T11125
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Blue Ribbon Products Pty Ltd and Australasian Meat Industry Employees' Union
Appeal against a decision handed down by Commissioner P C Shelley arising out of T10797 of 2003 - Appeal upheld - Order revoked as far as it relates to Blue Ribbon Products Pty Ltd on the ground of supervening impossibility REASONS FOR DECISION [1] In matter T10797 of 2003 Commissioner Shelley (as she then was) issued the following order:
FURTHER that Newemploy Pty Ltd pay to the employees the amount of wages they would have received from 2 April 2003 to the date of the implementation of these Orders, less any income from paid work performed during that period, but not including any government benefits received during that period, such details to be confirmed by statutory declaration; and
[2] An appeal was brought by Blue Ribbon Products Pty Ltd (Blue Ribbon) citing the following grounds:
[3] S.71(4) of the Act provides:
[4] Accordingly the entitlements determined by the Commissioner remain `stayed' until the outcome of the appeal is finalised. [5] An appeal was also filed by Newemploy Pty Ltd (Newemploy) against the decision of the Commissioner [T11126 of 2003]. [6] That appeal was disposed of by the following decision:
[7] Accordingly this decision is only in respect to the appeal filed by Blue Ribbon in Matter T11125 of 2003. However the two appeals were initially listed together so reference to the appeal by Newemploy in the history of the proceedings in unavoidable but not relevant. [8] On 3 February, 2006, Blue Ribbon provided the following amended grounds of appeal:
[9] Chronology: 1 October 2003: Commissioner Shelley issued decision in Matter T10797 of 2003. 21 October 2003: Appeal documents filed by Blue Ribbon [T11125 of 2003] and Newemploy [T11126 of 2003] against the decision of Commissioner Shelley in Matter T10797 of 2003. 29 October 2003: Notice of hearing advising parties that appeals were listed for hearing before a Full Bench of the Commission on 17 December, 2003. 22 October 2003: Blue Ribbon and Newemploy, pursuant to the Judicial Review Act 2000, sought judicial review of the Commissioner's decision in the Supreme Court of Tasmania. 20 November 2003: Correspondence from Page Seager, Lawyers, representing Newemploy seeking that the hearing before the Full Bench of the Commission be adjourned "as a matter of urgency" due to the proceedings in the Supreme Court. The application for adjournment was supported by Rae & Partners, Lawyers, representing Blue Ribbon. 25 November 2003: Hearing scheduled 17 December, 2003, cancelled and relisted for hearing on 15 January, 2004. Directions issued for the provision of written submissions. 5 December 2003: Request from Blue Ribbon and Newemploy seeking an adjournment of hearing listed for 15 January, 2004, to await the decision of the Supreme Court. Further Blue Ribbon Newemploy sought that the Directions not be enforced, it indicated that should the Supreme Court dismiss the application by the Attorney General it would be "embarking on a process to determine the application of Newemploy Pty Ltd for relief under the Judicial Review Act." The Commission was also advised that Counsel was not available at that time. The Australasian Meat Industry Employees' Union (AMIEU) representing the former employees named in the Commissioner's order did not oppose the application for adjournment but sought that written submissions be provided by all parties as directed. 17 December 2003: Hearing listed for 15 January, 2004, cancelled and relisted 25 February, 2005. Directions issued to provide written submissions. 19 December 2003: His Honour, Mr Justice Underwood, (as he then was), issued decision dismissing the application by the Attorney General seeking an order (inter alia) that the applications for review be dismissed. In dismissing the application by the Attorney General His Honour referred to a judgement of McHugh JA (as he then was) in Ballan v Higgins (supra) at 133:
His Honour continued: "It seems to me that this is just such a case. Accordingly, the application to summarily dismiss the application for judicial review is dismissed. I will hear the parties with respect to the listing of this matter for hearing and any necessary pre-hearing steps that need top be taken." 19 December 2003: Newemploy seek that directions for the filing of submissions and the scheduled hearing date of 25February, 2004, be vacated due to Supreme Court allocating hearing date for 25 February, 2004. 24 December 2003: Blue Ribbon seek that directions for the filing of submissions and scheduled hearing date of 25 February, 2004, be vacated due to Supreme Court allocating hearing date for 25 February, 2004. 17 February 2004: Blue Ribbon write to the Director of Public Prosecutions (DPP) seeking that the DPP provide a response to the request for the Commission Full Bench hearing of the Blue Ribbon appeal to be vacated. Should there be no response to that request Blue Ribbon would "apply to the Supreme Court for relief to stop the hearing of the appeal to the Full Bench of the Commission pending the outcome of the proceedings under the Judicial Review Act 2000." Parties advised Full Bench hearing date of 25 February, 2004, vacated and directions for the provision of written submissions revoked. No further listing date provided. 29 March 2004: His Honour Mr Justice Blow issued his decision on 29 March, 2004, and dismissed the applications before him. He found that the Commissioner was able to make the order she did against Blue Ribbon and Newemploy and that the order was within jurisdiction. 