Industrial Court of New South Wales CITATION: Butlers Hire Pty Ltd v Collison (No 2) [2007] NSWIRComm 312 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPELLANT: Butlers Hire Pty Ltd PARTIES: RESPONDENT: Russell Kerry Collison FILE NUMBER(S): IRC 2050 of 2007 CORAM: Wright J President; Walton J Vice-President; Staff J CATCHWORDS: Appeal - Leave to appeal - Proceedings for recovery of award and long service leave payments - Failure of CIM to comply with requirements of s 371 of Industrial Relations Act - Agreement between the parties - Remitter of proceedings - Death of worker in whose favour proceedings before CIM had been determined - Worker had given evidence in CIM proceedings - Whether appropriate to give direction pursuant to s 197(4) as to such evidence - Direction made - Order also made as to conciliation pursuant to s 371. LEGISLATION CITED: Evidence Act 1995 s 63 Industrial Relations Act 1996 s 197, 371 Bilal (t/as The Hornsby Medical Centre) v Marshall (2006) 158 IR 269 Butlers Hire Pty Ltd v Collison [2007] NSWIRComm 288 Russell Kerry Collison v Butlers Hire Pty Ltd (unreported, 20 August 2007, Chief Industrial Magistrate Hart) CASES CITED: Faber v Greyhound & Harness Racing Regulatory Authority of New South Wales [2007] NSWIRComm 207 Palimex & Co Pty Ltd v Rodriguez [2007] NSWIRComm 269 SSWAHS v Kim and others [2007] NSWIRComm 241 Yetzotis v Crown in the Right of State of New South Wales (Commissioner of Corrective Services) (2005) 147 IR 50 HEARING DATES: 5 December 2007 DATE OF JUDGMENT: 14 December 2007 APPELLANT: Mr P Ginters of counsel Walter Madden Jenkins, Solicitors (Paul Walter) LEGAL REPRESENTATIVES: RESPONDENT: Mr R Tripodi of counsel The Australian Workers' Union, New South Wales (Graeme Beard) JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President STAFF J Friday 14 December 2007 Matter No IRC 2050 of 2007 BUTLERS HIRE PTY LTD v RUSSELL KERRY COLLISON Application by Butlers Hire Pty Ltd for leave to appeal and appeal against a decision and orders of Chief Industrial Magistrate Hart given on 20 August 2007 in Matter No CIM 124416 of 2005 JUDGMENT OF THE COURT [2007] NSWIRComm 312 1 In these proceedings the appellant, Butlers Hire Pty Ltd, has sought leave to appeal and, subject to leave to appeal being granted, appeals against the decision of the Chief Industrial Magistrate given on 20 August 2007 in Russell Kerry Collison v Butlers Hire Pty Ltd (unreported, Chief Industrial Magistrate Hart). As the appellant did not file its notice of appeal until 9 November 2007, it was obliged to seek an extension of time in which to appeal. That extension of time was granted by Staff J on 27 November 2007: Butlers Hire Pty Ltd v Collison [2007] NSWIRComm 288. 2 As noted by Staff J, the background to the proceedings before him and before the Chief Industrial Magistrate (CIM) included the following: [1] ... In [the CIM's] decision, his Honour found that the applicant had failed to comply with the provisions of the Exhibition Industry (State) Award and the Long Service Leave Act 1955. [2] His Honour ordered the applicant to pay a total sum of $29,695.39 representing outstanding overtime, compassionate leave entitlements, payment in lieu of notice, severance pay and long service leave. His Honour also ordered the applicant to pay the sum of $7,950, representing interest on the moneys owed to the respondent, Russell Kerry Collison, who had commenced proceedings in his capacity as Secretary of the Australian Workers Union, New South Wales Branch ("the Australian Workers Union"), on behalf of a member, Mr Savchenko. 3 Later in his judgment, his Honour referred to the fact that on 31 October 2007 the appellant's solicitors wrote to the Australian Workers' Union (the Union of which the respondent, Mr Collison, is State Secretary) contending that the CIM had failed to comply with the obligation imposed on him by s 371 of the Industrial Relations Act 1996, that provision being in these terms: 371 Conciliation to be attempted before order made (1) The industrial court is not to make an order under this Part until it has brought, or has used its best endeavours to bring, the parties to the application for the order to a settlement acceptable to those parties. (2) If such a settlement is made, the industrial court is required to make an order that, to the extent authorised by this Act, gives effect to the terms of the settlement. 4 The proceedings before Staff J were the subject of significant contest and his Honour dealt with the various issues raised in detail and, in the event, granted the application for extension of time. An important factor which the respondent raised as a matter of prejudice if the application for extension of time were granted was the fact that Mr Savchenko, the worker on whose behalf the respondent had commenced the proceedings before the CIM, had died on 29 August 2007, a little more than a week after the CIM had issued his decision. 