T7585
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Tasmanian Chamber of Commerce and Industry Limited
Appeal - decision by President F D Westwood on 17 February 1998 in matter T6540 of 1996 - appeal dismissed - declaration varied REASONS FOR DECISION Introduction The matter under appeal (T6540 of 1996) has a long history, the full details of which appear in the President's Reasons for Decision of 17 February 1998. For purposes of the present proceedings it is necessary to record only the following facts. On 30 September 1996 the Chief Executive, Workplace Standards Authority, applied to the President, pursuant to Section 43(1) of the Industrial Relations Act 1984, for an interpretation of Clause 9 - Annual Leave of the Restaurant Keepers Award. The application specifically invited the President to consider the phrase "continuous service" as it appears in that clause in regard to "the effect, if any, on the annual leave accrual of an employee during a Workers Compensation absence". The President, having heard the parties, issued the following declaration in determination of the matter:1
The Tasmanian Chamber of Commerce and Industry Limited subsequently appealed the President's decision pursuant to Section 70(1)(f) of the Act. The grounds relied upon by the appellant appear below. When the appeal came on for hearing on Monday 18 May 1998, Mr S J Gates appeared for the Tasmanian Chamber of Commerce and Industry Limited, Mr S Cooper, a legal practitioner, appeared by leave of the Commission for the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch, and Mr G Williams appeared for the Chief Executive, Workplace Standards Authority. The Appellant's Case The appellant relied on 11 grounds in support of the appeal, which we consider in the sequence followed by Mr Gates in his submissions. Appeal Ground Nos 1, 2 and 3
Each of these grounds of Appeal, Mr Gates explained, go to the rules of interpretation first determined by this Commission in matter T30 of 1985 and subsequently adopted in a number of more recent cases, eg. T4715 of 1993.2 More specifically, Mr Gates added, the appellant contends the President erred in that he failed to the apply the following principles of interpretation as set out in T30 of 1985:
The second principle mentioned above, Mr Gates said, is more appropriately considered in relation to Appeal Ground No 8 (below, at pages 6-7 ). As to the remaining principles, he continued, Section 43(1A) of the Act provides that:
The two options available to the President under the Act, Mr Gates contended, are very clear. However, he submitted, in his decision the President said, in substance, that were it not for the effect of Section 84 of the Workers Rehabilitation and Compensation Act 1988 and Section 42 of the Industrial Relations Act 1984, he would be satisfied "that the award does not provide for employees, absent on workers' compensation, to count such absences as service for the purpose of calculating entitlements to annual leave".3 In expressing his view as to what the words in question mean, absent certain statutory provisions, Mr Gates submitted, the President in fact declared his opinion as to the actual meaning and effect of the words used in the award. Nevertheless, he continued, the President then went on to refer to certain judgments of the Supreme Court of Tasmania4 that purport to establish an entitlement in an employee on workers' compensation "to annual leave or to receive a payment equivalent to annual leave based on any period [the] employee is absent on workers' compensation".5 The President observed that:6
It is clear from the course followed by the President in his decision, Mr Gates contended, that he erred by not applying the third of the principles set out in T30 of 1985.7 The basis of the President's error, Mr Gates said, lies in the fact that although he made no finding that the words under consideration were incapable of being construed in an intelligible way, he nevertheless went on to import into those words a meaning different from that suggested by ordinary English usage. That is to say, he added, the President relied on a meaning assigned to the words in the Workers Rehabilitation and Compensation Act 1988 which, Mr Gates argued, is not the ordinary usage of the words and does not reflect their true meaning. In so determining the matter, Mr Gates submitted, the President fell into error because his purported declaration pursuant to Section 43(1A)(a) of the Act8 did not reflect what he had earlier found to be the actual meaning of the words in question.9 Instead, Mr Gates continued, the President declared the words to have a meaning that is not their ordinary English meaning, but a meaning that he assigned to them because of Section 42 of the Industrial Relations Act 1984 and Section 84 of the Workers Rehabilitation and Compensation Act 1988. In applying Section 43(1A)(a) of the Act the President's proper task, Mr Gates contended, was to declare the meaning of the words in question and then, in the event of there having arisen some consequential problem, to vary the award in such a way as to remedy any defect or to give full effect to his declaration. However, instead of following that course, Mr Gates said, the President focussed on the statutory inconsistency that was before him rather than on the meaning of the words in question. In doing so, he said, the President acted contrary to