Australian Sugar Milling Association, Queensland, Union of Employers v The Australian Workers' Union of Employees, Queensland, Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland and The Electrical Trades Union of Employees of Australia, Queensland Branch [1999] ICQ 66 (1999) 162 QGIG 265

#####lt###lt#######################################lt##############################lt#lt#####lt#################################ff INDUSTRIAL COURT OF QUEENSLAND Industrial Reimions Act /999- s. 34 J (I) - appeal from decision of industrial commission Australian Sugar Milling Association, Queensland, Union of Employers AND The Australian Workers' Union of Employees, Queensland, Automotive, Metals, Enginee ring, Printing and Kindred Industries Industrial l.Jnion of Employees, Queensland and The Electrical Trades Union of Employees of Australia, Queensland Br-.inch (No. CS3 of 1999) PRESIDENT HALL 20 October 1999 DECISION 214548-26 -- 1 of 2 -- 266 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 November, 1999 On 30 June 1999 a Full Bench of the Queensland Industrial Relations Commission released a decision about the Sugar Industry Award State. The Award dealt with each of seven matters which remained unresolved notwithstanding protracted negotiations between the parties to the proceedings. This appeal goes to the decision of the Full Bench on two of the seven matters. The first decision which is subject to appeal is the (majority) decision of the Full Bench refusing to insert provisions relating to part-time and casual employment in the Award. The second decision of the Full Bench against which the appeal is brought is a decision adopting the draft of the facilitative clause favoured by the employee organisations party to the proceedings, rather than the draft favoured by the employer organisations and employer's party to the proceedings. The starting point of the appeal against the decision not to alter the Award to enable the employment of part-time and casual employees is s. 134 of the Workplace Relations Act 1997. I accept the appellant's submission that because s. 134 uses both the word "appropriate" and the word "possible", it would be wrong to treat"possible" as meaning "appropriate". At the same time, because s. 134 also uses the verb"must", it would be wrong to treat the obligation at s. 134(3)(b) to ensure that an award, whenever possible, contains provisions enabling the employment of regular part-time employees as an obligation to include such provisions whenever it is physically possible. Indeed, Mr Martin SC who appears for the appellant conceded so much. The obligation at s. 134(3)(b) appears to me to be an obligation to insert provisions enablmg the employment of regular part-time employees which falls short of an absolute obligation to include such a provision, whilst imposing an obligation upon the Commission to take action to include provisions enabling the employment of regular part-time employees notwithstanding that the Commission 1s not a1:firmat1vely satisfied that it is appropriate to do so. In Italiano v. Barbaro (1993) 40 FCR 303 at 329, a majority of a Full Court of the Federal Court (Neaves, Burchett and Whitlam JJ) observed" '[p]ossible' is of course very nearly a synonym for 'feasible'; in standard English 'feasible' may be the word of choice (as it's French roots suggest) where the possibility of doing something is being considered as distinct from possibility in a more general sense". "Possible" at s. 134(3)(b) is used in the sense of doing something, viz. causing a provision to be inserted in an award. It seems to me that if one had to use a word to describe the meaning of"possible" at s. 134(3)(b), one would use the word "feasible", provided always that caveat is added that a search for feasibility is not to slip into an inquiry about appropriateness. Before going to the decision of the majority of the Full Bench it is necessary to record that the decision is attacked by applying forensic forceps to the decision to tease out the threads. The decision is not attacked by way of going to the transcript and submitting that if"possible" rather that "appropriate" be the test, the decision is manifestly unreasonable. In those circumstances, since the passage is brief, it is convenient to reproduce the reasons advanced by the maJority for rejecting the submission that provisions enabling part-time and casual employment should be included in the Sugar Industry Award State. Passages as follows: "Having considered the submissions of all parties on this point, we have formed the view that the insertion of casual and part-time provisions within the Award is not appropriate. We ha5ten to add, however, that we were not dissuaded by ASMA and CSR's claims that there may exist a need to have access to casual and part-time labour on occasion within the sugar industry. For our part, we would prefer the parties to address this issue through the process of enterprise bargaining. It is not enough for ASMA and CSR to state that, because difficulties have been encountered in one area of the State for the in.ser1ion of :;uch clauses within an enterprise agreement, a general clause within the Award needs to be introduced. We have previously stated in matter B2169 of 1996 The Australian Workers' Union of Employees, Queensland and Urs and The Australian Sugar Milling Association, Queensland, Union of Employers and Ors (161 QGIG 72-74) i.-osued on 14 May 1999 that, 'The sugar industry, as a consequence of its uniqueness, has often been treated differently from other industries, both rn Legislation and in practice. Therefore, it is well established that much of what occurs within the sugar mdustry is seen as separate and discrete from other Awards of the Commission.'