Alexander v Cambridge Credit Corporation Ltd

LEGISLATION CITED : Industrial Relations Act 1996 s 11 s 190 Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 Butchering (Wholesale) Award [1911] AR (NSW] 245 Green v Brown [2000] NSWIRComm 222 Laundry Emloyees (State) Award (1993) 49 IR 91 CASES CITED : Plumbers and Gasfitters (State) Conciliation Committee [1936] AR (NSW) 341 Special Constables Award [1956] AR (NSW) 880 State Wage Case 2000 (2000) 97 IR 93 Taxi Industry (Contract Drivers) Contract Determination 1995 - Appeal by Haraszti (unreported, Full Bench, 27 August 1996, noted at (1996) 40 AILR Rep. 5 - 105) Water Indusry Salaried Officers' Union v Professional Officers' Association (NSW) (1987) 22 IR 178 HEARING DATES: 11/15/2000 DATE OF JUDGMENT: 11/27/2000

APPELLANTS Mr P M Kite SC with Mr A T Britt of Counsel Local Government Association of New South Wales and the Shires Association of New South Wales

FIRST RESPONDENT Mr A A Hatcher of Counsel Transport Workers' Union of Australia, New South Wales Branch LEGAL REPRESENTATIVES: SECOND RESPONDENT Mr M Baroni New South Wales Road Transport Association

THIRD RESPONDENT Mr M J B Creswell Waste Contractors and Recyclers Association of New South Wales

TRANSPORT INDUSTRY - WASTE COLLECTION AND RECYCLING (STATE) AWARD

Application for leave to appeal and appeal by the Local Government Association of New South Wales and Shires Association of New South Wales against a decision of Commissioner Connor given on 24 October 2000 in matters numbered IRC99/154 and IRC99/155; and application for stay.

1 On 7 November 2000 the Local Government Association of New South Wales and the Shires Association of New South Wales (the appellants) lodged an application for leave to appeal and notice of appeal against a decision of Connor C delivered on 24 October 2000. The application contained a stay application in the following terms: 10. A stay is sought of the proceedings before Commissioner Connor in Matter No IRC 154 and 155 of 1999 because if the appeal is successful and such a stay is not granted: (a) The proposed award may have been made prior to the determination of the Appeal; (b) The Appeal will be nugatory because the proposed award may have been made by the time the Appeal is determined; (c) The appellants will in the event the proposed Award is made prior to the determination of the Appeal be deprived of their interests to be heard as a party in relation to the proposed award prior to its making. 2 The application for a stay came before the Commission for hearing on 15 November 2000 when Mr P M Kite SC and Mr A T Britt of Counsel appeared for the appellants and Mr A A Hatcher of Counsel, Mr M Baroni and Mr M J B Creswell respectively appeared for the respondents. The respondents were, in the order named on the application for leave to appeal, the Transport Workers' Union of Australia, New South Wales Branch, the New South Wales Road Transport Association and the Waste Contractors and Recyclers Association of New South Wales. Senior counsel for the appellants advised the Commission that subsequent to the filing of his clients' application for leave the applications before Connor C had again been dealt with by him on 8 November 2000 (that date having been specified at the conclusion of the commissioner's decision of 24 October as the date when the matter would be dealt with to finality) and the commissioner had published a further decision on Friday 10 November 2000 in which he concluded: I believe that I should give effect to the consent position of the TWU, the RTA and WCRA - the parties to the proposed State waste collection award - and make that State award. I consider that it is in the public interest to do so for the reasons I outlined in my preliminary decision of Tuesday, 24 October, 2000 and to which I have again referred in this decision.

The proceedings before Connor C 3 In order to understand the submissions made by the appellants and respondents in relation to the stay application on 15 November it is necessary to refer to the issues before Connor C and the way in which he dealt with them. There were two matters before the commissioner. The first, matter number IRC154 OF 1999, was an application by the first respondent for a new Transport Industry - Waste Collection and Recycling (State) Award. The second, which was numbered IRC155 of 1999, related to a notice of an award review pursuant to s 19 of the Industrial Relations Act 1996 in relation to the same award. The application had been unresolved for some period of time having initially been listed before Connor C in February last year and stood over generally. The matter was listed for further mention on 5 September 2000 and then programmed for arbitration and determination of the preliminary issues on 16 October 2000. The s 19 review proceedings had been the subject of a number of mentions and conferences between 9 February 1999 and 5 September 2000. 4 The commissioner had been advised on 5 September that there was an agreement between the union and the employer organisations, being those parties who are the respondents in the present proceedings, but that the agreement did not extend to the appellants in the present proceedings who objected to the agreement being embodied in an award of the Commission. The advocate for the appellants submitted that those organisations were parties principal to the proposed new award or, alternatively, had a right to intervene in the proceedings. The first respondent submitted that the appellants were not parties to the award and should not be granted leave to intervene. The second respondent supported the submissions of the union and the third respondent made no submissions on these issues. 5 This question as to who was a party to the award was not merely a theoretical consideration because of the terms of the State Wage Case principles relevant to the proceedings before Connor C. The particularly relevant principles were principles 2(e) and 10. Principle 10 is entitled "Special Case" and is in the following terms: Except for the flow on of test case provisions, any claim for increases in wages and salaries, or changes in conditions in awards, other than those allowed elsewhere in the principles, will be processed as a special case before a Full Bench of the Commission, unless otherwise allocated by the President. This principle does not apply to applications for awards consented to by the parties, which will be dealt with in the terms of the Act, or to enterprise arrangements, which will be dealt with in accordance with the Enterprise Arrangements principle.

