FEDERAL COURT OF AUSTRALIA

Industrial Law – termination of employment – jurisdiction of the Court to entertain an application made under s 170EA of the Workplace Relations Act 1996 (Cth) after repeal of that section

Industrial Relations Act 1996 (Cth), ss 170EA, 430

Workplace Relations and Other Legislation Amendment Act 1966 (Cth), s 4 and Schedule 6

Acts Interpretation Act 1901 (Cth), s 8

Anastasas v Carillon Kebabs (1996) 71 IR 215 cited

Victoria v The Commonwealth (1996) 187 CLR 416 cited

Matter No. SG 100 of 1997

KAZIMIR KOWALSKI v MITSUBISHI MOTORS AUSTRALIA LIMITED

VON DOUSSA J

ADELAIDE

16 OCTOBER 1998

THE COURT ORDERS THAT:

The application be dismissed.

Note:                Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

On 18 December 1997 the applicant, Mr Kowalski, filed an application purportedly made under the “Industrial Relations Act 1988 (Cth), section 170EA”.  The application sought an extension of time within which to issue proceedings for “unfair dismissal, or unlawful dismissal on the 31^st of March 1994”.  The respondent, Mitsubishi Motors Australia Limited (“Mitsubishi”) contends that this Court has no jurisdiction to entertain an application made after 31 December 1996 under s 170EA of the Workplace Relations Act 1996 (Cth) (“the Act”) (formerly the Industrial Relations Act 1988).  Mitsubishi seeks an order summarily dismissing the application.

By way of background, Mr Kowalski was employed for many years at Mitsubishi as a production engineer.  Affidavit material filed by him in support of his application states that he suffered a back injury in May 1989, and later suffered a mental breakdown as a result of the back injury.  By 16 March 1994 he had been absent from work for a prolonged period.  On that day he received a letter from Mitsubishi informing him that as he continued to be unfit for his normal duties his “contract of employment with the company is frustrated”.  The letter said: “On that ground, your contract of employment with the company is now at an end, and accordingly you are no longer required to report for work”.

The provisions of Part VIA, Division 3, Subdivision C of the Industrial Relations Act 1988 (which I shall refer to as “Subdivision C”) came into operation on 30 March 1994.

On 6 April 1994 the industrial organisation of which Mr Kowalski was a member notified the Australian Industrial Relations Commission (“the AIRC”) pursuant to s 99 of the Act of the existence of an alleged industrial dispute affecting Mr Kowalski and Mitsubishi relating to Mitsubishi’s assertion on 16 March 1994 that Mr Kowalski’s contract of employment had been frustrated.  On 8 April 1994 the proceedings before the AIRC were adjourned by a Commissioner sine die, but with liberty to have the matter relisted at any time.

Over the ensuing months Mr Kowalski pursued various avenues for relief against Mitsubishi.  Towards the end of 1997 the proceedings before the AIRC were relisted.  In November 1997 Mr Kowalski discovered that Mitsubishi had issued a Statement of Termination Payment for income tax purposes which stated that his employment was terminated on 31 March 1994.  If that fact were the case, and had Mr Kowalski been aware in 1994 that his employment was terminated on that date, after the commencement of Subdivision C, he could at that stage have issued proceedings under s 170EA seeking a remedy in respect of the termination of his employment.  Mr Kowalski says that his solicitor was informed by a Commissioner of the AIRC on 4 December 1997 that a remedy under Subdivision C should have been sought through the courts.

It was these events which caused Mr Kowalski to issue the application now before the Court on 18 December 1997.  In its terms the application seeks an extension of time within which to institute proceedings under s 170EA.  Subsection 170EA(3) reads:

“170EA(3)      An application must be made:

(a)       within 14 days after the employee receives written notice of the termination; or

(b)       within such further period as the Court allows on an application made during or after those 14 days.”

In the extensive factual material filed by Mr Kowalski there is no reference to any communication passing between Mitsubishi and Mr Kowalski that could constitute “written notice of the termination” if termination occurred on 31 March 1994.  If Mr Kowalski is correct in his assertions that his contract of employment was not frustrated, but was terminated on 31 March 1994, in the absence of written notice of the termination being given to him, no time limit applied under s 170EA(3): Anastasas v Carillon Kebabs (1996) 71 IR 215.  For the purpose of the respondent’s contention that this Court is without jurisdiction, Mr Kowalski’s application should be treated as a substantive application made under s 170EA for relief of the kind provided for in Subdivision C.  The issue which this Court must now decide is whether the Court on 18 December 1997 had jurisdiction to consider an application under s 170EA.

