Australian Liquor. Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees and Others v The Australian Workers' Union of Employees, Queensland and Daikyo Enterprises [1994] ICQ 38 (1995) 148 QGIG 123

122 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [13 January, 1995 13 January, 1995 ) QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 123 ####################################################### QUEENSLAND INDUSTRIAL COURT Industrial Relations Ac1 1990 s. 118(2) - appeal from decision of industrial commission Australian Liquor. Hospi1ali1y and Mi scellaneous Workers Union, Queensland Branch, Un ion of Employees and Otliers AND The Austral ian Workers' Union of Employees, Queensland and Daikyo Enterprises (No C47 of /993) JUSTICE MACKENZIE. PRESIDENT 21 December 1994 Appeal - Decision of Industrial Commission - Certified Agreemen t - Jurisdictional Requirements - Amended Clause I.4 - Industrial Organisation Coverage - Dormancy - Appeal Dismissed. J UDG MENT ll1is is an appeal against the decision of an Industrial Commissioner to certify an agreement entitled the Daikyo Ente rprises Certified Agreement made between various enti ties in the Daikyo group and The Australian Workers' Union of Employees. Queensland (the A WU). On 6 April 1994, a decision on the preliminary issue of standing was de livered and as a result of that decision an amended notice of appeal was filed in respect of the grounds now pursued. Ground 2.1 is that the Industrial Commissioner ened in law and exceeded j urisdiction (in a case where s. I I 2(1 )(e)(i)(A) (as it then stood) was not complied with) when he wrongly directed himself that he could under s. 1 14 (as it then stood) accept undertakings and amendments and exercise his discretion in favour of certification. Grounds 2.4 and 2.5 arc related to this same point and were not separately argued by Mr Jerra rd. They respectively allege an error of law or excess of jurisdiction because the Industrial Commissioner had not satisfied himself that each industrial organisation of employees that was a party to an award that bound an employer in respect of work carried on in tl1e business was a party to the agn:ement and that therefore he could not be satisfied that undertakings given and amendments made (including an amendment to cl. 1.4) could satisfy the requiremenls of s. 112( I )(e) (as i.t then s 1oo d). The starting point of the argument was the Industrial Commissioner's finding that s. I 12(1)(e)(i)(A) (as it then stood) had no t been complied with because there were awards 10 which tl1e appellant Unions were a party which bound one or more of the employer companies in respect of the work in the business. TI1e submission on behalf of the appellants was that the requirement 1h at the Commission be satisfied affirmatively that all industrial organisations were parties, was a condition precedent to the formation of a certifiable agreemenL It was submiued that the legislature had placed great weight upon correct identification of industrial organisations entitled "to be given the opportun ity to be parties to certified agreements" and to be included as parties if they wished. It was submitted that tlie requirement tliat a certified agreement include relevant industrial organisations as parties was so fundamental as to go to j urisdiction. The wide discretion to accept an undertaking if it met the Commission's concerns was recognised but it was subm itted that the discretion could only be exercised where the un dertaking given or any amendments made:- (i) met the jurisdictional requirements by adding the excluded industrial organisations as parties; or, in the alternative (ii) had the effect of meeting the jurisdictional requirements by placing the exc luded organisations in the same position as they would have been had they been parties; and (iii) were for the benefit of the excluded organisations. Mr Jerrard submitted that the undertakings actually given in tl1e present case would on the evidence adversely ellect the excluded industrial organisa tions. He submitted that the undertaking was in effect a promise that the A WU would attempt to poach coverage of employees in the relevant businesses. He submitted that had the appellants been parties to the agreement they would have been obl iged to:- (a) take reasonable steps to consult with and in form their members of the tcnns of the agreeme nt and the intention to apply for certification; (b) inform the Commission of the fact of consultation and as to its outcome. The exclusion of the appellants as parties denied the Commission the infom1ation lhat the appellants would have been able to provide and the Commission had thereby been de ri ved of a critical part of the process envisaged in certifying agreement~. lhe course of the proceedings before the Commissioner is set out in the previous judgment (( 1994) 145 QGIG 807). Where the exercise of a discretion is challenged it is impossi ble to consider the issue in the abstract. The circumstances prevailing at the time when the discretion was exercised must inevitably be taken into account. Mr Herbert for the AWU and Mr Camp for the employers subm itted that the Commissioner was entitled to exercise a d iscretion as to whether he accepted undertakings as to the operation of the agreement in cases where he was not satisfied of compliance wi th s. 