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T12740 and T12759

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s70(1) appeal against decision

Sphere Pty Ltd
trading as Barron's Char Grill

(T12740 of 2006)
(T12759 of 2006)

and

Douglas Joseph Peter Massey

 

FULL BENCH:
PRESIDENT P L LEARY
DEPUTY PRESIDENT P C SHELLEY
COMMISSIONER T J ABEY

HOBART, 31 August 2006

Appeal against a decision handed down by Commissioner J P McAlpine arising out of T12672 of 2006 - Jurisdiction - Constitutional Corporation

DECISION OF PRESIDENT LEARY

[1] In a decision in Matter T12672 of 2006 Commissioner McAlpine found that:

"It is my view that 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.

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."

[2] An appeal against the decision of the Commissioner was lodged by the respondent to the original application, Sphere Pty Ltd trading as Barron's Char Grill (the appellant), by its agent the Tasmanian Chamber of Commerce and Industry Ltd (TCCI) [T12740 of 2006].

[3] At the time of the appeal being lodged no order had been issued by the Commissioner.

[4] The grounds of appeal are as follows:

1. The Commissioner erred in law in finding that the Tasmanian Industrial Commission has jurisdiction in that he failed to have regard to the objects of the Workplace Relations Act 1996 (Cth).

2. The Commissioner erred in law in that he failed to have regard to the Workplace Relations Act 1996 intention to `cover the field' with respect to industrial matters as they affect constitutional constitutions.

3. The Commissioner erred in law in that he failed to have regard to the effect of s.16 of the Workplace Relations Act 1996 with respect to State industrial law.

4. The Commissioner erred in law in that he failed to have regard to the effect of s.109 of the Commonwealth Constitution and the Workplace Relations Act 1996 together rendering s.30A of the Industrial Relations Act 1984 (Tas) invalid; and

5. The Commissioner erred in law in that he misapplied the rule of statutory interpretation as it applies to extrinsic aids to interpretation in construing s30A of the Industrial Relations Act 1984 (Tas).

Background:

[5] In the matter before the Commissioner, Douglas Joseph Peter Massey alleged that a dispute existed with his former employer, Sphere Pty Ltd trading as Barron's Char Grill, in respect to his termination of employment.

[6] The application did not make any claim in respect to severance pay, long service leave or an alleged breach of the award or registered agreement.

[7] Employment was governed by the terms of the State Restaurant Keepers Award, an award of the Tasmanian Industrial Commission (TIC).

[8] Mr Massey claimed that he was employed as a casual/part-time kitchen hand, that claim was not challenged. His employment commenced in February, 2006 and he was terminated by his employer on 22 April, 2006. There was an issue as to whether Mr Massey resigned or was terminated by the employer, however that issue was not relevant to the jurisdictional argument pursued by the employer and was not debated.

[9] The jurisdictional issue before the Commissioner was in respect to the impact of the WorkChoices amendments to the (WRA) which came into effect on 27 March, 2006. Any decision made is in respect to the law as it currently applies.

[10] By application of s.527, Part 10 of Division 3, - (Preserved award entitlements) - of the WRA, the Restaurant Keepers Award was transmitted into a Notional Agreement Preserving State Award (NAPSA) document and, in respect to constitutional corporations operating in Tasmania, became subject to the provisions of the WRA from 27 March, 2006.

[11] The appellant is a constitutional corporation and no argument was presented to challenge that position.

[12] The relevant section of the Industrial Relations Act 1984 (the Tasmanian Act) relied upon by the Commissioner is s.30A which prescribes:

"S.30A. Employees under federal award

A person-

(a) who is employed, or was employed, under a federal award but who is, or was, excluded from, or for any other reason does not have, or did not have at the relevant time, access to a remedy for termination of employment; or

(b) to whom the termination provisions contained in Division 3 of Part IVA of the Commonwealth Act do not, or did not at the relevant time, apply-

may apply to the Commission for the hearing of a dispute specified in section29(1A)(a) or (b)."

