Robin Beadon Liddell and Cheryl Lembke t/as Cheryls Unisex Salon Allan Craig Gibson v Bosmac Pty Limited

EMPLOYMENT LAW - Termination of employment - Claim for unlawful termination - Issue whether New South Wales law provides an adequate alternative remedy to that provided under the Industrial Relations Act that satisfies the requirements of the Termination of Employment Convention - Nature of the Court's obligation in relation to this issue - Nature of "adequate alternative remedy" - Whether the remedy should be compared with the Convention as well as the Industrial Relations Act - Time as at which the existence of an adequate alternative remedy is to be determined - Effect of existence of a right to apply for an extension of time in another jurisdiction - Nature of the remedies available under New South Wales law - Relationship between remedies available and the circumstances under which they may be granted - Nature of the rights protected under Industrial Relations Act - Significance of the fact that it makes termination in breach of its provisions unlawful - Scope of Court's discretion to grant remedies - Relevance of New South Wales rules re costs and onus of proof - Relevance of exclusion from New South Wales system of case where a remedy is available under "another Act or a statutory instrument".

Industrial Relations Act 1988, ss.170DB, 170DC, 170DD, 170DE, 170DF,170DG, 170EA, 170EB, 170EC, 170EE.
Acts Interpretation Act 1901, s.33/2A.
Industrial Relations Act 1991 (NSW), ss.245, 246, 249, 250, 252 and 254.
Interpretation Act 1987 (NSW), s.65.

ROBIN BEADON LIDDELL v CHERYL LEMBKE t/as CHERYLS UNISEX SALON
No. NI.200 of 1994

AND

ALLAN CRAIG GIBSON v BOSMAC PTY LIMITED
No. NI.380 of 1994

CORAM:       WILCOX CJ, KEELY & GRAY JJ
PLACE:       SYDNEY
DATE:        15 DECEMBER 1994

IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA ) No. NI. 200 of 1994
NEW SOUTH WALES DISTRICT REGISTRY)

BETWEEN: ROBIN BEADON LIDDELL

Applicant

AND:CHERYL LEMBKE t/as CHERYLS UNISEX SALON

Respondent

CORAM:    WILCOX CJ, KEELY & GRAY JJ
PLACE:    SYDNEY
DATE:     3 NOVEMBER 1994

MINUTES OF ORDER

THE COURT ORDERS THAT:

The Notice of Motion be dismissed.

The principal proceeding be set down for a hearing before a Judicial Registrar on the earliest available date.

Note:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA ) No. NI.380 of 1994
NEW SOUTH WALES DISTRICT REGISTRY)

BETWEEN:ALLAN CRAIG GIBSON

Applicant

AND:BOSMAC PTY LIMITED

Respondent

CORAM:    WILCOX CJ, KEELY & GRAY JJ
PLACE:    SYDNEY
DATE:     3 NOVEMBER 1994

MINUTES OF ORDER

THE COURT ORDERS THAT:

The Notice of Motion be dismissed.

The principal proceeding be set down for a hearing before a Judicial Registrar on the earliest available date.

Note:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT    )
  )
OF AUSTRALIA  )    NI 200 of 1994
  )    NI 380 of 1994
NEW SOUTH WALES DISTRICT REGISTRY    )

B E T W E E N :

ROBIN BEADON LIDDELL

Applicant

- and -

CHERYL LEMBKE Trading as
CHERYL'S UNISEX SALON

Respondent

B E T W E E N :

ALLAN CRAIG GIBSON

Applicant

- and -

BOSMAC PTY. LIMITED

Respondent

CORAM: WILCOX CJ, KEELY & GRAY JJ
PLACE: SYDNEY

DATE: 15th December 1994

REASONS FOR JUDGMENT

GRAY J.

The nature of the proceedings.

A question of law was referred to a Full Court in each of two proceedings, pursuant to s. 416(1)(a) of the Industrial Relations Act 1988. In each case, the question is stated in the following terms:
"Whether in the circumstances stated above there is available to the applicant under the Industrial Relations Act 1991 (NSW) an adequate alternative remedy under existing machinery that satisfies the requirements of the termination of employment convention?"

The reference to "the circumstances stated above" is a reference to an agreed statement of facts filed in each proceeding. Each applicant was employed by his respective respondent from a date in 1988 until a date after 30th March 1994. The latter date is when the relevant provisions of the Industrial Relations Reform Act 1993 came into operation. The terms of employment of each applicant were governed by an award made or continued in operation under the Industrial Relations Reform Act 1991 (NSW) ("the NSW Act"). Each applicant was dismissed by his employer with one week's pay in lieu of notice. Each applicant applied to this Court, pursuant to s. 170EA of the Industrial Relations Act 1988 ("the federal Act") for a remedy in respect of termination of his employment.

The questions of law referred for the opinion of the Full Court arise because of s. 170EB of the federal Act, which provides as follows:-

"The Court must decline to consider or determine an application under section 170EA if satisfied that there is available to the employee by or on whose behalf the application was made an adequate alternative remedy, in respect of the termination, under existing machinery that satisfies the requirements of the Termination of Employment Convention."

The relevant provisions of the federal Act and of the NSW Act are summarised and, where necessary, set out in the reasons for judgment of the Chief Justice and Keely J, which I have read in draft form. As a consequence, it is unnecessary for me to set out the legislation.

Although the agreed facts did not descend to detail, argument proceeded on the footing that each applicant would have been entitled to commence a proceeding in the Industrial Relations Commission of New South Wales, pursuant to s. 246 of the NSW Act, within fourteen days after the termination of his employment. Argument was conducted on the footing that no such proceeding had been commenced by either applicant.

What must satisfy the Convention?

A question of construction of s. 170EB of the federal Act arises at the outset. It has been the subject of a conflict of authority at first instance in this Court. On the one hand, in Wylie v. Carbide International Pty. Ltd. (Keely J., 13th July 1994, unreported) and Australian Municipal, Administrative, Clerical and Services Union v. Gold Coast Community Options Association Incorporated (1994) 124 A.L.R. 505, it appears to have been accepted that the words "that satisfies the requirements of the Termination of Employment Convention" qualify only the noun "machinery". On the other hand, in Grout v. Gunnedah Shire Council (1994) 125 A.L.R. 355), the Court tested the provisions of the NSW Act dealing with remedies against the Termination of Employment Convention ("the Convention"). In other words, the words "that satisfies the requirements of the Termination of Employment Convention" were regarded as qualifying the noun "remedy". On this view, this Court would only decline to consider or determine an application under s. 170EA if satisfied that the relevant employee had available to him or her a remedy that was (a) an alternative, (b) adequate, (c) in respect of the relevant termination, (d) under existing machinery and (e) capable of satisfying the requirements of the Convention.

In my view, the latter construction is plainly correct. The object of the enactment of division 3 of part VIA of the federal Act (which was effected by the Industrial Relations Reform Act 1993) is described in s. 170CA(1) as to give effect, or further effect, to the Convention and the Termination of Employment Recommendation 1982. Under the terms of the Convention itself (the English text of which appears in schedule 10 to the federal Act), the Convention came into force for Australia twelve months after the date on which Australia's ratification of it was registered. See Article 16 clause 3. Australia's ratification was registered on 26th February 1993. At least by 26th February 1994, and certainly thereafter, Australia had an international obligation to bring into effect the terms of the Convention.

To the extent to which there existed at that time, or might thereafter exist, legislation of a state which conformed to the requirements of the Convention, it was unnecessary for the Parliament of the Commonwealth to exercise its legislative power under s. 51(xxix) of the Constitution to bring into effect the Convention. The clear purpose of s. 170EB is to substitute for the federal Act any such state legislation, so far as it might affect an individual case. It is therefore only state legislation which complies with the Convention in its entirety, and not merely as to its machinery, which is to be so substituted. It would have been an abdication of Australia's international obligations and would have given rise to an extraordinary deficiency in the legislative scheme if the Commonwealth Parliament had legislated to substitute for its own enactment state legislation which complied with the Convention only as to machinery, and not as to substance.

In many cases, the result may not be different whichever construction of s. 170EB is adopted. Most of the deficiencies which operate to make a state system inadequate to satisfy the requirements of the Convention will also operate to mean that the same system makes available something less than an adequate alternative remedy. Nonetheless, the possibility exists that there might be a remedy which can properly be described as an adequate alternative to those offered by the federal Act but which does not comply with the Convention. The existence of such a remedy would not require this Court to decline to consider or determine an application.
The qualitative difference between the remedies.

The remedy which each of the present applicants could have sought pursuant to the NSW Act constitutes neither an adequate alternative to the remedies offered by the federal Act nor a remedy satisfying the requirements of the Convention. An examination of the relevant provisions of the NSW Act discloses that the Industrial Relations Commission of New South Wales exercises the function of determining whether, in all of the circumstances, a particular dismissal of an employee was or would be harsh, unreasonable or unjust. Section 249 of the NSW Act specifies various factors which the Commission "may, if appropriate, take into account". They include "such other matters as the Commission considers relevant". The Commission is empowered to order reinstatement or re-employment of the dismissed employee, together with payment of lost remuneration, or to order compensation if reinstatement or re-employment would be impracticable. It will only grant these remedies upon a consideration of the whole of the circumstances attending the dismissal concerned, and its judgment as to whether those circumstances render the dismissal harsh, unreasonable or unjust.

By contrast, the functions of this Court are specified with much greater precision. Sub-division B of division 3 of part VIA of the federal Act contains a series of express prohibitions. The words "an employer must not terminate an employee's employment" appear in each section in the sub-division, with the exception of s. 170DA, which deals with the sub-division's commencement. Those words are followed by the prescription of the circumstance or circumstances in which the employer must not terminate the employment. Thus, s. 170DB reflects the requirement of article 11 of the Convention that an employee be entitled to a reasonable period of notice or compensation in lieu thereof unless guilty of serious misconduct and that of article 12 for a severance allowance or other separation benefits based on length of service and level of wages. Section 170DC enacts the obligation in article 7 for the provision to the employee of an opportunity to defend himself or herself against allegations made about his or her conduct or performance. Section 170DE enacts the requirement for a valid reason, or valid reasons, connected with the capacity or conduct of the employee or based on the operational requirements of the undertaking, establishment or service, found in article 4 of the Convention. The various reasons proscribed by s. 170DF reflect those found in articles 5 and 6 of the Convention.

