TASMANIAN INDUSTRIAL COMMISSION

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

Australian Liquor, Hospitality and Miscellaneous
Workers Union (Tasmanian Branch)
(T5795 of 1995)

and

Thermoform Packaging Pty Ltd

Industrial dispute - unlawful deduction - jurisdiction of Commission - arbitrated - matter to proceed

INTERIM DECISION

This was an application for a dispute hearing made under Section 29 of the Act by the Australian Liquor, Hospitality and Miscellaneous Workers Union (Tasmanian Branch) (the Union).

The dispute concerned the alleged unauthorised deduction of monies by Thermoform Packaging Pty Ltd of Huntingfield (the Company) from the pay of Mr P Griggs in breach of the Fibreglass and Plastics Award and/or the Clerical and Administrative Employees (Private Sector) Award (the Award/s).

The Company (represented by a solicitor, Mr P Zeeman) raised the following jurisdictional objections at the outset relying on the Supreme Court of Tasmania (Full Court) decision in New Town Timber and Hardware Pty Ltd v Gurr and Gozzi1 (the Decision):-

• An industrial dispute did not exist because the case in question related to one employee only. The definition of industrial dispute provided in the Act was expressed in the plural and did not admit of a single employee only being involved in a dispute. The Company claimed the `plural' concept was made clear by the decision.

• The alleged industrial dispute does not fit into any of the areas specified in the industrial dispute definition:

"`industrial dispute' means a dispute relating to an industrial matter, and includes a dispute relating to:

(a) the termination of employment or reinstatement of an employee; or

(ab) a breach or an alleged breach of an award, registered industrial agreement or registered enterprise agreement; or

(b) the entering into, execution, or termination of any contract for services in circumstances that affect, or may affect, an employee in, or in relation to, his work; or

(c) any question relating to the demarcation of functions of employees or classes of employees -

but does not include a dispute, other than a dispute referred to in paragraph (a) or (ab), relating to any matter arising from a registered enterprise agreement if that agreement includes a grievance procedure which provides for private arbitration;"

In particular it does not fit (a) because in this matter, the dispute relates to the "unauthorised deduction of monies" at termination not to the termination itself.

In relation to this argument, Mr Zeeman quoted from the decision (at page 10 of Zeeman J's decision):

"The dispute concerns a demand for the payment of a sum of money made subsequent to the dismissal. The dispute does not relate to the dismissal because it does not seek to call the dismissal into question."

• The High Court says that a dispute between a former employee and a former employer does not concern relations of employers and employees as provided in the Act. This was re-iterated and followed in the decision at page 9:

"An application of that reasoning suggests a conclusion that the present dispute is not a dispute which is an `industrial dispute' within the primary defined meaning of that term because it does not concern an `industrial matter' as that term is defined. It is not a matter which pertains to the relations of employers and employees because the first respondent is not, and was not at the time that he first made a demand which gave rise to a relevant dispute, an employee of the appellant. He ceased to have that status once he was dismissed (R v Portus; ex parte City of Perth (supra) per Stephen J at 329-330; R v Hamilton Knight; ex parte The Commonwealth Steamship Owners Association (1952) 86 CLR 283 per McTiernan J at 301 and per Williams J at 305-306). The dispute does not have an `industry character'. A reading of the definition of `industrial matter' as a whole conveys to me that it only encompasses matters which have such a character.

The judgment of the High court in Re Ranger Uranium Mines Pty Ltd; ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656 at 660-661 provides further support for the proposition that a dispute between a former employer and an ex-employee relating to the dismissal of the ex-employee does not concern the `relations of employers and employees' (which is the term which appears in the definitions of `industrial matter' contained in the Act) although a dispute relating to such dismissal which is agitated by or on behalf of remaining employees who have an interest in it does concern such relations."

The Union, in reply, pointed out that the decision related to an application for a conference made under Section 30 of the Act and it was made by an individual whereas this application was made under Section 29 of the Act by the Union and on that basis, this application ought not to be subject to the implications of the decision.

