T13167
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TASMANIAN INDUSTRIAL COMMISSION
Industrial Relations Act 1984 Dr Stephen Bennett and Minister administering the State Service Act 2000
Appeal against a decision handed down by Commissioner McAlpine arising out of T12919 of 2007 – alleged unfair termination - jurisdiction - whether an appeal lies against a decision to dismiss an application - found that decision was an “action” pursuant to s31 of the Act – appeal lies
REASONS FOR DECISION
[1] In Matter T12919 of 2007 Commissioner McAlpine dismissed an application by Dr Stephen Bennett who alleged that his termination of employment by the Clarence Community Health Centre (CCHC) was unfair and sought reinstatement. [2] Commissioner McAlpine said: “The applicant failed to prove the termination to be unfair as required by Section 36 of the Act, as a consequence the applicant was not unfairly dismissed and I so find. The application is dismissed and I so order.”[1] [3] Dr Bennett appealed the decision of the Commissioner. [4] Prior to the appeal being listed for hearing the Commission was advised that the Director of Public Prosecutions (DPP) had been instructed by the respondent to the appeal, (the Minister Administering the State Service Act 2000), to argue that:
[5] The appeal was listed for hearing to determine the jurisdiction point raised by the DPP. Submissions of the DPP [6] The DPP referred to s.70(1)(b) which provides:
(1) An appeal may be made to the Full Bench against – (b) an order made by a Commissioner under section 31(1) after a hearing relating to an industrial dispute in respect of the mode, terms or conditions of employment or any termination of employment, including termination resulting from redundancy, or long service leave, or breach of an award or a registered agreement by – (i) the party who applied for the hearing; or (ii) the party to whom the order relates; or (iii) the Minister;….” [7] It was submitted by the DPP that: “In anticipation of an argument to the effect that s.70(1)(b) empowers the Full bench to entertain the present appeal, the following matters are in answer:
[8] Mr Turner for the DPP noted that the original application was filed pursuant to s.29(1A)(a) of the Act as a “dispute in relation to termination of employment.” Further he submitted that the order dismissing the application was made pursuant to s.19(2)(a) of the Act and not under s.31(1). [9] He said: “Now, it’s a fundamental contention of the Minister that that order is made pursuant to the provisions of section 19(2)(a) of the Act and not under section 31, subsection (1) of the Act and I’ll come to those provisions in due course. The third document is the notice of appeal, which is dated 8 June, filed 9 June 2008. In essence it sets out several grounds, but basically they repeat section 70, subsection (1A) of the Act…”[2]
[10] It was the submission of the DPP that the statute is plain, particularly s.70(1)(b) and that it is not necessary to consider an “excursion into statutory interpretation.” However reference was made to a decision of the New South Wales Court of Appeal in Harrison v Melham (2008) NSWCA 67, (Harrison) which, it was submitted, provides some guidance in respect to statutory interpretation. [11] However in regard to statutory interpretation Mr Turner submitted: “I’ll draw your attention to the relevant parts of it shortly, but it concerns in essence an approach to statutory interpretation, which may occupy your attention. I say may because the fundamental proposition again that the Minister is putting by this application is that the phraseology employed in the statute, particularly section 70(1)(b) is plain and you don’t need to go any further than that for purposes of determining ultimately, in my respectful submission, that the Full Bench has no jurisdiction.”[3] [12] Some reliance was placed on the decision of the Supreme Court of Tasmania in Blue Ribbon Products Pty Ltd v Tasmanian Industrial Commission (No 2) [2004] TASSC 28 (29 March 2004) (Blue Ribbon) where His Honour Justice Blow said at paragraph 44: “Having regard to the purpose of the relevant provisions in the Act, the ordinary meaning of section 31(1) the history of the relevant legislative provision and the other matters I have referred to, I think that parliament intended section 31(1) to operate very widely in its scope and to enable orders to be made imposing requirements to take positive action.” [13] Mr Turner relied upon that part of His Honour’s decision where he referred to the requirement to take “positive action” and said that: “You’re actually doing something positive. You’re directing someone to do something. You’re directing someone to take some action and it’s in the future. That’s what 31(1) is about. It’s not doing something which is essentially, “I have made a finding of fact adverse to you; because of that the application is dismissed.” [14] And further: “I’m submitting to you that the full bench does not have any jurisdiction other than that which is given specifically by statute; ie section 70(1), and for the purposes of this submission, for this application, there is no order under section 31 which falls within 70(1)(b). Now, if that means – and I know where you’re going – if that means that there are all manner of applications which are dismissed by a commissioner and which are then sought to be appealed but the full bench has no jurisdiction, that is a matter not for the full bench to consider by way of using strained language to expand its jurisdiction but by way of the Parliament of this state to remedy if it so sees fit.”