Jamie Allan Medhurst and Pallet Industries

[1994] IRCA 105

CATCHWORDS

INDUSTRIAL LAW - Termination of employment - Complaint of unlawful termination - Adequate alternative remedy - Tasmanian Industrial Commission - powers of Commission to hear and determine any matter arising from or relating to an industrial matter - hearings under section 29 Tasmanian Industrial Relations Act 1984 and conferences under section 30 not an adequate alternative remedy.

Industrial Relations Act 1988, (CTH) SS170EB, 170EE
Industrial Relations Act 1984 (Tasmania) SS29, 30

Gozzi, Newtown Timber and Hardware Pty Limited ex parte (Supreme Court of Tasmania) 25 October 1994.

Weily and Butling v Carbide International Pty Limited W.I. NOS124 and 125 13 July 1994

JAMIE ALLAN MEDHURST AND PALLET INDUSTRIES

No. TI 116/94

Before:           Ryan JR

Place:              Hobart

Date               31 October 1994

IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY  Matter No TI 116/94

B E T W E E N:    JAMIE ALLAN MEDHURST

AND:                   
  PALLET INDUSTRIES

COURT:           RYAN JR

PLACE:            HOBART

DATE:               31 OCTOBER 1994

I am not satisfied that the jurisdiction of the Tasmanian Industrial Commission to hear and determine any matter arising from or relating to an industrial matter and including the making of orders and declarations and the conduct of hearings and conferences for settling disputes, and hearing and determining appeals, constitute an adequate alternative remedy to those provided under division 3, Part VIA of the Commonwealth Industrial Relations Act 1988.

I concede immediately that the powers of enforcement of decisions of hearings under section 29 of the Tasmanian Industrial Relations Act 1984 and conferences under section 30 of that Act are very broad indeed but I am not satisfied that reinstatement and/or compensation to the extent available under section 29 and section 30 of the Tasmanian Act amount to an adequate alternative remedy to those provided under division 3, Part VIA of the Commonwealth Act.

I accept without question that the Tasmanian Supreme Court has recently ruled that compensation is available and has done so in the case of Gozzi, Newtown Timber and Hardware Pty Limited ex parte, a decision of Cox J, delivered on 25 October 1994 and I accept that the Tasmanian Industrial Commission may have so ruled on numerous occasions.  However, an application under section 29 has been held more than once to be not open to an individual.  In other words, section 29(1) limits those who may apply to the President for a hearing before the Commission to an organisation or a private employer.

An application which cannot be made by an individual is not an adequate alternative remedy to one which can be so made under the Commonwealth Act.  Furthermore, I do not consider that an application by any person to the President of the Tasmanian Industrial Commission for a conference under section 30 of the Tasmanian Act amounts to an adequate alternative remedy to a trial under division 3, Part VIA of the Commonwealth Act.  I concede that such a conference presided over by the President or a Commissioner may prevent or settle an industrial dispute and may in some circumstances lead to reinstatement, or indeed compensation, in respect of what may be held to be an unfair dismissal but I do not consider such a discretionary remedy and its existence an adequate alternative remedy to division 3, Part VIA of the Commonwealth Act.

I have taken into account what I might call the requirements of satisfaction as laid down by Keely J in the fairly recent case in this court, David Jackson Weily and Carbide International Pty Limited and Anthony Kenneth Butling and Carbide International Pty Limited, decisions of this court on 13 July 1994, and I believe decisions now reported in the 1994 Industrial Reports.

Because of what I have concluded, it is not necessary for me to determine whether or not the two-step process which may be required for enforcement of proceedings under section 29 or section 30 of the Tasmanian Act, amount to the kind of two-step process which was held by Keely J to be one which meant that the state remedy was not an adequate alternative.  It is not necessary for me to rule on that and I am relieved that is so because I do not know enough about it.

As far as I am concerned the effect is that what is an application to dismiss the original application for want of jurisdiction on the grounds of an adequate alternative remedy under section 170EB must be dismissed.

ORDER

I think the appropriate order of the court is that the court is not satisfied that there is available to the applicant under the Industrial relations Act 1984 Tasmania, as amended, an adequate alternative remedy in respect of his employment under existing machinery that satisfies the requirements of the termination of employment convention.

Settlement and entry should be dealt with in accordance with order 36 of the Industrial Relations Court Rules.

I certify that this and the preceding page are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.

Associate           :           J.S. Taylor
Date                  :           3 November 1994

Appearances:                 Mr McTaggart for the Applicant (Respondent in the Notice of Motion)

Messrs Fitzgerald and Gates for the Respondent (Applicant in the Notice of Motion)