Federated Clerks' Union of Australia, North Queensland Branch, Union of Employees v Automotive, Metals and Engineering Industrial Union of Employees, Queensland and Others [1995] ICQ 8 (1995) 149 QGIG 270

270 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [19 May, 1995 ####################################################### QUEENSLAND INDUSTRIAL cm:RT lndusmal Re/a/inns Ac/ I 99() An order was also made that the rules of industrial organisations to which the orders applied needed to be altered and the matter was referred to the nominated Industrial Commissioner. The follow 111 g passage from the decision is quoted bemuse it was. relied on by, the appellants as demonstrating an error 111 pnnc1ple. particularly 111 the last s. I l 8(2) - appeal from decision of industrial commission paragraph. Federated Clerks· Union of Australia. North Queensland Branch. Union of Emplo) ecs (\'o er o/1994) AND Automotive. Metals and Engineering Industrial lJnion of Employees. Queensland and Others r\o C38 of 1994) AND Mount Isa Mines Limited JUSTICE MACKEN/.IE. PRESIDENT 8 May 1995 Appeal_ Decision of!ndustrial Commission - Orders made under s.45_ of Industrial Relations Act I 990 Demarcat10n - AltcratJon of Fliaibilitv Rules _ Error in Law - Full Bench Misdirected Itself as to h • "s • d r·t·rect ()t· 1·ts Powers - s 118 of !ndus1rial Rcla11on1 Ac/ t e . cope an c 1, • • • • . (Commonwealth! Right to Represent - Appeal Allowed - Remitted to the Full Bench with a Dircct1on that it Proceed Accord111g to Law. Jl'DGMENT After a lengthy hearing a 1:ull Bench of the Industrial Commission expressed certain conclusions and made orders upon appltcaUons_ b) The Australian Workers' Union of Lrnployees. Queensland (A\\ l!) and Mt. Isa Mines Limited (Ml:vl) under s. 45 of the lnduslrwl Rela/wns :.Jc/ /990. The effect of the orders was that:- A \VU was given exclusive rights to represent under . the /nduslrial Re/a/ions Ac/ I 990 the industrial interests of all employees of MlM engaged in the copper and nncilead streams (with certain exceptions) AWL "as given the right to represent under the Act the industrial interests of all employees engagcd m the administration, research and development and personnel di, isions and the supply and safety and security departments fhe Automotive. Metals and Engineering Industrial l'.nilm of Employees. Queensland (AMEU) was gi,en the cxclusl\e right to represent under the Act the industnal mtcrests of all employees of MIM in the engineering division (except where exclusive rights had been given to the A \\lJ) and those 1n .th,e copper and zinc/lead streams excepted from the A\\ lJ s exclusiv c right. AME\ 1 was declared not to have the right to represent under, the Act the industrial interests of cmplo) ees in respect of whom the A \Vl! had be.:n given exclusive rights to represent or the right to represent. * A Wl' was declared not to have the right to represent under the Act the industrial interests of employees in respect of \\horn AMEU had been given exclusive rights. A number of unions. some of which are the appellants. \,ere declared not to have rights to represent under the Act the mdustnal 111terests of cmplo 1 ccs of Ml'v1. "lt is clear that MlM's future profitability - and indeed iLs future viabilitv - v,ill depend on how well. and how quickly. ncan achiev~ international competitiveness in its core operations. This task will be difficult in itself and will not be assisted if it is requtred to continue to deal with potentially different union agendas as the tasks confronting it are addressed. The evidence has sho"n .that despite considerable time. effort and investment to achieve fundamental change in its operations. MIM has been restncted m its abilitv to move forward by the requirement to negollale with five uni~ns on virtually every issue which needed to be addressed. Frequently it has been confronted with a different agenda by each uf the unions with vvhich it has had to deal. Whether this has been because each union genuine!) had a different agendum or the agendas were developed to slow or st)mte progress is a mute (sic) point. The simple outcome was that any progress made w~s difficult to achieve. grudgingly conceded and nowhere near ,,hat was required on any reasonable evaluation. We are concerned for the future of Mount Isa if we allow this situation to cont111ue. Public interest considerations dictate that we act to correct it. MlM's core operations (in particular) have. in our vie.w, .been adversely affected by union demarcations. Mult1-sk1ll111g opportunities arc being denied to both employees . and management. Access to contract arrangements are be111g demed to those outside the A WU. Different employees have changed umons to access award or other entitlements available to members of a particular union and not available to others outside :~at membership. Production delays (particularly underground.) occur because