FD100319430

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

  COMMISSIONER P E SCOTT

  COMMISSIONER J H SMITH

DELIVERED THURSDAY, 6 NOVEMBER 2003

FILE NO/S FBA 30 OF 2003

CITATION NO. 2003 WAIRC 09968

_______________________________________________________________________________

Catchwords  Industrial Law (WA) – Appeal to the Full Bench against an interim order made pursuant to a s44 conference – Respondent ordered to provide full-time employment to employee pending arbitration of the dispute – Interim order to redeploy employee was competent and within power – No failure to comply with s35 of the Industrial Relations Act 1979 (as amended) – Adequate reasons for decision provided – Appeal not of sufficient importance in the public interest s.49(2a) – Industrial Relations Act 1979 (as amended) s6(ag), (b), (c) and (d), s26(1)(a), (c) and (d), s26(2), s35, s44, s44(6), s44(6)(ba), s44(6)(bb), s49(2a)

Decision  Appeal dismissed

Appearances

Appellant   Mr G Blyth, as agent

Respondent   Ms S Northcott, Industrial Officer

_______________________________________________________________________________

Reasons for Decision

THE PRESIDENT:

INTRODUCTION

1          This is an appeal by the above-named appellant employer, Burswood Resort (Management) Ltd (hereinafter called “Burswood”), against the decision of a single Commissioner made on 18 September 2003 in matter No CR 101 of 2003, brought pursuant to s49 of the Industrial Relations Act 1979 (as amended) (hereinafter called “the Act”).

2          At all material times, Burswood was an employer, and, at all material times, the respondent was an “organisation” as that is defined in s7 of the Act.

THE DECISION APPEALED AGAINST

3          The appeal is against a decision, constituted by an order (hereinafter called “the second order”), made by the Commissioner pursuant to s44 of the Act, and which I now produce hereunder in full, together with the recitals, for convenience (see pages 8-11 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 pursuant to s44 of the Act for the purpose of conciliating between the parties in relation to back pay owing to one of the applicant’s members, Mr Kieran Neal, and the possibility of re-deploying Mr Neal to suitable alternative employment with the respondent and the parties undertook to negotiate about the issues in dispute;

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 further report back conference was held on 31 July 2003;

AND WHEREAS at the conferences held on 10 June 2003, 16 July 2003 and 31 July 2003 the Commission was informed that:

a) Mr Neal has been employed by the respondent for approximately 15 years.  From November 2000 to December 2002 Mr Neal was unable to perform his full duties as a croupier due to a work related injury.  As a result of Mr Neal’s workers’ compensation claim being settled in March 2003 the respondent has endeavoured to place Mr Neal into suitable alternative employment.

b) On 23 June 2003 the respondent offered Mr Neal a position of Electronic Gaming Assistant and Mr Neal accepted this position however, the applicant and the respondent were in dispute about the terms and conditions of employment being offered to Mr Neal in relation to this position.

c) On 31 July 2003 the applicant was advised by the respondent that if Mr Neal did not accept the Electronic Gaming Assistant position which had been created by the respondent and offered to Mr Neal on the respondent’s terms and conditions then his services would be terminated and that the respondent would not take such action without giving seven days notice of its intention to terminate Mr Neal.

d) The applicant and the respondent remained in dispute about back pay owing to Mr Neal for hours that he was available to work and was not required by the respondent to work.

AND WHEREAS a further conference was convened on 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 WHEREAS 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 an interim order should issue to deal with Mr Neal’s employment status pending the outcome of arbitration of the issues in dispute;

AND WHEREAS the Commission formed the view that Mr Neal should be redeployed to the position of electronic gaming assistant on an interim basis and an order issued on 4 August 2003 in the following terms:

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.

AND WHEREAS on 6 August 2003 the respondent lodged an appeal against the decision of the Commission in relation to the order that issued in matter C101 of 2003 on 4 August 2003;

AND WHEREAS the Commission convened further conferences on 3 and 5 September 2003 and the respondent argued that the issue of whether or not the respondent had an obligation to transfer Mr Neal to an alternative position should be included in the memorandum of matters for hearing and determination and as this was a matter initially raised by the applicant as an issue in relation to this dispute this issue was included in an amended memorandum of matters for hearing and determination which was issued to the parties on 8 September 2003;

AND WHEREAS at a hearing on 15 September 2003 the Full Bench of the Commission upheld the respondent’s appeal and the interim order was quashed;

AND WHEREAS on 17 September 2003 the Commission convened an urgent conference and was informed that Mr Neal was no longer undertaking the duties of the position of electronic gaming assistant and that he was currently not undertaking work related duties and therefore not receiving wages;

AND WHEREAS the respondent sought to adjourn the hearing in relation to the issues in dispute given that the Full Bench had not yet issued its reasons for decision in FBA 19 of 2003;

AND WHEREAS the Commission is of the opinion that an interim order is necessary to deal with Mr Neal’s current employment status pending the hearing and determination of the issues in dispute and that the hearing set down for 18 September 2003 be vacated as a result of further discussions of the issues in dispute and that the hearing should be re-convened as a matter of urgency;

AND WHEREAS a Speaking to the Minutes was held on 18 September 2003 in respect to the Minutes of Proposed Order that issued on 17 September 2003 and after hearing from the parties the Commission formed the view that amendments should be made to the proposed order;

NOW THEREFORE, the Commission having formed the view that in order for arbitration to occur to resolve the matters in dispute, and pursuant to the powers conferred on it under the Act, in particular s.44(6)(ba)(ii), hereby orders:

1. THAT on an interim basis the respondent continue to employ Mr Kieran Neal on a full-time basis under his existing terms and conditions of employment undertaking meaningful and appropriate duties which may include TAB duties and assisting with electronic gaming functions pending the outcome of arbitration in relation to this matter. 

2. THAT Mr Neal shall remain undertaking these duties until the Commission hears and determines the issues in dispute relating to the following:

a) If the Electronic Gaming Assistant position offered to Mr Neal and accepted by him remains available and is to be performed by Mr Neal, the terms and conditions of employment that should apply to the duties of this position.

b) 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.

3) The terms and conditions in Clause 17. – Meal and Rest Breaks of the Burswood International Resort Casino Employees Award 2002 No A4 of 2003 applicable to a Croupier/Dealer shall not apply to Mr Neal whilst performing duties other than those of a Croupier/Dealer.

4) Nothing in this order prevents the respondent from dismissing Mr Neal for misconduct.

5) A liberty to apply is reserved to the parties in the event of changed circumstances.”

There were no reasons for decision separate from the recitals to the order given by the Commission.

GROUNDS OF APPEAL

4          It is against that decision that Burswood now appeals on the following grounds, as amended (see pages 2-4 (AB)):-

“1. The Commissioner erred in law in making the order on 18 September 2003 [2003 WAIRC 09414] (“the Second Order”) when that order is, in substance, an order having the same effect as the order made by the Commissioner on 4 August 2003 [2003 WAIRC 08920] (“the First Order”) that was quashed on appeal by the Full Bench on 15 September 2003 [2003 WAIRC 09372] (“the Appeal”).

Particulars

(a) The First Order obliged the Appellant to re-deploy Mr Kieran Neal forthwith to the position of Electronic Gaming Assistant.  Mr Neal is employed as a Croupier/Dealer but is not fit to fully perform that work due to a work related injury.

