Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v Woolworths Limited & Ors [2002] QIRC 45 (2002) 169 QGIG 305

12 April, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 305 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 156 – application for approval of certified agreement Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees AND Woolworths Limited and Others (No. CA50 of 2002) WOOLWORTHS QUEENSLAND SUPERMARKET – CERTIFIED AGREEMENT 2001 COMMISSIONER BLOOMFIELD 28 March 2002 Certified agreement – Agreement certified – Application by ALHMWU to become a party – Objection by Woolworths – Whether Commission able to consider ALHMWU’s application – Proceedings re-opened – Application by ALHMWU to be heard on 8 April 2002 – All parties to Certified Agreement may present submissions. DECISION This decision relates to an application by the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees (ALHMWU) to become a party to the Woolworths Queensland Supermarket – Certified Agreement 2001. More particularly, the decision relates to the Commission’s powers to re-open proceedings to allow ALHMWU to pursue its application in circumstances where the Commission has formally certified the Agreement. Background On 31 January 2002 an industrial officer of the Retailers’ Association of Queensland Limited, Union of Employers (RAQ) filed an application for certification of the Woolworths Queensland Supermarket Certified Agreement 2001. The application was given the number CA50 of 2002. The Agreement showed the parties as Woolworths Limited and The Australian Workers’ Union of Employees, Queensland (AWU). The application was listed for hearing on Tuesday 12 February 2002. On that date Ms L. Vanderstoep of RAQ appeared for Woolworths Limited. Ms T. Lane appeared for AWU. Mr M. Brady, representing Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees (AMACS) sought leave to appear and present submissions in support of that Union’s claim it become a party to the Agreement pursuant to the provisions of s. 156(j) of the Act. Leave to appear was granted. Mr R. Robinson of ALHMWU also sought to appear. He said the ALHMWU had made contact with Woolworths in an attempt to negotiate a certified agreement in November 2001. He also said the Union had “hundreds of members . . . within the stores almost right throughout Queensland, at least, as -- 1 of 3 -- 306 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 12 April, 2002 far north as almost to Rocky. So as far as the . . . specifications in the Act and as far as 156(j) we believe that we have the right to intervene and become bound by this agreement. Certainly the union has been bound in previous certified agreements with Woolworths and . . . we have worked in a cooperative way in the past and we’re perplexed in relation to why we’ve been excluded as a party to the agreement after initially notifying Woolworths in November 2001 . . . ”. At that point I asked Mr Robinson whether the proposed geographical operation of the Agreement impacted upon his application to be bound. Mr Robinson responded: “Well, we’d have to seek further advice on that. That’s something that’s slipped by. We may need to re-examine our options in relation to being a party bound . . . certainly on the surface . . . that would cross the demarcation border (between the two unions). We weren’t aware. We thought that (the agreement) would mirror the previous certified agreement in 1998 which didn’t specify those (boundaries).”. I went on to indicate that, having regard to the traditional argument between ALHMWU and the AWU about their respective coverages, leave would not be granted for Mr Robinson to appear “today”. I then said “I will defer that matter for further consideration should the ALHMWU wish to raise argument about that matter and seek leave to become a party to the agreement.”. The Commission then turned its mind to the other requirements of s. 156 including whether a valid majority of relevant employees had approved the Agreement and whether the Agreement passed the no-disadvantage test. The Commission also raised with the parties, and resolved, a number of other issues including typographical errors, incorrect references to the Act and the way that the application clause of the Agreement was expressed. The Commission also decided to add Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees as a party to the Agreement as required by s. 156(j). Finally, I stated: “I will make those changes to the agreement as they have been recorded (above). I will certify the agreement as at today’s date and note that the agreement operates from . . . the 8th of November.”. Subsequently, on 27 February 2002, correspondence was received from ALHMWU to the effect that “LHMU still wishes to pursue being party bound by the Agreement as per section 165 (sic) of the Queensland Industrial Relations Act.”