C2003/376, Transcript of Proceedings [2003] AIRCTrans 920 (19 March 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C2003/376
C2003/1074

APPEAL UNDER SECTION 45 OF THE ACT
BY W. JACOMB AGAINST A DECISION
OF THE DEPARTMENT OF INDUSTRIAL
RELATIONS AT MELBOURNE ON
8 JANUARY 2003 TO ISSUE A CERTIFICATE
OF RULE CHANGE - APPLICATION FOR STAY
ORDER

APPEAL UNDER SECTION 45 OF THE ACT BY
AUSTRALIAN MUNICIPAL ADMINISTRATIVE
CLERICAL AND SERVICES UNION AGAINST A
DECISION OF DEPUTY INDUSTRIAL REGISTRAR
AT MELBOURNE ON 24 FEBRUARY 2003
REGARDING NOTIFICATIONS LODGED UNDER
SECTION 214 AND SECTION 205 OF THE ACT -
FOR HEARING

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

BRISBANE

TUESDAY, 4 MARCH 2003

EXTRACT OF TRANSCRIPT OF PROCEEDINGS [2.00pm]

PN1

THE SENIOR DEPUTY PRESIDENT: I have before me two applications for leave to appeal, namely C2003/376, which is an appeal from the Registrar by Mr William Jacomb and I have also before me today, or listed before me today, C1074/2003, an appeal from the Registrar by the Australian Municipal Administrative Clerical and Services Union. There is one other appeal that is in my chambers, but not listed for today and that was an appeal from the Registrar by Mr William Jacomb. It's C6236/2002. That appeal relates to a refusal by the Registrar to extend the time in which Mr Jacomb could lodge an objection to the application for alteration of rules by the ASU. He was there seeking an extension of time until 31 January and the Registrar had, in fact, granted him an extension of time until 3 January.

PN2

So far as today's proceedings are concerned, I am considering an application by Mr Jacomb for a stay of the certificate issued by the Registrar in relation to the alteration of various rules of the ASU and also today I am considering the application by the ASU for leave to appeal against the decision of the Registrar refusing or failing to certify certain rule alterations and to grant requests for elections.

PN3

I have provided to the parties a written chronology of the events so far as they are identifiable from material on the files. The parties have given me indications of certain matters that had been omitted or needed correction and, subject to those corrections, I will, in my reasons for decision, rely on the chronology of events without repeating them here.

PN4

Section 81 of the Workplace Relations Act confers jurisdiction on the Commission to hear and determine applications for leave to appeal against certain decisions and acts of the Industrial Registrar or a Deputy Industrial Registrar in matters arising under the Workplace Relations Act. Similarly, the Commission is empowered to hear and determine appeals against the refusal or failure of the Industrial Registrar or Deputy Industrial Registrar to make a decision or to do an act as required by the Workplace Relations Act.

PN5

The Commission may, under section 81, order that the operation of any decision order, act or omission of the Industrial Registrar or a Deputy Industrial Registrar be stayed pending a determination of an appeal or until further order. In dealing with an application for a stay, I must be satisfied that there is an arguable case made out to demonstrate that the applicant, upon the hearing of the substantive matter, has some prospect of success. I must also be satisfied that the balance of convenience favours the grant of a stay order.

PN6

The ASU application for leave to appeal was brought on as a matter of urgency, given the intention to call for nominations for the conduct of elections in accordance with the rules of the organisation. Those nominations are to be called on the first Wednesday in March which in this case would, in fact, be 5 March 2003. In considering the ASU appeal against the refusal or failure of the Industrial Registrar to consider the notices for elections in the relevant branches, it became evident to me, as a matter of practicality, the appeal could not be considered in isolation from Mr Jacomb's application for a stay of the decision of the Deputy Industrial Registrar certifying the relevant rule alterations.

PN7

Thus, there are potentially two principal issues for me to determine today: namely, whether the decision of the Deputy Industrial Registrar to certify the rule alterations on 8 January 2003 is arguably wrong and, if so, whether its operation ought, as a matter of convenience, be stayed; and, secondly, if the decision of 8 January is not arguably wrong or is not favoured by the balance of convenience to grant a stay order, whether leave to appeal should be granted to the ASU to appeal the refusal or failure of the Registrar to consider its request for the conduct of elections in respect of the relevant branches and the associated rule alterations.

