Electrical Contractors Association of New South Wales v Electrical Trades Union of Australia, New South Wales Branch and Anor

Electrical Contractors Association of New South Wales v Electrical Trades Union of Australia, New South Wales Branch and Anor - [2003] NSWIRComm 404 - NSWIRComm 2003 case summary — Zoe

SECOND RESPONDENT: John Goss Projects Pty Ltd FILE NUMBER: IRC 1994 of 2003 CORAM: Wright J President; Walton J Vice-President; O'Neill C Appeal - Enterprise agreement - Appellant not a party to enterprise agreement submitted to Commission for Approval - Appellant refused leave to appear in proceedings for approval of enterprise agreement - Statutory Construction - s 34(2) of Industrial Relations Act 1996 - Whether appellant had right of appearance in proceedings for approval of enterprise agreement or required the grant of leave - Held appellant had a right of appearance in proceedings for approval of enterprise agreement - Leave to appeal granted - Appeal upheld in this respect. CATCHWORDS : Enterprise agreement - Content of enterprise agreements - Appellant contended four clauses were not capable of being included in an enterprise agreement approved by the Commission - Construction of Part 2 of Chapter 2 of the Act - Whether clauses were conditions of employment - Whether clauses were industrial matters - Meaning of "industrial matter" considered - Held impugned clauses were industrial matters and were capable of being included in an enterprise agreement - Leave to appeal granted - Appeal dismissed insofar as it sought to overturn the approval of the agreement. LEGISLATION CITED : Industrial Relations Act 1996 ss 34 35 38 191 192 Trade Practices Act 1974 (Cth) s 45E A v The Commission of Children and Young People (No.4) (2000) 104 IR 131 Akins v National Australia Bank (1994) 34 NSWLR 155 Allan v Transurban City Link Limited (2001) 208 CLR 167 AMWU v Alcoa of Australia Ltd and Others (1996) 63 IR 138 Australian Tramway Employees Association v Prahran and Malvern Tramway Trust (1913) 17 CLR 680 Big W Discount Stores v Donato (1994) 58 IR 239 Building Workers Industrial Union of Australia v Odco Pty Ltd (1991) 99 ALR 735 Campbell's Cash & Carry Pty Limited v National Union of Workers', New South Wales Branch Award (2001) 104 IR 385 Campbells Cash and Carry Pty Ltd v National Union of Workers, New South Wales Branch (No 2) (2001) 106 IR 429 CCH Australia Ltd v Bowen (1998) 79 IR 206 Centurian Constructions Pty Ltd v Beca Developments Pty Ltd (In Liquidation) [1999] NSWCA 457 Club Employees (State) Award [2002] NSWIRComm 362 Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435 Devenish v Jewel Food Stores Pty Ltd (1991) 172 CLR 32 Employers Federation of New South Wales v New South Wales Nurses' Association and Others (1995) 64 IR 194 Federated Clerks Union of Australia v Victorian Employers Federation (1984) 154 CLR 472 Glover v Australian Ultra Concrete Floors Pty Limited [2003] NSWCA 80 In Re Moore, Exparte Federated Miscellaneous Workers' Union of Australia (1978) 140 CLR 470 Knowles v Anglican Church Property Trust No.2 (1999) 95 IR 380 Lend Lease Hotel Intercontinental (Stage 1) Project Award [2003] NSWIRComm 314 CASES CITED : Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435 Metals And Engineering Workers' Union - Western Australia Branch v Robe River Iron Associates (1995) 63 IR 243 National Union of Workers' v Graincorp (2002) 117 IR 136 New South Wales TAFE Commission (Teachers and Other Educational Staff) Salaries and Conditions Award 1996 [1999] NSWIRComm 234 Nominal Defendant v Manning (2000) 50 NSWLR 139 Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 Orr v Holmes (1948) 76 CLR 632 R v Booth, Ex parte Administrative & Clerical Officers' Association (1978) 141 CLR 257 R v Portus, Ex parte ANZ Banking Group (1987) 127 CLR 358 Alcan Australia Limited & Ors Ex parte Federation of Industrial, Manufacturing and Engineering Employees, Re (1994) 181 CLR 96 Laundry Employees (State) Award (No.2), Re (1993) 49 IR 91 NSW Education Employees (Non Continuing Contract Employment) Award, Re (1999) 92 IR 239 Review of Principles for Approval of Enterprise Agreements 2002, Re [2002] NSWIRComm 342 Rothmans of Pall Mall (Australia) Limited (Smithfield Warehouse Employees) Consent Award (1995) 85 IR 149 Teachers - St Lucy's School Ltd Enterprise Agreement 1999 and Others [2001] NSWIRComm 4 Textralian Enterprises Pty Ltd v Perpetual Trustees Victoria Ltd [2000] NSWCA 176 The Queen v Industrial Relations Commission of South Australia, Exparte Master Builders Association of South Australia Incorporated [1981] SASR 535 Townsend v Townsend [2001] NSWCA 136 Transport Workers' Union of Australia, New South Wales Branch v Movers & Shakers Business Relocations Pty Limited (2001) 109 IR 249 Turner v Jupiters Mangement Limited (1989) 29 IR 276 at 277 Victims Compensation Fund Corporation v Sarah Jane Hill [2000] NSWCA 75 Wilson v The Prothonotary [2000] NSWCA 23 HEARING DATES: 04/30/2003; 05/22/2003; 05/29/2003; 07/07/2003; 07/11/2003; 07/29/2003 DATE OF JUDGMENT: 12/02/2003

