Ace Business Brokers Pty Ltd v Phillips-Treby

Ace Business Brokers Pty Ltd v Phillips-Treby - [2008] NSWIRComm 112 - NSWIRComm 1989 case summary — Zoe

[6]

Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 Austin v NF Importers Pty Ltd & Anor (2005) 146 IR 113 Australian Medical Association (NSW) Limited v The Director-General, NSW Department of Health, in respect of the Hunter New England Area Health Service [2007] NSWIRComm 289 Box Valley Pty Ltd v Price (2000) 97 IR 484 Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264 Chamber of Manufacturers of New South Wales; Dispute re Bread Industry and Baking Trade Employees Union (Unreported, Sweeney J, 7 December 1989) De Simone Consulting Pty Ltd v Ison (2000) 97 IR 478 Dow Corning Australia Pty Ltd v Monk and Others [1984] 2 NSWLR 13 In re Asbestos Sheet Makers (State) & Other Awards (No. 2) (1961) 60 AR 478 In re Maritime Services Board (Dredges &c.) Conciliation Committee (1962) 61 AR 216 In re New South Wales Public Service Clerical Officers' Association (1951) 50 AR 331 In re Town, Shire and County Clerks (State) Conciliation Committee (No 2) (1966) 66 AR (NSW) 390 CASES CITED: Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Monk v Dow Corning Australia Pty Ltd [1984] 2 NSWLR 485 Perrott v XcelleNet Australia Ltd (1998) 84 IR 255 Leaves v Mercedes-Benz Pty Ltd (1986) 28 AILR 307 R v Aird; Ex parte Australian Workers' Union (1973) 129 CLR 654 R v Neil and Anor; Ex parte Cinema International Corporation Pty Ltd and Ors (1976) 134 CLR 27 R v McKenzie and Ors; Ex parte Actors and Announcers Equity Association of Australia (1982) 148 CLR 573 R v Portus; Ex parte Federated Clerks' Union of Australia (1949) 79 CLR 428 R v Watson; Ex parte Australian Workers' Union (1972) 128 CLR 77 Re Building and Construction Industry Labourers on Site (State Award) (Unreported, Cahill J, 21 October 1986) Re University Employees (State) Conciliation Committee per Beattie J, Matter Nos 532 of 1974 and 10 of 1975, 6 June 1975 at 21 (1975 AILR 538) Reeves v FLAIEU, NSW Branch (Unreported, Maidment J, 1 February 1990) SDA v Norman Ross Homeworks Pty Ltd (Unreported, Hungerford J, 11 December 1989) Strathfield Group Ltd v Hall (2002) 121 IR 158

[28]

The Hunter New England Area Health Service and New South Wales Health have unilaterally introduced a new policy whereby doctors employed as Staff Specialists in a given hospital cannot also be engaged as Visiting Medical Practitioners (VMP's/VMO's) in another hospital if those two hospitals are within the one Area Health Service. 2. This is causing difficulty to our members who are employed as Staff Specialists in one hospital and hold VMP contracts in another hospital within the one Area Health Service. 3. This is a unilateral change to the conditions on which the doctors can be engaged and affects the ability of the doctors to offer services to hospitals within the one Area Health Service. 4. The change seems to have come about as a result of the merging of a larger number of smaller Area Health Services into a smaller number of larger ones in recent times. 5. The notifier does not see why the merging of Area Health Services should allow the Area Health Service and NSW Health to unilaterally alter the conditions on which the doctors can be engaged. 6. The notifier is concerned that this change to the way the doctors can be engaged may result on a risk to the public in that medical services will not be provided to as broad a range of hospitals as they once were, due to the restrictions placed on doctors as a result of this new 'policy'. 7. The Area Health Service has further informed Dr Thambar that in order to remain providing services to Tamworth Hospital, he will be engaged as a staff specialist at Tamworth Hospital, where he previously held a VMO contract. The Area has indicated that they are able to do this in accordance with the Work Location Clause contained in the Staff Specialists' Award. The Notifier believes that the Work Location clause does not cover this situation, as the travel distance between the two hospitals (from John Hunter in Newcastle to Tamworth) is unreasonable. 8. Dr Thambar has a VMP/VMO contract that has expired. The notifier seeks that a temporary VMP contract be offered until this dispute is resolved. 9. The notifier seeks an Order from the Commission that this new policy be abandoned by the Respondent, and that the doctors continue to be able to hold Staff Specialist and VMP/VMO contracts in different hospitals within the one Area Health Service. 10. Any other orders that the Commission sees as appropriate.

