Moreton Central Sugar Mill Suppliers’ Committee v Sugar Industry Tribunal
[1997] QCA 258
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- Unreported Judgment
- Moreton Central Sugar Mill Suppliers’ Committee v Sugar Industry Tribunal[1997] QCA 258
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Moreton Central Sugar Mill Suppliers’ Committee v Sugar Industry Tribunal[1997] QCA 258
Reported at [1999] 1 Qd R 581
Moreton Central Sugar Mill Suppliers’ Committee v Sugar Industry Tribunal[1997] QCA 258
Reported at [1999] 1 Qd R 581
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND[1997] QCA 258
Appeal No. 9764 of 1996
Brisbane
[Moreton Central Sugar Mill Suppliers’ Committee v. Sugar Industry Tribunal]
BETWEEN:
MORETON CENTRAL SUGAR MILL SUPPLIERS' COMMITTEE
Applicant
AND:
SUGAR INDUSTRY TRIBUNAL constituted by
MARK OLIVER PLUNKETT, JOHN PATRICK DEMPSEY
and CATHERINE SINCLAIR
First Respondent
AND:
MORETON LOCAL BOARD constituted by
WILLIAM JOHN FRANCIS McNAUGHT,
GRAHAM WILFRED COLEMAN,
PETER JOHN HARDERS,
GRAHAME WILLIAM COLLEY
and RONALD MILNER CLARKSON
Second Respondent
AND:
MORETON SUGAR LTD (ACN 009 657 112)
Third Respondent
McPherson J.A.
Demack J.
Helman J.
Judgment delivered 26 August 1997
Separate reasons for judgment of each member of the Court each concurring as to the orders made.
APPLICATION FOR STATUTORY ORDER OF REVIEW GRANTED. DECISION OF THE SUGAR INDUSTRY TRIBUNAL SET ASIDE. THE MATTER IS REMITTED TO THE SUGAR INDUSTRY TRIBUNAL FOR FURTHER CONSIDERATION ACCORDING TO LAW. ON THE ISSUE OF COSTS, IF THE PARTIES ARE NOT AGREED, DIRECT THAT:
1. AN APPLICANT FOR COSTS IS TO PROVIDE SUBMISSIONS IN WRITING TO THE REGISTRAR AND THE OTHER PARTIES WITHIN 21 DAYS FROM AND INCLUDING TODAY;
2. ANY SUBMISSIONS ANSWERING AN APPLICANT’S SUBMISSIONS ARE TO BE PROVIDED TO THE REGISTRAR AND THE OTHER PARTIES WITHIN A FURTHER 14 DAYS; AND
3. ANY SUBMISSIONS IN REPLY BY AN APPLICANT FOR COSTS ARE TO BE PROVIDED IN WRITING BY THE APPLICANT TO THE REGISTRAR AND THE OTHER PARTIES WITHIN A FURTHER SEVEN DAYS.
CATCHWORDS: JUDICIAL REVIEW - error of law - Sugar Industry Act 1991 - whether Sugar Industry Tribunal has jurisdiction to make provision in local board award for overtime crushing compensation payments to sugar mill suppliers.
R v. Industrial Court ex parte Cecil C. Carey Pty Ltd [1960] Qd R 86
Mutual Life & Citizens Assurance Co Ltd v. Attorney-General (Qld) (1961) 106 CLR 48
Esber v. The Commonwealth (1992) 174 CLR 430
Kentlee Pty Ltd v. Prince Consort Pty Ltd & Ors (Appeal no. 128 of 1995, unreported, 2 April 1996)
D’Emden v. Peder (1904) 1 CLR 91
Salvation Army (Victoria) Property Trust v. Shire of Fern Tree Gully Corporation (1952) 85 CLR 159
R v. Reynhoudt (1962) 107 CLR 381
Flaherty v. Girgis (1987) 162 CLR 574
Re Alcan Australia Ltd, ex parte Federation of Industrial Manufacturing and Engineering Employees (1994) 181 CLR 96
Galloway v. Galloway [1956] AC 299
Counsel: Mr I.D.F. Callinan QC with him Mr P. Favell for the applicant.
Mr S.A. McLeod for the first respondent.
Mr A. Morris QC with him Mr L.J. Hampson for the third respondent.
Solicitors: C.J. Cooper and Associates for the applicant.
Crown Solicitor for the first respondent.
Minter Ellison for the third respondent.
Hearing Date: 10 June 1997
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 9764 of 1996
Brisbane
Before McPherson J.A.
Demack J.
Helman J.
[Moreton Central Sugar Mill Suppliers’ Committee v. Sugar Industry Tribunal]
BETWEEN:
MORETON CENTRAL SUGAR MILL SUPPLIERS COMMITTEE
(Applicant)
AND:
SUGAR INDUSTRY TRIBUNAL constituted by
MARK OLIVER PLUNKETT, JOHN PATRICK DEMPSEY
and CATHERINE SINCLAIR
(First Respondent)
AND:
MORETON LOCAL BOARD constituted by
WILLIAM JOHN FRANCIS McNAUGHT,
GRAHAM WILFRED COLEMAN,
PETER JOHN HARDERS,
GRAHAME WILLIAM COLLEY
and RONALD MILNER CLARKSON
(Second Respondent)
AND:
MORETON SUGAR LTD. (ACN 009 657 112)
(Third Respondent)
REASONS FOR JUDGMENT - McPHERSON J.A.
Judgment delivered 26 August 1997
I have read the reasons of Helman J. I agree with what his Honour has said in those reasons and with the order he proposes for disposing of this matter.
The origins of the decision on 18 September 1996 of the Sugar Industry Tribunal declining jurisdiction can, as Helman J observes, be traced back to Townley J. sitting as Chairman of the Central Sugar Cane Prices Board in 1959. However, it was not until the Chairman delivered the decision of that Board in 1968 that his Honour fully explained the process of reasoning underlying it.
