Application by the Retailers’ Association of Queensland Limited, Union of Employers for a new set of rules [2002] QIRC 26 (2002) 169 QGIG 255

255 Vol. 169 THURSDAY, 28 MARCH, 2002 No. 13 ########################################################################################################################## # QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 474 – approval for eligibility rule amendment Application by the Retailers’ Association of Queensland Limited, Union of Employers for a new set of rules (No. U28 of 1999) VICE PRESIDENT LINNANE 20 March 2002 Application to insert eligibility rule – Opposition by QRTSA – Previous finding that parties presented no evidence supporting or opposing application and direction issued that evidence be filed by RAQ if they wished to proceed – Affidavits filed by RAQ – Objection by QRTSA withdrawn – Given submissions of QRTSA on previous occasion Commission required RAQ deponents for questioning – RAQ deponents failed to make themselves available for questioning – Material filed in support of application therefore not considered including material facts sworn in application – Further adjournment not granted – Tardiness of RAQ in pursuing application – Applicant does not meet criteria for approval of eligibility rule – Application dismissed – Industrial Relations Act 1999 s. 474. -- 1 of 4 -- 256 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 28 March, 2002 DECISION [14] This is an application by the Retailers’ Association of Queensland Limited, Union of Employers (RAQ) seeking to amend or alter its Rules by including an eligibility rule in the following terms:– “6.0 INDUSTRY The Industry in connection with which the Association is formed is the retail trading industry, which includes any trade, business or undertaking in or allied with the business of shopkeepers, storekeepers or sellers by retail of articles, goods, material or provisions of any kind. 7.0 MEMBERSHIP Any person, firm or company which is an employer or other person carrying on business in the industry in the State of Queensland shall be eligible for membership if the applicant agrees to comply with these rules and is not of bad character.”. [15] This application has had a long history. It is necessary to set out this history given my decision to refuse a further adjournment of the matter on Monday 18 March, 2002 and to ultimately dismiss the RAQ’s application. [16] This application was filed by the RAQ on 8 October, 1999. On 14 October, 1999 the Industrial Registrar pursuant to regulation 16 of the then Industrial Organisations Regulation 1997 corresponded with the RAQ advising that the alteration to the Rules was to be advertised by 29 October, 1999. By letter dated 4 November, 1999 the RAQ advised the Industrial Registrar of compliance with that direction. Objectors had thirty-five (35) days to lodge any Notice of Objection to the proposed rule change. [17] By correspondence dated 8 December, 1999 the RAQ asked the Industrial Registrar for a list of objectors to its application so that they could have discussions with those organizations. The RAQ was advised shortly thereafter that objections were received from the Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) (QRTSA), the Hardware Association of Queensland, Union of Employers, the Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and the Queensland Friendly Societies Pharmacies Association, Industrial Organisation of Employers. [18] It was not until 5 September, 2000 that the RAQ advised the Industrial Registrar that they were unable to resolve the objection lodged by the QRTSA and asked that the matter be set down for hearing. The RAQ was notified on 14 September, 2000 of a Directions Hearing scheduled for 26 September, 2000. At that Directions Hearing the Commission was prepared to give directions for the scheduling of the QRTSA objection. Robert Walker for the RAQ on that date advised the Commission that there was “no urgency … in the Association having the matter brought on”. Mr Walker then asked for a further Directions Hearing date towards the end of October, 2000. The matter was then scheduled for a Directions Hearing on 30 October, 2000. [19] On 30 October, 2000 the RAQ sought a hearing date and the matter was set down for hearing on 11 December, 2000 after Mr Walker advised the Commission that he was unavailable during November, 2000. On 11 December, 2000, the scheduled hearing date, correspondence was received from the RAQ seeking to adjourn the hearing on the basis that the RAQ wished to have further discussions with the QRTSA. The matter proceeded to a hearing where the RAQ made application for an adjournment. Given the lateness of the correspondence the hearing resumed on 11 December, 2000 and further argument was heard on the adjournment application. As a result of the RAQ’s request the matter was adjourned on this occasion. It was further decided that the matter would await correspondence or contact from the RAQ as to when they wished the matter to be listed again. [20] Nothing further was heard from the RAQ until correspondence was received in the Registry on 9 May, 2001 requesting that the matter be set down for hearing. Directions were issued on 15 May, 2001 requiring the RAQ and any Objectors to file and serve witness statements and outline of submissions by certain dates and for the matter to be heard on 19 June, 2001. No witness statements were filed by the RAQ. [21] On the scheduled hearing date I simply had submissions from the RAQ supporting its application. In Application by the Retailers’ Association of Queensland Limited, Union of Employers for a new set of rules 167 QGIG 252 released on 26 June, 2001 I stated that:– “Given the lack of any evidence, either in support of the application or in opposition to it, I am not prepared at this time to determine the matter. Should the RAQ wish to further pursue its application before the Commission I will require that it file appropriate material in support of the application. Once such material is filed and served on the QRTSA I will then issue further directions for the conduct of this matter.”