T12027 (17 June 2005)
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Zinifex Australia Limited and The Australian Workers' Union, Tasmania Branch
Appeal against a decision handed down by Deputy President Shelley arising out of T11982 of 2005 - threshold matters determined - directions to parties REASONS FOR DECISION [1] In a decision issued on 18 April, 2005, Deputy President Shelley refused an application, made pursuant to s.21(2) of the Industrial Relations Act 1984 (the Tasmanian Act), by Zinifex Australia Limited (Zinifex) to dismiss or refrain from further hearing an application made by The Australian Workers' Union, Tasmania Branch (the AWU) to vary the Zinifex Rosebery (Mining) Award (the award). [2] The application by the AWU sought to vary the award by incorporating therein the provisions of the Pasminco Rosebery Mine 2002 Agreement (the agreement) made pursuant to s.55 of the Act. Zinifex opposed the application. [3] Zinifex has lodged an appeal against the decision of the Deputy President. The Tasmanian Chamber of Commerce and Industry Limited (TCCI) and the Australian Mines and Metals Association Incorporated (AMMA), being organisations with an interest in the award, appeared in the hearing below and presented submissions in support of Zinifex in the appeal proceedings. Threshold matters [4] The AWU argued that the right to appeal in this matter is limited in two respects. It was submitted that there is no inherent right to appeal known to law but that it is not uncommon for a statute to confer a limited right of appeal. It was acknowledged that Section 70(1)(a) of the Act provides a limited right of appeal however it was submitted that, firstly, the decision of the Deputy President is not one capable of appeal and that, secondly, Zinifex does not have standing to institute the appeal. [5] The AWU did not proceed with its second objection being satisfied that s.66(1) of the Act applies and that Zinifex does have standing and is capable of instituting the appeal. [6] S.66(1) prescribes:
Is the decision of the Deputy President a decision capable of appeal? [7] It was submitted by the AWU that the decision of the Deputy President is not a decision in respect to the making, or refusal to make, an award. The making of an award involves the creation of substantive rights and the application by Zinifex before the Deputy President was no more than a procedural matter that she refrain from further hearing the AWU application. We note that the application by Zinifex also sought that the Deputy President dismiss the AWU application. [8] The AWU said that "a decision to refuse a s.21(2)(c) application does not constitute a decision to `make, vary or rescind an award, or refuse to make, vary or rescind an award' and that such a decision does not result in the creation, variation or rescinding of substantive rights or constitute a refusal to create, vary or rescind substantive rights." [9] S.21 of the Act, the AWU said, "very clearly sets out the fact that it is directed at procedural matters." It was submitted that Part III, Division 1 of the Act is directed at the substantive rights of the parties. Division 1 of Part III of the Act deals with the power of the Commission to "make awards and related matters" and prescribes procedures and effects of awards. [10] Accordingly, the AWU said, a decision to refuse an application to refrain from further hearing, or to dismiss a matter, does not constitute a decision capable of appeal as it does not affect substantive rights and is merely procedural. [11] Zinifex argued that the decision of the Deputy President is able to be appealed. It was submitted that the Act states that a decision of a Commissioner may be appealed, it does not rely on an order but broadly defines a decision in s.69(2) as including:
[12] The AWU referred to the decision of the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 (31 August 2000) (Coal and Allied) which considered a decision of the Australian Industrial Relations Commission (AIRC) initially made pursuant to s.170MW of the Workplace Relations Act, 1996 (WR Act) in respect to bargaining period notices. No similar provision is found in the Tasmanian Act. The decision discussed before the High Court was an exercise of discretion, likewise the decision before us is in respect to an exercise of discretion. The decision of the High Court in Coal and Allied noted that "It is not possible to adopt any hard and fast or universal approach to the process called `appeal' in a particular statute." [13] S.111(1)(g) of the WR Act provides that the Commission may:
[14] S.21(2)(c) of the Tasmanian Act prescribes that the Commission may:
[15] S.45(1) of the WR Act provides that:
[16] S.69(2) [Interpretation of Part] of the Tasmanian Act prescribes:
[17] S.70(1) [Rights of Appeal] states:
[18] It seems to us that the Tasmanian Act has provided, at s.69(2), its own interpretation of what is meant by a decision for the purpose of appeal and we adopt that interpretation. The interpretation does not limit the decision to `award' matters and adopts a broad approach referring to almost any finding or determination made by a Commissioner. [19] Reading down the prescription it is clear that an appeal against a decision to `make, vary or rescind an award, or refuse to make, vary or rescind an award...' is limited to the parties so prescribed in s.70(a)(i), (ii) and (iii). Other than the right of the Minister the prescribed parties would be parties to the award or a party with a granted or deemed interest in the award the subject of the appeal. [20] We are of the view that the decision by the Deputy President is a decision capable of appeal. The grounds of appeal [21] Zinifex claims that:
Background [22] The parties, Zinifex and the AWU, are respondent to both the award and the agreement. The agreement reached its nominal expiry date on 1 August, 2004 but the parties continue to be bound by its terms and conditions pursuant to s.55(7) of the Tasmanian Act. It was submitted by Counsel for Zinifex that "My instructions are that the company has no intention to withdraw from it [the agreement]. I didn't hear Mr Flanagan [for the AWU] say he was going to." [23] The AWU notified of a dispute between it and the company which was the subject of hearing before Deputy President Shelley in matter T11939 of 2005. Similar disputes were notified by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) in matter T11951 of 2005, and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) in matter T11952 of 2005. The three notifications were joined for the purpose of hearing and determination and all claimed:
[24] The Deputy President issued a document titled Reasons for Decision which recorded a Direction and Recommendation rather than any enforceable decision. The Deputy President did however make certain findings in that document. That document titled Reasons for Decision is not before us in this appeal application nevertheless the findings have been repeated and adopted in the decision being appealed. [25] The company informed the Deputy President prior to the hearing of the application by the AWU that, in accordance with s.21(c)(ii) and (iv) of the Tasmanian Act, it would be seeking that she "...dismiss or refrain from further hearing the matter on the grounds that further proceedings are not necessary or desirable in the public interest......." [26] Further the company indicated that "....in the event that you determine that the matter ought proceed to hearing, we are instructed to formally notify you as required by s.24(4B) of the Act of our client's intention to request that you refer the above application to the President pursuant to s.24(4A) of the Act." [27] The grounds relied upon by Zinifex when seeking that the Deputy President dismiss the application or refrain from further hearing as further proceedings are not necessary or desirable in the public interest, were that:
[28] In general terms they are the same grounds submitted by Zinifex in support of an application that the matter be referred to the President for allocation to a Full Bench. [29] It is our view that such process was somewhat disingenuous and little more than a `two bob each way' approach. In the event that the Deputy President decided to continue hearing the matter then the very same arguments put to her as to why she should refrain from further hearing would be put before a Full Bench, should that part of the company application be successful. If that application were to be successful it would follow that the Deputy President, having made certain findings about matters which Zinifex would also put before that Full Bench, would have to be excluded from any Full Bench hearing the matter. [30] It is our view that the Deputy President was required only to hear the parties on the application by Zinifex to refer the application to the President for allocation to a Full Bench. Zinifex had complied with the provisions of the Act and as such it was mandatory that the application be referred to the President in accord with s.24(4A), the Deputy President having been advised in accord with s.24(4B) of the Act. [31] It would seem that applications pursuant to s.24(4A) or (4B) are rare in this jurisdiction, in fact no current Commission member has previously been required to consider such an application. [32] Nevertheless, and despite the pleadings of Zinifex, the Deputy President was required to only deal with the reference application and was not required to make any findings in respect to the application made pursuant to s.21(c)(ii) and (iv). Under the circumstances the procedural course adopted by the Deputy President is perhaps understandable, however as stated above, in doing so she is now effectively precluded from sitting on any subsequent Full Bench hearing of the matter. [33] We have already said, and have provided our reasons why we consider the application by Zinifex, made pursuant to s.21(c), was somewhat disingenuous. [34] Further, findings made by the Deputy President in an earlier decision, which have been incorporated into the decision the subject of this appeal as findings, are not matters requiring determination by this Full Bench. We note that Zinifex does not seek a determination in respect to the matters raised in that document which dealt with jurisdictional issues in respect to notices served pursuant to s.170MI of the WR Act. [35] There remains before the President an application by Zinifex that this matter should be referred to a Full Bench pursuant to s.24(4A) claiming that the application:
[36] In a separate notice the President has determined that, in the public interest, the matter should be dealt with by a Full Bench. The Full Bench hearing this appeal will be the same Full Bench to hear and determine the application pursuant to s.24(4A). [37] The conundrum now faced by this appellate Bench is that to determine the grounds of appeal would require us to determine matters which will be put before the Full Bench in respect to the Zinifex s24(4A) application. This is so as Zinifex generally relies on the same arguments in support of its application for reference to a Full Bench as it relied on for its s.21(2)(c) (ii) and (iv) application before the Deputy President. The s.24(4A) application by Zinifex: [38] The s.24(4A) application will be listed before this Full Bench. We presume that the submissions would be similar to those already put before the Deputy President however there will be the opportunity to put any additional submissions in respect to the merit of the s.24(4A) application. We are conscious of the cost and time involved in any further formal proceedings and propose that the parties provide any further submissions in writing. [39] The Full Bench will then be in a position to determine the s.24(4A) application taking into account the submissions before the Deputy President and any further submissions the parties, including TCCI and AMMA, may wish to present. [40] The determination of the s.24(4A) application would also determine the outcome of the appeal against the decision of Deputy President Shelley by either confirming the findings therein or by revocation of her decision. [41] To that end we direct that the parties comply with the following timetable:
P L Leary Appearances: Date and place of hearing: 2005
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