. In elaborating upon the aforementioned comments, we are conscious of the need for harmony to be actively fostered within the sugar industry to ensure that the intere."1.s of all parties are addressed. Contrary to many other industries, specific timetrames exist within the sugar industry which must be met. A strong work practice has existed within the sugar industry for most of its history. We do not feel constrained by that history and acknowledge the contemporary nature of the industry and its particular dynamics. The 'work practice' to which earlier reference has been made centres upon the particular nature of the industry, with its two discrete seasons - i.e. the crushing and maintenance sea,ons. In communities where sugar mills operate an established pattern of work exists for the local community. Traditionally, seasonals employed in the crushing season more often than not are re employed during subsequent seasons. These employees gain expertise through this practice and are a cTIIcial element within the �ll workforce. Against this background, were it imperative to utilise casual and part-time employment within certain parts of the sugar industry, we would prefer to see it occur through consultation and agreement directly between employer and employee. In this manner, both mterests could be catered for. On occasion, there may well exist reluctance on the part of some employee organisations to discuss the issue under the auspices of enterprise bargaining, but likewise, it is often the ca�e (although not specifically stated in this instance) that employer organisations are disinclined to entertain some propositions proposed by employee organisations within a similar process. Impasses such a, this should not dissuade the Commission from encouraging parties to continue enterprise bargaining. To do otherwise would be contrary to the legislation. We are mindful of the fact that there does exist within some enterprise agreemenl� within the sugar industry provisions which cater for the employer's concerns in this regard. This would indicate to us that, generally speaking and with exceptions stated in this case, there is no blanket opposition to discussion of the issue within the industry between the relevant parties. In this contex1, we believe that the Objecis of the Act are addressed by the decision we have reached m this matter. See s. 3(b), (c) of the Act. Those sections are cited hereunder. 'Principal object of the Act 3. The principal object of this Act is to provide a framework for cooperative workplace relatiom that supports economic prosperity and welfare by- (b) (c) ensuring the primary responsibility for determinmg matters affecting the relationship between employers and employees rests with the employer and employees at the workplace or enterprise level; and enabling employers and employees to choose the most ,ippropriate form of agreement for their particular circumstances, whether or not that form is provided for by this Act: Therefore. we reject the applications of both ASMA and CSR in this regard.". 5 November, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 267 Understandably, the appellant focuses on the last word of the first sentence, viz. "appropriate". It must however be noticed that the majority did not say that they were not satisfied that insertion of the provisions was appropriate. The majority expressly found that it was "not appropriate" to include the provisions. If the insertion of the provisions was "not appropriate", one might wonder how insertion of the pmvisions could be "feasible". Given the general inelegance of the passage, see especially the second sentence, one cannot be confident that the p nma facza d1stmct10n between lack of satisfaction that insertion of the provis10ns was "appropriate" and satisfaction that insertion of the provisions was "not appropriate" was intended by those who sculptured the passage. However, if one reads on, the thrust of the decision seems to be that it would be disruptive of harmony in the industry to impose a "one model suits all" provision enabling the employment of part-time and casual employees. Such a finding, and it is unchallenged, justifies the "not appropriate" conclusion. In those circumstances the majority took refuge in s. 3(b) and (c). The majority might perhaps have mentioned also s. 122(d) which refers, not to the outcome of the performance of the Comm1ss10n' s functions and the exercise of its powers, but to their performance and exercise. It is to be noticed that s. 122(d) is not an "object" to which a reference may be made to resolve an ambiguity. By s. 123(1) "the commission must perform its functions under this chapter in a way that furthers the objects of the Act and, in particular, the objects of this chapter". (It is scarcely necessary to add that s. 134 is contained within Chapter 9.) Given the protracted nature of the negotiations which preceded arbitration on the seven outstanding matters, it may be conceded that if the majority of the Full Bench had come to the conclusion that insertion of the provisions was "possible" it would have been unreasonable to refrain from inserting the provision and to force still further negotiations, whether in reliance on s. 3(b) and (c) or s. 122(d). However, once they had concluded that because of the nature and history of work in the sugar industry that the risk to harmony denied feasibility to the proposal, it seems to me that it was not unreasonable, certainly not so umeasonable as to amount to an error of law, to resort to further negotiation. After all, there are pockets in the sugar industry which cater for the employers' concerns. �egotiations