100213864

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES GLENN WILLIAM ROGERS

APPLICANT

 -v-

 DMW CONSTRUCTIONS PTY LTD

RESPONDENT

CORAM Cicchini IM

DATE OF DECISION THURSDAY, 26 SEPTEMBER 2002

FILE NO/S M 153 OF 2002

CITATION NO. 2002 WAIRC 06879

_______________________________________________________________________________

Result  That this Court is without jurisdiction

Representation Mr I Gregory (of Counsel) instructed by Bruce Havilah and Associates appeared for the Claimant.

Mr S Kemp (of Counsel) appeared for the Respondent.

_______________________________________________________________________________

Reasons for Decision

Claim and Response

By his claim filed on 26 April 2002, Glenn Rogers seeks to recover $8000.00 in compensation by reason of the Respondent’s alleged harsh, oppressive or unfair dismissal of him on 28 March 2002.  The claim is brought pursuant to section 51 of the Workplace Agreements Act 1993 (the Act) as it was prior to it being recently amended.  The amendments came into force on the 15 August 2002.  My references to the Act in this matter are references to the same, as it was when the cause of action arose.

Section 51 of the Act is found within Division 1 of Part 5 of the Act.  Division 1 is entitled “Enforcement in industrial magistrate’s court”.

Section 51 provides:

Unfair dismissal

51.  (1)  Where –

(a)     a person who was a party to a workplace agreement as an employee claims that he or she has been unfairly dismissed from employment in breach of the provision implied in the agreement by section 18; and

(b)     section 7G (1)(b) of the Industrial Relations Act 1979 does not apply,

the person dismissed may bring an action in an industrial magistrate’s court against the employer for relief in respect of that dismissal.

“Workplace agreement” is specifically defined for the purposes of proceedings under Division 1 of Part 5 of the Act.  In that regard section 49 provides:

Definitions

49. In this Division — 

 “workplace agreement” means a workplace agreement that has been registered under Division 4 of Part 2 or under section 40I, and includes a contract of employment that is governed by that agreement.

It is axiomatic having regard to the definition of “workplace agreement” in section 49 that proceedings pursuant to section 51 can only be brought with respect to a workplace agreement that has been registered.

The Respondent opposes the claim on jurisdictional grounds and on the merits.

Interlocutory Application

On 23 August 2002 the Respondent filed an interlocutory application seeking orders that:

1. The claim be dismissed with costs, or alternatively
2. That the Clerk of the Court be directed to list the jurisdictional objection for hearing as a preliminary matter prior to listing the matter for a hearing on the merits.

On 24 July 2002, Mr Michiel de Ruyter, a director of the Respondent, swore an affidavit in support of the application.  In his affidavit Mr de Ruyter said, inter alia, that by letter dated 2 April 2002 a delegate of the Commissioner of Workplace Agreements had informed the Respondent that the registration of the workplace agreement between the Claimant and the Respondent had been refused.  In that letter, which was annexed to Mr Ruyter’s affidavit, Tina Whitton a delegate of the Commissioner said:

“Under Section 33 the agreement signed by the employee(s) listed on the attached schedule ceases to have effect from 28 March, 2002.”

The schedule referred to the Claimant.

The Respondent submits that at the time the Claimant was dismissed on 28 March 2002 there was no agreement in effect under the Act and, accordingly, that this Court has no jurisdiction to hear and determine the Claimant’s claim.  The Respondent says that the issue of jurisdiction ought to be determined as a preliminary issue, given that it is a discrete legal issue founded on the undisputed fact of termination having occurred on 28 March 2002.  Accordingly, the question on the Respondent’s view is one of the legal consequences of termination having occurred on the same day as the day on which it was said that the workplace agreement ceased to have effect.

The Claimant opposed the application.  In his affidavit sworn on 7 September 2002, Mr Rogers said, inter alia, that he had signed a workplace agreement on 5 March 2002.  He understood that the agreement was sent to the Commissioner for registration.  He accordingly commenced working for the Respondent understanding that the workplace agreement governed and controlled the employment relationship.  On 11 March 2002 he received advice from the Commissioner that the agreement had been received for registration and that it may be registered on 25 March 2002.  Subsequently, at midday on 28 March 2002 his employment was terminated.  At that time he believed the agreement to be registered.  Indeed it was not until 3 April 2002 that he received notification from the Commissioner of Workplace Agreements that registration had been refused and the agreement had ceased to have effect from 28 March 2002.

