Re Roundstreet Pty Ltd v John Brown [1987] FCA 13; 18 IR 32 (29 January 1987)

FEDERAL COURT OF AUSTRALIA

Re: ROUNDSTREET PTY. LTD.
And: JOHN BROWN
No. V15 of 1986
Industrial Law
18 IR 32

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Evatt J.
Northrop J.
Keely J.

CATCHWORDS

Industrial Law - Conciliation and Arbitration Act 1904 - appeal from order - whether appellant bound by award - whether properly named as party to award - whether award able to be challenged in Federal Court.

Conciliation and Arbitration Act 1904 s.60(1)

Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 C.L.R. 336

Re Transport Workers' (Transport Commission, Tasmania) Agreement 1947 [1954] HCA 19; (1953) 78 C.A.R. 44, (1954) 91 C.L.R. 159

Commonwealth Steamship Owners Association v. Waterside Workers' Federation of Australia (No. 2) (1963) 5 F.L.R. 103

Clothing and Allied Trades Union of Australia v. Cocks (1968) 12 F.L.R. 138

R. v. Commonwealth Industrial Court Judges; Ex parte Cocks [1968] HCA 86; (1968) 121 C.L.R. 313

R. v. Coldham and others; Ex parte Australian Workers' Union (1983) 49 A.L.R. 259

HEARING

MELBOURNE
29:1:1987

Counsel for Appellant: Mr M.J. Dowling QC and Dr C. Jessup.

Solicitors for Appellant: Messrs. Freehill Hollingdale and Page,
44th Level,
Nauru House,
80 Collins Street,
MELBOURNE VIC 3000

Counsel for Respondent: Mr J.E. Barnard QC AND Mr R. Hinkley.

Soilicitors for Respondent: Messrs. Phillips Fox,
461 Bourke Street,
MELBOURNE VIC 3000

ORDER

The Court orders that the appeal be dismissed.

(Settlement and entry of Orders is dealt with in O.36 of the
Rules of Court.)

DECISION

The question raised by this appeal is whether Roundstreet Pty. Ltd. ("the appellant") was, between 22 May 1981 and 1 March 1983, bound by the Transport Workers' (Passenger Vehicles) Award 1978 ("the 1978 Award"). The 1978 Award was a consent award made under s.28 of the Conciliation and Arbitration Act 1904 ("the Act") in settlement of a dispute between the Transport Workers' Union of Australia ("the T.W.U.") and a number of employers engaged in interstate passenger transport operations. One of the employers named as a party to the 1978 Award was Australian Pacific Tours Pty. Ltd. ("Pacific Tours"). Under sub-section 28(4) of the Act, the 1978 Award is binding on each of the parties to the Award and upon:-

"(c) an employer who is a successor to, or an
assignee or transmittee of, the business of
such a party, including a corporation that has
acquired or taken over the business of such a
party."

On 30 June 1983, Pacific Tours changed its name to Roundstreet Pty. Ltd. and thus the appellant is the successor to Pacific Tours.

2. In March 1985, John Brown ("the respondent"), a member of the T.W.U., filed four applications under s.119 of the Act seeking the imposition of penalties upon the appellant for alleged breaches or non-observances of the terms of the 1978 Award. On 26 April 1985, the Court ordered that the four applications be consolidated and that:-

"The question whether the (appellant) was, between
the 22nd May 1981 and 1st March 1983, bound by (the
1978 Award) be decided separately from all other
questions in the consolidated matters and before
the trial of those other questions."

On 19 March 1986, the Court, constituted by a single Judge, answered that question as follows:-

"Between 22nd May 1981 and 1st March 1983, the
(appellant) was bound by the (1978 Award)."

The appellant has appealed from that order.

3. The issue sought to be raised by the question was whether Pacific Tours had been properly named as a party to the 1978 Award, the appellant contending that it had never been served with the log of claims upon which the 1978 Award had been made and that in any event, no person had been properly authorised to consent to it being named as a party to the 1978 Award.

4. There was a lengthy hearing before the trial Judge. In his reasons for judgment, the learned trial Judge expressed three opinions:-

1. The appellant, even though the respondent to
the applications, carried the legal burden of
proving that Pacific Tours was not a party to
the 1978 Award;

2. that an advocate, not being a member of the
legal profession, appearing for a party in
proceedings before the Conciliation and
Arbitration Commission is taken to have
authority to enter into a settlement on behalf
of that party, unless some limit on his or her
authority has been communicated to the other
side; and

3. that the Court, in all probability, was
prevented by sub-section 60(1) of the Act from
examining whether Pacific Tours was a proper
party to the 1978 Award where, as in this
case, it appeared from the face of the Award
that it was a party to the Award.

