s.170CE application for relief in respect of termination of employment

[1] In proceedings before the Commission on 19 February 1999 the Commission as presently constituted decided the Commission did not have the jurisdiction to entertain the applications for relief in respect of termination of employment under s.170CE of the Workplace Relations Act 1996 (the Act) by A. Cicchini and C. Christodulakis. This decision was reached because their employer, the Government of the Republic of France, is immune from such proceedings in the Commission. At the time I reserved my reasons for decision. I now publish those reasons.

[2] Mr O'Grady, appearing for the employer, initially raised a number of objections to the Commission entertaining the two applications. Following submissions from Ms Rizza, appearing for the applicants, and evidence from the applicants, a number of these objections were not pressed. Other objections relating to the need for an extension of time for lodgement and an issue of the fixed term nature of the contract were not dealt with because of the decision taken in respect of the immunity point.

[3] Mr O'Grady's argument in respect of immunity can be briefly stated. Because of the specific wording of the Foreign States Immunities Act 1985 that Act has no application to proceedings of the Commission, and accordingly the international common law does have application. Under that international common law a foreign state is immune from action in respect of employment contracts it enters into under the domestic law of Australia unless it expressly waives such immunity. There is no such waiver in this case, thus it remains immune.

[4] Mr O'Grady's argument does however deserve to be detailed. It is as follows:

[5] The Foreign States Immunities Act 1985 provides in s.12(1), subject to some exceptions which are not relevant here, as follows:

A foreign State, as employer, is not immune in a proceeding in so far as the proceeding concerns the employment of a person under a contract of employment that was made in Australia or was to be performed wholly or partly in Australia.

[6] "Proceeding" is defined in s.4 of the same Act as:

"proceeding" means a proceeding in a court but does not include a prosecution for an offence or an appeal or other proceeding in the nature of an appeal in relation to such a prosecution;

[7] The same section includes the following definition of a "court":

"court" includes a tribunal or other body (by whatever name called) that has functions, or exercises powers, that are judicial functions or powers or are of a kind similar to judicial functions or powers;

[8] Thus the absence of immunity only applies in respect of proceedings concerning the employment of a person under a contract of employment made in Australia or performed wholly or partly in Australia if those proceedings are undertaken in a court, as defined. There is no argument here that the proceedings are in respect of a contract of employment made in Australia or performed wholly or partly in Australia.

[9] In Ranger[1] the High Court distinguished between judicial power and the award making power of the Commission:

It is clear that reinstatement may be claimed as a legal right or as a remedy for breach of a legal obligation. Section 5 of the Act is illustrative of situations in which reinstatement is a curial remedy for the breach of a legal obligation. A dispute as to the existence or enforcement of a legal right to reinstatement or as to the breach of a legal obligation properly remedied by an order for reinstatement is a dispute which necessarily involves the exercise of judicial power. In conformity with s. 71 of the Constitution (which reposes the judicial power of the Commonwealth in Ch. III, Courts), the Commission is not endowed with judicial power, and hence has no jurisdiction to entertain disputes as to the existence or enforcement of legal rights or obligations...

However the creation of legal rights and obligations is a function which may be performed in the exercise of arbitral power. This is so even if the function is performed in settlement of a dispute relating to past transactions, events and conduct...

Where, as here, the relevant award imposes no obligation upon an employer to reinstate a dismissed employee or class of employees and the Act confers no general entitlement to reinstatement, either as a right or as an available legal remedy, then, unless the provisions of s.5 of the Act are invoked, the dispute is properly to be viewed as a claim for the creation of an obligation on the part of the employer to reinstate the dismissed employee or employees. The creation of new rights and obligations is a function which is properly performed in the exercise of arbitral power.[2]

[10] Mr O'Grady submitted that Parliament invoked the same distinction in vesting the Commission with jurisdiction in respect of s.170CE applications, in that such applications are finally disposed of by the Commission with the making of an award. If it were otherwise, he submitted the jurisdiction would be the exercise of judicial powers or powers similar thereto, and as made clear in Ranger that would breach a constitutional prohibition.

[11] Mr O'Grady referred also to the decision of the High Court in Dingjan[3]. In the decision of her Honour Justice Gaudron her Honour stated:

A power to adjudicate "a dispute about rights and obligations arising solely from the operation of the law on past events or conduct" is one that is essentially and exclusively judicial. On the other hand, a power to bring a new set of rights and obligations into existence is generally non-judicial, although it may take its character from the tribunal involved. Thus a power to create new rights and obligations, if it is conferred on a court and "is to be exercised according to legal principle or by reference to an objective standard or test prescribed by the legislature and not by reference to [unspecified] policy considerations", will be characterised as judicial power involving the determination of rights and obligations for which the law provides. ...

However, if the power to bring a new set of rights and obligations into existence is vested in a tribunal which is not a court and policy considerations have a part to play in the tribunal's determination, the power is not judicial. And that is so even if it is necessary for the tribunal to decide disputed facts or to form an opinion as to existing rights and obligations as a step in arriving at its ultimate determination.[4]

On that point her Honour was joined by the majority of the Court.

