Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

Application for a protected action ballot order - whether evidence can be led in relation to requirements in s.461.

[1] On 28 August 2007 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) filed an application under s.451 of the Workplace Relations Act 1996 (the Act) seeking an order for a protected action secret ballot of employees of Australia Post. The application came on for hearing on 30 August 2007. The conditions precedent for the making of such an order are specified in s.461(1) of the Act. Section 461(1) provides:

"461 Application not to be granted unless certain conditions are met

(1) The Commission must grant an application for a ballot order if, and must not grant the application unless, it is satisfied that:

(a) during the bargaining period, the applicant genuinely tried to reach agreement with the employer of the relevant employees; and

(b) the applicant is genuinely trying to reach agreement with the employer; and

(c) the applicant is not engaged in pattern bargaining.

Note 1: An application for a ballot order must comply with the requirements set out in Subdivision B.

Note 2: To work out when a bargaining period began, see section 427.

Note 3: For other provisions relating to pattern bargaining, see:

(a) section 431; and

(b) section 439; and

(c) section 497.

[2] Australia Post had filed and served a statement directed as establishing that the conditions in s.461(1)(a) and (b) had not been satisfied. Counsel for the CEPU objected to Australia Post leading evidence on these or any other matters in connection with the CEPU's application. After hearing argument I adjourned briefly and, upon resumption of the hearing, announced my decision to reject the CEPU's objection and indicated that reasons would be provided. These are my reasons for that interlocutory ruling.

[3] Counsel for the CEPU advanced a comprehensive argument based on numerous provisions of the Act. He argued that the scheme of Part 9 of the Act restricts the Commission, when it is considering an application under s.451, to "performing what is in substance and in truth" an "administrative" function based only on the submissions of the parties. It is unnecessary to set out all of the provisions to which I was taken in argument. The lynch pin of the argument was the proposition that, upon its proper construction, s. 458 of the Act restricts the parties to making submissions only and thus has the effect of preventing any party from leading evidence on an application under s.451.

[4] Section 458 is in the following terms:

"458 Parties and relevant employees may make submissions and apply for directions

(1) A party or a relevant employee may make submissions, and may apply for directions, relating to:

(b) any aspect of the conduct of a protected action ballot.

(2) A person nominated in an application to conduct a ballot may make submissions, and apply for directions, relating to the application.

(3) An authorised ballot agent may make submissions, and apply for directions, relating to any aspect of a protected action ballot.

(4) The Commission may decline to consider a person's submission if the Commission is satisfied that the submission is vexatious, frivolous, misconceived or lacking in substance."

[5] Section 457 is also important to the argument and provides:

"457 Commission to act quickly in relation to application etc.

(1) In exercising its powers under this Division, the Commission:

(b) must, as far as is reasonably possible, determine all applications made under this Division within 2 working days after the application is made.

Note: In exercising its powers, the Commission is also required to act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms (see paragraph 110(1)(c)). It is not bound by the rules of evidence, and may inform itself in any manner it considers just (see paragraph 110(1)(b)).

(2) However, the Commission must not determine an application for a ballot order until it is satisfied that:

(a) the applicant has complied with section 454; and

(b) the persons referred to in subsections 458(1) and (2) have had a reasonable opportunity to make submissions in relation to the application.

[6] The CEPU contended that the legislature has turned its mind to what parties are entitled to do in relation to an application for a ballot order and has determined that they should be permitted to make "submissions". By implication, it was said, the Parliament intended that the parties are limited to making submissions and are not permitted to lead evidence. Counsel relied upon a principle of statutory construction referred to by the Latin maxim expressio unius est exclusio alterius (an express reference to one matter indicates that other matters are excluded). Counsel argued that the express reference in s.458 of the entitlement of parties to make "submissions" meant that the legislature intended to prevent the parties from doing anything else on the hearing of an application under s.451 and, in particular, intended to prevent parties from leading evidence.

[7] Section 111(1)(b) of the Act confers a power on the Commission to "take evidence on oath or affirmation" in relation to "proceedings" before the Commission. An application under s.451 is undoubtedly a proceeding before the Commission and, prima facie, s.111(1)(b) applies and authorises the Commission to receive evidence on such an application. At this point counsel for the CEPU relied upon another principle of construction referred to by the Latin maxim generalia specialibus non derogant (where there is a conflict between general and specific provisions, the specific provisions prevail) to argue that s.457 and s.458 (specific provisions) exclude the operation of s.111(1)(b) (a general provision).

[8] The leading text on statutory interpretation is Pearce and Geddes Statutory Interpretation in Australia, presently in its sixth edition_._ The learned authors' consideration of the maxims expressio unius est exclusio alterius [1] and generalia specialibus non derogant[2] make it clear that the rules or principles to which these maxims refer are properly described as aids to construction and should not be applied in some rigid, mechanical or automatic fashion. The learned authors refer to the leading decisions and note that "the application of the expressio unius approach will be largely one of impression"[3] and observe that "because of ... problems with respect to its use, the expressio unius est exclusio alterius rule is applied by the courts with extreme caution."[4] They refer, to the judgment of Long Innes J in Rylands Brothers (Aust) Ltd v Morgan[5] where his Honour noted that the expressio unius maxim "must always be applied with caution and only in appropriate cases"[6] and adopted the reasoning of Wills J in Colquhoun v Brooks[7] where Wills J observed:

"I may observe that the method of construction summarised in the maxim expressio unius exclusio alterius is one that certainly requires to be watched. Perhaps few so-called rules of interpretation have been more frequently misapplied and stretched beyond their due limits. The failure to make the expressio complete very often arises from accident, very often from the fact that it never struck the draftsman that the thing supposed to be excluded needed specific mention of any kind."

