TWU v Movers and Shakers Business Relocations Pty Ltd

UNION Mr M Kaine Transport Workers' Union of Australia, New South Wales Branch SYDNEY.

LEGAL REPRESENTATIVES: RESPONDENT Mr B Williamson

SOLICITOR Gadens Lawyers. SYDNEY.

• 8 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: PETERSON J TUESDAY 12 JUNE 2001

THE TRANSPORT WORKERS' UNION OF AUSTRALIA, NEW SOUTH WALES BRANCH v. MOVERS AND SHAKERS BUSINESS RELOCATIONS PTY LIMITED

Application to extend time to appeal and appeal against a decision of Commissioner Connor given on 10 November 2000 in Matter No IRC4736 of 2000. DECISION (Ex tempore)

1 The Transport Workers' Union of Australia, New South Wales seeks an extension of time to allow an appeal from a decision of Commissioner Connor which approved an Enterprise Agreement under the Industrial Relations Act 1996 ('the Act').

2 The parties to the Enterprise Agreement are the respondent to these proceedings, Movers and Shakers Business Relocations Pty Limited, and approximately 26 persons employed by that company as casual employees.

3 On 25 September 2000 Movers and Shakers Business Relocations, which I shall refer to hereafter as 'the respondent', filed in the Registry of the Commission an Enterprise Agreement for approval pursuant to the provisions of Part 2, Enterprise agreements of Chapter 2 of the Act.

4 In due course an affidavit by Steven Duroy, a Director of the respondent, was filed in support of the agreement. It contended that it complies with the relevant statutory requirements and, in particular, provided that it "does not, on balance, provide a detriment to employees covered by the agreement when compared with the aggregate package of conditions of employment which could otherwise apply in applicable awards".

5 In a statement of particulars in answer to the question what awards, et cetera, apply to the work covered by the agreement this answer was given, "The Movers and Shakers Enterprise Agreement No. IRC3117 of 1999 and the Transport Industry Award".

6 In a letter from Mr Duroy to the Industrial Registrar he, in effect, submitted the agreement for approval again adverted to the Transport Industry Award, the existing Enterprise Agreement and then put a number of differences in identified areas. The hourly rate was said to be higher than that in the current Transport Industry Award. It also made the point that no "penal" rates are to be paid for any hours worked on Saturday and Sunday or hours of work after 40 hours or after eight hours on any second work day.

7 Section 36(3) of the Act, in conjunction with Reg 4 of the Industrial Relations General Regulation 1996, requires the Industrial Registrar to advise of any proposed Enterprise Agreement under which employees are a party, the Secretary or Chief Executive of any industrial organisation who is a party to an award or Enterprise Agreement then applies to the employees for whom the proposed Enterprise Agreement is to be made. The records of notifications made by the Industrial Registrar's Office show that a number of employers and the employer organisations were notified but the TWU was not.

8 On the material supplied to the Registrar it appears that s.36(3) imposed a positive requirement that the TWU be notified of this case. Nevertheless, it seems the TWU got wind of the proceedings because on 10 November 2000 Mr M Galey sought to appear for the TWU. The transcript of proceedings on that day records him as having appeared at the head of the transcript. The matter proceeds along what one might call normal lines. I note that the Commissioner on page 1 suggests, "The application itself seems on its face to present no problems". There is reference by the Commissioner then to the Transport Industry State Awards still applying.

9 Mr Laidler, who was appearing for the respondent, was asked by the Commissioner: "What is the status, however, of the Transport Industry State Award"? The question continues:

"It still applies to your employees subject to the changes that are said, is that the position?" Mr Laidler answered: "Is that correct, yes".

10 Evidence was then called from one of the employees to be bound by the Enterprise Agreement and he confirmed that the employees were agreeable that there was an absence of duress. Mr Laidler and Mr Stevens, who was appearing as representative for the employees of the respondent, asked no questions of the witness. The Commissioner then turned to Mr Galey, seemingly giving him an opportunity to ask questions. Mr Galey said: "Commissioner, the reason for my being here was to ask for the matter to be held over until such time as the Transport Workers' Union actually received a copy of this agreement which we don't have".

