Shop, Distributive and Allied Employees' Association, New South Wales v Librus Pty Ltd, t/as Dymocks Parramatta

Industrial Relations Commission (NSW)|2001-07-01|Before: Walton J, Hungerford J

CITATION : Shop, Distributive and Allied Employees' Association, New South Wales v Librus Pty Ltd, t/as Dymocks Parramatta [2001] NSWIRComm 46 APPELLANT Shop, Distributive and Allied Employees' Association, New South Wales PARTIES : RESPONDENT Librus Pty Limited, trading as Dymocks Parramatta FILE NUMBER: IRC 7062 of 1999 CORAM: Walton J Vice-President; Hungerford J; Patterson C Unfair Dismissal - Termination of a casual employee - Engaged for a period of 11 weeks for 4 to 15 hours per week - Whether jurisdiction to conciliate claim for alleged harsh, unreasonable or unjust dismissal - Whether exempt from relief because engaged for less than 6 months - Statutory provisions exempting an employee engaged for a short period - Conciliation function - Arbitration function - Practice dealing with claims - Proceedings miscarried - Remitted for reconsideration.

CATCHWORDS : Appeal - Against dismissal of claim - Lack of jurisdiction found at threshold - Conciliation not attempted - Appeal upheld and claim remitted for reconsideration.

Practice and Procedure - Process for dealing with unfair dismissal claims - Conciliation function - Arbitration function - Appropriate stage to determine jurisdictional question.

Industrial Arbitration Act 1940 s 25 (repealed) LEGISLATION CITED : Industrial Relations Act 1996 s 3(g) s6(1) s 6(2) s 83(1)(b) s 83(2)(c) s 84(1) s 84(2) s 86 s 87(1) s 89 Industrial Relations (General) Regulation 1996 cl 5B(1)(d) BHP Refractories Pty Ltd v AWU-FIME Amalgamated Union, NSW (1996) 69 IR 41 Carbines v Powell (1925) 36 CLR 88 Clarkson v Dent (1998) 84 IR 250 Deltec International Courier Pty Ltd v Transport Workers' Union of Australia, NSW Branch [1993] 50 IR 341 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Hope v Bathurst City Council (1980) 144 CLR 1 Nagle (t/as W D and J L Nagle & Sons) v Tilburg [1993] 51 IR 8 CASES CITED : NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 Public Service Board v Teachers' Federation [1968] AR (NSW) 292 R v Bain, ex parte Cadbury Schweppes Australia Ltd (1984) 159 CLR 163 Reed v Blue Line Cruises Ltd (1996) 73 IR 420 Ryde-Eastwood Leagues Club Ltd v Taylor (1994) 56 IR 385 Stevenson v Barham (1997) 136 CLR 190 Teachers at Bega and Other High Schools [1970] AR (NSW) 245 Teachers' Federation v Public Service Board [1968] AR (NSW) 507 HEARING DATES: 06/15/2000 DATE OF JUDGMENT: 03/26/2001

APPELLANT Mr A G Rogers of counsel Mr R Tonkli of Shop, Distributive and Allied Employees' Association, New South Wales LEGAL REPRESENTATIVES: RESPONDENT Mr G J Hatcher of counsel Mr D Ritchie of Australian Retailers' Association, New South Wales

JUDGMENT: - 23 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WALTON J, Vice-President HUNGERFORD J PATTERSON C Monday, 26 March 2001 Matter No IRC 7062 of 1999 SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES' ASSOCIATION, NEW SOUTH WALES v LIBRUS PTY LIMITED, TRADING AS DYMOCKS PARRAMATTA Application for leave to appeal and appeal against a decision of Elder C given on 21 December 1999 in Matter No IRC 6269 of 1999 re unfair dismissal. DECISION OF THE COMMISSION [2001] NSWIRC omm 46 1 This is an application for leave to appeal and, if leave be granted, an appeal against a decision given by Elder C on 21 December 1999 relating to the alleged unfair dismissal of a casual employee on 9 November 1999. The commissioner found the Commission lacked jurisdiction under Pt 6 - Unfair dismissals (ss 83 to 90B) of Ch 2 of the Industrial Relations Act 1996 to determine whether the claim for relief was harsh, unreasonable or unjust so as to enable an order to be made for reinstatement, re-employment or compensation; the finding as to jurisdiction extended to preclude the process of conciliation and, therefore, the claim was dismissed for want of jurisdiction. The commissioner announced that finding in the proceedings on 8 December 1999 and in the published decision given on 21 December 1999 he confirmed it. The present proceedings challenged that finding. 2 The sole question raised by the appeal was set out in the notice of appeal as follows : Does the Commission have jurisdiction to determine an application for unfair dismissal where an employee has been employed, for the purposes of an award of the Commission, as a casual employee for a period of less than 6 months?

