Australian Red Cross v Queensland Nurses’ Union of Employees & Ors [2001] QIRC 22 (2001) 166 QGIG 266

266 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 9 March, 2001 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 156 – application for certification Australian Red Cross AND Queensland Nurses’ Union of Employees and Others (No. CA758 of 2000) AUSTRALIAN RED CROSS BLOOD SERVICE – QUEENSLAND ENTERPRISE BARGAINING CERTIFIED AGREEMENT 1 2000 COMMISSIONER BLADES 27 February 2001 Certified Agreement – Hearing after nominal expiry date – S.156(1)(e) commands the Commission to refuse to certify if nominal expiry date is after the date the agreement will come into operation – Agreement operative on date of certification – Nominal expiry date after date of operation – Agreement not certified – Adjourned for submissions under s. 158(1)(b) “Other options open to commission”. DECISION This is an application for the certification of the Australian Red Cross Blood Service – Queensland Enterprise Bargaining Certified Agreement 1 2000. The application is made by the Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers (QCCI) on behalf of the employer and supported by the Queensland Nurses’ Union of Employees (QNU); the Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland, Clerical and Administrative Branch, Union of Employees; the Queensland Public Sector Union of Employees; the Transport Workers’ Union of Australia, Union of Employees (Queensland Branch) and the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees. There are no objections to the certification. There were numerous defects in the affidavit filed in support of the application in that there was not full compliance with what is required by section 9 of the Industrial Relations Regulation 2000. Most of those defects were remedied by additional material produced at the hearing. However, the major obstruction to the certification is that the nominal expiry date passed before the Agreement could be certified. Clause 1.4 of the Agreement provides:– “Date and Period of Operation This Agreement shall operate from 1 July 1999 and shall remain in place until 31 December 2000.”. It was filed in the Commission on 22 December 2000 and listed for hearing on 19 January, 2001. The Agreement indicates it was signed on 20 December, 2000. Section 154 of the Industrial Relations Act 1999 (the Act) provides that the Registrar must, at least 7 days before an application is to be heard, place a notice in the registry. If that notice had been placed in the Registry on the same day the Agreement was filed (22 December), by virtue of s.38 of the Acts Interpretation Act 1954, the date of hearing could not be earlier than 2 January, 2001 and on that date, the nominal expiry date had already passed. Section 156 of the Act provides:– “The commission must certify the agreement if, and must not certify the agreement unless, it is satisfied – . . . (e) the agreement specifies a nominal expiry date that is – (i) . . . (ii) for another agreement – a date no later than 3 years after the date on which the agreement will come into operation; . . .”. Section 164 provides that a certified agreement starts operating when it is certified. Thus this agreement would not have started to operate until certification date. By then the nominal expiry date had passed. The Act requires the Commission to be satisfied that the nominal expiry date is no later than 3 years after the date of operation (i.e. the date of certification). The nominal expiry date, whatever it is, is to be after the date of certification and if it is not, the Act requires the commission to not certify the agreement. To ignore the provisions of the Act is to breach those provisions. -- 1 of 2 -- 9 March, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 267 Whether an agreement could be certified after its nominal expiry date arose for consideration in Textile, Clothing and Footwear Union of Australia and another v. Stafford Manufacturing Pty Ltd (Print P9304), a decision of Smith C in the Australian Industrial Relations Commission on 11 March 1998. The nominal expiry date was 30 June 1997 and the application was lodged on 29 July 1997. The Commissioner said:– “Secondly, if the agreement was certified it would come into operation from the date of certification (s.170LX of the Act) but the agreement would have, by its own terms, expired. If it were possible to certify an agreement following the nominal expiry date, then this would also set up a tension with the terms of s. 170LT(1) of the Act which requires that the nominal expiry date cannot be more than three years after the date on which the agreement will come into operation. . . . Section 170LT of the Act commands the Commission not to certify an agreement if it is satisfied that the provisions of that section are not met.”. Section 170LT(10) of the Federal Workplace Relations Act 1996 is in substantially similar terms to s. 156(1)(e) of the Act. QCCI have made submissions to the effect that – • that once an agreement is made the Commission does not have the discretion to refuse to certify an agreement where all criteria have been satisfied; • the issue of the expiry day is not an issue that must be taken into consideration; • the criteria for the Commission to refuse to certify an agreement are discussed in s. 157; • the Commission has general powers to do all things necessary or convenient to be done for, or in connection with the performance of its functions – s.274; • section 329(j) or (k) would provide the necessary relief to allow this application to be certified; • the Commission has been given sufficient latitude to do all things necessary to allow matters to be determined by not being restricted by legal technicalities and has the power to waive compliance; and • that Textile Clothing and Footwear Union of Australia and Another v. Stafford Manufacturing Pty Ltd can be distinguished. QNU adopts the submission of QCCI and refers to the objects of the Act [s.3 (i)] and s. 153 which is the only requirement as to timing imposed by the Act upon any party in terms of making an application such as the present. It is also submitted that the fact that the nominal expiry date has already passed is irrelevant in terms of the legislative intention. QNU refers to ss. 273(1)(c), 273(2) and 274(1). The submission concludes that there is no legislative prohibition upon certifying an agreement which has a nominal expiry date which has passed and secondly, there is a positive function and obligation to do so in the present circumstances. Other submissions have not been received and it is assumed none will be forthcoming now after the Directions Order nominated 16 February as the closing date. The plain words of s. 156(1)(e) leave no room for some other interpretation. Neither ss. 273, 274, 329 nor for that matter s. 320 authorise the Commission to ignore the provisions of the Act. This is not a mere breach of a rule. As Smith C says, the Commission is commanded by the provision. Moreover, to determine an issue according to “equity, good conscience and the substantial merits of the case” does not mean that the principles of law should be ignored. In Russito Pty Ltd v. Russo (1993) 173 LSJS 14 Noblet J included in a list of the principles taken from published authorities bearing on the concept that – “The Tribunal must comply with any express statutory directive that is clearly not intended to be ignored or departed from, even if the result may not seem to accord with equity and good conscience. In matters of statutory interpretation, the tribunal must not give a statute a meaning other than that which a court of law would place upon it.”. Furthermore, there are no reasons for distinguishing Stafford Manufacturing even though there was the added complication that the vote in that case was taken after the passing of the nominal expiry date. That fact was just another reason for Smith C’s opinion that the agreement did not meet with the provisions of the Act. Of course, I am not bound by that decision. However, with respect, the reasons of Smith C make plain good sense. I do not consider that a requirement to apply for certification of an agreement in a timely manner is an “unnecessary technicality”. The ballot was conducted on 28 August 2000 and the agreement could have been certified at any time after that. There has been inexcusable delay. It can hardly be described as a “technicality” that an agreement has passed its “use by” date before it obtains approval. For the reasons indicated, I am unable to certify this agreement because I am not satisfied that the nominal expiry date is a date after the date on which the agreement will come into operation. At the hearing I sought submissions on what action may be appropriate to enable the commission to certify the agreement – vide s.158(1)(b). Those submissions have not been forthcoming and no mention has been made of that issue. Accordingly, I provide that opportunity to the parties. Those written submissions, if the parties desire to make any at all, are to be delivered to the Commission within 14 days of the release of this decision. B.J. BLADES, Commissioner. Appearances: Ms C. Doyle, of the Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers, for Australian Red Cross. Mr T. Hamilton for The Queensland Public Sector Union of Employees. Released: 27 February 2001 Mr M. Healy for the Queensland Nurses’ Union of Employees. Ms J. Justo for the Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees. Mrs. J. Billingsley for the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees. -- 2 of 2 --