Summary - application for certification of an agreement under s.170LJ of the Act - request for leave to intervene unders.43 (1) of the Act by the AMIEU on behalf of six employees whose employment may be subject to the agreement - consideration of authorities - rights of an organisation under s.43 (2)(a) and (b) - general discretion at s.43 (1) - consideration of request for leave by a registered organisation to appear under s.42 of the Act as an "agent" - consideration of authorities - language of verb form in s.42(2) "may not" - various objections that agreement provisions offended against Part XA of the Act.

[1] This is an application to certify an agreement pursuant to section 170LJ in Division 2 of Part VIB of the Workplace Relations Act 1996 (Cth) (the Act) by Woolworths Limited (the Applicant). The agreement is known as the Woolworths Queensland Supermarket Certified Agreement 2004.

[2] The Commission has examined the statutory declarations of Ms. Susan George, Human Resources Manager of the Applicant and Mr. Ian Blandthorn, Union Official of the (SDA). The Commission has had the benefit of hearing submissions from Mr. Carr and Ms. George of Woolworths Limited, and Mr. Gillespie of the Shop, Distributive and Allied Employees Association (SDA). For reasons given below, the Commission has also heard submissions from the Australasian Meat Industry Employees Union (AMIEU), which appeared as an agent for six employees who were granted leave to intervene in this application.

[3] The Commission determined the issues immediately below on transcript at the time of the hearing, but as the matters were contested and various authorities were led at the time, the Commission undertook to provide the parties with full and complete reasons for its decision in these regards. This decision is the fulfilment of that undertaking to the parties.

[4] The initial contested issue arose as appearances were taken in respect of this application. At that time, Mr. Stroppiana, Industrial Officer for the AMIEU, sought leave to intervene in proceedings pursuant to s.43 (1) of the Act. The specific terms on which Mr. Stroppiana sought leave were put as follows:

"I'm seeking leave to appear on behalf of six members of the union who will be subject to this agreement."[1]

[5] Mr. Stroppiana provided to the Commission six signed authorisations by members of the AMIEU who are employees of Woolworths in the State of Queensland and whose employment was to be subject to the agreement that was before the Commission for purposes of certification. Mr. Carr, for Woolworths, confirmed that the six employees were current employees.[2]

[6] Each of the written authorisations stated that:

"I [...] an (sic) employee of Woolworths Limited [...] hereby authorize the Australasian Meat Industry Employees Union (QLD Brach) to appear on my behalf in relation to the proposed certification of the Woolworths Queensland Supermarkets Certified Agreement 2004 being an agreement which will effect the terms and conditions of my employment."

[7] Though to begin with the matter was not entirely clear on the submission before it, in the Commission's view, the AMIEU was seeking leave, pursuant to s.43 (1) of the Act, to appear as an agent for six employees of Woolworth's who considered their terms and conditions of employment affected by the agreement for which application for certification had been made. That is, the AMIEU was not seeking leave to intervene in its conventional representative role as a registered organisation as defined at s.4 of the Act, but was seeking to appear on behalf of six employees who sought to intervene pursuant to s.43 (1) of the Act.

THE COMMISSIONER: All right. Well, can I first I ask you under which provision of section 43 are you seeking leave to intervene?

MR STROPPIANA: On behalf of persons. Part 2 of that provision deals with the rights of organisations. This situation is somewhat different in that we're seeking to intervene on behalf of six individual persons. Our submission is that you've got a general discretion under 43(1) to grant this organisation leave to appear on behalf of those six individuals of whom you have their written authorities.

THE COMMISSIONER: You've also already told me that you're seeking leave to intervene as the AMIEU.

MR STROPPIANA: On behalf of the six individuals, in accordance with the written authorities which we have handed up. And my submission is that section 43(1) provides this Commission with sufficient jurisdiction or sufficient discretion to grant the AMIEU leave to appear on behalf of those six individuals in these circumstances.[3] (Emphasis added)

[8] It should also be noted that Mr. Stroppiana also made generalised reference to the principles of natural justice, presumably so far as they may apply to the exercise of discretion at s.43(1) of the Act.[4]

[9] At the outset, it should be noted that there are two matters that need to be resolved, though Mr Stroppiana's submissions may not have had close regard at all times to their segmentation. The first is whether the Commission should grant leave to intervene, pursuant to s.43(1) of the Act, in the terms as sought, and consequently, should the Commission provide for leave to appear pursuant to s.42(2) or (3) of the Act?

[10] Mr. Carr for Woolworths and Mr. Gillespie for the SDA both opposed leave as sought.

[11] For purposes of determining whether intervention should be approved, Section 43 of the Act reads as follows:

_(1) Where the Commission is of the opinion that an organisation, a person (including the Minister) or a body should be heard in a matter before the Commission, the Commission may grant leave to the organisation, person or body to intervene in the matter.