The 1968 decision is contained in the extract from the Gazette of 9 October 1968, which is set out in the reasons of Helman J. A factor that the Chairman said had influenced him in reaching it was that the Board neither could nor should direct a canegrower to work or refrain from working overtime, any more than it could or should direct a mill owner to crush or refraining from crushing during overtime hours. No claim of that kind has so far been made before the Sugar Industry Tribunal in the proceedings from which this application comes to us. It is therefore possible to pass over it without further comment.
A second factor that influenced the Chairman in arriving at the decisions given in 1968 and earlier was the impact of the industrial legislation, which was then contained in The Industrial Conciliation and Arbitration Act, 1961 to 1964, which I will refer to as the 1961 Act. What the Chairman said was that he was “unable to regard the determination of hours for the harvesting of cane as a matter over which this Board has any form of jurisdiction”. In support of that opinion he cited ss.6(1), 11(1) and (2), 12(1)(b) and 13(3)(d) of the 1961 Act.
Speaking generally, the effect of those provisions was by s.11(1) to vest in the Industrial Commission jurisdiction in respect of an “industrial matter”, which was defined generally in s.5 of the 1961 Act as including “any matter or thing affecting or relating to work to be done”, and specifically in s. 12(1)(b) as including the making of an award “fixing the number of hours and the time to be worked in order to entitle employees to the prices or wages so fixed”. Further, by s.13(3)(d) of the Act, the Commission was given power in certain circumstances to make a general ruling as to standard hours. As to all these matters, the jurisdiction of the Commission was by s. 28 of the 1961 Act declared to be exclusive of the Supreme Court and of all other Courts whatsoever.
Hon. K.R. Townley in his reasons in the 1968 decision plainly regarded s.28, read together with other provisions referred to, as excluding the jurisdiction of the Board to deal with the times at or durations for which cane might be harvested or crushed, as to which he said that the “whole area of the matter of hours is already committed to the Commission”. If there was a concurrent or other jurisdiction in the Board, then, he asked, “What are the limits of our jurisdiction and that of the Industrial Commission ? Where is the boundary between them ?”
Having posed that question in rhetorical form, the Chairman went on to offer the following answer:
“An answer might be attempted by saying that this Board deals with hours of work as between mill owners and canegrowers as such, and the Industrial Commission with hours of work as between employers and employees, canegrowers and harvester crews or mill owner and mill employees. Here that answer provides no delimitation. Of its very nature the operation of mechanical harvesting requires in all but an insignificant number of cases the employment of men by the canegrower or harvesting contractor. If this Board makes any decision which determines or affects the hours during which cane may or may not be harvested, that decision immediately and directly affects employees of the canegrower or contractor in relation to their hours of work. There is not to my knowledge any mill area where all harvester crews contain no employees.
Even if the Commission has not legislated for hours of work for mechanical harvesting the field is not open to this Board for, as I have said, the whole extent of the subject matter has been entrusted to the Commission.”
The expression “directly affects employees of the canegrower or contractor in relation to their hours of work” shows, to my mind, that the Chairman was in this context adverting to the definition in s.5 of the 1961 Act of “ industrial matter” as “any matter or thing affecting ... work to be done”, which formed a subject over which the Industrial Commission was invested with exclusive jurisdiction. What, however, is a little mystifying about the Chairman’s conclusion on this point is that, as a Judge of the Supreme Court, Townley J. had himself been responsible for the principal judgment of the Full Court in R. v. Industrial Court ex parte Cecil C. Carey Pty. Ltd. [1960] Qd.R. 86, 103, in which his Honour had, in relation to the earlier Industrial Conciliation and Arbitration Act of 1932, held that it was “designed to regulate relations between employer and employee as such”; and that, for the Industrial Commission or Court (as it then was) to deal with “trading hours” rather than working hours, was to concern itself with matters that “do not necessarily touch the employer-employee relationship at all” ([1960] Qd.R. 86, 103).
That approach to interpreting the jurisdiction of the Industrial Court or Commission over an “industrial matter” was, in effect, later confirmed by the High Court in Mutual Life & Citizens’ Assurance Co. Ltd. v. Attorney-General (Qld.) (1961) 106 CLR 48, 57, where Dixon C.J. said that:
“ ... an essential condition of a jurisdiction described bu or depending upon those words is that these must be, or have been, an employee. It seems impossible to find in a combination of the definition of ‘industrial cause’ and the definition of ‘industrial matter’ any jurisdiction over an industrial cause unless the character of employee in fact exists or has existed.”
To like effect, Kitto J. (106 CLR 48, 58) said that a claim of right was not within the Industrial Court’s jurisdiction in industrial causes “unless the parties were employer and employee, and the right is claimed in virtue of that relationship”.
Once that proposition is accepted, it becomes even more difficult to understand why Hon. K.R. Townley, as Chairman of the Board in 1968, should have concluded that the Board’s jurisdiction with respect to times or hours of cane harvesting or cane crushing was excluded by the provisions of s. 28 of the Act of 1961. No doubt, as he observed in the extract quoted, a determination by the Board with respect to those matters would or might “affect employees in relation to their hours of work”; but it would do so, if at all, not as the Chairman said “immediately and directly”, but at most only consequentially and indirectly. In the same way, fixing of the trading hours or days for shops would be likely, but not necessarily, indirectly to affect working hours of employee shop assistants; yet in R. v. Industrial Court ex parte Cecil C. Carey Pty. Ltd. [1960] Qd.R. 86, 103, it was held to be beyond jurisdiction for the Industrial Court to require shops to be closed on specified public holidays.
The Act of 1961 was repealed by the Industrial Relations Act 1990. Section 6 (1)(a) of the 1990 Act continues to define industrial matters as including “(a) work done or to be done”; and s. 6(3)(b) to include “the hours of work, the time to be worked to entitle employees to a particular wage ...”. Section 39 maintains the rule that the jurisdiction of the Industrial Commission is exclusive of that of any other court or tribunal. Nevertheless the terms or form in which “industrial matter” is defined in that Act are sufficiently similar to the corresponding definitions in the 1932 Act and the 1961 Act to continue to attract the interpretation placed upon them in the earlier decisions, and in particular by Mutual Life & Citizens’ Assurance Co. Ltd. v. Attorney-General (Qld.) (1961) 106 CLR 48, 57, 58, which confined the jurisdiction of the Commission to industrial matters in which, as Dixon C.J. said, the character of employee is an “essential condition”; or, as Kitto J. expressed it, a right is claimed in virtue of the relationship of employer and employee.