It must be emphasised that the Court is not given general jurisdiction to judge the fairness or otherwise of a termination of employment. It is given specific jurisdiction to determine whether a contravention of sub-division B has occurred. It is a contravention of sub-division B which will bring into operation the remedies provisions in s. 170EE. Contravention of a single provision will result in the Court turning its attention to remedies.

It is in that proposition that the essential qualitative difference lies between the provisions of the NSW Act and the provisions of the federal Act. Even if faced with a clear contravention of a prohibition laid down in the Convention, the Industrial Relations Commission of New South Wales would not be required to turn its attention to the question of remedy unless it were satisfied that, in all the circumstances, the dismissal concerned was harsh, unreasonable or unjust. The contravention could be submerged in other circumstances which would override it in the determination whether the dismissal could be characterised as harsh, unreasonable or unjust. In contrast, the Court cannot disregard or treat as outweighed any contravention of the relevant provisions of sub-division B. If it finds such a contravention, it must proceed to deal with the question of remedy.

It will be clear from what I have said that I also reject the argument that what s. 170EB requires is a mere comparison between remedies. It is impossible to separate a remedy from the circumstances in which it can be granted.

Is there a discretion to refuse a remedy?

Counsel for the respondents and counsel for the intervener sought to overcome this difficulty by suggesting that the Court nevertheless had a discretion to grant or refuse a particular remedy. They argued that this discretion is to be exercised in all the circumstances of a particular termination of employment. Thus, they contended that an employer could meet a claim for a remedy under the federal Act by relying on facts unknown to it at the time of the termination but which, if known, would have justified the termination.

This argument is plainly at odds with the terms of the federal Act. It is true that the use of the word "may" in the legislation empowering the Court to grant remedies is to be regarded as discretionary. This is the effect of s. 33(2A) of the Acts Interpretation Act 1901, which came into operation on 18th December 1987, a date prior to the enactment of the Industrial Relations Reform Act 1993. A discretion is nevertheless required to be exercised "bona fide having regard to the policy and purpose of the Act conferring the power". See Bowling v. General Motors-Holden's Pty. Ltd. (1980) 50 F.L.R. 79, at p. 94. In that case, the Full Court of the Federal Court of Australia dealt with the exercise of a power of reinstatement, consequent upon conviction under s. 5 of the Conciliation and Arbitration Act 1904. (The equivalent provision in the federal Act is s. 334). At pp. 90-95, the Full Court, relying on authorities such as Finance Facilities Pty. Ltd. v. Federal Commissioner of Taxation (1971) 127 C.L.R. 106 and Ward v. Williams (1955) 92 C.L.R. 496, provided useful guidance on the proper construction of the word "may" when that word is used in the grant of a discretionary power.

Thus, when this Court finds that a contravention of a provision of sub-division B (other than s. 170DB or 170DD) has occurred in relation to a termination of employment, it will ordinarily grant the remedy of reinstatement specified in s. 170EE(1). It does not possess an unfettered discretion to refuse that remedy upon any view as to the relative merits of the parties. The only circumstance in which it can refuse to grant the remedy is if both forms of reinstatement specified are "impracticable". The word "impracticable" means "that cannot be carried out, effected, accomplished, or done; practically impossible" (Oxford English Dictionary) or "that cannot be put into practice with the available means" (Macquarie Dictionary). Attention is directed to the practicability of the remedy, not to its practicality. Section 170CB of the federal Act provides that an expression used in division 3 of part VIA has the same meaning as in the Convention. Article 10 of the Convention uses the expression "not .... practicable". The French text of the Convention (which is equally authoritative with the English) renders the relevant part of article 10 as "n'estiment pas possible dans les circonstances", which I understand to translate directly as "do not consider it possible in the circumstances". The use of the French word "possible" shows the extent to which the Court must go before it can refuse to reinstate.

If s. 170EE(1) of the federal Act were to be construed as giving the Court an overriding discretion to refuse to order reinstatement in circumstances where reinstatement was practicable, the employee concerned would have no remedy at all when the discretion was exercised against him or her. Pursuant to s. 170EE(2), the remedy of compensation is available only "If the Court thinks ......that the reinstatement of the employee is impracticable ....". It is extremely unlikely that the parliament intended there to be a discretion not to order reinstatement, the exercise of which against the employee must result in the employee receiving nothing.

Reinstatement is therefore required if it can be done. If the employer is still employing or able to employ someone to perform the same or similar tasks, then reinstatement will be practicable. Its practicability does not depend on notions of loss of confidence in the employee. Nor does it depend on the existence of grounds which would have justified termination but which were not relied on, because unknown to the employer at the time of the termination. The common law relating to contracts of employment is not imported into the provisions of the federal Act which implement the Convention. The Convention itself may bind countries which do not have systems of regulation of employment based on the law of contract, or which have different contract laws. See Association of Professional Engineers, Scientists and Managers Australia (APESMA) v. Skilled Engineering Pty Ltd. (1994) 122 A.L.R. 471, at p. 482. The notion that equitable remedies of specific performance of a contract of employment would always be refused if the mutual confidence considered necessary to the employment relationship had broken down has nothing to do with the question whether reinstatement is "impracticable". Nor can a previous repudiation of the contract, which was unknown to the employer, but which has since come to light, render reinstatement "impracticable". If that were to occur, it would compound the contravention of sub-division B which the Court will have found to exist. An employee would, in effect, be deprived of employment without having been given the opportunity to defend himself or herself which is required by s. 170DC.

If it grants the remedy of reinstatement, the Court is required also to grant the remedy of requiring the employer to reimburse the employee for lost remuneration. Only if reinstatement is "impracticable" is the Court to turn its attention to the remedy of compensation. In such a case, the Court will not have an unfettered discretion to refuse compensation. Nor will it be able to adjust the measure of compensation according to its opinion of the conduct of the employee. It is required to order the employer to compensate the employee as far as possible, up to the limit specified, in respect of any loss which the employee has suffered by reason of the termination. It is to be noted that the limit specified is a limit on what the Court can order by way of compensation, not a limit on what the employee can receive from the employer. Thus, even if an employer has already paid a sum of money designed to compensate the employee for dismissal, if the employee is entitled to greater compensation, the Court must award it up to the limit specified.

It might be argued that the remedies which the Industrial Relations Commission of New South Wales is empowered to grant are subject to similar considerations. The word "may" is used in the relevant provisions of the NSW Act and is to be interpreted as discretionary, in accordance with s. 9(1) of the Interpretation Act 1987 (NSW). Compensation is to be awarded if reinstatement or re-employment would be "impracticable". It is undoubtedly the case that the Commission could not arbitrally refuse to grant a remedy. It only comes to consider the question of remedies, however, if it finds, upon an examination of all the circumstances of a dismissal, that the dismissal is properly characterised as harsh, unreasonable or unjust. By contrast, the Court comes to the question of remedies if it finds that a contravention of any one of the relevant provisions of sub-division B of division 3 of Part VIA of the federal Act has occurred.

For these reasons, while the NSW Act remains in its present form, it cannot offer an adequate alternative remedy to that obtainable in this Court, or a remedy which satisfies the requirements of the Convention. There can be no occasion for the Court to decline to consider or determine an application under s. 170EA of the federal Act, even if the employee concerned has available to him or her a remedy under the NSW Act.

The time at which the issue is considered.

This conclusion is sufficient basis upon which to answer each of the questions of law referred to the Full Court in the negative. Other issues were also argued. In deference to the arguments, and because those issues are also relevant to the answers to be given to the questions of law, I proceed to deal with those issues. The first relates to the use of the present tense in s. 170EB. That issue is bound up with the question whether s. 170EB is a jurisdictional provision.

If parliament had wished to deprive this Court of jurisdiction whenever an employee whose employment had been terminated by his or her employer had available, at the date of the termination, or at the date of commencement of a proceeding in this Court, an adequate alternative remedy, it would have been very easy for parliament to have said so. The parliament could easily have chosen language to focus on the time of the termination, or the time when the employment came to an end, or the date of commencement of a proceeding in this Court. It would also have been easy to provide that the Court had no jurisdiction. Instead, language was chosen which focuses on the Court dealing with the merits of an application ("consider or determine") and on the availability of an adequate alternative remedy at the time when the Court comes to consider the question ("there is available"). I do not regard this language as ambiguous. It cannot have been intended that an application should be defeated when an adequate alternative once existed, but has ceased to exist when the Court informs the applicant that the application will not be considered. When the Court comes to consider the merits of an application under s. 170EA, if the issue is raised of the availability of an adequate alternative remedy, the Court must then consider whether such a remedy is available to the employee at that time. If so, the Court must refrain from considering and determining the application.

More difficult issues arise if, at the time when the Court comes to consider the availability of an adequate alternative remedy, the employee concerned has a qualified right to apply for such a remedy. The choice lies between holding that such a qualified right does not amount to an adequate alternative and adjourning consideration of the application until such time as it is known whether the employee will be able to avail himself or herself of the alternative remedy. The question will arise most often in cases in which a time limit applicable to applications for the alternative remedy has expired, but the tribunal empowered to grant the alternative remedy is also empowered to enlarge the time. In such a case, the proper conclusion is that no adequate alternative remedy is available. An applicant should not be forced to undergo the uncertainty of an application to another tribunal, designed merely to ascertain whether he or she has the right to apply for the alternative remedy. In such a case, the Court cannot be "satisfied" that an adequate alternative exists.

This Court needs to offer to applicants certainty as to the fate of their applications. If it is known that the Court will ask itself whether there is then available an adequate alternative remedy when it comes to deal with the question and will not force applicants to pursue speculative applications or to institute and keep alive additional proceedings in other tribunals, that certainty will exist.

Must the Court raise the question itself?

It should also be noted that the Court is only obliged to decline to consider or determine an application under s. 170EB "if satisfied" that there is available an adequate alternative remedy. These words make it clear that there is an onus falling on the respondent to the application to raise the issue and to satisfy the Court of the availability of the other remedy. The Court is not obliged to inquire in every case as to whether such a remedy exists. On this point, I differ respectfully from the view taken by Spender J. in Australian Municipal, Administrative, Clerical and Services Union v. Gold Coast Community Options Association Incorporated (above).

