Express Data (a Division of Dimension Data Australia Pty Ltd) v NUW [2007] NSWIRComm 284 | Case summary

1 On 1 March 2007, the General Secretary of the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("the Union") notified the existence of an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 with the Department of Education and Training ("the Department") concerning a question, dispute or difficulty as to, inter alia, the failure of the Department to provide work to Ms Susan Benfell at the Tumut Public School in the school year 2007. 2 Ms Benfell had been engaged as a Temporary Teacher's Aide Special at that school under the Crown Employees (School Administrative and Support Staff) Award since 1997. She commenced work in the Department in 1995. 3 The Union specified the subject matter of the industrial dispute in the notification (Matter No IRC 272 of 2007) as: 4. The question, dispute or difficulty concerns the following industrial matter: a. Sue Benfell was employed as a Teacher's Aide (Special) at Tumut Public School for 9 years 9 months and 25 days and was advised of NO work at the school in 2007. b. Up until Term 3 2006 Sue Benfell was working 45.25 hours per fortnight. In term 4 this was reduced to 23.20 hours per fortnight. There was NO consultation regarding the reduction and loss of hours. c. The usual practice regarding loss of hours in schools is through consultation and agreement of staff or last on first off principle. d. The Association has had discussions with the Department concerning the loss of hours for Sue Benfell, however, have failed to resolve the issue. 4 At the commencement of the proceedings before Tabbaa C, the Union filed an application under s 84 of the Act. That application was filed on 8 April 2007 and claimed, as the only form of relief sought, the reinstatement of Ms Benfell to her "former position". In the section of the application requiring the applicant to specify why her dismissal was harsh, unreasonable or unjust, the applicant simply referred to "Matter No IRC 272 of 2007". It is plain, therefore, that the s 84 application was seen by the Union as an adjunct to the dispute notification. Further, during the course of the hearing before Tabbaa C, the industrial dispute and the s 84 proceedings were joined. 5 On 24 August 2007, the Department filed an outline of contentions by which it sought that the s 84 application be dismissed on a preliminary basis. It sought to do so on jurisdictional grounds. It was that application which ultimately led to the reference to this Full Bench. In that sense, it underpins the present proceedings. 6 However, when the parties filed submissions in preparation for the hearing of the matter before the Full Bench it became clear that the Union resisted the strike out application, not merely with a rejoinder to the jurisdictional challenge per se but also with the contention that the strike out application should be dismissed having regard to the principles applicable to such applications as stated in Nagle v Tilburg (1993) 51 IR 8 and Virtue v NSW Department of Education (1999) 92 IR 428. 7 The Union's reliance upon the principles stated in Nagle v Tilburg, was based, in part, upon the confinement of the Department's jurisdictional challenge to the s 84 application and not to the dispute proceedings; it being contended that, even if the motion was successful, it could not entirely dispose of the proceedings. This was because the dispute proceedings conferred, it was submitted by the Union, ample power upon the Commission to resolve all issues in contest associated with or arising out of Ms Benfell's employment with the Department. 8 In its written submissions in reply, the Department did not mount a challenge to the Commission's jurisdiction in relation to the dispute notification. Nor did it contend outright that those proceedings may not have the capacity to address all relevant issues arising from the respective proceedings. However, in oral submissions made today, the Department did reserve the right to argue as to the scope of the powers of the Commission under s 136(1)(d) of the Act. 9 With the issues in the proceedings having been joined in the aforementioned manner, the Full Bench decided that it would first hear the parties upon the questions raised by the Union in reliance upon the principles stated in Nagle v Tilburg and Virtue. It is that issue which is the subject of this decision. 10 The starting point of our analysis in this respect is the decision of Wright J, President, in Virtue. That decision, as was its predecessor, Nagle v Tilburg, was concerned with proceedings under s 106 of the Act. However, as a matter of general principle, it is also applicable to the resolution of the issues raised by the Union in this matter. Indeed, we consider the decision in Virtue to be an important, seminal statement of the principles relevant to strike out applications upon jurisdictional grounds and, for that reason, we have extracted substantial parts of that judgment as follows: Principles applicable As is acknowledged by the respondent in its submissions in relation to the Motion, the relevant principles in relation to the striking out of a summons filed under s 106 on an interlocutory basis where it is alleged that the Commission lacks jurisdiction are comprehensively set out in the judgment of the Full Industrial Court in Nagle (t/as W D and J L Nagle & Sons) v Tilburg (1993) 51 IR 8 at 10-12 and in the authorities relied upon in that judgment ( Stevenson v Barham (1970) 136 CLR 190; Majik Markets Pty Ltd v Brake & Service Centre Drummoyne Pty Ltd (1991) 39 IR 169; 28 NSWLR 443; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125). Those principles may be summarised as follows: (1) The discretion of a court to determine a case at an early stage, when appropriate, has been repeatedly accepted. (2) As a general rule it is desirable that an objection to jurisdiction be determined as early as circumstances will conveniently admit so that the tribunal does not embark on a hearing which it lacks authority to conduct. The course of a court entertaining a challenge to jurisdiction in a preliminary or threshold way is often a sensible one where a party has a substantial threshold argument which, if it succeeds, will knock out the claim and save the costs and inconvenience that attend a protracted hearing of proceedings on the merits. (3) However, a further general proposition is that all issues arising should be dealt with in the substantive proceedings unless the basis for a challenge, either on jurisdictional grounds, or for lack of a reasonable cause of action, be clearly demonstrated. (4) Threshold relief of the kind sought here must be conserved to a clear case where it is plain that the invocation of the jurisdiction impugned is wholly misconceived or, upon analysis, lacks an arguable legal foundation. (5) Necessarily, refusal of relief at the threshold will not finally determine that jurisdiction exists for any order which the Court might make between the parties. This is because, to secure relief, the claimants must demonstrate that no order could be made which would be within jurisdiction. The resulting burden is a heavy one. (6) Accordingly, whilst it is desirable for a case to be determined at an early stage it is only open to do so at the appropriate stage of the proceedings. That is, where the facts, either established by evidence or plainly agreed in terms, enable the Court to determine what the contract or arrangement is or, at least, the parameters of the contract or arrangement. In other words, unless the facts are sufficiently established to enable the Court to be satisfied it has the necessary material to reach a clear and final decision on the question then the appropriate stage has not been reached for such a determination to be made. (7) Similarly, the jurisdiction to terminate an action summarily for want of a cause of action is to be sparingly employed and ought not to be used save where the lack of the cause of action was clearly demonstrated. In those circumstances, for the respondent to succeed, it must demonstrate that there is no power in the Commission to grant any relief to the applicant. It is not material that the power to grant the relief sought arises from a different statutory source to that relied upon by the applicant: cf R v Graham; Ex parte Moore (1977) 138 CLR 164at 173. There are exceptions to that proposition. For example, where the only statutory power available is subject to jurisdictional preconditions which are not met: Downey v Trans Waste Pty Ltd (1991) 172 CLR 167 at 171-172; the exercise of power required represents an attempt, in the context of a statutory prohibition, to do indirectly what cannot be done directly: see Container Terminals Australia Ltd v Xeras (1991) 23 NSWLR 214 at 217; or the statutory criteria relevant to the exercise of a discretion are not appropriately taken into account: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-42. However, none of those exceptions is, or is presently, applicable in these proceedings.

