Association of Professional Engineers Scientists and Managers (APESMA) and Neil Stephenson

[1994] IRCA 4

C A T C H W O R D S

INDUSTRIAL LAW - employer and employee - termination of employment - statute providing remedies - whether proceeding can be brought with respect to termination prior to date of operation of statute - effect of notice of termination.

STATUTES - operation and effect - retrospective operation - vested rights - whether statute providing remedy for unlawful termination of employment applies to termination before date of operation.

WORDS AND PHRASES - "termination".

Industrial Relations Act 1988 ss. 4, 170CA, 170CB, 170DA, 170DC, 170DD, 170DE, 170EA, 170EE, 334, 418, 419, 431.
Industrial Relations Reform Act 1993.
Conciliation and Arbitration Act 1904.
Acts Interpretation Act 1901 s. 4.

Maxwell v. Murphy (1957) 96 C.L.R. 261.
Siagian v. Sanel Pty. Ltd. (Industrial Relations Court of Australia, Wilcox C.J., 27th May 1994, unreported).
Dunham v. Randwick Imaging Pty. Ltd. (Industrial Relations Court of Australia, Wilcox C.J., 27th May 1994, unreported).
Turner v. Australasian Coal and Shale Employees' Federation (1984) 6 F.C.R. 177.
Automatic Fire Sprinklers Pty. Ltd. v. Watson (1946) 72 C.L.R. 435.

ASSOCIATION OF PROFESSIONAL ENGINEERS SCIENTISTS AND MANAGERS AUSTRALIA (APESMA) and NEIL STEPHENSON V. SKILLED ENGINEERING PTY. LTD.
NO. VI 105 of 1994
JOANNE WAINER V. HENNOCKSVILLE PTY. LTD.
NO. VI 112 of 1994
ERIC JAMES V. ENSIGN SERVICES (AUST) PTY. LTD.
NO. VI 113 of 1994
HOWARD WARNOCK V. GOLDFIELDS TURKEYS PTY. LTD.
NO. VI 118 of 1994
YVONNE RIEDEL V. W R GRACE AUSTRALIA LTD.
NO. VI 130 of 1994
GEORGE PLAFAS V. BARRETT BURSTON (INTERNATIONAL) PTY. LTD.
NO. VI 155 of 1994
SIMONE MARGRET KELT V. LILIAN DAFF
NO. VI 161 of 1994
ANGELO LANCIANA V. STAYGLEN INVESTMENTS PTY. LTD. (TRADING AS SLIPS ICE CREAM)
NO. VI 180 of 1994
LAWRENCE JAMES FALLA V. CAMPBELLS CASH & CARRY PTY. LTD.
NO. VI 183 of 1994
JOHN CRAWLEY V. GAINSBOROUGH HARDWARE PTY. LTD. (NOW GAINSBOROUGH HARDWARE INDUSTRIES LTD.)
NO. VI 190 of 1994

JUDGE:     GRAY J.
PLACE:     MELBOURNE
DATE: 10TH JUNE 1994

IN THE INDUSTRIAL RELATIONS     )
  )    No. VI 105 of 1994
COURT OF AUSTRALIA             )    No. VI 112 of 1994
  )    No. VI 113 of 1994
VICTORIA DISTRICT REGISTRY )    No. VI 118 of 1994
  No. VI 130 of 1994
  No. VI 155 of 1994
  No. VI 161 of 1994
  No. VI 180 of 1994
  No. VI 183 of 1994
  No. VI 190 of 1994

B E T W E E N :

ASSOCIATION OF PROFESSIONAL ENGINEERS SCIENTISTS
       AND MANAGERS AUSTRALIA (APESMA) and NEIL STEPHENSON

Applicants

- and -

SKILLED ENGINEERING PTY. LTD.

Respondent

JOANNE WAINER
  Applicant

- and -

HENNOCKSVILLE PTY. LTD.

Respondent

ERIC JAMES
  Applicant

- and -

ENSIGN SERVICES (AUST) PTY. LTD.

Respondent

HOWARD WARNOCK
  Applicant

- and -

GOLDFIELDS TURKEYS PTY. LTD.

Respondent

YVONNE RIEDEL
  Applicant

- and -

W R GRACE AUSTRALIA LTD.

Respondent

GEORGE PLAFAS
  Applicant

- and -

BARRETT BURSTON (INTERNATIONAL) PTY. LTD.

Respondent

SIMONE MARGRET KELT
  Applicant

- and -

LILIAN DAFF
  Respondent

ANGELO LANCIANA
  Applicant

- and -

STAYGLEN INVESTMENTS PTY. LTD.
                  (trading as Slips Ice Cream)
  Respondent

LAWRENCE JAMES FALLA
  Applicant

- and -

CAMPBELLS CASH & CARRY PTY. LTD.
  Respondent

JOHN CRAWLEY
  Applicant

- and -

GAINSBOROUGH HARDWARE PTY. LTD.
           (NOW GAINSBOROUGH HARDWARE INDUSTRIES LTD.)
  Respondent

JUDGE:     Gray J.

