Industrial Relations Commission of New South Wales CITATION: NSW Road Transport Association Inc and Transport Workers' Union of NSW [2006] NSWIRComm 65 Applicant: PARTIES: NSW Road Transport Association Inc Respondent: Transport Workers' Union of NSW FILE NUMBER(S): IRC149 of 2006 CORAM: Kavanagh J CATCHWORDS: Application for stay - relevant principles – arguable case - stay granted but on terms – agreed rate increase entitlement reflected in terms of stay LEGISLATION CITED: Industrial Relations Act 1996 s179 CASES CITED: Transport Industry - Waste Collection and Recycling (State) Award (2000) 102 IR 192 HEARING DATES: 16/02/2006 EXTEMPORE JUDGMENT DATE: 02/16/2006 Applicant: Mr J.V Murphy of counsel with Mr S.Schmitke, NSW Road Transport Association LEGAL REPRESENTATIVES: Respondent: Mr A.A. Hatcher of counsel with Mr C. Heuston, Transport Workers Union of NSW JUDGMENT: - 4 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Kavanagh J 16 February 2006 Matter No IRC 149 of 2006 NSW ROAD TRANSPORT ASSOCIATION INC AND TRANSPORT WORKERS' UNION OF NSW Application by NSW Road Transport Association Inc for leave to appeal and appeal an extempore decision of Justice Marks given on 23.12.05 in Matter No IRC 6113 of 2005 EX TEMPORE JUDGMENT [2006] NSWIRComm 65 1 The applicant, the NSW Road Transport Association Inc, seeks leave to appeal and subject to leave being granted, appeal a decision of Marks J given on 23 December 2005. The matter is before me for hearing of an Application for a Stay of the Orders of Marks J. 2 Marks J increased the rates of remuneration payable to contract carriers under the Transport Industry - Car Carriers (New South Wales) Contract Determination by 6.06 per cent. 3 I have read the decision of Marks J. It appears from a reading of the decision and from facts revealed in submissions that there was an agreement between the parties that the carriers were entitled to a rate increase in the circumstances of 1.58 per cent. 4 I thank both parties for their written submissions. These assisted me in determining the facts which were the foundation for his Honour's decision. 5 Wright J, President in the Transport Industry - Waste Collection and Recycling (State) Award (2000) 102 IR 192 outlined the considerations the Commission should take into account in exercising its discretion for a stay of a judgment of the Commission. 6 I accept those considerations as conveniently outlined by the respondent to the appeal as follows: (1) 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. (2) A court has an appropriate discretion whether or not to grant the stay and as to the terms that would be fair if a stay be granted. (3) The onus is upon the applicant for a stay to demonstrate a proper basis for a stay that will be fair to all the parties. (4) In the exercise of discretion of considerations including the balance of convenience and the competing rights of the parties need to be considered and weighed. (5) Where there is a risk that the appeal will prove abortive or nugatory if a stay is not granted then the normal exercise of discretion will result in grant of a stay. (6) Although, generally speaking, it is inappropriate in relation to an application for a stay to speculate as to the appellant's prospects of success, this does not prevent a court, in the context of considering the specific terms of the stay that will appropriately and fairly adjust the interests of the parties, from making a preliminary assessment as to whether the appellant has an arguable case. 7 It is appropriate to make a preliminary assessment as to whether the applicant has an arguable claim. At the heart of the issue on appeal is whether, given there was an agreed formula for the payment of the said rate, his Honour took into account, in striking the rate, the history which reveals that an error, in time past, in calculations meant the carriers had received payments (ongoing with adjustments) in excess of entitlement. 8 Much has been put to me in argument about the effect of s179 of the Industrial Relations Act 1996 which, it is asserted by the applicant, had the effect of forcing his Honour into error in determining s179 protected past decisions without addressing the historical error in the calculations. 9 However if, as I have enunciated, the issue is whether his Honour properly took into account the over-compensation payments made to Carriers in his calculations then in my view there is an arguable case which should go forward on appeal. 10 I am therefore persuaded the onus has been met by the applicant and I intend to grant a Stay. 11 However, I am not persuaded that, because the award affects 150 carriers and it maybe difficult to retrieve any monies paid by the applicant such is sufficient reason for me to fully Stay the decision of Marks J. On balance, I determine a grant of the Stay but on terms. 12 I have before me some schedules. These schedules went before Marks J. The schedules reveal the carriers have been carrying cost increases to conduct their businesses - fuel and wages expenditure have significantly increased. 13 As a matter of fairness to all parties I find there should be an increase of the rate paid to the carriers pending the decision on appeal. 14 I have determined, from the agreement of the parties that it was acknowledged the carriers are entitled to at least a 1.58 per cent rate increase. I do not believe this minimum increase will satisfy, in fairness, the increase in overheads being carried by the carriers pending appeal. 15 As a matter of fairness to all parties and in the use of my discretion in the grant of a Stay, I place the following condition: the applicant is to pay from the date his Honour determined as the appropriate date, namely 23 December 2005, a 2.5 per cent rate increase to the relevant carriers pending the determination by the Full Bench of the Commission of the appeal. 16 I so order. 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.