Industrial Relations Commission New South Wales Medium Neutral Citation: Transport Workers' Union of NSW v Veolia Environmental Services (Australia) Pty Ltd [2015] NSWIRComm 1009 Hearing dates: 30 April 2015 Decision date: 15 May 2015 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Application for Orders dismissed Catchwords: Transport industry – notification of dispute pursuant to s.332 of Industrial Relations Act 1996 – claim of obligation to pay monies pursuant to Transport Industry - Redundancy (State) Contract Determination – no proceedings seeking payment before Commission - orders by way of declaration sought – Commission lacks power to make orders sought – Commission cannot interpret industrial instruments other than in connection with a matter before it - application for declaratory relief dismissed – dispute earlier unsuccessfully conciliated before Commission – Commission has no power to act further in relation to the dispute – file closed. Legislation Cited: Industrial Relations Act 1996 s.175, 332 Transport Industry - Redundancy (State) Contract Determination Cases Cited: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v BlueScope Steel (AIS) Pty Limited [2011] NSWIRComm 1049 Kellogg (Australia) Pty Limited v National Union of Workers (1998) 89 IR 391 Category: Principal judgment Parties: Transport Workers' Union of NSW – applicant Veolia Environmental Services (Australia) Pty Ltd – respondent Representation: Mr T Warnes (Transport Workers' Union of NSW) – applicant Mr J V Murphy (counsel) – respondent Solicitors: M+K Lawyers, solicitors – respondent File Number(s): IRC 713 of 2014 Judgment 1. A notification was made to the Commission pursuant to s.332 of the Industrial Relations Act 1996 ('the Act') by the Transport Workers Union of NSW. ('the TWU'). The TWU asserted that it was in dispute with Veolia Environmental Services (Australia) Pty Ltd. ('Veolia') 2. The dispute was said to concern the failure of Veolia to pay a severance payment to a member of the TWU, Up Shot Pty Ltd, ('Up Shot') upon Veolia terminating a contract of carriage with Up Shot.. The sum that the TWU asserted ought to have been paid to Up Shot was agreed to be in the order of $40,000. A claim for orders that the sum be paid, pursuant to s.380 of the Act, was and is not before the Commission, and for reason of the statutory limitations set out in s.379 of the Act could not be. 3. The matter came before the Commission (Tabbaa C) on 10 October 2014. The matter was not able to be resolved in conciliation. The TWU sought that the matter be arbitrated. Veolia asserted a want of jurisdiction in the Commission to deal with the application. 4. Tabbaa C made directions that the parties put on written submissions addressing the jurisdictional bar to the proceedings asserted by Veolia. Submissions were filed in October and November 2014 in accordance with the directions made. They went to in each party's case a discussion of the operation of the Act, but in neither case addressed the jurisdiction of the Commission to deal with the application actually before it. 5. The file was allocated to me on 3 March 2015. Upon reading the submissions I sought that the parties attend and address the Commission, as on an initial view, the matter before me was otiose, as no power lay to deal with the proceedings at all. The TWU had not articulated the orders it sought from the Commission. In response to the direction to attend, the TWU asked that the matter be held over until the return from leave of the advocate particularly concerned with the application, which request was granted. 6. The parties appeared before the Commission on 30 April and were heard on the question of power. 7. I directed that the TWU articulate in writing the order it actually sought in the proceedings and file and serve it by 8 May 2015. That was done. 8. Two Orders, put in the alternative, were sought by the TWU in the proceedings before the Commission. The TWU sought that the Commission make one of the following Orders: 1. 'The Commission is, pursuant to s.175 of the Act, able to determine a question of the application and/or operation of the Transport Industry – Redundancy (State) Contract Determination to particular instances whilst performing its functions under s.332(1).' OR 1. 'The Commission may arbitrate any 'disagreement or dispute' concerning the implementation of the Transport Industry – Redundancy (State) Contract Determination pursuant to clause 7(i)(b) on application by a carrier or principal contractor.' 1. It is again to be emphasised that there are no proceedings before the Commission seeking that Veolia pay Up Shot any sum, and given the quantum involved there could not be any such proceedings before the Commission. No evidentiary case is before the Commission on which basis the Commission could form any view as to whether the termination attracted a severance payment under the Determination. 2. The Orders sought are sought independent of any application of substance. What is sought is, demonstrably, declaratory relief alone. 3. There is no power in the Commission to make the Orders sought. 4. That is apparent on the face of the Act. Section 175 provides that the Commission may, for the purposes of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument. 5. It necessarily follows that the Commission may not determine questions of interpretation or application unless the precondition of there being a function to exercise in connection with a matter before it is met. 6. That is, as I say, patent on any reading of s.175. It is also so on the basis of established authority. 7. In Kellogg (Australia) Pty Limited v National Union of Workers (1998) 89 IR 391 Hungerford J held: (at 392): "...Although the arbitration was before the Commission, moved by Kellogg pursuant to s.136(1)(d) of the Act to '...make any other kind of order it is authorised to make...' in relation to the dispute, it was clear that the relief sought arose in the dispute proceedings but was in the nature of a declaration as to the right of Kellogg to implement its proposals having in mind the provisions of the award. By reason of s.154 of the Act, relief of that nature is exclusively within the declaratory jurisdiction of the Commission in Court Session..." 1. As Connor C held in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v BlueScope Steel (AIS) Pty Limited [2011] NSWIRComm 1049: "The Commission may, for instance, make an order for reinstatement under ss.84(1) or 137(1) and, in the process, using s.175, interpret any instrument relevant to that order. But it may not make an order of interpretation to stand alone since there is no authority for it..." 1. What I am being asked to do in this matter is make a declaration of jurisdiction, an 'order of interpretation' to use Connor C's words. There is no power to do so. 2. It is not a question of whether what is said in the Orders sought by the TWU is a correct articulation of the law or is not. The matter does not get to that point. The Commission is not empowered to give declaratory relief, including making declarations about its jurisdiction, in the abstract, that is, absent a concrete matter before it in the determination of which the Commission may, if it is necessary, rule on the correct meaning of a statute or industrial instrument. That is not, I repeat, the case here. Disposition of the matter 1. I am unable to and decline to make the Orders sought by the TWU. 2. As the dispute has been conciliated by the Commission without success, and no application for arbitration of the subject matter of the dispute is or could be before the Commission, I propose to dismiss the application before me and close the file on the matter. 3. The order that I make in this matter is as follows: 1. The application for Orders is dismissed and the proceedings are concluded. PETER NEWALL 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: 15 May 2015