PLACE:     Melbourne

DATE: 10th June 1994 

REASONS FOR JUDGMENT

This judgment is given in relation to ten proceedings filed in the Industrial Relations Court of Australia, each of which invokes the jurisdiction given by s. 170EA of the Industrial Relations Act 1988 ("the IR Act"). That section was one of many added to the IR Act by the Industrial Relations Reform Act 1993 ("the Reform Act"). In substance the section provides for the making of an application "for a remedy in respect of termination" of the employment of a person, described as "the employee". The application may be made by the employee or by a trade union whose rules entitle it to represent the industrial interests of the employee.

Section 170EE of the IR Act, which was also inserted by the Reform Act, provides as follows:

"(1)After considering the merits of an application under section 170EA, the Court, unless satisfied that the termination of the employee's employment contravened no provision of this Division (other than section 170DD) may make such orders as it thinks appropriate in order to put the employee in the same position (as nearly as can be done) as if the employment had not been terminated.

(2)The orders the Court may make include, for example:

(a)an order declaring the termination to have contravened this Division;

(b)an order requiring the employer to reinstate the employee;

(c)an order that the employer pay compensation to the employee.

(3)However, the Court is not to order the employer to reinstate the employee if the Court is satisfied that the termination contravened no provision of this Division (other than section 170DB or 170DD).

(4)Nothing in section 170EC or in this section limits the Court's power to make an interim or interlocutory order in relation to an application under section 170EA."

The reference to "this Division" is a reference to division 3 of Pt. VIA of the IR Act. The whole of that part was inserted by the Reform Act. The relevant provisions of division 3, for the purposes of s. 170EE, are found in subdivision B, which contains ss. 170DA to 170DG.

It was treated as common ground for the purposes of the argument in these cases that all of these provisions came into operation on 30th March 1994. The Court was referred to a proclamation, dated 25th March 1994 and published in the Commonwealth of Australia Gazette No. S104 on 28th March 1994, made under s. 2(6) of the Reform Act, bringing into operation a number of provisions, including Pt. 4 of the Reform Act. The Court's attention was not drawn to any proclamation made pursuant to s. 170DA, which makes specific provision for the operation of subdivision B of division 3 of Pt. VIA, other than s. 170DA itself. In fact, there was another proclamation, also made on 25th March 1994, expressed to be made under s. 170DA(1) of the IR Act, and fixing 30th March 1994 as the day on which subdivision B (except s. 170DA) was to commence. This latter proclamation depended for its validity on s. 4(3) of the Acts Interpretation Act 1901.

There are three categories into which all or most of the proceedings fall.  One is cases in which the contract of employment is alleged to have come to an end, whether by the expiry of notice or otherwise, prior to 30th March 1994.  The second is cases in which notice was given prior to 30th March 1994 and expired after that date.  The third is cases in which a payment was made in lieu of notice, prior to 30th March 1994 and the notice, if it ran, expired or would have expired after that date.  One of the cases would appear to have fitted into the third category, but is anomalous in one respect.  The period of notice in respect of which the payment was made is alleged to have been inadequate to satisfy an implied obligation to give reasonable notice, and therefore to have been ineffective to bring about the end of the contract.  It is alleged that the applicant in that case had not elected to treat the contract as at an end prior to 30th March 1994, and that the contract therefore remained on foot after that date.

The purpose of grouping the matters together for argument on 30th May 1994 was to decide the question whether the relevant provisions of the IR Act, as amended by the Reform Act, have any operation with respect to events occurring prior to 30th March 1994. As far as was possible, this question was isolated from factual issues which arise in each of the individual cases. Mr. Amendola, solicitor, appeared for the respondents in seven of the ten proceedings to argue this question. Variations of the argument on behalf of respondents were put by Messrs. Giudice, Lacey and Harris of counsel, each of whom appeared in one of the other three proceedings.

At its heart, the argument on behalf of respondents is simple.  It is founded upon the following statement of Dixon C.J. in Maxwell v. Murphy (1957) 96 C.L.R. 261, at p. 267:

"The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.  But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption.  Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed."

See also Fisher v. Hebburn Ltd. (1960) 105 C.L.R. 188, at p. 194 in the judgment of Fullagar J. and Geraldton Building Co. Pty. Ltd. v. May (1977) 13 A.L.R. 17, at p. 35 in the judgment of Stephen J. and pp. 36-37 in the judgment of Mason J. as he then was.

