Public Transport Corporation v Eames & Ors, and, & Public Transport Corporation v Boulton
[1995] IRCA 722
•22 Dec 1995
This copy has been electronically compressed to single spacing and smaller font size to reduce transmission costs - page numbering will therefore differ from the original file copy.
DECISION NO: 722/95
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
No VI 95/6073
BETWEEN:
PUBLIC TRANSPORT CORPORATION
Applicant
AND
BRENDAN EAMES, a Commissioner of the Australian Industrial Relations Commission
First Respondent
THE HONOURABLE KEITH HANCOCK, a Senior Deputy President of the Australian Industrial Relations Commission;
THE HONOURABLE JENNIFER ACTON, a Deputy President of the Australian Industrial Relations Commission; and
MICHAEL GAY, a Commissioner of the Australian Industrial Relations Commission
Second Respondents
AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION
Third Respondent
AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION
Fourth Respondent
AUSTRALIAN RAILWAY PROFESSIONAL OFFICERS ASSOCIATION
Fifth Respondent
ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS, AUSTRALIA
Sixth Respondent
COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
Seventh Respondent
and AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
Eighth Respondent
____________________
No VI 95/ 6074
B E T W E E N :
PUBLIC TRANSPORT CORPORATION
Applicant
AND
THE HONOURABLE JUSTICE ALAN BOULTON, THE HONOURABLE DEPUTY PRESIDENT IAN WATSON and COMMISSIONER MICHAEL GAY, members of the Australian Industrial Relations Commission
First Respondents
AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION;
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING & KINDRED INDUSTRIES UNION; and
COMMUNICATIONS, ELECTRICAL, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
Second Respondents
JUDGES: Gray, Marshall, North JJ
PLACE: Melbourne
DATE: 22 December 1995
EX TEMPORE REASONS FOR JUDGMENT
NORTH J:
There are two proceedings before the Court. In both, the Public Transport Commission (“PTC”) seeks a stay of awards of the Australian Industrial Relations Commission (“the Commission”). A description of each proceeding and the way it has come to this Court is contained in my judgment handed down on 19 December 1995 in these proceedings. I will refer to VI95/6073 as the classification matter and VI95/6074 as the apprentices matter.
On 19 December 1995, I determined that the stay applications, which are presently before this Court, could not be heard by a single judge. As a result, on 20 December 1995, a notice of motion was filed by the PTC in each proceeding to bring stay applications before a Full Court. I now turn to those applications.
The proper approach to such applications was considered by the Full Court in Re Printing and Kindred Industries Union; Ex parte Nationwide News Pty Ltd (t/as Cumberland Newspaper Group) and Others (1994) 122 ALR 303, at 314-18. The Full Court held that, in remitted matters, this Court will generally follow the approach the High Court has established in like cases. In part, this flows from the fact that this Court is exercising the jurisdiction of the High Court. The practice of the High Court is to grant stays of orders of the Commission only in exceptional cases. The applicant needs to make out a strong case for a stay; the power is used cautiously and sparingly: see especially, at 315.
One rationale for such an approach is important in the present case. The Full Court, at 315, relied on a passage in the judgment of Brennan J, as he then was, in Re Griffin and Others; Ex parte Professional Radio and Electronics Institute of Australia (1988) 167 CLR 37 at 42 as follows:
“A stay of a Commissioner's decision is exceptional. .... There are sound reasons for this rule. Decisions of the Commission are made in a climate of industrial relations and of economic conditions which presents a multitude of considerations which the Commission must evaluate in deciding where the merits lie. This Court is concerned solely with the legality of the exercise or purported exercise of the Commission's powers and not with the merits of the decision whose legality is challenged. Exceptional circumstances need to be shown to warrant the making of an order by this Court, before it determines the legality of an impugned decision, which affects the merits of a problem in industrial relations.”
In exercising the power to grant a stay, it is common to address the twin factors of the strength of the applicant's case and the balance of convenience, although the two may overlap: see PKIU, at 316. In the end, the matter is for the discretion of the Court. It must determine whether to intervene or not.
With this approach in mind, I consider the apprentices matter first. The evidence concerning the balance of convenience is contained in an affidavit sworn by John Ronald Barry on 11 December 1995 on behalf of the PTC. He asserts a potential difficulty in recovering moneys paid if no stay is granted. His assertion is based on the fact that many of the apprentices are young and mobile. His belief is that the apprentices would not retain the amounts paid. He says that if the amounts were not recovered there would be a large number of proceedings for recovery.
This material does not make a strong case for a stay. It asserts possible difficulty in recovery without any evidence of the financial circumstances of the individuals. It asks the Court to assume that most of the apprentices would not repay. This amounts to an assertion that the apprentices, or a large number of them, would act disreputably. Such an assumption should not be made. My expectation is that most of the apprentices will act reputably by repaying any amounts found to be invalidly paid.