The Commissioner responded: "There is no obligation, as I understand it, Mr Galey, for that to be provided to the TWU. This is an agreement between parties. Your position in these proceedings is an intervenor".

Later the Commissioner said: "I hear what you say, Mr Galey. In the circumstances I'm not disposing to adjourn these proceedings. I'll proceed to hear the matter on that basis. Your position is an intervenor in these proceedings and, whilst there is no opposition to your presence in the proceedings, you are an intervenor only. The TWU has been a beneficiary of a recent decision of mine which follows the same law; the status of intervenor being somewhat more reduced than the principal parties and on that occasion I wasn't prepared to overturn an agreement reached between the parties particularly when I am, as I am in these proceedings, satisfied that it complies with the provisions of the Act and that it complies with my obligation".

11 The Commissioner then proceeded to indicate that he would approve the agreement and he published short reasons for the decision that day. I think it is fair to say that the published decision does not elaborate to any extent on what I have set out above.

12 Leaving aside the terms of the Enterprise Agreement and the effect of s.35(1)(b), the no detriment test, and also the question of the rights of the TWU appearing in proceedings before the Commissioner, the proceedings appeared normal.

13 The terms of the agreement were the subject of a report by the Deputy Industrial Registrar which was before Commissioner Connor. That report in the usual way points to distinctions which can be found between a proposed Enterprise Agreement and the relevant award provisions, in particular picking out any perceived deficiencies.

14 There are three references of substance in the report which raise questions about the content of the agreement. The first was the lesser subject matter of a deposit of $25 to be paid by an employee for uniforms to be supplied by the respondent. No such deposit was required under the Award.

15 The second was a reference to the hours provisions of the proposed agreement, the report referring to "The basic hours of work on any one day shall be twelve hours". It also indicated that the maximum number of twelve hour shifts per week to be worked would be seven. This gave a theoretical maximum number of hours of work of eighty-four. The report also referred to the absence of any reference to shift work or overtime in the agreement.

16 The third matter of substance referred to was hourly rates of pay and whilst the margins cited in the Deputy Industrial Registrar's report were relatively small ($14 in the agreement compared to $14.38 per hour in the Award and $14.52 per hour from 10 April 2001 in the Award). The TWU has suggested that in these proceedings that the differences are more substantial.

17 The report also recorded that the hourly rate of $14 was payable irrespective of the time of the day or the day of the week and is inclusive of penalty rates, overtime, annual leave, sick leave and Public Holiday rates.

18 In the absence of any countervailing information I do not consider the Deputy Industrial Registrar's report could be read to point to anything other than significant detriments in the matter at least of hours and wage rates.

19 Subsequent to the hearing on 10 November 2000 the TWU did nothing until 5 January 2001 when a member who had been first employed by the respondent as a casual employee at a date between 10 November 2000 and 5 January 2001 supplied Mr Galey with a copy of the Enterprise Agreement. The Enterprise Agreement was then considered by the TWU, sent to counsel for advice and on 25 January 2001 these proceedings were commenced.

20 On any view of it, the TWU sat on its hands between 10 November and 5 January. That approach I consider cannot be explained by a suggestion that the matter had been ostensibly decided and approved and there were no contra indications about the Enterprise Agreement.

21 There is no disagreement between the parties in these proceedings that the principles applicable to consideration of the application for an extension of time are those which were set out conveniently in a judgment of the Full Bench of the Industrial Relations Commission in Court Session in WorkCover v Parkes Council (1996) 70 IR 298 where at 299-300 the Full Bench said: The proper approach to adopt in a consideration of the application was common ground between the parties. Reference was made in that respect to the decision of the Full Commission (Peterson and Schmidt JJ, and Connor CC) of the former Industrial Relations Commission of New South Wales in Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at 5-6 as followed by the Full Commission (Cahill VP, Maidment J and French CC) in Brookes v Watling (1995) 61 IR 163 at 166-167. In those two cases the Full Commission cited recent authorities formulating the way in which the grant of an extension of time for the filing of an appeal should be considered: see Gallo v Dawson (1990) 64 ALJR 458; Jess v Scott (1986) 12 FCR 187; and Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601. From those cases, the following propositions may be drawn: (1) The grant of an extension of time is not automatic and the object of those rules which fix times for doing acts is to ensure they do not become instruments of injustice; the discretion to extend time is given for the sole purpose of enabling justice to be done between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262.

