TERMINATION OF A UNION MEMBER

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES THE STATE SCHOOL TEACHERS UNION OF WA (INCORPORATED)

APPLICANT

-v-

MR PAUL ALBERT DIRECTOR GENERAL DEPARTMENT OF EDUCATION

RESPONDENT

CORAM COMMISSIONER J L HARRISON

DATE MONDAY, 22 AUGUST 2005

FILE NO. C 136 OF 2004

CITATION NO. 2005 WAIRC 02420

Catchwords Termination of employment - Harsh, oppressive and unfair dismissal - Jurisdiction of Commission to hear application  - General jurisdiction for industrial matters ousted by specific provisions for unfair dismissal - Industrial Relations Act 1979 (WA) s 7, s 29(1)(a)(ii), s 29(1)(b)(i), s 29(2), s29(3), s 44, s  44(9), s 44(6)(bb)(ii)

Result Jurisdiction found

Representation 

Applicant Mr A M Dzieciol (of counsel) by way of written submissions

Respondent Mr D Matthews (of counsel) by way of written submissions

Reasons for Decision

1         On 24 June 2004 the State School Teachers’ Union of WA (Incorporated) (“the applicant”) lodged an application in the Commission pursuant to s44 of the Industrial Relations Act 1979 (“the Act”) in relation to one of its members Prem Singh Malik claiming that Mr Malik had been unfairly terminated on or about 7 January 2003 by Mr Paul Albert, Director General Department of Education (“the respondent”).  After a conference was held in relation to this issue on 12 July 2004 the parties held discussions with a view to settling the dispute.  As the applicant advised that no agreement had been reached between the parties a further conference was held on 23 March 2005.  Following this conference the respondent was given further time to consider its position however no agreement was reached between the parties and the Commission advised the parties that as conciliation had been exhausted the matter was to be referred for hearing and determination pursuant to s44(9) of the Act.

2         As the respondent raised a preliminary issue of the Commission’s jurisdiction to deal with this application the parties filed and served written submissions in relation to this issue.

Respondent’s submissions

3         The respondent argues that in relation to a claim that an employee has been harshly, oppressively or unfairly dismissed only the employee may refer a claim of this nature to the Commission on the basis that there is a specific provision in the Act allowing an employee to make a claim alleging unfair dismissal.

4         The respondent argues that where both general and specific provisions relating to the same subject matter are contained in an act the general provision must give way to the specific provision.

5         Section 29 of the Act reads as follows:

“(1) An industrial matter may be referred to the Commission — 

 (a) in any case, by — 

(i) an employer with a sufficient interest in the industrial matter;

(ii) an organisation in which persons to whom the industrial matter relates are eligible to be enrolled as members or an association that represents such an organisation; or

(iii) the Minister;

  and

 (b) in the case of a claim by an employee — 

(i) that he has been harshly, oppressively or unfairly dismissed from his employment; or

(ii) that he has not been allowed by his employer a benefit, not being a benefit under an award or order, to which he is entitled under his contract of employment,

  by the employee.

(1a) A party to an employer‑employee agreement has the right to refer to the Commission constituted by a Commissioner where the Commission so constituted is the relevant industrial authority under Part VID —

(a) any question, dispute or difficulty that the Commission as so constituted has jurisdiction to determine under section 97WI; or

 (b) an allegation referred to in section 97WK(2).

(2) Subject to subsection (3), a referral under subsection (1)(b)(i) is to be made not later than 28 days after the day on which the employee’s employment is terminated.

(3) The Commission may accept a referral by an employee under subsection (1)(b)(i) that is out of time if the Commission considers that it would be unfair not to do so."

Even though the provisions of s29 of the Act allows a claim of unfair dismissal to be raised by both unions and employees the respondent argues that as an employee’s claim in relation to an unfair termination comes under a specific provision of the Act the existence of this provision therefore excludes reliance on the Commission’s general powers under s29(1)(a) of the Act to bring a claim for unfair dismissal (see Anthony Hordern and Sons Limited and Others v The Amalgamated Clothing and Allied Trades Union of Australia  (1932) 47 CLR 1).

6         The respondent argues that the way the Act is set out supports its argument.  The respondent maintains that as s29(2) of the Act expressly provides a time limit on referrals made under s29(1)(b)(i) this should be taken into account when interpreting s29 of the Act and the respondent argues that the presence of s29(2) in the Act adds weight to its argument that the specific power excludes resort to the more general power found in s29(1)(a).  The respondent maintains that s29(2) was enacted so as to stop unfair dismissal claims being brought after 28 days and to allow the applicant to prosecute Mr Malik’s claim that he was unfairly dismissed nearly two and a half years after the dismissal occurred is contrary to s29(2) of the Act.

