Bamford v MIM Holdings Limited [2002] QIRC 133 (2002) 171 QGIG 28

28 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 September, 2002 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 319 – representation of parties William Bamford AND MIM Holdings Limited (No. B1153 of 2002) COMMISSIONER ASBURY 2 September 2002 Industrial Relations Act 1999 s. 74 Application for reinstatement – s. 319 Representation of parties – Industrial Relations Act 1990 s. 45 Organisation coverage – Alteration to rules of Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland under subsections (4), (5) and (6) of s. 45 of the Industrial Relations Act 1990 in relation to employees of Mount Isa Mines Limited – Orders under s. 45 of Industrial Relations Act 1990 in relation to coverage of employees of Mount Isa Mines Limited – Whether alteration to rules and representation order under s. 45 of Industrial Relations Act 1990 is binding with respect to dismissed or former employee – Alteration to rules found not to operate with -- 1 of 6 -- 13 September, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 29 respect to dismissed or former employee – Order under s. 45 of the Industrial Relations Act 1990 in relation to coverage of employee organisations found not to preclude representation of dismissed or former employees by organisation of employees which would not have been entitled to represent employee while employed by Mount Isa Mines Limited – The term “industrial interests” in s. 45 of Industrial Relations Act 1990, s. 279 of Industrial Relations Act 1999 and orders made under those sections, is not synonymous with the term “industrial matter” as defined in those Acts – The term “employees” in an order made under s. 45 of the Industrial Relations Act 1990 and s. 279 of the Industrial Relations Act 1999 is not synonymous with the term “employee” as defined in those Acts – Application made by employee in his own right – Officer of Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland appointed in writing under s. 319 of Industrial Relations Act 1999 – Applicant entitled to be represented by an officer of the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland acting as agent in relation to his application for reinstatement. DECISION Overview On 19 July 2002, Mr William Bamford made an application for reinstatement under s. 74 of the Industrial Relations Act 1999 (the Act). Appended to Mr Bamford’s application, is a notice of appointment of agent pursuant to s. 319(a) of the Act in the form required by Rule 102 of the Industrial Relations (Tribunals) Rules 2000. That notice states that Mr Bamford has appointed Evan Moorhead of the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (AMEPKU) as his agent in the “above proceeding”. The case number of the proceeding does not appear on the notice, although the notice is headed “William Bamford AND MIM Holdings Pty Ltd”. This is not surprising given that when an application is filed it does not have a case number. The respondent in the application was said to be MIM Holdings Pty Ltd. Subsequently correspondence was received by MIM Holdings Limited advising that Mr Bamford’s employer was in fact Mount Isa Mines Limited. A conference in relation to the application was held on 30 July 2002 pursuant to s. 75 of the Act. Both prior to and at the conference on 30 July, Mount Isa Mines Limited contended that the AMEPKU was not lawfully permitted to represent Mr Bamford. Further, Mount Isa Mines Limited would not participate in a conciliation conference under s. 75 of the Act if the applicant was represented by any officer of the AMEPKU. With the agreement of the parties, a hearing was held on 2 August 2002, to determine if Mr Bamford was entitled to be represented by an officer of the AMEPKU, acting as his agent. At that hearing, Mount Isa Mines Limited was represented by Mr J.E. Murdoch SC and Mr Bamford was represented by Mr E. Moorhead of the AMEPKU. Submissions for Mr Bamford It was submitted that Mr Bamford was entitled to appoint Mr Moorhead, in his capacity as an officer of the AMEPKU, as his agent, in relation to the reinstatement application. The appointment had been duly made under s. 319 of the Act, and nothing in that section precluded it. In the alternative, it was submitted that if the Commission found that Mr Moorhead could not represent Mr Bamford in his capacity as an officer of the AMEPKU, then he could do so as an individual. Mr Moorehead also argued that the AMEPKU had no direct interest in the matter as a party principal, and was not seeking to use its appearance as agent for the applicant to make submissions on its own behalf. Termination of employment is a matter which cannot be included as part of an industrial dispute, and the AMEPKU was not seeking the arbitration of a dispute or the enforcement of any matter under an Award or Certified agreement to