Blemrose Pty Ltd v Liquor Hospitality and Miscellaneous Union, Queensland Branch, Union of Employees [2008] QIRC 38 (2008) 188 QGIG 1

[Extract from Queensland Government Industrial Gazette, Dated 2 May 2008, Vol. 188, No. 1, pages 1-3] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 280 - application for re-opening Blemrose Pty Ltd AND Liquor Hospitality and Miscellaneous Union, Queensland Branch, Union of Employees (B/2007/62) COMMISSIONER FISHER 21 April 2008 Application for re-opening - Certified Agreement - Agreement coverage - Previous Certified Agreement cancelled - Certain employer parties to 2002 Certified Agreement not party to 2006 Certified Agreement - Industrial coverage of employers not bound by 2006 Certified Agreement open to challenge - Possibility of Case Stated to Industrial Court on jurisdictional issues - Parties given opportunity to confer on content of questions - Commission determined questions for Case Stated to Industrial Court. DECISION On 13 February 2006 Craig Pollard, on behalf of the applicants, signed an application for certification of the Building Service Contractors Association of Australia - Queensland Division Certified Agreement 2005 (the 2005 Agreement). The application contained the following statements: "Particulars of current or previous certified agreement (a) Building Service Contractors' Association of Australia - Queensland Division, Certified Agreement 2002 (CA320 of 2002). This Agreement replaces the Agreement (a) above.". The matter number CA/2006/61 was assigned to the 2005 Agreement and was duly certified by Commissioner Edwards on 7 March 2006. The certificate signed by Commissioner Edwards consequent upon the certification was in the following terms: "This agreement cancels CA320 of 2002 - Building Service Contractors' Association of Australia - Queensland Division, Certified Agreement 2002.". On 19 October 2007 Deirdre Duncan, Director of Blemrose Pty Ltd, applied to the Commission to re-open the matter number CA/2006/61 under s. 280 of the Industrial Relations Act 1999 (the Act). The decision sought by this application was in the following terms: "(a) That the order of Commissioner Edwards dated 1 March 2006 be amended to say that 'This agreement cancels CA320 of 2002 - Building Service Contractors' Association of Australia - Queensland Division, Certified Agreement 2002 in respect of those parties who are parties to this Agreement only;' ". The application was amended on 19 October 2007 only to change the date of the Order issued by Commissioner Edwards from 1 March 2006 to 7 March 2006. It is noted that while the application refers to the "Order" issued by Commissioner Edwards the document actually issued is headed "Certificate". There is a live issue as to whether a Certificate issued upon certification of an agreement is a decision of the Commission. The application (as amended) was made to overcome a problem that has arisen since the certification of the Agreement. The employer parties to the Agreement are listed individually in Annexure A to the Agreement. The various employer parties comprise companies, partnerships, business names etc. Since the Agreement was certified and the 2002 Agreement was cancelled it has come to light that certain employer parties to the 2002 Agreement are not parties to the 2006 Agreement. This has left the industrial coverage of employers which were parties to the 2002 Agreement and which were not bound by the 2006 Agreement open to challenge. The amended application was allocated to me by the Vice President following Commissioner Edwards' retirement from the Commission in August 2007. It has had somewhat of a chequered history before me. To cut to the chase, on 12 March 2008 a hearing of the matter was listed. Both parties had previously filed outlines of their submissions. At the commencement of the hearing the Commission raised with the parties the prospect of having a Case Stated to the Industrial Court pursuant to s. 282 of the Act given the jurisdictional issues raised in the respondent's outline. The Commission proposed that three of the questions posed in the respondent's outline be the questions stated to the Industrial Court. However, before making any final determination on the path to be taken or the content of the questions, the Commission gave the parties the opportunity to consider their respective positions and, if in agreement with the proposal to have a case stated, to confer on the content of the questions. -- 1 of 2 -- 2 On 11 April 2008 the Commission was advised that the parties had agreed to a case being stated to the Industrial Court and had reached agreement on three questions - the same three as contained in the respondent's outline and proposed by the Commission. However, the applicant wished to have a fourth question included but this was opposed by the respondent. The proposed fourth question is in the following terms: "Where a multi-employer agreement certified pursuant to s. 156 of the Act exists (the first agreement) and some parties to that agreement make another multi-employer agreement which is also certified pursuant to s. 156 of the Act (the second agreement), is the first agreement cancelled for all parties to the first agreement upon the certification of the second agreement, or for only those parties who are a party to the second agreement?". The applicant seeks the inclusion of this question because its central contention is that Commissioner Edwards acted ultra vires in the wording of the certificate he issued consequent upon the certification of the 2005 Agreement. It is submitted that as a result enforcement agencies responsible for enforcing the terms and conditions of the Agreement may be potentially mislead. The respondent opposes the inclusion of the fourth question arguing that it is not relevant to the proceedings. The respondent contends that the underlying assumption of the amended application is that to effect a change in the parties bound by the 2005 Agreement it is necessary to amend the certificate, whereas, the question now sought to be included assumes that question of the parties bound is determined by operation of statute rather than by the content of the certificate. That is to say the question now sought to be stated goes to whether the Commission acted ultra vires in purporting to cancel the 2002 Agreement. An application for re-opening pursuant to s. 280 of the Act is an inappropriate vehicle for the question now sought to be stated. The application (as amended) is one for re-opening to amend the "Order" issued by Commissioner Edwards certifying the 2005 Agreement and cancelling the 2002 Agreement. The three agreed questions are preliminary issues to be determined before the matter of whether the Commission should exercise its discretion to re-open is considered. In contrast, the question proposed by the applicant goes to a substantive issue - i.e. an issue to be determined only if the matter is re-opened. I consider that only the preliminary questions should be stated to the Industrial Court as the answers to them will determine the future course of the application. Accordingly, the Commission determines that the questions to be stated to the Industrial Court are: (i) Is the amended application a matter that is within the jurisdiction of the Commission? (ii) If the answer to (i) above is in the affirmative, does the applicant have standing to make the amended application? (iii) If the answer to each of (i) and (ii) above is in the affirmative, then, in respect of the purported decision sought to be amended, is that "a decision" within the meaning of s. 280(3)(a) of the Industrial Relations Act 1999? Order accordingly. G.K. FISHER, Commissioner. Hearing Details: Appearances: 2007 22 October and 6 November 2008 12 March and 11 April Released: 21 April 2008 Mr C. Pollard of Jones Ross Pty Ltd and with him Mr P. King on behalf of the Applicant. Mr J. Merrell instructed by Ms T. Butler of Hall Payne Lawyers in the first instance and subsequently Mr M. Wright of Hall Payne Lawyers and with him Mr K. Crank on behalf of the Respondent. Government Printer, Queensland The State of Queensland 2008. -- 2 of 2 --