Australian Workers' Union, The v D & D Traffic Management Pty Ltd

[2021] FWC 6044

[2021] FWC 6044

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Australian Workers' Union, The
v
D & D Traffic Management Pty Ltd
(AG2019/4859)

COMMISSIONER RIORDAN SYDNEY, 5 OCTOBER 2021

Application for termination of the D & D Traffic Management & Other Work - Enterprise Agreement 2015 - whether the proceedings ought to be stayed

[1] The Australian Worker’s Union, NSW Branch (the Applicant) filed an application (the Application) on 16 December 2019 to terminate the D & D Traffic Management and Other Work Enterprise Agreement 2015 (the 2015 Agreement) after its nominal expiry date date on 30 June 2019. D & D Traffic Management Pty Ltd (the Respondent), opposes the application.

Background

[2] The history of this matter is lengthy and complex. Numerous conferences were convened by the Commission, as presently constituted, in the first 6 months of 2020 to facilitate the negotiation of a new Agreement.

[3] Whilst the parties could not reach an agreement during these negotiations, a new Agreement was made with the employees, the D & D Traffic Management & Other Workers Agreement 2020 (the 2020 Agreement).

[4] The 2020 Agreement was not approved by the Commission (Deputy President Cross) in two decision of 24 February and 10 March 2021.

[5] The Respondent appealed this Decision but was refused leave to appeal by the Full Bench on 16 July 2021.

[6] The Applicant then requested that the Commission deal with this Application. Conferences were convened on 6 September and 20 September 2021. Directions were issued on 20 September for a hearing of the Application on 15 October 2021.

[7] On 27 September 2021, the Respondent wrote to the Commission advising that it had appealed the earlier decisions of the Commission to the Federal Court of Australia, seeking the Commission to “stay” the hearing of this Application. This decision is in relation to the Respondent’s stay application.

Jurisprudence

[8] It is not in dispute that the Commission has the power to issue a stay of this Application until the outcome of the Respondent’s Federal Court proceeding has been determined.

Brief Outline of Submissions

[9] The Applicant submitted that there would be a permanent prejudice against the employees if the stay was granted because it would further delay the employees obtaining the allegedly, superior benefits of the Building and Construction General On Site Award 2020.

[10] The Applicant claimed that the Respondent has deliberately delayed its Federal Court appeal to continue to delay and frustrate this Application. The Applicant submitted that, based on their experience in another matter, the earliest the Federal Court could hear the appeal would be in late February 2022.

[11] The Applicant submitted that this Application is ready for hearing, with the matter to be heard within 2 weeks, noting that the Application was filed in December 2019.

[12] The Applicant referred to the Full Bench decision in Visy Board Pty Ltd v Rustemovski (Visy)which identified “the Commission’s central obligation to provide a fair hearing to parties in proceedings before it”.

[13] The Applicant claimed that the relevant matters that the Commission must take into account in determining whether to grant a stay of proceedings were identified by Lockhart J in Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd (Sterling):

1. Which proceeding was commenced first

2. Whether the termination of one proceeding is likely to have a material effect upon the others

3. The public interest

4. The undesirability of two courts competing to see which of them determines common facts first

5. Consideration of circumstances relating to witnesses

6. Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted

7. The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues

8. How far advanced the proceedings are in each court

9. The law should strive against permitting multiplicity of proceedings in relation to similar issues

10. Generally balancing the advantages and disadvantages to each party

[14] The Respondent submitted that Visy was authority that the power of the Commission is “discretionary”.

[15] The Respondent referred to a more recent decision of Gostencnik DP in Esso Australia Pty Ltd, where he held:

“The same observation might also be made about a rigid application of the considerations identified in Sterling Pharmaceutical. In an application of this kind, the proper exercise of the discretion requires that relevant matters be taken into account and weighed in order to determine whether a proceeding should be adjourned. In other words, having regard to the relevant considerations what does justice require, or as Esso puts it, whether the interests of justice would be best served by the grant of a stay or an adjournment. Matters or circumstances that are relevant will of course vary in each case.”

[16] The Respondent argued that the decisions of Cross DP are central to the Applicant’s Federal Court case, therefore, it would not be appropriate for the Commission to deal with the matter whilst the Respondent is exercising its legal rights of appeal.

[17] Further, the Respondent argued that it was not appropriate for the Commission to deal with an issue when the outcome will be affected by the proceedings in the Federal Court, to which the Commission is also a respondent.

Consideration

[18] I have taken into account all of the submissions of the parties.

Determination

[19] I am satisfied that this decision requires the Commission to use its discretion and that the issues identified in Sterling are relevant considerations.

[20] I am satisfied that the Applicant should have the opportunity to put its case in a timely manner from the date of its application. The Applicant delayed pressing its application following a request by the Commission in 2020 to attempt to reach a settlement between the parties for the 2020 Agreement. Unfortunately, consent was unachievable between the Applicant and the Respondent. I also note that if the Respondent is unsuccessful in its appeal to the Federal Court, a further appeal may be lodged in the Hight Court. Such a possibility could delay this Application for a further 12 months.

[21] I am satisfied that my decision in not granting a stay will not prejudice either party in the proceedings before the Federal Court. Even if the Applicant is ultimately successful in having the Agreement terminated, the employees will be covered by the provisions of the Award. If the Respondent is successful in the Federal Court, then the 2020 Agreement is likely to be referred back to the Commission for further deliberation. The Federal Court proceeding is in relation to the 2020 Agreement, not the 2015 Agreement, which is the subject of this Application.

[22] The parties have previously provided submissions for the hearing of the Application. Final materials will be served within the next few days. To further delay the hearing would simply further frustrate the Applicant’s application.

[23] For the reasons stated above, the application by the Respondent to stay the Application is denied.

[24] The hearing will proceed on 15 October 2021, in accordance with the published Directions.

COMMISSIONER

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