Construction, Forestry, Mining and Energy Union – Mining and Energy Division ats Tahmoor Coal Pty Limited [2010] FWAFB 3510.

This  decision deals with good faith bargaining requirements under the Fair Work Act ( the Act), which was on appeal from a decision of Commissioner Roberts of the 12 February 2010 (see [2010] FWA 942).  Permission was granted to appeal in the public interest, as the appeal was said to raise matters for consideration concerning important new statutory provisions, which had not been considered at a Full Bench level before [1].

The case below was one in which  the CFMEU, on behalf of its members working in this coal mine, had sought a number of bargaining orders.  The CFMEU was unsuccessful and on appeal, narrowed the nature of the orders it sought.  The making of bargaining orders, comes under Chapter 2, Division 8 of the Act.  That division is headed, “FWA’s General Role in Facilitating Bargaining”.  This case highlights the role that Fair Work Australia will have, and the circumstances in which that tribunal can be enlisted to assist parties to reach an agreement.  In order to make such bargaining orders, it must be found by Fair Work Australia that at least one of the bargaining representatives has not met, or is not meeting the good faith bargaining requirements. (See s 230, sub-section 3(a)(i)).  The meaning of “good faith bargaining requirements” are set out in s 228 of the Act.

On appeal, the CFMEU relied upon one sub-section of s 228, being  as follows:

“228(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:

(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining; –“

The Full Bench said of that provision:

“The terms of that provision require not only that conduct undermines freedom of association or collective bargaining but also that the conduct be capricious or unfair.  Of course whether conduct is capricious or unfair can only be ascertained by an examination of all the circumstances in a particular case.” [7]

What had invoked the ire of the CFMEU, in what had been long and complex negotiations, attended by a number of industrial stoppages, was the fact that Tahmoor Coal was directly providing to its employees, who were also members of the CFMEU, its offer in writing in the Enterprise Agreement negotiations.  It was asserted by the CFMEU that by the employer directly communicating to those employees, it would encourage different views amongst that group of employees, without the bargaining representatives being present (CFMEU).  This conduct, it was claimed had the natural effect of weakening or undermining collective bargaining.  Further, such conduct would diminish the authority of the employee’s bargaining representative in the collective bargaining process [19]. It was also asserted that the most recent representative of Tahmoor Coal, had conducted the negotiations “at a level of intimidation”, which drew some comment both from the Commissioner at first instance and from the Full Bench.  This latter submission in relation to the manner in which the Colliery’s representative had conducted the negotiations, were to make good the argument that the Colliery had acted “capriciously or unfairly”.  The Full Bench said,

“The Commissioner accepted that Mr Nicholls (on behalf of the Colliery) adopted a very aggressive approach in the employee meetings and that he “probably crossed the line of what is reasonable in the  circumstances”, but he commented that aggressive tactics appear to be the norm in the coal industry.  We take this to be a finding that whilst Mr Nicholls’ behaviour might have been unreasonable in most industries, it was not inconsistent with normal behaviour in coal industry negotiations.  Aggression is to be deprecated.  But given some of the evidence of employer responses to Tahmoor’s proposals, taken with the Commissioner’s familiarity with the industry, the finding was open to him. We do not regard the fact that Mr Nicholls had referred to the possibility of employees being locked out as significant.  It appears that this statement was made in the context of response to the taking of protected action by employees.” [31]

I never thought that it could be said that the CFMEU were “shrinking violets”

However, on the key matters raised in the appeal, the Full Bench found against the Appellant.  The Full Bench found that  Tahmoor Coal had attempted to influence employees views directly, and not through the filter of the Union, however  it did not necessarily follow that such conduct undermined freedom of association, or collective bargaining, or that it acted capriciously or unfairly  [29] . In relation to the argument regarding the conduct of the ballot of employees, the Full Bench found that there was no absolute requirement for the agreement of  bargaining agents to occur, prior to the conduct of a ballot, and this was particularly so when the parties had reached an impasse in the negotiations  [30]. Consequently, the decision below, which in effect permitted the ballot on the Enterprise Agreement proposals by the company, was not stopped from taking place.

