EDWARDS v COMMONWEALTH BANK OF AUSTRALIA [1997] IRCA 96

DECISION NO:96/97 CATCHWORDS INDUSTRIAL LAW - Application under s 170EA lodged out of time - Certificate issued by Commission - matter referred to Court - no order made extending time - whether application duly lodged in Court - operation of presumption of regularity Workplace Relations Act 1996 s 170EA, s 170ED(1) Carrasco v Kleenmaid Pty Ltd (unreported, Industrial Relations Court of Australia, 15 November 1996) R v Ludeke; Ex parte the Customs Officers' Association of Australia, Fourth Division (1985) 155 CLR 513 K Mart Australia Ltd v Ahohua (Print N5272 - 27 September 1996) Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835 Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1986) 67 ALR 282 Dawson v Westpac Bank Corporation (1991) 66 ALJR 94 Australian Securities Commission v Fairlie (1993) 11 ACLC 654 Re NIAA Corporation Ltd (in Liq) (1993) 12 ACSR 141 Re Bladen [1952] VLR 82 Mallock v Tabak [1977] VR 78 Smith v Smith (1985) 80 FLR 444 Perlt v Kahl (1976) 13 SASR 433 Carpenter v Carpenter Grazing Co Pty Ltd (1987) 5 ACLC 506 Prasad v Minister for Immigration, Local Government and Ethnic Affairs (1991) 101 ALR 109 Doyle v Western Suburbs District Rugby League Football Club (1994) 57 IR 97 Commonwealth v Verwayen (1991) 170 CLR 394 Turner v K & J Trucks Coffs Harbour Pty Ltd (1995) 61 IR 412 No. NI 1647 of 1996 RUSSELL WILLIAM EDWARDS v COMMONWEALTH BANK OF AUSTRALIA MOORE J SYDNEY 21 MARCH 1997

IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) No. NI 1647 of 1996 ) NEW SOUTH WALES DISTRICT REGISTRY) BETWEEN: Russell William EDWARDS Applicant AND: COMMONWEALTH BANK OF AUSTRALIA Respondent JUDGE: Moore J PLACE: Sydney DATE: 21 March 1997 ORDER OF THE COURT THE COURT DECLARES THAT: 1. The applicant's application for relief in respect of termination of employment dated 1 May 1996 is, at 21 March 1997, not, because of the absence of a valid order of the Australian Industrial Relations Commission pursuant to s 170EA(3)(b) of the Industrial Relations Act, 1988, an application to the Court duly lodged within the meaning of s 170ED(2) of the Act. NOTE:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules. IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) No. NI 1647 of 1996 ) NEW SOUTH WALES DISTRICT REGISTRY) BETWEEN: Russell William EDWARDS Applicant AND: COMMONWEALTH BANK OF AUSTRALIA Respondent JUDGE: Moore J PLACE: Sydney DATE: 21 March 1997 REASONS FOR JUDGMENT On 1 May 1996 Mr Russell William Edwards lodged an application under s 170EA of what is now known as the Workplace Relations Act 1996 ("the Act") with the Australian Industrial Relations Commission ("the Commission"). Mr Edwards alleged in the application that his employment with the Commonwealth Bank of Australia ("the Bank") had been terminated on 13 March 1996. The application is now before the Industrial Relations Court of Australia and an issue has been raised by the Bank whether there is a justiciable application having regard to my judgment in Carrasco v Kleenmaid Pty Ltd (unreported, Industrial Relations Court of Australia, 15 November 1996). Before considering the legal issue, it is necessary to set out some further matters of detail. The application filed on 1 May 1996 was in the form of R28 which is a form found in a Schedule to the Rules of the Industrial Relations Commission ("the Commission's Rules"). Rule 41 of the Commission's Rules required that the applicant be in that form. The form is in a standard format which requires answers to be given to a number of questions. Question 11 is: "Were you given a written notice of termination?" Mr Edwards completed this question by signifying he had been given a written notice of termination and he attached a copy to the application. He also indicated, in response to a subsidiary and related question, that he had received written notice of his termination on 13 March 1996. The document appended to the application was a letter dated 11 March 1996. It read: "Dear Mr Edwards, Request for ill health retirement Your request for ill health retirement has been approved and will be effective from close of business today. The OSF Committee of Management will consider your entitlement to disablement benefits at its meeting on 15 March 1996. Yours sincerely (signed) PA Holt Manager Operations"