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Skilled Rail Services Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers [2005] WAIRComm 3372 (16 December 2005)

Last Updated: 9 July 2007

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES SKILLED RAIL SERVICES PTY LTD

APPLICANT

-and-

RESPONDENT

CORAM THE HONOURABLE M T RITTER, ACTING PRESIDENT

HEARD THURSDAY, 15 DECEMBER 2005

DELIVERED WEDNESDAY, 21 DECEMBER 2005

FILE NO. PRES 8 OF 2005, PRES 9 OF 2005, PRES 10 OF 2005

CITATION NO. 2005 WAIRC 03372

CatchWords Industrial Law (WA) – Applications to stay operation of interlocutory orders – Applications for new awards - Jurisdiction of Commission – Finding – Public interest – Expediting hearings pending legislative change - Bias - Whether an appeal is instituted – Stay of order principles – Consequences granting/not granting stay orders - Industrial Relations Act 1979 (WA) (as amended), s7, s32(2), s49(2a), s49(11) –  Workplace Relations Amendment (Work Choices) Bill 2005  – Workplace Relations Amendment (Work Choices) Act 2005

Decision Applications dismissed Appearances

Applicant Mr S Ellis (of Counsel), by leave

Respondent Mr D Schapper (of Counsel), by leave, and with him Ms J Boots (of Counsel), by leave

Reasons for Decision (Ex tempore, Revised from the Transcript)

The Applications

1. Before the Commission are three applications seeking a stay of the operation of decisions which have been made at first instance pending the hearing of appeals which have been made against each of those decisions. The applications are each made under s49(11) of the Industrial Relations Act 1979 (WA) (as amended) (the Act).
2. Two of the appeals and the seeking of the stays relates to an application for an award which is known as A3 of 2005. (These are applications PRES 8 and PRES 9 of 2005). The other appeal relates to an application for an award which is known as A5 of 2005. (This is application PRES 10 of 2005).
3. Application A3 of 2005 has been subject to proceedings before Commissioner Wood and, on 2 November 2005, Commissioner Wood set out some reasons in not dismissing the application for an award but suggesting that further things ought to take place before an award could be made and that the parties meet with respect to that.
4. In his reasons for decision, Commissioner Wood sets out that the application is for a new award titled “The Iron Ore Production and Processing (Engine Drivers) Award”. He says that the application was filed in the Commission on 29 March 2005 by the respondent. The application named as respondents Integrated Group Ltd, Skilled Group Ltd and Skilled Rail Services Pty Ltd.
5. The application seeks an award to cover engine drivers working on the BHP Billiton Iron Ore Pty Ltd (BHPB) rail system who are not employed by BHPB.
6. Application A5 of 2005, sets out in a schedule the intended scope of the award as follows:-
   

“This award shall apply throughout the State of Western Australia and shall apply to all engine drivers working on the railroad which forms part of the iron ore production and processing operations carried on in and around Dampier, Pannawonica, Tom Price, Paraburdoo, Marandoo and associated places and who are also employed by any labour hire firm, company, enterprise or undertaking.”

7. Proceedings in application A5 of 2005 have taken place before Commissioner Kenner.
   

The Facts

8. The background to what has happened in both applications since their filing is detailed in two affidavits of Mr Michael Borlase, both sworn today and received as evidence in the stay proceedings. There seems to be no dispute with respect to the matters contained in the affidavits of Mr Borlase and I have taken into account those matters.
9. With respect to applications PRES 8 and PRES 9 of 2005 the facts are as follows.
10. The application for the award was filed on 29 March 2005. There were hearings of the application before Commissioner Wood on 12 and 13 July 2005 and 11 and 25 August 2005.
11. On 2 November 2005 Commissioner Wood published reasons for decision. The Commissioner did not, as was argued on behalf of the present applicant, dismiss the application for an award and rejected arguments that it was not in the public interest to make an award. The Commissioner was not, however, satisfied as to the terms of the award as drafted by the present respondent. Accordingly, after going through the relevant clauses of the award in some detail, the Commissioner concluded his reasons as follows:-
    

“No order is to issue at this time from these proceedings. The parties are to consult over appropriate terms of the Award, given the comments in these reasons. If the Commission’s assistance is required then the parties can alert my Associate.”

