Industrial Relations Commission of New South Wales CITATION: Coal Industry (Long Service Leave) Award 2006 [2007] NSWIRComm 134 APPLICANT: Construction, Forestry, Mining and Energy Union (New South Wales branch) RESPONDENTS: PARTIES: Endeavour Coal Pty Ltd and others Association of Professional Engineers, Scientists and Managers, Australia INTERVENORS: Australian Industry Group Australian Federation of Employers and Industries FILE NUMBER(S): IRC 2785 of 2006 CORAM: Walton J Vice-President CATCHWORDS: Award applicaton - long service leave - resumption after declaratory proceedings - appeal to Federal Court - adjournment application - public interest considerations - displacement public interest considerations due to nature of proceedings - potential challenge re s17 Workplace Relations Act - counterveiling factors - avoidance of splitting jurisdictional issues - limitation on reservation of issues by respondents - adjournment granted on terms Coal Mining Industry (Long Service Leave Funding) Act 1992 (Cth) LEGISLATION CITED: Industrial Relations Act 1996 Workplace Relations Act 1996 CASES CITED: Endeavour Coal Pty Limited and others v Construction, Forestry, Mining and Energy Union (New South Wales Branch) [2007] NSWIRComm 70 Re Notification by Construction, Forestry, Mining and Energy Union (NSW Branch) of a dispute with Newcrest Mining Limited (2005) 139 IR 78 HEARING DATES: 18 May 2007 DATE OF JUDGMENT: 31 May 2007 APPLICANT: Mr A Bukarica CFMEU RESPONDENTS: Mr A Longland Freehills LEGAL REPRESENTATIVES: Ms K Rooke Association of Professional Engineers, Scientists and Managers Australia INTERVENORS: Ms V Paul Australian Industry Group Ms P Brunner Australian Federation of Employers and Industries JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Walton J, Vice-President Thursday 31 May 2007 Matter No IRC 2785 of 2006 COAL INDUSTRY (LONG SERVICE LEAVE) AWARD 2006 Application by Construction, Forestry, Mining and Energy Union (New South Wales Branch) for a new Award DECISION OF THE COMMISSION NSWIRComm 134 1 On 20 July 2006, the Construction, Forestry, Mining and Energy Union (New South Wales Branch) made an application pursuant to s11 of the Industrial Relations Act 1996 for a new award to be known as the Coal Industry (Long Service Leave) Award 2006. Leave was given to amend that application in proceedings before the Commission on 18 May 2007. 2 The proposed State Award is intended to apply to employers of 'eligible employees' as that expression is defined in s4 of the Coal Mining Industry (Long Service Leave Funding) Act 1992 (Cth). The proposed award provides for long service leave entitlements to employees in the coal mining industry in New South Wales in terms which are broadly equivalent to those found in an award made under the Workplace Relations Act 1996 which is known as the Coal Mining Industry (Production and Engineering) Consolidated Award 1997. It should be noted that similar long service leave entitlements are also provided under various agreements also made under the Workplace Relations Act 1996. 3 The application was adjourned in order to enable 16 corporations in the coal mining industry ('the respondents'), for which Mr Longland, solicitor, appears, to bring an application for declaratory relief pursuant to s154 of the Industrial Relations Act 1996 challenging the jurisdiction of the Commission to hear the application. Those proceedings came before the Full Bench of the Industrial Court, proceeded upon the basis of agreed facts (which are now exhibited in these proceedings) and resulted in a judgment of the Court given on 5 April 2007 (Endeavour Coal Pty Limited and others v Construction, Forestry, Mining and Energy Union (New South Wales Branch) [2007] NSWIRComm 70) in which the application for declaratory relief was dismissed. 4 The respondents had sought to challenge the jurisdiction of the Commission by reliance on s16 of the Workplace Relations Act 1996 and s109 of the Australian Constitution. Those challenges are described in paras [1] to [5] of the judgment of the Court. I do not repeat the matters there discussed, except to note what the Court observed at paras [4] and [5] of the judgment the following limitations as to the scope of the matters under consideration: 4 We note that the amended declarations have a broader ambit than may be comprehended by the aforementioned issue, however, Mr G Hatcher SC, who appeared for the applicants, accepted that that part of the amended declarations which, in effect, concerned whether s17 of the WR Act operated to exclude the proposed award, if made, from applying to the applicants would more appropriately be addressed as part of any proceedings relating to the making of the proposed award. We have approached the resolution of the application on this basis and, therefore, we shall resolve the application for the declarations in terms of the jurisdictional issue stated above, leaving open for later consideration the balance of the questions potentially raised by the application. 5 There was also a residue of an argument in the applicants' written submissions that the Commission's award making power might be excluded by s16(1) by virtue of s109 of the Constitution, irrespective of the operation of ss 16(2)(c) and (3)(f). The argument was not developed in oral argument before us and for reasons we shall give, it is without proper foundation and we reject it. (emphasis added). 5 Upon these proceedings being resumed after publication of the judgment of the Industrial Court, the respondents advised that they had filed a Notice of Appeal in the Federal Court of Australia appealing the decision of the Industrial Court pursuant to s853 of the Workplace Relations Act. They sought that these proceedings be adjourned or, in the alternative, stayed pending judgment of the Federal Court in that matter. That application was resisted by the applicant. This decision concerns that application. 6 It is not my intention to set out in this decision the reasonably substantial submissions advanced by the parties both orally and in writing in relation to the respondents' procedural application which, in my view, is best described as an adjournment application. The essential elements of the parties' cases are referred to in the disposition of the application below. 