Electrical Contractors Association of New South Wales v Electrical Trades Union of Australia, New South Wales Branch

LEGISLATION CITED: Industrial Relations Act 1996

Electrical Contractors Association of New South Wales v Electrical Trades Union of Australia, New South Wales Branch (2003)130 IR 284 CCH Australia Limited v Bowen (1998)79 IR 206 Akins v National Australia Bank (1994)34 NSWLR 155 CASES CITED: Austeck Pty Limited v Charalambos Atsalos (2003)128 IR 141 Knowles v Anglican Church Property Trust (1999)95 IR 380

HEARING DATES: 11/25/2004; 02/25/2005 EXTEMPORE JUDGMENT DATE: 02/25/2005

APPLICANT: Mr C Bolger of Counsel SOLICITOR/UNION: NSW Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union

LEGAL REPRESENTATIVES: RESPONDENT: Mr A Harding of Counsel SOLICITOR/UNION: Mr R Pegg Toomey Pegg Drevikovsky

JUDGMENT: 1 INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

FULL BENCH CORAM: WALTON J, VICE-PRESIDENT GRAYSON DP McLEAY C FRIDAY, 25 FEBRUARY 2005

NEW SOUTH WALES LOCAL GOVERNMENT, CLERICAL, ADMINISTRATIVE, ENERGY, AIRLINES AND UTILITIES UNION (ON BEHALF OF GEOFFREY TAYLOR) AND MM KEMBLA PRODUCTS

Application by New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union on behalf of its member Geoffrey Taylor for leave to appeal and appeal against the decision of Commissioner O'Neill given on 2 September 2004 in Matter No IRC 6001 of 2003. DECISION (ex tempore)

1 We have heard today an application by the appellant to adduce further evidence in the proceedings pursuant to s191(2) of the Industrial Relations Act 1996 and an application for leave to appeal. We have considered the respective applications in the context of the amended application filed in the proceedings on 26 November 2004.

2 Turning firstly to the application for leave to receive fresh evidence in the proceedings, we have considered the matter in light of the judgment of the Full Bench of the Commission in Electrical Contractors Association of New South Wales v Electrical Trades Union of Australia, New South Wales Branch (2003) 130 IR 284. We have had regard, in particular, to the discussion in that decision of the leading judgment of this Commission in this area CCH Australia Limited v Bowen (1998) 79 IR 206 and the decision of the Court of Appeal New South Wales in Akins v National Australia Bank (1994) 34 NSWLR 155.

3 Applying those principles to the present circumstances, we consider that leave should be granted pursuant to s191(2) to adduce fresh evidence in the appeal in the form of the affidavit of Geoffrey Taylor (and we note that the respondent seeks leave to have adduced as evidence if that affidavit is introduced to the proceedings, the affidavit of Mr Szczepanowski). We have reached that conclusion for two reasons. Firstly, we consider that, in part, the evidence sought to be adduced was not evidence which was available at the first instance hearing and secondly, and more substantially, that the evidence does have a sufficient degree of probability to have an impact upon the final verdict in light of the decision in Austeck Pty Limited v Charalambos Atsalos (2003) 128 IR 141 as to warrant its introduction.

4 It must be accepted that some of the material sought to be relied upon as annexures to Mr Taylor's affidavit would not strictly be admitted on the basis of those two reasons. It has also been allowed because it gives the appropriate background and context in which to consider evidence for which leave has been granted.

5 We turn then to the question of the application for leave to appeal and note at the outset, as we intimated during the course of the hearing, that we have declined leave to appeal with respect to that aspect of the appeal in which the appellant relies upon the operation of the relevant award to sustain jurisdiction.

6 As to the challenge to the Commissioner's finding that the relevant award did not apply to Mr Taylor's employment as dispatch supervisor, it is clear from a review of the material that it was a finding open to the Commissioner on the evidence. In any event, we are not persuaded that the requisite statutory test laid down by the act in s188(2) has been satisfied such as to warrant the grant of leave to appeal in that respect, given that the question of the operation of the award in this context raises no matters of general importance or application.

