Building, metal and civil Various employees construction industries

SENIOR DEPUTY PRESIDENT RIORDAN DEPUTY PRESIDENT WILLIAMS COMMISSIONER PALMER MELBOURNE, 12 DECEMBER 1994

Industrial unions - exclusive representation - appeal - claimed s.118A was constitutionally invalid as it constituted an acquisition of an organisation's property - rejected - doubtful that rights as regards representation could be regarded as property for the purpose of s.51(xxxi) of the Constitution - no merit in argument that s.118A is contrary to ILO Conventions - no jurisdictional error - no ambiguity in order - leave refused.

On 9 November 1993, Deputy President MacBean (as he then was) published a decision [Print K9844] arising out of an application by the Construction, Forestry, Mining and Energy Union (CFMEU) for orders pursuant to s.118A of the Industrial Relations Act 1988 (the Act) in respect of employees in the building and/or construction industry.

The CFMEU application was lodged in the Registry on 6 March 1992 and, after some initial hearings before Deputy President Watson, the substantial hearings took place before Deputy President MacBean over some 28 days during 1992 and 1993. During the course of the proceedings, the CFMEU's application was amended so that the orders actually sought by that organisation were in the following terms:

"(1) (a) The CFMEU shall have the right to the exclusion of FIMEE to represent under this Act the industrial interests of any

person employed or engaged by any person, body, corporation, employer or principal who is engaged in the building and/or construction industry.

(b) Provided that nothing in paragraph (a) hereof shall apply to:

(i) employees of a contractor who is engaged for the sole purpose of installation, repair or maintenance of lifts, escalators or air conditioning plants;

(ii) labourers engaged on a building or structure which building or structure is for the purpose of housing mechanical or electrical plant (other than workshop equipment) on a civil or mechanical engineering site;

(iii) employees engaged by a metal engineering contractor on

(2) Nothing in this Order shall grant to the CFMEU exclusive representative rights as against the EPU in relation to any person

On the same day as he published his decision, Deputy President MacBean issued an order [Print K9874] giving effect to that decision. Both the decision and the order were later the subject of correction orders [Prints K9920 and K9919]. The order, as corrected, was in the following terms:

"A. Further to the decision issued by the Commission in Sydney on 9 November 1993 (Print K9844), the Commission makes the following orders:

(a) That the Construction, Forestry, Mining and Energy Union (CFMEU) shall have the right, to the exclusion of The AWU-FIME Amalgamated Union (AWU-FIME) to represent under the Industrial Relations Act 1988 (Cth) (the Act) the industrial interests of any person employed or engaged by any person, body, corporation, employer or principal who is engaged in the building and/or

construction industry in the occupation of a carpenter and/or joiner.

(b) Provided that nothing in subclause 1(a) hereof shall apply to:

Nothing in this order shall affect the representative rights

of the AWU-FIME that arise from that part of the rules that represented the rule of The Australian Workers' Union (AWU) prior to its amalgamation with the Federation of Industrial, Manufacturing and Engineering Employees (FIMEE) on 1 November

Nothing in this order shall affect the representative rights

of the AWU-FIME that arise from that part of the rules that represented the rules of FIMEE prior to its deregistration on 1 November 1993 save and except those persons identified in subclause 1(a) of this order.

The making of these orders shall not alter and/or affect in any way:

(a) the 1986 demarcation agreement between The Building Workers' Industrial Union of Australia (BWIU), The Federated Engine Drivers' and Firemen's Association of

Australasia (FEDFA) (together now forming the CFMEU) and AWU (now amalgamated with FIMEE to form the AWU-

FIME) and the 1992 demarcation agreement between the Construction, Forestry and Mining Employees Union, the FEDFA (now the CFMEU) and the AWU (now AWU-FIME), tendered and marked as exhibits FIMEE 10 and CFMEU 20 respectively.

(b) the 1986 demarcation agreement between the BWIU, the FEDFA (together now forming the CFMEU) and The

Federated Ironworkers' Association of Australia (now the AWU-FIME) tendered and marked as exhibit FIMEE 5.

Nothing in this order shall affect the representative rights of the Automotive, Metals and Engineering Union (AMEU).

Nothing in this order shall grant to the CFMEU any representative rights as the Electrical, Electronic, Plumbing and Allied Workers Union of Australia (EPU) in to any person

The Commission, pursuant to s.118A(5) of the Act, refers this matter to a designated Presidential Member.

B. These orders shall come into force on and from 23 November 1993 and shall remain in force for a period of three years."

The AWU - FIME Amalgamated Union (AWU-FIME) has appealed against the decision and order made by his Honour.

Having regard to the circumstances of the matter, it has been expedient to deal with the question of leave to appeal as a threshold matter.

