CONSTRUCTION, FORESTRY, MINING & ENERGY UNION OF WORKERS

INTEGRATED GROUP LTD trading as INTEGRATED WORKFORCE

Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Citation : [2005] WAIRC 01915

Appeal - Stay - Principles governing stay - Turns on own facts

Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685

Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308; [2003] WASCA 307

Australian Nursing Federation; Ex parte Victoria [1993] HCA 8; (1993) 112 ALR 177

Australian Nursing Federation; Ex parte Victoria (No 2) (1993) 67 ALJR 571

Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460

Croney v Nand [1998] QCA 367; (1999) 2 Qd R 342

Griffin; Ex parte Professional Radio and Electronics Institute of Australia [1988] HCA 72; (1988) 167 CLR 37

Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79

Kwa v Bank of Western Australia [2003] WASCA 163

Kwinana Construction Group Pty Ltd v The Electrical Trades Union of Workers (1954) 34 WAIG 51

Marks and Federated Ironworkers' Association; Ex parte Australian Building Construction Employees and Builders Labourers' Federation (1981) 34 ALR 208

Medical Board of Western Australia; Ex parte P [2001] WASC 103; (2001) 24 WAR 127

Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65

Sharkey; Ex parte Burswood Resort (Management) Ltd; Federated Liquor and Allied Industries Employees' Union of Australia, Western Australian Branch, Union of Workers (1994) 55 IR 276

The Board of Management, Princess Margaret Hospital for Children v The Hospital Salaried Officers' Association of Western Australia (1975) WAIG 543

The State Bank of Victoria v Parry [1989] WAR 240

1 WHEELER JA: This is an application for a stay of the order of the Western Australian Industrial Relations Commission, being a decision of the Full Bench on appeal from Commissioner Wood. The matter arose in the following way.

2 The CFMEU's member, Mr Brandis, was employed by BHP Billiton Iron Ore Pty Ltd, the appellant in the present matter, as an engine driver for approximately 22 years until 1999, when he took voluntary redundancy. From approximately 2001, Mr Brandis was employed by Integrated Workforce. In that capacity, he was supplied to BHP Billiton as an engine driver. On a number of occasions he applied for direct employment as an engine driver with BHP Billiton, but was not employed. In January 2004, BHP Billiton again advertised for applications for employment as rail transport technicians to drive locomotives on its railways in the Pilbara. Mr Brandis applied for one of these positions and underwent a variety of pre-employment procedures. His application was refused, as was a subsequent application by him.

3 The appellant alleged in the Commission that, during the time he has been employed by Integrated Workforce to work at BHP Billiton, he has also been employed jointly by BHP Billiton. It further claimed that BHP Billiton had unreasonably refused to employ Mr Brandis. Commissioner Wood found against the CFMEU. On appeal to the Full Bench, the Full Bench by majority upheld the finding in relation to the claim of joint employment, but found that BHP Billiton had unreasonably refused to employ Mr Brandis, and ordered that he be employed as and from 7 May 2004. That order was formally made on, I think, 28 June 2005. In any event, the order was formally made a considerable time after 7 May 2004.

4 There are a number of grounds of the proposed appeal. Some raise relatively complex issues, requiring the Court to consider whether there is a link between various aspects of the reasoning of the President, for example, in relation to the two questions referred, and whether an alleged error in relation to the ground which was dismissed wrongly infected the reasoning of the Full Bench in relation to that which was upheld. It is not necessary for present purposes to consider all the grounds, but rather simply to find that it appears to me that they are arguable, although of varying strength.

5 There are, however, two grounds which are of particular importance for this application. One is to the effect that the Full Bench lacked jurisdiction to order that BHP Billiton employ Mr Brandis, in effect, retrospectively. There are primarily two reasons for that, one relying upon a constitutional argument, and another relying upon what it is conceptually which is involved in ordering that a person be employed, the submission being made being to the effect that employment is a prospective concept. It is not necessary to explore the reasoning in detail. However, it does appear to me that the ground is arguable.

6 Importantly, too, it is clear from the transcript, and was conceded by counsel for the first respondent, that Mr Brandis did not seek retrospective employment, but rather only an order that he be employed prospectively. The fact that no such order was sought does not mean that the Commission was necessarily in error in so ordering, but it is a relevant factor to the grant of the stay.

7 It should also be noted that the appellant submitted before me that one difficulty with the terms of that order was that it was by no means clear what, as a practical matter, was involved in employing Mr Brandis retrospectively. He had, of course, worked for BHP Billiton for the greater part of that time. He had been paid for that work. What, then, it was asked, did the order contemplate? The first respondent suggested that there might need to be some additional payment to Mr Brandis, depending upon the difference, if any, between the payment made to drivers employed directly by BHP Billiton and drivers supplied by Integrated Workforce, but otherwise seemed to me to acknowledge that there might be some difficulty in working out what it was that the order required BHP Billiton to do.