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

(c) The Second Order obliges that on an interim basis the Appellant continue to employ Mr Kieran Neal on a full-time basis under his existing terms and conditions of employment undertaking meaningful and appropriate duties which may include TAB duties and assisting with electronic gaining functions pending the outcome of arbitration in relation to the matter.

(d) The said “TAB duties and assisting with electronic gaining functions” are the same duties as those previously identified for the proposed Electronic Gaming Assistant position.

2. The Commissioner erred in law in making the Second Order pursuant to section 44(6)(ba)(ii) of the Industrial Relations Act 1979 (WA) (“the Act”) without making a finding that the order enabled conciliation or arbitration of the matters in question and, therefore, the order was made without power.

Particulars

(a) The preamble to the Second Order records the Commissioner formed an opinion that an interim order was necessary to deal with Mr Neal’s employment status pending the hearing and determination of the matters in dispute.

(b) The Second Order does not affect Mr Neal’s employment status.

(c) The Second Order interferes with the status quo that was re-established by the Full Bench in the Appeal.

(d) The making of the Second Order does not advance the matters in dispute and those matters can be arbitrated without the Second Order.

(e) There was no evidence to support a finding nor is it apparent how the Second Order would enable conciliation or arbitration to resolve the matters in dispute.

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 Second Order are so manifestly inadequate as to constitute a failure by the Commissioner to properly exercise the Commission’s jurisdiction.

5. Such other grounds as the Commission deems just.

Public Interest

6. The appeal raises matters that are of such importance that a Full Bench can form an opinion that, in the public interest, an appeal should lie.

Particulars

(a) The Second Order is an order that, in substance, has the same effect as the First Order quashed on appeal by the Full Bench.

(b) The question of the Commission’s power to require an employer to create a position that meets the abilities of an employee was directly raised in the Appeal and the Full Bench has determined its reasons for decision will issue at a future date.  The Commissioner was required to await those reasons for decision.

(c) The Second Order is not connected to enabling conciliation or arbitration of the matters in question and, therefore, was made without power.

(d) The Commissioner failed to comply with the requirement of section 35 of the Act to give any reasons, or adequate reasons, for decision.

Order Sought on Appeal

7. The Appellant says the Second Order made by the Commissioner should be quashed.”

(Ground 3 was withdrawn, so I have deleted it from the grounds of appeal reproduced above).

BACKGROUND

5          Mr Kieran Neal is and was, at all material times, employed at Burswood’s casino premises in Perth.  He was and is a member of the respondent organisation which is a party to this appeal and which was the applicant in proceedings at first instance.  The history prior to the first order being made of this matter is set out in detail in this Commission in Burswood Resort (Management) Ltd v ALHMWU (2003) 83 WAIG 3314 (FB) (“the first appeal”).  The history of this matter, including the full factual background to the matter, insofar as it relates to Mr Neal and the actions of Burswood, and to the previous proceedings and conferences, appear in detail in those reasons for decision.

6          He had been employed as a croupier/dealer, but became unfit to perform the duties of a croupier/dealer because of an injury for which he received workers compensation.  There was a likelihood that he might be dismissed.

7          As a result, the respondent organisation, the Australian Liquor, Hospitality and Miscellaneous Workers’ Union, Western Australian Branch, made application in matter No CR 101 of 2003, filed in this Commission on 26 May 2003 (see pages 6-7 (AB)), for a compulsory conference in the Commission pursuant to s44 of the Act.  The main issue in the matter was the threat of Mr Neal’s dismissal.  There were a number of conferences held in the Commission involving the parties and the Commissioner at first instance issued a decision in the form of an order (see pages 18-19 (AB)) dated 4 August 2003 (hereinafter called “the first order”), the order appealed against and quashed in Burswood Resort (Management) Ltd v ALHMWU (FB) (op cit).  By that order, the Commissioner, purporting to act pursuant to s44(6) of the Act, ordered as follows:-

“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.”

8          Burswood appealed against that order, as I have said.  That order was quashed by the Full Bench by order dated 15 September 2003, the appeal having been upheld.  The reasons for decision of the Full Bench for so finding issued on 2 October 2003 (see Burswood Resort (Management) Ltd v ALHMWU (FB) (op cit)).

9          The application at first instance had been listed for hearing and determination on 18 September 2003.  The matter was then listed for a further conference by the Commissioner on 17 September 2003, after the issuing of the order of the Full Bench quashing the order of the Commissioner dated 4 August 2003 (the first order).  At the conference, Burswood sought a similar order or the same order to that appealed against in the first appeal (the first order).

10       For Burswood, it was then submitted to the Commissioner at first instance that the matter should be adjourned until reasons for decision were issued by the Full Bench.  The Commissioner, at the end of the conference, provided the parties with a draft of the revised schedule to the memorandum of matters for determination.

11       At the conference of 17 September 2003, which was convened urgently, the parties informed the Commissioner that Mr Neal was not being used in any work by Burswood or being paid any wages.

12       On 18 September 2003, the next day, the Commissioner made the further order (“the second order”) reproduced above, which is the subject of this appeal.  This order, it was submitted, wrongly provides again that Burswood’s offer to Mr Neal of a position of electronic gaming assistant was accepted by him and that the only matter in dispute was the terms and conditions which might apply to that position.

13       It was submitted that this was in accordance with the finding of the Full Bench in Burswood Resort (Management) v ALHMWU (FB) (op cit), paragraph 32.

14       On 18 September 2003, after a speaking to the minutes, the second order, the order appealed against in this appeal, was issued and the hearing of application No CR 101 of 2003 was adjourned.

15       On 19 September 2003, the notice of appeal, which is the appeal herein, was filed in the Commission.

16       On 22 September 2003, Burswood objected to the hearing of application No CR 101 of 2003 by the Commission as currently constituted at that time.

17       On 2 October 2003, the reasons for the decision of the Full Bench in appeal No FBA 19 of 2003 (Burswood Resort (Management) v ALHMWU (FB) (op cit)) issued.

18       On 6 October 2003, application No CR 101 of 2003 was reallocated to a differently constituted Commission, that is one constituted by another single Commissioner, and listed for hearing and determination on 23 October 2003.

19       It is now over five months since the application at first instance was made.

ISSUES AND CONCLUSIONS

20       It is necessary to consider the order constituting the decision of the Commissioner at first instance and appealed against in this matter, including the recitals which purport to contain the reasons for that decision (see pages 8-11 (AB)).

21       I propose to make a number of observations. 

22       The recitals recite the history of the matter with reference to the number of conferences held, of which there have been to date and to the knowledge of the Full Bench, seven.

23       The decision also recites as findings the facts which were not in dispute before us and already generally found as facts by the Full Bench on the first appeal, including the findings that Mr Neal was an employee of Burswood as a croupier/dealer, and that from November 2000 to December 2002 he was unable to perform his duties as a croupier/dealer due to a work related injury.  It is also the case that he is still unable to perform those duties, or at least all of the duties of a croupier/dealer.  No one has said otherwise.

24       The Commissioner at first instance also found that Burswood endeavoured to place Mr Neal into suitable employment, the Full Bench having previously found that he was prevented from continuing as a croupier/dealer because of his injury.