7         The respondent claims that the existence of separate provisions in s29 of the Act for industrial matters and unfair dismissal and contractual benefits claims, which have been maintained throughout the history of the present act, should be taken into account when deciding this issue.

8         The respondent argues that if the Commission finds that it has jurisdiction in relation to this matter it will make an application pursuant to s27 of the Act that further proceedings are not desirable in the public interest.

Applicant’s submissions

9         The applicant submits that the respondent has misconstrued the Commission’s powers under the Act in relation to settling industrial disputes and argues that the respondent has not considered the difference between a referral of an industrial dispute to the Commission in relation to a claim of unfair dismissal of a union member pursuant to s29(1)(a)(ii) of the Act and an application made to the Commission by an individual pursuant to s29(1)(b)(i) of the Act.  The applicant submits that there is a significant difference in the nature of both of these applications and that this is recognised under the provisions of the Act.

10      The applicant argues that the Commission has jurisdiction to deal with this application which was lodged by the applicant under s44 of the Act to seek the assistance of the Commission in resolving a dispute between the applicant and the respondent about one of its members who it claims has been unfairly dismissed from his employment.  As conciliation pursuant to s44 of the Act did not resolve this dispute the applicant argues that it is open to the Commission to exercise its powers under s44(9) of the Act to determine the issue in dispute between the parties.

11      The applicant argues that the respondent’s interpretation of the Act is contrary to previous interpretations of the Act by the Commission about the interrelationship between s29(1)(a)(ii) and s29(1)(b)(i) of the Act.  The applicant argues that in this jurisdiction it is well accepted that a claim alleging that an employee has been harshly, oppressively or unfairly dismissed can be referred to the Commission by either an employee or by an organisation on his or her behalf (see Robe River Iron Associates v The Association of Drafting, Supervisory and Technical Employees of Western Australia (1987) 68 WAIG 11 and The Attorney General v Western Australian Police Officers’ Union of Workers (1995) 75 WAIG 3166).  The applicant maintains that these cases confirm that the Commission has power to adjudicate on and grant a remedy in relation to an unfair dismissal claim that is brought by an organisation on behalf of a member.

12      The applicant argues that this matter was further considered in Katina Pty Ltd trading as Kato Concrete Co v The Western Australian Builders, Labourers, Painters and Plasterers Union of Workers (1997) 77 WAIG 2863 whereby the Full Bench found that the Commission was able to deal with an unfair dismissal claim brought on behalf of a dismissed employee by his union.  The applicant relies in particular on page 2864 where his Honour the President states:

“A claim alleging unfair dismissal of a person eligible to be a member, by an organisation, is an industrial matter specifically authorised to be referred by s.29(1)(a)(ii).  That industrial matter by definition must include a claim by an organisation alleging unfair dismissal of an eligible person.”

and further:

“It is clear that the Commission has cognizance of and authority to enquire into an industrial matter subject to the Act.  It is clear that a referral of an industrial matter occurs by virtue of s.29 of the Act.  It is clear that the matter can and does come before the Commission generally under s.32 or s.44 of the Act.  It is clear therefore that by virtue of s.23 of the Act there is jurisdiction in and power in the Commission to take cognizance of, enquire into and deal with the referral of an industrial matter which is a claim of the s.29(1)(a)(ii) type whether for unfair dismissal or not.  However, that jurisdiction includes a “claim” by an organisation limited by s.29(1)(a)(ii) of harsh, oppressive or unfair dismissal of an individual employee.  S.23(3)(h) specifically refers to the power to be exercised upon such a claim. S.23A prescribes those powers.  (I would add that, particularly in a s.44 matter, a matter not originally a claim of unfair dismissal might become one, not the least by virtue of s.26(2) of the Act). ”

13       The applicant also relies on the following statement by Fielding SC in Katina Pty Ltd trading as Kato Concrete Co v The Western Australian Builders, Labourers, Painters and Plasterers Union of Workers (op cit) at page 2866:

“The Act not only authorises individual employees to bring an action alleging that they were harshly, oppressively or unfairly dismissed, but enables a claim of that nature to be brought by a union in respect of dismissed employees eligible to be members of that union.  The Act provides, also by section 29, that an industrial matter, as broadly defined, may be referred to the Commission by a union (section 29(1)(a)(ii)).  It is beyond question that an allegation that a former employee has been harshly, oppressively or unfairly dismissed is an industrial matter.  Indeed, that is self-evident from the fact that section 29 includes a claim by individual employees that they have been harshly, oppressively, or unfairly dismissed within the scope of industrial matters which may be referred to the Commission.”

