The Shop, Distributive and Allied Employees' Association of Western Australia v Samuel Gance (ABN 50 577 312 446) T/A Chemist Warehouse Perth - [2020] WASCA 36

JURISDICTION     :   WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT
CITATION:   THE SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES' ASSOCIATION OF WESTERN AUSTRALIA -v- SAMUEL GANCE (ABN 50 577 312 446) T/A CHEMIST WAREHOUSE PERTH [2020] WASCA 36
CORAM:   BUSS J
HEARD:   3 JANUARY 2020
DELIVERED          :   3 JANUARY 2020
PUBLISHED           :   24 MARCH 2020
FILE NO/S:   IAC 3 of 2019
IAC 4 of 2019

BETWEEN: THE SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES' ASSOCIATION OF WESTERN AUSTRALIA
Appellant
AND
SAMUEL GANCE (ABN 50 577 312 446) T/A CHEMIST WAREHOUSE PERTH
First Respondent
THE PHARMACY GUILD OF WESTERN AUSTRALIA
Second Respondent
THE MINISTER FOR COMMERCE AND INDUSTRIAL RELATIONS
Third Respondent

ON APPEAL FROM:
Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Coram: P E SCOTT CC
S J KENNER SC
T B WALKINGTON C

Citation: 2019 WAIRC 00825
File Number : FBA 2 of 2019 & FBA 3 of 2019

Catchwords:

Industrial law - Appeals from the declaration and orders of the Full Bench of the Industrial Relations Commission - Applications for a stay pending the determination of the appeals - Applicable principles - Special or exceptional circumstances

Legislation:

Industrial Relations (Western Australian Industrial Appeal Court) Regulations 1980 (WA), reg 6
Industrial Relations Act 1979 (WA), s 6, s 7, s 29A, s 46, s 47, s 49, s 87

Result:

Applications for a stay granted

Category: B

Representation:

Counsel:

Appellant	:	Mr D Rafferty
First Respondent	:	Mr N Tindley
Second Respondent	:	Mr T J Dixon & Mr A Drake-Brockman
Third Respondent	:	Ms J M Vincent

Solicitors:

Appellant	:	Self represented
First Respondent	:	FCB Workplace Law
Second Respondent	:	Mapien
Third Respondent	:	State Solicitor's Office

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

Arnhem Land Aboriginal Land Trust v Northern Territory [2007] FCAFC 31; (2007) 157 FCR 255
BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers [2005] WASCA 138
BHP Billiton Iron Ore Pty Ltd v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers' Union of Australia (Western Australian Branch) [2002] WASCA 16; (2002) 112 IR 31
Bunnings Forest Products Pty Ltd v Bullen (1994) 54 FCR 342
Burswood Resort (Management) Ltd v Australian Liquor Hospitality and Miscellaneous Workers' Union (1996) 65 IR 456
Freshwest Corporation Pty Ltd v Transport Workers' Union, Industrial Union of Workers, WA Branch (1991) 71 WAIG 1746
Koushappis v The State of Western Australia [2011] WASCA 245
Smolarek v McMaster [2006] WASCA 216
State School Teachers' Union of Western Australia v Bannon (1997) 77 WAIG 1647
The Shop, Distributive and Allied Employees' Association of Western Australia v Samuel Gance 2019 WAIRC 00098
The Western Australian Carpenters & Joiners, Bricklayers and Stoneworkers Industrial Union of Workers v Terry Glover Pty Ltd (1970) 50 WAIG 704
Western Australian Mint v Australian Liquor Hospitality and Miscellaneous Workers' Union (1999) 87 IR 91

BUSS J:

The appellant in each of these appeals has applied for a stay of:
(a)the declaration and orders made on 13 December 2019 by the Full Bench of the Western Australian Industrial Relations Commission (the Commission) in each of appeal FBA 2 of 2019 and appeal FBA 3 of 2019 (2019 WAIRC 00869); and
(b)any proceedings pursuant to the declaration and orders,
pending this court's hearing and determination of appeal IAC 3 of 2019 and appeal IAC 4 of 2019, or until further order of this court.
The respondents in each of these appeals are Samuel Gance trading as Chemist Warehouse Perth (Chemist Warehouse) as first respondent, The Pharmacy Guild of Western Australia (Pharmacy Guild) as second respondent and The Minister for Commerce and Industrial Relations (the Minister) as third respondent.
Chemist Warehouse and the Pharmacy Guild oppose the appellant's applications for a stay. The Minister supports the applications.

