Ex parte IBM Global Services Australia Ltd

Case [2005] FCAFC 66

FEDERAL COURT OF AUSTRALIA

IBM Global Services Australia Limited in the matter of an Application for Writs of Certiorari and Prohibition, against the Australian Industrial Relations Commission [2005] FCAFC 66

INDUSTRIAL LAW – industrial dispute – finding by Australian Industrial Relations Commission that industrial disputes existed between union and two employers – whether jurisdictional error – whether employees in respect of whom demands made eligible to join union – construction of rules of union relating to eligibility for membership – whether information technology incidental, ancillary or complementary to supply, installation or maintenance of telecommunications services – identification of part of business of employer – identification of principal function of part of business

WORDS AND PHRASES – ‘industrial dispute’, ‘incidental, ancillary or complementary’, ‘part of a business’, ‘principal function’

Workplace Relations Act 1996 (Cth) ss 45(1)(a), 412, 101, 4(1), 4(3), 110(2)(b), 10, 20, 204, 149(d), 170LB, 415(1)(d)
Judiciary Act 1903 (Cth) ss 78B, 44, 39B(1), 31, 32
Constitution ss 75(v), 51(xxxv)
Conciliation and Arbitration Act 1904 (Cth) (repealed)
Evidence Act 1995 (Cth) ss 8, 48(1)(f), 52, 157, 190
Telecommunications Act 1991 (Cth) s 5
Telecommunications Act 1975 (Cth) (repealed) ss 4, 21
Telecommunications Amendment Act 1988 (Cth) s 6
Australian Telecommunications Corporation Act 1989 (Cth) (repealed) s 12
Australian and Overseas Telecommunications Corporation Act 1991 (Cth) ss 11, 3, 26
Industrial Relations Act 1988 (Cth) s 204(1)

Pitfield v Franki (1970) 123 CLR 448 considered
R v Marshall; Ex parte Federated Clerks Union of Australia (1975) 132 CLR 595 considered
R v Cook; Ex parte Twigg (1980) 147 CLR 15 considered
R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 cited
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 (2000) 204 CLR 83 cited
Craig v South Australia (1995) 184 CLR 163 cited

Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 206 CLR 323 cited
Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21 (1999) 197 CLR 611 cited
R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 cited
R v Coldham; Ex parte Australian Social Welfare Union (1983) 153 CLR 297 considered
R v Williams; Ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 153 CLR 402 cited
Troja v Australasian Meat Industry Employees’ Union(Victorian Branch) (1978) 46 FLR 340 cited
Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 (2003) 211 CLR 476 considered
O’Toole v Charles David Pty Ltd (1991) 171 CLR 232 cited
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 cited
R v Alley; Ex parte New South Wales Plumbers and Gasfitters Employees’ Union (1981) 153 CLR 376 cited
R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138 cited
Attorney-General for Queensland v Riordan (1997) 192 CLR 1 considered
Bolwell v Australian Telecommunications Commission (1982) 61 FLR 154 cited
R v Holmes; Ex parte Public Service Association of New South Wales (1977) 140 CLR 63 considered
R v McMahon; Ex parte Darvall

Continue reading Ex parte IBM Global Services Australia Ltd

Sign in free to access the full text

Details
AGLC
Ex parte IBM Global Services Australia Ltd [2005] FCAFC 66
Case
[2005] FCAFC 66
Decision Date

CaseChat Overview and Summary

IBM Global Services Australia Ltd and EDS (Australia) Pty Ltd sought remedies of prohibition and certiorari against the Australian Industrial Relations Commission, claiming that the Full Bench's findings of industrial disputes between the Community and Public Sector Union (CPSU) and each of the applicants were beyond the Commission's jurisdiction. The primary issues revolved around the interpretation of Rule 3E(b) of the CPSU's rules, determining whether the services provided by the applicants fell within the scope of this rule, and whether the Commission's findings of industrial disputes exceeded its jurisdiction. The court had to consider the nature of the evidence and the application of the Evidence Act 1995 (Cth) in the context of the Commission's proceedings.

The court held that the Full Bench's findings of industrial disputes were within the Commission's jurisdiction, as the services provided by the applicants fell within the scope of Rule 3E(b) of the CPSU's rules. The court found that the Commission was not bound by the rules of evidence and could inform itself on any matter in a manner it deemed just. The court further determined that the Full Bench's findings did not exceed the Commission's jurisdiction, and the applicants had not established any ground for the remedies sought. The court concluded that the Commission's findings of industrial disputes were valid, and the applications for prohibition and certiorari must be dismissed.

