Industrial Relations Commission New South Wales Medium Neutral Citation: Secretary of the Treasury & ors and Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales & ors [2014] NSWIRComm 2 Hearing dates: 30 January 2014 Decision date: 12 February 2014 Jurisdiction: Industrial Relations Commission Before: Walton J, President, Staff J, Newall C Decision: (1) The appeal in this matter is stayed until the determination of proceedings (385141 of 2013) in the New South Wales Court of Appeal; (2) The application for a stay is refused. Catchwords: Appeal - application for stay - proceedings for prerogative relief before New South Wales Court of Appeal - proceedings dealing with same subject before the Court of Appeal and Commissioner on appeal - principles on stay -s 190 - nature of that provision - holding appeal - chances of prosecution of appeal remote - lack of utility - weighed against balance of convenience - stay refused Legislation Cited: Industrial Relations Act 1996 Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 Superannuation Guarantee (Administration) Amendment Act 2012 (Cth) Uniform Civil Procedure Rules Cases Cited: Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 Campbells Cash and Carry Pty Limited and National Union of Workers, New South Wales Branch [2001] NSWIRComm 79; (2001) 104 IR 400 Newcrest Mining v Industrial Relations Commission (NSW) [2005] NSWCA 85; (2005) 139 IR 72 Nurses and Midwives Association v Justice Health and Forensic Mental Health Network (a Division of NSW Health) [2012] NSWIRComm 148 Qureshi v De Haas [2009] NSWIRComm 46 Re Crown Employees Wages Staff (Rates of Pay) Award 2011 & Ors [2013] NSWIRComm 53 Re Crown Employees Wages Staff (Rates of Pay) Award 2011 & Ors (No 2) [2013] NSWIRComm 76 Re Crown Employees Wages Staff (Rates of Pay) Award 2011 & Ors (No 3) [2013] NSWIRComm 109 Re Transport Industry - Waste Collection and Recycling (State) Award [2000] NSWIRComm 236; (2000) 102 IR 192 State of New South Wales (Department of Public Works and Services and Department of Education and Training) v Workcover Authority of New South Wales (Inspector Page) [2000] NSWIRComm 124; (2000) 101 IR 131 Surfing Hardware International Holdings & Ors v William McCausland and Anor [2006] NSWIRComm 276; (2006) 156 IR 352 Water Industry Salaried Officers' Union v Professional Officers' Association (NSW) (1987) 22 IR 178 Category: Interlocutory applications Parties: Secretary of the Treasury (first appellant) Director-General, Ministry of Health (second appellant) Landcom (third appellant) Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (first respondent) Unions NSW (second respondent) Construction, Forestry, Mining and Energy Union (New South Wales Branch) (third respondent) Australian Manufacturing Workers' Union (fourth respondent) Australian Salaried Medical Officers' Federation (New South Wales) (fifth respondent) The Australian Workers' Union NSW Branch (sixth respondent) Electrical Trades Union, NSW Branch (seventh respondent) Fire Brigade Employees' Union (eighth respondent) Health Services Union NSW (ninth respondent) NSW Nurses and Midwives' Association (tenth respondent) NSW Teachers Federation (eleventh respondent) The Association of Professional Engineers, Scientists and Managers, Australia (NSW Branch) (twelfth respondent) Transport Workers' Union of New South Wales (thirteenth respondent) United Services Union (fourteenth respondent) United Voice (fifteenth respondent) Representation: Mr R Lancaster SC (appellants) Mr S Crawshaw SC and Mr M Gibian of counsel (first respondent) Mr J Nolan of counsel (second to fifteenth respondents) Crown Solicitor's Office (first and second appellants) Ashurst Lawyers (third appellant) McNally Jones Staff Lawyers (first respondent) Unions NSW (second respondent) Construction, Forestry, Mining and Energy Union (New South Wales Branch) (third respondent) Australian Manufacturing Workers' Union (fourth respondent) Australian Salaried Medical Officers' Federation (New South Wales) (fifth respondent) The Australian Workers' Union NSW Branch (sixth respondent) Electrical Trades Union, NSW Branch (seventh respondent) Fire Brigade Employees' Union (eighth respondent) Maurice Blackburn Lawyers (ninth respondent) NSW Nurses and Midwives' Association (tenth respondent) NSW Teachers Federation (eleventh respondent) The Association of Professional Engineers, Scientists and Managers, Australia (NSW Branch) (twelfth respondent) Transport Workers' Union of New South Wales (thirteenth respondent) United Services Union (fourteenth respondent) United Voice (fifteenth respondent) File Number(s): IRC 1052 of 2013 REASONS FOR DECISION 1This is a decision on an application for a stay, made in the context of an application for leave to appeal and appeal brought pursuant to ss 187 and 188 of the Industrial Relations Act 1996 ('the Act') by the Secretary of the Treasury, the Director-General of the Ministry of Health and Landcom ('the appellants') against a decision and orders made by Boland J, President (as he then was), in Re Crown Employees Wages Staff (Rates of Pay) Award 2011 & Ors (No 3) [2013] NSWIRComm 109 ('Crown Employees No 3'). The decision was handed down on 17 December 2013. The instant appeal, including the application for a stay, was filed on 19 December 2013. The orders were made by Boland J on 20 December 2013. 