(2) If the matter before the Commission is an application under Division 2 or 3 of Part VIB for certification of an agreement, the Commission:_

(a) must, on application, grant leave to intervene in the matter to any organisation of employees that was requested to represent a person as mentioned in subsection 170LK(4) in relation to the agreement, provided the request was not withdrawn; and

(b) except as mentioned in paragraph (a), must not grant leave to intervene in the matter to an organisation of employees other than one that is proposed to be bound by the agreement

[12] Mr. Carr, for his part, submitted that the Act did not support a right of intervention, and cited a number of authorities in this regard, namely, a decision by His Honour, Senior Deputy President Williams in Quality Bakers Australia Limited (Victorian Division) Enterprise Agreement 1999[5] ("Quality Bakers") and the decision of the Full Bench in CSL Enterprise Agreement 1999 ("CSL").[6]

[13] The Commission was taken to the conclusion in Quality Bakers that stated:

**"**I am prepared to assume, for the purposes of this decision, that the true nature of the application is not for leave to intervene to be granted to the TWU on behalf of the employees but for leave to intervene to be granted to the employees themselves and for leave to be granted to an official of the TWU to then represent such employees. However, it is clear from the submissions made on behalf of the relevant employees that the sole purpose in seeking leave to intervene is to achieve the object of having the TWU made a party to the Agreement. They do not seek any changes to the Agreement other than those necessary to achieve that object. I am not satisfied that, in those circumstances, they are persons whose interests are directly affected by the substantive application before me. I am not satisfied, therefore, that the employees are persons who should be heard in the substantive matter and leave to those employees to intervene is refused."[7]

[14] In the matter before the Commission, the AMIEU was not seeking leave to intervene for purposes of s.43(2)(b) of the Act. So much was made clear to the Commission in the following exchange:

"THE COMMISSIONER: [...] [J]ust for the reason of clarity - you're not seeking to intervene under any basis under section 43(2)?

"THE COMMISSIONER: So you're not seeking to be bound by the agreement?

MR STROPPIANA: That's correct. [...]."[9]

[16] The Commission was only taken generally to the decision in CSL.[10]

[17] This Full Bench decision is authority for the scope for leave by an organisation registered under the Act, in relation to s.43(2)(b).[11] In the matter before the Commission, the request for leave by the AMIEU, in its role as agent for the six employees whose employment was to be subject to the agreement, was sought in relation to s.43(1) of the Act.

[18] Before determining the request for leave, the Commission sought from the AMIEU the range of issues, in summary, it sought to enliven for purposes of the certification process. These issues all concerned possible contravention of Part XA of the Act in relation to each of the following clauses in the agreement:

• Clause 11.1 Union Recognition
• Clause 11.1.4 Union Membership Dues; and
• Clause 11.2.1 Union Meetings

[19] In respect of each of these clauses as they were under the Agreement, the AMIEU contended that for one reason or another the six employees for whom it acted as agent were concerned that they were injured in their employment as a consequence of their membership of the AMIEU as opposed to the SDA. The alleged primary reason for this was that the agreement afforded terms and conditions to members of the SDA that were not otherwise available to employees who were members of other unions.

[20] It was also submitted that the Agreement offended Part XA of the Act, for reason it provide for exclusive representation of the industrial interests of employees by a single registered organisation.

[21] The Commission has also had regard to its involvement in prior, related proceedings to this application for certification of an agreement.

[22] The legislative history in relation to s.43 has been summarised thus in various decisions of the Commission:

**"**Item 5 of Schedule 8 of the Workplace Relations and Other Legislation Amendment Act 1996 introduced subsection 43(2)(b). The original Bill as amended and passed by the House of Representatives was in different terms. The Explanatory Memorandum issued to take account of amendments made by the House of Representatives summarised the overall changes made by what was then Schedule 9 of the then Bill, and included the following summary:

`limiting the circumstances in which persons may intervene in the certification process where they are not proposed to be bound by the agreement'.

**"**It also included an explanation of the change in Item 5 of Schedule 9 in the following terms:

`Section 43 of the IR Act currently provides that the Commission may grant leave to intervene in a matter to an organisation, a person or a body to intervene where it is of the opinion that that organisation, person or body should be heard in relation to the matter. This item proposes to amend section 43 to prevent the Commission from granting leave to intervene to an organisation of employees which has not made the agreement (the applicant for certification may be the employer).'

The Senate considered the Bill, and amended the proposed amendments to s.43 to expand the ability of organisations to intervene in certification matters to a limited extent. Amendment number 69 was an amendment to Item 5 of the then Schedule 9, and was explained in the Supplementary Explanatory Memorandum to the joint Government and Australian Democrat amendments in the following terms:

`Section 43 currently grants the Commission a wide discretion as to when, and to whom, it may grant leave to intervene.'

The Bill as introduced would limit the right of unions to intervene in an application for certification of an agreement to cases where unions have made an agreement with an employer. This right is to be retained.

This amendment proposes to extend a right of intervention to unions who propose to be bound by an agreement between an employer and employees and to unions who were authorised by employees to meet and confer with their employer during negotiations for an agreement directly between the employer and his or her employees. (Proposed section 170LK governs the manner in which unions may be authorised).

The Commission will be required to grant leave to intervene to any union which was authorised by a member to represent them in negotiations with his or her employer, provided that authority was not subsequently withdrawn.'

