T8040
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Tasmanian Chamber of Commerce and Industry Limited
Appeal - decision by Commissioner Imlach on 5 October 1998 in Matter T7802 of 1998 re alleged breach of the Restaurant Keepers Award - applicant in the matter at first instance lacked power to make application - by consent of parties appeal upheld - decision and order revoked REASONS FOR DECISION This was an appeal under section 70(1) of the Industrial Relations Act 1984. It was brought against a decision of Commissioner Imlach in Matter T7802 of 1998 which was an application for a dispute hearing made by the Chief Executive of the Workplace Standards Authority under section 29(1C) of the Act. The Chief Executive alleged that there had been a breach of the Restaurant Keepers Award in that an employer, Fee and Me Restaurant, had failed to pay to a former employee, Samantha Clark, the appropriate amount of wages prescribed under the award. The Commissioner ordered that certain monies, being arrears of wages due, be paid to the former employee. The grounds of appeal included the contention, as ground 1, that the "Commission did not have the power or jurisdiction to hear the matter as the applicant was not a party entitled to make application pursuant to section 29 (1C) of the Industrial Relations Act 1984". We were informed by Mr Dilger of the Tasmanian Chamber of Commerce and Industry Limited for the employer, that in a matter before Cox C.J. of the Supreme Court of Tasmania1, it had been accepted as an agreed fact that the Chief Executive of the Workplace Standards Authority was not a person with power to make a decision under section 43(1) of the Industrial Relations Act 1984. Mr Williams, for the Secretary, Department of Infrastructure, Energy and Resources, indicated that he was instructed to agree to the first ground of appeal. Both sections 43(1) and 29(1C) provide that the Secretary may make application in respect of the issues covered by those provisions. The Secretary is defined as the "head of the Agency within the meaning of the Tasmanian State Service Act 1984 within which the provision is administered". It seems the Chief executive was not the appropriate Head of Agency at the relevant time so had no power to make an application in respect of a matter under section 29(1C). We agree that ground 1 of the appeal must succeed and we accept the parties' submission that there is no purpose in considering the other grounds of appeal. Accordingly we find the appeal has been made out and pursuant to section 70(13) we hereby revoke the decision and order made by Commissioner Imlach in Matter T7802 of 1998 issued on 5 October 1998.
F D Westwood Appearances: Date and place of hearing: |