12. On 4 November 2005, Mr Schapper as counsel for the respondent, sent an email to Mr Borlase, who had appeared on behalf of the applicant before Commissioner Wood, and others. The email set out a draft award which had been amended to reflect the reasons for decision of Commissioner Wood. The email requested advice as to when and where a meeting could take place to discuss the finalisation of the award. It was stated that this “will need to occur very shortly to avoid reference back to the Commission”. Mr Borlase did not receive this email until 10 November 2005 as the email address to which the email had been sent was a former email address of Mr Borlase.
13. On Tuesday, 15 November 2005 Mr Borlase received a copy of an email from Mr Schapper addressed to Mr Cordell Jackson, the associate to Commissioner Wood. In this email, Mr Schapper requested that the matter be set down for arbitration on an urgent basis. In the email, Mr Schapper alleged that it was apparent that the proposed respondents to the award were “attempting to delay the matter with a view to having the proposed federal legislation pre-empt the award in issue to these proceedings”.
14. In response to this email, Mr Borlase sent an email to Mr Schapper and Mr Jackson on 15 November 2005. In this email Mr Borlase indicated that the applicant had not received Mr Schapper’s email until 10 November 2005 and that they were still considering the reasons for decision of Commissioner Wood.
15. On the same date, that is 15 November 2005, Mr Borlase also received a copy of an email from Mr Ellery, who had represented Integrated Group Ltd, another respondent in the proceedings, to Mr Jackson. In this email, Mr Ellery indicated his client was prepared to meet the respondent to progress the matter and opposed the listing of the matter for arbitration.
16. On 16 November 2005 Mr Borlase received an email from Mr Jackson which was also addressed to Mr Schapper and Mr Ellery. In the email, Mr Jackson stated the Commission expected the parties to meet and confer about the matter. It was said that this should occur in the near future, and that if the parties could not resolve the issues the Commission would call the parties in for a conciliation conference to determine whether conciliation will be availing.
17. Mr Borlase then, on 16 November 2005, sent an email to Mr Schapper and Mr Ellery providing dates when Mr Borlase would be able to meet with Mr Schapper to discuss the matter as directed by the Commission.
18. On 18 November 2005 Mr Borlase received a copy of a letter from Mr Ellery to Mr Schapper in which Mr Ellery set out his client’s position in relation to the award as redrafted by Mr Schapper.
19. On 25 November 2005 Mr Borlase received a copy of an email from Mr Schapper which was responsive to the letter Mr Ellery had sent to Mr Schapper on 18 November 2005.
20. On 30 November 2005 there was a conciliation conference in relation to application A5 of 2005. There was, on that date, some discussion between Mr Borlase and Mr Schapper about the position of the applicant in relation to application A3 of 2005. Later that same day Mr Borlase received a copy of an email from Mr Schapper to Mr Jackson in which Mr Schapper stated that “The parties have agreed that further conciliation will be unavailing”. Mr Schapper requested the proceedings, as well as the proceedings in application A5 of 2005, to be set down for hearing. The email said that the matters needed to be set down and determined promptly. Mr Borlase, in his affidavit, takes issue with the contents of Mr Schapper’s email dated 30 November 2005 as to whether the applicant had agreed that the matter should be set down for hearing.
21. Accordingly, on 30 November 2005, Mr Borlase sent an email to Mr Jackson and others setting out the applicant’s position in relation to the matter. Essentially, the applicant did not agree that the matter should be set down for hearing and requested a directions hearing before the Commission.
22. On 2 December 2005 a letter was sent by Mr Jackson to Mr Borlase. The letter advised that Mr Jackson was instructed to advise that the Chief Commissioner had considered the request of the present respondent contained in the email of 30 November 2005. The letter said that the matter had been allocated to Commissioner Wood and was to be listed for further hearing and determination in December 2005. The letter said that the Commission would hear the parties in relation to any further public interest arguments and the merits of the application. The letter requested, by close of business on 5 December 2005, unavailable dates for the month of December 2005. The letter also indicated that application A5 of 2005 had been reallocated and would be dealt with by Commissioner Kenner.
23. On 5 December 2005 Mr Borlase sent a letter to Commissioner Wood which set out the applicant’s position about the further listing of the matter. The letter contained detailed submissions as to why it was not appropriate to list the application for further hearing. Included in the letter was a submission that courts should not expedite proceedings at the request of a litigant to avoid pending legislative reforms. This submission was made with respect to the impending enactment and operation of the  Workplace Relations Amendment (Work Choices) Bill 2005 .
24. On 6 December 2005 Mr Borlase received a notice of hearing from the Commission. The notice advised that the hearing was to take place before Commissioner Wood on 19 and 20 December 2005 at 10.30am.
25. On 6 December 2005 Mr Borlase sent an email to Mr Jackson requesting that the hearing dates be changed due to counsel’s unavailability. Mr Borlase did not receive any reply from Mr Jackson, and so on 13 December 2005 he spoke to Mr Jackson by telephone. Mr Borlase was then advised by Mr Jackson that he had not replied to the email because he had not been able to speak to Commissioner Wood who was uncontactable.
