Industrial Relations Commission of New South Wales CITATION: State Wage Case 2006 (No. 5) [2006] NSWIRComm 190 APPLICANT Unions New South Wales RESPONDENTS Australian Business Industrial and affiliated associations Australian Industry Group, New South Wales Branch Australian Retailers Association PARTIES: Catholic Commission for Employment Relations Employers First Local Government and Shires Association of New South Wales Minister for Industrial Relations Motor Traders' Association of New South Wales Public Employment Office INTERVENOR Minister for Employment and Workplace Relations (Cth) FILE NUMBER(S): IRC 5778 of 2005 CORAM: Wright J President; Walton J Vice-President; Harrison DP; Boland J; Bishop C; Stanton C CATCHWORDS: State Wage Case - Intervention - Application by Commonwealth Minister for Employment and Workplace Relations to withdraw from proceedings - Application to withdraw granted - Observations by Full Bench regarding Minister's role in the proceedings - Media Release by Minister critical of Full Bench - Consideration given to initiating contempt proceedings - Minister's explanation and expressions of regret accepted - Observations regarding content of Media Release Industrial Relations Act 1996 LEGISLATION CITED: Workplace Relations Act 1996 (Cth) Workplace Relations Amendment (Work Choices) Act 2005 (Cth) Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (No 2), Re (2004) 133 IR 239 Nationwide News Limited v Wills (1992) 177 CLR 1 CASES CITED: State Wage Case 2006 (No 3), Re [2006] NSWIRComm 120 State Wage Case 2006 (No 4), Re [2006] NSWIRComm 160 State Wage Case 2006, Re [2006] NSWIRComm 67 HEARING DATES: 05/06/2006 DATE OF JUDGMENT: 06/07/2006 Mr M Thistlethwaite Unions NSW Mr J V Murphy of counsel Minister for Industrial Relations and Public Employment Office Mr E Leahy Catholic Commission for Employment Relations Mr T McDonald Employers First Australian Retailers Association LEGAL REPRESENTATIVES: Mr T Abrams Printing and Allied Trades Employers Association of New South Wales Mr M Moir Australian Business Industrial Australian Industry Group, New South Wales Branch and affiliated associations Ms D Talbot Local Government and Shires Association of New South Wales INTERVENOR Mr D M Bennett, QC, Commonwealth Solicitor-General with Mr I M Neil of counsel Minister for Employment and Workplace Relations Solicitor: Blake Dawson Waldron JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: Wright J, President Walton J, Vice-President Harrison DP Boland J Bishop C Stanton C Wednesday 7 June 2006 Matter No IRC 5778 of 2005 STATE WAGE CASE 2006 Application by Unions New South Wales for a State Decision - State Wage Case 2006 under s 51 of the Industrial Relations Act 1996 DECISION OF THE COMMISSION [2006] NSWIRComm 190 1 On 5 June 2006, after hearing the parties and the intervenor, we indicated we intended to say more about two matters: a Media Release issued by the Commonwealth Minister for Employment and Workplace Relations, the Honourable Kevin Andrews MP, on 17 May 2006 headed "NSW INDUSTRIAL RELATIONS COMMISSION SHOWS NO INTEREST IN NATIONAL CONSISTENCY AND FAIRNESS"; and, an application by the Minister on 5 June 2006 for leave to withdraw from the proceedings. It was indicated at the time that the Full Bench proposed to grant leave to withdraw but that the application would be the subject of further comment. 2 A copy of the Media Release is annexed to this decision. Before referring to its contents it is necessary to provide some background. In November 2005, Unions NSW made application under s 51 of the Industrial Relations Act 1996 for a "State Decision". The application sought to initiate a State Wage Case in which the applicant, the State peak council for employees, claimed increases of four per cent in wages and allowances in certain awards. 3 In March 2006, the Full Bench considered applications by the Commonwealth Minister and a number of employer interests, to adjourn the application by Unions NSW until the question of adjustments to minimum wages had been dealt with at the federal level by the Australian Fair Pay Commission ("AFPC") and the Australian Industrial Relations Commission sometime later this year or early in 2007. 4 The Full Bench determined that it would not grant the adjournments and made certain directions in relation to the filing and serving of submissions and evidentiary material in anticipation of a substantive hearing commencing on 5 June 2006: Re State Wage Case 2006 [2006] NSWIRComm 67. 5 On 6 April 2006, the Full Bench considered an application by the Commonwealth Minister to intervene in the substantive proceedings: Re State Wage Case 2006 (No 3) [2006] NSWIRComm 120. The application was granted subject to terms as to the extent and nature of that intervention. In this latter respect, the Full Bench required the Commonwealth to specify with greater precision the role it intended to take in the proceedings and to identify, amongst other matters, its position in respect of the claim by Unions New South Wales. 6 On 11 April 2006, the Commonwealth's solicitors advised the President's Associate by letter that: The Commonwealth's position in respect of the claim by Unions' NSW is that it does not support the timing of the claim. At this stage, the Commonwealth does not have a position on the quantum of the claim. 