T5080
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Anthony John Gurr and Newton Timber and Hardware Pty Ltd
Conference - unfair dismissal REASONS FOR INTERIM DECISION This was a Section 30(1) conference convened for the purpose of settling an industrial dispute between Mr Anthony John Gurr (the employee) and Newton Timber and Hardware Pty Ltd trading as Geoff White and Sons (the employer). Mr Bushby for the employee and Miss Burke for the employer, both being legal practitioners, were given leave by the Commission to appear in this matter. On a procedural point I indicate at this juncture that the referral of this matter to me by the President stated that it was subject to Section 30(2) of the Industrial Relations Act 1984. However this was an apparent typographical error not detected at the time of formal hearing in Georgetown on 23 June 1994. The supporting documentation was in respect of Section 30(1) and accordingly the commentary about the referral made in the proceedings by the Commission was incorrect. In my view this does no damage to the proceedings thus far and does not alter the focal point of the preliminary issues raised by Miss Burke which are now addressed. Miss Burke contended that the Commission did not have jurisdiction to hear this dispute. She said that the employer was respondent to the federal Australian Timber and Allied Industries Union Award and in consequence that dispute should be brought before the Federal Court1. Having regard to the provisions of the Australian Industrial Relations Act 1988 as amended by the Industrial Relations Reform Act 1993, I assume Miss Burke was referring to the Industrial Relations Court of Australia. I do not support that argument. Section 30(1) specifically provides the power for the President to convene a conference in respect of an industrial dispute. Section 3 of the Industrial Relations Act 1984 defines industrial dispute and industrial matter and those definitions comprehend the subject matter in this case. Similarly jurisdiction for the Commission to deal with this matter is not impaired because of the lengthy period of time, May 1993 to now, for this dispute to be brought before the Commission. There are no time constraints contained in the Act for the lodging of applications or indeed for the conduct of conferences pursuant to Section 30 of the Act. A further issue raised by Miss Burke concerned Section 30 mechanisms. She submitted that the employer was entitled to be informed as to the basis upon which the President concluded that it was necessary for a conference to be called in this matter. Obviously there was some confusion about this in the initial proceedings as the Commission erroneously indicated that the referral was subject to Section 30(2) of the Act. This was not the case and as I have indicated I am of the opinion that this does not impinge on the preliminary issues referred to by Miss Burke and which require the Commission's determination. However in respect of the specific matter raised by Miss Burke regarding the entitlement of the employer to be made aware of the reasons for the President concluding that the matter should be referred pursuant to Section 30(1) of the Act, that is of course a matter for the President. Notwithstanding that, it should also be noted that the employer was provided by the Registrar of the Commission with details of the employee's request for a conference to be called. That information, it appears from file records, was forwarded to the Manager, Newton Timber and Hardware Pty Ltd, trading as G. White and Sons, 30 Remount Road, Mowbray, Tasmania. Miss Burke also queried the approach of the Commission to conduct the conference as a hearing. This should be viewed on two basic premises. One that the Commission, pursuant to Section 21(1) of the Act can regulate its own procedures. In that regard the Commission has generally adopted an approach similar to a Section 29 dispute hearing in order to facilitate the orderly conduct of the conference. Secondly, the Commission in this matter indicated on a number of occasions its willingness to be involved in conciliation conference discussions. Whilst this was not able to be achieved given the limited nature of the instructions provided to Miss Burke by the employer, that process is certainly still available to the parties and is one that the Commission will further encourage on resumption of these conference proceedings. With regard to the submissions made by Miss Burke that an alternative in this matter was for the employee to seek damages through the Supreme Court, I make the point that this Commission does not involve itself in claims for damages which are properly pursued in a court of law. But the matter before the Commission does not go to damages, rather it is a conference for the settling of an industrial dispute. The powers of the Commission to settle a dispute extends, in appropriate circumstances, to making an award of money. On that issue the Full Bench in the Harriett Gunn case said at page 8 of its decision2:
As to the provision of Section 128 of the Australian Industrial Relations Act 1988, Miss Burke said that the employer could make application pursuant to that section to restrain the Commission from dealing with this industrial dispute. That is a matter for the employer in the first instance and it is not appropriate for the Commission to make any observation about that preliminary issue. For the reasons stated I conclude that the Commission has jurisdiction to deal with this industrial dispute pursuant to Section 30(1) of the Act. Accordingly the matter has been listed for resumption in Launceston at 9.30am on 3 August 1994.
R.K. Gozzi Appearances: Date and Place of Hearing: 1 transcript pp.9/10 |