100318924

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES BURSWOOD RESORT (MANAGEMENT) LTD

APPELLANT

 -and-

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

RESPONDENT

CORAM FULL BENCH

  HIS HONOUR THE PRESIDENT P J SHARKEY

  CHIEF COMMISSIONER W S COLEMAN

  COMMISSIONER S WOOD

DELIVERED THURSDAY, 2 OCTOBER 2003

FILE NO/S FBA 19 OF 2003

CITATION NO. 2003 WAIRC 09550

______________________________________________________________________________

Catchwords  Industrial Law (WA) – Order to redeploy employee made following s44 conference– Appeal to the Full Bench – Orders outside s44 power – Failure to provide reasons for decision – Failure to comply with s35 of the Act – Appeal upheld – Decision at first instance quashed – Industrial Relations Act 1979 (as amended), s23A, s35, s44, s44(6)(ba), s44(6)(bb)

Decision  Appeal upheld; order of the Commission made on 4 August 2003 in                             matter No. C 101 of 2003 quashed

Appearances

Appellant   Mr G Blyth, as agent

Respondent   Mr J Winters, Industrial Officer

_______________________________________________________________________________

Reasons for Decision

1         These are the unanimous reasons for the decision of the Full Bench.

INTRODUCTION

2         This is an appeal by the above-named appellant (hereinafter called “Burswood”) against the decision of the Commission, constituted by a single Commissioner, made on 4 August 2003 in matter No C101 of 2003.

3         The appeal is brought pursuant to s.49 of the Industrial Relations Act 1979 (as amended) (hereinafter called “the Act”).

4         We reproduce hereunder the order appealed against, including the recitals thereto, because the reasons for the order appear only as part of the recitals to it (see pages 8-9 of the appeal book (hereinafter referred to as “AB”)):-

“WHEREAS on 26 May 2003 the applicant applied to the Commission for a conference pursuant to Section 44 of the Industrial Relations Act 1979 (“the Act”); and

WHEREAS on 10 June 2003 the Commission convened a conference for the purpose of conciliating between the parties in relation to Mr  Kieran Neal, a member of the applicant union, and the parties undertook to negotiate about the issues; and

WHEREAS a report back conference was held on 16 July 2003 and the Commission was advised that the issues in dispute remained unresolved and the parties undertook to hold further discussions; and

WHEREAS a report back conference was held on 31 July 2003 and the Commission was informed that the applicant and the respondent remained in dispute in relation to the terms and conditions of employment being offered to Mr Neal and back pay owing to Mr Neal, and at the conference Mr Neal was advised that if he did not accept the respondent’s offer of alternative employment that he would be terminated; and

WHEREAS a further conference was convened for 1 August 2003 to hear from the parties in relation to whether or not the issues in dispute should be set down for hearing and determination and having heard from the parties the Commission formed the view that in the circumstances the issues in dispute should be set down for hearing and determination and that Mr Neal should be redeployed to the position of Electronic Gaming Assistant;

NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Act, and in particular s.44(6)(ba)(ii), hereby orders:

1. THAT Burswood Resort (Management) Ltd redeploy Mr Kieran Neal forthwith to the full-time position of Electronic Gaming Assistant under the terms and conditions as detailed in correspondence from Ms Kathleen Drimatis to the applicant dated 23 June 2003. 

2. THAT Mr Neal shall remain employed in this position under these terms and conditions whilst the Commission hears and determines the following:

a) Whether or not Mr Neal is owed wages for the hours that he has been fit to work but has not been offered work by the respondent.

b) The terms and conditions of employment that should apply to the work that Mr Neal is undertaking in his role as an Electronic Gaming Assistant.”

GROUNDS OF APPEAL

5         It is against that decision that Burswood now appeals.  The appeal is made on the following grounds (see pages 2-4 (AB)):-

“1. The Commissioner erred in law in making the order [2003 WAIRC 08920] pursuant to section 44(6)(ba)(ii) of the Industrial Relations Act 1979 (WA) (“the Act”), without making a finding that the order was necessary or required or connected to enabling conciliation or arbitration of the matters in question.

