WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES THE CONSTRUCTION, FORESTRY, MINING & ENERGY UNION OF WORKERS, COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING, AND ALLIED WORKERS UNION OF AUSTRALIA, ENGINEERING & ELECTRICAL DIVISION, WA BRANCH, THE AUSTRALIAN WORKERS' UNION, WEST AUSTRALIAN BRANCH, INDUSTRIAL UNION OF WORKERS AND THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION OF WORKERS - WESTERN AUSTRALIAN BRANCH

APPLICANTS

 -v-

 BHP BILLITON IRON ORE PTY LTD

RESPONDENT

 AND

 THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION OF WORKERS - WESTERN AUSTRALIAN BRANCH, THE CONSTRUCTION, FORESTRY, MINING & ENERGY UNION OF WORKERS, COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING, AND ALLIED WORKERS UNION OF AUSTRALIA, ENGINEERING & ELECTRICAL DIVISION, WA BRANCH

APPLICANTS

 -v-

 BHP BILLITON IRON ORE PTY LTD AND THE AUSTRALIAN WORKERS' UNION, WEST AUSTRALIAN BRANCH, INDUSTRIAL UNION OF WORKERS

RESPONDENTS

CORAM COMMISSION IN COURT SESSION

  CHIEF COMMISSIONER W S COLEMAN

  SENIOR COMMISSIONER A R BEECH

  COMMISSIONER S WOOD

DATE MONDAY, 23 AUGUST 2004

FILE NO/S APPL 157 OF 2003, APPL 1246 OF 2003

CITATION NO. 2004 WAIRC 12462

Result Application to re-open dismissed

Catchwords Award – Award variation – Application to vacate and re-open prior to issuing order – Principles of re-opening - Industrial Relations Act 1979 (WA) s 27(1)(e) & (m), s 40

Representation 

 Mr D.H. Schapper (of counsel) on behalf of the Construction, Forestry, Mining & Energy Union of Workers, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Workers Union of Australia, Engineering & Electrical Division, WA Branch; and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers - Western Australian Branch; Australian Workers' Union, West Australian Branch, Industrial Union of Workers

 Mr H.J. Dixon SC and with him Mr R. Kelly (of counsel) on behalf of BHP Billiton Iron Ore Pty Ltd

Further Reasons for Decision

1         On 23 July 2004 BHPB filed a Notice of Motion applying to vacate and re-open the decision of the Commission prior to making orders in the matter.  In support of its application it submitted that the decision proceeds on a misapprehension of the facts and the law in that it overlooked, and is fundamentally mistaken as to, essential facts namely, the current difference in remuneration between award employees and employment under WPA and AWA arrangements. 

2         BHPB stated that the decision failed to have regard to the relevant evidence and submissions of the company in respect of those matters and to fairly deal with those matters so as to deny it procedural fairness.  It submitted that the orders proposed are contrary to and inconsistent with the decision and that they do not recognise and/or are destructive of the appropriate buffer, or difference in remuneration based on structural differences, between employment under the award and employment under the separate industrial regulations permissible under the Workplace Relations Act 1996 which was determined by the Commission to be 8.5%. 

3         In its submission BHPB stated that the evidence before the Commission did not support the conclusion that the difference in remuneration between AWA and award employees was 16.5%.  Whilst BHPB does not cavil with the evidence that the difference from Mr Cowie’s AWA offer might amount to that approximate figure, BHPB submitted that the evidence before the Commission was to the effect that Mr Cowie’s AWA was not representative. 

4         Accordingly, for the Commission to prescribe an 8% across the board wage increase would have the effect in some cases of reducing the difference between the remuneration of the AWA employees and the award employees to as little as 1%.  BHPB pointed to particular examples to illustrate its point by reference to the value of the allowances received by award employees and their different remuneration depending upon shifts worked. 

5         In opposition to BHPB’s application, the unions submitted that the AWA buffer was only one factor which was taken into account by the Commission in determining the wage increase to be awarded.  Further, the differential accepted by the Commission was open to it on the evidence which was before it.  Furthermore, the differential was very much a live issue and BHPB had had a full opportunity to be heard and took advantage of that opportunity.  BHPB now says the Commission was incorrect but that is not a basis upon which leave may be granted to re-open.  The unions submitted that identifying the value of an AWA was necessarily an approximation and not applicable to all AWA employees universally.  The difference between the two was always general and approximate. 

6         We turn to consider BHPB’s application before us.  The Commission is not functus officio in this matter; the Commission has issued its Reasons for Decision and the Minute of a Proposed Order.  We therefore consider that we do have the power pursuant to s 27(1)(e) to reconvene for the purposes set out in s 27(1)(m) of the Industrial Relations Act 1979 and re-open the hearing if the circumstances warrant that course of action. 