Costs provisions.

If it came to a question of careful examination of the provisions of the NSW Act, in order to determine whether the remedy it offered could be characterised as an adequate alternative for the purposes of s. 170EB, then I am of the view that the presence of the provision in s. 252 of the NSW Act, under which an applicant can be ordered to pay costs if the Commission considers that he or she has failed unreasonably to agree to a settlement of the claim, is relevant to the question of adequacy. The prospect of being ordered to pay the costs of a proceeding is a daunting one for any employee; for a person whose employment has recently ceased, it is far more daunting. It is a possibility only available in this Court if the proceeding has been instituted vexatiously or without reasonable cause. Any circumstances wider than those in which an applicant might be ordered to pay costs will bear upon the adequacy of the remedy available to that applicant.

Onus of proof provisions.

Similarly, I am of the view that the absence of any provision casting onto the respondent any onus of proof is relevant to the question of adequacy. The provisions of s. 170EDA of the federal Act cast upon the employer the onus of proving a valid reason, for the purposes of s. 170DE(1) and the onus of disproving any of the particular reasons referred to in s. 170EF(1). These are matters involving the mind of the employer who has terminated the employment. To the extent to which the employee would be required to prove them, a remedy would be much less available, or much less adequate, than is the case if the employer bears the onus on those issues. A system which cast the entire onus of proof on the employee would not be an adequate alternative remedy, even if it were otherwise cast in the same terms as the relevant provisions of the federal Act.

Section 254 of the NSW Act.

If, at the end of the day, there were nothing else which prevented the provisions of the NSW Act being an adequate alternative remedy, s. 254 of the NSW Act would be sufficient to do so. It is that provision which requires the Industrial Relations Commission of New South Wales to reject an application if "another Act or statutory instrument provides for redress to the person, or for the holding of an inquiry, in relation to the dismissal or threatened dismissal" and proceedings have been commenced under the other Act or instrument which are not the subject of a written undertaking not to proceed. I do not accept that s. 254 is intended to refer only to New South Wales legislation. Even if the word "Act" is to be construed as referring only to an act of the parliament of New South Wales (and there is nothing in the Interpretation Act 1987 (NSW) to require that construction), then the phrase "statutory instrument" has clearly been chosen as a phrase of the widest possible meaning. It is not defined. The word "instrument" is defined in s. 3(1) of the Interpretation Act 1987 (NSW)in a way which does not refer to New South Wales. If it did, the provisions of s. 67(2) would be nonsense; s. 3(1) is not expressed to give way in the face of a contrary intention. The purpose of s. 254 of the NSW Act would be defeated easily if a person could bring a proceeding under legislation other than New South Wales legislation and maintain that proceeding concurrently with a proceeding under the NSW Act. It follows that the remedy ordinarily made available by the NSW Act is not available to an employee who has made an application to this Court pursuant to s. 170EA of the federal Act, unless that person is prepared to undertake not to proceed with that application. This Court cannot compel the giving of such an undertaking.

Conclusion.

For all of these reasons, the provisions of the NSW Act cannot constitute an adequate alternative remedy, under existing machinery, that satisfies the requirements of the Convention, in relation to the termination of the employment of either applicant. In each proceeding, the question of law was answered in the negative accordingly.

I certify that this and the preceding nineteen (19) pages are a true copy of the reasons for judgment of his Honour Justice Gray

Associate:

Date:

IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )

)No. NI.200 of 1994

NEW SOUTH WALES DISTRICT REGISTRY )

BETWEEN:ROBIN BEADON LIDDELL

Applicant

AND:CHERYL LEMBKE t/as CHERYLS UNISEX SALON

Respondent

AND

No. NI.380 of 1994

BETWEEN:ALLAN CRAIG GIBSON

Applicant

AND:BOSMAC PTY LIMITED

Respondent

CORAM:WILCOX CJ, KEELY & GRAY JJ

PLACE: SYDNEY
DATE: 15 DECEMBER 1994

REASONS FOR JUDGMENT

WILCOX CJ and KEELY J: Notices of Motion in two unlawful termination proceedings were referred to a Full Court pursuant to s.416 of the Industrial Relations Act 1988. They raised the same question of law, so they were heard together. The question of law is an important one: whether New South Wales law provides to the applicant in the principal proceeding an adequate remedy in respect of the termination of his employment, alternative to that provided by the Industrial Relations Act, that satisfies the requirements of the Termination of Employment Convention? After the conclusion of the argument, the Chief Justice indicated that all members of the Court were of the opinion that the question should be answered in the negative. We all thought that, notwithstanding s.170EB of the Act, the Court had power to consider and determine the principal proceedings on their merits. The Chief Justice said the members of the Court would publish reasons in due course. There was no reason why, in the meantime, the principal proceedings should not proceed, so the Court directed they be set down for hearing before a Judicial Registrar on the earliest available dates. These are our reasons.

The application for leave to intervene

Before going to the substance of the matter we mention that, when the motions were called for hearing, Mr J N West QC and Mr P Newall of counsel appeared on behalf of the Crown in right of the State of New South Wales asking leave to intervene in them pursuant to s.470 of the Industrial Relations Act. Mr West explained that his client considered the Notices of Motion raised a question of major importance to the State industrial law system. Although his client's position would coincide with that to be propounded by counsel for the respondents, Mr R J Buchanan QC and Mr P M Kite, he sought the opportunity to put supplementary submissions. Mr Buchanan supported Mr West's application. The representatives of the applicants, Mr P Batley, solicitor for Mr Liddell, and Mr R Moore, counsel for Mr Gibson, did not oppose it.

The subject of intervention under s.470 was discussed by a Full Court consisting of Wilcox CJ, Keely and Ryan JJ in Re Boulton; Ex parte State of Victoria (16 November, not yet reported). We need not repeat or elaborate what we there stated. In the present case, Mr West came to court armed with written submissions. He assured us that his oral submissions would be supplementary to those of Mr Buchanan, rather than repetitive. The Court granted leave.

The facts

The relevant facts were agreed between the parties. They may be shortly stated.

In matter NI.200 of 1994 the applicant is Robin Beadon Liddell. He was employed by the respondent, Cheryl Lembke trading as Cheryl's Unisex Salon, from 28 January 1988 until 14 April 1994. Mr Liddell was employed under the terms of an award made by the Industrial Commission of New South Wales, the Hairdressers etc (State) Award. A copy of the award was attached to the Agreed Statement of Facts but it is common ground that nothing depends on its terms. They were not referred to in argument.

When Mr Liddell's employment was terminated, he was given one week's pay in lieu of notice. On 29 April 1994 he applied to this Court for a declaration that the termination contravened Division 3 of Part VIA of the Industrial Relations Act and an order for payment of compensation. He did not seek reinstatement of employment.

The applicant in matter NI.380 of 1994 is Allan Craig Gibson. He was employed by the respondent, Bosmac Pty Limited, from 21 March 1988 to 30 May 1994. The terms of his employment were governed by a New South Wales award, the Metal and Engineering Industry (New South Wales) (State) Award. Once again, nothing turns on the award. On 30 May 1994 Mr Gibson's employment was terminated by his employer. He was given one week's pay in lieu of notice. Mr Gibson filed an Application in this Court on 10 June seeking a declaration that the termination of his employment contravened Division 3 of Part VIA of the Act, reinstatement, compensation and such other orders as will put him in the same position (as nearly as can be done) as if his employment had not been terminated.

The Commonwealth legislation

It is convenient to commence discussion of the legal issues by mentioning features of the Commonwealth legislation. Part VIA of the Industrial Relations Act is entitled "Minimum Entitlements of Employees". It was added to the Act by the Industrial Relations Reform Act 1993, which took effect on 30 March 1994. Division 3 of that Part deals with termination of employment. Subdivision A states the object of the Division and contains some interpretation and exclusionary provisions. The revealed object is to give effect, or further effect, to the Termination of Employment Convention, which is annexed to the Act as Schedule 10, and the Termination of Employment Recommendation (Schedule 11): see s.170CA. Both the Convention and the Recommendation were adopted by the General Conference of the International Labour Organisation on 22 June 1982. The Convention was ratified by Australia on 26 February 1993. Section 170CB says that an expression has the same meaning in Division 3 of the Act as in the Convention. Section 170CC and 170CD provide for the exclusion of certain categories of employees from the protection conferred by Division 3. It is not necessary to discuss those categories. Neither of the applicants falls within them.

Subdivision B of Division 3 specifies the requirements for a lawful termination of employment. There are six limitations on an employer's right to terminate an employee's employment. First, notice must be given: see s.170DB. This section includes a table stating the required period of notice. The basic period depends upon the length of the employee's continuous service with the employer. The table adds a week where the employee is over 45 years old and has completed at least one year's continuous service.

Section 170DB(1)(b) excepts from the notice requirement the case of an employee guilty of serious misconduct. But the second requirement of Subdivision B limits resort to that exception. Section 170DC provides that an employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless the employee has been given the opportunity to defend himself or herself against the allegations made or the employer could not reasonably be expected to give the employee that opportunity. It will be seen that the section introduces the concept of procedural fairness into statutory employment law. Employees, other than excluded employees, now have a legal right to be treated fairly. If an employee is denied procedural fairness, it will generally be unlawful to dismiss him or her, even for serious misconduct or significant deficiencies.

The third requirement of Subdivision B relates to redundancy situations. It applies where "an employer decides to terminate the employment of 15 or more employees for reasons of an economic, technological, structural or similar nature, or for reasons including such reasons". In such cases, the employer must notify the Commonwealth Employment Service before terminating an employee's employment: see s.170DD.

The fourth requirement is contained in s.170DE. It attracted particular attention in the argument. So we will set it out in full:

"170DE(1)An employer must not terminate an employee's employment unless there is a valid reason, or valid reasons, connected with the employee's capacity or conduct or based on the operational requirements of the undertaking, establishment or service.

(2)A reason is not valid if, having regard to the employee's capacity and conduct and those operational requirements, the termination is harsh, unjust or unreasonable. This subsection does not limit the cases where a reason may be taken not to be valid."

