Federated Clerks' Union of Australia (Central and Southern Queensland Branch) Union of Employees and Another v Queensland Cement Limited [1993] QIRC 255 (1993) 143 QGIG 497

496 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [23 July, 1993 I I ) t \ l I' 23 July, 1993] QUEENSLAND GOVERNMENT IND US TRIAL GAZETTE 497 ## #### # ### # #################### # # ################### QUEENSLAN D IND UST RIA L RELATIONS COMMISSION Industri al Relations Act 1990 s. 4.26 - appl icat io n for re-opening Federated Clerks' Un ion of A us tralia (Central and South ern Queensland Branch) Union of Employees and Another AND The Australi an Workers' Un ion of Employees, Queensland an d Another AND Queensl and Cemen t Limi ted (No. R94-3 of 1989) CEME NT INDUSTRY AWARD - STATE COMMISSIONER NU TTE R 13 July 1993 Re-O pening - Principles of Re-Open i ng - Party not Notified of Hearing - Members cla im 10 be affected - Case law - Arbitrated Matter - Application for Re-Opening Granted. DEC ISION Th is is an applicat io n by the Federa ted Clerks Union of Austral ia (Ce ntral and Sou thern Queensland Branch) Un ion of Employe es and the Federa ted Clerks' Union of Austral ia, North Queensland Branch, Unio n of Emp l oyees (FCU) for a re-opening pursuant 10 s. 4. 26 of the Act of proceedin gs in case No R94-3 of 1989. The decision in that case r esul ting in a variation of the Cement Industry Award - State. I indicated at the conclusion of t he h ear ing tha t the application would be granted and a wntten decision given a soon as possible. The reasons for my decision are as stated hereunder. The facts and iss ues relied upon by the FCU were as follows:- 1. A vari at ion 10 the Cement Industry Award - State was publish ed in the Queensland Government Industrial Gazette on the 2nd day of April 1993. 2. By that variation a new schedule was added to the Cement Indust ry Award - State containing a classification structure which includes employees who fal l within the classification definitions con ta ined in t he Clerical Employees Award - State. 2A. The applicant is an industrial organizati on w hic h has members who are employed in t he cement industry. These employees are bound by the proceedings in Case No. R94-3 of 1989. Further, or in the alternative, these members of the applican t are affected or aggr ieved by the proceedings. 3. The applicant union is the proper un io n to represent employees who are classified under the Clerical Employees Award - State and is al so the proper Un ion with el igibility to represent employees w hose class ifications would fall both within the classification definitions in the Clerical Employees Award - State and the classification structure of the variation to the Cement Industry Award - Sta te of the 3rd March and who carry out clerica l and administrative functions. 4. The Australian Wo rkers' Union i s not a party to the Clerical Emp l oyees Award - State and nor does ii have the eligibility to represent clerical and admin is trative people. 5. The applicant was not given any notice of all or any of the proceedi ngs wh ich led to the making or taking by the Industri al Commission of the decision whereby the Order was made varyi ng the Cement Industry Award - State on the 3rd of Ma rch 1993. 6. The Clerical Employees Awa rd - State appeared in the Queensland Government Industrial Gazette dated 12th February 1993 and was made after lengthy and comprehensive proceedings before the Queensland Industrial Re lations Commission. This Award is the proper and appropriate award to cover clerica l and administrative empl oyees employed in the Cement Industry. 7. The applicant should have been given an opportunity to be heard and to put before the Queensland Industrial Re l at ions Commission matters directed towards excluding cleri cal an d admin is tra tive employees from the op era tion of the Cement Industry Award - State. 7A. The applicant is directly affected by the proceedings and has consequently a right to be notified of those proceedings and to be heard upon those proceedin gs . 78. T he Comm is sion ought in equity and good conscience afford the FCU the right to oppose that part of the cl aim in respect of which it is directly affected. 7C. The FC U upon a re-open ing will be ab le to present vital and re levant material in relation to the classification structure appropriate to clerical and administrative empl oyees in the cement industry which materi al was not available during the proceedmgs because of t he absence of the FCU due to a failure to notify the FCU . 8. The appropriate award to cover clerical and ad mi nistrative employees is the Clerical Employees Award - State and the Cement Industry Awa rd - State sho uld be varied accordingly. 1 he decision by t he Commission on 3 March 1993 to vary the Award to pro vide inter alia "for a competency based classificat ion structure with a core of generic skills at each level in the work st reams of production, mining, laboratory and clerica l" fo llowed advice from the The Australian Workers' Union of Employees, Queensland (AWU) that agreement had been rea ched. The rcu claims that the clerical worke rs who are now encompassed under the award were previously covered by the Clerical Employees Award - State (previously the Clerks and Switchboard Attendants' Award - State) to which t he only employee un ion party was the FCU with a preference clause in favour of the FCU in that Aw ard . It was further sta ted , and not refuted, that the FCU was not notified by the Industrial Regist ra r or advi sed by any of t he other -- 1 of 2 -- 498 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [23 July, 1993 parties of t he matter coming on for hearing. As a consequence, they were not aware of the matter coming before the Commission. A range of exhibits