Federated Engine Drivers' and Firemens' Association of Australasia Queensland Branch, Union of Employees v Pacific Waste Management Pty Ltd [1993] QIRC 279 (1993) 143 QGIG 550

550 QUEENS LAND GOVERNMENT INDUS TRIAL GAZETTE (30 July. 1993 t#M#/###f#J.;l;!l;!f.':f##;l;IJhW:;\fi'#J#l#ii!##fl. /#lh':/I##IIJf#h'l;if/J;';lffl#l#f#;!/f#,',';'-f.#h!##IIN/ QUEENSLAND TNDUS1RIAL RELATIONS COMMISSION Jndustrid Re/ccions Act 1990 s. 4.26 - appl ication for re,..opening Federated Engine Drivers' and Firemens' Association of Australasia Queensland Branch, Union of Employees AND Pacific Waste Management Ply. Ltd. AND The Australian Workers' Union of Employees, Queensland (No. CA 18 of /993) PACIFJC WASTE MA.NAGEMFNT (BRISBANE LAN OFII...L) CERllFlED AGREEMENT COMMISSIONER FISHER I July 1993 Application to re-open - Jurisdiction of Commission re certified agreements under s. 4.26 - Arbitrated matter - Application granted - Application for i nterlocutory order - Ev1<!ence - Umon membership - Stay clause 2.5 (Preference) of cert ified agreement - Order granted. REASONS FOR DECISION Two matters arising from the application by the Federated Engine Drivers' and Firemens' Association of Australasia Queens land Branch, Union of Emp loyees (FEDFA) to re-open CAl8 of 1993 have been determined. The outcomes were made known to the parties but were not accompanied by reasons. The l)arties were advised that written reasons for the two dec1s1ons wou ld follow . The decision now iss ued encompasses the reasons for each decision. The background to the two deci sions is common . On 12 May 1993, the Metal Trades Industry Association. of Australia, Queensl.~nd Branch, Union of Employers (MilA), actmg on behalf of Pacific Waste Management Pty Ltd, lodged a certified agreement made between the named company and ll1e Australian Workers' Union of Emp loyees Queensland (A WU) in respect of the Brisbane Landfill. The agreement was list<?<l before me on ?6 Ma)'. 1993 ~ on the submissions of the parties, the Commission md1cated that 11 beheved the pro vis ions of s. 10.3E of the lndustrid Relations Act 19:JO had been sat isfi ed The Commission then, proceeded to certify the agreement. The agreement was certi fied as CA1 8 of 1993. By its application dated 7 June 1993, the FEDFA complains of the decision to certify .the agreement ~d seeks. to have the matt~r _re• opened in order that 1t may put certam matenal to the Commission with the effect the agreement be vaned or rescmded. The sections of the Act relied upon by the FEDFA are s.. 4.26 Procedures for Re- opening and s. 10. I3 Powers of Comm1ss1on re agreements. The application for re-opening was listed fo r hearing on 29 June 1993. Jurisdiction to re-open Certified Agreemenls At the commencement of the re-o pening proceedin~, Mr Ludwig, appearing fo r the AWU (one of the respondents) raised a threshold point that under Divis ion IA - Certified Agreements of the Ac½ the Commission did not ~ve the power to entertain an applicatJOn for re,..opemng of a cert1hed agreement. Essentially Mr Ludwig's argwnent wa~ that Division IA_ - Certified Agreements provided a codified set of pi:ov1s1ons which spec1ficaJ ly_pertam w certified agreements and the Comm1ss1on's power m relation thereto. Mr Ludwig argued that the general powers of the . Commission provided by other secti ons of the Act are not available m re lat ion 10 cert ified agreements. Mr Ludwig pointed out the limitat ions on the Commission to act in relation to certified agreements, for example, under s. I0.3A(3) the Commission is expressly precluded . from utilising the provisions of s. 4.27 Reference to a Full Bench m the pe1formance of the Commission's f unctions. Reference was also made to s. 10.3H which sets out the Commission's powers in relation to preventing and settling disputes between employers and employees covered by the l I 30 July, 1993] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 551 agreement. Mr Ludwig al so took the Commission to s. I0.3L(2) and (3) which set out the Commission's powers in relat ion to variat ions of a certified agreement and the exercise of the arbitral function. ll1e Commi ssion W<l.5 also referred to s. 10.3M which sets out the way in which the certified agreement, having been made could be examined or rev iewed. In swmnary Mr Ludwig argued that to re-open the cert ified agreement would be an exercise of an arbitrat ion power from which the Commission is p revented from doing. The Commiss ion would therefore be embarkrng on a "useless exerci se" and as a consequence the Uni on submitted that the application for re-opening shou ld be struck out or altemativelv, the Commission shou ld refrain fro m hearing it. ' Mr Lu dwi g continued his s ubmissions by putting certain infonnation to tfi e Commission which re lated to the making of the certified agreement. Mr Be lfield, appearing for the second respondent, (the MTIA on behalf of Pacific Waste Management Pty. Ltd.) , supported th e subm1ss1ons made by the AWU. In