a member of a particular union only is permitted to perforn1 a particular job function. Simply tink_ering around. the edges will not achieve the type nor the degree of change required. M;jor surgery is necessaf) if the patient is to survive and recover. Consistent with our view that major surge[) is necessary •. we consider that in detennining the alterations to the rules of the industrial organisations concerned which must flow from the representation Order which we propose to make. the nommated Commissioner should ensure that on and from the day on which the alterations take effect those employees of MIM who cease to be eligible to take out membership in an industrial organisation cease to be members of that industrial organisation. Alterat10ns which are prospective only in their operation will not do. lt is not sufficient to change union representation rules and membership rules in respect of new. incoming employees. Any change. must impact immediately on the existing workforce: There is. no cvidentiarv base for a conclusion that an alterallon which gives existino c~ployees the option of embracing change or maintaining their e:isting allegiance will lead to gradual if grudging acceptance of the Commission's decision in these proceedings. There is eve[) reason to believe that such an alteration will perpetuate the existing problems.". Separate amended grounds of appeal on behalf of the Federated_ Clerks' Union of Australia. North Queensland Branch. Umon of Employees (FCUNQ) mid of the AMElJ. the Electr'.cal Trades Umon of Emplo)ees of Australia. Queensland Branch (E Ilj) and .the Federated Engine Drivers' and Firernens • Association of Australasia. Queensland Branch. l:nion of Employees (FEDFA) were identical 111 substance except that Ground 1 ~as abandoned by FCUNQ. Grounds 2 and 4 \\ere abandoned by both groups of appellants Jn substm1ce ll was argued that the Full Bench had erred in law or m~de orders in excess or want of jurisdiction in the respects set out 111 the tollow111g grounds:- 15054 l DOC 19 May, 1995] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 271 "l. Contrary to s. 45 of the Act by Urdcr 4 it purported to give The Australian Workers· Union of Employees, Queensland exclusive right to represent the industrial interests of employees who \\ere not then eligible to be members of that industrial organisation. 3. Contra[) to s. 45 of the Act incorrectly regarded the making of orders under s. 45( I) as capable in law of leading to alterations to the rules of the aflectcd industrial organisations which alterations would change the membership of those industrial organisations who were by the orders excluded from having the right to represent the industrial interests of particular classes of employees. 4.(A) It misdirected itself b) assuming. incorrectly. that if it made. as it did by Order 10. an Order under s.45(4) of the Act. that pursuant to s.45(5) of the Act. that the nominated Commissioner would have the power to detcm1ine alterations to the Rules of the Appellant Industrial Organisation and the Australian Workers' Union. Union of Employees. Queensland. which alterations would:- (a) affect not merely the eligibility Rules of the A WUQ (in full) but also the Rules of the Appellant Industrial Organisation: and (b) further or alternatively. so affect the eligibility rules of the Appellants Industrial Organisation so as to deny the Appellant Industrial Organisation the right. in the future. to enrol certain persons as members. who but for the alterations would be otherwise eligible. as opposed to denying the Appellant Industrial Organisation the right to industrially represent such persons if they became enrolled: and ( c) further or alternatively. affect the cxistmg rights and entitlements of membership in the Appellant Industrial Organisation including automatically and without more purging certain members of the Appellant Industrial Organisation from membership upon the determination of such alterations taking effect pursuant to s. 45(6) of the Act.". lt was submitted by AMEU. ETU and FEDFA that the power to take away the right of representation pursuant to s. 45(l)(c) was confined to the removal of the right to represent under the Act the industrial interests of persons. It was not concerned with other aspects of the relationship between the t;nion and its members. In particular it was not concerned with the right of persons to remain or become. if otherwise eligible. members of the Union nor with other activities of the Union for the benefit of its members. It was accepted that the relevant orders did not. in fonn. demonstrate any error in that respect. but it was submitted that the third paragraph of the passage quoted above showed that the Full Bench had acted on the assumption that changes could be made to the rules which affected not only the Union's representation rights but also the eligibility and membership