[53]

32 It was "this context" in which the Commission turned to consider s 6(2)(i) of the statute. The Full Bench emphasised the collective theme in the statute at [104] and following in this way: 104 These matters are of significance, on Mr Shaw's submission, as the Act expressly recognised that organisations of employees and employers are "fundamental to the purposes of the Act" and ought be encouraged. The Commission, would be acting in accordance with its "legislative charter" if it positively encouraged not only the formation of such bodies but their vibrant, lively and continued existence by facilitating ease of membership and the maximum migration of membership. We agree. 105 We have earlier referred to the strong collective theme which underlies the Act. Whilst Mr Shaw took us to a number of authorities dating to the earlier parts of last century in support of his construction of the Act: see Australian Tramway Employees Association and Brisbane Tramways Company Limited (1912) 6 CAR 35, Australian Builders Labourers Federation v Archer (1913) 7 CAR 210, Australian Ship and Wharf Workers Association v Waterside Workers' Federation of Australia (1919) 13 CAR 4, Federated Clothing Trades of the Commonwealth v Archer (1919) 13 CAR 647, Federated Clerks Union of Australia v Altona Petrochemical Company Pty Limited (1973) 150 CAR 387, it is not necessary to embark upon a detailed historical analysis to determine the object or purpose of the current statute. 106 Although we have had regard to those authorities and the dicta in them as to positively facilitating and encouraging registered organisations, or as to taking such aspects into account in the exercise of the tribunal's functions and jurisdiction , and readily recognise that observations upon the construction of statutes in similar form may be of assistance to our task, we would emphasise, in accordance with our observations on the appropriate construction of statutes, the Commission must relate the exercise of its jurisdiction to the statutory mandates and limitations in the Industrial Relations Act.

[97]

75 In Bowen, having been referred to decisions including Orr v Holmes (1948) 76 CLR 632 and Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435, the Full Bench held (at 211): We have a concern that the authorities in the High Court to which we were referred as to the tests to apply in considering whether to allow further evidence on appeal were all in the context of applications for a new trial. Having in mind the terms of s 191(2) of the Act, and the powers on appeal available under s 192(1) thereof, we would not wish it to be taken as our view that for further evidence to be heard on an appeal it must necessarily be of such a nature as would make it almost certain that an opposite result would have been reached if the evidence had been adduced at first instance. As Dixon J said in Orr v Holmes (at 642) - ''But the evident purpose (of the applicable tests) is to ensure that new trials will not be granted because of fresh evidence unless it places such a different complexion upon the case that a reversal of the former result ought certainly to ensue'' (emphasis added). Given that each case requires consideration in light of its own particular circumstances, it seems to us only open to hold, as the Full Commission did in Donato (at 243), that the purpose of fresh evidence is to avoid ''a miscarriage of justice'' and, as Northrop J said in Turner (at 277), that the power to allow further evidence on appeal ''is exercised rarely and in exceptional circumstances only''. Our opinion is that the potential mischief if the evidence not be admitted must be sufficiently operative on the challenged decision and as would cause real prejudice to the party seeking to lead such additional evidence if it were not given. We would emphasise, however, that if the further evidence would likely lead to disputed questions of fact or involve the credibility of witnesses then ordinarily it should not be heard by the Full Bench itself but by a single member pursuant to the courses on appeal available under s 192(1), either the member who made the challenged decision or another member sitting alone depending upon the circumstances involved.

