FEDERAL COURT OF AUSTRALIA

Australian Rail Tram & Bus Industry Union v Torrens Transit Services Pty Ltd

[2001] FCA 975

Workplace Relations Act 1996 (Cth) s 170MB

Warramunda Village Inc v Pryde [2001] FCA 61 considered

Spastic Society of Victoria Ltd v Ardelle [2001] FCA 70 considered

Finance Sector Union v PP Consultants (1999) 91 FCR 337 referred to

Community and Public Sector Union v Stellar Call Centres Pty Ltd (1999) 92 IR 224 referred to

Gardner v Dairy Industry Authority of New South Wales (1978) 18 ALR 55 considered

Integrated Lighting & Ceilings Pty Ltd v Philips Electrical Pty Ltd (1969) 90 WN (Pt 1) (NSW) 693 referred to

Wright v Collie [1959] NZLR 767 referred to

Byrne v Herbert [1966] 2 QB 121 referred to

AUSTRALIAN RAIL TRAM AND BUS INDUSTRY UNION AND TRANSPORT WORKERS UNION OF AUSTRALIA v TORRENS TRANSIT SERVICES PTY LTD S 17 OF 2000

MANSFIELD J

ADELAIDE

25 JULY 2001

THE COURT ORDERS THAT:

1.         Pursuant to O 29 r 2 of the Federal Court Rules, the question whether Torrens Transit Services Pty Ltd is bound by the TransAdelaide Port Adelaide Bus Certified Agreement 1998 and/or the TransAdelaide Mile End Bus Certified Agreement 1998 by operation of s 170MB of the Workplace Relations Act 1996 (Cth) be heard and determined separately from and before any other question arising in the proceedings.

THE COURT DECLARES THAT: 

2.         From 23 April 2000 Torrens Transit Services Pty Ltd is bound by the terms of the TransAdelaide Port Adelaide Bus Certified Agreement 1998 and by the terms of the TransAdelaide Mile End Bus Certified Agreement 1998 by operation of s 170MB(2) of the Workplace Relations Act 1996 (Cth), but only to the extent that those agreements respectively relate to the part of the business of TransAdelaide which has in fact been transmitted to Torrens Transit Services Pty Ltd

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicants claim declarations pursuant to s 170MB(2) and other provisions of the Workplace Relations Act 1996 (Cth) (“the Act”) that the respondent is bound to employ persons engaged to drive buses operated by the respondent on and from 23 April 2000 by the terms and conditions of  two agreements certified under the Act.  Those two agreements are the TransAdelaide Port Adelaide Bus Certified Agreement 1998 (“the Port Adelaide Agreement”) and the TransAdelaide Mile End Bus Certified Agreement 1998 (“the Mile End Agreement”).

2                     The parties sought an order under O 29 r 2 of the Federal Court Rules that the question :

“Whether [the respondent] is bound by the Mile End Agreement and/or the Port Adelaide Agreement by operation of s 170MB of the Act.”

be heard and determined separately from and before any other question arising in the proceedings.  In my reasons for judgment given on 21 November 2000 I acceded to that request, and made an order accordingly.  I also determined, in those reasons for judgment, that the respondent is bound by the two agreements by operation of s 170MB(2) of the Act, but only to the extent that those agreements respectively relate to the part of the business of TransAdelaide which has in fact been transmitted to the respondent. 

3                     I did not make formal orders or declarations at that time, but adjourned the proceeding to enable the parties to undertake negotiations with a view to determining the precise consequences of the binding effect of those two industrial agreements in the circumstances.

4                     The parties have now reported that they have been unable to reach agreement on those matters.  However, the applicant no longer seeks any further orders in these proceedings.  In particular, the applicants no longer seek any order for the imposition of a penalty upon the respondent pursuant to s 298U(a) of the Act, or any specific determination that the respondent contravened s 298K of the Act.  Nor do the applicants now seek any orders pursuant to s 298U(e) that the respondent cease engaging in any particular conduct, or that the respondent remedy the effects of any conduct in contravention of s 298K of the Act, nor any other orders under s 298U(f) of the Act.  Finally, the applicants do not pursue any injunctive orders under s 170VZ of the Act nor any finding that the respondent has contravened s 170WG(1) of the Act so as to give rise to an entitlement to injunctive relief.

