[2009] AIRCFB 150 [2009] AIRCFB 150 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION DECISION Workplace Relations Act 1996 s.120 - Appeal to Full Bench Transport Workers Union of Australia, Union of Employees (Queensland Branch) (C2008/3377) VICE PRESIDENT WATSON SENIOR DEPUTY PRESIDENT O'CALLAGHAN COMMISSIONER SMITH MELBOURNE, 12 FEBRUARY 2009 Appeal against decision PR984608 and order PR984602 of Commissioner Bacon at Brisbane on 19 November 2008 in matter number C2008/3280. Introduction [1] This is an appeal, for which leave is required, by the Transport Workers’ Union of Australia, Union of Employees, Queensland (TWUQ) against a decision 1 and order 2 of Commissioner Bacon made on 19 November 2008 under s.496 of the Workplace Relations Act 1996 (Cth) (the Act). The Order under appeal required that industrial action by drivers employed by Bus Queensland not occur. It was expressed to come into effect on 19 November 2008 and cease to have effect on 31 December 2008. [2] The Appeal is made under s.120 of the Act. It was filed on 10 December 2008. An application for a stay of the order pending the determination of the Appeal was heard and rejected on 16 December 2008. The appeal was heard in Brisbane on 30 January 2009. Mr B. Johnson represented the TWUQ. Mr J. Dwyer, of counsel, represented Bus Queensland. Background [3] On 18 November 2008, Bus Queensland made an application under section 496 of the Act for an order that industrial action allegedly engaged in by the TWUQ and drivers employed by Bus Queensland cease forthwith. The matter was heard by Commissioner Bacon the following day. [4] Bus Queensland alleged that on 18 November 2008 officials of the TWUQ attended the company’s depot and convened a meeting over alleged defective buses. Bus Queensland alleged that a number of drivers rostered to work at the time refused to drive their bus in order to attend the “stop work” meeting. [5] The TWUQ disputed the existence of industrial action. It said that it issued an invitation to attend a meeting and it was never its intention that any driver rostered to work stop work to attend the meeting. [6] Commissioner Bacon found that the actions of employees leaving their work to attend the meeting was industrial action under the Act, that it was probable that the TWUQ would convene further meetings of a similar type in the future and probable that employees would leave work to attend such meetings in the future. He found that he was therefore required by the Act to issue an order directing that such probable industrial action not occur. His order was binding on employees of Bus Queensland but not the TWUQ. Grounds and Nature of Appeal [7] The TWUQ’s grounds of appeal challenge the reliance on section 496(2) of the Act, the existence of any evidence to enable the Commission to make any findings of fact, or alternatively the specific findings that he made, and it was not open to the Commission to make orders binding on employees in circumstances that they had not been notified of the application for orders against them or have an opportunity to be heard in relation to them. [8] The TWUQ contends that the matters are of such importance that leave to appeal should be granted because the decision and order contain jurisdictional errors, raise important issues concerning the jurisdiction to make the orders, raise important issues concerning the obligations of the Commission to afford natural justice, are manifestly unjust and create a precedent for future matters involving Bus Queensland. [9] It is common ground that insofar as the appeal grounds challenge findings relevant to the jurisdiction to make and determine the application, the appeal bench is required to determine whether the findings were in error. Insofar as the appeal grounds challenge matters of discretion the appeal needs to be determined having regard to the principles enunciated in House v R 3 . It was contended by the TWUQ that the assessment as to whether industrial action was probable was a decision involving an element of discretion and it was therefore required to show the existence of error of a type described in House v R . Relevant Legislation [10] Section 496 provides: 496 Orders and injunctions against industrial action—general Orders relating to action by federal-system employees and employers (1) If it appears to the Commission that industrial action by an employee or employees, or by an employer, that is not, or would not be, protected action: (a) is happening; or (b) is threatened, impending or probable; or (c) is being organised; the Commission must make an order that the industrial action stop, not occur and not be organised. Orders relating to action by non-federal system employees and employers (2) If it appears to the Commission that industrial action by a non-federal system employee or non-federal system employees, or by a non-federal system employer: (a) is: (i) happening; or (ii) threatened, impending or probable; or (iii) being organised; and (b) will, or would, be likely to have the effect of causing substantial loss or damage to the business of a constitutional corporation; the Commission must make an order that the relevant industrial action stop, not occur and not be organised. (3) For the purposes of subsection (2), and other provisions of this Act as they relate to orders under that subsection: (a) non-federal system