Stephen Metcalfe v State Transit Authority of NSW [2000] NSWIRComm 212

Industrial Relations Commission of New South Wales in Court Session

CITATION : Stephen Metcalfe v State Transit Authority of NSW [2000] NSWIRComm 212 Applicant PARTIES : Stephen Metcalfe Respondent State Transit Authority of NSW FILE NUMBER: IRC2343 of 1998 CORAM: Kavanagh J CATCHWORDS : Application under s106 of the Industrial Relations Act 1996 as to "unfairness" in the performance of a contract - the applicant's conditions of employment covered by a Federal Award and a State Act - applicant challenges the procedures for the conduct of a fair review of his termination - allegation statutory procedures breached - Notice of Motion as to jurisdiction of court to hear application because of inconsistency between State Law (Industrial Relations Act 1996) and Federal Law (NSW Government Bus Traffic Employees' Award) - the effect of a further State Act namely, the Transport Administration Act 1988 in the contract of employment - Held there is a comprehensive and exhaustive Disciplinary Procedure enunciated through the Federal Award and the relevant State Act. Any Order under s106 of the Industrial Relations Act 1996 would alter, impair and detract from the comprehensive code for Disciplinary Procedures to be applied to NSW Bus Drivers - Industrial Relations Commission of NSW has no jurisdiction to give orders under s106 of the Act in the circumstances. Industrial Relations Act 1996 LEGISLATION CITED : Industrial Relations Act 1988 (Cth) Workplace Relations Act 1996 (Cth) Transport Administration Act 1988 Bell and Berg v Macquarie Bank Ltd & Anor (1999) 87 IR 126 Colvin v Bradley Bros Pty Ltd (1943) 68 CLR 151 CASES CITED : Metal Trades Industry Association v Amalgamated Metal Workers and Shipwrights Union (1983) 152 CLR 632 Ex Parte v McLean (1930) 43 CLR 472 Walton v Gardiner (1993) 177 CLR 378 Commonwealth of Australia v The State of Western Australia (1999) 160 ALR 638 HEARING DATES: 08/02/1999; 07/12/2000; 07/13/2000; 07/14/2000; 08/18/2000; 11/03/2000 DATE OF JUDGMENT: 12/15/2000

APPLICANT Peter Cook of counsel Mr B. Hurley, Solicitor B. Hurley & Associates LEGAL REPRESENTATIVES: RESPONDENT John Fernon of counsel Solicitors Mr M. Sullivan Michael Harmer & Associates

JUDGMENT: - 37 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J

Date: 15 December 2000

IRC2343 of 1998 STEPHEN METCALFE v STATE TRANSIT AUTHORITY OF NEW SOUTH WALES Application under s106 of the Industrial Relations Act 1996 JUDGMENT

1 This is an application under the provisions of s106 of the Industrial Relations Act 1996 ("the Industrial Relations Act") for orders declaring void or varied, in whole or in part, the contract of employment between the applicant and the respondent alleging the contract, as to the circumstances in and terms upon which the applicant's termination was effected, was unfair, harsh or unconscionable or contrary to the public interest. 2 The respondent, by notice of motion, challenged the jurisdiction under s106 of the Industrial Relations Act of the NSW Industrial Relations Commission in Court Session to hear the application alleging the conditions of the applicant's employment were set by a Federal Award (read a Federal Act) and as such, where there is an "inconsistency" between a State and Federal law, the Federal law displaces the State jurisdiction (see MTIA v AMWSU (1983) 152 CLR 632 at 648). 3 The first issue to be determined was the appropriate time for the Notice of Motion to be considered. As was held in Bell and Berg v Macquarie Bank Ltd & Anor (1999) 87 IR 126 at 127, by the Full Bench: The issue presented was concerned essentially with the timing of the debate concerning jurisdiction. His Honour commenced consideration of this issue by reference to a submission made on behalf of the respondents that "the usual course should be followed, namely that the question of jurisdiction should be argued as a threshold matter", senior counsel relying in particular on observations made by the Full Industrial Court (Fisher CJ, Hungerford and Peterson JJ) in Nagle (t/as W.D. & J.L. Nagle & Sons) v Tilburg (1993) 51 IR 8. Those observations referred to the approach adopted by the New South Wales Court of Appeal in Majik Markets Pty. Limited v Brake and Service Centre Drummoyne Pty Ltd (1991) 28 NSWLR 443; 39 IR 169. The Full Court then made this statement(at 11): We would draw from those authorities the proposition that whilst it is desirable for a case to be determined at an early stage it is only open to do so at the appropriate stage of the proceedings , that is, where the facts, either established by evidence or plainly agreed in terms, enable the Court to determine what the contract or arrangement is or, at least, the parameters of the contract or arrangement. In other words, it seems to us, unless the facts are sufficiently established to enable the Court to be satisfied it has the necessary material to reach a clear and final decision on the question then the appropriate stage has not been reached for such a determination to be made. In General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 Barwick CJ held that the jurisdiction to terminate an action summarily for want of a cause of action in the plaintiff was to be sparingly employed and ought not to be used save where the lack of the cause of action was clearly demonstrated." (emphasis added) 4 The court determined to hear the Notice of Motion when it could makes appropriate findings of fact sufficient to allow consideration of the motion.

The Facts 5 The issues relate to an incident on 5 February 1993. The applicant, a bus driver employed by the State Transit Authority of NSW (the STA) commenced his normal work shift departing from Ryde bus depot at 6.55am proceeding past Top Ryde and to a bus stop on Lane Cove Road at the corner of Price Street. His bus arrived at this bus stop at approximately 7.05am. A number of passengers boarded the bus, then a further passenger boarded and proceeded to walk to the back of the bus. The bus driver called to this passenger: What sort of ticket do you want? The passenger replied with words to the effect: I don't have any money. I've been out all night and I'm going home. The bus driver then called to the passenger: I'm sorry, sir, if you don't have any money you have to walk. The passenger then informed the bus driver: I'm going home, I've been out drinking all night. The bus driver repeated the warning: If you don't have any money you'll have to walk.

