T13037
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Skilled Group Limited and Construction, Forestry, Mining and Energy Union,
Appeal against a decision handed down by Commissioner J P McAlpine arising out of T12999 of 2007 - Appeal rejected - T12999 of 2007 referred back to Commissioner McAlpine REASONS FOR DECISION [1] This is an appeal by the Skilled Group Limited (referred to throughout this decision as the 'appellant') against a decision of Commissioner McAlpine in Matter T12999 of 2007. The issue in dispute between the appellant, and others, and the Construction, Forestry, Mining and Energy Union, Tasmanian Branch (CFMEU) has been the subject of four previous hearings before this Commission. [2] This appeal is the fifth occasion on which the issue has been considered by this Commission. The history of the matter is as follows: The decision of Commissioner McAlpine issued 10 October 2007, in Matter T12999 of 2007: [3] In Matter T12999 of 2007 Commissioner McAlpine rejected the submission of the appellant that he should make a finding that the appellant was respondent to the Metals, Engineering and Associated Industries Award 1998, an award of the Australian Industrial Relations Commission (AIRC), and that the Zinifex Hobart Smelter Enterprise Award, an award of the Tasmanian Industrial Commission (TIC), had no application to the applicant, Grant Lockley, who was represented by the CFMEU. [4] The Commissioner noted that the appellant "recounted Commission decisions of Abey C and the Full Bench, the precursor to the instant matter." Both decisions "directed that those employees of the respondent `engaged in the production process' at the Zinifex Hobart Smelter were subject to the award." The award being the Zinifex Hobart Smelter Enterprise Award, an award of the TIC. The appellant argued before Commissioner McAlpine that despite those decisions it was bound by an award of the AIRC and that he should find accordingly. [5] The Commissioner made no determination as to award coverage other than to acknowledge the Full Bench decision and state that he was required to comply with that decision. [6] He referred to s.72(1) of the Industrial Relations Act 1984 (the Act) which prescribes that:
[7] He also noted that the appellant had taken the option available to it pursuant to s.72(2) which provides:
[8] The Commissioner issued no order but said:
The decision of the Full Bench in Matters T12321, T12322, T12323 and T12341 of 2005, the appeal against the decision of Commissioner Abey: [9] The Full Bench decision referred to by the Commissioner is the decision in Matters T12321, T12322, T12323 and T12341 of 2005, which are all appeals against a decision of Commissioner Abey in matters T11802 and T11848 of 2004. [10] Commissioner Abey found that:
[11] The Full Bench said:
[12] The Full Bench ordered that:
[13] The order of the Full Bench applies to employees of the appellant and the TESA Group Pty Ltd who are engaged in the production process at the Zinifex Smelter. [14] The Full Bench noted that no appeal was lodged by the appellant against the decision of Commissioner Abey. The appellant was represented by the Australian Mines and Metals Association Inc (AMMA) in the hearing before Commissioner Abey; AMMA appealed Commissioner Abey's decision in its own right but not on behalf of the appellant. [15] As Commissioner McAlpine noted the appellant has exercised its right to Judicial Review of the Full Bench decision and we understand that such review is awaiting the appellant filing further documents. [16] An application for Judicial Review does not `stay' the Full Bench decision and as such it remains in force and is final, as prescribed by s.72(1) of the Act, until such time as it is subject to a determination by the Supreme Court. The applications to the Supreme Court by the appellant against the decision of the Full Bench: [17] The Commission was advised that the appellant had lodged with the Supreme Court an appeal pursuant to s.72(2) of the Act as well as an application for Judicial Review, pursuant to s.17 of the Judicial Review Act, 2000, of the Full Bench decision in Matters T12321, T12322, T12323 and T12341 of 2005. [18] The Commission was further advised that on 5 December, 2006, in a Record of Proceedings in Chambers, Master SJ Holt ordered:
[19] The Commission is advised that to date no court book has been filed with the Supreme Court. [20] In response to questions from the Full Bench in this appeal against the decision of Commissioner McAlpine it was submitted that:"...the status of the Supreme Court appeal pursuant to Part VI of the Industrial Relations Act is that it is adjourned sine die. The status of the judicial review application made pursuant to the Judicial Review Act, ss.16 and 17, is that it is adjourned sine die." Matter T12796 of 2006 before Deputy President Shelley: [21] This was an application by the CFMEU alleging that the appellant had failed to comply with the decision of the Full Bench in Matters T12321, T12322, T12323 and T12341 of 2005, and accordingly was in breach of the Zinifex Hobart Smelter Enterprise Award. [22] The matter was listed for hearing on 16 October, 2006, before Deputy President Shelley at which time the appellant argued that the matter should be adjourned to allow the application to the Supreme Court for Judicial Review of the Full Bench decision to be heard and determined by the Supreme Court. The parties were directed to confer with liberty to apply to the applicant to seek a relisting if desired. [23] The applicant sought the matter be relisted and a further hearing was scheduled on 7 December, 2006. At that hearing the appellant raised the issue of jurisdiction arguing that the Commission was without jurisdiction to hear and determine the application as the appellant was respondent to the federal Metals, Engineering and Associated Industries Award 1998. The appellant agreed that the matter of the now claimed respondency to the federal Metals, Engineering and Associated Industries Award 1998 had not been raised before Commissioner Abey or before the Full Bench appeal against the decision of Commissioner Abey. [24] The appellant sought that the Deputy President determine the preliminary question of jurisdiction. The Deputy President was aware that there were applications before the Supreme Court in respect to the Full Bench decision and was advised that the s72 appeal application had been adjourned sine die. The Deputy President was told that "The reason that the two applications were made is that s.12 of the Judicial Review Act contains a provision that the Court may in fact discontinue in effect the judicial review proceedings on the basis that there is an alternative remedy." And further "Yes, so that - really has been done and there is this - I have indicated this to the Court in respect to the Supreme Court matters that that has been done out of an abundance of caution. Nothing else." The Deputy President confirmed with the appellant that it was the s.72 application which had been adjourned sine die. [25] The applicant withdrew its application before the Commission and accordingly the Deputy President was not required to make any determination. The appeal by Skilled against the decision of Commissioner McAlpine: [26] The appellant has now lodged an appeal pursuant to s.70(1) of the Act against the decision of Commissioner McAlpine. It relies on the following grounds of appeal:
Is the appeal competent? [27] The CFMEU, the respondent to the appeal, challenged the competency of the appeal. [28] The respondent argued that the appeal brought pursuant to s.70(1) of the Act was incompetent as the Commissioner did not "make, vary or rescind an award, or refuse to make, vary or rescind an award" which is the only matter subject to appeal pursuant to s.70(1)(a) of the Act. [29] The appellant advised that it did not rely on s.70(1)(a) of the Act and the only ground it seeks to bring to appeal is made pursuant to s.70(1)(b) of the Act. [30] Section 70(1)(b) of the Act prescribes that an appeal can be made against:
[31] S.31. of the Act, Orders arising from hearings, prescribes:
[32] In respect to s.70(1)(b) the respondent submitted that the Act prescribed that appeals brought pursuant to s.70(1)(a) and (1)(c) were against a decision of a Commissioner whereas s.70(1)(b) is an appeal against an order and that reliance on s.69(2) is unhelpful as all that section does is provide an expansive definition of what is a decision for the purposes of s.70(1)(a) and (1)(c) but "it has no work to do in respect of 70(1)(b) because there's simply no reference to a decision in that section."2 [33] Further the respondent submitted that "not only is there no order, there's no order made under 31(1) which is also a requirement of 70(1)(b)." And "Whether it is a matter determining procedural rights or substantive rights, if one looks to the Federal Court processes, for example, even where the court makes final decisions as to substantive rights, there's plenty of authority for the view that until a final order is made and penalties imposed, if that be the case, the court would be very reluctant to grant leave to appeal against interlocutory decisions which, nonetheless, determine substantive rights."3 [34] The Commissioner did not issue any order pursuant to s.31(1) of the Act which is capable of appeal pursuant to s.70(1)(b) of the Act. The Commissioner in fact "declined to make a determination as sought by the respondent [the appellant in this matter]."4 [35] He then listed the application for hearing of the substantive claim. [36] S70(1)(a) and (c) of the Act refer to appeals brought against a decision issued by a Commissioner whilst s.70(1)(b) talks only about an order issued after a hearing related to an industrial dispute in accord with