[13] Section 170CBA(1) of Division 3 of Part IVA of the pre reform WRA and referred to in s.30A of the Tasmanian Act, prescribed the following:

"170CBA(1) Exclusions from Subdivisions B, D, E and F and sections 179CL and 170CM

The following kinds of employee are excluded from the operation of Subdivisions B, D, E and F and sections 170CL and 170CM:

(a) an employee engaged under a contract of employment for a specified period of time;

(b) an employee engaged under a contract of employment for a specified task;

(c) an employee serving a period of probation, if the duration of the period or the maximum duration of the period, as the case may be, is determined in advance and, either:

(i) the period, or the maximum duration, is 3 months or less; or

(ii) the period, or the maximum duration;

(A) is more than 3 months; and

(B) is reasonable, having regard to the nature and circumstances of the employment;

(d) a casual employee engaged for a short period, within the meaning of subsection (3);

(e) a trainee whose employment under a traineeship agreement or an approved traineeship:

(i) is for a specified period; or

(ii) is, for any other reason, limited to the duration of the agreement;

(f) an employee:

(i) who is not employed under award conditions; and

(ii) to whom subsection (5) or (6) applies.

Note 1:

The expression employee engaged under a contract of employment for a specified period of time (used in paragraph (a) has been addressed in a number of cases before the Industrial Relations Court of Australia, including, in particular, Cooper v Darwin Rugby League Inc (1994) 57 IR 238, Andersen v Umbakumba Community Council (1994) 126 ALR 121, D'Lima v Board of Management, Princess Margaret Hospital for Children (1995-1996) 64 IR 19 and Fisher v Edith Cowan University (unreported judgment of Madgwick J, 12 November 1996, No. W1 1061 of 1996).

Note 2:

An employee who is excluded from the provisions of the Act specified in this subsection may still be eligible to apply for a remedy in relation to the termination of employment under a State law.

Note 3:

The definition in section 170CD apply for the purposes of this section."

[14] It is likely that prior to the WorkChoices amendments s.30A of the Tasmanian Act would have allowed Mr Massey to proceed with an alleged unfair dismissal application before the TIC.

The matter before the Commissioner:

[15] It was argued by the TCCI, as agent for the employer, that the TIC lacked the appropriate jurisdiction to hear and determine the application filed by Mr Massey. It was submitted that the Tasmanian Act was inconsistent with the WRA and as such the federal (WRA) legislation prevailed.

[16] TCCI provided comprehensive written submissions addressing the WRA, the Commonwealth Constitution, the test to apply to determine whether an organization is a constitutional corporation, termination of employment provisions of the WRA following the WorkChoices amendments, application of the Tasmanian Act and the employment instrument applying to Mr Massey.

[17] The Commissioner found that the employer was a constitutional corporation and accepted that s.109 of the Australian Constitution was clear in that federal law "will take precedent to the extent of any inconsistency."

[18] He found that:

"........... 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.

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."

[19] The above finding is challenged by the employer and is the basis of the appeal.

The appeal:

[20] The appeal was listed for hearing on 28 July, 2006, and the following parties were advised of the hearing:

The appellant;

Douglas Massey, the applicant in the original matter and respondent to the appeal;

TCCI;

Tasmanian Trades and Labor Council;

Minister for Justice and Workplace Relations.

[21] Only the TCCI, as agent for the appellant, appeared at the hearing.

[22] The other notified parties were given 21 days to provide any submissions in respect to the grounds of appeal. Submissions were to be received by close of business 18 August, 2006.

[23] The TCCI requested that the Commissioner issue an order in respect to the matter and on 11 August 2006 Commissioner McAlpine issued a further decision which stated:

"Pursuant to s.31 of the Industrial Relations Act 1984 the threshold issue of jurisdiction is dismissed, and I so order."

[24] The TCCI, as agent for the appellant, filed a further notice of appeal against the order issued on 11 August, 2006 [T12759 of 2006]. The grounds of appeal are identical to those filed in the first matter [T12740 of 2006].

[25] All notified parties were advised of the order being issued and given a further opportunity to provide submissions.

[26] No submissions were received from any of the other parties and the Commission relies on the submissions presented by the TCCI as agent for the appellant.

[27] For the purpose of dealing with the grounds of appeal the two matters, T12740 of 2006 and T12759 of 2006, are joined.

[28] The appeal grounds were dealt with together.