(2) The discretion can only be exercised in favour of an extension of time upon proof that compliance with the rules will work an injustice upon the applicant therefore which necessarily requires regard be had to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application to extend time: see Avery v No 2 Public Service Appeal Board [1978] 2 NZLR 86 at 92; and Jess v Scott at 194-195.

(3) An application for an extension of time in which to file an appeal always requires consideration of the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-264; and Mitchelson v Mitchelson (1979) 24 ALR 522 at 524.

(4) Upon the expiration of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: see Vilenius v Heingar (1962) 36 ALJR 200 at 201.

(5) There must be material upon which it can be satisfied that to refuse the application to extend time would constitute an injustice: See Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1965] 3 All ER 933 at 935.

(6) "The difference between two weeks and four weeks is not much (by which the time is to be extended) . . . We never like a litigant to suffer by the mistake of his lawyers": per Lord Denning in Ghosh at 601.

22 Having considered those principles, it seems to me that this case represents one in which an extension of time should be granted. The case presents what I consider to be a number of major difficulties. The first is that the TWU was entitled to appear in proceedings on 10 November as a result of provisions of s 34(2), in particular (b). It was not, as I understand the meaning and effect of that provision, an intervenor but a party to the proceedings.

23 It appears to me that the Commissioner, in affording the TWU the status of an intervenor in the proceedings, may well have wrongly applied the principles which apply to the role of an intervenor, that is to say a person who is not a party principal to the proceedings but a person suffering some potential indirect effect.

24 Those principles were applied by the Commissioner, and indeed supported and recorded on appeal by the Full Bench in an appeal from him, in the decision entitled Transport Industry - Waste Collection and Recycling (State) Award (No 2), Unreported [2001] NSWIRComm 5, 30 January 2001.

25 The second problem raised is the lack of notice of the proceedings given to the TWU as the statute requires. Section 36(3), as I have already said, affords a right of appearance and Reg.4 drives that point home in this particular case. S 36(1) imposes a barrier to the approval of an Enterprise Agreement unless that requirement has been complied with. Accordingly, there has been a failure of note in that respect.

26 The case seems to raise arguably a situation in which the agreement on balance did provide a net detriment to the relevant employees. The material before the Commissioner does seem to me not to support the contrary conclusion to which he came and in those circumstances the matter ought be reviewed.

27 The point has been made against the TWU today that its appeal was filed eighty-one days out of time and contrast was made with decisions of the Commission which have refused to extend the time for as little as two days in criminal matters. One example is the decision of the Full Court in the Parkes Council case. However, reference to the absence of reason advanced in that case which is recorded at p.304 of the report earlier cited is instructive and I quote: "A sole reason advanced for the delay in filing was 'the general workload within the office of the prosecutions branch at that time'. The matter was not given any apparent priority to ensure the appeal was filed in a timely way and nothing was advanced to suggest that such priority could not have been given. Indeed, one looks in vain at the evidence to find any reasonably acceptable explanation which would warrant the exercise of discretion to extend time. That deficiency in the evidence cannot, in our view, be adequately met by the submission that the delay was only "two days"."

28 It is apparent from that reference that that was a straightforward matter of an appeal being sought to be filed against a decision of a single member of the Court and it being late for no other reason than workload.

29 This is a case I think of distinction from that. The history is an unusual one. The statute imposes particular barriers over which an Enterprise Agreement must be able to climb in order to achieve approval. The role of the relevant unions afforded by the Act is obviously an important one and were it not for the particular problems to which I have earlier adverted one would be inclined to think that time should not be extended, but given the particular problems I am satisfied that it is appropriate to do so.

30 I therefore extend time to appeal until 25 January 2001.

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.