Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v The Australian Workers’ Union of Employees, Queensland [2004] QIRC 84 (2004) 176 QGIG 71

28 May , 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 71 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 280 – application for reopening Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees AND The Australian Workers’ Union of Employees, Queensland (No. B118 of 2004) PRESIDENT HALL 13 May 2004 DEPUTY PRESIDENT BLOOMFIELD COMMISSIONER BLADES Application for reopening – Industrial Relations Act 1990 s. 45 – Demarcation order – Alteration to Union Rules not completed – Repeal of Legislation – Workplace Relations Act 1997 – Industrial Relations Act 1999 – Office of Chief Commissioner abolished– Section 20 Acts Interpretation Act 1954 – Change in Legislation revealed a contrary intention so that “accrued right” to have Rule altered was not saved by Acts Interpretation Act 1954 – Application dismissed. DECISION President Hall: I agree with the reasons of Commissioner Blades and the Order proposed. Deputy President Bloomfield: I also agree. Commissioner Blades: This is an application for the re-opening of matter No B1519 of 1994 so that the Constitution Rule of The Australian Workers’ Union of Employees, Queensland (the AWU) be amended to reflect the Orders made in B1519 of 1994 by the Full Bench of the Commission on 28 February 1996 (which operated from 8 November 1995), published at (1996) 151 QGIG 1537-39. Application B1519 of 1994 was an application by Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees (the ALHMWU) for orders for representation rights involving that union and the AWU in respect of certain classes of employees. The Order published was to the effect that the ALHMWU had the right to the exclusion of the AWU to represent the industrial interests of certain persons; that the AWU did not have the right to represent the industrial interests of certain persons; that the AWU had the right to the exclusion of the ALHMWU to represent the industrial interests of certain persons and the ALHMWU did not have the right to represent the industrial interests of certain persons. The issuing of the Orders followed the reaching of an agreement between the ALHMWU and the AWU in late 1994 which gave representation rights to the ALHMWU in the south eastern division for: -- 1 of 3 -- 72 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 28 May, 2004 “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 ...”. The agreement gave to the AWU, the right to cover employees of the Brisbane Convention and Exhibition Centre. The agreement also provided for the formulation of orders to reflect the agreement under the Federal Act and also under s. 45 of the Industrial Relations Act 1990. It was agreed that consequential rules and callings alterations should also be made. In addition to the Order published, the Full Bench of the Commission made the following remarks on transcript on 31 May 1995 in regard to the alteration of the rules of the industrial organisations: “We order in terms of the application, pursuant to section 45 subsection 4. We declare that we are satisfied that the rules of the industrial organizations of employees referred to in the order do need to be altered and we refer the matter to the nominated Commissioner. We then go to the matter of programming. How many days do we think it will take?”. Section 45 of the then Industrial Relations Act 1990, so far as is relevant, provided: “Organisation coverage 45. (1) 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 aspects of a particular class or group of employees who are eligible for membership of the organisation; (b) an order that 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. (2) .. (3) .. (4) If the Full Bench makes an order under subsection (1), the Full Bench must refer the matter to a nominated Commissioner unless the Full Bench is satisfied that the rules of the industrial organisations concerned do not need to be altered. (5) If a matter is referred to a nominated Commissioner under subsection (4), the nominated Commissioner must, after giving each industrial organisation concerned an opportunity, as prescribed, to be heard, determine such alterations (if any) of the rules of any industrial organisation concerned as are, in the nominated Commissioner’s opinion, necessary to reflect the order of the Full Bench. (6) An alteration of the rules of an industrial organisation determined under subsection (5) takes effect on the day on which the determination is made. (7) In this section - ‘Nominated Commissioner’ means the Chief Industrial Commissioner or another Industrial Commissioner nominated by the Chief Industrial Commissioner.”. On 13 January 2004, the Gold Coast Convention and Exhibition Centre – Certified Agreement 2003 between the AWU and Jupiters Limited was certified in this Commission. This certification caused a flurry of activity in which the ALHMWU were unsuccessful in achieving a favourable result. Upon an examination of the file in connection with research which was undertaken for the purpose of determining the position of the ALHMWU in respect to the proposed Certified Agreement, it became apparent to the ALHMWU that the consequential orders altering the rules of the AWU were never made, notwithstanding that the demarcation order was made by consent, and the Full Bench so ordered. Consequently, ALHMWU sought to re-open the original proceedings to request the Commission to complete the proceedings by the making of appropriate orders to translate the demarcation orders made under s. 45 into the Constitution rule of the AWU. The question whether this Commission has jurisdiction to now deal with the matter is raised. This is because substantial changes to legislation have occurred since 1995. The nominated Commissioner to which the matter was referred was the then Chief Commissioner. The transcript records that on 24 April 1998, the Chief Commissioner said: “In the unusual circumstances of this matter it does seem to me that it might be appropriate to adopt the suggestion we adjourn the matter sine die. The position is, that this issue was before me on 21 August 1996, 17 September 1996, 15 October 1996, 23 March 1998 and now today 24 April 1998. It does seem to me that notwithstanding the Full Bench had not made a finding that it was not necessary to alter the rules, the point has been reached where I should not pursue the matter of whether that is necessary at all until such time as a party comes before me and asks that that be done.”