Austeck Pty Ltd v Charalambos Atsalos - [2003] NSWIRComm 290 - NSWIRComm 2003 case summary — Zoe

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Austeck Pty Ltd v Charalambos Atsalos

[2003] NSWIRComm 290

Industrial Relations Commission (NSW)|2003-07-01|Before: Walton J, Boland J

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Court

Industrial Relations Commission (NSW)

Decision date

2003-07-01

Before

Walton J, Boland J

Source

Original judgment source is linked above.

Judgment (69 paragraphs)

[1]

CITATION : Austeck Pty Ltd v Charalambos Atsalos [2003] NSWIRComm 290 APPELLANT Austeck Pty Limited PARTIES : RESPONDENT Charalambos Harry Atsalos FILE NUMBER: IRC 32 of 2003 CORAM: Walton J Vice-President; Boland J; Macdonald C Appeal - Application for leave to appeal and appeal - Unfair dismissal - Finding at first instance that annual remuneration of employee whose conditions of employment were not set by an industrial instrument was less than the prescribed amount - Statutory Interpretation - Section 83(1)(b) of Industrial Relations Act 1996 - meaning of "annual remuneration" - Whether annual remuneration was to be determined according to the actual amount paid to the employee in the 12 months preceding termination of employment or whether it was to be according to what the applicant was entitled to under the employment contract at the time of the termination of employment - History of section 83(1)(b) - Relevance of provisions of Workplace Relations Act 1996 (Cth) and Regulations to interpretation of "annual remuneration" under New South Wales Act - Whether Parliamentary debates provide assistance in interpreting meaning to be assigned to "annual remuneration" - Purposive approach to interpretation - Importance of interpreting particular words in context - Held that annual remuneration for the purpose of s 83(1)(b) was to be determined according to what the applicant was entitled to under the employment contract at the time of the termination of employment - Leave to appeal granted - Appeal upheld - Decision of Commissioner set aside

[2]

[3]

Statutory Interpretation - Appeal - Application for leave to appeal and appeal - Unfair dismissal - Section 83(1)(b) of Industrial Relations Act 1996 - meaning of "annual remuneration" - Whether annual remuneration was to be determined according to the actual amount paid to the employee in the 12 months preceding termination of employment or whether it was to be according to what the applicant was entitled to under the employment contract at the time of the termination of employment - History of section 83(1)(b) - Relevance of provisions of Workplace Relations Act 1996 (Cth) and Regulations to interpretation of "annual remuneration" under New South Wales Act - Whether Parliamentary debates provide assistance in interpreting meaning to be assigned to "annual remuneration" - Purposive approach to interpretation - Importance of interpreting particular words in context - Held that annual remuneration for the purpose of s 83(1)(b) was to be determined according to what the applicant was entitled to under the employment contract at the time of the termination of employment - Leave to appeal granted - Appeal upheld - Decision at first instance set aside Industrial Relations Act 1988 Industrial Relations Act 1996 Industrial Relations Bill 1996 Industrial Relations (General) Regulation 2001 LEGISLATION CITED : Industrial Relations (General) Amendment (Unfair Dismissal) Regulation 1997 Interpretation Act 1987 Workers Compensation Act 1926 Workplace Relations and Other Legislation Amendment Bill 1996 Workplace Relations Regulations 1996 (Cth) Workplace Relations Act 1996 (Cth) Bull v Attorney-General (NSW) (1913) 17 CLR 370 Club Employees (State) Award and Other Awards, Re [2002] NSWIRComm 362 G G Maxwell v Acacia Resources (unreported, Ross VP, Drake DP and Lawson C, 31 October 1997, Print P6396) Kagan and Primus Telecommunications (Aust) Pty Ltd (No 2) [2000] NSWIRComm 185 CASES CITED : Keith Miller & Sons Builders Pty Ltd v Flemming (1999) 91 IR 399 Knowles v Anglican Property Church Trust (No 2) (1999) 95 IR 380 Moxham v Henderson [1981] 2 NSWLR 282 Police Association of New South Wales v Commissioner of Police [2002] NSWIRComm 126 Shead v Summit Western Pty Ltd t/as Blacktown Mitsubishi (1998) 81 IR 347 HEARING DATES: 06/06/2003 DATE OF JUDGMENT: 09/12/2003

[28]

