Appeal against a decision of the Industrial Magistrate in matter no. M 131 of 2021 given on 20 October 2021

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2022 WAIRC 00070

DELIVERED : thursday, 17 FEBRUARY 2022

FILE NO. : FBA 7 OF 2021

Appellant

AND

Department of Education

Respondent

ON APPEAL FROM:

Jurisdiction : INDUSTRIAL MAGISTRATE’S COURT

Coram : INDUSTRIAL MAGISTRATE E O’DONNELL

Citation : 

File No : M 131 of 2021

Catchwords : Industrial Law (WA) - Appeal against decision of Industrial Magistrate - Jurisdiction of the court - Claim not within court's jurisdiction - Appeal dismissed

Legislation : Industrial Relations Act 1979 (WA) s 81A, s 83

  Public Sector Management Act 1994 (WA)

  Public Sector Management (Redeployment and Redundancy) Regulations 2014

Result : Appeal dismissed

Representation:

Counsel:

Appellant : In person

Respondent : Mr R Andretich of counsel

Solicitors:

Respondent : State Solicitor’s Office

Case(s) referred to in reasons:

Bluescope Steel (AIS) Pty Ltd and Another v Australian Workers’ Union (2019) 270 FCR 359

Grasby v R (1989) 168 CLR 

Reasons for Decision

THE FULL BENCH:

Background

1         The appellant was employed by the respondent as a level 7 employee in the position of Regional Coordinator Operations. On 23 September 2020 the appellant was made an offer of voluntary severance under the Public Sector Management (Redeployment and Redundancy) Regulations 2014.  The letter of offer from the respondent dated 23 September 2020 relevantly provided as follows:

I am pleased to be able to offer you voluntary severance in accordance with the provisions of regulation 11 of the Public Sector Management (Redeployment and Redundancy) Regulations 2014 (the Regulations).

The offer of voluntary severance is subject to you resigning your employment with the Department of Education effective no later than 4 weeks after the date of your acceptance of this offer.

In accordance with regulations 13 and 14 and as at the date of this letter, the estimated severance and leave payment amounts (subject to adjustment) that you would receive are outlined below:

Please Note: The final amounts that you will receive if you accept this offer are dependent upon the date of acceptance and the date your registration becomes effective (the maximum incentive payment of 12 weeks is included in the figures above).

If you accept this offer of voluntary severance and nominate an effective date of resignation, which is less than 4 weeks after the date you accept this offer, you will receive an incentive payment as calculated below:

An employee who accepts an offer of voluntary severance and resigns:

• less than 1 week after acceptance, receives an additional 12 weeks' pay

• more than 1 week and less than 2 weeks after acceptance, receives an additional 8 weeks' pay

• more than 2 weeks and less than 3 weeks after acceptance, receives an additional 4 weeks' pay

• more than 3 weeks and less than 4 weeks after acceptance, receives no additional pay.

While the Department of Education is obliged to and will deduct the amounts it is required to by law for taxation purposes in respect to the above payments, ultimately the taxation liability is determined by the Australian Taxation Office (ATO).  Consequently, if there are any discrepancies in the treatment of your personal taxation arrangement then you will be responsible for the payment of any additional taxation on these payments.

In considering the appropriateness of the acceptance of voluntary severance in your circumstances, you are strongly encouraged to obtain independent and professional financial advice.  You may also wish to seek advice from the ATO and your superannuation fund provider.

If you choose to accept the offer you must not subsequently be employed in the public sector before the expiry of a period of restriction.  The period of restriction applicable to you is equal to the total number of weeks in respect of which the severance payment was paid and will be 45 weeks.

Should you wish to accept this offer of voluntary severance, please sign the attached copy of this letter and return it to Joanne Bergmans at deployment@education.wa.edu.au by no later than Monday 16 November 2020.  If your acceptance is received after this date it will be invalid unless the Department of Education is prepared to accept it out of time.  Following receipt of your acceptance, a formal Letter of Severance will be provided to you to confirm the terms and conditions of your voluntary severance.  The amounts that will be paid to you will be adjusted to accord with your date of acceptance and the effective date of your resignation.

