REFERRAL OF EMPLOYMENT DISPUTE

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2018 WAIRC 00699

DELIVERED : WEDNESday, 22 AUGUST 2018

FILE NO. : APPL 27 OF 2018

Applicant

AND

Ms Michelle Hoad

MANAGING DIRECTOR

North Metropolitan TAFE

Respondent

Catchwords : Industrial law (WA) – Dispute whether clause is a referral agreement – Found that clause is a referral agreement but that agreement had expired prior to referral.

Legislation : Employment Dispute Resolution Act 2008 s 3, s 12

Industrial Relations Act 1979 s 41

Result : Application dismissed

Representation:

Counsel:

Applicant : Mr S Maré of counsel

Respondent : Mr J Carroll of counsel

Solicitors:

Applicant : Workwise Advisory

Respondent : State Solicitor’s Office

Case(s) referred to in reasons:

Kos v Department of Transport 94 WAIG 1623

Reasons for Decision

1         The applicant says that clause 23 of the Western Australian TAFE Lecturer’s General Agreement 2014 is a “referral agreement” under the Employment Dispute Resolution Act 2008 (WA).

2         The respondent disputes this relying upon the decision of Kos v Department of Transport 94 WAIG 1623 and submissions to the effect that the decision is correct.

3         Section 3(1) Employment Dispute Resolution Act 2008 defines “referral agreement” to have “the meaning given in section 12(1)”.

4         Section 12(1) Employment Dispute Resolution Act 2008 provides as follows:

Two or more parties may enter into an agreement in writing (a referral agreement) that a particular employment dispute, or employment disputes of a particular class, between the parties may be resolved by the IR Commission.

5         Pursuant to clause 23, two parties, the State School Teachers’ Union of W.A. (Inc) and Director General of the Department of Training and Workforce Development (the latter for all intents and purposes being the respondent in this matter) agreed that employment disputes of a particular class, that being grievances of employees about disciplinary penalties imposed on them short of termination, may be referred to the Western Australian Industrial Relations Commission for determination.

6         Clause 23 is, in my view, plainly a “referral agreement” under section 12(1) Employment Dispute Resolution Act 2008.

7         The respondent says that an industrial agreement is materially different from a referral agreement, something they say was correctly determined by the Western Australian Industrial Relations Commission in Kos v Department of Transport 94 WAIG 1623.

8         While this may be true I do not, with respect, see any reason to conduct a comparison between “industrial agreements” and “referral agreements”.  I do not think there is anything material about a “referral agreement” being in an “industrial agreement”, so long as it is actually a referral agreement.

9         In Kos v Department of Transport 94 WAIG 1623 the Western Australian Industrial Relations Commission said “a referral agreement has particular characteristics which are not found in a registered industrial agreement”.  That, while true, is, in my respectful view, not material.

10      The Western Australian Industrial Relations Commission said that a referral agreement has a “sole purpose”.  I do not see why that purpose may not be achieved by inclusion of a referral agreement in an industrial agreement.

11      The Western Australian Industrial Relations Commission considered it material that referral agreements come into force by “agreement of the parties” and “not by registration” and that a referral agreement does not need to be “registered by the Commission”.

12      I do not see anything material in an industrial agreement only operating when registered.  What is material is whether the industrial agreement evidences an agreement of the sort referred to in section 12 Employment Dispute Resolution Act 2008.  Here such an agreement is evident from a plain reading of clause 23 of the Western Australian TAFE Lecturer’s General Agreement 2014.

13      I do not consider, for the reasons given above, that the features of an industrial agreement referred to in the first three sentences of [8] of Kos v Department of Transport 94 WAIG 1623 are material.  What is material is whether the industrial agreement contains an agreement which corresponds to section 12 Employment Dispute Resolution Act 2008.

14      Assuming that it is a basic principle of construction that all provisions of a document ought be given some work to do, I wonder what work clause 23 would do if it is not a referral agreement.

15      It has become clear in related proceedings that the clause does not and cannot act to expand the Western Australian Industrial Relations Commission’s jurisdiction beyond that statutorily provided to it.

16      It seems to me that if clause 23 is a referral agreement this gives the clause some work to do.  This is, of course, not the reason for my ultimate decision, given that I consider clause 23 is a referral agreement, but it is a source of comfort to me that this result gives clause 23 some work to do when nothing is put forward as to the work it might do absent this conclusion.

