IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

These joint appeals came before this Full Bench as a consequence of a decision taken by Mr Commissioner Gozzi. In that matter he had dealt with two disputed claims for recognition of prior service in the United Kingdom by two ex-employees of Coats Patons Pty Ltd.

The two matters were heard concurrently. In the event he found against the appellants. He decided that prior service in U.K. should not be counted for the purposes of determining entitlements to long service leave under the terms of the Long Service Leave Act 1976.

Before us, the appellants have relief upon the following grounds upon which to found an appeal:

1. The Commission erred in not giving due weight to the fact that the advice of the Solicitor-General effectively supported the claim of the employees.

2. The Commission erred in that it did not give adequate consideration to a November 1978 letter from the Secretary [for Labour] to the company indicating that overseas service is to be counted for long service leave entitlements.

At that time the Secretary also made reference to a 1957 Solicitor-General opinion supporting the recognition of overseas service.

The relevant extracts from the Secretary's letter, read into transcript, are as follows: [See pages 8 and 9 T1974 of 1988]

3. The Commission erred in that it did not give due weight to the fact that the case concerned not the territorial competence of the legislature, but the construction of the particular legislative provisions. Nor did the case call for the consideration of what was the proper law of the contract. The Act attached non-contractual obligations to the employment relationship and did not seek to regulate, for example, the discharge of obligations under contract governing that relationship.

4. The Commission erred in that it did not give due consideration to the fact that the basic social purpose of the Act was to grant a reward for long service. So regarded, the locality of the service appeared irrelevant.

As to the actual presentation of the joint appeals, we found some difficulty in accepting that what transpired during proceedings before us was other than an attempted re-run of the original case before the Commissioner. Moreover, selected quotation of those parts of the decision which, if taken alone may have appeared to have assisted the appellants' case, when taken out of context do little to assist the Commission in its deliberations.

Appeal grounds 1 and 2 referred to were concerned largely with an opinion given by two Solicitors-General; the first in 1957 and the second in 1988. Those opinions were sought by and forwarded to the Secretary for Labour. It was submitted before Commissioner Gozzi and again before us that they gave support to the appellants' claim for recognition of prior United Kingdom service in calculating their respective entitlements to long service leave. In our view introduction of that material was in any case of doubtful validity and propriety.

Similarly, appeal ground 2 suggested that the Commissioner erred in not giving adequate weight to a letter written by the Secretary for Labour to the management of Coats Patons giving detailed reasons why, in his opinion, overseas service should be counted for the purposes of long service leave. That too was argued before the Commission. In that regard we would observe than an opinion by the Secretary for Labour does not constitute expert evidence. Absolute reliance upon material of that kind to found an appeal is bound to be fatal to the application.

During proceedings before us it was considered appropriate to inform the appellants that a Full Bench of this Commission had already ruled upon the weight to be given to so-called precedent or opinions expressed. That ruling was given in Matter T758 of 1987 - Decision 30 July 1987 (R. H. Gorman v Commissioner King) and arose from an appellant's claim that in dealing with a long service leave dispute the Commissioner had not given proper weight to cases decided by other courts and tribunals.

It bears repeating therefore that this Commission is not a tribunal clothed with the judicial powers of the Commonwealth or the State.

There exist courts of competent jurisdiction established for that purpose.

This Commission is empowered under the Long Service Leave Act 1976 and the State Employees (Long Service Leave Act) 1950, to hear and determine industrial disputes. It is not required, qualified or authorised to judicially interpret a statute such as the Long Service Leave Act. That is a matter for a court of competent jurisdiction. In that regard a legal opinion purporting to interpret an Act is no more than that. Whether that opinion is judged to be correct or incorrect is not for this Commission to determine. This observation holds true whether the Commission be constituted by a single Commissioner or by a Full Bench.

Our task in these proceedings has been to carefully examine the decision taken and the evidence upon which it was based. We will only disturb that decision if we are satisfied that what was done was not reasonably open to be determined in the circumstances.

In this regard the evidence discloses that the Commissioner carefully considered all the material relied upon in this appeal. Indeed we are of the opinion that he dealt meticulously with the arguments for and against the matter to be determined.

It is not for an appeal bench to substitute its own views for those of the Commissioner who heard the matter in the first instance. To do so would be to convert an appeal into a re-hearing.

It is beyond question that the Commissioner had a duty of care to consider carefully all that was put to him by the parties. It is obvious from a study of his decision that he did just that. In publishing his reasons for decision he also made it clear that he had painstakingly considered not only submissions presented from the bar table, but also the decided cases by other courts that were referred to him by the parties.

Based on all the material before him, he then determined the dispute in favour of the company, for the reasons given.

We have no hesitation in concluding that the decision taken by Commissioner Gozzi was open to him in the circumstances. Whether members of this Bench individually or collectively would have taken the same decision is not relevant. As we have already pointed out, this is an appeal. It is not a re-hearing.

Appeal grounds 3 and 4, as with Grounds 1 and 2, presuppose that Commissioner Gozzi had reposed in him the power and duty to interpret what in the appeal application was described as the "legislative provisions". Clearly that presumption was erroneous. He had no such duty or obligation. What he did have was a duty to settle a dispute - no more and no less. In exercising that function he was required to carry out an arbitral as distinct from a judicial exercise. In the Ranger Uranium Case1 referred to during proceedings, the High Court, by unanimous decision said:

"It follows in our opinion that the dispute notified to the Commission is a dispute capable of resolution by the exercise of arbitral power. The resolution of the dispute does not involve the assumption of judicial power not possessed by the Commission, notwithstanding that in the course of the resolution of the dispute the Commission may undertake similar inquiries and determine similar questions of fact as would be made and determined in proceedings brought for the enforcement of the Award pursuant to s.119 of the Act, and notwithstanding that in the course thereof it may form an opinion as to the legal rights and obligations of the parties."

In carrying out his arbitral function, unquestionably the Commissioner had capacity to exercise his discretion in coming to a final decision in settlement of the dispute.

It follows therefore that we find nothing in the decision to support the conclusion that the Commissioner did not diligently apply himself to a consideration of all the evidence before him in determining the matter in the manner stated. His decision shows that he acted with great care. The end result boiled down to an act of judgment requiring application of discretion. This was a function he was patently entitled to exercise.

The appeals are dismissed.

1 High Court ex parte Miscellaneous Workers' Union 16/12/87 (F.C. 87/062)]