2001 WAIRC 02456
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES MARK ANTHONY TRANFIELD
APPELLANT
-V-

RAY DOUGLAS PARKER
RESPONDENT
CORAM FULL BENCH
HIS HONOUR THE PRESIDENT P J SHARKEY
COMMISSIONER A R BEECH
COMMISSIONER J H SMITH
DELIVERED TUESDAY, 3 APRIL 2001
FILE NO/S FBA 46 OF 2000
CITATION NO. 2001 WAIRC 02456

_______________________________________________________________________________
Decision Appeal upheld and the decision at first instance varied.
Appearances
APPELLANT MR D H SCHAPPER (OF COUNSEL), BY LEAVE

RESPONDENT MR L A TSAKNIS (OF COUNSEL), BY LEAVE, AND WITH HIM
Mr H M Downes

_______________________________________________________________________________

Reasons for Decision

THE PRESIDENT:

1 These are the unanimous reasons for decision of the Full Bench.
2 This is an appeal brought under s.49 of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”) against a decision of a single Commissioner given on 29 August 2000 in application No 23 of 2000.
3 The decision appealed against is an order that the application by the abovenamed appellant, Mr Mark Anthony Tranfield, be dismissed.
GROUNDS OF APPEAL
4 Mr Tranfield appeals on the following grounds:-
“The Commission erred in holding that it did not have jurisdiction to hear and determine the appellant’s claim”

