Industrial Relations Commission of New South Wales CITATION: Anthony Poulton v Rail Infrastructure Corportion [2005] NSWIRComm 1081 APPLICANT Anthony Poulton PARTIES: RESPONDENT Rail Infrastructure Corporation FILE NUMBER(S): 5006 of 2003 CORAM: Murphy C CATCHWORDS: Alleged unfair dismissal of employee previously employed under State instrument as plumber - transferred under Federal certified agreement with some limited conditions referenced to Federal Railways, Traffic, Permanent Way Signalling Wages Staff Award 2002 - Applicant found not covered by Federal award - Held S83(1)(A) amendment did not evince intention to broaden NSW jurisdiction over Federal instruments - Second limb argument that coverage by Federal certified agreement (but not Award) did not disbar jurisdiction by State IRC - given restricted language "Federal award" in amending S83(1)(A) of NSW Act - (subsequent to narrow interpretation expoused in Moore Vs Newcastle City Council decision) rejected - application dismissed. Industrial Relations Act 1996 LEGISLATION CITED: Workplace Relatiions Act 1996 Moore Vs Newcastle City Council 77 IR 210 Australian Liquor, Hospitality and Miscellaneous Workers' Union Vs Coca Cola Amatil, Western Australia (1998) WAIR Comm 193 George Grispos and Coca Cola Amatil WA (Print RO657, 15 January 1999) CASES CITED: Dazmay Pty Ltd Vs Thorn 74 IR 182 David Robert Rylands Vs Quality Images Pty Ltd Bishop C. in Matter No. 1597/88 on 20th August, 1988 (unreported) HEARING DATES: 02/02/2005 DATE OF JUDGMENT: 05/31/2005 APPLICANT Mr M Easton of Counsel LEGAL REPRESENTATIVES: RESPONDENT Mr M Brennan, Solicitor of Corrs Chambers Westgarth Lawyers DECISION: - 28 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MURPHY C 31st May, 2005. Matter No IRC 5006 of 2003 Anthony Poulton and Rail Infrastructure Corporation Application by Anthony Poulton re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2005] NSWIRComm 1081 1 The hearing of this matter took place on the 2nd February, 2005 and it concerned a threshold jurisdictional issue of whether Mr Poulton could bring an application under Section 84 before the State Industrial Relations Commission, having regard to arguments as to whether or not he was covered by the provisions of the Federal Award and having regard to a recent amendment to Part 6 Unfair Dismissal provisions, namely Section 83(1A) (Application to Federal Award Employees). 2 The parties were represented in the case of the applicant by Mr M Easton of Counsel instructed by Ms C Shah, Solicitor, whilst the respondent was represented by Mr M Brennan, Solicitor for Rail Infrastructure Corporation, with Mr H Powell, Industrial Relations Manager. 3 The matter proceeded on the basis of submissions and no oral evidence was bought. The parties provided written submissions prior to the hearing. Background Argument: 4 The background of the application was that Mr Poulton had filed a claim before the Australian Industrial Relations Commission which had gone before Deputy President Cartwright of the Federal Commission, but was withdrawn by Mr Poulton on the basis that he should have access to the State Industrial Relations Commission in view of the contentions in respect of the instruments which covered or otherwise purported to cover his employment with Rail Infrastructure Corporation. 5 The starting point was that there was no argument between the parties that Mr Poulton's employment was covered by a Federal Certified Agreement, which Mr Easton believed was not fatal to his case for reasons dealt with later. Where the parties differed was, that the respondent contended that he was also covered by the provisions of a Federal Award, which underpinned the employment conditions covered by the Certified Agreement and left no doubt that jurisdiction was denied in the State sphere. It argued that the Federal Award by the terms of the Certified Agreement is to be read in conjunction with the Certified Agreement, which did apply to Mr Poulton's employment. Because the Federal Certified Agreement makes reference to a particular Federal Award and because there was a Memorandum of Understanding stating that the Federal Award underpinned the conditions of persons covered by the Certified Agreement, then therefore Mr Poulton's conditions are covered by the Federal Award - thus denying him access to the State Commission. The Federal Award concerned was the Railways, Traffic, Permanent Way and Signalling Wages Staff Award 2002. This was marked MFI 1 during proceedings. 6 The history of Mr Poulton's coverage by industrial instruments included that he was previously employed under a State Award as a plumber, namely the Government Railways (Building Trades Maintenance Staff) Award. 7 The respondent contended that by way of a Memorandum of Understanding, Mr Poulton's job was reclassified to make him an Infrastructure Worker as part of a broader skills based classification structure. 8 Also relevant to the argument developed later in these submissions was that Mr Poulton does not need to be bound by a State Award in terms of the jurisdictional argument, as he is a public sector employee coming within Section 83(1)(a) "any public sector employee". 9 As already mentioned, there is no argument that a Federal Certified Agreement marked MFI 2 in these proceedings, namely, Railway Infrastructure Corporation Enterprise Agreement 2002, applied to Mr Poulton, but the first limb of the argument before the Commission by Mr Easton was however, that that Certified Agreement could not simply purport to enlist the Federal Award to also apply and underpin his conditions as claimed by the respondent, and therefore discount his claim to be covered by the State jurisdiction. If the Commission finds the Federal Award does apply, Mr Easton's argument finishes there. 10 He contended that, on the other hand, should the Commission find that Mr Poulton is not so embraced by the Federal Award as such, then the question arises as to whether as a person not covered by such Federal Award, he can successfully claim to be included under Section 83(1) (b), as "any other employee" (within the salary limitation). Such an argument also takes into account limiting the exclusions of persons covered by Federal instruments to a strict requirement that they be covered by a Federal Award. But, if Mr Poulton is merely covered by the Federal Certified Agreement and the Memorandum of Understanding, then if the Federal Award provisions contained in MFI 1 are not found to have captured him into the Federal Award provisions, through the underpinning argument, then Mr Poulton, according to Mr Easton, is not excluded by the reference to Federal Award employees under Section 83(1A). 11 The Commission was also required in the process to have regard to the Full Bench of this Commission decision in Moore Vs Newcastle City Council, a decision of Bauer, Hill and Hungerford JJ, Buckley C. on the 30th October, 1997, reported at 77 IR 2010, which preceded the amendments referred to as Section 83(1A) (Application to Federal Award employees). Applicant's case: 12 Mr Easton began his submissions with the assumption that whilst the applicant is employed under a Federal Certified Agreement, he is under the Federal Award. 