JUDGE -V- DISKOROS [1997] IRCA 90

DECISION NO:90/97 CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - ENFORCEMENT OF AWARD PURSUANT TO AGREEMENT FOR CONSENT ARBITRATION - PROCEDURAL REQUIREMENTS - EVIDENCE OF AGREEMENT - SERVICE OF APPLICATION - FORM OF AWARD - DEBT - METHODS OF ENFORCEMENT - EXECUTION - FORM OF WRIT Workplace Relations Act, 1996, ss 42 47 144 150 170 EB EC ECB JEA 178 484 Industrial Relations Court Rules Order 1 Rule 8 Order 37 Rule 7 Order 74 Rule 2 and Order 76 Rules 2 3 and 4 Rules of the Australian Industrial Relations Commission Rule 3 Form R31 Crowley v Union Bank (1903) 29 VLR 385 O'Neil v Hart [1905] VLR 259 RACQUEL ANNE JUDGE -V- KARL DISKOROS and KAREEM DISKOROS No. NI 2084 of 1996 CORAM: LINKENBAGH JR PLACE: CANBERRA (HEARD IN SYDNEY) DATE: 25 MARCH 1997 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NI 2084 of 1996 RACQUEL ANNE JUDGE Applicant KARL DISKOROS and KAREEM DISKOROS Respondent Coram: Judicial Registrar Linkenbagh Place: Canberra (Heard in Sydney) Date: 25 March 1997 MINUTES OF ORDERS THE COURT ORDERS THAT the application be dismissed Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NI 2084 of 1996 RACQUEL ANNE JUDGE Applicant KARL DISKOROS and KAREEM DISKOROS Respondent Coram: Judicial Registrar Linkenbagh Place: Canberra (Heard in Sydney) Date: 25 March 1997 REASONS FOR JUDGMENT This is an application under Section 170ECB(1) of the Workplace Relations Act, 1996 (the Act) filed in the Court on 27 September 1996 by the New South Wales Independent Education Union on behalf of the applicant. The section reads: The Court may, on application by a party to a consent arbitration, take such action as the Court considers necessary to enforce the agreement of the parties to comply with the terms of an award made in a consent arbitration of the matter. The applicant in paragraph 13 of her application asks the Court to enforce an award to pay her money, and in paragraph 15 says that no money has been paid to her under the award, and that $6982.98 is owing. Order 76 of the Industrial Relations Court Rules (the Court Rules) sets out the procedure in relation to applications under Section 170ECB. Rule 2 (1) (a) & (b) provides: 2. (1) An application must be: (a)in accordance with Form 132; and (b)accompanied by a copy of each of the following documents: (i) the relevant application for relief lodged with the Commission under section 170EA of the Act in respect of termination of employment; (ii) the notice of employer's appearance filed in the Commission in respect of the application for relief; (iii) the notice of election, under section 170EB of the Act, to have the matter dealt with by consent arbitration; (iv) the award made by the Commission on that arbitration. The application to the Court is in the correct form and was accompanied by documents described in Rule 2 (i) (b) (i) (iii) & (iv). No document as described in Rule 2 (1) (ii) was filed. For that reason this application ought not to have proceeded, given the mandatory direction in rule 2. Section 170 EB of the Act provides: 170EB(1) When an application is lodged with the Commission, the Commission must inquire into the matter to which the application relates and try to help the parties to the conciliation to agree on terms for settling the matter. 170EB(2) If the Commission decides that the matter cannot be settled by conciliation, or further conciliation, within a reasonable period, the Commission must: (a) inform the parties to the conciliation that it has so decided; and (b) invite the parties to elect, by notice in writing given to the Commission, either at once or within a period specified by the Commission, to have the matter dealt with by consent arbitration. 170EB(3) At any time during the conciliation of a matter, the parties to the conciliation may elect, by notice in writing given to the Commission, to have the matter to which the conciliation relates dealt with by consent arbitration, and, upon their so doing, the conciliation process ends. Section 170 EC of the Act provides: 170EC(1) An election under subsection 170EB(2) or (3) by the parties to a conciliation to have the matter to which the conciliation relates dealt with by consent arbitration constitutes an agreement between the parties: (a) to submit the matter to the process of consent arbitration; and (b to comply with any requirement of the Commission for the purpose of that arbitration; and (c) to comply with any award made by the Commission on that 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 that appeal . 