This case provides more explanation of the detailed technical provisions under the Fair Work Act with this one concerning bargaining for new industrial instruments.  It also shows that such negotiations can be extensive, and like this case, can go for many months and comprise up to fifty negotiating meetings, without agreement or the prospect of having the disputed matters arbitrated . Such negotiations are not easy and may lead to agreement  by exhaustion.

Jones ats Queensland Tertiary Admissions Centre Limited (No.2), [2010] FCA 399 (29^th April 2010).

Justice Collier of the Federal Court of Australia, sitting at Brisbane, had earlier issued interlocutory orders restraining QTAC from taking any action against the Applicant, Ms Jones until the hearing of the substantive Application filed in these proceedings.  See Jones ats Queensland Tertiary Admissions Centre Limited (2009) FCA 1382, and also the comment published on this website on the 3 December 2009.

After having heard the substantive application, Justice Collier dismissed Ms Jones’ application.  Ms Jones, who was the Chief Executive Officer of QTAC, had been the subject of serious bullying allegations by individual employees of QTAC and the Australian Services Union (“ASU”) [1].  Ms Jones had claimed that the ASU had orchestrated a campaign against her, relevant to her conduct in the 2009 enterprise bargaining negotiations as spokesperson for QTAC. Further, that in taking adverse action against her, it was alleged that QTAC had yielded and continues to yield to this campaign by the ASU, in contravention of the Fair Work Act 2009.  Ms Jones had sought many orders in her application, amongst which was that her employer not act upon any investigation report received concerning her alleged behaviour.  Rejecting all these claims, Justice Collier said,

“[200] Further, I consider that QTAC’s actions were in no way related to any workplace rights of Ms Jones.  I consider that Ms Jones’ role as bargaining representative, and her participation in enterprise agreement negotiations, were completely irrelevant to QTAC’s reasons for the actions it took.

[201] It follows from this consideration that Ms Jones has not substantiated her claims against QTAC pursuant to s 340 of the Act.

In dealing whether there was any claim, Justice Collier made the following observations,

“ [9] It was common ground between the parties that Ms Jones bears the onus of proving she has a workplace right under the Act.  However, once an employee has established that he or she has a workplace right, and has been the subject of adverse action by the employer, the onus of proof shifts to the employer in respect to the reason for the adverse action by the employer.  At this point the onus is on the employer to demonstrate that the adverse action taken against the employee was not for a reason prohibited by the Act.

[10] That the employee is required to first prove the existence of objective facts which are said to provide a basis for the alleged adverse action before the onus shifts to the employer in respect of the prohibited reason was explained by Branson J in Construction, Forestry, Mining and Energy Union against Coal & Allied Operations Pty Limited (1999) 140 IR 131 at [161] – [162]. …….. It is not sufficient for Ms Jones to simply allege that she has a workplace right and that she has been the subject of adverse action – rather on the assumption that Ms Jones is able to prove these allegations, the burden is then cast on QTAC to prove that adverse action was not taken against Ms Jones because of her workplace rights for the purposes of s 340 and s 361 of the Act.”

In order to determine for what reason adverse action may have been taken against an employee , it is relevant to consider the subjective reason or  reasons for the taking of the impugned action by the employer, and if the employer is a corporation, of its directors [128].  Despite what was found in General Motors Holden Pty Limited  v  Bowling (1976)  12 ALR 605, even if all the directors who made the decision are not called, there can be sufficient evidence accepted of the motivation of the board of directors in acting as it did [167].  Her Honour found that the only reasons motivating the key directors of QTAC in taking adverse action against Ms Jones, was a concern for the organisation, that Ms Jones had been mistreating staff members, a belief that it was essential that action be taken by QTAC to investigate such allegations, and a wish to ensure that any investigation be conducted with proper procedure, including Ms Jones being given a reasonable opportunity to present her side of the story [168].  Her Honour also dismissed allegations that there had been a breach of contract and a failure to provide natural justice to Ms Jones.

