Recovery of employment entitlements

Today I received a letter from a partner (or to be fair the letter said a “Director’, which is very probably the same thing) of a major law firm with a St George’s Terrace address, a letterhead claiming to be a major international law firm, bearing lots of posh English words, Chinese symbols (maybe more accurately Mandarin or Cantonese) plus what looks to me like Spanish words as well, purporting to respond to a letter of demand I had forwarded to a well known Western Australian employer which has dudded one of my clients.

Believe it or not this letter from Messrs So and So suggested that I had made a mistake by threatening to sue their client in the Western Australian Industrial Relations Commission (WAIRC)for denied contractual benefit on the basis, according to the letter,

“Finally, we note that some misunderstandings appear to have arisen in relation to the appropriate jurisdiction for a contractual claim by ……… (my client) ……. (Their client) is, in our view, a national system employer. Accordingly, the Industrial Relations Act 1979 (WA) does not apply to (their client), or to (their client’s) employment of (my client). Should (my client) make a claim relating to contractual benefits in the Western Australian Industrial Relations Commission, (their client) Kids would object on the basis that the Federal Court is the appropriate jurisdiction within which to bring such a claim. We bring this to your attention so as to avoid unnecessary costs being expended.”

Now I have was a member of the Western Australian legal profession for a very long (1972-2015) and I have seen many stupid and ignorant claims made by lawyers over the years, more often than not accompanied with aggression, hostility and pomposity; because that is how the profession often behaves. This letter was, to give credit where credit is due, written in an entirely pleasant, polite, respectful and professional tone, grammatically correct, and perfectly wrong!

Section 29 of the Industrial Relations Act 1979 (WA) confers jurisdiction on the WAIRC to hear and determine claims by employees and former employees that they have been denied a benefit pursuant to a contract of employment (for example commissions earned or the benefit of a fixed term contract of employment). This is so whether the employer or former employer is an individual, a trust or a corporation which is national system employer.

The fact that an employer may operate in the national fair work system by being  a national system employer has absolutely nothing to do with the fact that by operating within Western Australian a corporation must submit to the State’s laws including the ability of an employee or former employee to recover compensation for denied contractual benefits in it industrial relations commission. It is accepted that such an employer is not covered by the State’s unfair dismissal and award coverage system, but that is the result of the Australia’s constitutional system under which the Commonwealth’s laws (if valid) overrule State laws to the extent of any inconsistency.

However there are no Commonwealth laws which purport to require a dispute involving a denied contractual benefit claim to be resolved exclusively by a Commonwealth tribunal (cf unfair dismissal) indeed given the separation of powers which is inherent in the Australian Constitution it is well settled that there could not be; hence the absolute legitimacy of the denied contractual benefit jurisdiction of the WAIRC including against national system employer clients of “major” (but wrong) law firms.

There endeth the lesson!