Note: Judicial review of this decision [HCA AS21/07] remittal [NSD953/07] - Judicial review discontinued 26 October 2007.

PR974301
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AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996
s.120 - Appeal to Full Bench against the decision of Senior Deputy President Drake at Sydney on 9 August 2006 in C2006/2488 re work performance

ING Administration Pty Ltd

and

Jajoo, Ramsin
(C2006/2957)

Insurance industry

   

VICE PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT ACTON
COMMISSIONER CARGILL

MELBOURNE, 4 DECEMBER 2006

Appeal – jurisdiction of the Commission under dispute settlement procedures – certified agreement – whether an employee can continue to progress a dispute under a dispute settlement process after employment has ceased – no limitations under Act or certified agreement – jurisdiction of the Commission to hear matter being a dispute over application of agreement – argument regarding insufficient reasons given by Senior Deputy President rejected – leave to appeal granted – appeal dismissed – Workplace Relations Act 1996 – s 170LW.

DECISION OF VICE PRESIDENT WATSON AND COMMISSIONER CARGILL

INTRODUCTION

[1] This is an appeal, for which leave is required, by ING Administration Pty Ltd (ING) against a decision of Senior Deputy President Drake handed down on 9 August 2006. The decision under appeal was to the effect that the Commission had jurisdiction to deal with a dispute lodged by a former employee, Mr Jajoo, under the dispute resolution process of the ING Administration Pty Ltd Certified Agreement 2003 (‘the Agreement’), an agreement made under s 170LK of the Workplace Relations Act 1996 (‘the Act’).

[2] Senior Deputy President Drake found that the Commission had jurisdiction to deal with the matter and decided to refer the file to the head of the panel for allocation and conciliation. Prior to that occurring, an appeal was lodged against the decision that the Commission had jurisdiction. The appeal is brought under s 120(1)(f) of the Act on the basis that the decision of Senior Deputy President Drake is a decision of the Commission that the member has jurisdiction in a matter arising under the Act. The appeal was heard on 26 September 2006.

BACKGROUND

[3] This matter arises from a restructure within the ING business. In late 2005, Mr Jajoo raised with ING the issue of whether or not his position had become redundant such that ING was obliged to pay to him severance monies pursuant to the Agreement. Prior to a resolution of these matters, the employment of Mr Jajoo was terminated by the company by a letter dated 25 March 2006. The letter arose from an investigation into allegations regarding his work performance and alleged breaches of ING policy. The matters subject to the investigation and decision to terminate employment appear to be totally unrelated to the issues that were subject to a dispute regarding redundancy and severance monies. In a notice dated 13 April 2006, solicitors for Mr Jajoo gave notice to the Commission under clause 3.15(d) of the Agreement. Clause 3.15 provides as follows:

[4] On receipt of the notification, ING foreshadowed an application that the matter be dismissed because there was no jurisdiction in the Commission to conciliate or arbitrate on the dispute in question. Senior Deputy President Drake heard submissions on the jurisdictional issue from the parties on 16 June 2006 and handed down her decision on 9 August 2006.

[5] In the proceedings before Her Honour, counsel for ING relied on two decisions of single members of the Commission. Both decisions held that dispute resolution clauses in applicable agreements certified by the Commission, did not enable a dispute to be referred to the Commission by an employee who has left the employment in question. After reviewing these authorities and the terms of the Agreement, Senior Deputy President Drake expressed her conclusions in the following terms:

[6] In this appeal counsel for ING, Mr Moses, contends that the decision is in error because it does not provide sufficient reasons for the conclusion reached in the matter, or for rejecting the decisions of Commissioner Cribb and Commissioner Deegan in respect to the issue at hand. It is further contended that the Commission did not have jurisdiction to deal with the dispute because:

ING contends that the Commission should find that it does not have jurisdiction to conciliate and arbitrate the dispute and should therefore allow the appeal and quash the decision of Senior Deputy President Drake.

APPEAL PRINCIPLES

[7] It is common ground that the issues raised for consideration in this appeal relate to Senior Deputy President Drake’s findings of jurisdictional fact, and whether jurisdiction exists for the Commission to exercise powers of conciliation and arbitration in the matter. The decision under appeal is therefore not of a discretionary nature and the Commission on appeal should be concerned with the correctness of the conclusion reached, not whether the conclusion was reasonably open. 1

THE ISSUES IN THE APPEAL

[8] Primary consideration must be given to the question of whether there was in fact jurisdiction of the Commission to deal with the matter further. The facts and circumstances are not in dispute and are of a narrow compass. The conclusion in the appeal is likely to depend on whether we agree with the conclusion that the Commission does have jurisdiction by considering each of the arguments advanced by ING, outlined above, which ING contends leads to the conclusion that no jurisdiction exists in this matter. The arguments include alleged limitations arising from both s 170LW of the Act and the terms of the Agreement. It appears that there is no Full Bench authority on the precise points raised in this matter and arguable inconsistency in decisions of single members of the Commission. For this reason, we believe that it is important to canvass the circumstances and reasoning of various decisions which bear on the arguments raised in the appeal.

THE APPLICATION OF DISPUTE SETTLEMENT PROCEDURES TO FORMER EMPLOYEES

[9] A number of arguments raised by ING relate to limitations arising from s 170LW of the Act as it was at the time the Agreement was certified by the Commission, and the terms of the Agreement itself. The Agreement was certified by Commissioner Richards, as he then was, on 14 January 2004 under s 170LT of the Act. The Agreement was made under s 170LK of the Act between ING and a valid majority of employees employed by ING at the time and whose employment was intended to be subject to the Agreement.

[10] Section 170LT(8) required the Agreement to include procedures for preventing and settling disputes between the employer and the employees whose employment will be subject to the Agreement about matters arising under the Agreement. Section 170LW was in the following terms:

[11] Properly construed, s 170LW is not a source of power of the Commission. Rather the section provides a facility for parties to certified agreements, if they so agree, and if the Commission so approves, to empower the Commission to settle disputes over the application of the agreement. The parties are free to adopt different procedures and vest these or other powers in different persons or bodies so long as they comply with the requirements of s 170LT(8).

