McGrath v Managing Director, TAFE.

1Mr Paul Michael McGrath (the applicant) filed a claim for unfair dismissal under s. 84 of the Industrial Relations Act, 1996 on 4 November 2011 against his employer named as Sydney Institute TAFE. The applicant's termination date was 17 October 2011. By his application the applicant sought reinstatement and monetary compensation from date of dismissal at usual salary rate. 2The respondent filed their reply on 25 November 2011 stating the name of the employer was the Managing Director, TAFE NSW as Division Head of the TAFE Commission Division of the Government Service. 3Two conciliations were held on 29 November 2011 and 7 December 2011 before Bishop C, which were unsuccessful. A date for the filing and serving of evidentiary material was provided to the parties. 4On 20 February 2012 Mr Miles of the Department of Education and Communities Legal Services Unit filed a Notice of Motion stating under the sub heading of Grounds and Reasons the following: 1.The New South Wales Industrial Commission ceased to have jurisdiction to hear the matter on and from 1 December 2011 by reason of Clause 16 of Schedule 4 of the Technical and Further Education Commission Act. 2.At the time of the applicant's dismissal he was an employee of the State of New South Wales in the TAFE Commission Division of the Government Service. His employment was governed by the technical and Further Education Commission Act and the Public Sector Employment and Management Act 2002. On and from 1 December 2011, the TAFE Commission became a national system employer within the meaning of s.14 of the Fair Work Act (Cth). 3.The amendments made to the Technical and Further Education Commission Act and effective from 1 December 2011 made no provision for any transitional arrangements in respect of applications filed with the Commission prior to 1 December 2011. 5As a consequence of this Notice of Motion , hearing dates that had been allocated for 19 - 21 March 2012 were vacated by Staff J in chambers. 6A mention of the Notice of Motion was held on 24 February 2012 with dates for the filing and serving of evidence/ outline of submissions provided to the parties. 7A hearing for the issues raised by the Notice of Motion was held on 13 March 2012, with the Decision being reserved.

8The respondent stated that at the point of termination, the filing of his claim for unfair dismissal and the first conciliation the applicant was covered by the Industrial Relations Act, 1996. 9On 1 December 2011 amendments to the TAFE Commission Act came into affect. The respondent stated that there were no provisions within Schedule 4 to the TAFE Act which permitted or provided for the Industrial Relations Commission of New South Wales to retain and exercise jurisdiction in respect of any matters otherwise excluded by section 26 of the Fair Work Act, 2009 and which were part heard or otherwise unresolved as at 1 December 2011. 10The application before the Commission was clearly a matter concerning "rights and remedies connected with the termination of employment", and as such was a matter where this Commission no longer had jurisdiction to hear and consider the merits of a claim and or to make orders as to any remedy. 11 In submissions the respondent noted that within the Work Health and Safety Act 2011 clause 14 allows for the continuation of certain processes and proceedings and identifies what is to happen to those matters, normal transitional arrangements. In this TAFE legislation those persons who were formerly employed pursuant to the TAFE Commission Act and the Public Sector Employment and Management Act were no longer to be regarded as employees of the New South Wales Public Service. They were to be regarded as a national system of employees and the employer was to be a national system employer. With respect to the applicant he is caught in limbo. 12The jurisdiction for this Commission to act was taken away by clause 16 of schedule 4 to the TAFE Commission Act from 1 December 2011. As from 1 December 2011 the jurisdiction is defunct. The clear intention of the legislation was to remove the jurisdiction of this Commission from 1 December 2011 in regard to persons who were or are employed by TAFE Commission of New South Wales. The new employer for such employees as the applicant was, is the TAFE Commission of New South Wales. 13The respondent also stated that the applicant's former employer is no longer in existence by reason of the legislative amendment. Therefore any order reinstating or re employing the applicant could not be realistically made and if made could not be enforced. 14The Managing Director of the TAFE Commission, a division of the Technical and Further Education division of the Public Sector Management Act, no longer exists. 15As a consequence of no transitional provisions applying to the applicant then the cases quoted by the applicant in this matter were not relevant.

