WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT. Heard: 1 October 1987 and 2 November 1987. Delivered: 14 December 1987. Coram: Kennedy J. (Deputy President), Olney and Rowland JJ. Appeals No. 7 of 1987. Between Robe River Iron Associates, Appellant and the Association of Draughting, Supervisory and Technical Employees of Western Australia, Respondent. Mr E.M. Heenan QC and Mr H.J. Dixon (instructed by Messrs Parker and Parker) appeared for the appellant. Mr S.R. Edwards (instructed by Messrs Ilbery, Barblett and O'Dea) appeared for the respondent. Cases referred to in judgment: Addis v. Gramophone Co Ltd (1909) AC 488. Amalgamated Metal Workers and Shipwrights Union of Western Australia v. Bell Bros Pty Ltd (1983) 63 WAIG 1547. Association of Draughting, Supervisory and Technical Employees Western Australian Branch v. Robe River Iron Associates (1987) 67 WAIG 740. Bridgeway Hotel Case (1980) 47 SAIR 345. Cliffs Western Australian Mining Co Pty Ltd v. Associa- tion of Architects, Engineers, Surveyors and Draughtsmen of Australia, Union of Workers Western Australian Division (1978) 58 WAIG 486. Cliffs Western Australian Mining Co Pty Ltd v. Associa- tion of Architects, Engineers, Surveyors and Draughtsmen of Australia, Union of Workers Western Australian Division (1978) 58 WAIG 1067. Federated Miscellaneous Workers' Union of Australia (South Australian Branch) v. Sola Optical Australia Pty Ltd (1982) 1 1R 248. Kwinana Construction Group Pty Ltd v. The Electrical Trades Union of Workers (Western Australian Branch) (1954) 34 WAIG 51. Metropolitan (Perth) Passenger Transport Trust v. Gersdorf (1981) 61 WAIG 611. Miles v. Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385. O'Dwyer v. Karratha Recreational Council (Inc) (1981) 61 WAIG 850. Parsons v. Martin (1984) 58 ALR 395. Potter v.Minahan (1908) 7 CLR 277. Princess Margaret Hospital for Children v. The Hospital Salaried Officers Association of Western Australia (Union of Workers) (1975) 55 WAIG 543. The Queen v. Hamilton Knight: exparte The Common- wealth Steamship Owners Association (1952) 86 CLR 283. The Queen v. Portus; ex parte City of Perth (1973) 129 CLR 312. Sargood Bros v. Commonwealth (1910) 11 CLR 258. Slonim v. Fellows (1984) 154 CLR 505. Tak Lau Kwa v. Smartt (1984) 64 WAIG 858. Totalisator Agency Board v. Federated Clerks' Union of Australia Industrial Union of Workers, WA Branch (1980) 60 WAIG 624. Cases also cited: Atlas Tiles Ltd v. Briers (1978) 52 ALJR 707. Attorney General for Australia v. The Queen (1957) AC 288. Australian Broadcasting Commission v. Industrial Court of South Australia (1978) 138 CLR 399. Australian Consolidated Press Limited v. Federation Miscellaneous Union (1973) NSW AR 181. Bank of New South Wales v. United Bank Officers Association (1921) 21 SR NSW 593. British Transport Commission v. Gourley (1956) AC 185. Cullen v. Trappell (1980) 146 CLR 1. Federated Clerks Union of Australia v. The Victorian Employers' Federation (1984) 154 CLR 472. Giles v. Morris (1972) 1 AER 960. J.C. Williamson Ltd v. Lukey and Mulholland (1931) 45 CLR 282. Miscellaneous Workers Union v. Ranger Uranium Mines Pty Ltd 3 ALLR par 61-148. Monsanto Chemicals (Aust) Ltd v. Amalgamated Engineering Union (1958) 90 CAR 27. R v. Cram; exporteNSW Colliery Proprietors' Associa- tion Ltd; High Court; unreported; del 16 July 1987. R v. Flight Crew Officers Industrial Tribunal; ex parte Australian Federated of Air Pilots (1971) 127 CLR 11. R v. Gough; ex parte Meat and Allied Trades Federation of Australia (1969) 122 CLR 237. R v. Marshall; ex parte Plumrose (Aust) Ltd (1983) 1 VR 477. R v. The Industrial Commission of South Australia; ex parte Petersville Ltd (1978) 45 SAIR 1073. Waterside Workers Federation of Australia v. Alexander (1918) 25 CLR 343. Wiluna Gold Mines Ltd v. AMU (1938) 18 WAIG 66. KENNEDY J.: On 5 September 1986, the respondent successfully sought a conference pursuant to section 44 of the Industrial Relations Act 1979, upon the ground that it disputed the dismissal of three members of the salaried staff of the appellant, including Mr A. Pepler. At the conference, the Union claimed that the dismissal by the appellant of Mr Pepler on the ground of his alleged gross misconduct was unfair, and it sought "an Order of the Commission to re-instate Mr Pepler without loss of entitlements and with continuity of employment, together with such compensation as is deemed to be appropriate". The dispute could not be settled by agree- ment between the parties, and the Commissioner thereafter proceeded to determine the matter by arbitration. In his reserved decision, delivered on 27 November 1986, the Commissioner found that Mr Pepler's summary dismissal was not justified, as he did not believe that Mr Pepler's actions "were such as to be characterised as gross misconduct which struck at the heart of his contract of employment". Without pro- ceeding to consider as a separate question the industrial fairness of the dismissal, he held that Mr Pepler had been unfairly dismissed. He went on to observe, however, that he was not convinced that reinstatement was the proper course. He said, "Having had the opportunity to listen to Mr Peppier {sic) and members of management in Rail Operations I consider that it would be difficult to re- establish the trust fundamental to the working relation- ship necessary for both parties", although, he added, "(t)he prospect of the finding of an irretrievable breakdown in the relationship between Mr Pepler and the respondent company was not addressed at the hearing". He did not thereafter invite the parties to address upon that issue, but merely requested them instead to address "the issue of compensation in the light of my determination of