WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. PARTIES GREGORY RONALD RUSHTON & ANDREW CAIRNS, APPLICANTS v. THE WEST AUSTRALIAN TURF CLUB AND OTHERS, RESPONDENTS CORAM COMMISSIONER S WOOD DELIVERED FRIDAY, 15 SEPTEMBER 2000 FILE NOS APPLICATION 795 OF 2000, APPLICATION 809 OF 2000, APPLICATION 827 OF 2000 CITATION NO. 2000 WAIRC 01010 _______________________________________________________________________________ Result Commission has jurisdiction Representation Applicant Mr C J Edwards of Counsel Respondent Mr T Dixon of Counsel _______________________________________________________________________________ Reasons for Decision Preliminary Point. (Delivered extemporaneously and subsequently edited by the Commissioner) 1 This matter concerns a preliminary issue of jurisdiction raised by the respondents, The West Australian Turf Club & E Van Heemst in his capacity as Chairman of the Committee of the Western Australian Turf Club & The Western Australian Turf Club and the Chairman of the Committee of the Western Australian Turf Club (the applicants in this matter). The applicant says that the Commission cannot deal with the applications made by Gregory Ronald Rushton and Andrew Cairns (the respondents in this matter) for unfair dismissal pursuant to section 29(1)(b)(i) of the Industrial Relations Act, 1979 (the Act) as both were casual employees and pursuant to the Federal Workplace Relations Act 1996 and Regulations (the Federal Act), are excluded from the operation of the unfair dismissal procedures, there being a direct inconsistency between the Federal and State Acts. 2 Let me go first to the evidence in respect of whether Mr Cairns and Mr Rushton are casual employees or otherwise. Section 26A of the Act is explicit and it says— “In the exercise of its jurisdiction the Commission shall not receive in evidence or inform itself of any workplace agreement or any provision of a workplace agreement.” 3 The matters raised by Mr Edwards, in relation to the workplace agreements have not been tendered in evidence and as per section 26A I cannot inform myself about those. However, I have evidence from Mr Howells, the operations manager for the Western Australian Turf Club, that the basis of the employment contract is a State registered workplace agreement. I have evidence from Mr Cairns that it is not registered. In Mr Cairns’ application he says it is not registered. In Mr Rushton’s application he says that this is a Federal certified agreement or an Australian workplace agreement, and that is all I have before me today. So if you like, I have some confusion about that. 4 Irrespective of that, the point that the applicant in this hearing, the respondent in the substantive applications, raises is that whether it be a State award, agreement or industrial agreement it does not matter. There is a direct inconsistency there with the Federal Act. I will come to that. 5 In terms of whether the employees are casual or otherwise, I make no finding as of today on the basis that I have insufficient before me to make a finding. However, I make the following comments. It is trite to say that simply because you call something “casual” does not mean that it is casual. Exhibits A1 and A2 display regular employment and this regular employment is probably best described as “as needs employment” which, in the words of Mr Howells, has “a high seasonality in it”. 6 I have [Exhibit GR1B] which, as Mr Edwards would maintain was not full-time employment at the time in question, albeit the evidence of Mr Cairns and Mr Rushton is that they were to have full-time employment. It was not the basis of employment at that stage. In [Exhibit GR1B] it does say that they, namely Mr Rushton and Mr Cairns, were to have continued work throughout the year. 7 So it would seem that this is best characterised as “as needs employment” on a fairly systematic basis, not on the basis of a series of contracts which would typically be what one would characterise as casual employment. I note also in this respect that Mr Howells’ evidence is, if the roster was refused then it is unlikely either applicant would get further work. In other words, it adds weight to the notion that this is in fact one continuing contract. That being said, I make no finding on that particular point other than, on the evidence, the contract veers away from being casual employment and I make those comments, at this stage rather than any finding. 8 Now I come to the points raised in law as to whether there is an inconsistency. Mr Edwards does not say that there is indirect inconsistency that ground having been covered in City of Mandurah—v- Hull 80 WAIG 4319 (IAC). He relies instead on there being a direct inconsistency where there is, he says, a collision between the two pieces of legislation (one Federal and one State) and that collision, is expressed in the regulations, being in regulation 30B(1) of the Federal Act. He says that that collision is one where the remedies would provide differing results. Hence by virtue of section 109 of the Australian Constitution, where there is an inconsistency the Federal law prevails, so the applicant would say Mr Rushton’s and Mr Cairns’ applications must fail. That is effectively the submissions of the applicant in this case, the respondent in the substantive applications. 9 There is no express intent in the Federal Act in relation to unfair dismissals to cover the field. That has already been covered in City of Mandurah—v- Hull. The distinction that Mr Edwards makes is that the City of Mandurah—v- Hull case covered a permanent employee, this matter involved casual employees and the exclusions are explicit in regulation 30B(1). 