AWU-FIME submitted that the matters raised by the appeal are of such importance that in the public interest leave to appeal should be granted on the following grounds:

. the Deputy President acted in absence of/beyond jurisdiction;

. the Deputy President failed to "act according to equity, good conscience and the substantial merits of the case" as required by s.110 of the Act; and

. the Deputy President's failure to define the "building and construction industry" has led to disputation on several construction sites.

In support of the first of these grounds, AWU-FIME submitted:

. that the order of the Deputy President amounts to an acquisition of the property of AWU-FIME on terms that cannot be described as just and, therefore, offends against a basic civil right said to be guaranteed by the terms of s.51(xxxi) of the Constitution;

. that the order was made under s.118A of the Act and, as such, that

section and the order are contrary to s.51(xxxi) of the Constitution; and

. that the order made in this matter under s.118A of the Act and the use to which that section was put are contrary to Conventions of

the International Labour Organisation ratified by the Australian Government.

The validity of s.118A was not raised in the proceedings before Deputy President MacBean. In so far as its validity is raised in these proceedings, we

note the following statement of a Full Bench of this Commission in The State Public Services Federation and Clerk of The Legislative Assembly and others [Print K7459]:

"The Commission does not exercise the judicial power of the Commonwealth and has no authority to consider the validity of Commonwealth laws other than as an incidence of construing them . . . when determining the nature and extent of our powers and functions".

In the same decision, that Full Bench went on to record the fact that the Commission had "on at least two occasions [Prints K7272 and K1066] recently . . . given effect to the approach adopted by Brennan J in Re Adams and the Tax Agents Board [(1976) 12 ALR 239]" where his Honour said:

"When an administrative body declines to exercise a power in consequence of its opinion as to the limits of the authority conferred upon it by statute, the administrative body thereby seeks to conform with the

expressed will of the legislature. But if an administrative body declines to exercise a power in consequence of its opinion that the legislature could not confer the relevant authority upon it, the will of the legislature expressly conferring that authority would, at least for a time, be overridden. Moreover, that will would be overridden without judicial consideration. A consequence of such gravity throws doubt upon the proposition that an administrative body ought to consider the constitutional validity of a statute affecting its power." [(1976) 12 ALR 239 at 243]

We agree that, unless there is a clear case of constitutional invalidity, it is inappropriate for the Commission, not being a body which exercises the judicial power of the Commonwealth, to consider questions concerning the validity of provisions of the Act.

We find no merit in the proposition that an order under s.118A of the Act constitutes an acquisition of an organisation's property.

Section 118A is primarily concerned with the representative rights of employee organisations in the federal system of industrial relations not with the rights of such organisations to enrol members. Any order made in relation

to enrolment rights is a consequential (and not necessarily automatic) effect of the representative order. We have no doubt that the right to represent a specified class of employees and the right to enrol that class as members are generally considered to be valuable rights conferred on an organisation upon, and as a result of, registration under the Act. We have grave doubts that these rights could be regarded as "property" for the purposes of s.51(xxxi) of the Constitution. But, even if they were, the making of the order under s.118A of the Act in this case in no way constituted an "acquisition" of that property by any person, organisation or other body.

It was not, and is not, contested that the CFMEU, in accordance with its eligibility rules, has the right and capacity to enrol and represent the relevant employees. The effect of the s.118A order is to make that right an exclusive one in so far as the AWU-FIME is concerned and to take away from the AWU-FIME any right it may have to represent those employees. There has been, therefore, a removal of a right from the AWU-FIME but no transfer to or acquisition by the CFMEU or any other body of that right. To paraphrase the High Court in R v. Ludeke; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation and another [(1985) [1985] HCA 84; 159 CLR 636 at 653], there is nothing in the order that provides for the acquisition of any of the AWU-FIME's rights - they may be extinguished, but not acquired.

Equally we find no merit in the argument that the order made under s.118A and the use to which that section was in this matter put are contrary to any Convention of the International Labour Organisation ratified by the Australian Government.

In this case, the relevant conventions are the Convention Concerning Freedom of Association and Protection of the Right to Organise and the Convention Concerning the Application of the Principles of the Right to Organise and to Bargain Collectively. The first of these is reproduced in part in Schedule 15 to the Act and the second is reproduced in part in Schedule 16.

It was not argued that the Conventions had been incorporated into Australian law for all purposes. The fundamental rule is that treaties or conventions, apart possibly from some such as those terminating a state of war, are not directly incorporated into Australian law on ratification and they do not directly affect the rights and duties of private individuals under that law. [Koowarta v. Bjelke-Peterson [1982] HCA 27; (1982) 153 CLR 168; 224 per Mason J; Simsek v. MacPhee and another (1982) 148 CLR 636, 641-2 per Stephen J; Kioa v. West [1985] HCA 81; (1985) 159 CLR 550 and 570 per Gibbs CJ] International conventions therefore will not, in the absence of legislation, create rights in or impose obligations

It is apparent from s.170PA of the Act that, in so far as parts of the Conventions have been inserted into the Act, they have been so inserted for the purpose of emphasising the reliance on the external affairs power for the validity of the provisions contained in Division 4 of Part VIB of the Act relating to immunity from civil liability in certain situations. Those provisions are concerned with giving effect, "in particular situations" to Australia's international obligation to provide a right to strike. The insertion into the Act of parts of the Conventions does not incorporate them into Australian law for all purposes, thereby in some way invalidating s.118A of the Act.