s.31(1) of the Act. In this matter there is no order issued pursuant to s.31(1). [37] The appellant argued that the Commissioner had issued a decision which was appellable. It was submitted that the Commissioner "...declined to make a determination that the appellant sought to be made. Now, in our submission there's simply absolutely no doubt that that was a decision; now we say that by reference to s.69 of the Act a decision incorporates an order. Now the fact of the matter is, we say the Act is unclear as to what precisely is understood to be an order for the purposes of the, if you like, the appeal provisions set out in part VI of the Act." [38] We disagree with that submission, the Act is specific at s.70(1)(b) where it states that an appeal can be brought against an order issued pursuant to s.31(1) of the Act following a "hearing relating to an industrial dispute in respect of the mode, terms or conditions of employment or any termination of employment, including termination resulting from redundancy, or long service leave, or breach of an award or a registered agreement..." [39] There is no reference to an appeal against a decision or an order issued under any other section of the Act. [40] The appellant raised the issue of what it considered were deficiencies in the Act submitting that an order referred to in s.70(1)(b) should also be a reference to a decision as the term decision/order are interchangeable. It was submitted that "the provisions of our own Industrial Relations Act simply don't make, if you like, a great deal of sense."5 [41] The appellant submitted that "subsection (1)(b) of s.70 should also be a reference to a decision. And, in fact, we say that the term decision/order are interchangeable."6 [42] That submission of the appellant clearly recognises what the Act provides but expresses the view, to which it is certainly entitled, that it should say something different. It does not, and we can only work with the legislation as it is written and not as we may like it to be written. Perceived deficiencies in the legislation are matters for the legislators and are not helpful to our determination, whether we agree or disagree with the appellant's view. [43] For an appeal to be competent there needs to be an order made pursuant to s. 31(1) which settles an industrial dispute relating to the "mode, terms or conditions of employment or any termination of employment, including termination resulting from redundancy, or long service leave, or breach of an award or a registered agreement..." [44] If any findings were made by the Commissioner they did not relate to the matters prescribed in s.70(1)(b) and no order was issued as the matters for which an order could be issued were not dealt with by the Commissioner. He was dealing with the threshold issue raised by the appellant being an argument of jurisdiction. [45] We are of the view that the appeal is not a competent appeal and we dismiss it. [46] The matter of award coverage for "...employees of Skilled Group Limited and the TESA Group Pty Ltd who are engaged in the production process at the Risdon Smelter of Zinifex" has been determined. The Full Bench upheld the finding of Commissioner Abey that the employees "...are subject to the terms of the Zinifex Hobart Smelter Enterprise Award (the Zinifex Award)." [47] Although we have dismissed the appeal we address the grounds of appeal as a matter of record. We do so as the issue of award coverage for contractors engaged on the Zinifex site has already been heard before three single Members of the Commission and this decision is the second appeal related to the issue in dispute. The appeal refers to the second occasion on which the appellant has sought a single member of the Commission to ignore or effectively overturn the above mentioned Full Bench decision. By seeking a single Member to determine a matter already determined by the Full Bench would have that effect and the appellant agreed that such would be the case.7 [48] The issue of award coverage was determined by Commissioner Abey and his finding was upheld by the Full Bench. Since that time the applicant (the CFMEU on behalf of a member or members) in the matter before Commissioner Abey has sought on two occasions to apply the Full Bench decision claiming a breach of the Zinifex Award. It is in the hearing of those applications that the appellant has sought a threshold determination that the federal award applies. [49] Further, applications have been made to the Supreme Court but not prosecuted. The appellant submitted, following questions from the Bench as to why the Supreme Court application/s had not been pursued that "...it may be that that is the appropriate course. It may be that the appropriate course is the matter be referred off to the Federal Court for an interpretation of the federal award and as to whether it applied to the appellant." We suggest that such a course