The argument assumed that s. 170EA is to be regarded as dealing with practice and procedure; it provides an avenue by which a person can approach a new court in a specified situation. Section 170EE is the provision which creates new rights and liabilities. It provides for remedies, which may be granted unless the Court is satisfied that the termination of the employee's employment contravened no provision of division 3, other than s. 170DD. In a case in which the relevant termination had occurred prior to 30th March 1994, the employer would discharge the burden of so satisfying the Court, by pointing out that no provision of division 3 of the IR Act applied at the time when the termination occurred. No contravention was possible. The Court therefore does not have the power to grant any remedy. The argument is well expressed in the as yet unreported judgment of the learned Chief Justice in Siagian v. Sanel Pty. Ltd., delivered on 27th May 1994, at pp. 12-14.  If accepted, it would have the effect that any case involving a termination of employment prior to 30th March 1994 would be bound to fail and ought to be dismissed under o. 20 r. 2 of the Industrial Relations Court Rules.

In Siagian, the learned Chief Justice recorded that counsel for the applicant was "eventually driven to concede" the correctness of the argument.  The learned Chief Justice expressed the view that the concession was correct.  Because the matter was fully argued before me, I regard the question as open. 

Mr. Watson of counsel appeared in five of the proceedings to argue on behalf of the applicants.  His arguments were adopted and expanded upon by Messrs. Lawrence, Kenyon and Lacey of counsel, appearing in three of the other proceedings.  Two of the applicants appeared in person.

Mr. Watson conceded that any effect of the legislation prior to 30th March would operate no earlier than 26th February 1994. This date was chosen for the following reasons. Section 170CA of the IR Act provides that the object of division 3 of Pt. VIA is to give effect or give further effect to, among other international instruments, the Termination of Employment Convention. Section 4(1) of the IR Act defines "Termination of Employment Convention" to mean the Termination of Employment Convention, 1982, a copy of the English text of which is set out in schedule 10.  I propose to refer to that convention as "the Convention".  The preamble to the Convention discloses that it was adopted on 22nd June 1982 by the General Conference of the International Labour Organisation.  By Article 16, the Convention is binding only upon those members of the International Labour Organisation whose ratifications have been registered with the director-general.  It was to come into force twelve months after the date on which the ratification of two members had been so registered and thereafter to come into force for any member twelve months after the date on which that member's ratification was registered.  Australia's ratification was registered on 26th February 1993.  A number of ratifications had been registered prior to that date, so that the Convention was already in force.  It came into force for Australia on 26th February 1994.

Mr. Watson accepted that an international instrument, although ratified by the Australian Government, has no direct effect upon Australian domestic law unless and until implemented by legislation.  Authority for this proposition is to be found in the joint judgment of Mason C.J. and McHugh J. in Dietrich v. R (1992) 177 C.L.R. 292, at p. 305, and in the cases there cited. At pp. 305-306, their Honours went on to discuss whether international legal instruments may be used to help resolve uncertainty or ambiguity in judge-made law, or in legislation. See also Dawson J. at pp. 348-349 and Toohey J. at pp. 359-360. See also Australasian Meat Industry Employees Union v. Meat and Allied Trades Federation of Australia (1991) 32 F.C.R. 318, at p. 327. There may also be cases in which an international instrument is binding on the executive government of Australia in its dealings with people. Reference is made to Ah Hin Teoh v. Minister of State for Immigration and Ethnic Affairs (Full Court, Federal Court of Australia, 14th April 1994, not yet reported).  None of these instances is relevant to the present cases.

Mr. Watson's argument drew upon authorities such as Doro v. Victorian Railways Commissioners [1960] V.R. 84, at p. 86 and George Hudson Pty. Ltd. v. Australian Timber Workers' Union (1923) 32 C.L.R. 413, at pp. 434 and 436-437 in the judgment of Isaacs J., to the effect that the presumption against the retrospective operation of a statute has more or less strength, depending upon the purpose of the legislation. Mr. Watson characterised division 3 of Pt. VIA of the IR Act as remedial legislation, designed to make up a deficiency in Australian law relating to the rights of employees on termination. The purpose of the legislation was characterised as being to provide remedies to employees who would otherwise suffer injustice because of the termination of their employment.

The emphasis on "injustice" was crucial to this argument. Mr. Watson identified three categories of cases. The first category, on which the legislation would have no effect, was that in which no injustice resulted from termination of employment. The second category was that in which employees already had some protection against injustice, e.g. by means of award provisions. Division 3 of Pt. VIA gave rise to no new obligation, but merely provided a new machinery for enforcing the existing obligation. Only in the third category of case would the legislation provide wholly new obligations and rights. That category consisted of cases in which there was injustice involved in the termination and the employee would have had no right but for the provisions inserted into the IR Act by the Reform Act.