You should note that in the event you choose to not accept this offer, you will remain a registrable employee who may be transferred to another position; or where this is not possible, you may be registered for redeployment under regulation 18.

Please contact Joanne Bergmans on 9264 8718 if you require additional information concerning the offer of voluntary severance.

2         Subsequent to receiving the letter of offer, the appellant sought information and advice from officers of the respondent as to various matters.  The net effect of this was that the appellant maintained that he was only ultimately given three weeks to accept the offer of voluntary severance, instead of eight weeks as prescribed by the Regulations.  The appellant contended that this was because of incorrect advice that he received from officers of the respondent.  Thus, the appellant maintained that he had been deprived of five weeks’ salary, due to having to accept the offer earlier than he actually was required to do so.

3         The appellant commenced proceedings in the Industrial Magistrate’s Court, claiming that his shortened period of employment involved a contravention of both the offer of voluntary severance and the Regulations. In his statement attached to the originating claim, the appellant said ‘it is my view in the view of my legal counsel that I have been the victim of obvious injustice as the Public Sector Management (Redeployment and Redundancy) Regulations of 2014 referred to in section 94 of the Public Sector Management Act (1994) and my entitlements provided in the Offer of Severance dated 23 September 2020 were not fairly and properly applied to me.’  The appellant claimed a net amount of $10,417.86 for the alleged shortfall of his salary (AB2).  The respondent contested the appellant’s claim and contended that the court had no jurisdiction to deal with it (AB3-4).  The respondent made an application to the court to dismiss the appellant’s claim for want of jurisdiction (AB4-5).

4         The court listed the respondent’s application to dismiss the appellant’s claim on 20 October 2021. After hearing from the parties, her Honour, Industrial Magistrate O’Donnell, granted the respondent’s application and dismissed the appellant’s claim for want of jurisdiction (AB6-7).

The appeal

5         The appellant now appeals against the decision of the learned Industrial Magistrate to the Full Bench under s 84 of the Industrial Relations Act 1979 (WA). Whilst not entirely clear from the notice of appeal, it appears that the appellant contends that cl 51.1 of the now superseded Public Sector CSA Agreement 2019 was contravened.  It referred to matters of redeployment and redundancy being dealt with in accordance with the Public Sector Management Act 1994 (WA) and the Regulations.  When read with cl 61 – Dispute Settlement Procedure of the Agreement, the appellant seemed to suggest the latter gave the court jurisdiction to deal with disputes as to such matters. The appellant contended that the court was able to enforce statutory instruments such as Acts of Parliament and awards and industrial agreements.  The appellant contended that the respondent failed to comply with the Agreement, the PSM Act and the Regulations.  However, it was not entirely clear how it was that the appellant maintained that such contraventions arose.

Consideration

6         For the following reasons, which we can relatively shortly state, in our view the appeal is without merit and it should be dismissed.

7         The Industrial Magistrate’s Court is established under Part III of the Act as an inferior court of record.  As such, it has no inherent jurisdiction and powers and they are as specified in the Act: Grasby v R (1989) 168 CLR 1 per Dawson J at 16-17. The court’s jurisdiction is prescribed by ss 81A and 81AA of the Act as follows:

81A. Jurisdiction under this Act of industrial magistrate’s court

An industrial magistrate’s court has the jurisdiction conferred on it by sections 77, 80(1) and (2), 83, 83A, 83B, 83D, 83E, 96J, 97V(3), 97VJ(3), 97YC, 97YG, 110, 111 and 112.

81AA. Jurisdiction under other Acts of industrial magistrate’s court

In addition to its jurisdiction under this Act, an industrial magistrate’s court has the jurisdiction conferred on it by the following —

 (a) the Construction Industry Portable Paid Long Service Leave Act 1985 section 53;

 (ba) Part IV of the Long Service Leave Act 1958;

 [(bb) deleted]

 (bc) section 196(2) of the Children and Community Services Act 2004.