rights. It was submitted that the assumption was incorrect and that therefore the Full Bench had material!) misdirected itself as to the scope and effect of its po\\crs. Because there was a fundamental flaw in the Full Bench's reasoning it could not be assumed that the orders would necessarily have been made if the "major surge[)·" the Full Bench saw as necessary could not be la,\full 1 achieved. It was not contested that the eligibility rules of the successtiJI Union could be enlarged under s. 45(5) but it was submitted that it did not necessarily follow that s. 45(5) authorised a change of membership eligibility rules of the Union against whom an order under s. 45( 1)( c) was made. One clement of uncertainty is that the nominated Commissioner has not determined what alterations of rules arc "necessaf)·" to reflect the order of the Full Bench. Those proceedings were adjourned pending the determination of the appeal on tJ1c assumption that some guidance as to the extent of the power to alter the rules may result from this appeal. The major line of attack upon the Full Bench's decision related to the reliance on the existence of authority to order that the membership of persons whose industrial interests the Union seeks to have the right to represent under the Act should be removed from membership. Stripped to its essentials the argument was that had the Full Bench not acted on the basis that it had this power it may not have made the orders as to rights of representation made in its orders. In other words if it had not been under a misapprehension that its powers extended to the making of such an order it may not have decided to strip certain unions of their rights to represent members' industrial interests. Section 45 creates a legal structure of powers under which: (a) Rights to represent under the Act the industrial interests of a class or group of employees who are eligible for membership of the organisation can be granted exclusively to a union. 'Ibis presupposes that exclusivity has been granted in respect of employees who are eligible for membership of the organisation. (b) Rights to represent under the Act the industrial interests of a class or group of employees is to be conferred on a union. This presupposes that prior to the order. the organisation docs not have that right. ( c) A union is denied the right to represent under the Act the industrial interests of a class or group of employees who are at the time of the order eligible for membership of the Union. Unless the Full Bench is satisfied that the rules of the industrial organisations concerned do not need to be altered a nominated Commissioner is obliged to detern1ine such alterations. if any. of rules of any industrial organisation as are necessary to reflect the order of the Full Bench. 'Ibe section refers to "any industrial organisations concerned". While that is in no way decisive it does not suggest that there is any neccssaf) restriction on the power of the nominated Commissioner to adjust rules of an industrial organisation by contracting the scope of its eligibility rules as well as by expanding it. I lowcver. the exercise of any discretionaf)· power must be confined to the scope and purpose of the Act and it is therefore necessary to analyse the Act and certain decisions under the corresponding provision (s. l I 8A) in the Jndus1ria/ Relations Act (Commonwealth) to gain guidance as to the way in which the provision is intended to operate. There is authority for the proposition tliat it is proper to interpret the intent of the formal orders by reference to the reasons expressed in the decision (AWC v. FE!JFA) (1993) 46 IR 66 (the Comalco Case): HSL v. SPFA (Williams DP 9 February 1993 ). The focal point of the argument in respect of the scope of s.45 is differing views which have been expressed on the subject. S.45 is concerned witl1 authorising and denying the power to represent under the Industrial Relations Act I 99() the industrial interests of persons. In AAP.\4A v. /VWF 51 IR 59. 93 the following was said:- "I listorically representational rights of registered organisations have been detern1ined by reference to the eligibility rules . The precise limits of the legal efkct of a representational order under s. l I 8A have not. as far as we are aware. been considered by a Court or this Commission and. in particular. the meaning of the expression 'to represent under this Act' has not been determined. At least (and probably more generally) in proceedings which arc contested and where the organisations which are the proposed 15054 I.DOC -- 1 of 3 -- 272 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [19May,1995 beneficiaries of the order have no existing representational role of substance in contested areas, an order should, as with eligibility rnles, identify as clearly as possible the class in respect of which representational rights arc being granted to the hcneficianes _and removed from other organisations having regard to the effect <>enerallv of such an order. While eligibility rnlcs may he altered :ndc:r s.