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[Extract from Queensland Government Industrial Gazette,

dated 19 May, 2006, Vol. 182, No .3, pages 72-74]

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Industrial Relations Act 1999 - s. 342(1) - appeal against decision of industrial commission

Transport Workers' Union of Australia, Union of Employees (Queensland Branch) AND Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers (C/2005/72)

PRESIDENT HALL
DEPUTY PRESIDENT SWAN
COMMISSIONER EDWARDS / 10 May 2006

DECISION

By decision reported at 180 QGIG 228 and delivered on 9 September 2005, the Queensland Industrial Relations Commission, constituted by a Commissioner sitting alone, exercised the power at s. 331(b) of the Industrial Relations Act 1999 (the Act) to dismiss an application for the recovery of wages by the Transport Workers' Union of Australia, Union of Employees (Queensland Branch) [hereafter TWU]. The application was brought for the benefit of a member of TWU, viz Mr Philip Smith. The application was brought against a member of Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers viz. Transit Australia Pty Ltd trading as Sunshine Coast Sunbus. TWU subsequently sought leave to appeal to a Full Bench of the Commission. By a decision of 9 February 2006, now reported at 181 QGIG 280, TWU was granted the leave which it sought. This decision is about the appeal itself.

The preliminary issue is whether s. 331 may be invoked in proceedings in the Commission under s. 278 for the recovery of wages. If s. 331(b) be read literally, there can be no doubt that the section does apply in proceedings under s. 278. The expression "industrial cause" is defined in Schedule 5 to the Act to include "an industrial matter or an industrial dispute". By s. 7(3) of the Act, a matter will be deemed to be an "industrial matter" if it relates to a matter mentioned in Schedule 1 of the Act. Matters mentioned in Schedule 1 include wages, allowances, remuneration of persons employed, the time to be worked to entitle employees to a particular wage, allowance, remuneration or price and the interpretation or enforcement of the industrial instrument, unless the Act otherwise prescribes. The controversy before the Commission pursuant to s. 278 concerned the construction of the Motor Drivers, Etc., Award - Southern Division and concerned the application of the award properly construed to a set of facts in order to determine whether wages were owing to Mr Smith for unpaid meal money. The indications that s. 331(b) may not be intended to apply to proceedings under s. 278 are to be found in the nature of the power at s. 278 and the history of s. 331(b).

The function of the Queensland Industrial Relations Commission, in applications under s. 278, is judicial in nature. It is concerned with the determination of existing rights and responsibilities. Such proceedings are not the occasion for the exercise of arbitral power to adjust the industrial instrument giving rise to the entitlement to avoid an outcome which, with the wisdom of hindsight, is thought not to be desirable. It is, we think, for that reason that s. 320(2) and (3) are made inapplicable to proceedings under s. 278, see s. 320(1)(a). But the power at s. 331(b) is not a power to deal with the merits of a claim otherwise than judicially. It is a power to dismiss a matter or refrain from hearing a matter for reasons unrelated to its merits. And the Court of Chancery, acting on the conscience of the parties, asserted authority to do just that many centuries ago.

Both the Conciliation and Arbitration Act 1932 and the Industrial Conciliation and Arbitration Act 1961 contained a counterpart to s. 331(b). Both legislative measures referred to a "cause" rather than an "industrial cause". The expression "industrial cause" was introduced by the counterpart provision of the Industrial Relations Act 1990. The definition was the same as the definition contained in Schedule 5 to the Industrial Relations Act 1999. [For reasons lost in history the definition was repealed in 1994 but reinstated by the Workplace Relations Act 1997.] We were initially attracted to the proposition that "cause" was qualified by the adjective "industrial" in an attempt to indicate that s.331(b) was to continue to be confined to collective arbitral litigation and was not to be available in matters analogous to civil litigation, which the Act of 1990 brought within the jurisdiction of the Commission. However, when the Industrial Relations Act 1999 is read as a whole, the use of the expression "industrial cause" is found to be so pervasive that the proper functioning of the Act is imperilled if the expression was denied its inclusive meaning. To take a simple example, neither the Industrial Court of Queensland, acting pursuant to s. 341, perhaps on an appeal from a criminal matter from an Industrial Magistrates Court, nor a Full Bench of the Queensland Industrial Relations Commission exercising power under s. 342, perhaps on an appeal from an Industrial Magistrate in a civil matter, would have power to set aside a decision and remit the matter to be heard and determined according to law even though findings of primary fact depending entirely upon assessments of credibility have not been made.

After some reflection, we have come to the conclusion that s. 331(b) is available in a proceeding in the Commission under s. 278. We recognise the consequence that those seeking to recover unpaid wages in the Commission will face a hurdle additional to that faced by applicants in the Industrial Magistrates Court under s. 399. Section 331(b) has no application to the Industrial Magistrates Court. But s. 278(7), dealing with a case where a matter has been referred by the Commission to an Industrial Magistrate, contemplates differences between proceedings under s. 278 and s. 399. [A further example might be that the Industrial Magistrates Court is not restricted to the truncated power over costs at s.335.] But the role of the Full Bench on an appeal under s. 342 is to construe the Industrial Relations Act 1999; not to usurp the power of the legislature and seek to "improve" upon the Act.

