T6795
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Australian Liquor, Hospitality and Miscellaneous Workers Union -
Appeal - declaration by President Westwood on 6 February 1997 in matter T6540 of 1996 - Clause 9 - Annual Leave, Restaurant Keepers Award - declaration revoked - matter T6540 referred back to President Westwood REASONS FOR DECISION On 30 September 1996 the Chief Executive, Workplace Standards Authority (the Authority) applied to the President, pursuant to sub-section 43(1) of the Industrial Relations Act 1984, for an interpretation of Clause 9, Annual Leave of the Restaurant Keepers Award.1 Specifically, the issue put to the President was whether absences on workers compensation leave affected an employee's "continuous service" for purposes of accruing annual leave entitlements. In his Reasons For Decision of 6 February 1997 the President, acting in accordance with sub-section 43(4) of the Act, made a declaration in the following form:2
On 25 February 1997 the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch (the Union), an organisation whose members are affected by the above declaration, appealed against the declaration on the following grounds:
Subsequently, the appellant abandoned Ground 5. At the hearing of the appeal Mr S Cooper, legal practitioner, appeared by leave for the appellant Union; Mr G J Williams appeared for the Authority; and Mr S J Gates appeared for the Tasmanian Chamber of Commerce and Industry Limited (TCCI). When proceedings began on Friday 14 March 1997, Mr Cooper's opening submissions gave rise to a procedural question concerning his desire to tender a number of decided authorities that, he acknowledged, were not put to the President in the hearing at first instance. Mr Gates objected to the tender on the grounds that, pursuant to sub-section 71(8) of the Act, such matters "shall be admitted only by leave of the Full Bench hearing the appeal". In the discussion that followed it became apparent to us that two of the authorities involved are decisions of the Supreme Court of Tasmania that relevantly bear on the issue that was before the President. In those cases, the Court considered the predecessor legislation3 to section 84 of the Workers Rehabilitation and Compensation Reform Act 1995,4 the substance of the two provisions, if not the form, being arguably identical. The existence of these two authorities (but not the others on which Mr Cooper sought to rely) caused us some concern, for the reasons that follow. In the proceedings at first instance the record shows the President was alive to and positively directed the parties' attention to the possibility of there being some relevant relationship between section 84 of the Workers Rehabilitation and Compensation Reform Act 1995 and section 42 of the Industrial Relations Act 1984. This latter enactment provides that "an award has effect subject to the provisions of any Act dealing with the same subject-matter". We think it is important to record that discussion as it actually occurred:5
Mr Williams then goes on to add some further explanation that is not relevant for present purposes. The importance of the above discussion, in our mind, is that his response took the President away from the very issue that now appears to be the principle focus of the Union's appeal. After taking these matters into consideration we formed the opinion that, in the circumstances, it is arguable that the question of a relationship, if any, between section 84 of the Workers Rehabilitation and Compensation Reform Act 1995 and section 42 of the Industrial Relations Act 1984, was not an issue before the President at first instance. We then adjourned the hearing for the purpose of discussing our opinion with the parties in chambers. Subsequently, on our own motion, we adjourned the hearing to Wednesday 26 March in order that the parties might have time to obtain further instructions. Upon the resumption of proceedings and after hearing brief submissions from the parties we determined the appeal extempore, giving a decision to the following effect. In this matter we order:
We take this action because of the exceptional circumstances that exist in this case. The particular exception is that, at pages 13-14 of transcript in matter T6540 of 1996 (pages 22-23 of the Appeal Book) the President specifically directs the then applicant's attention to the question of the relationship, if any, between section 84 of the Workers Rehabilitation and Compensation Reform Act 1995 and section 42 of the Industrial Relations Act 1984, asking among other things if the matter had been tested. He was informed that, to the best of the then applicant's knowledge, it had not been tested. It is arguable, in the circumstances, that this is not a case of an incompetent submission at first instance or a case in which the parties simply "played dead". What the case seems to amount to, exceptionally we think, is a very positive misdirection, albeit unintended, of the President. This had as its outcome the effect of ensuring that the issue was not properly or fully addressed before him.
B R Johnson Appearances: Date and Place of Hearing: 1 T6540 of 1996 |