13 There are two central arguments Mr Easton said, the first aspect to consider is whether or not Mr Poulton is covered by the terms of the Federal Award, and if he is, then his application falls foul of Section 83(1A) and he becomes excluded because he does not have a right under the Federal legislation to file a claim. 14 If the respondent fails to convince the Commission of that, then Mr Easton said the second question arises of whether or not a Public Sector employee, which Mr Poulton was, whose employment is covered by a Certified Agreement, but not by a Federal Award, has the capacity to make an application under Section 83. 15 Mr Easton then dealt with the first argument in respect of the coverage provided by the Federal Award, giving the history of Mr Poulton's employment, firstly under the State Award as mentioned earlier, which was moved to a Federal Certified Agreement registered in 1998 and then renewed in 2002 (see MFI 2). Mr Easton continued by reference to the Memorandum of Understanding, which he understood the respondent to be contending had the legal effect of altering Mr Poulton's terms and conditions of employment. This was contested by Mr Easton on the basis that he is either covered by a particular industrial instrument or he is not, which he described as the starting point at which the respondent's submissions fall down. 16 He dealt further with the respondent's argument which claims that the Federal Certified Agreement refers to a Federal Award as underpinning the employment conditions of those employees covered by the Certified Agreement, and therefore to be read in conjunction with the Certified Agreement, making Mr Poulton subject to that Federal Award. 17 Mr Easton claimed that there was fundamental problems with that underpinning argument, which relies upon the Federal Certified Agreement referring to the Federal Award, and aided by the Memorandum of Understanding, because the terms of the award (MFI 1), 1 do not themselves appear to bind Mr Poulton. He took the Commission to Clause 7.1 of the award as a starting point, which states that the award is binding upon the Australian Rail, Tram and Bus Industry Union and all employees eligible to be members of the union, and who are employed in any of the classifications, occupations or callings in this award and employed by an employer bound by the award. Whilst acknowledging that Mr Poulton could be captured within the realms of the union's rules and be eligible to join the union, whether he has or not is irrelevant, because he is not employed in any of the classifications, occupations or callings of the award. 18 Mr Easton next took the Commission to part 3 under the award dealing with the New South Wales Rail Operations and contended that suffice it to say that Mr Poulton's occupation as a plumber does not fit within those listed in Clause 36. He claimed that the respondent has not identified any particular classification within the award to apply to Mr Poulton, although acknowledging that the respondent did not rely upon Mr Poulton being bound by the strict terms of the classifications as such. 19 Mr Easton submitted that the position is that the respondent who is asserting the lack of jurisdiction of this Commission needs to establish the fact, and in that process, identify the Federal Award which applies, which they will be unable to do in this case. 20 Mr Easton submitted that the fact that the Certified Agreement says in its terms that it has to be read in conjunction with the Federal Award and other instruments, does not make Mr Poulton an employee covered by that Federal Award. Such references must simply be seen as a drafting tool, a shorthand attempt at incorporating another instrument. 21 He provided an example, that if a Federal Certified Agreement was to apply to rail workers and specifically provide that all conditions in relation to hours of work are covered by the Shop Employees (State) Award, such a provision does not make the rail workers covered by the terms of that Shop Employees Award. It simply means that they are covered by the Certified Agreement, and that their terms and conditions are exactly the same as those covered by the Shop Award. However, it does not make that award apply to them. One cannot expand the operation of an award by making a Certified Agreement. 22 He gave the further example of an award which might be used to compare conditions in a Certified Agreement under the no disadvantage test, which again, he says, still does not make the underpinning award apply to the particular employee. Either he is covered by that Federal Award or he is not. 23 Mr Easton reminded the Commission that Mr Poulton does not need to be bound by a State Award, such as the Government Railways (Building Trades Maintenance Staff) Award, which is the award that used to apply to Mr Poulton, as he is a public sector employee entitled to access on that basis under Section 83. 24 The Commission was referred to Clause 14 of MFI 2, the Certified Agreement, with its reference to the Infrastructure workers under the Track and Structures Group, shown as STREAM. The employer's reliance upon the argument that, because the certified agreement has this classification of infrastructure worker and because the State Award does not, the latter instrument cannot apply (and therefore it cannot come within the State system), can be countered on the basis that because of the specific inclusion of public sector workers under Section 83, there does not have to be any State Award coverage. 25 Regardless of what internal payroll classification or new human resources structure classification that he is given, if the occupation does not fall within the terms of the instrument, then it does not apply. Otherwise, employers could simply unilaterally reclassify employees out of awards. 26 Mr Easton dealt with the case references by the respondent in its submissions to the Western Australian Industrial Relations Commission and a subsequent reference to the decision of the Australian Industrial Relations Commission in relation to Coca Cola Amatil as being irrelevant on the basis that those cases concerned the fact not contested by Mr Easton, that a dispute notification covered the employee, and therefore he was outside the State system. The distinguishing feature in this case is that an unfair dismissal claim is involved, which is an entirely different question to the dispute notification. 27 Mr Easton then took the Commission to the second question, which is also the subject to written submissions of whether, assuming that he is not covered by a Federal Award (but covered by a Certified Agreement), whether Mr Poulton (as a public sector employee) can make a claim under Section 83. 