112 (as it then stood). It was submitted that the Commissioner had exercised that d iscretion on proper principles and that no error of law on hi s part had been demonstrated. Mr Herbert also subm itted tliat not only did the amendments made to c l. 1.4 of the agreement supported by the undertakings of the parties meet the concerns of the Commissioner but actually brought the agreement into compliance with s. 112(1)(e)(i)(A) (as it then stood) despite the apparent finding by the Commissioner to the contrary. He submitted that cl. 1.4 ensured that the agreement covered o nly that part of the single business (ie. those employees and c.allings) regulated by the awards in Appendix A. He also subm itted that after the amendment to d. 1.4 the parties to the agreement included the only industrial organisation of employees that was a parry to an award tliat bound the employer in respect o f that part of the single business. 13646 I. DOC -- 1 of 2 -- 124 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [ 13 January, 1995 Jn terms of immediate operation. that is correc t. However, it was necessary to have regard not on ly to th e immediate operation but a lso to it s potential operation. Taken as a whole. it was capable of expanding its scope by including as the part of the single business covered. employees and callings covered by other industrial organisations which were presently parties to awards binding the emp loyer in respect of that component of the single business into \\i1ich A WU coverage wou ld ex pand when the dormant provisions came into effect. Accordingly. the Commissioner was correct in his fi nding. Ground 2.2 was a ground upon which no fin al decision as to stand ing was made in the previous decision. In those proceedings it was suggested that a clerical error had caused the discrepancy upon which this ground was based. It was left on the ba~is that if the parties could not resolve the issue prior to the present hearing I would hear further argument on standing as it might depend upon establishing that some prejudice or disadvantage might occur to one or more of the appellants if the fa cts were as alleged. It was conceded in the previous proceed ings that this ground had not been raised before the Commissione r. The complaint essen tially is that the lndusu'ial Commissioner d id not adequately address the ques ti on whether all entities named in cl. l .4 of the agreement as certified were employers and. if not, whether they should be parties. It was submitted that it was essential that the. agreement sought to be certified, identify or be accompanied by documents or evidence id entifying those who were emp loyers and therefore e ntitled to be parties to it. It was submined that in dustrial organisations such as the appellants have a legitimate in terest in the correct identification of employer parties to agreements wh ich make reference to awards to which those industrial organ isa ti ons arc parties. Mr Jcrrard referred me lo ex.A to Mr Rei dy's affidavit o f 17 Febrnary 1994 to il lustrate his complain t. When the Industrial Commiss io ner de livered his fi rst se t of reasons with respect to ce1t ifi cation on 29 October 1993, he set out a clause which referred to :- "Daikyo (No 1th Queensland) Pty Ltd and their employees .. who arc emp loyed in Qr in connection with the business carried on hy th e fi )llowing: --". A list o f enti ties identica l. except fo r ty pographical errors to the li st which appears in the agn::ement as certified (except that in that li ~t Daikyo (North Queensland ) Pty Ltd is grouped with them rather tJ1an appearing separately in the preceding part o f the clause) is then recited. Mr Jemird told rnc in oral su bmissions that the cl. 1.4 as certified (p.F.6 of ex.A) was the original <lra l'l which was replaced by the drnfl at p. E7 <luring the course of proceedings before the Industrial Commissioner. However. that does not appear on the face of the documents to be co rrec t. The reverse appears to be the case because p.E7 shows that it was part of the o riginal agreement filed on 11 October 1993. Page E6 bears the date 8 November 1993, which \\as the date of t he resumed cc rt i fication hearing when according to the transcript a new draft cl. 1.4 was prov ide.d to the Industrial Commissioner by the representative of the A WU. ·111e Industrial Commissioner noted the changes and asked the representatives of th e SUA and the FMWU if the changes met with their ap proval. Counse l fo r the SUA accepted the amended clause and the representative of the appellants said th at ii reflected the content so ugh t. The FCU was separately represented but. according to the transcript, its representative did not say anything at the hearing. Fu11J1er. the Commissioner had <1ffidavit c,-idence before him w hi ch was not challenged in an y way or so ught to be clarified by th e appellants that a ll named entities in the draft cl. 1.4 operated as a common enterprise. Given this state of affairs it is difficult to sust ai n 1.he argumen t that the Industrial Commissioner should have done more than he did and in the circumstances the ground lacks substance. Ground 2.3 proceeds on lhc basis that the Industrial Commissioner d id not have jurisdiction to certify the agreement because it did not relate to an "industrial mauer". The starting point of the