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United Firefighters' Union of Australia, Union of Employees, Queensland v Queensland Auxiliary Firefighters Association Inc [2018] QIRC 66 (1 June 2018)

Last Updated: 6 June 2018

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	United Firefighters' Union of Australia, Union of Employees, Queensland v Queensland Auxiliary Firefighters Association Inc. [2018] QIRC 066
PARTIES:	United Firefighters' Union of Australia, Union of Employees, Queensland (applicant) v Queensland Auxiliary Firefighters Association Inc. (respondent)
CASE NO:	B/2017/29
PROCEEDING:	Application for orders about rights of associations or employee organisations to represent
DELIVERED ON:	1 June 2018
HEARING DATES:	20 November 2017
MEMBERS:	Deputy President O'Connor Deputy President Bloomfield Industrial Commissioner Black
ORDERS:	The application is refused.
CATCHWORDS:	INDUSTRIAL LAW – APPLICATION FOR ORDERS ABOUT RIGHTS OF ASSOCIATIONS OR EMPLOYEE ORGANISATIONS TO REPRESENT -
LEGISLATION: CASES:	Industrial Relations Act 1999 (Qld) Industrial Relations Act and Other Legislation Amendment Act 2007 (Qld) Industrial Relations Act 2016 (Qld), s 9, s 478, s 479, s 480, s 482, s 483, Schedule 1 Judiciary Act 1903 (Cth) Right to Organise and Collective Bargaining Convention 1949 Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106 Attorney-General (SA) v The Corporation of Adelaide [2013] HCA 3; (2013) 249 CLR 1 Brown v Tasmania  [2017] HCA 43  Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309 K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 Kruger v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1 Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 Monis v The Queen (2013) 249 CLR 92, considered Mount Isa Mines Limited AND William Bamford (No. C79 of 2002) MIM Holdings Limited AND Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland [2000] QIC 34; 164 QGIG 316 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Shop, Distributive and Allied Employees Association v National Union of Workers [2012] FWAFB 461 Queen v. Williams and Others; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 68; (1982) 153 CLR 402
APPEARANCES:	Mr C Massy of counsel, instructed by Hall Payne Lawyers for the applicant. Ms J Marr of counsel, instructed by Herbert Smith Freehills for the respondent.

Reasons for Decision

[1] The United Firefighters' Union of Australia, Union of Employees, Queensland (UFUQ) seeks orders about its rights to represent employees in industrial matters under the Industrial Relations Act 2016. The orders sought are as follows:

(i) An order that the UFUQ has the right, to the exclusion of the Queensland Auxiliary Firefighters' Association Inc. (QAFA) to represent auxiliary firefighters who are eligible for membership of the UFUQ, pursuant to section 479(a) of the Industrial Relations Act 2016 (Qld);

(ii) That the QAFA does not have the right to represent auxiliary firefighters who are eligible for membership of the UFUQ, pursuant to section 479(c) of the Act; and

(iii) An ancillary order is sought to prohibit the QAFA from representing that it is able to provide representation in stated industrial matters, and as defined in section 9 and schedule 1 of the Act, pursuant to section 483(1)(c) of the Act.

[2] The UFUQ seeks these orders because it contends an officer, member, employee, servant and/or agent of the QAFA has made representations directed at employees about the QAFA having rights, functions and/or powers in relation to employees under the Act which it does not have.^[1]

[3] The QAFA resists the application.

Legislative Scheme

[4] The orders sought by the UFUQ are made under sections 479 and 483. Section 479 provides:

479. Power of full bench to make orders about rights of associations or employee organisations to represent

On application by an entity under section 480, the full bench may make the following orders about a demarcation dispute—

(a) An order that an employee organisation has the right, to the exclusion of an association or another organisation, to represent a particular group of employees who are eligible for membership of the organisation;

(b) an order that an employee organisation that does not have the right to represent a particular group of employees has the right;

(c) an order that an association or employee organisation does not have the right to represent a particular group of employees who are eligible for membership of the organisation.

[5] Section 483 allows the Commission to make certain ancillary orders in support of any s 479 orders.

[6] The Commission's power to make orders of the nature sought is not unfettered. Section 481 of the Act outlines the limitations upon the Commission's power in applications such as these. Section 481is in the following terms:

481 Limitations on when order may be made

(1) The full bench may make an order under section 479 only if—

(a) the full bench considers conciliation proceedings would not help in the prevention or settlement of the dispute; or

(b) conciliation proceedings for the dispute are completed, but the dispute has not been fully settled.

(2) Also, the full bench may make the order only if it is satisfied—

(a) the conduct, or threatened conduct, of an association or organisation to which the order would relate, or of an officer, member or employee of the association or organisation is—

(i) preventing, obstructing or restricting the performance of work; or

(ii) harming an employer's business; or

(b) the conduct, or threatened conduct, of an association or of an officer, member or employee of the association is preventing, obstructing or restricting negotiations or discussions between the employer and an organisation or the employer and the employer's employees; or

(c) the association or an officer, member or employee of the association has made or is making representations directed at employees about the association having rights, functions or powers in relation to employees under this Act that it does not have; or

(d) the consequences or representations mentioned in paragraph (a), (b) or (c)—

(i) have stopped, but are likely to recur as a result of the

conduct; or

(ii) threatened conduct; or

(iii) are imminent as a result of the conduct or threatened

conduct.

