Industrial Court New South Wales Medium Neutral Citation: Mr247 Plumbing Pty Ltd v Daniel Buddee [2015] NSWIC 4 Hearing dates: 16 February 2015 Date of orders: 05 March 2015 Decision date: 05 March 2015 Before: Kite AJ Decision: The appeal is dismissed. Parties have liberty to apply within seven days from the date of this judgment should either party seek to apply in respect of costs. Catchwords: APPEAL – Appeal from Local Court pursuant to s 197(1)(a) of Industrial Relations Act 1996 – Appeal from decision and orders at first instance by Acting Chief Industrial Magistrate – Unpaid entitlements under Fair Work Act 2009 (Cth) – JURISDICTION – Section 197 of Industrial Relations Act 1996 will not support appeal of an order unless classified as an order by or under Industrial Relations Act 1996 – Chief Industrial Magistrate sits as a court within meaning of s 565 of Fair Work Act 2009 – Section 197 of Industrial Relations Act 1996 does not provide for appeal from Chief Industrial Magistrate's Court for purpose of s 565(1A) of Fair Work Act 2009 – Appeal dismissed Legislation Cited: Fair Work Act 2009 (Cth) Industrial Relations Act 1988 (Cth) (superseded) Industrial Relations Act 1991 (superseded) Industrial Relations Act 1996 Industrial Relations Amendment (Industrial Court) Act 2013 Industrial Relations (Commonwealth Powers) Act 2009 Interpretation Act 1987 Plumbing and Fire Sprinklers Award 2010 Workplace Relations Act 1996 (Cth) (superceded) Cases Cited: Construction, Forestry, Mining and Energy Union v Ulan Coal Mines Ltd [2009] FCA 326; (2009) 183 IR 74 Western Newspapers v Warren (1994) 1 IRCR 393; (1994) 56 IR 340 Category: Principal judgment Parties: Mr247 Plumbing Pty Ltd (Appellant) Daniel Buddee (Respondent) File Number(s): IRC 735 of 2014 Decision under appeal Court or tribunal: Local Court of NSW Jurisdiction: Chief Industrial Magistrate's Court Date of Decision: 22 September 2014 Before: Pierce CIM File Number(s): CIM 158766 of 2014 Judgment Introduction 1. This is an application by Mr247 Plumbing Pty Ltd ("appellant") for leave to appeal and, if leave is granted, to appeal from a decision of his Honour Chief Industrial Magistrate Pierce ("the CIM") given on 22 September 2014 in Matter CIM 158766 of 2014. The application is made pursuant to s 197(1) of the Industrial Relations Act 1996 (the IR Act). 2. His Honour had determined an application for recovery of money by Mr Daniel Buddee ("respondent"), an employee of a Mr Justin Quinn t/as Mr 24/7 Plumbing in respect of unpaid entitlements on termination of his employment. The application was dealt with as a small claim. 3. The matter was heard on 22 September 2014, with no appearance by the appellant. On 22 September 2014 his Honour made an order in favour of the respondent for the amount of $5,026.95 being for unpaid entitlements. Background 1. Mr Buddee had commenced employment with the employer entity from 27 July 2012. Mr Buddee alleged the employer was Mr Quinn t/as Mr 24/7 Plumbing. Mr Buddee had ended his employment with the employer on 6 December 2013. 2. On 27 May 2014, Mr Buddee made an application to the Chief Industrial Magistrate's Court for an order seeking to recover the sum of $5,012.50 in respect of unpaid annual leave and wages on termination of his employment. It should be noted the annexure to the application stated the amount sought to be recovered was for the sum of $5,026.50. In the application it was alleged the claim was made under s 90(2) of the Fair Work Act 2009 (Cth) (the FW Act). It was further alleged the amount was due under the Plumbing and Fire Sprinklers Award 2010 (an award of the Fair Work Commission). The respondent to that application was named as Justin Quinn t/as Mr 24/7 Plumbing. 3. The form of the application permits an applicant to elect to have the matter: "Dealt with as a small claims application under section 379/720." 1. Mr Buddee elected to have the matter dealt with in that way. I infer that "section 379/720" refers to s 379 of the IR Act and s 720 of the Workplace Relations Act 1996 (Cth) respectively (although s 720 provided the general right of recovery while the small claims procedure was actually prescribed in s 724 of that Act). The latter has been superseded by s 548 of the FW Act. 2. The matter appears to have been first listed before a Local Court Registrar on 25 June 2014, at which time it was adjourned for hearing on 22 September 2014, with directions given as to the filing of any relevant material. 