Garde v WorkCover Authority of New South Wales

RESPONDENTS: LEGAL REPRESENTATIVES: Mr P M Kite SC Employers First (Mr Tim McDonald)

Mr Tonkli Shop, Distributive and Allied Employees Association, New South Wales Branch

FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President REDMAN C

Matter No IRC 2867 of 2002 AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS' UNION, NEW SOUTH WALES BRANCH AND EMPLOYERS FIRST AND ANOTHER Application by Australian Liquor, Hospitality and Miscellaneous Workers' Union, New South Wales Branch for leave to appeal and appeal against a decision of Commissioner Cambridge given on 29 April 2002 in Matter Nos IRC 6047 of 1996 and IRC 7688 of 2001 DECISION OF THE COMMISSION (Extempore) [2002] NSWIRComm 207 1 This is an application for leave to appeal and subject to leave being granted, an appeal by the Australian Liquor, Hospitality and Miscellaneous Workers' Union, New South Wales Branch (the appellant) against a decision of Cambridge C of 29 April 2002 in which the Commissioner made, pursuant to s 16(4) of the Industrial Relations Act 1996, an interim award in terms of a document tendered before him marked exhibit A15. 2 Upon the hearing of the matter today, the appellant confined its contentions to the following two areas:

1. The Commissioner's reasons for decision were so inadequate that appellate intervention was required.

2. The Commissioner erred in fact and in law in concluding that there existed "special circumstances" pursuant to s 16(4) of the Industrial Relations Act for the making of the interim award. 3 It is necessary to refer in some short detail to the circumstances which led to the making of the interim award which occurred on the date indicated. On that date, in making the interim award, Cambridge C made the following observations: COMMISSIONER: Yes, thank you. The Commission is prepared to make an extempore determination in this matter. The Commission is prepared to make, pursuant to section 16(4) of the Act, an interim award in the terms as set out in exhibit A15. The interim award will operate on and from the first pay period to commence on or after today, 29 April 2002, and remain in force for period of six months thereafter.

Special circumstances required for the making of an interim award are those as alluded to earlier by the Commission during proceedings held in December of last year. The parties are directed to confer and to provide the Commission with a program for further hearing of these matters to enable there to be a final award made in due course.

In that regard, the parties are requested to provide a report-back including such a program which, in terms of further proceedings, for that purpose the Commission fixes a report-back in these matters for 11.30 am on Friday 5 July 2002. On that basis the proceedings now stand adjourned. 4 Earlier that day the advocate for Employers First, which represented the various employer interests, renewed its application for the making of an interim award and made submissions in support of the application. The application had originally been made on 28 March 2002 when Mr McDonald, appearing for Employers First, made submissions which included the following: McDONALD: Commissioner, we seek the interim award be made under section 16 subsection (4), and we say that the special circumstances that would justify the making of an interim award are these: firstly what I have said; that the award on the last occasion was an agreed award and that was subject only to the union putting it to meetings of its members where it would recommend that document. The Commission on the last occasion was of a mind to make an interim award but did not do so after Mr Acev urged the need to put it to his members and we did not oppose that approach.

The only reason that that hasn't occurred - as the union undertook to do to the Commission and undertook to do to the employers, and we had a reasonable expectation based on those undertakings that that would occur, and unless there was opposition from employees and those points of issue would be resolved by the Commission, that the award would be made today. We shouldn't be disadvantaged by the fact, nor should the employees in the industry.

It's clear from the evidence so far, and I think it's conceded by all at the Bar Table and reflected in observations made by the Commission in the proceedings, that the existing industrial regulation of university unions has to be improved. There is a multiplicity of apparently applicable industrial instruments and that's clearly undesirable.

The award that has been put forward not only is an agreed award but one might say it's a fairly conservative award; there's nothing novel in the approach that has been taken. It reflects substantially the Restaurant Employees (State) Award, the Shop Employees (State) Award and some provisions of awards that Mr Vance has proposed, such as the picnic day provision from the General Services Award. The Commission is not asked to do anything unusual. They are mainstream awards of this Commission, very important awards that have had substantial consideration by the Commission over the years. The Commission could proceed safely and be cautious in making the interim award.

Insofar as the employees are concerned, there are savings provisions in the award in clause 37. They are extremely protective savings clauses, more protective than any savings clause that I think would appear in any other awards of the Commission. That was the result of the agreement, so no employee can be disadvantaged in their terms and conditions by this award being made.

