Notification under section 130 by Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch of a dispute with North Sydney Leagues Club and another re alleged breach of award [2002] NSWIRComm 299

LEGAL REPRESENTATIVES: RESPONDENT: Mr G J Hatcher of Senior Counsel for the North Sydney Leagues Club SOLICITOR: Mr C Graham, Acuitilegal

JUDGMENT: - 2 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP

Matter No IRC02/4066 NOTIFICATION UNDER SECTION 130 BY THE AUSTRALIAN, LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, NEW SOUTH WALES BRANCH OF A DISPUTE WITH NORTH SYDNEY LEAGUES CLUB AND ANOTHER RE ALLEGED BREACH OF AWARD DECISION [2002] NSWIRComm 299

1 This decision is further to the Commission's ex tempore decision of 30 October 2002 in which I dismissed this matter as an abuse of process.

2 The history of this matter commences with a dispute lodged under s130 of the Industrial Relations Act 1996 ("the Act") by the Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch. The dispute is with the North Sydney Leagues Club Ltd ("the Club") in respect to the introduction of finger scanning equipment at its North Sydney and Tweed Heads premises, for the purpose of recording employees start and finishing times. The dispute was expressed as follows: (a) The failure of the Respondent Clubs to adhere to the status quo as provided for in Clause 30 of the Award. (b) The failure of the Respondent Clubs to adhere to the provisions of Clause 5 of the Award. (c) The failure of the Respondent Clubs to adhere to the requirements of s.129 of the Industrial Relations Act 1996.

3 The dispute was listed for compulsory conferences on 18 and 19 July 2002. Mr P James appeared for the notifying union and Mr S Schmitke appeared for the Registered Clubs Association on behalf of the respondent Club. A further compulsory conference on 29 July 2002 resulted in the matter being set for arbitration and the issuance of a recommendation by the Commission declining to maintain the status quo pending the arbitration proceedings on 30 October 2002. A certificate of attempted conciliation (s135) was signed and forwarded to Wright J President. Directions were issued for the filing and service of evidentiary material.

4 On 17 October 2002, the Commission listed the matter for further directions after the receipt of correspondence from the respondent's solicitors (Ex "2"), in which the Union had been put on notice by letter of 13 September 2002 (Ex "1") that the Commission may not have the jurisdiction to hear the matter in the form it had been notified.

5 After a short hearing the transcript records as follows: HIS HONOUR: What I propose to do is to direct the Union to file and serve by 4pm on 24 October the form of relief that is sought in any arbitration of this dispute by the Commission and to direct the parties to confer as to the conduct of the proceedings on the dates that have been set and to grant liberty to apply at short notice to either party after 24 October should there be some view that that is necessary and that the Commission is asked to deal with the matter in some other preliminary way. Is that suitable? HATCHER: Yes, your Honour. JAMES: Yes.

6 On 23 October 2002, the Union filed its proposed order in these terms: North Sydney Leagues Club Ltd shall not require its employees to use a finger scan device for the purpose of collecting time and wages information (Ex "3"). 7 On 24 October 2002, the Club's Solicitors wrote again to the Union saying, inter alia, that the Club could not see how the evidence filed to date by the Union supports the terms of the order sought. It advised that unless further evidence was filed, the case was doomed to fail and the respondent would "move the Court to dismiss the proceeding as an abuse of process" (Ex "4").

8 At the outset of the arbitration Mr G Hatcher of senior counsel (now appearing for the Club), moved to have the proceedings struck out as an abuse of process.

9 Senior counsel argued that the subject matter of this dispute had been canvassed and decided in the decision of the Commission only a few months ago in a notification under s130 by Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch of a dispute with Parramatta Leagues Club Limited and another re breach of award, (unreported, O'Neill C, Matter IRC763 of 2001, 7 May 2002) and that these proceedings were an attempt on one view, to circumvent s179 of the Act; or on another view, simply an attempt at "forum shopping". In either case, the proceedings were doomed to fail as the Union refused to put on any evidence that could support the relief it sought.

10 Mr Hatcher referred to the unanswered correspondence sent to the Union on 13 September and 24 October 2002 in which the Union had clearly been put on notice as to what the respondent Club was seeking in respect to the case it had to answer.

11 Mr Hatcher referred to the proceedings before O'Neill C, and the Commissioner's decision of 7 May 2002. Mr Hatcher tendered two letters from the Privacy Commission of New South Wales to the Commissioner dealing with the finger scanning equipment.

12 Mr Hatcher referred to my recommendation of 30 October 2002 wherein I referred to the concerns expressed by the Union as to privacy and health and safety issues. Mr Hatcher said that, despite two invitations to the Union to identify these concerns, nothing was forthcoming.

13 Mr Hatcher argued that the Commission was being asked to prevent the Club from engaging in conduct permitted by the Award and after an identical case had concluded that the finger scanning equipment was appropriate. Moreover, the Union was the same Union that had notified the dispute before O'Neill, C.

14 Mr Hatcher said that this dispute was clearly an abuse of process; the proceedings are doomed to fail and were designed to vex his client. It was an attempt to subvert the processes of the Commission by having a member of the Commission effectively sit in appeal on another member's decision.

15 Mr James submitted that there had been no motion filed by the Club as required by both r 68 and r 69 of the Commission's Rules and the Union was not properly on notice of what the Club had now put at the last minute.

