McGarry v Coates
[2013] QCATA 32
•18 February 2013
| CITATION: | McGarry v Coates [2013] QCATA 32 |
| PARTIES: | Sean Raymond McGarry (trading as Abstract Plumbing Services) (Appellant) |
| v | |
| John Coates (Respondent) |
| APPLICATION NUMBER: | APL161-12 |
| MATTER TYPE: | Appeals |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 18 February 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal upheld. 3. The Decision and award made on 3 May 2012 is set aside. 4. The Application filed on 23 May 2012 is transferred to the Magistrates Court of Queensland at Pine Rivers. 5. Proceedings in the said Court shall be taken to have commenced on 23 May 2012. 6. The applicant John Coates shall be taken to have complied with all requirements of the Fair Work Act 2009 (Cth) for commencement and hearing in the said Court of a small claims procedure, within the meaning of section 548 of the said Act. 7. Liberty to each party to apply for further directions upon 7 days’ notice in writing to the other party and to the Tribunal. |
| CATCHWORDS: | JURISDICTION – MINOR CIVIL DISPUTE - claim for wages due under award – award made under Fair Work Act 2009 (Cth) – whether QCAT has jurisdiction to hear and determine the matter – whether the Fair Work Act 2009 requires action to be brought in Federal or State Magistrates Court. Commonwealth Constitution Chapter III Fair Work Act 2009 (Cth), ss 11, 12, 27, 117, 548, 565, Ch 4, Sch 3 Miscellaneous Award 2010 (Cth) Queensland Civil and Administrative Tribunal Act 2009, ss 32, 52 Baxter v NSW Clickers; Association (1909) 10 CLR 114 Wiechers v Sodexo Remote Sites [2012] QCAT 16 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
On 3 May 2012, in the decision of a Minor Civil Dispute, the appellant, Sean Raymond McGarry (“McGarry”) was ordered to pay to the respondent John Coates (“Coates”) the sum of $2,695.95, and a filing fee of $95.00, making a total of $2,790.95.
On 5 September 2011 McGarry employed Coates as a plumber and gasfitter, and on 13 September 2011, McGarry dismissed him.
Coates’ case is that he was entitled to one week’s pay in lieu of notice. McGarry’s response is that Coates was a daily hire employee, and, as such, entitled to just one day’s notice, according to his contract.
The Member rejected McGarry’s defence, holding that by virtue of the Fair Work Act 2009 (Cth) (“the FWA”) McGarry was entitled to one week’s payment in lieu of notice[1], a civil penalty for “waiting time for payment”, and accrued holiday pay.[2]
[1]FWA s 117(3); one week is the minimum period of notice to a person employed for less than one year.
[2] Reasons for Decision 3 May 2012 (“Decision”) page 3.
It was held that Coates’ employment was governed by the FWA and the Plumbing and Fire Sprinklers Award 2010, promulgated under that Act.
In the course of his reasons the Member raised an issue that the unrepresented parties could not be expected to canvass, namely whether QCAT has jurisdiction to decide claims for wages based on an FWA award. It is clear that a court or tribunal may raise a fundamental question of jurisdiction on its own initiative - ex mero motu, as many authorities have it.[3] Courts are bound to take judicial notice of the limits of their powers. Agreement, silence or acquiescence of parties cannot confer jurisdiction over a dispute that a tribunal is not empowered to decide.[4] It would be highly undesirable, not to mention a waste of time and resources, to go through the motions of reaching a void decree,[5] which a judgment debtor is simply free to ignore.[6] Whether the want of jurisdiction appears immediately, or at a later stage[7] the Tribunal must “hold its hand”.[8]
[3]Thorpe v Charles Sturt City Corporation (1999) 103 LGERA 395; [1999] SASC 10 at [6]; Marine Coatings of Alabama Inc v United States of America (1986) 792 F 2d 1565; Nunn v Baker (1987) 518 So 2d 711 at 712.
[4] Rail Corporation of NSW v Nebax Constructions [2012] NSWSC 6 at [35].
[5]Baxter v NSW Clickers; Association (1909) 10 CLR 114 at 126 per Griffith CJ; Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 375; R v Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113 at 126.
[6] DMW v CGW ; (1982) 151 CLR 491; [1982] HCA 73 at [8].
[7] Wall v the Queen; Ex parte King Won (No 1) (1927) 39 CLR 245 at 257.
[8] Ibid.
The learned Member decided that the Tribunal does have jurisdiction in this case. With due respect, I am unable to agree. I reach that conclusion for the reasons I have sought to articulate in J F Hodge Pty Ltd (trading as Outback Refrigeration) v Brown.[9] For the convenience of the parties and completeness of the record, I restate those reasons here.
[9] APL 337-12.
In Wiechers v Sodexo Remote Sites[10] the question was whether a wages claim should proceed in the Queensland Industrial Commission or in QCAT. In a brief judgment it was held that the Commission’s jurisdiction in such matters was terminated by the Workplace Relations Act 1996 (Cth).[11] However, according to Wiechers, QCAT could deal with the matter as a Minor Civil Dispute.[12] However, there was little discussion of special jurisdictional provisions of the FWA, and their implications for State tribunals.
[10] [2012] QCAT 16.
[11] [2012] QCAT 16 at [4].
[12] [2012] QCAT 16 at [3], citing ss 11, 12 and Schedule 3 of the QCAT Act..
In Centurion International Corporation Pty Ltd v Coetzee[13] the jurisdictional question was not canvassed. Centurion merely complained that the Adjudicator ignored its submissions, showed undue interest in the claimant’s case, and was biased. It also sought to adduce new evidence impugning the quantum of the claim. None of these submissions commended itself to the Appeals Tribunal, but because of the manner in which Centurion was conducted, it offers no assistance here.