Adverse action claims such as this under the Fair Work Act, will very much depend upon the finding of facts made by the trial judge and are a more problematic alternative remedy compared to bringing unfair dismissal proceedings before Fair Work Australia. If one’s advisers believe that an adverse action claim under the Fair Work Act is arguable  in the Federal Court  using the Court’s  accrued jurisdiction one might also consider pleading the economic torts of conspiracy, interference with contractual relations or intimidation ( see Latham v Singleton ( [1981] 2 NSWLR) 843 per Nagle CJ at CL)

McDonald’s Australia Enterprise Agreement 2009 [2010] FWA 1347. ( 23 rd April 2010)

Commissioner Donna “Big Mac” McKenna, formerly of the Industrial Relations Commission of New South Wales, now a Commissioner of Fair Work Australia, has rejected an Application filed by Mc Donald’s, for an Enterprise Agreement to cover its 80,000 employees, employed in all McDonald’s outlets in Australia. The Application under s 185 of the Fair Work Act filed by McDonald’s was supported by the union, the Shop Distributive and Allied Employees Association (SDA) which was closely involved in the making of the Agreement and supported its approval . The Commissioner handed down a 102 page judgment of 383 paragraphs, setting out many reasons why the approval of the proposed Agreement would be declined .

The length of the judgment is more telling, in that there was no contradictor in the case. The application for approval had been filed last December. The matter had been listed for hearing at various times earlier this year when the Commissioner had raised a number of preliminary concerns about the Application. In February this year, she made a Statement expressing further concerns about the proposed Agreement. The parties provided statutory declarations in addition to the material originally filed, in order to allay the concerns of the Commissioner.

The Commissioner’s judgment noted that a number of the declarations made by the Applicant were either insufficient or incorrect, which observation was admitted by the Applicant [6]. Notwithstanding the additional declarations, the Commissioner still found the Application deficient with respect to the provision of information required in support of such an application for approval [10]. The Commissioner considered the pre-approval requirements for an Enterprise Agreement found at s 180 of the Act. The deficiencies and failures individually identified by her would have been sufficient for her to reject the application let alone cumulatively. Of great concern to the Commissioner was that she found the pre-approval requirements under s 180 were not met. These requirements provide that employees need to have a free vote, in possession of all relevant information and explanation of the Agreement with special emphasis on McDonald’s employees, subject to some kind of disability such as their comparative youth, See sub-section 180(6). She could not find that the Agreement was one which the employees in question could have genuinely agreed (s 188),[84[ to [97] inclusive .

In dealing with the issue of whether the Agreement could pass “the better off overall test” (s 186(2)(d)), the Commissioner found that she could not be so satisfied. In considering this test, the Commissioner had regard to the previous industrial regulation applicable to employees at McDonald’s, which had largely been based on discreet industrial instruments in the States and Territories which regulated the minimum pay and conditions of employment for certain classes of employees [1]. The Commissioner had regard to what are called reference instruments, being the industrial instruments currently applicable to McDonald’s throughout the States and Territories in Australia [21] and [22].

