Industrial Relations Commission of New South Wales in Court Session CITATION: Dimension Data Pty Ltd v National Union of Workers, New South Wales Branch [2005] NSWIRComm 81 APPELLANT Dimension Data Pty Limited PARTIES: RESPONDENT National Union of Workers, New South Wales Branch, on behalf of Arvin Tubungbanua FILE NUMBER(S): IRC1133 of 2005 CORAM: Walton J Vice-President CATCHWORDS: Industrial dispute - appeal against interim dispute orders for reinstatement granted under s136, s137(1)(b) - application for stay of interim orders pending appeal - prospects of success - appeal at least arguable - no adequate reasons for stay - application for leave to appeal and appeal expedited - discussion of undertakings as to damages in context of interim reinstatement orders - findings made in interim application have no effect in substantive proceedings - stay refused - directions LEGISLATION CITED: Industrial Relations Act 1996 Bellambi Bowling Recreation & Sports Club Ltd v Grammel (2001) 107 IR 104 Campbells Cash and Carry Pty Limited v National Union of Workers, New South Wales Branch (2001) 104 IR 400 CASES CITED: National Union of Workers, New South Wales Branch on behalf of Mr Arvin Tubungbanua v Dimension Data Pty Limited [2005] NSWIRComm 57 Re Transport Industry - Waste Collection and Recycling (State) Award (2000) 102 IR 192 HEARING DATES: 03/10/2005 EXTEMPORE JUDGMENT DATE: 03/10/2005 APPELLANT Ms K Nomchong of counsel Solicitor: Mr Rutherford Shanahan Tudhope Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr A Joseph, of counsel Mr Mueller National Union Of Workers, NSW Branch JUDGMENT: 1 INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: WALTON J, Vice-President DATE: 10 March 2005 Matter No IRC 1133 of 2005 DIMENSION DATA PTY LTD v NATIONAL UNION OF WORKERS, NEW SOUTH WALES BRANCH Application for leave to appeal and appeal against a judgment of Justice Backman given on 25 February 2005 in Matter No IRC 423 of 2005. DECISION [2005] NSWIRComm 81 1 On 25 January 2005 the National Union of Workers, New South Wales Branch (the Union) filed a notification of industrial dispute under s 130 of the Industrial Relations Act 1996 ("the Act") against Dimension Data. At that stage the dispute concerned the threatened dismissal of one of Dimension Data's employees, Mr Arvin Tubungbanua. That threat materialised shortly afterwards. 2 This is an appeal by Dimension Data against an interlocutory order for the reinstatement of Mr Tubungbanua. This judgment deals only with Dimension Data's application for a stay of the interlocutory decision, pending determination of its application for leave to appeal and, if leave is granted, of the appeal. 3 Following today's written and oral submissions by Ms Nomchong of counsel on behalf of Dimension Data and oral submissions by Mr Joseph, counsel on behalf of the Union, I have decided that Dimension Data's application for a stay should be refused and provide the following short reasons for my decision. 4 The factual background, the course of these proceedings, and the basis upon which Backman J granted the Union's application for an interim reinstatement order are concisely set out in National Union of Workers, New South Wales Branch on behalf of Mr Arvin Tubungbanua v Dimension Data Pty Limited [2005] NSWIRComm 57 and need not be repeated here. 5 The principles governing stays of decisions appealed against are well-settled: I refer particularly to the decisions in Re Transport Industry - Waste Collection and Recycling (State) Award (2000) 102 IR 192 at [19]; Campbells Cash and Carry Pty Limited v National Union of Workers, New South Wales Branch (2001) 104 IR 400 at 409; the decision of the Full Bench in Broken Hill Chamber of Commerce and CFMEU (NSW Branch) [2002] NSWIRComm 244 at [11]; and Bellambi Bowling Recreation & Sports Club Ltd v Grammel (2001) 107 IR 104. The applicant must show an adequate reason for the stay, and that the balance of convenience (including the competing rights of the parties) favours the stay. In some cases it may be appropriate to consider, on a preliminary basis, the prospects for success on appeal, even if only in the context of considering the balance of convenience. 6 Without making any final finding or determination of the prospects of the appellant's case, I am prepared to decide this application on the basis that Dimension Data's appeal is at least arguable (for example, I refer to its contention that Backman J did not adequately consider factors going to the balance of convenience). However, there are factors which diminish, to some extent, this consideration in favour of the appellant. One such factor is the general and frequently-stated reluctance of this Court and this Commission to allow appeals against interlocutory orders, pending determination of the substantive issues between the parties at first instance. I also note that Dimension Data relies upon its submissions that Backman J misapplied the test of irreparable injury in deciding to grant interim orders. However, her Honour's decision was a discretionary one, and Dimension Data will have to satisfy the requirements of House v King (1936) 55 CLR 499 in order to obtain leave. (I note in this respect that Mr Joseph has raised a question as to the veracity of Dimension Data's submission, given, he submits, that the applications before Backman J were brought under ss 137 and 138 of the Act.) 7 It is not necessary for me to evaluate the merits of Dimension Data's submissions as to the circumstances in which it is appropriate to grant interlocutory reinstatement; the effects of such an order on the Commission's ultimate discretion to grant final relief; or matters of public policy relating to the so-called