Australian Institute of Marine and Power Engineers’ Union of Employees, Queensland District v Islands Transport Services (Australia) Pty Ltd, Alan Bax, and Islands Transport Pty Ltd [2000] ICQ 10 (2000) 163 QGIG 355

24 March, 2000 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 355 ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 282 – case stated Australian Institute of Marine and Power Engineers’ Union of Employees, Queensland District AND Islands Transport Services (Australia) Pty Ltd, Alan Bax, and Islands Transport Pty Ltd (No. C6 of 2000) PRESIDENT HALL 14 March 2000 DECISION This is a case stated pursuant to s. 282 of the Industrial Relations Act 1999. It concerns the appropriate forum in which to institute proceedings about conduct engaged in for a prohibited reason before the Industrial Relations Act 1999 replaced the Industrial Organisations Act 1997. In the case stated the Commission has set out what it describes as a “background”, in these terms – Australian Institute of Marine and Power Engineers’ Union of Employees, Queensland District (AIMPE), by application number B1563 of 1999, commenced proceedings on 12 November 1999 seeking relief under Part 4 of Chapter 4 of the Industrial Relations Act 1999 (the Act) against three -- 1 of 2 -- 356 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 24 March, 2000 named respondents (Islands Transport Services (Aust) Pty Ltd, Alan Bax, and Islands Transport Pty Ltd). The application alleges a number of instances of conduct by the three respondents, either individually or in concert, directed against Daniel Raddatz, a member of AIMPE. The alleged conduct is said to have been engaged in for a “prohibited reason” within the meaning of the Act or the Industrial Organisations Act 1997 (IO Act) and is said to be prohibited conduct within the meaning of either piece of legislation. Application B813 of 1999 was commenced by AIMPE on 21 June 1999 under the Workplace Relations Act 1997 (WR Act) and alleges an unlawful dismissal of Daniel Raddatz on 19 May 1999 for, inter alia, reasons connected with his membership of, and activities as a member of AIMPE. The respondent to application B813 of 1999 is also a respondent to application B1563 of 1999 and the termination referred to in the earlier application is also pleaded as an instance of prohibited conduct in the later application. AIMPE has applied to join the two applications and have them heard together. The questions raised for the Courts opinion are: “The Commission requests the opinion of the Court on the appropriate jurisdiction(s) in which the abovementioned applications, or parts thereof, can lawfully be heard and determined. The Court is requested, in particular, to answer the following questions:– 1. (a) Can proceedings concerning alleged prohibited conduct occurring prior to 1 July 1999 be lawfully heard and determined in the Commission? (b) If the answer to (a) is ‘no’, can those proceedings be lawfully heard and determined in the Court? 2. Which of the Industrial Relations Act 1999 and the Industrial Organisations Act 1997 governs the substantive law in respect of matters concerning alleged prohibited conduct occurring prior to 1 July 1999? 3. In all the circumstances, can application B813 of 1999 be properly heard and determined together with application B1563 of 1999?”. As a matter of first impression proceedings about prohibited conduct engaged in prior to 1 July 1999 should be instituted in the Court and determined under the Industrial Organisations Act 1997. Section 20 of the Acts Interpretation Act 1954 relevantly provides – “(2) The repeal . . . of an Act does not – . . . (c) affect a right . . . or liability . . . accrued or incurred . . . under the Act; or . . . (e) affect . . . proceeding or remedy in relation to a right, . . . liability or penalty mentioned in paragraph (c) . . . (3) The . . . proceeding . . . may be . . . continued or completed, and the right, . . . or liability may be enforced and the penalty imposed, as if the repeal . . . had not happened.”. The difficulty is said to arise from s. 710(4) of the Industrial Relations Act 1999 which provides – “(4) Proceedings started before the commencement of this section under a provision of the repealed Act or the IO Act and pending at the date of the repeal may be carried on and prosecuted as if they had been started under the corresponding provision of this Act.”. It is said that it would be incongruous for proceedings commenced under the Industrial Organisations Act 1997 to be determined under the Industrial Relations Act 1999 whilst proceedings commenced after the Industrial Relations Act 1999 had replaced the Industrial Organisations Act 1997 are determined under the later statute. So indeed it would. However it is s. 710(5), not s. 710(4) which applies where, as here, jurisdiction was transferred from the Court to the Commission. The subsection provides – “(5) However, if the entity before whom proceedings were started had jurisdiction to hear and decide the proceedings under the repealed Act, but the entity no longer has jurisdiction under this Act – (a) the proceedings may be continued and completed as if the repealed Act has not been repealed; and (b) if a person is dissatisfied with the decision of the entity in the proceedings, an appeal against the decision may be started and completed as if the repealed Act has not been repealed.”. The circle is complete. Whether the proceedings are instituted before or after 1 July 1999 proceedings about prohibited conduct are to be determined by the Industrial Court of Queensland and the Industrial Organisations Act 1997 supplies the substantive law. On the view which I have taken there is no proceeding about prohibited conduct properly before either the Court or the Commission and question three is hypothetical. However it is probably convenient to say that there is no express power to join a matter in the Court and a matter in the Commission, and such an order cannot be justified as incidental to any of the express powers of the Court or the Commission. I answer the questions asked of the Court as follows: 1. (a) No. (b) Yes 2. The Industrial Organisations Act 1997. Dated this fourteenth day of March, 2000. D.R. HALL, President Released: 14 March 2000 Appearances:– Mr R. Reed instructed by Carne & Herd Solicitors for the applicant. Mr J. Murdoch SC, instructed by Dillons, Solicitors for the respondent. -- 2 of 2 --