NEWCREST MINING v IRC of NSW & CFMEU

Industrial Relations Act 1996 Judiciary Act 1903 (Cth) LEGISLATION CITED: Supreme Court Act 1970 Workplace Relations Act 1996 (Cth)

CFMEU v Newcrest Mining Limited [2005] NSWIRComm 23 Notification under s130 by the CFMEU of a dispute with Newcrest Mining Limited [2005] NSWIRComm 77 CASES CITED: Alexander v. Cambridge Credit Corporation (Receivers Appointed) (1985) 2 NSWLR 685 New South Wales Bar Association v. Stevens [2003] NSWCA 95

Newcrest Mining - Claimant PARTIES: Industrial Relations Commission of New South Wales - First Opponent Construction, Forestry, Mining and Energy Union (NSW Branch) - Second Opponent

R Buchanan Q.C. and S Meehan for the Claimant COUNSEL: S Crawshaw S.C. and A Slevin for the Second Opponent

Blake Dawson Waldron for Claimant SOLICITORS: Australian Government Solicitor for Opponents

LOWER COURT JURISDICTION: Industrial Relations Commission of NSW

LOWER COURT JUDICIAL OFFICER: Walton J, Vice President

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40139/2005

23 MARCH 2005 Newcrest Mining v. Industrial Relations Commission of New South Wales and Construction, Forestry, Mining and Energy Union (NSW Branch) Judgment 1 BRYSON JA: By Summons of 4 March 2005 Newcrest claims an order in the nature of prohibition restraining Industrial Relations Commission of New South Wales (IRC) the first opponent from dealing with a notification IRC 5730 of 2004 of an industrial dispute by the second opponent referred to as CFMEU. Newcrest applies by Notice of Motion of 14 March for an order that proceedings in IRC be stayed until determination of the claim in the Summons. I heard the application on 21 March. IRC did not appear. CFMEU was represented by counsel. The Attorney General of NSW obtained leave to appear and was represented by the Solicitor General Mr Sexton Q.C. Mr Tamatea, whose employment is under consideration, is not a party. 2 Mr Brett Tamatea is employed by Newcrest at the Cadia Valley Gold Mine near Orange, New South Wales. He is a member of CFMEU. His terms of employment are regulated by an Australian Workplace Agreement (AWA) the parties to which are Newcrest and himself. As a disciplinary measure Mr Tamatea has been given a final written warning by Newcrest. Provisions of the AWA relating to "Fair Treatment Procedure" (cl.17) contain procedures for resolution of employee grievances by measures which begin with resolution within the work team through discussion with colleagues, then discussion with a supervisor, then by arranging a talk with the area superintendent, then by discussion with the department manager and thereafter if the matter remains resolved discussion with the general manager. After that there is to be mediation, with a mediator who is to be selected by agreement, and "both parties will participate in the mediation process in good faith." Clause 17.2 provides: "At any time during the Fair Treatment Procedure, you may elect to have the assistance of or be represented by another person at any time during the process." 3 CFMEU notified the Industrial Registrar (of IRC) on 23 September 2004 of an industrial dispute; the notification was given pursuant to s.132 of the Industrial Relations Act 1996 (NSW) (IR Act). The Notification referred to a question, dispute or difficulty concerning industrial matters, to Mr Tamatea being subject to disciplinary proceedings and requesting representation by the CFMEU and to the terms of the Fair Treatment Procedure; and claimed that Newcrest had denied Mr Tamatea the right to be represented by the CFMEU. This notification was amended on 5 November 2004, and the Amended Notification was to the effect that Mr Tamatea was a member of the CFMEU, was subject to a final written warning by Newcrest and "CFMEU seeks to discuss the final written warning with Newcrest. Newcrest is refusing to discuss the final written warning with the CFMEU." So the dispute notified is about whether CFMEU can discuss with Newcrest its member's concern about the final written warning. 4 Proceedings in IRC established that Newcrest claimed that IRC lacked jurisdiction to deal with this notification and dispute. CFMEU sought reference of the matter for decision by a Full Bench pursuant to s.193 of IR Act. After a hearing in which procedures under s.78B of the Judiciary Act 1903 (Cth) were followed and the Commonwealth and New South Wales Attorneys General intervened, the Full Bench of IRC in Court Session heard and determined a notice of motion by which Newcrest sought a declaration that IRC had no jurisdiction to deal with the dispute notification as amended, and an order that the purported dispute notification be set aside. The Full Bench gave judgment [2005] NSWIRComm 23 on 21 February 2005 and for reasons then extensively stated dismissed the Notice of Motion. Thereafter IRC appointed 9 March 2005 for a compulsory conference for conciliation of the dispute in the notification. When the conference came before IRC (Walton J, Vice President) on 9 March 2005 counsel for Newcrest informed his Honour that the present proceedings had been commenced in the Court of Appeal and were returnable on 14 March, and sought an adjournment until the hearing and determination of the proceedings in the Court of Appeal. Walton J refused to adjourn the proceedings, for reasons then stated [2005] NSWIRComm 77 and proceeded with the compulsory conference with a view to conciliation. His Honour made directions for lodgement of written submissions on a contention made by Newcrest that IRC cannot validly compel the attendance of employees of the claimant at the Commission. It appears that Walton J has under consideration whether he should issue summonses under s.165(3)(a) of IR Act requiring attendance of three named officers of Newcrest at the conference. Walton J also has under consideration whether to issue a certificate of attempted conciliation under s.135 of IR Act. In these circumstances Newcrest asked me, as an interlocutory measure, for an order staying proceedings in IRC pending determination of the claim for an order in the nature of prohibition. 