BACKGROUND
5 Mr Tranfield had made application to the Commission at first instance by an application filed on 7 January 2000 pursuant to s.29 of the Act alleging that he had been unfairly dismissed by the respondent, claiming relief in respect of that dismissal and claiming contractual benefits.
6 The respondent is a single individual (not a firm) who conducts business under a name registered under the Business Names Act 1962 (the proprietor of the business was, at all material times, the respondent, Mr Ray Douglas Parker) and carried on the business of the survey and commissioning of marine vessels. In particular, the respondent provided, at all material times, surveying and commissioning services to the offshore oil industry worldwide. The firm had an office in Houston, Texas in the United States of America, but its head office and principal place of business is and was, at all material times, 49 Lockwood Crescent, Bunbury in the State of Western Australia.
7 Mr Tranfield was employed by the respondent from on or about 18 September 1998 until on or about 14 December 1999 as an oil rig surveyor and, more particularly, as a mechanic/surveyor. He came to be employed by the respondent after answering an advertisement published in the “West Australian” newspaper in approximately mid 1998 which advertised positions for oil rig surveyors, including a rig mechanic.
8 He was interviewed for the position in Bunbury by Mr Parker, and subsequently offered employment which he accepted. He was employed under the terms of a written contract entered into this State. It was a term of Mr Tranfield’s contract of employment that his “point of origin” was in Perth, Western Australia, from which he was to travel to the assignments, which would be provided by the respondent.
9 It was also a term of the contract that the respondent would reimburse Mr Tranfield for “any costs associated with obtaining visas as required for any project”. The respondent was to provide Mr Tranfield with living accommodation together with an accommodation allowance. The contract was terminable by either party giving “a minimum fourteen days’ notice”.
10 In the beginning, Mr Tranfield was sent to work in Singapore where he worked until the end of August 1999, when he was sent to work in France. There is no evidence that he ever worked in or was required to work in this State. There is no evidence of express prohibition upon his being required to work in this State and it was and is open to infer that he could, consistent with his employer’s requirements, having been required to work in this State.
11 On or about 14 December 1999, whilst in France, Mr Tranfield was told by Mr Parker that he was being sent on leave. A short time later, Mr Parker’s son told Mr Tranfield that he was to be dismissed. Mr Tranfield replied that, if he was to be dismissed, he would like to know before he went on leave. Nothing further was said about the matter and Mr Tranfield left to go on leave.
12 Mr Tranfield subsequently received from Mr Parker a letter dated 14 December 1999 advising him that his employment was terminated, allegedly for copying material owned by the respondent and breach of his contract of employment.
13 Mr Tranfield was, the Senior Commissioner found, dismissed from his employment without question and without notice for allegedly copying the respondent’s “formats and procedures and the lay out of books one through nine with exactly the same information as MOSC layout”.
14 Mr Tranfield denied copying the documents alleged to have been copied and denied that he was, in any other way, in breach of his contract of employment. He also asserted that he was given no opportunity to explain his actions, but was dismissed summarily.
15 Mr Tranfield alleged that his dismissal from the respondent’s employment was harsh, oppressive or unfair and sought relief in the form of compensation for loss of employment in the sum of US$23,920.00, representing the income which he would have earned in the six months following the termination of the employment, after taking into account earnings from other employment in that time. In addition, Mr Tranfield claimed the sum of US$7,168.00 as remuneration for work performed in December 1999 immediately prior to his termination of employment.
16 The respondent did not file a Notice of Answer or Counterclaim, but wrote to the Commission challenging the jurisdiction to entertain the application and otherwise disputing the merits of the claim. Furthermore, the respondent did not appear and was not represented upon the hearing of the application, notwithstanding that a Notice of Hearing was sent to its principal place of business. The respondent was subsequently informed by the Senior Commissioner of the submissions made by counsel for the appellant at the hearing and was invited to comment on those submissions. Despite being given another opportunity to respond to those submissions, the respondent did not do so.
17 The Senior Commissioner, at first instance, having given the respondent every reasonable opportunity, both before and after the appellant closed its case, to respond to the application, decided to deal with the matter on the basis of the material advanced by the appellant and did so.
COMMISSION’S FINDINGS
18 A number of findings were made by the Senior Commissioner at first instance:-
1. In Maloney v Hoffman (1980) AR NSW 318, for example, where relief was sought in proceedings before the New South Wales Industrial Commission under legislation relating to unfair, harsh or unconscionable contracts, the legislation was held not to apply to a contract made in that State by residents of that State because the contract related to work to be performed substantially out of the State.
2. There was no evidence in this case to suggest that Mr Tranfield, at any time, performed work in this State and, indeed, it was conceded on behalf of Mr Tranfield that all the work performed under his contract of employment “was, as a matter of fact, performed outside the jurisdiction”. By his letter of appointment, Mr Tranfield was told that he was to be sent to Singapore. At all material times, the work performed under the contract was performed in either Singapore or France.
