Burswood Catering and Entertainment Pty Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch

[2002] WASCA 107

BURSWOOD CATERING AND ENTERTAINMENT PTY LTD -v- AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH [2002] WASCA 107

Jurisdiction:	WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT	Citation No:	[2002] WASCA 107
Case No:	IAC:5/2002	Heard:	23 APRIL 2002
Coram:	ANDERSON J	Delivered:	23/04/02
No of pages:	6	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	BURSWOOD CATERING AND ENTERTAINMENT PTY LTD AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH
Catchwords:	Industrial Appeal Court Application for stay of order pending appeal Arguable grounds of appeal Whether exceptional circumstances
Legislation:	Industrial Relations Act 1979, s 23(1)
Case References:	Nil BHP Billiton Iron Ore Pty Ltd v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia, Western Australia Branch (2002) 82 WAIG 209 Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549 Briginshaw v Briginshaw (1938) 60 CLR 336 Burswood Resort (Management) Ltd v Australian Liquor, Hospitality & Miscellaneous Workers Union (1996) 76 WAIG 1655 Greater Dandenong City Council v Australian Municipal Clerical and Services Union [2001] FCA 349 Industrial Equity Ltd v Blackburn (1977) 137 CLR 567 Maritime Union of Australia v Geraldton Port Authority (1999) 165 ALR 67 Minister for Labour Relations & Ors (2001) WAIRC 03333 Robe River Iron Associates v The Amalgamated Metal Workers & Shipwrights' Union of Australia (1993) 73 WAIG 1993 Smith, Stone & Knight Ltd v Birmingham Corporation [1939] 4 All ER 116 Tracy Village Sports and Social Club v Walker (1992) 111 FLR 32 Walker v Wimborne (1976) 137 CLR 1

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT CITATION : BURSWOOD CATERING AND ENTERTAINMENT PTY LTD -v- AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH [2002] WASCA 107 CORAM : ANDERSON J HEARD : 23 APRIL 2002 DELIVERED : 23 APRIL 2002 FILE NO/S : IAC 5 of 2002 BETWEEN : BURSWOOD CATERING AND ENTERTAINMENT PTY LTD

Appellant

AND

AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH
Respondent

Catchwords:

Industrial Appeal Court - Application for stay of order pending appeal - Arguable grounds of appeal - Whether exceptional circumstances

Legislation:

Industrial Relations Act 1979, s 23(1)

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Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant : Mr T H F Caspersz & Mr D F Parker
Respondent : Mr D H Schapper

Solicitors:

Appellant : Blake Dawson Waldron
Respondent : D H Schapper

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

Nil

Case(s) also cited:

BHP Billiton Iron Ore Pty Ltd v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia, Western Australia Branch (2002) 82 WAIG 209
Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549
Briginshaw v Briginshaw (1938) 60 CLR 336
Burswood Resort (Management) Ltd v Australian Liquor, Hospitality & Miscellaneous Workers Union (1996) 76 WAIG 1655
Greater Dandenong City Council v Australian Municipal Clerical and Services Union [2001] FCA 349
Industrial Equity Ltd v Blackburn (1977) 137 CLR 567
Maritime Union of Australia v Geraldton Port Authority (1999) 165 ALR 67
Minister for Labour Relations & Ors (2001) WAIRC 03333
Robe River Iron Associates v The Amalgamated Metal Workers & Shipwrights' Union of Australia (1993) 73 WAIG 1993
Smith, Stone & Knight Ltd v Birmingham Corporation [1939] 4 All ER 116
Tracy Village Sports and Social Club v Walker (1992) 111 FLR 32
Walker v Wimborne (1976) 137 CLR 1

(Page 3)

1 ANDERSON J: This is an appeal in which there is an application for an order to stay a decision of the Commission in Court Session, dated 22 March 2002, to make an award in the exercise of its powers under s 23(1) of the Industrial Relations Act1979 (WA) binding on the applicant. The award is, broadly speaking, in the same terms as an industrial agreement dated 24 August 2001 entered into between another company in the Burswood group, Burswood Resort Management Ltd, and the respondent.

2 The main ground, though not the only ground, of appeal comes down to a complaint that the Commission in Court Session justified the making of the award on the basis that the applicant had been incorporated so as to avoid the binding effect of the Burswood Resort Management Ltd agreement, or that one of the reasons, and not an insubstantial one, for the incorporation of the applicant was to avoid the binding effect of that agreement.

3 The facts, briefly stated, are that the applicant was incorporated about a month after the Burswood Resort Management Ltd industrial agreement was registered, and it was incorporated as a wholly owned subsidiary of Burswood Ltd, the holding company within the Burswood group of companies. After the applicant was incorporated, it took over some of the employees of Burswood Resort Management Ltd who were engaged in the catering and entertainment aspect of that company's business, leaving other employees who were engaged in the provision of gaming services with Burswood Resort Management Ltd.

