Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees & anor v The Australian Workers’ Union of Employees, Queensland (First Respondent) & anor [2004] QIRC 93 (2004) 176 QGIG 104

104 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 4 June 2004 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 342 – leave to appeal against decision of industrial commission Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees (Appellant) AND Queensland Council of Unions (Appellant) AND The Australian Workers’ Union of Employees, Queensland (First Respondent) AND Jupiter’s Ltd t/a Gold Coast Convention and Exhibition Centre (Second Respondent) (Case Nos. B63, B64, B75 and B76 of 2004) GOLD COAST CONVENTION AND EXHIBITION CERTIFIED AGREEMENT 2003 PRESIDENT HALL COMMISSIONER FISHER 25 May 2004 Appeal against decision of industrial commission – Industrial Relations Act 1999 s. 342 – Certified agreement – Section 141(1) – Section 142 – Acts Interpretation Act 1954 s. 35C – Eligibility of an employee organisation to represent a group of employees – Case Law – Industrial Relations Act 1990 s. 45(1) – Section 45 Order Full Bench 28 February 1996 – Demarcation AWU/ALHMWU – Order Preamble – Section 118A Counterpart Order 22 May 1995 – History s. 45 – Workplace Relations Act 1997 — Commissioner sitting alone certifies agreement – Certification opposed – Organisations permitted to be heard s. 155 – Leave to appeal s. 342 – Matters heard together by consent – Right to represent the industrial interests of employees engaged in catering – Contract catering – Catering found to be reference to the business or undertaking of the employer – Section 141(1) – Leave to appeal not granted – Gold Coast Convention Centre – Designated Award Hospitality Industry – Restaurant, Catering and Allied Establishments Award – South-Eastern Division 2002 – Industrial Relations Regulation 2000 s. 9 – Current award Application clause differs from award predecessor application at time of demarcation agreement and s. 45 Order – Award Review process – Appeal at s. 342 is appeal by way of rehearing – Section 348(1) – Full Bench – No errors of law – Exercise of discretion – Case Law – Leave to appeal refused in all applications. DECISION By s. 141(1) of the Industrial Relations Act 1999 a certified agreement may be made about the relationship between an employer and a group of employees (whether all employees, or a category of employees) of the employer. The phrase “group of employees” is defined to include (materially) “employees proposed to be employed in a new business.”. Section 142 is headed “Who may make certified agreements”. The heading is part of the section, Acts Interpretation Act 1954, s. 35 C. The substantive part of the section provides: “A certified agreement may be made between – (a) on the one hand, the employer; and (b) on the other hand – (i) 1 or more employee organisations who represent, or are entitled to represent, any employees who are, or are eligible to be, members of the organisation; or (ii) the employees at the time the agreement is made.”. Prima facie one would think that the “employees” referred to at s. 142(b)(i) are “the group of employees” about whose relationship with their employer the agreement is made. Certainly no party has advanced a contrary contention. The starting point in determining whether an employee organisation represents or is eligible to represent the group of employees to whose relationship with their employer the certified agreement relates is the eligibility rule of the organisation. In MIM Holdings Limited v. Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (2000) 164 QGIG 316 at 319 (the MIM Case) the matter was summarised thus: “It has always been the case that upon registration an employee organisation is incorporated, Industrial Arbitration Act 1916, s. 37(1), the Industrial Conciliation and Arbitration Act, 1932, s. 41, Industrial Conciliation and Arbitration Act 1961, s. 69(1), Industrial Relations Act 1990, s. 334 Industrial Relations Act 1997, s. 18 and Industrial Relations Act 1999, s. 423. Upon incorporation an employee organisation acquires full corporate personality, compare Williams v. Hursey (1959) 103 CLR 30 at 52 per Fullagar J. with whom Dixon C.J., Kitto and Menzies JJ. agreed. The capacity of an employee organisation is an entirely different matter. It is incontestable that the Commonwealth legislation providing for the registration and incorporation of employee organisations are in pari materia. The capacity of corporations brought into existence by registration and incorporation under the Commonwealth legislation was summarised in the Queen v. Williams and Others; Ex parte the Australian Building Constructions Employees’ and Builders Labourers’ Federation (1982) 153 CLR 402 at 408 as follows: – ‘The eligibility provisions in the rules of a registered organisation of employees serve the function of defining the general area or areas of industry or industrial pursuit from which members can legitimately be drawn and with which the organisation can legitimately be concerned (see Reg. v. Dunlop Rubber Australia Ltd.; Ex parte Federated Miscellaneous Workers’ Union of Australia (1957) 97 CLR 71 at 87; Reg v. Clarkson; Ex parte Victorian Employers Federation (1973) 131 CLR 100 at 111 and 113; Co-operative Bulk Handling Ltd. v. Waterside Workers’ Federation of Australia (1980) 49 FLR 355 at 357 to 8). Since such eligibility provisions constitute a reference point for courts, commissions, employers, employees and other organisations in determining or ascertaining an organisation’s proper coverage and field of operation, they must be construed objectively (see Reg. v. Aird; Ex parte Australian Workers’ Union (1973) 129 CLR 654 at 659; Reg. v. Cohen; Ex parte Motor Accidents Insurance Board (1979) 141 CLR 577 at 580 and 587.’. (emphasis added) -- 1 of 11 -- 4 June 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 105 In The Australian Workers’ Union of Employees, Queensland and The Electrical Trades Union of Employees of Australia, Queensland Branch and Others (1995) 150 QGIG 1123 at 1124, I held the Commonwealth authorities to be applicable to the Queensland provisions about the registration and incorporation of employee organisations. Nothing which has been put in these proceedings has caused me to doubt that the approach was correct. It is true that there are myriad provisions providing for proceedings to be instituted by an ‘organisation’. That is not surprising. An employee organisation registered and incorporated under the Act is entitled to sue and be sued in its own name. Doubtless the legislature might have endowed an employee organisation registered and incorporated under the Act with all the legal capacity and powers of a natural person. The Incorporations Law, s. 124, for example, confers that capacity on companies under that Act. But after all this time and with the encrustation of case law, one might have expected express words.”. However, as the MIM Case, ibid, shows, the starting point is not always the end point. Section 45 of the Industrial Relations Act 1990 provided: “45(1)[Orders of Full Bench] A Full Bench may, on the application of an industrial organisation, an employer or the Minister, make the following orders – (a) an order that an industrial organisation of employees is to have the right, to the exclusion of another industrial organisation or other industrial organisations, to represent under this Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation; (b) an order than an industrial organisation of employees that does not have the right to represent under this Act the industrial interests of a particular class or group of employees is to have that right; (c) an order that an industrial organisation of employees is not to have the right to represent under this Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation.”. (emphasis added) The impact of orders under s. 45 upon the issue of whether an employee organisation may make a particular certified agreement was dealt with in the MIM Case, op. cit., as follows (at 320): “Although the formatting is different, if the definition of ‘right to represent’ is read into the subsequent provisions, s. 293* of the Workplace Relations Act 1997 and s. 279* of the Industrial Relations Act 1999 are the same. The provisions are not concerned with the right to represent employees or to represent members but with the right to represent the industrial interests of a particular class or group of employees. What is granted or taken away by an order under those sections in the capacity to represent employee interests referred to in the Queen v. Williams and Others; Ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 153 CLR 402 at 408. And deprived, as AMWU is, of the capacity to represent the industrial interests of employees in the Mining and Metallurgical Plants Areas of MIM, AMWU may not be a party principal to the proposed agreements.”