Australian Services Industrial Union of Employees (Queensland Local Government. Energy, Ports, Information Technology, Social and Community Services Branch) and Australian Social Welfare Union of Employees (Qld) v Department of Employment, Vocational Education, Training and Industrial Relations [1994] ICQ 25 (1994) 146 QGIG 244

244 QUEENSLAND GOVERNMENT LNDUSTR I AL GAZETTE 19 September, 1994 ####################################################### QUEENSLAND INDUSTRIAL. COURT Industrial Relations Act I 990 s. 118(2) - appeal from decision of industrial commission Austral ian Services Industrial Union of Employees (Queensland Lo c<1 I Government. Energy, l'orts, ln fom1a tion Tec hn ol ogy. Social ,md Community Services Branch) and Au stralian Soc ia l Wel fare Union of Emp loyees (Q ld ) AND Department of Em ployment. Vo cational Education. Tra in ing and Industri al Rela ti ons {No C/Boj/99./J JUSTI CE MACKENZIE, PRES IDENT 26 August 1994 Ap pea l - Decision of I nd ustrial Commission - Ama lg amation - Cou nterpa1t Fe <l e ra l Bodies - Proposed 1-\malgamated Organisati on - Section 4 17 •· Interpretation - Exemption from Ballot - Ap peal Dism issed. JUDGMENT This is an appeal by th e Au stra li an Se rv ices Industr ia l Union of Employees (Queensland Local Government, Energy, Ports, lnfonnation Te chn olo gy . Social and Community Services Branch) ('·t he A.S.U.") on behalf of itse lf and th e Au st ra li an Social Welfare Union of Employees (Qld) ("the A.S. W .U. " ) against that part of a decision of the Chief Ind ustrial Co mm issioner wh ich refused an exemption from ballot pu rsu an t to s. 417 of the Industrial Re la1ions : IC/ !990 ("the Quet: nsland Act''). 9 Septembe r. 19941 QUEENSLAND GOVERNMENT lNDUSTRIAL GAZETTE 245 /\ t the t im e when the matter c ame before the Ch ief Industrial Co mmissioner t he amalgamation procedure un der the Industrial Relations Acl 1988 (" th e Commonweal th Act'') had been un<lertaken and the federal co un terpart of the A.S.U. had been grante<l an exemption from ballot under s. 25 3G or th e Commonwea lth Ac t. It was a ll eged. an d the re wa s ev idence to support the proposition. that the industri al organisations involved in the proceedings under the Com monwealth Act were counte rp art lcdcral bodies with in the 111L'aning of the Queensland Act. Sect io n 41 7 applies if:- (a) Counterpart fede ra l bod ies of industr ia l organisat io ns have amal gamated after cond ucting a bal lo t under the Co mmonwealth Ac t; an<l (b) The i nd ustrial organisations propose to am algamate under the State Act. Where those !'acts are es tablished the proposed am algamated onrnnisation may apply to the ln <l ustr ial Commission fo r an e:x~mp ti on from the requi re ment that a ball ot of its mem be rs be hc l<l in relat ion to th e amalgamation. The "proposed ama lgamated organisa ti on ·· is t he indust ri al org ani sation of which th e members of the p ro posed de-registering orga nisation arc proposed to become members. Whe n th e /\ .S.U., ( th e "proposed amalgamated organisati on.. ). applied for ex emption fr om t he requi rement that a ballot of their re s pe c ti ve me mbers be he ld. the Chief Commissioner construed s. 41 7( I) as requi ring each of t he co untcrp an federal bodies to have eo n<luctcd a ball ot under the Common \\'c alth Act. I le fo und th at as t he organisation alleged lo be the counterpart federal body of the A.S.U . h ad not co nducted a ballot because it had been exempted unde r the Co mmonwealth Act. the requirement of s. 41 7( I) had not been met. Both Mr .I.S . Oo uglas Q.C. who intervened in the matter on be half