170EC(2) A consent arbitration of a matter that was the subject of a conciliation process must be conducted by a member of the Commission other than the member of the Commission who attempted to settle the matter by conciliation, (the conciliator) unless the parties electing for the consent arbitration agree to the arbitration being conducted by the conciliator. 170EC(3) The procedures to be followed and the powers to be exercised by the Commission in conducting a consent arbitration are such procedures and such powers, consistent with the terms of the Termination of Employment Convention, as are prescribed. 170EC(4) The Commission may, on completion of a consent arbitration, make an award: (a) that provides for a remedy of the kind able to be granted by the Court under section 170EE; or (b) that provides that there is no entitlement to any such remedy. 170EC(5) The parties to the consent arbitration of a matter are the parties to the conciliation of that matter. 170EC(6) Subject to any right of appeal to a Full Bench of the Commission under section 170ECA, the award of the Commission is final and finding as between the parties. Form R31 in the Schedule to the Rules of the Australian Industrial Relations Commission is entitled "Notice of Election of Consent Arbitration under subsection 170 EB (2) or (3)". The Form R31 in these proceedings has the following features: · It is entitled in the matter of "R Judge v Karl & Kareem Diskoris". · The words "Racquel Judge Karl Diskoros" are handwritten in the space provided for the insertion of 'name/s of party/parties to the matter'. · It is signed by Ms C. Matthews of the Union on behalf of the applicant. · It is signed with an indecipherable signature in the space above the words "name & signature of employer or employer's authorised representative" and the name "Carmen Saidden" is written below those words. There is no evidence that the respondents to the Section 170 EA application to the Commission, Karl Diskoros and Kareem Diskoros, filed any Notice of Appearance in the Commission, or that the Commission dispensed with compliance with the Rules in that regard oursuant to Rule 5 of the Rules of the Commission. Nor did either of them appear personally at the conciliation. Nor is there any evidence that Carmen Saidden was a person having a right to represent the respondent before the Commission, or to whom leave had been granted, pursuant to the provisions of Section 42 or Section 170 JEA of the Act. The Award was made on 28 May 1996 by Commissioner Cargill. The sealed copy filed in the proceedings is entitled in proceedings U21372 of 1996 between "Racquel Judge and Karl and Kareem Diskoris and Picnic Point Pre-School Pty Ltd." It provides: 1. The respondent is ordered to pay the applicant 3 weeks pay in lieu of notice; 2. The respondent is further ordered to pay the applicant 3 weeks pay as compensation for unlawful termination; 3. These payments are to be based upon a fortnightly gross figure of $1163.83 and tax is to be deducted at the appropriate rate; 4. The payments are to be made within 21 days of today's date." There is no order or evidence to explain the addition of Picnic Point Pre-School Pty Ltd as a respondent. Nor is there anything to indicate whether the three respondents are jointly or severally liable under the Award. The applicant's representative forwarded a copy of an "Amended Award and Order," also dated 28 May 1996, to the Court with submissions on 13 March 1997. That copy is signed by the Commissioner but is not sealed with the Seal of the Commission under Section 47 of the Act and Rule 3 of the Rules of the Commission. The document is in the same terms as the sealed copy which is in the Court file except that the amount due in paragraphs 1 and 2 is specified as $1745.74 Order 76 Rule 3 of the Court Rules provides for steps which a respondent must take within 14 days after service of the application in order to answer an application under Section 170 ECB. The Court posted a copy of the application to Karl and Kareem Diskoros on 1 October 1996. On 15 October 1996 Carmen Saidden, who describes herself as "Director", wrote to the Court as follows: "I'm writing this letter for the purpose of defending this claim against the Company as the amount is incorrect. I have just received this letter dated 1-10-95 and wish to extend the time. I did not receive a Notice of EMPLOYER'S Appearance form and I kindly request that one be sent to me ASAP. No other steps were taken by the respondent to answer the application or comply with Order 76 Rule 3. Order 76 Rule 4 provides - (1) If the respondent to an application does not file a statement of defence on or before 14 days after being served with the application: (a) the applicant must file an affidavit of service of the application on the respondent; and (b) a Judge or Judicial Registrar may make orders in chambers, without