[12] At the relevant time, the functions of the Commission were expressed in s 89 as follows:

The Commission’s powers and functions are those described in s 89(a), or conferred on the Commission by the Act, the Registration and Accountability of Organisations Schedule, or any other Act. If parties to a certified agreement confer a power on the Commission, then that power falls within the functions of the Commission by virtue of s 170LW of the Act. On the other hand, a purported conferral of power outside the terms of s 170LW would not fall within the functions or the jurisdiction of the Commission. In such circumstances, the Commission would be obliged to find that it does not have jurisdiction to deal with the matter.

[13] The predecessor to s 170LW, expressed in identical terms, was s 170MH of the Industrial Relations Act 1998 (Cth). That section was considered by the High Court in Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (‘Private Arbitration Case’). 2 In that case, the Full High Court said at [31-5]:

Amendments to the Act in 1997 altered the definition of awards and other provisions relating to certified agreements, such that the terminology in [34] above is not applicable to the provisions currently under consideration. Nevertheless, the concepts discussed remain the same.

[14] We respectfully adopt the statement by the Full Bench in National Tertiary Education Union v Charles Sturt University 3 regarding the operation of the relevant provisions of the Act:

[15] ING submitted that the type of procedure that the Commission can approve under s 170LW is only a procedure for the settlement of disputes with employees whose employment will be covered by the Agreement. It submits that, once certified, it follows that the Commission can only settle disputes with employees whose employment is covered by the Agreement at the time the Commission exercises its powers. Once a person with whom the employer is in dispute ceases to be employed by the employer, the dispute ceases to be one to which the dispute settlement procedure approved under s 170LW can apply.

[16] In support of this proposition reliance was placed on the decision of Commissioner Cribb in Pugsley and Hunt v United Energy Limited 4 where the Commissioner said at [54]:

ING also relied on decisions to a similar effect by Commissioner Deegen in Jeschke v Glenorchy City Council 5 and Coochey v Department of Defence.6

[17] Counsel for the respondent, Mr Goot SC and Mr Prince, submit that the submissions based on s 170LW are misconceived. They contend that the parties agreed to empower the Commission and by certifying the Agreement, the Commission approved the empowerment. The powers that may be conferred by s 170LW relevantly involve the power to settle disputes over the application of the Agreement between the employer and the employees whose employment will be subject to the Agreement. Counsel submit that there is no basis in s 170LW to conclude that once a person ceases to be an employee, the dispute ceases to be one to which the approved dispute resolution process applies.

CASES CONCERNING FORMER EMPLOYEES

[18] The jurisdiction of the Commission to determine disputes between an employer and a former employee has been considered on a number of occasions. Care must be exercised in considering earlier decisions given changes to the legislative provisions, the constitutional head of power underpinning the relevant legislative provisions, and differences in the wording of relevant instruments that bear upon the nature of the power of the Commission. The legal analysis applied under former provisions of the Act when the relevant provisions were primarily based on s 51(xxxv) of the Constitution, is explained in two decisions of the High Court.

[19] In R v Staples: Ex parte Australian Telecommunications Commission, 7 the High Court held that the Commission did not have jurisdiction under the Telecommunications Act 1975 (Cth) to consider the reinstatement of a former employee. At the time, the Telecommunications Act 1975 (Cth) empowered the then Commonwealth Conciliation and Arbitration Commission to prevent or settle, by conciliation or arbitration, industrial disputes as defined elsewhere in the Act. In line with the then Conciliation and Arbitration Act 1904 (Cth), an industrial dispute was defined in s 66(1) as a dispute as to an industrial matter and an industrial matter was defined as “any matter in relation to the salaries, wages, rates of pay or other terms or conditions of service or employment of offices or employees.” The High Court held that the question of the reinstatement of the former employee cannot be a matter in relation to “the terms or conditions of service or employment of employees.” The Court’s rationale was that the relevant statutory definitions confined disputes to the terms or conditions of employment of employees, and the reinstatement of a former employee did not fall within that description.

[20] The question of the jurisdiction of the Commission in reinstatement disputes was later considered by the High Court in Re Ranger Uranium Mines Pty Ltd: Ex parte Federated Miscellaneous Workers' Union of Australia. 8 In that case, the question involved the jurisdiction of the Australian Conciliation and Arbitration Commission under the Conciliation and Arbitration Act 1904 (Cth). The jurisdiction of the Commission at the time was confined to industrial disputes which were defined in terms of “a dispute as to industrial matters.” The term “industrial matters” was relevantly defined as meaning “all matters pertaining to the relations of employers and employees.” The High Court said at [660-1] that where a dispute arises for the first time after employment has been terminated, ordinarily two questions will present themselves. The first question is whether the dispute has an interstate character, which did not arise in that case as the dispute was in the Northern Territory. The second question was whether the dispute pertains to the relations of employers and employees, and not merely to the relationship between an individual former employee (or former employees) and his (or their) employer. The High Court noted that many reinstatement disputes are agitated, not merely by or on behalf of the former employee, but by and on behalf of the remaining employees who have a direct industrial interest in the security of their own employment, and in the attitude and practice adopted by an employer to the termination of employment. The court said that these matters, like questions of manning and recruitment, have a direct and not merely a consequential impact on the employer-employee relationship. Implicitly, a dispute between a former employee and an employer was not considered to fall within the description of “matters pertaining to the relations of employers and employees.”

[21] Since the 1996 amendments to the Act and the High Court’s decision in the Private Arbitration Case, various members of the Commission have dealt with applications which have sought to attract the jurisdiction of the Commission in relation to former employees. Because of the importance of this matter, we propose to mention each of the decisions of which we are aware. Not all of the decisions were brought to our attention by the parties in this matter. It should also be noted that a number of the decisions involve different factual circumstances and determinations based on different aspects of the limitations on the Commission’s powers. Variations in circumstances include the nature and terms of the agreement, the involvement of a union in agitating matters on behalf of its members and the characterisation of the dispute subject to the dispute settling procedure.

[22] In Australian Liquor, Hospitality and Miscellaneous Workers Union v Murdoch University, 9 Senior Deputy President O’Callaghan determined that he did not have jurisdiction to consider a matter involving a former employee of the university. The relevant dispute was characterised as relating to the selection process applied to the employee in relation to his application for ongoing employment. Senior Deputy President O’Callaghan found that there was nothing in the agreement that establishes a right of review for the employee in question. He said that had the employee been a current employee, he may well have been able to exercise such a right, or if the dispute had been characterised as one over the selection processes followed by the university on a more generic basis, there may have been jurisdiction. His conclusion was primarily based on a construction of the terms of the agreement and the characterisation of the dispute in question.