As the passenger was ignoring his comments, the applicant pressed the "send" button on the bus radio which calls for assistance. Evidence revealed, once the "send" button is pressed the driver is placed in a queue and must wait until his call is answered. There is a further emergency button available to a driver but it was not pressed by the applicant at this stage. 6 The passenger then began approaching other passengers on the bus leaning over them and saying words to the effect: Give me some money for the bus fare. I need some money. 7 The applicant then left his driver's seat and approached the passenger. He noted the passenger was of a very dirty appearance and unshaven. He further smelt alcohol on him. The applicant then said to the passenger: Please remove yourself from the bus.

The passenger replied: I'm not going. 8 The bus had been stationary all this time. Once again the passenger was asked to remove himself from the bus and the passenger replied with words in the following tone: I'm not going fucking anywhere. 9 At this point the applicant determined he had to remove the passenger. Before doing so he announced loudly to other passengers on the bus: I'm about to use a reasonable amount of force to remove this person from the bus. 10 The applicant understood he was required to say the above under the procedures he had been given in instruction, both related to how to handle such a situation and his obligation to remove from the bus a passenger who did not pay the fare. 11 As the applicant reached out to take the passenger by the elbow, the passenger stood up and punched the applicant in the face. The applicant then applied a headlock to the passenger using his left arm and attempted to move the passenger to the front of the bus. As he did this, the passenger bit into the applicant's left forearm which began to bleed profusely. The bite caused great pain and the applicant released the passenger who ran from the bus. The applicant pursued the passenger having in mind to call the police and have the passenger arrested for assault. He tackled the passenger and brought him to the ground. As he did this, the passenger threw another punch at him and then ran away. In the fall the applicant struck his hand and his left hand ring finger was broken. The applicant opines he was also still in great pain from the bite. He returned to the bus and pressed the emergency button calling for an ambulance and the police. There is a tape of this call. 12 A little later the ambulance arrived as did a Mr Michael Riordan, a mechanical foreman from the Ryde Bus Depot. From the evidence I conclude one of the passengers was driven from the site to work by Mr Riordan and that person gave a statement either to Mr Riordan or the police about the incident supporting the outline of events as described by the applicant. 13 The applicant received medical attention for both the broken finger and the bite. The STA provided trauma counselling to the applicant. He was later admitted to St David's Private Hospital for a closed reduction to the broken finger of his left hand under general anaesthetic. He did not return to work as a bus driver because of the following events. 14 On 15 February 1993 the applicant, while still at home recuperating from the effect of his injuries, received a letter from an insurer denying the workers compensation claim he filed for expenses and time off taken because of the injuries suffered arising out of the above events. The applicant went straight to the STA offices to inquire as to the denial of his claim. While at the STA he was handed a Notice of Misconduct. 15 The Notice of Misconduct is relevant. It alleges the applicant had breached: (a) Section number 9 in the SATE (sic) Transit Code of Conduct; or (b) Instruction number 3, 23 in the State Transit Drivers' Instructions; or (c) ... (d) Clause number 39b of the Passenger Transport Regulation 1990.

Particulars of the alleged misconduct as contained in the Notice were as follows: That at approximately 0715 hours 5 February 1993, you initiated unnecessary force against a male passenger in an attempt to physically remove him from a bus for not paying a fare and refusing to leave the bus at your request. 16 The applicant was handed this Notice by Mr Filewood who was the Manager, Ryde Business Unit. Mr Filewood also informed the applicant he had 7 days to reply to the Notice. Mr Filewood in conversation with the applicant revealed there had been no complaint made to the STA and that: I'm acting purely on what you have told me. 17 On 23 February 1993, on the applicant's behalf, a letter was sent to the STA from the applicant's union requesting a full inquiry to be held with an official of the Australian Rail Tram and Bus Industry Union in attendance. The letter was sent by the applicant. The request was on union letterhead and it is relevant to note the applicant was the union delegate at the time. 18 When the applicant handed this letter to Mr Filewood seeking the full inquiry, Mr Filewood said: This letter is not a denial or an explanation. I can't accept it and will carry on with the disciplinary policy. The next step will be some form of punishment. 19 On 2 March 1993 a Disciplinary Meeting (the requested inquiry) was held in the presence of Mr Filewood, Mr J Sinclair, the Operations Manager, Ryde Depot, Mr T. Avery from the Australian Rail Tram and Bus Industry Union and the applicant. 20 The applicant says: At no stage during this meeting was I given any details of what inquiries were made by Mr Filewood, from what source any information was received and no indication was given as to whether any information received by Mr Filewood was contrary to my version of events.

At par 45: At the conclusion of the meeting Mr Filewood said words to the effect, 'I have found your misconduct proved.' 21 At approximately 2 o'clock the same day the applicant, in accordance with STA procedure, was handed a Notice of Punishment. The Notice found breaches of s9 of the State Transit Code of Conduct and Instructions 3 and 23 of the State Transit Drivers' Handbook and cl39B of the Passenger Transport Regulation 1990. It provided details of misconduct as follows: You committed an act of very serious misconduct in that at approximately 7.05 hours 5 February 1993 you initiated force against a male passenger in an attempt to physically remove him from a bus after he had refused to pay a fare or leave the vehicle at your request. As a result of this action both you and the passenger involved sustained injuries.

Punishment: Dismissal effective on 3 March 1993.

You may resign instead of being dismissed. In this case your personnel file will note that you resigned pending dismissal. 22 The statutes and regulations governing the applicant's employment were: (i) the Transport Administration Act 1988 (NSW) (ii) the Transport Administration Act (STA Staff) Regulation 1989 (iii) the Passenger Transport Act 1990 (NSW); and (iv) the Passenger Transport Regulation 1990.