[7] Additionally, the Commission must take into account the matters listed in section 482:

482 Matters the full bench must consider in making order

In considering whether to make an order, the full bench must consider—

(a) the wishes of employees who would be affected by the order; and

(b) the effect of an order on the operations (including operating costs, work practices, efficiency and productivity) of the employees' employer; and

(c) whether it should consult with appropriate State peak councils or organisations; and

(d) the ability of the organisation to adequately represent the employees' interests; and

(e) an agreement or understanding that deals with an employee organisation's right to represent a particular group of employees; and

(f) the consequences of not making an order for the employees, employer or organisation; and

(g) another order made by the commission that it considers relevant.

The issues to be determined

[8] The respondent resists the application on five grounds. The first four grounds go to questions of jurisdiction with the final ground going to the exercise of the Commission's discretion to grant the relief sought:

(i) That the Commission does not have jurisdiction under s 479 where:

(a) there is no demarcation dispute and/or

(b) the prerequisites under s 481(2) are not met

(ii) That s 479 is invalid, or at least must be read down, because it impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution;

(iii) That s 479 is invalid, or at least must be read down, because it offends the principle of legality and impermissibly burdens freedom of speech;

(iv) That the scope of the relief available under s 479 is limited by the requirement of a demarcation dispute;

(v) If there is jurisdiction for all or part of the orders sought, whether the discretionary factors of s 482 of the Act weigh against the granting of the relief sought under s 479, and the ancillary order under s 483.

[9] There are three preconditions to the making of the orders sought by the applicant. The first requires that pursuant to s 479 an order can only be made about a "demarcation dispute". The second requires that the Commission be satisfied that the matters contained in s 481(1) and (2) have been established. Finally, the exercise of the Commission's discretion is limited by reference to a list of relevant factors in s 482 which the Full Bench must consider before granting an order under s 479 of the Act.

Is there a demarcation dispute?

[10] The respondent's primary submission is that the Commission has no power to grant the relief sought by the applicant because there is no demarcation dispute.

[11] The applicant contends that the dispute comes within the natural and ordinary meaning of the term "demarcation dispute" as well as the definition contained in Schedule 5. It is argued by the applicant that subparagraph (c) of the definition should be construed in such a way as to embrace a dispute about an association engaging in representation of the type provided for under the Act.

[12] The respondent adopts a narrower construction submitting that the definition is directed at an association or an employee organisation which purports to act in a representative capacity in tribunals under the Act in respect of the industrial interests of a group of employees. By way of example, the respondent makes reference to: acting in a representative capacity by negotiating for an Award under Chapter 3 of the Act; participating in collective bargaining under Chapter 4 of the Act; and, bringing industrial action under Chapter 6 of the Act. On the respondent's argument, it does not act in a representational capacity nor does it intend to do so.^[2]

[13] The respondent contends that none of the applicant's complaints involve the respondent exercising representative rights which are authorised or conferred by the Act or otherwise acting in any capacity which affects the legal rights and obligations of the parties under the Act.

[14] The respondent is an incorporated association which, on the submission of the applicant, purports to act in employment matters in respect of a group of auxiliary firefighters. The same category or group of persons is covered by the registered callings of the applicant. Accordingly, the dispute falls within the definition of "demarcation dispute".

[15] The term "demarcation dispute" is defined in Schedule 5 as:

demarcation dispute includes—

(a) a dispute arising between 2 or more organisations, or within an organisation, about the rights, status or functions of members of the organisations or organisation in relation to the employment of the members; and

(b) a dispute arising between employers and employees, or between members of different organisations, about the demarcation of functions of employees or classes of employees; and

(c) a dispute about the representation under this Act of the industrial interests of employees by an association or employee organisation.

[16] "Association" and "right to represent" are defined in s 478:

association means an entity that is formed or carried on to protect and promote its members' interests in matters concerning the members' employment, but is not registered as an organisation under this Act.

right to represent, in relation to a particular group of employees means the right to represent the industrial interests of the particular group of employees.

[17] Section 279 also defines "industrial association":

industrial association means any of the following—

(a) an employee organisation;

(b) an association of employees having as a principal purpose the protection and promotion of their interests in matters concerning their employment;

(c) an employer organisation;

(d) an association of employers having as a principal purpose the protection and promotion of their interests in matters concerning employment;

(e) a branch of an industrial association under paragraphs (a) to (d).

[18] Section 279 of the Industrial Relations Act 1999, the precursor to s 479 of the 2016 Act, was amended by the Industrial Relations Act and Other Legislation Amendment Act 2007 to bring unregistered associations into the supervisory jurisdiction of the Commission.

[19] The Explanatory Memorandum to the amending Bill states:

Clause 27 amends section 279 to allow the QIRC, on application, to make orders about exclusive representation rights in relation to associations. Associations are defined as bodies or entities that are formed or carried on to protect and promote their members' interests in matters concerning their employment but which are not registered as organisations under the Act. Currently, section 279 only provides for orders about exclusive representation rights to be made in relation to registered organisations, resulting in unregistered associations being unable to be supervised by the QIRC under Chapter 12 of the Act.