[23] In National Tertiary Education Industry Union v The University of Wollongong, 10 a Full Bench of the Commission considered the jurisdiction of the Commission to deal with a dispute lodged by the National Tertiary Education Industry Union regarding various matters including redundancy payments in relation to the employment of a specified employee. The notice under the dispute settlement procedure in the agreement expressed the parties to be the University and the NTEU concerning “type of employment, classifications, redundancy payments, notice of termination, dispute settlement procedures and incidental matters in relation to the employment of Dr Grant Rodwell (Faculty of Education).” In that case, a Full Bench of the Commission found that the Commission had jurisdiction to entertain a notification and upheld an appeal against the decision of Commissioner Lawson to the effect that no jurisdiction existed. The notices lodged by the NTEU were lodged one day prior to the termination of the employee’s employment. The rationale of the Full Bench related to the characterisation of the dispute by the Commissioner at first instance.

[24] In Coochey, Commissioner Deegan found that the Commission had no jurisdiction to deal with a notification lodged under a dispute settlement provision of an agreement. In that case, Commissioner Deegan found that the dispute settlement procedure could not be invoked because the relevant agreement had ceased to operate. She went on to say that even if that was not the case, as the relevant individual was not an employee within the meaning of the definition of “employee” in the relevant agreement, nor a person bound by the agreement within the terms of another clause, the individual ceased to have the capacity to progress a dispute under the dispute settlement procedure in the agreement. The relevant definition of “employees” in the agreement was as follows:

The Commissioner said at [22] that upon accepting the voluntary retrenchment and ceasing employment with the Department, Mr. Coochey lost any right he may have had to have any dispute with the Department settled by the Commission.

[25] In Pugsley, Commissioner Cribb also found that the Commission did not have jurisdiction to deal with notifications lodged by solicitors on behalf of the two employees after their retrenchment by the company. The Commissioner’s decision was based on both the terms of s 170LW and the provisions of the applicable certified agreement. In relation to s 170LW, the Commissioner made the comment referred to in [16] above to the effect that:

[26] The conclusion in relation to the construction of the agreement was based on the wording of step one of the procedure which referred to matters being discussed between “the employee/s concerned and the immediate supervisor.” Reliance was also placed on the ‘Application and Parties Bound’ clause of the agreement which expressed the parties as including United Energy and United Energy Employees in certain nominated departments. The Commissioner said that as the applicants were not employees of United Energy Limited at the time they lodged their notices, the agreement does not apply to them. The overall conclusion expressed by the Commission was as follows at [55]:

[27] In NTEIU v University of Western Australia, 11 Commissioner Thatcher also found that the Commission did not have jurisdiction to deal with a particular notification. The dispute was referred to the Commission by the National Tertiary Education Industry Union under the dispute settling procedures of the relevant agreement. The dispute related to the termination of the employment of Professor Reed. The notification was lodged after employment with the University had ceased. After reviewing various authorities, the Commissioner concluded at [136]:

[28] In Jeschke, Commissioner Deegan considered the jurisdiction of the Commission in relation to a notification of dispute under a dispute settlement clause of the applicable certified agreement. When the application was lodged, Mr Jeschke was employed by the council, but he subsequently resigned from his employment after attempts were made to resolve the matter by conciliation, but prior to the matter coming before the Commission for arbitration. The Commissioner concluded that the terms of the agreement precluded a former employee from pursuing a claim in the Commission, even though the applicant was an employee at the time the claim was lodged. The basis of the decision included the reference to “employees of the council” in the ‘Parties Bound’ clause of the agreement. The Commissioner said that nothing in the wording of the agreement supports an interpretation that the agreement provides, in addition to a dispute settlement process for disputes between the employer and employees covered by the agreement, a process to settle disputes between the employer and former employees.

[29] In National Tertiary Education Industry Union v Charles Sturt University, 12 Senior Deputy President Duncan considered the jurisdiction of the Commission in relation to a dispute that had been notified by the National Tertiary Education Industry Union regarding a decision to terminate the employment of a specified employee. The Senior Deputy President referred to the Murdoch University and University of Wollongong decisions referred to above. After referring to the conclusion at first instance in the University of Wollongong case, Senior Deputy President Duncan said at [27]:

[30] The decision of Senior Deputy President Duncan was appealed. 13 Senior Deputy President Lacy declined to grant a stay because in his opinion, it was not arguable that Senior Deputy President Duncan was wrong in relevant respects. His Honour said at [7-8]:

[31] Senior Deputy President Duncan proceeded to determine the dispute by arbitration which included determinations to reinstate the employee to her former position and pay salary for the unpaid intervening period. An appeal against that decision was granted by the Full Bench on the narrow ground that a condition precedent in the relevant dispute settlement procedure, that prior steps in the procedure be followed before being notified to the Commission, had not been satisfied in this case. The Commission held that it had no jurisdiction under the clause unless the condition precedent to referral had been satisfied. The Full Bench upheld the appeal and quashed the decision of Senior Deputy President Duncan. It did not address the jurisdictional argument discussed by Senior Deputy President Lacy in the stay application.

[32] Of the five decisions of single members of the Commission which have held that no jurisdiction exists, three were based only on the construction of the words in the certified agreement. In our view, no inference one way or the other can be made as to whether the members concerned considered that a separate limitation arose from s 170LW. Two decisions, Pugsley’s case and the University of WA case, were based on a finding that both the terms of the agreements and s 170LW limited the jurisdiction of the Commission. Both of these matters arose from the terminations themselves and no dispute apparently commenced while the employees were employed. In three other matters, including the one subject to this appeal, the Commission has found that jurisdiction exists. Two of those matters had the involvement of a Full Bench at one point in time. However in both of the matters before a Full Bench, the involvement of a union and the wider implications for ongoing employees were factors given significant weight. Again, we do not believe that any inference can be made as to the views of those members if the union factor had not been present.

[33] In these circumstances, we are of the view that this Bench will effectively be the first Full Bench to consider the particular questions in the context under consideration and therefore must determine the matter based on an analysis of the relevant provisions of the Act and the Agreement.

DOES S 170LW LIMIT COMMISSION POWERS TO CURRENT EMPLOYEES?