5 Mr Savchenko had apparently given extensive evidence in the proceedings at first instance and in respect of the issue of prejudice his Honour noted the submission of the respondent in the following terms (at [13]): Furthermore, severe prejudice would be suffered by the respondent in respect of the quality of evidence available to it if the extension of time was granted and the appeal upheld because Mr Savchenko would not be able to give evidence. 6 In that regard Staff J noted at [23] in a passage with which we concur that: The respondent also submitted that particular prejudice would be suffered because of the death of Mr Savchenko. In considering this aspect of the matter, I am required to balance the overall interests of justice between the parties. The death of a party or important witness during proceedings, although rare, is not unprecedented and it is a factor that I take into account in the overall determination of this application. It may ultimately give rise to serious consequences for the respondent if the appeal is upheld. However, it cannot be the determinative factor in respect of this application. 7 The matter was then set down on 5 December 2007 for further hearing before Staff J to deal with the appellant's application for stay of the orders made by the CIM. However, on 30 November the parties advised the Court that agreement had been reached in respect of the substantive appeal and, as the agreement involved the grant of leave to appeal and the upholding of the appeal (matters which could not be dealt with by a single judge), the Full Bench was constituted to deal with the matter in the light of the parties' agreement. 8 The proceedings accordingly came before the Full Bench on 5 December and the Court was advised that the elements of the parties' agreement were, relevantly, that the appellant's application for leave to appeal be upheld and the appeal be allowed with the matter being referred back to the Chief Industrial Magistrate's Court. 9 During the course of the proceedings before the Full Bench, the Court raised with the parties whether it would be appropriate pursuant to s 197(4) for the Court to make a direction in respect of the receipt of the evidence of Mr Savchenko in any further contested proceedings that might occur in the Chief Industrial Magistrate's Court. Section 197(4) provides: (4) The Full Bench of the Commission in Court Session may refer a matter the subject of an appeal back to the Local Court with such directions or recommendations as it considers appropriate. That course was strongly opposed by counsel for the appellant but pressed, with a similar degree of rigour, by counsel for the respondent. 10 Also raised with the parties was whether the Court should make an order along the lines of the fourth order made in SSWAHS v Kim and others [2007] NSWIRComm 241, that order being in the following terms: 4. The Chief Industrial Magistrate shall prior to any hearing and determination of the proceedings, pursuant to s 371 of the Industrial Relations Act 1996 bring, or use its best endeavours to bring, the parties to the proceedings to a settlement acceptable to those parties; and, if such a settlement is made, to make an order that, to the extent authorised by the Industrial Relations Act 1996, gives effect to the terms of the settlement. 11 This matter being raised by the parties in view of the order made in SSWAHS v Kim and these proceedings (if the parties' agreement was accepted by the Full Bench) the sixth occasion in which the Full Bench of this Court had upheld an appeal from the Chief Industrial Magistrate specifically on the basis of failure to comply with the requirements of s 371(1) of the Industrial Relations Act. It might be noted here that the earlier five decisions to which we refer (and which were referred to by Staff J at para [24] of his decision on the extension of time) were Yetzotis v Crown in the Right of State of New South Wales (Commissioner of Corrective Services) (2005) 147 IR 50; Bilal (t/as The Hornsby Medical Centre) v Marshall (2006) 158 IR 269; Faber v Greyhound & Harness Racing Regulatory Authority of New South Wales [2007] NSWIRComm 207; SSWAHS v Kim and others [2007] NSWIRComm 241; Palimex & Co Pty Ltd v Rodriguez [2007] NSWIRComm 269. 12 We turn first to the issue raised by the provision of s 197(4) of the Industrial Relations Act, we note that counsel for the appellant opposed any direction being made under that provision in respect of the evidence of Mr Savchenko both on the basis of there being doubt as to whether there was power to make any such direction under that provision and, if there was such power, that it would be an inappropriate exercise of discretion because it could, first, unduly fetter the exercise of the Magistrate's discretion and powers when conciliation of the proceedings occurred under s 371(1) and, second, it would also unduly fetter the Magistrate's discretion in any contested hearing of the matter in respect of the evidence of Mr Savchenko. 13 We do not accept those submissions. In respect of the issue of power, true it is, that the subsection refers to the power to give "directions" rather than the power to make "orders" but nevertheless the power to issue or make directions is a wide conferral of power and there is no basis to find that the plain words of s 197(4) preclude the making of a direction of the kind under consideration. 