Public Transport Corp, Ex parte; Re Ausn Rail, Tram & Bus Industry Union & Ors M68/1995 [1995] HCATrans 420 (29 November 1995)

TRANSCRIPT

OF PROCEEDINGS

AUSCRIPT

Victoria

Level 7

451 Little Bourke St

Melbourne VIC 3000

GPO Box 1114J

Melbourne VIC 3001

Phone [phone]

Fax [phone]

O/N 6374

IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No M68 of 1995

RE: AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION; AUTOMOTIVE FOOD METALS, ENGINEERING, PRINTING & KINDRED INDUSTRIES UNION; COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA

ex parte:

PUBLIC TRANSPORT CORPORATION

DAWSON J (in Chambers)

AT MELBOURNE, WEDNESDAY THE 29TH DAY OF NOVEMBER 1995

DR C. JESSUP QC: I appear for the prosecutor with my learned friend, MR KAUFMAN.

HIS HONOUR: Yes, Dr Jessup.

MR H. BORENSTEIN: I appear for some of the second respondents. Perhaps I could indicate to your Honour, I appear for all of the second respondents except for the Automotive, Food Metals and Engineering, Printing & Kindred Industries Union.

HIS HONOUR: Yes.

MR GRANO: I appear for that particular union, sir.

HIS HONOUR: Thank you, Mr Grano. Yes, Dr Jessup. This matter has been before this Court once, has it not?

DR JESSUP: I beg your pardon?

HIS HONOUR: This matter has been before this Court once?

DR JESSUP: Yes, it has and now it is before it again.

HIS HONOUR: For the moment.

DR JESSUP: Yes. Just fleetingly, your Honour. Your Honour, in this particular matter there are a number of issues; perhaps if I could mention the two main ones. The first one does arise from a State employee's case and it involves the question of whether by requiring the employer to pay redundancy pay, that oversteps the implied limitations. Because that is what the Commission did in this case; the Commission did not make an order which operated, as it were, in specie on the act of termination, but it required payment to be made on the event of redundancy or in the event of redundancy, as the Commission understood it. Now, if your Honour would be assisted by it, we might draw your Honour's attention to something which the Full Court or which the majority said in that case at page 630.

HIS HONOUR: What is the citation?

DR JESSUP: 631.

HIS HONOUR: In the AE - - -

DR JESSUP: Re AEU, yes, your Honour.

HIS HONOUR: Yes. Yes?

DR JESSUP: At page 631 at line 17, their Honours said:

However, the rejection of the arguments put forward by the prosecutor and the intervening State's arguments ...(reads)... to minimum wages and working conditions which take account of special functions.

Etcetera. And then in the paragraph above that - - -

HIS HONOUR: Yes.

DR JESSUP: - - - at about line 12:

If the prosecutor had been able to demonstrate, and this it has demonstrably failed to do, that the ...(reads)... case by holding that the Commission had no power to make the relevant dispute findings.

HIS HONOUR: Yes.

DR JESSUP: What we say, your Honour, is that the question which arises in this area is whether the implied limitation is only concerned with awards which operate in terms to stop the redundancy taking place at all, or whether it applies to awards in relation to redundancy. If the latter, we would submit that the Commission has gone too far in this case, but as your Honour will have seen from the Commission's decision, it took the view amongst other things that this award did not overstep the limitation.

This case also raises a question of whether the Public Transport Corporation is to be assimilated with the State of Victoria, for relevant purposes. And the Commission also held that it was not. I do not know whether your Honour desires to hear from me on that, but in due course we will submit that the terms of the Act under which it operates make it very clear that it is to be assimilated with the State of Victoria.

The other general question is not one arising under Re AEU, your Honour, but it is an ambit point arising by reference to a consideration of the logs of claims which provided the foundation for the making of these awards. Now, in the light of the way in which your Honour has dealt with the other matters, if your Honour is disposed to remit this, there is nothing we can say against that course.

HIS HONOUR: Yes. The point was also taken previously that the employment had ceased. Is that point taken?

DR JESSUP: Yes, that is really wrapped up in the second point that I made, your Honour, in the sense that there was ambit in the logs of claims to make redundancy pay awards if people were terminated, but not to make redundancy pay awards, we would contend - - -

HIS HONOUR: When their employment came to a natural end.

DR JESSUP: That is right, your Honour, yes.

HIS HONOUR: And also you were seeking a stay here, a stay in a form which I granted a stay previously, I think.

DR JESSUP: Yes. Yes, that is so. We would - - -

HIS HONOUR: Is there any reason why if the matter remitted, the application for the stay should not be remitted to the Industrial Relations Court?

DR JESSUP: Well, except that your Honour, we would need to make that application and the Court would need to - a Full Court - - -

HIS HONOUR: But you would have the precedent to - - -

DR JESSUP: A Full Court would need to assemble to hear it, and it is, your Honour, a case in which the - - -

HIS HONOUR: It is fairly obvious that the money would disappear if it were paid over.

