Appeal against a decision of the Commission in Matters U 59 of 2015 and B 59 of 2015 given on 10 August 2015

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2016 WAIRC 00073

DELIVERED : WEDNESDAY, 10 FEBRUARY 2016

FILE NO. : FBA 10 OF 2015

Appellant

AND

Paladin Energy Ltd

Respondent

ON APPEAL FROM:

Jurisdiction : Western Australian Industrial Relations Commission

Coram : Acting Senior Commissioner P E Scott

Citation : [2015] WAIRC 00783; (2015) 95 WAIG 1439

File Nos. : U 59 of 2015; B 59 of 2015

Catchwords : Industrial Law (WA) - Appeal against decision of Commission - Claim of contractual benefits - Appellant's salary exceeded prescribed amount in s 29AA(4) of the Industrial Relations Act 1979 (WA) - Commission prohibited from determining appellant's claim - Appeal dismissed

Legislation : Industrial Relations Act 1979 (WA) s 3, s 7(1), s 12(1), s 23, s 23(1), s 29(1)(b)(ii), s 29AA, s 29AA(4), s 29AA(5), s 49, pt VID

Commonwealth Constitution s 51(xx)

Fair Work Act 2009 (Cth) s 14

Workplace Relations Act 1996 (Cth)

Result : Appeal dismissed

Representation:

Appellant : Mr A L Hoffman in person

Respondent : Mr T J S French (of counsel) and with him Mr J X Cockerell (of counsel)

Solicitors:

Respondent : Clyde & Co

Case(s) referred to in reasons:

Aboriginal Legal Service of Western Australia (Inc) v Lawrence [No 2] [2008] WASCA 254; (2008) 89 WAIG 243; (2008) 37 WAR 450; (2008) 252 ALR 136; (2008) 228 FLR 318

Australian Glass Manufacturing Co Pty Ltd v Transport Workers' Union of Australia, Industrial Union of Workers, Western Australian Branch (1992) 72 WAIG 1499

Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149

Matthews v Cool or Cosy Pty Ltd [2004] WASCA 114; (2004) 136 IR 156; (2004) 84 WAIG 2152

Perth Finishing College Pty Ltd v Watts (1989) 69 WAIG 2307

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Quinn v Kalgoorlie Consolidated Gold Mines Pty Ltd [2006] WAIRC 05220; (2006) 86 WAIG 2725

Re Bland Bros and the Council of the Borough of Inglewood (No 2) [1920] VLR 522

Re Harrison; Ex parte Sealanes (1985) Pty Ltd [2005] WASC 158

Robe River Iron Associates v Federated Engine Drivers' and Firemens' Union of Workers of Western Australia (1986) 67 WAIG 315

Saldanha v Fujitsu Australia Pty Ltd [2008] WAIRC 01732; (2008) 89 WAIG 76

Stothers v Toll Energy Logistics Pty Ltd [2013] WAIRC 00725; (2013) 93 WAIG 1320

Triantopoulos v Shell Company of Australia Ltd [2011] WAIRC 00004; (2011) 91 WAIG 67

Case(s) also cited:

Balfour v Travelstrength Ltd (1980) 60 WAIG 1015

Barlett v ANZ Banking Group Ltd [2014] NSWSC 1662

Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27

Harris v Brandrill Ltd (2000) 80 WAIG 2456

Maloney v Hoffman [1980] AR (NSW) 318

Maxwell v Murphy (1957) 96 CLR 261

Parker v Tranfield [2001] WASCA 233

Perrott v XcelleNet Australia Ltd (1998) 84 IR 255

Rogers v J-Corp Pty Ltd [2015] WAIRC 00862

Romero v Farstad Shipping (IP) Pty Ltd [2014] FCAFC 177

Stylianou v Country Realty Pty Ltd [2010] WAIRC 01074; (2010) 91 WAIG 2029

Tranfield v Parker [2001] WAIRC 02456

Reasons for Decision

THE FULL BENCH:

The Appeal

1         This appeal is instituted under s 49 of the Industrial Relations Act 1979 (WA) (the Act) against a decision made by the Commission on 10 August 2015 dismissing U 59 of 2015 and B 59 of 2015:  [2015] WAIRC 00783; (2015) 95 WAIG 1439.  This appeal is only against the decision insofar as it relates to the decision to dismiss B 59 of 2015.

