D’Arcy v Amalgamated Television Services Pty Ltd [2002] QIRC 15 (2002) 169 QGIG 185

1 March, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 185 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s.74 – application for reinstatement Michael John D’Arcy AND Amalgamated Television Services Pty Ltd (No. B11 of 2002) COMMISSIONER BLADES 14 February 2002 Industrial Relations Act 1999 – Unfair dismissal application – Federal award employee of constitutional corporation – Jurisdiction – Section 72(1)(e) – “Industrial Instrument” – Meaning of “generally” in definition of “Award” – Held that “industrial instrument” does not include a federal award or instrument – Federal award employees generally entitled to file in State jurisdiction – Held that because the annual wages exceeded the amount prescribed, a federal award employee could not access the State jurisdiction – Held no jurisdiction – Application dismissed. DECISION The applicant Michael John D’Arcy was employed by the respondent Amalgamated Television Services Pty Ltd from 24 November 1980 until 12 December 2001 on which date it was alleged that his position was made redundant. An application under the unfair dismissal provisions of the Industrial Relations Act 1999 (the Act) has been made. The respondent alleges that this Commission has no jurisdiction to entertain the application because the applicant’s wages exceeded $71,200 and he was not employed under an industrial instrument as that term is defined in the Act. The applicant submits that he was employed under a Federal industrial instrument namely the Seven Network (Operations) Limited – Enterprise Agreement 2000 and that he is not excluded because of the impact of recent amendments to the Act which have removed the exclusion for Federal Award employees from unfair dismissal laws. It is accepted by the parties that the argument turns upon the definition of “award” in the Dictionary in Schedule 5 of the Act. If the applicant was employed under an award (as defined), there is jurisdiction. If the applicant was not employed under an award, there is no jurisdiction. Section 72 of the Act, so far as is relevant, provides:– “(1) Section 73(1) does not apply to - ... (e) an employee – (i) who is not employed under an industrial instrument; and (ii) who is not a public service officer employed on tenure under the Public Service Act 1996; and (iii) whose annual wages immediately before the dismissal are more than $68,000 or a greater amount stated in, or worked out in a way prescribed under a regulation; ..”. It is common ground that the applicant was employed under a Federal award, was not a public service officer and his wages exceeded the amount prescribed under the regulation. “Industrial instrument” as defined in the Dictionary “means an award, certified agreement, QWA, industrial agreement, EFA or order under chapter 5, parts 5 and 6.”. “Award” is also defined in the Dictionary which provides:– “award - (a) generally, means - (i) an award made under Chapter 5 or continued in force under this Act; or (ii) an award as amended under Chapter 5; and (b) for chapter 6, part 1, division 3 and part 2, division 6 - includes an award under the Commonwealth Act, part VIE.”. It is Mr Loane’s submission that the word “generally”, defined in the Oxford Dictionary as “affecting or concerning all or most people or things, not specialised or limited” has the effect that the term “award” is not limited to a state award. On the other hand, Mr Lunny submits that if Mr Loane’s argument be correct, the provisions of paragraph (b) in the definition of “award” would be otiose. It is with respect that I agree with the latter submission. The Macquarie Concise Dictionary 2 nd Australian edition defines “generally” as:– “1. with respect to the larger part, or for the most part. 2. usually; commonly; ordinarily.”. -- 1 of 3 -- 186 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1 March, 2002 It is my view that, in brief terms, the definition, in its ordinary sense provides that “award” usually means an award made or amended under chapter 5 but for chapter 6 etcetera, includes an award under the Commonwealth Act. If “generally” incorporated Federal awards, then I agree that paragraph (b) seems unnecessary. Chapter 6, part 1, division 3 and part 2, division 6 deal with the “no-disadvantage test” so that a Federal award can be considered under those provisions. If the term “generally” meant that Federal awards were already included, the necessity for a separate provision in paragraph (b) did not arise. The drafting style used in the definition of “award” is also evident elsewhere – see the definition of “employee”, “employer”, “industrial action” and “organisation”. For example, in its ordinary sense, “employee” means generally (or usually, commonly, ordinarily), see section 5 but for chapter 6, part 2, see also section 188(2). Mr Loane urged a consideration of the history of the legislation. He submitted that prior to 23 July 2000, when the Training and Employment Act 2000 commenced, the Commission could not have entertained an application of this nature because of the provisions of s. 72(7) and (8) which were repealed by that Act. He submitted that it was at that time not logical that the expression “generally” in the definition of “award” should be read to include an award of the Federal Commission because of the exclusion already there in s. 72. He said there was a very specific need for paragraph (b) in the definition of “award” prior to 23 July 2000 because of the existence of the prohibition in s. 72. When the bar was removed as from 23 July 2000, there was no need to amend the definition of “award” simply because the bar had been removed. The word “generally” could then be read as “generally speaking, affecting or concerning all or most people or things, not specialised or limited” and to include a Federal award. I set out the provisions of ss (7) and (8) as they stood prior to the amendment:– “(7) This chapter does not apply to a federal award employee, but instead the provisions of the Commonwealth Act relating to dismissals apply (as a law of the State) to the employee. (8) In this section - ‘federal award employee’ means an employee - (a) any of whose employment conditions are governed by an award, certified agreement or AWA under the Commonwealth Act; but (b) who is not an employee mentioned in the Commonwealth Act, section 170CB(1)(a) to (d).”