T6983
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Mr Andrew Martin Pearson and Gunns Limited
Industrial dispute - termination of employment - threshold matters - amendments to Act - substantive or procedural -reinstatement of applicant withdrawn - no jurisdiction REASONS FOR DECISION On 22 May 1997, Andrew Martin Pearson (the applicant), applied to the President, pursuant to section 29(1A) of the Industrial Relations Act 1984, for a hearing before a commissioner in respect of an industrial dispute arising out of the termination of his employment on 9 May 1997. At the time of notification the applicant sought reinstatement to his former position with Gunns Limited trading as Gunns Mitre 10 (the respondent). On 27 May 1997, the President convened the hearing before myself and the proceedings commenced on 10 July 1997. During the course of his opening submissions, Mr S McElwaine (of Counsel), for the applicant, stated that the applicant was of the view that his termination was unfair and :
As a result of that submission, a threshold matter was raised when the hearing resumed on 22 August 1997. Mr C Gardner (of Counsel) for the respondent, who was of the view that the applicant was not seeking reinstatement, questioned the Commission's ability to order compensation, given the finding in New Town Timber & Hardware Pty Ltd v. Gurr and Gozzi (1995) 5 Tas SR 71. This issue also provoked the need to consider a second matter, i.e. whether this application should be heard and determined having regard for the Industrial Relations Act 1984, as amended by the Industrial Relations Amendment Act 1997 (Act No. 18 of 1997). Mr McElwaine, and Mr Gardner, were requested to present written submissions to the Commission on these threshold matters and I now consider those submissions and the submissions made on transcript. It is appropriate that I should first determine whether the amendments to the legislation affected by Act No.18 of 1997 should be treated as procedural or substantive, because the resolution of that question will bear upon the statutory provisions which are to be applied in the resolution of the dispute before me. Mr McElwaine submitted that, although the application was lodged before the commencement of the amendments made by Act No. 18 of 1997, nevertheless, those amendments were procedural rather than substantive in nature and therefore should be applicable when determining this matter. Mr McElwaine said the general rule that statutes were not to be given retrospective operation did not apply to those which concerned matters of procedure. He submitted that, in Maxwell v. Murphy (1957) 96 CLR 261 at 286, the distinction between substantive and procedural statutes was described as those which modified or abolished substantive rights or liabilities on the one hand and, statutes which deal with the pursuit of remedies on the other. He said, if the statute was concerned only with the way in which certain rights were enforced, then it was procedural and the amendments had retrospective effect. Mr McElwaine also relied on Statutory Interpretation in Australia, 4th Edition at pages 255 to 257 and various case references contained therein, especially Robertson v. City of Nunawading (1973) V.R.819. He submitted that the effect of those cases, when construing the Industrial Relations Act 1984, was that the amendments made in 1997 were procedural because they relate to the pursuit of a remedy (i.e. compensation). The character of the industrial dispute (i.e. termination alleged to be harsh, unjust or unfair) he said, had not been affected or changed. Rather, he said, there was now a clearer power to award compensation where the Commission determined reinstatement was impractical. Mr McElwaine submitted that he had not overlooked s.16 of the Acts Interpretation Act 1931, but it was not applicable in this case. He said it only applies where an Act 'repeals' another enactment. He said it was well settled in Tasmania that 'repeal' in that context did not extend to the making of amendments - Lewis v. Finch (1962) Tas. S.R.138 and Matieson v. Burton (1971) 124 CLR 1 at 20-23. It was submitted by Mr Gardner, that Act No.18 of 1997 was of no relevance in these proceedings. He said the provisions of that Act did not have any retrospective effect. He further submitted, that it was well established that a statute changing the law would not, unless the intention appears with reasonable certainty, be understood as applying to facts or events that had already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events - Maxwell v. Murphy (1956-57) 96 CLR 261 at 267 per Dixon CJ. Mr Gardner said it was correct to say that there was no presumption against retrospectivity in the case of statutes which affect mere matters of procedure - Rodway v. The Queen (1990) 160 CLR 515 at 518. However, he was of the view that the amendments introduced by Act No.18 of 1997 were not merely procedural. To the contrary, he said, they impacted directly on the jurisdiction of the Commission by inserting a new definition of industrial dispute and industrial matters - s.5(1)(d) of the amending Act. Further, s.16(d) of the amending Act amends s.31 of the principal Act by conferring new powers on the Commission. Finding The significance of determining whether the amendments are substantive or procedural only, lies in the well-established legal proposition that a provision which is substantive will only be given retrospective operation where there is a clear indication of legislative intent that it should so operate. Statutes which are procedural only will apply to matters irrespective of when