Industrial Relations Commission of New South Wales CITATION: Express Data (A Division of Dimension Data Australia Pty Ltd) and NUW, Re [2005] NSWIRComm 140 APPELLANT: Express Data (A Division of Dimension Data Australia Pty Ltd ACN 003 371 239) PARTIES: RESPONDENT: National Union of Workers, New South Wales Branch FILE NUMBER(S): IRC 1133 of 2005 CORAM: Wright J President; Walton J Vice-President; O'Neill C CATCHWORDS: Appeal - Application for leave to appeal - Industrial dispute - Interlocutory order for re-employment in dispute proceedings - Proceedings not appropriate vehicle to deal with possible issues of principle - Role of registered organisations - Statutory scheme - Leave to appeal refused - Appeal dismissed LEGISLATION CITED: Industrial Relations Act 1996 s 84 s 89 s 130 s 136 s 137 Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Caltex Petroleum Pty Limited and Others v Harmer (1999) 92 IR 264 CASES CITED: Dimension Data Pty Ltd v National Union of Workers, New South Wales Branch [2005] NSWIRComm 81 National Union of Workers, New South Wales Branch on behalf of Mr Arvin Tubungbanua and Express Data Pty Limited [2005] NSWIRComm 57 HEARING DATES: 04/01/2005 DATE OF JUDGMENT: 04/27/2005 APPELLANT: Ms K T Nomchong of counsel Shanahan Tudhope, Lawyers (Mr Dean Rutherford) LEGAL REPRESENTATIVES: RESPONDENT: Mr A P Joseph of counsel National Union of Workers, New South Wales Branch (Mr Stefan Mueller) JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President O'NEILL C Wednesday 27 April 2005 Matter No IRC 1133 of 2005 EXPRESS DATA (A DIVISION OF DIMENSION DATA AUSTRALIA PTY LTD ACN 003 371 239) AND NATIONAL UNION OF WORKERS, NEW SOUTH WALES BRANCH Application by Express Data (a Division of Dimension Data Australia Pty Ltd ACN 003 371 239) for leave to appeal and appeal against a decision of Justice Backman given on 25 February 2005 in Matter No IRC 423 of 2005 DECISION OF THE COMMISSION [2005] NSWIRComm 140 1 In these proceedings Express Data, the applicant for leave to appeal, seeks leave to appeal against the interlocutory decision of Backman J of 25 February 2005 in which her Honour ordered, on an interim basis pursuant to s 136 or s 137 of the Industrial Relations Act 1996, the re-employment of Mr Arvin Tubungbanua, a member of the respondent, the National Union of Workers, New South Wales Branch (NUW): National Union of Workers, New South Wales Branch on behalf of Mr Arvin Tubungbanua and Express Data Pty Limited [2005] NSWIRComm 57. The order was made having regard to imminent proceedings before Cambridge C pursuant to s 84 of the Industrial Relations Act. 2 The Full Bench has determined to refuse leave to appeal in this matter and to dismiss the appeal. 3 In refusing leave to appeal, we propose to make some brief, albeit not exhaustive, observations as to the proper administration of the Commission's dispute settling jurisdiction under Parts 1 and 2 of Chapter 3 of the Industrial Relations Act. The Full Bench gave anxious consideration to whether these proceedings were a proper vehicle to determine authoritatively the approach to be taken when, in the context of the dismissal of an employee or a number of employees, a registered organisation of employees notifies dispute proceedings pursuant to s 130 of the Act and seeks relief, on either an interim or final basis, pursuant to ss 136 or 137. 4 We have come to the conclusion that these proceedings do not provide an appropriate vehicle for these issues to be explored or determined. We have reached this conclusion because of key features of the approach adopted by the parties both at first instance and on the application for leave to appeal. That is, a failure to adequately address as a matter of law and principle, how an application for reinstatement or re-employment by a Union on behalf of its member or members (or an interim application of that kind) under s 136 or s 137 should be approached. Such issues may well require authoritative determination by a Full Bench in a suitable case either on appeal or by reference pursuant to s 193. 5 We consider that the essential thrust of the parties was to approach the proceedings as if they were or involved proceedings pursuant to s 84 of the Industrial Relations Act when they were plainly not such proceedings. The fallacy of that approach is exemplified by the reliance by the applicant on the failure of her Honour to require the respondent to provide at first instance an undertaking as to damages, an issue which we consider has been sufficiently disposed of by Walton J, Vice-President in his Honour's decision on the applicant's stay application in respect of her Honour's decision: see Dimension Data Pty Ltd v National Union of Workers, New South Wales Branch [2005] NSWIRComm 81. We consider that there is no basis for undertakings as to damages to be required or given in dispute proceedings or when dispute orders may be sought. 6 Further, the associated difficulty in the parties' approach, was the contention that the use, by the respondent Union, of s 130 proceedings was in some way unavailable or improper because it would place the dismissed employee, Mr Tubungbanua, in "a vastly superior position" to other applicants in s 84 proceedings "who are in the queue awaiting a determination of their claims from the Commission". 7 We consider the fallacy of that approach is that it assumes that her Honour was erecting a principle or creating a precedent as to the granting of dispute orders pursuant to ss 136 and 137 of the Act. We do not consider that her Honour was doing anything of the sort. It is plain that the granting of interim orders of reinstatement or re-employment as part of the Commission's dispute settling procedures is a remedy of an exceptional nature. We do not consider her Honour's decision reveals any misapprehension of that situation. 8 To deprecate the use, by registered organisations, of the Commission's dispute settling powers is to misunderstand the importance of the role of registered organisations in the Commission's industrial jurisdiction under the Industrial Relations Act. It is not to the point that the approach adopted by a registered organisation is, by reference to other proceedings, an unusual one. Registered organisations must appreciate that what occurred in these proceedings was, as we have noted, exceptional, but once that consideration is given due emphasis, suggestions of "queue-jumping", or the like, are misplaced and do not reflect the statutory scheme. 9 In declining to grant leave to appeal we have also had regard to the pendency of the arbitration before Cambridge C next month and that it will be necessary, when the s 84 proceedings come before Cambridge C, that the s 130 proceedings also be listed before him so that, by or before the conclusion of those proceedings, he may revisit the interim decision to the extent appropriate in the light of the progress of the proceedings before him and may vary or terminate the interim orders if he deems it appropriate. 10 As the Full Bench said in Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 the scheme of the 1996 statute "[gives] primacy to first instance decision making in a manner not earlier found in industrial legislation in this State". The decision of Backman J was an interlocutory decision which, as we have observed, will require revisiting by Cambridge C next month. The fact that the interim decision was made will not affect the Commissioner's separate assessment of whether the tripartite test in s 84 has been satisfied and his discretion as to whether any remedy under s 89 should be granted. To grant leave to appeal, in the particular circumstances of these proceedings would be contrary to the long-standing approach of the Commission and its predecessors to discourage appeals from interlocutory decisions: see, for example, Caltex Petroleum Pty Limited and Others v Harmer (1999) 92 IR 264. 11 The Full Bench orders: 1. The application for leave to appeal is refused. 2. The appeal is dismissed. ________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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