Dalrymple Bay Coal Terminal Pty Ltd v Federated Engine Drivers' and Firemens' Association of Australasia Queensland Branch, Union of Employees [1993] QIRC 371 (1993) 143 QGIG 432

432 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [22 October, 1993 ############### ######## ####### ########### ##### ### ### QUEENSLAND INDUST RI AL RELATIO NS COMMISSION Industrial Relations Act 1990 s. 187 - 11otiiication oi dispute s. 132('1) - Commi ss ion of i ts own moI ion Dalry mp le Bay Coal Term i na l Pty Ltd A N D The Australian Workers' Un ion of Emp loyees, Queensl an d AN D Federated Eng ine Drivers' and Firemens ' Association of Austral as ia Queensland Bra nch, Union of Employees (Case No. 0550 of 1993) BULK HANDLI NG - DALRYMPLE BAY COAL TERMINAL PTY LTD I ND USTRI AL AGREEMENT COMMISSIO N ER BLOOM FIEL D 12 Oc tober 1993 Pre ference of Emp loyment - U nio n Me mbersh ip - Eligibi lity for Membership - Industri al Dispute . - Change . of Uni,:,n Membersh ip following Change ot Du tr es - Commrssron of its own motion - FE DFA to show why Commiss ion should no! vary Agreement - Arb it rated Matter - Change of membersh ip fol l ow ing change oi duties not requi red ~ Industrial AgreemenI to be vari ed by Comm i ss ion of it s own motion. DECIS IO N On 16 August 1993 A us trali an M i nes and Metal s Ass ociation Inc. no ti fi ed the Industri al Registrar ot a dispute pursuant to section 187(2) oi the Act at Dalrympl e Bay Coal Ter mi na l Pty. Lt d. in the foll ow ing terms: - "An employee of Dalrymple Ba y Coa l Termin al Pty. Lt d. has been appointed to a p osi tion as an lnloading Ope.ra tor - Mob ile Equ ipment. The Federated Eng ine Drivers' and Fi re m ans' Associa ti on have adv is ed that it i s their expectati on that th i s empl oyee , who is currently a member of The Austral ian Wo rk ers' Un ion, res ign from that union and become a member of t he Federated Engine Drivers' and Fi re m ans' Association. The company and The Australi an Workers ' Union bo th hold the view th at the indi vidual should not be required to change un ions.". The Commi ss ion as presently cons! ituted visited the sit e on 23 A ug ust 1993 and cha ired a conference between the partie s whi ch l asted some fou r hours. D uring this conierence the Commission auempted to achieve a resol ution to the di spute wi thout success, with the rep resen tat i ves oi the FED FA rei terating their demand th at the perso n appointed to the pos ition oi ln loader Operator - Mobil e Equ ipment must become a member oi t he FED FA. The reaso n advanced for thi s contention was tha t the pre fe rence of employment cl aus e of t he Bu lk Handling - Dalrymple Bay Coal Terminal Ply. Ltd. - Industrial Agreement (142 QGIG 109- 119) required persons in part icular classifications to be members of the FEDFA. At the conclusion of the conference proceedi ngs on 23 Au gu st the Commi ss ion m ade a verba l. recommen~ati o n. which i t indicated would be committed to wn tr ng w1th1n torty-erght ho urs and distribu te d to the parti es (no court reporters accompanied the Commi ss ion to Dalrymple Bay but the Commi ss ion rec~rded the ver ba l recommendation on a dic taphone). On the morning of 25 August 1993 the Commission forwarded . th e wr itt en recommendation to all parti es. Grammatical cons1derat rons as ide, both the verbal recommenda ti on on 23 August and the wri tten recommendation on 25 August were in t he same terms. Brie fl y, the recommendation recorded the Commi ss io.n 's view th at people sho uld not be requrred to chan ge unron membersh ip wh en they are se lected from within the curren t workforce to take up a va cant position as follows:- "ln other words if, as in the instant c as e, an FEDFA member l eaves and th e pe rson selected to fi ll the vacancy happens to be an AWU member, that person should no t be req ui red to have to join th e FEDFA so lely because they are moving in to a position that was previously occupi ed by an FE DFA empl oyee. I wo uld hold the same view if an AW U person res igned and the replacement who w as se l ec ted ha ppened to be an FEDFA member.". Prior to the wr iu en recommendati on be ing recei ved on si te t he FEDFA convened a meeting of its membersh ip on 24 Au gust an d resolved not to accept the Commi ss ion's verbal recommenda ti on of t he previous day. After the wri tten re commendation was recei ve on si te the AW U convened a meeting of i ts membership wh ich resolved to accept the Commission's recommendation. Sub sequ ently, the Industrial Registrar was adv is ed by the Australi an