Asahi Diamond Industrial Australia Pty Limited v Automotive Food Metals and Engineering Union

LEGAL REPRESENTATIVES: RESPONDENT Mr J V Murphy of counsel Solicitor: Mr I V Knight Crown Solicitor (Mr J Walsh)

INDUSTR IAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: WRIGHT J, President WALTON J, Vice-President CONNOR C Thursday 31 August 2000 Matter No IRC 6326 of 1999 NEW SOUTH WALES TEACHERS FEDERATION AND NEW SOUTH WALES DEPARTMENT OF EDUCATION AND TRAINING

Application by the New South Wales Teachers Federation for leave to appeal and appeal against a statement and direction of Justice Schmidt given on 16 November 1999 in Matter No IRC 6308 of 1999.

DECISION OF THE COMMISSION [2000] NSWIRComm 169

1 These proceedings involve an application by the New South Wales Teachers Federation (the appellant) for leave to appeal and, if leave be granted, an appeal against a statement and direction of Schmidt J given on 16 November 1999. 2 The application for leave to appeal was urgently heard, in conjunction with the appellant's application for a stay of the direction made by her Honour on 30 November 1999. At the conclusion of the hearing, the Full Bench made orders refusing the stay sought, refusing the application for leave to appeal, and dismissing the appeal. At the time, the Full Bench delivered a statement, including formal orders, in the following terms: We today heard the submissions by the appellant, the New South Wales Teachers Federation (the Federation), in relation to its application for leave to appeal against a Statement and Direction of Justice Schmidt made on 16 November 1999 in which her Honour made certain directions concerning the current campaign of industrial action by the Federation. We have also heard, in connection with the arguments on leave to appeal, the Federation's related arguments seeking a stay of the directions made by her Honour. We have carefully considered the detailed submissions put before the Full Bench by the appellant both as to leave to appeal and as to the stay issue. We have also considered the submissions made by the respondent, the Department of Education and Training. We have concluded that there is no basis to grant leave to appeal in this matter. Accordingly it follows that the stay application should be refused. As the parties to these proceedings would be well aware, the usual practice of Full Benches of the Commission is not to give reasons for refusing leave to appeal. Nevertheless, we intend, in due course, to provide reasons for this decision. However, we consider a greater priority is the resolution of the present industrial dispute in the education system of this State which we note is set down for conciliation before Deputy President Sams later this afternoon. We also note in that regard that there are further proceedings before a Full Bench of the Commission in relation to related award proceedings and the underlying dispute in the education system, and, again, that matter should also be given priority by the Commission. In any event, in the light of the priority that should be given to the resolution of the present industrial disputation, we do not intend to provide reasons for our decision in this matter until after that dispute has been resolved. Accordingly, we make the following orders in relation to the present proceedings and will publish our reasons in due course: 1. Application for stay of the directions of Schmidt J of 16 November 1999 refused. 2. Application for leave to appeal refused. 3. Appeal dismissed. 3 It will be observed that the Full Bench said that it did not intend to provide reasons for the decision made in this matter until the then present industrial disputation had been resolved. This has now occurred and we now provide in short form the reasons for the decision made at the time. As we earlier indicated, and as the parties to the proceedings would be well aware, the usual practice of Full Benches of the Commission is not to give reasons for refusing leave to appeal. Accordingly, when, as in this case, reasons are to be given it would normally be appropriate for the reasons to be provided in short form. 4 The background to this matter is as follows. On 16 November 1999, Schmidt J issued a document entitled "Statement and Direction" which, at its conclusion, set out a direction or directions in the following terms:

In these circumstances, I have no hesitation in making the following direction: 1. That the Teachers Federation, its officers, employees and members take all steps available to them to bring about an immediate cessation of all industrial action. 2. That there be no further industrial action taken while the proceedings before the Full Bench in matter number IRC 6099 of 1999 continues. 3. That the Executive of the Federation which is meeting today, take all steps reasonably available to it to disseminate this direction to its members, including the immediate posting of this direction on its internet web page. To that end a copy of the direction is provided to the parties in disk form. 4. That the Department take similar steps available to it, to disseminate this direction. 5. That the meeting between the parties, scheduled for tomorrow at 9 am, proceed in accordance with the Full Bench's direction and that the parties there consider what each other advances, in accordance with the requirements of s 134(4) of the Act. This includes that the parties bargain with each other in good faith. That approach requires that both parties attend agreed meetings, that they comply with agreed or reasonable negotiating procedures and that they disclose relevant information to each other for the purposes of the negotiations. 5 Later, on the same day, 16 November 1999, the appellant filed an application for leave to appeal and an appeal against the decision and direction of Schmidt J. The application for leave to appeal and the notice of appeal was accompanied by an affidavit of urgency and also by an application for stay. Subsequently, appropriate directions were given and the matter was heard and decided. 6 In its amended notice of appeal the appellant specified the questions raised by the appeal as: 1. Whether her Honour was correct in finding that the appellant was in breach of any commitments given by the Commission. 2. Whether a right to strike is precluded by the Industrial Relations Act 1996. 3. Whether the appellant was afforded natural justice in the making of the direction. 7 The reasons given as to why leave to appeal should be granted were: 1. The appeal concerns findings that a registered organisation has breached commitments given to the Commission. 2. The extent to which there is a right to strike and the extent to which it is curtailed by the Industrial Relations Act 1996 have not been the subject of any authoritative or substantive decision of the Commission. 3. The natural justice arguments on appeal raise questions of jurisdiction. 8 The appellant argued its case on the appeal and application for leave to appeal on the following bases. As to the alleged breach of commitments, it was argued that when a large registered organisation such as the appellant is wrongly found to be in breach of commitments given to the Commission, it is a matter of considerable importance which should not be left on the record through the decision at first instance being sustained as a result of leave to appeal not being given. 9 The appellant submitted that although her Honour found that the taking of industrial action was inconsistent with a commitment given to the Full Bench, the appellant had made it clear to the Full Bench that there was going to be a recommendation for industrial action. It linked the collective bargaining process with the industrial action and the Full Bench never sought and was not given a commitment to the contrary. Further, her Honour found that a demand to withdraw the respondent's claim was inconsistent with the commitment given to the Full Bench to negotiate. Various meanings can be given to the word "negotiate". On its broad meaning it can require the making of concessions: Asahi Diamond Industrial Australia Pty Limited v Automotive Food Metals and Engineering Union (1995) 59 IR 385 at 421. This was not the meaning to be given to the word "negotiate", given the context in which the commitment was made to the Full Bench. 10 It was also submitted that the appellant had been wary of giving a commitment to negotiate because that might have been seen as agreeing to make concessions. It was in the context that it did not involve any concession to the employer's claim that the commitment to negotiate was given. While this seems to have been accepted by her Honour at p 5 of the decision, her Honour found that the demand that the claim be withdrawn amounted to a breach of the commitment to negotiate. 11 Further, that even if her Honour thought that it was an unreasonable position, this did not warrant a finding that there was a breach of the commitment to negotiate. The relevant finding was made despite the appellant making the unchallenged assertion from the bar table that it had negotiated with the employer in the intervening period and intended to continue negotiations on the next day. The fact that at such negotiations a withdrawal of the claim was put forward does not constitute a breach of the commitment to negotiate. It was in fact a position taken in the context of negotiations that continued despite that position being taken. 12 There were also submissions as to whether a right to strike was precluded by the Industrial Relations Act 1996 ("the Act") and whether the appellant was denied natural justice in the making of the direction. It was also submitted that a stay of her Honour's orders should be granted to the appellant. As to the stay sought, it was accepted that should be appeal be unsuccessful there was no basis for a stay to be granted. 