Broken Hill Chamber of Commerce and CFMEU (NSW Branch) [2002] NSWIRComm 244

APPELLANTS: Mr A R Moses of counsel KPMG Legal, Solicitors (Mr Chris McArdle) LEGAL REPRESENTATIVES: RESPONDENTS: Mr S Crawshaw SC with Ms P F Lowson of counsel Construction, Forestry, Mining and Energy Union (New South Wales Branch) (Mr Alex Bukarica)

CORAM: Wright J, President Walton J, Vice-President Boland J O'Neill C Friday 20 September 2002 Matter No. IRC 5160 of 2002 Broken Hill Chamber of Commerce and Ors and Construction Forestry Mining and Energy Union (New South Wales Branch) Application by Broken Hill Chamber of Commerce and Others for leave to appeal and appeal against a Decision of Deputy President Sams on 6 September 2002 in Matter Nos IRC 4012 and 5070 of 2002

DECISION OF THE COMMISSION [2002] NSWIRComm 244 1 This decision concerns an application by the Broken Hill Chamber of Commerce Inc. (the appellant), for the stay of a decision and interim orders of Deputy President Sams delivered on 6 September 2002 in Matter Nos IRC 4012 and 5070 of 2002. The proceedings before his Honour involved two notifications of an industrial dispute under s 130 of the Industrial Relations Act 1996 (the Act), alleging a breach of the Broken Hill Commerce and Industry Consent Award, and a failure to agree to pay the $18 per week wage increase provided by the State Wage Case 2002 (2002) 114 IR 81, respectively. The parties notifying the two disputes were the Construction, Forestry, Mining and Energy Union, New South Wales Branch (CFMEU) in Matter No IRC 5070 and the Barrier Industrial Council in Matter No IRC 4012 of 2002. 2 The background to the dispute is, for present purposes, sufficiently summarised in his Honour's decision as follows (at [2] - [3]): [2] The Broken Hill Chamber of Commerce ("the Chamber") on behalf of its members has put that the employers cannot afford to pay the $18 State Wage Case increase arising from the State Wage Case 2002 [2002] NSWIRComm 118. It is claimed that the local industry is depressed and to pay the increase will force businesses to close and exacerbate unemployment in Broken Hill. The Unions have asked for evidence of the employers' incapacity to pay and say if the Chamber wishes to argue economic incapacity, the State Wage Case Principles provides it an opportunity to do so.

[3] The Chamber has responded to what it submits is the intransigent and unrealistic attitude of the Unions, by holding meetings of employees and offering agreements under s170LK of the Workplace Relations Act ("the Federal Act"). It is said the Unions only represents 4 to 5 per cent of the Broken Hill workforce. 3 Conciliation was unsuccessful and a certificate reflecting that position was issued on 5 September. The proceedings then moved into arbitration, resulting in the decision and interim orders presently under appeal. 4 His Honour's consideration commences at paragraph [7] of the decision by recognising that it had not been possible to summarise the parties' submissions for practical reasons. The decision continued in the following terms: [8] Whether the members of the Chamber have the right to offer their employees s170LK agreements under the Federal Act is not a matter which I need determine in these proceedings.

[9] Rather, the Commission cannot ignore the practical industrial realities which underpin this dispute. Further, the Commission has a statutory obligation, in the arbitration of a dispute, pursuant to s136 of the Act, to take preventative action in respect to " a situation that is likely to give rise to an industrial dispute (see the Act's Dictionary). I have no doubt that this is a situation which is real and potentially very serious.

… [11] In my opinion, the steps taken by the Chamber to offer s170LK agreements, cannot be viewed in isolation from the consent award it entered into only twelve months ago. The Chamber is not only a party to the Award, but a major one. It was directly involved in the Award negotiations. The Award has a term of three years, expiring on 30 June 2004.

[12] I am compelled to observe that the steps taken by the Chamber are, prima facie , in conflict with its obligations under the Award and the agreement it entered into with the Unions to accept and abide by the terms and conditions of a State award for a period of three years. It was a commitment given to this Commission in the proceedings for the making of the consent award on 11 April 2001 (Matter IRC1503 of 2002).

[13] Such commitments and the agreement should not be lightly departed from.

[14] I am gravely concerned that the steps taken by the Chamber will fracture the co-operative approach to industrial relations which has existed in Broken Hill for many years. There is a long and stable history of State industrial regulation in Broken Hill. It is no coincidence that the offer of s170LK agreements by the Chamber to employees otherwise covered by the State award is in direct response to matters that are properly before the Industrial Relations Commission of New South Wales for determination under the Act. Sadly, the Chamber's actions are a recipe for industrial disaster.