The failure of the preliminary point confronts the Appellant with an onerous task. The decision of the Commissioner who dealt with the matter at first instance is final and conclusive, s. 349(1)(e) and (2)(a). The decision may, of course, be challenged on the ground of error of law and of want or excess of jurisdiction by way of an appeal to the Industrial Court of Queensland, see ss. 349(5) and 341(1). By leave, which has here been granted, it may be challenged by a Full Bench of the Commission, see ss. 349(5) and 342(1).

Broad though the basis of appeal at s. 342 may be, what is permitted is an appeal. A second chance trial is not permitted. Subject to the limited ability to hear evidence afresh or hear additional evidence vested in the Full Bench by s. 348(2), the appeal is to be by way of rehearing on the record, s. 348(1). Further, the Appellant is bound by the conduct of its case at first instance, compare Coulton v Holcombe (1996) 162 CLR 1 at 7-8 per Gibbs CJ, Wilson, Brennan and Dawson JJ, University of Wollongong v Metwally (2) (1998) 59 ALJR 481 at 483. And because appeals are inherently about the correction of error, in dealing with a s. 342(1) appeal the Full Bench is not to go behind the decision of the Commissioner who dealt with the matter at first instance unless satisfied that the decision is wrong, compare Norbis v Norbis (1996) 161 CLR 513 at 518 and Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203 per Gleeson, Gaudron and Hayne JJ and at 224-225 per Kirby J, even on matters of inference, compare Director of Public Prosecutions (Cth) v Hart (2) [2005] 2 QdR 246 at 260 [28] per McPherson JA. And because the power at s. 331 is plainly discretionary and intended to allow some measure of latitude, the Full Bench must approach this particular decision with very considerable restraint, compare House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ, Norbis v Norbis (1986) 161 CLR 513 at 518-519, and Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Others (2000) 203 CLR 194 at 223-224 per Kirby J.

The Commissioner proceeded on the view that the issue before the Commission had been determined, albeit between different parties, by decision of Industrial Magistrate on 1 July 1999. It seems to be accepted that the Appellant was aware of the decision. The Commissioner noted the length of time which it had taken the Appellant to seek to change the award and/or reopen the matter of interpretation, noted that the employer had acted in reliance upon the decision of the Industrial Magistrate and (might), if the proceedings in the Commission continued and were decided adversely to the employer, be confronted with claims for back-pay reaching back six years.

It is apparent from the submissions which have been made on the appeal that the Commission may have misapprehended the facts. But the facts which were "misapprehended" were not the facts established by the evidence before the Commission but the "true" facts. The salaried lay advocate who represented the Appellant below chose not to call evidence. The only evidence before the Commission, apart from statements seriously made from the bar table, was affidavit evidence tendered by the Respondent. The lay advocate chose not to cross examine. The Commissioner did not "misapprehend" the evidence. It is far too late to contend that there was a different story to be told.

Having had the benefit of a fulsome argument, particularly upon the difficulties which might arise if s. 331(b) were held applicable to proceedings under s. 278, it seems to us that there were a range of matters which should (perhaps) have been considered at first instance and which may have led to an outcome favourable to the Appellant. There is the consideration that a unionist should not lose the right to his wages because of forensic error in litigation conducted on his behalf. There is the consideration that dismissal of the s. 278 proceedings might have been a futility in that Mr Smith might have himself have instituted proceedings. Indeed, there is the consideration that dismissal of the s. 278 proceedings might have been a futility because the Appellant might (arguably) have responded by taking proceedings under s. 339. But there were other factors, unfavourable to the Appellant, which were not taken into account. The critical argument advanced by the Appellant at first instance was that a point had been reached at which there was conflict between the decision of the Industrial Magistrate and a decision of the Commissioner sitting alone (other than the Commissioner seized of the present s. 278 application). One might legitimately have inquired why the Appellant had not sought (decisively) to deal with the matter of consistency by seeking that a case be stated for the opinion of the Industrial Court of Queensland, or seeking to have the s. 278 application referred to a Full Bench. It should be noted, because the Commissioner's decision expressly refers to the matter, that for all that was said about the matter of consistency the preferred outcome advanced by the Appellant's lay advocate was to seek a negotiated settlement. At page 9 of the transcript the advocate said:

"Thank you, Commissioner, as my colleague Mr Dwyer pointed out, the matter is only over $1425. We believe that this matter might be able to be settled without having to go into formal submissions even though that won't take up too much of this Commission anyway. But my client is prepared to look at an offer to try to get this thing settled also to sign a confidential deed of agreement in relation to the matter.".

That "preferred solution" would not have resolved the alleged inconsistency.

This Bench has some misgivings about the proceedings at first instance. We apprehend that the Appellant also has misgivings. But all the misgivings are about the case mounted by the Appellant, and not about the decision of the Commission.

We dismiss the appeal.

We reserve all questions about costs.

Dated 10 May 2006.

D.R. HALL, President.
D.A. SWAN, Deputy President.
K.L. EDWARDS, Commissioner.
Released: 10 May 2006 / Appearances:
Mr D. Quinn of Carne Reidy Herd, Solicitors, for the Appellant.
Mr J. Dwyer directly instructed for the Respondent.

Government Printer, Queensland

ÓThe State of Queensland 2006.