Industrial Relations Commission of New South Wales in Court Session CITATION: Bevco Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (New South Wales Branch) [2005] NSWIRComm 182 APPLICANT Bevco Pty Limited PARTIES: RESPONDENT Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (NSW Branch) FILE NUMBER(S): IRC 2605 of 2005 CORAM: Staff J Declaration - Application pursuant to s 154 of Act filed whilst s 130 dispute proceedings remained unresolved - Application to exercise powers pursuant to s 175 of Act - Public policy considerations to resolve industrial disputes expeditiously - Discretion exercised - Priority given to industrial dispute proceedings - Application for declaration adjourned CATCHWORDS: Industrial dispute - Application pursuant to s 154 of Act filed whilst s 130 dispute proceedings remained unresolved - Application to exercise powers pursuant to s 175 of Act - Public policy considerations to resolve industrial disputes expeditiously - Discretion exercised - Priority given to industrial dispute proceedings - Application for declaration adjourned LEGISLATION CITED: Industrial Relations Act 1996 CFMEU v Newcrest Mining Ltd [2005] NSIRComm 23 Kellogg (Aust.) Pty. Limited v National Union of Workers, New South Wales Branch [1998] NSWIRComm 528 Newcrest Mining v IRC of New South Wales and CFMEU [2005] NSWCA 85 CASES CITED: Notification under s 130 by the CFMEU of a dispute with Newcrest Mining Ltd [2005] NSWIRComm 77 Unilever Australia Limited v Australian Workers' Union, New South Wales & Anor [2005] NSWIRComm 2 Health and Research Employees' Association of New South Wales v Baptist Community Services NSW and ACT (2002) IR 178 HEARING DATES: 05/27/2005 DATE OF JUDGMENT: 06/01/2005 APPLICANT Solicitor: Mr P Brown Baker & McKenzie LEGAL REPRESENTATIVES: RESPONDENT Mr A Neilson Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (New South Wales Branch) JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Staff J 1 June 2005 Matter No IRC 2605 of 2005 BEVCO PTY LTD v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION (NSW BRANCH) Application under s 154 of the Industrial Relations Act 1996 REASONS FOR INTERLOCUTORY JUDGMENT [2005] NSWIRComm 182 1 The Court has before it for determination an application by Bevco Pty Ltd ("Bevco") for a declaration pursuant to s 154(1) of the Industrial Relations Act 1996 ("the Act"). 2 The application is opposed by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (NSW) Branch) ("the AMWU"). 3 The declaratory order sought is in the following terms: (a) That on its proper construction the Aerated Waters &c. (State) Award applies to the work performed by employees of the Applicant engaged as production and/or stores employees at its Mudgee NSW site. 4 The matter was listed for mention before the Court on 27 May 2005 when, after hearing the parties, I ordered that this matter be adjourned until the completion of proceedings in IRC 6684 of 2004. Those latter proceedings relate to a dispute notified by the AMWU with Bevco regarding, among other things, the applicable award coverage for certain employees engaged at Bevco. 5 Mr P Brown, solicitor, who appeared for the applicant, invited the Court to provide reasons for the order made. Whilst an interlocutory decision of this kind should normally require only very brief reasons, I propose to be slightly more expansive in order to discuss the basis upon which I consider priority should have been given in this case to the dispute proceedings. 6 In doing so, it is necessary to set out the broader industrial history between the respective parties. 7 On 16 November 2004, the AMWU notified, pursuant to s 130 of the Act, the existence of a dispute with Bevco. The question, dispute or difficulty was stated to be as follows: 1 The Applicant has members engaged by the Respondent as employees. 2 The Respondent is a small fruit juice manufacturer located in Mudgee, New South Wales. The Respondent pre-dominantly manufactures fruit juice with a small proportion of production dedicated to still water manufacture. 3 The Respondent employs approximately thirty employees. 4 It has recently sought to have certifed an agreement pursuant to Section 170LK of the Workplace Relations Act. This proposed Agreement was held in abeyance after the Union sought to intervene in the proceedings on behalf of its membership. 5 The Respondent has since indicated that it will offer Australian Workplace Agreements to those employees who choose to accept them. 6 The Applicant has raised concern with the Respondent about the Award under which it currently pays its production employees. The Respondent is not a known member of any federally registered employer organisation. It is not a direct Respondent to any federally registered Award. 7 As such it is bound by an Award of the state of New South Wales. The Respondent currently pays its employees under the terms and conditions of the Aerated Water (State) Award. 