WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES THOMAS QUINN

APPELLANT

-and-

Kalgoorlie Consolidated Gold Mines Pty Ltd

RESPONDENT

CORAM FULL BENCH

 The Honourable M T Ritter, Acting President

 Commissioner P E Scott

 Commissioner S Wood

HEARD Thursday, 27 July 2006

DELIVERED MONDAY, 7 AUGUST 2006

FILE NO. FBA 16 OF 2006

CITATION NO. 2006 WAIRC 05220

CatchWords Industrial Law (WA) – Appeal against decision of Commission – Application for reinstatement or compensation – Alleged harsh, oppressive or unfair dismissal – Application dismissed as beyond jurisdiction – Issues relating to jurisdiction of Commission under s29AA of the Industrial Relations Act 1979 (WA) (as amended) – Meaning of “industrial instrument” – General Order on Termination, Change and Redundancy – Meaning of “apply to the employment” in s29AA – General Order an “industrial instrument” which did “apply to the employment” of appellant – Appeal allowed – Industrial Relations Act 1979 (WA) (as amended), s23(1), s23A, s29(1)(b)(i), s29AA, s29AA(3)(a), (b), s29AA(5)(b), s49, s50(3) – Industrial Relations (General) Regulations 1997, r5, r6 – Interpretation Act 1984 (WA) (as amended), s19

Decision Appeal allowed, order at first instance set aside, and matter remitted to Commission for further hearing and determination

Appearances

Appellant  Mr G McCorry, as agent

Respondent Mr A Cameron, as agent

Reasons for Decision

THE ACTING PRESIDENT:

The Appeal

1          This is an appeal instituted under s49 of the Industrial Relations Act 1979 (WA) (as amended) (the Act).  The appeal is against an order made by the Commission on 1 May 2006.  The order made by the Commission was to dismiss the application which had been made to it.  The application to the Commission, filed on 7 December 2005, sought an order of reinstatement or compensation in respect of the alleged harsh, oppressive or unfair dismissal of the appellant.

2          The application was made pursuant to s29(1)(b)(i) of the Act and sought a remedy under s23A of the Act.  The application was made in respect of the appellant’s dismissal from the employment of the respondent which occurred on 11 November 2005.

The Jurisdictional Issue

3          The basis upon which the application was dismissed was that the Commission did not have jurisdiction to determine the application.  This was because of the contents of s29AA(3) of the Act.  The jurisdictional issue had been raised by the respondent in their notice of answer filed on 15 December 2005.  It is appropriate to set out the terms of s29AA of the Act in full:-

“29AA. Certain claims not to be determined

(1) Subject to subsection (2), the Commission must not determine a claim of harsh, oppressive or unfair dismissal from employment if the dismissed employee has lodged an application with the Australian Commission for relief in respect of the termination of that employment.

(2) Despite subsection (1) the Commission may determine the claim if the application to the Australian Commission is —

(a) withdrawn; or

(b) rejected or dismissed on the ground that it is not within the jurisdiction of the Australian Commission to determine the application.

(3) The Commission must not determine a claim of harsh, oppressive or unfair dismissal from 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.

(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;

(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;

(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.”

4          The decision of the Commission to dismiss the application was made on the basis of written submissions made to it; most of the salient facts not being in dispute.

5          It was common ground between the parties at first instance that the appellant was employed by the respondent as a shift supervisor with an annual salary of $127,280.00.  It was also common ground that this amount of salary exceeded the prescribed amount pursuant to s29AA(3) of the Act.

6          The regulations prescribed pursuant to s29AA(3) of the Act are contained in the Industrial Relations (General) Regulation 1997 (the General Regulations).  Regulations 5 and 6 of the General Regulations provide for a prescribed amount of $90,000.00 which is indexed in accordance with a formula set out in regulation 6.  The figure applicable from 1 July 2005 was calculated by the Registrar to be $104,800.00.  (As from 1 July 2006 the amount has been calculated to be $108,500.00).

7          The contention of the appellant at first instance was that although his salary exceeded the prescribed amount, the Commission was not prevented from determining his claim because an “industrial instrument” applied to his employment.  Therefore, both of the preconditions necessary for the Commission to be prevented from determining the claim, pursuant to s29AA(3) of the Act, were not present.  The Commission accordingly had jurisdiction to determine the claim.