reply, Mr Wilson, appearing for the applicant Union, submitted that s. 4.26 gives the Commission a discretionary power to recons ider a decis ion. It was l\ttr Wilson's view that the Commission's decision to cert ify t11e agreement made between the Company and the AWU was not made on the merits. Mr Wilson's Union, through its app licat ion, seeks the opportW1ity to pu t mate rial to the Comm1 ssion to demonstrate this. Mi Wilson contended that in acting under s. 4.26 the Commiss ion would be exercising a procedw--dl power and not ai1 arbitral power as suggested by the AWlJ Mr Wilson also refuted the arguments that the codifi ed provisions relating to certified agreements in Divis ion IA of the Act prevented the Co1mnission from exercis ing other powers provided elsewhere .in the Act. He ari,'lled that whil~t legislators had specifically excluded the Commission from access to s. 4.27, the Commission is not spec ificall y precluded from operating under any of the other general powers or functions that are provided in the Act. tv1r Wi lson submiued that the decision of the leg1slators to act in this way showed an intent ion that other sect ions of the principal Act are avai lable. The above summary does not detail all of the arguments raised by the parties, however, in my view it cove rs the major points. Before proceeding to gi ve my decision, J sho uld record that all of the arguments raised were considered by me . DIVISION IA - CERTIFIED AGREEMENTS, v,·as included in the lndustnd Relations Amendment Act - Act No. 62 of 1992. 1t wa~ assented to on 7 December 1992 . Divis ion IA sets out, among,1 other things: the objects of the Division; that certified agreements are to be made about industrial matters; that the Commiss ion must certify an agreement if it satisfied certain criteria are met; the circumstances under which the Commission may refuse to cert ify an agreement; other optio ns available to the Commi ssion: the operation of cert ified agreements ; the effect of certified agrtX.-wents; and that a Full Bench 1nay vary or temlinate a certified agreement. In effect the Division deal s with the inten tion of certified agreements, their subject matter and the role of t11e Comm ission in ceni fving, varying, reviewing the operation of or tenninating a certified agreement. Unde r the Certified Agreements Division of the Act the Commiss ion has been express ly prec luded from exercising certain of tJ1e functions it may exercise m relation to awards or industrial agreements, e.g. arbitration powers to vary contents, reference of cenain matters to a Full Bendt The Conunission is also limited in respect of its public interest function. In my view however, the enactment of Division IA - Certified Agreements has not served to limit the exercise of the Commission's powers under s. 4.26 Procedures for re-opening. Certain ly_ there has been no specific limitati on or access to thi s. section by' the legis)ators in relation to s. 4.26 . . S. 4.26{1) prov1~es that the 0>mrm ss1on may re•open any f,;OCeedmgs (my emphas rs) on application as later pre!;enbed . 'Proceedings" as provi ded in this section have not been limited by the exclusion of cert ified agreements . AJthough the tenn "proceeding" is not defined by the Jndust,ial Relations Act 1990, there is no apparent di spute between the parti es that the hearing which led to my origi nal decision was a "proceeding" that falls w1 thrn the comprehension of s. 4.26. Therefore, I believe s. 4.26 is open to the Commission to review a deci sion which led to the certifying of a certified agreement provided it can be demonstrated that s ueli re-openi ng is warranted. Whilst the Commission 's public interest function may have been curtailed by the introduction of Division IA, I would not believe it to be sow1d public policy if the Commission was prevented from re viewing a decision if it can be shown that the decision was not sow1dly based. The Commiss ion has not yet heard submiss ions on the merits of re-opening its decision. I do not be lieve there is any legis lative impediment from so doing. S. 4.26{2) prescribes the types of actions which may be taken by th e Commission if it decides to re-open any proceedings. As already stated, the Commissi on has not yet heard any submissions to determine whether the proceedings should be re-opened. However, it is worth commenting that in the range of act ions prescribed by s. 4.26(2) "the Commiss ion may rescind or vary any decision . ... and in the re-opened proceedings ma,r make such deci sion . . . . there in as the Commiss ion considers just . 