Mr. Watson argued that, because parliament has legislated to give effect to the Convention, it is necessary to construe the provisions of div. 3 of Pt. VIA in accordance with their purpose.  Having identified this purpose as being remedial and the avoidance of injustice, he contended that it would be wrong not to give it the limited retrospectivity of operating in respect of any termination after 26th February 1994.

This argument is confronted by a number of difficulties. Not the least is that it rests on the assumption that all of the prohibitions in subdivision B (even excluding that in s. 170DD, which is excluded from consideration by s. 170EE), can be subsumed under the heading of "injustice". The possibility cannot be ignored of cases in which an employer might not have done "injustice" in dismissing an employee, but might nonetheless fail in discharging the burden imposed by s. 170EE(1). An obvious example is an employer giving notice which accorded with the terms of the employment contract but not with the requirements of s. 170DB. Mr. Watson's second category of cases might include some in which employees had the benefit of partial protection, e.g. under legislation relating to equal opportunity, anti-discrimination or human rights, but did not have the benefit of legislation requiring termination only for a valid reason and forbidding termination which was harsh, unjust or unreasonable, as is the case with s. 170DE.

The truth is that requiring employers to satisfy the burden imposed by s. 170EE(1) in respect of terminations prior to 30th March 1994 would involve giving legislation affecting the rights of those employers retrospective effect. Prior to 30th March 1994, there were many employers who had rights to dismiss employees without regard to some or all of the considerations which now form the prohibitions in subdivision B. It may be that the existence of such rights could be characterised as unjust. They nonetheless existed. Acts by those employers which were perfectly lawful when performed cannot be made unlawful retrospectively without doing violence to the principles referred to by Dixon C.J. in Maxwell v. Murphy (above).

The Reform Act contains clear provisions as to its coming into operation. Such provisions are to be found in s. 2. A specific provision, relating to subdivision B, is found in s. 170DA. That section provides:

"(1)Subject to subsection (2), this Subdivision (except this section) commences on a day, not earlier than 26 February 1994, to be fixed by Proclamation.

(2)If this Subdivision (except this section) does not commence under subsection (1) within the period of 6 months beginning on the day on which the Industrial Relations Reform Act 1993 received the Royal Assent, it commences on the first day after the end of that period."

In cases where parliament intended the provisions of the Reform Act to operate on 26th February 1994, specific provision was made. An example is s. 170DD, which came into force on 30th March but contains a provision dealing specifically with acts occurring on or after 26th February 1994.

I am unable to accept Mr. Watson's submission that the purpose of s. 170DA was simply to warn employers that their conduct was to become proscribed, and to allow them a period in which to remedy any conduct which was about to become unlawful by the proclamation of the operation of subdivision B. In my view, Parliament intended that subdivision B should only operate on its proclamation, or in default of proclamation, six months and one day after the passage of the Reform Act. It may be that the period between the passage of the Reform Act and the proclamation of the operation of subdivision B allowed those employers who were disposed to do so to rid themselves of employees without liability under the impending provisions, but Parliament must have been conscious that this would be so and have intended that it be so.

There remains one major question of construction. That is as to the meaning of "termination" when it is used in ss. 170EA and 170EE. Part of the difficulty is created by the fact that the common law now treats contracts of employment in the same way as it treats other contracts, with respect to their termination. The theory which prevailed formerly, that a contract of employment could be terminated unilaterally, by an act otherwise than in accordance with the terms of the contract, has now been rejected by the courts. It is recognised that a purported termination by one party, otherwise than in accordance with the terms of the contract, amounts to a repudiation of the contract by that party, evincing the intention of that party no longer to be bound by the contract. The other party then has the option of accepting the repudiation as bringing the contract to an end and suing for damages, or of electing to treat the contract as still on foot and claiming a declaration that it is still on foot and orders such as those restraining the employer from treating the invalid act as having brought the contract to an end. See generally Turner v. Australasian Coal and Shale Employees' Federation (1984) 6 F.C.R. 177, at pp. 189-193, Seymour v. Stawell Timber Industries Pty. Ltd. (1985) 9 F.C.R. 241, at pp. 265-266, Wheeler v. Philip Morris Ltd. (1989) 97 A.L.R. 282, at pp. 309-311, Bostik (Australia) Pty. Ltd. v. Gorgevski (No.1) (1992) 36 F.C.R. 20, at pp. 36-38, Ford v. Lismore City Council (1989) 28 I.R. 68 and Reilly v. State of Victoria (Supreme Court of Victoria, Smith J., 20th November 1991, unreported).