the principles set down in T30 of 1985. It is upon a similar basis, Mr Gates submitted, that the President erred in respect of the fourth principle mentioned in T30 of 1985.10 The President's duty in that regard, Mr Gates argued, was to ascertain the true meaning of the words used in the award and not attribute to them some other intention, by reference to Section 42 of the Act or Section 84 of the Workers Rehabilitation and Compensation Act 1988, for the purpose of overriding their ordinary English usage. In the present case, he added, that meaning is not one capable of being reasonably and properly borne by the actual words. Accordingly, Mr Gates contended, the President's declaration is inconsistent with the principles of interpretation as found in T30 of 1985. Finally, as to those principles, Mr Gates submitted, the President erred in that, regarding the seventh principle,11 he imported into the award by implication a meaning or interpretation that the words in question, on their face, simply do not express. To give the words of an award a meaning that is not immediately apparent to "persons not skilled at law, or versed in subtleties of interpretation", Mr Gates asserted, only serves to mislead and confuse those persons who must work under and apply the award. In the circumstances, he continued, if the President had formed the view that, upon a proper construction, the words in the award were in some way unjust, his proper course of action was not to make a declaration pursuant to Section 43(1A)(a) but, in accordance with Section 43(1A)(b) of the Act, to direct the parties to vary the award to clarify the relevant provision. Appeal Ground Nos 4 and 5
Section 42 of the Act, Mr Gates submitted, is very straightforward because it simply states that:
Section 43 of the Act is equally straightforward, Mr Gates said. All that provision requires of the President is that, in brief, he declare "how the provision of an award is to be interpreted" or, if he believes that approach to be inappropriate, to direct "that an application to vary the award be made to clarify the provision". There is no statutory requirement inherent in Section 43, Mr Gates submitted, that obliges the President to consider other Acts of Parliament when interpreting words used in an award. In addition, he continued, there is no obligation on the President to construe the meaning of words in any manner other than that which appears clearly on their face-an approach that is entirely consistent with the Commission's principles of interpretation as set out in T30 of 1985. However that is not to say, Mr Gates ventured, that Section 42 has no effect. At the end of the day, he continued, after the President has made a relevant declaration pursuant to section 43(1A) of the Act, it may be found that the words in an award are inconsistent with an Act of Parliament that deals with the same subject-matter. In that event, Mr Gates contended, Section 42 will have the effect of overriding the award to the extent of any inconsistency. In such circumstances, he submitted, it will be for the President to direct the parties, if necessary by order, to vary the award to relevantly clarify its terms. But, Mr Gates concluded, Section 42 does not require the President to assign to the words in question a meaning that, on their face, is not their true meaning. In doing so in the present case, Mr Gates submitted, the President erred. Appeal Ground Nos 6 and 8
Mr Gates submitted the President's Reasons for Decision show that, in formulating his declaration, he relied on Section 84 of the Workers Rehabilitation and Compensation Act 1988 and two judgments of Cosgrove J in the Supreme Court of Tasmania, ie Cannon v Coats Patons [1985] Tas. R. 157 and Foster v Fonthill [1985] Tas. R. 159. Relying on those judgments, Mr Gates added, the President clearly accepted the proposition that "the workers' compensation legislation of this State entitles an employee to annual leave or to receive a payment equivalent to annual leave based on any period an employee is absent on workers' compensation".12 However, Mr Gates submitted, Section 84 of the Workers Rehabilitation and Compensation Act 1988 does not confer on an employee an entitlement to accrue annual leave during a period of absence on workers' compensation, because any such entitlement must depend upon the contract of employment, ie "the contract of service in force when the right to compensation occurred".13 The judgments of Cosgrove J in Cannon and Foster, Mr Gates contended, do not purport to interpret the provisions of the relevant awards and they do not interpret the meaning of the words "continuous service". Furthermore, Mr Gates submitted, in relying on those judgments the President, contrary to the second of the principles set out in T30 of 1985,14 effectively applied merit considerations in determining the meaning of the words "continuous service" in the present matter. The President's task, he said, was merely to interpret the relevant provisions of the Restaurant Keepers Award. In such circumstances, Mr Gates contended, Cannon and Fonthill were not germane to the issue, because the question before the President was not whether, as a matter of merit, employees on workers' compensation should accrue an entitlement to annual leave but simply the meaning of the words "continuous service" as used in the award. In the circumstances, he argued, the President fell into error by considering and applying Cosgrove J's judgments in the manner in which he did. Appeal Ground No 7