[20] The applicant contends that the Explanatory Memorandum supports its interpretation of s 479 arguing that the notion of supervision is consistent with the construction contended by the applicant.

[21] In MIM Holdings Limited AND Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland, Hall P examined the scope of the definition of "right to represent" when he wrote:

Although the formatting is different, in the definition of 'right to represent' is read into the subsequent provisions, s. 293 of the Workplace Relations Act 1997 and s. 279 of the Industrial Relations Act 1999 are the same. The provisions are not concerned with the right to represent employees or to represent members but with the right to represent the industrial interests of a particular class or group of employees. What is granted or taken away by an order under those sections is the capacity to represent employee interests referred to in the Queen v. Williams and Others; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 68; (1982) 153 CLR 402 at 408. And deprived, as AMWU is, of the capacity to represent the industrial interests of employees in the Mining and Metallurgical Plants Areas of MIM, AMWU may not be a party principal to the proposed agreements.^[3]

[22] The High Court in Queen v. Williams and Others; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation the Court observed:

The eligibility provisions in the rules of a registered organization of employees serve the function of defining the general area or areas of industry or industrial pursuit from which members can legitimately be drawn and with which the organization can legitimately be concerned (see Reg. v. Dunlop Rubber Australia Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia [1957] HCA 19; (1957) 97 CLR 71, at p 87 ; Reg. v. Clarkson; Ex parte Victorian Employers Federation [1973] HCA 57; (1973) 131 CLR 100, at pp 111, 113 ; Co-operative Bulk Handling Ltd. v. Waterside Workers' Federation of Australia [1980] FCA 141; (1980) 49 FLR 355, at pp 357-358 ). Since such eligibility provisions constitute a reference point for courts, commissions, employers, employees and other organizations in determining or ascertaining an organization's proper coverage and field of operation, they must be construed objectively (see Reg. v. Aird; Ex parte Australian Workers' Union (1973) 129 CLR, at p 659; Reg. v. Cohen; Ex parte Motor Accidents Insurance Board [1979] HCA 46; (1979) 141 CLR 577, at pp 580, 587). In so construing them, however, it is permissible to pay regard to any common understanding among people concerned with relevant industries and particularly with industrial matters of the ordinary application of the words used and to take account of evidence of that common understanding furnished by the previous use of the words in the relevant organization's rules and in statutory provisions, decisions, determinations, awards, reports and other papers concerned with the relevant industry or industries (see, e.g., R. v. Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598, at p 613 ; Reg v. Aird; Ex parte Australian Workers' Union (1973) 129 CLR, at p 659 ).^[4]

[23] The phrase "industrial interests" is not defined in the Act. However, the Full Bench was referred to a decision of Commissioner Asbury (as her Honour then was) in William Bamford v MIM Holdings Limited. In that case it was observed:

There was no definition in s. 45, or elsewhere in the Industrial Relations Act 1990, of the term "industrial interests". This is also the case with respect to s. 279 of the current Act. I can see no basis for holding that the terms "industrial interests" and "industrial matters" are synonymous. The Industrial Relations Act 1990, provided a detailed and comprehensive definition of the term "industrial matter" at s. 6. Such a definition is now to be found in the current Act at Schedule 1. If the legislature had intended that an order with respect to the rights of an organisation to represent a particular class or group of employees operated with respect to industrial matters, it would have been simple to include in s. 45 of the Industrial Relations Act 1990, a reference to what was then a well established and defined term.

It is more likely, given that the legislative provisions about coverage, were designed to regulate the activities of industrial organisations, that the term "industrial interests" was used to describe the activities of those organisations as parties principal. It is apparent from the reasons given by the Full Bench in determining to make the representation order in the first place that the order was directed at the role of unions in their capacity as parties principal, and the impact that the multiplicity of unions was having on the operations of Mount Isa Mines Limited. The decision of His Honour Justice Moynihan in Gartrel and Smee v Federated Engine Drivers' and Firemen's Union of Employees, Queensland (1989) 132 QGIG 1421 highlights this distinction. This distinction can also be found in the decision of the President in MIM Holdings Ltd v Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland [2000] QIC 34; (2000) 164 QGIG 316. In that decision at 318, the President observed that because the employees referred to at s. 142(b)(1) may be future employees in a new business, there is some difficulty in reading "represent" as "represent as an agent". At 320, the President said:

And deprived as the AMWU is, of the capacity to represent the industrial interests of the employees in the Mining and Metallurgical Plants Areas of MIM, AMWU may not be party principal to the proposed agreements.^[5]

[24] On appeal, Hall P in Mount Isa Mines Limited AND William Bamford (No. C79 of 2002) wrote:

It is apparent that in denying AMEPKU the right to represent under the Act the industrial interests of employees of Mount Isa Mines Limited who are engaged in the various designated activities the Order has drawn on the language of s. 45(1)(c) "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" (emphasis added). It seems to me inevitable that the words used in the Order which are also used in s. 45(1) are to have their meaning under the Act. (I note that there is some authority for the view that, prima facie, when a word is used in an award it bears the meaning which it bears in the industrial Act under which it was made, compare Clarke v. Cann (1936) 35 AR (NSW) 10 at 13 per Cantor J, Australian Workers' Union of Employees, Queensland v. Watson (1959) 44 QGIG 1320 at 1321 and Australian Meat Holdings Pty Ltd and Schostakowski [2002] QIC 22; (2002) 170 QGIG 21 at 22).