an irretrievable breakdown in the working relationship". The matter was brought on for hearing on the question of compensation and each party made submissions. It appeared from the evidence that Mr Pepler was 49 years of age at the time of his dismissal on 4 September 1986. He had by then completed four years and eight months' service with the appellant in what was his third period of employment with it. In 1975 and in 1979 he had resigned from the appellant's service, but on each occasion he had subsequently been re-employed by it. For the 12 month period to the end of August 1986, his gross earnings from the appellant totalled $56 652.48. On termination of his employment, he received payment of amounts then due to him totalling $3 992.09 (from which tax of $1 267.94 was deducted) together with an amount of $247.80, representing an airfare. He also received an amount of $8 057.21 ($8 510.36 gross) as his superannuation entitlement. On 18 February 1987, the Commissioner ordered the appellant to pay to Mr Pepler the sum of $48 000 within 14 days of the date thereof. That amount was fixed "(h)aving regard for the losses suffered by Mr Pepler, as a result of the unfair dismissal". No allocation of the award under various headings was attempted. It may be observed that, at common law, damages for wrongful dismissal cannot include compensation for the manner of the dismissal, for a person's injured feelings or for the loss he may sustain from the fact that the dismissal makes it more difficult for him to obtain further employment — Addis v. Gramophone Co Ltd (1909) AC 488. In addition to a possible slight adjust- ment of the superannuation entitlement to allow for the four weeks' notice to which Mr Pepler was, upon the Commissioner's finding, entitled, the only payment to which Mr Pepler would have been entitled at common law was the sum of approximately $2 360, less income tax, representing four weeks' pay in lieu of notice. The contrast with the sum ordered to be paid by the Commis- sion is striking, although it is necessary always to bear in mind that the purpose of the Industrial Relations Act is to give the Commission wide powers to affect the WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 13 common law rights of employers in cases where an industrial matter exists — see per Gibbs C. J. in Slonim v. Fellows (1984) 154 CLR 505 at p. 510. An appeal to the Full Bench, challenging, inter alia, the jurisdiction of the Commission to order the appellant to pay compensation to Mr Pepler, was dismissed, and the appellant now appeals to this Court. For the first time in this Court, the appeal raises this question for direct determination. This question cannot, in my view, be considered in isolation from the power of the Commission to direct the reinstatement (or re-employment) of dismissed employees. A number of cases over a period of more than 30 years, under both the present Act, and under its predecessor, the Industrial Arbitration Act 1912, have confirmed the jurisdiction of the Commission in this regard. The first of these cases was a decision of the former Court of Arbitration under the Industrial Arbitration Act 1912, Kwinana Construction Group Pty Ltd v. The Electrical Trades Union of Workers (Western Australian Branch) (1954) 34 WAIG 51 (the Kwinana case). In that case, Jackson J., with whom Mr T.G. Davies agreed, upheld the power of a Commissioner to order the rein- statement of a dismissed employee. He said, at p. 51: The Industrial Arbitration Act defines "Industrial matters" as including "all matters relating to . . . the dismissal of or refusal to employ any person or class of persons" in any industry. I draw attention particularly to the words' 'all matters relating to". An industrial dispute is one in relation to industrial matters. The Court's jurisdiction under the subsection of section 61 which is relevant in this case is "to settle and determine ... all industrial matters and disputes" as to which a compulsory conference has been held and which, on no agree- ment being reached, have been referred into Court. In my view, a claim by a union that a dismissed employee should be reinstated is a matter relating to the dismissal, and it follows that in determining a dispute consequent on a dismissal the Court has power to make an order for reinstatement and such other incidental matters, including payment of wages from the time of dismissal as the Court considers just and equitable. To hold otherwise would be to imply some restriction on the Court's powers of settling and determining a dispute for which there is no warrant in the Act. In 1963, after the decision in the Kwinana case, the former Act was amended to provide, by section 61 (2): The Commission in the exercise of the jurisdiction conferred on it by this Act shall not by any order or award — (d) require any employer to employ or continue to employ or to re-employ any worker unless, in the opinion of the Commission — (i) the employer is taking part in a lock-out; or (ii) the employer has dismissed or failed or refused to employ or to continue to employ or to re-employ a worker because the worker is an officer or member of a union or association or of a society that has applied to be registered as a union or association or because the worker has claimed any benefit to which he is entitled under any award or industrial agreement. That provision, of course, proceeded upon the basis that the power to order re-employment existed. In 1973, section 61 (2) was repealed. Then, in Princess Margaret Hospital for Children v. The Hospital Salaried Officers Association of Western Australia (Union of Workers) (1975) 55 WAIG 543, a decision of the former Industrial Appeal Court also