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T5452

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.70 appeal against decision

Australian Municipal, Administrative, Clerical and Services Union
(T.5452 of 1995)

COMMUNITY SERVICES AWARD

 

FULL BENCH:
DEPUTY PRESIDENT A ROBINSON
COMMISSIONER R J WATLING
COMMISSIONER P A IMLACH

HOBART, 13 July 1995

Appeal against a decision handed down by Commissioner R K Gozzi on 24 March 1995 in matters T2225 of 1989, T2311 of 1990 and T4146 of 1992 - Community Services Award

REASONS FOR DECISION

On 24 March 1995 Mr Commissioner Gozzi issued Reasons for Decision1 in relation to variations to the Community Services Award involving a new classification structure, wage rates, relativities and definitions.

An appeal against that decision was made by the Australian Municipal, Administrative, Clerical and Services Union pursuant to Section 70(1) of the Industrial Relations Act 1984.

The grounds of appeal (as amended) were:

"That the Commissioner in his decision and finding of 24 March 1995 -

1. Erred in application of the Wage Fixing Principles including the Structural Efficiency Principle;

2. Erred in mistaking the facts;

3. Erred in making a decision not reasonably open to him."

The Act provides in Section 71(10) that:

"(10) On the hearing of an appeal, a Full Bench shall act according to equity, good conscience, and the merits of the matter without regard to technicalities or legal forms, and may direct itself by the best evidence it can procure, whether that evidence would be admissible in a court or not."

Both the appellant and the respondent accepted that it was appropriate for us to follow the principles of appeal established in both the Poon Brothers matter [1983 289 CLARE 269] and in House V The King [ (1936) 55 CLR 499 at 504].

We agree that those principles are well established and appropriate for use in deciding the appeal before us. After all it was a Full Bench of the Australian Industrial Relations Commission which decided in the Poon Brothers matter to apply the principles which were established by the High Court in House V The King, and therefore such principles clearly are both authoritative and relevant to deciding industrial issues.

Those principles as enunciated in House V The King are to be found in the following extract2

"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. 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 substation 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 fact it is unreasonably 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."

In the matter before us the appeal was against the result of an exercise of discretion by the Commissioner given to him by the Act. There was no denial that he acted within the powers bestowed upon him to deal with the subject matter of a proper application made pursuant to Section 23 of the Act and we conclude that there would be no grounds for such an proposition if it were to be advanced.

Upon reviewing the substance of the arguments placed before us by the appellant we have concluded that there has been no discovery of an error having been made when the Commissioner exercised his discretion. We find in the alternative that the Commissioner, in his decision, not only balanced all of the competing arguments put to him during the course of the lengthy case, but properly satisfied himself that the final outcome was consistent with the public interest, which is a statutory requirement.

The implicit suggestion put to us was the Commission's Wage Fixing Principles3 effectively contained a fixed regime of wage relativities which must be strictly translated into the same outcomes as might be found to have occurred in settlements reached elsewhere. However we believe such a construction is too narrow and the circumstances of each case needs to be considered on merit. The Commissioner in deciding the matter before him was entitled to consider such matters as the relevance of cited cases; whether like was being compared to like; whether introduced material was the subject of an arbitration or the end product of enterprise bargaining; the skills and qualifications actually required for the positions being determined.

In this appeal we are of the view that the appellant has not established that the Commissioner mistook any facts; acted upon a wrong principle; or failed to take into account some material consideration.

For these reasons we reject the appeal and confirm the original decision made by Mr Commissioner Gozzi on 24 March 1995 in matters T2225 of 1989; T2311 of 1990 and T4446 of 1992.

 

Appearances:
Mr I Paterson for the Australian Municipal, Administrative, Clerical and Services Union
Mr R Watson for the Tasmanian Chamber of Commerce and Industry Limited
Mr T Kay for the Community Services Employer Organisation (Tasmania)
Mr C Brown intervening on behalf of the Health Services Union of Australia, Tasmania No 1 Branch

Date and Place of Hearing:
1995
Hobart
May 15
June 13, 15

1 T2225 of 1989, T2311 of 1990 and T4146 of 1992
2 Ibid
3 T5214 of 1994