T12797
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Christopher Roderick Manuel Barnes and Eugene McCarthy Transport Pty Ltd
Industrial dispute - termination - severance pay - constitutional corporation - High Court challenge - application for adjournment - application dismissed REASONS FOR DECISION [1] On 18 September 2006, Christopher Roderick Manuel Barnes 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 Eugene McCarthy Transport Pty Ltd arising out of a dispute in relation to termination of employment and severance pay in respect of termination of employment as a result of redundancy. [2] This matter was set down for a hearing (conciliation conference) on 9 October 2006. Appearances: Mr M Grove, solicitor, Bishops, for and with the applicant. Mr C Arnott, of Ireland Consulting Services Pty Ltd, for the respondent employer. [3] Mr Arnott raised a preliminary submission contending that the respondent is a constitutional corporation. On the authority of Sphere Pty Ltd1 the Commission did not have jurisdiction to hear the matter. Accordingly the application should be dismissed. [4] Mr Grove did not contest Mr Arnott's submission going to the issue of constitutional corporation. Instead, he referred to the High Court challenge to the constitutional validity of the Work Choices legislation. In the circumstances Mr Grove contended that the appropriate course was to adjourn proceedings pending the outcome of the High Court challenge. [5] The timing and outcome of the future High Court decision is of course unknown. In the meantime there is a presumption that the legislation is valid until otherwise determined. It would be unfair on the respondent to have this matter "hanging" for an indefinite period when clearly, on the legislation as it currently stands, the Commission does not have jurisdiction. [6] In the event that the High Court subsequently determines that applications of this nature may be pursued, it would be open to Mr Barnes to lodge a fresh application. In this context I note Mr Grove's observations concerning an "exceptional circumstances" argument for an extension of time. [7] The application is dismissed. I so order. Tim Abey Appearances: Date and Place of Hearing:
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