The notice added the reason in support of leave to appeal as being that the "issue is one of vital importance in the exercise of the Commission's jurisdiction in relation to unfair dismissal". 3 The grounds of the appeal were stated in the following terms : 1. The learned Commissioner erred in holding that he had no jurisdiction to determine the matter.

The learned Commissioner erred in holding that he was unable to conciliate a matter if he had no power to arbitrate a matter.

The learned Commissioner failed to consider whether the employee was engaged on a casual basis.

The learned Commissioner determined the matter without first giving the parties an opportunity to call evidence as to the nature of the dismissed employee's employment.

The learned Commissioner failed to give any, or any adequate, reasons.

The relief claimed on appeal was for the commissioner's decision to be quashed and the matter remitted for determination with such directions as the Full Bench considered appropriate. 4 It appears from the initiating process at first instance and the matters debated at the commencement of the proceedings before the commissioner that Leanne Rosemary Wilding, then 19 years of age, commenced employment with Librus Pty Limited, trading as Dymocks Parramatta (the respondent to the appeal) on 27 July 1999 as a sales assistant under the terms of the Shop Employees (State) Award on a casual basis. She worked according to a published weekly roster, albeit said to be on a trial basis for an unspecified period, for hours of from 4 to 15 per week. After about 11 weeks of such employment, Ms Wilding worked a shift on 9 October 1999 but, without further notice, she was not rostered for any later shifts, even though at the time the respondent employer was advertising for casual employees to work at times when Ms Wilding was able to do so. Finally, after a few weeks she contacted the respondent and was advised she would no longer be rostered for work. On 9 November 1999, the Shop, Distributive and Allied Employees' Association, New South Wales (the appellant) on her behalf contacted the respondent and was informed, without any reasons being given, that her employment had in fact been terminated. In the result, on 12 November 1999 the appellant filed on Ms Wilding's behalf an application pursuant to s 84 of the Industrial Relations Act claiming her dismissal was harsh, unreasonable and unjust and sought an order for reinstatement or other alternative relief available under s 89 of the Industrial Relations Act . The application thereupon was before Elder C for a preliminary hearing on 8 December 1999. 5 On the hearing of the appeal we permitted full argument by the appellant, represented by Mr A G Rogers of counsel, on both leave to appeal and the appeal itself. At the conclusion of counsel's argument we announced that leave to appeal would not be granted in relation to whether Ms Wilding was engaged on a casual basis (ground 3 of the grounds of appeal) or whether the commissioner failed to give any, or any adequate, reasons for his decision (ground 5). In the result, we heard the respondent's argument from Mr G J Hatcher of counsel on both leave to appeal and the appeal as to whether there was jurisdiction to determine the claim brought by the appellant on behalf of Ms Wilding (ground 1) and whether, in any event, the commissioner had failed to conciliate the claim before finally determining it (grounds 2 and 4). As to those matters in grounds 1, 2 and 4, we are satisfied they involve issues concerning statutory construction, the consequent effect on the scope of the Commission's powers in an important area of its regular functions and, most significantly we think, the proper procedures which should be adopted in dealing with claims. We propose to grant leave to appeal in relation to them. 6 At the outset, we have to express concern at the course the proceedings took before the commissioner. They were listed initially for what was called a "preliminary hearing"; presumably, that was to enable the applicant, now the appellant, to outline the nature and circumstances of the claim and, as its advocate then said, for "your assistance, commissioner, resolving this matter". The proceedings commenced and, at least initially, seemed to be in the conciliation phase. The advocate for the respondent there, also the respondent on appeal, confirmed some facts about Ms Wilding's employment and immediately made a submission "that, in accordance with regulation 5B, this commission does not have jurisdiction to hear this case, because the casual was a person who had less than six months' service". The appellant's advocate disputed the alleged lack of jurisdiction by reference to Ryde-Eastwood Leagues Club Ltd v Taylor (1994) 56 IR 385 and Reed v Blue Line Cruises Ltd (1996) 73 IR 420, cases which we do not find it necessary to deal with, but, more importantly for present purposes, he put the proposition, as he said, that "I understand also this is a conciliation, not an arbitration". After some further short debate, during which the commissioner confirmed that "this is a conciliation", the respondent submitted as to conciliation "that we would run the jurisdictional argument first". The two cases cited above were then debated as to their relevance and the commissioner said : All he (advocate for the respondent) is saying is that that relationship existed for less than six months and so, therefore, by the regulation, I am excluded. I don't think he's challenging the nature of the employment. He's not saying, or he hasn't said so far, and I understand he's not saying, that the contract of employment commenced and ended on each shift.

