Industrial Relations Commission of New South Wales CITATION: Interim Transport Industry - Courier and Taxi Truck Contract Determination [2009] NSWIRComm 73 APPLICANT Courier and Taxi Truck Association FIRST RESPONDENT Australian Business Industrial SECOND RESPONDENT Australian Federation of Employers THIRD RESPONDENT PARTIES: CLC Deliveries Pty Limited ATF Hunter Transport Trust t/as Hunter Express FOURTH RESPONDENT Crisis Couriers FIFTH RESPONDENT Mail Call Couriers SIXTH RESPONDENT New South Wales Road Transport Association Inc in liquidation SEVENTH RESPONDENT Transport Workers' Union of New South Wales FILE NUMBER(S): IRC 3303 of 2005 CORAM: Marks J CATCHWORDS: Application to vary Contract Determination - Contract Determination regulates conditions and remuneration - amended application seeking the making of a comprehensive new Contract Determination - amended application withdrawn - amended application confined to calculation of daily safety net hours - application made to strike out amended application - application rejected - negotiations broken down - characterisation of industrial dispute - application for disqualification - held s 173 does not apply to these proceedings - s173 if applied depends on the characterisation of the subject matter of the dispute - at all relevant times what was in dispute was the way in which the safety net clause should operate - application under s173 is dismissed. LEGISLATION CITED: Industrial Relations Act 1996 s135, s140, s141, s173, s313, s315, s316, s343, s351 Brown v Coca-Cola Amatil (Aust) Pty Ltd (2001) 123 IR 33 CASES CITED: Commissioner of Police v Police Association of New South Wales (2005) 141 IR 423 Reid Transport Industry - Quarried Materials Wages (State) Award (1997) 74 IR 296 HEARING DATES: 6 May 2009 DATE OF JUDGMENT: 25 May 2009 APPLICANT Mr J Murphy of counsel SEVENTH RESPONDENT (TWU) Mr A Hatcher of counsel LEGAL REPRESENTATIVES: FIFTH RESPONDENT (Mail Call) Solicitor: Duncan Cotterill Mr K Brotherson Australian Industry Group Mr B Ferguson JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Marks J Monday 25 May 2009 Matter No IRC 3303 of 2005 Interim Transport Industry – Courier and Taxi Truck Contract Determination Application for a variation to the Transport Industry Courier and Taxi Truck Contract Determination in relation to commencement of 'safety net' hours. DECISION RE APPLICATION FOR DISQUALIFICATION UNDER S 173 [2009] NSWIRComm 73 1 The applicant in these proceedings, the Courier and Taxi Truck Association, filed an application to vary the Interim Transport Industry – Courier and Taxi Truck Contract Determination on 28 June 2005. The respondents to the application included the Transport Workers' Union of Australia NSW Branch ("the TWU"), Employers First, Australian Business Industrial, and two named courier companies. 2 The Contract Determination that is sought to be varied is described as an "Interim" Contract Determination. I have not been advised why it is so referred to, but it is common between the parties that there is in existence the Transport Industry – Courier and Taxi Truck Contract Determination made by this Commission. The Contract Determination regulates the conditions under which and the remuneration payable for the work of drivers who are engaged as couriers and taxi truck operators whether by the use of any type of motor vehicle up to 4.5 tonnes carrying capacity or by the use of a bicycle. 3 The remuneration of drivers covered by the Contract Determination is set out in Clause 12. This permits the engagement of contract carriers under "incentive systems of remuneration" which is obviously directed to payment according to the number of articles carried and the like. 4 Included within Clause 12 is Clause 12.2 entitled "Safety Net". This provides for the payment of minimum remuneration established by averaging a "daily safety net entitlement" calculated in accordance with Clause 12.2.1.1. over a period of two months, and taking into account certain other matters including exclusive hire arrangements. 5 Clause 12.2.1.1. is entitled "Calculation of Daily Safety Net Hours". At the time of the making of the original Contract Determination the commencement of the calculation of hours of work for each working day was said to be: "After the first job has been allocated and the contract carrier commences to travel in order to pick up the first job of the day" and was said to conclude at the "time of delivery of the final completed contract of carriage on that same day." 6 For completeness, I record that I varied this particular Clause on a consent basis on 28 March 2006 amending the definition of point of commencement of the contract of carriage, making provision for payment of a ten hours minimum engagement for each day worked for the purpose of quantifying the safety net calculation where a principal contractor does not keep remuneration records as required and by amending those records. 