 [(b) deleted]

8         For present purposes, the jurisdiction of the court, set out in s 81A, which is relevant is s 83 of the Act, which is in the following terms:

83. Enforcing awards etc.

(1) Subject to this Act, where a person contravenes or fails to comply with a provision of an instrument to which this section applies any of the following may apply in the prescribed manner to an industrial magistrate’s court for the enforcement of the provision —

 (a) the Registrar or a deputy registrar;

 (b) an industrial inspector;

 (c) in the case of an award or industrial agreement, any organisation or association named as a party to it;

 (d) in the case of an award, industrial agreement or order, an employer bound by it;

 (e) any person on his or her own behalf who is a party to the instrument or to whom it applies;

 (f) if an employee under an employer‑employee agreement is a represented person, a representative acting on his or her behalf.

(2) In this section —

     instrument to which this section applies means —

 (a) an award; and

 (b) an industrial agreement; and

 (c) an employer‑employee agreement; and

 (d) an order made by the Commission, other than an order made under section 23A, 32, 44(6) or 66.

(3) An application for the enforcement of an instrument to which this section applies shall not be made otherwise than under subsection (1).

…..

9         It is immediately clear from s 81AA, that the PSM Act is not a specified statute (nor the Regulations made under it) from which the court obtains jurisdiction.  Thus, it can only be from s 83 of the Act (as referred to in s 81A) that the court may obtain jurisdiction in a case such as the present.  There is no doubt that for the purposes of s 83(2)(b), the Agreement was an ‘instrument to which this section applies’ in relation to the court’s jurisdiction to enforce such an instrument.  However, the court only obtains such jurisdiction and power if a claimant can establish that another person ‘contravenes or fails to comply with a provision of an instrument to which this section applies …’. 

10      In Bluescope Steel (AIS) Pty Ltd and Another v Australian Workers’ Union (2019) 270 FCR 359, Allsop CJ, in relation to the meaning of the word ‘contravention’ for the purposes of s 50 of the Fair Work Act 2009 (Cth), said at [15] to [16]:

In Parker v Comptroller-General of Customs (2009) 83 ALJR 494; 252 ALR 619 at [29]-[30] French CJ discussed the meaning of the word "contravention".  His Honour first referred to the Oxford English Dictionary meaning as "[t]he action of contravening or going counter to; violation, infringement or transgression".  At [30] French CJ said:

Without essaying an exhaustive definition, the core meaning of "contravention" involves disobedience of a command expressed in a rule of law which may be statutory or non-statutory.  It involves doing that which is forbidden by law or failing to do that which is required by law to be done.  Mere failure to satisfy a condition necessary for the exercise of a statutory power is not a contravention.  Nor would such a failure readily be characterised as "impropriety" although that word does cover a wider range of conduct than the word "contravention".

Whilst the word "contravention" is capable of a wide meaning, in the context of a civil remedy provision which includes the possible imposition of a civil penalty the word includes the notion of violating or infringing a rule or obligation or standard which is required.  One would not assume or conclude that Parliament would provide for the imposition of a penalty for doing or not doing something that one was not obliged not to do or not obliged to do.  One does not, in my view, contravene a non-obligatory term of an arrangement.  Section 51 of the Fair Work Act itself links the imposition of an obligation on a person to a contravention of a term of an enterprise agreement by that person.

11      Accordingly, it could only be if the appellant could establish that the respondent ‘contravened’, in the sense set out above, or failed to comply with the Agreement, that the court could grant a remedy.  No such contravention or failure to comply was able to be established in this case and the learned Industrial Magistrate was correct to dismiss the appellant’s claim as she did.

12      Whilst the appellant’s original claim before the court did not specify any particular breach of the Agreement, the appellant seems to have fastened onto comments by her Honour in the proceedings, that the only possible involvement of the Agreement was cl 51.1, which ‘acknowledged’ the application of the PSM Act and the Regulations as being the legislative framework under which matters of redeployment and redundancy will be dealt with.  Her Honour expressed the view (at pp 8-9 of the transcript at first instance) that in any event, cl 51.1 appeared not to assist the appellant, but even it if it did, the respondent did ‘acknowledge’ the PSM Act, and the Regulations, as the offer of voluntary severance to the appellant was made in accordance with their terms.