3. There was no evidence that Mr Tranfield may have been required to perform work within Western Australia should the respondent have obtained work in this State. The mere possibility of work being performed in this State was not sufficient for these purposes.
4. As was indicated in Perrott v Xcellenet Australia Limited and Others (1998) 84 IR 255, the mere fact that some work was done in this State might not be sufficient to say that the work was done in an industry with a sufficient connection to this State.
5. Mr Tranfield was dismissed from employment from an industry in France, even though he received notification of his employment termination whilst he was in Western Australia. It cannot be the case that, simply because a person who has never worked in Western Australia, receives notification in Western Australia that he is dismissed from his employment performed wholly “offshore”, the Commission thereby has jurisdiction to entertain a claim of this kind. Were that the case, any migrant who came to live in this State could lodge a claim for relief in respect of employment in his or her native country as long as any statutory time limit for bringing such a claim was not a bar.
6. By virtue of the provisions of s.3 of the Act, the jurisdiction of the Commission is concerned with a dismissal from employment, if not in an industry carried on partly within this State, at least with a real and sufficient connection with this State.
7. A dismissal from employment in an industry in another place does not fall within the scope of the Act and the decision in Greenhalgh v Buon Amici WA Pty Ltd 80 WAIG 2719 is not authority to the contrary.
8. The same considerations apply with respect to the claim to recover the outstanding benefits due to Mr Tranfield under his contract of employment. If the contractual benefits are not an “industrial matter”, as defined, the Commission is without jurisdiction to grant relief in respect of the denial of any such benefits.
9. The manner of the dismissal, in itself, was so defective as to render it unfair.
10. Reinstatement was impractical.
11. The Senior Commissioner accepted the loss of earnings established and found that Mr Tranfield would be entitled to compensation in the sum of US$23,970.00, together with US$7,000.00 by way of benefits. This, of course, would only be the case were there jurisdiction.
REASONS
Jurisdiction
19 The Senior Commissioner was not satisfied that there was jurisdiction to entertain the claim for the following reasons.
20 First, he accepted that there were factual differences between those which arose in Harris v Brandrill Limited 80 WAIG 629 per Fielding SC and 80 WAIG 2456 (FB) and in this case. The Senior Commissioner held that nothing was put by counsel for Mr Tranfield which led him to change his view expressed in Harris v Brandrill Limited (Fielding SC)(op cit) that the jurisdiction of the Commission with respect to claims for relief arising out of harsh, oppressive or unfair dismissal depends upon the existence of a dismissal from employment in an industry with a real and sufficient connection with Western Australia. He accepted or found, however, as follows:-
1. That the contract of employment was made in Western Australia between residents of Western Australia.
2. The proper law of the contract is that of Western Australia.
3. The matter is not one of determining the proper law but a question of statutory interpretation as to whether the event in respect of which relief is sought falls within the scope of the relevant legislation.
4. Jurisdiction depends more on the location of the industry in which the aggrieved employee worked than the proper law of contract or the residence of the parties.
5. All work performed under the contract is performed outside the jurisdiction.
6. There was no evidence that Mr Tranfield may be required to perform work in Western Australia.
7. The mere possibility of work being performed within this State is not sufficient for these purposes.
8. Mr Tranfield was dismissed from employment in an industry in France, even though he received his notification from this State.
9. A dismissal from employment in an industry in another place does not fall within the scope of the Act.
10. The same considerations apply with respect to the claim to recover the outstanding benefits due to Mr Tranfield under his contract of employment.
11. The Senior Commissioner then went on to make findings of unfair dismissal of loss and of quantum of compensation.
ISSUES AND CONCLUSIONS
Principles
21 These matters have already been decided as matters of principle in Harris v Brandrill Limited (FB)(op cit) and in Fitzgerald v Oil Drilling & Exploration (International) Pty Ltd 80 WAIG 4981 (FB). Mr Schapper, who appeared for the appellant, sought to have the Full Bench overrule those cases as being in error if they were not distinguishable on the facts. We have already observed that, so as to avoid uncertainty, the Full Bench should not overrule a previous decision unless it has a conviction that that decision was wrong.
Precedent
22 A lower court (or tribunal), regardless of whether or not a majority ratio can be extracted from the decision of a higher court (or tribunal), is obliged to reach the same conclusion as to its ultimate judgment where the circumstances of the case before it are not reasonably distinguishable. The same principle will apply to a higher court (or tribunal) unless it is prepared to overrule its own previous decision (see MacAdam & Dyke “Judicial Reasoning and the Doctrine of Precedent in Australia”, page 213).
23 There is much to be said for the Full Bench adopting a general practice, as the High Court for the most part has, whereby leave will be required to be granted by the Full Bench before it will allow argument to be presented that it should depart from an earlier decision of its own (see Evda Nominees Pty Ltd v Victoria (1984) 154 CLR 311.