7 The application filed on 28 June 2005 sought to vary a definition in the Contract Determination of "Point of commencement of a contract of carriage", the variation of Clause 8.3 which applied where a principal contractor failed to keep appropriate records allowing a safety net entitlement to be calculated and seeking a variation essentially of that part of Clause 12.2 dealing with the calculation of daily safety net hours to provide that the hourly rate would commence from the time of pick up of the first contract of carriage on any one day and end at the time of delivery of the final completed contract of carriage on that same day. After an initial mention, I conducted a compulsory conference on 13 July 2005. During the course of the proceedings that day, it became apparent that for a period of about 18 months the applicant had been seeking to have the existing Contract Determination replaced by a substantially new document and that there were, in addition to concerns about the safety net regime, some additional 12 matters which the parties, or at least some of them, wished to consider. These included matters such as the exclusion of bicycle couriers, part-time as opposed to full-time drivers, advice of availability for work, an alternative system for the payment of drivers, guaranteed minimum rates, occupational health and safety matters, a mechanism to vary rates on a regular basis, availability for on-call, rates for evening and weekend work, superannuation payments and charges by principal contractors for the use of communication equipment supplied by them. 8 The proceedings were stood over to allow further discussions and on 5 September 2005, the applicant filed an amended application which sought, in effect, the making of a comprehensive new Contract Determination. 9 After an initial mention, the amended application was the subject of a compulsory conference on 22 September 2005. A large number of persons attended that conference which extended over some hours and all those attending were given an opportunity of contributing to the discussion about a variety of issues. The safety net issue assumed some significance during the course of the discussions, but other matters were discussed as well. 10 By letter dated 25 November 2005, the applicant sought to withdraw the amended application to allow the proceedings to go forward on the basis of the application initially filed. At a hearing on 2 December 2005, the Commission was advised that "the big package of the amended application is simply too much to take in in one bite size at this point in time." At that stage, hope was expressed that the parties would be able to reach consent agreement on the initial application. 11 At a hearing on 30 January 2006, the applicant's representative made it clear that the applicant was proceeding only on the original application. This was understood by the representatives of the other parties, the then NSW Road Transport Authority and the TWU. The parties were directed to confer to see whether or not agreement could be reached with respect to the application as then constituted and, if not, whether further conciliation would be appropriate. 12 In a decision published on 28 March 2006, I varied the Contract Determination in the manner to which I have previously referred. Having done so, I said: "The next point that the Commission needs to deal with, with respect to these proceedings, is the one matter which will require arbitration. That relates to the creation of a mechanism for the recording of the commencement of work each day." I then fixed a timetable for the filing and serving of witness statements and allocated four days for the arbitration of the matter during September 2006. 13 The parties were unable to meet the timetable fixed for the filing of the evidence but engaged in further discussions with a view to endeavouring to reach agreement. 14 At a hearing on 1 September 2006, the representative of the TWU sought an extension of the timetable but also sought conciliation. This was resisted by the applicant and I stated that "The arbitration process will be utilised unless and until the parties agree that conciliation is more appropriate." 15 Ultimately, the parties were not in a position to proceed and the hearing dates set aside were vacated. At a hearing on 31 January 2007, counsel for the applicant sought the making of a new timetable for the preparation, filing and serving of further evidence and agreement was reached for this to occur. At the conclusion of the timetable, further hearing dates were to be allocated. 