25       The Commissioner went on to find as a fact, as the recital to the second order also expresses, that Burswood, by letter dated 23 June 2003, offered a position as an electronic gaming assistant to Mr Neal, which he accepted.  That finding, as Mr Blyth correctly submitted, was in error, and was contrary to the finding of the Full Bench in the first appeal.  We were not taken to any evidence that anything different had occurred since the Full Bench’s reasons for decision issued in the first appeal, appeal No FBA 19 of 2003, to justify that finding by the Commissioner.  The finding was, therefore, clearly erroneous and could not and cannot be relied upon, the contrary having been found in the first appeal (see Burswood Resort (Management) v ALHMWU (FB) (op cit), paragraph 32).

26       The Commissioner was correct in finding (see paragraph (b), page 9 (AB)) that the terms and conditions of employment being offered to Mr Neal in relation to the electronic gaming assistant position, a new position, were in dispute and not accepted.  The fact that those conditions were in dispute between the parties meant that the offer of that position had clearly not been accepted, and, in any event, as the Full Bench found on the first appeal, the offer was not accepted before 24 June 2003 by which time it had lapsed because it expressly remained open only to that date.

27       Further, as the Commissioner currently found, (see paragraph (c), page 9 (AB)), and as the evidence of the finding in paragraph (b) provides, that on 31 July 2003, the respondent organisation was advised by Burswood that if Mr Neal did not accept that position which had been created for him on the terms and conditions offered, then his services would be terminated.  However, there, was in addition, as was correctly found by the Commissioner at first instance, an undertaking given by Burswood on that date that Mr Neal would not be dismissed without seven days notice having first been given by Burswood of that dismissal.  It was not submitted that that is not still the case.  Indeed, it is fair to say that the main complaint from the beginning of this matter by the respondent organisation, and what it has sought to prevent occurring, was the dismissal of Mr Neal.  That still, one infers, remains the case, and no one has denied that it is the case.

28       There remains a dispute, too, about the arrears of wages alleged not to have been paid to Mr Neal.  The Commissioner at first instance correctly held so (paragraph (d), page 9 (AB)).

29       The Commissioner then went on to recite what had been expressed in the first order and the fact and result of the first appeal (see pages 9-10 (AB)), and the fact of further conferences on 3 and 5 September 2003 having occurred.

30       On 17 September 2003, as the order recites, and which was not denied, the Commissioner was informed that Mr Neal was not undertaking work related duties, and was therefore not being paid wages.  The Commissioner also referred to the application for an adjournment of the hearing because the Full Bench’s reasons in Burswood Resort (Management) v ALHMWU (FB) (op cit) had not yet issued.  The Commissioner then recited that she had reached the opinion that an interim order was necessary “to deal with Mr Neal’s current employment status pending the hearing and determination of the issues in dispute”.  She also recited that she had formed the opinion that the date for the hearing and determination of the “issues in dispute” should be vacated, “as a result of further discussions of the issues in dispute”, but that the hearing should be reconvened as a matter of urgency.  There is no further reference to any discussions of matters in dispute, nor to the result of any such discussions if they occurred.

31       The order goes on to say that the Commissioner had formed the opinion that the orders referred to afterwards should be made, in the opinion of the Commissioner.  The reasons are expressed as follows:-

“… that in order for arbitration to occur to resolve the matters in dispute, and pursuant to the powers conferred on it under the Act, in particular s.44(6)(ba)(ii), hereby orders …”

32       That, of course was in addition to the reason already expressed and referred to above as a basis for an interim order, namely that it was necessary to deal with Mr Neal’s current employment status pending the hearing and determination of the issues in dispute.  Those reasons then purported to found the making of the orders which were made (see pages 10-11 (AB) as expressed above).

33       In particular, there was an order on an interim basis that Burswood continue to employ Mr Neal on a full-time basis under his existing terms and conditions of employment undertaking meaningful and appropriate duties which “may include TAB duties and assisting with electronic gaming functions pending the outcome of arbitration in relation to this matter”.  The order goes on to prescribe that Mr Neal shall “remain undertaking these duties until the Commission hears and determines the issues in dispute relating to the following”.

34       The order then identifies the issues in dispute which are said to relate to:-

“If the Electronic Gaming Assistant position offered to Mr Neal and accepted by him remains available and is to be performed by Mr Neal, the terms and conditions of employment that should apply to the duties of this position”.

35       It is quite clear that that position offered was not accepted by Mr Neal, as I have observed above, and as the Full Bench found in the first appeal (see Burswood Resort (Management) v ALHMWU (FB) (op cit), paragraph 32).  Paragraph 2(a) of the order is therefore incorrect and erroneous.

36       Whether a question arises as to whether Mr Neal should be redeployed to that or some other position or not and/or what terms and conditions should apply to any such position is, of course, another matter, and, in my opinion, is a question which properly arises and properly describes the dispute in this matter.  That is why that error is not fatal to the order.

37       The second question, whether Mr Neal is owed wages, clearly arises and is properly expressed as a matter to be resolved, as are the references to the issues referred to in orders 3, 4 and 5 which were not challenged upon this appeal.

38       I now deal with the grounds of appeal.

Ground 1

39       By this ground, Burswood attacks the decision on the basis that the order of 18 September 2003 has the same effect as the order of 4 August 2003, which was quashed by the Full Bench.

40       The attack on the decision is based on a number of propositions.  The first is that the first order obliged Burswood to redeploy Mr Neal forthwith to the position of electronic gaming assistant.

41       It was submitted that Mr Neal is employed as a croupier/dealer but is not fit to fully perform that work which is a matter not in dispute.  That, of course, is the case and has been since he was injured.  There is, it is said, no such position as an electronic gaming assistant in Burswood’s business.

42       It is also submitted that, on an interim basis, the order requires that Burswood should continue to employ Mr Neal on a full-time basis under his existing terms and conditions of employment, undertaking meaningful and appropriate duties which may include TAB duties and assisting with electronic gaming functions, pending the outcome of arbitration in this matter.  It is also submitted that “TAB duties and assisting with electronic gaming functions” are the same duties as those previously identified for the proposed electronic gaming assistant position.

43       For the respondent, it was submitted that the order appealed against is not an order having the same effect as the first order.

44       Next, it was submitted that the second order was not the same, in particular, because it does not allocate TAB duties or duties assisting with electronic gaming functions to Mr Neal.

45       Next, it was submitted that this ground was alleged in the earlier appeal and not upheld; further, that the Full Bench cannot deal with the matter without hearing evidence.

46       Next, it was submitted that even if the two orders do have the same effect, then there is no error where the Commission has power to make interim orders.

47       In short, this ground, it was submitted, identifies no error.

48       It should be observed, and I am satisfied, that on a fair reading, the first order, inter alia, ordered the redeployment of Mr Neal forthwith to the full-time position of electronic gaming assistant under the terms and conditions as detailed in the correspondence from Ms Kathleen Drimatis on behalf of Burswood to the respondent dated 23 June 2003.

49       This second order is different.  It is clearly an order on an interim basis that Burswood continue to employ Mr Neal on a full-time basis under his existing terms and conditions of employment.  Next, and as well, it requires that he undertake meaningful and appropriate duties which may include TAB duties and assisting with electronic gaming functions until arbitration in the matter is completed.

