Industrial law - Other jurisdictions - Tasmania - Industrial Relations Commission - Jurisdiction and powers generally - Termination of employment - Claim for money payment - Whether rejected claim for money payment "industrial dispute" - Whether "industrial matter" - Whether Commission has jurisdiction to entertain claim for money payment when reinstatement not sought. Industrial Relations Act 1984 ss3, 29, 30, 31, 70. Robe River Iron Associates v The Association of Draughting, Supervisory and Technical Employees of Western Australia (1987) 68 WAIG 11, followed.

Solicitors for 1st respondent: Ritchie Parker Alfred

Green and Co

Counsel for 2nd respondent: L E Norris

Solicitors for 2nd respondent: DPP (Tas)

1 Appeal allowed.

2 Orders of Cox J made on 25 October 1994 (other than the

order adjourning the question of costs sine die) set aside.

3 The second respondent be restrained from further

proceeding with a conference pursuant to the Industrial

Relations Act 1984, s30 in proceedings T5080 of 1994 and

from making any order in relation to the matter in respect

of which that conference was convened.

GREEN CJ The appellant was the employer of the first respondent and the second respondent is a member of the Tasmanian Industrial Commission created by the Industrial Relations Act 1984 ("the Act"), s5. On 11 May 1993 the appellant dismissed the first respondent from his employment. The first respondent lodged a document with the Commission which came to be identified as T5080 of 1994. Thereafter the following document was signed by the President of the Commission:

"REFERRAL FORM

To: COMMISSIONER R K GOZZI

Attached is Application T5080 of 1994, an application by

Ritchie and Parker Alfred Green and Co pursuant to Section

30(2) of the Act, for a conference to be convened for the

purpose of settling an industrial dispute, relating to an

alleged unfair dismissal, between Mr Anthony John Gurr and

Newton (sic) Timber and Hardware Pty Ltd (trading as G White

and Sons).

Pursuant to Section 15(1)(d) of the Act, I hereby assign the

matter to you for hearing and determination.

F D Westwood

PRESIDENT

01.06.94"

The "application" attached to that Form has not been produced in these proceedings. It was subsequently indicated by the Registrar and the parties accept that the reference to s30(2) was wrong and should have been to s30(1). The Registrar issued a "notice of hearing" to the appellant and the first respondent giving notice of "a conference pursuant to s30" of the Act "for the purpose of settling an industrial dispute between" the first respondent and the appellant. On 23 June 1994 the second respondent commenced the hearing of what purported to be a conference pursuant to the Act, s30(1).

2. At the hearing before the second respondent counsel for the first respondent orally asserted inter alia that the dismissal of the first respondent was "harsh and unjust" and requested the Commissioner to:

"exercise its powers generally under section 19 of the

Industrial Relations Act, and more specifically under

section 31, subsection (1) of that Act for the purpose of

settling this industrial dispute."

Counsel for the appellant made a preliminary submission that the second respondent had no jurisdiction to hear the proceedings or grant any relief. Those submissions were overruled by the second respondent on 19 July 1994. By letter dated 15 July 1994 written in response to a request for particulars from the solicitors for the appellant the solicitors for the first respondent indicated that he was "primarily seeking that the Tasmanian Industrial Commission makes such orders as are necessary to settle the industrial dispute existing between" the appellant and the first respondent including in particular "a declaration that your client was not entitled to dismiss our client for misconduct and that, accordingly, his dismissal was harsh, unjust and unfair" together with orders for the payments of "various sums of money" amounting in all to some $141,000. In the same letter the solicitors said that the first respondent would submit that "reinstatement is not an appropriate remedy".

3. On 27 July 1994 Crawford J ordered that the second respondent:

"... show cause why a writ of prohibition should not be

issued directed to him prohibiting him from further

proceeding to conduct a conference pursuant to Section 30 of

the Industrial Relations Act 1984 in proceedings T5080 of

1984 (sic) or prohibiting him from entertaining any

application for compensation or damages, or why some other

relief should not be given."

"a) That the Commissioner has no jurisdiction to preside at

a conference pursuant to Section 30(1) of the Industrial

Relations Act 1984 (the Act) in that the President has not

summoned any persons to attend such conference at a time and

place specified in the summons pursuant to Section 30(1) of

the Act;

b) That the Commissioner has no jurisdiction to preside at a

conference pursuant to Section 30(1) of the Act in that the

subject matter of the conference is not an industrial

dispute within the meaning of the Act;

c) The Commissioner has no jurisdiction to entertain any

application by the Applicant in respect of harsh, unjust or

unfair dismissal as no such jurisdiction is conferred by the

provisions of the Industrial Relations Act 1984;

d) Alternatively, if the Commissioner does have jurisdiction

to entertain an application in respect of harsh unjust or

unfair dismissal, then the Commissioner may have

jurisdiction to order reinstatement or re-employment but has

no jurisdiction to award damages or monetary compensation in

lieu of an order for reinstatement or an order for

re-employment.

e) Alternatively, as the applicant in the proceedings before

the Commission does not seek any order for reinstatement or

re-employment, the Commissioner has no jurisdiction."

4. Upon the return of that order Cox J held that ground (a) had been made out and that "prohibition will issue accordingly". "However" his Honour continued:

"... the real issue in this litigation is not the

continuance of the conference which, through technical

defect, was of no validity, but rather whether the

respondent (or any other member of the Commission) has power

in the circumstances to make the orders sought by Mr Gurr,

namely orders for the payment of moneys as a means of

settling the dispute. It should be noted that Mr Gurr is

not seeking reinstatement which he regards as an

inappropriate remedy because he considers that it is very

unlikely that a proper harmonious working relationship could

be restored in light of the events which have transpired.

When asked by the prosecutor's solicitors for particulars of

the amounts claimed, Mr Gurr's solicitors indicated that he

would be seeking sums equivalent to two years' salary, the

value of the use of a car for two years, superannuation

contributions for the same time and a telephone allowance.

These sums aggregated nearly $100,000 and he conceded that

he should give credit for earnings procured since his

dismissal in the order of $20,000. He also sought release

of his current superannuation entitlements and his long

service leave entitlement."

Cox J then considered the remaining grounds and concluded:

"... although Prohibition lies and the order nisi will be

made absolute in respect of the conference invalidly called

and held, the writ should not issue on the broader question.

It is not beyond the powers of the Commission, when properly

invoked, to order pursuant to s31 the payment of monetary

compensation to Mr Gurr if the Commissioner is of opinion

that that course is appropriate notwithstanding that he may

form the view that reinstatement is not possible or

practical".

"1 THAT a writ of prohibition be issued directed to the

Respondent prohibiting him from further proceeding to

conduct a conference pursuant to Section 30 of the

Industrial Relations Act 1984 in proceedings T5080 of 1984

unless and until the President of the Industrial Relations

Commission pursuant to Section 30(1) of the Industrial

Relations Act 1984 summons persons to attend such a

conference at a time and place specified in the summons

pursuant to Section 30 of that Act;

2 THAT the application otherwise be dismissed".

5. This is an appeal "against that part of the judgment of the Honourable Mr Justice Cox dated 25th day of October 1994 whereby his Honour refused to make absolute the general order to show cause granted by the Honourable Mr Justice Crawford on the 27th day of July 1994 upon grounds (b), (c), (d) and (e) thereof".

"1 That the Learned Trial Judge erred in law in finding that

there was between the prosecutor and Anthony John Gurr an

'industrial dispute' within the meaning of Section 30 (1) of

the Industrial Relations Act 1984;

2 That the Learned Trial Judge erred in law in concluding

that the Respondent had jurisdiction pursuant to the

provisions of the Industrial Relations Act 1984 to order a

payment of compensation in favour of Mr Anthony John Gurr in

respect of the alleged unfair, harsh, unjust or unreasonable

termination of his employment;

3 That the Learned Trial Judge erred in law in finding that

the Respondent had jurisdiction pursuant to the provisions

of the Industrial Relations Act 1984 to entertain an

application by Anthony John Gurr in respect of the

termination of his employment when Anthony John Gurr did not

seek reinstatement or re-employment;

4 That the Learned Trial Judge erred in law in concluding

that the Respondent had jurisdiction pursuant to the

provisions of the Industrial Relations Act 1984 to award

damages or monetary compensation in lieu of an order for

reinstatement or for re-employment."

7. The appellant gave notice that it sought inter alia the following order:

"That in addition to the order absolute for prohibition

granted by the Learned Trial Judge, that the Respondent be

prohibited from entertaining any further or other

application by Anthony John Gurr in respect of the

termination of his employment with the prosecutor".

8. The order made by Cox J did not recite the grounds of the general order upon which it was made and there is no requirement that those grounds should have been recited in it. The grounds of the general order were not a part of the order made by Cox J and the appeal against the primary judge's refusal to "make absolute the general order to show cause ... upon grounds (b), (c), (d) and (e)" of that order thus appears to be misconceived. However the appeal can be regarded as an appeal against par2 of the orders made by Cox J so that the substance of the appeal should be taken to be an appeal against the conditional and limited terms in which the order was made and an application for an unconditional order in lieu thereof that the second respondent be restrained from entertaining the proceedings identified as T5080 of 1994.

9. The relevant statutory provisions are set out in the reasons for judgment of the other members of the Court and I do not need to repeat them.

10. By virtue of the provisions of the Act, s31(1), the jurisdiction of the second respondent was confined to holding a conference and making orders "for the purpose of preventing or settling the industrial dispute in respect of which the ... conference was convened". It is necessary therefore to determine what was the dispute in respect of which the conference was convened. As the President formed his opinion before the hearing before the Commissioner took place and before the letter of 15 July 1994 was written, what was said at the hearing and the contents of the letter do not strictly prove the nature of the dispute although they might retrospectively throw light on what it was. However the learned primary judge's findings as to the nature of the matters raised by the first respondent with the President have been accepted for the purposes of this appeal. Rightly, in my respectful view, there was no suggestion in the findings by Cox J or in the submissions made to this Court that the first respondent's "application" for a "declaration" was or was capable of amounting per se to an industrial dispute for the purposes of the Act. Upon the basis of the findings by Cox J and the other sketchy materials before the Court, the dispute which is the subject of these proceedings can be identified as being that which comprises the refusal by the appellant to pay the sums of money which the first respondent demanded. The issue raised by ground 1 of the appeal is therefore whether that dispute was an industrial dispute for the purposes of the Act. In my view that issue should be considered in conjunction with the issue raised by ground 2, namely whether the second respondent had jurisdiction to order that the appellant pay those sums of money to the first respondent. The only way in which the dispute in this case could have been prevented or settled was by the payment of the money claimed by the first respondent. If in fact the Commissioner had no power to order that such a payment be made there could be no room for the Act to operate and the dispute could not be regarded as being within its purview.

11. Applying those parts of the definitions of "industrial dispute" and "industrial matter" which are relevant to the particular facts of this case, the question is whether the dispute in this case was a dispute relating to a matter pertaining to the relations of employers and employees or a dispute relating to the dismissal or reinstatement of a particular employee. Those questions must not be considered in the abstract but in the circumstances of the particular dispute in this particular case.

12. The first respondent's demand for compensation was made well after he had ceased to be an employee and there is no suggestion that the appellant's refusal to accede to that demand had any effect upon or concerned any then current employees. Applying the reasons for judgment of Stephen J in R v Portus [1973] HCA 64; (1972-1973) 129 CLR 312 at 329 and the passages he cites from the judgments in R v Hamilton Knight; Ex parte The Commonwealth Steamship Owners Association (1952) 86 CLR at 294, 301, 305, 319 and 329 the dispute could not therefore be said to pertain to the relations of employers and employees. I do not regard the observations made by Gibbs CJ in Slonim v Fellows [1984] HCA 51; (1984) 154 CLR 505 as militating against that conclusion. In that case Gibbs CJ held at 511 that a dispute between a dismissed employee and her employer was an industrial dispute between an employer and employee notwithstanding that the appellant was no longer an employee because the dispute fell within an alternative limb of the definition of "industrial dispute" which included disputes between an association of employees and an employer. In this case there was no such dispute.

13. The dispute could not be regarded as a "dispute relating to the reinstatement" of the first respondent as the only remedy sought by the respondent was the payment of money.