In the present case, the learned trial Judge held that he need not decide the third matter because he had gone behind the 1978 Award and found that Pacific Tours was properly named as a party to the 1978 Award. In doing that, he did the very thing which, in our opinion, sub-section 60(1) of the Act prevents him from doing.

5. Having come to that opinion, it is not necessary for us to express an opinion on matters 1 and 2, but it is desirable that some brief comments be made concerning each of them. As far as question 1 is concerned, it must be remembered that the applications were for the imposition of a penalty under s.119 of the Act. Normally, the applicant in proceedings of that kind has the legal burden of proving that the respondent to the proceedings was bound by an award. In the present case, the production of the 1978 Award showing Pacific Tours as being an employer party to that Award and the admission that the appellant was the successor of Pacific Tours, is sufficient to prove that the appellant is bound by the 1978 Award. The shifting onus to rebut that conclusion then rested on the appellant. For instance, evidence that the 1978 Award had been superseded by another award before 22 May 1981, if accepted, would have been sufficient to establish that the appellant was not, between 22 May 1981 and 1 March 1983, bound by the 1978 Award. In the present case, and contrary to the provisions of sub-section 60(1) of the Act, much evidence was led in an attempt to prove that the appellant was in law not a party to and thus not bound by the 1978 Award. If it were relevant, that would not place the legal burden of proof upon the appellant. A consideration of who carried the legal onus of proof in other types of proceedings is beside the point. In proceedings under s.119 of the Act, the legal burden remained with the applicant in those proceedings. The degree of satisfaction required to satisfy that onus is to be found by applying the principles enunciated in Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336 per Dixon J. at pp 360-363. At the end of all the evidence, there had to be considered the provisions of the Award, the naming of Pacific Tours as an employer party to the Award, the fact that Pacific Tours and the appellant had for many years observed the terms of the 1978 Award. All these facts support a finding that the appellant was bound by the 1978 Award. It was not necessary for the respondent to lead any further evidence. Very cogent evidence would be needed to negative the conclusion that the appellant was bound by the 1978 Award.

6. Likewise, the second question should not have been considered. The opinion expressed on that question formed part of the reasoning supporting the finding that the appellant had not discharged the onus resting upon it in proving it was not bound by the 1978 Award. Sub-section 60(1) prevents this question arising on the facts of this appeal. No final opinion is expressed on this question but a warning is given that a principle of law applicable in legal proceedings before a Court and with respect to members of the legal profession bound by the ethics of their profession and subject to disciplinary action by being members of professional bodies, does not necessarily have any application with respect to persons appearing before tribunals, not being Courts, and who, prima facie, are not members of the legal profession and thus not subject to the disciplinary procedures of professional bodies.

7. As stated earlier, it is our opinion that sub-section 60(1) of the Act prevents this Court in these proceedings from considering whether Pacific Tours was validly a party to the 1978 Award. We agree with the reasons of Keely J. with respect to this question and have nothing further to say.

8. We would dismiss the appeal.

This is an appeal from a judgment of a single judge of the court (Gray J.). John Brown filed four applications under s. 119 of the Conciliation and Arbitration Act 1904 (the Act) for the imposition of penalties upon Roundstreet Pty. Ltd. (the appellant) for alleged breaches or non-observances of terms of the Transport Workers' (Passenger Vehicles) Award 1978 (the award). On 26 April 1985 the court ordered that each of the four matters be consolidated and that the question whether the respondent (the present appellant) was between 22 May 1981 and 1 March 1983 bound by the award should be decided separately from all other questions in the consolidated matters and before the trial of those other questions.

2. In its points of defence the appellant admitted that Australian Pacific Tours Pty. Ltd. was between 22 May 1981 and 1 March 1983 a named respondent to the award and that that company changed its name to Roundstreet Pty. Ltd. on 30 June 1983; however, it contended that the company had been invalidly named as a respondent to the award because it had not been "a party to any industrial dispute in settlement or part settlement of which" the award had been made.

3. In his judgment Gray J. ordered that the preliminary question be answered in the following terms: "Between 22nd May 1981 and 1st March 1983, the respondent was bound by the Transport Workers' (Passenger Vehicles) Award 1978". Leave to appeal against his Honour's judgment was given on 2 May 1986.

