Australian Colleries Staff Association v Thiess Dampier Mitsui Coal Pty Ltd

8-""

I N THE

FEDERAL

COURT

A U S T R i L I A

w.---J

NEW SOUTH WALES DISTRICT

REGISTRY

INDUSTRIAL

DIVISION

No.	4 3 of 1 9 8 2

BETWEEN:

AUSTRALIAN

COLLIERIES'

STAFF

ASSOCIATION

A p p l i c a n t

AND :

THIESS

DAMPIER

MITSUI

COAL

PTY.

LIMITED

R e s p o n d e n t

AND :

UTAH DEVELOPMENT COMPANY

and

I. M. HOLDINGS

LIMITED

and

S .

L I M I T E D

Interveners

ORDERS

JUDGE MAKING ORDERS:

ST.

J O H N ,

DATE OF ORDERS:

2 2 MARCH

1 9 8 3

WJ3ERE

MADE:

BRISBANE

I. ./2

THE COURT ORDERS THAT:

The

in t e r locu to ry

app l i ca t ion

t h e Federated

Clerks '

Union

Aus t ra l ia

i n t e r v e n e i n

t he

proceedings i s granted.

The

subs tan t ive

appl ica t ion

is stood

over

genera l ly with

l i b e r t y t o

any

par ty or in te rvener

who	remains an intervener to res tore	on seven	(7)
days'	notice.

I N THE

FEDERAL

COURT OF AUSTRALIA

NEW SOUTH

WALES

DISTRICT

REGISTRY

INDUSTRIAL

DIVISION

No.

4 3 of

1 9 8 2

BETWEEN :

AUSTRALIAN

COLLIERIES'

STAFF

ASSOCIATION

A p p l i c a n t

AND :

THIESS DAMPIER MITSUI	COAL PTY.
LIMITED

R e s p o n d e n t

AND :

UTAH DEVELOPMENT COMPANY

and

M. I. M. HOLDINGS

LIMITED

and

C. S. R. LIMITED

Interveners

REASONS FOR JUDGMENT

ST. JOHN, J.

AT SYDNEY

WEDNESDAY

27 A P R I L

1 9 8 3

* ./2

an app l i ca t ion f l l ed

1 7 t h November,

1 9 8 2 ,

t h e

appl icant here in sought , pursuant to

2 1

the Federal C o u r t of

Aust ra l ia A c t 1 9 7 6 , S.

of the Coal Industry Act

1 9 4 6 and the provisions of

the

Conci l ia t ion

and

? ! b i t r a t i o n

A c t 1 9 0 4

(" the A c t " ) ,

d e c l a r a t i o n a s t o

the r i g h t

enforcement against

the respondent,

awards made by the Coal Industry

Tribunal made pursuant to

32(2) of t h e Coal Industry

A c t

1 9 4 6

and,

i n p a r t i c u l a r , t o d e c l a r e

t h a t

t he

award

was

appl icable as

between

s ix named

employees of

t he

respondent i n their Brisbane offlce, and the respondent.

I n s h o r t ,

the

appl ica t ion seeks

dec lara t ion that the

employment of

those employees

i s governed by

the award

of the abovementioned Coal

Industry Tribunal.

Although S.

2 1 of

the Federal Court

of Aus t ra l ia

A c t i s

r e fe r r ed

to,

i n a d d i t i o n t o t h e

A c t ,

as giving

t h e c o u r t j u r i s d i c t i o n ,

the

appl ica t ion

is ,

in essence ,

f o r the

i n t e r p r e t a t i o n of

an award,

power

spec i f i ca l ly

given this cour t by S.

110 of the A c t .

P rev ious ly , appl ica t ions for

Leave

t o

intervene

were made and argued pursuant t o S. 1 0 6 ( 2 ) of t he A c t , and no submissions were made t h a t such sec t ion w a s not

./3

a p p l i c a b l e

l n

the circumstances.

The appl icants

t o in t e rvene

were

corporat lons who

employed persons

i n t h e same capaci ty as

the SLX named employees

referred to above,

and

p a r t of

their business

was

i n c o a l mining,

either by themselves o r by subsidlary

companies. I granted

leave

those

companies

t o

in te rvene , as

considered

des i r ab le pu r suan t t o

106(2) of

the A c t and, on 28th February,

1983,

M r .

Lamprati appeared before

m e

and foreshadowed an

appl ica t ion by

his

c l i en t ,

the

Federated C l e r k s '

Union

Aus t ra l ia

("the C l e r k s '

Union")

intervene.

That

appl ica t ion was heard on 22nd March,

1 9 8 3 i n Brlsbane

and,

a t t h e conclusion of

the hearing, I granted leave

t o t ha t organisa t ion to in te rvene

and

indlcated that

would

l a t e r g ive r easons ,

M r .