16It was the applicant's submission that as at 1 December 2011, the primary effect of the amending act was that employees who were, as at 1 December 2011, employed by the State of New South Wales in the TAFE Commission division of the Government Service, would now be employed directly by the TAFE Commission. Thus in a legal sense there was a change in the entity of their employer. 17The applicant stated that from the literal terms of clause 16 of schedule 4 to the TAFE Commission Act that the limitation on the Commission's jurisdiction to 'determine an industrial matter' imposed by the amendments only applies to a 'member of staff' who was a member of staff 'on and from the commencement date', namely 1 December 2011. Therefore the applicant who was not a member of staff of the TAFE Commission on or immediately before 1 December 2011, within the meaning of the term in section 3 of the TAFE Commission Act, clause 16 of schedule 4 had no application to him or his application. The applicant was not an 'existing staff member'. 18 Due to the lack of application of clause 16 of schedule 4 it was not necessary for the legislature to enact such transitional provisions, as in the applicant's view it did not remove or affect the jurisdiction of the Commission to deal with such applications. At the point of termination, the applicant was not a national system employee and the TAFE was not a national employer therefore section 26 of the Fair Work Act had no application to the jurisdiction of the Commission in relation to the applicant's unfair dismissal claim. It was submitted that it was not the legislatures intention to remove the Commission's jurisdiction in relation to persons to whom clauses 16(1)(a) or (b) did not apply. If it had so intended, it would have expressly stated. 19For clause 16 of schedule 4 to operate to remove the Commission's jurisdiction in relation to the applicant's claim, the section would have to be read as having retrospective effect. This was not expressed and therefore the applicant's accrued rights arise from the filing of his Application for Relief prior to 1 December 2011. This was a substantive right and can only be extinguished by an express intention on the part of the legislature. 20 The case of Commissioner of Police v Hollingsworth (no.2) (1998) 84 IR 192, in which it was submitted that the transitional provisions did not have the effect of depriving Ms Hollingsworth of a right of appeal. The Court held that the legislature did not intend to abolish by the Industrial Relations Act, 1996 existing rights of appeal in applications for relief under the Industrial Relations Act, 1991, the hearing of which had begun under the former 1991 Act, but had not been determined when the 1996 Act came into force. Similarly with the present matter and that clause 16 could not be properly found as revealing that the legislative intent that the provisions will have a retrospective effect on applications pending in the Commission to which clause 16 might otherwise apply post 1 December 2011. 21It was submitted that having the power to deal with this matter under section 84, then the Commission would also retain power under to reinstate under section 89 of the Industrial Relations Act, including to order that the TAFE Commission reinstate the applicant.

22The terms of Part 5 to schedule 4 of the TAFE Commission Act are: Part 5 - Provisions consequent on enactment of Technical and Further Education Commission Amendment (Staff Employment) Act 2011 13 Definitions In this Part: "commencement date" means the date on which section 15 was inserted by the Technical and Further Education Commission Amendment (Staff Employment) Act 2011 . "existing staff member" means: (a) a person who, immediately before the commencement date, was employed under Chapter 1A of the Public Sector Employment and Management Act 2002 in the TAFE Commission Division of the Government Service, or (b) a person who: (i) immediately before the commencement date, was employed in the Department of Education and Communities, and (ii) in the opinion of the Director-General of the Department given in writing, was so employed primarily to assist the TAFE Commission in the exercise of its functions, and (iii) was not so employed under Part 3.1 of the Public Sector Employment and Management Act 2002 . "transferred staff member" means an existing staff member who is transferred to the employment of the TAFE Commission by operation of clause 14. "transitional period", in relation to a transferred staff member, means whichever is the shorter of the following periods: (a) the period of 12 months beginning on the commencement date, (b) the period beginning on the commencement date and ending immediately before the date on which an enterprise agreement (within the meaning of the Fair Work Act 2009 of the Commonwealth) first takes effect in relation to the staff member. 14 Transfer of existing staff members to employ of TAFE Commission On the commencement date, each existing staff member is transferred to the employment of the TAFE Commission. 15 Employment arrangements for transferred staff members (1) The TAFE Commission is to take such action as is available to it as an employer of a transferred staff member to ensure that the provisions of this clause are implemented. (2) During the transitional period, the employment of a transferred staff member with the TAFE Commission is to be on the same terms and conditions relating to the following matters as applied immediately before the commencement date to the person's employment as an existing staff member: (a) hours of work, (b) salary, (c) shift, overtime and penalty rates, (d) allowances, (e) leave (other than extended leave or long service leave). (3) A transferred staff member: (a) retains any rights to annual leave, extended or long service leave, sick leave, and other forms of leave, accrued or accruing in his or her employment as an existing staff member, and (b) is not entitled to receive any payment or other benefit merely because the member ceases to be in the employment from which the member was transferred, and (c) is not entitled to claim, both under this Act or any other Act, dual benefits of the same kind for the same period of service. (4) Without limiting subclause (3), a transferred staff member is not, despite any other provision of this or any other Act, entitled to elect, because of that transfer, to be paid the money value of any extended or annual leave that the member accrued in the employment from which the member was transferred. 