TASMANIAN INDUSTRIAL COMMISSION

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

Minister for Industrial Relations and Training
(T5804-T5838 & T5906 of 1995)

and

Zoron Pty Ltd (trading as Silvio's Pizza)

Industrial dispute - breach of Restaurant Keepers Award - jurisdiction of Commission - arbitrated - matter to proceed

INTERIM DECISION

These applications for dispute hearings were made under Section 29 of the Act by the Minister for Industrial Relations and Training (the Minister).

The disputes were with Zoron Pty Ltd AFT The Samuel Stephens Family Trust, trading as Silvio's Pizza of Launceston (the Company) and concerned alleged breaches of the Restaurant Keepers Award (the Award) by the Company. The alleged breaches related to the underpayment of wages to a number of employees of the Company.

The applications were joined at the outset.

The Company sought to have the applications dismissed on jurisdictional grounds and raised five points:

• The application in each case was not signed by the Minister himself, purportedly on the basis that the alter ego principle or the Carltona principle applied, but, the principle did not apply under Section 29 of the Act because the Act generally did not prescribe a great number of functions for the Minister, the implication, being that those few functions which were prescribed ought to have been carried out by the Minister himself.

The alter ego principle was not applicable either where matters of a very serious nature were involved and in this case the Company stood to suffer serious consequences if the allegations were established.

The Company relied upon two precedents on this point: a decision by Crawford J in the Tasmanian Supreme Court matter of the Official Trustee in Bankruptcy and Byrne1 and a New South Wales Supreme Court case, LS v The Director General2.

• The principle of statutory construction (that is, "one thing excludes another") applies. There were specific provisions in the Act for procedures relating to alleged failures to pay award wages and it was not sufficient, in the light of the specific procedures, to have relied on a general provision like Section 29.

The use of Section 29 by the Minister implied that a second right of redress was available under the Act in addition to the specific payment of wages breaches; such additional rights were not available.

The Company relied upon the recent High Court decision in Byrne and Others and Australian Airlines Ltd, so far noted only in Volume 16 of the Legal Report of 17 October 1995.

• On the basis that the applicants were seeking under Section 31 of the Act, to have monies paid to settle the dispute, the Commission does not have the power to order such a remedy because the Full Court decision in the New Town Timber and Hardware and Gurr and Gozzi case3 made it clear that the Commission may only order a money payment in settlement where re-employment or reinstatement has been sought and the Commission has decided such a remedy is impractical.

• There was at that time an application4 before the Australian Industrial Relations Commission (the AIRC) wherein the main disputants in particular were the Shop, Distributive and Allied Employees Association and Silvio's Dial-A-Pizza Pty Ltd and its franchises (including the Company). In that AIRC matter a consent award was proposed.

The existence of the AIRC matter involving the same parties in relation to rates of pay, by reason of the AIRC's enabling Act (under Section 128 and 152 thereof), deprived the Commission of jurisdiction: in any case the expected settlement of the AIRC matter in the near future would over-rule the Award completely.

The Commission should not proceed till the AIRC matter was decided.

• The alleged disputes detailed in the applications were not industrial disputes in that the alleged parties were the Minister and the Company, not the applicants and the Company. At law there was not a dispute between the Minister and the Company.

Under Section 29:

"The Minister may apply to the president for a hearing before a commissioner in respect of an industrial dispute that has arisen or the applicant considers is likely to arise."

There was no dispute between the Minister and the Company, the Minister was purporting to notify a third party dispute when he had no such jurisdiction under the Act.

In response the Minister dealt with each jurisdictional objection in the sequence raised by the Company.

• There were not serious implications for the Company if the applications were to be upheld because the Company would merely be required to observe the law, the provisions of the Award. The Company would have the opportunity to answer the allegations.

The functions of the Minister in relation to applications like these were great in number, as the Commission would be well aware, but, taking these applications as examples, the amounts involved were not of such a magnitude as to warrant the Minister's personal attention. The cases quoted by the Company were certainly serious, but, the applications by comparison were not.

The applications were "bread and butter stuff" by Industrial tribunals' standards and not of a nature that would warrant the application of the alter ego or Carltona principle.

