Australian Mines and Metals Association (Incorporated) Queensland Branch v The Australian Workers’ Union of Employees, Queensland; Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers v The Australian Workers’ Union of Employees, Queensland [2000] ICQ 16 (2000) 164 QGIG 21

21 Vol. 164 FRIDAY, 12 MAY, 2000 No. 2 ####################################################################################################################### # INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(1) – appeal from decision of industrial commission Australian Mines and Metals Association (Incorporated) Queensland Branch AND The Australian Workers’ Union of Employees, Queensland (No. C15 of 2000); AND Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers AND The Australian Workers’ Union of Employees, Queensland (No. C16 of 2000) PRESIDENT HALL 28 April 2000 DECISION In matter no. B879 of 1999 The Australian Workers’ Union of Employees, Queensland (AWU), seeks the declaration of a General Ruling upon the matter of union encouragement. In matter no. B1049 of 1999, the Queensland Council of Unions (QCU) seeks a Statement of Policy about the same industrial matter. By a decision published 7 March 2000, 163 QGIG 277, the Full Bench of the Queensland Industrial Relations Commission which is hearing each of B879 of 1999 and B1049 of 1999 rejected submissions that each of the matters was beyond its jurisdiction. On 24 March 2000 Daniel Charles Williams, Solicitor, of Minter Ellison Lawyers, being authorised to represent a diverse group of organisations and employers (particularised below at the heading “Appearances”) appealed against the decision of the Full Bench in each of matter no. B879 of 1999 and matter no. B1049 of 1999. Some four days later the Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers filed an appeal of its own. It is both convenient and necessary to separate the appeal in matter no. B879 of 1999 and matter no. B1049 of 1999, notwithstanding that the matters have been joined. By s. 287(8) of the Industrial Relations Act 1999 – -- 1 of 3 -- 22 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 12 May, 2000 “(8) If a ruling takes effect while an industrial instrument, other than a instrument or part of an instrument excluded under subsection (4), is in force – (a) the industrial instrument is taken to be amended to accord with the ruling, on and from the specified date; and (b) the amendment has effect as an industrial instrument, on and from the specified date.”. By the Dictionary at Schedule 5 “industrial instrument” means an award, certified agreement, QWA, industrial agreement, EFA or order under chapter 5, parts 5 and 6. The reference to subs. 4 is necessary because subs. 4 vests the Commission with power to grant exemption from the operation of a General Ruling. (There is authority to the effect that in the absence of subs. (4) a power to exempt might have been found within subs. (1). However, the presence of an express power makes it difficult to find that a comparable power is implicit within or incidental to the power at subs. (1).). Subsection (4) is in the following terms – “(4) A ruling may exclude from the operation of any of its provisions – (a) a class of employers or employees; or (b) employers or employees in a particular locality; or (c) an industrial instrument or part of an instrument.”. Not surprisingly, given the remarkable effect of a General Ruling, the power to make a General Ruling is exercisable by QIRC only when constituted as a Full Bench and only in limited circumstances. Subsection (1) provides – “287. (1) The full bench may make general rulings about – (a) for employees bound by an industrial instrument – an industrial matter, to avoid a multiplication of inquiries into the same matter; or (b) a review of a general employment condition under chapter 2; 78 or (c) a Queensland minimum wage, whether or not it is the subject of an industrial instrument.”. Only subs. (1) para (a) is relevant here. Subsection (1)(a) does not authorise the Commission to hear an application for a General Ruling and make the General Ruling if satisfied that it is desirable to do so. The power to make a General Ruling is available only for the purpose of avoiding a multiplication of enquiries into the same matter. (And it is to be noticed that the Commission is not required to make a General Ruling where making a General Ruling would avoid a multiplication of enquiries into the same matter. There is no reason to doubt that “may” indicates that the power may be exercised or not exercised, at discretion, compare s. 32 CA of Acts Interpretation Act 1954.). However, there is absolutely no reason why a party otherwise competent to seek variation of an industrial instrument* may not institute proceedings seeking the making of a General Ruling. I respectfully adopt the observation of the Full Bench in ACTU and Others v. QCCI and Others (1997) 155 QGIG 1175 at 1176 dealing with the General Ruling provision of the Workplace Relations Act 1997: “The point at issue is whether in determining to form the intention referred to at s. 132(2)(a), the Commission may listen to an industrial organisation of employees which has expressed the view that the making of a General ruling is desirable. We consider s. 335(2) to grant the Commission ample authority to listen to such an industrial organisation. The width of the power was emphasised by Mackenzie P. in The Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees and Others v. Retailers’ Association of Queensland Limited, Union of Employers and Another 145 QGIG 664 at 665 whereat His Honour observed ‘The liberty [the Commission] has in going about the process of informing itself for the purpose of exercising its jurisdictions or powers and the performance of its duties is extremely wide.’