T11961
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Australian Workers' Union, Tasmania Branch METALLIFEROUS MINING AND PROCESSING AWARD
Award variation - portable long service leave - monthly contributions into external fund administered by a trustee - industrial matter - jurisdiction found - validity of award variation REASONS FOR DECISION [1] On 22 February 2005, an application was lodged by The Australian Workers' Union, Tasmania Branch, pursuant to Section 23 of the Industrial Relations Act 1984, to vary the Metalliferous Mining and Processing Award. [2] When this matter came on for hearing on 15 March 2005 and 1 June 2005, Mr R Flanagan, and Mr K Midson (1/6/05), appeared for the AWU, Mr W Fitzgerald, appeared for the Australian Mines and Metals Association (Incorporated) (AMMA), and Mr M Watson (1/6/05) appeared for the Tasmanian Chamber of Commerce and Industry Limited (TCCI). [3] The AWU seeks to insert the following new clause into the award:
[4] Mr Flanagan explained that this proposed award variation was targeted at contractors who engaged labour to perform mining operations on mine sites in circumstances whereby the employer was not the owner of the site at which the employee was engaged to work. [5] Mr Flanagan said that such employers would be required on a monthly basis to make contributions into a fund known as Tasbuild. When an employee had accumulated sufficient service in the industry, albeit with more than one employer, an entitlement to long service leave would arise, and payment for same would be made by the fund, not the entity which happened to be the employer at the time the entitlement arose. Mr Flanagan said that the proposed arrangement was similar to that which had applied for many years in the building and construction industry. [6] It must be stated that the hearing to which this decision relates dealt only with jurisdictional arguments. The merits of the application were not in any way canvassed. [7] AMMA, supported by TCCI, submitted that the Commission lacks jurisdiction to entertain the application. [8] The employers contend that the subject matter of the proposed award variation, is not an industrial matter within the meaning of the Act. Further, the employers submit that the application would be disallowed by s.42 of the Act, which reads:
[9] In my view a distinction must be drawn between jurisdiction to consider a subject matter, and the validity of any award provision subsequently made. It is in this latter context that s.42 becomes relevant, rather than in the broader question of jurisdiction to consider the subject matter of an application. In other words it is possible for the Commission to have jurisdiction to deal with a certain subject matter. Whether or not any award made is valid is a quite separate consideration, which involves s.42 of the Act. [10] Jurisdiction for the inclusion of a matter in an award is found in s.32 of the Act. This is an exhaustive provision and it is unnecessary to go to s.42 on the question of jurisdiction. Section 32(1) reads:
[11] In Section 3 industrial matter is defined as follows:
[12] Prior to 1984 disputes arising out of relevant long service leave statutes were determined by the Secretary for Labour. [13] In 1984 the Long Service Leave Act 1976 was amended1 to refer disputes relating to entitlements and computation of ordinary pay to the Industrial Commission. Such disputes could only be referred by the Secretary. [14] Prior to 2000 the definition of industrial matter specifically excluded:
[15] In summary, for the period 1984 to 2000 there was a general prohibition on the Commission dealing with long service leave matters, other than certain disputes which had been referred by the Secretary. [16] By virtue of the Industrial Relations Amendment Act 20002 a specific reference to certain disputes arising from the long service leave statutes was included in the definition of industrial matter (see para 11 above). At the same time the previous blanket prohibition on long service leave matters [(d) above], was deleted. [17] Both Mr Fitzgerald and Mr Watson submitted that the clear intention of the Government was to enable individuals and organizations to bring long service leave disputes to the Commission directly, and not rely on a reference from the Secretary. Certain extrinsic material relevant to the parliamentary debate at the time was tabled in support of this contention.3 [18] Mr Fitzgerald submitted that a fundamental legal principle is that the specific overrides the general and the Commission's jurisdiction must be read down in specific terms to a dispute only in regard to long service leave. [19] Mr Flanagan submitted that the words, "any matter pertaining to the relations of employers and employees ..." conferred a very broad jurisdiction on the Commission. With the removal of the previous proscription in 2000, matters pertaining to long service leave fell comfortably within jurisdiction. [20] Mr Flanagan submitted that the proper approach is to give the words in the statute their clear and ordinary meaning. It is only where the words are vague or ambiguous that it is appropriate to go to extrinsic material. I agree with this submission. It is consistent with s.8B of the Acts Interpretation Act 1931. [21] Mr Flanagan relied upon the Manufacturing Grocers' case4 in which the High Court considered the words above in the context of whether a claim for superannuation contributions to be made by an employer into an external fund administered by a trustee, was an industrial matter within the meaning of the Commonwealth Act. [22] In a joint judgement the Court said:5
[23] The Full Court went on to conclude:6
[24] Mr Flanagan contended that Manufacturing Grocers' was analogous to the instant matter in that it involved payment by an employer of contributions into an external fund administered by a trustee. [25] In a supplementary submission Mr Flanagan referred to Saunders v Park Homes Pty Ltd,7 in which Gray J said:
[26] This, Mr Flanagan said, supported his contention that the specific reference to long service leave disputes in the definition of industrial matter has the effect of extending the ordinary meaning of the term "any matter pertaining to the relations of employers and employees". [27] Mr Fitzgerald on the other hand relied on the words:
as support for his contention that the specific overrides the general. [28] There may well be circumstances where the "implied exclusion" referred to above would apply, although Park Homes is not particularly helpful in providing guidance as to such circumstances. Clearly it is not a rule to be slavishly applied. To do so, for example, would, in the Tasmanian context, invite a conclusion that the Commission has jurisdiction to deal with a severance pay dispute, but not an award provision dealing with severance pay or redundancy. [29] I note that in Park Homes, Gray J concluded:
[30] I do not consider that the definition of industrial matter is vague or ambiguous. It is therefore unnecessary to rely on the extrinsic material referred to by the employer representatives. [31] The words "pertaining to the relations of employees and employers" (or very similar), are common to both the State and Commonwealth Acts. [32] Long service leave has long been a feature of many federal awards. On any reasonable assessment, long service leave is a "front and centre" core condition of employment, similar in character to that of annual leave. [33] Prior to 2000 there was a specific proscription on long service leave being considered as an industrial matter. That specific proscription was removed in its entirety by the 2000 amendments. Had Parliament intended to limit the jurisdiction to dispute matters alone, it would not have been difficult to draft an appropriate amendment. [34] I conclude therefore that the Commission does have jurisdiction to consider and determine the application lodged by the AWU. [35] I turn now to Section 42 of the Act. [36] The employers contend that the proposed award variation is inconsistent with the Long Service Leave Act 1976 in that it imposes on employers an obligation to make monthly contributions into a fund, whereas under the Act, an obligation to make payment only arises when an entitlement crystallizes. [37] The AWU submitted that, as the benefit conferred on the employee arises from the operation of the fund (Manufacturing Grocers' case), there is no conflict between the proposed variation to the award and any other Act of Parliament. The award obligation is to pay a contribution into the fund. [38] Mr Flanagan also referred to s.7 of the LSL Act whereby there is capacity for the Secretary to exempt an employer from the operation of the Act in circumstances whereby an alternative scheme is in place, which provides benefits "not less favourable to those employees ...". This, Mr Flanagan said, was clear evidence that the LSL Act was not an exclusive code and recognised that other schemes may operate. [39] In answering this question it is necessary to look at the character of the Long Service Leave Act 1976. [40] Section 8A of the Acts Interpretation Act reads:
[41] The Preamble to the LSL Act reads:
[42] Plainly this Act must be viewed as beneficial legislation aimed at granting long service leave entitlements to employees. [43] Throughout the Act there are consistent references to "an entitlement to long service leave" (or similar) on the part of employees. In the instant case Section 8A is particularly relevant. It reads in part:
[44] The scheme of this statute may be contrasted with an Act conferring legal rights or remedies on employers. The 1976 Act is noticeably devoid of such provisions. [45] Is s.42 to be read in such a manner so as to effectively preclude any reference to a long service leave provision in an award? Given the earlier finding on jurisdiction, I think not. [46] Certainly an award prescription conferring an inferior benefit would be inconsistent with the Act and hence invalid. [47] The Commission is not asked to rule on whether an award could contain a long service leave prescription which is superior to the Act. [48] Reference in s.42 to the "same subject matter" must reasonably be read to mean the same "specific" subject matter rather than long service leave in the broader generic sense. [49] The effect of the instant application would be to impose on employers an obligation to make monthly contributions into a fund. There is no similar prescription in the Act and to that extent the Act and the award are not dealing with the same subject matter. [50] Section 12 of the LSL Act is headed "How and when long service leave shall be taken". Subsection (6) reads:
[51] Subclause (d) of the proposed award variation reads:
[52] In my view the proposed award variation certainly imposes an additional obligation on employers, but such obligation is not inconsistent with the Act. If the application was granted the Act would continue to operate in every aspect. [53] Had the Act been expressed in terms of, say:
the award would be inconsistent and hence invalid. But it does not say that. [54] On its face I detect nothing in the application which would render it invalid by virtue of s.42 of the Industrial Relations Act. [55] I would also observe that, pursuant to s.20(3), the Commission is not restricted to the specific claim or the subject matter of the claim. Even if an application might appear to run counter to s.42 (which I have not found in the instant case), that in itself should not be a barrier to the prosecution of a merit argument. That process may well find an outcome which is not rendered invalid by virtue of Section 42. [56] I emphasise again that this decision deals solely with the jurisdictional question. No consideration has been given to the merits of the application.
Tim Abey Appearances: Date and Place of Hearing: 1 No. 20 of 1984
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