Industrial Relations Commission of New South Wales in Court Session CITATION : Glenn Skinner & Others v BHP Steel (AIS) Pty Ltd [2002] NSWIRComm 5 revised - 25/01/2002 APPLICANT/RESPONDENT ON THE MOTION Glenn Skinner and others PARTIES : RESPONDENT/APPLICANT ON THE MOTION BHP Steel (AIS) Pty Ltd FILE NUMBER: 3743 of 2001 CORAM: Peterson J CATCHWORDS : Unfair contract - interlocutory motion - stay of proceedings - subject matter of substantive proceedings similar to that in proceedings before Australian Industrial Relations Commission - both matters listed for conciliation - desirability of ensuring avoidance of waste of time and expense - public interest - proceedings stayed and dates vacated pending outcome of AIRC proceedings - parties have liberty to apply by motion for the reinstatement of these proceedings - costs reserved Industrial Relations Act 1996 LEGISLATION CITED : Workplace Relations Act 1996 (Cth) Coal Industry Act 1946 (NSW) CASES CITED : The Environmental Group Limited and another v Crowdace and another (7 August 1988, matter 1468/98) Burgess and others v Mt Thorley Operations Pty Limited (No. 2) [1999] 100 IR 260 HEARING DATES: 01/24/2002 DATE OF JUDGMENT: 01/25/2002 APPLICANT/RESPONDENT ON THE MOTION: Ms J Gray AGENT: Construction, Forestry, Mining and Energy Union (New South Wales Branch) SYDNEY LEGAL REPRESENTATIVES: RESPONDENT/APPLICANT ON THE MOTION: Mr Mark J Steele of Counsel SOLICITORS: Blake Dawson Waldron Lawyers SYDNEY JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: PETERSON J DATE: 25 JANUARY 2002 Matter No IRC 3743 OF 2001 GLENN SKINNER AND OTHERS v BHP STEEL (AIS) PTY LTD Application under s.106 of the Industrial Relations Act 1996 INTERLOCUTORY JUDGMENT 1 This matter is in Walton J's list for conciliation on the 6 February 2002. It has been dealt with by me as Duty Judge as a result of the respondent having filed on 17 January 2002, a motion in the proceedings seeking to vacate the proceedings on the 6 February and for an order temporarily staying the proceedings. The motion has been dealt with quickly because of the timing of forthcoming conciliation conferences in two tribunals, as these reasons will make clear. 2 This interlocutory judgment concerns a motion filed by the respondent, BHP Steel (AIS) Pty Ltd, in proceedings initiated under s.106 of the Industrial Relations Act (1996) "the Act". The applicants are 94 employees of BHP who work at the Tower Colliery. By their application they seek orders to, in effect, declare unfair and to remedy their contracts of employment in the matter of production bonus payments. In essence, the applicants seek the creation of a contractual obligation upon BHP to pay them production bonus payments according to the terms of an unregistered agreement between the parties which was discontinued by BHP in November 1999 and replaced by a lower level of payments, apparently not by agreement. The s.106 proceedings were commenced on 5 June 2001. The applicants are represented by the Construction, Forestry, Mining and Energy Union ("the CFMEU'). 3 So much of the proceedings are unexceptional. However, the difficulty rises from the juxtaposition of this matter with proceedings in the Australian Industrial Relations Commission ("AIRC"). After the alteration of the production bonus payment system in November 1999, industrial action was taken by workers at the Tower Colliery on 2 December 1999 which led to the AIRC making orders to the effect that the action cease (s127 of the Workplace Relations Act 1996 (Cth) - "the WR Act"). On 16 December 1999 the union notified an industrial dispute to the AIRC in relation to bonus payments for its members employed at the Tower Colliery. That matter was listed before Boulton J on 10 January 2000 by way of conciliation, but did not settle. 4 During 2000, Mr Skinner made a statutory demand on BHP for the payment of amounts alleged to be owing for production bonuses on the basis of the unregistered agreements referred to above. A summons was filed by BHP in the Supreme Court of NSW seeking to have that demand set aside. Mr Skinner then withdrew his demand and was ordered to pay BHP's costs of the summons. 5 Following the commencement of these s106 proceedings on 5 June 2001, BHP filed and served its reply on the 17 July 2001 alleging, inter alia, that this Commission was without jurisdiction. 6 On the 2 October 2001 these proceedings were listed before Walton J for directions. I note that his Honour was informed of the pending listing of the matter in the AIRC and adjourned this matter to 30 October 2001. 7 On 8 and 12 October 2001 the AIRC proceedings were listed before Vice President McIntyre. Conciliation was attempted and directions were made for a program to deal with the ongoing dispute in relation to production bonus payments. 8 On 19 October 2001 BHP filed an application in the AIRC proceedings for an award regulating production bonus payments in the Tower Colliery for the period since November 1999. This apparently seeks to fix the bonus payments on the lower, post- November 1999, levels. 