Bryce v Apperley

Bryce v Apperley - [2009] NSWIRComm 1095 - NSWIRComm 2009 case summary — Zoe

[15]

1 The Shop Distributive and Allied Employees' Association ("SDA") has filed a notice of motion in these proceedings, the basic purpose of which is to afford its New South Wales branch party status under the Broken Hill Commerce and Industry Consent Award 2008 ("the award"). The proposed award, like its predecessors, applies to a disparate range of industries and occupations in the County of Yancowinna. The County of Yancowinna is located in the vicinity of Broken Hill in far western New South Wales. 2 The motion, in some ways, can be viewed as the latest development in a long-standing disagreement between the Barrier Industrial Council ("BIC") and the South Australian branch of the SDA ("SDASA") or the New South Wales branch of the SDA ("SDANSW"), or both. Unionised, retail-type employees in the County of Yancowinna were once members of the now-defunct Broken Hill Shop Assistants' Union ("SAU"). In 1998, the SDASA, which was at that time an affiliate of the BIC, acquired coverage of the members of the SAU - presumably for reasons including geographical convenience in servicing the membership, given the relative proximity of Adelaide and Broken Hill, as against Sydney and Broken Hill. The SDASA was, therefore, inferentially recognised as a party to the predecessor to the proposed award, by virtue of its affiliation to the BIC. In April 2006, the SDASA disaffiliated from the BIC and, hence, was no longer comprehended as a party to the predecessor to the award. Moreover, following the SDASA's disaffiliation from the BIC, the BIC treated the Broken Hill Town Employees' Union ("BHTEU") as the affiliate with relevant representational coverage of the workers employed under the award who previously had been represented by the SDASA in the County of Yancowinna. Rosslyn Ferry, who is the Secretary of the BHTEU, has filed an affidavit in the proceedings attesting to the BHTEU's registration under Ch 5 of the Industrial Relations Act 1996 ("the Act") and as to its valid constitutional coverage of all employees employed in retail industries within the County of Yancowinna. 3 Over at least the past year or so, the SDA - albeit it was not always entirely clear which branch - agitated what it claimed was its right to appear, as a party principal, in various Commission proceedings concerning industrial matters relevant to the County of Yancowinna. The SDA's representations in that respect were met with strong objections from the BIC and its affiliates. The objections of the BIC and its affiliated unions have been advanced on the basis of two principal contentions, namely, that: (a) the SDANSW does not have any relevant constitutional coverage under its rules in relation to any employees within the County of Yancowinna; and (b) the SDANSW or the SDASA, or both, will not affiliate to the BIC - which has had a distinguished history of coordinating industrial affairs for all unions operating within the County of Yancowinna; and the SDA ought not, therefore, be involved in the award's negotiations and processes.

[38]

22 The SDANSW's submissions noted the BIC had not adduced any evidence in the proceedings - and that its case had been advanced on only submissions. While acknowledging the Commission is not bound by the rules of evidence, Mr Blairs' written reply advocated caution in accepting the characterisations put forward in the BIC's submissions in circumstances where the SDANSW has not had to opportunity to test any evidence as to any such matters. The SDANSW submitted that many of the contentions in the BIC's submissions were not accepted by the SDANSW, and otherwise were irrelevant. 23 Ms Blairs drew attention to the changes that had been brought about by federal legislative changes, in submitting the proposed award has more limited application than previously was the case. He submitted also that to the extent there had been changes in the SDANSW's rules, such changes were likely to have been the product of changes in the industrial relations environment from time to time. Mr Blairs submitted that the correct approach to the interpretation of the SDANSW's rules properly involves an examination of the current rules, approached by reference to their ordinary, common sense, English meaning: Bryce v Apperley (1998) 82 IR 448 at 452, citing Norwest Beef Industries Ltd v Australasian Meat Industries Employees' Union of Workers (WA Branch) (1984) 12 IR 314 at 331. 24 Adopting the approach to interpretation in Bryce v Apperley, Mr Blairs submitted the SDANSW's rules cover employees under the proposed award in the County of Yancowinna other than as specified within rules themselves. He submitted that if the exclusion in rule 3 concerning the County of Yancowinna was located at the end of the text, it could be argued the exemption applied to the entirety of the clause preceding it. However, read in its context and location, the exclusion should not be considered to have a general operation concerning the County of Yancowinna. 25 More generally, Mr Blairs submitted the BIC's submissions concerning the rules of the federal branch of the SDA and references to the concept of "conveniently belong" were not relevant to the matters under consideration in these proceedings; and it was unclear how the BIC's submissions in relation to the operation of industrial instruments other than the award supported the BIC's contentions. 26 Last, following from the BIC's submissions the SDANSW was unlikely to have any members covered by the proposed award, Mr Blairs adverted, in evidence arising for the first time only as part the SDANSW's reply, to an affidavit by Mr Malinauskas. Mr Malinauskas deposed his inquiries had confirmed the SDANSW has "at least one member" of the SDANSW who would be covered by the proposed award.

