Torres Strait Island Regional Council v McIlroy-Ranga
[2023] ICQ 18
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- Torres Strait Island Regional Council v McIlroy-Ranga[2023] ICQ 18
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Torres Strait Island Regional Council v McIlroy-Ranga[2023] ICQ 18
Torres Strait Island Regional Council v McIlroy-Ranga[2023] ICQ 18
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Torres Strait Island Regional Council v McIlroy-Ranga [2023] ICQ 018 |
PARTIES: | TORRES STRAIT ISLAND REGIONAL COUNCIL (appellant) v LUKE ASHLEY McILROY-RANGA (respondent) |
FILE NO: | C/2023/8 |
PROCEEDING: | Appeal |
DELIVERED ON: | 14 August 2023 |
HEARING DATE: | 4 August 2023 |
MEMBER: | Davis J, President |
ORDERS: |
|
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – GENERAL EMPLOYMENT CONDITIONS – ANNUAL LEAVE – ENTITLEMENT TO ON TERMINATION – where the respondent was employed by the appellant – where after an anniversary of the respondent’s employment the appellant directed him to attend an independent medical examination before returning to work – where the appellant directed the respondent that he was not required to return to active duty until notified – where the respondent’s employment was later terminated – where the Industrial Relations Act 2016 entitles the respondent to proportionate payment of a part year of service over which he “worked” – whether the respondent “worked” over the relevant period Industrial Relations Act 1999, s 71, s 71EH Industrial Relations Act 2016, s 8, s 30, s 31, s 32, s 38, s 81, s 85, s 88, s 93, s 95, s 117, s 134, s 271, s 557 |
CASES: | Byrne v Australian Airlines Ltd (1995) 185 CLR 410, cited Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1, followed Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389, cited Community and Public Sector Union, NSW Branch v Northcott Supported Living Ltd [2021] FCA 8, cited Ex parte McLean (1930) 43 CLR 472, cited McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633, followed Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17, cited Murphy v Farmer (1988) 165 CLR 19, followed Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, cited R v A2 (2019) 269 CLR 507, followed Transport Workers’ Union of Australia v Jetstar Services Pty Ltd [2017] FWC 2535, cited Visy Paper Pty Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 1, cited Warramunda Village Inc v Pryde (2002) 116 FCR 58, cited |
COUNSEL: | C Mossman (Solicitor) for the appellant N Henderson (Industrial Advocate) for the respondent |
SOLICITORS: | Wotton + Kearney Lawyers for the appellant Queensland Services, Industrial Union of Employees for the respondent |
- [1]The appellant, the Torres Strait Island Regional Council, is a local authority. It appeals a decision of the Queensland Industrial Relations Commission (QIRC) whereby it was ordered to pay the respondent, Mr McIlroy-Ranga, an amount for annual leave entitlements upon termination of his employment.
Background
- [2]The Council employed Mr McIlroy-Ranga on 12 November 2018. His employment was governed by the Industrial Relations Act 2016 (the 2016 IR Act) and the Torres Strait Island Regional Council Certified Agreement 2021 (the certified agreement).
- [3]On 13 May 2022, the Council terminated Mr McIlroy-Ranga’s employment.
- [4]There is no dispute that annual leave which accrued to 12 November 2021 is payable to Mr McIlroy-Ranga and during the hearing I was informed that it has now been paid.
- [5]What is in dispute is any entitlement to payment for annual leave for the period 12 November 2021 to 13 May 2022 (the relevant period).
- [6]Over the relevant period, Mr McIlroy-Ranga was either on paid annual or personal leave or was home from work on the direction of the Council. He did not therefore physically perform any work pursuant to his contract of employment over the relevant period.
Statutory and other provisions
- [7]Terms of employment are derived from various sources, including any industrial instruments and any relevant legislation.[1]
- [8]The 2016 IR Act, by Chapter 2, imposes various conditions of employment in relation to employees identified in s 8. There is no doubt that Mr McIlroy-Ranga is such an employee.
- [9]Division 5 of Part 3 of Chapter 2 of the 2016 IR Act (Division 5) concerns annual leave. Relevantly, ss 30, 31, 32 and 38 provide:
“30 Application of subdivision
This subdivision does not apply to—
- casual employees; or
- pieceworkers; or
- school-based apprentices or trainees.
