Alexander and others v Cambridge Credit Corporation Ltd

HEARING DATES: 04/06/2001 DATE OF JUDGMENT: 05/01/2001

APPELLANT Mr G Hatcher of counsel Mr M Davis, Solicitor - Middletons Moore & Bevins LEGAL REPRESENTATIVES: RESPONDENT Mr J Shaw QC Mr A Joseph - National Unions of Workers, New South Wales Branch

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CAMPBELLS CASH AND CARRY PTY LIMITED AND NATIONAL UNION OF WORKERS, NEW SOUTH WALES BRANCH.

Application for leave to appeal and appeal against extempore decision of Justice Wright, President, given on 9 March 2001 and decision of Mr Justice Maidment given on 4 December 2000 in Matter No. IRC1384 of 2000 and application for stay.

1 On 28 March 2001, Campbells Cash and Carry Pty Limited ("the appellant") lodged an application for leave to appeal and appeal against the decisions of Mr Justice Maidment of 4 December 2000 and Justice Wright, President, of 9 March 2001, whereby an award was made incorporating as one of its terms a clause concerning the deduction of union dues. This decision concerns an application made by the appellant for a stay of that aspect of the award made by Justice Wright concerning the deduction of union dues. Background to the Decisions 2 An enterprise agreement was made pursuant to the Industrial Relations Act 1996 ("the Act") binding upon the appellant and the National Union of Workers, New South Wales Branch ("the respondent"). That agreement applied to the employees of the appellant and operated for the period 1 December 1997 to 1 December 1999. The agreement continued to operate after the expiry of the nominal term (see s42 of the Act), although a notice of termination of the agreement was issued by the appellant pursuant to s44 of the Act.

3 The enterprise agreement contained a clause, cl35, concerning the deduction of union dues (although the clause was entitled "union recognition"). Clause 35 was in the following terms: 35 UNION RECOGNITION (i) It is the recommendation of Campbells that all its employees subject to this Agreement join the National Union of Workers, NSW Branch. Accordingly, the Company undertakes to positively promote union membership at the point of recruitment by strongly recommending that all employees join the National Union of Workers. (ii) All employees shall be given an application form to join the Union at the point of recruitment. (iii) Campbells undertakes upon authorisation to deduct Union membership dues, as levied by the Union in accordance with its rules, from the pay of employees who are members thereof. Such monies will be forwarded to the Union at the end of each accounting period with all necessary information to enable the reconciliation and crediting of subscription to members accounts.

4 The parties to the enterprise agreement failed to negotiate a further agreement upon its expiry. In the result, the respondent made an application for an award setting the terms and conditions of employment for persons engaged at the operations of the appellant. By that application, the respondent essentially sought that the terms of the enterprise agreement would continue with some improvements in wages and conditions. Clause 35 of the enterprise agreement would thereby become a provision of the proposed award.

5 A cross-application was filed by the appellant. That application, if granted, would have had the effect of applying to employees of the appellant the provisions of the Storemen and Packers General (State) Award.

6 As earlier mentioned, the appellant filed a notice of intention to terminate the enterprise agreement pursuant to s44(3) of the Act. Whilst the Commission does not have before it the actual terms of the notice of intention to terminate the enterprise agreement, it was submitted by Mr Hatcher of counsel, who appeared for the appellant, that the notice of intention to terminate the enterprise agreement would operate on and from the date of commencement of any award which resulted from the proceedings concerning the application and cross-application. In consequence, the grant of the application by the appellant at first instance would have had the effect of extinguishing the former provision for the deduction of union dues. In any event, by virtue of the notice issued by the appellant pursuant to s44 of the Act, the making of any award at first instance would have had the effect of terminating the enterprise agreement and, thereby, any provision for the deduction of union dues arising therefrom.

7 It should be noted that the appellant argued in proceedings before the President, and again in these proceedings, that the terms of the enterprise agreement concerning "union recognition" were not intended to be legally enforceable as the provisions of the enterprise agreement were dependant upon notions of "suasion". The enterprise agreement did not create enforceable rights. This construction of the enterprise agreement was essentially based upon the use of the word "undertakes" in cl35(3) of the enterprise agreement (although reference was also made to other provisions of the enterprise agreement which, by contrast, demonstrated an intention to create legal relations).

8 It should also be noted that after the inception of the enterprise agreement, the appellant initially introduced deductions for union dues. It was submitted by Mr Shaw QC, who appeared for the respondent, that the deduction of union dues were made by the appellant for a period of approximately seven months. That estimate of time was not conceded by Mr Hatcher, but he did acknowledge that the union deductions did operate under the agreement until those deductions ceased as a result, as he put it, of "views formed by my client's parent company in the course of a dispute in 1998". He further stated that "they have not been applied since 1998".