[9] The learned authors then refer to the decision of the High Court in Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) [8] where the Court observed that the expressio unius maxim

"...must always be applied with care, for it is not of universal application and applies only where the intention it expresses is discoverable upon the face of the instrument ... It is 'a valuable servant, but a dangerous master'..." [9]

[10] The learned authors set out a number of High Court authorities in which these general sentiments have been reiterated.

[11] In relation to the maxim generalia specialibus non derogant, the learned authors note:

"The generalia specialibus approach should only be called in aid 'where there are two inconsistent provisions which cannot be reconciled as a matter of ordinary interpretation' (Purcell v Electricity Commission of New South Wales [1985] HCA 54; (1985) 60 ALR 652 at 657), where 'contrariety is manifest': Reseck v FCT [1975] HCA 38; (1975) 133 CLR 45 at 53."

[12] The resolution, by courts and tribunals required to act judicially, of factual issues by reference to evidence is a feature of our system of law so fundamental that when the legislature confers on such a body a power to make an order, and conditions the exercise of that power on the existence or non-existence of particular facts, it should be presumed that the legislature intended that the court or tribunal would resolve disputes about the existence or non-existence of those facts by reference to evidence. Displacement of that presumption would require a clear contrary intent. I am not satisfied that such an intent is exhibited in relation to the making of orders pursuant to the power conferred by s.461.

[13] In this context I note it is a thoroughly entrenched feature of the Commission's jurisprudence that, while the Commission can act on uncontested submissions as though they were evidence, the Commission cannot act on contested submissions in the absence of evidence. [10] If the Commission were only permitted to act on submissions in determining whether the requirements of s.461 are satisfied then, in the face of contested submissions, the principle to which I have just referred would prevent the Commission from making any determination. This is a significant factor against the construction of s.458 for which the CEPU contends.

[14] More importantly, I am not persuaded that the expressio unius approach is properly applicable to the construction of s.458. I am simply not persuaded that the words of s.458, when construed in context, evince an intention by the legislature that parties should be confined to submissions only and should not be permitted to call evidence. The Act is not the finest example of the draftsperson's art. In my view, this is a case where, to adopt the words of Wills J, it never struck the draftsperson that the thing supposed to be excluded needed specific mention of any kind. It seems to me that the purpose of s.458 is to ensure that, notwithstanding the short timeframe within which the Commission must endeavour to determine applications for ballot orders [11], the Commission nevertheless provides all relevant persons with an opportunity to be heard. This includes not only the parties to the application but also extends to "relevant employees", that is, employees who are members of the applicant union and whose employment will be subject to the proposed agreement.[12] In the absence of s.458, such employees would not have had an automatic right to make submissions in relation to an application for a ballot order and would have needed to seek leave to intervene in the proceeding. A grant of leave to intervene is discretionary. In the absence of s.458, an application for leave to intervene by a relevant employee would not necessarily be granted. The fact that the applicant union represents the industrial interests of the relevant employees and the short timeframe for determination of applications under s.451 could well have weighed against permitting intervention to relevant employees in a particular case. Section 458 ensures that relevant employees always have a right to make submissions. I am not persuaded that the inclusion in s.458 of a reference to "parties", as well as "relevant employees", was intended to deprive parties of a right to lead evidence in relation to the jurisdictional facts upon which the power to make a ballot order is conditioned.

[15] In my view, s.111(1)(b) provides the Commission with power to receive evidence when determining whether the requirements of s.461 have been met. The note to s.457(1) underscores this conclusion: emphasising that, by virtue of s.110(1)(b), the Commission is not bound by the rules of evidence would be pointless if the legislature intended that the parties could not lead evidence). The generalia specialibus approach does not assist the CEPU because s.111(1)(b) is not properly to be viewed as inconsistent with s.458. The inconsistency for which the CEPU contends depends upon the acceptance of the CEPU's construction of s.458. For the reasons I have given I am not satisfied that, on its proper construction, s.458 has the effect for which the CEPU contends.

Mr R Reitano of counsel for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

Mr M Tehan of Minter Ellison for the Australian Postal Corporation.

Printed by authority of the Commonwealth Government Printer

[5] [1927] NSWStRp 18; (1927) 27 SR (NSW) 161

[7] 19 QBD 400 at 406

[8] [1982] HCA 2; (1982) 148 CLR 88

[10] The principle was established in R v Commonwealth Conciliation and Arbitration Commission and Others; Ex parte The Melbourne and Metropolitan Tramways Board [1965] HCA 50; (1965) 113 CLR 228 at 243 (per Barwick CJ) and 252 (per Menzies J) and has been applied by numerous Full Benches of the Commission.

[11] Section 457(1)(b) requires the Commission to, as far as is reasonably possible, determine all applications within two working days after the application is made.

[12] See s.457(2)(b), s.458(1) and the definition of 'relevant employee' in s.450