. [14] I could easily have found against the RAQ application on that occasion given that there was no evidence presented in support. It is for the applicant in such a proceeding to put sufficient evidence before the Commission to warrant the granting of such an application. Instead of dismissing the RAQ application at that time I gave the RAQ a further opportunity of supporting its application with some evidence rather than making submissions from the bar table about matters which were not the subject of any evidence. [15] The RAQ did nothing to pursue its application between release of that decision on 26 June, 2001 and 9 January, 2002 when it filed two Affidavits in support of its application. One Affidavit was from Patrick McKendry, the Executive Director of the RAQ, and one was from Helen Mackie, the Treasurer of the RAQ. [16] Two days later I caused to be issued a Further Directions Order requiring any Objector to file statements of evidence from all witnesses to be relied upon and listing 30 January, 2002 as the date of hearing of the RAQ’s application. Subsequently the hearing date was adjourned for two days to 1 February, 2002. [17] On 30 January, 2002 a letter was faxed to the Industrial Registrar from the QRTSA advising that it was their “intention to withdraw” their “opposition to the application”. The QRTSA further advised that their “position” would be detailed at the hearing on 1 February, 2002. [18] At 1.10 p.m. on 31 January, 2002 Solicitors for the RAQ faxed correspondence to my Associate which relevantly provided that:– “We note that our client will rely on two affidavits in support of its application. The deponents are Mr Patrick McKendry, the Executive Director of our client and Ms Helen Mackie the Treasurer. We understand that the QRTSA has withdrawn its objection to our client’s application. We have no reason to believe that either deponent are required for cross examination. In those circumstances it was not our intention to have Mr McKendry or Ms Mackie available for the Commission hearing tomorrow. Could you please advise us whether this is acceptable to Vice President Linnane.”. [14] Because of work commitments on that day the correspondence only came to my attention at about 5.30 p.m. on 31 January, 2002. I telephoned the Solicitors for the RAQ at approximately 5.45 p.m. on that day and spoke with the Solicitor handling the matter and advised her that I required both deponents to be at the hearing on the following morning. -- 2 of 4 -- 28 March, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 257 [15] On 1 February, 2002 neither deponent was in the Commission precinct. [16] On 1 February, 2002 I asked the QRTSA to advise me what had changed since 19 June, 2001 when the matter was last before me, to bring about a change in their position. I was advised that the QRTSA did not want to “go on record in somewhat of a debate with the RAQ on what association is better” and further they did not “want to get into a public debate with the RAQ over what association had better services to offer members”. As I indicated on that occasion such a debate was always the likely outcome of opposition to eligibility rule applications and this should have been known to the QRTSA prior to 19 June, 2001. The QRTSA had made certain submissions before me on that occasion, which if supported by evidence, may have warranted a finding that the members sought to be covered by the RAQ eligibility rule “could conveniently belong” to the QRTSA and that the QRTSA could “effectively represent them in a way consistent with the objects of” the Industrial Relations Act 1999 (Act). I was thus concerned to determine what had caused the QRTSA to withdraw its objection. [17] During the course of the hearing on 1 February, 2002 Ms Milner, solicitor for the RAQ, advised that an agreement had “only recently” been reached between the RAQ and the QRTSA. I was however advised that at the time of hearing the agreement had not been finalised and had not been signed by either party. I then sought to adjourn the hearing to enable the agreement to be finalised and placed before me. [18] As at 1 February, 2002 I had no hearing dates available until 5 April, 2002 and advised the parties that I would issue directions for the QRTSA to file affidavit material and would schedule the hearing for 5 April, 2002. I did this after giving a chronology of the delays on the part of the RAQ in progressing this matter and forming the view that this was not an urgent matter. On hearing that the first available date of hearing was 5 April, 2002 Gary Black, an industrial officer with the RAQ, who was seated at the bar table beside Ms Milner during this proceeding, displayed obvious anger. Ms Milner then requested an earlier date for the resumed hearing. I further advised that 5 April, 2002 was the first available hearing date that I had for non-urgent matters. I did however advise that if dates became available in the meantime that I would list the matter at an earlier date. I also issued directions for the QRTSA to file material, including the agreement reached between the RAQ and the QRTSA, by 8 