Patrick v Brighton Bay Pty Ltd [1996] IRCA 650

DECISION NO:650/96 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 1870 of 1996 B E T W E E N: Robyn PATRICK Applicant A N D BRIGHTON BAY PTY LTD Respondent REASONS FOR DECISION 6 DECEMBER 1996 PARKINSON JR This is a decision in relation to an application for enforcement of an agreement to comply with the terms of an Award made by Commissioner Foggo of the Australian Industrial Relations Commission ('the Commission') on 4 March, 1996, the order being issued on 24 May, 1996. The Award was made upon a consent arbitration conducted pursuant to Section 17OEC(1) of the Workplace Relations Act 1988. The respondent filed a defence in relation to the s170ECB application and on 26 August, 1996 by way of a Notice of Motion sought orders and a declaration that the orders made by Commissioner Foggo on 24 May, 1996 were without power and that such orders be set aside. The application made pursuant to s170ECB(1) was heard on 15 November, 1996 together with the notice of motion of the respondent. These are my reasons for decision.

On 9 February, 1996 the parties elected pursuant to s170EB(2) of the Act to have the matter of the alleged unlawful termination of the applicant's employment dealt with by consent arbitration by the Commission. The parties acknowledged that the mutual consent of the parties constituted an agreement between the parties: (a) to submit this matter to the process of consent arbitration by the Commission; (b) to comply with any requirement of the Commission for the purpose of the arbitration; (c) to comply with any award made by the Commission on the arbitration; and (d) if that award is taken on appeal to a Full Bench of the Commission to comply with the award as confirmed, varied or substituted on appeal. The Award made by the Commissioner on 24 May, 1996 (Print N1958) is as follows: " I hereby award as a result of Consent Arbitration, that the respondent Brighton Bay Pty Limited t/a Gestetner Computer Products pay Robyn Patrick the following: First, the company is to provide to Mrs Patrick a separation certificate which is required by law in any case, also a statement of service and a reference. Second, as final payment of the termination the company is to pay seven weks based on a salary of $36,500.00. Third, it is also to pay the agreed amount that the company has in fact itself put forward, the accrued annual leave of 11.6 days. It is my preference that the parties settle this matter within 14 days but, indeed, 30 days is permissible but I believe that under the circumstances it would be better to have these matters resolved as soon as possible. " No appeal was filed by the respondent against the Award made by the Commissioner upon the consent arbitration. Section 170ECA and Regulation 30DAB of the Act provide the grounds upon which an appeal may be lodged against a decision made upon Consent Arbitration. The grounds for such appeal are that the Commission was in error in deciding under subsection 170EC(4) of the Act to make the Award.