Karabetsos v Connor Anderson International Pty Ltd

[2006] FMCA 1437

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KARABETSOS v CONNOR ANDERSON INTERNATIONAL PTY LTD [2006] FMCA 1437

INDUSTRIAL RELATIONS – Jurisdiction of the Federal Magistrates Court under the Workplace Relations Act 1996 (Cth) – whether the Court has jurisdiction in relation to dismissals occurring before 27 March 2006 considered.

Federal Magistrates Court Rules 2001 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss.46PE, 46PH
Workplace Relations Act 1996 (Cth), ss.650, 642, 651, 659, 660, 663, 665
Workplace Relations (Amendment) Work Choices Act 2005 (Cth)

Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531

Applicant: THEO KARABETSOS

Respondent: CONNOR ANDERSON INTERNATIONAL PTY LTD

File Number: SYG2057 of 2006

Judgment of: Driver FM

Hearing date: 28 September 2006

Delivered at: Sydney

Delivered on: 28 September 2006

REPRESENTATION

Solicitors for the Applicant: Mr A Hussein
Employment Help Lawyers

Counsel for the Respondent: Mr M Easton

Solicitors for the Respondent: IR Australia Pty Ltd

ORDERS

1. The subpoena issued on 28 August 2006 to Theo Karabetsos is now made returnable at 10.15am on 18 October 2006.

2. Any mediation using the services of the Court registry which the parties wish to engage in is to be completed by 22 December 2006 and the parties have leave to approach a registrar of this Court for a date should they wish to utilise the Court’s mediation services, pursuant to Part 27 of the Federal Magistrates Court Rules 2001 (Cth).

3. The applicant is to file and serve on the respondent any amended application no later than 31 October 2006.

4. Any further affidavit evidence upon which the applicant wishes to rely is to be filed and served on the respondent no later than 31 October 2006.

5. The respondent is to file and serve on the applicant any amended response no later than 30 November 2006.

6. Any affidavit evidence upon which the respondent wishes to rely is to be filed and served on the applicant no later than 30 November 2006.

7. Any affidavit evidence in reply upon which the applicant wishes to rely is to be filed and served on the respondent no later than 22 December 2006.

8. The matter be listed for final hearing for two days, commencing at 10.15am on 15 February 2007.

9. The applicant is to file and serve on the respondent an outline of written submissions no less than 14 days before the final hearing date.  A copy is also to be e-mailed to my associate.

10. The respondent is to file and serve on the applicant an outline of written submissions no less than 7 days before the final hearing date. 

    
    

    A copy is also to be e-mailed to my associate.

11. Parties have liberty to apply on three days notice.

12. Costs of today are reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2057 of 2006

THEO KARABETSOS

Applicant

And

CONNOR ANDERSON INTERNATIONAL PTY LTD

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application under the Workplace Relations Act 1996 (Cth) (“the Act”) seeking relief in relation to an asserted unlawful dismissal. The application was filed on 26 July 2006 and asserts, among other things, that the applicant was constructively and unlawfully dismissed from his employment in January 2006. Annexed to the application is a certificate issued under s.650 of the Act by Commissioner Cargill on 30 June 2006 and a notice of election under s.651 of the Act dated 26 July 2006.

2. When this matter first came before me on 25 August 2006 I queried with the representatives whether this Court had any jurisdiction in relation to the application, given that the alleged dismissal occurred prior to the conferral of jurisdiction on this Court pursuant to the Workplace Relations (Amendment) Work Choices Act 2005 (Cth) (“the Work Choices Act”) which commenced on 27 March 2006.  I queried whether the proceeding should be transferred to the Federal Court where there would be no doubt about that Court’s jurisdiction. 

   
   

   The preliminary response from the parties was that they did not seek such a transfer and sought to have the matter dealt with in this Court. 

   
   

   I adjourned to enable the parties to prepare for a preliminary argument on that issue of jurisdiction.

3. I heard submissions from Mr Easton for the respondent on the issue of jurisdiction this morning.  Mr Hussein, who appeared for the applicant, did not wish to be heard.  However, it is clear that both parties seek to have this matter continue in this Court on the basis that the Court does have jurisdiction.

