Federated Engine Drivers' and Firemens' Association of Australasia Queensland Branch, Union of Employees and The Electrical Trades Union of Employees of Australia, Queensland Branch v Mount Isa Mines Limited [1995] ICQ 31 (1995) 150 QGIG 1403

1402 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE f24 November, 1995 r 24 November, 1995) QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1403 QUFFNSLAND INDUSTRIA i COU R I' l11dus1rwl Rd111tons let I 99(} s. I I8 (2) - appeal from decision of mdu,tnal com1111,sion Fedcra1cd Engine Dri,crs· and hrcmcn, • \"ociaiion of Australa.,ia Queen,land Brandi. l "nion ol I mplO)c!C' and ll1e Ekcln~JI Trades U111on of hnplo)ecs ol \11stralia. ()ueensland Branch Inc Australian \\ or\...e~ • l 111011 of Fmployecs. Qu.:en,land /\ND \1ount b,1 \Imes Lim11eJ (No C53 of 1995; Jl.;$1 IC!- MA C ld·.1',./lf. PRf<;l!)I '-T 15 NO\emhcr 199~ Appeal - Decb1on of ln du,11,al Commi"ton - s. -15 of l11dmtr111/ Re/a11011.r fct /990 f,clusi,c Cll\crage ol \11 \I. Emplo)l!e, b) The Au~1rnhan Workers· Union of Empl<l)Ccs, Qucen,land and Au1011101ivc . Meiol, and Engineering lnduslr ial Un ion oJ' Fmplo)ccs. Queensland - Alleged lnadequa1,: Reasons h) I ull Bench ( apacit} ol The Australian \\1>rlers· l 111011 of Lmplo)ccs. (),11.:ensland Amendment of Rules Alleged \11sconccr11on by full Bench in 1L, Rol e on lhe Rc111 11tcr - Ground, of Appeal have no S11 1Nance ,,hen Considered in the (ome:1.1 of lhc Objc,11,es of s 45 Appeal Dismrs-.cd JlJl>(iMENT lh" 1> an appc.il b} the l"ederatcd En 1? tne Dri,er;· ,md I 1remc1h Assoc1a11on of Au,1r,1la,1a Quern,land Br,111d1. Union t>f Frnplo)ces (FED l·A) and TI1c Elec1rical Trades Union of 1-inployces ol Australia. Queensland Branch (I I UI aga111,1 the decision of !lie I ull Bench of the Ind ustrial Comm 1ss1on on I:? <;cph.:mber 19')~ 1n an applic.111011 under, 45 of the l11dustnal Rda1tons 1(1 /990. ll1e cllcct of1hc dcc1s1on \\J, that Ilic Aus1ralia11 Workers ll nion ol l:1nployces. ()ucensland (A WU) and the Aulo111o ti vc. Mcl.r ls and I 11!!ineering fndus1ria l Union ofEmplo)ccs. Quecn,land (A \11-l ') were g!\cn righis IC\ the c,clu,11,n of lhe appellanis 10 n:prc:.ent 1hc mdus1nal mtcrcsts under 1hc .-\cl ol employees of Mounl ba Mine, (1' 111\·1). T he principal ground argued was lht11 Ilic Full Bench had a dU I) 10 gl\e reasons bu t the reason, gi\cn h) the Full Bc1Kh \\CTC 111,1dcqua1e to re\cal \\h} 11 reached th decision Other grounds arg11cd ,pecifa 111\ were co1Kcmed \\llh whether lhe Full lknch ha d l,uled to consider pr oper!) \\hcthcr 11 shoul d reo pen find ing, 1hat it h,1d previou,1~ made and \\hclher there v.as c, 1dcnce upon "h1ch finJm.;, could ~ made about t!.c cap.icit) of the A \\l 10 proper!). adelj 1ld} or wmpctentl~ rcpn:sem 1he industn,tl mteresis of emplo} cc," ho cho-;c 11<11 10 Join the A\\ L. lo pu1 mailers 111 context. 1he I ull Bench 11rig111all) h.1d bcforL applica •on, upon \\lu,h II mJJc orders unJer ,.-15 \\l•1c ~ ga,e Ilic AWL and the AMI.I· c,cluSl\c n~•hts m n1111u,tll) c,du,11 c area, of MIM's opcra1 ions to represent under 1hc /\cl 1hc indu strial inlcresb o l" ernp lo) cc, m 1ho,c ilreas. J\hhnugh it "·" 1101 pan ol 1hc rre,cn1 respondents' case m 1hc original hc,tnng the 1-ull Bench thought that the probl ems exposed by 1hc cvidcrm: ,,ere of su ch magni1udc that .. major surgcr) •• '"'s nece,sal') The present rcspomknts' posi1ion was tha1 the problem, \\t>uld ,n tun,: b.: rc"'hed if ordc~ "ere made drsentitling umon, "ho had Jn c,is1ing rrghl to enrol ,md reprc-cnt member., e mpl oyed by MIM 10 enrol members 111 the future by reason or amendment of the rul es of lh n,c organi~at1ons lo prevent such enrolm,:111, CnJcrl) Ill!? thi, \\a, the notion that as per.ons left the compJn), cmplo) ment and ,,c,e replaced. compan) policy that emplo) ccs sh ould be members ol an appropriate union ¼Ould ensure that lh ;.;y joined a unio n wilh rcr n:sc nlativc ri g hl~ und er the Act and thai 1hcre \\Ould h.: a graduJI process "hcrcb} cxis1ing employees would k.i,c the e,duded un10n, ,nd join unions ,,ith rcpresentatne riglm. I ln\\cvcr the I ull Bench llmu~hl tha1 lhc problems c, poscd by the e, 1dem:c \\ere su,h lhJI 1101 onh ,hould cori-tderation be SI\ en 10 a rule ch,111gc 10 prc,c1111h.: excluded union, from cnrolhng members 111 the fu1ure hul al so lo rend er th e lll incapable of retaining existing member, cmplo)cd h} t-11\.1 a.