WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Christos Triantopoulos

APPLICANT

-v-

Shell Company of Australia Ltd

RESPONDENT

CORAM Acting Senior Commissioner P E Scott

HEARD Monday, 23 August 2010 AND submissions in writing

DELIVERED FRIday, 7 JANUARY 2011

FILE NO. B 54 OF 2010

CITATION NO. 2011 WAIRC 00004

CatchWords Industrial law – Whether the Commission has jurisdiction to deal with claims for enforcement of contracts of employment against national system employers – Whether denied contractual benefit claim referred under s 29(1)(b)(ii) is a non-excluded matter under the Fair Work Act 2009 s 27(2)(o) – Common law contracts – Exercise of judicial power – Comparison with South Australian legislation  – Contract of employment – Denied contractual benefits – National system employer – Enforcement – Industrial matter – Powers of the WAIRC – Fair Work Act 2009 s 26, s 26(1), s 26(2), s 26(2)(e), s 26(3), s 27, s 27(1A), s 27(2)(o), s 541, s 542, s 543 – Fair Work Act 1994 (SA) s 11, s 12, s 13, s 14, s 15, s 26, s 26(1) –  Fair Work Bill Explanatory Memorandum – Industrial Relations Act 1979 s 7, s 7(1a), s 23, s 23(1), s 23A, s 23A(1)(a), s 23A(1)(ba), s 26, s 26(2), s 29(1), s 29(1)(b), s 29(1(b)(i), s 29(1)(b)(ii), s 83, s 83A – Workplace Relations Act

Result Jurisdiction found

Representation 

Applicants Mr P Mullally as Agent

Respondent Mr D Parker of counsel

Reasons for Decision

1          The applicant claims that he had a contract of employment with the respondent which entitled him to redundancy pay as a result of the termination of his employment by the respondent and he has referred that claim to the Western Australian Industrial Relations Commission (the Commission) pursuant to s 29(1)(b)(ii) of the Industrial Relations Act 1979 (the IR Act).

2          The respondent does not concede that it was the applicant’s employer.  However, for the purposes only of the determination of a jurisdictional issue raised by the respondent, it has made explicit assumptions of fact and law for the purposes of its submissions, being:

“(a) At all relevant times, the Applicant was employed by the Respondent under a valid contract of employment; and

(b) At all relevant times, the employment contract referred to above provided for certain entitlements.” 

3         The parties agree that the respondent is a national system employer pursuant to the Fair Work Act 2009 (Cth) (the FW Act).

The Respondent’s Submissions

4         The respondent says that the Commission does not have jurisdiction to deal with this claim because the FW Act generally excludes the application of the IR Act to national system employers and in particular that s 27 of the FW Act provides that the general exclusions in s 26 of the FW Act do not apply to laws which deal with any non-excluded matters.  The relevant non-excluded matters referred to in s 27(2)(o) of the FW Act are claims for the enforcement of contracts of employment.

5         The respondent says that the Commission does not have jurisdiction and is not empowered to “enforce” a common law contract of employment within the meaning of that term in s 27(2)(o) of the FW Act.  Its jurisdiction is limited to inquiring into and dealing with an industrial matter (s 23(1)) of the IR Act. 

6         As the term “enforce” is not defined in either the FW Act or the IR Act, the respondent refers to the ordinary meaning of the term being “to compel observance of” according to the Oxford Dictionary.  The Commission does not have jurisdiction to compel or force a party to a matter before it to observe the terms of a contract of employment.  Its jurisdiction is to enquire into and deal with an industrial matter, which may culminate in the Commission making a decision or an order.  If that order is not complied with then the order may be “enforced” in a court.  The respondent says that “enforce” in s 27(2)(o) of the FW Act means an ability to compel the observance of its decision in relation to the claim.  The Commission does not have jurisdiction to compel observance of its decision in relation to an industrial matter and so it does not have jurisdiction to compel observance of a contract of employment. 

7         The respondent says “[t]he WAIRC’s ability to enquire into and deal with claims made under section 29(1)(b)(ii) of the IR Act is not a law dealing with a non-excluded matter for the purposes of the FW Act.” 