Section 170DF(1) contains the fifth limitation on an employer's right to terminate an employee's employment. Subject to the qualifications contained in subss.(2) and (3), this subsection forbids termination for any one or more of the following reasons, or for reasons including any one or more of them:

"(a)temporary absence from work because of illness or injury;

(b)union membership or participation in union activities outside working hours or, with the employer's consent, during working hours;

(c)non-membership of a union or of an association that has applied to be registered as a union under the provisions of this Act;

(d)seeking office as, or acting or having acted in the capacity of, a representative of employees;

(e)the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;

(f)race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;

(g)absence from work during maternity leave or other parental leave."

Finally, s.170DG forbids an employer to terminate an employee's employment in contravention of an order of the Australian Industrial Relations Commission ("the AIRC") made under s.170FA of the Act.

Subdivision C of Division 3 provides remedies in respect of an unlawful termination. It is not necessary to mention all its provisions. Section 170EA(1) confers on an employee a right to apply to the Court "for a remedy in respect of termination of his or her employment". The application may be brought on the employee's behalf by a trade union: see s.170EA(2). The application must be brought within 14 days of the employee's receipt of any written notice of termination, or such further period as the Court on application allows: see s.170EA(3). Where there was no written notice, there is no time limit for an application.

The next section gives rise to the present motions:

"170EB.The Court must decline to consider or determine an application under section 170EA if satisfied that there is available to the employee by or on whose behalf the application was made an adequate alternative remedy, in respect of the termination, under existing machinery that satisfies the requirements of the Termination of Employment Convention."

We will return to the section in due course. Because of one submission put to us, we should mention s.170EC. That section provides that the Court "is not to consider the merits of an application under section 170EA" unless it has referred the matter to the AIRC for conciliation and the Commission has certified that it has been unable to settle the matter or "the Court is satisfied that it is not appropriate so to refer the matter".

An amendment made to the principal Act by the Industrial Relations Amendment Act (No.2) 1994 (Act No. 97 of 1994), effective from 30 June 1994, substituted for the original s.170EE a new section, dealing with remedies the Court may grant. Both the present applicants filed their Applications before the amendment. The relief sought by them reflects the wording of the earlier section. But it is not necessary to set out or discuss that wording because the question whether the New South Wales legislation provides an adequate alternative remedy must be addressed in relation to the remedies now available, not those that existed before 30 June. The primary remedies now available, in respect of a termination of employment in contravention of Division 3, other than s.170DB or s.170DD, are stated in the new s.170EE(1):

"(a)an order requiring the employer to reinstate the employee by:

(i)reappointing the employee to the position in which the employee was employed immediately before the termination; or

(ii)appointing the employee to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination; and

(b)if the Court makes an order under paragraph (a):

(i)any order that it thinks necessary to maintain the continuity of the employee's employment; and

(ii)an order requiring the employer to pay to the employee the remuneration lost by the employee because of the termination."

Subsection (2) provides an alternative remedy that applies "(i)f the Court thinks ... that the reinstatement of the employee is impracticable". In such a case "the Court may make an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate". Subsection (3) provides that, in working out the amount of the compensation for the purposes of subs.(2), "the Court is to have regard to the remuneration that the employee would have received, or would have been likely to have received, if the employer had not terminated the employment" but subject to some limitations of amount. Subsection (5) enables the Court to award damages in respect of a termination that contravenes s.170DB (the notice requirement).

Section 170EF relates to a contravention of s.170DD (the redundancy provision). The Court may impose a penalty on the employer and/or order the employer not to terminate the employment of employees pursuant to the decision, except as permitted by the order.

The New South Wales legislation

Section 315 of the Industrial Relations Act 1991 (NSW) establishes the Industrial Relations Commission of New South Wales. It consists of a President, Vice President, Deputy Presidents and Conciliation Commissioners. The Commission carries out many functions. One of them relates to what the Act calls "unfair dismissals". The provisions concerning unfair dismissals are contained in Part 8 of Chapter 3 of the Act (ss.245 to s.255).

Section 245(1) provides that the Part applies only to the dismissal or threatened dismissal of:

"(a)an employee for whom any conditions of employment are fixed by an award or agreement; or

(b)an employee of the Crown; or

(c)any other employee of a class prescribed by the regulations as a class of persons to whom this Part applies."

The Part does not apply to the dismissal or threatened dismissal of an employee who is a trainee or an apprentice "or who is declared by the regulations not to have the benefit of this Part, despite subsection (1)": see s.245(2). Although the matter was left unclear, we gathered the parties agreed that the application of the Part to Mr Liddell and Mr Gibson is not excluded by this subsection. We proceeded on that basis. Subsection (3) relates to public sector employees. It is not relevant.

Section 246 governs a person's entitlement to apply:

"246(1)If an employer dismisses, or threatens to dismiss, a person who is an employee of the employer and the person claims that the dismissal was, or that the threatened dismissal would be, harsh, unreasonable or unjust, the person (or an industrial organisation of employees on behalf of the person) may apply to the Commission for the claim to be dealt with under this Part.

(2)Any such application should be lodged with the Industrial Registrar not later than 21 days after, or (in the case of a threat of dismissal) may be lodged with the Industrial Registrar before, termination of the employment.

(3)The Commission may accept an application that is lodged out of time if the Commission considers there is a sufficient reason to do so.

(4)In deciding whether there is a sufficient reason, the Commission is to have regard to:

(a)the reason for, and the length of, the delay in lodging the application; and

(b)any hardship that may be caused to the applicant or the employer if the application is or is not rejected; and

(c)the conduct of the employer relating to the dismissal or threat of dismissal; and

(d)such other matters as the Commission considers appropriate."

The terms of s.246 are important. We will return to them. For the moment, it is sufficient to note that the 21 day time limit applies in all cases, whether the notice of termination was written or oral.

Section 247 requires the Commission to endeavour to settle claims by conciliation. Section 248 deals with the situation where conciliation fails. In that case "the Commission is to determine the claim by making an order under this Part". Section 249 provides that, in determining a claim:

"the Commission may, if appropriate, take into account:

(a)whether a reason for the dismissal or threatened dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to re-employ; and

(b)if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment; and

(c)whether a warning of unsatisfactory performance was given before the dismissal or threat of dismissal; and

(d)the nature of the duties of the applicant immediately before the dismissal or when the threat was made and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed; and

(e)whether or not the applicant requested reinstatement or re-employment with the employer; and

(f)such other matters as the Commission considers relevant."

The orders available to the Commission are stated in s.250:
"250(1)The Commission may determine a claim relating to dismissal by ordering the employer:

(a)to reinstate the applicant in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed; and

(b)if the Commission thinks fit, to pay to the applicant, within a specified time, an amount stated in the order that does not exceed the remuneration the applicant would, but for being dismissed, have received before being reinstated in accordance with the order.

(2)If the applicant has been dismissed and, when determining the claim, the Commission considers that it would be impracticable to reinstate the applicant, the Commission may order the employer;

(a)to re-employ the applicant, on terms and conditions determined by the Commission, in another position that the employer has available and that, in the Commission's opinion, is suitable; and

(b)if the Commission thinks fit, to pay to the applicant, within a specified time, an amount stated in the order that does not exceed the remuneration the applicant would, but for being dismissed, have received before being re-employed in accordance with the order.

(3)If the applicant has been dismissed and, in determining the claim, the Commission considers that it would be impracticable to make an order for reinstatement or re-employment, the Commission may order the employer to pay to the applicant, within a specified time, an amount of compensation not exceeding the amount of remuneration of the applicant during the period of 6 months immediately before being dismissed. If the applicant was on leave without full pay during any part of that period, the maximum amount of compensation is to be determined as if the applicant had received full pay while on leave.

(4)In determining a claim relating to a threat of dismissal, the Commission may order the employer not to dismiss the employee in accordance with that threat.

(5)When assessing any compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration that would have been payable if the applicant had succeeded in obtaining alternative employment."

Section 251 enables the Commission, in making a reinstatement order, to "order that the period of employment of the applicant with the employer is taken not to have been broken by the dismissal".

Two ancillary provisions, noted in argument, should be mentioned. They are ss.252 and 254:

"252The Commission may make an order for the payment of costs if it appears to the Commission to be just to do so, but only if:

(a)the Commission dismisses the application on the ground that it is frivolous or vexatious and makes the order against the applicant; or

(b)the Commission makes the order against a party the Commission considers to have unreasonably failed to agree to a settlement of the claim."

"254The Commission is required to reject an application relating to the dismissal, or threatened dismissal, of a person who is an employee if:

(a)another Act or a statutory instrument provides for redress to the person, or for the holding of an inquiry, in relation to the dismissal or threatened dismissal; and

(b)the person has commenced proceedings under the other Act or instrument or has not lodged with the application under this Act a written undertaking not to proceed under the other Act or instrument."

The nature of the Court's obligation

We are aware of five first instance decisions, by Judges of this Court, in relation to s.170EB. In chronological order they are Wylie v Carbide International Pty Ltd (Keely J, 13 July 1994, not reported), Australian Municipal, Administrative Clerical and Services Union v Gold Coast Community Options Association Incorporated ("Gold Coast")(1994) 124 ALR 505 (Spender J, 26 August 1994), Siddons v National Union of Workers' New South Wales Branch (Moore J, 29 August 1994, not reported), Grout v Gunnedah Shire Council (1994) 125 ALR 355 (Moore J, 30 September 1994) and Fryar v Systems Services Pty Ltd (von Doussa J, 28 October 1994, not reported). Some of these decisions discuss the nature of the obligation that s.170EB confers on the Court. This is a matter of substantial importance, in relation to which submissions were made to us. Accordingly, it is appropriate to say something about it before considering the detailed application of the section.

In Gold Coast Spender J allowed an intervener, the Crown in right of the State of Queensland, to argue that the case fell within s.170EB. Neither party wished to press that point. The respondent had raised the matter in its response to the applicant's claim but its counsel later withdrew this part of the response, his client apparently being content to have the case litigated in this Court. The applicants, who had chosen the venue, wished the Court to hear the case on its merits. Their counsel argued that the Court should not concern itself with s.170EB unless a party wished to assert its application. Spender J rejected this. He said at 507-508:

"The section is couched in imperative terms, unlike many provisions conferring a discretion on the court where alternative remedies are possible. Section 170EB uses the word "must". The submission on behalf of the applicants is that that imperative duty only arises should any party choose to assert that an adequate alternative remedy exists, it being said that it is only after the court makes enquiry into that assertion and reaches satisfaction as to the availability of an adequate alternative remedy that it must then decline to consider or determine an application under s.170EA.

