100211845

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH

APPLICANT

 -v-

 BURSWOOD RESORT (MANAGEMENT) LTD

RESPONDENT

CORAM  COMMISSIONER J H SMITH

  COMMISSIONER S WOOD

  COMMISSIONER J L HARRISON

DELIVERED WEDNESDAY, 10 JULY 2002

FILE NO. A 2 OF 2002

CITATION NO. 2002 WAIRC 05952

_______________________________________________________________________________

Result Application for new award dismissed.

Representation

Applicant Mr J Welsh

Respondent Mr G Blyth (as agent)

_______________________________________________________________________________

Reasons for Decision

1          The Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch (″the Union″) filed an application for a new award on 8 March 2002.  The proposed Award is titled ″Burswood Island Resort Employees Award 2002″.  The Union seeks to replace and supersede the Burswood Island Resort Employees Award, A23 and A25 of 1985 (″the Casino Award″), and the Burswood International Resort Casino Employees Industrial Agreement 2001 (″the Casino Agreement″) by the making of the proposed award.  The date of expiry of the Casin Agreement is 30 June 2002.  It is proposed by the Union that the term of the award is to commence on and from the first pay period after 1 July 2002, until 30 June 2003.  Burswood Resort (Management) Ltd (″the Respondent″) objects to the Union's application for a new award.   Alternatively, it says that if the Commission determines that a new award should issue, the Respondent puts forth a draft of a proposed award in its notice of answer and counterproposal that the Commission should make.

2          After the Union filed the application a s.32 conference was convened by the Commission on 16 May 2002.  At that conference the Respondent contended that as a matter of law, the claim for a new award cannot be made by the Union whilst the Casino Agreement continues to operate.  Following the s.32 conference the Chief Commissioner allocated this matter to a Commission in Court Session.  The Commission in Court Session convened a conference for directions under s.32 of the Industrial Relations Act 1979 (″the Act″) on 14 June 2002.  At the conclusion of the conference the Commission determined it would hear and determine the following matters as preliminary issues:

(a)   Whether there is jurisdiction to hear and determine the claim before the Commission in Court Session because of the operation of Clause 45 of the Casino Agreement;

(b)   Whether the Commission should dismiss the Union's application as not being in the public interest because of the operation of Clause 45 of the Industrial Agreement.

 The Commission directed the parties to provide its submissions in writing to the Commission.

No Jurisdiction

3         The Respondent submits there is no jurisdiction to hear and determine the claim before the Commission in Court Session because of the operation of Clause 45 – No extra claims of the Casino Agreement.  Clause 45 provides as follows:

″The Company and the Union agree that there will be no extra claims for the term    of this agreement and whilst it continues in force."

The Respondent says that Clause 45 operates to prevent the Union from making an application and it follows that the claim for a new award is not a valid application.  The Respondent goes so far as to say that in the absence of a valid application there is no ″industrial matter″ before the Commission.  In support of its argument the Respondent referred to the following Full Bench decisions of the New South Wales Industrial Commission.  In Electrical Trades Union of Australia v Nationwide News [1995] NSWIR Comm 65 del. 28 April 1995 and New South Wales Education Employees (Non Continuing Contract Employment) Award (1999) 92 IR 239 the New South Wales Commission dismissed the claims before the Commission on the basis that a no extra claims clause specified in the relevant awards precluded the claims from being pressed against an unwilling party.  However neither of these decisions considered whether the Commission had jurisdiction to hear and determine the claims.  It is apparent from both decisions that the New South Wales Commission declined to exercise its jurisdiction by refraining from dealing with the matters before it.

4         The Respondent has not pointed to any provisions in the Act which prohibits the Commission from dealing with the Union's claim.  It is our view that the Union's application is plainly an application before the Commission that raises an ″industrial matter″.  As the Union points out in its written submissions, the constraints on the jurisdiction of the Commission to deal with industrial matters affecting salary, wages and other remuneration and conditions of employment as set out in s.23(2)(a) and 23(3) of the Act.  None of these constraints has any bearing on this matter.

