NSW Teachers Federation v Industrial Relations Commission of NSW

[2009] NSWCA 422

NEW SOUTH WALES COURT OF APPEAL

CITATION:
NSW Teachers Federation v Industrial Relations Commission of NSW [2009] NSWCA 422
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
40411/2009

HEARING DATE(S):
07/12/2009

JUDGMENT DATE:
7 December 2009

EX TEMPORE DATE:
7 December 2009

PARTIES:
New South Wales Teachers Federation - Applicant
Industrial Relations Commission of New South Wales - 1st Respondent
Michael Coutts-Trotter, Managing Director of Technical and Further Education Commission - 2nd Respondent

JUDGMENT OF:
Spigelman CJ Macfarlan JA Handley AJA    

LOWER COURT JURISDICTION:
Industrial Relations Commission of NSW

LOWER COURT FILE NUMBER(S):
IRC 513 of 2009

LOWER COURT JUDICIAL OFFICER:
Boland J President; Sams DP; Grayson DP

LOWER COURT DATE OF DECISION:
09/09/2009

LOWER COURT MEDIUM NEUTRAL CITATION:
[2009] NSWIRComm 147

COUNSEL:
S Crawshaw SC/M Gibian - Applicant
P Kite SC/M Fraser - Second Respondent

SOLICITORS:
Federation Law - Applicant
Crown Solicitor’s Office - Second Respondent

CATCHWORDS:
INDUSTRIAL ARBITRATION (NSW) – conciliation – member of Commission attempting conciliation – Full Bench giving directions in aid of conciliation by one member – other members had not attempted conciliation – not disqualified – Industrial Relations Act s 173.
JUDGES – disqualification – judge attempted conciliation – Full Bench giving directions in aid of conciliation by one member – other judges not attempting conciliation – other judges not disqualified – Industrial Relations Act s 173.

LEGISLATION CITED:
Industrial Relations Act s 173

CATEGORY:
Principal judgment

CASES CITED:

TEXTS CITED:

DECISION:
Summons dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40411/09

SPIGELMAN CJ
MACFARLAN JA
HANDLEY AJA

7 DECEMBER 2009

NEW SOUTH WALES TEACHERS FEDERATION  v  INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES AND ANOR

CATCHWORDS

INDUSTRIAL ARBITRATION (NSW) – conciliation – member of Commission attempting conciliation – Full Bench giving directions in aid of conciliation by one member – other members had not attempted conciliation – not disqualified – Industrial Relations Act s 173.

JUDGES – disqualification – judge attempted conciliation – Full Bench giving directions in aid of conciliation by one member – other judges not attempting conciliation – other judges not disqualified – Industrial Relations Act s 173.

HEADNOTE

An industrial dispute arose between the New South Wales Teachers Federation (the Union) and the Technical and Further Education Commission represented by its managing director over the implementation of cost savings pursuant to cl 47 of the Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award 2009.  The  dispute was notified to the Commission on 14 April, and Walton VP attempted conciliation.  On 1 July the managing director filed an application to vary the Award which was listed for hearing before a Full Bench on 14 September.  Because of threatened industrial action by members of the Union the dispute was listed before a Full Bench on 4, 13 and 25 August and 1 September.  The Full Bench gave directions to the Union on 4 and 17 August.  On 1 September Walton VP signed a certificate of attempted conciliation under s 135(2) which, under the Act, permitted the Commission to proceed to arbitration.  The Union objected, to Walton VP participating in the arbitration proceedings because he had attempted conciliation, and pursuant to s 173(1), he immediately stood aside.  The Union took the same objection to the other two members of the Full Bench, who declined to stand aside.  A Full Bench which included the other two members proceeded to exercise arbitration powers.  The Union brought judicial review proceedings to quash the orders and awards of the Full Bench of the ground that two of its members were disqualified by s 173(1).  HELD:  refusing the relief sought, that the two members of the Full Bench who had joined in giving directions under s 134(1) had given them in aid of conciliation being undertaken by Walton VP but they had not themselves attempted conciliation, and were not disqualified.

CATCHWORDS

Summons dismissed with costs.

IN THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF APPEAL

40411/09

SPIGELMAN CJ
MACFARLAN JA
HANDLEY AJA

7 DECEMBER 2009

NEW SOUTH WALES TEACHERS FEDERATION  v  INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES AND ANOR

Judgment

1. HANDLEY AJA:  The Teachers Federation (The Union) has moved this Court to judicially review decisions of President Boland and Deputy President Grayson of the Industrial Relations Commission who declined to disqualify themselves from hearing arbitration proceedings.  Judicial review was also sought in respect of later decisions in which the President and Deputy President participated on 1 September, 15 August and 13 November. 

2. The President and Deputy President held that they were not disqualified by s 173 of the Industrial Relations Act (the Act), from exercising arbitration powers in relation to an industrial dispute between the Union and the Technical and Further Education Commission (TAFE) represented by its managing director. 

3. The dispute arose from the making of (Teachers in TAFE and Related Employees) Salaries and Conditions Award 2009 in February 2009 which contained cl 47.  This provided that further cost savings were to be achieved to fund the salary increases granted by the Award above 2.5% per annum.  Clause 47.1 provided:

   “In order to fund the salary increases provided under this award, the parties have committed to the identification and implementation of further employee related reform measures and cost savings to improve TAFE operational efficiency and competitiveness.”

