Gutwein v Tasmanian Industrial Commission - [2021] TASSC 2

[2021] TASSC 2

COURT: SUPREME COURT OF TASMANIA

CITATION: Gutwein v Tasmanian Industrial Commission [2021] TASSC 2

PARTIES: THE HONOURABLE MR PETER GUTWEIN, MINISTER ADMINISTERING THE STATE
SERVICE ACT 2000

v
TASMANIAN INDUSTRIAL COMMISSION

FILE NO:  1246/2020
DELIVERED ON:  3 February 2021
DELIVERED AT:  Hobart
HEARING DATE:  15 September 2020
JUDGMENT OF:  Brett J

CATCHWORDS:

Industrial Law – Tasmania – Industrial Commission – Jurisdiction and powers – Industrial agreement during a relevant period – Industrial agreement operating retrospectively – Definition of "industrial matter" – Definition of "industrial dispute" – Whether the President of the Industrial Commission fell into jurisdictional error – No jurisdictional error.

Aust Dig Industrial Law [3380]

Industrial Law – Tasmania – Registered agreements – Agreement capable of providing benefits retrospectively for workers who are employed during a period prior to registration.

Industrial Relations Act1984 (Tas), ss 3, 19, 29, 31, 55, 56, 58.
Supreme Court Rules 2000 (Tas), r 624.
Bennett v Minister Administering the State Service Act 2000 [2009] TASSC 95; Kirk v Industrial Court (NSW) [2010] HCA 1, 239 CLR 531; Newtown Timber and Hardware Pty Ltd v Gurr (1995) 5 Tas R 71; R v Staples; Ex parte Australian Telecommunications Commission (1980) 143 CLR 614; R v Tasmanian Industrial Commission [2015] TASSC 54; R v Tasmanian Industrial Commission; ex parte Farrell [2002] TASSC 28; Re Australasian Meat Industry Employees' Union; Ex parte Aberdeen Beef Co Pty Ltd (1993) 176 CLR 154; Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656; Slonim v Fellows (1984) 154 CLR 505; Tasman Quest Pty Ltd v Evans [2003] TASSC 110, 13 Tas R 16, referred to.
Aust Dig Industrial Law [3391]

REPRESENTATION:

Counsel:
             Appellant:  S Kay
             Intervenor:  K Cuthbertson
Solicitors:
             Appellant:  Officer of the Solicitor-General
             Intervenor:  Crown Solicitor

Judgment Number: [2021] TASSC 2
Number of paragraphs: 50

Serial No 2/2021
File No 1246/2020

THE HONOURABLE MR PETER GUTWEIN, MINISTER ADMINISTERING THE STATE SERVICE ACT 2000 v TASMANIAN INDUSTRIAL COMMISSION

REASONS FOR JUDGMENT BRETT J

3 February 2021

The applicant seeks relief similar to certiorari in respect of a determination made by the President of the Tasmanian Industrial Commission (the Commission), Mr D Barclay, on 5 May 2020. The determination related to whether certain former employees of the State are entitled to benefits pursuant to an industrial agreement which had been entered into between the applicant, in his capacity as the Minister Administering the State Service Act 2000, and the Australian Workers' Union, Tasmania Branch (the Union) on 12 August 2019. The agreement was approved by the Commission in accordance with s 55 of the Industrial Relations Act 1984 (the Act) on 19 August 2019. However, it purported to apply "with effect from 1 July 2018" and "remain in force until 30 June 2019". In other words, it purported to operate retrospectively to its formation and approval. Its purpose was to provide for a salary increase for employees covered by the agreement during the relevant period. In practical terms, it meant that those workers would receive back pay to cover the retrospective increase.
The impugned determination was made by the President after the Union had made application, pursuant to s 29 of the Act, for a hearing in respect of an industrial dispute. The dispute concerned the question of whether a group of employees who were employed by the State between December 2018 and May 2019, were entitled to the increased wages under the agreement. The employees had been employed on fixed term contracts as firefighters with the Parks and Wildlife Service, but their employment had ended by the time the agreement was made. They had been employed to fight the bushfires which affected the State during the said period.
The applicant argues that the Commission did not have jurisdiction to determine the entitlement of those workers pursuant to the industrial agreement. The argument is based on the following propositions:
(a)The jurisdiction of the Commission was limited to hearing and determining an industrial dispute, which in turn depended on the dispute being in relation to an industrial matter. By s 3 of the Act, an industrial matter is defined to mean "any matter pertaining to the relations of employers and employees". It is argued that this dispute does not fall within that definition because it relates to the entitlements of former employees, and a former employee is not an "employee" for the purpose of the said definition. (Ground 1 of the application).
(b)Further, the President has made errors of law, amounting to jurisdictional error, by misconstruing the scope, operation and effect of the agreement, particularly having regard to relevant provisions of the Act. It is argued that the agreement is incapable of applying to workers whose employment had ceased as at the date of approval of the agreement. This again is because an industrial agreement can only relate to an "industrial matter", as defined by s 3. Hence, it is argued, it can only relate to persons who are employed as at the date of approval of the agreement and there is nothing else in the Act which permits an industrial agreement to have effect in respect of former employees. A further aspect of this argument is that the agreement, by its terms, should be construed as relating only to current employees. (Grounds 2, 3 and 4).
A critical consideration with respect to both arguments is the meaning and application of the definition of "industrial matter" in s 3 of the Act.
The proceedings were commenced by originating application on 27 May 2020. A general order to show cause was made in accordance with r 624 of the Supreme Court Rules 2000 on 3 June 2020. The respondent has filed a notice of submission, and the Union has declined to participate in the proceedings. However, the Attorney-General has, on behalf of the Crown, intervened in these proceedings pursuant to s 16 of the Crown Proceedings Act 1993. The Attorney was represented by counsel on the hearing of this matter and has made submissions in contradiction to those made by the applicant. The Court acknowledges the Attorney's action in this regard and considers that the decision to intervene, so as to provide a contradictor, was in the interests of justice.