[133]

111 A copy of the MOU was annexed to Mr Boyce's affidavit and was in the following terms: The parties agree to the enforcement of the following clauses under this Memorandum of Understanding, as from 10 December 2002 to remain in force until 30 October 2005. This memorandum is to operate in conjunction with the Company Enterprise Agreement registered in the NSW Industrial Relations Commission and the Electrical, Electronic and Communications, Contracting Industry State Award. The parties agree that should this agreement contain any provision found in the New South Wales Industrial Relations Commission, then it will automatically become void. It is not the purpose of this document to bind any third party or to attempt breach section 45D or 45E of the Trade Practices Act. The parties agree that the intent of this document to promote a productive environment for efficiency in the workplace while securing equality of conditions of employment. 1. Supplementary Labour The parties agree that when necessary to meet short -term peak work requirements additional labour resources will be sourced from Labour Hire Companies who have an enterprise agreement with the union signatory to this agreement. 2. Subcontracting The parties agree that when it becomes necessary to sub contract work, due to high demands within the industry, the company will endeavour to ensure that the sub contractor has a registered Enterprise Agreement with the Union. The Union commits to only sign an agreement with the same rates of pay contained in this agreement, so as to maintain a level playing field for all companies within the industry. 3. Group Training Companies The company when hiring apprentices or trainees from a Group Training Company shall advise the Group Training Company in writing before hiring that: · They need to have an Enterprise Agreement with the union · The apprentices and trainees hired to the company shall be paid at least the rates and conditions of this agreement The Group Training Company shall be notified if a site/project allowance is payable. 4. Bargaining Agents Fee The company shall advise all existing employees that a "Bargaining Agents Fee" of $339.00 (or at the rate of the current annual Tradesmen's ticket for that year) is payable to the Electrical Trades Union of Australia, New South Wales Branch (ETU) on or prior to 16 December. This bargaining fee is to be paid annually. The company shall also advise all new employees prior to commencing work for the company that a Bargaining Agent Fee of $339.00 (or at the rate of the current annual Tradesmen's ticket for that year) per annum is payable to the ETU on or prior to the 16 December. The company will provide to all new employees an authority to deduct the Bargaining Agents Fee from their wages before commencement of employment. The relevant employee, to which this clause shall apply, will pay the Bargaining Agents Fee to the ETU on a pro-rata basis for any time, which the employee is employed by the company. By arrangement with the ETU this can be done via instalments throughout the year. If an employee can demonstrate to the ETU that are no longer employed by the company, then they are entitled to apply to have such fees reimbursed on a pro-rata basis.

[233]

160 We now turn to the other challenged provisions. Provisions of this nature have been long recognised as industrial matters within similar or comparable industrial statutes: see for example the observations of King CJ, with whom Mohr J agreed, in The Queen v Industrial Relations Commission of South Australia; Exparte Master Builders Association of South Australia Incorporated [1981] SASR 535, where, having determined that "the strictly literal reading [of the definition of "industrial matters" in the relevant South Australian statute] must be controlled by the context in which the words are found and the evident purpose of the Act", his Honour held: The Act is not concerned with matters which are unrelated to the relationship of employer and employee, but the fact that a matter affects other relationships does not necessarily mean that it is not also concerned with the relationship of employer and employee. The definition of "industrial matter" embraces "any matter, situation or thing … affecting or relating to … the privileges, rights or duties of employers or employees or persons intending to become employers or employees in any industry". The natural meaning of these words is wide and I see no reason to restrict the natural meaning. The Act manifests a clear intention to give the Industrial Commission wide powers to adjudicate upon and to resolve disputes concerning matters which might reasonably be regarded as affecting the employer and employee relationship or which might be the source of disharmony in that relationship. Clearly there may be causes of disharmony between employers and employees which are totally unrelated to the relationship and which could not be regarded as arising from or relating to industrial matters, but, to my mind, the legislature has indicated its will that the Industrial Commission should be a tribunal to which employers and employees can resort to have a decision upon all issues which can legitimately be regarded as industrial issues and which might otherwise result in industrial conflict. If this is the true policy of the Act, as I think it is, it would be quite inconsistent with that policy to place a restrictive interpretation upon the naturally wide meaning of the words "affecting or relating to" in the definition.

[240]

167 Jacobs J, in delivering the judgment of the majority (Gibbs J and Stephen J agreed with his Honour), held (at 477 - 478): There remains the argument depending on cl. 5 of the draft award. As I understand it, it is not submitted that such a clause can never be part of an award. Whether or not it can be depends upon whether Reg. v. Commonwealth Industrial Court Judges; Ex parte Cocks (1968) 121 CLR 313 has a wider application than the question actually decided in that case, namely, that an issue whether employers should have work done by independent contractors outside their factory or workshop was not an industrial matter within the definition of those words in the Conciliation and Arbitration Act . It is said that in the circumstances of this case, where most, almost all, of those employed in the construction of the mining installations and associated works will be employed by contractors and not by the respondent companies, the insertion of such a clause in the award would be without jurisdiction. However, the presence of a claim in a log of claims, even if it be one which does not involve an industrial matter, does not provide a reason for the grant of prohibition or certiorari. That is sufficient to dispose of the argument based on cl. 5. But it cannot be assumed that under no circumstances could the insertion of such a clause in an award settle a dispute as to an industrial matter. Here the evidence shows that the construction works will be large and extensive. It cannot be assumed that the respondent companies - both the mining and the project companies - will not be exercising continued supervision and co-ordination. It may well be that if the Commission considered it proper in order to achieve a settlement of existing or threatened disputes between the companies and their employees that the same award conditions should apply throughout the work of constructing the mines and their associated installations, it would be open to it to achieve that result by the insertion in the award of a clause along the lines of cl. 5. If the Commission could not do so, it would mean that the respondent companies could largely avoid the effective imposition on what will be in substance their activities of award conditions considered appropriate to construction work in or in connexion with the uranium mining and processing industry . The question should not be determined until the facts are fully explored and the basis of the Commission's decision (if it should be its decision) is known. (our emphasis)

