(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.
30 The foregoing principles were referred to with approval in Euphoric Pty Limited v Ryledar Pty Limited and Anor (2002) 117 IR 1 at [8]-[14] (per Wright J and Walton J, Vice President). At [11]-[14] their Honours stated:
11 In order to succeed in a motion to dismiss on a preliminary basis a summons for want of jurisdiction, a respondent must demonstrate that there is no power in the Commission to grant any relief sought in the application.
12 However, as indicated in the fifth proposition cited above from Virtue "refusal of relief at the threshold [that is on a basis of a preliminary point or motion] will not finally determine that jurisdiction exists for any order which the Court might make between the parties". In other words, it remains open to a respondent unsuccessful on a preliminary motion to maintain its arguments as to lack of jurisdiction for the purposes of the final hearing.
13 Further, as observed in the seventh proposition and notwithstanding the public interest in having struck out at an early stage proceedings for which there is no jurisdiction, "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 [is] clearly demonstrated".
14 The jurisprudence of this Court represented by the judgment of the then Full Industrial Court in Nagle v Tilburg , and the cases which have followed it, has been important in controlling a practice which had developed in the jurisdiction of some respondents too readily raising jurisdictional arguments at an early stage, at times with at least the appearance of a forensic tactic or an attempt to place logistical difficulties in the way of a less well-resourced applicant. The decision in this matter should not be seen as, or become, a basis for the rigour which has hitherto been exercised in the jurisdiction to be lessened. These observations are made only to emphasise the decision in this matter has depended on the very particular and relatively rare set of circumstances raised by these proceedings. It should not be interpreted or considered by those who practice in the jurisdiction as signifying any lessening of the stringency with which the approach in Nagle v Tilburg will be adhered to.
31 Unless the respondent is able in these proceedings to clearly demonstrate that the Court has no jurisdiction in respect of the applications, the Court would not dismiss the applications at the threshold.
Whether CBA Award applied to first transmission
32 The respondent in these proceedings has contended the Court has no power to grant the relief sought because, by a combination of s 109 of the Constitution, s 17 of the Workplace Relations Act and the CBA Award, the Court's jurisdiction is ousted. In other words, the CBA Award covers the field in so far as long service leave is concerned and there is no room for the operation of any State law relating to long service leave.
33 Taking the applicants' cases at their highest, as the respondent has accepted I should in these interlocutory proceedings, it was asserted by the applicants that when they took up employment with the respondent Bank in 2001 the continuity of their service with the franchise company or companies for the purpose of determining long service leave entitlements under the CBA Award was not broken by the second transmission. That is, it was asserted that the respondent had accepted that continuity of the service of the applicants was maintained upon the occurrence of the second transmission.
34 It was further asserted, however, that the respondent had refused to accept that continuity of the service of the applicants was maintained upon the occurrence of the first transmission. That is the transmission from Colonial State Bank to the franchise company or companies in 1997 (for the second and third applicants) and in 1998 (for the fourth and fifth applicants).
35 The applicants contended that neither the CBA Award nor its predecessor had any application at the time of the first transmission; that the relevant transmission of business was from the Colonial State Bank to the franchise company or companies; that none of the applicants were employees of the respondent in 1997 or 1998 and nor were they employees of any employer whose business was transmitted to the respondent at those times.
36 Mr Hatcher for the applicants contended that whilst the CBA Award did not apply to the applicants' employment at the time of the first transmission, the provisions of s 4(11) of the Long Service Leave Act did apply. Whether that contention can be made out is a matter to be determined in the substantive proceedings.
37 What the respondent contended, however, was that the CBA Award currently applied to the applicants' employment (a contention the applicants resist) and, by virtue of cl 3.8 of the Award, the applicants were precluded from having any service prior to the first transmission counted for the purpose of determining an entitlement to long service leave. Clause 3.8 is in the following terms:
3.8 Continuous service