. I listed the matter again on 11 March 2002 to deal with that request. At that time Mr Robinson, for ALHMWU, renewed the Union’s request to become a party to the Agreement pursuant to s. 156 of the Act. He said the Union was a party to the Baking, Processing, Distribution and Manufacturing Industry Award – Northern Division which was an award which bound the employer party to the Agreement in the area of the Agreement’s operation. Accordingly, Mr Robinson said, the Union had the right to become a party to the Agreement in accordance with the provisions of s. 156(j). The application was opposed by Ms S. Lindsay who now appeared for Woolworths Limited in lieu of Ms Vanderstoep, who had taken ill. Ms Lindsay said the Agreement had been certified on 12 February 2002 after the parties agreed to a number of typographical and other minor changes to the proposed Agreement. Ms Lindsay said that as the Agreement had been certified there was no provision, under s. 169 of the Act, for the Agreement to be amended. In order to become a party to the Agreement ALHMWU would need to make an application under s. 166 of the Act. After hearing from Ms Lindsay I indicated to Mr Robinson that whilst I had attempted to approach the proceedings on 12 February in a pragmatic way, rather than to hold up or delay the certification process, my decision to formally certify the Agreement may have prejudiced ALHMWU’s rights to be heard. I indicated I would consider the matter further before making a ruling on ALHMWU’s application and Woolworths’ opposition to it. Conclusion At first blush, it appears the Commission’s attempt to approach the certification process in a pragmatic way – i.e. without causing unnecessary inconvenience to the parties – may have caused a miscarriage of justice to ALHMWU. However, when the provisions of the Industrial Relations Act 1999 are read as a whole, ALHMWU’s rights appear to have been reserved. Section 280 of the Act does not allow the Commission to re-open proceedings of its own motion. Proceedings which are about a certified agreement may be re-opened upon application made by a party to the proceedings (s. 280(b)). The question which arises for consideration is whether ALHMWU is “a party to the proceedings”. In my view, ALHMWU is a party to the proceedings. Section 155 of the Act grants all relevant employee organisations a right to be heard on an application for certification of an agreement. A “relevant employee organisation” is, inter alia, an employee organisation that is bound by an award that binds the employer or would bind the employer if it were not for the operation of, for example, a certified agreement. ALHMWU is an employee organisation bound by the Baking, Processing, Distribution and Manufacturing Industry Award – Northern Division. The Woolworths Queensland Supermarket – Certified Agreement 2001 covers employees who would otherwise be bound by that Award. Accordingly, the Union had an entitlement to be heard on the application for certification when it came before the Commission on 12 February 2002. As such, ALHMWU was a party to the proceedings. Although ALHMWU sought leave to appear, it was not necessary to obtain leave. The Union could, and in reality did, appear of right as a party. Although precise words were not used, the transcript clearly records the understanding that proceedings would be resumed if ALHMWU made an approach to have the matter re-listed for the purposes of hearing its application to become a party to the certified agreement pursuant to s. 156(j) (and, arguably, s. 166(2)). The transcript records that the issue of ALHMWU’s status would be heard and determined later, if it was pressed. The Agreement was clearly certified on that understanding. Formal certification of the Agreement did not close out the possibility of the matter being resumed (i.e. re- opened) to hear ALHMWU’s argument. There being no statutory bar to the matter being re-opened, I determine that the above factual background and understanding as to process is an appropriate circumstance to justify re-opening the proceedings. Accordingly, I propose to re-open the proceedings related to CA50 of 2002 to allow ALHMWU to press its argument that it should become a party to the Woolworths Queensland Supermarket – Certified Agreement 2001 pursuant to the provisions of s. 156(j). Although ALHMWU’s letter of 22 February 2002 is not an Application in the required form, I propose to treat it as a formal application by waiving the requirement for the application to be made in accordance with the Rules, pursuant to the powers vested in me at s. 329(k). -- 2 of 3 -- 12 April, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 307 The application will be heard at 2.00 p.m. on Monday 8 April 2002. All parties to the Agreement will be allowed to present argument in support of, or in opposition to, ALHMWU’s application. The Commission determines and orders accordingly. A.L. BLOOMFIELD, Commissioner. Appearances:– Ms L. Vanderstoep, and later Ms S. Lindsay, of the Retailers’ Association of Queensland Limited, Union of Employers, for Woolworths Limited. Mr R. Robinson for the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees. Ms T. Lane for The Australian Workers’ Union of Employees, Queensland. Mr M. Brady for the Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees. Released: 28 March 2002 -- 3 of 3 --