Industrial Relations Commission New South Wales Medium Neutral Citation: New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union and Kempsey Shire Council (No 3) [2016] NSWIRComm 7 Hearing dates: 14 December 2015 and 5, 8 and 12 February, 7 March, 19 April and 6 May 2016; and, 20 May and 3 and 8 June 2016 (written submissions) Date of orders: 01 July 2016 Decision date: 01 July 2016 Jurisdiction: Industrial Relations Commission Before: Walton J, President; Stanton C; Newall C Decision: The Commission will not issue a decision in relation to the arbitral proceedings Catchwords: INDUSTRIAL DISPUTE – arbitral proceedings – evidence taken and decision reserved – whole of dispute settled while decision reserved – inappropriate to issue a decision in relation to proceedings which have wholly resolved – no decision on arbitral proceedings will issue Legislation Cited: Civil Procedure Act 2005 Industrial Relations Act 1996 Cases Cited: Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 Australian Services Union, New South Wales Branch v Sydney Water Corporation [2001] NSWIRComm 100 Broken Hill Chamber of Commerce and CFMEU (NSW Branch) (No 3) [2002] NSWIRComm 303 New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union and Kempsey Shire Council [2015] NSWIRComm 26; (2015) 253 IR 154 Newcastle City Council and Bevan [2001] NSWIRComm 338; (2001) 120 IR 121 Category: Principal judgment Parties: New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union (Notifier) Kempsey Shire Council (Respondent) Representation: Counsel: J Nolan (Notifier) A Britt (Respondent) Solicitors: Carroll & O'Dea Lawyers (Notifier) Local Government and Shires Association of New South Wales t/as Local Government NSW (Respondent) File Number(s): 2016/22127 (previously IRC 879 of 2014) decision 1. These proceedings originated in a notification pursuant to s 130 of the Industrial Relations Act 1996 ('the Act') by the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union ('the Union') of a dispute with Kempsey Shire Council ('the Council'). 2. The proceedings, and the dispute as a whole, sprang from a decision taken by the Council on 30 June 2013 to alter an aspect of its rostering arrangements affecting, or potentially affecting, employees engaged pursuant to the provisions of the Local Government (State) Award ('the Award'). 3. In earlier proceedings associated with the instant dispute, the Union asserted that the new rostering arrangement was itself inconsistent with the terms of the Award. That assertion was incorrect, as a Full bench of the Commission held in New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union and Kempsey Shire Council [2015] NSWIRComm 26; (2015) 253 IR 154 (handed down on 8 September 2015). 4. While that decision also dismissed any suggestion that the new rostering arrangement was a breach of the Award, vexed questions nevertheless remained. 5. Those questions were the subject of arbitral proceedings before the same Full Bench in December 2015 and February and March 2016. On 7 March 2016, the Commission reserved its decision. 6. Subsequently, further conciliation, by the consent of the parties, was conducted by the President. 7. That further conciliation resulted in the whole of the dispute being resolved. 8. On 6 May 2016, the terms upon which the dispute was, by consent, said to be resolved were placed on record before the Commission. As Mr J Nolan, counsel for the notifying Union, expressed them, those terms were as follows: 1. The Union would withdraw items 1 and 2 of its letter dated 17 March 2016 and support a resolution of its members affected to withdraw those items (note that steps to implement this part of the agreement have already been taken); 2. Following the withdrawal of the matters referred to in (1) above the Council would withdraw its letter of 5 April 2016; 3. Employees in the service of the Council, or who were in service as at 30 June 2013 and then promoted in service since that date, who work a 19 day month or a 9 day fortnight, shall be grandfathered to have the benefit of the pre 30 June 2013 policy with respect to affected rostered days off; and 4. In the event that an industry award made in 2017 contains a provision to the effect that employees shall receive an additional day off where a rostered day off coincides with a public holiday, all employees who commenced service post 30 June 2013 and work a 19 day month or a 9 day fortnight will be re-credited with such day between 16 May 2016 and 1 July 2017. (We note that the same proposition applies if the existing Award is varied to the same effect at an earlier date.) 1. It was then submitted that the related dispute before the Commission in Matter Number 2016/111188 was to be discontinued by agreement. Further, in response to a question from the President of the Commission, the Union through its counsel gave an undertaking to the Commission there would be no industrial action in relation to the subject matter of these proceedings. 2. The actual dispute having been resolved in whole, the Union submitted, there was no need for the Commission to hand down its reserved decision. Indeed, it was submitted, to do so would be inappropriate. The decision of a Full Bench of the Commission in Newcastle City Council and Bevan [2001] NSWIRComm 338; (2001) 120 IR 121 ('Bevan') was cited in support of that proposition. 3. In Bevan, the Commission held (at [3]): As the issues raised by the appeal brought by Newcastle City Council are now, in the light of the agreement between the parties, moot and any decision by the Commission in the appeal would be 'academic', in that it would have no practical effect on the relations or relationship between the parties, we do not consider that this is an appropriate course. In any event, it is not consistent with the usual course traditionally adopted by the Commission in such situations: see, for example, Australian Services Union, New South Wales Branch v Sydney Water Corporation [2001] NSWIRComm 100. 