. (* counter part provisions to s.45) Materially, on 28 February 1996, a Full Bench of the Commission made an order under s. 45 in the following terms: “ORDER By consent of the Parties and pursuant to s. 45 this Commission doth order – 1. That the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland to the exclusion of the Australian Branch, Union of Employees (LHMU) shall have the right to the exclusion of The Australian Workers’ Union of Employees Queensland (AWU) to represent the industrial interests under the Industrial Relations Act 1990 of the following persons: (a) All persons employed in or in connection with hotels, motels, restaurants, contract catering, boarding houses, clubs, resorts, casinos, and tourist accommodation within the South-Eastern Division of Queensland. (b) All persons employed in or in connection with baking, bread, pastry and biscuits throughout Queensland, excepting where this activity takes place in the Northern Division of Queensland in enterprises where the sole or principal activity of the enterprise is in an industry other than baking, bread, pastry and biscuits. (c) All persons employed at ‘Cook Freeze’ at Grindle Road, Wacol, 4076, or any successor in business to it. (d) All classifications of employees employed at or by agricultural colleges in Queensland traditionally considered as ‘blue collar’ classifications. 2. That the AWU shall not have the right to represent the industrial interests under the Industrial Relations Act 1990 of the following persons: (a) All persons employed in or in connection with hotels, motels, restaurants, contract catering, catering, boarding houses, clubs, resorts, casinos, and tourist accommodation within the South-Eastern Division of Queensland. (b) All persons employed in or in connection with baking, bread, pastry and biscuits throughout Queensland, excepting where this activity takes place in the Northern Division of Queensland in enterprises where the sole or principal activity of the enterprise is in an industry other than baking, bread, pastry and biscuits. (c) All persons employed at ‘Cook Freeze’ at Grindle Road, Wacol, 4076, or any succession in business to it. (d) All classifications of employees employed at or by agricultural colleges in Queensland traditionally considered as “blue collar” classifications. 3. That the AWU shall have the right, and shall have the right to the exclusion of the LHMU to represent the industrial interests under the Industrial Relations Act 1990 of the following persons: (a) All persons employed in or in connection with hotels, motels, restaurants, contract catering, catering, boarding houses, clubs, resorts, casinos, and tourist accommodation in Queensland outside the South-Eastern Division of Queensland. (b) All persons employed at the Brisbane Convention and Exhibition Centre, Cnr Merivale and Melbourne Streets, South Brisbane, 4101, as manager/operator of the Brisbane Convention and Exhibition Centre but excluding employees of contractors and employees of the proposed hotel which will be located on or near the site of the convention centre. -- 2 of 11 -- 106 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 4 June 2004 (c) Employees of major theme parks within Queensland. (d) Greenkeepers employed in Queensland outside the South-Eastern Division in Queensland. 4. That the LHMU shall not have the right to represent the industrial interests under the Industrial Relations Act 1990 of the following persons: (a) All persons employed in or in connection with hotels, motels, restaurants, contract catering, catering, boarding houses, clubs, resorts, casinos, and tourist accommodation in Queensland outside the South-Eastern Division of Queensland. (b) All persons employed at the Brisbane Convention and Exhibition Centre, Cnr. Merivale and Melbourne Streets, South Brisbane, 4101, as manager/operator of the Brisbane Convention Centre, but excluding employees of contractors, and employees of the proposed hotel which will be located on or near the site of the convention centre. (c) Employees of major theme parks within Queensland. (d) Greenkeepers employed in Queensland outside the South-Eastern Division of Queensland. 5. For the purposes of this Order the following definitions will apply: (a) ‘South-Eastern Division of Queensland’ shall mean the area within the following boundaries in the State of Queensland commencing at Point Danger thence by the southern boundary of the state westerly to 151 degrees of east longitude; thence by that meridian of longitude bearing true north to 24 degrees 30 minutes of south latitude thence by that parallel of latitude bearing true cast to the sea coast; and thence by the sea southerly to the point of commencement, and all islands comprised in any state or federal electorate in the South-Eastern Division of Queensland, excluding Fraser Island. (b) ‘North Division of Queensland’ shall mean that part of the state along or north of a line commencing at the junction of the sea coast within the twenty first parallel of south latitude; thence by that parallel of latitude due west to 147 degrees of east longitude; thence by the meridian of longitude due west to the western border of the state. (c) ‘Major theme park’ shall mean any amusement park offering theme attractions for the entertainment of the public, whether indoor or outdoor, or both, which is of a substantial size. (d) ‘Catering’ shall not include industrial catering services for employees at mine sites and civil construction sites. 6. Pursuant to Section 45(3) of the Industrial Relations Act 1990, such coverage as determined in paragraphs 1 to 4 above shall not apply to: (a) any person employed as a Marine Engineer (however described) who is, or is eligible to be a member of the Australian Institute of Marine and Power Engineers’ Union of Employees, Queensland District. (b) any person employed as a master engineer, principal in charge, or launch master, who is, or is eligible to be a member of the Merchant Service Guild of Australia, Queensland Branch, Union of Employees. (c) any person employed by a bona fide building, and/or construction, and /or electrical and/or plumbing contractor or sub-contactor. (d) any person who is employed as a performer and/or stage and/or as technical crew exclusively attached to any live musical or theatrical performance or employed by a contracted theatrical company. (e) any persons engaged directly in the production of film or television programs at the Movie World theme park and movie studios. (f) any person in relation to whom it was ordered by the Australian Industrial Relations Commission in Print K9494 that the LHMU shall not have the right to represent: Provided that in the application of the decision in Print K9494 • any reference to the Australian Liquor, Hospitality and Miscellaneous Workers Union shall be read as a reference to the LHMU. • any reference to the Shop Distributive and Allied Employees Association shall be read as a reference to the Shop Distributive and Allied Employees Association (Queensland Branch) Union of employees. • any reference to other registered organisations shall be read as being a reference to any other union registered pursuant to the Industrial Relations Act 1990. (g) any person employed in a restaurant/road (sic) operating in or in connection with a service station. (h) any person employed by the Central Queensland University or the James Cook University of Northern Queensland. (i) any person employed in the South-Eastern Division of Queensland as a deckhand, marine cook or marine steward who is, or is eligible to be, a member of The Seamen’s Union of Australasia, Queensland Branch, Union of Employees.”. It is common ground that the consent order was intended by the parties to give effect to an agreement between the Australian Liquor Hospitality and Miscellaneous Workers’ Union and its Queensland registered counterpart on the one part, and the AWU-FIME Amalgamated Union and The Australian Workers’ Union of Employees, Queensland on the other part. The Agreement is before the Commission and is plainly within the category of extrinsic material to which reference may be made in the construction of the s. 45 Order of 28 February 1996. However, given the length of the document and its similarity to the Order only the preamble, which is critical to understanding the purpose upon which the parties had embarked, is reproduced: -- 3 of 11 -- 4 June 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 107 “A. PREAMBLE A1. The parties have reached this agreement having regard to the demarcation disputes between them and the ACTU policy of union rationalisation. That policy requires affiliates to reach agreement about the rationalisation of union coverage with the aim of significantly reducing the number of unions within each enterprise or industry. A2. This agreement applies to the respective industrial interests of the parties in the state of Queensland. A3. The parties note that: (a) Neither party by this agreement makes any concession or admission adverse to the breadth and construction of its eligibility rules. (b) This agreement is no way to be seen as encompassing the entire breadth of the membership of the parties but focuses upon the areas of contention between them specified in the agreement. (c) This agreement seeks to establish a workable relationship between the parties in relation to their respective areas of coverage in Queensland.”