24 Further, the Full Bench should not readily overrule previous decisions. It should do so only with great caution. “Continuity and coherence in the law demand that in [the Full Bench] the principle of stare decisis should ordinarily be applied” (see Jones v Commonwealth of Australia (1987) 71 ALR 497; see also Re Tyler; Ex parte Foley (1994) 181 CLR 18 at 38). That has, of course, been the practice of the Full Bench.
Jurisdiction and Territoriality
25 The question in this case is not whether the Western Australian Parliament has authority to legislate as it has in s.29 of the Act, but whether it has purported to exercise that authority in relation to a dismissal such as this, which was effected within this State in relation to an employee who did not work, at any time, within this State, but who, as a resident of this State, entered into a contract of employment with an employer, a resident of this State.
26 The Federal and State Parliaments, being sovereign legislatures, may make laws having effect beyond the boundaries of their respective territorial jurisdictions.
27 At common law, all legislation is, prima facie, territorial (see The Merchant Service Guild of Australasia v The Commonwealth Steamship Owners Association and Others [1913] 16 CLR 664). However, an industrial dispute within jurisdiction has been held to exist in relation to industrial services not to be performed within Australia, because the disputants were, for the most part, connected by residence or the like with Australia and the demands were made here with respect to employment for which the masters, officers and engineers were engaged in. In R v Foster and Others; Ex parte Eastern and Australian Steamship Co Limited [1959] 103 CLR 256 at 275 per Dixon CJ and at 289 per Taylor J, the question arose whether a dispute was connected with Australia.
(a) The power to make laws for the peace, order and good government of a State does not enable the State Parliament to impose, by reference to some act, matter or thing occurring outside the State, a liability upon a person unconnected with the State whether by domicil residence or otherwise. But, it is within the competence of the State legislature to make any fact, circumstance, occurrence or thing in or connected with the territory, the occasion of the imposition upon any person concerned therein, of a liability to taxation or any other liability.
It may be assumed, too, that the State Parliament has power to legislate on matters relating to the relationship between employer and employee.
(b) It is also within the competence of the legislature to base the imposition of liability on no more than the relation of the person to the territory.
(c) The relation may consist in presence within the territory, residence, domicile, carrying on business or even remoter connections.
(d) If a connection exists, it is for the legislature to decide how far to go in the exercise of its powers. There must be a real and substantial connection even though the work is done elsewhere (see R v Foster and Others; Ex parte Eastern and Australian Steamship Co Limited (HC)(op cit)).
(e) As in other matters of jurisdiction or authority, courts must be exact in distinguishing between ascertaining that the circumstances over which the power extends exist and examining the mode in which the power has been exercised.
(f) No doubt, there must be some relevance to the circumstances in the exercise of the power.
(g) It is of no importance, on the question of validity, that the liability imposed is or may be altogether disproportionate to the territorial connection or that it includes many cases that cannot be foreseen.
(h) Relevant factors in determining a connection with this State may include the terms of the contract, the place where it was entered into, the nature and extent of the benefits received thereunder, the place where the breach occurred, and the nature and extent of the work performed. That is not an exhaustive list of factors.
Construing the Act
28 The question is whether the application of the Act is limited to unfair dismissals, that is, industrial matters occurring in Western Australia.
29 It is quite clear, as we have observed in Harris v Brandrill Limited (FB)(op cit) and Fitzgerald v Oil Drilling & Exploration (International) Pty Ltd (FB)(op cit) that the jurisdiction of the Commission, qua dismissals from employment is concerned with a dismissal from employment in an industry carried on in this State which is an industrial matter (and/or perhaps, at least, one with a real connection to this State but pursuant to the Act itself).
30 The answer to the question of jurisdiction in this case must be found within the Act itself. To paraphrase the question posed in Mynott and Others v Barnard (1939) 62 CLR 68 (a case followed by the Full Court of this State in Speldewinde v W D Scott & Co Pty Ltd [1982] WAR 341; in that case, the Full Court held that, on its proper construction, the Workers Compensation Act 1912-1978 (WA) did not apply to injuries resulting from accidents happening outside the State).
31 This Commission has cognisance of and authority to enquire into any “industrial matter”. For the purposes of construing what an “industrial matter” is, s.7 of the Act defines “employee”, “employer” and “industry” as follows:-
“employee” means, subject to section 7B — 
(a) any person employed by an employer to do work for hire or reward including an apprentice or industrial trainee;
(b) any person whose usual status is that of an employee;
(c) any person employed as a canvasser whose services are remunerated wholly or partly by commission or percentage reward; or
(d) any person who is the lessee of any tools or other implements of production or of any vehicle used in the delivery of goods or who is the owner, whether wholly or partly, of any vehicle used in the transport of goods or passengers if he is in all other respects an employee,
but does not include any person engaged in domestic service in a private home unless — 
(e) more than 6 boarders or lodgers are therein received for pay or reward; or
(f) the person so engaged is employed by an employer, who is not the owner or occupier of the private home, but who provides that owner or occupier with the services of the person so engaged;