Mi nes and Meta ls Association Inc. on 30 August 1993 that the di spu te remained unreso lved an d requeste.d th at the matter be rel i sted for further confere nce. This verb al req uest was foll owed by a writ te n request lodged on t he morning of 31 August 1993. On the same morni ng th e FEDFA al so wrote to the Industri al Regi strar req u est ing a re-li st ing of the matter in the foll owi ng week on the bas is th at certain official s of the Un ion would not be avail able until th at time. Because of its concern that the dispute had existed for some two weeks t he Comm is sion chose to l is t the matter on 1 September 1993. In the event, the Commission was aga in unable to stee r the dispute towards a resolu tion and at the conclusion of the conference on that date indi ca ted to th e parties that it proposed to li st the matter again for Thursday 9 September 1993 for hearing. T he Commi ss ion indicated to the FEDFA that i t hoped that at t ha t time the FEDFA would inform the Commi ssion and the other parties tha t it ha d accepted t he Commi ss ion 's recommend at ion oi 25 August. In the event th at that advice was not forthcom ing the Commission wou ld req uire oi the FEDFA to outline reasons why the Com mi ss ion should not, of i ts own motion, act to alter the Preference oi Employmen t cl ause so as to re move any ambiguity existing therein and wh ich was - in th e view oi the Commi ss ion - the source oi an incorrect interpreta tion by the FEDFA which l ed it to develp its con tention that the employee involved in the d ispu te m ust change unio ns an d join the FEDFA. When the matter resumed on 9 Sep te mber the Commi ss ion was informed that the FEDFA shortly before th e h ear ing ha d ta k en steps to apply to the Chief Industrial Commissioner purs uan t to sec ti on 46(2) of the Ac t to have th e matter re ferred to a Fu ll Bench of the Commi ss ion. In proceedin gs in chambers before Chief Commissioner Hall on 10 Se p te mber th e FEDFA appli ca ti on to h av e t he matter referred to a Full Bench was rej ec ted. As a result the matter resu med before the Commission as presen tly con stituted on 21 September and con tinued to conclusion on 22 Sep tember. M r J. Coogan, who appeared for the FE D FA in the substantive part of the case, took the Commi ss ion to th e history of t he formation oi the Dalrymple Bay Coa l Term i na l Ind ustrial Agreement incl ud ing meetings between the Un ions rep resen ted on si te and the employer commenci ng in 1982 w ith pa rticu lar emphasi s on meetings to discuss the demarca ti on of equipment and jo b des ign. M r Cooga n highlighted that "even in the ear ly f! 22 October, 1993 ] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 433 discussions in rel at ion to the formation oi t he Industri al Agreement there were very clear understandin gs in respect of the classifications which the individual un ions, or in particular the AWU and the FEDFA, wo uld cover". The Commission was al so referred to va rious affid av i ts by management representati ves in connectio n with other Industrial Co mmi ssion proceedi ngs including one wh ich reiterat ed the above history and another which referred to the "DBCT Reciprocity Industrial Agree ment". Th e lastmen ti oned affi d av it was als o notabl e for i ts reference to labour turnover iigures which showed th at labour tu rn over for wages emp loyees was 1.71 %. M r Coogan al so referred to a transcript of Federa l Commission proceedi n gs where M r B. B. Ma y for th e compa ny, gave evidence about employment progression where vacanci es were fi lled one from the inside and one from the out si de wi th all people moving to become FEDFA members. This evidence given in March 1991, also con ta in ed the vi ew of M r May that that syste m '' wi ll become red und an t under workplace restructuri ng because, well, certa inly, that' s - that's my view, and I expect th at m ost of the other unions feel the same way and the reason for that is because you ca n 't have an in te rna l ca reer path that provides for every second opportu nity coming from the outside.". A number oi other i ssu es were referred to, including proc eed i ngs before Commissioner Edwards (D62 of 1993 and 0332 of 1992) during which issues of a similar nature to the instant c ase we re d ea l! with. Mr Coogan submitted th at these matters reinforced his union 's view that 1he core tas k of employees determined t he employee's coverage in r espec t of uni on membership. Referring to the Dalrymple Bay Coal Termi na l Pty. Lt d. -- Certi fied