Consideration
38The question of whether an individual employee can be a party to an award and, therefore, able to seek to vary an award or set it aside, is to be determined according to the rules governing statutory interpretation. Those rules or principles were stated by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [69]; (1998) 194 CLR 355 at 381-382 as follows:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute (See Taylor v Public Service Board (NSW) (1976) 137 CLR 208 at 213, per Barwick CJ). The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole" ( Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320, per Mason and Wilson JJ. See also South West Water Authority v Rumble's [1985] AC 609 at 617, per Lord Scarman , "in the context of the legislation read as a whole"). In Commissioner for Railways (NSW) v Agalianos ((1955) 92 CLR 390 at 397), Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed ( Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 at 597; Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312 per Gibbs CJ, 315 per Mason J, 321 per Deane J).
39We also refer to the observations of the Full Bench as to statutory interpretation in Speirs v Springvale Coal Pty Ltd [2010] NSWIRComm 30; (2010) 200 IR 133 as follows (at [67] and [68]):
[67] Having made those observations, it is important to record what the current task of the court is in the interpretation of those statutes. We adopt, in that respect, what Spigelman CJ stated in Harrison v Melham [2008] NSWCA 67; (2008) 72 NSWLR 380 at [16] as follows:
The task of the court is to interpret the words used by Parliament. It is not to divine the intent of the Parliament. (See State v Zuma (1995) (4) BCLR 401 at 402; [1995] ZACC 1; [1995] (2) SA 642; Matadeen v Pointu [1998] UKPC 9; [1999] 1 AC 98 at 108; R v PLV [2001] NSWCCA 282; (2001) 51 NSWLR 736 at [82]; La Compagnie Sucriere de Bel Ombre Ltee v Government of Mauritius Privy Council , 13 December 1995, unreported; Pinder v The Queen [2002] UKPC 46; [2003] 1 AC 620.) The courts must determine what Parliament meant by the words it used. The courts do not determine what Parliament intended to say. (See Nolan v Clifford [1904] HCA 15; (1904) 1 CLR 429 at 449; R v Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 459; Wik Peoples v Queensland (1996) 187 CLR 1 at 168-168; Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1 at [10] and see the authorities discussed in R v Young supra at [5].)
[68] A further principle of statutory interpretation was stated by his Honour in Caterpillar Australia Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 83; (2009) 255 ALR 131 at [86]. It is also important in this matter. His Honour stated:
It is now well established that the contemporary approach to statutory interpretation requires a court to have regard to the context in which words appear in the first instance and not merely after some ambiguity has been identified. (See eg CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 184 CLR 384 at 405; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273 at [11].)
40The context in which s 11 and s 12 of the 1996 Act exists is the principal statute regulating the conduct of industrial relations in New South Wales. It is a statute with antecedents stretching back to the Industrial Arbitration Act 1901 ("the 1901 Act"), which established a Court of Arbitration with jurisdiction to hear and determine industrial disputes and to enforce awards and orders. The 1901 Act followed from a Royal Commission established following strikes in the 1890s "to investigate and report upon the causes of conflicts between capital and labour, known as strikes, and the best means of preventing or mitigating such occurrences and to consider from an economic point of examination, the measures that have been devised in other countries by the constitution of boards of conciliation or other similar bodies to obviate extreme steps in trade union disputes and to consider a report on the whole subject." According to Labour Historian Greg Patmore, "The NSW compulsory conciliation and arbitration system arose from the failure of collective bargaining and voluntary arbitration". (Greg Patmore (ed), Laying the Foundations of Industrial Justice: The Presidents of the Industrial Relations Commission of NSW 1902-1998, The Federation Press, Sydney, 2003, p 54).
41Provision was made in the 1901 Act for the registration of trade unions as industrial unions and only they, or the Registrar, could initiate proceedings before the Court: "New South Wales Industrial Laws", 4 th edition, 1977, Butterworths, CP Mills at 5. The limitation on the Court's jurisdiction to "dispute" cases meant that it could not make its decisions apply as common rules (Mills at 5). The Industrial Disputes Act 1908, however, did not require the existence of a dispute as a condition precedent for the exercise of the Industrial Court's jurisdiction (Mills at 5) and industrial boards were given power to make common rule awards, that is, awards binding on all employers in an industry or occupation whether or not they were involved in the making of the award and on employees in that industry or occupation. Common rule awards have remained a feature of the New South Wales system of industrial regulation to this day. The common rule provision found expression in the Industrial Arbitration Act 1912 ("the 1912 Act") at s 25 and s 29; in the Industrial Arbitration Act 1940 ("the 1940 Act") at s 87; in the Industrial Relations Act 1991 ("the 1991 Act") at s 104; and in the 1996 Act at s 12.