4. Various submissions relating to the appellant's contention that the company had been invalidly named as a respondent to the award were advanced both before Gray J. and before the court on appeal. The respondent to the appeal submitted that it was not open to the Federal Court "to determine whether or not the appellant was validly bound by (the award)". That submission was based upon s. 60(1) of the Act which provides as follows:-

"Subject to this Act, an award (including an
award made on appeal)-
(a) is final and conclusive;

(b) shall not be challenged, appealed
against, reviewed, quashed or called in
question in any court; and

(c) is not subject to prohibition, mandamus
or injunction in any court on any
account."

5. The effect of that section, and of an earlier section, which was different in form but not in any way that is material for present purposes, has been considered in a number of reported decisions during the last 30 years.

6. In 1953 the Commonwealth Court of Conciliation and Arbitration (Kirby, Dunphy and Morgan JJ.) in The Transport Workers' (Transport Commission, Tasmania) Agreement, 1947 (1953) 78 CAR 44 (at 46) said:

"Section 16(1) of the Act provides that:-

"Subject to this Act, an award or order
of a Conciliation Commissioner shall not
be challenged, appealed against,
reviewed, quashed or called in question,
or be subject to prohibition, mandamus or
injunction in any Court on any account
whatever."

....

Mr. Eggleston argued, on the basis of the
decision of the Privy Council in Colonial
Bank of Australia and another v Willan
(1874) LR PCA 417 that it is within the
power and duty of this Court to do so, in
spite of section 16 (1) of the Conciliation
and Arbitration Act.

The question is not without difficulty, but
we have formed the opinion that the
principles set out in that case, which
relate to the power of a Court to deal on a
prerogative writ with a decision of an
inferior Court, do not apply to this Court
when considering an award made by a
Conciliation Commissioner, at least when on
the face of it, it is made within
jurisdiction. ... We therefore are of the
opinion that we cannot question whether the
dispute as a result of which the
Conciliation Commissioner certified the
agreement was of an interstate nature or
not, and so consider whether or not its
certification was within the Conciliation
Commissioner's power." (emphasis added)

7. The High Court made an order absolute ((1954) [1954] HCA 19; 91 CLR 159) prohibiting further proceedings upon the agreement and upon the order of variation made by their Honours. Dixon CJ., Webb, Fullagar, Kitto and Taylor JJ. (at 173) said that their Honours had decided that they were "precluded by s. 16(1) of the Act from questioning 'whether the dispute as a result of which the conciliation commissioner certified the agreement was of an interstate character or not'", but in my opinion neither said nor implied that their Honours had erred in law in so deciding.

8. Of course, s. 16(1) could not preclude the High Court from considering that question because of the jurisdiction conferred upon it by s. 75(v) of the Constitution. The High Court referred to the necessary limitations upon s. 16(1) of the Act, which it said (at 175) was:

"... incapable of protecting or preserving
orders made not only in excess of the powers
conferred by the Act, but also in excess of
the capacity of the legislature to authorize
the making of awards and orders in relation
to industrial matters."

9. In 1963, in Commonwealth Steamship Owners Association v Waterside Workers Federation of Australia (No. 2) 5 FLR 103 (at 105) Spicer CJ. formed the same opinion as to the effect of the section, saying that, by reason of s. 60(1) of the Act, the court "should, I think, treat par. (b) as a valid provision of the award".

10. Consistently with those earlier opinions of Spicer CJ. and of the Commonwealth Court of Conciliation and Arbitration, the Commonwealth Industrial Court in Clothing and Allied Trades Union of Australia v Cocks and others (1968) 12 FLR 138 held that, because of the provisions of s. 60 of the Act, it could not consider whether a clause in an award was valid - at least not where the award was "in proper form". Dunphy and Smithers JJ. (at 154) said:

"Invalidity is suggested on the ground that
the subject matter of that clause is not an
industrial matter ... We think this Court
must have regard to s. 60 of the Act ...

It does not appear possible to treat these
words as referring only to awards lawfully
made within the jurisdiction of the
Commission. To do so would ignore the clear
intent of the Act to exempt an award made in
fact, even if beyond jurisdiction, from
being called in question in this Court. If
an intended award were so completely beyond
any possible jurisdiction that it could not
be reasonably said to be an award, it might
be arguable that there was ground for
excluding that "award" from the protection
of the section. But that is not this case.
This award is in proper form."

The dictum of Spicer C.J., which has been quoted earlier, was cited by their Honours (at 155) and by Joske J. (at 163) who, in separate reasons for judgment, reached the same conclusion.