7 In a Statement issued on 17 May 2006 the Full Bench found the Commonwealth's response to be non-responsive to its earlier directions and unacceptable: Re State Wage Case 2006 (No 4) [2006] NSWIRComm 160. The Full Bench stated at [9] and[15]-[16] of its Statement: 9 Further, in these proceedings the Commonwealth is an intervenor with the extent and nature of its intervention yet to be determined. That the Commonwealth in these proceedings is the federal Minister for Employment and Workplace Relations does not attract any special dispensation to exercise a discretion to decline compliance with a direction of this Full Bench. The Commonwealth's failure to comply has implications for any conditions that may be attached to that intervention or for that matter whether leave to intervene should be revoked. ... 15 In summary, we have concluded that the statement of position given by the Commonwealth on 11 April does not comply with our directions of 6 April. That failure has implications for the Commonwealth's application to intervene in these proceedings. What is required is a plain statement of position - one the Commonwealth is well used to providing in various Safety Net Adjustment (and previously National Wage Case) proceedings before the Australian Industrial Relations Commission. Does the Commonwealth agree that a four per cent adjustment to award wages is appropriate or that a nominated higher or lower amount is appropriate or no increase at all is sustainable? Not only are we seeking an indication from the Commonwealth in this respect, but all of the parties opposing the claim will need to be in a position to indicate precisely where they stand on the claim. 16 We have decided to request the Commonwealth, in light of this Statement, to review its decision not to comply with the directions made by this Full Bench on 6 April 2006 and to advise the President's Associate of its position well before the commencement of proceedings on 5 June 2006. In the absence of satisfactory compliance with directions we shall be compelled to review the Commonwealth's application for intervention in these proceedings. 8 The Full Bench also reiterated in its Statement that it did not propose to adjourn or delay any decision it might make in relation to the claim by Unions NSW until either the AFPC or the Australian Industrial Relations Commission had considered the question of minimum wages. 9 The Commonwealth Minister's response to the Full Bench's Statement was his Media Release of 17 May. The Minister was then and, subject to any review of his status as an intervenor, remained an intervenor in these proceedings. 10 On 22 May, the Industrial Registrar wrote to the parties to the State Wage Case proceedings in the following terms: The Full Bench has instructed that I advise all parties who have appeared in these proceedings and the intervenor, the Federal Minister for Employment and Workplace Relations that, at the hearing of this matter on 5 June 2006, The Full Bench will hear any submission by any party as to the Media Release or Statement entitled "NSW Industrial Relations Commission Shows No Interest In National Consistency and Fairness" issued in the name of Hon Kevin Andrews MP, Minister for Employment and Workplace Relations, on 17 May 2006. At that hearing the Intervenor will be requested to make submissions on the content of the press release, a copy of which is attached. 11 A copy of the foregoing correspondence was sent to the Minister's solicitors with a covering letter from the Registrar. The letter stated: As you will note from that correspondence, it will be expected that submissions will be received from the Federal Minister for Employment and Workplace Relations on the issue raised therein. 12 The Full Bench issued the instruction to the Registrar to write to the parties and the Commonwealth Minister because the Media Release had, at least in part, the potential to bring the Commission into disrepute. The Media Release, disregarding the hyperbole, suggested that the New South Wales Industrial Relations Commission had promoted a "heavily adversarial approach to adjusting minimum wages", had misunderstood or ignored the Commonwealth's argument to defer any decision until after the AFPC has made its determination, had departed from the long standing practice of following national wage decisions without good reason and, as we shall later discuss, may be playing politics in relation to the application before it for improvements in wages and conditions. 13 The Full Bench's Statement of 17 May essentially did six things: (1) Reminded the Commonwealth that it was not exempt from complying with the Full Bench's directions. (2) Indicated that the Minister had not complied with one aspect of the Full Bench's directions of 6 April 2006. (3) Reminded the Commonwealth of the reasons why the Full Bench considered it was no longer appropriate, or permissible, in the wake of the WorkChoices legislation and in light of the statute governing this Commission, to delay any proceedings relating to minimum award wage adjustments for workers within the Commission's jurisdiction on the grounds it should wait for a determination by a federal body whose statutory mandate is at odds with that governing this tribunal (there were, of course, other reasons given for the refusal of the adjournment sought by the Commonwealth). (4) Made it clear (for the reasons given) that the Full Bench did not propose to adjourn or delay any decision until after the AFPC had considered the question of minimum wages. (5) Indicated the desirability of the Commonwealth stating its position as directed because the Commonwealth as an Intervenor should provide proper assistance (together with the employer parties) by indicating its position on what was considered to be an appropriate outcome. This could be one practical means by which the Commonwealth could seek to obtain uniform minimum wage adjustment outcomes, notwithstanding any disconformity in the respective industrial systems created by the Work Choices legislation. (6) Indicated that in the absence of satisfactory compliance with its directions the Full Bench would be compelled to review the Commonwealth's application for intervention in the proceedings or take into account this failure in assessing the terms imposed thereon. 