T10381
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Australian Workers' Union, Tasmania Branch and Tasmanian Alkaloids Pty Ltd
Industrial dispute - alleged unfair termination of employment - jurisdictional issues - whether reasonable expectation of continuing employment - whether commission can hear dispute regarding contract of employment with a fixed end date - common law contracts - jurisdiction found REASONS FOR PRELIMINARY DECISION [1] On 20 August 2002, The Australian Workers' Union, Tasmania Branch ("the union"), applied to the President, pursuant to s.29(1) of the Industrial Relations Act 1984 ("the Act"), for a hearing before a Commissioner in respect of an industrial dispute with Tasmanian Alkaloids Pty Ltd arising out of the alleged unfair termination of employment of Mr Angus Piercey. [2] On 23 August 2002, the President convened a hearing at the Supreme Court, Cameron Street, Launceston, Tasmania before myself, to commence on Friday 19 September 2002 at 2.00 pm. The hearing was adjourned, at the request of the respondent, until 14 October 2002. On that day, Mr R Flanagan appeared for the applicant union and Mr A Cameron of the Tasmanian Chamber of Commerce and Industry appeared for the respondent employer. The proceedings were adjourned into conference but the dispute was unable to be settled through the conciliation process. Further hearing days were scheduled, but, by correspondence dated 17 January 2003, Mr Cameron advised that he would be submitting that the Commission lacked jurisdiction to hear the matter and that the jurisdictional issue should be determined before the matter proceeded to a hearing. The union agreed with this approach, and Mr Cameron presented his preliminary arguments on Monday 20 January 2003. There was also a workplace inspection on that day. There was a further hearing on Wednesday 29 January 2003 during which Mr Flanagan presented submissions on the jurisdictional issues. Background [3] Tasmanian Alkaloids Pty Ltd processes poppies at a plant at Westbury. There is a large workforce, a number of whom have their conditions of work regulated by contracts, described as "fixed term" contracts. It was agreed between the parties that the nature of work performed by these employees is award free. [4] Mr Angus Piercey was employed on a series of "back to back" contracts from 20 August 2001 until 1 August 2002, when he was dismissed for alleged misconduct. He was employed, variously, as a plant attendant and a supervisor. Allegations were made that he had tampered with seed samples and harassed other employees. He was dismissed on 1 August 2002 and paid two weeks' wages in lieu of notice. [5] The contracts entered into between the parties were for the following periods:
[6] As at the date of dismissal the final contract was half way through its term. [7] The contract gives both parties the unqualified right to terminate with the giving of two weeks' written notice. JURISDICTIONAL ISSUES The Respondent's Submissions [8] Simply put, Mr Cameron submitted for the respondent that because the parties had entered into a contract that had an end date there was no expectation of continuing employment and therefore the Commission has no jurisdiction to hear and determine the matter. The basis for his argument is section 30(3) of the Act, which says:
[9] There was no reasonable expectation of work beyond 3 November 2002, Mr Cameron said. [10] Further, he submitted that the employee cannot genuinely seek reinstatement to his former position as the position no longer exists due to the effluxion of time. He relied upon the principle set out in the decision of the Full Court of the Supreme Court of Tasmania in New Town Timber and Hardware v Anthony John Gurr and Robert Gozzi No. FCA100/1994 (1995) 5 Tas R 71 ("New Town Timber and Hardware"). [11] Mr Cameron said that section 30(3) came about through amendments to the Act in 2000 that brought it into line with the federal Workplace Relations Act. Although the words are different, the effect is the same. Under the federal act, an employee engaged under a contract of employment for a specified period of time is excluded from the federal jurisdiction, as is a casual employee, ie, employees with no expectation of ongoing employment. The intent and the impact of the Tasmanian act is the same. Contracts for a specified period of time are excluded from the jurisdiction of the Tasmanian Industrial Commission, by virtue of section 30(3). [12] Mr Cameron citied Dadey v Edith Cowan University 308/96 ("Dadey") as a precedent case, and referred to a quote within it made by Von Doussa J in the matter of Phillip Martin Andersen v Umbakumba Community Council 1995 AILR 3-027, ("Umbakumba") in which he said:
[13] That was a useful definition of a contract for a specified period of time, Mr Cameron said. [14] The Judicial Registrar in Dadey said that a provision which enabled the university to terminate the contract in the case of grave professional misconduct or a wilful breach or continued neglect of duties could not have the effect of making the period of employment indeterminate. The Judicial Registrar's decision was upheld on two appeals, firstly before Madgwick J and then to the Full Court of the Industrial Relations Court. [15] Madgwick J, when considering whether a contract could still be regarded as a fixed term contract, when it allowed the parties to it to terminate the employment by the giving of notice, said that, in some circumstances, a contract can be prematurely terminated at the instance of one party and that did not necessarily mean that the contract was not one for a specified term. [16] The Full Court, in hearing the appeals of Dadey and Fisher v Edith Cowan University (W1 of 1453 of 1996) 2/4/97 ("Fisher"), (both of which cases dealt with the same issues and the same employer), dismissed the appeals and upheld Madgwick J's decisions. [17] In the Australian Liquor, Hospitality and Miscellaneous Workers Union and Seabrook Golf Club (T7909 of 1997) ("Seabrook Golf Club"), in the Tasmanian Industrial Commission, Imlach C found that an employee who had been employed for eight years on a number of contracts had not been unfairly dismissed when the club failed to re-appoint him when a contract came to an end. He found that a subsequent contract would be an appointment to a position and that section 3 of the Act precluded the Commission from dealing with appointments and promotions. Imlach C relied upon the decision of the Supreme Court of Tasmania in the case of Saarinen v University of Tasmania A23/1996 ("Saarinen"). [18] Mr Cameron said that in the case of Saarinen, the employee had been employed for ten years on a series of fixed term contracts. The university decided not to offer a new contract of employment. Imlach C's decision [to award compensation] was appealed to the Supreme Court of Tasmania. In the first instance Slicer J found that the Commission could not interfere to order reinstatement, and that there had not been an unfair dismissal of employment. Slicer J quotes from and adopts cases supporting the view that the expiration of time brings a contract of employment to an end and that the Commission cannot make an appointment because it is outside the jurisdiction of the Commission to appoint an employee to an employer's workplace. [19] When appealed to a Full Court, the majority decision in Saarinen was that when a fixed term contract comes to an end there is no termination of employment and that the matter was outside the jurisdiction of the Commission because it related to an appointment or promotion. The Full Court adopted, with approval, the decision in Fisher, and, therefore, Dadey. Reference was made to the High Court decision in State of Victoria v Commonwealth of Australian (1996) 138 ALR 129, where their Honours said:
[20] Mr Cameron related this to section 30(3) of the Act, by saying that a fixed term contract that comes to an end through the effluxion of time removes from the employee a reasonable expectation of ongoing work. This was the case with Mr Piercey, where there was a specified date [on which the contract would end]. The employer cannot be expected to appoint someone and therefore the expectation of continuing employment does not exist. [21] In the case of Ken Farrell and The Crown in Right of State of Tasmania Department of Premier and Cabinet Office of the Premier (T9620 of 2001) ("Farrell") the Full Bench of the Tasmanian Industrial Commission, when considering Mr Farrell's contract, addressed the clause within the contract that provided for either party to give notice, and confirmed the decision of the Commissioner at first instance, by saying:
[22] Further, the Full Bench said that the Commissioner found that the enforcement of the instrument of appointment, ie the contract, was outside of the jurisdiction of the Commission, and the Full Bench agreed with that finding. On appeal to the Supreme Court Crawford J found that, in such a case, the applicant is not left without redress, he is entitled to pursue his claim in the form of an action for money due under a term of his contract of employment in a Court. [23] The Commission, because of the limitations imposed by section 30(3), cannot deal with a contract for a specified period, because there is no expectation of ongoing employment. Mr Piercey may have had an expectation of working until 30 [sic] November, but that is only pursuant to the contract that is in place. The expiration date, as said by the Courts, is the end of the employment and there can be no expectation of work beyond that because the parties have agreed in advance that that is when it will come to an end. Any remedy that is now sought should be pursued through the Courts as a breach of contract because it is a civil matter. [24] Mr Cameron said that the New Town Timber and Hardware decision meant that an employee cannot make application to the Commission for compensation; that the application to the Commission must be in relation to reinstatement (and re-employment as it now stands). In his submissions, the amendments to section 31(1B), made in 2000, do not significantly alter the provisions of the Act, or the decision as set out