under the 1912 Act, Burt C.J., with whose reasons the other members of the Court agreed, said at p. 545: I agree entirely with the decision and with the reasons in the Kwinana case and in substance with the reasons which led the Commission in Court Session to its conclusion in the present case. In a case such as the present one where, as I think is the case, there has been a refusal to employ a person, that refusal is an industrial matter clearly within paragraph (c) of the definition. If there is a dispute about that refusal between an industrial union of workers of which the worker concerned is or is eligible to be a member and the employer concerned, then three is an industrial dispute and then with reference to its determination, if an order directing the employer to employ or in the case of dismissal (the Kwinana case) an order for reinstatement is "fair and right in relation to that matter having regard to the interests of the persons immediately concerned, and of the community as a whole" then it too, that is to say, the employment of the worker or the reinstatement of the worker as the case might be, becomes an industrial matter. See paragraph (h) of the definition of industrial matters. And if the making of an order to employ or to reinstate as the case might be, be thought of as the exercise of a power within the jurisdiction, then it is I think within the power to "determine (the) industrial matter" — section 61 (1) (e). Furthermore, the same conclusion can I think be sustained on a broader ground, it being that the dismissal or refusal to employ a worker is within the general words of the definition of "industrial matters" as being a matter "affecting or relating to the work, privileges, rights and duties of employers or workers in any industry". If this is so, and, by analogy, section 61 (2) (c) would suggest that the legisluate considered it to be so, then again and for the same reasons, if the required relationship to that matter appears, then the employment or the rein- statement of the worker becomes an industrial matter and if it be the subject of a dispute between an industrial union of workers and an employer it is then an industrial dispute, and an order to reinstate or to employ as the case may be is then seen to be an order within power, being an order made "deter- mining" the industrial matter in dispute. His Honour then went on to consider the relief to be granted in such a case. He said, at p. 545: In my opinion the Commission in Court Session has no jurisdiction to "reinstate" the contract of employment. I am not sure what an order in those terms means, and what its effect would be, and in particular what effect it would have upon the worker who was not of course a party to the proceedings. The order should in my opinion be an order directed to the employer, in this case to the appellant, requiring it upon the worker presenting himself for work at a particular place and time, to engage and so to employ the worker on the agreed terms and in the agreed vocation. The form of order made in the Kwinana case by the Commissioner — 34 WAIG 60 — as amended by the Court of Arbitra- tion — 34 WAIG 52 — is I think the correct form of order, modified of course to meet the case of refusal to employ, which is the present case, as distinct from dismissal and reinstatement, as was the Kwinana case. I assume that the second limb of the order is designed to create in the worker a right to wages as from 6 September. If this is so, then again I would have thought it better to make an order for a money sum as was done in the Kwinana case. The amount ordered to be paid may well be less than the total amount which the worker wculd have earned had he been employed pursuant to the agreement. It may be 14 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 68 W.A.I.G. that in the meantime he has found employment elsewhere — cf. the measure of damages had the worker sued for breach of the contract. See also Cliffs Western Australian Mining Co Pty Ltd v. Association of Architects, Engineers, Surveyors and Draughtsmen of Australia, Union of Workers, Western Australian Division (1978) 58 WA1G 486. The paragraphs in the definition of "Industrial matters" which were referred to by Hurt J. included in that term, "(c) The employment of children or young persons, or of any person or class of persons, in any industry, or the dismissal of or refusal to employe any person or class of persons therein" and "(h) What is fair and right in relation to any industrial matter, having regard to the interests of the persons immediately concerned, and of the community as a whole". Para- graph (c) appears in the same position in the relevant definition of "industrial matter" in the present Act. Paragraph (h) no longer appears. By section 7 (1) of the present Act, industrial matter, for the present purposes, is defined as: any matter affecting or relating to the work, privileges, rights or duties of employers or employees in any industry or of any employer or employee therein and, without limiting the generality of that meaning, includes any matter relating to — (a) ... (b) the hours of employment, leave of absence, sex, age, qualification, or status of employees and the mode, terms and conditions of employment including conditions which are to take effect after the termination of employment; (c) the employment of children or young persons, or of any prson or class of persons, in any industry, or the dismissal of or refusal to employ any person or class of persons therein; (d) ... Section 23 (1) of the Act provides: Subject to this Act, the Commission has cognisance of and authority to inquire into and deal with any industrial matter except any matter