of the Minister fo r Emp loyment. Vocational Education. Training and ln<lustr ial Relations a nd Mr Amerena for the appellants subm itted that this construction was wrnng. It was su hmitted that th e t ru e interpretati on of s. 417( I) was that if cou nterpart fede ral bod i~s had amalgamated and there h ad been a ballot held under the Commonwealth Act th at was su flic ie nl to enable not on ly the A.S.U . but al so t he /\ .S. W.U . to be ex empted from a ba ll o t. It was s ubm i tt ed that it was an incorrect a pp roa ch to interp re ts . 41 7( I) as if it read "after each has conducted a ba ll o t" under the Co mmo nwca hh Act. In su ppon of th is propo~ ition. Cou ns el relied on t he purposive intention conta in c<l in s. 389 of the /\et. and in reliance on s. I 4B( I) or the Aus /n1erpre1mion Ac! 195./, the Mini stcr·s Second Reading sp eech when t he Bill con taining the present s. 41 7 was hcfore Parl iamcrH and the explanaiory memorandum wh ich accompanied the Bi ll . It was sub mi tted that these clearly ind icated that the int en tion was to allow ama lgamat in g organisati ons in Quee nsl an d lo rely on a federal amalgamation ballot where o ne had al ready b~en held . It is uncontroversia l that the A.S .U. and the A.S .W .U. propose lo amalgamate under th e Queensland Act and that the co unterpart fedcrd l bodies of the A.S. U. and th e /\.S.W.U. ama lgamated alte r t he counterpa rt of' thc A.S. W. U. conducted a ballot wh il e th e A. S. U. wa s ex empted fro m ba ll ot under the Co mmonwealth /\cl. lh c <lifliculty arises bccaus..: s. 417(2) re fer, lo the "proposed amalgamated organisation.. applying fo r exem pt ion . The "proposed amalgamated organisation" is dclincd as the industrial organisat ion or proposed ind ustr ia l organisation of' which members of thc proposed dc rc giste ri ng organisations arc proposed to become mem be rs (s 390} . The fonne r in thi, case is the A .S l;. The latter ca tegory has no app li cat ion to the case because the propo s,;d am algamated organisation is not an association which is proposed to be registered as an indust r ial orga ni sa ti on. I c an put aside t he questi on of an y p ra ctical area of application of s. 41 7 wi th respect to this cate go ry. Wh at is now s. 41 7 was in serted in the Act by the Industrial Rela1ions Reform Act 1994. For reasons which ap pear below, the interpretat io n contended for c an only succeed if the phrase "proposed a ma lgamate<l organisation·• bears a meani ng other than the defined mean ing in s. 4 17 and in s. 406(3) which was inserted at the same time. That meaning wou ld have to refer to t he ho st orga ni sation fo llo \\' ing ama lgamation. hut the practica l prohlems wh ich would be involved in that no tion and of "mem bers" of the organis ati on ma ke th at meaning unattracti ve . There would a ls o he th e consequence th at on ly in those isolated cases \\'0 uld :he ph rase bear a different meaning. Under s. 400(2) a proposed amalg.arna ted organisation ma y file an application for exe mp tion fr om the requirement that a hallot of it~ memhers be held in relation to the amendment. The obvious rea<l ing of th is is that th e A.S. U. ("the proposed amalgamated orga ni sation ") may apply fo r exe mp tion in respect of a ballot of its o wn mem bers. Oth er provisions of s. 41 7 tend to con/inn this pri ma fac ie inte rp retation. Fo r example, s. 4 17(3) pc m1its a member of th e proposed amalgamated organisation to object to the exempti on if it wo ul d de trimentally a ff ec t the obj ec tor·s inte rests. Prior to amalgamat ion day a mem ber of th e A.S. W. U. c an not be sa id to be a me mbe r of the propos e<l am algamated organis at ion (s . 