in New Town Timber and Hardware. The current application to the Commission cannot seek reinstatement or re-employment because that position no longer exists, due to the effluxion of time. The applicant cannot come to the Commission and merely seek compensation. [25] Based on the decision in Saarinen, and also as confirmed by the Full Bench in Blue Ribbon Meat Products Pty Ltd and George Watson Carnie (T9833 of 2001) ("Carnie"), an employee has a right to make an application, but that is the only right that the employee has, until such time as the Commissioner makes a decision. There is not an unfair dismissal until that decision is made. In this case, if the hearing goes to merit, the time that the decision is made will be in the future, and the industrial dispute cannot be settled by reinstatement or re-employment, because there would not be a position in existence to be reinstated to or re-employed in. The Applicant's Submissions [26] Mr Flanagan said that the argument that the appropriate remedy is a civil remedy is not correct because what is being dealt with is an industrial dispute. The union has, as a matter of right, a legislative entitlement to be heard in respect of that industrial dispute, and an industrial remedy was being pursued, that being reinstatement. Civil remedies and industrial remedies are not mutually exclusive propositions. [27] In respect of the argument that there is no expectation of ongoing employment, Mr Flanagan said the Commission could only form a view about that after a full and complete hearing and consideration of the merits of the claim. [28] Mr Flanagan referred to various sections of the Act. [29] At section 3, the definition of an industrial dispute is:
[30] Also at section 3, the definition of an industrial matter is:
[31] Mr Flanagan said that it is clear that the present matter is an industrial dispute as defined by section 3 of the Act. [32] Section 29(1) provides that:
[33] At section 31(1) concerning orders arising from hearings, the Act says:
[34] Mr Flanagan said that the critical word there is "after". [35] At section 20(1) of the Act, it says that:
[36] Section 20(3) says:
[37] Mr Flanagan said that the effect of section 20 is to compel the Commission, in the context of section 31(1), to afford the applicant the opportunity to put the merits of the case before the Commission. It is only after that has occurred that the Commission determines whether or not it will intervene, and, if there is an intervention, what form that will take. It may be, as indicated in section 20(3), that the form of the intervention may not be that sought by the applicant, which, in this case, is reinstatement. [38] Mr Flanagan referred to a decision of the Tasmanian Industrial Commission, Michael Hughes and Tasman Group Services t/a Longford Meat Works (T10339 of 2002) ("Tasman Group Services") [currently under appeal], in which Abey C said, at paragraph 31, that the existence of a contract does not oust the jurisdiction of the Commission to deal with an industrial dispute [dealing with the same issue]. [39] In a decision of the Full Bench of the Commission in Kenneth James Farrell and The Crown in Right of State of Tasmania Department of Premier and Cabinet Office of the Premier (T9287 of 2001) ("Farrell No. 2") [not the same case as the Farrell case previously referred to], the Full Bench said at paragraph 64:
[40] Clearly, Mr Flanagan said, this is an acceptance by the Full Bench of the State Commission that the Commission is empowered to deal with an industrial dispute, even if the issue at hand could be enforced through other processes. [41] Mr Flanagan referred to the decision in Carnie in which the Full Bench said at paragraph 128:
[42] The Full Bench, in that decision, recognised the right of the applicant to a hearing, Mr Flanagan said. [43] The test is whether or not there is a reasonable expectation of continuing employment. The only way that the Commission can form a view about that expectation is if it has evidence before it in order to test that expectation. [44] Mr Flanagan referred to the Workplace Relations Act and the categories of employees excluded by regulation from the termination of employment remedies in that Act, including employees employed for a specified period of time or for a specified task. He said that is not the position of the State of Tasmania, where the Parliament has deliberately sought to have a comprehensive arrangement for access to unfair dismissals in the Tasmanian Industrial Commission. At Act No. 104 of 2000 the Parliament set about codifying the processes for unfair dismissals and ensuring that as many Tasmanian workers as possible would have access to the tribunal. That is borne out by the second reading speech of the then Minister, Dr Patmore. The Minister said:
[45] Mr Flanagan said that the respondent's submission that section 30(3) was designed to reciprocate the structure of the federal Act in relation to the federal exclusion provisions is a fundamentally flawed proposition. Clearly the intention of the Tasmanian Parliament was the absolute opposite, it was to provide for an inclusion mechanism, not one of exclusion. [46] The Minister continued:
