Department of Justice

Tasmanian Industrial Commission

www.tas.gov.au
Contact  |  Accessibility  |  Disclaimer

T5797

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of an industrial dispute

Mr Kerry Wayne Scott
(T.5797 of 1995)

and

Nubco Pty Ltd

 

COMMISSIONER R J WATLING

HOBART, 18 December 1995

Industrial dispute - alleged unfair dismissal - reinstatement sought - jurisdiction - extension of time - jurisdiction found

REASONS FOR INTERIM DECISION

This application, lodged by Mr Kerry Wayne Scott (the applicant), pursuant to s.29(1A) of the Industrial Relations Act 1984, was for the purpose of settling a industrial dispute between the applicant and Nubco Pty Ltd (the employer).

The dispute arose when, on 24 August 1995, the employer dismissed the applicant from his employment for the reason of alleged misconduct.

This application was made approximately 33 days after the applicant's employment had been terminated and after he withdrew an earlier defective application, being T.5782 of 1995.

When the matter came on for hearing the applicant's representative, Mr P Griffin, foreshadowed that he would be presenting a submission in support of an extension of time pursuant to s.21(2)(m) of the Act.

It was the submission of Mr S B McElwaine of Counsel, for the employer, that the application to the Commission was without jurisdiction and that argument should be heard on that issue as a preliminary matter - a request to which I agreed.

Mr McElwaine's arguments can be summarised as follows :

1)  The application, filed with the Commission on 14 September 1995 pursuant to s.29(1A) of the Act, was not filed within 14 days of the date of termination as required by s.29(1B) of the Act, therefore there was no jurisdiction to hear the matter.

2)  The only jurisdiction to extend time comes from s.21(2)(m) and that does not confer a power to enlarge a right which has expired, that is, if the 14 days has expired there is no power to extend time. The power of extension can only be exercised during the 14 day period.

3)  Authorities relied on -

    a)  Glanville v Glanville 1937 Tas SR at 82; and

    b)  Joseph v Davies 1976 Vol 14 SASR at 273.

Mr Griffin, for the applicant, presented submissions rejecting Mr McElwaine's argument and his submission can be summarised as follows :

1.  The authorities relied on by Mr McElwaine can be distinguished on the following bases:

a) both are cases where a court was considering an application to extend time in relation to an application to appeal or lodge a notice of review;

b) the initial cause of action had been adjudicated and no appeal was lodged within the specified time period;

c) once the cause of the action had been heard by the court, the only continuance of that cause of action would have been by filing an appeal which would have the effect of reviewing the cause of action. If no appeal was lodged then there was no ability to continue with that cause of action - the action was dead and could not be revived by the court granting an extension of time;

d) both cases were decided on the basis of public policy and there must be an end to litigation at some stage, given that both deal with courts exercising the power to extend time in the appellate jurisdiction, thus the court would be reluctant to allow a matter to drag on indefinitely. Hence the need for strict compliance with time limits in relation to appeals;

e) in both cases justice had been done because the initial cause of action had been adjudicated.

2.  The application, made under s.29(1A), was for a hearing before a Commissioner in respect of an industrial dispute relating to the termination of employment at first instance and that is what distinguishes it from the authorities referred to by Mr McElwaine.

3.  The time limit imposed by s.29(1B) is procedural and as such the Commission has the discretion to extend time using s.21(2)(m).

4.  The industrial dispute relating to the termination of employment does not cease due to the operation of the time limit imposed by s.29(1B). The cause of action is still awaiting adjudication and therefore the applicant was not seeking to revive something that had been extinguished.

5.  The Commission is essentially a lay jurisdiction and as such a legalistic argument such as that argued by Mr McElwaine does not accord with the principles espoused in s.20 of the Act.

6.  Whilst s.20 cannot enlarge the jurisdiction conferred by s.19 of the Act nevertheless it does deal with the manner in which the Commission's jurisdiction is to be exercised.

7.  If Mr McElwaine's arguments were to succeed it would leave very little scope for the operation of s.21(2)(m) in that it would only apply to applications made within the 14-day limit as provided by s.29(1B).

8.  A narrow reading of s.29(1B) would render s.21(2)(m) virtually defunct, and thus defeat Parliament's intention in enacting the provision.

9.  The Commission should interpret the provision in the broadest light to enact Parliament's wish in that if s.21(2)(m) does not apply to s.29(1B) then it may well be a defunct provision.

10. There is no use of mandatory words in the terminology contained in s.29(1B) - that is, there is no use of the words "shall be made within 14 days" - thus it is that Parliament did not intend it to be a mandatory time limit.

11. Authorities relied on -

    (a)  Port of Launceston of Authority v Houston Line Limited, 93 of 1971 Neasey J. (Supreme Court of Tasmania);

    (b)  Williams v ANM, No.52 of 1978, Nettlefold J. (Supreme Court of Tasmania);

    (c)  Robertson v The Hobart Police and Citizens Youth Club, No.59 of 1982, Full Court (Supreme Court of Tasmania); and

    (d)  Maxwell on the interpretation of statutes - 12th Edition

Mr Willingham, for the Minister, intervening in this matter, stated that in every respect he supported, endorsed and adopted the submissions presented by Mr Griffin and opposed the submission presented by Mr McElwaine.

