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T9746

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act, 1984
s.70(1) Notice of Appeal

Joshua John Strudwick
(T9746 of 2001)

and

Irish Murphy's Pty Ltd
ACN 004 897 198

 

FULL BENCH:
PRESIDENT P L LEARY
DEPUTY PRESIDENT R J WATLING
COMMISSIONER P A IMLACH

HOBART, 7 January 2002

Appeal against an order handed down by Commissioner Abey arising out of T9604 of 2001 - jurisdiction of the Commission in respect to s.30A of the Act - appeal dismissed - decision confirmed

REASONS FOR DECISION

[1] This is an appeal against a decision of Commissioner Abey in Matter T9604 of 2001 in which he determined that the applicant in that matter, Joshua John Strudwick, was not able to pursue his application alleging unfair termination of employment by Irish Murphy's Pty Ltd (the former employer), in the Tasmanian Industrial Commission (TIC).

[2] Commissioner Abey found that the TIC lacked jurisdiction to hear and determine the matter as Mr Strudwick was a person excluded by the provisions of s.30A of the Industrial Relations Act 1984, (the State Act) which provides:

"A person who is employed, or was formerly employed, under a federal award and to whom the termination provisions contained in Division 3 of Part VIA of the Commonwealth Act [Workplace Relations Act, 1996] do not apply may apply to the Commission for the hearing of a dispute specified in section 29(1A)(a) or (b)."

[3] The Commissioner also found that "The ordinary meaning of the words in s.30A are ambiguous."

[4] He agreed with the following submission of the respondent in the original hearing that "Given the inconsistency between s.30A and the provisions contained in the Workplace Relations Act it's quite unclear whether it was the intent of the Tasmanian legislation to include those employees that are specifically excluded or precluded under the Workplace Relations Act." He said, "Without the assistance of the Hansard debates, I could only conclude that either interpretation is equally open."

[5] The Commissioner found that "It is thus clear from this debate [in the Legislative Council, 16 November, 2000] that the intent of Parliament was to exclude federal award covered employees who are employed by a constitutional corporation from accessing the unfair dismissal provisions of the State Act."

[6] The former employer of Mr Strudwick, Irish Murphy's Pty Ltd, is a constitutional corporation [ACN 004 897 198] and is respondent to the Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award 1998, a federal award made by the Australian Industrial Relations Commission (AIRC) in accord with the provisions of the Workplace Relations Act, 1996 (the Commonwealth Act).

[7] Commissioner Abey found that Mr Strudwick was, prior to his termination, an employee of a constitutional corporation and was covered by the terms and conditions of a federal award and therefore was captured by the provisions of s.170CB of Division 3 of part VIA of the Commonwealth Act which states:

"Subdivision B applies, in so far as it relates to an application to the Commission for relief in relation to the termination of employment of an employee on the ground that the termination was harsh, unjust or unreasonable, if the employee concerned was, before the termination:

(a) a Commonwealth public sector employee; or

(b) a Territory employee; or

(c) a Federal award employee who was employed by a constitutional corporation; or

(d) a Federal award employee who was a waterside worker, maritime employee or flight crew officer, employed in the course of, or in relation to, trade or commerce between Australia and a place outside Australia, between the States, within a Territory, between a State and a Territory, or between 2 Territories."

[8] An appeal was lodged by the Launceston Community Legal Centre (LCLC) on behalf of Mr Strudwick (the appellant). Mr P Tullgren and Ms L Fitzgerald appeared for the appellant, instructed by the LCLC.

[9] The appellant sought the decision of Commissioner Abey be set aside, arguing that it was wrong in law and in fact.

[10] The grounds of appeal are as follows:

    1. "The Commissioner made a legal error in that he erroneously misinterpreted s.30A of the State Act in that it excluded federal award employees who are employed by a constitutional corporation from accessing the unfair dismissal provisions of the State Act;

    2. The Commissioner gave weight to an irrelevant matter, that being the debate in the Legislative Council, on 16 November, 2000, concerning, what became clause 30A of the State Act;

    3. The Commissioner gave insufficient or no weight to a relevant matter, being the Second Reading Speech of the Minister for Industrial Relations and the Explanatory Notes accompanying the Industrial Relations Amendment Bill, 2000

    4. The Commissioner made a mistake as to the facts in that there was no or insufficient evidence available to him, while properly directing himself as to the law, he could reasonably have formed the view he did;

    5. The decision of the Commission was plainly unjust in that it seeks to restrict access to the unfair dismissal provision of the State Act contrary to the meaning of the Act."

