Industrial Relations Commission New South Wales Medium Neutral Citation: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, NSW Branch v Roads and Traffic Authority of NSW [2011] NSWIRComm 1024 Hearing dates: 23 May 2011 Decision date: 26 May 2011 Jurisdiction: Industrial Relations Commission Before: Oakman AC Decision: Notice of Motion dismissed; Application for Interim Orders refused Catchwords: INDUSTRIAL DISPUTE - Application for Interim Order - union seeks order for employer to provide employment until dispute arbitrated - Notice of Motion - employer challenges Commission's jurisdiction to make orders - Held: Commission has jurisdiction - notice of motion dismissed - balance of convenience does not favour making interim orders - application refused Legislation Cited: Industrial Relations Act 1996 Cases Cited: ASMOF (NSW) (on behalf of Dr Wojtulewicz) v Director General of NSW Health (Children's Hospital at Westmead) [2008] NSWIRComm 229 Director-General NSW Department of Health, in respect of the Hunter New England Area Health Service and Australian Medical Association (NSW) Ltd [2008] NSWIRComm 112 National Union of Workers, NSW Branch on behalf of Mr Arvin Tubungbanua and Express Data Pty Ltd [2005] NSWIRComm 57 Orange City Bowling Club Ltd v Federated Liquor and Allied Industries Employees' Union of Australia, NSW Branch [1979] AR (NSW) 90 Police Association v NSW Police (No. 3) (2005) 144 IR 150 Re Ambulance Service of NSW and Broken Hill Town Employees' Union [2004] NSWIRComm 73 Category: Interlocutory applications Parties: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, NSW Branch (Applicant) and Roads and Traffic Authority of NSW (Respondent) Representation: Mr A Walkaden Legal Officer, AMWU (Applicant) Mr A Searle, of counsel (Respondent) File Number(s): IRC 109 of 2011 DECISION 1The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, NSW Branch ("the AMWU"), notified the Commission of an industrial dispute with the Roads and Traffic Authority of NSW ("the RTA") under section 130 of the Industrial Relations Act 1996 ("the Act") on 9 February 2011. 2The dispute concerned the on-going employment of an AMWU member, Mr Millen, at the Sydney Harbour Bridge ("SHB") site. Mr Millen was at the time employed under an apprenticeship due for completion on 27 February 2011. In the notification the AMWU said it was unaware of any concerns about Mr Millen's performance and it understood there was a vacant position for a boiler maker at the trade level at the SHB site. 3The dispute was allocated to Bishop C for conciliation. Following a recommendation from Bishop C, Mr Millen accepted an RTA offer of temporary employment for three months from 28 February 2011. Following further conciliation the matter was listed for hearing in relation to interim orders on 23 May 2011 and directions made for the filing and serving of submissions etc by the parties. Additionally, a substantive hearing of the dispute was set down for 4 and 5 August 2011 and directions made for the filing and serving of submissions etc by the parties. A Certificate of Attempted Conciliation was issued by Bishop C. 4The AMWU applied for an interim order in the following terms: " Interim Order 1. That pursuant to s.136(1)(d) of the Act, the RTA to provide Mr Mille[n] with employment on no less favourable terms and conditions until this dispute is arbitrated or otherwise resolved between the parties. Questions for Determination 1) Whether there is a position vacant at the SHB within the skill level and competence of Mr Mille[n]? 2) If the answer to question 1) i[s] yes, whether that position should be filled by Mr Mille[n]" 5On 10 May 2011 the RTA requested the matter be allocated to a different member of the Commission under section 173 of the Act. The matter was referred to the Commission as presently constituted to hear the application by the AMWU for the interim order. On 16 May 2011 the RTA filed a Notice of Motion seeking: "1. An order dismissing the proceedings." 6At a mention on 20 May 2011 the Commission determined that the Notice of Motion and the Application for the interim order should be heard together on 23 May 2011. After hearing the parties on 23 May 2011 the Commission reserved its decision. Background 7Mr Millen was engaged by the RTA as an apprentice metal fabricator from 28 January 2009 to 27 February 2011. 8The apprenticeship arrangement was detailed in a letter from the RTA dated 18 December 2008 offering Mr Millen temporary appointment as an apprentice, which Mr Millen signed and returned to the RTA on 24 December 2008. Under the heading of 'Commencement Date' the letter stated: "Your commencement date is 28 January 2009. ... The apprenticeship is for a duration of up to 4 years. Employment beyond the apprenticeship training period is not guaranteed by the RTA but depends upon vacancies for tradespeople and your performance during training." 9On or about 7 February 2011 the RTA advised Mr Millen that it was not in a position to offer him full time employment following the conclusion of his apprenticeship. 10On 9 February 2011 the AMWU notified the Commission of an industrial dispute in this matter as outlined in paragraphs 1 and 2 above. 11Industrial action was undertaken by the AMWU and other unions in support of this and related disputes. As a result the RTA filed a motion seeking to have the matter dealt with urgently by the Commission and the dispute was subject to conciliation before Bishop C. To assist in resolving the dispute the RTA offered Mr Millen a three month limited duration period of employment on a 'without prejudice' basis. Following a recommendation from the Commission the RTA's offer was accepted. 