`Schedule 9, item 5, page 69 (lines 19 to 23), omit subsection (2), substitute:

(2) if the matter before the Commission is an application under Division 2 or 3 of Part VIB for certification of an agreement, the Commission:

(a) must, on application, grant leave to intervene in the matter to any organisation of employees that was requested to represent a person as mentioned in sub section 170LK(4) in relation to the agreement, provided the request was not withdrawn; and

(b) except as mentioned in paragraph (a), must not grant leave to intervene in the matter to an organisation of employees other than one that is proposed to be bound by the agreement.' "[12]

[23] Section 43(2)(b) of the Act is expressed in broad terms and refers to "an organisation of employees other than one that is proposed to be bound by the agreement."

[24] Such an organisation, pursuant to s.4 of the Act, may be an organisation bound for purposes of s.170M(2) of the Act.

[25] Section 170M of the Act relevantly provides as follows-

(1) If the application for certification states that the application is made under Division 2, the certified agreement binds:

(b) all persons whose employment is, at any time when the agreement is in operation, subject to the agreement.

(2) If, in accordance with section 170LJ or 170LL, one or more organisations of employees made the agreement with the employer, the agreement also binds the one or more organisations." (Emphasis added)

[26] Equally so, the Full Federal Court has taken the view[13] that the meaning in s.43(2)(b) of the Act of "one that is proposed to be bound by the agreement", at least, seemingly in regards to an agreement made pursuant to s.170LJ of the Act, is:

"a reference to an organisation proposed in the application for certification. Thus, one looks to the terms of the application to determine who is proposed to be bound by the agreement. If the application does not propose that an organisation be bound by the agreement, then such organisation is not entitled to be granted leave to intervene in the matter of the application for certification of the agreement." [14]

[27] Whilst it may appear unnecessary, a registered organisation for purposes of s.4 of the Act may seek leave to intervene, pursuant to s.43(2)(b) of the Act in relation to an application for certification of an agreement made pursuant to s.170LJ of the Act, but only so far as, by virtue of being so cited in the application, it is a party principal to the agreement and has "made" and is bound by that agreement.

[28] The Commission recognises that there are other views in this regard. In Re: Monash University and Construction, Forestry, Mining and Energy Union and Another[15], Deputy President Ives provided for the intervention and appearance of the National Tertiary Education Union (NTEU) in circumstances in which that union had not been a party principal to the agreement that was before him for purposes of certification. [16]

[29] That decision was later subject to appeal,[17] and the issue of the foundation for intervention was not subject to any contrary ruling, although, in the terms of the decision as published, it also appears not to be have been raised as the subject of consideration by the Full Bench.

[30] Notwithstanding this, the view advanced above by the Commission as presently constituted is buttressed by way of the guidance provided by the Full Bench in CSL[18], (which was the subject to the appeal proceedings before the Full Court referred to above) in which the Professional Officers Association (Victoria) (POAV) sought to intervene pursuant to s.43(2)(b) of the Act in an agreement made under s.170LJ of the Act for which application had been made for certification:

**"**The POAV seeks to bring itself within the terms of s.43(2)(b) by pointing to the terms of s.170LU(4) which permit the Commission to vary provisions of an agreement so that it does not require or permit conduct in contravention of Part XA. In this case the Commission would be required to amend the agreement by making the POAV a party. Accordingly, it was argued, the POAV is an organisation " that is proposed to be bound by the agreement ". In this connection Mr Borenstein asked us to regard it as significant that the employees who sought leave to intervene before the Commissioner also proposed that the POAV should be bound by the agreement. It was also submitted that the terms of s.170LU(2A) and (3) cannot be given their full effect if the parties to the agreement are able to engage in conduct at which those sections are directed secure in the knowledge that interveners will not be heard to expose them. For those reasons the Commissioner's conclusion that s.43(2)(b) refers to an organisation that made the agreement is wrong.

We reject the POAV's contention. Section 43(2)(b) does not bear the construction relied upon. Commissioner Holmes' conclusion is correct. The section is intended to fetter the Commission's discretion by disentitling all registered organisations (other than those mentioned in s.43(2)(a)) to the right to seek leave to intervene other than those whom the agreement proposes should be bound by it. [...]." [Emphasis added][19]

[31] The submission by the POAV that it was a registered organisation that was proposing to be bound by the agreement (an outcome that was reliant upon the approval of a variation to the agreement by the Commission) was not accepted. A registered organisation that proposes to be bound by an agreement, seemingly, can therefore only be an organisation that is a party principal to an agreement it has "made" itself in the terms of s.170M(2) of the Act, and is so cited in "the terms of the application" or "whom the agreement proposes should be bound by it." Other than this scenario, for purposes of s.43(2)(b) of the Act, an organisation must be an organisation for purposes of s.170M(3) of the Act, which relates only to agreements made pursuant to s.170LK of the Act. Section 43(2)(a) also provides for a right of intervention for a registered organisation, but again, this is limited to circumstances in which the organisation "was requested to represent a person as mentioned in subsection 170LK(4) in relation to the agreement [...]".

[32] That said, the AMIEU did not seek leave (on behalf of six employees) to intervene pursuant to s.43(2) of the Act. In such circumstances, can the AMIEU's application be considered pursuant to the general discretion pursuant to s.43(1) of the Act, or does s.42 cover the field in respect of the grounds on which intervention may be approved in respect of applications under Division 2 or 3 of Part VIB for certification of an agreement?

