New Town Timber and Hardware Pty Ltd v Anthony John Gurr and Robert Gozzi [1995] TASSC 79;

New Town Timber and Hardware Pty Ltd v Anthony John Gurr and Robert Gozzi [1995] TASSC 79; - TASSC 1995 case summary — Zoe

[29]

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.

[34]

"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."

[35]

"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."

[155]

"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."

At a glance

Court

Decision date

Before

Source

Judgment (185 paragraphs)

New Town Timber and Hardware Pty Ltd v Anthony John Gurr and Robert Gozzi [1995] TASSC 79; (1995) 5 Tas R 71 (27 July 1995)

Parties

Legislation Cited (17)

Cases Cited (10)