-1 I SA( 6) as a consequence of an order being made under s. l l 8A. that fact docs not mean it is unnecessary to ensure the order itself is clear.". In Re F'v!WC'/1992) 40 IR 407 (the Flagstaff case) \\'illiams DP said the following:- ... s. l l SA is concerned primaril) with the question of exclusive representation of industrial interests under the Act not \\ ith the rights of organisations of employers to enrol members. Both_ the right to enrol and the right to represent ansc m1t1aDy from registration under the Act. But the fact that the Conurnss1011, 111 certain circumstances, comes to a conclusion that the nght of a particular organisation to represent employees it is by virtue of its registration entitled to represent should m some way or Wsome extent he curtailed docs not mean that the Comm1ss1on \\Ill automaticallv conclude that the organisation should be pre\ ented from being ;ble to enrol or to have such employees as members even though it is unable to provide them \\ ith representation under the Act. The power to adjust an organisation's right to membership coverage as distinct from the power to adjust that organisation's capacity to represent the industrial interests of that membership is, in mv view, only to be exercised as supplementary to and for the purp;sc of supporting the efficacy of orders made under s. l l SA( I) relating to representational rights.". In HRL4 v. Sf'SF (1992) 41 !R 184 (]96_197) the following was said by a Full Bench:- whilst s. l I 8A might he primaril:, concerned \\ith the representative rights of unions in the federal_ system of industrial relations and not with the rights of orgamsatlons of employees to enrol members, any order or orders made under s. l l 8A( I) in these matters will of nccessit:, have consequential effects on the memberships of the unions invoh ed We wi!L in due course and after hearing forther submissions, make orders under s. I I 8A( I) and such orders will provide, in most case,, for mutually exclusive representation at the various institutions.". Jn ,IJV( v. FEDF.1 (1993) 46 IR 66 (the Comalco case) Williams DI' said the fol lo,, ing:- "It is noL in m, vie,,, correct to state that s. i l 8A is concerned on!:, with the right ~o represent. That may well be the primar:, concern of s. l l 8A and is indeed the only concern of s. l ! 8A( I). Section 118A in ib present forn1 was introduced into the Act as part of an inter-related package of legislative and administrntive measures intended to reforn1 the national industrial rclat1ons svstem 111 ways which ,,ould meet what was perceived to be the ;eed for a more rational union strncture along broad industry lines. It is important. therefore, to remember that the pm\crs conferred on the Cornmiss1on to alter the rcpresentati\ c right,; of unions ,,ere conferred in the context of a number of amendments to the provisions of the Act relating to size. number and industrial coverage, ie the whole thrnst of the amendments to the leg1s!al!on v,as to bring about a more rational union strncture. To understand therefore the role of s.l 18A(6) in the general scheme of the Act s. l ! SA must be read as a whole and in conJLmction with the rest of the Act. Traditionally, a registc:rcd orn~nisation gained its membership and representative rights from th; fact of registration under the Act. The introduction of s.1 l 8A- type provisions howner changed that position and empowered the Commission, in appropriate circumstances. not only to adjust those representative rights but also to adjust those membership rights without recourse to the often cumbersome and tm1e consurrnng procedures involved in applications for consent in eligibilit:, mlcs When viewed in this light, it would be \,rnng, in my view, to interpret the role of a DPM under s. I l 8A(6) as being concerned not with eligibility rnles but with rnles that relate somehm, to the representative rights of an organisation. Section . I I SA( I) empowers the Commission to deal \\ith those represcntal!ve nghts. Section I !8A(6) empowers the Commission to supplement a s. ! l 8A( l) order by adjusting the membership entitlements of the organisations concerned.". An interpretation of the corresponding federal provision supporting the respondents' argument can be seen in the passages quoted. However. the appellants rely on a decision of Keely J. in Copeland v Ludwig (unreported 22 November 1994) in which a significantly more restricted view was expressed as to the scope of the relevant federal provision. The view is clearly expressed in the following passagc:- "In my opinion s. l I SA( I) does not confer upon a Full Bench or a Presidential Member of the Commission the power to take awa} the right of an organisation to enrol members. Sub-section (5) imposed a duty on