which it is not a party. Further, the AMEPKU was not seeking to act other than as an agent in relation to the application. Mr Bamford had standing to make the application under s. 74 in his own right and was the only person affected in the matter, other than the respondent. Mr Moorhead argued that for these reasons, the decision of then President, His Honour Justice Moynihan, in Gartrel and Smee v Federated Engine Drivers’ and Firemen’s Union of Employees, Queensland (1989) 132 QGIG 1421 which held that the Commission was not bound to accept an agent appointed in writing, could be distinguished from this case. In Gartrel, the persons seeking to be represented by an agent, were not parties to the alleged industrial dispute. At an earlier stage in the proceedings, the Commission had allowed an individual crane driver to be represented by an official of a federally registered union acting as his agent, on the basis that those earlier proceedings involved the dismissal of the particular crane driver, and not general issues such as award conditions. When the basis of the dispute had changed, and general issues such as award conditions and industry agreements had become the subject of the dispute, the Commission refused to allow the federally registered union to continue to appear in proceedings. In upholding the appeal, Justice Moynihan said: “The consequences of the Commission’s approach, which in my view was correct, was that those whom Mr Gartrell claimed to represent were not party to the proceedings in respect of which the ruling was made.”. In this case, Mr Bamford is a direct party to the application. It was further contended that Mr Bamford is eligible to be a member of the AMEPKU. The rules of the AMEPKU had been altered so that the AMEPKU was not eligible to enrol as members employees of Mount Isa Mines Limited in certain areas as a result of a decision of a Full Bench of this Commission in AWU v ETU and Ors (1995) 150 QGIG 405. Mr Moorhead conceded that as a result of that alteration, Mr Bamford was not eligible to be a member of the AMEPKU while employed by Mount Isa Mines Limited. However, as Mr Bamford was no longer an employee of Mount Isa Mines Limited, the exclusion had no application to him, and he was eligible to be a member of the AMEPKU pursuant to s. 531 of the Act, and to appoint Mr Moorhead in his capacity as an officer of the AMEPKU as his agent, in the unfair dismissal application. Mr Moorhead argued that Mr Bamford could not be considered forever to be an employee of Mount Isa Mines Limited and thereby ineligible to be a member of the AMEPKU. The very nature of the reinstatement application meant that the employment of Mr Bamford by Mount Isa Mines Limited had come to an end. Further, the nature of the demarcation order was to reduce “jockeying” between unions, and resultant industrial disputation, over employees of Mount Isa Mines Limited. Such disputation could not arise in relation to an unfair dismissal application. It was also contended by Mr Moorhead that the term “employees” was used in the representation order in the context of “employees of Mt Isa Mines Limited”, and there was no basis for finding that this phrase should also include persons who may previously have been employees of Mount Isa Mines Limited. Submissions for Mount Isa Mines Limited For Mt Isa Mines Limited, Mr Murdoch submitted that the rules of the AMEPKU had been altered by order of the Commission made on 18 October 1995 (the rules order), preventing the AMEPKU from enrolling as members, employees of Mount Isa Mines Limited, except as provided in the rules order. The alteration to the rules of the AMEPKU had reflected an order of a Full Bench of the Commission dated 12 September 1995 (the representation order) which provided that the AMEPKU could not represent under the Act, the industrial interests of employees of Mount Isa Mines Limited, engaged in certain areas. -- 2 of 6 -- 30 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 September, 2002 Mr Bamford had been employed in the position of boilermaker, pursuant to the Metallurgical Plants Area Mount Isa Mines Limited Certified Agreement 2000 (CA505/00). The AMEPKU has no right to represent employees within the scope of that Certified Agreement, and there has been a specific finding to this effect by the President in MIM Holdings Limited v AMEPKU (2000) 164 QGIG 316. As a consequence of the representation order and the rules order, the AMEPKU does not have the right to represent the industrial interests of Mr Bamford including in an unfair dismissal application, which is necessarily an application made under the Act. Further, unless Mr Bamford was a member of the AMEPKU as at October 1995, and has not at any time ceased to be a member, he does not have an entitlement to be or remain a member of the AMEPKU. It is also submitted for Mount Isa Mines Limited