In my respectful opinion, the jurisdiction of the Tribunal to entertain the claim of the applicant to delete cl. 21 of the Moreton local award, and insert a new provision in the form proffered by the Committee in this instance, is not in law limited or excluded by the considerations referred to by the Chairman of the Board in the decision given in 1968; and it follows that the Tribunal should not have regarded that decision as operating to exclude its jurisdiction in this instance. Whatever its merits or demerits, the proposed new cl.21, does not take as its foundation or starting point the relationship of employer and employee; nor is the character or relation of employee an essential condition of the jurisdiction that the Tribunal is being called on to exercise in deciding whether or not to include it in the local award. That being so, it appears to me that the application before the Tribunal was not and is not ousted as being within the exclusive jurisdiction of the Industrial Commission.
In all other respects (to which my own few remarks here are simply an addition), I agree with the reasons of Helman J. for concluding that the decision of the Tribunal should be set aside and the matter remitted to it for further consideration according to law.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 9764 of 1996
Brisbane
Before McPherson J.A.
Demack J.
Helman J.
[Moreton Central Sugar Mill Suppliers’ Committee v. Sugar Industry Tribunal]
BETWEEN:
MORETON CENTRAL SUGAR MILL SUPPLIERS COMMITTEE
(Applicant)
AND:
SUGAR INDUSTRY TRIBUNAL constituted by
MARK OLIVER PLUNKETT, JOHN PATRICK DEMPSEY
and CATHERINE SINCLAIR
(First Respondent)
AND:
MORETON LOCAL BOARD constituted by
WILLIAM JOHN FRANCIS McNAUGHT,
GRAHAM WILFRED COLEMAN,
PETER JOHN HARDERS,
GRAHAME WILLIAM COLLEY
and RONALD MILNER CLARKSON
(Second Respondent)
AND:
MORETON SUGAR LTD. (ACN 009 657 112)
(Third Respondent)
REASONS FOR JUDGMENT - DEMACK J.
Judgment delivered 26 August 1997
I have had the advantage of reading the reasons for judgment of Helman J. I agree with his Honour’s reasons and with the orders he proposes. I have also had the advantage of reading the additional remarks of McPherson J.A. with which I agree.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 9764 of 1996
Brisbane
Before McPherson J.A.
Demack J.
Helman J.
[Moreton Central Sugar Mill Suppliers’ Committee v. Sugar Industry Tribunal]
BETWEEN:
MORETON CENTRAL SUGAR MILL SUPPLIERS COMMITTEE
(Applicant)
AND:
SUGAR INDUSTRY TRIBUNAL constituted by
MARK OLIVER PLUNKETT, JOHN PATRICK DEMPSEY
and CATHERINE SINCLAIR
(First Respondent)
AND:
MORETON LOCAL BOARD constituted by
WILLIAM JOHN FRANCIS McNAUGHT,
GRAHAM WILFRED COLEMAN,
PETER JOHN HARDERS,
GRAHAME WILLIAM COLLEY
and RONALD MILNER CLARKSON
(Second Respondent)
AND:
MORETON SUGAR LTD. (ACN 009 657 112)
(Third Respondent)
REASONS FOR JUDGMENT - HELMAN J.
Judgment delivered 26 August 1997
This is an application under the Judicial Review Act 1991 in relation to a decision of the Sugar Industry Tribunal established under the Sugar Industry Act 1991. The Tribunal dismissed an application by the Moreton Central Sugar Mill Suppliers' Committee for review of a determination made by the Moreton local board. The Committee sought the deletion of a clause, no. 21, of the Moreton local board award for the 1995 season and the insertion of a new clause 21. The Tribunal concluded that the board had no power to insert the new clause 21 into the award, and accordingly the Tribunal had no jurisdiction on an application for review to insert the proposed clause in the award. The applicant committee, asserting that the Tribunal made an error of law as to its lack of jurisdiction to consider the application before it, now seeks a statutory order of review of the Tribunal's decision.
The decision was made by an administrative tribunal and so was "of an administrative character": see s.4 of the Judicial Review Act.
At a directions hearing before Thomas J., his Honour, at the invitation of the parties, ordered, under s.251 of the Supreme Court Act 1995, that the hearing of this application take place before the Court of Appeal. The determination of the application requires consideration of a number of decisions of judges and retired judges of the Supreme Court sitting on the Central Sugar Cane Prices Board. In those circumstances a departure from the usual practice of hearing and determining applications of this kind before a single judge was clearly justified.
The Moreton local board award for the 1995 season was dated 12 April 1995 and was published in the Queensland Government Gazette of 12 May 1995 (vol.CCCIX, no.19), pp.269-280. When the application was made to the Tribunal on 31 May 1995 s.219(c) of the Sugar Industry Act permitted an application, subject to s.126, to the Tribunal for review of a determination made by a local board of the provisions of an award. The application was heard by the Tribunal on 10 May 1996 and the decision handed down on 18 September 1996. The Sugar Industry Act was extensively amended after 31 May 1995. Most importantly in the context of this application, s.30 of the Sugar Industry Amendment Act 1996, which commenced on 30 July 1996, provided for the omission of s.219(c). In addition, s.26 of the 1996 Act provided for the omission of s.126 and the insertion of a new s.126. No argument was addressed to us on that subject, although Mr Callinan Q.C., for the applicant, referred to the amendments. It appears to be accepted that they are not relevant to our decision, presumably on the ground that the effect of s.20 of the Acts Interpretation Act 1954 is to preserve the right of the applicant to have the matter determined according to the law as it was when it made its application to the Tribunal: see Esber v. The Commonwealth (1992) 174 C.L.R. 430; and see also Kentlee Pty Ltd v. Prince Consort Pty Ltd [1998] 1 Qd.R. 162. In what follows I shall then confine my discussion of the Sugar Industry Act to its provisions as they were on 31 May 1995.
