TASMANIAN INDUSTRIAL COMMISSION

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

Joshua John Strudwick
(T9604 of 2001)

and

Irish Murphy's Pty Ltd
ACN 004 897 198

Industrial dispute - alleged unfair termination of employment - jurisdiction - constitutional corporation - federal award - found no jurisdiction - hearing discontinued - file closed

REASONS FOR DECISION

On 7 June 2001, Joshua John Strudwick (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 with Irish Murphy's Pty Ltd arising out of the alleged unfair termination of his employment.

On 15 June 2001 the President convened a hearing before myself at the Supreme Court, Cameron Street, Launceston to commence at 3.30pm on Tuesday 3 July 2001.

When this matter came on for hearing Ms J Dunn, of the Launceston Community Legal Centre, appeared on behalf of the applicant. Ms S Butterworth, from the Australian Hotels Association, together with Mrs K Allen, appeared for the employer.

Before proceeding to deal with merits of the application, Ms Butterworth submitted that the Commission lacked jurisdiction to hear the matter. The basis of this argument was that the employer was a constitutional corporation within the meaning of the Workplace Relations Act 1996 [the Commonwealth Act]. Further, the employer was bound by a federal award, namely the Accommodation, Hotels, Resorts and Gaming Award 1998 [the Award]. Ms Butterworth submitted that the Commonwealth Act contained provision for dealing with alleged unfair dismissals and as Commonwealth legislation prevails over State, the applicant did not have access to the State Commission.

There was no contest offered as to the following:

• The employer was a constitutional corporation and was respondent to a federal award.

• The applicant was a probationary employee.

• The employment contract of the applicant was terminated by the employer on 25 May 2001.

Section 30A of the Industrial Relations Act 1984 [the State Act] reads as follows:

"A person who is employed, or was formerly employed, under a Federal award and to whom the termination provisions contained in Division 3 of Part VIA of the Commonwealth Act do not apply may apply to the Commission for the hearing of a dispute specified in section 29(1A)(a) or (b)."

The relevant sections of the Commonwealth Act are found in Division 3 of Part VIA.

Section 170CB[1] reads as follows:

"(1) Subdivision B applies, in so far as it relates to an application to the Commission for relief in relation to the termination of employment of an employee on the ground that that termination was harsh, unjust or unreasonable, if the employee concerned was, before the termination:

(a) a Commonwealth public sector employee; or

(b) a Territory employee; or

(c) a Federal award employee who was employed by a constitutional corporation; or

(d) a Federal award employee who was a waterside worker, maritime employee or flight crew officer, employed in the course of, or in relation to, trade or commerce between Australia and a place outside Australia, between the States, within a Territory, between a State and a Territory, or between 2 Territories."

It is clear that to access the Termination of Employment provisions of the Commonwealth Act, a pre-condition is that the employee, immediately prior to the termination, must be employed by a constitutional corporation.

When read in conjunction with Section 30A of the State Act, it logically follows that an employee of an employer, which is not a constitutional corporation but respondent to a federal award, would have access to the State jurisdiction as Division 3 above does not apply to such a person.

Section 170CC[1] states:

"(1) The regulations may exclude from the operation of specified provisions of this Division specified classes of employees included in any of the following classes:

(a) employees engaged under a contract of employment for a specified period of time or a specified task;

(b) employees serving a period of probation or qualifying period;

(c) employees engaged on a casual basis for a short period;

(d) employees whose terms and conditions of employment are governed by special arrangements providing particular protection in respect of termination of employment either generally or in particular circumstances;

(e) employees in relation to whom the operation of the provisions causes or would cause substantial problems because of:

(i) their particular conditions of employment; or

(ii) the size or nature of the undertakings in which they are employed."

