Industrial Relations Commission of New South Wales CITATION: Giliberti v. BiLo Pty Limited [2006] NSWIRComm 1035 Applicant Teresa Giliberti PARTIES: RESPONDENT BiLo Pty Limited FILE NUMBER(S): IRC 254 of 2006 CORAM: Connor C CATCHWORDS: termination of employment - claim of unfair dismissal - Federal instrument covering the work in question - whether application within jurisdiction - doubts as to jurisdiction - leave for discontinuance granted - matter to be pursued in the Federal unfair dismissal regime LEGISLATION CITED: Industrial Relations Act 1996 Cohen v. GIO Australia Limited (1996) 40 AILR Rep.104 CASES CITED: Moore v. Newcastle City Council (1997) 77 IR 210 Unions New South Wales v. Carter Holt Harvey Wood Products Australia Pty Limited [2006] NSWIR Comm 2 HEARING DATES: 20/02/2006 DATE OF JUDGMENT: 02/20/2006 EXTEMPORE JUDGMENT DATE : 02/20/2006 APPLICANT applicant appeared in person LEGAL REPRESENTATIVES: RESPONDENT Tony Anderson Coles Myer Limited DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Monday, 20 February, 2006 Matter No IRC 254 of 2006 Teresa Elizabeth Giliberti and BiLo Pty Limited Application under S.84 of the Industrial Relations Act, 1996 DECISION [2006] NSWIRComm 1035 1 Miss T E Giliberti was employed by BiLo Pty Limited (Coles Myer Limited) in its supermarket in Berkeley. Miss Gilberti was manager in charge of the delicatessen section of the supermarket. Her services were terminated for alleged misconduct and she lodged an application under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act. In her Part 6 application she claimed that the termination of her services was unfair and she sought her reinstatement, re-employment or monetary compensation over it. The matter was allocated to me and I set it down for a preliminary hearing in the Commission's premises at 90 Crown Street, Wollongong on Monday, 20 February, 2006. In the proceedings Ms Giliberti was unrepresented and Mr Anderson represented BiLo. 2 The terms and conditions of Ms Gilberti's employment with BiLo were covered by the BiLo Pty Limited Retail Agreement, a Federal instrument. I attempted conciliation in the proceedings but without success, although I made some suggestions for the orderly resolution of this matter which the parties intend to explore subsequently. But, in the meantime, there remains much jurisdictional uncertainty concerning Miss Giliberti's Part 6 application which gives me some concern to leave her matter in limbo for very long before me. 3 Initially, the fact that an employee was covered by a Federal instrument would have meant that the Part 6 application would have fallen outside State jurisdiction [Cohen v. GIO Australia Limited (1996) 40 AILR Rep. 104]. The Full Bench of the Commission (Bauer, Hill and Hungerford JJ and Buckley C) in Moore v. Newcastle City Council (1997) 77 IR 210 had concluded (at p.230) that: "…the clear intention of the legislature in enacting the 1996 State Act was that expressed by the Minister so that there was no intention for S.83 to make applicable the State statutory remedies relating to unfair dismissal to a phantom or unspecified fourth class of employee, that is, one whose conditions of employment were regulated by a Federal award…" 4 The matter no longer remains so clear, however. 5 In its unreported decision of Monday, 20 January, 2006 in Unions New South Wales v. Carter Holt Harvey Wood Products Australia Pty Limited [Matter No.IRC 3513 of 2005] the Full Bench of the Commission (Walton J - Vice President, Sams DP, Boland J and Bishop C) considered a claim for reinstatement of a dismissed employee under S.130, ie in compulsory conference proceedings for an industrial dispute. Under S.137(1)(b) a member of the Commission hearing a S.130 industrial dispute is empowered to make a dispute order 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…" The Full Bench took the view that, in fact, the jurisdiction for reinstatement under S.137(1)(b) extended to cover employees regulated in the Federal industrial jurisdiction. 6 Indeed, the Full Bench indicated obiter dictum that Moore v. Newcastle City Council was wrongly decided, commenting (at p.30) that: "...at the outset, we should indicate with the greatest respect to the Full Bench in Moore , we do not agree that it was the legislature's intention to put in place a State scheme that had no application to employees covered by Federal awards. The Full Bench expressed itself in somewhat different language by saying that it seemed to the Full Bench that the legislature intended '...to put in place as State scheme applicable to employees within the State industrial relations aegis...'. But that begs the question of what is the '...State industrial relations aegis...'. A reading of the decision in Moore , however, makes it plain the Full Bench believed that it was not the intention that the New South Wales Act would have any application to employees whose employment was covered by a Federal award. As we have said, we respectfully disagree with that conclusion..." 7 It may therefore eventuate that Miss Giliberti's Part 6 application is perfectly competent. However, I am not anxious that her claim be tested on jurisdictional grounds when it clearly does fall under the Federal unfair dismissal regime as it presently stands. If it should emerge that Miss Giliberti's claim is beyond jurisdiction under Part 6, as BiLo asserts, it would mean that her efforts in that respect before me would be wasted. The uncertainty surrounding the Federal and State unfair dismissal jurisdiction at the present time suggests to me that she should protect her position by promptly lodging her claim in that area. She has agreed. 8 In those circumstances, I grant her leave to discontinue the matter before me in accordance with Rule 138. Miss Giliberti proposes to lodge an application in the Federal jurisdiction but, in the meantime, I urge the parties to give further consideration to resolving this matter in the manner I have suggested in the proceedings before me on Monday, 20 February, 2006. 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.