CFMEU v Newcrest Mining Limited

CORAM: Walton J Vice-President; Boland J; Staff J

CATCHWORDS: Costs - Industrial dispute - Constitutional issue - Reference to Full Bench of the Industrial Relations Commission - Full Bench reconstituted as Commission in Court Session to deal with jurisdictional issue - Whether appropriate in the circumstances to award costs - Intimate connection between jurisdictional issue and industrial jurisdiction of Commission - Parties ordered to bear own costs

Industrial Relations Act 1996 s 181 Judiciary Act 1903 (Cth) LEGISLATION CITED: Workplace Relations Act 1996 (Cth)

CFMEU v Newcrest Mining Limited [2005] NSWIRComm 23 Commissioner for Children and Young People v "A" (No 2) [2004] 132 IR 112 CASES CITED: Milne v Attorney General for the State of Tasmania (1956) 95 CLR 460 Oshlack v Richmond River Council (1998) 193 CLR 72

NOTIFIER / RESPONDENT ON THE MOTION Mr S Crawshaw SC with Mr A M Slevin of counsel Mr A Bukarica CFMEU

RESPONDENT / APPLICANT ON THE MOTION Mr R Buchanan QC with Mr S Meehan of counsel Solicitor: Ms H McKenzie LEGAL REPRESENTATIVES: BlakeDawson Waldron

INTERVENORS Commonwealth Mr R F Crow of counsel

Attorney General for New South Wales Mr N Perram of counsel

Labor Council of New South Wales Ms A Hughes

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: Walton J, Vice President Boland J Staff J

CONSTRUCTION FORESTRY MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH) v NEWCREST MINING LIMITED (No 2)

Notification under s 130 of the Industrial Relations Act 1996 by the Construction Forestry, Mining and Energy Union (New South Wales Branch) of a dispute with Newcrest Mining Limited re disciplinary proceedings

1 In CFMEU v Newcrest Mining Limited [2005] NSWIRComm 23 the Full Bench of the Commission in Court Session was concerned with the question of whether the Industrial Relations Commission of New South Wales had jurisdiction, pursuant to the provisions of Chapter 3 Part 1 of the Industrial Relations Act 1996, to exercise its powers in relation to an industrial dispute involving an employer and employee who were parties to an Australian Workplace Agreement made pursuant to the Workplace Relations Act 1996 (Cth). The Court held in the affirmative and dismissed the motion by Newcrest Mining Limited challenging the jurisdiction. 2 Subsequently, the respondent on the motion, the Construction Forestry, Mining and Energy Union (NSW Branch) ("CFMEU"), sought an order that the applicant on the motion pay the respondent's costs of the motion. In this respect, the parties filed written submissions. This judgment concerns the question of costs. 3 There was no issue as to the Court's power to award costs, a power that exists pursuant to s 181 of the Act. The issue went to the proper exercise of the Court's discretion in the circumstances of the case. 4 As the earlier judgment records, the CFMEU first notified the Industrial Registrar of the existence of an industrial dispute pursuant to s 132 of the Act in September 2004 (the notification of dispute was later amended in November 2004). The notification was allocated to Commissioner Cambridge who convened a compulsory conference of the parties for 7 October 2004. The earlier judgment records at [3] that at the conference, Newcrest indicated that it did not accept that the Commission had any jurisdiction to "exercise any powers under the Act in relation to this matter and those include powers of conciliation." The proceedings were adjourned to 14 October 2004 when Newcrest indicated that it had drafted a notice of motion reflecting its position regarding the Commission's lack of jurisdiction and that it intended to pursue that motion. The CFMEU indicated that upon the motion being filed in the Industrial Registry it would be seeking a reference of the matter to the President of the Commission for decision by a Full Bench of the Commission pursuant to s 193 of the IR Act. 5 At [4] and [5] of the earlier judgment the Full Bench stated: 4 The proceedings then took this course. The respondent served Notices under s 78B of the Judiciary Act 1903 (Cth) on the Attorneys-General of each of the States and Territories and the Commonwealth. The Commonwealth and the New South Wales Attorney-General intervened in the proceedings. A Full Bench of the Commission was duly constituted.