Regulation 30B[1] identifies excluded employees in the following terms:

"(1) For subsection 170CC(1) of the Act, the following kinds of employees are excluded from the operation of Subdivisions B, C, D, E and F of Division 3 of Part VIA of the Act:

(a) an employee engaged under a contract of employment for a specified period of time;

(b) an employee engaged under a contract of employment for a specified task;

(c) an employee serving a period of probation or a qualifying period of employment, if the duration of the period or the maximum duration of the period, as the case may be, is determined in advance and, either:

(i) the period, or the maximum duration, is 3 months or less; or

(ii) the period, or the maximum duration:

(A) is more than 3 months; and

(B) is reasonable, having regard to the nature and circumstances of the employment;

(d) a casual employee engaged for a short period, within the meaning of subregulation (3);

(e) a trainee whose employment under a traineeship agreement or an approved traineeship:

(i) is for a specified period; or

(ii) is, for any other reason, limited to the duration of the agreement;

(f) an employee:

(i) who is not employed under award conditions; and

(ii) to whom subsection 170CC(3) or (4) of the Act applies."

Whilst the question was not debated at any length, it is likely that the applicant in the instant case is an excluded employee by virtue of his probationary status.

Ms Dunn submitted that the applicant met the requirements for an application under Section 30A in that he is a person employed under a federal award and the termination provisions of Division 3 of Part VIA do not apply to him because he is an excluded employee.

Ms Butterworth submitted that Section 30A is designed to give employees who are employed by other than a constitutional corporation, but bound by a federal award, access to an unfair dismissal jurisdiction. She instanced, for example, employees of sole traders or partnerships.

Ms Butterworth further submitted that Division 3 did actually apply in the instant case, but that Section 170CC goes on to exclude certain classes of employees, including probationers, from claiming any relief. As such the applicant could not access the State jurisdiction through Section 30A.

Ms Dunn submitted that there was no inconsistency between the Commonwealth Act and the State Act. Section 170CB is concerned only with placing limits on the classes of employees who may apply for relief in the federal jurisdiction. There is no suggestion that the section is intended to create an exclusive jurisdiction over federal award employees employed by constitutional corporations.

Ms Dunn cited Sections 152[1A], 170HB, 170HC and 170LZ of the Commonwealth Act as lending support to her contention that Section 170CB should not read as intending to exclude the State jurisdiction over federal award employees employed by constitutional corporations.

Ms Dunn referred to the judgement in City of Mandurah v Hull1 in which the Western Australian Court of Appeal had to decide whether federal award employees could access the unfair dismissal jurisdiction of the Western Australian Industrial Relations Commission. On the question of inconsistency between the Commonwealth and State, Anderson J said:2

"24 So the first question is whether, on the subject of unfair dismissal, the Commonwealth parliament did, within the Workplace Relations Act as it stood at the material time, authorise the Australian Industrial Relations Commission to make and maintain an award containing provisions with respect to unfair dismissal to the exclusion of State law. It seems to me that on that question, s.152(1A) of the Workplace Relations Act 1996 is decisive. At the material time, it provided that:

'If a State law provides protection for an employee against harsh, unjust or unreasonable termination of employment (however described in the law), subsection (1) is not intended to affect the provisions of that law that provide that protection, so far as those provisions are able to operate concurrently with the award.'

25 Subsection (1) is, of course, the subsection which provides that if a State law or State award is inconsistent with or deals with a matter dealt with in a Federal award, the latter prevails 'and the former, to the extent of the inconsistency or in relation to the matter dealt with, is invalid'.

26 Subsection (1A) is a clear expression of legislative intent that Federal awards are not to be an exhaustive statement of the rights and obligations of the parties with respect to unfair dismissal. I see no reason why that statement of intent should not be given full effect. The result is that there can be no indirect inconsistency between the Federal award and the State law on the 'cover the field' test. The State law will be effective except to the extent that it cannot operate concurrently with the award, ie, for present purposes, except to the extent that there is a direct inconsistency or collision between them. ..."

And later:3

"33 ... In my opinion, it is impossible to contend that the Workplace Relations Act intended to cover the field on the subject of unfair dismissals ..."

In the same judgement McKechnie J dealt with the definition of "employee" under the WA Act. He said:4

"50 There is nothing expressed within the Industrial Relations Act which limits the definition of 'employee' to non-Federal award employees.

51 Nor, in my opinion, is there any warrant for holding that such an intention of Parliament was necessarily to be implied. On the contrary, the Industrial Relations Act, read as a whole, necessarily comprehends that employers and employees may be subject to both Federal awards and State awards.

52 The system of industrial relations in Australia is that there are two inter-related systems. The Commonwealth system applies to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State (Constitution s.51(35)) and also in respect of Federal entities.