8 The Applicant believes that the correct Award to cover the Respondents production employees is the Food Preservers (State) Award. 9 As a result of being paid under the terms of the Aerated Water (State) Award, the employees have suffered financial loss. 10 The Applicant seeks that the Commission exercise its powers pursuant to Section 175 of the Industrial Relations Act ("Act") to determine the correct Award for the purposes of these employees. The Commission is empowered to deal with a small claim application under Section 380 and can issue the appropriate orders under Section 136 of the Act. 8 It can be seen that the dispute had at its core the appropriate award operation for employees at Bevco and what such employees should be paid. It also apparently had other elements associated with the regulation of the employment of persons engaged by Bevco. The notifier sought that the Commission exercise its powers pursuant to s 175 of the Act to determine the core issue. 9 Section 175 of the Act is in the following terms: 175 Powers of interpretation The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument). 10 Notwithstanding that the Commission was seized of the dispute; was able to exercise powers pursuant to s 175; had made directions on 22 February 2005 for the applicant to file its material by 15 March 2005; the respondent to file its material by 8 April 2005 and listed the matter for hearing on 20 June 2005, Bevco sought to file an application pursuant to s 154 seeking a declaration in the same proceedings. This apparently occurred on 9 May 2005 (when Bevco filed in the dispute proceedings an application for directions (sic) claiming declaratory relief). 11 This led to the Commissioner vacating the hearing date fixed for 20 June 2005. Subsequently, the above application was filed after original listing before me in the dispute proceedings on 20 May 2005. I note in passing that Bevco is yet to comply with the directions made by the Commission. 12 It is the point of the vacation and notwithstanding the dictates of s 162(2) (and its particular relevance for dispute proceedings) the dispute remains unresolved for over six months. 13 It does not require a detailed analysis to conclude that the hearing and determination of the s 154 application would introduce substantial further delays and a good deal more than the dispute proceedings. Meanwhile, an industrial dispute remains unresolved. This, in itself would be enough to warrant a later date with s 154 proceedings. If this was all I had intended to say, Mr Brown's curt inquiry would have been met with a short response. 14 However, there are, of course, important public policy considerations that require this Commission to resolve industrial disputes expeditiously. These public policy purposes, insofar as possible, point in favour of having the matters resolved in dispute proceedings and include the following, which were referred to by the Hon J W Shaw QC, Attorney General and Minister for Industrial Relations, in the Second Reading Speech to the Industrial Relations Bill (Hansard, Legislative Council, 23 November 1995): (i) the scheme of the Act which requires that disputes should be given priority in their resolution; (ii) an emphasis on conciliation at first instance; (iii) a single, cost-effective process to deal with all questions of conciliation and arbitration; (iv) an effective system of sanctions for breach of agreements or awards; (v) a coherent, non legislative and workable framework for the resolution of industrial disputes; (vi) the resolution of disputes in a prompt and fair manner with a minimum of legal technicality; (vii) throughout the process, parties are held accountable for their conduct at all stages; (viii) other issues potentially arising. 15 A primary function of the Commission is the conciliation and arbitration of industrial disputes. In CFMEU v Newcrest Mining Ltd [2005] NSWIRComm 23, the Full Bench dismissed a notice of motion seeking a declaration that the Commission had no jurisdiction to deal with a purported dispute notification by the CFMEU in circumstances where the terms of employment of an employee, the subject of the dispute, were regulated under an Australian Workplace Agreement. 16 The Commission found that it had jurisdiction in respect of the notification of dispute. Newcrest subsequently commenced proceedings in the New South Wales Court of Appeal seeking prerogative relief against the Industrial Relations Commission and the CFMEU. 17 Walton J Vice-President, listed the matter for the sole purpose of conducting a conciliation conference on 9 March 2005. Newcrest sought that the proceedings be adjourned until the hearing and determination of the proceedings before the Court of Appeal described by his Honour as an application for a stay of the Commission's proceedings. 