Byrne v Mackay Port Authority [1999] QIRC 40 (1999) 160 QGIG 177

176 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 March, 1999 5 March, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 177 COM~ISSIO:-,.,rER BL00\1HELD QUEENSLA:--JD lNDUSTJ:{fAL RELA TfONS C0.\1:MISSION WORKPLACE RELAT[Oi'iS ACT 1997 lnduJtrial Relations Act lY90- s. 295 application fCK reinstatement Christopher Stephen Byrne AND Mackay Port Autborjty (No. B64 of 1997) (> Rl~ / 19 February 1999 -- 1 of 2 -- 178 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 March, 1999 Reinstatement - Jurisdictional Issues Whether Applicant excluded by Regulation 34(2) 011 basis of h.1s salary :-. 49214) and s. ~ U ot Workplace Relations Act 1997 considered - s. 513 found to be relevant section under generalia specialibus non de:rogani ruL- Con,1deration of Rc·gubtion., ma<k under s. 216(5) Possible retrospective effect of Regulations s. 34 of Statutory Instruments ,1ct 1992 considered [kcickd no ietrospect1ve efft,t permissible - Arbirrated Matter - Applicant not excluded employee. DECISION Mr Christopher Byrne ceased employn~nt with the Mackay Port Autlmnty in Decemb,,r 1996. On 7 .fanuary 199'1 he commenced proceedings in the Commission seeking relief pursuant to Di vision 5 of Part I 2 of the Industrial Relations ,1ct 1990 (the old Act). For r,:asons which ii.re not r ekv,rnt, ,.;om;; time elapsed before the matter came on for call over. Background and submissions on certain threshold issues At the call over hearing on 16 December 1998 Chief Industrial Commissioner Hall assigned the matter to the Commi:-sion as pres.ontly z;onstituted to hear and determine certain threshold points raised by the respondent which were said to deprive the Conun.i.s,ion of the juri.,tliclion lo hc;ar the application. Subsequent correspondence between the Industrial Registrar and .<ohc1tors rcpre.<:l'.nting the re,pondent darifict! those> issue's tD be tv;o.fo!d. TI1ey werco:- • The applicant is an excluded employee by virtue of Regulation 34(2) nf the Workplace ReL,ri,m, Rei;nlati,)n 19<l7 and thus Parts 2 and 1 of Chapter 5 of the Workplace Relations Act 1997 (the new Act) do not apply to him; and • The applicant was not dismissed by the respondent; rather he resigned from his employment. The respondent filed an outline of submissions and contentions on the jurisdictional issues. It also filed three afiid:ivit.< in support 11f its case. ·n10;,e affidavits particularly went to the issue of Mr Byrne's purported resignation in Decemht~r 1996. Mr R. Clarke, who appeared for Mr Byrne, submitted that the material filed by the respondent mdicat,:d !h.'.11 the qu,.;,tiu11 vf wh;:;ther there had hcer: a resignation or not was clearly a contentious matter and one which r,~qlllred the testing of evidenc,, frnm both ,i,J;:;:,. H,.: rnd1cated that it wouJ,j b,: procedurally unfair to attempt lo determine that mailer without the opportunity of testing the material pre~1:nh'd a ta.sk which wa:; imposs1hle on th,; da: because of the absence of his client In the absence of Mr Byrne and given that the issue of whether there ha,i been a r,·signati,)n or not was a mailer that could only be determmed aiter hearing all witnesses and assessing their evidence I decided that I would not determine that matter. at tlu~ t11ae. aud that the pa1lll:S ~hH!ld nmtin:c thl'ir submissions to the first Jurisdictional issue identified above. Mr Hack, who represented the respondent, referred me to a decision of the then Presid,~.nl of the Indu.,trial Cuurt, t.k f.,~rsey P rn State Publu Serv1cn Federation Queensland Union of Employees v The State oJ Queensland (!99'/) 156 Q(rlG 102. tfo ind1cat.;d lhat His Honour had concluded that the effect of s. 492, and e~ecially mbsection.< (4) anct (5), was i.11Ch as to exclude the possibility of an accrued right, such that s. 20(l)(c) of the Acts Interpretation Act 1954 would require the applicat10n to be determined under the old Act. Accordingly, he submitted, the present application must he determined in accordance with the prnv1s1011s of lh:: .i.:w Act. 'Ilrnt 1,,, havrng r,.;gard td the restriction imposed by Regulation 34(2). In r efening to the applicability of s. S 13 on the application Mr Hack ~ubmitted that>· "The proper way to read (s. 492 and s. Si 3) together, in my mbmission, is this: That wher,· there is a parity between a prnvision in the old Ac, and a provi~ion in the new Act, then s. 513 would provide that the old provision would continue to apply. But where there 1-' no parity, where there is a provision which was not in the old Act, then subsection (4) of sectwn 492 lakes effect. T,, pu1 the rna11:cr at it;; simpk.<t, thcT:; 1s nothing in the old Act that is the equivalent of Regulation 34. If one gives effect to section 492 subsection (4) one must treat that a~ iucuqx>rating the provision.~ of l<t>gul.H!(•n 'l4. ( lthawise, one does not do justice to the legislative requirement that a proceeding may be carried on and prosecuted as if 1! Lad lwt·n '-!arL:d uukr the cmTc:spondinf provisions of this Act". Mr Hack also indicated that ~vcn if the applicant's argument that the old Act applied found fan,ur with the Commt,s,on the cuncnl form of Regulation i~ caught by virtue of secrion 290(4) of the o1d Act. Such Regulation inc!ud,2d s. 34(2), Mr R. Clarke, of Wallace and Wallace, who appeared for Mr Byrne, argued that 513 of the new A..:! governed the conduct of the pwceedings. He Cile;d a decision of Commissioner Swan m Ham v H. P. Wszola & Co. Public Accountants ( 1997 156 ()GIG 592 at -;:)4) tu support his subm1.s.