[34] For present purposes, we are concerned with the question of whether the terms of s 170LW, which enables parties to empower the Commission to settle disputes over the application of an agreement, limit the power able to be conferred by the parties to disputes between a current employee and an employer. In other words, is there a limitation in s 170LW such as would deprive an ex-employee of the ability to initiate, or progress, a dispute after the termination of his or her employment? We will return to arguments relating to the terms of the Agreement later in this decision.

[35] While it is undoubtedly true that parties to a certified agreement cannot confer powers on the Commission to deal with disputes which are not “over the application of the agreement,” the question is whether there is a further limitation on the nature of powers that can be conferred on the Commission, to the effect that the parties to a certified agreement are unable to confer powers on the Commission to settle disputes over the application of the agreement, when an employee has ceased to be employed by the relevant employer.

[36] In this respect, the argument of ING depends upon reading the words “preventing and settling disputes between the employer and employees whose employment will be subject to the agreement” in s 170LW as words of limitation, and that former employees are not included within the relevant description. It is argued that immediately when termination of employment occurs, any ongoing dispute is no longer one between an employer and an employee. The reference to “employees whose employment will be subject to the agreement” is a reference to the class of employees whose employment will be covered by the agreement following the certification and commencement of the agreement. The description is obviously intended to include within the class of employees both existing employees employed at the time of certification, and those who are subsequently employed while the agreement remains in operation. The question here is whether a limitation with respect to former employees is to be read into the terms of s 170LW.

[37] The Explanatory Memorandum issued in relation to the predecessor of s 170LW (s 170MH) does not address this matter expressly. It states that the section complements the predecessor to s 170LT (s 170MC(1)(c)) and that the Commission will have a discretion as to whether it will allow the inclusion of these terms in an agreement. Section 170MC(1)(c) was expressed in slightly different terms. It read:

The Explanatory Memorandum for this provision simply states –

The change of wording to that later contained in s 170LT appears to be related to concurrent amendments restricting the availability of multi-employer agreements. In our view, this material is more suggestive of a legislative intent that there be a requirement that the parties agree upon a procedure that they propose for their agreement, and that this must be approved by the Commission, rather than a provision which contains inherent limitations on what can be agreed and approved.

[38] We accept that a single person dispute which arises for the first time after the termination of employment is not a dispute between an employer and an employee. However, many disputes will arise while employment exists and continue after the termination of employment. In such a case, when the dispute arises, it is a dispute between an employee and an employer. If the dispute is progressed to the point of seeking the assistance of the Commission, the ING interpretation would require the employee to remain in employment. If it was intended to incorporate a limitation in s 170LW of the nature contended for by ING, we would expect there to be a clear express reference to that effect.

[39] The ING interpretation involves construing the provision as disqualifying employees from any process the parties may agree to confer on the Commission once they cease to be employed by their employer. Further, it requires s 170LW to be construed as depriving the parties to agreements of the ability to have a dispute continue to be resolved under an agreed procedure after termination of employment. Such a consequence would arise with respect to any dispute over any aspect of the agreement, even claims such as the non-payment of a meal allowance. It would also operate to deprive the Commission of jurisdiction at any time during the process. If termination arises after a decision is reserved, the jurisdiction to hand down the decision would not exist.

[40] As a matter of interpretation, a court or tribunal should not read a limitation into a source of power unless the words clearly bear such a meaning. Further, we do not believe that concepts of legal and industrial disputes provide any assistance in resolving the matter. Nor do we believe that it matters how the termination of employment occurred. We do not believe that s 170LW should be interpreted as including a limitation on the rights of parties to agreements in this way. If a dispute arises when the employment relationship exists, we are of the view that it is a dispute between the employer and an employee. We believe that a limitation of the nature contended for by ING should not be inferred from the words of s 170LW.

[41] In the circumstances of this matter, Mr Jajoo sought to progress a dispute under the relevant dispute settlement procedure while still employed. It was unresolved when his employment was terminated. We do not believe that there is a sound basis for construing the terms of s 170LW in a way which would deprive him of the right to progress his dispute to other levels of the procedure, including to the Commission, after the termination of his employment.

IS THERE A DISPUTE OVER THE APPLICATION OF THE AGREEMENT?

[42] It remains necessary to consider whether the dispute in question is a dispute over the application of the Agreement, which is a limitation provided for by s 170LW. It is clear from the words of s 170LW that the Commission cannot be empowered by the parties to settle disputes unless the dispute in question can be described as being one over the application of the agreement. In a recent Full Bench decision United Firefighter’s Union of Australia v Metropolitan Fire and Emergency Services Board, 14 a Full Bench described the need to characterise the dispute in the following terms:

[43] In the present matter, the notice to the Commission indicated that the matter in dispute related to whether or not the position of Mr Jajoo with ING had become redundant as a result of a restructure, such that ING is obligated to pay him severance monies pursuant to the terms of the Agreement, and further, whether or not the alleged termination of his employment by ING was harsh and unfair in all of the circumstances. Counsel for Mr Jajoo submitted that the disputed clause was a part of clause 3.12 dealing with redeployment into an alternative role with ING. The terms of that part of the clause are as follows:

[44] Where a dispute refers to particular provisions of a certified agreement, it usually follows that the dispute can be described as one over the application of the agreement. What was alleged in this case, is that circumstances surrounding a restructure had triggered entitlements under the clause outlined above, and that Mr Jajoo and the employer were in dispute as to whether those entitlements were payable or not. Ultimately, the circumstances which led to the termination of his employment were different circumstances to those subject to the dispute. In our view, the description of the dispute in the notice lodged in the Commission reflects its proper characterisation. Further, the dispute was properly described as being over the application of the Agreement in the relevant sense.

NO PROVISION FOR PRIVATE ARBITRATION

[45] ING submitted that the decision of the Commission to certify the Agreement in 2004 did not amount to approval of the Commission under s 170LW of the empowerment provided by the parties to the Agreement, of the Commission to settle disputes over the application of the Agreement. Section 170LW falls within the provisions of the Act, as they stood at the time of certification, dealing with certification of agreements. In our view, certifying an agreement which contains a clause such as clause 3.15 set out above, amounts to approval for the purposes of s 170LW. We reject the argument that no approval was given.

COLLECTIVE ELEMENT TO THE DISPUTE

[46] ING further submitted that the dispute is not of a kind described in s 170LW for the reason that it lacks the collective element required by the use of the plural “employees” in that section. In our view, this submission involves a misconstruction of s 170LW. The relevant phrase is “preventing and settling disputes between the employer and employees whose employment will be subject to the agreement.” In our view, the use of plural terminology in referring to disputes and employees does not exclude a dispute between an employer and an employee. We do not believe that there is any contrary intention apparent in this phrase such as would exclude the application of s 23 of the Acts Interpretation Act 1901 (Cth) to the effect that words in the plural number include the singular.