10 Now to turn to that regulation I would say it is not unusual, and in fact it is commonplace, for there to be in fact dual systems. We have a dual system of industrial relations in this country and have had for some time. To then go to whether there is an inconsistency which, as per section 109 of the Constitution, may in fact negate the powers of the State Commission, would have to be expressed, in the Federal Act and that expression in 30B(1) I read as an expression which does not give the collision that Mr Edwards suggests it does as per the case in para 29 of his written submissions, referring to Cavuoto v. Colgate— Palmolive Pty Ltd (1995) 60 IR 409. 11 Mr Edwards at paragraph 29 of his written submissions states:— “ The inconsistency arises as a result of the opera- tion and interaction and the Federal Act and State Act not merely by their terms but on these given WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 81 W.A.I.G. 868 facts. This case may be likened to the example con- sidered by the Industrial Relations Court of South Australia in Cavuoto—v- Colgate—Palmolive Pty Ltd (1995) 60 IR 409 wherein the Court noted at page 421:— “The Steamship Kakariki sank in Port Phillip Bay. Section 13 of the Marine Act authorised the port officer to issue a warrant for the re- moval of the wreck and a procedure for recovering the costs of removal from the owner. Section 329 of the Navigation Act pro- vided that the relevant Commonwealth Minister may require the owner to remove the wreck and in default remove it and recover the costs of removal from the owner. The Court held no inconsistency. Latham CJ stated (at 626)— “… There is, however, no inconsistency in express terms between the two sec- tions, each of which simply purports to confer power upon an authority to do an act. The alleged inconsistency will exist only if the Commonwealth section is in- terpreted as meaning not only that the Minister can, but also that no one else can, remove the wreck. I see no reason for adopting such an interpretation of the section. The Commonwealth section sim- ply confers a power upon the Minister. It certainly does not say in express terms that no one else shall have a similar power.” Dixon J stated his conclusion as follows (at 631)— “… There is no reason for treating s 329 as intending to do more than confer a con- current or parallel power to enforce the removing of wrecks. No doubt there would be or might be an inconsistency if simultaneous attempts by Common- wealth and State authorities to remove the same wreck were possible. But that means, not that the Federal enactment is an exhaustive statement of what power to compel the removal of wrecks shall exist, but that it confers a power to re- move wrecks the exercise of which is intended to be exclusive. In other words, s 329 should be interpreted as meaning that the exertion of the power by the Min- ister shall impose upon the shipowner an obligation to the exclusion of similar ob- ligations which might otherwise arise from the exercise of State authority. It may thus be proper to understand s 329 as implying that, when the Minister un- dertakes the removal of a wreck, he may do so without interference from any other public authority. But, if this be so, no more follows than that, when, but not before, steps are taken under s 329 by the Commonwealth authority, the State authority becomes powerless. For under s 109 of the Commonwealth Constitution a State law is invalid only to the extent of the inconsistency.” 12 What it does do, in my view, is to exempt those employees who come under that provision of the regulation from pursuing their rights in the Federal jurisdiction. Casuals have long pursued their rights in this jurisdiction and the fact that someone may be able to access this jurisdiction and hence get a result of a declaration of unfair dismissal is not an unusual feat. 13 So in essence, the argument falls down on the fact that the expressed intent does not cause the collision that Mr Edwards suggests it does. The argument is certainly made by Mr Dixon that, and without going through all the argument, you need basically that expressed intent, and the Federal Act does not get you to this point. I agree with this submission, the Federal Act does not get one to that point. 14 So Mr Cairns and Mr Rushton in essence are not denied access to this jurisdiction, whether they be casual or not, and I have not made a finding on that point. If they were accessing the Federal jurisdiction then that would be another issue in which case the force of that regulation would apply. 15 I note an earlier comment that the application in the Federal jurisdiction by Mr Rushton, I would believe be it dismissed or not pursued, I am not sure, is not afoot, and I would take the view that if there were two applications in two jurisdictions then one would falter from being pursued; not from being lodged, but from being pursued. I think that bears again on the regulation and the effect of the regulation as raised by Mr Edwards. 16 I find there is no direct inconsistency by virtue of regulation 30B(1) of the Federal Act which would prohibit, courtesy of section 109 of the Australian Constitution, Mr Cairns and Mr Rushton pursuing their applications in this jurisdiction. 17 Let me then go to the last part of the hearing which is the application raised by Mr Dixon in respect of costs. If I were to rule on costs on the basis, as Mr Dixon says, that a matter had not been brought before, it would in fact be odd. There are many matters brought in this jurisdiction and other jurisdictions that have been dormant in the reading of the law for 30, 40 and more years. The fact that the point raised sits unchallenged for 6 years simply means that perhaps no one has in fact brought the application or in fact the parties have not had the opportunity to go through the precedents sufficiently. 18 I would only, in this instance, rule for costs if in fact I thought the application was brought in a frivolous or vexatious manner and clearly that is not the case today. So I would deny Mr Dixon’s application for costs. 2001 WAIRC 02110