The Decisions 9 In Re Storeworkers - Campbells Cash and Carry Pty Limited (NSW), NUW (NSW Branch) Award 2000 [2000] NSWIRComm 244, Mr Justice Maidment reached the conclusion that, by and large, the enterprise agreement had provided satisfactory regulation of the relationship between the appellant and its employees. His Honour further concluded that the content of the enterprise agreement did not disclose any provision which ought not be contained in an award made as a result of special case proceedings (even though some of the provisions might exceed standards set by this Commission). His Honour concluded that any award made by the Commission should be based upon the terms of the enterprise agreement. He then turned to consider whether any changes to the enterprise agreement were warranted in the making of such an award. In that respect his Honour stated [at 39]: I should note that, having decided that any award emanating from these proceedings should essentially reflect the provisions of the 1997 Agreement, I approach the task of determining whether or not departure from its terms is warranted. As to the "improvements" in conditions sought by either party it seems to me that a special case for departure from the existing conditions would need to be demonstrated.

10 His Honour concluded [at 40] as follows: Neither party has made out a special case for departure from the existing conditions of employment. They each have put a conventional case, that of the NUW on the basis that improvements are desirable, that of Campbells on the basis

that it could meet its customers' demands more economically if the changes sought by it were granted. 11 However, his Honour did not make any award or order (other than perhaps refusing the respective applications), but rather stated [at 42]: I reach the view that it might be preferable to allow the agreement to continue to regulate the situation in the hope that the parties can negotiate a replacement, however, should the NUW upon consideration of this decision so desire, an award will be made in terms reflective of the terms of the 1997 Agreement with any departures agreed between the parties which do not offend against principle and test case provisions. 12 The matter was re-allocated to his Honour, the President, after Mr Justice Maidment proceeded upon pre-retirement leave. The matter proceeded before his Honour upon the basis of the parties having accepted (correctly in the view of his Honour) that the role of the Commission was limited to implementing the decision of Maidment J. That is, the role of the Commission was identified as being one in which the Commission would make an award in terms of the express intention of Maidment J, although the parties accepted that there may be some limitations implicit in his Honour's decision, such as possible jurisdictional limitations in some areas. The appellant, in submissions made in support of its application for a stay, contended that the role of the Commission, so stated, was also confined to the translation of the provisions of the enterprise agreement into an award, so far as those provisions were appropriate for inclusion in an award. 13 A number of such difficulties were identified but resolved in discussions between the parties. There remained one issue, namely, whether the award made in consequence of the decision of Maidment J and the proceedings before his Honour, the President, should contain a provision for the deduction of union fees having regard to cl35 of the enterprise agreement. 14 In his decision in Re Storeworkers - Campbells Cash and Carry Pty Limited (NSW), NUW (NSW Branch) Award 2000 (No. 2) [2001] NSWIRComm 53 [at 6], Wright J, President, records the union's claim in respect to the disputed matter as follows: The company undertakes, upon authorisation, to deduct union membership dues, as levied by the union in accordance with its rules, from the pay of employees who are members thereof. Such moneys will be forwarded to the union at the end of each accounting period with all necessary information to enable the reconciliation and crediting of subscription to members' accounts. 15 This provision was cl37 of the proposed award, as amended. In the proceedings before the President, the appellant contended that there was no power in the Commission to grant the provision for union deductions sought by the respondent. It was also contended, as earlier noted, that the provisions of cl35 of the enterprise agreement did not create a legally enforceable right in the respondent for union deductions. 16 Wright J found that the Commission had jurisdiction to award the provisions sought having regard to the terms of s6(2)(i) of the Act. 17 Further, his Honour concluded that the decision of Maidment J, taken as a whole and with particular reference to paragraph 42 thereof, indicated an intention to include a provision for the deduction of union dues. His Honour concluded that, in those circumstances, it was appropriate to include in the proposed award "a provision along similar lines to that claimed by the union". 18 As to the question of the nature of any obligation arising from cl35 of the enterprise agreement, his Honour concluded that: ... cl35(3) of the enterprise agreement constituted a term agreed between the parties for the purposes of the agreement and provided enforceable rights. 19 His Honour considered that the title of the clause should be altered to "deduction of union membership fees" and then made a finding as to the appropriate form of the provision concerning union deductions to be inserted in the award to be made by the Commission. In this respect his Honour concluded [at 29]: The second matter relates to the form of the provisions. I do not consider that a clause premised on the operative word 'undertakes' is appropriate for inclusion in an award although it might be included appropriately in an enterprise agreement. I therefore consider that the opening words of the provision should be altered to read "The company shall, upon authorisation, deduct union membership fees ...

