T12605
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Classic Video Pty Ltd and Liquor, Hospitality and Miscellaneous Union, Tasmanian Branch
Appeal against a decision handed down by Commissioner J P McAlpine arising out of T12300 of 2005 - Appeal dismissed REASONS FOR DECISION [1] At a hearing of this appeal on 20 April, 2006, the Full Bench dismissed the appeal and confirmed the decision of Commissioner McAlpine. The Commissioner's decision was to take effect immediately. [2] We now publish our reasons for decision. [3] In a decision issued 28 February, 2006 in Matter T12300 of 2005, Commissioner McAlpine found that the employees, Mrs Ash and Mrs Speed, who were represented by the Liquor, Hospitality and Miscellaneous Union, Tasmanian Branch (LHMU), were being "...unfairly and unjustly treated by the respondent in having to work every weekend while other workers in a similar category are rostered to have some weekends off."1 [4] Commissioner McAlpine ordered that:
[5] The decision and order have been appealed by Classic Video trading as Video City (the appellant) on the following grounds:
[6] Before dealing with the grounds of appeal we consider the proceedings below and the submissions before the Commissioner on which he had to rely to make his decision. [7] The matter was listed for hearing in Hobart on 11 October, 2005. The appellant did not appear. [8] A hearing finally took place in Ulverstone on 12 January, 2006. [9] The appellant was represented by Scott Bailey, an employee of the appellant, who indicated on the record that he had not been "...authorized to add anything to the proceedings so I don't want to say anything if I am not required to."2 [10] Mr Bailey provided some information but did not cross-examine the employees who both provided sworn evidence. Further he said: "...Well, it is not so much I am not allowed to say anything, I am not privy to all aspects of the thing, so I can't give you a proper, valid thing. I don't want to speculate."3 [11] S.70(1A) of the Industrial Relations Act 1984 (the Act) provides that a "Full Bench is not to uphold an appeal under subsection (1) unless in its opinion: the Commissioner against whose decision the appeal is made, in reaching that decision - a. made a legal error; or b. acted on a wrong principle; or c. gave weight to an irrelevant matter; d. gave insufficient weight to a relevant matter; or e. made a mistake as to the facts; or the decision was plainly unreasonable or unjust." [12] The unchallenged evidence of the employees was that they are the only two employees who work a roster which does not allow a weekend rostered off duty. This has been the case since a change of roster in May, 2005. It was the evidence of both Ms Speed and Ms Ash that there was no consultation about the change to the roster. Ms Speed was told that the change was necessary to comply with the terms of the award, Ms Ash was told it was due to the award requirements and staff shortages, however when staff were replaced the roster was not changed. [13] Mr Bailey did not challenge the evidence of the two employees. He did submit however that "Certain things about the agreement like rules, two days off a week, they are not allowed to work, we have to pay them past a certain date that makes it difficult - not impossible mind you - makes it difficult to change the roster..."4 [14] Ms Ash and Ms Speed are the only employees engaged under award conditions and are the only employees who are rostered to work every weekend. [15] Mr Bailey did submit that "...in my opinion it is not fair to have them work every weekend... But as I understand it, part of the reason for the new roster is to cover all legal aspects of the award with the two days off and various other things..."5 [16] The Commissioner noted, when asking Mr Bailey whether he wished to put a case or any explanation to the Commission, that "Well look, you have got to realize that if I make a decision in this I can only make a decision on what has been told to me."6 [17] The LHMU argued that the grounds of appeal do not "assert directly or by implication that the Commissioner's decision falls foul of any of the grounds enumerated in s.70(1A)." [18] Appeal ground 1:
[19] The appellant submitted that the finding of the Commissioner that "the rosters were changed to impose an inequity in the working conditions between those of employees on AWA's and Ms Speed and Ms Ash, could not be drawn from the evidence of one library." The Commissioner did not find that the rosters were changed to impose an inequity, but found that the rosters were changed which resulted in an inequity being imposed on the two employees. He found the action of the appellant as unfair and unjust. [20] It was the submission of the LHMU that permanent weekend work had been imposed on the employees due to their choice to remain aligned to the award. The Commissioner did say however that "The undisputed evidence clearly shows the respondent deliberately treated the two women unfairly and unjustly because they chose to remain aligned to the award. Indeed, the respondent's representative confirmed this as the reason behind the discriminatory action against the two employees."7 [21] The Commissioner could only consider the evidence before him which related to the Upper Burnie library and nothing was put to him in respect to any other library. [22] We find no error, the finding was open to the Commissioner in consideration of the evidence presented. The brief submission of the appellant's representative in fact supported the finding. [23] We reject appeal gound 1. [24] Appeal grounds 2, 3, 4 and 5:
[25] Appeal grounds 2, 3, 4 and 5 are addressed together. They are not grounds of appeal but are in general terms a commentary on the impact of the Commissioner's order. [26] The Commissioner noted that Mr Bailey had attempted to put an operational argument alleging that to comply with the award would create operational problems. His submission was not substantiated with any reasonable argument and was rejected by the Commissioner. [27] Nothing substantial was put to the Commissioner below to support the claim that it would be unable to comply with the order sought by the LHMU. [28] It is alleged by the appellant that the Commissioner has failed to observe a ruling of the Commission in determining the matter. Reference was made to two decisions of the Commission which consider Level 2 and Level 3 positions and rosters. Neither of those decisions were put to the Commissioner below and in any case those decisions would have been made subject to the particular circumstances of the dispute notified. [29] There were no submissions put to the Commissioner about the relevance of the duties of a Library Attendant Level 2. That matter was not an issue raised before him; accordingly it was not something he could take into account. [30] The Commissioner did not find that there was a "five full time video library assistant" structure. He did say that other than the two employees the subject of this application there were 3 other video library assistants.8 [31] We reject appeal grounds 2, 3, 4 and 5. [32] We make the following comment. [33] The appellant was aware of the detail of the LHMU dispute before the Commission and the remedy being sought. The appellant chose not to attend the hearing below but sent an employee, Mr Bailey, who appeared without authority "to add anything to the proceedings." [34] Mr Bailey did however present limited submissions and allegations which the Commissioner rejected as he was of the view that the claims made were unsubstantiated. The appellant's representative did not cross-examine the witnesses nor did he refute their evidence. He also agreed that the roster which applied to the two employees was unfair. [35] The Commissioner provided every opportunity for the appellant's representative to present submissions and examine the witnesses. [36] It was the choice of the appellant as to how he would respond to the application before the Commissioner; however the arguments now presented to the Full Bench are arguments which should have been presented in the hearing below. [37] No application was made by the appellant for the Full Bench to receive further evidence on appeal. Had such application been made it would most likely have been rejected in the circumstances of this matter. [38] It was the submission of the LHMU that the action of the appellant is an abuse of process. The LHMU argued that the arguments presented to the Full Bench should have been put before Commissioner McAlpine. We agree with that submission. [39] It may well be considered an abuse of process to ignore the initial proceedings, or choose not to provide the presiding Member with the relevant information on which to make a decision, but then seek by appeal to provide that information and present the case which should have been presented below. [40] In considering this appeal the decision of the High Court in House v King is relevant. In that decision it was said:
[41] The Commissioner made it clear during the proceedings below that he was required to make a decision based on the submissions and evidence put before him. Accordingly the decision he made was open to him on the evidence and submissions presented. We detect no error. [42] We reject the appeal and confirm the decision of the Commissioner. [43] The employees, the subject of this decision, have been denied the total benefit of the Commissioner's decision which was to be implemented by 1 April, 2006, due to the filing of this appeal. In this jurisdiction a decision of the Commission is immediately and automatically "stayed" by the filing of an appeal. [44] This appeal never had any hope of success and could be considered an abuse of process. Nevertheless the appellant, by filing the appeal, has denied the employees the benefit of the Commissioner's decision for some three or four weeks due to the provisions of s.71(4) of the Act which states:
[45] It is the view of the Full Bench that s.71(4) is a perverse provision which is open to abuse. History in this jurisdiction will show that appeals are lodged for no other reason than to delay the implementation of a particular Commission decision. We think that is inconsistent with legislation created to provide fairness and justice for parties to disputes.
P L Leary Appearances: Date and place of hearing: 1 Original decision para 24
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