8         The meaning of “enforce” under the FW Act can be ascertained by reference to the Explanatory Memorandum to the Fair Work Bill where at page 21, it states that:

  “… [Section 27] saves State or Territory laws dealing with the following non-excluded matters …

• claims for enforcement of contracts of employment (e.g., under section 14 of the Fair Work Act 1994 (SA)), but not the variation or setting aside of unfair contracts.”

9         Therefore the respondent says that the Commonwealth Parliament’s intention in respect of the meaning of the term “enforce” is to be informed by the operation of s 14 of the Fair Work Act 1994 (SA) (the FW Act (SA).  The FW Act (SA) establishes both an Industrial Relations Commission and an Industrial Relations Court with distinct jurisdictions.  The Industrial Relations Commission is similar in nature to the Commission and its jurisdiction is to “hear and determine any matter or thing arising from or relating to an industrial matter” (s 26 of the FW Act (SA)).  By contrast the Industrial Relations Court’s jurisdiction includes:

(i) interpreting awards and enterprise agreements;

(ii)  deciding questions of law and jurisdiction;

(iii)   making declaratory judgments;

(iv)   deciding monetary claims; and

(v)   granting injunctive relief. 

10      Section 14 of the FW Act (SA) gives the Court jurisdiction to hear and determine monetary claims for a sum of money due to an employee or former employee from an employer or former employer, under a contract of employment.  There is no requirement for the monetary claim to be an industrial matter.  Section 15 of the FW Act (SA) provides the Court with jurisdiction to order a person who contravenes or fails to comply with a provision of the FW Act (SA) to remedy or avoid the contravention. 

11      The respondent says that the Commission’s jurisdiction under s 23(1) of the IR Act is to enquire into and deal with industrial matters and it does not have the ability to enforce its own decisions or orders.  Rather the Registrar, or another person specified, must apply to the Industrial Magistrate’s Court to enforce an order of the Commission and the Industrial Magistrate’s Court may then compel a remedy to be afforded (ss 83 and 83A of the IR Act). 

12      The respondent says in those circumstances the enforcement provisions are those applicable to the Industrial Magistrate’s Court and in limited circumstances to the Full Bench of the Commission to enforce some provisions of the IR Act and impose penalties if required.  However, the Commission, when dealing with industrial matters under s 23(1) of the IR Act, has no enforcement jurisdiction and cannot compel a party to comply with an order.

13      In those circumstances the respondent says that the Commission has no jurisdiction to deal with the claim as the IR Act is not a law to deal with claims for enforcement of contracts of employment.

The Applicant’s Submissions

14      The applicant says that an interpretation of s 27(2)(o) of the FW Act, which promotes the purpose or object underlying that Act, should be preferred to a construction that would not promote the purpose of that Act (see Acts Interpretation Act 1901 (Cth) s 15 AA). 

15      The applicant notes that the FW Act provides for applications to the Federal Court and the Federal Magistrate’s Court for entitlements under the safety net contractual entitlements in ss 541, 542 and 543.  The applicant’s claim is not of that nature and if the respondent is correct, then the industrial matter referred by the applicant has no appropriate forum other than the common law courts, which the respondent says is not in the spirit of either the IR Act or the FW Act.

16      The applicant says that the preferred construction of s 27(2)(o) of the FW Act is that the non-excluded matter now enables an employee under a common law contract to have a forum for redress where his existing rights are disputed whereas under the Workplace Relations Act there was no such ability. 

17      The South Australian legislation is said to be merely one example of a legislative framework which is preserved in a State and that this is not confined. 

18      The applicant says that if enforcement is defined to mean only existing or determined rights such as those found in awards and orders, it would mean that claims such as the one made by the applicant for determination of the common law contract continue to be excluded when such a position is not evidenced from the changes to the federal industrial law, which was previously excluded under the Workplace Relations Act but now has “… a broad coverage in S27(2)(o)” of the FW Act.

19      The applicant says that a claim referred by an employee pursuant to s 29(1)(b)(ii) of the IR Act sees the Commission dealing with a claim for the enforcement of an existing right, and the Commission is engaged not in an arbitral function but in a judicial function not unlike that exercised in the Industrial Relations Court of South Australia (see Conti Sheffield Real Estate v Denise Brailey (FB) (72 WAIG 1965 at 1969)). 