2This appeal, including the application for a stay, was listed for directions before Walton J, Vice-President (as his Honour then was), on 24 December 2013. On that date the question of the stay was stood over for hearing on 30 January 2014. History of the Proceedings 3The present appeal must properly be seen in its context. 4Pursuant to a reference of a threshold question (see s 193(1)(b) of the Act) with respect to 61 applications to vary public sector awards (such applications being made pursuant to s 17 of the Act), a Full Bench determined that cl 6(1)(a) of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 ('the Regulation') did not constrain, as a matter of jurisdiction, the grant of a 2.5 per cent increase in remuneration (and other conditions of employment) in the awards and other instruments the subject of the applications, notwithstanding the receipt by employees regulated by the instruments of a 0.25 per cent increase in the charge percentage under Schedule 1 of the Superannuation Guarantee (Administration) Amendment Act 2012 (Cth) and the absence of any countervailing employee cost savings (as defined under the Regulation): Re Crown Employees Wages Staff (Rates of Pay) Award 2011 & Ors [2013] NSWIRComm 53 ('Crown Employees No 1'). 5In the result, it was found the Commission's jurisdiction extended to the grant of up to 2.5 per cent increases in remuneration and other conditions of employment rather than a lower ceiling which resulted from the superannuation charge constituting an employee related cost for the purposes of cl 6(1)(a) of the Regulation (assessed by the parties to the first instance proceedings as being a discount of 0.23 per cent - the jurisdictional limit therefore being 2.27 per cent). 6The respective proceedings were referred to Boland J to determine the then extant applications in accordance with the decision of the Full Bench. 7The appellants appeared in those proceedings. 8The decision of the Full Bench in Crown Employees No 1 was not the subject of any jurisdictional challenge. 9Following that decision the Government amended the Regulation with effect from 28 June 2013 so as to require the Commission, in making awards, to take into account increases in superannuation contributions arising under federal legislation. 10On 21 August 2013, however, the Legislative Council disallowed the amendments to the Regulation. That had the effect that increases in rates of pay and allowances of 2.5 per cent per annum were available, in accordance with the decision of the Full Bench in Crown Employees No 1, to be included in public sector awards, agreements and determinations, irrespective of the superannuation charge. 11On 6 September 2013, the Commission, constituted by Boland J, heard argument from the public sector unions that increases of 2.5 per cent should be granted. The present appellants, and in particular the Secretary of the Treasury, sought the opportunity to advance a case against the increases proposed on fiscal and economic grounds. 12In a decision handed down on the same day (Re Crown Employees Wages Staff (Rates of Pay) Award 2011 & Ors (No 2) [2013] NSWIRComm 76), Boland J held that that opportunity should be afforded to the appellants. The matter was set down for hearing on that basis. 13It is that hearing which gave rise to the decision presently under appeal. 14The appellants appeared in the proceedings giving rise to the decision under appeal. It was not then submitted that Boland J was acting with a want of jurisdiction or was otherwise committing any jurisdictional error in hearing and determining the proceedings. Rather, as set out above, the case before his Honour was argued on what can, in short form, be described as a 'merits' basis. That is, the Secretary of the Treasury opposed any increase in rates of pay beyond 2.27 per cent essentially on economic and fiscal grounds, and not on any other grounds. 15In Crown Employees No 3, Boland J determined that wage and allowance increases of 2.5 per cent should flow in a number of awards. Whilst his Honour's decision was an exercise of his discretion in that regard, it was in conformity with the decision of the Full Bench in Crown Employees No 1. 16As earlier noted, the orders to that effect were made by Boland J on 20 December 2013. As was conceded by counsel for the appellants, no application was made by the appellants to restrain Boland J from making the orders or to stay his decision or orders whilst proceedings were brought for judicial review in the New South Wales Court of Appeal, although it was open to the appellants to make such an application to Boland J. 17On 23 December 2013, that is, after the appeal was here filed, the appellants brought an action for judicial review and declaratory relief in the New South Wales Court of Appeal seeking, inter alia, an order that the decision and orders of Boland J in Crown Employees No 3 be quashed. The Appeal 18It is important to reflect upon the nature and character of the appeal. 19The present appeal before the Commission was described by the appellants in written submissions as a 'holding appeal', said to be made in order to preserve the appellants' position before the Commission pending the hearing and determination of their application for prerogative relief . In the proceedings on 24 December 2013, this submission appeared to have been disavowed by senior counsel for the appellants in oral submissions in favour of a contention that the matter consisted of an appeal proper. In submissions advanced to the Full Bench, however, the appeal was squarely characterised as a 'holding appeal'. 