16 On 19 October 2007, I arranged on my own initiative for the matter to be listed to ascertain its current status. The applicant's counsel explained that its principal witness, a Mr Taylor, had been prosecuted by the TWU for breaches of the Contract Determination, that I had determined those matters and that it was thought appropriate that he not be required to give evidence in these proceedings before me whilst those matters were outstanding. The matter was stood over with liberty to apply and the parties were informed that the Commission may take action of its own motion if the progress of the proceedings merited this. 17 I conducted a further hearing on 9 May 2008. At that stage, it was apparent that not all of the principal courier companies supported the application being brought by the applicant. The representative of the TWU indicated that he had "inherited the file" at 5 o'clock on 7 May 2008 and that "I did not know the file existed. I have not looked at anything at this stage. So I need to get around what the application is about and confer with the other respondents as to what the consensus position will be." In all the circumstances, the proceedings were stood over for further directions on 13 June 2008. I was advised by counsel for the applicant on that occasion that the only matter in issue was the calculation of the commencement of the quantification of hours for the safety net provision. The matter was set down for arbitration for five days in the week commencing 8 September 2008. The parties were directed to work towards a sensible timetable for the preparation of evidentiary matters. On 3 September 2008, the applicant circulated an amended application which was confined to the calculation of daily safety net hours and which was circulated amongst the parties, some of whom agreed to it and some of whom opposed it. 18 When the matter next came before the Commission on 8 September 2008, the TWU made application that it be struck out on the basis that it was frivolous and vexatious. After hearing submissions, I rejected that application. 19 At the suggestion of some of the parties, I then conducted a further conciliation that day and issued a recommendation. Included within the applicant's proposal, considered within the conciliation conference, was a revision of the wording as to when the safety net hours commence each day as well as a qualification to the effect that if the driver failed to keep a record of the commencement time each day that he or she would not be entitled to have the safety net applied for that day. This is to be contrasted with the position of the TWU, which was to the effect that failure by the driver to complete daily run sheets or notification requirements imposed by the principal contractor: "may lead to disciplinary action". The parties were asked to consider the recommendation and report back on the progress of their deliberations. 20 At a hearing on 18 December 2008, which the Commission called of its own motion, I was advised that there had been "broad agreement" between the parties. The matter was stood over to 17 February 2009. 21 In a letter dated 12 February 2009, the TWU indicated, inter alia, rejection in principle of any condition that would have the effect of disentitling a driver to the payment of a safety net allowance on any day. 22 At a hearing conducted on 17 February 2009, I was advised that some form of consensus had been reached between the parties but that that had evaporated the previous day. There was a suggestion that representatives of some of the parties, and in particular the TWU, may have supported a particular position in principle but that position was always subject to further instructions which were not forthcoming. Having conducted a private conference, I noted the longevity of the matter and allowed a period of 14 days and said that if agreement had not been reached within this period the proceedings would be set down for one day for the purpose of arbitration. 23 By letter dated 27 March 2009, the applicant advised my associate that negotiations had broken down. I issued a certificate of failed conciliation that day. Application for disqualification under s 173. 24 By letter dated 1 April 2009, the TWU asked that I disqualify myself pursuant to s 173(1) of the Industrial Relations Act 1996 ("the Act"). This was resisted by the applicant by letter dated 2 April 2009 and the matter came on for hearing on 6 May 2009. 25 S 173(1) of the Act is in the following terms: 173 Members who may exercise arbitration powers after attempted conciliation (1) The member of the Commission who attempted conciliation of an industrial dispute or other matter is not to exercise arbitration powers in relation to the dispute or matter if a party to the arbitration proceedings objects and requests that a different member of the Commission exercise arbitration powers. Does s 173 apply to these proceedings? 26 The applicant contended that s 173 did not apply to these proceedings, the TWU arguing to the contrary. 27 These proceedings involve an application to vary a Contract Determination. The jurisdiction and power of this Commission to do so is created by s 313 of the Act which is in the following terms: 313 Jurisdiction of Commission with respect to contracts of carriage (1) The Commission may inquire into any matter arising under contracts of carriage and may make a contract determination with respect to remuneration of the carrier, and any condition, under such a contract. (2) In exercising its jurisdiction under this section, the Commission may: (a) include in the remuneration of persons affected by its determination such allowance instead of annual or other holidays, sick leave or long service leave as it thinks fit, or (b) otherwise make provision for all or any of those matters. (3) The Commission may, after inquiry, make a contract determination with respect to the records to be kept by principal contractors in respect of contracts of carriage. 