Industrial Relations Commission of New South Wales in Court Session CITATION : Two BZ Foods Pty Ltd v Saleh [2001] NSWIRComm 238 APPELLANT: Two BZ Foods Pty Ltd PARTIES : RESPONDENT: Ahmed Saleh FILE NUMBER: IRC 2082 of 2001 CORAM: Wright J President; Walton J Vice-President; Boland J CATCHWORDS : Appeal - Application for leave to appeal from decision of Industrial Magistrate - Whether respondent covered by Shop Employees (State) Award - Whether Magistrate's decision creates uncertainty about the operation of the Shop Employees (State) Award and the Caterers Employees (State) Award - Magistrate's findings of fact open to her - No error of principle - Interpretation of awards - Difficulties associated with principal purpose test - Leave to appeal refused - Appeal dismissed CASES CITED : Kingmill Australia Pty Ltd t/as Thrifty Car Rental v Federated Clerks' Union of Australia, New South Wales Branch [2001] NSWIRComm 141 HEARING DATES: 09/17/2001 EXTEMPORE JUDGMENT DATE : 09/17/2001 APPELLANT: Mr A Duc Restaurant and Catering Industry Association of New South Wales LEGAL REPRESENTATIVES: RESPONDENT: Mr B Smith Shop, Distributive & Allied Employees' Association, New South Wales JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President BOLAND J Monday, 17 September 2001 Matter No IRC 2082 of 2001 TWO BZ FOODS PTY LTD v AHMED SALEH Application for leave to appeal and appeal against a decision of Industrial Magistrate O'Shane given on 28 February 2001 in Matter No CIM 40338 of 2000 JUDGMENT OF THE COURT (Extempore) [2001] NSWIRComm 238 1 The appellant seeks leave to appeal and, if leave is granted, appeals from the decision of Ms P O'Shane, Industrial Magistrate, given on 28 February 2001. 2 The first two grounds for leave to appeal are as follows: 1. The Magistrate erred in fact and law in deciding that the respondent was covered by the Shop Employees (State) Award. 2. The decision creates uncertainty about the operation of the Shop Employees (State) Award and the Caterers Employees (State) Award. 3 Having regard to the evidence at first instance, we consider that her Worship's findings of fact were reasonably open to her. In the result her Worship's finding that the Shop Employees (State) Award applied to the employment of the respondent demonstrated no error warranting the grant of leave to appeal. 4 As to the ground of the appeal concerning the operation of the Caterers Employees (State) Award, we consider that there was no case put by the appellant at first instance or before us as would properly ground this contention. We note that the appellant placed considerable reliance upon the principal purpose test. These proceedings illustrate some of the difficulties associated with that test. This matter was one which should have been determined upon the proper construction of the Shop Employees (State) Award on the evidence at first instance: Kingmill Australia Pty Ltd t/as Thrifty Car Rental v Federated Clerks' Union of Australia, New South Wales Branch [2001] NSWIRComm 141 at [70]. 5 We find no error in the application of principle by her Worship in this respect. We make the following orders: 1. Leave to appeal refused. 2. The appeal is dismissed. [The parties were heard as to whether any other orders should be made] 6 The Full Bench makes the following additional order as to the stay. 3. The stay granted on 4 April 2001 is lifted on the following basis: (a) the Registrar shall forthwith pay the moneys paid into court by the appellant to the respondent Mr Ahmed Saleh and shall do so no later than by 24 September 2001; (b) the court notes the undertaking now given by the appellant to pay interest on such moneys, which were the subject of the undertaking given on 4 April 2001, within fourteen days of today's date; (c) the court grants liberty to apply as to the issue of interest provided such liberty to apply is exercised no later than 4 pm on 8 October 2001. ________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.