53 A State may also make laws for the peace, order and good government of the State in respect of industrial relations. Both State laws and Commonwealth laws can exist closely: Shuttleton v Cain (1997) 77 WAIG 1073; R v Clarkson; Ex parte General Motors Holden Pty Ltd (1976) 134 CLR 56.

54 Section 29 is in the widest terms and gives rights to individuals to take action in the Industrial Relations Commission for relief against unfair dismissal. These rights extend not only to those covered by awards but also to those workers who are subject to individual contracts of employment. Some employees may be subject to both Federal and State awards. The coverage given by a Federal award may be very limited. It is not to be supposed that such employees would be shut out from the State system in the absence of clear and unambiguous language."

The definition of "employee" under the Tasmanian Act is similarly broad and to that extent City of Mandurah is persuasive. The one major difference is the existence of Section 30A in the Tasmanian Act and the absence of an equivalent provision in the WA legislation.

Ms Dunn submitted that there is a presumption that the legislature intends that its words be given their ordinary meaning.5 She submitted that it was contrary to the rules of statutory interpretation to look first to extrinsic materials for the meaning of a provision and then to the provision itself, or to draw inferences about legislative intent from extrinsic materials when a provision is clear and unambiguous.6

Section 8B of the Acts Interpretation Act states:

"(1) Subject to subsection (2), in the interpretation of a provision of an Act, consideration may be given to extrinsic material capable of assisting in the interpretation -

(a) if the provision is ambiguous or obscure, to provide an interpretation of it; or

(b) if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable, to provide an interpretation that avoids such a result; or

(c) in any other case, to confirm the interpretation conveyed by the ordinary meaning of the provision.

(2) In determining whether consideration should be given to extrinsic material, and in determining the weight to be given to extrinsic material, regard is to be given to -

(a) the desirability of a provision being interpreted as having its ordinary meaning; and

(b) the undesirability of prolonging legal or other proceedings without compensating advantage; and

(c) other relevant matters.

..."

Ms Dunn submitted that the ordinary meaning of Section 30A is not ambiguous or obscure nor does it lead to a result that is manifestly absurd or unreasonable. Ms Dunn said:7

"The section simply permits those classes of employees who do not have access to unfair dismissal remedies in the Federal jurisdiction to apply for relief in the State jurisdiction."

Ms Dunn further contended that to read Section 30A as if it refers only to federal award employees not employed by a constitutional corporation is to import words into the provision and thereby change its meaning.

Ms Butterworth submitted that it was appropriate in the current circumstances to look at extrinsic material, specifically the Hansard debates, to determine the meaning of Section 30A. She said:8

"Given the inconsistency between section 30A and the provisions contained in the Workplace Relations Act it's quite unclear whether it was the intent of the Tasmanian legislation to include those employees that are specifically excluded or precluded under the Workplace Relations Act."

I agree with Ms Butterworth. Without the assistance of the Hansard debates, I could only conclude that either interpretation is equally open.

In the House of Assembly debate of 5 September 2000 the following exchange took place:

"Mr GROOM - We have proposed other words for section 30A. This is an interesting provision that gives employees employed under a Federal award the right to apply to the Tasmanian Industrial Commission for hearing of a dispute in certain situations. We believe that should be limited and not apply to those categories of employees who have been expressly excluded by the Federal or Commonwealth Parliament. We see some constitutional issues involved in this provision. I do not know whether the minister has had legal advice on that question and whether in fact this is constitutional but we believe that it should be limited and that is why we are proposing these words. I move -

That clause 16 be amended by leaving out proposed section 30A and inserting

'30A. A former employee who was employed under a Federal Award and who is excluded from seeking relief under Subdivision B of Division 3 of Part IVA (sic) of the Commonwealth Act only by reason of them not being an employee mentioned in the Commonwealth Act, section 170CB(1)(a) to (d) may apply to the Commission for the hearing of a dispute specified in Section 29(1A)(a).'

Dr PATMORE - This amendment from the opposition seeks to reword the bill's new section 30A which provides for Federal award-covered employees excluded from Federal termination of employment provisions to have their unfair dismissal access to the Tasmanian Industrial Commission.