One of the grounds advanced by Mr. Watson for giving retrospective effect to subdivision B was that s. 170EE was said not to be exhaustive as to remedies. He argued that an application pursuant to s. 170EA could be joined with an application, relying on s. 418 of the IR Act or the accrued jurisdiction of the Court, for remedies on the basis that the contract of employment was still on foot. The major difficulty with this argument is that, if it were alleged that the contract remained on foot, the possibility of an application under s. 170EA "in respect of termination" of employment would appear to be remote. It is true that accrued jurisdiction may be exercised by a court created under Chapter III of the Constitution, notwithstanding that the claim under federal law which supports the accrued jurisdiction is held to fail. See Burgundy Royale Investments Pty. Ltd. v. Westpac Banking Corporation (1987) 18 F.C.R. 212. It must be doubtful, however, whether the generosity extends to dealing with a claim in the accrued jurisdiction which is the principal claim and which is inconsistent with the existence of any right to claim under the federal law. In any event, the exercise of the accrued jurisdiction is a matter of the discretion of the court concerned.

In Siagian v. Sanel Pty. Ltd., the learned Chief Justice sought to resolve the difficulties inherent in the construction of the word "termination" by resurrecting a distinction between the relationship of employer and employee and the contract of employment.  See pp. 23-39.  After careful consideration of what his Honour said, and of the authorities to which he referred, I respectfully disagree with his Honour as to the continued existence of that distinction, if indeed it ever existed.

As a matter of history, an employment relationship (the relationship of "master and servant" as it was known) was not contractual.  It had about it aspects of status and property.  With the advent of the industrial revolution, commercial considerations dictated a different legal approach to employment.  The law of contract became the means by which relations between employers and employees are regulated.  The results of my researches in relation to this history are set out in more detail in my judgment in Byrne and Frew v. Australian Airlines Limited (1994) 120 A.L.R. 274, at pp. 334-335. The notion that an employment relationship was something special, distinct from or imposed upon the contractual relationship, retarded the development of the law relating to contracts of employment for many years. The law remained overlaid with concepts derived from earlier notions of master and servant. Even so, by the time Automatic Fire Sprinklers Pty. Ltd. v. Watson (1946) 72 C.L.R. 435 was decided, severance of the relationship of employer and employee, without severing the contract of employment, appeared to mean no more than a state in which the employer had instructed the employee not to work, or prevented the employee from working, and thereby claimed to be absolved from paying the remuneration which was the consideration for work performed under the contract.

Such a state undoubtedly involved a breach of contract on the employer's part.  Because it evinced the employer's intention no longer to be bound by the contract, it amounted to a repudiation of the contract and gave rise to the rights of the employee already discussed.  These rights were not recognised at the time.  Indeed, in Watson, at p. 451, Latham C.J. clearly based his continued adherence to the notion of a separate relationship of master and servant on his view that specific performance of a contract of personal service could not be granted.

As a matter of history, courts have not overlaid other types of contracts with notional relationships separate and distinct from them, such that the relationship can be severed while the contract continues to exist.  Courts do not speak of "the relationship of vendor and purchaser", "the relationship of shareholder and company" or "the relationship of insurer and insured" as being relationships which can be severed independently of the severance of the contracts which create those relationships.  Why should they speak in such terms of the relationship of employer and employee?  If a party to a contract refuses to accept the other party's repudiation as bringing the contract to an end, the former party is entitled to enforce all of the obligations of the defaulting party, either specifically or by claims for damages.  So it is now with contracts of employment.  Just as an employer cannot unilaterally determine the contract, it is well established that an employer cannot suspend unilaterally obligations owed to an employee under the contract.  Thus, the employer cannot by refusing to allow the employee to perform any work absolve the employer from the obligation to pay.  As Dixon J. said in Watson, at p. 466, "they also serve who only stand and wait". See also Re Application by Building Workers' Industrial Union of Australia (1979) 41 F.L.R. 192, at p. 194. In Gregory v. Philip Morris Ltd. (1987) 77 A.L.R. 79, at pp. 98-99, I endeavoured to explain why the distinction between the relationship of employer and employee and the contract of employment could no longer be maintained, if ever it had any validity.

The Full Court of the Federal Court of Australia in Turner v. Australasian Coal and Shale Employees' Federation (1984) 6 F.C.R. 177 did not overlook the distinction between termination of the employment relationship and termination of the contract of employment, as is suggested by Macken, McCarry and Sappideen in The Law of Employment, 3rd ed., at p. 161.  Nor did it ignore the supposed distinction because it was unnecessary to deal with it on the facts of the case, as suggested by the learned Chief Justice in Siagian v. Sanel Pty. Ltd., at pp. 32-33. Rather, the court properly treated the supposed distinction as non-existent, once it was recognised that employment contracts were to be treated like other contracts as to their termination and were not to be subject to special rules. Mr. Turner and Elcom Collieries Pty. Ltd. were employee and employer, even though Mr. Turner had not been called upon to perform any work for his employer. A contract of employment existed between them. It was not a contract to bring into effect a relationship of employer and employee at a later date. The fact that Turner was a party to this contract gave him the right to membership of the Australasian Coal and Shale Employees' Federation under what was then s. 144 of the Conciliation and Arbitration Act 1904. In the terms of the rule of that organisation relating to eligibility for membership, he was an "employee[s] engaged in or in connection with the Coal and Shale Industry". The rule would not have permitted Mr. Turner's membership unless he was an employee; it was not expressed to permit such membership by a "person engaged in or in connection with" the relevant industry.

