Braunack v Couriers Please Pty Ltd [2000] QIRC 118 (2000) 165 QGIG 225

10 November, 2000 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 225 Y:\GAZETTES\INDUSTRIAL\2000\NOVEMBER 2000\10-11-00\GAZ.DOCgaz.doc QUENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 276 –amending or voiding contract of service Graham Braunack AND Couriers Please Pty Ltd (No. B511 of 2000) COMMISSIONER BLADES 1 November 2000 Unfair contracts – Application under s. 276 Industrial Relations Act 1999 by partnership – Two natural persons constituting partnership – Meaning of term “party” in s. 276(3) – Whether “party” includes partnerships and corporations – Held “party” includes natural persons who are a party to a contract – Application permitted by Act. DECISION This is an application brought by Graham Braunack, or alternatively (as permitted by an amendment), G. and J.C. Braunack for orders amending or voiding the contract for services between Couriers Please Pty Ltd under s. 276 of the Industrial Relations Act 1999 (the Act). The material indicates that Graham Braunack and Jennifer Braunack entered into a contract with Couriers Please Pty Ltd on 17 February 1997. The application alleges a shortfall between the applicants’ remuneration and entitlements under the Transport, Distribution and Courier Industry Award - Southern Division as being $141,180 over a three year period. It is alleged that the contract is designed to avoid the provisions of an industrial instrument and is patently unfair. The application seeks an order that the contract be declared void save and except for the portions of the contract, which have previously entitled the applicant to remuneration. The application also seeks an order for the payment of the aforementioned sum. The respondent submits that Graham and Jennifer Braunack was a partnership which has no standing to bring this application. Section 276(3) which provides that an application may be made by “(a) a party to the contract;” is relied upon in that unless the words are read down, a major bank which may be party to a contract with a major corporation for the supply of financial services may bring an application in the Commission. That meaning would go far beyond the parameters normally associated with the Act. The respondent submits that the term “party” must mean an individual natural person. The respondent also points to the objects of the Act in s. 3, the restrictions placed on persons bringing an application in s. 276(6), that partnerships or corporations cannot be members of an organisation of employees permitted to bring an application under s. 276(3)(c) and that under s. 276(7) a comparison of remuneration cannot be made when the contracting party is not an individual natural person. The submission is not that a corporation cannot bring an application under s. 276 because clearly it can [s. 276(3)(c)], but that a corporation as a provider of services cannot bring an application because of the provisions of ss. (6). The applicant alleges that the relief is not limited to individual natural persons as opposed to natural persons who may constitute a partnership, nor does it exclude a corporate entity. Unlike the Federal provisions (ss.4 (1A); 127A – 127C Workplace Relations Act 1996) the Act does not limit the application of the section to contracts for services which are binding on “independent contractors” and which relate to the performance of work by an “independent contractor”. Independent contractors are defined in the Federal legislation as “natural persons”. The Act instead applies to all contracts for services that are unfair unless the applicant is excluded under s. 276(6). The applicant relied upon A Gerrard & Ors v. Mayne Nickless & Ors (1996) 135 ALR 494 and Re Dingjan & Ors; ex parte Wagner & Anor (1995) 183 CLR 323. In the alternative, if the Commission finds that a partnership cannot bring an application under s. 276, it is submitted that Graham Braunack personally remains an applicant and the application should proceed on his behalf. There is no doubt in my mind that the “party” to the contract is “Graham and Jennifer Braunack” and not “Graham Braunack” individually and that the “party” in s. 276(3) is “Graham and Jennifer Braunack” and not “Graham Braunack”. In Gerrard, the Court heard argument that if parliament had intended ss. 127A and 127B to apply only to a contract to which a single individual was a party, it could have used the expression “individual” in s. 4(1A) rather than “natural person”. The Federal Act, s. 4(1A) provides that “To avoid doubt, it is declared that a reference in this Act to an independent contractor is confined to a natural person”. “Individual” is defined under s. 22(aa) of the Federal Acts Interpretation Act as meaning “a natural person”. A corporation is therefore excluded under both terms. It was held that the Australian Industrial Relations Commission had power to make orders under ss. 127A - 127C of the Industrial Relations Act 1988 (the provisions of which being identical to those of the Workplace Relations Act 1996) in relation to a contract for services between a constitutional corporation and two or more natural persons comprising a partnership. The Full Court of the Industrial Relations Court of Australia said: “It is not a misuse of language to speak of a partnership performing work under a contract. Many partnerships provide services to clients, the relevant work being carried out wholly or partly by one or more partners or by one or more of their employees. Although s. 127A(4)(d) requires a comparison to be made between the remuneration payable under the contract and the wages that would be payable to an employee doing the same work, this is merely to ensure that a comparison is made between the quantum of work and the quantum of remuneration payable under each of the two arrangements. The comparison is not affected by the circumstances, if it occurs, that partners may share between them the work and the remuneration payable to the independent contractor. We think it is particularly significant that parliament chose not to use the word ‘individual’ in s. 4(1A).”. While there are some useful statements in the passage, it is conceded that the provisions of the State Act are different. The State Act does not make a reference to an “independent contractor”. It uses the words “party” and “person” which are defined in the State Acts Interpretation Act 1954. While providing that a contrary intention in any Act may displace its application (s. 4), s. 36 provides that “party” includes an individual and a corporation and “person” includes an individual and a corporation. It also defines “individual” as meaning “a natural person”. The ordinary meaning attaching to the word “party” in s. 276(3) thus includes an individual and a corporation. There can be no doubt that a significant number of contracts for services (i.e. contracts by independent contractors) are by a husband and wife on the one part and an employer on the other part. To accede to the interpretation sought to be placed upon the provisions by the respondent would disenfranchise a significant number of contractors from access to these provisions. This is beneficial legislation [see B.C. Stubbs v. Austar Entertainment Pty Ltd Print Q0008 (A.I.R.C. 9 April, 1998)] and in Bull v. Attorney-General (NSW) (1913) 17 CLR 370 Isaacs J said: “ . . . if any ambiguity existed, like all such Acts should be construed beneficially . . . This means, of course, not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow.”