ARE THE TERMS OF THE AGREEMENT CONFINED TO DISPUTES WITH CURRENT EMPLOYEES?

[47] The relevant dispute settlement process in the Agreement is at clause 3.15 outlined above. ING relies on the reference to “Employee” in paragraphs (a) and (b) of the above clause, and the definition of “Employee” in clause 1.3. That definition relevantly provides:

The definitions clause also defines “Parties” as meaning INGA and the Employees.

[48] Counsel for ING contends that the plain words of the Agreement illustrate that clause 3.15 is not applicable to an ex-employee. Particular reliance is placed on the word “is” in the first line of the definition of “Employee” in clause 1.3 of the Agreement.

[49] As to the approach generally, Counsel for Mr Jajoo relies on a decision of the Supreme Court of New South Wales in Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd 15 at [165-6], where Chief Justice Gleeson, as he then was, said:

[50] Counsel for Mr Jajoo also submits that there is no significance in the use of the present tense in the definition of employee, particularly as in this case, Mr Jajoo was subject to the Agreement and was an employee at the time he first invoked the dispute settlement process. He also relies on a construction of the similar phrase contained in the former s 413A of the Act by the Federal Court in Miller v University of New South Wales. 16 The same expression is contained in the current s 849 and s 719 of the Act. In that case, Justice Branson considered that the relevant phrase in then ss 178 and 413A was ambiguous and open to at least two constructions. The two alternative constructions Her Honour identified were first, a reference to an employee who is subject to the agreement at the time he or she institutes the relevant proceeding, or alternatively, a reference to an employee whose employment was subject to the agreement when the cause of action under the subsection arose (that is when the alleged breach of the certified agreement took place). After giving consideration to the objects of the Act and the consequences of the different interpretations, Her Honour concluded that a person who was at any relevant time, when the agreement was in operation, subject to the agreement, is “an employee whose employment is subject to the agreement” within the meaning of the Act.

[51] Although these authorities support the submissions of the respondent in this appeal, the different context of the relevant phrases should be borne in mind. While some weight should be given to the prevailing interpretation of the similar or identical provisions in the Act under which the agreement is made, a certified agreement is one made between the parties, and it is appropriate to give consideration to the approach to the interpretation of agreements, rather than the interpretation of statutes. As Justice Mason, as he then was, said in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales 17 at [352]:

[52] In this matter, the Agreement was reached between the employer and the majority of employees whose employment was subject to the Agreement at the time of certification and who voted in a ballot on the matter. The effect of the submission by ING is that as a matter of construction of the terms of the Agreement, the ordinary meaning of the words in the Agreement or the intention of the parties is that grievances or disputes raised under the procedure could only be progressed so long as the employee in question remained employed by ING.

[53] It may be that a former employee cannot initiate a dispute under the clause after his or her employment has ceased. The notion of an employee raising the matter with the immediate manager or supervisor in the first instance tells against the existence of jurisdiction in such a case. Indeed, that was the situation and one of the bases for the decision of Commissioner Cribb in the Pugsley decision referred to above.

[54] However in this case, Mr Jajoo alleges that he first raised the relevant issue and sought to follow the steps contained in clause 3.15(a)-(c) in 2005. After his employment was terminated, he sought to utilise the step in the dispute settlement process in sub-clause (d). That sub-clause states that “If the matter still remains unresolved, either Party may refer the dispute to the AIRC for conciliation and/or arbitration.” In our view, the reference to “either Party” is a reference to the parties to the dispute. Mr Jajoo was a party to the dispute when he invoked the procedure and in our view, remained so when the dispute was unresolved and he sought to refer the dispute to the AIRC.

[55] We do not believe that the words of the Agreement suggest that an employee is disqualified from activating sub-clause (d) if the employment is terminated. Further, we believe that it would be highly artificial to suggest that the parties to the Agreement intended, when making the Agreement, that an employee’s ability to progress a dispute under the procedure would come to an end when he or she ceased to be an employee. Such an interpretation would mean that even a dispute which progresses to a full hearing and a reserved decision of the Commission, would be incapable of finalisation in the event of termination of employment. We see no basis to find that an employee who commences step 4 while still employed can follow that step through to the end regardless of termination, yet an employee who does not reach step 4 while still employed is precluded from accessing the final step in the process. If such serious consequences were intended, it would reasonably be expected that a clearer limitation would be written into the Agreement by the parties.

[56] We note that the opening words of clause 3.15 are unrestricted. They require “any grievance or dispute about a matter arising under the Agreement” to be dealt with in accordance with the procedure. There is no reference to ‘Employee’ in the opening words. The only reference to ‘Employee’ in the four steps of the process is as part of the phrase “Employee’s immediate manager”.

[57] We are also mindful of the alternative remedies available to Mr Jajoo under the Act, but we do not believe that these indicate that he does not have a remedy under the Agreement. It would be a curious result if Mr Jajoo could now take an action under the Act because he is held to be “an employee who is bound by the Agreement” (s 718) or “an employee whose employment is subject to the Agreement” (s 849) but could not take an action under the Agreement because he is not “an employee of the INGA whose employment is subject to this Agreement” (clause 1.3).

[58] In our view, the dispute settlement process should be viewed as a single process agreed by the parties to resolve disputes, rather than a series of separate rights and obligations which should be viewed conjunctively. That being so, an employee who had commenced to deal with a grievance or dispute while employed is not precluded, in our view, from continuing to progress that matter if it remains unresolved, notwithstanding that in the interim period they may have ceased to be employed by the employer.

[59] In reaching this conclusion, we acknowledge that parties to agreements are entirely free to draft disputes procedures in any number of different ways. Agreements may limit rights to resolve matters under disputes procedures to persons who are current employees and many agreements may properly be construed as doing so. In the circumstances of this case, we believe that the Agreement empowers the Commission to determine the dispute notwithstanding that prior to the matter being resolved (and prior to Mr Jajoo referring the dispute to the Commission) his employment was terminated by ING.