Flybrow,

who

appeared

f o r

the

a p p l i c a n t i n

a l l

appl ica t ions , ind ica ted tha t

h i s

c l i e n t had appealed agalnst the previous grants of

in te rvent ion and

proposed, also,

t o appeal

i n respec t

order allowing the Clerks '

Union

to in te rvene .

In respec t of

the appl icat ion by

the Clerks ' Union,

a f f i d a v i t s were

read

and

the relevant content

of those

a f f i d a v i t s was

t o

the

effect

t h a t

t h e

e l e g i b l l i t y c l a u s e

f o r membership of

t h a t union was def ined by reference to

t h e funct ion

c l e r k

and

t o t h e

e f f e c t t h a t c l e r k s , i n

. /4

whatever

lndustry

they

were employed, performed

the

same

o r s imi l a r s e rv i ces a s

were

being performed

the s1x named employees re fer red

to .

addl t ion ,

annexed

t o one

a f f i d a v i t , t h a t

Richard John

Nasson,

the Ass is tan t Federal Secretary of

the Clerks '

Union, was a photographic copy of

a newspaper r e p o r t

of a statement by the Federal Secretary of

t h e

app l i can t o rgan i sa t ion to

the

effect

that

the appl i -

ca t ion here in

was

being used a s a test case, and t h a t

the r e s u l t of

the

appl ica t ion would

a f f e c t s t a f f

i n

a l l major

coal mining

company

head

o f f i c e s i n c a p i t a l

ci t ies.

The newspaper a r t i c l e went on as follows:-

.... Mr.

Gaussen

( t h e Federal Secretary) said:

' In February

1 9 8 0 we f i l e d a claim on one

the

companies

f o r a l l p e o p l e t o r e c e i v e

bene f i t s

t h e award

and

enrolment into

t h e

associat ion.

'The

Coal

Industry Tribunal ruled that

the

s t a f f

were

involved

i n t h e

mining industry

but d i d not make

favorable decision because

they were more than 6 0 0 km from a mine s i te , '

....

Before

these

a f f i d a v i t s were

read,

s p e c i f i c a l l y

asked M r . Wybrori whether he ob jec t ed to any of

their

contents as inadmissible,

and he r ep l i ed in

the

negative.

The a f f i d a v i t of M r . Wasson was dated 11th

March,

1 9 8 3 , and no

evidence i n r e p l y t o

it vas adduced.

./5

The

d e f i n i t i o n

e l i g l b i l i t y i n t h e

Clerks‘

Union

r u l e s ,

d e f i n i t i o n based

upon

t h e a c t i v i t y

the p a r t i c u l a r employee,

M i t h O U t r ega rd to

the

l n d u s t r y i n

which

or she

i s working.

t h e other

hand,

the d e f i n i t i o n of

e l i g i b i l i t y f o r

membership

the appl icant organisat ion

ls,

i n p a r t ,

d e f l n i t i o n

by reference t o the industry i n which he or she

i s

employed

and,

i n p a r t i c u l a r ,

reference is made

t o

employment

i n f i r m s o r

companies

whose

p r inc ipa l

business i s that of

coal mining.

The meaning of

the

ad jec t ive “pr inc ipa l” has not

been explored

i n these

proceedings, but

it can be r ead i ly assumed

tha t t he

c r i t e r ion to de t e rmine

what

i s

p r inc ipa l

bus iness

where a firm o r company c a r r i e s on a number of

businesses

i s not easi ly determined.

Such

crl teria

a s

the c a p i t a l a s s e t s

employed,

the numbers

i n the work

force,

the

n e t t p r o f i t , t h e g r o s s p r o f i t , o r t h e

industry’s importance

from

na t iona l or o ther po in t

of view could

be considered in determining whether

is the pr inc ipa l bus iness

the firm o r company.

mention

th i s

m e r e l y t o i l l u s t r a t e t h a t e l i g i b i l i t y f o r

membership i n the applicant Organisation

is not as

c l e a r as

Mr.

Wybrow would have m e accept when he argued

t o t h e

effect

t h a t s u c h

c lause was

r e s t r i c t i v e i n

r e l a t i o n t o

membership

the organisat ion

he represented.

.;6

t o whether intervention should

t h e p r i n c i p l e s t o

appl ied in determining

allowed,

a u t h o r i t i e s

which

were

r e l e v a n t t o t h e s t a t u t o r y

power

given

t o

the cour t

i n S.

1 0 6 ( 2 ) of

the A c t which were

cited

were of

any

g rea t a s s i s t ance .

I n Owens

and

Others v.

A u s t r a l i a n Building

Construction Employees

and

Builders Labourers Federation

(1978) 1 9 A.L.R.