50       Accordingly, that part of the order is not the same at all, in effect.  It does not require Mr Neal to be redeployed to the position of electronic gaming assistant or to perform the same duties (or if it does it has not been so established), but merely requires him to occupy, in effect, his current position and to perform duties which may include some duties which are part of the proposed position of electronic gaming assistant.  It is noteworthy that even Burswood in its grounds of appeal, (ground 1(a)), only alleges that Mr Neal is not fully fit to perform his duties.

51       It matters not that there is no current electronic gaming assistant position.  That is not the position which Mr Neal is ordered to fill by the second order.  The duties are not the same. 

52       The order does not require Mr Neal to be redeployed to the position of electronic gaming assistant, but to a position on his existing terms and conditions of employment which requires him to perform meaningful duties and to be paid and which deals with the undisputed fact that he was not being paid.  When the order was made there was no evidence either that he would be paid.  It will be quite clear, too, from my consideration of the terms of the second order that, whilst similar to the first order which was quashed, it has not the same effect and is not defective, for that reason. 

53       For the reasons which I have expressed above, it was erroneous to use as a basis for the orders the erroneous finding that the position of croupier/dealer had been accepted by or on behalf of Mr Neal, but that is not fatal to the orders.  There is adequate basis in the recitals for the orders made.  However, the more general issue of dispute about his remaining in employment and any redeployment of him could and should have been expressed as an issue to be determined upon arbitration, although s26(2) might permit it to be determined if necessary. 

54       It is not a redeployment to the position of electronic gaming assistant which is contemplated by the first order, on a fair reading.  In any event, I have not heard anything upon this appeal or on the first appeal which would persuade me that such an order for redeployment would not be competent whether the position currently exists or has to be created for Mr Neal, on a temporary or permanent basis.

55       In any event, the Commission is empowered by virtue of s44(6)(bb) of the Act with respect to industrial matters to, inter alia, give any direction or make any order or declaration which the Commission is otherwise authorised to give or make under the Act, which in my opinion, includes an interim order which the Commission considers appropriate in the circumstances pending the resolution of the claim.

56       Order 2 is, however, misconceived in that it clearly repeats an error found to exist in the earlier order in that it purports to leave open the question whether the position of electronic gaming assistant offered to him was accepted by Mr Neal when the Full Bench found that it was not so accepted.  Accordingly, for those reasons, in my opinion, ground 1 would, but for what I say hereinafter, be made out to that limited extent.  However, that has no effect on the validity or correctness of the orders made, and therefore cannot be made out as a ground of appeal.  In any event, and cogently, the order in that respect is simply not challenged on appeal in ground 1 or elsewhere.  Ground 1 is not made out.

Ground 2 – Is the Order Beyond Power?

57       The complaint in this ground was that the order which was made was made beyond power because the order was made pursuant to s44(6)(ba)(ii) of the Act without making a finding that the order enabled arbitration or conciliation of the matter in question.  It was submitted for Burswood that the recital to the second order records that the Commissioner at first instance formed an opinion that an interim order was necessary to deal with Mr Neal’s employment status pending the hearing and determination of the matters in dispute.

58       It was also submitted that the order does not affect Mr Neal’s employment status because Mr Neal remains as a full-time croupier but is unfit to perform that work.

59       That was slightly different from the earlier submission in the matter that he was not fully unfit to perform that work, or all of it.  This order, it was submitted, too, interferes with the status quo established by the Full Bench in the first appeal.

60       The making of the order does not advance the matters in dispute and those matters can be arbitrated without the second order, so the submission went.  The order in short, it was submitted, does not enable conciliation and arbitration.  For the respondent, it was submitted that Burswood seeks to deprive a full-time employee of wages whilst the dispute squarely concerning that employee’s wages is determined.  Thus, the order clearly affects Mr Neal’s employment.  In making the order, so the submission went, Mr Neal was not currently undertaking work related duties and therefore not receiving wages, so that a further adjournment of the matter was necessary at the request of Burswood.  Thus, an interim order was necessary to deal with Mr Neal’s current employment status, and interim orders were also required to be made in order for arbitration to occur to resolve the matters in dispute.

61       It was submitted that it was clear from the terms of the order, including the recital, that the order made was necessary to enable arbitration of the matters in question, and it was therefore made within power.  It was also submitted that this order was distinguishable from the first order, and therefore the criticism of the first order by the Full Bench, in paragraph 5 of its reasons, to the effect that:-

(a)          The first orders were not expressed to prevent the deterioration of industrial relations

(b)          Those orders were not expressed to enable conciliation or arbitration

(c)          The orders purported to finally resolve the matter -

did not apply.

62       This order can be distinguished, it was submitted, because it was clearly an interim order for a limited purpose.  Accordingly, it was submitted, ground 2(d) and (e), arguing that the order does not advance the matters in dispute, that the matters can be arbitrated without the order and that there was no evidence to support a finding that the order would enable arbitration to resolve the matters in dispute, were without merit.  That submission went further.  It was the submission too, that Mr Neal’s employment should continue whilst the matter is determined and that the fact that he is being employed without being provided work and/or paid wages, makes his employment meaningless.  For this reason, ground 2(d) and (e) are not made out, it was submitted.

63       There has also, it has been submitted, been a delay of five months with this matter which means Mr Neal has not been paid for five months and that is a clear deterioration in industrial relations.

64       Burswood’s reference to the status quo, it was submitted, has no merit therefore.  In my opinion, the reasons for making the order were not confined to s44(6)(ba)(ii) of the Act.  The Commissioner at first instance expressed itself in this way (see page 10 (AB)):-

“NOW THEREFORE, the Commission having formed the view that in order for arbitration to occur to resolve the matters in dispute, and pursuant to the powers conferred on it under the Act, in particular s.44(6)(ba)(ii), hereby orders:”

65       As I have said above, the reasons for making the order were clearly expressed.  They were clearly expressed to be for the purposes of enabling arbitration to occur and to deal with the question of Mr Neal’s employment.  After all, the real jeopardy to his continued employment and the fact that he was not being paid are central matters in this dispute.  The order is within power pursuant to s44(6)(ba)(ii) of the Act, for that reason.

66       Translated in terms of s44 of the Act, the Commissioner at first instance did not limit her opinion of the necessity for the order to the powers conferred by s44(6)(ba)(ii).  She based her opinion on the whole of s44.  The power conferred by s44(6)(ba) was considered by the Full Bench in Burswood Resort (Management) v ALHMWU (FB) (op cit) at pages 3317-3318 in a unanimous decision, and the cases cited therein also apply.

67       First, even though she did not express it, and, for the sake of prudence she should have, the power was plainly used for the purpose of preventing the deterioration of industrial relations.  I say that because not only was there the on-going threat of dismissal of Mr Neal, but there were the allegations of failure to pay him and allegations that he was no longer employed with the matter having at that stage dragged on for five months.

68       The inference available from those reasons, which were expressed, having regard to the invocation and the powers available generally under s44, is quite clear, and I deal with it in a moment.