20In the proceedings before the Full Bench, senior counsel for the appellants submitted that the instant appeal was brought solely in respect of what was said to be the 'jurisdictional question' in the decision under appeal. There was no challenge to the decision of Boland J as to the merits of the fiscal and economic arguments mounted by the appellants before him. The grounds stated in the Notice of Appeal confined the application for leave to appeal and appeal to two issues, as follows: H. Grounds of Appeal are: (i) His Honour, notwithstanding he was giving effect to a direction from a Full Bench of the Commission, exceeded the limits of the award-making power conferred under the Act. (ii) By making the decision and orders outside the limits of the functions and powers conferred on the Commission under the Industrial Relations Act, 1996 his Honour fell into jurisdictional error that ought be corrected. 21The appellants submitted that they expected the Full Bench would, in the instant appeal, follow its decision in Crown Employees No 1. The appellants conceded that the appeal and the proceedings brought for judicial review in the New South Wales Court of Appeal agitated precisely the same jurisdictional issue. 22The appellants submitted that, if they were unsuccessful in the Court of Appeal proceedings, the present appeal would be discontinued. It was also conceded that, in the event that the orders sought in the summons issued in the Court of Appeal proceedings were granted, the present appeal would effectively be spent (the order sought the quashing of the decision of Boland J). 23The appellants did not accept that the appeal had no utility, contending that the appeal may serve some purpose if the Court of Appeal found the orders made by Boland J were in excess of jurisdiction, but, nonetheless, refused to make orders of a correctional nature (including the refusal of a declaration). The prospect of this eventuality was conceded to be slender. The respondents contended that, in substance, the appellants had conceded, by this submission, that the present appeal had no utility and would not or could not, in the final analysis, be prosecuted. 24Nonetheless, the appellants submitted, in the course of the proceedings, that the appeal was a legitimate appeal and that the appellants wished to prosecute it. 25During the course of the proceedings, the Full Bench determined that, subject to the course ultimately taken by the New South Wales Court of Appeal, it would programme the appeal for hearing and determination in the ordinary course and to dispose of the application for a stay of the orders made at first instance in that light (in which the balance of convenience issues would most likely play a predominant part). The appellants resisted that course and contended that the appeal proceedings should await the hearing of prerogative relief action in the Court of Appeal. It was in this context that the appellants (and the respondents) consented to an order staying the appeal proceedings pending the determination of proceedings for prerogative relief in the Court of Appeal. This Decision 26It was in these circumstances that the Full Bench made orders at the conclusion of the hearing held on 30 January last staying the appeal proper, and, having earlier heard the parties with respect to the application for a stay, refusing the application for a stay of the orders of Boland J made on 20 December 2013. 27Having regard to those unusual circumstances the Full Bench indicated that it would only provide reasons if either party made a request for the same. That request was made by the appellants on 31 January. 28These are our reasons for refusing the application for a stay of the decision and orders of Boland J. Principles on Stay 29As the matter eventuated it is not necessary to deal in detail with the principles applying to a stay. We set out briefly here the fundamental principles. 30The power to stay a decision pending determination of an appeal is provided by s190 of the Act. That section provides that a Full Bench of the Commission may, on such terms as it considers appropriate, order that the decision concerned be stayed, in whole or part, either until the determination of the appeal or a further order of the Full Bench. 31The general principles as to the exercise of that discretion in the consideration of an application for a stay are well established. 32The grant of a stay is an exercise of discretion: Campbells Cash and Carry Pty Limited and National Union of Workers, New South Wales Branch [2001] NSWIRComm 79; (2001) 104 IR 400 at [63]. 33The essential principle, so stated, may be expressed in this way: it is sufficient, for a stay to be granted, that the appellant show a reason to warrant the relevant exercise of discretion: Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685, as adopted by this Commission in Court Session in Water Industry Salaried Officers' Union v Professional Officers' Association (NSW) (1987) 22 IR 178. In other words, the question is whether the applicant for a stay has demonstrated an adequate reason for, or an appropriate case to warrant, the exercise of the Commission's discretion to delay the decision made at first instance from being effective pending determination of the appeal: Campbells Cash and Carry at [49] and [63] (applying State of New South Wales (Department of Public Works and Services and Department of Education and Training v WorkCover Authority of New South Wales (Inspector Page) [2000] NSWIRComm 124; (2000) 101 IR 131 at [15]. 