Mr Gates submitted the President actually determined the meaning of the words in question when he stated, in his Reasons for Decision, that were it not for Section 84 of the Workers Rehabilitation and Compensation Act 1988 and Section 42 of the Industrial Relations Act 1984, he would be satisfied "that the award does not provide for employees, absent on workers' compensation, to count such absences as service for the purpose of calculating entitlements to annual leave".15 However, he continued, instead of making a declaration based on that finding, the President went on to construct his declaration on the foundation of two other irrelevant factors, ie Section 84 of the Workers Rehabilitation and Compensation Act 1988, including the judgments of Cosgrove J and his own perception of the effect of Section 42 of the Industrial Relations Act 1984. In so dealing with the matter, Mr Gates submitted, the President was in error. Appeal Ground No 9
The President, Mr Gates said, concluded his Reasons for Decision with the following statement:16
Mr Gates submitted that, by making the statement he did, the President defined the outcome of any such application and effectively precluded an impartial hearing of the matter, either by himself or any other Commission member. It was not appropriate for the President to act in that manner, Mr Gates contended, because he chose to determine the matter by application of Section 43(1A)(a) of the Act. That provision, Mr Gates continued, empowered the President, his declaration aside, to do nothing other than vary the award himself, if he believed his declaration required him to do so. Although the approach the President actually took, concerning a recommendation, was arguably open to him pursuant to Section 43(1A)(b) of the Act, Mr Gates submitted, that is not the statutory alternative the President elected to apply in determining the outcome of the application. It follows, Mr Gates contended, that had the President been satisfied as to the correctness of his declaration, which he made pursuant to Section 43(1A)(a) of the Act, there would have been no need for him to make a statement in the form of his concluding recommendation. In the circumstances, Mr Gates added, it is open to suggest the President was aware that the words in question do not have the meaning he declared them to have but that, nevertheless, "he's saying, I'll attribute to them a meaning and make it clear that that's what it's going to be".17 For those reasons, Mr Gates contended, the President's statement is ultra vires the Act and, because it is not impartial, prejudicial to any case that a party opposed to such an award variation might wish to make. In that regard, Mr Gates submitted, the President, in exercising the Commission's jurisdiction, did not in terms of Section 20(1)(a) of the Act "act according to equity, good conscience, and the merits of the case" and furthermore, because "justice must be done and also be seen to be done",18 he did not "have regard to the public interest" in terms of Section 20(1)(d) of the Act. Appeal Ground No 10
The President, Mr Gates submitted, did not properly apply the provisions of Section 43(1A)(a) of the Act in that he failed to declare whether his declaration was to apply "retrospectively or prospectively". In the circumstances, Mr Gates said, the President's declaration is incapable of application because of uncertainty. In that regard, he continued, the President erred because his declaration is clearly defective. Appeal Ground No 11
The purpose of this appeal ground, Mr Gates explained, is to enable the Full Bench, should it come to the conclusion in its deliberations that there is a deficiency in the specific appeal grounds as lodged, to utilise the "any other grounds" facility to rectify that deficiency. The Respondent's Case The issue before the Commission is fundamentally a simple matter, Mr Cooper submitted. That is so, he said, because the question turns only on a consideration of Section 42 of the Industrial Relations Act 1984, how that provision impacts upon the relevant provision of the Restaurant Keepers Award, and what effect the Workers Rehabilitation and Compensation Act 1988, which deals with similar subject-matter, has on the interpretation in question. Before proceeding with his primary submission in the above regard, which concerned Appeal Ground Nos 3, 4, 5 and 6,19 Mr Cooper dealt very briefly with those grounds of appeal that canvassed other issues. Appeal Ground Nos 1 and 2: Any suggestion by the appellant that the President failed to make a declaration, Mr Cooper submitted, is manifestly wrong. The President's declaration in relation to the meaning of the award clause in question, Mr Cooper said, appears plainly in the penultimate paragraph of his Reasons for Decision of 17 February 1998.20 Furthermore, Mr Cooper submitted, the appellant's contention that the President failed to apply the rules of interpretation set out in T30 of 1985 in coming to his decision ignores two important facts. First, he said, the then President, in formulating the principles, was very careful to point out that he was only making "some preliminary observations".21 Second, Mr Cooper continued, the suggested principles, being merely guidelines, do not operate to fetter the