DISPUTE RE PROVISION OF BROADCAST E-MAIL FACILITIES

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2016 WAIRC 00250

DELIVERED : Thursday, 28 April 2016

FILE NO. : PSACR 23 OF 2015

Applicant

AND

Mr Neil Fernandes

Managing Director Central Institute of Technology

Respondent

CatchWords : Public Service Arbitrator – Matter Referred for Hearing and Determination pursuant to s 44 – Provision of access to Union facilities as required by the GOSAC Award – Jurisdiction – Industrial matter – Enforcement of the Award – Industrial Magistrate’s Court

Legislation : Industrial Relations Act 1979  s 7, s 24, s 44, s 48A, s 80G, s 83, s 83(1), s 83(3), s 83(4), s 83(5)

  Labour Relations Reform Act 2002

  Spam Act 2003

  Government Officers Salaries, Allowances and Conditions Award 1989

  Public Service and Government Officers General Agreement 2014

  Public Service Award 1992

Result : Matter dismissed for lack of jurisdiction

Representation:

Applicant : Mr W Claydon of counsel and Ms J Moore of counsel

Respondent : Mr R Bathurst of counsel

Reasons for Decision

1         The matter referred for hearing and determination under s 44 of the Industrial Relations Act 1979 is that the Civil Service Association of Western Australia Incorporated says the Central Institute of Technology has not implemented the CSA’s request for its delegates to be provided with a facility to send broadcast emails to all staff covered by the Government Officers Salaries, Allowances and Conditions Award 1989 in accordance with the requirements of the Award.  It seeks an order ‘that the respondent provide CSA delegates employed by the Central Institute of Technology with a facility that enables them to send broadcast emails without reservation to all staff covered by the Award employed by the respondent’. 

2         The Award requires the employer to provide each authorised union representative in the agency with ‘[a]ccess to facilities required for the purpose of carrying out their duties’.  The facilities are listed as including email (clause 36 – Union Facilities for Union Representatives; cl 36(5)(b)). 

3         It also requires the employer to provide ‘[a] noticeboard for the display of union materials including broadcast email facilities’ (cl 36(5)(c)). 

4         The Institute objects to the order sought by the CSA, saying that it is prevented from complying with the Award in the way the applicant seeks because of the Spam Act 2003 (Cth).  It also objects on the basis that the matter seeks to enforce alleged rights under the Award.  It says that enforcement of award provisions is not within the Commission’s jurisdiction. 

Does the issue of jurisdiction require a finding that there is an industrial matter?

5         Before proceeding to deal with the issue of the Spam Act, it is necessary to decide the jurisdictional issue. 

6         The CSA says that the dispute is within the jurisdiction of the Commission, and in particular the Public Service Arbitrator, as it is an industrial matter within the meaning of s 7 of the Act.  The CSA refers to the need for there to be a finding that there is an industrial matter in accordance with the definition in s 7 of the Act, as required by s 24 of the Act. 

7         Section 24 does not require the Commission to make such a finding, rather it provides that the Commission has jurisdiction to decide whether the matter before it is an industrial matter. However, Springdale Comfort Pty Ltd v Building Trades Association of Unions (1987) 67 WAIG 325 (IAC) requires that where a question of jurisdiction is raised, the Commission must determine that question before it can proceed to deal with the matter.  A question of jurisdiction includes whether the matter is an industrial matter. 

8         However, there is no contention that the matter is an industrial matter.  The Institute says that issue is not in dispute (see Respondent’s Submissions in Reply on Jurisdiction, 8 April 2018 [2]). 

9         The issue is the nature of that industrial matter and how it is to be dealt with, including most particularly, whether it is within the jurisdiction of the Arbitrator, or whether it is a matter of enforcement for the Industrial Magistrate’s Court.

What is the essential nature of the claim?

10      The Schedule to the Memorandum of Matters referred for Hearing and Determination sets out that the dispute referred for hearing and determination is, as the CSA specifies, a claim over the nature and extent of providing a broadcast email facility to the CSA’s delegates at the respondent’s workplace.  However, it goes on to say that the CSA ‘wants its delegates to be provided with a facility to send broadcast emails to all staff covered by the GOSAC Award; members and non‑members without reservation’. 