(emphasis in original)

[25] Whilst Commissioner Asbury in William Bamford v MIM Holdings Limited took the view that "industrial matter" was not synonymous with "industrial interest" we are of the view that the phrase, if it is to be given any meaning, must be referrable to the definition of "industrial matter" in s 9 of the Act.

[26] It is submitted by the applicant that subparagraph (c) of the definition of "demarcation dispute" should be construed as embracing a dispute about an association engaging in representation of the type provided for by the Act. However, the respondent contends that the definition should be limited to disputes about the respondent acting as a representative in the tribunals under the Act. It argues that there is a distinction between "making representations about something" and "representing a person."

[27] The respondent submits that the evidence establishes that the support provided by the respondent to auxiliary firefighters is consistent with its objects as an Association and does not include providing representation or advocacy services in an industrial tribunal.

[28] The primary object of the respondent is the protection and promotion of the image of the auxiliary firefighters employed by the Queensland Fire and Emergency Services.

[29] The objects of the respondent's constitution provide:

(1) To encourage and promote the efficiency and effectiveness of auxiliary firefighters and the Queensland Fire and Rescue Service by such methods as the Association determines from time to time.

(2) To act generally for the welfare and in the interests of members of the association and all Queensland Fire and Rescue Service auxiliary firefighters in the performance of their role as such.

(3) To protect and promote the image of Queensland Fire and Rescue Service auxiliary brigades as community based fire brigades protecting the well-being of the community.

(4) To act in the interests of cooperation between emergency service organisations.

[30] The respondent contends that representation or advocacy services in an industrial tribunal are outside its roles and has referred auxiliary firefighters directly to the applicant when they have sought assistance.^[6]

[31] The respondent further argues that engagement with government, posting comments on Facebook, and other publications targeted at auxiliary firefighters does not constitute "representation under this Act".

[32] We disagree with the respondent and its submissions that it has not made representations directed at employees about it having rights, functions or powers in relation to employees under this Act that it does not have.

[33] As is evidenced from the affidavits of Mr Cooke, discussions have been held between the QFES and the respondent in relation to industrial matters and the respondent has, in those discussions, acted as a party principal. In doing so, the respondent has sought to represent the industrial interests of auxiliary firefighters. The applicant contends that it is the collective representation of auxiliary firefighters' industrial interests which gives it the character of being under the Act. We agree.

[34] On 11 August 2014, a Memorandum of Understanding was entered into between the QFES and the respondent with the stated purpose of developing a mutual understanding as described in the Auxiliary Charter Document and to reflect agreement between the QFES and the QAFA on revised conditions of employment (Auxiliary Employment Conditions – Standing Order S-Q-BM-3.7). Amongst other things, the MOU deals with wage increases and other employment conditions.

[35] The respondent argues that the applicant's status as a registered organisation does not give it a monopolistic right to express certain views about the industrial rights of its members, including auxiliaries. However, direct negotiations between the respondent and the QFES concerning conditions of employment is much more than an expression of a view. Under the current legislative scheme, collective representation is a function conferred on a registered organisation. The collective representation of auxiliary firefighters by the respondent, such as negotiations concerning the regulation of terms and conditions of employment is clearly representing the industrial interests of auxiliary firefighters under the Act. It is, as the applicant correctly submits, representation of the type provided for in the Act or as envisaged by the Act.

[36] The respondent's argument that the dispute in this matter is not the type of dispute to which s 479 of the Act is directed involves an overly narrow interpretation of s 479. The words in the definition of "demarcation dispute" should be given their ordinary meaning. Section 479 applies to disputes about "... the representation under this Act of the industrial interests of employees by an association or employee organisation." There is no basis to "read down" s 479 to circumstances where the granting of an exclusive right to represent, or conversely an order not to represent, is directed only to exercising a representative capacity in the industrial tribunals under the Act.

[37] In our view, the representation order, if granted, would remove the right of the respondent to represent the industrial interests of auxiliary firefighters in any capacity under the Act. The term "industrial interests" should be read so that it encompasses all industrial matters defined in Schedule 1 of the Act, and any matter under the Act.

[38] We are, for the reasons advanced above, satisfied that there is a "demarcation dispute" and, accordingly, the Full Bench has the power to grant the orders sought by the applicant.

Limitations on when an order may be made

[39] The Full Bench must be satisfied under s 481(1) that conciliation proceedings would not help in the prevention or settlement of the dispute; or that conciliation proceedings are complete but the dispute has not been fully settled. Relevantly, for present purposes, it is not in issue that the parties have not be able to resolve the dispute through conciliation. The dispute has been the subject of two previous conciliations with a further attempt made to conciliate on the morning of the hearing.

[40] The respondent argues that the applicant has not discharged the onus of establishing that the prerequisites of section 481(2) have been met. Accordingly, it is submitted that the Commission should not exercise its discretion to grant the relief sought.