PN8

Mr Jacomb has advanced a number of grounds of appeal in respect of the decision of the Registrar on 8 January. I have today, or he has today, agreed that grounds of appeal as identified from his submissions in relation to the ASU appeal namely Jacomb 1 are three in number. Firstly, the rules are sexually discriminatory and contrary to law. Secondly, the rules fail to make provision for the manner in which persons may become candidates for election contrary to the requirements of section 197 of the Workplace Relations Act and a denial of natural justice. In the course of identifying those grounds of appeal with Mr Jacomb, he in fact identified several other grounds of appeal which he had in fact set out in writing in another document, and they basically may be summarised as contentions that the rules of the ASU are contrary to the objection of the Act generally, contrary to the objects of part 9 of the Act, contrary to section 196, 197 and 195 specifically.

PN9

In support of the first ground of appeal, namely the rules are sexually discriminatory and contrary to law, Mr Jacomb argued that no exemption from the operation of the Sexual Discrimination Act has ever been granted to the ASU or is currently in force. The ASU does not have a certificate from the Federal Court under section 7(d) of the Discrimination Act 1984. Thirdly, rule changes certified by the Deputy Industrial Registrar are contrary to law in that they discriminate unlawfully against male members of the union and the holding of an election under the current certified laws will constitute an act prohibited by law.

PN10

Mr Jacomb admitted that it is unlawful under section 19 of the Sexual Discrimination Act 1984 as amended for a registered organisation to discriminate against a person on the basis of sex by, amongst other things, denying the member access or limiting the member's access to any benefit provided by the organisation, by depriving the member of membership or varying the terms of membership or by subjecting the member to any other detriment. In this regard Mr Jacomb referred me to a decision of Deputy President Moore, now Moore J. That was the decision of Moore J - sorry, Deputy President Moore, as he was then, in the Municipal Officers Association of Australia v the Australian Transport Officers Federation and another print J6670.

PN11

Mr Jacomb contended that the Commission has already determined that rules equivalent to those of the ASU were discriminatory and by implication currently certified rules of the ASU are discriminatory. The essence of the argument is that by virtue of their sex male members of the ASU cannot participate in an election relating to a position within the organisation. It is a position which forms part of a body that can determine matters of policy concerning the organisation or a branch, including policy affecting male members. Even though male members may participate in the election of all other members of that body their rights are more limited than those of females in determining who sits on that body.

PN12

Furthermore as I understand the argument their rights to be elected, that is the rights of male members to be elected to sit on the body, are also more limited. In the circumstances male members are, on the grounds of their sex, denied access to a benefit in relation to the particular position. In other words looking at the election of the body as a whole the access of men to a benefit is more limited. The relevant benefit is said to be the right to stand and to vote which is provided by the organisation through its rules.

PN13

Mr Jacomb submitted that there is no provision in the Workplace Relations Act sanctioning discriminatory provisions in rules of organisations such as that which existed in section 33 of the previous Act. Mr Jacomb next argued that article 4 of the International Convention on elimination of all forms of discrimination against women only authorises temporary special measures but shall in no way entail as a consequence the maintenance of unequal or separate standards. These measures are to be continued when the objectives - or are to be discontinued when the objectives of equality of opportunity and treatment have been achieved.

PN14

Mr Jacomb submitted that it is evident when having regard to current membership of the various elected bodies of the Australian Services Union by females and their current membership of the Australian Services Union that the need for equality in fact as well as in law has been achieved. The further submission of Mr Jacomb, as I understand it, was to the effect that the evidence advanced to gain an exemption before Deputy President Moore was without foundation. This final submission seems to be based on a misconception about the ASUs role in the proceedings before Deputy President Moore because the ASU at that time, in fact, took no part in those proceedings.

PN15

In light of the submissions made by Mr Jacomb and the reply made by the ASU through Miss Heap it is well that I set out the provisions of section 7(d) of the Sex Discrimination Act. It provides that:

PN16

A person may take special measures for the purpose of achieving substantive equality between; (a) men and women, or (b) people of different marital status, or (c) women who are pregnant and people who are not pregnant, or (d) women who are potentially pregnant and people who are not potentially pregnant.