11      The Award provision makes no distinction between the provision of broadcast emails to union members or non‑members.  The order sought seeks only that the Institute do what the Award requires, that is to provide delegates with a facility to enable them to send broadcast emails to staff. 

12      The Institute objects, saying that it is prevented from doing so by the Spam Act, suggesting that, but for the Spam Act it would comply. 

13      The questions for determination are: 

(a) whether the Institute is obliged to comply with the Award provision, or

(b) whether there is a statutory impediment, that is, a lawful reason for non‑compliance, and

(c) consequently, whether an order should then issue requiring compliance with the Award. 

14      Therefore, I conclude that it involves the determination of existing rights and obligations, and what the CSA seeks is an order that enforces the Award. 

Do the powers under s 44 of the Act allow the Arbitrator to enforce the Award?

15      Section 80G of the Act provides that the Arbitrator has the powers applicable to the Commission under s 44. 

16      The issue of the Commission’s powers under s 44 and whether they allow enforcement of award provisions was comprehensively dealt with by the Full Bench in Crewe and Sons Pty Ltd v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 2623, 2628.  It said:

In addition, no power of enforcement of an award is conferred on the Commission however constituted in relation to an award, only upon the Industrial Magistrate. 

A matter which involves the determination of existing rights under an award and which therefore does not involve the application of section 26, because it involves the determination of existing prescribed legal rights, is not a matter which section 44 empowers in the arbitral function, unless it is in the course of addressing an industrial matter, but subject to what we say hereunder. 

…

A claim which arises clearly out of the contract of employment and the award is more likely to be a matter for enforcement.  Thus, a claim for wages due and payable by an employer to an employee is a claim for the enforcement of an existing right as is a claim for the enforcement of a provision in an award. 

If the claim involves a determination of what is payable in accordance with legal principle rather than what should be ordered as a matter of equity, good conscience and the substantial merits of the case, under section 26, then the matter is more likely to be a matter of enforcement or interpretation. 

17      This matter does not require the application of any consideration of fairness and equity under s 26 of the Act but involves the determination of existing rights and obligations and whether they have been met.  Therefore according to Crewe and Sons, it is a matter of enforcement.

Does the decision in Coles/Myer defeat the jurisdictional impediment?

18      The CSA relies on the decision of the Full Bench in Coles/Myer Ltd trading as K‑Mart Discount Stores v The Shop, Distributive and Allied Employees’ Association of Western Australia (FB) (1992) 72 WAIG 1747 for two propositions.  It says that this decision supports its assertion that ‘the dispute settlement procedure under the award or agreement enlivens the jurisdiction of the Arbitrator, and will defeat apparent claims of lack of jurisdiction based on enforcement’. 

19      I will deal firstly with the issue of enforcement.

(a) Does the decision in Coles/Myer overcome the jurisdictional impediment of enforcement?

20      The circumstances of this case were that the Shop and Warehouse (Wholesale and Retail Establishments) Award provided for certain arrangements of the hours of work.  However, it also provided for specific agreements to be made between the employer and the employee for the employee to work those hours in a number of different ways.  The agreement between the employer and the employee was not an industrial agreement within the meaning of the Act, and registered by the Commission.  It was an agreement in writing between the employer and the employee about which the Union was to be advised.  The clause provided that any dispute arising out of the method of implementation of working hours arrangements was to be referred to the Commission for adjudication. 

21      The Commission at first instance referred a dispute under s 44 of the Act in which the Union claimed that the employer had unfairly applied the provision in the award allowing it to obtain the agreement of employees to different working hours.  The question the Commission dealt with was ‘not whether K‑Mart had exercised a legal right pursuant to the award, but whether K‑Mart had exercised its rights under the award fairly’ (1748).  

22      The Full Bench unanimously found that ‘orders for enforcement of awards can only be made by the exercise of the jurisdiction of the Industrial Magistrate’s Court, pursuant to s.83 of the Act … It is beyond power for a Commissioner under s.44 to purport to entertain an application to enforce an award (see Crewe & Sons Pty Ltd v AMWSU)’. 

