Australian Childcare Centres Association v Liquor Hospitality and Miscellaneous Union, Queensland Branch, Union of Employees [2006] ICQ 4 (2006) 181 QGIG 143

[Extract from Queensland Government Industrial Gazette, dated 3 February, 2006, 2001, Vol. 181, No. 5, pages 143-144] INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 - s. 341(1) - appeal against decision of industrial commission Australian Childcare Centres Association AND Liquor Hospitality and Miscellaneous Union, Queensland Branch, Union of Employees (C/2005/93) PRESIDENT HALL 23 January 2006 REPORT ON DECISION (as edited) In giving a decision from the Bench on 21 December 2005, the President stated: "By a decision of 9 December 2005, I set aside certain orders of the Full Bench of the Queensland Industrial Relations Commission in case number D/2003/2133. Subsequently, on 13 December 2005, the Full Bench of the Commission to whom the issues had been remitted, further heard the parties. It is apparent that the Commission took account of that which was said by the now Appellant. Although the Commission maintained the days of hearing previously set and, indeed, added two further days viz., 27 and 28 February, and although the Commission rejected submissions by the Appellant about shortening weeks from five days to four days of hearing, the Commission did depart from the earlier directions orders to the extent of waiving any requirement for witness statements (other than expert witnesses) to be exchanged. If an attack had been made today on that decision on the basis that the Appellant had not properly been heard, it would have failed. Today's complaint arises out of a letter dated 28 November 2005 from the Liquor Hospitality and Miscellaneous Union, Queensland Branch, Union of Employees to the members of the Full Bench. That letter was referred to by the Vice President in the proceedings of 13 December 2005 in the following terms: 'And those directions emanated as a result of correspondence from the LHMU dated 28th of November.'. The reference is obviously to the directions set aside on 9 December 2005. Mr Moloney who then appeared for the Appellant dealt with that matter on transcript: 'I certainly acknowledge that. Your Honour, I am not aware of the correspondence from the LHMU of 28 November 2005 that resulted in the directions order of the 30 November 2005. We have not seen a copy of that correspondence, and I'd have to submit there was obviously, in the absence of seeing that correspondence, no opportunity for us to reply to that or to express a view to the bench, and that's not a criticism of the bench. It's more of a criticism of the applicant for not providing us with a copy of the correspondence before that it forwarded to the bench.'. If the matter had stayed there, given that Mr Moloney had tied the letter of 28 November to the early directions orders and said that no criticism was being made of the Full Bench, and given that Mr Moloney had not sought access to the letter of 28 November, the circumstance that the Full Bench pressed ahead without releasing the document would have been entirely innocuous. The difficulty is that subsequently, the letter was released to the applicant by the Industrial Registrar. It is apparent that the letter of 28 November 2005 was not a mere request for issue of directions, nor indeed a request for the issue of directions accompanied by draft directions. The document included a submission about why directions previously envisaged (but not made) would be unsatisfactory and why earlier dates for hearing and exchange of documents should be set. It may be that the submission is entirely correct. However, the Appellant wishes to put a submission about the matters raised in the letter which relate to the desirability of placing orders in position before amendments to Federal legislation remove corporate employers and their employees from the State jurisdiction. It is not merely a matter of desirability; there are arguments to be heard about the jurisdiction of the State Commission to make orders, the purpose of which is to frustrate Federal legislation. None of those arguments have yet been put because the matter has not been raised in open Court. It is certainly true that there are passages in the transcript where Mr Crank, who appeared for the LHMU in proceedings before the Full Bench, indicated that a motivation for seeking earlier times was the pending Federal legislation, but the submission was not developed. At the end of the day, one has to face the reality that on 15 December, following the proceedings of 13 December, the Full Bench has made an order in circumstances where it had before it a submission which was not known to the Appellant. It seems to me that it is inevitable, in those circumstances, that the orders made on 15 December must be set aside on the grounds of denial of natural justice. I do set the orders aside. There is an issue as to what should happen. Notwithstanding the careful argument of Mr Murdoch (SC) for the Appellants and having considered the decisions of the High Court in The Queen v The Commonwealth Conciliation Arbitration Commission and others; ex parte Angliss Group (1969) 122 CLR 546 at 552 to 554, and the decision in Re J.R.L.; ex parte C.J.L. (1986) 161 CLR 342 at 352, I am not satisfied that a fair-minded person, particularly having regard to the way in which Mr Moloney dealt with the matter at first instance, would conclude that that which had -- 1 of 2 -- 2 happened was other than inadvertent. There is certainly room for argument that the Full Bench has a clear view that because days are available in February, those days should be used to secure a prompt hearing of the matter. The circumstance that the Full Bench is shown to have a particular opinion falls well short of establishing that a reasonable person would entertain a view that an unbiased hearing may not be had. In those circumstances, I am not disposed to order that the matter be remitted to a Full Bench differently constituted. I am, however, concerned that in a matter in which directions orders had become quite controversial, the directions orders have on two occasions been dealt with by two members only of the Full Bench. As it was put from the Bar table, it is clear that no-one knows whether Commissioner Bechly was contacted or not. It is known that Commissioner Bechly did not have the advantage of hearing the argument. It seems to me that save on inconsequential and administrative issues, parties appearing by a Full Bench whether constituted by three or five members of the Commission have the right to have the matter heard by all members in circumstances where all members have the opportunity to participate in the decision-making process. In circumstances where Commissioner Bechly is on leave and, from the point of view of the Respondent there is some urgency to the matter, it may be that the Vice President will choose to reconstitute the Full Bench. However, pursuant to s. 341(3)(d) of the Industrial Act 1999, in remitting the matter to the Full Bench I specifically direct that the Full Bench, howsoever constituted, sit as a Full Bench; i.e. that all members of the Full Bench sit together to hear any further applications about the setting of directions. I will adjourn the Court.". Dated 23 January 2006. By the Court, [L.S.] G.D. Savill. Industrial Registrar. Released: 23 January 2006 Appearances: Mr J. Murdoch SC, instructed by Freehills Solicitors, for the Appellant. Mr C. Hardy on behalf of Australian Childcare Centres Association. Mr M. Long for Local Government Association of Queensland. Mr A. Herbert instructed by Hall Payne Solicitors, for the Respondent. Government Printer, Queensland The State of Queensland 2006. -- 2 of 2 --