Principle 2 is entitled "When an Award may be Varied or Another Award Made Without the Claim Requiring Consideration as a Special Case" and paragraph (e) of that principle provides that one of the circumstances in which an award may, on application, be varied or another award made without requiring consideration as a Special Case is "where the application is consented to by the parties": see State Wage Case 2000 (2000) 97 IR 93 at 117 and 120 - 121. 6 The evidence at first instance demonstrated that the appellants had been involved on an extensive basis in proceedings before the Commission and before conciliation committees in relation to the subject award for many decades, even to the extent of having nominating rights as to members of the relevant conciliation committee under the Industrial Arbitration Act 1940. However, it was common ground both before Connor C and in relation to the stay application that neither the appellants, nor their members (who were local government bodies) employed persons under the award. To the extent that they employ persons carrying out work of the kind to which the award relates, such persons are employed under the relevant local government award. 7 The preliminary question thus posed to the commissioner was whether the appellants were, for the purposes of principle 2(e) and principle 10 of the State Wage Case principles, "parties". The determination of this question would have the effect of determining whether the application could be dealt with by the commissioner pursuant to principle 2 or had to be referred to the President of the Commission pursuant to principle 10 for the determination of whether it should, as the principle presumptively requires, be determined by a Full Bench, or otherwise allocated. The preliminary question thus posed raises immediately the question whether the reference to "the parties" in principle 2(e) is a reference to parties to the award or to the notion of being a "party" in some other sense, such as being a party to the proceedings. The latter formulation in turn depends on the proposition that a person or organisation may be a party to award proceedings although not a party to the award itself. 8 The preliminary question was the subject of the initial hearing before the commissioner on 16 October 2000 and the subject of his first decision delivered on 24 October 2000. In that decision Connor C referred to a number of earlier decisions, including the State Wage Case 2000 , the decision of a Full Bench of the Commission ( Cahill V-P, Peterson J and Redman C) in Re Taxi Industry (Contract Drivers) Contract Determination 1995 - Appeal by Haraszti (unreported, Matter No IRC96/1350, 27 August 1996, noted at (1996) 40 AILR Rep. 5 - 105), Butchering (Wholesale) Award [1911] AR (NSW) 245 at 247, Re Plumbers and Gasfitters (State) Conciliation Committee [1936] AR (NSW) 341 and Laundry Employees (State) Award (1993) 49 IR 91. He also referred to a submission made by the first and second respondents which relied upon the terms of s 11(4) of the Act which provides: 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 sufficient interest in the proposed award. 9 The commissioner's decision dealt with the matter in essentially two ways. First, as to the issue whether the appellants could be a party to the award and secondly, whether it was appropriate to grant them leave to intervene. As to the first issue, the commissioner particularly relied on the decisions in the Haraszti appeal and in the Laundry Employees case. As to the second issue, he relied on the judgment in the Laundry Employees case. In relation to the issue of intervention, reference was also made to the importance of the public interest in the operations or workings of the Commission under the Act. Connor C concluded by emphasising the following passage from the judgment in the Laundry Employees case (at 99 - 100): Such an interest is self evident in a case where the proceedings concern an award which is, or would be, binding upon members of the organisation. In other cases, the right of an organisation to appear in proceedings depends upon it being able to demonstrate a sufficient interest in the proceedings and their outcome. Where the interest is not direct but indirect it may nevertheless be such as to warrant the grant of leave to an organisation to intervene and appear in the proceedings.