3. On 22 September 2014, the matter was heard before the CIM. There was no appearance for the employer at the hearing and the matter was dealt with ex parte. The matter then proceeded to judgment. The order sought and made was as follows: Judgment for the Applicant The Respondent is ordered pursuant to the Fair Work Act 2009 to pay to the Applicant the amount of $5,026.95 being for unpaid entitlements. Time to pay: 28 days. The Current Application 1. The appellant in the present matter is Mr247 Plumbing Pty Ltd. Mr Quinn appeared on behalf of the appellant. For reasons which will become apparent, it is not necessary for me to determine who is in fact the employer (whether it be Mr Quinn or Mr 247 Plumbing Pty Ltd) for the purpose of these proceedings. However it is appropriate to note the disparity so that it may be addressed, if necessary, should the matter proceed further. 2. The appeal to this Court is purportedly brought pursuant to s 197 of the IR Act. The appellant has sought leave to appeal in its application. I note that amendments made pursuant to the Industrial Relations Amendment (Industrial Court) Act 2013 provide that an appeal from the Local Court under s 197 lies to the Commission in Court Session constituted by a single judicial member of the Court. No requirement for leave is specified in s 197. 3. Mr Quinn, on behalf of the appellant, said the lack of appearance before the CIM was because he had incorrectly diarised the hearing date. While he accepts responsibility for that error he says he has a good defence and it would be unjust not to allow his case to be heard. 4. Mr Buddee, who appeared in person, submitted that he simply wanted the matter finalised. The case, he said, had been going on for 18 months and he wanted it ended. 5. For reasons that will follow, it is not necessary to determine the question of whether leave is required. Jurisdiction 1. In the course of the present proceedings a legal question arose as to whether this appeal is a competent appeal brought from the CIM to the Industrial Court. This judgment deals with the question of whether this appeal is available at all, in light of the operation of the IR Act and the FW Act. The Legislative Framework Relevant provisions of the IR Act 1. It is convenient to set out first the relevant provisions of the IR Act. 2. Section 146(1) of the IR Act provides: 146 General functions of the Commission (1) The Commission has the following functions: (a) setting remuneration and other conditions of employment, (b) resolving industrial disputes, (c) hearing and determining other industrial matters, (d) inquiring into, and reporting on, any industrial or other matter referred to it by the Minister, (e) functions conferred on it by this or any other Act or law. 1. Section 153(1)(j) provides: 153 Jurisdiction of the Commission in Court Session (1) The following functions of the Commission are to be exercised only by the Commission in Court Session: … (j) proceedings on an appeal or case stated from an Industrial Magistrate or any other court, … 1. Section 197(1) relevantly provides: 197 Appeals from Local Court (1) An appeal lies to the Commission in Court Session against: (a) any order made under this Act by the Local Court for the payment of money or the dismissal by the Local Court of an application for such an order (including a dismissal on the ground that it does not have jurisdiction to deal with the application), or (b) any conviction or penalty imposed by the Local Court for an offence against this Act or the regulations, or (c) a civil penalty imposed under this Act by the Local Court for a contravention of an industrial instrument or the dismissal by the Local Court of proceedings for such a civil penalty, or (d) a civil penalty imposed under Division 7 of Part 13 of the Work Health and Safety Act 2011 by the Local Court for a contravention of a WHS civil penalty provision or the dismissal by the Local Court of proceedings for such a civil penalty. 1. Section 382 provides: 382 Jurisdiction of Chief and other Industrial Magistrates (1) The Chief Industrial Magistrate or any other Industrial Magistrate may exercise throughout the State the jurisdiction conferred by the following Acts on the Local Court: Industrial Relations Act 1996 Other industrial relations legislation Entertainment Industry Act 2013 Building and Construction Industry Long Service Payments Act 1986 Contract Cleaning Industry (Portable Long Service Leave Scheme) Act 2010 Essential Services Act 1988 Industrial Relations (Child Employment) Act 2006 Industrial Relations (Ethical Clothing Trades) Act 2001 Work Health and Safety Act 2011 Shop Trading Act 2008 Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998 Apprenticeship and Traineeship Act 2001 Any other Act that expressly confers jurisdiction on an Industrial Magistrate (2) The Chief Industrial Magistrate or other Industrial Magistrate constitutes the Local Court when exercising that jurisdiction. 