argument was that the agreemen t as certi tied described various s1rearns of employment through which it was proposed that employees would rotate. Certain of those streams would answer the description of persons employed under awards li sted in Appendix B lo which 1.he various appellants were parties and to which awards tJ1e respondents had declared tJiat the agreement would not apply. It was submiued that the ex pedient of declaring tJ1at the agreement d id not apply to awards or agreements in Appendix B and of oJlcring undertakin gs and amendments with the effect that the agreement only app li ed to employers bound by awards covered by the A WU co uld not be used to evade tl1c requirement that industrial organisations of employees that were a party to an award which bound an employer in respect o f work ca rr ied ou t in the business must be a party to the agreement. It was subm itted that an unde1taking that the certified agreement did not ap pl y lo those streams of employment which were covered by awards to which the appellants were parties unless and until the A WU obtained coverage was not an agreement "about an industrial mailer" (s. 110) (as it then stood) as defined i ns. 6 (as it t hen stood). It was submitted firstly that the agreement did not aOect or relate to any oftl1e matters described ins. 6( 1)(a)-(c) (as it then stood ). It was subm itted secondly that if any did apply it wou ld only bes . 6(1 )(b) (as it then stood). It was submitted that if tl1e agreement <l id not relate to the privileges, ri ghts or duties of emp loyers or employees or of persons who ha ve been or propose to be or who may become emp loyers or emp loyees. the provisions relating 10 the "donnant" class ifi cat ions shou ld be excised as irrelevan t or should be declared to render the whole:: agreement a nullity. I am sat isfied l11a1 notwitJ1standing Mr Jemll'd's argument ahout the defin ition of "i ndustrial matter" the agreement falls within the description in s. 110. It cannot in my view be said that an agreement that in the event a particu lar union ga ins coverage of particular call ings. the agreement wi ll ex tend to them does not affect the pr ivileges, rights or du ties of emp loyers or employees or of persons who may become emp loyers or emp loyees. It was submitted that l11e appellants as industria l organ isutions of emp loyees with present coverage suffer a disadvantage by the inclusion o f the "donnant'' cla,sifications in Lhc agreement because of the AWU's avowed intention to seek coverage of them . The appellants' apprehension is that th ey will suffer a disadv,mtage which they wou ld not have otl1crwisc have had iftJ1e AWU is ab le to point to its position und er the agreement during the process of seeking coverage (see . s.45 - fon nerly s.44). If the cla,s ifications had been included immed iate ly and not merely potentially in the agreement they would have been entitled to be a party to the agreement. It was su bmitted that if there was power to accept the undenak.ings and amendments w ith respect to the dom1ant classifications the decision lacked the evenhandedness Lhat shoul d be displayed in accep ting undertakings under s . 11 4 (as it tJ1e11 stood}. Section I 14 (as it then stood) confers upon tJ1c Commission wide powers with respect to accepting undertakings from the parties in relation to tl1e operation of l11e agreement, and to certify the agreement i r it is satisfied that the undertaking meet., its concerns. By its own wording s. 114 (as it th en stood) rerers to s. 112 (as it tl1en stood) without di sc riminating between its pans. The first question is whether tJ1e re is any legal barrier to accepting an undertaking of the k.ind ollered. If not, the second question is whether the Industrial Comm issioner has exercised his discretion in a way that contrave nes proper pr inciples. In his dec ision de livered on 29 October 1993. he noted that several individ ual classifications in the classifications structure in the certified agreement had their origin in awards in Appendix B. He went on to 13646_ I .DOC 13 January, 1995) QU EENSLAND GOVERNMENT INDUSTRIAL GAZETTE 125 say that the AWU had stated that such classifications were LO remain dormant until proceedings under the former s. 44, to be instituted in the future, h ad been delcnnined. One classification was removed at l11e instance o f t he SUA but no such arrangement was made with the appellants. The parties to the certified agreement gave an undertaking that the classifications would remai n donnant unless proceedings under s. 44 resulted in a favourable dec is ion for the AWU. The Industrial Commissioner fonnulatcd the question to be answered by him as whethe r the inclusion of the classifications drawn from awards ob tained in Append ix B provided sufficient reason to refuse to cettify tJ1c memorandum of agreement. He sa id he was satisfied tliat the in tention of s. 114( I)(a) and (b) (as they then stood) had been fulfilled and that there was recourse available to the organisations concerned in s. I 14(2) (as it then stood) if tJ1e undertakings given were not met. He indicated h is intention to ce rt ify the agreement. When the hearing was resumed on 8 November, and the decision was taken on 10 November 1993 to certify the agreement, the Industria l Commissioner had further submissions to