20      The applicant says that the claim in this matter is the referral of a dispute by the applicant with his employer regarding his right to the payment for the termination of his employment due to redundancy.  It is a claim for enforcement of his contract of employment and that is a “non-excluded matter” as set out in s 27(2)(o) of the FW Act.  Therefore it is within the Commission’s jurisdiction. 

The Respondent’s Reply

21      The respondent says that the purpose and underlying object of the FW Act is to create a comprehensive workplace relations system for national system employers and national system employees.  There are only limited exceptions to that broad purpose and they are listed in non-excluded matters.  The Commission should prefer a construction which promotes the purpose or object underlying the FW Act, that is the creation of a comprehensive workplace relations system for national system employers and national system employees.  There is no case for an expansive reading of s 27(2)(o) of the FW Act.

Consideration

22      There is no dispute between the parties that the respondent is a national system employer as defined by the FW Act.

23      The inter-relationship between the FW Act and the IR Act in respect of a national system employer and a national system employee is set out in ss 26 and 27 of the FW Act.  Section 26(1) provides that:

“26(1)   This Act is intended to apply to the exclusion of all State or Territory industrial laws so far as they would otherwise apply in relation to a national system employee or a national system employer.”

24      Section 26(2) defines a State or Territory industrial law.  There is no dispute that s 26(3) of the FW Act specifies the IR Act as being a general State industrial law referred to in s 26(1).

25      Section 27(1A) specifies those laws to which s 26 does not apply.  Subsection (1) says that:

“Section 26 does not apply to a law of a State or Territory so far as:

 …

(c)               the law deals with any non-excluded matters; or

…”

26      Subsection (2) specifies the “non-excluded matters” as including:

“(o)  claims for enforcement of contracts of employment, except so far as the law in question provides for a matter to which paragraph 26(2)(e) applies; …”.

27      I note that paragraph 26(2)(e) is not relevant for the present purposes. 

28      Therefore, so far as the IR Act deals with any non-excluded matters, s 26(1) of the FW Act does not apply to exclude that law in its application to a national system employee or a national system employer.

29      The question is, does the IR Act, by a claim referred under s 29(1)(b)(ii) deal with the non-excluded matter of a claim for enforcement of a contract of employment? 

30      The Commission’s jurisdiction is specified in s 23 of the IR Act as:

“(1)  Subject to this Act, the Commission has cognizance of and authority to enquire into and deal with any industrial matter.”

31      “Industrial matter” is defined by s 7 as:

“industrial matter means any matter affecting or relating or pertaining to the work, privileges, rights, or duties of employers or employees in any industry or of any employer or employee therein and, without limiting the generality of that meaning, includes any matter affecting or relating or pertaining to — 

(a) the wages, salaries, allowances, or other remuneration of employees or the prices to be paid in respect of their employment;

(b) the hours of employment, leave of absence, sex, age, qualification, or status of employees and the mode, terms, and conditions of employment including conditions which are to take effect after the termination of employment;

(c) the employment of children or young persons, or of any person or class of persons, in any industry, or the dismissal of or refusal to employ any person or class of persons therein;

(ca) the relationship between employers and employees;

(d) any established custom or usage of any industry, either generally or in the particular locality affected;

(e) the privileges, rights, or duties of any organisation or association or any officer or member thereof in or in respect of any industry;

(f) in respect of apprentices, these additional matters —

(i) their wage rates and, subject to the Vocational Education and Training Act 1996 Part 7 Division 2, other conditions of employment; and

(ii) the wages, allowances and other remuneration to be paid to them, including for time spent in performing their obligations under training contracts registered under the Vocational Education and Training Act 1996 Part 7 Division 2, whether at their employers’ workplaces or not; and

(iii) without limiting subparagraphs (i) and (ii), those other rights, duties and liabilities of them and their employers under such contracts that do not relate to the training and assessment they are to undergo, whether at their employers’ workplaces or not;

(g) any matter relating to the collection of subscriptions to an organisation of employees with the agreement of the employee from whom the subscriptions are collected including —

(i) the restoration of a practice of collecting subscriptions to an organisation of employees where that practice has been stopped by an employer; or

(ii) the implementation of an agreement between an organisation of employees and an employer under which the employer agrees to collect subscriptions to the organisation;

[(h) deleted]