In my opinion, the provisions of the statute law of Queensland are not a species of foreign law to be proved as a matter of fact or to be invoked only by a specific assertion concerning their applicability and content.

In the view I take of s.170EB, the Commonwealth Parliament has expressed an intention that if under the statutory regime of the various states dealing with questions of termination and reinstatement, an adequate alternative remedy in respect of the termination under existing machinery that satisfies the requirements of the Termination of Employment Convention exists, then an applicant is to seek that remedy in preference to having the question be the subject of determination by the Industrial Relations Court. The intention of Parliament, in short, is that if there is an adequate alternative remedy under state legislation, then this court should not deal with the matter."

In the argument before us, counsel for New South Wales built on Spender J's approach to the point of insisting that the effect of s.170EB was to cast upon the Court a duty, in every unlawful termination case, to undertake its own inquiry as to the existence of alternative remedies and to consider the adequacy of any that might be found. They went so far as to submit that the Court must do this before it could even refer the matter to the AIRC for conciliation.

We reject those submissions. Section 170EB instructs the Court not "to consider or determine an application". A court considers an application for relief when it addresses its merits, not when it makes a pre-trial direction intended to ready it for trial or to facilitate extra-curial settlement. A court determines an application when it decides its merits. A direction under s.170EC that a matter be referred to the Commission for conciliation is a procedural step in the processing of an application. In making that direction the Court does not "consider or determine" it.

In relation to counsel's submission that the Court has a duty to undertake an inquiry as to possible alternative remedies before embarking upon a hearing on the merits, we note that the Act does not contain any express provision to that effect. None should be implied. There is nothing in the legislation to suggest otherwise than that Parliament assumed the Court would conduct proceedings in accordance with traditional Australian methods; that is, according to adversarial - not inquisitorial - procedures. Especially in relation to a jurisdiction where many parties were expected not to be legally represented (see s.469 of the Act), Parliament would have realised that it would be hugely burdensome to expect the Court, in each case, to conduct the type of inquiry advocated by counsel. Unless very substantial resources were provided, the system would speedily collapse.

We agree with Spender J that, when material is before the Court that establishes the existence of an adequate alternative remedy, it must act on that material whether or not a party takes the point. But that does not mean that the Court has a duty to seek out information about alternative remedies. As Moore J said in Siddons, "the prohibition found in s.170EB ... is enlivened when this Court is positively satisfied that an adequate alternative remedy exists". That means satisfied by material put before it, or arguments advanced, by someone participating in the case. If the Court never reaches that state of satisfaction, the prohibition has no operation. Of course, it follows from this that there may be occasions when, if all the relevant material were before the Court, the Court would be satisfied that there is an adequate alternative remedy; yet, because it is not, the Court does not reach that conclusion and proceeds to hear the case on its merits. But there is nothing unusual about that position. Litigation results often depend on decisions made by parties as to the evidence they will adduce and the points they will take. This is the adversarial system.

von Doussa J made a comment along these lines in Fryar:

"I agree that the Court should of its own motion give consideration to the requirement of s.170EB even where an issue under that section is not raised by the respondent, but the Court cannot be expected to explore without the assistance of counsel every last interpretation possibility that can be envisaged under the State legislation, let alone every possible combination or permutation of facts in the case which may enhance or diminish the prospect that the State law would provide an adequate alternative remedy in the circumstances of that case. It must be recognised that the question whether an applicant has available an adequate alternative remedy is one to be decided having regard to the circumstances of the case and may well turn on matters of fact."

The nature of the s.170EB test

In Wylie Keely J accepted a submission:

"that, before the court declines to consider the application, it must be satisfied that (1) there is available to the employee an adequate alternative remedy i.e. adequate when compared with the remedy available under s.170EE of the Commonwealth Act as amended by Act No. 97 of 1994 (2) that alternative remedy is available under existing machinery and (3) that existing machinery satisfies the requirements of the Convention."

He went on to say that he accepted, as the meaning of "adequate" in this context, a definition taken from the Oxford English Dictionary:

"1.Equal in magnitude or extent; commensurate; neither more and nor less ... 2. Commensurate in fitness; equal or amounting to what is required; fully sufficient, suitable, or fitting;"

The Wylie formulation has been adopted, expressly or impliedly, in subsequent cases. The distinction it made between remedy and machinery played a large part in Spender J's reasoning in Gold Coast. His Honour held that it was not to the point that the procedures adopted by the Queensland Industrial Relations Commission were less satisfactory than those provided to litigants in this Court; in relation to machinery, the appropriate comparison was between the machinery provisions of the Convention and the Queensland procedures, not between the procedures of the Queensland Commission and this Court. He said:

"In my opinion, if the remedies which the Queensland Commission is able to provide are adequate having regard to the remedies which the Industrial Relations Court is able to provide, which is clearly the case, then the further requirement is simply that the machinery set up by the State of Queensland has to comply with the Convention."

In Grout, Moore J compared the remedies available under the New South Wales Act with those available under the Convention. He apparently took the view that the words "that satisfies the requirements of the Termination of Employment Convention" qualified "adequate alternative remedy" as well as "existing machinery". This may be correct; because it is unnecessary to do so, we prefer not to express a concluded view. If Moore J's interpretation is correct, it would not obviate the necessity of comparing the postulated alternative remedy with those provided under the Commonwealth Act. The other remedy must be "an adequate alternative" to an application under s.170EA. The Commonwealth Act closely follows the Convention, in relation to remedies; so a remedy that is an adequate alternative to those provided under the Commonwealth Act will probably also satisfy the requirements of the Convention. However, if there is a difference, the effect of Moore J's view is that the alternative must meet both tests. It would not be enough that a particular alternative remedy merely satisfied the requirements of the Convention.

None of the present parties challenged the correctness of the Wylie formulation. Whether or not it is also necessary for the alternative remedy to satisfy the requirements of the Convention, that formulation is adequate for the purposes of this case. We applied it.

The relevant time

A basic question, in the application of s.170EB, is the time at which the alternative remedy must be available. Counsel for the respondents canvassed three possibilities: the date of termination of employment, the date when the proceeding was commenced in this Court, and the date when the Court comes to consider the matter. Their main justification for choice of the first (or, alternatively, the second) possibility was that this accords best with what they described as the "fundamental purpose" of Division 3 of Part VIA; namely, "to supplement but not replace or defeat existing State and other arrangements". In support of the proposition that this was the Division's fundamental purpose, they referred to three other sections within the Division. The first is s.170FC which relates to orders of the AIRC giving effect to Articles 12 and 13 of the Termination of Employment Convention and provides that the Commission must refrain from considering or determining the application if it is satisfied that there is "an adequate alternative mechanism" for giving effect to the requirements of the Articles. The second is s.170GC relating to AIRC orders concerning consultations about redundancies. It provides that the Commission must refrain from considering or determining an application for an order if "an adequate alternative remedy" exists under other Commonwealth or State law that will give effect to Article 13 of the Convention. Finally, s.170HB provides that Division 3 "is not intended to limit any right that a person or trade union may otherwise have to appeal against termination of employment or to secure the making of awards or orders relating to the termination of employment".

Counsel also referred to three provisions outside Division 3: ss.170AG, 170BE and 170BH.

We accept that the policy of Parliament was that the legislative provisions enacted by it in respect of unlawful termination of employment, as in respect of some other matters, should not apply where the affected party had an adequate remedy under other legislation, including State legislation. This does not mean that the preservation of State systems was a "fundamental purpose" of the legislation. Parliament's fundamental purpose was to lay down rules for employers to observe. Its primary concern was that the rules be obeyed. If enforcement could be achieved under State law, it was content this should occur; but there was to be no compromise with its objective of making Australian remedies conform with the internationally-recognised standards adopted by it in the Commonwealth Act.

Mr Buchanan made the observation that, as a matter of construction, there was much to be said for selecting the third of his three alternatives, the date when the Court comes to consider the matter. But he suggested there were matters to be set against the impression that this is what Parliament intended. He said it was logical, as a matter of policy, to select the date when the right of action arises and that the choice of venue should not depend upon any act or omission of the applicant or what he called "the procedural happenchance" of when the Court came to deal with the matter; as would occur if the third alternative was selected and the applicant was then out of time to apply to the State Commission. He said this also avoided the problem of the Court needing to predict the result of an application for extension of time in the State Commission.

Mr West, on behalf of New South Wales, put the matter slightly differently. He said that "what s.170EB relevantly requires is a consideration of whether the circumstances of the alleged unfair dismissal of the particular applicant are such as to permit such applicant to pursue a remedy in the NSW tribunal". In essence, this is a submission that the question must be addressed as at termination date. Mr West adopted Mr Buchanan's arguments and emphasised the fact that the New South Wales Commission had a discretion to extend time.

We acknowledge the force of the arguments put in support of the first or second alternative. But not all policy considerations point the same way. If it were determined that the availability of an adequate alternative remedy must be evaluated at the date of termination, or the date of filing the Application, the possibility would arise of an applicant being denied a remedy anywhere. Suppose that a remedy is available to an applicant under State law at termination (or application) date but that law is changed before any application is made under it to the State tribunal. This is not a fanciful supposition. The Victorian legislation that gave remedies to some terminated workers, the Industrial Relations Act 1979, was replaced in November 1992 by legislation, the Employee Relations Act 1992, that provided less generous remedies than before, even for people whose claims were pending at the time of repeal of the former Act: see ss.42 and 171 of the Employee Relations Act. As we have seen, the class of people who may obtain relief under Part 8 of Chapter 3 of the New South Wales Act may be restricted, at any time, by a declaration made under regulations. It seems to us that the position that best fits the evident intention of Parliament is that a claim under Division 3 of Part VIA is excluded only if there is an adequate alternative remedy at the time the Court takes the case into active consideration. That position eliminates the possibility of an applicant falling between two stools.