However, the Passenger Transport Act 1990 (NSW) and Regulations were not relevant to the circumstances in these proceedings. 23 The applicant waived his rights under the State Transport Administration Act 1988 for an appeal to the Transport Appeal Board and elected to make an application under s 99 of the Industrial Relations Act 1988 (Cth) to the Australian Industrial Relations Commission ("the AIRC") for reinstatement. There was a hearing in relation to this matter and a finding was entered. The dismissal was found by the AIRC as not unfair in the circumstances. That finding was delivered by Commissioner O'Shea on 29 November 1993. 24 This summons for relief was filed on 7 May 1999 under the provisions of s106. Mention must be made of two further pieces of litigation involving this matter. The applicant was sued for damage by the passenger for an alleged assault. During those proceedings before a Magistrate on 9 September 1993 the evidence of an independent witness to the events, not referred to during the STA's Inquiry nor the AIRC hearing, was mentioned by a solicitor. The applicant was surprised to hear of a witness to the events. He made inquiries of the STA. The witness was found and gave evidence before the Magistrate. The witness supported the applicant's contention that he, the driver, had been assaulted by a punch, a bite and then a further punch. The independent witness, a Mr King, told the Magistrate he had been on the bus and heard the bus driver ask the passenger five or six times to pay the fare or leave the bus. He said the passenger would not leave the bus. 25 The Magistrate found Mr King a reliable and independent witness and held the passenger should have left the bus. He found the passenger threw the first punch and it was the bus driver who was, in fact, assaulted. The Magistrate was also satisfied that the passenger bit the driver's arm. He found the applicant was assaulted by the passenger. He further found the actions of the bus driver were in self-defence. 26 The union then applied to re-open the case before the AIRC. The AIRC held on 29 November 1993 [Print E7129 [NO33]] (at 2-3): It follows, in my view, that it would require some extraordinary development or some conclusion that a grave miscarriage of justice had occurred to warrant the Union's claims for reinstatement to be considered.

My examination of the transcript of the evidence and submissions in March does not suggest that further consideration of the outcome of proceedings in the Ryde Local Court is likely to affect my assessment of the balance of the evidence as to whether the STA, at the time that it dismissed the bus operator, had reasonable grounds to do so.

It follows, in my view, that no practical purpose would be served by the Commission acceding to the Union's application, in the light of the earlier undertaking that has been given. The application is refused. 27 The applicant relied upon the following grounds as to an unfairness in his employment contract under s106 of the Industrial Relations Act: 1. The applicant had disciplinary proceedings determined against him by the same person who initiated those disciplinary proceedings and; 2. The applicant was not given access to the materials upon which the respondent (sic) relied in determining to dismiss the applicant. 28 The applicant submits the STA failed in the conduct of its inquiry to afford him "natural justice" by not telling him of the existence of an independent witness. He further alleges the STA failed to comply with its own Disciplinary Procedures. As to the unfairness related to its procedures it is the applicant's contention that: 1. The manager, Mr Filewood, occupied both the position of complainant and arbitrator on the merits of the complaint. 2. The manager, Mr Filewood, pre-determined the complaint before hearing from the bus operator. 3. The manager, Mr Filewood had regard to matters detrimental to the bus operator which were not included in the notice of misconduct and the State Transit Authority was aware of the existence of an independent witness to the events giving rise to the notice of misconduct and did not inform the bus operator of such. 29 It is agreed between the parties, further confirmed by Mr Filewood in evidence, that he initiated the complaint notice, he conducted the disciplinary meeting and he concluded that "Mr Metcalfe's actions warranted dismissal." In effect Mr Filewood was judge and jury in his own cause. The applicant also alleges Mr Filewood pre-determined the issue. Mr Filewood in his affidavit states: After reviewing the materials ... I formed the opinion Mr Metcalfe had acted in breach of his responsibilities as a driver.

It was after having formed this opinion that Mr Filewood issued the Notice of Misconduct to the applicant and then conducted the disciplinary meeting following which he then dismissed the applicant. In evidence however Mr Filewood sought to distance himself from this statement in his affidavit. 30 The Notice of Misconduct is dated 10 February 1993. It was drafted without Mr Filewood having heard the taped radio call transcript taken contemporaneous to the incident. Mr Filewood, did not issue the Notice until after he had listened to the tape. However he listened to the tape in the context of having "formed the opinion that Mr Metcalfe had acted in breach of his responsibilities as a driver." When asked was that his view before he issued the Notice, he answered: "Yes." 31 The court inquired of Mr Filewood the reason for his affidavit opinion: This was the most serious matter I had encountered in the time I had been employed with the STA. 32 The court finds, taking into account the totality of Mr Filewood's evidence, that it is consistent with all the evidence that Mr Filewood held such an opinion prior to the disciplinary meeting. 33 An examination of the procedures followed by Mr Filewood reveal he included in his consideration matters not referred to in the Notice of Misconduct. The particulars provided in the Notice refer only to the behaviour of the applicant on the bus. Mr Filewood conceded he considered factors beyond the scope of the particulars in the Notice. His evidence perpetually repeated that his approach was "holistic": Q. You agree don't you in this notice there is no mention of any allegation concerning improper conduct by Mr Metcalfe after he got off the bus that day? A. Those words don't refer to matters off the bus specifically, no. . . . Q. When you made that decision in reaching that decision on 2 March you had regard to the whole of the incident did you not? A. Yes I did. ... Q. ... you looked at the whole of the conduct, that's so isn't it? A. I looked at the whole of the incident. ... Q. On any version of events Mr Metcalfe's conduct after he got off the bus contributed not mention his conduct after he got off the bus? to the end result of his dismissal? A. Yes. Q. You also agree the charge that was brought against him set out in the notice of misconduct does A. Yes.