Commission's discretion in relation to matters of interpretation. In any event, Mr Cooper concluded, there is absolutely nothing in the President's decision that indicates he did not have regard to those principles. Appeal Ground No 7: The appellant's contention that the President erred in that, having determined the meaning of the words in question, he thereafter declined to issue a declaration to that effect, Mr Cooper said, is "manifestly, obviously and demonstrably wrong".22 The President's decision, Mr Cooper added, quite clearly shows that he did issue a declaration. Mr Cooper further asserted that, to fasten upon a half-way stage reached by the President in the course of his deliberations, as the appellant has done, is simply not permissible. The President, he continued, approached the matter quite correctly: he went through all the required stages, in the course of which he considered Section 84 of the Workers Rehabilitation and Compensation Act 1988 because Section 42 of the Industrial Relations Act 1984 obliged him to do so. In coming to his decision, Mr Cooper contended, the President was not required to reach a conclusion as to the meaning of the relevant award clause as if it existed in a vacuum. To argue, as the appellant does, Mr Cooper submitted, that in such circumstances the President should not have regard to what the law says "is a novel proposition which I doubt would find any favour in any jurisdiction anywhere else in the country".23 Appeal Ground No 8: The appellant's contention that the President erred by allowing merit considerations to influence his declaration, Mr Cooper submitted, is in the circumstances another novel proposition. That is so, Mr Cooper contended, because it suggests that, in the course of his deliberations, the President should not have had regard to a statute of the Tasmanian Parliament (the Workers Rehabilitation and Compensation Act 1988) or followed two relevant decisions of a Supreme Court judge (Cosgrove J in Cannon and Foster). That contention, Mr Cooper urged, should not influence this Bench in coming to its own conclusion. Appeal Ground No 9: The President did not err in the manner for which the appellant contends, Mr Cooper submitted, because all he did was make a suggestion. He did not "direct" anything. Appeal Ground No 10: Mr Cooper conceded there may be some substance to the appellant's contention in this regard. However, he said, should the Bench form that opinion, it ought to exercise its own power to vary the President's declaration for the purpose of removing any doubt that may exist as to whether, regarding its effect, the declaration is retrospective or prospective in operation. In any event, Mr Cooper concluded, little or nothing turns on that issue in relation to the substantive declaration. Appeal Ground No 11: Apart from asserting that this "ground" is not a ground of appeal at all, Mr Cooper declined to address the matter. Appeal Ground Nos 3, 4, 5 and 6: The award provision containing the expression "continuous service", Mr Cooper submitted, came before the President on the basis of a particular set of facts put to him on behalf of the Chief Executive, Workplace Standards Authority. That fact situation, he continued, disclosed that the phrase "continuous service" is ambiguous because, on its face, it permits two possible outcomes. That is to say, Mr Cooper postulated, did "continuous service" mean continuous employment, or did it mean something different? For example, he explained, if there are breaks in the continuity of employment or absences from employment or service occasioned by, in this case, a period on workers' compensation, do those breaks count as "continuous service" in relation to determining annual leave entitlements? In dealing with questions of this nature, Mr Cooper submitted, Section 42 of the Act makes it quite clear that, in exercising the Commission's jurisdiction pursuant to Section 43, the President must have regard to "... the provisions of any Act dealing with the same subject-matter". In the circumstances, Mr Cooper asserted, the appellant's contention to the contrary is nonsense. In addition and even more fundamentally, he continued, there is an implied requirement that an award of the Commission will be interpreted in a manner consistent with the law. The President's starting point in relation to Section 42, Mr Cooper contended, was clearly the Workers Rehabilitation and Compensation Act 1988. That Act or more specifically Section 84, he said, dealt with the same subject-matter as that covered by the application now under appeal. Mr Cooper submitted that Section 84 or, more accurately, its predecessor-Section 8C of the Workers Compensation Act 1927-was dealt with on two occasions by Cosgrove J of the Supreme Court of Tasmania in Cannon and Foster. In the principle case of the two, ie Cannon, Mr Cooper said the essential facts were that, following a work related injury in 1970, the plaintiff (Cannon) received her full compensation entitlement in 1978 as the consequence of an agreement executed by the parties. That agreement, however, "expressly reserved the question of whether by virtue of the Workers Compensation Act 1927, s.8C, she was entitled to payments in respect of annual recreational leave".24 The plaintiff's conditions of employment were governed by the Textile Industry (Woollen and Worsted Section) Award, an award made in 1968, which "provided that she was entitled to a period of twenty-one consecutive days' leave annually after twelve months' continuous service".25 It is clear from the facts of the case, Mr Cooper said, that Cosgrove J was specifically required to determine the question expressly reserved by the parties in 1978. In determining the matter, Mr Cooper submitted, His Honour observed that:26