Procedural and factual background

The agreement in question was entered into by the applicant and the Union on 12 August 2019. It is entitled the "AWU Public Sector Union Wages Agreement 2018". Some important provisions of the agreement are as follows:
·     Clause 4 provides that the agreement is made "in respect of employees covered by the AWU (Tasmanian State Sector) Award". Clause 5 provides that the parties will not, during the life of the agreement, retire from other specified agreements. Clause 6 is headed "Date and Period of Operation". It provides that the agreement "applies with effect from 1 July 2018 and will remain in force until 30 June 2019".
·     The agreement provides for the following payments:
oA salary increase of 2.1% per annum with effect from the first full pay period commencing on or after 1 December 2018.
oA further salary increase of 2.5% per annum with effect from the first full pay period commencing on or after the date of registration.
oA one-off payment made to employees, calculated in accordance with the terms of the agreement, following registration of the agreement.
·     The parties undertake that for the period of the operation of the agreement, they will not initiate any additional claims regarding salary or conditions of employment.
It is clear from the calculation provisions in respect of the one-off payment, that the agreement provides for part-time casual workers to receive the increased wages and benefits calculated on a pro-rata basis.
It is uncontroversial that the agreement is an industrial agreement within the meaning of the Act. Such agreements are provided for in Part IV. Section 55(1) provides that an employee of an organisation may enter into an industrial agreement with an employer or organisation, or any employer or group of employers with respect to an industrial matter. The section goes on to provide that the agreement may be filed with the Registrar who is then to refer the agreement to the President, who is to refer the agreement to a Commissioner for a hearing "into the matter". By s 55(4), after conducting a hearing, a Commissioner may approve or refuse to approve the agreement. The section prescribes various matters that must be taken into account by the Commission before it approves the agreement. Section 55(6) provides that the agreement has effect from the date it is approved by the Commission or such other date as agreed by the parties and approved by the Commission. Section 56 provides that the Registrar shall register the industrial agreement that is approved by the Commission, and the agreement has no effect unless it is registered. I shall return to these and other relevant provisions concerning the industrial agreement later in these reasons.
On 12 August 2019, the same day on which the agreement was signed by the parties, the applicant lodged the agreement with the Registrar pursuant to the said provisions. The hearing was conducted by President Barclay on 14 August 2019. The President approved the agreement on 19 August 2019, and on that day referred it to the Registrar for registration. It is uncontroversial that the agreement was subsequently registered in accordance with the relevant provisions.
The President published written reasons for approving the agreement. He noted that the agreement related to a period entirely in the past and observed that he would normally take "some persuading to approve an agreement which has essentially no operative effect for the future". However, he discussed the "protracted negotiations" including industrial disputation which had led to the agreement, and noted that it provided for back pay. He noted that negotiations were continuing into the future, and that the agreement would not alter any other conditions of employment. In conclusion, he was satisfied that the agreement complied with the requirements of the Act and, in particular, did not disadvantage the employees concerned, and, further, that there was genuine consent to it. Hence, he decided to approve it.
Evidence placed before this Court in the form of an affidavit established that by November 2019, a dispute had arisen between the Union and the applicant in relation to the question of whether the back pay provided by the agreement was payable to persons who had been employed during the operative period of the agreement, but were no longer employed when the agreement was made and approved. On 2 December 2019, the Union lodged an application with the Commission, seeking a hearing in respect of an industrial dispute pursuant to s 29(1) of the Act. That section provides for an application to the President for a hearing before a Commissioner in respect of an industrial dispute. The application noted that the "matter pertains to the non-payment of back pay of salaries to employees covered by" the agreement. It also said:
"In summary the AWU believes that employees employed between 1^st July 2018 and 30^th June 2019 should be afforded the rates of salaries as set out in the [agreement] including those employees who were employed partially or some periods of the period of the agreement had effect and was in force."
The remedy sought was an order that the "Department provide back pay in accordance with the salary rates in the agreement for all service periods during which employees of the Department were employed between 1^st July 2018 and 30 June 2019".
On 5 December 2019, the associate to the President forwarded an email to the parties, noting that the President had allocated the matter to himself. The email went on to say that:
"The dispute is a legal question as follows:
Are employees who are employed, but who are no longer employed, entitled to the benefits of an industrial instrument which came into force after the date the employees ceased to be employed but which industrial agreement retrospectively covers the period during which they were employed.
It appears to the President that if he were provided with particulars of the affected employees, the dates they were employed, and the classifications in which they were employed, he would have a sufficient factual matrix to determine the matter on the papers with the assistance of written submissions."
The email went on to propose directions for provision of the said particulars, together with the filing of written submissions by each party, and the determination of the matter on the papers. The parties were asked to advise their attitude to what had been proposed in the email by a specified date.
By email dated 9 December 2019, the applicant suggested an alternative question in respect of the dispute which was worded as follows:
"Are those persons who were employed by the State up to the 18^th of August 2019 but not thereafter, entitled to the benefits conferred by the [agreement] which is an industrial agreement approved by the Tasmanian Industrial Commission on 19^th August 2019, pursuant to section 55(4) of the [Act]."
The applicant otherwise accepted the proposal that the matter be determined on the papers in accordance with the directions proposed by the President.
On 12 December 2019, the President's associate advised the parties that the President would answer a "revised question" which was in terms substantially the same as that suggested by the applicant. Formal directions in accordance with the earlier email were issued to the parties. The parties then made written submissions in accordance with those directions.
The President handed down a written decision on 5 May 2020. In the decision, the President noted that the dispute was in respect of "thirteen former employees of the Parks and Wildlife Service ... who were employed, either on a permanent basis, or pursuant to a fixed term instrument". He noted that all of the affected employees had ceased to be employed prior to the approval of the industrial agreement on 19 August 2019. He noted that the applicant had refused to pay these employees back pay pursuant to the agreement "on the basis that they were not employees at the time the agreement was approved, and therefore the wages increase did not apply to them". After recording and discussing the competing contentions of the parties, the President concluded that the agreement was intended to have retrospective effect, and that by virtue of s 58, it related to any employee who at the time the agreement is in force was employed at a work site or place to which the agreement applied. The President considered that the agreement was in force during its operative period, 1 July 2018 to 30 June 2019, and hence it applied to the affected employees. He did not consider that the agreement should be construed as applying only to current employees. He observed that, once registered, the agreement applied to all employees who were defined by s 58, and accordingly it applied to the affected employees. He finalised the decision in the following way:
"Outcome
[25]I determine that the affected employees are covered by and have the benefit of the agreement.
[26]The question is answered 'Yes'."