42The 1912 Act provided in s 31 that proceedings (including an application to the board for an award) could be commenced, inter alia , by an application signed by:
(a)an employer or employers of not less than 20 employees in any such industry or calling; or
(b)an industrial union whose members are employers or whose members are employees in any such industry or calling.
43This provision was maintained in the 1940 Act at s 74 and a similar provision appeared in the 1991 Act (at s 108). Section 11(2) of the 1996 Act broadened the scope of who might apply for an award by removing the limitation on employers of "not less that 20 employees" and added State Peak Councils.
44It has never been contemplated in any of the antecedent legislation to the 1996 Act that individual employees could be parties to awards. From the outset, the legislature relied on registered industrial organisations of employees to represent the interests of employees in an industry or calling in the award making process. This conformed with the stated objects of industrial legislation in New South Wales over this whole period. In the 1996 Act, this was reflected in the objects in s 3(d) and (g), the dispute resolution provisions in Ch 3 (noting that these processes are often the foundation for or actually result in award making) and the elaborate mechanisms for the registration of organisations in Ch 5. The notion of common rule ensured that the award made bound all employers and employees in the relevant industry or calling.
45In relation to s 87 of the 1940 Act, in Re Cotton Ginning, &c., Employees (State) Award & Anor [1972] AR (NSW) 237 the Commission heard applications from two individual employers to rescind, or declare null and void, variations of two awards affecting those employers which had earlier been made in circumstances where those two employers had not been served with, or given the opportunity to be heard in relation to, the applications for award variations. In that case Sheppard J held that a variation made to a common rule award without notice to any employer was not a nullity. His Honour stated at 242:
It must be remembered that although the Commission is required to act judicially in determining applications before it for an award or a variation thereof its awards and the variations of them which it makes operate as a common rule in the community (s. 87). The Act and the regulations made thereunder do not envisage that every person interested in an application will be notified of it.
They do envisage that steps will be taken to ensure that those employee and employer unions (as well as individual employers in certain cases) obviously interested will be notified.
46In his judgment, Sheppard J referred to the audi alteram partem rule ("hear the other side" - it is a principle of natural justice that no one shall be condemned unheard) in the context of the application of s 87 of the 1940 Act. At 246 his Honour stated:
It would not however seem to matter that the Industrial Commission is a tribunal which exercises both arbitral or quasi - legislative functions as well as judicial functions and was in relation to the variations under consideration here exercising arbitral functions.
In the end the question of whether the order of a tribunal such as this Commission, in circumstances where for one reason or another the audi alteram partem rule has been infringed, is to be regarded as a nullity must be answered by the construction of the statute which constitutes it and defines its functions and procedures. Of overriding importance in this connection are, in my opinion, the provisions of s.87 making the Commission's awards a common rule in the community.
Even where an applicant complies with the terms of reg. 38 there must be cases where one or more employers or groups of employers will be overlooked. This is unlikely in most cases but it will obviously happen from time to time simply because no reasonable amount of enquiry on the part of an applicant, even with the aid of the Registrar's records, will uncover the identity of all employers or the industrial unions which represent them. In such a case, however, a large number if not the bulk of employers will be notified either directly or through their unions and some employers will therefore turn their minds to what is sought in the application and decide to consent to it or to oppose it. It is true that there is no express provision in the Industrial Arbitration Act for representative parties to be appointed in proceedings before the Commission but the registration of industrial unions and the part which they play in the Commission's proceedings (although an employer is not bound to join such a union and is entitled to apply to be separately heard) means that the Commission does proceed in most cases with representative parties before it. In the case of employees this is always so in the case of an application made on their behalf (s.74(2)). In the case of an employer's application it is the appropriate industrial union or unions of employees which are served and employees are not individually notified. I shall have something to say later on about an association such as the co-operative here which in relation to one award does purport to represent the industrial interests of employers who are its members but is not registered as an industrial union. (emphasis added).
47Notwithstanding the position under predecessor legislation, the applicants claim that when one considers the provisions of s 11(3), s 11(4), s 12 and s 209 of the 1996 Act, which had no counterparts in the predecessor legislation, this constitutes a substantial shift and when considered with the provisions of the Regulations and Rules referred to earlier, it is clear that the legislature's intention was that individual employees could apply to become parties to awards.
