Bloomfield in Minter v Q.T.U. (1994) 146 QGIG 189 held that, notwithstanding the use of the term “is performed” as used in s. 39 of the Industrial Relations Act 1990 the Commission had power to deal with a completed contract. I think it is useful to note that the Industrial Relations Act 1990 and the Industrial Relations Act 1999 (in the definition “unfair contract”) both contain a provision which in part reads “provides, or has provided, a total remuneration”. A similar provision was not in the Federal Legislation examined by the High Court, thus lending stronger support to the argument that the section applies to contracts which have ended. It is not in contention that the section applies to terminated contracts but it illustrates that words such as “the contract is” are unrelated to contemporaneity. Thus it is my view that the word “has” should be read as descriptive of the nature of the remuneration rather than indicating contemporaneity in the same way that the words “the contract is” in ss (1) is to be read. To hold otherwise would provide some curious results highlighted in the respondent’s submission. An applicant in receipt of a wage in excess of $71,200 could avoid the operation of the s. 276(6) exclusion by the simple act of resigning. Furthermore, while the contract remains in force, there exists no access to a remedy in respect of the contract for an employee earning more than the limit but such a right arises immediately the contract comes to an end, a result which surely was not intended for it has no logic. It gives greater rights to an employee whose employment has been terminated to one whose employment is still on foot. Moreover, if the applicant terminated the contract and immediately obtained other unrelated employment at a wage greater than $71,200, no application could be brought in respect of the unfair contract, even if that contract had produced only negligible wages to the employee. It was pointed out by the applicant in the submissions that s. 276 was remedial in nature (Beahan v Bush Boake Allen Australia (1999) 47 NSWLR 648), which legislation should be construed beneficially so as to give the fullest relief which the fair meaning of the language will allow (Bull v Attorney- General for New South Wales (1913) 17 CLR 370 at 384). In Beahan, the similar New South Wales provision of s. 109A excluded from the Unfair Contracts provisions of s. 106 a contract of employment for any reason for which: “(a) an application has been or could have been made by the employee under Part 6 (Unfair dismissals), or (b) such an application could have been made but for the provisions of section 83 that exclude the employee from making an application under that Part.”. That the applicant had an annual remuneration of $131,000 was not the point of the exercise. The Court was concerned with the distinction between unfair dismissal claims and unfair contracts, eventually holding that s. 109A excludes a contract of employment only where the unfair contract claim is an unfair dismissal claim in disguise and where essentially it is of the nature of an unfair dismissal. But the Court said: “As a general proposition, our view in such a situation is that the language used in s. 109A should be strictly construed so as to remove from s. 106 only those contracts of employment which unambiguously fall within the exclusion provided by s. 109A.”. However, as was stated in Bull, “this means ... not that the true signification of the provision should be strained or exceeded”. The situation as it existed before the amendment to s. 276(6) was that a person (not a public servant) “whose annual wages immediately before the dismissal are more than $68,000” was excluded. Why not use the term “were” if that provision only related to contracts where an employee had been dismissed? Because it obviously does only relate to contracts where an employee has been dismissed, it is perhaps illustrative of the use of descriptive language rather than language denoting contemporaneity. No change was intended to that provision by the amendment and it is consistent with the use of “are” in that former provision that the Legislature has used the term “has” in the amendment. The use of the present tense “has” in my view is merely descriptive and not temporal denoting contemporaneity. Further, there would arise some rather curious results if the interpretation sought by the applicant be appropriate. -- 3 of 4 -- 13 July, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 270 For these reasons, I am of the opinion that the interpretation sought by the respondent is correct and that the phrase “has an annual wage of more than $68,000” must be taken to refer to the relevant contract sought to be declared unfair whether terminated or not. The result is that the applicant is excluded from the provisions of s. 276. The application is struck out. If there is to be an application for costs, it should be lodged within 14 days. I order accordingly. B.J. BLADES, Commissioner. Released: 29 June 2001 Appearances:– Mr G. Martin, Counsel, instructed by Blake Dawson Waldron, for the Applicant. Mr A. Herbert, Counsel, instructed by Mr M. Osborne, Solicitor, McCullough Robertson, for the Respondent. -- 4 of 4 --