The confusing and misleading distinction between the relationship of employer and employee and the contract of employment, if it ever existed, is dead and gone. No useful purpose is served by attempting to revive it for the purposes of the construction of the provisions of division 3 of Pt. VIA of the IR Act. I turn now to the question of construction of the word "termination" and related words in those provisions.

As I have said, s. 170CA of the Act indicates that the object of division 3 is to give effect or further effect to several international instruments, including the Convention. Section 170CB provides that an expression in division 3 has the same meaning as in the Convention. The word "termination" is used in the Convention. It is therefore necessary to ascertain its meaning in the Convention, in order to determine what it means in division 3.

The full title of the Convention is "Convention Concerning Termination of Employment at the Initiative of The Employer".  The preamble indicates that the Convention was the results of the adoption of "certain proposals with regard to termination of employment at the initiative of the employer, which is the fifth item on the agenda..." of the relevant session of the General Conference of the International Labour Organisation.  Article 3 of the Convention provides as follows:

"For the purpose of this Convention the terms "termination" and "termination of employment" mean termination of employment at the initiative of the employer."

No definition appears of words such as "terminate" and "terminated", but it would be odd if those different parts of speech bore meanings different from that attributed to the noun.

The Convention contains provisions in the nature of prohibitions on termination of employment unless certain conditions are met.  Article 4 provides:

"The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service."

Article 7 provides:

"The employment of a worker shall not be terminated for reasons related to the worker's conduct or performance before he is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity."

Other provisions, such as Articles 11 and 12, require various benefits to be given to "a worker whose employment is to be terminated" and "a worker whose employment has been terminated", respectively.  Article 8 provides that a worker who considers that his employment has been unjustifiably terminated shall be entitled to appeal against that termination to an impartial body, such as a court, labour tribunal, arbitration committee, or arbitrator.  Article 10 is of considerable interest.  It provides as follows:

"If the bodies referred to in Article 8 of this Convention find that termination is unjustified and if they are not empowered or do not find it practicable, in accordance with national law and practice, to declare the termination invalid and/or order or propose reinstatement of the worker, they shall be empowered to order payment of adequate compensation or such other relief as may be deemed appropriate."

The Convention, therefore, focusses on what the employer has done to bring about the end of the employment.  It is the employer's act or acts which is or are regarded as the "termination".  As Article 10 illustrates, the employer's act or acts are to be regarded as the "termination", irrespective of their validity.  That Article contemplates that the appropriate body could declare the termination invalid.  In other words, the appropriate body could declare that the employment continued, notwithstanding the employer's act or acts which amounted to "termination".  It must be remembered that the Convention is an international instrument, which may bind countries whose law accepts the possibility that an employer can by unilateral act bring about the end of the employment, as well as countries like Australia where the law rejects this notion.  The Convention covers all possibilities by focussing on the act of the employer, whether effective or not to bring about the end of the employment, and treating that act as the "termination".

Subdivision B is not only intended to give effect to the Convention, in some respects it echoes the prohibitions found in the Convention. The prohibitions expressed in Articles 4 and 7 of the Convention have found their way into s. 170DE and s. 170DC respectively. The entitlements given by Articles 11 and 12 are reflected in a prohibition in s. 170DB. The structure of the provisions of subdivision B is prohibitive. There are numerous provisions that "an employer must not terminate an employee's employment unless...". The focus is thus on the employer's conduct, rather than on its effect.

Both the requirement that expressions in division 3 of Pt. VIA be given the same meanings as in the Convention and the form of the provisions of division 3 therefore suggest that "termination" refers to what is done by an employer attempting to bring about the end of the employment. The legislative intention is to permit applications under s. 170EA of the IR Act if an employer has done some act terminating or purporting to terminate the employment, irrespective of whether the act is effective to bring about the termination without some further act on the part of the employee. The "termination" referred to in s. 170EA and in s. 170EE is the act of the employer. If the act of the employer is effective to terminate the contract of employment, remedies appropriate to that situation can be granted. If the contract remains on foot, the Court still has the power under s. 170EE(1) to "make such orders as it thinks appropriate in order to put the employee in the same position (as nearly as can be done) as if the employment had not been terminated."