provided for in paragraph (a): (a) the suspension from duty in, discipline in, dismissal from, termination of, or rein- statement in, employment of any person as — (i) an officer or employee in either House of Parliament (I) under the separate control of the President or Speaker or under their joint control; (II) employed by a Committee appointed pursuant to the Joint Standing Rules and Orders of the Legislative Council and the Legislative Assembly; or (III) employed by the Crown; or (ii) an officer or employee on the Governor's Establishment. The exception, in my view, clearly assumes that, without it, reinstatement of the officers or employees concerned would constitute an industrial matter. That this is so is also assumed in subsection (3) (d) of section 23, which requires the Commission, in the exercise of the jurisdiction conferred on it by Part II of the Act, not to regulate, inter alia, the reinstatement in employment of any employee or any one of a class of employees if there is provision, however expressed, by or under any other Act for or in relation to a matter of that kind and there is provision, however expressed, by or under that other Act for an appeal in a matter of that kind. By section 26 (1) (a), in the exercise of its jurisdiction under the Act, the Commission is required to "act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal form". It should be obvious that section 26 (1) (a) does not, in itself, confer jurisdiction upon the Commission. It deals simply with the manner in which the Commis- sion's jurisdiction, otherwise conferred, is to be exercised. Section 29 provides as follows: An industrial matter may be referred to the Commission — (a) in any case, by — (i) an employer with a sufficient interest in the industrial matter; (ii) an organisation in which persons to whom the industrial matter relates are eligible to be enrolled as members or an association that represents such an organisation; or (iii) the Minister; and (b) in the case of a claim by an employee — (i) that he has been unfairly dismissed from his employment; or (ii) that he has not been allowed by his employer a benefit, not being a benefit under an award or order, to which he is entitled under his contract of service, by the employee. Once again it must follow, in my opinion, that a claim by an employee that he has been unfairly dismissed from his employment constitutes an industrial matter. By section 961, inserted in the Act in 1982, when section 100 was repealed: When a person has been convicted of an offence under section 96B or 96F, the Industrial Magistrate before whom the proceedings were brought shall, after imposing such penalty for that offence as he considers just, transmit the case to the Commission, and the Commission may, after affording the person so convicted and the employee or person against whom that offence was committed (in this section called the complainant) an opportunity to be heard — (a) if the person so convicted is an employer, order the employer — (i) to reinstate the complainant in his employment; (ii) to pay as to the complainant such sum of money as the Commission considers adequate as compensa- tion for loss of employment or the loss of earnings; or (iii) both to reinstate the complainant in his employment and to pay him the sum of money referred to in sub- paragraph (ii) of this paragraph, as is appropriate in the circumstances and as the Commission considers just; or (b) if the person, so convicted is a person other than an employer, order that person to pay the complainant such sum of money as the Commission considers adequate as com- pensation for loss of employment or loss of earnings, but the complainant is not entitled to compensation both under this section and otherwise for the same loss of employment or loss of earnings. Sections 96B and 96F are concerned with conduct by employers prejudicing employees by reason of their membership or non-membership of employee organisa- tions and with discriminatory action against persons by reason of non-membership of employee organisations. Section 961, as it does not relate to industrial matters, as 68 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 15 such, but deals with specific offences, and provides specific remedies, does not appear to me to assist with the solution of the present problem. With strong decisions of the Court of Arbitration and of the Industrial Appeal Court prior to the introduction of the new Act in 1979, the repetition in the new Act of the major part of the previous definition of industrial matter, and the references in the new Act to "reinstate- ment", to which I have referred, the conclusion appears to me to be inescapable that the power of the Commission to order reinstatement (or re-employment) of a dismissed employee has been continued by the new Act, there being nothing to be found in it which would deny that power. Subsequent decisions of this Court confirm that view. In Metropolitan (Perth) Passenger Transport Trust v. Gersdorf (1981) 61 WAIG 611, this Court had to decide whether the Commission had jurisdiction pursuant to an application under the predecessor to section 29 (a) of the present Act to order the appellant to reinstate or re- employ a worker who had been dismissed in his employ- ment under the applicable award, to make a declaration that the employee was unfairly dismissed and to make an order in the nature of damages in favour of the employee. Brinsden J., at p. 613, observed that, in a series of decisions, the right in the Commission to order re- employment, as distinct from reinstatement was clearly recognised, as was the right in the Commission to make a supplementary order, not only ordering re-employment, but