T6651
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Minister for Workplace Standards Authority and Omega Pacific Holdings Pty Ltd
Industrial dispute - alleged underpayment of wages - jurisdiction matter - arbitrated - jurisdiction found INTERIM DECISION This was an application for the hearing of an industrial dispute made under Section 29(1) of the Industrial Relations Act 1984 (the Act) by the Minister for Workplace Standards Authority (the Minister). The dispute was with Omega Pacific Holdings Pty Ltd of Sandy Bay trading as Lipscombe Larder (the Company) and it concerned the alleged underpayment of wages to an employee of the Company, Nicole Yvette Erp of Howrah. Ms Erp had worked for the Company first as a trainee and then as an apprentice: She ceased employment with the Company in May 1996. From the outset the Company sought to dissuade the Commission from proceeding on jurisdictional grounds. The Minister for Industrial Relations the (IR Minister) intervened in order to make submissions seeking to persuade the Commission that it did have jurisdiction to hear this matter. For ease of apprehension I have joined each submission of the Company with the relevant response of the IR Minister. The Company submitted that the dispute was not between an employer and an employee, but, between a former employee and a former employer and, using as a parallel the decision of Deputy President Robinson in the matter G M Marshall and the Minister administering the Tasmanian State Service Act 19841 (Marshall's case), said the definition of "industrial matter" in Section 3 of the Act ought to be read to mean a dispute between a current employer and a current employee: consequently a former employee, as in this case, was not eligible to claim the existence of a dispute. Marshall's case found that the then reference to an employee in Section 29(1) meant that a former employee was ineligible to avail of that Section. To complete the picture it should be noted that Section 29 was later amended (that is in 1994, after Marshall's case) to provide specifically in a new subsection (1A) that a former employee was eligible to apply for a dispute hearing (in a matter of termination of employment). Relying on the New Town Timber and Hardware Case2 (the New Town Timber case) the Company, quoting from the separate decisions of Justices Green and Underwood in that case, submitted that because the Minister was not a party to the dispute (which should be between the employee and the employer) and as the employer/employee relationship had ended, there was no industrial dispute because it did not pertain to the relationship between employers and employees. The Company also submitted that in the same way as noted by Justice Zeeman in that case the dispute did not have an industrial character. In answer to the submission that the definition of "industrial dispute" in Section 3 of the Act did not allow consideration of a former employee, the IR Minister submitted that plain English language meant that, if the Act allowed for reinstatement the clear implication was that a claim could be made by an ex-employee and to suggest that the terms of the Act (in Section 3(1)) precluded an ex-employee was a fatuous proposition. The word "employee" must be read down to include an ex-employee or a former employee. The question as to the Minister's status before the Commission because he was not a direct party to the dispute had been decided in some previous cases and in particular, in the matter of the Minister for Industrial Relations and Training and Zoron Pty Ltd (trading as Silvio's Pizza)3, the Commission, as presently constituted, was satisfied that the Minister had the power to proceed under Section 29 of the Act and said: "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."4 There were quite a number of areas under the Act whereby the Minister or the IR Minister had been able to make applications to the Commission in respect of employees with whom they had no employment relationship. These rights or powers had been used by the Ministers for the time being on a number of occasions in the past without question. This was intended by Parliament so that the Ministers, from time to time, could act in the public interest. The Company relying on a reference to the New Town Timber case had also submitted that the dispute did not have an "industry character". The IR Minister dismissed this submission on the basis that the term "industry character" was peculiar to Federal Industrial legislation, but, was not found in Tasmanian legislation and hence it had no significance in this jurisdiction. The Company submitted that because the Act provided specifically in Sections 48, 49, 50, 79 and 81, for the recovery of monies by reason of an award breach such recovery was not a matter to be dealt with under Section 29(1) of the Act. In response to this argument of the Company that breaches of award procedures are provided for elsewhere in the Act and not under Section 29, the IR Minister pointed out that the references in the Act tying matters of breaches of award and his entitlement to lodge applications for dispute hearings in that regard showed the illogical submissions of the Company. The IR Minister made reference to the provisions under the "industrial dispute" definition in Section 3(1) of the Act and the appeal rights under Section 70 which were introduced into the Act by Parliament to enable the Ministers to proceed under Section 29(1), to a dispute hearing in relation to an award breach. The IR Minister produced copies of Hansard to show this clear intent of the legislation surrounding these points. The Company submitted that on the basis again of the New Town Timber case, there was no jurisdiction for the Commission to award compensation or, if there was, it was extremely limited. The IR Minister said this application sought an entitlement, the wages due to Ms Erp, under the relevant award; the application was not seeking compensation of the kind sought in the New Town Timber case which related to a claim for compensation for superannuation payments lost as a result of employment termination. The New Town Timber case did not say that the Commission had no power to award sums of money, it said, in an alleged unfair dismissal application the Commission could not award money compensation in the absence of a claim for reinstatement. The present application was not apposite to the New Town Timber case. The IR Minister further submitted that the full court decision in the New Town Timber case was made under 1992 legislation, but, in 1994 the legislation was changed so that matters pertaining to this application were brought into jurisdiction, in particular the matter of award breaches and the Minister's entitlement to make an application for an industrial dispute thereby and therefore the New Town Timber case did not apply. The Company submitted that as the dispute arose over a matter contained in a registered enterprise agreement, the Commission was expressly excluded from jurisdiction by virtue of