31 Entitlement
- For each completed year of employment with an employer, an employee is entitled to—
- if the employee is not a shift worker—at least 4 weeks annual leave; or
- if the employee is a shift worker—at least 5 weeks annual leave.
- Annual leave is exclusive of a public holiday that falls during the leave.
- However, if an employee is entitled to additional annual leave as compensation for working on a particular public holiday, annual leave is inclusive of the particular public holiday.
- Annual leave accumulates.
- This section does not confer an entitlement or an additional entitlement in relation to employment before 4 June 1999.
- In this section—
shift worker means an employee who—
- is employed in a calling in which shifts are worked 24 hours a day, 7 days a week; and
- works a rotating roster that includes each of the shifts.
32 Working out completed year of employment
- This section applies for working out a completed year of employment for section 31.
- The following periods when an employee is absent without pay are not to be taken into account—
- a period of more than 3 months when an employee is absent with the employer’s approval;
- a period when an employee is absent without the employer’s approval, unless the employee is absent for not more than 3 months because of illness or injury that is certified by a doctor.
33 When annual leave may be taken
- An employee and employer may agree when the employee is to take annual leave.
- The employer must not unreasonably refuse to agree when the employee is to take the leave.
- If the employee and employer can not agree, the employer—
- may decide when the employee is to take leave; and
- must give the employee at least 8 weeks written notice of the starting date of the leave.
- An employee and employer may agree that the employee take all or any part of the employee’s annual leave before becoming entitled to it.
- If the employee takes leave before becoming entitled to it, the employee is only entitled, at the end of the completed year of employment, to the balance of the leave that would be due at the end of the year. …
38 Payment for annual leave on termination of employment
- This section applies if an employee’s employment is terminated by the employee or employer.
- If the employee has not taken all the annual leave the employee is entitled to, the employee is presumed to have taken the leave from the day the termination takes effect (the termination day).
- The employer must pay the employee for the annual leave not taken, including—
- any public holiday during the period the employee is presumed to have taken the leave; and
- any annual leave loading the employee is entitled to under section 36.
- If the employee has worked part of a year, the employer must pay the employee the proportionate annual leave for the part of the year the employee worked, including any annual leave loading the employee is entitled to under section 36.
- The employer must pay the employee at least the ordinary rate being paid to the employee immediately before the termination day, unless an applicable industrial instrument states otherwise.” (emphasis added)
- [10]The certified agreement provides as follows:
“6.1.1 Employees will be entitled to six (6) weeks Annual Leave per year of service comprising:
a) four (4) weeks of Annual Leave prescribed by the Queensland Employment Standards (QES); and
b) an additional two (2) weeks leave in recognition of the remote location of the service area, various cultural events that occur during the year and in lieu of payment of specific Allowances under the Award as specified in clause 6.1.5 of this Agreement.”
General observations about Division 5
- [11]
- [12]Sections 33(4) and (5) provide some flexibility. An employee, where there is an agreement with the employer, may take annual leave before an anniversary of his employment: “before becoming entitled to [annual leave]”.[5] The leave taken in this way is later adjusted against any entitlement. What is envisaged is that the employee will take leave as if it had accrued.
- [13]Section 38 creates an exception to the position that annual leave only crystalises upon the anniversary of an employee’s employment. Section 38 operates so that when completion of a full year of employment is interrupted by termination, the employee becomes entitled to a proportion of the annual leave to which the employee would have become entitled had the employee’s service not been interrupted by the termination.
- [14]By s 38:
- an entitlement to a payment arises if the employee has “worked part of a year”;[6]
- the employee’s employment has been terminated by either party;[7]
- the entitlement in those circumstances is to a payment proportionate to “the part of the year the employee worked”.[8]
- [15]Section 38 assumes that, but for the termination, annual leave would become payable on the next anniversary of the employee’s employment. Section 38 does not independently prescribe what that entitlement would be. Section 38 only provides for payment of a proportion of the annual leave. That entitlement which would have arisen but for the termination of employment is established by reference to other sections, namely ss 31 and 32.
- [16]Section 32 concerns the calculation of a “completed year of employment”. It does not list all components which are taken into account. It just identifies those that aren’t.