also ordering that the employer compensate the employee for lost wages between the date of cessation of his employment and his re-employment. He added, at p. 614: The present Act is silent as to what orders the Commission may make if it finds that an employee had been unfairly dismissed but it seems that it may make an order for an amount to be paid to the employee representing the wages lost during the period of unemployment less whatever the employee may have earned from employment with another employer during the same period, by reason of the definition of "industrial matter" in the Act. Such an order may be likened to an order in the nature of damages. It was also accepted in Miles v. Federated Miscellaneous Workers' Union of Australia, Hospital, Service and MisceOaneous, WA Branch (1985) 65 WAIG 385 (the Underbill Nursing Home Case) that the power to order re-employment existed under the present Act. At one time, it might have been argued that no industrial matter arose in the case of an unfair dismissal, because, consequent upon the employee's dismissal, the critical relationship of employer and employee, which was claimed to be required to confer jurisdiction on the Commission, was necessarily lacking. That argument has now been put to rest by Slonim v. Fellows (1984) 154 CLR 505. The case arose under the Industrial Relations Act 1979 (Viet). Section 3 (1) of that Act defines "industrial dispute" extremely widely as "a dispute arising between an employer and one or more of his employees, or between an association of employees and one or more employers or associations of employers, or between two or more associations of employers or two or more associations of employees, and includes a threatened or impending or probable dispute". The services of the appellant, who was a teacher, were lawfully terminated by her employer. She alleged that the termination was harsh, unreasonable and unjust and sought from the Teachers (Day Training Centres) Conciliation and Arbitration Board an order for her reinstatement. The Victorian Act contains no specific provision for reinstatement. At pp. 508-509, Gibbs C.J., referring back to the reasons he gave in Federated Clerks' Union of Australia v. Victorian Employers' Federation (1984) 154 CLR 472, said®: This definition does not encompass every dispute between the parties mentioned in the definition; the object and scope of the Act indicate that the definition refers only to a dispute which would be regarded as an industrial dispute in the ordinary meaning of those words, except to the extent that the meaning is expanded by the description of the parties and by the reference to a threatened or impending or probable dispute. An industrial dispute in the ordinary sense of the word is, in my opinion, for the reasons which I gave in Federated Clerks' Union of Australia v. Victorian Employers' Federation, a dispute which arises out of or, in the course of, the relationship between employer and employee as such. It will not be enough if the connection between the subject of the dispute and the relationship of employer and employee is remote or indirect. In the cases which have been decided under the Conciliation and Arbitration Act 1904 (Common- wealth), as amended, a distinction has been drawn between a claim in respect of the reinstatement of a former employee whose employment has been terminated, and a claim that before an employee is dismissed notice should be given or a particular procedure should be followed. It has been held that a claim of the latter kind does, but that one of the former kind does not, give rise to an industrial matter, question or dispute: see Reg v. Gough; Ex parte Meat and Allied Trades Federation of Australia (1969) 122 CLR 237; Reg v. Flight Crew Officers' Industrial Tribunal; Ex parte Australian Federation of Air Pilots (1971) 127 CLR 11 and Reg v. Portus; Ex parte City of Perth (1973) 129 CLR 312. These cases largely depend on considerations which are relevant only to the effect of the Commonwealth Constitution . . . At pp. 510-511, he categorised the dispute in the case before him as concerning whether the appellant was fairly dismissed and, if not, whether she should be reinstated. He said: In my opinion such a dispute (provided it is sufficiently proximate in point of time) arises out of the relationship between employer and employee as such. I do not mean to say that a claim that an employer should employ a particular person, not being a recently dismissed employee, would be an industrial dispute, but that the fact that a dispute has taken effect does not necessarily mean that a dispute as to the fairness of the dismissal cannot be an industrial dispute. It is true that the power to order the reinstatement of a dismissed employee can be regarded as an interference with an employer's ordinary rights, but it is apparent that the purpose of the Act is to give the Boards and the Commission established under the Act wide powers to affect the common law rights of employers in cases where an industrial dispute has arisen or an industrial matter exists. I can see no reason in principle why the con- ception of industrial dispute in its ordinary sense should be so narrow as to exclude a dispute as to the fairness of the dismissal of an employee. The legis- lature of Victoria is not subject to the constitutional constraints that might lead to a different conclusion in cases arising under Commonwealth legislation, and the Act itself is widely drawn, and contains no indication that a more limited construction was intended. In my opinion an industrial dispute in the ordinary sense had arisen in the present case. To come within the definition in section 3 (1) of the Act, the dispute