26. The balance of the affidavit of Mr Borlase set out his concern that the applicant did not have sufficient time to prepare for the hearing which was by then scheduled to take place on 21 December 2005 and on dates to be fixed in January 2006. The affidavit said that the applicant would have difficulty in making sure any witnesses that they wish to call are available to attend the hearing, bearing in mind the time of the year and that many of the applicant’s employees work on a fly-in/fly-out arrangement and live in various locations in Western Australia and other States. There was also concern that the proposed timetable by the Commission did not allow the Commission to inspect appropriate sites prior to the making of any new award.
27. In relation to application PRES 10 of 2005, the facts are set out in another affidavit of Mr Borlase which sets out the history of the proceedings in application A5 of 2005. That application was filed on 9 September 2005.
28. On 7 December 2005 the application was listed for directions before Commissioner Kenner. Mr Blackburn appeared as counsel for the applicant and Mr Borlase was in attendance. During that hearing, the applicant argued that the application should be brought on for an expedited hearing. Prior to the hearing on 7 December 2005 Mr Blackburn had prepared written submissions on behalf of the applicant. Amongst other things, those submissions addressed the issue of whether the Commission should expedite proceedings at the request of a litigant to avoid the pending federal legislative changes.
29. Following the hearing on 7 December 2005, at approximately 3.45pm on 8 December 2005, Mr Borlase received a telephone call from Ms Gemma Cross, the associate to Commissioner Kenner, advising that a decision relating to the proceedings on 7 December 2005 was to be handed down that afternoon. Mr Borlase advised Ms Cross that his client was to have been given the opportunity to respond to further material supplied by the present respondent, subsequent to the hearing on 7 December 2005 “and as we had not had that opportunity the decision should not issue”. Ms Cross said she would speak to the Commissioner about the matter. Ms Cross later telephoned Mr Borlase and advised that the Commission would allow the present applicant until 10.00am on 9 December 2005 to respond to the additional material. According to Mr Borlase’s affidavit, Ms Cross also advised that the Commission was not happy with the present applicant for leaving it until that stage to advise that they wished to respond to the additional material. Mr Borlase said that the present applicant had been granted the right by the Commission and the Commission had acted without consulting the present applicant as to its availability to attend to that matter.
30. On 8 December 2005 Mr Blackburn prepared supplementary written submissions which were sent by Mr Borlase to Ms Cross on 9 December 2005. These submissions primarily dealt with the issue of the expedition of the hearing and the appropriate principles to apply in relation to such an application, in the context of proposed legislative changes.
31. On 9 December 2005 at approximately 12.37pm Mr Borlase received an email from Ms Cross attaching the reasons for decision of Commissioner Kenner and a minute of proposed orders, as arising out of the directions hearing. Mr Borlase sent this material to his client who responded to him, amongst other things, about their concern as to the timetable given their current business activities, time of year, and the rosters and living locations of their employees.
32. Later on 9 December 2005, at approximately 3.47pm, Mr Borlase received another email from Ms Cross attaching an amended version of the reasons for decision of Commissioner Kenner. The amendment involved a minor correction of one line of the reasons as previously published.
33. The email from Ms Cross which was received at about 12.37pm on 9 December 2005 requested that if a party required a speaking to the minutes that they should advise of this by 4.00pm on 9 December 2005.
34. At about 3.52pm on 9 December 2005 Mr Blackburn sent an email to Ms Cross which had attached to it a document which was described as the present applicant’s Notification of Matters to be Dealt with at Speaking to Minutes of Decision dated 9 December 2005. This document contained a number of matters including the proposed timetable for the further hearing of the application, and that the Commission as presently constituted ought to not continue to hear the application on the ground of actual and apprehended bias. There was some particularisation of this submission.
35. At approximately 5.03pm on 9 December 2005 Mr Borlase received an email from Ms Cross indicating that a speaking to the minutes would occur at 4.30pm on 12 December 2005. This time was a time at which Mr Blackburn was unable to appear. This had been advised by Mr Blackburn in the document referred to in the previous paragraph. Due to Mr Blackburn’s unavailability, Mr Borlase was to attend at the speaking to the minutes which had been set down for 4.30pm on 12 December 2005.
36. On 12 December 2005 at approximately 9.45am Mr Borlase received another email from Ms Cross advising that the speaking to the minutes hearing scheduled for 4.30pm had been cancelled and attaching the final order and declarations of Commissioner Kenner.
37. On Tuesday, 13 December 2005 Mr Borlase received another email from Ms Cross relating to the dates for the final hearing of the proceedings. The email advised that the Commission intended to list the substantive matter over the periods 19 and 20 January 2006 or 31 January and 1 February 2006. The email requested counsel to advise of their availability for either of these dates, so that where possible the Commission could accommodate the parties.
38. On 13 December 2005 the applicant filed further and better particulars with respect to application A5 of 2005. These particulars were provided without prejudice to the appeal which has been filed in this matter.
39. The balance of Mr Borlase’s affidavit contained other matters which were not dissimilar to the matters set out earlier, with respect to the fairness and appropriateness of the hearing being determined on the dates set by the Commission.
    