[4] [15] Accordingly Mr Turner argued that a Full Bench does not have jurisdiction under s.70(1) to hear an appeal against an application which is dismissed under s.31(1). Further it was submitted that in consideration of the comments of Blow J that a decision to dismiss an application is “the conclusion of the proceedings” and no further action is required. To dismiss an application is not a ‘positive’ action.[5] [16] He said: “The dismissal of an application is simply the disposal of it pursuant to that provision [s.19(2)] without making any direction, or without making any order that something is to be done in the future – future tense – or that any action is to be taken – future tense. And I might as well turn now immediately to paragraph 44 of what Blow J said in the Blue Ribbon case. Admittedly it’s obiter, but it’s persuasive authority for purposes of the submission that I’m making to you. And this is in the context of course of a submission being made, or an argument being mounted, to the effect that you could look at section 31(1) in a way that was confined by the existence of subsection (1A). And that was further argued upon the appeal. In other words because 31(1A) specifically referred to certain things, then 31(1) was in effect of no application.”[6] Submissions of Dr Bennett [17] Dr Bennett opposed the application by the DPP. He did not agree with either the logic or merit of the arguments presented by the DPP. He noted that s.69(2) of the Act states that for the purpose of sections 70 and 71 that a ‘decision’ “includes a declaration, an order, a determination, an approval, a refusal, a dismissal, an award or any other finding made by a Commissioner or the Registrar.” [18] He submitted that in a previous application brought by him to the Commission in matter T12723 of 2006 which was dismissed at the hearing below but on appeal was referred back to the member for re-hearing. [19] He argued that the Minister at the time of that appeal hearing did not argue that the appeal was incompetent. He further argued that any “purported complexity of a hearing should not be a consideration if procedural fairness is to be observed.” [Exhibit Bennett 1. paragraph 10] He referred to the comment of Chief Justice Gleeson in a decision of the High Court [2003] HCA 6 [37] where it was said: “Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.” [20] Dr Bennett said that if the argument of the DPP is accepted that a consequence would be a denial of a statutory right of appeal and therefore a practical injustice. [21] In reference to the comments of Blow J in Blue Ribbon Dr Bennett submitted that: “I believe Mr Turner’s intention in citing [44] relates to the use of the term ‘positive action’. He may be advancing an argument that a dismissal is a negative action. However Justice Blow is addressing a specific application. S31(1) uses the words ‘…… that anything should be required to be done, or that any action should be required to be taken…’ (my emphasis.) I submit that Justice Blow’s interpretation has no influence on this application.” [22] And further he submitted: “In [31] Justice Blow states ‘Nevertheless, I think the language of the Act indicates that the Tasmanian Parliament conferred powers upon the Commission in wide and general terms in order to enable it to make orders that would have the highly desirable effect of preventing and settling industrial disputes without regard to what s.20(1)(a) calls ‘technicalities or legal form’, or to the legal dress in which an arrangement has been clothed…”[7] [23] In response to the decisions relied upon by Mr Turner in the event that the Bench wished to undertake an “excursion into statutory interpretation” he noted that Chief Justice Spigelman at [16] said in Harrison: “The task of the court is to interpret the words used by the parliament. It is not to divine the intent of parliament” [24] and further at [19] Spigelman J said: “The language actually used by parliament must prevail” [Exhibit Bennett 1, paragraphs 23, 24] Is the Commissioner’s order made pursuant to s.19(2A) or S31(1)? [25] Section 19 of the Act provides (where relevant):
“19. Jurisdiction of the Commission
(1) Subject to this Act, the Commission has jurisdiction to hear and determine any matter arising from, or relating to, an industrial matter.
