State of New South Wales & Anor v The Broken Hill Town Employees' Union on behalf of employees

Determination

Despite Mr Knox's submissions that none of the matters raised by the plaintiffs should be in dispute, the fact is that they are.
Further, Mr Knox's submissions, well put as they were, proceed on the basis that the legal issues are quite clear and have already been determined. However, I am not satisfied at this point and for the purposes of this application that the legal issues are so clear. Indeed, they appear to be somewhat complex.
If it is merely a matter of looking at the documents, accepting there was an agreement and accepting that the plaintiffs are bound by the result of the test case, the issues may not be difficult to determine.
However, the Union pursues alternative cases. In order to determine the outcome of this matter. it will be necessary to determine: 1. Whether the parties did enter into a binding agreement; 2. Whether that is an industrial agreement; 3. Whether one party is estopped from challenging an earlier Court decision, having regard to that agreement; 4. Whether there has been repudiation of the agreement; 5. What damages might flow from that asserted repudiation; 6. Whether a civil penalty should be payable and, in the alternative; 7. Whether on a proper construction of an industrial agreement the employees are entitled to be paid at a certain rate, depending on the number of hours they work.
It is true that the Industrial Magistrate who determined the Jacka case determined the matter quickly and efficiently. His Honour construed the industrial agreement in such a way that rendered the Local Health District liable to pay Ms Jacka additional sums. However, the issues raised by the current application on behalf of 40 members are much more complex. That is because on one cause of action pursued by the Union, the 40 persons are not asking the Court to construe the original industrial agreement but rather are asking the Court to award damages for repudiation of an agreement the existence of which remains in dispute.
Further, the Union particularises an alternative case should it fail in its primary argument.
As I understand the primary claim constituted by the Agreed Way Forward document, it is based on the following statement from the director of the NSW Ministry of Health: "… in relation to part-time employees who worked up to 76 hours per fortnight, that claim remains outstanding, and the Unions will determine how they wish to settle that matter - either in the civil Courts or in the Commission. The Commission suggests that an employee be selected and a test case run - …"
Again, it is not my function to determine whether an agreement was entered into and the basis of that agreement but, if the Union's contention is that the documents comprising the agreement include that part of the email which I have just read out, a number of arguments would surely arise.
It is only necessary to say at this time that I am satisfied that the issues between the parties may involve complex issues, including issues relating to the formation of a contract, its terms, estoppel, interpretation of the Industrial Relations Act and an industrial agreement. That is not to say that a Local Court Magistrate sitting alone as Chief Industrial Magistrate would not be capable of determining these issues but I accept the plaintiffs' submission that the issues may be complex.
The second broad category of arguments made by both parties relates to the way in which the case might be conducted in the Supreme Court and the costs and difficulties of doing so, having regard to the Union's position.
Firstly, I accept that the Union is not a well-resourced litigant and that it is pursuing these proceedings on behalf of even more under-resourced members. Secondly, I accept that the very purpose of the amendment to the Industrial Relations Act was to allow such persons to recover amounts owing to them through the processes of the Local Court, even though the amounts involved might exceed the ordinary jurisdiction of the Local Court. I will comment on whether there is any argument about that jurisdiction shortly.
The ability of the Union to fund a long and expensive case must be in doubt. However, it is not clear to me that this case will be as long and expensive as the Union maintains. I say this because the plaintiffs propose that if the matter is transferred to the Supreme Court, the essential issues can be determined by way of separate questions. These are really matters of construction and consideration of documents as to the formation and terms of an agreement. Mr Knox submitted that he would not be intending to call any witnesses as such but rely on the documents. This seems to be the approach of the plaintiffs. The plaintiffs submit that once the separate questions are determined, the matter could be referred back for conciliation, presumably to deal with the assessment of the individual claims in accordance with the usual mechanisms under the Industrial Relations Act.
It is not clear to me why the hearing of this matter would not be short, perhaps two days with the parties providing written and oral submissions.