Having regard to those pre-existing documents, she stated,

“I am not satisfied the multitude of disadvantages presented by the Agreement is, in a form of overall industrial equilibrium, offset by its marginal advantages. I do not consider the Agreement satisfies the no disadvantage test.” [357]

The depth of the Commissioner’s feelings in relation to the failure of the Agreement to pass this test also known as the no disadvantage test can be gleaned from some of the pejorative descriptors she used regarding aspects of the proposed Agreement. She said,“… the Agreement allows potentially quite exploitative arrangements for rostering of employees—“ [118]; “— the Agreement would provide only flat hourly rates for casual employees in the Territories. This would represent a significant financial disadvantage of around 20% on the hourly rate as against the reference instruments.” [141]; “— wages would be decreased for certain classes of employees.” [155]; “— the Agreement appeared to displace, remove, omit or reduce conditions that would have applied under the reference instruments.” [296]; “An examination of the wage rates shows that in the case of Queensland employees, the starting wage rate for level 1 employees is said to compensate, in an overall sense, for the loss of a range of conditions under the reference instrument is no more than the standard national minimum of $543.78 a week.” [299]; “However, if the adjustments are considered over the life of the Agreement, the adjustments are, in some instances, less than the national minimum adjustment.” [306]; “While I accept the Agreement contains a mix of advantages and disadvantages, I have concluded the Agreement would represent an emphatic diminution in overall terms and conditions for the employees who would be subject to its proposed operation.” [379].

As a parting shot at McDonald’s, in the final paragraph of the judgment, the Commissioner referred a copy of the decision to be sent to the Fair Work Ombudsman to investigate evidence which would suggest that the Applicant or its licensees, or both, may have been underpaying some employees. [383].

The cheapest item for sale at McDonald’s restaurants is the 50c soft serve cone. Commissioner McKenna gave the parties, particularly the bargaining agent the SDA, a serve but certainly not a soft one. This rebuke , a particularly embarrassing one to the SDA, is a reminder that tribunals such as Fair Work Australia will not rubber stamp Agreements. Over twenty years ago during the days of the Wages Accord the Federal Commission investigated wage deals in industrial instruments, which were suspected to have provided wage increases in excess of those permitted under the wage fixation principles . It appears now that a not insignificant part of Fair Work Australia’s duty is to investigate the converse .

Director General, New South Wales Department of Health v. Industrial Relations Commission of New South Wales [2010] NSWCA 47 (22 March 2010).

The New South Wales Court of Appeal has acted swiftly in the wake of the High Court decision of Kirk v. Industrial Relations Commission (NSW) [2010] HCA 1 in making orders against a decision of the Full Bench of the Industrial Relations Commission of New South Wales. Hitherto, one would have thought, the IRC decision would have been protected by the privative provisions of the Industrial Relations Act, s.179. This case involved an unfair dismissal claim squarely within the arbitral jurisdiction of the Industrial Relations Commission not the Industrial Court. It concerned a ward orderly in a public hospital who was summarily dismissed after taking a photograph of a naked two year old patient. He brought an unfair dismissal claim which at first instance was rejected. He appealed and the Full Bench allowed the appeal. The matters which were challenged before the Court of Appeal were the form of orders made by the Full Bench. Those orders were not to reinstate but to re-employ the Applicant in his former position. Further, it was ordered that he would not return to work and would resign in writing effective from the day immediately following the date of the decision. However, he was awarded his wages he would have received had be remained at work in the two year period from dismissal to the date of the Commission order.

The Court of Appeal considered the powers which the Commission could exercise under s.89 of the Industrial Relations Act and found that the Full Bench erred in relation to the exercise of the powers available to it . Writing the judgment on behalf of the Court, Chief Justice Spigelman found “both jurisdictional error and error of law on the face of the record”. He did this on three bases. Firstly, the order to re-employ the ward orderly was not authorised by the statute ,that is, to have him re-employed in his former position, secondly, the Full Bench failed to make findings essential as a pre-condition to the exercise of the statutory power and thirdly, a condition requiring a person to resign and not return to work was outside the permissible sphere of any order capable of answering the description of an order to “re-employ”. [22]

This case is a firm assertion by the Court of Appeal of its supervisory jurisdiction. The Chief Justice found that the orders made by the Commission misconstrued the statute and disregarded “both the nature and the limits of its functions and powers and made an order of a kind which lies outside the theoretical limits of its powers” (see Craig v. South Australia [1995] HCA 58). As a consequence he applied the test for the exercise of supervisory jurisdiction over an inferior Court. [24]