28 Prior to dealing with any application with respect to a contract of carriage, the Commission is required to conduct a conference under s 315 of the Act, which is in the following terms: 315 Conference to precede contract determination (1) When application is made to the Commission to exercise its jurisdiction under this Part, the Commission must, before it considers the application, summon to attend and confer with the Commission the applicant and such other persons served with the application as the Commission may direct. (2) At the conference, the Commission is to: (a) ascertain which of the matters with which the application is concerned are in dispute and which are not, and (b) ascertain whether there are any special circumstances or problems existing with respect to contracts of the class with which the application is concerned, and (c) take all reasonable steps to effect an amicable settlement of any matters in dispute. (3) After conferring on an application, the Commission may: (a) dismiss the application, or (b) proceed to hear the application or specify a time and place at which it will be heard, or (c) adjourn the application for such period or periods as it thinks fit. (4) Before hearing an application, the Commission may require service of the application on such persons as it may direct. 29 S 316 of the Act then makes provision for the making of Contract Determinations. S 316 is in the following terms: 316 Making of contract determinations (1) After hearing an application for it to exercise its jurisdiction under this Part, the Commission may: (a) dismiss the application, or (b) make a contract determination with respect to the application. (2) When the Commission makes a contract determination: (a) it may defer the operation of the determination wholly or in part for such period or periods as it thinks fit, and (b) it must specify the class or classes of contracts in respect of which the determination is to operate (including classes defined by reference to a named bailor or principal contractor). 30 These provisions are contained within Part 2 of Chapter 6 of the Act, which is entitled "Public Vehicles and Carriers". 31 Chapter 6 establishes, in my opinion, a separate regime to deal with contracts of bailment and contracts of carriage. It provides for the binding force of Contract Determinations made by this Commission and contains other provisions dealing with Contract Determinations. There is also, under Part 3, the ability of representative parties to make contract agreements which may be approved by the Commission under s 325 and which creates binding provisions, which are enforceable. 32 Within Part 4 of Chapter 6, there is a provision enabling the Commission to deal with disputes relating to breaches of contracts of bailment and contracts of carriage and other matters. Furthermore, under Part 5 of Chapter 6, there is provision for registration of associations of employing contractors, associations of contract drivers and contract carriers. 33 Part 7 of Chapter 6 makes provision for the awarding of compensation in certain circumstances upon the termination of particular types of contracts of carriage. There is established by s 347 of the Act, which is contained within Part 7, a Contract Of Carriage Tribunal constituted by a Presidential Member of the Commission and, in certain circumstances, two persons nominated in accordance with that section. S 348 of the Act requires a compulsory conference to deal with claims for compensation by way of conciliation in the first instance and makes provision in s 349 for the arbitration of claims. 34 The provisions of s 351, which is contained within Part 7 of Chapter 6, are, in my opinion, significant for the purpose of considering this matter. S 351 is in the following terms: 351 General procedure and powers of Tribunal (1) Part 5 of Chapter 4 (Procedure and powers of Commission) applies to proceedings before the Tribunal in the same way as it applies to proceedings before the Commission other than in Court Session, subject to this Part and to such exceptions and modifications as are prescribed by the regulations. (2) In particular, sections 179 (Finality of decisions) and 182 (Recovery of amounts ordered to be paid other than penalties) apply to decisions of the Tribunal. (3) Rules of the Commission may be made relating to the practice and procedure of (and other matters relating to) the Tribunal. 35 It will be observed that sub-section 1 of s 351 provides that Part 5 of Chapter 4 of the Act applies to proceedings before the Tribunal in the manner therein set out. S 173 is contained within Part 5 of Chapter 4. Accordingly, s 173 is specifically incorporated within the procedures of the Contract Of Carriage Tribunal. 