[41] The applicant's argument proceeds on the basis that s 481(2)(c) is made out. To support that contention reference is made to the evidence of Mr Cooke, in particular to paragraphs 60, 66 and 69. The affidavit discloses that the respondent has given an interpretation of an award;^[7] has a "small voice" in the Personal Protective Clothing Committee^[8]; and is a member of a QFES Committee reviewing the retirement age^[9].

[42] At paragraph 60 of Mr Cooke's affidavit, he makes reference to a QAFA circular entitled 'December 2014 Auxiliary Update' where Mr Sambrooks, the President of the respondent writes:

It's been a big and successful year for QAFA as well. Changes to the Department together with a Charter document that spells out QAFA's relationship with QFES and Qld Government, a Memorandum of Understanding between QFES and QAFA, further enhancing the relationship, have all provided challenges. Finally, in conjunction with the Charter and MOU, QAFA has achieved improvements to our employment conditions with more work underway. Regular meetings with Qld Government and QFES are making a difference. It's slow, frustrating and subject to attack, indifference and blockages. But the outcomes are there and we have the support of Government.

[43] At paragraph 66 of Mr Cooke's affidavit, reference is made to the QAFA Magazine for Autumn 2015 wherein the respondent states that it can provide workplace advice, intervene in various conflict situations (including bullying, intimidation, etc.), and provide legal support where appropriate. The article goes on to state:

QAFA has achieved a Charter document and Workplace Memorandum of Understanding by negotiation with Queensland Government, through the Minister of Police and Emergency Services, as well as the Queensland Fire and Emergency Services. These documents set out the basis of the relationship between QFES, Public Safety Business Agency (PSBA) and QAFA. QAFA meets regularly with QFES to discuss and resolve various issues including employment conditions.

[44] Further, at paragraph 69 of Mr Cooke's affidavit, reference is made to the Spring 2015 edition of the magazine where Mr Sambrooks, the President of the respondent again writes:

QAFA remains ready and able to support auxiliary firefighter members in many ways and continues to seek better outcomes across all areas of auxiliary firefighters employment.

[45] There is evidence before the Full Bench to support a conclusion that subparagraph 2(c) of s 481 has been complied with, namely, that "the association or an officer, member or employee of the Association has made or is making representations directed employees about the Association have rights, functions or powers in relation to employees under this act that it does not have."

[46] The affidavit of Mr Cooke identifies in a number of Facebook posts a list of industrial matters discussed between the respondent and the QFES at the quarterly forums.^[10]

[47] The applicant refers to the "Auxiliary News September 2016" annexed to the affidavit of Mr Cooke in which Mr Sambrooks writes:

We continue to meet regularly with QFES to discuss issues – as we have done for years – but we can now discuss all areas relating to auxiliary firefighters employment some of which were blocked in the past. Naturally, matters covered by the award subject to the Industrial Commission jurisdiction. Additionally, we have the support of the MOU and the Charter and the ongoing support of Commissioner Carroll.^[11]

[48] Whilst the applicant primarily relies on s 481(2)(c), it also submits that there is evidence to support the conclusion that s 481(2)(b) is also satisfied. It is argued by the applicant that there is a category of discussions which are occurring at the quarterly forums between the respondent and the QFES which relate to employment and industrial matters. It is asserted that the applicant is locked out of those discussions. As a consequence, the applicant submits that the respondent is either preventing or restricting negotiations or discussions between a registered organisation and the employer. It is for this reason that the applicant submits that the mandatory requirements of s 481(2)(b) are also established.

Discretionary factors

[49] The respondent contends that the discretionary factors contained within section 482 of the Act mitigates against the granting of the relief sought under s 479 and s 483.

[50] The Full Bench's discretion under s 482 is exercisable by reference to several "statutory" considerations, not all of which have relevance to the current proceedings.

[51] In Minister for Immigration and Citizenship v Li, the High Court held that every statutory discretionary power has attached to it by the common law a requirement that it be exercised reasonably, having regard to the statutory purpose of the power.^[12]

[52] In reference to s 482(a), the extent of the applicant's evidence in relation to the wishes of employees is found in the affidavit of Jason Leigh Hall. Mr Hall holds the rank of a Lieutenant auxiliary firefighter and was from 2011 to 2014 a delegate of the applicant and one of two representatives of auxiliary firefighters on the management committee of the applicant. However, Mr Hall is no longer a delegate of the auxiliary firefighters on the Management Committee and has not held a formal position with the applicant since 2014. He deposed that he had spoken with some 50 auxiliaries over a five year period who have expressed confusion over the role and work of the respondent. On balance, it must be said that the evidence is of little assistance.

[53] Other than the affidavit of Mr Hall, there is no evidence adduced in respect of s 482 (a) in order for the Full Bench to be informed of the wishes of employees who would be affected by the order. It is worth noting that no evidence was adduced from the current delegate for the auxiliary firefighters on the management committee.

[54] For the purpose of s 482(b), the effect of the order on the operation of the QFES has not been articulated on the material before the Full Bench. In particular, when the QFES is a key stakeholder in respect of auxiliary firefighters the QFES's long-standing engagement and positive relationship with the respondent is of benefit to the efficient operation of stations run by axillary firefighters complemented by auxiliaries.