that the notice of appointment of agent filed with the reinstatement application, appoints “Evan Moorhead of Automotive, Metals, Engineering, Printing and Kindred Industries Union” as agent and indicates that the AMEPKU is the agent with the relevant officer being Mr Moorhead. All contact details are those of the AMEPKU. It was contended that the AMEPKU in defiance of the representation order, has previously attempted to represent employees whom they have no right to represent. It was further contended that what is meant by “represent” was exhaustively considered by the President in MIM Holdings Limited v AMEPKU (2000) 164 QGIG 316, where it was made clear that the exclusion prevents the AMEPKU from being legitimately concerned with the industrial interests of workers who are subject of the exclusion. In that decision, it was held that the AMEPKU lacked capacity to be a party to certified agreements which exclusively cover employees outside the AMEPKU’s eligibility rule. Applying the President’s reasoning, the representation order denies the AMEPKU the right to represent employees covered by the Certified Agreement, in unfair dismissal applications. Mr Murdoch also argued that it was inconsistent with the status of the AMEPKU as a registered organisation of employees, to provide resources for a purpose inconsistent with its rules, the Act and orders of the Commission. Further, the Commission should not allow its orders or legislation to be subverted by artificial means: Jaques v Queensland Police Service (1997) 155 QGIG 237; Shop Distributive and Allied Employees Association (Queensland Branch) Union of Employees v Retailers’ Association of Queensland Limited Union of Employers and Ors (1997) 155 QGIG 544. Clearly, Mr Bamford has either authorised the AMEPKU or Mr Moorhead to act on his behalf, or alternatively, Mr Moorhead in his capacity as an officer of the AMEPKU. Even if this was not the case, any appointment of Mr Moorhead is a sham, obviously designed to subvert the representation order and the rules order as well as the relevant provisions of the Act. To allow Mr Moorhead to represent Mr Bamford, even for the limited purpose of conciliation, would be to further that attempt. Mr Murdoch contended that the submission of the AMEPKU to the effect that once the employment relationship ended, the representation order and the rules order were defeated, was erroneous. This was because the definition of “employee” in Schedule 5 of the Act extends beyond the common law concept of employee, and includes a person who is usually an employee. Mr Murdoch argued that the term “employees” as it was used in the representation order, should be given the same meaning as the definition in Schedule 5 of the Act, so that the order barred representation of both employees of Mount Isa Mines Limited and persons usually employed by Mount Isa Mines Limited. In support of this proposition, it was also pointed out that the provisions of the Act dealing with unfair dismissal refer to dismissed employees as “employees”. In this regard, s. 74(3) of the Act provides that an application may be made by an employee or an organisation whose rules entitle it to represent the employee’s industrial interests. Further, the definition of “employee” in the Act is mirrored in the rules of the AMEPKU which provide at 1A that: “The Union shall consist of an unlimited number of persons who are employed or usually employed in or in connection with…trades, callings or branches…”. Mr Murdoch also drew the attention of the Commission to an apparent limitation in the AMEPKU rules with respect to persons employed in the industries or occupations within callings covered by the constitution of the AWU, as an indication that the limitation on the AMEPKU with respect to employees of Mount Isa Mines Limited, was not the only difficulty facing the AMEPKU, with respect to its eligibility to enrol Mr Bamford as a member. In relation to the AMEPKU or Mr Moorhead acting as an agent for Mr Bamford, Mr Murdoch said: “The other matter relied on is the attempt to say that the union as a corporation for the purposes of the Act is entitled to go out on the highways and byways as an agent. Commissioner, irrespective of what it might style its role to be, in my submission, whether it’s as an agent or whether it’s as a union operating as such, the function of representing Mr Bamford is still the function of representation and the Full Bench order contains an exclusive assignment of rights to, as a union, represent persons in certain areas. They’re exclusively given in the relevant area to The Australian Workers’ Union, but the flip side of the coin is that there is a prohibition on the Metal Workers Union representing employees in that category. Now the prohibition, I submit, Commissioner, is an absolute prohibition and it’s not open to the Metal Workers to say that, ‘We’re going to change t- shirts and we’re going to put on a new t-shirt that says we’re an agent and because we’ve changed our shirt we can step around the order of the Full Bench’. The prohibition does not confine itself in that way, nor does it provide any loophole which permits the registered body to style itself as agent and by so doing commence to do the very representational tasks which are denied it by a Full Bench order.”