18 On balance, his Honour considered that those factors in favour of the Commission refusing the application to adjourn were outweighed by factors in favour of proceeding with the compulsory conference, particularly in the light of the statutory scheme for the resolution of industrial disputes under the Act: Notification under s 130 by the CFMEU of a dispute with Newcrest Mining Ltd [2005] NSWIRComm 77. His Honour set out those factors at [6] as being: 1. These proceedings concern an industrial dispute. The scheme of the Act places particular significance upon the Commission dealing with such matters in conformity with the objects of the Act. 2. Further delay in the Commission carrying out that dispute settlement function would be contrary to the requirements of the Commission acting quickly in such matters (see, for example, s162(2)) and would have the real potential to damage the prospects of that function being effectively carried out. Delay in such matters acts against the prospect of resolution by conciliation which is the primary means of resolving industrial disputes (see s133 of the Act). 3. The consequences for the respondent being required to participate in conciliation proceedings, whilst they are not inconsequential, are of a lesser magnitude than other stages of dispute proceedings before the Commission where binding orders going to substantive rights may be affected. ... 19 Newcrest filed a notice of motion seeking an order that proceedings in the Industrial Relations Commission of New South Wales (those then before Walton J Vice-President) be stayed until determination of the summons which had been filed in the Court of Appeal seeking an order in the nature of prohibition restraining the Industrial Relations Commission of New South Wales from dealing with an industrial dispute. 20 In Newcrest Mining v IRC of New South Wales and CFMEU [2005] NSWCA 85, Bryson JA dismissed the notice of motion. His Honour refers to the decision of Walton J Vice-President in Notification under s 130 by CFMEU of a dispute with Newcrest Mining Limited, which considered the significant public policy issues of why the resolution of industrial disputes are important. 21 His Honour also noted that Walton J had under consideration whether he should issue summonses under s 165(3)(a) of the Act requiring attendance of three named officers of Newcrest at a compulsory conference and also whether to issue a certificate of attempted conciliation under s 135 of the Act. Bryson JA observed at [6]: ... The procedure of conciliation which Walton J has undertaken is certainly not the same as the procedure provided for by the AWA, but material similarities can be seen between the two processes; it does not seem to me to be strikingly unjust that, having agreed to participate in good faith in mediation before an agreed mediator, Newcrest should find itself participating under compulsion in conciliation before the Vice President or before a Commissioner of IRC. Matters might not appear to me in the same way if the business before IRC went further and a certificate of attempted conciliation under s.135 of IR Act were issued, or if there were any later stages after that; but those things have not happened. Compulsion of Newcrest to participate in conciliation proceedings, even though it could well extend to compulsion of named officers to attend, while it clearly is, on the view of Newcrest's rights put forward, a significant departure from Newcrest's rights, does not strike me as overall a marked injustice. 22 In my view, the strength of his Honour's decision is that it is informed by the approach taken by this Commission in dealing with industrial disputes. 23 In my view, the factors in favour of the dispute proceedings being resolved outweigh the limited consideration in respect of s 154. In dispute proceedings it is the responsibility of the Commission to resolve the dispute. I am not convinced that the only issue that is required to be resolved in the dispute proceedings is the interpretation of the Award. 24 The Commission in dispute proceedings is best placed to deal with issues emerging in a dispute. In my view, the common sense approach dictates that all of these matters have to be weighed against what appears to be a relatively minor consideration of the respondent seeking a forensic advantage in having an application for a declaration determined which may not, necessarily, resolve all issues between the parties. 25 Mr Brown relied on a decision of Hungerford J in Kellogg (Aust.) Pty. Limited v National Union of Workers, New South Wales Branch [1998] NSWIRComm 528 to support the approach of Bevco. This matter involved the notification by Kellogg (Aust.) Pty. Limited under s 130 of the Act of a dispute with the National Union of Workers, New South Wales Branch concerning the operation of cl 44 (Introduction of Change) of the Kellogg (Aust.) Pty. Ltd. Botany (NUW) Consent Award 1996. 