INSUFFICIENCY OF REASONS

[60] ING submitted that the decision of Senior Deputy President Drake did not articulate the reasons for the rejection of earlier decisions of Commission members, and did not comply with the requirement to give sufficient reasons to adequately explain the presence of jurisdiction in the light of the provisions of the Act, and other decisions. In our view, the decision of Senior Deputy President Drake discloses sufficient reasons in the circumstances of the matter. It is clear that Her Honour disagreed with earlier decisions and in each case, the reasons were more in the nature of conclusions rather than an explanation of the reasoning process. In our view, the appeal grounds relating to the adequacy of reasons should be dismissed.

CONCLUSION

[61] For the reasons above, we are of the view that none of the arguments advanced by ING in this appeal justify the conclusion that the Commission does not have jurisdiction to deal with the dispute between Mr Jajoo and ING in this matter. Because the matter has not been determined by a Full Bench previously, and the matters raised on appeal involve important questions as to the jurisdiction of the Commission under dispute settlement procedures of agreements, we grant leave to appeal. For the reasons above, we dismiss the appeal. In accordance with the decision of Senior Deputy President Drake, the matter will be referred to the head of the relevant panel of the Commission for allocation to a member of the Commission for conciliation.

BY THE COMMISSION:

VICE PRESIDENT

DECISION OF SENIOR DEPUTY PRESIDENT ACTON

INTRODUCTION

[62] The matter concerns an appeal, for which leave is required, by ING Administration Pty Ltd (INGA) against the decision of Senior Deputy President Drake of 9 August 2006 in Jajoo v ING Administration Pty Ltd. 18 In the decision, her Honour concluded she had jurisdiction to deal with a dispute referred to the Australian Industrial Relations Commission (the Commission) by Mr Ramsin Jajoo under the dispute resolution process of the ING Administration Pty Ltd Certified Agreement 2003 (the Agreement),19 notwithstanding the fact that Mr Jajoo’s employment had been terminated by INGA prior to him referring the dispute to the Commission. The Agreement was made under s.170LK of the Workplace Relations Act 1996 (Cth) (the Act) prior to its reform by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth). The Agreement was made between INGA and a valid majority of the persons employed at the time whose employment was to be subject to the agreement and certified by the Commission in January 2004. Its nominal expiry date is 8 January 2007.

[63] The background to the appeal is set out in the decision of Vice President Watson and Commissioner Cargill. In general, I do not need to repeat that background.

[64] Suffice to say that in late 2005 Mr Jajoo raised with his employer, INGA, a dispute he had with INGA about the application of a matter arising under the Agreement. The dispute related to whether the position of Mr Jajoo with INGA had become redundant as a result of a restructure such that INGA is obligated to pay him severance monies pursuant to the terms of the Agreement. 20

[65] In raising the dispute with INGA, Mr Jajoo was endeavouring to follow the steps contained in sub-clauses 3.15(a), (b), and (c) of the dispute settlement process in the Agreement. 21 However, the dispute remained unresolved. Mr Jajoo’s employment was subsequently terminated by INGA in a letter dated 28 March 2006, for reasons that appear to be unrelated to the dispute he had raised. On 19 April 2006, following the termination of his employment, Mr Jajoo gave notice of the dispute to the Commission under clause 3.15(d) of the dispute settlement process in the Agreement. Such a notice is commonly referred to as a s.170LW application under the pre-reform Act. In the notice, Mr Jajoo sought that the Commission conciliate and, if necessary, arbitrate the dispute.

[66] When the matter came on before Senior Deputy President Drake, INGA submitted that the Commission lacked jurisdiction to deal with the dispute. INGA’s submission that the Commission lacked jurisdiction was based on the fact that from 28 March 2006 Mr Jajoo was not an employee of INGA.

[67] As I have already indicated, Senior Deputy President Drake decided the Commission did have jurisdiction to deal with the dispute, notwithstanding the termination of Mr Jajoo’s employment. Her Honour said:

[68] In its appeal, which is brought under s.120(1)(f) of the Act, INGA maintains Senior Deputy President Drake erred in finding the Commission has jurisdiction to conciliate and/or arbitrate the dispute between INGA and Mr Jajoo. INGA submits the Commission lacks such jurisdiction on numerous grounds.

[69] The majority decision in this matter by Vice President Watson and Commissioner Cargill concludes the Commission does have such jurisdiction. For the reasons given below, I do not agree with the majority decision.

JURISDICTION ON DISPUTE SETTLEMENT PROCEDURES IN CERTIFIED AGREEMENTS

[70] Section 170LW of the pre-reform Act provides that:

[71] The predecessor to s.170LW of the Act was s.170MH of the Industrial Relations Act 1998 (Cth). Section 170MH was considered by the High Court of Australia in Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission. 23 In that case, the Full High Court said:

[72] Of course, the jurisdiction of the Commission as a private arbitrator under a dispute settlement procedure in a certified agreement is also subject to any limitations in the agreement conferring the power on the Commission. This was made clear by a Full Bench of the Commission in Charles Sturt University v National Tertiary Education Union. 25 The Full Bench of the Commission said:

DISPUTE SETTLEMENT PROCESS IN THE INGA CERTIFIED AGREEMENT

[73] The dispute settlement process in the Agreement is as follows:

[74] I think the non-employer party who refers the dispute to the Commission for conciliation and/or arbitration under clause 3.15(d) of the dispute settlement process in the Agreement must be an employee of INGA at the time he or she refers the dispute to the Commission. I do not think a former employee of INGA can exercise the referral right in clause 3.15(d) of the Agreement.

[75] I have come to this view for the following reasons.

REASONING REGARDING THE DISPUTE SETTLEMENT PROCESS

[76] Although the words which precede the dispute settlement process in clause 3.15 of the Agreement state that “any grievance or dispute about a matter arising under the Agreement will be dealt with in accordance with the following procedure”, the dispute settlement process as set out in clauses 3.15(a) to (g) of the Agreement limits the initial right to raise the matter in dispute with the Employee’s manager or supervisor and the subsequent rights to refer the matter in dispute to a higher level to INGA and an employee of INGA as opposed to INGA and an employee or former employee of INGA.

[77] In this regard, the first step in the dispute settlement process in the Agreement, which is set out at clause 3.15(a) of the Agreement, states that the matter in dispute is to be raised firstly with “the Employee’s immediate manager or supervisor” for attempted resolution. The use of the word “employee” and the requirement for the matter to be raised with the employee’s “immediate manager or supervisor” tells against a former employee being able to utilise the first step in the dispute settlement process of the Agreement. In my view, they indicate the non-employer party to the dispute must be an employee of INGA at the time he or she exercises the right under clause 3.15(a) to raise the matter with the employee’s immediate manager or supervisor.