Agreement M r Coogan asserted tha t the compa ny has "approach ed the question of awa rd re structuring by putting t he cart before the horse". He st ressed th at the structure was still a t ask-based class ifi ca ti on and not a skill based class ification structure "and in those c ircumstances and until such time as the Award Res tructuri ng Pri nc iple ca tches up with Dalrymple Bay in terms of providing for a sk ills-relat ed ca reer path for employees, th en the task-based classification struc tu re, together with all of th e other prov isions con tained in the agree ment, including t he preference provi sions, have to appl y. That's the reason for th e very clear ind ication oi the core sk ills oi em ployees being recognised.". M r Coogan then turn ed to the Pre ference of Emp loymenl clause in t he Bu lk Handling - Dalrymple Bay Coal Te rm inal Pty. Ltd. - Indu st ri al Agreement. Mr Coogan submitt ed that:- " lf the Commission pl eases, the position of o ur un ion in re spect of the i ssue rela ting to th ese proceedi ngs , as it rel ates to the Preference of Em pl oy m en t provisions in the ag reement, is no t at all tied-in with subclause { 1) of the Preference of Emp loyment clau se. We ac kn ow ledge that that pa rticular subclause i s to come in to effect in those circumstanc es where t he re is recru itment ex ternally by Dalrymple Bay, an d that would be at the po int oi engagement with Dalrymple Bay . We ack n ow ledge th at that is t he position in respect of a new empl oyee. Our concern, if the Commi ss ion pleases, and o ur the ba sis of our argument, is not in rel at ion to that su bclause. O ur concern is in relation to subclause (3) of th at clause, and that cl ause was put in pl ace speci fi ca lly to cater for the internal situat io n or movement of empl oyees internally. Now, when th e agree m en I was put together by t he parties and the pa rti es di scussed the questron of coverage in respect of the va ri at ion cl assi fications it w as understood at that pa rti cul ar time that there wo uld be some movement of empl oyees from one area to another as the l ife of the ag reement progressed, and t ha t particular prov is ion wh ich sta tes: tha t pr efe rence of con ti nuation of employment under this agreement shall be given to financi al members of one of t he appropri ate unions mentioned in th is clause.". And further on :- "A nd ba sed on o ur knowl edg e of the format ion of the Agree ment, we had no hesitation whatsoever in acknowledging th at in those circumstances where employees are trans ferr ed on an internal basis then the provisions of subcl aus e (3) are or were or iginally intended to ap pl y.". Mr Coogan con ti nued by assertin g th at subclause (1 ) of cla use 2.4 gave mean ing to subclause (3) by id en tifyi ng the eligib ili ty of rights of organisa ti ons to cover certain classes of employees who were continuing in employment. Fi na ll y, Mr Coogan turned to the Eligibility Ru l es of the AW U in support of his con tention that the AWU had no capacity to enrol the disputed perso n at Dalrymple Bay, thereby making it imp ossible for th e AWU to cover th e di sp uted per son. It was also conIended "that the very reason fo r the way in which the Prefere nce clau se is framed by including subclause (3) was to actual ly cater for the con st i tutional or eligibility righ ts of the unions when it referred to the appropri ate union. ". Mr B. May who appeared for Dalrymple Bay Coal Te rmi nal Pty. Ltd . presented submissions on beha lf oi the employer. He presen ted brief submi ssions and comment in respect of eac h of the FED FA exhib it s highlighting t he selecIivity of interpreta ti on placed u po n many of them by Mr Coogan. Mr May also referred to t he ne w organi sat ional structure at Dalrym ple Bay that had to do with the work of Ell iot Jacq u es and the reorg an isa tion of work based u pon distinct work groups wiIh different sk ill level s invol vi ng emplo yees who will work as a tea m and be encouraged to sha re knowled ge and sk il l, with work being assigned on the basi s of the individual core task being the iirst priori ty. Mr May al so sub mitted:- "The FEDFA has attempted to convince t he Commi ssion th at the preferen ce clause in the DBCT Industrial Agreement extends further than the definitions of the prefere nce clause in t he Act - u nd er the old Act, and i t was s. 11. 