He stated that s.21(2)(m)(i) was clear and unambiguous and it enabled the Commission to extend any time prescribed by or under the Act and the only qualification was that the Commission may not extend time in relation to appeals. He said that if the Parliament had wished to further entrammel the Commission's jurisdiction then it would have done so.

He said that s.21(2)(m)(i) was not capable of being read down in the way submitted by Mr McElwaine, for the employer, and he developed his argument along two lines:

1.  If an assumption was made that the wording of s.21(2)(m)(i) was absurd and/or ambiguous (which he did not believe to be the case), then the Commission should consider the canons of statutory interpretation. He drew my attention to Joseph v Davies, at page 279, where his honour said that -

"If there was any ambiguity it should be resolved in favour of giving a broad and liberal interpretation to the provision and one which will not stultify it".

    Mr Willingham took the Commission to the Acts Interpretation Act 1931 and, in particular, the Acts Interpretation Amendment Act 1992 which introduced into the principal Act s.8(A) and 8(B). Section 8(A) provides that -

"8A-(1) In the interpretation of a provision of an Act, an interpretation that promotes the purpose or object of the Act is to be preferred to an interpretation that does not promote the purpose or object."

    He said the purpose of the Industrial Relations Act 1984, amongst other things, was to establish an Industrial Commission with the jurisdiction to hear and determine matters and settle industrial disputes, therefore Parliament and the statute has said that in making some form of interpretation the competent authority should interpret the provision in a way that would give effect to the purpose of the legislation and not stultify it.

    The Industrial Relations Act 1984 was amended by the Industrial Relations Amendment Act 1994, which came into force in December 1994.

    Mr Willingham spent some time taking the Commission through various pages of Hansard to highlight the intention of the Government when introducing the amending legislation to show that it was their clear intention to allow the Commission discretion when extending the time limit for making an application relating to the termination of employment.

2.  The second line of Mr Willingham's submission was to take the Commission to other authorities which he believed provided the Commission with supporting evidence to show that the power to extend was not expressed to be subject in its existence to an application having been made within a limited period and the provision should not therefore be read down to give it that effect.

Those authorities were as follows :

1)  Horsburgh v Steel (1972) 3 SASR 179 at page 182;

2)  Samuels v Meyler (1977) 16 SASR 378 at pages 382 and 383;

3)  Williams v Smith (1984) Tas SR 176 at page 184, Underwood J.:

4)  Jacobson v Taylor (1984) Tas SR 176 at page 210, Cosgrove J.;

5)  Coldham : ex parte ABCE&BLF (1985) 159 CLR at 522 High Court, Gibbs CJ, Wilson and Dawson JJ.

DECISION

In this matter the competing contentions can be succinctly stated :

  • Either the right has expired, so that the application would involve not merely the extension of time to exercise an existing right but the revival of an expired right, or

  • The power to extend given by s.21(2)(m) is not expressed to be subject in its exercise to an application having been made within a limited period, and the provision should not be read down to give it effect.

This application, made under s.29(1A) of the Act, is one which was made upwards of 14 days after the date of termination of the applicant's employment. The answer to the question of whether or not the time for making such an application can be extended, essentially turns upon the scope of the power of the Commission under s.21(2)(m) of the Act, which is in the following terms:

21 -  (1)  Subject to this Act, the Commission may regulate its own procedure.

      (2)  Without prejudice to the generality of subsection (1), the Commission may, in relation to a matter before it - ...

        (m)  extend any time -

          (i)  prescribed by or under this Act, except a time prescribed in relation to an appeal; or

          (ii)  fixed by an order of the Commission

Section 29(1A) was introduced by way of amendment in 1994, and allows a former employee to apply for a hearing in respect of a dispute relating to the termination of the employee's employment. Section 29(1B), which was introduced at the same time, provides that such an application is to be made within 14 days of the date of termination. Those provisions were said by the Minister, when introducing the amending legislation for its second reading, to mirror the provisions contained in the Commonwealth's industrial legislation, i.e. s.170EA of the Industrial Relations Act 1988 (Commonwealth). That section also contains within it the power to extend the time, either during or after the time allocated for making the application, however, no equivalent provision was included in the 1994 amendments as the power to extend time can be found in s.21(2)(m) which has been in the legislation since it was first enacted in 1984.

It was apparently the intention of the Parliament in enacting the provisions of s.29(1B) that the power to extend time would (as it does under the Commonwealth Act) exist whether the application was made before or after the time limit had expired - see the record of the debate in the House of Assembly: Hansard - 1994 - pp.3822 and 3834.

I have carefully considered the submissions of all the parties, however, I have arrived at the conclusion that the arguments presented by the applicant and the intervener in this matter and the authorities upon which they relied should be endorsed by the Commission.

I have taken particular note of the High Court of Australia in re Coldham: ex parte ABCE&BLF (1985) 159 CLR 522. In that case the High Court was considering a statutory provision that an appeal:

"shall be made within 21 days after the date of the award or decision appealed against"

and a further provision in the same Act which gave to the Commission the power to:

"extend any prescribed time"

It was argued that the power to extend time given by the latter provision could not be invoked after the 21 day time limit fixed by the earlier provision had expired.

