Campbell Security Pty Ltd v Queensland Confederation of Industry Limited, Union of Employers [1991] QIRC 107 (1991) 136 QGIG 585

[585] The Queensland Government Industrial GazettePUBLISHED BY AUTHORITY Annual Subscription $260 ISSN 0 I 55-9 362 Vol. 136] SATURDAY, 20 APRIL, 1991 [No. 23 QUEENSLAND INDUSTRIAL COURT Industrial Relations Act 1990 s. 9.4 - appeal to industrial commission Campbell Security Pty. Ltd. AND Members of the Commercial Security Agents' Association AND The Federated Miscellaneous Workers Union of Australia, Queensland Branch, Union of Employees AND Queensland Confederation of Industry Limited, Union of Employers (No C2 of 1991) SECURITY INDUSTRY (CONTRACTORS) AWARD - STATE JUSTICE MACKENZIE, ACTING PRESIDENT 9 April 1991 Leave to Appeal - Appeal - Case Argument - Error of Law - Public Interest - Award Coverage - Casual Loading - Application Refused. JUDGMENT This is an application for leave to appeal pursuant to s. 9.4 of the Industrial Relations Act 1990 by Campbell Security Pty. Ltd. and members of the Commercial Security Agents' Association. Section 9.4 provides - "9.4 Appeals to Industrial Commission. Qd.s.27; Sch.1.cl.15 (I) A person aggrieved by a decision of the Industrial Commission constituted by a single Industrial Commis- sioner, with the leave of the President, may appeal against the decision to a Full Bench of the Commission on a ground other than - 110482-53 • error of law; • excess, or want, of jurisdiction. Leave for an appeal is not to be granted unless the President is of the opinion that the matter is of such importance that an appeal should be brought in the public interest. The submissions before me concentrated on the requirement that leave is not to be granted unless I am of the opinion that the matter is of such importance that an appeal should be brought in the public interest. The last paragraph of s. 9.4(1) has much in common with the now repealed s. 35(3) of the Conciliation and Arbitration Act 1904 (Commonwealth) which provides - "(3) An appeal does not lie ... unless, in the opinion of the Commission, the matter is of such importance that. in the public interest, an appeal should lie.". There are numerous cases in which s. 35(3) of the Conciliation and Arbitration Act has been considered. A perusal of the cases does not reveal any formula that can be applied in determining whether the test has been satisfied. On the contrary, expressions can be found in the authorities that indicate that each matter has to be looked at in the context of its own circumstances. For example in re: Gas Industry Award (1963) 104 C.A.R. 376 at 381 the following is said:- "We have, of course, given full consideration.to the several cases cited on both sides concerning the application of section 35(3). Our view is that the question of 'sufficient importance' cannot be decided on the basis of case law. An examination of earlier cases indicates that each of them was decided upon its own facts and merits, and our conclusion is that it must be a question of impression and judgment in each case whether the matter involved in a particular appeal possesses the degree of importance required under section 35(3) of the Act.". In re: Ships, Painters and Dockers Award (1960) 94 CAR. 579 at 614 the following appears:- -- 1 of 2 -- 586 QUEENSLAND GOVERNMENT INDUSTR IAL GAZETTE [20 April, 1991 "It is obviously impossible to express any general standard or degree of importance which will satisfy t he test of 'such importance' under section 35(3); every case must in our v ie w be considered on its own ments according to its individual circumstances. For those reasons we consider that no good purpose would be served by a recital of the various considerations which have led us to opinions adverse to the rejected subject- mattcrs.". Th e question of "public interest" is dealt with in the fo llowing terms in re: Bank O.ff,cials ( Federalj Award ( 19 7 I) 13 8 C.A.R. 63 at 74:- ' 'The test of importance in the pub lic interest will not automatically be satisfi~d by showing that the order under appeal touches some factor or factors of importance or principle. The circumstances surrounding th e makin~ of the order will also be relevant. The circumstances mav include the history of the provision in question. the natu·re of the claims, attempts made at conciliation, the scope of the arguments presented, the conduct of the parties, etc .". In re: Australian In surance Employees· Union Ex parte Academy In surance Pt y. Ltd. 78 A.L.R. 466 Dawson J. sitting as a single Judge of the High Court had to consider an application for an order nisi for mandamus in relation to s. 34{6)(b) of the Conciliation and Arbitration Act 1904 (Commonwealth), a provision which required the President of the Conciliation and Arbitration Com- mission to grant a hearing by the F ull Bench of the Co mm ission if the dispute was "of such importance th at in the public interest it should be dea lt with" in that way. In the cou rse of refusing the original app lication the President had said "In my opinion, no special or extraordinary circumstances ex is t in this case . ... . In granting the appl ication for the order nisi Dawson J. said the following:- " The criterion applied by th e President was clearly that of ' special or extraordinary circumstances'. Not only is that not the test required by s. 34(6)(b), but it is plainly a narrower tes t, for an application may invol ve circumstances which are neither special nor extraordinary but which are, because of their very generality, of great importance in the public interest. It is not to the presence or absence of some special feature to which the President is required to look before he acts under s. 34(6)(b), although a special or extraordinary circumstance may be of sufficient importance in the public interest to require a hearing by a Full Bench. Ii is the who le of the ci rcumstances which the President is required to weigh in order to determine where the public interest lies in the future conduct of the proceed- ings. If he determines that the importance of the matter is such that the public interest requires it to be dealt with by a Full Bench then he shou ld grant the application and direct accordingl y.". Tha t passage illustrates the dual natu re of t he concept in that a matter is not necessari ly of importance in the public interest merely because it is special or extraordinary but a matter which is neither special nor extraordinary may be of that character because of its very generality. It all comes back to the proposition that each case must be considered in the context of its own particular circumstances. In th e only Queensland decision on s. 9.4 of the Industrial Re!arions Act /990 (Illaton Pt y. Limited v. Australian Bank Employees' Un ion, Queensland Di vis ion Union of Employees) 135 QGIG 93 Moynihan P. pointed out that even if there were an element of publ ic interest in a particu la r matter it by no means followed that every aspect of proceedings for such an award was a matter of such importance that an appeal concerning it shou ld be brough t in the public interest. That is another facet of t he concept and is consistent with the principles stated above. T urning now to the application before me Comm issioner Dempsey heard an application in which there was a common goal be tween Employers and employees 10 bring together, under the provisions of one award, employees in t he contract security services industry. At the time when the application was made to Comm issioner Dempsey some employees in t he industry were covered by the Security Services (Contractors) Award - Metropolitan Security Services, Wormald International Security and T NT Group 4 Secu- rity - State. some were covered by the Security Services (Con- tract ors) Award - M etropolitan Secur it y Services, Wo rmald International Security and TNT Group 4 Security - State - Airport Security Personnel - Industrial Agreement, some were covered by the Miscellaneous Workers' Award - State and some were award free. The achievement of a "level playing field" was seen by Employers as a desirable obj ecti ve . Only one matter was left fo r arbitration. Tha t was a provision under which, if included, c.asuals working on week-ends would be paid at a rate no less than that paid 10 a permanent employee. T he en t itlement o f casual employees to penalty rates varied, depending on the emp loyee's coverage by the provisions above. Some were entitled to payment on the basis sought in the present case. Some were not. Therefore Commissioner Dempsey was fa ced with the task of making an award that covered an indust ry, emp loyees in which had been subject to separate and distinct enut lements previously. He included the provision against which leave to appeal is now sought in the award. In proceedings under s. 9.4, it is not my function to determine whether the decision in respect of which leave to appeal is sought is correct or otherwise. The question for me is whether I am satisfied that the matter is of such importance that an appeal shou ld be brought in the public interest. As each case has to be considered on its own facts, a variety of approaches to this question may be valid. In the present case, the applicants say that the decision to inc lu de the provision is incon- sistent wi th current wage fix i ng principles and wi th t he policy of the Commission as to payment for casual work at week-ends. Mr . Livingstone for the applicants submitted that I should be satisfied that the test in s. 9.4 of the Industrial Relations Act 1990 had been satisfied on these two grounds. The first was that there were two Full Bench decisions (the Fast Food Industry Award - South-Eastern Division ( I 984i 115 QGIG 72 and the Miscellaneous Workers· Award - State ( I 982) 111 QGIG 938) where applications for not dissimilar provisions in respect of casual workers had not been granted. Mr. Livi ngstone submitted that if the Full Bench made a decision wh ich involved the application of a particular principle a single Comm issioner was not entitled to override that decision. He submitted that where depanure from an accepted principle was involved, the matter was of such importance that in the pub lic interest an appeal should lie. He also submitted that the decision offended the Principles annexed to the State Wage Case October 1989 ( 1989) 132 QGIG 119 9 in three respects. Firstly he referred to the principle that in the making of a first award, prima fa cie, the main consideration is existing r ates and condi tions . Secondly he submitted that Commissioner Dempsey had granted an increase in wages which exceeded the maximum increase allowable under the State Wage Case Principles and tha t could onl y be justified if the claim had been presented as a special case. Thirdly. he submitted that Commissioner Dempsey's reference to informati on placed before him as to the payment of penalty rates in other States contravened the principle that th e doctrine of comparative wage j ustice should not be relied upon to establish an anomaly. Having regard to the li mited nature of the proceedings before me, I do not need to co nsider whether the underlyi ng assumptions in th ose propositions are valid. I simply assume them fo r th e purposes of argument. I have come to the conclusion that even making that a ss umption, the applicants have not established a basis for leave. The pa rties came before the Commission seeking 10 establish a "level playi ng fie ld". Commissioner Dempsey was faced with the choice of levelling it at the higher level by increasing the lower level app licable to some of the employees in the indust ry or by reducing the higher level payable to some of the emp loyees to the lower level. He chose to do the former. Jn my view that is a differen t si tu ation from that wh ich was being considered in either the Fast Food Ind ustrv Award or the Miscellaneous Workers' A ward cases. They were not cases where the choice that had to be made by Commissioner Dempsey had to be made. Equally where there are already existing benefits in respect of one group of employees but no such provision or a lesser prov is ion in respect of others it cannot be cogently argued that there is an automatic obligation under the State Wage Case Principles to appl y on ly the lower level if an application is made to bnng th em a ll under one award. Each situation would have to be considered on its own facts in such a case. It was not suggested that there would be an y flow on effect from this particular decision. T h at attitude is undoubted ly correct because of th e particular circumstances of the case. 20 April, 199 1] QUEENSLAND GOVERNMENT IN DUSTRIAL GAZETTE Having regard to all of these factors, I am not satisfied that the matter is of such importance that an appeal should be brought in the public interest. I therefore refuse the application. Da ted this ninth day of April, 1991. K.G. W. MACKENZIE, Acting President. Appearances:- M r R.J. Livingstone for Campbell Security Pty. Ltd. and Com- mercial Security Agents' Association. Mr G. Muir for the Queensland Confederation of Industry Limited, Union of Employers. Mr l Douglas Q.C. and with him Mr C. Forrest (instructed by Messrs Peter Channe ll and Associates) for The Federated Miscel- laneous Workers Unio n of Australia, Queensland Branch, Union of Employees. Operat ive Date: N/A Appeal - Security Industry Contractors * 5 87 -- 2 of 2 --