14      The applicant maintains that Katina Pty Ltd trading as Kato Concrete Co v The Western Australian Builders, Labourers, Painters and Plasterers Union of Workers (op cit) has been followed by the Commission in other cases (see ALHMWU v Bega Garnbirringu Health Services Aboriginal Corporation (1998) 78 WAIG 3882 and also AWU v Eltin Surface Mining Pty Ltd (1999) 79 WAIG 1233).

15      The applicant relies on ALHMWU v Bega Garnbirringu Health Services Aboriginal Corporation (op cit) which it maintains confirms that the time limit contained in s29(2) is not relevant to an application brought under s44 of the Act.  In this decision at 3884 Parks C stated:

“A union, because of the status afforded to it by the Act, may refer a matter to the Commission in its own right and therefore it is a party principal to that referral and not simply the agent of an employee the subject of the industrial matter involved.  Hence, where in s29(1)(b)(i) it is provided that an employee may refer a claim of unfair dismissal to the Commission, such extends a limited right of referral to an employee, that is, the right of an employee as an individual to apply to the Commission for remedy.  Section 29(2) of the Act expressly refers to subsection (1)(b)(i) and limits the exercise of the right to refer expressed therein to not more than 28 days after the date of the applicant employee’s dismissal.  I therefore conclude that this time limit upon the referral of an unfair dismissal matter to the Commission does not apply to a matter referred to the Commission by a union acting in its own right, and therefore as a party principal, where the employee involved is the “claimant” but not the applicant.”

16      In response to the respondent’s foreshadowed application that if it is unsuccessful in its argument that the Commission does not have jurisdiction to deal with this application that it will apply to have the matter struck out, the applicant maintains that the substantial delays in dealing with this matter have not been of the applicant’s making and argues that since Mr Malik was terminated and lodged his application three days out of the prescribed timeframe for lodging an application of this nature delays have occurred due to the respondent’s actions.

Findings and conclusions

17      After carefully considering the parties’ submissions in relation to this matter it is my view and I find that a claim that an employee has been harshly, oppressively or unfairly dismissed is not restricted to being dealt with by the Commission under s29(1)(b)(i) of the Act and I find that the Commission can deal with the referral of an industrial matter that relates to a claim of unfair dismissal pursuant to s29(1)(a)(ii) and s44 of the Act.

18      It is my view that the terms of s29(1)(a)(ii) of the Act enables the Commission to deal with a claim alleging unfair termination notwithstanding the provisions of s29(1)(b)(i) of the Act.  Section 29(1)(a)(ii) allows an organisation to refer an industrial matter to the Commission on behalf of a person who is eligible to be enrolled as a member and in this instance the issue before the Commission relates to a s44 application concerning a dispute over an industrial matter as defined in s7 of the Act as it relates to Mr Malik’s rights as an employee due to his termination and it is the case that the applicant is an organisation representing one of its members.

19      I reject the respondent’s argument that because there is a specific provision in the Act allowing an employee to make a claim alleging unfair dismissal under s29(1)(b)(i) then this overrides the general provision of the Act whereby an application of this nature can be lodged under s29(1)(a)(ii).  Even though s29(1)(b)(i) provides a mechanism for an employee to lodge an application claiming unfair termination there is Full Bench authority, by which I am bound, which concludes that the existence of a specific provision in the Act does not always oust a general provision.  In Crewe and Sons Pty Ltd v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 2623 at page 2625 the Full Bench stated the following when commenting on the Commission’s powers under s44 of the Act, which it acknowledged is a section with a broad purpose, and its relationship to specific provisions contained in the Act:

“We would first mention some relevant principles relating to the interpretation of statutes.  An Act, like any document, must be read in its entirety.  In Metropolitan Gas Co v Federated Gas Employees Industrial Union (1924) 35 CLR 449 per Isaacs and Rich J.J. at 455, and K. & S. Lake City Freighters Pty Ltd v. Gordon and Gotch Ltd (1985) 60 ALR 509 at 514 it was said:-

"... every passage in a document must be read, not as if it were entirely divorced from its context, but as part of the whole instrument."

In other words, one should not read the section in isolation from the enactment of which it forms a part.

As a general rule, and one of last resort, the maxim generalia specialibus non-derogant applies to the resolution of internal conflicts between sections within an Act (see Perpetual Executors and Trustees Association of Australia Ltd v. FCT (1948) 77 CLR 1 at 29.  Indeed, when a single document is being considered, the draftsman will be more likely to have relied on the rule.