5 Case law to which I was referred relating to stay of proceedings under challenge pending determination in the Court of Appeal relates to staying execution of judgments or enforcement of orders which are themselves under appeal. The principal authority on that subject is Alexander v. Cambridge Credit Corporation (Receivers Appointed) (1985) 2 NSWLR 685. Recent consideration in the context of enforcement or suspension of penal orders which are under appellate challenge is found in New South Wales Bar Association v. Stevens [2003] NSWCA 95 per Spigelman CJ [83 and following]. In my opinion judicial decisions relating to the enforcement of judgments which are under appeal cannot be readily applied to interlocutory stay of proceedings which are the subject of an application in the nature of prohibition, but in principle the inherent power of the Court re-conferred by s.23 of the Supreme Court Act 1970 extends to stay of proceedings in those circumstances. The power exists because it is necessary for the administration of justice, and it is to be exercised where it is necessary to exercise it. The power to order a stay is discretionary and such an intervention should not take place lightly; the outcome which is likely if there is no stay must be so adverse and severe that the attainment of justice requires interlocutory intervention. It must be clearly shown that it is likely that there will be some adverse consequence of allowing the proceedings under challenge to continue, and that the outcome will be so difficult to remedy or otherwise so adverse and severe in its impact that interlocutory intervention by the Court of Appeal should take place notwithstanding that there has not been an opportunity for full consideration. Questions of convenience are relevant, but not, in my view, simply as the balance of convenience: the test is a test of necessity and is not satisfied simply by assessing the relative convenience and harm for one side and the other. An intervention should not be made lightly in the present circumstances, where IRC, itself a superior court the decisions of which are protected from review by s.179 of IR Act, has after argument made a carefully considered and fully stated decision in favour of proceeding to deal with the business before it. 6 I am not able to foretell exactly when the application to the Court of Appeal will come on for hearing, or what time its consideration will require. Such business is usually given relatively prompt attention, but it may well be some weeks or perhaps several months before the proceedings are determined here. The business before IRC, a notification of an industrial dispute, has been pending since 23 September 2004. What the dispute notification is about, to look closely at its amended terms, is whether Newcrest should discuss Mr Tamatea's concerns about his final written warning with CFMEU. The departure from the agreed procedure in the AWA which is likely to follow if this Court makes no interlocutory intervention while clearly recognisable, does not seem to me to be very great or highly important. The AWA contains an express provision enabling Mr Tamatea to have representation, and if he chose specifically to appoint CFMEU to represent him for the purpose of the AWA procedure, he would be entitled to have CFMEU do so; and CFMEU would be entitled to be accepted in that capacity; or so it seems to me, giving the matter interlocutory consideration and not speaking finally. It is no great hardship or departure that Newcrest should deal with Mr Tamatea through the agency of CFMEU. The procedure of conciliation which Walton J has undertaken is certainly not the same as the procedure provided for by the AWA, but material similarities can be seen between the two processes; it does not seem to me to be strikingly unjust that, having agreed to participate in good faith in mediation before an agreed mediator, Newcrest should find itself participating under compulsion in conciliation before the Vice President or before a Commissioner of IRC. Matters might not appear to me in the same way if the business before IRC went further and a certificate of attempted conciliation under s.135 of IR Act were issued, or if there were any later stages after that; but those things have not happened. Compulsion of Newcrest to participate in conciliation proceedings, even though it could well extend to compulsion of named officers to attend, while it clearly is, on the view of Newcrest's rights put forward, a significant departure from Newcrest's rights, does not strike me as overall a marked injustice. 