Australian Liquor, Hospitality and Miscellaneous Workers’ Union, Queensland Branch, Union of Employees [2004] QIRC 44 (2004) 175 QGIG 1046

1046 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 19 March, 2004 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 125 – application to amend award Australian Liquor, Hospitality and Miscellaneous Workers’ Union, Queensland Branch, Union of Employees (No. B1033 of 2003) SECURITY INDUSTRY (CONTRACTORS) AWARD – STATE PRESIDENT HALL 9 March 2004 COMMISSIONER ASBURY COMMISSIONER THOMPSON Power to direct who parties to proceedings are – Industrial Relations Act 1999 s. 329(b)(i) – Proposed amendment to original application – Potential for alteration to scope of award – Organisation may suffer direct detriment as a result of an order of the Commission – Sufficient to warrant exercise of discretion to make organisation party to proceedings. REASONS FOR DECISION By way of an application filed on 24 June 2003 (B1033 of 2003) the Australian Liquor, Hospitality and Miscellaneous Workers’ Union, Queensland Branch, Union of Employees (ALHMWU) sought to amend the Security Industry (Contractors) Award – State with respect to traffic controllers. By an ex tempore decision of 7 November 2003, The Australian Workers’ Union of Employees, Queensland (AWU) was granted leave to be heard in B1033 of 2003 pursuant to s. 329(b)(v) of the Industrial Relations Act 1999 (the Act). We also decided at that time that it would be premature to determine that the AWU be made a party to the proceedings, and that this matter could be revisited in final submissions. In the meantime submissions and evidence of the AWU would be heard and the AWU would be permitted to cross-examine witnesses. -- 1 of 2 -- 19 March, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1047 On 24 November 2003 in opening submissions, the ALHMWU referred to an amendment to the application in B1033 of 2003 filed on 6 October. That amendment sought to include a definition of “traffic controller” in the Security Industry (Contractors) Award – State. The AWU sought an adjournment of proceedings on the basis that it had not been advised of the proposal by the ALHMWU to amend its application and that the amendment fundamentally altered the nature of the application. We granted the adjournment sought by the AWU on the basis that we were not satisfied that there was sufficient notice of the amendment and that the amendment fundamentally altered the nature of proceedings in B1033 of 2003. Further, we were of the view that the amended application would require a revisiting of the basis of the AWU’s participation in these proceedings. At a directions hearing on 15 December 2003 the AWU indicated that it would be seeking to make detailed submissions in support of being made a party to the proceedings. On 9 February 2004 we heard submissions from the parties and the AWU on this issue. By a further ex tempore decision, we determined that the AWU would be made a party to B1033 of 2003. We now provide our reasons for that decision. The Commission has power under s. 329(b)(i) to direct who are the parties to proceedings. Whether or not it is appropriate for a party to be given leave to intervene is essentially a discretionary matter for the tribunal to which the application is made: Re Public Hospitals Employees Award – State (1988) 129 QGIG 46 per Moynihan J. In R v Ludeke & Ors; Ex parte Customs Officers Association of Australia, Fourth Division (1986) 15 IR 252 it was held that an organisation with eligibility rules not covering the employees in question, does not have a direct interest in proceedings for an award which only covers members of the other organisation despite the fact that the organisations concerned are disputing the coverage of the relevant employees. Ludeke (supra) is also authority for the propositions that: • a person whose rights will be directly affected by an order of the Commission must be given a full and fair opportunity to be heard before the order is made; and • natural justice does not invariably require that everyone who may suffer some detriment as an indirect result of an order of the Commission is to be heard before the order is made. Here the application as originally filed sought to amend the Security Industry (Contractors) Award – State to provide certain benefits to traffic controllers on the basis of those provided under certain certified agreements. The ALHMWU through the proposed amendment to the application now seeks to insert a definition for “traffic controllers” in that Award. By s. 320(3) of the Act the Commission is to be governed in its decisions by equity, good conscience and the substantial merits of the case, having regard to the interests of the persons immediately concerned and the community as a whole. In our view the insertion of a definition of “traffic controller” has the potential to alter the scope of the Security Industry (Contractors) Award – State. Any such alteration would in all probability have a direct impact on the scope of the Civil Construction, Operations, Maintenance and General Award – State, an Award held by the AWU. The potential for such an outcome is sufficient for us to hold that the AWU would suffer detriment as a direct result of an order of the Commission in B1033 of 2003. That detriment would go beyond a dispute over coverage of employees, and impact on an award of the organisation of employees seeking to be party to these proceedings. Every consideration of fairness leads to the same result. Accordingly, the exercise of our discretion under s. 329(b)(i) to direct that the AWU be a party to that proceeding is warranted in the circumstances of this case. D.R HALL, President. I.C. ASBURY, Commissioner. J.M THOMPSON, Commissioner. 2003 8 August 16 and 29 September 6, 7 and 24 November 15 December 2004 9 February Released: 9 March 2004 Appearances: Mr K. Crank for the Australian Liquor, Hospitality and Miscellaneous Workers’ Union, Queensland Branch, Union of Employees. Ms T. Krarup, Ms Y. D’Ath and Mr C. Simpson for The Australian Workers’ Union of Employees, Queensland. Mr C. Pollard, Jones Ross for the Building Service Contractors’ Association of Australia – Queensland Division, Industrial Organisation of Employers. Mr P. Knight, Mr O. Heather and Mr S. Pawlowski for the Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers. Mr A. Geaney of Traffic Services Australia for Michad Pty Ltd, Nadebene Pty Ltd, Queensland Traffic Controllers, Rural Traffic Service Pty Ltd, S & J Traffic Service Pty Ltd, SMG Security Pty Ltd, Traffic Control (Australia) Pty Ltd, Traffic Control (Metro) Pty Ltd, Traffic Control (Queensland) Pty Ltd, Traffic Manpower Pty Ltd, Traffic Services Australia Holdings Pty Ltd and United Protection Services Pty Ltd. Mr J. Reibelt for Acquired Awareness Security Services and Traffic Management. Mr S. Stamatopoulos for Eagle Aviation trading as Peko Security. -- 2 of 2 --