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Tasmanian Industrial Commission

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T13012

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of industrial dispute

Angela Clarke
(T13012 of 2007)

and

D. & S. Investments Pty. Ltd.
for the Pickett Family Trust trading as Bakers Dozen

 

COMMISSIONER JP McALPINE

HOBART, 10 October 2007

Industrial dispute - termination of employment - application amended - threshold matter - jurisdiction - constitutional corporation - application dismissed

REASONS FOR DECISION

[1] On 7 September 2007, Angela Clarke (the applicant) 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 D. & S. Investments Pty. Ltd. for the Pickett Family Trust trading as Bakers Dozen (as amended)(the respondent) arising out of a dispute in relation to termination of employment.

[2] This matter was listed for hearing at The Court House, 19 King Edward Street, Ulverstone, Tasmania on 20 September 2007 at 3.00 pm. Mr B Trafford, Trafford Legal Barristers and Solicitors, sought and was granted leave to appear on behalf the applicant. Mr S Cornish, Tasmanian Chamber of Commerce and Industry Limited, appeared for and on behalf of the respondent.

[3] The applicant had been employed by the respondent, from 9 March 2007 to 13 August 2007 as a casual sales assistant. The applicant's employment was allegedly terminated because her performance was purported to be unsatisfactory. She stated in her application that she had never been given any warning or notice about her performance nor subsequently received any details of the allegations. The applicant's employment was allegedly terminated while she was off work recovering from a workplace injury.

[4] The validity of her employment status of "casual" was not tested.

[5] The applicant sought relief from the Commission in regard to her alleged unfair dismissal either by reinstatement to her former position or reasonable compensation.

[6] At the outset of the proceedings, Mr Cornish raised a threshold issue with respect to the jurisdiction within which this matter lay.

[7] The progress of the matter hinged on this Commission's jurisdiction, or lack of, to arbitrate.

[8] Mr Cornish informed the Commission that the respondent was a constitutional corporation and, as such, fell under the jurisdiction of the Australian Workplace Relations Act 1996. He tendered a copy of the legal structure of the company certified by KPMG1.

[9] Mr Cornish stated that the business operated under a Notional Agreement Preserving a State Award, a Federal instrument.

[10] With regard to the issue of the industrial implications of a constitutional corporation acting as a trustee for a trading trust, Mr Cornish cited the authority of Wendy Jane Morgan re Wendy Jane Morgan v Kittockside Nominees Pty Ltd - PR918793 [2002] AIRC 561. He asserted that in this case, the Full Bench held that the trustee is an employer in its capacity as trustee for the family trust and, if the trustee is a corporate body and the trust is a trading trust then the entity is a constitutional corporation. He asserted the instant matter falls to the same logic.

[11] Mr Trafford stated that the applicant had received a Separation Certificate from the respondent in which the business name was stated as "Bakers Delight". He argued that had the applicant been made aware of the correct business name she may well have had the opportunity to lodged proceedings in the appropriate jurisdiction.

[12] The opportunity given to Mr Cornish to participate in a conciliation conference was declined.

FINDINGS

[13] A search of the Australian Securities and Investment Commission's records shows D. & S. Investments Pty. Ltd. to be a proprietary company, limited by shares. I accept Exhibit R1 as an accurate depiction of the company structure.

The Commonwealth Constitution states at s.51:

"The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: -

(xx.) Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth:"

[14] The evidence shows, and the cited authorities support the conclusion, that the respondent is a constitutional corporation, and I so find.

[15] As a consequence of this decision, s.109 of the Constitution must apply with respect to the entity being subject to the Australian Workplace Relations Act 1996 over the Tasmanian Industrial Relations Act 1984.

[16] I therefore dismiss the matter of alleged unfair dismissal for want of jurisdiction, and I so Order.

 

James P McAlpine
COMMISSIONER

Appearances:
Mr B Trafford, Trafford Legal (Barristers and Solicitors), for the applicant
Mr S Cornish, Tasmanian Chamber of Commerce and Industry Limited, for D&S Investments Pty Limited trustee of Picket Family Trust trading as Bakers Dozen.

Date and Place of Hearing:
2007
September 20
HOBART

1 Exhibit R1