2         Application B 59 of 2015 is a claim for contractual benefits referred to the Commission as an industrial matter by an employee, Andries Lucas Hoffman, under s 29(1)(b)(ii) of the Act.  Mr Hoffman claims that he is owed by Paladin Energy Ltd (the Corporation) remuneration, pursuant to his contract of employment, from the date his employment was terminated on 27 February 2015 until expiration of his fixed term contract of employment which was, but for the termination, to expire on 1 January 2016.

Background

3         Mr Hoffman at all material times resides in South Africa.  At the time of the termination of his employment he was employed as an engineering manager at the Corporation's Kayelekera mine in Malawi.  He was initially employed as the maintenance manager at the mine.  He was subsequently promoted to the position of engineering manager.

4         The Corporation has its administrative headquarters in Western Australia.  It is engaged in the mining and sale of uranium.  It has a number of tenements in Australia, including Western Australia, but has no active mining operations in Australia.  It is, however, engaged in mining in a number of countries internationally.

5         When Mr Hoffman was employed by the Corporation it communicated with Mr Hoffman from Western Australia and signed the initial contract of employment in Western Australia.  Mr Hoffman, however, signed all the contracts of employment in Africa and all of the work he performed was exclusively in Malawi.  At the time of the termination of Mr Hoffman's employment his salary was $195,000 per annum.

6         Following service of U 59 of 2015 and B 59 of 2015 on the Corporation, the Corporation challenged the Commission's jurisdiction to deal with Mr Hoffman's claims.

7         The first issue raised by the Corporation related to both claims.  It argued that Mr Hoffman's employment did not have a real and sufficient connection with the State of Western Australia.  The second issue related solely to the claim for unfair dismissal in U 59 of 2015.  This was whether the Corporation is a trading corporation for the purposes of s 51(xx) of the Commonwealth Constitution and thereby a national system employer for the purposes of s 14 of the Fair Work Act 2009 (Cth).  The third issue raised by the Corporation went to both applications.  The Corporation contended that Mr Hoffman's employment was not subject to an industrial instrument, within the meaning of s 29AA of the Act; and his salary exceeded the amount prescribed for the purposes of s 29AA, which precluded him from referring a claim of unfair dismissal or contractual benefits in the Commission.

8         The three issues challenging the jurisdiction of the Commission to enquire into and deal with Mr Hoffman's claims were heard and determined by the Commission.  On 10 August 2015, the learned Acting Senior Commissioner delivered reasons for decision and made the following findings:

Is there a sufficient connection with the state?

9         The learned Acting Senior Commissioner referred to s 3 of the Act which sets out the circumstances under which the Act applies to and in relation to an industry carried on partly within the state and partly within an area to which an industry applies or partly in an area to which the Act applies.

10      She then found that the evidence before her was insufficient to determine with any certainty the Corporation's status for the purposes of deciding whether there was a real and sufficient connection with the state.  However, it was not necessary for her to reach a conclusion regarding this issue due to her findings in respect of the application of the limits on the Commission's jurisdiction in s 29AA of the Act.

Is the respondent a trading corporation?

11      The learned Acting Senior Commissioner referred to the decision of Aboriginal Legal Service of Western Australia (Inc) v Lawrence [No 2] [2008] WASCA 254; (2008) 89 WAIG 243; (2008) 37 WAR 450; (2008) 252 ALR 136; (2008) 228 FLR 318 in which Steytler P set out the principles for determining whether or not a corporation is a trading corporation and pointed out that the Commission does not have jurisdiction to deal with claims of unfair dismissal in respect of an employee of a constitutional corporation.

12      She found that the Corporation is a trading corporation as there was no contention that it is a public company, limited by shares and its predominant, if not sole, activity is mining and selling uranium.  She also found that it gives all the appearance of undertaking activity with a view to earning revenue and making a profit.  In these circumstances, the learned Acting Senior Commissioner found that the Commission did not have jurisdiction to deal with the claim of unfair dismissal by Mr Hoffman.

