Davids Distribution Pty Ltd v Hon Iain Ross
[1999] FCA 850
•25 JUNE 1999
FEDERAL COURT OF AUSTRALIA
Davids Distribution Pty Ltd v Hon Iain Ross [1999] FCA 850
INDUSTRIAL LAW – application for writ of mandamus directed to a Full Bench of the Australian Industrial Relations Commission requiring it to dismiss or terminate a bargaining period purportedly initiated – whether receipt of notice of initiation of bargaining period means dealing with an industrial dispute – whether the Full Bench of the Australian Industrial Relations Commission had power to terminate the bargaining period.
Workplace Relations Act 1996 (Cth) ss 111AAA, 170LA, 170MC(2), 170MD(2), 170MG(2), 170MH(2)&(3), 170MHA(3), 170MI,(1)&(2), 170MO(2), 170MW,(1),(2),(5)&(8), 170MX, 170MY, 170N, 170NA, 170LT, 170LV, 415(1)(d)
Industrial Relations Act 1996 (NSW)
Construction, Forestry, Mining and Energy Union v Giudice (1998) 159 ALR 1, applied
DAVIDS DISTRIBUTION PTY LTD v THE HONOURABLE IAIN ROSS, VICE PRESIDENT and the FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION consisting of the HONOURABLE JUSTICE PAUL MUNRO, the HONOURABLE ANN HARRISON, Senior Deputy President and RONALD JONES, Commissioner of the Australian Industrial Relations Commission and NATIONAL UNION OF WORKERS
N 138 of 1999
LEE, BRANSON and MARSHALL JJ
25 JUNE 1999
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 138 OF 1999
REMITTED FROM THE HIGH COURT OF AUSTRALIA
BETWEEN:
DAVIDS DISTRIBUTION PTY LTD
Prosecutor/ApplicantAND:
The HONOURABLE IAIN ROSS, VICE PRESIDENT and the FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION consisting of the HONOURABLE JUSTICE PAUL MUNRO, the HONOURABLE ANN HARRISON, Senior Deputy President and RONALD JONES, Commissioner of the Australian Industrial Relations Commission
First Respondents
NATIONAL UNION OF WORKERS
Second RespondentJUDGES:
LEE, BRANSON and MARSHALL JJ
DATE OF ORDER:
25 JUNE 1999
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 138 OF 1999
REMITTED FROM THE HIGH COURT OF AUSTRALIA
BETWEEN:
DAVIDS DISTRIBUTION PTY LTD
Prosecutor/ApplicantAND:
The HONOURABLE IAIN ROSS, VICE PRESIDENT and the FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION consisting of the HONOURABLE JUSTICE PAUL MUNRO, the HONOURABLE ANN HARRISON, Senior Deputy President and RONALD JONES, Commissioner of the Australian Industrial Relations Commission
First RespondentsNATIONAL UNION OF WORKERS
Second Respondent
JUDGES:
LEE, BRANSON and MARSHALL JJ
DATE:
25 JUNE 1999
PLACE:
SYDNEY
REASONS FOR JUDGMENT
THE COURT
The prosecutor, Davids Distribution Pty Ltd (“Davids”) applied to the High Court of Australia on 4 September 1998 for a writ of mandamus directed to the first respondents requiring them “to dismiss the bargaining period purportedly initiated by the Second Respondent or alternatively to terminate the said bargaining period in accordance with law”.
On 5 February 1999 Justice Gummow ordered by consent, inter alia, that further proceedings in the application for an order nisi for a writ of mandamus be remitted to this Court. In accordance with s415(1)(d) of the Workplace Relations Act 1996 (Cth) (“the WR Act”) the jurisdiction of this Court in the matter remitted to it by the High Court is required to be exercised by a Full Court of this Court.
Background
Davids is a wholesaler of grocery items, chiefly to independent grocery retailers. It operates in most states of Australia. Materially for the purposes of the present application, it employs storepersons at its premises at Blacktown and Silverwater in New South Wales and at Fyshwick in the Australian Capital Territory.
