Industrial Relations Commission of New South Wales CITATION: Linfox Australia Pty Limited v. Transport Workers' Union of New South Wales [2008] NSWIRComm 1004 APPLICANT Transport Workers' Union of New South Wales PARTIES: RESPONDENT Linfox Australia Pty Limited FILE NUMBER(S): IRC 2034 of 2007 CORAM: Connor C CATCHWORDS: termination of employment - claim of unfair dismissal - application for interim relief sought - jurisdiction - application rejected LEGISLATION CITED: Industrial Relations Act 1996 Federal Workplace Relations Amendment (Work Choices) Act 2005 Bon McArthur Pty Limited Dispute Case - unreported Australian Workers Union v. Australian Steel Mill Services Pty (No.2) [2003] NSWIRComm 1017 Castlemaine Toohey Limited v. State of South Australia (1986) 161 CLR 148 Jovanovski v. BlueScope Steel (AIS) Pty Limited [2007] NSWIRComm 1019 CASES CITED: Nestoroski v. BlueScope Steel (AIS) Pty Limited [2006] NSWIRComm 1140 Penrith Quarry Case - unreported Roberts v. Mona Vale District Hospital (1975) 2 NSWLR 132 State of New South Wales v. Commonwealth of Australia (2006) 156 IR 1 Woolstar Pty Limited v. Federated Storemen and Packers' Union of Australia (1992) 45 IR 39 HEARING DATES: 11/01/2008 DATE OF JUDGMENT: 17 January 2008 APPLICANT Oshie Fagir Transport Workers' Union of New South Wales LEGAL REPRESENTATIVES: RESPONDENT Laurie D'Apice Linfox Australia Pty Limited DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Thursday, 17 January, 2008 Matter No IRC 2034 of 2007 Linfox Australia Pty Limited and the Transport Workers' Union of New South Wales Notification under S.130 of the Industrial Relations Act re dismissal of employee INTERIM DECISION [2008] NSWIRComm 1004 Background 1 These proceedings on Friday, 11 January, 2008 arise out of a notification of an industrial dispute under S.130 of the 1996 Industrial Relations Act between the Transport Workers' Union of New South Wales and Linfox Australia Pty Limited. At issue is the termination of the employment of Mr Chris Akers, a driver of B-double trucks employed by Linfox and a member of the TWU. Mr Akers has been accused of abusing a security officer employed by a Linfox client (Sanitarium), an allegation which he denies, but which Linfox claims has resulted in his being banned from performing work under that contract by Sanitarium. Also Linfox assert that Mr Akers took his prime mover home during working hours, which Linfox claims constituted misconduct on his part but which he asserted has been standard practice. 2 Linfox claim that it has no other comparable work available to Mr Akers in the region in which he is employed (Wyong). It may have such work in the Sydney metropolitan area which would be unsuitable to Mr Akers and it has not offered it to him. But Linfox asserts that the Sanitarium contract is the only work it has available in the Wyong area at the present time. 3 There is already a complicated history to this matter which I set out as follows: * Linfox, apparently concerned over the threat of industrial action by its drivers over the dismissal of Mr Akers lodged a S.130 notification and the matter was allocated to me. I set it down for a conference on Wednesday, 7 November, 2007. * Conciliation failed to settle the matter. I issued the certificate of attempted conciliation required by S.135, lodging it in the prescribed manner, anticipating that further conciliation may not assist with this matter but scheduling the matter for further conciliation on Thursday, 29 November, 2007. Bearing in mind that Mr Akers was effectively banned from working on the Sanitarium contract, I directed Linfox to explore the prospect of Mr Akers working on some other contract. In the meantime, Linfox was prepared that whilst Mr Akers did not attend work, he remained on the payroll. * Further conciliation on Thursday, 29 November, 2007 failed to settle the claim. Linfox was not able to find any work for Mr Akers in the area in which he was employed. I formed the view that the matter should go forward for arbitration. Mr D'Apice who represented Linfox the proceedings, indicated that Linfox was no longer prepared to retain Mr Akers on the payroll until the matter was concluded by arbitration. Mr Akers' services were terminated effective from Friday, 30 November, 2007. I adjourned the proceedings for a further mention on Friday, 14 December, 2007 to permit the parties to consider their respective positions over the matter. * In the proceedings on Friday, 14 December, 2007 Mr Fagir , representing the TWU in the proceedings, informed me that it intended to pursue two further claims on behalf of Mr Akers: (i) an application under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] and (ii) a claim that Mr Akers be reinstated in employment until that Part 6 application was determined. Mr D'Apice expressed no objection to the Part 6 application going forward to arbitration but he rejected any claim for Mr Akers' reinstatement until the Part 6 matter was determined. * On Wednesday, 12 December, 2007 the TWU lodged its Part 6 application, seeking Mr Aker's reinstatement or, alternatively, monetary compensation in lieu thereof. That matter was allocated to me and it came before me for mention on Wednesday, 19 December, 2007 (together with the original S.130 notification by Linfox which it was convenient to deal with at the same time). I programmed the matter for arbitration on Thursday, 21 February, 2008, making directions for the filing of evidentiary material in the customary manner, consistent with Practice Direction No.17. The TWU was to file and serve its evidentiary material no later than Thursday, 7 January, 2008, Linfox was to respond with its evidentiary material no later than Thursday, 7 February, 2008 and anything in reply from the TWU was to be provided by Thursday, 14 February, 2008. I scheduled the matter for a hearing on Thursday, 21 February, 2008. * The TWU lodged an application for dispute orders under the original S.130 notification [S.137(1)(b)]. The TWU sought by those dispute orders to retain Mr Akers in employment with Linfox until the matter is determined in the subsequent arbitration of the Part 6 matter. Mr Fagir has argued that there is a prima facie case that Mr Akers has been unfairly dismissed. That is the matter which came before me for determination on Thursday, 20 December, 2007 but I adjourned the hearing at the request of the TWU, and with the concurrence of Linfox, until Friday, 11 January, 2008. * On Wednesday, 9 January, 2008 the TWU lodged a statement by Mr Akers outlining his version of the incident giving rise to his dismissal. I take it that Mr Akers' statement is a response to my directions with respect to hearing of the Part 6 application for Mr Akers on Thursday, 21 February, 2008 but Mr Fagir has sought to rely on it in the S.137(1)(b) hearing on Friday, 11 January, 2008 to establish the prima facie case that Mr Akers has been unfairly dismissed. Mr D'Apice contests much of what is contained in that statement by Mr Akers but has not had time to properly respond to it (and, in compliance with my directions, does not have to do so until Thursday, 7 February, 2008). Jurisdiction 4 Linfox is, of course, a trading corporation within the meaning of S.51(xx) of the Commonwealth Constitution and, as such, is currently bound under the 2005 Federal Workplace Relations Amendment (Work Choices) Act. The State unfair dismissal regime is therefore excluded for it [State of New South Wales v. Commonwealth of Australia (2006) 156 IR 1]. But, alternatively, pursuant to a 2006 amendment to the State IR Act a member of the State Commission may be empowered to exercise any functions conferred upon that member by the parties to a dispute if such a matter is referred to that member under a common law collective agreement. In particular, S.146A(2) of the State IR Act provides as follows: "A party to a dispute to which this section applies may apply to the Commission for the exercise by the Commission of such functions with respect to the resolution of the dispute as may be specified in the referral agreement." 5 The TWU and Linfox have completed a referral agreement in accordance with S.146A (and Practice Direction No. 18) which provides me with jurisdiction to conciliate and, if necessary, arbitrate any claim arising out of Mr Akers' dismissal. The jurisdiction for me to arbitrate the TWU claim on behalf of Mr Akers in this hearing is therefore now dependent upon the S.146A referral agreement which has been completed by Linfox and the TWU. 6 An initial issue is whether the dismissal of an employee is an industrial dispute in that respect. Ordinarily, claims of unfair dismissal are heard in the State Commission under Part 6 of the State IR Act - as will the substantive issue in this case. But as I pointed out in my unreported decision of Wednesday, 11 April, 2007 in Jovanovski v. BlueScope Steel (AIS) Pty Limited [Matter Nos. IRC 2430 and 3487 of 2007 at p.4]: "...formerly, under the 1940 Industrial