INDUSTRIAL LAW - Challenge to decision of Australian Industrial Relations Commission - Validity of interim paid rates award - Award held invalid - Application for stay of prerogative writs. Industrial Relations Act 1988, COMALCO ALUMINIUM (BELL BAY) LIMITED v. 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 and THE AUSTRALIAN WORKERS UNION -FEDERATION OF INDUSTRIAL, MANUFACTURING AND ENGINEERING EMPLOYEES AMALGAMATED UNION; AUTOMOTIVE, FOOD, METALS & ENGINEERING UNION & COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING & ALLIED SERVICES UNION No. VI. 1213 OF 1995 CORAM: WILCOX CJ, GRAY J and NORTH J PLACE: MELBOURNE DATE: 5 OCTOBER 1995 IN THE INDUSTRIAL RELATIONS COURT) OF AUSTRALIA ) No. VI.95/1213 VICTORIA 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 & ENGINEERING UNION & COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING & ALLIED SERVICES UNION Second Respondents CORAM: WILCOX CJ, GRAY & NORTH JJ PLACE: MELBOURNE DATE: 5 OCTOBER 1995 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The Notice of Motion filed on 28 December 1995 be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules. IN THE INDUSTRIAL RELATIONS COURT) OF AUSTRALIA ) No. VI.95/1213 VICTORIA 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 & ENGINEERING UNION & COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING & ALLIED SERVICES UNION Second Respondents CORAM: WILCOX CJ, GRAY & NORTH JJ PLACE: MELBOURNE DATE: 5 OCTOBER 1995 EXTEMPORE REASONS FOR JUDGMENT WILCOX CJ: This is an application for a stay of orders made by a Full Court, consisting of Keely J, Moore J and myself, on 27 September 1995. The application is made by the second respondents to the proceeding considered by the Full Court, namely, the three registered employee organisations who are concerned to maintain the validity and perpetuation of the interim award made by the Full Bench of the Australian Industrial Relations Commission. In considering the application, it seems to me that the Court must start from the premise that the decision of the Full Court is correct. In saying that I acknowledge immediately that counsel have indicated that the decision will be challenged in the High Court of Australia and have outlined the grounds. It is clear that a number of substantial questions will arise and it is not possible to make any forecast about the ultimate outcome of the proceeding. However, both common sense and the authorities indicate that, in a situation such as this, a court should start with the premise that the judgement under challenge correctly states the law. The authorities also indicate that the grant of a stay is to be regarded as an exceptional order. It is sufficient for me to refer to what was said by Brennan J in Jennings Construction Limited v Burgundy Royale Investments Pty Limited, (1986) 161 CLR 681 and by Dawson J in The Commissioner of Taxation of the Commonwealth of Australia v The Myer Emporium Limited (1986) 160 CLR 220. In Burgundy Royale, Brennan J said at 684: "A stay to preserve the subject matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted." It seems to me that the question we have to consider really depends on practical matters. It is important, in my view, that the 12 employees of the present respondent, Comalco Aluminium Bell Bay Limited, who did not agree to enter into individual contracts with the company, but rather preferred to remain bound by the award, should not become pawns in a battle between the company and the relevant unions. If there was any question of those employees being disadvantaged because of a failure to grant a stay, that would be a factor which would influence my approach to the application. However, Dr Jessup, on behalf of Comalco, has assured us that those employees, and indeed other employees at the smelter, will not be disadvantaged pending the ultimate outcome of the litigation, if no stay is granted. I take it from this that the wages which those employees will receive will not be less than if the interim award continues in effect. This being so, the question really comes down to whether or not it is desirable or otherwise for steps to be taken to have the matter go back to the Full Bench of the Industrial Relations Commission at an early date. If a stay is refused, then it seems to me that the probability is that the Commission will be asked to deal with the matter expeditiously. If there is a need for an interim award to control the situation pending the ultimate disposal of the litigation, then it is clear to my mind that the Commission has power to make an interim award pursuant to s.111 of the Industrial Relations Act 1988. Indeed, that much was said in the judgments of the Full Court. If, on the other hand, it was thought that, for some reason, the Commission should not or would not deal with the matter at an early date, there is perhaps a greater argument in favour of the granting of a stay. I have no doubt that the sensible course is for this matter to be considered by the Commission at the earliest possible date, in order that the Commission can consider whether it is necessary to protect the employees at the site by an appropriate interim award that avoids the error discerned by the Full Court, namely, reliance upon Part VIC of the Act. I think the Court should refuse a stay and that it would be desirable for the Commission, if it is able to do so, to deal with any application for an interim award which might be made as expeditiously as possible. I would refuse the application. NORTH J: I agree with the outcome and reasons of the learned Chief Justice and have nothing to add. WILCOX CJ: The order of the Court therefore will be that the notice of motion filed on 28 September 1995 is dismissed. I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment of the Court. Associate: Dated: 5 October 1995 APPEARANCES Counsel for the Applicant: Dr C Jessup QC and M McDonald Solicitors for the Applicant: Freehill Hollingdale & Page Counsel for the 2nd Respondents: R Merkel QC and K Bell Solicitors for the Respondent: McClellands Dates of hearing: 5 October 1995 IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) No. VI 1213 of 1995 ) VICTORIA DISTRICT REGISTRY ) On Remittal from the High Court of Australia B E T W E E N : 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: Wilcox CJ, Gray & North JJ PLACE: Melbourne DATE: 5th October 1995 EX TEMPORE REASONS FOR JUDGMENT GRAY J. I agree with the order proposed by the learned Chief Justice. I have reached no conclusion, tentative or otherwise, on the correctness of the judgment of the Full Court which is sought to be impugned. I have not had adequate time to give that judgment the consideration which would be required to form such a conclusion. I act on the basis that its correctness will be challenged in the High Court of Australia in one or more proceedings. My decision to refuse a stay is based on the principles laid down in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] (1986) 161 C.L.R. 681 and Federal Commissioner of Taxation v Myer Emporium Ltd [No 1] (1986) 160 C.L.R. 220, and on the absence of any sound practical reason for a stay. I am not persuaded that the Australian Industrial Relations Commission cannot make an appropriate interim award, at an early date, seeking to accomplish what it sought to accomplish by means of the award which has been quashed by the judgment of the Full Court. Accordingly, I agree that the application for a stay must be dismissed. I certify that this and the preceding one (1) page are a true copy of the reasons for judgment of his Honour Justice Gray Associate: Date: 5 October 1995