T12999
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TASMANIAN INDUSTRIAL COMMISSION Decision Appealed - See T13037 Industrial Relations Act 1984 Construction, Forestry, Mining and Energy Union, Tasmanian Branch and Skilled Group Limited
Industrial dispute - alleged breach of the Zinifex Hobart Smelter Enterprise Award - threshold issue - matter set down for hearing REASONS FOR DECISION [1] On 17 July 2007, the Construction, Forestry, Mining and Energy Union, Tasmanian Branch (the union) applied to the President, pursuant to Section 29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Skilled Group Limited (the respondent) arising out of an alleged breach of the Zinifex Hobart Smelter Enterprise Award (the award) in relation to union member Grant Lockley. [2] The matter was listed for hearing at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania on 2 August 2007 at 12.00 noon (Conciliation Conference) and 28 August 2007 at 9.30 am. However, at the request of the parties this was subsequently changed to 30 August 2007. [3] Grant Lockley was employed by Skilled Group Limited, from 23 June 2001 until October 2005 at the Zinifex Hobart Smelter (Zinifex) as an operator. Mr B White, for the union, alleged that Mr Lockley was employed as a casual employee. He also alleged the respondent breached Part II - Employment Relationship and Associated Matters, and, as a consequence, breached Part VI - Leave and Holidays With Pay of the award. [4] At the outset of the initial proceedings on 2 August 2007, Mr Zeeman, for the respondent, sought to have a preliminary question determined by the Commission before hearing argument as to the merit of the application. The threshold issue raised was that, the respondent was allegedly a respondent to the Federal Metals, Engineering and Associated Industries Award 1998 (the Federal award) and, as such, the award should not apply. Mr White sought and was granted an adjournment to seek legal advice. [5] The proceedings were reconvened on 30 August 2007, where Mr T Roberts sought and was granted leave to appear for the applicant. [6] Mr Zeeman recounted Commission decisions of Abey C1 and the Full Bench2, the precursor to the instant matter. He emphasized both decisions directed that those employees of the respondent engaged "in the production process" at the Zinifex Hobart Smelter were subject to the award. He argued that during the time of Mr Lockley's assignment to Zinifex, however, the respondent was bound by the Federal award. [7] It was advanced that the respondent did not put to Abey C, nor at the appeal to the Full Bench, the position regarding its respondency to the Federal award. It was further argued that this "omission", if it was indeed that, was not fatal to the respondent's current stance. [8] Mr Zeeman cited a decision of Kirby J3 to support his position. At PN175: "... it is not uncommon for Australian courts to proceed without noticing an applicable Federal law. ... Nevertheless, the attraction of Federal jurisdiction occurs by operation of law. It is not dependent upon ... awareness or beliefs of the parties ...." [9] Mr Zeeman asserted the Federal award, at clause 1.6, specified the industrial activities falling within it's coverage inclusive of the engineering, metalworking and fabrication industries. He also asserted that, in his view, Zinifex's zinc-smelting operation fell within the melting and smelting industry. [10] Clause 1.74 of the Federal award was cited to illustrate that the Construction, Forestry, Mining and Energy Union, who are the applicant, other than in Queensland, was an organization bound by the Federal award. [11] Mr Zeeman contended that the respondent was a member of the Australian Industry Group (AIG) who, in turn, were a party to the Federal award. He cited a decision of Finkelstein J5, which concluded that the respondent was a member of the AIG. [12] Mr Roberts did not concede the issue of respondency. [13] On the issue of classification structure, Mr Zeeman cited the Classification Structure6 of the Federal award. He contended Mr Lockley's activities during the time in question at Zinifex fell between classifications C11 and C14. He illustrated this by referring to the "engineering production field" and in it "includes employees primarily engaged in production work". Mr Lockley was engaged in the production of zinc. [14] With reference to the Full Bench decision, Mr Zeeman noted:
[15] Mr Zeeman contended that Schedule A of the Federal award:
[16] Mr Zeeman also put the position that the Federal pre-reform Act, rendered the award invalid to the extent that it was inconsistent with or dealt with the matter within the Federal award. [17] The basis of the union's position is that, Mr Lockley's alleged engagement as a casual breached the award. [18] Mr Zeeman argued Clause 4.2.3, of the Federal award, under which he asserted Mr Lockley belonged, had provision for the engagement of employees on a casual basis. [19] Mr Roberts argued that a decision on the award coverage was addressed in the first instance by Abey C and confirmed by the Full Bench. He observed that both Zinifex Australia Ltd and the Australian Mines and Metals Association (Incorporated) appealed the Abey C decision and that neither Skilled Group Limited nor The TESA Group Pty Ltd, the two parties impacted upon by the decision, appealed the decision. He also suggested it could be seen that the original respondents were apparently content with Abey C's decision. [20] In July 2006 the respondent lodged a Notice of Appeal against the Full Bench decision, LCA48 of 2006, in the Supreme Court of Tasmania identifying the Construction, Forestry, Mining and Energy Union and The Australian Workers' Union, Tasmania Branch as respondents. The respondent (the applicant in the Supreme Court matter) sought the decision of the Full Bench be dismissed. On 2 August 2006, Underwood J ordered the appeal be discontinued. [21] It is a matter of fact that the Full Bench decision9 is currently before the Supreme Court on two counts. M202 of 2006, was lodged on 11 July 2006, seeks a judicial review under s17 of the Judicial Review Act 2000. On the same date M201 was lodged, appealing the said Bench decision, citing the Full Bench as respondent and seeking a stay of proceedings under s26 of the same Act. [22] Mr Roberts put the proposition that it was not open to this Commission to do other than follow the decision of the Full Bench:
[23] Further:
[24] Mr Roberts supported his position with reference to an authority of Collins v Commissioner for Public Employment [2001] SAIRC 1613, as well as joint judgments of Wright, Walton and Hungerford in the case of Reich v Client Server Professionals Australia Pty Limited, the former Industrial Commission in court session in re Hospital Employees Pharmacists (State) Award [1979], and Stephen J in Viro v The Queen (1978), a judgment of Kennedy, Franklin and Anderson in the Federated Miscellaneous Workers Union of Australia, WA Branch v Nappy Happy Hire Pty Ltd t/as Nappy Happy Service (1994) case. [25] He elaborates further:
[26] Mr Roberts asserted
[27] Further he argued that:
[28] Mr Roberts relied on the High Court decision17 Minister for Immigration v Bhardwaj 209 CLR 597 to support his argument. He asserted that the doctrine of functus officio would operate in the instant matter which discourage the Commission from determining the matter. [29] Mr Roberts proposed the Commission either dismiss the respondent's jurisdictional argument or decline to proceed further until the relief the respondent seeks elsewhere is concluded. [30] In light of the respondent's jurisdictional argument, Mr Roberts contended the respondent's evidence18 regarding its membership of the AIG was flawed and could not be relied upon. He also contended the respondent had relied on the wording of the Federal award to categorise Mr Lockley's classification, but had offered no evidence of the work Mr Lockley carried out. [31] Mr Zeeman argued that section 152 of the pre-reform Act that operates in that the Federal Award overrides the State award where there is an inconsistency. He also noted that the respondent had withdrawn a similar application before DP Shelley, in his view, preventing DP Shelley from making a decision on jurisdiction. [32] Mr Zeeman further asserted that the fact there is a related matter before the Supreme Court is of no bearing on the instant issue. [33] Mr Lockley gave evidence with respect to his role at Zinifex. He asserted he was employed on a casual basis, called in as required, to fill in for absentee Zinifex employees. He confirmed he had been given specific on-the-job training. He outlined the tasks he had undertaken, including: pulling zinc cathodes in the Cell Room; cleaned electrical contacts on the cells; transported the cathodes by monorail to the stripping machine; transported the stripped zinc to the Casting area; dug out manganese from the cells; and worked in the reject zinc area. He stated did not hold any engineering certification. FINDINGS [34] The threshold matter agitated by the respondent, is that the respondent is party to the Metals, Engineering and Associated Industries Award 1998, a Federal instrument and, as such, is not subject to the Zinifex Hobart Smelter Enterprise Award. [35] The respondent did not appeal the decision of Abey C. It was not disputed the respondent had the opportunity to advance the award respondency issue before both Abey C and the Full Bench. Mr Zeeman argued that such a failure to raise the matter previously was not fatal to the respondent's current position. [36] In failing to raise the jurisdictional matter at the aforementioned junctures the respondent has, in my view, disadvantaged itself regardless of the merits of it's argument. The decisions by both Abey C and the Full Bench were arrived at by the evaluation of the evidence before them at the time. [37] The Industrial Relations Act 1984, at s72(1) is explicit as to the weight of Full Bench decisions:
[38] The respondent has taken the option open to it under s72(2):
[39] At s72(4) the Act again is quite explicit:
[40] It is my view that in raising the jurisdictional issue in the instant matter the respondent is challenging the decision of the Full Bench. I do not accept this challenge as legitimate. [41] Protocol is quite clear, a single Commissioner is bound by the decision of the Full Bench. In it's decision the Full Bench clearly states on point that:
[42] Which refers to Abey C's order:
[43] I agree with Mr Roberts' position, that a general proposition is, that decisions about the binding force of a Federal award are matters for the Federal Courts. [44] The respondent, as noted above, has initiated action in the Supreme Court of Tasmania. [45] However, at s 26 of the Judicial Review Act 2000, it states at (1):
[46] I decline to make a determination as sought by the respondent and concede that I am bound to adhere to the decision handed down by the Full Bench with regard to the application of the award. [47] This application relates to an alleged award breach going back a number of years. I take note of s20 of the Act with respect to the Commission conducting its matters with equity, good conscience and the merit of the case. Considering this, and the intent of s26(1) of the Judicial Review Act 2000, I see no impediment as to why I should not hear this matter in full, and I so find. [48] The Commission will proceed with the hearing to enable the parties to complete their submissions on all aspects of the application on Tuesday, 6 November 2007 at 9.30 am.
James P McAlpine Appearances: Date and Place of Hearing: 1 Exhibit R5
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