17      In the last sentence of [8] in Kos v Department of Transport 94 WAIG 1623 the Western Australian Industrial Relations Commission noted “there can be unilateral withdrawal [from an industrial agreement] by giving the prescribed notice, in contrast to withdrawal from an industrial agreement.”

18      The materiality of the comment is not immediately apparent to me but it did cause me to consider section 12(6) Employment Dispute Resolution Act 2008 and its effect, if any, on this matter.  I sought comment from the parties about the issue.

19      Section 12(6) of the Employment Dispute Resolution Act 2008 provides as follows:

(6) A referral agreement —

 (a) comes into force —

 (i) if a commencement date is specified in the agreement — on that date; or

 (ii) otherwise — on the date on which it is made;

  and

 (b) remains in force until —

 (i) if an expiry date is specified in the agreement but all the parties agree to withdraw from the agreement prior to that date — the date on which the parties agree to withdraw; or

 (ii) if an expiry date is specified in the agreement and subparagraph (i) does not apply — that expiry date; or

 (iii) otherwise — the third anniversary of the date on which the agreement came into force.

20      It is clear from section 12(6)(b) Employment Dispute Resolution Act 2008 that referral agreements do not remain in force forever. 

21      Section 12(6)(b)(i) of the Employment Dispute Resolution Act 2008 has no application to this matter.

22      The question is whether an expiry date is specified in the referral agreement or not.

23      Clause 7.1 of the Western Australian TAFE Lecturer’s General Agreement 2014 says as follows:

This agreement shall operate on and from the date of registration and will remain in force until the 15 December 2017.  Notwithstanding the expiry of this Agreement, its terms and conditions will continue in force until it is replaced by a new agreement.

24      The question then is whether an expiry date is “specified in the agreement” by clause 7.1 of the Western Australian TAFE Lecturer’s General Agreement 2014 and, if so, whether that date is “15 December 2017” or the date upon which the Western Australian TAFE Lecturer’s General Agreement 2014 is replaced by a new agreement.

25      Of course, if clause 7.1 does not provide an expiry date for the referral agreement, then section 12(6)(b)(iii) Employment Dispute Resolution Act 2008 will operate to the effect that the referral agreement expired on 7 May 2018 (that is three years after the agreement was made) and, accordingly, was not in force at the time the referral in this matter was made.

26      The language of section 12(6)(b)(ii) Employment Dispute Resolution Act 2008 could not be clearer.  A relevant expiry date is one specified “in” the referral agreement.  The applicant’s argument, which I have accepted as correct, is that clause 23 of the Western Australian TAFE Lecturer’s General Agreement 2014 is a referral agreement.  No expiry date is specified in that agreement.  “In” must mean “inclusion within a particular space or limit” or “on the inside, within” and there is simply no expiry date in the referral agreement.

27      I cannot be assisted by principles of construction that would have me read the whole of the industrial agreement and interpret a clause of that agreement in light of other provisions within it.  Clause 23 comprises a “stand alone” referral agreement.

28      It may seem an odd result that, insofar as clause 23 is a referral agreement, the clause ceases to operate despite the provisions of clause 7.1 and, indeed, despite section 41(6) of the Industrial Relations Act 1979.  This might be pointed to as exposing a folly in treating a clause in an industrial agreement as a referral agreement. 

29      However, I think this is overcome by the principle of statutory construction that a specific statutory provision prevails over an inconsistent general provision. 

30      Section 41(6) Industrial Relations Act 1979 is more general, in the current context, than the specific provision of section 12(6)(b)(iii) Employment Dispute Resolution Act 2008.

31      That is, a provision of an industrial agreement will continue to operate pursuant to section 41(6) Industrial Relations Act 1979 except for a provision that is a referral agreement which does not specify an expiry date.  Such a provision will not continue to operate beyond the third anniversary of the date on which the agreement came into force.

32      The referral in this matter was made at a time after the referral agreement had ceased to be in force.  The referral was not made before the third anniversary of the date on which the referral agreement was made, that third anniversary date being the date upon which the referral agreement ceased to be in force.

33      As a result of the operation of section 12(6)(b)(iii) Employment Dispute Resolution Act 2008 I do not have jurisdiction to accept and determine the referral and the application that I do so must be dismissed.