Decisions Against Which Stays Sought

40. I raised with counsel for the applicant whether there was in each instance a “decision” which was properly subject to an appeal and therefore as to which the jurisdiction to order a stay, under s49(11) of the Act, could apply. To answer that point, he took me to each of the matters.
41. In relation to the first matter, PRES 8 of 2005, I was referred to the reasons of Commissioner Wood on 2 November 2005. The applicant’s counsel referred to the fact in the reasons for decision, the Commissioner did not dismiss the application for an award as the present applicant had argued he should do. It was argued that this was a decision for the purposes of the Act and that therefore there was a decision which could be appealed against and could enliven the jurisdiction under s49(11) of the Act. In my opinion, this submission ought to be accepted.
42. The terms “decision” and “finding” are defined in s7 of the Act. It is accepted by the applicant that the decision that was made was a “finding”. As a result, s49(2a) of the Act has relevance in relation to an appeal, because an appeal does not lie from a finding unless, in the opinion of the Full Bench, the matter is of such importance that in the public interest an appeal should lie. At this stage, a Full Bench has not had the opportunity to consider and has not formed an opinion of that type. Nevertheless I do not think that means I do not have jurisdiction to grant a stay, and, in that respect, I refer to the decision I made in John Holland Group Pty Ltd v CFMEU [2005] WAIRC 02983.
43. With respect to PRES 9 of 2005, the decision which the applicant seeks a stay of is the decision of the Commission as contained in two items. The first is the letter from the associate to Commissioner Wood to the parties dated 2 December 2005 which referred to a decision made by the Chief Commissioner that application A3 of 2005 had been allocated to Commissioner Wood and that Commissioner Wood would hear all matters in relation to it in December 2005. The second is a notice of hearing received a few days after that indicating that the hearing of the application would be on 19 and 20 December 2005. Again, I accept the applicant’s submission that what has occurred constitutes a decision for the purposes of the definition contained in the Act and therefore can be appealed against and form the subject of an application for a stay under s49(11) of the Act.
44. With respect to PRES 10 of 2005, the position is clearer with respect to there being a decision to appeal against. In that matter, as set out above, Commissioner Kenner made an order on 12 December 2005 and on the same date published reasons in support of the orders made. As stated by counsel for the applicant, it is orders (2) and (3) that the applicant seeks to have stayed. These orders are that the Commission:-
    

“(2) DIRECTS that the issue of whether an interim award should be made by the Commission pursuant to s 36A(2) and (3) of the Act be heard as a preliminary issue on 21 December 2005.

(3) DIRECTS as to par (2):

(a) that the applicant file and serve on the other parties and the intervenors further and better particulars of its notice of application as to the basis of the claims made by 13 December 2005.

(b) that the respondent file and serve on the applicant, the intervenors and other parties further and better particulars of its notice of answer as to par 6 to specify, with particularity, the existing terms and conditions of employment of employees of the respondent that are the subject of the herein application by 13 December 2005.

