Toni Andreevski and Western Institute Students Union (Inc)
[1994] IRCA 46
•26 Sep 1994
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA VI 1279 of 1994
VICTORIA DISTRICT REGISTRY
B E T W E E N :
TONI ANDREEVSKI
Applicant
A N D
WESTERN INSTITUTE STUDENTS UNION (INC)
Respondent
Ex tempore Reasons for Judgment
PARKINSON JR
26 September 1994
The respondent by notice of motion seeks that these proceedings be dismissed for want of jurisdiction. Counsel for the respondent submitted that as the respondent employer’s status was that of an associated body of a university pursuant to the Victoria University of Technology Act 1990, the appropriate forum for dealing with internal or domestic disputes in universities was the university visitor. As the respondent is an incorporated body, counsel for the applicant submitted that it was not a body subject to the jurisdiction of the visitor. For reasons which will be apparent in this decision, it is not necessary for me to determine that part of this aspect of this notice of motion.
It was submitted for the respondent that the Industrial Relations Act 1988 does not apply to domestic matters arising in universities and as such there is no jurisdiction in this court to deal with the applicant’s application pursuant to S170EA of the Act. This submission arises out of a consideration of the operation of S414 of the Act. It was submitted that S414 confers exclusive jurisdiction on this court only in relation to matters which are proper to be dealt with by a court.
I do not accept this submission for the following reasons:
Firstly, I am of the view that S414 of the Act is directed towards proceedings brought against registered organisations or their members, and is a provision which operates to confer exclusive jurisdiction on this court in so far as those proceedings are in respect of an act or omission for which an organisation or a member of an organisation is liable to be sued, or in so far as those proceedings seek the imposition of a penalty against such organisations or their members. There is no evidence in the present case that the respondent is either an organisation or a member of an organisation within the meaning of that term in S414 of the Act.
Secondly, S414 of the Act merely provides for exclusivity of jurisdiction in relation to certain matters under the Act. It does not of itself confer any jurisdiction upon this court. It is S412 of the Industrial Relations Act 1988 which operates to confer jurisdiction upon this court in relation to matters arising under the Industrial Relations Act 1988. S412(1) gives this court jurisdiction with respect to matters arising under the Act in relation to which:
(a) applications may be made to it under this Act; or
(b) actions may be brought to it under this Act; or
(c) questions may be referred to it under this Act; or
(d) appeals lie to it under section 422; or
(e) penalties may be sued for and recovered under this Act; or
(f) prosecutions may be instituted for offences against this Act, other than a prosecution under section 407 or 485.
S170EA of the Industrial Relations Act is an application of the type set out in S412(1)(a) of the Act. That is, it is an application for a remedy pursuant to S170EE of the Act. Thus to determine the limitations on the jurisdiction of this court in relation to alleged unlawful termination of employment, it is necessary to refer to the specific provisions of Division 3 of the Act; in particular in the present case to S170EA, EB and EE.
S170EA authorises the bringing of an application to this court for a remedy in respect of a termination of employment. S170EB provides the only presently relevant limitation upon the exercise of the court’s jurisdiction in respect of such an application. That is, that the court shall not exercise jurisdiction if an adequate alternative remedy exists. It is therefore necessary to consider the question of adequate alternative remedy.
I was referred by Mr. Teh, counsel for the respondent, to a number of articles in relation to the function and jurisdiction of the university visitor. These articles are helpful in informing the court as to the role of such visitor, but in the present case do not assist the respondent in its submission that the university visitor had exclusive jurisdiction to the exclusion of this court in relation to termination of employment. Exhibit T1, an article entitled The Exclusive Jurisdiction of the University Visitor 97 (1981) Law Quarterly Review 610 at 615 clearly identifies a significant limitation to the role, at least in the U.K. and this is expressed as follows:
“ The visitor is therefore a private judge involved with purely domestic matters concerning the internal government and management of the foundation. He is empowered to judge according to the statutes of the corporation of which he is a visitor and has no jurisdiction where any laws of the Kingdom are involved. Consequently the visitor does not have cognisance of offences against any statute of the realm and he can have no jurisdiction in any matter governed by the common law.”
The authorities to which I was referred also bear out this approach.
In Re University of Melbourne; Ex parte De Simone [1981] VR 378, the court held that it is beyond the jurisdiction of the visitor to make a determination affecting the rights and liabilities of persons who are not corporators of the university, or dealing with the legal relations between the university and those who are not corporators.
The court further held that the enforcement of obligations imposed by an Act of Parliament is beyond the jurisdiction of the visitor if the Act of Parliament is not the foundation instrument.
The former decision and the decision of University of Melbourne; Ex parte McGurk [1987] VR 586 were both cases where applications had been made in the Supreme Court of Victoria for the granting of discretionary remedies arising out of administrative law principles. On that basis, the courts were considering the power of the visitor in the context of the Acts and regulations which applied to the university, and the question of the exclusive jurisdiction of the university visitor arose in that regard only.
Having regard to the above matters I have decided:
That this court is vested with the jurisdiction to hear and determine an application by Mr. Andreevski in relation to the termination of his employment.
That the university visitor is not a body which exists to provide the
applicant in these proceedings with an adequate alternative remedy
having regard to the functions of the university visitor and the remedies provided for pursuant to S170EE of the industrial
relations Act.
It should be said at this time that there is dispute between the parties as to the true nature of the applicant’s employment status including issues arising under Regulation 30 of the Act. At the hearing of this notice of motion I declined to deal with these matters other than as substantive questions of fact to be determined at any trial of the application. Therefore there was no argument put in relation to the employment status of the applicant.
This court makes the following orders:
That that part of the respondent’s notice of motion relating to the availability to the applicant of an adequate alternative remedy be dismissed.
That that part of the respondent’s notice of motion relating to the status of the applicant as an employee, or pursuant to Regulation 30 of the Industrial Relations Act 1988 be dealt with as substantive questions of fact to be determined at the trial of the applicant’s application.
I certify that this and the four (4) preceding pages are a
true copy of the reasons for judgment of Judicial
Registrar Parkinson.
Associate:
Dated: 26 September 1994
Representative for the applicant: Media Entertainment & Arts Alliance
Representative appearing for the applicant: Ms N. Atkin
Solicitors for the respondent: McDonald McCoy
Counsel appearing for the respondent: Mr G. Teh
Date of hearing: 26 September 1994
Date of judgment: 26 September 1994
CATCHWORDS
INDUSTRIAL LAW - Termination of employment - adequate alternative remedy - university visitor - conferral of jurisdiction .
Industrial Relations Act 1988 (Cth), ss 170EA, 170EB, 412(1), 414.
Re University of Melbourne; ex parte De Simone [1981] VR 378
Re University of Melbourne; ex parte McGurk [1987] VR 586
TONI ANDREEVSKI v WESTERN INSTITUTE STUDENTS UNION (INC)
NO. VI 1279 of 1994
Parkinson JR
Melbourne
26 September 1994
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