T7168
|
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Tasmanian Chamber of Commerce and Industry Limited and Australian Liquor, Hospitality and Miscellaneous Workers Union - Shop, Distributive and Allied Employees Association,
Appeal - decision by President F D Westwood on 18 July 1997 in matters T6674, T6675, T6676 of 1996 and T6691, T6692, T6693, T6694, T6695, T6696 and T6704 of 1997 - redundancy payments - decision confirmed - appeal dismissed REASONS FOR DECISION Introduction In January 1997, Fosseys (Australia) Pty Ltd (Fosseys) Hobart city store ceased trading. The foreshadowed occurrence of that event led to several industrial disputes between Fosseys and the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch (ALHMWU) and the Shop, Distributive and Allied Employees Association, Tasmanian Branch (SDAEA). The disputes in question concerned the termination of employment of 10 employees and their consequential claims for redundancy payments. Fosseys offered a scale of redundancy payments based on the New South Wales Retail Industry State Redundancy Award standard of:
The applicant organisations, according to the President, rejected Fosseys' offer because, although generous for short-term employees, it "failed to take into account the circumstances of long term employees with more than 6 years' service".1 All the employees claimed reinstatement, alleging that, in the circumstances, their dismissals were unfair. The President heard the matters at first instance and subsequently published his Reasons for Decision on 18 July 1997. Having accepted the parties' submissions that reinstatement was not an option, he found that:2
The President then concluded his decision with the following Order, which he made in settlement of the disputes in question:
[Here the President named the individual employees concerned]
It is from that Order that Fosseys now appeals under Section 70(1)(b) of the Act. In that regard the orders sought by Fosseys from this Bench are that we should (i) revoke the President's Order and (ii) dismiss all the applications. Appearances Mr T J Edwards of the Tasmanian Chamber of Commerce and Industry Limited appeared with Ms A Curtis for and on behalf of the appellant, Fosseys (Australia) Pty Ltd. Mr J Ryan appeared for the respondent Shop, Distributive and Allied Employees Association, Tasmanian Branch with Ms E L Dooley and Mr D Mathewson appeared for the respondent Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch. Procedural Matters 1. Mr Edwards informed us that, of the 10 grounds of appeal specified in Attachment B of the Notice of Appeal, the appellant abandoned Numbers 4, 5, 8 and 10. 2. The parties agreed that we should hear and determine the appeal having regard to the law as it stood at the time of the President's hearing. Grounds of Appeal Appeal Ground No. 1
The President fell into error, Mr Edwards said, because he concentrated on findings of fact in the precedent decisions put to him by Fosseys, instead of taking into account the principles established by those cases. We summarise the cases relied on by Mr Edwards in the following manner. In matter number T125 of 1985,3 the Commission's seminal decision concerning job protection, termination and change, a Full Bench decided to adopt a case by case approach to applications for redundancy payments, counselling employers to avoid "unfair, unjust or unreasonable treatment".4 The Bench in question also identified two specific principles that it believed warranted particular mention, ie employees should (i) receive as much notice as possible and (ii) be given reasonable time off to attend job interviews.5 In T1218 of 1988, a redundancy dispute between the Shop, Distributive and Allied Employees Association (SDAEA) and Dav Jea Nominees (Fotheringhams), then President Koerbin cautioned employers to closely study the spirit and intent of the Full Bench decision in T125 so that they might avoid costly termination payments. T1676 of 1988 concerned a redundancy dispute between the Federated Clerks Union of Australia (FCU) and Tasmaid Foods Pty Ltd. In rejecting the Union's claim, Commissioner King (as he then was) accepted the employer's submission that the Commission must "determine whether in the circumstances, as they were known, the employer acted fairly and reasonably".6 In T2410 of 1990, a redundancy dispute between Cascade Brewery Co Ltd (Cascade) and the Transport Workers' Union of Australia (TWU), Deputy President Robinson observed that, along with the specific principles identified in T125, employers should also (i) counsel employees regarding available alternatives; (ii) retrain or relocate employees; (iii) assist in finding alternative employment; and (iv) provide references.7 T4204 and T4223 of 1993, involving SDAEA and Fosseys Australia Pty Ltd trading as Coles Variety, comprised a redundancy dispute that concerned one employee. Imlach C, in determining the matter, made an order against the Company because it did not observe the redundancy principles established by the Commission.8 In particular, the Commissioner found that the Company had failed to give "adequate, prior notice; to provide counselling, to consider and investigate redeployment and retraining, to assist with finding alternative employment or grant time off for job searching".9 T4613 of 1993 and T4654 of 1994 related to a redundancy dispute between AWU-FIME Amalgamated Union, AMACSU and Pasminco Metals-EZ. In that case Gozzi C accepted the 'fundamental tenet" of T125 regarding notice and consultation with employees to cushion the effect of job losses. Commissioner Gozzi, however, went on to say that, in weighing all the circumstances "the Commission has to consider the action the Company took to ameliorate the impact of the retrenchments".10 The Commissioner then noted, by reference to specific examples, that Pasminco Metals-EZ had provided employees with a wide range of support services.11 The decided cases, Mr Edwards submitted, show that the role of the Commission in redundancy cases is to intercede only in circumstances where there is a finding that the employer acted harshly, unjustly or unreasonably. Such an approach, he added, is entirely consistent with the judgment of the Full Court of the Supreme Court of Tasmania in New Town Timber & Hardware Pty Ltd v Gurr (1995) 5 Tas R. 71. That is to say, reinstatement is the primary remedy for unfair dismissal, with compensation only falling for consideration in circumstances where the Commission decides that reinstatement is, for some reason, impracticable. In the present matter, the parties having conceded the impracticability of reinstatement, the President found that Fosseys acted unfairly in the applicants' case by calculating their redundancy payments in accordance with the New South Wales Retail Industry Redundancy Award.12 In so doing, Mr Edwards submitted, the President failed to apply the principles established in the decided cases and, consequently, erred by not taking into account a material consideration. More specifically, Mr Edwards continued, having declared himself satisfied that the precedent cases reflected the general approach of the Commission in redundancy cases,13 the President later virtually rejected those principles by concluding that:14
Mr Edwards conceded that the decided cases do not constitute principles that are binding at law. However, he added, the very nature of T125 and its application inevitably lead to statements of principle that take on considerable weight because they do not exist in a vacuum. That outcome is best seen, he said, in the fact that while T125 did not attempt to define "fairness", an actual definition has nevertheless emerged as a result of Commission decisions that have since followed. For these reasons, Mr Edwards submitted, the appeal in relation to this ground must succeed. Mr Ryan, in reply, submitted that the appeal ground is misconceived in that it seeks to raise to precedent level matters that are not of precedent value. In fact, he continued, the President expressly agreed with the submissions put to him in this context on the appellant's behalf, ie:15