[33]

14 Neither s 130, the definition of industrial dispute, or the definition of industrial matter, is concerned with the question of who may be a party to an industrial dispute. Section 130 rather deals with notification of disputes to the Commission. In the case of employers, they may only notify a dispute if they are, or are likely to be affected by the dispute, or are, or are likely to be the subject of a secondary boycott, in connection with the dispute. There are no such limitations imposed in the case of industrial organisations, or State Peak Councils. 15 The argument advanced by the appellant requires that a limitation be read into s 130, namely, that an industrial organisation may only notify a dispute to which it is a party. This, it was argued, flowed from the scheme of the Act, which establishes a system of registration of organisations of employers and employees and does not envisage that the one organisation may represent both the interests of employers and employees (see Chapter 5 Industrial Organisations). It also envisages that the Commission may make demarcation orders, in the case of organisations representing employees, for example, demarking their respective industrial interests (ss 144 and 294), but cannot make such orders as between organisations of employers and employees. 16 Even accepting these features of the Act, the result that the seemingly clear and unambiguous words of s 130 should be read down, in the way proposed by the appellant, in our view is neither an obvious or appropriate approach to the construction of this part of the Act, particularly when other provisions of the Act are considered. The appellant's arguments seemed to us, entirely inconsistent with the purpose of s 130. 17 The provisions of s 130 may also be contrasted with the provision made in s 11 of the Act, which regulates who might make an application to the Commission for the making of an award fixing conditions of employment. That section provides: 11 When award may be made (1) An award may be made: (a) on application to the Commission or on the Commission's own initiative, or (b) in the course of an arbitration by the Commission under Chapter 3 to resolve an industrial dispute. (2) An application for an award may be made only by: (a) an employer, or (b) an industrial organisation of employers or employees, or (c) a State peak council. (3) Anyone who can apply for an award may become a party to any proceedings for making an award. (4) An applicant for an award, or to become a party to the making of an award, is required to satisfy the Commission that it or any one or more of its members has a sufficient interest in the proposed award. 18 It is apparent from s 11, that if an application for an award is made by an industrial organisation, either directly, or during the course of an arbitration under s 136 of the Act, following the notification of a dispute, the organisation must demonstrate that 'any one or more of its members has a sufficient interest in the proposed award'. Such a limitation is not, however, imposed in relation to the earlier notification of the dispute under s 130 of the Act. Had the legislature intended such a limitation at the time of dispute notification, undoubtedly it could have said so. That it chose to adopt another approach, is a matter which cannot be overlooked and must be given effect. 19 Such a dichotomy of approach as to who might bring proceedings in the Commission, is entirely consistent with the scheme of the Act, which on the one hand encourages and regulates the role of organisations, in representing their members' interests, but on the other, seeks to ensure that disputes are easily and quickly able to be brought to the attention of the Commission, by the wide class of persons specified in s 130. 20 Furthermore, it is entirely logical that an industrial organisation might wish to bring the existence of a dispute to the Commission, even if it is not a party to that dispute. Its members might, nevertheless, be affected by the dispute, or its potential resolution. An organisation's interests and concerns might also permit it to intervene in dispute proceedings, or might result in the Commission concluding that it is an entity which might assist in the resolution of the dispute and so should be required to participate in the conciliation conference called by the Commission. Thereby, such an organisation might become a party to the proceedings. Once, however, a party wishes to seek an award, which regulates conditions of employment of employees, the Act is concerned, in s 11, to ensure that the applicant for the award has the necessary interest in what is so sought, namely, in the case of a registered organisation, the right to represent members with a sufficient interest in the subject matter of the award. 21 Other provisions of the Act confirm our conclusion as to the proper interpretation of s 130. Section 187 specifies who might appeal a decision made in arbitral proceedings, under s 136. Just as notifiers of a dispute are not limited to parties to the dispute, appellants are also not limited to the parties to the dispute. The section provides: 187 Appeal to Full Bench from decision of Commission The following may appeal to a Full Bench of the Commission against a decision of the Commission constituted by a single member: (a) a party to the proceedings in which the decision was made, (b) an industrial organisation, or an association registered under Chapter 6, affected by the decision, (c) the Minister if the Minister considers that the public interest is, or is likely to be, affected by the decision, (d) the President of the Anti-Discrimination Board if that President considers that the decision is inconsistent with the principles contained in the Anti-Discrimination Act 1977.