[29] It is claimed by the appellant that the Commissioner erred by failing to acknowledge the intention of the WorkChoices amendments to the WRA and the objects of the WRA. It is also claimed that the Commissioner failed to have regard to s.109 of the Commonwealth Constitution, which, together with the provisions of the WRA negate the application of s.30A of the Tasmanian Act. Further the Commissioner misapplied the rule of statutory interpretation as it applies to extrinsic aids. To consider the grounds of appeal it is necessary to look at the various legislature relied upon by the appellant.

[30] Section 16 of the WRA provides:

"S.16 Act excludes some State and Territory laws

(1) This Act is intended to apply to the exclusion of all the following laws of a State or Territory so far as they would otherwise apply in relation to an employee or employer:

(a) a State or Territory industrial law;

(b) a law that applies to employment generally and deals with leave other than long service leave;

(c) a law providing for a court or tribunal constituted by a law of the State or Territory to make an order in relation to equal remuneration for work of equal value (as defined in section 623);

(d) a law providing for the variation or setting aside of rights and obligations arising under a contract of employment, or another arrangement for employment, that a court or tribunal finds is unfair;

(e) a law that entitles a representative of a trade union to enter premises.

Note: Subsection 4(1) defines applies to employment generally."

[31] Section 16 of the WRA then refers to a number of State and Territory laws that are not excluded. It also details non excluded matters, and provides:

"State and Territory laws that are not excluded

(2) However, subsection(1) does not apply to a law of a State or Territory so far as:

(a) the law deals with the prevention of discrimination, the promotion of EEO or both, and is neither a State or Territory industrial law nor contained in such a law; or

(b) the law is prescribed by the regulations as a law to which subsection (1) does not apply; or

(c) the law deals with any of the matters (the non-excluded matters) described in subsection (3).

(3) The non-excluded matters are as follows:

(a) superannuation;

(b) workers compensation;

(c) occupational health and safety (including entry of a representative of a trade union to premises for a purpose connected with occupational health and safety);

(d) matters relating to outworkers (including entry of a representative of a trade union to premises for a purpose connected with outworkers);

(e) child labour;

(f) long service leave;

(g) the observance of a public holiday, except the rate of payment of an employee for the public holiday;

(h) the method of payment of wages or salaries;

(i) the frequency of payment of wages or salaries;

(j) deductions from wages or salaries;

(k) industrial action (within the ordinary meaning of the expression) affecting essential services;

(l) attendance for service on a jury;

(m) regulation of any of the following:

(i) associations of employees;

(ii) associations of employers;

(iii) members of associations of employees or of associations of employers.

Note: Part 15 (Right of entry) sets prerequisites for a trade union representative to enter certain premises under a right given by a prescribed law of a State or Territory. The prerequisites apply even though the law deals with such entry for a purpose connected with occupational health and safety and paragraph (2)(c) says this Act is not to apply to the exclusion of a law dealing with that.

This Act excludes prescribed State and Territory laws.

(4) This Act is intended to apply to the exclusion of a law of a State or Territory that is prescribed by the regulations for the purposes of this subsection.

(5) To avoid doubt, subsection (4) has effect even if the law is covered by subsection (2) (so that subsection (1) does not apply to the law). This section does not limit subsection (4).

Definition

(6) In this section:

this Act includes the registration and Accountability of organizations Schedule and regulations made under it."

[32] The definition of a State or Territory industrial law is found in s.4 of the WRA and means:

(a) any of the following State Acts:

(i) the Industrial Relations Act 1996 of New South Wales;

(ii) the Industrial Relations Act 1999 of Queensland;

(iii) the Industrial Relations Act 1979 of Western Australia;

(iv) the Fair Work Act 1994 of South Australia;

(v) the Industrial Relations Act 1984 of Tasmania; or

(b) an Act of a State or Territory that applies to employment generally and has one or more of the following as its main purpose or one or more of its main purposes:

(i) regulating workplace relations (including industrial matters, industrial disputes and industrial action, within the ordinary meaning of those expressions);

(ii) providing for the determination of terms and conditions of employment;

(iii) providing for the making and enforcement of agreements determining terms and conditions of employment;

(iv) providing for rights and remedies connected with the termination of employment;

(v) prohibiting conduct that relates to the fact that a person either is, or is not, a member of an industrial association (as defined in section 779); or

(c) an instrument made under an Act described in paragraph(a) or (b), so far as the instrument is of a legislative character; or

(d) a law that:

(i) is a law of a State or Territory; and

(ii) is prescribed by regulations for the purposes of this paragraph.

