Australian Social Welfare Union of Employees (Qld) v The Australian Workers' Union of Employees (Qld); The Queensland Aids Council Inc [1993] ICQ 7 (1993) 143 QGIG 247

246 QUEENSLAND GOVERNMENT IND US TRIAL GAZETTE [1 8 June, 1993 18 June, 1993} i . QUEENSLAND GOVERNMENT INDUSTRIA L GAZETTE 247 ###################################### ################### QUEENSLAND INDUSTRIAL CO URT Ind11stnal Relations Act 1990 s. 9.2(2) - appeal from decision of industrial commission Australian Social Welfare Union of Employees (Qld) AND The Australian Workers' Union of Employees, Queensland AND 11,e Queensland Aids Counci l Inc {N o. C 45 of 1992) JUSTICE MOYNIHAN. PRES IDENT 9 June 1993 Appeal - Decisi on of Industria l Comm ission Jurisd ict ion - Eligibility for Membership - Demarcation Disputes - Appeal Dismissed. JUDGMENT 111is is an appeal in respect of two decisions of a Full Bench of the Indust ri al Relations Commission. The first decision complained of is that the Commission had jurisdiction to hear a particular appl ication. Secondly, it is complained that the Commission erred in refusing an application pursuant to s. 8.2(1Xb) of the Ind ustrial Relations A et I 990 (the Act) to refrain from hearing the same matter. The circumstances giving rise to the appeals are as follows: The Respondent The Australian Workers' Union of Employees, Queensland (the A. W.U .) had unsuccessfully sought approval of an agreement with the Queensland Aids Council Incorporated in respect of its employees' tenns and conditions of employment. The application was unsuccessful because the employees were not eligible for membership of the A.W .U. 1l1e A.W.U. sought to rectify the position by applying. pursuant to s. 4.25(2XbXc) of the Act, for -- 1 of 2 -- 248 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE (18 June, 1993 orders to the effect that it had the right to represent, for the purposes of the Act, the Industrial interests of Aids Council of Em ployees and that the Australian Social Welfare Union of Employees (Q ld) (A.S.W.U.) did not. The powers contained in s. 4.25(2) are expressed to be for the purpose of dealing with an industrial matter "that relates to a demarcation dispute". The appellant's point before the Full Bench was that the proceedings before it did not relate to a demarcation dispute. The Full Bench did not accept the submission that there was no jurisdiction. At the time at which the Full Bench dealt with the matter "demarcation dispute" was defined to mean: "(a) a dispute arising between 2 or more industrial organizations, or within an industrial organization, as to the rights, status or functions of members of the industrial organizations or industrial organization in relation to the employment of those members; or (b) a dispute arising between employers and employees, or between members of different industrial organizations. as to the demarcation of functions of employees or classes of employees:". By the time th e matter came to hearing on appeal the definition of demarcation dispute had been amended and new sections 4.25 and 4. 25A dealing with demarcation disputes had been inserted. The definition of demarcation dispute was expanded from th at set out to include: "(c) a dispute about the representation under this Act of the industrial interests of employees by an industrial organisation of employees.". There can be little doubt that the dispute in issue before the Full Bench satisfied that definition. Section 4.25 and 4.25A respectively make provision in respect of the exercise of powers by the Commission in dealing with demarcation disputes and confer powers to deal with organisational coverage funding dealing with the alteration of roles. An appeal to this court is by way of re-hearing on the record with power in the court to hear fresh or additional evidence if in its op inion it is necessary or desirable to do so to effectively dispose of the appeal; s. 9.9 of the Act. The c.onsequence of such a provision is that on appeal the rights of the parties fall to be detennined by reference to the circumstances and the law as they ex ist at the time in which the appeal is heard and the Appellate Court is to give such judgment as ought to be given if the case at that time came be fore the court of first instance; Builders Licensing Board -v- Sperway Co nstmc11 o ns (Syd) Pry Ltd & Anor (1976) 135 C.L.R. 6)6 per Mason J (with whom Barwick CJ and Stephen J agreed) and (Semble) per Murphy J