R v Tasmanian Industrial Commission; ex parte Farrell
[2002] TASSC 28
•14 May 2002
[2002] TASSC 28
CITATION: R v Tasmanian Industrial Commission; ex parte Farrell [2002] TASSC 28
PARTIES: R
v
TASMANIAN INDUSTRIAL COMMISSION
FARRELL, Kenneth James; ex parte
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M305/2001
DELIVERED ON: 14 May 2002
DELIVERED AT: Launceston
HEARING DATES: 12 April 2002
JUDGMENT OF: Crawford J
CATCHWORDS:
Industrial Law - Other jurisdictions - Tasmania - Tasmanian Industrial Commission - Jurisdiction and powers - Application by former employee for severance pay under a term of the employment contract following termination of employment - Termination not a result of redundancy - Whether former employee had right to apply.
Industrial Relations Act 1984 (Tas), ss19(1) and 29(1) and (1A).
New Town Timber & Hardware Pty Ltd v Gurr (1995) 5 Tas R 71, referred to.
Aust Dig Industrial Law [424]
REPRESENTATION:
Counsel:
Applicant: In person
State of Tasmania: P Turner
Solicitors:
Applicant: In person
State of Tasmania: Director of Public Prosecutions
Judgment Number: [2002] TASSC 28
Number of Paragraphs: 31
Serial No 28/2002
File No M305/2001
THE QUEEN v TASMANIAN INDUSTRIAL COMMISSION;
ex parte KENNETH JAMES FARRELL
REASONS FOR JUDGMENT CRAWFORD J
14 May 2002
Although the order obtained by Mr Farrell on 22 October 2001 was expressed as an order that a writ of mandamus issue to the Tasmanian Industrial Commission, it is common ground that at that time he was only entitled to an order nisi under the Industrial Relations Act 1984 ("the Act"), s72(2), and the order was treated as such at the hearing before me.
Mr Farrell was appointed to the office of Economic Adviser, Office of Premier. The instrument of appointment expressed it to be for a term expiring on 31 May 2000 or on the resignation or other termination of the Government, whichever should first occur. The first in point of time was in fact the resignation of the Government following loss of an election on or about 14 September 1998. By cl 5(b) of the instrument, it was provided that should the appointment be terminated by expiration of the term, he should receive the entitlements set out in Sch4.
Schedule 4, cl 1, provided for a severance payment calculated on the basis of (inter alia) 12 weeks' pay if he had five years, but less than ten years, service in a Ministerial service. He was in fact paid 12 weeks' severance pay following the termination of his appointment.
The present dispute concerns the amount of the payment. He claimed that it was based only on his annual salary as specified in Sch4, cl 1 of the instrument of appointment, whereas it ought to have included (the employer's) superannuation contributions calculated on the severance pay at a rate equivalent to 13.75 per cent, which were required to be paid to the trustees of a private complying superannuation fund that satisfied the requirements of the Superannuation Guarantee (Administration) Act 1992 (Cth) nominated by Mr Farrell. He also claimed an amount representing private telephone costs and the value of a car parking space, as part of his severance payment.
On 20 November 2000, Mr Farrell made a written application to the President of the Industrial Commission for a hearing in respect of an industrial dispute, in which he asserted his claim. The President convened a hearing before a Commissioner, which was conducted over a number of dates. The application was opposed. On 30 May 2001, the Commissioner dismissed the application for reasons that were published.
The application had been made by Mr Farrell on a printed form provided by the Commission. All Mr Farrell had to do was to fill in boxes and spaces. Across the top of the form its heading was printed as an "application for hearing in respect of an industrial dispute - section 29(1A)".
Halfway down the first page of the application form was printed the following:
"Part B. Purpose of Application for a Hearing
1 Does your dispute with the former employer relate to any one or more of the following?-
· alleged unfair termination of employment-section 29(1A)(a)
ÌÉYes ÌÉ No
· severance pay in respect of termination of employment as a result of redundancy-section 29(1A)(b) ÌÉYes ÌÉ No
· Alleged breach of an award or a registered agreement-section 19(1A)(c)
ÌÉYes ÌÉ No"
Mr Farrell ticked the "No" boxes for the first and third bullet point and the "Yes" box for the second bullet point.
On the third page of the form, provision was made for an applicant to insert details of what he was claiming, depending on which of those boxes he had ticked "Yes", that is to say, depending on whether the claim was made under pars(a), (b) or (c) of subs29(1A). Relevantly, the printed form sought the following information:
"Part H. Additional particulars regarding claims for Severance Pay where Termination of Employment is the result of Redundancy -S29(1A)(b)
1 What are the details of your claim for severance pay?"
In the space provided Mr Farrell wrote:
"i have been paid salary only in relation to the 12 weeks of severance pay. I should be paid in addition the superannuation, private telephone costs, and value of the car park."