[78] Of course, the word “Employee” is defined in clause 1.3 of the Agreement as “an employee of INGA whose employment is subject to this Agreement, but does not include an employee who has entered into an IEA pursuant to clause 2.8 of this Agreement.”

[79] Clause 2.8 of the Agreement concerns “Individual Employment Agreements”.

[80] The phrase “an employee whose employment is subject to the agreement” is contained in ss.178(5A) and 413A of the pre-reform Act and, in that context, was considered by Justice Branson in Miller v University of NSW. 27 Her Honour concluded, in respect of the meaning of the phrase in s.178(5A), that “a person whose employment was, at any relevant time when the agreement was in operation, subject to the agreement, is, unless a contrary intention is disclosed by a particular provision, ‘an employee whose employment is subject to the agreement’ within the meaning of the [pre-reform] Act.”28

[81] Her Honour’s interpretation of the phrase “an employee whose employment is subject to the agreement” in s.178(5A) was based on a consideration of the legislative context in which the phrase appears. After considering that legislative context, her Honour said:

[82] In considering the meaning of the phrase in s.413A of the pre-reform Act, her Honour said:

[83] Given the basis on which her Honour interpreted the phrase “an employee whose employment is subject to the agreement” in s.178(5A) of the pre-reform Act, I do not think her Honour’s conclusion about the meaning of the phrase in s.178(5A) is relevant to my consideration of the meaning of the similarly worded phrase in the Agreement. Her Honour did not conclusively decide the meaning of the same worded phrase in s.413A of the pre-reform Act.

[84] It is apparent Vice President Watson and Commissioner Cargill in the majority decision are also inclined to the view that her Honour’s interpretation of the phrase is not relevant to ascertaining the meaning of the similarly worded phrase in the Agreement. This is apparent because in the majority decision they state:

[85] In the context of the Agreement, I do not think it is appropriate to interpret the phrase “an employee of INGA whose employment is subject to this Agreement” as including a person whose employment was, at any relevant time when the Agreement was in operation, subject to the Agreement. The phrase in the Agreement is couched in the present tense, as is apparent from the phrase’s use of the words “employee” and “is”.

[86] Setting aside the issue of whether Justice Branson’s interpretation of the phrase “an employee whose employment is subject to the agreement” in the pre-reform Act is correct, therefore, it is not curious, as the majority decision suggests, that a person could take an action under ss.178(5A) and 413A of the pre-reform Act because he or she was held to be “an employee whose employment is subject to the agreement” within the meaning of that phrase in the pre-reform Act but could not take an action under the Agreement because he or she is not “an employee of INGA whose employment is subject to this Agreement” within the meaning of that phrase in the Agreement. It is not curious once it is understood the phrase “an employee whose employment is subject to the agreement” in the pre-reform Act and the phrase “an employee of INGA whose employment is subject to this Agreement” in the Agreement have different meanings because of the different contexts in which they appear.

[87] Sections 178 and 413A of the pre-reform Act have been replaced by ss.718 and 849 respectively of the Act.

[88] It has not yet been determined whether the phrase “an employee whose employment is subject to the agreement’ in s.178(5A) of the pre-reform Act and the phrase “an employee who is bound by the agreement” in s.718(1) of the Act have the same meaning. Nor has it been determined whether the phrase “an employee whose employment is subject to the agreement” in s.413A of the pre-reform Act and the phrase “an employee whose employment is subject to the agreement” in s.849 of the Act have the same meaning or whether the phrase “an employee who is bound by the agreement” in s.718(1) of the Act and the phrase “an employee whose employment is subject to the agreement” in s.849 of the Act have the same meaning.

[89] Nonetheless, once again, if it is understood the meaning of the phrases depends on the context in which they appear, it is not curious that a person could take an action under s.718 of the Act because he or she is held to be “an employee who is bound by the agreement” or under s.849 of the Act because he or she is held to be “an employee whose employment is subject to the agreement” but could not take an action under the Agreement because he or she is not “an employee of INGA whose employment is subject to this Agreement”.

[90] Rather, it is curious the majority decision would find the scenario they detail to be curious 32 as curious given they have said “it may be that a former employee cannot initiate a dispute under the [dispute settlement process] clause after his or her employment has ceased.”33

[91] Following the first step in the dispute settlement process in the Agreement, the further steps in the dispute settlement process in the Agreement go on to indicate that the non-employer party to the dispute must continue to be an employee of INGA at the time he or she exercises the referral rights under clauses 3.15(b), (c) and (d) of the Agreement.

[92] The further steps in the dispute settlement process, which are set out at clauses 3.15(b), (c) and (d) of the Agreement, state that if the matter remains unresolved after the previous step then “either Party” may refer the matter to a higher level, being the “supervisor’s manager”, a “more senior manager”, the “appropriate People and Culture representative” or “another senior person (up to and including the CEO)” and the “AIRC” respectively. “Either Party” is presumably a reference to either party to the matter in dispute.

[93] As I have indicated, at step one of the dispute settlement process in the Agreement, the non-employer party to the matter in dispute must be an employee of INGA to be eligible to exercise his or her rights under step one of the dispute settlement process in the Agreement. A former employee cannot exercise the rights under step one. Central to the identity of the non-employer party to the matter in dispute at step one of the dispute settlement process in the Agreement, therefore, is that the non-employer party is an employee of INGA.

[94] Nothing in steps two, three or four, being clauses 3.15(b), (c) and (d), of the dispute settlement process in the Agreement suggests that that part of the identity of the non-employer party to the matter in dispute at step one of the dispute settlement process can change to a former employee at steps two, three or four of the dispute settlement process in the Agreement and the non-employer party still be eligible to exercise his or her referral rights under those remaining steps of the dispute settlement process in the Agreement.

[95] Indeed, the reference to “either Party” in steps two, three and four of the dispute settlement process in the Agreement suggests otherwise. This is because, logically, the parties to the matter in dispute in steps two, three and four must be identical to those in step one and the parties to the matter in dispute in step one are INGA and the employee of INGA.

[96] The provision in step two, being clause 3.15(b), of the dispute settlement process in the Agreement, for the unresolved matter in dispute to be referred to the Employee’s immediate supervisor’s manager also tells against a former employee being able to exercise the referral rights under steps two, three and four, being clauses 3.15(b), (c) and (d), of the Agreement.