[251]

177 We note, our preliminary view of s 38, is that it confines the matters which maybe included in an enterprise agreement to "conditions of employment" as defined, although such an agreement need not codify the terms and conditions of the relevant group of employees. We would, however, indicate our agreement with what was said by Walton J, Vice-President in Teachers - St Lucy's School Ltd Enterprise Agreement 1999 and Others [2001] NSWIRComm 4, where, having identified one of the issues which fell for discussion in that matter was "whether the terms of the agreements, being non-prescriptive in nature and merely stating broad objectives for the employment of teachers at the schools, are appropriate for approval", held (at [25]): 25 In my view, provisions incorporated in enterprise agreements, which essentially state broad objectives and which are non-prescriptive in their nature and character, are permissible under the Act and may materially assist in the establishment of co-operative workplace reform and equitable, innovative and productive workplace relations consistent with the objects of the Act (see s3(h) of the Act). So much was recognised by the Full Bench of the Commission in Re Review of Principles for Approval of Enterprise Agreements 2000 (at 73) (albeit in the context of examining provisions in awards) as follows: The expression "conditions of employment" should be construed as meaning the terms of employment which are found within the relevant awards. In modern awards, the terms of the award may not simply constitute traditional prescriptions such as rates of pay, allowances and non-monetary entitlements such as leave entitlements or hours of work. The non-monetary benefits found within awards are often not confined to such terms but also extend to terms which are more general in nature and less prescriptive in effect. Many awards contain consultative provisions, dispute settlement procedures and provisions relating to flexibility which do not confer specific monetary benefits or other entitlement upon employees but which may, in the particular circumstances of employment, nonetheless represent a benefit for an employee which may be taken into account under s35(1)(b). The terms of an award may also include references to the aspirations and objectives of the parties, the establishment of milestones or other achievement goals and the establishment of co-operative work arrangements such as team based structures. All of these terms in awards conform broadly with the objects of the Act in s3(h). That sub-section is in the following terms: "To encourage and facilitate co-operative workplace reform and equitable, innovative and productive workplace relations".

[278]

191 What relevantly constitutes "prevent or hinder", was considered by the High Court, in the context of s45D of the TPA, in Devenish v Jewel Food Stores Pty Ltd (1991) 172 CLR 32 where Mason CJ, having emphasised that: When a provision in a statute is intended to be protective and remedial and to that end proscribes certain conduct, strong reasons are required to justify an interpretation of the provision which would narrow the scope of the provision and exclude conduct falling within its literal terms. then stated (at 45 - 46): The second reason advanced by the appellants in support of restricting the operation of s 45D(1) through the introduction of the word "directly" was that several other sections in Pt IV of the Act use the words "directly or indirectly" in relation to conduct covered by those sections. From this the Court is invited to infer that the absence of the phrase "directly or indirectly" in s 45D (1) means that the reference in that section to "hinders or prevents" must be a reference to "directly hinders or prevents". While there is some force in this submission, the interpretation is equally open that an unqualified reference to hindrance or prevention means hindrance or prevention of any kind, whether direct or indirect. The evident wide scope of s 45D(1) and the broad interpretation which should be afforded to that section together militate against restricting its terms and provide a strong reason for inclining to the wider interpretation. Further, it cannot be, and indeed was not, suggested in argument that the notion "direct" is inherent in either of the words "hinder" or "prevent". "Hinder" has been construed in England "in the general sense of in any way affecting to an appreciable extent the ease of the usual way of supplying the article" (emphasis added): Tennants (Lancashire) Limited v. C.S. Wilson and Company Limited (1917) AC 495, per Lord Dunedin at pp 513-514; Peter Dixon and Sons Ltd. v. Henderson, Craig and Co. (1919) 2 KB 778, at p 786. What was there said in relation to hindrance of supply would apply with equal force to hindrance of acquisition. The comments of Gibbs J. relating to the words "prevent or hinder" in Reg. v. Bell; Ex parte Lees (1980) 146 CLR 141 , at pp 147-148, must be seen in the context of that case. As his Honour observed, a broad construction would have effected a very drastic interference with ordinary civil rights: at p 148. There is no similar reason for rejecting a broad interpretation of those words in this case. As has been said, such an interpretation is entirely consonant with the purpose of the section.

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