-;ion. In that decision the learned Commissioner had dismissed a similar jurisdictional ,ugumem where the employe.: co'1cc>rnt·d h,id hef'n :-!ismiss,:d prwr to the enactment of the new legislation. The employee earned more than rhe limit set out in Rqmlation 34(2)(b)(iii). In deciding to dismiss the jurisdictional argument tht: Commissio1,er found that .,. 511 of the 11,:w Act applied on the basis of the gmnalia specialibus non derogant rule, i.e. where there is a conflict between general aud specific provisions, the sp,:cific prnvisions pn·va1L Mr Clarke also referred me to two other decisions where the operation of s. 51 '< had been considcrd. These W{~re decisu>ns ot Chief Industnal Commissioner Hall in Willenborg v Queensland ,"v'ickel Pty Ltd (1997) 155 QGIG 278 and Ilawm Guld Cua.rt Cif) Cu1mcil (1997; !5'.' QnlG 1143. Mr Clarke referred to the operation of s. 290(4) of the old Act and the operation of Regulations to exclude particular employees from the operation of certain provisions of Division 5 of the old Act He indicated that the Regulation:; made did not ,:exclude any employee., on the h;;isis of their lcYd of remuneration and to allow the respondent's contention would be to now allow into the old Ai-"t an exclu,wn of c;;rtain cmploycc:s whom th<.' legislature had previously not excluded from the op..°'ration of that Act. Conclusion Section 492 of the new Act states, inter al ia:- "(4) A proceeding started before the commeucemeut of thi.~ secrion under a provision of the n:peale<l Act and pendmg at the date ot the rept.al may be carried on and prosecuted as if it had been started under the co □ -,:sponding provision of this Act. QGIG 5/3/99 5 March, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 179 (5) A proceeding is taken to be part heard after the start of the hearing until the decision in the proceeding is given." Section 513 of the new Act states:- ''The repealed Act, part 12, division 5 continues to apply to a dismissal within the meaning of that division that happened before the commencement of this section.". The first provision is general, the seco11d specific. Ifs. 492(4) operated Mr Byrne's case would need to be ixosecuted as if it had bee.n started under the provisions of Chapter 5, P~ts 1 to 4, inclusive, _of the new Act as they are "the corresponding provision(s) of this Act" (In passmg 1t is worthwhile to note that Part 12, D1v1S1on 6 deahng with protection of injured employees - was not preserved and that any application made by an injured employee would clearly be prosecuted under the c.:orresponding provision of the new Act viz. Chapter 5, Part 5.) [f it had been the intention of Parliament that all dismissal applications be dealt with in accordance with the provisions in the new Act one would need to question why it saw fit to enacts. 513 especially given the differential_ treatment accorde~ to inJured employees, 'lhe answer is that Parli_ament decided that alleged unfair dismissals which occurred prior to the enactment ot s. 513 should contmue to be considered under the relevant provisions of the old Act Su~h position is consistent with the rule that legislation should not have retrospective effect (see Maxwell v Murphy (1957) 96 CLR 261 al 267 per Dixon J.) In my views. 513 deMly operates to the exclusion of the provisions of s. 492(4) of the new Act because of the generalia specialibus non demgant rule. Having decided that the application is to be decided pursuant to s. 513, that is, by reference to the provisions of Part 12, Division 5 of the old Act, it is nece~sary to consider the impact, if any, of Regulations made pursuant to the provisions of s. 216(5) of the new Act. It t$ clear that the Regulations made pursuant to the provisions of s. 290(4) of the old Act did not exclude any employee from the operation of Part 12, Division 5 ( or any part of it) on the basis of their salary level. However, the Regulations made pursuant to s. 216(5) of the new Act do exclude certain employees from the operation of Chapter 5, Parts 2 and 3, If their annual remuneration immediately before their dismissal is more than $64,000. It seems clear to me that because Mr Byrne's cessation of employment occurred before the commencement of the operation of s. 513 J can only have regard to the law as it stood prior to the enactment of the section. 'Ibis includes both the enacted law and the Regulations made pursuant to it under s. 290(4). To do otherwise would be to give retrospective effect to the operation of s. 216(5), and the Regulations made pursuant to that section, which would be contrary to all the rules of statutory interpretation (see, for example, Rodway v R (1990) 169 CLR 515) as well as the specific provisions of s. 34 of the Statutory instruments Act 1992. Accordingly, on the basis there was no regulation excluding Mr Byrne at the time of the enactment of s. 5 B I determine that the Commission does have Jurisdiction to consider Mr Byrne's application. I reiect the respondent's threshold argument that the applicant 1s an excluded employee because ot the effecr of Regulation 34(2)(b). The Commission orders accordmgly. A.L BLOOMFlELD. Commissioner. App~arances:- Mr R. Clarke, ot Wallace and Wallace, for Mr C. Byrne Rde.ased: 19 February 1999 Mr P. Hack, instructed by Mr A Ghusn of Macrossan and Amiet, for Mackay Port Authocity ########################################################################################################################### -- 2 of 2 --