20 It should be noted that at the conclusion of the proceedings before the President, and after the President had delivered extempore reasons for decision, the appellant made an application to stay the operation of the award made by the Commission with respect to cl37 of the award so made (that is, the clause dealing with deduction of union fees). His Honour declined to grant the application. In doing so, his Honour gave the following reasons (which appear in the transcript of 9 March 2001): I decline the application made by the respondents for a stay. It is clear from the provision as made that it will not operate forthwith but there are a number of administrative steps largely within the union and amongst its members, a number of matters have been raised with me as to what will happen in the time required, the level of payment and the like.

I consider that the company has not shown relevant prejudice in respect of these matters. These matters essentially are matters of speculation and it will be open to the company, if it renews its application for a stay, to put specific information and material before the Commission as to such matters.

I should also say that a number of matters raised with the Commission in relation to the stay are matters of administrative arrangements which would have been relevant to the form of any provision and none of those matters were raised in the context of the argument as to whether the provision ought to be awarded or the form of it.

Lastly on this issue a basis for the application for the stay was the jurisdictional submissions made by the respondent in opposing the application.

I have already given extempore reasons for judgment for that matter. It is inappropriate to say a great deal more about those but it should be remarked that the submissions essentially had been [based] upon three elements, one of which was not pressed when counsel's attention was drawn to the [definition] of conditions of employment in the definitions in the dictionary to the Act. [Another] matter involved reading out of the Act, the whole of [sub-section 6(2)(i)]. In those circumstances I do not consider it was or is open to me to find that the jurisdictional argument was one that could be described as substantial. Submissions for the Appellant 21 Mr Hatcher contended that the principles to be applied in determining the application for stay are those stated by a Full Bench of the former Industrial Commission of New South Wales in Water Industry Salaried Officers' Union v Professional Officers' Association (NSW) (1987) 22 IR 178. 22 He contended that there was an arguable case for the appeal and in this respect submitted that there were three essential points to the appeal. 23 Firstly, Mr Hatcher contended that the finding that jurisdiction existed to make the subject term of the award was in error. He contended that no jurisdiction was conferred on the Commission to make an award as to the subject provision by virtue of the operation of s6(1) of the Act. It was submitted that this general definition of industrial matters could not confer power having regard to the judgment of the High Court of Australia in Re Alcan Australia Limited; ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96 (wherein the High Court had ruled that an analogous provision in federal legislation did not confer such a power). He submitted, therefore, that the power to award the subject provision depended upon the operation of s6(2) of the Act. It was submitted that upon the proper construction of s6(2), the words "examples of industrial matters" could not be read as meaning "deemed to be" or "shall include". The word "examples" should be read as meaning something akin to 'mere examples' so that, if the power is not conferred by the provisions of s6(1), the provisions of s6(2) did not have the effect of extending the general power so conferred. 24 The second basis for the appeal concerned the decision of the President to alter the form of the provision found in the enterprise agreement by removing the word "undertakes" and inserting the words "the company shall, upon authorisation, deduct union membership fees ...". It was submitted that the amended provision inserted by his Honour was not the form of the agreement or the form of the award sought before Maidment J. It was submitted that the case before his Honour was one which concerned the translation of the provisions of the agreement into an award so far as those provisions were appropriate for insertion in the award. It was submitted that the President's decision indicated an acceptance of the appellant's contention that the terms of the enterprise agreement concerning the deduction of union dues was not appropriate to be inserted in the award and should not, therefore, have been inserted in the award made by his Honour. 25 Thirdly, it was submitted that Mr Justice Maidment had erred in deciding that an award for deduction of union fees should be made in circumstances where the appellant had not given its agreement to the deduction of union fees; such fees had not been deducted for some time and there was only one decision of this Commission awarding the deduction of union dues in quite different circumstances from those applying in this matter. It was not appropriate, therefore, for his Honour to create an enforceable right for the deduction of union dues (noting also the appellant's contention that the existing provision created no such right). 26 As to whether it would be appropriate to grant a stay in the present matter, Mr Hatcher relied upon the affidavit of Geoffrey Noel Gavan. It was submitted that there were a number of administrative steps required to establish the deduction of union dues. Those administrative arrangements are not presently in place. If the appellant was successful in the appeal then the procedures so adopted would need to be reversed and there was no way that the appellant could be restored to its pre-existing position in such an event. Further, the respondent had in place procedures for the collection of union dues and there was no reason why those procedures could not continue to be effective. 27 The appellant filed supplementary submissions in accordance with the leave granted by the Commission to file written submissions as to the principles governing the determination of an application for stay in an appeal. Leave was also granted to the parties to particularise certain conditions proposed for the stay of proceedings (in the case of the appellant) and undertakings (in the case of the respondent) which had been referred to by counsel for the parties during the course of proceedings. Both parties also filed submissions in accordance with the leave, so granted. 28 In its further submissions, the appellant relied upon the principles relevant to the grant of a stay as stated by the President in Re Transport Industry - Waste Collection and Recycling (State) Award (2000) 102 IR 192. In particular, it was submitted that where there was a risk that the appeal will prove abortive or nugatory if the stay is not granted, then the normal exercise of discretion will resolve in the grant of a stay. It was submitted that the appeal by the appellant in the instant case is largely advanced upon the principle that the employer had previously given an undertaking which was no longer given. It was argued that in the absence of such an undertaking there was no obligation to make the deductions prescribed. In the absence of a stay, then an award obligation would be imposed upon the appellant to make those deductions. It was contended that "the appellant could not be put back in the position it is in, even if the appeal be successful". 29 It was also submitted that the decision of the President not to grant a stay contained the qualification that the appellant might provide specific information and material in relation to the administrative steps required in implementing the decision appealed from. In this respect, the appellant had provided such information in the affidavit of Mr Gavan, who was not required for cross-examination. 30 During the course of the proceedings, the Commission raised whether it is appropriate to have regard to whether the appeal was arguable in considering whether or not to grant a stay. In its supplementary submission, the appellant, in response to the leave granted to the parties in this respect, again relied upon a passage in Re Transport Industry - Waste Collection and Recycling (State) Award [at 19] wherein the Commission, in that matter, had referred to a consideration arising from Alexander and others v Cambridge Credit Corporation Ltd (Receivers Appointed) and another (1985) 2 NSWLR 685, as follows: I consider that the following considerations derived from the discussion in the Cambridge Credit case are those relevant to apply in this matter: … (6) Although, generally speaking, it is inappropriate in relation to an application for a stay to speculate as to the appellant's prospects of success, this does not prevent a court, in the context of considering the specific terms of the stay that will appropriately and fairly adjust the interests of the parties, from making a preliminary assessment as to whether the appellant has an arguable case. 31 The submission continued: In the appeal proceedings, the Appellant argues, that it had previously proffered an undertaking to deduct union dues which it is no longer content to proffer. The Respondent, on the other hand, argues, that rather than a mere undertaking, there was an obligation imposed under the agreement, enforceable under the provisions of the Act requiring the employer to deduct. On his Honour's reasoning, in the absence of such an obligation being found to have existed, the appeal would likely succeed.

