Federated Engine Drivers' and Firemens' Association of Australasia Queensland Branch, Union of Employees and Anor v Mount Isa Mines Limited and Anor [1995] QIRC 535 (1995) 150 QGIG 1047

1 1046 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [27 October, l 995 27 October, J 995] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1047 ####################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act I 990 s. 46 - appl ication to re-open Federated Engine Drivers' and Fi remens' Association of Australasia Queensland Aranch. Un ion of Employees and Another AND Mount Isa Mines Lim ited and Another (No. /31723 of /995) CHIEF INDUSTR.IAL COMMISSIONER HALL COMMISSIONERS NUTTER, BLOOMFIELD 12 October 1995 Application to Re-open - Application Abandoned - Informal Application fo r Order in Nature of a Stay - Relationship between s. 90( I )(a) and s. 45 - Held no Power - Held Grant of Order Not Convenient - Application Dismissed. 16820_ I.D OC -- 1 of 2 -- 1048 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [27 October, 1995 DECISION On 2 Octobe r 1995 the Federated Engine Drivers' and Firemcns• Association of Australasia Queensland Branch. Union of Employees (hereafler FEDFA) and The E lectrical Trades Union of Employees of Austra li a. Queensland Branch (hereafter ETU) filed an application (albeit 'wTOngly headed ORDER) to re-open B149 of 1993. B234 of 1993 and B8 I of 1994 in order that the organisations might see k the following o rde rs:- '•(i) That Order 10 made in the se matters by the Full Bench on 12 September. 1995 be varied as follows: '( I 0) The rules of the industrial organisations of emp loyees to which this Order applies do need to be altered and the mauer is referred to the nominated Commissioner on the day following the hearing and detennination of the appeal in matters no. B 149 of 1993. 8234 of 1993 and 881 of 1994'; (ii) Jn the alternative to paragraph (i) hereof that Order ( 10) be stayed or suspended until the day after the hea ri ng and de tem1 inat ion of the ap peal in matters no. 13149 of I 993. B234 of 1993 and B8 1 of I 994.". When the ap pl ication came on for hearing Mr Amerena of Counsel. who appeared fo r FEDFA and ETU, did no t press the application to re-open. Indeed. he frankly conceded that in the circums tances of the case that application could not be sus tained. However he submi tted that s. 90( I )(a) of the lnd11s1rial Rela1ions Ac, 1990 vests power to grant the orders sought, and that on 1he merits the d iscretion at s. 90 ( I )(a) should be exercised in favour of FEDFA and ETU. Neither Mr Murdoch of Counsel who appeared for Moun t Isa Mines L im ited (hereafter MIM) nor Mr Herbert of Counsel who appeared for The Australian Workers· Union of Employees, Queensland (hereafter A WU) complained that the application filed on 2 October I 995 did not acquaint them with the true nature of the case which they were to meet. As we understood it, the preference of MI M and A WU was to resolve the matter rather than to adjourn it. We are not satisfied that s. 90( I )(a) has the operation which Mr Amerena seeks to attribute to it. We accept that there is an "industrial cause m existence. However, it is not before this Full Bench. By the Order made on 12 September 1995 it was referred lo the nominated Commissioner. (In another dimension it is also before the President on appeal.) Section 45 contains no provisio n authorising this Full Bench to retake the matter from the nominated Commissioner. Mr Amerena 's submission is that s 90( I )(a) authorises this Fu ll Bench to make an Order bringing the industria l cause before it in order that the Full Bench may make an order in the cause which appears to be just. If that submission be correct. s. 90( l)(a) can only be characterised as vesting power of extraordinary width. We are conscious that statutory tribunals dea ling with industrial relations have on occasion been vested with extraordinary powers. We accept that an extraordinary power may be made docile and confonnable to ordinary notions of equity and justice by the exercises o f prudence and caution in the use of the power. However. in th is case there is no indication of the ba sis on which the exercise of the power is to be limited. Indeed, Mr Amercna contends that the words "any dec ision that appears to it to be just" must be given their full and widest meaning We have difficulty in accepting thal that broad construction may properly be p laced upon s. 90( I )(a) in its application to a case such as this. Section 90( I )(a) opens with the words •·subject to this Act" . Notwithstanding s. 32(8). the words must have some meaning. Section 45 vests the Commission with novel powers over the matter of industrial representation. The powers are of quite exceptional breadth. Once the decision in relation to representation is made. however, the sec tion seeks lo rest ri ct the power of the Commission to regulate the consequences o f the decision. The section charts a statutory path which the question, whether ru les should be altered in consequence of the Representation Order, is lO take. In the absence of a finding by the Full Bench that the rules of the industria l