I mean, you've already put the roster system up and I think that that, in itself, can probably be relied upon as far as Ryde-Eastwood is concerned but it doesn't overcome the problem that I have with Mr Ritchie's submission regarding the length of time that the contract existed and its effect on me, vis-a-vis the regulation 5B. 7 The appellant countered that Ms Wilding's "employment … was not a casual of the type exempted by the regulations". The respondent maintained there was no jurisdiction to deal with the matter and, therefore, it "should be struck out". The commissioner then determined the matter in this way : Under the regulations, certain types of employment are exempted from this Commission, and, as Mr Ritchie has pointed out, you are caught up in that exemption clause that I'm governed by; so I can't hear the matter, I don't have the power. On that basis, I can't force a conciliation - unless I do have jurisdiction - without the agreement of all parties, and I don't have that agreement.

So on this basis then, due to the nature of the employment, Mr Tonkli, I'm going to have to dismiss your application. 8 The appellant took the position that the commissioner was under a duty to conciliate the matter before determining it by arbitration; that is, as Mr Rogers put, dismissal of the application was not available until the requirements of s 86 of the Industrial Relations Act as to the conciliation of applications had been complied with. On the other hand, Mr Hatcher's submission was that the "Commissioner cannot be under a duty to conciliate where he has no jurisdiction to conciliate. The Commissioner found, correctly, that he had no jurisdiction, accordingly he could not conciliate". 9 The statutory scheme created by Pt 6 of Ch 2 of the Industrial Relations Act in the processing of a claim for an alleged unfair dismissal may be summarised in presently relevant respects in this way. The Part applies inter alia to the dismissal of an employee, here Ms Wilding, employed under an industrial instrument such as the Shop Employees (State) Award: s 83(1)(b). The Part does not apply to specified classes of employees exempted by the regulations: s 83(2). A dismissed employee may claim that the dismissal by the employer was harsh, unreasonable or unjust so as to enable the employee to apply to the Commission for the claim to be dealt with under the Part: s 84(1). Such application may be made by an industrial organisation of employees, such as the appellant here, on behalf of the employee concerned: s 84(2). The Commission must endeavour, by all means it considers proper and necessary, to settle the claim by conciliation: s 86. Where the Commission is of the opinion that all reasonable attempts to settle the claim by conciliation have been made but have been unsuccessful, then it is to determine the claim by making an order under s 89 for reinstatement, re-employment or remuneration, by dismissing the application or by making any other order authorised to be made under the statute: s 87(1). 10 The short point of Mr Hatcher's submission was, in effect, that where Pt 6 of Ch 2 did not apply to an employee who was exempt therefrom by the regulations then the Commission had no duty to conciliate and, therefore, no alternative but to dismiss the claim. Howsoever such a submission may be logically attractive, we do not consider it to be correct having in mind the statutory scheme relating to unfair dismissals and the ordinary processes for the disposition of claims. It should immediately be acknowledged, of course, that if the Commission, like any court or tribunal, does not have jurisdiction (or power) to determine a claim then it should not, indeed cannot, do so. However, it is not so much a question of whether but rather when and in what way the jurisdictional argument should be dealt with. For instance, in Clarkson v Dent (1998) 84 IR 250 a Full Bench ( Wright J, President, Hungerford J and Bishop C) of the Commission outlined the difficulties arising in determining claims, even where a jurisdictional issue was involved, at the threshold rather than during the substantive proceedings when all relevant facts were available to enable a final determination to be made. The Full Bench concluded (84 IR at p 252) : For ourselves, the test so formulated is well and appropriately suitable for application in industrial jurisprudence and we consider it should be followed. If that did not occur then, we would apprehend, the Commission would risk denying a party the proper opportunity to present a case thereby failing in its statutory duty consistent with s 163(1)(c) of the (Industrial Relations) Act to do justice between parties. 11 In Stevenson v Barham (1977) 136 CLR 190, for instance, Mason and Jacobs JJ (with whom Barwick CJ agreed) considered the practice of the former Industrial Commission of permitting a question of jurisdiction to be argued as a preliminary point and, whilst saying that a tribunal should not embark on a hearing which it lacked authority to conduct, added the "general rule (that) it is desirable that an objection to jurisdiction be determined as early as circumstances will conveniently admit " (136 CLR at p 202) (emphasis added). The question was considered directly by a Full Court ( Fisher CJ, Hungerford and Peterson JJ) of the former Industrial Court in Nagle (t/as W D and J L Nagle & Sons) v Tilburg [1993] 51 IR 8 where their Honours, after reviewing the authorities, stated "the proposition that whilst it is desirable for a case to be determined at an early stage it is only open to do so at the appropriate stage of the proceedings, that is, where the facts, either established by evidence or plainly agreed in terms, enable the Court to determine what the contract or arrangement is or, at least the parameters of the contract or arrangement" (51 IR at p 11). Their Honours further held, by reference to General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at pp 128-129 "that the jurisdiction to terminate an action summarily for want of a cause of action in the plaintiff was to be sparingly employed and ought not to be used save where the lack of the cause of action was clearly demonstrated" (51 IR at p 12). 12 In the present case, and notwithstanding the facts advised to the commissioner but about which there was some disagreement, the position was that the assertion by the respondent of a lack of jurisdiction was resisted by the appellant who wished to argue the availability of a remedy under the statute by reference to the nature of Ms Wilding's employment. And that was so where the proceedings were still in the conciliation phase and where there was no indication by the commissioner he was moving to finally dispose of the claim by arbitration. Even though that may have been due to a view, but about which there was no reasoned argument put by the parties, that the claim was not able to be conciliated because it was simply unable to be brought in the first place, the process adopted by the commissioner was, in our view, contrary to ordinary principle as we have described it. In any event, conciliation of the claim, because of the resistance of the respondent, was not even attempted contrary, in our view, to the explicit terms of s 87(1) which only enables the dismissal of an application "When … all reasonable attempts to settle the applicant's claim by conciliation have been made but have been unsuccessful". It follows that the proceedings before Elder C miscarried in that an important jurisdictional point was determined during a preliminary hearing and where conciliation had not commenced in any meaningful sense. 13 It needs to be emphasised, we think, and as a Full Bench ( Hungerford and Marks JJ, Sheils CC) of the former Industrial Relations Commission held in Deltec International Courier Pty Ltd v Transport Workers' Union of Australia, New South Wales Branch [1993] 50 IR 341 at p 344: Where, as here, it appears upon the face of the record that there may not be jurisdiction for any contract determination to be made then the Commission is obliged, in our opinion, to decide the point.

