State Wage Case 2006, Re [2005] NSWIRComm 482

LEGISLATION CITED: Workplace Relations Amendment (Work Choices) Act 2005

HEARING DATES: 12/20/2005 EXTEMPORE JUDGMENT DATE: 12/20/2005

APPLICANT Mr M Thistlewaite with Ms A Hughes Unions NSW

RESPONDENTS Mr D Grozier Australian Business Industrial and affiliated associations

Ms V Paul NSW Road Transport Association and Australian Industry Group

Mr E Leahy Catholic Commissioner for Employment Relations

Mr T McDonald LEGAL REPRESENTATIVES: Employers First and affiliated associations; and Australian Retailers Association

Ms D Talbot Local Government and Shires Association

Mr J Murphy of counsel Minister for Industrial Relations; and Public Employment Office

Mr A Baumgartner Motor Traders' Association of New South Wales

Mr I Unsworth State Chamber of Commerce

INTERVENORS Mr R Goot SC The Commonwealth of Australia

Application by Unions NSW for a State Decision - State Wage Case 2006 under section 51 of the Industrial Relations Act 1996

1 The Commission has before it for directions the application filed on 10 November 2005 by Unions NSW for a State Decision in proceedings which the applicant has titled "State Wage Case 2006". 2 The matter first came before me for directions on 29 November 2005, when the applicant indicated that it did not seek directions at that stage, but sought the matter be stood over for further directions. That course, as I recall it, was generally agreed. Accordingly, the matter was stood over for further directions today before the Commission as presently constituted. 3 Notwithstanding that the matter was listed for directions, not before a Full Bench, but before a single member of the Commission, a debate of some significance occurred today. It is regrettable that for reasons beyond anyone's control, that debate occurred before a single member and not before the Full Bench. It is also less than ideal that the decision in relation to the matters dealt with today should be given extempore, which will inevitably mean that the decision will not be as refined as it perhaps should be, or as finally tuned as it could be. 4 Nevertheless, I consider that it is appropriate to make a decision today, and not take a course which would be artificial, and perhaps unfair, requiring the parties to return at some time between now and Christmas or early in the New Year, which could have an impact on those appearing and their families, when a decision on the matter can be given, albeit in less than felicitous terms, today. 5 The debate before the Commission today was wide ranging, and is set out in full in the transcript. In the circumstances, it is not proposed to seek to set out in detail the debate that occurred. It is perhaps sufficient to observe that Unions NSW sought the following directions, as set out in the document it tendered (Exhibit 1): 1. That Unions NSW file and serve on all parties and intervenors, written submissions and any evidence in support of the application by 4.00pm on 17 March 2006.

2. That the Minister for Industrial Relations, the Public Employment Office and any intervenors file and serve on all parties and intervenors written submissions and any evidence by 4.00pm on 31 March 2006.

3. That all Employer Parties, file and serve on all parties and intervenors written submissions and any evidence by 4.00pm on 7 April 2006.

4. That Unions NSW file and serve on all parties and intervenors, written submissions and any evidence in reply by 4.00 pm on 3 May 2006.

5. That the matter be listed for hearing in the week beginning 15 May 2006. 6 In arguing that those directions should be made, Mr Thistlewaite for Unions NSW emphasised the right of an applicant to have its application heard in the usual orderly and measured way, and pointed to the particular circumstances which had led to the relatively and hitherto unusual course of making such an application. His submissions paid particular regard to the possibility that some number of persons previously covered by State Wage Cases might not be so covered next year, and that those employees who would be covered by the State Wage Case decisions, both in the past and in the future, may have a reasonable expectation that the general level of safety net and associated wages would be reviewed in a timely way in the middle of next year, as has occurred at approximately the same time in the last three years. 7 A limited right to be heard was provided to Mr Goot of senior counsel appearing for the Commonwealth, who argued that because of: (a) the enactment of relevant parts of the Workplace Relations Amendment (Work Choices) Act 2005; (b) the consequent establishment of the Australian Fair Pay Commission; (c) the fact that that body will make a determination in terms of its statutory mandate in the third quarter of 2006; and (d) the currently reserved decision of the Full Bench of the Australian Industrial Relations Commission (AIRC) as to whether it should vacate the preliminary directions made in respect of the ACTU's application before it,