[47] Mr Flanagan said that whilst the union's application is for reinstatement, if the Commission considers that reinstatement is impracticable then it is open to the Commission to award compensation but the Commission can only exercise the discretion to intervene after it has heard the merits of the case, consistent with the requirements of section 20(1). [48] In the case of Jason Mark Carr and Tasmanian Alkaloids Pty Ltd (T9859 of 2001) ("Carr"), which concerned an employee who had been employed for a period of approximately five years on a series of contracts, Abey C said at paragraph 37:
[49] Mr Flanagan said that, in the case of Carr, Mr Cameron had relied upon the cases of Seabrook, Fisher and Dadey, cases which are before the Commission in the present matter. Other cases cited in Carr were Rosemarie D'Lima v Board of Management, Princess Margaret Hospital for Children, where there had been a series of 12 fixed term contracts over a period of 18 months. Marshall J said the practice of signing further contracts for alleged periods of temporary employment appears to have been one of mere administrative convenience and cannot compel the Court to ignore the weight of strong countervailing factors indicating a continuous employment relationship. [50] This is the essence of the present case, Mr Flanagan said, the Commission cannot consider the weight of the strong countervailing factors which indicate a continuous employment relationship unless it has had a full and complete hearing of the merits. [51] In Carr, the following extract from the Australian Labour Law Reporter was quoted, in support of the applicant's case:
[52] In Carr, the Commission found at paragraph 77, that:
[53] Mr Flanagan submitted that such is the case in the present instance. The material facts in the case of Carr are very similar to Mr Piercey, so far as the administration of the contracts is concerned. In the present case we have an almost identical argument from Mr Cameron, and, in terms of the contract, a very similar situation. The Commissioner in Carr formed the view that the contracts were not genuinely fixed term contracts. [54] This decision was not appealed. Mr Flanagan submitted that Carr was a very important case, in which the Commission has already considered the structure of administering employment arrangements at Tasmanian Alkaloids. [55] In the case of New Town Timber and Hardware, the Commission should consider the intention of the Tasmanian Parliament as expressed in the Act regarding the test for an employee pursuing reinstatement. The test within the state jurisdiction is the expectation of continuing employment. Mr Flanagan said that it was the union's belief that, on a hearing of the evidence, it would be demonstrated that the contract would not have expired by the effluxion of time. In the absence of evidence it is impossible for the Commission to determine that the contract would have expired. The Respondent's Response [56] In respect of the case of Carr, Mr Cameron said that the decision needs to be looked at in context and the overall circumstances surrounding that case considered, which were substantially different to the present case. [57] In Mr Cameron's submission, the case of Tasman Group Services has no weight at all, because it is subject to appeal. It was not an argument in relation to section 30(3) of the Act. [58] In relation to the Carnie case, Mr Flanagan's argument that every party has a right to make an application to the Commission and then every party has a right to a hearing is incorrect. There is no automatic right to a hearing. This is supported by Farrell. The issue in Saarinen is that it is not until the Commission makes its decision that any rights accrue to any benefits. They have a right to an application, and to a hearing only if there is jurisdiction. [59] The point that Mr Flanagan sought to make in relation to the Minister's second reading speech was that it was inclusive and not exclusive. The reference to the Federal Act's unfair dismissal remedies is the new Section 30A of the Industrial Relations Act. That section does not refer to the matter before the Commission, but to employees under federal awards. That has no relevance because Mr Piercey does not claim that he was employed under a federal award. Mr Cameron said that in the absence of anything specific we cannot read into the second reading speech any clear intention as to section 30 (3). [60] The case of D'Lima, can be distinguished because over a period of about 15 months there were 14 contracts entered into, often retrospectively, and the position of hospital cleaner was one that existed continuously. The situation at Tasmanian Alkaloids is that it is seasonal work and the contracts were signed and offered prior to the expiration of the last contract. [61] Mr Cameron submitted that the operation of section 30(3) only applied to people who had continuing employment, which could not be terminated, that is, any person who was appointed to a position without an expiration date. Therefore, an employer can dismiss an employee on a fixed term contract without needing a valid reason to do so. That may not have been the intention of the legislation, but section 30(3) limits the requirement for a valid reason for termination to those employees who have a reasonable expectation of ongoing employment, he said. [62] FINDINGS [63] The jurisdiction of the Commission to hear and determine cases in relation to alleged unfair termination of employment is derived from the Act: [64] Section 19 - Jurisdiction of Commission:
[65] "Industrial matter" and "industrial dispute" are defined at section 3:
[66] Section 29 enables an organisation, employer, employee or the Minister to apply for hearing in respect of an industrial dispute. [67] In order for the Commission to have jurisdiction there must be an industrial dispute in relation to an industrial matter. In this case, the application before me is in relation to a dispute concerning the alleged unfair termination of employment of a former employee. The essential first question to be determined is: was the termination at the initiative of the employer? If there it was not, then, obviously, the matter can go no further. [68] There is no doubt, from the information provided, that Mr Piercey was an employee and that he was dismissed by his employer for alleged misconduct and that the dismissal occurred half way through the fourth of a series of contracts. This was not a case where the contract of employment had come to an end because of the effluxion of time. Mr Piercey's dismissal was as a result of an act done by the employer. I find that there was a termination at the initiative of the employer. [69] There is an industrial dispute relating to an industrial matter. On the face of it, there is jurisdiction to hear the matter, but the respondent has raised a number of issues, which, they say, need to be determined before the matter can or should proceed. Did the employee have a reasonable expectation of continuing employment? [70] Section 30 sets out the criteria applying to disputes relating to termination of employment. [71] Section 30((1) says:
[72] Section 30(3) says:
[73] If there was no reasonable expectation of continuing employment, for example, in the circumstance of a person employed during the temporary absence of another employee, there can be no reasonable expectation of the employment continuing beyond the time at which the employee being relieved returns to work. In that circumstance the question of whether or not there was a valid reason for dismissal would not normally arise. However, each case must be considered on its merits, for instance, the stage at which the engagement came to an end would be relevant. In the example given, an employee engaged to fill in for another employee would have a reasonable expectation that they would continue in the employment until the return of the person they are relieving for. [74] In a situation where the contract has been brought to an end because the end date on the contract has been reached and that contract has not been renewed, then the question of whether or not the employee had a reasonable expectation of continuing employment involves such questions as: whether the position continues; whether there have been previous contracts; what is the nature of the work performed; whether entitlements continue to accrue from contract to contract; and whether the contracts are genuine short term contracts or simply contrivances designed to avoid industrial obligations? Questions of this nature can only be determined on the hearing of evidence. [75] However, Mr Piercey's case is different to that of a person whose contract has expired. His contract had not come to an end through the effluxion of time. Whilst there was in existence a contract with an end date, it was only half way through its term. [76] I find that Mr Piercey had a reasonable expectation of ongoing employment until 3 November 2002, ie for another three months. Whether he had any expectation beyond that can only be determined through the hearing of evidence and a consideration of the merits of the case. The relevance of any expectation of continuing employment beyond the term of the contract is only in relation to remedy, should he be found to have been unfairly dismissed. [77] In the cases of Dadey and Fisher, authorities relied upon by the respondent, Madgwick J found that when a fixed term contract has expired there is no termination at the initiative of the employer. [78] I accept that where the contract of employment comes to an end through the effluxion of time in circumstances where the parties have agreed that it will come to end at that time, and there is no reasonable expectation of continuing employment beyond that time, then there is no termination at the initiative of the employer. It is not an act of the employer that has brought the employment to an end. However, it is necessary to consider the facts and the circumstances of each situation to determine whether or not a contract is, indeed, a fixed term contract. [79] The Full Court of the Industrial Relations Court of Australia, whilst stating that it was open to Madgwick J, on the terms of the relevant contracts, to hold that the termination of the contract had been effected by the expiration of the period specified in the contract, said that the case had concentrated on questions of law and evidence had not been led as to whether, in the circumstances of that case, there had been a termination at the initiative of the employer. As this was not raised on appeal, the Full Court held that the appeal must fail. The Court said:
[80] The Full Court said that the case had proceeded on a question of law, and the question to be answered had not been clearly formulated. The factual question was whether the circumstances of the case amounted to a termination at the initiative of the employer. The Full Court said:
[81] The undesirability of determining such a matter based simply on submissions from the bar table, without going to evidence, is demonstrated by those comments from the Full Court of the Industrial Relations Court of Australia. [82] Another of the respondent's arguments was that section 30(3) of the Act means that an employer does not need to have a valid reason to dismiss an employee who is employed under the terms of a fixed term contract because they have no expectation of ongoing employment, and that therefore anyone employed on a contract of employment with an expiration date is able to be dismissed at any time without there needing to be a valid reason. That argument, if correct, would mean that, for example, an employee employed on a contract of two years' duration could be dismissed at any time during those two years for any reason or no reason. In my view, the argument is not correct because the Act makes no reference to fixed term contracts, specified periods, expiration dates and the like, it simply refers to a reasonable expectation of continuing employment. An employee in a situation as just described has a reasonable expectation of their employment continuing for two years, and, therefore, must not be dismissed during the term of the contract unless there is a valid reason for doing so. In any event, I have found that Mr Piercey did have a reasonable expectation of continuing employment. Was the contract a fixed term contract and, if so, what would be the effect on the jurisdiction of the Commission? [83] In Dadey, Madgwick J said that the contract which allowed the University to terminate the appointment for grave professional misconduct or wilful breach or continued neglect could not have the effect of rendering the contract indeterminate. However, in my view, and as found in a number of cases, if there is an unqualified right contained within the contract to give notice to terminate before the end of the contract, then it would have the effect of making the period of the contract indeterminate, therefore, not a fixed term contract. This view is supported by a number of the cases cited, eg, Cooper v Darwin Rugby League Inc, CFMEU v BHP Refractories Ltd, Farrell, Farrell No. 2, Umbakumba, and Carr. The cessation date merely records the outer limit of the period beyond which the contract of employment will not run. [84] There is just such a clause within Mr Piercey's contract, which says:
[85] I find that Mr Piercey's contract was not a fixed term contract. [86] Because I have found that Mr Piercey was not employed according to the terms of a fixed term contract, then it is perhaps not necessary for me to address the question of whether the Act excludes employees on fixed term contracts from the unfair dismissal provisions. However, since the question has been raised, I shall address it. [87] The respondent submitted that the mere fact of the existence of a contract that has an end date means that an employee who is a party to such an agreement has no access to the Commission. I reject that argument, for the reasons that follow. [88] One aspect of the argument is that the Act is intended to and/or has the same effect as the federal act, which excludes access to remedy for unfair dismissal to employees engaged on contracts for a specified term or task. Mr Cameron said that section 30(3) of the Act was intended to bring it into line with the federal act in that respect. I do not accept that. The test in the Act is not whether or not there was a contract for a specified period or a specified task, as is the case in the federal act, it is whether the employee has a reasonable expectation of continuing employment. The finding that Mr Piercey's contract is not a contract for a specified period, ie, a fixed term contract, does not have the same significance in this jurisdiction as the federal jurisdiction. [89] I accept the union's submission that there is nothing in the Minister's second reading speech to indicate that it was the intention of the Parliament to replicate the effect of the Workplace Relations Act. The Minister clearly indicated an intention to include employees excluded from provisions of the Workplace Relations Act. It is not logical or reasonable to attempt to read into the Act