48This is a contention at odds with the decision of Cahill J Re Cobar Mines Pty Ltd Consent Award 1995 , where his Honour stated:
The Commission ruled against the application for intervention made by Mr Roach. While it is true that the Commission possesses a wide discretion to allow intervention, the present circumstances, in my view, are insufficient to warrant the granting of intervention in the present case. The Act, with regard to award making, recognises the rights of application and appearance of industrial organisations of employees, not employees individually. So much is evident from s 11, which provides that an application for an award may be made only by an employer, an industrial organisation of employers or employees, or a State peak council, and that "anyone who can apply for an award may become a party to any proceedings for making an award". Section 17 of the Act, which empowers the Commission to vary or rescind an award, provides that s 11 shall apply in regard to any such variation or rescission. Section 166, relied on by Mr Roach, concerns representation of parties in proceedings.
The fact is, as I am informed, that all the unions parties to these proceedings had members employed under the award before the retrenchments took place. However, as I further understand the position, in 1997 a large number of employees who were members of the AWU made a conscious decision to resign from that body and join the Rural Workers Union, an unregistered organisation for the purposes of the Act. In doing so, they effectively ruled themselves out of representation in the award-making procedures prescribed by that legislation. It cannot reasonably be said, in the circumstances, that they should nevertheless be allowed to participate in such proceedings either individually or by an agent or by a body unrecognised by the Act, of which they are members, or that it would be a denial of natural justice if participation on such a basis were not permitted. (emphasis added)
49If, notwithstanding Cobar Mines , the applicants are correct in their contentions it would mean (and the applicants conceded this) that individual employees would not have standing to apply for the making of an award, but having been made a party to an award, the individual employees could apply to vary or rescind the award, to appeal any decision and indeed, to be engaged in any conciliation and arbitration process involving renewal or replacement of the award. In our view, this would create a chaotic situation (both in terms of award regulation and dispute resolution) and would undermine the status of registered organisations. There is no rational basis for bestowing status on a registered organisation to apply for an award and to be a party to an award to bind all employees in an industry or calling, only to provide individual employees with standing to vary or rescind the award or to participate in negotiations in respect of the making of the award or variation of the award. It would be completely inconsistent with the object of the 1996 Act expressed in s 3(d) "to encourage participation in industrial relations by representative bodies of employees and employers and to encourage the responsible management and democratic control of those bodies". It would not encourage representative bodies of employees if individual employees were given equal standing as a party to the making of a common rule award.
50If the applicants are correct, many thousands of individual employees could apply to become parties to the making of an award and each of them would be required to be served in relation to any application concerning the award: r 6.9(5) of the Commission's Rules. The applicants submitted that this would be manageable because the Commission would retain the discretion of having to be first satisfied that an individual employee had a sufficient interest in an award before he or she could be made a party. But if the provisions of Div 1 of Ch 2 of the 1996 Act are to be construed in the manner contended for by the applicants, namely, an individual employee may apply to become a party to the making of an award that is to bind the employee, it must follow that the employee would have sufficient interest. This would create its own acute difficulties in the case of enterprise awards, but, in the case of awards applying across sectors, occupations or industries, the result would be to render the system effectively unworkable, in a way that the legislature set its mind against by the provision of a system for the fair and orderly regulation of industrial relations.
51We would have expected such a radical change that departed from 110 years of relying on registered organisations of employees to be the representative body for employees in the making and administration of the award system, would have been clearly signalled by the legislature. But there is not the slightest indication in the explanatory memorandum or the Minister's second reading speech introducing the Industrial Relations Bill of any such intention (see Hansard, 23 November 1995, Legislative Council, at 3844-3860).
52The applicants made reference to the decision of the Full Court in Lynch v G C Schmidt Pty Ltd [1995] NSWIRComm 255; (1995) 59 IR 205. One of the complaints in that case by the respondent company was that Liddy J had not inquired into the matter of the persons who might be affected by and/or interested in the proceedings and the determination made therein and that the respondent had not been afforded a proper opportunity to be heard. The Court stated at 216-217:
The first question which arises is whether the 1940 Act and the regulations made thereunder required or envisaged that every application for a common rule award, order or determination was to be served upon all persons who may be bound by or affected by the common rule. In our opinion no such service was required or envisaged and indeed is at variance with the concept of a common rule.