employee means a person who is an employee, within the ordinary meaning of that word, but who is not covered by the definition of employee in subsection 5(1); and (b) non-federal system employer means a person who is an employer, within the ordinary meaning of that word, but who is not covered by the definition of employer in subsection 6(1); and (c) section 420 (which defines industrial action) applies as if references in that section to employees and employers were instead references to non-federal system employees and non-federal system employers. Order may be made on application or on Commission’s own initiative (4) The Commission may make an order under subsection (1) or (2) on its own initiative, or on the application of: (a) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action; or (b) an organisation of which a person referred to in paragraph (a) is a member. Applications generally to be heard and determined within 48 hours (5) As far as practicable, the Commission must hear and determine an application for an order under subsection (1) or (2) within 48 hours after the application is made. Interim orders if applications cannot be heard and determined within 48 hours (6) If the Commission is unable to determine an application for an order under subsection (1) or (2) within the period referred to in subsection (5), the Commission must (within that period) make an interim order to stop and prevent engagement in, and organisation of, the industrial action referred to in subsection (1) or (2). (7) However, the Commission must not make such an interim order if the Commission is satisfied that it would be contrary to the public interest to do so. (8) An interim order is to have effect until the application is determined. Commission does not have to specify the industrial action (9) In ordering under subsection (1), (2) or (6) that industrial action stop, not occur and not be organised, the Commission does not have to specify the particular industrial action. Obligation to comply with orders (10) A person to whom an order under subsection (1), (2) or (6) is expressed to apply must comply with the order. (11) Subsection (10) is a civil remedy provision. (12) The Court may, on application by a person affected by an order of the Commission under subsection (1), (2) or (6), grant an injunction on such terms as the Court considers appropriate if it is satisfied that another person: (a) has engaged in conduct that constitutes a contravention of subsection (10); or (b) is proposing to engage in conduct that would constitute such a contravention. Note: For other provisions about civil remedy provisions, see Division 3 of Part 14. Orders do not apply to protected action (13) An order under subsection (1), or under subsection (6) that relates to an application for an order under subsection (1), does not apply to protected action. Extension of time [11] An appeal is required to be filed within 21 days of the order or decision appealed against or within such further time allowed by a Full Bench 4 . The order and decision under appeal were both made on 19 November. The appeal was faxed after close of business on 10 December 2008 being the 21 st day following the making of the order and decision. Given the short time of the extension sought and explanations given for the delay we grant leave to file the appeal on the following day as the TWUQ effectively did on 11 December 2008. Leave to Appeal [12] Bus Queensland contends that there is no basis to grant leave to appeal under the public interest ground or otherwise. It points to the fact that the order under appeal has now expired, the matter relates to the limited facts unique to the parties at the time of the dispute and submits that the decision and order are of no precedent value. [13] The TWUQ contends that the practical effect of the appeal is to obtain a determination of the Full Bench that the order should not have been made in the circumstances and thereby prevent further orders being made unless circumstances justifying the making of orders exist and procedures necessary for a fair hearing of the matter are followed. [14] In our view the matter is not of such importance that, in the public interest, leave should be granted. The matter did relate to significant disruption of public transport services. It was heard, as required by the Act, expeditiously. The TWUQ appeared and made submissions in the matter. The Commissioner had regard to the circumstances as contended by the parties and made an assessment of the probability of further action of a similar type. His order was not binding on the TWUQ and expired some six weeks after it was issued. In our view the decision and order are not precedents for any future matters. [15] We do not believe that a case has been made out for leave to appeal being granted on public interest grounds or otherwise. Conclusion [16] For the reasons outlined we decline leave to appeal and do not deal further with the grounds of appeal. The matter is dismissed. BY THE COMMISSION: VICE PRESIDENT Appearances : B Johnson for the Transport Workers Union, Union of Employees (Queensland) J Dwyer of counsel for Bus Queensland Hearing details: 2009. Brisbane. 30 January. 1 [2008]AIRC 904 2 PR984602 3 [(1936) 55 CLR 499 at 505 4 Rule 13(2) of the AIRC Rules 2007. Printed by authority of the Commonwealth Government Printer <Price code C, PR985761>