Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland v Ipswich City Council [2015] QIRC 100

1 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland v Ipswich City Council [2015] QIRC 100 PARTIES: Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland (Applicant) v Ipswich City Council (Respondent) CASE NO: B/2015/1 PROCEEDING: Application to dismiss matter B/2014/71 DELIVERED ON: 27 May 2015 HEARING DATE: 6 February 2015 MEMBER: Deputy President O'Connor ORDERS : 1. Application dismissed CATCHWORDS: INDUSTRIAL LAW - Application to dismiss substantive proceedings - Application for declarations - Power of the Commission under s 274A to hear and determine application - Standing to make application - Whether a person may be directly affected by the declaration - Application dismissed CASES: Industrial Relations Act 1999, s 274A Adelaide Development Co Pty Ltd v The Corporation of the City of Adelaide and Anor (1991) 56 SASR 497 City of Port Adelaide Enfield v Bingham [2014] SASC 36 Hayward & Anor v Forest Practices Tribunal & Anor [2003] TASSC 60 Ipswich City Council v The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (B/2013/50) -- 1 of 11 -- 2 Ipswich City Council v Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (No 2) [2014] QIRC 59 R v Rent Officer Service and Anor, Ex Parte Muldoon (1996) 1 WLR 1103 Re Salmon; Priest v Uppleby (1889) 42 ChD 351 The Australian Workers' Union of Employees, Queensland v The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (B/2008/40) The Queensland Public Sector Union of Employees v Queensland Fire and Rescue - Senior Officers Union of Employees (2009) 192 QGIG 39 APPEARANCES: Mr M. Amerena, Counsel instructed by Hall Payne for the Applicant. Mr C. Murdoch, Counsel instructed by Clayton Utz for the Respondent. Decision [1] On 1 December 2014, the Ipswich City Council ("the Council") filed an application for declaration (B/2014/71) in the Queensland Industrial Relations Commission Registry pursuant to s 274A of the Industrial Relations Act 1999 ("the Act"), hereafter the "substantive proceedings". [2] The declarations sought in the substantive proceeding (B/2014/71) are as follows: "(a) The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (CFMEUQ) does not have the right to and cannot provide funding to be used by or for the benefit of employees of the Ipswich City Council employed in the occupation or calling of domestic or commercial waste driver (Employee) in relation to any industrial matter, or matter relating to an Employee's employment as a domestic or commercial waste driver with Council. (b) The reference to 'former members' in the CFMEUQ rules does not include a person who may have been enrolled as a member of the CFMEUQ, but by reason of decision declaration and/or order of the Commission, are taken no longer to be eligible to be members of the CFMEUQ under its rules." [3] In this application (B/2015/1), the Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland ("the Union") applies for the following decision: (a) the Queensland Industrial Relations Commission does not have the jurisdiction, pursuant to section 274A of the Industrial Relations Act 1999 (Qld) to hear Application B/2014/71; and -- 2 of 11 -- 3 (b) the Ipswich City Council should pay the costs of the CFMEUQ of and incidental to defending matter B/2014/71, including and not limited to the cost of and incidental to this application. [4] The Council opposes the application. Background [5] The Council filed an application (B/2013/50) in the Commission on 7 August 2013 seeking declarations in relation to attempts by the Union to: "(a) enrol as members, domestic and commercial waste drivers as members who are employed by the Council; (b) lodge disputes in the Commission on behalf of its purported members; and (c) participate in Certified Agreement negotiations."1 [6] The proceedings before the Commission are set against the background of a dispute between the Council and the Union in regard as to whether or not the Union has the legal capacity to represent, enrol as members persons employed by the Council as domestic and commercial waste drivers. [7] On 25 March 2014, Commissioner Fisher in Ipswich City Council v Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland (No, 2)2 made the following declarations pursuant to s 274A of the Act: "1. Any person employed by the Ipswich City Council in the occupation or calling of domestic or commercial waste driver is not eligible to be a member of the Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland; and/or 2. The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland is not entitled to enrol or keep enrolled as a member any person who is employed by the Ipswich City Council in the occupation or calling of domestic or commercial waste driver; and/or 3. The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland does not have the right to represent under the Industrial Relations Act the industrial interests of employees of the Ipswich City Council employed in the occupation or calling of domestic or commercial waste driver."3 [8] It is the Council's belief that notwithstanding the declarations given by Commissioner Fisher, the Union has sought to represent Council employees in the occupation or calling 1 Submissions of the Respondent at para [7]. 2 Ipswich City Council v Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland (No, 2) [2012] QIRC 59. 