21 The respondent submitted that the interpretation of the Act contended for by the appellant was wrong because: 1. The New South Wales Act and Regulation at no time make reference to s 170CC of the Workplace Relations Act 1996 (Cth). The reference in cl 5 of the New South Wales Regulation is only to "the specified rate referred to in regulation 30BB of the Workplace Relations Regulations ". Regulation 30BB of the federal Regulations provides, so far as it is relevant: "the specified rate is $64,000.00 per year" as indexed. Accordingly, there is no basis for the Commission to take into account the wording of s 170CC of the federal statute. 2. In determining the annual remuneration of an applicant for the purposes of s 83(1)(b) of the Act the amount of remuneration received in the year prior to termination is the most appropriate measure. This is consistent with the approach in s 89(5). 3. Further, this approach allows for a determination of the Commission's jurisdiction based on past ascertainable facts rather than future speculation. In the present case, the appellant employer seeks to have all non-wage aspects of the remuneration (fuel, registration, health insurance, mobile phone, etc) calculated on the applicant's actual benefits received over the past 12 months, however it seeks to have the wage and superannuation component of the remuneration calculated on an annualised rate based on the respondent employee's salary at termination. This approach is internally inconsistent. 4. The interpretation proposed by the appellant would allow for its abuse by unscrupulous employers. For example, if an employer sought to evade an unfair dismissal claim it would only be necessary on the day prior to termination to increase an employee's annual salary from that day to a rate in excess of the then specified rate and thereby avoid the Commission's jurisdiction. This would be so notwithstanding the fact that the employee's actual remuneration over the twelve months prior was less than the specified rate. 5. Adopting the approach propounded by the employer would lead to inconvenience, injustice or absurdity: Shead v Summit Western Pty Ltd (1998) 81 IR 347 at 357.

[31]

24 On 23 May 1996 the Honourable J P Hannaford, Leader of the Opposition in the Legislative Council, proposed an amendment to the Bill in the form of the current s83(1)(b) and s83(2). In introducing the amendment Mr Hannaford said: A matter of agreement between all political organisations is that State and Federal unfair dismissal laws should be consistent. Today the Federal Government introduced legislation relating to unfair dismissal laws on which this amendment is modelled. The Federal legislation provides for regulations to deal with proposed paragraphs (a) to (e), and contains identical wording. Those eligible to go before the commission in respect of unfair dismissals has been increased. The traditional approach was to allow only those covered by awards to have access to the commission. When the coalition was in office I advocated that circumstances should permit others who had been unfairly dismissed to go before the commission rather than be forced before the courts with all of the attendant expense. At that time there was considerable employer opposition to that proposal. That opposition was probably generated from the Victorian experience when unfair dismissal laws got out of control. A review of this issue resulted in a Federal decision, which New South Wales should also make, that people outside the traditional narrow ambit should have access to appear before the commission if they have been subject to unfair dismissal. However, there must be a cut-off point, and it is proposed that it be for those on annual remunerations greater than $62,200. That amount was specified in changes to Federal industrial laws proposed by former Federal Minister Brereton, and it has been retained by the present Federal Government. The New South Wales Government should follow that lead. The amendment proposes that those who receive a salary of more than $62,200 will have to go to the traditional courts to obtain a remedy if their contract of employment is terminated. Those receiving less than $62,200 will be able to go to the Industrial Relations Commission to obtain a remedy to any unfair dismissal.

[50]