12The temporary employment arrangement was formally conveyed in a letter from the RTA dated 25 February 2011. The position was as a Metal Fabricator Grade 1. The period of employment was from 28 February 2011 for a period of three months. Mr Millen signed that letter by way of acceptance on 4 March 2011. 13The AMWU filed its material in relation to its application for an interim order on 9 May 2011. The RTA filed its material in relation to the AMWU's application for an interim order on 16 May 2011. The RTA also filed its Notice of Motion challenging the jurisdiction of the Commission on 16 May 2011. 14The RTA's material includes an affidavit sworn by Mr Adam Moulton dated 16 May 2011. The RTA relies on that affidavit in relation to both its Notice of Motion and the AMWU's application for an interim order. The affidavit was read at the hearing on 23 May 2011. The AMWU informed the Commission that it did not dispute the facts as set out in that affidavit. Parties Cases on the Notice of Motion 15The RTA case in relation to the Notion of Motion consists of the Notice of Motion, the written and oral submissions provided at the hearing and the affidavit of Mr Moulton. 16First, the RTA submitted that no jurisdiction for the Commission to make such interim or final orders has been identified. Secondly, whether as a matter of industrial merit the AMWU has brought, on a proper evidentiary basis, a case that establishes the basis for the Commission to interfere with the decision of management. The RTA submitted that the AMWU needed to establish that the exercise of managerial decision making in this instance was 'unjust ... unreasonable, harsh or oppressive' - per Re Ambulance Service of NSW and Broken Hill Town Employees' Union [2004] NSWIRComm 73 - and it had not done so. 17The RTA submitted that the AMWU's application relied on s.136(1)(d) of the Act as the relevant source of power. However, that provision is not a separate source of power but is merely facilitative - Police Association v NSW Police (No. 3) (2005) 144 IR 150, at [59]. The AMWU had failed to identify any express power that would permit making the orders sought and until that express power was identified the RTA does not know the case it has to meet. In those circumstances the RTA should not be put at risk of orders being made without a fair opportunity to consider any proper case for relief. 18Alternatively the application should be dismissed on the basis that the material relied upon by the AMWU does not disclose any reasonable cause of action. Effectively, the RTA maintained that this matter was not about dismissal, in the broad sense that word is used in the Act, but about the failure to offer further, ongoing work. The RTA referred the Commission to a number of decisions on the issue of dismissal versus failing to offer ongoing work, including Orange City Bowling Club Ltd v Federated Liquor and Allied Industries Employees' Union of Australia, NSW Branch [1979] AR (NSW) 90. The RTA maintained that a refusal to employ is not an industrial matter under the Act and the provisions of the Act are now, in this context, only concerned with dismissals and threatened dismissals. 19The AMWU case in relation to the Notice of Motion consists of the outline of submissions filed in relation to its application for an interim order and oral submissions at the hearing. The AMWU maintained that s.136(1)(d) provided the necessary power for the Commission to make the orders it sought. The AMWU submitted if the preconditions contained throughout ss.130 - 136 were satisfied, the Commission could effectively make an order relying on s136(1)(d). And the AMWU submitted that the dispute between the parties was clearly concerning an 'industrial matter'. 20The AMWU said the decision in Police Association could be distinguished from the present matter and it also relied on the Full Bench decision in Director-General NSW Department of Health, in respect of the Hunter New England Area Health Service and Australian Medical Association (NSW) Ltd [2008] NSWIRComm 112 at [4.4] and [76]. 21In reply, the RTA accepted that the factual matrix in this matter can be described generally as an industrial matter. The RTA submitted that the authority cited by the AMWU did not assist it in the circumstances of the case. The RTA maintained that this was a dispute about the failure to offer further, ongoing work; the evidence of Mr Moulton is that there is no ongoing work available; there was no basis for challenging that evidence; and the AMWU has not established the evidentiary basis on which the industrial merits could be said to justify the Commission's intervention in the management decision - Re Ambulance Service . Parties Cases on the Application for Interim Order 22The AMWU's case in relation to its application for interim orders consists of the material filed in the course of the dispute, the outline of submissions filed in relation to its application for an interim order and oral submissions at the hearing. 23The AMWU submits that the proper tests for making an interim order is whether the AMWU can demonstrate a sufficient likelihood of success and that the balance of convenience favours making the interim order sought. 