“employer” includes, subject to section 7B — 
(a) persons, firms, companies and corporations; and
(b) the Crown and any Minister of the Crown, or any public authority,
employing one or more employees;”

““industry” includes each of the following — 
(a) any business, trade, manufacture, undertaking, or calling of employers;
(b) the exercise and performance of the functions, powers, and duties of the Crown and any Minister of the Crown, or any public authority;
(c) any calling, service, employment, handicraft, or occupation or vocation of employees,
whether or not, apart from this Act, it is, or is considered to be, industry or of an industrial nature, and also includes — 
(d) a branch of an industry or a group of industries;”

32 The definition of “industrial matter” expressly includes “the dismissal of any person” in an “industry”, as defined. Further, by virtue of s.7 of the Act, a dismissal of any person in an industry, as defined, is quite clearly and indisputably an industrial matter. It is, therefore, a matter of which the Commission has cognisance by virtue of s.23 of the Act. It is also an industrial matter which may be referred to the Commission by persons prescribed by s.29 of the Act, including by an employee. That was what occurred in this case.
33 The question is whether what was before the Commission was an “industrial matter”, as defined. If it were, then the matter was within jurisdiction.
34 First, it was not in issue that Mr Tranfield was an employee and the respondent was an employer, which they were, within the definitions (a) and (b) of “employee”, and (a) of “employer” in s.7 of the Act.
35 The question is whether the employee was employed in an industry as defined in the Act and, if he were employed in an industry, as defined, dismissed whilst employed in that industry.
36 The facts are quite clear. Mr Tranfield entered into a written contract of employment in Western Australia. Clause (1) of the written contract describes the “Point of Origin” in Western Australia (see exhibit 5 (page 43-48 of the appeal book (hereinafter referred to as “AB”))). At the time, Mr Tranfield resided in Western Australia and continued to do so until the time of his dismissal, at least, and so did the respondent.
37 At all material times, the respondent’s head office of his business was situated in Bunbury in this State, although it had a branch office in Houston, Texas in the United States of America. The address is described as the principal place of business in the extract from the Business Names Register (see exhibit 1, pages 30-33(AB)). The nature of the respondent’s business was a worldwide one involving providing services to the oil drilling industry (see the assertion in the advertisement for the position (exhibit 2, page 34(AB)) which is conducted in many parts of the world, a fact of some notoriety. The contract of employment was entered into in this State and within the jurisdiction of this Commission.
38 Mr Tranfield carried out his actual employment (i.e. performed his employment duties) in Singapore and France. He did not, at any time, carry out such duties in Western Australia, although he continued to reside here. He was paid here by the respondent and he was paid to travel overseas to work. Further, he was, and one assumes, placed in paid accommodation overseas and paid an accommodation allowance. At least, he was entitled to those benefits under the contract of employment. He was paid his wages in this State within the jurisdiction by the respondent from its head office, one infers. He also travelled backwards and forwards from Western Australia to Singapore and France respectively.
39 Notably, the written contract of employment called a “Letter of Understanding” (see exhibit 5, pages 43-48(AB)) contains no specific reference to work occurring in or off Western Australia, but there is no exclusion of such employment and Mr Schapper’s submission that the employer could have deployed Mr Tranfield in Western Australia (including off the Western Australia coast) we accept.
40 The dismissal was effected by a letter (exhibit 6, page 49(AB)) dated 14 December 1999. Mr Tranfield received that letter at his home in this State. (The Senior Commissioner found that the notification of dismissal occurred in this State.) After the dismissal, he was paid about $US15,000.00, being wages owing. He said, however, that he was still owed $US7,168.00 for wages.
41 We should observe that, prima facie, a person within the jurisdiction is able validly to file an application under s.29 of the Act to serve upon a person within the jurisdiction which is what occurred in this case. However, one then may have to go further and determine whether the matter is within jurisdiction as an “industrial matter”.
42 By the most apposite definition of “industry” ascertained in s.7 of the Act, the person dismissed is dismissed in an “industry”, for the purposes of the definition, if he/she has been dismissed as an employee of an employer whose business, trade, manufacture, undertaking or calling is within the jurisdiction.
43 In the Industrial Conciliation and Arbitration Act 1912-1952, “industry” was defined in s.6 as follows:-
“Industry means any business, trade, manufacture, undertaking or employment in which workers are employed”