13      The learned Acting Senior Commissioner then went on to deal with Mr Hoffman's claim for contractual benefits in B 59 of 2015.

Section 29AA - Certain Claims Not To Be Determined

14      At the time of the termination of Mr Hoffman's employment the prescribed amount was $149,400:  [2014] WAIRC 00615; (2014) 94 WAIG 775.  As it was agreed between the parties that at the time of termination Mr Hoffman's salary was $195,000 per annum, Mr Hoffman's salary clearly exceeded the prescribed amount.

15      Pursuant to s 29AA, the Commission cannot determine claims of contractual benefits where an employee's contract of employment provides for a salary which exceeds the prescribed amount except where an industrial instrument applies to the employment of the employee.

16      The learned Acting Senior Commissioner observed that it is established that the Commission has jurisdiction to deal with a claim of denied contractual benefits by an employee of a constitutional corporation:  Triantopoulos v Shell Company of Australia Ltd [2011] WAIRC 00004; (2011) 91 WAIG 67.

17      Mr Hoffman put forward an argument at first instance that an industrial instrument applied to his employment at the material time.  He argued that the general order on termination, change and redundancy made by the Commission on 1 June 2005 ((2005) 85 WAIG 1681, the General Order) was an industrial instrument which applied to his employment.  In support of his argument he relied upon the decision of the Full Bench in Quinn v Kalgoorlie Consolidated Gold Mines Pty Ltd [2006] WAIRC 05220; (2006) 86 WAIG 2725.

18      This argument was rejected by the learned Acting Senior Commissioner.  She found that where the employer is a constitutional corporation, the General Order no longer applies to that employment.  This is because the General Order became a Notional Agreement Preserving State Award (NAPSA) under the Workplace Relations Act 1996 (Cth) and continued to apply until it was cancelled as a NAPSA by Senior Deputy President Harrison of Fair Work Australia on 29 July 2011:  PR 512464.  As the General Order was cancelled as a NAPSA, for the purposes of the federal jurisdiction, she found it no longer had application to the employment of an employee of a constitutional corporation:  Stothers v Toll Energy Logistics Pty Ltd [2013] WAIRC 00725; (2013) 93 WAIG 1320.

19      Mr Hoffman also put forward an argument that his contract of employment was regulated by an industrial instrument as an industrial instrument is defined under s 29AA(5) of the Act to also include an employer-employee agreement.  The learned Acting Senior Commissioner also rejected this argument.  She found that an examination of the contract between the parties indicated that it is a common law contract of employment, not an employer-employee agreement.  She also found that the common law contract was not registered under pt VID of the Act and that, in any event, even if it was an employer-employee agreement it would not be enforceable under s 29(1)(b)(ii).

20      In these circumstances, she found that an industrial instrument does not apply to Mr Hoffman's employment.

21      For these reasons, the learned Acting Senior Commissioner found that there was no jurisdiction to determine the contractual benefits claim in B 59 of 2015 and that the application should be dismissed.

Grounds of Appeal

22      Mr Hoffman's grounds of appeal are as follows:

1. The Learned Commissioner has found that the Respondent is a Trading Corporation and that the Commission does not have jurisdiction to deal with the claim. The Commission erred in fact and law to note Section 51 (xx) of the Australian Constitution which defines a constitutional corporation among others as a trading and financial corporation formed within the limits of the Commonwealth.

2. The Learned Commissioner examined the contract of employment and found that it is a common law contract of employment. The Commission erred in fact and law to consider the expressed terms and conditions of a common law employment contract.

3. The Learned Commissioner has found accordance [sic] with a decision in Triantopoulos v Shell Company of Australia Ltd [2011] WAIRC 00004; (2011) 91 WAIG 67, that the Commission has jurisdiction to deal with a claim of denied contractual benefits by an employee of a constitutional corporation.  The Learned Commissioner then erred in fact and law to apply the jurisdictional powers conferred upon the Commission to deal with the matter.