~ m~mbers of1he union. The nominated Commi--;10ncr ad1n11mcd that ...,ue On appcJI. ( 149 QGIG 270) II "as held be) ond ju11,d1c1ion 10 m.1kc changes 10 the rul e, 111 the lauer re spec l. ·1he ma11c1 was thc1 cl11rc remilled to the Full Bench for recons1dcration. -\, lhc Coun\ decision indicates 1hc reason for remuun • the mauer \\JS that there had been emphasis in some areas or the rc,l-.on, on the de,1rabiht) of ahcring lhc mles of the excluded un ion s hi ensure 1h a1 MIM empln) ccs would hnvc to resign from th em. Tl1e rea-,on, also said· 1h,: maller should h.: rcm,11ed to 1he full Bench 10 further cu nsrtlcr what orders should h.: made appl y in g its mind within th e confines of thc.: more limilcu ,i.:opc of s 45 than thai ac1cd upon in the ongmal d~cr,11111 \;o douh1 if that "done further reasons ,, 111 e,plam the h,1,1, for !he ordcrs made .b was the ca.-e in the ong 11 1al proceedings. ll 1crc 1s no n.:.rson in view ol lh c Jac k of c h.ill eng.c of fiu dings of foc i for lh,: full Bench to reopen issues of fall unbs the htll Bench c,,ns1dcrs lhJt 11 should do so. l hc undcrl) mg a", 1p1ion of th~ orders 10 h.: pronounced in the-.c rroceedings 1s 1h,11 in 1hc ,1b,cnce of ,Ill) reason ,, h1ch seems pc1"S11asi,c to the l·ull 13ench 1he considcrn1io11 of orders 1ha1 should be made "ill rro"ccd on lhc (,.,sis of find111i:s of fact al read) made \\llh,><U the ne.:J In r<!Op.;n i,, e, \\hi~h \\ere. should h.i,e been or m1rh1 ha, e b.:.:n ,orgued full) dunng the lengthy hearing before the l' ull Bench:·. l hcrelore 1here wuld lle no douhl in the n nds of the mem be rs of 1hc I ull lknch \\hal Iheir funclH>n \\JS, It ts COil\ eni em al 1h1s lime 10 digress IO t he second gro und argued which was co11cc med with 11hclhcr 1hc foll Bench should h.1, e considered reope ning issues of fac1 and \\he1her lh< n:a,nns \\Cr c ,ufficienl Ill 111dica1e I.hat the} had d1rec1cJ 1he1r a11en11011 to thm 1,"1, The \\Ord, --unles, the I ull Bench co nsi ders 1ha t ii , l1011l d do so.. an d 111 th e ahscncc of any reason which seems pcrsuasi,c to 1hc Full Bend,.. 111 t he p,1,sage quo1ed above fonn the ba."' ,,t the ,uh, "sion I he Jpplicam, ,ubmission to lhe Full Bench h,1d h.:en 1ha1 11 lhe Full 11.:uch had not hcen intluenced b} the helief Ihm lhc Full llcnch had po11 cr LO n1;1kc a '"purge order" it was obli ged 10 e~plain and jus1if} 1h i,, 1ew in its rcawns. It \\J.~ su bmitted that 1h,: I u II Bend1 11 "I recon,1.f the e\ idcnce and in p.ut1cular the "eigh1 11 ,1.:cordcd 10 p.trticular 1 ,n, of the I!\ 1dence and mu,1 at the end nf 1h c process he ~a1isficd lh,11 its order, were jusltlied by the evidence 111 lighl of 1l1e rnnlined ~~npc ofs. 4~ In 1he pn.-sent J peal it \\a, ,uhmiucJ 1h.11 the full Bench had misconcci, cd its role on the rc 1mlll·r. It \\as suhrn itted once again that lhe Fu ll llcnch w,L~ r.:t1ui rcd 10 1\C1gh its prcv1011s findin gs uf fact and finding, t>n oilier 1,, 1c, "1!11 an '"prccia11011 of the li111ita1ton on the po"cr II Jlter me rulo.:, Tii. I 11hmiss1c>11 h hardl} conlrO\ ersial Ho\\e,cr 1he suhm1ss1nn \\as 111,,dc that the hill Bench uppeared to <1SSllllll' 1ha1 lhc onl) ren~on whid1 migh t be pi.:rsua.