That is not significantly different from the definitions in the current legislation.
44 Burnside J, in Metropolitan Shop Assistants' and Ware Employees' Industrial Union of Workers v Foy and Gibson Pty Ltd (1912) 11 WAR 113, by reference to that definition in the 1912 Act, defined “industry” to mean “that branch of art where labour is employed for the production of wealth or value and in which capital is employed.”
45 “Industry”, as defined, has also been held to mean the common object sought to be obtained by the combined efforts of the employer and the worker (see also the identification of an industry in the definition by reference to the vocation or calling of employee) (see Parker and Son v Amalgamated Society of Engineers (1926) 29 WAR 90).
46 Whilst “undertaking” is a word of variable meaning, basically it conveys the idea of a “business” or “enterprise” and is frequently used where it can be interchanged with the word “business” or “enterprise” (see reference under Electricity Commission (Balmain Electric Light Co Purchase) Act 1950 [1957] SR(NSW) 100 at 128 per Sugerman J and see Top of the Cross Pty Ltd v Federal Commissioner of Taxation (1980) 50 FLR 19 at 36 per Woodward J.
47 A business is a word of “large and indefinite import”, but its evident and reasonable meaning is “something which is followed and which occupies time and attention and labour for profit” (see per Osler JA in Rideau Club v Corp of City of Ottawa (1907) 15 OLR 118 at 122, citing Smith v Anderson (1880) 15 Ch D 247 at 258).
48 “Business” often includes “trade and a stated occupation or trade” (see Cooney v Council of Municipality of Ku-ring-gai [1963] 114 CLR 582 at 602 per Menzies J). Business does not, of course, have to be carried on for profit (see South-West Suburban Water Co v St Marylebone Guardians [1904] 2 KB 174 at 180) to be accounted a “business”, as defined.
49 To carry on a “business” which is, by definition, an “industry” (see s.7 of the Act), a person may be financially interested, but he/she must give attention or perform work for the maintenance or furtherance of the undertaking and devote time to the accomplishment of its objects. That activity, we would observe, is clearly what a head office engages itself in and the activity is conducted there by the employer, his/her or its officers and/or employees. There was no suggestion that the respondent did not involve himself in the business and there is, in fact, evidence that he did.
50 We refer, too, to s.24 of the Business Names Act 1962, which reads as follows:-
“24. A document purporting to be
(a) a certificate of registration issued under this Act;
(b) a copy of or extract from the register or a copy of or extract from a document forming part of the register issued under paragraph (a) of subsection (1) of section twenty-three;
(c) a certificate issued under paragraph (b) of subsection (1) of section twenty-three; or
(d) a combination of two or more of the certificates, copies or extracts referred to in paragraph (a), (b) or (c) of this section, is in all courts and before all person having authority to hear, receive and examine evidence prima facie evidence of any matter contained or set out therein.”