no direction should be made by the Commission. 8 I should interpolate here that when reference was made to the Commonwealth being given a limited right to be heard, what was meant was that the Commonwealth was given leave only to make submissions today on its application that no directions be made in the proceedings but the Commonwealth's future role in the proceedings was to be determined by the Full Bench in due course. 9 Significant emphasis was placed by senior counsel on public interest considerations in the present proceedings, which were said to be raised by the considerations he relied upon, an outline of which I have referred to. Most of the employer interests supported, in a practical sense, the approach to the Commonwealth, and stressed the unusual set of circumstances that now arose in relation to the present application and that it would be therefore inappropriate to make any decision without the Commission being in full possession of all relevant information, including the decision of the Full Bench of the AIRC which was likely to be delivered by Christmas. 10 The Catholic Commission for Employment Relations (CCER) and the Local Government Shires Associations (LGSA), whilst recognising that it was important for the Commission to have all relevant information available to it, were concerned that these proceedings should occur in the usual orderly way, because, in the case of CCER, many of the employees employed by the employers it represented were not employed by constitutional corporations, and any determination of the present proceedings would be relevant to their wages and conditions. The LGSA particularly emphasised the importance of the application proceeding in the usual orderly way. 11 It is appropriate to record that because of the commendable cooperation that the major industrial parties in this jurisdiction extend to each other, and to the Commission, which has occurred over many years, the Commission has been able to plan, at least for the last seven or eight years, the fixing of a State Wage Case, usually in May of each year, and to do so by providing informal advice to the major industrial parties, either early in the relevant year, or more usually in the last few years, late in the preceding year. It therefore so happens that the application by Unions NSW made in November of this year coincides approximately with the time when, in the usual course, the Commission would have informally advised the major industrial parties of when the State Wage Case (if one was appropriate) would be heard the following year. 12 The facility that has been available in previous years has of course been useful in ensuring the best use of the Commission's very busy schedule, and also useful in alerting the parties to the need to ensure their availability for the dates set for the State Wage Case. 13 In a practical sense, that situation has resulted in State Wage Cases being very efficiently heard and determined, and that has been in no small measure due to the cooperation of the parties, which has been earlier referred to. In a real sense, what the Commission has before it are a series of arguments which compete around these central themes. On the one hand, the applicant's approach is supported by the submissions of Mr Murphy of counsel for the Minister, who has stressed the need, in the light of the new circumstances presented by the impending federal legislation, to have some certainty in wage fixing for those persons who would not be covered by federal awards and the prima facie right of an applicant for proceedings to be heard and to have them heard in an orderly way. 14 The other side of the argument, represented by the majority of the employers and the Commonwealth, is that all relevant considerations point in favour of deferring the making of directions. That is put on various levels. For example, one consideration which is heavily relied upon is the reserved Full Bench decision of the AIRC, and in that respect it is said it would be inappropriate to make a decision until a decision of the AIRC is available. 15 The argument against making directions is also put, of course, on a more comprehensive basis, that it would be inappropriate to proceed to make directions towards any hearing because, for example, the timetable does not allow the likelihood of important economic evidence to be available to the Full Bench when it considers this application, and also because of the uncertainties and public interest considerations said to be generated by the new federal legislation and, as such, that it would be premature to make any directions at this stage. 16 In seeking to set out the arguments in this way, it is possible that some of the important aspects of them have not been enunciated, but nevertheless, it is felt that their main thrust has been set out. The circumstances which are before the Commission are certainly varied, but it is not as though the Commission is without guidance in its general approach to these matters, and an important consideration is that, provided parties are given a proper opportunity to be heard, an applicant for an award (or even for a State decision such as the present application) has a right to have its application heard, within the constraints of other Commission business, in an orderly way. 17 On the other hand, the Commission has always, in my experience, been careful to ensure the right to be heard is a real right to be heard; that is, it is a right to have the case put in a proper way and the Commission has always been careful to avoid the notion of the right to be heard being, and being seen to be, a mere formality. 18 The Commission should, therefore, take an appropriately cautious and incremental approach in determining what directions, if any, should be made today. This inevitably involves a very fine balance of the competing considerations, but also a recognition that the major industrial parties in this jurisdiction should be able to prepare for 2006 with some expectation as to what might occur in these proceedings. 19 It seems to me that the appropriate balance would be achieved if the majority of the directions sought by the Labor Council was made, but with an appropriate safeguard built into those directions to ensure that they can be reviewed by the Full Bench early in the New Year, if it is appropriate to do so. 20 Before actually making those directions, I should observe that one of the submissions put by Mr Grozier for Australian Business Industrial, supported by Mr McDonald for Employers First and also by other employer representatives, was that direction number 3 did not give sufficient time for the kind of reply that might be necessary to be made as to the material to be filed by Unions NSW and the Minister, in terms of proposed directions 1 and 2. 21 It is, of course, difficult to be sure at this stage precisely what material the employers will provide at that stage, but having regard to some of the arguments put by the employers, it seems reasonable to assume that some of their material will be material of a substantive nature, that is, material not specifically responsive to that of Unions NSW and that of the Minister, and therefore material which, in a practical sense, the employers might be reasonably expected to commence preparation of, prior to their receiving material served by Unions NSW and the Minister in terms of the proposed directions 1 and 2. 22 Although I did at one stage hesitate about making direction number 3, I consider it is appropriate, having regard to the real possibility that some of that material covered by that direction would not be material in reply, to ensure that the employers are on notice that time is running, as it were, in respect of their material. It was, for those reasons, that my initial hesitation about making direction 3 has been resolved. 23 I therefore make directions in terms of proposed directions 1, 2, 3 and 4 in Exhibit 1. I also intend, subject to hearing from the parties, to set the matter down before the Full Bench at 9.15am on Tuesday 14 February 2006, and grant liberty to apply to any party (and for this purpose only, the word "party" includes the Commonwealth) to seek variations to those directions, provided documents setting out the variations sought in the form of notices of motion or any other suitable document, and short submissions in support thereof, are filed and served by 12 noon on 7 February 2006.

[after hearing from the parties] 24 I have now discussed with the parties any difficulties that they might have with those supplementary directions and the date proposed. I also indicated to the parties that the hearing at 9.15am on Tuesday 14 February would have to be subject to confirmation, and that will be done by the Registry, in the usual way, advising the parties here today. The Commission makes directions accordingly.

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