The position was later summarised in BHP Refractories Pty Ltd v AWU-FIME Amalgamated Union, New South Wales (1996) 69 IR 41 at p 45 per Hungerford J, as follows : As was observed by Griffith CJ in Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Company Ltd (1911) 12 CLR 398 at 415: "But the first duty of every judicial officer is to satisfy himself that he has jurisdiction, if only to avoid putting the parties to unnecessary risk and expense." True it is that adoption of the approach, which was cited with approval by Latham CJ in R v Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia (1950) 82 CLR 54 at 70, does not mean the Commission must in every case coming before it deal with its jurisdiction to do so, unless something appears on the face of the record to cause doubt or where a party makes a direct jurisdictional challenge: see Board of Fire Commissioners of New South Wales v Threlfo [1960] AR (NSW) 349 at 350 and Re Refinery Operatives (Shell Refining) Award (No 2) [1969] AR (NSW) 108 at 117. 14 So, the question arises whether in the proceedings before Elder C something appeared on the face of the record to cause doubt as to jurisdiction, including as to the commissioner's power to attempt a conciliation of the matter as put by the respondent. Even then, of course, the jurisdictional challenge should only have been entertained when it was appropriate to do so: see Nagle v Tilburg and s 87(1) of the Industrial Relations Act. For the reasons we have given, that appropriate stage of the proceedings had not been reached when the commissioner prematurely dismissed the claim. Ground 4 of the appeal is made out. 15 The procedural error so made led to the acceptance by the commissioner of the respondent's submission, but really by way of assumption and without any real debate, that he was unable to conciliate the matter if he had no power to arbitrate the claim. Ground 2 of the appeal refers to this aspect and we now turn to it. The question so posed raises issues as to the proper processing of claims relating to the conduct of industrial relationships and the framework established by the Industrial Relations Act to deal with them. The submission by Mr Hatcher, that if s 83(2) of the statute exempts an employee from Pt 6 of Ch 2 then the power to conciliate under s 86 is also removed, requires consideration in the context of the whole statutory scheme. 16 The long title to the Industrial Relations Act states it purpose as being "to reform the law concerning industrial relations" and, in s 3 - Objects, para (g) sets out a presently relevant purpose as being "to provide for the resolution of industrial disputes by conciliation and, if necessary, by arbitration in a prompt and fair manner and with a minimum of legal technicality". The Dictionary to the statute defines an "industrial dispute" as follows : industrial dispute means a dispute (including a question or difficulty) about an industrial matter, and includes the following:

Section 6 - Definition of industrial matters in sub-s (1) thereof gives a general definition of "industrial matters" as meaning "matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry"; examples of industrial matters are contained in sub-s (2) and in para (d) "casual employment" is referred to and in para (e) "the termination of employment of (or the refusal to employ) any person or class of persons in any industry" is cited. It may be undoubted, in our opinion, that casual employment, such as that of Ms Wilding, and the termination of employment of any class of employee, such as the dismissal here, are "industrial matters" within the comprehension of the statute. 17 In R v Bain; ex parte Cadbury Schweppes Australia Ltd (1984) 159 CLR 163, the issue before the High Court was whether the Australian Conciliation and Arbitration Commission should be prohibited from proceeding further to certify a memorandum of agreement concerning redundancy where it was alleged that the subject-matter of redundancy was outside the ambit of a continuing interstate industrial dispute. By majority ( Murphy, Brennan and Deane JJ, Wilson and Dawson JJ dissenting), the application for prohibition failed and it was held that the agreement could be certified. The majority judgments, by analogy with the position before us, contained some helpful observations as to the relationship between conciliation and arbitration powers. Murphy J commented that "the process of arbitration requires a determination which is within the ambit of the dispute. But this doctrine is not to be applied rigidly; … But in conciliation parties may settle the dispute by an agreement which goes beyond the ambit of the dispute" (159 CLR at p 168). In the joint judgment of Brennan and Deane JJ, their Honours said (159 CLR at pp 175-177): While the Commission's conciliation and arbitration functions may overlap, the Act maintains a distinction - perhaps an unnecessarily rigid one - between them. That distinction reflects the difference in nature between conciliation and arbitration. The Commission's conciliation functions involve and are directed to assisting the prevention or settlement of industrial disputes by "amicable agreement" between the prospective or actual parties to the particular dispute. Its arbitration functions are directed to preventing and settling industrial disputes not resolved by amicable agreement and involve the making of binding awards which are not consensual in their nature (see, generally, per Isaacs J, Monard v H M Leggo & Co Ltd ((1923) 33 CLR 155 at p 164). The powers of the Commission to certify a memorandum or make an award under s 28 of the Act are part of its conciliation powers. They are exercisable only where the parties to an "industrial dispute" have reached "agreement on terms for the settlement of all or any of the matters in dispute" before the "industrial dispute has been referred to arbitration". Under the general scheme of the Act, they are exercisable before the stage of arbitration has been reached (see Act, ss 26, 27, 28(1), 29(1)(a) and 30(1)).