1. It will be observed that paragraphs (a), (b) and (c) of s 197(1) refer to orders made under "this Act", i.e. the IR Act while paragraph (d) is confined to penalties imposed under the Work Health and Safety Act 2011. The terms of the Local Court order make plain that it was made "pursuant to the Fair Work Act 2009." Relevant provisions of the FW Act 1. It is sufficient initially to summarise the effect of some of the provisions of the FW Act. Section 30C(1)(a) extends the definition of a "national system employee" to include employees in a referring State employed by a "national system employer" within the meaning of s 30D(1)(a). New South Wales is a referring State pursuant to s 30L of the FW Act: see also s 5 of the Industrial Relations (Commonwealth Powers) Act 2009. Mr Buddee was a national system employee during the employment the subject of his claim. 2. The entitlement to annual leave arises under Div 6 of Pt 2-2 of the FW Act. Section 87 specifies the entitlement to annual leave of national system employees and s 90(2) provides for payment for untaken annual leave when the employment ends. 3. Section 61(3) of the FW Act makes clear that these entitlements are part of the National Employment Standards. Section 44(1) provides: 44 Contravening the National Employment Standards (1) An employer must not contravene a provision of the National Employment Standards. 1. Provision is made for enforcement of this obligation in s 539 of Pt 4–1 of the FW Act which provides: 539 Applications for orders in relation to contraventions of civil remedy provisions (1) A provision referred to in column 1 of an item in the table in subsection (2) is a civil remedy provision. (2) For each civil remedy provision, the persons referred to in column 2 of the item may, subject to sections 540 and 544 and Subdivision B, apply to the courts referred to in column 3 of the item for orders in relation to a contravention or proposed contravention of the provision, including the maximum penalty referred to in column 4 of the item. … Standing, jurisdiction and maximum penalties Item Column 1 Column 2 Column 3 Column 4 Civil remedy provision Persons Courts Maximum penalty Part 2–1–Core provisions (a) an employee (a) the Federal Court 1 44(1) (b) an employee organisation; (b) the Federal Circuit 60 penalty units (c) an inspector (c) an eligible State or Territory court … 1. Section 539 of the FW Act refers to the term "eligible State or Territory court". "eligible State or Territory court" is defined in s 12 as follows: eligible State or Territory court means one of the following courts: (a) District, County or Local Court; (b) a magistrates court; (c) the Industrial Relations Court of South Australia; (ca) the Industrial Court of New South Wales; (d) any other State or Territory court that is prescribed by the regulations. The term "magistrates court" is also defined in s 12 as meaning: (a) a court constituted by a police, stipendiary or special magistrate; or (b) a court constituted by an industrial magistrate. 1. Section 545(3) of the FW Act relevantly provides: 545 Orders that can be made by particular courts … Eligible State or Territory courts (3) An eligible State or Territory court may order an employer to pay an amount to, or on behalf of, an employee of the employer if the court is satisfied that: (a) the employer was required to pay the amount under this Act or a fair work instrument; and (b) the employer has contravened a civil remedy provision by failing to pay the amount. … 1. Section 565 provides: 565 Appeals from eligible State or Territory courts Appeals from original decisions of eligible State or Territory courts (1) An appeal lies to the Federal Court from a decision of an eligible State or Territory court exercising jurisdiction under this Act. (1A) No appeal lies from a decision of an eligible State or Territory court exercising jurisdiction under this Act, except: (a) if the court was exercising summary jurisdiction—an appeal, to that court or another eligible State or Territory court of the same State or Territory, as provided for by a law of that State or Territory; or (b) in any case—an appeal as provided for by subsection (1). Appeals from appellate decisions of eligible State or Territory courts (1B) An appeal lies to the Federal Court from a decision of an eligible State or Territory court made on appeal from a decision that: (a) was a decision of that court or another eligible State or Territory court of the same State or Territory; and (b) was made in the exercise of jurisdiction under this Act. (1C) No appeal lies from a decision to which subsection (1B) applies, except an appeal as provided for by that subsection. Leave to appeal not required (2) It is not necessary to obtain the leave of the Federal Court, or the court appealed from, in relation to an appeal under subsection (1) or (1B). Consideration 1. A review of these provisions permits the following observations: 1. Appeals under s 197 of the IR Act are restricted to orders enforcing provisions of or made under the nominated Acts. The nominated Acts do not include the FW Act. 2. Unless the order made by the CIM can be properly classified as an order made under the IR Act, s 197 of that Act, at least by itself, will not support an appeal from that order. 