28 It was agreed that that second argument should await the respondent's reply to Mr Easton's submissions in respect of the first question, i.e. as to whether or not the Federal Award covered the applicant. Respondent's Case: 29 Mr Brennan took the Commission to the background as to how Mr Poulton's employment changed through the different employing entities and the transition from the State system to the Federal system. Rail Infrastructure Corporation was created as a State owned corporation after a merger between two entities, being the Rail Access Corporation and the second being the Rail Services Australia in 2002. He alluded to the 1999 Memorandum of Understanding and in an effort to deal with Mr Easton's argument that the Memorandum did not affect the applicant's legal rights, he attempted to tender to the Commission certain correspondence which supported his contention of a transition of certain employees from one system to the other. That matter is dealt with later. 30 He next referred to the relevant argument as to the underpinning award - post transition - for these employees from being covered by the Public Transport Commission of New South Wales Permanent Way and Signalling Grades 1960. The Memorandum of Understanding was marked MFI 3. Mr Brennan told the Commission that it was not disputed that the applicant was classified as an infrastructure worker after the transition, although Mr Easton contends that his previous classification of plumber could not be found in the Federal Award. He believed that Mr Easton did not appreciate that after the transition, the applicant ceased to be a plumber and became an infrastructure worker with different tasks, and he assimilated into the infrastructure worker teams. He alluded to the withdrawal of Mr Poulton's previous application before the Federal Commission, with Senior Deputy President Cartwright, and the fact that he would be entitled to reinstate his application in the Federal Commission with leave of the Federal Commission, pursuant to Section 170H(b)(a) of the Workplace Relations Act. 31 Mr Brennan attempted to provide the Commission with two documents related to the transfer of Mr Poulton to the new classification. However, in view of the objections of Mr Easton, which went to the fact that the respondent had not provided such correspondent in evidence and no oral evidence was given in support of the documents, the Commission did not accept the documents into evidence at that point, and the case proceeded. In the process, Mr Easton disparaged the relevance of the documentation on the basis that there was no significance in the fact that the applicant received a pay rise in respect of his coverage by the Certified Agreement - that much was agreed, and the real question today is whether or not the applicant, who is actually covered by the Certified Agreement, is also covered by the Federal Award, and whatever they wrote to him would not alter the situation. He repeated that no employer by way of a letter can make an award apply to someone's employment, and repeated the colloquial example of where a person may be employed as a solicitor, but is written to saying his terms and conditions will be those of the Shop Assistant's Award. This does not make him a Shop Assistant or able to sue in respect of the Shop Assistant's Award. 32 Mr Brennan, at this stage, continued his representations as maintaining that the applicant is covered by the Federal Award and maintained that the documents would have shown a transition of a group of workers when there was no longer building maintenance work available, and becoming infrastructure workers as a team, and being told that the Federal Award would now underpin their conditions. 33 Mr Brennan took the Commission to MFI 2 Clause 2.4 being the Certified Agreement at page 8, where there is a reference to Railways, Traffic, Permanent Way and Signalling Wages Staff Award 1960. Whilst acknowledging this does not necessarily mean that the applicant is a Federal Award employee, Mr Brennan maintained that it was indicative of the fact that the Federal Award does underpin the agreement, but more importantly, in the award itself, the MFI 1 - Clause 7.1, the award is stated as being binding on members eligible to be members of the Tram and Bus Industry Union, which could apply to Mr Poulton after his transfer as an Infrastructure Worker. Further at Clause 7.2.2, the Rail Infrastructure Corporation is one of the parties named as respondent to the award. This was shown at page 76 Clause 57 of MFI 1. 34 Mr Brennan highlighted Clause 60.2 where the classification of Labourer is shown and demonstrates that after his transfer, Mr Poulton was a labourer. He repeated that even though employees were plumbers and other trades in terms of the maintenance, once they are transferred across, they became infrastructure workers and then became labourers under the award. It was further explained to the Commission that under that classification, the intention was to build up such workers track skills in line with their new rate of pay, so that building trades maintenance work ceased, and there is only track maintenance work available. It was thought by Mr Brennan that Mr Poulton was not actually informed in the correspondence to him that he would be known specially as a labourer, because the correspondence spoke of the classification as infrastructure worker. 35 Mr Easton interjected to point out at this stage, that there was no evidence bought by the respondent as to why, what is apparent on the face of the document should be read as something completely different, with the Commission being asked to read labourer for infrastructure worker without evidence as such. 36 Mr Brennan submitted that whilst it was unfortunate that the term infrastructure worker does not appear in the award, this does not preclude the applicant from fitting in within a classification of the award, and therefore being employed therein under the Federal Award for the purpose of Section 83(1)(a) of the Industrial Relations Act, and therefore precluded from bringing his claim. 37 Mr Brennan in answer to questions from the Commission suggested that the applicant at the very least acquiesced at the increased pay rates when he became an infrastructure worker, which again was indicative that he was covered by the Federal Award, especially when combined with the letter received by Mr Poulton, transferring from one division to another, and especially again that a large back pay was involved in the situation. This point was disputed by Mr Easton, along with an objection that the respondent was attempting to give evidence at the bar table, when it had failed to bring oral evidence to support much of the submissions in this area. In answer to Mr Easton's objections to the relatively low wage levels shown in the award, Mr Brennan submitted that he did not think it relevant that the Federal Award had lower rates. Mr Easton pointed out in response that the increase in salary came because the Certified Agreement had given him a large increase and there was no debate that the Certified Agreement applies, but his coverage by the Federal Award is in contention. 