The PTC can enhance its prospects by sending to each apprentice, with the amount due, a letter explaining that the payment is under challenge and will have to be repaid if the challenge succeeds. The union respondents have told the Court that they will advise their members to make arrangements for the chance that the moneys will have to be repaid.
The case is quite different from those personal injury cases in which stays on payments of large awards of damages are granted, pending appeal, to avoid the defendant being denied the fruits of its appeal, if successful. Quite apart from the lack of appropriate evidence in this case, the challenge to the Commission's jurisdiction is made by the PTC to test the limits of the constitutional powers of the Commission. The substantial subject matter of the challenge is not the amount of termination payments payable under the award. Even if the PTC failed to recover some of the termination payments, it would not in a real sense be denied the fruits of the challenge.
The PTC offered an undertaking to pay the termination payments with interest at 10 per cent if it failed in its challenge. Such an undertaking may often meet the competing interests in a commercial dispute. It does not adequately meet the apprentices’ interests in this case because it makes no provision for the likelihood that the apprentices need the payments now, rather than at the end of the proceedings.
In these circumstances the applicant has not, in my view, made out a case for a stay in the apprentices matter.
I now deal with the application for a stay in the classification matter.
Evidence concerning the balance of convenience was put before me on 12 December 1995. When I gave judgment on 19 December, I fixed the applications for hearing on 8 February 1996. On 12 December 1995, the union respondents argued that the evidence adduced by the PTC concerning the balance of convenience in the classification matter was inadequate. Voluminous material has been filed by the PTC since 19 December concerning the need for a hearing in the vacation, and in respect of bans clause proceedings pending in the Commission. No further material has been filed concerning the inconvenience to the PTC arising out of a failure to stay the awards made in the classification matter. In the light of the criticisms made by the union respondents on 12 December 1995, the fixing of the applications for hearing for 8 February 1996, and the filing of other material by the PTC since, I can infer that no better material is available to the PTC to put to the Court concerning the balance of convenience.
The material is inadequate to demonstrate a strong case of inconvenience to the PTC for the following reasons:
It takes 6 months for employees to qualify for reclassification under the awards. The evidence does not disclose how many employees have been acting in higher duties, or for how long. This material is necessary to define the size and urgency of the problem to the PTC.
Further the PTC can control how many employees it allows to reach the six month mark. It can control how many people it places on higher duties. It is therefore largely in control of the factors on which the award operates.
Dr Jessup QC, who appeared with Mr McDonald for the PTC, argued that it was industrially impractical to reclassify employees now, and further reclassify them later if the PTC succeeds. He submitted that employees reclassified upwards would not easily accept further classification downwards. There is no evidence to support such a conclusion. On the contrary, upward and downward movement appears to be a feature of PTC employment.
In paragraph 7 of the affidavit of James Maxwell Carlisle, sworn on 10 November 1995 for the purposes of the application in the High Court, Mr Carlisle said:
“Traditionally within the PTC employees acting in higher have not been substantively reclassified to the levels appropriate to the positions in which they were acting. As a result, when the required periods of acting came to an end, the acting employees would revert to a position, and to the pay and conditions, appropriate to their substantive classification.”
Making due allowance for the difference in circumstances, it seems clear that upward and downward movement between jobs, and consequently pay rates, is not an unusual feature of PTC employment.
As I suggested during argument, the PTC is able to explain to employees reclassified that the reclassification is made under legal requirement, the legal requirement is under challenge, and, if the challenge succeeds, the reclassification will not stand. Employees who are properly informed will accept such a situation. Again, the union respondents have told the Court that they will assist in such explanation.
The PTC then contended that a re-reclassification may give rise to arguments that the contract of employment was terminated at the initiative of the employer, such as to give rise to proceedings under section 170EA of the Industrial Relations Act 1988. If the circumstances giving rise to the further reclassification derive from the awards of the Commission, and from decisions of this Court about their validity, the possibility of prejudice to the PTC is so remote and small as to account for very little in assessing the balance of convenience.
I also take into account the fact that the overall workforce of the PTC is 10,000 and that the inconvenience asserted relates to 250 employees directly, and a further unspecified number indirectly. This is a fairly small proportion of the workforce.
To some extent it is likely that the degree of inconvenience to the PTC may have been exacerbated by its delay in commencing proceedings. This delay occurred from 24 August 1995, when the Full Bench of the Commission handed down its decision, until 10 November 1995, when the application for an order nisi was filed in the High Court. No explanation for the delay was given. In the period of delay some employees have been acting in higher duties. Their period in higher duties would have been shorter if the PTC had instituted the challenge sooner.
An influential factor is that the original award was made as a result of delay in the implementation of a restructure within the PTC. On 12 December 1995, Dr Jessup explained to me that:
“.... Commissioner Eames who made the original award, took the view that too long had passed with this so called temporary state of affairs and that in the interests of the employees themselves, they should be permanently appointed to the classifications which relate to the positions in which they were working on an acting basis.”
