Blackadder v Ramsey Butchering Services Pty Ltd [2004] HCATrans 141 (30 April 2004)

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Blackadder v Ramsey Butchering Services Pty Ltd [2004] HCATrans 141 (30 April 2004)

Last Updated: 5 May 2004

[2004] HCATrans 141

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S101 of 2003

B e t w e e n -

STEPHEN BLACKADDER

Applicant

and

RAMSEY BUTCHERING SERVICES PTY LTD

Respondent

Application for special leave to appeal

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 30 APRIL 2004, AT 11.04 AM

Copyright in the High Court of Australia

MR S.C. ROTHMAN, SC: If the Court pleases, I appear with my learned friend, MR C.T. MAGEE, for the applicant. (instructed by MRM Solicitors)

MR G.J. HATCHER, SC: If it please the Court, I appear with my learned friend, MR R. MOORE, for the respondent. (instructed by Hannigans Lawyers)

McHUGH J: You might stay on your feet, Mr Hatcher, as well. Why should we not grant leave in this case?

MR HATCHER: Your Honours would not grant leave on the questions formulated by our learned friends because they simply do not arise in the case in the Full Court. The first question formulated by our learned friends is:

Does the scheme of . . . the Workplace Relations Act 1996 (the Act), and in particular, an order made . . . permit an employer bound thereby to refuse indefinitely to provide available work to the employee subject to the order?

That simply did not arise. It did not arise because it was conceded before the Court that if the contract of employment required our client to provide work, then the order of the Commission required our client to provide work. The question was: did the Workplace Relations Act confer any benefit on Mr Blackadder additional to his entitlements under the contract of employment, or did it simply restore the contract of employment? So much is clear from the statement of the case before the Full Court in his Honour Justice Moore’s reasons, which appear relevantly at page 105 of the application book at line 15:

In its appeal, the appellant challenged the orders concerning the reinstatement of the respondent, submitting that an order for reinstatement simply revives the contract of employment. Ordinarily under a contract of employment, an employee does not have a right or entitlement to work. Accordingly an order cannot be made, in exercise of a power to order reinstatement . . . which confers such a right on the employee and the corresponding duty on the employer to provide work.

It should be noted that to the extent it might be said that the contract which Mr Blackadder worked under provided an entitlement to work, Justice Madgwick had not dealt with the matter at first instance. If I could take the Court to his Honour’s judgment as reproduced in the application book at page 63, the Court sees at line 15, paragraph 58, his Honour notes that:

The applicant also relied on an implied contractual obligation . . .

Counsel for the respondent submits that there is no obligation –

Then after setting out the law in some detail on page 65, his Honour suggests that perhaps the time has come to reconsider the question of whether the contract of employment does entitle an employee in Mr Blackadder’s circumstances to a right to work. His Honour concludes at the bottom of the page:

In the light of my conclusion as to “reinstatement”, it is unnecessary for me to consider these questions to a conclusion.

So his Honour does not determine that the contract had an implied right in Mr Blackadder to have duties afforded to him and there is no notice of contention filed. It is a cross-appeal but the cross-appeal does not raise the issue. His Honour Justice Moore’s judgment is expressly on the basis that an additional right is conferred under the Workplace Relations Act, a right to be afforded work. The majority’s judgment is that no additional right is conferred. In the process of reasoning to the conclusion that the Workplace Relations Act did not afford an additional right, they do observe that Mr Blackadder’s contract is not one in which one would ordinarily expect there to be an obligation to provide work.

McHUGH J: What do you say about the special leave question stated at 144?

MR HATCHER: Your Honour, as to the first question, there is no finding by any court in this chain of litigation that the Workplace Relations Act permits an employer bound by a reinstatement order to refuse indefinitely to provide available work to the employee subject to the order.

McHUGH J: That does not necessarily mean that the question does not arise. Justice Moore said that:

the power to make an order under s 170CH(3)(a) or (b) extends to making an order requiring the employer to permit the employee to take up the position formerly occupied by the employee, or another position, including performing the duties of that position and receiving the benefits from doing so.

Why is that not covered under question 1? You may be right in the attitude that your client has taken in this, but it really smacks of an argument that you might have expected to succeed in the Court of Exchequer Chamber in the days of Mr Baron Parke, a very formalistic argument. You just reinstate somebody and they just sit there day in and day out. It borders on contemptuous of the court’s order. You may be right. That may be the legal effect of it but it does seem to raise an important question.

MR HATCHER: With respect, your Honour, the question that your Honour the presiding Judge poses may be an interesting question, but this is not the case that raises that question. The question that your Honour raises – and, indeed, your Honour’s reference to the Court of the Exchequer – makes it clear. It deals with the rights and the entitlements of an employee under his contract of employment. This case does not raise that. His Honour Justice Madgwick did not decide it and it did not appear for determination in the Full Court.