In dealing with redundancy matters on a case-by-case approach, in accordance with the Full bench decision in T125, the principles enunciated by Commission members in the several cases cited by Mr Edwards are simply principles of guidance. They are not, Mr Ryan continued, rigid principles of a prescriptive kind that virtually control the parties' actions, eg. State and National Wage Case principles. To the contrary, they are principles that only have meaning in the context of the particular fact situation. In that regard, Mr Ryan submitted, the President, having accepted the principles flowing from the decided cases, then proceeded to apply them to the facts and circumstances of the case before him for the purpose of determining whether the employer had acted fairly and reasonably. In short, he said, the President looked at the substance of the matter before him and concentrated on outcome rather than on mere process or form, as urged by Fosseys. Such an approach, Mr Ryan argued, is entirely consistent with the Full Bench decision in T125 and with the concessions made by Mr Edwards, during proceedings before the President, that a case-by-case approach is necessary and "each case must be looked at on its individual merits, and in light of the degree of compliance with the various statements of principle of the Commission ..."16 The context and structure of the President's decision, Mr Ryan contended, make it clear that he did have regard to the principles enunciated in the precedent decisions put to him by Mr Edwards.17 Of those principles, Mr Ryan added, the most important is the case-by-case approach established in T125 of 1985. That approach, he said, is exactly what the President did in the case now under appeal, ie he looked at what Deputy President Robinson called the "spirit and intent of the Commission's Full Bench decision".18 In the circumstances, Mr Ryan submitted, there is absolutely no substance whatsoever to Appeal Ground No. 1. Mr Mathewson, although presenting a detailed submission, did not differ in substance from the views put forward by Mr Ryan. Indeed, Mr Mathewson expressly stated that ALHMWU agreed with SDAEA's submission. In the circumstances, to avoid unnecessary duplication, we do not specifically record the points raised by Mr Mathewson, although we have read his submissions and taken them into account in our deliberations. In our view the appellant's contention that "the President erred in not considering ... the principles set out in the precedent decisions relied on by the employer" is entirely without substance. We say this because it is abundantly clear from the face of his Reasons for Decision that the President not only considered them19 but, having done so, he found that they "do no more than confirm that the Commission has applied the general principles determined in the TCR case."20 In the circumstances, in relation to this ground of appeal, it remains for us to determine whether, as the appellant contends, the President erred in that he failed to accept those principles. We begin our consideration of that issue by accepting the appellant's contention that the Full Bench decision in T125 requires the Commission to adopt a case-by-case approach to redundancy applications and to intervene only where the facts give rise to a finding of "unfair, unjust or unreasonable treatment" on the employer's part.21 The appellant acknowledged that the President accepted this contention when he declared that the precedent cases reasonably reflected the general approach of the Commission in redundancy cases.22 However, Mr Edwards then went on to assert that the President virtually rejected those principles by concluding that the cases concerned did no more than confirm that the Commission "has applied the general principles determined in the TCR case".23 In support of that assertion, Mr Edwards argued that the President concentrated on findings of fact instead of the principles that flowed from those findings.24 We believe this argument misconceives the true nature of the various decisions taken in accordance with the over-arching principles established by T125. We agree with the appellant's contentions that T125 did not attempt to define "fairness" and that the decided cases do not constitute principles that have binding effect at law.25 However, we do not agree with Mr Edwards' assertion that those decisions constitute statements of principle that have some weight or life of their own outside the actual facts and circumstances from which they arise.26 In that sense, it is our opinion that the decided cases relied upon by the appellant are no more or less than decisions taken on the basis of the facts and circumstances that existed in each particular case. As such, each decision is confined to its own fact situation and has no application independently of that environment. There can be no other outcome, we think, because, looking at the issue another way, no decision taken by a Commission member sitting alone can be construed in such a way as to fetter the "case-by-case" discretion determined by the Full Bench in T125. It follows therefore, in our view, that it is wrong to suggest, as the appellant did, that such decisions "inevitably lead to statements of principle that take on considerable weight because they do not exist in a vacuum."27 Clearly, they are neither principles of general application nor, because they are confined to their particular fact situations, do they exist in a vacuum. As a consequence, we are of the opinion that the decided cases relied on by the appellant do not fetter the case-by-case discretion contained in T125 by constituting an emerging or actual definition of "fairness" of the kind for which Mr Edwards argued.28 In the circumstances, having regard to the parties' submissions, we are satisfied that the President did not err by "not accepting the principles set out in the precedent cases relied on by the employer". We believe, for reasons discussed above, that the President was not obliged to accept the contention that the principles were binding on him in the manner suggested by the appellant. Certainly, he was bound to consider the cases put to him and his Reasons for Decision show that he did just that. His decision also discloses that he then went on to find, correctly in our view, that the particular decisions simply confirmed the "case-by-case" approach required of the Commission in such matters by T125. That the President followed such an approach in the case under appeal appears clearly in his Reasons for Decision, which show that he dealt with the case on the basis of its individual merits. For all the reasons advanced above we dismiss the contentions contained in Appeal Ground No. 1. Appeal Ground No. 2
Contrary to the President's finding, Mr Edwards submitted, the evidence clearly discloses that the Company made an offer of alternative employment, albeit that the employment in question was not immediately available. In the circumstances, he contended, while acceptability or reasonableness of the Company's offer might be subject to question, the existence of an alternative to redundancy is not open to doubt - as the President acknowledged in his decision.29 Consequently, since there was available to the relevant employees an option other than that of redundancy, the President's finding that "in the end redundancy became the only option"30 is clearly wrong because it mistakes the facts of the case. The President did not find that the available options were unreasonable or impracticable, just that, in effect, there were no other options available. Accordingly, Mr Edwards concluded, because that statement is demonstrably wrong in fact, the President erred in a way that warranted intervention by this Bench. Mr Ryan submitted that, when seen in context, the President's statement is entirely consistent with the facts as disclosed in the Company's own submissions. That context, he said, appears clearly in the President's decision under the heading "Commitment to assist in finding alternative employment". There, Mr Ryan continued, the President, after discussing all the activities undertaken by Fosseys to assist employees find alternative employment, observed that:31
When viewed in its entirety and in proper context the President's statement, Mr Ryan contended, simply recognised the fact that, despite the Company's best intentions, termination of the applicants' employment nevertheless occurred, ie they became redundant. Consequently, he said, the Company having failed to achieve its objective of alternative employment for all employees, redundancy became the only option. The President's finding, Mr Ryan submitted, was not contrary to the weight of evidence. It was, in fact, consistent with the Company's own submissions, as reflected in the following statement made by Mr Edwards towards the end of the proceedings before the President:33
It is quite clear on the facts, Mr Ryan argued, that the Company did not agree there should be no redundancy payments because, to use the President's words, "in the end redundancy became the only option". In the circumstances, he said, there is "absolutely and utterly no substance whatsoever" to Appeal Ground No. 2.34 Mr Mathewson, in his submission, covered the same issues as those dealt with by Mr Ryan. For that reason we do not repeat his submission here, although we do take it into account in our considerations. We agree with Mr Edwards that the appellant certainly made an offer of alternative employment, ie an offer of future employment with Target, which the President properly reported in his Reasons for Decision.35 However, we do not accept the appellant's further contention that the President erred "in finding that 'in the end redundancy became the only option' ...". In our opinion the President's observations, when considered in their proper context, do not constitute a finding but amount to nothing more than a recital of the particular fact situation that was then before him in this regard. The contextual setting for the words to which the appellant objects appears in the following extract of the President's Reasons for Decision:36
