WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT. Delivered: 14 April 1994. CORAM: KENNEDY J. (PRESIDENT), FRANKLYN & ANDERSON J.J. Appeal No. 17 of 1993. Between: The Federated Miscellaneous Workers Union of Australia, WA Branch Appellant and Nappy Happy Hire Pty Ltd T/A Nappy Happy Service. Respondent. Catchwords Industrial law—Western Australia—unfair dismissal— whether power in Commission to order compensation in the event of there being no order for reinstatement or re- employment. Mr R.L. Le Miere QC (instructed by Dwyer Durack) appeared for the appellant. Mr H.J. Dixon (instructed by Birman & Ride) appeared for the respondent. Cases referred to in judgments: Attorney General (NSW) v. Perpetual Trustee Co Ltd (1952) 85 CLR 237 Babaniaris v. Lutony Fashions Pty Ltd (1987) 163 CLR 1 Coles Myer Ltd t/as Coles Supermarkets v. Coppin (1993) 73 WAIG 1754 Gcelong Harbour Trust Commissioners v. Gibbs Bright & Co (1970) 122 CLR 504 Grain Elevators Board (Vic) v. Dunmunkle Corpora- tion (1946) 73 CLR 70 Jones v. Secretary of State for Social Services [1972] AC 944 Kalwy v. Secretary, Department of Social Security (1992) 38 FCR 295 Kounis Metal Industries Pty Ltd v. Transport Workers' Union of Australia, Industrial Union of Workers, Western Australian Branch (1992) 73 WAIG 14 Nguyen v. Nguyen (1990) 169 CLR 245 Perpetual Executors and Trustees Association of Australia Ltd v. Federal Commissioner of Taxa- tion (1949) 77 CLR 493 Queensland v. The Commonwealth (1977) 139 CLR 585 Robe River Iron Associates v. Association of Draught- ing, Supervisory and Technical Employees of Western Australia (1987) 68 WAIG 11 Slonim v. Fellows (1984) 154 CLR 505 Western Australia v. The Commonwealth (1975) 134 CLR 201 Cases also cited: Re Amalgamated Metal Workers Union of Australia; ex pane Shell Co of Australia Ltd (1992) 174 CLR 345 Australian Glass Manufacturing Co Pty Ltd v. Trans- port Workers' Union of Australia Industrial Union of Workers Western Australian Branch (1992) 72 WAIG 1499 Australian Health Insurance Association Ltd v. Esso Australia Pty Ltd (1993) 116 ALR 253 Australian Sugar Producers' Association Ltd v. Austra- lian Workers' Union (1917) 23 CLR 58 Board of Management, Princess Margaret Hospital for Children v. Hospital Salaried Officers Assocation of WA (1975) 55 WAIG 543 Cliffs WA Mining Co Pty Ltd v. Association of Architects, Engineers, Surveyors and Draughts- men (1978) 58 WAIG 486 Re Cram; ex pane New South Wales Colliery Proprietors' Association Ltd (1987) 163 CLR 117 Re Cram; ex pane Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140 Downey v. Trans Waste Pty Ltd (1991) 65 ALJR 327 1494 , WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 74 W.A.I.G. Federated Clerks' Union of Australia v. Victorian Employers' Federation (1984) 154 CLR 472 Re Federated Storemen and Packers Union of Austra- lia; ex pane Wooldumpers (Victoria) Ltd (1989) 166 CLR 311 Fountain v. Alexander (1982) 150 CLR 615 Inland Revenue Commissioners v. Maple & Co (Paris) [1908] AC 22 Jackson v. Sterling Industries Ltd (1987) 71 ALR 457 Kwinana Construction Group Pty Ltd v. The Electrical Trades Union of Workers (Western Australian Branch) (1954) 34 WAIG 51 Re Manufacturing Grocers' Employees Federation of Australia; ex pane Australian Chamber of Manu- factures (1986) 160 CLR 341 Re Media Alliance; ex pane Hoyts Corporation Pty Ltd (1993) 115 CLR 321 Metropolitan (Perth) Transport Trust v. Gersdorf (1981) 61 WAIG 611 Miles v. Federated Miscellaneous Workers' Union of Australia (1985) 65 WAIG 385 Norton Tool Co Ltd v. Tbwson [1973] 1 All ER 183 Parsons v. Martin (1984) 58 ALR 395 R v. Marshall; ex pane Baranor Nominees Pty Ltd [1986] VR 19 The Queen v. Coldham; ex pane Australian Social Welfare Union (1983) 153 CLR 297 Royal Children's Hospital v. President, Industrial Relations Commission of Victoria [1989] VR 527 Secretary, Department of Foreign Affairs and Trade v. Bos well (1992) 108 ALR 77 St Justins Properties Pty Ltd v. Rule Holdings Pty Ltd (1980) 40 FLR 282 Tooheys Ltd v. Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 Wardleys v. Western Australia (1992) 109 ALR 247 KENNEDY J I have had the advantage of reading in draft the reasons to be published by Franklyn and Anderson JJ. For the reasons which their Honours give, I have concluded that this Court should not now overrule its decision in Robe River Iron Associates v. Association of Draughting, Supervisory and Tfechnical Employees of Western Australia (1987) 68 WAIG 11 (Pepler's case), a decision which has been followed by this Court on two occasions, in Kounis Metal Industries Pty Ltd v. Transport Workers' Union of Australia, Industrial Union of Workers, Western Australian Branch (1992) 73 WAIG 14 and Coles Myer Ltd t/as Coles Supermarkets v. Coppin (1993) 73 WAIG 1754, and which has been applied in die Industrial Relations Commission. As I observed in Pepler's case, at 17, my conclusion in that case was not one which I had reached without difficulty. I then expressed the view that if the Parliament desired the Commission to have the power which is now contended for, it should