38 At this point in the case, Mr Easton submitted that the respondent had not explained how the Certified Agreement, by mentioning some other Federal Award underpinning the agreement, then makes an employee who is not otherwise covered by the Federal Award, suddenly be covered by it. He saw this as the fatal flaw in the logic of the respondent's argument, because otherwise he could write into your agreement that Shop Assistant's Award will underpin this award, (and it does not make an employee a shop assistant), and it does not make him a labourer either. Whilst agreeing to some extent to that argument, Mr Brennan distinguished it on the basis that what the respondent contends is that Mr Poulton is covered by the Federal Award because not all of his terms and conditions were covered by the Certified Agreement - made clear in the correspondence to him. If he had not transitioned across, he would not have got coverage under the Federal Certified Agreement, and when he did so, his conditions were underpinned by the Federal Award and the work being performed fits within the award classification. 39 Mr Brennan pointed out that other allowances were provided for under the Federal Award, and given that he receives such monies, he is covered by the Federal Award. 40 On that point Mr Easton contended again using the example of shop assistant, that if the Certified Agreement allowed him the laundry allowance under the Shop Assistants Award, it would not make him a shop assistant and the terms of the award do not cover him either. 41 Mr Brennan drew attention to the fact that the correspondence sent to the applicant, referred to in submissions, said to him that his remaining terms and conditions would be pursuant to the Federal Award, and that the allowances would be paid under that award, not under the Certified Agreement. If he is within the classifications of the Federal Award and the Certified Agreement does not provide something in his conditions, then he would be provided with that pursuant to the award, and that is what is occurring here. If his classification is included in the Federal Award, and some of his conditions are not covered by the Certified Agreement, then the award must apply. Payment of allowances is provided therein for Mr Poulton. He also instanced the stand down provisions which are in the award, but not in the Certified Agreement, where it is silent on such conditions, and this is so, even though the majority of his terms and conditions are governed by the Agreement. 42 Mr Brennan referred to some case law which went to the question as to how many conditions need to be governed by an award before someone is said to be covered by that award, but in the example offered, advised the Commission that the person in that case was found not to be covered by the award because that person was a salaried staff officer, and the Commission cannot be assisted with reference to case law in this area to any extent. 43 Mr Easton dealt with what he saw as a different approach or dimension in the respondent's argument that because it was contended that the Certified Agreement should be read in conjunction with another instrument, which contained something not covered by the Certified Agreement, that therefore Mr Poulton has access to that other instrument. He believed that it was simply a different version of the same argument. The fact is that the only way that Mr Poulton can get access to the benefit of any of the instruments, was to be actually bound or entitled to something under them in the first place. 44 Mr Easton pointed out that the Certified Agreement had also made reference to the fact that it should be read in conjunction with the Salaried Officers Award of 1955. If Mr Brennan was suggesting that Mr Poulton was covered by that instrument, he would be wrong because clearly his classification is not covered by that award. It is "bye the bye" for Mr Brennan to argue as to how much of a Federal Award should apply before that Federal instrument can be held to have covered employees such as Mr Poulton, because no Federal Award conditions applied to Mr Poulton. There was no concrete link between Mr Poulton and the operation of the Federal Award and you would need to read plumber to be translated to Infrastructure Worker, and then translated to labourer for the award to apply, i.e. where the Federal Award says labourer, that that applies to Mr Poulton. That case is simply not being made out by the respondent. He again reminded the Commission of the onus upon the respondent through the lack of jurisdiction here, and on that basis the Commission would need to be satisfied that no Federal Award applies. 45 The Commission's attention was then turned to the second limb of the argument, that on the assumption that Mr Poulton was not covered by a Federal Award, the question then arises as to whether he was able to make a Section 84 application, recognising that the assumption was not accepted by the respondent, despite his coverage by the Federal Certified Agreement. 46 Mr Easton first commented that the case law on the question was notably barren and the central decision on the area was that of the Full Bench of the Commission given on the 30th October, 1997 in Moore and the Newcastle City Council re Civic Theatre Newcastle reported that 1997 77 IR 210 (referred to earlier). The long and short of that decision was that the Bench concluded that a person covered by a Federal Award could not make an application under the State Industrial Relations Commission provisions, despite the fact of some changes in the Federal legislation, which meant that persons covered by a Federal instrument, but not employed by a constitutional corporation, could not make applications federally, the question was whether they could come back to the State jurisdiction. 47 The approach of the Full Bench in Moore and the City of Newcastle was in response to certain questions asked by the Bench itself as seen at page 216 of the reported decision "in our view the question of the potential conflicts and resultant invalidity of the State legislation may be reduced by the following propositions: 1. If the 1996 State Act be beyond power or does not on its proper construction apply to the applicant, then inconsistency could not arise and the applicant would be left without any remedy available to him under the Commonwealth Act. 2. If it be found on a proper construction of the 1996 Act that it does apply to persons employed under the Federal Awards, then the potential for inconsistency with the Commonwealth Act would arise. 