Determination of a Policy in relation to Publication of Certified Agreements in Whole or in Part and in relation to Restraint and Release of Confidential Portions [1993] QIRC 415 (1993) 144 QGIG 600

600 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [1 9 November, 1993 ########## ##################### # #################### QUEE NS LAN D IND U ST RIAL RELA TIO N S COM M ISSI O N Industrial Relations Act 1990 s. 37 - statement of po li cy Determ ination of a Po li cy in rel atio n to Publication of Certified Agreemen ts in Who le or in Pan and in relat ion to Restraint and Release of Confidenti al Portions (N o. CA24 o( 1993) CHIEF INDUSTRIAL COMM ISS IONER HALL COMMISSIONERS EDWA RDS, SWAN 1 November 1993 Power to Certify - Scope of !nci de0tal Power - General Powe rs of Commi ssion - Nature or Certif ied Agreemen ts - W hether Who le Agreement Mu st be Lodged - Effec.t of Collateral Agreement Considered - He ld No Power to Restric t Publ1cat1on. DECISION On 4 Ju ne 1993 an appli ca t ion by The Australian Workers' Un ion of Employees, Q uee ns land for certiiica ti on of an ag reement pr ev iously en ter ed i nto by that organisation w ith Bora! Au.str.alian Gypsum Limited came on for hear ~n g before Co mm1 ss10 ner Edw ards. Commi ssioner Ed w ards was in tormed thar Annex ur~s 1 an d 2 to the proposed Certi fied Agreement con tained comm ercially sens itive material pub li ca ti on of . which w ould be damaging to th e Company's competitive pos111o n. Each of the Applicant or gan isation an d the Company supported the making of an order r es tricting ac cess to Annexur es 1 and 2 to the Commission, the Industrial Registrar and "t he .parties who are signatories to the Agreemen t" . The tran scnpt records that Commissioner Edwards respo nded to that Appl1ca11on as fol lows:- "The Com mi ssion proposes to gran t an in te rim order in relation to the confidentiality of Annexures 1 and 2. The Commission gives noti ce of his i. ntention in l)rinciple to approve the Agreemen t as outlin ed In the application. The Commission proposes to have iurther di scuss ions wi th the Chief Commissioner in relation to the ge neral p olicy in rel ation to pub li ca tion of certified ag reement s. Accord ingly the Co mm i ss io n hereby adjourns the ma tter to ena ble clarification of the publication matte rs to be fi nali sed, an d th e parti es shall be advised in due cour se." . In fact Commi ss ioner Ed wards di d f ur ther discu ss the matter w ith the Chiei Industrial Commissioner, who on 7 June 1993 re fe rred to this Fu ll Bench the question whe ther the Commission has power to limit publication of a Certified Agreement in who!e or in part and, if an affirmative answer were . g,ven .to . tha t questio n, referred al so the matter of formul ati on ot the principl es governing the exerci se ot the power. 19 November, 1993] QUEENSLAND GOVERNM ENT fNDUSTRIAL GAZETTE 601 We take as our starting po int the proposition that the Queensl and Industrial Relations Commi ss i on i s a creature of statute and, as such, has only such powe rs as are conferred upon it by sta tu te (whether expressly or by necessary i mp lication). We do not co nsider s. 19{2). wh ich declares the Commi ss ion to be a Court oi Re cord, to vest the Commission vv ith i nherent powers; compare Re J (l 92 9) 29 SR (NSW) 20 and ASC and J v. Parker, unreported, Print K5699. 18 December 1992, (Fu l I Be nch ). It is plain that the Commi ssion has no expr ess powe r to prohibit publi ca tion oi a Certifi ed Agreemen t or an y part of such an agr ee men t. Howev er, the powe r to certify (s . 11 2j mu st be treated as ve sting power to do al I that is incidental and necessary to the exerci se of the power to certify, compare Parsons v. Martin 5 FCR 235 at 24 1. The question th en is whether a prohibition on pub! i ca tion m ay , i n any circumstances, be characteri sed as .. i ncidental and necessa ry ". Once an agreement is cenii i ed the provisions oi the lndusrrial Relations Act 1990 ope ra te upon i t to give i t for ce and effect. By s. 119(2) it prevails over the te rms of any award or ind us trial ag reement which wou ld otherwi se apply . By s. 12 2 i t is eniorceable in the sa me way as an award; i. e. a breach is a simp le offence, moneys payable under the agreement may be recovered in civ il proceedings and inj unc ti ve orders may be made to secure observance of i ts terms . Tho ugh it has its origin in agreemen t, a ce rt ified agreement is th us of the gen re oi su bordinate and de!egated l eg i sl ation . In Hughes v. /-Ii-Way Ads Pty. Ltd. (1963) QdR. 327 at 334 Wansta ll J, aiter referring to the decision of the Pri vy Council in Lim Chin Aik v. Reginam 11963) 1 A l! E.R . 