[33] The WRA names the Tasmanian Act as an excluded law, being a State industrial law. The Tasmanian Act does not survive the non excluded laws provisions of the WRA.

[34] The principal object of the WRA is found at s.3(3) and prescribes:

"3 Principal object

The principal object of this Act is to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia by:

(a) encouraging the pursuit of high employment, improved living standards, low inflation and international competitiveness through higher productivity and a flexible and fair labour market; and

(b) establishing and maintaining a simplified national system of workplace relations; and

(c) providing an economically sustainable safety net of minimum wages and conditions for those whose employment is regulated by this Act; and

(d) ensuring that, as far as possible, the primary responsibility for determining matters affecting the employment relationship rests with the employer and employees at the workplace or enterprise level; and

(e) enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances; and

(f) ensuring compliance with minimum standards, industrial instruments and bargaining processes by providing effective means for the investigation and enforcement of:

(i) employee entitlements; and

(ii) the rights and obligations of employers and employees, and their organisations; and

(g) ensuring that awards provide minimum safety net entitlements for award-reliant employees which are consistent with Australian Fair Pay Commission decisions and which avoid creating disincentives to bargain at the workplace level; and

(h) supporting harmonious and productive workplace relations by providing flexible mechanisms for the voluntary settlement of disputes; and

(i) balancing the right to take industrial action for the purposes of collective bargaining at the workplace level with the need to protect the public interest and appropriately deal with illegitimate and unprotected industrial action; and

(j) ensuring freedom of association, including the rights of employees and employers to join an organisation or association of their choice, or not to join an organisation or association; and

(k) protecting the competitive position of young people in the labour market, promoting youth employment, youth skills and community standards and assisting in reducing youth unemployment; and

(l) assisting employees to balance their work and family responsibilities effectively through the development of mutually beneficial work practices with employers; and

(m) respecting and valuing the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin; and

(n) assisting in giving effect to Australia's international obligations in relation to labour standards."

[35] Section 109 of the Commonwealth Constitution states:

"When the law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid."

[36] The applicant submitted that the WRA was intended to cover the field in respect to constitutional corporations and relied on the authority of the High Court decisions in McLean and Ansett.

[37] In the decision of the High Court in Ex Parte McLean (1930) 43 CLR 472 (McLean) it was held by Dixon J that:

"When the Parliament of the Commonwealth and the Parliament of a State each legislate upon the same subject and prescribe what the rule of conduct shall be, they make laws which are inconsistent, notwithstanding that the rule of conduct is identical which each prescribes, and s.109 applies. That this is so is settled, at least when the sanctions they impose are diverse (Hume v Palmer (1926) 38 CLR 441). But the reason is that by prescribing the rule to be observed, the Federal statute shows an intention to cover the subject matter and provide what the law upon it shall be. If it appeared that the Federal law was intended to be supplementary to or cumulative upon State law, then no inconsistency would be exhibited in imposing the same duties or in inflicting different penalties. The inconsistency does not lie in the mere co-existence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed. When a Federal statute discloses such an intention, it is inconsistent with it for the law of a State to govern the same conduct or matter."

[38] There is little doubt that the WRA is intended to govern the conduct and matters found in the Tasmanian Act inasmuch as they apply to constitutional corporations.

[39] The appellant also relied on the decision of the High Court in Ansett Transport Industries v Wardley (1980) 142 CLR 237 (Ansett), where Barwick CJ said at p.243:

"The principles by the application of which a question of inconsistency is to be decided are now well settled. The paramountcy given to federal law over inconsistent State laws is universal and without exception. Federal law, whether made in pursuance of an exclusive or concurrent constitutional power, prevails over any State law which is inconsistent with it no matter what the subject matter of the State law. The federal and State law need not be about the same subject matter. The only Question is whether the one, i.e. the State law, is inconsistent with the other, the federal law.

Of course, the federal law must be a valid law. Thus, in some cases a threshold question of the constitutional validity of a federal law arises. None does in this case.