The relevant background

The background to the proceedings between the parties in the Commission and before the Full Bench is as follows.
The appellant and the respondents are in dispute about whether the scope of the Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977 (the Award) covers the retail pharmacy industry.
The Award was made in 1977. At all times cl 3 of the Award has provided:
This award shall apply to all workers employed in any calling or callings herein mentioned in the industry or industries carried on by the Respondents named in Schedule "C" and to all employers employing those workers.
When the Award was made, Schedule "C" – RESPONDENTS included Boans Ltd and Perth United Friendly Society Chemists, which were engaged in the retail pharmacy industry.
In December 1988, Boans Ltd was removed from Schedule "C".
In April 1995, Perth United Friendly Society Chemists was removed from Schedule "C" by an order of the Commission made pursuant to s 47 of the Industrial Relations Act 1979 (WA) (the Act).
Since 1995, there have been no employers named in Schedule "C" engaged in the retail pharmacy industry.
The appellant sought an interpretation of the Award in the Commission pursuant to s 46 of the Act.
Section 46(1) of the Act provides:
At any time while an award is in force under this Act the Commission may, on the application of any employer, organisation, or association bound by the award ‑
(a)declare the true interpretation of the award; and
(b)where that declaration so requires, by order vary any provision of the award for the purpose of remedying any defect therein or of giving fuller effect thereto.
By s 46(3) of the Act, subject to the Act, a declaration made under s 46 is binding on all courts and all persons with respect to the matter the subject of the declaration.
The question formulated for determination in the appellant's interpretation applications was:
Does [the Award], as varied, apply to workers employed in any calling or callings mentioned in the Award in the retail pharmacy industry and to employers employing those workers?
The determination of that question (in particular, the interpretation of cl 3 and Schedule "C" of the Award) involved a consideration and an application of the principles enunciated by Burt J in The Western Australian Carpenters & Joiners, Bricklayers and Stoneworkers Industrial Union of Workers v Terry Glover Pty Ltd[1] and by Franklyn J in Freshwest Corporation Pty Ltd v Transport Workers' Union, Industrial Union of Workers, WA Branch.[2]
[1] The Western Australian Carpenters & Joiners, Bricklayers and Stoneworkers Industrial Union of Workers v Terry Glover Pty Ltd (1970) 50 WAIG 704.
[2] Freshwest Corporation Pty Ltd v Transport Workers' Union, Industrial Union of Workers, WA Branch (1991) 71 WAIG 1746.
On 18 January 2019, Commissioner Emmanuel determined, after a hearing in the Commission, that the answer to the question was 'yes'.
Each of Chemist Warehouse and the Pharmacy Guild appealed against Commissioner Emmanuel's declaration and orders. The appeals were, in essence, in identical terms.
On 28 February 2019, Chief Commissioner Scott, on the application of Chemist Warehouse and the Pharmacy Guild, granted a stay, pursuant to s 49(11) of the Act, of Commissioner Emmanuel's declaration and orders, pending the hearing and determination of the appeals before the Full Bench or until further order.
On 21 November 2019, a majority of the Full Bench (Chief Commissioner Scott and Senior Commissioner Kenner; Commissioner Walkington dissenting) allowed the appeals. The Full Bench made orders in each appeal, as follows:
Now therefore the Full Bench, pursuant to section 49 of the Industrial Relations Act 1979, hereby orders –
1.That the appeals be upheld
2.That the decision at first instance be varied to:
(a)Declare that [the] Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977 does not apply to the retail pharmacy industry.
(b)Order that the Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977 be varied in accordance with the following schedule and that the variations have effect from 6 January 2020.