. The representation order in Mr Murdoch’s submission, removed the right of the AMEPKU to represent the industrial interests in any capacity, be it party principal or agent. The term “industrial interests” should be read so that it encompasses all industrial matters defined in Schedule 1 of the Act, and any matter under the Act, including unfair dismissal applications. Mr Murdoch also argued that the Commission was not bound to accept the appointment of an agent, particularly where the representation was not bona fide: Gartrel and Smee v Federated Engine Drivers’ and Firemen’s Union of Employees, Queensland (1989) 132 QGIG 1421 at 1423, and said that the appointment of Mr Moorhead in this case was also not bona fide. Conclusions The central issue for determination is whether the terms of the rules order and/or the representation order prevent Mr Moorhead in his capacity as an officer of the AMEPKU, or as an individual, from representing Mr Bamford. It is convenient to start with the provisions of the Act dealing with reinstatement applications and representation of parties in proceedings. The provisions of the Act under which applications may be made for reinstatement, are found in s. 74. Relevantly, s. 74(3) provides that an application may be made by an employee, or with the employee’s consent, an organisation whose rules entitle it to represent the employee’s industrial interests. -- 3 of 6 -- 13 September, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 31 The application under s. 74(3) subject of this proceeding, has been made by Mr Bamford and not by the AMEPKU. Mr Bamford is a party to the application in his own right. Given that the AMEPKU has not made the application, the requirements in s. 74(3) (b) are not triggered, and I am not required to determine whether, for the purpose of s. 74(3)(b), the AMEPKU is entitled to represent the industrial interests of Mr Bamford. The provisions of the Act dealing with representation of parties, are found in s. 319. Section 319(1) is in the following terms: “319 Representation of Parties (1) In proceedings, a party to the proceedings, or a person ordered or permitted to appear or to be represented in the proceedings, may be represented by – (a) an agent appointed in writing; (b) if the party or person is an organisation – an officer or member of the organisation.”. Section 319 goes on to provide a number of restrictions on the representation of parties to proceedings by lawyers. As a party to the application under s. 74(3), Mr Bamford has appointed Mr Evan Moorhead of the AMEPKU as his agent pursuant to s. 319(a) for the purpose of that application. Mr Moorhead stated that he is not a lawyer, and the respondent did not contest this statement. Prima facie the applicant has validly appointed Mr Moorhead in his capacity as an officer of the AMEPKU, as agent for the reinstatement application. However, it is also necessary to examine the rules order and the representation order, to determine whether they bar Mr Moorhead as an officer of the AMEPKU or as an individual, from representing the applicant. The history of these orders can be summarised as follows: • In 1993-94 applications were made under s. 45 of the then Industrial Relations Act 1990 by The Australian Workers’ Union, Queensland (B149 of 1993); Mount Isa Mines Limited (B234 of 1993) and the Australian Council of Trade Unions Queensland (B81 of 1994) on behalf of a number of affiliated unions including the Automotive, Metals and Engineering Industrial Union of Employees seeking various competing orders in relation to representation rights with respect to employees of Mount Isa Mines Limited; • On 13 October 1994 a Full Bench of the Commission released a decision in relation to these applications which appears at 147 (2) QGIG 932; • As part of that decision, the Full Bench also made an order, known as the MIM Lease Representation Order (the representation order) which can be found at 959 – 960. • As a result of an appeal from that decision, the Industrial Court in a decision of 8 May 1995, reported at 148 QGIG 270, held that the Full Bench had directed a nominated Commissioner to make an alteration to the rules of certain unions in a manner which was beyond power, and remitted the matter to the Full Bench for further consideration; • On 12 September 1995, the Full Bench by a decision reported at 150 QGIG 405, adopted the findings of fact in the decision of 13 October 1994, and