Peter Cox v the South Australian Meat Corporation and James Walker v the South Australian Meat Corporation
[1995] IRCA 5
•12 January 1995
CATCHWORDS
INDUSTRIAL RELATIONS - Unfair Dismissal - Federal Award - whether adequate alternative remedy in state jurisdiction
Industrial Relations Act 1988 (CTH) ss 170EB
Judiciary Act s 78B
Industrial & Employee Relations Act 1994 (S.A.) Part 6
Wylie v Carbide International Pty Ltd 55 IR 326
Liddell v Cheryl's Unisex Salon 139/94
R v Industrial Court of South Australia; ex parte G.M.H. (1975) 10 SASR 582
Metal Trades Industry Association v Amalgamated Metal Workers & Shipwrights Union (1983) 4 IR 285
Metal Trades Industry Association Appeal (1991) 36 IR 451
No. SI 226 of 1994
PETER COX v THE SOUTH AUSTRALIAN MEAT CORPORATION
AND
No. SI 227 of 1994
JAMES WALKER v THE SOUTH AUSTRALIAN MEAT CORPORATION
Judicial Registrar Farrell
Adelaide
12 January 1995
INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
SOUTH AUSTRALIAN DISTRICT REGISTRY )
No. SI 226 of 1994
B E T W E E N:
PETER COX
Applicant
- and -
THE SOUTH AUSTRALIAN MEAT CORPORATION
Respondent
AND
No. SI 227 of 1994
B E T W E E N:
JAMES WALKER
Applicant
- and -
THE SOUTH AUSTRALIAN MEAT CORPORATION
Respondent
MINUTES OF ORDER
BEFORE : Judicial Registrar Farrell
PLACE : Adelaide
DATE : 12 January 1995
THE COURT ORDERS THAT:
The notice of motion be dismissed.
The principal proceedings to be set down for hearing on the 23rd and 24th January 1995.
Note: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules
INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
SOUTH AUSTRALIAN DISTRICT REGISTRY )
No. SI 226 of 1994
B E T W E E N:
PETER COX
Applicant
- and -
THE SOUTH AUSTRALIAN MEAT CORPORATION
Respondent
AND
No. SI 227 of 1994
B E T W E E N:
JAMES WALKER
Applicant
- and -
THE SOUTH AUSTRALIAN MEAT CORPORATION
Respondent
REASONS FOR JUDGMENT
BEFORE : Judicial Registrar Farrell
PLACE : Adelaide
DATE : 12 January 1995
In these matters, which are applications pursuant to 170EA of the Industrial Relations Act 1988 (Commonwealth) ("the Federal Act") the respondent has sought to have this Court decline to hear the applications on the basis that the provisions of Part 6 of the Industrial and Employee Relations Act 1994 (S.A.) ("the State Act") provide an "adequate alternative remedy" within the meaning of section 170EB of the "Federal Act".
At the outset of this hearing and at an earlier directions hearing counsel for the respondent raised whether pursuant to section 78B of the Judiciary Act the Attorney-Generals of the Commonwealth and States should be served with notice of these proceedings. I declined to take the steps outlined in section 78B because in my view my role in these proceedings is not to interpret the constitution or to decide the competency of the State legislature to make law. My only role is to determine whether an adequate alternative remedy for the purposes of section 170EB of the "Federal Act" exists in respect of these two applicants.
It was of course open to the respondent to file and serve notices in accordance with Order 51 of the Industrial Relations Court Rules if it thought it was appropriate and necessary.
The facts of the matter were agreed as follows:-
the applicant Walker was employed from the 4th February 1991 as a maintenance fitter until he was dismissed on the 14th October 1994;
the applicant Cox was employed from the 22nd April 1986 as a maintenance fitter until he was dismissed on the 14th October 1994;
the applicants were employed pursuant to an Award of the Australian Industrial Relations Commission, namely the South Australian Meat Corporation Award 1992 (including a variation of the Award relating to maintenance workers) hereinafter referred to as the "Award";
no proceedings have been issued by either applicant pursuant to the "State Act".
The Award deals with, amongst other things, the termination of employment. It contains a fairly standard termination change and redundancy clause. Both counsel for the applicant and counsel for the respondent pointed to a number of decisions that dealt with inconsistency between Federal Awards and various State legislation. The decisions they referred to include:
Metal Trades Industry Association v Amalgamated Metal Workers & Shipwrights Union (1983) 4 IR 285;
Metal Trades Industry Association Appeal (1991) 36 IR 451; and
R v Industrial Court of South Australia; ex parte G.M.H. (Gnatenko's Case) (1975) 10 SASR 582.
The cases demonstrate that there is the clear history of persons employed pursuant to Federal Awards such as the Award in this matter being denied the right to pursue a claim for unfair dismissal in State jurisdictions.
In my view I do not have to go so far as to determine the issue of whether or not inconsistency exists here. The fact that it is arguable creates uncertainty as to whether the applicants have a remedy at all pursuant to the "State Act". In those circumstances I cannot be satisfied that the applicants in this case have an adequate alternative remedy.
Argument was also presented by the parties regarding the time limitation contained in the "State Act". The "State Act" provides that proceedings for unfair dismissal must be commenced within fourteen days after the dismissal takes effect. It also contains a means of extending that time limit. The applicants in this matter, who have not issued proceedings pursuant to the State Act, are already well out of time for bringing such proceedings. During argument counsel for the respondent advised me that his client would consent to an extension of time if the applicants were to commence proceedings in the State jurisdiction. That however would not necessarily ensure that an extension of time would be granted as the State Commission has a discretion to exercise.
Their Honours Wilcox CJ and Keeley J have stated in the unreported (dated 15 December 1994) decision of Liddell v Cheryls Unisex Salon as follows:-
"An entitlement to seek an extension of time for making an application for a determination on the merits is inferior to an entitlement to have a determination on the merits".
The respondent argued that in any event there was no need for an extension of time because Section 111 of the State Act provided for any necessary modification to be made to provide an adequate alternative remedy.
Section 111 provides as follows:-
Termination of Employment Convention 1982 -
111.(1) In enacting this part, it is Parliament's intention to give effect to the "Termination of Employment Convention".
(2)If, in any respect, this part does not provide a remedy that is an adequate alternative remedy (within the meaning of section 170EB of the Commonwealth Act) to the remedy available to an employee in respect of termination of employment under the Commonwealth Act, this Part is to be read subject to the modifications necessary to provide an adequate alternative remedy.
(3)The court may, on application by the Minister, declare what (if any) modifications to this Part are necessary to provide an adequate alternative remedy as required under subsection (2).
(4)The modifications specified in a declaration under this section take effect as if they had been enacted by parliament.
Counsel for the applicant argued that section 111 was invalid or in the alternative if it was not invalid it required a two step process such as that referred to by Keeley J in the decision of Wylie v Carbide International Pty Ltd (1954) 55 IR 326.
It is not for me to decide on the validity of the "State Act". The reality is that I cannot say with any certainty that these applicants, were they denied the right to pursue a claim in this Court, would have any adequate alternative remedy.
For these reasons I am not satisfied that there is available to the two applicants in these matters an adequate alternative remedy in respect of the termination of their employment under existing machinery that satisfies the requirement of the termination of employment convention. The notice of motion is therefore dismissed and the principal proceeding will be set down for hearing on the 23rd and 24th of January 1995.
I certify that this and the preceding 5 pages are a true copy of my Reasons for Judgment.
Dated: 12 January 1995
Counsel for the Applicants : Mr S Blewett
Counsel for the Respondent : Mr R Manuel
Hearing Date : 9 January 1995
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