(c) that the intervenors file and serve on the other parties particulars of the rates of pay paid by the intervenors to employees who may be bound by any award in the terms of the herein application by 13 December 2005.”

Applicable Principles

45. In relation to the jurisdiction to grant an application for a stay, I earlier referred to my reasons for decision in the John Holland Group matter. At paragraphs [31] to [38] of that decision, I set out the principles which ought to apply in applications for a stay. I intend to apply those principles in these matters.
46. In particular, I rely on the observations made by Justice Dawson in Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (No 1) [1986] HCA 13; (1986) 160 CLR 220 where His Honour said at pages 222 and 223 that the discretion to “order a stay of proceedings is only to be exercised where special circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal ... Special circumstances justifying a stay will exist where it is necessary to prevent the appeal, if successful, from being nugatory ... Generally that will occur when, because of the respondent’s financial state, there is no reasonable prospect of recovering moneys paid pursuant to the judgment at first instance. However, special circumstances are not limited to that situation and will, I think, exist where for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed ...”.
47. I apply those observations with appropriate modifications to the current circumstances.
48. In each of the matters, the intent of the applications seeking the stays is to postpone the hearing of the applications for awards which have been set down, in one instance, on Monday and Tuesday of next week and, in the other instance, on Wednesday next week for an interim award, with further hearing dates then programmed for the second half of January next year.
49. In my view, in considering the situation, I ought to take into account what the current position is regarding what might be described as the fruits of the litigation. It seems to me that all that the respondent to the present applications have succeeded in obtaining at the moment is the commencement of the hearing of their applications next week. It is argued that there has been some expedition in listing the hearing of the matters next week.
50. In my opinion, the primary issue that I should consider in whether to grant these applications or not is the consequences of the stays being granted or not being granted and I will consider that later in my reasons.
51. Having regard to the purposes of the seeking of the stays, the focus is really on the second and third of the decisions being sought to be appealed against. The reason for that is, although the first decision made by Commissioner Wood not to dismiss the application for an award is part of the relevant background and it is true, as the applicant’s counsel indicates, that if that matter was decided in favour of the present applicant, then that would have been the end of the matter, it seems to me that the current purpose is to set aside the hearing dates next week and that therefore the decision made not to dismiss the application has a lesser significance obviously than the decisions made to allocate the matters to Commissioner Wood and list them for hearing next week.
    

Applicant’s Argument and Consideration

52. Mr Ellis, for the applicant, set out a number of matters which he said were common to most, if not all, of the applications and were of concern to the applicant and were such that should persuade me that there were serious issues to be tried in the appeals. I will go through those in a moment, but should indicate that I do accept that the appeals raise arguable issues, though not all of them are perhaps as arguable as others, but it seems to me that there is an arguability about the appeals.
53. Firstly, in relation to applications PRES 9 and PRES 10 of 2005, it was said by Mr Ellis that there was an error that the Commission had made by not having sufficiently considered the issue of conciliation under s32(2) of the Act. This subsection is as follows:-
    

“(2) In endeavouring to resolve an industrial matter by conciliation the Commission shall do all such things as appear to it to be right and proper to assist the parties to reach an agreement on terms for the resolution of the matter.”