Arbitration Act, unfair dismissal claims could only be heard as part of the industrial dispute resolution procedure before the Commission [S.25A], ie they were heard as industrial disputes and individual employees unrepresented by a trade union were therefore excluded from the jurisdiction [ Roberts v. Mona Vale District Hospital (1975) 2 NSWLR 132]. By an amendment to the 1940 Act in 1991 (and subsequently under the 1991 Industrial Relations Act and the 1996 Act which replaced it), individual access by dismissed employees became permissible and unfair dismissal claims were heard as a separate code of jurisdiction - now contained in Part 6 [ Woolstar Pty Limited v. Federated Storemen and Packers' Union of Australia (1992) 45 IR 39 at p.49]. But, whilst an unfair dismissal - essentially a dispute between an individual dismissed employee and his employer - is clearly an industrial matter [S.6(2)(e)], as I indicated in my unreported decision of Wednesday, 27 September, 2006 in Nestoroski v. BlueScope Steel (AIS) Pty Limited [Matter No.IRC 2929 of 2006 at pp.2 and 3], to my mind it lacks the necessary ingredient to make it an industrial dispute which ordinarily denotes a number of employees acting collectively through their trade union. That must mean that Part 6 applications per se are not industrial disputes and, to my mind, are not therefore something which, on their own, can be covered by a S.146A(2) referral agreement..." What does give the current matter before me the character of an industrial dispute is the involvement of the TWU and the notification of the matter under S.130 as a dispute with the perceived potential to lead to industrial action by the Linfox drivers. 7 That having been said, pursuant to S.137(1)(b) I have jurisdiction in compulsory conference proceedings arising from a S.130 notification to make a dispute order to: "…reinstate or re-employ any one or more employees who were dismissed in the course of the industrial dispute or whose dismissal resulted in the industrial dispute…" 8 It therefore remains open to any trade union competent to lodge a S.130 notification to pursue the remedies of reinstatement or re-employment for an unfairly dismissed member by way of a dispute order under S.137(1)(b) - an alternate remedy to that set out in Part 6. However, there are still some limitations on S.137(1)(b) which do not occur in Part 6. In my unreported decision of Tuesday, 17 September, 1996 in the Penrith Quarry Case [Matter No. IRC 5118 of 1996] I pointed out (at pp.2 and 3) that: "…it would seem to me to still be preferable in the majority of cases of this nature for the matter to proceed under Part 6. For one thing, the remedies of remuneration for compensation for lost wages between the date of the dismissal and the date of reinstatement or re-employment [S.89(3)] or monetary compensation in lieu of reinstatement or re-employment [S.89(5)] under Part 6 would not appear to be available by way of a dispute order under S.137(1)(b)…" In the arbitration phase of any S.130 compulsory conference proceedings, ie upon the issuing of the certificate of attempted conciliation required by S.135 and its lodgement in the prescribed manner, it is open to me to make the dispute order sought by Mr Fagir by virtue of S.137(1)(b). The Dispute 9 What the TWU is seeking with its application under S.137(1)(b) is of an interim nature only. That Mr Akers' employment with Linfox be preserved pending the outcome of the hearing of this matter on Thursday, 21 February, 2008. The general principles for such cases were summarised by Mason ACJ of the High Court in Castlemaine Toohey Limited v. State of South Australia (1986) 161 CLR 148 at p.153, viz: "…The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction…" 10 Mr Fagir argues that Mr Akers has a strong prima facie case that, in fact, he did not abuse the representative of the Linfox client as alleged against him and that, as far as taking the prime mover home during working hours, it has been common practice in the past amongst Linfox drivers, sanctioned by Linfox management, to take their trucks home as required. Mr Fagir claims that Mr Akers will suffer irreparable damage if he is not reinstated. In its application for dispute orders, the TWU comments that: "...Mr Akers has a substantial mortgage and relied on his income, including overtime, to meet the payments on his mortgage. The possible irreversible consequences of Mr Akers' inability to make his mortgage repayments are obvious. Further, as a result of the financial stress caused by Mr Akers' suspension and termination, his wife has been forced to work excessive hours. Mr Akers will give evidence that those excessive hours have created a risk to her health. This is significant both in that it reinforces the magnitude of the financial difficulties caused by Mr Akers' termination and also in that it demonstrates the significant and potentially irreparable harm which will follow should Mr Akers not be reinstated..." 