R v Lydon; Ex parte Cessnock Collieries Limited

THE COURT REASONS FOR JUDGMENT These proceedings involve an application by the Transport Workers' Union of Australia ("the Union") for writs of prohibition, mandamus and certiorari directed to members of the Australian Industrial Relations Commission ("the Commission") which has been remitted to this Court by order of the High Court made on 7 October 1997. The application arose from proceedings in the Commission initially heard by Commissioner Hoffman which concerned an application for orders requiring Mayne Nickless Limited ("Mayne Nickless") to provide benefits to certain casual employees in relation to overtime. The proper characterisation of the claim is central to this appeal and is a matter we return to shortly. The Commissioner published a decision on 4 March 1998 dealing with a preliminary issue raised by Mayne Nickless. He concluded he did not have jurisdiction to entertain the application. The application involved, in his opinion, a request to exercise the judicial power of the Commonwealth. The Union appealed against this decision. On 23 May 1997 a Full Bench published reasons for decision in which it gave the Union leave to appeal but dismissed the appeal. That decision led to these proceedings in which the Union contended the Commission did have jurisdiction to deal with the matter. The Union submitted the Commission was not being called on to exercise the judicial power of the Commonwealth. Rather the matter involved the Commission exercising arbitral powers conferred on it by the Workplace Relations Act 1996 ("the Act"). The issue in these proceedings is therefore narrow in compass. In order to understand how the issue arose it is necessary to recount in some detail the history of the matter. The employment of casual employees of Mayne Nickless who worked in the Armaguard division of that company was regulated by the Transport Workers' (Armoured Vehicles) Award 1978 ("the Award"). In March 1991 a 38 hour week was introduced and, it appears, was reflected in variations made to the Award. It also appears that the introduction of the 38 hour week may have had an effect on the manner in which casual employees should have been paid overtime. That is, they arguably should have been paid overtime after working 7.6 hours. Mayne Nickless adopted the position that its casual employees in Queensland should be paid overtime after 8 hours while the Union maintained the position that overtime should be paid after 7.6 hours. Mayne Nickless gave effect to its view of the Award by paying overtime to its casual employees in its Armaguard division after they had worked 8 hours. This difference in opinion appears to have led to the imposition of bans by members of the Union in 1996 which in turn led to Mayne Nickless notifying the Commission of the existence of an industrial dispute pursuant to s 99 of the Act. The notification was in the following terms: Pursuant to Section 99 of the Industrial Relations Act 1988, I advise of the existence of an industrial dispute between the Transport Workers' Union of Australia Queensland Branch (TWU) and Armaguard Queensland (Armaguard), as well as a further threatened and pending dispute. The threatened and pending dispute involves an opinion held by the TWU, that Armaguard is in breach of the Transport Workers' (Armoured Vehicles) Award 1978, with respect to the way the Company pays overtime to casual employees (see attached documentation). It is the Company's respectful position that there are legitimate ways of dealing with such a difference of opinion and that industrial action is not one of them. The actual dispute concerns the refusal of Road Crew employees at the Company's West End Branch to service certain ATM machines, unless an armed guard is present and to reconcile a number of Suncorp ATM machines in remote locations. Accordingly, the Company respectfully requests that a conference be convened so that the Commission's assistance in this matter can be sought. That led to a hearing before Commissioner Hoffman on 26 March 1996. Earlier, on 24 January 1996, the Secretary of the Queensland branch of the Union had written to Mayne Nickless asserting that the practice of the company in paying its casual employees was contrary to the provisions of the Award and in breach of the Award. The letter outlined the Union's view of how the Award was intended to operate and concluded with the following; We should be please if within 7 days of the date hereof you would confirm that; (a) Armaguard will in future comply with the Award provisions regarding hours of work and overtime for employees who do not receive a rostered day off; and (b) immediate steps will be take to appropriately recompense casual employees for overtime worked but not paid for by the company. On 29 March 1996 employees in the Armaguard division of Mayne Nickless stopped work. On 15 May 1996 the branch secretary of the Queensland branch of the Union again wrote to Mayne Nickless concerning the payment of overtime to casuals. The letter recounted that there may have been a meeting of union delegates who had discussed the overtime issue. The meeting had been told that in other states, overtime after 7 hours and 36 minutes was paid to casual employees in the Armaguard division. The meeting was also told that casuals of another employer bound by the same award were also paid that way. The letter went on to say that Union members had expressed their concerns at what appeared to be an attack by Mayne Nickless on award conditions. The letter recorded that the meeting of delegates had authorised: the union to take whatever action was necessary to ensure that Armaguard pay the Award in the correct manner in respect of overtime to casual employees … The letter concluded: The union is now considering what action is now necessary and I urgently request that the company ensures their compliance with the Award in respect of overtime to casuals. … On 17 May 1996 employees of Mayne Nickless in its Armaguard division again stopped work. This led to a further notification of dispute by Mayne Nickless in a letter dated 17 May 1996. It was in the following terms: This matter was last before the Commission (Hoffman C) on 26 March last and arises from a disagreement between the company and the union over the payment of overtime to casual employees. The company stands by its interpretation of the relevant Award provisions. The union has several options open to it to test the validity of the company's interpretation, including seeking an interpretation from the Court or prosecuting for a breach of the Award. It has chosen to ignore these avenues and today its members at a number of branches of the company have engaged in strike action, apparently in an attempt to force the company to accept the union's view. This action is in direct breach of the Settlement of Disputes procedure under the Certified Agreement applying to their employment. Accordingly we request the Commission to reconvene the conference to assist in ensuring future compliance with the terms of the Agreement. Proceedings in the Commission also resumed on 17 May 1996 though before a different Commissioner. Mr Bryce appeared for Mayne Nickless and characterised the issue before the Commission in the following way: Commissioner, this matter has been on before this Tribunal before, in fact, before Commissioner Hoffman on 26 March last. Without traversing all the ground, the issue arises over a disagreement between the company and the union concerning the interpretation of