42 In considering this question it is important to bear in mind the observation of the Full Bench in Shead from the cases referred to in that the word "remuneration" is not used consistently throughout the Act. We are reminded, in that regard, of the discussion by Wright J, President in Police Association of New South Wales v Commissioner of Police [2002] NSWIRComm 126 at [38] and [39] as follows: 38 The reasonable inference from this situation is that the terms of the regulation as they stood at the relevant time represent a consolidation, at least in a practical sense, of provisions which had been varied or added over many years presumably by "drafters" who gave varying importance to precise drafting. As such, the situation appears to come within the approach described by Priestley JA as "change and accretion" in Murphy v Farmer (1987) 87 FLR 149, an approach which was in substance approved in the subsequent proceedings in the High Court. Priestley JA speaking for the Court of Appeal in Murphy v Farmer said (at 151), as to provisions of the Customs Act 1901 (Cth): Secondly, the history and forebears of ss 229 and 234 show that they have reached their present form by change and accretion without great attention being paid to any idea of making all their parts fit neatly into an obvious scheme requiring exact harmonising of language. ... In referring to the change and accretion in ss 229 and 234 I have in mind that the present form of those sections is the product of a long period of evolution, some of which can be traced through ... The sections I have referred to in the earlier Acts all seem to raise problems of construction similar to that in the present case and changes and additions to the legislation all appear to have been made without particular attention being given to the present point. Further, although there is, in a general way, a fairly regular use of terms in the various sections, there does not seem to have been any attempt at a high degree of consistency in the use of terms such as false, untrue or misleading so far as their objective and subjective senses are concerned. 39 When the matter was dealt with in the High Court, the majority of the Court ( Dean , Dawson and Gaudron JJ) said: Murphy v Farmer (1988) 165 CLR 19 at 27: [A]s Gibbs J commented in Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1 at 10, the presumption that a word is used with a uniform meaning in a statute is not one "of very much weight ... it all depends on the context". In the same case (at 15), Mason J pointed out that the "presumption readily yields to the context". The presumption of a consistent use of the word "false" is, in any event, of little assistance in relation to the construction of a statute such as the Act where, as Priestley JA pointed out in the Court of Appeal, there does not appear to have been any attempt by the legislature to achieve a "high degree of consistency" in the use of terms such as false, untrue and misleading. 43 These considerations also emphasis the need to consider the provisions of s83 or the meaning of particular words in that section in context. We note, in this respect, the observations of a Full Bench of the Australian Industrial Relations Commission in Keith Miller & Sons Builders Pty Ltd v Flemming (1999) 91 IR 399 at 406 - 407 as follows: [30] We accept what has been said in previous Commission decisions regarding the scope of the word "remuneration". But that acceptance does not determine the matter before us. It is not sufficient to consider the meaning of "remuneration" in abstract, it must be considered in the context in which it appears .

[55]

46 A purposive approach may be taken as to the interpretation of s83(1)(b): see s 33 of the Interpretation Act and Re Club Employees (State) Award and Other Awards [2002] NSWIRComm 362. It is appropriate, in that context, to refer to the observations of Wright J, in Police Association v Commissioner of Police (at 45) as to the decision of Hall P (then Chief Industrial Commissioner) as follows: 45 Another useful example of this approach, where careful regard was paid to the importance in interpretation of the context in which the relevant words appear and of having regard to the purpose of the provision, is a decision of the President of the Queensland Industrial Relations Commission, when as Chief Industrial Commissioner, his Honour decided Nunn v Linde Materials Handling Pty Ltd (1999) 160 QGIG 212. Hall P there considered the meaning and application of clause 34(2)(b)(iii) of the Workplace Relations Regulation 1997 (Qld) which provided that the unfair dismissal provisions of the legislation did not apply to an employee "whose annual remuneration immediately before the dismissal [was] more than $64,000". The approach adopted by his Honour, as indicated earlier, usefully exemplified the approach which should be adopted here, and is found in the following extracts from the decision (at 213): But there is no conceptual difficulty in inquiring whether a reasonable person acquainted with all relevant circumstances would, on the day immediately before a dismissal, have said that an employee had an annual remuneration in excess of $64,000. There may be difficulty in assessing whether the employee fell into the category of those whose remuneration exceeded $64,000 per annum. But there is no conceptual difficulty with the proposition and it should, I think, be embraced. ... The process by which the Commonwealth statutory phrase "rate of remuneration" came to be construed as total remuneration received over a twelve-month period expressed as an annual rate is described, and I rather think criticised, in the same decision. [ Bell v Macarthur River Mining Pty Ltd , Australian Industrial Relations Commission, Print Q1629] But that is by the by. The obligation is to construe s 34(2)(b) of the Workplace Relations Regulation 1997. I quite fail to see why one may not look forwards as well as backwards. It seems to me to be perfectly reasonable to say of somebody dismissed that on the previous day he was employed at annual remuneration in excess of $64,000 if he was employed under a contract stipulating an annual rate of $64,000 even though the contract had only run for two months. It seems to me that it would be difficult to say of a person dismissed yesterday and working under a contract stipulating salary of $50,000 per annum that he is employed at an annual remuneration in excess of $64,000 because, up until two weeks earlier, he had been employed under a contract stipulating a salary of $250,000 per annum. One should take a global approach and remember that the task is not to identify with precision an Applicant's annual remuneration but to express a view upon whether an Applicant is to be properly characterised as having an annual income in excess of $64,000 on the day before dismissal.

Austeck Pty Ltd v Charalambos Atsalos

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