Bryce v Apperley

CASES CITED: Bryce v Apperley (1998) 82 IR 448 Norwest Beef Industries Ltd v Australasian Meat Industries Employees' Union of Workers (WA Branch) (1984) 12 IR 314

HEARING DATES: 21 October 2009; written submissions 9, 19 November 2009

APPLICANT (on the notice of Motion) Shop Distributive and Allied Employees' Association, New South Wales Branch Mr D Blairs, Industrial Officer - SDA, South Australian Branch

RESPONDENTS (on the notice of motion) Barrier Industrial Council LEGAL REPRESENTATIVES: Mr D O'Connor, President

Broken Hill Chamber of Commerce and Industry, trading as Broken Hill Business Ms S Hocking, Industrial Officer

Broken Hill Town Employees' Union Ms R Ferry, Secretary

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES McKENNA C

BROKEN HILL COMMERCE AND INDUSTRY CONSENT AWARD 2008

Application by Barrier Industrial Council for a new award

DECISION (re notice of motion) [2009] NSWIRComm 1095

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.

4 Comparatively recent attempts to resolve the differences between the SDA and the BIC have not been successful, notwithstanding endeavours thereto by members of this Commission under the umbrella of various proceedings when questions arose concerning the SDA's involvement. Settlement discussions convened by Unions NSW also failed to resolve the issues in dispute. 5 Earlier this year, the SDANSW requested the relisting before the Commission of several current and dormant Broken Hill-related files concerning various industrial disputes and award-related matters. All the relevant files not otherwise already allocated to me were reallocated to me around August 2009. The proceedings in the various matters in which the SDANSW purported it had a legitimate interest, with the exception of this application in IRC08/1885, have since been concluded - albeit the general differences concerning the party status of the SDANSW were not otherwise resolved in those matters.

THE SDA'S MOTION 6 The organisations named as parties to the proposed award are specified in cl1.7 and cl1.24. Those clauses read: CLAUSE 1.7 - AREA, INCIDENCE AND DURATION

a. This Consent Award is between the Broken Hill Chamber of Commerce and the Barrier Industrial Council and affiliated local unions. … CLAUSE 1.24 - PARTIES TO THE AWARD

This Consent Award is between the Broken Hill Chamber of Commerce Inc. and the Barrier Industrial Council and Affiliated Unions. 7 The SDANSW is not an affiliate of the BIC and, hence, is not comprehended as a party to the award. The motion seeks party status for the SDANSW, proposing the following: A. The applicant will on 21 October 2009 at 10.00am move the Commission at Broken Hill that:

The second title page appearing at page 2 be deleted.

The signature page appearing at page 3 be deleted.

Clause 1.7(a) be amended to include the phrase "and the Shop Distributive and Allied Employees' Association." at the end of the first sentence.

Clause 1.24 be amended to include the phrase "and the Shop Distributive and Allied Employees' Association." at the end of the first sentence.

The Shop Distributive and Allied Employees' Association be recognised as a party to the Award.

The Shop Distributive and Allied Employees' Association ("the SDA") is an industrial organisation of employees registered in accordance with Chapter 5 of the NSW Industrial Relations Act 1996 ("the Act").

The rules of the SDA entitle the SDA to cover employees who would also be covered by the Broken Hill Commerce and Industry Consent Award 2008 ("the Award").

The SDA therefore has a sufficient interest in the Award.

The SDA seeks to be included as a party to the Award.

The SDA seeks the above amendments to reflect its status as a party to the Award. 8 The parties to the existing award opposed the matters sought in the SDANSW's motion. 9 On the hearing of the motion in Broken Hill on 21 October 2009, the following appearances were noted:

• Mr D Blairs , Industrial Officer (SDASA), for the SDANSW; - Mr D O'Connor , President of the BIC; - Ms R Ferry , Secretary of the BHTEU; and - Ms S Hocking , Industrial Officer, for the Broken Hill Chamber of Commerce Inc, trading as Business Broken Hill.