14 As to the discretionary issues, at the outset we accept that it would be appropriate to make clear in any direction as to Mr Savchenko's evidence that the direction would apply only if and when conciliation failed. However, we discern no basis to find that the Magistrate's discretion or powers in conducting the conciliation would be affected inappropriately or adversely to either party by such a direction being made. 15 The other aspect which the appellant raised strenuously in this respects was its concerns that any such direction would unduly fetter the Magistrate's discretion as to the way in which he dealt with Mr Savchenko's evidence. In that respect, although counsel did refer to the power available to the Magistrate under the Evidence Act 1955, no specific reference was provided to the Court as to the relevant provisions thereof or how the appellant would approach that aspect in the proceedings before his Honour. 16 Although we have little doubt that there is available power under the provisions of the Evidence Act 1995 (see, for example, s 63 and clause 4 of Part 2 of the Dictionary to that statute), the Full Bench has before it a somewhat difficult and seemingly unique situation where there is clear prejudice in the circumstances that have arisen concerning the respondent through no fault of the respondent or that of its deceased member, Mr Savchenko, or of the Union represented by the respondent (the Australian Workers' Union). The problem that has occurred was because this was another in a series of failures by the Chief Industrial Magistrate to obey the mandate imposed on him by the legislature by s 371 of the Industrial Relations Act. 17 The prejudice which thereby occurred to the respondent was plainly recognised by Staff J but his Honour took the view (a view with which we completely agree) that the prejudice was not such that the appellant should be denied its extension of time within which to appeal because of the failure of the Chief Industrial Magistrate. 18 However, in those circumstances, it is appropriate on appeal for the Full Bench to take any reasonable step open to it in this very particular situation to ensure that the prejudice which has accrued to the respondent and to the estate of Mr Savchenko does not continue. A direction pursuant to s 197(4) in suitable terms as to Mr Savchenko's evidence will therefore be made. The weight to be given to such evidence will of course be a matter for the Industrial Magistrate hearing the matter. 19 Dealing with the issue relating to the making of an order adapted from that made in SSWAHS v Kim, counsel for the appellant submitted that such an order was not necessary in light of the observations of the Full Bench in Palimex & Co Pty Ltd v Rodriguez at [6] where the Full Bench said: Unless and until the legislature acts to alter those requirements, all Industrial Magistrates are bound to observe them. It is a matter of significant concern to this Court, that there has been another failure to do so, particularly given the consequences for the parties in question. 20 We do not consider that the slightly different approach taken by the Full Bench in Palimex & Co Pty Ltd v Rodriguez qualifies the appropriateness of the making of an order along the lines of that made in SSWAHS v Kim particularly since this is the sixth occasion of remitter to the CIM's court in similar circumstances. Such an order will therefore be made. 21 The Full Bench makes the following orders: 1. By consent: (a) Leave to appeal granted. (b) Appeal allowed. (c) The matter is referred back to the Chief Industrial Magistrate's Court. 2. By consent: (a) Notwithstanding Order 2 of Staff J's judgment, each party pay their own costs of the extension of time application. (b) No order as to the costs of the appeal. 3. The Chief Industrial Magistrate or Industrial Magistrate dealing with this matter as remitted to the Chief Industrial Magistrate's court shall, prior to any hearing and determination of the proceedings, pursuant to s 371 of the Industrial Relations Act 1996 bring, or use his or her best endeavours to bring, the parties to the proceedings to a settlement acceptable to those parties; and, if such a settlement is made, to make an order that, to the extent authorised by the Industrial Relations Act 1996, gives effect to the terms of the settlement. 4. (a) This order applies only if the conciliation in the Chief Industrial Magistrate's court required by s 371 of the Industrial Relations Act 1996 does not result in a settlement acceptable to the parties. (b) In any contested proceedings in the matter remitted by these orders to the Chief Industrial Magistrate's court, the evidence given by Mr Savchenko in the proceedings before Chief Industrial Magistrate Hart shall be admitted into evidence in those proceedings. ___________ AMENDMENTS HISTORY: 23/01/2008 - Citation altered by inserting "(No 2)" to the end of the case title. - Paragraph(s) 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.