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[Extract from Queensland Government Industrial Gazette,
dated 12 June, 2009, Vol. 191, No. 5, pages 87-89]
INDUSTRIAL COURT OF QUEENSLAND
Industrial Relations Act 1999 - s. 248 - application for prerogative relief
National Retail Association Limited, Union of Employers AND Deputy President Swan, Deputy President Bloomfield and Commissioner Fisher (C/2009/10)
PRESIDENT HALL / 1 June 2009DECISION
It is useful to commence by rehearsing the statutory background.
By s. 21 of the Trading (Allowable Hours) Act 1990 the Industrial Commission may decide trading hours for non-exempt shops. By s. 36 of the Acts Interpretation Act 1954 the reference to the Industrial Commission is a reference to the Queensland Industrial Relations Commission (the QRIC) continued in existence by s. 255 of the Industrial Relations Act 1999 (the Act). Section 265(1)(e) of the Act, one should add, expressly contemplates that by another Act matters may be committed to the QIRC for hearing and determination.
By s. 256 of the Act, the QIRC may be constituted by a Commissioner (as defined by s. 256(1)(b)) sitting alone or as a Full Bench (defined by s. 256(2)). By s. 21(1) of the Trading Allowable Hours Act 1990, when deciding trading hours for non-exempt shops, the QIRC must be constituted as a Full Bench.
By s. 264(2) of the Act, in ordinary circumstances, the function of determining the members of a Full Bench will be discharged by the Vice President. As s. 264(1) makes plain, the performance of such a function is necessary for the orderly and expeditious exercise of the QIRC's jurisdiction and powers.
As to the factual matters, the tale commences with a decision of this Court in each of three proceedings instituted in the Court by the National Retail Association Limited Union of Employers (hereafter the NRA). The NRA was successful in all proceedings (see 190 QGIG 63). The Orders made by the Court (on 23 January 2009) were as follows:
"The Order of the Industrial Court in Appeal Matter Nos. C/2008/40 and C/2008/43 is:
(a) that the Decision of the Queensland Industrial Relations Commission be set aside and that the matter be remitted to the Commission to be heard and determined according to law; and
(b) that the Full Bench rehearing the matter be constituted and selected by members other than Vice President Linnane and Commissioners Asbury and Thompson.
The Order of the Industrial Court in Appeal Matter No. C/2008/44 is:
(a) that the proceedings before the Queensland Industrial Relations Commission be quashed and that the Commission hear afresh Application TH/2008/4; and
(b) that the Full Bench hearing the matter afresh be constituted and selected by members other than Vice President Linnane and Commissioners Asbury and Thompson.".
As and from 23 January 2009, the effect of disqualification from further participation in proceedings pursuant to the Orders (above) was that only Deputy President Swan, Deputy President Bloomfield and Commissioner Fisher might lawfully have been invited to sit on a Full Bench established to hear the matters remitted by the Orders (above). [There have been no discussions pursuant to either s. 307(1) or s. 308(1) of the Act. It may be doubted that an application about trading hours for non-exempt shops is an "industrial matter" for the purposes of s. 308(1).]
The Orders made on 23 January 2009, contemplated the delegation of the entirely ministerial function of issuing an invitation to Deputy President Swan, Deputy President Bloomfield and Commissioner Fisher to constitute the Full Bench in each of the matters remitted to the Commission. That the function at s. 261(2) may be delegated to a Deputy President pursuant to s. 261(3) is made plain by s. 261(5) which provides:
"(5) A commissioner must comply with a direction of the vice president or a deputy president given for the performance of responsibilities under subsection (1) or (2).". [Emphasis added.]
Only by delegation might a Deputy President acquire the power to issue a s. 261(2) "direction". What in fact happened after publication of the Orders of 23 January 2009, appears sufficiently from the affidavit of Mr Gary Black, the Executive Director of the NRA sworn on 12 March 2009. [To understand the extract below one needs to know that the orders referred to, are the Orders of 23 January 2009 and that the cases numbered TH/2007/7, TH/2008/3 and TH/2008/4 are the matters remitted.] The material paragraphs are in the following terms:
"(b) On 29 January 2009, the NRA sent a facsimile to the Queensland Industrial Registry requesting that the above order be actioned as soon as practicable.
(c) By 23 February 2009, the NRA had received no contact from the Registry in relation to the orders flowing from this Court's decision of 23 January 2009 or our correspondence of 29 January 2009.
(d) On 23 February 2009, the NRA telephoned the Registry to enquire into the status of these matters and was advised that no action has been taken and that a further request should be lodged.
(e) On 24 February 2009, the NRA sent a further facsimile to the Registry requesting a Full Bench to be constituted and matters TH/2007/7, TH/2008/3 and TH/2008/4 be listed for directions hearings as soon as practicable.
(f) As of 2 March 2009, the NRA has still not received any contact from the Registry in relation to these matters.
(g) TH/2007/7 was originally filed on 7 December, with a hearing in Mackay on 20 and 21 May and in Brisbane on 3 June 2008. The Full Bench of the Commission released their decision on 18 September 2008.
(h) TH/2008/3 and TH/2008/4 were both filed on 3 July 2008.".
The affidavit, which is corroborated by an affidavit sworn by Mr Jed Isaac Moore on 31 March 2009, was not the subject of cross-examination. [Each of Deputy President Swan, Deputy President Bloomfield and Commissioner Fisher entered an appearance, indicated an intention to abide the Decision of the Court but otherwise (by consent) withdrew from proceedings. The Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) (the QRTSA) was granted leave to be heard].
No explanation for the delay appears from the materials before the Court. It is unnecessary to speculate whether a refusal to act should be inferred. By s. 24 of the Trading (Allowable Hours) Act 1990 the Commission is required to deal with a s. 21 application "as quickly … as is consistent with a fair and proper hearing of the issues". In circumstances in which the Commission lacks corporate personality (if s. 24 is to have meaning) each member of the Commission who might sit as a member of a s. 21 Full Bench must be treated as burdened by that statutory duty. Each of the Respondents has been served and is aware of the factual situation.
Howsoever the efficacy and order by performance of the QIRC's responsibilities may be disrupted by errors and omissions in the discharge of the function at s. 264(2), the consequences are internal to the Commission and impact not at all on litigants which have no or limited means of knowing how (if at all) the function has been performed. The general proposition is that developed by the Privy Council in Montreal Street Railway Co v Normandin [1917] AC 170 at 175, viz.:
"When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only.".
Here, the general proposition is reinforced by s. 348(2) of the Act which operates to protect a decision of the QIRC (once given) from collateral attack.
Had Deputy President Swan, Deputy President Bloomfield and Commissioner Fisher elected to sit as a Full Bench to hear the matters remitted by the Court, it may be doubted whether any order under the Trading (Allowable Hours) Act 1990 might have been successfully challenged on the ground that an invitation to constitute a Full Bench had not been issued. However, that is not the issue before the Court. The Court is being asked to make orders requiring Deputy President Swan, Deputy President Bloomfield and Commissioner Fisher to sit as a Full Bench, notwithstanding that an invitation under s. 264(2) of the Act has not been issued. Granted that the remedies made available by s. 248(1)(e) of the Act are discretionary in nature and that the Commission is a court of record (see s. 255), the relief sought seems to me to be a step too far. I dismiss the application.
Dated 1 June 2009.
Released: 1 June 2009 / Appearances:
Mr J.I. Moore of the National Retail Association Limited, Union of Employers, the Applicant.
Mr K. Murphy of the Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers).
Government Printer, Queensland
ÓThe State of Queensland 2009.