Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees v The Queensland Public Sector Union of Employees & Anor [2003] ICQ 19 (2003) 173 QGIG 481

481 Vol. 173 FRIDAY, 13 JUNE, 2003 No. 6 ####################################################################################################################### # INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(1) – appeal against decision of industrial commission Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees and The Queensland Public Sector Union of Employees and WorkCover Queensland (No. C32 of 2003) WORKCOVER QUEENSLAND – CERTIFIED AGREEMENT 2003 PRESIDENT HALL 2 June 2003 DECISION On 12 February 2003, the first respondent and the second respondent filed an application for certification of the WorkCover Queensland – Certified Agreement 2003 (“the Agreement”). The proposed Agreement was of the type mentioned in s. 142(1)(a) and (b)(i), i.e. an agreement between the employer and an employee organisation entitled to represent some or all of the employees to be covered by the Agreement. Subject to a presently irrelevant exception at s. 156(2), it is the effect of s. 156(1)(j)(i) that the Queensland Industrial Relations Commission lacked power to certify the proposed Agreement unless satisfied that “each employee organisation that is bound by the award or industrial agreement that binds the employer ….. is -- 1 of 3 -- 482 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 June, 2003 a party to the agreement.”. The awards and industrial agreements binding the employer were set out at Schedule “A” of the proposed Certified Agreement. The Awards included the WorkCover Queensland Award – State. It is common ground on this appeal that the WorkCover Queensland Award – State does indeed bind the employer, viz the second respondent. It is also common ground that the Award binds the first respondent. The matter in dispute, both at first instance and on the appeal, is whether the Award binds the appellant. By s. 124(1)(c) an award binds “all organisations concerned with the calling to which the award applies”. The appeal has been argued on the basis that an organisation is “concerned” with a calling if the calling falls within the organisation’s registered list of callings. I propose to deal with the matter on the basis upon which it was argued, leaving for another day the issue whether “concern” imports an element of interest (in fact) in the calling. The noun “calling” is defined by the dictionary at Schedule 5 to the Industrial Relations Act 1999. It is defined to mean (not include) – (a) a craft, manufacture, occupation, trade, undertaking or vocation; or (b) a section of something mentioned in paragraph (a). It is the contention of the first respondent that the calling to which the Award applies is the “undertaking” of the second respondent. I think that the Award does apply to the undertaking conducted by the second respondent. But it also applies to the “crafts”, “trades” and “vocations” pursued by the employees of the second respondent whose conditions of labour are fixed by the Award. At all times this matter has proceeded on the assumption that at least some of the employees within the classification administrative officer level 2 are engaged in the calling of a “clerk”, i.e. this is not a case in which is being argued that all of those at level 2 are “administrators” rather than “clerks”. It follows that the Award does apply to the calling of “clerk” or, more precisely, that section of the calling “clerk” pursued within the undertaking of the second respondent. The critical issue is whether the calling of “clerk” when pursued within the undertaking of the second respondent is a calling within the registered list of callings of the appellant. The registered list is as follows: “Persons, male and female, employed either wholly or partially in the pursuit or vocation of writing, engrossing, typing and/or calculating, whether by ordinary means or by means of any process or machine calculated to achieve a like result; and/or invoicing, billing, charging, checking or otherwise dealing with the records, writings, correspondence, books and accounts of any person, firm, company, association, or local authority, employed in trading, receiving, or recording, or in any other clerical capacity whatsoever; and switchboard attendants; superintendents, inspectors, canvassers and/or collectors employed by life insurance companies and/or fire and accident companies operating in the State of Queensland, funeral benefit canvassers and/or collectors.” (Emphasis added) Of the words emphasised, the appellant relies upon “in any other clerical capacity whatsoever”. From my part, if those words stood alone, I would hold that the clerical employees of the second respondent at level 2 were pursuing a calling falling within the appellant’s list of callings. The cases on “clerical capacity” have gone so far as to make any contrary submission impossible to sustain, see in Re Accountants and Secretaries Professional Officers’ Association of New South Wales [1955] AR (NSW) 505 at 518 to 519, Re: Federated Clerks’ Union of Australia, New South Wales Branch, and Australian Workers’ Union [1971] AR (NSW) 419 at 421 per Sheldon J and Joyce v. Christoffersen (1990) 26 FCR 261 at 270 to 273 per Gray J. The respondents rely upon the other words which have been emphasised, viz “of any person, firm, company, association, or local authority”. It is contented that those words qualify the words “in any other clerical capacity whatsoever” as well as the words which precede the words “of any person, firm, company, association, or local authority”. It is then submitted that the second respondent’s undertaking cannot be brought within the words “person, firm, company, association or local authority”. (For completeness I should add that it is common ground that the words “employed in trading, receiving, or recording”, do not attach to the words “person, firm, company, association or local authority” but relate back to the introductory words “persons, male and female”). To read the registered list of callings in the manner contended by the respondents does some violence to the ordinary tenents of English grammar. It is however accepted that the eligibility rules of federally registered industrial organisations are not to be construed narrowly, nor as though they had been crafted by skilled legal technicians, but are to be approached on the assumption that they are likely to have been drafted “by union officials more familiar with the practical affairs of