In light of the court's determination, the Full Court granted an order nisi for prohibition and certiorari, which was then discharged, and dismissed the applications. The court emphasised that its judgment was final and not interlocutory, and the orders proposed by Gray J were made to dispose of the proceedings. The Full Court agreed with Gray J's construction of Rule 3E(b) of the CPSU's rules and the conclusion that the CPSU could create a dispute with IBM Global Services Australia Ltd and EDS (Australia) Pty Ltd in relation to the employees in question.

Orders

Orders of the court

1. An order nisi for prohibition and certiorari, directed to the first respondents, be granted.

2. The order nisi be discharged.

3. The application be otherwise dismissed.

Background

Background to the litigation

Before dealing with questions of construction of r 3E(b), it is necessary to turn to the facts and to the reasons of the Full Bench.The facts The issues arising in these cases resulted from a decision of Telstra to ‘outsource’ information technology services, which had been provided by its own employees. Telstra entered into contracts with IBM GSA and EDS for the provision of information technology services. The contracts involved the transfer from Telstra of premises formerly occupied and used by Telstra employees, and of those employees themselves, to IBM GSA and EDS respectively. In relation to EDS, the Full Bench appears to have accepted a version of the facts derived from evidence that had been accepted by Senior Deputy President Drake. The Full Bench also heard additional evidence, which it summarised in its reasons. From the material set out in the Full Bench’s reasons, the following summary of facts may be derived. EDS had organised its business into four lines of business. The largest, in terms of income generation and the dedication of employees and other resources, was called Information Solutions or ‘ISolutions’. ISolutions offered information technology consulting, design, planning, development, applications, implementation and management. Approximately 75 per cent of EDS employees had some involvement with ISolutions. The second line of business, management consulting, provided top-level advice on business strategies, organisation, operations and technology, and an executive search service. The third line of business, business process management, involved performing a client’s business processes or functions, to improve the client’s business performance. Finally, the ESolutions line of business provided strategic planning, design, implementation and ongoing management of electronic business, including extensive internet and intranet consultancy assignments. The contract between Telstra and EDS was treated as an ISolutions contract. It involved applications, development and support. EDS provided software development and maintenance support to Telstra in Telstra’s operation of its billing and shared services functions. To some extent, services were provided from more than one line of business in combination. The role of EDS in the Telstra business billing was quite minor. It involved the provision of maintenance and support of Telstra billing applications, a component of Telstra’s billing function. EDS provided a complex set of computer programs to assist Telstra in producing its bills. These programs were supported and maintained for Telstra. Telstra billed the customer and provided the billing rate. EDS provided the computer program for Telstra to use as a tool to produce those accounts. Telstra collected the billing information, which was fed directly into the billing system maintained by Telstra, without any need for data entry. The information was recorded when the service was used, and was extracted without human intervention. EDS provided a small part of the billing function, namely the provision of software that produced the bills. If requested, EDS would design, develop and maintain or enhance a system for Telstra. EDS corrected problems within Telstra’s billing system. EDS looked after various Telstra databases containing records that were shared by a number of systems. The maintenance and function of the system was EDS’s responsibility. The systems were required to be available for a number of other systems, as a central pool of information.

