Australian Municipal Administrative Clerical and Services Union v Gold Coast Community Options Association Incorporated

[1994] IRCA 22

IN THE INDUSTRIAL RELATIONS     )   
COURT OF AUSTRALIA             )    No. QI 109 of 1994
QUEENSLAND DISTRICT REGISTRY    )

BETWEEN:       AUSTRALIAN MUNICIPAL, ADMINISTRATIVE
  CLERICAL AND SERVICES UNION
  First Applicant

ELLYSON WILSHERE
  Second Applicant

AND:           GOLD COAST COMMUNITY OPTIONS    ASSOCIATION INCORPORATED
  Respondent

CORAM:     Spender J
PLACE:     Brisbane
DATE: 26 August 1994

REASONS FOR JUDGMENT

This is an application under s. 170EA of the Industrial Relations Act 1988 ('the Commonwealth Act') concerning the purported termination of the employment of the second applicant by the respondent. The application raises the question whether the Court, pursuant to s. 170EB must decline to consider or determine the application. Section 170EB provides:

"The Court must decline to consider or determine an application under section 170EA if satisfied that there is available to the employee by or on whose behalf the application was made an adequate alternative remedy, in respect of the termination, under existing machinery that satisfies the requirements of the Termination of Employment Convention. "

By an application dated 15 April 1994 the applicants have sought, inter alia, an order declaring that the termination of the second applicant, Ellyson Wilshere, to have contravened Division 3 of Part VIA of the Commonwaelth Act and an order requiring the respondent to reinstate her to her former position as co-ordinator of the Gold Coast Home and Community Care Program on the terms and conditions applying to that position during the period 26 July 1993 to 31 March 1994 or, in the alternative, an order that the respondent pay compensation in an amount of $80,000 to her.

So far as is presently relevant, it is admitted by the parties that Ms Wilshere commenced employment with the Queensland Council of Social Services as its co-ordinator of Gold Coast Community Options project on or about 4 June 1991.  On about 19 November 1992 the Gold Coast Community Options project was transferred from the control of the Queensland Council of Social Services to the respondent, the Gold Coast Community Options Association Incorporated, which became the employer of Ms Wilshere.  As a result of that transfer, the respondent assumed responsibility for the entitlements, such as annual leave and sick leave, accruing to Ms Wilshere under her contract of employment with the Queensland Council for Social Services. 

The work performed by Ms Wilshere during the course of her employment with the Queensland Council of Social Services and the respondent is not the subject of an award of either the Australian Industrial Relations Commission or the Queensland Industrial Relations Commission.

There were various negotiations concerning the employment of Ms Wilshere by the respondent in late 1993 and early 1994 which lead to the present application, but it is unnecessary for present purposes to canvass those dealings. 

In its amended response filed 17 June 1994, the respondent asserted:

"[T]he Second Applicant commenced proceedings in the Queensland Industrial Relations Commission and has not alleged in her claim herein nor set up a claim that there is no adequate alternative remedy in circumstances where there is an adequate alternative remedy...under Industrial Relations Act (Queensland) 1990. "

Mr M. T. Treherne, who appeared for the respondent, successfully sought leave to amend that aspect of the respondent's response by withdrawing the assertion that there was an "adequate alternative remedy" under the Industrial Relations Act (Qld) 1990 ('the Queensland Act').

It was submitted by Mr Horneman-Wren of counsel on behalf of the applicants that the issue of whether an adequate alternative remedy exists should only be considered by the Court if it is raised by a party to the proceedings, and that there is no requirement placed upon the Court to consider the issue in every application made to it.  It was submitted that where that issue is not raised by the parties, the court is able to proceed to consider and determine the application, and where the issue of an adequate alternative remedy is not raised by any of them, the Court should proceed to consider and determine the application.  These submissions, it is said, flow from the words "if satisfied" in s. 170EB of the Act.

I do not accept these submissions.

Mr G. C. Martin of counsel sought leave to appear on behalf of Her Majesty the Queen in right of the State of Queensland and to intervene in that behalf to argue the question of jurisdiction, or more correctly, the question of whether an adequate alterntive remedy within the meaning of s. 170EB was available to the second applicant.

Section 470 of the Act provides:

"If the Court is of the opinion that an organisation, person or body should be heard in a proceeding before the Court in a matter arising under this Act, the Court may grant leave to the organisation, person or body to intervene in the proceeding. "

The Court granted leave to intervene.  In my opinion, the question is one of importance to, inter alia, the Crown in right of the State of Queensland, because one of the questions is whether the remedy provided in respect of "dismissal" provided under the Queensland Act as a result of the amendments introduced by the Industrial Relations Reform Act 1994 (Qld) is an adequate alternative remedy in the context of s. 170EB of the Act.