24In relation to the first test, it was submitted that the questions to be determined by the Commission (see paragraph 4 above) could only properly be made after the hearing of evidence. However the material before the Commission at this interim stage establishes that Mr Millen worked as a Metal Fabricator for the final two years of his apprenticeship and since February 2011 he has been performing meaningful work as a tradesperson at the SHB. It follows that the AMWU has sufficient likelihood of success in the final hearing. 25In relation to the second test, it was submitted the balance of convenience clearly favoured granting interim relief. In short - Mr Millen was precluded as an apprentice from making an unfair dismissal application and would be left with no effective means to challenge the matter; if not granted he would be without income for an unknown period of time; in the absence of an employment relationship there would be little utility in final orders being made; and there will be little if any difficulty for the RTA based on its size and because it will receive productive work in exchange for the wages paid to Mr Millen. 26The RTA case in relation to the application for interim orders consists of the written and oral submissions provided at the hearing and the affidavit of Mr Moulton. 27The RTA agreed that it is well settled that an interim order may be made where the applicant demonstrates both a 'serious question to be tried' and that the 'balance of convenience' favours making an order on an interim basis. 28The RTA submitted that, based on its arguments in support of its Notice of Motion (see, in particular, paragraphs 16 and 18 above), in relation to the AMWU not establishing the proper evidentiary case to support its application, there was no serious question to be tried. Again, the RTA emphasised that this dispute was about the failure to offer further, ongoing work and not a dismissal or threatened dismissal. 29The RTA submitted that the balance of convenience did not favour the grant of an interim order because of the inconvenience to the RTA if forced to provide work where the only evidence is that such work is not available; the failure of the AMWU to make out a proper basis for the Commission to interfere in the management decision in terms of Re Ambulance Service ; and, because there is no work, granting the interim orders will just postpone the point at which Mr Millen must seek alternative employment or otherwise move on. Consideration Jurisdiction 30The Commission has carefully considered the submissions of the parties on the issue of whether the interim orders sought by the AMWU are within its jurisdiction. Ultimately, the Commission has concluded that it has the jurisdiction to make the orders (or ones on similar terms) sought by the AMWU. 31The Commission agrees with the RTA that the provisions of s.136(1)(d) of the Act are facilitative only and do not confer an express power - per the decision in Police Association . The AMWU's reliance on that provision to authorise the orders it seeks is only valid in so far as s136(1)(d) makes it clear that the Commission has the power to make interim orders. 32Nor does the decision in Australian Medical Association (NSW) Ltd appear to assist the AMWU's argument that s.136(1)(d) provides an express power. An issue concerning s.136(1)(d) was raised in support of a party seeking leave to appeal, but the resolution of that issue and particularly whether or not s136(1)(d) was facilitative or provided an express power, does not appear to have been considered by the Full Bench. The Full Bench did however comment generally, at [76] and [79], that whether or not a particular order etc might be made under s.136 would depend on the evidence led and the submissions made by the parties. 33However, despite referring only to s.136(1)(d) of the Act, the Commission is of the view that the material before it, and supplied to the RTA by the AMWU during the course of the s.130 Notification and this application for interim orders, sufficiently identifies the cause of action - the industrial matter that the AMWU has raised in the industrial dispute - and the remedy it seeks against the RTA - an order to effectively preserve the employment of Mr Millen in the interim. 34Mr Millen was offered employment by the RTA on 18 December 2008 under an apprenticeship that was expressed to be a temporary appointment until the completion of that apprenticeship. However, the RTA also indicated in that offer that there was the possibility of ongoing employment with the RTA, subject to performance and the availability of work. Around 7 February 2011 the RTA advised Mr Millen that, because of the unavailability of work, his temporary employment would have to cease when his apprenticeship was completed on 27 February 2011. The AMWU on 9 February 2011 notified to Commission of an industrial dispute with the RTA concerning the 'ongoing employment' of its member, Mr Millen. Following conciliation, Mr Millen accepted the RTA's without prejudice offer for a temporary period of employment for 3 months from 28 February 2011 to 28 May 2011. The substantive hearing of the matter - the dispute concerning Mr Millen's ongoing employment by the RTA - is listed for August 2011 and the AMWU has also sought interim orders that would, effectively, maintain the status quo in relation to his employment by the RTA until the matter was finally determined by the Commission. 