Industrial Relations Commission New South Wales Medium Neutral Citation: Andrew Geza Schwartz and NSW Ministry of Health [2017] NSWIRComm 1034 Hearing dates: 8 June 2017 Date of orders: 08 June 2017 Decision date: 08 June 2017 Before: Kite SC Chief Commissioner; Murphy C; Seymour C Decision: Leave to appeal refused Catchwords: Appeal – application for leave to appeal – leave refused Legislation Cited: Industrial Relations Act 1996 (NSW) s 10, s 11, s 19(5), s 146(2), s 163, s 188 Industrial Relations Commission Rules (NSW) 2009 Rule 6.8, Rule 6.9 Cases Cited: Commissioner of Police v Morris [2017] NSWIRComm 1010 Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Acciona Infrastructure Australia Pty Ltd and Ferrovial Agroman (Australia Pty Ltd t/as the Pacifico Acciona Ferrovial Joint Venture [2017] NSWIRComm 1029 Fire Brigades Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050 Industrial Relations Secretary v Wattie [2017] NSWIRComm 1007 Merrin v Mosman Municipal Council [2016] NSWIRComm 1048 Private Hospital Nurses (State) Award [1994] NSWIRComm 158 Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 Re Operational Ambulance Officers (State) Award [2011] NSWIRComm 61 Stead v The State Government Insurance Commission [1986] 161 CLR 141 Category: Principal judgment Parties: Andrew Geza Schwartz – Appellant NSW Ministry of Health - Respondent Health Services Union - Respondent Australian Salaried Medical Officers Federation (New South Wales) - Respondent Representation: Counsel: T J Dixon (Second Respondent) Solicitors: NSW Ministry of Health File Number(s): 2017/35278; 2017/35318 Decision under appeal Court or tribunal: Industrial Relations Commission of New South Wales Before: Newall C File Number(s): 2016/368289; 2016/372176 Decision(s) under appeal Judgment 1. Mr Schwartz (the appellant) has made two applications for leave to appeal and, if leave is granted, to appeal against an ex tempore decision of Newall C in Matters 2016/368289 and 2016/372176. The Commissioner determined that the appellant was not a party to either the Staff Specialist (State) Award or the Public Hospital Medical Officers Award ('the Awards') and was not entitled to be heard in award review proceedings pursuant to s 19 of the Industrial Relations Act 1996 (NSW) ('the IR Act'). 2. Consistent with an indication given at the directions hearing, when the matter came on for hearing the Full Bench required the parties to address the question of leave to appeal as a preliminary issue. Having considered those submissions, the Full Bench decided to refuse leave and announced reasons would be published in due course. Our reasons follow. The decisions at first instance 1. The appellant had sought to appear in proceedings in order to agitate what he asserted to be a significant public interest matter and seek to vary the Awards to address that matter. The Commissioner emphasised that the proceedings before him were (or at least purported to be) proceedings for review of the award pursuant to s 19 of the IR Act. 2. The Commissioner determined that s 19(5) of the IR Act prescribes the persons who may be heard on the review of an award and those persons are limited to relevant industrial organisations and "any other parties" to the awards. The Commissioner relevantly found that while the appellant had his name placed on the party cards to the Awards, being listed on a party card does not make one a party to an award. Accordingly, the Commission was precluded by s 19(5) from hearing the appellant in his own right as a natural person in the award review proceedings. 3. The Commissioner further determined that s 163 of the IR Act, which provides that the Commission is not bound by the rules of evidence and is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms, does not confer jurisdiction where no jurisdiction lies. No challenge is made by the appellant to that part of the Commissioner's decision. 4. The Commissioner heard a further submission by the appellant that the Staff Specialist (State) Award was an unfair contract pursuant to s 105 and s 106 of the IR Act. The Commissioner determined in a further ex tempore decision that awards are not contracts and accordingly are not amenable to the unfair contract provisions in Part 9 of the IR Act. That submission is not pressed on appeal. The questions raised by the appeal 1. The Applications for Leave to Appeal and Appeal dated 31 January 2017 detail in a rather discursive fashion the "grounds of appeal". Those grounds are a mixture of the arguments Mr Schwartz wished to advance in support of the variations he sought (in respect of which the Commissioner made no determination) and alleged errors with respect to the decision the Commissioner did make. In this last category may be identified three broad grounds of appeal. They are: 1. the Commissioner erred by not accepting the appellant as a 'party' for the purpose of s 19(5) of the IR Act, by virtue of his inclusion on the party card held in the Commission's Registry; 2. the Commissioner erred in denying the appellant procedural fairness, by failing to give him notice of the challenge to his 'standing' prior to the hearing and adequate time to prepare a response to that issue; and 3. the Commissioner