[11] The Tasmanian Chamber of Commerce and Industry (TCCI) intervened in the proceedings on its own behalf and on behalf of the Australian Mines and Metals Association (AMMA). The appellant opposed the intervention. The matter for determination goes to the application and interpretation by the Commission of a provision of the State Act and as both employer organisations have an interest in awards and proceedings of the Commission, intervention was granted.

[12] The appellant dealt with all of grounds of appeal together.

[13] It was submitted by Mr Tullgren that Commissioner Abey had erred in concluding that s.30A was ambiguous and that he did so by relying on "some very limited part of a lengthy debate in the Legislative Council and failed to refer to certain parts of the debate in the House of Assembly."1

[14] The appellant also submitted that Commissioner Abey had resorted to extrinsic material in order to determine that the section was ambiguous and accepted an assertion by counsel for the respondent that the section was "quite unclear". It was said that unclear does not equate to ambiguous.

[15] The appellant relied, to a large degree, on the provisions of the Acts Interpretation Act 1931 and in particular s.8B, which permits the use of extrinsic material, but only when the ordinary meaning of a provision is ambiguous or obscure.

[16] Mr Tullgren referred us to s.8A and s.8B of the Acts Interpretation Act 1931 which provide:

    s.8A [Regard to be had to purpose or object of Act], states:

    "In the interpretation of a provision of an Act, an interpretation that promotes the purpose or object of the Act is to be preferred to an interpretation that does not promote the purpose of the Act."

    s.8B [Use of extrinsic material in interpretation], provides:

    "(1) Subject to subsection (2), in the interpretation of a provision of an Act, consideration may be given to extrinsic material capable of assisting in the interpretation-

    (a) if the provision is ambiguous or obscure, to provide an interpretation of it; or

    (b) if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable, to provide an interpretation that avoids such result; or

    (c) in any other case, to confirm the interpretation conveyed by the ordinary meaning of the provisions.

    (2) In determining whether consideration should be given to extrinsic material, and in determining the weight to be given to extrinsic material, regards is to be given to-

    (a) the desirability of a provision being interpreted as having its ordinary meaning; and

    (b the undesirability of prolonging legal or other proceedings without compensating advantage; and

    (c) other relevant matters."

    And

    s.8B(3) defines `ordinary meaning' as follows:

    "...the ordinary meaning conveyed by a provision having regard to its context in the Act and to the purpose or object of the Act."

[17] It was also argued by the appellant that it was the intent of the parliament that employees, or former employees, "who are excluded from the Federal act's unfair dismissal remedies" should have access to this Commission. This intent, it was submitted, is clear from a reading of the Second Reading Speeches of both the Minister and the Leader. It was said that in both speeches the word remedy is used.2

[18] Commissioner Abey, in discussing s.30A of the State Act, determined that the provision was `ambiguous'. The appellant submitted that there is no ambiguity in the provision and that by making such a finding the Commissioner fell into error by considering extrinsic matters as referred to in s.8B of the Acts Interpretation Act.

[19] Ms S Butterworth, of the Australian Hotels Association, for the former employer and respondent in this appeal, supported and agreed with the findings of the Commissioner and addressed each of the grounds of appeal.

[20] Appeal ground 1:

      (1) The Commissioner made a legal error in that he erroneously misinterpreted s.30A of the State Act in that it excluded federal award employees who are employed by a constitutional corporation from accessing the unfair dismissal provisions of the State Act.

[21] The respondent submitted that the Commissioner made no legal error in interpreting s.30A of the State Act. Ms Butterworth said that "Section 30A does not purport to give access to the Tasmanian Industrial Commission to all federal award employees, only to those to whom the termination provisions contained in Division 3 of Part VIA of the Commonwealth Act do not apply."3

[22] Further it was submitted by the respondent that "Indeed, no other finding was open to the Commissioner having recourse to the Hansard debates which clearly evidenced parliament's intention to allow federal employees of non-constitutional corporations to access remedies for unfair dismissal in the Tasmanian Industrial Commission."4

[23] Appeal grounds 2 and 3 were dealt with "concurrently":

      (2) The Commissioner gave weight to an irrelevant matter, that being the debate in the Legislative Council, on 16 November, 2000, concerning, what became clause 30A of the State Act.