were tendered by t he FCU to show that they sought to obtain information from the AW U and Queensland Cement limi ted (QCLJ on certain matters but received no response on the matters raised. The FCU submitted that the resu l tan t effect has been that they were denied the opportunity of making submi ssions and stat ing their case in an area in which they ha d award coverage. The FCU referred t he Commission to a decision of Commissioner Birch under the Cotton Ginneri es, Cotton Oi l and Other Seed Oi l Ma nufacturing Emp loyees' Award - State. In t ha t case a vari at ion to the Appl ication clause was granted by consent between the employer and the AWU. The Fede rated Storemen and Packers' Un ion of Employees of Austral ia (Q u eens land Branch) did not become aware of the variation until it was gazetted. They then sough t a re-opening pursuant to s. 32 of the then Act. In his deci sion Comm iss ion Birch stated inter alia:- "The Commission is satisfi ed that the SPU can j us tifiab ly assert that it was misled or that the Registrar may have required the AWU to serve it wi th copies of the claim if it ha d been fi l ed in its amended form. The Comm iss ion is requ ir ed to act in equity and good conscience and in the ci rcumstances of this case I am sa tisfied that the SPU should be afforded the right to be heard in opposi tio n to the claim as amended. For the reasons stated the hearing and d ec ision given in Case B10 1 of 1986 on 4 March 1986 is re-opened.". The FCU claimed some membership at QCL although evidence was not called on this point. Mr Ludwig for the AWU referred the Commission to a number of decisions of this Commission and Court re lating to re- opening applications. However, t hese dec is ions essentially dealt with situations where the parties involved participated in the proceedi ngs and had an opportunity to present their submissions. The decisions generally incl uded t he fact that they omitted to present certain informat io n when they have ha d an opportunity to do so does not provide grounds for re-opening. Cases referred to included Rai lway Co ns t ru ction Workers' Award - State (125 QGIG 33 ), Teac he rs Awa rd - State (86 QG IG 611-14), Electrical Engineering Award - State ( 11 7 QGIG 345- 6), Nurses Award - Public Hospitals - State (127 QGIG 199-203) and decision of the Pres ident on appeal (126 QGIG 340-2). The cases quoted above are distinguishable from the case presently before the Commission. In the present case the FC U has not had the opportunity to be heard. It is no t a matter of being wise in hindsight. A further submission made by Mr Ludwig was that under s. 4.26(3) an application for re-opening may be made by either - "(a) the M inister; (b) a party to the proceedings to which the application rel ates; (c) an industrial organization whose members are bound by, or cla im to be affect ed or aggr ieved by, the proceedings to which the applicatio n relates; (d) He put the view that the FC U had not established through evidence that they met t he criteria above He stated that they only cl ai med to be a pa rty. Under s. 2.1 a party is defined as fol l ows:- $. 10.2 headed "Persons bound by Award " reads inter alia as follows - "An award is binding on - (c) All industrial organizations concerned with the calling or callings to which the award relates.". It is not disputed that the FCU covers a calling included in the award and they are therefore, in terms of the above, a party to the award irrespective of whether or not they were in attendance at the hearing. They were in the wide view a party to the proceedin gs but did not attend through lack of notificat io n. Even if I am wrong in that assert io n, advice was provid ed by Mr O'Brien to the effect that the FCU had members, includi ng a delega te at QCL, and this was not refuted. In terms of s. 4.26(3) the FCU can therefore claim that they have mem be rs bound by the proceedings to wh ich the applicat io n relates. This gi ves them an entitlement to seek a re-opening under s. 4.26. Mr Ludwig clai med rhat the issue should nor be one of a r e- opening as nothing vital had been shown during the re-opening application to warrant a re-opening. He stated that if t he FCU fe lt they had a cla im to vary the Award they cou ld do so by lodging an appl ication to the Commission. However, i t would in my view be qui te wrong for a party who had not been advi sed of a matter in which they have a subs tanti al interest, no t t hen be i ng able to obtain a re-openi ng of proceedings to make subm iss ions but having lo lodge a new applicati on, to rightfu lly argue what they were entitl ed to put forward in the original case had they been properly notified. I adopt the reasoning of Commissio ne r Birch in the case previously referred to in this decision. It would be unfair for the Commission not to grant the appl ication for re-open ing and Case No R94 -3 of 1989 is t he re fore re-open ed . A number of material facts listed in the application were not dealt with in this decision as it was not necessary to do so in arriving at th is decision. The matter i s list ed for hearing befo re the Comm iss ion at 10. 15 a.m. on 16 August 1993. B. J. NUTTER, Industrial Commiss io ner. Appearances: M r D. O'Brien for the Federated Clerk s' Union of Aust ral ia (Ce ntral and Southern Queensland Branch) Union of Employ ees . (FCU); Mr. J. Ludwig for T he Austral i an Workers' Union of Employees, Queensland. (AWU ); Mr C. Price for the Federated Engine Drivers' and Firemens' Association of Australasia Queensland Branch, Union of Employees; Mr W. Deakin for Queensland Cement Limited (QCL). Date of operation:- NIA Decision- Application Re-opened Released: 13 Ju ly 1993 23 July, 1993) QUEENSLAND GOVERNMENT INDUSTRIA L GAZETTE 499 l ( ' I, I -- 2 of 2 --