569, a F u l l Court of

t h i s court

re jec ted an appl ica t ion

the Master

Bu i lde r s Association

Mew

South Wales

to in te rvene in proceedings

c e r t a i n

ind iv ldua ls , the objec t

of which proceedings

was

t o

have

them dec la red a s e l ig ib l e

for membership

the respon-

dent

organisa

ion

pursuant

S. 144 of the

Act.

Evatt;

p a r t e Master Builders Association of

New South

Wales

(1974) 132 C.L.R.

150 was c i t e d and the relevant

passage quoted

a t p. 575 of Owens'

case reproduced, but

it is c l e a r t h a t t h e

High

court gave

real guidance as

t o t h e p r i n c i p l e s

t o be

applied.

The F u l l Court i n Owens'

case was

a l s o r e f e r r e d t o

CorpoYate

Affa i r s Commission

Bradley;

Commonwealth of Austral ia

( Intervener)

( 1 9 7 4 )

1 N.S.N.L.R.

391 where,

i n the leading

judgment of

Hutley,

J.A.,

t h e N e w

South Wales

Court of Appeal had held

t h a t t h e r e v a s

common

law power

t o allow in te rvent ion

t h e

Commonwealth

and

d i s t ingu i shed the cons t l t u t lona l

./7

practlce of the High Court to allow intervention

characterising it as being "based on the concept

legislative trespass and the right of the Attorney- by the Commonwealth to protect its citizens from such trespass".

It appears to me that In determining questions

of the right to intervene, consideration should be

given to the objects of the Act which are set out in

S. 2 in general terms and that it is permissible to

take judicial notice that demarcation disputes and

poaching by one organisation of another's members on

occasions lead to industrial action of

an extremely

troublesome kind, where employers are powerless and

where the objects of the Act are defeated.

In my

view, the Clerks' Union has

a clear interest in the

outcome of the application in that it may lose members

to the applicant organisation and this view is reinforced

by Mr. Wybrow's submissions to the court to the effect

that the six named employees would be far better off

financially and as to entitlement to long service leave

if the award was enforced in their favour than they would

be if they performed the same functions and remained

members of the Clerks' Union. The result of allowing

./8

t h e

f o u r p a r t i e s t o i n t e r v e n e

i s

t h a t employees

whose work

func t ions poss ib ly en t i t l e

them

t o member-

sh ip of

e i ther union,

and

t h e two organisa t ions ,

the

e h g l b i l i t y for membership provisions of

which make it

p o s s i b l e f o r

the

same

work

t o be

carried

o u t i n d i f f e r e n t

i n d u s t r i e s w i t h r e s u l t i n g d i f f e r e n t

rates

pay,

w l l l

be ab le to p ro tec t

their

r e s p e c t i v e i n t e r e s t s i n

the

determmation of

the i ssue before

the court .

M r .

Wybrow,

f o r t h e appl icant organisat ion,

has

stressed that the hear ing may well be lengthened

as a

r e s u l t of intervent ion

and the restrictive nature of

t he cos t s p rov i s ions in

1 9 7 A of

the

A c t militate

aga ins t

in te rvent ion .

The proceedings will

doubt

be lengthened

t o some ex ten t , bu t

I consider t h l s i s

f a c t o r

mmimal importance, and not such

render

it undes i rab le tha t

the in te rvent ions take

place.

In submissions

made

t o m e ,

f o r example a t p.

13 of the

t r a n s c r i p t where

M r .

Wybrow

s t a t e d

t h a t his

organisa t ion

regarded the appl icat ion as

tes t case

and,

a t p.

1 7

the t r a n s c r i p t where he said t h a t what was

wanted was

test case in o rde r t o de t e rmine

whether

it was

worthwhile pressing against

"the o thers" , there

is a

clear statement of

the purposes of the application.

For the above reasons, I granted leave to

the

Cle rks '

Union

to intervene.

./9

It was

not argued

t h e a p p l i c a n t t h a t

t h e

power

t o give leave to intervene should

determined

consideration only of

t h e Federal Court

Aus t ra l la

A c t .

Had it been so argued,

I would have inc l ined to

the view t h a t , a s

the

appl lca t ion v7as,

i n e s s e n c e ,

for

t h e i n t e r p r e t a t i o n

t h e

award,

the

provisions of

t h e A c t inves t ing the

cour t w i th

t h a t power

were

applicable.

Further , it V70Uld appear

tha t

2 1 of

t he Federal

Court of Australla

A c t can be

invoked only

by those whose r igh ts are sought to be

declared, i n this

case, t h e s i x

named employees;

the argument

would,

therefore, have been self-defeating,

there

being no

l o c u s s t a n d i i n	t h e	appl icant organisat ion.
Associate

[1983] FCA 69

22 Mar 1983