On the next page, the form asked him to explain the facts and circumstances that gave rise to his application and he provided details.
The Commissioner noted that the application appeared to be one under s29(1A) and that Mr Farrell had ticked a box indicating that he was claiming under s29(1A)(b) for severance pay in respect of termination of employment as a result of redundancy. The Commissioner determined that Mr Farrell's employment was not terminated as a result of redundancy, but because the term of his appointment had expired. Accordingly, any entitlement he had to severance pay had not arisen because his employment, as a former employee, was terminated as a result of redundancy. The Commissioner concluded that Mr Farrell had no entitlement to what his application form purported to seek in its heading and in Part B and Part H.
Nevertheless Mr Farrell argued to the Commissioner that under s19, the Commission had jurisdiction to hear and determine his application, as a former employer, to entitlement to severance pay following termination of his employment, whether or not redundancy was a cause of the termination. He pointed out that under s19(1), "Subject to this Act, the Commission has jurisdiction to hear and determine any matter arising from, or relating to, an industrial matter", and that under s3(1), unless the contrary intention appeared, the term "industrial matter" had the following meaning:
"'industrial matter' means any matter pertaining to the relations of employers and employees and, without limiting the generality of the foregoing, includes ¾
(a)a matter relating to ¾
(i)the mode, terms and conditions of employment; or
(ii)the termination of employment of an employee or former employee; or
(iii)the reinstatement or re-employment of an employee or a former employee who has been unfairly dismissed; or
(iv)the payment of compensation to an employee or a former employee if the Commission determines that reinstatement or re-employment is impracticable; or
(v)severance pay for an employee or a former employee whose employment is to be, or has been, terminated as a result of redundancy; or
(vi)a dispute under the Long Service Leave Act 1976 or the Long Service Leave (State Employees Act 1994) relating to an entitlement to long service leave, or payment instead of any such leave, or the rate of ordinary pay at which any such leave or payment is to be paid in respect of an employee or former employee; or …"
The Commissioner rejected Mr Farrell's argument concerning jurisdiction under s19. She referred to the opening words of subs(1) that its provisions were "subject to this Act", and thought that indicated that the section should be considered in conjunction with the whole of the Act and therefore, that "I must also take account of the limitations imposed by s29(1A) and, indeed, any other relevant sections". The Commissioner then considered the definition of "industrial matter" in s3(1) and held that the reference in the opening words to "the relations of employers and employees" did not extend to relations between former employers and former employees unless the Act specified otherwise. It was her view that if it had been intended that the expression "employers and employees" included former employers and former employees, the Act would not have distinguished between the two. The Act made such a distinction, and the Commissioner pointed in particular to the references to "an employee or former employee" and "an employee or a former employee" in subpars(ii) - (v) (see also (vi)) of par(a) of the definition and the omission to refer to former employees (or employees, for that matter) in subpar(i).
The Commissioner then returned to a consideration of s29(1) and (1A). At the time Mr Farrell lodged his application they were in these terms:
"29 ¾ (1) An organization, employer, employee or the Minister may apply to the President for a hearing before a Commissioner in respect of an industrial dispute.
(1A) A former employee may apply to the President for a hearing before a Commissioner in respect of an industrial dispute relating to ¾
(a)the termination of employment of the former employee; or
(b)severance pay in respect of employment of the former employee terminated as a result of redundancy; or
(c)a breach of an award or a registered agreement involving the former employee."
The Commissioner held that s29(1) allowed an organisation, an employer, an employee or the Minister to apply for a hearing in respect of an "industrial dispute", without limitation, but as s29(1A) listed those matters in relation to which a former employee might apply to the President for a hearing in respect of an industrial dispute, former employees were confined to applying for the three matters specified in pars(a), (b) and (c) of subs(1A). The Commissioner's opinion was that "had the Parliament intended the Commission to extend its jurisdiction beyond those matters, the Act would say so".
Accordingly, she concluded that she had no jurisdiction to hear a dispute in relation to the severance payment Mr Farrell was entitled to receive upon the termination of his employment because as a former employee, Mr Farrell was limited to those matters referred to in s29(1A) and they did not include a dispute in relation to severance pay, unless it was payable consequent upon termination as a result of redundancy. As I have said, it had earlier been found that Mr Farrell's employment was not terminated as a result of redundancy
Mr Farrell appealed to the Full Bench of the Commission. On 18 September 2001, it dismissed the appeal and confirmed the Commissioner's decision, for reasons it published. The Full Bench agreed with the Commissioner that Mr Farrell's employment had not been terminated as a result of redundancy. Mr Farrell did not seek to argue that issue before me.