[39]

27 I take notice of the fact that, within New South Wales industrial jurisprudence, there has been a long history of arrangements applicable to the County of Yancowinna which have differed from arrangements applying more broadly within the State. For example, it has been a routine aspect of common rule awards of this Commission and its predecessors to have State-wide operation, other than in the County of Yancowinna. 28 The proposed award, like its predecessors, has an unusually broad-ranging operation, dealing with employees in occupations and industries as disparate as follows: animal welfare; cleaners and caretakers; clerks; clothing trades; furnishing trades; gardeners; hairdressers; handypersons and town labourers; hotels; kindergartens and child care centres; meat industry (processing); motels; plant operators and earthmoving; restaurants, fish shops and cafes where meals are served; security industry; shop assistants; shop assistants (exempted shops including special shops); shop assistants (petrol, oil resellers and lubritorium operators only); trades; transport; transport (tourist and service coach drivers); warehouse and carriers, wholesale wine and spirit merchants. Obviously, however, its broad-ranging scope is curtailed by the changes in the wake of federal legislative developments and pending developments. 29 One of the preliminary matters that needs to be considered in relation to the motion is whether the rules of the SDANSW relevantly comprehend constitutional coverage of any classification/s of employees in the County of Yancowinna who would be covered by the proposed award. Shortly stated, the SDANSW's position is that, to the extent there is an exclusion in its rules in relation to the County of Yancowinna the exclusion is a limited one - relevantly applying only to employees "engaged as operators, retouches, printers and members of any branch of the photographic professional or trade". 30 On the other hand, the BIC's position, again shortly stated, is that the exclusion concerning the County of Yancowinna in rule 3 of the SDANSW's rules should be read as a general exclusion - with the result that the SDANSW would have no relevant constitutional coverage of employees under the proposed award in the County of Yancowinna and, hence, no proper basis for seeking party status.

[41]

The Union shall consist of an unlimited number of employees engaged in any capacity in or in connection with the selling, demonstrating, receiving, handling, hiring-out, exchange or delivery of goods of any sort and/or any kind including coupons, tickets, orders or consideration of any kind in or for any shop or warehouse and away from and without limiting the generality of the foregoing shall include "models and mannequins" including employees in any dispensary and/or premises engaged in the reception, sale or delivery of goods other than in or for any shop or warehouse and employees employed in or in connection with the handling, reception, sale or delivery of fruit and vegetables at the City Municipal Markets or wholesale fruit and vegetable distributing centres in the State of New South Wales including such wholesale fruit and/or vegetable markets as shall from time to time be established in the State of foresaid (excluding employees at wholesale markets within the County of Northumberland the Parish of Stockton and the Shire of Port Stephens) and employees engaged in or in connection with the making, preparing, handling, putting up, reception, sale or delivery of drugs, galenicals, gut preparations, surgical, medical and hygienic dressings, pharmaceutical goods, cosmetics, perfume, toilette preparations, medicines, cotton-typed applicators, cotton balls, non-woven fabric household and industrial wiping cloths or non-woven fabric food service cloths or household chemicals and of employees engaged as operators, retouches, printers and members of any branch of the photographic professional or trade (excluding the County of Yancowinna) employees engaged in installation (other than such installation as requires trade skills) servicing, stocking, collection of money from and preparation of commodities for sale in vending machines and the like and members of any branch of the advertising profession and/or trade employed in any capacity by the industries covered by this constitution including consultants and employees providing services free or otherwise directly or indirectly in the promotion of sale by retail including messengers employed within the industry covered by this constitution and such persons who have been elected and/or appointed officers or employees or life members of the Union excepting - store men, packers, clerks, watchmen, caretakers, cleaners, lift attendants, tea attendances, gardeners, gate keepers and transport workers (other than grocers, vegetable and fruit carters who are within the Newcastle area referred to in Rule 20) and employees engaged in the manufacture of tartaric acid, cream of tartar or any by product thereof, and employees engaged in or about the grinding of drugs and/or employees in any dispensary attached to a hospital of the like, employees of Monsanto Australia Limited at Rozelle, airbrush artists in the photographic industry and artists models, persons employed in coin-operated laundries, persons within the jurisdiction of the Commercial Travellers (State) Conciliation Committee or persons engaged in the professions or trade of photography employed in hospitals or universities within New South Wales . [My underlining] PART B