. See also Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees and Federated Engine Drivers’ and Firemens’ Association of Australasia Queensland Branch, Union of Employees and Queensland Colliery Employees Union of Employees 153 QGIG 537 at 538 per de Jersey P.”. Indeed, in the absence of such a party it is difficult to imagine how the material supporting a conclusion that, in the absence of a General Ruling, there will be multiple enquiries into the same industrial matter might, be placed before the Commission in any appropriate way. And such materials must be placed before the Commission. The purpose of power at s. 287(1)(a) is available only to avoid a multiplication of enquiries into the same matter. (*The Commission may of course decline to make a General Ruling on the application of a party with no legitimate interest in the wide range of industrial instruments which will be affected by such a ruling.). With respect to the appellants, it seems to me that all that the Full Bench has done in matter no. B879 of 1999 is embark upon the enquiries (a) whether multiple enquiries upon the same matter may be avoided by a General Ruling, and (b) if the answer to (a) is in the affirmative, whether a General Ruling should be made in all the circumstances of the case. I quite accept that s. 126(f)(g) applies to the Commission constituted as a Full Bench. If in the course of wrestling with the question whether to make a General Ruling in matter no. B879 of 1999 the Commission forms the view that in avoiding a multiplication of enquiries it will disable itself from discharging the duty cast upon it by s. 126(f)(g), the question whether the Commission should refrain from making a General Ruling will squarely arise. It may well be that the Commission will conclude that an instrument by instrument approach, or even an enterprise by enterprise approach, is more appropriate than the declaration of a General Ruling. It may be that the Commission will conclude that a General Ruling may appropriately be made provided certain industrial instruments and/or industries and/or enterprises are corralled off by an interim exclusion under s. 287(4) until the circumstances of the industrial instrument and/or industry and/or enterprise may be more fully examined. All of that is a matter for the Commission. Some criticism has been made of the drafting of the application by which The Australian Workers’ Union of Employees, Queensland (AWU) instituted matter no. B879 of 1999. Doubtless the application has to be construed as pleading rather than as a log of claims. However having regard to ss. 320(2) and 329(c), (d) and (e) it is open to the Commission to interpret the application in a robust way and, if necessary, require amendment or provision of further and better particulars to make clear what is sought. The real problem with the application, I suspect, is that the outcome sought is not an obligation to encourage employees to join an industrial association and maintain membership of that industrial association, but a clause which goes further and nominates the industrial association or associations to which the obligation relates in the case of every industrial instrument. The mechanics of drafting a General Ruling capable of producing such an outcome in the case of every industrial instrument are daunting. Perhaps is was for that reason that at 278 the Full Bench observed “--- practical impediments may made their adaptation difficult were either (application) to be granted.”. Further, if -- 2 of 3 -- 12 May, 2000 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 23 determining which industrial association or industrial associations are to be named in the case of each industrial instrument requires multiple inquiries about particular industrial instruments within matter no. B879 of 1999, one might wonder what is to be gained by dealing with the matter by way of a General Ruling. But those are all matters for the Full Bench when it has more fully educated itself about the issues with which it is being asked to deal. It is then contended that the application giving rise to matter no. B879 of 1999 is incompetent because the relief which it seeks is relief which the Commission cannot grant. For each of two reasons it is put that grant of the relief sought would contravene s. 126(a). First, it is put by Mr Williams that “discriminatory provisions” at s. 126(a), which is not defined, takes its meaning from the definition of ‘discrimination’ in the dictionary at Schedule 5. The dictionary relevantly, defines discrimination to mean discrimination that would contravene the Anti-Discrimination Act 1991. It is then submitted, for reasons which it is not presently useful to outline, that the relief sought by the AWU would contravene the Anti- Discrimination Act 1991. Section 110 is said to permit no more than the inclusion in an industrial instrument of a clause allowing conduct otherwise allowable under the law. I have great difficulty with the submission. To begin with, if s. 110 has the limited effect contended