8 Whether the order is ultimately held to be one which was able to be made retrospectively or not, it seems to me that, in circumstances where it is arguable that the order should not have been made in that form, where there is no apparent disadvantage to any party in staying the operation of the retrospective part of the order, and where there may well be unnecessary expense and controversy arising from attempts to clarify what practically the retrospective part of the order requires, it is appropriate to stay the operation of the order so far as it relates to the period between 7 May 2004 and the date of the order of the Full Bench. That is so whatever may be the appropriate test for the grant of a stay, a matter to which I will turn later.

9 The other ground which requires particular discussion is that which relates to fresh evidence. During the course of the appeal, BHP Billiton made an application in relation to the question of whether, if Mr Brandis was not jointly employed by BHP Billiton, BHP Billiton should be ordered to employ him. During the hearing before Commissioner Wood, BHP Billiton had adduced certain evidence relating to incidents which had occurred while Mr Brandis had been driving locomotives for it, which incidents, it was suggested, formed part of the factual matrix which made it reasonable for BHP Billiton not to employ him. In broad terms, the evidence of the incidents was directed at demonstrating that Mr Brandis was not as safe or skilled a driver as was desirable.

10 Commissioner Wood considered those incidents. The most serious of them related to incidents in 2002, involving overriding of the train's train protection system. There had been an investigation into that matter, and at the time Mr Brandis had been disciplined by having his employment suspended for two weeks. However, as the Commissioner noted, that appeared to be the only serious matter in Mr Brandis' otherwise lengthy record of driving for BHP Billiton, and BHP Billiton at the time had not considered it to be sufficiently serious to require that Integrated Workforce not supply Mr Brandis' services in future. It seems not to have been in dispute that it was open to BHP Billiton to refuse to accept the services of particular workers supplied by Integrated Workforce.

11 However, BHP Billiton submitted before the Full Bench that there had been incidents subsequent to the matters considered by Commissioner Wood which related to Mr Brandis' ability to drive trains safely, and had sought, if the Full Bench found adversely to it in relation to that aspect of the appeal, to have the question of refusal to employ remitted to the Commissioner to hear and determine on the basis of those new facts, taken together with the facts previously considered. That was an application which was agreed to by all parties. The first respondent conceded before me, as the transcript made clear, that its attitude was that these were factual issues which would be appropriately remitted. In doing so, it, of course, made no concession as to what the outcome of that consideration should ultimately be.

12 The Full Bench dismissed the application in relation to the fresh evidence, giving reasons for doing so in its reasons upholding the appeal. However, it seems clear from those reasons that the Full Bench did not consider that part of the application which dealt with the fresh evidence to which I have referred. There had been no application to have the Full Bench itself hear that evidence, since it appears to have been assumed by all parties that the more appropriate course was the remitter procedure which I have described.

13 In the result, the appellant complains, first, that the Full Bench did not consider its application in relation to the fresh evidence. That appears to be so. A reading of the Full Bench's reasons suggests that the matter was simply one which was overlooked. Further, of course, the appellant complains that it has been denied natural justice, in that the fresh evidence referred to was relevant to the question which the Commission had to determine, and it has been denied the opportunity to adduce that evidence. Again, this issue appears to me to be arguable.

14 This ground is of particular relevance to the stay application, since it is submitted by the appellant that the employment of Mr Brandis would pose "a significant safety risk". That is why, it is submitted, given that the grounds of appeal are arguable, it would be appropriate to stay the Commission's order at the present time.

15 I pause to note that there was controversy between the parties as to whether it was necessary to show special or exceptional circumstances in order to obtain a stay of an order pending an appeal. It was accepted on both sides that the fundamental principle is that the successful party is, prima facie, entitled to the fruits of the judgment. That being so, it is clear, and was accepted on both sides, that some factor must be shown which points in favour of the grant of a stay. The controversy centred on the question of whether that factor or factors should be "special" or "exceptional", those being terms which tend to suggest that the discretion to grant a stay should be sparingly exercised.

16 The appellant urged that I should follow, in particular, the views expressed in the New South Wales Court of Appeal in Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 at 693 - 694. In that case, the Court of Appeal of New South Wales considered it appropriate to reconsider the formulation of the test for the grant of a stay pending appeal, which until that time had often been expressed in terms that "special" or "exceptional" circumstances needed to be demonstrated. The Court considered there were three reasons why it was appropriate to reconsider that formulation.

