2006 WAIRC 05549
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES Merete Lund Pagh & Peter Boye Pagh
APPLICANTS
-v-
Rod & Peta Croxford, Cocos Village Bungalows
RESPONDENTS
CORAM Commissioner J H Smith
HEARD Friday, 25 August 2006
DELIVERED FRIday, 6 OCTOBER 2006
FILE NO. U 215 OF 2006, U 216 OF 2006
CITATION NO. 2006 WAIRC 05549
CatchWords Jurisdiction as to "industrial matter" - Extra-territorial effect of the Industrial Relations Act 1979 (WA) considered - Industrial Relations Act 1979 (WA) s3(6); s7, s23 and s29(1)(b)(i); Cocos (Keeling) Islands Act 1955 (Cth) s7A, s8A, s8A(1) and s8A(2); Applied Laws (Implementation) Ordinance 1992 (Cth) s6 and Schedule4; and Australian Constitution (Cth) s109
Result Orders dismissing applications issued
2006 WAIRC 05549
Representation
Applicants Mrs M L Pagh & Mr P B Pagh
Respondents Mr R and Mrs P Croxford (on behalf of the Respondents)
Reasons for Decision
1 These are applications by Merete Lund Pagh and Peter Boye Pagh ("the Applicants") under s29(1)(b)(i) of the Industrial Relations Act 1979 ("the IR Act") for orders pursuant to s23A of the IR Act. The Applicants claim that they were harshly, oppressively or unfairly dismissed by RodneyCroxford and PetaCroxford, Cocos Village Bungalows ("the Respondents") on 20February 2006.
2 The Applicants were engaged to manage and caretake the Cocos Village Bungalows on Cocos (Keeling) Islands which is a Territory of Australia and outside the limits of the State of Western Australia. The applications were listed for hearing to determine whether the Commission has jurisdiction to hear and determine the applications. The issue was raised by the Commission on its own motion. The issue is whether this Commission has jurisdiction to hear and determine the Applicants' claims under s29(1)(b)(i) of the IR Act where the work, the subject of the contract of employment was carried outside the limits of Western Australia. During the hearing of the territorial issue the Respondents raised an additional jurisdictional issue. The issue raised is whether the jurisdiction of the Western Australian Industrial Relations Commission is ousted by the jurisdiction by the Australian Industrial Relation Commission.
3 The Applicants are Danish and the holders of Danish passports. They were granted resident status enabling them to reside in Australia in 1982. The Applicants have two sons who reside in Melbourne. It is common ground that at all material times the Applicants' place of employment and all work carried out by them took place in a Territory of Cocos (Keeling) Islands and that the termination of the Applicants' employment occurred in the Territory of Cocos (Keeling) Islands.
The Applicants' Evidence
4 The Applicants claim that they have been resident in Western Australia since 2November 2002.
5 In November 2002, the Applicants were staying with a friend, Henning Nielsen in Mandurah, Western Australia, when they met Rodney and Peta Croxford. When they met they discussed the fact that MrPagh had recently applied for a job on Cocos (Keeling) Islands but had been unsuccessful.
6 MrPagh testified that since 7November 2002, he and his wife have resided in Western Australia on four occasions. After they met Mr and MrsCroxford in November 2002, the Applicants travelled around Australia and returned to Denmark on several occasions. When they visited Western Australia after November 2002 on one occasion they stayed at MrNielsen's house for three months, on another occasion they stayed for two months and on one occasion they looked after a house owned by a neighbour of Mr Nielsen's. On no occasion did the Applicants acquire or rent their own premises in Western Australia nor did they pay rent to anyone. In the beginning of 2005 they returned to Denmark for a period of six months.