Later in the evidence the court asked Mr Filewood: Q. You used the words 'holistic approach.' You explained that was the circumstance from the moment the gentleman got on the bus to the emergency call button and including the conversation? A. Yes. Q. All of these set of facts are not encompassed in the notice are they? A. No your Honour. 34 The respondent submits that the agreed facts reveal the applicant removed the passenger with reasonable force; crashed tackled the passenger and "beat the shit out of him", a quote from the taped emergency call, all of which is sufficient to find misconduct. The respondent submits Mr Filewood did not pre-determine the issue but rather he formed an opinion on 10 February 1993 which caused him to prepare a Notice of Misconduct which did not issue until after he heard the tape recording of the applicant. Nothing in the tape recording suggested Mr Filewood's first opinion should be altered. Mr Filewood then had the disciplinary interview. Nothing was said in that interview that would cause Mr Filewood's opinion to change from the opinion he had first formed. 35 As to the allegation Mr Filewood had regard to matters not included in the Notice of Misconduct, the respondent submits this complaint is formalistic. They submit the applicant did not complain that he misunderstood the extent of the respondent's charge and even if he did not understand, the decision to terminate his employment was justified by his conduct. 36 As to the submission that Mr Filewood acted as complainant and arbitrator, the respondent simply submits Mr Filewood had no personal interest in the matter nor a vendetta against the applicant. They further submit even if there was a procedural irregularity in Mr Filewood acting as complainant and arbitrator, an independent arbitrator in the AIRC determined not to interfere with the decision. The respondent submits the applicant's complaint of irregularity should be distinguished from an irregularity which occasioned actual unfairness. The respondent submits the applicant's behaviour warrants dismissal. 37 As to the complaint that Mr Filewood pre-determined the issue prior to the meeting the union attended on behalf of the applicant, the respondent relies on Mr Filewood's opinion being founded on the applicant's version alone. 38 The question of the STA's knowledge of the existence of an independent witness becomes quite relevant. The applicant claims the STA withheld from him during their inquiry the knowledge there was an independent witness who had made a statement. Again the court sought to clarify this evidence when the existence of such a witness was not denied by the SRA nor was it put to the applicant that no such witness existed. The applicant revealed after he heard during the assault proceedings against him from a solicitor that there was an independent witness: . . . I went to Ryde, approached the inspector, I can't really remember whether I approached him or the solicitor did, there has been a witness and the solicitor obtained the name and address of the witness from State Transit, obtained it from State Transit and then the witness was called at the hearing at the Ryde Local Court. 39 Mr Filewood in cross examination in these proceedings then admitted he had knowledge of the existence of such a witness before the disciplinary meeting leading to termination but he failed to find the witness after inquiry: Q. Are you sure that the State Transit Authority did not at some stage prior to 2 March when the disciplinary interview took place, are you sure that the Authority did not retain some form of written statement from the passenger called Stephen King? A. I, and the circumstances of which I can't remember, but I became aware that maybe the police had an independent statement. I sent an officer to the police station to see if they could get that information that would have been able to assist me.

. . .

Q. How did you become aware? A. Obviously somebody said to me that somebody had given a statement to the police or Ryde police station or something and I must have said 'Get somebody up there and see if we can get it.' I suspect it was a very casual comment made to me and a statement that really said 'Head off and see what we can find.' 40 The evidence reveals the STA was well aware of the existence of an independent witness to the incident involving the applicant. The question whether such evidence would or should have assisted the applicant is really immaterial. What is relevant is the STA was aware of such evidence and it did not either obtain it for consideration in its own investigation nor inform the applicant of its existence. Further it is curious the applicant was able to obtain the contact number for the witness from the STA. 41 The STA's own rules in relation to Disciplinary Procedures require the manager to: ... fully document any action at each of these stages so the employee's disciplinary history is a full and fair representation of their conduct. 42 From the evidence, Mr Filewood kept no record of the conversations he held with the applicant sufficient to persuade him to lay the charge. Mr Filewood consistently repeated he acted on the applicant's own version of events but he never recorded that version. He kept no record of his search for the independent witness, Mr King, or of any statement taken from Mr King. More importantly, Mr Filewood kept no record of any consideration he gave to the important issues that should have been weighed up in the investigation such as the applicant's allegation that he had been assaulted; the relevance of such an allegation of assault upon whether a charge should be laid against the applicant; or any consideration of the evidence of Mr Riordan who attended at the site. There is no document outlining the steps Mr Filewood took in the investigation or in the considerations and reasonings he entertained before the laying of the charge and finding the charge proven and assessing the punishment. The only document that is available is a summary document of the disciplinary interview, which document does not reveal the considerations Mr Filewood took into account in determining a dismissal was appropriate. 43 Mr Filewood expressed strongly the view that a driver should not use any force against a passenger. However, as Reg 32(3) of the Passenger Transport Regulation 1990 states: A person who fails to comply with a direction under this clause to leave a bus ... may be removed from the bus ... by the driver of the vehicle or by an authorised officer.

44 In the Drivers' Instructions s23 headed "Offences by Customers" it is held: Bus operators must ensure that customers on boarding a bus do not;

(c) Board a bus wearing soiled clothing ... (d) Cause a nuisance or annoyance to customers; or (j) Interfere with the comfort or safety of any other person.

Bus Operators must ask customers to comply with these provisions. If customers do not comply, bus operators may refuse them entry or ask them to leave the bus ...

Amendment of summons 45 The applicant in submissions when evidence was concluded, sought to amend the Summons for Relief in the following manner: 1. An order declaring the contract of employment between the applicant and the respondent void in whole or in part from its commencement on 30 May 1988 or varying it from its commencement on 30 May 1988 to include the following provisions:

(a) That the respondent shall not dismiss the applicant without providing the applicant with each charge upon which the respondent relies. (b) That the respondent shall not dismiss the applicant without providing the applicant with the details of each charge upon which the respondent relies. (c) That the respondent shall not dismiss the applicant by having regard to matters not included within the terms of the charge(s). (d) That the respondent shall not dismiss the applicant without having the charge(s) determined by an officer, committee or board independent of the person bringing the charge(s). (e) That the respondent shall not dismiss the applicant without having the charge(s) determined by an officer, committee or board which had not pre-determined the guilt of the applicant in respect of the charge(s).

2. An order declaring the contract of employment between the applicant and the respondent, or the collateral arrangement contained therein allowing for the dismissal of employees by the respondent void in whole or in part from its commencement on 30 May 1988 or varying it from its commencement on 30 May 1988 to include the following provisions:

(a) That the respondent shall not dismiss the applicant without providing the applicant with each charge upon which the respondent relies. (b) That the respondent shall not dismiss the applicant without providing the applicant with the details of each charge upon which the respondent relies. (c) That the respondent shall not dismiss the applicant by having regard to matters not included within the terms of the charge(s). (d) That is the respondent shall not dismiss the applicant without having the charge(s) determined by an officer, committee or board independent of the person bringing the charge(s). (e) That the respondent shall not dismiss the applicant without having the charge(s) determined by an officer, committee or board which had not predetermined the guilt of the applicant in respect of the charge(s).