The Sugar Industry Act provided in s.38(1) that the Governor in Council might constitute local boards for the purposes of the Act. The objectives of a local board were set out in s.39:
"Objectives of a local board
39. The principal objectives of a local board are–
- to ensure the efficient participation by assignment holders and mill owners within its jurisdiction in the scheme prescribed by this Act for the production, acquisition and marketing of, and payment for, the products of the Queensland sugar industry; and
- to enhance the benefits flowing from the production and milling of sugarcane to the assignment holders and mill owners within its jurisdiction and to the Queensland economy generally."
Section 118 provided for the making of awards. That section, so far as it is relevant to this application, was as follows:
"Making of awards
118.(1) Before a date determined in writing by the Corporation in each calendar year, a local board is to make an award in accordance with this Act–
- for the crushing season commencing in that year; and
- for the mill for which it is constituted and the lands assigned to the mill.
. . .
(3) The award is to be signed by the chairperson and lodged for registration with the Corporation on or before the date determined by the Corporation under subsection (1).
(4) When an award is registered with the Corporation, the Corporation is to arrange for the award to be published in the Gazette.
(5) Upon being published in the Gazette, an award made for a mill–
- is to be judicially noticed; and
- subject to Division 2, on and from a date specified in the award, is binding upon–
- the owner of the mill; and
- the assignment holders growing sugarcane upon the lands assigned to the mill; and
- any mortgagee, licensee, transferee and any other person having any title to or interest in the mill or lands or the sugarcane on the lands."
The "Corporation" referred to was the Queensland Sugar Corporation, which was constituted under s.9 of the Act. Section 118 was in Division 1 (Awards generally) of Part 8 (AWARDS). Division 2 (Applications to Tribunal concerning awards, ss.125 and 126) regulated applications to the Tribunal, which was constituted under s.209.
The matters to which an award extended were provided for in s.119:
"Matters to which award extends
119.(1) An award made for a mill is to provide for–
- all matters relating to the harvesting and delivery to the mill by assignment holders of sugarcane grown on lands assigned to the mill; and
- all matters relating to the transport, handling and crushing of the sugarcane by the mill owner; and
- all matters relating to the payment for the sugarcane by the mill owner.
(2) In respect of the matters referred to in subsection (1), an award may provide for penalty payments in terms of money or in terms referable to money, by the mill owner to an assignment holder or by an assignment holder to the mill owner for a breach of the conditions laid down in the award.
(3) Such a provision does not prejudice proceedings for an offence against this Act constituted by the breach of the conditions of the award.
(4) An award made for a crushing season (the `award season') may also–
- require information to be given to the local board about an earlier crushing season or the next crushing season; and
- apply by reference to information required to be given under an award made for an earlier crushing season."
Sections 120, 121, and 122, which are also relevant to this application, provided:
"Matters relevant to making of award
120. A local board, in making an award for a mill may take into consideration all or any of the following matters–
- the estimated quantity of sugarcane to be treated at the mill;
- the estimated commercial cane sugar content of the sugarcane;
- the cost of production of sugarcane and the cost of manufacture of sugar;
- the crushing capacity of the mill;
- the selling price of raw sugar and refined sugar;
- any local conditions;
- any prescribed matters;
- any matters deducible from any or all of these matters.
Award to determine crushing times
121. An award made for a mill–
- is to fix a date on and after which the owner of the mill is to take delivery of and crush sugarcane; and
- is to provide for the termination of crushing operations by the mill, including at the discretion of the owner of the mill in the event that the supply of sugarcane to the mill falls below a rate specified in the award.
Award to regulate price of and payment for sugarcane to assignment holders
122.(1) An award made for a mill is to specify–
- a base price to be paid for sugarcane; or
- base prices to be paid for sugarcane of different qualities;
accepted by the mill owner according to the content of commercial cane sugar or on such other basis or bases as the local board making the award may specify.
(2) An award made for a mill may provide for a relative scheme of payment, that is to say–
- for payment for sugarcane of the average quality of sugarcane accepted by the mill owner during any week or other specified period of time at a price equal to that payable for sugarcane of the average quality of all sugarcane accepted by the mill owner during the crushing season in question; and
- for the determination of the price to be paid to each assignment holder for the holder's sugarcane accepted by the mill owner during any week or specified period of time according to the relation the quality of that sugarcane bears to the quality of all sugarcane accepted by the mill owner during that week or, as the case may be, other specified period of time.
(3) The base price or base prices for sugarcane specified in the award are to be associated with an estimated selling price of sugar stated in the award.
(4) Provision may be made in the award for the actual price or prices for sugarcane to vary from the base price or base prices as the actual selling price of sugar varies from the estimated price.
(5) An award is to provide a basis for determining the price payable for sugarcane that is the same for every assignment holder bound by the award.
(6) An award is to determine an interim minimum price or interim minimum prices for sugarcane.
(7) The interim minimum price or interim minimum prices are not to exceed 80% of the base price or base prices, as the case may be, unless a higher interim minimum price or interim minimum prices are authorised under the Corporation's guidelines.
(8) Except as hereinafter provided, every award is taken to provide–
- that, except where the mill is in the possession of an administrator under this Act, the mill owner is to pay to each assignment holder, in respect of the holder's sugarcane accepted in each month of the season, a sum equal to the interim minimum price for the sugarcane under the award; and
- unless the award provides for payment within a lesser period of time–that the payment is to be made within 30 days after the end of the month to which it applies; and
- that if the mill owner fails to make the payment within the specified time, the mill owner commits a breach of the award.
(9) Subsection (8) does not affect a provision in an award prescribing payments for sugarcane at more frequent intervals.
