WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2013 WAIRC 00725

DELIVERED : Friday, 16 August 2013

FILE NO. : U 32 OF 2013

Applicant

AND

Toll Energy Logistics Pty Ltd

Respondent

CatchWords : Industrial Law (WA) - Unfair dismissal - Jurisdiction - Termination, Change and Redundancy General Order - Non-excluded matter of the Fair Work Act 2009 - Occupational health and safety - Industrial instrument - National system employee - NAPSA

Legislation :   Fair Work Act 2009 (Cth)  s 26, s 26(2)(a), s 27, s 27(1)(d),

    s 27(2)(c)

    Fair Work (Transitional Provisions and Consequential Amendments)                                           Act 2009 (Cth)

    Industrial Relations Act 1979  s 29AA(3), s 29AA(3)(a),

    s 29AA(3)(b)

    Occupational Safety and Health Act 1984(WA)  s 24

    Workplace Relations Act 1996 (Cth)

Result : Application dismissed for want of jurisdiction

Representation:

Applicant : Mr R Lumley of counsel

Respondent : Mr A Cameron as agent

Reasons for Decision

1          The applicant claims that he was harshly, oppressively or unfairly dismissed from his employment with the respondent.  The applicant filed written submissions on 4 April 2013 and 27 June 2013.  The respondent replied by written submissions dated 26 April 2013 and during the course of the hearing on 28 June 2013.

2          The applicant agrees that the respondent is a constitutional corporation but says that the Commission has jurisdiction to hear the matter for two reasons.  Firstly, he says the prohibition on the Commission dealing with a claim of harsh, oppressive or unfair dismissal due to an industrial instrument not applying to his employment, does not apply in this case (s 29AA(3)(a) and(b) of the Industrial Relations Act 1979 (WA) (the IR Act)).  He says this is so because an industrial instrument, namely, the Commission’s General Order on Termination, Change and Redundancy of 1 June 2005 (2005) WAIG 1681 applies.  He says that consequently the matter comes within the Commission’s jurisdiction.

3         Secondly, the applicant says that the reason for dismissal was that he allegedly breached safety procedures by operating machinery that was tagged ‘out of service’.  This is a non-excluded matter pursuant to s 27(1)(d) of the Fair Work Act 2009 (Cth) (the FW Act) and therefore, the Commission’s jurisdiction is not excluded by the FW Act.

4         The respondent says that the Termination, Change and Redundancy General Order no longer applies to the applicant’s employment.  It became a Notional Agreement Preserving State Award (NAPSA) under the Workplace Relations Act 1996 (Cth) (the WR Act).  However, it was cancelled as a NAPSA for the purposes of the federal jurisdiction.  Therefore, it no longer has application to the employment of a national system employee.

5         In respect of the argument that the applicant is entitled to bring the claim to the Commission on the basis that ss 26 and 27 of the FW Act, taken together, do not exclude a claim of unfair dismissal brought under the IR Act where the IR Act deals with rights or remedies incidental to occupational health and safety, the respondent says that it could not be said that the unfair dismissal jurisdiction of the Commission could be enlivened on the basis of it being a jurisdiction in some way incidental to occupational health and safety.

CONSIDERATION AND CONCLUSIONS

Does an industrial instrument apply?

6         Section 29AA(3) provides that the Commission shall not determine an unfair dismissal claim where, firstly, an industrial instrument does not apply to the employment; and secondly, the employee’s salary exceeds the prescribed amount.  There appears to be no dispute between the parties that the latter condition applies.  Given the use of the word ‘and’, it is necessary for the first condition to also apply.  According to Thomas Quinn v Kalgoorlie Consolidated Gold Mines Pty Ltd (2006 WAIRC 05220) the General Order on Termination, Change and Redundancy is an industrial instrument which applied to all employees in Western Australia.

7         The Termination, Change and Redundancy General Order became a NAPSA in respect of national systems employees and continued to apply.  However, for the purposes of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), the General Order on Termination, Change and Redundancy (WA), CCT matter number 2011/1284, was terminated insofar as it operated as a NAPSA by order of Senior Deputy President Harrison on 29 July 2011 (PR512464).

8         Therefore, for the purposes of s 29AA(3), an industrial instrument does not apply to the applicant’s employment with the respondent.  There is no contention that the applicant’s salary exceeded the prescribed amount.  Accordingly, the Commission is prohibited from determining the claim.

Non-excluded matter

9         As to the question of whether the claim is one which deals with a non-excluded matter under s 27 of the FW Act, I note the following.

10      The scheme of the FW Act in this regard is set out in ss 26 and 27.  Section 26 provides that the FW Act applies to the exclusion of all State and Territory industrial laws so far as they would otherwise apply in relation to a national system employer or national system employee (s 26(1)).

11      A State or Territory industrial law is defined as including a general State industrial law (s 26(2)(a)).  The IR Act is a general State industrial law (s 26(3)(c)).

12      Section 27 of the FW Act specifies those laws to which s 26 does not apply.  Section 27 says that s 26 does not apply to a law of a State or Territory so far as the law deals with rights or remedies incidental to any non-excluded matter, in this case, by reference to s 27(2)(c), occupational health and safety.

13      There is scant case law to assist in the determination of this issue.  Creighton and Stewart note in Labour Law (5th ed) at 119:

A legislative note offers as an example a law providing a right of entry to premises for a purpose associated with workers compensation, occupational health and safety or, outworkers.

14      The authors suggest that the list of non-excluded matters appears to have arisen from the subjects Victoria declared to be outside its initial referral of powers in 1996, however, the list has been modified since then.