DR JESSUP: Yes.

HIS HONOUR: Yes.

DR JESSUP: I mean, we would never get it back. It is like Myer v Federal Commissioner of Taxation, which your Honour decided, and the principles are well established, so if your Honour is disposed to order such a stay we would seek one and then the matter can be remitted, as it were, downstream of that.

HIS HONOUR: Yes, thank you, Dr Jessup. Mr Borenstein?

MR BORENSTEIN: Your Honour, my clients would seek a remitter to the Industrial Relations Court. I do not take any time up with that having regard to what your Honour has already said. I would like to be heard on the question of stay, however, if your Honour is going to deal with that. Your Honour, the submissions that my clients seek to make in relation to the stay is that the position presently is not the same as it was when the matter first came before your Honour the first time around. On that occasion, the award that was made in favour of these apprentices was very substantial, many thousands of dollars, and one might readily have thought that it was an unfair burden to impose on the employer to pay that money - to pay that money over at that time.

On this occasion, your Honour, the amount that is being paid is far less. To some of the apprentices it is 6 weeks' pay, to the others it is 8 weeks' pay. There is no suggestion in any of the material, no indication at all, not even a hint, that there would be any difficulty on the part of the employer in recouping those funds if the need arose, and your Honour will recall when your Honour dealt with the FCT and Myer's case that that was something that had to be demonstrated by the appellant in that case. That of course was an appeal, not an application for prerogative relief, and in relation to prerogative relief, of course, the authorities tell us that there is a very stringent requirement to be discharged by the prosecutor in order to secure a stay of an order.

No material has been put forward to suggest that the beneficiaries of this order ought not to have the fruits of their victory in the normal way. There is no hint that these people might not be able to pay the money back if the need ever arose. On the other hand, if they are successful on the appeal then of course it would not have to be paid back and they would have had the benefit to which they are entitled in the interim. So my submission is, your Honour, that in the absence of any evidence at all from the prosecutor that there is any risk, let alone a real risk, that they would not recoup these funds, they being a much smaller amount than last time, it is my submission that there is not material before the Court upon which the Court ought to move to grant the stay to the prosecutor at this stage.

HIS HONOUR: Yes, thank you, Mr Borenstein. Mr Grano? Do you have anything to say?

MR GRANO: Sir, equally, with respect to the remitter, sir, my client accepts that the course of action that you propose would be one which is agreeable to them. On the matter of the stay, sir, my client would be in agreement with the position taken by Mr Borenstein that it is important that after such a long time since these people have been in fact retrenched, that being three years in the case of the 1991 apprentices and two years in the case of the other that it is appropriate that given that they have received the award, that they benefit from that award. And there are mechanisms available through the State to obtain that money if that has to be retained, if the award is eventually shown to be beyond the limitations of the Commission.

So, sir, I cannot go beyond further what Mr Borenstein has said, but that is the position that I wish to put before you.

HIS HONOUR: Yes, thank you, Mr Grano. Dr Jessup, on the question of stay?

DR JESSUP: Your Honour, your Honour obviously has read paragraph 37 of the affidavit and the undertaking which we are instructed to give. The beneficiaries of the order will be protected, not only as to the moneys themselves but as to the passage of time by the undertaking to pay interest and in our submission, if a stay is granted on that undertaking, there is a certainty that one way or the other, they will be no worse off. On the other hand, if a stay is not granted, there is a distinct possibility that our client will be worse off in the sense that of the nature of things - - -

HIS HONOUR: What do you say in relation to Mr Borenstein's submission that there is no material before me in this matter to indicate that the money will not be recoverable if eventually the matter is decided in your favour?

DR JESSUP: Your Honour, it is not that it will not be recoverable in point of law, it is just that in the nature of things, to have to recover small amounts of money from individual people - a good deal of money from our client's point of view, your Honour, but small amounts of money from individual people - will be cumbersome and in the nature of things, there is no doubt a deal of it that we will not get. There is no guarantee that they will still be in our employ at the time, we cannot require them to remain there; if they wish to resign and take another job, go overseas, move interstate - of course. My learned junior reminds me they are not in our employ, and that is indeed the whole basis of this case.

So, the question of recovery from them will be far more complicated than if we were simply able to deduct moneys from future pay or something of that kind. We would have to find out where they were and track them down and issue legal proceedings in all manner of Local Courts, no doubt, and have them served, possibly under the Service and Execution of Process Act. So, your Honour, there does not need to be material, in our submission, because all of these things are matters of which your Honour can take judicial notice.

HIS HONOUR: I think the appropriate thing to do is to make an order remitting the whole matter, including the application for the stay, to the Industrial Relations Court, and I make the usual order. That completes the matters, does it not?

MR GRANO: Yes, your Honour.

HIS HONOUR: Is there anything else, gentlemen?

AT 10.35 AM THE MATTER WAS ADJOURNED

INDEFINITELY