The grounds of appeal to this court

The appellant relies upon four grounds of appeal in each of the appeals to this court. The grounds are identical.
The issues raised by the grounds of appeal are, in essence, as follows.
First, did the Full Bench err in law in deciding that the Award did not cover employers and employees in the retail pharmacy industry in circumstances where the last‑named employer respondent to the Award in that industry was deleted from the Schedule of Respondents under s 47 of the Act by the Commission on its own motion.
Secondly, did the Full Bench err in law in deciding that the deletion of Perth United Friendlies Society Chemists pursuant to s 47 of the Act varied the scope of the Award so that it no longer applied to employers and employees in the retail pharmacy industry.

The orders made on the appellant's applications for a stay

On 3 January 2020, after hearing the appellant's applications for a stay, I made orders on each of the applications as follows:
(1)No party to this appeal and no person referred to in s 46(3) of the Industrial Relations Act1979 (WA) (the Act) is to exercise any right or power conferred by or arising under or by virtue of the declaration made by the Full Bench in order 2(a) of the Full Bench's orders dated 13 December 2019 until 4.00 pm on the date on which this court delivers judgment in the appeal or further order.
(2)No party to this appeal and no person referred to in s 46(3) of the Act is to be subject to any obligation arising under or by virtue of the declaration made by the Full Bench in order 2(a) of the Full Bench's orders dated 13 December 2019 until 4.00 pm on the date on which this court delivers judgment in the appeal or further order.
(3)The variations to the Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977 made by the Full Bench in order 2(b) of the Full Bench's orders dated 13 December 2019 are not to have effect until 4.00 pm on the date on which this court delivers judgment in the appeal or further order.
(4)Any proceedings (other than the proceedings in this appeal) on any of the Full Bench's orders dated 13 December 2019 are stayed until 4.00 pm on the date on which this court delivers judgment in the appeal or further order.
When making those orders, I indicated that I would give reasons for making them at a later date. These are those reasons.

