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/96 S Print N5373
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1988
s.45 appeal to Full Bench from the decision and orders
of Commissioner Jones at Sydney on 23 August 1996 in
C Nos. 21174 of 1993 and 31741 of 1994
Serco GM Pty Ltd and another
(C No. 22938 of 1996)
Electrical, Electronic, Plumbing and Allied Workers Union of
Australia
and
Pacific Architect & Engineers Pty Ltd and others
(C No. 21174 of 1993)
Electrical, Electronic, Plumbing and Allied Workers Union of
Australia
and
Enmore Industries and others
(C No. 31741 of 1994)
PLUMBING INDUSTRY (NEW SOUTH WALES) (ROPING-IN NO.7) AWARD 1996
PLUMBING TRADES (SOUTHERN STATES)(ROPING-IN NO.6) AWARD 1996
ELECTRICAL CONTRACTING INDUSTRY (ROPING-IN NO.3) AWARD 1996
Various employees Various industries
SENIOR DEPUTY PRESIDENT MARSH SYDNEY 27 SEPTEMBER 1996
Stay order application
DECISION
This is an application by Serco GM Pty Ltd and Serco Australia Pty
Ltd (the appellants) brought pursuant to s.45(a) of the Industrial
Relations Act 1988 (the Act) for the stay of a decision made by
Commissioner Jones in the form of awards dated 23 August 1996.1
The awards arise out of a decision issued on 23 August 19962. The
awards made are entitled Plumbing Industry (New South Wales)
(Roping-in No.7) Award 1996, Electrical Contracting Industry
(Roping-in No.3) Award 1996 and Plumbing Trades (Southern
States)(Roping-in No.6) Award 1996 and seek to standardise award
coverage.
While the issue of existing award coverage prior to the making
of the awards is a matter of contention, it appears that a
disparate pattern of coverage including minimum rates, paid rates
and award free employees coexisted.
The grounds of appeal include the ground that Commissioner
Jones erred in the making of the awards in so far as he misapplied
or misconstrued the proper application of the Act and the Wage
Fixing Principles set out in 3.4 First Award and Extension to an
Existing Award.3 A further ground relied upon is that the
Commissioner erred in applying conventions of industrial
principle.
The application for a stay was opposed by the Communications,
Electrical, Electronic, Energy, Information, Postal, Plumbing and
Allied Services Union of Australia (the respondent) on the grounds
that the application of the tests for the granting of stay orders
were not met. In this regard the respondent sought to rely upon
the tests of stay orders as set out in a recent decision of the
Industrial Relations Court4.
The appellants rejected the notion that the Commission
introduce "foreign" tests to apply to stay orders in so far as the
tests are distinguishable from the tests traditionally and
consistently applied by the Commission. Those tests relate to the
substantiation of an arguable case as to merit and public interest
and the balance of convenience.
As a preliminary matter it is necessary to have regard to the
relevant tests to apply to the grant of a stay. Essentially the
respondent relied upon a recent Full Court decision which was
considering or reviewing a decision of North J in relation, inter
alia, to a stay application. His Honour had granted a stay of
part only of two awards of compensation made by a Judicial
Registrar on 25 March 1996.
The test applied by North J, as upheld by the Full Court, stated:
"...the tests requires the applicant to positively persuade the
Court to intervene to stay an order of which the recipient has
been the beneficiary. It might be that the test does not
require exceptional circumstances to be shown but certainly
some good reason for the Court to intervene must exist.
In this respect, the Full Court...in different, but not
relevantly different, circumstances has posed the test as being
whether, at the end of the day, the Court regards it as
appropriate to intervene to prevent, for a limited time, the
recipients of the order from obtaining the benefits of that
order: Re Printing and Kindred Industries Union; ex parte
Nationwide News Pty Ltd (1994) 122 ALR 303."
The respondent relied also upon another authority relied upon
by the Full Court of the Industrial Relations Court of Australia5:
"In our opinion it is not necessary for the grant of a stay
that special or exceptional circumstances should be made out.