69       S44(6)(bb)(i) of the Act was invoked by implication.  In any event, s44(6)(bb) provides that the Commission may “with respect to industrial matters”:-

“(i) give any direction or make any order or declaration which the Commission is otherwise authorised to give or make under this Act;”

70       In other words, s44(6)(bb) does not confer a narrow power which merely enables the making of procedural orders.  In particular, s44(6)(ba)(ii) of the Act, which confers the power to make orders pending arbitration does not either.  To so interpret s44(6)(ba)(ii) would be inconsonant with the Act read as a whole, and, in particular, s6(ag), (b) and (c) of the Act.  In other words, the power conferred by s44(6)(ba)(ii) to make orders which will, in the opinion of the Commission, enable conciliation or arbitration to resolve the matter in question, is not confined to mere procedural orders, but to orders which are capable, for example, of preserving the status quo.  Further, s44(6)(bb) enables the making of orders to preserve the status quo (see SSTUWA v Honourable Minister for Education (1990) 70 WAIG 21 at 27 per Sharkey P, Salmon and Kennedy CC).

71       Next, of course, by having recourse to the whole of the section, and having regard to the first reason expressed for making the order, namely to deal with Mr Neal’s current employment status pending the hearing and determination of the matters in dispute, the Commissioner, inter alia, and by implication, also invoked s44(6)(bb)(i), which provides as I have expressed it above that the Commission has power, inter alia, to give any direction or make any order or declaration which the Commission is otherwise authorised to give or make under the Act.  That confers a power unlimited, except by the four corners of the Act and enables the Commission at or in relation to any conference under s44 to make such wide orders.  Quite clearly, the orders made were within that power ((ie) they purported to deal with the questions of employment which were required to be dealt with there and then as matters of equity, good conscience and the substantial merits of the case) (see s26(1)(a) of the Act).

72       It is to be noted, too, that this wide power has its genesis in s44(6) which empowers the Commission to make s44(6)(a), (b), (ba) and (bb) orders without limiting its power to “make such suggestions and give such directions as it considers appropriate”.  Given the context of s44(6) and its reference to orders, the word “directions” in the second line of s44(6) should be read to include “orders”, reading s44(6) as a whole.  Cogently, too, the second orders are different from the first because they are short term and “interim” only.

73       For all of those reasons, the exercise of the power, although based upon a factual error which ought to be corrected, was entirely competent and was entirely competent, notwithstanding the factual error, namely the finding that the position of electronic gaming assistant had been offered and accepted when it had not.  Ground 2 is not made out.

Ground 4

74       It is submitted that the Commissioner at first instance erred in law in failing to provide reasons for decision as required by s35 of the Act.  The submission was that s35 imposes a mandatory duty to provide reasons for decision and that such a duty applies to an order made under s44 of the Act (see AMWSU and Others v RRIA (1989) 69 WAIG 990).

75       The recitals may satisfy that obligation providing that they enable a court on review to consider whether or a not an error of law has been made.

76       A substantial failure to state reasons for decision constitutes an error of law (see Ruane v Woodside Offshore Petroleum Pty Ltd (1990) 71 WAIG 913 (FB)).

77       It was submitted that, if the reasons for decision are the words contained in the preamble to the order, they are so manifestly inadequate as to constitute a failure by the Commission to properly exercise the Commission’s jurisdiction.  For the respondent, it was submitted that the reasons are contained in the recitals and that they adequately explain why the order was made in principle.  The Commissioner set out the relevant law and the facts in considerable detail as well as the reasoning and the processes of reasoning.

78       Thus, it was submitted, it is clear from the reasoning of the Commissioner and on a fair reading that the reasons for the orders were as follows:-

a)             To deal with Mr Neal’s current employment status in the interim.

b)             To permit a further adjournment of the hearing.

c)             To enable arbitration to occur to resolve the matters in dispute.

And for the reasons otherwise expressed above.

79       The reasoning process in this matter, too, it was submitted, is vastly different from the reasoning in the first order.  Therefore, it was submitted, adequate reasons were given. 

80       In my opinion, the recital states clearly and sufficiently the reasoning process for the making of the order, and that will be clear from my analysis of the reasons for the making of the orders expressed as recitals to the order and the exercise of the power generally, above.  That ground is not made out.

Ground 5

81       There is no allegation in ground 5 which can be at all dealt with.  It contains no allegation of error.  The ground is embarrassing and should be struck out.

Public Interest

82       Ground 6 is the ground by which it is alleged that the appeal raises matters which are of such importance that in the public interest an appeal should lie.  By s49(2a) of the Act an appeal against a finding, as defined, cannot lie unless the Full Bench forms that opinion.

83       The submissions in support of that ground are as follows.

84       The second order is an order which is in substance the same as the first which was found to be defective.  Thus, implicitly, as I understand that argument, it follows that similar errors should, as a matter of principle, be corrected.

85       The question of the Commission’s power to require an employer to create a position that meets the abilities of an employee was directly raised in the first appeal and the Full Bench had determined that its reasons for decision would issue at a future date, it was submitted.

86       It was also submitted that the second order is beyond power in that it is not connected to enabling conciliation or arbitration of the matters in question and therefore was made without power.  I have already answered that above.  Further, it was submitted that the Commissioner at first instance failed to comply with the requirements of s35 of the Act to give reasons or adequate reasons for the decision.  I have already answered that above.  For the respondent, it was submitted, too, that there was no question of such importance that in the public interest the appeal should lie (see RRIA v AMWSU and Others (1989) 69 WAIG 1873 at 1878-1879 (FB)).

87       It was submitted that the point in ground 6(b) had been decided in the first appeal, and that to permit an appeal further on that same point was contrary to public interest; nor, so the submission went, is it in the public interest that an appeal should lie against the interim order made on these facts.

88       It was also submitted that there is nothing in the legislation which prevents the Commission from taking any further interim action until the Full Bench’s reasons for decision issued.  The factual circumstances before the Commissioner had changed.  In particular, there was no public interest either in grounds 6(c) or (d).

89       It should be remembered that pursuant s49(2a) of the Act an appeal lies, only if in the opinion of the Full Bench, the matter is of such importance that the appeal should lie.

90       The opinion therefore required to be formed is an opinion that the matter is of sufficient importance that in the public interest the appeal should lie.  It cannot be of public interest if the matter is of no or insufficient importance.  In this case, first, there was insufficient merit in the appeal.  Second, even if the Commission acts beyond power in making interim orders purporting to lie under s44 of the Act, the alleged error being an error that does not affect the final disposition of the matter but in fact delays it, may for that latter reason render the appeal of insufficient importance, having particular regard to s6(c) and s26(1)(c) and (d) of the Act.  Further, I do not agree that a mere allegation that the Commission is acting beyond power under s44(6) is at all evidence that the matter is of such importance that in the public interest an appeal should lie in the opinion of the Full Bench.

91       The question of importance may not be such that it should be allowed to prevent the prompt disposition of the matter.  In this case, the question which arises for determination is not new.  In any event, the importance of the matter is not confined to the actual question which arises on appeal.  Importance may be determined by reference to other factors such as s6(c), s26(1)(c), s26(1)(d) and s26(1)(a) of the Act.