Ground 1 - The President's jurisdiction to determine the dispute

The grant of certiorari is available to remedy jurisdictional error by a decision-maker. The primary assertion of the applicant is that the Commission did not have jurisdiction to hear or exercise any power in respect of the matter in dispute, as defined by the question framed by the Commission. There is no question that, as a creature of statute, the Commission was not authorised to exercise power other than in accordance with that conferred by the relevant provisions of the Act: see Kirk v Industrial Court (NSW) [2010] HCA 1, 239 CLR 531.
The jurisdiction of the Commission is prescribed by s 19. Section 19(1) provides that "Subject to this Act, the Commission has jurisdiction to hear and determine any matter arising from, or relating to, an industrial matter". Section 19(2)(c) provides that for the purposes of subs (1), the Commission may "conduct hearings for settling industrial disputes". The requirement that the exercise of jurisdiction be subject to the Act, means that it will only arise where it has been properly invoked under an appropriate provision of the Act: R v Tasmanian Industrial Commission; ex parte Farrell [2002] TASSC 28. By s 29(1), an "organisation, employer, employee, or the Minister may apply to the President for a hearing before a Commissioner in respect of an industrial dispute". The Union is an "organisation" within the meaning of that provision.
Section 3 contains the following definitions:
"industrial dispute means a dispute in relation to an industrial matter –
(a)that has arisen; or
(b)that is likely to arise or is threatened or impending."
industrial matter means any matter pertaining to the relations of employers and employees and, without limiting the generality of the foregoing, includes –
(a) a matter relating to –
(i)    the mode, terms and conditions of employment; or
(ii)   the termination of employment of an employee or former employee; or
(iii) the reinstatement or re-employment of an employee or a former employee who has been unfairly dismissed; or
(iv) the payment of compensation to an employee or a former employee if the Commission determines that reinstatement or re-employment is impracticable; or
(v)   severance pay for an employee or a former employee whose employment is to be, or has been, terminated as a result of redundancy; or
(vi) a dispute under the Long Service Leave Act 1976 or the Long Service Leave (State Employees) Act 1994 relating to an entitlement to long service leave, or payment instead of any such leave, or the rate of ordinary pay at which any such leave or payment is to be paid in respect of an employee or former employee; or
(b)a breach of an award or a registered agreement –
but does not include a matter relating to –
...".
As already noted, the critical proposition upon which the applicant's assertion of jurisdictional error relies is that the words "pertaining to the relations of employers and employees" limits the definition of industrial matter in such a way that it will not include a matter which pertains to relations between an employer and a former employee, except where expressly provided by the definition. Accordingly, the applicant argues, the dispute, because it related to the entitlements of former employees, and did not fall within the express extension of the definition, was not capable of being characterised as an industrial dispute because it was not a dispute in relation to an industrial matter.
The applicant bases this argument on the Full Court decision of Newtown Timber and Hardware Pty Ltd v Gurr [1995] TASSC 79, 5 Tas R 71. That case was concerned with a claim by an individual former employee, who had been dismissed from his employment twelve months earlier. The former employee made an application to the President of the Commission under s 29(1) for a hearing in respect of a claim for relief which included a declaration that he had been unfairly dismissed, and sought the payment of monetary compensation. He did not seek an order reinstating the employment relationship. At that time, the definition of "industrial dispute" included one that related to the "engagement, dismissal or reinstatement of a particular employee". The Act has been subsequently amended to make it clear that the Commission has jurisdiction to deal with a claim for compensation arising from an unfair dismissal. Much of the reasoning of the Full Court related to the ambit of the specific provisions extending the definitions to a dismissed employee. Although these and other issues contributed to the determination of the case, it is a fair assessment of the separate judgments of each member of the Court, that each accepted that a claim of that nature did not fall within the general description of "any matter pertaining to the relations of employers and employees", for the purposes of the definition of "industrial matter". Underwood J (as he then was) summarised his view on this question as follows:
"[43] With respect to the present dispute it could not be said that it related to an industrial matter as defined by the Act, s3(1), for at the time it arose, the employer/employee relationship had been severed and therefore whatever was the nature of the dispute it did not pertain to the relationship of employer and employee."