must, however, be (amongst other 16 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 68 W.A.I.G. things) between an employer and one or more of his employees or between an association of employees and one or more employers. In the present case, the applicant was no longer an employee, since her employment had been terminated. The dispute was, however, between an association of employees and an employer, and for the reasons that I have given I consider that it arose directly out of the relationship which had existed between a member of the association, as employee, and the employer, as employer. If it matters it was also a dispute of a kind which could cause industrial disharmony between the association and the employer. It seems to me that it was an industrial dispute within the meaning of the Act. Under section 44 of the Act, it was the duty of the Board to attempt to settle the dispute by conciliation, and if the Board was unable to do so, it became the duty of the respondent, as chairman of the Board, to deter- mine the matter by arbitration. The duty to deter- mine the matter necessarily carried with it the power to make the determination effective; the Board therefore had power to order the reinstatement of the applicant if it decided that such a course was appropriate. It follows that the Board wrongly declined jurisdiction. It was not suggested here that the award of compen- sation provided an alternative remedy. Wilson J., with whom Mason and Deane JJ. agreed, said of the definition in section 3 of an industrial dispute, at p. 513: In terms, the definition is extraordinarily wide. If it were read literally, it would mean any dispute about any subject at all that arises between the parties described. However, the definition must be read down by reference to the Act as a whole and so read must be confined to a dispute of an industrial nature. Having said that, however, it is unnecessary and unwise to attempt any more precise definition save what may be necessary for the determination of the case in hand. No doubt the resolution of any particular case requiring a consideration of the scope of the term "industrial dispute" will be greatly assisted by the legislative intent reflected in the enumeration of what may loosely be described as industrial matters contained in section 34 (1) of the Act. It will also be assisted by the recent observa- tions of this Court on the correct approach to the construction of the expression "industrial disputes" in section 51 (xxxv) of the Constitution in Reg v. Coldham; Ex pane Australian Social Welfare Union (1983) 153 CLR, at pp. 312-313 ("the Social Welfare Union case"). The Court said: The words are not a technical or legal expression. They have to be given their popular meaning — what they convey to the man in the street. And that is essentially a question of fact. It is, we thing, beyond question that the popular meaning of "industrial disputes" includes disputes between employees and employers about the terms of employment and the conditions at work. Experience shows that disputes of this kind may lead to industrial action involving disruption or reduction in the supply of goods or services to the community. We reject any notion that the adjective "industrial" imports some restriction which confines the constitutional conception of "industrial disputes" to disputes in productive industry and organised business carried on for the purpose of making profits. The popular meaning of the expression no doubt extends more widely to embrace disputes between parties other than employer and employee, such as demarcation disputes, but just how widely it may extend is not a matter of present concern. Considering the present problem, it may be important to remember that the dispute in question is a dispute between the Union and the Committee. It is not a dispute between the appellant and the Committee. The definition of industrial dispute contemplates that a dispute may arise between one employee and his employer but it may be doubted whether such a dispute could arise over the dismissal of the employee after the employment was terminated for the reason that the disputant would no longer be an employee. Referring to Reg v. Marshall; Ex parte Plumrose (Aust) Ltd (1983) 1 VR 469, he said, at p. 515: First, a clear distinction should be drawn between employment of a person and reinstatement of a recently dismissed employee. As the court rightly observed, the power to direct that A employ B is a very drastic one. It is not lightly to be inferred in the absence of compelling language. But the difficulty of drawing such an inference is perhaps very much less in a case where, in the context of arbitrating a dispute concerning the fairness of a recent dismissal, a claim for reinstatement is made. The fact that industrial legislation in other places may expressly confer such a power does not necessarily deny its availability in the absence of such express mention; on the contrary it may serve to identify such a remedy as forming part of the recognised armoury of available remedies in the modern pursuit of harmonious industrial relations. However, it will always be a power to be exercised with caution, having regard to the circumstances of the case. There will be many cases where the working relationship of employer and employee is so close that to impose such a relationship by an award would be quite destructive of industrial harmony. This Court has never been required to consider a case in which an order for compensation has been made, following a dismissal which has been held to be unfair, which has not been merely supplementary to an order for re-employment. Even in cases where supplementary orders have