Dec 1264/00 M Print T2042
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.45 appeal against decision Print S7720
issued by Commissioner Eames on 3 July, 2000
(C No. 80047 of 2000)
s.170CE application for relief in respect of termination of employment
Commonwealth of Australia
(U No. 80040 of 2000)
JUSTICE GIUDICE, PRESIDENT
VICE PRESIDENT McINTYRE
SYDNEY, 17 OCTOBER, 2000
Appeal - termination of employment - jurisdiction - whether enlisted airman an employee for the purposes of Division 3 of Part VIA - leave to appeal granted - appeal dismissed.
 This is an appeal by Mr G Williams (the appellant) against a decision given by Commissioner Eames in Darwin on 3 July, 2000 dismissing the appellant's application for relief in respect of the termination of his employment by the Commonwealth of Australia (the respondent) [Print S7720]. The appellant was formerly a member of the Australian Defence Force being an airman enlisted in the Royal Australian Air Force. He was discharged from service by the respondent on medical grounds on 3 March, 2000. On 10 March, 2000 the appellant applied for relief pursuant to Subdivision B of Division 3 of Part VIA of the Workplace Relations Act 1996 (the Act). The application was dismissed by the Commissioner in his decision of 3 July, 2000.
 The relevant statutory provisions are in Division 3 of Part VIA of the Act. Division 3 is entitled Termination of Employment. It is divided into 6 subdivisions as follows:
Subdivision A Object, application and definitions
Subdivision B Application to Commission for relief in respect of termination of employment
Subdivision C Unlawful termination of employment by employer
Subdivision D Commission orders giving effect to Articles 12 and 13 of Convention
Subdivision E Commission orders after employer fails to consult trade union about terminations
Subdivision F Other rights relating to termination of employment
The Convention to which reference is made in the title of Subdivision D is the Convention Concerning Termination of Employment at the Initiative of the Employer (the Convention). A copy of the English text of the Convention is set out in Schedule 10 to the Act.
 Section 170CE, which is in Subdivision B, permits an employee whose employment has been terminated by the employer to make an application to the Commission for relief. The application may be made on a number of grounds. The first ground is that the termination of the employment was harsh, unjust or unreasonable. Other grounds relate to an alleged contravention by the employer of ss. 170CK, 170CL, 170CM or 170CN. All of those sections are in Subdivision C. An application may also be made on a combination of the grounds specified. The Commission is required to attempt to resolve all applications by conciliation. Where there is no compromise the applicant may seek arbitration by the Commission or adjudication by the Federal Court of Australia. The grounds which the applicant elects to pursue determine whether the matter is heard in the Commission or in the Court. Where relief is sought on the ground that the termination was harsh, unjust or unreasonable the application is determined by the Commission pursuant to the provisions of Subdivision B. Where relief is sought on any of the other grounds the application is dealt with by the Court pursuant to the provisions of Subdivision C. For the purpose of this case it is important to emphasize that only an employee may make an application pursuant to s.170CE.
 The question posed by this appeal is whether the appellant is an employee for the purposes of s.170CE and Division 3 generally. It is agreed that the appellant was not party to a contract of employment with the respondent and therefore not an employee at common law . This follows inevitably from the nature of his engagement. He enlisted voluntarily in the Permanent Air Force by taking an oath pursuant to Regulations 92(1) and 94 of the Air Force Regulations 1927 and ss.4B and 4E of the Air Force Act 1923. A member of the Australian Defence Force is not engaged under a contract of employment: Commissioner for Railways (N.S.W.) v Scott (1959) 102 CLR 392 at 441; Commonwealth v Quince (1943) 68 CLR 227.
 The Commissioner found that the appellant was not an "employee" within the meaning of that expression in Division 3. The appellant seeks to challenge the Commissioner's decision on the basis that the application of Division 3 is not limited to persons who are employees at common law but includes the appellant. We are of the opinion that the issue is of such importance that in the public interest leave should be granted to appeal. We grant leave.
 We note at the outset that s.170CB, which is in Subdivision A, provides for the manner in which Subdivisions B to E are to apply. In doing so it specifies the categories of persons to whom the subdivisions apply. Although the appellant relies in particular upon the term "a Territory employee" appearing in ss.170CB(1)(b) and (4)(b), we note that the expression "employee" is common to all of the categories of persons to whom the various subdivisions apply. It is sufficient at this stage to focus our inquiry on the meaning to be given to the expression "employee".
