Comalco Aluminium (Bell Bay) Ltd v The Hon D O'Connor; Australian Workers Union [1995] IRCA 208

CATCHWORDS INDUSTRIAL LAW (CTH) - awards - application for stay of operation of paid rates award - jurisdiction of Industrial Relations Commmmmission (Cth) - power of Full Bench of Industrial Relations Commission (Cth) to make and maintain a paid rates award - alleged difficulties arising from retrospective operation of paid rates award - balance of convenience Industrial Relations Act 1988 (Cth) ss 150, 170UB, 170UC Re Printing & Kindred Industries Union; ex parte Nationwide News Pty Ltd (1994) 1 IRCR 65 O'Toole v Charles David Pty Ltd (1991) 1 71 CLR 232 COMALCO ALUMINIUM (BELL BAY) LTD v THE HON D O'CONNOR & ORS; AUSTRALIAN WORKERS UNION & ORS VI 95/1213 CORAM: NORTHROP, RYAN & MOORE JJ PLACE: MELBOURNE DATE: 19 MAY 1995

IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) No. VI 1213 of 1995 ) NEW SOUTH WALES DISTRICT REGISTRY) BETWEEN: COMALCO ALUMINIUM (BELL BAY) LIMITED Applicant AND: THE HONOURABLE DEIDRE O'CONNOR, PRESIDENT; THE HONOURABLE JOHN MACBEAN AND THE HONOURABLE COLIN POLITES, SENIOR DEPUTY PRESIDENTS; THE HONOURABLE SIMON WILLIAMS, DEPUTY PRESIDENT AND MR ROBERT MERRIMAN, COMMISSIONER, MEMBERS OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION First Respondents AND: THE AUSTRALIAN WORKERS UNION - FEDERATION OF INDUSTRIAL, MANUFACTURING AND ENGINEERING EMPLOYEES AMALGAMATED UNION; AUTOMOTIVE, FOOD, METALS AND ENGINEERING UNION AND COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION Second Respondents CORAM: Northrop, Ryan and Moore JJ PLACE: Melbourne DATE: 19 May 1995 REASONS FOR JUDGMENT On 15 February 1995 the Court heard an application for an order to stay the operation of an award of the Australian Industrial Relations Commission ("the Commission"). At the conclusion of the hearing the Court indicated it would stay the operation of the award, in part, and would later publish its reasons. These are the reasons. On 22 December 1994 a Full Bench of the Commission made an award entitled the Aluminium Industry (Comalco Bell Bay Companies) Interim Award 1994 ("the Award"). In terms, it operated from 26 May 1994. The 1994 Award gave effect to a decision of a Full Bench of the Commission of 8 December 1994 (Print L7449) dealing with what the Full Bench described in its reasons as two award applications. It is unnecessary to detail all the circumstances leading to the making of those applications and the findings made by the Full Bench. It is only necessary to refer in outline to some of them and the Court draws, in large measure, on the decision of the Full Bench when describing them. Comalco Aluminium (Bell Bay) Limited ("Comalco") operates an aluminium smelter at Bell Bay, Tasmania. Certain Comalco employees were employed under the Aluminium Industry (Comalco Bell Bay Companies) Award 1983 ("the 1983 Award") which was republished and renamed in 1991 ("the Bell Bay Award"). The employee organisations bound by the Bell Bay Award applied to the Commission in 1994 for an interim paid rates award to apply to all employees of Comalco in classifications to which the 1983 Award had applied. The Bell Bay Award applied only to members of these employee organisations and had no application to employees who were not. In its decision of 8 December 1994 the Commission found that the Bell Bay Award was a paid rates award though it also found that payments had been made to employees in excess of the rates it prescribed. "Paid rates award" is defined in s4 of the Industrial Relations Act 1988 ("the Act") and what that comprehends is in issue in these proceedings though it was not necessary for the Court to address that issue in dealing with the application for a stay order. The application for an interim paid rates award was successful and resulted in the 1994 Award. Certain observations of the Full Bench in its reasons for decision are consistent with the Full Bench having proceeded to make that award on the basis that it was obliged to do so by virtue of legislative provisions found in Div3 of PtVIC of the Act which deals generally with paid rates awards. That the Commission may have acted in this way became one of the bases upon which Comalco instituted proceedings in January 1995 in the High Court of Australia seeking writs of prohibition, mandamus and certiori against the members of the Commission constituting the Full Bench. On 20 January 1995 Dawson J ordered that the application