Industrial Relations Commission of New South Wales CITATION : Transport Workers' Union of Australia, New South Wales Branch v Linfox Transport (Australia) Pty Limited [2000] NSWIRComm 72 APPELLANT Transport Workers' Union of Australia, New South Wales Branch PARTIES : RESPONDENT Linfox Transport (Australia Pty Limited FILE NUMBER: IRC 34 of 2000 CORAM: Wright J President; Hungerford J; Connor C Industrial Dispute - Strike action - Appeal against discontinuance of compulsory conference - Purported agreement in settlement of issues - Dispute still existed - Unwillingness of one party to participate in further conciliation - Statutory bar on actions in tort during conciliation - Duties and functions of Commission in conciliation and arbitration of disputes - Further conciliation to be attempted - Arbitration if necessary and appropriate - Appeal upheld. CATCHWORDS : Appeal - Application for leave to appeal against decision discontinuing compulsory conference - Purported agreement in settlement of dispute - Dispute still existed - Objects of statute - Statutory scheme for dispute resolution by conciliation and arbitration - Leave granted - Appeal upheld. Practice and Procedure - Industrial dispute - Duties and functions of Commission in dispute resolution by conciliation and arbitration - Discontinuance of compulsory conference in conciliation phase - Desire of one party to take tort action - Dispute unresolved - Further conciliation to be attempted - Arbitration if necessary and appropriate. LEGISLATION CITED : Industrial Relations Act 1996 s 3(g) s 130 s 141 s 174 s 187 s 188 Pt 1 of Ch 3 HEARING DATES: 04/11/2000 EXTEMPORE JUDGMENT DATE : 04/11/2000 APPELLANT Mr A A Hatcher of counsel SOLICITORS Andrew Metcalfe Transport Workers' Union of Australia, New South Wales Branch LEGAL REPRESENTATIVES: RESPONDENT Mr P Hall QC with Mr R M Goot of counsel SOLICITORS Corrs Chambers Westgarth JUDGMENT: - 9 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WRIGHT J, President HUNGERFORD J CONNOR C Tuesday, 11 April 2000 Matter No IRC 34 of 2000 TRANSPORT WORKERS' UNION OF AUSTRALIA, NEW SOUTH WALES BRANCH v LINFOX TRANSPORT (AUSTRALIA) PTY LIMITED Application for leave to appeal and appeal from a decision of Mr Justice Peterson given on 17 December 1999 in Matter No IRC 4230 of 1999 DECISION OF THE COMMISSION (extempore) 1 The Transport Workers' Union of Australia, New South Wales Branch has moved by way of an application for leave to appeal and, if granted, an appeal pursuant to ss 187 and 188 of the Industrial Relations Act 1996 (the Act) from a decision of Peterson J given on 17 December 1999 in compulsory proceedings under Pt 1 - Conciliation and arbitration of industrial disputes of Ch 3 - Industrial disputes of the Act, initiated by the present respondent, Linfox Transport (Australia) Pty Limited. The appeal concerns the decision of his Honour to discontinue the compulsory conference proceedings. 2 The question raised by the appeal was whether Peterson J erred in deciding that the proceedings should be discontinued, even though it was alleged the industrial dispute still existed, because the respondent was not willing to participate in further conciliation. The appellant submitted also that his Honour denied the appellant natural justice by not affording it the opportunity to respond to the respondent's contention that the respondent was not willing to participate in further conciliation when that contention was only raised in the respondent's submissions in reply; other issues concerning the proper operation of the Commission's powers of conciliation pursuant to Pt 1 of Ch 3 of the Act and the proper operation of s 141 of the Act as to the bar on actions in tort while the Commission was attempting to conciliate an industrial dispute were raised. 3 The proceedings at first instance were commenced by way of a notification lodged by the respondent pursuant to s 130 of the Act on 6 August 1999 in relation to an industrial dispute concerning the proposed redeployment of "surplus" employees of the respondent, members of the appellant, engaged as drivers at the respondent's Minchinbury site; the notification indicated the threat of industrial action by the appellant. After compulsory conference proceedings on 10 and 12 August 1999 before Peterson J, including industrial action on 12 August 1999 by the employees as threatened, his Honour was informed by the appellant on 13 August 1999 that the dispute had been settled by an agreement. The appellant, through its counsel, said to his Honour: As to the disposition of these proceedings, can I suggest that the proceedings be stood over generally with leave given or liberty given to the parties to ask for them to be listed at short notice if any problem occurs in the implementation of the agreement. 4 The advocate for the respondent concurred with the terms of settlement, then indicated in confidence to his Honour but openly tendered in later proceedings before Marks J to which we will refer, and he added as to the implementation of the agreement: To allow the process to take its course I can advise the Commission that Linfox will not take any notice against employees and suspend the notices by agreement with the union, that there will be further consultation over the next week and our expectation or our hope is that these proceedings can be discontinued by advice to your associate or when the matter comes back on . It is our expectation that the process will be successful and that any issues arising on implementation will be resolved by the parties at a local level. I am confident of such a successful process, and if there are any differences on the implementation, as my friend submitted, they would be brought back here, and the parties would be encouraged to do that. (emphasis added) 5 The respondent's advocate made it clear, as he said: … that on the arguments and the merits of the arguments that both parties have reserved their positions on those in the event we were compelled to argue it. It is not our expectation that this agreement will come apart. 