As Mr Buchanan acknowledged, the form of s.170EB supports this interpretation of the section. The Court is required to decline to consider or determine an application if satisfied that there is available an adequate alternative remedy. The section uses the present tense; speaking in relation to the Court's consideration of the application. So the Court must satisfy itself about the current position, as at the time when the matter comes under consideration. It is not required to consider what was the position at an earlier point of time.

The view just expressed was tentatively adopted by Keely J in Wylie. Moore J did not deal expressly with the matter in Siddons, but his reasons assume this view. In Grout his Honour expressed a firm view to that effect, saying at 376 that "it is necessary ... to determine whether there is an adequate alternative remedy available at the time the court comes to consider the matter". He said that the use of the present tense is:
"consistent with the purpose of the section which is to deny an applicant the opportunity of pursuing an application under the Act if an application to the same effect can be pursued under, ordinarily, other legislative schemes which would generally, though not exclusively, arise under State industrial laws. Thus, it must be capable of being pursued at the time the Court denies, by operation of s170EB, the applicant the opportunity of further pursuing the application under s170EA."

von Doussa adopted this comment in Fryar. So do we.

The question we have to determine, in each case, is whether the New South Wales Act, at this time, offers to the applicant a remedy that is commensurate with that provided under Division 3 of Part VIA of the Industrial Relations Act and which is available under machinery that satisfies the requirements of the Termination of Employment Convention.

The effect of the time limit

The argument raised two issues in relation to the adequacy of the remedy under the New South Wales legislation. First, what is the effect of the time limit imposed by s.246? Second, assuming the New South Wales Commission reaches the merits of the application, is it able to provide remedies that match the standards of Division 3?

As to the first matter, it will be remembered that s.246(2) of the New South Wales Act requires an application under Part 8 to be lodged "not later than 21 days after ... termination of the employment". This applies in every case, whether notice of termination is given orally or in writing. Only an employee who has lodged an application within that time is entitled to a determination of his or her claim on its merits. Neither of the present applicants lodged a claim with the New South Wales Industrial Registrar within the requisite period. Therefore, neither has an entitlement to a determination on the merits of a claim for relief. Each of them may seek the Commission's leave to proceed. Section 246(3) permits the Commission to accept an application lodged out of time if it thinks there is a sufficient reason to do so. If either applicant now lodged an application, the Commission might think there was sufficient reason to accept it out of time; in which case it could proceed to a determination on the merits. On the other hand, it might not. Does legislation that provides to an applicant, at the relevant time, an entitlement only to seek an extension of time provide an adequate alternative remedy to that provided by Division 3?

Moore J dealt with this issue in Grout. He said at 377:
"In relation to a termination that might be dealt with under Pt 8 of the NSW Act, the Court could well be considering the question of adequate alternative remedy after the time limit in s246 of the NSW Act had expired. At that time, the consideration of an application under the NSW Act would be conditional upon the NSW Commission accepting it under s246(3). That depends upon the NSW Commission considering there is sufficient reason to do so: see Griffith Ex-Services Club Ltd v Federated Liquor and Allied Industries Employees Union (NSW Branch) [(1993) 51 IR 186] see also s246(4). An applicant would not, at that time, have an unqualified statutory right to have his or her termination dealt with by an impartial tribunal.

However, the absence of such an unqualified statutory right does not, in my opinion, result in there being no adequate alternative remedy at the time the Court was considering this issue. Section 170EB requires that the adequacy of the alternative remedy and the machinery under which it arises be tested against the requirements of the Convention found in Sch 10. Article 8 of that Convention provides:

'1.A worker who considers that his employment has been unjustifiably terminated shall be entitled to appeal against that termination to an impartial body, such as a court, labour tribunal, arbitration committee or arbitrator.

2.Where termination has been authorised by a competent authority the application of paragraph 1 of this Article may be varied according to national law and practice.

3.A worker may be deemed to have waived his right to appeal against the termination of his employment if he has not exercised that right within a reasonable period of time after termination.'

While not expressed in these terms, cl 3 of Art 8 would permit time limits to be imposed upon the exercise of the 'right to appeal' as long as the time limit constituted a 'reasonable period'. In my opinion the time limit imposed by s246(2) constitutes a 'reasonable period', particularly having regard to the discretion of the NSW Commission under s246(3) to accept an application lodged out of time. The scheme in Pt 8 of the NSW Act can be an adequate alternative remedy even though it imposes time limits. Its character does not alter, in my opinion, because the time limit has expired and an application would only be considered by the NSW Commission under s246(3)."

We agree with Moore J's comment about the effect of s.246(3): that an applicant who was out of time would not then have "an unqualified statutory right to have his or her termination dealt with by an impartial tribunal". But we do not share his view that this problem is overcome by Article 8 of the Convention. It was not correct to say that s.170EB "requires that the adequacy of the alternative remedy and the machinery under which it arises be tested against the requirements of the Convention", if that was intended as an exhaustive description of the relevant test. As we have pointed out, s.170EB requires the alternative remedy to be an adequate alternative to the remedies available under the Act, whether or it must also satisfy the requirements of the Convention. It was not sufficient for Moore J to compare the remedies available under the New South Wales Act with the requirements of Article 8 of the Convention. He should have gone on to compare the position of the applicant for an extension of time under the New South Wales Act to that of a person who has made an application under the Commonwealth Act that now falls for consideration. Ex hypothesi that application has already satisfied the time requirements of s.170EA(3).

When the issue is stated in this way, it admits of only one answer: 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 reason is obvious. The application for extension of time may fail. Moore J himself made the point when he said in Grout at 379:

"the remedy cannot be viewed in isolation and can only be considered having regard to the rights that give rise to it. If the remedy available under the NSW Act accords with the requirements of the Convention but the circumstances in which it arises are more limited or less beneficial than the Convention contemplates then the remedy, in that context, is not an adequate alternative one."

With the substitution, or addition, of a reference to Division 3 of the Commonwealth Act for Moore J's reference to the Convention, we agree.

No doubt it is right to say, as do counsel for the respondents, that the New South Wales Commission may be relied upon to act reasonably. But its criteria are different. Under the New South Wales legislation, an applicant may be denied leave, and thus the opportunity for a determination on the merits that is the applicant's entitlement in this Court, for reasons that have nothing to do with the applicant's conduct or the merits of his or her case. For example, if an important witness for the employer had died or gone abroad, the Commission might refuse leave because of hardship to the employer: see s.246(4)(b). Under s.246(4)(a) the New South Wales Commission may take into account the applicant's delay. It might refuse leave on this ground, notwithstanding the applicant's entitlement in this Court.

In Fryar there was no problem of a State time limit. The applicants had commenced proceedings in both the Industrial Commission of South Australia, within the time stipulated by the then applicable legislation, and this Court. After that date the South Australian Act was replaced by new legislation that empowered a dismissed employee to apply to the South Australian Commission "within 14 days after the dismissal takes effect". The only issue presented to von Doussa J, in relation to s.170EB, was the application in unusual circumstances of the words "takes effect". Because timely applications had been lodged with the South Australian Commission, he was not required to determine the effect of an employee having a mere right to apply for an extension of time. Nonetheless, his Honour made some observations about the problem that might occur if the period specified under relevant State legislation had expired when this Court came to consider the matter. He thought the Court should "consider what result would probably occur if application were to be made in the other relevant tribunal to invoke a remedy potentially available under State legislation or otherwise". He said this Court "should not be 'satisfied' that an adequate alternative remedy is available unless the likelihood that that is so appears as a clear probability".

It seems to us there are two problems about this approach; one conceptual, one practical. The conceptual difficulty is that there is a qualitative difference between an entitlement to prosecute a cause of action and an entitlement to seek leave to do so. The practical problem is that von Doussa J's approach involves the Court in the difficult, almost invidious, task of estimating how another institution would exercise a statutory discretion reposed in it. Moreover, to say that the matter should be determined upon the basis of "a clear probability" is to accept that sometimes the Court's estimation will be wrong; the applicant will have been denied relief in this Court on the basis of a determination that there was an adequate remedy elsewhere when, in fact, there was not.

von Doussa J sought to overcome the practical difficulty by taking a course different from that taken by Spender J in Gold Coast. He did not dismiss the proceeding, but made an order that "(t)he Court declines to further consider or determine the application" and it be stayed until further notice. The commonsense of this approach is apparent; but, with respect, we do not think it is available to the Court. Section 170EB does not envisage multiple determinations of the question whether there is an adequate alternative remedy. If the Court holds there is an adequate alternative remedy, it must decline to consider the application. It may not later consider it, even for the purpose of ascertaining whether its estimate was correct.

We appreciate that the effect of our view is that legislation that imposes a short time limit on the making of an application will rarely provide an "adequate alternative remedy" for the purposes of s.170EB. Some may think this a curious result, having regard to the fact that Division 3 itself contains a time limit. But this is so only in respect of written notices of termination. And, as already pointed out, at the time the issue arises, the applicant has already overcome any time problem in this Court. In any event, anomalous or not, the conclusion we have expressed is that which the section requires. If its application to the legislation of any particular State or Territory causes dissatisfaction, the relevant legislature has the remedy in its own hands.

The types of remedy offered by New South Wales law

We have already detailed the provisions of Part 8 of Chapter 3 of the New South Wales Industrial Relations Act. It will be remembered that Part 8 uses the term "dismissal", not "termination". Nothing turns on this difference. The word "termination", in Division 3 of Part VIA of the Commonwealth Act, means termination at the initiative of an employer: see s.170CB and Article 3 of the Convention.

A more significant matter is that the New South Wales Act does not provide for the vindication of legal rights. In contrast to Division 3 of Part VIA of the Commonwealth Act, which specifies six different situations in which a termination is "unlawful" (see ss.170DB, 170DC, 170DD, 170DE, 170DF and 170DG), the New South Wales Act does not refer to the possibility that a termination may be unlawful, as distinct from harsh, unreasonable or unjust. The lawfulness of the dismissal is irrelevant. The New South Wales statute does not provide a mechanism whereby a dismissed employee may obtain a declaration that his or her dismissal constituted a violation of the law. Such a declaration may be important. Desire for vindication may be an important element in an employee's decision to make a claim. The wish to make a point about the unlawfulness of a dismissal, so as to establish a precedent and reduce the chance of repetition, may constitute a primary reason for a trade union taking up an employee's case, as permitted by s.170EA(2).