The proceedings were adjourned, part-heard, after Mr Blairs presented the SDANSW's case in relation to the motion. The case for the BIC and the SDANSW's reply were submitted subsequently in writing. SUBMISSIONS

10 Mr Blairs referred, in support of the motion, to an affidavit of the Secretary of the SDASA. The affidavit confirmed the SDANSW had authorised him to act on its behalf in the proceedings. His affidavit shortly outlined the endeavours that had been made over the twelve months to September 2009 to attempt to resolve the disagreement in relation to the SDANSW's proposal that it should be included as a party to the award. 11 Mr Blairs submitted the Commission should, first, make a determination that recognises the SDANSW as a party to the making of the award; and, second, vary the award to reflect the SDANSW's status as a party to the award. In this respect, Mr Blairs referred to the provisions of s11 of the Act. Mr Blairs drew attention to the fact the SDANSW is a registered organisation of employees within the meaning of s11(2)(b) of the Act. He submitted also the Commission should be satisfied the SDANSW has a sufficient interest, within the meaning of s11(4) of the Act, given the SDANSW's industrial coverage pursuant to its rules. 12 The case advanced by the SDANSW in support of the motion was succinct, with principal reliance placed on the content of rule 3 of the SDANSW's rules, as registered under the Act. 13 By way of an example of the SDANSW's interest or potential interest, Mr Blairs referred to cl18.7 of the award, which is concerned with the definition of shop assistants. It reads: CLAUSE 18.7 - DEFINITIONS

a. Employees for the purpose of this section shall include any person in the County of Yancowinna employed in or in connection with any retail shops or stores covered by a Specific Award …

He submitted cl18.7 represented but one small example of the cross-over of persons covered by the award and the SDANSW's eligibility rules. 14 In all the circumstances, Mr Blairs submitted, the Commission should find the SDANSW had met the criteria in s11 of the Act such as to support a conclusion it is entitled to be treated as a party to the proposed award or a party to the making of the award, or both. 15 Mr Blairs further submitted certain clauses in the proposed award should be varied in the terms proposed in the motion to specify clearly that the SDANSW is a party to the award. At the time Mr Blairs opened his case, there was no evidence as to whether the SDANSW actually has members who would be employed under the proposed award. Reliance was, instead, based solely or principally on the sufficiency of interest said to arise from the constitutional coverage of relevant employees. The submissions of the Broken Hill Chamber of Commerce, trading as Business Broken Hill

16 Ms Hocking made a brief submission indicating the BHCC objected resolutely to the SDANSW being involved as a party to the award, emphasising that the SDANSW's involvement would not be consistent with the traditions of "the way we do business in Broken Hill".

17 The BIC's written submissions began with an historical outline relevant to the County of Yancowinna, part of which I have already adverted to earlier in this decision. The submissions noted that the award and its predecessors have always been negotiated between the BHCC on behalf of employers within the County of Yancowinna and the BIC on behalf of its affiliated unions. The BIC submitted it is recognised as the peak industrial organisation of employees within the County of Yancowinna; it consists of affiliated unions, all of which are registered under the Act and have relevant coverage of employees. Following the SDASA's disaffiliation from the BIC, the BIC recognised the BHTEU as the affiliate having relevant industrial coverage of the workers employed under the award who previously had been covered by the SDASA. The SDANSW is not affiliated to the BIC, and has not sought to affiliate. Unlike the SDASA, the SDANSW has never been a party to the existing award or its predecessors and, so far as the BIC was aware (at the time its submissions were filed), the SDANSW did not have any members in the County of Yancowinna.

18 The BIC submitted the SDANSW does not have eligible coverage of any employees within the County of Yancowinna. In this regard, the BIC's submissions provided an historical analysis of the evolution of the 1919 rules of the former Shop Assistants and Warehouse Employees' Federation of Australia, New South Wales Branch through changes in 1924, 1925, 1932, 1937, 1938, 1942 and 1946 until the registration of the SDANSW in 1980. 19 The BIC's submissions also made reference to the rules of the federal branch of the SDA in so far as they refer to the County of Yancowinna, as well as the prevalence of exclusions in a number of State retail awards in relation to the County of Yancowinna. 20 As to the general matters in the motion, the BIC's submissions contended there was uncertainty as to which branch of the SDA was the true applicant for party status. The BIC submitted that, properly considered, it is, or was - in reality - the SDASA that is relevantly seeking to be included as a party to the award, whereas that course is not available jurisdictionally. The fact the industrial parties have not been able to settle their differences concerning the award is attributable to the SDA's decision not to be an affiliate of the BIC. The BIC's submissions suggested that if the SDA has any members in the County of Yancowinna they are likely to be members of the SDASA, rather than the SDANSW. 21 In closing, the BIC submitted that the BHTEU has (exclusive) valid constitutional coverage of the relevant retail employees in the County of Yancowinna who would be covered by the proposed award, and the BHTEU is the union to which those employees may conveniently belong. The SDA's reply

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.