(10) Deductions from the base price payable for sugarcane may be provided for in the award in respect of–
- burnt, frosted, dried-up, diseased, pest infested, decayed, badly topped, trashy, or dirty sugarcane; or
- sugarcane of a variety certified by the Director to have a material milling disability; or
- overloading of trucks; or
- matters prescribed by the regulations.
(11) Notwithstanding the provisions of subsection (10), an award may provide that if the quality or condition of sugarcane does not comply with standards specified in the award, the mill owner may refuse, or may defer acceptance of, the sugarcane."
Section 126(1) provided that an application might be made to the Tribunal for a review of any provision of an award by, inter alios, a mill suppliers' committee constituted with respect to the mill to which the award related. Section 126(2) laid down time limits for applications for review. Section 126(3) provided that the Tribunal in the exercise of the jurisdiction conferred on it by Part 12 (SUGAR INDUSTRY TRIBUNAL) might order a variation of an award determined by it to take effect retrospectively so as to apply to a part of the crushing season occurring before the order was made.
The jurisdiction of the Tribunal was provided for in s.218, which was in Part 12:
"Jurisdiction of Tribunal
218.(1) Jurisdiction is conferred on the Tribunal to hear and determine every application made to it in accordance with this Act.
(2) In the exercise of its jurisdiction, the Tribunal is to act independently, impartially and fairly.
(3) The Tribunal is not competent to make any order as to costs except against a person who is found by it to have instituted a frivolous or vexatious application."
Section 219, so far as it is relevant to this application, and s.221 provided:
"Review of determination
219. An application may be made to the Tribunal for review of the following determinations–
. . .
- subject to section 126, a determination made by a local board of the provisions of an award;
. . .
Decision on review
221.(1) A review by the Tribunal of a determination by . . . a local board is to be by fresh determination on the merits.
(2) Upon reviewing a determination the Tribunal may–
- affirm the determination; or
- remit the matter to . . . the local board for reconsideration having regard to the matters specified by the Tribunal; or
- set aside the determination; or
- substitute its own determination for that reviewed, which substituted determination is to take effect as if it were that of . . . the local board; or
- vary as it thinks fit the determination which determination as varied is to take effect as if it were that of . . . the local board.
(3) A determination made by the Tribunal upon an application is to be given effect by all persons concerned."
Clause 21 in the Moreton local board award for the 1995 season was:
"21. Continuous Crushing Agreement.–The millowner and all cane growers shall be deemed to be bound by and shall observe in all relevant respects the terms and conditions of any Continuous Crushing Agreement between the Moreton Sugar Company Limited and the Moreton Mill Supplier's Committee."
The applicant sought the deletion of clause 21 and in the insertion of a new clause 21:
"21. OVERTIME CRUSHING
- (a)
(i) Whilst Moreton Mill is operated in a four shift roster system and/or continuous crushing mode and/or weekend crushing mode (in this clause called collectively `overtime crushing mode'), the Millowner shall pay to assignment holders compensation for each and every tonne of accepted cane which has been harvested and delivered on weekends or on a scheduled rostered day off except for:
· where the assignment holder or a group before or during the season applies to harvest on his rostered day off as a normal occurrence;
· over burning/harvest equipment breakdown or failure to complete the allotment by the assignment holder for other than mill causes;
· circumstances outside the control of the mill, the assignment holder wishes to supply cane on his rostered day off because of non supply in the season;
- the compensation shall be based upon the average reasonable additional demonstrable actual costs associated with an efficient harvesting operation and paid throughout the season whilst the Mill is in overtime crushing mode at the next available cane pay. For the 1995 season the quantum of the compensation shall be $0.62 per tonne of cane.
- in addition to the above compensation the Mill shall pay growers an allowance of $0.70 on each tonne of cane harvested on weekends whilst in overtime crushing mode. This allowance shall be adjusted upwards or downwards in the proportion that the No. 2 pool price of sugar bears to $300.00 and paid with the final cane payment for the season to all growers on a pro rata basis across all cane supplied whilst in overtime crushing mode."
The Tribunal, in reaching its decision that it lacked jurisdiction in this matter, relied, as did the third respondent before us, on the rule of construction concerning judicial interpretation of earlier statutes in pari materia explained by Griffith C.J., with whom Barton and O'Connor JJ. concurred, in D'Emden v. Pedder (1904) 1 C.L.R. 91:
"Now, when a particular form of legislative enactment which has received authoritative interpretation, whether by judicial decision or by a long course of practice, is adopted in the framing of a later Statute, it is a sound rule of construction to hold that the words so adopted were intended by the legislature to bear the meaning which has been so put upon them." (p.110)
The Tribunal in its judgment referred to five decisions of the Central Sugar Cane Prices Board, the predecessor of the Tribunal, under Acts regulating the sugar industry before the Sugar Industry Act. The immediately preceding act was the Regulation of Sugar Cane Prices Act of 1962 which commenced on 1 March 1963. Before the 1962 Act was The Regulation of Sugar Cane Prices Act of 1915. Sections 56 and 57 of the 1962 Act are relevant to this application:
"56. Award to determine harvesting, etc., matters.
(1) An award shall determine all matters relating to the harvesting and delivery of sugar-cane by the cane-growers, and the transport, handling and crushing thereof and the payment therefor by the mill-owner.
(2) In respect of the matters referred to in subsection (1) of this section, an award may provide for a penalty payment in terms of money or in terms referable to money, by the mill-owner to a cane-grower or by a cane-grower to the mill-owner for a breach of the conditions laid down in the award.
Nothing herein contained shall be read or construed so as to prevent the mill-owner or any cane-grower from proceeding by complaint under section ninety-nine of this Act for a breach of the award.
57. Matters which may be considered in making awards.
A Local Board, in making an award, or the Central Board in making, adopting, or varying an award may take into consideration all or any of the following matters, that is to say:–
- the estimated quantity of sugar-cane to be treated at the mill concerned;
- the estimated commercial cane sugar content of the sugar-cane;
- the cost of production of sugar-cane and the cost of manufacture of sugar;
- the crushing capacity of the mill;
- the conditions as to labour or otherwise under which the sugar-cane is grown, harvested and delivered to the mill;
- the selling price of raw sugar and refined sugar;
- any other local conditions;
- any prescribed matters;
- any matters deducible from any or all of the matters abovementioned."