4. The Learned Commissioner has erred in fact in respect that some information was based on contradictory evidence presented by the Respondent (Medical Examination/Exit and contract was not a fix [sic] term employment contract).

5. The Learned Commissioner determined that the employment arrangement was to work exclusively in Malawi, the Commission erred in fact and law that the contract with its expressed terms specifically indicates in Clause 3 that 'you may be required to work at such other location of the Company's activities as the Company may determine from time to time on notification to you'.

The appellant's submissions

23      At the hearing of the appeal, Mr Hoffman conceded that the Corporation is a trading corporation.  Consequently, he agrees the Commission does not have jurisdiction to deal with his claim of unfair dismissal by an employee of the Corporation.  For this reason, he does not seek to appeal the decision to dismiss insofar as it relates to U 59 of 2015.  However, he says in accordance with the decision in Triantopoulos the Commission has jurisdiction to deal with his claim of denied contractual benefits.

24      It is clear from Mr Hoffman's submissions that he does not dispute the finding that at the time of termination of his employment his salary exceeded the prescribed amount.  Nor does he challenge the findings made by the learned Acting Senior Commissioner that an industrial instrument did not apply to his employment.  Consequently, in this appeal he does not contend that it should have been found that his contract was either an employer-employee agreement or that the terms of the General Order applied to his employment.

25      Mr Hoffman's argument in essence is that the limitations on the Commission's jurisdiction to determine certain claims brought before it pursuant to s 29AA of the Act do not apply to a claim of denied contractual benefits by an employee of a constitutional corporation.

26      In support of his argument he puts the following points:

(a) The terms of his contract expressly referred to and applied to the laws of Western Australia.

(b) Pursuant to s 23(1) of the Act the Commission 'subject to this Act' has cognizance of and authority to enquire into and deal with any industrial matter.  The words 'subject to this Act' were interpreted by the Full Bench in Perth Finishing College Pty Ltd v Watts (1989) 69 WAIG 2307 to mean that the extent of the authority of the Commission is governed by the whole of the Act.

(c) 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 make a monetary order in the nature of damages:  Matthews v Cool or Cosy Pty Ltd [2004] WASCA 114; (2004) 136 IR 156; (2004) 84 WAIG 2152 [73] (Heenan J).

(d) 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 [64] (Heenan J).

(e) It is an agreed fact that he and the Corporation signed a formal valid contract of employment dated 22 December 2014.  As the learned Acting Senior Commissioner found, on examination of the contract that there was a common law contract of employment not an employer-employee agreement, she should have applied common law principles to his claim.

(f) A contractual benefit exists independent of the provisions of the Act:  Cool or Cosy [60] (Heenan J).

(g) A contractual benefit is an enforcement of legal rights involving the exercise of judicial power:  Saldanha v Fujitsu Australia Pty Ltd [2008] WAIRC 01732; (2008) 89 WAIG 76 [122] (Ritter AP).

(h) A claim under s 29(1)(b)(ii) is to be determined upon common law principles, the process being the same as that for enforcement in courts of appropriate jurisdiction:   Saldanha [73] (Ritter AP).  Therefore, the Commission must decide what the terms of the contract were and whether or not they have been complied with.

27      Mr Hoffman says that when these principles are applied, the combined effects of s 23(1) and s 29(1)(b)(ii) is that these provisions override the restrictions in s 29AA of the Act.  This, he says, arises because the Commission is empowered to make a monetary order in the nature of damages to deal with an industrial matter for a breach of an employment contract.  That is, it has the jurisdiction to give effect to common law entitlements on an application by an employee under s 29(1)(b)(ii) of the Act and that those entitlements arise from the common law independently from the provisions of the Act.

28      Mr Hoffman in his written submissions and other materials provided to the Full Bench referred to a number of provisions of Commonwealth and state legislation which deals with the incorporation of the companies in Australia and legislation that deals with mines, safety and inspection and provisions of the Fair Work Act.  However, this legislation does not confer any jurisdiction on this Commission.  Consequently, those legislative provisions are not relevant to the outcome of this appeal.