7 Shortly before 2September 2005 whilst the Applicants were in Denmark, MrPagh received a telephone call from a friend who told them that they had heard that Mr and MrsCroxford were looking to employ managers for the Cocos Village Bungalows. Mr and MrsPagh were interested in applying for the positions, so MrPagh telephoned MrCroxford. At that time Mr and MrsCroxford were in Mandurah. After the telephone conversation the Applicants and Mr and MrsCroxford communicated about the jobs by email. On 2September 2005, Mr and MrsPagh sent Mr and MrsCroxford an email in which they stated that they had "just spent the summer in Denmark and are now planning for Australia to escape the Danish winter as usual". In that email they provided details of their address and telephone number in Denmark and stated that their address in Australia was 2Liris Court, Ringwood, Melbourne in Victoria. MrCroxford replied to Mr and MrsPagh's email on 10September 2005 from Mandurah. In that email MrCroxford informed Mr and MrsPagh that he intended to hold a meeting the following Monday morning with the bungalow partners to discuss the Applicants' applications for managers. In that email he also stated the details of the jobs of managers were as follows:
"Basically the job is to do what ever is necessary to efficiently run & maintain our 10 bungalow tourist accommodation business in a tropical island paradise – see website www.cocosvillagebungalows.com I have an incomplete Managers Guide I have been working on which will assist you with details, but it is really just hospitality, good business practice & common sense.
We would like a 12 months commitment if possible (after a 3month probationary period for us both to confirm everything is OK), with options of further 12 months if it suits both of us. As this is a "life style" option for who ever takes it on, we will fit around your requirements as much as possible – Peta & I can come back to relieve you for a few months when ever you need to go home or Melbourne or what ever.
The remuneration package is based on exactly what Peta & I have been receiving for the past 3years:
a) Retainer of $500.00 per week to manage & maintain including general building/grounds maintenance & room preparation for cleaner - $26,000 pa.
b) Accommodation of $500.00 per week supplied free of charge – 2 bedroom + office spacious luxury upstairs apartment, best on Island - $26,000 pa.
c) Guest change over cleaning when ever cleaners can't do it or can not complete in time without your help @ $20/hr – this may vary between $3K - $8K pa.
d) We do not want you to do all the cleaning (worth $15K - $20K pa) unless there are no alternatives because you often need to have reliable help available to you.
So the annual package has been around $55K - $60K plus to $72K if you do everything – not recommended if you want time to enjoy the life style.
However, in that package Peta & I have been & still will be doing the marketing, promotions, accounting, etc now off island – just guessing about $5K of that package will need to be allocated to us to continue with that & other off island management."
(Exhibit1)
8 On 12September 2005, the Applicants replied to emails sent by Mr and MrsCroxford sent on 10 and 11September 2005 and informed Mr and MrsCroxford that they accepted the Respondents' offer to work as managers to run and maintain 10 bungalows on Cocos (Keeling) Islands. In that email the Applicants stated that they were aware that there was a minimum of 12months commitment (a three month probationary period) and an option of a further 12months. Arrangements were then made for the Applicants to travel to Melbourne from Denmark and on to Cocos (Keeling) Islands. The Applicants travelled to Melbourne where they stayed for three days. They then drove their vehicle from Melbourne to Mandurah and stayed with Mr and Mrs Nielsen for two days and then flew to Cocos (Keeling) Islands on 2November 2005. The Respondents paid for the Applicants to fly to Cocos (Keeling) Islands (Exhibit1). When they arrived Mr and MrsCroxford met them.
9 Pursuant to the terms of the Applicants' remuneration package they were paid $500 (gross) a week. The money paid into their bank account in Melbourne by bank transfer. The Applicants' employment was terminated by Mr and MrsCroxford on Cocos (Keeling) Islands on 20February 2006.
The Respondents' Evidence
10 Mr Rodney Croxford testified that his address is 173CluniesRoss Avenue, Cocos (Keeling) Islands. MrCroxford and his wife own 25per cent of the Cocos Village Bungalows through the ownership of their company, Syndic Pty Ltd. There are seven other owners of the Cocos Village Bungalows who all reside in Western Australia and together with Syndic Pty Ltd they own the business in partnership. MrCroxford testified that he thought that some of the other owners hold their interest in the business through companies but he was not sure.