It was, however, argued that the provisions of s.170PA of the Act give effect to relevant terms of the Conventions so as to provide an organisation of employees with immunity from civil action and/or liability which might otherwise arise as a consequence of strike action taken by its members. An order made under s.118A(1) of the Act could, it was argued, remove from the AWU-FIME and its members the immunity from civil liability conferred by Division 4 of Part VIB in relation to action by any of its members whose industrial interests it could, as a result of the order, no longer represent. The removal of that immunity, it was argued, would be contrary to the Conventions as incorporated into the Act and an order under s.118A having that effect would therefore be contrary to the Conventions.

We do not accept that the order made under s.118A has that effect. As stated earlier in this decision, s.118A is primarily concerned with representative rights, not membership. An exclusive representation order made under that section may, amongst other things, prevent an organisation from representing the industrial interests under the Act of a particular class of members or potential members. It does not, of itself, prevent that organisation from being a party to a relevant industrial dispute and it does not terminate its respondency to awards.

The Act neither provides for nor guarantees freedom of association. Indeed, the system of registration of organisations, a principal object of the Act as specified in s.3(f) and the statutory powers given by Parliament to prevent and settle demarcation disputes appear to give a contrary direction. The High Court, in recent times, has recognised the importance of the system of registration in the following statement:

"The history of industrial regulation in this country has shown the desirability of ensuring that industrial representation is structured in the interests of employees and the industry in which they are engaged,

both for the purpose of avoiding demarcation disputes and for the purpose of ensuring effective industrial representation." [Re Coldham and others; Ex parte Brideson [1989] HCA 2; (1989) 166 CLR 338, 344; reiterated in Re Coldham and other Ex parte Brideson [No.2](1990) [1990] HCA 36; 170 CLR 267, 274]

As to the second ground, namely that the Deputy President failed to "act in accordance with equity, good conscience and the substantial merits of the case", we note that the Conventions in question existed at the time that the case was argued before Deputy President MacBean but no reference appears to have been made to them in the proceedings before him. Indeed, the case seems to have been argued on principles accepted by all parties as being the appropriate principles to be applied in s.118A cases.

The fact that the parts of the Conventions now appear in the Act is a matter which was not before the Deputy President because it did not occur until after he delivered his decision. It is a matter which may be used in support of any application to vary the order but is not a matter which should be available to an appellant against the order.

As to the third ground, that the failure to adequately define the term "building and construction industry" would lead to confusion and disputation about the coverage of carpenters and joiners who are employed "off site" by employers in the building and construction industry, we consider that the scope of the order is clearly a matter of construction. Nothing has been put to us that would convince us that there is any ambiguity in the meaning of the order. If such evidence were to come to light and/or it were to transpire that the order has a wider application than that which was debated in the proceedings or apparently intended by the Deputy President, an appropriate application can be made for a variation of the order.

Although the raising of a question of the Commission's jurisdiction does not of itself justify the granting of leave to appeal, where issues of jurisdiction are raised in a serious manner based on proper grounds, the Commission generally takes the view that leave to appeal should be granted. However, the degree of probability of there being an error of jurisdiction is also a factor to be taken into account. [Avram Holdings Transport Division v. Transport Workers Union of Australia Print H7740] In this case, no jurisdictional error has been established.

Similarly, no apparent error of fact or principle has been established. The order made by the Deputy President was open to him and he did not misapply

By facsimile dated 30 November 1994, the solicitors for AWU-FIME requested that the Full Bench be reconvened to allow AWU-FIME "to raise an important matter as part of" its application for leave to appeal. At the request of the Commission, the solicitors identified, by facsimile dated 7 December 1994, the "important matter" as concerning "the evidence of membership numbers of the CFMEU given by that party's witnesses in the proceedings" the subject of this appeal. It was stated that the Deputy President had placed excessive reliance upon the respective membership numbers of the organisations

concerned and that material has come to AWU-FIME's attention that the evidence given as to CFMEU's membership numbers may have been incorrect.

We note that it is not alleged that the evidence was incorrect. It is put no higher than that the evidence may have been incorrect. The alleged incorrectness of the membership numbers or any alleged significant change in such numbers are matters which, in our view, are more properly to be raised in an application to vary the orders made under s.118A(1). We do not accept that alleged important matter constitutes a ground for reconvening the Full Bench.

In the circumstances, we are unable to form the view that the subject matter of the appeal is of such importance that, in the public interest, an appeal should lie. We, therefore, refuse leave to appeal.

S. Rothman for the Construction, Forestry, Mining and Energy Union.