Larke -V- State Trustees Ltd [1996] IRCA 109

DECISION NO: 109/96 C A T C H W O R D S INDUSTRIAL LAW - Termination of Employment - Unlawful Termination - Application for summary dismissal - Associated jurisdiction - Additional remedies sought in claim of unlawful termination of employment Industrial Relations Act 1988 ss.170CD, 170EA CASES: Hargreaves v National Safety Council of Australia (unreported) 1 November 1995

General Steel Industries v Commissioner for Railways NSW, 112 CLR 125 Fitzroy Motors Pty Ltd v Hyundai Automotive Distributors Australia Pty Ltd (1995) 133 ALR 445. LARKE -v- STATE TRUSTEES LTD No. VI-5418 of 1995 Before: Judicial Registrar Ryan Place: Melbourne Date: 6 March 1996

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI-5418 of 1995 B E T W E E N : LARKE Applicant AND STATE TRUSTEES LTD Respondent MINUTES OF ORDERS Judicial Registrar Ryan 6 March 1996 THE COURT ORDERS: 1. The Court orders that the Respondent's Motion brought by Notice filed 20 February 1996 be dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI-5418 of 1995 B E T W E E N : LARKE Applicant AND STATE TRUSTEES LTD Respondent Before: Judicial Registrar Ryan Place: Melbourne Date: 6 March 1996 REASONS FOR JUDGMENT By Notice of Motion dated 19 February 1996 the respondent moved the Court for orders including an order that an application made by the applicant pursuant to S170EA of the Industrial Relations Act 1988 (the Act) be dismissed. The basis of the motion is that the applicant was a non-award employee excluded from the jurisdiction of Division 3 of Part VIA of the Act because relevant wages exceeded the amount prescribed in S170CD. The respondent through Counsel asserts that the applicant could not be taken to be employed under award conditions because the wages and conditions of employment were not regulated by one or more relevant awards which bound the respondent as employer. Firstly the respondent asserts that the applicant as an employee above job level 4 as prescribed in Appendix 1 to the State Trustee Limited Award 1994 (the Award) was subject to an industrial contract with salary and packaging arrangements which were not covered by the Award. Secondly the respondent asserts that jobs above level 4 and specifically the applicant's position are not covered in respect of salaries by the Certified Agreement between the respondent and the Community and Public Sector Union (the Agreement). The respondent relies on clause 6.1 of the Agreement. The Agreement is Exhibit LCL2 to the affidavit sworn by the applicant on 4 March 1996. A copy of the Award is LCL1. Thirdly the respondent relies on the concession made by the applicant in paragraph 12 of the above affidavit that the Award and the Agreement bind the respondent save and except in respect of salary and salary packaging arrangements. The respondent argues that if the Award and the Agreement do not bind the respondent in respect of salary and salary packaging arrangements and this is conceded by the applicant, the applicant is not and cannot be taken to be employed under award conditions. The respondent further submits that the applicant must be a non Award employee within the terms of S170CD(3) because wages and some of the conditions of employment are not regulated by one or more relevant awards that bind the respondent as employer. The applicant appears to argue that: 1. prior to and at the time of termination of his employment various terms and conditions of his employment were regulated by the Award and the Agreement 2. the Agreement was made pursuant to the Award 3. Clause 7 of the Award provides a mechanism for sacrificing part of salary for superannuation 4. the ability to sacrifice salary by way of a provision in a certified agreement made pursuant to an Award provides a capacity and potential to govern salary and the applicant is and can be taken to be employed under award conditions with wages and conditions regulated by the Award 5. the Applicant accordingly has standing to make an application under S170EA of the Act I cannot say that at first blush I am impressed with the argument that the applicant has standing on the grounds asserted above but that is not to the point. For the reasons expressed by Marshall J in Hargreaves v National Safety Council of Australia VI-2870 of 1995 (unreported) 1 November 1995 and relying too on the cases there cited I find that this matter should not be summarily dismissed. The applicant's initial argument on standing may not impress me but that is all it is in response to this motion; an initial argument. Certainly, adopting