There is no doubt that the former Commission was required to act judicially. But that requirement was qualified by the provisions and purposes of the 1940 Act, the nature and content of the matters thereby regulated, the powers and functions of the Commission and the practicalities of the jurisdiction exercised. Regulations 38 and 63 of the General Regulations and s.91M of the 1940 Act manifested the position that, so far as possible, applications for awards and/or determinations, common rule or otherwise, should have been served upon any parties or persons who had an interest therein, namely those who would be bound thereby. But there is an obvious difficulty, if not impossibility, in the case of a common rule, in determining, at a given point of time, the identity of each and every person involved in the industry to which the award or determination relates. The legislation in our opinion proceeded upon the basis that, having regard to the nature and content of the powers and jurisdiction vested in the tribunals, that those tribunals would act judicially to an extent which was consistent with the practicalities and the objects and requirements of the 1940 Act.
That duty has at its foundation the necessity to afford interested parties, so far as is reasonably practicable, an opportunity of being "heard" in any proceedings giving rise to the making of a determination which will bind them. However, the 1940 Act and the regulations thereunder also envisaged, having regard to their purposes and the obvious practicalities, that strict compliance with the requirements of the audi alteram partem rule was not possible. The difficulty was overcome by constituting what can be described as "representative" bodies of employers and employees (and principal contractors and contract carriers). Hence the detailed provisions in that Act providing for and regulating associations or unions of employers and employees respectively. The requirement of the audi alteram partem rule was generally satisfied in the practicalities of the matter by the hearing of representative parties which were given special status, rights and obligations under the 1940 Act. This, of course, is not to say that an individual who demonstrated an interest in a matter did not have the right to be heard therein. However, in the case of appearance, for example, by individuals of whom there may be many thousands in some cases, the resolution of any such issue, if one arose, would ultimately have resided in the discretion of the Commission; that discretion would have been exercised having regard to the feasibilities or practicalities involved and the necessity for some reasonably efficient conduct of proceedings and the doing of justice. However, by definition, it seems to us that the concept of a common rule excluded any strict application of the audi alteram partem rule.
53The applicants referred to that part of the judgment regarding an individual's right to be heard under the 1940 Act. It is to be noted that the Court did not determine, in terms, that an individual had a right to be heard and more to the point it did not determine that an individual could be made a party to an award, which is what the applicants contend for in these proceedings. Moreover, the Court at 219 agreed with what Sheppard J stated in Cotton Ginning , including that: "The Act, with regard to award making, recognises the rights of application and appearance of industrial organisations of employees, not employees individually." At 220 the Court stated:
The fact that the respondent in this case chose not to be a member of a New South Wales representative body of employers representing interests in the transport industry in the class of contracts involved in this case, but chose instead to join an organisation registered in the Australian Capital Territory, was a matter which suited the convenience of the respondent. This was a matter for him. So far as we are aware it has never been the practice in the New South Wales jurisdiction to require service of applications on unions or organisations registered in the federal jurisdiction or in other States. Nor indeed has it been or is it the practice in New South Wales to require service on all contract carriers in this industry or employees in other industries, with applications for awards or determinations, notwithstanding that they will be bound by any award or determination made in the proceedings. Indeed, as already observed, service in such circumstances would be quite impracticable if not impossible; it would defeat a cornerstone of the legislation, namely the making of common rule awards and determinations.
54A further case relied upon by the applicants concerning the 1991 Act was Re Laundry Employees (State) Award (No 2) . The case concerned an organisation of employers registered under federal law, but not the 1991 Act, which had sought to appear as agent for a number of New South Wales employers in proceedings involving the making of a new award. The passage relied upon by the applicants appears at 99-100:
In other cases the right of an organisation to appear in proceedings depends upon it being able to demonstrate a sufficient interest in the proceedings and their outcome. Where the interest is not direct but indirect it may nevertheless be such as to warrant the grant of leave to an organisation to intervene and appear in proceedings. A similar position obtains in relation to persons other than organisations. In order to be a primary party to or be granted leave to intervene in proceedings the person must establish, to the Commission's satisfaction, that it has a sufficient interest in the proceedings in the sense that it will be materially affected or bound by the outcome or such other sufficient interest to warrant its appearing in an being heard in the proceedings ...
It follows that the determination of whether a person who claims to be a party to proceedings is such a party and should appear therein are matters within the discretion of the Commission, such discretion, of course, to be properly exercised having regard to the relevant criteria.
55We do not think it can be claimed that the reference to "persons" in that part of the judgment cited by the applicants refers to any person other than an employer. So much is clear from the context, which included the issue of an individual employer's right to be made a primary party to the proceedings or a mere intervener. This is evident from what was stated at 101:
A claim by an employer to be made a party to a proceeding frequently goes without challenge. Normally a person does not seek to assume the inconvenience and expense of appearing in proceedings without good reason. Even if there is challenge the making out of a prima facie case is usually sufficient, certainly where party principal status is claimed. The making of a prima facie case would generally, in the case of award proceedings, require simple documentary or oral demonstration that the person concerned is an employer of labor (sic) who is bound by the existing award or will be bound by any award or order which may be the outcome of the proceedings. ...