6 Peterson J received the confidential agreement by sealing it in an envelope and placing it with the file. His Honour then stated, in concluding the conference on 13 August 1999 and congratulating the parties: I will retain the file and should there be the desire by any party to have the matter relisted in the course of putting the matter to bed, as it were, I will be available. 7 The matter apparently then proceeded uneventfully until 15 October 1999 when the respondent wrote to the associate to Peterson J effectively enquiring whether the compulsory conference proceedings had been discontinued or dismissed, but, if not, then that they be so dismissed pursuant to s 174 of the Act. Due to his Honour's absence on leave, the issue was referred to Marks J following a request by the respondent in a letter dated 8 November 1999 to the associate to the President, who heard it on 10 November 1999. On the same day, Marks J published a decision which, after reciting the history, recorded a submission by counsel for the respondent: … that the company required that [its] request be dealt with because of the provisions of s 141 of the Industrial Relations Act 1996. This provides in part that a person may not bring or continue an action in tort, to which Pt 3, Ch 3 of the Act applies, while the industrial dispute to which the action relates is subject to conciliation by the Commission. It seems, as counsel intimated, that the respondent was contemplating proceedings in tort against persons involved in the dispute which was before Peterson J, although perhaps not in the same form, so that it required clarification as to the status of such proceedings. 8 As to the purported agreement reached between the parties on 13 August 1999, Marks J said: The agreement says in part that no employees at Minchinbury will be made redundant or transferred for an eighteen-month period from 12 August 1999, subject to certain provisos. It was asserted by Mr Metcalfe on behalf of the union that at the meeting between representatives of the union and the representatives of Linfox at Minchinbury held last Friday (5 November 1999), that Linfox indicated that it wished to transfer four drivers and two vehicles out of the Minchinbury site and that this was in contravention of this particular provision in the agreement. Mr Goot on behalf of the company vehemently denied that the company had any such intention. ... … I did offer to the parties to chair a private conference between them with a view to endeavouring to create some process to enable this particular dispute to be resolved but Linfox declined to participate in such a conference. 9 Marks J then concluded that prima facie there was a dispute between the parties about that particular provision of the agreement reached in the dispute proceedings before Peterson J. The appellant's advocate alleged there were certain other matters referred to in the agreement which were also unresolved and on that basis the dispute remained alive. His Honour then concluded: In those circumstances it seems clear to me that the dispute which was the subject of the dispute notification made by Linfox to this Commission and which was dealt with by Peterson J remains unresolved. In this sense, I am unable to conclude that whatever the position may have been reached in connection with the proceedings before Peterson J, that this dispute no longer exists as a matter of fact. On reaching this conclusion, I make no comment of any kind about the status of the proceedings before Peterson J. Whatever the status of those proceedings and whatever representations were made to his Honour, it seems to me that the dispute or at least one part of it, continues to exist and therefore to be a live issue between the parties. Hopefully the parties will engage in some meaningful good faith discussions between themselves as to the resolution of this dispute and any other matter arising out of the proceedings before Peterson J and the purported settlement of those proceedings which remains an issue. Of course, this Commission remains willing to assist the parties in the resolution of the dispute. 10 Due to other commitments of Marks J, he returned the file to Peterson J who was due to return from leave on 15 November 1999. 11 Thereupon, the proceedings resumed before Peterson J on 25 November 1999 and 14 December 1999. On 17 December 1999, his Honour gave the now challenged decision. In operative respects, that decision stated the following conclusions: Firstly, I am not disposed to treat the earlier observations of Marks J as binding upon me at the present stage of the matter. It seems clear from his Honour's observations that the allegations made by the TWU in the proceedings before his Honour were such as to prevent the conclusion that the dispute no longer exists as a matter of fact. Nevertheless, I find myself in only a marginally better position than his Honour to decide the question. The parties have been prepared to rely upon counter assertions although in a context where issues of onus have been raised. As was observed in the course of the proceedings, it seems to me that the Commission's function for present purposes is not concerned with ensuring a party is sheltered from any particular consequences of its actions, but must be exercised according to the reality of the circumstances which underpin this matter. I do not consider that these proceedings should be continued if in truth they were resolved on 13 August by the agreement then reached and then implemented. On the other hand, if that agreement was not finalised by its implementation then the observations on transcript by the parties and the Commission would seem to operate unavoidably to indicate that there has been a failure to conclude the dispute in the agreed fashion