8          The respondent did not dispute that both of the preconditions set out in s29AA(3)(a) and (b) of the Act had to apply to an employee before the Commission was prevented from determining their claim for harsh, oppressive or unfair dismissal.  The respondent argued however that, in terms of s29AA(3)(a), an industrial instrument did not apply to the employment of the appellant.

9          As can be seen from s29AA(5) of the Act quoted above, the expression “industrial instrument” has been defined.  Its meaning includes “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”.  The industrial instrument which the appellant argued applied to his employment was the General Order on Termination, Change and Redundancy issued by the Commission in Court Session on 1 June 2005, to take effect on 1 August 2005 (the General Order; see (2005) 85 WAIG 1681).  To determine the appeal it is necessary to consider the terms of the General Order, which are set out in the Schedule attached to the General Order.

The General Order

10       Clause 1.1 of the Schedule provides that the General Order applies to each employee as defined in s7(1) of the Act, throughout the State of Western Australia.

11       Clause 1.2 of the Schedule provides that the General Order does not apply to any employee who holds an office for which remuneration payable is determined or recommended pursuant to the Salaries and Allowances Act 1975 (WA).

12       Clause 1.3 of the Schedule provides that:-

“Any provisions relating to termination of employment, introduction of changes in production, program, organisation, structure or technology that are likely to have significant effects on employees or redundancy applying to an employee which are inconsistent with and provide more favourable conditions to an employee than those set out in this General Order whether by way of award, order or agreement of this Commission or by legislation or otherwise will apply to those employees to the extent of any such inconsistency.”

13       It was not in dispute that the appellant was an employee for the purposes of clause 1.1 of the Schedule and was not excluded from the operation of the General Order pursuant to clause 1.2 of the Schedule.  It was also not argued by the respondent that clause 1.3 of the Schedule applied to the employment of the appellant to the extent that the General Order did not apply to the appellant’s employment by the respondent.  Accordingly, it was common ground that the appellant’s employment with the respondent was bound by the terms of the General Order in the sense that it operated upon the terms and conditions of the appellant’s employment.

14       The obligations created by the General Order are set out in clauses 2, 3 and 4 of the Schedule.  Clause 2 is headed “Termination of Employment”, clause 3 “Introduction of Change”, and clause 4 “Redundancy”.

15       Clause 2.1 of the Schedule provides that an “employer shall, in the event of termination of employment, provide upon request to the employee who has been terminated a written statement specifying the period of employment and the classification or type of work performed by the employee”.

16       Clause 2.2 of the Schedule provides in clause (a) that during “the period of notice of termination given by the employer an employee shall be allowed up to one day’s time off without loss of pay during each week of notice for the purpose of seeking other employment.  The time off shall be taken at times that are convenient to the employee after consultation with the employer”.

17       Clause 2.2(b) of the Schedule provides that “if the employee has been allowed paid leave for more than one day during the notice period for the purpose of seeking other employment, the employee shall, at the request of the employer, be required to produce proof of attendance at an interview or he or she will not receive payment for the time absent”.

18       Clause 3.1(a) of the Schedule provides that where “an employer decides to introduce changes in production, program, organisation, structure or technology, that are likely to have significant effects on employees, the employer shall notify the employees who may be affected by the proposed changes and, if an employee nominates a union to represent him or her, the union nominated by the employee”.

19       Clause 3.1(b) of the Schedule provides for an inclusive definition of “significant effects”.

20       Clause 3.2(a) of the Schedule provides for a duty of an employer to consult over change.  The duty is upon the employer to consult with employees affected and, if an employee nominates a union to represent them, the union nominated by the employee.  The consultation is to be “about the introduction of the changes, the effects the changes are likely to have on employees (including the number and categories of employees likely to be dismissed, and the time when, or the period over which, the employer intends to carry out the dismissals), and the ways to avoid or minimise the effects of the changes (e.g. by finding alternate employment)”.

21       Clause 3.2(b) of the Schedule provides that the consultation shall commence as soon as practicable after making the decision referred to in the “Employer’s Duty to Notify” clause.