McHUGH J: You are dealing not with a pure question of contract law, but the operation of a statutory power to reinstate, a power that did not exist at common law. The question is: what is the extent of the power? Can it be frustrated by the stand that you take in respect of the matter? You may be right. It does seem an important question of construction affecting a lot of people. It is a national problem.

MR HATCHER: Your Honour the presiding Judge poses that it would be a question affecting a lot of people. If it were such a question, given the extent of jurisprudence in relation to reinstatement in this country, one might have thought it would have arisen previously. To the extent it has, the authorities suggest that reinstatement does no more than restore the contract of employment. On our list of authorities, and I think we forwarded it to the Court, is a judgment of his Honour Justice Hill, where his Honour moved from the proposition that the contract of employment does not carry with it an obligation to provide work, to find that it was open to the court to reinstate in the circumstance where there was no work presently available. Pioneer had closed the quarry where the employees had been dismissed. His Honour looked at the facts of the case and found that it would not be a futility to reinstate because other employees who had been engaged at the quarry were still employed. His Honour found that, because he was merely restoring the contract of employment, it was open to him to reinstate.

McHUGH J: Having had some experience in the industrial jurisdiction, it has always been one of the most technical jurisdictions that you will find anywhere and it may be one where you ought to approach it in a more practical, sensible way that accords with industrial realities. The approach that has been adopted here is to take a very formalistic approach. A right of reinstatement is only a right to reinstate you under the contract and, since the contract does not guarantee you any work, the right of reinstatement does not go any further. Justice Moore took a more extensive view of the power. He is a very experienced judge in this area and Justice Madgwick had a vast experience both as a barrister and as a member of the now defunct Industrial Court. They both took the view that orders could be made.

MR HATCHER: Could I take your Honour the presiding Judge to his Honour Justice Madgwick’s judgment at page 62 of the application book, line 45, where in paragraph 57 his Honour Justice Madgwick says:

As I have indicated, the applicant’s rights are as before. If he then had a legal liability to be transferred to hot neck boning, upon reinstatement he would again have such liability. If he did not, or did not until he was trained, then again he would not be so liable.

McHUGH J: But his Honour also says at paragraph 52:

It is clear that the legislation aims at a practical and appropriate result in which broad community standards of fairness are involved. Who else provides the standard of a “fair go all round” than the reasonable Australian citizen? Such a standard would, in my opinion, be impatient with fine distinctions against a person found to have been treated harshly, unjustly . . . Reinstatement to the position of employment including its usual practical incidents would, by such a standard, be the usually “appropriate” result.

If as a matter of practice a person, although not having any legal right to work, is nevertheless given work and that work is available, why does the power not extend to doing what was the practical effect of his employment under the contract? You have to say it is a very legalistic power of reinstatement. It gives you back your contractual rights but nothing else. You may be right, but we are not here to decide the question. The question is as to whether there is an important question of general principle involved. At the moment, whatever the answer is, it does seem to me to be an important question, particularly when you have a 2:2 division in the Federal Court on the point.

MR HATCHER: If it please your Honour, the difficulty with this case as being the vehicle for that is that the Court would not finally determine it unless the Court were to find that, notwithstanding the contract of employment, an order of reinstatement carries something else with it. If your Honours go to the conclusion of his Honour Justice Moore at page 125 in the application book, paragraph 54 of his judgment, it is clear why this is simply an inappropriate case. His Honour says:

I accept, on the facts of this case, an issue might arise about the nature of the duties of the respondent at the time of his dismissal. He was not then working. I have taken the view, for reasons given, that the Commissioner who made the reinstatement order contemplated that the respondent would return to work performing the duties of a boner. On the other hand, it might be thought (though, in my opinion, wrongly) that the order contemplated the respondent would return to performing no duties because he was performing none at the precise time of dismissal.

This was a case, your Honours, where Mr Blackadder had been directed to do certain duties, the hot neck boning. He had declined, he had been sent home. He was told to reconsider the position. Some time later he asked that a notice be filled out under the CES form to say that he had been dismissed. His employer did not do that. The matter went to the Commission, where he sought reinstatement. It is simply, with respect, not an appropriate vehicle to determine what may be a very important point. Again, in my respectful submission, if it were as important a point as it instinctively seems, one would have thought it might have arisen some time before the year 2004 in a country where - - -

McHUGH J: We hear that argument from time to time. One might have thought that the decision in the Boilermakers’ Case would have been challenged 27 years earlier than it was. The legislation was passed in 1929. It was not until 1956 that somebody said that the Court of Arbitration did not have power to impose penalties. We have heard that argument within the last couple of days. You hear it all the time.

MR HATCHER: If it please the Court, they are our submissions.

McHUGH J: We need not hear you, Mr Rothman. There will be a grant of special leave in this matter.

AT 11.19 AM THE MATTER WAS CONCLUDED