35In those circumstances, it is arguable that Mr Millen was initially employed under a temporary, fixed term contract with the possibility held out to him at the time of appointment that his employment may be extended. Once he was advised that his employment would not be extended he sought the assistance of his union to prevent the termination of his employment by the employer. Therefore, the dispute appears to properly relate to an industrial matter; a Certificate of Attempted Conciliation has been issued and the matter has advanced to arbitration; and the AMWU seeks orders that are based, arguably, on either preventing the employer from carrying out the threat of dismissing Mr Millen or re-employing Mr Millen. As such the preconditions to making a dispute order under s.137 of the Act appear to be satisfied. 36Additionally, in those circumstances, the Commission does not accept that the RTA does not know the case it has to answer or has been denied an opportunity to put an effective case against the AMWU's case. 37It follows that the Commission is satisfied it has the necessary jurisdiction to consider an application for interim orders (per section 136(1)(d)) and to determine whether it should issue orders under either s.137(1)(b) or (c). The RTA's Notice of Motion should therefore be dismissed. Interim Order 38In ASMOF (NSW) (on behalf of Dr Wojtulewicz) v Director General of NSW Health (Children's Hospital at Westmead) [2008] NSWIRComm 229, The President, Boland J, confirmed that the power to make an interlocutory order is a discretionary one and that the Commission will not lightly interfere with the employer's right to terminate the employment of an employee (at [31]). His Honour also confirmed that the appropriate tests to be considered are: that there is a serious question to be tried; and that the balance of convenience favours the grant of the order (at [31] -[38]). 39As discussed at paragraphs 34 and 35 above, there is clearly a serious question to be tried. The Commission acknowledges the RTA's position that this is effectively a case about refusing to provide on-going work and not about dismissal. However, the RTA indicated (albeit qualified and cast in negative terms) in the appointment letter that it might be possible that his employment with the RTA could be extended beyond the term of his apprenticeship. As such, the RTA's decision to terminate Mr Millen's employment - for lack of available work - can be properly, on a prima facie basis at least, considered a question relating to dismissal rather than the mere refusal to provide work. 40The matter is not free of doubt, but, in the Commission's opinion, the material currently before it shows that the AMWU has sufficient likelihood of success to otherwise justify the preservation of the status quo on an interim basis. 41In National Union of Workers, NSW Branch on behalf of Mr Arvin Tubungbanua and Express Data Pty Ltd [2005] NSWIRComm 57, Backman J said (at [46]) that in determining the balance of convenience the Commission needed to examine several issues including: (i) Is there work available? (ii) Is re-instatement or re-employment practicable? (iii) The reasons, if any, for the termination of the employees employment. 42If the interim order is not made it is clear that Mr Millen will lose whatever wages he might otherwise had received working for the RTA. This necessarily will be to his detriment. However, there is no evidence before the Commission as to Mr Millen's specific financial circumstances and whether there is any greater impact or detriment to him, other than the lost opportunity to work for and therefore receive wages from the RTA, is impossible to determine. 43It was also argued that Mr Millen has no unfair dismissal rights and so would lose the opportunity to challenge the RTA's decision in this matter. This proposition appears to be also based on the proposition that if the interim orders are not granted there would be no utility in pursuing final orders. Although there is some force to these two points, the respective weight to be given to these factors is somewhat reduced by the ability in an industrial dispute to seek an order under s.137(1)(b) for re-employment. Termination of the employment relation between Mr MIllen and the RTA does not prevent the Commission from further consideration of the matter. However, it is also true that the Commission cannot order compensation under ss136 and 137. 44The RTA's primary challenge to the balance of convenience favouring the grant of interim orders is the unavailability of work for Mr Millen. It is a significant point, whatever the size of the RTA's operations / business. 45The only evidence before the Commission on the current availability of work is contained in Mr Moulton's affidavit. Mr Moulton's evidence is that there is no work available. In Tubungbanua there was a conflict in the evidence before the Commission as to whether or not work was actually available and which was ultimately considered a matter for the substantive hearing to resolve (at [50] -[53]). Mr Moulton's evidence is accepted by the AMWU. Additionally, the original reason Mr Millen was given by the RTA for wanting to terminate his employment on 27 February 2011 was the lack of available work. 46Having carefully weighed the competing factors identified by the parties, and reviewed all the material before it, the Commission does not consider the balance of convenience to favour the grant of the interim order sought by the AMWU. Therefore, the application for an interim order is refused. Conclusion 47The Commission has determined that: (1) The RTA's Notice of Motion is dismissed; and (2) The AMWU's Application for Interim Orders is refused. M Oakman Acting 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. Decision last updated: 02 June 2011