Federal Court Rejects Stay Application in Stellar Call Centres Case

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA [APPELLANT] [COMPANY] v [NAME], [NAME] [1999] FCA 1236 PRACTICE AND PROCEDURE - application for stay of orders of single Judge pending determination of appeal - whether Court may stay declaratory orders - whether appellant has demonstrated an appropriate case for the exercise of discretion to grant stay. Federal Court Rules O 52, r 17(1) [NAME] [COMPANY] v [NAME] (1994) 54 FCR 342, followed [COMPANY] v [NAME] (1996) 67 FCR 65, followed [APPELLANT] v [NAME], [NAME] & ORS N978 of 1999 [NAME] J 7 SEPTEMBER 1999 [APPELLANT]

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N978 of 1999

On appeal from a judgment of a single Judge

of the Federal Court of Australia

[APPELLANT]: [APPELLANT]

Appellant

AND: [NAME], [NAME]

[APPELLANT]

THE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA

[APPELLANT] OF [APPELLANT]: 7 SEPTEMBER 1999

[APPELLANT]

THE COURT ORDERS THAT:

The motion be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N978 of 1999

On appeal from a judgment of a single Judge

of the Federal Court of Australia

[APPELLANT]

Appellant

AND: [NAME], [NAME]

[APPELLANT] [APPELLANT] [APPELLANT] [APPELLANT]

[APPELLANT]

JUDGE: [NAME] J

DATE: 7 SEPTEMBER 1999

PLACE: [APPELLANT] FOR

JUDGMENT 1 On Friday, 3 September 1999, Wilcox J gave judgment in two proceedings in this Court, in each of which the sole [APPELLANT] was [APPELLANT] ("[APPELLANT]"). In proceeding N241 of 1999, the applicants were [NAME], [NAME] ("the [NAME]") and three individuals, [APPELLANT] and [APPELLANT]. The first two of those individuals were organisers for the [NAME], while the third was its National [NAME]. In proceeding N676 of 1999, the sole applicant was the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia ("the CEPU"). 2 In par 1 of his reasons for judgment ([1999] FCA 1224), Wilcox J identified the single question raised by each proceeding as being, "…whether awards and certified agreements binding [COMPANY] ('[NAME]') in respect of its employees who take customer calls at [NAME]-operated call centres apply to the [APPELLANT], a company contracted to operate a call centre at which its employees also take [NAME] customer calls." 3 His Honour then continued, "The answer to the question depends upon whether it may properly be said that the company that contracted to operate the 'outsourced' call centre is a 'successor, assignee or transmittee' of part of [NAME]'s business within the meaning of s149(1)(d) and/or s170MB(1) of the Workplace Relations Act 1996 [(Cth) ('the Act')]". 4 His Honour ultimately concluded that [APPELLANT] was a "successor, assignee or transmittee" of part of [NAME]'s business within the meaning of both par 149(1)(d) and subs 170MB(1) of the Act. He therefore answered in the affirmative the question which he had identified as the single question raised by each proceeding and made certain declarations and orders in consequence. 5 In the [NAME] matter, he first declared that, "… in relation to employees of the [APPELLANT], engaged on work required to be done by the [APPELLANT] in the performance of any contract substantially to the effect of the draft contract which is exhibit SM15 herein: (a) the following awards apply: (i) [NAME]/[NAME] 1996 [Print N7759]; and (ii) [COMPANY] of Service Award 1996 [Print Q2734];and (b) the following certified agreements apply: (i) [COMPANY] 1995-97 Enterprise Agreement; (ii) [COMPANY] 1993; and (ii) [NAME] Customer Service Representative Competancy [sic] Board Training and Pay Structure Agreement 1996." 6 He then ordered that, "2. The [APPELLANT] by itself its servants or agents, refrain from contravening s285E of the Workplace Relations Act 1996 by refusing or unduly delaying entry to the premises of the [APPELLANT] at [NAME] by officers and employees of [NAME] entitled to enter those premises under s285C of the said Act.

3. Within 28 days the [APPELLANT] pay a penalty of $2,000.

4. Under s356 of the Act, one half the amount of the penalty be paid to [NAME]." 7 In the CEPU matter, the only remedy which his Honour granted was a declaration substantially similar to that which he had granted in the [NAME] matter, but substituting for the awards referred to in the [NAME] matter certain awards to which the CEPU, rather than the [NAME], was a party. 8 Yesterday afternoon, Monday, 6 September 1999, having appealed from the judgments of Wilcox J in both matters, [APPELLANT] moved before me for orders that: "1. The orders made by Justice Wilcox on 3 September 1999 be stayed until further [APPELLANT] of the Court.

