IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

This Full Bench has been asked by the appellant, the Tasmanian Confederation of Industries, on behalf of members bound by the award, to quash a decision of Mr Commissioner Watling relating to rates of pay of fish farm hands employed on offshore "fin fish farms".

The main objection to the Commissioner's finding, and subsequent order, appeared to be that in determining the matter before him, he had awarded rates of pay to non tradesmen that exceeded the "State standard" for tradesmen. The alleged State standard, we were told, could be ascertained by reference to other awards of this Commission applicable to industries that employ a miscellany of persons, including tradesmen.

An additional ground of appeal was that the Commissioner had included in the total wage for farm hands a disability component in excess of what might reasonably have been justifiable on the evidence.

Other grounds for appeal were listed and addressed but we feel that it is unnecessary to discuss these except to indicate that we have considered all grounds relied upon by the appellant.

In support of the principal grounds of appeal, Mr Fitzgerald in essence contended that the tasks of a Fish Farm Attendant are "very simple" and are not technical in nature.

He indicated by reference to the evidence and the transcript that a reasonable level of proficiency in the work required to be performed can be attained within a period of three to six months.

By comparison, he said that a tradesman has to undertake, in most cases, a four year apprenticeship in order to qualify as a competent workman.

Mr Hanlon, who appeared for the Australian Workers' Union in this matter, suggested that whilst his organisation accepted the Commissioner's decision, it could be said if anything, the Commissioner exercised his discretion "too conservatively" in reaching his conclusions.

Mr Hanlon very methodically and meticulously addressed the Commission on the question of discretion which is fundamental to this appeal.

He said in essence that where a discretion, exercised by the Commission in accordance with the provision of the Industrial Relations Act 1984 is challenged, the onus is on the appellant to "demonstrate a manifest wrong".

To illustrate this point Mr Hanlon referred the Bench to the principles to be followed in appeals enunciated by the High Court of Australia in 1936, House V The King 55 CLR 499 at 504 and which, as stated in exhibit B have been -

"...frequently affirmed by the High Court of Australia in cases such as Cronow v. Gronow (1980) 144 CLR 513 and Mallet v. Mallet (1984) 58 ALJR 248. The Principles were stated in the following terms:-

It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

(55 CLR 499 at 504, 505)

Having carefully studied the Commissioner's reasons for decision and the transcript of proceedings that led to the decision now under challenge, we have come to the conclusion that Mr Commissioner Watling had before him sufficient evidence upon which to make the decisions he did.

The weight to be given to the evidence, be it oral, documentary or both, is of course a matter for the discretion of the Commissioner concerned.

In our opinion there was not a scintilla of evidence to suggest that Mr Commissioner Watling called in aid an incorrect principle or misinterpreted the evidence. Nor do we consider that he applied his mind to extraneous matters of no relevance to the decision taken.

Because we have formed an opinion that this appeal may well have been summarily dismissed as trivial, we have decided to restate the ground rules that generally apply in consideration of appeals. It is our view that intending appellants should be mindful of the general requirements put upon those seeking to overturn a decision of a tribunal member in whom there resides by statute a wide, albeit reasonably definable, discretion.

In this regard we indicate our general endorsement of the guidance to be drawn from the principles relating to appeals generally. These are conveniently and succinctly set out in what is usually referred to as the "Poon Brothers Case"1. Should that case not be familiar to all, we will highlight some of the important excerpts relating to appeal procedure that have been appropriately collated and discussed by a Full Bench of the Conciliation and Arbitration Commission in its decision on that matter.

