Clift v Watson [1994] QIRC 444 (1994) 146 QGIG 975

[975] The Queensland Government Industrial GazettePUBLISHED BY AUTHORITY pp 45120710CXJ86 Annual Subscription $280 ISSN 0155-9362 Vol. 146] FRIDAY, 26 AUGUST, 1994 [No. 27 QUEE1':SLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1990 s. 506 - application for revocation of authority Colin Duff Clift AND Dudley George Watson (So. B438 of I 993) Cl!ILF INDUSTRIAL COMMISSIONER HALL I I August 1994 Application for Revocation of Authority - Omission to Report Presence - Vexatious and Unreasonable Use of Authority - Capacity to Make Revocation Application - Application Dismissed. DECISION Dudley George Watson of 177 King Street, Charlevillc is a union organiser employed by The Australian Workers· Union of Employees. Queensland. He is now, and was at all material times. the holder of an authority issued pursuant to s. 495 of the Industrial Relations Act 1990. Colin Duff Clift is. in partnership with his son and with his daughter, the o,,11er of a grazing property known as Yandarlo situated approximately 40 km South of the tovmship of Tambo. The partnership has entrusted the management of the property to Mr Clift. The events which I now relate occurred at a shearing shed on Yandarlo at or about 9.00 a.m. on Saturday, 24 July 1993. Shearing was taking place at the shed. The sheep which were then shorn were owned by Mr George Johnson. the owner/operator of an adjoining cattle property. The sheep were "killers". Mr Johnson had generously volunteered to make the cli;J taken from the sheep available to the local gun club for the purpose of raising funds. The sheep were being shorn hy volunteers. Mr Clift had volunteered the use of his shearing shed without expectation of payment. 148803-76 Mr Watson was unaware of the benevolent nature of the activities taking place at the shearing shed. He did know that shearing was taking place. Properly, he elected to investigate the matter. I say properly because it is not lawful to engage employees to shear sheep on a Saturday and authorities are issued under s. 495 for the very purpose of ensuring that the observance of Awards 1s policed. Because difficulties are often experienced in these matters. Mr Watson telephoned the Police station at Tambo and infonned the police service that he would be visiting Yandarlo al or about 9.00 a.m. to make an inspection pursuant to s. 503. The police service responded handsomely When Mr Watson arrived at the gate to Yandarlo he was greeted by two police otlicers from the Tamho Police station. An officer from the Augathella police station arrived shortly thereafter. There was some discussion between Mr Watson and the police officers before the three vehicles proceeded from the gate to the shearing shed. Mr Clift. who was at the time penning sheep at the rear of the shed. noticed the arrival of the vehicles. He immediately walked to the front of the shed by the most convenient route, i.e. a route which did not involve pressing through penned sheep. I le tells me, and I accept, that it took him only 18 to 20 seconds to move to the front of the shed. He there took up a position at a ,,ool press and commenced pressing wool. Mr Watson tells me. and he was not cross examined on the point. that he nodded to Mr Clift. Mr Watson also tells me. and again he was not cross examined on the point. that he made eye contact with Mr Clift. However. no words were spoken between the two gentlemen. Mr Watson did have some conversation with Mr George Johnson. Mr Watson. who at no time attempted to walk around the shed. leil some I 0 to 15 minutes after he arrived. On 20 August 1993 by his agent Warren John Turner Mr Clift filed an application for the revocation of Mr Watson's s. 495 authority. To indicate the nature of the case which was made it is necessary to do no more than reproduce paragraphs ( 4) to ( 6) of the ·'Statement of Facts" - -- 1 of 2 -- 976 QUEENSLAND GOVERNMENT [NDUSTRIAL GAZETTE [26 August, 1994 "(4) The said Dudley Watson remained at the shearing shed for a period of approximately 30 minutes, during which time he made no attempt to notify the said Colin Duff Clift of his presence on h is property, the said Colin Duff Clift being present at the shearing shed during the aforesaid period. (5) The said Dudley Watson failed to comply with section 503(5) of the Industrial Relations Act I 990. (6) The said Dudley Watson exercised his entitlement to en ter in a mauer (sic.) which was unreasonable, vexatious, and calculated to intimidate the said Colin Duff Clift and other persons present at the shearing shed.". The case was advanced under s. 506(a) and (b) which provide that - " If, upon application by an employer, it is proved to the Industrial Commission that an authorised industrial oflicer has - (a) in the case to which s. 503(5) applies - failed to comply with that section; or (b) exercised the officer's emi tlement to enter in an unreasonable or vexatious manner; the Commission may, inter a/ia, revoke the officer's authorisation. Section 503(5) itself provides that - "An au thorised industrial officer who en te rs any place pursuant to authority conferred by this section, forthwith upon such entry and before the officer exercises any authority conferred on the officer by this Act, is to give notice of the officer' s presence to the employer or the employer's representative, and is to produce the otlicer's written authorisation if required.''. I consider that Mr Watson did bring his presence to the not ice of Mr Clift. His arrival at the shed was quite dramatic. The arrival at a comparatively isolated shearing shed of a convoy of three vehicles, two of which are p-0lice vehicles, must be a singular occurrence. Mr Clifl acknowledges that Mr Watson is known 10 him. and admits to having seen Mr Watson so soon as Mr Watson alighted from his vehicle. On any view of the evidence, Mr Watson and Mr Clift stood 6 metres apart fo r IO to 15 minutes. In the absence of cross examination, it is proper that I accept that Mr Watson nodded to Mr Clift and made eye contact with him. Doub tl ess, in the ordinary case, the authorised officer will give notice of his presence to the employer by speaking to the em pl oyer or (less usually) passing to the employer a notice redu ced to writing. But there is nothing to prohibit the giv ing o f notice by conduct and I am loath to read s. 506(a) as pcnnitting revocation of an