Once the stage of arbitration is reached, the ambit of the particular interstate industrial dispute is the yardstick for measuring the constitutional validity of an award made in exercise of the Commission's arbitral functions. That is because the ambit of the dispute determines the limits of the jurisdiction of an arbitrator to bind the parties by his award. Those limits are derived from the nature of arbitration; they do not circumscribe the functions of a conciliator who is at liberty to assist the parties themselves to avoid or settle a dispute by an agreement which ventures beyond the ambit of their prospective or actual dispute. If the functions of an industrial conciliator were circumscribed by the ambit of a prospective or actual dispute, they would lack the flexibility and sophistication exhibited even by the conciliation processes of primitive tribal societies (see, eg G McCormack, "Procedures For The Settlement of Disputes in 'Simple' Societies", The Irish Jurist , vol. 11 (1976), 175; Roberts, Order and Dispute (1979), pp 68-69). The decisions of this Court in which the limits of arbitral power have been stated by reference to the ambit of disputes may be given too wide a significance if they are assumed to state in the same way the scope of the legislative power with respect to conciliation under s 51(xxxv) of the Constitution or the scope of the conciliation powers of the Commission under the Act (cf per Isaacs and Rich JJ, Federated Clothing Trades of the Commonwealth of Australia v Archer ((1919) 27 CLR 207 at pp 212-213). Since that question was not examined in argument in the present case however, we refrain from forming any concluded view upon it. In that regard, it should be mentioned that it was not submitted on behalf of the prosecutor that the Commission's powers under s 28 were inapplicable for the reason that there was no relevant industrial dispute which had not already been referred to arbitration. (emphasis added) 18 We have considered the reasoning of Brennan and Deane JJ in Bain against the corresponding provisions of the Industrial Relations Act , as quoted by us above, and we find it directly applicable to the resolution of the issue we have to make. True it is that s 83(2) may well exempt by regulation a class of employee from Pt 6 of Ch 2, but s 86 imposes an explicit duty on the Commission to endeavour, by all proper and necessary means, to settle a claim by conciliation - the conciliation function; by s 87(1), it is only when conciliation has failed that the Commission is to determine the claim by an order under s 89 - the arbitration function; and, importantly, in determining such a claim by arbitration the Commission is able under s 87(1) to dismiss it, such as, for lack of jurisdiction. As in Bain , our view is that the unfair dismissals scheme in the Industrial Relations Act similarly distinguishes between the conciliation and the arbitration functions. Unless and until the want of jurisdiction is found in the later arbitration phase, then, we conclude, the earlier conciliation function under s 86, particularly as here in relation to what otherwise is plainly an industrial matter, should not be circumscribed by an alleged lack of arbitral power. 19 The view we have reached on the availability of conciliation under the present Industrial Relations Act is consistent, it should be emphasised, with that regularly utilised under the Industrial Arbitration Act 1940 as its statutory predecessor and specifically the compulsory conference provisions in s 25 thereof. That practice may be illustrated by a series of disputes concerning school teachers. In Re Dispute - Public Service Board and Teachers' Federation [1968] AR (NSW) 292, a Full Bench ( Beattie J , President, Cook and Sheldon JJ) of the then Industrial Commission in Court Session held that even though questions raised in a compulsory conference were outside the jurisdiction and competence of the Commission to determine it was still the Commission's statutory duty under s 25 to encourage conciliation between the parties. That approach was later followed by a Full Bench ( Beattie J, President, Richards and Cook JJ) in NSW Teachers' Federation v Public Service Board [1968] AR (NSW) 507 at pp 517-518 where it was commented "that the power to conciliate extends to matters beyond the award-making power". Again, in Re Dispute - Teachers at Bega and Other High Schools [1970] AR (NSW) 245 at p 245, a Full Bench ( Beattie J, President, Cook and Sheldon JJ) said : We emphasise again that the arbitral powers of the Commission in relation to teachers are limited by the Act. Clearly they do not extend to the issues arising in the present dispute. But, as we stated in a previous matter, we have a statutory duty to try to effect the settlement of a dispute such as this by conciliation. It is to this end that our conferences with the parties are directed. If these efforts fail, we are reluctant to express views on the merits of the dispute which we are powerless to enforce but which can be embarrassing to one or both of the parties. 20 It follows, in our view, that Elder C erred in holding he was unable to conciliate Ms Wilding's unfair dismissal claim even if he had no power to determine it by arbitration. Appellable error occurred so that ground 2 has been established. That leads to a consideration of ground 1 as the remaining ground of appeal and which concerned whether the commissioner indeed had jurisdiction to arbitrate the claim. That involves a consideration of the relevant statutory provisions and about which the major argument on appeal was directed. 21 In the decision published on 21 December 1999, Elder C dealt with this matter quite shortly and it is convenient to repeat his reasoning, as follows : The Respondent refused to enter conciliation and relied on the fact that Ms Wilding had been employed as a casual from 27 July 1999 until her dismissal - a period of less than six months, and that during that eleven (11) week period her hours of work had varied from four (4) to fifteen (15). Mr Ritchie submitted that the Commission was excluded from dealing with the matter by Regulation 5B.

Mr Tonkli sought to relate the Industrial Relations Act 1996 with the (Commonwealth) Industrial Relations Act 1988 by referring to the explanatory notes to the regulations of 26 September 1997 and by referring the Commission to the decision of this Commission in Ryde-Eastwood and to the 1994 decision of the Australian Industrial Relations Commission decision in Reed v Blue Line Cruises.

Mr Tonkli stated that he wished to use the Reed v Blue Line decision "to explain how Ms Wilding was a person whose employment wasn't characterised by informality, irregularity or inflexibility. The Commission responded that the nature of Ms Wilding's casual employment was not being challenged by Mr Ritchie, but rather it was the length of time that Ms Wilding had been employed and the terms of Regulation 5B that were relevant.

The Commission referred Mr Tonkli to the wording of Regulation 5B(1)(d)(i) and (ii), which clearly exempts any casual worker with less than six months service.