. The applicant pointed to recent legislative history of this section and its forebears. The Industrial Conciliation and Arbitration Act Amendment Act 1983 inserted s. 123A into the Industrial Conciliation and Arbitration Act 1961. That section restricted relief to a party who was a natural person. Under section 40 of the Industrial Relations Act 1990, relief was restricted to an individual who was a party to a contract. Under s. 290 of the Workplace -- 1 of 2 -- 226 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 November, 2000 Relations Act 1997, the application could be instituted by the party required to provide services. There was no restriction to an individual or natural person. Section 276(3) of the Act appears to simply extend those who can be applicants to include an organisation of employees or employers. That the Legislature intended there to be a removal of the restrictions has some basis. The Honourable the Minister’s Second Reading speech 25.5.99 (Hansard 1827 at 1829-1830), records: “Since the early 1900s, industrial relations legislation has typically regulated standard types of working arrangements. Over the last 10 to 15 years, these working arrangements have substantially altered. The Government has sought to respond to these changes on a range of fronts through extending general conditions of employment to all Queensland workers; providing non-standard workers with access to general conditions under the legislation; as well as providing the commission with an expanded role in reviewing unfair contracts through broadening the circumstances under which a contract may be reviewed. The objects of the Bill have been amended to reflect these changes, in particular by requiring the legislation to recognise and meet the needs of emerging labour markets and work patterns. . . . A further consequence of the growth in non-standard types of employment has been the unparalleled growth in dependent contractors and workers engaged under contract for services in traditional award regulated areas, evidenced in industries such as cleaning, security and building and construction, and in particular regional areas of Queensland.”. The “dependent contractor” was spoken about in the Industrial Relations Taskforce Report, December 1998, as being those who, in terms of the nature of their work, are closer to employees than to independent contractors. Moreover, the word “party” is used in s. 277 where an application for an injunction may be made by “a party to industrial action or an industrial dispute”. It could not be argued I think that “party” in that section would exclude either a corporation or natural persons who have formed a partnership. In Craig Williamson Pty Ltd -v- Barrowcliff (1915) VLR 450, Hodges J said: “I think it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, and that that applies especially to an Act of Parliament, . . .”. The applicant has also referred to the case of Re Dingjan. In that case, applications under s. 127A of the Industrial Relations Act 1988 (Cth) were made by independent contractors who were husband and wife partnerships. An appeal was heard in the High Court but the point that the contractors were partnerships was not taken at any stage of proceedings. The Full Court referred to this phenomenon in Gerrard and said: “. . . sometimes a good point is overlooked, even by experienced counsel. But we do not think that happened here.”. The respondent pointed to the provisions of s. 276(7)(c) of the definition of “unfair contract” and submitted that a comparison is impossible when the entity contracted to provide the services is a corporation or a number of natural persons. However, this objection is answered in the passage in Gerrard cited above. The Federal Act s. 127A(4)(d) is in similar terms to the State Act. There are words of limitation in the State Act which are not present in the Federal Acts. Section 276(6) provides: “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 1966; 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.”. (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) should be read without the word “not”.). The respondent submits that a “person” cannot be a “corporation” because a corporation could never make an application under s. 74 and could never be a public service officer. The submission, as I understand it, is that the word “party” takes its colour from the word “person” and should be read down as well. A similar argument applies to a partnership. But a “person” is not necessarily a “party” and the Act provides for an application to be made by a “party”, not a “person”. The Legislature has not used the same word in ss. (6) as it has in ss. (3). Where a partnership consisting of natural persons makes a contract, ss. (6) can sensibly apply to limit only that application where the earnings of the partnership (or a person in that partnership) exceed the stated amount. Subsection (6) may have no application at all if a corporation happens to be a “party”. It may be that the subsection only has application if the applicant happens to be one of those “persons” identified and who is engaged under a contract of services. Whatever be the true situation, this application has not been lodged by a corporation and what inferences are to be drawn in that case is outside the scope of what I am called upon to decide. It must be understood that a partnership is not a corporation, is not a legal entity and has no independent legal existence. It is constituted by legal entities whether they be natural persons or corporations or a mixture of both. Section 276(3) permits an application to be made by a party to the contract. Graham and Jennifer Braunack constitute one party and I do not agree that the provision should be read down to exclude a partnership, at least where that partnership is constituted by natural persons. Appropriate directions order will issue upon receipt of confirmation that the substantive matter is to go for trial. The Commission orders accordingly. B.J. BLADES, Commissioner. Released: 1 November 2000 Appearances:– Mr M.T. Brady, instructed by Ms A. Petie of Reidy & Tonkin, for the Applicant. Mr J. Murdoch, Instructed by Mr A. Aspromourgos, Livingstones Australia, for the Respondent. -- 2 of 2 --