~ i ve lo ii in decid ing 10 reopen lindinμ, ol fact \\J., 11hether or 1101 the appdlanis had 1.,178_ 1.DOC -- 1 of 2 -- 1404 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE (24 November, 1995 c hall enged the find ings. ll was submi tted that the Full Bench's reasons did not e nable the appellant to ascertain whether the Full Bench should have reo pe ned issues of fact. It wa5 submiued that the Fu ll Benc h's reasons s aid just enough to indicate that it had not adopted t he correct process, whether or not it would have reached the same resu lt if 1h e correct p ro cess had been followed. Because the ques ti on of sufficiency of th e Full Bench's reasons is involved in th is ground as we ll as the major ground it is convenient to deal with them togethe r. ll is not disputed by the respondents' that 1he Full Bench had a duty to give reasons for its de cision. However it was s ubm itted by the respondents that the reasons given were not only sufficient but expressed in the clearest possible tenns that 1he Ful l Bench ha d reviewed the evidence and find in gs and decided that it wished to ma ke the same o rder wi th res pect to representative rights as on t he previous occasion. 1t was submitted t.hat it was neither possible nor sensible to read the present decision in isolation from what had been said in great detail in the earlier decision. Submissions were rnadc to the effect that, having made fi nd ings in strong te nns about the nature of the prob lem, it was inconceivable that the Full Bench wou ld not have 111 ade representation o rders aga in on th e second occasion. I now tum to th e decision itsel f. At the ou tset th e Full Bench sa id th e fo l lowing: " It see med to us not to be adeq uate to ask ourselves whether we sh o ul d hav e made the Order which we did ifwe had known that in di scharge of the statutory duty at s. 45 (5) the nom inated Commissioner mig lll no t make an alteration of the nature we envisaged. Reconsideration in our view means assess in g whether find ings might have had d ifferent weight or whether other find ings mig ht have been made if we had known that the ex clu sion from mem be rsh ip of ind ividuals who were already me111 bcrs of an industr ia l organ isa tion of emp loyees is beyond power.". It is pl ain from that passage that t he Full Bench did not simply adopt uncritically wha t it had decided before. The decision then said that the appellant's subm ission was essentially that because the fu ll extent of relief o ri g in ally given could not be given no remedy at all should be given. The Full 13ench questioned the logic of such a s ubmi ssion. It was plainly unimpressed by it and was enti tl ed to be. It restated that the respondents had no t asked for a '·purge rule .. and accepted that the relief sought by them, based on the proposition that if rights of representat ion were to change there would be changes to the industrial practices an d cu lt ure 0 11 the lease an d that changes 10 union membership would gradually follow, should be gra nted. Th e decis ion then po ints out that analysis of the evi den ce and the reasons for mak ing the representation order were se t out in the first decision. The decision appealed against clearly de mon stra tes that the Ful l 13ench appreciated that it was obliged to look again at the evidence to see if it may have "failed to grnsp the true re lat ionsh ip scope or weight of particular aspects of the evidence·• and that the Fu ll Bench had been referred helpfully to a num ber of passages of evi dence which were no t in te nded to be exhaustive. The decision continues: " ..... weighing "~1at has been sai d. an d discussing the ,natter amongst ourse lves, we arc satisfied t.ha t we wou ld have made the Order of 13 October 1994 if we had kn o,\11 tha t the rule varia tion pursuant to s. 45(5) "ould operate in prospectively only. Certainly. having re-read our findings nn<l our reasons and having look ed again at the evidence, it is the Order which we woul d wis h to make today.". The original