A similar conclusion was reached by each other member of the Court.
A critical aspect of the reasoning of each member of the Court concerned the fact that the application was limited to a claim by an individual former employee for monetary compensation arising from his earlier dismissal, and that this was not caught by the specific provisions dealing with dismissed employees. All of the judges expressed the view that the dispute had no relevance to, or effect upon, existing employees.
It is apparent that the determination of this case was heavily reliant on its facts, and whether those facts properly permitted characterisation of the dispute as an industrial dispute as defined in s 3. This point was expressly made by Green CJ at [11]:
"Applying those parts of the definitions of 'industrial dispute' and 'industrial matter' which are relevant to the particular facts of this case, the question is whether the dispute in this case was a dispute relating to a matter pertaining to the relations of employers and employees or a dispute relating to the dismissal or reinstatement of a particular employee. Those questions must not be considered in the abstract but in the circumstances of the particular dispute in this particular case."
There is no question that the characterisation of a matter as industrial for the purposes of the relevant definition under s 3 is a question of fact, see Re Australasian Meat Industry Employees' Union; Ex parte Aberdeen Beef Co Pty Ltd (1993) 176 CLR 154. The determination of that fact is critical to the existence of the Commission's jurisdiction, and hence is properly described as a jurisdictional fact. The starting point for the determination of whether the definition applies must be the identification of the "matter", because it is "the matter" which must pertain "to the relations of employers and employees". In Newtown Timber (above), the "matter" was the payment of compensation arising subsequent to the termination of employment. In that respect, that case can be distinguished from the case before me. In this case, the "matter" can be identified as the payment of entitlements under an industrial agreement, for work performed while the relevant workers were employed by the State. Because the agreement as to the payment of these benefits is also related to the ongoing relationship between the State and its employees from time to time, this wider context can also be regarded as forming part of the "matter".
On the question of whether the matter so identified pertains "to the relations of employers and employees", it is clear that the payment of entitlements to these workers is not only of interest to them, but is also clearly a matter of current interest to the employees of the applicant as a collective, represented by the Union. This is confirmed by the President's findings concerning the protracted and conflictual negotiations which led to the agreement. It is also confirmed by the fact that the dispute arose between the Union and the State, and the application for a hearing under s 29(1) was made by the Union. Put simply, the current employees, represented by the Union, can reasonably be seen to have a legitimate interest in the matters dealt with by the agreement, including benefits payable to former employees for work done in the past, and in ensuring that their employer complies with such an agreement. This is also a critical point of distinction from the facts of Newtown Timber.
In my view, this reasoning is not inconsistent with the reasons of each member of the Court in Newtown Timber. Zeeman J implicitly noted the distinction between a matter affecting only an individual former employee on the one hand and employees as collective on the other hand, by referring to a passage from the joint judgment of Stephen, Mason and Wilson JJ in R v Staples; Ex parte Australian Telecommunications Commission (1980) 143 CLR 614, as follows:
"[27] An application of that reasoning suggests a conclusion that the present dispute is not a dispute which is an 'industrial dispute' within the primary defined meaning of that term because it does not concern an 'industrial matter' as that term is defined. It is not a matter which pertains to the relations of employers and employees because the first respondent is not, and was not at the time that he first made a demand which gave rise to a relevant dispute, an employee of the appellant. He ceased to have that status once he was dismissed (R v Portus; ex parte City of Perth (supra) per Stephen J at 329-330; R v Hamilton Knight; Ex parte The Commonwealth Steamship Owners Association [1952] HCA 38; (1952) 86 CLR 283 per McTiernan J at 301 and per Williams J at 305-306). The dispute does not have an 'industry character'. A reading of the definition of 'industrial matter' as a whole conveys to me that it only encompasses matters which have such a character.
[28] The judgment of the High Court in Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia [1987] HCA 63; (1987) 163 CLR 656 at 660-661 provides further support for the proposition that a dispute between a former employer and an ex-employee relating to the dismissal of the ex-employee does not concern the 'relations of employers and employees' (which is the term which appears in the definition of 'industrial matter' contained in the Act) although a dispute relating to such dismissal which is agitated by or on behalf of remaining employees who have an interest in it does concern such relations."
His Honour went on to observe that the dispute under consideration did not have an industry character and considered that the definition, when read as a whole, encompasses only matters which have that quality. His Honour went on to say that a judgment of the High Court in Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656:
"… provides further support for the proposition that a dispute between a former employer and an ex-employee relating to the dismissal of the ex-employee does not concern the 'relations of employers and employees' (which is the term which appears in the definition of 'industrial matter' contained in the Act) although a dispute relating to such dismissal which is agitated by or on behalf of remaining employees who have an interest in it does concern such relations."
Green CJ considered that the facts of the case could be distinguished from those dealt with by the High Court in Slonim v Fellows (1984) 154 CLR 505, on the basis that the dispute in that case was between a union and an employer, notwithstanding that it concerned the dismissal and reinstatement of a former employee. The question before the High Court was whether the dispute was an "industrial dispute" within the meaning of s 3(1) of the Industrial Relations Act 1979 (Vic), which defined same as "a dispute arising between an employer and one or more of his employees, or between an association of employees and one or more employers or associations of employers … and includes a threatened or impending or probable dispute". Gibbs CJ considered that the dispute was not one between an employer and one or more of his employees, because the dismissed employee was no longer an employee. However, his Honour concluded that there was an industrial dispute because it amounted to a dispute between the employer and an association of employees. An aspect of his Honour's reasoning which is of relevance to the case before me is that the general definition did "not encompass every dispute between the parties mentioned in the definition; the object and scope of the Act indicates that the definition refers only to a dispute which would be regarded as an industrial dispute in the ordinary meaning of those words". His Honour went on to say:
"An industrial dispute in the ordinary sense of the words is, in my opinion, for the reasons which I gave in Federated Clerks Union of Australia v. Victorian Employers' Federation, a dispute which arises out of or, in the course of, the relationship between employer and employee as such. It will not be enough if the connexion between the subject of the dispute and the relationship of employer and employee is remote or indirect."
His Honour expressed his ultimate conclusion as follows:
"In my opinion an industrial dispute in the ordinary sense had arisen in the present case. To come within the definition in s 3(1) of the Act the dispute must, however, be (amongst other things) between an employer and one or more of his employees or between an association of employees and one or more employers. In the present case, the applicant was no longer an employee, since her employment had been terminated. The dispute was, however, between an association of employees and an employer, and for the reasons that I have given I consider that it arose directly out of the relationship which had existed between a member of the association, as employee, and the employer, as employer. If it matters it was also a dispute of a kind which could cause industrial disharmony between the association and the employer."
Wilson J, with whom Mason and Deane JJ agreed, reached the same ultimate conclusion. At 515, his Honour said:
"Secondly, one must not overlook the concluding phrase of the definition of 'industrial dispute', namely, 'and includes a threatened or impending or probable dispute'. In a case where an association of employees is aggrieved by what it conceives to be the unfair dismissal of one of its members, and its overtures to the employer are rejected, there could very readily be perceived, if not an actual dispute, a threatened or impending or probable dispute. Such a dispute, if not open to be dealt with promptly in accordance with the Act as a dispute involving the dismissal and reinstatement of a particular employee, could readily escalate into a major confrontation between the association and the employer."
Further, his Honour observed that the definition included a dispute between a union and an employer and, in this context, asked the rhetorical question "… does it not follow that a union can bring about industrial dispute by taking up the cudgels for a dismissed employee?" His Honour answered this question in the affirmative, noting that the power of the primary decision-maker to deal with the dispute could arise from provisions which conferred specific power to deal with a dispute between such parties in respect of matters which included, "the rights and duties of employers and employees" and "the relations of employers and employees". Hence, it seems to have been accepted by his Honour that the dispute, albeit concerning a single former employee, when agitated by the Union concerned "the relations of employers and employees".
It is true that, in his reasons for judgment in Newtown Timber, Underwood J considered that Slonim v Fellows was of little value in the interpretation of the Tasmanian legislation because of drafting differences between the Tasmanian and Victorian legislation. In particular, his Honour noted that the Victorian Act was concerned with the identity of the parties to the dispute, whereas the Tasmanian legislation was concerned with its nature. This is correct, but his Honour was making these observations in the context of the facts of the case before him. I do not consider that his Honour's analysis of the reasoning in that case is inconsistent with the proposition that the "matter" for the purpose of the Tasmanian definition can include employment conditions relevant to a past period. With respect to his Honour's point that the definition in the Tasmanian legislation is not concerned with the parties to the dispute, it seems to me that it is impossible to exclude from consideration of the ambit of the words "any matter pertaining to the relations of employer and employee", the identity of the parties concerned with that matter. The passages from Slonim v Fellows to which I have referred, in my view, support the conclusion that a matter that might not fulfil the definition or have the requisite industry character if agitated by the individual parties concerned, may well do so if it affects and is agitated by current employees as a collective. This becomes particularly clear if, as in this case, the employment benefits relevant to the past period form part of the subject matter of ongoing disputation and consequent resolution within the context of wider and continuing industrial relations.
The applicant also relied upon the decision of Crawford J (as he then was) in Farrell (above). That case concerned a claim made by a former State employee in respect of the amount of entitlements payable upon termination under an instrument of appointment. The employment had ended two years before the application was made, upon expiration of the fixed term provided for in the said instrument. Although it was argued that the claim did not fall within the definition of "industrial matter" having regard to the reasoning in Newtown Timber, his Honour determined the matter on the basis that whether or not that was so, the applicant had "no right to invoke the Commission's jurisdiction under s 29(1)". This was because an application for a hearing under that provision could only be made by "an organisation, employer, employee or the Minister", and the individual applicant was no longer an employee. There was no other provision under the Act which authorised the claim. This case is also distinguishable on its facts from the case before me, because the application under s 29(1) in this case has been made by the Union. The reasoning of Crawford J does not otherwise assist the applicant's argument.
I am satisfied that the question of the employment benefits of employees during the past period as defined in the agreement, including in respect of those employed during that period but no longer employed at the date of the agreement, and the subsequent compliance by the employer with that agreement, was capable of being regarded as a "matter pertaining to the relations of employers and employees" for the purposes of the relevant definition. Hence, a dispute in relation to that matter was capable of being regarded as an "industrial dispute" as defined by s 3(1). The dispute had the necessary "industrial character" referred to by Zeeman J because it is of concern to the members of the Union generally and inextricably connected to the ongoing industrial relationship between the State and its employees. I am satisfied that such findings were implicit in the assumption of jurisdiction and conduct of the hearing by the learned President, and that he did not fall into error in so finding.

