T8454
|
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Australian Mines and Metals Association (Incorporated) and Paul John Rundle
Appeal - order made by Commissioner Imlach in matter T8373 of 1999 issued on 20 May 1999 - leave granted to a legal practitioner to appear - finding that Section 28 of the Industrial Relations Act 1984 does not place any constraint on who may sign an application for a hearing as agent - whether appeal grounds as lodged constituted an appeal for purposes of Section 70(1)(b) of the Act - finding that no appeal may be lodged until hearing concluded and an order made under Section 31(1) of the Act - appeal dismissed on grounds that it was not an appeal within the meaning of Section 70(1)(b) of the Act REASONS FOR DECISION Background The appellant in this matter is the Tasmanian Electro Metallurgical Company Pty Ltd (TEMCO). On 13 April 1999 a firm of legal practitioners-Simon Parsons & Co-acting on the instructions of the respondent, Mr P L Rundle, lodged with the President an application pursuant to Section 29(1A) of the Industrial Relations Act 1984.1 In that application the respondent's agents alleged on his behalf that the appellant unfairly dismissed him on 29 September 1998. By way of remedy the respondent sought reinstatement. The President assigned the matter to Commissioner Imlach who heard the parties on 19 April 1999 in relation to certain procedural questions. In particular, those issues concerned (a) whether the application was properly before the Commission since at the time of signing the document the legal practitioner concerned-Mrs K O'Donnell-had no status pursuant to Section 28(5) of the Industrial Relations Act 1984; (b) an application by Mrs O'Donnell pursuant to Section 28(5) of the Act to appear in the matter; and (c) an application for an extension of the 14 days time period fixed by Section 29(1B) of the Act regarding lodgment of applications relating to termination of employment. We mention in passing, for purposes of completeness, that the facts before the Commissioner disclosed some history of an earlier application by The Australian Workers' Union, Tasmania Branch regarding the respondent's termination of employment.2 With the consent of the parties to that application, Imlach C dismissed that matter on 7 April 1999 without dealing with any of the issues of merit. On 20 May 1999 the Commissioner published his Reasons for Decision in relation to the matter now under appeal. After considering the parties' submissions, Imlach C decided that "there is no bar to such a legal practitioner signing the application in the first place on behalf of the employees concerned"3 and granted the application for an extension of the time period set out in Section 29(1B) of the Act.4 Nowhere in his Reasons for Decision or by way of extempore decision on the day of the hearing, however, did the Commissioner determine the matter of Mrs O'Donnell's application for leave to appear. It is from Commissioner Imlach's decision of 20 May that TEMCO now appeals. The grounds cited in Annexure "A" of the Notice of Appeal are that: "1. The Commission erred in that it did not determine by written decision and therefore give reasons, the application for leave by Counsel to appear as a legal practitioner in the proceedings. 2. The Commission erred in considering the application for extension of time without first considering the legal status of the substantive application in that the application was signed by Counsel in the capacity of a legal practitioner without having any rights to representation at the time of making the application. 3. The Commission erred in determining that no precedent has been established as to individual former employees signing applications of this kind. 4. The Commission erred in that it gave little or no weight to submissions and evidence of the Association that the precedent in the Tasmanian jurisdiction is for former employees to personally sign applications of this kind and the legislative requirement pursuant to sec 29(1A)(a) is to personally make application. 5. The Commission erred in its consideration of the latest precedent in regard to the principles of extension of time by adopting past precedent which has been superseded. 6. The Commission erred in giving little or no weight to the submissions of the Association going to the fact that the applicant's case was devoid of merit and the employer TEMCO had been prejudiced by [a] long period of delay initiated by the applicant employee. 7. Any other grounds which are ancillary or incidental to the above grounds." Procedural Issue Mrs K O'Donnell, a legal practitioner, sought leave to appear for the respondent pursuant to Section 28(5) of the Industrial Relations Act 1984. In support of her application she relied on the following grounds:
Mr W J Fitzgerald, for the appellant, opposed the application. He relied on the following grounds:
After considering the parties' submissions we accepted the grounds relied on by Mrs O'Donnell and granted her leave to appear. Jurisdictional Issue Before going to the merits of the case, we invited the parties to address us on the question of whether the appeal as lodged constituted an appeal within the meaning of Section 70 of the Industrial Relations Act 1984. That is to say whether, in terms of Section 70(1)(b) of the Act and so far as is relevant to the current matter, the appeal is one made against: "an order made by a Commissioner under section 31(1) after a hearing relating to an industrial dispute in respect of any termination of employment ..." W J Fitzgerald for the appellant: There is a valid appeal. Unlike the federal industrial system there is no requirement for an appellant to satisfy any kind of prima facie test. In the first place the issue subject to appeal is one of a fundamental nature. It is not in the public interest for the Commission to require the appellant to incur additional expense by putting full submissions and evidence when there has been no proper determination of the Commission's jurisdiction. As a matter of jurisdiction it is not competent for the Commission to proceed in circumstances where the status of the application at first instance is doubtful and the extension of time issue is, likewise, subject to significant doubt. Second, it is clear that Commissioner Imlach's decision satisfies the requirements of Section 70(1)(b) of the Act. The Commissioner made an order to extend time. In his decision he said "I so order"5 and, while he did not add the words "pursuant to Section 31(1) of the Act", there is no other way by which the Commission might make an order in the circumstances. In addition, the proceedings before the Commissioner comprised a hearing by him "in respect of any termination of employment". The appellant accepts that the whole hearing is not yet concluded. However, the words "after a hearing", as found in Section 70(1)(b) of the Act, do not require a conclusion of the hearing as a whole. It is sufficient if the hearing that concluded concerned only one aspect of a matter and that, in respect of that one aspect, there was a decision and an order. The only construction that can be put on Section 70(1)(b) is that a hearing, for purposes of that provision, comprises a whole series of hearings. In this case the particular aspect was the question of the Commission establishing its jurisdiction by a valid extension of time. Whether the Commission can legitimately hear a matter the basis of which is an alleged unfair termination is a very significant aspect of an "industrial dispute in respect of any termination of employment". Such a matter is one part of the whole hearing process. Even though the issues before Commissioner Imlach were procedural in nature, they are fundamental to the Commission's jurisdiction. Clearly, Section 70(1)(b) makes no distinction between procedural matters and matters of substance. That is because the provision does not require finality in terms of the hearing as a whole. Plainly, there was a hearing; the hearing concerned termination of employment; the parties put submissions to the Commission; and, as to that aspect of the whole process, the Commissioner completed the hearing, made a decision and issued an order. This issue involves practical implications. The appellant has already incurred costs in responding to the respondent's applications for more than six months because of delays initiated by the respondent and/or his representatives. The appellant should not have to incur further substantial costs in completing the whole case when, should it be successful, the matter could have been "knocked out" for want of jurisdiction at first instance. It would be an absolute travesty should the Commission rule against the appellant on this point. Such a ruling would leave unaddressed critical fundamental issues such as Commissioner Imlach's failure to grant leave to Mrs O'Donnell to appear and the Commission's acceptance of an application signed, not by the applicant, but by a legal practitioner. In the case of the latter issue, there are no provisions in the Act or the Regulations that permit such a practice. Past practice clearly indicates that, where a legal practitioner represented an employee, it was the employee, not the legal practitioner, who signed the particular application. There are strong reasons for that practice. First, the absence of a relevant provision in the Act or the Regulations and, second, a legal practitioner cannot sign an application as agent before obtaining that status by way of a grant of leave pursuant to Section 28(5) of the Act. That event can only occur subsequently to lodgment of an application. The Full Bench appeal case of Betta Milk Co-op Society Limited trading as Betta Milk v Patterson6 does not help the respondent in the present matter. In that case the Commission actually granted leave for a legal practitioner to appear whereas, in this matter, there was no such grant of leave. In the proceedings before Commissioner Imlach Mrs O'Donnell had no status at all. Consequently, the submissions that she put to the Commission on behalf of the respondent in these proceedings likewise had no status. There are good reasons-both of a practical and a legal nature-for the Commission to permit this appeal to go ahead so it can be heard on its merits. The circumstances disclose a valid appeal because the grounds relate to the fundamental issue of the Commission's jurisdiction. K O'Donnell for the respondent: Section 28(1) of the Industrial Relations Act 1984 relates only to appearance as an agent, not any other actions of an agent. A solicitor, by signing a form as agent for a client to apply to the Commission for a hearing, is not seeking to appear. The two functions are completely separate. There are a number of jurisdictions similar to that of the Commission-tribunals rather than courts-in which solicitors, as a matter of course, sign applications on behalf of clients. For example, it would be ludicrous in the extreme to suggest that, because a solicitor signed an application for workers' compensation benefits on behalf of a client, the client could not then give evidence at a hearing of the matter because it was not the client but the solicitor who was the applicant. Concerning the Commission's jurisdiction to hear the present appeal a Full Bench of this Commission in Betta Milk Co-op Society Limited trading as Betta Milk v Patterson found that an appeal against a decision to grant leave to a legal practitioner to appear does not fall within the scope of Section 70(1)(b) of the Act. The Full Bench was plainly correct. It is very clear that the purpose of Section 70(1)(b), which is very deliberately and narrowly worded, is to deal with appeals brought against "... an order made by a Commissioner under section 31(1) after a hearing relating to an industrial dispute in respect of any termination of employment ...". The wording of the provision is very important. The hearing that resulted in Commissioner Imlach's order related to an extension of time application. It was not a hearing of the substantive issue and it was not a hearing at which the parties led evidence relating to termination of employment. The Commissioner did not make his order "after a hearing relating to an industrial dispute in respect of any termination of employment", but after a hearing relating to an application for leave to extend time in which to lodge the substantive application. The substantive application effectively had no legal standing until, if it did so at all, the Commission should decide to grant the extension of time application. This latter application was the purpose of the hearing before Imlach C. Had the Commissioner refused the application to extend time that would have been the end of the matter. There never would have been an application before the Commission for a hearing in relation to an industrial dispute in respect of termination of employment. If Commissioner Imlach had taken a decision to proceed to hear and determine all the issues in the one hearing, evidence being led in each of them, then arguably an appeal might have properly been made against his ultimate order or orders, or some of them, because the hearing had taken place. But, those are not the circumstances of the present case. All that occurred here was a hearing in respect of a procedural matter, which does not constitute a hearing of the kind referred to in Section 70(1)(b) of the Act. There is no way in which this Commission can have any jurisdiction to hear an appeal under Section 70(1)(b) on the grounds specified in the Notice of Appeal because the necessary condition precedent is not in place. As a result, the grounds to appeal Commissioner Imlach's orders simply do not exist. The Commission should determine this matter by finding that, in the circumstances, it has no jurisdiction. That outcome, as the appellant argues, may be unfair or a travesty. Nevertheless, those are the provisions of the legislation and the Commission must assume they reflect the intentions of Parliament-that is, that the legislation provides for matters from which Parliament intended an appeal might be made. The present grounds of appeal are not within the scope of those matters. Findings Upon resuming the hearing after having retired to consider the parties' submissions we determined the issue extempore in the following manner:7 "We have considered the submissions that have been made in respect of the preliminary matter as to whether or not an appeal is properly before us and we have this to say. We find that the application that was before Commissioner Imlach is not defective simply because it was made by a legal firm acting as solicitors for the applicant as specified in the application made pursuant to Section 29(1A). We do not accept the contention of the appellant that Section 28 places any constraint on who may sign an application as agent for an applicant. As to the remaining issues raised by the appellant in response to the demands of the Bench, we are of the view that no appeal may be lodged pursuant to Section 70(1)(b) until after a hearing relating to an industrial dispute in respect of any termination of employment has concluded and an order under Section 31(1) has been made. On this point we accept the submissions of the respondent that such a hearing has not yet been concluded. In the circumstances, we dismiss the application to appeal on the grounds that it is not an appeal that falls within the scope of Section 70(1)(b) of the Act. It follows that application T8373 of 1999 will be returned to Commissioner Imlach for continuation of hearing."
F D WESTWOOD Appearances: Date and place of hearing: 1 T8373 of 1999. |