DECISION NO:650/96

IN THE INDUSTRIAL RELATIONS COURT

OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VI 1870 of 1996

B E T W E E N:

Robyn PATRICK

Applicant

A N D

BRIGHTON BAY PTY LTD

Respondent

REASONS FOR DECISION

6  DECEMBER  1996                                                                PARKINSON JR

This is a decision in relation to an application for enforcement of an agreement to comply with the terms of an Award made by Commissioner Foggo of the Australian Industrial Relations Commission (‘the Commission’) on 4 March, 1996, the order being issued on 24 May, 1996. The Award was made upon a consent arbitration conducted pursuant to Section 17OEC(1) of the Workplace Relations Act 1988.  The respondent filed a defence in relation to the s170ECB application and on 26 August, 1996 by way of a Notice of Motion sought orders and a declaration that the orders made by Commissioner Foggo on 24 May, 1996 were without power and that such orders be set aside. The application made pursuant to s170ECB(1) was heard on 15 November, 1996 together with the notice of motion of the respondent. These are my reasons for decision.

On 9 February, 1996 the parties elected pursuant to s170EB(2) of the Act to have the matter of the alleged unlawful termination of the applicant’s employment dealt with by consent arbitration by the Commission.  The parties acknowledged that the mutual consent of the parties constituted an agreement between the parties:

              (a)     to submit this matter to the process of consent arbitration by the Commission;

              (b)     to comply with any requirement of the Commission for the purpose of the arbitration;

              (c)     to comply with any award made by the Commission on the arbitration;

                        and

              (d)     if that award is taken on appeal to a Full Bench of the Commission to comply with the award as confirmed, varied or substituted on appeal. 

The Award made by the Commissioner on 24 May, 1996 (Print N1958) is as

follows:

“   I hereby award as a result of Consent Arbitration, that the respondent Brighton Bay Pty Limited t/a Gestetner Computer Products pay Robyn Patrick the following:

     First, the company is to provide to Mrs Patrick a separation certificate which is required by law in any case, also a statement of service and a reference.

     Second, as final payment of the termination the company is to pay seven weks based on a salary of $36,500.00.

     Third, it is also to pay the agreed amount that the company has in fact itself put forward, the accrued annual leave of 11.6 days.

     It is my preference that the parties settle this matter within 14 days but, indeed, 30 days is permissible but I believe that under the circumstances it would be better to have these matters resolved as soon as possible.                         ”

No appeal was filed by the respondent against the Award made by the Commissioner upon the consent arbitration. Section 170ECA and Regulation 30DAB of the Act provide the grounds upon which an appeal may be lodged against a decision made upon Consent Arbitration. The grounds for such appeal are that the Commission was in error in deciding under subsection 170EC(4) of the Act to make the Award. 

On 29 March, 1996 the respondent made part payment upon the Award of the Commissioner.  That payment was for a sum of $ 1,954.78. Various deductions had been made at the instance of the respondent for matters described by the respondent as taxation obligations and payments on leave and other entitlements allegedly already made.  It is clear that the terms of the Award do not contemplate any deductions being made by the respondent from the amount ordered to be paid. 

The applicant contends that an Award in the terms contemplated by the agreement of 7 February, was made by the Commission on 24 May, 1996.  The applicant seeks to enforce the terms of the agreement that the parties comply with any Award made by the Commission on the arbitration.  The respondent contends that the Award made was not an Award contemplated by the terms of the agreement and consequently the Court has no jurisdiction to enforce the agreement between the parties, by making an order in the terms of the Award.  The respondent contends that the Commissioner in finding in her decision that

It is appropriate to set out in part the respondent’s contentions in this regard.

Paragraph 6; -

‘The agreement in respect of which the applicant is seeking an order to enforce in this proceeding is not the agreement constituted by the election to which the parties subscribed on 9 February 1996 to have the matter the subject of the application under s170EA dealt with by consent arbitration.  The award made under the agreement, namely the one to which the parties subscribed on 9 February 1996 was that:

“the application for unlawful termination on behalf of Mrs. Robyn Patrick is not granted.”     