Having determined validity, if it arises, the next step is to determine the scope of the federal law. Sometimes the delineation of the "field" in which it operates may serve to determine its scope. Sometimes the purpose of the federal law, gathered from its terms, will indicate that the parliamentary intention was that the federal law would be the law in relation to the matter with which it deals.

But, however approached, in general, the meaning and scope of the federal law must first be determined. By meaning and scope, I mean, of course, the meaning and scope of that part of the federal law with which it is claimed that a State law is inconsistent, though of course the meaning and scope of a part must be determined after an overview of the federal law as a whole. These principles may be gathered from the decisions to which my brother Aickin makes reference.

Having determined the scope of the federal law, inconsistency, if any, of the State laws ought readily to emerge. Sometimes the scope of the federal law will be such as to leave no room at all for the State law. Other times, marginal questions may arise where the scope of the federal law does leave room for what might be called supplementary State law. And, of course, as I have said at times textual opposition of the terms of the State law to those of the federal law will provide the answer to the question of inconsistency."

[40] A major reform referred to in the WorkChoices Bill Explanatory Memorandum is "to simplify the complexity inherent in the existence of six workplace relation jurisdictions in Australia by creating a national workplace relations system based on the corporations power that will apply to a majority of Australia's employers and employees..." Whether the so-called complexity is a reality or not is not relevant to this matter but the Explanatory Memorandum is clear that the intent of the WorkChoices amendments is to create a national system for constitutional corporations based on the corporations power.

Findings:

[41] Many, but not all, of the objectives referred to in s.3 of the WRA are consistent with requirements prescribed by legislation and undertaken by the TIC. Having therefore considered the scope of the WRA I am of the view that the federal law, being the WRA, would apply.

[42] I find that the Commissioner erred in his construction of the WorkChoices amendments and their effect on s.30A of the Tasmanian Act.

[43] The Commissioner erred in not having regard to the effect of s.109 of the Commonwealth Constitution and the relevant High Court authorities. Barwick CJ in Ansett, said:

"The paramountcy given to federal law over an inconsistent State law is universal and without exception. Federal law, whether made in pursuance and exclusive or concurrent constitutional power prevails over any State law which is inconsistent with it no matter what the subject matter of the State law."

[44] Accordingly the TIC lacks the necessary jurisdiction to hear and determine the dispute lodged by Mr Massey as s.30A can have no application to employees of constitutional corporations in respect to claims of alleged unfair dismissal.

[45] The intention of the Tasmanian Parliament in amending the Tasmanian Act is not a matter to which I must have regard when considering jurisdiction. Likewise whether the Tasmanian Parliament was, or was not, cognisant of the impact of the WorkChoices amendments on the Tasmanian Act is not a consideration in this matter.

[46] The appellant also argued that a NAPSA is not a federal award and therefore s.30A would not apply in any case. It is not necessary to address that argument as I have already found that the Commissioner erred in failing to have regard to the effect of the WorkChoices amendments, the provisions of the WRA and the Commonwealth Constitution.

[47] Further, I would uphold the appeal ground which claims error by the Commissioner for his reliance on extrinsic matters. There is no ambiguity or uncertainty about the provisions of s.30A of the Tasmanian Act and s.16 of the WRA. Likewise, in my view, the relevant authorities are unambiguous.

[48] I uphold the grounds of appeal and quash the decision of the Commissioner.

P L Leary
PRESIDENT

DECISION OF DEPUTY PRESIDENT SHELLEY AND COMMISSIONER ABEY

[49] This appeal against a decision of Commissioner McAlpine is an appeal against the first decision made in relation to the jurisdiction of the Tasmanian Industrial Commission to hear and determine industrial disputes where the employer is a constitutional corporation and considering the new federal WorkChoices legislation.

[50] In February of 2006 s.30A of the Industrial Relations Act 1984 (the Tasmanian Act) was amended to provide a remedy through the Tasmanian Industrial Commission for employees subject to the federal Act, the Workplace Relations Act (WRA), who are excluded from a remedy for unfair termination under that Act or to whom the termination provisions in Division 3 of Part IVA of that Act do not apply.