      (3) The Commissioner gave insufficient or no weight to a relevant matter, being the Second Reading Speech of the Minister for Industrial Relations and the Explanatory Notes accompanying the Industrial Relations Amendment Bill, 2000

[24] Ms Butterworth said in respect to appeal ground 2 that the debate in the Legislative Council on 16 November, 2000, was relevant and was rightly given the consideration deemed appropriate by the Commissioner as it served to clarify parliament's intention in enacting s.30A. It was submitted that a reading of the Hansard of the debate was an appropriate reference to `extrinsic material' when a provision is found to be ambiguous or obscure.

[25] In respect to appeal ground 3 Ms Butterworth said that the documents relied upon by the appellant had not been before the Commissioner in the hearing below and therefore appeal ground 3 should be dismissed. Nevertheless Ms Butterworth did present submissions in respect to those documents saying that they "offer very limited assistance in the circumstance and I would submit that this was the reason that they were not tendered in the initial hearing".5

[26] Appeal ground 4:

      (4) The Commissioner made a mistake as to the facts in that there was no or insufficient evidence available to him, while properly directing himself as to the law, he could reasonably have formed the view he did.

[27] This ground was not addressed by the respondent, as there were no issues of fact raised in the appeal proceedings. It would appear that the facts in the matter were agreed.

[28] Appeal ground 5:

    (5) The decision of the Commission was plainly unjust in that it seeks to restrict access to the unfair dismissal provision of the State Act contrary to the meaning of the Act.

[29] The respondent rejected this ground of appeal and referred to s.3 of the Acts Interpretation Act 1931 which states: "Every Act shall be read and construed subject to the limits of the legislative powers of the State and so as not to exceed such powers, to the intent that, where any enactment thereof, but for this provision, would be construed as being in excess of such powers, it shall nevertheless be a valid enactment to the extent to which it is not in excess of such powers."6

[30] Further it was said that "The Act cannot be construed as transgressing the intentions of the Workplace Relations Act by providing a broad ranging access to federal award covered employees who are otherwise precluded from accessing unfair dismissal remedies in the federal jurisdiction."7

[31] Mr T Edwards, for the interveners, agreed with the finding of Commissioner Abey that the applicant in the proceedings at first instant was excluded by reference to s.30A of the State Act of pursuing any remedy for alleged unfair termination in the TIC. He submitted, "Commissioner Abey's decision was properly founded. It was argued correctly. It was legally correct in that he first found ambiguity. He subsequently went to the extrinsic material that was before him and made a decision on those facts. That is what a commissioner should do and this bench should not interfere with Commissioner Abey's decision."8

[32] Mr Edwards submitted that the crux of the issue is that the State Act cannot apply to the same area that the Commonwealth Act applies and that reference to s.170CB of the Commonwealth Act determines those employees, or former employees, who have access to the AIRC, are then not able to proceed with an application in the TIC.

Findings:

[33] We concur with the submissions of the appellant as they relate to the Acts Interpretation Act and that the words found in the statute should be given their ordinary meaning. We agree with the findings of Commissioner Abey but for different reasons.

[34] We are of the view that there is no need to go any further than a reading of s.30A of the State Act and a reading of s.170CB of the Commonwealth Act.

[35] It is our view that the words are not ambiguous or obscure but are clear and precise and their ordinary meaning is the one we adopt.

[36] The AIRC is required, on numerous occasions, to determine whether in fact an applicant is excluded by Regulation 30(B)(1).

[37] S.170CB of the Commonwealth Act - `Application' - applies to "a Federal award employee who was employed by a constitutional corporation." Mr Strudwick was a "a Federal award employee who was employed by a constitutional corporation" and as such is a person who is employed, or was formerly employed, under a Federal award and to whom the termination provisions contained in Division 3 of Part VIA of the Commonwealth Act do apply. Accordingly the provisions of s.30A of the State Act do not apply to the appellant.

[38] It is our view that that is all that is required to be considered. There is no need to go any further than the `application' provision of the Commonwealth Act to determine who it is that that provision applies to. There is no need to consider any other section of the Commonwealth Act once it has been ascertained that an applicant is subject to s.170CB then the Commonwealth Act applies.

[39] S.30A of the State Act only refers to a person to whom the Commonwealth Act does not apply, it does not refer to a person excluded by a section of the Commonwealth Act.

[40] There was no contest between the parties, in the appeal proceedings, that the appellant was a probationary employee. A probationary employee is a person excluded by s.170CC(1) and Regulation 30B(1) of the Commonwealth Act.