Particulars

(a) The order obliges the Appellant to redeploy a Mr Kieran Neal forthwith to the position of Electronic Gaming Assistant and the Commissioner did not find the redeployment of Mr Neal was necessary or required or connected to enabling conciliation or arbitration of the matters in question.

(b) The order does not maintain the status quo pending conciliation or arbitration of the matters in question and the matters in dispute are not advanced by the making of the order.

 2. The Commissioner erred in law by making an order that the Appellant redeploy Mr Neal in a position to be created of Electronic Gaming Assistant when the Commission is without power to make such an order.

Particulars

(a) There is no position of an Electronic Gaming Assistant in the Appellant’s business.

 3. The Commissioner erred in law by making the order pursuant to section 44(6)(ba)(ii) of the Act operating as a final order and not an interim order.

Particulars

(a) The order requires the Appellant to continue to redeploy Mr Neal in the created position beyond the period the Commissioner determines the outstanding matters identified in clause 2 of the order.

 4. The Commissioner erred in law by failing to give any reasons for decision as required by section 35 of the Act.  In the alternative, the reasons for decision contained in the preamble to the order are so manifestly inadequate as to constitute a failure by the Commissioner to properly exercise the Commission’s jurisdiction.

 5. The Commissioner erred in law by failing to issue minutes of the Commissioner’s proposed order in accordance with the requirements of section 35 of the Act.

 6. The Commissioner erred in law by failing to afford the parties an opportunity to speak to the minutes of the Commissioner’s decision in accordance with the requirements of section 35 of the Act.

 7. Such other grounds as the Commission deems just.

 Public Interest

 8. If the order is held to be a finding, the appeal raises matters that are of such importance that in the public interest leave to appeal should be granted.

Particulars

(a) The order made is not connected to enabling conciliation or arbitration of the matters in question.

b) The order is made without power.

(c) The question of the Commission’s power to require an employer to create a position that meets the abilities of an employee has not previously been determined by a Full Bench.

(d) The Commissioner failed to comply with section 35 of the Act.

(e) The failure to give any reasons for decision, or adequate reasons for decision.

 Order Sought on Appeal

 9. The Appellant says the order made by the Commissioner should be quashed.”

BACKGROUND

6         The above-named respondent (hereinafter called “the ALHMWU”) is an organisation of employees as the term “organisation” is defined in s.7 of the Act.

7         Burswood is an employer and was, at all material times, the employer of Mr Kieran Neal.  At all material times Mr Neal was employed in a gambling casino conducted by Burswood at Perth in the State of Western Australia.

8         Mr Neal, one assumes, was, at all material times, a member of the ALHMWU.

9         The ALHMWU made an application to the Commission, pursuant to s.44 of the Act, for the Commission to hold a conference under that section.  Burswood was named as a respondent to the application, which was filed on 26 May 2003 and which bears the number C101 of 2003.

10      The grounds of the application (see page 6 (AB)) are as follows:-

“Mr Kieren Neal, a member of the Australian Liquor, Hospitality and Miscellaneous Workers Union (“ALHMWU’) is employed by Burswood Resort (Management) Ltd (“BRML”).  Mr Neal previously worked as a Croupier, however suffered an injury at work and as a result of that injury was unable to continue in his position as a Croupier.  Mr Neal had a workers (sic) compensation claim and that claim was settled.  A condition of the settlement was that Mr Neal was not to work in his old role as a Croupier.

Since Mr Neal’s return to work at BRML, he has not been provided with any suitable alternative employment.  He has not been required to work on a full time basis, despite still being a full time employee.

Mr Neal is a long service employee at Burswood and has worked there in excess of fifteen (15) years.  He has numerous financial commitments and, due to Mr Neal not being provided work, he is unable to meet those commitments.  Mr Neal has worked one (1) shift in the past 2 ½ weeks and for all intents and purposes, is still a full time employee.

BRML has not found Mr Neal suitable alternative full time employment, despite the efforts of Mr Neal applying for numerous positions of BRML.  It is the Union’s belief that BRML intends to sack Mr Neal.

The Union seeks the assistance of the Commission in resolving the issues of redeployment of Mr Neal to a suitable position within Burswood, compensate Mr Neal for the hours that he has not been paid for, given he is a full time employee, and ensure Mr Neal is not unfairly dismissed.

