Industrial relations - Extra-territorial effect of State legislation - Jurisdiction of Industrial Relations Commission - Meaning of "industry" - Dismissal of employee working overseas - Close connection of contract of service with Western Australia - Commission held to have jurisdiction

Legislation:

Industrial Relations Act 1979 (WA), s 3, s 7, s 23(1), s 29(1), s 90(3)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr L A Tsaknis
Respondent: Mr D H Schapper

Solicitors:

Appellant: Mallesons Stephen Jaques
Respondent: Derek Schapper

Case(s) referred to in judgment(s):

Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309
Metropolitan Shop Assistants & Warehouse Employees' Industrial Union of Workers v Foy & Gibson Pty Ltd & Ors (1921) 23 WALR (I) 13
R v Foster; Ex parte Eastern and Australian Steamship Co Ltd (1959) 103 CLR 256
Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1

Case(s) also cited:

Colin Harris v Brandrill Ltd (2000) 80 WAIG 2456
Fitzgerald v Oil Drilling & Exploration (International) Pty Ltd (2000) 80 WAIG 4981
Lorimer v Smail (1911) 12 CLR 504
Mersey Docks & Harbour Board v Henderson Bros (1888) 13 AC 595
Ross v The Queen (1979) 25 ALR 137

KENNEDY J (Presiding Judge): I have had the benefit of reading in draft the reasons to be published by McKechnie J and Hasluck J, with which I am generally in agreement. It is abundantly clear that the proper law of the contract of service was the law of Western Australia, and that there was a very real and substantial connection with Western Australia, which was more than sufficient to confer jurisdiction on the Commission. I would dismiss the appeal, subject, however, to an adjustment in the damages in accordance with the agreement which has been reached between the parties.
McKECHNIE J:

Introduction

This appeal raises for consideration whether the employer of a person who is engaged to work overseas is nevertheless amenable to the jurisdiction of the Western Australian Industrial Relations Commission when an action is taken for unfair dismissal.
The appellant Mr Parker carries on the business of the survey and commissioning of marine vessels under the business name "Marine Offshore Survey & Commissioning".
On 18 September 1998 he employed the respondent Mr Tranfield as an oil rig surveyor. Mr Tranfield was dismissed from his employment on 14 December 1999.
On 7 January 2000 he filed an application under the Industrial Relations Act 1979 s 29 claiming that he had been unfairly dismissed by Mr Parker.
Mr Parker did not appear at the hearing, although he did write to the Commission challenging its jurisdiction and otherwise disputing the merits of the claim.
At first instance the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Parker v Tranfield

Details

AGLC: Parker v Tranfield [2001] WASCA 233
Case: [2001] WASCA 233
Decision Date: 7 AUGUST 2001

CaseChat Overview and Summary

In the matter of Parker v Tranfield, the primary issue was whether the Industrial Relations Commission of Western Australia had jurisdiction to hear a claim regarding the dismissal of an employee who had been working overseas. The respondent, Tranfield, had dismissed the applicant, Parker, who had been employed in Singapore. The applicant sought relief from the Industrial Relations Commission of Western Australia, arguing that his employment had a close connection to Western Australia, thereby bringing his dismissal within the jurisdiction of the Commission. The respondent contested the Commission's jurisdiction, asserting that the dismissal of an overseas employee was not subject to the state's industrial relations laws.

The central legal question before the court was whether the Industrial Relations Commission of Western Australia had the authority to hear a claim concerning the dismissal of an employee who was working overseas. This required an interpretation of the term "industry" within the context of the relevant legislation and an assessment of whether the applicant's employment had a sufficient connection to Western Australia to bring it within the scope of the state's industrial relations laws. The court had to determine whether the Commission's jurisdiction extended to employment contracts and dismissals occurring outside Australia, specifically in this case in Singapore.

The court held that the Industrial Relations Commission of Western Australia did indeed have jurisdiction to hear the applicant's claim. The court found that the applicant's employment had a close connection to Western Australia, as the contract of service was closely connected to the state. The court interpreted the term "industry" broadly, recognising that the modern understanding of industry includes activities that extend beyond physical borders. The court concluded that the Commission's jurisdiction was not limited to employees physically present within the state and could extend to employees working overseas if there was a significant connection to the state. Consequently, the court determined that the Commission had the authority to hear and decide the applicant's claim.

The court's decision confirmed the jurisdiction of the Industrial Relations Commission of Western Australia over the applicant's claim. The court's interpretation of "industry" and the close connection test allowed for the extension of the state's industrial relations laws to overseas employees under certain circumstances. The final orders of the court were that the Industrial Relations Commission of Western Australia had jurisdiction to hear the applicant's claim regarding his dismissal while working in Singapore.

Orders