WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES ROBERT THOMAS APPELLANT -v- DEPARTMENT OF RACING, GAMING AND LIQUOR RESPONDENT CORAM PUBLIC SERVICE ARBITRATOR COMMISSIONER S J KENNER DATE WEDNESDAY, 1 JUNE 2016 FILE NO PSA 2 OF 2015 CITATION NO. 2016 WAIRC 00333 Result Appeal dismissed Representation Applicant In person Respondent Mr L Sgro and with him Ms S Jovanou 594 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 96 W.A.I.G. Order HAVING heard the appellant on his own behalf and Mr L Sgro and with him Ms S Jovanou on behalf of the respondent the Arbitrator, pursuant to the powers conferred on him under the Industrial Relations Act, 1979 hereby orders – THAT the appeal be and is hereby dismissed. (Sgd.) S J KENNER, Commissioner, [L.S.] Public Service Arbitrator. OCCUPATIONAL SAFETY AND HEALTH ACT—Matters Dealt With— 2016 WAIRC 00334 REFERENCE OF DISPUTE THE OCCUPATIONAL SAFETY AND HEALTH TRIBUNAL CITATION : 2016 WAIRC 00334 CORAM : COMMISSIONER S J KENNER HEARD : WEDNESDAY, 20 APRIL 2016, TUESDAY, 31 MAY 2016 DELIVERED : TUESDAY, 31 MAY 2016 FILE NO. : OSHT 2 OF 2016 BETWEEN : ANDRIES LUCAS HOFFMAN Applicant AND PALADIN ENERGY LTD Respondent Catchwords : Industrial Relations Law (WA) - Referral to Occupational Safety and Health Tribunal - Whether Tribunal has jurisdiction - Whether legislation has extra-territorial effect - Principles applied - Application dismissed for want of jurisdiction Legislation : Industrial Relations Act 1979 (WA) Mines Safety and Inspection Act 1994 (WA) Occupational Safety and Health Act 1984 (WA) Result : Dismissed for want of jurisdiction Representation: Applicant : In person Respondent : Mr T French of counsel and with him Mr J Cockerell of counsel Case(s) referred to in reasons: Andries Lucas Hoffman v Paladin Energy Ltd (2015) 95 WAIG 1436 Andries Lucas Hoffman v Paladin Energy Ltd (2016) 96 WAIG 121 Ray Douglas Parker v Mark Anthony Tranfield (2001) 81 WAIG 2505 Case(s) also cited: Balfour v Travelstrength Ltd (1980) 60 WAIG 1015 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Mr Darrin Grant v BHP Coal Pty Ltd (2014) FWCFB 3027 Reasons for Decision Ex Temporé 1 The applicant Mr Hoffman was employed by the respondent Paladin Energy as its Engineering Manager at its Kayelekera Mine in Malawi. The respondent corporation, according to the earlier proceedings which I will come to shortly, has headquarters in Western Australia, but it seems to be common ground its mining operations for uranium are in overseas countries, including in Africa. Mr Hoffman was engaged on a contract ostensibly for a fixed term to run to January 2016 and a copy of that contract is an annexure to his written submissions which he has filed in these proceedings. That contract was brought to an end in February 2015 and as has been confirmed by the applicant before the Tribunal today, he seeks, effectively, the recovery of benefits to which he says he should have been entitled to up until January 2016, in addition to what he describes as a failure by the respondent to provide a medical examination. 96 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 595 2 This application has some background as I have mentioned. The applicant originally commenced proceedings for a denied contractual benefit before the Commission and by decision of 10 August 2015 that application was dismissed on jurisdictional grounds: Andries Lucas Hoffman v Paladin Energy Ltd (2015) 95 WAIG 1436; (2015) 95 WAIG 1439. A subsequent appeal to the Full Bench of the Commission by the applicant was dismissed on 10 February this year: Andries Lucas Hoffman v Paladin Energy Ltd (2016) 96 WAIG 121. 3 The applicant now brings the present matter before this Tribunal. As filed, the applicant’s claim, as I have indicated and as has been confirmed by Mr Hoffman, seeks effectively the recovery of his denied benefits in addition to the additional matter I have referred to. The Tribunal had listed the application for mention at an earlier stage at which it expressed doubts as to its jurisdiction to deal with the applicant’s claim. Accordingly, the matter was listed for show cause why it should not be dismissed today on jurisdictional grounds. 4 As I have already mentioned, the applicant filed a detailed written submission with annexures on 26 April 2016 which I have read. The applicant has also been given the opportunity today to make further oral submissions in support of his claim. The respondent was not required to file written submissions but has made brief oral submissions today, to the effect that the application should be dismissed, given the applicant’s failure to identify a particular claim falling within the jurisdiction of the Tribunal. 5 For the following reasons, which I can relatively shortly state, in my view, the Tribunal has no jurisdiction to deal with this matter and the applicant’s claim must be dismissed. 6 The applicant has made general submissions to the effect that the Tribunal’s jurisdiction extends to common law entitlements of an employee and in the exercise of its general powers, in relation to the objects and application of the Mines Safety and Inspection Act 1994 (WA) and the Occupational Safety and Health Act 1984 (WA), the Tribunal can deal with his claim in relation to pay and other benefits. The applicant has referred to the objects of this legislation and also the powers of the Governor to make various regulations. Reference is also made in the written submissions to various discrimination provisions of the OSH Act. Also, reference has been made to relevant provisions of the Commonwealth constitution in connection with the contention that the respondent is a constitutional corporation. However, I do not apprehend that matter to be in dispute for the purposes of these proceedings. 