Such a remedy might involve declaring that the act of the employer was ineffective to determine the contract and the making of consequential orders requiring the employer to treat the contract as still on foot. In many cases, for practical purposes, it will be unnecessary to decide whether the contract remains on foot or not. The remedy of reinstatement, with compensation for any loss during the period prior to judgment, will usually be appropriate in either case. It is obviously intended by s. 170EE that this combination of remedies will be the primary resort of the Court. It is the most obvious way to put the employee in the same position (as nearly as can be done) as if the employment had not been terminated. Of course, there is a discretion to grant other remedies, including compensation without reinstatement, in appropriate cases. I refer again to Article 10 of the Convention, which requires that the relevant court or tribunal have power "to declare the termination invalid and/or order or propose reinstatement". Reinstatement is contemplated as a remedy which might be granted to those whose employment is still on foot and to those whose employment has been brought to an end.

The construction which I view as correct gives the greatest beneficial effect to the legislation.  It absolves the Court from determining difficult questions, such as whether a contract of employment, or some separate relationship of employer and employee, has been brought to an end. It also resolves the difficulties which the learned Chief Justice identified at pp. 33-36 of his judgment in Siagian v. Sanel Pty. Ltd. I have already referred to the fact that it overcomes technical limitations on the Court's powers. I am compelled to disagree with the view expressed by the learned Chief Justice at p. 35 that the remedy of reinstatement is applicable only, or is more likely to be granted, in cases where a contract of employment remains on foot. No difficulty has been experienced in applying statutory remedies of reinstatement where they involve the Court ordering the creation of a new contractual relationship between the parties. Such remedies have been granted for years under s. 334 of the IR Act and its predecessor, s. 5 of the Conciliation and Arbitration Act 1904. See Bowling v. General Motors-Holden's Pty. Ltd. (1980) 50 F.L.R. 79, at pp. 90-98.

It should also be noted that the construction which I have adopted assists in giving meaning and effect to s. 170EE(4). In cases in which the "termination" by the employer has not succeeded in bringing to an end the contract of employment, it would in my view be open to the Court to grant appropriate interim and interlocutory relief. In expressing this view, I am respectfully differing from the view expressed by the learned Chief Justice in Dunham v. Randwick Imaging Pty. Ltd. (27th May 1994, not yet reported). Division 3 of Pt. VIA of the Act is legislation giving rights, not taking them away. The fact that it does not extend to contraventions of subdivision B the power to grant a statutory injunction pursuant to s. 431 of the IR Act (as to which see s. 170EH) is not an indication that it has taken away whatever rights might exist to injunctions or other orders that could have been granted by a court of equity, independently of the statutory power. Section 419 of the IR Act gives to this Court the fullest power to grant orders of all kinds, including interlocutory orders. That power is expressly preserved by s. 170EE(4) in the case of applications under s. 170EA. It must be borne in mind, however, that the granting of such orders is discretionary. The availability of the remedies of reinstatement and compensation will no doubt be a factor in the exercise of the Court's discretion. So also will be whatever ability the Court may have to provide an early hearing of a claim lodged under s. 170EA.

The construction which I propose is also supported by the provisions of s. 170EA(3), which imposes the only time limit to be found in relation to applications under s. 170EA. That time limit is conditioned on receipt by the employee of written notice of termination. The time allowed is fourteen days, although provision exists for the Court to allow a further period. Written notice might be for a long period. It would be strange if an employee who had received written notice was expected to make an application within fourteen days, when the notice had not expired, and could not be given a remedy at the time of commencement of the proceeding (or even at the time when the Court tries the proceeding), because the "employment had not been terminated" (s. 170EE(1)). If the giving of notice is regarded as the termination, and as giving rights immediately it occurs, the difficulty vanishes. The giving of notice is the unilateral exercise of a right by a party to a contract. A notice is not capable of being withdrawn by the party giving it, without the consent of the other party. Such consent may create new contractual rights. If notice is not withdrawn by consent, it operates inexorably to bring the contract to an end, as long as it is notice in accordance with the contract and is not in contravention of any external provision with legislative force. See Birrell v. Australian National Airlines Commission (1984) 5 F.C.R. 447, at pp. 457-459 and the authorities there cited. Thus, in general, notice given by an employer will inevitably bring the contract of employment to an end at the expiry of the notice. There is nothing more the employer can or needs to do to produce this result. It is therefore appropriate to view the giving of notice as the "termination" for the purposes of ss. 170EA and 170EE of the IR Act.