17 One turned upon the words of the relevant rule, which contained no such qualification. In the present case, too, it is pointed out, the relevant regulation contains no such qualification. The third reason related to the language of recent decisions of the Court of Appeal of New South Wales and the practice in that jurisdiction, and may be set aside as inapplicable in Western Australia.

18 The most controversial reason, perhaps, is the suggestion that the principle that special circumstances should be shown grew up when the facility of appeal was relatively novel and appeals were relatively rare. For myself, I find it difficult to see how increasing resort to the facility of appeal, which no doubt has taken place over the last 100 years or so, should lessen the force of the principle that the successful party is, prima facie, entitled to the fruits of the judgment. There may be an argument that increasing resort to the facility of appeal makes it more, rather than less, important to emphasise that it is to the trial Judge or the Tribunal of first instance that the determination of a matter is primarily entrusted. Where witnesses are called, or where the Tribunal appealed from is a specialist one, that first instance Tribunal will generally possess an advantage peculiar to it, to which appropriate weight must be given.

19 In a careful submission, counsel for the appellant suggested that it was an open question in Western Australia whether special circumstances were generally required where a stay of a judgment appealed from was applied for. It was submitted that those authorities which tended to suggest that special circumstances were required were concerned either with a stay pending an application for special leave to appeal to the High Court, in relation to which particular considerations apply, or related to O 47 r 13 of the Rules of the Supreme Court 1971 (WA), which expressly refers to "special circumstances". My own view is that the better view is probably that the decision of the Full Court in Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308; [2003] WASCA 307 suggests that in this jurisdiction "special circumstances" are generally required to be demonstrated before a stay can be obtained pending an appeal. I note that, in that case, Murray and Parker JJ purported, in [8], "to state the applicable general principles", and, in [9], listed what they took to be "the generally applicable relevant principles" as including that the Court would not exercise its discretion in favour of an applicant for a stay "unless special circumstances are shown justifying the departure from the ordinary rule".

20 It is therefore my view that "special circumstances" are required to be shown before the Court will grant a stay. However, in the context of the present case, I should also add that I would accept that if there had been events which had either occurred or come to light since the decision under appeal, which demonstrated that there was a risk to the safety of the public, or a section of it, which might arise if the operation of the judgment were not stayed, that would be capable of constituting a special circumstance. The question then arises as to whether the appellant has demonstrated that the employment of Mr Brandis, in the light of the incidents which have occurred since the decision of Commissioner Wood, would pose such a risk. I accept also that those matters should be considered, if it seems necessary to do so, in the context of the earlier matters which were before Commissioner Wood, so that if it could be seen that there were a repeated or worsening pattern of behaviour with safety implications, that would be relevant, even if the new instances were not themselves sufficient to demonstrate an unacceptable risk to safety.

21 The two matters which are particularly relied upon in this context are to be found in the affidavit of Mr Jolly dated 14 July 2005. The first occurred in December 2004 and involved a failure by Mr Brandis to open a brake pipe cock. Mr Jolly deposes that that failure could have resulted in the train not being able to stop as quickly as required, as the train brake was only operating on the first 100 cars. Mr Jolly's affidavit continues, in par 29:

"The 200 cars on the rear of the train had no brake. Also the rear 200 cars could have ridden up on the front portion of the train if a heavy brake application was applied when the driver realised the train was not stopping as quickly as it should."

22 Mr Brandis deposes that this incident was an oversight on his part. He acknowledges that the cock should have been turned on. However, in the context of that particular incident, he deposes that partially made-up trains in the yard are short, unloaded trains which only travel at low speed and are easily brought to a halt. He deposes that the train in question was made up in three separate sections of approximately 100 cars and that, when made up into a 300-car train, it was not moved before braking tests were conducted which were designed to detect the lack of brake pipe air in the last 200 cars.

23 That matter, in December 2004, was investigated by Integrated Workforce. Mr Brandis was stood down, missing a total of six 12-hour shifts as a result. It appears that Integrated Workforce sent Mr Brandis a letter saying that that breach was a serious breach of BHP Billiton rules and procedures and that any further breaches might result in termination of his services by Integrated Workforce. At the completion of that suspension, it appears that Mr Brandis returned to work driving trains for BHP Billiton.

24 In relation to that incident, I accept, as counsel for the appellant submitted, that there had been a safety breach, and that, while in the particular circumstances there may not have been serious danger, it was nevertheless most undesirable that there should be a breach in relation to any layer of procedures which were concerned with the safe stopping of trains.

