TASMANIAN INDUSTRIAL COMMISSION

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

Mr G Cooper
(T6845 of 1997)

and

Australian Workers Union Tasmania Branch

Industrial dispute - re payment of salary

REASONS FOR DECISION

In the "Application for Hearing in respect of an Industrial Dispute" in this matter Mr Cooper stated; "I am employed by the Australian Workers' Union as its Industrial Officer. I expect that I may become involved in an industrial dispute with my employer, the Australian Workers' Union. I have reasons to believe that I may not receive my monthly salary for April, 1997 and subsequent monthly salary that will become due to me."

In proceedings on 4 and 11 April 1997 debate on the issues in this matter resulted in the Commission indicating to the parties that the matters for determination are:

(1)  Is Mr Cooper still an employee of the Australian Workers Union?

and, if he is an employee

(2)  Payment of wages.

It is submitted by the Australian Workers Union (A.W.U.) that Mr Cooper has been made redundant (on or About 15 March 1997) however, Mr Cooper maintains he is still an employee.

It is not disputed by the (A.W.U.) that Mr Cooper was an employee until it is alleged he was made redundant.

On 21 April 1997 Mr K Read, solicitor appearing for the (A.W.U.) raised the issue of jurisdiction of the Commission as a preliminary matter for determination.

Mr Read submitted that the organisation he represented is an organisation within the meaning of the Workplace Relations Act 1996. Section 414 of that Act clearly excludes the jurisdiction of the Tasmanian Industrial Commission (the Commission) in this matter.

At Page 2 of the transcript, for that day, Mr Read summarised his position as follows:

"in essence, what it says is that if the act, or in this case the omission, that is the omission to pay wages, if that is a matter for which the organisation is liable to be sued or proceeded against for a pecuniary penalty then it is the Australian Industrial Relations court which has the exclusive jurisdiction."

Mr Read also referred to Section 47 of the Industrial Relations Act 1984, and in particular Section 47(1)(a) which provides for a penalty if an employer fails to pay an employee, to support his contention that this matter was one for a court of competent jurisdiction ie: the Australian Industrial Relations Court not the Commission.

Mr Phillips, Solicitor, appearing for the applicant in responding to Mr Read submitted at Page 3 of the transcript

"that the jurisdiction is not so exclusive as to preclude a state court or tribunal from determining this matter because the application is simply an application for wages; it is not an application for a pecuniary penalty for damages or otherwise."

and later at page 9

"he (Mr Read) hasn't pointed to anything in this application for wages to be paid that is exclusively within the jurisdiction of the federal court because the answer is, Mr Commissioner - Mr Deputy President - it's not."

Mr Phillips also referred to a number of decisions from various jurisdictions to support his contention that the Commission is the appropriate tribunal to determine the matters sought by the application.

Mr Read's argument in my view succeeds or fails on an examination of S.414 of the Workplace Relations Act 1996.

Section 414 "Exclusive jurisdiction," has three subsections that define a number of matters which are the exclusive jurisdiction of the Industrial Relations Court of Australia (the Court). The Section reads:-

(1) Subject to this Act, the jurisdiction of the Court in relation to an act of omission for which an organisation or member of an organisation is liable to be sued, or to be proceeded against for a pecuniary penalty, is exclusive of the jurisdiction of any other court created by the Parliament of any court of a State or Territory.

(2) The jurisdiction of the Court in relation to matters arising under section 208, 209 or 261 of Division 5 of Part 1X is exclusive of the jurisdiction, or any similar jurisdiction, of a State industrial authority.

(3) The jurisdiction of the Court under section 422 is exclusive of the jurisdiction of any court of a State or Territory to hear and determine an appeal from a judgment from which an appeal may be brought to the Court under that section.

A careful reading of the above and consideration of the transcript of Mr Reads submission does not lead me to the conclusion that the issue before the Commission impinges on the matters detailed in Section 414 as the exclusive jurisdiction of the Court.

The Commission is not a court and is not being asked to impose a penalty in this matter. It is being asked to decide on the facts whether or not Mr Cooper is an employee from the date it is alleged by the AWU that he has been made redundant and if he is an employee, the application seeks redress on payment of wages.

I believe that the above matters fall squarely within the definition of an "industrial matter" as defined in the Tasmanian Industrial Relations Act 1984 and that S.414 is not limiting to the extent that it excludes the Commission dealing with the matters in dispute in this case. I therefore intend to proceed with the application.

The hearing will be resumed at a time and date to be determined.

J G King
DEPUTY PRESIDENT

Appearances:
Mr R Phillips for Mr G Cooper
Mr K Read for Mr J Glisson of the Australian Workers Union Tasmania Branch