Borghero v Mark Lyle Nominees Pty Ltd [2000] ICQ 9 (2000) 163 QGIG 354

354 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 24 March, 2000 ######################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(2) – appeal against decision of industrial magistrate Victor Borghero AND Mark Lyle Nominees Pty Ltd (C75 of 1999) PRESIDENT HALL 13 March 2000 DECISION Victor Borghero, a public officer within the meaning of the Justices Act 1886 and an Inspector duly appointed under the provisions of the Workplace Relations Act 1997, made two complaints under s. 445 of the Workplace Relations Act 1997 against the respondent. Each complaint alleged that the respondent had committed offences against the Workplace Relations Act 1997 in that it had failed to pay wages payable under an industrial instrument, namely the Contract Cleaning Industry Award – State, to an employee. The allegations contained in each of the complaints included a failure to pay any wages at all for approximately three weeks. This appeal relates to one of those complaints, viz, the complaint relating to Milovan Knezevic. The matters came before the Industrial Magistrate at Holland Park on 3 March 1999. It is not disputed that Mr Borghero had locus standi to make the complaints nor that the Industrial Magistrate had jurisdiction to hear the complaints. Without hearing evidence, the Industrial Magistrate ordered that Mr Borghero be restrained from further proceeding on the complaints before the court. The order flowed from a finding that pressing the complaints in the Industrial Magistrates Court involved an abuse of process. That finding was founded on a conclusion – (a) that the matters involved complex questions of law, and in particular issues as to whether the engagement to which the complaints related was subject to a Federal or to the State award, and it was an abuse to try such issues in a court of summary jurisdiction when other better equipped tribunals were available; and -- 1 of 2 -- 24 March, 2000 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 355 (b) that the matters were in essence an argument about which of the Federal and the State award applied and it was an abuse of process to agitate that matter in a criminal proceeding which might lead to the respondent’s conviction when civil proceedings were available. The submission of the appellant is that the Industrial Magistrate erred in law in that His Worship failed to take into account matters which were relevant and, in consequence of misapprehension, took into account a matter which was not relevant. As to the first issue, the Workplace Relations Act 1997 provided that wages alleged to be outstanding might be recovered by civil proceedings under s. 423 or by way of criminal proceedings under s. 445. In the case of the criminal proceedings, provision was made for an order to be issued requiring payment of wages found to be unpaid in addition to the imposition of a penalty. Provision was also made for the issue of an order requiring payment of wages found to be unpaid where the prosecution failed, eg where the complainant succeeded on the balance of probabilities, but did not prove the case beyond reasonable doubt. Whether civil or criminal proceedings were instituted, the proceedings were to be instituted in the Industrial Magistrates Court. It is true that the jurisdiction vested in the Industrial Magistrates Court (by s. 310) was not exclusive, see s. 311. The unpaid worker might presumably have recovered the outstanding wages as a debt in proceedings before a Stipendiary Magistrate exercising jurisdiction under the Magistrates Courts Act 1921. However, the Industrial Magistrates Court was the inferior court brought into existence by the Workplace Relations Act 1997 (and its precursors) for the purpose of determining such cases as a specialist jurisdiction. Further, notwithstanding the ingenuity with which Ms Prior has argued the respondent’s case, it is not immediately obvious what the alternative jurisdiction in which the present complainant might have mounted a case might be. Accepting without deciding that by involvement of the Minister for Employment, Training and Industrial Relations the matter of which award applied might have been taken before the Queensland Industrial Relations Commission on a dispute notification, such a proceeding could not lead to the making of an order that the outstanding wages be paid. At best, any ruling as to the appropriateness of the State award might be relied on in further proceedings in the Industrial Magistrates Court to recover the monies outstanding. And given that on a dispute notification the Commission is exercising arbitral power, the matter of which award applied would not be res judicata, and the decision would not found an issue estoppel. There is the additional consideration that if a public officer such as Mr Borghero forms the view that it is appropriate to proceed by way of criminal proceedings, the Industrial Magistrates Court has exclusive jurisdiction, see ss. 310 and 311. Because of the effluxion of time, the Workplace Relations Act 1997 had been repealed and replaced by the Industrial Relations Act 1999 before the matters came on for hearing. It was a consequence of s. 710(4) of the Industrial Relations Act 1999 that the proceedings were to be carried on and prosecuted as if they had been started under the corresponding provision of the Industrial Relations Act 1999. That advances the matter not at all. Materially, ss. 292 and 293 of the Industrial Relations Act 1999 replicate ss. 310 and 311 of the Workplace Relations Act 1997. Section 666 replicates s. 445. Section 399 replicates s. 423. It must be conceded that as a consequence of s. 278 an employee (and an inspector) now has the opportunity to seek civil recovery in the Queensland Industrial Relations Commission as an alternative to proceeding in the Industrial Magistrates Court, see s. 278. However, that would require withdrawal of the two complaints and institution of fresh proceedings. Put aside the question whether such a withdrawal and re-commencement would itself be an abuse of process, if the inspector continued to be minded to press for a penalty, perseverance with the two existing complaints was the only course available. With respect to the Industrial Magistrate I consider that His Worship underestimated the cardinal role which the Industrial Magistrates Court is intended to discharge under the Industrial Relations Act 1999 and was intended to discharge under the Workplace Relations Act 1997. The second matter may be more shortly dealt with. It was not common ground that the issue between the parties was a bona fide dispute about which was the applicable award. Indeed, having regard to the allegation that no wages at all were paid for a period of three weeks and the circumstance that the proceedings are criminal rather than civil, I rather have the impression that in Mr Borghero’s position the argument about Federal/State coverage is about obfuscation. It is not a matter of overturning an Industrial Magistrate’s finding of fact that there was a bona fide dispute about award coverage. No evidence was led. It was a simple case of His Worship misapprehending the nature of the proceedings before him. It is unnecessary to go the cases about abuse of process to which I have been taken. Neither basis upon which the finding of abuse was based is tenable here, and there are no materials upon which an alternative case might be made. It is the effect of s. 335 of the Industrial Relations Act 1999 that an order for costs cannot be made against the respondent in proceedings such as this. The appeal is allowed. I order that the Order of the Industrial Magistrate restraining the complainant from further proceeding on each of the two complaints made by Mr Borghero be set aside. I remit the matter to the Industrial Magistrates Court at Holland Park and order that it might be heard and determined according to law. Dated this thirteenth day of March, 2000. D.R. HALL, President. Released: 13 March 2000 Appearances:– Mr C. Murdoch instructed by the Crown Solicitor for the appellant. Ms K. Prior of Prior and Associates for the respondent. -- 2 of 2 --