25 The second incident occurred in February 2005, which resulted in damage to a piece of equipment called a "digitair", being a piece of equipment which relays the air pressure from the last car on the train to the driver. In relation to this matter, Mr Brandis, however, denies that he caused or contributed to the damage to the digitair. It is his view that, since the train with the digitair had travelled approximately 220 kilometres after he had completed an operation in respect of it, the damage could have occurred at any time during that journey. He further deposes that, in his view, if the digitair had been inoperative during that journey, it would have been noted by the driver of the train because of an absence of readout in the cabin. There is an investigation into that incident, and I am not able to make any finding in relation to Mr Brandis' responsibility, although I accept that there is evidence which could lead to the view that he was responsible. Further, there is a dispute, as I understand it, about the degree of danger posed by damage to the digitair.

26 In relation to both incidents, there is evidence from Mr Thomas, sworn 21 July 2005. He is a locomotive driver employed by BHP Billiton, of more than 20 years' experience, including six years as a special class instructor driver with the Victorian Railways. He is the secretary of the first respondent, and elected under the Mines Safety and Inspection Act 1994 (WA) as a safety representative in relation to BHP Billiton's rail operations. In relation to the December 2004 incident, I think it is fair to say that the effect of his evidence is that the incident did not result in danger while the train was being made up and, while he implicitly appears to accept that the event was undesirable, he notes that the mandatory tests carried out prior to departure would have prevented the train from departing until the brakes were fully operational. In relation to the digitair, I think it is fair to say that he considered that any danger was, although theoretically possible, unlikely. It is his personal view, he deposes, that there is no valid safety-related reason why Mr Brandis should not resume duties as a locomotive driver at BHP Billiton. While he is, in a sense, an interested party because of his relationship to the first respondent, I am prepared to accept for the purposes of this application that Mr Thomas would be unlikely to depose in those terms if, with his experience, he considered that there was a significant risk to other members of the first respondent, or other employees of the appellant, from Mr Brandis' employment.

27 Finally, I should note in this context the affidavit of Mr Edwards, sworn 23 July 2005, which relates to an incident, which it is not necessary to describe, which may be understood as suggesting that Mr Jolly has some degree of animosity towards Mr Brandis. Commissioner Wood accepted Mr Jolly's evidence, although he noted that Mr Jolly appeared at times to be hesitant in his answers during the course of evidence before him and I would not be prepared to make even a provisional finding about Mr Jolly's credit or affidavit material. I would note, however, that Mr Jolly's evidence in his affidavit as to the earlier incidents, which either were put before Commissioner Wood or were available to be put before the Commissioner, do appear (save for the description of the August 2002 events) to be expressed in a way which somewhat overstates any potential or actual problems, and this must be taken into account in assessing the two latest incidents.

28 In the end, the safety issue it seems comes to this. There was clearly a matter in August 2002 which was considered to be dangerous. However, Mr Brandis was disciplined for that and continued to work for BHP Billiton for a considerable period of time, and that was a matter which was fully ventilated before Commissioner Wood and considered by the Full Bench. Since that time, there have been two incidents of a serious nature. The December 2004 incident was an oversight by Mr Brandis, which he acknowledged should not have occurred. However, again following that incident, it appears that BHP Billiton was content to allow Mr Brandis to continue to drive locomotives for it for some period. The incident appears not to have been one demonstrating an attitude of flagrant disregard for safety, or forming part of a pattern of incidents of the same kind. The latest incident is disputed, Mr Brandis alleging it is not his responsibility at all, and there being conflicting evidence as to any potential danger. It therefore seems to me I should disregard it.

29 Although the appellant expresses a concern to which weight should be given, that concern, it seems to me, is expressed in a way which tends to overstate the significance of the various incidents in which Mr Brandis has been involved, and it is difficult to avoid the conclusion that that view of the appellant may be coloured, to an extent, by its desire to avoid an order which, in its view, should not have been made in the first place. There is, further, evidence from an experienced locomotive driver that Mr Brandis is not a safety risk.

30 While I accept, therefore, that the Court should err on the side of caution where the safety of Mr Brandis' fellow employees, and others, is concerned, it is my view that the appellant has not demonstrated that Mr Brandis poses such a safety risk that the order of the Commission should be stayed. I would add that the order of the Commission is, of course, not such as to immunise Mr Brandis from whatever steps, in terms of supervision and the like, that the appellant may consider to be appropriate, nor would it prevent the appellant from taking measured and appropriate disciplinary action in the event of any further breaches of safety requirements.

31 However, for the reasons which I have earlier given, it is my view that it is appropriate to stay so much of the order as purports to operate retrospectively, that is, prior to the making of the order made by the Full Bench. I would otherwise dismiss the application for a stay.