Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland v Townsville Engineering Industries Pty Ltd [2005] ICQ 18 (2005) 178 QGIG 419

[Extract from Queensland Government Industrial Gazette, dated 29 April, 2005, Vol. 178, No.18, pages 419-421] INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(1) – appeal against decision of Industrial Commission Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland AND Townsville Engineering Industries Pty Ltd (No. C93 of 2004) PRESIDENT HALL 18 April 2005 DECISION On 22 July 2004 the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (AMEPKU) sent a notice under s. 143 of the Industrial Relations Act 1999 (the Act) to Townsville Engineering Industries Pty Ltd, proposing the making of a certified agreement. On or about 25 July 2004 an organiser of the AMEPKU made a personal approach to the manager of Townsville Engineering Industries Pty Ltd seeking to commence meetings to negotiate a certified agreement. He was informed that Townsville Engineering Industries Pty Ltd did not wish to enter into a certified agreement. That oral advice was confirmed in writing by Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers (acting on behalf of Townsville Engineering Industries Pty Ltd) by a letter of 22 July 2004. The peace obligation period expired on 12 August 2004. Two weeks later (on 26 August 2004) AMEPKU filed a request pursuant to r. 136 of the Industrial Relations (Tribunal) Rules 2000 (utilising Form 39), seeking the assistance of the Commission pursuant to s. 148(1)(a) of the Act to help the parties make a certified agreement. On 13 September 2004 the Commission (constituted by a member acting alone) convened a conference for the purpose of conciliating between the parties pursuant to s. 148(2). By written communication of 15 September 2004 the AMEPKU informed the Commission that Townsville Engineering Industries Pty Ltd was not prepared to negotiate with the AMEPKU and that in consequence, conciliation had been unsuccessful and the requirements of s. 149(1)(b) had been met. On 20 September 2004 the Commission reconvened the conciliation proceedings. Townsville Engineering Industries Pty Ltd informed the Commission that it was not prepared to enter into negotiations for a certified agreement. During an adjournment at that conference, the AMEPKU reduced its claim to the form of a log of claims. The conference reconvened on 5 October 2004, where once again Townville Engineering Industries Pty Ltd indicated that it was not prepared to enter into negotiations for a certified agreement. The Commission then determined that the requirements of s. 149(1)(b) had been met and that the matter should be arbitrated. There being no s. 149(10) consent, the matter then came into the hands of another Commissioner. When the matter was called for arbitration on 19 October 2004 an issue was raised about jurisdiction. That matter was heard on 1 December 2004. By decision published the following day and now reported at 177 QGIG 783, the objection to jurisdiction succeeded. The critical passage (ibid, at 785) appears to be: “It is my respectful view that the submissions of the respondent Townsville Engineering must be correct. Part 1 of Chapter 6 of the Act is all about agreement making, about negotiating and about breakdowns in that negotiating process. The Commission’s involvement comes about when there is a breakdown in that process. There is nothing in the Act, the Explanatory Notes, the Second Reading Speech of the Honourable the Minister or the Report of the Taskforce on Industrial Relations which requires that an employer must make an agreement or the Commission will arbitrate an ‘agreement’. In my view that would be a contradiction in terms. When it is proposed that an agreement be made, then any negotiations must be in good faith but if the employer does not wish an agreement at all and does not want to negotiate at all, then nothing in the Act operates to prevent that position. When the Commission is called upon to arbitrate, it must limit its considerations to the matters at issue during negotiations – s. 149(4) of the Act. If the employer does not want to enter into an agreement at all and there have been no negotiations, then there has been nothing at issue ‘during negotiations’. This is different to the situation arising where an employer enters upon negotiations but then makes a decision to opt out when ‘matters at issue’ become too complicated. What happens in that circumstance can be left to another day to determine, although I would prophesy a different outcome might ensue.”. The AMEPKU now appeals. The appeal must succeed. If Townsville Engineering Industries Pty Ltd was dissatisfied with the decision of the Commissioner who convened the conciliation conference that the jurisdiction to conciliate had been triggered, or with the subsequent decision that conciliation had failed in the s. 149(1)(b) sense, the company was perfectly entitled to bring an appeal under s. 341(1) and, subject to discretionary consideration, might have sought prerogative relief pursuant to s. 248(1)(e). But neither step had been taken. Both decisions, and in particular the decision that s. 149(1)(b) had been satisfied, still stood. It is the opinion of the Commissioner (purportedly) discharging the conciliation function that s. 149(1)(b) had been satisfied which triggers the authority of the Commission (usually otherwise constituted, s. 149(10)) to arbitrate, not the correctness of the opinion. To adopt the language of Barwick CJ in The Queen v Commonwealth Conciliation Arbitration Commission: ex parte Amalgamated Engineering Union (Australian Section) (1967) 118 CLR 219 at 240, the statutory language makes the opinion for which it provides definitive of the authority of the Commission. -- 1 of 3 -- 2 Both parties have asked that I determine whether conciliation by the Commission pursuant to s. 148 is available where, as here, a proposed employer party to a certified agreement refuses to be a party to a certified agreement (whatever its terms) from the very outset and maintains that position throughout. I am content to adopt that course, though in my view, the answer will not preclude the possibility of future challenge to the decision of the Commission to accept jurisdiction to conciliate. The essence of the argument is that there cannot be a “breakdown in negotiations” when there are no negotiations. For the purposes of the decision I assume that the argument is correct, I also assume that the interactions between the parties were not “negotiations”. One may assume all of that because the statutory language makes those issues irrelevant. The relevant trigger for the Commission’s power to conciliate is s. 148(1)(a). The provision does not in terms establish a “breakdown in negotiations” as a prerequisite to conciliation. Section 148(1)(a) provides: “148(1) This section applies if, after the peace obligation period has ended – (a) party who has attempted to negotiate a certified agreement (a ‘negotiating party’), by a declaration of a breakdown in negotiations, has asked the commission to help the parties to make a certified agreement.”