- [17]For the purposes of s 31, when read with s 32:
- a “completed year of employment” is simply the expiration of a year of time employed; but
- after deduction of the two periods identified by s 32(2)(a) and (b) which both concern periods exceeding three months absence without pay; and
- by inference, any other period of absence is not to be deducted from the calculation of the “year of employment”.
The real issue
- [18]There is no factual dispute between the parties.
- [19]The certified agreement contains clause 6.1.1 which appears in paragraph [10] of these reasons. Other clauses are relevant to annual leave but were not referred to in the outlines of argument or oral argument on the appeal and can be ignored.
- [20]Section 31 of the 2016 IR Act provides for minimum periods of annual leave. The parties have conducted the appeal on the basis that the certified agreement sets the period of annual leave at six weeks and the entitlement to that leave (or a proportion thereof) is governed by the provisions of the 2016 IR Act.
- [21]The parties both accept that entitlement to leave arises upon each anniversary of the commencement of employment; 12 November each year. Both parties accept that s 38 is an exception to that general position. The dispute is that:
- the Council unsuccessfully submitted to the QIRC and now submits on appeal that s 38 only gives a right to annual leave for part of a year upon termination if the employee has physically worked during that period in the sense of discharging duties;
- Mr McIlroy-Ranga successfully submitted to the QIRC and maintains on appeal that he was employed over the relevant period and is therefore entitled to payment upon termination. In other words, Mr McIlroy-Ranga’s position is that “worked”, as it appears in s 38(4) is relevantly synonymous with “employed”.
- [22]Ultimately, the question is whether Mr McIlroy-Ranga “worked” in the relevant period when he was absent from work and subject to the directions given in a letter sent by the Council to him on 18 January 2022, the text of which appears at paragraph [44] of these reasons.
- [23]Resolution of the dispute turns upon a proper construction of various provisions of the 2016 IR Act. Unquestionably, if the Council establishes its position on appeal, it will have shown an error of law by the QIRC.[9]
Consideration
- [24]Various authorities were cited both to the QIRC and this Court as to the relevant principles of statutory interpretation.[10]
- [25]
“32 The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable,[12] has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete.[13] This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.[14]
33 Consideration of the context for the provision is undertaken at the first stage of the process of construction.[15] Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy.[16] ‘Mischief’ is an old expression.[17] It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied.[18] The mischief may point most clearly to what it is that the statute seeks to achieve.
34 This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction. These considerations were emphasised in the decisions of this Court upon which the Court of Criminal Appeal placed some weight.
35 The joint judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue[19] rejected an approach which paid no regard to the words of the provision and sought to apply the general purpose of the statute, to raise revenue, to derive a very different meaning from that which could be drawn from the terms of the provision. The general purpose said nothing meaningful about the provision, the text of which clearly enough conveyed its intended operation.[20] Similarly, in Saeed v Minister for Immigration and Citizenship[21] the court below was held to have failed to consider the actual terms of the section. A general purpose of the statute, to address shortcomings identified in an earlier decision of this Court, was not as useful as the intention revealed by the terms of the statute itself. In Baini v The Queen,[22] it was necessary to reiterate that the question of whether there had been a “substantial miscarriage of justice” within the meaning of the relevant provision required consideration of the text of the provision, not resort to paraphrases of the statutory language in extrinsic materials, other cases and different legislation.
36 These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision.
37 None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed.[23] They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd,[24] that in a particular case, “if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance”. When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning.[25] A construction which promotes the purpose of a statute is to be preferred[26].”[27]
- [26]The Council points to some relevant legislative history. The 2016 IR Act repealed the Industrial Relations Act 1999 (the 1999 IR Act). The 1999 IR Act provided for annual leave and s 71 was the equivalent of s 38 of the 2016 IR Act. Section 71EH provides provided:
“71EH Payment for annual leave on termination of employment
- This section applies if an employee’s employment is terminated by the employee or employer.
- If the employee has not taken all the annual leave the employee is entitled to, the employee is presumed to have taken the leave from the day the termination takes effect (the termination day).
- The employer must immediately pay the employee for the annual leave not taken, including any public holiday during the period the employee is presumed to have taken the leave.
- If the employee has been employed for less than 1 year, the employer must pay the employee proportionate annual leave for the period.