Viewed in that context, rather than in isolation as the appellant suggests, it becomes clearly apparent that the words in question are merely declaratory of the facts that were then before the President. That is to say, although the appellant was committed to securing alternative employment and consequently saw redundancy as a last resort, the facts are that, in the end, the Company could not achieve that outcome (alternative employment) and had to have recourse to the last resort (redundancy). The appellant's own words plainly involve an alternative or an option, ie the "first and foremost objective being to secure alternative employment" but, should that not be available, "redundancy is seen as a last resort". Before the President, Mr Edwards acknowledged the fact that the appellant was "not a hundred per cent successful in finding alternative employment", as he also acknowledged that the Company was "not here arguing for no redundancy payment".37 In our opinion, it is clear that the words in the President's Reasons for Decision to which the appellant objects, when construed in their proper context, do no more than record that fact. It is equally clear to us, on the evidence, that the particular words do not constitute a finding of any kind, let alone a finding that, as Mr Edwards argued, there were no options available other than that of redundancy. Contrary to the thrust of the appellant's argument in respect of this appeal ground, it is our view that the President did not ignore the weight of the evidence by denying the existence of the "alternative employment" option, as the appellant asserted. To the contrary, when the words in question are read in their proper context, rather than in isolation of that context, it becomes abundantly clear, we think, that the President discussed the matter at some length38 before concluding his considerations with the following finding:39
In all the circumstances, we are satisfied that the President did not ignore the weight of the evidence regarding the Company's "alternative employment" option. To the contrary, we believe, his Reasons for Decision show that he acknowledged the appellant's efforts in that regard and weighed them in accordance with the facts and circumstances then before him. That done, the President then went on to make his finding: that, while the Company's efforts did not operate to "replace the act of providing reasonable alternative employment", they did operate to reduce the scale of redundancy payment that he might otherwise have awarded. For all the reasons discussed above, we reject the appellant's contentions and dismiss Appeal Ground No. 2. Appeal Ground No. 3
Mr Edwards submitted that the efforts of the employer regarding sufficiency of notice went well beyond any legally imposed obligation. The Company, he said, first informed employees of the impending closure on or about 21 April 1996. Even when the store finally closed on 11 January 1997, employees received the additional benefit of a specific notice period in that Fosseys paid them to 25 January. In the final analysis, Mr Edwards asserted, the employees received some nine months' notice of Fosseys' decision to close the store. Mr Edwards said that in respect of the extended period of general notice the President, after noting the initial period of notice "was six months' notice as distinct from the eventual nine months' notice", went on to say:40
The President then turned his attention to the question of specific notice. Mr Edwards said that, after describing the circumstances and accepting that five weeks' specific notice was given to all employees, the President concluded his remarks with the observation that:41
The President's near dismissive conclusions, Mr Edwards submitted, were inappropriate given that the relevant award, the Retail Trades Award, prescribes a notice period of only one week. In the circumstances, Mr Edwards contended, the period of notice provided by the Company was considerably more generous than might be supposed from the President's descriptions of "appropriate" and "reasonable". Indeed, Mr Edwards added, the inescapable conclusion that flows from the President's decision in this regard is that he believed a period of nine months' notice should carry no more weight in the employer's favour other than that of being "appropriate" and "reasonable". That must be so, Mr Edwards contended, because no obvious and transparent attempt is discoverable in the President's decision regarding the weight he gave the extended period of notice in concluding that an appropriate severance allowance should be two weeks for each completed year of service. Because of the importance placed on the issue of adequate notice in the Commission's redundancy decisions, particularly T125, Cascade and Coles Variety, Mr Edwards submitted it is incumbent upon the Commission to properly identify the matter and to clearly indicate what weight, if any, it assigns to the feature. The President, Mr Edwards went on, adopted precisely such an approach when considering the question of alternative employment.42 However, he continued, the President's decision contains no apparent corresponding consideration regarding the matter of the extended period of notice provided by the Company. In all the circumstances, Mr Edwards contended, given the high priority the Commission places on adequate notice regarding foreshadowed redundancies, the President erred in failing to give any weight, or sufficient weight, to the generous extended notice provisions made by Fosseys to its employees in the present matter. Mr Ryan submitted that, in his decision, the President made it absolutely clear that he did give consideration to the question of notice.43 In fact, Mr Ryan continued, the President chose not to deal with notice generally, but to carefully and expressly deal separately with general notice and specific notice. In doing so, he had regard to the evidence that was before him and concluded that, as to general notice, it was appropriate and that, as to specific notice, it was reasonable. In the circumstances, Mr Ryan contended, it is obvious that the President did give weight to the periods of notice nominated by the employer, although he did not attempt to quantify that weight. In that regard, Mr Ryan asserted, it was not necessary for him to do so because the weighing of evidence by a tribunal member is not a statistical exercise in which one might assign "nine out of 10 or four out of 10 in terms of weighting".44 Concerning the question of whether the President gave sufficient weight to the employer's total period of notice, Mr Ryan submitted that notice in itself does not have an arbitrary value, its real relevance being in what happens during the notice period. For example, he said, where no notice is given, there is clearly no opportunity for an employer and an employee to consider such matters as alternative employment and the tribunal will weigh the evidence accordingly. However, where extended notice is given, it is not the period of notice itself that is important, but what occurs following the giving of that notice. In the current matter, Mr Ryan argued, most of the case at first instance was run on the basis of how much information was given to employees, their awareness of that information, and whether or not they were to be individually terminated or given alternative employment. That the President properly considered all those issues, he said, is demonstrated by the fact that a key part of his decision deals with the whole issue of finding alternative employment for the employees concerned. In the circumstances, Mr Ryan submitted, it is absolutely clear that the President considered the issue of notice and gave proper weight to it in assessing the level of severance payments that he awarded. He did so, Mr Ryan contended, not by giving an arbitrary value to the actual notice period but by giving value to those actions that occurred within the notice period. It follows, Mr Ryan said, that Appeal Ground No. 3, to the extent that it attempts to raise the fact of notice to a level where it may determine the quantum of severance payment, is wholly misconceived. Accordingly, there is no substance to this ground of appeal. Mr Mathewson agreed with Mr Ryan's submissions. Our perusal of the President's decision discloses that, concerning the extended period of notice provided by the appellant, he canvassed the issue very thoroughly, even to the extent of giving separate consideration to "general notice" and "specific notice".45 In each case the President made particular findings that he believed to be appropriate. In bringing his deliberations to a close the President noted in his Reasons for Decision that he had "considered all the materials and submissions" put to him. In the circumstances, the appellant's contention that "the President erred in that he did not give any weight ... to the extended notice provided by the employer" is, in our view, unsustainable having regard to the facts. The appellant's further contention in this regard is that the President did not give sufficient weight to the period of extended notice provided by the Company, contrary to the emphasis placed on "adequate notice" by T125 and the decisions in Cascade and Coles Variety. We have already noted that the President gave full consideration to the extended period of notice offered by the appellant. In the case of "general notice" he found that "it was appropriate in the circumstances"46 and, in the case of "specific notice", he found that "the period of notice was reasonable".47 It is true, as Mr Edwards pointed out, that thereafter, in his Reasons for Decision, the President made no further reference to the question of notice. For our part, we do not see that he was under any duty to do so, given the thorough manner in which he had previously dealt with the issue. We do accept, however, that T125 obliged the President to consider and weigh all the facts and circumstances of the case before him and, having done so, to then make a finding on that evidence. We think the President's Reasons for Decision show that he did exactly that. Looking at his decision as a whole, it is quite clear the President considered and made findings in respect of the relevance of the decided cases put to him by the appellant.48 It is also equally clear, as pages 20-24 of his Reasons for Decision disclose, that the President considered and made findings in respect of all matters put to him by the appellant concerning its efforts to assist the former employees.49 Having dealt with those matters and having made findings in each case, the President's Reasons for Decision show that he then went on to consider, as T125 required him to do, all those issues in the totality of the case before him and to record his findings having regard to all the facts and circumstances. That the President took that action appears clearly enough in his Reasons for Decision. In respect of the Company's efforts, including the matter of the extended period of notice, the President, having weighed all the factors before him, found that:50
The President's observations raise no doubt in our minds that he took the appellant's efforts into account and assigned weight to them, ie "recognised" them, before going on to make his ultimate finding that "the company's decision to terminate the employees ... with severance payments calculated in accordance with the NSW Retail Industry Redundancy Award was unfair".51 In the circumstances, having regard to our earlier finding that the principles set out in the decided cases that follow T125 do not bind the President in the manner suggested by the appellant,52 we do not accept Mr Edwards' contention that, as to evidentiary weight, the President should have placed more weight on "adequate notice" than on any other one or more of the facts and circumstances that were before him in this case. In that context, the emphasis in T125 regarding redundancy situations, as we see it, is not on adequacy of notice but on failure to give notice, ie "An employer would be acting outside our expectation of fairness if he deliberately, unreasonably, or avoidably failed to give notice of, or consult about, change".53 As to adequacy of notice, however, T125 in a redundancy context simply encourages employers, in the interests of fairness, to "give to those employees who will be affected or are likely to be affected as much forward advice as is, in the circumstances of a particular case, reasonably possible, bearing in mind the nature of [the] business".54 We add here, in passing, that the appellant's submission, in our opinion, tends to confuse notice of or about change (which is the emphasis in T125 concerning redundancy) with actual notice of termination of employment. The latter, of course, is a matter of law, whereas the former, as to the quality of fairness required by T125, is entirely a matter of discretionary judgment for the tribunal member concerned, having regard to the parties' submissions. We are satisfied that the appellant's submissions regarding this appeal ground are misconceived as to the emphasis placed on adequacy of notice in relation to T125 and redundancy situations. Furthermore, in our view, the submissions disclose no error on the part of the President in his exercise of discretion regarding the evidentiary weight he placed on all the facts and circumstances before him. The President's obligation, according to T125, was to weigh all the relevant circumstances and to make a finding based on that evidence. We believe the President properly discharged his duty in that regard and, in doing so, was not required to spell out in detail the specific weight he accorded to each of the elements relied on by the appellant. For all the reasons discussed above, we dismiss Appeal Ground No. 3. Appeal Grounds Nos 6, 7 & 9
At Mr Edwards' request we heard the parties' submissions on these three grounds of appeal as if they were one issue. We took that approach, as did the parties, as a matter of convenience because Appeal Ground No. 9 necessarily involves consideration of some aspects of Appeal Grounds Nos 6 and 7. However, in these Reasons for Decision, for purposes of clarity, we deal with each issue separately, beginning our recital with Appeal Ground No. 9. The ILO Convention and "National Law and Practice" There is no doubt, Mr Edwards submitted, that the Tasmanian Parliament adopted part of ILO Convention 15855 into its domestic law by way of Section 31(1A) of the Industrial Relations Act 1984. However, he went on, it is equally beyond doubt that, at an earlier time, the Convention was incorporated into Commonwealth law by virtue of the Industrial Relations Reform Act 1993. That Act, he said, commenced operation on 30 March 1994 and remained operative until replaced by the Workplace Relations Act 1996 which, as to unfair dismissals, took effect on 31 December 1997. In the circumstances, Mr Edwards submitted, since the employees concerned were all dismissed on 21 December 1996, Section 31(1A) of the Act required the President to consider both State and federal legislation as it stood at the time, ie the date of the dismissals, in determining what is meant by the words "national law and practice". Going first to the question of remedy generally, Mr Edwards said that the procedures to be followed are those discussed by the Full Bench in the recent appeal case of Capital Hill Corporation Pty Ltd v O'Connor,56 ie the Commission must:
Mr Edwards conceded that the above summary tended to read more into Capital Hill than what appeared on the face of the decision. That, he said, was because Capital Hill dealt with a dismissal that was found to be unfair, whereas the present circumstances are marginally different in that they concern redundancy. However, he continued, the suggested approach ensures that all relevant and material considerations will be taken into account at the appropriate point in time and in a correct perspective. That contention, he submitted, is on all fours with the finding in Capital Hill that:57
In the current matter, Mr Edwards went on, it is clear from the face of his decision58 that the President did not have regard to any part of the ILO Convention other than Article 12. Mr Edwards contended that, because Articles 4, 8, 9 and 11 also have application, the President erred in that:
No issues arise from application of the ILO Convention in the present case, Mr Edwards contended, which support the President's findings that (a) the employer's severance payment was unfair and (b) a payment of two weeks per completed year of service was appropriate. In that regard, Mr Edwards submitted, the primary focus of the convention in a redundancy situation is Article 12. So far as is relevant to the current proceedings, Article 12, which appears within Division E - Severance Allowance and Other Income Protection of the Convention, provides that:
Mr Edwards asserted that because Article 12 was squarely before the President by reason of the parties' submissions, he was obliged to reveal details of the considerations that led him to his ultimate findings. To the extent that he did not do so, Mr Edwards submitted, the President fell into serious error. Importantly in that regard, he continued, there is no discussion in the President's decision regarding the meaning of the phrase "in accordance with national law and practice" and whether the Company's redundancy package complied, or failed to comply, with that requirement. The Commission's duty to take into account "national law and practice", Mr Edwards argued, appears clearly enough in the observations of the Full Bench in Capital Hill.59 The words "national law and practice", Mr Edwards submitted, connote something more than the law and practice of any one State regarding redundancy or severance payments. The words used, he said, must be given their natural meaning, ie because the Commonwealth Government is the Convention's ratifying authority, "national law and practice" must relate to law and practice that has a national perspective. There is a specific context, Mr Edwards contended, in which the law as it stood at the time required the President to construe the words "national law and practice". It is relatively well settled, he suggested, that, before the 1994 amendments, the Industrial Relations Act 1984 did not constitute an "adequate alternative remedy" of the kind required by Section 170EB of the then Commonwealth Act - Medhurst v Pallett Industries (1994) 58 IR 335. No case decided after the 1994 amendments, Mr Edwards went on, dealt directly with the status of the Tasmanian enactment concerning that particular issue. However, he submitted, the Full Court of the Australian Industrial Relations Court, in Liddell & Anor v Lembke t/a Cheryl's Unisex Salon & Anor (1995) 56 IR 447, held in effect that the relevant New South Wales legislation was not capable of constituting an "adequate alternative remedy" because (i) it did not provide for "unlawful" termination of employment as distinct from dismissals that were "harsh, unreasonable or unjust"; (ii) it imposed a short time limit on the making of an application that would rarely provide an "adequate alternative remedy" for purposes of the federal Act; and (iii) it did not provide a remedy to those who came seeking compensation only.60 On the basis of Liddell, Mr Edwards submitted:61
From that proposition, Mr Edwards contended, the further proposition follows that the clear intention of the Australian Parliament, in the circumstances, was to take for itself, by means of the "external affairs" power, the ability to deal with unfair dismissals, except where it could be demonstrated that State legislation provided an "adequate alternative remedy". That the Commonwealth relied on its "external affairs" power for implementation of ILO Convention 158, Mr Edwards said, appears plainly in the High Court judgement in Victoria and Others v The Commonwealth (1996) 66 IR 392. These considerations, Mr Edwards argued, lead to the conclusion that the Tasmanian legislation, because of Section 109 of the Constitution, could not have purported to incorporate the ILO Convention into State legislation in some manner inconsistent with an Act of the Commonwealth that dealt with the same matter. That background, Mr Edwards said, demonstrates that the respondents misconstrue the facts of the present matter when they suggest that Tasmania, alone among the States and the Commonwealth, enacted into domestic law some part or parts of ILO Convention 158. To the contrary, he asserted, at the relevant time, ie when the dismissals occurred, the Commonwealth had already enacted legislation for a similar purpose - a point confirmed in Victoria v The Commonwealth. Returning to the President's task under Section 31(1A) of the Act, the proper approach to determining the meaning of the words "national law and practice", Mr Edwards contended, taking into account the requirements Articles 31 and 32 of the Vienna Convention on the Law of Treaties, is to give primacy to the ordinary and natural meaning of the words in the context in which they are used in the ILO Convention, unconstrained by technical rules of English law or legal precedent. That approach, he said, draws support from judgements of the Australian Industrial Relations Court in Andersen v Umbakumba Community Council (1994) 56 IR 102, 104-106 and Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, 203-205. For those reasons, Mr Edwards submitted, the respondents are in error in contending that "it is proper to apply to the actual words in the Convention a meaning not supported by their ordinary and natural meaning".62 In the circumstances, concerning redundancy or severance payments, Mr Edwards argued, only the Australian Commission's Termination, Change and Redundancy decision of 1984 and 198563 (the Federal TCR Case) has the national perspective required by the ordinary and natural meaning of the words "national law and practice". In that regard, he submitted, the respondents are clearly in error in asserting the Federal TCR Case has nothing to do with the ILO Convention. To the contrary, Mr Edwards argued, the Full Bench of the Australian Commission that heard the matter was constantly taken to ILO Convention 158 because it comprised the primary focus of the ACTU's claim. For that reason, he submitted, the respondents' argument that the Federal TCR Case does not have an inextricable link with ILO Convention 158 ignores facts that are self-evident. In addition, the required national perspective, Mr Edwards contended, draws support from the fact that, although New South Wales is different,64 industrial tribunals in South Australia,65 Victoria66 and Western Australia67 all adopted redundancy standards that have their substantial origins in the Federal TCR Case. In Queensland, Mr Edwards submitted, where the relevant industrial legislation mirrors that of the Commonwealth, Fisher C observed in a recent redundancy case, after referring to both the ILO Convention and the Federal TCR Case, that "in my view the TCR provisions encapsulate national practice ...".68 The view of the Industrial Relations Commission of Queensland, Mr Edwards contended, is clearly that the Federal TCR Case represents "national law and practice". Furthermore, Mr Edwards contended, in a recent case in the Australian Commission concerning an application for severance pay, the applicant, in contending for application of the Federal TCR standard, submitted that, among other things:69
Mr Edwards said that, while Laing C ultimately rejected the application on other grounds, he observed in passing concerning the ILO Convention, albeit with some reservations, that the applicant's "arguments do appear to have force". The relevance of the case to the present proceedings however, Mr Edwards submitted, lies in the fact that it discloses that the union applicant in the case in question, contrary to the views expressed by the unions in the current case, held a view identical to that of Fosseys regarding the role of the Federal TCR Case in relation to "national law and practice". In the circumstances, Mr Edwards contended, the overwhelming evidence is that "national law and practice" can only mean the Federal TCR Case. All that Article 12 requires for compliance, he continued, is that "the employer make a payment or a severance allowance at least equivalent to the TCR standard of the AIRC [Australian Industrial Relations Commission] which is based on length of service and the level of wages and must be paid by the employer".70 In Fosseys' case, Mr Edwards added, the Company's offer, which relied on the same criteria, "considerably exceeded the TCR standard".71 Accordingly, Mr Edwards submitted, the President erred in finding that the level of redundancy payments "should be two weeks' pay per year of service"72 because such a conclusion was not open to him on the basis of what the evidence shows constitutes "national law and practice". Furthermore, he added, because Fosseys' severance pay allowance fulfils all the requirements of Article 12, it was not open to the President to find that the Company's decision in that regard was unfair.73 Mr Ryan, supported by Mr Mathewson, submitted that the President concentrated on Article 12 and outcome, rather than on Articles 4 to 11, which deal with process, because of the wide range of concessions made by Fosseys during the course of proceedings.74 All that was properly before the President, in the circumstances, was Article 12 or, in other words, the quantum of severance allowance. In considering that issue, Mr Ryan asserted, Article 12 obliged the President to look at length of service and level of wages. Both parties, he continued, clearly put the issue of length of service to the President. More importantly, Mr Ryan went on, the President raised with Mr Edwards the very specific issue of service as a determinant of severance payments.75 It is clear from the President's decision, Mr Ryan said, that, appropriately, he considered the issue of length of service in some detail in relation to the parties' submissions and the New South Wales Retail Industry (State) Redundancy Award.76 As the result of that consideration he found that because the Award did not properly compensate those employees with periods of service greater than seven years, it was "unfair and