…”

11      The matter came on for s.44 conferences, and an order was, in due course, made, in the terms which we have reproduced above.

12      It should be observed that on 23 June 2003, whilst conferences in the Commission were continuing, Burswood wrote to Mr Neal making an offer to employ him, which was, in fact, not accepted, the offer only being open until close of business on Wednesday, 25 June 2003 (see pages 10-12 (AB)).

13      What led to the application and orders being made was the following chain of events.

14      As a result of a work related injury, which occurred in or about November 2000, Mr Neal had to absent himself from work and received workers’ compensation benefits in respect of the injury.

15      On or about 6 March 2003, a settlement of the claim in relation to that injury included an acceptance that he could not, at any time in the future, return to the duties of a croupier/dealer, the position which he occupied.

16      From the time when he was injured to December 2002 Mr Neal performed modified or light duties as a croupier/dealer.

17      He then received further medical advice, and following that advice, he ceased to perform any work as a croupier/dealer.

18      He was placed on a “work capacity” program by Burswood to assist him in finding suitable alternative employment.  This provided training for him in new work and some “intermittent work” in which he performed various tasks for Burswood.

19      In or about May 2003, it was said by Burswood that its capacity to find alternative work for him had diminished.  It therefore ceased to pay him any wages or salary.  The application at first instance was then made.  It is significant that the application reflected a central concern of the ALHMWU that Mr Neal would be dismissed and that is substantially what it sought to prevent (AB 6).

20      There were conciliation conferences between the parties held by the Commissioner at first instance on 10 June 2003 and on 16 and 31 July 2003.  At the conclusion of the conference on 31 July 2003, all matters remained in dispute between the parties. 

21      Accordingly, the Commissioner directed that a further conference take place at 3.30pm on Friday, 1 August 2003, which it did.  That conference, it was clearly submitted, took place to determine what, if any, “interim orders” should be made and whether or not any matters should be set down for hearing and determination.

22      The ALHMWU filed written submissions and a minute of proposed order, before that conference, and relied on s.44(6)(ba)(i) and s.44(6)(bb)(i) of the Act as the basis for an order.

23      Burswood objected to any “interim” order being made, submitting that none of the “requirements of the Act” for making an order had been established to exist.

24      Burswood gave an undertaking to the Commissioner at first instance at the conference that Mr Neal would not be terminated from his position as a croupier/dealer without giving the Commission and the ALHMWU at least seven days written notice.  That undertaking was characterised on appeal by Mr Winters, who appeared for the ALHMWU, as a shallow undertaking, and it certainly was, given that a central issue was whether Mr Neal would be dismissed or not.

25      Burswood also submitted that the Commission is without power to make an order requiring an employer to create a new position, which meets the abilities of an employee who is no longer fit to perform the work contemplated by the employee’s contract of employment.  Further, it was asserted that, in any event, the merits of the case were against an order being made.

26      At the core of this matter was the risk of Burswood terminating Mr Neal’s employment and the wish of the ALHMWU to prevent that occurring.

27      We should also say that, at the time and now, there was and is a dispute about the effect of an offer made by letter by Burswood to the ALHMWU dated 23 June 2003 (see pages 10-12 (AB)).  The letter made it clear that in the course of the conference on 10 June 2003, Burswood had been “able to combine some tasks to form a full-time role” for Mr Neal.  Further, the letter said:-

“This role involves the combination of the full range of TAB Operator duties and one minor task currently performed by Electronic Gaming Attendants, which is the function of processing hand pays”.

28      The offer was made subject to certain conditions outlined in the letter.  The letter was also expressed to be subject to acceptance by close of business on Wednesday, 25 June 2003.  There was no evidence that the offer contained in the letter had been accepted on the conditions offered in the letter or that the offer had been varied and accepted.

29      The ALHMWU’s case, inter alia, is that it accepted the offer, but that the terms and conditions applying to the position were not agreed.  Burswood maintains that the offer was not accepted and therefore lapsed.

30      One sticking point is and was that the ALHMWU wishes the position to be an “award” position, and Burswood does not agree to the position being an “award” position.