7 In my view, the respondents have made out a sufficient basis for the adjournment of the proceedings, save for one consideration. That matter concerns the issue expressly reserved by the Industrial Court for consideration in these proceedings as to the operation of s17 of the Workplace Relations Act (described in paragraphs [4] and [5] of the Industrial Court judgment). This assumes relevance because at least during the early phase of the hearing of the adjournment application the respondents seemed to be suggesting that the s17 issue may be dealt with in the appeal before the Federal Court or could be raised by that Court in those proceedings (irrespective of the view of the respondents). I propose to briefly set out the considerations in favour of the application for an adjournment before turning to that matter. 8 In Re Notification by Construction, Forestry, Mining and Energy Union (NSW Branch) of a dispute with Newcrest Mining Limited (2005) 139 IR 78 the Commission described the public interest considerations which might warrant the refusal of an adjournment or stay application, even where proceedings are brought challenging the jurisdiction of the Commission by way of prerogative relief or appeal against a decision of the Commission. Whilst that decision essentially concerned industrial dispute proceedings, the reasons given in that decision as to the proper procedure to adopt in such circumstances will ordinarily be apposite in proceedings concerning an award application under s11 of the Industrial Relations Act, unless there are particular aspects of the award proceedings which might warrant some different conclusion. 9 In my view, and again subject to the considerations arising in relation to s17 of the Workplace Relations Act, there are sufficient reasons in the present matter to warrant balancing or displacing those public interest considerations and they connect squarely to the nature of the application made. I consider that Mr Longland is correct in submitting that the aforementioned public interest considerations are substantially diluted in this matter by virtue of the fact that the application concerns long service leave entitlements which in many cases are unlikely to accrue for a considerable period of time or which will not be adversely affected by the time likely to be occupied in the completion of the Federal Court appeal (which is listed in August this year). I have further had regard, in this respect, to the fact that the respondents have indicated that records will be kept of employees' potential long service leave entitlements in consequence substantially of the operation of the Coal Mining Industry (Long Service Leave Funding) Act 1992. That Act establishes a long service leave funding scheme administered by the Coal Mining Industry (Long Service Leave Funding) Corporation which keeps records of employees' long service leave. All of these matters also point to the granting of the adjournment application based on considerations of convenience. 10 The reserved question relating to s17 of the Workplace Relation Act raises additional considerations possibly pointing in the opposite direction. If it were contended by the respondents that the provisions of s17 of the Workplace Relations Act (in conjunction with s109 of the Australian Constitution) would have the effect, as a matter of jurisdiction of removing the capacity of the Commission to make the proposed award rather than constituting a matter going to the Commission's discretion to make an award, then questions would arise as to whether the proper administration of justice would be served by having only part of the potential jurisdictional matters arising in the case heard on appeal. I refer to this because the concession by the respondents' senior counsel before the Industrial Court that the s17 issue should be addressed as part of the proceedings before the Commission relating to the making of the proposed award seems consistent only with the latter and not the former approach. In my view, it would be plainly inappropriate and unproductive to split the determination of the jurisdictional issues by allowing for the possibility of a further appeal to the Federal Court if the challenge under s16 of the Workplace Relations Act was unsuccessful and some further challenge were mounted by the respondents if they were unsuccessful in making out their contentions under s17 of that Act. In these circumstances, there would be some doubt whether the Commission should adjourn these proceedings in so far as they concern any further jurisdictional issue, or, alternatively, whether the proceedings should be re-listed before the Industrial Court so as to resolve those issues in advance of any hearing of an appeal to the Federal Court. 11 The further submissions of the parties filed on 23 and 25 May respectively would seem to suggest, however, that this issue will not arise. The submissions of the respondents would seem to contemplate that, in the event that the present appeal before the Federal Court were unsuccessful, then issues concerning s17 of the Workplace Relations Act would be dealt with by the Commission as part of the discretionary considerations in the current proceedings. Further, the applicant has submitted that s17 of the Workplace Relations Act does not prevent the Commission from making an award or order, even though existing Federal instruments may have an impact upon the operation of the award. 12 In those circumstances, there does not seem to be any proper basis for refusing the adjournment application having regard to the extant issues arising under s16 of the Workplace Relations Act. The Commission proposes to thereby adjourn the proceedings until the appeal decision of the Federal Court of Australia is published. At that point it will be for the applicant to notify the Commission of the outcome of the proceedings and to make a submission as to the further disposition of the proceedings in that light (which may include an application to have the matter re-listed). 13 In the event that the respondents wish to advance the argument that s17 of the Workplace Relations Act removes, as a matter of jurisdiction, the Commission's power to make the proposed award, then they should provide notice of that fact in writing by 4 pm Monday 4 June 2007. If that notice is provided, the matter will be listed for directions either before the Full Bench of the Industrial Court or the Commission, as may be appropriate, to deal with that matter. 14 The matter is adjourned until the publication of the judgment of the Federal Court in the aforementioned appeal, subject to any notice received from the respondents in accordance with this decision. 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