NOTE: Matter under appeal by JK Peddell and SE Peddell trading as Bing I Oysters - Matter T13901 of 2012

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29(1A) application for a hearing

Brendon Nowak
(T13833 of 2011)
and
J K Peddell & S E Peddell
trading as Bing I Oysters(ABN 29250221613)

COMMISSIONER JP MCALPINE 
HOBART, 11 April 2012

Industrial dispute – breach of award – threshold matter – jurisdiction – proceed to hearing

REASONS FOR DECISION

[1] On 14 September 2011 Brendon Novak (the applicant) applied to the President, pursuant to Sections 29(1A)(c) and (d) of the Industrial Relations Act 1984 (the Act), for a hearing before a Commissioner in respect of an industrial dispute with JK Peddell and SE Peddell trading as Bing-I-Oysters (the respondent) arising out of an alleged breach of award and alleged non-payment of entitlement to long service leave.

[2] Ms L Brooks of Gunson Williams Barristers and Solicitors represented the applicant. Mr A Cameron of James O’Neill and Associates represented the respondent.

[3] A conciliation conference commenced 19 October 2011 at which Mr Cameron contested the Commission’s jurisdiction to hear that part of the matter pertaining to s29(1A)(c), breach of award. The Commission accepted Mr Cameron’s contention as a threshold issue to be dealt with before commencing to hear the substantive matters.

[4] Mr Cameron argued that as at the introduction of the Industrial Relations (Commonwealth Powers Act 2009) (CPA) on 1 January 2010 the Commission lacks the jurisdiction to hear any matter other than those excluded subject matters as defined in s30K(1) of the Fair Work Act 2009 (FWA) . Further, he argued that the instant application was lodged after the transfer of power and that both the applicant and respondent were national system employee and employer as defined in ss13 and 14 and expanded upon in ss30M and N  of the FWA at the time of the application. He argued that the FWA, under the transitional provisions, can address any matter including matters relevant to a State award as well as modern award matters.

[5] He referred to the second reading speech of the State Bill made when the State ceded the necessary heads of power to the Commonwealth, enabling all of the private sector to fall within the Commonwealth’s jurisdiction . He said importantly, the intent was to create a single private sector industrial relations system.  He asserted s26 of the FWA applies to the exclusion of State industrial laws. At s26(1) it states:

“26 Act excludes State or Territory industrial laws
(1) This Act is intended to apply to the exclusion of all State or Territory industrial laws so far as they would otherwise apply in relation to a national system employee or a national system employer.”

[6] He argued that the FWA overrode the Act from 1 January 2010 and therefor no application can be made by either party to this Commission from that date. He further argued that neither party had standing before this Commission from that date onwards.

[7] He referred to s109 of the Constitution in so far as the Commonwealth law takes precedent over a State Law 

“… Where a State law or where a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail and the former shall, to the extent of this inconsistency, be invalid - “

[8] He said the FWA, on the date of the application, had provision for recovery of underpayment of wages. He argued that under s323 of the FWA the applicant has the entitlement to payment he had earned and that under s341(1) of the FWA he has a workplace right to pursue action in the Federal sphere. He said s562 and s566 of the FWA direct the applicant to the Federal Magistrates Court for resolution of this matter.

[9] He introduced a letter from the Fair Work Ombudsman dated 19 August 2011  in response to the applicant making a complaint to that entity. Although not specified in the letter I assume the complaint would cover the instant matter. He said that should the applicant or the Fair Work Ombudsman initiate proceedings to recover wages under the FWA the claim is limited to 6 years under s544 of the FWA.

[10] He argued should a matter have already been lodged in another jurisdiction, this Commission’s practice has been to defer such a matter until it had run its course in that jurisdiction.

[11] Mr Cameron also asserted that the applicant’s claim for outstanding annual leave only became on foot when he ceased working for the employer and as such any claim would be under the Federal jurisdiction.

[12] He also drew the Commission’s attention to its own web page which states:

“ … private sector awards and agreements were referred  to the Commonwealth from 1 January 2010. Private sector employees and employers that were covered by the Tasmanian industrial relations system …… at that date transferred into the national workplace relations system.”

[13] Ms Brooks provided an email from the office of the Fair Work Ombudsman dated 2 March 2012  which states:

“…… with respect to the employment of Brendon Nowak, the FWO only has jurisdiction from 1 January 2010. Entitlements arising before this cannot be assessed by the FWO.” 

[14] Ms Brooks asserted that during the time of the alleged breach of award until 31 December 2009 the applicant’s conditions of employment were governed by the Shellfish Industry Award (the Award) in the State jurisdiction. Also, that the employer was a family partnership under State legislation. For the transition to the FWA jurisdiction the State was a Division 2B referring State  under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (FWTA). Mr Cameron made the same assertion during his discourse. 

[15] In her written submission dated 5 March 2012, Ms Brooks cited the FWTA  which states at Schedule 3A, s3(1):

“…a Division 2B State award is taken to come into operation immediately after the Division 2B referral commencement.”

the commencement being, 1 January 2010.

