Australian Colleries Staff Association v Thiess Dampier Mitsui Coal Pty Ltd

[1983] FCA 69

8-"" I N THE FEDERAL COURT OF A U S T R i L I A

w.---J

I '

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

t and

M . I. M. HOLDINGS LIMITED

and

C. S . R. L I M I T E D

Interveners

ORDERS

JUDGE MAKING ORDERS: ST. J O H N , J.

DATE OF ORDERS: 2 2 MARCH 1 9 8 3

WJ3ERE MADE: AT BRISBANE

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THE COURT ORDERS THAT:

1. The in t e r locu to ry app l i ca t ion of t h e Federated

Clerks ' Union of Aus t ra l ia to i n t e r v e n e i n t he

proceedings i s granted.

2. 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.

t

i

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

C 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

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By 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 S. 2 1

of the Federal C o u r t of Aust ra l ia A c t 1 9 7 6 , S. 36

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 " ) ,

a d e c l a r a t i o n a s t o the r i g h t of enforcement against

the respondent, awards made by the Coal Industry

Tribunal made pursuant to S. 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 a 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, a 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

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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

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 to those companies t o

in te rvene , as I considered it des i r ab le pu r suan t t o

S. 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

of Aus t ra l ia ("the C l e r k s ' Union") to 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" t o t ha t organisa t ion to in te rvene and indlcated that

I would l a t e r g ive r easons , as 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

of my 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 of a 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

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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 by

the s1x named employees re fer red to . In addl t ion ,

annexed t o one a f f i d a v i t , t h a t of 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:-

I,

.... Mr. Gaussen ( t h e Federal Secretary) said:

F ' In February 1 9 8 0 we f i l e d a claim on one

of 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 of 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 a favorable decision because

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

I,

....

Before these a f f i d a v i t s were read, I 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.

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The d e f i n i t i o n of e l i g l b i l i t y i n t h e Clerks‘

Union r u l e s , 1s a d e f i n i t i o n based upon t h e a c t i v i t y

of 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 he or she i s working. On 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 of

the appl icant organisat ion ls, i n p a r t , a 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 a 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 a na t iona l or o ther po in t

of view could be considered in determining whether it

is the pr inc ipa l bus iness of the firm o r company. I

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 of the organisat ion he represented.

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t o whether intervention should t h e p r i n c i p l e s t o be appl ied in determining

As

be allowed, no 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 by the Master Bu i lde r s Association

of Mew South Wales to in te rvene in proceedings by 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 of the respon-

dent organisa t ion pursuant to S. 144 of the Act. R. v.

Evatt; Ex 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 no 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 v.

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 no common law power t o allow in te rvent ion

by t h e Commonwealth and d i s t ingu i shed the cons t l t u t lona l

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practlce of the High Court to allow intervention 7

characterising it as being "based on the concept of

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

I 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

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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 of 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 S. 1 9 7 A of the A c t militate

aga ins t in te rvent ion . The proceedings will no doubt

be lengthened t o some ex ten t , bu t I consider t h l s i s

a f a c t o r of mmimal importance, and not such as to

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 a tes t case and, a t p. 1 7

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

a 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.

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It was not argued by 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 be determined

by consideration only of t h e Federal Court of 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 of 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 S. 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