Earner v Queensland Investment Corporation and QIC Properties Pty Ltd [2001] ICQ 63 (2001) 168 QGIG 282

282 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 23 November, 2001 INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(1) – appeal against decision of industrial commission Colin Earner AND Queensland Investment Corporation and QIC Properties Pty Ltd (No. C43 of 2001) PRESIDENT HALL 8 November 2001 DECISION The appellant who was formerly a Senior Leasing Executive with Queensland Investment Corporation (a wholly owned subsidiary of QIC Properties Pty Ltd) sought relief under s. 276 of the Industrial Relations Act 1999. The respondent took the preliminary point that s. 276 (6) denies the appellant access to the relief otherwise made available by s. 276. The Commission resolved the point in favour of the respondent. The appellant’s application was struck out. The decision is reported at 167 QGIG 267. This is an appeal against that decision. The material facts are– (a) when employed as a Senior Leasing Executive the appellant earned a salary in excess of $71,200 per annum; (b) the application under s. 276 related to the contract pursuant to which the appellant had been employed as a Senior Leasing Executive; (c) at the time that the application was made the appellant was unemployed and had no annual wage; and (d) at no material time had the appellant been a public service officer employed on tenure under the Public Service Act 1996. Section 276(6) 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 now to be read as $71,200 as a consequence of s. 4 of the Industrial Relations Regulation 2000.) The appellant advances two contentions. One, the appellant was not denied access to relief under s. 276 because he did not have an annual wage of more than $71,200 when he made the application. Two, the appellant was not denied relief under s. 276 because he was not a public service officer on tenure under the Public Service Act 1996. At the heart of the first contention is the proposition that at s. 276(6) “has an annual wage” is used in a temporal sense and suggests contemporaneity with the making of the application. For the respondents’ reliance is placed on s. 276(1) and the decision of the High Court in Re Dingjan, ex parte Wagner (1994-1995) 183 CLR 323. Section 276(1) provides as follows:– “(1) On application, the commission may amend or declare void (wholly or partly) a contract if it considers – (a) the contract is – (i) a contract of services that is not covered by an industrial instrument; or (ii) a contract for services; and (b) the contract is an unfair contract.”. Re Dingjan, ex parte Wagner (1994-1995) 183 CLR 323 did not, of course, concern s. 126(1). The subject matter of Re Dinjan ex parte Wagner, ibid, was the unfair contract provisions of the Industrial Relations Act 1988 (C’wth). But, materially, the High Court was required to consider whether s. 127B of the Commonwealth Act conferred power to set aside or vary a contract which had been discharged. By a majority, (Brennan J dissenting) it was held that s. 127B did confer such power, notwithstanding the use of the present tense. Importantly, at 362 Gaudron J observed: “The present tense may be used descriptively or it may be used to signify contemporaneity. Although there is no fixed rule, the use in a statue of the present tense, simpliciter, generally indicates that it is being used descriptively (the “simple present”), whereas “is” followed by a present participle (the “continuous” or “progressive” present) usually indicates contemporaneity.”. As I understand the appellant’s argument it is not contended that the present tense at s. 276(1) is used other than descriptively. Neither is it contended that s. 276 does not apply where the contract has been executed, performed or discharged or is otherwise at an end. The submission is that s. 276(6) had no counterpart in the mix of Commonwealth provisions considered in Re Dingjan, ex parte Wagner, op.cit and that decision is not directly in point. The submission is correct, though the observations of Gaudron J would appear to assert a guideline of general application. The point of emphasising s. 276(1) is that the provisions describe the contracts which are exposed to the relief at s. 126. If like s. 276(1), s. 276(6) is read descriptively, the annual wage which will deny an applicant relief, is an annual wage fixed by the contract subject to attack. If “has” is treated as suggestive of contemporaneity, the availability of relief will depend on circumstances unrelated to the contract under attack. A former employee who always had an annual wage in excess of $71,200 whilst employed, would, (for the first time) be entitled to attack his employment contract on the day on which it terminated and would promptly lose the opportunity if he accepted employment with a new employer wholly unrelated to his former employer, say, three days later. Reliance is placed on the character of s. 276, which is said to be remedial legislation and to be beneficially construed. Reliance is placed also on s. 3(a) of the Act by which it is declared that one means by which the Act achieves its principal object is by “providing for rights . . . and social justice for all employees”. It is submitted that s. 276(6) should be read so as to restrict the range of employees denied access to the relief