16 Jurisdiction of Industrial Relations Commission (1) On and from the commencement date, the Industrial Relations Commission has no jurisdiction to determine an industrial matter (within the meaning of the Industrial Relations Act 1996 ) relating to a member of staff if: (a) the Fair Work Act 2009 of the Commonwealth has excluded the application of State industrial laws (within the meaning of section 26 of that Act) in relation to the matter, or (b) the matter is an appeal to which Part 7 of Chapter 2 of the Industrial Relations Act 1996 applies. (2) This clause does not affect the jurisdiction of the Industrial Relations Commission in relation to a matter that is the subject of an application under section 146B of the Industrial Relations Act 1996 . 23As at 1 December 2011, existing staff as defined, were transferred to the TAFE Commission. As at that date the applicant was not in the employment of any government body having been terminated on 17 October 2011. Only existing staff could be transferred. 24As the applicant was not an existing staff member then he could not be transferred. 25At the point of termination the applicant was employed by the Managing Director, TAFE NSW as Division Head of the TAFE Commission of the Government Service. The legislation states that those existing staff are transferred to the TAFE Commission. Therefore there was a change in the entity of the employer. 26As at 1 December 2011, the Industrial Relations Commission ceased to have jurisdiction to determine "an industrial matter", "relating to a member of staff". 27As can be noted from section 26 of the Fair Work Act, the Industrial Relations Act, 1996 is excluded to national employees in respect to 'providing for rights and remedies connected with the termination of employment.' i.FAIR WORK ACT 2009 - SECT 26 Act excludes State or Territory industrial laws (1) This Act is intended to apply to the exclusion of all State or Territory industrial laws so far as they would otherwise apply in relation to a national system employee or a national system employer. (2) A State or Territory industrial law is: (a) a general State industrial law; or (b) an Act of a State or Territory that applies to employment generally and has one or more of the following as its main purpose or one or more of its main purposes: (i) regulating workplace relations (including industrial matters, industrial activity, collective bargaining, industrial disputes and industrial action); (ii) providing for the establishment or enforcement of terms and conditions of employment; (iii) providing for the making and enforcement of agreements (including individual agreements and collective agreements), and other industrial instruments or orders, determining terms and conditions of employment; (iv) prohibiting conduct relating to a person's membership or non-membership of an industrial association; (v) providing for rights and remedies connected with the termination of employment; (vi) providing for rights and remedies connected with conduct that adversely affects an employee in his or her employment; or (c) a law of a State or Territory that applies to employment generally and deals with leave (other than long service leave or leave for victims of crime); or (d) a law of a State or Territory providing for a court or tribunal constituted by a law of the State or Territory to make an order in relation to equal remuneration for work of equal or comparable value; or (e) a law of a State or Territory providing for the variation or setting aside of rights and obligations arising under a contract of employment, or another arrangement for employment, that a court or tribunal finds is unfair; or (f) a law of a State or Territory that entitles a representative of a trade union to enter premises; or (g) an instrument made under a law described in paragraph (a), (b), (c), (d), (e) or (f), so far as the instrument is of a legislative character; or (h) either of the following: (i) a law that is a law of a State or Territory; (ii) an instrument of a legislative character made under such a law; that is prescribed by the regulations. (3) Each of the following is a general State industrial law : (a) the Industrial Relations Act 1996 of New South Wales; (b) the Industrial Relations Act 1999 of Queensland; (c) the Industrial Relations Act 1979 of Western Australia; (d) the Fair Work Act 1994 of South Australia; (e) the Industrial Relations Act 1984 of Tasmania. (4) A law or an Act of a State or Territory applies to employment generally if it applies (subject to constitutional limitations) to: (a) all employers and employees in the State or Territory; or (b) all employers and employees in the State or Territory except those identified (by reference to a class or otherwise) by a law of the State or Territory. For this purpose, it does not matter whether or not the law also applies to other persons, or whether or not an exercise of a power under the law affects all the persons to whom the law applies. 28With respect to this matter, at the point of filing the application this Commission could hear and determine the matter. Prior to the matter being heard the TAFE Commission Act was amended coming into effect on 1 December 2011. 29 It is my finding that the amendments to the TAFE Commission Act did not catch the applicant in this matter because he was as at 1 December 2011 not an existing staff member. 30When considering the amending legislation there was a lack of transitional arrangements that existed to deal with an a person in similar circumstances to Mr McGrath. 