[49]

218 Criteria for registration (1) The Industrial Registrar is to grant the application for registration if, and only if: (a) the organisation is a genuine organisation of a kind that is capable of registration under this Chapter, and (b) the organisation is an organisation for furthering or protecting the interests of its members, and (c) the organisation is capable of representing its members in connection with industrial matters, and (d) in the case of an organisation of employees - the organisation has, at the time of registration, at least 50 members who are employees, and (e) in the case of an organisation of employers - the organisation has, at the time of registration, at least 2 members who are employers and those members employ between them at least 50 employees, and (f) the rules of the organisation make provision as required by this Chapter to be made by the rules of such an organisation, and (g) in the case of an organisation consisting of the members of a branch of an organisation - the branch is of sufficient importance to be registered separately, and (h) the organisation does not have the same name as that of an organisation registered under this Chapter and does not have a name that is so similar to such a name as to be likely to cause confusion, and (i) the name of the association is not, in the opinion of the Industrial Registrar, unsuitable to be the name of a registered organisation, and (j) in the case of a State organisation - a majority of the members present at a general meeting of the organisation or an absolute majority of the committee of management of the organisation has passed, under the rules of the organisation, a resolution in favour of registration of the organisation, and (k) in the case of a federal organisation - the rules of the organisation (including any parent body) confer on the organisation applying for registration a reasonable degree of autonomy in the administration and control of New South Wales assets and in the determination of questions affecting solely or principally members resident in New South Wales, and (l) in the case of a federal organisation of employees - the application for registration of the organisation is made with the consent of each registered State organisation whose constitutional coverage extends to all or any of the class of members proposed to be covered by the federal organisation, and (m) in the case of an organisation of employees - there is no other industrial organisation of employees to which the members of the organisation might conveniently belong. (2) An organisation may be registered even if its members include: (a) officers of the organisation, or (b) in the case of an organisation of employers - persons other than employees who carry on business but who do not have any employees, or (c) in the case of an organisation of employers - persons admitted to membership who have ceased to be employers, or (d) in the case of an organisation of employees - independent contractors who would be eligible for membership if their work were done as an employee. However, an organisation with any such members may be registered only if it is effectively representative of the members who are employees or employers, as the case requires.

[50]