11 It was initially my understanding that Mr Akers has found alternate employment but that employment did not provide him with an income to the level that he formerly enjoyed while he worked for Linfox. However, Mr Akers, who was called to give evidence in this hearing on Friday, 11 January, 2008 by Mr Fagir, confirmed that he has not been employed since his services were terminated. Nor, he conceded, has he attempted to find such alternate employment. Mr D'Apice claimed in his submissions that it is his belief that Mr Akers has found alternate employment. That is an issue which must at present remain unresolved until the hearing of the substantive issue in the Part 6 application on Thursday, 21 February, 2008. Conclusion 12 Whilst Mr Fagir has submitted that Mr Akers has a strong prima facie case that he has been unfairly dismissal, in view of the fact that so much of the assertions made by Mr Akers are contested by Linfox, I do not believe that I may, at this stage, rely with any confidence on them. Nor do I believe that it is appropriate for me to base any decision I make in this matter on contested, but unsupported, claims made at the bar table. What is being sought by Mr Fagir is to re-engage Mr Akers with Linfox after it has exercised what is, after all, its clear legal entitlement to bring his contract of employment to an end. That decision by Linfox management is certainly open to challenge in the State Commission but only on the basis of proper evidence that its actions are unfair. 13 On the basis of Mr Akers' version of events, it may follow that the TWU has a legitimate claim that his dismissal by Linfox was unfair but I do not believe that I may establish a prima facie case of that unfairness when so much of what he has to say is challenged by Linfox management. To date there really is nothing more than Mr Fagir's unsupported submissions and Mr Akers' claims which are disputed by Linfox and, in my opinion, it would constitute an improper interference in the rights of Linfox management if I intervened in support of Mr Akers ahead of a proper hearing of the matter in the Part 6 proceedings. 14 Mr Fagir has suggested that the delay in this matter has been due to the conduct of Linfox. He has drawn my attention in that respect to comments I made in my unreported interim decision of Thursday, 17 April, 2003 in Australian Workers Union v. Australian Steel Mill Services Pty (No.2) [Matter No.IRC 998 of 2003 at p.8, viz: " ...One factor which I must take into account in considering whether to make an order under Ss.137(1)(b) or (c) in favour of an employee who has either been dismissed or faces a threat of dismissal - and the crucial factor in this case, in my opinion - would be whether any delay in the proceedings was due to the employer..." Mr D'Apice rejected the claim that Linfox has delayed these proceedings and I agree with him. Linfox, in fact, has initiated the proceedings in the first place with its S.130 notification. It retained Mr Akers on the payroll for one month (during which time, according to Mr Akers' own evidence, he apparently made no efforts to mitigate his loss of income with alternate employment). Nor is there any evidence before me to suggest that Linfox has in any way been responsible for any delay in this matter. On the contrary, it has moved promptly for Mr Akers' claim to be heard under Part 6 as soon as possible. It seeks only some modest time to respond to the TWU's claims. It is entitled to that. 15 Also Mr Fagir argued that there was a prospect of further industrial action by Mr Akers' fellow employees in Linfox if this matter is not addressed under S.137(1)(b) but has to await the outcome of the Part 6 application. I believe that it is important to stress that the Commission does not act to resolve any issue in dispute on the basis of industrial action or the threat of industrial action. As I pointed out in my decision in Australian Workers Union v. Australian Steel Mill Services Pty (No.2) (at p.6): " ...A threat of