5 Whereas the reference under s 193 sought a reference to a Full Bench of the Commission as opposed to the Commission in Court Session, it was the general consensus of the parties at the commencement of the hearing of the respondent's motion that it would be appropriate, pursuant to s 176 of the IR Act, to reconstitute the Full Bench of the Commission as a Full Bench of the Commission in Court Session. This was done. It was also considered appropriate that the matter should be dealt with by the Commission in Court Session invested with the judicial power of the Commonwealth pursuant to s 39(2) of the Judiciary Act 1903 (Cth). The Industrial Relations Commission in Court Session is a superior court of record: see s 152 of IR Act. See also Taudevin v Egis Consulting Australia Pty Ltd (No 2) (2001) 131 IR 124; Veta Limited v Evans [2004] NSWIRComm 336. What was sought by the respondent was a declaratory order under s 154 of the IR Act, and the making of such orders is within the exclusive jurisdiction of the Commission in Court Session. 6 It may be seen that whilst the matter was initially before the Commission, for the reasons expressed in the earlier judgment on jurisdiction it was considered appropriate for the matter to be heard and determined by the Commission in Court Session. In the ordinary course, it might be expected that the usual rule regarding an award of costs would apply, that is " … a wholly successful defendant should receive his costs unless good reason is shown to the contrary": Milne v Attorney General for the State of Tasmania (1956) 95 CLR 460 at 477. See also Oshlack v Richmond River Council (1998) 193 CLR 72. 7 However, there are particular considerations relevant to the issue of costs in these proceedings. Firstly, the exercise of powers under Chapter 3 Part 1 of the Act to deal with industrial disputes lies with the Commission. No costs may be awarded by the Commission when exercising power under Pt 1 of Ch 3 of the Act, except in the limited circumstances defined by s 181(2), which are not relevant here. If a question of jurisdiction arises, it is for the Commission to satisfy itself that it has jurisdiction. If the matter had remained before the Commission, as opposed to the Commission in Court Session, there would be no order as to costs. In the present case, the parties considered it appropriate for the Commission in Court Session to hear the jurisdictional issue because of the nature of that issue and because the motion sought declaratory relief pursuant to s 154 of the Act. 8 In Commissioner for Children and Young People v "A" (No 2) (2004) 132 IR 112 the Full Bench considered a motion seeking orders that the respondent pay the appellants' costs of the appeal and costs associated with the s 154 application at first instance. The Full Bench observed at [26]: 26 That proceedings would generally arise in the industrial jurisdiction of the Commission is of considerable significance when approaching the issue of costs in proceedings under s 154, as has been touched upon in two recent decisions of the President: see Health and Research Employees' Association of New South Wales v Baptist Community Services NSW and ACT (2002) 122 IR 178 at 190 and Police Association of New South Wales v Commissioner of Police (2002) 123 IR 301 at 325. As his Honour observed in those decisions, observations with which we would agree, as a matter of practice, the fact that declaratory orders are sought in relation to issues that would generally fall within the industrial jurisdiction of the Commission, or in relation to issues that could truly be identified as having an intimate connection with the Commission's industrial or arbitral jurisdiction, is a consideration that would generally be relevant to the exercise of the discretion to award costs. The observations of his Honour in the latter case were implicitly approved by the Full Bench in New South Wales Teachers Federation v Managing Director NSW TAFE Commission (2003) 123 IR 384 at 394. 9 We consider the jurisdictional issue raised in these proceedings was intimately connected with the industrial jurisdiction of the Commission and that it would be inappropriate to exercise our discretion to award costs simply because the nature of the issue called for the matter to be dealt with by the Commission in Court Session, a course not put in issue by any party. 10 Secondly, the issue raised by the motion raised a substantial question about the Commission's powers to deal with industrial disputes in the face of the provisions in Part VID of the Workplace Relations Act and the operation of s 109 of the Constitution. Both parties had a strong interest in having the jurisdictional issue determined, but we consider there was also a wider public interest in having a matter of general importance determined that went beyond the private interests of the parties. 11 Accordingly, we consider the appropriate outcome is that the parties bear their own costs of the proceedings and we so order.

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