the test of Barwick CJ in General Steel Industries v Commissioner for Railways NSW 112 CLR 125, 129 to 130 I cannot say that the case for dismissal of this application for lack of jurisdiction is "so plain and obvious that the Court can say at once that the statement of claim, even if proved, cannot succeed" or that it is a case that "does not admit a reasonable argument so to speak, apparent at a glance". It is particularly the Chief Justice's reference in General Steel Industries to the Statement of Claim which persuades me that this motion should be dismissed. Most claims of unlawful termination of employment do not include a statement of claim in any conventional sense. An application for remedy and a claim of unlawful termination of employment on form 132 under the Rules of this Court is a brutally simple document but, in this case, the form 132 when lodged on the 23 October 1995, gave details of other remedies sought, that is remedies other than reinstatement and compensation. These details of other remedies sought clearly foreshadowed an application not yet made in a formal sense to utilise the associated jurisdiction of the Court for breach of contract, breach of a duty of good faith and damages for inadequate notice and wrongful termination of employment. These matters were brought to my attention at a Directions Hearing on 20 February. The respondent presented at the Directions Hearing with the present Notice of Motion filed earlier that day in the Registry of this Court. The Notice of Motion had been accepted by the Registrar but it bore no return date. I directed that the motion be returnable on 5 March and, by consent, orders were made that the applicant file and serve contentions of fact and law by 27 February and the respondent file and serve a response by 5 March. Furthermore, the matter was adjourned to a Judges Direction List on 18 March because of the foreshadowed claim in the associated jurisdiction of this Court. With the benefit of hindsight it might have been preferable to make the Notice of Motion returnable on or after 18 March but be that as it may I am very mindful of the decision of the Chief Justice of this Court in Fitzroy Motors Pty Ltd v Hyundai Automotive Distributors Australia Pty Ltd (1995) 133 ALR 445. His Honour held inter alia that: (i) proceedings in that matter were not instituted without reasonable cause (ii) for the associated jurisdiction to arise, the primary claim must be genuine in that it must not be a sham claim for the purpose of fabricating a jurisdiction that would not otherwise exist (iii) where the primary claim is unarguable but the applicant persuades the Court that it was not fabricated the Court will not lack jurisdiction to determine the associated claim (iv) there was no question of the applicant having fabricated jurisdiction or lacking good faith and the claims apparently arose out of the same substratum of facts (v) a proceeding was not to be regarded as having been instituted without reasonable cause simply because it proved to be unsuccessful (vi) where success depends upon the resolution in the applicant's favour of one or more points of law it was inappropriate to stigmatise the proceedings as being without reasonable cause While I may hold a preliminary view that the claim of unlawful termination of employment under S170EA is unarguable because of the restrictions to jurisdiction in S170CD, it is no more than a preliminary view. Furthermore, I am in no position to determine that this is a sham claim for the purpose of fabricating a jurisdiction that would not otherwise exist. The determination of the bona fides of the original claim and the claims foreshadowed in the associated jurisdiction should not in my view be summarily determined by granting a motion which would oust jurisdiction. The respondent's motion brought by notice filed 20 February 1996 is dismissed. The utilisation of the Courts associated jurisdiction is of course a discretionary remedy and that is a matter which will no doubt receive some consideration at the Directions Hearing listed on 18 March 1995. MINUTES OF ORDERS THE COURT ORDERS: 1. That the Respondent's Motion brought by notice filed 20 February 1996 be dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. I certify that this and the preceding 4 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan. Associate: Dated: 22 March 1996 Counsel for the Applicant: Mr P D Burchardt Solicitor for the Respondent: Mr Dominic Macken of A J Macken and Co Date of hearing: 5 March 1996 Date of judgment: 6 March 1996