2. The [NAME] [that is, the [NAME] and the CEPU], by themselves or their officers or employees, refrain from entering or attempting to enter the premises of the Applicant [that is, [APPELLANT]] at [NAME] [Queensland] until further [APPELLANT] of the Court." 9 It was submitted to me that the source of the Court's power to make both of the orders which I have just set out was O 52, subr 17(1), of the Federal Court Rules, which provides, "An appeal to the Court shall not— (a) operate as a stay of execution or of proceedings under the judgment appealed from … ... except so far as … a Judge … may direct." 10 I do not presently see how the second [APPELLANT] sought falls within O 52, subr 17(1), but nothing much appears to me to turn on that. If the first [APPELLANT] sought were in substance made, then, to the extent to which any right of entry by or on behalf of the [NAME] to [APPELLANT]'s premises depended upon [APPELLANT]'s being bound by the awards and agreements referred to in the declarations made by [NAME], that right of entry would automatically go into suspension on the making of the first [APPELLANT]. Then, if the [NAME] had no right of entry otherwise to its premises, [APPELLANT] could simply rely on its common law ability to refuse them entry if they should seek it. 11 I turn then to the issues raised by the first [APPELLANT] sought by [APPELLANT]. 12 That [APPELLANT] contemplates a stay of the "orders" made by Wilcox J. Although, as appeared during argument, [APPELLANT] had intended to encompass by its use of the word "orders", not only the coercive orders made by Wilcox J in the [NAME] matter, but also the declaratory orders made by him in both the [NAME] and the CEPU matters, I, as a matter of comity, act upon the view expressed by [NAME] in [NAME] [COMPANY] v [NAME] (1994) 54 FCR 342, and followed subsequently in this Court, to the effect that I have no power under provisions like O 52, subr 17(1), to stay declaratory orders. I drew that expression of view to the attention of the parties during argument, but received no submission on behalf of [APPELLANT] that it was clearly wrong, acceptance of which submission would alone have persuaded me not to follow it. Rather, [APPELLANT] appeared to accept its correctness, but relied at the same time on [NAME]'s statement in the case (at 347) that, "[T]he court or a judge might, in an appropriate case, stay the exercise of the rights which might be declared to exist, pending an appeal which might have the result of the declaration being set aside". Reliance was placed on that statement in support of an argument that, in so far as rights flowed to the [NAME] from the awards and agreements the subject of the declaratory orders made by Wilcox J, I could stay the exercise of those rights as against [APPELLANT]. I accept that that argument is correct. 13 There was no dispute [APPELLANT] the parties that I was bound in the approach which I should take to an invocation of the power conferred upon me by O 52, subr 17(1), by the decision of a [ADDRESS] of this Court in [COMPANY] v [NAME] (1996) 67 FCR 65 (Burchett, Heerey and Whitlam JJ). In that case, [NAME] J, for the Court, after setting out the provision, said (at 66), "The language of that rule suggests no limitation upon a broad discretion inhering in the Court. Several judges of the Court, most recently [NAME] in [NAME] [COMPANY] (No 3) (1996) 65 FCR 66 have followed the decision of the Court of Appeal of New South Wales in [NAME] [COMPANY] (Receivers Appointed) (1985) 2 NSWLR 685, where, at 694, that Court said it was 'sufficient that the applicant for the stay demonstrates a reason or an appropriate case to warrant the exercise of discretion in his favour'. [ADDRESS] of Appeal also referred with approval to a statement of [NAME] in [COMPANY] (In liq) (unreported, Court of Appeal, NSW, 15 December 1976) where, with the concurrence of the other members of the Court, [NAME] said: 'Where an application is made for a stay of proceedings, it is necessary that the applicant demonstrate an appropriate case. Prima facie, a successful party is entitled to the benefit of the judgment obtained by him and is entitled to commence with the presumption that the judgment is correct. These are not matters of rigid principle and a court asked to grant a stay will consider each case upon its merits, but where an applicant for a stay has not demonstrated an appropriate case but has left the situation in the state of speculation or of mere argument, weight must be given to the fact that the judgment below has been in favour of the other party.'" 14 The question for my consideration in the present matter may therefore be restated as being whether [APPELLANT] has demonstrated an appropriate case for the exercise of the discretionary power conferred upon me by O 52, subr 17(1). If it has, I ought to exercise that power by staying the coercive orders made by [APPELLANT] J in the [NAME] matter and by staying as against [APPELLANT] the exercise of any rights which flowed to the [NAME] from the awards and agreements the subject of the declaratory orders made by [APPELLANT]. If, on the other hand, [APPELLANT] has not demonstrated an appropriate case for the exercise of the discretionary power conferred upon me by O 52, subr 17(1), but has left the situation in a state of speculation or mere argument, then I should not exercise that power, giving weight to the fact that, prima facie, the [NAME] are entitled to the benefit of the judgment of Wilcox J and to the presumption that that judgment was correct. 