The Full Bench said that the scheme of the Act is such that the broad jurisdiction of the Commission is found in s19, which must be read in the context of the definition of "industrial matter" in s3(1). The Full Bench agreed with the Commissioner that as s19 was prefaced by the words "Subject to this Act", the section must be read in conjunction with the whole of the Act. It then noted that having established the broad jurisdiction, the Act went on in numerous areas to identify which organisation or persons may make various applications to the Commission. The Full Bench instanced the following as examples.
· Under s24(2), an application to vary an award to be heard by a single Commissioner may be made to the Commission by certain organisations of private employers, an employee organisation, the Tasmanian Trades and Labour Council, a controlling authority of State employees or the Minister.
· Under s25(2), an application for an award, which by s35(1) must be determined only by the Full Bench, may be made to the Commission by the bodies or persons referred to in s24(2).
· Section 27, subject to its detailed provisions, allows the Minister, the Commonwealth Minister or an organisation registered under PtV to intervene in any proceedings before the Commission.
· Section 29 (in its form at the time Mr Farrell made his application), related to hearings for settling disputes. It provided, in subs(1), that a registered organisation, employer, employee or the Minister might apply for a hearing before a Commissioner in respect of an industrial dispute. With particular relevance to this case, subs(1A) provided that a former employee might apply for a hearing before a Commissioner in respect of an industrial dispute relating to the termination of employment of the former employee, the severance pay in respect of employment of the former employee terminated as a result of redundancy or a breach of an award or a registered agreement involving the former employee. Under subs(1C), the Secretary might apply for a hearing before the Commissioner in respect of an industrial dispute relating to a breach of an award or a registered agreement.
· Under s43(1), the Secretary, an employer or an organisation with members subject to an award may apply to the President for a declaration on how any provision of that award is to be interpreted.
· Under s55, an employee organisation may enter into an industrial agreement with an employer organisation or any employer or group of employers with respect to an industrial matter, the agreement may be filed with the Registrar if the parties agree, and the Registrar is to refer the agreement to the President who in turn is to refer the agreement to a Commissioner for a hearing.
· Under s61(1), where the President is of the opinion that it is desirable to do so for the purpose of resolving an industrial matter concerning two or more parties, he may at the written request of all of those parties, appoint a Commissioner to conduct an arbitration in respect of that industrial matter.
· Under s70, an appeal may be made to the Full Bench against certain decisions or orders of a Commissioner or the Registrar by specified persons, depending on the circumstances, those persons being an organisation, the Minister, the party who applied for the hearing, the party to whom the order related and any party who appeared at the hearing to which the decision related.
The Full Bench considered that in each and every case the Act clearly specified who might bring an application before the Commission, which differed in each case, and it concluded that this represented the conscious will of the Parliament. The Act did not give to the Commission a discretion to determine which of the matters falling within s19 would be heard by it. The Full Bench stated that it accepted that Mr Farrell's application would have constituted an "industrial matter" if it had been lodged by, say, an existing employee or an organisation.
Before the Commissioner at first instance, Mr Farrell submitted that his application for severance pay was within s29(1A)(a), as an application by a former employee for a hearing in respect of an industrial dispute relating to the termination of employment of a former employee. The Commissioner pointed out that his written application form purported to be made under par(b), as relating to severance pay in respect of employment of a former employee terminated as a result of redundancy. Mr Farrell then pointed out that it had not been appropriate for him to tick any of the boxes as none of the words opposite them strictly applied to what he was seeking. The pro forma application form provided by the Commission for his use had only provided for a tick, in the case of an application with regard to a dispute relating to the termination of employment of a former employer (see s29(1A)(a)), if that dispute related to "alleged unfair termination of employment". Paragraph (a) did not include the words "alleged unfair". As none of the three alternatives on the form applied to his case, he had been uncertain as to which box he should tick, but decided that the dispute he was raising was nearest to the "Yes" box applicable to s29(1A)(b) and so ticked it. The Commissioner had made it clear that she regarded s29(1A)(a) as only applying to an industrial dispute relating to unfair termination of employment of a former employee, notwithstanding that the word "unfair" did not appear in it. She asked Mr Farrell to decide whether or not he wished to amend his application. He declined to do so. It is apparent that he felt that he was being forced to elect between one of three inappropriate alternatives under s29(1A) as specified in the form and it is also apparent that it did not occur to him to seek to amend so as to express that his application was in respect of an industrial dispute relating to termination, and not unfair termination, of his employment. In any event, it was the Commissioner's view that without a claim of unfairness in the termination, it would have been pointless for him to do so.