54. I emphasise that the subsection refers to the Commission doing all such things as appear to it to be right and proper to assist the parties to reach an agreement on terms for the resolution of the matter. There are a couple of things to observe about that. First of all, the subsection refers to the Commission doing such things as appear to it to be right and proper. It seems to me that the Commissioner who is seized of an application is in the best position to decide what is right and proper to assist the parties by way of conciliation to reach an agreement. Secondly, in relation to both of the matters, the applicant has indicated that it wishes to argue that it is not in the public interest for a new award to be granted in either instance, and has indicated that if that matter is determined adverse to it, then it would be prepared to conciliate as to the terms of the award.
55. In both matters, it seems that the Commission has taken the view that there should be no separation of the issues of the public interest and the terms of the award if the public interest issue is determined favourably to the party seeking the award. Therefore, having taken that view, it appears to be open to the Commission to form the view that there is nothing further to be conciliated at this stage.
56. I should say that there is a reluctance in the Commission, as presently constituted, to grant stays on matters that are interlocutory and which relate to procedural issues only. This is not, of course, an inflexible rule but, in my opinion, there is to be caution exercised in granting stays in relation to procedural matters and interlocutory matters. This reluctance is reinforced by s49(2a) of the Act which requires there to be something more than just an arguable appeal for leave to be granted to appeal against interlocutory matters. There needs to be something by way of public interest to support such an appeal proceeding.
57. The second matter that was referred to by Mr Ellis which is a matter, arguably, of public importance, is what is referred to as the Commission acceding to requests for expedition in relation to the hearing of both applications for awards. The suggested expedition was based on the fact that the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (the Work Choices legislation) is to come into force some time next year and which may impact upon the potential for the Commission to grant awards of the type applied for. There are two aspects to this. Firstly, it was argued that it was wrong in principle to expedite a matter on that basis, and, secondly, it was argued that the consequences of expediting the matters was that there would be hearings which would be procedurally unfair to the present applicant because of the short timetable in which the matters are to be heard.
58. In relation to PRES 9 of 2005, there is no clearly set out set of reasons which indicates that there has been an expedition of the hearing on the basis set out by the applicant. However, I accept the argument of the applicant that one can infer from the correspondence to and from the Commission and the procedural decisions that have been made, that there was some expedition for the purpose that has been argued.
59. With respect to PRES 10 of 2005, it is much clearer that there has been expedition for the purpose referred to because this is clearly set out in the reasons for decision of Commissioner Kenner.
60. The conclusions which the Commissioner came to in his reasons are encapsulated in paragraphs [14] to [17] of his reasons as follows:-
    

“14 I am not therefore persuaded by the respondent’s submissions that the Commission should not provide some expedition to these proceedings to at least preserve the applicant's present statutory rights. This must of course, be balanced against not imposing undue burdens or prejudice on other parties to the proceedings.

15. Therefore, the Commission proposes to deal with the matter as follows.
    
16. Given the apparent concession by the respondent that the employees who may be covered by the Proposed Award are not presently governed by any award of this Commission, the Commission will first consider whether pursuant to s 36A(2) and (3) of the Act an interim award should be made, that extends to the relevant employees pending consideration of the claim for the Proposed Award. This matter will be dealt with on 20 December 2005. Directions will be made to enable that matter to proceed expeditiously.
    
17. Secondly, the substantive application for the Proposed Award will be listed for hearing in mid to late January 2006 and appropriate directions will be made in that respect also. Those directions will pay due regard to the requirement that the respondent and other persons interested in the proceedings have sufficient time to adequately prepare their cases. Given that the substantive proceedings in this matter were commenced on 9 September 2005, it could be reasonably said in my opinion that a hearing date in mid to late January 2006, in terms of any final relief, would be proceeding with unseaming haste.”
    