31      It was quite clear, as the Commissioner at first instance found, and that finding was not disputed, that a dispute remained between the parties about the terms and conditions of the employment being offered, and that if Mr Neal did not accept the offer, that he would be dismissed.  It is not clear whether that offer is the offer referred to the letter of 23 June 2003, or another offer.

32      It is quite clear that the offer of employment of 25 June 2003 could not be accepted in part, that is that the position could not be accepted and the terms and conditions agreed later.  That was not the nature of the offer.  In its terms, unless the offer were accepted, it clearly lapsed.  That was the case.

33      In any event, it is quite clear that no offer of employment made by Burswood was accepted by the ALHMWU.  What is quite clear is that there were no matters in dispute agreed to, and that the Commissioner proceeded to arbitration, listing the matter accordingly in accordance with s.44(9) of the Act.  Further, the Commissioner declared that the two issues were to be determined by arbitration.

34      The Full Bench was informed by the parties that the matter was listed for hearing and determination by way of arbitration on 18 September 2003.

35      We now turn to the grounds of appeal.

Ground 1 and 3

36      The complaint about the order made, in that ground, is that the Commissioner at first instance made an order pursuant to s.44(6)(ba)(ii) of the Act without making a finding that the order was necessary or required or connected to enabling conciliation or arbitration of the matters in question.

37      The complaint in the ground further alleges that the order requiring Burswood to deploy Mr Neal was not expressed by the Commissioner at first instance to be necessary or required or connected to enabling conciliation or arbitration of the matters in question.  Further, it was not expressed to be directed to maintaining the status quo pending conciliation and/or arbitration of the matters in dispute.  Further, these objects were not advanced by the making of the order.

38      The powers conferred by s.44 of the Act on the Commission, constituted by a single Commissioner, are now well settled.  S.44(6) empowers the Commission to, pursuant to s.44(6)(ba) and (bb) of the Act, give certain directions and make certain orders.  The Commission may do so only “at or in relation to a conference”.

39      Under s.44(6)(ba), the Commission can make certain orders only if it holds the opinion that such directions and/or orders will:-

a)                    prevent the deterioration of industrial relations in respect of the matter in question until conciliation or arbitration has resolved that matter.

b)                    enable conciliation or arbitration to resolve the matter in question; or

c)                    encourage the parties to exchange or divulge attitudes or information which in the opinion of the Commission would resist in the resolution of the matter in question.

40      Under s.44(6)(bb), the Commission may also, inter alia, again with respect to industrial matters, give any direction or make any order which the Commission is otherwise ordered to make under the Act.  Such an order under s.44(6)(ba) or (6)(bb) must be temporary and for the limited purposes.  The Commission cannot determine the matter in dispute before the Commission, and that can only be done by the Commission in the exercise of its arbitration power, not arising out of s.44(6).

41      This order was expressed as a final order which determined the dispute between the parties about Mr Neal’s employment future which was entirely in dispute still.  To do so was beyond power.

42      The exercise of the power in the absence of agreement was beyond the power conferred by s.44(8)(d) of the Act, because there was no order by agreement or consent.

43      In this matter, the conciliation conference which had taken place over a number of dates, had concluded within the meaning of s.44(9).  The question, dispute or disagreement in relation to the industrial matter before the Commission was not settled by agreement.  Therefore, the only power apart from powers under s.44(6) which the Commission could exercise was the power to hear and determine the question, dispute or disagreement which, partly, the Commissioner set out to do.  There is nothing in the order or recitals, express or implied, which would establish that the order was made because of the requisite opinion founded on s.44(6)(ba) or that the power was validly exercised pursuant to and within the prescription of s.44(6)(ba).

44      Indeed, on a fair reading, the order could not be said to facilitate arbitration because it purported, in an order made at the final conciliation conference, to resolve without arbitrating it, a question which was in issue and part of the industrial matter before the Commission and which required determination since there was no agreement.  Most cogently, the order was incompetent because it was an order purporting to finally determine the essence of the matter in dispute without agreement or without hearing or determining the matter and made out of a conciliation conference.