The Laundry Employees case says nothing about the right of individual employees under the 1991 Act to be made parties to award proceedings. No analogy can be drawn because individual employers could, under the1991 Act, apply for an award and be made a party to an award. There was no such provision in relation to individual employees.
56The applicants, nevertheless, rely on the language of the relevant provisions of the 1996 Act. The applicants referred to the distinction in s 11(3) between, on the one hand, an applicant for an award and, on the other hand, a party to proceedings for the making of an award, which it submitted finds content in s 11(4) and s 12.
57Section 11(4) provides that "An applicant for an award, or to become a party to the making of an award, is required to satisfy the Commission that it or any one or more of its members has a sufficient interest in the proposed award" (emphasis added). A legislative intention to reverse over 100 years in the approach to award parties requires clear language. The language of s 11(4) only reinforces the notion that an applicant to become a party to an award is an entity other than a natural person. Whilst the language in s 11(4) lacks precision, it is not possible that the legislature chose to describe an individual employee seeking to become a party to the making of an award as "it or any one or more of its members". It is more consistent with the scheme of the 1996 Act that such processes would occur in the case of employees, through registered organisations of employees (or State Peak Councils).
58A slight infelicity of language is also evident in s 12(1), which states: "An award is binding on all employees and employers to which it relates, whether or not they were a party to the making of the award." The applicants contend that by the use of the word "they" the provision contemplates individual employees being parties to the making of an award. There is no other indication in the 1996 Act of a legislative intention to allow individual employees to become a party to the making of an award other than the word "they" in s 12(1). That provision, however, is directly at odds with s 11. The word "they" should be construed as referring to employers, who by s 11 may become a party to the making of an award, or who may choose not to.
59Section 11(4) refers to an applicant for an award and an applicant to become a party to the making of an award. Each is required to satisfy the Commission that "it or any one or more of its members has a sufficient interest in the proposed award." First, it is to be noted that a provision such as s 11(4) is obviously necessary in order that an industrial organisation or employer may seek to be made a party to the making of the award where it is able to demonstrate a sufficient interest. An industrial organisation of employees may seek the making of an award to apply to employers and employees in a particular industry. Other organisations of employees and employers or employer organisations in the industry may wish to be made parties to the proposed award in order that they may, from then on, participate and be heard in relation to matters affecting the award because they have a sufficient interest in the award.
60Secondly, s 11(4) refers to an applicant to become a party to the making of an award. There is no provision in the 1996 Act for an individual employee to be made a party to an award once made, which is what the applicants seek to do here. We note in passing that s 17(2) provides that s 11 applies to any application to vary or rescind an award. It would seem to follow that on any such application the persons who may become a party to the making of an award may also apply to become a party to a variation of an award.
61Thirdly, the provisions of Pt 2 of Ch 2 dealing with enterprise agreements, and in particular s 31 and s 36, stand in stark contrast to the language of s 11(4) or s 12. Sections 31 and 36 acknowledge, in explicit terms, that employees or groups of employees may be parties to enterprise agreements.
62The applicant sought to place reliance on Div 3 of Pt 6 of the Commission's Rules in contending that individual employees could be made parties to awards. Rule 6.8 and 6.9 provide:
6.8 Records of persons affected by awards
(1) The Registrar must maintain records in relation to each award of:
(a) the parties to the award, and
(b) the State peak councils in relation to the award, and
(c) any registered industrial organisations and other persons who satisfy the Registrar that they have a sufficient interest in applications affecting the award to justify their being served with process relating to the award.
(2) The Registrar may remove any of the persons or bodies in subrule (1) (c) if satisfied that the person or body has ceased to have a sufficient interest in applications affecting the relevant award.
(3) At least once every 3 years the Registrar must give notice to each person or body referred to in subrule (1) in relation to an award, and to the Commission, that the award is due to be reviewed under section 19 of the Act.
(4) Such notice may also be given whenever an application for a new award is filed.
6.9 Party cards
(1) In this rule:
party means a person or an organisation that has an interest in an award, or in the making of an application in respect of an award, or that has otherwise participated in the making or variation of an award.
party card means a register of parties, maintained by the Registrar, that have an interest in an award.
(2) The Registrar must maintain a system of party cards.
(3) Application for inclusion on the party cards may be made to the Registrar in the approved form.
(4) The Commission may direct that a party be added to or removed from a party card in respect of a particular award or awards.