92       Importance is not restricted to the question of law before the Commission or the question of power exercised.  To say otherwise would be to interpret s49(2a) of the Act in a restrictive manner and not at all as I read it to be intended to be expressed and operate.  Indeed, s49(2a), inter alia, in my opinion, exists to prevent premature and unnecessary appeals which might inhibit or delay the resolution of disputes by conciliation and/or arbitration.  In this case, the public interest duly requires that a dispute which has been protracted for five months should be resolved.  Then, if there are remedies available upon appeal on the substance of the matter then the matter can be resolved as a whole.  The importance in this matter lies not in this appeal, but in the need to have it determined on the merits as soon as possible.  Indeed, s26(1)(c) and (d) of the Act require it and s6 of the Act, in the relevant parts to which I have referred above, points a signpost to that occurring.

93       I would also add what a unanimous Full Bench said in RRIA v AMWSU and Others (FB) (op cit) at pages 1878-1879, which in its general import supports the view which I take:-

“Firstly, let us observe that section 32 and section 44 powers have been extensively explored by the Full Bench and the Industrial Appeal Court in recent times, and, in particularly, in relation to application A4 of 1987 (see for example a number of the authorities to which we were referred and those referred to herein).

The importance of this appeal in the public interest is therefore slight in the context of the delineation and definition of powers under those sanctions (sic), because of the substantial consideration by the Full Bench, and more particularly, the Industrial Appeal Court of section 32 and section 44 and the powers thereunder.

              Further, as far as importance alone is concerned, because of those decisions, all of which were cited to us, the importance of this appeal is not great.  This is merely another of at least three appeals relating to orders made along the path, or on parallel paths, to the determination of A4 of 1987.  It is fair, indeed, to say that it is more, in the public interest, that findings related to A4 of 1987 matters not be appealed against unless there is clear importance as matters of principle, or otherwise, attachable to them.”

94       Further, this appeal has resulted in this matter being delayed in the final disposition when it has already been inordinately delayed, and indeed has been listed twice for arbitration, without that proceeding.  It is not in the interests of the community, s26(1)(d), or the parties (see s26(1)(c)), that this matter is further delayed.  In any event, if there were an error and it still required to be corrected, then it could be corrected on any appeal brought at the end of the matter without the barrier of s49(2a), against the final decision.

95       In this matter, also, I would add further, for the reasons which I have expressed, that the appeal lacks merit and that is another reason why the appeal should not lie.

96       For those reasons, I did not form the requisite opinion that in the public interest an appeal should lie.  I hold that the appeal should not lie.  I would dismiss the appeal for that reason alone.

Finally

97       The appeal should not lie within the meaning of s49(2a) of the Act.  The appeal should be dismissed, even if that finding were wrong.

98       For all of those reasons, I would dismiss the appeal.

COMMISSIONER P E SCOTT:

99       I have had the benefit of reading the Reasons for Decision of His Honour, the President which set out the background to this matter and the grounds of appeal.

Ground 1

100    In respect of ground no. 1, I respectfully agree with His Honour that this ground is not made out.  I note that the second order i.e. the order of 18 September 2003 does not suffer from the same deficiencies as the first order, the order of 4 August 2003.  Order no. 2(a) of the second order contains an error for the reasons noted by His Honour but that error is of no real effect in the circumstances.  I would dismiss ground no. 1.

Ground 2

101    As to the second ground of appeal, the recitals to the second order set out the background to the matter, and the Commissioner’s decision.  One particular recital and the preamble to the orders set out the reasons therefore as:

“AND WHEREAS the Commission is of the opinion that an interim order is necessary to deal with Mr Neal’s current employment status pending the hearing and determination of the issues in dispute and that the hearing set down for 18 September 2003 be vacated as a result of further discussions of the issues in dispute and that the hearing should be re-convened as a matter of urgency;

…

NOW THEREFORE, the Commission having formed the view that in order for arbitration to occur to resolve the matters in dispute, and pursuant to the powers conferred on it under the Act, in particular s.44(6)(ba)(ii), hereby orders:

1. THAT on an interim basis the respondent continue to employ Mr Kieran Neal on a full-time basis under his existing terms and conditions of employment undertaking meaningful and appropriate duties which may include TAB duties and assisting with electronic gaming functions pending the outcome of arbitration in relation to this matter. 

2. THAT Mr Neal shall remain undertaking these duties until the Commission hears and determines the issues in dispute relating to the following:

a) If the Electronic Gaming Assistant position offered to Mr Neal and accepted by him remains available and is to be performed by Mr Neal, the terms and conditions of employment that should apply to the duties of this position.

b) 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.

3) The terms and conditions in Clause 17. – Meal and Rest Breaks of the Burswood International Resort Casino Employees Award 2002 No A4 of 2003 applicable to a Croupier/Dealer shall not apply to Mr Neal whilst performing duties other than those of a Croupier/Dealer.

4) Nothing in this order prevents the respondent from dismissing Mr Neal for misconduct.

5) A liberty to apply is reserved to the parties in the event of changed circumstances.”

102    Order no. 1 is the substance of the order, and order no. 2 sets out the matter to be heard and determined.  Therefore, at 18 September 2003, the matter in dispute involved whether or not Mr Neal was owed wages for the hours he had been fit to work but had not been offered work by the respondent, and the terms and conditions to apply to the work to which he was to be allocated.  The orders deal with the employment of Mr Neal on an interim basis pending the hearing and determination of the matters in dispute between the parties and an identification of those issues.  As His Honour has noted order no. 2(a) is incorrect but of no consequence.  Order 2(b) constitutes the significant aspect of the dispute between the parties, as to 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.  Order no. 1 requires the respondent to actually provide work to Mr Neal not merely to offer him employment.

103    The Commissioner has clearly identified that the power which has been utilised, in particular, is s.44(6)(ba)(ii).  That section of the Act provides that:

“(6) The Commission may, at or in relation to a conference under this section, make such suggestions and give such directions as it considers appropriate and, without limiting the generality of the foregoing may –

…

(ba) with respect to industrial matters, give such directions and make such orders as will in the opinion of the Commission — 

(i) … ;

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

(iii) … ”

104    While the first part of subsection (6) of s.44 gives the Commission power to make suggestions and give such directions as it considers appropriate, and without limiting the generality of such directions, paragraph (ba)(ii) specifically provides for the Commission to give such directions and make such orders as will in the opinion of the Commission enable conciliation or arbitration to resolve the matter in question.  In this matter, the Commissioner has identified that in particular s.44(6)(ba)(ii) has been utilised.  The key is whether the order will enable arbitration to resolve the dispute.  Enable is defined as:

“enable  verb (t)  1. to make able; give power, means or ability to; make competent; authorise: this will enable him to do it.  2. to make possible or easy.  Macquarie Dictionary, 3rd ed, 2001, The Macquarie University Library Pty Ltd, Sydney, p.699

enable  v  1. to invest with legal status.  2.  to empower; to give legal power or licence.  3. to make able (to be or to do something); to strengthen; to supply with means, opportunities or the like.  4. to make possible; also to make effective.  The Shorter Oxford University Dictionary, 3rd ed, 1973, Oxford University Press, London, Vol 1, p.651.”