industry than with the niceties or subtle nuances of language”, The Queen v. Aird; ex parte The Australian Workers’ Union (1973) 129 CLR 654 at 659 per Barwick CJ. Since, like federal eligibility rules, registered callings under the Industrial Relations Act 1999 constitute a reference point for determining an industrial organisation’s coverage, compare The Queen v. Williams; ex parte The Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 153 CLR 402 at 408 per Gibbs CJ, Mason, Wilson, Brennan, Dean and Dawson JJ, Murphy J dissenting, it seems to me to be appropriate to approach the construction of a registered list of callings in the same way as the construction of federal eligibility rules is approached. Construing the appellant’s registered callings on that basis, the conclusion seems to me to be inescapable that the submissions of the respondents are correct. The words “any person, firm, company, association or local authority” are plainly words of limitation. If they do not qualify the words “or in any other clerical capacity whatsoever” they do not qualify the scope of the appellant’s callings at all. Every activity falling within the words which precede “of any person, firm, company, association or local authority” also falls within the words “or in any other clerical capacity whatsoever”. The history of the appellant’s registration does not assist in the construction of its callings. It is common ground that the appellant is the outcome of an amalgamation process involving, inter alia, the Federated Clerks’ Union of Australia (Central and Southern Queensland Branch). That industrial organisation was itself the product of an amalgamation between the Federated Clerks’ Union of Employees of Australia, Queensland Branch and the Queensland Life and Fire Insurance Employees. At the time of the amalgamation in 1946 the then Act, the Industrial Conciliation and Arbitration Act (1932), did not make the elaborate provision for amalgamation presently made by the Industrial Relations Act 1999. In particular, no provision was made to assist amalgamations which did not generate a coverage greater than the aggregated coverage of the parties to the amalgamation. In practice, to amalgamate, industrial organisations sponsored the registration of a new industrial organisation. (It is not necessary here to explore the conceptual difficulties with the practice. It is sufficient to notice that the practice existed and was authorised by s. 34 of the Act.). The callings which are at issue on this appeal originated with the birth of the new organisation. The registered callings of The Federated Clerks’ Union of Employees of Australia, Queensland Branch were: “clerks employed in all offices including Government offices and including Stenographers and Typists, Telephone Switchboard Attendants, Librarians and assistants in public libraries, Superintendents and/or Inspectors employed by Life Assurance Companies and Fire and Accident Insurance Companies operating in the State of Queensland”. As a matter of first impression one might have thought that the purpose of the reformulation of the callings was to restrict the coverage of the new Union. But the formulation in the callings of the new Union of The Federated Clerks’ Union of Australia, Queensland Branch (which are the current callings) was always in the constitution rule. The change of 1946 may have been no more than housekeeping. To understand the further submission that the second respondent is not relevantly a “person, firm, company, association or local authority”, it is necessary to say something of the legislative history of the second respondent. It is not necessary to go back beyond 1990. At that time pursuant to the Workers’ Compensation Act 1990 the Workers’ Compensation scheme in Queensland was administered by the Workers’ Compensation Board of Queensland. The employees who administered the scheme on behalf of the Board -- 2 of 3 -- 13 June, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 483 were employees of the Workers’ Compensation Division of the former Department of Training and Industrial Relations, and were, pursuant to the Public Service Management and Employment Act 1988 and (later) the Public Service Act 1996, officers of the public service. Once the WorkCover Queensland Act 1996 commenced operation those public service officers were transferred to the employment of WorkCover, and, upon such transfer, ceased being officers of the public service, see s. 538. WorkCover Queensland itself was established as a body corporate with perpetual succession, with a common seal and with power to sue and be sued in its corporate name, s. 331. By s. 332(1) WorkCover Queensland represents the State. I am told from the bar table, and it is not disputed, that in fact WorkCover Queensland has not been registered under the Corporations Law. It is difficult to treat such an entity such as WorkCover Queensland as a “person, firm, company, association or local authority”. The appellant places great reliance upon the noun “person”. It is true that the Acts Interpretation Act 1954, s. 36 defines “person” to include a body corporate. But the appellant’s registered callings are neither an Act of Parliament nor a statutory instrument to which, by the Statutory Instruments Act 1992, provisions of the Acts Interpretation Act 1954 are applied. In any event, the presumption within the Acts Interpretation Act 1954 is “very much a “context” provision”, see D. C. Pearce and R. S. Geddes, Statutory Interpretation Australia, 5 th edition at para 6.53. If “person” includes “a body corporate” the references to “company” and “local authority” have no work to do. One must acknowledge that those who are not legal technocrats may well pen formulations with otiose elements but it is, I think, more likely that “person” was being used in the non-technical sense of a natural person. It is difficult to accept that an author who knew that “person” could include a body corporate would be unaware that companies and local authorities are bodies corporate. In the premises I am satisfied that the Award did not bind the appellant and that there was no bar to the registration of the Certified Agreement. I dismiss the appeal. Neither of the respondents seeks costs. Dated 2 June 2003. D.R. HALL, President. Released: 2 June 2003 Appearances: Mr R. Reed directly instructed for the appellant. Mr J. Merrell instructed by Quinlan, Miller & Treston, Solicitors, for the first respondent. Mr T. Bradley instructed by Corrs Chambers Westgarth for the second respondent. -- 3 of 3 --