legislate to that effect, as indeed it had already done in the limited context of s 961 of the Industrial Relations Act 1979. Notwithstanding the practice in other States of making specific provision in die relevant legislation for the exercise of the power in question, Parliament has not seen fit to act. On the contrary, by s 23A of the Act, inserted by the Industrial Relations Amendment Act 1993, Parliament has effectively accepted the decision in Pepler's case, albeit with one slight modification, which confers an express power on the Commission, where an employer fails to comply with an order to reinstate or re-employ a claimant, to revoke that order and, in accordance with the section, to make an order for the payment of compensation for loss or injury caused by the dismissal—see sub-s (3). That section is limited to cases where there has been a referral to the Commission of a claim by an employee of harsh, oppressive or unfair dismissal. If Pepler's case were now to be overturned, the present proceedings having been instituted by the appellant, a union, the consequence would be that a union could secure an award of compensation, without reinstatement or re-employment, whilst an employee, acting on his own behalf, could not do so unless the employer failed to comply with an order for reinstatement or re-employment. As to the use of subsequent amendments in the construction of legislation, see Grain Elevators Board (Vic) v. Dun- munkle Corporation (1946) 73 CLR 70 and Kalwy v. Secretary, Department of Social Security (1992) 38 FCR 295. FRANKLYNJ I have read the reasons for judgment of Anderson J with which I agree. Like him I am of the view that the appellant has raised cogent arguments in support of its submission that Pepler's Case 68 WAIG 11 "Pepler's Case 68 WAIG 11" be overruled. They are not so persuasive however as to reveal that the decision was plainly wrong. The issue they raise is one of construction. The decision in that case was given in 1987 after argument by experienced counsel and with carefully considered reasons by the individual mem- bers of the Court. It has since been followed on a considerable number of occasions. It is a decision upon which, no doubt, persons and organisations have since arranged their affairs. It would seem to have legislative acceptance, no attempt having been made to legislate so as to remove or alter its effect, although numerous other amendments to the Industrial Relations Act 1979 have since been enacted. It cannot be said to result in injustice in that compensation for unfair dismissal may still be obtained through the courts. It seems to me that in those circum- stances the need to have certainty in the law and to protect the integrity of acts and transactions which have taken place in reliance upon it require that it not be departed from. All of those circumstances were accepted as reasons why a previous decision of a court should not be overruled in Jones v. Secretary of State for Social Services (1972) AC 94 "Jones v. Secretary of State for Social Services (1972) AC 944". It was there also said by the majority that the power to overrule is to be used sparingly and will rarely be used to reconsider the construction of a statute (Lord Reid at 966, Lord Morris of Borth-Y-Gest at 973, Lord Wilberforce at 995, Lord Pearson at 996, Lord Simon of Glaisdale at 1024). The same attitude to earlier decisions and specifically to decisions based on statutory construction was demonstrated by the High Court in Geelong Harbour Trust Commissioners v. Gibbs, Bright and Co (1970) 122 CLR 504 "Geelong Harbour Trust Commissioners v. Gibbs, Bright and Co (1970) 122 CLR 504" (see McTieman and Menzies JJ at 517 and 518). Hie need to maintain consistency in the law is emphasised in the reasons for decision in Queensland v. The Commonwealth (1977) 139 CLR 585 "Queensland v. The Commonwealth (1977) 139 CLR 585", where, al- though a majority considered the decision under considera- tion—(Western Australia v. Commonwealth (1975) 134 CLR 201 "Western Australia v. Commonwealth (1975) 134 CLR 201")—to be wrong, the court refused to overrule it. In that case Gibbs J said at 599: "It would be futile to attempt to state any succinct general principle by which the Court should be guided in deciding whether to overrule an earlier decision of its own. Some cases may be clear enough. On the one hand the Court would be slow to disturb a decision which applied a principle that had been carefully worked out in a succession of cases, and had been more than once reaffirmed. On the other hand, a judgment which had been given per incuriam, and was in conflict with some other decision of the Court, or with some well-established principle, might be readily reviewed.'' It is also important, I think, to point out, as was done in Queensland v. The Commonwealth (supra) by Mason and Stephen JJ, that the fact that a court might disagree with an earlier decision of the Court, differently constituted, does not in every case mean that the earlier decision was wrong. As Stephen J said at 603: "The case was very much one upon