Agforce Queensland Industrial Union of Employers v The Australian Workers' Union of Employees, Queensland [2001] QIRC 106 (2001) 167 QGIG 297

27 July, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 297 ########################################################################################################################## # QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 331(b)(ii) –refrain from hearing application Agforce Queensland Industrial Union of Employers AND The Australian Workers' Union of Employees, Queensland (No. B391 of 2001) PRESIDENT HALL COMMISSIONER EDWARDS COMMISSIONER THOMPSON 20 July 2001 DECISION In order to understand the application now pressed upon the Commission, it is necessary to say something about cases past. During the course of 1999 each of three cases, viz No. B1943 of 1998, No. B1944 of 1998 and No. B538 of 1999, were before Commissioner Blades. The proceedings were approached with great industry both by the parties and by the Commission. Fifty-two witnesses were called. They were called from a total of twenty-one different properties and regional centres. The Commissioner and the parties visited the properties and regional centres to take the evidence. The process took twenty-one days. Much of the time was spent in driving motor vehicles. In the result, all matters were settled. Numerous, novel and industrially significant amendments were made to the Shearing Industry Award –State. The claims advanced in No. B538 of 1999 were withdrawn. Within a week of being informed of the settlement, Commissioner Blades was informed that the matter had not been settled at all. Commissioner Blades was informed that the industrial advocate who had informed The Australian Workers' Union of Employees, Queensland and the Commission of Agforce Queensland Industrial Union of Employers’ agreement to the settlement conveyed the information without authority. There were proceedings before Commissioner Blades on that claim. On 4 February 2000, by a decision now reported at 163 QGIG 111, Commissioner Blades found that the industrial advocate had had actual authority from the Chief Executive Officer of Agforce Queensland Industrial Union of Employers to enter into the settlement and to inform the Commission about it. It was not disputed that the Chief Executive Officer might delegate such authority. In the circumstances the Award was amended according to the terms of settlement with the date of operation of 1 January 2000. There was no appeal. On 28 February 2001 Agforce Queensland Industrial Union of Employers filed an application for amendment of the Shearing Industry Award – State. On 18 April 2001 The Australian Workers' Union of Employees, Queensland filed a response. Some claims are admitted and agreed. Others were denied and opposed. An analysis of the claim and the response shows that overwhelmingly the claims which are denied and opposed are claims which would reverse the consent orders made by Commissioner Blades or, alternatively, re-litigate claims made in No. B538 of 1999 which were withdrawn as part of the settlement. In those circumstances, it is the submission of The Australian Workers' Union of Employees, Queensland that the Commission should, pursuant to s. 331(b)(ii) dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, because further proceedings by the Commission are not necessary or desirable in the public interest. It is contended for Agforce Queensland Industrial Union of Employers that it has a right to be heard. There is scant authority upon s. 331(b)(ii). However it is not dissimilar to s. 43(1)(d)(iii) of the (now repealed) Conciliation and Arbitration Act 1904 (Cwth). It is similar, though in a very different statutory setting, to s. 111(1)(g)(iii) of the Workplace Relations Act 1996 (Cwth). We consider the decisions upon the Commonwealth provision to be a useful point of reference. The seminal decision is of course the decision of the High Court of Australia in Re: Queensland Electricity Commission; ex parte Electrical Trades Union (1987) 72 ALR 1. At 5, the majority of the Court (Mason CJ, Wilson and Dawson JJ) while acknowledging that the settlement of industrial disputes was a fundamental concern of the Commonwealth Commission observed “ . . . it is necessary to remember that the importance the Act places upon the settlement of industrial disputes cannot of itself dictate the exercise of the discretion given by s. 41(1)(d)(iii). That paragraph itself recognises that it may be in the public interest to leave an industrial dispute unresolved.”. Similarly, s. 331(1)(b)(ii) recognises that in a particular case the public interest may displace a litigant’s normal right to have a case heard and determined. In all the circumstances of the case we do not find it necessary to determine whether, as the majority in Re: Queensland Electricity Commission; ex parte Electrical Trades Union (1987) 72 ALR 1 held, that the discretion is all about balancing the interests (often competing public interests in the circumstance of a particular case) or, whether as Deane J (at 13) held an applicant seeking to induce the Commission not to exercise jurisdiction carries -- 1 of 2 -- 298 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 27 July, 2001 an onus. In the circumstances of this case we are affirmatively of the view that we should for the time being, compare Health Inspectors Association of Australia v Freemantle Corporation (1953) 762 CAR 32 at 40 to 41, refrain from hearing the application filed 28 February 2001. We are prepared to accept from the Bar Table, and in fairness it has not been disputed, that the proceedings of 1999 were burdensome and expensive. The Australian Workers' Union of Employees, Queensland might legitimately feel aggrieved and that it had been ambushed, if the matters raised by the application filed 28 February 2001 were granted a prompt hearing. No case is presently developed that there have been such changes in the industry as to justify a radical revision of the terms on which the matter was brought to an end on 12 November 1999. We acknowledge that the Industrial Relations Act 1999 seeks to ensure that industrial organisations registered under the Act are under the control of the members. It is an inevitable concomitant of membership control that industrial organisations will, from time to time, dramatically alter a policy or policies and/or seek to re-litigate matters long settled. Section 331(b)(ii) should not be exercised to frustrate the membership. However, there are conflicting interests. The interests of The Australian Workers' Union of Employees, Queensland and its members – who have been encouraged to have expectations – must also be considered. So also is the interest of the public in ensuring that the Industrial Relations Act 1999 does not become a vehicle by which one party may lock another in the Commission until, by exhaustion or by exhaustion of funds, the other party capitulates. We acknowledge that the Award contains no extra claims clause which has now expired. Given the history of the making of the Award, the clause cannot fairly be construed as permitting a complete re-opening of the settlement twelve months after the date of commencement of the Award. It applied to new and further claims. The Commission will refrain from hearing the application which triggered No. B391 of 2001 until 2003. We will mention the matter in December 2002 for re-consideration. We intimate to the parties that if at that time Agforce Queensland Industrial Union of Employers is able to point to industry changes which justify re-opening of the settlement and/or a genuine dissatisfaction with the changed Award after a legitimate period of trial or, indeed if Agforce Queensland Industrial Union of Employers persists with the claims, we may well be prepared to proceed to a hearing. Commissioner Edwards will convene a conference about the original matters. It may be possible to sever those matters. Dated this twentieth day of July, 2001. D.R. HALL, President. K.L. EDWARDS, Commissioner. J.M. THOMPSON, Commissioner. Released: 20 July 2001 Appearances:– Mr W. Turner for Agforce Queensland Industrial Union of Employers. Mr B. Swan for The Australian Workers' Union of Employees, Queensland. -- 2 of 2 --