36 The application of s 173 by virtue of the provisions of s 351 should be contrasted with the provisions of s 343 of the Act, which applies particular provisions of the Act for the purposes of Chapter 6. 37 S 343 of the Act is in the following terms: 343 Application of certain provisions for the purposes of this Chapter (1) The following provisions of this Act apply to and for the purposes of this Chapter (the applied provisions): (a) Section 27 (Prohibition on cashing-in of accumulated sick leave), (b) Part 3 of Chapter 2 (National and State decisions), (c) Part 10 of Chapter 2 (Payment of remuneration), (d) Part 3 of Chapter 3 (Common law actions during conciliation of industrial disputes), (e) Section 143 (Strike pay prohibited), (f) Section 172 (Power to order secret ballot), (g) Part 8 of Chapter 4 (Industrial Committees), (h) Part 1 of Chapter 5 (Principles of association), (i) Part 7 of Chapter 5 (Entry and inspection by officers of industrial organisations), (j) Chapter 7 (Enforcement). (2) The applied provisions have effect subject to such modifications as are prescribed by this Part or the regulations. 38 I have already observed that s 173 falls within the provisions of Part 5 of Chapter 4 of the Act. S 343 incorporates within the provisions of Chapter 6 Part 8 of Chapter 4 but does not refer in any way to the provisions of Part 5 of Chapter 4. 39 It is a fundamental rule of construction that where an Act specifically incorporates particular matters and does not refer to other matters, it is intended thereby that matters not specifically referred to are excluded unless there are some indicia to the contrary which may be derived specifically from statutory provisions or by necessary implication. 40 The TWU submitted that there were provisions of the Industrial Relations Act that by necessary implication imported the provisions of s 173 into Chapter 6 of the Act. In this regard it referred to the provisions of Part 3 of Chapter 3, which by s 343(1) are specifically applied to Chapter 6. 41 Part 3 of Chapter 3 applies to certain actions in tort which are described in s 140(1). (Other actions in tort are excluded by s 140(2), but a consideration of these is irrelevant for the purpose of this discussion.) 42 S 140(1) of the Act is in the following terms: 140 Actions in tort to which Part applies (1) This Part applies to an action in tort for an act done or omitted to be done: (a) by an industrial organisation of employees, or (b) by an official or member of any such organisation, in contemplation or furtherance of an industrial dispute in which the Commission has jurisdiction. 43 S 141 provides that actions in tort may not be commenced or continued while the relevant industrial dispute to which they relate is the subject of conciliation by the Commission. S 141 is as follows: 141 Actions in tort while Commission attempting to conciliate dispute not actionable (1) A person may not bring or continue an action in tort to which this Part applies while the industrial dispute to which the action relates is subject to conciliation by the Commission. (2) For the purposes of this section, an industrial dispute is subject to conciliation if: (a) the Commission has been notified under this Chapter of the dispute or has decided on its own initiative to resolve the dispute, and (b) a certificate of attempted conciliation has not been issued by the Commission under this Chapter in respect of the dispute. (3) For the purposes of this section, an industrial dispute is not subject to conciliation if the Commission has decided to dismiss or otherwise discontinue the proceedings concerned. (4) A certificate issued by a member of the Commission as to whether a specified industrial dispute is subject to conciliation by the Commission is admissible in evidence in any proceedings in which this Part is in issue and is evidence of the matters stated in the certificate. 44 The TWU submitted that s 141 can only apply to Chapter 6 if by necessary implication the provisions of the Act dealing with the issue of certificates of conciliation are imported into the conciliation process which applies to Chapter 6. Such provisions would include s 173. 45 I agree that by necessary implication, the provisions of s 135 are imported. S 135 is as follows: 135 Arbitration after attempted conciliation (1) The Commission is to deal with an industrial dispute by arbitration only if it is not resolved by conciliation. (2) Arbitration by the Commission is not to proceed until the Commission has issued a certificate that reasonable attempts have been made to resolve the industrial dispute by conciliation (certificate of attempted conciliation). (3) A certificate of attempted conciliation is to be provided to the President of the Commission unless the Commission is constituted by the President. (4) When determining whether to issue a certificate of attempted conciliation, the Commission must consider the effect that any industrial action in connection with the industrial