. By way of completeness one should note – (a) A counterpart order was made under s. 118A of the Industrial Relations Act 1988 on 22 May 1995, and; (b) It is common ground that there is an error at paragraph (1)(a) of the order of 28 February 1996 in that the words “catering” should appear between “contract catering” and “boarding houses.” Since this matter is about the right to represent held by The Australian Workers’ Union of Employees, Queensland and paragraph (1)(a) is relevant as an aid to construction only, it seems appropriate to deal with the matter as if “catering” appeared. Section 45 of the Industrial Relations Act 1990 was, of course, repealed by the Workplace Relations Act 1997. However, s. 293 of the Workplace Relations Act 1997 was a provision corresponding to s. 45. In consequence, by s. 492(3) of the Workplace Relations Act 1997 the Order of 28 February 1996 continued in force as if it had been “made, given, done, granted or approved by the . . . commission. . .” under s. 293. The Workplace Relations Act 1997 was repealed by the Industrial Relations Act 1999. Section 279 is a provision corresponding to s. 293 of the Workplace Relations Act 1997 and, if it be relevant, s. 45 of the Industrial Relations Act 1990. In consequence, by s. 710 of the Industrial Relations Act 1999, the order of 28 February 1996 continues in force as if it had been “made, given, done, granted or approved by the. . . commission . . . ” under s. 279. Indeed, the contrary has not been contended. On 13 January 2004, by a decision from the Bench now reported at 175 QGIG 237, a Commissioner sitting alone certified an agreement between The Australian Workers’ Union of Employees, Queensland (AWU) and Jupiter’s Ltd trading as Gold Coast Convention and Exhibition Centre. The name of the Certified Agreement is “Gold Coast Convention and Exhibition Certified Agreement 2003”. Certification of the Agreement had been opposed by the Queensland Council of Unions (QCU), which had been made a party to the certification proceedings pursuant to s. 322. It was also opposed by the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees (ALHMWU) and The Electrical Trades Union of Employees of Australia, Queensland Branch (ETU). Each organisation was permitted to be heard pursuant to s. 155. QCU and ALHMWU now seeks leave to appeal pursuant to s. 342. By consent of the parties the issues relevant to the grant of leave and the issues which would be agitated on appeal if leave was granted were rolled together and argued as one case. The appellants’ core submission is that the s. 45 Order of 28 February 1996 deprived the AWU of the right to represent the industrial interests of employees engaged in catering, and the employees proposed to be employed under the Agreement, which was about a new business, included employees to be engaged in catering. The denial of the right of the AWU to represent employees engaged in catering is sourced in paragraph 2(a) of the Order. The Commissioner is said to have erred in treating the reference to “catering” as a reference to catering businesses whereas properly construed the reference was to be the calling pursued by employees engaged in the calling of catering. It is submitted that the Order demarks areas of representation by reference both to the undertaking of employers and to the callings of employees. It is further submitted that if “catering” at paragraph 2(a) is read as a reference to the undertaking or business of catering, the reference to “contract catering” has no work to do. The submission that the Order of 28 February 1996 demarks areas of representative capacity by reference to the undertakings of employers and the callings of employees cannot be sustained. Paragraphs 1, 2 and 3 are comparably drafted. In each case subparagraph (a), if the controversial “catering” is put to one side, demarks areas of representation by generically described employer undertakings or business. Subparagraph (b) demarks areas of representation by reference to generically described industries. Subparagraph (c) demarks by reference to a named employer at a particular site. Only subparagraph (d) refers to employee callings, and it does so to limit a reference to a particular category of undertaking. There seems to be no justification for treating “catering” as a reference to an employee calling and attributing to those who drafted the Order an intention at paragraph (a) alone, an intention to commingle references to business and undertaking with a reference employee callings. With respect, the appellant’s second submission does not really advance the debate. It might equally well be contended that if the reference to catering is treated as a reference to the calling of employees engaged in catering, the reference to “contract catering” has no work to do. Doubtless contract caterers will employ persons who are readily identified as having an occupation which is not catering, e.g. telephonists. There may well be scope for argument about whether ALHMWU or some other employee organisation is entitled to represent the industrial interests of those persons. But the Order of 28 February 1996 was designed to give effect to a demarcation argument between ALHMWU and AWU. The coverage which each of those organisations would otherwise hold makes it difficult to give “contract catering” work to do if “catering” refers to the calling of employees engaged in catering (if indeed there is such a generic employee calling). No significance should be attributed to the reference to the Brisbane Convention and Exhibition Centre at paragraph 4(b). There had been earlier litigation between ALHMWU and AWU about that Centre, see AWU v. Convex (Qld) Pty Ltd (1994) 147 QGIG 246. The agreement between ALHMWU and the AWU required ALHMWU to discontinue proceedings linked to that decision. Of greater importance is paragraph B4 of the agreement which provides: “The parties agree to accept the status quo as to award coverage and union membership as between them in relation to all other areas not the subject of specific reference in this agreement.”. the Commissioner who dealt with the matter of first instance correctly noted, treating the reference to “catering” as a reference to an employee calling would destabilise a number of AWU awards dealing, inter alia, with catering activities, viz. – -- 4 of 11 -- 108 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 4 June 2004 “District Health Services Employees’ Award – State; Private Hospitals and Nursing Homes Industry Award – State 2003; Private Hospitals Employees’ Award – State 2003; Hospital Employees Award – Mount Olivet Hospital – Brisbane 2003; Award for Employees in Direct Client Services – Disability Services Queensland 2003; Disability Support Workers Award – State 2000; Queensland Meals on Wheels Services Award – State; Cerebral Palsy League of Queensland Award – 2003 and Diversional Therapists Award – State 2003.”. With respect to the energy and diligence of counsel for the appellants the Commissioner’s decision that “catering” is a reference to the business or undertaking of the employer is unimpeachable. Counsel for the first respondent has advanced an alternative submission that, even if the reference to “catering” is a reference to an employee calling of “catering”, the first and the second respondent were entitled to make the Agreement. In reliance upon a passage in MIM Holdings Limited v. Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union Employees, Queensland (2000) 164 QGIG 316 at 318 it is contended that in the case of “new business” agreements an employee organisation may enter into an agreement even if it has the capacity to represent the industrial interests of some only of the employees covered by the Agreement. With respect, the passage in the MIM Case, ibid, relied upon related to a situation in which more than one employee organisation had full coverage of all employees dealt within the Agreement. Whilst it is not necessary finally to determine the point, the proposition that before the employees are engaged a potential employer may enter an agreement fixing their terms and conditions of employment with an organisation which may represent the industrial interests of some only (perhaps one only) of them, is so novel that one might have expected a legislature adopting such a principle to use express language. It is to be noted that s. 141(1) expressly contemplates that a certified agreement may not be comprehensive, see the words “whether all employees, or a category of employees.”