Grounds 2, 3 and 4 – The industrial agreement

As already noted, the further argument of the applicant is that the President fell into jurisdictional error by determining that the industrial agreement applied to the employees in question. The applicant's submission in this regard is that this agreement does not fall within the ambit of s 55(1) because, although it was entered into by the Union and the employer, it was not "with respect to an industrial matter", to the extent that it related to entitlements of persons who were no longer employed at the date of the approval and registration of the agreement. I have no doubt that if the applicant's proposition is correct, then the finding otherwise by the President would amount to jurisdictional error. However, the applicant's argument in this respect relies on the reasoning in Newtown Timber and is virtually identical to that already rejected by me. For the reasons already expressed, I reject this argument.
An important and related question is whether the Act contemplates and permits an industrial agreement which operates during a period preceding the date on which the agreement is approved by the Commission, with respect to the entitlements of employees employed during that period, but who are no longer employed at the date of approval. If so, then this legislative context will provide strong support for the conclusion I have already reached concerning the definition of an industrial matter. On the other hand, the applicant argues that the relevant provisions of the Act preclude the agreement from having effect in respect of such employees.
The starting point is that there is nothing in the Act which expressly precludes an industrial agreement from relating to a past period. However, various provisions of the Act which provide for how and when such an agreement will have effect require consideration. Section 55(6) provides that an industrial agreement has effect from the date it is approved or "such other date agreed by the parties to the agreement and approved by the Commission". Section 56(1) provides that the Registrar shall register an industrial agreement that is approved by the Commission. Section 56(4) provides that an industrial agreement has no effect unless it is registered. Section 58(1) provides that a registered industrial agreement extends to and is binding on:
"(b)the members for the time being of an employee organisation on whose behalf that organisation has entered into the agreement;
(c)every employee who is, at any time while the agreement is in force, employed at a worksite or place to which the agreement applies by an employer on whom the agreement is binding."
The applicant submits that these provisions and their interaction lead to the conclusion that an industrial agreement can only have legal effect prospectively from the date of registration. Accordingly, it is submitted, it can only create entitlements prospectively for employees employed as at that date, although those entitlements might be calculated by reference to an earlier period. I disagree with this submission. The provisions of s 55(6)(b) in particular, evince a legislative intention that an agreement will not necessarily have effect from the date it is made or approved. The parties can, subject to the Commission's approval, agree that the agreement will have effect from a date other than the date of approval. There is no express limitation as to when the other date will be, apart from the need for the Commission's approval. If it was the intention of the legislature to limit this provision to prospective dates, it would have been a simple matter to so provide expressly.
Further, the provisions of s 58(1) clearly and expressly contemplate that the agreement may operate, and confer benefits, in respect of employees employed at a time other than the date of approval or registration. The reference in s 58(1)(c) to "any time while the agreement is in force" can only be a reference to the period prescribed by the agreement, as to when it is to have effect. The applicant submitted that this period relates to the period after registration, because of the provisions of s 56(4). However, that provision could not be intended to prescribe a time period during which an agreement is to have effect, because that is already expressly dealt with by s 55(6). The purpose of s 56(4) is simply to make registration a condition of the agreement having legal effect, without any temporal operation or consequence.
In summary, the clear legislative scheme is that the parties will fix the period during which the agreement has effect, subject to the approval of the Commission, and if that is not done, then the agreement will have effect from the date of approval. However, the effect of the agreement during that period is subject to compliance with the requirements of approval and registration. There is no reason why the agreement cannot or should not have effect during the agreed period retrospectively upon registration. There is no risk that this interpretation of the intended operation of the Act will result in unreasonable or unjust consequences, because these provisions operate only in respect of matters of agreement.
Further, an interpretation which permits an industrial agreement to operate retrospectively is logically consistent with the nature of industrial relations. This case is a good example of the utility of such flexibility. The agreement constituted the resolution of a protracted course of negotiation and disputation. It is not surprising that such an agreement would deal with entitlements relating to work done in the past. It can be envisaged that this would not be an uncommon occurrence in industrial relations. By extension, it follows that any such agreement should be capable of applying to all employees affected during the relevant period. A provision which supports this approach is s 60, which provides that while an industrial agreement remains in force with respect to an employer, its provisions prevail over any provisions of the award that relates to the same subject matter and that applies to persons in his employment. It would lead to absurd and unreasonable consequences if the legislation was interpreted in a way that meant that an agreement that dealt with a past period, and hence took precedence over an award, could only benefit persons still employed at the time of the agreement. I also observe that an award may have effect retrospectively, provided the parties agree or the Commission is of the opinion there are special circumstances that make it fair and right to do so, see s 37(5). On the applicant's argument, an industrial agreement cannot operate in the same way. This interpretation is unreasonable and inconsistent with the obvious intended outcome that the parties may agree about retrospectivity of employment entitlements. There is, of course, no need to include a similar provision to s 37(5) in the provisions dealing with industrial agreements, because the issue would necessarily be the subject of agreement. The award provisions are dealing with an arbitrated outcome, and hence specific provisions dealing with retrospectivity are necessary.