(5) Parties to an award that are recorded on a party card must be served with any application concerning the award.
(6) A party may be removed from a party card by the Commission, provided that the party has been given at least one month's written notice (to be been [sic] sent to the party's last known address) of the proposal to do so.
(7) An application to remove a party from a party card in relation to an award may be made by any other party to the award.
63The applicants emphasised the reference to "persons" in the above Rules, noting that s 21 of the Interpretation Act 1987 provides that the word "person" includes an individual, a corporation and a body corporate or politic. However, the word "person" is to be construed according to its context and if the statutory provision indicates a contrary intention, an individual will not be regarded as a "person" for the purpose of the provision.
64Rules 6.8 and 6.9 must be construed in light of the relevant provisions of the 1996 Act. The Rules cannot enlarge the scope of who might be made parties to awards beyond what the 1996 Act provides. The reference to "persons" in r 6.8 is limited to a body corporate, that is, an employer as provided by s 11 and s 12 and does not include an individual. The same applies to the word "person" in r 6.9(1).
65As part of their contention that the 1996 Act constituted a significant shift from its antecedents, the applicants relied on s 209(2) of the 1996 Act to submit that:
[W]hen reading sections 11 and 12 together with section 209, it is clear parliament thought no employees should be forced to become a member of an industrial organisation, so the position would be that ... employees in this State, should they wish to become a party to an award or party to an award making process, would be forced to join an organisation, which thwarts a fundamental human right.
66In support of their contention regarding a fundamental human right, the applicants referred to Kruger . That case concerned the constitutional validity of the Aboriginals Ordinance 1918 (NT), which provided the legal basis for the removal of Indigenous children from families and communities in the Northern Territory. The plaintiffs were Aborigines from the Northern Territory, who had been removed from their parents and families when they were young children. The basis of the plaintiffs' challenge was that the removals infringed certain constitutional rights or freedoms. One of the claims was that the Ordinance was contrary to an implied constitutional right to and/or guarantee of freedom of movement and association.
67Toohey and Gaudron JJ recognised the existence of an implied freedom of movement and association in the Constitution. McHugh J also recognised the existence of an implied freedom of movement and association in the Constitution, which were necessary to guarantee the implied right of political communication in the Constitution. However, none of these Justices went on to hold that the Ordinance contravened the implied freedoms. Dawson and Gummow JJ rejected the notion of an implied freedom of movement and association. Brennan CJ did not need to decide the issue, but considered that even if there were an implied constitutional right to freedom of movement and association, such a constitutional requirement would not have invalidated the impugned provisions.
68We do not consider Kruger provides any support for the applicants' contentions in this case.
69The applicants referred to Article 20(2) in the United Nations Universal Declaration of Human Rights, which provides that " No one may be compelled to belong to an association." It was submitted that legislation should be construed in a manner consistent with the established rules of international law especially where there is an ambiguity, absent a contrary intention: see Jumbunna Coal Mine NL v Victorian Coal Miners Association [1908] HCA 95; (1908) 6 CLR 309 at 363; and Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 287.
70We do not consider that the absence of any right under the 1996 Act for an individual employee to be a party to the making of an award is inconsistent with the Human Rights Declaration. Section 209 provides that a person cannot be compelled to become, or remain, a member of an industrial organisation. The provision is primarily designed to deal with "closed shop" arrangements whereby employees were sometimes coerced to join the relevant union. It is not a provision that assists the applicants to contend that they must join a union to become a party to an award. Simply by joining a union will not make individual employees parties to a common rule award or an enterprise-based award. It is the union that is the party and a union member has no more rights to apply for, vary or rescind an award than a non-union member.
71However, if individual employees wish to have a voice in the making of an award an option - not a compulsion - is to join a union, which is entirely consistent with that object of the 1996 Act that encourages representative bodies of employees and s 209 has to be construed in that light.
72Further, as we understand the background to this matter the applicants, along with a significant number of their colleagues, resigned from HSU East or ceased being a financial member. In doing so, in the words of Cahill J in Cobar Mines "they effectively ruled themselves out of representation in the award-making procedures ..." It should be obvious that for the Commission to now recognise that body of employees by making them parties to the award would undermine, in a significant way, the indispensable role and standing under the 1996 Act of a registered organisation of employees with coverage of the applicants' work. As Fisher P said in Re Hospital Employees HREA Members (State) Award (1997) 75 IR 7 at 8-9:
It is not too much to say that the representative concept of the union and its administration is a foundational organisational concept within the legislation and is fundamental to the scheme of the Act.