. In any event, having heard the appeal upon the core point whether the reference to “catering” is a reference to a business of undertaking the employer or the calling of the employee, we are in the position to determine that leave to appeal should not be granted. It is not a legitimate exercise of discretion to grant leave to pursue an appeal which cannot succeed. It must be recognised that the appellants had a subsidiary point about whether the new business was indeed the business of “catering”. The affidavit of Adrienne Readings, General Manager of the Gold Coast Convention and Exhibition Centre, that was filed in support of the application for certification nominated the Hospitality Industry – Restaurant, Catering and Allied Establishments Award – South-Eastern Division 2002 (Hospitality Industry Award 2002) as one of the relevant or designated Awards pursuant to s. 9 of the Industrial Relations Regulation 2000. Our attention was drawn to the similarity of the “catering” classifications found in the Certified Agreement and the Award. The appellants argued that given the Hospitality Industry Award 2002 was specified as a designated award and it is an award of the ALHMWU then coverage of the classifications at the Gold Coast Convention and Exhibition Convention Centre falls to that union. The material produced before the Commission at first instance shows that one of the services provided by the Convention Centre is catering. Clause 1.5(c) of the Award Coverage clause of the Hospitality Industry Award 2002 provides that the Award has application to the “provision of catering services where such services are incidental to the major business of the employer”. This is a departure from the application clause of the Café, Restaurant and Catering Award – South-Eastern Division that applied at the time the demarcation agreement and s. 45 Order were made. Then, the Award had application to “all employees employed in catering establishments and to their employers” and “catering establishments” was defined “to mean and include catering businesses”. In fact a review of the history of the Award shows that until the 2002 Award was made as part of the Award Review process that catering had been defined in relation to establishments. We leave for another day whether the scope of the Award Coverage clause that now appears in the Hospitality Industry Award 2002 was fully considered at the time the new Award was made particularly given that the Award Review process was not intended to extend or reduce terms and conditions of employment. The point was not taken before us and therefore we also leave to another day whether we should consider the coverage issue in relation to the Award that applied at the time the s. 45 Order was made rather than the Award that presently applies. We think that whether the Hospitality Industry Award has application to the Convention Centre is debatable because it is debatable whether the Centre is a catering establishment. We accept that it is a point on which reasonable minds may differ. There is a further ground of an appeal about the refusal of the Commissioner who dealt with matter of the first instance to refer the matter to a Full Bench. In the event, this Full Bench has dealt with matter in full. The prize which a reference to a Full Bench would deliver to the appellant has been the subject of full argument. In those circumstances the matter is not important enough in the public interest to give leave. The final point to be made is this. The parties rolled the application for leave and submissions on the “appeal” into one matter. This Bench has acquiesced in that course. However, an appeal by way of leave is available only on grounds other than an error of law or excess, or want, of jurisdiction, s. 342(1). There is much to be said to the view that all issues raised in this matter were alleged “errors of law”. Even the issue about reference to a Full Bench, raising as it did a matter giving to the exercise of discretion, appears to raise an error of law in the sense explained in the House v. King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ. The contention that the exercise of discretion might be reviewed on very much broader grounds under s. 342 seems to us to ignore the proposition that one would not interfere with an exercise of discretion unless satisfied that the exercise of discretion was wrong, compare Coal and Allied Operations Pty Ltd v. The Australian Industrial Relations Commission and Others (2000) 203 CLR 194 at para 14 per Gleeson C.J, Gaudron and Hayne JJ. We refuse all applications for leave to appeal. Dated 20 May 2004. D.R. HALL, President, G.K. FISHER, Commissioner. DECISION COMMISSIONER ASBURY Overview The matters before this Full Bench are applications to appeal and for leave to appeal against a decision of a Deputy President of the Commission in CA772 of 2003. The applications are brought by the Queensland Council of Unions (QCU) and the Australian Liquor, Hospitality and Miscellaneous Workers’ Union, Queensland Branch Union of Employees (ALHMWU) under s. 342(2) of the Industrial Relations Act 1999 (the Act). -- 5 of 11 -- 4 June 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 109 The decision appealed involved the certification of the Gold Coast Convention and Exhibition Centre Certified Agreement 2003 (the Agreement) and a refusal to refer the application for certification to a Full Bench under s. 281 of the Act. The respondents in the appeal and parties to the Agreement are Jupiters Limited trading as the Gold Coast Convention and Exhibition Centre (Jupiters Limited) and The Australian Workers’ Union of Employees, Queensland (AWU). The grounds of the appeals are set out in the decision of President Hall and Commissioner Fisher. I have reached the conclusion that the appeals should be dismissed as have President Hall and Commissioner Fisher. I agree with the decision of President Hall and Commissioner Fisher insofar as it deals with the refusal of the Deputy President to refer the application for certification to a Full Bench. However, in respect of other matters my views about the appeals and my reasons for reaching the conclusion that they should be dismissed are different. I have concluded that the Hospitality Industry – Restaurant, Catering and Allied Establishments Award – South-Eastern Division 2002 is binding on Jupiters Ltd in respect of the employment of at least some of the employees covered by the Agreement and regulates their terms and conditions of employment to any extent that the Certified Agreement does not. I have also concluded that the AWU does not have the right to represent the industrial interests of employees engaged in catering covered by the Hospitality Industry – Restaurant, Catering and Allied Establishments Award – South-Eastern Division 2002 by virtue of an Order of a Full Bench of this Commission made under s. 45 of the then Industrial Relations Act 1990 on 28 February 1996 in B 1519 of 1994 (the Demarcation Order). Notwithstanding my views on the effect of the Demarcation Order, I have also concluded that AWU was entitled to make the Agreement and that the parties were entitled to have it certified. In reaching these conclusions, I have had significant difficulty due to the fact that a number of matters which I believe had central relevance to the issues in the appeal were not argued at all, or were given only cursory consideration by the appellant, both at first instance, and on appeal. These matters relate to the application of various awards of this Commission to catering and contract catering and the basis upon which those awards apply. The appellant dealt to a degree with the issue of whether the Hospitality Industry – Restaurant, Catering and Allied Establishments Award – South-Eastern Division 2002 applied to employees covered by the Agreement. While this matter had some relevance to the issues in the appeal, of greater relevance was the coverage of the predecessor to that award (the Café, Restaurant and Catering Award – South-Eastern Division) and of other related awards, particularly the Café, Restaurant and Catering Award – State (Excluding South-East Queensland) and the Contract Catering and Industrial Services Award – South- Eastern District, at the time that the ALHMWU and the AWU reached agreement on demarcation of catering and contract catering, and the Demarcation Order was made. An appeal under s. 342 is by way of rehearing on the record, although a Full Bench may hear evidence afresh or hear additional evidence if it considers it appropriate to effectively dispose of the appeal. The additional matters referred to above are not evidentiary in nature, relating as they do to awards of this Commission in the form they took at a certain point in time. This Full Bench would not have needed to hear additional evidence, but in the normal course of events, procedural fairness would have required that the appeal be re-listed and the parties invited to make submissions on these matters. However, given the view that I have reached about the rights of the parties to have the Agreement certified regardless of the Demarcation Order, further submissions on its construction would not have changed the outcome. My reasons for reaching these conclusions are set out below. The Basis of the Appeals I do not agree that the appeals raised only errors of law. In my view the appeals were correctly brought under s. 342 of the Act. The appeals were said by Senior Counsel for the appellants, to encompass both the substantive question of the approach the Deputy President took to the construction of the Demarcation Order and the question of whether the Deputy President should have exercised discretion under s. 281 of the Act to refer the issues in CA772 of 2003 to a Full Bench of the Commission, or at least not deal with those issues until they had been considered by a Full Bench. These discretionary questions were conceded by Senior Counsel for the appellants to be the only matters encompassed in the applications to appeal not involving questions of law. Counsel for the appellants submitted that the review