Industrial Relations Commission of New South Wales CITATION : McPhee Transport v TWU [2001] NSWIRComm 161 APPELLANT McPHEE TRANSPORT (AUSTRALIA) PTY LIMITED PARTIES : RESPONDENT TRANSPORT WORKERS' UNION OF AUSTRALIA, NEW SOUTH WALES BRANCH. FILE NUMBER: IRC4736 of 2001 CORAM: Peterson J CATCHWORDS : Appeal from decision and orders of member of the Commission - application for stay of orders of reinstatement in employment - orders made in dispute proceedings - principles applicable to a consideration of the matter - need for appellant to establish sufficient reason for a stay - balance of convenience - arguable case - stay granted with condition that pay be deposited into joint bank account pending appeal. LEGISLATION CITED : Industrial Relations Act 1996 ss130 133 134 135 136 137 173 CASES CITED : Alexander and ors v. Cambridge Credit Corporation Ltd (Receivers Appointed) and anor (1985) 2 NSWLR 685 at 694-695 Transport Industry (Courier & Taxi Truck) Contract Determination (Unreported, 21 December 1992, per Hungerford J) HEARING DATES: 07/17/2001 DATE OF JUDGMENT: 07/18/2001 APPELLANT Mr R J Buchanan QC with Mr A B Gotting of counsel SOLICITOR Blake Dawson Waldron, SYDNEY. LEGAL REPRESENTATIVES: RESPONDENT Mr A A Hatcher of counsel UNION Transport Workers' Union of Australia, New South Wales Branch. SYDNEY. JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: PETERSON J DATE: 18 JULY 2001 Matter No. IRC4736 of 2001 McPHEE TRANSPORT (AUSTRALIA) PTY LIMITED AND TRANSPORT WORKERS' UNION OF AUSTRALIA, NEW SOUTH WALES BRANCH Application for leave to appeal and appeal against an interim decision and the interim orders of Connor C given on 13 July 2001 in Matter No. IRC01/4699. DECISION RE STAY APPLICATION 1 This is an application for a stay order in appeal proceedings taken from a decision of, and interim orders made by, Commissioner Connor on 13 July 2001, the effect of which was to order the reinstatement of three persons who had been dismissed by McPhee Transport (Australia) Pty Limited ('McPhee') on that day, apparently for reasons alleged to constitute misconduct. 2 At 1.59pm on 13 July the Transport Workers' Union of Australia, New South Wales Branch ('the TWU') filed a notification pursuant to s.130 of the Industrial Relations Act 1996 ('the Act') of a dispute between it and McPhee. It sought an urgent listing of a "question, dispute or difficulty" concerning a number of matters including the dismissal of two union delegates and another employee. It made other allegations which are not presently relevant, save for their potential to support the proposition advanced on the stay application by the TWU that there was pending at the time a serious potential industrial dispute relating to the dismissals. The notification also observed that normal work was being conducted by the employees. 3 Commissioner Connor listed the matter for compulsory conference at 4pm that day. The TWU attended; McPhee did not. 4 The following summary of facts is taken from the affidavit of urgency of Michael Chee Liang Seck, relied on in support of the application for leave to appeal and appeal and the stay. 5 McPhee had been notified at about 3pm by telephone by a Commission staff member that the matter was listed at 4pm. This was confirmed by facsimile at 3.12pm. It appears that the Notice of Appointment of Hearing was sent to a facsimile number, the machine for which was not under constant supervision and the message was not recovered until 7.30pm that day. Nevertheless, the telephone notification was conveyed by a McPhee receptionist to the National Operations Manager, Mr Canton. He attempted, but failed, to contact relevant McPhee managerial staff. I regard this notification as one which must be accepted as effective to notify McPhee of the pending proceedings at 4pm, although not necessarily the subject matter thereof. 6 Mr Seck's affidavit relates that at approximately 4.20pm another member of the Commission's staff contacted the McPhee receptionist and advised that if McPhee did not contact Commissioner Connor immediately, then he intended to reinstate the three persons involved to their former positions with McPhee. This was then passed through one managerial employee to Mr Browning, the National Human Resources and Industrial Relations Manager at McPhee, who was advised to contact the Commission immediately. 7 At about 4.40pm Mr Browning contacted Commissioner Connor's Clerk who advised that he was currently hearing the matter. Mr Browning requested to speak to the Commissioner directly over the telephone. The Clerk then spoke to the Commissioner and advised Mr Browning that the Commissioner would not talk to him but would contact him at the conclusion of the hearing. It is said that Mr Browning did not receive a phone call from the Commissioner that day or subsequently. 8 At 6.52pm that afternoon the TWU sent, by facsimile, a copy of the decision and orders of Commissioner Connor to the same facsimile machine referred to in relation to the 3.12pm facsimile. 9 Mr Seck's affidavit also records that on Monday, 16 July 2001 the TWU had threatened nation-wide industrial action throughout the operations of McPhee and the TNT Group of Companies arising out of the conduct of the appellant, apparently, in appealing from the order. 10 The transcript of the proceedings before the Commissioner is unavailable at this stage. However, it is beyond dispute that the proceedings before the Commissioner will record only one side of the matter, McPhee having been absent from the proceedings. It is apparent from the terms of the Commissioner's decision that he regarded McPhee as having refrained, seemingly deliberately, from attending the proceedings that day. It is also clear from the decision that he had formed the view that McPhee was seriously at fault. The decision refers to "the confrontational approach that seems to be adopted by McPhee management on this occasion . . .". The Commissioner concludes: "This is a declaration of war by McPhees, in my opinion." 11 The Commissioner issued a certificate of attempted conciliation (s.135(2)). The decision records "Conciliation is not going to work in this case if the employer does not appear in the proceedings." 