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T8863

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.70(1) appeal against a decision

Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union
(T8863 of 2000)

and

Brambles Australia Ltd trading as Brambles Industrial Services

 

FULL BENCH:
PRESIDENT F D WESTWOOD
DEPUTY PRESIDENT B R JOHNSON
COMMISSIONER P C SHELLEY

HOBART, 15 March 2000

Appeal - decision by Commissioner Imlach dated 16 February 2000 to refuse to approve an industrial agreement pursuant to Section 55 of the Industrial Relations Act 1984 in Matter T8785 - decision revoked - matter referred back to Commissioner Imlach to hear and determine

REASONS FOR DECISION

By application dated 23 December 1999, the appellant union and respondent employer in these proceedings jointly lodged with the Acting Registrar, pursuant to section 55(2) of the Industrial Relations Act 1984, the Brambles Industrial Services - Tasmanian Equipment Servicing Agreement 1999. The Acting Registrar referred the file to the President who, pursuant to Section 15 of the Act, subsequently allocated the agreement to Commissioner Imlach to conduct a hearing into the matter.

Having notified both parties of his intentions in that regard, the Commissioner heard the applicant union (now the appellant) on 24 January 2000. The respondent employer did not attend the hearing, either in its own right or by way of agent. After considering the applicant union's submissions Commissioner Imlach, acting pursuant to Section 55(4) of the Act, refused to approve the agreement. In doing so the Commissioner, after recording the wage rate increases proposed in the agreement, expressed the grounds for his decision in the following terms:

    "The Commission was not advised of any efficiency measures agreed between the parties (and none were incorporated in the agreement), which, under the principles of the Commission, in particular, Principle 3, Enterprise bargaining at 3.2.1 and 3.2.2, would have enabled the projected wage rate increases to be approved."

The applicant appealed that decision, asserting with supporting grounds that, in coming to his decision, Commissioner Imlach had failed to exercise due discretion.

At the hearing before us Mr P Baker, who appeared for the appellant union, said he was authorised to present apologies on behalf of the respondent employer, who could not attend because of interstate commitments.

The proceedings opened with a discussion between the Bench and Mr Baker regarding the fact that:

  • the submissions put to Commissioner Imlach at first instance by the applicant union were brief in the extreme; and
  • there were no submissions at all from the respondent employer, because it was not present or represented at the hearing.

In that context, regarding merit issues, we note that Commissioner Imlach simply observed that he "was not advised of any efficiency measures ...which ... would have enabled the projected wage rate increases to be approved." It was essentially on the basis of that observation that the Commissioner decided to refuse to approve the agreement.

The transcript of proceedings at first instance does not disclose why the Commissioner proceeded to hear the matter in the employer's absence. We believe it is unwise for members of the Commission to conduct ex parte hearings in the case of applications to approve industrial agreements. For example, to mention only a few reasons, an ex parte hearing deprives the Commission of the benefit of hearing submissions from one or other of the parties, of questioning the absent party, or of testing the bona fide nature of the absent party's commitment to the particular agreement. We believe we should strongly discourage ex parte hearings in relation to Section 55 industrial agreements.

In the circumstances of the case that was before him we believe that, as a matter of procedure, it was not open to Commissioner Imlach to refuse to approve the agreement, since he does not appear to have considered any issues of merit. Rather, we think, the appropriate response would have been to adjourn the proceedings sine die with directions to the parties to provide such detailed submissions as the Commissioner believed appropriate. For the above reasons we believe we should revoke Commissioner Imlach's decision. Given that decision we do not find it either necessary or appropriate to consider those grounds of appeal that raise merit issues.

At the commencement of proceedings we invited Mr Baker to identify the nature of the order(s) that his organisation sought from the Commission in the event that the appeal should be successful. In reply, Mr Baker said that the appellant's preference was that this Bench should "quash" Commissioner Imlach's order and, acting on submissions that he proposed to put regarding matters of merit, approve the agreement. Alternatively, he added, the Full Bench might simply "quash" the Commissioner's order and refer the matter back to him to hear and determine.

Having regard to our earlier observations about the desirability of ex parte hearings in relation to Section 55 applications, we believe it would be inappropriate for us to consider the merits of the matter in the employer's absence. Consequently, we decline to make the order preferred by the appellant.

In the circumstances, because there were effectively no submissions before him in relation to the merits of the agreement, we believe it is appropriate to refer the matter back to Commissioner Imlach.

In light of the above discussion we revoke Commissioner Imlach's decision and refer the original application back to him with the direction that he hear and determine the matter in accordance with Section 55 of the Industrial Relations Act 1984.

 

F D Westwood
PRESIDENT

Appearances:
Mr P Baker for the Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union

Date and Place of Hearing:
2000
March 14
Hobart