3. If (2) be the case, then the Commonwealth Act, the Federal Award and the 1996 State Act would need to be considered in the light of the principles and tests available to resolve a conflict in the sense of constitutional inconsistency by reason of Section 109 of the Constitution and perhaps Section 52 (1) of the Commonwealth Act." 48 The dilemma for the Full Bench in that case was whether the State legislation on its own intended to provide a vehicle for Federal Award employees to apply under Section 84. They found that the background circumstances of the legislation and the two industrial systems, Federal and State, meant that, in the absence of a clear intention to the contrary, the New South Wales Parliament did not intend the State Unfair Dismissal provisions to apply to Federal Award employees. 49 As a result of the Moore and City of Newcastle decision, Section 83(1)(A) was inserted into the New South Wales Act to allow Federal Award employees, who could not make an application in the Federal system, to make an application in the State. Accordingly, that provision updates Moore and the City of Newcastle, because it expresses a clear intention of the New South Wales Legislature to cover some employees covered by a Federal instrument. 50 By implication, the duality and separateness of the systems that they were talking about in that case have been crossed. Mr Easton submitted that in essence by enacting that amendment in S.83(1)(A), the State Parliament "crossed the Rubicon" into regulating unfair dismissal provisions for Federal Award employees. In doing so, they place a limitation on that regulation, which is s.83(1)(A) and that is that Federal Award employees who cannot make an application Federally because of the exemptions provided for in the regulation, cannot make an application in the State. 51 Mr Easton submitted that s.88(1)(A) significantly changed the playing field for work of the New South Wales jurisdiction, as it was clearly intended to move someway into Federal regulation. He drew attention to the fact that Mr Poulton's case was different than the case of Moore and the City of Newcastle in that Mr Poulton is a public sector employee, which is a question not considered in Moore and the City of Newcastle, but it is a relevant difference, because in terms of looking at State Parliamentary intentions, it is clear on its face, that Section 83(1), applies to the dismissal of public sector employees, unqualified. This was a clear and unambiguous intention to cover public sector employees in this regime. 52 This was so, even if they had gone into a Federal regulation. 53 In summary form, Mr Easton repeated that section 83(1) excludes people from the State jurisdiction who could file Federally, but are excluded by the Federal exclusions. For instance, someone on probation under a Federal Award. 54 Mr Easton acknowledged that there was a potential logical flaw in the way Section 83(1) was drafted, and for that reason took the Commission to the second reading speech. 55 There was an additional freedom in that, as a public sector employee, he believed there was now an intention by State Parliament to cover such employees with the Unfair Dismissal provisions. 56 The amending section s.83(1)(A) is further dealt with by Mr Easton. He first covered the issue of the decision in Moore and Newcastle City Council, which interpreted the use of the words in the heading of the Act under Section 83 "any other employee" and found in the negative. In the context of the history of separate systems it found - that, unless State Parliament explicitly indicates its intention of going into the Federal sphere, then the phrase "any other employees" in Section 83 is to be read down to mean those not covered by the Federal System. That is the short version of Moore and Newcastle City Council. Mr Easton acknowledged that there may be public sector employees however, who are clearly covered by Federal Awards, who would only have access to the Federal system. But here, the New South Wales parliament has "crossed the Rubicon" to move into that area and they have done so by explicitly incorporating Federal Award employees and then just as explicitly excluding Federal Award employees who have a remedy in the Federal system. He asked the Commission to consider that the New South Wales legislature has on three occasions used the expression Federal Award and inserted a definition of Federal Award under Section 83 Subsection 5 to be an award within the meaning of the Workplace Relations Act of the Commonwealth. 57 Mr Easton commented upon the fact that there are other examples in the unfair dismissal provisions of the Federal legislation of a definition of Federal Award employee, defined to include employees covered by Certified Agreements. There is only one conclusion to arrive at in respect of the New South Wales Parliament's intention by leaving this definition of Federal Award in the State Act and that is that the only exclusion to apply is employees who are covered by Federal Awards, who have a right to apply Federally. He repeated that on three occasions the New South Wales Parliament has retained only that exclusion of Federal Award employees who have access to the Federal Unfair Dismissal system. 58 Accordingly, even though someone such as Mr Poulton, might be under a Workplace Agreement, but not Federal Award, he could apply under the Federal system because of the definition of the broader definition of Federal Award therein, but under the State definitions, they are not. 59 Mr Easton agreed that the effect of his argument was that a person under an Australian Workplace Agreement, which provided that the Federal Award no longer applied to that person, then that person would fall within those permitted to apply under the State provisions. He quickly qualified that those persons under an Australian Workplace Agreement, also had the award provisions applying as a perfectly valid drafting technique in the Federal system. He alluded to the simplified award system where it is found that basically every Building Industry Certified Agreement in New South Wales makes reference to the National Building Infrastructure Industry Award and mean that they apply as a condition of the Certified Agreement, as a drafting technique to import the conditions. Mr Easton quickly distinguished the situation earlier argued by him that you cannot however, in the case of Mr Poulton, by the Certified Agreement give someone an entitlement to another instrument and by way of example referred to the Shop Assistant analogy used by him earlier. He instanced where a construction worker and the terms of their agreement is paid so much per week, but that fact does not entitle him/her to go to the Chief Industrial Magistrate's Court and make a claim under the Shop Award for a laundry allowance. It only entitles him/her to go to the Chief Industrial Magistrate's Court to make a claim under the Certified Agreement. 