13 The orders made by her Honour were made under s 134(2) of the Act. It is convenient here to set out the terms of that provision: 134 Conciliation of dispute (1) Commission to assist parties The Commission, when attempting the conciliation of an industrial dispute, is to do everything that seems to be proper to assist the parties to agree on terms for the resolution of the dispute. (2) Recommendations or directions During conciliation proceedings, the Commission may make a recommendation or give a direction to the parties to the industrial dispute. Failure to comply with any such recommendation or direction may not be penalised but may be taken into account by the Commission in exercising its functions under this Act. (3) Conferences The action that may be taken by the Commission to assist the parties includes making arrangements or giving directions for the convening and conduct of conferences of the parties or their representatives (whether or not compulsory conferences and whether or not presided over by a member of the Commission). (4) Good faith bargaining The Commission, when dealing with an industrial dispute, must consider whether the parties have bargained in good faith and, in particular, whether the parties have: (a) attended meetings they have agreed to attend, and (b) complied with agreed or reasonable negotiating procedures, and (c) disclosed relevant information for the purposes of negotiation. The Commission may make recommendations or give directions to the parties to bargain in good faith. 14 The key to whether leave to appeal in this matter should be granted is whether it was open to her Honour to make the challenged direction under s 134(2) having regard to the limited consequences of such a direction. 15 Failure to comply with a direction made under s 134(2) has very limited consequences. A failure may not be penalised although it may be taken into account by the Commission in exercising its functions under the Act. Without being exhaustive, this could occur, for example, when the Commission was considering whether to make recommendations or directions as to good faith bargaining under s 134(4) or when the Commission considers whether to issue a certificate of attempted conciliation under s 135. In those situations the Commission would be required to give the relevant party to the dispute the right to be heard (to a reasonable but not unlimited extent) as to whether a s 134(2) direction should be taken into account at the relevant time as to the further issue or step in the dispute proceedings. It would be open to the affected party to submit that circumstances which may have been material to the earlier finding should be reconsidered or considered in a different perspective. 16 The other important consideration in the exercise of the power under s 134(2) is that it arises in the context of the conciliation phase of the dispute which may occur, as it did in this matter, in circumstances of significant industrial disputation and dislocation of an essential public service. The Commission may not be able to engage in extensive fact-finding, or may only receive factual information by uncontested or contested statements made from the bar table. It may be impracticable to undertake any substantial proceeding to determine the facts in dispute and the proceedings are thereby akin to proceedings for interlocutory relief. 17 The making of a s 134(2) direction is manifestly one of the matters available to the Commission in fulfilling the mandate upon it under s 134(1) "to do everything that seems proper to assist the parties to agree on terms for the resolution of the dispute" which, in turn, is to be construed by reference to the object in s 3(g) of the Act, which reads as follows:

(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. 18 When the direction made by her Honour is seen in terms of the above analysis and in the context of the industrial disputation occurring at the time, the making of the direction on the basis it was made, was open to her Honour. We consider that it involved the exercise of a discretion unaccompanied by legal error and, to the limited extent relevant, factual error. It is thus not readily open to re-consideration on appeal: see House v The King (1936) 55 CLR 499 and s 191(3) of the Act. Similarly, it cannot be said that the appellant was relevantly denied procedural fairness. 19 Furthermore, having regard to the nature of the relevant provision and our consideration of its effect, a Full Bench would grant leave to appeal in relation to a direction made under s 134(2) only in very rare and exceptional circumstances. We consider that a similar approach should be adopted to that taken by the Commission and its predecessors over many years as to appeals from interlocutory decisions: see, for example, Caltex Petroleum Pty Limited v Harmer (1999) 92 IR 264 at 265 - 266, 269. 20 Finally, the proceedings do not seriously raise for consideration or determination the "right to strike" submission made by the appellant. Accordingly, the public interest criterion in s 188 which might require leave to appeal being granted has not been met. 21 We affirm the orders earlier made for the reasons now provided.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.