However, the approach should only be prayed in aid where there are two inconsistent provisions which cannot be resolved as a matter of interpretation (see Purcell v Electricity Commission of New South Wales (1985) 60 ALR 652 at 657.

Even a general provision may be seen to be intended to override a specific provision in an exceptional case (see Lyons v. Registrar of Trade Marks (1983) 50 ALR 496 at 506).

In considering the exercise of jurisdiction, one must advert to s.23 which confers jurisdiction "subject to this Act" and thus the jurisdiction is governed by a consideration of the provisions of the Act.  Thus, if the matter is brought under s.44, it must be dealt with in accordance with s.44, provided that that is the section which applies.”

and further at 2626:

“It is clear that s.44 prescribes a determinative process and the provisions of s.44 should not be read down (see R.R.I.A. v. A.M.W.S.U. and Others 69 WAIG 990 at 992 and 999).  S.44 provides a wide power to deal with industrial matters and settle disputes and contains specific reference to industrial action having occurred, or being likely to occur [see section 44(7)(b)].

In other words, it should not be read down because it is a section with a broad purpose.”

20      In Katina Pty Ltd trading as Kato Concrete Co v The Western Australian Builders’ Labourers, Painters and Plasterers Union of Workers (op cit) the issue of the Commission’s power to deal with an unfair dismissal claim under s44 of the Act as opposed to an application under s29(1)(b)(i) was considered and the Full Bench confirmed that the Commission has the power to deal with a claim alleging unfair dismissal under s44 of the Act.  The matter came before the Commission as a dispute under s44 of the Act and subsequent to conciliation concluding with no resolution being achieved, the matter was arbitrated pursuant to s44(9) of the Act.  In this decision His Honour the President stated the following at page 2864:

“For those reasons, I find no merit in the submissions for the appellant; in particular, the submission that a claim of harsh, oppressive or unfair dismissal means a claim by an employee and not an organisation is not compatible with the meaning of the sections to which I have referred read together in the context of the whole of the Act.

I have construed the relevant provisions of the Act, having regard to the objects and ascribing to the words their ordinary and natural meaning.  To do so results in no ambiguity or absurdity.  To do so does not place the provisions in conflict with the whole or other parts of the Act.  I have read the relevant provisions in the context of the whole of the Act.  The construction which I have reached has a powerful advantage in ordinary meaning and grammatical sense (see Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation 35 ALR 151 at 169-170 (HC) per Mason and Wilson JJ).”

21      When applying these authorities I therefore find that an application alleging unfair termination can be dealt with by the Commission under s29(1)(a)(ii) of the Act even though both general and specific provisions of the Act exist in relation to a claim of this nature and that as this application meets the requirements of s29(1)(a)(ii) of the Act the commission has jurisdiction to deal with this application.

22      In support of the conclusion I have reached that the Commission has jurisdiction to deal with this application I note that s23 of the Act, which deals with the jurisdiction of the Commission under the Act, was amended in 2002 by the Labour Relations Reform Act 2002 to include a new s23(3)(h) which reads as follows:

“(3) The Commission in the exercise of the jurisdiction conferred on it by this Part shall not — 

…

(h) on a claim of harsh, oppressive or unfair dismissal —

(i) in the case of an application under section 44, make any order except an order that is authorised by section 23A or 44; and

(ii) in any other case, make any order except an order that is authorised by section 23A.”

Clearly this amendment contemplates a claim of harsh, oppressive or unfair dismissal being dealt with under s44 of the Act.

23      Additionally the terms of s44(6)(bb)(ii) contemplates an application claiming unfair termination being made under s29(1)(a)(ii) and s44 of the Act.  Section 44(6)(bb)(ii) reads as follows:

“(6) The Commission may, at or in relation to a conference under this section, make such suggestions and give such directions as it considers appropriate and, without limiting the generality of the foregoing may — 

…

(bb) with respect to industrial matters —

…

(ii) without limiting paragraph (ba) or subparagraph (i), in the case of a claim of harsh, oppressive or unfair dismissal of an employee, make any interim order the Commission thinks appropriate in the circumstances pending resolution of the claim;”

24      Even though there is a time limit under s29 of the Act which restricts an employee’s entitlement to lodge an application alleging unfair termination, subject to the provisions of s29(3), it is my view that the Act confers on an employee organisation a different status to that of an employee.  Even though an employee’s rights to make an application is limited by having a timeframe within which to lodge an application it is a different situation to the ability of a union acting in its own right to make an application under s44 of the Act in relation to an industrial matter.

25      I make no comment about the respondent’s foreshadowed application on other grounds to dismiss this application as there is currently no application of this nature before me.

26      A declaration will now issue that the Commission has jurisdiction to deal with this application.