14. Counsel for the respondent submits that s31(1) gives the Commission carte blanche to make any appropriate orders. But it is obvious that the power conferred by that subsection cannot be at large. One could readily envisage draconian orders which could very effectively settle an industrial dispute but which it would be outrageous to regard as being intended by Parliament to be within the commission's jurisdiction. So some limits to the power must be taken to exist. In Robe River Iron Associates v The Association of Draughting, Supervisory and Technical Employees of Western Australia (1987) 68 WAIG 11 the following views were expressed by the Court as to whether a power to deal with a dispute arising out of the unfair dismissal of an employee included a power to award compensation:

"The words of Gibbs CJ in Slonim v Fellows at p 510 are

apposite here: 'The dispute in the present case concerns

whether the (employee) was fairly dismissed, and if not,

whether (he) should be reinstated'. In other words, the

jurisdiction of the Commission to deal with the recent

unfair dismissal of an employee extends to ordering the

employer to re-employ him; but it does not extend to making

an order for compensation at large, quite unrestricted to

the legal entitlement of the employee at the time of his

dismissal. If that power exists, it is difficult to set any

limits to it. It is, I think, significant that the

respondent did not cite any authority from any other State

in Australia in which an order for compensation has been

made in circumstances such as the present, although there

are numerous instances where re-instatement has been

ordered. It is further to be observed that, in South

Australia, where the powers of the Commission are already

extremely wide, the Industrial Conciliation and Arbitration

Act 1972 was amended in 1984 to confer this power expressly

upon the Commission - section 31 (3) (c). In my opinion, if

the Parliament desires the Commission to have such a power,

it should legislate to that effect, as indeed it has already

done in the limited context of section 96I.

This conclusion is not one which I have reached without

difficulty, and it has been reached in an appreciation of

the apparent width of the jurisdiction conferred on the

Commission by section 23 (1) of the Act to inquire into and

'deal with' any industrial matter (except any matter

provided for in paragraph (a)). It should, however, be

observed that the jurisdiction is conferred "subject to this

Act". Furthermore, to deny the power to order compensation

in this case is not to deny the Commission power to deal

with the industrial matter. It is simply to deny that its

power to do so is unconstrained in any manner. It may deal

with a complaint of unfair dismissal in the most appropriate

manner, by ordering re-employment in a proper case. If the

respondent's argument were correct, it is not difficult to

envisage a vast range of powers which would be available to

the Commission which it can never have been thought to have

been conferred upon it."

"If it be accepted, and as stated for the purpose of this

exercise I do accept it, that the Commission has power to

direct the former employer to re-employ the ex-employee,

then there is clear jurisdiction for the Commissioner to

embark upon the enquiry he first embarked upon in this case.

There is, however, no express power in the Act to award

'compensation' in this type of circumstance. And once the

finding is made that the employee shall not be reinstated,

then it seems to me that, even if the matter started off

being an industrial dispute in the sense that it was a

matter affecting or relating to the rights of employer and

employee, the matter is no longer an 'industrial matter' as

defined because the termination of that employment has been

confirmed by the Commissioner's finding that he be not

re-employed. That settled that particular industrial dispute.

The union sought reinstatement. It was not granted. It is

recognised that by section 26 (2), in granting relief or

redress under the Act, the Commissioner is not restricted to

the specific claim or to the subject matter of the claim:

but that section does not authorise the exercise of a power

that is not otherwise within power. One can well understand

an argument that the power to order re-employment connotes

an ancillary power to award lost wages because the

relationship of employer and employee is to be reactivated

by the order that resolves that industrial dispute; but

whatever the merits of that argument, it seems to me that

there is no argument to support a claim for compensation

unrelated to the contract of employment just ended, at least

in this case where the sole and only industrial dispute

related to the way in which the former employer treated the

particular ex-employee.

...

The resolution of an industrial dispute by an order

reinstating or ordering the re-employment by a former

employer of a recently dismissed ex-employee will, of

course, cut across the accepted common law remedies. A

Court of Equity would not normally grant such relief. The

only basis, therefore, to justify such an order is that it

does resolve that industrial dispute or, alternatively, the

power to so order exists as a matter of construction of the

Act or because it is necessarily implied in the Act. By

parity of reasoning, it could be argued that the grant of

alternative relief is open because that also apparently

would resolve the industrial dispute. In logic, that may be

accepted. It seems to me, however, that the difference

between the two orders for relief is that in the first case

the order for reinstatement or re-employment retains or

reactivates the industrial basis for the dispute, i.e. the

relationship of employer and employee. There is no such

nexus involved with relief that does nor retain that

relationship. Where the dispute, like the present, is

resolved solely on the issues in the dispute between the

particular former employer with the particular ex-employee,

there is no charter to make orders that are not part of a

reactivated industrial relationship. Put another way, an

order cannot be made which affects rights and obligations

arising out of an industrial matter when the finding of the

Commissioner has confirmed that the 'industrial' element

involved has ended."

Per Rowland J at 22 and 23. For the reasons given in that case which I adopt, I am of the view that in the absence of express provisions to that effect in the Act, a Commissioner has no general jurisdiction to order that an employer pay compensation to an employee who has been dismissed. The Act contains no such express provisions but it has been submitted that the existence of such a power is implied by s70(1)(b). If Parliament had intended to confer such a far reaching power on a Commissioner, I find it very difficult to see why it would have chosen to do so by adopting the oblique device of indirectly recognising the existence of such a power in statutory provisions relating to the appellate jurisdiction of a Full Bench of the Commission. In any event it is not necessary to read s70(1)(b) so that it has the effect of conferring or deeming the existence of a power at large to award compensation for unfair dismissal: it may be that s70(1)(b) should be read not as assuming or deeming that such a power exists, but as subject to a proviso that it exists. However it is not necessary to reach a concluded view about the precise effect of s70(1)(b) because at its highest the power which it confers or recognises as existing is only exercisable when a Commissioner has found that reinstatement is not possible or practicable. In other words, the power to order that money be paid to an employee is only available as a remedy in the alternative to an order that an employee be reinstated, not as a remedy per se. In this case the first respondent has never sought reinstatement and the dispute has not arisen out of a refusal by the appellant to reinstate him.

15. Although it might be arguable that the first respondent's claim to be paid money could be regarded as "relating to" his dismissal, for the foregoing reasons I hold that the appellant's refusal to meet that claim was not an industrial dispute for the purposes of the Act.

16. In my opinion the second respondent had no jurisdiction to entertain the proceedings referred to him by the President and the learned primary judge's order should have been made in unconditional terms.

17. I would allow the appeal. I agree with the terms of the order proposed by Zeeman J.

UNDERWOOD J The issue in this appeal is whether Cox J erred in refusing to order the issue of a writ of prohibition prohibiting Industrial Commissioner Gozzi from "entertaining any application for compensation or damages" by Anthony John Gurr against his former employer, Newtown Timber and Hardware Pty Ltd.

2. The following recital of facts and events is taken from the judgment of the learned judge at first instance, undisputed material before him and the record of this Court. Mr Gurr, the first respondent, was employed by the appellant for nearly fifteen years. On 11 May 1993 he was dismissed from that employment. In late May 1994 it appears that he applied to the President of the Industrial Commission pursuant to the Industrial Relations Act 1984, s29 for a hearing before a Commissioner in respect of an industrial dispute which he claimed had arisen out of his dismissal. His Honour used the expression "it appears" no doubt because the letter of application was not in evidence before him although a "Referral Form" dated 1 June 1994 to which it was once attached was in evidence. This document was written by the President of the Commission to the second named respondent. It said:

"REFERRAL FORM

To: COMMISSIONER R K GOZZI

Attached is Application T5080 of 1994, an application by

Ritchie and Parker Alfred Green and Co pursuant to Section

30(2) of the Act, for a conference to be convened for the

purpose of settling an industrial dispute, relating to an

alleged unfair dismissal, between Mr Anthony John Gurr and

Newton (sic) Timber and Hardware Pty Ltd (trading as G White

and Sons).

Pursuant to Section 15(1)(d) of the Act, I hereby assign the

matter to you for hearing and determination."

3. The next step was taken by the Registrar of the Industrial Commission. On 7 June 1994 he issued a "notice of hearing" to the appellant. It advised the appellant that for the purpose of settling an industrial dispute between the first respondent and the appellant "re alleged unfair termination", a conference would be held before the second respondent on the date and at the time and place set out in the notice.

4. The appellant appeared at that conference by its solicitor and put submissions to the effect that the second respondent had no jurisdiction to make any orders at the hearing of the conference. The second respondent rejected those submissions. He concluded, for reasons given in writing, "that the Commission has jurisdiction to deal with this industrial dispute pursuant to Section 30(1) of the Act. Accordingly the matter has been listed for resumption in Launceston at 9.30am on 3 August 1994."

5. On 15 July 1994 the appellant applied to this Court for an order nisi calling upon the second respondent to show cause why a writ of prohibition should not issue prohibiting the second respondent, "from further proceeding to conduct a conference pursuant to Section 30 of the Industrial Relations Act 1984 in proceedings T5080 of 1984 (sic) or prohibiting him from entertaining any application for compensation or damages, ...". The order nisi was issued on the following grounds:

"a) That the Commissioner has no jurisdiction to preside at

a conference pursuant to Section 30(1) of the Industrial

Relations Act 1984 (the Act) in that the President has not

summoned any persons to attend such conference at a time and

place specified in the summons pursuant to Section 30(1) of

the Act;

b) That the Commissioner has no jurisdiction to preside at a

conference pursuant to Section 30(1) of the Act in that the

subject matter of the conference is not an industrial

dispute within the meaning of the Act;

c) The Commissioner has no jurisdiction to entertain any

application by the Applicant in respect of harsh, unjust or

unfair dismissal as no such jurisdiction is conferred by the

provisions of the Industrial Relations Act 1984;

d) Alternatively, if the Commissioner does have jurisdiction

to entertain an application in respect of harsh unjust or

unfair dismissal, then the Commissioner may have

jurisdiction to order reinstatement or re-employment but has

no jurisdiction to award damages or monetary compensation in

lieu of an order for reinstatement or an order for

re-employment.

e) Alternatively, as the applicant in the proceedings before

the Commission does not seek any order for reinstatement or

re-employment, the Commissioner has no jurisdiction."

6. On the return of the order nisi, it was immediately apparent that the writ should issue because there had been non compliance with procedural requirements.

7. A preliminary observation is that, although the first respondent apparently applied for a hearing by the Commission in respect of an industrial dispute pursuant to the Industrial Relations Act 1984, s29(1), that subsection gave him no right to do so. It provides:

"(1) An organisation, employer or employee may apply to the

President for a hearing before a Commissioner in respect of

an industrial dispute that has arisen or the applicant

considers is likely to arise."

8. The first respondent was not an employee of the appellant at the time he made the application. However, that is not the end of the matter for the Act, s30(1) provides:

"The President may, whenever in his opinion it is necessary

or desirable for the purpose of preventing, settling, or

attempting to prevent or settle, an industrial dispute,

summon any person to attend, at a time and place specified

in the summons, at a CONFERENCE presided over by the

President or by such other Commissioner as the President

directs." (my emphasis)

9. Unfortunately, the President's "Referral Form" to the second respondent purported to rely on s30(2) and not s30(1), but it seems to have been accepted by all concerned in these proceedings that such reference was no more than a "typographical error" and as such it requires no further consideration on this appeal. Section 30(1) gave the President of the Industrial Commission power to summon the appellant to a conference provided he held the opinion that the exercise of that power was "necessary or desirable for the purpose of preventing, settling or attempting to prevent or settle, an industrial dispute." There was no evidence that the President held that opinion other than such evidence as might be inferred from the fact that he issued the "Referral Form" to the second respondent. However, a careful reading of that document does not easily give rise to that inference, for the President wrote that it was an application by Ritchie and Parker Alfred Green and Co "for a conference to be convened ...". Further, as the letter of application attached to the "Referral Form" was not in evidence before the learned judge at first instance, and as there was no other evidence relating to the President's state of mind at the relevant time, there was no material upon which it might be concluded that if the President did hold the requisite opinion, it was reasonably held. Cf R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953-54) 88 CLR 100 at 117-118. This jurisdictional prerequisite was raised by then counsel for the appellant at the hearing before the second respondent as "a peripheral point" and on the basis that the appellant was entitled to know the basis for the opinion it was apparently inferred that the President held.

