The slough of despond
The High Court has refused Gough & Gilmour special leave to appeal against the NSW Court of Appeal judgment denying jurisdiction for the dealership agreements and related matters pursuant to s 106 of the Industrial Relations Act 1996 (NSW). See “Casenote: Nothing fails like success”, being an analysis of the Court of Appeal’s judgment.
Counsel for the Applicant, Mr Brett Walker SC, could not have been heartened by the first question posed by Justice Gummow. He was asked:
“Before we descend into this pit, what do you say about the provisions of s 26 of the Fair Work Act 2009 (Cth) and s 7 of Independent Contractors Act 2006 (Cth)?”
This question recalls the bog found in Pilgrims’ Progress.
Those two provisions have all but abolished the jurisdiction that the unfair contracts jurisdiction can perform in New South Wales other than for partnerships, natural persons and State government bodies.
The Respondent had argued that any public interest which the case may have had had vanished as a result of the Federal legislation denying the force of the State Act to corporations.
The development of this jurisdiction has come a long way from the judgment of Chief Justice Barwick in Stevenson v Barham (1977) 136 CLR 190 when his Honour said (at 192):
“Notwithstanding the wide language of s 88F, I have difficulty in becoming convinced that it was within the contemplation of the legislature that agreements for business ventures, of which the present may be a specimen, freely entered into by parties in equal bargaining positions, should be so far placed within the discretion of the Commission as to be liable to be declared void. However, I have come to the conclusion that the language of s 88F of the Act is intractable and must be given effect according to its width and generality. The legislature has apparently left it to the good sense of the Industrial Relations Commission not to use its extensive discretion to interfere with bargains freely made by a person who is under no constraint or inequality or whose labour was not being oppressively exploited.”
What has happened recently is that despite the “intractable language”, arguments which look to the substance not to the form of the agreement sought to be set aside, have become crucial. The industrial flavour of the contract or arrangement has given way to the size and extent of the operations under which the contract is being performed. In submissions before the High Court, Mr Ian Jackman SC (Hugh’s brother) suggested that “the matter remains one of substance not form, hence one might treat differently the individual truck driver with his private contract from the way in which one treats a distributorship employing 700 people or 350 people” (at p 11).
In finally dealing with the matter, Chief Justice French, in refusing leave said:
“The dealership agreements did not fall within s 106 because of the industrial context to which it applies. The Court of Appeal generally applied principles established by this Court in three cases on s 106 of the Act (Fish v Solution Six Holdings Limited [2006] HCA 22; Batterham v QSR Ltd [2006] HCA 23; Old UGC Inc v Industrial Relations Commission of New South Wales in Court Session [2006] HCA 24) and also took into account the legislative changes which had not applied in those three cases (see s 106(2A)).”
The original cases referred to as trucking cases will continue to be considered, not by the Industrial Court of New South Wales, but more likely by the Federal Magistrate’s Court and/or the Federal Court pursuant to the provisions of the Independent Contractors Act 2006.