organisations concerned do not need to be altered. the Full Bench must refer the matter to a nominated Commissioner, s. 45(4). Once a matter is so referred the nominated Commissioner must dea l wi th the matter as described at s. 45(5). If the nominated Commissioner detennines that an a lteration of the ru les of the industrial organisa ti on is necessary to reflect the order of the Fu ll Bench. the alteration lakes effect on the day on which that detennination is made, s. 45(6). The se ction. or so it seems to us. is designed to deny the Fu ll 13ench and the nominated Commissioner the opportunity to modify the consequences wh ich wou ld ordinari ly and properly ll ow from a Representation Order in order to achieve some o ther industria l objec1ive or to mo ll ify disgnmt led litigants. TI1e existence of a power elsewhere in the Act directed to the same category of case. and condi tional upon the fonnation of an opinion that a dec ision appears to be just. would in our view wound the statutory regime which s. 45 seeks to estab lish. In our view the expression "subject to this Act" should be given full fo rce and effect and, at least in relation to the evaluation and (if need be) alteration of the rules consequential upon the making of the representation order, s. 90( I )(a) should be denied the operation which Mr Amerena seeks to attribute to it. We have considered whether, ifs. 90(1)(a) had the operation for which Mr Amerena contends, we should have exercised the power to make the orders sought by FEDFA and ETU. We have reached the conclusion that we would not make those orders. The case made on behalf of FEDFA and ETU is. infer alia. that the balance of the conven ience favours grant of the relief sought. It is said that if the nominated Commissioner does en ter upon the tas k described at s. 45(5), one poss ible outcome is alteration of the eligibility rules of FEDFA and/or ETU by way of reduction of the width of those rules. It is said that one possible outcome on the appeal is that the appeal will be successful and that the applications which founded cases B149 of 1993, D234 of 1993 and 881 of 1994 will be dismissed. It is said that shou ld that chain of events occur FEDFA and/or ETU wi ll for a period of time suffer a diminution in their capacity to enro l employees into membership of the organisation subsequently be sh0\\11 to have been unlawful. We accept that FEDFA and ETU may be exposed to risk. But there is another risk. If the rel ief sought by FEDFA and ETU is granted. the nominated Commissioner will not proceed to assess whether the al teration of the rules of those organisations is necessary and (if so) to make the alterations. The appeal may be dismissed. The nominated Commissioner will then presumably enter upon the task described at s. 45(5). That is to say, that a chain of circumstance may be envisaged during whi t h employees wil l take out membership in FEDFA and ETU under eligibility ru les which subsequent events show should have been altered pursuant to s. 45 (5). It is now clear that the rules of FEDFA and ETU may not be so altered so as to require lhe ejection of those persons. MI M an d A WU have always maintained that with changed eligibility rules and the effluxion of time the paltem of membership wi ll come to mirror the representation order and that that circumstance wil l be of benefit to them. There can be no doubt that if the orders sought are made there exists the potential that FEDFA and ETU wi ll recruit em ployees of MIM at its lease within what rn,ght be described as the "potentially disputed" category. The potential ramifications of granting the orders is that rEIJFA and ETU will be able to do so. If the appeal is dismissed, the number of emplo) ees within the "poten ti ally disputed·· category who have taken ou t membership tn FED FA and ETU may be of significance in No 8828 of 1995 168 20_1.DOC 27 October, 1995] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE Some of the c ircumstances which led this Full Bench to make the Representation Order that it did ma1 a lso be worsened to the detriment ofMIM. On balance, since ei ther rEDFA and ETU or MIM and AWU must be exposed to risk. alter weighing the ri sks we consider that the proper course is to allow the risk to fall upon the litigants who were unsuccessful rather then the litigants who were successful. It was for those reasons that on 4 October 1995 we dismissed the application. Dated this twelllh day of October, I 995. D.R. IIALL. Chief Industrial Commissioner. 13.J . NUTTER. Commissioner. A.L. BLOOMFIELD. Commissioner. Appearances:- Mr M. Amerena in structed bv Na ll Payne Craswell for the Federated Engine Drivers' and Fi~emens· Association of Australasia Queensland Branch. Un ion of Employees and The Electrical Trades Un ion of Emp loyees of Australia. Queensland Branch. Mr A. Herbert instructed by Sciacca and Associates for The Australian Workers· Union of Employees. Queensland. Mr J. Murdoch instructed by Hopgood and Ganim for Moun t lsa Mines Lim ited. Operative Date: NIA Decision - Stay Refu sed Released: 12 October 1995 ####################################################### 1049 16820_1.DOC -- 2 of 2 --