60 He reasoned that because of the subsequent amendments to the legislation, the first question that was considered in Moore is now to be answered differently as to the way the Full Bench did it in Moore. The next matter that comes up is that according to Moore, there is a potential inconsistency between the State and Federal systems dealt with as orbitor in Moore's decision where the Bench did speculate in part that the Commonwealth Legislation could have chosen to leave open aspects of the State Legislation for employees. 61 Mr Easton maintained that the intention of the New South Wales Parliament was evinced by Section 83(1A) to then work into the Federal system. It overrode the presumptions against exceeding legislative constitutional boundaries as referred to in the Moore and Newcastle City Council case. He further stated from the decision of the Full Bench where it was said "it seems to us it evinces an intention to putting in place a State scheme applicable to employees within the State Industrial Relations .............. assisting that view, other remarks of the Minister." By contrast, Mr Easton believed the remarks of the then Minister in the second reading speech in respect of Section 83(1A) shows the legislature had then evinced an intention to cross the boundary into the area of Federal Regulation. He maintained that it was a matter for the State Legislature within the confines of the constitutional powers and limitations and it is clear that the Federal legislation had left open the possibility of dual applications. He made reference to Section 170H(a) and (b). He believed paraphrasing of Section 170H(a) was that the operation of subsection H(b) and subsection H(c) are not intended to limit the rights that someone might have under the State legislature. It was upon becoming aware of the operation of Section 170H(b) that the applicant withdrew his application before Deputy President Cartwright of the Federal Commission because it does not provide him with an alternative, where there is an action already on foot in the State. That subsection clearly contemplates applications in two jurisdictions and deals with it by saying you can only do one at a time. Section 170L(z)(iii) relates the operation of Certified Agreements in the Federal area and if the Commission looks at Section 170L(z)(i), then this must be seen as a provision that limits the manner in which Certified Agreements can prevail over the terms and conditions of State law, when it reads "subject to this section, a Certified Agreement prevails, over terms and conditions of employment specified in the State law, State Award or State Employment Agreement to the extent of any inconsistency." Section 170L(z)(iii) says: "that if a State law provides protection for an employee against harsh, unjust and unreasonable termination of employment, subsection (i) is not intended to affect the provisions of that law, so far as those provisions are able to operate concurrently with the Certified Agreements." 62 If within the framework of Moore and Newcastle City Council, the State legislation has no intention to cover the Federal field, that is in the face of Federal instruments, then Section 170L(z)(iii) has no work to do, because there is no State law to apply in that situation for the Certified Agreement to affect it. By implication however, the Federal Parliament is contemplating the possibility that State law could exist, that could be affected by a Certified Agreement, given Section 170H(b) - you can only have one file in place. 63 Returning to the respondent's submissions, on those points raised by Mr Easton in the latter part of his submissions, Mr Brennan repeated that he was arguing that the applicant was covered by both the Federal Certified Agreement and a Federal Award, but that he is in any event, entitled to allowances pursuant to the Federal Award, because the Certified Agreement did not cover every single term and condition of his employment. 64 Mr Brennan submitted that it was agreed that the New South Wales Parliament had crossed into the Federal jurisdiction by the insertion of Section 83 (1)(A) in relation to the Moore case, that previously inhibited Federal employees from bringing proceedings in the New South Wales Industrial Commission. However, that provision was bought in purely to allow Federal Award employees with no access to the system, intended to overcome the problem such as where Federal Award employees who were not employed by constitutional corporations, and therefore also do not have access to the Federal system and therefore providing some access to the State system. 65 If Mr Easton's submission is correct, then any person employed under a Certified Agreement or an AWA in New South Wales as opposed to Federal Award, who otherwise has access to the jurisdiction, such as public sector employees, would have access to the State Commission. Mr Brennan believed that such a scenario would be anomalous to say the least, in light of the second reading speech and in the light of the use of the words in Section 83 "any other employee" (i.e. below the salary limit) might also be affected. Mr Brennan said he did not believe that there was such an intention of the legislature in New South Wales when they inserted Section 83(1)(A) The mischief intended to be overcome by the insertion of Section 83(1)(A) did not include an intention to cover persons such as Mr Poulton who already have access to the Federal jurisdiction, when he is already entitled to make application to the AIRC. There is an anomaly at the least and possibly an ambiguity in relation to the Act, particularly when considering Mr Easton's reference to the definition of Federal Award, meaning an award within the meaning of the Workplace Relations Act. 66 Mr Brennan referred the Commission to specific sections of the Minister's second reading speech and quoted the Minister as follows: "the effect of this decision has been to create a lacuna in the availability of a remedy against unfair dismissals. Persons who are Federal Award covered employees, but his employer was a constitutional corporation, were covered by other narrow constitutional heads of authority, are not able to apply to the Australian Industrial Relations Commission for remedy against unfair dismissal." After further discussion of Moore, the reading speech goes on: "this means that Federal Award covered employees in New South Wales who are not employed by corporations, have no remedy against unfair dismissal available in either jurisdiction. The affect of the reliance on the corporation's power would be to deny access to the Federal Commission by non-corporate employers covered by Federal Awards." Accordingly, complimentary State Legislation was sought to confer power on the Australian Industrial Relations Commission in relation to Federal Award covered employees, beyond the scope of the Federal Legislative power. 67 He described Section 83(1)(A) as complimentary legislation. Mr Easton, he suggested, is correct in saying that the legislature wanted to go into the Federal sphere, but only in relation to Federal Award employees, who did not have access to the jurisdiction. 