16 Mr James said there was no jurisdiction for the Commission, as presently constituted, to dismiss proceedings as an abuse of process.

17 Mr James submitted that this case had been properly prepared for and it was not appropriate for the respondent to propose at the outset of the arbitration that the matter be dismissed when the parties were clearly ready to proceed.

18 Mr James said that O'Neill C's decision did not determine the issues. It was in the nature of an exit decision affecting another club, Parramatta Leagues Club.

19 In reply, Mr Hatcher said that every tribunal has jurisdiction to prevent its proceedings being abused. He said that r 68 would need to be considered in light of r 69(2), which permits a motion to be moved orally.

20 As to O'Neill C's decision, Mr Hatcher submitted that the decision is a decision for the purpose of s179 of the Act. It was final and while s179 does not prevent proceedings being reviewed, there remains a presumption that the initial decision was properly given. The Commission can only come to a different decision based on a properly made out case. See Re Pastoral Industry (State) Award [2000] NSWIRComm 27 and Storeworkers - IGA Distribution Pty Limited New South Wales Distribution Centres Award 2002 [2002] NSWIRComm 156.

21 Mr Hatcher said if the Union wished to argue different circumstances it must bring the relevant evidence. It had not done so.

22 After a short adjournment the Commission issued the following decision on transcript.

23 Firstly, there can be no doubt the applicant union was aware of the motion advanced orally by Mr Hatcher today. Six days before the proceedings, the Union was on notice as to what was to be sought, notwithstanding perhaps the lack of precision of the language used in Exhibit 4. I reject Mr James' submission that he was not properly on notice of what was being sought by the respondent.

24 Secondly I accept there is no express provision in the Act enlivening the Commission's jurisdiction to dismiss a matter for abuse of process. Section 162(h) is akin to such a provision, but not exactly on point. However, all courts and tribunals have an inherent power to prevent an abuse of process in order to protect the proper conduct of proceedings before it. This is to ensure justice is afforded to the parties. See Broken Hill Chamber of Commerce and Ors and Construction, Forestry , Mining and Energy Union (New South Wales) [2002] NSWIRComm 244.

25 In my view, the Commission conducts itself in the manner of a court, particularly in respect to the requirement to decide matters on the basis of properly adduced evidence. See Brian Rochford Ltd (Administrator Appointed) v Textile, Clothing and Footwear Union of New South Wales 47 NSWLR 47.

26 I turn then to the proceedings before O'Neill, C. It seems perfectly clear that the Commissioner was in absolutely no doubt about his views on the introduction of the finger scanning device. The proceedings before the Commissioner were conducted over a long period, involving on site inspections.

27 For abundant caution the Commissioner sought advice from the Privacy Commission of New South Wales. Relevantly in his recommendation of 26 June 2001, he said: Not only has the Commission conducted a number of inspections to view the scanning process but exhaustive on site meetings have occurred at the Club with members and the Commission has involved the Privacy Commissioner in order to alleviate employees fears as to the security of the system. At the meeting with the Club employees I pointed out that the Industrial Relations Commission was satisfied as to the full privacy aspects of the new 'finger scan' (Bundy Clock) system. I am also satisfied that the system complies with the provisions of the Industrial Relations Act relating to the recording and security of Time and Wages Collection and storing of information.

Not only has the Commission involved the Privacy Commissioner in private conferences but correspondence from the Commissioner dated 15 February and 29 May should alleviate any fears, which employees have.

28 It is noted that the Commissioner, was satisfied that the finger scanning system complies with the relevant provisions of the Act.

29 On 7 May 2002 the Commissioner issued a short exit decision concluding the proceedings. He said: The Commission is more that satisfied with the operation of the process and on the basis of the directions and recommendations and the code of conduct issued by the Club, the Commission is now satisfied that this dispute has been resolved and the case is therefore concluded.

30 Notwithstanding the brevity of the Commissioner's decision, it is plain that on the material before him, his decision of 7 May 2002 concluded the matter. It was a decision from which there was no appeal. Section 179(1) of the Act is expressed as follows:

Subject to the exercise of a right of appeal to a Full Bench of the Commission conferred by this or any other Act or law, a decision or purported decision of the Commission (however constituted):

(b) may not be appealed against, reviewed quashed or called in to question by any court or tribunal (whether on an issue of fact, law, jurisdiction or otherwise)

31 In my opinion, there is much force to Mr Hatcher's submission that the Commission is being asked to do no more than revisit and overturn the Commissioner's decision less than six months after it was given. That is a task that the Commission simply has not available to it.

32 I say this because on the state of the evidence, as I understand it, the Union's case does not seek to agitate any issue which was not canvassed in the proceedings before O'Neill C.

33 If there is an argument that goes to the breach of the Award then the Commission as presently constituted is not able to deal with it. If it is a matter going to issues of occupational health and safety and privacy, as I alluded to in my recommendation of 30 July 2002, then there is nothing new, or indeed at all, in the evidence as it now stands. I note that the Union was specifically invited by the respondent to address such issues and has chosen not to do so.

34 I am persuaded by Mr Hatcher's submissions that it is not an appropriate or reasonable use of the Commission's time and resources for this matter to be agitated on the basis of the evidence filed. In the interests of ensuring justice is afforded to both parties I do not believe it is appropriate for this matter to proceed any further.

35 Accordingly, the proposed order in Exhibit 3 is refused. The proceedings are dismissed as an abuse of the Commission's processes.

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