3 Ipswich City Council v Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland (No, 2) [2012] QIRC 59 at para [127]. -- 3 of 11 -- 4 of domestic or commercial waste drivers. In that regard, it is helpful to refer to the affidavit of Craig Maudsley, Chief Operating Officer of the Council who deposes as follows: "10. On 26 September 2014, Dean Weise, who is employed by Council as a waste driver, filed an application in this Commission in respect of unpaid wages (Dispute). 11. Council holds concerns that the CFMEUQ has provided funds to law firm Hall Payne Lawyers, to fund the Dispute and that this provision of funds by the CFMEUQ is not authorised by its rules. 12. On or around 16 September 2014, Mr Higgins of the CFMEUQ advised me that: a. the CFMEUQ had provided funds to Hall Payne Lawyers, to contribute to the cost of an earlier dispute (D/2013/121) filed by Mr Weise; b. he was not aware if all of those costs were used, because the earlier dispute did not go to hearing; c. no monies were refunded to the CFMEUQ, but rather the balance of the funds was likely being used to pay for the Dispute." Legislation [9] Section 274A of the Act relevantly provides: "274A Power to make declarations (1) The commission may, on application, make a declaration about an industrial matter. (2) The commission may make the declaration whether or not consequential relief is or could be claimed. (3) The application may be made by— (a) a person who may be directly affected by the declaration; or (b) an inspector; or (c) an organisation of employees or employers of which a person mentioned in paragraph (a) is a member, if it is acting with the person’s written consent; or (d) an organisation of employees or employers who may be directly affected by the declaration. (4) Subject to chapter 9, a declaration made by the commission under this section is binding in any proceeding under this Act in relation to the issue determined by the declaration." -- 4 of 11 -- 5 The Argument before the Commission [10] The Union argues that the substantive proceedings should be dismissed if the Commission concludes that it does not have the jurisdiction to hear and decide the matter or, in the alternative, the power to grant the relief sought in the substantive proceeding. [11] By s 274A(1) of the Act, the Commission may make a declaration about an industrial matter on application. Section 274A(3) sets out who may bring an application. [12] The power of the Commission to make a declaration under s 274A of the Act was considered by Commissioner Fisher in The Australian Workers' Union of Employees, Queensland v The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland4. In that case, Commissioner Fisher found: "Section 274A gives the Commission power to issue a declaration about an industrial matter. The section does not provide guidance about the circumstances in which a declaration may be issued. The Minister's Second Reading Speech and Explanatory Notes also do not shed any light on this or the purpose of the section. The power given to the Commission is discretionary and in the absence of statutory guidance about its exercise it is useful to have regard to general law decisions about the exercise of discretion in applications for declaratory relief. It has been held that the discretion "must be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making" Ibeneweka v Egbuna [1964] 1 WLR 219 @ 224-5 (PC) approved in Australia in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564. Further, as was held in Ainsworth, declarations are not generally issued where the determination would have no practical relevance or utility or where the application deals with abstract or hypothetical issues."5 [13] For the purposes of this matter, s 274A(3)(a) is the only provision under which the Council could bring an application. [14] It is not in dispute between the parties that the Council is a person for the purposes of s 274A(3)(a) of the Act, being a body corporate established pursuant to s 11(a) of the Local Government Act 2009.6 [15] The Union argues that the Council does not have the capacity to bring the application under s 274A(3)(a) as the Council is not, in their submission, "a person who may be directly affected by the declaration". 4 The Australian Workers' Union of Employees, Queensland v The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (B/2008/40). 5 The Australian Workers' Union of Employees, Queensland v The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (B/2008/40). 6 Acts Interpretation Act 1954, s 32D(1). -- 5 of 11 -- 6 [16] In Ipswich City Council v The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland7, Commissioner Fisher had to determine whether or not the Council had standing to bring the application. Commissioner Fisher found: "In the SOU Case, Hall P was considering a case stated to the Industrial Court about whether the commission had power under s. 274A to make certain orders and directions pursuant to s. 274A of the Act. More will be said about the application of that decision to the present matter later. For present purposes, it is important to note that the President held that "there is nothing remote or tenuous about the connection between the regulation of the relations between employer and employee and participation in and representation in the enterprise bargaining regime which is a means of regulation." The Commission accepts that these comments were made in the context of considering the meaning of the term "industrial matter" in s. 7 and Schedule 5 to the Act. However, in my view the above statement by the President is also apposite to the issue of whether the employer is directly