73We also refer to the observation of the Full Bench in Re Club Employees (State) Award [2002] NSWIRComm 362; (2002) 122 IR 272 at [83] and [84] as follows:
[83] Moreover, whilst the Industrial Relations Act contains extensive provisions dealing with the rights of the individual (for example, Ch 2 Pt 6 - Unfair dismissals, Ch 2 Pt 9 - Unfair contracts, Ch 5 Pt 1 - Principles of association) it has a strong collective theme running through it. That is, embodied in the statute is a system of industrial relations that relies for its operation on collective representation through registered bodies of employers and employees. This is manifested in the fundamental processes for dealing with industrial disputes and the making of awards and enterprise agreements.
[84] Given the object of the Act expressed in s 3(d) and the importance, perhaps necessity, of representative bodies to the machinery of industrial relations in this State, an award provision enabling payroll deductions for the purpose of facilitating the payment of an employee's union membership fees could not be said to be inconsistent with either the Act's object or the policy framework in which it operates. Indeed, such a payroll deduction facility may be seen as a means of directly encouraging representative bodies of employees.
(See also Electrical Contractors Association of New South Wales v Electrical Trades Union of Australia, New South Wales Branch [2003] NSWIRComm 404; (2003) 130 IR 284 at [31].)
74The applicants also referred to Young, James and Webster v United Kin g dom and Lavigne v Ontario Public Service Employees Union , which were decisions of the European Court of Human Rights regarding Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Supreme Court of Canada in relation to s 2(d) of the Canadian Charter of Rights and Freedoms, respectively . Neither decision has any relevance to these proceedings and, in any event, as we have stated, we do not consider that the absence of any right under the 1996 Act for an individual employee to be a party to the making of an award is inconsistent with any charter of rights.
75The applicants' next contention was that, in the alternative, even if employees cannot be or become " parties " to proceedings, they could seek to intervene in those proceedings having regard to s 11(4), s 12 and s 209(2) of the 1996 Act and the decision in Laundry Employees. Once accepted as interveners, it was submitted the applicants would be regarded as parties: see Bradley at 396; United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520; O'Keeffe Nominees Pty Ltd v BP Australia Ltd (No 2) (1995) 128 ALR 718 at 722-723 ; and Cheesman v Waters & Attorney-General of the Commonwealth of Australia (1997) 77 FCR 221 .
76In Bradley's case it was held at 396 that:
A person accepted as an intervener becomes a party to the proceedings with all the privileges of a party. Thus he can appeal, tender evidence and participate fully in all aspects of the argument. His position is quite different from that of an amicus curiae. Interveners have been allowed to appeal. Thus the Attorney-General of the Commonwealth appealed to the Privy Council in Attorney-General of the Commonwealth of Australia v. The Queen (the Boilermakers' case), though he was only an intervener in R. v. Kirby; Ex parte Boilermakers' Society of Australia in the High Court. See also Attorney-General for Ontario v. Winner .
77Bradley was a case concerned with, inter alia , whether the appellant should have been given leave to appeal against the admission of the Commonwealth as an intervener in proceedings originally involving as parties the Corporate Affairs Commission and the respondent. Hutley JA, with respect, cited no direct authority for the proposition that a person accepted as an intervener becomes a party to the proceedings with all the privileges of a party. Indeed, what his Honour said would seem to be at odds with what Dixon J said in Australian Railways Union v Victorian Railways Commissioners [1930] HCA 54; (1930) 44 CLR 319 at 331:
I think we should be careful to allow arguments only in support of some right, authority or other legal title set up by the party intervening. Normally parties, and parties alone, appear in litigation. But, by a very special practice, the intervention of the States and the Commonwealth as persons interested has been permitted by the discretion of the Court in matters which arise under the Constitution. The discretion to permit appearances by counsel is a very wide one; but I think we would be wise to exercise it by allowing only those to be heard who wish to maintain some particular right, power or immunity in which they are concerned, and not merely to intervene to contend for what they consider to be a desirable state of the general law under the Constitution without regard to the diminution or enlargement of the powers which as States or as Commonwealth they may exercise.
See also R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ellis [1954] HCA 6; (1954) 90 CLR 55 at 68-69 per Kitto J.
78The references in Bradley to the Attorney-General (Cth) v R (the Boilermakers' Case) (1957) 95 CLR 529 and Attorney-General (Ontario) v Winner [1954] 3 All ER 177 only serve to make the point that the Attorney General may, as an intervener, appeal. The other cases relied upon by the applicants involved the construction of various statutes. For example, in United States Tobacco what fell to be considered was s 12 of the Administrative Decisions (Judicial Review) Act 1977 (Cth):
Application to be made a party to a proceeding
(1) A person interested in a decision, in conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision, or in a failure to make a decision, being a decision, conduct or failure in relation to which an application has been made to the Federal Court or the Federal Magistrates Court under this Act, may apply to the Court to be made a party to the application.