10. Quite apart from the erroneous reference to s30(2) in the "Referral Form", the conference before the second respondent was fundamentally flawed. The President's power pursuant to s30(1) was to summon the appellant (and any other person he considered appropriate as provided by the subsection) to attend a conference. The President did not exercise that power at all. He did not issue a summons to the appellant or any other person. Instead, the Registrar issued a notice of proceeding. Without the lawful exercise of the power conferred by s30(1), the second respondent had no jurisdiction to make any order binding upon the appellant. On the return of the order nisi counsel for the first respondent conceded that the procedure had been ineffective to convene a conference. Accordingly, the learned judge found that ground (a) of the order nisi had been made out and ordered that prohibition issue accordingly. In his reasons for judgment the learned judge went on to say at 2:

"However, the real issue in this litigation is not the

continuance of the conference which, through technical

defect, was of no validity, but rather whether the

respondent (or any other member of the Commission) has power

in the circumstances to make the orders sought by Mr Gurr,

namely orders for the payment of moneys as a means of

settling the dispute. It should be noted that Mr Gurr is

not seeking reinstatement which he regards as an

inappropriate remedy because he considers that it is very

unlikely that a proper harmonious working relationship could

be restored in light of the events which have transpired.

When asked by the prosecutor's solicitors for particulars of

the amounts claimed, Mr Gurr's solicitors indicated that he

would be seeking sums equivalent to two years' salary, the

value of the use of a car for two years, superannuation

contributions for the same time and a telephone allowance.

These sums aggregated nearly $100,000 and he conceded that

he should give credit for earnings procured since his

dismissal in the order of $20,000. He also sought release

of his current superannuation entitlements and his long

service leave entitlement."

11. The learned judge held that, although the writ should issue on the basis that the conference was invalidly called, it should not issue on "the broader question." The operative part of the formal order of the court from which this appeal is brought provides:

"1 THAT a writ of prohibition be issued directed to the

Respondent prohibiting him from further proceeding to

conduct a conference pursuant to Section 30 of the

Industrial Relations Act 1984 in proceedings T5080 of 1984

unless and until the President of the Industrial Relations

Commission pursuant to Section 30(1) of the Industrial

Relations Act 1984 summons persons to attend such a

conference at a time and place specified in the summons

pursuant to Section 30 of that Act;"

12. Those considering the terms of that order need to bear in mind that before the President can summon any person to attend a conference, he must have first formed the requisite statutory opinion for without that, all that follows will be to no effect. The grounds of appeal are as follows:

"1 That the Learned Trial Judge erred in law in finding that

there was between the prosecutor and Anthony John Gurr an

'industrial dispute' within the meaning of Section 30 (1) of

the Industrial Relations Act 1984;

2 That the Learned Trial Judge erred in law in concluding

that the Respondent had jurisdiction pursuant to the

provisions of the Industrial Relations Act 1984 to order a

payment of compensation in favour of Mr Anthony John Gurr in

respect of the alleged unfair, harsh, unjust or unreasonable

termination of his employment;

3 That the Learned Trial Judge erred in law in finding that

the Respondent had jurisdiction pursuant to the provisions

of the Industrial Relations Act 1984 to entertain an

application by Anthony John Gurr in respect of the

termination of his employment when Anthony John Gurr did not

seek reinstatement or re-employment;

4 That the Learned Trial Judge erred in law in concluding

that the Respondent had jurisdiction pursuant to the

provisions of the Industrial Relations Act 1984 to award

damages or monetary compensation in lieu of an order for

reinstatement or for re-employment."

The jurisdiction of the Industrial Commission is prescribed by the Act, s19 which provides:

"(1) Subject to this Act, the Commission has jurisdiction to

hear and determine any matter arising from, or relating to,

an industrial matter.

(2) For the purposes of subsection (1), the Commission may

(a) make an award or order;

(b) make a declaration for the purposes of s43;

(c) conduct hearings and conferences for settling industrial

disputes;

(d) conduct arbitrations under section 61;

(e) hear and determine appeals under Part VI and Part VIII;

(f) sit in joint proceedings;

(g) cancel, under section 68, the registration of an

organisation; and

(h) hear and determine application under sections 79 and

81."

13. Section 20 prescribes the manner in which the jurisdiction is to be exercised by the Commission. Broadly speaking, the Commission is required to act according to equity and good conscience and to have regard to the merits of the case without regard to technicalities and to do such things as appear to be proper for preventing and settling industrial disputes. Jurisdiction with respect to the conduct of hearings and conferences conferred by s19(2)(c) depends on the existence of (inter alia) an "industrial dispute". The Act, s3(1) defines industrial dispute to mean:

"A dispute relating to an industrial matter and includes a

dispute relating to

(a) the engagement, dismissal, or reinstatement of any

particular employee or class of employees;

(b) the entering into, execution, or termination of any

contract for services in circumstances that affect, or may

affect, an employee in, or in relation to, his work; or

(c) ...

but does not include a dispute relating to any matter

arising from a registered enterprise agreement ..."

14. There is also a definition of industrial matter. It is defined to mean:

"Any matter pertaining to the relations of employers and

employees and, without limiting the generality of the

foregoing, includes

(there follows a long list of matters all of which are

directly related to the actual terms of the contract of

employment such as wages, hours worked and so on.)"

15. The Act, s31(1) gives the Commissioner presiding over a conference "under section 30" power to make certain orders. Contravention of, or non compliance with any such order renders the defaulter liable to a penalty not exceeding fifty penalty units. The power to make an order is only exercisable at a hearing or a conference held to settle or prevent an industrial dispute in respect of which the President held the necessay opinion and issued the necessary summons. No facts other than those I have set out, were found by the learned judge about the dispute in respect of which the President opined (assuming he did opine) that it was necessary to summon the appellant to a conference for the purpose of preventing or settling it. Counsel for the appellant said that in his submission on ground 1, the only facts necessary to sustain his argument were that the first respondent was dismissed from his employment about twelve months before the application to the President was made, that the application was made by the first respondent and not by a registered organisation and that his dismissal did not, and has not resulted in industrial disharmony other than between the appellant and the respondent. With the concurrence of counsel, the hearing of the appeal of the appeal proceeded on this basis.

16. The fundamental proposition in the submissions put on behalf of the appellant with respect to ground 1 was that in its ordinary meaning, the expression "industrial dispute" means more than a complaint by an ex-employee that he was unfairly dismissed some twelve months earlier. It was put that to qualify as an industrial dispute, a dispute must not only relate to the relationship between employer and employee, but must also have some collective aspect to it, such as the involvement in it of a number of employees or an organisation of employees. It was submitted that a dispute between an ex-employee and his former employer over the terms of his dismissal twelve months earlier which did not attract the interest or involvement of any other employee or any organisation of employees, did not have the qualities of an industrial dispute. Such a dispute it was argued, was a contractual dispute, the jurisdiction over which was confined to the courts administering the common law.

17. In a general sense, there is authority to support that argument. In the early cases concerning the Conciliation and Arbitration Act 1904 (Cth), the High Court adopted the approach urged upon us by counsel for the appellant. In Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 Griffiths CJ said at 332:

"An industrial dispute exists where a considerable number of

employees engaged in some branch of industry make common

cause in demanding from or refusing to their employers

(whether one or more) some change in the conditions of

employment which is denied to them or asked of them."

"An industrial dispute in the everyday meaning of the term

does not take place unless a number of employees in an

industry unite on their part to enter into controversy with

the person or persons employing them so as to secure what

they consider an improvement, or to prevent or remove what

they view as a wrong or a hardship, in relation to the terms

of their employment."

The other members of the court expressed similar views.

18. The question of the ordinary meaning of the expression "industrial dispute" was considered by the High Court again nearly three quarters of a century later in R v Coldham and Ors ex parte the Australian Social Welfare Union [1983] HCA 19; (1983-84) 153 CLR 297: (the Australian Social Welfare Union case). At 312-313 the court said:

"The correct approach to the construction of the expression

'industrial disputes' in section 51(xxxv) was, we think,

expressed by Higgins J in the Municipalities' case (1919) 26

CLR at pp 572-575 and the Insurance Staffs' case (1923) 33

CLR at pp 528-530, reflecting the view earlier expressed by

O'Connor J in Jumbunna shorn of its association with the

doctrine of inter-governmental immunities. The words are

not a technical or legal expression. They have to be given

their popular meaning - what they convey to the man in the

street. And that is essentially a question of fact. ...

It is, we think, beyond question that the popular meaning of

'industrial disputes' includes disputes between employees

and employers about the terms of employment and the

conditions of work. Experience shows that disputes of this

kind may lead to industrial action involving disruption or

reduction in the supply of goods or services to the

community. We reject any notion that the adjective

'industrial' imports some restriction which confines the

constitutional conception of 'industrial disputes' to

disputes in productive industry and organised business

carried on for the purpose of making profits. The popular

meaning of the expression no doubt extends more widely to

embrace disputes between parties other than employer and

employee, such as demarcation disputes, but just how widely

it may extend is not a matter of present concern."

19. However, the resolution of this appeal does not require the court to ascertain the ordinary or popular meaning of the expression "industrial dispute". It requires the court to ascertain the meaning of that expression as enacted in and defined by the Industrial Relations Act 1984 (Tas). In the ascertainment of that meaning it is of course appropriate to bear in mind the ordinary general meaning of the word, but at the end of the day the court has to construe the intention of the Tasmanian Parliament for unlike the Constitution, s51(xxxv), there are legislative definitions of the expressions "industrial dispute" and "industrial matter" in the Tasmanian Act.

20. In able arguments presented by both counsel upon the hearing of this appeal, the Court was pressed to consider the meaning that courts in other jurisdictions had attributed to the words "industrial matters" and "industrial dispute" and it is accordingly appropriate to discuss some of the cases to which we were referred, although I am clearly of the view that none of them really assist for each depend upon the statutory form of expression under consideration. In particular, the cases in the High Court concerning the Commonwealth Conciliation and Arbitration Act depend on considerations which are relevant to the effect of the Commonwealth Constitution and are of no direct assistance in determining the meaning of expressions enacted by the Tasmanian Parliament. In expressing this view I take comfort from a similar view expressed by Gibbs CJ in Slonim v Fellows [1984] HCA 51; (1983-84) 154 CLR 505 at 509 where his Honour was concerned to construe the meaning of industrial dispute enacted in the Industrial Relations Act 1979 (Vic). That case and R v Marshall and Ors; ex parte Plumrose (Australia) Limited [1983] VicRp 42; (1983) VR 469 starkly illustrate the limited value for the resolution of this appeal, of judicial construction in other jurisdictions of identical words but to which the Parliaments in those other jurisdictions have attributed different meanings. At the relevant time the Victorian Act, by s31 provided that an industrial dispute was:

"A dispute arising between an employer and an one or more of

his employees, or between an association of employees and

one or more employers or association of employers, or

between two or more associations of employers or two or more

associations of employees, and includes a threatened, or

impending or probable dispute."

21. It will immediately be noted as the judgment of the court in Plumrose observed, that the definition is concerned only with the identity of the parties to, and not with the character of an industrial dispute. The court referred to a number of passages from the judgment in the Jumbunna Coal Mine case, two of which I have set out earlier, and to a passage from the Social Welfare Union case that I have also set out earlier and said at 476:

"Thus the essential element in an industrial dispute in the

ordinary meaning of that expression is that it should be a

dispute as to the terms and conditions of the employment of

persons who are employees and are themselves disputants or

are represented by one of the disputants. Thus a dispute as

to whether a particular employer should employ a particular

employee is not within the general concept of an industrial

dispute even when the demand is made by an association of

employees. The dispute does not touch the terms or

conditions of employment of any employee."

22. There is nothing in that case to assist the appellant's argument for the Tasmanian Act, s3(1) provides its own meaning of an "industrial dispute", a meaning that is concerned principally with the character of, rather than the parties to such a dispute. In any event, as counsel correctly acknowledged, the decision of the Full Court in the Plumrose case was effectively overruled by Slonim v Fellows (supra). In the latter case the dispute, over the dismissal of an employee, was between the former employee's union and the employer. Gibbs CJ referred to his judgment in the Federated Clerks Union of Australia and Anor v The Victorian Employers' Federation and Ors, reported in the same volume as Slomin's case at 472 and said of the definition in the Victorian Act at 508:

"For the reasons which I have given in Federated Clerks

Union of Australia v Victorian Employers' Federation, this

definition does not encompass every dispute between the

parties mentioned in the definition; the object and scope of

the Act indicate that the definition refers only to a

dispute which would be regarded as an industrial dispute in

the ordinary meaning of those words, except to the extent

that the meaning is expanded by the description of the

parties and by the reference to a threatened or impending or

probable dispute. An industrial dispute in the ordinary

sense of the words is, in my opinion, for the reasons which

I gave in Federated Clerks Union of Australia v Victorian

Employers' Federation, a dispute which arises out of or, in

the course of, the relationship between employer and

employee as such. It will not be enough if the connexion

between the subject of the dispute and the relationship of

employer and employee is remote or indirect."