. Section 170CB(1)(c) refers to a Federal award employee who was employed by a constitutional corporation. Subsections (7) and (8) applied the provisions of the Federal Act, as a law of the State, to the Federal award employee who was not employed by a constitutional corporation. The provisions purported to give jurisdiction to the Commonwealth for those employees. The provisions at that time had no application to an employee equivalent to Mr D’Arcy who was employed by a constitutional corporation and who could utilise the provisions of the Federal Workplace Relations Act 1996. The subsections only applied to a non-constitutional corporation employee (or an employee not employed by a constitutional corporation) who had no means of redress under Federal unfair dismissal laws which simply did not apply to such an employee through lack of legislative competence – see Macken “The Laws of Employment” 4th ed p. 315. In Re Wakim; ex parte McNally (1999) 198 CLR 511, the High Court ruled legislation which purported to confer State jurisdiction on Federal courts invalid. Thus the provisions of ss (7) and (8) were invalid, resulting in Federal award non-constitutional corporation employees being excluded from both the State and Federal jurisdictions and having no avenue for redress at all. When ss (7) was repealed and ss (8) was amended on 23 July 2000, the Explanatory Notes relating to s. 72(7) stated:– “The effect of deleting section 72(7) is that a federal award employee of a non-constitutional corporation in Queensland is now able to seek reinstatement for an unfair dismissal in the Queensland Industrial Relations Commission instead of the Australian Industrial Relations Commission. See also new section 74(2A).”. The amending Act provided a machinery for righting the wrong created by the passage of the Industrial Relations Act 1999 which had introduced ss. (7) and (8) and which commenced on 1 July 1999. Section 74, as amended, provided in ss (2A) that:– “However, a person - (a) who, immediately before the commencement of this subsection, was a federal award employee within the meaning of section 72(8), as in force immediately before the commencement of this subsection; and (b) who was dismissed after 30 June 1999, but before the commencement of this subsection; and (c) who - (i) has made an application for reinstatement relating to that dismissal to the commission, but the application was rejected or dismissed because the person was a federal award employee; and (ii) has not made an application for reinstatement relating to that dismissal to the Australian commission; may make application within 21 days after the commencement of this subsection.”. That subsection extended the time within which an application could be made by a federal award employee of a non-constitutional corporation dismissed after 30 June 1999 to 21 days after 23 July 2000 in certain defined circumstances. While the effect of the repeal of ss (7) and the amendment to ss (8) was that federal award employees of a non-constitutional corporation were able to seek reinstatement in the State jurisdiction, the amendment had no application to a federal award employee of a constitutional corporation. Either before or after that date, that employee had no restrictions placed upon an application either to the State or the Federal Commission. The only limitation was that if an application were made to the State Commission, questions of inconsistency and the application of s. 109 of the Constitution and s. 152 of the Federal Workplace Relations Act 1996 could be argued. Those questions however, may well have been overcome by decisions such as City of Mandurah v Hull (2000) WASCA 216 and Collinsville Coal Company v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (1996) 152 QGIG 165 and other cases. It was the inability of the non-constitutional corporation employee to seek a remedy in either the State or the Federal jurisdictions which prompted the amendment. In the second reading speech to the Training and Employment Act 2000, the Honourable the Minister said:– -- 2 of 3 -- 1 March, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 187 “The second involves the unfair dismissal provisions for Federal award employees employed by non-constitutional corporations. A ruling of the High Court, handed down after this House passed the Industrial Relations Act 1999, has prevented the operation of complementary laws established under the Industrial Relations Act 1999. As a result, these employees have no avenue to seek a remedy for unfair dismissal. The amendment to section 72 will allow these employees to access the Queensland Industrial Relations Commission.”. This speech, the Explanatory Notes and the provisions of the Legislation all deal with employees of non-constitutional corporations who had no access at all to unfair dismissal laws because of the passage of s. 72(7) and (8) when the Industrial Relations Act 1999 commenced as from 1 July 1999. There is no inconsistency between what is sought to be achieved by the amended provisions and limiting the meaning of the word “generally” in the definition of “award” to its ordinary sense. Section 72(1)(e) is to be read conjunctively with the effect that s. 73 does not apply to an employee who has three characteristics, namely:– (i) is not employed under an industrial instrument; and (ii) is not a public service officer on tenure; and (iii) whose wages exceed a stated amount. Each characteristic must be present before the exclusion applies. The persons to whom s. 73 does not apply are then very limited in nature and the intention of the Act to remove the restrictions has been achieved without stretching to an unjustifiable limit, the meaning of the word “generally”. For example, the exclusion does not catch a Federal award employee (not a public servant) whose wages do not exceed the stated amount. Such a person is well able to file in the State Commission. It matters not whether the employee be an employee of a constitutional corporation or non-constitutional corporation except that the constitutional corporation employee is also entitled to file in the Federal Commission. Questions of inconsistency can only arise in the case of constitutional corporation employees. It is my view that because the applicant’s wages exceed the prescribed limit and he is not employed under an industrial instrument as that term is defined in the Act, he is excluded from the provisions of s. 73. The application is dismissed. I order accordingly. B.J. BLADES, Commissioner. Released: 14 February 2002 Appearances:– Mr M.G. Loane, Herriot Services Pty Ltd, for the applicant. Mr J.M. Lunny, instructed by Clayton Utz, for the respondent. -- 3 of 3 --