unreasonable".77 The matter of quantum or amount of severance pay, Mr Ryan said, was clearly put in issue by the Company on a number of occasions in its submissions to the President. In the circumstances, Mr Ryan submitted, it was therefore both proper and appropriate, in considering his obligations under Section 31(1A) of the Act, that the President should take the view, as he did, that the only issue of practical importance he had to determine was the application of Article 12. Mr Ryan opened his response on the question of "national law and practice" by observing that, since no submissions of that nature were ever put at first instance, the appellant cannot now be heard to argue that the President did not consider or give sufficient weight to them. Nevertheless, Mr Ryan went on, the proper application of the ILO Convention, including the phrase "national law and practice", is a matter of sufficient importance to warrant the Commission considering the parties' submissions, even though they were not before the President. On the matter of treaties and conventions generally, Mr Ryan explained, questions of interpretation frequently arise in circumstances where they have been incorporated into Australian domestic law. The general rule in such cases, Mr Ryan contended, is to have regard to the Vienna Convention on the Interpretation of Treaties to ensure proper recognition of the purpose of the particular treaty or convention.78 Article 31 of the Convention, he said, states in part that:
With this approach in mind, Mr Ryan submitted, the reference to "national law and practice" in the ILO Convention is not a term without meaning in international law. The word "national" as used in that context does not mean the "member State" or sovereign government that is a signatory to the Convention, but refers to the member State's internal system of "law and practice", ie the legal and social structures. That distinction, Mr Ryan contended, is necessary in terms of flexibility because it recognises that, within each member State, there is a wide variety of constitutional and legal arrangements.79 For example, he said, countries that are a federation of member States, such as Australia, as distinct from those that have unitary systems of government, can ratify an international treaty but it only becomes domestic law when subsequently enacted by a relevant Parliament.80 It follows, Mr Ryan asserted, that at the time the Commonwealth Government incorporated the Convention into its industrial legislation, the term "national law and practice" took on a specific meaning that was dependent upon the jurisdiction in which incorporation occurred, ie the federal jurisdiction. A State of the Commonwealth, which has its own constitutional sovereignty that co-exists with that of the Commonwealth,81 can likewise incorporate into its law, as Tasmania has done, obligations that arise under an international treaty. In such circumstances, Mr Ryan submitted, the reference in the Convention to "national law and practice" means the law and practice as it applies to Tasmania. That law and practice, Mr Ryan added, comprises not only the statute and case law of Tasmania itself, but encompasses also the relevant decisions of courts, including the High Court of Australia, that are outside the State of Tasmania. That distinction, Mr Ryan argued, underlies the essential confusion that surrounded the approach of the advocates in Capital Hill. In that matter, Mr Ryan said, the parties confused the concept of "national law and practice", as the term is used in an international treaty, with a Commonwealth law or a law and practice that has general application in Australia. The proper approach for a domestic court faced with applying an international instrument, Mr Ryan added, is to strive to give the words of the particular convention the meaning that the parties intended them to have when they made the instrument. Returning to the present matter, Mr Ryan submitted, the point to be made about the Company's submission is that the Federal TCR Case has nothing to do with the ILO Convention. Although a test case, its application does not extend beyond the federal industrial jurisdiction. It is not, Mr Ryan said, a uniform national standard and has no uniform national application. Uniformity may occur, Mr Ryan continued, should the Commonwealth Government make a law of uniform application. However, that is not presently the case with the ILO Convention. Even where State industrial tribunals have adopted those standards, Mr Ryan explained, they have done so by way of operation of State law - the standards do not apply in those States because of any action on the part of the Commonwealth Government or the Australian Industrial Relations Commission. In the circumstances, Mr Ryan contended, it is absolutely clear that the concept of "national law and practice" could never mean the Federal TCR Case standard. To the contrary, he said, the phrase must rely for its interpretation on Tasmanian law and practice, being the law and practice of the adopting State. In this context, Mr Ryan added, where the Tasmanian approach to severance pay is somewhat wider than that of the Commonwealth, it is especially relevant to note that ratification of an ILO Convention does not operate to reduce existing more generous terms and conditions of employment.82 We commence our consideration of this ground of appeal by disposing of the appellant's threshold contention, ie that the President erred by not considering Articles 4, 8, 9 and 11 of the ILO Convention in arriving at his decision in connection with the applicants' claims. The facts of the matter, as recorded by the President in the following extract of his Reasons for Decision, clearly and unambiguously disclose the position the parties jointly adopted at the outset of proceedings:83
The parties' concessions in this regard, which were not disputed before us, show that they themselves were responsible for focusing the President's attention directly on Article 12 of the Convention. They did this, it seems to us, by reference to, first, Article 10 and the power to "order payment of adequate compensation or such other relief as may be deemed appropriate" and through that power to, second, the specific issue of redundancy payments or severance allowances as provided for by Article 12 of the Convention. In short terms, the parties jointly conceded all the issues of contention that might otherwise have arisen in connection with the Convention by allowing that reinstatement was not practicable (Article 10) and that adequate compensation (Article 10) would be appropriate redundancy payments (Article 12). In the circumstances, the contention that the President erred by going directly to a consideration of the requirements of Article 12 of the Convention without first considering the Convention's preceding Articles is, in our opinion, without substance and we reject it. The appellant's primary contention, in the broad, concerned the assertion that the President erred by either not considering or by not giving any or sufficient weight to the Company's submissions regarding the ILO Convention Standards of General Application. Before us, however, apart from the Articles just discussed, the parties' submissions went specifically to Article 12 and, in particular, to the meaning at law of the words "national law and practice" as they appear in that Article. In this context we deal first with the respondents' contention in rebuttal that, having put no submissions to the President at first instance regarding "national law and practice", the appellant cannot now be heard to assert that the President did not consider or give sufficient weight to Article 12 of the Convention. We do not accept that contention. In our view it is the Commission's duty, in resolving industrial disputes, to apply the relevant and appropriate law. It follows, in our opinion, that it is always open to an appellant to assert that a tribunal member at first instance has misapplied or misconstrued the law in relation to a particular issue. In the circumstances we reject the respondents' contention in rebuttal. We move now to consider the appellant's primary contention. We accept the appellant's assertion that, in considering Article 12, the President was bound to take into account "national law and practice". However, we do not accept that, where no advice was put to him by any party concerning the meaning of "national law and practice", the President was obliged, as the appellant argued, to slavishly set out in his decision a discussion on the point. It is enough in the circumstances, in our opinion, for the President to have recorded in his Reasons for Decision, as he did, that he had "regard to the provisions of Article 12 of the International Labour Organisation's Convention" in coming to his decision.84 For those reasons we reject the appellant's contention that the President erred