30 The Act envisages that organisations of employers will represent their members' interests in that capacity and not others. To represent its members' interests, in their capacity as employees, if they happened also to be employed, would plainly be inconsistent with the rule that the AMA act as 'an association of employers'. The balance of that part of the rule, must be read in light of those introductory words. 31 The eligibility rules of the AMA permit it to enrol the persons affected by the present dispute because those persons fall within the class described in Rule 10.1. Hence, the organisation may enrol VMPs to the extent that persons, who are Registered Medical Practitioners, may be an employer or have the potential to be an employer. 32 Those rules do not permit the organisation to represent staff specialists who are engaged as employees. 33 The industrial dispute concerns the rights and entitlements of staff specialists as employees, not in some dual capacity in that role and as a VMP. It follows that, even if the doctors, the subject of this dispute, are legitimately enrolled as Members of the AMA, the organisation may not represent them in these dispute proceedings so as to prosecute for an award or order in resolution of the issues therein. 34 In our view, the Commission's power to make an award or order under s 136(1)(b) is coextensive with its powers under Ch 2 Part 1, so that an industrial organisation may only apply for an award or order in dispute proceedings where the organisation has the constitutional capacity to represent those persons (together with a sufficient interest - see s 11(4)). 35 The confinement of an organisation to act within its constitutional capacity has been long established in decisions of the predecessor of the Commission in various statutory contexts (but still relevant in the present context.) (See In re New South Wales Public Service Clerical Officers' Association (1951) 50 AR 331 at 363; In re Asbestos Sheet Makers (State) & Other Awards (No. 2) (1961) 60 AR 478 at 486 and In re Maritime Services Board (Dredges &c.) Conciliation Committee (1962) 61 AR 216 at 218 and, by analogy, numerous decisions in the federal arena as to the capacity of federal organisations generating a valid industrial dispute: R v Portus; Ex parte Federated Clerks' Union of Australia (1949) 79 CLR 428 at 432-433, 436; R v Watson; Ex parte Australian Workers' Union (1972) 128 CLR 77; R v Aird; Ex parte Australian Workers' Union (1973) 129 CLR 654; R v Neil and Anor; Ex parte Cinema International Corporation Pty Ltd and Ors (1976) 134 CLR 27 at 30; R v McKenzie and Ors; Ex parte Actors and Announcers Equity Association of Australia (1982) 148 CLR 573 at 574, 575. 36 We are also satisfied, however, that does not mean that it would not be an appropriate exercise of discretion at first instance to permit the AMA to participate in the proceedings; a matter to which we will now turn. Can the AMA otherwise participate in the proceedings? 37 Under the 1996 Act, if a dispute is notified to the Commission, or if it acts on its own initiative, in relation to any industrial dispute, in the first instance the Commission must conduct conciliation proceedings, in accordance with the provisions of s 132 of the Act: 132 Compulsory conference (1) For the purpose of resolving an industrial dispute, the Commission may convene a compulsory conference and require the attendance of any person whose presence the Commission considers would help in the resolution of the dispute. (2) A compulsory conference is to be presided over by a member of the Commission. (3) The Commission may confer with any person on any matter that may affect the resolution of an industrial dispute, without requiring the person to attend a compulsory conference. 38 Who such persons might be, is a matter in every case, for the member of the Commission to whom the proceedings are allocated, in this instance, the President, to determine. 39 Section 133 requires the Commission to conciliate and s 134 directs that the 'parties to the dispute', be assisted in the conciliation. Who the parties to the dispute are, is a matter of fact, to be determined by the Commission in any particular case, on the material it receives in the proceedings. On appeal, the appellant argued that there is a union of employees, ASMOF, which has the right to represent doctors employed by the appellant, who are affected by the subject matter of this dispute. It was also not in dispute that the Staff Specialists (State) Award applies to certain doctors employed in hospitals, who are affected by this dispute. It would appear on this material, that even though not thus far identified as a party to the dispute, that ASMOF should be given the opportunity to participate in the dispute proceedings which concern its members. 40 Sections 135 and 136 deal with the arbitration which might result, if the dispute is not resolved in conciliation. They provide: 135 Arbitration after attempted conciliation (1) The Commission is to deal with an industrial dispute by arbitration only if it is not resolved by conciliation. (2) Arbitration by the Commission is not to proceed until the Commission has issued a certificate that reasonable attempts have been made to resolve the industrial dispute by conciliation (certificate of attempted conciliation). (3) A certificate of attempted conciliation is to be provided to the President of the Commission unless the Commission is constituted by the President. (4) When determining whether to issue a certificate of attempted conciliation, the Commission must consider the effect that any industrial action in connection with the industrial dispute is having on the parties and the public generally. In particular, the Commission must give urgent consideration to the effect of industrial action in connection with a demarcation dispute. (5) A certificate of attempted conciliation may be issued on the Commission's own initiative or on application by any person authorised to notify the Commission of the industrial dispute. (6) The Commission must, without delay, issue a certificate of attempted conciliation on the application of any such person if the person satisfies the Commission that there is no reasonable likelihood that the dispute will be resolved by conciliation. (7) The Commission must, without delay, issue a certificate of attempted conciliation if the Commission decides that industrial action or duress necessitates the exercise of its arbitral powers. (8) The parties to the proceedings are to be provided with a copy of any certificate of attempted conciliation. (9) Nothing in this Act prevents the exercise of conciliation powers merely because arbitration powers have been exercised under this Act.