After considering certain entitlement calculations, Mr Cooper said, Cosgrove J then went on to say:27
The Workers Rehabilitation and Compensation Act 1988, in Section 84, Mr Cooper contended, reproduces a provision that is effectively equivalent to, or "on all fours with",28 Section 8C of the Workers Compensation Act 1927. In the circumstances, he submitted, it is "fundamentally plain that Clause 9 of the Restaurant Keepers Award is subject to Section 84 of the Workers Rehabilitation and Compensation Act 1988. Consequently, Mr Cooper concluded, the President did not fall into error, as the appellant alleged, but applied the law correctly and appropriately, as he was obliged to do. Findings We find it convenient to begin our consideration of the parties' arguments with the respondent's primary submission concerning Appeal Ground Nos 3, 4, 5 and 6. In that regard we go first to Section 42 of the Act. That provision, in effect, obliges the Commission in the exercise of its award-making jurisdiction, to have regard to "the provisions of any Act dealing with the same subject-matter". The respondent's contention is that the subject-matter of the application now under appeal, ie Clause 9 - Annual Leave of the Restaurant Keepers Award (with particular emphasis on the phrase "continuous service"), is the same subject-matter as that for which Section 84 of the Workers Rehabilitation and Compensation Act 1988 makes provision. The basis of this contention as it was put to the President (it was not put to us in so many terms) is that both provisions deal with annual leave, an industrial award matter.29 It seems to us the expression "the same subject-matter", as used in Section 42, necessarily requires that there be a true correspondence of subject-matter between the award and Act in question. The subject-matter of the present case, according to the appellant, concerns accrual of annual leave entitlement and the proper meaning of the phrase "continuous service" as it appears in that context in Clause 9 of the relevant award. Section 84(1) of the Workers Rehabilitation and Compensation Act 1988, on the other hand, at least as we construe it, creates a statutory right in a worker-who but for an incapacity giving rise to compensation would have been at work and, subject to the contract of service in force at the time, would have accrued an entitlement to annual recreational leave-to be "given ... a similar period of leave on full pay in lieu of that annual recreational leave ..." - Section 84(1)(b). We agree with the appellant that Section 84(1) of the Workers Rehabilitation and Compensation Act 1988 does not, on its face, create an entitlement to accrue annual recreational leave-it merely creates an entitlement in a worker, in certain circumstances, to receive the benefit of that leave should there have been a relevant accrual. According to Section 84(1), the leave entitlement itself must accrue, if it accrues at all, under a relevant "contract of service in force when the right to compensation occurred". Were it not for what follows, we might have found ourselves disposed to conclude that the subject-matter of the present proceedings, ie the proper meaning of the phrase "continuous service" as it appears in Clause 9 of the Restaurant Keepers Award, because it deals with accrual of annual leave entitlement, is not in terms of Section 42 of the Industrial Relations Act 1984, the same subject-matter as that referred to in Section 84 of the Workers Rehabilitation and Compensation Act 1988. That enactment, although making provision for an entitlement in lieu of annual leave, arguably deals with something other than accrual of such entitlement. However, Mr Cooper's further submission was that the President, in exercising the Commission's jurisdiction pursuant to Section 43 of the Act, must act according to the law.30 The law in that regard, as he put it to both the President and us, appears to reflect in the judgments of Cosgrove J in Cannon and Foster. In Cannon, the primary of the two judgments for present purposes, His Honour considered two points of relevance to the present proceedings. First, having regard to what was then Section 8C of the Workers Compensation Act 1927-which for present purposes we do not think is distinguishable as to substance from Section 84(1) of the Workers Rehabilitation and Compensation Act 1988-Cosgrove J observed, perhaps because the question does not appear to have been an issue before him, that "the relevant contract of service was the award".31 In that context His Honour had earlier noted that the award in question "provided that [the plaintiff] was entitled to a period of twenty-one consecutive days' leave annually after twelve months' continuous service".32 We note, as an aside, that the question of what constituted "the relevant contract of service" does not appear to have arisen at all in Foster. Second, His Honour found that the plaintiff "was entitled ... to leave on full pay for a period equivalent to the leave she would have received had