• The 1994 amendment5 to the Act expressly provided that breaches of awards were to be regarded as industrial disputes by definition, and applications by the Minister in relation to such disputes were again expressly provided for in that amendment. The Company's submissions on this point completely disregarded these amendments which were manifestly clear.

The Minister quoted from the Hansard reports to show the purpose of the amendments.

The Minister dismissed the Australian Airlines case as irrelevant since it dealt with damages payable over and above award wages not paid.

• The effect of the decision in the New Town Timber and Hardware case was not to restrict the Commission in all matters under Section 31(1) in the awarding of money payments. That case related only to disputes in relation to termination of employment and the Full Court did not enter into the area of disputes separate from those related to termination of employment.

The Full Court did not address the issue in these applications concerning orders for the payment of wages due. These applications were not seeking compensation, but, simply the payment of wages due under the Award.

• Section 128(1) of the AIRC enabling Act empowered the AIRC to make orders restraining state industrial authorities from proceeding with a matter, but, in these applications no such orders had been made and hence the Commission was not restrained: the same argument applied with Sections 152 of the AIRC enabling Act. The Commission should not be concerned with future possibilities.

• The Act defined the breach or an alleged breach of an award as an industrial dispute hence an allegation of a breach was an industrial dispute. These applications related to alleged breaches of an award and they were, therefore, applications relating to an industrial dispute. The Act did not provide that the Minister must be a direct party to a dispute about which he had made an application for hearing. Whether or not the Minister and the Company were in dispute was not relevant to jurisdiction of the Commission in these applications.

The provisions of Section 24 and 25 of the Act allowed the Minister to make such applications as he thought appropriate in the public interest. Where the Minister applied for an award to be made (which he had done on occasion) he was not required to be a direct party to the award. He was in the same position with respect to Section 29(1) of the Act; similarly with applications under Section 30 of the Act. All these powers of the Minister related to the public interest which was the main purpose of their enactment.

In reply the Company submitted that references to the Hansard reports were not helpful since the members of Parliament may not have fully understood what they were doing legally, the New Town Timber and Hardware case was quoted as something which had happened in this regard.

The Company also said that the Commission should not proceed with applications which may produce results inconsistent with federal matters.

A similar argument that the members of Parliament may have been mistaken legally was also put by the Company in relation to the Minister's power to proceed against breaches of awards under Section 29 of the Act which was introduced in 1994.

DECISION

In general I accept the submissions of the Minister:-

• It would be ludicrous to expect the Minister to sign personally all the applications the State servants in his department submit to the Commission and as in these cases, individual matters covered under the Act and brought to the Commission are invariably not of a nature serious enough to warrant the Minister's personal attention.

In all the abovementioned context I accept that, if anything, the Carltona or alter ego principle would apply in these cases. I consider also that it would be more serious for the Company to be permitted to flout the requirements of the Award and hence I do not accept that other considerations should sway me to "exempt" the Company from its responsibilities to pay the Award rates of pay.

• I am satisfied that the Minister has the power to proceed under Section 29, as he has in these applications. It seems to me that the only way the principle of statutory construction could apply in a case like this would be when a party sought to rely on one provision of the Act after having failed to succeed using another provision.

• I do not accept that these applications sought compensatory payments, rather they sought simply what were entitlements and in that context I accept the Minister's submission that the New Town Timber case was not relevant

• Until the AIRC has actually brought down a determination there is no legal bar to the Commission carrying out its responsibilities. These applications sought orders for the payment of wages due under the Award and until a legal bar is introduced the Commission ought to proceed without delay.

• Section 29(1) of the Act specifies that (inter alia) the Minister may apply for a hearing in respect of a dispute; there is no indication that the Minister needs to be a party to the dispute.

I reject the submissions of the Company as to lack of jurisdiction. Arrangements will be made for the hearing to proceed in the near future.

P A Imlach
COMMISSIONER

Appearances:
Mr G Thomas, and later Mr C Willingham, with Mr G Williams for the Minister for Industrial Relations and Training
Mr S McElwaine for Zoron Pty Ltd trading as Silvio's Pizza

Date and place of hearing:
1995
November 13
George Town
December 6
Launceston

1 Unreported List "A" No.4 of 1989
2 NSW Law Reports Vol.18. 481, 1989
3 Unreported to date, A44 of 1995
4 C30587 of 1995
5 No.90 of 1994