of action is necessary for the appellant to resolve the issue of award coverage. This Commission can determine that prima facie a party is covered by an award of this Commission, whether it is party to a federal award is a matter for determination by the Federal Court or the Federal Magistrate which has been conceded by the appellant. At page 8, line 18 of transcript the appellant said: "Well, we say, ordinarily that may be right, however we are entitled - this is an exception, if you like, to the rule. Because we are relying upon it as a defence....We certainly say that it would be a matter for either the Federal Court of the Federal Magistrate's Court of Australia." [50] We find nothing extraordinary about the circumstance the appellant seeks to address, nor do we accept the appellant's submission that this matter/application is "an exception to the rule" seemingly because the appellant relies on that argument as its defence against the application by the CFMEU claiming a breach of the TIC award. There is nothing exceptional in a jurisdictional argument. We are of the view that the only thing that could be considered "an exception to the rule" is the manner in which the appellant seeks to have the issue resolved. [51] We are perplexed as to why the appellant continues to seek to prosecute the matter in this Commission when it has already been determined by a Full Bench. The Act allows that if the appellant is not satisfied with the decision of the Full Bench it can seek review and/or it can have the matter of award coverage determined in the federal jurisdiction if it continues to claim federal award coverage. We would think that had either of the actions available to the appellant been pursued the matter would have been resolved by now. [52] Appeal Ground 1:
[53] The appellant did not dispute the fact that it failed to raise the issue of respondency in proceedings before Commissioner Abey or before the Full Bench. It relied on a comment by His Honour Justice Kirby in a decision of the Full Court of the High Court in Air Link Pty Ltd v Paterson (2005) [218 ALR 700] where Kirby J said that:
[54] To accept the submission of the appellant we would have to presume that federal jurisdiction already exists. The issue of whether the appellant is respondent to the federal award or not is yet to be determined, as such we would question any reliance on the comment of Kirby J. [55] The Commissioner found that "In failing to raise the jurisdiction 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."8 [56] We would suggest the Commissioner's finding is no more than a comment rather than a finding of fact which would determine any outcome. Even if it were a finding it changes nothing as it his view that the appellant disadvantaged itself by failing to raise the issue of jurisdiction in the earlier hearings and has no bearing on a finding of jurisdiction or any other outcome of the matter in dispute. [57] The Australian Industrial Relations Commission (AIRC) in a decision of the Full Bench in Lee Jarrad Jervis v Coffey Engineering Group Pty Ltd [Print PR927201] said:
[58] The Full Bench referred to the following quote from a decision of Deane J in Sullivan v department of Transport (1978)[20 ALR 323 at 343]:
[59] We agree with the view expressed by the AIRC and the comment of Deane J. [60] As we are of the view that the Commissioner made no finding but expressed a view, accordingly there can be no error and we reject appeal ground 1. [61] Appeal ground 2:
[62] The appellant argued that the Commissioner erred by finding that he was bound to adhere to the Full Bench decision. It was submitted that "the common law doctrine of precedent provides that a court is bound to follow its own previous decisions unless those decisions are inconsistent with a higher court's decision or are wrong in law."9 It is in the hands of the appellant to do whatever it considers necessary to determine whether the Full Bench decision is "inconsistent with a decision of a higher court" and therefore wrong. To challenge whether it is wrong at law the appellant can pursue its application already filed with the Supreme Court. [63] A member sitting alone is unlikely to make a determination which overturns a decision of a Full Bench. [64] S.72 of the Act Provisions relating to finality of decisions of Full Bench provides: 93(1) Where a Full Bench makes a decision in respect of an appeal, that decision is, subject to this section, final. (2) A person who wishes to challenge a decision of a Full Bench in respect of an appeal may apply to the Supreme Court, by motion supported by affidavit, for an order nisi calling on the Full Bench to show cause why the decision should not be quashed in whole or in part. (3) On the return of an order nisi referred to in subsection (2), the Supreme Court may discharge the order or make it absolute with or without costs. (4) A decision of a Full Bench