32 During the course of the proceedings the Commission raised, for the consideration and submissions of the parties, whether it was appropriate, in considering the application for the stay sought, for the Commission to have regard to the notice issued by the appellant of an intention to terminate the enterprise agreement. Further, it was raised with the appellant whether, if a stay was granted, it would be appropriate for conditions to be imposed in relation to the grant of any stay in relation to the termination of the enterprise agreement. The Commission inquired of the appellant its attitude to any stipulation, if available, for the notice of termination to be extinguished or varied. 33 In the supplementary submissions of the appellant, it was contended that an award was no more or less enforceable than the provisions of an enterprise agreement. The appellant invited the Commission to make an order under which the appellant would be given leave, pursuant to s170 of the Act, to amend the notice of termination of the enterprise agreement by inserting in the notice the words "except as to cl35 - Union Recognition". The award made by his Honour would then be stayed in relation to cl37 of the award. 34 It was submitted, in this regard, that the affect of the stay so granted could be to enable the award made by his Honour, the President, to operate except in so far as it concerned union deductions, the subject matter of the appeal. In respect of union deductions, the respondent would have, if its argument be correct, no less entitlements to enforce the provisions than if no stay were granted.

Submissions for the Respondent 35 Mr Shaw relied upon the decision in Water Industry Salaried Officers' Union. He submitted that the appellant does not need to make out a special and exceptional case for a stay but that the mere filing of an appeal did not constitute a basis for the grant of a stay. The onus was upon the applicant for a stay to show why a decision of the Commission should be stayed. 36 It was submitted for the respondent that this application is an extraordinarily weak case for a stay. No proper basis had been made out and the application for a stay before the President had been declined. 37 In reliance on Cambridge Credit (referred to in Water Industry Salaried Officers' Union (at 183)), Mr Shaw submitted that it could not be established in the present case that unless the stay is granted the subject matter of the appeal would be in some way destroyed or eliminated. At its highest, the appellant's case is that it would be put to some administrative inconvenience. 38 As to whether the appeal was arguable, it was submitted for the respondent that the appeal can be "fairly characterised as hopeless". 39 As to the jurisdictional issue raised by the appellant, the respondent relied upon paragraphs 17 - 19 of the decision of the President. The reference to "examples" in s6(2) is equivalent, in the submission of the respondent, to the notion of including certain matters. Any other reading of the sub-section would be to render nugatory and meaningless the words appearing in sub-s6(2). The jurisdictional point is accordingly not arguable. 40 As to the second point of the appeal, it was submitted that the respondent had sought the alteration to the form of the provision of the enterprise agreement concerning union deductions so as to put beyond doubt, and to make clear, the operation of the provision. It was submitted that, even though the President did change the form of the wording of the enterprise agreement, he did not change the effect of the provision as he had found that the provisions of the enterprise agreement created an enforceable obligation. Thus, the President was simply translating the provisions of the agreement into the award in a form that was appropriate for insertion in the award. 41 It was further submitted that the appellant had signed an agreement and had undertaken to do certain things. It comes to the Commission on this appeal indicating that it had made a promise but had then subsequently determined that it would not comply with it. In this respect, the appellant does not come to the Commission with 'clean hands'. It was further submitted that an undertaking embodied in an enterprise agreement would ordinarily be thought to be enforceable. 42 It was also submitted that the appellant had not opposed the making of the award, in principle, before the President, although it had raised a jurisdictional hurdle to the making of an award for union deductions. 