. The suggestion that the matter be adjourned sine die was made by Mr Martin on behalf of the ALHMWU and supported by Mr Swan of the AWU. The parties were seeking legal opinion on the capacity of the Commission to change the rules of either organisation in the light of amendments to the Legislation in 1997 and that advice had not then been received. It would appear to me that there is no longer any machinery by which the indication of the Full Bench of 31 May 1995 can be achieved. It is clear that the original Full Bench did not have the power to alter the rules of the industrial organisations. Section 45 only gave to the Full Bench the power to make a demarcation order but the power to make alterations to the rules devolved on the nominated Commissioner, being the Chief Commissioner or another Industrial Commissioner nominated by the Chief Commissioner. The Full Bench made an order referring the matter to the Chief Commissioner and that was the only other order authorised by the section. -- 2 of 3 -- 28 May , 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 73 The power bestowed on the Full Bench was exercised. The power bestowed on the Chief Commissioner to alter the rules was not exercised at the behest of the parties. Since the passing of the Industrial Relations Act 1999, the office of Chief Commissioner was abolished. That Act came into force on 1 July 1999. The Commission was then constituted by a President, a Vice President, a Commissioner Administrator and at least 6 other Industrial Commissioners. There is now no entity that is empowered to carry out the function of the former Chief Commissioner even if some power remained for the Chief Commissioner to exercise. For those few reasons, this application must be dismissed. There was however an argument raised by the ALHMWU that s. 20 of the Acts Interpretation Acts 1954 applied so that the repeal or amendment of an Act does not affect a right, privilege or liability acquired, accrued or incurred under the Act or that a proceeding or remedy may be started, continued or completed and the right, privilege or liability may be enforced and the penalty imposed as if the repeal or amendment had not happened. It was submitted that the position in this case is closely comparable to the accrued right sought to be protected in the case of Ebser v Commonwealth (1992) 174 CLR 430 where it was said at para 21: “Section 8 of the Acts Interpretation Act (the Federal version of s. 20) protects anything that may truly be described as a right, ‘although that right might fairly be called inchoate or contingent’. .... This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s. 8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act.”. It was submitted that the “right” to have the orders perfected by varying the rules of the respective organisations was a right which had crystallized at the point when the Full Bench had made the demarcation orders and there was nothing contingent about the right. It was certain and required only administrative steps to be completed. Alternatively, it was submitted that there can be no suggestion of “contrary intention”, since subsequent enactments have not altered the powers relevantly exercised by the Commission and that the ALHMWU, at the very least, had the right to a hearing before the nominated Commissioner where it could press for the Rules to be altered. In respect of the first point, I do not agree that what was left to be done by the Chief Commissioner were only administrative steps. The Chief Commissioner was required to exercise his mind as to the alterations, if any, of the rules as, in his opinion, were necessary to reflect the order of the Full Bench. He was still to exercise an arbitral power. In respect of the alternative argument, when the Workplace Relations Act 1997 was enacted with a commencement date of 27 March 1997, s. 494 of that Act repealed the Industrial Relations Act 1990 with varying commencement dates in relation to different sections of the former Act with the effect that the Commission lost its power to alter the rules of an industrial organisation to reflect any demarcation orders made after 27 March 1997. Section 293 of the Workplace Relations Act 1997, in providing for orders about representation rights of employee organisations, failed to confer jurisdiction on the Commission to alter the rules of an organisation. While it may be argued that s. 514 of the Workplace Relations Act 1997 provided a means for the s. 45 proceeding to be completed, that means was lost when s. 514 was repealed by the Industrial Relations Act 1999. Furthermore, s. 279 of the Industrial Relations Act 1999 in providing for orders about representation rights of employee organisations similarly fails to confer jurisdiction on the Commission to alter the rules of an organisation. In these circumstances, it seems to me that the legislature has expressed a “contrary intention” that the so called “accrued right” carried forward to the present. Section 4 of the Acts Interpretation Act 1954 has the effect that s. 20 of that Act applies only in the absence of a contrary intention, similar to the provisions of the Federal version. In the case of Attorney-General (Queensland) and Another v Australian Industrial Relations Commission and Others (2002) 117 IR 52, where Ebser was distinguished, it was said at p. 64: “The operation of the presumption that accrued rights are unaffected by a repealing statute is, by s. 8 of the Interpretation Act, expressly subject to the appearance of a ‘contrary intention’. Therefore, where the provisions of a repealing statute are clearly inconsistent with the survival of accrued rights, those provisions are controlling, and any presumption erected by s. 8 is displaced.”. Thus it is my view that even if there can be said to have been an “accrued right” as at 31 May 1995, the passage of subsequent legislation reveals a contrary intention such that the provisions of the Acts Interpretation Act do not apply. For these reasons, I consider that the application should be dismissed. Order accordingly. D.R. HALL, President. A.L. BLOOMFIELD, Deputy President. B.J. BLADES, Commissioner. Hearing Details: 2004 3 March 6 May Appearances: Mr J. Nolan, Counsel, instructed by Ms T. Butler of Hall Payne Lawyers, for the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees. Ms Y. D’ath for The Australian Workers’ Union of Employees, Queensland. Released: 14 May 2004 -- 3 of 3 --