Ergon Energy Corporation Ltd & Anor v The Electrical Trades Union of Employees of Australia, Queensland Branch & Ors [2005] QIRC 56 (2005) 179 QGIG 21

[Extract from Queensland Government Industrial Gazette, dated 13 May, 2005, Vol.179, No.2, pages 21-22] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 156 – application for approval of certified agreement Ergon Energy Corporation Ltd and Another AND The Electrical Trades Union of Employees of Australia, Queensland Branch and Others (No. CA140 of 2005) PRESIDENT HALL VICE PRESIDENT LINNANE COMMISSIONER THOMPSON 28 April 2005 DECISION The proposed Ergon Energy – Certified Agreement 2005, has been lodged for certification. The Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees (hereafter AMACS) is not a proposed party. AMACS is a “relevant employee organisation”. It has the “right to be heard” described at s. 155 of the Industrial Relations Act 1999 (the Act). By an application for directions lodged on 19 April 2005, AMACS sought orders for discovery against certain proposed parties to the certified agreement. When the application for certification was mentioned on 19 April 2005 the proposed parties opposed the grant of orders for discovery on the ground that Rule 38 of the Industrial Relations (Tribunals) Rules 2000 (the Rules) did not authorise the Commission to make such an order in favour of a participant other than to the proceedings. That issue was listed for hearing on 22 April 2005. Immediately prior to the hearing AMACS advised that on the matter being called, it would seek an order pursuant to s. 329(b)(1) of the Act that it be a party to the proceedings. That in fact occurred. We dismissed the application. Our reasons follow. Section 329(b) distinguishes between “parties to the proceedings” and persons who, as a matter of discretion, “may be heard”. Section 322 recognises yet another possible participant, viz. an intervener. Whilst the full rights of an “intervener” under the Industrial Relations Act 1999 have not been exhaustively determined, one has to take as a starting point that as a general proposition a person accepted as an intervener becomes a party to the proceedings, compare Corporate Affairs Commission v Bradley [1974] 1 NSW LR 391 at 396 per Hutley JA and United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 at 534. Given that the right to intervene is confined to the Minister and Peak Councils, we are reluctant to treat those given a “right to be heard” as having comparable rights. Further, if the legislature had intended “related employee organisations” to be parties to proceedings for the certification of an agreement, one might have expected the legislature to say so. In our view the purpose of s. 155 is to give “related employee organisations” the opportunity to be heard without the necessity to seek leave pursuant to s. 329(b)(v). AMACS’s principle argument is not that it is a party but that it should be made a party pursuant to s. 329(b)(i). As a matter of first impression, s. 329(b)(i) appears to be directed to the determination of the “parties” where the identity of the parties is an issue, e.g. where there is a dispute about the identity of the employer in the case of a “loaned” employee. However, on the assumption that s. 329(b)(i) vests power to make a person a party to proceedings when the person is not, it would be wrong to do so where the explicit purpose of the order is to give an opportunity to seek orders for discovery to a person not otherwise entitled to such orders. AMACS’s real problem is not Rule 38. If it was simply a matter of inadequacy in the rules, waiver pursuant to s. 329(k) would be available. The real difficulty is that the discovery constitutes a very serious invasion of the privacy and confidentiality of a litigant’s affairs, compare Harman v The Secretary of State for the Home Department 1983 [1 AC 280 at 308 per Lord Keith of Kinkel, followed Mackay Sugar Cooperative Association Limited v CSR Limited (1996) 137 ALR 183 187 Spender J. It is very much a creature of superior courts of record with ample powers to ensure that information gleaned on inspection of discovered documents is not utilised for an extraneous purpose. The Queensland Industrial Relations Commission, howsoever constituted, is but a court of record, s. 255 of the Act. It has limited capacity to intervene where a party misuses information obtained on discovery. It has no effective power to come to the aid of a litigant whose information is misused by a person who is not a party. It would be wrong to resort to stratagems to expose litigants to such risks. The convenient fiction of allowing AMACS to assume the persona of a “party” would not avail a party discovering documents seeking a remedy against the misuse of information. The statutory discretion at s. 326(f) is constrained by the requirements of justice. We note, that with the possible exception of the orders made by Einfield J at first instance in United States Tobacco Co v Minister of Consumer Affairs and Others (1988) 520 FCR 79 520 a review of the literature does not disclose examples of orders for discovery in favour of persons with a right to be heard and Einfield J’s order was described by the Full Court of the Federal Court as “unusual (at 539)”. -- 1 of 2 -- 2 It was for those reasons that we dismissed AMACS’s application to be made a party. Dated 28 April 2005. D.R. HALL, President. D.M. LINNANE, Vice President. J.M. THOMPSON, Commissioner. Appearances: Mr A. Herbert instructed by McCullough Robertson for Ergon Energy Corporation Ltd. Mr A. Horneman-Wren (directly instructed) for the Minister for Industrial Relations. Mr R. Perry SC (directly instructed) for the Anti- Discrimination Commission Queensland. Mr M. Kimber SC instructed by Hall Payne Lawyers for The Electrical Trades Union of Employees of Australia, Queensland Branch and Federated Engine Drivers’ and Firemen’s Association of Australasia Queensland Branch, Union of Employees. Released: 28 April 2005 Ms K. Allen of the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland. Mr I. Buckley of the Queensland Services, Industrial Union of Employees. Ms J. Tovey of the Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees. Mr M. Healy of the Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees. Government Printer, Queensland The State of Queensland 2005. -- 2 of 2 --