43 As to the balance of convenience, Mr Shaw submitted that the award, in relation to union deductions, merely represented a minor administrative inconvenience in terms of setting up a payroll deduction system for union members. It did not demonstrate the sort of loss, damage or irreparable harm that is normally needed to demonstrate the basis for a stay. Although the affidavit of Mr Gavan referred to a "substantial administrative cost", there was no attempt by the appellant to quantify the administrative cost involved. It was submitted that the Commission could take judicial notice of the fact that this process is regularly undertaken by employers in this State. It was also submitted that the appellant operated payroll deductions in other States and if it had complied with the terms of the enterprise agreement, then those payroll deductions would be operating pursuant to the enterprise agreement. 44 Mr Shaw also submitted that no appeal was brought from the decision of Maidment J until the lodgment of the current appeal and that the appeal was out of time. Maidment J did not refer to the question of union deductions per se, but that issue was clearly and expressly raised in the proceedings before him. Thus, when the parties had agreed to translate the provisions of the enterprise agreement from the decision of Maidment J, then absent jurisdictional barriers, the provision for union deductions would have been carried over to the award. 45 The respondent strongly opposed the grant of any stay upon a condition that the notice of termination of the agreement would be amended so as to exclude a reference to the deduction of union dues. It was submitted that this approach was untenable as the appellant regarded the agreement as unenforceable and had not complied with it. Thus, the granting of the condition offered no realistic prospect of the appellant complying with the enterprise agreement. The decision of the President would, accordingly, be rendered nugatory. Further, the grant of the stay on the condition proposed by the appellant would create an unsatisfactory situation, as this approach would simply invite further litigation where the respondent re-agitated the enforceability of the enterprise agreement. 46 As to the stay, the respondent gave an undertaking, through its counsel, that the company may retain an administrative fee in relation to any deduction of union dues. 47 In the supplementary written submissions of the appellant, this undertaking was expressed in the following terms: As to the question of administrative costs by retention of a proportion of the Union fee by the employer, the NUW says:

The employer is allowed to retain a proportion of the Union dues, up to 10% to cover administrative costs. The NUW undertakes that if no stay is granted in this case and the employer complies with the award made by Wright P, then it will agree that the employer may retain up to 10% of the Union fees to cover for administrative expenses. It is submitted that that arrangement would meet any reasonable or legitimate administrative costs. It is standard practice for the NUW throughout NSW to allow an employer to retain up to 10% of the Union fees to cover the administrative expense incurred by the company, and this practice constitutes a complete answer to any suggestion of expense or inconvenience (which we would say in any event is minor) to the company pending the disposition of the appeal. 48 It was also noted by the respondent that prior to the ceasing of payroll deductions in or about June 1998, the appellant adopted the procedure of retaining 5 percent of the fees deducted from the payroll for this purpose.

Relevant Principles 49 The principles relevant to determining an application for stay upon an appeal brought pursuant to s190 of the Act have been recently stated by a Full Bench of the Commission in Court Session in State of New South Wales (Department of Public Works and Services and Department of Education and Training) v WorkCover Authority of New South Wales (Inspector Page) [2000] NSWIRComm 124 [at 15] as follows: The facility of a stay of a challenged decision, in whole or in part, is afforded by s190 of the Industrial Relations Act . The principles on which a stay is allowed have been often stated - in short, a sufficient reason needs to be shown to delay the decision made at first instance from being effective pending the determination of the appeal: see Alexander v Cambridge Credit Corporation Ltd [1985] 2 NSWLR 685 and Water Industry Salaried Officers' Union v Professional Officers' Association of New South Wales [1987] 22 IR 178. As was observed by the Full Commission ( Fisher P, Hungerford J and Buckley CC) of the former Commission in Professional Officers' Association of New South Wales v New South Wales Teachers' Federation [1993] 50 IR 404 at 404: Shortly stated the approach in considering a stay application is that the appellant is required to demonstrate reasons to warrant the exercise of discretion in his favour. Specifically unlike the former position, an appellant is not now required to establish special or exceptional circumstances to warrant the imposition of a stay. The question then is whether the appellant has established or demonstrated reasons supporting an appropriate case for a stay.