As far as we can tell, although the wording is different, the effect is much of a muchness. The only certain change is that the amendment would limit access to the commission for a dispute relating only to unfair dismissal. The bill also provides for applications to be made in respect of severance pay arising from redundancy but the amendment excludes this. I do not know whether this is deliberate or not.

The Government's bill was intentionally framed to include severance pay type of matters and the issue is one of asking if the Federal Commission will not or cannot give such employees a hearing and they are precluded by this amendment from taking it to the State Commission, where do those people turn to for relief? So the Government does not support the amendment.

Amendment negatived."

The intent of Mr Groom's proposed amendment is quite clear and, if passed, would have supported the position of Ms Butterworth. It was however rejected by the Government for reasons which appear unconnected with the current issue.

This clause was debated in the Legislative Council on 16 November 2000. It would appear that members had engaged in a briefing with the industrial representative of the Government. The debate that followed sought to confirm the outcome of that briefing:

"Mr Fletcher - I wonder would the honourable Leader do us the service of putting a summary of the advice from the industrial representative on the Hansard so we can have an official record of what was said at the meeting?

Mr AIRD - No, I will let the honourable member do that.

...

Mr HARRISS - Thank you, Mr Chairman, and I do thank the honourable Leader for the courtesy of taking the call at an earlier time so that this process can be properly seen to its conclusion, and I do appreciate that.

There is a clear position, Mr Chairman, which I understand is the circumstance prevailing in the bill before us. My understanding is - and I would like the honourable Leader if he cannot confirm this without taking advice to take advice to in fact confirm this - that if a person is employed by a constitutional corporation under the Federal legislation and if that person is also a person who is employed on probation - somewhere I have lost my amendment.

...

Mr HARRISS - It encompasses the issues related to this very important matter of delivering to employees an opportunity to seek redress in the Tasmanian Industrial Commission. There are some classes of employee - those that are employed by a constitutional corporation and who may be a probationary employee engaged under a contract of employment for a specified period of time or a specified task, those that are employees engaged on a casual basis or daily hire or weekly hire and clearly if they are employed by a constitutional corporation, and a constitutional corporation is a defined term in the Federal act - and I will not bore honourable members with what that is, but I do have it here in front of me - clearly those classes of employees under the bill before us, the new clause 30A, have no redress under the provisions of this bill. That is my understanding and that is the understanding, I think, the honourable member for Nelson also has, having recently been informed that that is the case. To make it absolutely clear for all the players in the game - both employers and employees - that comment is required on the Hansard from the Leader to confirm what I have outlined as my understanding of the new clause 30A currently before the Chair.

Mr AIRD - Mr Chairman, a Federal award-covered employee who is employed by a constitutional corporation has no access to the TIC. That is it; that is the fact.

Mr Wilkinson - And that's the intention of this legislation as far as the Government is concerned?

Mr AIRD - That is right, exactly."

It is thus clear from this debate that the intent of Parliament was to exclude federal award covered employees who are employed by a constitutional corporation from accessing the unfair dismissal provisions of the State Act.

The ordinary meaning of the words in Section 30A are ambiguous. The intent of Parliament as identified in the Legislative Council debate is at least open on these words and cannot be construed as changing the ordinary meaning of the clause. It is therefore appropriate that I adopt the clear intent of Parliament as the meaning of Section 30A.

I accept the preliminary application of Ms Butterworth and determine that this Commission lacks the jurisdiction to further hear the matter.

Pursuant to Section 21 of the Act I refrain from further hearing the matter and the file is closed.

Tim Abey
COMMISSIONER

Appearances:
Ms J Dunn, of the Launceston Community Legal Centre, for Mr J Strudwick.
Ms S Butterworth, of the Australian Hotels Association, with Mrs K Allen, for Irish Murphy's Pty Ltd.

Date and Place of Hearing:
2001
July 3
Launceston

1 WASCA 216 [16/8/2000]
2 Supra, paragraphs 24-26
3 Supra, paragraph 33
4 Supra, paragraphs 50-54
5 Cooper Brookes [Wollongong] Pty Ltd v Federal Commissioner of Taxation [1981] 147 CLR 297; Saraswati v The Queen [1991] 172 CLR 1
6 Blackburn v Davies, Supreme Court of Tasmania, No. LCA80/1993 Judgement No B62/1993
7 Exhibit A1
8 Transcript p. 4