To add to the delay by staying the awards would accord too little weight to the factors outlined by Brennan J in Re Griffin, referred to earlier.
The PTC was prepared to give the usual undertaking as to damages. There are two difficulties about this. First, it will be almost impossible to establish what the employment history of each employee would have been if the stay had not been granted. Second, some consequences flowing from granting a stay will be non-monetary and impossible to quantify in money terms. For instance, a person may fail to qualify for a transfer as a result of not being reclassified. The consequence may be an entire change in career prospects.
For those reasons, I would refuse a stay in the classification matter. The orders which I would make in each case would be that the motion, notice of which was filed on 20 December 1995 on behalf of the applicant, be dismissed.
GRAY J: I agree with North J for the reasons he has given that the notices of motion should be dismissed. I agree with the orders proposed by him in each matter. I have nothing further to add to his Honour's reasons.
MARSHALL J: I agree with the orders proposed by North J and with the reasons that his Honour has given. I have nothing to add.
I certify that this and the preceding nine (9) pages are a true copy of the reasons for judgment of the Court.
Associate:
Dated:
No VI 95/6074
Solicitors for the applicant: Victorian Government Solicitor
Counsel for the applicant: Dr C. Jessup QC and Mr M. McDonald
Solicitors for 1st & 2nd respondents: Australian Government Solicitor
Counsel for 1st & 2nd respondents: No appearance
Solicitors for 3rd-7th respondents: Ryan Carlisle Thomas
Counsel for 3rd-7th respondents: Mr H. Borenstein
Solicitors for 8th respondent: Ryan Carlisle Thomas
Counsel for 8th respondent: Mr P. Grano
No VI 95/6074
Solicitors for the applicant: Victorian Government Solicitor
Counsel for the applicant: Dr C. Jessup QC and Mr M. McDonald
Solicitors for 1st respondents: Australian Government Solicitor
Counsel for 1st respondents: No appearance
Solicitors for the 1st & 3rd 2nd respondents: Slater & Gordon
Counsel for the 1st & 3rd 2nd respondents: Mr H. Borenstein
Solicitors for the 2nd 2nd respondents: Ryan Carlisle Thomas
Counsel for the 2nd 2nd respondents: Mr P. Grano
Date of hearing: 21 December 1995
Date of judgment: 22 December 1995
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
No VI 95/6073
BETWEEN:
PUBLIC TRANSPORT CORPORATION
Applicant
AND
BRENDAN EAMES, a Commissioner of the Australian Industrial Relations Commission
First Respondent
THE HONOURABLE KEITH HANCOCK, a Senior Deputy President of the Australian Industrial Relations Commission;
THE HONOURABLE JENNIFER ACTON, a Deputy President of the Australian Industrial Relations Commission; and
MICHAEL GAY, a Commissioner of the Australian Industrial Relations Commission
Second Respondents
AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION
Third Respondent
AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION
Fourth Respondent
AUSTRALIAN RAILWAY PROFESSIONAL OFFICERS ASSOCIATION
Fifth Respondent
ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS, AUSTRALIA
Sixth Respondent
COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
Seventh Respondent
and AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
Eighth Respondent
____________________
No VI 95/6074
B E T W E E N :
PUBLIC TRANSPORT CORPORATION
Applicant
AND
THE HONOURABLE JUSTICE ALAN BOULTON, THE HONOURABLE DEPUTY PRESIDENT IAN WATSON and COMMISSIONER MICHAEL GAY, members of the Australian Industrial Relations Commission
First Respondents
AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION;
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING & KINDRED INDUSTRIES UNION; and
COMMUNICATIONS, ELECTRICAL, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
Second Respondents
ORDER
JUDGES: Gray, Marshall, North JJ
PLACE: Melbourne
DATE: 22 December 1995
THE COURT ORDERS THAT:
In matter number VI 6073 of 1995, the notice of motion filed on 20 December 1995 on behalf of the applicant be dismissed.
In matter number VI 6074 of 1995, the notice of motion filed on 20 December 1995 on behalf of the applicant be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
C A T C H W O R D S
INDUSTRIAL LAW - AWARD - proceeding to set aside award - application to stay operation of award - principles to be applied - employees would be deprived of benefit of award - inconvenience of having to pay apprentice’s redundancy pay and recover it not substantial - inconvenience of reclassification not substantial
Re Griffinand Others; Ex parte Professional Radio and Electronics Institute of Australia (1988) 167 CLR 37
Re Printing and Kindred Industries Union; Ex parte Nationwide News Pty Ltd (t/as Cumberland Newspaper Group) and Others (1994) 122 ALR 303
PUBLIC TRANSPORT CORPORATION -v- EAMES & Ors
No. VI 95/6073
and
PUBLIC TRANSPORT CORPORATION -v- BOULTON & Ors
No. VI 95/6074
Before: Gray, Marshall, North JJ
Place:
+ Melbourne
Date: 22 December 1995
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