In terms of the union's position, if there's something that they say needs to be changed in the award or if they want to mount a full argument against the award, they may do so. The fact that an interim award is in place doesn't stop that from occurring. It seems not only has the union not consulted with the employees concerned, but now they come along - and leave us waiting while they go and file the motion - to say that they want to pursue the Club Employees Award. That's a fundamental change to what was done last time, and one would have thought that they would have at least consulted with the employees concerned before taking that approach." 5 Notwithstanding those submissions, the Commissioner acceded to the appellant's application to defer the application made. It was stood over for further consideration on 29 April. The reference in Mr McDonald's submissions on 28 March to earlier proceedings was to a number of hearings in December 2001 which cumulated on 13 December 2001 in exhibit A15 being tendered as a document the subject of a significant measure of agreement between the parties. The relevant caveat on the measure of agreement for present purposes is that expressed by Mr Acev, who was then appearing for the appellant, when he said: ACEV: Commissioner, I would wish to affirm on the record again that my position - and certainly the members that we cover - is that the document, although being a mutual document arising from lengthy conciliation, is still subject to ratification by the rank and file. I mean, I don't know whether that's been lost up in the enthusiasm and whether Mr McDonald has a greater expectation as to the swiftness that this document can move, but I just wish to formally place on the record again that any document arising from the conciliation is still subject to that ratification. 6 It may be observed that no meetings for the purpose identified were held between 13 December 2001 and 28 March 2002. On 29 April this year, when the Employers First application was renewed, the positions of the respective unions were as follows. The Shop Distributive and Allied Employees Association New South Wales Branch (SDA) as observed by Mr Barry, (who on that day was appearing for the appellant) neither supported nor opposed an interim award being made; however, the SDA advised by letter (which was before the Commissioner) that if an interim award was made, it should be made in terms of exhibit A15.

7 The Property and Services Division of the LHMWU through its advocate, Mr Vance, supported Mr Barry's submissions but added: However, in the event that the Commission is minded to make an interim award, like the SDA, we request that - or we submit - that that award ought not be in terms other than that in exhibit A15. 8 The appellant's position as to the application was expressed by Mr Barry in his submissions to Cambridge C, in this way: The position of my organisation is quite simply, that we oppose the making of an interim award and we oppose the application that was the subject vehicle from Employers First in relation to the application that's currently before this Commission. 9 It might be interposed that the position of the SDA in the proceedings today was to similar effect as that in April, except that, as the proceedings today were an appeal, Mr Tonkli appearing for the SDA advised the Commission that his union still neither supported nor opposed the appeal or the making of an interim award but if an award was to be made, it should be in the form made by Cambridge C.

10 Cambridge C on 24 May 2002 issued, apparently without notice, a further document in the proceedings entitled "Interim decision" which in its first paragraph stated that it was "Issued further to the Ex Tempore Determination made in these matters during proceedings held on 29 April 2002". In that document, the Commissioner shortly rehearsed the history of the proceedings and set out observations he had made which were recorded in the transcript on 9 October 2001 (in a passage which apparently, during the course of the proceedings on 29 April he had inadvertently referred to as having been made at a different time in 2001): COMMISSIONER: What I propose to do now is to make what I will describe as some observations which I hope provide some benefit to the parties. I stress that these are observations made in passing and in no way should be taken as concluded views in this matter. The observations are not issued as a statement, but it may be that I incorporate these comments in the form of a statement that I may issue between now and the occasion of the next proceedings.

My observations are as follows. The need to improve the industrial regulation in this industry sector is apparent. Certainly a multiplicity of apparently applicable industrial instruments is clearly undesirable. However, it appears that various aspects of the application which seem to provide for either actual or potentially lower or inferior rates of pay or other conditions of employment is unreflective of what I observe to be the harmonious, good-natured and generally sound employment environments present at the various universities inspected.

It would be highly regrettable if, as an obviously unintended consequence of this application, any of those sound industrial environments were damaged. 11 After that passage (which is set out in paragraph [4] of the decision) the Commissioner dealt further with the course of the proceedings and concluded the document (except for a reference to further scheduling and programming of the proceedings) in the following way: [10] In respect to the special circumstances required for the making of the Interim Award, the Commission refers to and adopts the earlier cited observations made and recorded in transcript of 9 November 2001. In particular, the Commission has made the Interim Award in order to avoid the ongoing and undesirable operation of a multiplicity of potentially applicable industrial instruments which have historically applied to those persons and organisations who would be subject to and bound by the award.