3. In the event that the contract of employment between the applicant and the respondent is avoided and/or varied as sought in Claims 1 and 2 above that the applicant be compensated in the sum of $30,000.00.

4. That the respondent pay:

(a) the costs of these proceedings; and (b) interest .

5. For such further or other orders as the Court might consider appropriate.

B. Grounds

1. The applicant had disciplinary proceedings determined against him by the same person who initiated those disciplinary proceedings. 2. The applicant was not given access to the material upon which the respondent relied in determining to dismiss the applicant. 3. The respondent had regard to matters, in deciding to dismiss the applicant, which went beyond those set out in the Notice of Misconduct . 4. The officer who decided to dismiss the applicant on behalf of the respondent pre-determined the matter.

C. The award, agreement or determination by reference to which the claim or any part of it is based:

NSW Government Bus Traffic Employees Award, 1981.

D. Particulars of the manner in which the amounts claimed are calculated:

Net Salary @ time of dismissal: $30,000.00.

The applicant seeks compensation equivalent to 12 months salary of $30,000.00. The applicant also claims interest at rates prescribed by the Court from the dated of his dismissal (3 March 1993) to the present. Alternatively the applicant claims interest from the date of commencement of these proceedings to the present.

(Bold print identifies the amendments sought) 46 The applicant relies on the authority of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146 where in a hearing, evidence had been given concerning relevant facts and an amendment to the initiating process was allowed for the purpose of bringing the pleadings into line with the evidence. 47 The applicant further relies on IR r148 of the Industrial Relations Commission Rules which allow for an amendment "at any stage of the proceedings" of any document in the proceedings it being in the interests of justice to do so. 48 The applicant submits there are a number of legal principles on which it relies upon in support of its application and the court gives leave to amend the summons at this stage in the proceedings. An amendment, the applicant submits, may even be allowed after reasons for judgment have been given, provided the party has not been deprived of an opportunity to adduce evidence on the relevant issues (see Seeley Nominees Pty Limited v LEL AR Initiations (UK) Limited (No 2) (1990) 55 SASR 314 at 315). 49 The applicant submits if there is any doubt about the summons, the following should be relied upon: (a) The matters for consideration by the court are "Issues of process". (b) Both parties agreed "Issues of process" were the matter under consideration. (c) Both parties led evidence and cross-examined witness in respect of: (i) Mr Filewood being both complainant and arbitrator; (ii) Mr Filewood's pre-determination of the issue; (iii) Mr Filewood having regard to matters not included in the notice of misconduct, and (iv) The STA's knowledge of an independent witness. 50 As to the amendment, the respondent was given leave to consider the applicant's proposed amendments. The respondent was also asked by the court to determine, if the amendments were allowed, would it seek to call further evidence. Oral submissions were made on 18 August 2000 and the matter was adjourned to 3 November 2000 to deal with the issue of the amended summons. 51 Each of the amendments are directed to issues which were the subject of extensive examination and cross examination; the transcript does not identify any objection by the respondent, as the evidence proceeded, to be beyond the scope of the pleadings; nor has any claim been made by the respondent that it would be prejudiced by the admission of such evidence, nor was any adjournment requested. The respondent chose to note its objection to the amended summons but put no further submission. 52 The court allows the Amended Summons. I do not believe it causes the respondent any prejudice; it brings the pleadings in line with the evidence and it directs the court to relevant issues.

The Notice of Motion: Jurisdiction and an "Inconsistency" between State and Federal Law 53 The respondent challenges the jurisdiction of the Industrial Relations Commission in Court Session. Where a worker is employed under a Federal Award, and there appears an "inconsistency" between that Award and a State Act (that is, the Industrial Relations Act), provisions of the State Act cannot be applied. An inconsistency may only arise (under s109 of the Australian Constitution) if there is an inconsistency between "a law of a State" and a "Federal law". Section 106 of the Industrial Relations Act is part of a "law of a State". 54 The question arises as to whether the New South Wales Government Bus Traffic Employees' Award ("the Award") is a "Federal law". The Award itself is not a Federal law but, once made, its provisions become Federal law. In Colvin v Bradley Bros Pty Ltd (1943) 68 CLR 151, Williams J said of a Federal Award (at 163): The award is not of course a law of the Commonwealth, ... but once the award is made its provisions become part of the law of the Commonwealth by virtue of the Commonwealth Conciliation and Arbitration Act 1904. Colvin concerned an inconsistency between an order made under a State Act and a Federal Award. The State Order was made pursuant to the Factories and Shops Act , 1962, a law of New South Wales. The Award was made pursuant to the Conciliation and Arbitration Act , 1904, a Federal law. The State Order prohibited the employment of females on milling machines. The Federal Award allowed such work unless a declaration as to the unsuitability of that work had been made by a Board of Reference. No such declaration had been made. An inconsistency arose between the State Order and the Federal Award notwithstanding. 55 The respondent argued its case by reference to the present Act, the Workplace Relations Act 1996. The appeal before the AIRC was conducted in 1993 by reference to the Industrial Relations Act 1988. As to the arguments on the "inconsistency" issue, it is of no consequence that provisions of the Workplace Relations Act 1996 are relied upon as, where relevant, they mirror provisions in the Industrial Relations Act 1988. 56 Consistent with the approach in Colvin, Mason, Brennan and Deane JJ said in Metal Trades Industry Association v Amalgamated Metal Workers' and Shipwrights' Union (1983) 152 CLR 632 ("the MTIA Case") that (at 648): Because it has been thought that an award made pursuant to the Conciliation and Arbitration Act 1904 (Cth), as amended, ("the Act") is not a law of the Commonwealth within the meaning of s109, inconsistency between an award and a State law must be reduced to inconsistency between the State law and the provisions in the Act authorizing the making of the award so as to constitute it an exhaustive and exclusive regulation of the relevant subject matter (T.A. Robinson & Sons Pty Ltd v Haylor (34). In this respect s65 of the Act ... is of paramount importance for it is the expression of the statutory intention that the arbitrator's exercise of power is to operate to the exclusion of any State law.

