T6437
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Minister for Public Sector Administration and Health Services Union of Australia,
Industrial dispute - S21(2)(c) application - public interest - comity - application rejected - matter adjourned "sine die" REASONS FOR DECISION On 13 August 1996 the Minister for Public Sector Administration (the Minister) applied to the President, pursuant to Section 29 of the Act, for a hearing to settle an industrial dispute with the Health Services Union of Australia, Tasmania No. 1 Branch (HSUA) regarding the following circumstances:
At the hearing convened by the President on 30 August and 13 September 1996, Mr J. McCabe appeared with Mr J. Bone for the Minister and Ms R. Harvey appeared for HSUA. In addition, in response to an application made under Section 27(2) of the Act, I granted leave to intervene to Mr P. Mazengarb, appearing for The Community and Public Sector Union (State Public Services Federation Tasmania). By way of introduction, Mr McCabe explained that the purpose of the Section 29 application is to "bring the dispute with the HSUA back where it belongs,"1 that is to say, within the jurisdiction of the Tasmanian Industrial Commission. Mr McCabe acknowledged that the dispute is presently the subject of proceedings before Senior Deputy President MacBean of the Australian Industrial Relations Commission. In those proceedings, Mr McCabe said, His Honour is hearing, among other matters, an application by the Minister under Section 111(1)(g)(ii) of the federal Industrial Relations Act 1988 to effect that it is proper for the particular dispute to be dealt with by the State's Industrial Commission. Mr McCabe submitted that if the Minister is successful in his application, the current Section 29 notification will enable the matter to re-commence in the State Commission without delay. Mr McCabe indicated that the Minister's intention in the present proceedings is to simply place on record a factual appreciation of the history of the dispute, without going into any considerations of merit, and to then request adjournment of the hearing until there is a decision of the Australian Commission in respect of the Section 111(1)(g)(ii) application in perhaps three to four week's time. At this point in proceedings, Ms Harvey gave notice of a threshold issue, i.e. that, on the application of HSUA pursuant to Section 21(2)(c) of the Act, I should, indeed am compelled to, dismiss the matter now before me because the Australian Commission is directly dealing with the same matter. Under the principle of comity, Ms Harvey submitted, it is totally inappropriate in the circumstances that the Tasmanian Commission should attempt to deal with the same dispute. In support of HSUA's application Ms Harvey tendered, with explanations, a composite Exhibit2 containing the following subject-matter:
Ms Harvey submitted that HSUA regards the history of the matter as very significant because it shows the existence of a live dispute over a substantial period of time (mid January to mid June 1996, according to HSUA). During that entire period, Ms Harvey said, the evidence shows the employer never made any attempt to bring the dispute before the Tasmanian Industrial Commission. To the contrary, Ms Harvey contended, the steps taken by HSUA regarding notification of industrial action, and by the Government regarding lockouts, all occurred formally under the umbrella of the federal Act. Although objecting to some parts of HSUA's analysis Mr McCabe, for the Minister, did not take issue with it, submitting that the history is of very little relevance. Mr McCabe said the only reason the dispute is before the Australian Commission is because HSUA initiated a bargaining period under the federal Act. Prior to HSUA invoking protection of that Act, he said, the State Government responded to industrial action by using Section 50A of the Tasmanian Act, i.e. power to stand down without pay. Mr McCabe acknowledged that the Government did not take the dispute to the State Commission prior to HSUA serving its notice of protected action. This, he said, was because the dispute was then in its relatively early days (an assertion vigorously challenged by Ms Harvey). The notice of protected action initiated by HSUA under the federal Act, Mr McCabe contended, forced the Government to respond under that Act - it had no other option. Ms Harvey said that on 20 June 1996, on the union's own application, the Australian Commission terminated HSUA's bargaining period. On the same day, she contended, the parties agreed to proceed to arbitration under the provisions of Section 170PP of the federal Act which, among other things, requires the Australian Commission to immediately begin to exercise its power to prevent or settle the particular industrial dispute. The Senior Deputy President accordingly set down a program of hearings. Mr McCabe said the Government did not oppose HSUA's application because it reasoned, based on the facts and precedent in the Australian Commission, that any opposition would be unsuccessful. In these circumstances, Mr McCabe submitted, the Government strenuously denies acquiescing or consenting to having the Australian Commission resolve the dispute. HSUA's strategy, Mr McCabe argued, is clear from its own newsletter of 7 June 1996.4 The predominant motivation of HSUA, he contended, was to gain protection from legal action and, further, to initiate a bargaining period for the purpose of taking the dispute away from the State Commission and into the jurisdiction of the Australian Commission. Ms Harvey confirms this strategy, Mr McCabe submitted, by her own admission in these proceedings that: 5