7 To reverse my point of view for a moment, it does not seem to me that it would be a marked injustice to Mr Tamatea, still less to CFMEU, if as an interlocutory measure they were denied access to IRC and remitted to the procedures under the AWA which Mr Tamatea has expressly agreed to follow; that is to say, I do not see either party as having a very strong claim of justice which is involved in the present interlocutory application. However it is Newcrest which is seeking my intervention and must satisfy me that intervention is appropriate. 8 Notwithstanding the entrenched positions which the parties appear to have adopted, it does not seem to me to be altogether unrealistic to hope that a process of conciliation might produce some good result in relation to Mr Tamatea's grievance and concern if all involved participate in conciliation with good faith. 9 I have already stated the discretionary considerations which appear to me to have the greatest claim on my attention. The arguments before me ranged much more widely, and included much examination of the strength and prospects of Newcrest's contentions to the effect that s.109 of the Constitution produces the result that provisions of IR Act relating to notification of disputes are invalid to some extent which includes the extent of the operation of the provisions of the AWA relating to grievance procedure. It was the opinion of the Full Bench that provisions of the Workplace Relations Act 1996 (Cth) (WR Act) to which the Full Bench were referred did not have that effect. To give force to an argument under s.109 it is necessary to identify the law of the Commonwealth with the operation of which in relation to the AWA the State law is inconsistent. 10 In their judgment the Full Bench referred to particularly provisions of WR Act s.170VQ and s.170VR. Section 170VG includes provisions requiring an AWA to include a dispute resolution procedure, which procedure may confer powers on the Australian Industrial Relations Commission (AIRC) to settle disputes between the parties to the AWA limited to the application or interpretation of the AWA; their Honours regarded the limitation as significant. (Mr Tamatea's AWA does not confer powers on AIRC). Section 170VQ(1) provides: "… An AWA operates to the exclusion of any award that would otherwise apply to an employee's employment" and subs.170VQ(4) provides: "During its period of operation, an AWA operates to the exclusion of any State award or State agreement that would otherwise apply to the employee's employment." Section 170VR(1) provides: "Subject to this section, an AWA prevails over conditions of employment specified in a State law, to the extent of any inconsistency." Further provisions of subs.170VR amplify and qualify this restriction. It was the view of their Honours that these provisions did not produce the result that IRC has no jurisdiction to deal with the purported dispute notification; this appears to be the consequence of a view that those provisions did not produce the result that provisions of the State law relating to dispute notification and conciliation were inconsistent with any provision in WR Act in its operation in relation of the AWA. 11 There may be several ways of perceiving the subject of inconsistency. Subsection 170VQ(4) and subs.170VR(1) expressly provide for exclusion of any State award or State agreement and subs.170VR(1) provides that an AWA prevails over conditions of employment specified in a State law to the extent of any inconsistency: these may operate according to their own terms on the basis of constitutional powers to legislate under the corporations power or some other part of the wide grasp for constitutional underpinning made by the use of the term "constitutional corporation" in s.4 of WR Act and by s.170VC. Section 109 may also or alternatively operate directly. I attempt no prediction of the outcome of Newcrest's claims in the Court of Appeal beyond recording that I regard it as fairly arguable, but by no means clear that s.109 of the Constitution has some relevant operation; but I would further say that I feel that more attention needs to be given to defining with complete clarity the contention that there is an inconsistency; this cannot be stated in a clear way without particularisation of all the provisions of the Federal law and their application to the facts and circumstances including the provisions of the AWA, and also all the relevant provisions and operation of the State law which are claimed to be inconsistent. The Court of Appeal is under the need of considering and complying with the provisions of s.78B of the Judiciary Act 1903. I was shown a notification dated 7 March 2005 directed to the Attorney General of the State and referring to s.78B of the Judiciary Act 1903; when this Court comes to appoint a hearing date full consideration of the adequacy of that notice will be required, and it should not be thought that I have approved or endorsed that notice. 12 It appears to me that a relatively narrow grievance and controversy have become caught up in what Newcrest and CFMEU regard as a question of principle; the question of principle must be fully considered and determined, but the actual inconvenience flowing from allowing proceedings to take their presently foreseeable course, while recognisable, does not appear to me to be so great as to justify an intervention which will compel IRC to desist from a course which its Full Bench in Court Session has carefully considered and decided upon. 13 For these reasons I have decided to dismiss the Notice of Motion with costs.

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