(i) any matter, whether falling within the preceding part of this interpretation or not, where — 

(i) an organisation of employees and an employer agree that it is desirable for the matter to be dealt with as if it were an industrial matter; and

(ii) the Commission is of the opinion that the objects of this Act would be furthered if the matter were dealt with as an industrial matter;

and also includes any matter of an industrial nature the subject of an industrial dispute or the subject of a situation that may give rise to an industrial dispute but does not include — 

(j) compulsion to join an organisation of employees to obtain or hold employment;

(k) preference of employment at the time of, or during, employment by reason of being or not being a member of an organisation of employees;

(l) non‑employment by reason of being or not being a member of an organisation of employees; or

(m) any matter relating to the matters described in paragraph (j), (k) or (l);”

32      Section 26(2) of the IR Act provides that “[i]n granting relief or redress under this Act the Commission is not restricted to the specific claim made or to the subject matter of the claim.” 

33      Section 29(1) of the IR Act does not confer jurisdiction but provides who may refer particular types of industrial matters to the Commission.  Section 29(1)(b) provides that the type of industrial matters an employee may refer to the Commission are claims:

“(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”.

34      The Commission’s power in dealing with these matters, as noted in s 26(2) of the IR Act is not restricted to the specific claim or to the subject matter of the claim.  The power is to enquire into and deal with the industrial matter referred to the Commission. 

35      The nature of the Commission’s jurisdiction under s 23 of the IR Act and its relationship with s 29(1)(b)(ii) has been examined by the Industrial Appeal Court most recently in Matthews v Cool or Cosy Pty Ltd & Anor [2004] WASCA 114; (2004) 84 WAIG 2152.  That decision was considered by the Full Bench in Saldanha v Fujitsu Australia Pty Ltd [2008] WAIRC 01732; (2009) 89 WAIG 76.

36      In Cool or Cosy Steytler J noted that the matter before the Court dealt with an application referred to the Commission of a claim of harsh, oppressive and unfair dismissal, and a claim that the applicant had been denied benefits under his contract of employment. 

37      The grounds of appeal and the issue before the Industrial Appeal Court was that the Full Bench applied the “cap” of six months’ pay set out in s 23A of the IR Act to the award of compensation which was said to be in error because it overlooked that the claim included a denied contractual benefit of reasonable notice referred under s 29(1)(b)(ii) of the IR Act, and that the cap had no application to the denied contractual benefit claim. 

38      It is in that context that the Industrial Appeal Court examined the Commission’s powers and jurisdiction particularly in relation to ss 23(1), s 29(1)(b) and 23A.  It is noted that s 23A has since been amended and is in quite a different form and structure, however it dealt with and still deals with the power of the Commission in dealing with a claim of harsh, oppressive or unfair dismissal, and not in respect of a claim for contractual benefits.  As noted by Steytler J, that power is narrower than that given by s 23, which is to “inquire into and deal with” an industrial matter arising in the case of a claim of denied contractual benefits [17].

39      Steytler J said the question before the Industrial Appeal Court was whether the Commission can, for the purposes of the exercise of power under s 23(1) (to inquire into and deal with a matter referred to it under s 29(1)(b)(ii)) award compensation or damages in lieu of the denied contractual benefit  [22].

40      After considering the characterisation of s 29(1)(b)(ii) benefits and how the Commission might “deal with” them set out in HotCopper Australia Ltd v Saab (2002) 117 IR 256; Perth Finishing College v Watts; Wardell v Donnybrook Stone Co (1992) 72 WAIG 2250, and Slee and Stockton Pty Ltd v Blewitt (1992) 47 IR 104, his Honour said:

“[24] In my respectful opinion, the better analysis of each of those cases should have been that the contractual benefit which was denied by the employer was that which was provided for by the contract of employment itself (respectively the full term of employment provided for by the contract, the right to a defined period of notice and the right to reasonable notice) and that the award of compensation was the means by which the Commission dealt with the industrial matter referred to it under s 29(1)(b)(ii), utilising the broad power given it under s 23(1) of the IR Act read, if necessary, with s 26(2) thereof.” 