The matter was dismissed for lack of jurisdiction due to the provisions of s5B(1)(d) of Part 2A of the Industrial Relations (General) Amendment (Unfair Dismissal) Regulation 1997 in respect to s83(2)(c) of the Industrial Relations Act 1996. 22 The statutory provisions relevant to the question raised by ground 1 are s 83(2) of the Industrial Relations Act and cl 5B(1) of the Industrial Relations (General) Regulation 1996 which, in relevant respects, are in the following terms : 83 Application of Part

(2) This Part does not apply to an employee who is exempted from this Part by the regulations. Any such regulation may only exempt specified classes of employees included in any of the following classes:

… 5B Other exemptions from unfair dismissal provisions

(1) For the purposes of section 83(2) of the Act, the following classes of employees are exempted from Part 6 of Chapter 2 of the Act:

(d) employees engaged on a casual basis for a short period except employees who:

(i) are engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months, and

(ii) would, but for the dismissal, have had a reasonable expectation of continuing employment with the employer. 23 It will be immediately apparent that the sole basis for the commissioner's finding of a lack of jurisdiction was the view that cl 5B(1)(d) of the Regulation was clear in its terms in exempting a casual employee, like Ms Wilding, who had less than 6 months' service from the scope of the unfair dismissals provisions in Pt 6 of Ch 2. Unfortunately, the commissioner's decision did not contain any reasons leading to that conclusion and, so, it was fully argued on appeal. The written submissions for the appellant put by Mr Rogers summarised the argument against the commissioner's finding as follows : 4.8 Contrary to the view of the Commissioner, Regulation 5B(1)(d) does not exempt from the operation of Part 6 of the Act casual workers (or employees engaged on a casual basis) " with less than six months service".

4.9 The persons it exempts are persons engaged " for a short period ".

4.10 The remaining provisions of the Regulation (subparagraphs (i) and (ii)) do no more than create an exception to the primary proposition that employees engaged on a casual basis for a short period are to be excluded from the operation of Part 6.

4.11 The reference in Regulation 5B(1)(d)(i) to " a period of at least 6 months" does not declare such a period to be a short period and nor could it validly do so.

4.12 What Regulation 5B(1)(d) does is to recognise the possibility that 6 months may be a short period but provides that, if it is, the prima facie exclusion for " employees engaged on a casual basis for a short period" is not to operate. It is submitted that, prima facie, an engagement for 6 months will not generally be an engagement for a short period.

4.13 There is nothing express or implicit in the Act which suggests an intention that a so-called "short period" may be determined by the regulation-making authority.

4.14 Whether or not a period is a short period is a question for determination in the circumstances of each case having regard to the industry, the arrangements entered into between the parties, the purpose for which the person is engaged and sundry other matters.

4.15 Had Parliament intended that 6 months (or any period) was to be a short period, it need only have so stipulated in the legislation.

4.16 Had it intended to give to the regulatory authority the power to determine a short period it may similarly have so stipulated.

4.17 As earlier stated, if Regulation 5B(1)(d) were to have the effect suggested by the Commissioner, it would be invalid as beyond power.

4.18 There was no evidence before the learned Commissioner which would have allowed him to form the view that Ms Wilding was engaged for a short period within the meaning of section 83(2). 24 Consistent with the commissioner's approach, Mr Hatcher in his written submissions also took the point that cl 5B was "clear on its face" in making out the position "that a period of less than six months is, by definition, a short period", although counsel conceded for the purposes of the clause that a longer period "still may be a short period". In the result, the undisputed period of 11 weeks during which Ms Wilding was engaged was "a period that cannot be characterised as other than a short period". Mr Hatcher developed the respondent's view during oral argument on appeal and said that "a person engaged on a casual basis for less than 6 months, without more, is excluded" by reason of the reference in cl 5B(1)(d)(i) to "periods of employment during a period of at least 6 months". 25 We agree with the joint submission of the parties that the operative provisions of the statute and of the Regulation are clear on their face. Were it not for cl 5B(1)(d) of the Regulation there would be no issue other than that Ms Wilding could bring her claim and it would be open for the Commission to validly determine it by making orders under s 89. That must be so, it seems to us, because her dismissal was within s 83(1) as a dismissal to which Pt 6 of Ch 2 applied. Any exemption therefrom must come, if at all on the present facts, from the terms of the Regulation which, as s 83(2) says, "exempt …employees engaged on a casual basis for a short period". 26 In our view, any regulation made to give effect to that statutory facility to exempt from coverage must be limited to casual employees engaged for "a short period". Put another way, any regulation made to exempt a casual employee must be restricted to that authorised by the statute, and within its terms, but not so as to extend the authorising provisions of the statute to exempt persons not included within its permitted limits: see Carbines v Powell (1925) 36 CLR 88 at p 92 per Isaacs J and at p 95 per Higgins J where his Honour shortly stated that the offending regulation there "oversteps the Act". In that same case, Starke J commented that "the regulations they refer to must be regulations convenient for carrying out the purposes of the Act, that is, the transmission and receipt of wireless messages, and not the purpose of manufacturing plant" (36 CLR at p 97). Applying that reasoning to the instant case, a purpose of the Industrial Relations Act is to enable a casual employee to bring a claim for unfair dismissal except where a regulation be made exempting a casual employee engaged "for a short period". Any extension or restrictive refinement of that fundamental purpose by a regulation would result, in our view, in the regulation being invalid. So viewed, cl 5B(1)(d) may properly be construed in a manner consistent with s 83(2)(c). 27 The construction we place on the clause in terms of its plain meaning may be stated thus for the purposes of s 83(2)(c) of the Industrial Relations Act - · Employees engaged on a casual basis for a short period may be exempted from Pt 6 of Ch 2 by the regulations: s 83(2)(c). · Employees engaged on a casual basis for a short period, except if the casual employee meets certain specified conditions, are exempt from the unfair dismissals provisions: cl 5B(1)(d). · A casual employee otherwise so exempt by being engaged for a short period is nevertheless able to bring an unfair dismissal claim if two specified conditions in cl 5B(1)(d) are satisfied, namely: (i) the employee concerned is engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months (sub-para (i)), and