4 25( I)). Further under s. 41 7(6) if exemp ti on is gran ted members of the ··applicant ind us trial organisati on " arc ta ke n to have approved the pro pos ed amalgama ti o n. The "appl ic ant industrial organisation .. is. un der s. 40 0( I ) the ..proposed ama lga mated organisation". i. c. th e J\.S. U. There i~ no reason to suppose that the defined me aning was not intended to app ly in s. 400( I) a.- it was one of the origin al sections in the subdi\' is io n. Section 14H of the :lets /111 erpretn 1ion ;let 1954 permi ts extrinsic material capable of assist in g in th e inte rpretat io n of a provision to be given considerat ion :- (a) if t he provis io n is ambiguous or obscure: (b) if the ordi nary me an ing of th e provisi on leads to a result that is manifes tl y absurd or is unreasonable; or (c) in any other case - to con firm th e intc.rprctation conveyed by the ,)rdinary meaning of the provision. Paragra ph (c) can immediately be put asid,; hccausc the ordinary mean in g of the provision is alleged not to represent ihc true in te rp re tation. Section 1413 (2) sug ge sts in paragraph (a) th at in general it is desir ab le that a prov ision be in tcrprt:ted as having it:; ordinary meaning. So far as s. 14B ( l)(a) is co ncerned if the propositions referred lO earlier had not been advance<l in the Sec ond Reading s pe ech a nd the explanatory memorandum. the provis ion cN1ld n ot be des cribed as ambiguous or obs cu re. In such a case, th e provis ion cannot be reli ed on . So fa r as s. I 4B( I )( b) is concerne d. it is necessary for me to conclude that the o rdi nary meaning of the pro vi sion leads to a rcsuh that is manifest ly absurd or is unreasonable before it can be used. In my view. the ordinary meaning of th e section can no t be so desc ri bed. Th e provisions of s. 41 7( I J can be quite sensibly read as dealing with the organisa ti on wh ic h will rece ive mem bers as a result of the a 111 algamation. Section 4 16 a ll ows it to be cxemptc<l from the requirement of a b all ot if the nu111bcr of members that could be admi tted w it because of th e ,ima lgamation docs not exceed 25% or its mem bers on the d ay of the ap plica ti on . The Ch ief In dustr ia l Com mi ssion er. in fact. granted the A.S li.'s co nc urrent applic at i(1n under thi s provision . -- 1 of 2 -- 246 QUEENSLAND GOVERNMENT rNDUSTR I/\ L GAZETTE [9 September, 1994 Sec tion 4 I 7 c an be sens ih ly read 10 allow it 10 be exempted if. al the federal level. its counterpa rt fed eral body ha~ co11duc1ccJ a ball ot under the Commom,eahh Act . The t\\O secuons can be sensi bl ) read tog ether as 1101 being co ncerned with th e pro po sed dereg1stering organi sa ti on . ·mere is. in the modem approach to statutol) intcrprc1a1i on. suppun for th e \ icw llH1t where th ere are indications__mlh.i!L..!h£ s rn1111 1: 1h01 a particu lar 111terpre1a1 ion does 11 01 confon,1 to the legi,lall\ e intent. the li teral mterpretation ma) not be appropriate Ma,on and Wilson JJ said 111 Cpo per Brookes l \\'o llong.ong.l Ptv Lld v. Federa l Com missioner o fTa xa1ion ( 1980- IJ 14 7 C LR 297. 320- 1:- "Thc fundamental obJCCI of statutory con~truction in c, cry case is to ascertain the leg islat ive intenti on by re ference 10 th e language of the instru men t viewed as a ,,hole. Out in perfom1ing that task that courts look 10 1he operation of the statute according 10 its tcnns and to leg111ma1c aid~ 10 cons1n 1ction. 