[Section 152 of the Workplace Relations Act is relevantly identical to s65 of the Act referred to in the passage above.] and Gibbs CJ, Wilson and Dawson JJ observed of the operation of s65 of the Federal Act (cf s152 of the Workplace Relations Act ) that (at 642): The problem (of inconsistency) therefore is to be approached on the basis that the alleged inconsistency is between the Commonwealth Act which authorizes the making of the Awards and the State law, and the solution is to be found in the application of s109 and the well established doctrine of inconsistency derived therefrom. At the heart of the doctrine is the call to take the law or the award with which the State law is alleged to be inconsistent and to discern precisely the matters which it is the intention of the Parliament, or the Commonwealth arbitrator, as the case may be, are to be exhaustively determined thereby. 57 The general legal principle was enunciated in Ex Parte v McLean (1930) 43 CLR 472 (at 483): It (the inconsistency) depends upon the intention of the paramount legislature to express by its enactment completely, exhaustively or exclusively what shall be the law governing the particular conduct or matter to which its attention is directed. 58 The applicant's contract of employment was a general contract effected by a registered Federal award and State legislation in almost similar terms. The State Act under which the applicant was employed was the Transport Administration Act 1988. The applicant's conditions of employment were defined in a Federal Award entitled the New South Wales Government Bus Traffic Employees Award 1981 (the Award) registered in the AIRC. As to termination, Clauses 33 and 29 of this award are relevant. Clause 33 is concerned with arrangements and provides that no employee may be dismissed without being charged. There follows detailed procedures and mechanical provisions concerning the consideration of the charge and the right of appeal against punishment or dismissal. Clause 29 identifies it is a Board of Reference under the award that is empowered to deal with the settlement of disputes on matters arising out of the award. 59 This award has to be read in conjunction with the State Act. The applicant was employed by the State Transit Authority ("the STA"). The STA is constituted pursuant to s20 of the Transport Administration Act 1988. It operates bus services; the Board of STA has the function of determining the policies of the STA; the STA may employ such staff as it requires to exercise such functions; the STA fixes the salary, wages and conditions of employment of its staff in so far as they are not fixed by or under any other Act or law. Part 4 of the Transport Administration (STA) Staff Regulation 1989 is concerned with Disciplinary Proceedings against officers. An officer means an employee of the STA. The STA may dismiss an officer; an officer who is subject to disciplinary proceedings is entitled to be notified in writing of the charge; a formal hearing, however, is not required. Specifically this State Act provides for the nature of procedures and remedies in Disciplinary Proceedings for NSW bus drivers, working under the Federal award. In effect the Federal award is similar and often mirror provisions in the State legislation. These provisions comprehensively encompass this employee's conditions of employment and certainly that related to the Disciplinary Procedures to be applied to employees of the STA. 60 The court finds the history of this matter becomes relevant. It is not disputed between the parties that after the applicant's dismissal proceedings were commenced in the AIRC where the applicant challenged the procedures the STA adopted to bring about his termination of employment. Originally, the proceedings were not concerned with reinstatement but were later expanded to incorporate a claim for reinstatement and/or compensation. The proceedings were brought on the basis the AIRC's decision would be final. The AIRC in its judgment did not interfere with the process of decision-making used by the STA or interfere with its decision. Subsequently the applicant's union sought to re-open the applicant's claim and the application for reconsideration was also rejected by the AIRC. 61 The applicant in support of the Commission's jurisdiction to hear the application submits the notification of his dispute to the AIRC was made under s99 of the Industrial Relations Act 1988. The union announced its appearance in the case to determine the merits of the STA's action in dismissing a bus operator from the Ryde depot in the following manner: Yes, if the Commission pleases, I represent the Australian Rail, Tram and Bus Industry Union.

The union gave a commitment to abide by the AIRC findings and that it would not mount a challenge to the AIRC's jurisdiction. At no time, the applicant submits, was there an appearance announced on behalf of the applicant. For the purpose of this litigation the applicant distances himself from the union's appearance on his behalf. 62 The decision of the AIRC dated 23 March 1993 is headed "Dismissal of bus operator" and it notes: It was agreed by all parties that the Commission would hear and determine the matter of the dismissal and the Commission's decisions would be accepted as final by all parties. 63 Further, the applicant submits in March 1993, the AIRC did not possess the jurisdiction to order the reinstatement of a dismissed employee (Victoria v Commonwealth of Australia (1996) 138 ALR 129). The applicant further submits a trade union is not an agent of its members but is a principal to any award or agreement (MTEA v AEU (1935) 54 CLR 387). In support of this submission, the applicant as to jurisdiction relies on the National Union of Workers & Ors v Pacific Dunlop Tyres Pty Limited and Goodyear Tyres Limited t/as South Pacific Tyres (1992) 43 IR 201, where the Federal Court allowed an appeal against a decision of the AIRC in favour of the employer party, accepting the submission the Federal Court was estopped from relying on issues raised before the AIRC as there was an agreement between the parties the AIRC should decide the matter in dispute and the AIRC was acting as a private arbitrator in the common law sense. Heerey J, in considering the jurisdiction of the Federal Court made some succinct comments (at 209): In any case, since consent cannot create jurisdiction ... there could be no binding contract to confer jurisdiction.

