Zuzek and the AWU-FIME Amalgamated Union Building Construction and Joinery Branch Victorian Sub-Branch v Dagles Trading Pty Ltd

[1995] IRCA 430

CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - application by an employee for a remedy - application struck out because of applicant’s non appearance - refusal of JUDICIAL REGISTRAR to reinstate application - review of JUDICIAL REGISTRAR - order of JUDICIAL REGISTRAR set aside.

Industrial Relations Act 1988 ss 118A, 170EA

Re SECWA Print L8158, 23 December 1994, Polites SDP
Presland v Sievwright The White Glove Mover VI 1996R of 1994, Gray J, 29 May 1995, unreported
Christine Klempel and The Textile Clothing & Footwear Union of Australia v Nolan Baner Pty Ltd VI 1721R of 1995, Marshall J, 28 August 1995, unreported

No. VI 2386R of 1995

Zuzek and The AWU-FIME Amalgamated Union Building Construction and Joinery Branch Victorian Sub-Branch v Dagles Trading Pty Ltd

Marshall J
Melbourne
31 August 1995

IN THE INDUSTRIAL RELATIONS COURT  )      No. VI 2386R of 1995

)
OF AUSTRALIA  )  
  )
VICTORIA DISTRICT REGISTRY               )  

BETWEEN:  Zuzek

First applicant

The AWU-FIME Amalgamated Union
  Building Construction and Joinery Branch
  Victorian Sub-Branch

Second applicant

AND:  
  Dagles Trading Pty Ltd

Respondent

JUDGE:     Marshall J

PLACE:     Melbourne

DATE:               31 August 1995

ORDER

THE COURT ORDERS THAT:

1.The order of Judicial Registrar Ryan made on 18 July 1995 refusing to reinstate the matter is set aside.

2.The application is reinstated.

3.The application is to be heard by a Judicial Registrar on a date to be fixed.

4.The application be listed for directions on Tuesday, 5 September 1995 at 10.15 am, and in the event that it is not possible to hear the matter on that day, the Registry will advise the parties.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT  )      

)
OF AUSTRALIA  )  
  )  No. VI 2386R of 1995
VICTORIA DISTRICT REGISTRY               )  

BETWEEN:  Zuzek

First applicant

The AWU-FIME Amalgamated Union
  Building Construction and Joinery Branch
  Victorian Sub-Branch

Second applicant

AND:  Dagles Trading Pty Ltd

Respondent

JUDGE:     Marshall J

PLACE:     Melbourne

DATE:      31 August  1995

EX TEMPORE REASONS FOR JUDGMENT

On 7 April 1995 the second named applicant filed in the Registry an application pursuant to s170EA of the Industrial Relations Act 1988 (“the Act”) for a remedy in respect to the termination of the employment of the first-named applicant by the respondent. On 2 May 1995, the matter was referred to the Australian Industrial Relations Commission (“the Commission”) for conciliation. On 29 May 1995, Commissioner Larkin certified that the Commission had been unable to settle the matter by conciliation.

On 4 July 1995, a directions hearing occurred in the matter before Judicial Registrar Ryan and there was no appearance for either applicant.  Mr Shell, who appeared for the respondent applied to have the matter struck out.  The Judicial Registrar struck the matter out, reserving to the applicants the right to seek to have it reinstated.  On 18 July 1995, Mr Sutton appeared for the applicants and applied to have the matter reinstated.

Mr Sutton explained to the Judicial Registrar (and has given evidence before the Court today) that he was unable to attend the directions hearing on 4 July 1995 as he was ill and was unable to find a replacement to appear at short notice.

The transcript before the Judicial Registrar was before me on the review by agreement of the parties.

Mr Sutton explained to the Judicial Registrar that he could not find anyone else who could appear in the matter.  He was asked the following question by the Judicial Registrar:-

“Was there anybody else in the office other than the receptionist?”

He answered:

“Nobody I believe that would have been able to handle it for me.”

In my view the striking out of the matter, in the circumstances, and the failure to reinstate it was too harsh.

It does happen that people develop sickness at short notice, particularly during the Melbourne winter. It also does happen (especially in current times of the proliferation of enterprise bargaining negotiations) that union advocates are spread thinly over numerous responsibilities. A union, and in turn its members, should not be punished if an official or employee is not prepared to send someone to Court who is not, in the judgment of the union official or employee concerned, competent to appear in Court. It is not uncommon in applications under s118A of the Act to find one union seeking exclusive representation rights over a class of employees to denigrate another which has members in that class. In fact, in the proceedings which led to the decision of His Honour Senior Deputy President Polites in Re SECWA Print L8158, 23 December 1994, an organisation of employees was sought to be ridiculed by an employer who supported representation of the relevant class of employee by another organisation, because the first organisation had sent an office secretary to appear at a Commission hearing for a consent award variation in the extraordinary absence of any other available union official or employee.

I believe that an injustice has resulted from the dismissal of this matter and the failure to reinstate it.  It is my view that when a party does not appear at the first directions hearing, the Judicial Registrar should make an order that the Registry make urgent enquires of the absent party’s representatives as to the reason for non-attendance and advise such representatives that failure to appear at the next directions hearing may have adverse consequences for their client or the interests they represent.  I do not accept that no prejudice arises to the first-named applicant.  He has been prevented from having his application  heard on the merits by the decision subject to the review.

I am fortified in the views I have expressed above by the similar approach taken by Gray J in Presland v Sievwright The White Glove Mover VI 1996R of 1994, 29 May 1995, as yet unreported.  See also my recent decision in Klempel v Nolan Baner Pty Ltd VI 1721R of 1995, 28 August 1995, as yet unreported.

Mr Katz for the respondent sought costs against the second-named applicant.  This submission was based on the proposition that the union was not a true party.  I reject that submission.  As referred to in the earlier part of this decision, the second-named applicant actually lodged the application in its own corporate name on behalf of its member.

I therefore order as follows:

1.The order of Judicial Registrar Ryan made on 18 July 1995 refusing to reinstate the matter is set aside.

2.The application is reinstated.

3.The application is to be heard by a Judicial Registrar on a date to be fixed.

4.The application be listed for directions on Tuesday, 5 September 1995 at 10.15 am, and in the event that it is not possible to hear the matter on that day, the Registry will advise the parties.

I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment herein of his Honour Justice Marshall.

Associate:

Date:  31 August 1995

Advocate for the Applicants:                 Mr G Sutton

Solicitor for the Respondent:                  Mr G Katz

Date of hearing:   31 August 1995

Date of judgment:   31 August 1995