[97] Another factor which indicates the non-employer party to the matter in dispute must be an employee of INGA at the time he or she exercises the referral rights under the remaining steps of the dispute settlement process in the Agreement is the definition of the word “Parties” in the Agreement.

[98] The word “Parties” is defined in clause 1.3 of the Agreement as “INGA and the Employees”. A conclusion that the right, in steps two, three and four, being clauses 3.15(b), (c) and (d), of the dispute settlement process in the Agreement, for “either Party” to refer the matter in dispute to a higher level is a right available only to INGA and an employee of INGA and not a right available to a former employee is consistent with this definition of the word “Parties” in the Agreement.

[99] Further, the recognition in clause 3.15(g) of the Agreement that “an Employee” who is a union member may have his or her union representative involved in the discussion at any stage of the dispute settlement process in the Agreement also suggests it is only an employee of INGA, and not a former employee, who can exercise the referral rights under steps two, three and four, being clauses 3.15(b), (c) and (d), of the Agreement. Such discussions may occur at any of steps two, three and four of the dispute settlement process in the Agreement. The logical explanation for clause 3.15(g) recognising that an employee may have his or her union representative involved in the discussion at any stage of the dispute settlement process in the Agreement, but making no reference to a former employee having his or her union representative so involved, is that the referral rights in the dispute settlement process are not available to a former employee.

[100] In addition, a conclusion that the referral rights in steps two, three and four of the dispute settlement process in the Agreement are only available to an employee of INGA and not to both an employee or former employee of INGA is most consistent with the requirement in clause 3.15(e) of the Agreement for normal work practices and procedures to continue in accordance with INGA’s reasonable directions during the dispute resolution process.

[101] Of course, the exclusion of a former employee from the dispute settlement process in the Agreement does not leave a former employee without any means of resolving his or her dispute about a matter arising under the Agreement. A penalty for a breach of a term of the Agreement may still be sued for by at least an inspector or relevant union. 34

[102] It is also relevant that the dispute settlement process in clause 3.15 of the Agreement does not seem to exclude an employee of INGA who gets to the step of referring his or her dispute to the Commission for conciliation and/or arbitration, but whose employment is terminated after the referral and conciliation but before the arbitration, from having the dispute arbitrated by the Commission. This is because clause 3.15(d) of the Agreement sets out who can refer the dispute to the Commission and empowers the Commission to conciliate and/or arbitrate the dispute. And, clause 3.15(g) suggests the non-employer party to the dispute must be an employee of INGA at the point of the conciliation of the dispute. However, the clauses in the dispute settlement process of the Agreement do not extend to specifying the employment status of the employee who referred the dispute to the Commission, at the point of the arbitration of the dispute.

CONCLUSION

[103] For the foregoing reasons, I think the non-employer party who refers his or her dispute about a matter arising under the Agreement to the Commission under clause 3.15(d) of the dispute settlement process in the Agreement has to be an employee of INGA at the time the dispute is so referred. Since Mr Jajoo was not an employee of INGA on 19 April 2006 when he referred his dispute about a matter arising under the Agreement to the Commission by giving notice of the dispute to the Commission under clause 13.5(d) of the Agreement, I do not believe the Commission has jurisdiction to deal with the notice of dispute or, as it is more commonly known, the s.170LW application, Mr Jajoo gave to the Commission on 19 April 2006.

[104] I must conclude, therefore, that Senior Deputy President Drake erred in deciding she did have jurisdiction to deal with Mr Jajoo’s 19 April 2006 notice under clause 3.15(d) of the Agreement.

[105] Accordingly, I would grant leave to appeal in this matter, uphold the appeal and quash the decision of Senior Deputy President Drake of 9 August 2006. I would also dismiss the 19 April 2006 notice of dispute Mr Jajoo gave to the Commission under clause 13.5(d) of the Agreement or, as it is more commonly known, Mr Jajoo’s s.170LW application of 19 April 2006.

[106] In light of my conclusion in this matter I do not need to agree or disagree with the other issues raised by INGA or Mr Jajoo or with the other issues with which the majority decision deals.

BY THE COMMISSION:

SENIOR DEPUTY PRESIDENT

Appearances:

Mr. A Moses for ING Administration Pty Ltd.
Mr. R Goot SC with Mr. S Prince for Mr Ramsin Jajoo.

Hearing details:

2006.
Sydney.
26 September.

 1   Pawel v Australian Industrial Relations Commission [1999] FCA 1660; Samartino v Foggo and others (1999) 93 IR 52; SPC Ardmona Operations Ltd v Esam and another [PR957497].

 2   (2000) 203 CLR 645.

 3   [PR963494].

 4   [PR945579].

 5   [PR961604].

 6   [PR939776].

 7   (1980) 143 CLR 614.

 8   (1987) 163 CLR 656.

 9   [PR913512].

 10   [PR930177].

 11   [PR953722].

 12   [PR957807].

 13   [PR958515].

 14   [PR973884].

 15   (1996) 39 NSWLR 160.

 16   [2000] FCA 1563.

 17   (1982) 149 CLR 337.

 18   PR973602, 9 August 2006 per Drake SDP

 19   AG831574.

 20   See the Notice Under a Dispute Settling Procedure in an Agreement in C2006/2488.

 21   Ibid.

 22   Jajoo v INGA Administration Pty Ltd, PR973602, 9 August 2006 per Drake SDP at paragraphs 14-17.

 23   (2001) 203 CLR 645.

 24   Ibid at paragraphs 30-35.

 25   PR96394, 5 October 2005 per Lawler VP, O’Callaghan SDP and Harrison C.

 26   Ibid at paragraph 10.

 27   [2000] FCA 1563, 7 November 2000.

 28   Ibid at paragraph 24.

 29   Ibid at paragraph 26.

 30   Ibid at paragraph 27.

 31   ING Administration Pty Ltd v Jajoo, PR974301, 4 December 2006 per Watson VP and Cargill C at
paragraph 53.

 32   Ibid at paragraph 57.

 33   Ibid at paragraph 53.

 34   See s.178(5A) of the Workplace Relations Act 1996 (Cth) prior to its reform by the Workplace Amendment
(Work Choices) Act 2005 (Cth) and s.718 of the current Workplace Relations Act 1996 (Cth).

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