Mr Rogers believes, as a result of inquiries made, that the reason registration was refused was because the Respondent had contacted the Commissioner requesting the Commissioner not to register the workplace agreement.  The Claimant contends that the Respondent has orchestrated the refusal to register the agreement in order to prejudice him.

In submissions, the Claimant suggests that the Respondent’s argument hinges on the interpretation of the word “from’.  In that regard the Claimant relies on the application of section 61(1)(b) of the Interpretation Act 1984 to support his contention that the Respondent’s interlocutory application is entirely without merit and has been brought frivolously and vexatiously.

Section 61 of the Interpretation Act 1984 is found in Part VIII of that Act which is headed “Provisions regarding time and distance”.  Section 61 itself is headed “Computation of time”.  Section 61(1)(b) provides:

61.  Computation of time

(1) In computing time for the purposes of a written law — 

 (a)  …

 (b) where a period of time is expressed to be reckoned from, or after, a specified day, that day shall not be included in the period;

      (c)  -  (h) …

On the Claimant’s view, an application of section 61(1)(b) of the Interpretation Act 1984 to section 33(1)(a) of the Act results in the workplace agreement ceasing to have effect on 29 March 2002 and not 28 March 2002 as suggested by the Respondent.  Relevantly, section 33 of the Act provides:

Position where an agreement is refused registration

33.  (1)  Where an individual workplace agreement or an agreement under section 23(1) is lodged under section 29 but registration is refused by the Commissioner –

(a)  the agreement ceases to have effect for the purposes of this Act as from the day of that refusal; and

(b)  either party may, subject to subsection (2), recover from the other under section 52 any amount which, if the agreement had not taken effect, he or she –

(i)  would have been entitled to receive; or

(ii) would not have been required to pay,

as the case may be, in respect of the period between the day when the agreement took effect and the day on which registration is refused.

(2)  The entitlement of an employee is to be determined for the purposes of subsection (1) as if any relevant award provision applied to the employee during the period referred to in that subsection or in section 35(5).

The Claimant argued that, given that the jurisdictional issue is so clear cut, it would be in the interests of both parties to have that issue determined at the beginning of the trial.  The splitting of the issues would necessarily increase the Claimant’s costs.  The whole application, on the Claimant’s view, was calculated to prejudice his interests and expose him to greater costs.

Determination of Interlocutory Application

Having heard from the parties, I determined the interlocutory application on an extempore basis.  In so doing I referred to the decision of the High Court in Tepko Pty Ltd and Others v Water Board (2001) 178 ALR 634 in which their Honours Kirby and Callinan JJ said at paragraph 170:

“Single-issue trials should, in our opinion, only be embarked upon when their utility, economy, and fairness to the parties are beyond question.”

The applicant in the interlocutory application had the onerous task of persuading me that the issue of jurisdiction should be determined prior to trial.  Notwithstanding that, I acceded to the application.  I did so because the issue to be determined is a discrete legal issue based on an uncontroverted fact.  The uncontroverted fact being that the Commissioner of Workplace Agreements refused registration on 28 March 2002.  The issue that flows from that is the legal effect of the Commissioner’s refusal.  The determination of the issue may well determine the final outcome of the matter.  The expense of otherwise getting the matter ready for trial might well be wasted for both sides if I were to find in favour of the Respondent.

In the circumstances it appeared to me that the utility, economy and fairness to the parties was beyond question and required me to accede to the Respondent’s application.

Jurisdiction

Given my determination on the interlocutory application, the parties agreed to argue the substantive merits of the jurisdictional question then and there.  Both were in a position to do so and were desirous of arguing the matter at that stage in order to save further costs.  I accordingly proceeded to hear and determine the substantive merits of the jurisdictional issue following the determination of the interlocutory application..

Mr Kemp, for the Respondent, submitted that the words in section 33(1)(a) of the Act make it clear that the agreement between the parties ceased to have effect “as from” the day of refusal.  “As from” is defined in “The Australia Oxford Dictionary” to mean:

“on and after (a specified date)”

Accordingly, the agreement ceased to have effect on and after 28 March 2002.