1lie 1992 Amendment Act which introduced provisions relating to certified agreements al so amended a range of other sections contained in the principal Act. Included in these was an amendment to the definition of the tenn "decision" in s. 2.1 Meaning of TemlS to include "certified" s uch that the definition of "dec ision" now reads - " 'Decision' means a decision of the Industrial Court Industrial Commission, an Industrial Maiz istrate, or the Industrial Registrar and includes any award, dec1aration, detem1 ination, di rection , judgipent, order or ruling and also any agreement approved, certified, or varied for the time being, by the Commission and includes any variation of such an agreement;". Whilst it has yet to be seen whether tliere is an inherent contradiction which arises as a result of the interplay of these provisions with Di vision IA, this amended defin ition, in my view, bo lsters the conclusion which I have reached . Finally, I wou ld add that the exerc ise of discretion under s. 4.26, should it be s hown to be warranted, would in mi; view, be an exercise of a procedural power a~ s uggested by Mr \\ ilson and not an exercise of arbitral power as submitted by Mr Ludwig. lmerlocuto,y Order For reasons that are known to the parties, the substantive hearing of the application to re-open have been adj ourned t0 22 Jul y 1993. As a result of the necessity to adjoum those proceedings and the failure of the two respondents to accept an undertaking from the FEDFA that the membership of the relevant industri al organisation be maintained and that all parties abide by the decision in respect of the re-o peni ng proceedings , the FEDFA pressed an appl icatron for an interlocutory order. lbe situation, as I understand it, is that there are a number - approximately ten ( 10) or eleven ( 11) employees-:-- of Pacific Waste Management Pty. Ltd. who are employed at the Bn sbane Lmdfill and who are members of the FEDFA Of the number in guestion all but 1'-vo are coincidentally members of the AWU. 1be FEDFA seeks an order such that the two employees who are onlv members of the FED FA and not also members of the AWU, not be required to join the AWU until the res wnption of the proceedings to hear the su bstantive application. The FEDFA have expressed concern that in the ligh t of events wh.ich they allege to have occun-ed in recent weeks, .these two members mieht be requi red to join the AWU or if they do not, their fi.rture empToyment might be jeopardised . ·n1ev also say that if these last two members are required to join the AWO prior to the resumption of proceedings on 22nd July 1993, then their substantive case would be significantly affected. The order is directed towards the conduct orthe parties to the proceedi ngs not to t11e proceedings per se . In his evidence, Mr Price related certain incidents wh.ich had been told to him by his members. These incidents related to al leged comments by a particular AWU Organis er that the cont inued employment of the rEDFA members could be affected if membership of the A WU was not taken out. Simi lar comments are alleged to have been made by certain management personnel of the Company . Mr Price characterised these comments as 'victimisation". • Both respondents opposed the making of the order. The MrIA rejected the Company acted as alleged and whilst the AWU indicated no knowledge of die alle&ed actions of thei r Organiser, apologised if such eve nts took place. The Union also und ertook not to persuade FEDFA members to res ign their membership of that industrial organisation . TI1is undertaking did not satisfy the requirements of the FEDFA The AWU argued that the order sought by the FEDFA affects the operation of the certified agreement. It was d1eir view that as the eflect of the order would be the suspension or staying of provision of ! I -- 1 of 2 -- 552 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [30 July, 1993 the agreement, then any such provision shoul d be included as u term of the agreement. This would mean that the Commission would be required to ,-arv the ~I \\hich. under the relevant sections of the Act relating to certified agreements, the Comm1!>S1on is pre,ented from doing. I rtject the armimeots that an interlocutory order ,,ould ''al) the terms of the certilicd agreement Such an order "ould, 1f granted. serve to regu late the conduct of the parties to the proceeding~ Ml that the subjec t matter of the substantive appl ication is protected . The AWL also put arguments in respect of orders which ~ to compe l compliance or restrain a breach. These arguments seem to go more to orders sought under s. 4.23 and as the orders are not bei ng sought pursuant to that section. I do not believed it is necessary to address the issues raised excepc to indicale that I do 11()( oon~ider the issues as rele\'ant to the ma1ter now before the Commssion. Refere nce was ulso made to s. 13. 108 of the /\cl as being the more appropri ate section of the Act by "hich the FEDFA could brill2 an action in the C'ent that the l\\O members of the 1-1 DFA conccmoo are prejudiced in their employment as a result of their membership of the FEDF/\. Such sect ion of the Act onl y comes in to place where union membership is not a condition of the contract of empl oyment In this matter preference is a clear term of the certified agreeinent and although the AW has alluded to a "common la" tmde:rstandinl!." between the parties to the agreement, I believe that clause 2.5 of tfie certi fi ed agreement would be ~ullicient to negate w1 action under s 13 . 