Comalco Aluminium Ltd v Australian Workers' Union

[1998] FCA 549

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - demarcation dispute - organisation coverage order - whether order was an “order affecting an award” or an “award” under the Industrial Relations Act - whether Commission’s opinion is conclusive of this fact - nature of further order varying award.

Workplace Relations Act 1996 (Cth) s 413
Aluminium Industry (Comalco Aluminium Limited - Weipa) Award 1982
Industrial Relations Act (Cth)1988 ss 118A, 148, 4, 143, 111, 114, 113, 154

Parramatta City Council v Pestell (1972) 128 CLR 305 Appl
Foley v Padley (1984) 154 CLR 349 Appl

Comalco Aluminium Limited v Australian Workers’ Union and Construction, Forestry, Mining and Energy Union
No QG 104 of 1997

Kiefel J
Brisbane
21 May 1998

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG104 of 1997

BETWEEN:

COMALCO ALUMINIUM LIMITED
APPLICANT

AND:

AUSTRALIAN WORKERS' UNION
FIRST RESPONDENT

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
SECOND RESPONDENT

JUDGE(S):

KIEFEL J

DATE OF ORDER:

21 MAY 1998

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1. The order made by the Honourable Mr Justice Munro on 25 October 1991 and known as the Comalco Weipa Site Organisation Coverage Order 1991 is an order affecting an award within the meaning of section 143 of the Industrial Relations Act 1988.

2. Each party has liberty to apply in relation to any necessary variation of the terms of the order.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG104 of 1997

BETWEEN:

COMALCO ALUMINIUM LIMITED
APPLICANT

AND:

AUSTRALIAN WORKERS' UNION
FIRST RESPONDENT

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
SECOND RESPONDENT

JUDGE(S):	KIEFEL J
DATE:	21 MAY 1998
PLACE:	BRISBANE

REASONS FOR JUDGMENT

Comalco Aluminium Limited (“Comalco”) applies pursuant to s 413 Workplace Relations Act (Cth) 1996, for a declaration as to the meaning of an order made on 25 October 1991. The application concerns the connexion of that order with the Aluminium Industry (Comalco Aluminium Limited - Weipa) Award 1982 (“the Weipa Award”). 

The Weipa Award appears to have been made following an application by Comalco to vary a previous award made in 1980.  It was expressed to apply to Comalco “as to the employment by it of members of the following organisations of employees …”.  Amongst the organisations then listed were the Federated Engine Drivers’ and Firemens’ Association of Australasia (“the FEDFA”) and the Australian Workers’ Union  (“the AWU”)(Clause 3(a)).  The Weipa Award was expressed to be binding on those organisations and their members with respect to their employment by Comalco in Weipa, Queensland and adjacent areas (Clause 4).

On 25 October 1991 Munro J made an order, on the application of Comalco, the title of which referred to the Weipa Award and to organisation coverage under s 118A Industrial Relations Act (Cth) 1988 (the “IR Act”).  After detailing the history of a demarcation dispute and the eligibility rules of each of the AWU and FEDFA, his Honour ordered:

“(a) That pursuant to Section 118A(1)(c) of the Industrial Relations Act 1988 (the Act), the Federated Engine Drivers’ and Firemens’ Association of Australasia (the FEDFA) does not have the right to represent under the Act the industrial interests of persons otherwise eligible for membership of that organisation and employed by Comalco Aluminium Ltd (the Company) in its operations at Weipa in the State of Queensland.”

The order was known as the Comalco Weipa Site Organisation Coverage Order 1991.  The order also provided, as a condition, that financial members of the FEDFA were to be treated as members of the AWU.  The order was expressed to take effect on 2 December 1991 and to remain in force for 24 months.

Subsection (5) of section 118A provides that unless the Industrial Relations Commission is satisfied that the rules of the organisation affected by such orders do not need to be altered, it is to refer the matter and the order to a Presidential Member. On 27 January 1993 Deputy President Williams made an order altering the rules of the FEDFA. By this time FEDFA had amalgamated with the Construction Forestry Mining and Energy Union (“the CFMEU”), the second respondent to this application. On 26 February 1993 Commissioner Hoffman made an order varying the Weipa Award by deleting reference to the FEDFA in Clause 3(a), and providing that it come into force on or after 25 January 1993.

An application was brought by the CFMEU in May 1997, by which it sought to change its rules.  It provides the impetus to this application.  That application has yet to be determined by the Commission and it is not necessary to make further reference to it. 

The issue in this application is whether the order of Munro J under s 118A(1)(c) IR Act continues to have force and effect. It only continues in effect, it is common ground, if it has the necessary connexion with the Weipa Award. The Weipa Award, although expressed to expire at a particular time, continues in force by virtue of s 148 until a new award is made dealing with the same matters. Comalco’s argument would have the order under s 118A(1)(c) assume that longevity, despite it being expressed to be limited in operation to two years. This would be so, in its submission, because the definition of an “award” extends to an order “affecting an award” and since the Coverage Order had that quality, it too continues in effect for the same period as the Award. This would mean the CFMEU was denied its rights of representation in connexion with the Award, until a new award came into existence.