Further, it is not clear why it would be necessarily so that the Union must have a different form of representation in this Court from the Local Court. Again, it is not up to me to determine what form that representation might take, but to the extent to which Mr Knox has thus far been running the argument, he is plainly a competent advocate.
Further, he raised the prospect that he and other persons would not be able to attend in Sydney, particularly due to his health. That is no longer a problem in this Court, having regard to the Court's experience with hearings by AVL over the past two years.
In the circumstances, whilst the cost and time involved would undoubtedly be greater in this Court than in the Local Court at Broken Hill, I am not satisfied that the time and expense is such that it should necessarily militate against transfer.
This Court is able to use its own procedures to deal with matters quickly and efficiently, subject to the willingness of the parties to similarly do so.
All of the difficulties identified by the Union in terms of resources, time and cost are valid, except that I am not satisfied that the difficulties would be as great as the Union maintains. I am not prepared to accept that without direct evidence that the transfer to this Court would result in withdrawal of the application by the Union. The Union has already prepared a document which might form the basis of any statement of claim.
The third central point made by the plaintiffs is that the Local Court does not have jurisdiction to award the amount sought. As I have already identified, the Union says that this must be wrong having regard to Chapter 7 of the Industrial Relations Act and, in particular, s 375.
In response, the plaintiffs rely on the pleaded case in the Local Court. The plaintiff states that s 375 of the Industrial Relations Act does not assist the Union as it applies to "any amount ordered to be paid by the Local Court constituted by an Industrial Magistrate under this Part". The plaintiffs say that this only applies to an amount ordered to be paid under the industrial agreement and not for damages or a debt.
The plaintiffs point out that part of the case pursued by the Union is that the Agreed Way Forward agreement was an agreement arising at common law, rather than under an industrial instrument and that damages for repudiation are sought. The plaintiffs contend that in those circumstances the Local Court does not have jurisdiction to award either the total amount or any individual amounts over $100,000 (there are three).
Again, it is not my function to determine the outcome of that argument. I am uncertain of its strength. It is only necessary to say that unlike most matters when there is a transfer of this type, the parties are in dispute as to whether the Local Court has jurisdiction to award the amounts sought. Mr Knox's response to the argument was to reject it but also to say that even if it be correct, those three persons who sought more than $100,000 may have to forego those additional amounts. Whilst I understand why he made that submission, I am not sure that it is a satisfactory answer.
Plainly, Mr Knox sees considerable benefit in keeping the matter in the Local Court at Broken Hill. Again, I understand that position but the plaintiffs at the very least raise an argument as to whether all of the persons who are seeking recovery of sums through the Union will be able to recover the full amount they seek.
In all the circumstances, I am satisfied that there is sufficient reason for this matter to be transferred to the Supreme Court of New South Wales.
I make the following orders: 1. That the Local Court proceedings number 2021/00262357 be transferred to the Supreme Court pursuant to s 140(1) of the Civil Procedure Act 2005 (NSW). 2. That the matter be allocated to the Administrative and Industrial Law List in the Common Law Division. 3. That the Union file a statement of claim within 28 days. 4. That the nominated defendants to the statement of claim file a defence within 28 days. 5. At the same time as filing its defence the nominated defendants inform the Union of the separate questions which they propose and their proposal for the quick and efficient determination of the issues. 6. That the matter be listed before the Administrative and Industrial Law List Judge on 20 September 2022.
The plaintiffs seek costs on the basis that they have been successful in the summons. The plaintiffs say that the Union could have consented to the transfer. That may be so, but the plaintiffs are applying to the Court to exercise a discretion in their favour in circumstances which the Union was quite entitled to commence proceedings in the Local Court. On the Union's case, the Local Court has jurisdiction to determine the case and is the appropriate forum to determine the case having regard to the purposes of the Industrial Relations Act.
It does not seem to me that in those circumstances the Union should bear the cost of an application which the plaintiffs brought in their own interests. The plaintiffs should bear their own costs and I make no order as to costs.

At a glance

Court

Decision date

Before

Source

Judgment (6 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (2)

Cited By (1)