4. A working party was established to identify and agree on the changes to the work conditions of the teachers that would be necessary.  The parties acknowledged that if agreement could not be reached the matter would be arbitrated.  Agreement could not be reached and on 14 April the managing director notified the Commission of an industrial dispute pursuant to s 130 of the Act. 

5. The dispute was listed before Justice Kavanagh for conciliation on 14 April and transferred to Vice President Walton who attempted conciliation on 17-29 April, 18, 24 and 29 June.

6. On 1 July the managing director filed an application to vary the award so that salary increases above 2.5% could be funded.  The application was listed before a Full Bench for hearing on 14 September. 

7. On 3 August the managing director notified Vice President Walton of pending industrial action by members of the Union at a number of TAFE campuses.  The matter was listed before the Full Bench constituted by the President, Vice President Walton and Justice Staff on 4 August who gave a direction pursuant to s 134(2) of the Act that the industrial action not proceed and the conciliation proceedings before Vice President Walton were suspended. 

8. On 13 August the managing director notified the President of industrial action taken by members of the Union and on 17 and 25 August the matter was before a Full Bench constituted by the President, Vice President Walton and Deputy President Grayson. 

9. On 17 August the Full Bench gave a direction to the executive of the Union that it meet to consider a statement by the Full Bench and its direction of 4 August and that it report back to the Full Bench by 25 August.  The Union reported back and the Full Bench announced that the conciliation proceedings before Vice President Walton would resume.  The matter was again before the Vice President for conciliation on 27 August. 

10. The managing director, having been advised of a 24 hour strike planned for 2 September, notified the Full Bench which reconvened on 1 September.  The matter was initially listed before the President, Vice President Walton and Deputy President Grayson.  Vice President Walton, who had been attempting conciliation over many months, signed a certificate of attempted conciliation under s 135(2) and under the Act this permitted the Commission to proceed to arbitration. 

11. Senior Counsel for the Union then objected to Vice President Walton participating further in the arbitration proceedings and the latter immediately stood aside as required by s 173(1).  Senior Counsel for the Union then took the same objection to the President and Deputy President Grayson because of their participation in the Full Bench hearings on 4 and 14 August.  Both refused to stand aside. 

12. The Full Bench, reconstituted with Deputy President Sams replacing Vice President Walton, heard TAFE’s application for dispute orders against the Union under Pt 2 of Ch 3 of the Act.  Breach of these orders involved the possibility of significant sanctions against the Union.  The Full Bench, so constituted, made dispute orders later that day and published their reasons on 9 September.  The same Full Bench heard the managing director’s application to vary the award on 14, 15 and 17 September and on 15 October they published reasons for varying the award.  Final orders were made on 13 November. 

13. The question before the Court turns on the meaning of s 173 of the Act read with s 134.  Section 173(1) and (2) relevantly provide:

    (1)The member of the Commission who attempted conciliation of an industrial dispute … is not to exercise arbitration powers in relation to the dispute … if a party to the arbitration proceedings objects and requests that a different member of the Commission exercise arbitration powers.

    (2)A member of the Commission is not, for the purposes of this section, taken to have attempted conciliation merely because:

    (a)the member attempted conciliation after having begun to exercise arbitration powers, or

    (b)the member arranged or gave directions for a conference of the parties involved in the industrial dispute or other matter, or their representatives, to be presided over by the member, but the conference did not take place or was not presided over by the member, or

    (c)the member arranged or gave directions for those parties or their representatives to confer among themselves at a conference at which the member was not present.

14. The question is whether the President and Deputy President “attempted conciliation” within the meaning of s 173(1). 

15. The powers of the Commission during conciliation proceedings are set out in s 134(1) and (2) which relevantly provide: 

    “(1)       The Commission, when attempting the conciliation of an industrial dispute, is to do everything that seems to be proper to assist the parties to agree on terms for the resolution of the dispute.

    (2)        During conciliation proceedings, the Commission may make a recommendation or give a direction to the parties to the industrial dispute. …”

16. It is common ground that the Full Bench gave directions on 4 and 17 August which fell within s 134(1) and (2).  If Vice President Walton, sitting alone, had given those directions he would have done so in the course of attempting conciliation.  However he had been engaged in that process for many months and the legal quality of his acts would have been judged in that context. 

17. The question is whether the Full Bench in giving such directions was itself attempting conciliation.  Section 134(2) enables the Commission, to make a recommendation or give a direction in the course of conciliation proceedings, but if a recommendation is given or a direction is made by a Full Bench which is not otherwise engaged in attempting conciliation it does not follow that it is itself attempting conciliation. 

18. I would characterise the legal quality of such a recommendation or direction as one given to assist the conciliation process which did not involve the other members of the Full Bench attempting the conciliation of the dispute. 

19. The task of attempting conciliation was being undertaken by Vice President Walton and while the Full Bench gave directions to assist the parties to achieve conciliation, or with a view to doing that, in my judgment they did not themselves attempt conciliation. 

20. For those short reasons I would propose that the summons be dismissed and with costs. 

21. SPIGELMAN CJ:  I agree. 

22. MACFARLAN JA:  I agree with Handley AJA. 

    **********

AMENDMENTS:

09/02/2010 - placing correct para numbers - Paragraph(s) no changes made

10/02/2010 - The word "Commission" was added to the title of the case on the coversheet. - Paragraph(s) coversheet

LAST UPDATED:
10 February 2010