intermingling of the s130 and s84 applications. These are matters which should be determined in the appeal, should leave be granted. However, on the subject of public policy, I think it is appropriate to record my preliminary observation that the Act has specifically provided for interlocutory relief such as reinstatement to be granted to persons represented by industrial organisations; Dimension Data's submissions as to differential treatment sound in a legislative scheme in which industrial organisations play an important role. Further, the decision at first instance may, in fact, be one which turns upon its own facts and circumstances without offering any general policy issues (although this matter will require further reflection, for example whether consideration should be given to any notion of a right to work in the context of interim applications of this kind). 8 I do not accept that Dimension Data has demonstrated an adequate reason for the exercise of my discretion in its favour, particularly when its application for leave to appeal and appeal can be expedited, as I discuss below. In some stay applications in appeals concerning unfair dismissal proceedings the Commission must consider whether it would be inappropriate to require reinstatement in the light of serious allegations as to an employee's conduct. No such allegations have been made here. Nor has Dimension Data asserted particular significant practical difficulties arising from the reinstatement. Dimension Data's argument boils down to this: although Mr Tubungbanua is performing work in return for pay in the course of this interim reinstatement, the arrangement is not financially efficient for Dimension Data. Existing staff could perform the work, thereby saving the company the cost of an unnecessary employee. 9 Although I note that parties seeking interlocutory relief (such as injunctions) in other jurisdictions are regularly required to give an undertaking as to damages in order to protect the restrained party from irrecoverable loss, I am not aware of the matter having been raised in this jurisdiction in the context of interlocutory reinstatement orders. There is a question as to whether such an undertaking is applicable for interim proceedings which relate to Part 6 of Chapter 2 of the Act. Further, a question arises as to the applicability of this approach in proceedings such as these where applications are brought under ss 137 and 138 of the Act. 10 In any event, Dimension Data's position in the performance of the interlocutory reinstatement order is far removed from irrecoverable loss: although it may be financially more efficient for the company to operate without the benefit of Mr Tubungbanua's services, the fact remains that it is receiving labour for the wages it is paying. Whilst there are some areas of dispute, the evidence before me would tend to suggest that Dimension Data has directed Mr Tubungbanua to perform tasks which do not maximise his capabilities (and which may, on one view, be contrary to the interlocutory orders made by Backman J), and that there is in fact appropriate work available for him to perform, but that the company has elected to use alternative means. It is simply too fine a point to unravel the work Mr Tubungbanua has performed (and will continue to perform) for this temporary period and assess the value of such work to Dimension Data, weighed against the wages paid to him. Further, I do not accept that Dimension Data can rely upon the absence of such an undertaking as going to the balance of convenience in its present application, having failed to raise it before Backman J at first instance. 11 As I have foreshadowed, Dimension Data's application for leave to appeal and appeal will be expedited: it will be heard on the morning of 1 April 2005. In these circumstances, where the interim orders will continue for another three weeks only, and where the appeal will be determined well in advance of the substantive proceedings before Commissioner Cambridge in May, I do not accept that a failure to grant the stay renders the appeal nugatory. 12 Further, none of the findings made by Backman J could affect the case of the appellant in the s 84 proceedings before Cambridge C (or any determination of it), irrespective of whether the findings were heard in joined s84 and s130 proceedings or proceedings in which a single member of the Commission heard both interlocutory and final relief applications. 13 Finally, I do not consider that it is appropriate to call upon the respondent to offer an undertaking as to damages in this context. This will be a matter that will be considered by Backman J tomorrow. 14 For these reasons, the stay sought by Dimension Data is refused. [Discussion with the parties concerning directions.] 15 I direct that the usual directions in Practice Direction No 1 shall apply, save that: 1. The directions applying to Dimension Data shall operate such that the submissions and other materials required under the usual directions shall be filed and served on or before 4pm Monday 21 March 2005; 2. The appeal books in the proceedings shall be filed and served on or before 4pm Monday 21 March 2005; 3. The Union shall file and serve any submissions and other materials required by the usual directions on or before 12 noon Wednesday 30 March 2005. 16 I shall not impose a direction upon Dimension Data to file a written submission in reply. It will be a matter for it, if it wishes to do so, either before 1 April 2005 or on the day of the hearing; or it may choose to make any reply orally during the course of the hearing. The other conditions applying in the usual directions will operate. 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