March, 2002. [19] A Full Bench matter of which I was a member was subsequently adjourned and an earlier hearing date became available. Given that the QRTSA had been given until Friday 8 March, 2002 to comply with the direction to file and serve material I re-listed the hearing of this application for Wednesday 13 March, 2002. In compliance with the Further Directions Order the QRTSA filed an Affidavit of Ian Baldock on 8 March, 2002. Attached to that Affidavit was a copy of the agreement reached between the RAQ and QRTSA. [20] Upon receipt of the Directions Notice advising of the re-scheduling of the hearing date to 13 March, 2002 the QRTSA telephoned my Associate to advise that Mr Baldock was unavailable to attend the Commission hearing on 13 March, 2002. After reading the Affidavit of Mr Baldock I caused the QRTSA to be notified that I did not require Mr Baldock for questioning at the hearing on 13 March, 2002. [21] On 13 March, 2002 the RAQ sought to rely upon the affidavit material filed on 9 January, 2002 and proceeded to have their application determined. When I asked for Mr McKendry to take the witness box I was advised that neither Mr McKendry nor Ms Mackie were available because of the notification of the listing was only received on Friday 8 March, 2002. Unlike the QRTSA there was no communication with the Registry nor my Associate to the effect that neither witness was available on 13 March, 2002. No reason was given for their non-attendance. [22] Once again I adjourned the hearing of the matter. I gave the parties the option of Friday 15 March, 2002, Monday 18 March, 2002 or Tuesday 19 March, 2002. The only objection raised as to the dates was an objection from Mr Matley for the QRTSA who indicated that he had difficulty with Friday morning. The matter was scheduled for Monday 18 March, 2002 in the afternoon. [23] On Friday 15 March, 2002 my Associate received a telephone call from Solicitors for the RAQ advising that correspondence would be faxed seeking a further one month adjournment of the matter. That correspondence was faxed at 9.50 a.m. on 18 March, 2002 and provided as follows:– “We refer to our discussion with your Associate on Friday, 14 [sic] March, 2002 and confirm that following discussions between our client and the QRTSA we are instructed to ask the Commission to adjourn this application for a period of 4 weeks. This is to allow further discussions between RAQ and QRTSA about the evidence to be relied upon [by] the RAQ in relation to this matter. The discussions arise from the agreement concerning the matter and which is attached to Mr Balldock’s [sic] statement which has now been filed with the Commission. Please provide us with your response at your earliest convenience.”. [14] Later that morning Solicitors for the RAQ telephoned my Associate. I heard my Associate’s response to the telephone enquiry. It was that “the matter will proceed as scheduled today”. [15] At the commencement of the hearing I indicated to the parties that I was not prepared to grant an adjournment based on the material contained in the facsimile received from Solicitors for the RAQ. I did however indicate that I was prepared to hear further argument on the adjournment application. After hearing those submissions I refused the application for an adjournment. [16] I then asked for Mr McKendry to take the witness box. I was advised that Mr McKendry was not available. I asked if Mr Bernard Brooks was available to give evidence. I was informed that he was not available. As this application is one relating to the rules of an industrial organization the application and therefore the Affidavit supporting the application was required to be signed by the President and the Executive Director of the RAQ. Mr Brooks was the President of the RAQ at the time of filing the application and Mr McKendry its Executive Director. I then asked was Ms Mackie available for questioning. I was further advised that she was not available. [17] It should be noted that in the argument for an adjournment the unavailability of deponents to affidavits was not raised. [18] On three occasions Mr McKendry and Ms Mackie were required for questioning. On three occasions they failed to make themselves available to the Commission. This is in an application where an organization is seeking to have its rules altered or amended. In this case the RAQ by making such an application acknowledges that it does not have an eligibility rule. An eligibility rule is a requirement for registration as an industrial organization. Yet the Executive Director and the Treasurer of this organization seeking conformity with registration requirements sees it as appropriate to fail to comply with the Commission’s requirements that they make themselves available for questioning. No satisfactory explanation has been given for the failure of either person to comply with my requirement. In my view such behaviour is not the type of behaviour one would expect from a registered organization, let alone a registered organization seeking to argue that its members could more conveniently belong to the RAQ rather than the QRTSA as the RAQ could more effectively represent such members. [19] Having failed to make himself available for questioning I indicated that I would not take into consideration the material contained in Mr McKendry’s Affidavit filed on 9 January, 2002. Given that neither Mr McKendry nor Mr Brooks had made themselves available the material facts relied upon to support the application could also not be tested. One of the statements in the material facts is that the “Association has acted in good -- 3 of 4 -- 258 