and concluded: I therefore conclude that the LGA and the Shires Association are not parties to the proposed State waste collection award but may intervene in the proceedings. I propose to adjourn these proceedings for a hearing at 10.00am on Wednesday, 8 November, 2000 to bring the TWU application and the s 19 review to a conclusion at that time. 10 The second phase of the substantive proceedings before the commissioner was heard on 8 November and the subject of the commissioner's second decision on 10 November 2000. In the second decision the commissioner reviewed the history of the proceedings and referred to the nature of the agreement between the respondents to the present appeal and stay application which he described in the following way: The 10% wage increase in the TWU application is not now opposed by the New South Wales Road Transport Association and the Waste Contractors and Recyclers Association. It is based on costs offsets which appear to me to reflect developments in the transport industry generally [the Transport Industry (State) Award Case (2000) 95 IR 232] - the engagement of casuals, weekend work as ordinary time, clarification of union picnic day provisions, induction training and safety requirements relating to sunlight. The proposed new State waste collection award has also been drafted with the s 19 review in mind. Current wage fixation principles provide considerable flexibility in processing State awards made by consent of the parties. 11 The commissioner then referred to the fact that the appellants did not agree to the wage increase and to the evidence tendered and relied upon by them. He also indicated that he considered that the earlier rulings made by him, as to the non-party status of the appellants and their intervention resulted in the consideration that, as interveners only, the appellants did not have the same right to participate in the hearing for the new award as did the parties to it; referring to the well known decision in Re Special Constables Award [1956] AR (NSW) 880 at 885 - 886. The commissioner also records the submissions made to him by the appellants that they "propose to appeal [his] preliminary decision … and will be seeking a stay of [his] decision". He then observed that "[no] stay has been granted to date however. Mr Glover [the advocate for the appellants] submitted that therefore I should adjourn these proceedings to await the outcome of the appeal." The commissioner also adverted to the substantive submissions of the appellants. The commissioner indicated that he intended to continue with what was proposed in his preliminary decision. That is, to bring the application for a new award and the s 19 review to a conclusion, holding that "any appeal may therefore proceed from that point. As I understand the position, the current approach for all courts and tribunals is for all issues associated with a matter to be disposed of at first instance prior to the commencement of the appeal process." 12 As to the appellants' alternative submission that the commissioner should as a matter of discretion refer the application for consideration as a Special Case, the commissioner ruled that he would not do so in the light of the objections of the respondents to such a course and in light of the fact that the parties to the proposed new award as he had "defined them in [his] preliminary decision" have consented to the terms of that award and that he should act on that consent. In the final part of his decision, which it is appropriate to set out in full, the commissioner adverted to two major considerations. The first was the nature of the agreement reached between the parties and the terms of the agreement not only as to wage increases but also as to new roster arrangements and other alterations to working conditions under the award which were referred to as a "reform process". The second matter referred to was the likely or possible impact on contracts between local government councils and employers under the relevant award and the effect of the increased wage rates in the new waste collection award on the costs imposed on councils by their contracts. The commissioner's conclusions were in these terms: In a written statement which formed the basis of Mr Dene's evidence, he spoke of the "… significant changes which are of great benefit to employers in the industry …". He referred specifically to the new roster arrangements which permitted ordinary work on weekends, commenting that: "… the ability to roster employees on a Saturday as an ordinary day is of right and the ability to roster the employees to work Sundays as part of the ordinary hours is by agreement. This is totally consistent with the Transport Industry (State) Award which is a new award made by the Full Bench of the Commission in April this year …"

Mr Forno commented on his concerns that the defeat of the agreement the TWU had made with the RTA and the WCRA may destroy the reform process which had been put in place, viz: "… The union has only been able to obtain the approval of its membership by presenting the agreement as a complete package. If the agreement as a whole was varied this would stymie further reform agreements between the union and the employers and the tenuous confidence the reform process has with workers in the domestic waste and recycling industry would disappear …"

It is stating the obvious that wage increases for employees of contractors for garbage services for local government would be likely to ultimately flow on to local government authorities through the "rise and fall" provisions in the contracts those local government authorities have with individual contractors. In that sense, it is an outcome of the contracts and not the State waste collection award. Ultimately, I see the position of the LGA and the Shires Association as I described them (at p.7), ie as: "… no different from any consumer seeking goods or services. If a local government authority is prepared to out-source its garbage services, it must be prepared to accept that the contractors it engages are entitled to negotiate in their own way without unnecessary interference …"

Mr Glover pointed out that since council rates are pegged until August, 2001 by virtue of s 533 of the 1993 Local Government Act, it means that council must meet the additional costs flowing from the TWU application until that time in some other way, eg reduction of existing services. But over a period of two years it would be anticipated that some movement in wages of employees would occur and local government authorities should have already budgeted for such movement in the wages of the contractors over that time.