It is quite clear that the Court of Appeal will not be exercising the reserve it once had in relation to privative clauses and in particular privative clauses seeking to preserve the orders made by the Industrial Relations Commission of New South Wales even in industrial matters. In Dow Corning Australia Pty Ltd v. Monk & Ors [1984] 3 NSWLR 13, Justice Hutley, writing in the majority, refused to intervene in relation to an unfair dismissal order made by the Industrial Relations Commission. He said this was for the following reason; “It seems to me that where there is a colourable basis for claiming a matter is an industrial matter, or relates to an industrial matter, then the privative clause operates and the Supreme Court has no jurisdiction.”

In a speech delivered by Chief Justice Spigelman to the AGS Administrative Law Symposium, Commonwealth and New South Wales on 25 March 2010, dealing with the Kirk matter, His Honour said that the Kirk case will engage administrative lawyers for years. In that paper, he sets out that it will be easier to have the Supreme Court exercise its supervisory jurisdiction now that decisions purportedly protected by privative provisions have been rendered more open absent the tighter restrictions formerly imposed by the so called Hickman Principles. Now the supervisory jurisdiction of the Court of Appeal has been extended to unfair dismissal matters. It will also mean that other industrial matters well within the industrial arbitral role of the Commission will no longer be protected and final, but will be reviewable on the basis of jurisdictional error or error of law.

1. (1984) 3 NSWLR 13 at 17 F. See also Young v. Public Service Board [1982] 2 NSWLR 456 and Slattery v. Public Service Board [1983] 3 NSWLR 41 and Houssein v. Under-Secretary of Department of Industrial Relations & Technology (NSW) (1982) 148 CLR at 88.

Kirk & Anor ats WorkCover Authority of New South Wales [2010] HCA 1 (3 February 2010) .

In its first decision of 2010, the High Court has handed down a very important judgement concerning  the conduct of occupational health and safety prosecutions in New South Wales.  The High Court has rebuked both the WorkCover Authority and the Industrial Court of New South Wales  not only in  the way this case was dealt with, but also in the way others have been handled for many years.  The Appellants before the High Court were a company and its director, Mr Kirk.  The company owned a farm and as Mr Kirk had no farming experience he left the day-to-day operation to a manager.  Whilst so engaged, the manager, rather than use a formed and safe road, drove an off-road vehicle down the side of a hill, it overturned and the manager was killed.  The manager who had far more experience and skill than Mr Kirk had his behaviour described by Justice Heydon as being “inexplicably reckless.” [125]. The reporting of this case has gone beyond the normal legal journals and has been widely reported in the general press.

In the Legal Affairs section of The Australian on the 5 March 2010, it was reported that the conviction rate for Defendants charged under this Act before the Industrial Court of New South Wales has been running at 98.4%.  That rate is said to be well above the conviction rates in other States dealing with comparable workplace safety laws.

The judgment contains a combined decision of their Honours French CJ, Gummow J, Hayne J, Crennan J, Keifel J and Bell J and a single judgment  by Justice Heydon.  The tone of Justice Heydon’s judgment is such that he must have felt compelled to state his own firm views as to how both the Prosecutor and the Court had fundamentally misconstrued their respective obligations.

The combined judgment considered the nature of the offences created by the statute and the charges brought against the Appellants.  A criticism of the charges, perhaps recalling the fate of Josef K in The Trial by Kafka was that “they did not quote or identify the deficiency in the system or the measures that should have been taken to address it.” [28]. The charges lacked the relevant particularity which at common law, was said to be necessary in order to provide a valid summons or information.  What the charges did not provide was the necessary step which was to “identify the measure which the employer should have taken as relevant to the offence.”  An examination of the decision of the Industrial Court is consistent with the cases in that Court which are said to “establish the proposition that a Prosecutor is not required to demonstrate that particular measures should have been taken.” [32].