consider. He noted that, given the restrictions imported in to the agreement, it would apply immediately only to the callings nominated in the awards as listed in Appendi x A and that the AWU was the only industrial organisation of employees which was a respondent LO the awards and/or call ings referred to in it. He then went on to say that because Ilic SUA concerns had been met by excluding boating attendants/deckhands from the coverage of the agreement through amendments made the SlJA had "no standing in the proposed agreement". He tl1en noted tJ1at the FMWU and the FCU were en titled to enrol as members only l11ose employees of Daikyo who ca me within the callings conta ined in its constitution and specified in certain awards in Append ix B. He then observed that because tl1 e awards and callings in Appendix B had been excluded from coverage of the memorandum of agreement through the dormancy provision. ne it her the FMWU nor the FCU had "stand in g in the propose<l agreement" un less and un ti l the undertakings as to the dom1ancy of the callings were not adhered to. He pointed out that recourse was available in such a case under s. 114(2) (as it then s tood) of the Ac t. Mr Jerrard drew attenti on lo the use of the word "standing" in the passages to which I have referred and submitted that the lndusu-ial Commissioner had misdirected himsel f. In the way in which I read the dec ision, the Commissioner was say ing that because of the way in "h ich the limits of coverage had heen drawn , the FMWU and the i:cu \\OUld on ly be affected in the event th~t th e undertakings as to donnancy were broken or A WU coverage was extended. I do not read what he has said as suggesting that in some way the unions did no t have standing at al l. That would be contrary to the. participat ion which they were allowed IQexercise at the hearings. l11e issue to be de tenn ined is whether ii is a proper exercise of discretion under s. 1 14 (as it tl1en stood) lo accept an undertaking which has the practical eflect of allowing the operation of the agreement to be expanded into call ings not presently covered by an industrial organisation if it, at some future time. obtains coverage. The argument for the appellants eventually is that, had an application to certify an agreement having immediate effect upon those callings been made at a time when the appellants had coverage. s I 12(1Xe) (as it th en stood) wo ul d not have been compl ied wi th on the facts of the case. It is argued that the pre,ent agreement seeks to achieve the resu lt of applying the agreement in the fu ture. if co,·erage is granted, to the exclusion of i nd ustrial organi sa tions who presently have coverage. As a general proposition. care must be taken to ens ure that parties do not use a ci rcuitous dev ice to achieve in the future what cannot be immediately achieved. In some circumstances, it may be a wrong ap pl ication of principle to include provisions wh ich have that effect in a certified agreement especially if t he balance is unfairly ti lted in favour of or aga inst particu lar interested perso ns. In tl1e present case. the strncturc o f the agreement is that Appendix B exc ludes certain awards from the operation oftl1c agreement, but a number of ind ividua l classifications wh ich have their origins in one or another of the awards arc contained in the classification structure in th e award. The respondents argue that having regard to the way the Commission would approach the issues in volved in the proceedings under s. 44, l11at would prov id e a suitable vehic.le fo r arguing the merits of an extension of coverage by the A WU. It is true that a wide range of matters have to be taken into account io s uch proceedings. and that, because a range of issues must be discussed, the focus of such proceedings is. at least in theory, not necessarily let a lone exclusively on the issue in the present proceedings. However, it would be losing sight of reality to tJ1 ink that in practical terms any application which effectively sought to remove an award or elements of it from Schedule B would not focus upon that issue as well as the others. In the circumstances. I am satisfied l11at it was open to the Commissioner to exercise the discretion to accept the undertaking offered under s. 11 4 (a., it then stood). No basis has been demonstrated for fi ndi ng that it was exercised in circumstances which render it liable to be overtumed. The appeal is d ism issed. Dated this twenty- first day of December, 1994. K.G.W. MA CKENZIE, President. Appearances:- Mr J.A. Jerrard, with him Ms E. Beal, (instructed by Reidy & Tonkin) for Austral ian Liquor, Hospitali ty and Miscellane ous Workers Union, Queensland Branch, Union of Employees; Federated Clerks' Union of Australia, North Queensland Branch , Union of Employees; and 171e Seamen' s Union of Au~tralasia, Queensland Branch. Union of Employee,. Appe llant-. Mr A. Herbert (instructed by C.A. Sciacca & Associates) for 171e Australian Workers ' Union of Employees, Queensland. Mr A.F. Camp. with him Sir S. Sc hu bert and Mr M. Salinos on behalr of Daikyo (North Queensland) Pty Ltd and Subsidiary Companies. Operative Date: N/A .l udgment - ALHMWU and Others and A WU and Daikyo Enterprises Re leased: 2 I December 1994 #########11##11########################################## 13646_1. DOC -- 2 of 2 --