T5982
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Police Association of Tasmania and The Commissioner of Police
Alleged underpayment to a member on retirement - jurisdiction REASONS FOR DECISION This application, lodged by the Police Association of Tasmania pursuant to s29(1) of the Industrial Relations Act 1984, sought a hearing in relation to a dispute with the Commissioner of Police in respect to the alleged underpayment of entitlements said to be due to a member on the termination of his employment, more precisely on his voluntary early retirement from the Tasmania Police Force. At the commencement of proceedings, Ms Lyon, a legal practitioner, sought leave to appear pursuant to section 28(5) of the Act to represent the applicant. Mr Willingham, on behalf of the Commissioner of Police, objected to legal representation for the Police Association in the matter. However, having considered the submissions of the parties on this aspect of the proceedings, and being satisfied that legal representation would not prejudice the fair conduct of the hearing, the appearance was granted. Ms Lyon submitted that the matter in dispute related to an agreement (referred to later as the "private agreement") entered into between Mr Richard John Chugg and the Government of Tasmania with respect to the terms of Mr Chugg's retirement. Mr Chugg was, at the time of his resignation, employed as the Assistant Commissioner of Police. On 30 September 1994 Mr Chugg resigned from that position. It was a condition of the private agreement that on his resignation or voluntary early retirement Mr Chugg would be paid all accrued entitlements, plus $63,894, gross, to upgrade his retirement benefits contributions plus a further sum equivalent to "one year's salary (gross)". It was submitted that according to the Police Force Enterprise Agreement for Officers, registered with the Enterprise Commissioner on 27 July 1994, "one year's salary (gross)" for the Assistant Commissioner of Police, at the time of Mr Chugg's retirement, was $68,634 plus 7.5% thereof, being a shift and penalty loading, a total of $73,781.55. Ms Lyon said that Mr Chugg had been paid the first two components of the private agreement but had been paid only $65,650 in respect of the third component, making a short payment of $8,131.55. When asked to inform the Commission as to whether or not the Commission had jurisdiction to hear the application, Ms Lyon said the matter was an industrial dispute for the purposes of the Act because the expression "termination of employment" in paragraph (a) of the definition of industrial dispute included any form of termination whether it was at the initiative of the employer or the employee. It was submitted that the definition should not be read down to restrict its application to a termination of employment at the initiative of the employer. Ms Lyon claimed that the private agreement was made between an employer and an employee as to the conditions of the employee's retirement and the industrial dispute arose out of the terms of that agreement. Accordingly she said the matter fell within the definition of an industrial matter in that it referred to the "privileges, rights and functions" of an employer and an employee; more particularly the rights and privileges of an employee with respect to an agreement entered into "just prior to his retirement". At the same time Ms Lyon submitted that the Commission was not being asked to interpret the private agreement but to apply that agreement to the entitlements provided under the Enterprise Agreement. The private agreement was said to be evidence of the terms upon which Mr Chugg's employment was terminated. Once such evidence was given Ms Lyon said the question for the Commission to decide would be what constituted "one year's salary (gross)". Ms Lyons contended that the Commission was not being asked to interpret or consider a breach of the private agreement but was being asked to construe and enforce the enterprise agreement. Mr Willingham, for the Commissioner of Police, submitted that the Commission had no jurisdiction to deal with the matter as the application did not meet the requirements of the definition of "industrial dispute" and "industrial matter". He submitted that it was a misconstruction of the intent of the definition of industrial dispute to conclude that the expression "termination of employment" could encompass a termination of employment occasioned by the resignation or retirement of an employee. In supporting this contention, Mr Willingham referred the Commission to the statutory requirement for the Commission when making an order in respect of an industrial dispute relating to termination of employment to take into account the Standards of General Application contained in ILO Recommendation 166 concerning Termination of Employment at the Initiative of the Employer. Mr Willingham said termination of employment should not be read down to mean resignation of an employee. Mr Willingham claimed that the dispute was not over termination of employment but was in relation to something which had occurred after the termination, after the employer-employee relationship had concluded. Mr Willingham submitted that what the Commission was being asked to do was to interpret a private agreement reached between the parties. He said no breach of the Police Award or the Police Force Enterprise Agreement for Officers was claimed. The matter in dispute was that Mr Chugg considered he had been underpaid his privately negotiated separation package entitlement. The hearing was adjourned to enable me to consider the arguments in relation to the Commission's jurisdiction to deal with the application. It is clear that neither the contents of the enterprise agreement nor those of the award are in dispute. It was acknowledged by the applicant that Mr Chugg had received all award/enterprise agreement entitlements accrued and due to him on his retirement from the Force. The Association, however, considers that Mr Chugg should have been paid $8131.55 more on his retirement if the terms of the private agreement, entered into before he retired, had been properly applied. Accordingly in my view it is the application of the terms of the private agreement which is the matter in dispute. Whilst the private agreement when it was made may have been an industrial matter for the purposes of the Act, once Mr Chugg ceased to be an employee, on his own initiative - there was no dismissal - the relationship between Mr Chugg and the Commissioner of Police lost its industrial character. There was no longer the employer-employee relationship necessary to give the dispute the character of an industrial dispute. The Association is not seeking the restoration of the employer-employee relationship; it is seeking only the payment of monies said to be owing to Mr Chugg by virtue of a private agreement entered into between Mr Chugg and the Commissioner when Mr Chugg was an employee. In consideration of this matter, the Reasons for Judgment of Zeeman J. in New Town Timber & Hardware Pty Ltd v. Anthony John Gurr and Robert Gozzi1 appear germane. Zeeman J., although discussing a somewhat different definition of "industrial dispute", said at page 12 of his Reasons:
and later:
Zeeman J. went on to say, in dealing with the matter before the Full Court:
In this matter an employee organisation is involved but none of the other essential characteristics identified by Zeeman J. are present. There is no continuing employer-employee relationship, nor is there a demand for the relationship to be reinstated. I was not told whether or not existing employees were involved, but I think that whether they were or not is irrelevant as the first two characteristics are absent. In the circumstances I am led to the view that the dispute between the Association and the Commissioner of Police is non industrial and that the Commission lacks the jurisdiction to deal with the matter. Accordingly the application is dismissed.
F D Westwood Appearances: Date and place of hearing: |