Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v The Seamen's Union of Australasia, Queensland Branch, Union of Employees and Others [1995] QIRC 374 (1995) 150 QGIG 167

166 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [8 September, 1995 8 September, 1995) QUEENSL AND GOVERNMENT INDUSTRIAL GAZETTE 167 ##### ### ## # ######### ## #### ###### ##### ############### ### QUEENSLAND INDUSTRIAL RELA TlONS COMM I SS ION Industrial Relations Ac1 I 990 s. 45 - rationalisation of industrial organisations Australian Liquor, Hospitality and Misce ll aneous Workers Union, Queensland Branch, Union of Employees AND The Seamen's Union of Australasia, Queensland Branch, Union of Employees and Others (No 8l519of 1994) CHIEF INDUSTRIAL COMMISSIONER HALL CO MMISSIONE RS BOUGOUR.E, BLOOMFIELD 23 August 1995 Consent to Legal Representat ion - Wi thdrawal of Consent - Leave to Withdraw Refus ed - Matter about Ru les of Industrial Organisations of Employees - Leave to Appear by Counsel Granted. DECJSlON This mailer has been before the Commission on a number of occasions. Materially, when it was before Commissioner Bloomfield on 8 May 1995, Mr Herbert of counsel appeared fo r The Australian Workers' Un ion of Employees, Queensland and Mr Payne, a partner in the fim1 of Na ll , Payne and Craswell (Solicitors) appeared for The Seamen's Un ion of Australasia. Queensland Branch, Union of Employees. That is perhaps of no moment. The matter of legal representation was not touched upon. It was otherwise when the matter came before the Commission as presently constituted on 31 May 1995. Once again Mr Herbert appeared for The Australian Workers ' Union of Employees, Queensland and Mr Payne appeared fo r The Seamen's Un ion of Australasia. Queensland Branch, Union of Employees. On that occasion the presiding Commissioner asked '· Is th ere any objection to the appearance by Mr Herbert and by Mr Payne?" No objection was raised. We said " We grant leave to appear." (Wi th the benefit of hindsigh t. we were in error in granting leave to appear. It seems to be the effect ofs. 105(1)(d)(1) that when consent is given Lhere is a statu tory right to appear without the need for leave.) There was some outli ning of the position taken up by the various parties, followed by an attempt to set dates which was expressly conducted on the basis of the availability of counsel. After the dates had been set the presiding Commissioner en quired " Is there any objec ti on to anything that has been proposed?" No objection was raised. We have set forth the even ts of 31 May 1995 for good reason. The Seamen ·s Union of Austra lasia, Queensland Branch, Union of Employees has subsequently sought to argue that it did not consent to The Australian Workers' Union of Employees, Queensland being represented by counsel. We consider lhat the silence of Mr Payne when confronted with a direct question, his part icipation in setting dates based upon the availability of counsel and his fa ilure to take advantage of the fina l opportunity to object sufficiently manifest consent for the purpose ofs . 105(1)(d)(i). It was not umil the matter came before the Commission on 28 July 1995, almost two months later, that Mr Payne indicated tha1 his clien t proposed to o bj ect to the representation of The Austra lian \Vorkers ' Union of Employees, Queensland by counsel. The hearing on that pre li minary point was adj ou rn ed until 11 August 1995. It seems to us to be plain that ·'consent" at s. I 05( I )(d)(i) cannot mean '"continuing consent"'. If "'consent'" were so construed counsel who presumed to ask a d ifficult question or make a submission prejudicial to the opposition might be pun ished by the withdrawal of consent. Notwithstanding the way in which Ms Long who now appears for The Seamen's Union of Australasia. Queensland Branch. Union of Employees puts her case, we consider th at the question which her client really poses is whether the Commission has the power to allow a party to withdraw a consent pursuant to s. I 05(l)(d)(i) and, if it does, whether this is an appropriate case in which to exercise that power. The Commission is of course, a statutory tr ibunal. The balance of authori ty is that a statutory tribunal has no inherent power and that the authority for its acts must be found in the legislation by which it was established, see levoune v Bacoulis (1935) AR (NSW) 126, Carmody Clark ( 1989) 19 NSWLR 158 and Consolidated Pre ss Holdings lid v Wheeler ( 1992) 84 NTR 42. However, a statutory tribunal has, by implication, the power to do that which is incidental to the exercise of powers expressly vested in it. see NCSC v Bankers Trus1 Australia Lid. (I 989) 9 1 ALR 321 and Sparks v. Bel/oui ( 1981) W.A.R. 65. We cons ider the power to pem1it withdrawal of consent in a proper case to be a co ro llary of the power (in truth the ob ligation) to detennine matters on the basis of equ ity, good conscience and Lhe substantial mer its of the case, having regard to both the interests of the persons immediately concerned and of the community as a whole (s. 9 1(2)), compare Regina v Craske, ex parte Metropoliwn Police Commissioner (I 957) 2QB 59 I at 600 per Devlin J. We are not however satisfied upon the material before us that this is a proper case in which 10 pennit the withdrawal of consent. Ms Long puts her case upon the basis that The Seamen's Union of Australas ia. Queensland Branch, Union of Employees has now decided to run a ''meri t case" ralher than the case which tJ1at industrial organisation had prev iously outlined to the Commission. The '"merit case", which appears to us to be as yet poorly fonnu lated. seems to be related to the nature of the work perfom1ed by certain persons and considerations of maritime safety. There are three points to be made about that - 16303 _ 1.DOC -- 1 of 2 -- 168 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE (8 September, 1995 (I) lt is implicit in the submission that The Seamen ·s Union of Australasia, Queensland Branch. Union of Employees seeks to withdraw consent because the organisation has changed its mind. It does not seek to withdraw