Evidence

Evidence Before The Court

As Gray J has noted, the joint judgment of Brennan CJ and McHugh J in Attorney-General for the State of Queensland v Riordan (1997) 192 CLR 1 at 14 indicates that evidence in proceedings such as these can be constituted by the transcript of evidence and documentary evidence before the Commission. That approach is consistent with the following observations of Mason J in R v Alley; Ex parte NSW Plumbers and Gasfitters Employees’ Union (1981) 153 CLR 376. As to the role of the High Court, and by parity of reasoning this Court, his Honour said at 389-390:… It has been repeatedly affirmed by this Court that it has to determine independently for itself whether in a particular case the Commission has or lacks jurisdiction and that in reaching its decision this Court will apply the ordinary rules of evidence: Federated Engine-Drivers’ and Firemen’s Association of Australasia v Broken Hill Proprietary Co Ltd; R v Blakeley; Ex parte Association of Architects, etc., of Australia. There are several reasons why this is so. The Commission is not a court. It is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks just: s 40(1)(b). Conversely, it may apply, or by bound to apply by virtue of the statute, a specific rule of evidence or procedure which has no application to the High Court. And it is at least doubtful whether Parliament could legislate so as to qualify by a rule of evidence (not being an onus of proof provision) the High Court’s constitutional jurisdiction under s 75(v) to determine whether an interstate industrial dispute exists: see Milicevic v Campbell.In passing I note the comments of Fullagar J in Blakeley. His Honour, though maintaining the doctrine that this Court must determine for itself questions on which the jurisdiction of the Commission depends, drew a distinction between questions of law and questions of fact. He said that if the jurisdiction depends on matters of fact, considerable weight is attached to the decision of the court. He was, of course, referring to the old Arbitration Court. His remarks have equal application to the Commission. He concluded by saying, after referring to the remarks of Isaacs J. in Caledonian Collieries Ltd v Australasian Coal and Shale Employees’ Federation [No 1]: “It may be more correct to say that, as to fact, a doubt as to error is resolved in favour of the decision of the inferior tribunal.” The weight to be given to the Commission’s decision will depend on the circumstances. If the evidence remains the same, if the Full Bench on appeal has confirmed the decision at first instance and if the issue of fact is one in the resolution of which the Commission’s knowledge of industry specially equips it to provide an answer, greater weight will be accorded than in cases in which one or more of these factors is absent.(Emphasis added) The law regulating the admission of evidence in any proceedings in the original jurisdiction this Court is the Evidence Act 1995 (Cth) ("the Evidence Act"), subject to any legislative qualifications or exceptions: see s 8 of that Act. Different considerations may obtain in the High Court for the reasons alluded to by Mason J when referring to Milicevic v Campbell (1975) 132 CLR 307 at 318 -319. Nonetheless (and perhaps for reasons referred to in the preceding sentence) it does not appear that in Attorney-General for the State of Queensland v Riordan any issue arose about the operation of the Evidence Act. At the time that matter was argued in the High Court, the Evidence Act had been operating for less than two years.

Decision

Reasons for decision

GRAY, WHITLAM AND MOORE JJ
The problem may be no more than one of the terms in which the Full Bench expressed its records of findings, and may therefore be remediable within the Commission, by means of its power to vary its findings, expressed in s 101(1) of the WR Act. Alternatively, each case may be viewed as one in which the Full Bench clearly did not exceed the Commission’s jurisdiction when it made findings of dispute, because of those elements of the findings relating to the Clayton Data Centre and the MSSC respectively. Even if the other element of each finding of dispute were to be found to involve a finding beyond the Commission’s jurisdiction, this would not necessarily give rise to a right to relief. Only if, in the future, the Commission made, or proposed to make, an award which was not in settlement of an industrial dispute, would the occasion arise for a grant of prohibition. In that circumstance, it would be crucial to know whether the Commission had been invited to vary its finding of dispute by revoking whatever part of it that was found not to relate to an actual industrial dispute.Conclusion For the foregoing reasons, both IBM GSA and EDS have failed to establish any ground for the remedies of prohibition and certiorari against the Commission, arising from the Full Bench’s findings that industrial disputes exist between the CPSU and IBM GSA and EDS respectively. The applications must be dismissed. In order to make it clear that the Court’s judgment is final, and not interlocutory, in each case the Court should grant an order nisi and discharge it, as well as dismissing the application. I am greatly indebted to Gray J for the exposition of the issues and evidence in these two proceedings. I agree with his Honour’s construction of par (b) of the definition in Rule 3E of the CPSU’s rules, and I also agree with the conclusion that services provided by IBM GSA and EDS fell within the scope of that rule. It follows that the applicants have not made out any ground for relief and that the orders proposed by Gray J should be made so as to dispose of the proceedings. I have gratefully read the judgment of Gray J in a draft form. I agree with his Honour's reasons concerning the proper construction of eligibility rules of the Community and Public Sector Union ("CPSU") and, having regard to that reasoning, his conclusion that the CPSU can create a dispute with IBM Global Services Australia Ltd and EDS (Australia) Pty Ltd in relation to the employees in question. I agree with the orders his Honour proposes. I only wish to add some observations about two matters. The first concerns the state of the evidence in the proceedings in this Court. The proceedings are in the original jurisdiction of the Court though, by operation of s 415(1)(d) of the Workplace Relations Act 1996 (Cth) ("the WR Act"), that jurisdiction must be exercised by a Full Court constituted by at least three judges as the proceedings relate to the exercise of powers under the WR Act by a Presidential member of the Australian Industrial Relations Commission ("the Commission").

Ratio Decidendi

Legal Principle Established

Established by: GRAY, WHITLAM AND MOORE JJ

Full text does not contain this section.