they arose unless the legislature has made it perfectly clear that they are to have a wholly prospective operation - High Court in Maxwell v. Murphy (1957) 96 CLR 261 particularly per Dixon CJ at 267. It is my understanding that there are some limitations upon the extent to which even a procedural statute will be treated as having retrospective operation. This is particularly evident where the change in procedure adversely affects an already-vested right. Where that occurs, a presumption against retrospectivity has been said to arise - Yrttiaho v. Public Curator (Queensland) (1971) 125 CLR 228. The distinction between statutes having procedural effect and those having substantive effect was described by Fullagar J in Maxwell v. Murphy as being statutes which dealt with the pursuit of remedies on the one hand and those which created, modified or abolished substantive rights or liabilities on the other. As the authors of Statutory Interpretation in Australia, 4th Edition, say at Chapter 10.16 of their work -
Although that statement of principle seems tolerably clear, there have proved to be many grey areas in its application. I am satisfied that the amendments made by Act No. 18 of 1997 to s.3 and s.70 of the principal Act were substantive, as in each case they address matters that go to the substantial rights of persons and not merely to the way in which rights may be enforced. The amendments to s.29 are, in my opinion, part procedural and part substantive. They are substantive insofar as they deal with the existence and scope of the right to apply for a hearing, but procedural to the extent that they deal with the manner in which that right may be exercised. The amendments to s.31 relate to the power of a commissioner to make certain orders, disobedience to which may be visited by prosecution and substantial penalties (see subsection (5)). I am of the view, therefore, these amendments are to be regarded as substantive and thus, to apply only to proceedings commenced after the amendments came into operation. In particular, the new subsections (1B) and (1C) confer upon a commissioner a power to create by direction legally enforceable rights and obligations which should not be construed as applying to conduct which predated the amendment. As a matter of general principle, an amendment which affects the measure of liability for conduct is substantive, not procedural - Kraljevich v. Lake View and Star Ltd (1945) 70 CLR 647; John Holland Constructions Pty Ltd v. Hall (1987) 45 NTR 11. It follows, given the foregoing, that I must deal with this application on the basis of the legislative provisions as they stood when the application was first made, along with those amendments which I have previously identified as merely procedural arising out of Act No.18 of 1997, and I so order. Jurisdiction Simply stated, I have been requested by Mr Gardner, when deciding this threshold matter, to find that, as the applicant was no longer seeking reinstatement in his former employment and his claim was solely for compensation, the Commission had no ability to order compensation given New Town Timber & Hardware. In his submission, Mr Gardner relied on New Town Timber & Hardware for the purpose of establishing that:
Mr Gardner submitted that, the abandonment of the claim for reinstatement deprived the Commission of jurisdiction because of the operation of s.29(2) and s.31(1), in that the hearing was convened by the President pursuant to s.29(2) to hear the industrial dispute which was the subject of the application under s.29(1A). The abandonment of the claim for reinstatement, Mr Gardner said, had the inevitable effect that the claim before the Commission was fundamentally different from that which was initially notified to the President. It was further submitted by Mr Gardner, that the jurisdiction of a commissioner under s.31 of the Act was confined by the ambit of the industrial dispute which was notified to the President and which formed the basis of the President exercising the powers conferred upon by him s.29(2). Mr Gardner contended that the power of the Commission to award compensation in circumstances where there was no claim for reinstatement before the Commission was considered in the New Town Timber and Hardware. He said that at page 78 of his judgment, Green CJ stated:
And at page 82 of his judgment His Honour stated:
Mr Gardner drew the Commission's attention to the judgment of Underwood J, in the same case, where he stated at page 100:
Mr Gardner said, the fact the applicant initially made a claim for reinstatement, did not diminish the force of the observations referred to above. He said, the claim for reinstatement having been abandoned, the Commission should approach the matter as being no different from a case in which no claim for reinstatement was ever made. Mr Gardner said the test, as noted by Underwood J, is whether or not reinstatement of the applicant is in issue. He said, in this case reinstatement was not in issue and, as such, there is no basis for the Commission to determine whether or not reinstatement was practical or impossible; the condition precedent for the making of an order of compensation, is not in existence. Mr Gardner submitted that the approach outlined above derives support from the observations of the High Court in Re Finance Sector Union of Australia; Ex Parte Illaton Pty Ltd (1993) 113 ALR 448 (at p.459) in joint judgment Dean, Toohey, Gaudron and McHugh JJ observed:
Mr McElwaine asserted that the applicant had sought, in his application to the Commission, reinstatement to his former position. However, subsequent events led to his acceptance of alternative employment which made reinstatement impractical in the circumstances. He submitted therefore, "that this is appropriately just a compensation case"2. Mr McElwaine disagreed with the conclusions drawn, by Mr Gardner, from New Town Timber & Hardware, and stressed the importance of understanding exactly what was decided in that case. He analysed the essential findings of the three Judges and concluded that there was no clear majority view on anything other than the proposition that the power to award compensation, pursuant to s.70(1)(b) of the Act, cannot be utilised if reinstatement or re-employment was not put in issue at the time the application was made. As an alternative to the submission presented by Mr Gardner, Mr McElwaine said there was no majority support in New Town Timber & Hardware for the view that, in order to constitute an industrial dispute, (pursuant to the then provisions of the legislation) the dispute must create industrial disharmony between the employer and its existing employees or that there was a need for union involvement. Mr McElwaine was of the view that New Town Timber & Hardware was irrelevant to the facts of this case or, in the alternative, plainly distinguishable from it, because the definition of 'industrial dispute' had been varied as a result of Act 90 of 1994, along with a new s.31(1A) requiring a Commissioner to take into account the standards of general application contained in Part II of the International Labour Organisation's Convention concerning the Termination of Employment at the Initiative of the Employer. Mr McElwaine said it was wrong to say that the applicant had 'abandoned' his claim for reinstatement, as he had carefully pointed out at all times that the applicant's case was that, because of the intervening fresh employment, reinstatement was impractical. Mr McElwaine rejected Mr Gardener's submission that jurisdiction, pursuant to s.31 of the Act, was confined by the ambit of the industrial dispute which was notified to the President. This, he said, ignores the power of the Commission to permit the making of amendments and was contrary to the conclusion of Slicer J where he rejected a similar argument in Saarinen v University of Tasmania, unreported A23 of 1996 at page 9. Mr McElwaine said it was not correct to say that a claim for compensation was fundamentally different from a claim for reinstatement. He said that reinstatement or compensation were both remedies and, as such, would only be afforded if the Commission concluded that the termination was unfair, in that one or the other of the ILO Conventions were breached. That, he said, was the ambit of the dispute. What remedy should then flow, he further contended, was a consequence of finding that the termination was unfair. Mr McElwaine argued that the submission of Mr Gardener on this issue, fundamentally misconceived the distinction between the dispute and the affording of a remedy in respect of the dispute. Finding Having considered all the issues presented by the parties, I would have to conclude that the Full Court in New Town Timber & Hardware is authority, in relation to the Industrial Relations Act 1984 - as it stood at the time the application was made - for at least the proposition that a commissioner has jurisdiction to order a payment of compensation by an employer to an employee who has been dismissed only when reinstatement is being sought by the applicant. In my view, no other reasonable interpretation can be placed upon the judgments of Green CJ (as he then was) and Underwood J in that case. As Green CJ said, at page 82:
To the same effect is the judgment of Underwood J, where, at pages 99-100, he adopted as applicable to the case then under consideration the reasoning of the Full Court of Western Australia in Robe River Iron Ore Associates v. Association of Draughting, Supervisory and Technical Employees of Western Australia (1987) 68 WAIG 11, and he went on to hold that it was a condition precedent to the Commissioner having jurisdiction to order a money payment that he have before him the issue of whether reinstatement or re-employment was possible or practical. The factual position in this case is that, at the time the application was made the applicant sought reinstatement as the remedy to the dispute. However, at the time I was required to make a decision on this question, that is the 22 August 1997, Mr McElwaine submitted that the applicant:
Mr McElwaine then went on to suggest to the Commission that, the applicant's position was no different to that stated on the first day of the hearing (detailed at page 1 above). I would have to conclude, it is not the case that the application for reinstatement remains, but that it is contended that reinstatement or re-employment are neither possible nor practical. The reality is, in my view, the question of reinstatement of the applicant has been withdrawn and the applicant now only seeks monetary compensation. I believe it makes no difference that a claim for reinstatement was made at the time of the application. The question is, what issues fall for the determination of the Commission when asked to make an order and, if reinstatement is not then sought, the Commission is in no position to determine whether reinstatement was possible or practical so as to give rise to a power to make an order for the payment of money. Given the foregoing, I hereby determine, on the facts and circumstances of this threshold matter, the Commission has no jurisdiction to entertain this application, and I so Order.
R J Watling Appearances: Date and place of hearing: |