The Respondent also suggests that section 61(1)(b) of the Interpretation Act 1984 has no practical application given the factual circumstances of this case.  In that regard it is argued that the section relates only to the computation of time.  It assists in fixing a commencement of a period during which time runs, however, in the present circumstance it is not the running of time that is material, but rather the happening of an event.  A computation of time in the circumstances, it is submitted, is not necessary.

The Respondent further argues that an application under section 51(1) of the Act can only be brought with respect to a registered workplace agreement.  He cites my decision in Butler v Cannon Foods 80 WAIG 3044 as authority for that proposition.  It is suggested that the Claimant’s remedy lies with the Western Australian Industrial Relations Commission rather than this Court.

The Claimant, in response, argues that section 61(1) of the Interpretation Act 1984 applies to an event such as the dismissal in this case in that it assists in the determination of the commencement of the period from which the workplace agreement ceased to have effect.  It is submitted that the effect of the refusal to register the agreement on 28 March 2002 meant that the workplace agreement ceased to have effect from midnight on 28 March 2002.  Mr Gregory submitted that if I were to find otherwise, a terrible injustice would result to the Claimant in consequence of acts perpetrated by the Respondent aimed at defeating the Claimant’s rights.

Determination of Jurisdictional Issue

The Claimant has proceeded on the basis that pursuant to section 33(1)(a) of the Act this Court has jurisdiction to hear and determine an unfair dismissal claim with respect to a workplace agreement that was refused registration, provided that the termination occurred at a time prior to the agreement ceasing to have effect.  It seems that the Claimant takes the view that section 33(1)(a) enlivens the jurisdiction of this Court.  Indeed that approach is in keeping with what Commissioner Beech (as he then was) decided in Bastow v Evenstorm Pty Ltd T/A Tensingh’s Restaurant 76 WAIG 4337.  At 4338 Commissioner Beech said:

I also find that the Commissioner of Workplace Agreements refused to register the workplace agreement.  According to the notification of that to the parties, the refusal of registration occurred on the 16th April 1996.  By s.33 of that Act, the workplace agreement ceased to have effect as from that date.  The termination of Mr Bastow took place on the 30th March 1996 during the period when the workplace agreement was in effect, although it was not registered.  It might be thought, and it may have been thought here, that the refusal to register the workplace agreement meant that the parties to it are free to act as though it had never come into effect.  However that is not the case.  Specific provision is made for the payment or recovery of monies which would be due if the workplace agreement had not come into effect but the manner of challenging a dismissal which occurs while an individual workplace agreement is in effect remains unaffected by the refusal to register the workplace agreement.

There is implied in every workplace agreement a provision that the employer must not unfairly, harshly or oppressively dismiss from employment any employee who is a party to the agreement (s.18 of that Act).  Mr Bastow alleges that he has been unfairly, harshly or oppressively dismissed.  Under the Workplace Agreements Act 1993 he must take his claim before an Industrial Magistrate unless the workplace agreement provides for the referral of such claims to the Industrial Relations Commission.  The Commission understands that there is no such provision.  Accordingly, Mr Bastow’s claim that he has been unfairly, harshly or oppressively dismissed may only be made before an Industrial Magistrate.  As he has made his claim to the Commission it must be struck out because the Commission does not have the jurisdiction to deal with it. 

Accordingly the application will be struck out for want of jurisdiction.

I respectfully disagree with the view taken by the Claimant and Commissioner Beech.  The jurisdiction of this Court to deal with and determine matters under the Act is found in Division 1 of Part 5 of the Act as provided for by section 81AA of the Industrial Relations Act 1979.  Those sections enable this Court to deal with unfair dismissal claims and with breaches of workplace agreements.  Section 51 of the Act enables an aggrieved employee who was party to a workplace agreement to bring a claim to this Court on account of unfair dismissal.

Section 49 of the Act specifically defines “workplace agreement” for the purposes of proceedings under Division 1 of Part 5, which includes section 51, to mean

“ … a workplace agreement that has been registered under Division 4 of Part 2 or under section 40I and that  includes a contract of employment that is governed by that agreement.”