The employees of Davids engaged as storepersons at the above locations are members of the second respondent, National Union of Workers (“NUW”) in its New South Wales branch. The NUW is an organisation registered under the WR Act. For administrative convenience its membership is attached to various branches including its New South Wales branch.
Davids’ employees at Blacktown and Silverwater, the subject of this application, are also members of a state registered union called “National Union of Workers, New South Wales Branch” (“the State Union”). The name of the State Union is slightly misleading in that it is not a branch of any other body but a corporate entity in its own right under the Industrial Relations Act 1996 (NSW) (“the State Act”).
The terms and conditions of employment of Davids’ employees in New South Wales are regulated by an award and/or agreement made under the State Act.
In late 1997 and early 1998 Davids and the State Union were involved in negotiations with a view to reaching a new enterprise agreement under the State Act.
In the context of these negotiations Davids made application to the Industrial Relations Commission of New South Wales (“the State Commission”) for an award to be arbitrated by the State Commission.
Proceedings for an award in the State Commission commenced before Justice Maidment on 27 March 1998.
These proceedings were further dealt with in a preliminary way on 17 April 1998 in the State Commission.
On 23 April 1998 the NUW initiated a bargaining period under s170MI(2) of the WR Act by preparing, serving upon Davids and filing with the Australian Industrial Registry a notice of initiation of bargaining period in accordance with r58 of the Australian Industrial Relations Commission Rules 1998.
The notice stated that the NUW was giving notice to the Australian Industrial Relations Commission (“the AIRC”) that it intended to try “to make an agreement under Division 2 of Part VIB of the Act” with Davids in respect of the Blacktown, Silverwater and Fyshwick sites and “to have any agreement so reached certified under Division 4 of Part VIB of the Act”.
The notice was signed by Mr Belan in his capacity as secretary of the New South Wales branch of the second respondent, NUW.
At the time of the service of the notice the proceedings in the State Commission were unresolved and were due to recommence before Justice Schmidt on 6 May 1998.
On 29 April 1998 Davids issued an application in the AIRC under s170MW of the WR Act for an order that the AIRC suspend or terminate the bargaining period which commenced on 23 April 1998.
Also on 29 April 1998 Davids issued an application, purportedly pursuant to s111AAA of the WR Act, in which it sought an order that the AIRC “cease dealing with the industrial dispute being the proceedings constituted by the Notice of Initiating (sic) of Bargaining Period Matter No. C 21555 of 1998”.
On 11 May 1998 the NUW gave Davids notice of its intention to organise or engage in protected industrial action in accordance with s170MO(2) of the WR Act.
Davids’ application under s170MW of the WR Act and its purported application under s111AAA of the WR Act were heard by Vice President Ross in the AIRC on 15 May 1998.
Vice President Ross dismissed each application made by Davids in his decision, which was given on 12 June 1998.
In the s170MW application Vice President Ross held that:
· on the material before him he was not satisfied that the NUW was not genuinely trying to reach an agreement with Davids, and that;
· there was no demarcation dispute between NUW and the State Union so as to give rise to a consideration of the exercise of the AIRC’s discretion to terminate the bargaining period under s170MW(5) of the WR Act, and that;
· if there was a demarcation dispute no case had been established for the exercise of the AIRC’s discretion to terminate the bargaining period on that basis.
Davids sought leave to appeal to a Full Bench of the AIRC against the decision of Vice President Ross pursuant to s45 of the WR Act.
The application for leave to appeal was heard by a Full Bench of the AIRC (constituted by Justice Munro, Senior Deputy President Harrison and Commissioner Jones) on 22 June 1998. At the conclusion of the hearing the Full Bench announced that it refused leave to appeal and that it would later publish its reasons for that decision.
The reasons of the Full Bench were published on 3 August 1998 (Print No: Q4404).