further industrial action...is not a proper basis to advance a claim on (the dismissed employee's) behalf. It would be inappropriate if claims by those employees who refrain from taking industrial action should be sacrificed or delayed simply because other employees move ahead of the queue by taking industrial action. The Commission does not function in that manner and further industrial action will do nothing to assist (the dismissed employee). His Part 6 application will stand or fall on its merits and not on the basis of any industrial action which accompanies it..." 16 I accept that Mr Akers, like many other employees who have been dismissed, has serious financial pressures placed on him. I sympathise with him in that respect. But I would have expected him to at least have taken some action to mitigate his loss whilst the TWU claims on his behalf is arbitrated (and Mr D'Apice claims that he has already done so). 17 In those circumstances, I see no reason to advance the matter ahead of the Part 6 application scheduled for arbitration on Thursday, 21 February, 2008. The proper course in this matter remains for the TWU to follow the standard procedure, ie by way of the Part 6 application and the directions I have made in that respect in conformity with Practice Direction No.17. I see no reason why Mr Akers should be treated any differently that any other dismissed employee pursuing a remedy under Part 6, particularly since the matter has been expedited to assist him, he had remained on the payroll for a considerable time during the processes of conciliation and the Part 6 application which the TWU has lodged on his behalf is already scheduled for hearing on Thursday, 21 February, 2008. 18 Nor do I believe that it is appropriate for Linfox to retain Mr Akers on its payroll any longer if it does not have any work in the region for him. Mr Fagir suspects that, in view of the fact that Linfox is a large organisation, some such work would, in fact, be available for Mr Akers in the region where he resides but there is nothing by way of evidence to support that assertion to date and I do not believe that there is justification for me to restore Mr Akers in employment with Linfox until that matter is clarified in the Part 6 proceedings. 19 What remains of chief concern to me in these interim proceedings is to ensure that, if the matter proceeds to arbitration in the customary manner, ie by way of the Part 6 application, Mr Akers' position would not be prejudiced in some manner which was incapable of rectification. For instance, in my unreported decision of Friday, 27 November, 1998 in the Bon McArthur Pty Limited Dispute Case [Matter No.6254 and 6256 of 1998] I made interim orders of the type currently sought by Mr Fagir in these proceedings on behalf of 19 employees whom an employer intended to transfer over, without any consultation (and it would appear to me in some haste) to a labour hire company. I commented (at p.4) that: "...if the employees are transferred over to the labour hire companies and I ultimately conclude that the termination of their services...was harsh, unreasonable or unjust within the meaning of S.84(1), any claim for reinstatement on their behalf would be effectively precluded since the work they performed for the company would have been contracted out and there would be by that time no positions...to which they may be reinstated. Their claim would be confined to monetary compensation alone..." 20 In this case, no such problem arises. I appreciate that Mr Akers' financial problems are apparently immediate for him but, in due course, if the TWU is able ultimately to establish an unfairness in Mr Akers' dismissal and to consequently move me to order Mr Akers' reinstatement in employment, it would also be able to pursue a remedy under S.89(3) to cover any loss of earnings he has incurred from the period when he was removed from the Linfox payroll to the date of his reinstatement. 21 In those circumstances, I see no grounds for my intervention in support of Mr Akers to order his return to the Linfox payroll until the Part 6 application is resolved. I dismiss the TWU's application on that basis. I stress that my decision in this matter in no way should be taken as compromising the outcome of the Part 6 application lodged by the TWU - or prejudging it. That matter will be convened on Thursday, 21 February, 2008 for hearing in the customary manner. P J CONNOR Commissioner 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.