Campbells Cash and Carry Pty Ltd v National Union of Workers, NSW Branch

JUDGMENT: - 6 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: WALTON J, Vice-President 22 AUGUST 2002

APPLICATION BY AUSTRALIAN BUSINESS INDUSTRIAL FOR LEAVE TO APPEAL AND APPEAL AGAINST A DECISION OF COMMISSIONER CONNOR GIVEN ON 18.7.2002 IN MATTER NO. IRC 3282 OF 2002. DECISION [2002] NSWIRComm 206

1 In conjunction with its application for leave to appeal, and if granted, appeal the decision of Connor, C given on 18 July 2002, Australian Business Industrial ("ABI") applies for the variation in rates of pay in the Transport Industry - Retail (State) Award ("the award") granted by the Commissioner by that decision be stayed generally until 19 December 2002 or alternatively stayed until 19 December 2002 with respect to the members of ABI to whom the award applies. ABI accepts that there should not be a variation or stay of the award in so far as it operates from the December date.

2 The alternative submission by ABI requires some clarification. On 14 August 2002, ABI put an alternative submission that the proceedings be partially stayed so that the award would not operate with respect to its members. When the matter resumed on 16 August 2002, the Commission raised with ABI whether the grant of such a partial stay might not require an order which resulted in the identification of those employers (members of ABI) against whom a stay might operate. In response to this question, Mr Ronfeldt, who appeared for ABI, sought to amend his alternative application by only seeking a partial stay if any stay order was confined so as to operate only with respect to unspecified members of the ABI. It was submitted that, in the event that the Commission considered that the form of the order may require any further specification (such as the names of entities who would receive the benefit of the stay), ABI would not pursue its alternative application for a partial stay.

3 The variation in the quantum of the rates of pay arising from the decision represents no controversy as it is conceded that the Commissioner, upon application, increased the level of wages in accordance with the State Wage Case 2002 decision [2002] NSWIRComm 118. However, ABI challenges the date of operation of that variation (namely, 18 July 2002) because it is earlier than the 12 months anniversary of the variation of the award resulting from the State Wage Case 2001 (2001) 104 IR 438 (that is, earlier than 19 December 2001).

4 The decision at first instance is challenged essentially upon two bases: (1) The Commissioner misapplied Principles 8(b) and (c) of the 2002 State Wage Case decision by allowing a variation of the award earlier than the 12 month anniversary due to the purported consent of the parties to the award (an erroneous reliance on principle 2(e)). It is submitted, in particular, that the Commissioner could not have departed from the requirements of Principle 8(c), irrespective of the consent of the parties to the award, except when he did so as part of special case. (2) There was not, in any event, consent for the purposes of the wage fixing principles as ABI's objection to the variation robbed the proceedings of this characteristic. Having regard to the submissions and materials before the Commissioner, he should have found ABI was a party to the award whose opposition to the variation of the award rendered inoperative the provisions of 2(e) of the Principles (see State Wage Case 2002 at 40).

5 The primary bases for the applications were as follows: (1) ABI had a strongly arguable case; (2) The balance of convenience favoured the grant of a stay. If the appeal was successful and a stay was not granted, there would be a difficulty of recovering monies already paid to employees. (3) ABI also conceded that a condition may be placed upon any stay order so as to provide for appropriate weekly record keeping of the wage adjustments required under the challenged decision. This procedure would allow a ready dispatch of wage adjustments due if the appeal failed.

6 The Transport Workers Union of Australia, New South Wales Branch ("the TWU") opposed the application for a stay, although the TWU did not resist the grant of a partial stay.

7 The TWU opposed the stay upon the following grounds: (1) As to the prospects for appeal, the appeal was incompetent as ABI did not have standing to bring the appeal, having regard to the provisions of s187 of the Industrial Relations Act 1996. (2) The balance of convenience favoured the refusal of a stay as: (i) The Australian Retailers Association (ARA), being the primary employer interest under the award, and the TWU, agreed to an operative date for any variation to the award arising from the State Wage Case 2002 decision; which agreement was reflected in the Commissioner's decision; (ii) That agreement was foreshadowed at the time of the 2001 State Wage Case variation to the award without demur by ABI (it should be noted, in this respect, that Mr Ronfeldt advised that ABI was present during the course of those proceedings);. (iii) The members of ARA were, in fact, paying the monies awarded. The grant of a stay would require the cessation and reversal of payments made. (iv) ABI refused to reveal with any specificity its interest in the award. The TWU had requested ABI reveal that interest for the purposes of the stay hearing but the invitation was refused. (v) The imposition of conditions in relation to a stay may not be sufficient to adequately protect employees in the industry if the appeal failed. (3) ABI has not demonstrated a sufficient reason for the grant of a stay, particularly having regard to its undisclosed and arguably limited interests in the proceedings.

8 The ARA indicated that it adhered to the agreement it had reached with the TWU regarding the operative date. Neither it nor any other employer interest (other than ABI) sought a stay.

9 In this matter, I apply, as a statement of the general principle applicable to the consideration of an application for a stay, my decision in Campbells Cash and Carry Pty Ltd v National Union of Workers, NSW Branch (2001) 104 IR 400.

10 The balance of convenience favours, in my view, the grant of the partial stay sought in the alternative application by ABI. The primary application for a stay extends well beyond ABI's interests in the proceedings (save to its possible connection to general issues of principle) and would have the undesirable effect of halting (and, in fact, reversing) payments made by the members of the ARA who arguably have the substantial interest under the award and adhere to a now long standing arrangement (between the ARA and TWU) for an earlier operative date. It should be noted, in that respect, that the ARA does not itself seek a stay.

11 In granting the partial stay I should note that I have some considerable reservations. These concerns do not arise from the merits of the alternative application (which is warranted by the absence of opposition, with the issues as to a balance of convenience thus dissipating), but due to the resistance by ABI to any order which would require the specification of the entities in whose favour a stay order would be made. These difficulties have been largely overcome by the Commission fashioning orders which remove much of the uncertainty which would have otherwise attended the orders for a partial stay by providing for a certification process in the event that some dispute as to enforcement arises and a system of record keeping. It is otherwise inappropriate for the Commission to pass upon this resistance by the ABI to nominate its affected members, when that issue may have some connection with the appeal proper.

12 In the result, the Commission makes the following orders: (1) The variation of the award made by Connor, C on 18 July 2002 shall be stayed with respect to members of the ABI until 19 December 2002 or further order of the Commission. (2) An appropriate officer of the ABI shall within seven days of this decision prepare an affidavit specifying those members referred to in order 1 which affidavit shall not be required to be filed or served unless so required by further order of the Commission. Such members of the ABI shall keep records on a weekly basis until 19 December 2002 as to the monies which would accrue to their employees under the award if the appeal were to be unsuccessful. (3) The Commission makes the usual directions in the appeal, although, with the consent of the parties, will vary those directions in Chambers in the event that the date fixed for the appeal (which shall be announced in due course) requires an amended programme.

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.