Industrial Relations Commission of New South Wales CITATION: Nestoroski v. BlueScope Steel (AIS) Pty Limited [2006] NSWIRComm 1140 APPLICANT Lupco Nestoroski PARTIES: RESPONDENT BlueScope Steel (AIS) Pty Limited FILE NUMBER(S): IRC 2929 of 2006 CORAM: Connor C CATCHWORDS: termination of employment - workplace injury - claim of unfair dismissal - jurisdiction challenged by employer - further application lodged in the Federal unfair dismissal regime - State claim beyond jurisdiction - the obligation to give an undertaking not to proceed under other legislation - leave for discontinuance granted Industrial Relations Act, 1991 LEGISLATION CITED: Industrial Relations Act 1996 Interpretation Act, 1987 Federal Workplace Relations Amendment (Work Choices) Act, 2005 Liddell v. Lembke (1994) 56 IR 447 CASES CITED: Penrith Quarry Case - unreported Woolstar Pty Limited v. Federated Storemen and Packers' Union of Australia (1992) 45 IR 39 HEARING DATES: 26/09/2006 DATE OF JUDGMENT: 09/26/2006 EXTEMPORE JUDGMENT DATE : 09/27/2006 APPLICANT Allison White Nikolovski Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mark Davis BlueScope Steel (AIS) Pty Limited DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Wednesday, 27 September, 2006 Matter No IRC 2929 of 2006 Lupco Nestoroski and BlueScope Steel (AIS) Pty Limited Application under S.84 of the Industrial Relations Act DECISION [2006] NSWIRComm 1140 Preliminary 1 Mr Lupco Nestoroski was employed as an operator in the plate mill of BlueScope Steel (AIS) Pty Limited. He sustained an injury at work on Thursday, 25 March, 2004. He has been absent from work since Thursday, 2 February, 2006 due to his injury and BlueScope Steel terminated his services on Friday, 21 July, 2006. Mr Nestoroski lodged an application under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act, seeking his reinstatement, re-employment or, alternatively, monetary compensation. 2 I understand that Mr Nestoroski has also lodged a claim in the Federal unfair dismissal regime which at present remains unresolved. In those circumstances, BlueScope Steel has opposed Mr Nestoroski's Part 6 application in the State Commission on jurisdictional grounds. Essentially, BlueScope Steel argue that Mr Nestoroski was not entitled to pursue two separate claims at the same time - "...two bites of the cherry...". In view of the fact that Mr Nestoroski has dual proceedings on foot and has proceeded to resolve his claim in the Federal jurisdiction, in my view he would be estopped from subsequently pursuing his Part 6 application. If a remedy is available in the Federal unfair dismissal regime, the matter would ordinarily end there. 3 Mr Nestoroski's Part 6 application was allocated to me and I set it down for a preliminary hearing on Monday, 11 September, 2006 in the Commission's premises at 90 Crown Street, Wollongong. I have a responsibility under S.86 to attempt to conciliate Part 6 applications, viz: "The Commission must endeavour, by all means it considers proper and necessary, to settle the applicant's claim by conciliation." My attempt at conciliation was not successful. And beyond that point there are certain difficulties which arise with Mr Nestoroski's Part 6 application flowing from the operation of the 2005 Federal Workplace Relations Amendment (Work Choices) Act and the regulations made under it. Jurisdiction 4 Work Choices came into effect on and from Monday, 27 March, 2006. As a result individual employees of employers who are trading corporations within the meaning of S.51(xx) of the Commonwealth Constitution and who employ greater than 100 employees - and that would certainly be the case for the Port Kembla steelworks operations of BlueScope Steel - have access to the Federal unfair dismissal regime - but, pending resolution of current appeal proceedings, not necessarily the State Commission. 5 Conversely, by virtue of S.146A(2): "A party to a dispute to which this section applies may apply to the Commission for the exercise by the Commission of such functions with respect to the resolution of the dispute as may be specified in the referral agreement." That would permit BlueScope and a trade union representing the interests of an employee to bring before a member of the State Commission any industrial dispute . But whilst an unfair dismissal - essentially a dispute between an individual dismissed employee and his employer - is clearly an industrial matter [S.6(2)(e)], to my mind it lacks the necessary ingredient to make it an industrial dispute which ordinarily denotes a number of employees acting collectively. 6 For over fifteen years unfair dismissal claims have been heard in the past as a separate code of jurisdiction. In Woolstar Pty Limited v. Federated Storemen and Packers' Union of Australia (1992) 45 IR 39 the Full Bench of the former State Industrial Court (Fisher CJ, Cullen and Peterson JJ) took the view (at p.49) that the counterpart of Part 6 in the 1991 Industrial Relations Act: "…constitutes a code regarding the relief available in relation to unfair dismissals…" The outcome of the Woolstar Case was, in a sense, to free unfair dismissal claims from the industrial apparatus from which the jurisdiction for unfair dismissal claims had originally relied, ie they were no longer industrial disputes, even when the dismissed employee was represented by a trade union. It must therefore follow that a Part 6 application per se is not something which can be covered by a S.146A referral agreement. 