41      In dealing with comments made by Kennedy J in Robe River Iron Associates v Association of Drafting, Supervisory and Technical Employees of Western Australia (1987) 68 WAIG 11, Steytler J remarked on the amendment to the IR Act since those comments by Kennedy J, and that the introduction of s 7(1a) of the IR Act on 9 May 1995 seemed to him to:

“evince a legislative intention that compensation may be awarded in lieu of a denied contractual benefit.  Were the position otherwise, the extended definition of ‘industrial matter’ provided for by s 7(1a)(b) would have application only in cases in which the ‘benefit’ was one which was still capable of being provided in the form contracted for, even though the employment relationship had ended.  I very much doubt that could have been the legislature’s intention” [26]. 

42      His Honour went on to say that he favoured Anderson J’s obiter comments in HotCopper that in a claim referred under s 29(1)(b)(ii), the Commission was empowered to make “a monetary order for compensation – that is, a damages award – in an appropriate case, as long as its purpose is to do no more than is necessary to ‘redress the  matter by resolving the conflict in relation to the industrial matter’ – Welsh v Hills – and as long as its effect is so limited” [27].

43      Pullin J in Cool or Cosy also dealt with the question of whether the Commission has power to award damages where the contract could not be performed in specie, for example where notice has not been given and the contract has ended.  He noted, by reference to Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 that:

“If a contract containing a term requiring notice to be given, is terminated by an employer without cause and without notice, and therefore in breach of such a term, then the employee is entitled to an award of damages” [48].

44      In respect of the Commission’s jurisdiction under s 23, he said “… it simply confers jurisdiction on the Commission to enquire into and ‘deal with’ the claims.  In my opinion, this provision confers jurisdiction on the Commission to order damages for the non-allowance of a benefit if the non-allowance amounts to a breach of contract” [49] (emphasis added).

45      At [51] Pullin J rejected arguments which deal with denied contractual benefits claims by reference to the powers under s 23A(1)(a) or (ba) saying:

“Those two authorities did not bear at all on the question about whether the Commission had jurisdiction to ‘deal with’ a claim for a disallowed contractual benefit to notice before dismissal, by awarding damages for breach of the contractual promise to give notice” [51].

Pullin J went on to agree with the “tentative” view expressed by Anderson J in HotCopper saying:

“[54] … it is my opinion that in a case where the employer dismisses an employee without cause, and in breach of a contractual promise to give notice, then the employee may refer a claim to the Commission that he has been denied a contractual benefit, and the Commission may ‘deal with’ the claim by awarding damages.  My decision on this point means that an employee who has a contractual right to more than six months’ notice, and who is dismissed without cause, would be able to bring a claim for damages for a disallowed contractual benefit, and thereby avoid the restriction on the amount of compensation (imposed by s 23A(4) (now s 23A(8)) which may be ordered on a claim for unfair dismissal …  The right to damages for a breach of contract is a common-law right, and the restriction on the right to compensation which has been imposed by s 23A(4), has been imposed by Parliament only in relation to an employee who formulates his or her claim as a claim that he or she has been harshly, oppressively, or unfairly dismissed.” 

46      Heenan J also considered the Commission’s powers in dealing with the two types of claims which may be referred under s 29(1)(b) and distinguished the powers available to the Commission.  In respect of s 29(1)(b)(ii) he said the entitlements “… are contractual and, therefore, common law claims which exist independently of the provisions of the IR Act and which could, if necessary, be pursued in any court of appropriate general civil jurisdiction” [60].

47      Heenan J referred to the Commission’s powers “… to enforce the payment of (such) entitlements in addition to the payment of compensation … when dealing with a claim for harsh, oppressive or unfair dismissal.  That power was expressly confirmed under subs 23A(1)(a) of the Act as it stood at the date material to these proceedings and, as the Act now stands as a result of the combined effects of s 23(1) and s 29(1)(b)(ii).  This is, of course, the conclusion reached also by each of Steytler J and Pullin J in their separate reasons” [64] (emphasis added).

48      Heenan J went on to conclude in respect of this point:

“[73] I agree, with respect, with the conclusions of Steytler J and of Pullin J in this case that in circumstances such as the present the Commission is empowered to make a monetary order, in the nature of damages, to deal with the industrial matter before it, as it is empowered to do under s 23(1) notwithstanding that the relief granted is to award damages for breach of the employment contract arising from the employer’s dismissal without notice or with inadequate notice.  However, I do not wish to be understood as suggesting that this is a special exception or qualification upon limits of the Commission, otherwise, to give effect to common law entitlements on an application by an employee under s 29(1)(b)(ii).” 

