Transport Workers’ Union of New South Wales v Staples Australia Pty Limited [2016] NSWIRComm 11

Industrial Relations Commission New South Wales Medium Neutral Citation: Transport Workers' Union of New South Wales v Staples Australia Pty Limited [2016] NSWIRComm 11 Hearing dates: 26 July and 31 August 2016 Date of orders: 01 November 2016 Decision date: 01 November 2016 Jurisdiction: Industrial Relations Commission Before: Walton J, President; Tabbaa C; Murphy C Decision: We make the following orders:

(1) We confirm the grant of leave to appeal. (2) The appeal is dismissed. Catchwords: APPEAL – industrial dispute involving contract carriers – contracts of carriage terminated due to drivers refusing to perform work – application for interim order re-engaging contract carriers at first instance – Commissioner at first instance determined had no power to grant interim relief sought – leave to appeal granted – appeal – statutory provisions – proper construction of s 332 of the Industrial Relations Act 1996 – legislative history – no error found in decision below warranting upholding of appeal – Commissioner below had no power to grant interim determination pursuant to s 332(5) on the facts and circumstances of this matter – appeal dismissed Legislation Cited: Industrial Arbitration (Amendment) Act 1932 Industrial Arbitration (Amendment) Act 1948 Industrial Arbitration (Amendment) Act 1959 Industrial Arbitration (Amendment) Act 1979 Industrial Arbitration (Contracts of Carriage) Amendment Act 1987 Industrial Arbitration (Reinstatement Awards) Amendment Act 1978 Industrial Arbitration Act 1940 Industrial Arbitration Act, 1940-1968 Industrial Relations Act 1991 Industrial Relations Act 1996 Interpretation Act 1987 Cases Cited: A. Manson v St. Vincent's Hospital (No. 1) [1963] AR 627 Alcan (N.T.) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 Anthony Hordern and Sons Limited and others v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 Australian Consolidated Press v FMWU (No 1) 1973 AR (NSW) 181 Australian Education Union v Department of Education and Children's Services [2012] HCA 3, 248 CLR 1 Bank of New South Wales v United Bank Officers' Association and the Court of Industrial Arbitration (1921) 21 SR (NSW) 593 Certain Lloyd's Underwriters v Cross [2012] HCA 56; 248 CLR 378 Deltec International Courier Pty Limited v Transport Workers Union of Australia, New South Wales Branch (1993) 50 IR 341 Goodrich v Paisner [1957] AC 65 Greyhound Australia Pty Ltd v Transport Workers' Union of Australia, NSW Branch (1987) 21 IR 388 Griffiths (Inspector of Taxes) v J.P. Harrison (Watford) Limited [1963] AC 1 Hill v Director-General of the Department of Education and Training (NSW) (1998) 85 IR 201 Military Rehabilitation and Compensation Commission v Benjamin James Edward May [2016] HCA 19 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 News Ltd. and Another v Printing and Kindred Industries Union (New South Wales Branch) and Another [1975] 1 NSWLR 151 North West County Council v Dunn (1971) 126 CLR 247 NSW Teachers Federation v Public Service Board (1968) AR 507 Plaintiff M47-2012 v Director General of Security [2012] HCA 46 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Rail Corp (NSW) v Brown [2012] NSWCA 296; 82 NSWLR 318 Re Australasian Meat Industry Employees Union, New South Wales Branch & Ors ex parte Metropolitan Meat Industry Board [1972] 1 NSWLR 259 Re Australian Iron and Steel Limited - Reinstatement of Dobson and others (No. 1) 1958 AR 192 Re Dispute - Broken Hill Pty Co Limited Re Bonus Payments [1971] AR 754 re Dispute at Broken Hill Pty. Co. Ltd. Steelworks, Newcastle (No. 1) [1961] AR 1 Re Dispute - Broken Hill Pty. Co. Ltd. Re Bonus Payments (No. 2) [1971] AR 754 (No. 2) [1971] AR 754 re Dispute; Commonwealth Engineering (N.S.W.) Pty. Ltd. & Clerks' Union re Over-Award Payments (No. 2) [1965] AR 319 Re Federated Engine Drivers & Firemen's Association and Sydney Coal Lumpers' Union re Maritime Services Board (1964) AR 744 Re Ranger Uranium Mines Pty Ltd; ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 456 Shell Refining (Australia) Pty Ltd v The Federated Engine Drivers' and Firemen's Association of Australasia (N.S.W.) [1977] AR 926 State of New South Wales v Chapman-Davis [2016] NSWCA 237 Sydney Water Corporation and Australian Services Union (New South Wales and Australian Capital Territory Branch) [2005] NSWIRComm 305; (2005) 146 IR 388 Transport Workers Union of Australia New South Wales Branch v Conaust Limited (1992) 46 IR 18 Transport Workers' Union of New South Wales v Staples Australia Pty Limited [2016] NSWIRComm 1019 Wright v. Walford [1955] 1 Q.B. 363 Category: Principal judgment Parties: Transport Workers' Union of New South Wales (Appellant) Staples Australia Pty Limited (Respondent) Representation: Counsel: A L Howell (Appellant) J J Fernon SC (Respondent)