[43]

The Union shall consist of an unlimited number of persons registered as Pharmacists under the Pharmacy Act 1964 or its successors, or studying for a degree in any recognised Institute of Education for the purpose of registration as a Pharmacist or working as a consultant in any capacity including Managers, Pharmacists in charge, Registered Pharmacist Assistants, or any other person employed in the dispensary of any Retail Pharmacy as a Dispensary Assistant and including all pharmacists, university pharmacy students and pharmacy graduates employed in a retail pharmacy. 32 Having considered the text of rule 3 of the SDANSW's rules, I am of the view the exclusion concerning the County of Yancowinna is, as Mr Blairs submitted, one of limited, rather than general, operation. The exclusion in concerning the County of Yancowinna (as underlined in the extract above) does not, for example, form part of general preliminary text or general concluding text in the rule. The exclusion in relation to the County of Yancowinna is located part-way through the text of rule 3 and should be read, in my opinion, as a qualification only in relation to the nominated classes of employees, namely, "employees engaged as operators, retouches, printers and members of any branch of the photographic professional or trade". To similar effect, rule 3, in a limited rather than general way, excludes coverage of certain classes of employees working within the County of Northumberland, the Parish of Stockton and the Shire of Port Stephens. 33 I have considered the submissions of the BIC concerning the evolution of the rules of the SDANSW and it predecessors which indicated there had been a general exclusion in years past in relation to the County of Yancowinna. Irrespective of the history of the rule changes, the present rules of the SDANSW now, whether by design or accident, seem to me to contemplate coverage in the County of Yancowinna other than in relation to employees engaged as operators, retouches, printers and members of any branch of the photographic professional or trade. 34 The SDANSW is an industrial organisation of employees registered in accordance with Ch 5 of the Act and, in my view, its rules encompass coverage of employees who would be covered by the proposed award. As such, I would conclude, as Mr Blairs submitted, the SDANSW is an industrial organisation that may make an application for an award under s11(2) of the Act and/or become a party to proceedings for the making of the proposed award under s11(3) that would apply to the relevant classes of employees in the County of Yancowinna. I consider, as Mr Blairs submitted, the sufficiency of interest for the purposes of s11(4) of the Act in relation would arise on the basis of the constitutional coverage alone. In any event, there is now evidence before the Commission, albeit of a non-specific nature, indicating Mr Malinaukas's enquiries have confirmed the SDANSW has at least one member who would be covered by the proposed award. This would lend further support to a finding that the SDANSW would have a relevant sufficiency of interest to be afforded party status in the award. 35 In view of my findings in favour of the SDANSW concerning the substantive issues of industrial coverage, I would be minded, absent any other considerations, to afford the SDANSW recognition by way of party status in any award that may be made in by the Commission in IRC08/1885. However, current status of the application in this matter and, hence, any process that has been filed by the SDANSW in relation to it, is far from clear to me. 36 The file title (which is determined administratively within the Industrial Registry when a matter is filed) indicates the application in this matter was made by the BIC. A closer examination of the initiating process filed on 1 October 2008 shows the BIC and the BHCC were co-applicants. That is, the application relevantly reads: F. Particulars: The proposed award reflects the agreed position between the affiliated unions representing employees and the Broken Hill Chamber of Commerce representing employers. G. Applicant: The Barrier Industrial Council and The Broken Hill Chamber of Commerce Inc.

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Judgment (50 paragraphs)

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