4 The applicant was incorporated to engage in the industry of restaurant and catering services and was therefore bound by the common rule award known as the Restaurant, Tearoom and Catering Workers Award of 1979. The union, the respondent in this case, complained that the incorporation of the applicant and the shifting of some, most or perhaps all of the employees engaged in the food and beverage side of Burswood Resort Management Ltd's business, across to the applicant was simply a device to avoid the burden of the agreement in relation to those employees or, at any rate, that this was a not insubstantial reason for the new arrangement.

5 The Commission in Court Session found there to be what might be described as an "actionable inequity" in the treatment of the transferred workers because the incorporation of the applicant was, as the Commission in Court Session found, for the purpose of reducing the terms

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and conditions of the employment of staff. That finding is found in pars 48 and 68 of the Commission in Court Session's reasons for decision.

6 The applicant pleads in its grounds of appeal that there was no or no sufficient evidence to support such a finding. Essentially, the applicant argues that the inference that the corporate rearrangement was a device to avoid the burden of the agreement on its business operations was not open to the Commission in Court Session. It may be accepted that this appeal ground raises a question of law.

7 Mr Caspersz on behalf of the applicant also points out that the Commission in Court Session justified its decision to make a special award binding on the applicant by finding, for example, that the applicant was merely the agent of Burswood Resort Management Ltd; and that the circumstances were such as to allow the Commission in Court Session to pierce the corporate veil, that is, that the Commission in Court Session was entitled to hold that the applicant is merely a paper charade to hide the true identity of the employer of the workers. Mr Caspersz pointed out that the Commission in Court Session justified its decision to make a special award by reference to what is known as principle 10 of the wage fixing principles, holding that that principle applied to the circumstances of this case.

8 Mr Caspersz argued that there was no basis for these findings which either involved a misapplication of legal principle, or in the case of the application or purported application of principle 10, a failure to make basic findings required to be made before that principle could be invoked.

9 Accepting all of the matters raised by Mr Caspersz to be arguable, what is before me today is an application for a stay of the Commission's orders, and it must be borne in mind that the court will not grant a stay of the Commission's orders except in exceptional circumstances.

10 The reasons for that have been often stated, and there is no need for me to state them again. Notwithstanding the many points made by Mr Caspersz concerning the prospect of the appeal ultimately being successful, the question remains on this application for a stay of proceedings - that is, a stay of the award made by the Commission in Court Session in the purported exercise of its powers under s 23(1) of the Industrial Relations Act - whether I am persuaded that there are exceptional circumstances to stay that award. I am not so persuaded.

11 The consequences of the Commission's order in the form of the award is that certain of the applicant's employees will receive more

(Page 5)

advantageous terms of employment in certain circumstances than would otherwise have been the case had the award been not made.

12 They are, so far as I understand the facts, not by any means all of the applicant's workforce although exactly how many employees the applicant presently has is a little unclear. There is evidence that the applicant intends to bring over, if I can use that expression, from Burswood Resort Management Ltd, a great deal more staff than presently are on its books, and it may also recruit and engage staff not presently employed within the Burswood group. Not all of these staff will be paid under the old common rule. It is not the intention of the applicant to employ these staff under the old award. There is affidavit evidence to the effect that the applicant intends to employ a large number of people in the not too distant future on terms not less advantageous than the terms of the Burswood Resort Management Ltd agreement. There is no evidence that the applicant cannot bear the burden of the new award, and the evidence to which I have just referred stands as some evidence to the contrary. No exceptional circumstances can therefore be found in that aspect of the matter.

13 I accept, for present purposes, that the appeal grounds as developed in argument by Mr Caspersz are plainly arguable, but I cannot say that the applicant's case is so strong that this of itself would constitute exceptional circumstances. There may be cases in which the decision below is so obviously wanting in merit that the strength of the applicant's case is in itself an exceptional circumstances, but this is not a case within that category, and there are not really any other matters that do qualify as exceptional circumstances.

14 Mr Caspersz made much of the fact that there were findings of unconscionable and inequitable conduct by the Commission in Court Session, findings which, in effect, held the applicant, or someone within the Burswood group, guilty of moral turpitude in the devising of this corporate arrangement. Whether the decision of the Commission in Court Session goes that far I do not say at present, but even if it were so, a stay of the award would not affect that matter, so that is not, as I see it, an exceptional circumstance justifying a stay of proceedings.

15 I am not really impressed with the force of the argument that the new award will cause the applicant to suffer irremediable losses in the form of lost business opportunities pending the appeal if a stay is not granted. Neither do I believe that the fact that administrative resources may be wasted in converting to the new award and converting back again should

(Page 6)

the appeal be successful is an exceptional circumstance. I would venture to suggest that that administrative burden is an ordinary consequence of orders of this kind made in this field.

16 They are my reasons for concluding that this case does not present exceptional circumstances such as to justify an order that the award made by the Commission in Court Session be stayed pending the hearing of the appeal, and the application must be dismissed.