Commissioner Foggo thereby made an award consistently with the terms of s170EC(4)(b) of the Act that there was no entitlement to remedy of the kind able to be granted by the Court under s170EE.            ’

Paragraph 7;

‘The purported order of Commissioner Foggo made or given on 24 May, 1996 was not an award that provides for remedies of a kind able to be granted by the Court under s170EE of the Act and was not an award in a consent arbitration with which the respondent agreed to comply. The kind of orders which may be made under s170EE are orders for reinstatement or compensation in respect of a contravention of Division 3 of Part VIA of the Act.         ’

The applicant contends that the Award made by the Commissioner is within the scope contemplated by the agreement between the parties.  In this regard particular reference is made to the use of the term “of the type which may be made by the Court pursuant to s170EE of the  Act.”  It was submitted that s170DB of the Act provides a basis for the Award made by the Commissioner, in that the section contemplates remedies in respect of minimum notice entitlements upon termination of employment.  It was submitted that the Commissioner was within power in ordering payments be made on account of notice entitlements.  It was further submitted that s170EC(6) is a privative clause operating to protect the validity of the Award made provided it is made bona fide and is reasonably referable to the statute. I turn now to my conclusions in relation to first the nature of the Award made and its statutory basis.

Firstly, however inelegant the language, it is clear from the Award and the decision of the Commissioner, that the Commissioner made an order for the provision of adequate notice as a consequence of the termination of her employment and an order that the respondent pay to the applicant her outstanding entitlements upon termination of the employment. It is also clear from the terms of the Award made that these were the matters the subject of the Award. I am satisfied that the provisions of the agreement between the parties contemplate that the Commission exercise those powers provided for by the statute. In this regard specific reference is made in s170EC(3) to the termination of employment convention and by that section, the commission is empowered to exercise such powers on consent arbitration consistent with the termination of employment convention as are prescribed. The exercise of the power to Award what is determined by the Commission to be an adequate or proper period of notice, to ensure payment of accrued entitlements upon termination and to order the provision of a reference or statement of employment, is consistent with the provisions of s170DB  and s170EE(3) and (5) of the Act and the terms of Articles 12 and 13 of the Termination of Employment Convention at Schedule 10 and the Recommendation No 166 at Schedule 11 in respect to severance allowances and income protection, including payment of entitlements upon termination of employment. In particular it the Award made  referrable to the provisions of s170DB(4) which provides:

            ‘The amount of compensation instead of notice must equal or exceed(my italics) the total of all amounts that if the employee’s employment had continued until the end of the required period of notice, the employer would have become liable to pay to the employee because of the employment continuing during that period.            ’

It is not clear from the decision reached or more relevantly the Award made on 24 May, 1996, that the Commissioner was not exercising powers pursuant to the agreement for consent arbitration. The subject matter of the Award was the matter of the type and extent of payments to which the applicant was entitled upon termination of the employment and at the termination of the  employment. In my view these matters are matters of the type contemplated by s170DB of the Act and the amounts which were made the subject of the Award were for remedies of the type able to be awarded by the Court pursuant to s170EE of the Act. The provisions of s170DB operate notwithstanding that no contravention of s170DE(1) is found to exist. So to do the provisions of s170EE(5) of the Act. I am also satisfied that the Award of the Commission is for an amount which is ascertainable on the face of the order and does not suffer from any lack of certainty as to the amount. In this regard  I am satisfied that the Award made by the Commissioner was made in conformity with the powers contained in the Act and in conformity with the terms of the agreement for consent arbitration entered between the parties on  9 February, 1996.

I have also considered the operation of s170EC (6) of the Act and am satisfied that, whilst expressed in different and more limited terms, this provision operates to protect the integrity of an Award made on consent arbitration, in a similar manner to that of s150 of the Act (formerly Section 60 of the Conciliation and Arbitration Act 1904 (Cth)) The operation of that section was the subject of consideration in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 and O’Toole v Charles David Proprietary Limited (1990) 171 CLR 232. In an application of the criteria set out in Hickman it is apparent that the exercise of the powers by the Commissioner were bona fide, and reasonably referable to the powers vested in the Commission both by the Statute and pursuant to the agreement between the parties. My observations in relation to the nature of the Award made set out earlier are the basis for my conclusions in this regard.