7 Nevertheless, the dismissal of a trade union member often promotes an industrial dispute by his fellow workers and a trade union may also seek a dispute order of reinstatement for a dismissed member under S.137(1)(b) which gives jurisdiction to a member of the Commission to: "…reinstate or re-employ any one or more employees who were dismissed in the course of the industrial dispute or whose dismissal resulted in the industrial dispute…" 8 In the past it appeared to me to have been appropriate that a trade union representing a dismissed employee lodge a Part 6 application in preference to it proceeding under S.137(1)(b). As I pointed out in my unreported decision of Tuesday, 17 September, 1996 in the Penrith Quarry Case [Matter No. IRC 5118 of 1996 at pp.2 and 3]: "…It would seem to me to still be preferable in the majority of cases of this nature for the matter to proceed under Part 6. For one thing, the remedies of remuneration for compensation for lost wages between the date of the dismissal and the date of reinstatement or re-employment [S.89(3)] or monetary compensation in lieu of reinstatement or re-employment [S.89(5)] under Part 6 would not appear to be available by way of a dispute order under S.137(1)(b)…" But Work Choices now demands a reassessment of that situation. 9 Moreover, Mr Nestoroski has not to date completed the undertaking required by S.90, viz: "The Commission must not determine an applicant's claim by making an order under S.89 if: (i) another Act or a statutory instrument provides for redress to the person in relation to the dismissal, and (ii) the person has commenced proceedings under the other Act or instrument or has not lodged a written undertaking not to proceed under the other Act or instrument." And in view of the fact that Mr Nestoroski has dual proceedings on foot and has proceeded to resolve his claim under Federal industrial legislation - and that claim would appear to be competent - he may now be unable to pursue his claim under Part 6 as well. 10 There still remains some jurisdictional uncertainty concerning the correct position with such a claim, however. In Liddell v. Lembke (1994) 56 IR 447 the Federal Industrial Court (Wilcox CJ, Keely and Gray JJ) considered the interrelationship between the Federal and State remedies for unfair dismissal and Gray J, in a separate judgment went so far (at p.477) as to suggest that the precursor to S.90 in the 1991 Industrial Relations Act extended to include undertakings flowing from Federal legislation. But that would appear to me to fly in the face of the restrictions which flow from S.109 of the Commonwealth Constitution. I would think it unlikely that State legislation could effectively bind valid Federal legislation. 11 I believe that when S.90 speaks of "…another Act or instrument…" it is properly confined to mean only a State Act or instrument. Ss.65 and 66 of the 1987 Interpretation Act makes that plain. S.65 reads as follows: "An Act passed by Parliament, or by any earlier legislature of New South Wales, may be referred to by the word 'Act' alone." An Act of the Commonwealth or of some other State may be described, by virtue of S.66, by its short title or in such manner as is sufficient to refer to it. But, in the absence of such a special reference, it would ordinarily not apply. In those circumstances, S.90 would not necessarily preclude a Part 6 application being lodged where there was prior Federal unfair dismissal proceedings. In my discretion, I would not be prepared to hear a Part 6 application when there were unresolved Federal proceedings over it. But, in the circumstances, when a trade union in future is directing its dismissed member to complete a S.90 undertaking for abundant caution I would think it to be appropriate for the undertaking to be expressed as covering both State and Federal legislation. 12 I adjourned the proceedings for further conference on Tuesday, 26 September, 2006 (also in Wollongong). BlueScope Steel had foreshadowed that, in the light of the restrictions flowing from Work Choices, at that time it would press for me to dismiss Mr Nestoroski's Part 6 application. I indicated that I would entertain that application in the proceedings on Tuesday, 26 September, 2006. Outcome 13 In any event, on Monday, 25 September, 2006 Mr Nestoroski filed a notice of discontinuance. In the proceedings on Tuesday, 26 September, 2006 Mr Nestoroski was represented by Ms White who sought the discontinuance of his Part 6 application. BlueScope Steel was represented by Mr Davis in the proceedings on Tuesday, 26 September, 2006. Mr Davis did not oppose the discontinuance of the matter. I propose to grant Mr Nestoroski leave to discontinue the matter in accordance with Rule 138. P J CONNOR 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.