As to the definition of "industrial matter" the Union submitted that the words "without limiting the generality of the foregoing", clearly gave the Commission the authority to read into the definition the widest possible meaning so that the words, "any other matter pertaining to the relations of employers and employees" is not limited only to the specific prescriptions relied on by the Company. The Union submitted that the term "employers and employees" denoted classes of persons and hence when the Union, an organisation of employees, made an application under Section 29 and was:

" ... able to establish that a matter is in dispute between it and an employer, or employers, and that that matter pertains to the general relationship of employers and employees and that is perhaps the rights and duties which exist from the employer to the employee and the employee to the employer, then that is an industrial dispute within the meaning of the act."2

Relying on a number of High Court cases the Union further submitted that the High Court was not of the view that an "industrial matter" excluded matters pertaining to a single employer and a single employee notwithstanding that the Federal and the Tasmanian legislation was in the plural.

The Union submitted that the decision so much relied upon by the Company, related to a money compensation claim made after the employment relationship had ended whereas this case was about the non-payment of award entitlements during the employment relationship hence the Commission should disregard the Company's argument in that regard.

The Union argued further that an allegation of the breach of an award, such as was contained in the application, was clearly an industrial dispute as specified under Section 3 (1) of the Act which gave the Commission jurisdiction to hear it.

In response to the Union's submissions in favour of jurisdiction the Company said:-

• At the time of the making of the application by the Union Mr Griggs was not a current employee of the Company and therefore the Union had no status to carry the matter. As well as the decision the Company made reference to the High Court case Ranger Uranium Mines Pty Ltd3 saying it supported that a dispute between a former employer and an ex-employee relating to the dismissal of the ex-employee did not concern the "relations of employers and employees" and hence is not encompassed by the Act so far as jurisdiction was concerned, similarly,

• The claim concerning the unauthorised deduction from Mr Griggs' termination pay could not be considered an industrial dispute under the Act and hence there was no jurisdiction for the Commission.

• The true nature or intent of the dispute "was to create a liability in the Respondent to pay the worker monies" it did not concern the breach of an award as claimed by the Union and, therefore, there was no jurisdiction.

• The two cases relied on by the Union (in relation to its claim that the term in the definition of industrial dispute, "relations between employers and employees" was not restricted to the plural sense, but, could apply to Mr Griggs, a single employee) were not suitable cases to rely on because they were disputes under Federal legislation and they involved payment of superannuation to existing groups of employees and they were quite different from Mr Griggs' case.

DECISION

I am satisfied that the Commission has jurisdiction to hear and determine this application.

I accept the Union's submission that the cases quoted by the Company in support of its arguments were not apposite or on all fours with the circumstances of this case.

To my mind the phrase "any matter pertaining to the relations of employers and employees" is a general expression and, in that context, (putting aside the ex-employee factor) non-payment of wages due under an award to an employee is embraced by that phrase. Also, the Acts Interpretation Act clearly provides in Section 24 (d), inter alia, that any reference in the plural may be taken in the singular and vice versa. The words in the definitions "without limiting the generality of the foregoing", just prior to certain specific matters, support the view that the phrase is general in nature and not limited to the plural.

The application was not directly in relation to a dismissal or unfair termination of employment nor did it seek monies in compensation for a dismissal, it related to the breach of the provisions of an award on wages and annual leave pay and therefore I accept that it was a dispute over an industrial matter in accordance with sub-paragraph (ab) of the definition of industrial dispute in Section 3 (1) of the Act. In the same context I reject all the arguments put that there was no jurisdiction on the basis that Mr Griggs was no longer an employee because the application was made by the Union under Section 29 of the Act and the dispute related to breaches of the Award not the termination of employment.

The hearing will be resumed at the earliest available date.

P A Imlach
COMMISSIONER

Appearances:
Mr P Zeeman with Mr C Ayres and Mrs R Haywood, for Thermoform Packaging Pty Ltd
Mr K O'Brien with Mr P Griggs, for Australian Liquor, Hospitality and Miscellaneous Workers Union (Tasmanian Branch)

Date and place of hearing:
1995
November 8
Hobart

1 A44 of 1995
2 Quote from page 13 of transcript, T5795 of 1995
3 (1987) 163 CLR 656