the hours clause and the point at which casuals should receive overtime. The company takes the view that they pay their casuals overtime if they work in excess of 8 hours in any one day or if it is after the 38th hours in any one week or if it is after the 152nd hours in any four weekly cycle. The solicitor appearing for the union did not put in issue this characterisation of this particular aspect of the dispute though indicated the dispute involved other matters including the attitude of the company to enterprise bargaining negotiations. The matter next came before the Commission, constituted by Commissioner Hoffman, on 15 October 1996. The issues were identified by Mr Watson, appearing for the Union, in the following passage: MR WATSON: Commissioner, we have asked that this matter be listed today because the situation is that discussions between the parties have effectively reached an impasse in relation to where the issue of the payment of overtime and the number of hours after which casuals should be paid overtime should go. The Commission might recall from earlier occasions on which the matter has been before the Commission that essentially the dispute between the parties revolves around whether, under the provisions of the award, the appropriate payment of overtime for casuals should come after 7.6 hours or after eight hours. Now, I will not trouble the Commission with the backwards and forwards of discussions between the parties, but I think it is fair to say that they have reached a state where they are not going to progress further, and essentially, Commissioner, our view is that one way or another the matter now has to progress in a more formal setting. We have asked for the Commission to list the matter with a view to having it arbitrated, and I want to make quite clear what it is that we would seek to have arbitrated so that if there is any disagreement from Armaguard, that can be put up front and the matter can be dealt with. We would seek to have both the issue of the future, that is what should pertain in relation to payment of overtime in prospect for casuals dealt with by reference to the award clause. We would also seek to have arbitrated the issue of any compensation which is payable to employees for what we say is a failure to adhere to the award in the past. Now, if there is to be any suggestion that those matters cannot be both dealt with here for whatever reasons and that the matter needs to proceed in another forum, well, of course, we will take that step if necessary, but it is our initial intention that this matter might be most efficiently progressed under the auspices of the Commission if both parties are prepared to consent to an arbitration on those issues, and certainly, Commissioner, I can indicate that the Union is prepared to participate in a consent arbitration in relation to that matter. The offer of the Union to submit to consent arbitration was not taken up by the representative of Mayne Nickless. He indicated, shortly after Mr Watson's comments, that the company's view was that the matter involved the interpretation of the award which was a matter appropriate to be considered by the Industrial Relations Court of Australia. The representative went on to indicate that Mayne Nickless believed the Commission did not have jurisdiction to deal with the matter. The hearing concluded with the Commissioner indicating that he wished to give the Union an opportunity to put submissions on the Commission's jurisdiction and for Mayne Nickless to respond to them. He indicated he would list the matter some time in the week commencing 25 November 1996. On 29 November 1996 a further hearing took place in which submissions were made by the parties on the question of jurisdiction. The Union had prepared written submissions dated 25 November 1996 which were handed up at that hearing. Those submissions commenced by identifying the relief sought in the following terms: In this matter the Transport Workers Union of Australia seeks the following relief: A An order that Mayne Nickless Limited trading as Armaguard ("Armaguard") pay casual employees employed in Queensland under the Transport Workers (Armoured Vehicles) Award ("the Award") overtime rates after such employees have worked 7.6 hours on any day. B Armaguard pay to each casual employee in Queensland employed under the Award as at the date of this order ("the relevant employees") the sum of $2.78 for each day on which such employee worked for eight hours or more at any time on or after 25 March 1991. This order shall only operate in respect of a relevant employee if such employee signs a release in favour of Armaguard to the effect that the relevant employee will not initiate proceedings for breach of Award in respect of Armaguard's failure to pay overtime to casual employees in Queensland after such employees have worked 7.6 hours on any day. The written submissions then identified the grounds upon which that relief was sought. The grounds were, to an extent, repetitive. They were that the proposed orders would resolve a dispute that had arisen between the parties and would ensure that all casual employees employed in the Armaguard division would be remunerated in the same way and also in the same way as employees of Brambles Limited. Brambles Limited was said to be the Armaguard division's main competitor and the only other significant employer of labour in the armoured vehicle industry. The submissions also identified as a ground that the casual employees would be remunerated in the same way as casual employees in the general road transport industry. A further ground was that the orders would compensate the relevant employees for Mayne Nickless's failure to remunerate their casual employees in the same way it remunerated employees in other states and employees were remunerated by Brambles and operators in the general road transport industry. A further ground was that the orders would provide the employees with conditions which the union said were already to be required under the award. Three additional grounds were identified. The orders would avoid industrial disputation between the parties, would avoid the time expense and potential deterioration of relations between the parties if legal proceedings were commenced alleging a breach of the Award and the orders were industrially fair and desirable in the public interest. This last matter was expanded upon in the written submissions in the following way: The grounds upon which relief is sought are classically those of an industrial arbitral tribunal. Relief is sought on the basis that it will settle a dispute between the Union, its members and the employer as the matters pertaining to the relationship between employers and employees. The relief is sought on the basis of ensuring like conditions for like employees. The relief is sought generally on the grounds of industrial fairness and asks the Commission to take account of the public interest. None of these are things which a Court in determination of a breach of Award proceeding could pay regard to. It is no part of the Court's function to settle the dispute. It is not part of a Court's function in a breach of Award proceeding to take account of the way other employees are paid under the Award or under other Awards. Indeed evidence of how other employees under the Award were paid or how employees under other Awards were paid would not be admissible in breach of Award proceedings. Oral submissions to the same effect were made to the Commissioner in the hearing on 29 November 1996.