51 That, in its terms, is significant. The certificate reveals that the address at Lockwood Crescent is the principal place of business.
52 The question was whether the employer’s industry, being his business, trade, manufacture, undertaking or calling, as a marine commissioner and surveyor, was carried on within the jurisdiction. If it was, that is an end of the matter because Mr Tranfield was then an employee dismissed within the jurisdiction by an employer in an industry within the jurisdiction.
53 The Senior Commissioner found that the respondent carried on a business. That finding was not challenged. The evidence was that the respondent carried on the business, undertaking, trade or calling of the survey and the commissioning of marine vessels. There was ample evidence that that was the business carried on and, equally, what it did could be described as an undertaking, a trade and the calling of the employer within the definition of these words and the authorities relating thereto to which we have referred above. That that business, through the activities of the head office, was carried on in Western Australia is undisputed and perfectly clear.
54 The carrying on of a business, calling or undertaking by oneself or through labour cannot be restricted to the doing of the actual activities which that calling or that business requires to be done. In other words, a business constituting an industry is not carried on by being restricted to the doing of the actual work of marine commissioning and surveying only. The business or undertaking is carried on or conducted, too, by management, administration, financial control and activity, marketing and advertising, canvassing prospective customers, personnel management and other activities.
55 The head office was, by implication and in fact, the centre of this, at least insofar as Mr Tranfield was concerned.
56 Indeed, there is authority for the proposition that business can only be said to be carried on where it is managed. A man can carry on business in different places but, in general, the place of business must be the place where the general superintendence and management take place (see Brown v London & North Western Railway Co (1863) 32 LJQB 318 at 321 per Blackburn J; see also Nelson v Evans [1923] St R Qd 158 at 161). That place is notoriously primarily, but no solely, a head office.
57 That Mr Tranfield was therefore engaged in an industry, as defined, and that the respondent was an employer employing an employee or employees in the industry was clear. That the respondent was engaged in activities in connection with the industry overseas and out of the jurisdiction was clear. That the activities in which this employee was involved were all conducted outside the jurisdiction was clear, for those reasons.
58 Hence, it is clear that the industry, being a business, an undertaking and a calling, was carried out in part at the head office in Bunbury because “head office” connotes the final superintendence and management office. The office of the respondent was registered, too, under the Business Names Act 1962 as the principal office and its importance was not disputed. In this case, it was certainly the major place of superintendence and management and the business residence of the respondent within the jurisdiction.
59 The job was advertised in this State, the interview was conducted in this State, the contract was entered into, the termination emanated from within and was effected in this State, Mr Tranfield was paid in this State and from head office, and he was employed in and dismissed in an industry, in part, conducted in this State. It was therefore geographically within this jurisdiction. That it was not denied that he could have been directed to carry out his actual work in this State or within this jurisdiction confirms such a conclusion. It is not to the point that this was a possibility only.
60 This dismissal was a dismissal within the definition of “industrial matter” in s.7 of the Act, and therefore within jurisdiction. There was jurisdiction in the Commission to hear and determine the matter and the Senior Commissioner at first instance erred in not so finding. Those facts support a finding that this was an “industrial matter”, as defined, within the jurisdiction.
61 Further, because of the dismissal and/or the contract which was entered into within the jurisdiction, the matter was plainly a matter which affected the rights and obligations of employers and employees in an “industry”, as defined. In addition, prima facie, Mr Tranfield, as a resident of the jurisdiction was entitled, prima facie, to issue the application and serve it upon the respondent who resided, for business purposes at least, within the jurisdiction.
62 Insofar as a connection, as referred to above, is necessary or material, then we should make the following further observations. Many of the authorities referred to are not, on reflection, because they do not refer to an “industrial matter”, relevant, in our opinion.
63 The workers compensation authorities Mynott and Others v Barnard (HC)(op cit) and Speldewinde v W D Scott & Co Pty Ltd (op cit) refer to accidents which occur elsewhere than in the jurisdiction where the contract of service was entered into. (Factually, even if those authorities were relevant, this case is distinguishable any way, because the dismissal itself, if that is equitable to the accident in Mynott and Others v Barnard (HC)(op cit) and Speldewinde v W D Scott & Co Pty Ltd (op cit), occurred within the jurisdiction.) They involve the construction of entirely different acts. We adopt what Lee J said in Jeffries v William Adams & Co [1982] 1 IR 273 at 274:-
“The agent for the employer argued that the magistrate was correct in having regard to the locality of the employment and referred to the judgment of Latham CJ in Mynott v Barnard (1939) 62 CLR 68. In my view, a sufficient answer to that contention appears in a passage from the judgment of Beattie J in the NSW Industrial Commission in Tod & Tod v Reiher and Bemrose [1960] AR (NSW) 64. The learned judge was concerned with the application of an industrial award of a State tribunal to employees crossing State borders in the course of their work and said at p.67: “... The matter must be determined on first principles as one of construction of the Industrial Arbitration Act and of the relevant award. Mynott v Barnard was a decision on the construction of a particular Act, and one dealing with workers’ compensation. I do not regard it as decisive of the present point of law, which involves the interpretation of a different statute dealing with a different field of law. The judgments of the learned members of the Court are, of course, helpful as a guide to the approach to be made in considering the territorial application of a statute, but the decision itself does not help Mr Dillon’s case, nor can it be said that the ‘locality of employment’ test, which Mr Jeffrey has sought to apply in the present case, had the approval of a majority of the bench.””