45      Thus, on a fair reading of the order appealed against, nothing was said in it to indicate that the order is founded on or within a power conferred on the Commission by s.44(6) or otherwise by s.44.

 In particular,

(a)            There is no declaration or assertion or expression that the orders were made to prevent the deterioration of industrial relations in respect of the matter until conciliation or arbitration resolved the matter in question.

(b)            There is no declaration or expression or assertion that the order or orders made are being made in order to enable conciliation or arbitration to resolve the matter in question.  Indeed, orders could not be made to enable conciliation to resolve the matter in question because matters had proceeded past that stage.

(c)            From the tenor of the orders it is clear that the Commission has not made an order of a temporary nature but has, in the absence of agreement, purported to finally determine a matter not agreed, which the Commission was not empowered to do.  That is, the Commission purported to order a redeployment in employment when the question of any employment in the future by Burswood was entirely part of and the essence of the matter in dispute.

(d)            Further, the order is beyond power because part of it is not interim but is final in that redeployment to a new position is ordered, but not ordered for a finite period or on an interim basis or for the express and limited purposes of preventing the deterioration of industrial relations in respect of the matter in question.

(e)            In particular too, the words limiting the orders “until arbitration has resolved that matter” were not used and should have been in those express terms or something similar.

(f)            The Commission acted beyond power in purporting to make a final order determining the matter in dispute without proceeding to arbitration when there was no power to do so, there being no agreement reached between the parties.

(g)            The Commission also erred and acted beyond power in failing to place the whole of the dispute before itself for arbitration.

(h)            The Commission’s duty was to refer the whole of the dispute for arbitration (see Registrar v AMWU (1989) 69 WAIG 1904 at 1906 (FB) where these matters were generally canvassed by the Full Bench). 

(i)            We quote the dicta of the Full Bench (Sharkey P, Coleman CC and Salmon C) in that case, as follows:-

“There is no doubt that s.44(6)(ba) and (bb) orders can only be made on an interim basis and not to finally dispose of a matter, and that they must be clearly made in the words of s.44(6) “at or in relation to a conference” under this section.  It is also clear that all s.44(6) orders are for a limited purpose.  What happens is that the Commission summonses parties to a conference of its own motion or upon the application of a party named in s.44(7)(a).  If agreement is reached at the conference then the Commission may make an order or not under s.44(8).  If at the conclusion of a conference held under s.44 the matter has not been settled by agreement between all of the parties, then the Commission constituted in accordance with s.44(11) and (12) is empowered to hear and determine the question, dispute or disagreement and may make an order binding on the parties.”

46      For all of those reasons the Commission acted without and or beyond the power conferred on it by s.44 and the orders made by the Commission were invalid.

Grounds 4, 5 and 6

47      We now turn to grounds 4, 5 and 6.  It is trite to observe that the Commission is required to give adequate reasons for decision to comply with the mandatory requirement of s.35 of the Act (see Ruane v Woodside Offshore Petroleum Pty Ltd 71 WAIG 913 at 914-5 (FB) and see also Robe River Iron Ore Associates v Amalgamated Metalworkers and Shipwrights Union (1990) 69 WAIG 990 at 996 (IAC) per Nicholson J).

48      The reasons given in the recital to the order do not at all explain why the order was made, and certainly do not do so adequately within the principle in Ruane v Woodside Offshore Petroleum Pty Ltd (op cit).  Our observation of the omissions from the order and the recital to the order above explain the lack of reasons.  The words used however, are so general that they are insufficient to bring to the mind of the reader a clear understanding of why the order was made, particularly read with the omissions from the order and reasons.  (See also East v Picton Press Pty Ltd (2001) 81 WAIG 1367 at 1370 (FB)).

49      The Commissioner at first instance therefore erred in law by failing to provide the reasons for decision required by the statute as a mandatory duty.

50      Ground 4 is therefore made out.

51      Ground 5 alleges that the Commissioner at first instance erred in law by failing to issue minutes of the Commissioner’s proposed order as s.35 of the Act requires, and therefore that the decision of the Commission, with certain exceptions, of which this decision was not one, was not, as it should be, before it was delivered, drawn up in the form of minutes which are then required to be handed down to the parties concerned.  The parties then are required at a time fixed by the Commission to be entitled to speak to the minutes of the decision after which the Commission may vary the decision.