she been at work during the relevant period ...".33 In deciding the plaintiff was so entitled we must assume, since there is nothing to the contrary in his judgment, that His Honour entertained no doubt that the particular award did not operate to exclude a lengthy period of absence on authorised workers' compensation from counting as "continuous service" for purposes of accruing an entitlement to annual leave. Those are the elements of Cosgrove J's judgment in Cannon that we believe comprise the law for purposes of the current matter. Moving forward to the facts of the present case, no party put in issue, either before the President or before us, the question of whether the Restaurant Keepers Award comprised the relevant "contract of service" for purposes of Section 84(1) of the Workers Rehabilitation and Compensation Act 1988. In the circumstances, having regard to the authority established by Cosgrove J in Cannon which, he observed in Foster, was not challenged,34 we see no reason to conclude on the evidence that the "relevant contract of service" in the present case was any instrument other than the Restaurant Keepers Award. Clause 9 - Annual Leave of the Restaurant Keepers Award, in subclause (a), expresses the basis of accrual of annual leave entitlement in the following terms:
The quantum of leave aside, the difference of substance for present purposes between this provision and that considered by Cosgrove J in Cannon lies in the words appended in parentheses, ie "less the period of annual leave". In our opinion, those words, being simply of an explanatory nature, do not operate to so change the substance of Clause 9(a) that it is sensibly different from that which was before Cosgrove J. In the circumstances, we are unable to distinguish the facts of the present matter from those that were before Cosgrove J in Cannon. For that reason we think Cannon is authority for concluding, on the facts before us, that the words "continuous service", as used in Clause 9 of the Restaurant Keepers Award, do not operate to prevent the accrual of annual leave entitlements by employees who are absent from work on a period of authorised workers' compensation. In short, having regard to Cannon in particular and in the absence of any award provision to the contrary35, we believe Section 84(1) of the Workers Rehabilitation and Compensation Act 1988, by virtue of Cosgrove J's judgment, operates to provide that absences on workers' compensation are authorised absences for purposes of award-based annual leave entitlements that depend for their accrual upon the phrase "continuous service". For those reasons, contrary to our initial inclination, we accept Mr Cooper's submissions that Section 84(1) of the Workers Rehabilitation and Compensation Act 1988 deals with the same subject-matter as Clause 9(a) of the Restaurant Keepers Award. That is why, in our view, the early cases of Australian Rope and Cordage Workers Union v A Forsyth & Co Pty Ltd re Geo Kinnear & Sons Pty Ltd (1944) 51 CAR 794 and Wire Workers Wire Fence and Tubular Gate Workers Union of Australia and Others v Rylands Bros (Aust) Pty Ltd and Others (1944) 53 CAR 180, to which Mr Gates directed our attention, do not appear to assist the appellant. In the circumstances we have formed the opinion that the President did not err, either in applying to the words "continuous service" the meaning flowing from Cannon or by referring to Section 42 of the Act. The above discussion and the conclusions we have reached allow us to make the following findings regarding the Grounds of Appeal considered in this context: Appeal Ground No 3: In our opinion the President's duty in interpreting the meaning of the words put to him was to act according to the law-the law in this case being that declared by Cosgrove J in Cannon and Foster. In so acting, in our view, the President was not constrained, as the appellant in effect contended, to look merely at the award and the Commission's interpretation guidelines as if they existed in some kind of environment free from operation of the law. We believe that, in referring to Cannon and Foster, the President correctly identified and applied the law to the issue that was before him. In our opinion, the President did not err as to the substance of his declaration, which we believe to be correct. For those reasons we dismiss the contentions raised in Appeal Ground No 3. Appeal Ground No 4: We have already said we believe the President was obliged to act according to the law. In our opinion, the President did not err by referring to Section 42 of the Act when he applied to the words "continuous service" the meaning flowing from Cannon. We dismiss Appeal Ground No 4. Appeal Ground No 5: The extract of the President's Reasons for Decision included in this ground of appeal appears to us to seriously misrepresent the President's position because it suggests he gave no reasons in support of his conclusion.36 At the risk of some repetition, but in fairness to the President, the following is the full text of the paragraph from which the appeal ground has been selectively excised:37