PN17

Sub-paragraph 2 says:

PN18

A person shall not discriminate against another person under section 5, 6 or 7 by taking special measures authorised by sub-section 1.

PN19

That is an important provision because it, in fact, deems differentiation between those groups of people as being not discriminatory. Sub-section 3 reads:

PN20

A measure is to be treated as being taken for the purpose referred to in sub-section 1 if it is taken, (a) solely for that purpose, or (b) importantly for that purpose as well as other purposes whether or not that purpose is the dominant or substantial one.

PN21

4:

PN22

This section does not authorise the taking or further taking of special measures for a purpose referred to in sub-section 1 that is achieved.

PN23

I accept the substance of the submissions of Miss Heap that the submissions made by Mr Jacomb are fundamentally flawed and based on a misconception of the operation and effect of section 7(d). It seems to me that the Amendment Act that repeals section 33, which was a section to which Mr Jacomb referred in some detail in relation to the decision of Deputy President Moore, as he then was - when it repealed section 33 the special measures provision then - it replaced it with another provision which is designed, as I understand it, to do two things.

PN24

The first thing that it provides for is that so-called special measures are not discriminatory. The second thing that it does is it makes clear that the section's protection is not limited to measures to ensure equality of opportunity. The focus has been expanded, in my view, to encompass measures, the purpose of which is to achieve substantive equality. That seems to be evident from the various documentation that has been published by the Human Rights and Equal Opportunity Commission. And I think it's necessary to make this - or to recognise these factors in determining issues such as the one that is before me at the present time.

PN25

In my view Mr Jacomb has not satisfied me on any factual basis or legal principle that there is an arguable case in relation to the claims he makes in relation to the discriminatory effect of the rules given the deeming provision of section 7(d) to which I have referred. Turning then to the argument that the rules fail to make provision for the manner in which persons may become candidates for election Mr O'Sullivan, in addressing me on this particular issue, took the Commission to the rules that actually provide for the conduct of elections, namely rules 37 to 43, and they deal with the issue of elections in their entirety, including the manner in which persons may become candidates for election.

PN26

I'm not satisfied that Mr Jacomb has established a prima facie or an arguable case in relation to that issue. On the issue of natural justice I am satisfied that that matter was dealt with by Vice President Ross on a previous occasion and it seems to me that the matter was there corrected in as much as Mr Jacomb at least acquiesced in the course that was then proposed by Vice President Ross to address his grievances. As to the other matters that have been raised by Mr Jacomb concerning the objects of the Act and the objects of part 9, I am not satisfied that there is an arguable case in relation to those matters.

PN27

In determining these matters today I should record that these matters of necessity have been argued without evidence and not fully argued to the extent that they would be in the course of a full and proper hearing at which time the parties will have an opportunity to adduce any evidence that they would wish to rely on - relative evidence, that is, in relation to the matters that need to be resolved. Therefore in making this decision I'm making it simply on the basis of the material that has been put before me today, however, as I say, there is no evidence before me to establish an arguable case nor is there any legal principle in my view that would satisfy me as to an arguable case.

PN28

Even if I was satisfied that there was an arguable case then I would not be prepared to make an order for a stay in proceeding 376 because I don't consider that it would be appropriate to do so, that is there is - the balance of convenience is not in favour of granting a stay. In relation to the appeal by the ASU against the decision of the Registrar let me say first of all that the actions or conduct of the Deputy Industrial Registrar is entirely understandable given that there was on foot an application for a stay which was yet to be decided at the time that the Deputy Industrial Registrar was called upon to make a decision in relation to those rule alterations and in relation to the elections.

PN29

I don't consider that the Deputy Industrial Registrar erred in having regarded those factors. In fact, I think it was a relevant consideration for him in all of the circumstances. However, now that the question of a stay has been determined it seems to me that there is no impediment to the Registrar dealing with those matters in issuing the necessary certificates for the rule alterations and the conduct of the elections. And, in fact, I would direct that that course be taken at the earliest possible opportunity.

END OF EXTRACT