affected by the representation by industrial organisations of certain employees or classes of employees. The Council has been the respondent to a dispute notification filed by the CFMEUQ and by a member of the CFMEUQ regardless of whether conferences before the Commission have proceeded. The CFMEUQ intends to become involved in negotiations about a new agreement to replace the present agreement covering Waste Services employees. It is not a party to the present agreement. In these circumstances there is nothing remote or tenuous about the effect of this application on the Council and it is directly affected."8 [17] The Union urges the Commission to adopt a narrow construction of s 274A of the Act. It is the Union's contention that the statutory context in which the phrase "directly affected" occurs in s 274A of the Act requires a stricter and less liberal construction. [18] The Union referred the Commission to R v Rent Officer Service and Anor, Ex Parte Muldoon9. That case concerned a judicial review by two applicants concerning the refusal or failure of the Rent Review Officer Service and the local authority to determine claims for housing benefits. The Secretary of State for Social Security was required by s 135 of the Social Security Administration Act 1992 to reimburse up to 95% of the local authority's' housing benefit qualifying expenditure. The Secretary of State applied to the High Court to be joined as a respondent in both application's as a person "directly affected". [19] In giving the unanimous decision of the House of Lords, Lord Keith of Kinkel concluded: "That a person is directly affected by something connotes that he is affected without the intervention of any intermediate agency. In the present case if the applications for judicial review are successful the Secretary of State will not have to pay housing benefit to the applicants either directly or through the agency of the local authority. What will happen is that up to 95 per cent of the amount paid by the local authority to the applicants will be added to the subsidy paid by the Secretary of State to the 7 Ipswich City Council v The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (B/2013/50). 8 Ipswich City Council v The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (B/2013/50) at para [11]. 9 R v Rent Officer Service and Anor, Ex Parte Muldoon (1996) 1 WLR 1103. -- 6 of 11 -- 7 local authority after the end of the financial year. The Secretary of State would certainly be affected by the decision, and it may be said that he would inevitably or necessarily be affected. But he would, in my opinion, be only indirectly affected, by reason of his collateral obligation to pay subsidy to the local authority. In the course of the argument there was cited as bearing on the point in issue In re Salmon; Priest v Uppleby (1889) 42 ChD 351. Rule 2 of the then Order 58 provided that notice of appeal was to be served on all parties 'directly affected'. The defendant to an action had brought in third parties alleging that the latter had agreed to indemnify him. The plaintiff, who had been unsuccessful against the defendant at first instance, appealed. The defendant objected that the plaintiff had not served notice of appeal on the third parties. The Court of Appeal, Cotton LJ dissenting, repelled the objection. Lord Esher Mr said, at p.361: 'I do not think that a third party brought in on the ground that he has undertaken to indemnify the defendant can be said to be 'directly affected' by the appeal." Fry LJ said, at p.363: 'Two questions arise in this action: first, whether the defendant is liable to the plaintiff; secondly, if so, whether the third parties are liable to indemnify the defendant. The first question affects the third parties, only through the intervention of the right of indemnity. Therefore, I think, the third parties are only indirectly affected by the appeal by reason of the defendant's rights against them.' The case presents a certain analogy with the present one, in respect that if the defendant was liable to the plaintiff the third parties might in substance have to meet the plaintiff's claim, yet they were held to be only indirectly affected. The reasoning is brief, but the point was a short one, not capable of any elaboration. I consider that a similar conclusion is correct in the present case."10 [20] Lord Keith held that whilst the Secretary of State would be affected by the decision, and would inevitably or necessarily be affected, he would only be indirectly affected by reason of his collateral obligation to pay subsidy to the local authority. Equally, in In re Salmon; Priest v Uppleby11 a case referred to in R v Rent Officer Service and Anor, Ex Parte Muldoon, the third party was indirectly affected having only a contingent interest in the proceedings being liable to indemnify the defendant. [21] In reliance on the reasoning in R v Rent Officer Service and Anor, Ex Parte Muldoon, the Union argued that the Council was not a person "directly affected" by the declaration. Rather, it was submitted, the declaration sought by the Council, if granted, can only impinge directly and immediately upon the relationship, otherwise lawful under the Legal Profession Act 2007 as between Mr Weisse as the client, his solicitors and the Union as the third party litigation funder.12 [22] In Adelaide Development Co Pty Ltd v The Corporation of the City of Adelaide and Anor13, Debelle J at para [45] wrote: 10 R v Rent Officer Service and Anor, Ex Parte Muldoon (1996) 1 WLR 1103, 1105 to 1106. 