Australian Mines and Metals Association (Incorporated) Queensland Branch v The Australian Workers’ Union of Employees, Queensland [2000] ICQ 2 (2000) 163 QGIG 109

18 February, 2000 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 109 ########################################################################################################################### 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. C76 of 1999) PRESIDENT HALL 4 February 2000 REPORT ON DECISION (as edited) In giving his decision from the Bench on 1 February 2000, President Hall stated:– “By application B879 of 1999, The Australian Workers’ Union of Employees, Queensland sought a declaration of a General Ruling upon the matter of union encouragement. By application B1049 of 1999, the Queensland Council of Unions sought a Statement of Policy with respect to the same matter. Pursuant to a direction of the Industrial Registrar, the applications were served on all registered industrial organisations and a number of other employer or employee groups who regularly appear in the Commission. By it’s response in both matters, the Australian Mines and Metals Association (Inc) Queensland Branch (AMMA), challenged the adequacy of the notice given for the applications. A number of clients represented by Livingstones (Australia) advanced similar arguments. The matter was raised again at a pre-trial conference on 22 November 1999. It was ultimately agitated on 23 November 1999. By decision dated 17 December 1999, now reported at 163 QGIG 1, the Commission ratified the directions of the Industrial Registrar and held that service in accordance with them was adequate notice. From that decision, AMMA and the various clients of Livingstones (Australia) now appeal. By s. 341 (1), the appeal is limited to error of law or excess or want of jurisdiction. Critical to the determination of the matter is the proper construction of s. 287 (2) which provides: -- 1 of 2 -- 110 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 18 February, 2000 ‘(2)Before conducting a hearing about the ruling, the full bench must – (a) give reasonable notice, in the way it considers appropriate, of its intention to conduct the hearing; and (b) give all interested persons and opportunity to be heard.’. The contention of the appellant is that ss. (2)(a) is to be read as if the words ‘to all interested persons’ appeared after ‘reasonable notice’. The argument is: (a) that unless those words are read into ss. (2)(a), the subsection is silent upon whom it is to whom notice is to be given; (b) that paragraphs (a) and (b) are upon related subjects; and, (c) that on a purposive construction, the group entitled to an opportunity to be heard should be the group entitled to notice of the hearing. Section 280 (2) of the Industrial Relations Act 1999, it may be added, had progenitors including the proviso to s. 13 (1) of the Industrial Conciliation and Arbitration Act 1961. Section 13 (1) provided: ‘13. (1) Power to declare general rulings. Qd. s. 9. The Full Bench of the Commission may from time to time declare general rulings relating to any industrial matter in order to prevent a multiplication of inquiries into the same matter: Provided that before entering upon the making of a general ruling the Commission shall give reasonable notice in such manner as it shall deem fit of its intention to do so and shall give an opportunity to all persons interested in the subject of such proposed general ruling to be heard.’. The then President of the Court, Mr Justice Hanger, had occasion to consider s. 13 in Re Basic Wage 50 QGIG 220. The proviso was not directly in issue, but it may be conceded that at page 221 His Honour did have occasion to summarise the proviso and summarised it in a way suggesting that the contentions now advanced by the various appellants are correct, viz – ‘from the requirement in the proviso to the subsection that notice of intention to make a general ruling and an opportunity to be heard, are to be given to all persons interested in the subject of the proposed general ruling, it would appear that the matter is one in which a number of persons will have a contemporaneous interest.’. The principle submission if ss. (2) (a) is so read, no hearing about a General Ruling would ever occur. (It is to be noted that the Commission must satisfy ss. (2) (a) ‘before conducting a hearing about it’s ruling’.) Having regard to the effect given to a declaration of General Ruling by s. 287 (8), the definition of ‘industrial instrument’ at schedule 5, and the breadth of the parties upon whom an award is made binding by s. 124 (as that section is enlarged by s. 5 and s. 6), it seems to me that the point taken by the respondents is well founded. It is difficult to read ‘interested parties’ at s. 287 (2) as meaning interested named parties to industrial instruments. The language ‘opportunity to be heard’ is reminiscent of s. 329 (b) (v), which grants power to grant leave to be heard to persons who are not parties. Prima facie, one might think that persons whose rights and obligations may be