23. His Honour did say later (510) that termination of the contract of employment does not necessarily mean that an industrial dispute cannot thereafter arise with respect to the fairness of that termination. Gibbs CJ then concluded at 510-511:

"In my opinion an industrial dispute in the ordinary sense

had arisen in the present case. To come within the

definition in s3(1) of the Act the dispute must, however, be

(amongst other things) between an employer and one or more

of his employees or between an association of employees and

one or more employers. In the present case, the applicant

was no longer an employee, since her employment had been

terminated. The dispute was, however, between an

association of employees and an employer, and for the

reasons that I have given I consider that it arose directly

out of the relationship which had existed between a member

of the association, as employee, and the employer, as

employer."

24. Counsel for the appellant urged upon the court the proposition that his Honour's conclusion was dependent upon the fact that the parties to it were an employer and an association of employees and he would have reached a different result had the dispute been confined to the employee and the employer. I think that might be correct, because the definition in the Victorian Act provided that the dispute must be between an employee (not ex-employee) or an association of employees and an employer etc, and this was so even if the matter of disputation involved no more than whether an employer had unfairly dismissed an employee.

25. Wilson J, with whose judgment Mason J (as he then was) agreed, said at 514 that it was important to remember that in the case at hand the dispute was between the union and the employer and added:

"The definition of industrial dispute contemplates that a

dispute may arise between one employee and his employer but

it may doubted whether such a dispute could arise over the

dismissal of the employee after the employment was

terminated for the reason that the disputant would no longer

be an employee."

26. Although I have referred to Plumrose and Slonim v Fellows at some length, it seems to me, with respect to those who think otherwise, that neither case is of much assistance in determining the intention of the Tasmanian Parliament by the enactment of the definitions of "industrial matter" and "industrial dispute". A footnote to Plumrose and Slonim v Fellows was provided by the Parliament by the enactment of the Industrial Relations (Further Amendment) Act 1983 (Vic) which added to the definition of "industrial dispute" the words, "and a dispute arising from the dismissal or threatened dismissal from his employment of an employee."

27. Counsel for the appellant provided the court with a copy of Robe River Iron Associates v Association of Draughting, Supervisory and Technical Employees of Western Australia (1987) 68 WAIG 11. The issue in that case was whether the Industrial Commissioner had jurisdiction to award a sum of money to a dismissed employee in circumstances where reinstatement was not an option. It needs to be considered later with respect to this issue but the report contains references to a number of earlier decisions of the Court of Arbitration constituted under the Industrial Arbitration Act 1912 (WA). The passages quoted from those earlier cases all proceed on the basis that a dispute will not constitute an industrial matter unless that dispute is between a union and an employer even though it might concern a single employee only. Counsel for the appellant relied upon these cases to support the fundamental proposition in his submission. In my opinion they do not do so because at the relevant times the Industrial Arbitration Act 1912 (WA) defined an industrial dispute to mean:

"A dispute in relation to industrial matters arising between

an employer or industrial union or association of employers

on the one part and an industrial union or association of

workers on the other part, and includes any dispute arising

out of an industrial agreement and any disagreement,

howsoever originating, between an industrial union or

association formed or existing for the protection of the

interests of workers in any industry and an employer or

industrial union or association of employers in relation to

any industrial matter connected with any workers engaged in

that industry or in any related industry; ..."

There followed a definition of "industrial matters" not too dissimilar from the definition of that expression provided in the Tasmanian Act. Thus, at the time the cases quoted in the Robe River case were decided, the Western Australian Parliament had prescribed that a dispute between a single employee and his employer did not fall within the definition of industrial dispute. That definition was shortened by the Industrial Arbitration (No 2) Act 1963 (WA) but remained to the same effect namely:

"'Industrial dispute' means a dispute as to industrial

matters between a union or association of workers on the one

hand and an employer or a union or association of employers

on the other hand."

28. By the time the Robe River case came before the Western Australian Industrial Appeal Court, the Industrial Arbitration Act 1979 (WA) had been passed. By this Act, the Commission was given jurisdiction over all industrial matters but there was no definition of industrial dispute. However, the original concept of limiting direct employee access to the Commission was retained. Section 29(1) of the 1979 Act provided that an industrial matter "may be referred to the Commission by an employer, union or association, or the Attorney-General." Subsection (2) specifically provided that a claim by an employee that (inter alia) he had been unfairly dismissed from his employment may be referred to the Commission by that employee.

29. Counsel referred us to the South Australian Full Court decision of R v The Industrial Commission of South Australia; ex parte Petersville Limited (1978) 18 SASR 356. The relevant legislation was the Industrial Conciliation and Arbitration Act 1972-1975 (SA). Bray CJ said at 357 that he found it unnecessary to decide whether an industrial matter could come into existence or an industrial dispute could arise between a former employer and a former employee after the contracts of employment had been terminated. However, he did express the view (obiter) that the former could not exist and the latter could not arise in such a circumstance. He based his conclusion on the words used by the Parliament of South Australia to enact definitions of "industrial dispute" and "industrial matter". These definitions are quite different from those enacted by the Industrial Relations Act 1984 (Tas), s3(1). Zelling J also found it unnecessary to decide whether an "industrial matter" and/or "industrial dispute" could come into existence after the contract of employment had been terminated but expressed the view also (obiter) that they could do so after termination of the contract of employment. In reaching that view his Honour relied heavily on the expression "a matter ... relating to work done or to be done ..." in the definition of "industrial matter". That expression is not to be found in the relevant parts of the Tasmanian legislation. King J (as he then was) observed at 379 (obiter) that a claim to impose obligations on an employer after the contract of employment had come to an end does not mean that the resultant dispute does not relate to an industrial matter but added, "(i)f there is a significant separation of time or circumstance between the cessation of the employment and the time for the performance of the obligation sought to be imposed, the subject matter of the claim may be too remote to be regarded as an industrial matter."

30. It is not necessary to survey any of the other authorities to which the court was referred on this point. As I have said, each turns upon the statute that the court was called upon to construe. The differences between each are marked. All States of Australia other than Tasmania now have specific legislative provision giving industrial courts and tribunals jurisdiction over claims of unfair dismissal. The only reference to such jurisdiction in this State is the oblique reference in the definition of "industrial dispute" to a dispute relating to "the engagement, dismissal, or reinstatement of any particular employee or class of employees."

31. The Industrial Relations Act 1984 creates an Industrial Commission. By virtue of s13, a Commissioner has and may exercise all the powers of the Commission. Section 15(1)(d) requires the President to "convene hearings, and summon conferences, for settling industrial disputes and appoint Commissioners to preside over those hearings and conferences." Section 19(2)(c) confers jurisdiction on the Commission to "conduct hearings and conferences for settling industrial disputes".

32. The Act therefore, clearly contemplates two types of proceedings both of which may be used for the purpose of settling or preventing industrial disputes. With respect to the hearing procedure, s29(1) provides that an organisation, an employer or an employee may apply to the President for a hearing in respect of an industrial dispute that has arisen or the applicant considers likely to arise. The right of an employee to apply for such a hearing was not conferred until the amendment effected by Act No 59 of 1992, s20. By subs(2) the President is bound to convene a requested hearing, "unless he believes it would not assist the settlement or prevention of the relevant industrial dispute." Ex-employees have no right to apply for a hearing which the President must arrange unless he holds a positive belief that such a hearing would not assist the settlement or prevention of the relevant industrial dispute.

33. Section 30(1) confers a power on the President to summon any person to a conference for the purpose of preventing or settling an industrial dispute in cases where the President is of the opinion that such a summons is necessary or desirable for the purpose stated in the subsection. Subsection (2) provides that if the Minister is of the opinion such a summons is necessary for the same purpose, he may direct the President to issue one. Subsection (3) provides that if the President is notified by an employer or an organisation of a dispute or likely dispute and if he thinks it necessary or desirable for the stated purpose, he shall issue a summons.

34. The distinction between a conference and a hearing is hard to detect for s31(1) applies to both proceedings. It provides:

"31 (1) Subject to this section, where the Commissioner

presiding at ... a conference under section 30 is of the

opinion, after affording the parties at the ... conference a

reasonable opportunity to make any relevant submissions and

considering the views expressed at the ... conference, that

anything should be required to be done, or that any action

should be required to be taken, for the purpose of

preventing or settling the industrial dispute in respect of

which the ... conference was convened, that Commissioner

may, by order in writing, direct that that thing is to be

done or that action is to be taken."

35. According to Breen, Creighton and Stewart Labour Law, an Introduction, at 13, the concept of settlement of industrial disputes by way of compulsory conciliation and arbitration has been a feature of Australian labour law for the past one hundred years. It arrived in Tasmania by Act No 8 of 1950 which amended the Wages Board Act 1920 to introduce definitions of industrial disputes and industrial matters in the following terms:

"'industrial dispute' means any dispute in relation to

industrial matters and includes any threatened or impending,

or probable industrial dispute;

'industrial matters' means all matters affecting or relating

to the relations of employers and employees in any trade, or

their respective rights, privileges, duties, or

obligations."

36. The same Act gave the Minister power to summon a person to a conference if in his opinion, it was desirable to do so for the purpose of preventing or settling an industrial dispute. However, it was not until Act No 67 of 1960 that the person presiding over such a conference was given any powers other than those he or she might possess by way of persuasion. The Wages Board Act 1960 introduced a new s78 into the Wages Board Act 1920. That provision, apart from some inconsequential differences, is in the same terms as the Industrial Relations Act 1984, s31(1) so far as that subsection concerns conferences. The Wages Board Act 1920, s78 was re-enacted in the Industrial Relations Act 1975: see DivIV - compulsory conferences.

37. The position remained thus until the introduction of the present provisions by the Industrial Relations Act 1984. This Act introduced the concept of hearings in addition to conferences for the purpose of settling industrial disputes but I am unable to detect anything in the words of the Act to indicate any practical difference between the function and the powers of the Commission in a conference and the function and powers of the Commission in a hearing.

38. A study of the development of the statute law in this State with respect to industrial relations shows a similar but slower development to that which has occurred in other jurisdictions in Australia. There has been a widening of the scope of matters that fall within the jurisdiction of industrial tribunals and an increase in the powers of those tribunals.

39. The Industrial Relations Act 1975 (Tas) considerably expanded the definition of industrial disputes by enacting for the first time, that it "includes a dispute relating to (inter alia) the engagement, dismissal, or reinstatement of any particular employee ...". Unlike the Victorian legislation dealt with in Slonim v Fellows (supra) and Plumrose (supra) and unlike the Western Australian legislation considered in the Robe River case, the Tasmanian definition did not, and does not as presently enacted, prescribe the ambit of an industrial dispute by reference to the parties to it. Originally it was entirely up to the Minister whether a compulsory conference was called or not. By the Industrial Relations Act 1975, s50(2) it was enacted that where the Minister was notified by "an employer or an organisation of employees" (not an employee or employees), of an industrial dispute, he shall, provided he holds the opinion prescribed by the subsection, summon persons to a conference. In any other case, the Minister may issue such summons if he thinks it desirable for the purpose of preventing or settling industrial disputes. The Industrial Relations Act 1984, s30(3) re-enacted the substance of the 1975 Act, s50(2) but substituted the President for the Minister and additionally conferred power in the case of notification that an industrial dispute IS LIKELY TO ARISE (emphasis added).

40. The Industrial Relations Act 1984 however, provided an important shift in emphasis by the enactment of s29(1). By that section, employers, organisations and, by amending Act No 59/1992, employees are entitled to apply to the President for a hearing. By subs(2) the President is bound to grant the application unless he believes it would not assist in the settlement or prevention of the notified dispute or likely dispute.

41. Former employees had and still have no more status than any other member of the public to initiate a hearing or conference: it is a matter for the opinion of the President pursuant to s30(1). Between 1950 and 1975, employers and organisations of employees were in the same position in this respect as any other member of the public. They were not given the right to apply to the Minister until the passing of the Industrial Relations Act 1975 but even so, the holding of a conference was dependent upon the Minister forming the prescribed positive opinion.

