Industrial Relations Commission of New South Wales CITATION: Lata & Ors v The Hammond Group [2006] NSWIRComm 136 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANTS Jasmin Lata Millie Rodriguez PARTIES: Vijay Khan RESPONDENT The Hammond Care Group FILE NUMBER(S): IRC 6118, 6119 and 6120 of 2005 CORAM: Staff J Practice and procedure - Unfair dismissal application - Objection pursuant to s 173 of Industrial Relations Act 1996 - Whether time has passed to exercise rights under s 173 - Whether proceedings moved into arbitration phase - Waiver - Too late to raise objection under s 173 - Practice direction 17 CATCHWORDS: Unfair dismissal application - Objection pursuant to s 173 of Industrial Relations Act 1996 - Whether time has passed to exercise rights under s 173 - Whether proceedings moved into arbitration phase - Waiver - Too late to raise objection under s 173 - Practice direction 17 LEGISLATION CITED: Industrial Relations Act 1996 Commissioner of Police and Police Association of New South Wales [2005] NSWIRComm 132 CASES CITED: Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited (2001) 121 IR 122 Sydney Water Corporation and Australian Services Union (New South Wales and Australian Capital Territory Branch) [2005] NSWIRComm 305 HEARING DATES: 19/04/2006 EXTEMPORE JUDGMENT DATE: 04/19/2006 APPLICANT Ms J Moffitt New South Wales Nurses Association LEGAL REPRESENTATIVES: RESPONDENT Solicitor: Mr R Pegg Toomey Pegg Drevikovsky JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Staff J 19 April 2006 Matter Nos IRC 6118 of 2005, 6119 of 2005 and 6120 of 2005 JASMIN LATA & ORS v THE HAMMOND CARE GROUP Applications pursuant to s 84 of the Industrial Relations Act 1996 re unfair dismissal EX TEMPORE DECISION [2006[ NSWIRComm 136 1 These matters, being applications pursuant to s 84 of the Industrial Relations Act 1996 ("the Act") have been referred to me pursuant to Practice Direction 17 to consider an objection by the applicants pursuant to s 173 of the Act to these matters being arbitrated by Commissioner McLeay. 2 There is a fourth matter, IRC 6117 of 2005, which is also an application for relief from unfair dismissal. The applicant in that matter does not seek to rely upon s 173 of the Act. 3 The relevant background to these matters is that on 20 December 2005, Commissioner McLeay chaired a conciliation of the parties. No agreement was reached and the Commissioner made directions for the filing and serving of witness statements. 4 The matters were subsequently listed for call-over before the Industrial Registrar for the purpose of allocating hearing dates. At that call-over, the New South Wales Nurses Association represented Ms M Rodriguez, the applicant in IRC 6119 of 2005. 5 It was common ground that at the call-over the Industrial Registrar enquired whether any applicant had an objection under s 173 of the Act to Commissioner McLeay arbitrating these matters. 6 The New South Wales Nurses Association took no objection in respect of Ms Rodriguez' matter. 7 Hearing dates were fixed for 27, 28, 29 and 30 June 2006. 8 On 14 March 2006, the New South Wales Nurses Association filed notices of appearance on behalf of Ms Lata and Khan (IRC 6118 of 2005 and IRC 6120 of 2005). 9 On 30 March 2006, the New South Wales Nurses Association wrote to the Industrial Registrar notifying an objection under s 173 of the Act to the matters being arbitrated by Commissioner McLeay. 10 I listed the matter to hear the application on 10 April 2006. At the outset of that hearing, I drew to the attention of the parties, the following decisions of Full Benches of this Commission: Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited (2001) 121 IR 122; Commissioner of Police and Police Association of New South Wales [2005] NSWIRComm 132 and Sydney Water Corporation and Australian Services Union (New South Wales and Australian Capital Territory Branch) [2005] NSWIRComm 305. 11 Each of these decisions considered s 173 of the Act. 12 Ms J Moffitt, who appeared for the applicants, sought an adjournment to consider the above authorities. 13 I directed that the applicants file and serve an outline of their submissions in respect of this application and gave leave to the respondent to file any submissions in reply. 