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Australian Industrial Relations Commission |
Dec 431/91 S Print J7763
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1988
s.118 notification of demarcation dispute
s.118A application for organisation coverage
The Federated
Ironworkers' Association of Australia
and
The Amalgamated Metal
Workers' Union
and
Electrical Trades Union of Australia
(C No. 25295 of 1989)
Metal workers Aluminium industry
DEPUTY PRESIDENT MOORE SYDNEY, 30 MAY 1991
Industrial unions - eligibility for membership
- representative rights -
demarcation dispute - s.118A Industrial Relations Act 1988 - pending
demarcation dispute referred to DPM - proper construction of s.118A considered
- rules of FIA, ETU and MEWU altered to
reflect order of Full Bench.
DECISION
On 22 January 1990, a Full Bench made orders(1) (operative
from
15 December 1989) under what was then s.118 of the Industrial Relations Act
1988 (IR Act) concerning the representative rights of certain organisations in
relation to employees of Southern Aluminium Pty Ltd. In
the decision(2) of
15 December 1989 leading to the orders the Full Bench indicated that they were
not satisfied that no alterations
were necessary to the rules of The Federated
Ironworkers' Association of Australia (FIA), The Amalgamated Metal Workers'
Union
(AMWU) and the Electrical Trades Union of Australia (ETU) (see s.118(6)).
Accordingly, the Full Bench referred to me, as a designated Presidential
Member, C No. 25295 of 1989 being a pending demarcation
dispute between FIA,
AMWU and ETU.
The orders the Full Bench made were in the following terms:
"1. The Federated
Ironworkers' Association of Australia (FIA) has, by
force of this order, the right to represent under the Act the industrial
interests of all those persons employed and to be employed as production
team members by Southern Aluminium Pty Ltd
at Bell Bay, Tasmania, who are
eligible for membership of the FIA, to the exclusion of all other
organisations.
2. The FIA has, by force of this order, the right to represent under
the Act the industrial interests of all those
persons employed and to be
employed as production team members by Southern Aluminium Pty Ltd at Bell
Bay, Tasmania,
whose industrial interests under the Act the FIA has not
hitherto had or would not, but for this order, have the right to
represent.
_______________________________________________________________________________
(1)Print J1223
(2)Print J0381
3. The Amalgamated Metal Workers' Union and the Electrical Trades
Union of Australia
do not have the right to represent under the Act the
industrial interests of any person employed and to be employed as
production team members by Southern Aluminium Pty Ltd at Bell Bay,
Tasmania who hitherto have been eligible for membership
of those
organisations or either or them."
In December 1989, I listed the matter for hearing (on 19 January 1990)
as
required by regulation 12 for the purpose of hearing submissions as to what
should be done under s.118(7). I was informed at that hearing that Gaudron J
had issued an order nisi in relation to the orders of the Full Bench. AMWU was
seeking
writs of certiorari and prohibition from the High Court. Her Honour
issued an order staying the determination of the matter under
s.118(7).
The rule nisi was discharged by consent on 9 April 1991 and the matter
was listed for further hearing on 29 April 1991.
In the meantime, s.118 had been repealed by the Industrial Relations
Legislation Amendment Act 1990 (the 1990 amendment Act). Subsection 10(1) of
the 1990 amendment Act substituted the following for s.118:
"118 In exercising its powers in relation to a demarcation
dispute, the
Commission:
(a) must consider whether it should consult with appropriate peak
councils that are representative of organisations
representing employees or organisations representing
employers; and
(b) may consult with appropriate peak councils and, where it does
so, must inform the parties to the dispute of any views
expressed by those peak councils.
118A
(1) Subject to this section and subsection 202(3), the Commission
may, on the application of an organisation, an employer
or the Minister,
make the following orders:
(a) an order that an organisation of employees is to have the
right, to the exclusion of another organisation or other
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 that an 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 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) In considering whether to make an order
under subsection (1),
the Commission:
(a) must consider whether it should consult with appropriate peak
councils that are representative of organisations
representing employees or organisations representing
employers; and
(b) may consult with appropriate peak councils and, where it does
so, must inform the parties to the proceedings under this
section relating to the order of any views expressed
by those
peak councils; and
(c) must have regard to any agreement or understanding of which
the Commission becomes aware that deals with the right of an
organisation of employees to represent
under this Act the
industrial interests of a particular class or group of
employees.
(3) An order under subsection (1) may be subject to conditions or
limitations.
(4) The powers
of the Commission under this section are
exercisable only by a Full Bench or Presidential Member.
(5) Where
the Commission makes an order under subsection (1), the
Commission must refer the matter to a designated Presidential Member
unless the Commission is satisfied that the rules of the organisations
concerned do not need to be altered.
