Industrial Relations Commission of New South Wales in Court Session CITATION : Wykoff Investments Pty Ltd T/as Putt Putt West Ryde v SDA, New South Wales [2003] NSWIRComm 315 APPELLANT Wykoff Investments Pty Ltd T/as Putt Putt West Ryde PARTIES : RESPONDENT The Shop, Distributive and Allied Employees Association, New South Wales for Jim Moran FILE NUMBER: IRC 2308 of 2003 CORAM: Wright J President; Walton J Vice-President; Boland J Appeal - Application for leave to appeal - Appeal from decision of Chief Industrial Magistrate - Award interpretation - Construction of award provisions - Terms of award require reference to industries and callings of industrial committee - Exclusion provision - Findings of fact by Chief Industrial Magistrate - Leave to appeal refused - Appeal dismissed. CATCHWORDS : Award - Award interpretation - Construction of award provisions - Appeal - Application for leave to appeal - Appeal from decision of Chief Industrial Magistrate - Terms of award require reference to industries and callings of industrial committee - Exclusion provision - Findings of fact by Chief Industrial Magistrate - Leave to appeal refused - Appeal dismissed. HEARING DATES: 09/17/2003 EXTEMPORE JUDGMENT DATE : 09/17/2003 APPELLANT Mr S R Coleman of counsel Solicitors: Ei Legal Pty Ltd (Mr B Thompson) LEGAL REPRESENTATIVES: RESPONDENT Mr A G Rogers of counsel The Shop, Distributive and Allied Employees Association, New South Wales (Mr R Tonkli) JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President BOLAND J Wednesday 17 September 2003 Matter No IRC 2308 of 2003 WYKOFF INVESTMENTS PTY LIMITED TRADING AS PUTT PUTT WEST RYDE v THE SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES' ASSOCIATION NEW SOUTH WALES ON BEHALF OF JIM MORAN Application by Wykoff Investments Pty Limited trading as Putt Putt West Ryde for leave to appeal and appeal against a decision of the Chief Industrial Magistrate given on 14 April 2003 in Matter No CIM 156657/02 JUDGMENT OF THE COURT (Extempore) [2003] NSWIRComm 315 1 This case involved consideration of the construction of an award, the Theatrical Employees Recreation and Leisure Industry (State) Award 2000, the coverage of which (because of the provisions of the relevant award) depends upon consideration of the terms of the industries and callings of the applicable industrial committee, namely, the Theatrical Employees (State) Industrial Committee, which are set out at (2000) 319 NSWIG 406, 425. References in this decision, therefore, to exclusions are references to exclusions in that instrument. 2 In our view leave to appeal should be refused in this matter as follows:- 1. We consider that leave should be refused as to any challenge to the findings of fact at first instance, having regard to the conduct of the appellant's case before the CIM. 2. On any construction of the relevant exclusions provision there is no basis for construing the provision in the light of its ambiguous terms by the insertion of the word "solely". This was properly conceded by counsel for the appellant. Further, and in these circumstances, no issue arises in the appeal which would warrant the grant of leave to appeal. 3 We note, however, that the relevant exclusions provision requires urgent attention. We therefore direct that a copy of this Decision and of the relevant papers in the appeal be provided to the Industrial Registrar with a request that appropriate action be taken in the matter. 4 The orders in the appeal are therefore as follows: - 1. Leave to appeal refused. 2. Appeal dismissed. [Counsel for the respondent sought the costs of the appeal, raised the question of interest and requested the Commission to grant leave to file terms, if necessary, in relation to the precise amount of interest to be paid by the appellant. The Court then made the following further orders after hearing from counsel for the appellant] 5. We make the usual order as to costs, namely that the appellant pay the respondent's costs of the appeal in an amount as agreed or, in default of agreement, as assessed. 6. We grant liberty to apply at short notice in relation to the question of the stay, should there be any difficulty in the parties agreeing on the payment of moneys, including interest, to the relevant SDA member, namely, Mr Jim Moran. 7. Upon the payment of such monies on an agreed basis, the stay order will be dissolved. ________________________________ 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.