26 The dispute was conciliated by Maidment J, as required by s 133 of the Act, however, as agreement could not be effected, his Honour issued a certificate of attempted conciliation under s 135 so as to enable the dispute to be arbitrated. The proceedings were reallocated to Hungerford J on an urgency basis for arbitration. 27 His Honour observed at 2: Although the arbitration was before the Commission, moved by Kellogg pursuant to s 136(1)(d) of the Act to "make any other kind of order it is authorised to make" in relation to the dispute, it was clear that the relief sought arose in the dispute proceedings but was in the nature of a declaration as to the right of Kellogg to implement its proposals having in mind the provisions of the Award. By reason of s 154 of the Act, relief of that nature is exclusively within the declaratory jurisdiction of the Commission in Court Session. Accordingly, and with the concurrence of the parties, at the commencement of the proceedings on 15 September 1998 I directed that consideration of Kellogg's application would continue to be dealt with by the Commission constituted as the Commission in Court Session pursuant to s 176(3) of the act. The matter so proceeded. 28 The consent of the parties distinguishes Kellogg from this matter as does the common ground that existed to have resolution of the declaration. In any event, Hungerford J's observation that the exclusive jurisdiction of s 154 is the Court begs the question. Here the contest is whether the issues should be dealt with in dispute proceedings and presumably whether by a Judicial Member or the Commission. 29 A more recent example of where the Commission has dealt concurrently with a s 154 application and a s 130 dispute notification is Unilever Australia Limited v Australian Workers' Union, New South Wales & Anor [2005] NSWIRComm 2, where Wright J President, determined proceedings pursuant to s 154 of the Act in circumstances where dispute proceedings had also been on foot together with applications for an award and an interim award. As his Honour observed at [2] there had been, arising out of certain negotiations, a number of industrial disputes and associated proceedings which had been the subject of hearings and conciliations before two other Members of the Commission, Marks J and Haylen J. 30 In my view, this matter had an unusual history which led to it being dealt with as an urgent matter during the Law Vacation. It is clearly distinguishable from the current proceedings as exceptional circumstances existed. There was a real guillotine about to fall which necessitated all legal remedies being dealt with by a certain time because of a contract between two corporations for the purchase of a business. 31 In this matter, the AMWU has consistently rejected Bevco's suggestion that the issues raised in the s 130 proceedings should be dealt with by an application for declaration. That issue was raised during the initial compulsory conference which occurred on 19 November 2004. 32 Although the AMWU submitted they are willing to accept dates being fixed for the hearing of this matter if the Commission chose to do so, they raised a concern that if such a course was adopted, Bevco would make an application that the s 130 proceedings be stayed pending the determination of this matter. 33 A careful consideration of the combination of all of the circumstances has led me to adopt a course which will give priority to the industrial dispute proceedings. At the conclusion of the dispute proceedings, the s 154 application can be considered as may be necessary. There is nothing in law which dictates a different approach. Furthermore, an application pursuant to s 154 involves discretionary considerations. I note and respectfully agree with the observations of Wright J President in Health and Research Employees' Association of New South Wales v Baptist Community Services NSW and ACT [2002] 122 IR 178 at [35] "that one of the important principles governing the exercise of the discretion to grant declaratory relief is or relates to the utility of doing so." 34 I should make clear that I am not saying that in every case this would be the outcome. The Court's discretion may run in other ways in a different case. However, given the history of this matter and the factors discussed, in my view, any discretion should operate in favour of the AMWU. 35 For the above reasons, I make the following orders: 1. This matter will stand adjourned until the completion of the proceedings in matter No IRC 6684 of 2004 and any proceedings arising therefrom. 2. The notifier/applicant in matter No IRC 6684 of 2004 shall have leave to approach my Associate to advise when that matter has been concluded at which time I will list this matter for further mention. 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.