42. The purpose of this somewhat tedious survey of the legislative development, is to show that there has been a gradual encroachment by industrial tribunals over matters that were formerly only within the province of the courts administering the common law. As Gibbs CJ said of the Victorian Act in Slonim v Fellows at 510, "... it is apparent that the purpose of the Act is to give the Boards and the Commission established under the Act wide powers to affect the common law rights of employers in cases where an industrial dispute has arisen or an industrial matter exists."

43. With respect to the present dispute it could not be said that it related to an industrial matter as defined by the Act, s3(1), for at the time it arose, the employer/employee relationship had been severed and therefore whatever was the nature of the dispute it did not pertain to the relationship of employer and employee. However, I see no reason why the words "dispute relating to the dismissal of a particular employee" should not be given their ordinary and natural meaning and thus, include a dispute between an employer and an employee over the latter's dismissal. Whatever may have been the generally accepted meaning of the expression "industrial dispute", there is nothing in the legislative prescription just set out that requires those words to be read down so that a dispute relating to the dismissal of a particular employee means but only one which involves an organisation of employees and/or industrial disharmony. In their ordinary meaning, the words used for the legislative definition include a dispute between a former employee and his or her former employer.

44. A dispute over dismissal cannot arise until there has been a dismissal and there is no time limit to fetter the exercise of jurisdiction. The fetter reposes with the President. A dispute between a former employee and a former employer over the latter's dismissal of the former would not result in a conference being held unless an application was made to the President by the employer (which would be unlikely) or the President formed the opinion that a conference was necessary or desirable for the purpose of settling that dispute. One would imagine that in many cases, such disputes, especially those of some antiquity, would not result in the President forming the requisite opinion.

45. Accordingly, I would reject the submission of counsel for the appellant with respect to ground 1 as he put it viz, that apart from anything else, a dispute that arose twelve months ago between a former employer and a former employee over the latter's dismissal, which did not cause any other industrial disharmony and which did not involve an employee organisation was not an industrial dispute within the meaning of the Act. In my view such a dispute could be an industrial dispute. Whether there was an industrial dispute in this case is a different matter and ground 1 is a complaint that the learned judge at first instance erred in finding that an industrial dispute had arisen in this case. With great respect to his Honour, I think that there was insufficient material before him upon which to reach that conclusion. As I have said, the second respondent only had jurisdiction to make orders for the purpose of settling the dispute in respect of which the conference had been convened viz, the one about which the President formed the requisite opinion and issued the summons. There was virtually no evidence about this dispute before the learned judge at first instance. The respondent claimed against the appellant money equivalent to two years' salary and the use of a car for two years together with superannuation contributions, telephone allowance and long service leave entitlements. Although there was no express finding to this effect, it appears to have been accepted that the basis of the claim was that the first respondent had been unfairly dismissed from his employment by the appellant. In evidence before the learned judge was a letter dated 15 July 1994 from Ritchie Parker Alfred Green and Co, solicitors to the first respondent, to Zeeman Kable and Page, solicitors for the appellant setting out particulars of the claim. That letter contains this paragraph:

"More particularly, he will be seeking a number of remedies

from the Commission. The first, is a declaration that your

client was not entitled to dismiss our client for misconduct

and that, accordingly, his dismissal was harsh, unjust and

unfair."

46. As this letter did not go to the President, its status is unclear but it serves to illustrate the importance and significance of s30(1). If the only information that the President had was that there was a claim for money and other benefits and that the claim was based on an assertion that there had been an unfair dismissal, it is difficult to see how he could have formed the opinion that it was necessary or desirable to issue a summons and arrange a conference to settle the dispute. One would imagine that it would have been necessary for him to at least put the claims and assertions to the appellant and to see what its response was before he could decide whether a conference was necessary or desirable for the stated purpose. The learned judge at first instance rightly issued prohibition because the conference had not been validly convened. With the benefit that attends appellate hindsight I think it can be said that the learned judge should have left the matter there and not proceeded to deal further with the order nisi. The proceedings had to be stopped. Their resumption depends upon the President forming the necessary opinion and issuing the summons. If he does not form that opinion that is the end of the matter. If he does form that opinion and issues a summons, material will be put before the Commissioner conducting that conference upon which this Court could, if later called upon to do so, determine whether an industrial dispute existed. That would be the appropriate time to consider whether further prerogative relief ought to be granted.

47. However, the learned judge did proceed further and did make the order from which this appeal is brought. The first respondent's claim was for monetary compensation for unfair dismissal. Inferentially, the appellant has refused to meet it. This is the dispute. Reinstatement or re-employment is not in dispute for in the letter from the first respondent's solicitor to the appellant's solicitor the first respondent expressly excluded re-instatement from his claim. Thus, if, as is argued by the notice of appeal, ground 2, there is no jurisdiction to award monetary compensation when reinstatement is not in dispute, the appeal should be allowed.

48. This question of monetary compensation was considered in the Robe River case. Although there is a difference between the statutory provisions applicable to that case and those applicable to the present case, that difference does not affect the reasoning of the judgments of the court. I hope I do not do the members of that court an injustice if I summarise that reasoning as follows:

1 there is no express statutory power to award monetary

compensation for unfair dismissal;

2 there is statutory power to award reinstatement or

re-employment;

3 if it is determined that reinstatement or re-employment

should not be ordered, the dispute, viz over the dismissal,

is settled and the issue of monetary compensation does not

arise;

4 to hold otherwise, would be to hold that compensation,

unrelated to the contract of employment, could be awarded

and that would require clear statutory expression.

49. That reasoning is applicable to the definition of "industrial dispute" in the Industrial Relations Act s3(1) for inferentially there is a power to order reinstatement, but it was submitted in effect, on the appeal and before the learned judge at first instance, that such clear statutory expression is to be found in the Act, s70(1), introduced by Act No 59/1992, s47. Relevantly it provides:

"An appeal may be made to a Full Bench against

(a) ...

(b) an order made by a Commissioner under section 31

directing that an amount be paid or that no amount be paid

to a person who has been found by the Commissioner to have

been unfairly dismissed in circumstances where reinstatement

or re-employment is not possible or practical or to a person

who has been retrenched or made redundant involuntarily by

(i) the organisation of which the person is a member or

that person; or

(ii) the employer or organisation of which the employer is

a member."

Section 70(1)(c) and (d) also provide rights of appeal against orders made pursuant to s31 in the following terms:

"(c) an order made by a Commissioner under section 31

directing that a person be reinstated or re-employment by

the organisation of which that person is a member or the

employer, employer organisation or that person; and

(d) and order made by a Commissioner under section 31

directing that a person not be reinstated or re-employed by

that person or the organisation of which that person is a

member."

50. Prior to Act 59 of 1992 there was no appeal from a Commissioner's order made in the exercise of the jurisdiction conferred by s31(1) but curiously, the introduced provisions do not confer a right of appeal against any order made by the Commissioner pursuant to that subsection; only those specified by s70(1)(b), (c) and (d).

51. The Acts Interpretation Act 1931, s8(1) requires the Court to read and construe the amending Act with and subject to the provisions of the amended Act and, for the reasons expressed by the learned judge at first instance, such reading and construction must result in the conclusion that the powers conferred on the Commission by s31(1) include those in respect of which a right of appeal is conferred by the amending legislation. One such power is to make an order for the payment of money to a person who has "been found by the Commissioner to have been unfairly dismissed in circumstances where reinstatement or re-employment is not possible or practical or to a person who has been retrenched or made redundant involuntarily." However, the amending Act does not otherwise affect the applicability of the reasoning in the Robe River case which I have endeavoured to set out above in summary fashion.

52. As the first respondent has expressly excluded reinstatement or re-employment from the ambit of his dispute, the Commissioner cannot make any finding about whether reinstatement or re-employment is possible or practical and thus the condition precedent for ordering money to be paid cannot arise. Although an "industrial dispute" may arise between an ex-employee and an ex-employer over the dismissal of the former without that dispute causing industrial disharmony or involving an employee organisation, the Commission has no power to order payment of money to that ex-employee pursuant to the Act s31(1) unless the reinstatement of that person is in issue and found not to be practical or impossible.

53. Accordingly, it is my respectful opinion that the learned judge at first instance fell into error in failing to issue a writ prohibiting Industrial Commissioner Gozzi from "entertaining any application for compensation or damages" by the first respondent against the appellant. I would allow the appeal and set aside that part of the order that provides that the application otherwise be dismissed and in lieu thereof order that a writ of prohibition be issued directed to the second respondent prohibiting him from entertaining any application for compensation or damages in proceedings T5080 of 1994.

ZEEMAN J On 27 July 1994 Crawford J, on the application of the appellant, made a general order to show cause directed to the second respondent, a Commissioner of the Tasmanian Industrial Commission. The order required the second respondent to show cause why there should not issue a writ of prohibition directed to him prohibiting him from further proceeding to conduct a conference pursuant to the Industrial Relations Act ("the Act"), s30 in proceedings T5080 of 1984 or prohibiting him from entertaining any application for compensation or damages or why there should not be granted some other relief.

2. The grounds upon which the relief was sought are specified in the order nisi as follows:

"a) That the Commissioner has no jurisdiction to preside at

a conference pursuant to Section 30(1) of the Industrial

Relations Act 1984 (the Act) in that the President has not

summoned any persons to attend such conference at a time and

place specified in the summons pursuant to Section 30(1) of

the Act;

b) That the Commissioner has no jurisdiction to preside at a

conference pursuant to Section 30(1) of the Act in that the

subject matter of the conference is not an industrial

dispute within the meaning of the Act;

c) The Commissioner has no jurisdiction to entertain any

application by the Applicant in respect of harsh, unjust or

unfair dismissal as no such jurisdiction is conferred by the

provisions of the Industrial Relations Act 1984;

d) Alternatively, if the Commissioner does have jurisdiction

to entertain an application in respect of harsh unjust or

unfair dismissal, then the Commissioner may have

jurisdiction to order reinstatement or re-employment but has

no jurisdiction to award damages or monetary compensation in

lieu of an order for reinstatement or an order for

re-employment.

e) Alternatively, as the applicant in the proceedings before

the Commission does not seek any order for reinstatement or

re-employment, the Commissioner has no jurisdiction."

3. It will be seen from those grounds that they raise two essential issues, namely whether the subject matter of the conference referred to constituted an "industrial dispute" within the meaning of the Act and whether the conference had been validly convened. For reasons which will become apparent, the appellant should also have applied that the order nisi be directed to the President of the Commission because the second of the issues raised directly called into question whether he had jurisdiction to convene a conference at all. It would have been appropriate to seek certiorari to quash his summoning of the parties to attend a conference and, in the event that he had not done so effectively, prohibition to prohibit him from doing so thereafter. The failure of the appellant to seek relief against the President has created some difficulties.

4. The return of the order nisi came before Cox J who on 25 October 1994 (inter alia) ordered as follows:

"1 THAT a writ of prohibition be issued directed to the

Respondent prohibiting him from further proceeding to

conduct a conference pursuant to Section 30 of the

Industrial Relations Act 1984 in proceedings T5080 of 1984

unless and until the President of the Industrial Relations

Commission pursuant to Section 30(1) of the Industrial

Relations Act 1984 summons persons to attend such a

conference at a time and place specified in the summons

pursuant to Section 30 of that Act;

2 THAT the application otherwise be dismissed;"

5. I assume that the second of those orders was intended to be an order that otherwise the order nisi be discharged. I have some difficulty with the form of relief granted by the learned primary judge, although it may be assumed that the form is explained by the appellant effectively having sought to challenge the power of the President to summon the parties to a conference in the future without seeking any relief against him. The learned primary judge's conclusions were to the effect that the second respondent had no jurisdiction to conduct a conference in relation to the alleged dispute between the appellant and the first respondent but that he, or some other Commissioner, might acquire such jurisdiction thereafter if the President were to properly summon the parties to attend such a conference. In those circumstances I consider that unconditional prohibition was appropriate and that the future taking of steps by a third party should not have been anticipated or provided for. Indeed it may be doubted whether there is jurisdiction to grant prohibition in this form. It might require that the second respondent determine as a matter of law whether any conference thereafter convened had been validly convened in the manner provided for by s30. A person to whom a writ of prohibition is directed should not be put in a position whereby he must determine facts and apply the law to them before he knows whether the writ operates so as to prohibit him from exercising some jurisdiction. The object which was sought to be achieved by the orders could have been achieved by a sufficiently narrow definition of what it was as to which prohibition was granted.