My reasons for making the orders on the appellant's applications for a stay

In the present case, the Full Bench granted a stay, pursuant to s 49(11) of the Act, in respect of the declaration and orders made by Commissioner Emmanuel.
Section 49(11) of the Act provides:
At any time after an appeal to the Full Bench has been instituted under this section a person who has a sufficient interest may apply to the Commission for an order that the operation of the decision appealed against be stayed, wholly or in part, pending the hearing and the determination of the appeal.
In s 7(1) of the Act, it is stated that in the Act, unless the contrary intention appears:
(a)'decision includes award, order, declaration or finding'; and
(b)'declaration means a declaration made by the Commission under this Act'.
The power of this court to grant a stay is conferred by s 87(3) of the Act and reg 6 of the Industrial Relations (Western Australian Industrial Appeal Court) Regulations 1980 (WA).
Section 87(3) of the Act confers wide and undefined powers upon a member of this court to make orders as to any interlocutory proceeding taken before the hearing of an appeal. Section 87(3) includes power to grant a stay of an order made by the Full Bench. See Burswood Resort (Management) Ltd v Australian Liquor Hospitality and Miscellaneous Workers' Union,[3] Western Australian Mint v Australian Liquor Hospitality and Miscellaneous Workers' Union;[4] BHP Billiton Iron Ore Pty Ltd v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers' Union of Australia (Western Australian Branch).[5] However, s 87(3) does not reproduce the language of s 49(11) of the Act.
[3] Burswood Resort (Management) Ltd v Australian Liquor Hospitality and Miscellaneous Workers' Union (1996) 65 IR 456.
[4] Western Australian Mint v Australian Liquor Hospitality and Miscellaneous Workers' Union (1999) 87 IR 91.
[5] BHP Billiton Iron Ore Pty Ltd v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers' Union of Australia (Western Australian Branch) [2002] WASCA 16; (2002) 112 IR 31.
Section 87(3) confers power to stay a decision and order, and power to stay proceedings. By contrast, reg 6 merely gives a judge of this court power to order a stay of proceedings 'on [a] decision being appealed from'. There is a well-established distinction between the staying of an order and the staying of proceedings under the order. See Burswood Resort (Management) Ltd (458).
It appears to be well-established that the power of this court to grant a stay requires that the applicant for the stay show 'special' or 'exceptional' circumstances. The power should be used sparingly and with caution. Those principles ordinarily require close attention to the strength of the appellant's case on appeal and the balance of convenience. See Burswood Resort(Management) Ltd (458); State School Teachers' Union of Western Australia v Bannon;[6] Western Australian Mint (91); BHP Billiton Iron Ore [3]; BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers. [7]
[6] State School Teachers' Union of Western Australia v Bannon (1997) 77 WAIG 1647, 1648 - 1649.
[7] BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers [2005] WASCA 138 [15] - [20].
It appears doubtful that a declaratory order can be the subject of a stay pending an appeal, in the absence of a statutory power to stay a declaratory order. The rationale appears to be that once a declaration has been made, the legal rights or obligations of the parties which were litigated in the proceedings are, subject to appeal, settled. See Bunnings Forest Products Pty Ltd v Bullen;[8] Smolarek v McMaster;[9] Arnhem Land Aboriginal Land Trust v Northern Territory;[10] Koushappis v The State of Western Australia.[11]
[8] Bunnings Forest Products Pty Ltd v Bullen (1994) 54 FCR 342, 347.
[9] Smolarek v McMaster [2006] WASCA 216 [26] ‑ [27].
[10] Arnhem Land Aboriginal Land Trust v Northern Territory [2007] FCAFC 31; (2007) 157 FCR 255 [5] ‑ [8].
[11] Koushappis v The State of Western Australia [2011] WASCA 245 [18].
However, there is no doubt that, even in the absence of a statutory power to stay a declaratory order, this court has power, in an appropriate case, to grant a stay in respect of rights which have been declared to exist and which are challenged or sought to be impugned in the appeal and, also, to grant a stay in respect of consequential orders which give effect to a declaratory order. See Bunnings Forest Products [347]; Smolarek [26] – [27]; Arnhem Land Aboriginal Land Trust [5] – [8]; Koushappis [18].
The language in s 87(3) of the Act should receive a broad and liberal construction having regard to the objects stated in s 6 of the Act. See Burswood Resort (Management) Ltd (458). It is reasonably arguable that the power conferred on this court by s 87(3) includes a power of the kind that is expressly conferred on the Full Bench under s 49(11) of the Act in relation to 'decisions' (as defined in s 7(1) of the Act) appealed against. However, it is unnecessary to resolve that point. The orders I have made refer to the exercise of rights or powers conferred by or arising under or by virtue of the declaration made by the Full Bench. The orders I have made do not operate or purport to operate as a stay of the Full Bench's declaratory order.
I am of the opinion that, at this stage and without the benefit of final argument by the parties, the appellant appears to have a reasonably strongly arguable case that:
(a)the scope of the Award is to be determined by the industries carried on by the named Respondents to the Award when it was made in 1977, and not by the industries carried on by the named Respondents as they exist from time to time;
(b)the scope of an award under the Act can only be varied in accordance with the specific provisions of the Act that permit an award to be varied;
(c)the specific provisions of the Act which permit an award to be varied were not invoked or relied upon to delete Boans Ltd and Perth United Friendlies Society Chemists, both of which were named Respondents to the Award when it was made in 1977 and both of which carried on business in the retail pharmacy industry at that time;
(d)the Full Bench should have decided that the Award continued to apply to employers and employees in the retail pharmacy industry as it did when the Award was made in 1977, notwithstanding the deletion of Boans Ltd and Perth United Friendlies Society Chemists;
(e)further, the deletion of a named Respondent to an award by the Commission on its own motion pursuant to s 47 of the Act does not affect the scope of an award of the kind under consideration in the present case; and
(f)the variation of the scope of the Award by the removal of Perth United Friendlies Society Chemists required that an application be made in accordance with s 29A of the Act, and no such application was made.
Also, I am of the opinion for the following reasons that, at this stage, the balance of convenience favours the granting of a stay.
The material before this court indicates that the decision of the majority of the Full Bench will be applied in other pending proceedings in the Industrial Magistrates Court before this court hears and determines these appeals. As I have mentioned, by s 46(3) of the Act, subject to the Act, a declaration made under s 46 is binding on all courts and all persons with respect to the matter the subject of the declaration.
In the present case, as I have mentioned, Commissioner Emmanuel's declaration and orders were stayed on 28 February 2019 by Chief Commissioner Scott pending the hearing and determination of the appeals before the Full Bench or until further order. Chief Commissioner Scott held that there were 'special circumstances' which justified the granting of a stay, as follows:
I find that the applicants, now having a declaration that the Award applies to them and their employees, are obliged at law to apply the Award. It is not optional. Whether enforcement action will be taken pending the appeal does not alter their legal obligations.
I find that should the order not be stayed, pending the hearing and determination of the appeals, the applicants will be required to:
1. audit, consider and recalculate the rates of pay of employees for the future, and make any necessary payments of backpay for employees, past and present; and
2.reassess their operating hours, rosters and staffing generally. This may have the effect of changing their opening hours, the number of employees they employ and rearranging those employees’ working hours.
These steps will have significant structural, financial and staffing consequences. If the appeals are successful and the order is quashed, all of this work and change will have been disruptive, unnecessary, wasted and irrecoverable. They will not be able to be restored substantially to their former position.
[I]n the circumstances of a finding that an award applies and has always applied to a business and its employees where the employer had, on advice, believed no award applied, a prudent business operator would take the actions the applicants say are necessary and not await the outcome of an appeal where a stay might prevent likely unnecessary, expensive and irrecoverable consequences, including the recovery of back pay to former employees.
See The Shop, Distributive and Allied Employees' Association of Western Australia v Samuel Gance.[12]
[12] The Shop, Distributive and Allied Employees' Association of Western Australia v Samuel Gance 2019 WAIRC 00098 [47] ‑ [50].