14 The New South Wales Nurses Association contends that the decision of the Full Bench in Commissioner of Police and Police Association of New South Wales does not identify exactly when the "arbitration phase" is considered to have commenced. It is submitted that the facts considered in Commissioner of Police and Police Association of New South Wales are different to this matter in that Boland J had clearly exercised substantive arbitral powers to hear and determine a part of the application when the purported application under s 173 was made. 15 It was further submitted that whatever the exact point at which an automatic right to make a s 173 application expires, it is clear that the Commission has a residual discretion to make an order referring the matter for hearing to a member of the Commission who did not participate in the conciliation. In this regard, reliance was placed on Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited at 123 - 124. 16 As a matter of discretion, it was submitted the following matter should be taken into account: (i) the respondent has not expressed a strong preference and has in substance submitted to the decision of the Commission; (ii) there are strong policy reasons for avoiding a situation where a member of the Commission who has conciliated a proceeding also arbitrates that proceeding; (iii) where a party expresses a strong preference that a member of the Commission who has conciliated a proceeding should not arbitrate, then it is strongly preferable in the interests of justice that the member in question not arbitrate; (iv) although this contention was not ultimately pressed, it was submitted that the effect of Practice Direction 17 was that generally a matter will not be heard by a member of the Commission who has already had involvement in the conciliation of that matter. 17 Mr R Pegg, solicitor, appeared for the Hammond Care Group ("the respondent"). It's position is that it would submit to the decision of the Commission. The respondent has no objection to all of the applications being heard by Commissioner McLeay. 18 In respect of the contention regarding Practice Direction 17, Mr Pegg submitted that there were no grounds available to make out that contention. 19 The issue for determination is whether the time has passed for the applicants to exercise their rights under s 173 of the Act. 20 Section 173 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. 21 As referred to earlier in these reasons, this section has been considered in a number of matters by Full Benches of this commission. 22 The most recent consideration of s 173 was in Sydney Water Corporation and Australian Services Union where the Full Bench stated at [20]: Rights conferred by s 173 must be exercised before arbitration commences: see the recent decision of the Full Bench in Commissioner of Police and Police Association of New South Wales [2005] NSWIRComm 132 at [17] - [30]). It was too late for Sydney Water to raise an objection under s 173. 23 When the matter came before the Industrial Registrar for the fixing of hearing dates on 21 February 2006, the Industrial Registrar raised whether any party sought to rely on s 173. No applicant took an objection at that time. Hearing dates were then fixed. In my view, from this point, the matter moved into the arbitration phase. 24 Furthermore, the directions made by the Commission required the respondent to file and serve its evidence on or before 10 February 2006. This direction was complied with by the respondents. 25 The applicants were required to file and serve any evidence upon which they sought to rely on or before 31 March 2006. This direction was also observed. 26 This is a further indication that arbitration has commenced. 27 In the event that I am wrong in this regard, there is a further basis against the applicants being able to raise an objection under s 173 of the Act at this time. In my view, any right that the applicants had in respect of an objection under s 173 was waived after the Industrial Registrar raised s 173 with the parties on 21 February 2006. 28 Although Ms Moffitt no longer presses the contention in respect of Practice Direction 17, a proper reading of that Practice Direction does not provide that a member of the Commission who has had involvement in the conciliation of the matter is precluded from arbitrating that matter. 29 For these reasons, it is too late for the applicants to raise an objection under s 173 of the Act. 30 An agreement was reached between the parties that the timetable for the filing of the respondent's evidence in reply be amended to provide that the respondent file and serve any evidence that it seeks to rely upon, on or before 4.00 pm on Friday 5 May 2006. The timetable is accordingly varied. 31 I confirm that the matter will proceed as currently listed for hearing before Commissioner McLeay on 27, 28, 29 and 30 June 2006. AMENDMENTS HISTORY: 13/06/2006 - - 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.