22       Clause 3.2(c) of the Schedule provides an obligation upon the employer to provide certain information in writing for the purposes of the consultation.

23       Clause 4.1 of the Schedule provides for definitions relevant to clause 4.

24       Clause 4.2(a) of the Schedule provides that where “an employer decides that the employer no longer wishes the job the employee has been doing to be done by anyone and that decision may lead to termination of employment, the employer shall consult the employee directly affected and if an employee nominates a union to represent him or her, the union nominated by the employee”.

25       Clauses 4.2(b) and (c) of the Schedule provide for the timing and the contents of the consultation including the provision of some information in writing.

26       Clause 4.3 of the Schedule generally provides that an employee who is transferred to lower paid duties by reason of redundancy is entitled to the same period of notice of transfer as they would have been entitled to if their employment had been terminated.  Alternatively, at the employer’s option they may make a payment in lieu thereof of an amount equal to the difference between the former amounts the employer would have been liable to pay and the new lower amount the employer is liable to pay the employee for the number of weeks of notice still owing.

27       Clause 4.4 of the Schedule provides that in “addition to the period of notice prescribed for ordinary termination, an employee whose employment is terminated by reason of redundancy must be paid, subject to further order of the Commission” the amount of severance pay in respect of a continuous period of service as set out in a table contained in the Schedule.

28       Clause 4.5 of the Schedule provides that an employee whose employment is terminated by reason of redundancy may terminate their employment during the period of notice and, if so, will be entitled to the same benefits and payments under clause 4 as if they had remained with the employer until the expiry of the notice.

29       Clause 4.6(a) of the Schedule generally provides that an employer in a redundancy case “may make application to the Commission to have the severance payment prescribed varied if the employer obtains acceptable alternative employment for an employee”.

30       Clause 4.6(b) of the Schedule provides that subclause 4.6(a) “does not apply in circumstances involving transmission of business as set out in clause 4.7”.

31       Clause 4.7 of the Schedule provides that the provisions of clause 4 are not applicable where a business is transmitted from one employer to another in certain circumstances.

32       Clause 4.7(b) of the Schedule provides that the effects of clause 4.7(a)(ii) may be varied by the Commission if satisfied it would operate unfairly in a particular case.

33       Clause 4.8 of the Schedule provides that where “a decision has been made to terminate employees in the circumstances outlined in the “Consultation Before Terminations” clause, the employer shall notify Centrelink as soon as possible giving all relevant information about the proposed terminations, including a written statement of the reasons for the terminations, the number and categories of the employees likely to be affected, the number of employees normally employed and the period over which the terminations are intended to be carried out”.

34       Clause 4.9 of the Schedule provides that certain employees are exempted from the provisions of clause 4.  This includes where employment is terminated as a consequence of serious misconduct justifying dismissal without notice; except for clause 4.2, to employees with less than one year’s service; except for clause 4.2, to probationary employees; to apprentices, trainees and casual employees; and except for clause 4.2, to employees engaged for a specific period of time or for a specified task or tasks.

35       Clause 4.10 of the Schedule provides that subject to an order of the Commission, in a particular redundancy case, clause 4.4 does not apply to employers who employ less than 15 employees.

36       Clause 4.11 of the Schedule provides that an “employer or a group of employers, in a particular redundancy case, may make application to the Commission to have the severance payment prescribed varied on the basis of the employer’s incapacity to pay”.

37       Clause 4.11 is the final subclause of the General Order.

38       Accordingly, it may be seen that with respect to those employers to whom the General Order applies, it provides for, in the circumstances described, obligations to provide a statement of employment, certain paid leave, duties to notify and consult, severance pay and to provide a notice to Centrelink.

39       It was common ground between the parties that in this case no circumstances had arisen which would enliven the respondent’s obligation to act in accordance with the General Order.  That is, for example, the termination of the appellant’s employment had not been on the basis of redundancy thereby giving rise to the obligation to pay severance pay pursuant to clause 4.4 of the Schedule to the General Order.

40       It was also common ground that the General Order has not been “prescribed by regulations made by the Governor” for the purposes of s29AA(5) of the Act, so that it did not on this basis fit within the definition of an “industrial instrument”.