It follows that the agreement, insofar as it extended to former employees, fell within the ambit of the provisions dealing with an industrial agreement. I am satisfied that it was "with respect to an industrial matter". It was within the jurisdiction of the President to approve the agreement in accordance with s 55(4).
The final argument of the applicant is that the President erred by construing the agreement as relating to persons no longer employed at the date of the agreement. In particular, it is submitted that cl 4 of the agreement, which states that the agreement is made "in respect of employees covered by the AWU (Tasmanian State Sector) Award", limits the operation of the agreement only to those employees covered by that award as at the date that the agreement was entered into by the parties.
The construction of the agreement involves a question of mixed fact and law. I do not think that it constituted the determination of a jurisdictional fact, but its resolution was clearly fundamental to the dispute which the President had been asked to determine. In any event, the President rejected the applicant's argument. He noted that "it was clear from the terms of the Agreement is that it was intended to have retrospective effect". He observed that there was no express or implied provision in the agreement which restricted its application only to employees of the State, so employed at the time that the agreement came into effect. The President's construction is patently correct. The intention of the parties can, in this case, be determined on the basis of the plain and ordinary meaning of the words of the agreement. It is unequivocally intended to confer benefits on all employees of the State covered by the relevant award during the period referred to in the agreement, without reference to the continuance of that employment relationship at any later point in time. There is no basis for any other construction. Clause 4 contains no temporal limitation or reference. It is true that the provisions of cl 6 must be read as subject to the reference to the date of registration in cl 7(ii). It may well be that the payments provided by cl 7(ii) will not apply to the workers subject to these proceedings, but this was not a matter argued before me. This reference does not affect the retrospective operation of the agreement flowing from cl 6. Specific calculations under the agreement will then be applied according to the terms of the relevant provision. The fact that the agreement may be intended to operate beyond 30 June 2019 does not affect the unequivocal provision that the agreement "applies with effect from 1 July 2018", and is consistent in any event with the provisions of s 55(7) of the Act.

Further questions

During the hearing, a question arose as to the nature of the President's determination, and in particular, the legal effect of his determination concerning the operation of the agreement, having regard to his failure to make a specific order consequent upon that determination. In my view, it is clear that the said determination was within the Commission's power, and hence binding on the parties to the dispute. As already noted, the Union was entitled to apply pursuant to s 29(1) for a hearing in respect of an industrial dispute. By s 31(1), the Commissioner presiding at the hearing under s 29 was empowered, if of the opinion "that anything should be required to be done, or that any action should be required to be taken, for the purpose of preventing or settling the industrial dispute in respect of which the hearing was convened (to) by order in writing, direct that that thing is to be done or that action is to be taken". The application made by the Union had sought an order that the Department provide back pay for the relevant employees in accordance with the agreement. This was the subject of the dispute. The President does not appear to have actually made the relevant order, but he has, as he was entitled to do, formed an opinion that the back pay should be paid in accordance with the agreement. Presumably, he took the view given that the parties had agreed to the matter proceeding by way of him answering the question, which involved forming the relevant opinion, that it was unnecessary for him to do anything further apart from answer the question and, in particular, that it was unnecessary to actually make the relevant order. However, having formed the requisite opinion, I can see no reason why the President would not have jurisdiction to make an order if that becomes necessary in order to resolve the dispute.
Finally, having regard to my conclusions in respect of the question of jurisdiction, it is unnecessary for me to consider whether the President's determination could or should have been the subject of an appeal to the Full Bench of the Commission under s 70 of the Act. There may be a question as to whether such an appeal would be competent, particularly given the failure of the President to make a formal order; see Bennett v Minister Administering the State Service Act 2000 [2009] TASSC 95. In any event, it seems clear that, notwithstanding the provisions of s 43 of the Judicial Review Act 2000, this Court retains jurisdiction to grant relief similar to certiorari on account of jurisdictional error; see Kirk v Industrial Court of New South Wales (above); Tasman Quest Pty Ltd v Evans [2003] TASSC 110, 13 Tas R 16; R v Tasmanian Industrial Commission [2015] TASSC 54. The issue of an alternative remedy would not necessarily deprive the Court of that remedy, but would certainly be relevant to whether the remedy should be granted in the exercise of discretion. However, as this question does not need to be answered and was not fully argued before me, I do not intend to comment further on it.

Conclusion

It follows from what I have said that I am satisfied that the President has not fallen into jurisdictional error as asserted in the grounds of the application. Accordingly, the application should be dismissed and the general order discharged. I so order.