105    An examination of the orders issued does not identify how those orders will enable arbitration to resolve the matter in question.  The orders seem not to be necessary to enable arbitration.  They deal with the merits of the situation and do nothing to make able or provide the means or the ability, or to make competent or authorise arbitration.  They do not invest arbitration with legal status nor give legal power or licence in that regard, strengthen or supply with means, opportunity or the like or make arbitration possible or effective.  What they do is resolve to some extent, on an interim basis, part of the dispute by requiring the respondent to employ Mr Neal on particular work and thus pay him.  I say this on the basis that part of the dispute between the parties includes whether or not he is owed wages for hours that he has been fit to work but not been offered work by the respondent.  In that regard it deals with the merits of the situation but does not enable, in this case, arbitration of the matters in dispute.  Arbitration can resolve the matter without such an order.  Nothing within the order assists in arbitration resolving the matter in dispute.  As the recitals and the order indicate that the Commissioner had formed the view that interim orders were necessary to enable arbitration, where those orders do not so enable arbitration, they are without power.

106    One further aspect of the appellant’s case is that there was no real jeopardy to Mr Neal’s employment.  As His Honour notes and as the recitals record, the appellant had given an undertaking to not terminate Mr Neal’s employment without 7 days notice.  There was no indication that that situation had changed.  Accordingly, there was no immediate jeopardy to Mr Neal’s employment at the time the order was made such as to warrant the orders at that time.  One might imagine that had the respondent given notice of an intention to terminate Mr Neal’s employment then some order might have been considered.  Rather than simply prevent the termination of employment, the orders require the provision of particular work.

107    I note that s.44(6) also provides in paragraph (ba)(i) that an order can be made or direction given where the Commission is of the opinion that it will “prevent the deterioration of industrial relations in respect of the matter in question until conciliation or arbitration has resolved that matter”.  Whether there was deterioration in industrial relations or whether an order was necessary to prevent such deterioration is not a matter addressed by the Commissioner at first instance.  The Commissioner relied on the power in 44(6)(ba)(ii).  The Commissioner did not say that the order was issued to prevent the deterioration of industrial relations and accordingly it is not appropriate to assume what power she intended to use in the absence of her express intention, and where a different intention is specifically referred to. 

108    I would uphold ground no. 2.

Ground 4

109    Ground no. 4 argues that the Commissioner erred by failing to give reasons for decision as required by s.35.  The context in which an order is issued from a conference convened pursuant to s.44 is relevant in considering whether, and to what extent, reasons are given.  That context is that conferences are relatively informal, interim orders are usually necessary at short notice, and, accordingly, there is little time, or perhaps necessity, for lengthy and detailed reasons.  The recitals to the order provide an opportunity for the Commission to meet the obligation to provide reasons, albeit brief ones.   Those recitals should still convey the reasons why the order is issued, not merely that a decision has been made to issue the order.

110    As noted, the Commissioner had reached the conclusion which she identified i.e. that an interim order was necessary to deal with Mr Neal’s current employment status pending hearing and determination, and in order for arbitration to occur to resolve the dispute.  However, she does not indicate why she reached those conclusions. 

111    I think it can be fairly said that the recitals in this case enable the reader to discern that the Commissioner believed that as Mr Neal was no longer undertaking duties and therefore not receiving wages that it was appropriate to require the respondent to provide him with work, and thus he would be entitled to payment, pending hearing and determination of the matter.  I am unable to discern though how that justified the use of s.44(b)(ba)(ii), i.e. to enable arbitration. In this context while the recitals enable a conclusion that reasons have been given, those reasons do not correlate with the power utilised.  I would uphold this ground of appeal on the basis that the reasons given are inadequate to explain the reasons for the orders made. 

Ground 5

112   I agree with His Honour the President as to this ground.

Ground 6 – Public Interest

113   As to the issue of public interest, it is a matter of importance that orders of the Commission are issued within power and that reasons for decision in respect of those orders identify the justification for those orders.  It seems that the appeal itself may have little practical effect given that the prospect is that the dispute will be determined in the near future if it has not already been determined.  However, it is still a matter of significance that the Commission should not be seen to and should not issue orders beyond power.  The Commission should not be able to issue orders beyond power without the prospect of those orders being subject to appeal merely because they are interim.  I would find that the matter is of sufficient public interest that an appeal should lie.

COMMISSIONER J H SMITH:

114   The grounds of appeal and the full text of the orders made by the Commission on 4 August 2003 ("first order") and 15 September 2003 ("second order") are set out in the President's reasons for decision.

115   Having considered the appellant's grounds of appeal and the submissions made on behalf of both parties I am of the view that the appeal should be dismissed.

Ground 1

116   In Ground 1, the appellant argues that the Commissioner erred in law in making the second order as the second order has the same effect as the first order which was quashed on appeal by the Full Bench on 15 September 2003. 

117   The relevant part of the first order was expressed to have been made under s 44(6)(ba)(ii) of the Industrial Relations Act 1979 ("the Act") as follows:

"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."

118   The second order is also expressed to have been made under s 44(6)(ba)(ii) of the Act as follows:

"1. THAT on an interim basis the respondent continue to employ Mr Kieran Neal on a full-time basis under his existing terms and conditions of employment undertaking meaningful and appropriate duties which may include TAB duties and assisting with electronic gaming functions pending the outcome of arbitration in relation to this matter." 

119   Section 44(6)(ba) provides:

"(6) The Commission may, at or in relation to a conference under this section, make such suggestions and give such directions as it considers appropriate and, without limiting the generality of the foregoing may — 

(ba) with respect to industrial matters, give such directions and make such orders as will in the opinion of the Commission — 

(i) prevent the deterioration of industrial relations in respect of the matter in question until conciliation or arbitration has resolved that matter;

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

(iii)       encourage the parties to exchange or divulge attitudes or information which in the opinion of the Commission would assist in the resolution of the matter in question;"

120   The Full Bench decision in Burswood Resort (Management) Ltd v Australian Liquor, Hospitality and Miscellaneous Workers' Union, Western Australian Branch (2003) 83 WAIG 3314 ("the first Full Bench decision") in unanimous reasons held the first order was without power and was invalid because there was 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 to and within the prescription of s 44(6)(ba).

121   In particular the Full Bench found:

(a) there was no declaration or assertion or expression that the orders were made for the purposes set out in s 44(6)(ba)(i) or (ii);

(b) the first order was not temporary or interim but purported to finally determine a matter not agreed, 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.

122   Following a number of conferences the issues in dispute were defined in paragraph 2. of the second order in the following terms as relating to the following:

"a) If the Electronic Gaming Assistant position offered to Mr Neal and accepted by him remains available and is to be performed by Mr Neal, the terms and conditions of employment that should apply to the duties of this position.

b)     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."

123   The appellant says that Mr Neal did not accept the position and that such a finding is contrary to findings made by the first Full Bench decision.  Whilst this was a submission made on behalf of the appellant a challenge to that finding is not raised in the grounds of appeal.  This submission was made by the appellant in the course of setting out the background to the appeal and in support of a submission that the Commissioner erred in setting down for hearing "the issues in dispute relating to the following: a) If the Electronic Gaming Assistant position offered to Mr Neal and accepted by him remains available" in paragraph 2. of the second order (see paragraph 14. of the appellant's submissions and page 13 of the transcript).  This submission in my view raises a different issue to matters raised in Ground 1 of the appeal.   In any event the use of the words "accepted by him" by the Commissioner in paragraph 2. of the second order do not appear to be used in the context of a conclusive opinion that a formal acceptance of the appellant's/respondent's offer was effective at law so as to form a binding contract because the Commissioner in paragraphs b) and c) of the fourth "AND WHEREAS" in the preamble of the second order found:

"AND WHEREAS at the conferences held on 10 June 2003, 16 July 2003 and 31 July 2003 the Commission was informed that:

b) On 23 June 2003 the respondent offered Mr Neal a position of Electronic Gaming Assistant and Mr Neal accepted this position however, the applicant and the respondent were in dispute about the terms and conditions of employment being offered to Mr Neal in relation to this position.

c) On 31 July 2003 the applicant was advised by the respondent that if Mr Neal did not accept the Electronic Gaming Assistant position which had been created by the respondent and offered to Mr Neal on the respondent's terms and conditions then his services would be terminated and that the respondent would not take such action without giving seven days notice of its intention to terminate Mr Neal."