 Leaving aside a suggestion in the appellant's case that the concept of employment at common law may include the relationship between an enlisted airman and the respondent, a submission to which we shall return, the thrust of the appellant's case is that the expression "employee" in Division 3 is to be interpreted by reference to the Convention. It is said that Division 3 was enacted at least in part to give effect to the Convention and should be interpreted in light of it. When regard is had to the terms of the Convention, so the argument runs, it is clear that members of the Defence Force are intended to be covered by the Convention unless specifically excluded by the legislation of a member State. In this connection reliance is placed on the decision of a Full Court of the Federal Court of Australia in Konrad v Victoria Police (State of Victoria) (1999) 165 ALR 23. In that case the Court held that the terms of the Convention extend to a police constable (esp. per Ryan J at paras 14 and 15 and Finkelstein J at paras 78 and 79). By parity of reasoning it is submitted that an enlisted airman is likewise intended to be covered by the terms of the Convention. We mention in passing that the respondent submits that an enlisted airman is to be distinguished from a police constable and for that reason if for no other Konrad does not constitute binding authority in relation to the appellant.
 A critical issue in this case is, therefore, whether the expression "employee" in Division 3 of Part VIA is intended by the legislature to have a meaning broader than it has at common law so that on its proper construction it includes all persons coming within the terms of the Convention. The surest guide to the intention of the legislature is likely to be the words of the statute. We turn to examine the provisions of the Act which are relevant to the construction of the expression including those which the appellant submits justify or require the interpretation for which he contends.
 By s.4(1) of the Act "employee" is defined to include any person whose usual occupation is that of employee. That definition does not advance the inquiry. It is common ground, however, that the expression refers to an employee at common law, that is, a person engaged pursuant to a contract of employment. That concession by the appellant is well founded. Leaving aside authorities dealing with statutory provisions based upon the Commonwealth Parliament's power to legislate with respect to external affairs, it has never been suggested that the expression "employee", either in the Act or in any of its precursors going back to 1904, means anything other than an employee at common law.
 The principal object of the Act set out in s.3 includes the following:
"The principal object of this Act is to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia by:
(k) assisting in giving effect to Australia's international obligations in relation to labour standards".
These words require the Commission in exercising the various discretions conferred on it by the Act to have regard to the object of assisting in giving effect to Australia's international obligations in relation to labour standards. Of itself, however, paragraph (k) does not require that the expression "employee" is to be construed any more broadly than it would be under domestic law.
 Section 170CA, which is in Subdivision A, should be set out in full:
"(1) The principal object of this Division is:
(a) to establish procedures for conciliation in relation to certain matters relating to the
termination or proposed termination of an employee's employment in certain circumstances; and
(b) to provide, if the conciliation process is unsuccessful, for recourse to arbitration or to a court depending on the grounds on which the conciliation was sought; and
(c) to provide for remedies appropriate to a case where, on arbitration, a termination is found to be harsh, unjust or unreasonable; and
(d) to provide for sanctions where, on recourse to a court, a termination or proposed
termination is found to be unlawful; and
(e) by those procedures, remedies and sanctions, and by orders made in the circumstances set out in Subdivisions D and E, to assist in giving effect to the Termination of Employment Convention.
(2) The procedures and remedies referred to in paragraphs (1)(a) and (b), and the manner of deciding on and working out such remedies, are intended to ensure that, in the consideration of an application in respect of a termination of employment, a "fair go all round" is accorded to both the employer and employee concerned.
Note: The expression "fair go all round" was used by Sheldon J in re Loty and Holloway v Australian Workers' Union  AR (NSW) 95."
It was submitted on behalf of the appellant that s.170CA(1)(e) requires that the expression "employee" should be construed to include all persons covered by the Convention. We reject that submission. Reference to the procedures, remedies and sanctions provided for in the Division indicates that those things are to "assist in giving effect to" the Convention. This is entirely different from specifying, as the legislature might have but did not, that the operation of the Division is to be co-extensive with the operation of the Convention. Assisting in giving effect to the Convention does not require the adoption of the Convention in its entirety. Nothing in s.170CA(1)(e) requires that the expression "employee" where it appears in Division 3 should be construed to include all persons covered by the Convention.