the definition of "industrial dispute" in Section 3(1) of the Act which excluded a matter relating to an enterprise agreement which contained a grievance procedure providing for private arbitration. In relying on this ground the Company acknowledged a difficulty in that the Lipscombe Larder Enterprise Agreement 19945 (the 1994 Agreement) did not refer to arbitration, but, rather mediation. The Company submitted that the private mediation provision did come within the meaning of the definition of "industrial dispute" relied upon above. The IR Minister submitted that because the 1994 Agreement referred only to mediation and not arbitration in its grievance procedure prescription, the Commission's jurisdiction over a dispute involving the 1994 Agreement was not precluded by reference to the definition for "industrial dispute" in Section 3(1) of the Act which only precluded an enterprise agreement containing private arbitration for settling grievances. The IR Minister said the words mediation and arbitration did not have the same meaning. The Company submitted that Ms Erp was employed under the provisions of the 1994 Agreement and the wages she received were those specified in the 1994 Agreement, therefore, the Minister's claim for award wages to be applied had no standing and ought to be dismissed. The Company further submitted that Ms Erp had signed the 1994 Agreement and therefore she was a party and bound to its provisions. The IR Minister pointed out that the 1994 Agreement Scope expressly covered pastry chefs, kitchen hands and service assistants employed by the Company; as Ms Erp worked for all her time with the Company as a trainee or an apprentice she did not come under the terms of the 1994 Agreement, but, rather the relevant award, hence the Minister's application was within jurisdiction. In the same way the wage rates specified in the 1994 Agreement were for the three categories mentioned above only and could not be held to accommodate a trainee or an apprentice. The IR Minister also said that, even though Ms Erp had signed the 1994 Agreement, it still did not specify her category of employment and hence it did not provide for her. The Minister made the following additional submissions:
The Minister made one or two other submissions on other factors (eg markings on Ms Erp's training contract, but, I do not consider them persuasive). In response to the Ministers' submissions the Company repeated and stressed some of its earlier points and made the following relevant supplementary or additional submissions:
Decision It is important to note that this application was made first in December 1996. Since that time relevant parts of the Act were amended by Act No. 18 of 1997, which commenced operation on 28 June 1997. The significance of any amendments to the Act made after the date of this application will be noted in this decision as they arise. I accept the Ministers' submissions in that I am persuaded against the main points raised by the Company in its submissions claiming lack of jurisdiction. In relation to this matter I do not accept the ruling of Deputy President Robinson in Marshall's case as apposite. This application is completely different in that the Minister made the application in accordance with the provisions of Section 29(1) of the Act: it is not a matter of a former employee applying for the dispute hearing as submitted by the Company. The eligibility of the Minister to apply for a dispute hearing existed prior to this application and was not affected by amendments contained in Act No. 18 of 1997. At the time of this application the definition of "industrial dispute" in the Act as it related to this application was: ""industrial dispute" means a dispute relating to an industrial matter and includes a dispute relating to - (a) ... (ab) a breach or an alleged breach of an award ..." At the time of this application the definition of "industrial matter" in the Act, as it related to this application, was: ""industrial matter" means any matter pertaining to the relations of employers and employees and, without limiting the generality of the foregoing, includes - (a) a matter relating to - (i) rates of remuneration ..." The Company submitted that this dispute did not pertain "to the relations of employers and employees" because Ms Erp was a former employee and hence she was excluded under the definition of "industrial matter". In relation to the situation prior to Act No. 18 of 1997 I am satisfied that the list of matters included as "industrial matters" contains examples that may be construed as applying to former employees, eg., "(vii) the employment or non employment of persons of a particular sex ..." and "(i) rates of remuneration ...". On this basis I conclude that Parliament intended that an "industrial dispute" was not restricted to matters pertaining to current employees alone. Since the commencement of Act No 18 of 1997 it is clear that "industrial matter" includes "(b) a breach of an award ..." which clearly brings this matter into jurisdiction as an industrial dispute. For these reasons, therefore, I am satisfied that this dispute was within the jurisdiction of the Commission both before and after the commencement of Act No. 18 of 1997. I reject the Company's submissions as to the Commission's jurisdiction to order money payments in this case and I accept the IR Minister's contentions in that regard. In this matter the Commission is dealing with specified award amounts alleged not to have been paid in full - it is hard to imagine the Commission exceeding its powers in such circumstances. The Company's arguments in this area were very much contingent upon employment termination and reinstatement considerations which were not relevant in this application. I consider the distinction between a payment in lieu of reinstatement or in compensation for unfair employment termination and award specified payments due for days worked to be quite clear. I also reject the Company's submissions that the Commission did not have jurisdiction because the 1994 Agreement was involved: I accept the submissions of the IR Minister on that subject in all respects and I also note that the later amendments do not change this position. In the Company's response to the IR Minister's submissions the January 1994 removal of references to apprentices in the Bakers Award was relied upon, but, be that as it may, the absence of any reference to apprentices in the 1994 Agreement meant it did not cover Ms Erp. The other responses of the Company do not need any comment, I believe. The additional submissions made by the Minister were not such as to directly or sufficiently counteract the submissions of the Company as to jurisdiction and I therefore do not propose to comment on them. For all the abovementioned reasons I dismiss the Company's jurisdictional objections: the application will be re-listed for the continuation of the hearing in the near future.
P A Imlach Appearances: Date and place of hearing: 1 Tasmanian Industrial Commission, T4401 of 1993, 17 June 1993 |