of the exercise of discretion under s. 342 of the Act differed to that under s. 341 and would not necessarily require an error of the type identified in House v. The King (1936) 55 CLR 499 to give rise to an action on the part of the Full Bench in this appeal. Counsel for the appellants also conceded that during the course of arguing the appeal ex post facto matters had been raised of some significance to the Queensland legislation, and that those matters had not been before the Commission at first instance. The appeal provisions in the Act effectively require an appellant to select an avenue of appeal under s. 341 or s. 342 depending on the grounds upon which the appeal is to be mounted. By an appeal under s. 341 of the Act, the Minister or a person dissatisfied with a decision of the Commission may appeal to the Industrial Court on the ground of: (a) Error of law; or (b) Excess, or want, of jurisdiction. By an appeal under s. 342 a person dissatisfied with a decision of the Commission, other than a determination under s. 149 may appeal against the decision to a Full Bench, with the Full Bench’s leave, on a ground other than error of law or excess or want of jurisdiction, or on those grounds and another ground. The effect is that a person may appeal under s. 342 on what are commonly termed “merit grounds” or both on merit grounds and on a ground of error of law or excess or want of jurisdiction. Merit grounds may encompass findings of fact and may also encompass the exercise of discretion. Where there is admissible evidence in relation to findings of fact, the question of whether the evidence supportive of the findings should have been accepted in whole or in part rather than evidence leading to other conclusions, or ought to have been accepted as sufficient to establish facts ultimately found, is itself a question of fact and not a question of law: Rainford v. QNI Resources Pty Ltd (2000) 163 QGIG 274 at 275. See also MH and JE Jensen (Partnership) v. Wridgways Pty Ltd (2002)169 QGIG 152 at 153 where it was held by President Hall that an appeal did not pose a question as to whether there was evidence to support a finding of fact made by the Commission, but rather whether evidence supportive of a particular finding should have been accepted in whole or in part, instead of other evidence which led to other conclusions. The latter question was one of fact and not law and s. 341(1) of the Act did not authorise such an appeal. As was observed in Da Costa v. R (1968) 118 CLR 186, the distinction between fact and law can be difficult to make and a question may be one of mixed fact and law. As his Honour Justice Windeyer said in that case (at 195): “The expression ‘a question of mixed law and fact’ seems to describe a hybrid. The progeny of a dispute as to facts and as to the effect of the facts when they have been determined one way or the other.”. Recent decisions of the High Court have also highlighted the fact that there is frequently an overlap between errors of law and jurisdictional errors: Craig v. State of South Australia (1995) 184 CLR 163 at 169 and Minister for Immigration and Multicultural Affairs v. Yusuf (2001) 206 CLR 323. In the latter decision, the High Court said (at 351 per McHugh, Gummow and Hayne JJ) that: “ ‘ Jurisdictional error’ can thus be seen to embrace a number of different kinds of error, the list of which in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision maker both asking the wrong question and ignoring relevant material. What is important however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power, is to make an error of law. Further, doing so results in the decision maker exceeding the authority or powers given by the relevant -- 6 of 11 -- 110 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 4 June 2004 statute. In other words if an error of those types is made, the decision maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.”. However, in my view both of these decisions are of limited relevance to appeals under s. 342 of the Act. A right of appeal is derived from the legislation in which it is found. In Craig, the High Court was examining whether an appeal against the decision of a tribunal precluded from exercising judicial power to determine questions of law by Constitutional limitations, was an appeal on error of law or a jurisdictional error. In contrast, the Commission by virtue of s. 265 of the Act, may inter alia hear and decide all questions of law or fact brought before it or that it considers expedient to hear and decide for the regulation of a calling. Such provisions have been contained in predecessors to the current Act. Further, the current provisions of the Act with respect to Full Bench appeals were enacted after the decision in Craig. The appeal provisions in s. 341 and s. 342 of the Act deal with appeals from decisions of Industrial Magistrates; the Commission and the Industrial Registrar. The subject matter and the issues determined in those decisions, and consequently the grounds of appeals brought against them, are diverse. In reaching decisions the Commission is almost always confronted with issues of both law and fact which must be determined, and frequently those issues are intertwined. To separate those issues for the purpose of an appeal is often difficult if not impossible. Further, given the nature of the Commission’s jurisdiction, it is hardly surprising that an appeal which at the outset prima facie encompass issues of mixed law and fact, undergoes metamorphosis during the course of argument into an appeal about questions of law. The appeals before this Full Bench are a case in point. Prima facie the applications to appeal and for leave to appeal, and the written submissions filed by the appellants in compliance with directions, involved questions about the exercise of discretion by the Deputy President who heard the matter at first instance. Arguably those grounds also raised other issues of mixed fact and law. The written submissions of the respondents filed after those of the appellants did not press the issue of whether the appeals were properly brought under s. 342. This issue did not emerge until oral submissions were made by Senior Counsel for the appellant. Given the nature of the Commission’s jurisdiction and the issues arising under it, to find that an appeal which was properly made under s. 342 at the outset, and became an appeal on law only during the course of hearing, was incompetent on the grounds that it should have been made under s. 341 of the Act, would render the provisions of s. 342 nugatory. If the dicta in Craig on the overlap of error of law and jurisdictional error was applied under s. 342 to create an overlap between errors of law and of fact, it would be difficult to envisage any appeal which could be brought under s. 342 as all errors would effectively be errors of law. Such an approach would ignore the fact that Act establishes two avenues of appeal against decisions of the Commission. My view on the grounds of appeal in this case would have been different had it been apparent on the face of the application to appeal that those grounds did not properly raise an issue under s. 342. This was not such a case. Leave to Appeal I am of the view that these appeals raise issues of sufficient importance and public interest to warrant leave to appeal being granted. These issues include: • the operation and effect of Orders under s. 45 of previous legislation and by extension Orders under s. 279 of the current Act; • whether Orders under s. 45 of previous legislation and by extension Orders under s. 279 of the current Act can be over-ridden in whole or in part by certified agreements; and • considerations in the certification of agreements. The Hospitality Industry – Restaurant, Catering and Allied Establishments Award – South-Eastern Division 2002 The Hospitality Industry – Restaurant, Catering and Allied Establishments Award – South-Eastern Division 2002 is binding on Jupiters Limited in respect of the employment of at least some of the employees covered by the Agreement, albeit that the terms of that Award are over-ridden by the Agreement while it remains in effect. In certifying the Agreement the Commission found that it met the requirements of s. 156 of the Act. Those requirements include that the Agreement contained or was accompanied by information prescribed under a Regulation (refer s. 156(1)(f) and that it passed the “no disadvantage test” in Chapter 6 Division 3 of the Act. Regulation 9 of the Industrial Relations Regulation 2000 provides that for the purposes of s. 156(1)(f), an agreement must be accompanied by an affidavit containing the specified information, including the name of the relevant or designated Award. The relevant or designated Award provides the basis for applying the “no disadvantage test” contained in Chapter 6 Division 3 of the Act and for the operation of s. 143, dealing with notification to proposed parties to an agreement. Section 163 of the Act provides a process which must be followed by an employer seeking to make a certified agreement where there is no relevant award, whereby an application must be made to the Commission for an award to be designated by the Commission for the purposes of