The Reasons of the Commission

41       The Commission published reasons for decision on 1 May 2006.  These reasons set out the nature of the issue before the Commission and summarised the written submissions made by both the appellant and the respondent.  It is not necessary for present purposes to detail these submissions.

42       The Commission then considered and determined the jurisdictional issue under the heading “Findings and Conclusions”.  In this section of the reasons the Commission referred to s23(1) and quoted s29(1)(b)(i) and s29AA of the Act.

43       In paragraph [23] the Commission said it was not in dispute and the Commission therefore found that at the time the appellant was terminated his salary was in excess of the prescribed amount and his employment was not covered by the terms of a State award, industrial agreement or employer-employee agreement.  In the same paragraph the Commission found that the terms of the General Order “covered” the appellant at the time he ceased employment with the respondent.  The Commission then said the question to be determined was whether “the General Order is an industrial instrument for the purposes of s29AA(3) and (5)(b) under the heading of industrial instrument, of the Act”.

44       In paragraph [25] of the Commission’s reasons the finding was made that the Commission was precluded from dealing further with the application.  The reasons for reaching this conclusion were expressed in the following way in paragraphs [26]-[28] of the reasons of the Commission:-

“26              Section 29AA(3) of the Act provides that the Commission is unable to deal with an employee’s claim for unfair termination if that employee is earning in excess of the prescribed amount at termination and an industrial instrument does not apply to the employment of the employee.  I find that on a plain reading of s29AA of the Act the reference in s29AA(3)(a) to an industrial instrument which applies to the employment of the employee within the context of identifying which claims are not to be determined by the Commission means an instrument detailing an employee’s terms and conditions of employment and I find that the provisions of s29AA(5)(b) should be read within this context.

27              It is my view that the General Order is not an industrial instrument applying to the ‘employment of the employee’ as contemplated in s29AA(3)(a) of the Act as it is not an instrument specifying an employee’s employment conditions.  The General Order, which took effect on 1 August 2005 applies to the applicant and concerns issues relevant to an employee’s termination, the introduction of change at a workplace and an employee’s entitlement when an employee is made redundant.  As the General Order does not detail an employee’s terms and conditions of employment as an industrial instrument normally would I find that the General Order is not an industrial instrument as contemplated and defined in s29AA(5)(b) of the Act.

28              I find that it is appropriate to interpret the provisions of s29AA(3) and (5)(b) of the Act in this way as to do otherwise and read s29AA in the manner argued by the applicant would effectively make s29AA(3) of the Act redundant, given that any order issuing under s50(3) of the Act can apply to all employees as defined in s7(1) of the Act whether or not they are employed under and subject to an award or industrial agreement.  Furthermore, I take into account that when s29AA was inserted into the Act on 1 August 2002 the Commission had the power under s50(3) of the Act to make general orders applying to all employees as defined in s7(1) of the Act.”

45       In paragraph [29] of its reasons the Commission referred to s19 of the Interpretation Act 1984 (WA) (as amended) and the circumstances in which extrinsic aids may be looked at to assist in the interpretation of an Act.  Section 19 of the Interpretation Act 1984 (WA) (as amended) was then quoted.

46       In paragraph [31] of its reasons the Commission quoted from the second reading speech of the then Honourable Minister for Consumer and Employment Protection, Mr Kobelke, reported in Hansard on 19 February 2002 at page 7520 as follows:-

“Upon proclamation of the Act, employees whose basic wage is in excess of $90,000 per annum will be excluded from lodging a claim for denied contractual benefits or unfair dismissal unless their employment is covered by an award, enterprise agreement, enterprise order or employee-employer agreement.  The prescribed amount of $90,000 will be indexed annually by regulation.”

47       The Commission said that this clarification by the Minister confirmed that “an industrial instrument as defined in s29AA(5)(b) does not contemplate the General Order as an industrial instrument for the purposes of s29AA(3) of the Act”.

48       The Commission then concluded that as no industrial instrument applied to the appellant’s employment and as the appellant’s salary was in excess of the prescribed amount for the purposes of s29AA of the Act, the Commission did not have jurisdiction to deal with the application.  The Commission said an order of dismissal would issue.

