FEDERAL COURT OF AUSTRALIA

Tristar Steering & Suspension Australia Ltd v Industrial Relations Commission of NSW [2007] FCA 348

ADMINISTRATIVE LAW – balance of convenience where interruption to non-party – whether 146(1)(d) of the Industrial Relations Act 1996 (NSW) rendered invalid by s 16(1) of the Workplace Relations Act 1996 (Cth) – whether obligations binding on employer or employees qua employer and employee as defined in s 16(1) of Workplace Relations Act 1996 (Cth) – whether s 164(1) of Industrial Relations Act 1996 (NSW) prescribes industrial rights and obligations of corporations and employees  

Workplace Relations Act 1996 (Cth) s 16(1)

Industrial Relations Act 1996 (NSW) ss 146(1)(d), 164(1) 

Re Cortaus Limited (in liq); Sheahan v Joye & Ors (No. 2) (1996) 20 ACSR 576distinguished

Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining & Energy Union (2000) 203 CLR 346 cited 

TRISTAR STEERING AND SUSPENSION AUSTRALIA LIMITED v INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES AND NSW MINISTER FOR INDUSTRIAL RELATIONS

NSD 354 OF 2007

EDMONDS J

9 MARCH 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The claim for interlocutory relief be refused.

2.                  Costs of the motion be reserved.

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

REASONS FOR JUDGMENT

1                     On 9 February 2007, the New South Wales Minister for Industrial Relations (‘the Minister’) referred to the Industrial Relations Commission of New South Wales (‘the Commissioner’), pursuant to s 146(1)(d) of the Industrial Relations Act 1996 (NSW) (‘the IR Act’), a reference in the following terms:

‘Pursuant to s 146(1)(d) of the Industrial Relations Act 1996 the Minister for Industrial Relations hereby refers to the Industrial Relations Commission of New South Wales for inquiry and report to the Minister on:

(1)       The facts and circumstances, including the historical and background facts and circumstances relating to the availability of work or the continuing availability of work at the operation of Tristar Steering and Suspension Australia Ltd at Carrington Road, Marrickville with regard to, but not limiting the generality of the foregoing, the current dispute between the employees and unions at that site, and the employer or employers operating the site, concerning redundancy or termination pay.

(2)       The availability and adequacy of remedies under Commonwealth and NSW laws, including but not limited to determination of entitlements and dispute resolution, where there is an issue relating to the availability of work or the continuing availability of work, or redundancy or termination pay, at the workplace.

(3)       Recommendations as to utilisation of or changes to Commonwealth and NSW laws, including removing any obstacles, jurisdictional or otherwise, where there is an issue relating to the availability of work or the continuing availability of work, or redundancy or termination pay, at the workplace.’  

2                     At an initial directions hearing, Tristar Steering and Suspension Australia Limited (‘Tristar’) gave notice that it wished to make submissions before any further hearings of the Inquiry, to the following effect: 

1.                  That the Commission had no jurisdiction to conduct the Inquiry, as a result of s 16(1) of the Workplace Relations Act 1996 (Cth) (‘the WPR Act’). 

2.                  Alternatively, that the Inquiry should be adjourned until the determination of proceedings against Tristar, recently commenced in this Court by the Office of Workplace Services (‘the OWS’). 

3                     The Commission acceded to Tristar’s application that it would hear these submissions prior to any further hearings of the Inquiry.  The written submissions filed on behalf of Tristar identify the following orders sought by it: 

1.                  An order that the Commission decline to inquire into and report on the first term of reference, on the basis that it does not have jurisdiction to do so. 

2.                  In the event that the Commission interprets the second and third terms of reference as to require the Commission to inquire into any aspects of the relationship between Tristar and its employees, an order that the Commission decline to inquire into and report on the second and third terms of reference on the basis that it does not have jurisdiction to do so. 

3.                  An order that the Commission stay the inquiry into the first term of reference until the determination of proceedings commenced by the OWS against Tristar, in this Court, in matter No. NSD 232 of 2007.

4                     In a decision handed down yesterday, [2007] NSWIRComm 50, the Commission rejected Tristar’s application for the first and second orders, which were referred to as the jurisdictional application, for the reasons set out in [25] to [76] of its decision, and refused the third order, that is, the stay application, for the reasons set out in [81] to [88] of that decision.

5                     At the conclusion of its decision, the Commission indicated that the Inquiry’s hearings would proceed on the hearing dates previously fixed, commencing Monday, 12 March 2007.  There was evidence that, at or about the time the Commission handed down its decision, counsel assisting the Inquiry indicated that the issue of summons to give evidence to some employees would be sought today, Friday, 9 March 2007.