Subsequently, Ms Harvey asserted, at a directions conference on 17 July 1996, MacBean SDP ruled against an application by the Minister that the Australian Commission should hear and determine the Section 111(1)(g)(ii) application separately from the merit proceedings. In these circumstances, Ms Harvey submitted, it is incorrect for Mr McCabe to even vaguely suggest that there might be a separate determination of the Section 111(1)(g)(ii) application because the Senior Deputy President is hearing both cases concurrently. The current status of proceedings in the Australian Commission, Ms Harvey said, is that MacBean SDP has heard HSUA's merit case and part of the Minister's Section 111(1)(g)(ii) application. Proceedings will continue later this month, in particular on 19, 24, 25 and 26 September and, if necessary, 3 October. Ms Harvey contended that, even if the Senior Deputy President should complete the hearing within that time frame, it is unlikely that his decision will become available within the period suggested by Mr McCabe. What these historical facts show, Ms Harvey argued, is that both parties to the current dispute acquiesced in their invocation of the federal Industrial Relations Act and use of the Australian Commission. In those circumstances, Ms Harvey submitted, it is necessary to ask why, in August 1996, should there suddenly arise an application to invoke the jurisdiction of the Tasmanian Commission. The answer to this question, Ms Harvey suggested, is to be found in the proceedings before Senior Deputy President MacBean in the Australian Commission. In support of her point Ms Harvey, referring to Exhibit HSUA 1, said that in the course of hearing submissions on 12 August 1996 relating to the Minister's section 111(1)(g)(ii) application, MacBean SDP asked Counsel for the employer to inform him of the reasons, if any, why the employer did not refer the matter to the State Commission at the time the dispute was current in Tasmania.6 After a short discussion, the same record shows that Counsel took His Honour's question on notice for the purpose of responding at a later time. The transcript of proceedings before MacBean SDP on the following day, 13 August 1996, records the following exchange between His Honour and Counsel for the Minister:7
What this record demonstrates, Ms Harvey contended, is that the employer is attempting to pre-empt the outcome of the Section 111(1)(g)(ii) application - to shore up the application for the purpose of submitting to the Australian Commission that this dispute is an active matter before the Tasmanian Industrial Commission. There can be no other reason for the present application, Ms Harvey argued, because of Mr McCabe's concession that the matter should go no further in the Tasmanian Commission until there is an outcome in the proceedings before the Australian Commission. In reply on this issue Mr McCabe makes three points. First, as recorded in the extract of transcript of proceedings in the Australian Commission tendered by Ms Harvey, the decision to lodge this application was taken prior to and not merely as the result of the matter arising before Senior Deputy President MacBean. Second, even if the Government's motivation in lodging the current application is an expression of desire to support the Section 111(1)(g)(ii) application in the Australian Commission, that ground is not a relevant public interest consideration under Section 21(2)(c) of the Act. All the application does, in that sense, is indicate to both the Australian Commission and the State Commission that the Government is quite willing to have the matter resolved in the latter jurisdiction. Third, by its own actions, HSUA is attempting to deprive the State Commission of jurisdiction in relation to the subject-matter of the Section 29 application. However, the union now seeks to rely on those same actions for the purpose of encouraging this Commission to dismiss the current application for the purpose of ensuring that it does not weaken HSUA's position in the Australian Commission. Mr McCabe submitted that the Government is serious and genuine in making and pressing its application in these proceedings. This attitude, he said, reflects the Government's position before MacBean SDP that the State Commission is the appropriate forum for resolution of the particular dispute. But, Ms Harvey continued, even if the question of motive is put to one side, there remains the fact that, before the Australian Commission, there are live proceedings, in which both parties by their actions acquiesced, concerning subject-matter identical to that specified in the current Section 29 notification. As a matter of comity, she submitted, it is totally inappropriate for the State Commission to deal with a matter that is the same as that with which the Australian Commission is already dealing. Ms Harvey contended that it is contrary to the public interest for two jurisdictions to attempt to deal with an identical issue, since there is a clear risk of disputation and confusion. It is no answer, Ms Harvey implied, to adjourn the current application because that is contrary