made a further MIM Lease Representation Order (at 406-407); • Section 10 of that further order stated that the rules of a number of unions required alteration, and referred the matter to a nominated Commissioner; • In November 1995, His Honour Justice McKenzie, then President of the Industrial Court dismissed a further appeal instituted by the Federated Engine Drivers’ and Firemens’ Association of Australasia Queensland Branch, Union of Employees and the Electrical Trades Union of Employees of Australia, Queensland Branch, where it had been contended that the Full Bench had misconceived its role on the remitter. This judgment is reported at 150 QGIG 1403. As a result of the decision of the Full Bench of 12 September 1995 to refer rules alterations to a nominated Commissioner, a decision and order altering the rules of a number of unions, including the AMEPKU was made by then Chief Commissioner now President Hall on 18 October 1995. The decision and the order are reported at 150 QGIG 1123. The order then made with respect to the rules of the AMEPKU, which appears at 1128-9, was in the following terms: “5. The rules of the Automotive, Metals and Engineering Industrial Union of Employees, Queensland be altered by inserting the following new subrule at the end of subrule 1F: ‘1G Notwithstanding the foregoing provisions of this rule, all employees of Mount Isa Mines Limited who are engaged in the following Divisions or Departments…shall be eligible for membership in the Union. But all employees of Mount Isa Mines Limited other than those described in this subrule, shall not be enrolled as members of the union’. ”. I am unable to accept the respondent’s submission that the rules order should be construed so as to bar a former employee of Mt Isa Mines Limited, from joining the AMEPKU. Mr Bamford is a boilermaker. The respondent agreed that it was in this capacity that Mr Bamford was employed. Although the respondent raised a question about Mr Bamford’s eligibility to be a member of the AMEPKU on a ground other than the rules order, it was not seriously contested that but for that order, Mr Bamford would be eligible to be a member of the AMEPKU. If the respondent’s argument is taken to its logical conclusion, the effect of the rules order would be to prevent the AMEPKU from enrolling as a member, any person who had been at any time ineligible to join the AMEPKU because of the rules order, regardless of the fact that the person was no longer employed by Mt Isa Mines Limited. In my view, it is apparent from the terms of the rules order itself that it was not the intention that it operate to remove the eligibility of persons who are no longer employed by Mount Isa Mines Limited, to join the AMEPKU. The rules order clearly refers to “employees of Mount Isa Mines Limited” engaged in certain Divisions or Departments. The intent of the rules order can also be seen from the decision of President (then Chief Industrial Commissioner) Hall when upon reference from the Full Bench which had made the representation order, he determined to alter the rules of the AMEPKU. In that decision, reported at 150 QGIG 1123 at 1124-1125, the President distilled a number of points from decisions of the Australian Industrial Relations Commission, in relation to s. 118A of the then Industrial Relations Act 1988 (Cth), which were relevant to consideration of the power under s. 45 of the then Industrial Relations Act 1999 (Qld). One of these points (the second point) identified that the primary concern of s. 45, was representation rights, and that the power to alter rules is to supplement and support the exercise of the powers in that section: Re FMWU (1992) 40 IR 407 at 412, per Williams DP. Another point (the fourth point) was that in discharging the function of determining whether a Union’s rules should be altered, the nominated Commissioner is not to be concerned with the broad question of whether alteration of rules is desirable. The role of the nominated Commissioner was to discern the precise matter being referred and the intention of the Full Bench in referring it, and then within those limitations, exercise the power conferred by s. 45(5), and determine the form of the rule alterations required. The intention and purpose of the Full Bench which made the representation order, was said by the President to be clearly expressed in the decision which accompanied that order. In that decision, reported at 147 (2) QGIG 932 at 959 the Full Bench noted that Mount Isa Mines Limited had been restricted in its ability to move forward through the implementation of change, by being required to negotiate with five unions on virtually every issue, and had been confronted with a different agenda from each of the unions with which it has had to deal. Passages with respect to this intention on the part of the Full Bench are set out in the President’s