In summary the Full Bench held as follows on the s170MW aspect of the case:
· it was reasonably open to Vice President Ross to conclude that the NUW was genuinely trying to reach a certified agreement under the WR Act; and,
· assuming that there was a demarcation dispute between the State Union and the NUW it was open to Vice President Ross not to be satisfied that he should exercise his discretion on the basis of such a dispute.
The Full Bench also considered that no arguable case had been demonstrated by Davids on the s111AAA issue.
The Full Bench’s reasoning on that issue was, in summary, as follows:
· Section 111AAA allows the AIRC to dismiss the whole or part of a matter to which the industrial dispute relates;
· in contrast to s111, s111AAA does not extend the meaning of industrial dispute to “any other proceeding before the Commission”;
· Part VI of the WR Act, in which s111AAA is found, concerns itself with the powers and functions of the Commission with respect to prevention and settlement of industrial disputes by conciliation and arbitration in reliance upon s51(xxxv) of the Constitution;
· Part VIA of the WR Act is founded upon heads of power other than s51(xxxv) of the Constitution;
· Part VIB of the Act, which deals with bargaining and the reaching of certified agreements relies in part on the conciliation and arbitration power but also upon other heads of power in the Constitution, including the corporations power in s51(xx) of the Constitution;
· Section 170LA of the WR Act reveals that the performance of the functions of the AIRC under Part VIB of the Act may have been subject to ss90 and 111(1)(g)(i), (ii) and (iii) but for s170LA(2) and (3);
· the main function of the AIRC under Div 8 of Part VIB of the WR Act is its power under s170MW to suspend or terminate a bargaining period;
· other sections of the WR Act in Div 8 of Part VIB in which the AIRC exercises powers or performs functions are:
§s170MY – conciliation and arbitration after the termination of a bargaining period;
§s170N – limited arbitration to deal with a safety net wage adjustment;
§s170NA – conciliation during a bargaining period.
· Div 8 of Part VIB of the WR Act also creates rights and obligations upon negotiating parties independently of any exercise of power or the performance of a function by the AIRC.
· It is unnecessary to decide whether s111AAA applies to a function performed or a power exercised by the AIRC because the AIRC has no function to perform in relation to the initiation of a bargaining period, as is plain from s170MI and related sections of the WR Act.
The Full Bench concluded that:
“…we are not satisfied that Davids has an arguable case that the decision subject to appeal proceeded upon an error of law in concluding that section 111AAA was not available for the purpose of terminating the bargaining period initiated by the NUW on 23 April 1998.”
The Full Bench acknowledged that its reasons for deciding that s111AAA of the Act was not available to Davids in the circumstances were different from those of Vice President Ross but it added that:
“We are satisfied that there is no substantial ground for concluding that his decision that section 111AAA did not apply was wrong in law.”
The s170MW Point
Mr G Hatcher appeared with Mr Cross, both of counsel, for Davids. Mr Hatcher did not submit that the AIRC erred in not terminating the bargaining period by reference to s170MW(5) of the WR Act.
In the context of s170MW(2) of the WR Act, Mr Hatcher’s short submission was that the Full Bench misdirected itself by finding that for the NUW to be considered to be genuinely seeking an agreement it did not matter that “it may be relatively indifferent to whether any such agreement is certified in the Federal or in the State jurisdiction”.
Although formally pressed, Mr Hatcher effectively conceded that his submission regarding s170MW(2) of the Act was bound to fail having regard to the judgment of a Full Court of this Court in Construction, Forestry, Mining and Energy Union v Giudice (1998) 159 ALR 1, (at 9).
Vice President Ross was not satisfied, in the exercise of his discretion, that the bargaining period should be terminated. The Full Bench held that it was reasonably open for him to so conclude. It follows that the AIRC committed no legal error in so deciding.
The Full Bench’s additional observations, regarding the NUW being “relatively indifferent” as to the venue for the certification of an agreement, merely placed an unnecessary gloss on its earlier critical finding that the Vice President made no error in the exercise of his discretion at first instance.