4 April 2004: Blue Ribbon filed an appeal against the decision of Justice Blow. 4 May 2004: Liquidator appointed to Newemploy 7 May 2004: Full Bench decision of the Commission dismissing the appeal filed by Newemploy. 7 December 2004: The Full Bench of the Supreme Court of Tasmania dismissed the appeal by Blue Ribbon and upheld the decision of Justice Blow. 12 December 2004: Newemploy deregistered. Following the decision of the Supreme Court neither the appellant nor the respondent sought that the Commission list the appeal filed by Blue Ribbon for hearing and determination. 23 June 2005: The Full Bench was advised by the Registrar that Lawrence Lewis, an applicant entitled to the benefits of the decision of the Commissioner below, had written to the Minister for Justice and Industrial Relations drawing attention to Blue Ribbon's non compliance with the order issued by the Commissioner in Matter T10797 of 2003. 31 August 2005: Following advice from the Minister for Justice and Industrial Relations, Mr Lewis wrote to the Registrar seeking the Registrar do whatever was necessary to enforce the order of the Commissioner. 5 September 2005: The Registrar put in place the process for prosecution of the order. 27 October 2005: The summons authorised by the Registrar to be served on Blue Ribbon. 23 November 2005: The matter was listed for plea. 10 January 2006: The Registrar advised the Office of the Department of Public Prosecution (DPP) that the Blue Ribbon appeal against the decision of the Commissioner had not yet been heard by a Full Bench of the Commission. 10 January 2006: Commission advised that Newemploy "no longer exists as a legal entity having been deregistered 30 December 2005 following a cessation of the appointment of a liquidator to the company." 10 January 2006: The Commission relisted the Blue Ribbon appeal for hearing on 18 January, 2006. 10 January 2006: Letter from Blue Ribbon seeking an adjournment of appeal listing for 18 January, 2006. Request rejected. 18 January 2006: Blue Ribbon appeal listed for hearing before Commission. 31 January 2006: The Office of the DPP advised the Registrar that Blue Ribbon "would be seeking costs on the basis that the Commission should have been aware that the appeal to the Full Bench had not been determined and the prosecution could not succeed." 2 February 2006: Registrar requested the Office of the DPP to terminate the prosecution and the Commission would pay costs. 3 February 2006: Appellant filed amended grounds of appeal. 10 February 2006: Appellant filed Affidavit of Rod Gillam. 23 February 2006: Appellant filed outline of submissions. 8 March 2006: Respondent filed outline of submissions and witness statements. 10 March 2006: Further Commission hearing date for Blue Ribbon Appeal. The appeal proceedings 18 January and 10 March, 2006: [10] Blue Ribbon conceded that its grounds of appeal have "to a large extent been superseded as a result of proceedings in the Supreme Court under the Judicial Review Act 2000 and subsequent appeal to the Full Court."1 [11] It was contended by Blue Ribbon that:
[12] As previously noted in this decision the appeal filed in the Commission was adjourned, at the request of the appellant, pending the outcome of the Supreme Court proceedings. [13] Blue Ribbon submitted that it wished to be heard in respect to appeal grounds 8(a) and 8(c) which state:
(a) when she made no or no sufficient findings to define those arrangements; (b) when such orders were unenforceable due to uncertainty. [14] To that end Blue Ribbon sought to add an additional ground of appeal dealing with whether "there is an apprehension of bias being that the Commission is the prosecutor on one hand and the person, or the entity judging the enforceability of the order on the other."3 [15] It was also submitted that "in order to advance the grounds relating to unreasonableness and futility it will be necessary for the appellant to amend the notice of appeal."4 [16] The AMIEU, representing the employees the subject of the Commissioner's order submitted that:
[17] The AMIEU did not oppose the amendments to the grounds of appeal nor did it seek to challenge the additional ground of appeal. Likewise no issue was taken with the additional evidence being the Affidavit of Rod Gillam. [18] We do not make any comment in respect to the affidavit of Mr Gillam, it is a document providing a history of the appeal processes, both in this Commission and the Supreme Court, and we take no issue with its content. [19] Leave was granted to Blue Ribbon to amend the grounds of appeal, to include an additional ground of appeal and to tender the affidavit of Mr Gillam. Apprehended Bias: [20] Blue Ribbon submitted that "the appeal raises some points of general importance and.......relates to a question of whether there is an apprehension of bias being that the Commission is the prosecutor on one hand and the person, or the entity judging the enforceability of the order on the other."6 [21] Further it was submitted that by relisting the appeal Blue Ribbon was entitled to entertain an apprehension of bias against the further hearing of the appeal by the Full Bench. Blue Ribbon claimed that "Effectively, the Commission, having actively attempted to enforce the order, sits as a judge in its own cause. The appellant and fair minded members of the public could reasonably apprehend that an order dismissing the appeal was for the purpose of enforcing an order against the appellant that would otherwise be unenforceable."7 [22] What was being put by Blue Ribbon was