It can be seen that those sections are the same in substance as ss.119 and 120 of the Sugar Industry Act, so far as the latter sections are relevant to this application. Provisions similar to those in ss.56(1) and 57 of the 1962 Act were in ss.6(1) and 20(1) respectively of the 1915 Act as amended before the first of the five decisions.
The first decision of the Central Sugar Cane Prices Board referred to by the Tribunal was dated 23 July 1959 and was reported in the Queensland Government Gazette of 27 August 1959 (vol.CCI, no.138), p.2424. Several mill suppliers' committees sought the deletion from local board awards of provisions which authorized "monetary deductions" for the supply of badly-topped, dirty, or trashy cane. The appeals were dismissed although the awards were amended without deleting the provisions objected to. Referring to the powers of the Board, the Chairman, Townley J., said:
"This Board has, of course, no power to direct, by award or otherwise, a mill or anyone else to employ persons to do particular work. It can only suggest or recommend." (p.2425)
The second decision referred to was one of 12 July 1961 reported in the Queensland Government Gazette of 21 August 1961 (vol.CCVII, no.94), p.1617. A mill suppliers' committee sought provision in an award for a cartage allowance for cane delivered to railway delivery points. The Chairman, Townley J., with whom the millowners' representative concurred, observed that the "general rule in this and many other areas" was that a cartage allowance was not paid in respect of the carting of cane from farm to a delivery point other than the mill yard. The suppliers' committee sought to base the application on an argument that the millowner could and should build a tramline to serve the growers in question and for that reason the allowance should be made. The application was dismissed. Townley J. said:
"In my opinion this Board has no power to compel a mill owner to build a tramline and it should not do by devious means what it may not do by direct." (p.1617)
The third decision was one of 22 September 1967 published in the Queensland Government Gazette of 12 October 1967 (vol.CCXXVI, no.24), p.515. The Chairman, the Honourable K.R. Townley who had resigned as a judge of this Court in 1962 and with whose conclusions the other members of the Board agreed, referred to a proposed provision in an award concerning overtime "avowedly designed to prohibit Saturday loading of cane except in nominated circumstances":
"My opinion - which I have previously expressed - is that, in spite of the apparently comprehensive words in which section 56(1) is couched, there are areas in both the canegrowing and the milling spheres where this Board should not and may not intrude. I do not think that this Board can or should direct a grower to work `overtime' or refrain from working `overtime' any more than it can or should direct a millowner to crush or refrain from crushing during `overtime' hours.." (p.515)
The fourth decision referred to by the Tribunal was one of 29 September 1976 reported in the Queensland Government Gazette of 1 November 1976 (vol.CCLIII, no.53), p.1023. In that case the Chairman, J.A. Douglas J., with whom the other members of the Board concurred, observed that it had emerged in argument that the real purpose of the application, by a mill suppliers' committee for the insertion of a clause in an award providing for extra payments by the millowners to growers for cane harvested on Saturdays and Sundays, was to provide a method whereby the mill could be penalized for having inadequate crushing capacity. It was held that the application was one which "from many points of view" could not be allowed.
Finally there was the decision of the Board of 5 July 1989 reported in the Queensland Government Gazette on 14 October 1989 (vol.CCXCII, no.59), p.1125. That decision is, in my view, the most relevant to this application. The decision concerned an application by Mourilyan Mill Suppliers' Committee and an application by the mill owners. In dealing with the Mill Suppliers' Committee application the Board, the Chairman of which was the Honourable R.H. Matthews, in a unanimous decision said:
"During the 1987 and 1988 seasons the Mourilyan Mill adopted continuous crushing of cane delivered to it with the consequence that rostered growers harvested during weekends. Provision for this was made in the relevant Awards which also provided for payment by the millowner of `the extra labour costs incurred for harvesting labour for all cane which is harvested on weekends . . . by a five out of seven day rostered harvesting operation'.
The extent to which the relevant clauses in the Awards was accepted on both sides is now disputed, but this does not concern us, there having been no appeal in respect of those clauses to the Board.
However, the Local Board Award for 1989 in which such a clause has again been inserted is the subject of appeal by the Mill Suppliers' Committee and a cross appeal by the millowner. The substance of the appeal by the Mill Suppliers' Committee may be shortly stated. In addition to `extra labour costs' earlier mentioned the Committee seeks as a condition of acceptance of continuous crushing a payment by the millowner of $2 per tonne of cane. The millowner's refusal to pay this additional sum has the result that there is no agreement between the parties that continuous crushing operate during the 1989 season. The consequence is that this Board is required to consider whether there is jurisdiction (either in the Local Board or the Central Board) to insert in an Award a clause such as is proposed by the Mill Suppliers' Committee.
We think that the answer to this question is clearly `No'. This Board has never assumed jurisdiction to order a grower or a millowner to work overtime hours in the harvesting of cane or the manufacture of sugar, and as the argument before the Board progressed, Mr Callinan of Queen's Counsel for the Mill Suppliers' Committee accepted the correctness of this attitude, but pointing to the history of negotiation between the millowner and growers and the economic pressures which might lead individual growers to accept weekend harvesting, he submitted that this Board has the right to attach a condition to continuous crushing (if the millowner and some growers agreed upon this) that the mill pay the suggested $2 per tonne in addition to extra labour costs.
Undoubtedly there are economic advantages for both miller and grower flowing from continuous crushing and from a grower's point of view advantages may be translated into pressures, but acceptance of Mr Callinan's submission would again involve an attempt by this Board to insist that any relevant agreement contain a particular term. Seen in this light, the Board would again by asserting a jurisdiction not possessed by it.
The Board therefore dismisses the appeal." (p.1125)
It should be observed that the Tribunal appears to have treated all five decisions as having been made under the 1962 Act, whereas clearly the first two were not.