by not considering Article 12 of the Convention. The appellant's next point of contention was that the Industrial Relations Act 1984, at the time of the dismissals, was not capable of constituting an "adequate alternative remedy" of the kind required by the then Commonwealth industrial relations legislation. We approach this issue with considerable caution because the purpose of the proposition, on its face, is not free of doubt. The appellant's submission appears to raise prima facie a very substantial issue of jurisdiction. If want of jurisdiction is the actual purport of the argument put to us, then the matter of whether the relevant Tasmanian legislation comprised an "adequate alternative remedy" is a question of law that was not put to the President at first instance. Indeed, as we read the record of those proceedings, no party raised any question of the Commission's jurisdiction to hear and determine the applications that were then before the President. It is also arguable that the grounds of appeal, as lodged, do not appear to question the Commission's jurisdiction. Nevertheless, Mr Edwards raised the issue as a contention in his submissions to us without objection from the respondents. In the circumstances and after careful consideration, we believe it is open to us to conclude (and we do so conclude) that Mr Edwards did not intend us to construe the proposition as a ground of appeal against jurisdiction. Rather, we think, he put the matter to us for the primary purpose of establishing the background basis of the appellant's contention that "national law and practice" required the President to focus his attention on the Federal TCR Case.85 In that regard, the appellant encouraged us to accept the contention that we should assign primacy to the federal unfair dismissal legislation that applied at the time because the Australian Parliament, in using its "external affairs" power to enact that legislation, expressed an intention to cover the field unless relevant State legislation provided an "adequate alternative remedy".86 In approaching the question of "national law and practice", we accept the submissions of both parties that, in accordance with the Vienna Convention on the Law of Treaties, we should assign to the words in question their ordinary and natural meaning having regard to the context of their usage in the ILO Convention.87 We are also prepared to accept, since it was again the submission of both parties, that the words concerned derive their meaning from something more than the relevant law and practice of any one State.88 Applying those principles and taking into account, also, the alleged primacy of the Commonwealth legislation at the relevant time, the appellant's contention is that "national law and practice" must mean the Federal TCR Case, since only that decision has the necessary "national perspective" required by the particular phrase. In support of that contention the appellant relied on, in particular but not only, the fact that redundancy standards in South Australia, Western Australia and, arguably, Queensland, together with the standard that applied in the former Victorian State industrial jurisdiction, all derive from the Federal TCR Case. In our opinion, there is no need for us to make any findings regarding the appellant's "primacy of Commonwealth legislation" contention. In order to test the proposition and because it does no mischief to the respondents' case to do so, we are prepared to assume, for purposes of this discussion only, that the appellant's argument is a correct expression of the law. Contrary to submissions of both parties,89 we believe it is arguable that "national law and practice" necessarily encompasses the law and practice of both the Commonwealth and the States. We take this view because, if the appellant's "primacy of Commonwealth legislation" contention is correct (we do not say that it is) then it may be arguable that the Federal TCR Case established a national minimum standard (emphasis is ours) for redundancy or severance payments. That proposition, in fact, reflects the contention put by the applicant employee organisation to Laing C of the Australian Commission in the Systems Intellect Case, upon which Mr Edwards also relied.90 As Commissioner Laing remarked, the argument does "appear to have force".91 Should the contention indeed actually reflect the law then, we think, it will not be because of the Federal TCR Case itself but because the industrial tribunal in Western Australia adopted a redundancy standard that has its origins in the Federal TCR Case. For the same reason, we believe, a similar position would apply in South Australia. In Queensland, where the relevant industrial legislation mirrors that of the Commonwealth, the position appears to be substantially the same, although perhaps for different reasons. New South Wales and Tasmania, however, are different. In New South Wales the redundancy standard, as represented by the Table at page 1 herein, is somewhat higher than the standard set by the Federal TCR Case. In Tasmania, of course, the position is different again because there is no fixed redundancy or severance pay standard, each case being assessed on its merits according to the Full Bench decision in T125 of 1985. Those considerations lead us to the conclusion that while the Federal TCR Case, so far as it may concern State industrial jurisdictions, arguably represents a national minimum redundancy standard in Western Australia, South Australia and Queensland, it achieved that status only because of the operation of State law. The Federal TCR Case standard, as we see it, does not operate in the relevant State industrial jurisdictions merely because it is a decision of the Australian Commission. That is the reason why, in our opinion, the position in New South Wales and Tasmania is different. Simply expressed, neither State industrial jurisdiction chose to adopt the Federal TCR Case as its minimum redundancy standard but opted for a different approach. From these deliberations we conclude that if, as the appellant contends by way of its "primacy of Commonwealth legislation" argument, the Federal TCR Case represents "national law and practice" in the Tasmanian industrial jurisdiction, it does so only to the extent that it may set a minimum standard as to redundancy or severance payments. If, on the other hand, there is no substance to the "primacy of Commonwealth legislation" argument, which is the respondents' position in the present matter, the situation changes only to the extent that there may be no minimum such standard at all in this State. Our conclusion above differs slightly, but importantly, from the view pressed by Mr Edwards. In our case we emphasise that if the Federal TCR Case applies at all in the Tasmanian industrial jurisdiction, it has application only as a minimum standard, whereas Mr Edwards' contention is that it sets both a minimum and a maximum standard. We so construe Mr Edwards' submission from the contention he goes on to make that the overwhelming evidence is that "national law and practice" can only mean the Federal TCR Case and that an employer need only make a payment "at least equivalent to" that standard.92 The above discussion leads us to the conclusion that the appellant's submissions in that regard are misconceived. Assuming there is substance to the "primacy of Commonwealth legislation" argument, the most that can be said of the Federal TCR Case, in our opinion and in so far as it might concern the Tasmanian industrial jurisdiction, is that it comprises a minimum standard for redundancy or severance payments. It therefore follows, in our opinion, that in circumstances where, as in Tasmania, there is no redundancy standard fixed by operation of State law, but only a case-by-case approach, it is open to the Commission as a matter of discretion on the substantial merits of a particular case to exceed the Federal TCR Case minimum if the facts and circumstances allow such a finding. If, on the other hand, the Federal TCR Case has no application in the Tasmanian industrial jurisdiction, there is no impact on the facts and circumstances of the present case. That is because the appeal concerns the President's exercise of discretion, on the facts and circumstances before him and according to T125, to award a redundancy payment that is above, rather than below, the Federal TCR Case standard on which the appellant relies. The above discussions confirm our belief, foreshadowed earlier, that the ordinary and natural meaning of the phrase "national law and practice", as used in the ILO Convention, necessarily encompasses, in a federal system of government such as that in Australia, the law and practice of both the Commonwealth and the States. For that reason, in circumstances such as in Tasmania, where no specific redundancy standard applies by operation of State law, the Federal TCR Case standard, if it applies at all, does so only as a minimum standard. That standard, assuming it applies, may be varied by operation of State law - a case in point, by way of example, being New South Wales. In Tasmania, of course, any such variation can only occur, in present circumstances, on a case-by-case basis in accordance with the Full Bench decision in T125. It remains for us to briefly consider the President's exercise of the discretion vested in him by T125. It is clear that Article 12 of the ILO Convention makes provision for calculation of "a severance allowance or other separation benefits" on the basis of "length of service and the level of wages". It is equally clear that the President specifically raised with Mr Edwards the question of "service as a determinant of severance payments"93 by inviting his opinion on whether "people with extensive periods of service should have them recognised as distinct from those with short - relatively short periods of service".94 After some discussion with the President, Mr Edwards summarised his position in the following words:95