68 Mr Brennan in answer to the second argument by Mr Easton, that if Mr Poulton is not covered by a Federal Award, but only a Certified Agreement, that section 83(1)(A) does apply to grant access to that State. He submitted that in the alternative that there is an anomaly with the State Legislation and possibly an ambiguity, although acknowledging that it does seem extraordinary that the State Legislation makes only reference to Federal Awards. 69 In his response to the last points raised by Mr Brennan, Mr Easton suggested that the limited approach argued in the Moore case as to the meaning of "any other employee" in its strict terms, covered a Federal Award employee other than any public sector employee (within the remuneration limit). He acknowledged that such an approach to construe the words "any other employee" in isolation was contrary to the modern approach to statutory interpretation which directs attention to the purpose of the statute and the contexts in which the expression appears, and therefore the Full Bench in the Moore case refused to construe the general phrase "any other employee in Section83(1)(b) of the 1996 State Act as embracing Federal Award employees without considering the statutory context in which it rests. The Bench on that occasion after considering the history and the context of the dual system refused to see that there was any intention by the New South Wales Parliament despite the fact that the words "any other employee" literally expresses what might be construed as an intention to intrude into the area of federal operation. 70 Mr Easton finished on the theme that this Moore approach all changed since State Parliament has ventured into the field where Federal employees are regulated by Section 83(1)(A) and whilst the reading speeches indicate they did so to remedy a particular mischief, i.e. the anomality with Federal employees not part of a constitutional corporation, they nonetheless moved away from the circumstances described in the Moore and Newcastle City Council Case. Accordingly, Mr Easton asked the Commission to read Section 83 in the strict sense to apply to Mr Poulton as a public sector employee. It is a logical intention of State Parliament to have the Unfair Dismissal provisions of its own legislation applicable to its own public sector employees, such as the applicant, regardless of anything else. He believed that ordinary employees, not just public sector employees, can now come to the State Commission. CONSIDERATION 71 The respondent in this case failed to satisfy the Commission that Mr Poulton was covered by the Federal Award known as the Railways, Traffic, Permanent Way and Signalling Wages Staff Award 2002. 72 I have accepted Mr Easton's argument that Mr Poulton cannot be taken to have been transferred to coverage of the Federal Award merely by a cross reference within the Federal Certified Agreement by the title of Infrastructure Worker - to be translated and referenced to the classification of Labourer under the Federal Award. 73 The memorandum of understanding and back-up correspondence which purported to transmit Mr Poulton into the Federal Award lacked connection in the absence of sufficient proof that Mr Poulton's classification of plumber can be translated into Infrastructure Worker and then into Labourer under the award. The fact that certain allowances under the Federal Award were applied to him does not of itself bring him within the award. On the basis of the evidence before me, such connection is little more than a convenient method of payment for various ancillary conditions of employment. 74 It then falls to the Commission to consider the second limb of Mr Easton's argument, which was advanced on the assumption that, whilst it was agreed that the Federal Certified Agreement applied to him, the Federal Award did not (and given that I have now found him not to be covered by the Federal Award). 75 I have carefully considered the reasoning by Mr Easton, which in part summary, first sought to distinguish the Commission's findings in the Moore Vs Newcastle City Council case on the basis that the grounding for the reasoning of the Full Bench in that case had changed with the passage of the amending Section 83 (1)(A). The section reads as follows: 83(1)(A) [Application to federal award employees] This Part applies to the dismissal of an employee even if the person was employed in this State under a Federal award. However, this Part does not apply to the dismissal of any such employee if: (a) the person is entitled to make an application to the Australian Industrial Relations Commission with respect to the dismissal on the ground that it was harsh, unjust or unreasonable, or (b) the person would have been entitled to make such an application but for the exclusion of the person from the relevant provisions of the Workplace Relations Act 1996 of the Commonwealth (being an exclusion of a kind referred to in subsection (2)). 76 Mr Easton's argument also relied upon a restricted interpretation of the use of key words of S.83(1A) "........even if the person was employed in this State under a Federal Award." 77 It is appropriate to quote from the transcript to follow - Mr Easton's argument where he submitted, commencing at page 40: "But New South Wales Parliament has cross the Rubicon to move into that area and they have done so by explicitly incorporating federal award employees and then explicitly excluding federal award employees who have a remedy in the federal system. Now, the definitions that are used in the legislation to do that are very important because the New South Wales Parliament, not once, not twice, but three times, has used the term, a person employed in this state under a federal award, and then inserted a definition of federal award which is at section 83(5) to be an award within the meaning of the Workplace Relations Act of the Commonwealth. There is other definitions. For example, in the unfair dismissal divisions of the federal legislation, there is a definition of federal award employee which is defined to include employees covered by certified agreement. But you must - there is only one conclusion as to the New South Wales Parliament's intention by leaving this definition of federal award, and that is that the only exclusion to apply is employees who are covered by federal awards who have a right to apply federally. And as I say, and I have not brought each amendment to the legislation, and I apologise for that, but not once, not twice, but three times the New South Wales Parliament has retained only that exclusion for federal award employees who have access to the federal unfair dismissal system. That is right. That is right. Even though someone under a workplace agreement but not a federal award, can also apply under the federal system, you see, because under the federal definition, they would be considered to be a federal award employee, but under the state definitions, they are not . And that is unambiguous from the definitions used in the state Act. So in terms of whether or not parliament intended to--" 78 Combined with the above reasoning the Commission has considered the key related argument, that where the Moore and Newcastle Council case was largely decided on the basis that the New South Wales parliament had never evinced an intention to enter into the realm of Federal coverage, that foundation had changed with the enactment of Section 83(1)(A). Mr Easton's rationale was predicated upon that important distinction, not available at the time of the Moore decision, and therefore a broad interpretation of the effect of what Mr Easton colourfully described as the New South Wales legislature having "crossed the Rubicon" into coverage of certain employees covered by Federal Awards. He asked the Commission therefore, to note that, since the amending section 83(1)(A), the New South Wales Parliament has intended to cover those certain employees, subject to Federal instruments. 