7 Turning to the legislation specifically, that is the MSI Act and the OSH Act. First and foremost, the observation the Tribunal makes is whether that legislation can be regarded as having any extra-territorial effect, given the general presumption that legislation is not to operate extraterritorially. In that respect I refer to the learned authors Pearce DC and Geddes RS, Statutory Interpretation in Australia, (6th ed, 2006) at pars 5.5 to 5.7 inclusive. I also refer to a decision of the Industrial Appeal Court in Ray Douglas Parker v Mark Anthony Tranfield (2001) 81 WAIG 2505. Simply put, just because the applicant’s contract of employment may refer to its terms being governed by the laws of Western Australia, is not the answer to the issue I have just posed. 8 On the face of it, both the MSI Act and the OSH Act apply to mining operations and workplaces in the State of Western Australia, unless the presumption against extra-territorial operation is to be rebutted. There is nothing in the MSI Act to suggest that it could apply, for example, to the applicant's former employment in Malawi. Therefore, I have some difficulty in seeing how the Tribunal can have jurisdiction in relation to occupational safety and health matters in the applicant’s former workplace in Africa. 9 However, it is not necessary for the Tribunal to finally decide that question because even if the jurisdiction did extend to the applicant’s former workplace, I am simply not satisfied that the applicant’s claim or any specific aspect of it falls within the Tribunal’s jurisdiction. It is important to recognise that the Tribunal’s jurisdiction under both the MSI Act and the OSH Act is specific and is not general. That is, the Tribunal only has jurisdiction and power in relation to those specific matters set out in the legislation that the Parliament has determined that the Tribunal may deal with. The Tribunal does not have general jurisdiction to deal with everything contained in the legislation. The Tribunal may only deal with matters referred to it under s 51G(1) of the OSH Act and s 102(1) of the MSI Act. 10 Specifically in relation to the MSI Act, s 102(1) sets out the matters which can be brought before the Tribunal. In relation to s 31BA, that deals with matters such as reviews of decisions of the State Mining Engineer in relation to improvement and prohibition notices. In relation to s 55(6), that deals with matters in relation to consultation on safety and health issues for safety and health representatives. In relation to s 55A(4), that deals with an election scheme for safety and health representatives. In relation to s 56(11), that deals with other election matters for safety and health representatives. Section 59(1) of the legislation deals with disqualification of health and safety representatives. Section 62(1) deals with entitlements for safety and health representatives in relation to their performance and functions as such, or in relation to occupational health and safety training. Furthermore, ss 67F(1), (2) and (3) deal with disputes as to occupational safety and health committees. 11 Under s 74(2) disputes as to entitlements of employees, where they refuse to work in circumstances where their health and safety may be at imminent risk, is prescribed. Section 102AA deals with reviews of decisions by the State Mining Engineer made under the Regulations, as reviewable decisions. Section 68C deals with discrimination against safety and health representatives and, I add, as employee representatives, because they are representatives performing safety and health representative functions. Section 52 deals with appeals in relation to certificates of competency and s 86 deals with appeals in relation to mine survey matters. The relevant provisions of the OSH Act, in section 51G, set out a similar jurisdictional scheme in relation to these specific matters that may be referred to the Tribunal, which should be taken into account for the purposes of the determination of this matter. 12 What is very clear from a summary of the legislation is that the Tribunal’s jurisdiction is specific. The Tribunal does not have a general and all-embracing jurisdiction under either statutory scheme. 596 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 96 W.A.I.G. 13 So therefore, in my view, having considered the terms of the legislation and having regard to the specific matters that are before the Tribunal as confirmed by Mr Hoffman the applicant, in the proceedings today, it is difficult to see any basis on which he has established that his claim falls within any head of power under either statutory scheme in relation to the Tribunal’s jurisdiction. In the absence of the applicant establishing that his claims fall within the specific matters that may be referred to the Tribunal, the Tribunal has no jurisdiction to deal with them. 14 The application must be dismissed for want of jurisdiction. There will be an order in those terms. 2016 WAIRC 00335 REFERENCE OF DISPUTE THE OCCUPATIONAL SAFETY AND HEALTH TRIBUNAL PARTIES ANDRIES LUCAS HOFFMAN APPLICANT -v- PALADIN ENERGY LTD RESPONDENT CORAM COMMISSIONER S J KENNER DATE TUESDAY, 31 MAY 2016 FILE NO/S OSHT 2 OF 2016 CITATION NO. 2016 WAIRC 00335 Result Dismissed for want of jurisdiction Representation Applicant In person Respondent Mr T French of counsel and with him Mr J Cockerell of counsel Order HAVING heard the applicant on his own behalf and Mr T French of counsel and with him Mr J Cockerell of counsel on behalf of the respondent the Tribunal, pursuant to the powers conferred on it under the Occupational Safety and Health Act, 1984 hereby orders – THAT the application be and is hereby dismissed for want of jurisdiction. (Sgd.) S J KENNER, Commissioner, [L.S.] The Occupational Safety and Health Tribunal. ROAD FREIGHT TRANSPORT INDUSTRY TRIBUNAL—Matters Dealt With— 2015 WAIRC 01083 DISPUTE RE ALLEGED TERMINATION OF CONTRACT