11 Mr and MrsCroxford lived on Cocos (Keeling) Islands permanently for six years from 1998 until the beginning of 2005. Since the beginning of 2005 they have spent a significant amount of time away from Cocos (Keeling) Islands because they have been assisting their daughter to build a house in Kalgoorlie in Western Australia. Mr and Mrs Croxford are not registered to vote in Western Australia. As they are owners of property in Cocos (Keeling) Islands, they are registered to vote in the Northern Territory. MrCroxford holds a Cocos (Keeling) Islands driver's licence but not a Western Australian driver's licence. Their company, Syndic Pty Ltd, owns a house in Mandurah which they use as their holiday accommodation.
12 MrCroxford testified that all the partners attend an annual general meeting in March of each year at the Cocos Village Bungalows on Cocos (Keeling) Islands. In March2005, a motion was passed by the partners to seek to engage managers of the bungalows on a probationary basis. MrCroxford testified that the only reason why the offer of employment was made to the Applicants from Mandurah was that he and his wife were on holiday in Mandurah at the time the offer was made. He convened a meeting of the other partners in Mandurah on 12September 2005, before the offers of employment were made to the Applicants, as it was convenient to do so at that location.
13 MrCroxford testified that all banking takes place on Cocos (Keeling) Islands. The Respondents have a Commonwealth Bank account with a Cocos (Keeling) Islands agency which is located at the Cocos Co-operative. However, because it is an agency the branch is located in MtHawthorn in Western Australia. All payments were made to the Applicants by electronic banking through the internet.
Extra Territorial Effect of the IR Act
14 Section 3 of the IR Act provides:
"(1) Subject to subsections (5) and (6) where any industry is carried on—
(a) partly within the State and partly within an area to which this subsection applies; or
(b) wholly or partly in an area to which this subsection applies, and—
(i) facilities for servicing or supporting that industry are maintained in the State by or on behalf of the employer concerned;
(ii) the employer concerned is connected with the State;
(iii) that industry is carried on from, or on, or by means of, an aircraft, ship, or vessel certificated, registered, or licensed under a law of the State or by a public authority, or which is required to be so certificated, registered, or licensed;
(iv) that industry is carried on from, or on, or by means of, a rig or other structure, installation, or equipment, the use or function of which is regulated by the State or by the State and the Commonwealth, or is required to be so regulated;
(v) that industry is authorised or regulated by the State or by the State and the Commonwealth; or
(vi) that industry is carried on pursuant to a law of the State,
then this Act applies to and in relation to that industry in so far as any employment relates to the area to which this subsection applies and in any such case this Act also applies to and in relation to any industrial matter or industrial action related thereto, and any jurisdiction, function, duty, or power exercisable, imposed, or conferred by or under this Act extends thereto.
(2) An employer shall, for the purposes of subsection(1), be connected with the State if that employer—
(a) is domiciled in the State;
(b) is resident in the State, normally or temporarily;
(c) being a body corporate, is—
(i) registered, incorporated, or established under a law of the State;
(ii) taken to be registered in the State; or
(iii) a related body corporate of such a body for the purposes of the Corporations Act2001 of the Commonwealth;
(d) in connection with the industry concerned, has an office or a place of business in the State; or
(e) is the holder of a licence, lease, tenement, permit, or other authority, granted under a law of the State or by a public authority under or by virtue of which the industry is carried on.
(3) The areas to which subsection(1) applies are—
(a) that area situate west of 129° of east longitude reckoning from the meridian of Greenwich, that is part of the areas known as and comprised within—
(i) the Australian fishing zone as defined by the Commonwealth Fisheries Act1952; or
(ii) the continental shelf, within the meaning of the Convention on the Continental Shelf a copy of which in the English language is set out in Schedule1 to the Commonwealth Petroleum (Submerged Lands) Act1967;
(b) any other area seaward of the State to which from time to time the laws of the State apply or, by a law of the Commonwealth, are applied.
(4) For the purposes of any proceedings under this Act an averment in the application or process—