Federated Ironworks Association of Australia, Queensland Branch, Union of Employees v Australian Railways Union of Employees, Queensland Branch [1991] ICQ 1 (1991) 136 QGIG 437

436 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [ 16 March, 199 1 16 Ma rch, 1991] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE QUEENSLAND INDUSTRIAL COURT Industrial Re/at ions Act I 990 s. 9.2(2) - appeal from decision of Industrial Commission Federated lronworkers Association of Australia (Queensland Branch) Union of Employees (No. C34 of 1990) The Association of Architects, Engineers, Surveyors and Drau~tsmen of Australia, Queensland, Uruon of Employees (No. C35 of 1990) AND Australian Railwa ys Union of Employees, Queensland Branch 437 J USTICE MOYNIHAN, PRESIDENT 1 March 1991 Appeal - Injunction - s. 4.23, 4.25 , I _3.2(3)(e) _of the Industrial Relations Act 1990 - Umon Membership - Ratlway - Callings - List of Callings - Error of Law - Public Interest - Com- mission 10 uphold the application - Returned to Commission. JUDGMENT These appeals may be disposed of together since they were heard together and raise substantially the same issue. The appeals arise out _of app_lication bro uiht before the Industrial Commission for an tnJuncuon or duecuon pursuant to s. 4.23 of the Industrial Relations Act 1990 ("the Act") designed to prevent the respondent association from enrolling and keeping enrolled employees engaged in specified callings in the Queensland railway industry. When the matters came on before the Commission the appellant's advocate raised as a preliminary point, as it was put, that the material filed before the Commission failed to disclose a cause of action sufficient to define the jurisdiction of the Commission to grant the reli ef sought. The Commission heard argument in respect of the matter thus raised and at the conclusion of that argument stat ed that it would rule on the preliminary poin t. The Commission subsequently published a decision which extensively canvassed the arguments in respect of that point. The decision then went on to state that all submissions presented had been taken into consid- eration and :- "The Commission is of the view that the issues raised by the respondents would not cause the Commission to dis- continue to proceed further with the hearing of the appli- cations nor did the respondents make such a request. It would appear that the AR U has filed the applications with a view to obtaining a remedy regarding a problem it perceives and that it would be in the public interest to continue with the hearing. The applicant clearly wants to proceed in accordance with the applications, as filed, and the Commission believes that as such the applications should be decided on the relative merits of the argu ments presented.". T he grounds of appeal are to the effect that the Industrial Com- mission dismissed the appellant's preliminary point without pro- viding reasons. They were also to the effect that the Commiss io n had wrongll re lied on the test of public interest to determine the existence o jurisdiction and had misconstrued ss . 4.23, 4.25 and l 3.2(3)(e) of the Act. Other grounds of appeal complain that the Industrial Commission had fai l ed to indicate which Awards and Industrial Agreements or sections of the Act had eith er not been complied with or was be ing breached and that in doing so act ed without jurisdiction and that in proposing to continue with the hearing of the application in those circumstances it was acting beyond its jurisdiction. It may be taken as now well established that for a tribunal such as the Industrial Commission to fail to give reasons for a decision in circumstances such as those applying in the present case co n- stitutes an error of law; see for example King Australia Pt y. Ltd. v. Cardwell Shire Council (1985) 2 Qd. R. 18 2, Pe11i11 v. Duncley (1971) I N.S.W.L.R. 376 to which my auention was directed in argument. See also Palmer v. Clark ( 1989-90) 19 N.S .W.L.R. 158 . -- 1 of 2 -- 438 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [16 March, 1991 I am not persuaded that in the present case the Industrial Com- mission has failed to give reasons for its decision although I accept that to some they might not emerge particularly clearly. It seems to me clear enough however that the Commission refused the preliminary application for reasons incl uding that the respondents to the application had not asked it to "discontinue to proceed further with the hearing of the applications"; that the applicants wished to proceed and that it would be in the public interest to continue with the hearing and to decide the applications "on the relative merits of the arguments presented" at the end of the full hearing. The difficulty with the applications seems to me to be elsewhere than in the absence of reasons and indeed seems to emerge from what the Commission said in determining to proceed with the matters. Th e Industrial Commission's power under s. 4.23(1) is postulated on the order made being:- "just and necessary . .. to compel compliance with an award, industrial agreement, or this Act or to restrain a breach or continuance of a breach of an award, industrial agreement, or this Act". The appellants are I think right to say that the power given under the section is not founded on any consideration of public interest although that may well bear on the ultimate exercise of the power in a particular way. In other words the power to grant the relief sought is a statutory one given to a statutory tribunal. The occasion for Jls exercise does not then arise unle ss it is demonstrated that the party against whom the relief is sought is not complying wi th an Award, Industrial Agreement or the Act or is acting in breach of it. I interpolate that it is I think confusing to introduce the notion of cause of action into a consideration of whether there is a foundation for t he exercise of power by a tribunal such as the Commission. The original applications are expressed to rely on breach of s. l 3.2(3)(e) of the Act. They also referred to s. 4.13 which is the provisions conferring general jurisdiction on the Commission. It is not clear from the documents whether any particular aspects of that provision is relied on and it does not seem that reference to that section adds anything. Certainly there is no suggestion that any other section or any award or agreement is relied on. The originating applications go on to state that the responden t is in breach of s. I 3.2(3)(e) by accepting into its membership or keeping as members persons following certain specified callings "such callings not being covered by its registered eli~bility rules or list of callings". Clearly enough then the applications are for the exercise of the Commission's power under s. 4.23 founded on breach of s. l 3.3(2Xe). Section I 3.3(2)(e) is to the effect that on an application for regis- tration as an Industrial Organization the Commission may approve registration if, among other things, the organization's rules provide as required by the Act and are certified by the certifying barrister. The point which ultimately emerges from the appellant's prelim- inary point is whether accepting or maintaining membership in callings not covered by the registered rules or list of callings is capable of constituting a breach of s. I 3. 2(3 )(e). I thi nk it is well taken. Th e only breaches contemplated by the section (if that is the right way to express it in the circumstances) is the Industrial Commission's approval of registration of an association or an Industrial Organization without the association's rules making the provisions required by the Act to be made by such rules or without the certificate of the certifying barrister. Put shortl y the activities relied on as constituting a breach of the Act so as to found the power given by s. 4.23, so far as they emerge from the originating material, are incapab le of constituting a breach of the section said to have been breached. The act ivities can thus not provide a basis for the relief sought. In the circumstances it seems to me that the appropriate course was for the Commission to uphold the application. The matter should be returned to the Commission to be dealt with accordingly. M.P. MOYNIHAN, President. Appea rances:- Mr P. Cook with him Mr I. Buckley for the Federated Ironworkers Association of Australia (Queensland Branch) Union of Employees and The Associati on of Architects, Engineers, Surveyors and Draughtsmen of Australia, Queensland, Un ion of Employees. Mr P. Dunne for the Australian Railways Un ion of Employees, Queensland Branch. Operative Date: N/A Appeal - AR U -v- FIA and AAESDA • 16 March, 1991] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 439 -- 2 of 2 --