[41] Section 170CC(1) states:

    "(1) The regulations may exclude from the operation of specified provisions of this Division specified classes of employees included in any of the following classes:

    (a) employees engaged under a contract of employment for a specified period of time or a specified task;

    (b) employees serving a period of probation or qualifying period;

    (c) employees engaged on a casual basis for a short period;

    (d) employees whose terms and conditions of employment are governed by special arrangements providing particular protection in respect of termination of employment either generally or in particular circumstances;

    (e) employees in relation to whom the operation of the provisions causes or would cause substantial problems because of:

      (i) their particular conditions of employment; or

      (ii) the size or nature of the undertakings in which they are employed."

[42] Regulation 30B(1) states:

    "(1) For subsection 170CC (1) of the Act, the following kinds of employees are excluded from the operation of Subdivisions B, C, D, E and F of Division 3 of Part VIA of the Act:

    (a) an employee engaged under a contract of employment for a specified period of time;

    (b) an employee engaged under a contract of employment for a specified task;

    (c) an employee serving a period of probation or a qualifying period of employment, if the duration of the period or the maximum duration of the period, as the case may be, is determined in advance and, either:

      (i) the period, or the maximum duration, is 3 months or less; or

      (ii) the period, or the maximum duration:

        (A) is more than 3 months; and

        (B) is reasonable, having regard to the nature and circumstances of the employment;

    (d) a casual employee engaged for a short period, within the meaning of subregulation (3);

    (e) a trainee whose employment under a traineeship agreement or an approved traineeship:

      (i) is for a specified period; or

      (ii) is, for any other reason, limited to the duration of the agreement;

    (f) an employee:

      (i) who is not employed under award conditions; and

      (ii) to whom subsection 170CC (3) or (4) of the Act applies."

[43] We are perhaps fortified in our view, although we do not rely on it, by Commissioner Abey's reference to the debate in the Legislative Council on 16 November 2000, where s.30A of the State Act appeared to be clarified. That clarification is compelling as to the intention of the s.30A and supports our view as to the ordinary meaning of the words.

[44] The appellant referred us to a number of authorities that considered the approach to be adopted when interpreting legislation. We do not refer to any of those as we agree with the submissions presented by the appellant that the words in s.30A are not ambiguous or obscure and rely on the approach described in the authorities as to the proper approach in interpreting the legislation.

[45] In respect to appeal ground 1 we say that Commissioner Abey correctly interpreted s.30A of the State Act and we agree with his finding in respect to its application.

[46] Appeal ground 2 is rejected, as we do not consider it was necessary to refer to any extrinsic material.

[47] Appeal ground 3 refers to the Commissioner not giving sufficient weight to documents not presented or provided to him at the hearing below. We do not take into account appeal ground 3 or any of the submissions presented in respect to it as the documents referred to, and about which it is claimed the Commissioner gave insufficient or no weight, were not before him. No leave was sought or granted to introduce those documents as new material so appeal ground 3 is dismissed.

[48] No submissions were presented in respect to appeal ground 4 and it would appear to us that the facts in the matter were agreed.

[49] In respect to appeal ground 5 we do not accept that the decision of the Commission was unjust or contrary to the Act. The decision does no more than rely on and interpret the provisions of s.30A of the State Act. As stated previously we agree with the finding of the Commissioner as to the application of s.30A but we say that it is not necessary to look any further than the words found in s.30A of the State Act and s.170CB of the Commonwealth Act.

[50] We reject the finding of the Commissioner that s.30A of the State Act is `ambiguous' and `obscure' however we confirm his finding that the appellant is denied access to the jurisdiction of the TIC. Accordingly the conclusion we have reached would negate the need to refer to any extrinsic material.

[51] It is our view that the words found in s.30A are unambiguous and given their ordinary meaning deny access to the TIC to an employee, or former employee, covered by a federal award and employed by a constitutional corporation. Such an employee, or former employee, is able to make application to the AIRC.

 

P L Leary
PRESIDENT

Appearances
Mr P Tullgren and Ms Lyn Fitzgerald of the Tasmanian Trades and Labor Council for Launceston Community Legal Centre
Ms S Butterworth of the Australian Hotels Association
Mr T Edwards of the Tasmanian Chamber of Commerce and Industry Limited and the Australian Mines and Metals Association (Incorporated) intervening

1 Transcript p.7 line 270
2 Transcript p.20 line 804
3 Transcript p.26 line 1078
4 Transcript p.28 line 1157
5 Transcript p.32 line 1314
6 Transcript p.34 line 1377
7 Transcript p.34 line 1390
8 Transcript p.40 line 1653