124   The conclusion that one can only reach when paragraphs b) and c) are read is that there was no acceptance at law of the respondent's offer.

125   The terms of paragraph 1. of the second order is clearly a temporary or interim order and is not an order to redeploy Mr Neal to the position of Electronic Gaming Assistant.  The nature of an order to "redeploy" often carries with it not only a change in employment duties but also a change in conditions of employment, such as changes in title and wages or salary.  The terms of the second order are different.  But for the terms of the first order (which was quashed) at all material times Mr Neal was employed as a croupier/dealer.  The terms of paragraph 1. of the second order are clear:

(a) Mr Neal is to be provided with duties other than croupier/dealer, the type of duties are restricted only by the qualification that they are meaningful and appropriate but may include TAB duties and assisting with electronic gaming functions.

(b) Except for the application of Clause 17 – Meal and Rest Breaks of the Burswood International Resort Casino Award 2002 Mr Neal is to be paid and is entitled to the same conditions of employment as if he is only provided with full-time croupier/dealer work.

(c) The order is temporary or interim in nature and will cease to have effect once arbitration of the issues in dispute is complete.

(d) The second order is expressed to be pursuant to s 44(6)(ba)(ii) and that the Commission had formed the view that the order should be made in order for arbitration to occur.

126   Consequently the second order is in terms different in substance and form to the terms of the first order and Ground 1 fails.

Ground 2

127   The appellant contends in Ground 2 that the Commissioner erred in law in making the second order in that she failed to make a finding that the second order enabled conciliation or arbitration of the matters in question, and therefore the order was made without power.  In support of its argument it is contended:

(a) The Commissioner erred in law by making an order pursuant to section 44(6)(ba)(ii) when the second order does not enable conciliation or arbitration and no relevant finding was made.

(b) The preamble to the second order records only that the Commissioner formed an opinion that an interim order was necessary to deal with Mr Neal's employment status pending the hearing and determination of the matters in dispute.

(c) The second order does not affect Mr Neal's employment status.  Mr Neal remains as a full-time croupier but is unfit to perform that work.

(d) The making of the second order does not advance the matters in dispute and those matters can be arbitrated without the second order.

(e) There was no evidence to support a finding nor is it apparent how the second order would enable conciliation or arbitration to resolve the matters in dispute.  The word "enable" means, "make possible": the Concise Oxford Dictionary (Seventh Edition).  The matters in dispute can be arbitrated without the second order.

128   The Schedule to the application for a s 44 conference in this matter states:

"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.

…"

129   Prior to making the second order the Commissioner stated:

"AND WHEREAS on 17 September 2003 the Commission convened an urgent conference and was informed that Mr Neal was no longer undertaking the duties of the position of electronic gaming assistant and that he was currently not undertaking work-related duties and therefore not receiving wages;

AND WHEREAS the respondent sought to adjourn the hearing in relation to the issues in dispute given that the Full Bench had not yet issued its reasons for decision in FBA 19 of 2003;

AND WHEREAS the Commission is of the opinion that an interim order is necessary to deal with Mr Neal's current employment status pending the hearing and determination of the issues in dispute and that the hearing set down for 18 September 2003 be vacated as a result of further discussions of the issues in dispute and that the hearing should be re-convened as a matter of urgency;

AND WHEREAS a Speaking to the Minutes was held on 18 September 2003 in respect to the Minutes of Proposed order that issued on 17 September 2003 and after hearing from the parties the Commission formed the view that amendments should be made to the proposed order;

NOW THEREFORE, the Commission having formed the view that in order for arbitration to occur to resolve the matters in dispute,"

130   By using the words "having formed the view that in order for arbitration to occur to resolve the matters in dispute," it is apparent from the face of the second order that the Commissioner made the second order to "enable arbitration to resolve the matter in question" within the meaning of s 44(6)(ba)(ii).  Further in my opinion she clearly reached the requisite opinion that the second order enabled arbitration to resolve the matter in question.  The terms of the second order deal only with the position of Mr Neal in the interim until arbitration is complete.  The second order records that on 17 September 2003 the Commission was informed that Mr Neal was not undertaking any work-related duties and therefore was not receiving wages.  The Union says that without work and wages Mr Neal must seek work elsewhere and to do so would bring the employment relationship to an end.  It follows therefore that without the second order Mr Neal's employment would come to an end so as to render nugatory arbitration of this issue.  For this reason ground 2 fails.

Ground 4

131   For the reasons given by the President I agree Ground 4 is not made out.  In Ground 4 the appellant contends the Commissioner erred in law by failing to give any reasons for decision as required by s 35 of the Act or alternatively that the reasons given are so manifestly inadequate as to constitute a failure to properly exercise the Commission's jurisdiction.

132   In Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union and ors (1989) 69 WAIG 990 Nicholson J, with whom Kennedy and Pidgeon JJ agreed, held at 999 that the duty to provide reasons will be satisfied if the reasons given enable a court in review to consider whether no error was made in making the order.  In particular he observed:

"The duty to give reasons must be construed in relation to the proceedings to which the reasons relate.  As has been seen, the section 44 conference procedure is one characterised by great informality.  The reasons are formulated in a setting in which, in my opinion, there is no obligation to maintain a record and in which the taking of evidence is either inappropriate or unlikely. ... They are not inadequate merely because every process of reasoning is not set out (Mountview [supra] at p. 692).  The words used are not vague general words which are insufficient to bring to the mind of the reader a clear understanding of why the order was made (c.f. Elliott [supra]).  It is sufficient that the reasons are brief (c.f. Great Portland Estates, [supra])."

133   Whilst the reasons for making the second order are very brief the Union says the following can be distilled from the reasons given by the Commissioner:

(a) that Mr Neal was again not currently undertaking work-related duties and therefore not receiving wages;

(b) that a further adjournment of the arbitration was necessary;

(c) that an interim order was necessary to deal with Mr Neal's current employment status;

(d) that interim orders should be made in order for arbitration to occur to resolve the matters in dispute.

134   I accept the Union's submission, for the reasons set out in relation to Ground 2 it is apparent from the recited reasons that on review the Full Bench is able to ascertain that the second order was within power.  Consequently the duty to provide reasons is satisfied as the Commissioner set out sufficient facts upon which to rationally base a decision and the reasoning of that decision is exposed.

Ground 5

135   I agree for the reasons given by the President that Ground 5 should be struck out.

Ground 6

136   I agree for the reasons given by the President that in the public interest the appeal should not lie.

THE PRESIDENT:

137    For those reasons the Full Bench dismissed the appeal.