the Commission to 'refer the matter to a designated !'residential Member unless the Commission is satisfied that the rnlcs of the organisations concerned do not need to he altered' and sub-section (6) imposed certain duties upon the designated !'residential \1cmbcr. In my opinion s.I 18A(6) docs not confer upon a designated Presidential Member the power to determine an alteration to the eligibility rule of an organisation which n;moves that organisation's right to enrol as members employees of a particular class or group. The Full Bench or Presidential Member docs not have that power under s. I J8A( I) and, upon the matter being referred under s. l l 8A(5 ). the designated Presidential Member's pov,er under s. l l 8A( 6 J is limited to detennining 'such alterations ( if an:,) of the rules of any organisation concerned as arc, in the Presidential Member's opinion ncccssar, to reflect the Commission's order' (emphasis added) In my opinion. \\here the Commission under s. l I SA( I )(c) orders 'that an organisation of employees is not to have the nght to represent under this [Commonwealth] Act the industrial interests of a particular class or group of emplo, ees who arc chg1ble for membership of the organisation' it can not be said to be 'necessary to reflect the Commission's order' (s.l I8A(6JJ for the designated Presidential Member to determine an alteration to the organisation's eligibility rule which removes that mganisation's right to enrol those employees - as distinct from remm mg any rule that gives it the power to represent the industrial interests of those employees under the Commonwealth Act. In reaching that conclusion I have not overlooked the fact that s.204(8)(a) of the Act provides as follows: '!his section does not apply to a change in the name. or an alteration of the eligibility rnles. of an orga111sation that 1s: (a) determined by a designated Presidential Member under subsection I !8A(6) or 208(6); .. .' 15054 !.DOC 19 May, 1995J QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 273 However although s.l !8A(6), read in the light ofs.204(8)(a), does confer a power on the designated !'residential Member to determine 'an alteration to the eligibility rnles' of an organisation, in my opinion that power is limited to altering the eligibility rule so as to permit an organisation to enrol as members persons who would not otherwise be eligible for membership; it does not confer the power to remove an organisation's right to enrol employees.". (Section 345(2)(b) of the Queensland Act corresponds to s.204(8)(a)). After referring to .l\'WV v. WWF, (1990) 44 JR 79 which senior counsel before Keely J. accepted was "neutral" on the point Keely J. referred to BWIU v. ATA!U & BWIU Amalgamated Union (Williams DP 30 June 1992) in which, applying the principle he had stated in the Flagstaff Case, Williams DP made a finding that the eligibility rnles of certain unions needed to be altered to reflect the compatibility of the orders proposed with their eligibility rnles. Keely J. said:- ... ,hat decision appears to suggest that the Commission, in the course of determining an application under s. l l 8A(l ), is to consider whether the eligibility rnle of an organisation should be altered in such a way as to remove an organisation's pre-existing right to enrol persons. I am unable, with respect, to agree that that is the correct constrnction of the sub-section. As I have said, in my opinions. l l SA(l) does not empower the Commission to make any orders in respect of a right to enrol persons as members; the powers conferred are confined to making orders as to that organisation's right to represent under the Commonwealth Act, the particular class of employees. The right to enrol persons is a different right. An organisation which, by reason of an order under s. l l SA( I), is excluded from exercising the right to represent a particular class of members under the Commonwealth Act is not thereby deprived of its right to represent them for other purposes e.g. before State courts or State or Commonwealth tribunals or in negotiations with employers.". A choice has to be made between the two approaches. It may be observed that the use of this kind of provision has given rise to discontent in some instances. However that is not so much a legal issue as a political or industrial one. None of the grounds argued challenges the conclusions of fact reached by the Full Bench. 