T10011
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Graham Maitland Marshall and Minister Administering the State Service Act 2000
Industrial dispute - s.29(1) - no employer/employee relationship - no dispute within meaning of Act - application dismissed REASONS FOR DECISION [1] Graham Maitland Marshall lodged an application with the Commission, pursuant to s.29(1A) of the Industrial Relations Act 1984, for a hearing over an industrial dispute with his "current employer", the "Education Department, State of Tasmania". [2] At the commencement of the hearing on Thursday 28 February 2002, the Commission questioned Mr Marshall about his application. This arose because Mr Marshall maintained he was currently employed; yet the application lodged with the Commission was under s.29(1A) of the Act. This section enables a former employee to make an application if in dispute with their former employer. A second issue considered at that time, centred around who precisely was Mr Marshall's current employer - was it the Education Department, State of Tasmania, as he claimed. [3] After consideration Mr Marshall sought and was granted leave to amend his application to be brought pursuant to s.29(1) of the Act and cited his current employer as the Minister Administering the State Service Act 2000. [4] Mr Marshall's application states that he was in dispute with his current employer over:
[5] Mr Marshall addressed the Commission on each of those issues. [6] In response, Mr Cleaver, for the Minister Administering the State Service Act 2000, denied that Mr Marshall was currently an employee of the employer. [7] Mr Cleaver presented an exhibit (C.1.) which identified the following: [8] On 22 May 1979 Mr Marshall made a written request to the then Director-General of Education requesting that he be considered for retirement on the grounds of ill health. A certificate from his doctor was attached to that request. He also requested that any half-pay sick leave be considered for conversion. [9] On 28 May 1979 the Education Department wrote to the Retirement Benefits Fund Board requesting consideration of Mr Marshall's application to retire on the grounds of ill health. [10] On 1 August 1979 the Retirement Benefits Fund Board advised the Education Department that the Board had determined that, if Mr Marshall were to retire on the grounds of ill health he would be admitted to pension with effect from the date of his retirement and his pension would be the subject of review in three years time. [11] On 14 August 1979 Mr Marshall was advised by the Education Department of that decision. He was also advised that his retirement had been accepted by the Education Department from the last day on which he was entitled to be paid sick leave; that is, 13 July 1979. [12] On retirement Mr Marshall was provided with an allowance in lieu of Long Service Leave in accordance with the State Employees (Long Service Leave) Act 1950. FINDING [13] Having considered the submissions of both Mr Marshall and Mr Cleaver, I would have to conclude that the Minister Administering the State Service Act 2000 does not currently employ Mr Marshall. [14] Indeed, there was no evidence before me to enable me to find that Mr Marshall had any employment relationship with either the Education Department, as it was known in 1979, or as currently, the Minister Administering the State Service Act 2000, since his retirement on the 13 July 1979. Therefore it must follow, in the absence of any employer/employee relationship there could hardly be an industrial dispute within the meaning of s.29(1) of the Industrial Relations Act 1984, which gives the Commission jurisdiction to determine Mr Marshall's claim. [15] Given the foregoing, and pursuant to s.21 of the Industrial Relations Act 1984, I dismiss the application, and I so Order
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