- The employer must pay the employee at least the ordinary rate being paid to the employee immediately before the termination day, unless a modern industrial instrument states otherwise.” (emphasis added)
- [27]Section 71EH(4) of the 1999 IR Act is in similar terms to s 38(4) of the 2016 IR Act except that the 1999 IR Act provides for payment where the employee “has been employed” for part of a year rather than “has worked” for part of the year. The Council submits that this is significant as showing a deliberate legislative intention to make performance of work a condition precedent to entitlement under s 38(4) of the 2016 IR Act.
- [28]The Council also refers to various provisions of the 2016 IR Act where the term “worked” refers to actual personal exertion.
- [29]For example, s 81 provides:
“81 Interruption of parental leave by return to work
- An employee and employer may agree that the employee break the period of parental leave by returning to work for the employer, whether on a full-time, part-time or casual basis.
- The period of parental leave can not be extended by the return to work beyond the maximum period of parental leave under section 62.”
- [30]As can be seen, s 81 concerns parental leave. The notion of “returning to work” is, clearly enough, a reference to returning to the workplace where “work” in the sense of an actual fulfilment of duties is performed.
- [31]Section 88 of the 2016 IR Act also concerns a return to work after parental leave, special maternity leave or sick leave under s 85. The notion of returning to work under s 88 is similar to that under s 81.
- [32]Section 117 of the 2016 IR Act concerns payment for work done on a public holiday. Section 117 is in these terms:
“117 Payment for public holiday
- Subsection (2) applies if—
- under this part, an employee is absent from employment on a day, or part of a day, that is a public holiday; and
- the employee would ordinarily have been required to work on the day or the part of the day.
- The employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work on the day or the part of the day.
- An employee, while employed by the same employer, is only entitled to be paid under subsection (2) for a show holiday once in each calendar year.
- If an employee does work on a public holiday, the employer must pay the employee—
- if an applicable industrial instrument applies to the employee—the penalty rates provided for under the instrument; or
- otherwise—at the rate of pay that would be paid to the employee if the public holiday was not a public holiday.
- In this section—
base rate of pay means the rate of pay payable to the employee for the employee’s ordinary hours of work, but not including any of the following—
- incentive-based payments and bonuses;
- loadings;
- monetary allowances;
- overtime or penalty rates;
- any other separately identifiable amounts.”
- [33]The notion of doing “work on a public holiday” is clearly a reference to working in the sense of performing duties pursuant to the employment.
- [34]Section 271 is in these terms:
“271 Right to refuse work if imminent health or safety risk
This Act does not prevent an employee from refusing to perform work if—
- the refusal is based on a reasonable concern by the employee about an imminent risk to the employee’s health or safety; and
- the employee does not unreasonably contravene a direction of the employee’s employer to perform other available work (whether at the same or another workplace) that is safe and appropriate for the employee to perform.”
- [35]Section 271 vests a right in the employee in certain circumstances to refuse to perform “work” in the sense of fulfilling duties pursuant to the contract of employment.
- [36]
- [37]The parties have cited various decisions where the term “work” has been considered.[30] These are of little assistance. All the cases consider the term in the context of the legislative provisions then under consideration.
- [38]Mr McIlroy-Ranga relies on s 134 of the 2016 IR Act. That provides:
“134 Continuity of service—generally
- Service with a partnership and an employer who was, or becomes, a member of the partnership is taken to be continuous service with the same employer.
- An employee’s continuity of service with an employer is not broken if the employee’s service is temporarily lent or let on hire by the employer to another employer.
- An employee’s continuity of service with an employer is not broken by an absence, including through illness or injury—
- on paid leave approved by the employer; or
- on unpaid leave approved by the employer.
- An employee’s continuity of service with an employer is not broken if—
- the employee’s employment is terminated by the employer or employee because of illness or injury; and
- the employer re-employs the employee; and
- the employee has not been employed in a calling, whether on the employee’s own account or as an employee, between the termination and the re-employment.
- An employee’s continuity of service with an employer is not broken if—
- the employee’s employment is terminated by the employer or employee; and
- the employer re-employs the employee within 3 months after the termination.
- An employee’s continuity of service with an employer is not broken if—
- the employee’s employment is interrupted or terminated by the employer with intent to avoid an obligation under this part, an applicable industrial instrument or contract of employment; or
- the employee’s employment is interrupted or terminated by the employer as a direct or indirect result of an industrial dispute, and the employer re-employs the employee.