establishing whether the certified agreement passes the no disadvantage test. In the proceedings for certification of the Agreement in the present case, no application under s. 163 for the designation of an award was made. The affidavit deposed by Ms Adrienne Readings, General Manager of the Gold Coast Convention and Exhibition Centre, filed with the Agreement in compliance with Regulation 9 of the Industrial Relations Regulation 2000, included a statement at paragraph 5 that: “The name of the relevant or designated awards are: • The Theatrical Employees Award – State • The Hospitality Industry – Restaurant, Catering and Allied Establishments Award – South-Eastern Division 2002”. Given that an award was not designated under s. 163 of the Act, those Awards were relevant awards for the purposes of certification of the Agreement. By virtue of the definition in Schedule 5 of the Act, a relevant award: “…in relation to a person to whom a certified agreement…will apply, means an award: (a) regulating any employment condition of persons engaged in the same kind of work as that of persons under the agreement; and (b) that immediately before the initial day of the agreement, binds the person’s employer”. This definition extends to circumstances where the proposed certified agreement is for a new business, as was the case with respect to the Agreement subject of these proceedings. If this was not the case then an Award would have been required to have been designated before the Agreement could have been found to have passed the no disadvantage test. -- 7 of 11 -- 4 June 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 111 The Hospitality Industry – Restaurant, Catering and Allied Establishments Award – South-Eastern Division 2002 relevantly provides at clause 1.5 as follows: “1.5 Award Coverage 1.5.1 This Award shall apply throughout the South-Eastern Division of Queensland to employers engaged in the business of: (a) the provision of live or recorded entertainment at licensed or unlicensed venues whether or not meals are served in conjunction with such entertainment; (b) the provision of meals including any type of light refreshments or take-away meals whether or not the establishment is licensed or unlicensed; (c) the provision of catering services where such services are incidental to the major business of the employer 1.5.2 This Award shall apply to all employees engaged by employers carrying out a business identified in clause 1.5.1 above and for whom classifications and rates of pay are provided for in this Award …”. At clause 5.1 the Hospitality Industry – Restaurant, Catering and Allied Establishments Award – South-Eastern Division 2002 provides various classifications for employees engaged in the serving and preparation of food and beverages. Those classifications are consistent with a number, but not all, of classifications contained in the Agreement. I do not agree, for reasons set out below, that the coverage clause in the Hospitality Industry – Restaurant, Catering and Allied Establishments Award – South-Eastern Division 2002 is a departure from the coverage of the predecessor Award. The Construction of the Demarcation Order The terms of the Demarcation Order are set out in full in the decision of President Hall and Commissioner Fisher. I agree with the conclusion of President Hall and Commissioner Fisher that there is an error at paragraph I(a) of the Demarcation Order in that the word “catering” should appear between the words “contract catering” and “boarding houses”. The Demarcation Order was said to have given effect to an agreement reached between the AWU and the ALHMWU in 1994. That Agreement (the demarcation agreement) is in writing and relevantly provides as follows: “WITHOUT PREJUDICE DEED OF AGREEMENT Agreement between the Australian Liquor Hospitality and Miscellaneous Workers Union [‘LHMU’] and the Australian Liquor Hospitality and Miscellaneous Workers Union of Employees, Queensland [‘LHMUQ’] on the one part, and the AWU–FIME Amalgamated Union [‘AWU–FIME’] and the Australian Workers’ Union of Employees Queensland [‘AWUEQ’] on the other part [‘the parties’]. This agreement provides as follows: A. PREAMBLE A1. The parties have reached this agreement having regard to the demarcation disputes between them and the ACTU policy of union rationalisation. That policy requires the affiliates to reach agreement about rationalisation of union coverage with the aim of significantly reducing the number of unions within each enterprise or industry. A2. This agreement applies to the respective industrial interests of the parties in the state of Queensland. A3. That parties note that: (a) Neither party by this agreement makes any concession or admission adverse to the breadth and construction of its eligibility rules. (b) This agreement is in no way to be seen as encompassing the entire breadth of the membership of the parties but focuses upon the areas of contention between them specified in the agreement. (c) This agreement seeks to establish a workable relationship between the parties in relations to their respective area coverage in Queensland. B. DEMARCATION Having regard to the major areas of interest of each union and the potential for either overlapping membership interests or future demarcation problems, the parties agree to rationalise areas of their membership and demark their respective areas of operations in the State of Queensland as follows: B1. Coverage of hotels, motels, restaurants, contract catering, catering (excluding industrial catering at mine sites and civil construction sites), boarding houses, clubs, resorts, casinos, tourist accommodation shall be demarked between the parties as follows: (a) South-Eastern Division: LHMU/LHMU Q [The South-Eastern Division is defined as – the area within the following boundaries in the State of Queensland: commencing at Point Danger and bounded thence by the southern boundary of the state westerly to 151 degrees of east longitude; thence by that meridian of longitude bearing true north to 24 degrees 30 minutes of south latitude thence by that parallel of latitude bearing true east to the sea coast; and thence by the sea coast southerly to the point of commencement; and all islands comprised in any state or federal electorate in the South-Eastern Division of Queensland excluding Fraser Island] (b) In the State of Queensland outside the South-Eastern Division: AWUEQ/AWU–FIME. B2. The AWUEQ/AWU–FIME shall cover employees engaged in or in connection with the following areas/industries/callings to the exclusion of the LHMU/LHMUQ: (a) The Brisbane Convention and Exhibition Centre: Employees of the manager/operator of the Brisbane Convention and Exhibition Centre, but excluding employees of contractors, and employees of the proposed attached hotel. (b) Employees at Movie World and Sea World, in accordance with the orders of the Australian Industrial Relations Commission in Prints K1736, K2060, K2061 and L4509 respectively, and persons employed at Dream World and any future major theme parks but excluding -- 8 of 11 -- 112 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 4 June 2004 employees of contractors. “Major theme park” shall mean any amusement park offering themed attractions for the entertainment of the public, whether indoor or outdoor, or both, which is of a substantial size. (c) Greenkeepers outside the SE division. B3. The LHMU.LHMU(Q) shall cover employees engaged in or in connection with the following areas/industries/callings to the exclusion of the AWUEQ/AWU–FIME: (a) Baking, bread, pastry and biscuits industry throughout Queensland excepting where this activity takes place, in the Northern Division of Queensland (as hereinafter defined), in enterprises where the sole or principal activity of the enterprise is in an industry other than baking, bread, pastry and biscuits. “Northern Division” shall mean that part of the State along or north of a line commencing at the junction of the sea-coast within the twenty first parallel of south latitude; thence by that parallel of latitude due west to 147 degrees of east longitude; thence by that meridian of longitude due south to 22 degrees, 30 minutes south latitude; thence by that parallel of latitude due west to the western border of the state. (b) All workers employed at Cookfreeze. (c) All blue collar classifications at Agricultural colleges in Queensland. B4. The parties agree to accept the status quo as to award coverage and union membership as between them in relation to the all other areas not the subject of specific reference in this agreement. C. MCJANNET V. WHITE The parties agree that they will co-operate and adopt a co-operative and open approach in resolving the issues/problems facing the trade union movement as a result of the decision of the federal court in McJannet v. White based on an approach which will permit each union to operate in the appropriate federal and/or state systems of industrial relations consistent with this agreement. D. SECTION 118A, 45 ORDERS, AWARDS D1. The parties agree to the formulation of orders to reflect this agreement which orders shall be made under section 118A of the Industrial Relations Act (1988) (Cwth) and section 45 of the Industrial Relations Act (1990) (Q). Consequential