Kauffman v Aboriginal Hostels Limited (Civil Dispute)
[2016] ACAT 28
•12 April 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
KAUFFMAN V ABORIGINAL HOSTELS LIMITED (Civil Dispute) [2016] ACAT 28
XD 1185/2015
Catchwords: CIVIL DISPUTE – unpaid wages and superannuation – whether tribunal has jurisdiction to hear the matter – no jurisdiction
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 (ACT) s 3, 9, 16, 68, 69, Dictionary
Legislation Act 2001 (ACT) ss 7, 8, Dictionary
Public Service Act 1999 (Cth) s 23
Cases cited:Bailey & Trusses & Frames Pty Ltd [2012] ACAT 71
Frame & Tigne Pty Ltd [2012] ACAT 56
Paul Fitzwarryne v Chief Executive Officer Aboriginal & Torres Strait Islander Commission (PSC 93/3539)
List of
Texts/Papers cited: Aboriginal Hostels Limited (AHL) Enterprise Agreement 2011-2014
Tribunal: Senior Member H Robinson
Date of Orders: 12 April 2016
Date of Reasons for Decision: 12 April 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 1185/2015
BETWEEN:
PAUL RICHARD KAUFFMAN
Applicant
AND:
ABORIGINAL HOSTELS LIMITED
Respondent
TRIBUNAL: Senior Member H Robinson
DATE: 12 April 2016
ORDER
1.The Tribunal finds that it has no jurisdiction in this matter and accordingly the matter is dismissed.
………………………………..
Senior Member H Robinson
REASONS FOR DECISION
This is an application by Dr Kauffman (the applicant), to recover ‘unpaid wages and superannuation’ totalling $9,934.00 allegedly owed by his employer, Aboriginal Hostels Limited (the respondent), for the period 6 December 2011 to 8 July 2014.
Process
The respondent seeks to have this matter dismissed on the basis that the Tribunal lacks jurisdiction to hear it. Accordingly, the matter was listed before the Tribunal for a hearing on the jurisdiction on 26 February 2016. At that hearing, Dr Kauffman appeared in person and the respondent was represented by Ms Nand from Sparke Helmore Lawyers.
During the hearing on jurisdiction, the parties made oral submissions and I indicated that my preliminary view was that the Tribunal did not have jurisdiction. Dr Kauffman submitted that I should read the decision of ACT Small Claims Court Paul Fitzwarryne v Chief Executive Officer Aboriginal & Torres Strait Islander Commission (PSC 93/3539) (Fitzwarryne) before making a final decision, and I agreed to reserve in order to do so. I also gave parties an opportunity to file short written submissions of no more than two pages, and both did so.
Having read Fitzwarryne and the parties’ respective submissions, I remain of the view that the Tribunal has no jurisdiction to hear this matter. I set out my reasons below.
Background
The respondent is a company limited by guarantee and wholly owned by the Commonwealth Government.
Dr Kauffman commenced employment with the respondent in July 2010, having transferred from another Commonwealth entity. He was transferred at the classification of Executive Level 2 (EL2), but on 6 December 2011 was purportedly demoted to the classification of Executive Level 1 (EL1) (demotion decision) pursuant to section 23(4) of the Public Service Act 1999 (Cth) (PS Act).
By this application, Dr Kauffman seeks to recover the difference between his EL1 remuneration and his EL2 remuneration for the period 6 December 2011 to 8 July 2013.
As I understand his claim, he seeks to recover this amount as a debt that arises by reason of a breach of his common law employment contract. In this regard, he relies on the section 16(c) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act), which confers jurisdiction on the Tribunal in relation civil debt applications. He also claims that this application is under section 69 (and perhaps section 68) of the ACAT Act, which are provisions that govern administrative review.
For its part, the respondent contends that by this application, Dr Kauffmann is seeking a review of the demotion decision and, as this is not a matter that is reviewable by the Tribunal, the Tribunal has no jurisdiction to hear the matter.
Consideration
Dr Kauffman contends that his entered into a common law contract with the respondent on 11 June 2010, when he was offered, and accepted, an offer of ongoing employment at an EL2 level at the salary of $96,721 per annum (EL2 salary). He contends that the terms of that contract are set out in the written letter of offer of 11 June 2010 (employment contract). He further contends that the respondent breached his employment contract when, in 2012 and 2013, it paid him less than the EL2.
The respondent does not dispute that it paid Dr Kauffman less than the EL2 salary for the relevant period, but says that this was because, by reason of the demotion decision, he was in fact employed as an EL1 during that period.