I believe that I should give effect to the consent position of the TWU, the RTA and WCRA - the parties to the proposed State waste collection award - and make that State award. I consider that it is in the public interest to do so for the reasons I outlined in my preliminary decision of Tuesday, 24 October, 2000 and to which I have again referred in this decision. Submissions as to the stay application 13 When the hearing of the stay commenced, senior counsel for the appellants indicated that, since the notice of appeal and the application for a stay had been filed prior to the second decision of the commissioner, an amended notice of appeal would be filed to deal with the further decision. The appellants nevertheless pressed for a stay of so much of the decision and award of the commissioner which provided an increase in wages in excess of five per cent. In other respects the award is to remain in place (the details of the award made are set out in paragraph [10] above). The bases upon which the stay was pressed were, first, that the evidence before Connor C demonstrated that the appellants had a substantial history of activity in relation to the award and proceedings concerning it including proceedings before the relevant conciliation committee in respect of which the appellants also had nominating rights. Secondly, that generally speaking, the relevant contracts between garbage or waste contractors and local government councils would result in the award increases granted flowing to those councils so that in a real and practical sense the appellants and their employer members had a substantial interest in the award; those considerations coupled with the historical situation referred to, lead to them being properly considered as parties for the purposes of the relevant wage fixing principles. It was submitted that the commissioner had erred in his conclusion that the appellants were not "parties" for the purposes of the relevant principles and also in terms of the Act. In any event, the issues raised by the appeals involved significant questions as to the construction of the Act and the operation of the State Wage Case principles particularly in relation to the important area of consent matters and whether matters the subject of consent of some of the parties could proceed without consideration of the Special Case principle. 14 It was also submitted that the balance of convenience favours the grant of the stay. The stay, if granted, would result in an award in terms of what was common ground between all of the parties at first instance, including the appellants, and this would enable the hearing of the appeal to proceed without the difficulties referred to as to the situation of the local government bodies and their contractual arrangements and the problems presented to them by the commissioner's award. 15 During the course of the hearing of the stay, the Commission advised the parties that an expedited hearing of the appeal could take place on 7 December 2000 subject to the parties' availability and their consent to appropriate directions as to the preparation of the matter for the expedited hearing. 16 The respondents objected to the stay being granted. They also relied substantially on considerations as to the balance of convenience. Although it is appropriate for the Commission to acknowledge the helpful way in which all of the parties to the stay application made their comprehensive and succinct submissions, it is nevertheless sufficient to refer to the respondents' submissions by reference to those made by counsel for the first respondent. In summary, his submissions involved four points. First, neither the appellant organisations nor their members are bound by the award in question. The award has no direct legal effect on the appellants or their members. It imposes no obligation upon the appellants and their members to do anything such as pay wages or apply conditions of employment. Secondly, the organisations and organisation members upon which the award operates and impose obligations are the respondents and their members. On the employee and union side, the first respondent, and on the employer side the second and third respondents. All of the respondents consented to the making of the award. That is, all of the employers bound by the award consented to it and consented to paying the ten per cent wage increase from the operative date which was sought and agreed. Thirdly, there were offsets included in the award made by consent and all of the matters contained in the award were the subject of a packaged consent arrangement between the parties. Accordingly, and fourthly, it was submitted that, in terms of balance of convenience, the present situation is one where, on the one hand, the employers who are party to the award have consented to pay the ten per cent wage increase and, on the other hand, the union and its members have consented to the various offsets in consideration of the wage increase. It would therefore be extraordinary to stay the operation of the award in a situation where no organisation bound by the award seeks a stay of it and where all parties who appeared and were bound by it consented to the operation of the award that was made and opposed the stay. 17 It was submitted that everything put to the Commission as to the stay related to commercial and not industrial considerations as to the interests of non-parties to the proceedings and to the award. Such matters did not involve a proper basis for the grant of the stay. The balance of convenience dictates against the course proposed by the appellants as the employees under the award would bear the burden of the stay in terms of reduced wages situation whilst they would have to provide to the employers party to the award all of the offsets without any guarantee they will ultimately have the benefit of having wage increases that attach to those offsets. Consideration and conclusion 18 The principles relevant to the grant of a stay pending the hearing of an appeal against a decision of a member of the Commission pursuant to s 190 of the Act are now well settled. See, for example, the judgment of the Court of Appeal in Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685, as adopted by the Industrial Commission of New South Wales in Court Session in Water Industry Salaried Officers' Union v Professional