The problem for the Industrial Court on the issue regarding the provision of particulars started with the single judge decision in WorkCover Authority v Fernz Construction (1999) 91 IR 119 @132 which was more keenly  followed rather  than the more traditional criminal pleading principles  found in  the  Full Bench and trial judge’s  decisions in Boral Gas (NSW) Pty Ltd v Magill (1995) 58 IR 363;(1993) 53 IR 7.

Importantly at paragraph [34] of the combined judgment the following is stated:

“Walton J referred to earlier case law that the duty imposed upon an employer “is to be construed as meaning to guarantee, secure or make certain” and that the duty is directed at obviating “risks” to safety at the workplace.  References to guarantees, an emphasis upon general classes of risks which are to be eliminated, tend to distract attention from the requirements of an offence against ss 15 and 16.  The approach taken by the Industrial Court fails to distinguish between the content of the employer’s duty, which is generally stated, and the fact of the contravention in a particular case.  It is that fact, the act or omission of the employer, which constitutes the offence.  Of course it is necessary for an employer to identify risks present in the workplace and to address them, in order to fulfil the obligations imposed by ss 15 and 16.  It is also necessary for the Prosecutor to identify the measures that should have been taken.  If a risk was or is present, the question is – what action on the part of the employer was or is required to address it?  The answer to that question is the matter properly the subject of the charge.”

The combined judgment further criticised the judge below in that by not requiring the particular measures that should have been taken to have been pleaded, the Defendant company and its director were unable  then to  call upon the operation of the statutory defences.  Rather, the Defendant company and its director was required to show why it was not reasonably practicable to eliminate possible risks associated with the use of the off- road vehicle.

Wrongly, the operation of the statutory defence was confined by the trial judge to the issue of foreseeability [38].

The combined judgment also recognised a further error in that Mr Kirk was called by the Prosecution as a witness even though that course had been agreed by both sides [50].  This problem partly arose out of the fact that Mr Kirk was a competent witness against his company.  The fact that he was called in the case against himself was contrary to the Evidence Act, as against himself he was not competent to give evidence as a  witness for the Prosecution [51].  It was said this departure from the rules of evidence was  substantial.

The combined judgment also dealt with more technical issues dealing with jurisdictional error and the privative provision found in s 179 of the Industrial Relations Act NSW which purportedly protects decisions of the Industrial Court from appellate review.  It was said that such finality or privative provisions have been a prominent feature in the Australian legal landscape for many years; however, they are affected by constitutional considerations [93].  It was said that the supervisory role of State Supreme Courts to control the exercise of State executive and judicial power by persons and bodies other than the Supreme Court was one of the defining characteristics of such courts [98]. If it deprives State Supreme Courts of this power it would be to “create islands of power immune from supervision and restraint” and develop “distorted positions.” [99]. Importantly, legislation that would “take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power.” [100].Clearly and loudly it has been stated that  the Industrial Court is a court sub-ordinate and  subject to the supervisory jurisdiction of the Supreme Court of New South Wales. [102].

Justice Heydon agreed with the substance of the reasons stated in the combined judgment but separately provided a  forceful  decision.  Perhaps more accurately he fashioned  two  lightning bolts hurled Thor-like  in the direction of the WorkCover Authority and the Industrial Court.  The fact that the Prosecution called Mr Kirk as its own witness in a criminal case was in defiance of the prohibition to do so in s 17(2) of the Evidence Act , therefore the trial was conducted not in accordance with the rules of evidence  [114]. This failure to follow the rules of evidence amounted to jurisdictional error  [115]. Sub- section 17(2) of the Evidence Act was an absolutely fundamental rule underpinning the whole accusatorial and adversarial system of criminal trial in New South Wales [115].