consent because it was mis led, that being a proper basis for the grant of leave to withdraw. see Studders v Eaton, ex par/e Eaton 1.1939] ST.R.QD. 191 at I 93 per Webb J. (in course of argument). (2) To say that the consenting party changed its case is not necessarily to say the case has changed. Here. The Australian Workers' Un ion of Employees. Queensland wishes to put the case which it previously outl ined That case is that !he representation order sought goes to the resolution of difficulties between that industrial organisation of employees and the Australian Liquor. Hospitality and Miscellaneous Workers Un ion, Queensland Branch. Union of Employees. It is contended that on a proper construction of the existing rules of The Australian Workers ' Union of Employees. Queensland it already has representalion rights in respect of all industries and callings referred to in those parts of the order to which The Seamen's Union of Australasia. Queensland Branch. Union of Employees takes exception. It is put that save for the exclusion henceforth of the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Oranch, Union of Em pl oyees the order would not confer on 1l1e Australian Workers· Union of Employees, Queensland something which that Union does not a lready have. The Seamen ·s Union of Australasia. Queensland Branch. Union of Employees will have to rep ly to that argument. The Seamen's Union of Australasia. Queensland Bnmch, Union of Employees change of mind does no more than, on the most favourable view of it. add an extra issue 10 the case. (3) There is substantial au thority for the view that in civil matters. consent once given may not arbitrarily be withdrawn. see Re Wedge; Wedge v Panter [ 1908] 98 LT 436 and S1udders v Eaton, ex parte Eaton [1 939) ST.R.QD. 191 at I 96 per E.A. Douglas J. To purport to withdraw consent two months afier it has been given. and alter the other party has prepared its case on the basis of that consent. on the ground of"change of mind .. seems to us relevantly to be arbitrary. We note that whilst The Seamen 's Union of Australasia. Queensland Branch. Union of Employees boldly asserts that The Australian Workers· Union of Employees. Queensland will not be prejudiced if denied representation by counsel, 111e Seamen's Union of Australasia, Queensland Branch. Union of Employees has taken the precaution. through its soliciiors, of securing representation at the bar table by a law graduate who has chosen not to seek admission. If we be wrong to refuse leave to withdraw the consent given on 31 May 1995. we would in any event grant Mr Herbert leave to appear pursuant lo s. l 05( I )(b)(ii)(B). Ms Long relies upon the decision in QSSU v FMWU (Qld) (1992) I 40 QGIG 465 as authority for the proposition that a s. 45 matter is not a matter about the rules of an industrial organisation. That was a case under s li ghtly different legislation. in which the only basis for asserting that the proceedings did relate to the rules was that if a representation order were made the nominated Commissioner wou ld be obliged to perform the task o f making appropriate alterations to the rules of the orga111sauons involved unless the Full Bench held that that step was unnecessary. Neither of the two industrial orga111sat1ons o f employees mvolved had an exisung rule giving it coverage of the persons lo whom the proceedings related It 1s not m the least surpris111g the Full Bench held that that matter was not a matter relating to the rules 1 his case was entirely different. Mr Herbert's case is about the construction of his clients existing rules and little else. Mr Payne acknowledged as much on 3 1 May 1995. The Seamen·s Union of Australasia, Queensland Branch. Union of Employees also sough t to derive some support from the decision of Moynihan, P. in Queensland State Service Union of Employees v Federated Miscellaneous Workers Union of Australia, Queensland Branch. Union of Employees ( 1992) 14 1 QGIG 375 . With respect, it seems to us that the President held that on the circumstances of that case it was open to a Full Bench to have concluded that the matter was not one relating to the rules of the industrial organ isatio n. That suggests to us that the question whether a matter is about the rules will have to be answered on a case by case basis as a matter of mixed law and fact. The decision in QA'U v QC/ ( 1993) J43 QGIG 252 was expressly restricted to the circumstances of the ca5e. Granted that the matter is about the rules of an industrial organisation. we consider that we should exercise OLlr discretion in favour of Mr Herbert's client To deny The Austra lian Workers' Union of Emp loyees. Queensland the right to representation by counsel in circumstances in which The Seamen's Union of Austra lasia. Queensland Branch. Union of Employees has available to it the services of a person trained in law though unadmittcd would be unfair to The Australian Workers' Union of Employees. Queensland and in our view, contrary to the public interest. Further, we consider that we would be greatly aided to have counsel 's submissions in a case which is about difficult questions of construction. For those reasons we consider Mr Herbert is entitled to continue to appear by consent or by virtue of leave granted as aforementioned. Dated this twenty-th ird day of August. 1995. D.R. HALL. Chief Industrial Commissioner. R. W. BOUGOURE. Commissioner. A.L. BLOOMFIELD. Commissioner. Appearunces:- Ms K. Bow for Australian Liquor. Hospitality and Miscellaneous Workers Union. Queensland Branch. Union of Employees. Ms J. Long of Nall Payne Craswell (Solicitors) and with her Mr R. Cameggie for The Seamen's Union of Australasia. Queensland Branch, Union of Employees. Mr A. llcrbe11. instructed by Sciacca & Associates for The Australian Workers' Un ion of Employees, Queensland. Mr A.S. Camp on behalf of Daikyo Australia Pty. Ltd. and all subsidiar) companies. Operative date: 11 August 1995 Decision - Legal Representation to Continue Released: 23 August I 995 16303_1.DOC 8 September, 1995] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 169 -- 2 of 2 --