C A T C H W O R D S INDUSTRIAL LAW - Termination of Employment - Whether Court has jurisdiction - Applicant employed and teminated overseas. INDUSTRIAL RELATIONS ACT 1988, S.170EA VLADIMIR CHIKNAIKIN -V- BHP PETROLEUM PTY LTD NO. SI 143/1994 Judicial Registrar: L Farrell Place: Adelaide Date: 9th March 1995 INDUSTRIAL RELATIONS COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY SI 143/1994 B E T W E E N: VLADIMIR CHIKNAIKIN Applicant AND BHP PETROLEUM PTY LTD Respondent MINUTES OF ORDER Judicial Registrar Farrell Date: 9th March 1995 THE COURT ORDERS THAT: 1. The Court has no jurisdiction to hear the matter. 2. The Application is dismissed. NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules INDUSTRIAL RELATIONS COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY SI 143 OF 1994 B E T W E E N: VLADIMIR CHIKNAIKIN Applicant AND BHP PETROLEUM PTY LTD Respondent BEFORE: JUDICIAL REGISTRAR FARRELL PLACE: ADELAIDE DATE: 9TH MARCH 1995 REASONS FOR JUDGMENT In this matter, which is an Application pursuant to Section 170EA of the Industrial Relations Act 1988, the parties requested that I deal with the issue of whether the Court has jurisdiction to hear the matter as a preliminary issue. Both parties were concerned about the costs involved if the matter proceeded as a full hearing. The parties agreed or conceded the following facts:- 1 The Applicant was employed by the Respondent in the position of Representative in the Moscow office of the respondent. 2 The terms and conditions governing the employment of the Applicant are set out in a letter of offer from the Respondent to the Applicant dated 5th May 1993 which offer was accepted by the Applicant on the 14th May 1993. 3 All negotiations between the Respondent and the Applicant leading to the formation of the contract of employment were conducted outside the Commonwealth of Australia and its territories. 4 At the time of such negotiations the Applicant was resident in Russia and employed in Russia by McDermott International BV. 5 The offer of employment contained in the 5th May letter was prepared on the instruction of, and signed by , the Respondent's representative in Moscow, Mr Peter Worthington, in Moscow and sent by the Respondent to the Applicant in Sakhalin, Russia. 6 The Applicant accepted the said offer in writing in Sukhalin, Russia and delivered it, or caused it to be delivered, to the Respondent in Moscow. 7 The Applicant commenced employment at the Moscow office of the Respondent on or about 28th June 1993 and was employed continuously by the Respondent at its Moscow office from that date until the termination of his employment. 8. The Applicant was informed by Mr Worthington at a meeting which took place on the 6th May 1994 that his employment would be terminated forthwith. 9. The Respondent by letter of 11th May 1994 confirmed that the Applicant's employment was terminated as from 6th May 1994. 10. BHP Petroleum Pty Ltd, the Respondent, is incorporated under Australian Law. 11. The registered offices of BHP Petroleum Pty Ltd was at all material times situate in Melbourne, Victoria. 12. The payment by the Respondent of salary to the Applicant and of his annual leave entitlements pursuant to the letter of contract dated 5th May 1993 was made by the Respondent in Australia by means of transfer from a BHP account in Melbourne to the Applicant's Bank account in Australia at the request of the Applicant. 13. Upon becoming employed by the Respondent the Applicant became a member of the staff superannuation scheme of the Respondent which scheme was based in Melbourne. 14. In addition a letter dated the 5th May 1993 from the Respondent to the Applicant setting out the terms and conditions of employment of the Applicant was tendered into evidence along with the letter of the 11th May 1994 confirming the termination of the Applicant's employment with the Respondent. The letter dated 5th May 1993 and confirming the Applicant's employment contains the statement "the appointment is made under Australian Law". As I understood the Respondent's argument it is now impossible to ascertain what the parties intended by the statement "the appointment is made under Australian Law" at the time that this agreement was entered into. The provisions of the Act relating to the termination of employment did not come into force until 30th March 1994. The Industrial Relations Act 1988 overrides contracts of employment generally however the relevant provisions of the Industrial Relations Act 1988 fixes on an event, that is termination of employment, and not on the contract of employment. Further the Respondent argued that although the Australian Parliament could legislate extra-territorially that was not its intention here. The Respondent argued that the Industrial Relations Act 1988 does not manifest an intention to have its provisions extend beyond Australia except in relation to those matters which it specifically does so. The Respondent's Counsel referred to a number of cases that although not directly on the point nevertheless suggestion alternative tests to be applied in this case. The Respondent's Counsel in his submissions did not suggest which test I ought to adopt with respect to the matter, rather, that whatever test I adopted would result in my finding that there was no jurisdiction in this Court to hear this matter. The Applicant argued that the parties had chosen the Law of Australia and that that choice was clear, bone fide and for a sustainable reason. On that basis the Applicant argued "if it is the intention of the parties that the law of the contract be Australian then that, in our submission provides the necessary intra-territorial operation of the legislation". I am unable to accept the argument of the Applicant. I fail to see how the intention of the parties can bring them within jurisdiction. The contract of employment was entered into in Russia, carried out in Russia and terminated in Russia. In my view the facts that connect the Applicant's termination of employment to this Court's jurisdiction are so insignificant that I must find that the Court has no jurisdiction to hear the Application. The Application is therefore dismissed. I certify that this and the preceding 2 pages are a true copy of my reasons for judgment. DATE OF HEARING: 21st December 1994 FOR THE APPLICANT: Mr J Weatherill FOR THE RESPONDENT: Mr D Bleby