The Full Bench did not publish reasons for decision in the appeals until 21 November 2019 and did not make its declaration and orders until 13 December 2019. The Full Bench, in allowing the appeals from Commissioner Emmanuel's declaration and orders, did not in terms set aside the Commissioner's declaration. Rather, the Full Bench ordered that 'the decision at first instance be varied' to declare that the Award 'does not apply to the retail pharmacy industry' and to order that the Award be varied in accordance with an attached schedule with effect from 6 January 2020.
Although the Full Bench did not in terms set aside Commissioner Emmanuel's declaration, that was, in substance, the effect of the Full Bench's order. In particular, the Full Bench's order that 'the decision at first instance be varied' to declare that the Award 'does not apply to the retail pharmacy industry' operated in effect as a new declaration which superseded the Commissioner's declaration.
Accordingly, the orders I made, after hearing the appellant's applications for a stay, will not have the effect of reinstating Commissioner Emmanuel's declaration and orders, pending the hearing and determination of the appeals to this court.
The orders I made will have the effect of preserving the status quo that existed before Commissioner Emmanuel made her declaration and orders.
The issues in the appeals to this court raise a significant matter of general importance in the context of industrial relations in the retail pharmacy industry.
There is no reason why the appeals cannot be heard and determined promptly. If necessary or desirable, one or more of the parties may apply for expedition.
If the appellant's applications for a stay had been dismissed, employees in the retail pharmacy industry who have been receiving the benefits of the Award may be deprived immediately of those benefits. If that occurs there is a real risk that some of those employees may suffer short term economic disadvantage. If the appeals to this court succeed, inconvenience will have been incurred and financial expenditure in connection with the implementation of the Full Bench's declaration and orders will have been wasted.
At the hearing of the appellant's applications, counsel for the Pharmacy Guild accepted (properly, in my opinion) that apart from matters of inconvenience, the Pharmacy Guild did not assert that it would be prejudiced by the orders I made (appeal ts 39). Similarly, at the hearing, counsel for Chemist Warehouse did not contend that it would be prejudiced by the orders I made.
I was persuaded that the combined force of all of the matters to which I have referred, in considering the strength of the appellant's case and the balance of convenience, constituted 'special' or 'exceptional' circumstances which justified the orders I made.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Western Australian Industrial Appeal Court.
JM
Research Associate to the Honourable Justice Buss
24 MARCH 2020