[12] Reference was made to the decision of Justice Moore in Robinson v Kuwait Liaison Office[5] a matter before the Industrial Relations Court of Australia. Mr O'Grady distinguished that case in which his Honour held that there was a valid application, because the Court was exercising judicial power.

[13] Thus Mr O'Grady submitted, the Commission was not a court as defined in the Foreign States Immunities Act 1985 and therefore that Act did not apply so as to remove any immunity in proceedings before the Commission.

[14] The immunity arises at international common law, which Mr O'Grady saw as "neatly encapsulated" in two decisions, Sengupta v Republic of India[6] and Governor of Pitcairn and Associated Islands v Sutton[7]. In the first decision the English Court of Appeal dealt with the issue of whether Mr Sengupta's claim for unfair dismissal was within the jurisdiction of the relevant tribunal. At the relevant time the equivalent of the Foreign States Immunities Act 1985 had no application to the matter and therefore the question related to the application of sovereign immunity. The Court held "at common law a State is immune from claims for unfair dismissal brought by employees at a diplomatic mission who are engaged in carrying on the work of that mission"[8].

[15] In Sutton a similar conclusion was arrived at, although technically it would appear that the employment was not that of a diplomatic nature. The following passage from the decision of Robinson J describes the situation and its consequences succinctly:

that Mrs Sutton's employment in the Pitcairn office necessarily involved her in the public acts of the British Crown; and to allow consideration of a claim of unjustifiable dismissal in the Courts of New Zealand would intrude on the exercise of the sovereign functions exercised through the Governor of Pitcairn[9].

[16] Ms Rizza, appearing for the applicants, sought to distinguish the High Court decisions. In particular she argued that the Commission was a body whose functions or powers "are of a kind similar to judicial functions or powers". In that context she referred to the quotation from her Honour Justice Gaudron's decision in Dingjan quoted above (paragraph 11) by Mr O'Grady. She argued that consistent with the judicial power described, the creation of rights involved in an unfair dismissal matter has to be exercised `according to legal principle or by reference to an objective standard or test'. Those requirements are set out in s.170CG(3) and limit the Commission's discretion.

[17] I am unable to accept that distinction. In its decision in Windsor Smith a Full Bench of the Commission, in discussing the matter for consideration said:

Section 170CG(3)(a) adopts some of the wording of s. 170DE(1) of the IR Act but the context is entirely different. Section 17DE(1) of the IR Act contained a prohibition on termination of employment except for a valid reason or valid reasons. Section 170CG(3) does not. Whether there was a valid reason for the termination is only one of four separately specified matters which the Commission must now have regard to. The Commission must also have regard to any other matter it considers relevant. ... Under the Workplace Relations Act 1996 the principal question is whether the termination was harsh, unjust or unreasonable. In considering that question the Commission is to ensure that a "fair go all round" is accorded to both the employer and the employee concerned.[10]

[18] Thus the Commission's discretion is not limited in any real way by the matters set out in s. 170CG(3) given the importance of s.170CG(3)(e) in ensuring that the `fair go all round' is accorded.

[19] Even if wrong on that point, I must conclude that the Commission's powers are not judicial on the authority of the specific decisions of the High Court referred to by Mr O'Grady.

[20] Thus, generally for the reasons advanced by Mr O'Grady and set out above I am satisfied that there is no jurisdiction available for the Commission to deal with the two claims. Accordingly the applications are dismissed.

11 Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia [1987] HCA 63; (1987) 163 CLR 656.

11 [1987] HCA 63; (1987) 163 CLR 656 at 663 and 664.

11 Re Dingjan; Ex parte Wagner [1995] HCA 16; (1994-1995) 183 CLR 323

11 [1995] HCA 16; (1994-1995) 183 CLR 323 at 360-361 (references omitted)

11 (1997) 145 ALR 68

11 [1982] AC 888

11 (1995) 1 NZLR 426

11 (1995) 1 NZLR 426 at 437.

11 M.J. Liu and others and Windsor Smith. Print Q3462 p.8

Termination of employment - unfair dismissal -- jurisdiction - Commission found as employer was a sovereign State which had immunity from prosecution under the Foreign States Immunities Act 1985 - found Commission exercise of jurisdiction in unfair dismissal matters is not an exercise of power which "are of a kind similar to judicial function" - application dismissed.

Printed by authority of the Commonwealth Government Printer

[1] Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia [1987] HCA 63; (1987) 163 CLR 656.

[2] [1987] HCA 63; (1987) 163 CLR 656 at 663 and 664.

[3] Re Dingjan; Ex parte Wagner [1995] HCA 16; (1994-1995) 183 CLR 323

[4] [1995] HCA 16; (1994-1995) 183 CLR 323 at 360-361 (references omitted)

[5] (1997) 145 ALR 68

[6] [1982] AC 888

[7] (1995) 1 NZLR 426

[9] (1995) 1 NZLR 426 at 437.

[10] M.J. Liu and others and Windsor Smith. Print Q3462 p.8

Printed by authority of the Commonwealth Government Printer