49      Heenan J at [78] also dealt with the manner in which the Commission is to deal with claims under s 29(1)(b)(ii) and said:

“[78] Having arrived at a figure for any proved damages for breach of contract suffered by the appellant as a result of his wrongful dismissal it may become necessary to compare that figure with any award of ‘compensation’ which the Commission might contemplate awarding under s 23A in (1)(ba) (now s 23A(6) of the amended Act)” (emphasis added).

50      In Saldanha v Fujitsu Australia Pty Ltd [2008] WAIRC 01732, the Full Bench examined the Commission’s powers and jurisdiction in dealing with an industrial matter referred under s 29(1)(b)(ii).  Having examined the conclusions of the majority in Cool or Cosy referred to above, Ritter A P referred to his own decision in Health Services Union of Western Australia (Union of Workers) v Director General of Health in Right of the Minister for Health as the Metropolitan Health Service, the South West Health Board and the WA Country Health Service (2008) 88 WAIG 543 (HSU).  He said:

“[80] I then said at [173]:

‘On the contrary if the Commission is arbitrating a claim referred by an employee under s 29(1)(b)(ii) of the Act which asserts they have not been given a contractual entitlement, the Commission must decide what the terms of the contract were and whether or not they have been complied with by the employer.  The Commission does not have licence to add to or subtract from the terms of the contract or the facts and order, for example, that a benefit be given to an employee because they think it would be equitable or fair.  The terms of the contract cannot be disregarded as ‘technicalities or legal forms’ or for any other reason supposedly supported by s 26(1)(a) of the Act.’

[81] From this paragraph I would change the word ‘arbitrating’ to ‘deciding’.  This is because the use of the word could be misunderstood as meaning the Commission is engaging in a discretionary arbitral exercise rather than deciding if there has been a denial of a contractual benefit at common law.  That is, as described in more detail below, a judicial function. 

[82] In my opinion these observations accord with the approach of at least a majority of the judges in Cool or Cosy.  It follows that the applicant’s submission, agreed with by the respondent, that she is simply seeking access to the Commission to enforce under the common law an alleged breach of a former contract of employment, should be accepted.” 

51      At [122] Ritter AP went on to say:

“… the determination of a denial of contractual benefits claim by the Commission does involve the enforcement of legal rights and the exercise of judicial power.  Put simply and at risk of repeating myself, a benefit to which someone is entitled under his or her contract of employment is an existing legal right; and the way in which the Commission deals with a claim that it has not been ‘allowed’ is, as made clear in Cool or Cosy, in accordance with the common law.” 

52      Kenner C in Saldanha also examined the decisions in Cool or Cosy, and concluded in that regard:

“[317] On the basis of the views expressed by the members of the Court in Matthews [Cool or Cosy], contractual benefits claims may therefore be regarded as common law based claims for a range of remedies arising from the denial by an employer of a benefit due to an employee or former employee under the contract of service.  Such are able to be recovered before the Commission as part of the Commission’s jurisdiction to enquire into and ‘deal with’ an industrial matter of this particular kind.  Importantly however, although the source of such a claim [under s 29(1)(b)(ii)] is the common law, the capacity to enforce it is a statutory function, pursuant to the powers conferred on the Commission by the Parliament in s 23(1) of the [IR Act].”

53      As an examination of those decisions demonstrates, in the process of considering whether the Commission has power under s 23(1) of the IR Act to order not merely the performance of the contractual benefit but compensation or damages in lieu of the benefit, the Industrial Appeal Court in Cool or Cosy and Full Bench in Saldanha viewed the Commission’s role in dealing with a claim referred by an employee under s 29(1)(b)(ii) as being to enquire into and deal with a claim to enforce the terms of a common law contract of employment, that is, to compel the employer to observe the benefits under the contract. 