[15] Whatever be the merits of the Chamber's claim - and I have no doubt that the Broken Hill region is suffering economically - the Chamber's response has been little short of provocation and amounts, in my view, to an incitement to industrial action. I cannot be any more blunt.

[16] I would make the following pertinent observations:

[17] Firstly, the Chamber has the right to pursue its claim of incapacity to pay State Wage Case increases through Principle 15 of the State Wage Case Principles. As a responsible peak employer body, I would have expected it to do so rather than resort to the alternatives it has so far taken.

[18] Secondly, the offer of s170LK agreements under the Federal Act, is no more and no less than a crude industrial tactic to force the Unions to accept the Chamber's position on the $18 State Wage Case increase.

[19] Thirdly, s134(4) of the Act requires the parties to an industrial dispute to negotiate in good faith. I am well convinced that the Chamber's actions are directly contrary to the spirit and intent of s134(4). 5 His Honour then continued to formulate interim orders (at [20] - [29]), referring to two decisions of the Australian Industrial Relations Commission on the power to issue an interim order as being to preserve the status quo: see CSR Limited and Others (Print M5779) per Williams DP and The Maritime Union of Australia and Others and ASP Ship Management Pty Ltd and Another (C2002/3662 and C2002/3801 AIRC, Melbourne, 4 August 2002) per Watson SDP. His Honour considered that the principles espoused in those decisions were equally applicable to applications under the Act and continued:

[23] I am satisfied that the Commission has the power to make an order requiring the status quo to be maintained while the substance and merits of a dispute are heard and determined by the Commission. Usually, such orders are sought against Unions to ensure that industrial action cease or not take place in order to restore the disputant parties to the status quo. I cannot see why an order should not be made against an employer who has taken steps which are so obviously designed to alter the status quo. Prima facie , such steps have prejudiced the legitimate industrial interests of other parties to the Award, whether their members have been directly approached or not.

[24] It needs to be emphasised that the steps so far taken are, in my view, designed to achieve a result which may well be able to be obtained by using the legitimate and usual processes under the Act and the Commission's Wage Fixing Principles.

[25] Moreover, I have no doubt at all that it is in the public interest for an interim order to be made pursuant to my obligations under s146(2) of the Act.

[26] However, I am not convinced that it is appropriate to make the orders proposed by the Union in Ex"2" in the proceedings.

[27] On the other hand, I do not accept that the interim orders I propose to make are, as Mr McArdle contends, a restraint on a group of individual employers from exercising rights available to them under the Federal Act. No application for a s170LK agreement has been lodged, let alone approved by the Australian Industrial Relations Commission. There can be no conflict between Federal and State law.

[28] The interim orders do no more than maintain the existing status quo and hopefully avoid a situation which may give rise to the potential for a serious industrial dispute. 6 The orders made by His Honour pursuant to s 136(1)(d) of the Act were in the following terms:

1. The Broken Hill Chamber of Commerce, its officers, members, agents and employees, shall take no further steps to disturb or alter the status quo as to the existing industrial regulation and rates of pay and conditions of employees employed by parties to the Broken Hill Commerce and Industry Consent Award 2001 .

2. The Barrier Industrial Council, it's affiliated Unions and their members, shall refrain from taking any industrial action in respect to the disputes. 3. The parties are to re-commence good faith negotiations in accordance with cl 1.12 of the Award.

4. This order shall take effect from 6.00pm on 6 September 2002 and remain in effect for twenty-eight days thereafter or unless otherwise ordered by the Commission. 7 The application for leave to appeal and appeal, in which the stay of the orders at first instance was sought, was filed on 9 September 2002 together with a Notice of Motion seeking that the appeal be dealt with on an expedited basis. 8 The application for leave to appeal identifies the following questions as being raised on the appeal: (a) The capacity of the Industrial Relations Commission to restrain parties from accessing or seeking agreements under Section 170LK of the Workplace Relations Act 1996.

(b) The scope and extent of interim dispute orders under Section 136(1)(d) of the Industrial Relations Act 1996.