Officers' Association (NSW) (1987) 22 IR 178. See also the recent judgment in Green v Brown [2000] NSWIRComm 222. It is clear that special circumstances are not required for the grant of a stay, it being sufficient that the applicant demonstrates a reason or an appropriate case to warrant the relevant exercise of discretion. Although that very limited criterion has been established here, nevertheless, as the authorities make clear, that consideration may be merely the initial consideration as to the grant of the stay. In other words, should that limited criterion or test not be satisfied then the stay application fails in limine . However, should it be satisfied then there may very well be other factors which require consideration. These considerations are helpfully set out in the detailed discussion of the principles set out in the judgment of the Court of Appeal in the first case referred to (at 694 - 695) in the following terms: There are other principles to be kept in mind. The onus is upon the applicant to demonstrate a proper basis for a stay that will be fair to all parties: Trlin v Marac Finance Australia Ltd (unreported, Court of Appeal, 4 March 1985). The mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears: see Supreme Court Rules , Pt 51, r 10; Waller v Todorovic (unreported, Court of Appeal, 21 December 1979). The Court has a discretion whether or not to grant the stay and, if so, as to the terms that would be fair. In the exercise of its discretion, the Court will weigh considerations such as the balance of convenience and the competing rights of the parties before it: Attorney-General v Emerson (1889) 24 QBD 56. Where there is a risk that if a stay is granted, the assets of the applicant will be disposed of, the court may, in the exercise of its discretion, refuse to grant a stay: cf Clyne v Deputy Commissioner of Taxation (1982) 56 ALJR 857. Sometimes as a condition of the grant of a stay, where funds are available, a court will impose on the applicant the payment of the whole, or part, to the judgment creditor: Andrews v John Fairfax & Sons Ltd [1979] 2 NSWLR 184 … Two further principles can be mentioned. The first is that where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay … Thus, where it is apparent that unless a stay is granted an appeal will be rendered nugatory, this will be a substantial factor in favour of the grant of a stay … 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 the 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. 19 I consider that the following considerations derived from the discussion in the Cambridge Credit case are those relevant to apply in this matter: (1) The mere filing of an appeal will not of itself provide a reason or demonstrate an appropriate case nor will it discharge the onus which the applicant bears. (2) A court has an appropriate discretion whether or not to grant the stay and as to the terms that would be fair if a stay be granted. (3) The onus is upon the applicant for a stay to demonstrate a proper basis for a stay that will be fair to all the parties. (4) In the exercise of its discretion all considerations including the balance of convenience and the competing rights of the parties need to be considered and weighed. (5) Where there is a risk that the appeal will prove abortive or nugatory if the stay is not granted then the normal exercise of discretion will result in the grant of a stay. (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. 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. 21 However, it cannot be said that the appeal would be rendered nugatory if a stay is not granted. The respondents, particularly and perhaps most importantly the first respondent, accepted that the refusal of the stay would not in a legal or a practical sense stand in the way of the Commission reversing the award made by the commissioner should the arguments advanced by the appellants prove successful. The practical effect of the appellants being successful in their appeal is that the whole of the award made by the commissioner would be set aside. The two crucial elements of the award were the ten per cent wage increase and the "offsets" agreed to by the union as part of the "package" agreement between the respondents. If the appeal succeeded both elements would have to be the subject of entire reconsideration in the context of proceedings under the Special Case principle. The lopsided basis proposed by the appellants for the grant of the stay illustrates the difficulties in it being seen as a basis that will be fair to all parties even on a temporary basis; and this is particularly so when it is noted the hearing of the appeal has been expedited and will be heard in a period approximately three weeks from the date of the hearing of the stay application. Although it has been held that the appellants do have an arguable case nevertheless it is also not without difficulties of some significance. It is difficult in those circumstances to conclude that the grant of the stay of part of one side of an overall arrangement and agreement reached between all organisations which the commissioner held were the only possible parties to the award, could be considered fair to all parties. The stay application must therefore be declined. Orders 22 At the conclusion of the hearing on 15 November 2000 the Commission indicated that the stay would in due course be formally declined and a broad outline was given as to the basis upon which that conclusion had been reached. It was also stated that the Commission would, as soon as possible, publish reasons as to the stay application which would include formal orders. At the time, and as referred to earlier, directions were given for the setting down the appeal for hearing and for preparation of the hearing of the appeal. The decision now delivered provides the reasons for the decision earlier intimated. It is therefore appropriate to make the following orders: 1. The application made by the appellants for a stay of the award made by Connor C on 10 November 2000 is declined. 2. The directions made on 15 November 2000 as to the hearing of the appeal at 10.30 am on Thursday 7 December 2000, and as to the preliminary steps in relation to the preparation for the hearing of the appeal, are confirmed. 3. Liberty to apply upon reasonable notice.

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