an allegation that "...it would be a denial of natural justice to the appellant [Blue Ribbon] for the Commission to proceed to hear and determine this matter further."8 [23] Blue Ribbon said "there is no need in this case for the Commission to hear this matter at all. There is no need to do that because it is futile because no order - well, the current order which stands before the Commission cannot, as a matter of law, in my submission be enforced."9 [24] Mr O'Farrell, on behalf of Blue Ribbon, submitted that "Once the Full Court decision was made against the applicant, in my submission and I make no apology for this, the applicant - the appellant was well advised not to prosecute the appeal further because the removal of the suspension which operates under the Act would immediately lead to an issue as to enforcement, which for legal and indeed commercial reasons, is not an issue which the appellant wished to deal with."10 [25] The Act provides at S.71(4):
[26] The AMIEU submitted that the application alleging apprehended bias should be dismissed; that the appeal should be allowed on the narrow ground of supervening impossibility and that the Full Bench should vary the order of the Commissioner in one of two proposed ways. Firstly that Blue Ribbon be ordered to employ four of the originally named employees effective 1 October, 2004, or in the alternative that if, and when, Blue Ribbon decided to increase production at its Killafaddy premises that the four named employees be given absolute preference of employment. [27] In respect to the application for apprehended bias the AMIEU referred to the passage of Mason J in Re: J.R.L.; Ex parte C.J.L. [(1986) 161 CLR 342 at 352] where it was said:
[28] The reference is an appropriate consideration for an application re apprehended bias however in practical terms it can have no application to this Commission as the limited membership restricts the matter being referred to other members. [29] The AMIEU also submitted that the statute setting up this tribunal has:
[30] It was said by the AMIEU that the allegation that the Commission sits as a judge in its own cause cannot be supported as the Commission is not able to determine whether an order of the Commission has been breached. [31] We agree with that submission as prosecution of an order of the Commission is dealt with in another jurisdiction. [32] The Commission issued an ex tempore decision dismissing the application of apprehended bias. This decision provides our reasons. [33] We rejected the submissions of Blue Ribbon which claimed that "in all the circumstances the parties or the public might entertain a reasonable apprehension that the judge (in this case the Commission) might not bring an impartial or unprejudiced mind to the resolution of the question in issue."11 [34] The Full Bench of the Commission was doing no more than exercising its statutory responsibility to hear and determine an appeal lodged by Blue Ribbon. The action initiated by the Registrar, following a request from an employee subject to the terms of the Commissioner's order, is not a remarkable or unusual process, in fact it is a process initiated by the Registrar whenever a party fails to honour an order of the Commission. The members of the Commission have no involvement in that process which is prescribed in the Act and the Registrar is required to act in accordance with the Statute. In this case the process was initiated following the request from Mr Lewis, and on this occasion the appeal lodged by Blue Ribbon had yet to be determined by a Full Bench. Further it is not the role of the Commission to hear and determine a claim that an order of the Commission has been breached. [35] To enable that process to be pursued the appeal would need to be heard and determined and that was the reason for the appeal being listed for hearing. In our view it is fanciful and absurd that any allegation of apprehended bias could be contemplated by the Commission doing no more than performing its function as required by the Act. [36] The Commission could have perhaps listed the Blue Ribbon appeal at an earlier date, it did not and that fact cannot be denied however the submissions of Blue Ribbon, as the appellant, reveal that it did not wish the appeal to be determined in any case. It made no attempt to inform the Commission or the Respondent of that position and did not seek to withdraw the appeal. Of course under the Act the mere filing of an appeal suspends the order of the Commission member below until the appeal is heard and determined. It may well be seen as an abuse of process to file an appeal with no intention to proceed with that appeal to finalisation in the knowledge that the order cannot be prosecuted whilst the appeal is current. [37] We note that Blue Ribbon submitted that the matter "had been hard fought from go to whoa. We don't want it to be understood, that we, with respect, give any quarter in respect of any point......"12 We agree with that submission. [38] We reject the ground of appeal claiming apprehended bias. Unreasonableness and Futility: [39] Blue Ribbon relied to some degree on the following passage in the appeal decision against the decision of Blow J. Blue Ribbon did however concede that the passage was obiter dicta. [40] Crawford J said:
[41] His Honour provides little support for his view that the order was unreasonable and says that it is made without the benefit of submissions, nevertheless Blue Ribbon rely on that view. His Honour also made the following comment finding that the Commissioner's order was within jurisdiction.