The High Court unanimously rejected that argument, and the following passage from the judgement of the Court at page 529 to 530 is instructive :

"The fact that the prescribed time had expired before the application was made presents no barrier to the exercise of the Commission's powers. ... There is nothing in the Act that suggests that the power given by s41(1)(m) cannot be exercised after the prescribed time, which is sought to be extended has expired if the circumstances justify that course. ... It is true that many rules of court expressly provide that the court may extend a period of time within which a person is required or authorised to act, although the application for extension is not made until after the expiration of that period, but that does not mean that such a provision is necessary in all cases to enable a period of time which has expired to be extended. It has recently been held in England that even in the absence of any such provision a court has an inherent power to control its own procedure and enlarge time after the prescribed time has elapsed, and that the older notion, that when the time has expired without the necessary action having been taken the action is dead and cannot be revived, is erroneous."

After referring to the English cases, the court went on to say :

"The question in the present case must be answered by deciding what is the true intention of the statutory provision which fixed the time, and having regard to the object of the Act, and the intention revealed by the provisions already mentioned, ss35 and 41 cannot be regarded as intending to place a technical impediment in the way of the settlement of an industrial dispute on its merits, or as denying to the Commission the power to extend the time prescribed for instituting an appeal when the Commission in its discretion considers that such an extension would be desirable."

In my view, the clear purpose of s.29(1A) and (1B) is to give an employee whose employment has been terminated the right to dispute that termination before the Industrial Commission by way of an application made within the time limited by the latter subsection. That is consistent with the general purpose of the Act of enabling the Commission to hear and determine matters arising from (inter alia) the relations between employers and employees. Section 21(2)(m) appears to me to have the equally obvious purpose of allowing the Commission (with one exception) to extend (in relation to a matter before it) any time prescribed by or under the Act for doing any thing.

I have arrived at the conclusion that the Commission, in its application of the provisions of s.29(1B), is authorised under s.21(2)(m), to grant an application to extend even though that application is not made until after the 14-day limitation period has expired. In my opinion, s.29(1A) sets up the right to apply - s.29(1B) does not put an end to that right if it is not exercised within 14 days, but merely precludes the right from being exercised, unless authority for its exercise is given in some other way. That way could be through a successful application for an extension under the provisions of s.21(2)(m).

In this regard, I believe that the distinction drawn by Hogarth J. in Joseph v Davies, which was referred to in argument before the Commission, is instructive. I refer to the second full paragraph on page 279, where His Honour says :

"It seems to me that there is a clear distinction to be drawn between the cases where time may be extended to enable a proceeding to be commenced, on the one hand, and those in which, on the other hand, the law will take effect automatically to put an end to a parties' rights without more, unless some action is taken within a stipulated time."

In my view, the provisions of s.29(1A) and (1B) place it in the former rather than the latter class.

The provisions of s.29(1A) and (1B) are obviously intended to be provisions beneficial to employees, and to give them the alternative interpretation contended for would effectively deny them their apparently intended operation, since I can imagine very few instances in which an application under s.29(1A) could not be made within 14 days whereas an application to extend time could be.

In addition, the result seems to me to be far more consistent with the more liberal approach to extension of time provisions highlighted in the authorities put to me. These authorities appear to allow the widest discretion that the circumstances of the case will permit.

In this regard, extension of time is discretionary, however, a Commissioner hearing an application to extend should only exercise that discretion favourably to the applicant where satisfied that a proper case for doing so has been made out.

Given all the foregoing Mr McElwaine's argument on this threshold point of jurisdiction is rejected.

This hearing will reconvene.on Wednesday, 21 February 1996 at the Court of Petty Sessions, 145 Rooke Street, Devonport, Tasmania at 9.30 a.m. to enable the applicant to be heard in relation to extending time pursuant to s.21(2)(m). At that time the Commission should be satisfied that the applicant has at least an arguable case in relation to the dispute proper; there are good and acceptable reasons for the application not having been made within the statutory time limit; and, the respondent to the application has not been prejudiced by the delay in making the application.

If the parties propose to argue some other jurisdictional or preliminary point when the hearing reconvenes, then I would require that the parties be notified in advance not only the substance of the points they wish to argue but also the authorities upon which they intend to rely, so that the Commission and other parties have an opportunity to properly research the matter(s) prior to the hearing, thus avoiding unnecessary delays in finalising this outstanding application.

 

R J Watling
COMMISSIONER

Appearances:
Mr P Griffin (13.10.95, 1.12.95) for Mr Kerry Wayne Scott (13.10.95, 1.12.95)
Mr S B McElwaine of Counsel (13.10.95), Ms D Wilson of Counsel (1.12.95) for Nubco Pty Ltd
Mr C Willingham (1.12.95) intervening on behalf of the Minister for Industrial Relations and Training with Mr C Crowden (1.12.95)

Date and Place of Hearing:
1995
October 13
Launceston
December 1
Ulverstone