decision, reported at 150 QGIG 1123 at 1125. -- 4 of 6 -- 32 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 September, 2002 With respect to the rules alterations, the Full Bench said that “major surgery” was necessary, and that any change must impact on existing as well as potential employees. There is nothing in the decision to suggest that the alteration to the rules of the AMEPKU, as a result of the representation order, was intended to operate with respect to former employees of Mount Isa Mines Limited. To construe the rules order in the manner contended for by the respondent, would take the operation of the rules order beyond its terms and the manner in which those terms were intended to operate. On balance, and on the basis of the material before me, I am not satisfied that Mr Bamford is currently ineligible to be a member of the AMEPKU, by virtue of the rules order. The further question then arises, of whether the representation order prevents Evan Moorhead of the AMEPKU from acting as an agent for Mr Bamford in relation to the reinstatement application. The representation order, insofar as it applies to the AMEPKU, is in the following terms: “(6) The Automotive, Metals and Engineering Industrial Union of Employees, Queensland does not have the right to represent under the Act the industrial interests of employees of Mount Isa Mines Limited who are engaged in:– (a) all activities in the Copper and Zinc/Lead Streams (except those carried out by employees from the Surface Workshop Department of the Copper Stream and the Fans and Refrigeration Department of the Copper Stream; (b) all activities in the KSCO; and (c) the Control System Maintenance Department of the Engineering Division. (7) The Automotive, Metals and Engineering Industrial Union of Employees, Queensland does not have the right to represent under the Act the industrial interests of employees of Mount Isa Mines Limited who are engaged in the following Divisions or Departments:– (a) Administration Division; (b) Research and Development Division; (c) Personnel Division; (d) Supply Department; and (e) Safety and Security Department.”. The representation order was made pursuant to s. 45 of the then Industrial Relations Act 1990, which provided at subsection (1) that: “45. (1) A Full Bench may, on the application of an industrial organisation, an employer or the Minister, make the following orders – (a) an order that an industrial organisation of employees is to have the right, to the exclusion of another industrial organisation or other industrial organisations, to represent under this Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation; (b) an order that an industrial organisation of employees that does not have the right to represent under this Act the industrial interests of a particular class or group of employees is to have that right; (c) an order that an industrial organisation of employees is not to have the right to represent under this Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation.”. In my view, the intent of the representation order, made as it was under s. 45(1) of the Industrial Relations Act 1990, was to remove the right of the AMEPKU to represent the industrial interests of individual employees as members of a group or a class. That group or class is defined in the representation order as “employees of Mount Isa Mines Limited” engaged in nominated areas. Mr Bamford, as a former employee is no longer within this group or class, and the representation order cannot operate with respect to the right to represent him. I am also unable to accept the argument that the term “employees of Mount Isa Mines Limited” should be read so that “employees” means persons formerly employed by Mount Isa Mines Limited. The definition of “employee” in s. 6 of the Act refers to a person whose usual occupation is that of an employee in a calling. The definition of employee also provides that for the purpose of proceedings for recovery of amounts, an employee is a former employee. The term “calling” is defined in Schedule 5 to the Act to mean a craft, manufacture, occupation, trade, undertaking or vocation or a section of any of these. With the greatest of respect to the significance of Mount Isa Mines Limited as an employer, Mr Bamford cannot be said to have been employed in a calling, simply by virtue of being employed for some time by Mount Isa Mines Limited. The definition of “employee” in s. 6 of the Act, relates to Mr Bamford’s reinstatement application, insofar as at the time he was dismissed he was employed in a calling, that of boilermaking, and his usual occupation was that of an employee in that calling. His capacity to make a reinstatement application is derived from the fact that he is usually employed in a calling and was so employed at the time of his dismissal, and not from the specific identity of his employer. The