61. It should be noted that Commissioner Kenner referred to the Commission providing some expedition to the proceedings to preserve the respondent’s present statutory rights, but indicated that this needed to be balanced against not imposing undue burdens or prejudice on other parties to the proceedings. The Commissioner was therefore conscious of the need to engage in proceedings that were not procedurally unfair to the present applicant.
62. I have read the reasons of Commissioner Kenner and also the written submissions in that matter and also the correspondence in A3 of 2005 with respect to whether there should be some expedition in favour of the current respondent because of the possible effect of the Work Choices legislation coming into force.
63. In my opinion, it is clearly arguable that Commissioner Kenner erred and that the appropriate application of the principles would not have led to an expedition of the hearing of the matter. In saying this I have in mind in particular the decision of Jupp v Computer Power Group Ltd and Another (1994) 122 ALR 711 which is not dissimilar to the present situation and also the observations of the New South Wales Court of Appeal in Meggitt Overseas Ltd and Others v Grdovic (1998) 43 NSWLR 527. It should also be borne in mind that what was at issue here was the expedition of the hearing of the matter and not an issue as to whether an existing date should or should not be adjourned, which is referred to in some of the other decision which were relied on in the reasons for decision of Commissioner Kenner. However, I need say no more on that than an appeal is arguable against the orders expediting the hearing on the basis on which they were made.
64. The same applies with respect to the orders made listing application A3 of 2005 for hearing next week.
65. The real issue though, is what are the consequences of me regarding the argument as arguable and it comes down, I think, to what is the impact on the present respondent of the decision being made in their favour as opposed to the applicant having the decision not made in their favour. If the stays are granted, then the hearings next week could not proceed. The respondent could not then and could never get the benefit of the fruits of the litigation which are the early hearing dates. If the stays are not granted, then the applicant needs to proceed to appear at the hearings next week. If that occurs, they argue that they will be subject to procedural disadvantage in that the hearings will be unfair. However, it is significant, and Mr Ellis made this clear, that in seeking these stays it was not the intention of the applicant to have the hearings delayed to the extent that the making of an award would become nugatory or could not proceed because of the impact of the Work Choices legislation. In this regard, he submitted that the relevant aspects of the Work Choices legislation will not become operable until March 2006.
66. It seems to me that in the context, a successful appeal by the applicant could only be described as “nugatory” if it were the case that they could not, to any extent, get a fair hearing before the Commission next week. To me, that is a matter that is best dealt with by the Commission at first instance who is seized of the matter. Neither Commissioner has closed off the possibility of there being an application for an adjournment if matters become unfair next week. The applicant has indicated that it may not know the case which it has to meet at trial next week, it does not know sufficient of the particulars of the evidence sought to be led against them to be able to properly engage in proceedings next week. In my opinion, each of these matters are procedural matters as to which the Commission at first instance is in the best position to resolve and which can be raised in an application to the Commission at first instance next week.
67. I should also say that there are some large assumptions in accepting a submission made by the applicant that if the stays were granted the applications for awards could still be determined by the Commission at first instance. This would require a Full Bench to be constituted, for the Full Bench to hear the matter, for the Full Bench to hand down a decision and, if it was adverse to the applicant, then there to be a hearing before a single Commissioner in sufficient time for a decision to be made before March 2006 that an award should be made. I do not think it is safe to assume that all this could or will occur or that the Commission should strain to ensure that it could.
68. Mr Ellis also submitted that another possibility was for the Commission to stay the hearing of the matters next week and simply make an order which would have the effect that the hearings would take place not with expedition but would occur in the ordinary course of events. This would secure a hearing for the applicant which would be procedurally fair, it was argued. Although there is something to be said for this argument, again it devolves into an issue of what is or is not procedurally fair before the Commission in these hearings at first instance. As indicated, I think that the Commission at first instance is best placed to consider these matters and that the decisions made to date by the Commission do not foreshadow that applications for further particulars, evidence or adjournments cannot be granted if justified.
69. Thirdly, it was argued by Mr Ellis that there was an indication in A5 of 2005 that there had been a predetermination of an issue by Commissioner Kenner in paragraph [13] which directly impacts on the public interest argument which the applicant seeks to make. The relevant paragraph is as follows:-
    

“13 Whilst it appears that the terms of Schedule 1 to Schedule 15 of the  Workplace Relations Amendment (Work Choices) Bill 2005 , in  Part 3 , purport to “convert” State awards into “notional agreements preserving State awards”, it is clear, that subject to various exclusions, any award arising from these proceedings will be far from a dead letter. Subject to the Commonwealth Parliament’s power under the Commonwealth Constitution to enact such a law, it seems intended that such “notional agreements preserving State awards” have a period of operation of three years from the commencement of the federal legislation. That is, subject to the various exclusions and exceptions contained in the legislation as to the content of awards, any award arising from these proceedings will operate according to its full terms and effect for at least three years. This is entirely apart from any operation that any award may have in respect of employers which are not constitutional corporations for the purposes of s 51 (xx) of the Commonwealth Constitution.”