9 - I think it t ranslates now to 147(2 )(c) - tha t it shall appl y at the point of engagement and at the point of retrenchmen t.". Finally, Mr May submitted that the Commi ss ion should proc eed to sett le the d ispute t ha t currently exists by varying the DBCT Industrial Agreement in the ma nn er set out within a draft proposal which he handed up. Mr J. Lu dwig who appeared for The Aust ral i an Work ers ' U nion of Employees, Queensl an d, stated that the AWU "saw that it was not i ts role to comment in respect of the matter where the FEDFA wa s to sh ow cause in respect of an issue, however, h ere we have bee n embroi led in an i ssue not of our making". H e con tinued " what t he AWU says, an d it has n't wan te d to trave rs e these i ssu es, but there is no such ma tte r th at t he Commission can dea l wit h in terms of acceding to a demand by a un ion that an employee join. The company has no auth ority as I understan d it to direct an emp loyee to join a uni on. The employee can choose to joi n which ever union he so desir es, how ever, we then have to lo ok at the position that the comp an y has adopted, and in t er ms of DBCT, wh ich is, as I understand it, a common l aw understanding between the parties, where there i s a cond ition of empl oyment, or at l eas t an understanding that t he empl oyees who are employ ed by DBCT join an appropriate union, and that's about as far as I understand it can go. If the empl oyee c hoo ses to re main a member of, in th is instance th e AWU , we ll, no -one, as I understan d it, can d irect him to cease membership w i th that union or take out another membersh ip of any other union unl ess he so chooses; or unl ess, espec ially where, in a position its in a tr ansfe r or a tr an sfer arrangement.". He then went on to ci te tha t there was a lo ng line of Fede ral Court matters wh ich h ad decided that the entitlement to jo in a union begins at the po int of engagement and tha t membership can continue ii the person goes off to another occupation or to another employer. It was su bm i tted that in the absence of any "purge ru le" within the Eligi bility Ru le or t he Con st itution and General Rules of the AWU perso ns who were eligible to j oin the AW U initially are st ill en titled to remain a member of th at un ion, notwithstanding that the ir work had changed. Mr Ludwig went on to indicate that t he re was no legal basis upon wh ich the FEDFA could pers i sI w ith it s demand th at the pe rs on concerned jo in th at union. He i nd icate d that "since about 1967 you can't prov ide for compu lsory unionism" and referre d t he Commission to the Committee of Review of the In du str ial Conciliation and Arbi tration Act (the Hanger Commit tee ) where such i ssues were canvassed at length. The Commi ss ion was al so re ferred to a decision by th e Com mi ssion in Re. Shop Assisrant s' Award - Northern Division and Others (1970 74 QG IG 300) where it was contended th at "continuation" did not mean throughout empl oyment afte r the po int of en g agem ent and before the po in t of ret renchmen t. Mr Lu dwig then asserted th at Mr Coogan had sought to give the exi stin g prefere nce cl ause a life as a demarcation clau se and contended that the Comm ission si mply cou ld not read the clause as a demarca ti on clau se, nor give i t the we ight of a demarcati on clau se . ........ f I. !' i'! i i; -- 1 of 2 -- 434 QUEE NSLAN D GOVERNMENT INDUSTRI AL GAZETTE [22 October, 1993 Mr Lu dw ig turned to the Li st of Ca llin gs of the AWU wh ich Mr Coogan h ad used to support an argument that th e AWU did not posses s eligi bi li ty rights to cover the disputed pe r son at Da lrymple Bay Coal Term inal Pty. Ltd. Add i tional subm issions were advanced to support the co ntention that in the ab se nce of any purge ru le a person en ti tl ed to joi n a u nion was entitled to remain a member of an\' such or gan i sa tion notwithstanding that they had subsequen tly changed their occu pa tion and cease d to become el igible ( see Pritchard v Krantz and Anoth er 5 IR 437 at p age 433 -4 44). In return ing to the AW U List of Callin gs Mr Ludwig subm itt ed that the pr ovi so at pa r agra ph (v) of i tem ( 16) contai ned a fundamental am bigui1y wi th i 1s reference to the facl that no thing in paragraphs (ii i) and (i v) shal l be d ee med IO "infringe" upon the member sh ip ri gh1s of the FED FA in rela1i on to employees e li g ib le 10 jo in that union pu rsuanl to any award or i ndustrial agreement. It was subm i tted that indu st ria l awar ds or agreem en ts do not provide membership righ ts as t hese c an only b e co nferred and can be derived fr om the Ac 1. Issue was al so ta k en wit h w h at the word "i nfr inge" might m