- An employee’s continuity of service is not broken if—
- the employee’s employment is interrupted or terminated by the employer because of slackness of trade or business; and
- the employer re-employs the employee.
- Service with a corporation and any of the corporation’s subsidiaries is taken to be continuous service with the same employer.
- However, a period for which the employee is away from work under subsection (3)(b), (4), (5), (6)(b) or (7) is not service under this part unless—
- this Act or an applicable industrial instrument provides otherwise; or
- the commission directs otherwise.
- In this section—
subsidiary has the meaning given by the Corporations Act.
terminate includes stand down.”
- [39]The section refers to “continuity of service”. Section 134 does not assist in the construction of the term “worked” in s 38(4).
- [40]Extrinsic evidence may form part of the context against which a provision is construed. Here, there is no explanatory memorandum or other evidence explaining why, when s 71EH of the 1999 IR Act was re-enacted as s 38 of the 2016 IR Act, there was a change in terminology in s 38(4). The fact that there is no explanation takes the matter nowhere.
- [41]In my view, the QIRC was correct to find that s 38(4) entitled Mr McIlroy-Ranga to a proportion of annual leave with loading pursuant to s 38(4) of the 2016 IR Act.
- [42]Even though Mr McIlroy-Ranga did not perform physical work over the relevant period, he:
- was employed by the Council;
- was subject to his employment terms and conditions; and
- was subject to direction by the Council.
- [43]He could have been directed to attend his usual place of work and perform duties.
- [44]This is made clear from a letter from the Council to Mr McIlroy-Ranga dated 18 January 2022. That letter was sent in response to an email from Mr McIlroy-Ranga. The letter of 18 January 2022, states:
- “1.Our client has received correspondence from Mr Ranga that he proposes to return to work on 21 January 2022.
- 2.In that email, your client states:
a) He is apprehensive and concerned about returning to the workplace.
b) He requires a return-to-work programme and a WHS psychosocial risk assessment to ensure, as far as practicable, his health and safety in the workplace.
- 3.To allow our client to properly prepare Mr Ranga’s requested return to work programme and risk assessment and to ensure that your client can perform the inherent requirements of his job without risk to his health and safety, our client will require Mr Ranga to attend an Independent Medical Examination (IME) by a medical practitioner with relevant qualifications and experience.
- 4.Mr Ranga will not be required to return to active duty from 21 January 2022 until such time as further notified by our client, which will be after Mr Ranga has participated in an IME and the risk assessment has been completed.
- 5.Mr Ranga will be on normal pay during this period, unless otherwise notified by our client.
- 6.We will revert to you shortly with the details for Mr Ranga’s attendance at the IME.
- 7.In the meantime, if you have any queries, please do not hesitate to contact us.”
- [45]It can be seen:
- the Council is asserting a right to direct Mr McIlroy-Ranga to attend an independent medical examination;[31]
- the Council is asserting a right to require Mr McIlroy-Ranga to return to active duty when “notified”;[32]
- Mr McIlroy-Ranga is not absent without pay and, in particular, does not fall within either of the exceptions in s 32(2) of the 2016 IR Act.
- [46]The Council submits that it is significant that ss 31, 32 and 38(1) use the term “employment” and s 38(4) uses the term “worked”.
- [47]On a proper construction of the various sections, the term “worked” is coloured by ss 31, 32 and 38(4). There is no obvious policy reason why the term “worked” in s 38(4) would be limited to the physical discharge of duties. In fact, that construction would be inconsistent with the scheme of Division 5. Section 38 assumes that an entitlement to annual leave would have arisen but for the termination. By force of ss 31 and 32, that entitlement is calculated by reference to periods which would include time where an employee was not physically discharging duties; annual leave, sick leave, etc.
- [48]However, there is also no obvious policy reason why the term “worked” requires no more than the employee be employed. More is required to establish an entitlement under s 31. A person employed who is absent without pay for more than three months does not have that time counted.[33]
- [49]If the term “worked” in s 38(4) meant nothing than “employed”, then an employee whose employment was terminated but who had been absent for more than three months without pay would have a wider right than the one bestowed under ss 31 and 32.