and it remains extant. I consider that there is room for the conclusion that there has been a failure to conclude the dispute in the agreed fashion. The consequence of that view, however, is that the TWU's proposal to the effect that the matter remain on foot and conciliation be attempted would operate. Were there issues capable of conciliation, I would agree with that course. However, the position adopted by Linfox is now clear: there is no room for further conciliation on the issues raised in the proceedings, whether they be a hangover of the earlier proceedings or new issues arising thereafter. Were I to attempt to require Linfox to participate in conciliation it seems that not only would that be a futility but the result would be the issuance of a certificate of attempted conciliation which would have the effect sought by Linfox, namely to leave open to it such common law rights which s 141 is concerned. In these circumstances I consider the appropriate course is that I discontinue the proceedings forthwith . (emphasis added) 12 Whatever else may be said about this matter, it is clear to us that a real issue arises concerning the practical operation of the dispute settling provisions of the Act in a context, most importantly, where two judges of this Commission have found that the subject matter, in whole or in part, of the dispute between the parties remained unresolved. Notwithstanding that finding, Peterson J discontinued the compulsory conference, and thus the proceedings, during the conciliation phase without making any recommendation or direction; certainly, regardless of the apparent differences between the parties expressed before his Honour, no certificate of attempted conciliation was issued nor contemplated. Those issues, as they developed in the proceedings, in our view, raise matters of such importance consistent with s 188 of the Act that in the public interest leave to appeal should be granted. We will so grant leave. 13 Section 3 - Objects of the Act in para (g) states: (g) to provide for the resolution of industrial disputes by conciliation and, if necessary. by arbitration in a prompt and fair manner and with a minimum of legal technicality, 14 Chapter 3 - Industrial disputes of the Act represents, in our view, the statutory scheme giving effect to that object. We are of the opinion that it is that scheme, setting out as it does the duties and functions of the Commission in the conciliation and arbitration of industrial disputes, which directs the determination of this appeal. 15 Peterson J had before him an industrial dispute between the parties on the notification of the respondent. It was, on our review of the material and in light of the submissions of the parties on appeal, reasonably open to conclude that the question, dispute or difficulty between them was the subject of an agreement on 13 August 1999 in full and final settlement of the dispute in such a way as not to be used by either party in pursuit of future claims. We think that means what it says. However, as indicated to his Honour on 13 August 1999, and as he accepted, if there were any differences (disputes or disagreements) on implementation of the agreement they would be referred to his Honour and, indeed, the parties would be encouraged to do that. And, so, and as asked, his Honour gave leave for the matter to be relisted. 16 It is inexplicable, it seems to us in the circumstances as apparently agreed, that by letter dated 18 October 1999 the respondent advised the appellant it, in effect, reserved its position to take legal proceedings against the appellant in relation to the industrial action which occurred during this dispute on 12 August 1999. Of course, that is a matter for the respondent, but it is clearly a matter motivating the making of its application to Peterson J to discontinue the compulsory conference proceedings to clear the way, as it were, under s 141 of the Act to bring tort action at common law in respect of the 12 August 1999 strike action. 17 The relevance of that motivation for present purposes, and the respondent's blunt but frank statement that there was no room for further conciliation, had the effect of distracting his Honour from furthering the extant industrial dispute in the compulsory conference in accordance with the statutory scheme. Indeed, it led his Honour to conclude, wrongly in our view, that further conciliation would be a futility. That was not an error in the exercise of a mere discretion but rather the failure to take into account relevant matters, namely, the statutory scheme in the Act, and the taking into account of irrelevant matters, namely, the subjective views of the respondent based on its desire to utilise s 141 of the Act. All of that, we would add, where both Marks J and Peterson J found there to be outstanding issues in the dispute. In the result, his Honour discontinued the proceedings. In our view his Honour erred in so doing. 18 We are satisfied, particularly having in mind the substantial nature of the agreement reached between the parties on 13 August 1999, that further conciliation in this matter should be attempted. Not to do so would deny, in our view, the proper and due process contemplated by the Act for the orderly disposition of industrial disputes. Of course, if agreement cannot be reached then the proceedings may move, on the issue of a certificate of attempted conciliation, to arbitration. 19 We make the following orders : 1. Leave to appeal is granted. 2. The appeal is upheld. 3. The challenged decision of Peterson J given on 17 December 1999 is quashed. 4. The industrial dispute in Matter No IRC4230 of 1999 is remitted for re-allocation by the President to a member of the Commission for further conciliation, and to the extent necessary and considered appropriate, for arbitration pursuant to the provisions of Pt 1 of Ch 3 of the Act. 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.