6. Had the appellant sought relief against the President in the manner I have mentioned the legal conclusions reached by the learned primary judge could have been given effect to by prohibiting the second respondent from proceeding with the conference actually convened, by quashing the steps taken by the President by way of convening it and by refusing to prohibit the President from summoning a further conference concerning the dispute.

7. The appellant has appealed against the second of the orders made by the learned primary judge. The first respondent has presented argument on the hearing of the appeal. The second respondent appeared by counsel who informed the Court that he did not seek to be heard on the appeal and would abide the order of the Court. Notwithstanding my views as to the inappropriateness of the orders of the learned primary judge from a procedural point of view, that is not a matter raised by any ground of appeal. The grounds raise a question of important principle concerning the jurisdiction of Commissioners, namely whether a dispute of the type existing between the appellant and the first respondent constitutes an industrial dispute within the meaning of the Act so as to give Commissioners jurisdiction over it. The learned primary judge held that it does. Notwithstanding my reservations about the way in which the learned primary judge gave effect to his conclusions I am persuaded that the validity of those conclusions should be examined.

8. I consider it sufficient to limit my consideration of this appeal to the issues raised by ground 1. Upholding this ground makes it unnecessary to examine the other grounds of appeal. The first ground of appeal is as follows:

"1 That the Learned Trial Judge erred in law in finding that

there was between the prosecutor and Anthony John Gurr an

'industrial dispute' within the meaning of Section 30 (1) of

the Industrial Relations Act 1984."

9. The Act, s29 and, so far as is relevant, s30, which are the provisions said to give rise to the jurisdiction which the second respondent purported to exercise, provide as follows:

"29 (1) An organisation, employer or employee may apply to

the President for a hearing before a Commissioner in respect

of an industrial dispute that has arisen or the applicant

considers is likely to arise.

(2) Where an application under subsection (1) has been made

to the President, he shall, unless he believes that it would

not assist the settlement or prevention of the relevant

industrial dispute, convene a hearing before a Commissioner.

(3) Where the President convenes a hearing under subsection

(2), he shall cause notice of the time and place of the

hearing to be given to a person who, or an organization

which, he considers will be able to assist in the settlement

or prevention of the relevant industrial dispute.

30 (1) The President may, whenever in his opinion it is

necessary or desirable for the purpose of preventing,

settling, or attempting to prevent or settle, an industrial

dispute, summon any person to attend, at a time and place

specified in the summons, at a conference presided over by

the President or by such other Commissioner as the President

directs.

...

(4) A summons under subsection (1) may be given by notice in

writing signed by the President or by any other means the

President considers appropriate.

...

(8) A conference under this section shall be held in

10. The powers which may be exercised by a Commissioner on a conference under s30 are conferred by s31 which, so far as is relevant, provides as follows:

"31 (1) Subject to this section, where the Commissioner

presiding at .... a conference under section 30 is of the

opinion, after affording the parties at the .... conference

a reasonable opportunity to make any relevant submissions

and considering the views expressed at the .... conference,

that anything should be required to be done, or that any

action should be required to be taken, for the purpose of

preventing or settling the industrial dispute in respect of

which the .... conference was convened, that Commissioner

may, by order in writing, direct that that thing is to be

done or that action is to be taken.

(2) A Commissioner shall not make an order under this

section

(a) that is inconsistent with the provisions of any Act

dealing with the same subject-matter; or

(b) that makes an award or that varies or creates a

provision of an award."

11. The first respondent had been in the employ of the appellant for a period of almost fifteen years when, on 11 May 1993, the appellant dismissed him from that employment. The material before the learned primary judge requires that it be inferred that in late May 1994 solicitors acting for the first respondent wrote to the President of the Tasmanian Industrial Commission requesting that a conference be convened for the purpose of settling an industrial dispute said to have arisen by reason of the alleged unfair termination of the first respondent's employment by the appellant. The letter was not in evidence. The learned primary judge referred to the first respondent having applied to the President pursuant to the Act, s29 but it is clear that what the first respondent sought was that the President exercise the powers conferred upon him by s30(1) in relation to the dispute by way of summoning the parties to attend a conference before a Commissioner. Subsequent observations made by the learned primary judge in the course of his reasons make it clear that his Honour proceeded upon that basis and that his reference to s29 was intended to be a reference to s30.

12. When the President received the letter from the solicitors acting for the first respondent various procedural steps were taken. On 1 June 1994 the President sent a memorandum to the second respondent attaching "an application ... pursuant to Section 30(2) of the Act (the parties were agreed that that was intended to be a reference to s30(1)) for a conference to be convened for the purpose of settling an industrial dispute, relating to an alleged unfair dismissal between" the first respondent and the appellant. The memorandum concluded as follows: "Pursuant to Section 15(1)(d) of the Act, I hereby assign the matter to you for hearing and determination." On 7 June 1994 the Registrar of the Commission forwarded a notice of hearing to the parties by which they were advised that a conference would be held pursuant to the Act, s30 at the Magistrates' Court at George Town on 23 June 1994 "for the purpose of settling an industrial dispute between (the first respondent) and (the appellant) re alleged unfair termination".

13. The fact that the letter from the first respondent's solicitor to the President was not before the learned primary judge might be thought to have created some difficulties because if the second respondent had any power to make any order under s31(1) it was to make an order "for the purpose of preventing or settling the industrial dispute in respect of which the ... conference was convened". There was no direct evidence before the learned primary judge as to what that purported industrial dispute might have been. However the learned primary judge proceeded upon the basis that the first respondent asserted that he been unfairly dismissed from his employment with the appellant; that he was not seeking to be reinstated in his employment because he thought it unlikely that a harmonious working relationship could be restored; that he was demanding that the appellant pay him a substantial sum of money and that accumulated superannuation be released; that the unfairness of the dismissal was relied upon by the first respondent as the justification for orders that the appellant pay him such amount and for the release of such accumulated superannuation; that he was demanding payment for long service leave on the basis that the appellant was not entitled to dismiss him for misconduct; and that the appellant had declined to accede to the first respondent's demands.

14. There was material in the nature of particulars furnished by the first respondent's solicitors to the appellant's solicitors which indicated that that was the nature of the first respondent's claim. I have some reservations as to whether it was appropriate to rely upon that material to identify the nature of the dispute. However, the learned primary judge did so identify it and no party seeks to challenge that. In those circumstances I consider it appropriate that the present appeal be determined upon the basis that the dispute identified by the learned primary judge in his reasons for judgment was the dispute which was brought to the attention of the President by the first respondent's solicitors, that that was the dispute as to which he purported to form an opinion in the terms of s30(1) and that that was the dispute in respect of which the conference was convened.

15. That part of the dispute which concerns the payment for long service leave may be ignored. The reference to misconduct in this context is difficult to understand. I assume that it was intended to be a reference to the Long Service Leave Act 1976, s8(3)(d) whereby an employee who has completed five years', but who has not completed ten years', continuous employment is entitled to receive long service leave if the "employment is terminated by his employer for any reason other than the serious and wilful misconduct of the employee". As the first respondent had completed more than ten years' employment at the time of his dismissal, he was entitled, by virtue of s8(2), to payment of long service leave irrespective of any misconduct on his part. Nevertheless this part of the dispute may be ignored because on any view it could not have been a dispute as to which the second respondent had any jurisdiction. The Long Service Leave Act, ss13 and 14 provides the exclusive mechanism for the determination of disputes as to long service leave. The application of the principle encapsulated by the maxim generalia specialibus non derogant alone is sufficient to require that conclusion. A further reason for coming to that conclusion is that the primary meaning of "industrial dispute", as it is defined by the Act, is a dispute relating to an "industrial matter". Paragraph (d) of the definition of "industrial matter" expressly excludes therefrom "the entitlement to, the granting of, and the amount of payment in respect of, long service leave".

16. A number of procedural irregularities attended the convening of the conference. It appears to have been convened without any regard to the express provisions of s30(1) and (4). Those irregularities led to the learned primary judge granting prohibition, but limited in the manner indicated. In addition to the procedural defects identified by the learned primary judge, it may be observed that the notice of the conference which was served on the appellant (and which the learned primary judge held to be an ineffective method of convening a conference) was singularly uninformative. It is implicit from s30 that a conference under that section is intended to be a conference at which the parties attempt to settle the dispute which the President has found to exist or which he apprehends may arise. A Commissioner presiding at such a conference may only make an order if it is made "for the purpose of preventing or settling the dispute in respect of which" the conference was convened. An absence of precise notice as to the nature of the dispute found to exist or apprehended by the President (which must rely on the findings made by the President) is a denial of natural justice because it means that the parties have no means of ascertaining the proper subject matter of the conference or the ambit of the jurisdiction of the Commissioner presiding at the conference.

17. The findings made by the President under s30(1) define and limit the jurisdiction of the Commissioner presiding at a conference. That jurisdiction is incapable of being enlarged by a party to a dispute defining the dispute in a way which differs from that found by the President. It appears from the transcript of the proceedings before the second respondent that he did not appreciate that. The appellant was informed of no more than the President had determined that there be a conference concerning a dispute between the appellant and the first respondent "re alleged unfair termination". The appellant should have been given precise notice as to the dispute which the President had found to exist. A copy of the letter sent to the President on behalf of the first respondent, together with an intimation that the President found the dispute therein identified to exist, probably would have been sufficient. It appears that neither the existence nor the content of that letter was disclosed to the appellant either at or before the conference. I make these comments because they may be of some assistance to Commissioners in the future exercise of their jurisdiction

18. The second respondent made it clear that he considered that the dispute amounted to an industrial dispute for the purposes of the Act and that he had jurisdiction to give a direction pursuant to the Act, s31(1) that the appellant pay the first respondent a sum of money in settlement of the dispute. The learned primary judge, having identified the dispute in the way I have stated, held that the dispute was an industrial dispute for the purposes of the Act. It is fundamental to the exercise of the powers conferred upon the President by s30 that he may exercise them not in respect of any actual or apprehended dispute but only if such dispute is an industrial dispute within the meaning of the Act. If the President purports to exercise those powers in respect of a dispute which is not an industrial dispute then he acts without jurisdiction. A summons issued by him when he does not possess jurisdiction to issue it cannot operate so as to confer jurisdiction upon a Commissioner under s31(1). In any event the jurisdiction of a Commissioner to make orders under s31(1) is limited to making orders which concern the industrial dispute in respect of which the conference was convened.

19. Something more needs to be said about the nature of the dispute said to have arisen. Counsel for the first respondent submitted that his client's case before the second respondent was not only that he had been unfairly dismissed but also that he had been unlawfully dismissed, he not having been given any notice of intention of termination or payment in lieu of such notice (see the Act, s47(2); Hutt v The Cascade Brewery Co Ltd A99/1991 (available on SCALE) at 9-10). That submission assumes that by raising claims before the second respondent it was open to the first respondent to enlarge the ambit of the dispute the subject of the conference. That assumption is incorrect. The effect of the learned primary judge's findings of fact is that that dispute was one which concerned the appellant's refusal to compensate the first respondent for his unfair dismissal by the payment of money and the early release of accumulated superannuation. The appellant was unable to rely on any law or contract which gave him a right to be so compensated. What he sought was not the enforcement of a legal right but the conferral upon him of a right. The learned primary judge did not find, and there was no material before him which would have justified a finding, that the dispute concerned a failure of the appellant to pay the first respondent that to which he was legally entitled. This appeal is to be determined upon the basis that the claim made by the first respondent was to be paid a sum of money to which he had no legal entitlement absent an order of the second respondent which created such an entitlement and that the dispute concerned that claim. Attention must remain focused on the identified dispute (cf R v Portus; ex parte City of Perth [1973] HCA 64; (1973) 129 CLR 312 per Stephen J at 328).