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 28 March, 2002 faith”. I also indicated that I would not rely upon the material contained in Ms Mackie’s Affidavit as she had not made herself available for questioning. [20] I indicated on the record that there were a number of matters that, had Mr McKendry made himself available for questioning, he may have been able to satisfy my concerns. These matters include:– (xiv) It came to the attention of the Full Bench of the Commission in B1875 of 2000 and B810 of 2001, following two weekends of Sunday trading, that Woolworths at Perry Lane/Turbot Street appeared to have been trading in contravention of the Trading Hours – Non-Exempt Shop Trading by Retail – State Order (Trading Hours Order) since 1 February, 2002. I was a member of both Full Benches. No order had emanated from the Full Bench enabling Woolworths at Perry Lane to trade on Sundays as and from 1 February, 2002. As at 1 February, 2002 the Full Bench of the Commission in B1875 of 2000 had not signed such an order as the RAQ had not complied with directions issued to it by the same Full Bench in B810 of 2001. The Full Bench in B810 of 2001 on 18 February, 2002 made the RAQ aware of the apparent contravention by Woolworths and of the reasons why the Full Bench had not issued any order. The Full Bench has subsequently been made aware of information which would indicate that Woolworths at Perry Lane has continued to trade in contravention of the Trading Hours Order. (xv) The RAQ acted for Woolworths during the course of B810 of 2001 and B1875 of 2000. A decision in both matters was released on 21 December, 2001; (xvi) On 7 March, 2002 in B2239 of 2001 Commissioner Swan sought from the RAQ its response to the Full Bench’s comments of 18 February, 2002 in B810 of 2001. Gary Black, industrial officer for the RAQ, responded to Commissioner Swan by saying that the RAQ did not have any obligation to advise Woolworths of the comments of the Full Bench as Woolworths were not a member of the RAQ “at the present moment”; (xvii) Yet on 18 February, 2002 in D63 of 2002, the same day that the Full Bench made its comments in B810 of 2001, Susannah McAuliffe, industrial officer with the RAQ, purported to act for a member, Woolworths, in a dispute. This was at 11.30 a.m. whereas the Full Bench made its comments directed to the RAQ shortly after 4.30 p.m. There was no agency form filed by the RAQ in D63 of 2002 which would indicate that it was acting as agent for Woolworths. One can only assume that Woolworths was a member of the RAQ as at 11.30 a.m. on 18 February, 2002. It is difficult to comprehend how a registered organization can be representing Woolworths at 11.30 a.m. but have no obligation to inform them of comments made by a Full Bench at 4.30 p.m. on the same day; and (xviii) On 11 March, 2002 Susan Lindsay, an industrial officer with the RAQ, entered an appearance for the RAQ on behalf of Woolworths in CA50 of 2002 before Commissioner Bloomfield. Therefore as late as last week the RAQ were appearing in this Commission for Woolworths as a member of the organization. Again there was no agency form filed in the Registry and no appearance entered “as agent for Woolworths”. Once again the RAQ appears to have no difficulty advising the Commission on 7 March, 2002 that it has no obligation to advise Woolworths of comments made by the Full Bench as they are not a member of the RAQ, yet the following week can represent the same member in the certification of an agreement. [14] It is apparent that someone from the RAQ has misled some member or members of this Commission. There has been no attempt by the RAQ to advise the Commission if information given to the Commission was incorrect. It would be outstanding if the RAQ did not advise Woolworths on 1 February, 2002 that they had not obtained an order from the Commission enabling Woolworths to trade on Sundays. It is even more outstanding that Mr Black did not see any obligation on the RAQ to inform Woolworths of the comments of the Full Bench on 18 February, 2002. [15] Even if Woolworths were not “at the present time” a member of the RAQ when Mr Black so advised Commissioner Swan, the fact that the RAQ had represented Woolworths in B1875 of 2000 and B810 of 2001 placed, in my view, an obligation on them to advise Woolworths of the comments of the Full Bench on 18 February, 2002. Of course given the subsequent appearance for Woolworths it is doubtful that the submission of Mr Black was in fact correct. Once again the failure to notify Woolworths is not, in my view, appropriate behaviour for any registered organization let alone an organization seeking to have an eligibility rule inserted in the rules of the organization. [16] One can infer many things from the failure of RAQ witnesses to make themselves available for questioning. One such inference is that the material on which the RAQ sought to rely could not withstand such questioning. [17] The RAQ were given a further opportunity on 26 June, 2001 to satisfy me of the requirements of s. 474 of the Act. They have failed to do so in the nine months following release of that decision. In the circumstances I conclude that the RAQ does not meet the criteria outlined in the Act for approval of an eligibility rule. As such I dismiss the application. Order Accordingly. D.M. LINNANE, Vice President. Released: 20 March 2002 Appearances:– Ms A. Milner of Blake Dawson Waldron for the Retailers’ Association of Queensland Limited, Union of Employers. Mr D. Matley for the Queensland Retail Traders and Shopkeepers Association (Industrial Organisation of Employers). -- 4 of 4 --