'Jhe challenge is based on the extent of the jurisdiction, if any, of the nominated Commissioner to alter the eligibilit) rnlcs of the applicants to reflect the orders made by the Full Bench. The primary limitation is that the alteration is "necessar:," to reflect the decision of the Full Bench. As the cases where the power to limit eligibility rnles has been applied or assumed, the limitation inherent in the word "necessary" requires a cautious approach to be taken to reducing eligibility rnlcs in breadth. This is particularly so where the parties like! y to be affected have demonstrated that there is an eflective way of preventing the kind of difficulties that give rise to the application in the first place. The more fundamental limitation contended for, that the power in s.45 does not extend to removing eligibility rights in appropriate circumstances, cannot in my view be established. It is an unduly restricted view to take of the words used and the intention of the Act to say that in no case can eligibility rnles be curtailed if the situation in the particular case appears to warrant that action. The cases suggest that where the exercise of power is under consideration it should he used circumspectly but the power to do it and the wisdom of doing so in a particular case are different concepts. As previously said there is no challenge to the factual findings of the Full Bench. The challenge is to the way in which the full Bench came to the conclusion that the radical solution involving alteration of the rules was necessary. For reasons I have given no complaint could he sustained about a rnle alteration removing the right to enrol members employed by MIM if that were what the nominated Commiss10ner decided was necessary to reflect the Full Bench's decision. However, the passage from the decision set out above shows that the Full Bench intended that consideration be given to a more extensive mle change, to the extent of providing for the purging from membership of the appellants, persons who are currently members and employed by MIM. As was pointed out at the hearing, existing membership may have resulted in a member acquiring vested rights of various kinds in consequence of membership and a purge of such members may have harsh consequences and implications in respect of natural justice. It was submitted by the appellants that it was beyond the scope of the Act to make an alteration of a rnle which would have this effect. The respondents conceded that no case had gone as far as that. Nor does there appear to be any case in which that possibility has been considered. Section 45( 1) is concerned with the right to represent under the Act the industrial interests of a particular cla,s or group of employees, either by conferring or removing that right. On the view I take, if changes to the rnles are considered necessary to reflect a decision to affect rights of representation, it is within power to make a rn!e alteration to restrict eligibility to enrol in the future provided that the making and content of such rnle does not go beyond what is necessary to reflect the Full Bench's decision. However the power does not extend to making a rnle of the kind envisaged by the Full Bench that has the effect of affecting the rights of individuals who are already members. The passage quoted above from the Full Bench decision shows that it believed that the power under s.45 extended to the making of alterations to rnles which could achieve that result. The question then is whether such misapprehension has affected the decision in such a way that the Full Bench should be required to reconsider its orders. The formal orders simply give the right to some industrial organisations and remove the right from others and the task of the nominated Commissioner is simply to determine what alterations to mles are nccessar:,· to reflect the decision. However, the reasons of the Full Bench state explicitly that the nominated Commissioner should ensure that from the date of the rnlc alterations, present members should cease to be members. The nominated Commissioner, if he acted in accordance with that intimation would be perpetuating the misapprehension as to the scope of the power upon which the decision was based. If the Full Bench's decision was allowed to stand notwithstanding the error, this decision would remove that misapprehension from the mind of the nominated Commissioner and no doubt any rnle change would then not proceed on the basis that such power existed. The more difficult question is whether in view of the findings of fact which arc not challenged by any of the grounds argued, the Full Bench would have reached any different decision on the formal orders if it had acted on the principle that the power to make rnle changes did not extend to removing persons with current membership employed by MIM from membership. The consideration of the orders has proceeded on an erroneous view of the extent of the power. It was submitted by the appellants that if the Full Bench could not achieve the "drastic solution" it wished to achieve by removing certain industrial organisations from any presence at MIM it may have come to a different conclusion had it not acted on a misapprehension a, to the extent of the power in s.45. It is apparent that the Full Bench held a strong view as to what was necessary, based on its view of s.45. The respondent submitted