erred in failing to consider matters of public interest. Principles on leave to appeal 1. The principles in relation to the grant of leave to appeal a decision of the Commission were summarised in Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16. In that matter the Full Bench stated at [10] and [11]: It is well settled that an appeal under the IR Act is an appeal in the strict sense: see s 191 of the IR Act and King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407. In such an appeal the appellate tribunal will only intervene to correct error: Aboud v State of New South Wales (Department of School Education) [1999] NSWIRComm 449; (1999) 92 IR 32. In the case of discretionary decisions it is not enough that the appellate tribunal would have come to a different view. It must be shown that the primary judge had failed to properly exercise the discretion committed to him: Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 and House v The King [1936] HCA 40; (1936) 55 CLR 499. It is important to bear these principles in mind in approaching the question of leave to appeal. The principles guiding the determination of leave were clearly set out in this often cited passage from Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263: [5] The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52]-[55] and Knowles at 381 - 382) and, subject to the requirements of s188(2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application" (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5]. 1. That statement has been approved since in a number of decisions: Merrin v Mosman Municipal Council [2016] NSWIRComm 1048 at [6]-[7]; Fire Brigades Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050 at [11]; Industrial Relations Secretary v Wattie [2017] NSWIRComm 2007at [11]. In the last mentioned decision the Full Bench added at [12]-[13]: Further, we reiterate the observations of the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 at 392, referring to the then-recently enacted provisions of the Act: "The provisions of the Act as to appeals give primacy to first instance decision making in a manner not earlier found in industrial legislation in this State. We note that the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 also held, immediately before the statement set out above, that an appeal bench should not substitute its own views as to a decision that was reasonably open at first instance. We endorse and apply that approach. Lastly, we add, as the Full Bench said in Fire Brigade Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050, that it will rarely be appropriate to grant leave to appeal unless an appellant can mount at least an arguable case pointing to appellable error. This is by no means a new element of the Commission's jurisprudence; it has long been held that an appellate body in an appeal of this nature will only substitute its own judgment where the first-instance decisionmaker has fallen into error of law, or made a finding of relevant determinative fact that is demonstrably wrong: Drake Personnel Ltd v Workcover Authority of NSW (1999) 90 IR 432 at 440. There will rarely be utility in granting leave to appeal where that degree of error cannot at least arguably be agitated on appeal. 1. These principles have been recently endorsed in Commissioner of Police v Morris [2017] NSWIRComm 1010 at [6] and Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Acciona Infrastructure Australia Pty Ltd and Ferrovial Agroman (Australia Pty Ltd t/as the Pacifico Acciona Ferrovial Joint Venture [2017] NSWIRComm 1029 at [10]-[11]. There was no suggestion that they should not be applied. We will apply them. Consideration - Party to the Awards 1. Section 19(5) of the IR Act permits "any other parties to the awards" to make submissions in award review proceedings. The appellant submits that the fact his name is on 'party cards' for the Awards establishes he is a 'party' for the purpose of s 19(5) of the IR Act. 2. Rules 6.8 and 6.9 of the Industrial Relations Commission Rules 2009 deal with 'party cards'. Section 11(2) of the IR Act provides that an application for an award can be 'made only by' an employer, an industrial organisation of employers or employees, or a State peak council. Further, only persons who can apply for an award may become a 'party' to any proceeding for the making of an award. It is noteworthy, given Mr Schwartz intention to seek variation of the awards, that s 17 of the IR Act (which deals with variations) expressly applies s 11 to variation proceedings. Mr Schwartz accepted he did not fall within the category of persons capable of making application for an award. He also accepted he could not be a party to the awards. 3. The appellant sought to circumvent this issue by reference to the words "any other parties", as they appear in s 19(5) of the IR Act, and the fact that his name appears on the "party cards". 4. As to the first part of this argument the appellant refused to acknowledge that the word "parties" in s 19(5) is qualified by the phrase "to the awards". In that way he was able to rely on the "party card" argument to establish he was a "party" even if not a party to the awards. The argument is contrary to the plain text of the subsection and must be rejected. 