to the principle of comity in that it would leave two live matters, concerning identical subject-matter, being dealt with in two jurisdictions. In these circumstances, she continued, having regard to this Commission's responsibility to act according to equity and good conscience and in the public interest, I should exercise the power vested in the Commission by reason of Section 21(2)(c) of the Act and dismiss the Minister's Section 29 application. For the Minister, Mr McCabe submitted that I should not accept HSUA's submissions because they lack merit. Accordingly, he contended, I should not dismiss the application under Section 21(2)(c) but, instead, simply adjourn it under section 21(2)(g) of the Act pending outcome in the Australian Commission of the Government's Section 111(1)(g)(ii) application. If I follow this course of action, Mr McCabe said, there will be no disputation and confusion because the two proceedings will not be running concurrently. So much for the facts and circumstances of this matter. I turn now to consider the parties' submissions. As to the Commission's jurisdiction per se, Ms Harvey touched on the question early in proceedings8 but did not further pursue the matter. My perusal of the Minister's notification satisfies me that the issue in dispute, i.e. "rates of pay to apply from 1 July 1996 to members of the Health Services Union of Australia, Tasmania No. 1 Branch" is an "industrial matter" within the meaning of that term as defined in Section 3(1) of the Act. Accordingly, I formally find that the subject-matter of the Section 29 application now before me is within the jurisdiction of the Tasmanian Industrial Commission. Despite Mr McCabe's qualification concerning Ms Harvey's historical analysis, 9 there is no issue between the parties, in my view, regarding the essential facts of this matter, at least in so far as they relate to the Section 29 application. The record also shows, because there was no argument to the contrary, that a similar consensus appears to exist between the parties as to the identical nature of the subject-matter of the disputes represented by the Section 29 application before me and the merit proceedings before MacBean SDP in the Australian Commission. Although her primary argument concerns the principle of comity, Ms Harvey in her submissions put some weight on the motives of the Minister in lodging the current application; apparently, so far as I can judge, in support of a public interest argument under Section 21(2)(c)(ii) of the Act. As recorded above, Mr McCabe submitted that the question of motivation, in the circumstances, is not a relevant matter of public interest in the context of Section 21(2)(c) of the Act. I accept Mr McCabe's submission for the reason that he advances. It is difficult to see how a matter that is squarely within the jurisdiction of the State Commission, as is the current matter, could ever be contrary to the public interest simply on grounds of motivation. The above considerations leave me with the central issue in these proceedings; that is, whether, pursuant to Section 21(2)(c) of the Act I should dismiss the application before me on the ground of comity. In the absence of any submission to the contrary and for purposes of these proceedings I take "comity" to mean that, in this case, the Tasmanian Industrial Commission should not exercise its jurisdiction in such a way as to cause embarrassment or interference with the processes of the Australian Commission in circumstances where the two tribunals may find themselves each dealing with the same matter. Neither party, in their submissions, directed their attention to whether comity in this sense is a matter of "public interest" under Section 21(2)(c)(ii) of the Act or "any other reason" under Section 21(2)(c)(iv) of the Act. Nor did the parties give me any guidance, by reference to decided cases, concerning the law that I should apply in determining an application of this nature. Being therefore at large, in a sense, concerning relevant case law I take as my starting point what is essentially the statutory counterpart to the present application, i.e. Section 128 of the federal Industrial Relations Act 1988. In brief, and among other things, Section 128(1)(c) provides that "if it appears to a Full Bench that a State industrial authority is dealing or is about to deal with a matter that is the subject of a proceeding before the Commission" it may make an order restraining the particular State industrial authority. In my view, consideration of the decided cases concerning this provision of the federal Act (and its predecessor) provides strong guidance for dealing with questions regarding the principle of comity. In determining an application of this kind, a State industrial authority should not lightly deny or abandon its own jurisdiction, which is the real effect of a decision to refrain from further hearing, or to dismiss, a matter pursuant to provisions like Section 21(2)(c) of the Act. In that light, in considering whether particular proceedings would embarrass or interfere with the processes of the Australian Commission, the important criteria are that the State industrial authority "is dealing or is about to deal with a matter that is the subject of a proceeding" before the Australian Commission. A recent judgment of the Industrial Relations Court of Australia in Her Majesty's Attorney-General for