11 In Re Salmon; Priest v Uppleby (1889) 42 ChD 351. 12 Submissions of the Applicant at para [26]. 13 Adelaide Development Co Pty Ltd v The Corporation of the City of Adelaide and Anor (1991) 56 SASR 497. -- 7 of 11 -- 8 "The expression 'will directly affect' in this context is not a term of art. It means to have an immediate effect upon or to have an immediate influence upon: see the definitions of 'directly' and 'affect' and 'affected' in the Oxford English Dictionary and the Macquarie Dictionary. I am conscious that in attempting to define the expression, I am resorting to synonyms but the subsections are, I think, intended to apply when the proposal will produce an effect upon or have some consequence for an item of State heritage. The expression 'will directly affect' suggests a causal relationship between the proposed development and a heritage item. The effect could be detrimental or beneficial. The word 'directly' requires that the causal effect of the proposed development be direct or immediate: it is intended to exclude that which is indirect or remote. In legislation such as the Heritage Act, the expression 'will directly affect' should receive a more liberal interpretation that it might receive in other contexts. The effect may not, therefore, be limited to physical effects. It is, I think, wide enough to include an effect upon a heritage item such as overshadowing. It is wide enough also to include an effect occurring during the period of the works necessary for construction as well as an effect caused by the completed development. Thus, there may be a direct effect in the case of adjoining sites, where the development may involve an excavation which affects the rights of support of an adjoining heritage building. Whether a proposal will directly affect a heritage item will be a question of fact and degree in every case and each case will have to be considered in the light of its own facts and circumstances. Where it is not clear from the plans whether the proposal will directly affect the heritage item, it would be proper for the Council to make enquiries of the applicant to determine that question."14 [23] The Commission was also referred to the decision in City of Port Adelaide Enfield v Bingham15. In dealing with the interpretation to be place on the words "directly affected" Stanley J wrote: "32 The context of that legislation differs from the Ombudsman Act. Legislation that is more closely comparable to the Ombudsman Act was considered by the Ontario Supreme Court in Corporation of the Canadian Civil Liberties Association v Ontario Civilian Commission on Police Service. That was a case of judicial review of a decision of the Ontario Civilian Commission on Police Services in which the Commission refused to deal with a complaint of police misconduct on the basis that the complainant was not a person directly affected by the conduct in issue. The relevant provision of the Police Services Act, RSO 1990 provided for complaints to the Commission about the conduct of a police officer. The complaint could only be made if the complainant was directly affected by the conduct. The Court cited with approval an earlier decision of the Alberta Court of Appeal which had construed the expression 'directly affected', relying on the interpretation of the same expression by Lord Hobhouse in Re Endowed Schools Act, that the term points to 'a personal and individual interest as distinct from a general interest which appertains to the whole community'. The Alberta Court of Appeal held that the words 'directly affected' must mean more than 'affected' and that the inclusion of the adverb signalled a legislative intent to further 14 Adelaide Development Co Pty Ltd v The Corporation of the City of Adelaide and Anor (1991) 56 SASR 497 at para [45] to [47]. 15 City of Port Adelaide Enfield v Bingham [2014] SASC 36. -- 8 of 11 -- 9 circumscribe a right of appeal. Nonetheless, that did not justify too restrictive an interpretation of the expression, given the broad public purpose of the legislation which was meant to protect the most vulnerable in society against the most powerful agents of the state. When considered in the context of the regulatory scheme, the Court reasoned that the right of appeal was confined to persons having a personal rather than a community interest in the matter. There had to be some direct link between the complainant and the police conduct the subject of the complaint that distinguished the complainant's interest from that of any other member of the community. 33 In my view, a similar approach to the construction of s 15(3a) should be adopted. Notwithstanding the broad powers conferred on the defendant by the Ombudsman Act, there can be no doubt that the legislative intention which underlies s 15(3a) is to restrict the power of the Ombudsman to undertake investigations on the basis of complaints by members of the public. The expression 'directly affected' posits a causal relationship between the administrative act and its effect on the complainant. Plainly the requirement for a causal relationship is established by the word 'affected'. The use of the adverb 'directly' indicates that a causal nexus is not necessarily sufficient to come within the restriction imposed by s 15(3a). In this context it is a word of limitation. In my view, 'directly' is used in contradistinction to 'indirectly'. A member of the general public may be indirectly affected by an administrative act. Should that person bring a complaint to the Ombudsman, that causal