The emphasis, which is ours, is included to demonstrate that what the ground of appeal as quoted omits is the essential part of the entire one sentence paragraph, because that part sets out the very essence of why the President concluded that certain actions would be inappropriate. The quote, as we see it, is entirely selective in that it does not even reflect the whole sentence but only that part which was, apparently, considered to be supportive of the appellant's case. We conclude these observations with the following admonition. It is incumbent upon appellants in this jurisdiction, if extracts of a tribunal member's decision are to be used as grounds of appeal, to set out the full context of the particular quotation in a manner that does not tend to misrepresent the basis upon which the Commission member concerned explained or stated the reason for the particular finding. It may be, in some instances, that such an explanation or statement is not discernible in a particular decision. If that is the case, the appeal ground should express such a contention. Turning now to the appeal ground itself it becomes quite clear, once context-the underlined phrase above-is added to the quote relied upon, that the contention is without substance. So far as the President's observations purport to rely on Section 42, we have already found that he did not err in following such a course. As for the judgment of Cosgrove J in Cannon, we have found that the President was obliged to take His Honour's reasoning into account because that authority represents the relevant law. In our opinion, in that regard, it would have been entirely inappropriate for the President to do other than he did. It is our view that the President did not err as contended by the appellant. For that reason we dismiss Appeal ground No 5. Appeal Ground No 6: We agree with the appellant, for reasons set out above,38 that Section 84(1) of the Workers Rehabilitation and Compensation Act 1988 does not confer on an employee a right to accrue annual leave during a period of absence on workers' compensation. We also agree that any such accrual must occur by application of the relevant award.39 The point at which we depart from the appellant's contentions, however, is found in our belief, also expressed above, that as a consequence of Cosgrove J's decision in Cannon, Section 84(1) of the Workers Rehabilitation and Compensation Act 1988 operates to provide that absences on workers' compensation are authorised absences for purposes of award-based annual leave entitlements that depend for their accrual upon the phrase "continuous service". In this latter context, to the extent that Cosgrove J's judgment in Cannon concerning Section 84(1) of the Workers Rehabilitation and Compensation Act 1988 operates to determine the meaning of the award phrase "continuous service", the President, in our opinion, was entitled, if not obliged, to rely on His Honour's judgment as expressing the law. Accordingly we do not see that, in so acting, the President erred by misconstruing the meaning of the Workers Rehabilitation and Compensation Act 1988 in the context of this appeal ground. Accordingly, we dismiss Appeal Ground No 6. We now turn to consider the remaining grounds of appeal. Appeal Ground Nos 1 and 2: We are of the view that these two grounds of appeal are entirely misconceived because they seek to elevate to the binding status of law a set of what are no more or less than discretionary guidelines. They were proposed by former President Koerbin in T30 of 1985, who himself said they were simply "some preliminary observations".40 Furthermore, in the decision on appeal in T4715 of 1993, upon which Mr Gates also relied in this context and which concerned an interpretation by the President, the Bench itself described the principles, correctly we think, as "guidelines". Even though the Bench then went on to purport to apply one of those principles in upholding the appeal, it seems to us that this was merely an explanatory observation because, on reading the decision as a whole, it was actually grounded in the law rather than in a principle of interpretation. That is, contrary to Section 43 of the Act:
and, later on:41
The point we wish to make here is that the President's duty, pursuant to Section 43 of the Act, is to exercise the Commission's jurisdiction according to the law. The so-called principles of interpretation may well be useful discretionary guidelines that the President and the parties might elect to call upon in order to assist in that regard. They are not, however, fixed principles that either the parties or the President must slavishly follow to the exclusion of the law. When we put this proposition to Mr Gates during the course of his submissions, he conceded the President's duty was to interpret the relevant award according to Section 43 of the Act42 or, in our words, according to the law. Consequently, it seems to us that if appeal grounds of the kind now under consideration are to succeed the appellant must show that, in some way or another, the President erred either in fact or in law. It is not enough, in our opinion, to merely assert that the President failed to apply one or another of the discretionary guidelines mentioned in T30 of 1985. To the extent that Mr Gates did put issues to us regarding alleged errors of law on the part of the President we respond as follows:
Having regard to the above discussion we dismiss Appeal Ground Nos 1 and 2. Appeal Ground No 7: In our opinion, as we have already mentioned above, in merely making an observation in passing as to what the words in question might have meant in the absence of Cosgrove J's decisions in Cannon and Foster, we do not agree that the President was somehow making a finding upon which his ultimate declaration was to be based. Contrary to the appellant's contention, we believe the President based his declaration on the law, as he was required to do. In the circumstances, we reject the appellant's contention that the President erred in that regard. We accordingly dismiss Appeal Ground No 7. Appeal Ground No 8: We agree with Mr Cooper that, in applying the judgments of Cosgrove J in Cannon and Foster, the President was not determining issues of merit but simply applying the law, as he was bound to do. In the circumstances, since Cannon and Foster were entirely relevant to his task, we do not accept the appellant's contention that the President erred by allowing a merit consideration to influence his declaration. For this reason we dismiss Appeal Ground No 8. Appeal Ground No 9: In our view the appellant's contention in this regard is entirely without either substance or merit. It appears to us that the President did nothing more than make a recommendation that he evidently thought would assist the parties. He did not, however, "direct" the parties to do anything and he certainly did not purport to issue a "direction" pursuant to Section 43(1A)(b) of the Act. For these reasons we dismiss Appeal Ground No 9. Appeal Ground No 10: We are prepared to uphold the appellant's contention that the President failed to "give his declaration prospective or retrospective effect". In doing so, however, we agree with Mr Cooper's submission that nothing appears to turn on the President's omission in relation to the substantive declaration. Mr Gates contended simply that the President's declaration was accordingly defective. Neither he nor Mr Cooper gave us the benefit of any submissions regarding a "prospective or retrospective effect" in the event that we might decide-as Mr Cooper urged us to do-to exercise the powers available to us pursuant to Section 71(13) of the Act to "... vary the ... decision appealed against". Since the question is clearly a matter of discretion it is open to us, in our opinion, having regard to the well-known principles set out in House v The King [1936] 55 CLR 499, 504-505 per Dixon, Evatt and McTiernan JJ, to exercise our own discretion if we have the materials for doing so. In that regard, the relevant "materials" appear to us to be the following two factors. First, the law that the President applied was declared as such by Cosgrove J in Cannon on 29 November 1985. Second, the fact situation that gave rise to the Chief Executive seeking the interpretation the subject of the present proceedings concerns a work-related injury that occurred on 25 July 1994, the date on which the employee concerned commenced a period of authorised absence on workers' compensation.47 On the basis of the above facts we propose to exercise our own discretion in relation to the question of a "prospective or retrospective effect" of the President's declaration. In the circumstances of the case we have come to the conclusion that the only fair approach is one that has a retrospective effect. As to the two options available-the date of the judgment in Cannon (29 November 1985) or the date when the right to compensation occurred (25 July 1994)-we believe that, in the public interest, we should not extend the retrospective effect of the President's order beyond a date that will accommodate the fact situation that initially brought the matter before him. Having regard to the above circumstances we uphold Appeal Ground No 10. In doing so however, being of the opinion that the particular defect does not affect the substantive declaration, we are prepared to vary the President's declaration by including a retrospective date of effect of 25 July 1994. Appeal Ground No 11: It is not without some sense of frustration that we find it necessary to deal with this ground of appeal. It is our belief that persons acting on behalf of appellants in this jurisdiction have been repeatedly informed from the Bench that this particular ground of appeal is incompetent for the following reasons. First, the Commission is not vested with any general jurisdiction to act on its own motion. Second, it is arguable that any appellant who purported, at a hearing, to promote a ground of appeal under the generality of "any other grounds the Commission deems appropriate" would be outside jurisdiction in that such a ground would not be one lodged "within 21 days after the date of service of the notice relating to the decision being appealed against" pursuant to Section 71(1) of the Act. In the circumstances we accept Mr Cooper's submission that this ground is not a ground of appeal, since it fails to allege any error of law or fact on the part of the President in relation to the decision under appeal. For that reason we dismiss Appeal Ground No 11. Conclusion In summary, our findings in relation to the Grounds of Appeal are as follow:
Because we take the view that the appeal ground upheld does not affect the substantive declaration we dismiss the appeal and vary the President's declaration of 17 February 1998 by inserting at the end of that declaration as it appears at page 10 of his Reasons for Decision, but before the paragraph beginning with the words "It is recommended ...", the following new sentence:
B R Johnson Appearances: Date and Place of Hearing: 1 T6540 Reasons for Decision 17 February 1998, p. 10. |