The legislative history of s 170EA is as follows:

·          Subdivision C was inserted into the Industrial Relations Act 1988 by the Industrial Relations Reform Act (Cth) 1993.  Section 170EA falls within Subdivision C which, as noted above, came into operation on 30 March 1994.

·          Subdivision C was amended by the Industrial Relations and other Legislation Amendment Act 1995 (Cth) (Act No. 168 of 1995).  These amendments came into operation on 15 January 1996.

·          Subdivision C was repealed by the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) (Act No. 60 of 1996) (“the 1996 Amendment Act”) with effect from 31 December 1996.  Schedule 6 of the 1996 Amendment Act, by item 5, effected the repeal and substituted new provisions relating to termination of employment.  The amendments had the effect of abolishing the former provisions in respect of termination of employment, and substituting new rights, remedies and procedures. 

·          It should also be noted that between 30 March 1994 and 27 May 1997 “The Court” referred to in the Act was the Industrial Relations Court of Australia.  By the 1996 Amendment Act the jurisdictions formerly vested in and exercised by the Industrial Relations Court of Australia were transferred to this Court with effect from 26 May 1997.  The relevant transitional provisions are to be found in Schedule 16 of the 1996 Amendment Act.  For present purposes nothing turns on the transfer of jurisdiction or the definition of “The Court”.

Item 17 of Schedule 6 of the 1996 Amendment Act makes provision for the application of the new provisions relating to termination of employment, and for transitional provisions.  Relevantly, Item 17 provides:

“(1)     Subject to this item and other provisions in this Act, the Workplace Relations Act as amended by this Schedule applies to terminations of employment occurring on or after 30 March 1994.

(2)       The Workplace Relations Act as amended by this Schedule does not apply to a termination of employment occurring before the commencement of this Schedule if an application was made in respect of that termination under section 170EA of the Workplace Relations Act as in force at any time before that commencement.

(3)       Subject to Schedule 16 and any provision in an Act, if an application was made under section 170EA of the Workplace Relations Act as in force at any time before the commencement of this Schedule, that Act as so in force continues to be in force in respect of any proceeding arising from that application.

(4)       …

(5)       …”

The references in Item 17 to “the Workplace Relations Act” means, so far as the context relates to a time before the day on which the 1996 Amendment Act  received the Royal assent, the Industrial Relations Act 1988 as in force at that time, and otherwise, the Workplace Relations Act 1996: see s 4 of the 1996 Amendment Act.

Pursuant to clause (1) of Item 17, the substituted provisions relating to termination of employment in the Workplace Relations Act apply from 31 December 1996 to terminations of employment occurring on or after 30 March 1994, save to the extent provided in clauses (2) and (3).  In the present case however no application was made by Mr Kowalski under s 170EA before 31 December 1996.  Hence the saving provisions of clauses (2) and (3) have no application.

In my opinion, Mitsubishi is correct in its contention that, by force of clause (1) of Item 17 of Schedule 6, s 170EA of the former legislation no longer had any operation when Mr Kowalski filed his application on 18 December 1997, even in respect of a termination which occurred before the repeal of Subdivision C.

I consider that the cause of action which Mr Kowalski may have had under Subdivision C prior to 31 December 1996 in respect of the termination of his employment, assuming termination occurred on 31 March 1994, is not preserved by s 8 of the Acts Interpretation Act 1901 (Cth).  Section 8 provides that:

“8.       Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not:

(a)        …

(b)        …

(c)        affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or

(d)        …

(e)        …

            and any such investigation legal proceeding or remedy may be instituted continued or enforced, and any such penalty forfeiture or punishment may be imposed, as if the repealing Act had not been passed.”