223, wen t on to observe:- "The case has no relevance l o th e instant matter, except as an il l us tration of th e i mportance attach ed by the Pri vy Counc il to the accessibility of th e !aw to those who might be affect ed by ii Cai us Caesa r, better know n as the Fmperor Ca ligul a. i s reputed in literary tr ad ition to have made a practi ce oi depositing his cri minal edicts on top of a monument so that he would have ava i l ab le for punishment the luckless vi cti ms who tr an sg res sed them in ignorance of their ex istence, and w ith no opportunity of discovering thei r provision s. But he was also a wayward autocrat, given to i mpersonating Jup i te r, an d openly declari ng hi s w i sh that the who le people oi Rome had only one head that he might cu t it off at a si ngle stroke." . We are, w i thout impen inence, inclined to adopt H is H onour' s view. We are scep tical of the claim that it i s n eces sarv to the effec ti ve exerci se of the power to certi fv , at least in some cas es, to restr ict access w the certifi ed agreement w t he Commi ss ion, the Industri al Reg istry and " the pa rties who are signatori es ". Further, if the class who may not be denied access ir1 cl udes all members or potenti al members of an industrial union of employees considering entry into an engagement w hich, ii ma de, wou ld attract the operation of a certified ag r ee ment, we consider 1hat the c lass i s so large that any attempt to deny access to others is un li kely to be a success. Addi ti ona ll y. we have been unable to accept the Crown's sub mi ss ion that:- "Any i nformation rela ti ng to the terms and conditions of employmen t or the ob ligati ons oi the parti es needs to be prescribed i n a Certi fi ed Agreement.". We cannot ide ntify any provi sion in Division 2 oi Part 10 which would su pport re fu sa l of certiii ca tion on the ground tha t the memorandum of agreement lodged for certifi ca tion does not con ta in the whol e 01 the agreement(s) between the pa r ti es . In our oμ ini on the " agreement .. reierred to at Di vi sion 2 of Part 10 is i n truth the memorandum oi agreement referred to at s. 11 0(1). Tha t view deri ves support from the decision oi the .Au strali an Industrial Re lations Commi ss ion in family Court of Australia v. Pvblic Sec tor , Professio nal , Scientific Research, Technical, Commvnications, Aviation and Broadcasting Union, unreμorted, Pn nt K8 020, 11 June 1993 where in d i scuss ing the counterpart Commonwealth provisions the Fu l l Bench {at p. 4} said :-- "However in s. 134L the expr ess ion 'agreement' appears to be used to describe the ins1rument recording the term s oi what has been agreed. It i s a m ea ning i hat appears to be common to much of Div i si on 3A. Sect ion 13 4( (1 ) speaks of pa rti es making a memorandum of te rms agreed upon an d thereaiter in s. I 34C and the io li ow ing sect ions i n ·Division 3A reference is made to agr ee ment as ii it was a reference to thai memorandum: Section l 34L (d ) su pports that meaning of agreemen t in tha1 It permits amendment to remove ambi gu ity or uncertainty. Th is i s, in part, clearly a reference to a word or words in an instrumen t that might be ambiguous and w hich mi gh t have to be varied. The l imi ts on variation imposed by s. 134L are intend ed to li mi t the mean s by w hich the te x.t oi the i nSHumen t, being the ag r~ement, might be vaned w ith the obvious consequence ot l im iting the chan ges that might be made lo the effect of the agreement /lowi ng fr om va riations to its text. The legislature has impos ed limi ts on the ch anges that might be made