a hearing on the application, to enforce the award made by the Commission. (2)If the respondent files a statement of defence before the end of that period, the Registrar must, as soon as practicable: (a) set a date and time for a directions hearing in relation to the application; and (b) notify the parties of the date and time. (3)At the directions hearing, the Court must fix the earliest practicable date for the hearing of the application. No Affidavit of Service has been filed pursuant to Order 76 Rule 4 (1) (a). The Court listed the Application for a directions hearing on 18 November 1996 and sent Karl Diskoros and Kareem Diskoros notice of that hearing. That listing was contrary to the procedure contemplated by Order 76 Rule 4. Carmen Saidden telephoned the Court Registry on 12 November 1996 and 14 November 1996. The Respondent did not appear on 18 November 1996. The matter was stood over to 5 February 1997 for further directions. On that day Ms Matthews made submissions on behalf of the applicant and the matter was stood over to 27 February 1997, with a direction for the Court that the Registrar notify the respondent of the next directions hearing. That was done in a letter of 5 February 1997. On 19 February a person describing himself as the husband of Carmen Saidden telephoned the Registry. There was no appearance by or on behalf of the respondent on 27 February 1997. Ms Matthews was invited to bring further evidence, which she declined to do, and to make further submissions. The power of the Court in relation to applications under Section 170 ECB (1) is delegated to the Judicial Registrars by Order 74 Rule 2 (c). That power is discretionary and can only be exercised according to the procedure set out in Order 76 Rule 4, the terms of which are mandatory. As no affidavit of service of the application on any of the respondents, nor any statement of defence, has been filed the Court cannot proceed and this application fails. The defects in non-compliance with the Court Rules are not such as should be cured by the exercise of the power of the Court under Order 1 Rule 8 or any other discretion available to the Court in respect of minor procedural irregularities because they go to the question of proof that a party or parties had notice of the proceedings. The application fails also on substantive grounds. The power of the Court is given by Section 170 ECB (1), and is to enforce the agreement of the parties to comply with the terms of the Award made pursuant to the consent arbitration. An Award is, in the terms of Section 170 EC (6) final and binding "as between the parties" and in the terms of Section 150 is final and conclusive and not open to challenge, appeal or review by a Court. The agreement of the parties is in the words of Section 170 EC (1), which are repeated in the Form R31. In this case, the Form R31 was signed by Carmen Saidden a person with no apparent authority to act for the respondents. There is no evidence that Karl Diskoros entered into an agreement and there is even less evidence that Kareem Diskoros entered into an agreement, as she is not described as a party in the operative part of the Form R31. Further, Picnic Point Pre-School Pty Ltd is named as a respondent on the order of Commissioner Cargill. That is the only reference to that Company in any of the papers before the Court. In particular, it is not mentioned in the Form R31 and is not a party to the agreement. The Court further notes that the surname of the respondents is spelled 'Diskoris' in the Award. There is therefore no agreement at all between the parties named in the Award. The power of the Court given by Section 170 ECB (1) is to "enforce" the agreement. The concept of enforcement of an agreement is a novel one and its meaning is unclear. It is noteworthy that the Form 132 is entitled "Application to enforce a consent arbitration award" which title does not follow the words of the section but reflects the purpose of the provision, that being to force the parties to comply with their obligations under the award which has been made pursuant to the agreement. The power under Section 170 ECB (1) is to "take such action as the Court considers necessary". Those words are very wide. The applicant has not made any submissions as to the kinds of action available to the Court nor has she specified the mode of "enforcement" she seeks. There are no decisions of the Court which are of assistance as to that general issue. It may be that the Court could impose a penalty under Section 178 but quaere whether that action may be taken without a specific application and whether the imposition of a penalty would be a proper exercise of the power of the Court to enforce the agreement. The