[51]

136 Arbitration of dispute (1) The Commission may, in arbitration proceedings, do any one or more of the following: (a) make a recommendation or give a direction to the parties to the industrial dispute, (b) make or vary an award under Part 1 of Chapter 2, (c) make a dispute order under Part 2, (d) make any other kind of order it is authorised to make (including an order made on an interim basis). (2) Any such action may be taken by the Commission on its own initiative or on application by any person authorised to notify the Commission of the industrial dispute. 41 These provisions highlight three features important to any consideration of the operation of this aspect of the statutory scheme. Firstly, the emphasis placed on the public interest (s 135(4)). Secondly, that the proceedings may involve persons who are 'authorised to notify the Commission of the industrial dispute' (ss 135(4) and 136(2)), as well as other 'parties to the proceedings' (s 135(8) and 'parties to the industrial dispute' (s 136(1)(a)). Thirdly, that in arbitral proceedings, the Commission may also take action 'of its own initiative' (s 136(2)). 42 That the legislature has deliberately used all three phrases, those 'authorised to notify the Commission of the industrial dispute'; 'parties to the proceedings' and 'parties to the industrial dispute', in the pivotal provisions of the Act, which deal with arbitral proceedings, may not to be overlooked, when construing this Act. Their use was plainly deliberate. They are not terms which can comfortably be construed in such a way, that they are to be treated as if they are merely interchangeable. The Act clearly envisages that while a broad class of person may notify a dispute under s 130 of the Act, arbitral proceedings may involve other parties, including parties who are not themselves parties to the dispute. 43 This construction is confirmed by the appeal provisions made in s 187, which provide that an appeal may be bought from a decision made by the Commission in arbitral proceedings, by both parties to the proceedings and industrial organisations affected by the decision, even if not parties to the proceedings below. 44 Rule 24 of the Commission's Rules, further confirms our view of the legislation. The Rule provides:

[52]

(1) Notification of an industrial dispute under section 130 or 332 must state the parties affected by the dispute, the applicable industrial instrument, if any, and give relevant particulars of the dispute. 45 It follows that if Boland J takes the view that the AMA's participation 'would help in the resolution of the dispute', it may be required to participate in the proceedings and be given such right of appearance as may be appropriate in all the circumstances. 46 That Boland J might reach such a conclusion, does not seem surprising, on the material before us on appeal. The AMA is registered as an industrial organisation of employers under the Act. There is no dispute that it is entitled to represent doctors engaged by the respondent as independent contractors - VMPs, in relation to their interests as employers. 47 As we have observed, it seems to us unarguable, that under this statutory scheme, the AMA has no right to seek an order or award on behalf of a member, regulating the terms and conditions upon which that member may be employed by the appellant, if the member happens to be an employee. 48 That does not dispose of the question of whether the AMA may otherwise be able to be involved in dispute proceedings before the Commission, given other of its objects. As we have noted, in accordance with s 132 of the Act, if the Commission takes the view that the AMA's presence 'would help in the resolution of the dispute', it can be required to attend any compulsory conference convened by the Commission, in relation to the dispute. 49 While the appellant argued that the Act did not envisage disputes between employers being dealt with by the Commission, it is not unusual in dispute proceedings, for more than one employer, or organisation of employers, as well as various organisations of employees to appear, either as a party or an intervener, they each being concerned with the matters in dispute. Nor is it uncommon for such parties, even employers, to have quite differing views, often strongly held, as to the subject matter of the dispute. 50 While we take the view that Boland J erred in concluding that the AMA was entitled to represent its members in these proceedings, in their capacity as employees, that Boland J should take the view that the AMA should have a role to play in this dispute, would plainly be open to him, in the circumstances before him, given the provisions of s 132 of the Act and the AMA's rules. 51 In this respect, considering the AMA's rules, attention has to be paid both to its membership rules and its objects. They include the matters earlier set out and additionally:

[56]