which different minds might reach different conclusions, no one view being inherently entitled to any pre-eminence as conforming better than others to principle or to precedent." The present case is, in my view, such a case and it cannot be said that the statute was obviously misconstrued in Pepler's Case or that the decision is plainly wrong. It is consequently not such a case as was considered in 7- i>fflaeMMaagBMWciiii;#^ifeTMWimiaiiafeiigtEiwaMMa l >5 Babaniaris v. Lutony Fashions Pty Ltd (1987) 163 CLR 1 "Babaniaris v. Lutony Fashions Pty Ltd (1987) 163 CLR 1". That the attitude of the courts has not changed is clear from the statement of Dawson, Toohey and McHugh JJ in Nguyen v. Nguyen (1990) 169 CLR 245 at 269 "Nguyen v. Nguyen (1990) 169 CLR 245 at 269'' quoted by Anderson J. I also refer to the article by Lyndel V Prott "When Will A Superior Court Overrule Its Own Decision" 52 ALJ 304 to which I am indebted as identifying a number of the relevant decisions. I would dismiss the appeal. ANDERSONJ This is an appeal from a decision of the Full Bench of the Industrial Relations Commission upholding an appeal from a decision of Senior Commissioner Halliwell ordering the respondent employer to pay amounts of $35,800 to each of two former employees and $44,300 to another two. The Senior Commissioner had made that order after a hearing pursuant to s.44 of the Act in which the appellant claimed that the four employees had been unfairly dismissed from their employment and ought to be reinstated without loss of entitlements or alternatively paid compensation. The appeal raises again the question of the jurisdiction of the Commission, in a reinstatement case, to award compensa- tion for unfair dismissal without also ordering re-employ- ment. The grounds of appeal effectively invite the court to reconsider the line of cases in which the court has held that there is no jurisdiction to order an employer to pay money in the nature of compensation to former employees who have been unfairly dismissed, unless the order is ancillary to an order for re-employment. Pepler's Case 68 WAIG 11 "Pepler's Case 68 WAIG 11"; Kounis Metal Industries Pty Ltd v. Transport Worker's Union 73 WAIG 14 "Kounis Metal Industries Pty Ltd v. Transport Worker's Union 73 WAIG 14"; Coles Myer Ltd t/a Coles Supermarkets v. Coppin 73 WAIG 1754 "Coles Myer Ltd t/a Coles Supermarkets v. Coppin 73 WAIG 1754". The respondents business had been to operate a nappy service involving the collection and laundering of soiled nappies and the supply on hire of clean nappies. The four workers concerned had been employed to fold freshly laundered nappies by hand. The terms and conditions of their employment were governed by the Laundry Workers Award No. 29 of 1981 but none of the workers was a member of a union. In July 1992 they joined the appellant union, which attended at the work place and made what appear to have been routine requests for time and wages records. Shortly thereafter the union wrote to the respondent alleging breaches of the Award relating to the employment of the four workers. This was followed by discussions between the appellant and respondent that appear to have been inconclusive. It was also followed by certain conduct by the respondent that caused the four workers to fear for their jobs. In the first place the respondent gave a notice to all employees that, because of the appellant's activities, there would be changes to work conditions. A few days later, on 26 August 1992, the respondent notified its employees that it required them to enter into fresh contracts of employment by signing at the foot of a form of letter of employment accompanying the notice "...by the completion of work on the 31 August, 1992." The appellant reacted to this by lodging an application with the Commission the next day, seeking an urgent compulsory conference "...to prevent the further deterioration of industrial relations between itself and the ... employer." In that application the appellant claimed that the proposed fresh contract was unnecessary and that it sought to impose harsh and unfair conditions on existing employees. The appellant sought an order that the respondent be prevented from requiring the workers to sign the fresh contract. The following day each of the workers was dismissed with two days pay in lieu of notice. The application for the compulsory conference was successful and a conference was held on the morning of 31 August before Senior Commissioner Halliwell. By this time, of course, the termination of the employment of the four workers had taken effect and this somewhat altered the nature of the matters in issue between the parties, at any rate as regards the four dismissed workers. The conciliation conference before the Senior Commis- sioner failed to resolve the controversy and the matter proceeded by way of hearing and determination pursuant to a direction of the Senior Commissioner under s 44(6)(ba). The arbitration thus initiated became rather protracted. The issues for determination were set out in a document dated 1 October 1992 headed ' 'Final