The Grounds of Appeal

49       The grounds of appeal are in the following terms:-

“The learned Commissioner erred in fact and in law in finding that the Commission General Order on Termination Change and Redundancy was not an industrial instrument for the purpose of section 29AA of the Act, in that ―

1) the learned Commissioner failed to find that the General Order is-

a) an order of the Commission;

b) not an order prescribed by regulations made by the Governor for the purposes of section 29AA of the Act; and

c) thus by definition an industrial instrument.

2) the learned Commissioner found that an industrial instrument is an instrument detailing an employee’s terms and conditions of employment, whereas on a proper construction of the Act, the learned Commissioner should have found that an industrial instrument is an instrument made by the Commission and having the force of law, that is binding on an employer or class of employers and an employee or class of employees or an organisation of employers or employees or relates to any industrial matter or is for the purpose of preventing or resolving industrial disputes; disagreements or questions relating thereto and the General Order is such an instrument;

3) the learned Commission had resort to extrinsic aids to construction of the provisions which is only permissible where the provision of an Act is obscure or ambiguous and the provisions of section 29AA are neither obscure nor ambiguous.”

50       Despite the terms of the grounds, the central issue argued on the appeal was whether the Commission had erred in failing to determine that the General Order did “apply to the employment” of the appellant, in the terms of s29AA(3)(a) of the Act.

51       Both parties to the appeal made written submissions which were adopted during the hearing of the appeal and elaborated upon by oral submissions.  These submissions as well as the written submissions made at first instance have all been carefully considered.

The Process of Construction of the Act

52       In determining the present appeal, the Full Bench must engage in the process of construing the phrase “apply to the employment of the employee” in s29AA(3) of the Act.

53       The process involved in by courts when engaged in the construction of legislation was considered in my reasons in Thiess Pty Ltd and Others v AFMEPKU and Others (2006) WAIRC 04715, 6 July 2006, at paragraphs [54]-[57] in the following terms (Smith and Harrison CC agreeing):-

“54 In Wilson v Anderson (2002) 213 CLR 401, Gleeson CJ said at [8]:-

“In the construction or interpretation of a statute, the object of a court is to ascertain, and give effect to, the will of parliament.  Courts commonly refer to the “intention of the legislature”.  This has been described as a “very slippery phrase”, (Salomon v Salomon & Co Ltd [1897] AC 22 at 38, per Lord Watson) but it reflects the constitutional relationship between the legislature and the judiciary… Parliament manifests its intention by the use of language, and it is by determining the meaning of that language, in accordance with principles of construction established by the common law and statute, that courts give effect to the legislative will.”

55 In Attorney General (Qld) v Australian Industrial Relations Commission (2002) 213 CLR 485 at [113], Kirby J reiterated that it is necessary when engaging in the exercise of statutory construction to focus attention “upon the crucial language of the relevant provisions before other aids to construction are considered”.

56 In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ at [69] quoted from the reasons of Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297 at 320, the effect that the meaning of a statutory provision must be determined “by reference to the language of the instrument viewed as a whole”.

57 Although the focus must be on the meaning of the language used in the statute, s18 of the Interpretation Act, requires that in “the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object”.  As stated however by the Full Federal Court in R v L (1994) 122 ALR 464 at 468/9, the command contained in provisions like s18 of the Interpretation Act “can have meaning only where two constructions are otherwise open”, and the section “is not a warrant for redrafting legislation nearer to an assumed desire of the legislature”.”

Analysis

54       In my opinion, the General Order is clearly an industrial instrument as defined in s29AA(5)(b) of the Act.  It is plainly an order of the Commission made under the Act.  Also it is an order of the Commission made under the Act, that has not been prescribed by regulations made by the Governor, for the purpose of declaring that the General Order not be “an industrial instrument” for the purposes of s29AA of the Act.

55       The more pertinent question is as to whether the General Order did “apply to the employment” of the appellant with the respondent.  As can be seen from the reasons of the Commission quoted above, the Commission decided that the General Order was not an “industrial instrument” because it did not detail the terms and conditions of employment of the appellant.  Additionally, the Commission said that if it accepted the appellant’s argument it would effectively make s29AA(3) of the Act redundant, given that any order issued under s50(3) of the Act can apply to all employees whether or not they are employed under and subject to some other award or industrial instrument.