29      Mr Hoffman in his written submissions also set out his argument as to why he says his employment was for a fixed term and the basis of his claim for contractual benefits.  However, those submissions go to the merits of his claim and have not been set out in these reasons for decision as those submissions do not deal with the subject matter of this appeal, that is, whether the Commission has jurisdiction to enquire into and deal with Mr Hoffman's claims.

Conclusion

(a) Relevant provisions of the Industrial Relations Act 1979 (WA)

30      By s 23(1) of the Act, the Commission is conferred with the power to hear and determine particular matters.  This provision provides:

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

31      An 'industrial matter' is defined in s 7(1) of the Act to include, among other matters, any matter affecting or relating or pertaining to the wages, salaries, allowances, or other remuneration of employees and conditions of employment.

32      Section 29(1)(b)(ii) of the Act provides standing to an employee to refer a claim of contractual benefits to the Commission.  It states that an industrial matter may be referred to the Commission by an employee if the employee has not been allowed a benefit to which he is entitled under his contract of employment.  Thus, this provision implicitly recognises that a claim of a denied contractual benefit is an 'industrial matter':  Cool or Cosy [14] (Steytler J); Saldanha [88] (Ritter AP).

33      Once a claim has been referred under s 29(1)(b)(ii) the jurisdiction to grant remedies is found in s 23 of the Act:  Cool or Cosy [14] and [49] (Steytler  J).

34      Section 29AA(4) and s 29AA(5) relevantly provide:

(4) The Commission must not determine a claim that an employee has not been allowed by his or her employer a benefit to which the employee is entitled under a contract of employment if —

(a) an industrial instrument does not apply to the employment of the employee; and

(b) the employee's contract of employment provides for a salary exceeding the prescribed amount.

(5) In this section —

industrial instrument means —

(a) an award; or

(b) an order of the Commission under this Act that is not an order prescribed by regulations made by the Governor for the purposes of this section; or

(c) an industrial agreement; or

(d) an employer‑employee agreement;

prescribed amount means —

(a) $90 000 per annum; or

(b) the salary specified, or worked out in a manner specified, in regulations made by the Governor for the purposes of this section.

(b) Principles of interpretation of statutes

35      It is a modern rule of statutory interpretation that an Act of Parliament is to be read as a whole.  The object of the statutory construction is to construe the meaning of words used in a section in the context of the language in the legislation as a whole, to try to discern the intention of the legislature:  Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby and Hayne JJ).  Thus, the expression 'subject to this Act' does not have a lot of work to do:  Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149, 176 (Dawson and Toohey JJ).  If, however, there is conflict between provisions in an Act, the expression shows what provision is to yield:  Re Bland Bros and the Council of the Borough of Inglewood (No 2) [1920] VLR 522, 533.

36      Context must be considered first.  Words of limitation in a provision cannot be ignored.  In Project Blue Sky McHugh, Gummow, Kirby and Hayne JJ said [71]:

[A] court construing a statutory provision must strive to give meaning to every word of the provision (The Commonwealth v Baume (1905) 2 CLR 405 at 414, per Griffith CJ; at 419, per O'Connor J; Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs (1992) 176 CLR 1 at 12-13, per Mason CJ).  In The Commonwealth v Baume ((1905) 2 CLR 405 at 414) Griffith CJ cited R v Berchet ((1688) 1 Show KB 106 [89 ER 480]) to support the proposition that it was 'a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent'.

(c) Jurisdiction of the Commission to hear and determine claims of contractual benefits referred by an employee

37      The Commission is a court of record and has a judicial seal:  s 12(1) of the Act.  It, however, is an inferior court of record.  It has no inherent jurisdiction:  Robe River Iron Associates v Federated Engine Drivers' and Firemens' Union of Workers of Western Australia (1986) 67 WAIG 315; Australian Glass Manufacturing Co Pty Ltd v Transport Workers' Union of Australia, Industrial Union of Workers, Western Australian Branch (1992) 72 WAIG 1499.  Of particular relevance in this matter, it has no jurisdiction conferred by the common law other than that conferred by the provisions of the Act.  Only superior courts of record are conferred with unlimited jurisdiction:  see the discussion in Re Harrison; Ex parte Sealanes (1985) Pty Ltd [2005] WASC 158 [13] (Owen-Conway QC).