The decisions of the Central Sugar Cane Prices Board were concisely expressed and the processes of reasoning which led to them not greatly elaborated. They decide that the jurisdiction of the Central Board fell short of permitting it to order that employers engaged people to do particular work (the first decision), to order that overtime hours be worked (the fifth decision) or not worked (the third decision), to compel the acquisition of plant and equipment (the second decision), or to impose a penalty for the failure to acquire plant and equipment (the fourth decision).
In giving his reasons for a decision of the Central Sugar Cane Prices Board of 25 September 1968, the Chairman, the Honourable K.R. Townley, explained in greater detail the reasoning which led to the 1967 decision. The 1968 case, reported in the Queensland Government Gazette of 9 October 1968 (vol.CCXXIX, no.17), p.421, was an appeal by a suppliers' committee seeking the insertion in an award of a clause requiring the millowner to supply trucks and bins at delivery points for growers to enable the growers to deliver their daily allotments to the delivery points between the hours of 6.00 a.m. and 6.00 p.m. of the day to which the allotment related unless wet weather, mechanical breakdown or other factors beyond the control of the millowner prevented it. The Chairman observed that it seemed that the motive for the appeal was to render any agreement for harvesting outside the hours I have mentioned void. He also observed that in a system of chopped cane harvesting any determination of delivery hours was necessarily a determination of harvesting hours or necessarily affected harvesting hours. Dealing with the power to deal with harvesting hours, he said:
"On the other hand if this Board were to insert the proposed clause in the Award with knowledge of its real purpose would it not, impliedly at least, show approval of the purpose? In my view, if the power to deal with hours of harvesting cane is vested in another tribunal this Board should not, by decision or otherwise, express an opinion on the subject. To do so would be both presumptuous and otiose.
In a decision upon a previous appeal by the same Mill Suppliers' Committee I said this, `My opinion–which I have previously expressed–is that in spite of the apparently comprehensive words in which section 56 (1) is couched, there are areas in both the canegrowing and the milling spheres where this Board should not and may not intrude. I do not think that this Board can or should direct a grower to work "overtime" or refrain from working "overtime" any more than it can or should direct a millowner to crush or refrain from crushing during "overtime" hours.' (Government Gazette, 12th October, 1967, p. 515).
I still adhere to the opinion then expressed. I am unable to regard the determination of hours for the harvesting of cane as a matter over which this Board has any form of jurisdiction. That matter is certainly an "industrial matter" as defined by section 5 of "The Industrial Conciliation and Arbitration Acts, 1961 to 1964." Reference may also be made to sections 6 (1), 11 (1) and (2), 12 (1) (b) and 13 (3) (d).
The history of this industrial legislation from "The Wages Board Act of 1908" to the present Acts shows that new tribunals were from time to time erected to deal with rights and obligations of which the Common Law knew nothing and which were the creatures of the same legislation which erected the tribunals. This history, in my view, gives rise to the implication that the tribunals thus erected were to have exclusive jurisdiction over the rights and obligations thus created. One might compare the presumption that, where a statute creates a new right and provides a method of enforcing that right, the method provided is deemed to be exclusive unless a contrary intention appears in the statute. I think my view is confirmed by section 28 which removes matters within the jurisdiction of the Industrial Commission from that of the Supreme and "all other Courts whatsoever". I do not of course suggest that this Board is a "Court" but the provision confirms the view that the jurisdiction conferred upon the Commission is intended to be exclusive. Perhaps no other tribunal was mentioned because Parliament thought no other was likely to claim jurisdiction.
If exclusive jurisdiction to legislate for hours of work in any calling is conferred upon the Industrial Commission there is no room for the exercise of concurrent jurisdiction by this Board. The whole area of the matter of hours is already committed to the Commission. If there were in this Board concurrent or some other form of jurisdiction over part of the subject matter one might ask what are the limits of our jurisdiction and that of the Industrial Commission? Where is the boundary between them?
An answer might be attempted by saying that this Board deals with hours of work as between millowners and canegrowers as such and the Industrial Commission with hours of work as between employers and employees, canegrower and harvester crews or millowner and mill employees. Here that answer provides no delimitation. Of its very nature the operation of mechanical harvesting requires in all but an insignificant number of cases the employment of men by the canegrower or harvesting contractor. If this Board makes any decision which determines or affects the hours during which cane may or may not be harvested, that decision immediately and directly affects employees of the canegrower or contractor in relation to their hours of work. There is not to my knowledge any mill area where all harvester crews contain no employees.
Even if the Commission has not legislated for hours of work for mechanical harvesting the field is not open to this Board for, as I have said, the whole extent of the subject matter has been entrusted to the Commission.
These are the reasons which led me to say what I said last year and to adhere to what I then said.
In my view the question of restricted or extended hours for the harvesting of cane is one which the Sugar Industry must resolve for itself after investigation, discussion and any necessary industrial proceedings." (p.422)
The principle which may be derived from the Board's decisions could be expressed by saying that the conditions of employment of people employed in the sugar industry and investment decisions by those engaged in the industry were out of bounds to the Board. I do not see how it could be said that consideration and, if appropriate, acceptance, of the clause proposed by the applicant can fairly be said to offend that principle. The working of overtime is of course contemplated by the clause, but a requirement that overtime be worked or not worked is not part of it. It follows that this case can, subject to something I shall refer to next, be distinguished from those mentioned by the Tribunal.
The reservation I mentioned arises from the fifth decision. In it the Central Sugar Cane Prices Board concluded that the determination of a price for sugar cane harvested in a period of continuous crushing was outside its jurisdiction.
The outcome of this application depends on the proper construction of the Sugar Industry Act, in the process of deciding which the rule concerning the authority of judicial interpretation of prior legislation in pari materia with the statute in question must be considered.
