An appeal by Retailers' Association of Queensland Limited, Union of Employers [2002] ICQ 17 (2002) 170 QGIG 10

10 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 May, 2002 ########################################################################################################################## # INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 342 – appeal against decision of industrial commission An appeal by Retailers' Association of Queensland Limited, Union of Employers (No. C29 of 2002) PRESIDENT HALL 24 April 2002 DECISION On 8 October 1999 the appellant, an industrial organisation of employers registered under the Industrial Relations Act 1999, filed an application with the industrial registrar by which the appellant sought the rescission of its existing rules and the registration of a new set of rules in lieu thereof. One of the rules contained within the proposed new rules was a rule about eligibility. At all times prior to the institution of the appeal the application filed on 8 October 1999 was dealt with on the basis that the proposed new rule about eligibility required approval under s. 474 of the Act. The construction of s. 474, and in particular the construction of sub-section 1 which was the critical condition provision in the proceedings in the Commission, is not without its difficulties. Sub-section 1 provides: “The Commission may, by order, approve an eligibility rule amendment only if satisfied– (a) the amendment has been proposed under the organisation’s rules; and (b) there is no orgainsation to which its members could conveniently belong that would effectively represent them in a way consistent with the objects of this Act.”. Read literally, paragraph (b) requires rejection of an application for approval for an eligibility rule amendment where the existing members of the applicant organisation could conveniently belong to another organisation which would effectively represent them in a way consistent with the objects of the Act. On a literal construction it is irrelevant that there is not another organisation to which those who would, for the first time, become eligible to take out membership in the applicant organisation if the amendment were approved, might conveniently belong and which would effectively represent them in a way consistent with the objects of the Act. It is unlikely that the literal construction of sub-section (1) conforms to the intention of the legislature. In those circumstances, as the Court is entitled to do pursuant to s. 14B(1) of the Acts Interpretation Act 1954, I have gone to the explanatory note relating to the bill. The explanatory note makes plain that the intention of the legislature was that what was to be tested was whether those who will become eligible to join the applicant oraganisation for the first time (if the proposed eligibility rule amendment is approved) could conveniently belong to another organisation which would represent them in a way consistent with the objects of the Act. I have decided so to read s. 474(1). There is no ambiguity about the nature of the function entrusted to the Commission by s. 474(1). Section 474(1) is quite dissimilar to s. 345(6) of the Industrial Relations Act 1990 and s. 37(6) of the Industrial Organisations Act 1997. Those sub-sections required the Commission to refuse consent to a change in an eligibility rule if the Commission became aware that there was another organisation capable of representing those to be made eligible by the change and to which those persons might conveniently belong. In the ordinary case, if there was no objection to approval of the rule, there was no evidence before the Commission upon which the Commission might form that opinion. In such a case, approval followed if the correct formal steps had been taken. Section 474(1) is entirely different. There is a positive duty cast upon the Commission to refuse approval in an appropriate case. Discharge of that duty may require the Commission, which is relevantly exercising administrative not judicial power, to exercise its power to “inform itself” (s. 320(2)(b)) whether there is another organisation of the type referred to at s. 274(1)(b), compare The Queen v Australian Broadcasting Tribunal: Ex parte Hardiman (1980) 144 CLR 13 at 33. In this case, the Commission took the view that the matter brought on by the appellant’s application was a matter in which it was proper for the Commission to seek information about whether there was another organisation of the type referred to in s. 474(1). The Commission’s decision was hardly surprising. There had been an objection (subsequently withdrawn) by another employer organisation, viz the -- 1 of 2 -- 10 May, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 11 Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers), which sought to advance the case that that organisation was an organisation of the type referred to in s. 474(1). The duty to investigate squarely arose. In any event, as the entirely faculative word “may” at s. 320(2)(b) suggests, compare s. 32(CA)(1) of the Acts Interpretation Act 1954, the Commission’s power to inform itself may be exercised (or not exercised) at discretion. Any appeal against a decision to exercise the power must be tested against the principle established by House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ, and nothing has been put on the appeal to suggest that the Commission’s initial decision to seek further information could properly be set aside under that principle. In my view, the situation altered after the appellant filed an affidavit of its Executive Director Mr Patrick