[55] It is asserted by the respondent that the orders, if granted, would have an adverse impact on the employer. However, there is no direct evidence from the employer to support such a contention. Equally, there is no evidence in relation to s 482(b) to determine the effect, if any, on the operations of the QFES including the effect on the employers operating costs, work practices, efficiency, and productivity.

[56] The ability of the applicant to adequately represent the employees' interests is set out in the second affidavit of Mr Anthony Cooke^[13] and was the subject of cross-examination during the hearing of this matter. In respect of s 482(d), it is clear that the applicant has the capacity, resourcing and ability to adequately represent the interests of the auxiliary firefighters.

[57] Section 482(e) refers to an agreement or understanding that deals with an employee organisation’s right to represent a particular group of employees. In 2007, the applicant amended the Eligibility Rule. The application to amend the Eligibility Rule was opposed by the AWUQ and the respondent. The objection between the applicant and the AWUQ was settled by means of a demarcation undertaking. The respondent's objection was settled by way of a Deed which provided for, amongst other things, that the applicant would amend its rules to better accommodate auxiliary firefighters. The Deed provided that the respondent would use its best endeavours to co-operate with the applicant to advance the industrial interests of auxiliary firefighters. Mr Cooke in his second affidavit contends that the respondent failed to effectively fulfil its obligations under the Deed.^[14] Notwithstanding the respondent's apparent failure to meet its obligations under the Deed, the respondent is correct when it submits that the Deed would effectively come to an end should the Full Bench grant the orders.

[58] In considering the consequences of not making an order for the employees, employer or organisation in s 482(f), the respondent submits that there is no practical utility in granting the orders sought by the applicant. It does so on the basis that the applicant already has the sole right to enrol auxiliary firefighters under the Act. The issue before the Commission is not the right to enrol an auxiliary firefighter. Rather, it is a matter concerning the right to represent the industrial interests of auxiliary firefighters under the Act. The utility in granting the orders is to resolve a demarcation dispute.

[59] It is also argued by the respondent that the orders would have an impact on the employer by impeding the ability of QFES to seek the views of all relevant stakeholders in order to meet the Act's primary purpose of attaining a fair and balanced framework for co-operative industrial relations.

[60] The respondent referred the Full Bench to a decision of the Fair Work Commission in Shop, Distributive and Allied Employees Association v National Union of Workers^[15] to support the argument that in addition to the discretionary factors set out in s 482 it was appropriate to have regard to the scheme and objects of the Act, including an employee's right to freedom of association.

[61] In the NUW case, the SDA sought an order under s 137A of the Fair Work (Registered Organisations) Act 2009 (Cth) that would exclude the NUW from being able to recruit members at the site, effectively giving the SDA exclusive rights to recruit those employees. It was argued by the SDA that the NUW was frustrating and impeding the process of the negotiations, in breach of a long-standing demarcation agreement and in defiance of the ACTU's determination.

[62] In considering whether to exercise the discretion, the Full Bench of the Fair Work Commission took the view that regard had to be made to the scheme and objects of the prevailing legislation. In particular, the objects in s 3 of the Fair Work Act which include "enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented..." The Full Bench continued:

If the case was a matter of choosing the best union to be the beneficiary of an exclusive representation order, much of the material advanced by the SDA would carry considerable weight. However the actual impact of the order on the rights and obligations contained in the FW Act require a different approach.

In our view the terms of the FW Act alter the traditional approach to matters of this nature which has involved the assumption that competition between unions for membership at the workplace level is undesirable and should be discouraged. The freedom of employees to choose their bargaining representatives and provisions of the FW Act that support the right to freedom of association significantly reduce the significance of the historical assumptions that have applied in matters of this type. In our view a strong case needs to be presented for an order to be made which would have an effect to modify current statutory rights. We do not consider that the SDA has established a sufficiently strong case in this matter.^[16]

[63] The Full Bench in the NUW decision declined to exercise its discretion because there was strong support amongst employees at Woolworths for the choice of the NUW representation to remain available. The Fair Work Act emphasised the right of an employee to choose whatever bargaining representative they wished.

[64] The respondent argues, in this case, that if the Full Bench exercises its discretion to make the representation orders sought, it would have a significant impact upon the respondent by impeding the right of freedom of association of the auxiliary employees.

[65] For the reasons which follow we do not accept the respondent's submission that the orders sought by the applicant constitute an impermissible burden on the implied freedom of political communication contrary to the Commonwealth Constitution.

[66] The Full Bench is of the view that there is a demarcation dispute for the purposes of s 479 of the Act. We are also satisfied that the matters specified in s 481(1) and (2) have been established. The term "industrial interests" should be read so that it encompasses all industrial matters defined in Schedule 1 of the Act, and any matter under the Act. The representation order, if granted, would remove the right of the respondent to represent the industrial interests of auxiliary firefighters in any capacity under the Act. However, having considered the relevant discretionary matters in s 482 of the Act, we are not persuaded to grant the relief sought by the applicant under s 479 of the Act.

Does the relief sought impose an impermissible burden on the Constitutional implied freedom of political communication?

[67] Having regard to the findings made by the Full Bench, it is not strictly necessary to consider the submission of the respondent. Nevertheless, for completeness, we make the following general observations about whether the relief sought impermissibly burdens the implied freedom of political communication.

