BHP Billiton Iron Ore Pty Ltd v Construction, Mining, Energy, Timberyards, Sawmills and WOODWORKERS' Union of Australia (Western Australian Branch)

[2002] WASCA 16

JURISDICTION     :   WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT

CITATION:   BHP BILLITON IRON ORE PTY LTD -v- CONSTRUCTION, MINING, ENERGY, TIMBERYARDS, SAWMILLS AND WOODWORKERS' UNION OF AUSTRALIA (WESTERN AUSTRALIAN BRANCH) [2002] WASCA 16

CORAM:   ANDERSON J  (Presiding Judge)

HEARD:   4 FEBRUARY 2002

DELIVERED          :   4 FEBRUARY 2002

FILE NO/S:   IAC 10 of 2001

BETWEEN:   BHP BILLITON IRON ORE PTY LTD

Appellant

AND

CONSTRUCTION, MINING, ENERGY, TIMBERYARDS, SAWMILLS AND WOODWORKERS' UNION OF AUSTRALIA (WESTERN AUSTRALIAN BRANCH)
Respondent

Catchwords:

Industrial law - Appeal - Power to stay order for reinstatement pending appeal - Considerations - Need to show exceptional circumstances

Legislation:

Industrial Relations Act 1979 (WA), s 87(3)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr R L Hooker

Respondent:     Mr D H Schapper

Solicitors:

Appellant:     Mallesons Stephen Jacques

Respondent:     Derek Schapper

Case(s) referred to in judgment(s):

Burswood Resort (Management) Ltd v Australian Liquor, Hospitality & Miscellaneous Workers' Union (1996) 76 WAIG 1655

State School Teachers' Union of Western Australia & Anor v Bannon & Anor (1997) 77 WAIG 1647

Case(s) also cited:

Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685

Concut Pty Ltd v Worrell (2000) 176 ALR 693

Powerflex Services Pty Ltd v Data Access Corporation (1996) 137 ALR 498

Sharkey; Ex parte Food Preservers' Union of Western Australia [2000] WASC 259

West Australian Locomotive Engine Drivers' Firemen's & Cleaners Union v Hathaway (1995) 75 WAIG 1785

1. ANDERSON J:  This is an application to stay an order for reinstatement made in the Industrial Relations Commission on 28 May 2001 in relation to a locomotive driver who had been employed by the appellant at Nelson Point and who claimed to have been unfairly dismissed in September 2000.  The circumstances of the case are fully set out in the decisions that have been delivered below and which are reported in 81 WAIG 1393 and 81 WAIG 3031, they being the decision of Kenner C at first instance and the decision of the Full Bench on appeal from his judgment. 

2. The power to grant a stay of an order, if it exists at all, is to be found in s 87(3) of the Industrial Relations Act 1979 (WA).  It has been held in this Court that the provisions of that subsection are wide enough to include jurisdiction to grant a stay of an order made in the Commission.  I have little doubt that that is so and that  this Court does have the power to grant a stay of an order made below.  It would be surprising indeed if the Court did not have such power, and I think the intention of the legislature must have been - in formulating the provisions of the subsection referred to so widely - to include what one would naturally expect to find; namely, a power in an appropriate case to stay the order of the Commission from which an appeal is brought.

3. One case to which I refer (in which Franklyn J held that the subsection does include a power to stay) is State School Teachers' Union of Western Australia & Anor v Bannon & Anor (1997) 77 WAIG 1647.  However, it has also been held that the power will not be exercised and a stay will not be granted unless there are exceptional circumstances to justify it.  I refer to Burswood Resort (Management) Ltd v Australian Liquor, Hospitality & Miscellaneous Workers' Union (1996) 76 WAIG 1655.  I will accept this as the correct approach and I apply it in this case.  I think some regard must also be had to the strength of the appellant's case.

4. I am not persuaded that the circumstances are exceptional in this case.  The only circumstance that might possibly be described as exceptional is that before this employee will become operational as a locomotive driver, he will require retraining, perhaps lengthy retraining in view of the length of time that he has been not working as a locomotive driver.  In that time there have been technological changes as well as different and new locomotives commissioned. 

5. In respect to those areas of his vocation, it is natural to expect and the affidavit indicates that he will require substantial retraining, but I am not convinced that this is an exceptional circumstance.  Retraining where a person has been dismissed and is reinstated can hardly be regarded as exceptional.

6. That the employer is prepared to continue salary payments, as it is in this case, until the appeal is disposed of is a little unusual.  I accept that it may even be very unusual but of itself it does not constitute a relevant exceptional circumstance. 

7. Furthermore, I have distinct reservations as to the strength of the appellant's case generally and, in particular, reservations as to whether there is an error of law in the decision below.  I do not go into those matters for obvious reasons.  It is sufficient for me to say that, all in all, this is not a case in which this Court ought to make an order staying the order for reinstatement made below, and the application must be dismissed.