7 However, that leaves the more difficult question as to whether leave to appeal should be granted with respect to what has been loosely described in the proceedings as the "remuneration issue", that is the contention by the appellant (on appeal but not at first instance) that the remuneration of the applicant for relief under s84 of the act did not exceed the salary cap in s83(1)(6). We have come to the view that we shall grant leave to appeal in that respect but wish to emphasise in doing so that our considerations in that respect are finely balanced and it is a decision we have reached with some degree of difficulty.

8 There are compelling factors in this matter which would warrant the rejection of leave which were developed usefully in the submissions of Mr Harding for the respondent. In particular, he emphasised, we think correctly, the following considerations as weighing against the grant of leave. Firstly, that the appellant had failed to raise the question in any material way in the proceedings at first instance. By that we mean the question was effectively abandoned at first instance. We are not persuaded that any conduct of the proceedings by O'Neill C at first instance had overborne the applicant to such an extent that we should approach that issue differently, as a matter of principle, to the Full Bench in Knowles v Anglican Church Property Trust (1999) 95 IR 380.

9 Secondly, particularly in terms of the public interest test, there are a relatively small number of employees who may be affected by the outcome of the appeal.

10 Thirdly, we accept Mr Harding's submission as to what has been loosely categorised as the "utility point".

11 Fourthly, we confirm the principle as stated in Knowles that the mere agitation of a jurisdictional point in support of an application for leave to appeal will not of itself constitute sufficient basis to meet the statutory requirements in s188. Indeed, it might be said that in view of the written submissions exchanged between the parties that there was a good and sound basis for the respondent to raise that particular aspect of Knowles in the context of the jurisdictional point raised in relation to remuneration.

12 However, on balance we have determined that leave to appeal should be granted because we consider that the issues raised by the decision in Austeck have real implications for the present proceedings and in any event, raise significant issues as to jurisdiction of the Commission to hear applications under Part 6 of ch 2 of the act in the context of superannuation schemes, (particularly in relation to the timing of any assessment of the superannuation benefit vis-à-vis the jurisdictional restraints).

13 The fact that there may be a real issue arising in relation to the question of jurisdiction tips the scales in favour of the grant of leave to appeal, particularly when the interests of justice as arise in this matter are factored into the consideration.

14 We have mentioned reservations in reaching this conclusion. We would not wish as a matter of policy or practice to encourage the conduct of proceedings in the manner that the appellant has conducted the proceedings to date, either in relation to the first instance aspects or on appeal. There have been failures in the appellant's case which have inappropriately added to the delay and cost of these proceedings.

15 However, we must balance that consideration with the interests of justice and the considerations arising out of the judgment in Austeck bearing significantly, as they do, upon the question of jurisdiction in this matter (which as we have noted, have not been dealt with by the parties either at first instance or on appeal). Further, we consider that we are obliged to consider the Commission's jurisdiction in this matter.

16 We order, therefore, that leave to appeal be granted in relation to the appeal so far as it bears upon the remuneration question. Leave to appeal otherwise is refused.

17 That brings us to the merits of the appeal. Plainly the parties have commenced to develop their submissions in relation to the merits of the appeal but those submissions are incomplete.

18 We have in mind allowing a short period of time in which counsel would file written submissions in support of their respective views on the question or questions raised in Austeck, having regard to the fresh evidence now adduced in the proceedings. The matter would then proceed either by us determining the matter on the papers (having regard also to the oral submissions received today) or, alternatively, subject to what counsel now put, for the matter to be stood down for the hearing of some short oral submissions to accompany those written submissions. (Following a short adjournment the parties agreed for the matter to be dealt with on the papers and put forward the following timetable by consent: 18 March 2005 for the appellant's submissions; 8 April 2005 for the respondent's submissions and 22 April 2005 for any submissions in reply by the appellant.)

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