9 In the AIRC proceedings on 30 October 2001 the CFMEU filed submissions in support of an order pursuant to s.111(1)(g) of the WR Act that the AIRC dismiss or refrain from determining the industrial dispute in relation to production bonuses at the Tower Colliery. Those submissions included the following: The effect of the award being sought by the company is to replace retrospectively the Tower Colliery Bonus Agreement with its Survival Agreement Bonus provisions as a matter of law and to simultaneously deprive its employees who are applicants in the section 106 application from a remedy on equity principles in the NSW Commission. 10 Also on 30 October Walton J. at a directions hearing provisionally fixed 6 February 2002 as a date for conciliation of the matter with a further directions hearing on 4 December 2001 at which his Honour said he would "finally determine, in the light of the course adopted by the parties, in other words, having regard to the submissions and materials they then put, as to whether the conciliation should go ahead at that time". On 4 December the provisional listing of the conciliation was confirmed for 6 February 2002 but the parties were reserved liberty to apply to vacate that date in the event of further developments in the AIRC proceedings. 11 On 21 December 2001 the AIRC proceedings were again listed before Marsh SDP and, with the agreement of the Union, the dispute was set down for conciliation before Commissioner Bacon on 31 January and 1 February 2002. The matter has also been listed on 4 February 2002, subject to the outcome of the conciliation, to determine whether the Union's application for an order that the AIRC refrain from determining the dispute be heard as a threshold issue. As I understand it, the substantive matter has been referred to a Full Bench of the AIRC as a special case. 12 BHP's submissions are advanced on four bases. The first is that the legislative approach, both at Federal and State level, is that disputes concerning terms and conditions of employment in the coal industry in New South Wales ought be dealt with by the AIRC. The abolition of the Coal Industry Tribunal and the conferral of jurisdiction upon the AIRC in 1994 together with the provisions of s.54C(2) of the Coal Industry Act 1946 (NSW) support this view. Section 54C(2) gives primacy to a federal award having application in the coal industry over an inconsistent award or order of a (NSW) State tribunal. Reference was also made to the general primacy afforded to the AIRC's dealing with industrial disputes and its power to restrain a state industrial authority from dealing with a matter that is the subject of a proceeding before the Commission (s.152(1) of the WR Act). 13 Secondly, it was submitted that the determination of the AIRC proceedings by the making of an award as sought by BHP will foreclose, in effect, any order being made in the s.106 proceedings (s.152(1) of the WR Act and s.54(C)(2) of the Coal Industry Act 1946 (NSW)). 14 Thirdly, the argument was that the public interest strongly supports grant of the stay sought. The Commission is to have regard to the public interest (see s.146 of the Act). It is contrary to the public interest to have a duplication of proceedings and/or to require hearing and determination of essentially the same issues in different tribunals. 15 In this context reference was made to the judgment of Santow J in proceedings entitled The Environmental Group Limited and another v Crowdace and another (7 August 1988, matter 1468/98) where His Honour was required to rule upon a motion seeking a temporary stay of proceedings in the Supreme Court pending the determination of proceedings under s.106 in this Commission. 16 The judgment of Santow J involved the application of the general power residing in the Supreme Court to stay its proceedings, particularly in circumstances where proceedings are pending in another court and it is desirable that those proceedings should proceed to their conclusion first. It was not concerned with considerations such as those advanced here, to the effect that the legislatures have expressed their preference in favour of the AIRC in coal industry matters or inconsistency of laws considerations. As to the similarity of the factual issues arising in the two proceedings, Santow J. said: Further, the Defendants have submitted, in my opinion correctly, that there is a substantial overlap of factual issues in the two sets of proceedings and that the Court should strive against permitting duplication of proceedings which involve similar issues. Thus the IRC proceedings will inevitably involve issues of fact which will be substantially the same issues of fact in the Supreme Court proceedings; that there will be accordingly, a substantial waste of time and resources if both sets of proceedings are allowed to continue; and that in the absence of a stay of proceedings there is the prospect of an unseemly contest between the Supreme Court of New South Wales and the Industrial Relation Commission rushing to determine similar issues of fact. Certainly there is the risk of conflicting judgments so far as their factual determinations are concerned unless precluded by issue estoppel in favour of the first court's decision. (my emphasis) 17 Ultimately His Honour concluded the matter this way: On balance, I consider that the requirements of justice require an exercise of discretion in favour of a stay of the Plaintiff's Supreme Court proceedings and that the Defendants have satisfied the onus upon them in that regard. The factor which weighs heaviest in that result is the potential impact of the IRC proceedings on the Supreme Court proceedings. The contentions of the