Industrial Relations Commission of New South Wales CITATION : Hunter Water Australia Employees (State) Award 2000 [2002] NSWIRComm 65 PARTIES : Australian Services Union, NSW & ACT (Services) Branch Hunter Water Australia FILE NUMBER: IRC 3053 of 2000 CORAM: Harrison DP CATCHWORDS : Interlocutory decision - application of s173 LEGISLATION CITED : Industrial Relations Act 1996 CASES CITED : Re Transport Industry Quarried Materials Wages (State) Award (1997) 74 IR296 HEARING DATES: 04/05/2002 DATE OF JUDGMENT: 04/11/2002 APPLICANT Mr R Reitano of Counsel Instructed by Mr R Williams (ASU) LEGAL REPRESENTATIVES: RESPONDENT Mr B Cross of Counsel Instructed by Mr G Moses, Employers First JUDGMENT: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Thursday, 11 April 2002 MATTER NO IRC 3053 of 2000 HUNTER WATER AUSTRALIA EMPLOYEES (STATE) AWARD 2000 Application by Hunter Water Corporation Employees' Association for a new award INTERLOCUTORY DECISION [2002]NSWIRComm 65 1 The application in this matter was filed on 30 June 2000 by Hunter Water Corporation Employees' Association, now amalgamated with the Australian Services Union, NSW & ACT (Services) Branch('the Union'). 2 The matter was first listed for hearing on 12 July 2000, resulting in arrangements for the parties to confer and report back on 18 August 2000. The parties undertook intermittent discussion and report to the Commission throughout the balance of the year 2000 and 2001 in a schedule of mutual convenience to the parties. The matter moved concurrently with a notification pursuant to s 130 of the Industrial Relations Act 1996 ('the Act'), filed by the union (IRC2000/4746)('the dispute'). 3 The matter was subject to proceedings on 5 April 2002. Mr R Reitano of Counsel appeared on behalf of the Union instructed by Mr R Williams. Mr B Cross of Counsel appeared on behalf of HWA, instructed by Mr G Moses of Employers' First and Ms M Griffin of HWA. 4 The dispute matter is removed to the Commission in Court Session pursuant to an application made by Hunter Water Australia (HWA) in accordance with s 154 of the Act. 5 By correspondence dated 28 February 2002 the union sought listing of this matter, then standing adjourned to allow further discussion between the parties with leave to relist on request. The union made plain in their correspondence that they wished to move this application to arbitration independently and separately from the dispute matter. This correspondence, tendered by Mr Cross (Ex 1), states in part: With respect to the above Application for a new Award, the ASU is of the view that any further conciliation of the matter would be futile. As there is no reason why the Application for a new Award cannot proceed whilst the Section 154 Application is before Vice President Walton and given Section 162(2)(a) of the Act, I would respectfully request that the Application for a new Award be listed for directions as soon as possible. At any such directions hearing, the ASU would be proposing that a timetable be set for the hearing of the ASU's Application. At the directions hearing, the ASU may seek to have the Application referred to the President having regard to the State Wage Case Principles. I have forwarded a copy of this letter to Mr Moses of Employers First. 6 Subsequent to the advice from the union, the matter was listed for Mention on 13 March 2002. On 6 March 2002 correspondence was received from Employers First, acting on behalf of HWA (Ex 2) advising that a decision had been taken to invoke s 173 of the Act to have the matter removed to another member of the Commission and requesting that the scheduled Mention be vacated. The request to vacate the proceedings was declined, resulting in a request by the parties that the matter be rescheduled. This request was accommodated and the proceedings moved to 5 April 2002. 7 The union opposed the exercise of s 173 in the instant matter. 8 Mr Reitano argued that s 173 of the Act is not applicable in an award application, arguing that there is no specific statutory requirement for conciliation in respect to an award application as is found in other parts of the Act; and that conciliation had not occurred in these proceedings. The discourse between the parties and reports to the Commission being no more than normal process of preparing a matter for hearing. 9 Mr Reitano sought directions to expedite the matter to hearing, offering a draft of Short Minutes of Order, which would see the matter prepared for arbitration by 14 July 2002. 10 Mr Cross relied on reference to conciliation in exhibit 1, and transcript of proceedings in this and the dispute matter which record both matters being subject to concurrent report and conferences between the parties under the chairmanship of the Commission. Mr Cross further relied upon the decision of a Full Bench of Commission in Re Transport Industry Quarried Materials Wages (State) Award ('the Transport Award') (1997) 74 IR 296, in which he put the circumstances were similar. 