6                     Late yesterday afternoon, I granted Tristar leave to file in Court an application seeking final and interlocutory relief.  The interlocutory relief sought was claimed in the alternative as follows: 

1.                  A stay of the Inquiry by the Commission pending the determination of the application. 

2.                  In the alternative, a stay of the Inquiry by the Commission into events occurring on or after 26 March 2006, pending the determination of the application. 

3.                  In the further alternative, an order restraining the Commission from issuing any summons to produce documents to Tristar and/or summons to give evidence to directors, officers, employees and/or agents of Tristar.

7                     In the limited period of time I have had to read and consider the Commission’s decision, and hear Tristar’s Senior Counsel’s submissions as to the arguable errors in the Commission’s process of reasoning, I am not persuaded that the Commission’s decision on both the jurisdictional application and the stay application is wrong.  Moreover, there is no issue that the Commission’s report to the Minister cannot affect the legal rights and obligations of Tristar.  The only manner in which Tristar has asserted that the Inquiry may, in any way, affect its rights and obligations, and those of its employees, is through the exercise of the Commission’s powers under s 164(1) of the IR Act to compel the attendance of witnesses and the production of documents. 

8                     It follows, in my view, that the balance of convenience favours the conclusion that I should deny interlocutory relief in terms of that alternatively sought in paras 1 and 2 of Tristar’s application, namely, a stay of the Inquiry.  This leaves the second alternative claim for relief, namely, restraining the Commission from issuing process for the provision or giving of evidence under compulsion. 

9                     Senior Counsel for the Minister submitted that, first, even if s 164(1) of the IR Act is invalid by reason of s 16(1) of the WPR Act, that did not render para 146(1)(d) of the IR Act invalid so as to prevent the continuation of the Inquiry.  Second, he submitted that the use of the Commission’s powers to summons witnesses would not cause obligations to be binding upon Tristar or its employees, respectively qua employer and employee as defined in s 16(1) of the WPR Act.  And third, he submitted that, moreover, the obligations that may be imposed under s 164(1) of the IR Act cannot be said to prescribe the industrial rights and obligations of corporations and their employees and the means by which they are to conduct their industrial relations, referring me to what had been said by Gaudron J in the High Court in Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining & Energy Union (2000) 203 CLR 346 at 375 [84], [85].

10                  Senior Counsel for Tristar relied on the decision of this Court (Branson J) in the case of Re Cortaus Limited (in liq); Sheahan v Joye & Ors (No. 2) (1996) 20 ACSR 576, in support of his submission that the balance of convenience favoured the grant of such relief.  In that case, each of the first, fifth, sixth and seventh respondents had been issued with a summons pursuant to s 596B of the Corporations Law 2001 (Cth) for examination relating to the affairs of a company in liquidation, Cortaus Limited.  It was not in dispute that a final determination of the issues heard by a Full Court of this Court earlier in Southern Steel Supplies Pty Ltd & Anor v Favelle Favco Holdings Limited might result in a determination that this Court lacked jurisdiction to issue summons pursuant to s 596B of the Corporations Law.  Her Honour also noted that such final determination might also result in termination, to use her expression, ‘a neutral term’, of the appointment of Mr Sheahan as liquidator of Cortaus Limited. 

11                  She observed that if Mr Sheahan’s appointment as liquidator of Cortaus Limited were to be terminated, he would lose his qualification as an eligible applicant for the issue of a summons within the meaning of s 596B of the Corporations Law.  In response to a submission on behalf of these respondents that the principal prejudice to each was identified as that of being required to travel to Adelaide and there submit to questioning with respect to matters about which they could otherwise not be required to speak, and that the additional prejudice which, at least, some of the respondents would be likely to suffer was identified as interference with their respective professional practices and a measure of loss of income, her Honour responded at 578 in the following terms:

‘If the respondents are required to attend for examination relating to Cortaus, and are so examined, and it is subsequently determined that this Court had no jurisdiction to issue the summonses respectively served upon them, their civil liberty to attend to their ordinary affairs without interference, and to keep to themselves information unless and until they choose to disclose it, will have been seriously interfered with.’

12                  In my view, that case was very different from the situation here.  The persons summonsed were all parties to the inter-partes proceedings.  They were required for examination.  Here Tristar, a company, is merely required to produce documents, albeit under compulsion.  Tristar cannot claim balance of convenience for the interruption caused to the daily lives of its employees, be they directors or members of the union or unions to which their unionised employees belong.  It was different in Cortaus where the summonsed parties were parties to the proceeding itself.

13                  I am not persuaded in all the circumstances that the interlocutory relief in the form of the second alternative should be granted when to do so would only impede the ability of the Commission to efficiently conduct the Inquiry according to its terms of reference. 

14                  The claim for interlocutory relief is refused. 

15                  Costs of the motion are reserved.

Associate:

Dated:         16 March 2007