5. Moreover, the issue of "party cards" was specifically considered by the Full Bench in Re Operational Ambulance Officers (State) Award [2011] NSWIRComm 61, at [62] – [64]. That case was concerned with whether individual employees were or could be parties to an award. The Full Bench determined that s 11 of the IR Act informs the construction of Rules 6.8 and 6.9, such that the definition of "person" and "persons" in those Rules cannot include individuals. That decision is not called into question in this appeal. 6. This conclusion finds support in the obiter observation of Schmidt J in Private Hospital Nurses (State) Award [1994] NSWIRComm 158, that: The party card system is an administrative procedure designed to ensure that sufficiently wide notification is given of applications made to the Commission and has no status in this context. 1. The Commissioner did not fall into error by determining that the appellant was not a party to the Awards for the purpose of s 19(5) of the IR Act. Consideration – Procedural fairness 1. The appellant submits that he was denied procedural fairness, in that he was not given notice of the challenge to his "standing" prior to the hearing, nor adequate time to prepare a response to that issue. 2. First, the Commissioner was obliged to inquire into the basis of the appellant's status, as s 19(5) does not clearly confer a right of appearance on an individual. The Commissioner gave the appellant two opportunities to make submissions on that issue. It was open for the appellant to seek an adjournment of the proceedings, however he did not avail himself of that opportunity. 3. Secondly, with the benefit of time, the appellant has not introduced any additional argument that was not before the Commission at first instance. The 'party card' point was put by the appellant and rejected by the Commissioner. No unfairness arises in those circumstances. 4. Lastly, in light of our finding that the Commissioner correctly determined the appellant was not a party to the Awards, even a denial of procedural fairness would not avail the appellant: Stead v State Government Insurance Commission [1986] 161 CLR 141 at [145]: For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial. 1. In our view, the Commissioner did not deny the appellant procedural fairness but even if there was some procedural shortcoming it would not justify the grant of leave to appeal. Consideration –Public interest 1. The appellant submits that the public interest required that he be granted leave to appear in the award review proceedings. In the proceedings before the Commissioner, the appellant did not make detailed submissions as to the relevance and operation of such public interest considerations and the Commissioner did not address the issue in his reasons. 2. However on appeal, the appellant submitted that s 3A of the Health Practitioner Regulation National Law (NSW) informs the construction of the IR Act generally and is relevant to the question of leave to appeal under s 188 of the IR Act, specifically s 188(2). Section 3A provides as follows: In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 1. Section 5 of the Health Practitioner Regulation National Law (NSW) defines "NSW provision" as: (a) a provision that forms part of this Law because of a modification made by the Health Practitioner Regulation (Adoption of National Law) Act 2009; or (b) a NSW regulation. 1. Section 5 further defines "NSW regulation" as: a regulation made under section 247A', being section 247A of the Health Practitioner Regulation National Law (NSW). 1. The IR Act is not a "NSW provision" and accordingly s 3A of the Health Practitioner Regulation National Law (NSW) does not have application in the way the appellant contends to the exercise of the Commission's functions – whether granting a right to appear in proceedings or leave to appeal from a decision. 2. While not forming part of the Grounds of Appeal, the appellant further submitted at the hearing of the appeal that s 146(2) of the IR Act conferred jurisdiction on the Commission to grant him a right to appear. Sub-section 146(2) requires the Commission to take into account the public interest in the exercise of its functions. The NSW Ministry of Health and the HSU submitted that the general operation of s 146(2) does not supersede the specific question concerning standing to which the Commission must address itself under s 19(5). We accept those submissions and would add that the functions of the Commission can only be exercised through the mechanism of properly constituted proceedings. 3. The Commissioner correctly determined that the appellant did not have a right to be heard in the proceedings for review of the Awards and s 146(2) does not operate to confer a general discretion to grant such a right on public interest grounds. Conclusions – Leave to appeal 1. This appeal raises no new relevant issues of principle. Further, there is no demonstrated error in the decision of the Commissioner which would warrant appellate intervention. 2. It was for these reasons we refused leave. Order 1. The Full Bench confirms its order: 1. Leave to appeal 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: 20 June 2017