an intention to exclude employees from the state jurisdiction in the same way that employees under federal awards are excluded from the federal unfair dismissal remedies. Does the existence of a common law contract mean that the Commission has no jurisdiction to deal with the dispute? [90] The respondent submitted that, if Mr Piercey is aggrieved at the termination of his common law contract, then he has civil rights, not industrial rights, in relation to that termination and his only recourse is to pursue a remedy through the Courts for breach of contract. [91] I have already found that there is an industrial dispute about an industrial matter in the present case. I accept the union's submissions to the effect that civil remedies and industrial remedies can co-exist. I do so for the following reasons: [92] The Full Bench of the Commission, in Farrell No. 2 has found that where there is both a common law contract and an industrial dispute, then the Commission, whilst not able to enforce the common law contract, is able to deal with the industrial dispute. [93] Abey C, in Tasman Group Services, found that that the existence of a contract does not oust the jurisdiction of the Commission. Although that decision is currently under appeal, the Commissioner was doing no more than stating what the Full Bench found in Farrell No. 2. There are other examples of the Commission dealing with industrial disputes, despite the existence of common law contracts. Indeed, a number of cases cited during the present hearing are just such cases, including Farrell, Farrell 2 and Carr. If there is an industrial dispute, properly brought before the Commission, then the Commission can hear and determine that dispute, in accordance with the Act. [94] The Commission is not empowered to enforce a common law contract, but is empowered to settle an industrial dispute. The existence of one does not prevent the other. I find that the existence of the common law contract does not prevent the Commission from hearing and determining an industrial dispute in relation to an industrial matter. Does the Commission lack jurisdiction because reinstatement may not be possible? [95] The respondent submitted that the Commission lacks jurisdiction because, due to the effluxion of time, Mr Piercey's former position no longer exists and therefore it is not possible to reinstate him to it. The case of New Town Timber and Hardware was cited in support of this argument. [96] There have been very significant changes to the Act since the case of New Town Timber and Hardware, where one of the findings of the Full Court of the Supreme Court of Tasmania was that a demand for money by a former employee, who was not seeking reinstatement, did not constitute an industrial dispute. The dispute was found not to pertain to the relations of employers and employees and was not a dispute relating to reinstatement as the only remedy sought was the payment of money. In New Town Timber and Hardware the former employee had never sought reinstatement. That case can be differentiated from the instant case on the basis that Mr Piercey has, in fact, sought reinstatement. [97] The definition of "industrial dispute" is now different to that which pertained at the time of the New Town Timber and Hardware case, there have been amendments to the definition of "industrial matter", and the present s.30, which deals with remedy (amongst other things) did not exist. Many of the amendments made to the Act since New Town Timber and Hardware affect sections that are central to the matters raised in these proceedings. These amendments call into question whether or not the case of New Town Timber and Hardware is relevant to the current considerations. [98] Even if the decision in New Town Timber and Hardware still has currency in respect of reinstatement and jurisdiction, a number of points arise: firstly the current application has not been brought by a former employee, it has been brought by the union; secondly, the remedy sought is reinstatement, as was not the case in Newtown Timber and Hardware; thirdly, the question of whether or not reinstatement is possible cannot be determined until the question of whether or not there is a reasonable expectation of continuing employment beyond the term of the contract has been determined; fourthly, the question of remedy cannot be dealt with until after there has been a hearing and the parties have been given an opportunity to put their case; fifthly, the Act clearly makes provision for just such situation (ie where the position no longer exists), where it says that compensation may be ordered if reinstatement or re-employment are impracticable. [99] It would be premature to consider the question of remedy before the full case is heard. [100] I also think it premature, if even necessary, to consider the related submissions in respect of the case of Saarinen. The respondent argued that the employee has no accrued rights until such time as the decision is issued, apart from the right to a hearing, and that, therefore, by the time the decision is issued the position will no