Printed with the authority of the Australian Industrial Relations Commission

Workplace Relations Act 1996

SENIOR DEPUTY PRESIDENT HARRISON SYDNEY, 9 MARCH 2000

[1] This matter was listed for hearing before me on 19 January 2000. The issue was whether, under s 170CFA(8) of the Workplace Relations Act 1996 ("the Act"), I should accept an election to proceed to arbitration which election was lodged out of time. I announced at the end of the hearing that I had formed the view that it was appropriate to accept the election. These are my reasons for decision.

[2] At the hearing before me the applicant was represented by Mr Ginters of counsel and the respondent, Rail Services Australia (RSA) was represented by Mr Britt of counsel. Each had filed an affidavit of a witness and also a written outline of submissions.

[3] A short summary of matters of relevance leading up to the hearing should be made. The originating application was lodged on 5 August 1999. In that application the contact for the applicant is recorded to be both APESMA and his solicitors, Geoffrey Edwards and Co (Mr Hart). In response to the question as to where the parties wanted notices from the Commission sent the box "solicitor or union in 18" was ticked. In answer to question 18 both APESMA and Geoffrey Edwards and Co were referred to.

[4] The matter was listed for a conciliation conference before Mr Peterson and a copy of the notice of listing was sent to both APESMA and Geoffrey Edwards and Co. There is no transcript of that conciliation but it appears that at least Mr Hart from Geoffrey Edwards and Co. appeared and instructed counsel also. Subsequently correspondence was forwarded to Mr Peterson from Geoffrey Edwards and Co. It referred to the conciliation conference and advised that the matter had not been able to be resolved and asked the matter be progressed to the next stage.

[5] On 7 December 1999 Commissioner Larkin signed a certificate pursuant to s 170CF. It is not apparent from the Commission's file when that certificate was forwarded to the representatives of the applicant and the respondent nor to whom the certificate was forwarded i.e. whether in the case of the applicant it was APESMA or Geoffrey Edwards and Co or both. No election having been received Commissioner Larkin, by way of a document dated 22 December 1999, indicated that "The matter is taken to have been discontinued under s 170CFA(7)".

[6] The Commission's file also reflects that on 24 December 1999 the associate to Commissioner Larkin received a telephone call from a Ms Borg from Geoffrey Edwards and Co. inquiring as to whether Commissioner Larkin had issued a certificate pursuant to s 170CF. The file note also records that Mr Davies from Sparke Helmore, solicitors for the respondent was also contacted on that day and he advised that he had received a copy of the certificate "a day or two after the conference".

[7] I should indicate that it would appear likely that the failure to note in the file details of the day upon which the s 170CF certificate was sent to the parties and the persons to whom it was addressed arose at a time when Commissioner Larkin's permanent associate was on a period of leave and a practice normally observed was unfortunately overlooked. There is therefore nothing on the Commission's file that would assist with resolving the question as to whether the certificate was sent on the day that it was signed and whether it was forwarded to APESMA and Geoffrey Edwards and Co or either of them.

[8] In his affidavit Mr Hart refers to an attendance before Commissioner Larkin on 7 December 1999. On that occasion he had attended and had instructed counsel. He said that at the conclusion of the conference Commissioner Larkin had said that she would issue a certificate. By 24 December Mr Hart was concerned that no certificate had been received by him and that his office was scheduled to close at 12.00 noon on that day and would not reopen until 4 January 2000. He asked his secretary, Ms Borg, to telephone Commissioner Larkin's associate to inquire as to whether a certificate would issue in late December or early January. Later on that day he received documents from the Commission including a file note from Commissioner Larkin's associate (which I have earlier referred to) and a copy of the s.170CF certificate dated 7 December 1999. Mr Hart asked Ms Borg to telephone the office of APESMA to inquire as to whether they had received a copy of the certificate. The industrial officer concerned who had the carriage of the matter up until then had apparently left the union and Mr Hart was informed that the union was unable to locate any documents which had been received from the Commission.

[9] On 29 December 1999 Mr Hart signed a notice of election to proceed to arbitration. In that part of the notice that relates to elections that are lodged more than 7 days after the date of the issue of the s 170CF certificate he indicated that the certificate of Commissioner Larkin had not been received until 24 December when a copy had been faxed to him.

[10] Section 170CFA(8) is in the following terms :

"The Commission may accept an election that is lodged out of time if the Commission considers that it would be unfair not to do so, and, if the Commission accepts such an election, the original application is taken not to have been discontinued in spite of subsection (7)".

The test is the same as that contained in s 170CE(8) in relation to originating applications that are lodged out of time. Based on the affidavit of Mr Hart and his evidence I was readily persuaded that this was a case in which it was appropriate to accept the election that had been lodged out of time. Based on the facts in this case it would have been unfair not to have done so. Up until the time of this hearing Mr Hart had been involved at each procedural step. It is a case in which, at an early stage, counsel had also been involved. The file reflects keenly contested issues between the parties. There was little basis for challenging the veracity of Mr Hart's statement that he did not receive a copy of the s 170CF certificate until 24 December1999.

[11] As I have indicated earlier there is nothing on the Commissions file to assist with whether the certificate was forwarded to APESMA. I am unable to make any assumption one way or the other as to whether it was. I therefore do not propose to consider what my decision would be had been had it been established that a copy had been sent to APESMA.

[12] I was persuaded by the explanation given by Mr Hart for the delay in lodging the election to proceed to arbitration. The applicant's solicitors had at all times since this application was lodged diligently pursued the matter and the file reflects keenness on both sides to litigate issues. Assuming it is relevant to do so I would find that the applicant's case is not without merit. I do so based on the annexures to his originating application. I was not able to identify any particular prejudice to the employer that will be occasioned by my extending the time for lodging the election to proceed to arbitration. There are no other reasons that persuade me that it would be inappropriate to extend the time for election.

[13] The time for lodging the notice to proceed to arbitration is extended to 30 December 1999. One consequence of this decision is that the application is no longer deemed to have been discontinued. It will now be assigned to a member of the Commission for arbitration.

Termination of employment - unfair dismissal - extension of time - notice of election to proceed to arbitration lodged out of time - nothing on file to indicate when s170CF certificate forwarded to applicant's representatives - notice lodged after representative made enquiries at AIRC as to whether s170CF certificate had issued and was informed it had - held - appropriate to accept notice that had been lodged out of time - would be unfair to applicant not to do so - time for lodging notice extended - file assigned to member of Commission for arbitration.

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