The s111AAA Point
The submissions put by Mr Hatcher regarding s111AAA of the WR Act were in substance the same submissions which were put to the Full Bench of the AIRC. We say, in substance, because Mr Hatcher contended before the Court that the notice of initiation of bargaining period, and hence the bargaining period itself, should be dismissed only in part. That leaves extant a notice of initiation of bargaining period and a bargaining period with respect to Davids’ operations at Fyshwick.
It should be noted that no application was made to the AIRC to dismiss only part of the notice. The application made to the AIRC was an application for an order “to cease dealing with the industrial dispute being the proceedings constituted by the Notice of Initiating (sic) of Bargaining Period Matter No. C 21555 of 1998”. Given the conclusion we have reached however, nothing ultimately turns on this aspect of Davids’ submission.
In the course of dealing with an industrial dispute the AIRC may be satisfied that the wages and conditions of employment of employees whose wages and conditions of employment are the subject of the industrial dispute are governed by a State award or State employment agreement. If the AIRC is so satisfied it is compelled to stop dealing with the industrial dispute in relation to those employees unless satisfied that so doing would not be in the public interest.
In ceasing to deal with an industrial dispute the AIRC may dismiss the whole or part of a matter to which the dispute relates or it may refrain from hearing or determining the industrial dispute or part of it. For example, the AIRC may cease to deal with a matter relating to annual leave where the annual leave entitlements of the relevant employees are subject to a State award that specifically deals with that issue. The AIRC may also refrain from further hearing the part of the industrial dispute which relates to one State, because of the existence of a State award in that State, but otherwise deal with the remainder of the dispute where federal or no industrial prescription applies.
The AIRC’s power to cease dealing with an industrial dispute is only exercisable if the AIRC is, in fact, actually dealing with an industrial dispute.
Mr Hatcher submitted that the function performed by the AIRC, in relation to the initiation of a bargaining period, is to receive the notice of initiation of a bargaining period in accordance with s170MI(2) of the WR Act.
In our view the AIRC does not perform any function in relation to the initiation of a bargaining period.
The bare receipt of a document is not the performance of a function to which the WR Act applies. A Court registry may receive a notice of motion but no function will be performed in respect of the motion until it is heard. So it is with the AIRC. The AIRC has no role to play in the preparation or service of a notice of initiation of a bargaining period. The WR Act gives a right to an organisation, an employer or an employee to initiate a bargaining period by serving such a notice. See s170MI(1) of the WR Act.
The service of the notice, without more, does not enliven the jurisdiction of the AIRC in any respect. The jurisdiction of the AIRC to exercise powers and perform functions is contained in Div 8 of Part VIB of the WR Act viz: ss170LT, 170LV, 170MC(2), 170MD(2), 170MG(2), 170MH(2) and (3), 170MHA(3), 170MW(1) and (8), 170MX, 170MY, 170N and 170NA.
At no time in the sequence of events recounted in these reasons under the heading “Background” did Davids or the NUW seek to have the AIRC perform any function with regard to an industrial dispute or enliven the AIRC’s jurisdiction in any respect other than in the s170MW application by Davids.
Consequently in our view the Full Bench was correct in concluding that s111AAA of the WR Act has no application to the act of initiating a bargaining period.
The Full Bench found it unnecessary to deal with the submission that s170MW of the WR Act constitutes a code in relation to the termination of bargaining periods. We also find it unnecessary to deal with that issue, save to say that there appears to be no other source of power for the AIRC to terminate a bargaining period than that found in s170MW of the WR Act.
In our opinion there is no substance in the contention that the AIRC erred in law in holding that it had no jurisdiction to deal with Davids’ purported application under s111AAA of the Act.
Order
In the circumstances it is appropriate to order that the application be dismissed.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate:
Dated: 25 June 1999
Counsel for the Prosecutor/Applicant: Mr G Hatcher with Mr B Cross Solicitor for the Prosecutor/Applicant: Middletons Moore & Bevins Counsel for the Respondents: Mr R Kenzie QC with Mr R Reitano Solicitor for the Respondents: Maurice May & Co Date of Hearing: 18 May 1999 Date of Judgment: 25 June 1999
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