56       In my opinion, with respect, the Commission erred when stating that to come within the description in s29AA(3)(a) of the Act an industrial instrument must detail an employee’s terms and conditions of employment.  In my opinion, this is a description of a notion which is narrower than and different from that conveyed by the statutory language used, which is “apply to the employment”.

57       In my opinion, an industrial instrument will apply to the employment of an employee if it affects the terms and conditions of employment of the employee.  An instrument would fit this description if it set out or impacted upon the terms and conditions of employment, including by the creation of particular obligations upon an employer or employee.  Such obligations could apply generally or in particular circumstances such as those described in the Schedule to the General Order.  In my opinion, the General Order did apply to the employment of the appellant as it affected the terms and conditions of employment of the appellant.  The respondent could not, because of the terms of the General Order, lawfully act in relation to the appellant, with respect to his employment, in a way which was contrary to the terms of the General Order.  It therefore applied to the employment.

58       This construction fits within one of the dictionary definitions of “apply” as meaning “to have a bearing or reference; be pertinent”.  (See The Macquarie Dictionary, Second Edition).

59       Also, with respect, I do not agree with the Commission at first instance that s29AA(3) of the Act would be redundant if the General Order was accepted as being an industrial instrument that applied to the employment of the appellant.  This is because the analysis by the Commission at first instance does not refer to the prospect of regulatory prescription of an industrial instrument as set out in s29AA(5)(b) of the Act.

60       I agree with the tenor of the reasons of the Commission at first instance that the purpose of s29AA(3) of the Act was to generally provide a limit upon those claims for unfair dismissal the Commission could determine.  This limit was generally but not exclusively dependent upon the amount of salary earned by an employee.  The other necessary condition was that an “industrial instrument” did not apply to their employment.  The definition of “industrial instrument” was provided in s29AA(5) of the Act.  This included the broad category of an order of the Commission, as set out in s29AA(5)(b) of the Act.  By allowing for the possibility of an order being prescribed to not be an industrial instrument for the purposes of s29AA, it may be taken that the legislature understood that, absent such prescription, a General Order of the Commission could apply to the employment of an employee whose salary exceeded the prescribed amount and which therefore had the potential to undermine the policy of the limit upon claims being determined by the Commission enacted by s29AA(3) of the Act.  The real “problem” in this instance, in my opinion, arises because for whatever reason, the General Order has not been prescribed by regulations made under s29AA(5)(b) of the Act.

61       It is in error, in my opinion, to consider the statutory scheme of placing a limit upon the claims which may be determined by the Commission, without reference to the administrative mechanism contained in s29AA(5)(b) of the Act.  The fact that the administrative mechanism exists under s29AA(5)(b) enhances, in my opinion, the argument that “apply to the employment of the employee” should be construed in the manner I have set out above.  This is because, the breadth of this description gave rise to the need for the possibility of prescription under s29AA(5)(b), to preserve the integrity of the policy of only certain claims being determined by the Commission.

62       Additionally, with respect, I do not think that the Commission’s reliance upon the quoted part of the second reading speech of the Minister is sound.  Firstly, this is because the quoted part of the second reading speech does not attempt to be exhaustive in describing the scheme of limiting claims which was enacted by s29AA of the Act.  Secondly, the description of the relevant industrial instruments referred to by the Minister as being an “award, enterprise agreement, enterprise order or employee-employer agreement” is not coincident with the definition of “industrial instrument” contained in s29AA(5).  Thirdly, the words of the second reading speech cannot be substituted for the meaning of the words of, in this instance, s29AA(3) of the Act.  (See, for example, Attorney General (Qld) and Another v Australian Industrial Relations Commission and Others (2002) 213 CLR 485 per Kirby J at [113]).

63       It is open, of course, for the General Order to now be prescribed for the purposes of s29AA(5) of the Act.  If this occurs then it may well be that the Commission is prevented from determining the present claim under s29AA(3).  This issue need not however be further considered in this appeal.