[33] A Full Bench heard an appeal against a decision by Tolley C to allow an official of a registered organisation (the Australian Liquor, Hospitality and Miscellaneous Workers Union) to intervene as an agent on behalf of certain employees, in certification proceedings for an agreement made pursuant to s.170LJ of the Act. That agreement had been made between Coles Supermarkets Australia Pty Ltd and the SDA. The Union seeking to intervene as an agent (and not on its own behalf), and which was granted intervention, did not seek to intervene in the certification proceedings pursuant to either s.43(2)(a) or s.43(2)(b) of the Act. It presumably sought leave to intervene under s.43(1) of the Act. The Full Bench upheld the Commissioner's decision at first instance:

"On appeal the appellant submitted that the evidence adduced by the ALHMWU should be disregarded "as Commissioner Tolley was in error in granting the ALHMWU leave to intervene in the proceedings - s.43(2)."

"We do not think that there is any substance in this point. We acknowledge that in certification proceedings s.43(2) of the Workplace Relations Act 1996 (Cth) (the WR Act ) operates to constrain the Commission's power to grant leave to intervene to organisations of employees other than organisations which propose to be bound by the agreement. The ALHMWU is not an organisation that is proposed to be bound by the Bakery Agreement ; nor is it suggested that it would be entitled to intervene in the proceedings pursuant to s.43(2)(a).

"In his decision the Commissioner said that the ALHMWU had sought leave to intervene and leave was granted. If that accurately reflected what took place, then the Commissioner's decision would have been contrary to s.43(2). But that is not what happened. It is clear from the transcript of the proceedings below that the ALHMWU did not seek leave to intervene. Mr Tullgren, an officer of the ALHMWU, sought leave to intervene on behalf of certain employees. It is apparent that Mr Tullgren was acting as an agent for the relevant employees and not as a representative of the ALHMWU.

"Mr Tullgren's application for leave to intervene was granted. The Commissioner's decision in that regard does not disclose any error warranting correction on appeal. The decision subject to appeal simply misdescribes the action taken by the Commissioner during the course of the proceedings." [20]

[34] No ratio was disclosed by the Full Bench in regard to its finding.

[35] His Honour, Senior Deputy President Hamilton, also drew on the same Full Bench decision in permitting intervention, in respect of an application for the certification of an agreement made pursuant to s.170LJ of the Act, in the following related circumstances:

"Mr. Mark Irving sought leave of the Australian Industrial Relations Commission ("the Commission") to intervene in the hearing on behalf of two named employees of Boral to be effected by the agreement, Messrs Zombi Royale and John Panagiotopoulos. It is worth noting that Mr. Panagiotopoulos is a CFMEU delegate."

"Mr. Irving also said that he acted for the Construction, Forestry, Mining and Energy Union (CFMEU), but did not seek to intervene in the proceedings on its behalf, and s.43(2)(b) accordingly had no application. He applied for leave to intervene under s. 43(1) of the Act. After some argument on the issue, "I granted Mr. Irving leave to intervene on behalf of the two Boral employees [...]."[21]

[36] In the first instance cited above, it would appear that the Full Bench granted leave to intervene, pursuant to s.43(1) to an officer of a registered organisation who was acting as an agent for the relevant employees. Presumably, that same person was taken to be agent for purposes of s.42(3) of the Act.

[37] In the second instance, it appears that Hamilton DP granted leave to intervene to a person who acted for a registered organisation, and who was intervening on behalf of behalf of two employees. Again, presumably, this person was also taken to be an agent for purposes of s.42(3)(c) of the Act, though here, unlike the Full Bench, there is no reference to the individual concerned being an `agent', though this may be inferred.

[38] In both the cases cited above, the persons who were granted leave to intervene were the persons who were representing and appearing for various employees whose employment was to be the subject of the agreement, in each instance, before the Commission for certification. They were not themselves persons to be subject to the agreement. In neither of the cases as cited is there any reasoning as to how such representatives were persons (assuming they were persons and not representatives of bodies) that "should be heard in a matter before the Commission" for purposes of s.43(1) of the Act.

[39] In the Full Bench decision in Formula One Catering Services Pty Ltd t/as Quality Cuisine Catering[22] ("Formula One"), the Bench had before it the following situation:

**"**While we have examined the Parliamentary materials in response to the appellant's submissions, in our view the construction of s.43(2) is not open to serious doubt. It is sufficient to indicate that applying the ordinary meaning of the words s.43(2) should be construed as regulating only the intervention rights of organisations registered under the Act with the consequence that all other applications for intervention are determined under s.43(1). The contrast between the language in ss.(1) and (2) of s.43 is telling. Section 43(1) uses the words " an organisation, a person (including the Minister) or a body ". Section 43(2) uses only the expression " organisation ". It must be assumed that the omission of the words " a person... or a body " was deliberate and was intended to cut down the broad discretion conferred on the Commission by s.43(1) but only in as much as that discretion exists in relation to registered organisations. As is apparent, in our view an examination of the Parliamentary materials does not cast doubt on that construction. To the contrary it reinforces it. It follows that to uphold the appellant's submission would be a misapplication of the purposive approach to statutory construction."[23]

[40] Section 43(2) of the Act fetters the Commission's discretion at s.43(1) to a defined degree. It does so to the extent only that an organisation registered under s.4 of the Act has no capacity to seek leave in respect of an application for certification of an agreement made pursuant to Division 2 or 3 of Part VIB the Act, bar in the circumstances contemplated in s.43(2)(a) and (b) of the Act.