13      Relevantly, cl 51.1 of the Agreement provided at the material time as follows:

51. REDEPLOYMENT AND REDUNDANCY

51.1 The parties acknowledge that the Public Sector Management Act 1994 (PSMA) and the Public Sector Management (Redeployment and Redundancy) Regulations 2014 (Regulations) provide the legislative framework for redeployment and redundancy for all Employees covered by this Agreement.  If the provisions of this Agreement and the Regulations are inconsistent, the provision of the Regulations shall prevail.

14      In our view, cl 51.1 created no enforceable rights or entitlements capable of a contravention or failure to comply with the Agreement, for the purposes of the court’s jurisdiction under ss 81A and 83 of the Act.  Provisions such as cl 51.1 of the Agreement, merely refer to the law applicable to a particular subject matter, which applies irrespective of the parties’ ‘acknowledgement’, however it may be expressed.

15      Clause 51.1 was in similar terms to other clauses in industrial agreements that recognise or acknowledge existing legal obligations that lay elsewhere.  This is similar to clauses in industrial agreements that may refer to the intention of the parties to the agreement, as to how they intend to conduct themselves in their dealings with each other, the objectives of the agreement such as promoting cooperation and goodwill between the parties, which have been held to not create enforceable rights and entitlements.

16      In Bluescope Steel an issue arose as to whether a clause in an award dealing with superannuation, and which did no more than state the application of relevant federal legislation concerning superannuation, created rights and entitlements.  Allsop CJ at [9]-[17] considered the text of the clause and said at [13]:

The words of cl 7 of the 2006 Award are entirely free of any text connoting obligation.  There is only a recognition that Commonwealth legislation governs the matter of superannuation.  Nor does any language acknowledge any requirement to make contributions.  The reference to the Commonwealth legislation does not do that.  Such lack of acknowledgement of requirement reflects the legislation in which there is no statutory obligation placed on employers to make superannuation contributions on behalf of employees.  Rather, the legislation operates as a tax encouraging employers to pay superannuation contributions to avoid a significantly more expensive imposition of a (non-deductible) superannuation guarantee charge, if deductible contributions are not made.  In practical parlance it may be said that employers are required to make contributions for superannuation.  That is not the legal form or substance.  It is unnecessary at this point to explain the precise working of the superannuation legislation.

17      Collier J, after setting out the relevant authorities in relation to the distinction between agreement clauses that use ‘language of recognition’ rather than ‘language of obligation’ at [226]-[234], came to the conclusion that the relevant superannuation clause in the award did not contain any language of obligation. Her Honour said at [235]:

In light of the text of cl 7.1 of the Awards and the authorities I have just examined, it is clear that the language used in cl 7.1 of the Awards is the language of recognition only.  The language of that clause does no more than identify the federal legislative instruments that govern the minimum contributions of superannuation by employers.  As I have already said, that legislative regime also does not impose a binding obligation of [sic] the employer.  It follows that, insofar as concerns cl 7.1 of the Award, a lawful choice is open to an employer not to make a superannuation contribution, but be liable to pay the charge under the statutory regime.

18      In our view, there is no material difference between the language of recognition used in the award clause the subject of the proceedings in Bluescope and the language of acknowledgement used in cl 51.1 of the Agreement in this case.  In neither case was language of obligation used, creating enforceable rights and entitlements.

19      Furthermore, the reference to cl 61 – Dispute Settlement Procedure of the Agreement, does not assist the appellant and is misplaced.  It deals with the referral of disputes by the Union party to the Agreement, or an employer, to the Commission for resolution.  This clause has nothing to do with the enforcement of a right or entitlement before the court under ss 81A and 83 of the Act.

20      For the foregoing reasons, the appeal must be dismissed.