Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v Chubb Security Pty Ltd [2001] ICQ 31 (2001) 167 QGIG 202

202 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 29 June, 2001 ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(1) – appeal from decision of industrial commission Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees AND Chubb Security Pty Ltd (C17 of 2001) PRESIDENT HALL 19 June 2001 REPORT ON DECISION (as edited) -- 1 of 2 -- 29 June, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 203 In giving his decision from the Bench on 13 June 2001, President Hall stated:– “This appeal arises out of an application by the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees, to vary the Security Industry (Contractors) Award – State, to give effect to the Statement of Policy of a Full Bench of the Queensland Industrial Relations Commission about the matter of Union Encouragement, now reported at 165 QGIG 221. The clause sought to be inserted in the Security Industry (Contractors) Award – State differed from the clause ordinarily inserted pursuant to the Statement of Policy, in that it named the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees. The Statement of Policy recognises that there are categories of cases in which it is appropriate to name a particular Union. It seems to me that on a fair construction of the Commission’s decision, the Commission recognised that. This is not a case in which, because a Commissioner has made an error in a bona fide attempt to apply a Statement of Policy, the non-compliance with the Statement of Policy is an error of law; compare re: Clerks Employed in Sugar Mills Award – State (1990) 134 QGIG 141 at 142 per Moynihan, President. The Commission’s decision to refuse the application did not flow from a misunderstanding about the Statement of Policy, but from the view that the “evidence” before the Commission did not establish that this case fell within the categories of case in which a Union might actually be named. There is a difficulty with that proposition. In truth there was no evidence. There were merely serious statements from the bar table. There were only serious statements from the bar table because the matter had been listed for a preliminary hearing. In circumstances where only two parties appeared and the only respondent who appeared, although it did not consent, did not oppose the grant of the application, the Commissioner dealt with the matter as if the hearing was a final hearing. The consequence was that the now appellant did not have available to it and did not lead evidence (which has been tendered this morning) which, prima facie, establishes that this is a case where the naming of the Union would be consistent with the Statement of Policy. It may be argued that the appellant did not complain as vigorously as it might have done before the Commission about the decision finally to resolve the matter rather than treat the matter as a preliminary hearing. I rather suspect that was because the appellant thought that the Commission’s concern was with what the Statement of Policy allowed, rather than with whether the evidence was sufficient to bring a case within the Statement of Policy. In all the circumstances there has been a denial of natural justice. The appeal must be allowed. I accept that the Act does arm me with sufficient power to make the variation by way of an order of the Court. Given the history of the relationship between the Court and the Commission, it would not ordinarily be desirable for the Court to finally determine a matter of industrial merit. It seems to me that the proper course is to refer the matter back to the Commission in order that the matter might be dealt with according to law. I adjourn the Court.”. Dated this nineteenth day of June, 2000. By the Court, [L.S.] E. EWALD, Industrial Registrar. Appearances:– Mr J. Martin from Australian Liquor, Hospitality and Miscellaneous Workers Union, Union of Employees for the appellant. Mr J. Patti from Employer Services Pty Ltd for the respondent. -- 2 of 2 --