15      They go on to note the scope of protection given to the States by the list of non-excluded matters remains uncertain (120).  They refer to the decision of the Full Court of the Federal Court in Endeavour Coal Pty Ltd v CFMEU (2007) 165 FCR 1, which found that the equivalent provisions in the WR Act protect State laws that deal directly with the subjects listed as non-excluded, but not laws that merely authorised the court or tribunal to deal with that or other matters.  Creighton and Stewart go on to note the lack of certainty as to what constitutes laws ‘so far’ as they deal with non-excluded matters.

There may also be awkward questions of characterisation in applying s 27(1), which preserves the effect of certain laws ‘so far as’ they deal with certain non-excluded matters.  For example, workers compensation and occupational health and safety statutes typically regulate termination of employment in various situations, notably where there is some element of ‘victimisation’.  The New South Wales Commission has taken the view that such provisions are to be regarded as laws that deal with workers compensation or occupational health and safety, so that they can still apply to national system employers.  But it might equally be said that they are ‘really’ laws on termination and hence caught by the general exclusion in s 26(1).  Similarly, in Re Transport Industry – Mutual Responsibility for Road Safety (State) Award and Contract Determination (No 2) the New South Wales Commission took the view that State regulation of occupational health and safety could extend to any matter, including wage rates, that can be seen to have a bearing on health and safety.  To the extent that this decision was concerned with regulation by award, it is inconsistent with the subsequent ruling in Endeavour Coal.  But it begs the question:  could a State statute on health and safety validly seek to set wage rates or regulate working time in a particular industry or occupation, so as to enhance employee safety?  (citations omitted).

16      The question then arises, is the IR Act a law which deals with rights or remedies incidental to occupational health and safety.

17      The definition of incidental, is significant.  It means:

1. Happening or likely to happen in fortuitous or subordinate conjunction with something else.

2. Incurred casually or in addition to the regular or main amount:  incidental expenses. – Noun.

3. Something incidental, as a circumstance.

…

5. Incidental to, liable to happen in connection with; naturally appertaining to.

(Macquarie Dictionary (3rd ed))

18      According to its long title, the IR Act is ‘[a]n Act to consolidate and amend the law relating to the prevention and resolution of conflict in respect of industrial matters, the mutual rights and duties of employers and employees, the rights and duties of organisations of employers and employees, and for related purposes.’

19      The objects are set out in s 6. Objects of Act.  They are:

6. Objects of Act

The principal objects of this Act are —

(a) to promote goodwill in industry and in enterprises within industry; and

(aa) to provide for rights and obligations in relation to good faith bargaining; and

(ab) to promote the principles of freedom of association and the right to organise; and

(ac) to promote equal remuneration for men and women for work of equal value; and

(ad) to promote collective bargaining and to establish the primacy of collective agreements over individual agreements; and

(ae) to ensure all agreements registered under this Act provide for fair terms and conditions of employment; and

(af) to facilitate the efficient organisation and performance of work according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprises; and

(ag) to encourage employers, employees and organisations to reach agreements appropriate to the needs of enterprises within industry and the employees in those enterprises; and

(b) to encourage, and provide means for, conciliation with a view to amicable agreement, thereby preventing and settling industrial disputes; and

(c) to provide means for preventing and settling industrial disputes not resolved by amicable agreement, including threatened, impending and probable industrial disputes, with the maximum of expedition and the minimum of legal form and technicality; and

(ca) to provide a system of fair wages and conditions of employment; and

(d) to provide for the observance and enforcement of agreements and awards made for the prevention or settlement of industrial disputes; and

(e) to encourage the formation of representative organisations of employers and employees and their registration under this Act and to discourage, so far as practicable, overlapping of eligibility for membership of such organisations; and

(f) to encourage the democratic control of organisations so registered and the full participation by members of such an organisation in the affairs of the organisation; and

(g) to encourage persons, organisations and authorities involved in, or performing functions with respect to, the conduct of industrial relations under the laws of the State to communicate, consult and co‑operate with persons, organisations and authorities involved in, or performing functions with respect to, the conduct or regulation of industrial relations under the laws of the Commonwealth.

20      ‘Industrial matter’ is defined in s 7. Terms used 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; or

(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; or

(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).

21      An examination of the remainder of the IR Act does not disclose that it is a law which deals with rights or remedies incidental to occupational health and safety matters.  In particular, rights or remedies regarding unfair dismissal are not, according to the definition of incidental, happening or likely to happen in fortuitous or subordinate conjunction with occupational health and safety.  They are not naturally appertaining to occupational health and safety.

22      Therefore, merely because the reason for dismissal may be due to some alleged breach of occupational health and safety requirements, does not provide the necessary ‘subordinate conjunction.’  There are many circumstances which might raise a similar issue.

23      As Creighton and Stewart suggest, and by reference to the CFMEU (NSW) v Brolrik Pty Ltd (2007) 167 IR 214, laws which deal with occupational health and safety, such as the Occupational Safety and Health Act 1984 (WA) (OS and H Act) are such laws, not the law dealing with industrial matters.  The OS and H Act has as its long title:

An Act to promote and improve standards for occupational safety and health, to establish the Commission for Occupational Safety and Health, to provide for a tribunal for the determination of certain matters and claims, to facilitate the coordination of the administration of the laws relating to occupational safety and health and for incidental and other purposes.

24      The OS and H Act deals with resolution of issues at the workplace relating to occupational safety and health (s 24), breaches duties by employers and employees (ss 19 to 20A inclusive), and other such matters pertaining to occupational safety and health.

25      For those reasons, I include that the IR Act is not a law so far as it deals with rights and remedies incidental to occupation health and safety.  Therefore, ss 26 and 27 of the FW Act do not act to maintain the Commission’s jurisdiction to deal with this claim by a national system employee, even though the reason for dismissal may be an alleged breach of occupational health and safety procedures.

26      The application will be dismissed for want of jurisdiction.