dispute is having on the parties and the public generally. In particular, the Commission must give urgent consideration to the effect of industrial action in connection with a demarcation dispute. (5) A certificate of attempted conciliation may be issued on the Commission's own initiative or on application by any person authorised to notify the Commission of the industrial dispute. (6) The Commission must, without delay, issue a certificate of attempted conciliation on the application of any such person if the person satisfies the Commission that there is no reasonable likelihood that the dispute will be resolved by conciliation. (7) The Commission must, without delay, issue a certificate of attempted conciliation if the Commission decides that industrial action or duress necessitates the exercise of its arbitral powers. (8) The parties to the proceedings are to be provided with a copy of any certificate of attempted conciliation. (9) Nothing in this Act prevents the exercise of conciliation powers merely because arbitration powers have been exercised under this Act. 46 It will be seen that s 135 requires the issue of a certificate after conciliation and this is what is specifically referred to in s 141(2) and (4). 47 However, the provisions of s 173 create a unique entitlement to disqualify a member of the Commission as opposed to any right to seek disqualification on the basis of apprehended bias. I shall refer to the provisions of s 173 later in these reasons for decision. The right to seek disqualification under s 173 is a matter that, in my opinion, is of a different nature to the requirement to issue a certificate under s 135. Whilst the issue of a certificate under s 135 is necessary to make s 141 work, the right to seek disqualification under s 173 has nothing to do with and falls outside the operation of the provisions of Part 3 of Chapter 3 of the Act. The provisions of Part 3 of Chapter 3 impact upon a right to commence or continue an action in tort that will be taken before a Court, and will not be taken before the Industrial Relations Commission of New South Wales. An action in tort instituted before a Court has nothing to do with the constitution of the Industrial Relations Commission of New South Wales for the purpose of dealing with the arbitration of proceedings before it after the conclusion of the conciliation process conducted by the same member. 48 Accordingly, I disagree that there is a necessary or permissible incorporation of the provisions of s 173 into Chapter 6 by reason of the incorporation of the provisions of s 141 and s 142 into Chapter 6. 49 I can find no other provision of the Act which would allow me to proceed on the basis that notwithstanding the failure to refer to Chapter 4 of Part 5 of the Act within s 343, there was an intention on the part of the legislature that the provisions of s 173 were to be incorporated within and apply to the provisions of Chapter 6 of the Act, other than Part 7 of Chapter 6. 50 Furthermore, the legislature has specifically applied the provisions of Part 5 of Chapter 4 to proceedings under Part 7 of Chapter 6 by reason of the provisions of s 351 of the Act, to which I have previously referred. It must be presumed that the legislature, in specifically applying the provisions of Part 5 of Chapter 4 to Part 7 of Chapter 6 and failing specifically to do so within s 343, has demonstrated that the Act is not to be construed as applying s 173 to proceedings being considered under Chapter 6 of the Act other than Part 7. 51 In so concluding, and in so finding that s 173 does not apply to these proceedings, I am mindful also of the unique nature of the provisions of s 173 which create a statutory right to seek disqualification without demonstration of apprehended bias or any other matter which, at common law, would form the basis of a successful disqualification application. The unique nature of the provisions of s 173 was discussed by McKenna C in Brown v Coca-Cola Amatil (Aust) Pty Ltd (2001) 123 IR 33 at p 44. The "merit" argument 52 The discussion which follows addresses the more substantive submissions made by the parties and is included in these reasons for decision in the event that I may be found to have been incorrect in determining that s 173 does not apply to these proceedings. 