FEDERAL COURT OF AUSTRALIA Finance Sector Union of Australia v Australia and New Zealand Banking Group Ltd [2005] FCA 62 PRACTICE AND PROCEDURE – adjournment of trial – application before the Australian Industrial Relations Commission to vary certified agreement retrospectively - relevance Workplace Relations Act 1996 (Cth) ss 111(1)(q), 170MD(6) Finance Sector Union of Australia v Commonwealth Bank of Australia (2004) 205 ALR 582 referred to Meggit Overseas Ltd v Grdovic (1998) 43 NSWLR 527 cited R v Whiteway; Ex parte Stephenson [1961] VR 168 cited Warramunda Village Inc v Pryde (2002) 116 FCR 58 applied FINANCE SECTOR UNION OF AUSTRALIA v AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD V831 of 2003 FINKELSTEIN J 9 FEBRUARY 2005 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 831 of 2003 BETWEEN: FINANCE SECTOR UNION OF AUSTRALIA Applicant AND: AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD Respondent JUDGE: FINKELSTEIN J DATE: 9 FEBRUARY 2005 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 In this proceeding the Union seeks the imposition of penalties and other relief under ss 178 and 179A of the Workplace Relations Act 1996 (Cth) alleging that ANZ has breached cl 19 of the Banking Services – ANZ Group Award 1998 and cl 4.2.1 of the ANZ/FSU Agreement 1998. In summary, the Union's case is that ANZ breached the award and certified agreement by requiring certain employees to work more than 152 hours over 19 days per four week cycle and in each case did not pay those employees the overtime payments to which they are entitled. 2 The proceeding was commenced on 12 September 2003 and is now ready for trial; the trial has been fixed to begin on 7 March 2005. Now, however, ANZ seeks to have the trial date vacated. ANZ has applied to the Australian Industrial Relations Commission under s 170MD(6) to vary cl 4.2.1 which is the provision upon which the Union's claim depends and wishes to have the matter dealt with first. It says that if its application to the Commission is successful the Union's case will fail. This is because ANZ seeks to rely upon the Commission's claimed power in an appropriate case to effect a variation which will take away accrued rights. To date the Commission's power to make such an order has not been questioned. At this point I have no view whether or not the power exists, and will assume that it does. 3 ANZ's adjournment application has caused me considerable concern. Putting to one side the lateness of the application, there is authority for the view that it is inappropriate to adjourn a case in order to give a party the opportunity of taking advantage of a potential change in the law: R v Whiteway; Ex parte Stephenson [1961] VR 168, 171; Meggit Overseas Ltd v Grdovic (1998) 43 NSWLR 527, 532-534. In Warramunda Village Inc v Pryde (2002) 116 FCR 58, 74 I said that it may be appropriate to apply those authorities by analogy to a situation where the adjournment is sought to enable a party to apply for a retrospective variation of an award. In Finance Sector Union of Australia v Commonwealth Bank of Australia (2004) 205 ALR 582 these authorities were applied where one party sought a stay to bring an application to vary an award. If this be correct there is no reason why the principle should not apply where a party wishes to put off a case to seek the variation of a certified agreement. On this view ANZ's application should simply be dismissed. 4 In Warramunda Village Inc v Pryde (2002) 116 FCR 58, 74 I also said, however, that an application for a retrospective variation of an award, provided it has some prospects of success, should in some circumstances be regarded as an exception to the rule that the court should not adjourn a case. One circumstance was where a consent award might be varied retrospectively because it contains a provision which does not express the mutual concurrent intention of the parties. In that circumstance a court could defer to the Commission because it might be unjust if the court were to determine the rights of the parties based upon an instrument which does not reflect the parties' actual intentions. 5 This is precisely the basis of ANZ's adjournment application. It has tendered a statement by a former employee who was responsible for negotiating the certified agreement with the Union. The statement refers to discussions which took place between herself and the Union's representatives concerning the intended effect of cl 4.2.1. According to the former employee it was agreed between herself and the Union's representatives that the clause would operate so that no overtime payments are to be made for any additional hours worked and that these hours would only carry single time rates. If the Commission accepts her evidence it is possible that the certified agreement will be varied or rectified so as to accord with their oral agreement. 6 In passing it is worth mentioning that the Commission may only vary the certified agreement if the ANZ shows that there is either ambiguity or uncertainty in the relevant provision. The Commission's power is confined to removing that ambiguity or uncertainty. In this connection it is worth looking at cl 4.2.1. It provides: "A full-time staff member will work no more than 19 days per 4 week cycle. It is acknowledged that circumstances will arise to meet individual staff needs and business needs for some flexibility outside this configuration. In these circumstances changes will occur by mutual agreement. … In circumstances where a staff member is required to work on their day off they will be paid for the day worked at the staff member's hourly rate and at the same time have their day off paid out at the staff member's normal hourly rate." ANZ contends that the second sentence of this clause, in particular the phrase "for some flexibility outside this configuration" is ambiguous. I am prepared to accept for the purposes of this application that the phrase is ambiguous although, having given the matter some thought, I doubt whether the assumption is correct. I also doubt whether the clause is uncertain. If that be correct, the Commission has no jurisdiction to make a variation order. On the other hand, the Commission does have power under s 111(1)(q) of the Workplace Relations Act to rectify the agreement so it accords with the parties' actual intention. I assume that as an alternative remedy such relief will be sought from the Commission. 7 ANZ has informed me that the Commission has agreed to hear its application on 23 to 25 February 2005 and is likely to deliver its reasons shortly thereafter. This does not mean that the case will be promptly resolved. I have been told, without dissent, that the losing party is likely to appeal to the Full Bench and may even take the case further, if grounds are available. 8 There are other points which can be deployed against ANZ. First, regardless of the outcome of its application before the Commission, it is still possible that this proceeding will go ahead. For example, if the Commission makes an order which takes away accrued rights, the Union says that it will press ahead to argue that the Commission has no jurisdiction to do that. For its part, ANZ says that if it fails before the Commission it nevertheless has grounds to defend the present claim. This suggests that there may be little utility in deferring the hearing. 9 Second, on any view, ANZ should have made its application to the Commission much earlier. The reason for the late application is that counsel who noticed the point was only recently retained. That may be so, but it is hardly an explanation upon which I should act. 10 Third, a major consequence of vacating the trial date is that the costs incurred by the Union in getting ready for trial (which is likely to be a considerable sum) could be wasted. This follows from the fact that the Workplace Relations Act prevents me from imposing a costs penalty on ANZ even if I were to accede to its request. It is this potential prejudice more than anything else which has caused me the most concern. I can, however, get around this problem. 11 Having looked at the case ANZ wishes to put to the Commission, and taking into account the fact that the Commission is willing to dispose of the case at short notice, I think that it proper to vacate the trial date to allow the Commission to hear the application. However, I will only vacate the trial date on condition that ANZ undertakes to pay (1) the Union's costs thrown away in consequence of my order and (2) the Union's costs incurred on and from the date on which ANZ filed its defence (28 November 2003), if the Union discontinues this case following any measure of success by ANZ in its application to the Commission. Those costs should be taxed and paid on an indemnity basis. If ANZ refuses to give those undertakings, its adjournment application will be dismissed. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate: Dated: 9 February 2005 Counsel for the Applicant: Mr C Dowling Solicitor for the Applicant: Ryan Carlisle Thomas Counsel for the Respondent: Mr H Dixon SC Mr M McDonald Solicitor for the Respondent: Freehills Date of Hearing: 4 February 2005 Date of Judgment: 9 February 2005