Burswood Resort (Management) Ltd v The Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch - [2000] WASCA 384

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT

CITATION: BURSWOOD RESORT (MANAGEMENT) LTD -v- THE AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH [2000] WASCA 384

CORAM: KENNEDY J (Presiding Judge)

HEARD: 2 JUNE 2000

DELIVERED : 2 JUNE 2000

PUBLISHED : 11 DECEMBER 2000

FILE NO/S: IAC 3 of 2000

BETWEEN: BURSWOOD RESORT (MANAGEMENT) LTD
Appellant
AND
THE AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH
Respondent

Catchwords:

Industrial law (WA) - Application for stay of proceedings in Industrial Relations Commission until determination of appeal or further order - Appeal to the Full Bench from Senior Commissioner successful - Matter remitted to Senior Commissioner - Appeal to Industrial Relations Court - Arguable case - Stay of proceedings granted

Legislation:

Nil

Result:

Application for stay granted

Representation:

Counsel:

Appellant: Mr R L Le Miere QC & Mr B Di Girolami
Respondent: Mr D J Kelly (Agent)

Solicitors:

Appellant: Mallesons Stephen Jaques
Respondent:

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

Norbis v Norbis (1986) 161 CLR 515
The Australian Tramway Employes Association v The Prahran and Malvern Tramway Trust (1913) 17 CLR 680
West Australian Locomotive Engine Drivers' Firemen's and Cleaners' Union of Workers v Schmid (1995) 76 WAIG 6

Case(s) also cited:

Burswood Resort (Management) Ltd v Australian Liquor Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch (1996) 76 WAIG 1655
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
West Australian Locomotive Engine Drivers' Firemen's and Cleaners' Union of Workers v Hathaway (1995) 75 WAIG 1785
Western Australian Mint v Australian Liquor Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch (1999) 79 WAIG 643

