Jeff Shaw QC
The following are the remarks by Jeff Shaw (on behalf of the Bar Association of New South Wales), on the retirement of The Hon Mr Justice Barrie Clive Hungerford from The Industrial Commission of New South Wales.
Justice Barrie Hungerford has undertaken a substantial and distinguished role in the development of the law and its practical application to employment relationships, the resolution of collective disputes, occupational health and safety laws and unfair work contracts. In all of these areas, the reported cases show both in terms of volume and quality an influence which will endure and an intellectual rigour which will influence other members of the Bench and practitioners in the future.
The judge’s career began, after a military background and graduation from Duntroon, with “hands on” practical dealings with day-to-day industrial relations. Throughout the 1960’s, Justice Hungerford was an industrial officer and industrial advocate for the Metal Trades Industry Association (MTIA). That was a turbulent era, and one of substantial conflict in the metal manufacturing industry. The exacting task of dealing with real, tangible problems that arose in the workplace, both individual and collective, was to prove an invaluable background for the work of an industrial judge. Other significant positions in industry followed during the 1970’s, but by then Barrie Hungerford had both qualified in law and developed a real interest in the technical aspects of the law and legal practice. It is this conjunction of practical industrial experience and enthusiastic interest in legal reasoning which marked his judicial career.
In 1988, Mr Hungerford was appointed a Queen’s Counsel. And just one year later he was appointed a judicial member of the Industrial Commission of New South Wales, the statutory predecessor of the Industrial Relations Commission of New South Wales.
It is not an overstatement to draw a parallel between Justice Hungerford’s contribution on the Bench in this jurisdiction with that of W S Sheldon and F V Watson. 1 All of those judges came from impeccably employer-oriented backgrounds. All, once appointed, showed an absolute and even passionate commitment to the fair resolution of industrial disputes, and to the vindication of individual rights against injustice and oppression. All showed a streak of iconoclasm. All produced judgments which were clear in exposition and eloquent in prose.
In the area of unfair dismissal, his Honour articulated the obligation of an employer to justify summary dismissal. In Pastrycooks Union v Gartrell White(No 3) 2 his Honour said that it was “undoubted” that the onus for making out a case to warrant the intervention of the Commission in ordering reinstatement is on the claimant union (or, nowadays, the individual applicant). However, his Honour further pointed out that where an allegation of misconduct is raised as a defence or justification for a particular course of action by the employer (in particular, summary dismissal) then the legal burden, in an evidentiary sense to establish that fact, shifts from the [applicant] to the employer.
Hungerford J was prepared to stretch the boundaries of the concept of reinstatement in employment by ordering the reinstatement, retrospectively, of an unfairly dismissed employee who had since died.3 His Honour held that the death of the dismissed employee did not detract from the jurisdiction of the Commission to make an order awarding reinstatement in employment, actuated by finding that Mr Angeli’s termination of employment was unfair to an extremer degree. It was held that the reinstatement would not be futile, because the employee’s estate would be benefited by superannuation benefits, annual leave and long service entitlements. A Full Bench of the Commission did not agree that the concept of reinstatement could so extend. 4 However, the entitlements of Mr Angeli’s widow were ultimately vindicated in the Compensation Court of New South Wales where Davidson J held that the worker had been unfairly dismissed and that this was causally relevant to stress encountered by him on the day of his death.5 In the case of a young woman police officer with a somewhat controversial past, his Honour joined with the President to find the existence of an appeal from a Full Bench of the former Commission to the former Industrial Court of New South Wales, despite the fact that the 1996 legislation had apparently abolished that Court.6 For some, that conclusion was counter-intuitive but it was upheld by the Court of Appeal and resulted in the reinstatement of the police officer.
In the area of unfair work contracts, Hungerford J emphasised that an employment arrangement was a serious one, a consensual relationship based on contract, with respective rights and obligations. In Day v Lumley Life Limitedm (1999) 90 IR 70 at 71 Hungerford J said that such a relationship should not operate in practice in a way which permits one party to act in a one-sided matter “contrary to the legitimate expectations and understandings of the other party … particularly where such action damages or detrimentally affects the career interests of the employee”.7 His Honour emphasised that employees have a corresponding duty to act with fidelity and good faith.
These are but a few selected examples of the many wise observations made by Justice Hungerford while on this Bench. These are concepts which will have enduring value. These judgments are a contribution to a fairer society; they illustrate the important role of the Industrial Relations Commission of NSW to act with fearless independence in the public interest and reflect the product of much experience, learning and diligence.
- See “Vernon Watson” (2002) 81 ALJ 41
- (1990) 35 IR 70 at 83
- SDAE v Norman Ross Homeworks Pty Limited (1989) 30 IR 302
- Retail Traders Association of NSW v Shop Distributive & Allied Employers Association of NSW (1990) 36 IR 38
- Angeli v CIC Workers Compensation (NSW) LImited (1994) 53 IR 163
- See Hollingsworth v Commissioner of Police (1998) 81 IR 276;
Commissioner of Police v Hollingsworth (No 2) 84 IR 192; Hollingsworth v Commissioner of Police (No 2) (1999) 88 IR 282
- (199) 90 IR 70 at 71