64       The respondent argued during the hearing that the expression “apply to the employment of the employee” should be construed to mean the work of the employee, as a subset of the whole employment relationship between the employer and the employee.  Therefore it was argued that the General Order did not apply to the employment of the appellant as it did not affect his work with the respondent.  In my opinion, this argument cannot be accepted.  The statutory words used are “the employment of”, not some other, different, descriptor, such as “work” or similar.

65       It was also argued by the respondent that the General Order did not have any “practical application” to the employment of the appellant and therefore did not fit the relevant statutory description.  Again, in my opinion, this is not determinative of whether the General Order did “apply to the employment”.  What is determinative is whether the General Order affected the terms and conditions of employment in the way discussed earlier.  This does not, as argued by the respondent, confuse the words “apply” and “bind”.  What it does, in my opinion, is simply provide a content to the expression “apply to the employment of” which is correct in all of the circumstances.

66       The respondent also argued that the subject matter of the General Order, being termination, introduction of change and redundancy, is by its very nature incapable of having any application “to the employment of an employee per se”.  I do not accept this contention.  The subject matter of the General Order is, as discussed earlier, to provide for certain obligations which affect the terms and conditions of employment of the appellant.  In this sense therefore they apply to the employment of the appellant as an employee.  The mere fact that the termination and redundancy aspects generally have application when there is a cessation of employment does not mean that they do not apply to it.  The General Order affects the way in which termination and in particular termination of employment based on redundancy can be lawfully implemented.  In this way they “apply to” employment.

67       The respondent also referred to the web site of the Commission with respect to the making of unfair dismissal claims and in particular a section on “Who can make a claim”.  This part of the web site refers to the salary cap for lodging claims of unfair dismissal contained in regulations 5 and 6 of the General Regulations.  It was argued that because the web site did not refer to the General Order then this should be taken as a decision by the Commission that the General Order did not have the effect argued by the appellant.  In my opinion, there is no basis for the respondent to make this assertion.  In any event the Full Bench is hardly bound by the contents of the Commission’s web site.

68       In their written submissions to the Commission at first instance the respondent argued at [22] that “no less an authority than Parliament itself has prescribed how this issue must be resolved.  The Commission is without jurisdiction and it must so find.  To do otherwise would be tantamount to open defiance of the Parliament”.  This was because, it was argued, the Parliament had clearly indicated its intention to prevent employees earning greater than a prescribed salary to have a claim for unfair dismissal determined by the Commission.  This argument has been answered above.  It should be repeated however that to decide the Commission may presently determine the appellant’s claim for unfair dismissal does not defy the will of Parliament.  The conclusions reached above follow from what is, in my opinion, a proper understanding of the intention of Parliament as indicated by the words used in the Act.  Further, the Parliamentary intention includes, as set out earlier, the prospect that orders may by regulation be excluded from being an “industrial instrument” for the purposes of s29AA of the Act.  This administrative action has not occurred with respect to the General Order.  If the legislative purpose is unfulfilled in the absence of the relevant regulatory prescription, then this is curable by the General Order being prescribed for the purposes of s29AA.  The fact that this has not occurred does not mean that the Full Bench, in construing the legislation in the way I have suggested above, has defied the will of Parliament.

69       It is of course appropriate to consider the consequences of a particular construction of legislation for the purpose of determining its proper meaning.  (See, for example, Statutory Interpretation in Australia, 6th Edition, D C Pearce and R S Geddes, at [2.34] ff).  In my opinion, the construction of the legislation which I have set out above has the effect that a larger number of former employees than might otherwise be the case may have claims for unfair dismissal determined by the Commission.  This effect however is capable of cure as contemplated by the legislation, by the prescribing of the General Order as referred to earlier.  I do not think it proper to construe s29AA(3) of the Act in some strained or artificial way to try and avoid the “problem” which the present appeal presents.

Conclusion

70       In my opinion, the appeal must be allowed, the order of the Commission at first instance set aside, and the matter remitted to the Commission for further hearing and determination.  A minute of proposed orders should issue in these terms.

COMMISSIONER P E SCOTT:

71      I have had the benefit of reading the reasons for decision of His Honour, the Acting President.  I agree and have nothing to add.

COMMISSIONER S WOOD:

72      I have had the benefit of reading the reasons for decision of His Honour, the Acting President.  I agree with those reasons and have nothing to add.