Court would have the power to make an Order in the same terms as the Award of the Commission if there was evidence that the Award was made pursuant to an agreement which binds the parties to the Award. Courts have however traditionally refused to make Orders which are unenforceable in the ordinary meaning of that word in the context of a judgment of a Court and the Court would have to be satisfied that any Order could be enforced.. Section 484 (1) provides that the remedies available for enforcement of Orders of the Court are those "as are allowed in like cases" to persons in whose favour a judgment of the Supreme Court of the relevant State has been made. Order 37 Rule 7 provides for the adaption of such enforcement procedures and forms. Section 484 (2) provides, in effect, that Section 484 (1) should not limit the operation of any provision of the Workplace Relations Act. The words of Section 170 ECB (1) permit methods of enforcement of Orders other than those available in New South Wales Supreme Court actions. Division 4 of Part VI of the Supreme Court Act (New South Wales), 1970, allows for enforcement by way of a writ against land, attachment of wage or salary, and removal of goods under a writ. Those procedures are the common ways of enforcing Orders of a Court and they require that the amount in respect of which execution is to be levied should be stated on the face of the Order. In Crowley v Union Bank (1903) 29 VLR 385 the Supreme Court of Victoria held that a writ of fieri facias should accord in all respects with the judgment or order it seeks to enforce. That view was affirmed by the same Court in O'Neil v Hart [1905] VLR 259. The Court said at page 266: "Now I think the authorities go this length, at all events, that if a writ of fieri facias does not follow the judgment as it ought to do, but departs from it in any particular - as to parties, for instance - it must show on its face why it departs from the judgment - What is the real reason for the departure. Execution is in the nature of a penal operation. A writ of execution warrants the seizure of the property of a person, and it must be shown to that person on the face of that writ that there is proper authority for what is being done." Section 144 of the Act provides that the Commission should frame awards so as best to express the decision of the Commission and avoid unnecessary technicalities. Nevertheless, the Commission has a duty to express its meaning clearly and unambiguously and to make Awards which are capable of enforcement by the Court. The Award in this case is expressed in terms of "weeks pay" based on a "fortnightly gross figure of $1163.83". The gross amount is calculable and was calculated by the Commissioner in the amended Award. Both editions of the Award also provide "and tax is to be deducted at the appropriate rate". No means of calculating the tax is provided. Nor does the Award specify what is to be done with the amount deducted for tax. The Court does not act as a collector of revenue and cannot presume as to the rate of taxation which might apply or as to whom the tax is to be paid. The submission for the applicant that "taxation is determined by law and is therefore certain" is incorrect in this case as there is no evidence as to the rate of taxation which is "appropriate". A writ authorises execution to satisfy a judgment in a money amount. There is no evidence of service of the Award or of the making of any demand for payment nor is there any evidence of the calculation of the amount of $6982.98 claimed in the application for enforcement. That amount is in excess of the amount calculated by the Commissioner in the amended Award. A writ must follow the Order and any Order of the Court inb this case which would be capable of enforcement would involve some alteration to the terminology of the Award before a valid writ could be issued in this case. The power of this Court does not extend to altering the terms of the Award, which is final and binding as between the parties by reason of Sections 170 EC(6) and 150 and the net amount due to the applicant is not calculable on the face of the Award. The Court therefore could not make any Order capable of enforcement by a writ. Nor could a garnishment order be issued, or Bankruptcy proceedings commenced, for the same reasons. The Court orders that the application be dismissed I certify that this and the preceding 6 pages are a true copy of my Reasons for Judgment Judicial Registrar Linkenbagh Date: 25 March 1997 Representative of the Applicant: Ms Carol Matthews New South Wales Independent Education Union The Respondent did not appear and was not represented Dates of hearing: 18 November 1996 and 5 and 27 February 1997