[11] The Commission has also had regard for, amongst other things, the following further special circumstances of this case: · the length of time involved with proceedings in this case which commenced in 1996; · the apparent but conditional agreement of all Parties that appeared to exist regarding Exhibit A15; · the extended time provided to the ALHMWU to undertake ratification processes in respect of Exhibit A15; · the savings and protection provisions of Exhibit A15, particularly the terms of Clause 37. Savings.

[12] Consequently the Commission has determined that these and other factors provide the special circumstances necessary for the making of the Interim Award. 12 We now return to the bases referred to earlier upon which the appellant advanced its application for leave to appeal and appeal. In light of the above recital of the circumstances, and to provide our reasons for refusing leave to appeal as to the first issue, we consider that the appellant's contentions on it are devoid of merit. No basis has been demonstrated that in substance the document of 24 May 2002 did not set out the Commissioner's conclusions in a manner consistent with the course of proceedings up to 29 April 2002, including the observations made by the Commissioner prior to the interim award being made, nor has it been demonstrated the matters in the document were not in substance the Commissioner's reasons for making the decision and the interim award. We consider that the document does in substance record the Commissioner's reasons for making the interim award on 29 April 2002.

13 Indeed, counsel for the appellant fairly and properly conceded that if the document of 24 May 2002 were accepted as the Commissioner's reasons, the first ground of attack could not be sustained. However, in making the observations we have, we should nevertheless make plain that what occurred in this matter represents an undesirable course and should not be repeated.

14 The course adopted (that is, to issue reasons, or further reasons, without notice or without reserving the possibility of doing so when the decision is given or the award made) is liable to lead to error and could have led to leave to appeal being granted in this matter except for the very particular circumstances which we consider exist in this matter. We should also make a further observation on this matter. The appellant relies upon the judgment of the Court of Appeal in Palmer v Clarke (1989) 19 NSWLR 158 for the proposition that it is not legally available for a member of the Commission sitting in its arbitral jurisdiction to give a decision or make an award and provide reasons subsequently for the decision given, or for the award made.

15 Although it is not appropriate to express a final view on this issue in these proceedings, we doubt that authority applies in the Commission's arbitral jurisdiction. Certainly it has been held in a judgment of the Commission in Court Session with which we respectfully agree, that the judgment of the Court of Appeal in Palmer v Clarke, which dealt with the situation in the District Court, did not apply in proceedings before the Commission in Court Session. See Hardacre v Health and Research Employees' Association of New South Wales (1999) 91 IR 145 at 147 to 148, in which his Honour the Vice-President applied the reasoning and approach of the Full Industrial Court in Garde v WorkCover Authority of New South Wales (unreported, 26 November 1992) which dealt with the situation in the former Industrial Court.

16 As to the other issue raised by the appellant, we do not consider that these proceedings provide an appropriate vehicle to deal comprehensively with the construction and application of the phrase "special circumstances" as it appears in s 16(4) of the Industrial Relations Act. We do not consider that the circumstances of this appeal as raised in the argument today warrant the grant of leave to appeal. However, it is clear that an important consideration in deciding whether to make an interim award is whether the interim award will "embarrass the final result" of the final award which might be made: see, for example, Re Public Hospital Nurses (State) Award [2002] NSWIRComm 100 at paragraph [35] and Re Crown Employees (Police Service of New South Wales Commissioned Police Officers, Local Area Commander and LAC Duty Officer) Award (unreported, Wright J President, 10 July 1998 at 2 - 3.

17 It is clear from the passages cited earlier from the record of first instance, particularly from the submissions made on behalf of Employers First, that the interim award cannot be said to be one which will "embarrass" any final award which might be made. We also observe in this respect that senior counsel for that organisation affirmed during the course of the proceedings before the Full Bench today that this remained the situation in his client's view.

18 As we earlier indicated, we consider that leave to appeal should not be granted in these proceedings, and we therefore make the following orders in disposition of them: 1. Leave to appeal refused. 2. Appeal dismissed. ______________________

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