52      At first instance the Commission did not comply with its statutory duty under s.35 of the Act in that it failed to:-

a)                    Draw the order up in the form of minutes before it was delivered, or at all.

b)                    Hand minutes down to the parties concerned.

c)                    Fix a time for them to speak to matters contained in the minutes. 

Further, contrary to its statutory duty the Commission omitted to comply with (a), (b) and (c) above when the parties did not consent to a waiver of the requirements of s.35 of the Act and further delivered a decision without doing what we have said above was required by the Act to be done.

There was therefore a clear breach of the mandatory duty of the Commission under s.35 and the order made had no statutory validity and was null and void.

53      Accordingly, the Commissioner at first instance erred in law, and grounds 4, 5 and 6 are made out.

Ground 2

54      By this ground, it was alleged that the Commissioner at first instance erred in law in making an order that Burswood redeploy (ie) re-employ Mr Neal in a position to be created, namely that of electronic gaming assistant at Burswood, because the Commissioner is without power to do so.  As we understand the submissions in support of that ground, there is no power to order re-deployment if that means that a position has to be created by the employer.  Such a power, it is said, does not exist.  The only power which can be exercised in that respect is pursuant to s.23A of the Act, so the submission went, and such a power, as that that was purported to be exercised, does not exist under s.23A.  That is not an argument which can relate to this matter.  This matter was not a claim of unfair dismissal at all.  It is quite clear that, at all material times, there had been no dismissal.  It is still the case that Mr Neal has not been dismissed.  Indeed, as was admitted by the parties, and as was common ground, the main issue was the prevention of Mr Neal’s dismissal and the question of redeployment to prevent dismissal.

55      It was the case that Burswood had made an offer to redeploy him to resolve that dispute, but that the offer had not been accepted.  The question of redeployment after a dismissal simply did not arise there being no dismissal and that argument had no application to this case.  Accordingly, there is no merit in that ground, for those reasons.

56      Further, there is an unlimited power, in our opinion, limited only by the four corners of the Act, under s.44 to make orders on an interim basis for the purposes prescribed by s.44.  It is obviously within power to require the employer, pending and for the purposes of conciliation and/or arbitration, to order employment of a person for that time whether a position has to be found for him/her or not.  The limitations applying under s.23A may not therefore apply to an order made under s.44(6).

Finding or Final Decision ?

57      No real question arose about whether the decision was a finding or not, it being accepted by the parties that the decision appealed against was a “finding” as defined in s.7 of the Act and the matter proceeded on that basis.

58      Quite clearly, the decision, as it stands, is a decision within the meaning of “finding”, as defined in s.7 of the Act, which is a decision, determination or ruling made in the course of proceedings that does not finally decide, determine or dispose of the matter to which the proceedings relate, because only part of the matter purports to have been disposed of.  Further, part of the matter has not been disposed of, and, thus, whilst part of the matter remains undisposed of on a final basis, then the decision is a “finding”.  Put another way too, if only part of a matter is determined, the matter, as a whole matter, is not finally decided or disposed of because there is more to be decided.  That was the case here of course, even if the Commission had acted within power, which it had not.

59      In any event, it was, as we observed above, not within the competence of the Commission to even partly dispose of the matter.

60      However, in our opinion, within the meaning of s.49(2a) of the Act, the matter is one of such importance that in the public interest an appeal should lie because:-

a)                    This was a case where the Commission acted beyond or without power.

b)                    S.35 of the Act had not been complied with in a number of respects rendering the proceedings invalid.

c)                    The question of re-employment and of availability of a position arose for the first time.  (See s.23A(4)).

(See generally Robe River Iron Ore Associates v Amalgamated Metalworkers and Shipwrights Union (1989) 69 WAIG 1873 at 1878-1879 (FB)).

61      For all of those reasons, we would find, within the meaning of s.49(2a) of the Act that the question before the Commission was a matter of such importance that in the opinion of the Full Bench an appeal would lie, and, for those reasons, we also agreed to uphold the appeal and quash the decision at first instance.