In the present case, the transitional provisions contained in Item 17 of Schedule 6 plainly express a contrary intention, namely that rights, privileges, obligations, or liabilities acquired accrued or incurred under the provisions of Subdivision C are not preserved, save in the specific circumstances expressed in clauses (2) and (3) of Item 17.  In all other cases, clause (1) of Item 17 expresses the intention that new rights, remedies and procedures are substituted by the amendments in respect of terminations of employment occurring on or after 30 March 1994.

Of immediate relevance to Mr Kowalski’s position is s 170CE, inserted by the amendments effected by Schedule 6, which creates a right in an employee whose employment has been terminated by the employer to apply to the AIRC for relief in respect of the termination of that employment on the ground that the termination was harsh unjust or unreasonable, or on the ground of an alleged contravention of ss 170CK, 170CL, 170CM or 170CN of the amended Act, or on any combination of those grounds.  Section 170CE(7), imposes a time limit within which an application must be lodged, namely within 21 days after the day on which the termination took effect.  However, s 170CE(8) empowers the AIRC to accept an application that is lodged out of time if the AIRC considers that it would be unfair not to do so.

The rights, remedies and procedures substituted by Schedule 6 in respect of the termination of employment do not include any provision for initiating an application for relief in the Federal Court of Australia on the grounds previously available on application made under the former s 170EA.

The jurisdiction of the Court which Mr Kowalski seeks to invoke by his application issued on 18 December 1997 was abolished with effect from 31 December 1996, subject only to the saving provisions in Item 17, clauses (2) and (3) of Schedule 6 which have no application in this case.  The application must therefore be dismissed.

Mr Kowalski argues that the dismissal of the present application will have the effect of denying him “natural justice”, as he will be denied a hearing on the merits of Mitsubishi’s assertion that his contract of employment became frustrated prior to 16 March 1994, and on the merits of his contention that his employment was terminated at the initiative of the employer on 31 March 1994.  He contends that he would also be denied the opportunity of pursuing a remedy in respect of the termination of his employment.  The amendments to the Industrial Relations Act effected by Schedule 6 of the 1996 Amendment Act do not necessarily have this consequence.  The amendments do not purport to abolish altogether the right of an employee to raise issues regarding the lawfulness and fairness of a termination of employment.  Rather, the jurisdiction in which to do so is, in the first instance, vested exclusively in the AIRC.  Whilst rights that Mr Kowalski may have had immediately prior to 31 December 1996 have been abolished, others have been substituted, including the right to seek an extension of time within which to complain to the AIRC that the termination was harsh unjust or unreasonable – a ground not open under s 170EA following the decision of the High Court of Australia in Victoria v The Commonwealth (1996) 187 CLR 416.

At the conclusion of the hearing Mr Kowalski sought leave to file further written submissions, which was granted.  The written submissions made by Mr Kowalski are lengthy.  I have considered them closely, but in my opinion they do not answer the submissions made by Mitsubishi which I have accepted.  Many of the arguments advanced by Mr Kowalski confuse the jurisdictions and powers of the AIRC and the Federal Court and invites the Court to exercise powers which it does not have.  In particular, several of his arguments urge this Court to deem the proceedings commenced in the AIRC on 8 April 1994 to be proceedings issued under s 170EA in this Court.  This Court has no power to make an order to that effect.

Several of the arguments assert that the Federal Court should grant relief in its associated jurisdiction pursuant to s 430(1) of the Act.  However, the jurisdiction under s 430(1) only arises where the jurisdiction of the Court is otherwise invoked by an application regularly brought within its jurisdiction.  Here there is no such application with which causes of action otherwise outside the jurisdiction of the Court can be associated.  Other submissions argue that Mr Kowalski has causes of action in tort and contract against Mitsubishi in respect of which the Court is invited to extend time for the commencement of proceedings.  The causes of action are beyond the claims made in the present proceedings.  They are claims of a kind which appropriately fall within the jurisdiction of the State Courts.  Should Mr Kowalski wish to pursue them he must endeavour to do so in other proceedings properly framed for that purpose in which he also seeks whatever extensions of time might be necessary.

For these reasons the application is dismissed.

Associate:

Dated:             

The Applicant appeared in person

Counsel for the Respondent                  :           Ms R A Layton QC

Solicitor for the Respondent                  :           Fountain & Bonig

Date of Hearing                                    :           28 September 1998

Date of Judgment                                  :           16 October 1998