(2) For the purposes of subsection (1), the Commission may – make, vary, rescind or correct an award or order;
(aa) conduct dispute resolutions in accordance with section 19A; (b) make a declaration for the purposes of section 43; (c) conduct hearings for settling industrial disputes”
[26] Section 3 Interpretation of the Act states (where relevant): "industrial dispute" means a dispute in relation to an industrial matter – (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; (ii) or the termination of employment of an employee or former employee; (iii) or the reinstatement or re-employment of an employee or a former employee who has been unfairly dismissed; (iv) or the payment of compensation to an employee or a former employee if the Commission determines that reinstatement or re-employment is impracticable; or….” [27] Section 29 of the Act prescribes: “29. Hearings for settling disputes
(1) An organization, employer, employee or the Minister may apply to the President for a hearing before a Commissioner in respect of an industrial dispute.
(1AA) For the purpose of this section, a referral of a matter to the Commission by the State Service Commissioner under section 24(2) of the State Service Act 2000 is taken to be an application to the President for a hearing by the State Service employee named in that referral.
(1A) A former employee may apply to the President for a hearing before a Commissioner in respect of an industrial dispute relating to–
(a) the termination of employment of the former employee; or
(1D) An application for a hearing in respect of a dispute, including a dispute relating to–
(a) termination of employment; or must contain full particulars of – (e) the circumstances giving rise to the dispute; and
(f) the nature of the claim; and
(g) the remedy being sought by the applicant.”
[28] Section 31 of the Act states (where relevant):
“31. Orders arising from hearings
(1) Subject to this section, where the Commissioner presiding at a hearing under section 29 is of the opinion, after affording the parties at the hearing a reasonable opportunity to make any relevant submissions and considering the views expressed at the hearing, that anything should be required to be done, or that any action should be required to be taken, for the purpose of preventing or settling the industrial dispute in respect of which the hearing was convened, that Commissioner may, by order in writing, direct that that thing is to be done or that action is to be taken. (1A) Before deciding whether or not to make an order in respect of an industrial dispute relating to termination of employment, a Commissioner is to give effect to the provisions of section 30. (1B) If a Commissioner, in hearing an industrial dispute relating to termination of employment, finds that an employee or a former employee has been unfairly dismissed, the Commissioner may –
(a) if he or she believes it to be appropriate, order reinstatement or re-employment of the employee or former employee; or
(b) if in the Commissioner's opinion reinstatement or re-employment is impracticable, order that the employer pay the employee or former employee an amount of compensation, instead of reinstatement or re-employment, that the Commissioner considers appropriate in the circumstances, subject to section 30(12)".
[29] S.31 prescribes the making of orders following a hearing held pursuant to s.29 to settle an industrial dispute relating to an industrial matter, as was the application by Dr Bennett. [30] We are of the view that there is no need for an “excursion into statutory interpretation” as we believe the words are clear and capable of interpretation and application. Accordingly we do not need to consider the submissions presented in respect to statutory interpretation. [31] We are of the view that the legislation should be read down, s.19 does no more than describe the Commission’s jurisdiction and what actions it can take when applications are lodged. This conclusion is consistent with the Full Court judgement in Blue Ribbon Products Pty Ltd v Tasmanian Industrial Commission [2004] TASSC 142 (7 December 2004) (Blue Ribbon) paras 16 to 18 which state: “16 The general arbitral jurisdiction of the Commission is in s19, the relevant provisions of which are:
"19. (1) Subject to this Act, the Commission has jurisdiction to hear and determine any matter arising from, or relating to, an industrial matter.