20. Fundamental to this appeal is the question whether, as a matter of law, a dispute of the nature of that found by the learned primary judge to have existed, is capable of being an industrial dispute for the purposes of the Act. Ground 1 asserts that it is not. That ground requires a consideration of the following definitions which appear in the Act, s3(1):

"'industrial dispute' means a dispute relating to an

industrial matter, and includes a dispute relating to

(a) the engagement, dismissal, or reinstatement of any

particular employee or class of employees;

(b) the entering into, execution, or termination of any

contract for services in circumstances that affect, or may

affect, an employee in, or in relation to, his work; or

(c) any question relating to the demarcation of functions of

employees or classes of employees

but does not include a dispute relating to any matter

arising from a registered enterprise agreement if that

agreement includes a grievance procedure which provides for

private arbitration;

'industrial matter' means any matter pertaining to the

relations of employers and employees and, without limiting

the generality of the foregoing, includes

(a) a matter relating to

(i) rates of remuneration, whether as wages rates or

piecework rates, or variations of those rates or additions

to those rates, or extra or special payments;

(ii) hours or days of work, or variations of those hours

or days, or additions to those hours or days;

(iii) the granting of leave from work;

(iv) the privileges, rights, and functions of employers

and employees;

(v) the mode, terms, or conditions of employment;

(vi) the relations between employers and employees;

(vii) the employment or non-employment of persons of a

particular sex or age; or

(viii) the determination or definition of the functions of

any employees or class of employees; and

(b) the manner in which any rates of remuneration are to be

fixed."

21. The question is whether a dispute which arises when a former employer declines to accede to a demand by a dismissed former employee for payment of a sum of money consequent upon the dismissal is capable of amounting to an industrial dispute within the meaning of the Act when the demand is made, not in reliance upon any contractual or other legal right, but in reliance upon the alleged unfairness (as distinct from unlawfulness) of the dismissal and there is no demand that he be reinstated or re-employed.

22. I observe that in some respects the primary meaning of "industrial dispute", which relies on the defined meaning of "industrial matter", is tautologous. For example, "industrial matter" inter alia is defined as meaning "any matter pertaining to the relations of employers and employees, and, without limiting the generality of the foregoing, includes ... a matter relating to .... the relations between employers and employees".

23. I do not accept the submission made by counsel for the appellant that the presence, in the definition of "industrial dispute", of the expressions "means" and "includes" creates any difficulty. Counsel relied upon the view expressed in Pearce and Geddes Statutory Interpretation in Australia 3rd edn (1988) par6.39 where the learned authors state that "the phrase 'means and includes' ought to be avoided by draftsmen and interpreters of the legislation alike" because they "are incompatible with one another - one limits and the other extends". I accept that where the phrase is used there is such an incompatibility and that it is capable of giving rise to difficult questions of construction but the short answer to the submission is that the expression "means and includes" does not appear in the definition of the expression "industrial dispute". The Act does not define that expression in terms where it both means and includes the same things. The effect of the definition is that the primary meaning of "industrial dispute" is a dispute relating to an "industrial matter" and that that primary meaning is enlarged by the inclusion of disputes relating to the matters specified in pars(a), (b) and (c) of the definition.

24. The use of the word "includes" does not cut down the full primary meaning of "industrial dispute". It operates so as to include within the definition some matters not within the primary meaning (see Robinson v Local Board of Barton-Eccles (1883) 8 App Cas 798 at 801 and R v McN (1963) 63 SR (NSW) 186 at 187) although the context may require that the primary meaning be used to limit the ambit of the matters said to be included (eg, Commissioners of Customs and Excise v Savoy Hotel Ltd (1966) 1 WLR 948). The extent to which the primary meaning is enlarged is a matter that requires further consideration.

25. In the first instance it is necessary to consider whether the dispute referred to the second respondent falls within the primary meaning given to "industrial dispute", namely whether it is a dispute relating to an "industrial matter" as that expression is defined by the Act. Considerable guidance on that question is to be found in R v Staples; Ex parte Australian Telecommunications Commission [1980] HCA 27; (1980) 143 CLR 614. In that case the High Court was required to consider a submission that the jurisdiction conferred on the Commonwealth Conciliation and Arbitration Commission by the Telecommunications Act 1975 (Cth), s67 to "prevent or settle ... industrial disputes" " was to be construed so as to confer upon the Commission jurisdiction to order the reinstatement of a dismissed former employee on the application of that employee. The submission relied on that part of the statutory definition of "industrial dispute" by which it was defined so as to include a dispute as to an "industrial matter", which expression was defined by s66 as including "any matter in relation to the salaries, wages, rates of pay or other terms or conditions of service or employment of officers or employees".

26. In dealing with the submission Stephen, Mason and Wilson JJ, in their joint judgment said at 625-627:

"But, with respect to the arguments of both counsel, it

seems to us to be unhelpful to ask the question in the blunt

way in which it has been presented. So to ask it inevitably

challenges the mind to conceive of the unusual case in which

a dispute evincing an industrial character might be brought

to the Commission by an individual disputant. It is not

immediately apparent, for example, why an individual

employee may not raise with the management a question of

safety procedures attending the performance of the work and

find himself in an industrial dispute with his employer on

that question in the event of an unsatisfactory response. A

dispute about safety procedures may threaten repercussions

within the industry. The letter from Mr Morris to Staples

J, by which his dispute was brought to the notice of the

Commission, bore the stamp of novelty, and that not only

because it contained the well known prayer for freedom which

appears in Rabindranath Tagore's Gitanjali. It was novel

both in its purpose and its achievement; at least it appears

to have been so, as the attention of the Court has not been

drawn to any other case in which an individual employee has

successfully invoked the jurisdiction of the Commission in

relation to a dispute between him and his employer. Yet

novelty cannot of itself be a ground for placing the matter

beyond jurisdiction. In our opinion, the proper course is

to focus in all cases on the particular dispute or matter

and to determine whether that dispute or matter falls within

the provisions conferring jurisdiction on the Commission.

The existence of an industrial dispute is a question of

fact, and will depend on the circumstances of the particular

case. If it appears that a lone employee cannot invoke the

jurisdiction of the Commission then we suspect that the

reason is that the limited nature of the dispute or matter

denies to it an industrial character.

...

We would also add, with reference to the earlier discussion

of the possibility of an industrial dispute arising between

a single employee and his employer, that in the

circumstances of this case even if Mr Morris were able to

bring the subject-matter of his dispute within the literal

terms of the definition of 'industrial matter' in s 66, we

would have grave difficulty in drawing a conclusion in

favour of jurisdiction. Notwithstanding that the definition

does not include the word 'industrial', and notwithstanding

the absence of any constitutional considerations occasioned

by reference in other cases to s 51 (xxxv) of the

Constitution, we include to the view that the whole context

of Div 8 requires an 'industry' character to be given to the

concept. It may be true that Mr Morris in January 1979 had

a dispute with his employer over the number of hours that he

was required to work, and that such a dispute might have

satisfied the literal words of the definition of 'industrial

matter' (provided that the word 'employees' were read in the

singular, and subject to a decision that the application of

s 23 of the Acts Interpretation Act was not excluded by the

context), nevertheless there is no suggestion in the

materials before the Court that the dispute had any

implication or likely repercussion or dislocation for the

industry as such so as to give the necessary character to

what would otherwise be no more than a personal dispute."

27. An application of that reasoning suggests a conclusion that the present dispute is not a dispute which is an "industrial dispute" within the primary defined meaning of that term because it does not concern an "industrial matter" as that term is defined. It is not a matter which pertains to the relations of employers and employees because the first respondent is not, and was not at the time that he first made a demand which gave rise to a relevant dispute, an employee of the appellant. He ceased to have that status once he was dismissed (R v Portus; ex parte City of Perth (supra) per Stephen J at 329-330; R v Hamilton Knight; Ex parte The Commonwealth Steamship Owners Association [1952] HCA 38; (1952) 86 CLR 283 per McTiernan J at 301 and per Williams J at 305-306). The dispute does not have an "industry character". A reading of the definition of "industrial matter" as a whole conveys to me that it only encompasses matters which have such a character.

28. The judgment of the High Court in Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia [1987] HCA 63; (1987) 163 CLR 656 at 660-661 provides further support for the proposition that a dispute between a former employer and an ex-employee relating to the dismissal of the ex-employee does not concern the "relations of employers and employees" (which is the term which appears in the definition of "industrial matter" contained in the Act) although a dispute relating to such dismissal which is agitated by or on behalf of remaining employees who have an interest in it does concern such relations.

29. Counsel referred the Court to a number of other cases in which the essential nature of an industrial dispute was considered by the High Court. I have considered them. It must be borne in mind that most of them concerned a consideration of the ambit of the jurisdiction of the former Commonwealth Conciliation and Arbitration Commission by reference to the constitutional prohibition against conferring upon such a body any part of the judicial power of the Commonwealth (R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254 affirmed by the Privy Council sub nom Attorney-General (Commonwealth) v R [1957] HCA 12; (1957) 95 CLR 529). That prohibition either was the basis upon which the reasoning in those cases proceeded or was an ingredient of that reasoning. For that reason it is not possible to apply such reasoning in the present case. Nevertheless the essential industry character of an industrial dispute is accepted in most if not all of those cases. That character has been of the essence of industrial arbitration and conciliation in Australia and was the apparent rationale for the adoption of the Constitution, s51(xxxv) as appears from the history of the debates leading to the adoption of that provision noted in Quick and Garran The Annotated Constitution of the Australian Commonwealth (1901) at 645-647.

30. For these reasons I have concluded that if the present dispute is capable of being categorised as an "industrial dispute" that can only be because it falls within par(a) of the extended meaning given to it by the definition, counsel for the first respondent properly accepting that it does not fall within par(b) or par(c) thereof. The learned primary judge took a somewhat wider view when (at 6) he concluded that a dispute relating to the termination of employment is a dispute relating to a matter pertaining to the relations of employers and employees, and in particular one pertaining to the terms and conditions of employment. It would appear that his Honour was relying on par9(a)(v) of the definition of "industrial matter". I do not agree with that conclusion which is not in accord with Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (supra). With respect, I do not find his Honour's reasoning, which also appears to rely on par(a) of the extended meaning of "industrial dispute" and on observations made by Gibbs CJ in Slonim v Fellows [1984] HCA 51; (1984) 154 CLR 505 at 510, to be sufficiently persuasive. It does not sufficiently recognise the true nature of the dispute, ie the sole subject of it is whether there should be created a liability to pay money by reason of the first respondent having been unfairly dismissed. The dispute in Slonim v Fellows (supra) was between the employer and an employee organisation and was whether the appellant had been unfairly dismissed from her employment and, if so, whether she should be re-instated in that employment. The primary relief sought was a restoration of the employer-employee relationship.

31. I turn to the question of whether the present dispute falls within par(a) of the extended meaning of industrial dispute. In the first instance I consider this question without reference to the Act, s70(1)(b), upon which the learned primary judge placed significant reliance. The dispute is between the first respondent and the appellant. It is a dispute which accepts that the first respondent's employment came to an end upon his dismissal and that there is no occasion to review the dismissal either upon the basis that it was unlawful or that otherwise it ought not to be permitted to stand. The dispute concerns a demand for the payment of a sum of money made subsequent to the dismissal. The dispute does not relate to the dismissal because it does not seek to call the dismissal into question.

32. Considerable support for this view is to be found in the decision of the Western Australian Industrial Appeal Court in Robe River Iron Associates v Associations of Drafting Supervisory and Technical Employees of Western Australia (1987) 68 WAIG 11. That case concerned the construction of provisions of the Industrial Relations Act 1979 (WA). That Act, s23(1) conferred upon the Industrial Commission jurisdiction to inquire into and deal with any industrial matter, other than various exceptions which are of no present concern. Section 7(1) defined "industrial matter". For present purposes the following portion of that definition is relevant:

"any matter affecting or relating to the work, privileges,

rights or duties of employers or employees in any industry

or of any employer or employee therein and, without limiting

the generality of that meaning, includes any matter relating

to

(a) ...

(b) the hours of employment, leave of absence, sex, age,

qualification, or status of employees and the mode, terms

and conditions of employment including conditions which are

to take effect after the termination of employment;

(c) the employment of children or young persons, or of any

person or class of persons, in any industry, or the

dismissal of or refusal to employ any person or class of

persons therein;

(d) ..."

33. The relevant dispute arose when the respondent, an employee association, sought a conference before a Commissioner upon the ground that it disputed the summary dismissal of three members of the salaried staff of the appellant who were members of the respondent. At the conference the respondent claimed that the dismissal of one of those persons on the ground of alleged gross misconduct was unfair and sought an order for his reinstatement without loss of entitlements and with continuity of employment and for an order that he be paid an appropriate sum by way of compensation. The Commissioner concluded that the employee's summary dismissal was not justified and that he had been unfairly dismissed. The Commissioner then observed that he did not consider reinstatement to be the appropriate course and eventually ordered that the employee be paid the sum of $48,000 which he fixed by reference to "the losses suffered by (the employee), as a result of the unfair dismissal".