authority where its holder has failed to go through the farce of introducing him/ herself to a person to whom s/he is well known and who is aware of his/her presence, compare Hazell -v- Parramatta Ci tv ~ (1968) I NSWR 165 at 175- 176 per Isaacs J. In no way do I seek to go behind Mr T urner 's submission. However I could no t help noticing that Mr Clift seemed convinced that because Mr Watson held an authority and because Mr Clift was the (joint) proprietor. Mr Wa ts on was requi red to report to him immediately upon entry to the propert). The Industrial Relations Act I 988 (Cwlth) requires notice to be g ive n to the occupier o f the premises. Under the Queensland Act the obligation is owed to the "employer'·. The current Queensland Act has subst it uted an obligation "to give notice" for the obligation 10 '•i mmediately give notice'' imposed by the Industrial Conciliation and Arbitration Aa 196/, s. 13 6 as amended by the Industrial Conciliatio11 and Arbitra1ion Amendment Act I 9i 5, s. 15. The obliga ti on is. and always was. to give notice, nol to report. As the case went into evidence it became apparent that the rather serious allegation at paragraph (6) of the ·'Statement of Facts" was based not on belligerent behaviour but on the circumstance that Mr Watson, as he freely admits, had it in his mind to initiate proceedings against Mr Clift if he found Mr Clift to be conducting shear ing operations in breach of the Shearing Industry Award - State. To treat such conduct as falling within s. 506(b) would in my view frustrate the purpose of ss. 495 and 503. A key purpose of the Legislative scheme is to enable authorised industrial oflicers to seek ou t wrong doing and take proper steps to remedy it. The commencement of proceedings in the Industrial Magistra te ' s Court in a proper case is, of course. neither un reasonable nor vexatious nor intirn idatory. So far as the faintly argued proposition that Mr \l/atson 's failure to introduce himself though he was on the premises for IO to 15 minutes was in itself vcxati.ous is concerned, I reject it. Doubtless it is a course of conduct which wou ld no t be · recommended by the better texts on etiquette. But Mr Clift, who kn ew Mr Wat son, did not himself make any attempt to initiate a conversation. Given some of the materials which were tendered and which bear upon the relationship between Mr Watson and Mr Clift, I can well understand ,vhy Mr Watson was nol prepared to go further than nodding and making eye contact. I have, hitherto, dealt with the matter on its merits (or rather on its la ck of merits). It is arguable that the matter should not he so dealt with. An ap plication for the revocation of authority under s. 506 may be made only by "an employer". Similarly, the obligation to give notice of one' s presence is an ob ligation to give notice of om: 's presence to "the employer", s. 503(5). The evidence is that Mr Clift was not the employer of anyone at the shearing shed at Yandarlo on Saturday. 24 July 1993. The re were certai nly people on the premises who had agreed to shear sheep and to pcrforn1 other work assoc iated with shearing. But they had a ll done so on the exp licit hasis that they would not be paid. An agreemen t made without consideration is not a contract and, subject to any extension by the tcnns of a particular stat ut e, the re lationship of employer and employee is a contractual relationsh ip. Mr Turner. who appeared for Mr Clift al the trial , meets the argume nt by pointing to the definition of ·•employer'' at s. 5( I). He argues that because from time to time Mr Clift employs casual labour to perfonn the tasks of mustering and lamb marking in cortnection with the conduct of the grazing property, Mr Clift was a "employer'' within paragraph {a) on the basis that he ·'usually employs" or, alternat ively, within paragraph (c) on the basis that he carries on ' ·a calling in which employees are usually employed''. I am sympathetic to the argumen t that at ss. 503(5) and 506 " emp loyer" means a relevant employer. lt would seem to me to be passing strange if an authorised officer who called upon an emp loyer organisation' s Christmas party in order to satisfy him/herself th~t the drink wai te rs were be ing properly remunerat ed was required to attend at every tab le and give notice of h is presence to e very person in the room because each of them (elsewhere) conducted a business in which employees were engaged. The counter argument, of course, is that where a statutory definition, as here, uses the tenns "'means'' and " includes" with some measure of precis ion a tribunal changed with the construction of the statute should not go behind the defin iti on. compare Lamont v Commissioner for Railways ( I 963) 80 WN (NSW) 1242. It must be born in mind that s. 506 confers a discretion which is more than adequate to ensure the protection of an authorised officer who does not compl y wi th s. 503(5) in c.ircum~tances in which it would be pa tently absurd to do so. Because the matter was not fully argued, and because the consequence of the view which I have taken of the merits makes it 26 August, 1994] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE unnecessary to decide the point, it is better that I do not decide the point. Lest the matter go further, and with the view to the avoidance of unnecessary expense, I fom1ally record that I am not satisfied on the ev idence that Mr Cli~ was an "em ployer" within paragraph (a} of the s tatutorv definition and that I am satisfied that Mr Cli fi was an "empl oye/ within paragraph (c) of the statutory definition. It is also my view that if "e mployer'' at ss. 503(5) and 506 means .. relevan t employer", Mr Clift was such an employer. What makes him an employer is paragraph (c) of the statutory de finition. What makes h im relevant is the circumstance that Mr Watson called at the propeny for the purpose. inter ctlia, of investigating Mr Clift' s ac tivities. I dism iss the ap plication. Dated this eleventh day of August. 1994. D.R. HALL, Chief Industrial Commissioner. Appcarances:- Mr W. Turner for Co lin Duff Clift. Mr J. Ludwig for and on beha lf of The Australian Workers' Union of Employees. Queensland for Dudley George Watson. Operative Date : NIA Decision - Application for Revocation of Authority - Dismissed Released: 11 August 1994 11###################################################### 977 -- 2 of 2 --