5                     In effect, the parties now ask the Court to make final declaratory orders to give effect to the decision published on 21 November 2000, but no other orders in the proceedings.

6                     Counsel have drawn to my attention the decisions of the Full Court (Gray, Branson and North JJ) in Warramunda Village Inc v Pryde [2001] FCA 61 and Spastic Society of Victoria Ltd v Ardelle [2001] FCA 70.  I do not consider that those decisions indicate that it is inappropriate for the Court to formalise the decision which it has made on 21 November 2000 by making of appropriate declaratory orders.  Unlike the circumstances in those cases, the Court has made an order under O 29 r 2 of the Federal Court Rules for the separate and prior decision of a particular question which it was necessary to decide in the course of the proceedings.  That question has been decided after a hearing, and upon evidence.  There is no dispute that, in respect of that question, declaratory orders might properly be made pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth).  Such orders were made, for example, in Finance Sector Union v PP Consultants (1999) 91 FCR 337 and in Community and Public Sector Union v Stellar Call Centres Pty Ltd (1999) 92 IR 224.

7                     Counsel for the parties did not address whether it is appropriate to make such orders having regard to the fact that the applicants no longer seek any other orders in the proceedings.

8                     There is, however, a continuing issue between the parties concerning the question whether the respondent is bound by the Port Adelaide Agreement and/or the Mile End Agreement by operation of s 170MB of the Act, and if so, to what extent.  The declaration sought will formally resolve that dispute.  The parties no longer seem, in these proceedings, to pursue the consequences of that resolution by any further orders but it is common ground that they each recognise that those consequences will need to be addressed.  To date, they have been unsuccessful in addressing them by negotiation.  As a result of the declaration being made, the applicant will have consequential rights which are not merely theoretical or of academic interest only:  cp Gardner v Dairy Industry Authority of New South Wales (1978) 18 ALR 55 per Barwick CJ at 60.  The parties acknowledge that, in the light of the declaration which they seek, the issue of principle between them will be formally resolved and they will be assisted then in a real and practical sense in addressing the consequences of the decision.  If they are unable to resolve the consequential issues by negotiation, counsel has indicated that there are other proceedings or procedures available to address and determine those issues.  I am therefore satisfied that there is utility in making the declaratory order sought, notwithstanding that in these proceedings no further orders are now sought:  see eg per Hope J in Integrated Lighting & Ceilings Pty Ltd v Philips Electrical Pty Ltd (1969) 90 WN (Pt 1) (NSW) 693 at 701 - 702;  Wright v Collie [1959] NZLR 767;  Byrne v Herbert [1966] 2 QB 121 per Lawton J at 126.  In that circumstance, I consider it appropriate in the exercise of my discretion to make a declaration to formally give effect to the reasons for decision published on 21 November 2000.

9                     Accordingly, I propose to make the following orders :

Pursuant to O 29 r 2 of the Federal Court Rules, the question whether Torrens Transit Services Pty Ltd is bound by the TransAdelaide Port Adelaide Bus Certified Agreement 1998 and/or the TransAdelaide Mile End Bus Certified Agreement 1998 by operation of s 170MB of the Workplace Relations Act 1996 (Cth) be heard and determined separately from and before any other question arising in the proceedings.

The Court declares :

            That from 23 April 2000 Torrens Transit Services Pty Ltd is bound by the terms of the TransAdelaide Port Adelaide Bus Certified Agreement 1998 and by the terms of the TransAdelaide Mile End Bus Certified Agreement 1998 by operation of s 170MB(2) of the Workplace Relations Act 1996 (Cth), but only to the extent that those agreements respectively relate to the part of the business of TransAdelaide which has in fact been transmitted to Torrens Transit Services Pty Ltd

10                  In respect of the other orders sought in the application made on 6 March 2000, I make no order.

Associate:

Dated:              25 July 2001