identity of Mr Bamford’s employer is relevant to the issue of respondency to the application, not to Mr Bamford’s capacity to make it, and to appoint as his agent in that application, an officer of an organisation of which he is a member. There was no definition in s. 45, or elsewhere in the Industrial Relations Act 1990, of the term “industrial interests”. This is also the case with respect to s. 279 of the current Act. I can see no basis for holding that the terms “industrial interests” and “industrial matters” are synonymous. The Industrial Relations Act 1990, provided a detailed and comprehensive definition of the term “industrial matter” at s. 6. Such a definition is now to be found in the current Act at Schedule 1. If the legislature had intended that an order with respect to the rights of an organisation to represent a particular class or group of employees operated with respect to industrial matters, it would have been simple to include in s. 45 of the Industrial Relations Act 1990, a reference to what was then a well established and defined term. It is more likely, given that the legislative provisions about coverage, were designed to regulate the activities of industrial organisations, that the term “industrial interests” was used to describe the activities of those organisations as parties principal. It is apparent from the reasons given by the Full Bench in determining to make the representation order in the first place, that the order was directed at the role of unions in their capacity as parties principal, and the impact that the multiplicity of unions was having on the operations of Mount Isa Mines Limited. The decision of His Honour Justice Moynihan in Gartrel and Smee v Federated Engine Drivers’ and Firemen’s Union of Employees, Queensland (1989) 132 QGIG 1421 highlights this distinction. This distinction can also be found in the decision of the President in MIM Holdings Ltd v Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (2000) 164 QGIG 316. In that decision at 318, the President observed that because the employees referred to at s. 142(b)(1) may be future employees in a new business, there is some difficulty in reading “represent” as “represent as an agent”. At 320, the President said: “And deprived as the AMWU is, of the capacity to represent the industrial interests of the employees in the Mining and Metallurgical Plants Areas of MIM, AMWU may not be party principal to the proposed agreements.”. During the hearing in relation to this matter, I also referred the parties to a decision made on transcript by Bloomfield C on 12 December 1995 in B1714 of 1995. In that matter, two union officials sought to appear on behalf of individual employees of Mount Isa Mines Limited, who had purported to -- 5 of 6 -- 13 September, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 33 appoint those officials as their agents. The argument on that occasion on behalf of Mount Isa Mines Limited in opposition to that appearance, was that the employees who had purported to appoint the officials as their agents, were not parties to the matter which was before the Commission. Further it was argued that documents of agency do not make an individual a party to proceedings (Transcript p 7). In rejecting the attempt by the officials to appear in the proceedings, Bloomfield C held that to allow the representation, would be to run counter to the representation order, and that the officials concerned could not be separated from the organisations in which they held office. In the matter of Mr Bamford’s reinstatement application, the AMEPKU is not acting in its capacity as party principal. Mr Bamford as a party to the application has appointed Mr Moorhead, an officer of the AMEPKU to act as his agent in the application. I am of the view that the AMEPKU representation of a former employee of Mount Isa Mines Limited, as agent in a reinstatement application, is not precluded by, and does not subvert the representation order. Both the rules order and the representation order remain binding on the AMEPKU and all relevant persons who are currently employed by Mount Isa Mines Limited, and operate in accordance with their terms. Accordingly, Mr Bamford may be represented in his reinstatement application, B1153 of 2002, by Mr Evan Moorhead of the AMEPKU, in accordance with the Notice of Appointment of Agent form 22, completed by Mr Bamford and appended to that application. It should be noted that this decision deals only with the issue of an application made by a former employee of Mount Isa Mines Limited, which that former employee was entitled to make in his own right. Dated this second day of September 2002. I.C. ASBURY, Commissioner. Released: 2 September 2002 Appearances: Mr E. Moorhead of the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland for the Applicant. Mr J.E. Murdoch, SC for the Respondent. -- 6 of 6 --