T12672
|
TASMANIAN INDUSTRIAL COMMISSION Decision Under Appeal Industrial Relations Act 1984 Douglas Joseph Peter Massey and Sphere Pty Ltd trading as Barron's Char Grill
Industrial dispute - termination of employment - threshold issue - jurisdiction found - matter to be relisted REASONS FOR DECISION [1] On 12 May 2006, Douglas Joseph Peter Massey (the applicant), applied to the President, pursuant to s.29(1A) of the Industrial Relations Act 1984 (Tasmanian Act), for a hearing before a Commissioner in respect of a dispute with Sphere Pty Ltd trading as Barron's Char Grill (the respondent) arising out of his alleged unfair termination of employment. [2] The matter was listed for hearing at 3.15 pm on Thursday, 25 May 2006 at the Magistrates Court, 19 King Edward Street, Ulverstone, Tasmania. [3] The applicant was employed by the respondent, from February 2006 until 22 April 2006, as a kitchen hand. In his application the applicant stated he was engaged as a casual/part-time employee. The applicant's employment status was not tested. The applicant was employed under the State Restaurant Keepers Award. [4] Mr Cornish, of the Tasmanian Chamber of Commerce and Industry Limited, for the respondent, informed the Commission that the Restaurant Keepers Award, for this employer, was transmitted into a Notional Agreement Preserving State Award (NAPSA) pursuant to Schedule 8, Part 3 of the Workplace Relations Act 1996 (as amended) (Commonwealth Act). The alleged termination of employment took place after the enactment of the WorkChoices amendments on 27 March 2006. [5] At the outset of the hearing, Mr Cornish raised a threshold issue with respect to this Commission's jurisdiction over the instant matter. He stated the respondent was a Constitutional Corporation and, as such, the instant industrial matters fell within the jurisdiction of the Commonwealth Act. [6] The Commission chose to deal with the threshold issue in the first instance. BACKGROUND [7] The applicant was unrepresented at the hearing and did not contribute to the ensuing debate. [8] In a written submission Mr Cornish argued a number of points. [9] In the first instance, Mr Cornish argued the respondent was a Constitutional Corporation and, as such, the Commonwealth Act applied. He sought to demonstrate the respondent was indeed a Constitutional Corporation by dint of it's registration as an Australian Proprietary Company, limited by shares and the fact that it's main function was to trade. [10] Mr Cornish cited placitum 51(xx) of the Commonwealth Constitution:
[11] Mr Cornish argued the Tasmanian Act was inconsistent with the Commonwealth Act, and as such the Commonwealth Act prevailed. He further cited s.109 of the Commonwealth Constitution:
FINDINGS [12] It is evident from the second reading speech in the Upper House of the Tasmanian Parliament that the intention of the introduction of the amendment to s.30(A) of the Tasmanian Act was to offer a means of redress to those employees, employed by constitutional corporations, who would lose the means of relief for alleged unfair dismissal as a consequence of the then intended introduction of the WorkChoices amendments of March 2006 to the Commonwealth Act. [13] As a result of a decision handed down by Abey C in T9604 of 2001 Joshua John Strudwick v Irish Murphy's Pty Ltd ACN 004 897 198, known as the Irish Murphy's Case, the Tasmanian Parliament sought to amend the Tasmanian Act to cover employees who alleged unfair dismissal from a Constitutional Corporation.
[14] The resulting legislation reads at s.30(A):
[15] It should be noted that in the WorkChoices amendments to the Commonwealth Act the relevant section on Termination of Employment has changed from Division 3 of Part IVA, subdivision A, to Part 12 Division 4. There are also changes made to the content of the Commonwealth Act. [16] However, s.16 of the Commonwealth Act expressly excludes some State and Territory laws:
[17] In the instant matter the conditions under which the applicant was employed, were subject to a NAPSA. The status of a NAPSA has not been defined beyond it being a transitional device. I have taken it to be an instrument of the Commonwealth Act. [18] I accept the respondent is a Constitutional Corporation, to which s.16 of the Commonwealth Act applies. Section 16 specifically excludes State industrial law, which, arguably would render s.30(A) of the Tasmanian Act inconsistent with the Commonwealth Act. The constitution is clear in s.109, that the Commonwealth law will take precedent to the extent of any inconsistency. [19] The Commonwealth Act was passed in the House of Representatives on 10 November 2005. It was referred to the Senate on the same day and passed on 2 December 2005. [20] The Tasmanian Act was committed in the House of Assembly on 10 November 2005 and finally passed on 1 December 2005. [21] It is my view the Tasmanian Parliament, in full knowledge of the intent and structure of the then proposed Commonwealth Act and with the implications of s.109 of the Constitution, took the decision to avail those employees who would have no recourse in the proposed federal system, an avenue to progress claims for unfair dismissal. [22] The avenue offered to these employees is explicitly through the Tasmanian Industrial Commission, consequently the Tasmanian Industrial Commission does have jurisdiction in the instant matter, and I so find. [23] The case will now proceed to hearing and the parties will be notified of the hearing date in due course.
James P McAlpine Appearances: Date and place of hearing: 1 Hansard, Tuesday, 29 November 2005, (pages 33-78) [2.49 p.m.]
|