11 In the Transport Award an award application was dealt with concurrent with a dispute, the Full Bench (Cahill VP, Peterson J, Murphy C) concluding that s 173 was applicable in such circumstances; and that the procedures undertaken in the Transport Award to bring the application to hearing represented conciliation; and that having regard to the general import of s 173, disqualification in any event would have been prudent. 12 Mr Reitano put that the issues arising in the dispute matter went to only one condition of employment, whilst the award application was comprehensive and directed to all issues of wages and conditions, distinguishing it from the circumstances of the Transport Award. 13 Whilst there is substance in the arguments advanced by Mr Reitano, I am compelled to the conclusion that removal to another member of the Commission is necessary, having regard to the Decision of the Full Bench in the Transport Award, and the silence allowed by s 173. 14 I am of the view that were the matter an application for an award alone, unaccompanied by a notification of dispute pursuant to s 130 of the Act, s 173 would not apply. The presence of the dispute matter creates sufficient uncertainty, having regard to the decision in Transport Award, to favour prudence in order to avoid further potential for delay. 15 I am compelled to the observation that conciliation is a term at times loosely used to refer to any discussion between the parties at which a Commission member is present. As can be seen from directions issued on 17 September 2001 in this matter, the parties were still describing the parameters of issues. These directions required: …… that the union provide a definitive document setting out the precise conditions of the Hunter Water Corporation Awards and/or agreement that they assert apply as preserved conditions, and as a separate document or incorporated therein in a similar form to MFI-3, the precise rates of pay and conditions of employment that the union assert should have properly applied to all employees. I further direct that Hunter Water Australia provide a definitive list of Hunter Water Australia employees to be transferred from the Hunter Water Corporation and their date of transfer to Hunter Water Australia. Secondly, I direct that Hunter Water Australia indicate on that list those employees who have left their employment and their date of departure. Thirdly, I direct that Hunter Water Australia identify those employees whom Hunter Water Australia assert has abandoned the preserved conditions of employment and the circumstances of that arrangement. These arrangements are to be detailed for each individual or group of individuals in a manner in which Hunter Water Australia say those arrangements have come about. Those arrangements are to be regarded as confidential and for the purposes of these proceedings only. The parties should attend to these requirements as a matter of some urgency. I would require that the parties complete an exchange of documents no later than Friday, 16 November 2001. Should they be able to achieve that earlier that would be desirable. I relist these proceedings for report back and further consideration from 9.45 am on Wednesday, 28 November 2001. An extract of transcript will be published in due course. Is there anything further you wish to deal with this morning, Mr Razborsek? RAZBORSEK: Just while you were talking, your Honour, that perhaps it would assist the union's side - and there's been no mention of the employees' classifications and now that we're speaking about the common rule awards - if we could as quickly as possible get a list of the employees and their classifications and what their common rule awards would be, that would assist us in putting our documents together and indeed, I tend to think that we can't finalise that until we've got that information indeed. 16 I observe that to this point the parties were engaged in what appeared to be a cooperative effort to ascertain the relevant information in order that the issues between them be better understood and had not commenced the process of negotiation. This is at odds with the purpose of s 173 as held by the Full Bench in the Transport Award, i.e. to ensure that no party in arbitration proceedings will be prejudiced in the hearing of the proceedings by virtue of the party having engaged in conciliation. 17 Mr Cross did not go to the substance of conciliation, noting that s 173 does not require a party to justify the request for removal of a matter to another member of the Commission. 18 It is regrettable, as the circumstances of this matter point out, that the nature of the prejudice, perceived or real, is not explained, leaving open the unsatisfactory conclusion that the exercise of rights pursuant to s 173 is motivated by an extraneous tactical or strategic desire to prejudice another party to proceedings. This may not be the case here, however, the vacuum leaves the conclusion available. 19 Matter No IRC 3053 of 2000 is referred to the President. oo0oo 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.