The circumstances here are much different from those considered by Wilcox J in Gas Industries Salaried Officers Federation v. M. O. A. (1989) 29 I.R. 48, particularly at 56-57. His Honour came to the view that there was a strong case for the exercise of the discretion to grant leave to intervene to the employer in that case. The circumstances of the present case seem to me even stronger.

The submission on behalf of the applicant is that the exercise of jurisdiction by this court can be determined by whether any party wishes to assert that an alternative remedy in respect of determination is available elsewhere under existing machinery that satisfies the requirements of the Termination of Employment Convention; in the absence of any such assertion, the court would exercise the jurisdiction conferred by Subdivision C of Division 3 of Part VIA of the Act.

The section is couched in imperative terms, unlike many provisions conferring a discretion on the court where alternative remedies are possible. Section 170EB uses the word "must". The submission on behalf of the applicants is that that imperative duty only arises should any party choose to assert that an adequate alternative remedy exists, it being said that it is only after the court makes enquiry into that assertion and reaches satisfaction as to the availability of an adequate alternative remedy that it must then decline to consider or determine an application under s. 170EA.

In my opinion, the provisions of the statute law of Queensland are not a species of foreign law to be proved as a matter of fact or to be invoked only by a specific assertion concerning their applicability and content.

In the view I take of s. 170EB, the Commonwealth Parliament has expressed an intention that if under the statutory regime of the various states dealing with questions of termination and reinstatement, an adequate alternative remedy in respect of the termination under existing machinery that satisfies the requirements of the Termination of Employment Convention exists, then an applicant is to seek that remedy in preference to having the question be the subject of determination by the Industrial Relations Court. The intention of Parliament, in short, is that if there is an adequate alternative remedy under state legislation, then this Court should not deal with the matter.

I turn now to consider whether the provisions in relation to termination of employment afforded under the Queensland Act answers the description in s. 170EB of the Act.

Division 5 of the Queensland Act is substantially similar in result to the provisions contained in Subdivision C of Division 3 of Part VIA of the Act. There are some differences. One is in terminology, where the Commonwealth Act refers to the end of employment as "termination", while the Queensland Act refers to it as "dismissal". A further difference is that the Commonwealth Act provides for an application to be made within fourteen days, while the Queensland Act provides for a period of twenty-one days. Both provisions provide that extensions may be made before or after the expiration of the time specified. Section 170CC of the Commonwealth Act provides that regulations may exclude employees as permitted by the Convention, which has been done in Regulation 30B; the equivalent Queensland provision is to be found in the Queensland Act itself at s. 290.

The second applicant does not fall within exclusions under either body of legislation.

The object of Division 3 of the Commonwealth Act is set out in s. 170CA, being to give effect, or give further effect, to the Termination of Employment Convention ('the Convention') and the Termination of Employment Recommendation 1982 ('the Recommendation'), which are schedules 10 and 11 to the Commonwealth Act.

Division 5 of the Queensland Act has objects as set out in s. 288 of that Act, which include the object of giving effect to the Convention and the Recommendation.

Section 297 of the Queensland Act and s. 170EE of the Commonwealth Act prescribe in terms that there is a power to make an order putting the employee in the same position as if there had not been a dismissal or termination. The remedies the Industrial Relations Court was able grant pursuant to s. 170EE, as that section was prior to its replacement by a new section effected by the Industrial Relations Amendment Act No. 2 of 1994 were very similar to those availble to the Queensland Industrial Commission ('the Queensland Commission'). However, the result of the amendments to the Commonwealth Act is that there is a cap on the amount of compensation that might be ordered to an employee by the Industrial Relations Court. Such a limitation is not presently imposed on the Queensland Commission by the Queensland Act. In addition, the amendments to the Commonwealth Act create a restriction on access by certain non-award employees to the Industrial Relations Court (s. 170CD(1)). This restriction does not presently apply to the Queensland Commission under the Queensland Act. Insofar as the result of these measures is that the Queensland Act provides a wider avenue of relief and a greater measure of compensation, it is clear that the Queensland Act offers a remedy at the very least as adequate as that provided under the Commonwealth Act.

The submission on behalf of the applicants is that the question of whether there is an adequate alternative remedy is not to be considered by reference only to the 'relief' provided under the alternative schemes. Rather, it was submitted, it is necessary also to consider the procedures and processes by which any such remedies are obtained and/or enforced. Reliance is placed on the reference in s. 170EB to the requirement "under existing machinery" and to para. 2(b) of Article 9 of the Convention:

"In order for the worker not to have to bear alone the burden of proving that the termination was not justified, the methods of implementation referred to in Article 1 of this Convention shall provide for one or other or both of the following possibilities:

(a)...