12 The appeal proceedings raise substantial issues which appear to me to be reasonably arguable. Those issues include: · Whether conciliation was attempted as required by ss.133 and 134. · Whether in the circumstances the Commissioner was empowered to issue a certificate of attempted conciliation. · Whether McPhee was deprived of its rights under s.173 of the Act to object to the Commissioner arbitrating the matter, if conciliation had been attempted. · Whether McPhee was denied natural justice in that it was not given a practical opportunity to be heard. · Whether the Commissioner had the power to make an interim order of reinstatement. · The question of the effectiveness of the powers conferred by Chapter 3, Industrial Disputes of the Act to act in relation thereto in the absence of a party. 13 This decision is not intended to reflect on the utility of the powers conferred on the Commission in circumstances where one party is absent from proceedings. The powers are as they are conferred; their exercise is a matter to be approached in the circumstances of each case. Whether they were properly exercised in the matter now under appeal is a not a question for this decision. 14 The issue for determination upon an application for a stay of an order pending appeal is not whether the order was justified in the circumstances of the case but whether that order should be stayed. The principles applied by this Commission have conformed with those laid down by the Court of Appeal in Alexander and ors v. Cambridge Credit Corporation Ltd (Receivers Appointed) and anor (1985) 2 NSWLR 685 at 694-695. That judgment makes clear that it is not necessary for an appellant to establish "special" or "exceptional" circumstances to justify a stay. It is sufficient to demonstrate "a reason or an appropriate case to warrant the exercise of discretion . . . ". Other principles referred to by the Court of Appeal include these: · The onus is upon the applicant to demonstrate a proper basis for a stay that will be fair to all parties. · The mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears. · In the exercise of its discretion, the court will weigh considerations such as the balance of convenience and the competing rights of the parties before it. · Where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay. · Although courts approaching applications for a stay will not generally speculate about the appellant's prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them considering the specific terms of a stay that will be appropriate fairly to adjust the interest of the parties, from making some preliminary assessment about whether the appellant has an arguable case. 15 In my opinion, the circumstances of this case do demonstrate an appropriate case to exercise discretion in favour of the appellant. This is not a case where the TWU is entitled to lay claim to a right to hold the "fruits of its victory" pending appeal. The absence of the appellant from the primary proceedings creates considerable difficulty in viewing the result as one analogous to the usual case where two parties have been heard, a deliberation upon the competing cases has been undertaken and a determination made. 16 If the decision under appeal were not stayed, the position would be that McPhee would be bound to employ, pending the appeal, three persons it has dismissed on the ground of misconduct, which, in the final analysis it may be able to sustain. That result involves considerations which are difficult indeed. On the other hand, if the decision is stayed the three persons who have been dismissed are without employment pending the hearing and determination of the appeal. They do have options, although perhaps hard ones, in the interim and, if the appeal is unsuccessful, payment for the interim period by the respondent will virtually follow. 17 It was submitted for the TWU that the Federal Court applies a principle in cases like this that the mere allegation of difficulty in recovering payments made pending a successful appeal is insufficient to justify a stay, in the absence of some evidence on the point. The authority was not identified. How evidence to support the possibility of that difficulty would be called is to my mind a moot point. In any event, again this is not an appeal which involves the usual case of both parties having been heard at first instance. I prefer the view taken previously in this tribunal in, for example, Transport Industry (Courier & Taxi Truck) Contract Determination (Unreported, 21 December 1992, per Hungerford J) where, in relation to the question of a stay of an order of reinstatement his Honour said: The question then is whether the appellant has established or demonstrated a reason or an appropriate case. In my view the appellant has, and it may be tested in this way. If a stay were granted and the respondent succeeded on the appeal it could still obtain all the relief to which it then was entitled. If a stay were not granted, however, then the respondent would be unfairly advantaged if the appellant was successful on the appeal because Ms van Ryan would have been reinstated in the meantime and paid monies. The granting of a stay order here would not unfairly, in my view, advantage the appellant over the respondent. The balance of convenience favours the challenged decision being stayed. I therefore make an order that the decision and determination made by Conciliation Commissioner McKenna on 15 December 1992 be stayed pending the determination of the appeal or until further order of the Full Commission. 18 I would, with respect, adopt that view as being apposite, perhaps with greater force, in the present circumstances of this case. However, I intend to impose a condition upon the stay which provides appropriate protection to the income which would otherwise be received by the three persons pending appeal but for the stay. 19 I order that the order of Commissioner Connor made 13 July 2001 in Matter No. IRC4699 of 2001 be stayed pending the hearing and determination of the appeal proceedings upon the condition that during that pendency McPhee deposit ordinary time wages in respect of the three persons, at the rate applicable to them in their former employments, into a controlled bank account held jointly by solicitors for the appellant and the respondent. 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