McKendry on 9 January 2002. The proceedings in the Commission went awry when, because Mr McKendry was not available to answer questions about his affidavit, the Commission declined to place reliance upon it. The affidavit was tendered and admitted upon the appeal. It appears from the affidavit that it is the contention of the appellant that the new eligibility rule does not operate to render eligible to join the organisation any person not already entitled to do so. Doubtless, Mr McKendry was swearing to a proposition of law. But given the basis for proceedings in the Commission, which by s. 320(2)(a) is “not bound by technicalities, legal forms or rules of evidence”, that affidavit, if read, would have put the Commission on notice that there was a question of law to be determined, and that, if the question of law determined favourably to the appellant, the need for the Commission to “inform itself” in order that it might discharge its obligations under s. 474(1) simply disappeared. If the Commission had read the affidavit and no more had appeared, I should have thought that the proper course would have been for the Commission to call upon the appellant to make its submissions – which might well include reference to extrinsic materials, Electrical Trades Union v Waterside Workers Federation(2) (1982) 59 FLR 78 at 83 and Shaw, JW, Interpreting Trade Union Constitution Rules, (1988) 62 ALJ 690 at 693 – and determine whether the contention advanced by Mr McKendry was correct. In fact, the matter did not stop there. The appellant indicated that it wished to lead further evidence. Whether the appellant made the forensic decision to lead further evidence out of apprehension that s. 474(1) might be construed literally or because, if the appellant failed on the contention advanced by Mr McKendry, it wished to argue in the alternative that there was not another organisation of the type referred to at s. 474(1) does not clearly emerge from the materials. What does emerge is that an application for an adjournment in order that the appellant might marshall up its further evidence was rejected, that the affidavit of Mr McKendry was rejected because of his unavailability and in those circumstances the Commission concluded that it was not satisfied that there was not another organisation of the type referred to at s. 474(1). The decision of the Commission has now been reported, see (2002) 169 QGIG 255. The considerations which lead the Commission to decline to grant the adjournment and to pay no regard to the affidavit of Mr McKendry are expressly stated in paragraphs 25-34 of that decision. It is sufficient to say that not one of the matters referred to goes directly to the issue whether there is another organisation of the type referred to in s. 474(1). It may be that in another case the matters referred to would go to the credibility of certain employees of RAQ and (perhaps) the organisation itself. But the contention that the eligibility rule amendment did not in truth extend eligibility at all was either correct or incorrect as a proposition of law. Credibility had nothing to do with the matter. Neither could the matters raised fairly be treated as going to the credibility of any (as yet unknown) deponent who might execute an affidavit prepared during the adjournment which had been sought. Regrettably, I consider that this is a case in which exercising its discretion both on the question of adjournment and on the question whether the Commission needed further to “inform itself”, the Commission did act on extraneous and irrelevant considerations. The appellant has submitted that the Court should determine for itself whether the new eligibility rule should be approved. Because of the way in which the matter was ultimately disposed of in the Commission, the Commission has not really dealt with that matter at all. Indeed, no finding has yet been made that the new rules have been proposed in accordance with the existing rules. The scheme of the Industrial Relations Act 1999 is to tie the approval of eligibility rules to the opinion of the Commission rather than the opinion of the Court. While I accept the submission of the appellant that the Court has power to take the step requested of it, I am of the view that effect is best given to the legislative scheme if the matter is remitted to the member of the Commission who dealt with it at first instance to hear and determine the matter according to law. I have determined to refrain also from determining the question whether an adjournment should be allowed. Granted that only the appellant can be delayed and prejudiced by the grant of an adjournment, it is prima facia difficult to understand why an adjournment should not be granted. On one view the appellant does not have an eligibility rule which complies with the Industrial Relations Act 1999. It should, see s. 429(1)(b). The purpose that s. 474(1) seeks to achieve in referring to “an eligibility rule amendment” rather than “an amendment to an eligibility rule” is to facilitate such improvements. The public interest favours grant of the adjournment so that the organisation may address the shortcoming. However, granted that the difficulties in the construction of s. 474(1) have been resolved on the appeal, the appellant may no longer be of the view that an adjournment is necessary. I allow the appeal, I remit the matter to the Commission to be heard and determined according to law. Dated 24 April 2002. D.R. HALL, President Released: 24 April 2002 Appearances:– Mr J. Murdoch SC and Ms C. Arnold instructed by Clarke Dowling Solicitors for the appellant. -- 2 of 2 --