rules and callings alterations shall also be made. These applications shall be agreed between the parties and shall be processed concurrently as a package in the federal and state jurisdictions by a joint sitting, if possible. D2. The orders to be made as a result of this agreement shall be conditional orders to take account of the terms and conditions of this agreement. D3. The parties agree that this agreement is to be treated inter alia as an agreement of the kind referred to in section 118A(2)(c) of the Industrial Relations Act (1988) (Cwth) and section 45(2)(c) of the Industrial Relations Act (1990) (Q). D4. The parties agree that this agreement is a legally binding agreement between them and shall continue to apply in spite of any legislative change including repeal of section 118A of the Industrial Relations Act (1988) (Cwth) and/or section 45 of the Industrial Relations Act (1990) (Q). D5. The parties will take immediate steps to apply for and obtain any necessary variations to awards and or industrial agreements to give effect to this agreement…”. The Demarcation Agreement is extrinsic material to which regard may be had in the construction of the Demarcation Order. I am also of the view that the terms of awards of this Commission covering catering and contract catering are extrinsic material to which regard can be had for this purpose. Both the demarcation agreement and awards covering areas of membership and operations of the Unions bound by the Demarcation Order are part of the objective framework of facts in which that Order came into existence and evidence the presumed intention of the parties in making the agreement given effect to by the Demarcation Order: Codelfa Construction Pty Ltd v. State Rail Authority of New South Wales (1982) 149 CLR 337 at 352 per Mason J. The use in the demarcation agreement of the terms “areas of membership” and “areas of operations” make it clear that the agreement related to both the operations of employers and the callings of employees. This is further indicated by the use of the term “areas/industries/callings” in clauses B2 and B3 of the agreement. In my view a presumption can properly be made that the parties intended to demark areas, industries and callings. The preamble to the agreement was not included in the Demarcation Order made by a Full Bench of this Commission with the consent of the parties in B1519 of 1994. However, by virtue of clause D3 of the agreement the parties had agreed that it was to be treated as an undertaking of the kind referred to in s. 45(2)(c) of the then Industrial Relations Act 1990 which provided that in considering whether to make an order under s. 45 the Full Bench must consider an agreement or undertaking it becomes aware of that deals with an employee organisation’s right to represent a particular group of employees. No material was put to this Full Bench in relation to the proceedings in B1519 of 1994 to indicate whether the Full Bench in that case was made or became aware of the demarcation agreement, so no more than the presumed intention of the parties in this regard can be gleaned from the agreement. The demarcation agreement was made in 1994 (refer affidavit of Chris Barrett in relation to B219 of 2003, application for reference of CA772 of 2003 to a Full Bench – paragraph 5). The application for the Demarcation Order was also made in 1994. At that time, there were a number of awards of this Commission with application to catering and contract catering operating in Queensland: the Café Restaurant and Catering Award – South-Eastern Division; the Café Restaurant and Catering Award (Excluding South-East Queensland) Award and the Contract Catering and Industrial Services Award – South-Eastern District. The two Café Restaurant and Catering Awards applied respectively to the South-Eastern Division and the remainder of the State of Queensland. The geographical areas in which they applied reflected the geographical division in the Demarcation Order including with respect to coverage of catering and contract catering. The application clause of the Café Restaurant and Catering Award – South-Eastern Division taken from that Award as consolidated and gazetted at (1984) QGIG 116 at 81 provided as follows: “This Award shall apply to all employees employed in catering establishments and to their Employers throughout the South-Eastern Division of Queensland: Provided that without limiting the generality of the term, ‘catering establishments’ shall be deemed to mean and include all restaurants, cafes, catering businesses, café-terias (sic), refreshment rooms, and for the purposes of this Award shall not apply to persons covered by any other Award or Industrial Agreement.”. That clause was in the same form in 1994. In 1994, the Café Restaurant and Catering Award (Excluding South-East Queensland) Award applied as follows: -- 9 of 11 -- 4 June 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 113 “Application of Award 2. This Award shall apply as follows:- (a) To all Employers and their employees in cafes, restaurants, refreshment rooms, Roadhouses, Milk bars, Fish and Oyster Saloons in or from which food and/or drink are prepared and/or sold for consumption on the premises; (b) To all Employers and their employees in take-away food establishments and the like; (c) To all Employers and their employees engaged in the business of catering. This Award does not apply to employers and their employees bound by the provisions of the Hotels, Resorts and Certain Other Licensed Premises Award – State (Excluding South-East Queensland)….”. The Café Restaurant and Catering Award (Excluding South-East Queensland) Award also contained two definitions in the following terms in clause 5: “ ‘Caterer’ (other than Industrial Caterer) shall mean any Employer carrying on the business of catering for weddings, receptions, parties, dances, conventions, seminars, social functions, sports grounds, race, trotting and greyhound meetings, Agricultural or Industrial shows or any similar functions or events … ‘Industrial Caterer’ shall mean any Employer carrying on the business of catering and/or providing accommodation for any number of persons involved in Industrial Undertakings on location where catering is provided for on the basis of a minimum of two main meal times per day.”. In 1994, the Contract Catering and Industrial Services Award – South-Eastern District applied as follows: “Application of Award 1. This Award shall apply to those employers whose principal and substantial business activity is that of providing catering services and accommodation services on contract or fee for service basis and to their employees. Provided however this Award shall not apply to those employees of employers covered by the Café, Restaurant and Catering Award – South- Eastern Division, nor to those employers who provide ad hoc catering services as an incidental function to the major business activity of that employer. This Award shall also apply to industrial service establishments… This Award shall not apply to any establishment which is operated solely in connection with a civil construction project or a forestry reserve…”. In 1994 all of the abovementioned Awards contained preference clauses with preference under the Café Restaurant and Catering Award – South-Eastern Division and the Contract Catering and Industrial Services Award – South-Eastern District being given to the ALHMWU and preference under the Café Restaurant and Catering Award (Excluding South-East Queensland) Award being given to the AWU. Both Unions have been respectively viewed as holding the Awards to which they had preference. The version of the Café Restaurant and Catering Award – South-Eastern Division current at the time the Agreement was certified – now known as the Hospitality Industry – Restaurant, Catering and Allied Establishments Award – South-Eastern Division 2002 – provides at clause 1.6 that it is legally binding on the ALHMWU. The current version of the Café Restaurant and Catering Award (Excluding South-East Queensland) Award – now known as the Café Restaurant and Catering Award – State (Excluding South-East Queensland 2003) provides that the AWU is legally bound by reference to clause 1.7 read in conjunction with clause 1.6.10. Further both of those Awards provide that they do not apply to employees covered by any other award, and as far as I can tell, have always done so. I can see no basis for reading the application clauses of these awards as limiting their operation to circumstances where the principal business of the employer was catering. An employer providing catering services as an ancillary part of another business would at the point the demarcation agreement was made, have had great difficulty arguing that those services were award free, and were not caught by the Café, Restaurant and Catering Awards in the absence of another enterprise or industry specific awards. Further, earlier decisions of the Commission where it was held that those awards had application to “establishments” were given in the context of attempts to extend their operation to staff canteens in factories and the like, where catering services were not being provided to the general public – see for example Café and Restaurant Employees’ Award – South-Eastern Division Interpretation (1969) QGIG 18 at 139. Such decisions are not authority for the proposition that these awards did not apply to catering unless it was undertaken in an establishment that was principally a catering establishment, or an employer principally engaged in the business of catering. In my view the meaning of the terms “catering” and “contract catering” was well established at the time the Demarcation Order was agreed to and made and I can see no basis for construing the Order in a narrower sense than was objectively the case in 1994. The Demarcation Order with respect to the reference to catering and contract catering, does no more than reflect award coverage existing at the time the Demarcation Order and the agreement giving effect to it were made. The geographical operation of the Demarcation Order with respect to catering and contract catering is the same as that reflected in the coverage of the Awards, and the Demarcation Order also excludes industrial catering services for employees at civil construction projects, as do the Awards. The exclusion for the Brisbane Convention Centre from the terms of the Demarcation Order reflects the fact that the ALHMWU agreed to cease attempts to overturn a decision of the Commission with respect to coverage of that operation. I do not accept that the construction of the Demarcation Order which I favour impacts on any award arrangements affecting the AWU, given that the parties had agreed to accept the status quo with respect to award coverage and union membership in relation to all other areas not the subject of the demarcation agreement. Further, the awards highlighted in the submissions of the AWU have and continue to operate to the exclusion of the Hospitality Industry – Restaurant, Catering and Allied Establishments Award – South-Eastern Division 2002 and Café Restaurant and Catering Award – State (Excluding South-East Queensland 2003) by virtue of the exclusions contained in the latter Awards – refer clauses 1.5.6 and 1.4.3 respectively. I also note that the demarcation agreement contained a provision for review and alteration in the case of “greenfields” sites. This does not appear to have occurred. Thus the demarcation agreement remains in effect, and presumably any rights under it continue. The Parties to the Agreement were Entitled to Have it Certified The parties to the Agreement were entitled to have it certified regardless of whether the Demarcation Order operated in the manner contended for by the appellants. Chapter 6 of the Act provides what is in effect a code by which the Commission is required to deal with applications for the certification of agreements. By virtue of s. 141(1) a certified agreement may be made about the relationship between an employer and a group of employees. A group of employees for the purposes of s. 141(1) may include employees proposed to be employed in a new business by an employer, other than a multi-employer. Who may make certified agreements is dealt with in s. 142 which provides that such an agreement may be made by an employer and one or more employee organisations who represent or are entitled to represent any employees, who are, or are eligible to be, members of the organisation, or the employees at the time the Agreement is made. Section 143 of the Act requires the proposer of a certified agreement to notify other proposed parties. In this regard there is a distinction in the case of project agreements, covering the construction of a project and other agreements. In the case of a proposal for a project agreement, the proposer is required to notify all “relevant employee organisations” defined to those bound by an award or industrial agreement that binds the employer, or would -- 10 of 11 -- 114 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 4 June 2004 bind the employer, apart from an award under the Commonwealth Act or if there is no award or agreement so binding, an organisation that is entitled to represent the industrial interests of the employees to be covered. Clearly the Act contemplates that for new business agreements other than project agreements, an employer proposing an agreement may choose the organisation or organisations with which it wishes to reach agreement. The choice of the employer in this regard is restricted only in the sense that there must be one organisation which is entitled to represent any employees proposed to be covered by the Agreement. This is distinct from situations where the proposed Agreement is for a project. In that situation the employer is required to at least offer all relevant organisations (as defined) an opportunity to utilise the provisions of s. 143(4) to advise that they want to be a party to the proposed Agreement. Section 156 of the Act provides that the Commission must certify an agreement if, and must certify if, and must not certify an agreement unless, matters listed in that section are complied with. The Commission can require no more or accept no less than compliance with those matters. Some of the provisions of the Act listed in s. 156 as requirements are not applicable to agreements to cover new businesses. Relevantly, s. 156(1)(k) of the Act requires that for an agreement for a new business, made before the employment of any person in the new business at the new workplace, the Agreement has been made with one or more employee organisations entitled to represent the industrial interests of the persons. In short, where the legislature intended that all unions party to awards which would otherwise be binding on an employer, or with coverage of employees, were required to be invited to be party to a proposed agreement, it created a clear and distinct legislative regime to this effect. That regime is limited to project agreements as defined. There is no such regime with respect to agreements for new businesses. Accordingly an agreement for a new business may be made with one organisation, entitled to represent more than one employee to be covered. There is no requirement that all organisations entitled to represent employees be party to the Agreement, or that the organisation that is party to an agreement for a new business has the right to represent all of the employees to be covered. I do not think there is anything novel in such a provision, given the history of certified agreements and in particular those for new businesses, commonly known as “greenfields agreements”. In my view the legislation simply recognises that employers investing considerable amounts of money in establishing new businesses, should have the ability to enter into relationships with unions of their choice in order to bring about workplace arrangements which they believe will maximise productivity, efficiency and flexibility. That ability has been legislatively altered in the case of construction projects. I can see no basis for construing the legislation as it deals with other types of new business agreements so that an employer is required to make an agreement with unions to achieve blanket coverage of all of its employees. I also note that the appellant concedes, correctly in my view, that the provisions of the Workplace Relations Act 1996 (Cwth) in this regard would enable a “greenfields agreement” to be certified in circumstances where the union party to it could only cover one or more but not all of the employees proposed to be bound. The circumstances of this case are somewhat unusual in that the Demarcation Order is in effect. Certifying an agreement which in effect over-rides an aspect of that Demarcation Order at first glance would seem to be contrary to the public interest. However it should be noted that there is no public interest consideration in the certification of agreements. If there was such a consideration, it may be relevant that a union party to an agreement was not entitled to represent the industrial interests of some of the persons covered by it, particularly where that union was precluded from that entitlement by an order of this Commission such as the one operative in the present case. Accordingly the fact that the Demarcation Order in this case denies the AWU the right to represent the industrial interests of some of the employees covered by the Agreement, is no barrier to its certification. Further, the Commission may be entitled to refuse certification in the face of a Demarcation Order if the terms of a certified agreement breached freedom of association provisions, for example, by requiring employees covered by it to be represented in processes under the Agreement by a union which has no right to represent their industrial interests. This issue was not raised on appeal or at first instance and I do not intend to deal with it. Conclusion For the reasons set out above, I would give leave to the appellants to appeal, and dismiss each of the appeals. Dated 20 May 2004. I.C. ASBURY, Commissioner. Released: 25 May 2004 Appearances: Mr R. Kenzie QC and with him Mr J. Nolan of Counsel instructed by Hall Payne, Solicitors, for the appellants. Mr A. Herbert of Counsel directly instructed for the The Australian Workers’ Union, Queensland. Mr G. Black of Retailers’ Association of Queensland Limited, Union of Employers for Jupiter’s Ltd. -- 11 of 11 --