Turning to the position of the individual employees he held: Nor is there any reason to conclude that whatever agreement was reached bound Mr . . . . The union advocate did not announce an appearance on (their) behalf or otherwise purport to bind them. 64 A similar argument to the South Pacific Tyres Case was adopted by von Doussa J in Hatchett v Bowater Tutt Industries Pty Limited (1991) 2 AILR, when he determined because the AIRC had no jurisdiction to decide the fairness of a dismissal, its decision could not prevent the dismissed employee from pursuing a remedy in the Federal Court. The applicant therefore submits as the parties to the proceedings before Commissioner O'Shea were the union and the present respondent there was no agreement by the applicant to be bound by the decision of Commissioner O'Shea. 65 The respondent submits the s106 proceedings are in truth proceedings to review the procedures of the STA in the applicant's dismissal which proceedings, if allowed, would amount to an abuse of process. As was held in Walton v Gardiner (1993) 177 CLR 378 by Mason CJ, Deane and Dawson JJ: The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extend to all those categories of cases in which the process and procedures of the court which exist to administer justice with fairness and impartiality may be converted into instruments of injustice or unfairness. 66 The respondent submits s106 of the Industrial Relations Act of itself may not be inconsistent with the provisions of the Federal award (subject to the question of appeal) because by its own operation, it does not create any rights or obligations (see Majik Markets Pty Limited v Brake and Service Centre Drummoyne Pty Limited (1992) 28 NSWLR 443 at 461(e)-(f), 449-450). However, an Order pursuant to that section would raise an inconsistency. 67 The respondent relies on the Commonwealth of Australia v The State of Western Australia (1999) 160 ALR 638 where Gleeson CJ stated: For the purposes of s 109 of the Constitution, the question of inconsistency is ordinarily determined by arguing whether the Commonwealth law 'covers the field', or, whether the said law would, if valid 'alter, impair or detract from the operation' of the Commonwealth law. On other occasions, this question may simply be whether, for example, the laws cannot be obeyed simultaneously or whether one law takes away what the other confers. (at 652 par 54.) (see also Gummow J at 671 par 138; P v P (1994) 181 CLR 583 at 602.) 68 The respondent submits it was the intent of the Federal law (the Award) to "cover the field" at least to the extent of the matters dealt with in cll 29 and 33 of the award that is, Disciplinary Procedures. The respondent submits the effect of making the order sought by the applicant would be to "alter, impair or detract" from the operation of the award in that regard (see Telstra Corporation Limited v Worthing (1999) 161 ALR 489 (pars 27 and 28 and Majik at 448(b)-449(g)). 69 The courts have reached different conclusions in applying the test as to whether an Act "alter(s), impair(s) or detract(s)" from the operation of the award depending on the facts before it. In Ansett Transport Industries (Operations) Pty Limited v Wardley (1980) 142 CLR 237 at 287 the High Court concluded that there was no inconsistency between the provisions of the Airline Pilots' Agreement (cl 6B) and the Equal Opportunity Act 1995 (Vic) (per Mason J at 262-263-4,265; per Stephen J at 246.) On the other hand, in the MTIA v AMWSU (1983) 152 CLR 632, the High Court held that the Employment Protection Act 1982 (NSW) was inconsistent with the Metal Industry Award. 70 While a Full Court of the Industrial Court of New South Wales in Totalisator Agency Board (TAB) Agents Association of New South Wales (1995) 59 IR 36 concluded that s275 of the Industrial Relations Act 1991 (a similar provision to s106 of the current Act) was not excluded by the provisions of the Totalisator (Off Course Betting) Act 1964, the court held the "real issue" to be determined was the operation and interaction of the two relevant acts. Both Acts were legislative provisions of the State. 71 The applicant submits the Transport Administration Act 1988 (NSW) by its own terms envisages the operation of the award as being "neither a complete system of law or statute collecting and stating the whole of the law as it stood at the time the Act was passed". 72 The applicant submits that any order made under s106 of the Industrial Relations Act would simply be an order fixed by another Act as envisaged under cl 61 of the Transport Administration Act. 73 The "operation of and interaction between" the two relevant State Acts rests upon the operation of s61 of the Transport Administration Act. It recognises the conditions of employment of bus drivers may be effected by or under other State Acts, for example, the Anti-Discrimination Act, 1977. 74 The applicant accepts that there is a code of law related to bus drivers. However, the applicant does not accept that it is a complete code. He relies on the words in s61 of the Transport Administration Act 1988: The State Transit Authority may fix the salary, wages and conditions of employment of its staff in so far as they are not fixed by or under any other Act or law. (emphasis added) 75 The applicant submits the relevant regulations under the Transport Authorities Act reg 17(1) and (2) do no more than dispense with the need for a formal hearing. They do not otherwise abrogate the obligation to accord the applicant procedural fairness. As neither the Transport Administration Act nor its regulations exclude the principles of natural justice, the Discipline Procedure based upon such legislation also cannot so do. The applicant's submissions relies on the words of Hungerford J in the Totalisator Agency Board Case (p37.6): The answer depends upon the operation of and inter connection between the IR Act and the Totalisator (Off Course Betting) Act 1994. 76 As to an "inconsistency" the applicant relies on Marks J in Majik Markets who held if a party is to succeed in demonstrating that the exercise of jurisdiction under s88F will create inconsistency for the purpose of s109 of the Australian Constitution, it is necessary for the party so submitting to demonstrate that the Federal law was intended to cover the particular area to the exclusion of State law.

Submissions on the application under s106 of the Industrial Relations Act, 1996 77 The applicant submits generally on the facts there is a distinction between procedural and substantive unfairness and a balance must be drawn between each. The applicant submits Mr Filewood had regard to matters beyond those which formed the basis for the Notice of Misconduct when he determined the applicant's subsequent dismissal. 78 Assuming jurisdiction, the applicant presses his claim that the conduct of the respondent in applying the award and the regulations was in contravention of the rules of natural justice, thus making the contract unfair as defined in s106 of the Industrial Relations Act. 79 The respondent submits that while a "breach of natural justice" may be a convenient description of the applicant's complaint, there is an onus on the applicant to demonstrate there was an unfair contract. In other words, a breach of "natural justice" of itself does not demonstrate the contract of employment was unfair. Even if established, the applicant's assertion that Mr Filewood acted in the position of both complainant and arbitrator does not of itself demonstrate that the contract of employment was unfair argues the respondent. Nor, it submits, does unfairness necessarily follow if the applicant did not have access to material relied upon by the respondent. 80 Generally the respondent submits there was a Discipline Procedure in place that provided to the applicant a full opportunity to state his version of what occurred; the applicant exercised that opportunity on more than one occasion; the applicant had the assistance and advice of his union in the Disciplinary Procedure. The respondent submits the decision to dismiss the applicant from his employment was unequivocally correct. In the alternative, the respondent submits, at the very least, such a decision was reasonably open to the employer. The respondent submits the applicant's version of events was relied upon to determine his termination and therefore there was no call for the decision-maker to assess different versions.