(c) The capacity of the Industrial Relations Commission exercising arbitral powers to restrain parties from accessing Federal legislation generally. 9 This application for expedition was heard and refused by a Full Bench of the Commission on Wednesday, 11 September 2002. The application was denied, inter alia, due to the need to give adequate preparatory time to the parties to permit the significant and complex issues raised on the appeal to be properly dealt with. The parties were informed the application for a stay of the first instance orders would be heard in the week commencing 16 September 2002 and directions were made for the filing of submissions to permit the matter to be dealt with. The parties were put on notice that the time for the hearing of the stay application would be limited. 10 The Full Bench also noted that steps were being taken to bring forward the hearing of the application in Matter No. IRC 4579 of 2002, the Broken Hill Chamber of Commerce application for exemption from the State Wage Case 2002, to a time in September (noting that it had previously been listed before Sams DP in November, and the present appellants had not sought expedition of those proceedings). We should note that those proceedings are now listed for hearing before a Full Bench commencing at 10.15am Thursday next, 26 September 2002. Regrettably it is not possible for those proceedings to be heard outside Sydney. 11 The application for a stay is strenuously opposed by the respondents which include the Barrier Industrial Council, the CFMEU (NSW Branch), the Town Employees Union and all other relevant Broken Hill based unions. However, the parties are in agreement that the principles to be applied in relation to the present application are conveniently set out in the recent decision of this Commission in Re Transport Industry - Waste Collection and Recycling (State) Award (2000) 102 IR 192 at [19]: [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. 12 It is germane, however, to note that there are a number of circumstances particular to this matter which were not present or relevant in those proceedings. 13 The appellants submitted that seven specific matters raised by them in their submissions establish that they have an arguable case and real prospects of success. These matters are, in summary form, as follows: (1) The order of Sams DP, particularly paragraph 1 thereof, is void for uncertainty or want of specificity.

(2) The approach taken by Sams DP to the exercise of jurisdiction under s 136 of the Act is inconsistent with the principle that a court should not impute to the legislature an intention to interfere with fundamental rights. The fundamental right here is said to be the fundamental right of freedom to contract with their employees that is reinforced by s 170LK of the Workplace Relations Act 1996 (Cth).

(3) The order made by the Deputy President purporting to exercise jurisdiction under s 136(1)(b) of the Act is plainly ultra vires in that it purports or has the effect of restricting the capacity of the Commonwealth to exercise its executive power - relying upon the judgment of the High Court in Commonwealth v Cigamatic Ltd (in liquidation) (1962) 108 CLR 372 and Re Residential Tenancies Tribunal of New South Wales; Ex parte Defence Housing Authority (1990) 190 CLR 410 at 424 and 454.

(4) The respective federal and State provisions would be operationally inconsistent if the orders of Sams DP were to take effect creating the possibility of an inconsistency of laws under s 109 of the Constitution . That is, that the order of Sams DP pursuant to s 136 of the State Act impairs or detracts from the Commonwealth's laws conferring jurisdiction on the AIRC by indirectly precluding an actual exercise of the jurisdiction set out in the relevant part of the federal Act.

(5) The decision and various findings of the Deputy President were not supported by the evidence. It is said that the question of whether there is any evidence of particular fact is a question of law as is the particular influence that might be drawn from the facts found or agreed. In this case a review of the proceedings on 5 September 2002 before Sams DP disclosed that there was no evidence before Sams DP of the existence of a situation likely to give rise to an industrial dispute; there was no evidence to support the finding that the action of the appellants conflict with the obligations that they have under the relevant State award; there was no evidence that the offer of agreements under the federal Act was in response to the State Wage Case 2002 application concerning the relevant State award; and, there was no evidence that the appellants were not negotiating in good faith.

(6) The order can be properly characterised as an exercise of "judicial power" because it does not involve the creation of new rights instead it purports to restrain the exercise of an existing right that is the right of employees and employers named in the order to register an agreement under s 170LK of the federal Act.

(7) The order made by Sams DP has been made without regard to s 78B of the Judiciary Act 1903 (Cth) which expressly prohibited Sams DP from making such an order given the fact that the s 109 point had been raised in the proceedings. 14 Whilst the prospects for success may be an applicable consideration in the application for a stay, even if it only arises in the context of considering the balance of convenience (see Campbells Cash & Carry v National Union of Workers, New South Wales Branch (2001) 104 IR 400 per Walton J, Vice-President), we do not consider, in this matter, that consideration should significantly feature for the following reasons: 1. The central plank of the attack upon the Deputy President's decision was the notion of inconsistency. It is said that his Honour did not deal with the matter that was plainly raised before him. However, we would wish to note, as to the s 78B point said by the appellant to have made his Honour's orders, interlocutory as they were, a nullity, even if the proceedings did give rise to some notion of 'inconsistency' in the constitutional sense, we do not consider it necessary for his Honour to have determined such a complex point of law in interlocutory proceedings: Australian Postal Corporation v Gray (1989) 98 FLR 468, citing American Cyanamid Co v Ethicon Ltd [1975] AC 396, Cohen v Peko-Wallsend Ltd (1986) 61 ALJR 57 and Victorian Egg Marketing Board v Parkwood Eggs Pty Ltd (1978) 33 FLR 294 at 312 - 313.

