R v Tasmanian Industrial Commission - [2015] TASSC 54

[2015] TASSC 54

COURT: SUPREME COURT OF TASMANIA

CITATION: R v Tasmanian Industrial Commission [2015] TASSC 54

PARTIES:  THE QUEEN
  v
  TASMANIAN INDUSTRIAL COMMISSION;

ex parte THE MINISTER ADMINISTERING THE STATE SERVICE ACT 2000

FILE NO:  1814/2015
DELIVERED ON:  19 November 2015
DELIVERED AT:  Hobart
HEARING DATE:  19 November 2015
JUDGMENT OF:  Estcourt J

CATCHWORDS:

Industrial Law – Tasmania – Industrial Commission – Jurisdiction and powers – Whether President has power to refer application pursuant to s 29(1) Industrial Relations Act 1984 to Full Bench of Tasmanian Industrial Commission.

Aust Dig Industrial Law [3380]

Administrative Law – Prerogative writs and orders – Generally – Provision in judicial review legislation prohibiting issue of prerogative writs – Orders in lieu of prerogative relief having similar effect still available under Rules of Practice – Supreme Court Rules 2000, r 627(2).

Industrial Relations Act 1984 (Tas), s 29(1).
Judicial Review Act2000 (Tas).
Tasman Quest Pty Ltd v Evans (2003) 13 Tas R 16; Kirk v Industrial Court of New South Wales (2012) 239 CLR 531; Duncan v Independent Commission Against Corruption [2015] HCA 32; Krulow v Glamorgan Spring Bay Council [2013] TASFC 11, considered.
Aust Dig Administrative Law [1194]

REPRESENTATION:

Counsel:
           Applicant:  No appearance
           Respondent:  No appearance
           Minister administering the
State Service Act 2000:                P Turner
Solicitors:
           Applicant:  No appearance
           Respondent:  Acting Director of Public Prosecutions
           Minister administering the
State Service Act 2000:                Acting Director of Public Prosecutions

Judgment Number: [2015] TASSC 54
Number of paragraphs: 30

Serial No 54/2015
File No 1814/2015

THE QUEEN v TASMANIAN INDUSTRIAL COMMISSION;
ex parte THE MINISTER ADMINISTERING THE STATE SERVICE ACT 2000

REASONS FOR JUDGMENT ESTCOURT J

19 November 2015

On 28 September 2015 the Tasmanian Industrial Commission (TIC), constituted by President Abey, referred an application numbered T14245 of 2014 to a Full Bench of the TIC.
The application was made by the Australian Nursing and Midwifery Federation (Tasmanian Branch) (the Federation) to the TIC pursuant to s 29(1) of the Industrial Relations Act 1984 (the IR Act). It sought a reclassification of an incumbent to the role of Clinical Nurse Specialist Grade 5 under the Classification Structure of the Nurses (Tasmanian Public Sector) Enterprise Agreement 2010.
A dispute about the appropriate classification of a position is an "industrial dispute" as that phrase is defined in s 3 of the IR Act, engaging, as it does, subpar(a)(i) of the definition of "industrial matter". That is to say, it involved a dispute about the mode, terms and conditions of employment.
The prosecutor contends that upon the proper construction of the relevant provisions of the IR Act there is no power in the President of the TIC to refer such an application to a Full Bench.
The prosecutor has made application to this Court for relief in the nature of certiorari as the Judicial Review Act 2000 is not engaged in the case of the decision purported to be made by President Abey.
Whilst s 43 of the Judicial Review…

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.

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Details

Case: [2015] TASSC 54
Decision Date: 19 November 2015

CaseChat Overview and Summary

The matter before the Court was an appeal by the Tasmanian Industrial Commission against a decision made by a single member of the Commission. The Commission argued that the single member had no authority to refer an application to the Full Bench under section 29(1) of the Industrial Relations Act 1984. The appeal was heard in the Supreme Court of Tasmania.

The central issue for the Court to determine was whether the President of the Tasmanian Industrial Commission had the power to refer an application to the Full Bench under section 29(1) of the Industrial Relations Act 1984. This involved interpreting the relevant statutory provisions and understanding the scope of the President’s authority. The Court needed to consider whether the President's power was limited to making decisions within the scope of a single member or whether it extended to referring matters to the Full Bench.

The Court found that the President of the Tasmanian Industrial Commission did have the power to refer an application to the Full Bench under section 29(1) of the Industrial Relations Act 1984. In reaching this conclusion, the Court examined the statutory language and context, determining that the power to refer applications was within the broader authority granted to the President. The Court rejected the argument that the President's powers were restricted to those of a single member. As a result, the Court dismissed the appeal, upholding the decision of the single member to refer the application to the Full Bench.

The Court's decision confirmed that the President of the Tasmanian Industrial Commission has the authority to refer applications to the Full Bench under section 29(1) of the Industrial Relations Act 1984. The appeal was dismissed, and the original decision to refer the application to the Full Bench was upheld.

Orders