One of the major attacks he made was on an issue that the trial judge had found as crucial.  That matter was that Mr Kirk “Did not supervise the daily activities of the employees or contractors working on the farm.”  To that Justice Heydon said,

“The suggestion that the owners of farms are obliged to conduct daily supervision of employees and contractors – even the owners of relatively small farms like Mr Kirk’s – is, with respect, an astonishing one.  A great many farms in Australia are owned by natural persons who do not reside on or near them, and a great many other farms are owned by corporations, the chief executive officers of which do not reside on or near them — (it) being offensive to a fundamental aspect to the rule of law on the ground that it imposed obligations which were impossible to comply with and burdens which were impossible to bear.”  [120].

Justice Heydon then went on to describe the next striking aspect of the proceedings before the Full Bench of the Industrial Court.  [121]. The Full Bench described the Appellants’ earlier application to the Court of Appeal as “forum shopping.” He said it was inappropriate to describe the conduct of litigants who, aggrieved by the decision of a court of New South Wales attempted to remedy it by making an application to the Court of Appeal  [121].  This amounted to “an assertion of exclusive dominion over the fields within its jurisdiction and did not recognise that the Industrial Court was controllable by the Court of Appeal and that the Industrial Court was bound, both its trial judges and Full Bench to follow the law as stated by the Court of Appeal.  [121].  ….its merits should not have been the subject of pejorative language.”  [121].  This led in turn to Justice Heydon stating how sometimes the  legislature elects to create separate or specialist courts to determine particular types of litigation.  [122]. He said some specialist courts “tend to lose touch with the traditions, standards and mores of the wider profession and judiciary.”  And, that they become over-enthusiastic about vindicating the purposes for which they were set up and exult that purpose above all other considerations. At [122] He cited Walker on the Rule of Law (1988)( at p 35) as follows:

“History teaches us to be suspicious of specialist courts and tribunals of all descriptions.  They are usually established precisely because proceedings conducted in accordance with normal judicial standards of fairness are not producing the outcomes that the government wants.  From the Court of Star Chamber to the multitude of military courts and revolutionary tribunals in our own century, this lesson has been repeated time and time again.”

This judgment comes at a difficult time for the Industrial Court and provides much guidance to the WorkCover Authority of New South Wales.  The difficult time for the Industrial Court is that it is a court and a tribunal under siege. It has been slowly reduced in its scope by state legislative change and more profoundly  by the Howard government’s WorkChoices Legislation. The effect of which has been enhanced by the State government and the passing late last year of  the Industrial Relations (Commonwealth Powers) Act 2009) which transferred the rest of  NSW employers to the national system save for employers in the public sector and local government. Importantly, the harmonisation of occupational health and safety laws is something which will come about in the next few years. Justice Heydon’s criticism of the Court not being one where people with wide criminal law experience are to be found may be a telling reason why the occupational health and safety jurisdiction may be transferred to one of the ordinary courts such as the District or Supreme Courts or both.  The Industrial Court has at least 12 to 18 months to recognise its position in the hierarchy of courts in New South Wales and to  be of good behaviour should it wish to retain this important part of its jurisdiction .

The WorkCover Authority’s role in the prosecutions and  in turn the Department of Mineral Resources and indeed secretaries of trade  unions   with the advent of harmonisation of occupational health and safety laws  need to be  calmly considered as to  whether it is appropriate  they  continue to have the right to prosecute.  The right to prosecute may better be given to the Director of Public Prosecutions, an independent prosecutorial body perhaps better placed and more used to prosecuting breaches of the criminal law.  Rumour has it that the WorkCover Authority is reviewing all its current investigations and prosecutions . To overcome its past failures and the erroneous application of the safety laws as revealed by the High Court, the  WorkCover Authority  ought have a close consideration of closed files where the have been bad convictions and sentences imposed particularly against individuals .The provisions of the Crimes (Appeal and Review ) Act 2001 , may assist the Authority to show true remorse and provide an avenue for some of the unfairly treated personal defendants to have their convictions quashed and  receive a pardon .