15 [APPELLANT] put forward before me a number of matters which, it submitted, demonstrated that the present was an appropriate case for the grant of a stay, but, before dealing with those matters, I should record that it was submitted by neither side before me that its prospects for success on [APPELLANT]'s appeal were so substantial that those prospects should influence my decision on the present application. In effect, both sides accepted that I should not be influenced in deciding whether [APPELLANT] had demonstrated an appropriate case for the grant of a stay by my assessment of the likely outcome of [APPELLANT]'s appeal. 16 The argument put forward by [APPELLANT], in substance, amounted to: first, identifying certain steps which, on the basis that it was bound by the various awards and agreements referred to in Wilcox J's declaratory orders, it would be obliged to take in the period pending the hearing and determination of its appeal; secondly, asserting the onerous nature of those steps; thirdly, pointing out what is obvious, namely, that if it were to succeed on its appeal, those steps would ultimately be seen to have been unnecessary; fourthly, asserting that those steps "may need to be reversed" if it were successful on its appeal, a process which itself was asserted would be onerous; and, fifthly, asserting that the [NAME] would suffer no hardship if a stay were granted, "as it will simply maintain the status quo which has existed since the Applicant commenced operations in [NAME] 8 months ago". 17 As to the steps needed to be taken pending the hearing and determination of its appeal, it was said that [APPELLANT] "would need to immediately review and change (to an unknown degree) its employees' current terms and conditions" to ensure compliance with the various awards and agreements referred to in Wilcox J's declaratory orders; it would also need to "calculate … any liability for underpayment back to December 1998 and make those payments to employees". 18 As to the steps which "might" need to be taken following a successful appeal, it was said that, "[r]ecovering payments made to employees would be impracticable and reverting to the current terms and conditions would be disruptive to the employees and detrimental to the Applicant's business". 19 I have not been persuaded by the matters relied upon by [APPELLANT] to which I have referred above that [APPELLANT] has demonstrated that the present is an appropriate case for a stay. 20 First, as to the allegedly onerous nature of the steps which would need to be taken by [APPELLANT] in the period pending the hearing and determination of its appeal, it would, I consider, have been possible for [APPELLANT] to identify with some particularity for the purpose of the present stay application the differences [APPELLANT] its employees' "current terms and conditions" and those obtaining under the relevant awards and agreements, in [APPELLANT] to demonstrate to the Court the onerousness involved in changing those terms and conditions; that, however, it chose not to do, relying instead on a bald assertion of onerousness. In that respect, I note that it is plain that [APPELLANT] has been aware for many months now of the [NAME]' contention that the awards and agreements are applicable to its employees and has had ample time in which to perform the exercise to which I have just referred. To apply the language of [NAME] which I have quoted above to this particular aspect of the matter, [APPELLANT] "has left the situation in the state of speculation or of mere argument", rather than demonstrating the appropriateness of the case for a stay. 21 I take a similar attitude to [APPELLANT]'s assertion of adverse consequences to it of reversing, after a successful appeal, any steps taken before such success, although here the speculative character of [APPELLANT]'s assertion of adverse consequences is heightened by the fact that has apparently not yet, in any event, formed a firm intention to take such reversing steps if it should succeed in its appeal. 22 As to the submission that the [NAME] would suffer no hardship if a stay were granted, "as it will simply maintain the status quo which has existed since the Applicant commenced operations in [NAME] 8 months ago", that submission, as was conceded by [APPELLANT] during oral argument, although one which could be appropriate in a case in which there had not yet been a decision on the merits of the dispute [APPELLANT] the parties, was not appropriate in a case, like the present, in which there had been such a decision. 23 However, a further "no hardship" submission was developed by [APPELLANT] in the course of its oral submissions in chief. That submission related, not so much to an absence of any union hardship, but to an absence of hardship to [APPELLANT]'s employees, if a stay were granted. The argument, as I understood it, was that those employees would suffer no hardship if a stay were granted, because, if [APPELLANT]'s appeal were to fail, its employees could then obtain, retrospectively as well as prospectively, any benefits to which they were entitled pursuant to the relevant awards and agreements. 