Defendants, if upheld in the Industrial Relations Commission, will, it is true, not resolve all the issues between the parties - but neither would the Supreme Court proceedings if heard first. However the IRC proceedings have the potential to result in avoidance or variation of two of the agreements the subject of the Supreme Court proceedings, namely the Sale Agreement and Licence Agreement, with consequential fundamental effect on those latter proceedings. Furthermore the IRC proceedings to deal with the Service Agreement; the Defendants contend that the three agreements represent an overall arrangement between the parties. Whether that is ultimately upheld or not, it is undeniable that there is substantial overlap in the factual issues to be determined. If the IRC proceedings are heard first, it will not impact adversely upon the capacity of the Supreme Court to deal with the issues still remaining. Indeed it will then be clear whether the three agreements are or are not avoided or varied. 18 I also mention that the parties referred me to the judgment of Marks J in Burgess and others v Mt Thorley Operations Pty Limited No. 2 (1999) 100 IR 260 where His Honour dismissed a motion seeking that the summons for relief, filed in those proceedings under s.106, be struck out for reasons which essentially rejected inconsistency of law issues raised in support of the motion. 19 Subsequently, Mt Thorley Operations Pty Limited commenced proceedings in the Federal Court seeking declaratory relief to the effect that the orders sought in the s.106 proceedings would, if made, be inconsistent with the terms of a current certified agreement, having legal effect by operation of the WR Act. If that were so, it was argued, then because of the inconsistency, any orders made under s.106 would be invalid. That application was determined by Moore J on 23 February 2001 in matter [2001] FCA 117, in the course of whose reasons this was said: "In addition, it is desirable that the question of inconsistency, if it remains an issue in this Court, be determined at a time when the State award or State law which is said to give rise to the inconsistency has crystallised by orders having been made by the State Commission …" 20 The applicants oppose the vacation of the proceedings in this Commission on the 6 February and have expressed their keenness to retain them. The approach they take is consistent with that which was adopted in the Mt Thorley proceedings. CONCLUSIONS: 21 I consider that the respondent's motion should be acceded to. I have come to that conclusion adopting an approach more akin to that of Santow J as opposed to the reasoning adopted, in the circumstances of the Mt. Thorley cases, by Marks J and Moore J respectively. This is a different case. Essentially, the court is here asked by the motion not to grant some form of final relief but rather to stay proceedings pending the outcome of other proceedings. While the two proceedings, here and in the AIRC, seek different forms of relief, namely orders affecting contractual terms here and an award in settlement of an industrial dispute in the AIRC, the unavoidable fact is that the subject matter of both forms of order would be the same. Were the applicants successful here they would achieve an entitlement to hold production bonuses at a level consistent with that operative pre-November 1999. If BHP were successful in its pursuit of an award in the AIRC, it would achieve an obligation to pay production bonuses at a lower level. Looked at another way, the issues in the s.106 matter, as BHP's Reply filed therein makes clear in its alternative position, will involve not only whether production bonuses should be ordered to be payable but, if so, at what level. These are the issues in the AIRC matter. At least prima facie, those issues would be determinable in both tribunals on not dissimilar principles. Both remedies are discretionary and it would seem a long bow to draw that what might not be achieved in the AIRC could be won in s.106 proceedings where fairness is the ultimate touchstone. I consider there is an effective identicality of subject matter if not form. 22 Further, the consequence of success in the conciliation proceedings in the AIRC on 31 January and 1 February would be that nothing would be left to consider in the context of the s.106 proceedings. Similarly, if the AIRC conciliation fails there is little if any prospect of a further conciliation, going to the level of disputed production bonuses, being effective. 23 In these circumstances, there is an obvious public interest in ensuring the avoidance, by the parties and the tribunals, of the waste of time, effort and expense involved in requiring the simultaneous pursuit of the same fundamental questions in the two tribunals. The "unseemly contest" of which Santow J spoke ought not be permitted to arise here. 24 In these circumstances, I consider that the first and second orders sought by the motion namely the stay of these proceedings pending the outcome of the relevant proceedings in the AIRC and vacating the conciliation conference for the 6 February 2002 ought be made. However, I would also order that the parties have liberty to apply by motion for the reinstatement of these proceedings as they may be advised. I order accordingly. I reserve the question of costs. 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