Whilst Mr Lacy for the respondent, referred to and relied upon observations by the Commissioner made in the course of the proceedings as to her powers being, ‘absolute, unlimited and untrammelled’, I do not accept that it ought be concluded from these observations that the Commissioner did not exercise her statutory powers other than bona fide and by reference to the Act. My consideration of the Act together with the Award made on 24 May, 1996 lead me to conclude that the powers were exercised bona fide and the nature of the Award made is reasonably referable to the provisions of the Act.

Further, I am not satisfied that it is the function of the Court in enforcing the agreement between the parties to revisit the findings of the Commissioner upon the consent arbitration by reference to either the transcript of the proceedings or any part of them or by an analysis of the contents of the decision of the Commission. There are appeal rights available to the parties which clearly contemplate that the matters of jurisdiction now being raised by the respondent, be pursued in that forum. Subject of course to leave being granted, those appeal rights provide also for the parties to revisit the evidence and the conclusions formed by the Commissioner upon that evidence. These are not steps available to the Court in the consideration of an application made pursuant to s170ECB of the Act.  Whilst the Court exercises a discretion in relation to the nature of the orders it may make upon an application for  enforcement, it is apparent from the statute that the Court is not authorised to revisit the conclusions of the Commissioner. This is not a case where it might be said that it would have been futile for the respondent to take such steps open to it on the statute and pursuant to the agreement. I am of the view that it is implicit in the terms of the agreement between the parties that matters of jurisdiction or issue with the judgment of the Commission at first instance, would be pursued in the appeal forum before a full bench of the Commission.

I have earlier stated my conclusions as to the type of orders made by the Commissioner.  I am satisfied that the Award made was an award of the type contemplated by the agreement between the parties, within power of the Commissioner to make and within the jurisdiction of this Court to enforce. I am satisfied that in so far as the power of the Commissioner is confined, the power exercised was in accordance with the Act and the convention.  I am also satisfied that the powers were exercised bona fide and reasonably so referrable.

I am satisfied that the Court has jurisdiction to enforce the agreement made between the parties and I am further satisfied that the respondent has failed to comply with the terms of the agreement made on 9 February, 1996 and that the application for enforcement of the terms of the agreement, requiring compliance with the Award made by Commissioner Foggo on  24 May, 1996 should be granted. The Court will make a declaration as to the failure of the respondent to comply with the agreement and an order as to damages payable to the applicant by the respondent as a consequence of the failure to comply with the agreement. The amount of the damages will that amount outstanding as unpaid from the Award of Commissioner Foggo contained in the order dated 24 May, 1996.

At the adjournment of the proceeding counsel informed the Court that an agreed figure as to the amount of any judgment would be reached and the Court advised. Alternatively the parties had leave to apply in relation to this matter. Neither step was taken and consequently I have proceeded to decide the appropriate amount. The order of the Commissioner has been calculated by the parties in the course of the proceedings to result in an amount of $6,140.38. This is constituted by seven weeks pay totalling $4,913.46 and 11.6 days accrued annual leave totalling $1,226.92.  I have considered the amount which ought to be the subject of an order and have decided that the order ought be in the sum of $2,955.00.  This is the amount outstanding after account is taken of the amount of $1,954.78 already paid by the respondent to the applicant and the amount of $1,230.60 being the taxation described in the respondent’s defence as already deducted and paid to the Australian Taxation Office on the applicant’s behalf.

The application made pursuant to s170ECB will be granted. The evidence before the Court identifies that the respondent deducted taxation in respect of the entire amount of $6,140.38. Consequently I am satisfied that no account in the orders of this Court ought be made for any taxation liability. The notice of motion of the respondent dated 26 August, 1996 is dismissed. The s170ECB application sought an order for costs. If that application is pursued I propose to hear the parties further in relation to the operation of the various costs provisions in relation to this proceeding and as to the amount of any such order.

I certify that this and the preceding  (7) pages

are a true copy of the reasons for decision of

Judicial Registrar Parkinson.

Associate       :          

Dated              :                                   6  December, 1996

APPEARANCES

Counsel for the applicant                           :           Mr P Ginnane

Solicitors for the applicant                         :           Michael Coldham & Assoc.

Counsel appearing for the respondent      :           Mr B Lacy

Solicitors for the respondent                      :           MacPherson & Kelley

Date of hearing                                             :           15 November 1996