ea n. In hi s r ep ly M r Coogan re ferred to a number of the submissions advanced by both M r May and M r Ludw ig and doing so perhaps raised 1he hub of the i ss ue from the FE DFA's p erspective in 1h e foll ow ing ter ms: - "So w hat we come down 10 now, if th e Commission pl eases, is to come to a posi1ion w hereby the compa ny is say ing to us tha t wh ilsl th ey support the unioni sa ti on pol icy they're no t prepared to apply the rul es of 1h e organi sat ions i n respect of employ ees changing from ca lling 10 ca ll ing. Now, 1ha t's what we've come down to now. Now, th at 's the position, Commissioner, that in our view the emp loyer in o ur respectful su bmission h as no c ho i ce but to ac cept the rul es of 1he organisat ions in question in respect of employe es transferr ing from ca lling to ca ll i ng." . M r Coogan fin ish ed his submi ssi ons b y stati ng:- "We acknowled ge that the Commission does not h ave the right to order a person to become a mem be r, but nonetheless the Commission does have the n ecessary power to order that the Agreement be observed and also tha1 the rules oi th e respe c ti ve organisations be of pri me co nsiderati on in respect oi the membership of employees at the Da lrymple Bay Bulk Su ga r (sic) Term inal ". Conclu sion The su bmi ss ion s and ar gu men ts advanced duri ng th e fo rm al proceedi ngs have served to si mp ly reinforce in the Commi ss ion's mind 1hat thi s dispute ari ses solely as a resu lt of the i n1erp retation which the FE DFA seeks to have appli ed to th e Preference of Emp loymen t clau se in 1he Bulk Handling - Dalrymple Bay Coal Te rm in al Pry. Ltd. - In du strial Agreem en t. Th e concl uding su bmissions oi Mr Coogan serve 10 emphasi se the point that the FEDFA seeks to have applied to the Preference of Employme nt cl ause an interprel at ion which cannot, by law, appl y. 11 ma y be true that 1he e mp loyer has previously acted 10 requi re employ ees to ch ange unions w h en the ir functions have changed. Th i s has b ee n a common l aw undersianding and is not on e whic h h as been forced on it by the words in the Preferen ce of Emp l oyment clau se . However, the employer has now determi ned 1hat su ch a requi rement has become red undan t under workplace r es truc tu ring and that it is no longer wi l li ng 10 requi re employees to change union membership ii th eir duti es change. The Commissio n has no power to force the employer to alter thi s posi ti on and to give a meaning to the Preference oi Employmen t cl ause w hich does not. and cannot lega ll y, ex ist. Ho wever. the Commission does h ave the power 10 remove any ambigu ity wh ich mighi exi st in th e Pre ference cl ause an d which, by its exist en c e, i s be ing u sed , w rongful l y, by the FEDFA to suppon its cl ai m as to the me an ing of the Preference clause. Pursuanl to the gene ra l pow ers given to it under the Ac t and the specifi c powe rs provided at section 132 ( 1) of the Ac t, th e Com mi ss ion deter min es to varv cl au se 2.4 -- Pre ference of Employm ent in the Bu lk H and ling - Da lr ymple Bay Coal Te rminal Pty. Lt d. - Indu st rial Agr eemen t bv adding a new su bcl au se (4) 10 the cl au se immedi atel y afi er the exi st i ng subcl aus e (3) and before the existing last paragraph in 1he fo ll ow i ng ter ms :- "(4} Not hing i n this clause shall be i nterpreted to requ ire any empl oyee w ho is a member of the Fede rated Eng ine Drivers· and Fi rem ens ' Association of Australasia Queensland Branch, Un ion of Employees nor any employee w ho is a member of The Australian Worker s' Un ion of Emp loyees, Queensland to change union membership to the 01he r u nion mentioned in this subclau se in ci rcumstances w here such employee's duti es change after i nit ial engagement by 1h e employer in one o( the cl assifications iden ti fied in subclau se ( 1) hereof." . The va riation to the Industrial Agreement shall ta ke effect from 12 Oc tober 1993. O rder accordingly. A. l. BLOOMFIELD, Com mi ssione r. Appearances:- Mr ). Coogan an d Mr R. Sta ker for the Fed erat ed Eng ine Dr ivers' and Fi re m ens ' Association of Australasi a Queensland Branch, U nion of Employees. M r J. Ludwig for The Aus1ra li an Workers' Un ion of Emp loyees, Queensland. Mr 8. May, M r F. Ross and Mr I. Turner /or Dalrymple Bay Coal Te rmi nal Pty . Lt d. Ope rative Dat e: 12 October 1993 Decision - Prei eren ce Rel ea sed : 13 October 1993 #################################################### r 22 October, 1993] QUEENS LAN D GOVERNMENT INDUSTRIAL GAZETTE 435 i -- 2 of 2 --