for, whether the relevant head of power is s. 2 of the Constitution Act 1867 or s. 2(1) of the Australia Act 1986 (C’wth) and Australia Act 1986 (UK), s. 110 would not be a law at all, compare the notion of “a law” developed by Kitto J. in Fairfax v. Federal Commissioner of Taxation (1965) 114 CLR 1 at 7. On that view, s. 110 should in consequence of s. 9 of the Acts Interpretation Act 1954, be read as permitting the inclusion in industrial instruments of a clause allowing conduct not otherwise authorised by law. In any event, reading the Act as a whole and in a natural way, it would appear that the legislative scheme is that if a clause proposed for inclusion of an industrial instrument falls within s. 110 inclusion will not contravene s. 126(a). The second contention, propounded by Mr Murdoch, SC is that the application is incompetent because it seeks to encourage financial membership of an industrial association rather than membership of an industrial association. So indeed it does. But s. 110(1) permits inclusion in an industrial instrument of an encouragement provision which “may encourage a person to join or maintain membership of an industrial association.”. The AWU may well succeed in making out an argument that in the case of some (perhaps many) industrial associations membership cannot be maintained without the maintenance of financial membership. (The more immediate point, of course, is whether the AWU can satisfy a Full Bench that it should make a General Ruling to avoid a multiplicity of enquiries, when the consequence of adopting that approach is that multiple enquiries about membership rules will be conducted within the trial leading to the making of the General Ruling.). Insofar as the appeals relate to the application for a General Ruling in matter no. B879 of 1999, I consider the appeals to be without substance. The QCU’s application seeking a Statement of Policy is said to be incompetent also. The submission is that the application, in its amended form, fails to stipulate who is to be burdened with the duties prescribed by the clause, viz fails to nominate by whom it is that the acts of encouragement are to be carried out. (In its unamended form the application sought to impose the duty on the employer.). It is said that a Statement of Policy made in terms of the amended application would not be a Statement of Policy at all, because it would not be capable of being inserted in an award on application by a party to an award. Although the matter has not been argued I consider that I may safely adopt the approach that the presence of an express (and limited) power to make a Statement of Policy precludes construction of more general powers as granting authority over the same subject matter. However, given the history of Commission principles and guidelines, and I respectfully adopt the observations of the Full Bench in Queensland Council of Unions v. Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Others AND The Australian Workers’ Union of Employees, Queensland v. Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Others 162 QGIG 359 at 359-360, I reject the proposition that all the Commission may do is develop a draft clause which, upon application, may be inserted in a particular award. Certainly, the Commission has power to do that and has done so, see e.g. Declaration of Policy, Occupational Superannuation, 132 QGIG 1105. But the Commission may also develop a Statement of Policy to guide a Commissioner sitting about how certain industrial matters are to be dealt with. A Commissioner sitting alone who gave effect to such a Statement of Policy by inserting in a particular Award a clause drafted by the Commission in language appropriate to the existing wording of the Award, would, in my view, within the meaning of s. 288(2), give effect to the Statement of Policy by inserting it in the Award. I dismiss the appeals insofar as they relate to the QCU application. I reserve the questions of costs. Dated this twenty-eighth day of April, 2000. D.R. HALL, President. Appearances:– Mr J. Murdoch SC instructed by Minter Ellison, Lawyers for Australian Mines and Metals Association (Incorporated) Queensland Branch. Mr D. Williams of Minter Ellison, Lawyers, for Grainco Australia Ltd; Australian Mines and Metals Association and its members; Consolidated Rutile Limited; Cape Flattery Silica Mines Pty Ltd; Dalrymple Bay Coal Terminal Pty Ltd; Century Drilling Limited; Eurest Australia; Roche Bros Pty Ltd; MIM Holdings; Placer Pacific Osbourne Mine; BHP Minerals; Byrnecut Mining Pty Ltd; Comalco Aluminium Ltd; Ausdril; Peabody Mining Services Pty Ltd; and RGC Thalanga. Released: 27 April 2000 Mr A.K. Herbert instructed by Sciacca’s Lawyers, for The Australian Workers’ Union of Employees, Queensland. Mr D.R. Dawes for the Queensland Council of Unions. Mr G. Power for Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers. Mr R. Livingstone of Livingstones Australia for the Queensland Cemeteries and Crematoria Association; Queensland Funeral Directors Association; John Paul College; Aviation Group Handling; Boral Construction Materials; Boral Quarries; Queensland Friendly Societies Pharmacies Association Industrial Organisation of Employers; Queensland Nursery Association Industrial Union of Employers; Slacks Creek Auto Barn; TAB Queensland; Queensland Private Childcare Centres Employers Association of Queensland Industrial Organisation of Employers. -- 3 of 3 --