108 of the Act. In the event I am ,,Ton& m my interpretation of s. 13. 108 I accept the argumetll of the T-EDFA that given the nature of the substantive proceedi ngs before me, it would be inappropriate and wisatisfactory for one of the ixuties lo pursue seporate proceedings when the same result could be achieved b} an interfocut~ order The other issue raised by the AWU was the question of evidence Mr Lud\\ig queried the wei l!tlt \~hich should be attributed tO ~) e...-idencc Ill ~ ings of th1s nature Neither of the respondents presented evidence 10 contradict Mr Pncc . Thu:, \\hilst hi s evid ence contains elemenl5 of hearsay it remains uncontested. In J)l'oceedin_gs dealing with an inter locutory order I believe the Coomiss1on has the ~ to attribute some ,,eil!tlt m the t:\ 1dence put by Mr Price in reaching 1b conclusion Whetfi-r such evidence is given the same weight in substanttve proceedings 1s subject to debate. Mr Belfield supported the submissions made b) Mr Ludwig for the A\\1J and in addition, contended that to grant the order sought by the FEDFA \,ould be to pre-empt the su~tantl\e heanng in relation 10 the re-opening. The Commission has considered the material put b" the parties. The situation where emplO)ecs have simply refu:,ed to honour preference provisions of an industrial instrument and the one with which the Commi ssio n is now confronted can be distingu ished. In the present matter. a uniort not party to the industrial instrument but \\hich h:b members employed b-i that emplO)er. wishes lo put a case to the Commission to have tfie dec1s1on appro...-me. the mdustrial instrument reviewed . This is an action which in my view is contemplated by the legislati on and in this matter the FEDfA ~hould be allo'-"OO to put its case \\1thout an) poss1bilil) of the employment of its members concerned bcmg affected It should also be able to put its case without the prospect of th<! subject matter eviiporatin.!? during the period until the case can be heard. Whether the HmFAs substantive case ultimate)) s ucceeds remains another matter for determinauon. I note the undertaking given by the AWU that it would not seek that employees resign their membership of the FEDFA and aclcno"ledge the ab1hl) of unions to see!. to recnut members \\lthin their regiStered callings . Dunng the course of proceedings the Mf1A expressed the view lliat the Company "reserves the right that should the persons continue to fail to take out membersh ip with the AWU then it mUSt consider those other emplO)oes who ha,e so far taken out membership. ". I am of the viC\\ thal these comments pose a threat to the contmued employment of the two emplo}ees concerned whilst an applicati on to re-open proceedings is properly before the Commission for consideration. In these circumstances I consider the Commission should 11()( allO\, the ~IO)ees concemcd to be left in a situation \\here their employment 1s at risk \\ hen, for particular reasons, the proceedings have to be adjoumed for a penod of \\CCks. Jn the lil!tlt of the comments e,prcssed b) the MflA the C\1dence of ~ Pncc. the p,..>nod of the adjournment and to protect the subject matter of the apphcauon. I am satisfied that a pnma f o::1e case has been estab lished to warrant the gran tin g of an order in the follo,~ing lemlS . In making such order tile Commission reli c.~ upon sections 4 13. 8.2. 8.6(e) and 822(1Xa) of the Act. Order Without prejudice to the Cormnis.s1on's detennmatioo of the application for re-opcnmg currently before 11. having heard evtdence on oath on behalf of the FEDfA and for other reasons already outlined. the Commission directs that from I Jul y 1993, on an mterim basis pending the res~on of the further hearing of this matter on 22oo Jui) 1993. each of the respondents not seek to act or act upon clause 2.5 of the ccnified agreement in respect of any employee of Pacific Waste Management l>ty Ltd who was a 1m:mber of the FEDl'A at the time of their appoinunenl and \\ho ha5 not yet JOt ned the AWU. I reserve leave to either party to appl y on 48 hour~ notice. I order according)} G K.1-lSHER. Commissioner. Appecrances:- Mr J. Lud\\lg foc The Australian Woo.crs' Cnion of fmplO)-ees. Queensland Mr M 13(:lfield for the Mctnl Trades Industry Association of Australia. Queensland Branch. Union of Employee!. on behalf of P-JC1fic Wa.-;te Managl..ment Pt} I td Mr G. Wil so n and Mr C. Pri ce for the Federated Engine Driver~· and Firemen's Association of Australasia Quocnsland Branch. Union of Emplo)ecs Operati ve Date : 1 July 1993 . Reasons For Deci sion - Pacific Waste Management (13risoone Landfill) Certified Agreement Released : I July 1993 #~lltl#J:IJ#;tMJll#ltWl:WJl#f:ll/ /!;1;f;ff#Jf:'U:':';t;t:\Wlli'Jl#hW#:tJ#IU/:WN;l;/)hiN.flfUJUfHN#:Wt#tt 30 July, 1993 ] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 55 3 f -- 2 of 2 --