Inspectors can act on pre-WorkChoices breaches

Cases

Inspectors can act on pre-WorkChoices breaches

The Federal Court has ruled that workplace inspectors appointed under the WorkChoices amendments have power to bring proceedings in relation to matters arising under the pre-WorkChoices regime.

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The Federal Court has ruled that workplace inspectors appointed under the WorkChoices amendments have power to bring proceedings in relation to matters arising under the pre-WorkChoices regime.

Effective from 27 March 2006, the Workplace Relations Act was substantially amended by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth). The inspectorate was restructured under the changes.

Background

The applicant was a workplace inspector appointed under s167(2) of the New Act. The respondents say the applicant did not have power to bring this proceeding in respect of contraventions of the Old Act.

In this proceeding it was alleged that in and between September and December 2005 the respondents contravened s170WG of the Workplace Relations Act 1996 (Cth) by applying duress to some of Zinifex’s employees in connection with an Australian Workplace Agreement (AWA).

Inspectors powers confirmed

Justice Heerey concluded:
‘… The High Court (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ) unanimously held [in relation to a case involving a criminal code] …:
 
‘... ordinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity. A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial.

'In the present case, the respondents in September–December 2005 either did or did not apply duress in relation to AWAs. If they did, they incurred a substantive obligation, the liability to such penalty as might be fixed by a court.'

'They did not acquire any substantive right to have that obligation ascertained in some particular way, or only at the suit of some particular person or class of persons, any more than they acquired the right to be tried only by the law of evidence as it stood in December 2005 …

'In any event, the presumption against retrospectivity is no more than that, a presumption which must yield to a clear expression of intent to the contrary.

'An issue of retrospectivity raises the question whether a law which on its face applies equally to past and future events must be read down as to apply only to the latter. In its terms reg 2.14 is solely concerned with involvement in proceedings for alleged contraventions under the Old Act. Such contraventions can only have happened before reg 2.14 came into operation. The whole purpose of reg 2.14 is to deal with past events …’

Smith v Zinifex Australia Limited [2008] FCA 532 (24 April 2008)


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