14 Given the Commonwealth Minister was an intervenor in these proceedings the comments attributable to him in the Media Release must be considered to have been both ill advised and improper. 15 Were it not for the last paragraph of the press statement, however, we would have more readily dismissed the Media Release, notwithstanding its distorted interpretation of the Statement of 17 May and our earlier interlocutory decisions. Industrial tribunals are not immune from robust - even unfair - criticism, provided it does not descend into the realm of contempt for being malicious, designed to undermine the proper administration of justice or involving some other factor making it contemptuous. A balance has to be struck between the maintenance of the Commission's reputation for fairness, objectivity and integrity on the one hand and the freedom to criticise on the other. In Nationwide News Limited v Wills (1992) 177 CLR 1, Mason CJ, in commenting on the role of the Australian Industrial Relations Commission, observed at 33: As I have said, the Commission is the paramount agency in Australia in preventing and settling industrial disputes and no one could deny that, in the highly charged, contentious world of industrial relations, the reputation of the Commission for integrity, objectivity and fairness is vitally important. Public acceptance of the Commission's determinations is essential to the stability of industrial peace and harmony. But no less important is the interest of the public in ensuring that the Commission and its activities should be open to public scrutiny and criticism. That interest, it seems to me, is just as fundamental in the case of the Commission as it is in the case of the courts and the administration of justice. 16 However, the final paragraph of the Media Release transcended the field of legitimate "public scrutiny and criticism" even in the "highly charged, contentious world of industrial relations" and had, as we have noted, the real potential to bring the Commission, into disrepute. Despite the attempt to cloak the reference with some third party concern about the Commission's process, the inference seemed to us to be clearly available that the Minister was conveying his own view that the Commission might be 'playing politics'. 17 In our view, the inference was reasonably available that the Minister was conveying that either this Full Bench did not conform to the Commonwealth's expressed desire to have one body determine minimum wage adjustments, namely the AFPC, for political motives or, the Full Bench was seeking to have the Commonwealth state its position on wages for political reasons and not for reasons associated with its duty as an independent, quasi-judicial tribunal. On either view serious issues arise, particularly when statements of this kind are made in connection with proceedings to which the maker of the statement is a party or intervenor. 18 There is a further reason why we have taken the step of asking the Minister to explain himself. And that is in the absence of any response on our part to the Media Release, the perception may have been created that by its inaction, or arising from some decision it may make later in the proceedings, this Commission was amenable to intimidation or pressure from the Minister. 19 We had seriously considered having proceedings initiated against the Minister for contempt of the Commission. However, the Commonwealth Solicitor General, Mr D Bennett QC, provided assurances to the effect that there was no intention on the part of the Minister to be disrespectful and hence bring this Full Bench, or any member of it, into disrepute and has sought to distance the Minister from any such inference that might be drawn from the Media Release. Further, we are mindful in a general way of the admonition of Mason CJ in Nationwide News that the "interests of the public in ensuring that the Commission and its activities should be open to public scrutiny and criticism" are "just as fundamental in the case of the Commission as it is in the case of the courts and the administration of justice." 20 We, therefore, consider it sufficient that we accept the assurances that have been given and make a clear statement that we shall, in hearing and determining the application before us, robustly adhere to the rule of law and thereby the precepts of judicial independence and integrity that govern the courts and tribunals in this State. Further, we wish to reiterate in this context what the Full Bench said in response to comments by the then Premier of New South Wales in Re Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (No 2) (2004) 133 IR 239 at [23]-[24]: 23 We would encourage the Federation to look beyond the apparent manoeuvring and to pay regard to what is in the longer term interests of its members and in the public interest, including an adherence to the rule of law by which disputes may be adjudicated in the courts and tribunals of the country without the State assuming any special or favoured place and with the adjudicating process of the courts and tribunals being free of political interference. 