(2) The Court may, in its discretion-
(a) grant the application either unconditionally or subject to such conditions as it thinks fit; or
(b) refuse the application .
79We do not consider the cases relied upon by the applicants are authority for the proposition that in this jurisdiction a person accepted as an intervener becomes a party to the proceedings with all the privileges of a party.
80The jurisprudence in this Commission regarding intervention is usually regarded as stemming largely from a decision of McKeon J In re Special Constables (Police Department) Award [1956] AR (NSW) 880 (although there is an earlier authority to the same effect In re Plumbers and Gasfitters (State) Conciliation Committee [1936] AR (NSW) 341). What his Honour there determined has been adopted as the practice in this jurisdiction in relation to applications to intervene (subject to the provisions of s 167 of the 1996 Act).
81The following principles may be drawn from Plumbers and Gasfitters and Special Constables :
(a) whether a person is to be granted leave to intervene is a matter that lies within the discretion of the tribunal;
(b) the granting of leave to intervene does not confer upon the intervener the full right of a party;
(c) intervention in a proceeding for an award should be treated as a protective step to ensure that the interest that the intervener has in the case is fully appreciated and adequately protected and is not prejudiced or placed in jeopardy;
(d) the Commission retains the power to restrict or limit the intervener in such manner and to such extent as it may think fit. Duplication should be avoided;
(e) the Commission, when it permits intervention, should actually exercise at all times a careful and strict control over the extent to which an intervener may participate in the case and should set its face against allowing interveners to go beyond such point as the Commission is satisfied is necessary to protect their own particular interest.
82The applicants submitted that it was a "universal" rule of procedural fairness that a party with sufficient interest in proceedings was required to be given an opportunity to be heard: Cameron v Cole ; Dahozo ; and BP Australia Limited v Brown .
83Those cases concerned matters in quite different statutory contexts. For example, Cameron v Cole concerned a debtor who was the subject of a sequestration order which was made in his absence and about which he had no notice. Dahozo , in which Bryson J discussed the audi alteram partem rule, concerned the requirement to notify a person who had an apparent interest in an application to reinstate a company that had been dissolved.
84The present proceedings concern the question of whether an individual employee has a right to be made a party to the making of an award. It is a question to be determined according to the terms of the 1996 Act, not by common law notions such as the audi alteram partem rule. A literal application of the rule would mean that, as they would be bound by any award made by Staff J and, therefore, could most likely establish a sufficient interest, his Honour would have been bound to hear from some 3,000 ambulance officers in the making of the Award if such applications were made. Such a construction is at odds with the purpose and content of the 1996 Act.
85We referred earlier to Lynch where some consideration was given to the audi alteram partem rule. There it was determined under the 1940 Act "that the concept of a common rule excluded any strict application of the audi alteram partem rule" (at 217). There is no basis that has been put that would cause us to take a different view under the 1996 Act.
86We refer to the alternative submission by the applicants in their supplementary submissions that:
[I]t would be just in the circumstances for the Commission to exercise its discretion pursuant to s 17(3)(c) of the Act to vary that part of the New Award dealing with Extended Care Paramedics (i.e., clause 5(b)(iv) (which defines the new classification) and section 8 (which sets out the rates of pay) by either deleting them or amending them in a manner that is fair and reasonable within the meaning of s.11(1) of the Act.
87The applicants have no standing to seek such a variation as the only persons who may apply for such a variation are an employer, an industrial organisation of employer or employees or a State peak council (see ss 11(2) and 11(3) of the 1996 Act, as applied by s 17(2) of that Act) and the applicants are not such persons.
88We find that the 1996 Act precludes an individual employee from either becoming a party to the making of an award or from being joined as a party to an award under Pt 1 of Ch 2 of the 1996 Act. Without delving into the merits of the motion, we would observe that, in the ordinary course, a group of employees (whether members of a union party to proceedings or not) disaffected by an agreement reached between industrial parties, would not appropriately be granted, under these principles, a right to intervene to disturb a consent arrangement. The very nature of negotiations by parties to an award is that outcomes will differ between work classifications and groups, be influenced by cost considerations and compromises reached between parties. The Commission generally favours consent arrangements in the public interest, but will nonetheless interfere where an arrangement contravenes the wage fixing principles or a provision of the statute. No such circumstances were evident in this case.