4. The issue is not a simple one. The issue has arisen in analogous circumstances in relation to human rights proceedings where the Court’s jurisdiction depends upon the termination of a complaint under s.46PE or s.46PH of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”) and the giving of notice of termination under the latter section. Under the HREOC Act the Court has been found to have jurisdiction in relation to facts and circumstances occurring before the Court was conferred with jurisdiction provided that the termination under the HREOC Act enlivening the Court’s jurisdiction occurred after the Court was conferred with jurisdiction[1]. It appears that this Court’s jurisdiction in relation to unlawful dismissal proceedings under the Act is similarly limited. Prior to the commencement of the Work Choices Act amendments “the Court” as defined under the Act was the Federal Court[2]. However, the Work Choices Act introduced the definition of “court” in s.642 of the Act to include this Court. Section 663 relevantly provides in subsection (1) that an employee may apply to the Court, including this Court, for an order under s.665 in respect of an alleged contravention of one or more of ss.659 and 660 by his or her employer. Both s.642 and s.663 commenced operation on 27 March 2006. Section 642[3] was amended by item 101 in Schedule 1 to the Work Choices Act, which was unaffected by any transitional provisions (see below). Section 663[4], in referring to “the Court” was unaffected by the Work Choices Act amendments, other than the amendment to s.642 to alter the definition of “the Court”. Section 663 was amended in other respects by items 134-137 of Schedule 1 to the Work Choices Act. With one exception those amendments were also unaffected by the transitional provisions.

   [1] See Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531

   [2] see s.4

   [3] formerly s.170CD

   [4] formerly s.170CP

5. Subsection 663(5) requires as a jurisdictional condition precedent that the applicant has received a certificate under sub-s.650(2) regarding conciliation of an application made wholly or partly on the ground of the alleged contravention and, secondly, an election under s.651 to begin proceedings in the relevant court for an order under s.665 in respect of the alleged contravention. In the present case both of those jurisdictional prerequisites have been met. No challenge has been made to the validity of either the certificate or the election.

   
   

   The difficulty remains that the alleged dismissal occurred before the commencing day of the Work Choices Act amendments. 

6. I accept that the Court has been conferred with jurisdiction to deal with applications made to the Court from 27 March 2006 where the jurisdictional prerequisites have been met. The more difficult question is what statutory provisions must be applied to such an action as this. The majority of the amendments contained in the Work Choices Act commenced on 27 March 2006. Schedule 4 to the Work Choices Act in item 7 sets out amendments to the Act applicable to terminations that occur after the Work Choices Act commencement. The amendments made by schedule 1 referred to in subitem (2) apply in relation to terminations of employment that occur after the Work Choices Act commencement whether the employment commenced before or after that commencement. The items in schedule 1 identify the relevant legislative changes.

7. Amendments to the unlawful termination provisions contained in ss.659-667 of the Act do not apply to terminations which occurred before the commencement date, as explained in Schedule 4, Part 2 “Transitional, application and saving provisions”, Division 3 – Termination of employment, which states:

   7 Application to terminations that occur after the reform commencement

   (1) The amendments made by the items of Schedule 1 referred to in sub-item (2) apply in relation to terminations of employment that occur after the reform commencement (whether the employment commenced before or after that commencement).

8. The items listed in 7(2) relate to provisions which amend the unlawful termination provisions (the old ss.170 CK-170CT).

9. The Explanatory Memorandum states:

   Schedule 4, Part 2, Division 3, Item 7

   This item would provide that the amendments made by the items listed in sub-item 7(2) would apply in relation to all terminations of employment which occur after reform commences, regardless of the date when the employment commences.

   It is not intended that the amendments made by the items listed in sub-item 7(2) would apply in relation to a termination of employment which occurred before reform commencement even if the employee does not make an application under s.170CE until after the reform commences.

10. In this case the asserted termination of employment occurred before the Work Choices Act commencement so it would seem to me that the likely outcome is that the legislative amendments in relation to unlawful dismissals enacted by the Work Choices Act amendments referred to at [7]-[9] above would have no application. If that be wrong then it would be necessary to have regard to the particular amendments wrought by schedule 1 to the Work Choices Act which, relevantly, amend some provisions but not others. For example, item 140 in schedule 1 impacts upon s.665(2) and is affected by the transitional provisions but there is no reference in Schedule 4 to item 141 impacting upon s.665(3). That can be a matter for further legal submissions in the event that this matter goes to a final hearing.

    
    

    The resolution may not be a simple one.

11. I accept, however, that the Court does have jurisdiction to deal with the application before the Court and in dealing with the application the Court will need to determine whether the relevant legislative provisions to apply are those applying before 27 March 2006 or after it.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  4 October 2006