longer exist and the remedy of reinstatement will no longer exist. [101] Until the case is heard, the question of whether or not the position still exists is open. If it is found that it does still exist, and the dismissal is found to be unfair, then reinstatement or re-employment must be the first consideration. If reinstatement or re-employment is found to be impracticable (including for the reason that the position no longer exists) then compensation may be ordered. Section 30(11)(b) requires the Commission to take into account the remuneration that the employee would have received or would have been likely to receive had the employment not been terminated. If the position no longer exists and would have come to an end at a particular time, then that would be a relevant consideration in determining how much the employee would have been likely to receive. [102] I do not consider the possibility that the position may no longer exist at the time of the issuing of a decision to be an impediment to the hearing of the case and, should the dismissal be found to be unfair, the determining of a remedy. Appointments and promotions [103] The respondent referred to the cases of Saarinen and Seabrook Golf Club as authority for the proposition that appointment to a subsequent contract, when one expires, is an appointment. [104] The definition of "industrial matter" specifically excludes appointments or promotions. In Saarinen, the dispute was about the failure to renew a contract, or the failure to offer a contract. Imlach C ordered an award for compensation and, on appeal to the Supreme Court, that was overturned by Slicer J for reasons including the fact that the Commission is precluded from making appointments and promotions. On further appeal, the majority decision of the Full court adopted the view that the contract had reached its expiry date, citing, with approval, Fisher. As already discussed, in Fisher the Full Court of the Industrial Relations Court made very clear the desirability of properly addressing the question of whether or not there is a dismissal at the initiative of the employer and whether the employee held a reasonable expectation of continuing employment. [105] In the present case the contract had not expired at the time of the termination. That is a very significant difference. Even if it had expired, then the question of whether there was a reasonable expectation of continuing employment beyond that date has yet to be determined. It would only be in circumstances where it was found that there was no reasonable expectation of continuing employment after the end date of a contract that the Commission would be unable to order reinstatement or re-employment, after the contract had come to an end, for the reason that it would be a new appointment. [106] In the case of Seabrook Golf Club Imlach C did not address himself to the question of whether there was a reasonable expectation of continuing employment. The Commissioner cited Saarinen, saying that when a contract had expired, then the employee could not be reinstated, because, he said, that would be a new appointment. That case can be differentiated from the present case on the basis that in Seabrook Golf Club the contract had expired at the time of termination and the parties and the Commissioner concentrated almost solely on the question of performance and did not address the questions that are of relevance to the instant case. [107] I have found that there was a reasonable expectation of continuing employment until the end date of the contract. The next step is to hear the industrial dispute to determine whether or not there was a valid reason for the termination of employment. If there was not, then the question of how long the employment would have been likely to continue, including whether it was likely to continue beyond the end date in the contract, becomes relevant in terms of determining remedy. [108] Whilst I agree that it is necessary that the Commission's jurisdiction be established, I am not satisfied that any or all of the issues raised during this hearing are threshold matters which can and should be separated from a full hearing of the claim. I note, however, that despite the union's submissions, the parties did agree that the matter should proceed in the manner sought by the respondent. Many of the questions raised can only be answered through a full consideration of the facts and circumstances as adduced through the evidence. [109] Some of the points raised by the respondent may have been valid had the contract reached its end date at the time of the dismissal, but, it had not. [110] Whilst the parties are able to present their cases in the way they think fit, I think the present case demonstrates that putting forward a large number of preliminary issues is an unnecessarily costly and lengthy way of proceeding with a dispute which is clearly an industrial matter relating to an alleged unfair dismissal. [111] The case will now proceed to hearing and the parties will be notified of the hearing date.
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