3. To be an order under the IR Act it would need to fall within the provisions of s 382 of the IR Act. 4. The only possibility that an order made under the FW Act could fall within s 382 is the expression found in s 382(1) which reads: "Any other Act expressly conferring jurisdiction on an Industrial Magistrate" 1. The FW Act confers jurisdiction on "eligible State or Territory courts" to make orders for the payment of money in enforcement of civil remedy provisions (including in relation to annual leave). 2. The Chief Industrial Magistrate is a magistrate and an industrial magistrate: s 381(1) of the IR Act. 3. Provided that the Chief Industrial Magistrate's Court is a court when exercising federal jurisdiction it will be a "magistrates court" and therefore an "eligible State court" for the purposes of the FW Act. 4. An appeal lies from an eligible State court exercising jurisdiction under the FW Act to the Federal Court and, if exercising summary jurisdiction, to another eligible State court of that State "provided for by a law of that State": s 565(1A) of the FW Act. 5. The Chief Industrial Magistrate's court was exercising summary jurisdiction. 6. The Industrial Court of New South Wales i.e. this court, is an eligible State court. 1. From these observations, the following issues emerge: 1. Is the Fair Work Act 2009 an Act which expressly confers jurisdiction on an industrial magistrate within the meaning of s 382(1) of the Industrial Relations Act 1996? 2. Is the Chief Industrial Magistrate's Court a court when exercising federal jurisdiction? 3. Does s 197 of the Industrial Relations Act 1996 or any other law of the State of New South Wales provide for an appeal from the Chief Industrial Magistrate's Court as an eligible State court to the Industrial Court as another eligible State Court for the purposes of s 565(1A) of the Fair Work Act 2009? The first and second issues 1. The first and second of these issues were considered under predecessor Acts to both the IR Act and the FW Act in Western Newspapers v Warren (1994) 1 IRCR 393; (1994) 56 IR 340. Western Newspapers concerned the purported enforcement of a federal award before the Chief Industrial Magistrate's Court. The first issue considered was the issue of jurisdiction to hear and determine proceedings brought under s 178 of the Industrial Relations Act 1988 (Cth), a counterpart to s 539 of the current FW Act. 2. In the judgement of the Industrial Relations Court of Australia, Moore J referred to the provisions of the Industrial Relations Act 1991 relating to the appointment (s 735) and jurisdiction (s 736) of Industrial Magistrates which were not in dissimilar terms to respectively ss 381 and 382 of the current IR Act. His Honour concluded at 346 that: …the essential function of the work performed by the industrial magistrate is judicial in character. Having regard to s 736 of the NSW Act, and the nature of the jurisdiction of the Chief Industrial Magistrate, his Worship sat as a court of competent jurisdiction as defined in s 177A [of the Industrial Relations Act 1988 (Cth)] when determining the matter the subject of this appeal. 1. Although there are changes to the terms of the respective Acts I am prepared to accept for present purposes that, for the reasons outlined by Moore J, the Chief Industrial Magistrate sits as a court when exercising the jurisdiction conferred by s 539 of the FW Act. 2. Moore J also considered an argument to the effect that the phrase "any other Act" in s 736(1) of the preceding Act, the equivalent to s 382(1) of the current Act, is confined to laws made by the Parliament of New South Wales. Reference was made to ss 65 and 66 of the Interpretation Act 1987. Those provisions were and are in the following terms: 65 References to Acts generally An Act passed by Parliament, or by any earlier legislature of New South Wales, may be referred to by the word "Act" alone. 