T12182
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Australian Mines and Metals Association (Incorporated) and The Australian Workers' Union, Tasmania Branch
Appeal against a decision handed down by Commissioner Tim Abey arising out of T11961 of 2005 REASONS FOR DECISION [1] In a decision issued 18 July 2005, in Matter T11961 of 2005, Commissioner Abey found that the application by the Australian Workers Union (AWU) to insert a new provision in the Metalliferous Mining and Processing Award (the award) was within jurisdiction. The application sought to introduce a clause in respect to Portable Long Service Leave which the AWU explained "....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."1 [2] The Commissioner's decision dealt only with the question of jurisdiction. [3] That decision has been appealed by Australian Mines and Metals Association Inc (AMMA) on the following grounds: "The learned Commissioner made errors of law as follows:
The learned Commissioner acted on a wrong principle as follows:
[4] In its grounds of appeal AMMA says that the Commission is limited to long service disputes only and not entitlements, and that the Commission has never previously exercised jurisdiction in regard to long service leave entitlements. [5] AMMA submitted that the Commissioner erred by adopting a broad approach to the definition of industrial matter, that he had failed to recognize that the jurisdiction of this Commission was confined to disputes about long service leave only and that he misunderstood the purpose of s.42 of the Industrial Relations Act 1984 (the Act). [6] The appellant has dealt with all grounds of appeal together other than the reference to s.42 of the Act. [7] Accordingly we consider the grounds of appeal together other than in respect to s.42 of the Act. [8] The Australian Workers Union (AWU) submitted that we should consider the appeal by reference to the decision of the High Court in House v The King [55 CLR 499] which sets out the principles to consider on an appeal against an exercise of discretion. [9] A decision determining jurisdiction is a matter of fact and not an exercise of discretion. The decision of the Commissioner was not an exercise of discretion so the decision in House v King is not relevant to our considerations. [10] We deal with s.42 of the Act which provides:
[11] In respect to s.42 the Commissioner said at paragraph 9 of his decision:
[12] We agree with the Commissioner's comments. Until such time as an award provision exists s.42 has no relevance and cannot be applied. Mr Fitzgerald for AMMA almost conceded as much when he submitted "The issue of s.42, ... I can see that that is more likely to come in to play when - if and when Commissioner Abey proceeds to make a provision."2 [13] Further Mr Fitzgerald submitted that if the claim by the AWU was successful it would turn a contingent liability into an actual liability with the requirement to make payment into a fund. It would be that change in circumstance which would be contrary to s.42. That issue cannot be addressed until the merit of the claim is determined. [14] We reject those appeal grounds which relate to s.42 of the Act being of the view that until the merit of the claim is determined s.42 cannot be considered. [15] It seems to us that the appropriate time for the lodging any appeal would have been once the Commissioner had dealt with and determined all aspects of the merit, or otherwise, of the AWU claim. [16] The other grounds of appeal could be summarized into two categories, the first being that long service leave is not an industrial matter and secondly that the Act contains an ambiguity in respect to jurisdiction and as such the intention of the parliament when amending the Act is relevant. [17] The Tasmanian Chamber of Commerce and Industry (TCCI) supported the submissions of the AMMA arguing that an ambiguity existed inasmuch as the wording of the prescription in the Act speaks of a dispute about long service leave rather than a general reference to long service leave. [18] The application before the Commissioner below was a dispute notification in respect to long service leave which sought relief in the form of an award variation. [19] In considering the appeal grounds in respect to whether the application meets the test of being an industrial matter AMMA submitted that the subject matter of the application was not an industrial matter as defined by the Act. [20] The Act prescribes at s.3:
(a) that has arisen; or (b) that is likely to arise or is threatened or impending; industrial matter means any matter pertaining to the relations of employers and employees and, without limiting the generality of the foregoing, includes - (a) a matter relating to - (i) the mode, terms and conditions of employment; or
(b) a breach of an award or a registered agreement." [21] Long service leave is also a matter pertaining to the relations of employers and employees and is specifically identified in the definition of industrial matter. [22] The TCCI referred to the reading in the parliament of the variations to the Act which introduced jurisdiction for the Commission to deal with disputes in respect to LSL. It was submitted that the legislation only intended that individuals would be able to pursue a complaint and not that a representative union would be able to pursue a general claim affecting all members. [23] Whilst the Hansard was not provided to us the wording of the Act appears to us to be unambiguous. Exhibit TCCI 2 before the Commissioner is an extract from the report of the Legislative Council Select Committee (Select Committee) , re Industrial Relations which recommended, at Chapter 2, that "a dispute relating to Long Service Leave and consequential entitlements be considered as a industrial matter." Further it said "The Committee agrees that a dispute relating to Long Service Leave and consequent entitlements be considered as an industrial matter. The majority of evidence supported this amendment." [24] Whilst we have found that no ambiguity exists and we do not need to rely on extrinsic material nevertheless it seems to us that the provision in the Act reflects the recommendation of the Select Committee. [25] The provision in respect to disputes relating to long service leave entitlements is found under the definition of industrial matter, had parliament intended otherwise it would not be so found. Further s.3(a)(vi) provides that a dispute about long service leave entitlements is a dispute under the LSL Act or the Long Service Leave (State Employees) Act 1994. [26] Any entitlement to long service to which s.3(a)(vi) refers is the entitlement prescribed in either the LSL Act or the Long Service Leave (State Employees) Act 1994. [27] In our view there exists no ambiguity, and we reject the grounds of appeal which suggest an ambiguity exists. [28] The following definition of an industrial dispute is found in the Long Service Leave Act 1976:
[29] We agree with the submission of AMMA that the issue of jurisdiction is a fundamental issue. However whether the proposed award variation satisfies the jurisdictional requirements of the Commission is yet to be determined by the Commissioner. [30] However we reject the claim that long service leave is not an industrial matter and that the Commission has no jurisdiction to deal with a dispute about employee entitlement to long service leave. [31] The Commission regularly hears and determines disputes about long service leave entitlements, the entitlements in dispute are those prescribed in the LSL Act. Further the Commission has been dealing with such disputes over long service leave entitlements since the Act was varied in 2001. [32] It is our view that the lodging of the appeal prior to the Commissioner determining the application is premature and that Commissioner Abey should hear the matter to finalization. [33] Accordingly we find that long service leave is an industrial matter and refer the matter back to Commissioner Abey to hear and determine the application in its entirety.
P L Leary Appearances: Date and place of hearing: 1 Decision T11961 of 2005 para 4
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