[42] The AMIEU submitted that it "accepts and concedes that it is now practically impossible for the appellant to comply with the original orders that are the subject of this appeal." It seeks that the Commission accepts the position it now puts and allow the appeal on the narrow ground of supervening impossibility. Further the AMIEU acknowledged that the endorsement of the Commissioner's order was predicated on the continuing business relationship between Blue Ribbon and Newemploy. It submitted that the Commission find that pursuant to s.70(2) of the Act that it would be unjust and/or unreasonable for the decision and order to stand in the circumstances where the appellant cannot comply with that decision and order due only to supervening circumstances. [43] Further the concession proposed acknowledges "events that have occurred since the Commissioner's order; it involves no concession that the orders were unjust and/or unreasonable at the time they were made."13 [44] In respect to the submission of the AMIEU that Blue Ribbon was unable to comply with the terms of the Commissioner's order due to supervening circumstances Blue Ribbon said that such submission supports is position and in fact highlighted the futility of the case. [45] We recognize that the relationship between Blue Ribbon and Newemploy was fundamental to the issue before the Commissioner, it is obvious that that commercial relationship no longer exists and is unlikely to be reinstated at any time. Accordingly we agree with the submissions of both the appellant and the AMIEU in that respect. The point was also alluded to by Crawford J in his obiter dicta comment when he acknowledge that Blue Ribbon could terminate the hiring arrangement it had with Newemploy thereby frustrating the Commissioner's order. [46] It is the series of events which have transpired since the Commissioner's order was issued that make it impossible for it to be enforced. [47] Accordingly we find that the order was not unreasonable and was capable, at the time of its issue, of enforcement. We do however acknowledge that there is little opportunity for it to be enforced under current circumstances. [48] The appellant submitted that it is in the interests of justice that the "matter is brought to an end without delay" and that "it is not in the interests of any of the parties to this appeal, or any members for whom the respondent appears, to prolong the matter."14 [49] That submission of the appellant appears inconsistent with its submission that:
which reveals an intention not to deal with the appeal at all. [50] We allow the appeal but in the terms sought by the AMIEU on the narrow ground of supervening impossibility. But for those subsequent events we would have confirmed the decision of the Commissioner. [51] The order of the Commissioner will be revoked, as far as it relates to Blue Ribbon, on the ground of supervening impossibility. [52] Despite our findings we nevertheless disagree with the appellant that the order of the Commissioner was unreasonable at the time it was issued; it may now be unable to be enforced however it does not make it unreasonable in the sense claimed by the appellant. The order was within jurisdiction and as the Commissioner noted "....in terms of industrial relations the two companies were heavily involved in each other's activities."15 [53] We are of the view that the proposed variations to the order suggested by the AMIEU are not available to us. They address matters not raised in the proceedings below nor on appeal. [54] We again refer to the submission of Blue Ribbon that this matter "had been hard fought from go to whoa. We don't want it to be understood, that we, with respect, give any quarter in respect of any point......" and we recognize the rights of parties to pursue applications in whatever manner they see fit. [55] Whilst the parties have exercised their rights under the relevant legislation it seems to us that in the hard fought battle the welfare of the individuals, the former employees, seem to have been cast asunder. We find that situation most regrettable. [56] Further we note an alternative position put by the AMIEU on behalf of four members still with an interest in the matter. It proposed the following:
[57] Under normal circumstances the proposed resolution suggested by the AMIEU may well have, in part, settled the matter. It may be that Blue Ribbon could consider employment of the four named individuals at some time in the future. [58] It is our recommendation that Blue Ribbon give consideration to that proposal. [59] We uphold the appeal and revoke the order of the Commissioner, as far as it relates to Blue Ribbon, for the reasons we have stated.
P L Leary Appearances: Date and place of hearing: 1 Written submission para 2
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