66 Citation of particular Acts (1) An Act may be cited: (a) by its short title (or name), or (b) by reference to: (i) the year in which it was passed or, in the case of an Act passed before 1897, by reference to the regnal year in which it was passed, and (ii) its number. (2) A Commonwealth Act may be cited: (a) by its short title (or name), or (b) in such other manner as is sufficient in a Commonwealth Act, together with a reference to the Commonwealth. … 1. In accordance with these provisions it would seem the unqualified reference to the word "Act" in s 382(1) of the IR Act is confined to "Acts" of the Parliament of New South Wales. Although Moore J does not expressly accept that to be correct, it may be inferred that he considered it so. Were it otherwise he would not have needed to determine whether the Chief Industrial Magistrate's Court was indeed a court for the purposes of the federal legislation by reference to the context and the nature of the work done by the Chief Industrial Magistrate. 2. The correctness of the proposition is also consistent with his Honour's analysis of the source of the Commonwealth's power to confer jurisdiction on a State court. Moore J observed that the power to do so is found in s 77(iii) of the Commonwealth Constitution. It is inherent in his Honour's analysis that s 736(1) of the preceding Industrial Relations Act 1991 did not confer the requisite jurisdiction. Rather, it was the direct conferral of jurisdiction by the Industrial Relations Act 1988 (Cth) which enabled the Chief Industrial Magistrate to determine the federal claim: see also Construction, Forestry, Mining and Energy Union v Ulan Coal Mines Ltd [2009] FCA 326; (2009) 183 IR 74 at [1]-[2]. 3. I conclude that the phrase "any other Act" in s 382(1) is confined to Acts of the New South Wales legislature. 4. I would therefore answer the first question posed above in the negative. The source of the CIM's jurisdiction is found in s 545(3) of the FW Act. The second question I answer in the affirmative having regard to Western Newspapers. That then leaves the third issue. The third issue 1. It follows from my conclusion as to the meaning of the phrase "any other Act" as it appears in s 362(1) of the IR Act, that s 197, is not a law which provides for an appeal from one eligible State court to another eligible State court within the meaning of s 565(1A)(a) of the FW Act. For completeness I note that s 565(1A)(a) of the FW Act does not directly confer jurisdiction on this court in relation to appeals. Although this court is clearly an eligible State court within the meaning of the section, the language makes clear that any appeal must be facilitated or permitted by a State law. 2. In the course of his submission Mr Quinn adverted to s 101C of the IR Act. That section is found in Pt 7 of the Act and as is apparent from s 92, the Part is confined to certain public sector disciplinary appeals. It is not therefore a law of the character referred to in s 565(1A)(a) of the FW Act. No other Act or law was suggested and none suggests itself to me. 3. For completeness, I refer to s 153(1)(j) which deals with appeals and cases stated from an Industrial Magistrate. The paragraph is not an independent source of jurisdiction. It is apparent from the opening words of the section that the provision allocates to the Commission in Court Session certain functions of the Commission found elsewhere in the Act or in other legislation. 4. It follows that this Court lacks jurisdiction to deal with the appeal. 5. The appeal is dismissed. 6. I note that the parties have appeared in person throughout the proceedings. No question of costs would therefore appear to arise. However, I reserve liberty to apply within seven days from the date of this judgment should either party seek to apply in respect of costs. 7. For many years there was a right of appeal to this court from decisions of the Chief Industrial Magistrate in relation to annual leave and a wide range of other industrial matters. In many cases, such as the instant case, the parties are not represented by lawyers. The detailed analysis of legislative provisions of different legislatures is not something the parties or their representatives are necessarily trained to undertake, even more so in small claims matters, and it is not surprising that in the present case an appeal has been made to the wrong court. The federal legislation allows for matters to be heard in State courts and for appeals to courts of the same State. In the circumstances I will refer this matter to the President of the Commission with a request that he consider drawing the issue to the attention of the appropriate authorities for consideration of a legislative amendment to facilitate appeals of this kind to this court. ********** 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. Decision last updated: 05 March 2015