[68] The Full Bench is content to assume for the purposes of argument in relation to whether or not the orders sought by the applicant constitute an impermissible burden on the implied freedom of political communication contrary to the Constitution that the Commission is a Chapter III court and is by virtue of s 39(2) of the Judiciary Act 1903 (Cth) able to exercise federal jurisdiction. The assumption is made in these reasons primarily on the basis that s 429 of the Act provides that the Commission is established as a court of record in Queensland. As observed by Kirby J in K-Generation Pty Ltd v Liquor Licensing Court, while not conclusive, that designation may constitute a very strong consideration in determining the true nature of the body.^[17]

[69] It is submitted by the respondent that the construction of s 479 relied upon by the applicant must not offend the principle of legality and impermissibly burden the implied freedom of political communication within the Commonwealth Constitution.

[70] As was observed in Monis v The Queen^[18] the principle of legality is based upon a presumption which may be sourced in rule of law concepts. The principle of legality is known to both the Parliament and the courts as a basis for the interpretation of statutory language.^[19]

[71] In Attorney-General (SA) v The Corporation of Adelaide French CJ wrote:

The common law freedom of expression does not impose a constraint upon the legislative powers of the Commonwealth or the States or Territories. However, through the principle of legality, and criteria of reasonable proportionality, applied to purposive powers, the freedom can inform the construction and characterisation, for constitutional purposes, of Commonwealth statutes. It can also inform the construction of statutes generally and the construction of delegated legislation made in the purported exercise of statutory powers. As a consequence of its effect upon statutory construction, it may affect the scope of discretionary powers which involve the imposition of restrictions upon freedom of speech and expression.^[20]

[72] The implied freedom of political communication "protects the free expression of political opinion, including peaceful protest, which is indispensable to the exercise of political sovereignty by the people of the Commonwealth."^[21]. However, it is important to note that it does so, not by conferring any individual rights, but by limiting the exercise of legislative power in order that the free expression of political opinion is not impeded.^[22]

[73] In Australian Capital Television Pty Ltd v Commonwealth^[23], six members of the High Court found that the Constitution contained an implied prohibition against legislative or executive infringement of the freedom to discuss governments, governmental institutions and political matters. Their Honours concluded that the system of representative government created by the Constitution, or at least the text of sections 7 and 24, necessarily requires for its efficacy that the Australian people are able to discuss freely matters relating to Australian government.

[74] In Lange v Australian Broadcasting Corporation,^[24] the High Court said that when a law of a State or Federal Parliament or a Territory legislature is alleged to infringe the requirement of freedom of communication imposed by ss 7, 24, 64 or 128 of the Constitution, the following two questions must be answered before the validity of the law can be determined:

(i) First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect?

(ii) Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

[75] The test in Lange was further modified in Coleman v Power^[25] and McCloy v New South Wales^[26].

[76] In McCloy, in a joint judgment, French CJ, Kiefel, Bell and Keane JJ re-wrote the proportionality test as set out in Lange, breaking down its elements into a number of more precise tests.

[77] The test in McCloy was expressed as follows: The first question was whether the law effectively burdens the freedom in its terms, operation or effect. The second question was described as one that involves "compatibility testing". It requires the identification of the purpose of the law and the means adopted to achieve that purpose and asks whether they are compatible with the constitutionally prescribed system of representative government in the sense that "they do not adversely impinge" upon it. The third question was described as requiring "proportionality testing". The "structured proportionality" analysis involves three elements. It requires a determination whether the restriction imposed by the law on the freedom is justified as (a) suitable; (b) necessary; and (c) adequate in its balance. A law is "suitable" if it has a rational connection to its purported purpose. It is "necessary" if there is "no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom". It is "adequate in its balance" if the court makes the value judgment that the importance of the purpose served by the law outweighs the extent of the restriction that it imposes on the freedom.

[78] More recently in Brown v Tasmania^[27] the test adopted by McCloy was restated in the following terms:

(i) Does the law effectively burden the freedom of political communication? If not, the law is valid.

(ii) If the answer to question one is yes, is the purpose of the law legitimate, in the sense that it is compatible with the constitutionally prescribed system of representative and responsible government? If not, the law is invalid.

(iii) If the answer to question two is yes, is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the constitutionally prescribed system of representative and responsible government? If not, the law is invalid. If yes, the law is valid.

[79] The third question in Brown may, in appropriate cases, be answered using the McCloy structured proportionality analysis.

[80] The purpose of the Act, as outlined in s 3, is two-fold: (i) to provide for a framework for cooperative industrial relations that is fair and balanced; and, (ii) supports the delivery of high quality services, economic prosperity and social justice for Queenslanders.

[81] It must be observed that fundamental to the scheme of the Act is the primacy of collective representation of employees.

[82] The way in which those purposes are achieved is set out in s 4 of the Act, which, relatively, provides:

(h) promoting collective bargaining, including by—

(i) providing for good faith bargaining; and

(ii) establishing the primacy of collective agreements over individual agreements....

...

(n) encouraging representation of employees and employers by organisations that are registered under this Act..."

...

(r) assisting in giving effect to Australia's international obligations in relation to labour standards.