. It may be conceded that s. 148(1)(a) will only operate to confer jurisdiction where the request for help comes from “a party who has attempted to negotiate a certified agreement”. That is entirely understandable. It is not the purpose of Chapter 6 Part 1, Division 1 of the Act to emulate the Federal “paper dispute” model and permit a proposer who had done no more than deliver an advice under s. 143 to seek the intervention of the Commission to conciliate and, (if conciliation fails), to arbitrate, so soon as the peace obligation period expires. The purpose of Division 1 is to encourage an industrial culture in which participants in industry settle the terms of engagement by negotiation amongst themselves. It would entirely frustrate the legislative scheme if a party who made no attempt to negotiate might involve the Commission to conciliate and (if necessary) arbitrate. But s. 148(1)(a) does not require a party who is genuinely attempted to negotiate a certified agreement to establish “a breakdown in negotiations” in order to invoke the assistance of the Commission. No more than a declaration is required. And that is perfectly understandable. The power being triggered is the conciliation power. It is difficult to envisage a less fruitful way of conciliating than commencing by raking over the coals and making a formal finding that negotiations have broken down. By s. 14(B)(i)(c) of the Acts Interpretation Act 1954 consideration may be given to extrinsic material to confirm the interpretation conveyed by the ordinary meaning of the provision. Here, great assistance may be gleaned from the Second Reading Speech of the then Minister for Employment Training and Industrial Relations reported in Hansard, 25 May 1999 and commencing at p. 1827. Two passages are of critical importance. At p. 1829 the Minister observed that the key objects included: “Providing enhanced powers for the resolution of industrial disputes and an increased role for the Commission when negotiations for agreements break down.”. That passage lends support to the contention of the Respondent. But at pp. 1833-1834 the Minister also observed: “In addition to the twenty one day peace obligation period, the Bill reflects a number of these recommendations which include –  following the expiry of the peace obligation period and evidence of attempts to negotiate an agreement, one or more of the parties may declare to the Commission a breakdown in negotiations;  parties are required to negotiate in good faith and the Commission may issue bargaining and good faith orders in the conciliation period;  following such a declaration, based on the evidence of attempts to negotiate an agreement, the Commission will provide assistance to the parties through mediation and conciliation.”. Those passages (the emphasis has been added) seem to me to confirm the meaning which s. 148(1)(a) will bear if construed literally. The report of the Industrial Relations Task Force chaired by Professor Margaret Gardner which preceded the Industrial Relations Act 1999 and to which reference may legitimately be had pursuant to s. 14(B)(1)(c) and (3)(b) of the Acts Interpretation Act 1954 (and to which the Minister referred) gives further support for a literal construction of s. 148(1)(a). At p. 109 the Committee observed: “There would be no opportunity for the parties to seek the assistance of the Commission prior to the expiry of the peace obligation. Following the expiry of this obligation and evidence of attempts to negotiate an agreement, one or more of the parties would be able to declare a breakdown in negotiations to the Commission.”. Further, at p.110 the Committee observed: “…the intervention of the Commission is only at the request of one or more of the parties.”. -- 2 of 3 -- 3 [Rule 136 of the Industrial Relations (Tribunals) Rules 2000 and Form 39 plainly assume that the literal construction is the correct construction, but having regard to the authorities gathered together in Pearce and Geddes, Statutory Interpretation Australia, 5th edition at para 3.37, it seems to me that neither the Rules nor the Forms may legitimately be used as an aid to interpretation in a case such as this]. Some attempt was made to rely upon the use of the verb “may” at s. 141 as an indication that a person may not be made a party to a certified agreement without the person’s consent. Section 141(1) provides: “A certified agreement may be made about the relationship between an employer and a group of employees (with all employees, or a category of employees) of the employer.”. Plainly enough, when used with reference to the subject matter of a certified agreement, “may” is used to indicate what subject matter is permitted. A subject matter cannot have a discretion to exercise. It seems to me that “may” must bear the same meaning when used with reference to the potential parties. I accept of course that arbitration cannot create a certified agreement. Arbitration can only create a “determination”. But that is about nomenclature, not about power. The materials before the Court on the appeal do not include the record of the attempt at conciliation. It is impossible to assess whether the implicit finding that the Appellant had attempted to negotiate a certified agreement was correct, on the facts, and, in any event, that is the wrong test. The function of determining whether or not the person requesting help has genuinely attempted to negotiate a certified agreement (and having regard to the language of s. 174 (3)(a) there may be some argument about whether “genuinely” may legitimately be “read in”), it is for the Commissioner into whose hands the request for conciliation comes. It is not a question for this Court. It is certainly true that such a decision may be reviewed on appeal, but it may be set aside only where shown to involve an error of law or an excess of jurisdiction. I allow the appeal. I remit the matter to the Commission to be dealt with accordingly to law. Dated 18 April 2005. D.R. HALL, President. Released: 18 April 2005 Appearances: Mr E. Moorehead of Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland, the Appellant. Mr A.A.J. Horneman-Wren instructed by Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers, for the Respondent. Government Printer, Queensland The State of Queensland 2005. -- 3 of 3 --