1 he rules. a~ D.C. Pearce sa~s in Statutory /11terpre1a111m . P. 14 . arc no more 1hnn rules of common sense. de~igned to ach,e,e th1~ object. TI1ey arc nnl rnlcs o fl a,\. If the ju dge applies th e literal ru h: it is because ii g ives empha~i~ lo th e facto r \\hich in th e pu rticul .ir case he thinks is decisi\l: \i. hen he considers that the s1a1u 1e adm,1, of no reason::ihl~ a lt em athc cons1ruc 11 ons 11 ,~ becau se (a) t he langullgc is intractable or (b) although 1hc language is 11 01 imractable. the operati on of 1he sta1u1c. read li1erall} . is not such a, to indi ca te that is could nol ha,·e been mtended b~ the leg1 sla1ure. On th e ot hcr hand. whe n the judge labels th e operation of 1hc statute as ·absurd'. ·e ,traordinJf) •. ·capricio115 ·. 'irrational' or obscure· he assigns a ground for concluding that the legislat ure co uld nol have int en ded such an operation and that an alternative intc rp n:iation 111us1 be p re fe rred. 13ut th e propriet) of departing from the lit e ral mterpretauon is not con fined 10 situation~ d.:scribcd b) these lahels. 11 .:,tends 10 a ny si1u a1 io11 in wh ic h for good rea son 1hc opern tion of th e ~ta tule on a literal reading doc~ not confonn 10 the legisla1i,c 1111ent as ascertained from the provb1on5 of t he statute. inc lud in g the policy whi ch may be d,~ce mcd from those provisions. Quite ob, iou) I~ quc,11011s of degree an,;c. If the choice 1~ be twee n two stro ngl y comp~t ing interpretati on ~. a~ we h ave said. th e advantage may lie with t ha t whi ch pro du ce~ th e fairer and mor..: con, cnicnl opt:ration so long as 11 conforms to the lcgislali\C intention. I f. ho"cver. one 111tcrpreia1ion h as a powerful ad , amagc in ordinary mea ni ng and grammatical se nse. it wil l only he d is pla1:..:d if 11s op.:ration i~ pcrcei,·c d 1~1 Ix unintended:· 1 ,,as also referred to the object, of Part 14 . Di vision 9 of th e Act. The s en s ib il ity of th e expressed in 1cn 1i on s ma y be immediate!} conceded. Ho,,c, er. where the plain words of the pro,·isiun read in the context of the Act a:. a "hole do 1101 allo" fo r the mterpretation supported by Mr Douglas and Mr Am cre na they cannot n,err id e the ordinal) mean ing of the wo rds. Having co me to th ose co nclusion 5. I am unable to find a ba 1s fo r u~ing eAtrin'1c e, idcncc or 1hc principles quoted above to disturb the ordtnary meaning of the pro visio n. If ii is 1h ough1 npproprimt: t ha t pr ovision he made fo r reco~nllion of a federal hal101 he ld b) the proposed deregistcring orga111,a1ion or that an exemption from federal ballot granted to the fed eral counterpa rt of th e . late proposed amalgamated organisat io n be re cogn ised ii wi ll ha ve to be done by legislative a111 e nc.lmcn1 \,h1ch proper() achie,~ "hat ha:. hecn claimed in re spect of the prm i~ions alread~ . It cannot be done b) a pm ce~s of enlarging the wo rds of th e scc 11011 beyond thei r lo&1cal meanin g. fhc appeal 1s dismissed. Dated t hi s twen l)•six th day of Au gu~ t. 199 4. K.Ci \\' \ 1ACKC1';ZI F. Pre,iJent Appearunces - Mr :vt Amerena (Instructed by Peter Channell & Associates) for Australian Servi \.eS Industrial Union of Emp loyees (Qt1censland Local Gove rnment. Ener gy . PortS. lnl'onnat ion lec hn ology. Social and Commun it) Services llranch) and Australian Soc ia l Welfa re Union of Emplo) ecs (Qld). Mr J .S Dougla~ QC with him Mr I.. l\occabella (i nstructed by the Cro\\11 olicitor) for the Department of Emplo) menL Vocational Educauon. Training and lndu)trial Relations. Operative Dat e· 1' /A Judgmcnl - A t: and AS\\ l, and Df VET IR Rclea~ccl · 26 Au gust 199·1 #il######lffl###li###f##l##########ll##l##l######l##l######l#I## 9 Septe mber, 1994} QUEENSLAND GOVERNMENT INDUS TRIAL GAZETTE 247 -- 2 of 2 --