11. In prohibition proceedings in respect of the order made by the Commonwealth Industrial Court in that case, the High Court held that the relevant sub-clause of the award was invalid (R. v Commonwealth Industrial Court Judges; ex parte Cocks [1968] HCA 86; (1968) 121 CLR 313). Barwick CJ., Taylor and Owen JJ., having decided "the substantive point in the case" (i.e. that the sub-clause was invalid), said (at 321-322):

"... the Industrial Court did not decide
that the clause was valid; it assumed that
it was debarred by s. 60 of the Act from
pronouncing upon the question. Whether this
was or was not a correct assumption was not
argued before us but, as at present advised,
we are inclined to the view that it was not.

....

It is enough to say that if the Industrial
Court had pronounced in favour of the
sub-clause we would have no doubt that it
would be incumbent on this Court, if it
considered the provision to be beyond the
authority of the Commission, to hold that
the Industrial Court had acted without
jurisdiction."

12. It appears from that passage that the High Court did not hear any argument as to whether the Commonwealth Industrial Court was correct in assuming that it was debarred by s. 60 of the Act from pronouncing upon the validity of the clause. Barwick CJ., Taylor and Owen JJ. were "as at present advised, ... inclined to the view that it was not" a correct assumption. That tentative view, however, referred to a clause which Kitto J. said (at 325) "on its face travels into an area in which the Commission had no power to tread ..." (emphasis added).

13. On my reading of the reasons for judgment, none of the Justices of the High Court in that case expressed even a tentative view that the Commonwealth Industrial Court was not debarred from considering the validity of a provision in an award which on its face appears to be within power. The following passage from the reasons for judgment of Kitto J. (at 325-326) is apposite:

"The mode of reconciliation ... is to
interpret s. 60 as validating, so far as it
can validate it constitutionally, any award
provision which is outside the power of the
Commission if on its face it appears to be
within power and is in fact a bona fide
attempt to act in the course of the relevant
authority. ... cl. 30(1)(a) on its face
travels into an area in which the Commission
had no power to tread, ... pertaining only
to relations between employers and persons
who are not their employees. ... For this
reason s. 60 could not constitutionally have
an operation which would validate cl.
30(1)(a) in its application in respect of
non-employees, even if on its true
construction it affected to do so. Equally
s. 119 considered by itself, being construed
so as to be constitutionally valid, cannot
be interpreted to mean that a penalty may be
imposed for a breach of something which,
though appearing as a term of an award, is
not one that in its nature is capable of
being included as part of the settlement of
an industrial dispute in the constitutional
sense of the expression. (emphases added)

I am therefore of opinion that the learned
judges of the Commonwealth Industrial Court
were not precluded by the provisions of s.
60 or by any other consideration from
investigating the question whether the
application they were being asked to give to
cl. 30(1)(a) was one which carried it beyond
the authority of the Commission under the
Act and beyond the power of the Parliament
to authorize."

In my opinion Kitto J., in saying (at 326) that the Commonwealth Industrial Court was "not precluded by the provisions of s. 60", was referring only to a situation where the award provision "on its face travels into an area in which the Commission had no power to tread" (see p 325).

14. In the present appeal, the award provision that the
appellant is bound by the terms of the award is plainly not such a provision. On the contrary, as Mason ACJ. and Brennan J. said in R. v Coldham and Ors; ex parte Australian Workers' Union [1983] HCA 35; (1983) 153 CLR 415 at 418, the "three conditions are fulfilled '... namely that the purported exercise is a bona fide attempt to exercise the power, it relates to the subject matter of the legislation, and it is reasonably capable of being referred to the power (i.e. does not on its face go beyond the power) ...' to use the words of Kitto J. in R. v Commonwealth Conciliation and Arbitration Commission; ex parte Amalgamated Engineering Union (Australian Section) [1967] HCA 47; (1967) 118 CLR 219 at 252-3". In my opinion s. 60(1) of the Act provides that in those circumstances such a provision cannot be challenged, nor can its validity be called in question in this court. That opinion is consonant with the authorities to which reference has been made; the appellant's counsel have failed to persuade me that the High Court has said anything to the contrary in Cock's case (supra).

15. Because of the original jurisdiction conferred upon the High Court by s. 75(v) of the Constitution to grant a writ of prohibition, the appellant is not left without a remedy; the burden of proof would fall upon the appellant if it brought such a proceeding. In my opinion s. 60(1) of the Act intends that, subject to such a proceeding in the High Court, or an appeal or an application for variation under the Act, the award shall not be challenged or called in question in this court or in any other court.

16. On the material in this case, s. 60 precluded Gray J. from giving any other answer to the preliminary question and accordingly the appeal must be dismissed. Having reached that conclusion, it is not necessary to consider the other submissions which have been advanced, including the written submissions filed by the parties after the hearing of this appeal, and in my opinion it is undesirable to express an opinion on them.