It is sufficient that the applicant for the stay demonstrates a
reason or an appropriate case to warrant the exercise of
discretion in his favour."6
The respondent in response to questioning summarised the position:
"Well, in my submission there is one test which is whether the
applicant has shown good reason. Now, some of the cases
approach that by splitting it into the practical considerations
and the arguable case. What my submission is is that the
arguable case aspect, if it is to be given any weight at all,
can only be given minimal weight in view of the authorities
outlined in the Basser case. In my submission that submission
is supported by what it said in Alexander v Cambridge Credit,
that the court will not speculate about the prospects of
success of a case."7
The tests applying to the granting of stay orders and the
weight to be attached to a particular test are exercised as an act
of discretion. Nothing has been put to me in this matter to
convince me that I should depart from the well established
principles of the Commission. In any event, I do not believe that
the application of these tests are so distinguishable from the
tests urged upon me by the respondent as to warrant a departure
from them in the circumstances of this case. On my reading of the
authorities which are relied upon by the respondent I am not
convinced that ultimately the approach adopted is relevantly
distinguishable from the tests applied by the Commission. As the
Full Court stated in the Cambridge Credit case:
"The Court has a discretion whether or not to grant the stay
and, if so, as to the terms that would be fair. In the
exercise of its discretion, the Court will weigh considerations
such as the balance of convenience and the competing rights of
the parties before it.."8
and the Full Court in Besser Industries:
"If applied by a judge when considering whether to stay an
order pending the review, it will, as we will shortly discuss,
involved the exercise of a broad discretionary power."9
However, it may be that upon further examination in different
circumstances a more concluded view can be reached.
In exercising my discretion in this matter I intend to rely on
the tests of arguable case and balance of convenience.
I intend to apply the conventional tests of this Commission to the
submissions put.
Turning to the arguable case test. On the outline of
submissions made I am prepared to conclude that an arguable case
has been made out by the appellants.
Without advancing a view on the likely prospects of success and
the merit of the case succeeding, I am nevertheless of the view
that the proper application of the First Award Principle,
especially in the context of making a first paid rates award,
together with the issues raised over the proper application of the
sections of the Act (especially s.88 and s.170UA) constitute an
arguable case to support the granting of the stay.
On the balance of convenience test the respondent submitted
that weight should be given to the fact that the award was made on
23 August 1996, that the notice period allowed under the Act had
almost elapsed before the appeal was lodged and as such the awards
have now been in operation for some weeks: this is distinguishable
from a decision of Senior Deputy President Polites10 whereby an
award was stayed the day after the order was made.
I make a number of observations:
First: a stay can only be granted once the order is in force.
Second: all parties have rights under the Act and Rules and
should not be prejudiced in bringing a stay if those rights are
exercised.
Third: the practicalities implied in the respondent's case are
potentially enormous.
Fourth: the time frame for the hearing of the stay is not unduly
unreasonable although clearly it is important in listing the
application that all parties have inconvenience to them minimised.
The respondent argued further that before the balance of
convenience can be adduced to favour the appellant, positive
evidence must be produced that there would be difficulty in
recovering the monies which would be impacted upon by the appeal
being upheld. This submission arises out of the Full Court
decision which states: "...evidence as to an individual's capacity
to re-pay an amount which a Court may order to be paid, is a
relevant consideration in the exercise of the discretion of a
Judge in determining whether or not to grant a stay or an order
for the payment of a sum of money."11 In the circumstances of the
case this means the appellant, in order to meet the balance of
convenience test, must provide positive evidence that the award
wage increases arising out of the Commissioner's award would not
be recovered from the employees in the event that the award was
quashed and the rates applying prior to the Commissioner's award
will apply.
The appellant rejected this approach and relied upon
authorities of the Commission and undertakings given by the
company to develop processes to pay all monies payable under the
award, if a stay is granted and the appeal is not upheld.
In this matter the appellants gave an undertaking that in the
event the awards were stayed, that in relation to employees who
received a pay rise out of the application of the awards, all
appropriate records of hours of work, penalty rates and so on
would be kept and proper accounting procedures established to
ensure the outstanding monies would be paid if the award remains
in force.
Understandably, the respondent was not able to give a
commitment on behalf of the employees affected that in the event
the awards did not remain in force following the appeal, that the
monies could be refunded.
In the decision of Senior Deputy President Polites he states:
"I then turn to the question of the balance of convenience. In
my view the balance of convenience is I favour of the granting
of stay order. Notwithstanding Mr Le Miere's eloquent
submission to the contrary, in my view the creation of a
requirement to pay monies under an award which is subsequently
quashed gives rise a undesirable consequence in the ordinary
course of events. I think that consequence namely the question
of attempting to recover monies, does arise in relation to the
order of MacBean DP. I am also of the view that other