for an order nisi for the writs be remitted to this Court. It was in these circumstances that an issue arose in this Court about staying the operation of the 1994 Award until the application for prerogative relief had been decided. The approach to be adopted by this Court in dealing with an application for an order staying the operation of an award of the Commission was discussed at length by a Full Court of this Court in Re Printing and Kindred Industries Union; Ex parte Nationwide News Pty Ltd (1994) 1 IRCR 65. The joint judgment of the Full Court makes plain that this Court should adopt a cautious approach in exercising the power to stay an award, would ordinarily do so only when a strong case is made out that the Commission had exceeded its jurisdiction and that the strength of the case may, in appropriate circumstances, be considered together with the balance of convenience in deciding whether a stay order should issue. In the present case, Comalco's principal submission was that if the Full Bench, when making the 1994 Award, had been exercising the power to maintain a paid rates award found in s170UC, then the provisions of s170UC did not dictate the result decided upon by the Full Bench. Similarly, if the Full Bench had been exercising the power found in s170UB to make a new paid rates award, then the provisions of s170UB did not dictate the result decided upon by the Full Bench. Both submissions constituted, in the opinion of the Court, a case of substance if the Full Bench held the view that it was obliged by the Act, in the circumstances it found to exist, to follow the course it took in making the 1994 Award. The Full Bench's decision contains passages that suggested it held that view. The second respondents' principal answer to these submissions was that s150 of the Act operated on the 1994 Award and limited the basis upon which it might be challenged. However, as Comalco submitted, s150 does not affect the jurisdiction of the High Court arising under s75(v) of the Constitution: see O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 306 per Dawson J and this Court is exercising a jurisdiction of the same character: see Re Printing and Kindred Industries Union, supra, at 77. The stay order Comalco sought would have operated on the 1994 Award in two materially different ways. One concerned its operation from 26 May 1994 being the day from which it was, in terms, to operate. The other was its operation from the date of its making, namely 22 December 1994. During that first period, Comalco had acted on the basis that it was bound to apply the Bell Bay Award only to members of the organisations who were respondents to it. It was otherwise free to employ its workforce upon terms agreed directly with the employees. A significant number of its employees were not members of those organisations. Comalco led evidence of significant difficulties for it that would arise if the terms of the 1994 Award had to be given effect for the period 26 May 1994 to 22 December 1994. Those difficulties were detailed in an affidavit of Mr Michael Parks who was employed as the principal personnel adviser to Comalco. The Court formed the view that those difficulties bore significantly upon the balance of convenience. That consideration, together with the apparent strength of Comalco's case, led the Court to conclude that the operation of the 1994 Award should be stayed pending the determination of these proceedings. However different considerations arose in relation to the operation of the 1994 Award from 22 December 1994. Comalco was then aware of its terms and the reasons why it had been made. It would have then been in a position to take whatever steps it thought appropriate given that its legal obligations under the 1994 Award would endure if the proceedings it then decided to commence in the High Court were not successful. In the opinion of the Court, this consideration altered materially the balance of convenience, and led the Court to limit the period in respect of which the stay order should operate namely 26 May 1994 to 22 December 1994. I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment of the Court. Associate: Date: Counsel for the Applicant: Dr C N Jessup QC and Mr M McDonald Solicitor for the Applicant:Freehill Hollingdale & Page Counsel for the Second Respondents: Mr K Bell Solicitor for the Second Respondents: McClellands Date of hearing: 15 February 1995 Date of judgment: 19 May 1995