23      The Full Bench quoted Crewe & Sons at 2628, saying: 

If the claim is for what is right and fair, and involves in fact the determination of a dispute as to an industrial matter, with reference to future conduct, or industrial policy, it is arbitral (see Crewe & Sons Pty Ltd v AMWSU at 2627 and see the cases also cited therein). 

If it were an exercise of judicial power, it would plainly be ultra vires s.44 of the Act.  If it is an exercise of arbitral power, it is clearly intra vires. 

If the Commission heard and determined the matter, even were it a dispute as to a past transaction, as this was, and many industrial disputes are, and was not deciding the existing rights, then that would be an exercise of the arbitral function and intra vires s.44, because s.26(1)(a) of the Act would be required to be applied inter alia. 

24      Therefore, the Full Bench in Coles/Myer found the matter before the Commission was not a claim of a breach of the award; there was no application to decide existing rights; there was no claim for any specific order that the award be complied with and there was no claim that could be read as attempting to enforce the award.  Rather, the issue was about the fairness of the employer’s actions in entering into an agreement allowed by the award, and a claim that the employees who had entered into the agreement not be bound by it.  The Full Bench found to require them to continue to be bound ‘would be contrary to equity, good conscience and the substantial merits of the case; it would be industrially unfair if in future the members were required to be bound by it’ (1750).  The Full Bench went on to note ‘[t]his was no binding declaration of right, no determination of existing legal rights, but an arbitral decision made … which determined that the agreement could not bind the parties in the future because it had been unfairly brought about’. 

25      Therefore, the decision in Coles/Myer can be distinguished from this case and is of little assistance to the CSA as it reinforces the decision in Crewe and Sons.

26      The CSA also refers to the decision of the Full Bench in St Michael’s School v The Independent Schools Salaried Officers’ Association of Western Australia, Industrial Union of Workers [2000] WAIRC 00002; (2000) 80 WAIG 2839.  This related to a referral under s 44 of the Act, and the applicant sought an order reclassifying the employee.  The Full Bench found that: 

42 Its resolution required a finding of fact as to [the employee’s] duties and the application of the terms of the award (perhaps involving its interpretation) to those duties, to determine whether her classification should be as a Level 4, not a Level 3, employee, and whether the order sought should therefore issue. 

43 There was clearly no attempt to enforce an order to pay the monies or indeed to enforce the award.  The matter involved a determination of what classification under the award applied to an employee.  The order, as the Commissioner correctly observed, did not seek to compel the employer to do anything.  Clearly, if the respondent was successful in obtaining the order and Mrs Murray was not paid what a Level 4 employee should be paid under the award, then the award would be enforceable in the Industrial Magistrate’s Court, pursuant to s.83 of the Act.

44 Quite plainly, therefore, the order sought was not an order for enforcement because it does not seek the enforcement of existing rights, it did not allege a breach of an award, it was not a claim for a liquidated amount said to be due under the award and to be determined according to existing legal rights.  The nature of the order sought was a decision as to the future rights, conduct and obligations of the parties and of an employee and that is the essence of arbitration.  Further, which is the essence of industrial arbitration, the question ultimately was what was right and fair, particularly to the employee (see Crewe and Sons v AMWSU (FB)(op cit) at page 2627 and Re Cram and Others; Ex parte Newcastle Wallsend Coal Co Pty Ltd 163 CLR 140, see also Health Services Union of Australia v Dorevitch Pathology (unreported) (No C32827 of 1999) delivered 8 February 2000 (AIRC)).

45 The nature of the application and the order sought, for those reasons, is not one of enforcement but arbitral. 

27      That case is distinguishable from this matter because in this case, what the CSA seeks is an order that, in effect, the Institute comply with the Award, that is, the enforcement of an existing right.  It does not seek the creation of a new right.  It is not about what is fair and equitable, but about whether the Institute must comply with the obligations to provide certain facilities to the CSA delegates. 

(b) Does the decision in Coles/Myer dealing with dispute resolution provisions enliven jurisdiction?