53 Mr A Hatcher of counsel, who appeared for the TWU, properly submitted that, on the basis of authority, once the Commission has taken a step in the arbitration proceedings and has clearly concluded the conciliation process, then s 173 does not apply. However, it was submitted on behalf of the TWU that the matter that is to be the subject of arbitration: "is a different subject matter to that which was listed for hearing in 2008. That is, there has been a fundamental change in what this case or what this application is about from one whereby the starting point for the safety net was to be changed to one whereby no change is sought, but there is a fundamental change in keeping records in respect to that matter." In making this submission, Mr Hatcher focussed attention on the applicant's position in its current form which would disentitle a driver to a safety net payment for any day on which the driver had failed to complete certain documentation, the details of which would be required for the calculation of any safety net payment. It was said by the TWU that the application in its current form "is not one which has been the subject of any directions, filing of evidence or hearing." It was said that the subject matter of the application had changed "from moving in question about when the safety net started to a new question as to records to be kept by a contract carrier with respect to the existing starting time." 54 Mr J Murphy of counsel who appeared for the applicant rejected the characterisation of the subject matter of the dispute contended for by the TWU. He submitted that the matter to be determined now was, in effect, the end product of a process which involved conciliation over a long period of time and that what occurred during the course of that conciliation including "further skirmishes and discussions between the parties" crystallised in the application in its present form. It was said that any requirement that a driver notify and record the commencement time of work and any consequences if a driver failed to do so was not fundamentally different from the subject matter of the application as originally filed by the applicant. 55 Mr Hatcher had contended that the matter was so fundamentally different that evidence filed on behalf of the TWU could no longer be relied upon for the purpose of dealing with the arbitration of the outstanding issue. Mr Murphy said that his client was content to rely on the evidence currently filed for the purpose of the arbitration. The provisions of s 173 of the Act 56 S 173 of the Act is in the following terms: 173 Members who may exercise arbitration powers after attempted conciliation (1) The member of the Commission who attempted conciliation of an industrial dispute or other matter is not to exercise arbitration powers in relation to the dispute or matter if a party to the arbitration proceedings objects and requests that a different member of the Commission exercise arbitration powers. (2) A member of the Commission is not, for the purposes of this section, taken to have attempted conciliation merely because: (a) the member attempted conciliation after having begun to exercise arbitration powers, or (b) the member arranged or gave directions for a conference of the parties involved in the industrial dispute or other matter, or their representatives, to be presided over by the member, but the conference did not take place or was not presided over by the member, or (c) the member arranged or gave directions for those parties or their representatives to confer among themselves at a conference at which the member was not present. 57 It will be seen that the provision is directed to circumstances in which conciliation has been attempted of "an industrial dispute or other matter". In determining whether the provision applies or, in the case of the circumstances of these proceedings, whether conciliation had ceased and an arbitration process commenced, it is necessary to refer to the "industrial dispute" or "other matter" with which the Commission was dealing. In practice, there may be difficulties in the identification of the industrial dispute. For example, the ostensible dispute as reflected in a dispute notification form filed with the Commission may not represent in reality the dispute between the parties. Sometimes, in my experience, the "real" dispute between the parties is the presence of a manager and union delegate who are unable to deal with each other in an unemotional and sensible fashion, that is a personality difference. Sometimes, the ostensible dispute is but a manifestation of some other underlying problem such as proposed redundancies. In other cases, an industrial dispute as notified to the Commission may take on other forms or embrace other issues, as was the case with these proceedings. Relevant authorities 58 A number of decided cases were relied upon by the parties in the course of submissions. I do not however find any one of them of particular assistance in the determination of these proceedings, which is concerned with the characterisation of the industrial dispute or other matter being considered by me. 59 In Reid Transport Industry – Quarried Materials Wages (State) Award (1997) 74 IR 296, a Full Bench of the Commission considered the provisions of s 173 in the context of different proceedings, each involving what ought to be the appropriate rate of pay for driving particular types of vehicles in the quarry industry. At 306, the Full Bench referred to the "subject matter" of conciliation proceedings in circumstances, where, as I have observed, there was no controversy as to what it was. 60 Similarly, a Full Bench in Commissioner of Police v Police Association of New South Wales (2005) 141 IR 423 considered extensively the provisions of s 173. The