- [50]By force of ss 31 and 32, any employee who is not absent without pay is entitled to have his period of employment count towards annual leave. That, in my view, is the meaning of “worked” in s 38(4). The term “worked” in s 38(4) excludes the exceptions in s 32(2). An employee, whether physically absent from the workplace or not but who is being paid and is subject to direction of the employer, has “worked” over the period those conditions prevail. The fact that the employee is not called upon to physically discharge any particular duty, does not mean that the employee has not “worked”. A person who is absent without pay for more than three months has not “worked” over that period for the purposes of s 38(4).
- [51]Section 38(4) uses the term “worked” twice. Firstly, it appears as part of the phrase “If the employee has worked part of a year”. An employee who is employed and is not on unpaid leave has “worked”. Secondly, the word appears as a component to calculations of the payment. That period is the part of the year where the employee is employed but not on unpaid leave for more than three months.
- [52]Mr McIlroy-Ranga was, over the relevant period, employed by the Council. He was directed not to attend the workplace and advised that he would be directed to submit to an independent medical examination. He was liable to be directed to return to the workplace and physically perform duties. Had his employment not been terminated, the time he was under those conditions would have counted towards annual leave which crystalised on the next anniversary of his employment. He was not, at any time, absent on leave without pay and did not fall within the exceptions of s 32(2).
- [53]Mr McIlroy-Ranga worked over the relevant period and the QIRC was correct to find that he was, upon termination, entitled to a proportionate payment of annual leave.
- [54]The appeal must be dismissed.
- [55]The parties urged me to make directions to facilitate the exchange of written submissions on costs. I shall make directions.
Orders
- [56]The orders are:
- The appeal is dismissed.
- The parties shall exchange submissions on costs by 4.00 pm on 28 August 2023.
- The parties shall exchange reply submissions on costs by 4.00 pm on 4 September 2023.
- Each party shall have leave to file and serve an application for leave to make submissions on costs by 4.00 pm on 18 September 2023.
- In the absence of any application being filed by 4.00 pm on 18 September 2023, the question of costs will be decided on the written submissions without further oral hearing.
Footnotes
[1] Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 419-421 and Ex parte McLean (1930) 43 CLR 472 at 479.
[2] Industrial Relations Act 2016, ss 93 and 95.
[3] Industrial Relations Act 2016, s 31; but subject to s 32.
[4] Industrial Relations Act 2016, ss 31(1) and 32.
[5] Industrial Relations Act 2016, s 33(4).
[6] Industrial Relations Act 2016, s 38(4), emphasis added.
[7] Industrial Relations Act 2016, s 38(1).
[8] Industrial Relations Act 2016, s 38(4), emphasis added.
[9] Industrial Relations Act 2016, s 557(1).
[10] Visy Paper Pty Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 1, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389.
[11] (2019) 269 CLR 507.
[12] See, eg, Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (“Engineers’ Case”) (1920) 28 CLR 129 at 162 per Higgins J.
[13] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69].
[14] Bennion, Statutory Interpretation, 3rd ed (1997), pp 343-344, referred to in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384 [78].
[15] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69].
[16] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.
[17] Heydon’s Case (1584) 3 Co Rep 7a at 7b [76 ER 637 at 638].
[18] Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg [1975] AC 591 at 614; Wacal Developments Pty Ltd v Realty Developments Pty Ltd (1978) 140 CLR 503 at 509; Wacando v The Commonwealth (1981) 148 CLR 1 at 17.
[19] (2009) 239 CLR 27 at 46-47 [47].
[20] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46-48 [47]-[53].
[21] (2010) 241 CLR 252 at 265 [32]-[34].
[22] (2012) 246 CLR 469 at 476 [14].
[23] See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46-47 [47].
[24] (1997) 187 CLR 384 at 408.
[25] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321.
[26] Interpretation Act 1987 (NSW), s 33.
[27] Recently approved in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17.
[28] Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1 at 10, Murphy v Farmer (1988) 165 CLR 19 at 26 and McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633 at 643.
[29] The Macquarie Concise Dictionary, 7th edition, 2017.
[30] Warramunda Village Inc v Pryde (2002) 116 FCR 58, Transport Workers’ Union of Australia v Jetstar Services Pty Ltd [2017] FWC 2535 and Community and Public Sector Union, NSW Branch v Northcott Supported Living Ltd [2021] FCA 8.
[31] Paragraph 3 of the letter.
[32] Paragraph 4 of the letter.
[33] Industrial Relations Act 2016, s 32.