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.

31 The densely-worded text of rule 3 of the SDANSW's rules is reproduced in full below: RULE 3. CONSTITUTION PART A.

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

Without in any way limiting Part A or being limited by Part A;

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.

1. Barrier Industrial Council; 2. As a peak industrial organisation of employees. 3. Trades Hall [Address]

1. The Broken Hill Chamber of Commerce Inc 2. As a peak organisation for employers [Address]

37 The application in IRC09/1885 is said to seek, on the application of the BIC and the BHCC, the making of a new award. However, on 30 September 2008, Sams DP gave effect to an award titled Broken Hill Commerce and Industry Consent Award 2008 in s19 award review proceedings in IRC08/698 (and concurrently also effected State Wage Case variations in relation to proceedings numbered IRC08/1247). That award has now been published in the New South Wales Industrial Gazette (IG 369 (Pt 2) 312). Clause 1.7 of the gazetted award reads, in part: This award is made following a review under section 19 of the Industrial Relations Act 1996 and rescinds and replaces the Broken Hill Commerce and Industry Agreement Consent Award 2001 published 9 September 2005 (353 I.G. 677), as varied.

The changes made to the award pursuant to the Award Review pursuant to section 19(6) of the Industrial Relations Act 1996 and Principle 26 of the Principles for Review of Awards made by the Industrial Relations Commission of New South Wales on 28 April 1999 (310 I.G. 359) take effect on and from 1 October 2008.

This award remains in force until varied or rescinded, the period for which it was made having already expired. 38 Proceedings under s19 of the Act are not party-initiated proceedings. The review of awards derives from a statute-based requirement in s19(1) of the Act that the Commission must review awards at least once every three years. The question of whether the SDANSW should be named as a party to the was extant when the award was made/reviewed by Sams DP and remained unresolved despite further conciliation proceedings before Grayson DP and subsequent proceedings before me. However, the award review proceedings in IRC08/698 are now concluded. That is, the s19 proceedings were discontinued, without objection from any party to the award or the SDANSW, when IRC08/698 was relisted before me on 16 September 2009 (consequent upon the request by the SDANSW for the relisting of several dormant files to which I have referred earlier in this decision). 39 It is possible the application presently before me in IRC08/1885 was simply overtaken by the making of the reviewed award in IRC08/698, and the application in this matter for a new award now has no work to do. If it is the case that the application in IRC08/1885 is redundant in circumstances where Sams DP has already effected an award and the BIC and BHCC are no longer, in fact, seeking the making of a new award in IRC08/1885 it would render the matters proposed in the SDANSW's motion, as they concern the draft award filed in IRC08/1885, equally redundant. If so, the SDANSW would, for example, need to give consideration to whether it wishes to seek a variation to the existing award. Section 17 of the Act is concerned with variations to an existing award and it clearly would be jurisdictionally inappropriate to purport to vary an existing award under the umbrella of an application for a new award.

40 Alternatively, it may be the case the application in IRC08/1885 still has work to do and is current in the sense that a new award actually is currently being sought by the BIC and the BHCC. If that is the case, I am bound to foreshadow other considerations may arise having regard to what appears to me to be a basic defect concerning the application itself in relation to the applicants' status to apply for an award. 41 I direct that the BIC and BHCC confirm to me in writing no later than 2.00pm on Tuesday, 15 December 2009 whether they still, in fact, seek the making of a new award in IRC08/1885, or whether they seek to discontinue the proceedings. I direct that copies of that correspondence also be provided by that same time to the SDANSW. 42 The matter will be relisted by teleconference on Wednesday, 16 December 2009 at 10.00am (AEST). ____________________

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