Memorandum of Matters For Hearing and Determination". As appears from this docu- ment the appellant by this time contended that the workers had been unfairly dismissed and ought to be reinstated without loss of entitlements; alternatively that they should be paid compensation "...for their unfair dismissals...". The respondent denied that the dismissals had been unfair and opposed the claims for reinstatement and compensation. Shortly after the dismissals, the respondent disposed of its entire business operations to another apparently unrelated company in a transaction conceded by the appellant to have been genuine. The Senior Commissioner found the dismissals to have been "harsh and unfair" and, had it been practicable to do so, he would have made an order for re-employment. He did not, but it is obvious the only reason he did not was because it was, as he said, ".. simply not open to the Commission at all as the offending employer has gone out of business...". He then stated that the only "remedy" available in the circumstances was the awarding of "...a payment of compensation for the unfair dismissal of the employees from their employment." The orders mentioned above were then made. On appeal the Full Bench of the Commission held that the Commission was bound by the line of decisions in this court to which I have referred that are to the effect that an award of compensation was beyond jurisdiction unless ancillary to a substantive order for reinstatement. The appeal was upheld and Senior Commissioner Halliwell's orders were quashed. When the appellant lodged the s 44 application seeking a compulsory conference and when Senior Commissioner Halliwell made the order referring the matter to arbitration there was in existence an "industrial matter" within the meaning of s 23 of the Act. There was a conflict between union and employer about matters affecting or relating to the work, privileges, rights and duties of the four workers. Pursuant to the jurisdiction expressly conferred by s 23 the Commission had "...authority to enquire into and deal with..." that matter. The termination of the contracts of employment of the workers involved in the matter did not place the controversy beyond the jurisdiction of the Commission. The nature of the dispute between the parties (union and employer) changed but the dispute continued and did not lose its industrial character. It became a dispute as to whether the manner and circumstances of dismissal of the workers was industrially unfair. That the Commission has power to grant relief or redress, in the exercise of its jurisdiction to deal with industrial matters, is not in doubt, s 26(2). It is clear that a matter relating to the dismissal of a person may be an industrial matter for the purposes of the Act. See the definition of "industrial matter" in s 7(c). Quite apart from the express recognition of that in the definition of "industrial matter" it is anyway not easy to see why the continued existence of the industrial matter should necessar- ily depend on the continuation of the contract of service. In reality a dispute between a union and an employer over the rights and privileges of a certain worker or category of workers would not often end with the dismissal of that or those workers. As Murphy J pointed out in Slonim v. Fellows (1984) 154 CLR 505 "Slonim v. Fellows (1984) 154 CLR 505" at 511-512: "The termination of the relationship of employer and employee does not preclude the existence of industrial claims, matters, and disputes. Industrial history shows that many bitter, prolonged and costly industrial disputes have occurred when the employ- ment has been terminated." Once it is accepted that an industrial matter in the form of a dispute between a union and an employer may continue notwithstanding the dismissal of the particular workers in 1496 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 74 W.A.I.G. relation to whose employment the dispute originally arose it must be accepted that the jurisdiction of the Commission may also survive that dismissal. The doctrine laid down in Pepler's Case is not that the authority of the Commission ceases with the cessation of the employment, but that there is a limitation on the powers of the Commission in such circumstances, in the particular way the Commission may thereafter "deal" with the matter. Kennedy J put it in the following way at page 18 of the report: "Furthermore, to deny the power (of the Commis- sion) to order compensation...is not to deny the Commission the power to deal with the industrial matter. It is simply to deny that its power to do so is unconstrained in any manner. It may deal with a complaint of unfair dismissal in the most appropriate manner, by ordering re-employment in an appropriate case." This must mean that the continuation of the contract of service is not a jurisdictional fact. It is not easy to see how jurisdiction can be affected by changes to facts upon which jurisdiction does not depend although, obviously, particular remedies that might be appropriate on a given state of facts might not be appropriate