in respect of an appeal shall not be challenged otherwise than under this section." [65] The Act is specific that a decision of a Full Bench is final and cannot be challenged other than in accord with the relevant section. The relevant section provides that a party may apply to the Supreme Court and we have noted that the appellant has exercised its right to apply but for reasons that are not explained the appellant has not pursued that action in the Supreme Court. We are of the view that, in accord with the Act, the only way in which the decision of the Full Bench can be reviewed is by an application to the Supreme Court. [66] The Commissioner in his decision has referred to the provisions of the Act and has stated that "...a single Commissioner is bound by the decision of the Full Bench."10 [67] We do not address the appellant's submission on precedent as it relates to ratio decendi. The submissions of the appellant rely on a finding that the Full Bench decision is incorrect and of course no such finding has been made. [68] We agree with the finding of the Commissioner and detect no error. We reject appeal ground 2. [69] Appeal grounds 3 and 4:
[70] Had the Commissioner determined the issue agitated by the appellant and found in favour of the appellant his decision would have the effect of contradicting a Full Bench decision about the same issue, it is doubtful whether a determination in the appellant's favour would have resolved the dispute, it would only create confusion and inconsistency. In our view that is not a situation contemplated by the Act which is perhaps why s.72 is quite specific as to the finality of a Full Bench decision. [71] As the matter of award coverage is the subject of a Full Bench decision any request for a single member to make a different finding can only be seen as a challenge to the Full Bench decision. We have already addressed the provisions of s.72 of the Act and its provision that a Full Bench decision is final unless an appeal against its finding is pursued in accord with the Act. [72] Accordingly we agree with the Commissioner's finding that "......in raising the jurisdictional issue in the instant matter the respondent [the appellant in this matter] is challenging the decision of the Full Bench. I do not accept that challenge as legitimate." [73] We reject appeal grounds 3 and 4. [74] Appeal ground 5 and 6:
[75] Section 152 of the Workplace Relations Act 1996 (the federal Act) provides: "Subject to this section, if a State law or a State award is inconsistent with, or deals with a matter dealt with in, an award, the latter prevails and the former, to the extent of the inconsistency or in relation to the matter dealt with, is invalid." [76] It is not the role of this Commission to determine whether or not a particular party is respondent to a federal award or whether a federal award has application to work being performed at a particular enterprise. In this matter the claim by the appellant as to respondency is challenged and will require determination. [77] There are two parts to the claim, (i) whether the appellant is a named respondent, in whatever form, to the federal award and (ii) whether the work performed by the applicant in the matter below, Mr Lockley, is covered by that federal award. Such determinations are within the province of a federal court and not within the province of this Commission. [78] S.152 of the Federal Act only has application when the issue of award respondency is determined and then only if it is found that the appellant is respondent to a federal award. [79] We detect no error by the Commissioner and reject appeal grounds 5 and 6. [80] Appeal ground 7:
[81] Again award coverage is an issue for determination in a court of competent jurisdiction. [82] However the Commissioner made no determination as to whether the appellant was, or was not, a respondent to the federal Metals, Engineering and Associated Industries Award 1998. In fact he declined to make the determination sought by the appellant that the federal Metals, Engineering and Associated Industries Award 1998 was the appropriate award. [83] The Commissioner did no more than acknowledge the existence of a Full Bench decision which had previously determined that the appellant was covered by the Tasmanian Zinifex Hobart Smelter Enterprise Award and that such Full Bench decision was final and he therefore was obliged to recognise it. [84] We detect no error as the Commissioner made no finding which is capable of appeal. [85] We have already found that the appeal is not competent. We also reject all grounds of appeal. [86] The appeal is dismissed and the file will be referred back to Commissioner McAlpine to deal with the substantive matter being a claim that the appellant has breached the Tasmanian Zinifex Hobart Smelter Enterprise Award.
P L Leary Appearances: Date and place of hearing: 1 T12999 of 2007 paras 46 - 48 |