that given the findings of fact it was inevitable that orders would have been made in the same form if the Full Bench had proceeded on the correct and more limited view of the scope in s.45. I have come to the conclusion that having regard to the nature of the error and the emphasis given to the erroneous view of the extent of powers in the reasons, the matter should be remitted to the Full Bench to further consider what orders should be made applying its mind 15054_1.DOC -- 2 of 3 -- 274 QUEENSLAND GOV ER MENT INDUSTRIAL GAZETTE 119 May, 1995 ",thin the confines of the more limited \cop<! of s.45 than that ,1ued upon 111 the ongmal dec1~1on . n do uht I r that 1s done fu rther rea~ons will explain the basis for the orders made, as was the ca~c 111 the original proceedings. I here i~ no reru.on m , te" of I.he lad.. of challenge of findings ot fact for the Full n ench to reopen t,~ues of tact unless the Full Rench consider., that it should do ,o. 1 he underl}ing assumption of the order- to be pronounced in lhcsc proceedings 1~ that in the absence of any reason wluch seem~ persua~ive to th e Fu ll Bench the consideration of orders that should be made will proceed on the hasis of findin gs o f fact alread) made "1thout the need to reopen t'iSucs which were, should have been or might have been argued fully d11ring I.he Jeng.thy hearing befon! the Full Bench One other matter argued was that by Ord~r 4 the Full l knch purported to gi,e the l\Wl. an e,clusi,e nght to repre,.:nt undcr thc Act the mdustrml interests of persons \\h o were not the n eligible to he members of it. The argument is based 011 the proposition that ccrtain cm plo)CCS of \IIM "ere not at the ume of the order eligible for membership of the AW U. TI1c submission relied on R. v. Mad .1 . ex parte AC'B£ & BLFt l982) 153 CLR 402 and R v Coldham: ex parte A ll'lt ( 1982) I53 CLR 415 as authorit) for the proposition that 11 \\,IS a j uri sdictional fac1 that persons m respect o f whom an order was lllade must be. as opposed to be in the: opini on of the Full Bench. eligible for membership. I -.as told that this point \\ as not taken before the l·ull Benet, despite 1h e asse rti on having been made at an ear ly stage 1h at the: AWU had eh 1?1bi lit) to enrol all relc ,ant worl,.er~ under its c~bting rules. '>: onethcless it \\.l$ subn11tted that as it "~ fundamcntJI to jurisdiction the: point could now be taken not withstandin g. the failure to raise it he low. In any event. so far as the A Wl J is concerned - Hnd Ground I relates ool) to the A\\ \ ! - th e point is untenable. The respondents submit thm on the authority of R ,• .1-/oorr ex pane F\fll'(I ( 19 78) 14 0 Cl.R 470. supplemented b) dicta in 1-'eder(//ed /,iq 11 or & Allied /111111:;tnes U11 io11 of Australia: e,\ f1(1r1e ,J IJ'l.' ( 19 76) 5 1 ALJR 266 (The Poon Brothers ca<e) and R ,. Coldltam: ex r,arte A 111 ( 1982) 15 3 (. I.R 4 1S the A \\' Vs cli1?11liht) rule took in al l emp loyees o J' MIM ~111 the Mt l ~a lc,L,c . Whi le not conced111g that Ruic 16 l6(i) h.b that effect Mr , \mercna's argumen1 was really directed 10 what he suhmittcd \\ 3S the c:-cl usion of tradesmen by virtue of Rule I 6. I 6(iv). Mr Herbert rclcrrcd 111 the histol) of the rule and submi tt ed that 11 "a., not concenu..-d "i th employees on the lease but rather wi1h :in cxten~ion of co, erngc to persons at tenninals. storage areas and di~tribu1ion area, remote fr0111 IL I la, ing regard to the histol) of the rule. I am sati, fkd tha1 thi, i5 the proper construction I am thcn:forc 'IJtis fi ed that thi• ground i, not made out. I order thu1 the appeal be a ll owed. I order that the ma11 er be remitted to the full Bench with a dtrccuon that II proccetl according to la\\ by ginng tunher cons1dern11on 10 the orders that should be made having regard to the scope of s.45 dctem1ined in this deci~io n. I Jated this eighth day o f Ma) . 1995. K.G \\ . '.\IACKl-:SZIE. Pre,,idcn1 Appearances - Mr C' . Ca ll aghan ( 1n stn1 ctcd hy Nall Pa y ne Crnswc ll ) fo r Fcdaated Clerks' l'nion of Au,.1ralia. :-lonh Queensland Branch. Union o f EmplO)CCS . Mr '1.1 Amercna. " ith him Mr . Do)lc (instructed by 'all l'a)nc Cras" c ll ) for Automotive. Metals and l:ngmccring Ind ustrial Umon of f.rnployces. Queensland. for The rlectr ical Trades Union of Employe ..: ~ of Austraha. Queensland Branch and federated Engme Ori,crs· and Fircmens· Assoc ia11 on of Austral asia Queensland Branch. l ' 11 1011 of Ernpl oyces. Mr A. I lerben (mstructcd by Me,,rs CA . Sciacc.i and Ai-.wciate,) fo r Ille Au,tralian \\ orkers· t fni on o f Emplo)ces. Queensland l\ lr J £· Murdoch ( 111structcd b) I lopgood and Ganim) fo r Mount l~a l\llncs Opcrau,e Date· /A Judgmcnt - l'C\J A D AMEU anti Other~ AND t- ll M Rclea.<.cd · 8 1 a) 1995 /l#/l##ll####/t/1#11##/1/l#ll#/l####HIIH###/l/l#ll### /lll# /l /l/lll###llll#/l#-/I 19 M ay. 1995] Q UEENSLAN D G OVER ME T INDUST RIAL GAZETTE 275 -- 3 of 3 --