Dismissals and the Federal Conciliation and Arbitration System
| Published date | 01 September 1989 |
| Author | Maeve McDonagh |
| Date | 01 September 1989 |
| DOI | 10.1177/0067205X8901800303 |
| Subject Matter | Article |
1989]
Dismissals and the Federal Conciliation and Arbitration System
153
DISMISSALS AND
THE
FEDERAL
CONCILIATION
AND
ARBITRATION SYSTEM
MAEVE
MCDONAGH*
INTRODUCTION
One area in which the rights of Australian workers have lagged behind
their counterparts in other western democracies
is
that
of
protection against
unfair dismissal. The common law action for breach
of
the contract
of
employment has,
of
course, been open to employees in common law countries
including Australia but recognition
of
the inadequacy
of
this procedure has
led to the introduction
of
statutory protection against dismissal in anumber
of
common law jurisdictions including the United Kingdom. While some
of the Australian States have sought to legislate in this area the protection
available at federal level has, at least until recently, been inadequate.
This paper
will
explore the background to the federal dismissals jurisdiction
in Australia and the recent developments which have extended the protection
against unfair dismissal available within the Australian Conciliation and
Arbitrationsystem. Atfederal level, adualsystem
of
redress for unfairdismissal
has developed. Dismissals can be dealt with both by the Commonwealth
Conciliation and Arbitration Commission by virtue
of
it's role in the resolution
of industrial disputes, and by the Federal Court in the enforcement
of
award
provisions relating to unfair dismissals. The development
of
these two systems
of redress
will
be examined and they
will
be compared in terms
of
their
availability to dismissed employees and the scope
of
the remedies they afford.
2DISMISSALS AND
THE
COMMONWEALTH CONCILIATION
AND ARBITRATION COMMISSION
The jurisdiction
of
the Commonwealth Conciliation and Arbitration
Commission to deal with dismissal cases has been challenged many times
on constitutional grounds. The controversy has focused on the power
of
the Commission to order reinstatement ofunfairly dismissed employees. Three
main barriers to this jurisdiction emerged over the years. The first concerned
the question whether adispute relating to reinstatement
of
aworker would
be
an industrial dispute for the purposes
of
s51(35)
of
the Constitution and
would come within the jurisdiction of the Commission to deal with disputes
"as to industrial matters"
as
provided for in s 4 of the Conciliation and
Arbitration Act
1904
(Cth). Industrial matters are defined as "all matters
pertainingto the relations
of
employers and employees"and these are expressed
to include "the right to dismiss or to refuse to employ, or the duty to reinstate
in employment, aparticular person or class
of
persons".
In RvPortus;
ex
parte City
of
Perth1it was held that adispute relating
to the reinstatement
of
aworker merely pertains to the relationship between
aformer employer and aformer employee and therefore would not fall within
*
BA,
LLB (National University of Ireland), Solicitor, Lecturer
in
Legal Studies, La Trobe
University.
1(1973)
129
CLR
312.
154 Federal Law Review [VOLUME
18
the statutory definition. This conclusion was based on the decision in the
Hamilton Knight2case which related to ademand for pensions.
There was also the suggestion in the judgment
of
Gibbs Jin the Portus
case that ademand for reinstatement
of
adismissed worker could not give
rise to an industrial dispute since it would involve an extension of the powers
of
the Commission. He said:
Looked at from one point
of
view, the dispute may appear to be
as
to the employer's
power to dismiss or duty to reinstate in employment, but since it
is
intended that
no criteria should be laid down by which the extent of the power or nature of
the duty could be ascertained, it seems to
me
that what
is
in truth sought
is
an
extension
of
the powers
of
the Commission . . .the Commission cannot, by making
an award, increase its own powers or jurisdiction and ademand that it should
do so would not give rise to an industrial dispute.3
The second barrier to the exercise
of
the reinstatement jurisdiction
is
the
requirement that the industrial dispute be adispute "as to industrial matters
which extends beyond the limits of
anyone
state". In RvGough;
ex
parte
Cairns Meat Export
Co
Pty
Ltd
4and the Portus case the lack ofinterstateness
defeated the Commission's jurisdiction to hear the claim. Most dismissal
disputes would
of
course be local in nature and might be expected to find
it difficult to satisfy the interstateness requirement.
In RvGough;
ex
parte Meat
and
Allied Traders Federation
of
Australia5
the third barrier emerged. Here it was held that aproposal to include in
an award apower exercisable by the Commission to order reinstatement
of
an unfairly dismissed employee was invalid since it purported to confer
judicial power upon the Commission and therefore offended against the
principle established in the Boilermakers'case.6
On the basis of these decisions it appeared that there were insurmountable
obstacles to the jurisdiction of the Commission to deal with dismissals or
reinstatement. Notwithstanding these obstacles the Commission has exercised
ade facto jurisdiction in the area
of
reinstatement by virtue
of
which it
recommends the reinstatement
or
re-engagement ofunfairly dismissed workers
if the circumstances
so
justify. This means
of
settling dismissal disputes does
not lead to an order by the Commission but depends upon the parties agreeing
to accept the Commission's recommendation. It
is
often referred to
as
the
Commission's 'unofficial' reinstatement jurisdiction.
There
is
also the power
of
the Federal Court to order the reinstatement
of
workers dismissed on account of their union membership or activities.
Section 5
of
the Conciliation and Arbitration Act makes it an offence for
an employer to dismiss
or
otherwise prejudice his employee by reason
of
the latter's involvement in union activities. Where an employer
is
convicted
of
an offence under this section the court may order the reimbursement
of
any wages lost and may direct "that the employee be reinstated in his old
position
or
in asimilar position".7In victimisation cases there
is
astrong
presumptionin favour ofreinstatement. In Bowling vGeneral Motors Holden S
2RvHamilton Knight; ex parte Commonwealth Steamship Owners Association (1952)
86
CLR
283.
3(1973)
129
CLR
312, 325.
4(1962)
108
CLR
343.
5(1969)
122
CLR
237.
6RvKirby,
ex
parte Boilermakers Society
of
Australia (1957)
95
CLR
529.
7Conciliation and Arbitration Act
1904
(Cth) s5(5).
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