The words defining “workplace agreement” in section 49 are plain.  “Workplace agreement” for the purposes of an application pursuant to section 51 of the Act means a workplace agreement “that has been registered”.

The workplace agreement to which this claim relates was never registered.  Accordingly, it does not fit within the definition of “workplace agreement” for the purposes of section 51 of the Act.  I take the view that I do not have jurisdiction to hear and determine an unfair dismissal claim where the workplace agreement has never been registered.  Indeed such approach is in keeping with the scheme of the Act that enables a party to an agreement, which has been refused registration, to recover only award entitlements for the period leading up to the refusal of registration.  The effect of the same is to place parties back in the position in which they would have been had they not entered into the agreement.

Section 33 cannot have the effect of extending the jurisdiction of this Court.  Indeed, it does not purport to do so.  What is does, by virtue of subsections (1)(a) and (b) is to preserve the ability of a party to take action in respect of any claim arising from the employment relationship during the period from the execution of the workplace agreement to the date of refusal of registration.  The Claimant’s recourse, with respect to the alleged unfair dismissal, may lie with the Western Australian Industrial Relations Commission and, if it does, it may be possible, in the light of recent amendments to the Industrial Relations Act 1979 for the Claimant to make application to file his claim out of time.

Even if it could be said that the application of section 33 of the Act has the effect of enlivening this Court’s jurisdiction to hear the matter the Claimant nevertheless must establish that the agreement ceased to have effect after termination occurred.

The Respondent’s submission is that section 61(1)(b) of the Interpretation Act 1984 has no particular relevance to this matter.  That provision relates to the computation of time with respect to a period.  Where a period is expressed to be reckoned from or after a specified day, that day shall not be included in the period.  According to the Respondent section 33(1)(a) of the Act does not relate to a period of time, but rather the happening of an event.  Accordingly, section 61(1)(b) of the Interpretation Act 1984 may not have any relevance.  If it could be said that section 61(1) (b) is relevant on account of computation of time or the happening of an event, it is clear to me that time as expressed in section 33(1)(a) of the Act runs “as from the day of … refusal”.  Time is expressed to be reckoned “as from” as opposed to “from”.  Section 61(1)(b) of the Interpretation Act 1984 relates to periods of time reckoned “from or after, a specified day”.  The distinction of course lies with the inclusion of the word “as” immediately prior to the word “from”.  The inclusion of the word “as” not only has the effect of excluding the operation of section 61(1)(b) of the Interpretation Act 1984, but also results in giving immediacy and possibly retrospective application to the cessation of the effect of the Act on the day of refusal.  I am not dealing in this case with the meaning to be given to the word “from” in isolation or in combination with the words “with effect from” as was the case in Hughes v NM Superannuation Pty Ltd [1993] 29 NSWLR 653 at 667.

Although Hughes (supra) may on an initial reading appear to support the Claimant’s position, it becomes apparent that it is distinguishable by virtue of the words considered.  Indeed, the inclusion of the word “as” before “from” is critically determinative.  In Fowler’s Modern English Usage, Second Edition, Revised by Sir Ernest Gowers (Oxford, At The Clarendon Press 1975) the author considered the usage of the words “as from”.  The author said at page 38:

“An agreement … is often said to come into effect as from a certain date.  That is reasonable if it is retrospective: the agreement is to be treated as if it had been made earlier.  Otherwise the “as” is superfluous.”

The inclusion of the word “as” before the word “from” gives immediate or retrospective effect as opposed to the word “from” on its own or in combination with other words resulting in prospective application.  Otherwise the word “as” before the word “from” is superfluous.  I am of the view that that is the proper approach to be taken in the construction of the words “as from” found in section 33(1)(a) of the Act.  I am fortified in that regard because it is also in keeping with the meaning ascribed to those words, which is to be found in The Australian Oxford Dictionary.

It follows, therefore, that the workplace agreement ceased to have effect on and after the date of refusal of registration, being 28 March 2002.  As a consequence, the Claimant has never had the ability to bring his claim within this jurisdiction.

Conclusion

I find that this Court is without jurisdiction to hear and determine the claim.  I will now hear from the parties as to the orders to be made.

G Cicchini

Industrial Magistrate