28      The CSA says that the dispute settlement procedure under the Public Service and Government Officers General Agreement 2014, required by s 48A of the Act, enlivens the Arbitrator’s jurisdiction to deal with this matter.  It says the instituting of s 48A post‑dates and overcomes the decision in Crewe and Sons. 

29      Section 48A of the Act was instituted in 2002 as part of the Labour Relations Reform Act 2002. It requires awards and agreements to contain provisions for the parties to follow to resolve questions, disputes or difficulties arising under those instruments.

30      The General Agreement provides for the establishment of a Joint Consultative Committee which is ‘a forum for consultation on issues such as … industrial issues’ (cl 46.7(b)).  Matters not resolved through the JCC can progress through clause 49 – Dispute Settlement Procedure of the General Agreement. 

31      Both subclauses 49.5, which deals with questions, disputes or difficulties of employees, and 49.8, which deals with questions, disputes or difficulties between the parties, provide that where they are unresolved, they may be referred ‘to the WAIRC’. 

32      The Award also provides for unresolved ‘questions, difficulties or disputes arising under the Award of officers bound by the award’ to be referred to the Commission (clause 64 – Dispute Settlement Procedure). 

33      This dispute arose because the CSA sought to have the Institute comply with its obligations under the Award.  This matter was raised in the JCC established under cl 46 of the General Agreement but was not resolved, and was then the subject of the application for a conference under s 44, which the CSA says invoked the dispute settlement clause under cl 64 of the Award. 

34      In Chief Executive Officer, Department of Agriculture and Food v Trevor James Ward [2008] WAIRC 00079; (2008) 88 WAIG 156 [151], Ritter AP, with whom Wood C agreed, found that a provision within a dispute settlement procedure clause in the Public Service Award 1992, which provided for unresolved disputes to be referred to the Commission, ‘[d]espite the apparent width of the subclause, it cannot change the effect of the Act’. 

35      The amendments to the Act to provide for dispute settlement procedures in awards, made in 2002 by the Labour Relations Reform Act 2002, do not bring the matter of the enforcement of the Award, or a dispute about non‑compliance with the Award, within the Arbitrator’s jurisdiction.  The dispute settlement procedure in the Award cannot confer on the Arbitrator jurisdiction which the Act says belongs to the Industrial Magistrate’s Court. 

The Industrial Magistrates Court’s jurisdiction

36      Section 83 of the Act provides for the Industrial Magistrate’s Court to deal with applications for the enforcement of a provision in certain industrial instruments, including awards and agreements.  It is an exclusive jurisdiction in that subsection (3) provides that an application for enforcement shall not be made otherwise than under subsection (1) of s 83. 

37      Where the contravention or failure to comply with the provision of the industrial instrument is proved, the Industrial Magistrate’s Court may do a number of things.  It is not limited to issuing a caution or imposing a penalty under s 83(4) as it was previously, but includes making an order to prevent further contravention or failure to comply with the provision (s 83(5)).  This latter provision was included in the Act by the Labour Relations Reform Act 2002. 

38      Therefore, reference to the limitation of the enforcement powers available to the Industrial Magistrate’s Court referred to in J‑Corp Pty Ltd v The Australian Builders’ Labourers’ Federated Union of Workers, Western Australian Branch (1993) 73 WAIG 1185, 1188 is no longer relevant.  Enforcement for the purposes of the distinction between the Arbitrator’s jurisdiction and the Industrial Magistrate’s Court’s jurisdiction includes the capacity for the Industrial Magistrate’s Court to find a contravention, impose a penalty and direct compliance with the instrument. 

Conclusions

39      Where a question, dispute or difficulty relates to the creation of a future right, it will involve the Commission, or in this case the Arbitrator, exercising an arbitral function, which it may do under s 44.  Where the question, dispute or difficulty involves, as the outcome a determination, that one party has breached the award, order or agreement and an order for compliance, that matter remains one of enforcement which is within the Industrial Magistrates Court’s jurisdiction, not within the Commission’s jurisdiction. 

40      I conclude that the matter referred for hearing and determination requires the enforcement of the Award.  The Arbitrator acting under s 44 of the Act does not have jurisdiction to do so.  Therefore the matter must be dismissed.