Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland v Mount Isa Mines Limited and The Australian Workers’ Union of Employees, Queensland [2000] QIRC 70 (2000) 164 QGIG 306

306 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 21 July, 2000 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 277 – application for injunction Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland AND Mount Isa Mines Limited and The Australian Workers’ Union of Employees, Queensland (No. B704 of 2000) COMMISSIONER BALDWIN 6 July 2000 Decision on preliminary point of the applicant’s legal standing – Finding for the applicant – Existing CA’s require their participation as a party – Bound by award and s. 45 order – Not appropriate to exercise discretion in terms of s.331 – Unconvinced that in terms of s. 277 no prospect of any contravention of any section of the Act in view. DECISION This matter first came before me on 26 May 2000, when the applicant sought leave to make an application for interim injunctive relief pending a final determination of the matter. The concern was that MIM Holdings Limited (MIM) not proceed to circulate to segments of its workforce, a proposed Agreement that did not include the applicant, Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (AMWU) as a party. The applicant submitted that such action was in contravention of the provision of s. 156 of the Industrial Relations Act of 1999. Mr Murdoch for MIM argued that the matter “should not proceed past first base, (a) because of lack of legal standing in the applicant, and (b) because there’s a very substantial case why, as a matter of discretion, you would not proceed under section 331.”. Mr Herbert for The Australian Workers’ Union of Employees, Queensland (AWU), argued a similar position. He said “this union does not have the right to industrially represent the interests of the persons in respect of whom they are now seeking injunctive relief. He referred the Commission to a s. 45 order of the Full Bench of the Commission that denies them the capacity to bring an application of this kind. Further, he stated that the application could have no purpose other than to represent the industrial interests of persons intended to be covered by the Agreements. The parties agreed that the applicant had a right to be heard on the issue of their standing and the matter next came before me on 22 June 2000. It was agreed that the AWU be made a party. On 28 June 2000, I invited the parties to make further submissions on an issue it seemed to me had not previously been addressed and the parties made their further submissions that afternoon. Following this an interim injunction was granted in favour of the AMWU. President Hall, on appeal by MIM and AWU set aside the interim injunction and remitted the matter to me to be heard and determined according to law. On the material before me, the Award makes provision for preference between Unions at cl. 14(11). Also, the s. 45 Order created Representational Rights in line with this preference clause. Further, the three 1996 CA’s recognised and incorporated the s. 45 Order but made all three parties the parties to all three (3) CA’s. After hearing the submissions on the preliminary matter I said that I had difficulty in accepting that the matter at issue was not the representational rights of the respective Unions. However, in reviewing the material, I was persuaded by the applicant’s assurances that this was not about representational rights. They asserted it was about their right to be a party to the new Agreements under s. 156. On perusal of the existing Agreements, I noted that each CA at cl. 1.4 indicated an expiry date of 31 August 2000. At cl. 1.10 each states “the parties will commence work towards the extension or replacement of this Agreement three (3) months prior to the expiry of this Agreement.” I was not persuaded by Mr Murdoch’s interpretation of the clause. Rather, I came to the view that the Agreement anticipated the parties to the existing Agreement would work together towards a replacement Agreement. I was of the view that the AMWU having been a party to the existing Agreement without representational rights could argue that they rightly expected they would continue to be a party under that circumstance in any replacement Agreement. Having regard to this finding, together with the fact that the AMWU is bound by the Award, and the s. 45 Order, I find that the AMWU has standing to come before the Commission in this matter. It is further my conclusion that on the evidence before me, it is not an appropriate matter for the exercise of my discretion in terms of s. 331, that the matter not be heard. I also find the argument that, in terms of s. 277, there was no prospect of any contravention of any section of the Act in view to be unconvincing. Having regard to my findings on the preliminary points, I now invite submissions on the substantive application. -- 1 of 2 -- 21 July, 2000 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 307 Dated this sixth day of July, 2000. D.B. BALDWIN, Commissioner. Released: 6 July 2000 Appearances:– Mr S. Reidy of Reidy & Tonkin, for the Automotive, Metals Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland. Mr J. Murdoch, with him Mr N. O’Connor, on behalf of MIM Holdings Limited. Mr A. Herbert, with him Mr B. Swan, on behalf of The Australian Workers’ Union of Employees, Queensland. -- 2 of 2 --