should the facts change. As long as the jurisdiction of the Commission continues in respect to a matter on the ground that it is an industrial matter there is much to be said for the view that the Commission has full authority to "deal" with it. As to how it may be dealt with, by reference to the scope and objects of the Act it is apparent that in the case of an industrial matter in the form of an industrial dispute over dismissals the Commission may deal with it by settling it. It has long been accepted that an appropriate method of settlement or resolution may be to order re-employment, and payment of compensation to those who accept re-employment. It is not readily apparent why it should be regarded as always beyond power to make orders for compensation to those who are not re-employed. Arguably each case should be treated on its merits, and the question whether compensation should be ordered in a particular case should not depend on whether the person is or is not re-employed but only on whether compensation is truly ordered for the purpose of resolving a matter that is truly an industrial matter, and whether, in the particular case, a compensation payment (both of itself and as to its amount) is appropriate to the industrial matter and has a natural tendency to dispose of the dispute comprising the industrial matter. There may be cases of alleged unfair dismissal in which a determination by the Commission that the worker should not be reinstated truly settles the dispute and puts an end to the matter such that an attempt by the Commission to proceed further by purporting to award compensation would be gratuitous and industrially irrelevant. There may be cases in which the claim by or on behalf of a dismissed employee for compensation has an insufficient industrial character. It may be nothing more than the pursuit of a private or domestic remedy by an individual rather than a claim having some more general industrial ingredient or complexion. There may be cases in which the amount of compensation awarded is so high as to be beyond what might properly be regarded as adequate redress for the element of unfairness giving rise to the industrial dispute. But these would be reasons why in the particular case the Commission had exceeded its authority In this case there is no doubt the matter began as an industrial matter in the form of a dispute about conditions of employment and job security. It was properly before the Commission as a matter within jurisdiction. After jurisdic- tion had been invoked by the s 44 application the employer dismissed the union members concerned. That certainly did not resolve the dispute although it necessarily altered the way in which the Commission could "deal" with it. For a time reinstatement was available as a means of resolving the matter. By the time of remedy, however, by reason of the actions of the employer in the restructuring of its operations, that was not possible. On those facts I do not find it easy to see why, in point of principle, the Commission should be stopped on jurisdictional grounds from settling the dispute by ordering payment of a money sum to the affected persons. The salutary and remedial nature of such a determination might go beyond the particular workers and affect the employer's attitude to the employer/employee relationship generally, and the employer's future industrial behaviour, to the benefit of its other employees. Having said that, however, I think it is now too late for us to hold that the Commission does have authority to make orders for compensation to dismissed workers who are not also re-employed. Pepler's Case is of comparatively long standing, and was decided after careful consideration and a thorough examination of the question. In this area of law there is as much need for certainty and continuity as in any other. Even if we were to conclude that a conclusion different from the conclusion reached in Pepler's Case is to be preferred that would not be a sufficient ground to overrule Pepler's Case. The question is by no means free from doubt and it cannot be said that Pepler's Case is obviously or manifestly wrong, or that the principle established by it goes against principles established elsewhere in Australia as regards the jurisdictional limits of industrial courts and tribunals. And there has been ample opportunity for Parliament to change the law. That these are legitimate considerations in determining whether to overrule important and long-standing judicial precedents is shown by such cases as Attorney General (NSW) v. Perpetual Trustee Co Ltd (1952) 85 CLR 237 "Attorney General (NSW) v. Perpetual Trustee Co Ltd (1952) 85 CLR 237"; Thomas' Case (1949) 77 CLR 493 "Thomas' Case (1949) 77 CLR 493"; Queensland v. The Commonwealth (1977) 139 CLR 585 "Queensland v. The Commonwealth (1977) 139 CLR 585" and Nguyen v. Nguyen (1990) 169 CLR 245 "Nguyen v. Nguyen (1990) 169 CLR 245". In the last mentioned case Dawson, Toohey and McHugh JJ said at p 269: "Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional..." For these reasons I would dismiss the appeal.