Burswood Resort (Management) Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch [2002] WASC 219 (29 August 2002) Last Updated: 19 September 2002 JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT CITATION : BURSWOOD RESORT (MANAGEMENT) LTD -v- AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH [2002] WASC 219 CORAM : ANDERSON J (Presiding Judge) HEARD : 29 AUGUST 2002 DELIVERED : 29 AUGUST 2002 FILE NO/S : IAC 10 of 2002 BETWEEN : BURSWOOD RESORT (MANAGEMENT) LTD Applicant AND AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH Respondent Catchwords: Industrial law - Appeals - Stay - Application for stay of proceedings pending appeal - Need to show exceptional circumstances Legislation: Industrial Relations Act 1979 Industrial Relations (Western Australian Industrial Appeal Court) Regulations 1980 Result: Application dismissed Category: B Representation: Counsel: Applicant : Mr T H F Caspersz & Mr D Brajevic Respondent : Mr D H Schapper Solicitors: Applicant : Blake Dawson Waldron Respondent : Derek Schapper Case(s) referred to in judgment(s): Nil Case(s) also cited: Nil 1 ANDERSON J (Presiding Judge) : There is an appeal pursuant to s 90 of the Industrial Relations Act 1979 against the decision of the Commission in Court Session made yesterday declaring that it had jurisdiction to deal with an application for an award. The matter that is before me this morning, sitting alone pursuant to s 87(3) of the Act, is an application for a stay of proceedings on that decision. 2 The application is ostensibly brought pursuant to reg 6 of the Industrial Relations (Western Australian Industrial Appeal Court) Regulations 1980 which provides: "An appeal to the Court does not operate as a stay of proceedings on the decision being appealed from unless the Court or a Judge of the Court directs otherwise." 3 On behalf of the union Mr Schapper submitted that reg 6 is inapplicable to this application for a stay. I do not accept that submission. I do not go into the details of the argument which he presented, but in my opinion reg 6 is applicable to this application. It is an application for a stay of proceedings on a decision being appealed from. 4 It is well established that a stay of proceedings on a decision being appealed from will not be ordered unless the circumstances are exceptional. On behalf of the employer applicant, Mr Caspersz sought to contend that the rule that there is a need for exceptional circumstances does not apply to a case in which the application is to stay proceedings for want of jurisdiction on a decision by the Commission that it did have jurisdiction. I do not accept that submission. 5 I think that the rule that the applicant for a stay must show exceptional circumstances is a rule of general application. The reason for the rule is that, were it not for the rule, the general rule in reg 6 that an appeal does not operate as a stay of a decision appealed from would be eroded to vanishing point. 6 These proceedings concern an application by the union for a new award. The application was filed on 10 July last and the proposed new award is titled Burswood Island Resort Employees Award 2002. The proposed new award is a mirror image of a new award applied for by the union in March last, 8 March, I think, in an earlier application. That application was dismissed by the Commission on the ground that there was in place an industrial agreement, popularly called the Casino Agreement, which was not due to expire until 30 June 2002, and in which there was a clause, cl 45, I think, by which the parties agreed to defer extra claims for the term of the agreement. 7 As I understand the papers that have been put before me, the Commission in Court Session held that it was in the public interest to enforce that clause and it therefore dismissed the application by the union for extra payments or for an award which would provide for payments extra to the payments provided for in the Casino Agreement. Now, I may be wrong about all of that, but that is broadly as I understand the background to this application. 8 There is also in existence an award known as the Burswood Island Resort Employees Award of 1985. That award coexists with the Casino Agreement. The reason why the Casino Agreement continues in operation notwithstanding the term expired on 30 June 2002, is that there is provision in the Industrial Relations Act for the continuation of registered industrial agreements beyond the expiration of them until one party or the other files notice of retirement from the agreement. 9 It is proposed by the union that the new award, the award which is presently before the Commission by way of application, should replace both the old award (the 1985 award) and the Casino Agreement, and should commence from the first pay period after 1 July of this year. Burswood Resort objects to the making of a new award and alternatively, as is usual in cases such as this, submits that a new award should be in terms of a draft put forward by it, so there is the usual claim and counterclaim which is to be arbitrated by the Commission. 10 When the matter came on before the Commission in Court Session a few days ago, Burswood Resort took a preliminary jurisdiction point. Mr Caspersz on behalf of Burswood Resort argued that the Commission had no jurisdiction and I think he also argued that the Commission had no power to entertain an application for a new award covering the ground covered by the Casino Agreement in the circumstances which prevailed, they being that no party had filed notice of retirement from the agreement. 11 The basis of that contention essentially was that the Casino Agreement remains in force by force of the provisions in the Industrial Relations Act and because it remains in force the matters covered by it cannot be industrial matters. There can be no bone of contention in respect to them, if I might use Mr Caspersz' phrase. There was also an argument that in the circumstances as they stood the Commission had no power under the Act to bring down an award to replace a subsisting industrial agreement. 12 The contention that the Commission has no jurisdiction and has no power to make a new award was put in a number of ways, the details of which I do not need to go into. It is sufficient for me to say that in my opinion the submission that there is no jurisdiction as things presently stand is at least arguable. It has at least some prospects of success. 13 I am not so sure about the argument with respect to the power of the Commission. As I understood Mr Caspersz in oral argument and as I have tried to understand his written submissions, the argument seems to be highly semantic. I would rate it as having something less than reasonable prospects of success. That the jurisdiction point is arguable is not nearly enough to invoke my jurisdiction to order a stay. No doubt there may be cases in which the appeal grounds are so strong as to compel a conclusion that the appeal must inevitably succeed, and it may be - and I make no final decision on it - that this will constitute exceptional circumstances, but this case is not in that category. 14 The other matters said to constitute exceptional circumstances may be summarised as follows, and I hope I do not do injustice to counsel in so briefly summarising them. It is not in the public interest, so it is said, that awards and orders should be made without jurisdiction and in excess of power. To allow that to happen is, so it is said although perhaps not in these words, inimical to the proper administration of justice. Furthermore, if the proceedings leading to the making of an award are beyond jurisdiction and the award itself is ultra vires and a nullity, there will have been a big waste of resources and money and effort. It was also submitted that the making of an award in the circumstances as they presently exist, which award turns out to be a nullity, would cause problems downstream with respect to workplace agreement benchmarks and matters such as that, and an award which provides for higher rates would have to be complied with, at least until it was set aside should it ultimately be set aside, and that would cause prejudice to the employer who would not really have any practicable means of recovering overpayments. 15 These are undoubtedly matters which do require consideration. They are matters of prejudice. There are complications which would arise if an invalid award is made in due course by the Commission in Court Session. However, the question remains whether these are matters which constitute exceptional circumstances and I am not persuaded that they are. 16 They are consequences which must be regarded as commonplace where the Commission in Court Session is proceeding to make an award where its jurisdiction to do so or its power to do so is in doubt and where one party or the other wishes to challenge its jurisdiction to do so, with the prospect that the Industrial Appeal Court might decide the award is of no effect. 17 Because the matters referred to do not constitute exceptional circumstances and because I am firmly of the opinion that exceptional circumstances must be shown before this Court should intervene to exercise its jurisdiction under reg 6 to stay the proceedings below, I decline to stay the proceedings. The application for a stay must be dismissed.