31 As the responded stated it is silent with regard to any transitional arrangements. That it was silent it was submitted, was the clear intention of the legislature that, that was to be the meaning and intent of the amendment, that is there was to be no transitional arrangements. It was submitted that conflict would arise between section 26 of the Fair Work Act and a transitional arrangement that allowed this Commission to determine this matter. 32It was the applicant's submission that the lack of any transitional provision in the Amending Act dealing with the jurisdiction of the Commission to continue to deal with an application such as Mr McGrath, was clearly explicable on the basis of the lack of application of clause 16 of Schedule 4 to those circumstances. It was stated that it was not necessary for the legislature to enact such transitional provisions, as it was apparent that the Amending Act does not remove or affect the jurisdiction of the Commission to deal with such applications. The lack of any reference in the explanatory memorandum to the Amending Act, of any reference to the effect of clause 16 of Schedule 4 upon pending matters supports this contention. 33With respect to this issue I do not accept the submission of the applicant. In my view the words are plain and straightforward. I note the words expressed by Meagher J in Secretary of Department of Health v Harvey[1990] 34 IR at 58: " The Act means what it says, and, what is more important , it does not mean what it does not say." 34 I accept the submission of the respondent in that the lack of transitional arrangements makes it quite clear what the intention of the legislature was, that is, to remove the jurisdiction of this Commission from 1 December 2011 in regard to persons who were or are employed by the respondent. 35The final issue that must be determined is that if I am wrong and this Commission does have some residual power to determine this matter, then what Order could be made that is enforceable. 36 By his application the applicant has sought reinstatement to his former position and monetary compensation, " loss of earnings from date of dismissal at usual salary rate as indicated above." 37In Court of Appeal New South Wales case of Commissioner of Police for New South Wales v Lawrence & Anor [2011]NSWCA377 it stated : Section 89(1) of the IR Act empowers the IRC to order the employer (in this case the Commissioner) to "reinstate the applicant to his or her former position on terms not less favourable" than those that would have applied had the applicant been dismissed. To "reinstate" means to restore the applicant to the employment situation as it existed immediately before the applicant was removed from his or her position: Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; 221 CLR 539, at 544[14], per McHugh J; at 549-550[33]-[34], per kirby J; at 552-553 [43]-[46], per Hayne J;at 565[75], per Callinan and Heydon JJ. Section 89(1) does not confer power on the IRC to do anything other than reinstate the applicant to his or her former position and to do so on "terms not less favourable" than those the applicant previously enjoyed. 38I also note the comments made by Cahill V-P( which was agreed by Glynn and Maidment JJ) in Retail Traders Assn. v SDAEA 36 IR 38 when he stated: The essential provision of the relief claimed by the union in the proceedings below was " an award of reinstatement in favour of Mr Alvise Angeli to his employment with Norman Ross Homeworks". His Honour, in substance, granted that claim, the essential provision of the award made by him being that " Norman Ross Homeworks Pty Ltd shall reinstate Mr Angeli in its employ in his former position as Reserve Stock Hand at its store at Parramatta on and from 31 May 1989". In my opinion the effect of the claim so made, and the award made in pursuance thereof, was to impose on the company an obligation , a breach of which would be punishable at law, which was impossible of compliance. The purported award was thus beyond the jurisdiction of the Commission to make and , in effect, a nullity. My conclusion in this regard is based on my view of what is encompassed within the term of " reinstatement" in an industrial sense. I consider that the term essentially and fundamentally requires that the employment relationship formerly existing between the employer and employee can, as a matter of reality, and not in some notional or fictional way be re-established. If that result is not possible of achievement there can be no "reinstatement" because there can be no resumption of the employer-employee relationship which was previously severed. There can be no jurisdiction to impose on an employer a purported obligation, a breach of which is punishable by way of proceedings under s 93 of the Act, when compliance with such a requirement is a complete impossibility. In the above case, the applicant Mr Angeli unfortunately died post his filing an unfair dismissal claim, but prior to his case being heard. 39The applicant has accepted that there has been a change of entity of the employer. The entity that employed and subsequently terminated the applicant, Managing Director, TAFE NSW no longer exists. How does this Commission therefore reinstate the applicant to an entity that does no longer exist ? That entity no longer employs TAFE teachers. Through the Amendment Act all members of staff have been transferred to another entity and have vacated the jurisdiction of the Industrial Relations Commission of New South Wales and been transferred to the federal Fair Work Australia industrial system. 40It is my finding that this Commission does not have the jurisdiction to reinstate the applicant back to his position as a TAFE teacher, as the entity that once employed the applicant no longer exists and therefore the relationship can no longer be re-established. 41I therefore dismiss this claim for want of jurisdiction.

Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 April 2012