There was debate before us as to whether a declaration of unlawful termination was now available under the Commonwealth Act, having regard to the fact that the new s.170EE (in contrast to the original s.170EE) makes no reference to a declaration. But we have no doubt about this. Section 417 provides that the "Court may, in relation to a matter in which it has jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed". This provision is cast in wide terms. It is not excluded by anything in Division 3 of Part VIA. It is commonplace for a court having power to make a declaration of right to use that power to declare that particular conduct constituted a breach of particular legislation or was otherwise unlawful.

The absence from the New South Wales legislation of any concept of determination of unlawfulness is a matter of substance, not merely form. The New South Wales statute adopts a very different approach to that of the Commonwealth Act. Instead of requiring determination of the question whether a particular termination was unlawful, and then whether there should be reinstatement or compensation, the New South Wales legislation requires the Commission to consider the employee's claim "that the dismissal was ... harsh, unreasonable or unjust" and to make such order as it thinks appropriate in relation thereto.

In relation to this comparision, a number of points are relevant. First, "harsh, unreasonable or unjust" is a narrower concept than unlawfulness. The New South Wales criterion forms only part of one situation of unlawfulness arising under the Commonwealth Act. The words appear, in a different order, in s.170DE(2). But they are inserted merely to indicate that the requirement for termination specified by s.170DE(1) - namely that there must be a valid reason for the termination connected with the employee's capacity or conduct or based on the operational requirements of the respondent's business - cannot be made out where the termination would be harsh, unjust or unreasonable. Subsection (2) was not intended as an exhaustive statement about the requirements of subs.(1). Parliament contemplated the possibility of cases where a termination was unlawful under subs.(1) notwithstanding that it was not harsh, unjust or unreasonable. Because it limits its application to people who claim their dismissals were harsh, unreasonable or unjust, the New South Wales legislation provides no remedy for people who claim to fall within s.170DE(1), but not necessarily s.170DE(2).

Moreover, the New South Wales formula provides no remedy, in terms, to people who claim their terminations were unlawful under one of the other sections of the Commonwealth Act. An employee not given the notice required by s.170DB cannot secure reinstatement or compensation under the Commonwealth Act, other than payment for the proper period of notice. But an employee who proves an infringement of s.170DC, 170DF or 170DG may do so, whether or not the termination was harsh, unreasonable or unjust.

Of course, it will often be possible to argue that the conduct that breached one or more of those sections was conduct that was harsh, unreasonable or unjust. It might be thought, for example, that a dismissal in violation of the procedural fairness requirements of s.170DC would always be harsh, unreasonable or unjust: see Bostik (Australia) Pty Limited v Gorgevski (1992) 36 FCR 20 and Byrne v Australian Airlines Limited (1994) 47 FCR 300. Yet this does not appear to be the view taken by the New South Wales Industrial Commission. As we shall see, proof of facts falling within s.170DC does not guarantee a dismissed employee relief in that Commission.

In relation to some other breaches of Subdivision B of Division 3 of Part VIA of the Commonwealth Act, the argument that the dismissal is harsh, unreasonable or unjust may be more difficult to sustain. For example, some people might not think it harsh, unreasonable or unjust to dismiss an employee who is absent from work because of illness or injury or who takes maternity or other parental leave (paras. (a) and (g) of s.170DF). Similarly, in relation to union activities or membership (paras. (b), (c) and (d)). Some people, including people in public positions, might think an employer is entitled to dismiss a "whistle blower" (para. (e)) or an employee of a particular sex, sexual preference, age, religion etc (para. (f)). And there is little, if any, correspondence between the notion of harsh, unreasonable or unjust dismissal and the termination of an employee in breach of an AIRC order under s.170FA designed to secure adequate severance allowances and deal with redundancy situations: see s.170DG. Indeed, the termination of an employee in breach of the Act's redundancy requirements (s.170DD) might not be stigmatised as "harsh, unreasonable or unjust"; yet the Commonwealth Act provides a remedy in such a case: see s.170EF. The simple point we make is that the criterion selected by the New South Wales legislature, in making remedies available to dismissed employees, is much narrower in its application than the criteria selected by the Commonwealth Parliament.

Counsel for the respondents and counsel for New South Wales both submitted that the orders able to be made by the New South Wales Industrial Commission are as favourable to applicants as those available in this Court. Although counsel for Mr Gibson suggested that the compensation provisions of the New South Wales Act are less generous than those in the Commonwealth Act, because more discretionary, we think that there is no substantial difference between the available orders. But both counsel put their submission as if this were the end of the argument; as if it were appropriate merely to look at the orders available, without considering the circumstances under which they could be made or the rights they are intended to vindicate. Such an approach is fundamentally unsound. The remedy cannot be divorced from the right. The point is well made in Tilbury "Civil Remedies" (1990). On the first page of that work the learned author quoted the Macquarie Dictionary definition of "remedy", in its legal context: namely, "legal redress; the legal means of enforcing a right or redressing a wrong". He went on:
"This brings out the general idea of remedy, namely, that of redress, normally for an anticipated or, more usually, an antecedent 'wrong', that is, for the infringement or breach of a right which is recognized and protected by law."

At 3 Tilbury quoted the felicitous statement of Goulding J in Chase Manhattan Bank NA v Israel-British Bank (London) Ltd [1981] Ch 105 at 124:
"Within the municipal confines of a single legal system, right and remedy are indissolubly connected and correlated, each contributing in historical dialogue to the development of the other, and, save in very special circumstances, it is as idle to ask whether the court vindicates the suitor's substantive right or gives the suitor a procedural remedy as to ask whether thought is a mental or a cerebral process. In fact the court does both things by one and the same act."

The next point is that the New South Wales legislation does not require a determination as to whether even its own criterion is met. The New South Wales Commission is not instructed to determine whether, as claimed, the dismissal was harsh, unreasonable or unjust. It is merely empowered, "if appropriate", to take into account the six matters listed in s.249. One of these is para.(f), "such other matters as the Commission thinks relevant". Whatever the limits of this paragraph, it seems to enable the Commission to take into account matters that clearly would not constitute a defence under the Commonwealth Act. For example, it might be open to the Commission to take into account a plea of financial hardship by an employer who has dismissed an employee in breach of s.170DE or s.170DF.

A similar situation applies in relation to a termination in contravention of s.170DC, the procedural fairness provision of the Commonwealth Act. The effect of that section is that the dismissal of an employee in circumstances of procedural unfairness is unlawful. If procedural unfairness is established, the employee may be reinstated, unless this is impracticable; and, if it is impracticable, may receive compensation instead. This is so even if the employee was guilty of conduct that would have entitled the employer, adopting proper procedures, to terminate the employment under s.170DE.

It is true that s.170EE uses the word "may", not "shall", and that "may" connotes the conferral of a discretion, not a duty: see s.33(2A) of the Acts Interpretation Act 1901. However, as the Industrial Relations Act does not specify any criteria for the exercise of that discretion, they are those emerging from "the subject matter and the scope and purpose" of the legislation: see The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Limited (1979) 144 CLR 45 at 49. The subject matter of this legislation is unlawful termination of employment. Its scope and purpose is the provision of legally enforceable remedies for people whose employment is terminated in breach of the internationally-accepted standards introduced by the Act into Australian domestic law. Because of these considerations, and the fact that the Commonwealth Act makes a termination in violation of the requirements of s.170DC unlawful in itself, whatever the employee's merits or lack of them, it would not be right to withhold a remedy for a breach of s.170DC because of considerations listed in s.170DE(1). They are factors that permit an employer acting fairly to terminate an employee's employment. Still less would it be correct for the Court to exercise its discretion adversely to an applicant because of factors extraneous to the Industrial Relations Act, such as a respondent's financial position or personal likes or dislikes.

The situation is similar to that which applied in Ward v Williams (1955) 92 CLR 496. The High Court there discussed the use of the word "may" in connection with the grant of statutory power to a magistrate to specify the works to be executed by a property owner to abate a nuisance. The Court held that the magistrate had a discretion whether to make an order. Their Honours went on, at 508:

"It is, however, a discretion which must be exercised judicially and upon grounds which do not go beyond the scope and object of Pt. VII of the Public Health Act 1902-1952. Plainly the purpose of the provisions contained in Pt. VII is, by a summary remedy, to secure the abatement or removal of the various causes of public inconvenience or offence which s.64 enumerates as nuisances, and the prevention of the recurrence of those likely to arise again. Prima facie, therefore, proof of the existence of such a nuisance should lead a magistrate to make an order when a complaint comes before him." [Emphasis added]

At the time of Ward v Williams, New South Wales law did not contain an equivalent of s.33(2A) of the Acts Interpretation Act, but that makes no difference to its continuing authority.

If any further indication of the fact that Parliament did not intend this Court to have an open discretion in relation to the granting of relief under s.170EE is required, it is provided by the word "impracticable" in s.170EE(2). The Court may order the payment of compensation for unlawful termination (as distinct from an order under s.170EE(1)(b)(ii) concerning remuneration lost in the period between termination and reinstatement) only where it thinks "the reinstatement of the employee is impracticable". Plainly, it was Parliament's intention that the primary remedy for unlawful termination should be reinstatement and that compensation should be available only where this was impracticable.

The precise meaning of "impracticable" in this context should be left to another day; the question is one of general importance and it was not fully argued in this case. But, although "impracticable" does not mean "impossible", it means more than "inconvenient" or "difficult". The imposition of such a stringent limitation on the Court's power to award compensation, rather than order reinstatement, is inconsistent with the notion that Parliament intended the Court to have an open discretion whether to intervene at all.

In contrast to all of this, under the New South Wales legislation a denial of procedural fairness is only one of the matters to be taken into account. And it has only to be taken into account, it is not determinative of the claim. Moreover, the matter to be considered is stated more narrowly in the New South Wales statute than in the Commonwealth Act. Section 249(c) refers to "whether a warning of unsatisfactory performance was given before the dismissal or threat of dismissal". An implied requirement of a "warning" is a lesser requirement than s.170DC's command that the employee be allowed to make a defence; and "unsatisfactory performance" is narrower than s.170DC's "reasons related to the employee's conduct or performance".