been confirmed, they have been strictly limited to compensating for loss of earnings and have taken into account any earnings of the employee during the intervening period. Compensation in such a case has never been treated as being at large. There have, however, been cases decided by the Commission which have resulted in orders for compensation being made without any order having been made for reinstatement or re-employment. The first such decision appears to be Cliffs Western Australia Mining Co Pty Ltd v. The Association of Architects, Engineers, Surveyors and Draughtsmen of Australia, Union of Workers Western Australian Division (1978) 58 WAIG 1067, in which the Commission in Court Session set aside an order for re- employment of a dismissed employee and instead confirmed the termination of the employee's services, but ordered the former employer to pay the sum of $35 121 "in full and final discharge of all claims pertaining to his employment with that company". "Claims", it might well have been thought, was descriptive only of legal claims; but this was not the view adopted by the Commission. Commissioner Collier said, at p. 1070: This Commission is charged with the responsibility of acting according to equity, good conscience and the substantial merits of the case when exercising its jurisdiction under the Act. In my view it would be an inequitable decision and one devoid of good conscience if the Commission found that the termination of a worker's service was harsh and unjust yet took no action to reinstate the worker or provide some alternative remedy. Where the employer has been found to have acted harshly or unjustly in a termination he should not be able to maintain his decision simply on the assertion of irretrievable breakdown of relationship unless he is prepared to fairly compensate the worker for the 68 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 17 loss of his job. What that compensation should be depends on the circumstances of the individual case but the nature and salary of the position together with the likelihood of gaining similar employment elsewhere, housing and related matters, disruption to family life are factors which come readily to mind. Subsequently, in O'Dwyer v. Karratha Recreational Council (Inc) (1981) 61 WAIG 850, which was a decision of the Full Bench, it was held that the power to order compensation was incidental to the power to deal with the unfair dismissal of an employee. The President observed that the Commission was not dealing merely with a breach of contract and that the Commissioner from whom the appeal was brought did not err in failing to order compensation on a similar basis to the measure of damages for breach of contract. However, he con- sidered that the Commissioner had failed to consider all the relevant factors. He said, at p. 851: I think he ought to have considered that the appellant could not reasonably expect to get another job with comparable conditions in the same small town and would have to move, resettle his family and re-establish himself in similar employment. Given the obligations of the appellant to mitigate his loss I am of opinion that he could not reasonably expect to rehabilitate his position in less than three months. Furthermore the Commission should have regarded it as significant that by the date of the order he has waited almost three months for vindication of his claim, although I do no more than mention that fact. I find that, in the proper exercise of his power to do what was just and right, the Commissioner, taking account of all the factors made known to him, should have ordered compensation for the loss of income to the applicant for three months from dismissal. The Full Bench increased the Commissioner's award from $500 to $5 500, representing what was said to be loss of income for three months from dismissal. It declined to make any deduction for the appellant's liability for tax, holding that that was only relevant to notional tax on notional income derived from damages attributable to future economic loss. The Full Bench in this case did not examine closely the existence of the jurisdiction which it purported to exercise, once having decided that the dismissal of the employee was an industrial matter. It referred without comment to the previous case. It should, however, be noted that in O'Dwyer's case, the contract of employment which was unfairly terminated appears to have been a contract for a fixed term of one year. In the present case, the contract of employment was terminable on four weeks' notice. The critical question in this case has some similarities to that which arises in relation to retrenchments. In Totalisator Agency Board v. Federated Clerks' Union of Australia Industrial Union of Workers, WA Branch (1980) 60 WAIG 624, the Industrial Appeal Court confirmed the power of the Commission under the former Act to insert into an award a provision requiring the employer to offer suitable alternative employment to employees whom it had served with redundancy notices. That decision, with respect, appears to be quite exceptional. It involved inserting a provision in an award in advance of the occurrence of retrenchments. The Full Bench, however, took the matter a step further in Amalgamated Metal Workers and Shipwrights Union of Western Australia v. Bell Bros Pty Ltd (1983) 63 WAIG 1547, a decision under the present Act. In that case, it was held unanimously that a claim by a former employee to be paid pro rata long service leave, following his retrenchment by his employer, is an industrial matter, there being at law no entitlement to such a payment. Having rightly rejected the view that the Commission's jurisdiction was necessarily