79 In my view the most important point made by Mr Brennan was that Section 83(1)(A) restricted the class of such employees, who, whilst covered by a Federally registered instrument, do not have a remedy to bring an unfair dismissal claim, but only by virtue of not being employed by a corporation. 80 Having traversed the Minister's second reading speech in respect to the Section 83 (1)(A) amendment, I am satisfied that Mr Brennan is correct in maintaining that the amendment was intended to address a particular mischief only - namely to provide a remedy in the State jurisdiction for those unable to advance their claim Federally because they are not employees of a corporation. 81 A brief analysis of the main parts of the Minister's speech is necessary. 82 After referring to the reliance upon the Corporations Power under the constitution, which means that the Federal unfair dismissal provisions can only have application to corporations, the Minister then referred to employees under Federal Awards affected by that limitation. 83 He next referred to the limitation placed upon the state system for catering for such employees as an alternate jurisdiction, espoused by the decision in Moore Vs Newcastle City Council - that persons whose employment had been covered by a Federal Award were not able to bring unfair dismissal claims to the New South Wales Commission. That decision therefore created a gap in the availability of a remedy against unfair dismissal, i.e. employees under Federal Awards, but not employed by corporations. 84 The specific intention behind the Section 83(1)(A) amendment is best seen in the following extracts: "The Commonwealth Government was aware that the effect of its reliance on the Corporations Power would be to deny access to the Federal commission in relevant termination cases to employees of non-corporate employers who were covered by Federal awards. It accordingly sought complementary State legislation to confer power on the Australian Industrial Relations Commission in respect of Federal award covered employees whose employers were beyond the scope of Federal legislative power. The Industrial Relations Amendment (Federal Award Employees) Bill is in the terms envisaged by the Workplace Relations Act. As the bill now before the House is consistent with the Federal Workplace Relations Act, and has been approved by the Federal workplace relations Minister, I assume that it should receive the support of the Opposition. I am also sure that crossbench members will appreciate the desirability of legislation to ensure that employees are not denied a remedy against unfair dismissal merely because their employer lacked corporate status. This bill will remedy a small but significant deficiency in the availability of unfair dismissal remedies to workers in New South Wales. I commend the bill to the House." 85 Mr Easton's relied upon the Section 83(1)(A) amendment as a demonstration of a change in the situation set out where the Full Bench in Moore observed at page 226 of the decision: "We can find no section of the 1996 State Act which evinces an intention to cross the boundary into the area of federal regulation so that if s.83 were to be construed as covering federal award employees it would, in the context of the statute as a whole, be unique. That is to say nothing as to the effect of s.152(1A) of the Commonwealth Act not being taken to show an intention to cover the field in respect to the termination of an employee's employment to the exclusion of a State law or a State award, but simply that s152(1A), and we would add s.170 HA, cannot give s83 a coverage over federal award employees which s83 does not otherwise have. That is, and can only be a matter for the State legislature within the confines of its constitutional powers and limitations". 86 Further into the decision at page 229 the following extract is relevant to the argument of Mr Easton that the New South Wales Parliament later did evince an intention to cross the line into Federal Award employment: "We are quite unable to accept from that above extract, or indeed from the Minister's speech as a whole, any express or implied intention to include within the definition of "employee" those persons who were covered by Federal awards in anticipation that the Commonwealth law might be amended during the course of operation of the proposed 1996 State Act". 87 Given the obviously special circumstances outlined in the Minister's speech in respect of the s83(1`)(A) amendment intended to be covered, I am unable to take the broad interpretation offered by Mr Easton, along the lines that the New South Wales Parliament's intrusion to cover a limited class of Federal employees, should be interpreted as an intention of the type actually disclaimed by the Full Bench in the Moore case. In fact the amendment was no more than directed at rectifying a specific "lacuna", as the Minister termed it in respect of allowing certain legitimate claims for certain Federal employees not employed by corporations 88 At best, the reliance by Mr Easton upon the more restricted term "Federal award" within S.83(1)(A) creates an ambiguity, not sufficiently clarified by the relevant definitions in legislation to distinguish from other industrial instruments such as the Federal certified agreement covering Mr Poulton. The Commission notes that some of the language cited above from the Full Bench in the Moore case seems also to be imprecise, in that no distinction seemed necessary in making the observations as to the lack of "any express or implied intention to include.....persons who were covered by Federal awards." When considered in tandem with the strict intention enunciated by the Minister in respect to the S83(1)(A) amendment, the only conclusion I am able to arrive at is that Mr Easton's arguable proposition should not be given the life espoused by him. 89 Accordingly, the application is dismissed. J P Murphy Commissioner. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.