The Australian Rail, Tram and Bus Industry Union, New South Wales v Transport Secretary; and; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch v Transport Secretary

The questions raised by the appeals

1. According to their Applications for Leave to Appeal and Appeal, the appellants allege the Commissioner: 1. fell into jurisdictional error by: 1. failing to have sufficient evidence of actual or threatened industrial action; and 2. failing to adequately describe the unions in the orders; and 1. misapplied the "slip rule" within the meaning of r 36.17 of the UCPR.

Leave to Appeal

1. No issue was taken about the principles in relation to leave to appeal which are well established and have been restated frequently without change. Most recently in Secretary, NSW Ministry of Health v Health Services Union of NSW [2018] NSWIRComm 1007 the Full Bench said at [28]: The principles in relation to the grant of leave to appeal a decision of the Commission were summarised in Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16; n 250 IR 512. In that matter the Full Bench stated at [10] and [11]: It is well settled that an appeal under the IR Act is an appeal in the strict sense: see s 191 of the IR Act and King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407. In such an appeal the appellate tribunal will only intervene to correct error: Aboud v State of New South Wales (Department of School Education) [1999] NSWIRComm 449; (1999) 92 IR 32. In the case of discretionary decisions it is not enough that the appellate tribunal would have come to a different view. It must be shown that the primary judge had failed to properly exercise the discretion committed to him: Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 and House v The King [1936] HCA 40; (1936) 55 CLR 499. It is important to bear these principles in mind in approaching the question of leave to appeal. The principles guiding the determination of leave were clearly set out in this often cited passage from Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263: [5] The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52]-[55] and Knowles at 381 - 382) and, subject to the requirements of s188(2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application" (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5]. That statement has been approved since in a number of decisions: Merrin v Mosman Municipal Council [2016] NSWIRComm 1048 at [6]-[7]; Fire Brigades Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050 at [11]; Industrial Relations Secretary v Wattie [2017] NSWIRComm 1007at [11]. In Wattie, the Full Bench also observed at [12]-[13]: Further, we reiterate the observations of the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 at 392, referring to the then-recently enacted provisions of the Act: "The provisions of the Act as to appeals give primacy to first instance decision making in a manner not earlier found in industrial legislation in this State. We note that the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 also held, immediately before the statement set out above, that an appeal bench should not substitute its own views as to a decision that was reasonably open at first instance. We endorse and apply that approach. Lastly, we add, as the Full Bench said in Fire Brigade Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050, that it will rarely be appropriate to grant leave to appeal unless an appellant can mount at least an arguable case pointing to appellable error. This is by no means a new element of the Commission's jurisprudence; it has long been held that an appellate body in an appeal of this nature will only substitute its own judgment where the first-instance decisionmaker has fallen into error of law, or made a finding of relevant determinative fact that is demonstrably wrong: Drake Personnel Ltd v Workcover Authority of NSW (1999) 90 IR 432 at 440. There will rarely be utility in granting leave to appeal where that degree of error cannot at least arguably be agitated on appeal. These principles were recently endorsed in Commissioner of Police v Morris [2017] NSWIRComm 1010 at [6] and Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Acciona Infrastructure Australia Pty Ltd and Ferrovial Agroman (Australia Pty Ltd t/as the Pacifico Acciona Ferrovial Joint Venture [2017] NSWIRComm 1029 at [10]-[11]. As no party to the appeal has suggested that the Full Bench should not apply these principles, we propose to apply them.
2. We therefore applied these principles.

Insufficient Evidence

1. The Commissioner had before him an industrial dispute with several aspects. He had evidence of threatened industrial action by the RTBU and its members. The particular evidence to which he attributes weight was the press release issued by that union. He provided opportunities to the RTBU to rebut the evidence or otherwise indicate why making such orders were unnecessary or inappropriate. Ms Davis, appearing for, among others, the RTBU, was unable to contact officials directly involved. She was not therefore in a position to rebut the material before the Commission. She also acknowledged the Commission's duty to take into account the public interest in exercising its functions in accordance with s 146 (2) of the Act.
2. On the resumption of the compulsory conference the Commissioner received submissions to the effect that members of the AMWU were also on strike. Absent any rebuttal of that proposition, he determined to make orders binding upon that union as well.
3. Compulsory conferences convened under section 132 of the act are dynamic processes, often as in this case urgent and are governed by the flexible procedures prescribed in sections 162 and 163 of the Act. In that regard the assessment of the adequacy of the material before the Commission is not to be approached as if the matter were before a court. In that context, and on the basis of the evidence before the Commissioner, we do not consider there is relevant error, jurisdictional or otherwise, on the part of the Commissioner in determining to make the orders of 17 and 18 May.

Description of parties and application of the Slip Rule

1. The appeal was said to raise novel questions as to the application of rule 36.17 of the UCPR. It was submitted that the matter had not been considered by the Commission to date. Although that may be the case we accept the submission advanced on behalf of the Transport Secretary that: These [i.e. UCPR] are rules that apply generally across most courts and administrative tribunals in New South Wales and have been the subject of considerable judicial consideration. The present appeal raises no novel questions that are of such importance that, in the public interest, leave ought be granted to appeal.
2. Although the intervener did not engage in debate on the question of leave, the written submissions filed on the substantive questions made reference to the decision in Newmont Yendal Operations Proprietary Limited v the J Aron Corporation and The Goldman Sachs Group, Inc [2007] NSWCA 195; 70 NSWLR 411 in which the Court of Appeal considered the scope of application of r 37.16 of the UCPR. Relevantly Spigelman CJ, with whom the other members of the court agreed, observed: 1. carrying into effect the actual intention of the judge making the order falls within the natural and ordinary meaning of the word "correct" in the slip rule, particularly as understood in the light of the overriding purpose of the rules of Court as set out in section 56 of the Civil Procedure Act 2005 (NSW), at [116]; 2. the correction must be "apparent", at [122], or "such that the correction sought would have been made by the original judge 'at once'", at [137] or "obvious", at [138]; and 3. it is the intention of the judicial officer making the order which is relevant to the issue of whether it is an "accidental slip or omission". Inadvertence of inefficiency by representatives of the parties does not matter, at [153].
3. We have no doubt that the Commissioner: 1. intended that his orders be directed to the State Organisations and their members; and 2. would have "at once" amended the names of the unions had the error been brought to his attention.
4. Again we are unable to identify any error in the way in which the Commissioner approached or applied r 36.17 of the UCPR.
5. For these reasons we refused leave to appeal.

Other Comments

1. We consider it timely to observe that it is incumbent upon responsible industrial parties to be available to assist the Commission in circumstances of developing industrial disputes. Parties who fail, for whatever reason, to ensure that someone with knowledge of such situations is available to assist at compulsory conferences, even those called at short notice and out of normal business hours, run the risk that conclusions may be drawn adverse to their interest.

Order

1. We confirm our order that leave is refused in both matters.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 April 2018