KENNEDY J (Presiding Judge): Judgment in this matter was delivered on 2 June 2000. It was then indicated that fuller reasons would be published later. These are those reasons.
In May 1999, a dispute arose between the parties to this appeal as to whether members of the respondent Union who are employed by the appellant should be at liberty to wear a Union badge in the workplace. A compulsory conference held under s 44 of the Industrial Relations Act 1979 having been unable to resolve the dispute, the matter proceeded to arbitration before the Senior Commissioner, with the respondent seeking a declaration from the Commission that, in all the circumstances, it would be harsh, oppressive or unfair for the appellant to penalise, dismiss or in any other way to discipline or disadvantage any employee because that employee chooses to wear a membership badge of the respondent whilst performing work for the appellant and/or does not comply with an instruction from the appellant not to wear the badge whilst performing that work.
As appears in the reasons for decision of the Senior Commissioner, the respondent and the Federated Liquor and Allied Industries Employees' Union of Australia, Western Australian Branch, Union of Workers ("the Liquor and Allied Industries Employees' Union") had constitutional coverage for the employees in question. The latter Union, and not the applicant, was, however, a party to the Burswood International Resort Casino Employees' Industrial Agreement 1997, which regulated the employment of the relevant employees. The term of that agreement had expired.
A number of the employees of the appellant were unhappy with the representation afforded to them by the Liquor and Allied Industries Employees' Union and they therefore decided to form their own Union, called the Burswood Resort Union of Employees. That association was never registered, but it became, in effect, integrated into the respondent. From a time in or about September 1998, some of those responsible for establishing the Burswood Resort Union of Employees began to wear the respondent's Union badge whilst performing their work. They did so, essentially, to advertise to their fellow employees that they were members of that Union. Subsequently, they took to wearing a badge identifying the Burswood Resort Union of Employees. They claim that they wore these badges without any criticism from the appellant's managers or supervisors until the middle of 1999, when they were instructed to cease wearing them. One of the employees was disciplined for continuing to do so.
The appellant argued before the Senior Commissioner that it was a term of the employment of the employees that they should not wear badges in the course of their employment unless they had been issued by the appellant or unless they were otherwise authorised by the appellant to wear them. It denied that it had either consented to its employees wearing the badges in question, or otherwise condoned the practice, claiming that the grooming and appearance of its employees plays a most important role in the industry. To this end it provides its employees with uniforms. It complained that the badges detracted from the concept of a uniform appearance by its staff.
The argument for the respondent was that the appellant's attitude towards the wearing of the Union membership badges was contrary to one of the principal objects of the Industrial Relations Act, namely, to encourage the formation of representative organisations of employees. In support of this argument, it relied upon the judgment of Isaacs and Rich JJ in The Australian Tramway Employes Association v The Prahran and Malvern Tramway Trust (1913) 17 CLR 680, at 694. It also claimed that the constitutional right to freedom of speech embodied a right in the employees to express publicly, by the wearing of a Union membership badge, that they were members of the respondent.
The learned Senior Commissioner found that it was a term of the employees' contract of employment that they should not wear badges, ornamental buttons or jewellery on their uniforms unless issued by, or otherwise authorised by, the appellant. It was also an express term of their employment that the employees should observe all of the appellant's policies and procedures and the rules and regulations outlined in the Employees' Handbook, as amended from time to time. The Grooming Regulations set out in the Handbook prohibited the wearing of badges on uniforms issued by the appellant unless the badges had been issued by the appellant, or otherwise authorised by it. The Senior Commissioner held that these provisions were neither unlawful, nor unreasonable. He accepted that it was important for the appellant, as a hospitality resort, to present a special image or identity and that the personal appearance of employees was an integral part of that ideal. He rejected the argument that the policy was being applied in a way which discriminated against the respondent and its members. As a result, the Senior Commissioner dismissed the respondent's application.
The respondent appealed to the Full Bench of the Industrial Relations Commission against the Senior Commissioner's dismissal of its claim. Grounds 3 and 4 of that appeal, which were eventually upheld by a majority of the Full Bench, were as follows:
"3.The Senior Commissioner erred in finding that the respondent's policy prohibiting the wearing of Union badges is not an unreasonable infringement on employees' right to freedom of speech and/or expression.
4.The Senior Commissioner gave insufficient weight to the uncontradicted evidence that the Union badge did not interfere with visual impact made by employees' uniforms to the public."
The formal orders made by the Full Bench were that the appeal be upheld on grounds 3 and 4 and that the order made at first instance be suspended, and the matter remitted to the Commission as constituted at first instance, to be heard and determined according to law.
The appellant has appealed against the decision of the Full Bench and, by notice of motion dated 23 May 2000, it sought an order that the proceedings of the Commission be stayed until the determination of the appeal, the appeal having been at that time listed for hearing on 1 August 2000 in this Court. The remitted matter was relisted for hearing before the Senior Commissioner on 7 June 2000.
An applicant for a stay of proceedings has the burden of showing that the circumstances justify a stay, on the principle that a litigant is normally entitled to the fruits of his litigation. At present, however, there are no immediate fruits to be enjoyed by the respondent, the decision appealed from having resulted in the remission of the matter to the Senior Commissioner, with the possibility, of course, of a further appeal to the Full Bench if either party should decide to challenge his decision.
The grounds upheld by the majority of the Full Bench clearly challenged the exercise by the Senior Commissioner of a discretionary judgment and, in my opinion, it was clearly arguable that the learned President and Beech C each merely exercised his own discretion in place of that of the Senior Commissioner, contrary to the principles laid down in Norbis v Norbis (1986) 161 CLR 515. It is not now necesssary to expand upon my reasons for forming this view. Furthermore, having regard to the pending appeal, it was clear that, if the appeal were to be successful, the remission of the matter to the Senior Commissioner would result in a waste of the Commission's resources and the imposing of unnecessary costs upon the parties. On the other hand, if the appeal should prove to be unsuccessful, there would be the advantage of having the Industrial Appeal Court resolve some of the issues upon which the members of the Full Bench were not unanimous prior to the further hearing before the Senior Commissioner. I was quite satisfied that these special circumstances, as well as the balance of convenience, justified the ordering of a stay - see the West Australian Locomotive Engine Drivers' Firemen's and Cleaners' Union of Workers v Schmid (1995) 76 WAIG 6. For these reasons, I considered that a stay of the proceedings in the Commission should be granted.
In the course of the hearing of its application for a stay, the appellant indicated its willingness to undertake to this Court, in the event of a stay being granted, to allow those employees of the appellant who had usually worn BRUE badges on their uniforms when on the gaming floor at the time of the interim order of Parks C dated 10 June 1999, to continue to wear those BRUE badges until the determination of the appeal herein or until further order. While recognising that the terms of the undertaking might give rise to some difficulties in its enforcement, depending as it would upon the establishing of the fact that employees seeking to take advantage of the undertaking had "usually" worn the badges, and also acknowledging the limited application of the undertaking, it nevertheless appeared to me to be desirable to require that undertaking.