relationship would not satisfy the test in s 15(3a). The boundary between a direct or indirect causal relationship for the purpose of s 15(3a) does not lend itself to precise definition. Whether the nature of the causal relationship between the administrative act and its effect on the complainant is found to be direct or indirect, will be a matter of fact and degree."16 (Citations omitted) [24] Stanley J took the view that the construction contended for by the plaintiff was too restrictive. His Honour wrote: "… the Ombudsman's power to conduct an investigation is restricted to circumstances where the complainant was a party to the contract or a competitor for the contract or a person with some legal or practical interest in the tyres, at the time of the act of engaging the sub-contractor, would be to limit the wide powers conferred on the Ombudsman in a manner which is not consistent with the public interest the legislation is intended to serve. In any event, the complainant did have a practical interest in the tyres."17 Discussion and Conclusions [25] It was acknowledged by the Union that "Indirectly, of course, there may be some effect in the sense that Mr Weisse might not be able to afford to be represented by a solicitor if the CFMEU(Q) does not provide that third party funding."18 However, it was contended 16 City of Port Adelaide Enfield v Bingham [2014] SASC 36 at para [32] to [33]. 17 City of Port Adelaide Enfield v Bingham [2014] SASC 36 at para [35]. 18 Submissions of the Applicant para [26]. -- 9 of 11 -- 10 by the Union that even in those circumstances the Council would not be a person "directly affected" by the declaration sought. [26] I accept the argument of the Council that, should Mr Weisse not receive the funding through the Union and be unable to be represented by a solicitor in litigation involving the Council, the Council would be a person who may be directly affected by the declaration being sought. [27] To adopt a narrower approach to the construction of "directly affected" would, in my view, be inconsistent with the width of s 274A of the Act. The wide power conferred on the Commission by s 274A to make a declaration, is limited only by the requirement that in relates to an industrial matter. An industrial matter is defined in s 7 of the Act and is a term that is far reaching.19 [28] The Council has submitted that the funding of proceedings has an immediate influence upon the Council because it is the subject of the proceedings funded by the Union, and as it is the subject of the proceeding, it has an interest in the matter that is beyond that of another member of the community. I agree. [29] I accept that the Council is, for the purposes of s 274A of the Act, a person who "may be directly affected" by the matters the subject of the declaration. In coming to that conclusion, I have formed the view that notwithstanding the ruling of Commissioner Fisher, the Union has sought to represent the interests of employees who are domestic or commercial waste drivers by funding litigation in which the Council is a party. [30] In the submission advanced by the Union, little weight has been put on the word "may" in s 274A of the Act. Indeed, most of the authorities to which I have been referred deal with the phrase "will be directly affected". [31] The use of the word "may" supports, in my view, a wider, less restrictive construction of the words "directly affected" as used in s 274A. What must be established is not whether a person "will be directly affected" by the declaration but rather whether they "may be directly affected" by the declaration. The use of the word "may" in s 274A of the Act provides no more than a "possibility"20 that the Council will be "directly affected" by the declaration sought. [32] My conclusion is consistent with the view of the wide power conferred on the Commission by s 274A, to make a declaration which is limited only by the requirement that in relates to an industrial matter. The public interest that the Act is proposed to serve of "encouraging responsible representation of employees/employers by democratically run organisations and associations"21 does not justify too restrictive an interpretation of the expression, given the broad public purpose of the legislation. [33] As Stanley J observed in City of Port Adelaide Enfield v Bingham, the boundary between a direct and indirect causal relationship does not lend itself to precise definition. Whether or not a causal relationship will be found will be a matter of fact and degree. As Slicer J 19 The Queensland Public Sector Union of Employees v Queensland Fire and Rescue - Senior Officers Union of Employees (2009) 192 QGIG 39. 20 The Australian Oxford Concise Dictionary. 21 Industrial Relations Act 1999, s 3(i). -- 10 of 11 -- 11 noted in Hayward & Anor v Forest Practices Tribunal & Anor22 the term "directly affect" has been given a number of meanings dependent on the nature of the applicable legislation. As a matter of statutory context and in the context of the Act, the phrase "may be directly affected" should, in my view, be given a wide and liberal interpretation. Accordingly, the Council "may be directly affected" by the declaration sought to be granted by the Commission. [34] It therefore follows that the Council has the necessary standing to bring its application as contained in the substantive proceedings. Orders: [35] I make the following orders: 1. Application dismissed. 22 Hayward & Anor v Forest Practices Tribunal & Anor [2003] TASSC 60 at para [42]. -- 11 of 11 --