State Transit Authority of New South Wales v Australian Rail, Tram and Bus Industry Union, New South Wales Branch, Bus and Tram Division [2014] NSWIRComm 41

Industrial Relations Commission New South Wales Medium Neutral Citation: State Transit Authority of New South Wales v Australian Rail, Tram and Bus Industry Union, New South Wales Branch, Bus and Tram Division [2014] NSWIRComm 41 Hearing dates: 30 April 2014, 18 June 2014 Decision date: 29 August 2014 Jurisdiction: Industrial Relations Commission Before: Walton J, President, Boland AJ, Tabbaa C Decision: The Full Bench makes the following orders: (1) Leave to appeal is granted. (2) The appeal is upheld only to the extent determined by this decision. (3) The determinations made by Staff J at [145] and [146] of his Honour's reasons for decision are quashed. (4) Matter Nos IRC 272, 700 and 701 of 2013 are remitted to a member of the Commission as allocated by the President for the purpose of resolving any extant industrial dispute in accordance with this decision, including the making of any order, recommendation or award variation pursuant to s 136 of the Act. Catchwords: APPEAL - Application for leave to appeal and appeal from a first instance decision in which the primary judge upheld the respondent's case that certain reform initiatives proposed by the appellant were not permitted by the relevant Award, were contrary to custom and usage and contravened the no extra claims provision of the Award - AWARD INTERPRETATION - Relevant principles - Purpose of Award - Award history - Whether Award permitted the use of part-time broken shifts - Whether the Award permitted the use of casual bus drivers by rostering or using them in the first instance to cover all absenteeism including replacing full time and part time employees who leave the appellant's employ - INDUSTRIAL DISPUTE - Whether determinations made by primary judge were an exercise of the Commission's powers under s 136 of the Industrial Relations Act 1996 Legislation Cited: Industrial Relations Act 1996 Cases Cited: Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Thelander [2012] HCA 56; (2012) 248 CLR 378 City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 Director of Public Employment (by her Agent the Commissioner of New South Wales Fire Brigades) v New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158; (2008) 180 IR 170 George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 Kucks v CSR Ltd (1996) 66 IR 182 Nikolaidis v Legal Services Commissioner [2007] NSWCA 130 Police Association v NSW Police (No 3) [2005] NSWIRComm 243; (2005) 144 IR 150 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWIRComm 23 Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc & Ors [2000] NSWCA 65; (2000) 48 NSWLR 548 Short v F W Hercus Pty Ltd (1993) 40 FCR 511 Solution 6 Holdings Ltd v Industrial Relations Commission of New South Wales [2004] NSWCA 200; (2004) 60 NSWLR 558 State Transit Authority of New South Wales, The Australian Tramway and Motor Omnibus Employees' Association (C Nos 21155 and 22123 of 1991, Print K6513). State Transit Authority of New South Wales and The Australian Tramway and Motor Omnibus Employees' Association (C Nos 21155 and 22123 of 1991, Print K8515) The Australian Rail, Tram and Bus Industry Union, New South Wales and State Transit Authority [2013] NSWIRComm 102 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 Category: Principal judgment Parties: State Transit Authority of New South Wales (Appellant) Australian Rail, Tram and Bus Union, New South Wales (Respondent) Representation: M Seck of counsel (Appellant) I Taylor SC with O Fagir of counsel (Respondent) Henry Davis York Lawyers (Appellant) Haylen & McKenzie Solicitors (Respondent) File Number(s): IRC 1071 of 2013 Decision under appeal Jurisdiction: 9105 Citation: [2013] NSWIRComm 102 Date of Decision: 2013-12-06 00:00:00 Before: Staff J File Number(s): IRC 272, 700 and 701 of 2013