[41] Consequently, s.43(2) therefore only writes down the general discretion available under s.43(1) to the extent that it is able to apply to registered organisations. The Commission nonetheless has a residual discretion intact (by way of s.43(1) of the Act) in relation to persons and bodies other than "organisations":

(1) Where the Commission is of the opinion that an organisation, a person (including the Minister) or a body should be heard in a matter before the Commission, the Commission may grant leave to the organisation, person or body to intervene in the matter. In the circumstances before the Commission, an agent for six employees - who are persons for purposes of s.43(1) of the Act - has sought leave to intervene on their behalf.

[42] In this context, it is therefore a matter of discretion, pursuant to s.43(1) of the Act, whether, in this case, "a person" or "a body" should be granted leave to intervene for purposes of being "heard" in the application for certification that was before the Commission.

[43] The AMIEU is a body that is not seeking to intervene in its own right as a registered organisation as defined at s.4 of the Act. It is a body that is seeking leave to intervene as the agent acting on behalf of six employees whose employment will be subject to the agreement, and who had a number of discrete concerns as the effect of the operation of the agreement on their rights under the freedom of association provisions in Part XA of the Act.

[44] Notwithstanding the authorities discussed above, s.43(1) appears to focus on the person, body or organisation that should be heard in the matter before the Commission. The discretion exercisable by the Commission must be based upon whether the prospective intervenor has sufficient, demonstrated interest in the particular matter. That is, those who appear for persons seeking leave to intervene cannot themselves be granted leave to intervene, as they do not in their own right have a sufficient demonstrated interest that warrants them being "heard". Their status, consequently, is properly determined at s.42, not s.43 of the Act.

[45] In this matter, the Commission granted leave to intervene to the six employees, whose agent for such purposes is the AMIEU.

[46] The Commission has not granted leave to intervene to the AMIEU itself, as an organisation for reasons that the registered organisation was not capable of meeting the requirements of s.43(2)(b) of the Act, as discussed above. Nor has the Commission granted leave to intervene for the AMIEU as agent, or Mr Stroppiana as a person. In neither of these latter instances can the agent or the person in question themselves, by definition, demonstrate (for purposes of the exercise of the Commission's discretion at s.43(1) of the Act) the necessary interest in the application before the Commission to warrant being heard. The only persons with the necessary interest are the six employees.

[47] That said, can the AMIEU appear for the six employees granted leave to intervene pursuant to s.43(1) of the Act, for purposes of s.42(3) of the Act?

_(1) A party to a proceeding before the Commission may appear in person.

(2) Subject to this and any other Act, a party to a proceeding before the Commission may be represented only as provided by this section.

(3) A party (including an employing authority) may be represented by counsel, solicitor or agent:_

(a) by leave of the Commission and with the consent of all parties;

(b) by leave of the Commission, granted on application made by a party, if the Commission is satisfied that, having regard to the subject-matter of the proceeding, there are special circumstances that make it desirable that the parties may be so represented; or

(c) by leave of the Commission, granted on application made by the party, if the Commission is satisfied that the party can only adequately be represented by counsel, solicitor or agent.

(4) A party that is an organisation may be represented by:

(a) a member, officer or employee of the organisation; or

b) an officer or employee of a peak council to which the organisation is affiliated.

_(5) An employing authority may be represented by a prescribed person.

(6) Regulations made for the purposes of subsection (5) may prescribe different classes of persons in relation to different classes of proceedings.

(7) A party other than an organisation or employing authority may be represented by:_

(b) a member, officer or employee of an organisation of which the party is a member;

(c) an officer or employee of a peak council to which the party is affiliated; or

(d) an officer or employee of a peak council to which an organisation or association of which the party is a member is affiliated.

(10) In this section (other than paragraph (3)(a)):

[49] The particular facts of the application for leave before the Full Bench in Formula One[24] were as follows:

"The appellant conducts a catering business and provides catering and other services at a number of locations including the premises of the Broken Hill Musicians Club. Persons employed by the appellant in Broken Hill are covered by an award of the Industrial Relations Commission of New South Wales (the New South Wales Commission) known as the Broken Hill Commerce and Industry Consent Award 2001 (the state award). On 9 January 2003 the appellant filed an application for certification of an agreement made pursuant to s.170LK of the Act with its Broken Hill employees.[1] The application was listed for hearing before the Deputy President on 7 February 2003. On that day the BHTEU sought leave to intervene. The BHTEU appeared through an agent, the Shop, Distributive and Allied Employees Association, South Australian Branch (the SDA). The appellant opposed the application for leave to intervene."[25] (Emphasis added)

[50] The Full Bench upheld the right of the Broken Hill Town Employees Union ("BHTEU"), which was not a registered organisation, to intervene (subject to the Commission's discretion), pursuant to s.43(1) of the Act. Consequently, the BHTEU is capable of being "a body" for purposes of the section.