(6) Where a matter is referred to a designated Presidential
Member under subsection (5), the Presidential Member
must, after giving
each organisation concerned an opportunity, as prescribed, to be heard,
determine such alterations
(if any) of the rules of an organisation
concerned as are, in the Presidential Member's opinion, necessary to
reflect
the Commission's order.
(7) An alteration of the rules of an organisation determined
under subsection (6)
takes effect on the day on which the determination
was made."
Subsections 10(2) and (3) of the 1990 amendment Act require that orders
made under s.118 in its original form be treated as having been made under
s.118A and that matters being dealt with under s.118 in its original form be
dealt with under s.118A.
The issues I must
deal with are:
(i) What is the nature of the discretion I have under s.118A(6).
(ii) Should alterations be made
to the rules of FIA, AMWU and ETU to
reflect the orders of the Full Bench and if so what should be the terms of the
alterations.
The first issue concerns the proper construction of s.118A(6). FIA
submitted that when an order has been made under s.118A
either granting or
removing representative rights which is incompatible with the eligibility rules
of the organisation the subject
of the order, the designated Presidential
Member is obliged to alter those rules. The only discretion the Commission has
is as
to the terms of the alterations. AMWU submitted that even in these
circumstances the Commission has a discretion as to whether the
eligibility
rules should be altered at all.
I have already discussed this issue in Re National Union of Storeworkers,
Packers, Rubber and Allied Workers(3) though I did not express a concluded view
in that decision and it concerned s.118 before its
repeal by the 1990 amendment
Act.
The power to make orders under s.118 in its original form was clearly for
the purpose
of preventing or settling demarcation disputes which were defined
in s.4. Subsection 118(3), which invested the Commission with the power to make
representational orders, was prefaced by the following:
"(3) Without limiting the powers of the Commission in relation to
demarcation disputes, the Commission may, for
the purpose of preventing
or settling a demarcation dispute, . . . make one or more of the
following orders:" (my emphasis).
Section 118A contains no such express identification of the purposes for
which the powers arising under that section may
be used. The powers are,
however, the same though expressed in slightly different language. Further, the
provisions of s.118 substituted
by the 1990 amending Act deal expressly with
demarcation disputes and require the Commission to consider what involvement
peak
councils (as defined) should have in the settlement of a demarcation
dispute. A similar requirement concerning the involvement of
peak councils is
repeated in s.118A(2). The repetition of this provision provides some
indication that s.118 and s.118A deal with
different subject matters as
s.118A(2) is unnecessarily repetitious of s.118 only if they deal with the same
subject matter.
However there is no express prohibition in s.118A on the use of the
powers arising under that section to prevent or settle
demarcation disputes and
having regard to the types of order that might be made it clearly might be used
for that purpose unless
such a prohibition is to be implied.
Section 118A was introduced at a time when the following object was added
to the objects
of the Act contained in s.3:
"(k) to encourage and facilitate the development of organisations,
particularly by reducing the number of organisations
that are in an
industry or enterprise".
It is reasonably clear that the power in s.118A is given to the
Commission,
at least in part, to facilitate the achievement of that object.
The meaning of the expression "the development of organisations"
is not
clear though there is no obvious logical connection between the development of
organisations and the reduction of the number
of organisations in an industry
or enterprise unless the expression "the development of organisations" is
treated as a reference
to the process by which the existing web of registered
organisations is rationalised. This, in my view, is what is intended by the
object.
Section 118A provides the mechanism by which this can occur and it may be
apparent to the Commission that it is
necessary to alter representative rights
whether or not a demarcation dispute exists or is likely. That is not to say,
however,
that the power might not be used to settle a demarcation dispute.
Notwithstanding what I earlier said about s.118 and s.118A(2)
I do not consider
_______________________________________________________________________________
(3)Print J6390
that some
prohibition should be implied on the circumstances in which or the
purpose for which an order may be made under s.118A(1). If, for
example, a
demarcation dispute exists or is pending an order might be made for the purpose
of reducing the number of organisations
in an industry or enterprise and in so
doing have the immediate purpose and effect of settling or preventing the
demarcation dispute.
This is evident not only from the nature of the powers arising under
s.118A but also a change to the definition of demarcation
dispute made by the
1990 amendment Act when the following was added to the definition:
"or (c) a dispute about the representation
under this Act of the
industrial interests of employees by an organisation of employees."
A dispute of this character
can clearly be settled or prevented by making
orders under s.118A.
The reason I have discussed the nature and purpose of
the power arising
under s.118A(1) is that the role of a designated Presidential Member under
s.118A(6) has to be viewed as part
of a scheme involving the prior exercise of
that power by, in the ordinary course, another member of the Commission.