(b)the bodies referred to in Article 8 of this Convention shall be empowered to reach a conclusion on the reason for the termination having regard to the evidence provided by the parties and according to the procedures provided for by national law and practice. "

Article 1 provides:

"The provisions of this Convention shall, in so far as they are not otherwise made effective by means of collective agreements, arbitration awards or court decisions or in such other manner as may be consistent with national practice, be given effect by laws or regulations. "

It was submitted on behalf of the applicants that when one enquires into the procedures and processes applicable under the Queensland Act, there are significant differences leading to the conclusion that an adequate alternative remedy, in the wider sense, does not exist.

Section 92(1) of the Queensland Act provides that the Queensland Commission is not bound by the rules or practices of courts as to evidence or procedure.  Similarly, by s. 92(2) of the Queensland Act, the Queensland Commission is governed in its decisions by "equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms...".

These provisions may be compared with s. 110(2) of the Commonwealth Act, which in relation to the procedure in proceedings before the Australian Industrial Relations Commission ('the Commonwealth Commission'), provides that the Commonwealth Commission is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it considers just; and requires that the Commission shall act according to equity, good conscience and substantial merits of the case without regard to technicalities and legal forms. That provision does not apply to proceedings in the Industrial Relations Court, although O. 33 r. 3 of the Industrial Relations Court Rules ('the Rules') provides that the court may at any stage in the proceedings dispense with compliance with the rules of evidence in circumstances there set out.

The submission on behalf of the applicants is that the provisions contained in s. 92 of the Queensland Act means that the procedures under which applications in the Queensland Commission do not conform with the "procedures provided for by national law and practice".  It was said that those procedures must in Australia include an observance of the rules of evidence.  In my view the reference to national law and practice is a reference to the municipal law of the country, and is not seeking to draw a distinction between Commonwealth law and State law.

It was further submitted that, where the onus rests with the employer to establish that the termination was justified, there is an advantage to an employer proceeding in the Queensland Commission because the employer is able to discharge that onus in the Queensland Commission without being constrained in its proof by the rules of evidence.  By contrast, an employer proceeding in the Industrial Relations Court  is hampered by the necessity to discharge the onus in accordance with the rules of evidence.  It was further submitted on behalf of the applicants that other procedural matters which are the subject of the Rules, such as pleadings  (O. 11), discovery (O. 15 and 15A), and interrogatories (O.16) are provided for under the Rules but are not available to an applicant before the Queensland Commission. 

Further reliance is placed on the differences in the appeal provisions as they apply under the Commonwealth Act and the Queensland Act.

Pursuant to s. 118(2) of the Queensland Act, an applicant who is aggrieved by a decision of the Queensland Commission can appeal as of right to the Industrial Court only on the grounds of error of law, or of excess, or want of, jurisdiction.  In other circumstances, an aggrieved applicant could appeal to the Full Bench of the Commission only with the leave of the President, and that leave is only to be granted in limited circumstances which, generally speaking, would not apply.  Under s. 120(2) of the Queensland Act, leave is not to be granted unless the President is of the opinion that the matter is of such importance that an appeal should be brought in the public interest. 

It was submitted that the right of appeal of an aggrieved applicant to the Industrial Relations Court is a broader right than that given to an aggrieved applicant under the Queensland Act. The effect of s. 420 of the Commonwealth Act is that an applicant has an appeal as of right from a final judgment (see also ss. 425 and 426). Furthermore, an appeal may lie by leave to the High Court from a judgment of the Full Court: s 432(2).

A further point of difference relied on by the applicants concerns the question of legal representation. Under the Queensland Act, by s. 105(d)(i), the parties to an application are able to have legal representation only with the consent of all parties to the proceedings. Under the Commonwealth Act, an applicant is entitled to be represented by legally qualified persons as of right: s. 469(3).

Finally, there is no requirement under the Queensland Act for an industrial commissioner to be legally qualified: see s. 19(2). This is contrasted in the applicants' submission, with the requirement that a person can be appointed as a judge of the Industrial Relations Court only if the person is or has been a judge of a prescribed court or has been enrolled for at least five years as a legal practitioner of the High Court or of the Supreme Court of a state or territory: s. 362(3).

Some of the matters relied on by Mr Horneman-Wren are important.  A consequence of the requirement that legal representation is permitted before the State Commission only by consent of all the parties is that rather than achieving the objective of simplicity and cheapness by the exclusion of lawyers, there has been created an ersatz profession of industrial advocates with no demonstrated advantages to the litigant.  The requirement seems wholly at odds with the competitive and cost efficient environment thought desirable in our legal system.  It might seriously be questioned whether that requirement serves any useful social purpose.

However, in my view, the submissions made on behalf of the applicants pointing to the differences in relation to procedures and processes, appeal rights, and composition of the respective bodies confuses remedy with machinery. Section 170EB requires that the court be satisfied that there is an adequate alternative remedy to that provided under the Commonwealth Act. That remedy has to be under machinery which complies with the Convention but it does not necessarily require it to be a remedy which is arrived at or granted under machinery which is the same as that which the Commonwealth Act provides.