[51] Having been granted leave to intervene, the BHTEU subsequently assigned its appearance role to a registered organisation under the Act, the SDA (South Australian Branch). The Full Bench made no comment on the appearance of the SDA as an "agent" for the BHTEU in its decision. There was no explicit consideration of the discretion to which the granting of leave in such a context is subject, nor any express consideration of the application of s.42(3)(c) and s.42(4) of the Act in the circumstances. It is noted, however, that the Full Bench was expressly aware of the SDA's status as an "agent" of the BHTEU.

[52] This Full Bench authority aside, there are other decisions of the Commission that suggest that s.42(3)(c) of the Act is restricted to natural persons only, as they alone are physically capable of conducting an appearance. In Re: Clive Peeters Certified Agreement 2004[26] which concerned an application for certification of an agreement pursuant to s.170LJ of the Act, His Honour, Senior Deputy President Watson, refused to grant leave to appear to the SDA pursuant to s.42(3)(c) of the Act, for reason that an organisation could not itself effect an appearance before the Commission:

"The Shop, Distributive and Allied Employees Association (SDA) initially sought to appear, with authority, for a member proposed to be a party to the agreement. That application was withdrawn when it emerged that the person was no longer employed by the company. The SDA subsequently sought to appear for another employee, proposed to be a party to the agreement, who was not a member. That application to appear as agent was declined on the reasons applied by Larkin C in Austar Entertainment Pty Ltd Award 1997." [27]

[53] In Austar Entertainment Pty Ltd Award 1997[28], Larkin C, for purposes of an award simplification hearing, refused to grant leave for the Australian Municipal, Administrative, Clerical and Services Union (ASU) (which was not a party to the relevant award) to appear on behalf of the Media, Entertainment and Arts Alliance (MEAA) (which was a party to the relevant award):

"I agree with Mr. Hatcher's submission. Subsection 42(3) envisages the appearance of a natural person as counsel, solicitor or agent and not an organisation. An organisation, as Mr. Hatcher suggested, has no physical presence. An organisation cannot physically walk and/or talk and therefore cannot represent before the Commission. An organisation is not capable of appearing and presenting submissions and material for the consideration of the Commission."[29]

[54] The Commission as presently constituted prefers the outcome of the Full Bench in Formula One. [30]

[55] Leave to appear under s.42 of the Act is able to be granted only as a consequence of the Commission having initially granted a right for a party to intervene in a matter and to be "heard". Section 42 is the means by which the Commission facilitates the hearing of a party. While as a matter of practicality an appearance will be conducted by a natural person, there is no reason to conclude that a registered organisation that is not seeking to appear as a party in its own right cannot appear pursuant to s.42(3)(c) as an "agent", in the manner in which the Full Bench in Formula One[31] provided.

[56] Even if this were not to be the case, it would seem a somewhat idle exercise to require that the employee or official of an organisation that acting as agent be required to recharacterise the request to appear so that they appeared as an agent as an individual.

[57] Indeed, there are circumstances in other proceedings before the Commission (such as urgent s.127 applications) in which various organisations assign appearance responsibilities to other organisations in a manner that is not in conformity with either s.42(4) and s.42(7) of the Act.

[58] In support of the above views, the Commission also observes that s.42(2) of the Act reads as follows:

"[Prescription] Subject to this and any other Act, a party to a proceeding before the Commission may be represented only as provided by this section." (Emphasis added)

[59] Notwithstanding s.42(2) of the Act incorporating the adverb "only", the subsection states that a party to a proceeding "may be" represented (only) in terms provided for in the section. The Parliament did not mandate representation to the extent as it might have if the language of the subsection had incorporated the verb form "must be" (instead of "may be").

[60] Consequently, in the matter that was before the Commission, Mr Stroppiana, for the AMIEU, was granted leave to appear as an agent (pursuant to s.42(3)(c)) on behalf of the six employees who were granted leave to intervene pursuant to s.43(1) of the Act.

[61] Having disposed of the intervention and appearance issues, the Commission then proceeded to hear the various concerns expressed by the six employees. These concerns, which essentially are based on a general submission that the agreement contains objectionable provisions pursuant to clause 170LU(2A) of the Act, are dealt with as follows:

• Clause 11.1 Union Recognition
• Clause 11.1.4 Union Membership Dues; and
• Clause 11.2.1 Union Meetings

[62] It was submitted that Clause 11.1 Union Recognition the Agreement fell foul of a decision of former Vice President McIntyre[32] in which various clauses in a number of certified agreements were found to be objectionable provisions pursuant to s.298Z(3),(4) and (5) of the Act for reason they offended against s.298K(1)(b) and s.298L(1)(b) of the Act. The reason for this was that a number of the agreements before the Vice President were found to exhibit exclusive representation clauses.[33]

[63] Clause 11.1.1 of the agreement before the Commission reads:

11 AGREEMENT COMPLIANCE AND UNION RELATED MATTERS

For the duration of this agreement, the Company recognises the Shop, Distributive and Allied Employees Association as being a union that shall have representation of all employees in classifications covered by this agreement.

