Case: Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200
Outcome: cited
The meaning of the expression "competent administrative authorities" in the Termination of Employment Convention thus falls for consideration. In Andersen v Umbakumba Community Council (1994) 56 IR 102 at 104-105, von Doussa J commented that "[t]he rules which govern a national court when construing an International Convention which has been enacted into Australian domestic law are more liberal than the traditional canons of construction of the English common law". His Honour's comment was cited with approval in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 (' Mohazab ') at 203. The Vienna Convention on the Law of Treaties 1969 (done at Vienna on 23 May 1969) 1155 UNTS 331 (entered into force on 27 January 1980) ('the Vienna Convention') provides relevant interpretative principles: see AB v Registrar of Births, Deaths and Marriages [2007] FCAFC 140 (' AB v Registrar ') at [80] per Kenny J; Povey v Qantas Airwas Ltd (2005) 2223 CLR 189 at 202 per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ; and Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 at 231 per Brennan CJ, 240 per Dawson J, 251-6 per McHugh J and 277 per Gummow J. Article 31(1) of the Vienna Convention requires that the Termination of Employment Convention be interpreted "in good faith in accordance with the ordinary meaning to be given to [its] terms ... in their context and in the light of its object and purpose". Context, for this purpose, includes the text and the preamble. State practice may be relevant: see Vienna Convention, art 31(3)(b). The Vienna Convention, in art 32, permits recourse to the preparatory work of the Termination of Employment Convention and the circumstances of its conclusion. 97 The preamble to the Termination of Employment Convention indicates that the Convention was designed to state international standards with regard to the termination of employment at the initiative of the employer. The Convention is obviously aimed at providing protection for workers against unjustified termination: see also Mohazab at 205 per Lee, Moore and Marshall JJ. 98 The Termination of Employment Convention sets out general principles in terms that allow ratifying countries a deal of flexibility in their manner of observation. Thus, art 1, which falls into Pt I headed "Methods of Implementation, Scope and Definitions", contemplates that States will differ in the manner in which effect is given the Convention, taking account of national differences. The basic principle affirmed in art 4 of the Convention is that an employee's employment is not to be terminated without a valid reason, being a reason relating to the employee's capacity or conduct or based on the operational requirements of the employer's undertaking. Article 5, with which this case is principally concerned, lists reasons that do not constitute valid reasons. Article 5 states reasons that "shall not constitute valid reasons for termination" include union membership or participation in union activities, acting as a workers' representative, race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin, and maternity leave. I have already referred to art 5(c), which is reproduced in s 659(2)(e) of the Act. I interpolate that the balance of art 5 is expressed in s 659(2)(b), (d), (f) and (h), although not always in terms identical with art 5. For example, s 659(2)(f) is wider than the equivalent art 5(d), presumably to give effect also to other international instruments such as the Convention concerning Discrimination in Respect of Employment and Occupation 1958 (C111) (done at Geneva on 25 June 1958: entered into force on 15 June 1960) and the Termination of Employment Recommendation 1982: see s 659(1). Article 6 provides that temporary absence from work because of illness or injury is not a valid reason for termination of employment: see s 659(2)(a). 99 Article 7, within Div B of Pt II, concerns procedure prior to or at the time of termination. Article 8 and 9, within Div C of Pt II, deal with appeal procedure. Other articles within Pt II relate to the period of notice (art 11) and severance allowance and income protection (art 12). Part III of the Convention is devoted to "Supplementary Provisions concerning Termination of Employment for Economic, Technological, Structural or Similar Reasons". 100 The Termination of Employment Convention uses the expression "competent administrative authorities" only once in art 5(c). Elsewhere the Convention refers to "competent authority": see, e.g, arts 2.4 and 2.5 ("measures may be taken by the competent authority or through the appropriate machinery"; art 8.2 ("competent authority" as opposed to "a court, labour tribunal, arbitration committee or arbitrator" in art 8.1 and "bodies" in arts 9.1 and 9.3; and arts 14.1 and 14.3 (notification to the "competent authority"). It may be inferred from this usage that the expression "competent authority" embraces any body that has the relevant capacity under national law to act in the way that the relevant article contemplates, as for example, to take the measures contemplated in arts 2.4 and 2.5, or to receive the notifications referred to in arts 14.1 and 14.3. It may also be inferred that the expression "competent authority" is wider than the words "a court, labour tribunal, arbitration committee or arbitrator". The expression "competent administrative authorities", on the other hand, apparently contemplates competent authorities of a particular kind. That is, the expression contemplates competent authorities of an administrative kind, as opposed to competent authorities of another variety (such as competent legislative authorities or competent judicial authorities). 101 The preparatory work is of some limited assistance. The Termination of Employment Convention has its immediate origins in the ILO Termination of Employment Recommendation , 1963 (R119) (done at Geneva on 26 June 1963). This instrument laid down basic standards regarding, amongst other things, the need for a valid reason for employment termination (point 2). It also contained the predecessor provision to art 5(c). It provided, at point 3(c), "the filing in good faith of a complaint or the participation in a proceeding against an employer involving alleged violation of laws or regulations" "should not constitute" a valid reason for termination. As can be seen, this early provision differed from the current art 5(c) in two respects: first, it contained a "good faith" requirement; and, secondly, it did not contain the expression "recourse to competent administrative authorities".