64 We are assisted, too, in the context of “connection” between the jurisdiction and an extra-territorial event, by the judgment of Lee J in Jeffries v William Adams & Co (op cit), where His Honour quoted from the dictum of Dixon J, as he then was, in Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337 at 375, where His Honour said:-
“The power to make laws for the peace, order and good government of a State does not enable the State Parliament to impose by reference to some act, matter of(sic) thing occurring outside the State a liability upon a person unconnected with the State whether by domicil, residence or otherwise. But it is within the competence of the State legislature to make any fact, circumstance, occurrence or thing in or connected with the territory the occasion of the imposition upon any person concerned therein of a liability to taxation or of any other liability. It is also within the competence of the legislature to base the imposition of liability on no more than the relation of the person to the territory. The relation may consist in presence within the territory, residence, domicile, carrying on business there, or even remoter connections. If a connection exists, it is for the legislature to decide how far it should go in the exercise of its powers. As in other matters of jurisdiction or authority courts must be exact in distinguishing between ascertaining that the circumstances over which the power extends exist and examining the mode in which the power has been exercised. No doubt there must be some relevance to the circumstances in the exercise of the power. But it is of no importance upon the question of validity that the liability imposed is, or may be, altogether disproportionate to the territorial connection or that it includes many cases that cannot have been foreseen.”

65 Insofar as the facts supporting a finding of the necessary connection (insofar as such a finding is necessary) might be different from the facts which have to be found to support a finding that there is an “industrial matter” within the jurisdiction of the Commission, then we would observe that there are a number of relevant factors which include:-
(a) the terms of the contract;
(b) the place where it was entered into;
(c) the nature and extent of the benefits received thereunder;
(d) the place where the dismissal occurred;
(e) the nature and extent of the work performed outside the jurisdiction;
(f) the extent of the conduct of its business, trade, undertaking or calling, potential or actual, of the employer within the jurisdiction; and
(g) whether there were variations to the original contract.
66 The list is not exhaustive. In this case, as the Commissioner found, the contract was entered into in the jurisdiction, the wages and other benefits, save and except accommodation, were paid and payable within the jurisdiction, the dismissal was effected within the jurisdiction, the extent of the conduct of the head office of the business was significant. The actual work was performed outside the jurisdiction, but it was performed by an employee in an industry within the jurisdiction.
67 Many of those facts will be relevant, too, to a finding whether the matter is an “industrial matter” within a proper construction of the Act, and findings of fact within the consequent interpretation. It is, of course, not necessarily fatal to a finding of jurisdiction that work is performed by the employee outside the jurisdiction, if there are other countervailing factors, as there were here. The location of the work, whilst not always the most important factor, may well be. In this case, it was open to find that the contract could encompass work within Western Australia. However, the extent of the work done outside the jurisdiction may not be fatal, in some cases, to a finding that the matter was an “industrial matter”, as defined, and/or that there was the requisite territorial connection with this jurisdiction.
68 In Harris v Brandrill Limited (FB)(op cit), there was a clear intention that the employee would be employed in the South African mining industry. In Fitzgerald v Oil Drilling & Exploration (International) Pty Ltd (FB)(op cit), the employer did not have a head office here, although that fact will not necessarily be fatal to a finding of jurisdiction in this Commission.
69 Our observations above are sufficient to demonstrate that the claim for contractual benefits was also within jurisdiction and should have been found to be, for the same reasons.
70 For those reasons, the Senior Commissioner erred in failing to find jurisdiction and the appeal is made out, in our opinion.
ORDERS SOUGHT
71 It was submitted for the respondent that, if the appeal were upheld, then the question of liability of damage should be remitted back to the Commission to hear and determine. The Senior Commissioner made findings that there was an unfair dismissal and, as to loss, assessed compensation.
72 Mr Schapper reminded the Full Bench that it was not uncommon in personal injury actions, even where the action was dismissed on the liability question, for courts to make findings as to damages. That is, of course, so. Such a course is taken to avoid unnecessary expense and delay.
73 In this case, the respondent declined every opportunity afforded him, at first instance, to be heard, and it was open to and correct that the Senior Commissioner made the findings which he did.
74 The respondent should not now be permitted to put Mr Tranfield at a disadvantage by re-opening matters, in relation to which, if he had attended the hearing at first instance, he would have had every opportunity to be heard.
FINALLY
75 We have considered all of the evidence, submissions and material. We would uphold the appeal. We would make the same findings and vary the order made at first instance to record a finding that Mr Tranfield had been unfairly dismissed and order that the respondent pay to Mr Tranfield within seven days the sum of $US23,920.00 by way of compensation and $US7,168.00 by way of outstanding contractual benefits, being a total of $US31,088.00. We would, of course, delete the order dismissing the application. We would issue a minute to reflect that order.