Australian Liquor Hospitality and Miscellaneous Workers Union and Commonwealth of Australia

[1994] IRCA 13

IN THE INDUSTRIAL RELATIONS      )

)

COURT OF AUSTRALIA               )

)
NEW SOUTH WALES DISTRICT REGISTRY )       No. NI 471 of 1994

BETWEEN:      AUSTRALIAN LIQUOR, HOSPITALITY
  AND MISCELLANEOUS WORKERS UNION

Applicant

AND:               COMMONWEALTH OF AUSTRALIA

Respondent

JUDGE:     Moore J

PLACE:     Sydney

DATE:     16 August 1994

REASONS FOR EX TEMPORE JUDGMENT

On 29 June 1994 an application was lodged under s170EA of the Industrial Relations Act 1988 ("the Act") by the Australian Liquor, Hospitality and Miscellaneous Workers Union ("the applicant"). The application concerned the purported termination of the employment of Barry Simmons in June 1994 and sought an order declaring the termination of Mr Simmons' employment as having contravened Div3 of PtVIA of the Act. It also sought an order requiring the respondent, the Commonwealth of Australia, to reinstate Mr Simmons as well as compensation.

As a result of that application having been made the respondent applied to the Court by notice of motion filed 1 August 1994 seeking an order that the Court permanently stay or dismiss the application. The circumstances of Mr Simmons employment were that he was employed in February 1988 as a catering attendant and his employment was under s82AC of the Public Service Act 1922 ("the Public Service Act") in that he was employed as a continuing employee. By operation of s76S of the Public Service Act, after one year's service, Mr Simmons became an officer for the purposes of Div8C of that Act.

Within that Division is found s76V which provides:

"(1)Subject to subsection (2), an officer shall, by force of this subsection, be retired from the Service upon attaining the maximum retiring age.

(2)Where the relevant Secretary is of the opinion that it is desirable, in the interests of the Commonwealth, that an officer who has not attained the maximum retiring age should continue, after attaining that age, in employment, and the officer is able and willing so to continue, the relevant Secretary may determine, in writing, that subsection (1) does not apply to the officer.

(3)The relevant Secretary may, at the time of making, or at any time after making, a determination under subsection (2) in respect of an officer, determine that the officer shall retire from the Service upon attaining a specified age or upon the expiration of a specified period and, where such a determination is made, the relevant Secretary may, at any time before the officer attains that age or before the expiration of the period so determined, vary the determination.

(4)In this section:

"maximum retiring age", in relation to an officer, means:

(a)if the officer is included in a class of officers in respect of whom a maximum retiring age, being an age less than 65 years, is fixed by the regulations - the age so fixed; or

(b)in the case of any other officer - the age of 65 years;

"officer" includes:

(a)an officer whose appointment to the Service on probation has not been confirmed; and

(b)a short-term employee, a fixed-term employee or an overseas employee."

Mr Simmons was born on 17 June 1929, and accordingly reached the maximum retiring age, which for present purposes is 65, in June 1994. The respondent submits in support of its notice of motion that in these circumstances the employment of Mr Simmons was terminated by operation of s76V and not by any act of the employer. The respondent further submits that s170EA concerns termination of employment by the employer and not situations such as the present where the termination occurs by operation of an Act of parliament.

Reference was made to the Termination of Employment Convention 1982 which concerns termination of employment at the initiative of the employer. The Convention appears as Sch10 to the Act. In particular, reference was made to article 3 of that Convention which defines, for the purposes of the Convention, "termination" and "termination of employment" as meaning termination of employment at the initiative of the employer. Having regard to the provisions of s170CB of the Act, it is clear that the provisions concerning unfair or unlawful termination are directed to termination by the employer: see Siagian v Sanel Pty Ltd, 27 May 1994, unreported decision of Wilcox CJ and Association of Professional Engineers, Scientists and Managers Australia and Stephenson v Skilled Engineering Pty Ltd, 10 June 1994, unreported decision of Gray J.

In my view, the termination of the employment of Mr Simmons was not termination at the initiative of the employer but rather, as is submitted by the respondent, termination resulting from the operation of an Act of parliament.  Accordingly, the application to the Court is one that does not concern termination of the type to which the relevant legislative provisions are directed.

The applicant sought to rely upon the provisions of s76V(2), which enables the effect of s76V(1) to be modified by the Secretary forming an opinion that it is desirable in the interests of the Commonwealth that an officer whose employment would otherwise be terminated by s76V(1), to continue in employment.  However, in my view, the existence of this discretion does not alter the ordinary operation of s76V(1).  As it applied in this case, it is clear it applied without qualification.  Accordingly s76V(2) has no relevance.

I am satisfied that the respondent in the proceedings has made out a case that the application should be stayed or dismissed and the appropriate order is, in my view, that it should be dismissed.  Accordingly, I dismiss the application.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.

Associate:

Date:16 August 1994

Representative of

the Applicant: Mr Slevin

Industrial Advocate

Australian Liquor, Hospitality and Miscellaneous Workers Union

Solicitor for

the Respondent:           Mr Markus

Australian Government Solicitor

Date of hearing:          12 August 1994

Date of judgment:         12 August 1994