[83] Article 4 of the Right to Organise and Collective Bargaining Convention 1949 provides:

Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations with a view to the regulation of terms and conditions of employment by means of collective agreements.

[84] The primacy of collective bargaining was emphasised in the Parliamentary Debates associated with the introduction of the Industrial Relations Bill 2016 where the Minister observed:

Our bill's collective bargaining model supports the primacy of collective bargaining and the right to be represented in bargaining and has been drafted to ensure that the collective representation through an industrial organisation cannot be sidestepped.^[28]

[85] Chapter 12 of the Act provides the mechanism by which employees and employers who wish to be collectively represented may obtain registration for their respective organisations. Upon the obtaining of registration, an organisation can, for example: be a party to a modern award, certified agreements, seek to recover unpaid wages, file dispute applications, file general protections disputes or unfair dismissal applications. The Act does not recognise any other entity other than a registered organisation for the collective representation of employees or employers.

[86] The rationale for the current legislative scheme with regard to collective bargaining is based upon a concern that workers will not be adequately represented. The assumption underlying this is the belief that employers and individual employees do not have equal bargaining power.

[87] To put s 479 in context, it is important to recognise that the eligibility rules play an important part in regulating registered organisations, as the historical development of the industrial framework has led to overlaps between workplaces and industries. The variety of organisations has, on occasions, led to a system of intersecting eligibility rules and competition between organisations to represent a particular class of member. As a consequence, both the requirements for registration and the requirements for changing eligibility rules are careful to include steps to avoid contested eligibility, or demarcation disputes. However, should a demarcation dispute arise, s 479 provides the means for the Full Bench to make orders about exclusive representation rights.

[88] Put simply, the purpose of s 479 is to provide a mechanism to resolve disputes concerning the right to represent the industrial interests of a particular group of employees.

[89] Section 479 of the Act is not, in our view, invalid because the provision is part of an important legislative scheme aimed at the legitimate end of ensuring that workers should have a right to negotiate collectively and to be so represented, so that the interests of the employer face the interests of employees. The right to collectively bargain has been long recognised in labour law in this country and is built upon a foundation that collective bargaining should be encouraged to modify the imbalance in bargaining power between employer and employee and to ensure that employees have a voice in the workplace. Section 479 of the Act is designed to encourage collective representation by resolving disputes as to industrial representation.

[90] We accept that s 479 is reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the constitutionally prescribed system of representative and responsible government. Section 479 is "suitable" as it has a rational connection to its purported purpose; it is "necessary" as there is "no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom"; and it is "adequate in its balance" because the importance of the purpose it serves outweighs the extent of the restriction that it imposes on the freedom.

Conclusion

[91] For the reasons advanced above, we have formed the view that there is a demarcation dispute for the purposes of s 479 of the Act and the matters specified in s 481(1) and (2) have been established. The representation order, if granted, would remove the right of the respondent to represent the industrial interests of auxiliary firefighters in any capacity under the Act. The term "industrial interests" should be read so that it encompasses all industrial matters defined in Schedule 1 of the Act, and any matter under the Act.

[92] However, after considering the discretionary matters contained in s 482 of the Act and on the material before the Commission, the Full Bench has not be persuaded to exercise the discretion to grant the application.

Order

[93] The application is refused.

^[1] Industrial Relations Act 2016 (Qld), s 481(2)(c).
^[2] Affidavit of Roger John Sambrooks 6 November 2017 at para. 7.22.
^[3] [2000] QIC 34; 164 QGIG 316 at 320.
^[4] [1982] HCA 68; (1982) 153 CLR 402 at 408.
^[5] QGIG Vol. 171 No.2, pages 28-33.
^[6] Affidavit of Roger John Sambrooks 6 November 2017 at para.7.23.
^[7] Affidavit of Anthony Cooke affirmed on 14 July 2017 at para: 53.
^[8] Ibid at para 58.
^[9] Annexure AC-13 to the affidavit of Anthony Cooke affirmed 14 July 2017.
^[10] Affidavit of Anthony Cooke 14 July 2017 at Para: [50], [51], and [52].
^[11] Ibid at para [62].
^[12] (2013) 249 CLR 332; See also Kruger v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1, 36 and Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, 650.
^[13] Affidavit of Anthony Cooke affirmed on 19 October 2017.
^[14] Affidavit of Anthony Cooke affirmed on 14 July 2017 p 5.
^[15] [2012] FWAFB 461.
^[16] Ibid [56], [57].
^[17] [2009] HCA 4; (2009) 237 CLR 501, 562.
^[18] (2013) 249 CLR 92.
^[19] Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309 at 329 [21]; [2004] HCA 40.
^[20] [2013] HCA 3; (2013) 249 CLR 1 at [44].
^[21] Brown v Tasmania  [2017] HCA 43  at  [88] .
^[22] Ibid.
^[23] [1992] HCA 45; (1992) 177 CLR 106.
^[24] [1997] HCA 25; (1997) 189 CLR 520.
^[25] [2004] HCA 39; (2004) 220 CLR 1.
^[26] [2015] HCA 34; (2015) 257 CLR 178.
^[27]  [2017] HCA 43. 
^[28] Queensland, Parliamentary Debates, Legislative Assembly, 30 November 2016, 4771 (The Hon. Grace Grace MP).