38      As the Commission is not a superior court of record with unlimited jurisdiction, its jurisdiction is limited to that expressly provided for in the Act.  In particular, it does not have unlimited jurisdiction to deal with and determine claims for damages arising out of a breach of contract.  Whilst its jurisdiction allows the Commission to provide common law remedies for breach of contract, its jurisdiction to do so is confined by the express provisions of the Act.

39      The jurisdiction to enquire into and deal with an industrial matter is conferred by s 23(1) to hear and determine a claim.  As discussed above, s 29(1)(b)(ii) simply provides standing to an employee to bring a claim:  Cool or Cosy [14] (Steytler  J).  It does not confer jurisdiction.

40      Thus, pursuant to the jurisdiction conferred by s 23(1) of the Act, the Commission is empowered to hear and determine a claim of contractual benefits that arises from an employment contract by application of the principles of common law that apply to the construction and the application of damages to common law contracts.  Acting under the power conferred by s 23(1) and s 29(1)(b)(ii) of the Act, the Commission may only hear and determine an industrial matter referred by an employee that is a claim of a benefit the employee claims to be entitled under his or her contract of employment.  This does not mean that the Commission can enquire into and deal with all industrial matters that are claims for a contractual benefit.  A limit is placed upon the class of employees who can refer such claims.

41      Section 23(1) of the Act cannot be read in isolation, or only together with s 29(1)(b)(ii).  Both of these provisions must be read with the restrictions set out in s 29AA(4) and s 29AA(5) of the Act.  This approach applies the principle that the Act is to be read as a whole.  Section 29AA(4) and s 29AA(5) are very specific provisions that unambiguously operate to prohibit the Commission from determining a claim where the contract of employment of the employee who seeks to refer the claim pursuant to s 29(1)(b)(ii) of the Act provides for a salary that exceeds the prescribed amount and an 'industrial instrument' within the meaning of s 29AA(5) of the Act does not apply to the employment of the employee in question.

42      The limitations set out in s 29AA(4) and s 29AA(5) apply to s 23(1) and s 29(1)(b)(ii).  The general provision conferring jurisdiction in s 23(1) and providing standing to refer a claim in s 29(1)(b)(ii) must be construed to give way to the specific limit on the jurisdiction of the Commission.  In other words, the limitations provided for in s 29AA(4) and s 29AA(5) prevail to read down the general jurisdiction to enquire into an deal with an industrial matter conferred in s 23(1) of the Act when the matter referred is a claim that an employee has not been allowed a benefit to which he or she is entitled to under the contract of employment.

43      Thus, s 29AA(4) clearly provides a limitation on claims referred pursuant to s 29(1)(b)(ii) of the Act that can be determined by the Commission.

44      Because Mr Hoffman's contract of employment provided for a salary in excess of the prescribed amount and an industrial instrument did not apply to his employment, the pre-conditions in s 29AA(4) bar the Commission from enquiring into and dealing with Mr Hoffman's claim.

45      Thus, the learned Acting Senior Commissioner properly found that the Commission was prohibited from determining Mr Hoffman's contractual benefits claim.

46      For these reasons, we are not persuaded that grounds 1, 2 and 3 of the grounds of appeal have been made out.  We are also not persuaded that grounds 4 or 5 have any merit.  Ground 4 does not relate to, or deal with, any finding made by the learned Acting Senior Commissioner.  As to ground 5, as the Corporation in its written submissions points out, the learned Acting Senior Commissioner did not find that Mr Hoffman's work arrangement was to work exclusively in Malawi.  She found that he undertook work involved exclusively in Malawi.  In any event, the question whether the Commission is prohibited from dealing with Mr Hoffman's claim does not turn upon this finding of fact.

47      For these reasons, we are of the opinion that the appeal should be dismissed.