Concerning representation, Article 8 of the Convention provides:

"A worker who considers that his employment has been unjustifiably terminated shall be entitled to appeal against that termination to an impartial body. "

And the article then continues by providing examples:

"Such as a court, labour tribunal, arbitration committee or arbitrator."

The only requirement dealing with representation or something akin to representation appears in para. 9 of the Recommendation, which paragraph provides:

"A worker should be entitled to be assisted by another person when defending himself, in accordance with Article 7 of the Termination of Employment Convention 1982 against allegations regarding his conduct or performance liable to result in the termination of his employment;  this right may be specified by the methods of implementation referred to in paragraph 1 of this Recommendation. "

Paragraph 1 of the Recommendation provides:

"The provisions of this Recommendation may be applied by national laws or regulations, collective agreements, work rules, arbitration awards or court decisions or in such other manner consistent with national practice as may be appropriate under national conditions. "

There is, in my opinion, no requirement "in the machinery" arising from the Convention that "existing  machinery" meet any particular requirement with respect to rules of evidence, procedural matters, appeals or legal representation.  What the Convention does envisage is an impartial body hearing an application and an entitlement in the worker to be assisted by another person when defending himself against allegations regarding his conduct or performance liable to result in the termination of his employment.

In my opinion, if the remedies which the Queensland Commission is able to provide are adequate having regard to the remedies which the Industrial Relations Court is able to provide, which is clearly the case, then the further requirement is simply that the machinery set up by the State of Queensland has to comply with the Convention.  In my view, it does.

As a consequence, the remedies provided under the Queensland Act, in the case of a person who is not subject to a federal award, answers the description of s. 170EB of the Act, namely, an adequate alternative remedy available to the applicant in respect of the termination under existing machinery that satisfies the requirements of the Convention.

The qualification to which I have referred, may arise.  Moynihan P, President of the Queensland Industrial Court, having determined in Dowling v. CSR Panels 46 IR 16 that the Queensland Commission did not have power in respect of persons who had been employed under federal awards where those awards dealt with questions arising out of termination of employment.

For the above reasons, the Court declines to consider application No. QI 109 of 1994. 

I certify that this and the  preceding fifteen (15) pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice Spender.

Associate

Date: 26 August 1994

Counsel for the applicant:     Mr S. Horneman-Wren
instructed by:                 Peter Channell & associates

Solicitor for the

respondent:Mr A. Treherne of Primrose Cooper Cronin Rudkin

Counsel for the intervener:     Mr G. Martin

instructed by:                 K. M. O'Shea, Crown Solicitor

Date of Hearing:               28 June 1994

IN THE INDUSTRIAL RELATIONS               )   
COURT OF AUSTRALIA  )    No. QI 109 of 1994
QUEENSLAND DISTRICT REGISTRY              )

BETWEEN:   AUSTRALIAN MUNICIPAL, ADMINISTRATIVE
  CLERICAL AND SERVICES UNION
  First Applicant

ELLYSON WILSHERE
  Second Applicant

AND:GOLD COAST COMMUNITY OPTIONS

ASSOCIATION INCORPORATED

Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:                 Spender J

DATE OF ORDER:  26 August 1994

WHERE MADE:  Brisbane

THE COURT DECLARES:

.it is satisfied that the second applicant has available to her an adequate alternative remedy in respect of her termination under existing machinery that satisfies the requirements of the Convention.

THE COURT ORDERS:

.Application No. QI 109 of 1994 be dismissed.

Note: Settlement and entry of orders is dealt with in O. 36 of the Industrial Relations Court Rules.

C A T C H W O R D S

INDUSTRIAL LAW - Industrial Relations Court of Australia - jurisdiction - unfair dismissal - whether the Industrial Relations Act (Qld) 1990 provides an adequate alternative remedy for purposes of s. 170EB of Industrial Relations Act (Cth) 1988 - whether question of adequate alternative remedy ought to be considered by the court if not raised by the parties - relevance of application of rules of evidence - relevance of right to legal representation - relevance of appeal options.

Industrial Relations Act (Cth) 1988 ss. 170EA, 170EB, 170CA, 170CD, 170EE, 362, 420, 469.
Industrial Relations Act (Qld) 1990 ss. 19(2), 92, 105(d), 118(2), 120(2), 288, 290, 297.

Dowling v. CSR Panels 46 IR 16

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE CLERICAL AND SERVICES UNION & ANOR. V. GOLD COAST COMMUNITY OPTIONS ASSOCIATION INCORPORATED
No. QI 109 of 1994

SPENDER J
BRISBANE
26 AUGUST 1994