Conclusions 81 The applicant has a contract of employment. Incorporated into that contract are the provisions of a Federal Award and a State Act. In a reading of all the authorities relied upon by both parties, I am persuaded that on basic principles and on the facts before me, under the Federal Award, the NSW Government Bus Traffic Employees Award, 1981 read with the relevant NSW Act, the Transport Administration Act and its associated Regulations, the applicant's conditions of employment are comprehensively covered and certainly the Act and Award cover the Disciplinary Procedures of the applicant's employment contract. The award, a Federal Award, can be read together with the State Transport Act and there is no inconsistency between the two nor did either party argue as to any inconsistency between the two. I find the Federal Award and the State Transport Act together enact completely, exhaustively and conclusively what procedures shall govern the conduct of Disciplinary Procedures for a NSW bus driver. 82 Adopting such an approach in this case, s106 must be construed so as to not interfere with the statutory regime in place to govern the employment of the respondent's employees. In Grant v The State of New South Wales (No 2) (1991) 48 IR 314 the court held the Commission did not have jurisdiction under s88F of the Industrial Arbitration Act 1940, (also a similar provision to s106 of this Act), to declare void or vary a contract or arrangement of a Commissioner and Deputy Chairman of the Corrective Services Commission. In that judgment Hill J (at 326) observed that the general provisions of s88F must be construed having regard to the specific provisions and the intention of the special legislation which governed the contract or arrangement (see also Lynn v Byron [1995] NSW IR 114, 29 June 1995). I am persuaded the court must have regard to the specific provisions for the Disciplinary Procedures of NSW bus drivers as legislated in the NSW State Transport Act and the Federal Award. 83 Although not raised in litigation before me, Hungerford J in the recent matter of Stonham v The Speaker of the Legislative Assembly of NSW (2000) 97 IR 325 considered a Notice of Motion to strike out a claim under s106 of the Industrial Relations Act. Section 105 of the Industrial Relations Act becomes relevant. It states under "Definitions": In this Part: contract means any contract or arrangement, or any related condition or collateral arrangement, but does not include an industrial instrument.

His Honour posed the question (at par 36-37): . . . it seems to me, the real question for determination raised by the motion is whether the enterprise agreement and award formed part of the contract of employment in such a way as to make them exclusive of anything otherwise contained in it whether by the contract's terms or by the operation of orders under s 106 affecting the contract. That requires attention to the nature of the relationship between an industrial instrument and the contract of employment.

37. the question so posed necessarily is to be seen, apart from the statutory provisions . . .

His Honour found the Award and Agreement, both under State jurisdiction, contained terms which were substantially the same. His Honour found (at par 64): 64. . . . jurisdiction exists under s 106 to entertain the relief sought notwithstanding the exclusion of industrial instruments from the range of contracts covered by the section. The claims are directed against the contract of employment and in no way seek to derogate from the enterprise agreement or award.

His Honour reasoned: 40. . . . where a person is employed to perform work to which an award applies the parties are nonetheless bound by a contract being a contract of employment. In other words, the legal relations between them are determined in part by the contract and in part by the award . . . . . . 41 . . . Essentially ( the respondent to the claim ) had to establish that in some way the award (and enterprise agreement) became merged in or part of the contract of employment so as to be able to call in aid the explicit exclusion of industrial instruments from the contracts covered by s 106. . . . that any purported avoidance of or variation to such contract by means of s 106 was in fact not permitted because to do so would be to confer on the applicant benefits different from or in conflict with those laid down by the award. . . . 84 The application for orders under s106 of the Industrial Relations Act, a State Act in the circumstances before the court I find I would confer on the applicant "benefits different from" and "in conflict with" those laid down by the applicable Award and the State Transport Act.

Further, it would be difficult to support a proposition that s106 of the Industrial Relations Act could be used to declare "unfair" a provision in another State Act, that is, the State Transport Act. 85 Nonetheless, I accept the submission of the applicant that s61 of the Transport Administration Act recognises other State Acts may set-off or effect the conditions of employment for the STA staff. Such is acknowledged by Hungerford J in Stonham. The effect of the terms of cl 61 of the State Act does not however "open the door" to allow s106 of the Industrial Relations Act to override the comprehensive code established by the Parliaments for the Disciplinary Procedures to be applied to NSW bus drivers. 86 I find the Federal Award, the New South Wales Government Bus Traffic Employees' Award (1981) and the Transport Administration Act 1988 and its Regulations outline a Disciplinary Procedure to be applied to NSW bus drivers that is exhaustive and leaves no avenue for the application of s106 of the Industrial Relations Act. The Disciplinary Procedures have been fixed by the co-joint reading of the Federal Award with the State Transport Act. 87 Even if, in a consideration of the facts presented before this court, there was a finding of unfairness in this applicant's employment contract as to the conduct of the respondent in its investigation and termination of the applicant, and I would on the evidence be so inclined to find, the court finds it has no jurisdiction, in the circumstances to give such orders under s106 of the Act as the Federal Award read with the State Transport Act provides a comprehensive and exhaustive code for the Disciplinary Procedures to be applied to Bus Drivers in NSW. The relevant procedures were followed. The applicant failed in those procedures to obtain the orders sought. Similar orders called for by the application of s106 of the Industrial Relations Act are not available to the applicant. 88 Therefore, I find in the circumstances the Industrial Relations Commission in Court Session has no jurisdiction to make orders under s106 of the Industrial Relations Act, 1996. 89 The question as to an "inconsistency" between a State and Federal law related to provisions of the Federal Award, the New South Wales Government Bus Traffic Employees' Award (1981) as varied and the NSW Industrial Relations Act 1996 does not, therefore, arise but were it relevant, in the circumstances, the court would find the orders sought under s106 would raise an "inconsistency" between the State and Federal Law. 90 I uphold the order as contained in the Further Amended Notice of Motion: 1. . . . that claims 1 and 2 of the Summons for Relief under s.106 in proceedings No. IRC2343 of 1998 before the Industrial Relations Commission of New South Wales in Court Session be struck out and dismissed 91 The application for relief under s106 of the Industrial Relations Act 1996 is therefore dismissed. 92 Leave to the parties to make application as to costs if no agreement can be reached.

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