34. It was submitted to the Industrial Appeal Court that the Commissioner did not possess jurisdiction to award compensation. The court considered that submission largely by reference to that part of the definition of "industrial matter" which included within it "any matter relating to ... the dismissal of ... any person". Subject to the reservation that the Act, s70(1)(b) may make them inapplicable to the present case, I express my complete agreement with the following observations of Rowland J (which in essence also reflect the views expressed by the other members of the court) at 22:

"If it be accepted, and as stated for the purpose of this

exercise I do accept it, that the Commission has power to

direct the former employer to re-employ the ex-employee,

then there is clear jurisdiction for the Commissioner to

embark upon the enquiry he first embarked upon in this case

(ie whether the summary dismissal was unfair). There is,

however, no express power in the Act to award 'compensation'

in this type of circumstance. And once the finding is made

that the employee shall not be reinstated, then it seems to

me that, even if the matter started off being an industrial

dispute in the sense that it was a matter affecting or

relating to the rights of employer and employee, the matter

is no longer an 'industrial matter' as defined because the

termination of that employment has been confirmed by the

Commissioner's finding that he be not re-employed. That

settled that particular industrial dispute. ... One can

well understand an argument that the power to order

re-employment connotes an ancillary power to award lost wages

because the relationship of employer and employee is to be

reactivated by the order that resolves that industrial

dispute; but, whatever the merits of that argument, it seems

to me that there is no argument to support a claim for

compensation unrelated to the contract of employment just

ended, at least in this case where the sole and only

industrial dispute related to the way in which the former

employer treated the particular ex-employee."

35. This case confirms my conclusion that, subject to the effect of s79(1)(b), the present dispute is not an industrial dispute because it does not relate to the dismissal of the first respondent. My reasons for this conclusion are such that, for the purposes of reaching it, it may be assumed that any dispute which actually relates to the dismissal of an employee does constitute an industrial dispute. It may be doubted that such an assumption ought to be made, although a conclusion that it ought not to be made cannot serve to assist the first respondent. It provides further support for the view that the present dispute is not an industrial dispute as that expression is defined. Paragraph (a) of the definition of "industrial dispute" ought to be read as containing an implied requirement that the dispute have some sufficient industrial character before a dispute which literally falls within it does fall within it. The point may be illustrated by an extreme example. I do not consider that a dispute which arises by reason of a former employer declining to accede to a demand made by an officious bystander, in no way connected with the relevant industry, that such employer reinstate an ex-employee would fall within par(a).

36. The mere fact that par(a) does not state any requirement that a relevant dispute have an industrial character does not require a construction which results in it encompassing all disputes literally within it. The second of the passages from the joint judgment of Stephen, Mason and Wilson JJ in R v Staples; Ex parte Australian Telecommunications Commission (supra) which I have set out above suggests that par(a) ought to be read down as being limited to disputes which do have an industrial character. Such a reading down of the literal meaning is required by the primary meaning of "industrial dispute" and by the whole context of the Act (see also Commissioners of Customs and Excise v Savoy Hotel Ltd (supra)) and results in the present dispute falling outside the definition even if it could be said that it "related" to the first respondent's dismissal. The absence of any continuing employer-employee relationship and of any demand for the restoration of that relationship, coupled with the non-involvement in the dispute of the existing employees or any employee organisation, confirm the personal and non-industrial nature of the dispute.

37. It must be said that a conclusion that Commissioners have jurisdiction to determine disputes of the nature of the present dispute by the making of orders for the payment of money would have startling consequences. It would amount to an acceptance of the proposition that in circumstances where an employee is lawfully dismissed without there being any breach of a relevant award or the contract of employment and without the law providing for some remedy for the employee in the event of such dismissal, a mere demand by the former employee for payment of a sum of money to which the employee has no entitlement, if not complied with, confers a power to order that some sum be paid. Whilst such a remedy might properly be considered to be socially desirable, if the legislature had been minded to provide for it, it might be assumed that it would have done so in express terms. Since the dismissal of the first respondent the Commonwealth has enacted legislation to this effect in the form of the Industrial Relations Act 1988, ss170CA-170HB.

38. Finally consideration must be given to the Act, s70(1), and in particular pars(b), (c) and (d) thereof. Counsel for the first respondent has submitted that even if otherwise the Act ought to be construed in a way which excludes the present dispute from the definition of "industrial dispute" (and I have concluded that it should be so construed), the effect of s70(1)(b) is such that it requires the contrary conclusion. The relevant paragraphs of s70(1) provide as follows:

"70 (1) An appeal may be made to a Full Bench against

...

(b) an order made by a Commissioner under section 31

directing that an amount be paid or that no amount be paid

to a person who has been found by the Commissioner to have

been unfairly dismissed in circumstances where reinstatement

or re-employment is not possible or practical or to a person

who has been retrenched or made redundant involuntarily by

(i) the organization of which the person is a member or

that person; or

(ii) the employer or organization of which the employer is

a member; and

(c) an order made by a Commissioner under section 31

directing that a person be reinstated or re-employed by the

organisation of which that person is a member or the

employer, employer organisation or that person; and

(d) an order made by a Commissioner under section 31

directing that a person not be reinstated or re-employed by

that person or the organisation of which that person is a

member; ..."

39. Section 70 in its present form was inserted by the Industrial Relations Amendment (Enterprise Agreements and Workplace Freedom) Act 1992. The former s70, which also provided for appeals to a Full Bench of the Commission, did not provide for any form of appeal against an order under s31(1). The learned primary judge placed considerable reliance on s70(1)(b), concluding that the "clear wording of s70(1)(b) acknowledges the existence of a power in a Commissioner to make an order under s31 directing payment of money to a person found by the Commissioner to have been unfairly dismissed in circumstances where reinstatement or re-employment is not possible or practical".

40. Counsel for the appellant relied upon Blackburn v Campbell (1966) Tas SR 14 for the proposition that an amendment to an Act which proceeds upon an erroneous assumption of the pre-existing law does not operate so as to change the law. I consider that reliance to be misconceived. If prior to the insertion of s70 the present dispute fell outside the ambit of ss30 and 31, s70 was capable of having the effect of expanding the operation of those sections so as to bring the present dispute within them. The Act, as amended, is to be read as a whole (Acts Interpretation Act 1931, s8(1)) and an amendment is capable of affecting the proper construction of some part of the Act not directly the subject of the amendment. The principle contended for by the appellant is limited to the case where a later Act proceeds upon an erroneous view of an earlier Act, but does not amend that earlier Act.

41. The drafting of s70(1)(b), (c) and (d) is somewhat peculiar. Reference is made to orders made by a Commissioner under s31 "directing ... that no amount be paid" and "directing that a person not be reinstated or re-employed". I do not understand how a Commissioner could make such orders. They are not orders authorised by s31, which only permits the making of orders directing that a thing be done or that an action be taken. It may be that the draftsman had in mind cases where a Commissioner declines to make an order sought. Section 70(1) appears to be another example of something which is becoming increasingly common, namely legislative drafting without a proper appreciation of the legal context in which the provision which is being drafted is to operate.

42. Section 70(1)(b) appears to make the following assumptions:

1 that where a Commissioner determines that a person has

been unfairly dismissed and reinstatement or re-employment

is ordered, there can be no occasion to order that some

amount of money be paid to that person;

2 that where an employee is unfairly dismissed and it is

possible and practicable to order reinstatement or

re-employment, such an order must follow as a matter of

course; and

3 that there is a clear legal distinction between dismissal

on the one hand and retrenchment or termination as a result

of redundancy on the other.

43. None of those assumptions should be made. A Commissioner has a wide discretion under s31(1). If the discretion is wider than that suggested by s70(1)(b) then the rights of appeal conferred by s70(1)(b), (c) and (d) do not extend to all orders which may be made under s31(1) but only to orders of particular types. One cannot but have the suspicion that the origin of the drafting of s70(1)(b) is to be found in the practice of the Commission at the time that s70 was inserted, without regard to the actual jurisdiction conferred by s31(1), with the result that there has been conferred a right of appeal against orders of the type commonly made by Commissioners but not a general right of appeal against all forms of orders as Commissioners might make under s31(1).

44. A provision such as s70(1)(b) is a rather unusual method of conferring primary jurisdiction. It ought not to be construed as having that effect unless no other reasonable construction is open. Nevertheless I tend to the view that s70(1)(b) does enlarge the powers of Commissioners under s30(1) so as to make the reasoning which appears in Robe River Iron Associates v Association of Drafting Supervisory and Technical Employees of Western Australia (supra) inapplicable to the extent that there is a clear enlargement of those powers. It does not follow that s70(1)(b) is to be construed so as to bring the present dispute within the jurisdiction conferred within s30.

45. It is unnecessary to determine the actual effect of s70(1)(b). If it enlarges the jurisdiction which may be exercised by a Commissioner under s31(1) that enlargement cannot be availed of by the first respondent. At its highest, the legal position, as modified by s70(1)(b), is as follows:

1 a dispute between a former employer and an ex-employee

which calls into question the dismissal of that ex-employee

in the sense that he has made an unsatisfied demand that he

be reinstated or re-employed by reason of the unfairness of

the dismissal may be an industrial dispute if it has a

sufficient industrial character;

2 such a dispute, if it is an industrial dispute, may be the

subject of a conference held in accordance with s31(1);

3 if at such a conference the Commissioner has occasion to

give directions, the Commissioner:

(a) must determine whether the dismissal was unfair;

(b) if he concludes that it was unfair, must determine

whether reinstatement or re-employment should be ordered and

in particular whether that would be possible and practical;

(c) if he does not determine that reinstatement or

re-employment should be ordered (at least if that is because

he has concluded that that would be neither possible nor

practical), may direct that some sum of money be paid by the

former employer to the ex-employee.

46. Whilst I agree with the learned primary judge that the "clear wording of s70(1)(b) acknowledges the existence of a power in a Commissioner to make an order under s31 directing payment of money to a person found by the Commissioner to have been unfairly dismissed in circumstances where reinstatement or re-employment is not possible or practical" it does not particularly acknowledge the power of the Commissioner to make such an order in the circumstances of the present case.

47. I have concluded that although a Commissioner may well have the power to make an order of the relevant type referred to in s70(1)(b) in the circumstances which I have mentioned, no such power is capable of arising in relation to the present dispute. My reasons for this conclusion should be apparent from what I have said but they may be summarised as follows:

1 The dispute between the second respondent and the

appellant does not have a sufficient industrial character to

bring it within the definition of "industrial dispute",

although many disputes involving an allegation of unfair

dismissal are capable of having that character.

2 Section 70(1)(b) is concerned with the case where a

Commissioner has concluded that a restoration of the

employment relationship is neither possible nor practical,

although that is the primary relief which is sought. It is

not concerned with the case where the ex-employee merely

seeks money, having raised a dispute in terms which remove

the question of the practicality and possibility of the

restoration of the employment relationship from the

Commissioner's consideration.

48. Finally, I should say that I have looked at Royal Children's Hospital v President of the Industrial Relations Commission of Victoria (1989) VR 517 but have not found it of assistance. Some dicta appearing therein may be considered to be at variance with some of the views which I have expressed, but I consider that they turn on a construction of particular provisions contained in the Industrial Relations Act 1979 (Vic) which are not to be found in the Act.

49. For these reasons I have concluded that the appeal should be allowed. The learned primary judge ordered the issue of a writ of prohibition but limited in the way in which I have indicated. The effect of my conclusions is that the second respondent ought to be prohibited from further proceeding to conduct the relevant conference or to make any order at such a conference without any conditions or limitations. I see no reasons why the writ actually ought to issue. The court now has a general power to make orders in lieu of prohibition (Rules of the Supreme Court 1965, O72, r4(2)(iii)) and I incline to the view that where such an order provides a sufficient remedy, a writ should not issue. Such an order provides a sufficient remedy in the present case.

1 That the appeal be allowed.

2 That the orders of Cox J made on 25 October 1994 (other

than the order adjourning the question of costs sine die) be

set aside.

3 That the second respondent be restrained from further

proceeding with a conference pursuant to the Industrial

Relations Act 1984, s30 in proceedings T5080 of 1994 and

from making any order in relation to the matter in respect

of which that conference was convened.