"Commissioner, the nub of the argument is simply that a certified agreement cannot have contained within it a provision which grants to a union the right to exclusively represent employees, and represent the industrial interests of employees."[34]

[65] In respect of this submission, the Commission notes that clause 11.1.1 does not refer to the SDA directly as the union in which exclusive representational rights have been vested under the agreement. The clause makes reference to "a union", though there may be little substantial difference in intended outcome on the words themselves.

[66] In this regard, Mr. Gillespie for the SDA observed that:

"It is not intended to say that the SDA has the exclusive representation of each and every employee. It provides the SDA with the capacity to cover all employees in all classification of the agreement."[35]

[67] That said, the Commission took Mr. Stroppiana to the Grievance Procedures at clause 8.1 of the agreement. The clause reads:

This clause will have effect in the event of any dispute arising between the Company and its employees in relation to this Agreement or as to the performance of any work for which rates of wages are prescribed in this Agreement. Regardless of the dispute, work shall continue, and the following procedure shall be observed for handling any grievance or settling any dispute.

In the first instance, the employee will discuss the nature of the grievance or dispute with the immediate Department Manager. This is intended to mean whoever is in charge of the department on that day. Nothing contained in this clause precludes an employee from obtaining advice from a Shop Steward or Union Official prior to raising the matter with Management.

If the matter is not resolved, the employee may brief the Shop Steward or independent person on the substance of the dispute and then take the issue up with the Store Manager within 48 hours of discussing the matter with the Department Manager (weekends and public holidays excepted).

If the matter has still not been resolved, then the employee may take the grievance or dispute up with an Accredited Union Official. The Accredited Union Official may then discuss the grievance with the Store Manager.

If the matter is still unresolved, the Accredited Union Official may discuss the matter with the Company's Nominated HR Representative or Regional HR Manager.

In the event that the matter is still unresolved, the parties would seek the assistance of the Industrial Relations Commission, with the view to having the matter conciliated or if necessary arbitrated. Whilst the procedures outlined in 8.1.1 - 8.1.5 are being following, normal work must continue.

Without prejudice to either party, except where a bonafide safety issue is involved, work shall continue in accordance with the Award and this Agreement, while matters in dispute are being negotiated in good faith. Where a bonafide safety issue is involved, an attempt should be made to notify the appropriate safety authority."

[68] Mr. Carr for Woolworths explained the practical operation of the clause in the following terms:

"THE COMMISSIONER: Well that has come to the nub of it then. If I can ask you this question then. If there is an employee who is in dispute with the company and that employee is one of the - in the meat processing area and he's a member - he or she is a member of the AMIEU, and that employee seeks to have the AMIEU represent them for the purposes of the progress through the dispute resolution clause to its finality, are they capable of having the AMIEU represent them for the purposes of that progress through the dispute resolution clause?

MR CARR: That's been the practice, Commissioner, yes.

THE COMMISSIONER: That's been the practice and - sorry, that's an historical statement?

THE COMMISSIONER: This is about a prospective agreement, so.

MR CARR: Yes, that would continue, yes."[36]

[69] Mr. Carr also stated that employees who are not members of unions are also able to access the grievance procedure and utilise representatives of their choice for purposes of progression through that procedure.

[70] It was further put to the Commission that an Accredited Union Official was a person who is a holder of a permit under s.285A of the Act, and not a member only of the SDA.

[71] Mr. Stroppiana further contended that clause 1.2.3 of the Agreement also gave evidence of the exclusivity of the role of the SDA in the agreement.

"The Union - This agreement shall be binding upon Shop, Distributive & Allied Employees Association."

[73] This clause does no more work than is envisaged at s.170LJ(1) of the Act, and is not suggestive of an exclusive representational role as claimed.

[74] On the basis of these submissions as to the operation of the agreement, which, along with other commentary, will remain on transcript, the Commission is not satisfied that the claim by Mr. Stroppiana is made out. That is clause 11.1.1 of the agreement does not give cause for the Commission to take any actions in relation to s.170LU(2A) of the Act.

The Company undertakes upon authorisation to deduct union membership dues, as levied by the Branch of the Union in accordance with its rules, from the pay of employees who are members of the Shop, Distributive and Allied Employees' Association. Such monies collected will be forwarded to the Union at the beginning of each month together with all necessary information to enable the reconciliation and crediting of subscription to members' accounts"

[76] In respect of this clause, Mr. Stroppiana submitted that:

"[T]he effect of this clause is that clause provides an undertaking by the employer to provide a union deduction fee service for employees who are members of the SDA, and that such monies will be collected and on forwarded to the union and reconciled with members. Commissioner, the submission is that that clause is treating employees who are members of the SDA in a more favourable or different light or different manner than the manner in which this employer would be treating employees who may be members of other unions, and we've already heard submissions today that it's not simply the SDA and the AMIEU that have membership at Woolworths sites. There are assorted other unions.

