TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s29 application for a hearing in respect of an industrial dispute

Australian Workers' Union, Tasmania Branch
(T5777 of 1995)

and

Trident Seafoods Pty Ltd

Industrial dispute - redundancy package

REASONS FOR DECISION

This application, lodged by the Australian Workers' Union, Tasmania Branch (the AWU) identified the circumstances in dispute as being:

"A dispute with Trident Seafoods Pty Ltd over failure by the company and the union to reach agreement on the terms and application of a suitable redundancy package."

When the matter first came on for hearing, Mr Cooper, for the AWU, outlined the dispute in the following manner:

"it is an application that relates to our member Mr Brian Womersley, who we believe has been denied access to a redundancy payment that emanated as a result of Trident Seafoods making a definite decision to close their operations at Derwent Park. What we have done is we have discussed the application in detail with Mr Watson who is representing the company, and we would - we agree that basically what comes down to, the nature of the dispute is whether or not our member Mr Womersley was formally notified that he would be made redundant and whether he was advised to go and look for another job, which he did."

Transcript p.2

The parties agreed that I should adjourn the hearing to allow for a private conference between the parties involving the Commission, as and when necessary, to endeavour to achieve a relatively quick resolution to the matter.

Later that day a further adjournment was sought and granted to enable the company's representatives "to seek further instructions".

On resumption the Commission was informed that no mutually acceptable settlement of the dispute had been achievable and Mr Watson submitted that applying the tests contained in the decision of the Supreme Court in New Town Timber and Hardware and Gurr and Gozzi handed down on 27 July 1995, the matter was not an industrial dispute for the purposes of the Industrial Relations Act 1984.

Mr Watson contended that there had been no dismissal, that the ex employee involved had resigned; that there was no claim of unfair dismissal and that there was no claim for reinstatement or re-employment. Further, that because there was no claim for reinstatement or re-employment, the Commission could not award compensation in accordance with section 31 of the Act. It was submitted that having regard to the Full Court decision a "mere demand from an ex employee to an ex employer for a monetary amount which is not acceded to by the employer (was) not an industrial dispute". (Transcript p.20).

In closing his submissions, Mr Watson said:

"that it is our position that for this claim to succeed the applicant would have to prove or have to satisfy you that the resignation was actually caused by an action by the employer; that was that the resignation was caused through the employer informing the employees that their position might be redundant, or whatever will come out in the evidence if we get that far."

Transcript, p.21

Mr Cooper submitted that the matter before the Commission was an industrial dispute. He took the Commission to the definitions of "industrial matter" and "industrial dispute" and argued that the issue of redundancy was not excluded by those definitions. He submitted that "termination of employment" as contained in the definition of "industrial dispute" did not have to be termination by the employer. The Commission's decision in Matter T125 of 1985 dealing with termination of employment, introduction of change and redundancy addressed in particular, Mr Cooper said, the case-by-case approach which was preferred by the Full Bench in that matter. He said that approach had been applied by the Commission ever since.

Mr Cooper said this matter differed from the matter which was before the Supreme Court. First, the application was made by an ex employee in the Supreme Court matter and by an employee organisation in the present case. Second, the application sought to have a redundancy package which applied to a number of other "employees" applied to the person subject of the application, and further, that compensation was not being sought; what was being sought was the application of a redundancy package to a former employee.

In addition, Mr Cooper claimed this dispute had an "industry character" because it applied to several employees.

Mr Cooper submitted that the employer's submissions were based on the anticipated outcome of the application rather than the words of the application itself. He contended that the Commission should hear the merit of the case before determining whether or not it had jurisdiction to award compensation.

In further submissions Mr Watson sought leave to introduce new material which was objected to by Mr Cooper. I found Mr Cooper's objection to be appropriate in the circumstances and refused Mr Watson's application.

I have carefully considered the submissions of the parties and, in particular, the argument that if the principles espoused in the New Town Timber and Hardware case were applied to the circumstances of this matter there would be no "industrial dispute" for the purposes of the Act.

The pertinent facts in this matter are:

1. the employee (Mr Womersley) resigned from his employment with Trident Seafoods Pty Ltd,

2. the applicant (the AWU) did not seek reinstatement or re-employment for Mr Womersley,

3. the applicant sought to have a redundancy package, made available to others whose employment had been terminated by the employer, applied to Mr Womersley.

It is clear there is an absence of any continuing employer-employee relationship between Trident Seafoods Pty Ltd and Mr Womersley and that there is no demand for the restoration of such a relationship. The claim by the union that other employees are involved in the matter cannot be substantiated as, on the union's admission, their employment with Trident Seafoods had terminated and they had received a redundancy package. The only test which the union was able to satisfy was that an employee organisation was involved in the matter.

In all the circumstances, having regard to the Supreme Court decision in the New Town Timber and Hardware case, I must find that this dispute lacks the industrial character necessary to make it an industrial dispute for the purposes of s.29 of the Industrial Relations Act 1984.

Accordingly I agree with the submissions of the TCCI and dismiss the application for want of jurisdiction.

F D Westwood
PRESIDENT

Appearances:
Mr G Cooper with Mr I Wakefield for the Australia Workers' Union, Tasmania Branch
Mr M Watson for Trident Seafoods Pty Ltd with Mr T O'Connor, and later with Mr W Ranson

Date and place of hearing:
1995
September 25
October 5
1996
April 18
May 7
Hobart