which have failed, on what I have been told about the matter, seem to have been negotiations to resolve the matter on a state-wide basis. It may well be possible to resolve the matter, perhaps by the use of differently worded clauses, in some, or perhaps ultimately, all localities. In all those circumstances I dismiss the appeal against the decision relating to the insertion of provisions enabling part-time employment. It is contended by Mr Herbert of counsel who appears for the respondent that s. l 34(3)(b) is irrelevant to the question whether a provision enabling the employment of casual employees should be inserted in the Award. For myself, I am rather of the view that because of the way in which the majority dealt with the matter, if the appellant's argument with respect to regular part-time employment had succeeded, the Commission's decision with respect to casual employment would have fallen with the decision with respect of regular part-time employment as in-severable from it. However, I do not need to decide the point. Rejection of the appeal about regular part-time employment inevitably leads to rejection of the appeal about casual employment. The appeal against the decision of the Full Bench relatmg to the facilitative provision is two-fold. First, it is said that the clause ultimately adopted is invalid under s. 109 of the Industrial Relations Act 1999. It is submitted that the provision adopted disadvantages a person for a prohibited reason, in that, contrary to s. 104(1)(a), it disadvantages a person who is not a member of an employee organisation. Given the history of the provision adopted I am unable to accept that that is so. The employer organisations and the employers sought a facilitative clause of six paragraphs. The claim was that the first paragraph should be in the following terms: ''Facilitative award provisions such as: Hours of Work (day/shift work), .'vl.eal Breaks, Ten Ordinary Hours, Staggered Starting Time and Finishing Times, Spread of Hours and Working Outside 6am to 6pm can be negotiated between management and employees who are directly affected by such proposals."; '·Employees shall havc the right to be represented by their local industrial organisation official/s.". The employee organisations did not oppose what might be described as the first limb of the proposed paragraph one. They did seek a different second limb. The employee organisations sought a second limb in the following terms: ··Employees shall be represented by their local industrial organisation delegates and shall have the right to be represented by their local industrial organisation official/s.", Having regard to the pronoun"their" it seems to me to be tolerably plain that the second limb of the paragraph, in each of it.s versions, was always intended to confer rights upon employees who were members of employee organisations. Employees who were not members were left to act for themselves or seek representation by a person other than an employee organisation. Neither form of the second limb disadvantaged non-members in any way. Persons who were not members of an employee organisation have no right to he represented by it. Second, the decision relating to the facilitative provision is attacked on the basis that the Full Bench failed to give reasons for its decision. It is not contended that the Queensland Industrial Relations Commission has an obligation to give reasons in all cases. It is put that the obligation arises in this case because: (a) there have been very substantial arguments about the appropriate form of paragraph one; and (b) the form of paragraph one ultimately adopted significantly impacted upon employees who were members of employee organisations in that it was made mandatory that they be represented by "their local industrial organisation delegate/s". The respondent submits that there is no need for reasons where the reason is manifest. It is put that it is manifest that a "right" to representation may prove illusory m the face of employer pressure and that the Commission had plainly sought to protect employees by making claim that employees had no choice to exercise or refrain from exercising. That submission seems to me to be quite right. 1. have great sympathy with Mr Martin SC' s submission that the adoption of the employee organisations preferred version of paragraph one makes the facilitative clause as a whole mechanically unworkable. I suspect that that matter is picked up by the third last paragraph of the Full Bench's decision: "'The parties are directed to confer upon those areas where drafting of clauses is required to reflect the determinations of the Full Bench.". In any event, though the decision has been given, no order has actually been made. It follows that there will be ample opportunity to agitate the matter at the point where the Full Bench is asked to make the Award. lf the difficulty goes beyond drafting there is ample power to revisit the first paragraph. Indeed, it is a consequence of s. 710(4) of the Industrial Relations Act 1999 that the parties must have an opponunity to make submissions, and if need be call evidence, on the issue whether the legislative changes require a different outcome. I have not done that on the appeal agamst the majority decision because the lndustnal Relations Act 1999 is less helpful to the appellant than the repealed Act. I dismiss the appeal. No application is made for costs. Datect this twentieth day of October, 1999. D.R. HALL, President. Released: 20 October 1999 Appearances:- Mr G.C. Martm SC instructed hy y,foCullough Robertson Solicitors for the appellant. Mr A.K. Herbert instructed by Sciacca' s Lawyers for the respondent. QGIG 5/1 I /99 -- 2 of 2 --