11 Here the Union must succeed in its challenge to the Department's motion, in our view, if it demonstrates that the Commission arguably has the power to grant the relief sought by the Union, in whole or in part, under the dispute proceedings (Pts 1 and 2 of Ch 3 of the Act). We do not agree with the Department's assertion that if its motion to strike out the s 84 proceedings is correct, it must be dealt with at the outset of the proceedings. This is because, if the determination of that issue cannot entirely extinguish any available basis for relief sought by the Union (even if that is because that relief is available under an alternative source of power), it is premature and inappropriate for adjudication at the threshold, having regard to the principles stated in Virtue. This conclusion is a fortiori when account is taken of the fact that the respective proceedings have been joined and a source of power to resolve the proceedings in Matter No IRC 272 of 2007 arises under Ch 3 of the Act. This latter consideration is important because of the significance of the Commission's dispute settling powers to the resolution of issues such as those arising in this matter. Dispute proceedings should not be diverted nor should the Commission's dispute resolution functions and powers be depreciated by reference to more specific powers available to the Commission under the Act which may intersect with part of the subject matter of those proceedings: Express Data (a Division of Dimension Data Australia Pty Ltd) v NUW [2005] NSWIRComm 140 at [7]. 12 Thus, in these proceedings, having regard to the point they have reached, the question remaining for the resolution of the strike out motion is whether the Commission has any arguable power (as here) under ss 136 or 137 of the Act to grant relief to the Union's member in these matters. If it does, then, on the principles in Virtue, the motion should be dismissed. 13 In our view, there is an arguable basis for concluding that the Commission has power to grant the relief claimed in this matter under Ch 3 of the Act, see, for example, the decision of Boland J in Police Association v NSW Police (No 2) (2005) 139 IR 103 and the principles espoused in Sydney Water v ASU (2005) 146 IR 388.

Express Data (a Division of Dimension Data Australia Pty Ltd) v NUW

At a glance

Court

Decision date

Before

Source

Judgment (17 paragraphs)

Parties

Cases Cited (12)

Cited By (1)