In the result in that case, the Full Commission considered the circumstances in terms of the balance of convenience as favouring a stay and said (at p 405) that "if a stay were not granted however then a series of applications drastically affecting the rights of industrial parties to represent the interests of their members or potential members would produce major consequences and may indeed have subsequently to be unravelled". 50 I respectfully adopt this statement of the principles to be applied in the determination of an application for stay on an appeal for the purposes of determining the present application. 51 The question further arises, however, as to whether it is appropriate to consider the prospects for success of the appeal in determining whether to grant an application for a stay. 52 It must be noted, in this respect, that counsel for the appellant and the respondent both put submissions to the Commission as to whether, broadly speaking, the appeal was arguable. Furthermore, both counsel relied upon Water Industry Salaried Officers' Union as properly stating the principles to be applied in the appeal. In that matter, the Commission considered not only whether an appellant might suffer damage which would be irreparable, even if it were to succeed in its appeal, but also whether the appeal was arguable and whether there were serious issues to be determined (although the Full Bench stated that it did not consider the merits of the appeal per se: at 184). 53 This issue was raised with the parties by the Commission having regard to the observations by the Court of Appeal in Cambridge Credit (at 695), wherein the court stated: Secondly, although courts approaching applications for a stay will not generally speculate about the appellant's prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them considering the specific terms of a stay that will be appropriate fairly to adjust the interest of the parties, from making some preliminary assessment about whether the appellant has an arguable case. This consideration is protective of the position of a judgment creditor where it may be plain that an appeal, which does not require leave, has been lodged without any real prospect of success and simply in the hope of gaining a respite against immediate execution upon the judgment. 54 Both the appellant and the respondent were given the opportunity to put further submissions as to this issue. The respondent filed further submissions in this respect. It put the following submission: Although some passages in Alexander v Cambridge Credit point to the difficulties of a court speculating as to the ultimate outcome of an appeal, nonetheless the prospects of the appeal remain relevant and, in particular, where an appeal has a poor prospect of success, then to grant a stay would be, in most circumstances, both futile and unjust to the successful party at first instance. 55 In support of this submission, the respondent relied upon authority to demonstrate that it is appropriate, in considering an application for stay, to consider whether an appellant had a reasonably arguable ground of appeal or there is a serious question to be tried. Reference was made to the decision of Maxwell J in Andrews v John Fairfax & Sons Limited (1979) 2 NSWLR 184 and two decisions of the Federal Court of Australia applying or following Cambridge Credit: Henderson v Amadio Pty Limited (1996) 136 ALR 593 at 595 and Felkro Nominees Pty Limited v Deputy Commissioner of Taxation (Commonwealth) (1996) 21 ACSR 391 at 393 and 396. The respondent also referred to the approach of the High Court of Australia in relation to a stay of execution of judgment (although it was acknowledged that the High Court adhered to a test, in relation to the consideration of a stay application, of 'special and exceptional circumstances') and to the decisions of the President in Green v Brown (2000) 102 IR 30 and Re Transport Industry - Waste Collection and Recycling (State) Award. 56 In Green v Brown [at 18] the Court reached the conclusion that without at least a partial stay there would be a real possibility that the appellant's right to appeal would be rendered nugatory. Having made that finding, it was then considered that two questions need to be addressed:

1. What preliminary assessment should be made as to whether the appellants have an arguable case;

2. Given that the argument concerning the substance of the appeal is "typically and necessarily attenuated", what are the specific terms of the stay that would be appropriate to fairly adjust the interest[s] of the parties. 57 I have earlier referred to the President's consideration of Cambridge Credit in Re Transport Industry - Waste Collection and Recycling (State) Award (see at paragraph 30 of this decision). In that matter, however, his Honour found [at 20]: It is appropriate to form a very preliminary assessment as to the strength of the appellants' case since, in this case, it is not possible otherwise to assess appropriately the relevant considerations as to balance of convenience. On the other hand, it is not appropriate to come to any more definite view as to those prospects. I consider that the applicants do have an arguable case in relation to the appeal. It cannot be said that their case is futile. On the other hand, it is also to be observed that their case is not without some real difficulties. 58 A similar approach was adopted by the Full Bench of the Commission in Court Session in State of New South Wales (Department of Public Works and Services and Department of Education and Training) [at 19], where the Full Bench, in considering a notice of motion to stay the proceedings before the Chief Industrial Magistrate, found: Whilst it may not strictly be necessary to finally consider the nature and extent of our powers on appeal in determining the present motion as such matters will arise when the appeal is heard, it is nevertheless necessary, it seems to us, to at least consider whether a competent appeal is likely to exist in terms of our assessment of the balance of convenience as warranting a stay of the proceedings pending the final determination in the appeal hearing of whether there is indeed a competent appeal. After all, much of the debate before us on the motion was directed to the competency of the appeal and the notice of appeal itself sought an order that the whole of the decisions and orders made by her Worship be stayed pending its determination. It is therefore inevitable in considering a stay of the proceedings to attend to the issue whether the appeal is competent.

59 In my view, the Court of Appeal did not establish, in Cambridge Credit, a rigid or immutable rule or principle against any preliminary consideration of an appellant's prospect for success on appeal, where the appellant seeks a stay of the decision at first instance. Nor did other decisions following Cambridge Credit, such as Green v Brown. For example, the court in Cambridge Credit considered it appropriate that a preliminary assessment be made as to whether an appellant had an arguable case in order for a court to evaluate the specific terms of a stay that would fairly adjust the interests of the parties. 60 Furthermore, the principle against speculating on the prospects for success of an appeal was stated by the court in Cambridge Credit as a 'general principle' which arose because submissions made as to the substance of an appeal in support of an application for a stay were "typically and necessarily attenuated". Thus, the nature and extent of any limitation may vary depending upon the nature of the submissions and the issues raised in support of the application for a stay. 61 It is not appropriate in this decision to speculate upon the entirety of the circumstances which may warrant an examination of the prospects for success of an appeal with respect to an application for a stay. However, it is reasonably clear from the authorities earlier discussed that the Commission may be required to consider the prospects for success of an appeal in certain cases. The Commission may be required to consider such matters where the appeal would in all likelihood be a futility. In this respect, it should be borne in mind that an appeal brought pursuant to s187 of the Act requires the grant of leave for the appeal to proceed (see s188). Furthermore, it may be necessary to consider the prospects of success of the appeal in a preliminary way in order to appropriately consider the balance of convenience or competing rights and interests of the parties in a particular case. 62 Where it is appropriate to assess the prospects for success of an appeal in considering an application for a stay, the assessment so made will be entirely preliminary.