(2) For the purposes of subsection (1), the Commission may – …
(c) conduct hearings for settling industrial disputes; ..."
17 By s3(1), the expression "'industrial dispute' means a dispute in relation to an industrial matter - (a) that has arisen; or (b) that is likely to arise or is threatened or impending". The expression "industrial matter" is relevantly defined as follows:
"'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 - ...
(ii) the termination of employment of an employee or former employee; or
(iii) the reinstatement or re-employment of an employee or a former employee who has been unfairly dismissed; or
(iv) the payment of compensation to an employee or a former employee if the Commission determines that reinstatement or re-employment is impracticable; or ..."
18 It follows from s19 and the definition of industrial matter, that the Commission had jurisdiction to hear and determine any matter arising from, or relating to, a matter pertaining to the relations of an employer and its employees, and in particular, without limiting the generality of the opening words, to a matter pertaining to the termination of employment of an employee or former employee, the reinstatement or re-employment of an employee or a former employee who had been unfairly dismissed, and the payment of compensation to an employee or a former employee if the Commissioner determined that reinstatement or re-employment was impracticable, and indeed, any matter pertaining to the relations of employers and employees. Therefore, it is beyond question that the Commission's general jurisdiction included hearing and determining any matter arising from, or relating to, the termination by Newemploy of the employees, the reinstatement or re-employment of the employees if they were unfairly dismissed, and the payment of compensation to the employees if the Commission determined that reinstatement or re-employment was impracticable. What is not so clear is whether, in the exercise of that jurisdiction, the Commission had power to make orders in favour of employees that were directed to a person, such as the appellant, who was not, and never had been, the employer of the employees, but had merely hired them from the employer as part of its labour force.” [32] S.31 prescribes the issue of orders to settle an industrial dispute about an industrial matter. [33] That being so the order of the Commissioner is one made pursuant to s.31(1) and is therefore capable of appeal. Findings [34] Mr Turner agreed that the objective of the Act was for the Commission to be able to settle industrial disputes and that the Commissioner’s order settled the dispute but that it was not a positive action and therefore there is no power to hear and determine an appeal against an action to dismiss an application. We would also say that the Act is beneficial legislation. [35] The decision of Blow J in Blue Ribbon which introduced the concept of positive action, was confirmed by the Full Court on appeal. However the judgement must be read in proper context. The comment of Blow J was, as submitted by Mr Turner, “admittedly obiter.” [36] Blow J was required to determine the question of whether an order made pursuant to s31 could extend to an entity that was not the direct employer of the employee who had been terminated. It was in this context that he concluded that Parliament intended s31 to operate “very widely in its scope, and to enable orders to be made imposing requirements to take positive action upon such persons or entities as commissioners think appropriate according to the circumstances of particular cases, provided only that there must be some industrial character to any thing required to be done, or action required to be taken.” [37] The decision of Blow J is authority for the proposition that s31 is to be read broadly, and may include orders made on entities other than the employer. It is not authority for the proposition advanced by Mr Turner; that is, a decision to dismiss an application is not an order made pursuant to s.31. [38] The critical element in our view is that the Commissioner considered whether “anything should be required to be done, or that any action should be required to be taken, for the purpose of preventing or settling the industrial dispute.” [39] We consider the settlement of an industrial dispute relating to an industrial matter, which is the objective of the Commission’s role, is an action contemplated in s.31(1) of the Act. [40] S.19 prescribes that “the Commission has jurisdiction to hear and determine any matter arising from, or relating to, an industrial matter.” [41] In this matter, as in many others, the Commissioner decided that a dismissal of the application by Dr Bennett settled the industrial dispute relating to an industrial matter and issued his order pursuant to s.31(1) accordingly. [42] Directions will be issued to deal with the appeal by Dr Bennett in due course. As far as is possible the appeal will be dealt with by written submissions addressing only the grounds of appeal. [43] In the meantime the parties are encouraged to try and settle the differences between them.
P L Leary Appearances: Date and place of hearing: |