24 We wish to make it as plain as we are able that in the performance of our statutory functions we will not be influenced by external pressures whether they emanate from individuals, governments or organisations. We will determine this case, and any other, only on the evidence and submissions before us in accordance with our statutory obligations (emphasis added). 21 The second matter that we find it necessary to pass comment on is the Commonwealth Minister's application to withdraw from the proceedings. On 1 June 2006, solicitors for the Minister wrote to the President's Associate advising that the Minister no longer sought to participate in the proceedings and to the extent intervention had been granted, proposed to withdraw his intervention, by leave if required, when proceedings opened on 5 June. The Minister was heard on his application and subsequently advised that the Full Bench proposed to grant the application for leave to withdraw. As with the Minister's Media Release, we indicated that this matter would also be the subject of this decision. 22 The ostensible reason for the Minister's application was that he was unable to express any position on what might be an appropriate quantum of increase (if any) to flow from these proceedings and he did not propose to pre-empt the AFPC process. Further, the Full Bench had made it clear that it had already determined that it would proceed to hear and determine the application by Unions NSW and would not postpone any such determination. Accordingly, in light of these considerations and the condition imposed by the Full Bench that the Minister should indicate a position on the amount of wage increase, the Minister sought to withdraw. 23 It must be said at once that the Full Bench did not make it a condition of the Minister's intervention that the Minister state his position as to the quantum of any increase. Indeed, Mr Bennett conceded that this was his understanding of the Full Bench's Statement of 17 March. The Full Bench indicated that in the absence of satisfactory compliance with its directions it would be compelled to review the Commonwealth's application for intervention in the proceedings or take into account this failure in assessing the terms imposed thereon. 24 The Minister's purpose in his application of March 2006 seeking intervention in the first place in the substantive proceedings was, inter alia, expressed as follows: The purpose of the Minister's intervention is to tender relevant evidence, including economic and related evidence, and where appropriate to test similar evidence adduced by others so as to assist the NSW IRC in making its determination. 25 In their letter to the President's Associate of 11 April 2006 explaining the role the Minister intended to take in the proceedings, the solicitors for the Minister announced as follows: At this stage, the material on which the Commonwealth proposes to rely on is as follows: · Australian Bureau of Statistics data; · An explanation of minimum wage setting across OECD countries; · The Industrial Relations Act 1996 (NSW); · Decisions of the Industrial Relations Commission of New South Wales; · Any announcements by the Australian Fair Pay Commission (AFPC)... · Relevant parts of the Workplace Relations Act 1996 (Cth) as amended by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth). 26 Additionally, the Minister submitted he should be permitted to cross-examine witnesses in proceedings, in particular, Dr Barry Hughes, a witness called by the applicant. In this respect it was said that, "Mr Hughes' evidence relates to the national and New South Wales' economies, which are matters in which the Commonwealth has a direct interest in view of its responsibility for the overall management of the national economy (of which the New South Wales economy is an important part)." 27 Thus, notwithstanding there was no condition imposed on the Minister to reveal his position on quantum; that the question of postponement of any determination by this Full Bench until after the AFPC had announced its decision had already been fully canvassed in argument before us and determined against the Minister's submissions more than two months ago; and, that the Minister had important submissions to put in the substantive proceedings regarding the state of the New South Wales and national economies, the Minister decided he no longer wished to participate in the proceedings. 28 That an intervenor might change its mind for good reason about the need to participate in proceedings is unexceptional. That the intervenor puts forward reasons for withdrawing that are at odds with the factual position and an earlier stated desire to provide valuable assistance to the tribunal, inevitably raises questions about the intervenor's motives. 29 We wish to make known our concern about the disruption the Minister has caused to these proceedings for no good purpose. It has been necessary to convene this Full Bench on two occasions to hear interlocutory applications by the Minister, first to intervene for the purpose of making submissions to delay the proceedings and, second to intervene in the substantive proceedings to undertake a role that avowed valuable assistance to the Commission. Then before any decision is made regarding the intervention or the terms upon which intervention might be granted, the Minister withdrew for reasons that were completely unconvincing. 30 We confirm that leave is granted to the Minister to withdraw from the proceedings. It follows that whilst the Commission will need to consider the important economic issues that the Minister said he had intended to address, the Minister will now make no contribution to the determination of those issues. 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.