Commissioner, the relevant sections which we say are breached here are section 298K(1)(e), which prohibits an employer for a prohibited reason, or for a reason including a prohibited reason, to do any of the following, and (e) is "discriminate against another employee in the terms and conditions on which the employer offers to employ the other person". Now, one of the prohibited reasons is contained at section 298L(1)(a) - provides as follows:

...is, has been, proposes to become, or has at any time, proposes to become an officer, delegate, or member of an industrial association."[37]

[77] In response to this claim, the following exchange took place between the Commission and Mr. Carr, for Woolworths:

"MR CARR: Yes. We do not read that as any exclusivity for only taking deductions for SDA members. And in fact, in practice, as I've indicated, we take payroll deductions upon appropriate authorisations for AMIEU members and others.

THE COMMISSIONER: So just coming to Mr Stroppiana's point; Mr Stroppiana's point is that - or should I say: is the submission that has been put to me by yourself and Mr Gillespie is that any union may be able to access clause 11.1.4 of this agreement?

MR CARR: That's the practice and that's how it occurs. I mean, I would be in a position to give an undertaking with respect to the AMIEU for the nominal life of this agreement about that."[38]

[78] This was an unsolicited undertaking by Mr. Carr, which was not sought or required by the Commission in relation to s.170LV(1) of the Act. Nonetheless, the Commission is satisfied to the extent that it can that there is no contravention of s.170LU(2A) of the Act and the clause does not, if it ever did, appear to offend against Part XA of the Act.

[79] Mr. Stroppiana also submitted that the provision of union meetings in the terms as proposed by the agreement gave rise to a contravention of s.298K(1)(e) and s.298L(1)(a) of the Act and as such attracted s.170LU(2A) of the Act. Clause 11.2.1 of the Agreement reads:

The Company will provide the Union with two paid meeting of 20 minutes duration in each store in each year, to allow every employee to attend, for the purpose of explaining the provisions of this Agreement to staff, on the following basis:

Normal store operations are to be maintained at all times,

Meetings are non-cumulative, and non-transferable between stores,

The Store Manager is to be notified at least 48 hours prior to such meetings being scheduled.

"the clause provides or allows every employee to attend these paid meetings, the clause does not permit employees who may be members of unions other than the SDA the facility of having their union, the union which they choose to become a member of, attend at the plant to conduct these paid meetings. This facility is only available to the SDA. And whilst it's available to all employees, if an employee elects to be a member of another union because of particular trade or craft which that employee is engaged, the employee is denied the right of having a representative of that union of which they've elected to become a member come on site and conduct a paid meeting."[39]

[81] It was explained to the Commission by the representatives of Woolworths that attendance of the paid meeting provided for at clause 11.2.1 was not restrictive:

"THE COMMISSIONER: I take it from Ms George's submissions and also from Mr Gillespie's comments, that the AMIEU and any other members of any other union and their representatives, may also attend that meeting?

MS GEORGE: That's correct, Commissioner."[40]

[82] On this basis, the Commission concluded as follows:

"[...] On the basis of that submission principally, I'm not satisfied that at this clause 11.2.1. could be construed as a clause that offends against Part XA in respect of 298K and 298L(1)(a). I'm not - this is principally because the clause is not restrictive to the representation only of employees who are members of SDA. But on the submissions of the parties to the agreement, the meetings are - the participants in the meetings may also be members of any union who are employees who are subject to the agreement, and their representatives."

"So, whilst the facility for a meeting on two occasions per year for a duration of 20 minutes in circumstances in which pay is provided may appear to be triggered by the SDA, participation and representation in those meetings is not restrictive. And as a consequence of that, I am hard pressed to believe that there could as a consequence be a concern in respect of section 170LU(2)(a) of the Act [...] ." [41]

[83] With these matters now disposed of, the Commission proceeded to consider the application that was before it for purpose of certification of an agreement in the wider context of the requirements of the Act and the Rules of the Commission.

[84] The Commission is satisfied that the agreement meets the relevant requirements of the Act and the Australian Industrial Relations Commission Rules 1998.

[85] The Commission is satisfied that the agreement has been entered into in a manner consistent with the Act's requirements:

• the employees have been given the relevant notice of the intention to enter into an agreement or to make the agreement;
• the terms of the agreement were explained in an appropriate way to all the employees who are to be covered by it;
• the agreement has been approved by a valid majority of employees at the relevant time; and
• The Shop, Distributive and Allied Employees Association has members employed by Woolworths Limited.

[86] Woolworths Limited meets the jurisdictional threshold in section 170LI of the Act.

[87] The Commission is satisfied that the agreement meets the No Disadvantage Test as defined in the Act.

[88] The agreement contains the necessary dispute settlement procedure.

[89] The agreement specifies a nominal expiry date in accordance with the Act's requirements.

[90] The agreement contains no provisions that are inconsistent with the relevant requirements of section 170LU of the Act, particularly so in relation to any contraventions of the Act.

[91] Consequently, the Commission approved the certification of the Agreement to operate on its own terms, consistent with clause 1.3, from date of the decision as given in transcript, 19 August 2004, until 27 May 2007.

Mr. Gillespie for Shop, Distributive and Allied Employees Association

Mr. Stroppiana for The Australasian Meat Industry Employees Union

Printed by authority of the Commonwealth Government Printer

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