circumstances of those proceedings did not call for any consideration of the characterisation of the subject matter of an industrial dispute or other matter. However, that decision does make it plain that once proceedings have moved from the conciliation phase to the arbitration phase, the provisions of s 173 have no effect. (See the discussion commencing at [22]). The provisions of s 173 are also discussed in a general sense by McKenna C in Brown v Coca-Cola. 61 In my opinion, the resolution of the controversy as to whether or not s 173 applies to these proceedings as contended for by the TWU depends upon a characterisation of the subject matter of the dispute as at the time that conciliation ceased and a characterisation of the dispute as at the time the TWU made its request under s 173. 62 For the purpose of undertaking the characterisation process, I shall ignore the circumstances in which the industrial dispute was widened to include a consideration of the totality of the provisions of the Contract Determination because the applicant withdrew that matter and filed an amended application confined to the safety net provisions. I shall also ignore that part of the dispute which involved the making of the consent variation to the Contract Determination because, obviously, once the variation was made there was no longer any dispute about the subject matter of the variation. 63 In my opinion, the essence of the industrial dispute (ignoring the two matters to which I have referred above) as it existed at the time that the conciliation process ceased concerned the commencement of the period for the calculation of the safety net provisions of the Contract Determination. There was clearly a dispute about when the relevant period would commence. However, the disputation between the parties covered not only the time when the period would commence but also how that time would be recorded whether by means of the principal contractors' own systems or procedures required of the drivers or a combination of the two. In its final form, as it existed at the time that the TWU made its request under s 173, the parties had, as a result of discussions and participation in further conciliation, reached agreement on the time when the safety net period commenced and had also reached agreement about what was required of drivers in terms of record-keeping. The remaining issue for determination was the consequences that would flow if a driver failed to comply with his or her record-keeping obligations. This would obviously impact upon the ability to calculate the commencement of the safety net period. The TWU and some principal contractors contended that the only consequence would be disciplinary action. The applicant contended that a consequence should result in the inability to claim safety net payments for each day upon which the driver failed to comply with his or her record-keeping obligations. 64 The characterisations contended for by the TWU focussed on the one remaining matter in controversy with respect to the safety net provision asserting that this was a different industrial dispute or matter than that which was being considered by the Commission at the time that the conciliation process finished. The applicant contended that this was an unduly narrow approach and that the industrial dispute should be seen as encompassing a controversy about the way in which the safety net provision should operate. In any event, as is clear from the narrative above, there was no agreement about the time of the commencement of the safety net period at the time that the conciliation process had ended and the arbitration phase had commenced. This was still a live issue. 65 In my opinion, it is necessary to look in general terms at the subject matter of the dispute rather than focussing on the minutiae that creates an unduly narrow and unrealistic characterisation of the subject matter of the dispute. At all relevant times, what was in dispute was the way in which the safety net clause should operate. Not only the commencement time, but also the consequential requirement to record details for the purpose of ascertaining when the time commenced, were live issues in a general sense. I would reject the characterisation of the dispute contended for by the TWU, and uphold that contended for by the applicant. 66 In these circumstances, I conclude that the request made under s 173 by the TWU was made at a time after conciliation had concluded and at a time after the arbitration proceedings had been initiated. Conclusion 67 For the reasons previously advanced, the application brought under s 173 of the Act by the TWU must fail and is dismissed. 68 The parties are directed to confer with a view to determining how much time it is anticipated will be taken up with the hearing of the arbitration of the matter. A representative of the applicant is to make contact with my associate within seven days for the purpose of arranging for a suitable date for hearing to be fixed. 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.