to the text of the agreement as the means of l im i ting the ch anges that migh t be made to the effect oi an agreement.". Once it is accepted that Div ision 2 of Pa rt 10 permi ts the parti es to confine the recording of arrangements bearing upon such matte rs as trade sec rets and corporate strategy to agreements which are co ll ateral to the certifi ed i ns trument, the conclusion that a pow.er to l im i t access in an appropria te case is a necessa ry incident ot the power at s. 1 10 becomes a con cl us ion wh ich is beyond reach. Do ubt less, the efficacy in law of co l late ra l ag reemen t which is i nconsi sten t w ith the cert iiied instrum en1, is questionabl e. But tha t is a matter ior another case i n another place. The po int here is that the parties may of the ir own vo li ti on mai nt ai n the secrecv of some pa rts of their tota l agreement. If that be so, it is not n ecessa Iy to the efficacy of D ivi si on 2 of Part 10 to r ead s. 110 as con/erring po wer to suppre ss . It is con tend ed by the Crown that s. 77, wh ich i n te rms au thori ses the Commission to preven t the disclos ure of certai n material ten dered in eviden ce "would be of no u se if th e Commission could no t subsequently su p press si milar material contained in an award or agreement". The submi ss ion is that the power at s. 77 necessarily includes powe r to suppress material tendered i n ev idence wh ich would otherwi se find expression in an award or agreement. We are no t persuaded by tha t argumen t. We accept tha t s. 77 woul d be frustrated if reasons for decision containi ng the materi al suppr essed co uld not themselves be suppressed. However, it is ou r opinion that there is a di st incti on between supp ress i ng the publi ca tion of eviden ce and suppr ess ing an outco me wh ich affects the rig ht s an d duti es of per so ns so me of whom may not be parti es to the cause. To treat s. 77 as authorising suppression of a certified agreemen t con ta ining materi al tendered in evi dence and already the subject of a s. 77 order wou ld in our vi ew involve adding to and supplementing the power rather th an giving it full force and eifect by al l owi ng it to do al l that is nec ess a ry and incidental to i ts exercise. We suspect that in practice i ss u es as to confidentiali ty w i ll arise onl)' where the instrument to be certified contem plat es that the r ates of p ay se1 forth therein w i l l, d uring i ts ag r eed pe ri od of operation, be supplemented in consequence of productivity outcomes or wo rk changes and those outcom es or changes ca nnot be verbali sed without disclosure oi ma tters thought to be sensitive. It seems to us that i f the instrument contemplates su pplementat ion on the basis, e.g. of work change, produ ctivity impro.vement or increased efficiency, th e parties need do no more than trame e.g. the change, imp rovement or i ncrea se, behi nd the she lter of a s. 77 agreement, in order to avoid the argumen t that the ag reement is being varied w ithi n i ts te rm otherwise than as all owed by the Ac t. In our view the Commission has no po wer to li mi t a Certified Agreement in whole or i n pa rt. In the ci rcu ms tances it is not necessary to answer the second questi on referred to us. Dated this fir st day of November, 1993. D .R HA LL, Chief In dustri al Commi ss ioner. K.l. EDWARDS, Commissioner. D .A. SWAN, Commi ssioner. Appearanct•s:- Mr G. Crompton w ith h im Mr B. Debb ie for The Austra li an Worker s' Un ion of Emplo yees, Quee ns land. Mr A. Wa l ke r for the Cr own . M, D . Ra lston for the /, us trali an Counci l of Trade Unions, Queensland Branch. M r M . Belfield ior the Metal Tra d es industrv Association oi A us tralia, Queensland Branch, Un ion of Emp l oye'rs . - -- 1 of 2 -- 602 QUEENSLAND GOY ERNMENT INDUSTRIAL GAZETTE l19 Nov e mber, I 993 Mr G. M ui r fo r the Queensland Confederation of Industry li mi ted , Un i on of Emp loyers. O per at; ve Date: N/A Dec is i on - No Po wer to Rest ri ct Publi ca tion Rel eased: 8 November 1993 ###### ######### ###### ##### ############### ########### 19 November, 1991 ] QUEE NS LA ND GOVERNMENT INDUSTRIAL GAZETTE 603 -- 2 of 2 --