[51] On 27 March 2006 WorkChoices legislation came into effect in the federal jurisdiction, one aspect of which was the intention to override state industrial acts in respect of employees of constitutional corporations.

[52] At the time that the Tasmanian Parliament introduced the changes to the Tasmanian Act there can be no doubt that it was done so in the knowledge that WorkChoices intended to oust state legislation for such employees.

[53] This appeal deals with the effect of WorkChoices when employees of constitutional corporations make applications for a hearing for a dispute in relation to alleged unfair dismissal in the Tasmanian jurisdiction.

[54] The importance of this case can hardly be overstated. The only submissions to the Appeal Bench were those of the respondent, consequently those are the only arguments able to be considered.

[55] Commissioner McAlpine found that:

"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.

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.

The Tasmanian Act was committed on 10 November 2005 and finally passed on 1 December 2005.

It is my view that 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.

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."

[56] It is clear that Commissioner McAlpine reached the conclusion that the WRA considered in the context of s.109 of the Commonwealth Constitution ousts the jurisdiction of the Tasmanian Industrial Commission in respect of employees of constitutional corporations. We agree that this is clearly the case, provided that the WRA is valid, and there must be a presumption that it is at least or until determined otherwise in the appropriate jurisdiction.

[57] However, Commissioner McAlpine also considered the jurisdictional question in the light of the intentions of Tasmanian Parliament when the amendments to s30A were enacted.

[58] Appeal Ground 5 is that:

"The Commissioner erred in law in that he misapplied the rule of statutory interpretation as it applies to extrinsic aids to interpretation in construing s30A of the Industrial Relations Act 1984 (Tas)."

[59] We note that, in a previous appeal dealing with s.30A of the Act - T9746 of 2001 Joshua John Strudwick and Irish Murphy's Pty Ltd, the Tasmanian Chamber of Commerce and Industry, the appellant in the instant case, submitted that "Commissioner Abey's decision was properly founded. It was argued correctly. It was legally correct in that he first found ambiguity. He subsequently went to the extrinsic material that was before him and made a decision on those facts. That is what a commissioner should do and this bench should not interfere with Commissioner Abey's decision."

[60] The extrinsic material referred to in that case was the Hansard record of proceedings in the Legislative Council in respect of s.30A of the Tasmanian Act. The extrinsic material considered by Commissioner McAlpine in the current case is the Hansard record of Legislative Council proceedings in respect of the amended s.30A.

[61] In our view, the Commissioner was entitled to consider the extrinsic material. The Commissioner was required to construe the Tasmanian Act, not the Workplace Relations Act, although of course, he must have regard for the constitutional law.

[62] Whilst it appears incontrovertible that federal law has paramountcy over any state law that is inconsistent with it, and to that extent Commissioner McAlpine erred in finding that the Tasmanian Industrial Commission has jurisdiction to hear and determine the matter, we are of the opinion that the Commissioner embarked upon a proper course of enquiry when he attempted to determine the intentions of the Tasmanian Parliament when considering jurisdiction.

[63] We are of the opinion that there was no requirement for the Commissioner to determine whether or not there are ambiguities and uncertainties in the Workplace Relations Act and the meaning of that Act, but to, as he did, consider the meaning of the Tasmanian Act.

[64] When considering the extrinsic material in order to aid interpretation the enquiry that Commissioner McAlpine embarked upon was to determine the meaning of the Tasmanian Act. He was right to do so. We disagree with President Leary that the intention of Tasmanian Parliament is not a matter we should have regard for when considering jurisdiction. The extrinsic materials, ie Hansard, that the Commissioner considered were to assist him in determining the meaning of s.30A of the Tasmanian Act. We are of the opinion that it was proper for him to do so, notwithstanding that in the instant case, as a consequence of WorkChoices, the Commission does not have jurisdiction.

[65] We reject Appeal Ground 5.

[66] We agree with President Leary in respect of the finding as to jurisdiction.

 

 

P C Shelley
DEPUTY PRESIDENT

T J Abey
COMMISSIONER

   

Appearances:
Mr S Cornish and Mr M Watson, Tasmanian Chamber of Commerce and Industry Limited for Sphere Pty Ltd trading as Barron's Char Grill

Date and place of hearing:
2006
July 28
Hobart