Mr Farrell pointed out to the Commissioner and the Full Bench that the Commission was required by s20(1), when exercising its jurisdiction, to act according to equity, good conscience and the merits of the case without regard to technicalities or legal forms. The Full Bench accepted that if jurisdiction clearly existed but an applicant, through inexperience or lack of knowledge, was struggling to frame the application in appropriate terms, then it was the duty of the Commission to assist. It then considered the question whether only unfair termination was being referred to in par(a) of subs29(1A). It was of the view that a former employee could not bring himself within the opening words of the meaning of "industrial matter" of s3(1), that is, within the expression "any matter pertaining to the relations of employers and employees". It referred to that part of the meaning in subpar(a)(iii), that stated that the expression included the reinstatement or re-employment of an employee or a former employee who had been unfairly dismissed. Its conclusion from that was that the only industrial dispute that might be considered under s29(1A)(a) was a dispute relating to an alleged unfair dismissal.
The Full Bench held that regardless of technicalities and matters of form, the Commission could not act without jurisdiction and there had been no jurisdiction to hear what Mr Farrell wanted to be heard, once the issue of termination as a result of redundancy had been determined adversely to him.
The grounds of the order obtained by Mr Farrell on 22 October 2001 were that "there is no legal impediment to the hearing of the matter by the Tasmanian Industrial Commission and it was wrong to find otherwise" and that "the Tasmanian Industrial Commission has a public duty to hear the matter."
The general jurisdiction of the Commission is to be found in s19. It is a jurisdiction to hear and determine any matter arising from, or relating to, an industrial matter. However, the exercise of that jurisdiction is expressed to be "subject to this Act". The section does not explain who may invoke the Commission's jurisdiction. That is to be found in other places. Individuals do not have an unlimited right to invoke the jurisdiction. They must be able to bring their case within some other provision of the Act, and for the purposes of this case, s29 is the material one.
Section 29(1) authorises an organisation, employer, employee or the Minister to apply to the President for a hearing before a Commissioner in respect of an industrial dispute. However, when he made his application on 29 November 2000, Mr Farrell was not an employee so far as concerned any industrial dispute he wished to have heard. The relevant employment had been terminated over two years before, on or about 14 September 1998. He therefore had no right to invoke the Commission's jurisdiction under s29(1).
Mr Farrell submitted to me that his application of 20 November 2000 to the President was authorised by s29(1A)(a) as an application by a former employee for a hearing before a Commissioner of an industrial dispute relating to the termination of employment of the former employee. I do not agree. The dispute did not relate to the termination of his employment. There was no dispute between him and his former employer relating to the termination. I find support for my view in the judgment of Zeeman J as a member of the Full Court in New Town Timber & Hardware Pty Ltd v Gurr (1995) 5 Tas R 71 at 113. His Honour was considering the extended meaning of "industrial dispute" as it then was in s3(1) and the question whether a disputed claim of a former employee for compensation consequent upon his dismissal amounted to "a dispute relating to … the … dismissal". His Honour held: "The dispute concerns a demand for a payment of a sum of money made subsequent to the dismissal. The dispute does not relate to the dismissal because it does not seek to call the dismissal into question." My view is also supported by the provisions of s29(1A)(b) which authorise a former employee to make an application "in respect of an industrial dispute relating to … severance pay in respect of employment of the former employee terminated as a result of redundancy". A reasonable inference may be drawn that a former employee may only claim severance pay if his or her employment was terminated as a result of redundancy, and not if it was terminated for some other reason. As Mr Farrell did not seek to challenge the finding of the Commissioner and the Full Bench that his employment had not been terminated as a result of redundancy, he had no right to seek severance pay on any other basis before the Commission.
Mr Farrell also relied on the provisions of s20(1)(a), that in the exercise of its jurisdiction, the Commission must "act according to equity, good conscience and the merits of the case without regard to technicalities or legal forms". They do not assist him. They might have done so if he was entitled to invoke the Commission's jurisdiction but misstated an aspect of the claim in his form of application, but the provisions cannot give him a right to invoke the Commission's jurisdiction if he has no such right as a matter of law. He also relied on s20(3) which provides that in the exercise of its jurisdiction under the Act, the Commission is not restricted to the specific claim made or to the subject matter of the claim. But that reliance is met by the same answer, that is to say that the provision does not give to him a right to invoke the Commission's jurisdiction he did not have otherwise.
It is therefore my opinion that once Mr Farrell had lost his argument that his employment was terminated as a result of redundancy, he had no right to seek an order from the Commission that he be paid severance pay as a result of the termination.
He is not left without redress. He is entitled to pursue his claim, in the form of an action for money due under a term of his contract of employment, in a court.
For the reasons I have expressed, the order of 22 October 2001 will be discharged.
0
1