The issue is therefore: what, if any, jurisdiction does the Tribunal have in relation to this dispute?
The Tribunal’s jurisdiction is established by the ACAT Act and is limited to that conferred by ‘authorising laws’.[1] The Dictionary to the ACAT Act defines an ‘authorising law’ to mean either a ‘Territory law’ that provides that an application may be made to the Tribunal or, where the matter involves a civil dispute, the ACAT Act itself.[2] ‘Territory Law’ is not defined in the ACAT Act, but is defined through a series of definitions in the Legislation Act 2001 (ACT) to mean a law (however described or named) made by the ACT Legislative Assembly, or subordinate legislation made under section a law.[3]
[1] Section 9 of the ACAT Act
[2] Section 3 and Dictionary of the ACAT Act
[3] See Legislation Act 2001 (ACT) Dictionary, sections 7, 8.
The Tribunal’s civil jurisdiction is set out in part 4 of the ACAT Act. It includes claims for breach of contract[4] and debt applications up to the relevant jurisdictional limit of $10,000.00. There is no doubt that this jurisdiction includes claims based on a breach of a common law contract of employment.[5]
[4] Section 16(a) of the ACAT Act
[5] For example, Bailey & Trusses & Frames Pty Ltd [2012] ACAT 71; Frame & Tigne Pty Ltd [2012] ACAT 56
The difficulty with the applicant’s position, however, is that he was not simply engaged under a common law contract.
As the terms of his employment contract make clear, Dr Kauffmann was engaged by the respondent as a public servant under and in accordance with the provisions of the PS Act. This means that his employment is subject to the terms of that PS Act, including subsection 23(4)(e) of that Act, which provides for demotion in certain circumstances. As a general principle of interpretation, the terms of the PS Act will override any contractual provisions that are inconsistent with it.
Moreover, the remuneration payable to employees of the respondent who are at the EL1 and EL2 classification is governed not by contract, but by the Aboriginal Hostels Limited (AHL) Enterprise Agreement 2011-2014. There is no dispute that the applicant was paid the correct salary for an EL1 – the only dispute is whether he should instead have been paid at the EL2 level.
Consequently, in order to succeed in his claim for damages, or the recovery of a debt, the applicant must be able to show that the purported demotion was in some sense unlawful, invalid or a breach of contract. A claim on any of these bases must inevitably require that the Tribunal review whether the demotion decision was in accordance with subsection 23(4)(e) of the PS Act.
As the PS Act is a law of the Commonwealth it does not confer any jurisdiction on the Tribunal. The PS Act is therefore not an ‘authorising law’ for the purposes of the ACAT Act. The Tribunal cannot review whether the demotion decision was lawful, or effective, and therefore it has no effective jurisdiction to decide the real issues in relation to this matter.
Accordingly, I am satisfied that the issues in this application are beyond the jurisdiction of the Tribunal. I am also of the view that it would be frivolous to proceed with a hearing in circumstances where the Tribunal cannot consider the lawfulness of the key event, being the demotion decision.
There is nothing in the Fitzwarryne case that changes or alters this position. This decision involved an application by a senior executive service officer for reimbursement of expenses incurred in the discharge of his duties from his home office, in circumstances where his employer knew he was working from home and acquiesced to the arrangement. The claim was “a common money count whereby the claimant is seeking reimbursement for expenses necessarily incurred on behalf of [his employer].”[6]
[6] At page 13
In any case, Fitzwarryne was determined prior to the passage of the PS Act and the Fair Work Act 2009, and indeed prior to the establishment of the ACAT. It does not concern an entitlement under an industrial instrument, it does not go to any issue of jurisdiction and is therefore of limited, if any, relevance in these circumstances.
The Tribunal appreciates that Dr Kauffman feels greatly aggrieved by the circumstances of the demotion decision, but any review of that decision must be done in an appropriate forum that has the power to review the lawfulness of that decision. The Tribunal is not that forum.
Accordingly, the Tribunal finds that it has no jurisdiction in this matter and accordingly the matter is dismissed.
………………………………..
Senior Member H Robinson
HEARING DETAILS
FILE NUMBER: | XD 1185/2015 |
PARTIES, APPLICANT: | Paul Richard Kauffman |
PARTIES, RESPONDENT: | Aboriginal Hostels Limited |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | N/A |
SOLICITORS FOR APPLICANT | N/A |
SOLICITORS FOR RESPONDENT | Sparke Helmore |
TRIBUNAL MEMBERS: | Senior Member H Robinson |
DATES OF HEARING: | 26 February 2016 |
0
2
3