2. We consider, noting that we are yet to hear whether the various Attorneys-General would wish to be heard on the appeal and noting that the relevant notices under s 78B of the Judiciary Act have only recently been issued, it would be highly inappropriate for the Commission, in the determination of this stay application, to express, other than a very preliminary and non-conclusive view as to the appellant's prospects of success, particularly in relation to alleged constitutional issues. This is particularly so where we are informed that the Commonwealth Attorneys-General presently intends to put submissions to us on this point. 3. It is trite that an appellate court would be loathe to interfere with the exercise of discretion of a trial judge, utilised in an interlocutory decision - especially one designed to protect the processes of the tribunal in the proceedings before him. Whilst plainly in a different context, we consider it useful to have regard to the judgment of Gleeson CJ (with whom Meagher JA and Loveday J agreed) sitting as the presiding member in the Court of Criminal Appeal in R v Allen (unreported, Court of Criminal Appeal, 14 August 1991). This was an appeal from a decision of Ducker DCJ in which his Honour rejected a submission that the indictment then under consideration was bad in law and should be set aside. Gleeson CJ held: I am of the view that leave to appeal should be refused substantially for two reasons. The first reason relates to the substance of the legal argument on which the application is based. That is a matter that, depending upon what happens at the trial, might require further consideration by this Court of Criminal Appeal and consequently I propose to say as little about my views on the subject as possible. It suffices to say that as Judge Ducker indicated in his reasons for judgment, the points that the applicant relies upon may be affected , or to some extent depend, upon the facts as they emerge at the trial and may, in particular, be affected by the evidence as it unfolds at the trial. The second reason which leads me to propose that leave to appeal should be refused is the consideration that I expressed on an earlier occasion in a judgment on 1 May 1991 in relation to an application by Mr Allen, that is to say, that there is a general consideration that, subject to exceptional circumstances that can arise, it is undesirable that an appellate court should intervene in current criminal proceedings for the purpose of making interlocutory judgments upon matters likely to arise in the course of criminal proceedings For those reasons I would propose that the application for leave to appeal should be refused. 15 With these considerations in mind we propose to make some brief and very preliminary remarks as to the prospects for the appeal. With deference to the skill and care with which the submissions have been put by counsel for the appellants, we have some real doubts as to the arguments alleging uncertainty in the orders of his Honour, alleging a lack of evidentiary support for the orders and the contention which attributes to Sams DP's orders the imprimatur of 'judicial power'. As to the evidentiary findings, we should note our view, necessarily preliminary given the stage of proceedings, that the findings made appear to have been reasonably open to his Honour. Further, we have some real reservations as to the s 78B point, noting that the section is only applicable to circumstances involving a "cause" pending in a Court which involves a "matter" arising under the Constitution or its interpretation and that, in any event if the section is applicable, it is arguable that his Honour's orders may have been available under the exceptional circumstances set out in subsection 78B(5). 16 Given that we are particularly reluctant to express any view as to the inconsistency said to arise between the orders of his Honour and the provisions of s 170LK of the Workplace Relations Act (and noting that we have not been taken to that provision in any detail by the appellants), we merely observe at this stage that it is arguable the respondents were correct in their submission that the Commission was acting within its own jurisdiction to deal with a serious prospect of industrial disputation and to protects its own processes: Hill v Department of Education and Training (1998) 95 IR 201. Further, we consider that the respondents have raised a real issue as to the availability of the inconsistency point in identifying that no process has been initiated under the Workplace Relations Act to give effect to the appellant's intention to invoke s 170LK of that Act. 17 As to the balance of convenience, a matter of particular significance is the effect the grant of the stay would potentially have on both the present appeal and the proceedings relating to the State Wage Case increase, to be heard next Thursday. Both in this respect and generally we adopt the decision of the President in Re Transport Industry - Waste Collection and Recycling (State) Award, reflecting as it does, inter alia, the decision of the Court of Appeal in Cambridge Credit Corporation v Alexander (1985) 2 NSWLR 685. It is plain that the power to grant a stay is to be exercised in accordance with notions of justice between the parties and to ensure that the relevant substantive appeal proceedings would not "be rendered nugatory". 18 The interim orders against which the appeal is brought, and which are sought to be stayed in the present application, themselves sought to do no more than preserve the status quo in relation to the industrial situation in Broken Hill and to do so for a very limited period (some 28 days). Indeed, it should be said the orders at first instance were made to protect the integrity of proceedings that were then currently pending before his Honour. If a stay of those orders were granted, there is the real possibility that the orders of his Honour would be rendered nugatory and the appeal thereby determined against the respondents before the hearing of the appeal. 19 Further, it is of particular importance to have regard to the broader context of recent industrial events relevant to the proceedings. These events appear to include: (a) In April and May this year, a consent award was made relevantly covering the area the subject of these proceedings. The consenting parties included the Broken Hill Chamber of Commerce Inc, the Barrier Industrial Council and various unions affiliated to that Council including the Broken Hill Town Employees Union, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, the Shop, Distributive and Allied Employees' Association and the Construction, Forestry, Mining and Energy Union. (b) That consent award was to operate for a nominal term of three years and contained the following provision in clause 1.7(j):