 Furthermore it is clear from s.170CG(3), the central operative provision in Subdivision B, that the legislature did not adopt all of the terms of the Convention. That section reads:
"(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:
(a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service; and
(b) whether the employee was notified of that reason; and
(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and
(d) if the termination related to unsatisfactory performance by the employee-whether the employee had been warned about that unsatisfactory performance before the termination; and
(e) any other matters that the Commission considers relevant."
This provision is to be compared with art. 4 of the Convention which is in these terms:
"The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service."
A comparison of the two provisions reveals that while art. 4 relevantly prohibits termination of employment unless there is a valid reason for termination, there is no such prohibition in s.170CG(3). There could be no clearer indication that the legislature has enacted procedures and remedies of its own rather than simply adopting the terms of the Convention.
 The appellant also relied on s.170CB(5), which relates to the application not of Subdivision B but of Subdivisions C, D and E. Section 170CB(5) reads:
"(5) Without prejudice to their effect apart from this subsection, Subdivisions C, D and E also apply in relation to the termination of employment of an employee for the purpose of assisting in giving effect to the Termination of Employment Convention."
That Subdivision B is not referred to in s.170CB(5) indicates that Subdivision B does not apply in relation to the termination of employment of an employee for the purpose of assisting in giving effect to the Convention. Even in relation to Subdivisions C, D and E, the adoption of the Convention is to say the least equivocal. The prefatory words "Without prejudice to their effect apart from this subsection" indicate that the subdivisions are to have an operation independent of the Convention. Furthermore, we have concluded in relation to s.170CA(1)(e) that the words "assist in giving effect to" do not indicate an intention to import the effect of the Convention as a whole. The same can be said in relation to the expression "assisting in giving effect to" in s.170CB(5).
 We now turn to s.170CD, which is entitled "Definitions". For present purposes it is only necessary to refer to s.170CD(2). That section reads:
"(2) An expression used in Subdivision C, D or E of this Division has the same meaning as in the Termination of Employment Convention."
Counsel for the appellant submitted that the effect of this provision is that Subdivisions C, D and E apply to all persons within the scope of the Convention. It was then submitted that because all applications under Division 3, including those required to be dealt with pursuant to Subdivisions C, D or E, must be initiated pursuant to s.170CE, which is part of Subdivision B, Subdivision B likewise extends to all persons within the scope of the Convention. It would be an absurdity to hold otherwise, it was submitted.
 In considering the effect of s.170CD(2) the first thing to note is that it is provided in art. 2.1 of the Convention that the Convention applies to "all employed persons". The expression "employed persons" is used in arts. 2.2, 2.4 and 2.5 as well. In some parts of art. 2 and in the Convention generally the expression "worker" or "workers" is used to describe the persons to whom the Convention applies. The expression "employee", the expression with which we are here directly concerned, does not appear in the Convention. We cannot see how s.170CD(2) can properly be called in aid of a submission that the expression "employee" has the same meaning as in the Convention when the Convention does not use the expression.
 It is also significant that nowhere in Division 3 does the expression "employed person" appear and the expression "worker" only appears as part of the term "waterside worker". If, as in this case, the legislature specifies in a statute that an expression used in the statute has the same meaning as in the Convention, and the legislature does not use in the statute an expression in the Convention, it is to be inferred that the omission is intentional. This is a further indication that the legislature did not intend that the expression "employee" in s.170CE should be construed by reference to the expressions "employed person" and "worker" in the Convention.
 We have carefully considered the judgements of the members of the Federal Court in Konrad. In that case the Court found that the remedies afforded by Division 3 of the Industrial Relations Act 1988 (the IR Act) were available to all persons covered by the Convention including those not employees at common law. The respondent submitted that the decision is distinguishable. We agree. The IR Act was amended by the Workplace Relations and Other Legislation Amendment Act 1996 (the WROLA Act). Prior to the commencement of Division 3 of the Act s.170CA(1) of the IR Act provided in part:
"The object of this Division is to give effect, or give further effect , to:
(a) the Termination of Employment Convention.