We have already found that the President was not bound by the precedent cases in the manner to which Mr Edwards referred.96 We have also made it plain that we do not accept the appellant's contention that the meaning of "national law and practice" precluded the President from making an order for redundancy payments that exceeded the Federal TCR Case standard. In the circumstances we believe that, contrary to the appellant's submissions, it was open to the President to make the findings and order that he did concerning quantum of redundancy payments. Finally, we do not accept the appellant's further contention that, because the Company's redundancy offer fulfilled all the requirements of Article 12, it was not open to the President to find that the offer was unfair. We take that view because, as we have already discussed, it is our opinion that the measure of redundancy payments in Tasmania and, therefore, satisfaction of the requirements of Article 12, depends on a case-by-case approach and the substantial merits of each particular case. For all the above reasons we dismiss Appeal Ground No. 9. The New South Wales Retail Industry State Redundancy Award In New South Wales, Mr Edwards submitted in relation to Appeal Ground No. 6, the Industrial Relations Commission, in a case concerning redundancy pay, determined a standard represented by the scale of payments that appears at page 1 above97 - the same scale of payments offered by Fosseys to its retrenched employees. The decision, Mr Edwards said, is the one that the President concluded was made by consent.98 However, Mr Edwards went on, the case in question was heard as a test case in respect of four applications for redundancy awards and the decision subsequently flowed into other awards of the New South Wales Commission. It follows therefore, he said, that while it was technically correct for the President to observe that the relevant variation to the Retail Industry Award was a matter of consent, it nonetheless derived from an arbitrated test case. Contrary to the Company's submissions, Mr Ryan argued, the President did not dismiss the New South Wales Retail Industry State Redundancy Award simply because it was made by consent. The President's decision, he said, shows that while he considered the award to be a matter of interest, he went on to observe that:99
It is clear from the President's decision Mr Ryan contended that, acting entirely consistently with the Full Bench decision in T125, he did not dismiss the award but took it into account in his deliberations. Having considered it, however, he determined that is was not the appropriate standard for the circumstances that were then before him. Mr Mathewson relied on similar grounds in submitting that we should dismiss this ground of appeal. Findings Given our findings above regarding "national law and practice" we do not accept that the President was under any obligation to regard the News South Wales Retail Industry (State) Redundancy Award as either a binding or even a reasonable precedent simply because, in the appellant's view, that standard exceeded the Federal TCR Case minimum. We express that opinion because, as we have already noted, the President was not bound by the federal standard, assuming it applied, but by the case-by-case approach set out in T125. We do accept, of course, that the President was obliged to consider the Award in question and to weigh it in the context of all the facts and circumstances that were then before him. His Reasons for Decision make it quite clear that he did just that before concluding with the finding that "the NSW award is not an appropriate formula for these circumstances". In the circumstances, the fact that the President regarded the consent nature of the particular award as a matter of "interest to the Commission but no more than that", even though the award evidently derived from a "test case", is not to the point, in our opinion. That must be so, we think, because the President's finding is simply that it was not an appropriate formula for the circumstances then before him. In that light, in our view, the consent nature of the award and the fact that it may have flowed from an arbitrated "test case" is irrelevant. For those reasons we dismiss Appeal Ground No. 6. "Good Long Service Records with Large and Small Employers" The President's statement as recorded in Appeal Ground No. 7, Mr Edwards submitted, is an observation of general principle intended to have broad application in redundancy matters where there is no alternative agreed position. That must be so, Mr Edwards contended, because the President did not confine his observations to the facts and circumstances of the instant case. To the extent, therefore, that the President, in his final decision, allowed extraneous and irrelevant matters rather than the facts to guide him, he erred in applying his discretion in terms of House v The King [1936] 55 CLR 499. In addition, Mr Edwards continued, the President throughout his decision correctly emphasised the importance of the case-by-case approach. However, notwithstanding that emphasis, he made a statement of broad application that is flagrantly at odds with the case-by-case approach determined by the Full bench in T125. Why else, Mr Edwards asked rhetorically, would there be a reference to "large and small employers"? In the circumstances, he submitted, the President, contrary to the Full Bench direction in T125 that decided upon a case-by-case approach, erred in declaring a redundancy standard of general application. There is nothing in the Company's assertion, Mr Ryan submitted, that, in referring to "large and small employers", the President was purporting to make a statement of general application. So much is plain, he continued, from the President's decision itself where he makes it abundantly clear that, far from determining a principle applicable to all future cases, his findings related only to the matter before him and would not even apply to other employees of Fosseys at the same store that employed the applicants in the current matter.100 Mr Mathewson took the same view. It is not clear to us why the President appended his finding in this regard with the words "large and small employers". That said, however, we do not agree with the appellant's contention that it was a statement of principle intended to have broad application in future redundancy cases. We say this because of the opinion we expressed earlier, in relation to Appeal Ground No. 1, that the "decided cases relied on by the appellant do not fetter the case-by-case discretion contained in T125".101 In such circumstances, it is our view that the President's use of the words in question simply cannot have the broad-reaching effect for which the appellant contended. In addition, the President was careful to observe in his Reasons for Decision, consistently with the case-by-case thrust of T125 we might mention, that "my findings in this matter have no application to any other former employee engaged at the Fosseys store at Hobart". Given such a specific limitation, we do not see how it could be argued convincingly that the President's findings, while not applying to other former employees of the Company might, nevertheless, have future application as "an observation of general principle intended to have broad application in redundancy matters where there is no alternative agreed position".102 For those reasons we dismiss Appeal Ground No. 7. Conclusion Having regard to the several findings we have made and noted above regarding each of the Grounds of Appeal put to us, we decline to make the orders sought by the applicant. In the circumstances, we confirm the President's decision and order and dismiss the appeal.
B R Johnson Appearances: Date and Place of Hearing: 1 T6674 and others, Reasons for Decision 18 July 1997, p. 5. |
|||||||||||||||||||||||||||||