54      A claim referred under s 29(1)(b)(i) is not a claim to enforce an order or award of the Commission, which is a matter for the Industrial Magistrate’s Court.  Nor is it a matter which is the subject of enforcement proceedings before the Full Bench.  Merely because the Commission’s power as set out in s 26 of the IR Act is to enquire into and deal with industrial matters does not mean that the Commission is not dealing with a claim for enforcement of a contract of employment.  On the contrary the Industrial Appeal Court and Full Bench are of the view that this is what the Commission is doing.  As noted, in doing so the Commission is exercising judicial power not arbitral power, utilising common law principles.

55      I note the respondent’s argument that the Explanatory Memorandum in respect of the Fair Work Bill refers to the South Australian legislation as providing an example of enforcement.  It needs to be noted that the Western Australian legislation, the structure of the Commission and its powers are quite different from those applying in South Australia.  The IR Act provides the Commission with the capacity to deal with a far broader range of matters than the South Australian Industrial Relations Commission.  Some of the jurisdiction of the South Australian Industrial Relations Court is also dealt with by the Commission pursuant to the powers under the IR Act, for example, the power to interpret awards and enterprise agreements and to decide monetary claims is pursuant to ss 11-15 of the Fair Work Act 1994 (SA).  The Western Australian Industrial Relations Commission has the power to interpret awards by s 46 of the IR Act.  It also has the power to decide questions of law and jurisdiction. 

56      Therefore, while the Explanatory Memorandum suggests that claims for enforcement of contracts of employment are those which s 14 of the Fair Work Act 1994 (SA) exemplify, that is not to exclude the jurisdiction of this Commission by the IR Act which enables enforcement of contracts of employment as part of the wide jurisdiction set out in s 23, and whereby s 29(1)(b)(ii) provides an employee with standing to refer such a claim.  In those circumstances the reference to the South Australian legislation in the Explanatory Memorandum does not mean that the IR Act does not also deal with enforcement as described above.

57      I now turn to the respondent’s argument that the Commission does not have jurisdiction to compel observance of its decisions in relation to an industrial matter and it does not have jurisdiction to compel observance of a contract of employment.  This misunderstands the jurisdiction of the Commission.  As noted in Cool or Cosy and Saldanha, the Commission in dealing with a claim referred under s 29(1)(b)(ii) by an employee is enforcing the terms of a common law contract, it is not enforcing its own order or award.  That does not make the role of the Commission in the enforcement of the common law contract any less of an enforcement.  Furthermore as noted by Ritter A P in his references to comments by Pullin J that the process is that which is applicable to the enforcement of common law contracts, that is, the Commission must decide what the terms of the contract were and whether or not they have been complied with by the employer.  The Commission is then empowered to make, amongst other orders, a monetary order in the nature of damages to deal with the industrial matter before it. 

Conclusion

58      In summary the authorities lead to the following conclusions:

1.  The Commission’s jurisdiction is to deal with the industrial matter which includes the power to compel by order the performance of a benefit under a contract of employment or where the contract does not continue, to make a monetary order in the nature of damages (Cool or Cosy, per Heenan J [73]).

2.  The Commission has power by the combined effects of s 23(1) and s 29(1)(b)(ii) “… to enforce the payment of entitlements” (Cool or Cosy, per Heenan J [64]), and “… is empowered to make a monetary order, in the nature of damages, to deal with the industrial matter before it … for breach of the employment contract” [73].  This is “… to give effect to common law entitlements on application by an employee under s 29(1)(b)(ii)”. 

3. The benefit claimed is contractual and exists independent of the provisions of IR Act (Cool or Cosy per Heenan J [60]). 

4.  It is an enforcement of legal rights involving the exercise of judicial power (Saldanha, per Ritter A P [122]). 

5.  A claim under s 29(1)(b)(ii) would be determined upon common law principles (Saldanha, per Ritter A P [73]), the process being the same as that for enforcement in courts of appropriate jurisdiction – the Commission must decide:

a.  what the terms of the contract were;

b. whether or not they have been complied with,

and in doing so the Commission is exercising a judicial function (Saldanha per Ritter A P [80] – [81]).

59      Taking account of legislation and the authorities, I conclude that the IR Act, in particular s 26 combined with s 29(1)(b)(ii), is a law of the State not excluded by s 26 of the FW Act, in respect of the non-excluded matter of claims for enforcement of contracts of employment.  Accordingly the Commission has jurisdiction to deal with a claim referred by an employee pursuant to s 29(1)(b)(ii) in relation to a national system employee or a national system employer.