7         The Commission was referred to the decision of the High Court in Autodesk Incorporated v. Dyason (1993) 176 CLR 300; re Australian Railways Union; ex parte Public Transport Commission (1993) 67 AILR 904; and re Australian Meat Industry Employees’ Union; ex parte Ferguson (1986) 67 ALR 491. 

8         In Autodesk Mason CJ referred to the public interest in the finality of litigation not precluding the exceptional step of reviewing or re-hearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law (at 302).  Relevantly to this matter, his Honour Brennan J stated (at 310):

“The decision of this court in the present case was not given in ignorance or forgetfulness of some statutory provision or of some critical fact.  To entertain an application to re-open an appeal after judgment in order to consider further argument on an issue already decided would be to subvert the finality of litigation and to invite interminable arguments about the importance of the legal questions to be recanvassed and the correctness of the answers to those questions already given.”

9         The points referred to by BHPB in its submissions, those being the representativeness or otherwise of the Cowie AWA, the incorporation or otherwise of a value for allowances and the potential for any significant wage increase awarded to impact upon the application of the no disadvantage test, were all matters well ventilated before the Commission.  The Commission noted in its Reasons for Decision that in a matter as comprehensive as the matter presently before it, it has not attempted to recite all of the evidence and the submissions.  Suffice to note that the Commission had the benefit of witness statements, rigorous cross examination and exhibits going to particular wage movements and the impact of the claim and relevant factors going to wage rates generally.

10      We consider that the conclusions reached by the Commission regarding the size of the differences between the AWA and award wage remuneration was reasonably open on the evidence.  Our recognition that the conclusion we reached was not the same for all AWA and award differences was recognised by the conclusion we reached that the value we have found was “an approximate” value in the knowledge of not only the information as it applied to Mr Cowie but also the average level of OTE across the operation.  It is inherent, in our respectful observation on the submissions of BHPB, that a general across the board increase will necessarily have different consequences depending upon the award classification, shift roster pattern and AWA employees between whom comparisons are made.

11      We also consider it is inherent that the exact difference in the case of each employee will be dependant upon the point in time at which the comparison is made.  It was not the intent of the decision of the Commission to maintain the differential upon which part of the conclusion reached was based.  It was not the intention of the Commission that the award be amended with the object of maintaining a notional 7.5% difference between the award and AWA rates of wages.  This could not be achieved by the prescription of the uniform increase proposed by the Commission.  Necessarily the differences between the different AWA salaries and the different award classification salaries will produce markedly differing results.  Indeed, how BHPB structures staff salary rates under an annual review, the Incentive Programme and its Productivity Improvement Scheme are matters for the company.

12      A far more central point in the conclusion reached by the Commission is the assessment by the Commission of an increase that, in our assessment according to s 26 of the Act fairly remunerates the award employees for the work they performed in the context of the manner in which it is performed in BHPB’s operations. The intention of the Commission was to prescribe a general wage increase which fairly reflected the value of the work in the environment in which it is performed by the award employees on the evidence produced to us.  We have not, as has been suggested, done so with any intention of “undermining” the AWA system preferred by BHPB; nor do we do so with any intention of maintaining that system: it is not a within the jurisdiction of the Commission to do so. 

13      Indeed it appears appropriate for the Commission to observe that we have explicitly recognised the existence of that system and its importance to BHPB in the decisions we have reached in 2002 to issue a minimalist award which has provided BHPB with the environment to achieve significant productivity gains from its award workforce and the decisions we have now made which recognises the those reduced differences.  We have not resiled from that position and that should be understood by the parties.

14      We are firmly of the view that the reduction in those differences, and the recognition of that in this decision, is of great benefit to BHPB’s productivity.  We considered in the context of the evidence before us of attitudinal differences between award and AWA/WPA staff in some areas which arise from the potential and actual differences inherent in BHPB having two principal sets of different employment conditions that the increase in aggregate wages we have decided can further reduce those differences and enhance the efficient organisation and performance of work according to the needs of BHPB balanced with fairness to the employees.  

15      The Commission has not proceeded according to some misapprehension of the facts or the relevant law.  We consider that the conclusions reached were open to the Commission on the basis of the evidence, and the submissions explaining that evidence, before us.  We consider the comments of Mason CJ and Brennan, J in Autodesk (cited above) are apposite.  We consider the power to re-open should be exercised with caution and we consider that the motion presently before us is more an attempt to allow the re-argument of what has transpired to be the substantial questions decided in the case when that substantial question was dealt with by the Commission after hearing full argument from the parties.  We do not consider the powers under s 27(1)(e) and (m) of the Act are to be exercised for the purposes of re‑agitating arguments already considered by the Commission.  Accordingly, the application is dismissed.