the State of Queensland v The Honourable Deputy President Polites of the Australian Industrial Relations Commission and Others ("Polites") (1996)10 deals with Section 128 of the federal Act. The judgment concerns, in particular, whether parties in the State proceeding should be identical with those in the federal Commission, whether the proceedings must be identical, and the constitutional validity of Section 128. However, in considering those issues, which are not directly relevant to the current proceedings, the Court discussed, obiter dicta, aspects of the operation of Section 128 that are very helpful in the present circumstances. At page 5 of the judgment the Court quotes the principle enunciated by the then Commonwealth Conciliation and Arbitration Commission in Re Commonwealth Steamship Owners' Association v The Western Australian Industrial Commission(1973)11 concerning what was then Section 66 of the 1904 federal Act:12
It is apparent from this statement of principle that, in the present case, HSUA, if it is to succeed, must show that there will be a degree of embarrassment or interference with the processes of the Australian Commission in the proceedings before MacBean SDP if I should go on to deal with the Section 29 application. In circumstances such as the present, in which there is no challenge about the identical nature of the disputes before each tribunal, one might safely suppose that if the proceedings before me continue there might well be a degree of embarrassment or interference in the processes of the Australian Commission before MacBean SDP. But, on the submissions of Mr McCabe, the Minister does not want me to proceed further with his application. He asks merely that I adjourn it to some future time when the proceedings before the Australian Commission are no longer extant. On the other hand, Ms Harvey argues that, contrary to the principle of comity, such an action would leave the application alive and, in effect, continuing to be dealt with by the State Commission. In these circumstances it is necessary to consider what S.128 means when it talks of "a matter that is the subject of a proceeding before the (Australian) Commission". Here, again, the recent judgment of the Industrial Relations Court of Australia is helpful. At page 8, the Court quotes observations of Murphy J in the High Court case of The Queen v Moore; Ex parte New South Wales Public Service Professional Officers' Association (1984).13 In that case His Honour said:
The facts of the present case, viewed in the above light, demonstrate that what is currently before me is an application for a hearing which the Minister simply seeks to adjourn. It may, perhaps, be two applications or even a proceeding. In any event, what is clearly not before me at the present time is the subject-matter of the dispute, i.e. the "rates of pay to apply from 1 July 1996 for members of the Health Services Union of Australia, Tasmania No. 1 Branch". In my view, that is the answer to HSUA's submission that, merely to adjourn proceedings, is contrary to the principle of comity because it leaves alive, that is to say, continuing, the same matter that the Australian Commission is considering. I do not believe, in the circumstances and at the present time, that it is the same matter. However, since the parties in these proceedings did not seriously contest the identical nature of each of the disputes, perhaps out of an abundance of caution I should go further. In Polites the Industrial Relations Court observes that:14
The Court was here discussing constitutional issues. However, the relevance of the statement to the current proceedings is obvious. Even if the subject-matter is identical, an adjournment of the application, as the Minister requests, will ensure that there is no "conduct of State proceedings during the pendancy of federal proceedings" concerning that matter. If, as the Court says, the Australian Commission subsequently decides not to make a provision about the matter before it, that is, should it decide to grant the Government's Section 111(1)(g)(ii) application, then "the State authority will be left free to deal with" the matter. This position is entirely consistent with the views pressed by Mr McCabe on the Minister's behalf. For the reasons discussed above, I do not believe that, in adjourning the matter before me, I am dealing with the same matter that is before the Australian Commission. But, even if it be the same matter, an adjournment of the type requested by the Minister, that is, pending the outcome of the Section 111(1)(g)(ii) application before the Australian Commission, creates no offence against the principle of comity, because it does not, in my opinion in the present circumstances, constitute "conduct of State proceedings during the pendancy of federal proceedings". Nor, for the same reasons, will such an adjournment, in the context of the Commonwealth Steamship Owners' Association case, amount to any "degree of embarrassment or interference with the processes of" the Australian Commission. Having regard to the above findings I reject HSUA's Section 21(2)(c) application in that, on grounds of comity, I should dismiss the current application. Accordingly, I refuse to dismiss the Minister's Section 29 application. Instead, I adjourn the application sine die.
B.R. Johnson Appearances: Date and Place of Hearing: 1 Transcript 30 August 1996, p.4. |