24 However, that argument was premised on the notion that the only benefits to which [APPELLANT]'s employees were entitled under the relevant awards and agreements were monetary ones. It ignored the existence of any non-monetary benefits under those awards and agreements which were, of their nature, incapable of retrospective enjoyment by those employees. In that respect, my attention was particularly drawn by the [NAME] to the existence of provisions in the [COMPANY] 1995/97 Enterprise Agreement (which was one of the agreements the subject of declaratory orders in both proceedings) relating to a dispute avoidance/resolution process. That process, which was expressly said to apply to individual, as well as collective, grievances, involved consultation and negotiation [APPELLANT] union and employer. It was submitted by the [NAME] that the benefit of that process could not be enjoyed retrospectively by a [APPELLANT] employee if, for instance, that employee had been dismissed during the pendency of the appeal without that process having been undergone. 25 In response to the [NAME]' submission to which I have just referred, [APPELLANT] offered to the Court, as the "price" of the stay which it sought, an undertaking that it would give to the [NAME] fourteen days' notice of its intention to give to any of its employees notice of termination of that employee's employment. 26 However, that offer, as was rightly pointed out by the [NAME], did not cover the range of situations to which the dispute avoidance/resolution process was applicable and, speaking for myself, I have difficulty in seeing how the undertaking was an adequate substitute for the process, even in the limited area of dismissal on notice. 27 I should also point out here that the reference in [APPELLANT]'s original "no hardship" submission to its having commenced operations in [NAME] eight months earlier did cause me to raise, during oral argument by the [NAME], the question of the length of time which the [NAME] had taken after commencement of those operations before commencing proceedings in this Court. I did so because of a doubt in my mind as to whether the [NAME] could legitimately assert hardship now, if a stay were granted, if they had unduly delayed in commencing the proceedings which were ultimately determined by [NAME] J. 28 In response to my question, the [NAME] asserted that, of the four month time [APPELLANT] the commencement of [APPELLANT]'s operations in [NAME] and the commencement of proceedings in this Court, the first two months had involved the [NAME]' mistaken belief that [APPELLANT] would be operating in [NAME] for two months only and the second two months had involved unsuccessful attempts to resolve the matter in the [NAME] Commission. 29 In reply, [APPELLANT] fairly conceded that it could not assert that, during the first two months of its operations, the [NAME] had been aware that it would be operating in [NAME] beyond that time. It also acknowledged the existence of proceedings in the [NAME] Commission during the second two months. In those circumstances, I am not prepared to infer anything adverse to the [NAME] on the present application by reason of [APPELLANT]'s operating in [NAME] for four months before the commencement of the [NAME]' proceedings. 30 Finally, I should record two further facts: first, at the time when I began to hear [APPELLANT]'s stay application yesterday afternoon, there was present at its premises, pursuant to s 285C of the Act, an officer of the [NAME], who had apparently entered those premises at 10 am and intended to leave at 2.30 pm; and, secondly, yesterday, both [NAME] gave notice to [APPELLANT] of an intention that there be exercised later today rights conferred by s 285B of the Act. 31 It was not asserted in the affidavit in support of [APPELLANT]'s application that compliance by it with either s 285B or s 285C of the Act would give rise to any particular hardship on its part, nor was there any other evidence to that effect. There was a clear reference in the affidavit in support to s 285C (although not to s 285B), but all that was asserted was that, if [APPELLANT]'s appeal were to succeed, then the exercise on behalf of the [NAME] of the rights conferred by that section would be seen in retrospect to have been unjustified. During the course of oral argument, it was submitted, in effect, by [APPELLANT] that the exercise as against [APPELLANT] of the rights conferred by those sections must necessarily impose onerous obligations on [APPELLANT], which it should not be required to fulfil during the pendency of its appeal. I do not accept that submission. I do not consider that the mere exercise or potential exercise on behalf of the [NAME] as against [APPELLANT] of the rights conferred by those sections would inevitably make the present case an appropriate one for a stay, especially having regard to such provisions in the Act as subss 285A(3) and 285E(1). 32 In all the circumstances, I dismiss [APPELLANT]'s motion. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the [NAME] [NAME].

Associate: Dated: 10 September 1999

Counsel for the Appellant: [redacted] [NAME]: [APPELLANT] Counsel for the Respondents: [redacted] [NAME]: [NAME] of Hearing: 6 September 1999 Date of Judgment: 7 September 1999