[16]  She also drew the Commission’s attention to s7 of Schedule 3A of the FWTA  which at (1) states:

“(1) If the source award for a Division 2B State award includes a term that provides for disputes related to matters arising under the award to be settled by;
(a) a State industrial body; or
(b) a person who is independent of the employers, employees or organisations covered by the source award;

the division 2B State award is taken not to include the term.” 

[17] She argued that the Award at Part VII in clause 3 includes the terms for resolution of disputes:

“Any industrial dispute arising shall be dealt with as follows:-

(c) if not settled, the matter shall be determined by the Tasmanian Industrial Commission whose decision will be final;”

[18] It follows, she said, that under s7(1) of schedule 3A of the FWTA, the term is not included in the Division 2B State award. Further at s7(3) of schedule 3A it states:

“The model term does not apply to disputes about matters arising under the source award before the Division 2B referral commenced.”

[19] The model term referred to is set out in Part 3A.02 of the Fair Work Transitional Provisions and Consequential Amendment Regulations .

OUTCOME

[20] I turn to the issue of an applicant taking advantage of multiple jurisdictions. There is no hard and fast rule which precludes such actions. Conventionally the discretion of the Commission is relied upon to either progress the matter or defer to the other jurisdiction. In the instant matter there is no need for the Commission to exercise its discretion given the Fair Work Ombudsman has conceded he only has jurisdiction with respect to the applicant’s employment from 1 January 2010  . Now this is where the threshold matter should end, however I will address the arguments raised at the hearing.

[21] I agree with Mr Cameron that the intent, as shown in the second reading speech before the Tasmanian Parliament, is to have a single private sector industrial relations system. However there has been nothing presented which suggests that the transition from State to Commonwealth would occur in an instant erasing all previous arrangements. Indeed the fact that there have been transitional arrangements acknowledges the practicality of phasing in a change-over.

[22] I turn to Mr Cameron’s assertion that this Commission cannot hear the instant matter because the FWA prevails before 1 January 2010 and has jurisdiction over State matters prior to that date.

[23] Ms Brooks showed in her argument that the original Award was, at the time of transition, a Division 2B State award, under the FWTA. This award came into operation on 1 January 2010 as prescribed in Schedule 3A, s3(1) of the FWTA. She also showed that the original Award had facility for dispute resolution which precluded the Division 2B State award from including such in its terms, as prescribed in s7 of the same schedule. Further she showed that this aspect of the model award did not apply to disputes arising prior to the commencement of the referral, as prescribed in s7(1) of Schedule 3A. As I will expand upon below, award breaches occur at the instant of the event, not when a dispute is notified.

[24] It is clear the dispute resolution provision remains for matters such as the instant matter to be heard by this Commission under the State Award as it was prior to 1 January 2010. This view is supported by the Fair Work Ombudsman’s view as expressed in exhibit A1.

[25] It follows that contrary to Mr Cameron’s argument both the employee and the employer do have standing before this Commission for matters prior to 1 January 2010.

[26] I turn to Mr Cameron’s argument that as the application was lodged after 1 January 2010 the FWA prevails and the matter falls into that jurisdiction. I disagree. In the first instance the transitional arrangements as prescribed in Schedule 3 of the FWTA cater for the continuation of the currency of the original State awards by providing for aspects such as dispute resolution not to be included in the Division 2B State award. Further, as alluded to above, with respect to wages and time off in lieu (TOIL) for time worked these reimbursements fall due to the employee once the hours have been worked. It follows that the award breach occurred at that time, as such wages or TOIL earned and not reimbursed prior to 1 January 2010 are recoverable within the jurisdiction of this Commission.

[27] Under the State Award for matters of alleged award breaches the Limitation Act 1974 does not apply allowing for an applicant to seek a hearing at any time after the alleged breach. Deputy President Abey in his decision T13749 of 2010 addresses the issue of limitation. The matter dealt with by the Deputy President relied on a judgment of the Supreme Court in the matter Blue Ribbon Products Pty Ltd v Tasmanian Industrial Commission which deemed the Tasmanian Industrial Commission not to be a court. In T13749 the Deputy President found that the application before him was not an “action” contemplated by s4(1) of the Limitation Act 1974 and consequently the said act did not apply.

[28] I turn now to the issue of outstanding annual leave payment. As with wages and TOIL being payable when they are worked, annual leave becomes payable when it is taken or in the case of termination of employment, at the time of termination. The pay rate applicable is that which is current at the time. The applicant terminated his employment on 26 February 2011. It follows that any annual leave payment would fall due at that time. Consequently the alleged breach would have taken place when the applicant and the respondent were subject to the FWA, therefor beyond the reach of this Commission’s jurisdiction.

[29] Mr Cameron, in my view, has failed to show that this Commission does not have the jurisdiction to hear matters pertaining to award breaches which occurred prior to 1 January 2010. I see no impediment to this Commission hearing the application with respect to alleged underpayment of wages and alleged non-payment of TOIL. The matter will proceed to hearing.

 

J P McAlpine
Commissioner

Appearances:
Ms L Brooks for the applicant
Mr A Cameron for the respondent

Date and Place of Hearing:
2012
March 5
Hobart