The point we make is highlighted by para.(b) of s.249. That paragraph entitles the Commission to consider "whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour". However, this applies only where the employer gave a reason for dismissal. It seems that, if no reason was given at the time of the dismissal, but the employer subsequently seeks to justify the dismissal by reference to the employee's misconduct or poor performance, the Commission is not required to consider whether the employee was given an opportunity to make a defence. Still less is it bound to find against the employer on the ground that no opportunity was given, as it would under the Commonwealth Act.

Some people may think these comments relate to form rather than substance; that the New South Wales Commission, having undoubted power to take into account any procedural unfairness, would be likely to take the same approach as that dictated by the Commonwealth Act. However, it appears this is not the Commission's practice. Mr Batley referred us to Cecil v Zenoo Pty Ltd, an unreported decision of Conciliation Commissioner McKenna. The decision was given on 27 October 1993, eight months after Australia ratified the Termination of Employment Convention. Zenoo sought to justify its dismissal of Ms Cecil by reference to her alleged poor work performance. The Commissioner accepted that performance considerations were "substantial" and "pivotal" in the directors' minds when they dismissed Ms Cecil. Accordingly, and although he found she was never warned about possible dismissal, he dismissed her application. He explained:
"It is usual when determining unfair dismissals claims to examine questions of both procedural and substantive fairness. Some typical hallmarks of procedural fairness include the timely provision of warnings, a fair opportunity to speak in one's own 'defence' and/or the exploration of options short of dismissal. Nonetheless, procedural fairness is but one of many matters which is considered by the Commission in the exercise of its discretion: Hospital Employees Federation of Australia v Western Hospital (1991) 4 VIR 309; Australian Social Welfare Union v Australian Red Cross Society (1993) 48 IR 119 at 120."

McKenna CC's reference to the Hospital Employees Federation case is revealing. In that case Lawrence DP of the (now abolished) Victorian Industrial Relations Commission dealt with a claimed unfair dismissal of three employees. He indicated at 320 that the provisions of the relevant Victorian legislation "should be construed as requiring a conciliation and arbitration board or the Commission to determine all the relevant facts and circumstances of the employment relationship in answering the question of whether or not a dismissal was harsh, unjust or unreasonable". He went on at 321:

"The recognition of the right of a party to raise a range of matters at the hearing of an unfair dismissal claim means that an employer which has denied procedural fairness (and, prima facie, would be regarded as having unfairly dismissed the employee) may establish that the dismissal was not unfair."

McKenna CC's second reference is to a decision of the Full New South Wales Industrial Commission (Bauer and Glynn JJ and Connor CC). The reference demonstrates that McKenna CC applied in Cecil the approach to reinstatement claims generally accepted in the New South Wales Commission. In Australian Social Welfare Union the Full Commission noted that Redman CC found, at first instance, that the respondent had failed to comply with its own stated disciplinary procedures and "the manner in which the dismissal was effectuated was less than satisfactory". Nonetheless, he had declined to order reinstatement. Counsel for the appellant submitted to the Full Commission that "failure to comply with known promulgated procedures amounted to such procedural unfairness that the Commissioner ought to have ordered reinstatement". The Full Commission rejected that argument saying, at 120:
"Departure of an employer from established procedure when it dismisses an employee whilst relevant to the consideration does not by itself establish the requisite level of unfairness to justify reinstatement."

This is a far cry from the approach required under the Commonwealth Act. It emphasises the point that the New South Wales Act is not concerned with the provision of remedies for violated rights, but rather to empower the Commission to order reinstatement or the payment of compensation if, as a matter of discretion and having regard to a wide range of matters, this seems appropriate.

The final point to be made, in the comparison between the two statutes, is that, according to the New South Wales Commission, its system is open only to those who seek reinstatement; whereas applicants may come to this Court seeking compensation alone. There is nothing in Part 8 of the New South Wales Act that expresses this restriction, but the Commission takes that view. In Leeds and Northrup Australia Pty Limited v Hull (1992) 46 IR 11 at 14-15, the Full Commission referred to s.246(1) (identifying the available claim) and s.250 (remedies) and said;

"Although [s.250] commences by reference to the determination of 'a claim' and [s.246(1)] does not require more than a claim that the dismissal was harsh, unreasonable or unjust the true effect of these sections taken together is to require an actual claim for reinstatement or re-employment because it can only be by a consideration of such a claim that a conclusion can be reached that it be 'impracticable', eg to reinstate. To afford the former employee the discretion to elect not to seek reinstatement if that person considers it impracticable would be either to, in a sense, delegate the power afforded by the sections, a step which, of course, cannot be taken or to fail to exercise that power."

This approach was reaffirmed by the Full Commission in Bessie Smyth Foundation Limited v Dinic (1993) 54 IR 126.

We make no criticism of the Commission's interpretation of the New South Wales legislation. But the effect of that interpretation is that the New South Wales Act does not provide a remedy to people who merely seek compensation. Under the Commonwealth Act, it is open to an applicant to confine the claim to one for compensation. The position was, perhaps, clearer under the original form of s.170EE; but we think there can be no real doubt about it under the current section. Section 170EA entitles an employee to apply to the Court "for a remedy in respect of termination of his or her employment". One of the remedies made available by s.170EE is payment of compensation. It is true that compensation in lieu of reinstatement is only available if the Court considers reinstatement impracticable, so an employee who merely seeks compensation may be defeated by a finding that reinstatement is practicable. But that does not prevent the employee asking for it. To the extent that it may be suggested in Leeds and Northrup that the practicability of reinstatement can only be assessed if there is a claim for reinstatement, we respectfully disagree. There is no reason why this question cannot be determined on the evidence like any other factual issue.

One of the present applicants, Mr Liddell, does not claim reinstatement. This fact alone excludes him from the New South Wales system.

Other observations

Reference should be made to four other matters raised in argument. First, Mr Batley placed some reliance on s.252 of the New South Wales Act, quoted above. This section allows the New South Wales Commission to award costs against a party it "considers to have unreasonably failed to agree to a settlement of the claim". Mr Batley said that an order might be made under this section against an applicant; and the possibility of such an order might act as a deterrent to people considering a claim under the New South Wales Act. We agree. But there is a question whether the point goes to the adequacy of the remedy or the machinery under which the remedy is available. No doubt there is a stage at which a provision in the adjectival law relating to an application for a remedy is so significant that it affects the availability of the remedy itself. Whether that point is reached by s.252 is a question about which we need not express a conclusion.

Secondly, in the same vein, Mr Batley pointed out that the New South Wales Act does not contain a provision mitigating an applicant's burden of proof; unlike s.170EDA(1) of the Commonwealth Act which casts on the employer the onus of proving the existence of a valid reason for the termination, within the meaning of s.170DE(1). Once again, we agree this is so. But, again, we prefer not to express a conclusion on its significance.

Thirdly, Mr Batley referred to s.254; also set out above. The section requires the New South Wales Commission to reject an application relating to a dismissal if "another Act or a statutory instrument provides for redress to the person ... in relation to the dismissal" and the person has commenced proceedings under the other Act or instrument or not lodged a written undertaking not to proceed under the other Act or instrument. If the words "another Act" applied to the Commonwealth Act, this provision could cause a difficulty for the applicants in now making an application under the New South Wales Act, even for an extension of time. However, we do not think it should be so construed. The general principle is that, unless a contrary intention is expressed, words used in a statute are to be read in a local context. Section 65 of the Interpretation Act 1987 (NSW) reflects this principle. It provides that an "Act passed by Parliament, or by any earlier legislature of New South Wales, may be referred to by the word 'Act' alone". Although the Interpretation Act does not specifically state that the word "Act", when used in statutes, refers to a New South Wales Act, we think it should be so understood. As to the second alternative, the Commonwealth Act is not a "statutory instrument". A "statutory instrument" is an instrument made under statutory power: see Halsburys Laws of England (4th edition) vol. 44, paras 981-984. A statute does not fall within that description. We do not think s.254 applies to an application made under the Commonwealth Act.

Finally, we mention that, during the course of his submissions, Mr Buchanan referred to the unlawful termination provisions as an area of law "constitutionally reserved" to the States. He referred to the Commonwealth "intruding" into the area. Mr Buchanan seemed to be suggesting that these considerations justified a more generous approach to the question whether New South Wales law provided an "adequate alternative remedy" than might otherwise be appropriate.

We reject this approach. Whatever value talk of "intrusion" into areas of State law may have in political rhetoric, it has no place in legal argument. As long ago as 1920, the High Court of Australia rejected the notion that the Constitution contained an implication preserving the continued operation of State law and that the powers conferred by it on the Commonwealth Parliament should be read down accordingly: see Amalgamated Society of Engineers v Adelaide Steamship Company Limited (1920) 28 CLR 129. Since that time the Court has proceeded on the basis that the Constitution, and any legislation enacted in reliance upon it, must be construed in accordance with ordinary canons of interpretation. If the legislation is valid, on a fair reading of the constitutional power, it must be applied according to its tenor and regardless of any effect on State law.

In the present case no suggestion is made of constitutional invalidity. Accordingly, our duty is to take the legislation as we find it; interpreting it fully and fairly, without any predisposition towards aggrandisement of the Commonwealth role or its institutions, but also without being deterred by the effect of our interpretation on the States. This we have endeavoured to do.

I certify that this and the preceding fifty-two (52) pages
are a true copy of the Reasons for Judgment
of Chief Justice Wilcox and Justice Keely.

Associate:

Dated: 15 December 1994

APPEARANCES

Solicitor for the Applicant

in NI.200 of 1994: P Batley of Kingsford Legal Centre

Counsel for the Applicant

in NI.380 of 94: R Moore

Solicitors for the Applicant

in NI. 380 of 1994: McIntosh Emerton & Thomas

Counsel for both Respondents: R J Buchanan QC and P Kite

Solicitors for Respondent
in NI.200 of 194: Teitzel & Partners

Solicitors for Respondent
in NI. 380 of 1994: Mark Sant

Counsel for State of NSW
intervening: J N West QC and P Newall

Solicitor for State of NSW
intervening: Crown Solicitor

Dates of hearing: 2 and 3 November 1994

[1994] IRCA 139

3 Nov 1994