[13] [2011] QCATA 14.
In the present case the primary decision maker recognised that the FWA[14] contains comprehensive provisions for its enforcement by courts, namely the Federal Court, the Federal Magistrates Court and “eligible State or Territory Courts”.[15] Nevertheless, he considered that that there is nothing in the FWA to oust QCAT’s jurisdiction to entertain Minor Civil Claims based on contracts of employment.[16]
[14] FWA Chapter 4.
[15] FWA s 539.
[16] [2012] QCAT 187 at [14].
However, as it seems to me, the absence of a reference to tribunals in the FWA is less significant than its explicit references to courts. The FWA is ambitiously comprehensive legislation, significantly expanding the Commonwealth’s industrial powers. While it does leave some room for enforcement of its awards by “eligible State or Territory Courts”, those entities are defined as District, County or Local Courts, Magistrates Courts, or any other State or Territory court prescribed by the regulations.[17] There is no regulation extending that definition to tribunals in general or to QCAT in particular. In concentrating upon courts the draftsman probably had in mind Chapter III of the Commonwealth Constitution. It is notable that appeals from “eligible State courts” do not remain in the State judicial system, but are reserved to the Federal Court.[18] No such right of appeal appears in the QCAT Act; it would be anomalous, not to say ultra vires, if it did.
[17] FWA s 12, Dictionary.
[18] FWA s 565.
It is true[19] that the FWA, in a list of State laws unaffected by it, refers to “claims for enforcement of employment contracts”,[20] but in my respectful view that provision should be read strictly as a residuary clause preserving State jurisdiction over contracts of employment not governed by an FWA award[21]. This is not an academic point; in practice, and despite the wide embrace of the FWA, such arrangements are not uncommon. The Miscellaneous Award 2010 (Cth) (as amended) relevantly provides:
The award does not cover those classes of employees who, because of the nature or seniority of their role, have not traditionally been covered by awards including managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists.
[19] As pointed out in Coates v McGarry [2012] QCAT 187 at [14].
[20] FWA s 27(2)(o).
[21] See FWA s 12 defining “award/agreement free employees”.
Decisions confirming the award-free status of certain employees include Tucker v Digital Diagnostic Imaging Pty Ltd[22], Halasagi v George Weston Foods Ltd[23], Hehir v Schweitzer Engineering Laboratories Pty Ltd[24] and McMenemy v Thomas Duryea Consulting Pty Ltd (t/a Thomas Duryea Consulting)[25]. Clearly it is desirable, absent remedies under the FWA, that such employees should not be deprived of their remedies at common law, including the common law of debt, as applied in this Tribunal. Therefore it is perfectly possible to give meaning and practical effect to section 27(2)(o) of the FWA without trespassing upon jurisdiction that the FWA explicitly confers upon “eligible State courts” .
[22] [2011] FWA 1767 (senior IT manager).
[23] [2010] FWA 6503 (digital programmer).
[24] [2011] FWA 3763 (project manager).
[25] [2012] FWAFB 7184 (State manager).
That jurisdiction includes a special “small claims procedure” for recovery of moneys due under a “fair work instrument”,[26] to a limit of $20,000.[27] The prescribed procedures are remarkably similar to those in QCAT’s original jurisdiction,[28] but the claim must be brought in “a [State] Magistrates Court or the Federal Magistrates Court”.[29]
[26] Including a “modern award”: FWA s 12.
[27] FWA s 548(2).
[28]Court procedures and rules of evidence are not mandatory, and the court may proceed informally, unfettered by “legal forms and technicalities”: FWA s 548(3).
[29] FWA s 548(1)(a).
It is interesting, and perhaps significant, that no claim for wages due under the FWA appears to have been dealt with in the civil jurisdictions of the Victorian Civil and Administrative Tribunal[30], or the State Administrative Tribunal of Western Australia.[31]
[30] “Civil claims list”, no quantum limit.
[31] “Minor matters procedure” is available for claims up to $10,000.
I conclude, then, that QCAT does not have jurisdiction to hear claims based on FWA awards, as distinct from “non-award” claims. It follows that the primary decision involves an error of law requiring a grant of leave to appeal, and allowance of the appeal for want of jurisdiction.
However, a dismissal for want of jurisdiction raises no estoppel.[32] In other words, Brown might renew his claim in a court of competent jurisdiction; by the same token, Hodge might rely upon its present defence, other than an objection to jurisdiction.
[32] Cross on Evidence 5th Aust edn at [5025].
Transfer of Proceedings
Want of jurisdiction notwithstanding, the Tribunal has available a better solution than a mere dismissal of the claim. The Tribunal is able to take a positive step in these proceedings. I propose to order the transfer of this matter to the Magistrates Court,[33] with consequential orders[34] to facilitate proceedings therein.
[33] QCAT Act ss 52(2) and (6) (Tribunal may act on own initiative).
[34] QCAT Act s 52(4).
Orders
Leave to appeal granted.
Appeal upheld.
The Decision and award made on 3 May 2012 is set aside.
The Application filed on 23 May 2012 is transferred to the Magistrates Court of Queensland at Pine Rivers.
Proceedings in the said Court shall be taken to have commenced on 23 May 2012.
The applicant John Coates shall be taken to have complied with all requirements of the Fair Work Act 2009 (Cth) for commencement and hearing in the said Court of a small claims procedure, within the meaning of section 548 of the said Act.
Liberty to each party to apply for further directions upon 7 days’ notice in writing to the other party and to the Tribunal.
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