Conclusion 63 The filing of an appeal per se does not provide a sufficient basis for the grant of a stay. The determination of whether a stay will be granted involves an exercise of the discretion of the Commission. Having regard to the discussion of the foregoing principles, the question is whether the appellant has demonstrated a proper basis for the grant of an application for a stay. In other words, the question is whether the applicant for a stay has demonstrated an adequate reason for, or an appropriate case to warrant, the exercise of the Commission's discretion to grant a stay of the decision at first instance. 64 In the exercise of that discretion, the Commission will have regard to a variety of considerations, including the balance of convenience and the competing rights of the parties. In this matter, it is also appropriate to have regard, in a preliminary way, to the appellant's prospects of success. Both counsel argued the prospects of success of the appeal in relation to the application for a stay. The issues in the appeal proper are of narrow compass. It would also appear necessary to consider the prospects of success in order to properly assess the balance of convenience. 65 The assessment of the Commission as to the prospects for success of the appeal must be necessarily preliminary. The Commission has not heard the appellant upon the question of leave to appeal and some grounds of the appeal were not fully developed. In these circumstances, I do not propose to come to any view as to the question of leave and make a purely preliminary assessment as to the strength of the appellant's case on the appeal. 66 In my view, the appellant's contentions as to jurisdictional limitations are attended by some real difficulties. If s6(1) does not confer jurisdiction upon the Commission to make an award for the deduction of union dues (having regard to Re Alcan Australia Limited), then the construction of s6(2)(i) contended for by the appellant (whereby the words "examples of industrial matters" do not extend the scope of s6(1) to include the matters referred to in that sub-section) would have the effect of rendering provisions of s6(2)(i) nugatory. As a matter of statutory construction, such an approach would not usually be preferred. 67 The second ground of the appeal is more arguable, although not without difficulty. In essence, it is contended in this ground of the appeal that the President erred in making the award provision for union deductions by acting in a manner inconsistent with the case posed by the parties at first instance; namely, that the task of the Commission was to translate the provisions of the enterprise agreement into the award so far as they were appropriate for insertion in an award. 68 The President does seem to have concluded that cl35(3) is not in an appropriate form for insertion in an award in so far as the word 'undertakes' is used in the sub-clause. However, and leaving aside jurisdictional arguments for present purposes, it does not follow that his Honour concluded that a provision for the deduction of union dues per se was inappropriate for insertion in an award. The gravamen of the decision at first instance appears to be that the provision did not reflect what was found to be an enforceable obligation. If the enterprise agreement was such as to create an enforceable obligation (and again assuming jurisdiction in the Commission to make the relevant award), then the real objection appears to be that the form, as opposed to the substance of the provision, was inappropriate for insertion in an award. 69 The third ground of the appeal is occasioned by the difficulty that it attacks the exercise of discretion by Maidment J in making an award for union deductions when it would appear the exercise of his Honour's discretion was limited to considering whether or not it was appropriate to make an award in terms of the enterprise agreement. 70 It should also be noted that if the conclusion of the President is correct, namely, the provisions of cl35(iii) of the enterprise agreement are enforceable, then the third ground of the appeal would seem to fall away. Furthermore, and putting aside the second ground of appeal in this respect, if the provisions were not enforceable, the appeal would, in its entirety, concern an attack upon the insertion of a provision in an award which the appellant may elect, on its contention, to apply at its discretion. 71 In these circumstances, and as a purely preliminary assessment, there would appear to be some real difficulties with the grounds of appeal thus far argued by the appellant (leaving aside, for present purposes, the question of leave to appeal which may particularly arise with respect to the second and third grounds). 72 I turn then to consider the balance of convenience. 73 This is not a case where the appeal would be rendered nugatory if a stay were not granted. The refusal of the stay would not in a legal or practical sense prevent the Commission from reversing the award made by the Commission at first instance should the arguments advanced by the appellant on the appeal prove successful. The appellant's position in this respect is not improved, in my view, by its contention that it had earlier given an undertaking which was no longer given. True it is, the revocation of the appellant's undertaking (if such a revocation was available) might be affected temporarily by any refusal to grant a stay of the award made at first instance. However, the appellant would still be, at the end of the day, restored to its position prior to the making of the award if successful on the appeal. The real impact of the refusal of a stay would be the affect on the appellant's administrative arrangements (namely, the cost and inconvenience of altering the earlier arrangements). 74 When considered in this light, the balance of convenience is not strongly in favour of the appellant. Further, the administrative costs occasioned by the appellant would be, at least to some extent, offset by the undertaking offered to the Commission by the respondent on the appeal (in relation to retaining a proportion of any union fees deducted). No exact quantification of administrative costs was given by Mr Gavan in evidence for the appellant, although such costs were described as "significant". The undertaking by the respondent, which the Commission understands to be an undertaking to the Commission as part of the stay proceedings, would offset those costs. The appellant apparently earlier adopted a procedure of retaining 5 percent of fees during the time in which it provided for union deductions under the agreement. The respondent now proposes a deduction of 10 percent. 75 The appellant's position as to the balance of convenience is, of course, largely untenable if the enterprise agreement was enforceable with respect to the deduction of union dues. If the enterprise agreement is not enforceable then, upon the contention of the appellant, the enterprise agreement only records an undertaking given by it to the respondent. The Commission, as presently constituted, does not have evidence before it as to the basis upon which the appellant decided that the undertaking would not be adhered to by the appellant. Hence, the Commission is not in a position to deal with the submissions made by Mr Shaw that the appellant had not approached the Commission on the application for stay with 'clean hands'. Such a consideration would ordinarily, however, be relevant to the consideration of the balance of convenience. 76 One further matter requires attention. As part of its application for a stay, the appellant proposed to amend the notice of termination of the enterprise agreement so as to permit the continuation of the operation of cl35. However, the appellant does so in circumstances where it contends that the enterprise agreement has no legal effect and it will give no operation to it. This may diminish the significance of the condition proffered by the appellant, although it is true that the order proposed by the appellant would return the parties to their respective positions prior to the decision of the President. However, as Mr Shaw correctly submitted in my view, such an outcome would be undesirable if it merely established a position in which the parties would litigate upon their respective positions as to the operation of the enterprise agreement. In any event, the appellant relied upon the provisions of s170 of the Act in order to permit it to amend the notice of termination so as to give effect to the condition of the stay proffered by it. I have real doubts as to whether the provisions of s170 will permit an order being made in the terms proposed by the appellant. 77 Having regard to the nature of the appellant's grounds of appeal and the aforementioned consideration of the balance of convenience, I consider that the application for a stay should be refused. 78 In all these circumstances, the application for a stay of the decision and the award made by Wright J, President, on 9 March 2001 is declined. The Commission confirms the directions made by it on 6 April 2001. The matter shall be set down for hearing at a date to be confirmed.

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