Beginning, however, with the ordinary and natural meaning of the words of the statute, I can see no reason to exclude from the scope of paragraph (c) of s.119(1) the matter of price. The contention that the matter of price was not included in the scope of that paragraph was, however, a foundation of Mr Morris Q.C.'s argument for the third respondent: he submitted that one must go to s.122 and - subject to a minor qualification - to it alone to find a local board's power to set the price of sugar cane in an award. On that premiss, Mr Morris then relied on the maxim expressio unius est exclusio alterius to submit that only a base price or base prices could be specified in an award, in accordance with s.122(1) and (2), subject to any deduction provided for in s.122(10), or – and this was the qualification – penalty provided for in s.119(2). On my reading of the Act that submission is plainly inconsistent with the ordinary and natural meaning of the words of s.119(1): all matters relating to payment for the sugar cane include in ordinary language, in my opinion, such things as the time, the place, and the method of payment - and the sum to be paid.
Even if one were confined to the provisions as to price in s.122 and s.119(2), I should not conclude that they were as narrow as Mr Morris argued they were. Section 122 provided for a base price or prices in sub-section (1), for a relative scheme of payment in sub-section (2), and for certain deductions in sub-section (10). I do not read those provisions as excluding the power to specify, in an appropriate case, an adjustment to the base price or prices in defined circumstances which do not fall within sub-section (10). The expression "base price" implied that an adjustment, by discount or surcharge, was contemplated. There seems to be no reason to conclude that that understanding of the function of a base price, familiar in other industries, should not have applied to the sugar industry. The provisions of s.119(2) and s.122(10) were not, on my reading of the Act, sufficient to displace that effect inherent in the wording of s.122(1).
Upon a proper construction of the Act, s.119(1)(c) was a general provision concerning the content of an award as to payment for sugar cane by a mill owner and s.122 a particular provision. The maxim generalia specialibus non derogant would then have applied to the construction of those provisions, but, as I have explained, I do not construe s.122 as narrowly as Mr Morris contended for and hence I see no inconsonance between it and s.119(1)(c) and so no impediment to a local board's, and hence the Tribunal's, considering the question whether a price varied as contended for by the applicant should be provided for in an award. The clause contended for by the applicant expresses the extra payments as "compensation" in the proposed clause 21(a) and as "an allowance" in the proposed clause 21(b). Whatever words are used the essence of the payments in each case is a surcharge on the price at certain defined times.
Mr Morris submitted that s.122(5) was a further impediment to the applicant's assertion that a local board and hence the Tribunal would have jurisdiction in this matter since not all cane growers would have an equal opportunity to avail themselves of continuous crushing. I see no merit in that argument: upon its proper construction that sub-section required that each assignment holder receive the same price as every other assignment holder so that there would be no disparity in the price paid to assignment holders for sugar cane in any one category. It follows that for cane to which a base price applied without deduction all assignment holders must have received the same base price; for cane to which a base price with a discount applied, all assignments holders must have received the same discounted price; and for cane to which a base price with a surcharge applied, all assignment holders must have received the same price with the surcharge.
I therefore conclude that the relevant provisions of the Sugar Industry Act, when given their ordinary and natural meanings, would have permitted the local board and the Tribunal to consider the proposed new clause 21. Did, however, the application of the rule referred to by Sir Samuel Griffith in D'Emden v. Pedder have the effect of denying that jurisdiction to the board and hence the Tribunal?
The re-enactment rule (see D.C. Pearce and R.S. Geddes, Statutory Interpretation in Australia, 4th ed., 1996, paras.3.25-3.30, pp.78-84) - doubted subsequently to D'Emden v. Pedder in Salvation Army (Victoria) Property Trust v. Shire of Fern Tree Gully Corporation (1952) 85 C.L.R. 159, Reg. v. Reynhoudt (1962) 107 C.L.R. 381, and Flaherty v. Girgis (1987) 162 C.L.R. 574 - was recently applied in Re Alcan Australia Ltd, ex parte Federation of Industrial Manufacturing and Engineering Employees (1994) 181 C.L.R. 96 at p.106. Although it is clear that the rule - "an almost mystical method of discovering the law": Galloway v. Galloway [1956] A.C. 299, at p.320 - has survived, there is high authority for the proposition that a court should not accept a previous construction if it concludes that it was wrong. In Salvation Army (Victoria) Property Trust v. Fern Tree Gully Corporation Dixon, Williams and Webb JJ. said:
"The respondent relied on the principle of interpretation that where the language of a statute has received judicial interpretation, and Parliament again employs the same language in a subsequent statute dealing with the same subject, there is a presumption that Parliament intended that the language so used by it in the subsequent statute should be given the meaning which has been judicially attributed to it in the meantime. But this principle affords at most a valuable presumption as to the meaning of the language employed. It should not lead the Court to perpetuate the construction of a statutory provision which it considers to be erroneous.." (p.174)
In the same case Fullagar J. observed that an argument based on the re-enactment rule "never carries great weight: indeed it can seldom be effectively used except as lending additional support to a view which is already supported by an independent argument". (p.182)
I should add that the decisions of the Central Sugar Cane Prices Board were not judicial decisions stricto sensu, but they of course should be regarded as at least as authoritative as a long course of practice.
I have already explained my reasons for concluding that only one of the decisions of the Central Sugar Cane Prices Board referred to by the Tribunal supports the argument advanced by Mr Morris. To the extent that that decision is at odds with the plain meaning of the Act, in my view, and with respect to the members of the Board, it was erroneous.
The applicant is then entitled to the relief it seeks on the ground that the decision of the Tribunal involved an error of law in that it wrongly decided it did not have jurisdiction to entertain the application before it. The decision of the Tribunal should be set aside and the matter referred to the Tribunal for further consideration with a direction that it be dealt with according to law.
At the hearing of this application oral and written submissions were made on behalf of the applicant and the third respondent only. The first respondent, in a written submission, sought to be heard on any question of costs. The second respondent did not appear. In those circumstances I think we should defer any decision on the question of costs until there is an opportunity for further submissions to be made on that subject. If the parties cannot agree on the costs of the application they must submit their arguments in writing to the Court. Any submissions by an applicant for costs should be in the hands of the Registrar and the other parties within twenty-one days from and including today, any submissions answering an applicant's submissions within a further fourteen days, and any submissions in reply by an applicant within a further seven days.