decision contained ex tensive analysis of the ev idence after a very long hearing. The Full 13ench expressed its co11clusions in great detail. The Full Bench in the decision under appeal has said th at it reviewed t he evidence the fin d in gs and the su bmissi ons. T hi s was said in the context of a rem ittal which was made for the purpose of having the full Bench do these things and decide what order it wou ld make having rega rd to th e fact that th e powers were more limi ted than it had thought on the previous occasion. The Industrial Court decision had noted that there had been no attack on find in g of fact during the appeal but so th at the Full Bench should not assume that it was precluded from reopening issues o l' fac t if it conside red it should do so the poss ibi lity tha1 it might wish to do so if so persuaded was acknowledged. It was conceded that the Full Bench had not be en asked to do so and it is rather ingenuous in the circumst an ces to complain that t he Full Bench's reasons a re inadequate in not discussing the quest ion of reopen ing more specifically than it did. No r do the reasons impl y that the full Bench dismissed any noti on of reopening simply because there was no cha Ilcnge to the find in gs. There is also no substance in the complaint th at the l'ull Bench foiled in its du ty to g ive adequate reasons. It is abundantly pla in that the Full Ben ch gave due consideration to the matters to which it should have had regard. Grounds (a) and (b) therefore fail. The third ground was concerned with the sufficiency of evidence to make a fi nd ing tha t the A WU had sufficient resources to provide adequate representa ti on. It was submiued that th e finding in the original decision was dependent at least in part on an assumption that th ere woul d be an influx of mem be rs whose membership fees would fund the ne ed for increased services. It was submitted that there was no sufficient evidence of how the A WU wou ld fund the cost of representing non -members who did no t pay fees . Agai nst th is it was submitted by the respondents 1hat if the employees did not j oin the A WU th ere would be very little extra expense involved in representing them. It was also submitted that it was on ly assumption on the part of the appellants that th ere wo ul d 1101 be a shift in membership to re levant unions with representati ve rights. It was subm itted that the Full Bench had been e111itled to use its genc: ral industrial knowledge as to the capacity of the AWU. There was an adequate b,1s is for the find in g o ri g in ally made and I am satisfied that there is no substantial reaso n to hold tha t the fmding wa5 fa ls ified by the ina bili ty to requi re ex isting members of th e excluded unions to resign from those un ions. To the extent that other ma tt ers are ra ised in the ground s of appeal and in the submissions before me I am satislied that they have no substance when considered in the context of the o~jectives of s. 45. Ground (d) contains matters which were not separately developed in argument before me. As none of the grounds succeed t.lie appeal is dismissed. Dated thi s fif\ centh day ofNovembcr. 1995 . K G. W. MACKE>JZIE. President. Appearances:- Mr M. Amerena (instructed by Nall Payne and Craswcll) for t he Federated Engine Drivers' an d Firemens' Associat ion of Austra lasia Queensland 13ranch. Un ion of Employees and The Electri cal Trades Union of Emplo:r~es of Australia. Queens land Bran ch. Mr A. Herbe,1, with him Mr S. Sciacca for The Aus tralian Workers' Union of Employees. Queensland . Mr J. Murdoch (instructed by f lopgood and Gan im ) on be half of Mouni Isa Mines Limited. Operative Date: NIA Judgmcnt - FEDFA and £TU AND AWU AND M.I.M . Limited. Rel eased: 15 November 1995 1717 8_ 1.DOC 24 November, 1995] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1405 ◄ -- 2 of 2 --