"The parties agree that New South Wales State Wage Case decisions will be applied into our 2001 Award upon exchange of letters between the BIC and the Broken Hill Chamber of Commerce Inc. as soon as possible after such decisions are handed down. Such letters will set the date of the implementation of the State Wage Case decisions are handed down. Such letters will set the date of the implementation of the State Wage Case Decision into the 2001 Award, in order that there be no cause for back pay." (c) Clause 1.36 of the award which provides, in 1.36(a): "The Broken Hill Chamber of Commerce, the Barrier Industrial Council and affiliated Unions will implement this Consent Award subject to the understanding that it is to be closed to any general community wage adjustments as may be handed down by the Industrial Relations Commission of New South Wales, or any other applicable body, for the duration of this Consent Award except as provided in Clause 1.7(j)."

(d) On 31 May 2002 the State Wage Case 2002 decision was delivered.

(e) Proceedings were commenced by the Barrier Industrial Council on 9 August 2002 to apply the State Wage Case increase to persons employed under the Broken Hill Commerce and Industry Consent Award 2001. The proceedings have been before Sams DP, both in Broken Hill and in Sydney on a number of occasions (including telephone hook ups with Broken Hill). Those proceedings have been joined or heard together with the two dispute proceedings which are the subject of the present appeal. Whilst complicated by various factors, for present purposes it is sufficient to note that the employer respondents to the application for State Wage increases, have made application to defer the $18 increase or perhaps, alternatively, to absorb it into over award payments currently being made. That matter, whilst initially set down for hearing in Broken Hill in November this year, is now to be heard on Thursday next, less than seven days away. 20 These circumstances give rise to a further matter which militates heavily against the grant of the stay. The appellant, by being a party to the consent award approved by the Commission earlier this year, containing what is arguably an undertaking as to the flow on of State Wage Case adjustments, would, by offering terms and conditions of employment in a manner different to that contemplated by the award, be acting in breach of an undertaking presumably given as between the parties and to the Commission. Such an agreement should not, to echo the words of the Deputy President "be lightly departed from". If the Commission were to grant a stay of the orders of the Deputy President it would be facilitating the course of conduct foreshadowed by the appellant and potentially give rise to a situation of considerable industrial unrest. This could scarcely be described as being consonant with the Commission's mandate as provided in s 3 of the Act. 21 In this context, that is in a context where the conduct restrained by the orders are, to use Sams DP's words, "a recipe for industrial disaster", the emphasis, when considering a stay should, in our view, be even more significantly focussed upon the balance of convenience. 22 A further relevant consideration is that, whereas at the time the order the subject of the present appeal was made, it was made in aid of an application which was not to be heard until November this year, a stay is now being sought of that order at a time when the hearing of the application will occur within the next seven days and in circumstances where it is more probable than not that the determination of that application and of the appeal will follow shortly thereafter. When those factors are combined with those referred to above there is a compelling basis to refuse the application for a stay on the basis of the balance of convenience. This approach is consistent with the approach adopted by the President of the federal Commission (Guidice J) in the important decision in Coal & Allied Operations Pty Ltd v CFMEU (Print P6645, 13 November 1997). 23 We have formed the view then that the stay sought against the orders of Deputy President Sams should be refused. The appeal proceedings will stand adjourned until not before midday on Thursday 26 September 2002. We note that Matter No IRC 4579 of 2002 (the State Wage Case adjustments application) will be heard before the Full Bench commencing at 10.15am on that day. We confirm the directions made on 19 September 2002 and confirm the liberty to apply given on that occasion. Further we would note, in an effort to facilitate the expeditious conduct of proceedings on 26 September (noting the relevantly limited time frame in which the proceedings are to be conducted), should the relevant Attorneys-General intend to intervene in the proceedings, written submissions are to be received on or before 10 am Monday 23 September 2002 and note the undertaking of the appellants to so inform the relevant Attorneys-General.

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.