Both
under s.118(7) in its original form and under s.118A(6), the
function of a designated Presidential Member is limited and is supplementary
to
and consequential upon orders having been made under, for present purposes,
s.118A(1). Those orders will have been made to facilitate
or promote the
development of organisations which may have been done to reduce the number of
organisations in an industry or enterprise
and/or to settle a demarcation
dispute. They are likely to have been made, if contested, after considerable
evidence and submissions.
The eligibility rules of organisations generally define the class of
employee which it may represent under the IR Act.(4)
An organisation may be
granted a right to represent a class to the exclusion of other organisations
under s.118A(1)(a) when it
already has existing coverage under its eligibility
rules. Such an order would be compatible with the rules of the organisation
and
they would not require alteration. However an organisation may be deprived, by
an order made under s.118A(1)(c), of the right
to represent a class
comprehended by the existing eligibility rules or granted, by an order made
under s.118A(1)(b), the right
to represent a class which is not comprehended by
the existing rules.
If orders are made it is then necessary for the member
or Full Bench to
determine whether they were "satisfied that the rules of the organisations
concerned do not need to be altered"
as required by s.118A(5). This subsection
may describe a process where the member who made the orders must assess
whether, in relation
to an order which is incompatible with the existing
eligibility rules, it is desirable that the further step should be taken of
referring the matter to a designated Presidential Member. If this step is
taken it may result in the eligibility rules being altered
(by expansion or
reduction) to make them compatible with the order. Section 118A(5) may, on the
other hand, simply require that
the member who made the orders assess whether
the eligibility rules are compatible with the orders and if not then refer the
matter
to a designated Presidential Member.
_______________________________________________________________________________
(4)see e.g.,
R. v. Williams, Ex parte Australian Building Construction
Employees' and Builders Labourers Federation [1982] HCA 68; (1982) 153 CLR 402 at 408
I see no reason to treat s.118A(5) as having the second and more limited
meaning. While the member of the Commission
making the order may think it is
unnecessary to refer the matter to a designated Presidential Member because of
the form of the
order that has been made, there may well be other reasons why
it might not be necessary to refer the matter. The order may relate
to a
limited class of employees or the order may have a limited life. An order may
be made, for example, in relation to a particular
building site that concerns
employment of particular callings in the building operations. It may be thought
by the member of the
Commission who makes the order that it is unnecessary that
the order be reflected in the rules. The order may also not operate until
certain conditions are met or may cease to operate if certain conditions have
been satisfied. The imposition of such conditions
is contemplated by s.118A(3).
In these situations the Commission may decide that it is not necessary to take
the step of referring
the matter to a designated Presidential Member even if
the representative order is incompatible with the eligibility rules.
This leads to a consideration of the powers of the designated
Presidential Member under s.118A(6). The substance of the function
under that
subsection is to determine the alterations to the rules that are necessary to
reflect the orders made under s.118A(1).
Expressed this way there could be
little doubt that the function does not permit of a discretion to alter or not
alter the rules
when the order is incompatible with them. But the language of
the subsection is, in some respects, consistent with there being such
a
discretion.
Firstly the use of the words "(if any)" and, to a lesser extent, "such"
and "necessary" suggests that the
Presidential Member has a more general
discretion. Such a result would mean that not only would the member making the
order have
to consider whether, in all the circumstances, it was desirable that
the rules be altered (s.118A(5)) but that process would be
repeated by a
designated Presidential Member. The member making the order would do so having
heard all the evidence and submissions
leading up to the making of the orders
whereas the designated Presidential Member would ordinarily have not. Yet the
designated
Presidential Member could be called upon to repeat the task already
undertaken by another member of the Commission or a Full Bench.
This is a
result that is unlikely to have been intended by the legislature and a
construction of s.118A(6) which avoided it should
be preferred.
In my view the words "(if any)" appear in s.118A(6) so as to provide for
situations where, in the same proceedings,
an order has been made in an
application under s.118A which is compatible with the eligibility rules of the
organisation bound
by the order (and where clearly no alteration to its rules
would be necessary) as well as an order in respect of another organisation
which is incompatible with its eligibility rules (where alterations to its
rules would be necessary). On one view of s.118A(5),
the matter referred is not
the entire application but that much of the application resulting in each
order. This is consistent
with the use of the word "order" in the singular in
s.118A(6) and that the matter being dealt with under s.118A(6) concerns one
order only. However the expression "alterations . . . of the rules of any
organisation concerned" suggests that a number of orders
directed to a number
of organisations might be considered as part of the one matter referred under
s.118A(5). The matter, in my
view, that is referred under s.118A(5) is the
entire application which may have resulted in orders of both types being made.
The
words "(if any)" are included in s.118A(6) to accommodate situations where
the entire application is referred under s.118A(5) and
where orders of both
types have been made with the result that as to one organisation alterations
will have to be made and as to
another no alterations are required.