(ii) would, if not dismissed, have had a reasonable expectation of continuing employment with that employer (sub-para (ii)). 28 Shortly stated, that means a casual employee engaged for "a short period" and who would therefore be exempt is saved if the employee satisfies both sub-paras (i) and (ii). The essential enquiry, however, is whether the casual employee has been engaged for a short period - if not, then the specified conditions do not have to be considered as the employee concerned is not exempted from bringing a valid claim. Viewed in that way, we see no support for the proposition that the provision in the Regulation excludes a casual employee who has not been employed by an employer for a period of less than 6 months. The only exclusion contained in the Regulation, and consistent with the statute, is for a casual employee engaged for a short period unless the employee is saved by having had regular and systematic periods of employment during a period of at least 6 months (and even though such period may be "a short period") and had a reasonable expectation of continuing employment. In other words, the executive in making the Regulation has, as we think it is entitled to do, granted a limited exemption from the benefits of the statute in relation to casual employees engaged for a short period. What the Regulation has not done, and what we do not think it could do, is to say that engagement on a casual basis for a period of less than 6 months is necessarily engagement for a short period. 29 Whether any particular period of employment is within the statutory phrase of "a short period" is, of course, a mixed question of law and fact to be determined in all the circumstances of a case arising: see NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at p 512. However, where a statute, as here, uses the words "a short period" according to their common understanding, then whether Ms Wilding's employment over a period of 11 weeks was or was not a short period makes the ultimate question one of fact where it is not unreasonable in the circumstances to hold either way: see Hope v Bathurst City Council (1980) 144 CLR 1 at pp 7-8 and the analysis made by the Full Bench of the Commission in Clarkson v Dent (84 IR at pp 252-253). Regrettably, in the present case the state of the facts does not permit a determination whether 11 weeks was a short period. Indeed, one can imagine cases arising in some employments where such a period would be a relatively long time and in other cases where it would not. A determination of that question, therefore, may only appropriately be made, not on appeal in these proceedings, but after a determination at first instance in light of all the facts relating to the employment and the industry concerned. 30 The construction we have given to cl 5B(1)(d) of the Regulation accords with that advanced for the appellant by Mr Rogers . The decision of Elder C which held that "any casual worker with less than six months service" was excluded so as to remove the jurisdiction of the Commission to determine a claim for unfair dismissal was erroneous. Ground 1, therefore, has been made out. 31 In the result, the appeal should be upheld and the matter remitted to be dealt with by a member of the Commission sitting alone in accordance with these reasons. 32 We make the following orders- 1. Leave to appeal is granted, other than as to whether Leanne Rosemary Wilding was engaged on a casual basis and whether Elder C failed to give any, or any adequate, reasons for his decision. 2. The appeal to the extent to which leave has been granted is upheld. The decision made by Elder C on 8 December 1999 and published by him on 21 December 1999 is quashed. 3. The appellant's claim relating to the alleged unfair dismissal of its member, Ms Wilding, is referred to the President for allocation to a member of the Commission sitting alone to hear and determine in accordance with the reasons given on appeal. ________________

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