at s. 276, and to allow all employees the option of tolerating an unfair contract or terminating the contract and attacking it under s. 276. There is some merit in the proposal, but it -- 1 of 3 -- 23 November, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 283 is a proposal for legislative change which cannot be adopted in the course of interpreting the existing provision. There is nothing remedial about s. 276(6)(b)(ii). It denies relief to a small group of employees whose employers remain free to seek to modify the contract pursuant to s. 276. It does so notwithstanding that contractors similarly remunerated retain the right to relief under s. 276. Reliance is also placed upon the history of s. 276(6). In its original form s. 276 (6) provided: “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.”. Section 72 relevantly provided: “(1) Part 2 does not apply to – (a) an employee during the first 3 months of employment with an employer (the “probationary period”), if the dismissal is for a reason other than an invalid reason, unless the employee and employer agree in writing that the employee serve – (i) a period of probation that is shorter than the probationary period; or (ii) no period of probation; or (b) an employee serving a period of probation that is longer than the probationary period, if – (i) the period decided, by written agreement between the employee and employer before the employment started, is a reasonable period having regard to the nature and circumstances of the employment; and (ii) the dismissal is for a reason other than an invalid reason; or (c) a short term casual employee; or (d) an employee engaged for a specific period or task, unless the main purpose of engaging the employee in that way is, or was at the time of the employee’s engagement, to avoid the employer’s obligations under part 2; or (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 dismissal are more than $68 000 or a greater amount stated in, or worked out in a way prescribed under a regulation; or (f) an apprentice or trainee.”. Whatever might have been intended the recasting of s. 276(6) wrought by the Training and Employment Act 2000 made much change. Howsoever s. 72(1)(e) was to be construed, each of the following categories, viz – • employees on probation; • casual employees; • employees on a fixed term engagement; and • employees employed for a specific task; previously denied access to the relief at s. 276 were granted access to that relief. In asserting in his Second Reading Speech that– “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 changes to the policy position established in the Act last year.”. *[The other categories related to unfair dismissal for Federal award employees and consequential amendments.] the Minister, with respect, fell into error. But there is no extrinsic material to which regard may legitimately be had, and certainly there is nothing in the Training and Employment Act 2000, to suggest that the wheel had gone full circle, and a policy of denying access to s. 276 to those denied a remedy for an unfair dismissal had became a policy of allowing access to s. 276 to all persons denied a remedy for an unfair dismissal whilst, in the case of those of them with an annual wage of $71,200, denying access to s. 276 during the currency of the contract. The appellant’s first contention must be rejected. The appellant’s second contention, viz the appellant was not denied relief under s. 276(6) because he was not a public service officer on tenure under the Public Service Act 1996, may be more readily disposed of. It may be conceded that because of the double negative s. 276(6)(b) is substantially unintelligible. The Commission took some liberty with the words chosen by Parliamentary Counsel and read the provision as meaning “A person cannot make an application if the person is other than a public servant on tenure and is a person who has an annual wage of more than $71,200”. The alternative construction, and the construction pressed by the appellant, is that -- 2 of 3 -- 284 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 23 November, 2001 the provision should be read as if the word “not” where it secondly appears should be deleted. So read, and noticing that the conjunctive “and” is used between subparagraph (i) and subparagraph (ii), the provision creates only one exclusion. The only persons excluded are those who are employed on tenure under the Public Service Act 1996 and who are also in receipt of an annual wage of $71,200 or more. The Commission considered that construction but rejected it on the ground that the Commission was not at liberty to consider any word as superflous or insignificant, compare Pearce DC and Geddes RS, Statutory Interpretation Australia (Fourth Edition), at para 2.12. Notwithstanding an infelicitous passage in Braunack v Couriers Please (2000) 165 QGIG 225, affirmed on appeal 166 QGIG 141, I consider the argument to which the Commission yielded to be entirely persuasive. In all the circumstances I dismiss the appeal. I reserve the question of costs. Dated this eighth day of November, 2001. D.R.HALL, President. Released: 8 November 2001 Appearances:– Mr G. Martin SC instructed by Blake Dawson and Waldron, Solicitors, for the appellant. Mr A.K. Herbert instructed by McCullough Robertson, Solicitors, for the respondent. -- 3 of 3 --