dependent upon the present existence of an employer-employee relationship, the Full Bench went on to rely heavily upon a number of South Australian authorities in reaching its conclusion in favour of the claim. But, with respect to the Full Bench, the definition of "industrial matter" in the South Australian Act is significantly wider than that in our Act. Specifically, it includes not only any matter or thing relating to any industrial matter, but also any matter or thing arising from any such matter. This led Olsson J. in the Bridgeway Hotel case (1980) 47 SAIR 345, at p. 361, to observe that the expression of jurisdiction in the South Australian Act was, in vital respects, unique in Australian industrial legislation and that other Australian authorities appeared to him to have limited relevance to that State's legislation. See also Federated Miscellaneous Workers' Union of Australia (South Australian Branch) v. Sola Optical Australia Pty Ltd (1982) 1 IR 248. Furthermore, at least in part, the Full Bench relied upon paragraph (h) of the definition of industrial matter, which has since been repealed, apparently on the ground that it is better expressed in terms of the manner in which the Commission's jurisdiction should be exercised rather than as a head of jurisdiction. The Full Bench took the view that the matter affected or related to the employer and employee as such, and that it arose directly from the termination of the employee's service. It was, it held, within the sphere of the relationship between the parties as employer and employee. The Commission exercising jurisdiction conferred by the Industrial Relations Act has the powers expressly or by implication conferred by the legislation. In addition, it has the powers which are incidental and necessary to the exercise of the jurisdiction or the powers so conferred — see Parsons v. Martin (1984) 58 ALR 395 at p. 401. If it be accepted, as I consider it should, that the Commission has jurisdiction to order an employer to re- employ a recently dismissed employee, does it follow, as the respondent contends, that, if it declines to exercise that jurisdiction, it has the jurisdiction to make an order that the employer compensate the employee, and, in particular, that the employer compensate the employee beyond any amount which the employee could reasonably have recovered at common law. This is not a conclusion which sits easily with section 29 (b) of the Act, for it would mean that, under paragraph (i) the Commis- sion's jurisdiction to order compensation is at large, whereas, under paragraph (ii), it is strictly limited to allowing an entitlement arising out of the employee's contract of service. The preferable view appears to me to be that the jurisdiction under paragraph (i) is limited to ordering re-employment whilst the remedy under para- graph (ii) is restricted to the employee's contractual rights. The words of Gibbs C. J. in Slonim v. Fellows at p. 510 are apposite here: "The dispute in the present case concerns whether the (employee) was fairly dismissed, and if not, whether (he) should be reinstated". In other words, the jurisdiction of the Commission to deal with the recent unfair dismissal of an employee extends to ordering the employer to re-employ him; but it does not extend to making an order for compensation at large, quite' unrestricted to the legal entitlement of the employee at the time of his dismissal. If that power exists, it is difficult to set any limits to it. It is, I think, significant that the respondent did not cite any authority from any other State in Australia in which an order for compensation has been made in circumstances such as the present, although there are numerous instances where re-instatement has been ordered. It is further to be observed that, in South Australia, where the powers of the Commission are already extremely wide, the Industrial Conciliation and Arbitration Act 1972 was amended in 1984 to confer this power expressly upon the Commission — section 31 (3) (c). In my opinion, if the Parliament desires the Commission to have such a power, it should legislate to that effect, as indeed it has already done in the limited context of section 961. This conclusion is not one which I have reached without difficulty, and it has been reached in an 68 W.A.I.G. appreciation of the apparent width of the jurisdiction conferred on the Commission by section 23 (l)of the Act to inquire into and "deal with" any industrial matter [except any matter provided for in paragraph (a)]. It should, however, be observed that the jurisdiction is con- ferred "subject to this Act". Furthermore, to deny the power to order compensation in this case is not to deny the Commission power to deal with the industrial matter. It is simply to deny that its power to do so is uncon- strained in any manner. It may deal with a complaint of unfair dismissal in the most appropriate manner, by ordering re-employment in a proper case. If the respon- dent's argument were correct, it is not difficult to envisage a vast range of powers which would be available to the Commission which it can never have been thought to have been conferred upon it. I would allow the appeal and quash the order of the Commissioner. Counsel should, however, be heard upon the question of any entitlement which Mr Pepler may have in the light of the Commissioner's finding that he should not have been summarily dismissed. OLNEY J.: The facts of this case and the course of the proceedings that have led the parties into this Court are set out in the reasons to be delivered by Rowland J. and it is therefore unnecessary for me to repeat the same in detail. This is an appeal from a decision of the Full Bench of the