Those excerpts that we respectfully endorse are:-

"It is our view that appellate tribunals in the Commission should resist the temptation to go straight to a consideration of how they would have decided the issues before the tribunal appealed from if they had been the tribunal of first instance. This is not the correct approach. Before there can be any question of the substitution of the opinions of members of the appellate bench for those of the tribunal of first instance the latter must be shown to have been wrong.2

And:

"Upon consideration of the material before the Commissioner we think that there was sufficient justification for his order and that a case has not been made out on that material demonstrating that he made an error, let alone an error of such a nature providing warrant for the substitution of our opinion for his."3

And:

"Moreover, it seems to us that the appellants argued this case as if we were sitting at first instance. We are an Appeal Bench and it is not for us merely to substitute our views for those of the Arbitrator assuming that they are different, we must be satisfied that the Arbitrator was in error on a matter fundamental to the due resolution of the issue before him."4

And:

"As has been stated on many occasions the prime function of an appeal bench is not to substitute its opinion for that of another member of the Commission, but to determine whether the decision represents an exercise of discretion beyond that which, in all the circumstances, was reasonably open."5

And:

"As has been stated many times, it is not for an appeal bench simply to substitute its judgment for that of the member of the Commission who initially heard the matter. There needs to be misunderstanding or misapplication of principles or the decision is unfair or unjust."6

And:

"It is well established that this Commission will not in an appeal under section 35 of the Act quash or vary an order unless it comes to the conclusion that the order was not one which might reasonably have been reached on the evidence and argument advanced at the hearing which led to the making of the order and that the order was sufficiently wrong to require correction."7

And:

"We have examined the submissions and evidence before Alley J. as well as the submissions before us and although we may not have made the same orders as Alley J., we are of the view that the decision reached and the orders made by him were open on the evidence and material before him. Nor can we find any error of principle or wrong approach or injustice in the outcome. This comment applies not only to the rates and conditions prescribed but also to his application of the Wage Fixing Principles."8

And:

"We are of course mindful of the fact that this is an appeal from the exercise of a discretionary judgment, and this being so, it is not enough that we would have decided otherwise. It must be shown that some principle was breached or overlooked or that the facts were misapplied or that some material consideration was overlooked. In the broad sense it must be shown that the findings were not reasonably open upon the material presented."9

For completeness, in case it might be argued before future appeal benches that the judgment of the High Court in Warren v. Coombes10 may tend to put a slightly different emphasis on the role of an appellate court in that case was the Court of Appeal of the Supreme Court of New South Wales, to which body there lies an appeal by way of re-hearing. This is provided for by statute.

This Commission, as a matter of principle, will not consider appeals by way of re-hearing, although not precluded from doing so by law. Appeals coming before this Commission will, generally speaking and almost exclusively we would think, be dealt with on the basis of a review of the decision and the reasons in support of that decision.

Moreover, while authorised to do so, the Commission will generally not, as a matter of practice and procedure, admit fresh evidence or material that was not before the Commissioner concerned. The only new material that might be acceptable in appeal proceedings could be that relevant to the appeal itself; for example, documentary information in the form of decisions of other tribunals that go to the question of appeal, and matters of that kind.

For the reasons stated we refrain from issuing any further order and dismiss the appeal.

1 289 C.A.R. 269
2 Kirby C.J., Moore J., and Commissioner Winter Slaughtering etc. (Meat Industry) Interim Award 123 C.A.R. 714
3 Williams J., Chambers D.P. and Commissioner Clarkson Australasian Meat Industry Employees Union v. Meat and Allied Trades Federation of Australia, 153 C.A.R. 104
4 Moore P., Ludeke and Staples JJ. Re Rates of Pay for Engineers and others, CSIRO Technical Association and others, 167 C.A.R. 497
5 Robinson and Gaudron J.J. and Commissioner Griffin Operative Painters and Decorators Union of Australia v. J.O. Addison and others 179 C.A.R. 248
6 Moore P., McKenzie D.P. and Commissioner Vosti Fruit Growing Industry (Consolidated Award) 1976 217 C.A.R. 438
7 and
8 Williams J., Taylor D.P. and Commissioner Paine Journalists (Regional Daily Newspapers) Award 1970 222 C.A.R. 448
9 Coldham and Marks JJ. And Commissioner McLagan Royal Australian Nursing Federation v. the Australian National Railways Commission
10 Gibbs ACJ., Jacobs and Murphy JJ. Warren v. Coombes 142 C.L.R. 531