Public Interest

5         The Respondent says that in exercising its jurisdiction to dismiss the application the Commission should consider the objects of the Act, in particular s.6(d) of the Act.  Section 6(b), (c) and (d) of the Act provide:

  ″The principal objects of this Act are — 

 (b) to encourage, and provide means for, conciliation with a view to amicable agreement, thereby preventing and settling industrial disputes;

 (c) to provide means for preventing and settling industrial disputes not resolved by amicable agreement, including threatened, impending and probable industrial disputes, with the maximum of expedition and the minimum of legal form and technicality;

 (d) to provide for the observance and enforcement of agreements and awards made for the prevention or settlement of industrial disputes;″

6         The Respondent says that object 6(d) can best be achieved by dismissing the Union's application and that the objects in 6(b) and (c) should not operate to defeat the object of ″observance and enforcement of agreements."  In particular, it is submitted that the Union cannot rely on the objects of ″conciliation″ and ″preventing and settling″ of industrial disputes in furtherance of its claim.  The Respondent says the Casino Agreement has been made in settlement of an industrial dispute and must now be observed by the parties whilst it continues in force.  Secondly there can be no ″industrial dispute″ because Clause 45 prevents the parties from making any extra claims.

7         The Respondent also says that if a party initiates claims in breach of a ″no extra claims″ clause it is reasonable for the other party to simply disregard the claim without fear of becoming involved in an alleged industrial dispute.

8         The Respondent also argues that by entering into the Casino Agreement, in particular by agreeing to the ″no extra claims″ clause, the Union has given away a right that might otherwise exist for an award to be arbitrated.  In Civil Air Operations Officers' Association of Australia (1999) Print R4810 Duncan DP observed at paragraph [18] that a ″no extra claims″ clause in a certified agreement that applied during the term of the certified agreement had the effect that the parties could be said to have deferred the right to bring the application before the Commission during the currency of the period of the certified agreement.  The Respondent says having given away the right to arbitration of the new award (which is the clear affect of Clause 45 of the Casino Agreement), the Union must now choose between the protections it has whilst the industrial agreement remains in operation or alternatively, retire from the agreement (after its expiry date).  If it retires, the Casino Award will apply and then the Union may take steps to seek whatever award variation it (the Union) considers appropriate.

9         The Respondent says the Union's approach is inconsistent with the Statement of Principles – June 2001 State Wage Case decision (2001) 81 WAIG 1721.  In particular the Respondent says that the objectives of the principles are to encourage and promote enterprise bargaining with the award system as the ″safety net″.  Further the Respondent says it is for the parties at the enterprise to take responsibility for their own industrial relations affairs and to reach agreements appropriate to their enterprise.  The Respondent submits it follows that where agreement has been reached the agreement must then be observed.  The Respondent also says to allow the Union's claim will have the effect of ″flowing back″ matters contained in an industrial agreement to an award and this will prevent or substantially impede future enterprise negotiations between the Union and Burswood.  Furthermore the flow on effect of such a decision for other parties would be inconsistent with the objects of the Act.

10      The Union simply says that the discretionary power in s.27(1)(a) of the Act to dismiss an application on public interest grounds should not be exercised by the Commission in a factual vacuum.  The Union argues the question of public interest must be considered according to the principles of good conscience, equity and the substantial merits of the case.  Put simply, the Union says that to determine whether it is in the public interest to dismiss the Union's application, the Commission must take into account the evidence surrounding the case and the failure to do so may result in a miscarriage of justice by way of the wrongful exercise of discretion (House v King (1936) 55 CLR 499).  In other words, the Union says it needs an opportunity to address the Commission as to what is the appropriate way for parties who are unable to reach an agreement for an s.41 agreement, to deal with a continuing dispute.  The Union says that where a party such as the Respondent refuses to enter into enterprise bargaining negotiations that the parties have to go back to the award process (ALHMWU v Burswood Resort (Management) Ltd (2081) WAIG 2434).

Conclusion

11      It is our view that the Commission does have jurisdiction to deal with the Union's application for a new award.  Section 41 of the Act provides:

″(1) An agreement with respect to any industrial matter or for the prevention or resolution under this Act of disputes, disagreements, or questions relating thereto may be made between an organization or association of employees and any employer or organization or association of employers.

 (2) Subject to subsection (3) and section 41A, where the parties to an agreement referred to in subsection (1) apply to the Commission for registration of the agreement as an industrial agreement the Commission shall register the agreement as an industrial agreement.