affected by a General Ruling should have some opportunity to seek to persuade the Commission to grant them leave to be heard. The Queensland Industrial Relations Commission does not know and can not know who all of those persons might be from time to time. In my view s. 287 (2) (a) requires no more than, before conducting a hearing about a General Ruling, the Queensland Industrial Relations Commission must, a reasonable time before the hearing, give publicity or notice, reasonable as to contact and format, ‘in the way it considers appropriate’. Once s. 287 (2) is so read, the criticisms of the Commission’s decision fall away. The obligation, it is to be noted, is not to give notice in an appropriate way. The obligation is to give notice in the way the Commission considers appropriate. Once the opinion of the Commission is acknowledged to be the measure of what is appropriate, demonstration of error of law becomes no mean feat. I must confess that at times the detail of the appellant’s submissions very much resembled the submissions which might be anticipated on an appeal by way of re-hearing from the exercise of discretion. Even assuming that the well-known rule in House v. The King 55 CLR at 504 to 509 is the appropriate measuring cast, the appellant has difficulty. In a case argued on the basis of serious statements from the bar table rather than evidence, it was perfectly understandable that the Bench would draw on its collective industrial experience. Acknowledging that a differently constituted Bench, driven by caution or by innovation, might have taken a different course, it was not unreasonable or plainly unjust for the Commission to adopt, by way of giving notice, the method of giving notice greatly favoured by antiquity and not hitherto subject to substantial or sustained public criticism, notwithstanding in the past ten years there have been two public inquiries, the Hangar Inquiry and the Gardiner Inquiry, at which such criticism might have been advanced. It was no sin to omit to consider the novelty of the General Ruling sought. That goes to the reasonableness of the content and format of the notice. Given the approach of the Full Bench, omission of reference to the likelihood of the notice coming to the attention of non-members of employee organisations was almost inevitable. The traditional approach has been adopted time and again where the General Ruling, if made, would affect the rights and obligations of such persons, eg. in the case of wage increases. If it was appropriate in such circumstances, it must inevitably be appropriate where the General Ruling, if made, will neither confer rights nor impose obligations on non-members. In my view, the appeal against the Commission’s decision in B879 of 1999 must be dismissed. The appeal in B1049 of 1999 is not sustainable. The power to make a Statement of Policy is vested by s. 288. It is not to the point that absent s. 288, such power might be found in more general powers of the Commission. The express limited power displaces any such power (The King v. Wallis ex parte Employers’ Association of Woolselling Brokers and others 78 CLR 529). Section 287 (2) is not replicated in s. 288. Given the proximity of the sections, the omission must be treated as a conscious omission. The omission is understandable. A Statement of Policy does no more than set a non-binding framework which a single Commissioner may follow, or without error of law, not follow on a particular occasion, Re Local Government Association of Queensland Inc, The AWU Queensland 150 QGIG 61 at 63, per Mackenzie, President. The time to focus on natural justice is at the point where the single Commissioner considers whether to give effect to the Statement of Policy and change rights and obligations. In those circumstances, the appeal in matter B1049 of 1999 is dismissed. I say nothing as to the continuing obligation of the Commission to observe the requirements of natural justice in both matters. I adjourn the Court.”. Dated this fourth day of February, 2000. By the Commission, [L.S.] E. EWALD, Industrial Registrar. Appearances:– Mr A. Herbert (instructed by The Australian Workers’ Union of Employees, Queensland) for the respondent. Mr C.J. Murdoch (instructed by Mr F. Pulsford of the Crown Solicitor’s Office) for the State of Queensland. Mr J.B. Spreckley for the Queensland Council of Unions. Released: 4 February 2000 Mr J. Murdoch (instructed by Mr R. Livingstone of Livingstones Australia) for Australian Mines and Metals Association (Incorporated) Queensland Branch, Queensland Cemeteries and Crematoria Association, Queensland Funeral Directors’ Association, John Paul College, Aviation Ground Handling, Boral Construction Materials, Boral Quarries, Queensland Friendly Societies Pharmacies Association, Industrial Organisation of Employers, Queensland Nursery Industry Association Industrial Union of Employers, St Stephen’s Private Hospital, Slacks Creek Autobarn, TAB – Queensland, Queensland Private Childcare Centres Employers Organisation of Queensland Industrial Organisation of Employers. -- 2 of 2 --