1. The aversion of courts to determining issues which are moot, hypothetical or academic is long established: see, for example, Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 582. And that approach has been reflected in the jurisprudence of this Commission, not only in the Australian Services Union, New South Wales Branch v Sydney Water Corporation [2001] NSWIRComm 100, but also in, for example, Broken Hill Chamber of Commerce and CFMEU (NSW Branch) (No 3) [2002] NSWIRComm 303. There, a Full Bench of the Commission held (at [7]-[8]): 7 It becomes necessary, in that factual context, to deal with the issue as pressed by the respondents to the appeal as to whether there is any utility in the appeal being heard. They submit that there is no utility in the appeal being heard as the orders challenged have expired, and that leave to appeal should be refused. Counsel for the appellants however submits in response that there is considerable utility in these proceedings continuing and the issues raised by them being determined. The bases upon which that submission is made are, shortly stated, the intrinsic importance of the issues involving (it is said) important constitutional questions, and also because of the potential for the decision of the Deputy President to be used as a precedent by, or before, other members of the Commission. 8 In the course of argument today reference has been made to authorities relied upon by the parties and also to another authority raised with the parties. The cases include Beitseen v Johnson, a judgment of the Full Court of the Federal Court reported at (1989) 29 IR 336 and Ex parte Metropolitan Meat Industry Board; Re Australasian Meat Industry Employees' Union, New South Wales Branch, a judgment of the Court of Appeal reported at [1972] 1 NSWLR 259. The Full Bench considers that those particular judgments provide useful assistance in the approach which is to be adopted in matters such as the present. We consider that since the issues here are now moot, the grant of leave in respect of them would result in the Full Bench giving an advisory opinion. We therefore consider as entirely appropriate the approach of the Full Federal Court in Beitseen v Johnson (at 337), where similar reticence was expressed as to the giving of an advisory opinion and hearing the appeal. We also note that the circumstances here are not dissimilar to those before the Court of Appeal in the Metropolitan Meat Industry Board case. 1. That decision was given, of course, in the context of an appeal, but in our view it is entirely proper and appropriate to apply the principle there expressed to these dispute proceedings. It should be noted, too, that such an approach sits in accord with the provisions of ss 56 to 58 of the Civil Procedure Act 2005. To invest resources in what would, in our view, be a sterile exercise is not appropriate. 2. The Council argued that a decision should issue, on these bases: 1. Given the history of the subject of the dispute and in particular the positions adopted by the Union, it was not inconceivable that the Union may again seek to ventilate the subject matter of the dispute with the Council; 2. The Union consistently claimed the subject matter had implications beyond the Council; 3. The Union consistently claimed the subject matter had implications in respect to future award negotiations in the local government sector; 4. Given the recent history of the Union's dispute notifications there was a public interest in the Full Bench determining the legal issues which arose in the proceedings; and 5. The parties and the Commission devoted significant time and effort to addressing a series of legal issues and there was a general public interest in having those issues resolved. 1. Certainly it is true that the Union adopted, at least before its present counsel was briefed, an approach to litigation in this matter which was, to use generous terms, confused, haphazard and contradictory. 2. The Commission, however, operates as a practical jurisdiction giving practical answers to real industrial questions. The dispute has now been resolved, and certain undertakings have been given, as noted above. It is not open to the Union to resile from those undertakings. That disposes, substantially, with the arguments raised by the Council set out at [14] above. 3. There is a further reason to reject those contentions. 4. It is true that the issue ventilated in the arbitral proceedings may have implications beyond the Council and may affect future negotiations for the industry award. However, on proper analysis we consider that these are factors which, in fact, weigh against the issuing of a decision in this matter. 5. The negotiations for the making of a new award in the local government industry, after the expiry of the nominal term of the existing Award in 2017, will, as experience indicates, involve compromise. The claims pressed by the Union in this matter will necessarily form part of the mix in such a process as the parties seek to negotiate the next generation of conditions in the Award. The fact that most other councils covered by the Award provide a benefit akin to that sought by the Union in this case will no doubt be a consideration in that negotiation process (in terms, for example, of relative cost) but that is only one of many considerations which might arise. We consider the better course is for the resolution of the issue the subject of the present arbitration to find a resting place in that context, particularly where the claim can be balanced against the entirety of claims and counter claims for a new award, or, in the case of an arbitration of conditions for a new industry award, for the determination to be made in the light of the entirety of contested and non-contested conditions proposed for the new award. 6. If the arrangements now applying throughout most of the industry are to be disturbed or entrenched in an award then it is much better that that be done as part of an overall review of the Award and not as part of an isolated dispute, let alone one now settled. 7. These factors also indicate why it is highly unlikely that any other council would seek to alter the benefits they provide their employees with respect to rostered days off before the processes leading to the making of a new industry award in 2017. 8. As to the last issue argued by the Council as a basis for a decision to issue, it is true that the Commission and the parties have invested substantial resources in the proceedings. That is often the case in matters which settle or are resolved at a late stage. It is not of itself a reason to invest further resources in formulating and handing down a decision, the more so if there were any possibility that the decision might be taken, by one or other party, to embarrass the result that has been achieved by agreement. 9. For these reasons the Commission will not hand down a decision in the arbitral proceedings. ********** 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: 01 July 2016