 (3) Before registering an industrial agreement the Commission may require the parties thereto to effect such variation as the Commission considers necessary or desirable for the purpose of giving clear expression to the true intention of the parties.

 (4) An industrial agreement extends to and binds — 

 (a) all employees who are employed — 

  (i) in any calling mentioned in the industrial agreement in the industry or industries to which the industrial agreement applies; and

(ii) by an employer who is — 

 (I) a party to the industrial agreement; or

 (II) a member of an organization of employers that is a party to the industrial agreement or that is a member of an association of employers that is a party to the industrial agreement;

  and

 (b) all employers referred to in paragraph (a)(ii),

  and no other employee or employer, and its scope shall be expressly so limited in the industrial agreement.

 (5) An industrial agreement shall operate — 

 (a) in the area specified therein; and

 (b) for the term specified therein.

 (6) Notwithstanding the expiry of the term of an industrial agreement, it shall, subject to this Act, continue in force in respect of all parties thereto, except those who retire there from, until a new agreement or an award in substitution for the first‑mentioned agreement has been made.

 (7) At any time after, or not more than 30 days before, the expiry of an industrial agreement any party thereto may file in the office of the Registrar a notice in the prescribed form signifying his intention to retire there from at the expiration of 30 days from the date of such filing, and such party shall on the expiration of that period cease to be a party to the agreement."

12      It is our view that there is nothing in s.41, s.42 and s.43 of the Act which prohibits the Commission from hearing and determining an application for new award whilst an industrial agreement has not expired or continues on in force.  To the contrary, it is inherent in s.41(6) of the Act that an industrial agreement can cease to continue in force after the date of expiry when a new award is made in substitution for the industrial agreement.  In this case the application for an award makes it plain that the terms of the proposed award are only to take affect from the expiry of the term of the Casino Agreement.

13      However, it is our view that it is desirable and in the public interest to dismiss the Union's application pursuant to s.27(1)(a)(ii) of the Act.  In our view it is inherent in the objects of the Act and the entire scheme of the Act that the Commission is to encourage the parties to settle industrial disputes and where such disputes are resolved by amicable agreement by entering into a s.41 industrial agreement, the terms of that agreement should be adhered to.  Further it is our view by bringing a claim for an award and seeking arbitration, that action is in breach of Clause 45 of the Casino Agreement.  Pursuant to s.83 of the Act where a contravention or failure to comply with a provision of an industrial agreement is proved a penalty can be imposed by the Industrial Magistrate.  In Registrar v Amalgamated Metal Workers' and Shipwrights' Union of Western Australia (1989) 69 WAIG 29 and (1990) 70 WAIG 3947 the Full Bench upheld appeals by the Registrar (against a decision of the Industrial Magistrate), that there was a case to answer by the Union in respect of a "no extra claims" clause.  In the second appeal the Full Bench remitted the matter to the Industrial Magistrate to fix a penalty.

14      We agree that Clause 45 has the effect that the parties to the Casino Agreement agreed to defer extra claims for the term of the agreement.  However, we do not accept that the effect at law of Clause 45 prevents the Union from making claims after the term of the agreement has expired.  In our view the words in the extra claims clause ″and whilst it continues in force″ is repugnant to and thus inconsistent with s.41(6) of the Act.  Those words seek to prohibit and render unlawful (through the operation of s.83) the right of a party to seek to make a new industrial agreement or award which s.41(6) makes lawful.  It is also our view that these words are capable of being severed so that clause 45 in its entirety is not rendered invalid.  Section 41(6) makes it plain that a new agreement or award can be made in substitution for an earlier industrial agreement (once the earlier agreement has expired) and the earlier industrial agreement is rendered inoperative.  When this section is read together with the objects of the Act it is plain that the parties cannot enter into an agreement to prohibit an application for an award.  We do not agree that this can only be done if the Union retires from the agreement.  Section 41(6) provides that an industrial agreement continues in force except when a party retires from the agreement or until a new agreement or award is made.  Section 41(6) clearly contemplates two circumstances in which an industrial agreement can cease to have effect, one by retiring from the agreement or the making of a new industrial instrument.  It is inherent in s.41(6) that once the term of an industrial agreement has expired parties are entitled to enter into negotiations and take steps if necessary to seek arbitration of an award in substitution for an earlier industrial agreement that continues in force after its term has expired.