70. The applicant takes issue with what the Commissioner says in that paragraph. The applicant wishes to argue that, having regard to the terms of the Work Choices legislation, it is pointless to make an award and that this is relevant to the public interest question. It is submitted by the applicant that the language of Commissioner Kenner in paragraph [13] is fairly strong and in non compromising terms. Whilst I accept that to be the case, I do not consider that the Commission at first instance has placed himself in a position where he has prejudged the issue to the extent that it cannot be reargued by the applicant. This is particularly so given the fact that the context of the argument being considered by Commissioner Kenner at paragraph [13] is somewhat different to the public interest argument which is to be raised.
71. In my opinion, if the applicant’s argument is as cogent and correct as Mr Ellis indicated to me in his submission, then Commissioner Kenner is not in such a position that he cannot accept that submission, despite what he has stated in this paragraph of his reasons.
72. Fourthly, there are other aspects of the making of the orders by the Commission in both PRES 9 and PRES 10 of 2005 which are brought to my attention both in the terms of the written submissions and the correspondence which has been made to the Commission at first instance and in the grounds of appeal. For example, it was argued there was no opportunity to speak to the minutes in A5 of 2005, and other matters.
73. I have considered all of those matters in preparation for this hearing. I indicate that there are some aspects of those matters which caused my eyebrows to be raised, but again the question is not whether there is simply an arguable appeal on these matters, and I accept that there is, but whether it is appropriate to grant the stays, having regard to the principles and issues that I have referred to earlier. In my opinion, with respect to each of those matters, if the submissions of the applicant are sound, then they are matters which could be corrected on an appeal later on in the piece. They are not matters which, if a stay is not granted, will make an appeal nugatory on the grounds of procedural fairness.
74. Overall, in my opinion, I do not accept the contention of the applicant that, if the stays are not granted, then the prejudice suffered by them is irredeemable. I consider that they are still able to take up the matters which they consider to be procedurally unfair with the Commission at first instance and that the Commission at first instance is in the best position to deal with these matters. If the Commission at first instance continues to make decisions which they dislike on those matters and which are unfair, then they are correctable on appeal. It is not a situation where the subject matter of the appeal will disappear if the stays are not granted.
75. With respect to the issue about whether there should have been expedition on the basis of the impending Work Choices legislation, I make the following additional comment. Given that orders have been made listing the applications for hearing, the intent of the present applications is to seek a vacation of them. The Commission’s position, as presently constituted, is more like a situation where there is an application to adjourn an existing hearing rather than an application to seek expedition of the hearing. Again, it would be arguably wrong for the Commission, as presently constituted, to grant, effectively, an adjournment application based on the potential impact of the Work Choices legislation, one way or the other. This is so on the basis of the decisions earlier referred to.
76. I also take into account that the dates which have been provided and the stages of hearing by the Commission are such that it is not intended to preclude certain arguments being raised. For example, the correspondence from Commissioner Wood’s associate dated 2 December 2005 clearly indicated that the public interest matters would still be argued next week and any other matters which the applicant sought to raise. With respect to the matter before Commissioner Kenner, there is an application for an interim award to be heard next week and a listing in January 2006 for the hearing in relation to the possible final award.
77. In relation to the complaints that the applicant does not know the case which it has to meet, whilst that might be true to the extent of some particularisation and with respect to some evidence, it does have the detail of the awards which are sought by the current respondent. As indicated, if there are other deficiencies in procedural matters, I consider it open to the applicant to raise these with the Commission at first instance.
78. I should also indicate that some of the applicant’s complaints about procedures adopted contain an element of speculation about them such as not being able to locate and present witnesses who may be relevant to the hearing. If these possibilities eventuate to the extent that it is unfair to the applicant, as I have emphasised previously, an application to the Commission can be made for an adjournment. The Commissioner again would be the person best placed to assess the merits of such an application.
79. Another matter which was raised on the papers was whether the Commissioners have decided not to have inspections on site. In my opinion, it is not clearly set out in any of the papers that the Commissioners have determined not to have an inspection on site. It may be that Commissioner Wood does not require to have an inspection on site given that he is seized of some knowledge about the work of locomotive drivers because of applications that he has heard previously. With respect to Commissioner Kenner, he has not made a decision not have an inspection on site and that matter can be taken up with him.
80. There was also raised on the papers the question of whether Commissioner Kenner ought to disqualify himself on the basis of apprehended bias. Ordinarily, applications for disqualification on the basis of apprehended bias must be first made to the person who is listed to hear the application. Although the issue has been raised in some papers before the Commission at first instance, it is unclear whether that has been determined other than perhaps by implication, and certainly no reasons have been given with respect to that issue. Given this uncertainty, in my view, the issue can again be raised with the Commissioner who should rule on it. If ruled on adversely to the applicant in a way which involves an error of law, this may again ground an appeal against any final decision adverse to the applicant. I am not convinced this is a matter which should lead to a stay of the orders sought, on the basis of the strength of the ground or, what might loosely be termed as the balance of convenience, especially in the context of an application seeking a stay of interlocutory orders.
    

Conclusion

81. For all of these reasons, and despite the careful arguments advanced on behalf of the applicant, I am not disposed to grant a stay in any of the matters and, therefore, an order dismissing the application in each of the matters will be issued.