Section 170CA(1) of the IR Act was part of the statutory scheme upon which Konrad was decided. It is clear that the section played an important part in the reasoning of the Court: see per Ryan J at para 1; Finkelstein J at paras 43 and 71. Section 170CA(1)(a) of the IR Act was repealed and s.170CA(1)(e) of the Act was enacted. That section reads:
"(1) The principal object of this Division is:
(e) by those procedures, remedies and sanctions, and by orders made in the circumstances set out in Subdivisions D and E, to assist in giving effect to the Termination of Employment Convention."
There is a significant difference between the two provisions and it is to be assumed that the Parliament intended the new provision to have an effect different from the previous provision. The repeal of s.170CA(1) of the IR Act was not the only relevant change brought about by the WROLA Act. Section 3(b) of the IR Act read relevantly:
"3. The Principal object of this Act is to provide a framework for the prevention and settlement of industrial disputes which promotes the economic prosperity and welfare of the people of Australia by:
(b) providing the means for:
(ii) ensuring that labour standards meet Australia's international obligations".
By force of the WROLA Act, the opening words of s.3 were altered in a way not presently material, sub-paragraph (b)(ii) was deleted and paragraph (k) was inserted. As we have already seen, paragraph (k) refers to "assisting in giving effect to Australia's international obligations in relation to labour standards." There are other differences between the statutory provisions with which the Court was concerned and those which we are required to interpret. It is not necessary to refer to all of them. We are satisfied that because of these differences the Court's decision in Konrad is not applicable.
 Counsel for the appellant also relied upon a passage in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 to support the contention that the expression "employee" should be given the meaning it bears in the Convention. The passage appears in the joint judgment of Mason CJ and Deane J and should be set out in full:
"The status of the Convention in Australian law
It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, not the Executive. So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law. In this case, it is common ground that the provisions of the Convention have not been incorporated in this way. It is not suggested that the declaration made pursuant to s 47(1) of the Human Rights and Equal Opportunity Commission Act has this effect.
But the fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia's obligations under international law." (at 286-7)
We do not think that this passage assists in the resolution of the present matter. The Parliament has legislated in relation to the Convention and in doing so has indicated in ways to which we have already referred that it did not intend to simply adopt the Convention. The expression "employee", as we have decided, is not ambiguous but bears its ordinary meaning at common law. It is not possible to apply the principle of statutory construction to which their Honours refer to defeat the plain meaning of the Act.
 It was also submitted on the appellant's behalf that, although not engaged pursuant to a contract of employment, the appellant was nevertheless an "employed person". Reliance was placed on the use of the term "employed" and similar terms by members of the High Court of Australia in connection with the engagement of members of the Defence Force: Marks v Commonwealth of Australia (1964) 111 CLR 549 per Windeyer J at 586; Coutts v Commonwealth of Australia (1985) 157 CLR 91 per Wilson J at 98, 99 and 103, Dawson J at 119, 120. We understand this argument to be advanced primarily on the basis that the expression "employee" should be construed to include "employed persons" - the expression used in art. 2 of the Convention. In the circumstances it is not necessary for us to decide that issue. Division 3 is confined in its operation to persons engaged pursuant to a contract of employment. It is common ground that the appellant was not so engaged by the respondent.
 Finally we observe that the conclusion that the expression "employee" is not intended to include a member of the Defence Force is reinforced by the circumstance that the legislature has not taken any step to bring such persons within the Act. Counsel for the respondent submitted that where the Parliament intends the expression "employee" to have an extended meaning so as to include a member of the Defence Force it legislates to that effect: Safety Rehabilitation and Compensation Act 1988 ss.4 and 5(2); Disability Discrimination Act 1992 s.4(1); Sex Discrimination Act 1984 s.3; Occupational Health and Safety (Commonwealth Employment) Act 1991 s.9. We think this submission has force. In ss.170CB(1) and (4) Parliament elaborated on the operation of the various subdivisions by specifying the categories of persons to whom the subdivisions apply. If the legislature intended that the subdivisions should apply to members of the Defence Force it could have so specified. In the absence of such specification it might reasonably be inferred, in conjunction with the other indications of legislative intent to which we have referred, that it is not intended that members of the Defence Force should have the benefit of Division 3.
 For all of these reasons we have concluded that the Commissioner's decision was correct. We dismiss the appeal and confirm the Commissioner's decision.
BY THE COMMISSION:
M Grove of counsel for the appellant.
R R S Tracey QC and GC McCarthy of counsel for the respondent.
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