For present purposes, the consequence of the construction which I have adopted is that any act of an employer bringing to an end or purporting to bring to an end a contract of employment, which occurred prior to 30th March 1994, is not a "termination" for the purposes of s. 170EA of the IR Act. No application under that section can therefore be made in respect of such an act. Early in these reasons for judgment, I identified three categories into which it was said that the ten proceedings before me fell. It follows from what I have said that cases in each of those categories will be outside the jurisdiction of the Court given by s. 170EA. In each category, the relevant act of the employer occurred prior to the coming into operation of s. 170EA, which does not apply to it. Subject to the determination of the factual issue in each case as to when the relevant act of the employer occurred, each of those proceedings will be required to be dismissed.

With respect to the anomalous case, it would follow from what I have said that the commencement of the proceeding in this Court would not amount to an election by the employee to treat the contract of employment as at an end. If the remedy under s. 170EA is available irrespective of the effectiveness of the employer's act to bring about the end of the contract, then an attempt to invoke that remedy cannot amount to an acceptance of a repudiation as severing the contract. Whatever remedies might be available in another court may still be available if the employee concerned has not otherwise elected to treat the contract as concluded.

Each of the cases has been adjourned for further directions on 4th July 1994.  On that day, subject to the pressure of business, I propose to determine each of them in accordance with the principles laid down in these reasons for judgment.

Counsel for the applicants

Association of Professional
Engineers Scientists and Managers
Australia (APESMA) and Neil
Stephenson:       Mr. A. Watson

Counsel for the respondent

Skilled Engineering Pty. Ltd.:      Mr. S. Amendola

Solicitor for the respondent

Skilled Engineering Pty. Ltd.:      Phillips Fox

Counsel for the applicant

Joanne Wainer:  Mr. B. Lawrence

Solicitor for the applicant

Joanne Wainer:  Wisewoulds

Counsel for the respondent

Hennocksville Pty. Ltd.:                  Mr. B. Lacey

Solicitor for the respondent

Hennocksville Pty. Ltd.:                  Macpherson & Kelly

Counsel for the applicant

Eric James:  Mr. N.J. Kenyon

Solicitor for the applicant

Eric James:  Clayton Utz

Counsel for the respondent

Ensign Services (Aust) Pty. Ltd.:         Mr. G. Guidice

Solicitor for the respondent

Ensign Services (Aust) Pty. Ltd.:         Minter Ellison Morris   Fletcher

Counsel for the applicant

Howard Warnock:  Mr. A. Watson

Solicitor for the applicant

Howard Warnock:  Maurice Blackburn

Counsel for the respondent

Goldfields Turkeys Pty. Ltd.:             Mr. S. Amendola

Authorised Representative of
the respondent

Goldfields Turkeys Pty. Ltd.:             Victorian Employers'   Chamber of Commerce   and Industry

Counsel for the applicant

Yvonne Riedel:  Mr. A. Watson

Counsel for the respondent

W R Grace Australia Ltd.:           Mr. S. Amendola

Authorised Representative of the
respondent

W R Grace Australia Ltd.:           Australian Chamber of   Manufacturers

Counsel for the applicant

George Plafas:  Mr. A. Watson

Solicitor for the applicant

George Plafas:  Maurice Blackburn

Counsel for the respondent

Barrett Burston (International)

Pty. Ltd.:  Mr. S. Amendola

Authorised Representative of the
respondent

Barrett Burston (International)

Pty. Ltd.:  Australian Chamber of   Manufactures

Counsel for the applicant

Simone Margret Kelt:                Mr. A. Watson

Solicitor for the applicant

Simone Margret Kelt:                Ryan Carlisle Thomas

Counsel for the respondent

Lilian Daff:  Mr. Harris

Solicitor for the respondent

Lilian Daff:  Lucas Baron

The applicant Angelo Lanciana:      Appeared in person

Counsel for the respondent

Stayglen Investments Pty. Ltd.
(trading as Slips Ice Cream):             Mr. S. Amendola

Solicitor for the respondent

Stayglen Investments Pty. Ltd.
(trading as Slips Ice Cream):             Tisher, Liner & Co

Counsel for the applicant

Lawrence James Falla:               Mr. B. Lacey

Solicitor for the applicant

Lawrence James Falla:               Macpherson & Kelly

Counsel for the respondent

Campbells Cash & Carry Pty. Ltd.:         Mr. S. Amendola

Solicitor for the respondent

Campbells Cash & Carry Pty. Ltd.:         Dunhill Madden Butler

The applicant John Crawley:               Appeared in person

Counsel for the respondent

Gainsborough Hardware Pty. Ltd.
(now Gainsborough Hardware Industries
Ltd.):  Mr. S. Amendola

Solicitor for the respondent

Gainsborough Hardware Pty. Ltd.
(now Gainsborough Hardware Industries
Ltd.):  Crawford Collins

Date of Hearing:     30th May 1994

Date of Judgment:    10th June 1994

I certify that this and the preceding thirty-two (32) pages are a true copy of the reasons for judgment of his Honour Justice Gray

Associate:

Date: 10th June 1994