Is Boland J entitled to deal with the dispute, acting of the Commission's own initiative? 54 There can be no question that his Honour's conclusion that the Commission has power to deal with this dispute under s 130(2) of the Act, once the dispute had come to the attention of the Commission, was correct. Thereby the Commission is empowered to 'act on its own initiative to resolve' such a dispute. His Honour did not expressly state in his judgment that, as a matter of discretion, the Commission would so act, but that was plainly implicit in his observations. 55 That was not a surprising exercise of the Commission's discretion, given the circumstances which confronted his Honour, namely a dispute about the work which doctors employed by the appellant, might be permitted to perform in the public hospital system. 56 After all, the Commission cannot help but be aware of the current ongoing public controversy as to doctor shortages and workload and working hour issues for doctors employed in the public hospital system, which has generated a public enquiry, which is ongoing, at present. These are matters which undoubtedly closely concern the public interest. Indeed, on the material before his Honour, that dispute concerned doctors employed by other Area Health Services, in addition to that first mentioned in the original dispute notification. 57 Nevertheless, the appellant argued that the scheme of the Act required that for the Commission to exercise its own initiative powers, there had to be an industrial dispute in existence, being a dispute between identified parties, who are given the right to notify the existence of the dispute to the Commission, under s 130. In this case, because the AMA did not have the right to represent the interests of its members as employees, in relation to the matters in dispute, the Commission could not act of its own initiative, and if that view were incorrect, that it would not so act, as a matter of its discretion. Those are arguments which we do not accept. 58 Such a narrow construction of the Act, imposing requirements on the Commission, in exercising its powers on its own initiative, not apparent on the face of the sections in question, appears to be directly contrary to the purpose of the Act. Such an approach would require the provisions of ss 130(2), 136(2) and 162 to be read down, in ways inconsistent with the intent of the plain words there used, namely that the Commission is not limited as to the circumstances in which it may exercise its functions, acting of its own initiative. That is a matter left entirely to the Commission's own discretion, in clear and unambiguous terms and permits no such narrow construction, consistently with the purposes of the Act. 59 Sections 130 and 136 have been earlier set out. In construing this statutory scheme, attention must be paid to its objects, which appear in s 3: 3 Objects The objects of this Act are as follows: (a) to provide a framework for the conduct of industrial relations that is fair and just, (b) to promote efficiency and productivity in the economy of the State, (c) to promote participation in industrial relations by employees and employers at an enterprise or workplace level, (d) to encourage participation in industrial relations by representative bodies of employees and employers and to encourage the responsible management and democratic control of those bodies, (e) to facilitate appropriate regulation of employment through awards, enterprise agreements and other industrial instruments, (f) to prevent and eliminate discrimination in the workplace and in particular to ensure equal remuneration for men and women doing work of equal or comparable value, (g) to provide for the resolution of industrial disputes by conciliation and, if necessary, by arbitration in a prompt and fair manner and with a minimum of legal technicality, (h) to encourage and facilitate co-operative workplace reform and equitable, innovative and productive workplace relations.

[57]

60 These objects underpin the approach adopted by the legislature in empowering the Commission to deal with industrial disputes which come to its attention, even in circumstances where there has been no notification of the dispute to the Commission, by those who are expressly given the right to make such notifications. Section 162 of the Act provides further confirmation of this power, if more were needed. It provides: 162 Procedure generally (1) The Commission may, subject to this Act, determine its own procedure. (2) The Commission: (a) is to act as quickly as is practicable, and (b) is to conduct its proceedings publicly or, if it considers it necessary, privately, and (c) may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and (d) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and (e) may sit at any place, and (f) may require a document to be served outside the State, and (g) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and (h) may dismiss at any stage any proceedings before it if it considers the proceedings are frivolous or vexatious, and (i) may exercise, on its own initiative, any function exercisable by it on application (except when it is in Court Session), and (j) may, on its own initiative, inquire into any industrial matter. 61 It should be observed, that even when disputes are first notified to the Commission, it is not infrequently the case, that all of the parties to the dispute are not identified in the dispute notification and are not readily apparent. Under this legislative scheme, that those who have the right to notify the dispute to the Commission have not acted, cannot be an impediment to the Commission acting to deal with a dispute, if necessary, of its own motion, as a matter of its discretion. Such a discretion is one which predecessors to this Commission were long granted, a matter to which we will return below. 62 In acting on its own initiative, the Commission has obligations imposed upon it by s 146: 2) The Commission must take into account the public interest in the exercise of its functions and, for that purpose, must have regard to: (a) the objects of this Act, and (b) the state of the economy of New South Wales and the likely effect of its decisions on that economy. 63 To construe the Act in a way that had the result that the Commission was constrained from dealing with an industrial dispute of which it became aware, which was, for example, adversely affecting the public interest, or the economy of the State, because the parties to the dispute were not already known, they having failed to take the step available to them, of notifying the dispute to the Commission, would simply be to subvert the purpose for which s 130(2) was enacted. That is, to enable the Commission itself to act in relation to a dispute, even when the parties to the dispute have failed to do so. 64 That approach to the construction of the legislation is consistent, we would observe, with the approach taken by the former Industrial Commission of New South Wales in Court Session to the construction of the Industrial Arbitration Act 1940 ('the 1940 Act'), in Monk v Dow Corning Australia Pty Ltd [1984] 2 NSWLR 485. (See also the judgment of the Court of Appeal in Dow Corning Australia Pty Ltd v Monk and Others ([1984] 2 NSWLR 13). There s 31 of the 1940 Act was considered. That section provided:

[63]

65 The approach of the former Commission in Monk, was followed in many later cases, despite the later amendment to s 31(b), to remove the right of individuals to make application to the former Commission. It was, nevertheless, accepted that it was open to persons not entitled to notify disputes to the Commission, to draw its attention to a state of affairs which the Commission might regard as appropriate for the exercise of its own initiative powers, albeit such powers would be used carefully by the Commission. (See for instance Leaves v Mercedes-Benz Pty Ltd (1986) 28 AILR 307; Re Building and Construction Industry Labourers on Site (State Award) (Unreported, Cahill J, 21 October 1986); SDA v Norman Ross Homeworks Pty Ltd (Unreported, Hungerford J, 11 December 1989); Reeves v FLAIEU, NSW Branch (Unreported, Maidment J, 1 February 1990); Chamber of Manufacturers of New South Wales; Dispute re Bread Industry and Baking Trade Employees Union (Unreported, Sweeney J, 7 December 1989)). 66 Section 31 of the 1940 Act was not by any means in identical terms to s 130 of the 1996 Act. Indeed, as we have earlier noted, in the current legislative scheme, various other sections arise for consideration, when the question of the Commission's power to act of its own initiative in relation to an industrial dispute, is considered. Nevertheless, it cannot be overlooked that both legislative schemes made clear provision for the Commission to act of its own initiative, in resolving industrial disputes, no matter how it is that such a dispute has come to its attention. 67 Ultimately, the determination by the Commission to Act on its own motion is an administrative one. If it is moved to act it may do so and will not regard itself as confined, even to an issue that may be adverted to in a notification, application or advice. (Re University Employees (State) Conciliation Committee per Beattie J, Matter Nos 532 of 1974 and 10 of 1975, 6 June 1975 at 21 (1975 AILR 538).) However, the Commission is bound to hear the parties on the issues raised in the proceedings created by its motion, and is confined by the jurisdiction conferred on it under the Act. (In re Town, Shire and County Clerks (State) Conciliation Committee (No 2) (1966) 66 AR (NSW) 390 at 391.) Naturally, the starting point of such a process would be to advise the parties that the Commission was acting on its own motion.

[67]

The Commission may make an award in accordance with this Act setting fair and reasonable conditions of employment for employees. 78 Conditions of employment is defined in the Dictionary to the Act as 'conditions of employment' includes any provisions about an industrial matter' and award is defined as 'award' means an award made, or taken to be made, by the Commission under this Act, and includes any order of the Commission under this Act that sets conditions of employment'. 79 As we have already observed, the definition of 'industrial matter', includes the 'privileges, rights and duties' of employees. The appellant argued that the Commission would not, as a matter of discretion, make the orders sought. We are satisfied that it is entirely too soon in these proceedings, to come to any views as to that matter, which can only be determined, in the light of any evidence led. Upon any remittal of this matter, it is a matter for Boland J to determine how any hearing should proceed, or whether further endeavours at conciliation should first be attempted. In this respect we note that no certificate of attempted conciliation has as yet been issued and accordingly, it appears that the conciliation phase of these proceedings, is potentially not yet at an end. It is always useful during the conciliation phase of any proceedings, for the parties to give serious thought to the orders which might be pursued in an arbitration. In that way, many settlements have been arrived at. 80 In all of these circumstances, we are well satisfied that while leave to appeal must be granted and the appeal upheld, in relation to the question of the AMA's right to represent its members' interests, in their capacity as employees, given Boland J's intention to act in relation to the dispute of the Commission's own initiative, the matter must be returned to his Honour, so that the matter may proceed, on that basis. 81 For the reasons given, we order that leave to appeal be granted, and the appeal upheld, in part. Orders 82 We make the following orders:

At a glance

Court

Decision date

Before

Source

Judgment (69 paragraphs)

2 The appeal is upheld, in part; 3. The matter is remitted to Boland J, President for further proceedings in accordance with this decision.

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Legislation Cited (1)

Cases Cited (16)

Cited By (4)