at 630, Re Boothroyd 1986 l Qd R 167 at 168/9 and Sto ne-To/cher -v- George Weston Foods limited (1993) 143 QGIG 92 . TI1ose being the considerations this case falls to be disposed of on the basis that the Full Bench has jurisdiction to deal with the matter. I tum now to th e consideration of th e refusal of the app lication pursuant to s. 8.2(l)(b) of the Act. That provides:- "(]) Subject to this Act, in ru1y industrial cause the Industrial Court or Industrial Commission - (b) may dismiss th e cause, or refrain from hearing, further hearing, or detennining the cause, if it appears to the Court or Commission that the cause is trivial or that, in the public interest, further proceedings by the Court or Commission are not necessary or desirable:". In respect of this aspect of the appeal the following considerati ons are material: On I May, 1992 a deputy president of th e Australian Industrial Relati ons Commission found that a demarcation dispute existed between the A.S.W.U. and the A.W.U. (as a Federal branch) and dismissed an application by the A.W.U. pursuant to s. l 11 of the Industrial Relations A Cl I 988. On 22 September the Australian Industrial Relations Commission dismissed 311 application by the A.S. W.U. for an order pursuant to s. 128 of the Jndustnal Re/aJions Act 1988 to restrain the A.W.1.1. On 16 November leave to appeal against the decision of I May dismissing the A.W.lJ.'s application pursuant to s. 111 of th e lndustnal Relattons A et 1988 was refused, but two days later leave was granted to appeal against the Australian Commission's finding of a dispute. When the appellant's application pursuant to s. 8.2 was made, it was submitted that the same arguments would be advanced by the A.S.W. U. in the proceedings before the Queensland Full Bench as would be advanced in the Federal Tribunal and the outcome there might make the proceedings before the Full Bench unnecessary. At the time of the proceedings before the Queensland Full Bench the reasons for the dismissal before the Australian Industrial Relations Commission had not been published. The Commission, however, had access to the 1ranscript of the proceedings on the appeal and the possibility of different outcomes was adverted to. The proceedings before the Full Bench cannot be characterised as trivial. 111e Fu ll Bench expressed itself as not being satisfied that the considerations canvassed were of suflicient strength to justify adjourning or refraining from further hearing the matter and that the decision of the Full Bench of the Fcderal Tribunal gave weight to that view. I do not think that th e Full Bench of the Commiss ion erred in having regard to this . It was criticised for giving effect to the findings which it was said were no t based on evidence before it. That seems to me to misapprehend the use which the Full Bench made of the fact of the Federal decision . I do not think that the Full Bench otherwise erred in respect of the decision. It was open to the Full Bench to conc lude that it had not been established that further proceedings were not necessary or desirable. The appellant's complaint really seems to be that it did not give to the considerations I have identified above the weight for which the appellant contended. It was also submitted that the Commission failed to advert to all the criteria set out in s. 8.2(1 )(b ). The relevant criteria are that of triv iality, pub l ic interest and necessity or desirability. I do not think it was seriously contended. nor that it could be, that the cause was trivial. The Commission in my view seems to have considered all the considerations in respect of the public interest which were urged on it. and none in addition have been identified. The appeal is therefore dismissed . Dated this ninth day or June. 1993. M.P. MOYNIHAN. President. Appearances :- Ms C.E. llolmes (i nstructed by Messrs Reidy & Tonk.in) fo r the Australian Social Welfare Union of Em pl oyees (Qld). Mr J. Batch (instructed by Messrs Sciacca & Associates) for The Australian Workers' Union of Employees, Queensland. Mr P. Garske (of the Queensland Confederalion of Industry Limited, Union of Employers) for the Queensland Aids Council Incorporated. Operative Date: NI A Judgment - Appeal - ASWU -v- A WU and Queensland Aids Council Inc Released: 9 June 1993 ###11############1/####lt#####I/############################# \ l 18 June, 1993] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 249 -- 2 of 2 --