34That is the expression of the fundamental principle. In the practical exercise of the discretion, however, the Commission will have regard to a variety of considerations, including the balance of convenience and the competing rights of the parties. It is also appropriate to have regard, in a preliminary way, to the appellants' prospects of success in order to properly assess the balance of convenience. 35The following principles are also germane: the mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears: Campbells Cash and Carry at [63]. The onus is upon the applicant for a stay to demonstrate a proper basis for a stay that will be fair to all the parties and just: Re Transport Industry - Waste Collection and Recycling (State) Award [2000] NSWIRComm 236; (2000) 102 IR 192 ('Re Transport Industry') at [18]. The discretion as to the grant of a stay extends to a discretion as to the terms on which it may be granted: Re Transport Industry at [18]. 36The principles set out in the above authorities have been adopted in subsequent decisions in this jurisdiction (see Surfing Hardware International Holdings & Ors v William McCausland and Anor [2006] NSWIRComm 276; (2006) 156 IR 352; Qureshi v De Haas [2009] NSWIRComm 46; Nurses and Midwives Association v Justice Health and Forensic Mental Health Network (a Division of NSW Health) [2012] NSWIRComm 148). 37In the proceedings before the Full Bench, the respondents submitted that a more stringent test should be applied in circumstances where a stay is applied for at the same time prerogative relief is sought. That proposition was said to arise from, particularly, the decision of the Court of Appeal in Newcrest Mining v Industrial Relations Commission (NSW) [2005] NSWCA 85; (2005) 139 IR 72. 38Again, as the matter eventuated it is not necessary to express a concluded view on that matter and we do not do so. 39All parties accepted the prospects of success of the appeal were relevant to the determination of the application for a stay. The Instant Application for a Stay of the Decision and Orders of Boland J 40It is to be remembered that a stay was here sought pending proceedings in another jurisdiction seeking prerogative relief. 41The effect of the stay would have been to prevent wage increases, granted by Boland J's decision, from flowing to the affected employees. That is not a decision lightly to be taken. 42The ground - effectively the only ground - advanced in the written submissions for the appellants was expressed in the following way: It was submitted that the practical issue was whether the salaries and allowances of a large number of public sector employees under a total of 61 public sector awards agreements and determinations may be increased by a further 0.23 per cent over the 2.27 per cent increase already being paid as from 1 July 2013. 43It was then said that if the stay were refused, the appellants would be required forthwith to implement necessary payroll adjustments involving a very large number of small individual salary increases; in the event that the appellants were successful in their application for judicial review, that would result in the necessity for a highly onerous and disproportionately expensive administrative exercise to recover excess monies paid. 44If, on the other hand, the stay were granted, the effect on employees not being paid an additional 0.23 per cent of salaries and allowances would be minimal. If the application for judicial review were to be unsuccessful, the amounts would, in any event, be paid backdated to 1 July 2013. 45That ground was a ground of substance. The Commission has a statutory obligation to consider the public interest, and specifically to consider the effects of its decisions on the economy of New South Wales: s 146(2) of the Act. 46Even without that direct statutory obligation, to decline a stay where the effect of that decision would be to require the State to make a large number of small amendments to salaries which might then need to be reversed at a potentially substantial administrative cost, when balanced against the passage of a 0.23 per cent wage increase which, if it is held properly to have been awarded, is guaranteed to be paid on a backdated basis, must be weighed in the assessment of the balance of interests to be assessed in the consideration of a stay. That balancing exercise must include, in this case, however, a close consideration of countervailing factors: the rather unconventional appeal brought by the appellants, which was stayed by their consent, and the very serious questions as to the utility of the appeal (even if it was to be prosecuted). The question of action in multiple fora also loomed large. 