The submissions of AMWU and FIA touched upon the various meanings of the
word "necessary"
(or derivatives of it) as it appears in other legislation.
However if the words "if any" have the meaning I have discussed then
the
meaning of the remainder of s.118A(6) is reasonably clear. If an order is made
that is incompatible with the eligibility rules
then alterations are to be made
to those rules. The alterations are those "necessary" to reflect the order
being those alterations
which have to be made to the rules so that either the
class that the organisation has ceased to be able to represent by operation
of
the order is no longer comprehended by the rules or the class that the
organisation is now able to represent by operation of
the order is comprehended
by the rules. The word "necessary" signifies the type of alterations that may
be made. The designated
Presidential Member is not at liberty to make
alterations to the rules to reflect, in some incidental way, the order but
rather
must only make those alterations that have the effect of excluding or
including the class the subject of the order directly and
nothing more.
The expression "in the Presidential Member's opinion" refers to the
opinion that is to be formed as to what
are the appropriate terms of the
alterations and that the basis upon which those terms are to be determined is
whether they reflect
the Commission's order made under s.118A(1).
I was referred to the explanatory memoranda of the 
Industrial Relations
Bill 1988 
and Industrial Relations Legislation Amendment Bill 1990 but they
provide, in my view, no real assistance in ascertaining the meaning of
s.118A(6).
I conclude I am obliged to
alter the rules of FIA, AMWU and ETU as the
orders made by the Full Bench are incompatible with their eligibility rules.
The only
task I have is to determine the terms of the alterations.
FIA proposed that its eligibility rules be altered by adding the
following:
"Notwithstanding parts above, any person employed and to be employed as
Production Team Members by Southern
Aluminium Pty Ltd at Bell Bay,
Tasmania are eligible for membership of the Union."
A similar formulation, though
cast in the negative, was proposed by FIA
for the rules of AMWU and ETU.
The only real issue as to the terms of the alterations
related to the
inclusion of the words "and to be employed". FIA submitted that these words are
necessary to reflect the orders
of the Full Bench which included that
expression. AMWU submitted those words were unnecessary and resulted in
uncertainty and imprecision.
I agree with the latter submission. The words were
included in the orders of the Full Bench to deal with the circumstances then
being considered by the Commission, namely that Southern Aluminium Pty. Ltd.
was refraining from employing Production Team Members
in the disputed area
until the question of representation had been determined by the Commission.
The expression "and to be employed"
related to that class. I can see no useful
purpose in now perpetuating that part of the orders in the rules and, in my
opinion,
it is not necessary to reflect the orders of the Full Bench.
I determine that the rules of AMWU, ETU and FIA be altered
in the manner
specified in the schedule to this decision.
I should add that since the orders were made by the Full Bench,
AMWU has
amalgamated with another organisation and has altered its name. It is now the
Metals and Engineering Workers' Union. I
propose to alter its rules so that the
exclusion operates in relation to that part of the eligibility rules which
represents the
eligibility rules of AMWU. While, on one view, this gives rise
to an anomalous result I have followed this course because no order
was sought
or made under s.118 binding the Association of Draughting, Supervisory and
Technical Employees, the membership of which
now constitutes part of AMWU under
its new name.
I conclude by noting that if, over time, a number of orders are made
under s.118A requiring alterations to the rules of any particular organisation
then it may be desirable to insert in the eligibility
rules a subrule to the
following effect:
"Notwithstanding the provisions of this rule persons described in Schedule
A (or B) to these rules are (are not) eligible for membership. Schedule A
(or B) forms part of the eligibility rules of
(name of organisation)."
Such an approach will avoid the existing substantive eligibility rules
being distended by exceptions
or provisos.
SCHEDULE
1. ELECTRICAL TRADES UNION OF AUSTRALIA
At the conclusion
of rule 2, Constitution, add the following paragraph:
"Provided that persons employed as Production Team Members by Southern
Aluminium Pty. Ltd. at Bell Bay, Tasmania are not eligible for membership
of the Union."
2. METALS AND ENGINEERING
WORKERS' UNION
Add the following paragraph at the conclusion of subrule 1A and subrule
1B:
"Provided that persons
employed as Production Team Members by Southern
Aluminium Pty. Ltd. at Bell Bay, Tasmania are not eligible, under this
sub-rule, for membership of the Union."
3. THE FEDERATED IRONWORKERS' ASSOCIATION OF AUSTRALIA
Add to rule 3,
Constitution, after subrule (4) the following subrule:
"(5) Notwithstanding Parts 1 to 4 above, persons employed as Production
Team Members by Southern Aluminium Pty Ltd at Bell Bay, Tasmania are
eligible for membership of the Union."
** end
of text **
*** End of Text ***
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