47The respondents strongly contended that the prospects for the appeal were negligible; each of them relying upon its lack of utility. The first respondent contended that the appeal was either incompetent or bound to fail, and that ultimately the appellants did not intend to pursue the appeal (the first respondent also relied upon a number of other arguments concerning the discretion of the Full Bench to refuse a stay). The second to fifteenth respondents contended that "the stay cannot be granted ex nihilo - a stay may only be granted in the course of the hearing and determination of a real, 'live', appeal- not as an expedient on the way to an outcome in another court." Conclusion 48We are of the view that the nature of the present appeal, as it was ultimately brought and prosecuted (or failed to be prosecuted) by the appellants, constituted an overwhelming discretionary factor over other factors to which we have referred, to warrant the refusal of the application for a stay of the orders made by Boland J in the proceedings referred by the Full Bench in Crown Employees No 1. 49This application was brought under s 190 of the Act. (The appellants did not invoke the exercise of any discretion residing in the Commission, at first instance, to refrain from the making of orders or subsequently stay the orders, once made, having regard to the proceedings brought for judicial review. Nor did they seek that the Full Bench reconstitute itself to deal with such an application in an original jurisdiction.) 50Whilst s 190 provides a wide scope for moulding the form of stay orders, the provisions are centrally directed to the making of orders in the course or furtherance of, or ancillary to, an appeal brought under the Act. 51The appellants described their appeal as a 'holding appeal' without assigning any meaning to that expression. If the expression was intended to constitute a statement of an intention to appeal (see Rule 51.6 of the Uniform Civil Procedure Rules) then it does not constitute a procedure conforming to the rules and practices of this Commission. Nor do the rules and practices of the Commission provide that a Notice of Appeal may be lodged merely with the intention of bringing the appeal within time or to hold the appeal in reserve pending the conduct of proceedings in another forum, in the absence of an actual prosecution of the appeal. In this sense, the characterisation of the appeal as a holding appeal does not assist the appellants' application but does elucidate the true nature of the proceedings brought by the appellants. 52The decision by the appellants not to pursue their appeal in the face of a determination by the Full Bench to programme the matter for hearing, and their subsequent consent to a stay of the proceedings, when considered in the light of the overall context of the appeal as we have described it, readily leads to the conclusion that there are negligible prospects that the appellants will ultimately prosecute their appeal. In addition to the stay of the appeal, the consequences of either success (such that the Court of Appeal determined there was an absence of jurisdiction for the orders made by Boland J) or failure in the Court of Appeal made the prospect of the active prosecution of these proceedings (pursuant to the grounds stated in the Notice of Appeal) so slender as to be remote. 53The appeal may, thus, be described as lacking utility and, without determining the first respondent's contention that there is an abuse of process, it may more aptly, if not metaphorically, be described as an 'empty vessel' which, in all likelihood, would serve no other purpose than to be a vehicle for the prosecution of an application for a stay. 54Ultimately, we consider the application brought by the appellants was, in substance, or in greater part, directed to a stay of the first instance orders pending the determination of proceedings in the Court of Appeal rather than a stay of the proceedings pending the determination of the appeal as contemplated by s 190 of the Act, or some other incident of the appeal. We do not consider that the same issue vis a vis the question of jurisdiction (above) should be prosecuted concurrently in two jurisdictions. If, in lieu of immediately seeking judicial review of the Full Bench decision in Crown Employees No 1, the appellants first sought to bring an appeal from the referred proceedings (either as to jurisdiction or merit), then it may be expected they would prosecute that appeal, or have it formally dismissed, before then exercising their rights as to judicial review in the Court of Appeal. No satisfactory explanation was provided by the appellants as to the course they ultimately chose to adopt. 55We do not consider that a stay of the orders and decision of Boland J should be granted in those circumstances (although we will assume, for present purposes, that the appeal is competent). Whilst the factors raised as to the balance of convenience in the matter would normally constitute a significant finding in favour of the grant of a stay if the appeal was prosecuted in an orthodox way, we consider that that weight was, in the final mix of considerations, neutralised by the nature and character of the appeal and, particularly, the appellants' decision not to progress the appeal and, indeed, to consent to the staying of these proceedings. A proper balancing of these factors should result, in our view, in the refusal of the application for a stay. Orders 56The Full Bench confirms the orders made on 30 January 2014, as follows: (1)The appeal in this matter is stayed until the determination of proceedings (385141 of 2013) in the New South Wales Court of Appeal; (2)The application for a stay is refused. ********** 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: 13 February 2014