Section 4 defines an “award” relevantly to mean:

“…an award or order that has been reduced to writing under subsection 143(1) …”

Section 143(1), which appears in Division 6 (“Awards of Commission”) and is entitled “Making and Publication of Awards etc” provides:

“143(1)  [Commissioner’s duties]  Where the Commission makes a decision or determination that, in the Commission’s opinion, is an award or an order affecting an award, the Commission shall promptly:

(a)      reduce the decision or determination to writing that:

(i)expresses it to be an award;

(ii)is signed by at least one member of the Commission; and

(iii)shows the day on which it is signed;  and

(b)      give to the Registrar:

(i)a copy of the decision or determination;  and

(ii)a list specifying each party who appeared at the hearing of the proceeding concerned.

(The emphasis is mine)

Subsection (2) provides that when the Commission makes a determination or a decision that, in its opinion, is not an award but is of significance or has appeal rights attending it, the Commission is also to ensure its publication. 

The power to make awards is conferred by s 111, Division 3, which is entitled “Particular powers of Commission”. Section 118A also appears in that Division. Section 118A(1)(c) provides that the Commission may, on application, make an order:

“… that an organisation of employees is not to have the right to represent under this Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation”.

Subsection (3) allows such an order to be made subject to conditions or limitations.

A purpose of s 143 appears to be in making public decisions of importance, whether they be awards or not. The need for the Commission to qualify a decision, as an award or not an award, was no doubt intended to assist identification of a current award which may be made up of a number of decisions, given the extension effected by the reference to “an order affecting an award” and powers of variation.  The Commission’s opinion is not however in my view conclusive as to whether a decision or determination has that quality.

In the present case the Coverage Order was not expressed to be an award, although it did contain reference to the Weipa Award in its title. It was signed by a member of the Commission and dated, but those are also requirements of subsection (2) in relation to non-award decisions and determinations, and nothing can be gleaned from it. One might infer from the reference to the Weipa Award in the title that Munro J considered that the order had a real connexion with the Award. That there was not added the description of “award” to the order does not mean that the decision was considered to be one under s 143(2) since it is equally, if not more likely, that it was considered to be an order affecting an award, but not an award itself. In any event the opinion of the Commission, referred to in s 143, cannot be taken as conclusive of these matters. The opinion to be formed by the Commission, for the purpose of s 143(1), does not form part of the decision or determination in question. It is one, the purpose of which is to facilitate notification and publication through correctly identifying the components of an award. Any such opinion as to the legal nature of the decision or determination, having regard to the provisions of the IR Act, is clearly not conclusive of the question if it be wrong in law, for the reason that the opinion required by the subsection has not been made:  see Parramatta City Council v Pestell (1972) 128 CLR 323; Foley v Padley (1984) 154 CLR 305, 352-3.

Of the parties to the application only the AWU contended that the order in question took effect as an award itself. It was submitted that it was made in settlement of an “industrial dispute” and that this sufficed to render it an award. Section 4(1) defines such a dispute to include a “demarcation dispute”, which in turn is defined to include a dispute about the representation “under this Act” of the industrial interests of employees by an organisation of employees. Whilst s 4 does not provide any assistance to what is encompassed by an award, some assistance may be derived from other provisions in the Act, and in particular s 111. Section 111(1) provides that the powers provided by the section, which include a power to make an award, are provided in relation to and to deal with an industrial dispute. To this point the AWU’s argument finds support. However the section at a number of points refers to “an award or order” and to that extent appears to differentiate between them (see also s 114). With respect to site organisation coverage, the subject of the order here in question, s 118A refers to orders, and not awards, that may be made. It will not however be necessary to conclude this question unless I were of the view that the Coverage Order here in question did not qualify as one affecting an award.

The parties’ principal contentions with respect to that question can, I think, be stated shortly. Comalco submits that the Weipa Award conferred rights relating to representation on the FEDFA, and the order removed them. It then follows that the order “affects” the Award. Counsel for the CFMEU submitted that the order affected the employee organisation’s rights of representation, but not the Weipa Award itself. Moreover, it was submitted, there was a limited effect upon FEDFA’s rights because the Weipa Award continued to operate with respect to members of FEDFA. The submissions for Comalco pointed to particular provisions of the Weipa Award said to be affected by the order, but they came down to the same thing, namely the right of FEDFA to participate in and represent its members and to take part in settlement procedures, although they included some ancillary rights such as the right to inspect records and exercise powers of entry. It would seem to me that the order made, which denied FEDFA a right to represent persons eligible to be its members and employed by Comalco at Weipa, was an order directed at the Weipa Award, as its title suggests, and its terms took effect to limit its operation so far as FEDFA was concerned. It was in that sense an order which affected the award and would seem to me to come within the provisions of s 143(1).

Each of the CFMEU and Comalco placed reliance upon the later order varying the Weipa Award as relevant to the issue, the CFMEU contending that it should be taken as that which relevantly affected the Award, within the meaning of s 143(1). Comalco submitted that it merely gave effect to the Coverage Order. I have also received further submissions as to the remaining operation and effect of the Coverage Order consequent upon the variations effected to the Award.

The variation was made, upon the application of Comalco, citing the Coverage Order as providing the basis or need for a variation. The order made was not one declaratory of rights, but was one which required that the reference to FEDFA in clause 3(a) of the Weipa Award be deleted. Section 111 provides the Commission with wide powers with respect to awards, and includes powers to set them aside, to revoke them and to vary them. Subsections 113(2) and (3) give specific powers to vary awards. Subsection (2) appears relevant here. It provides that the Commission may vary an award if it considers it desirable for the purpose of removing ambiguity or uncertainty. In the present case the industrial dispute had been resolved by the Coverage Order. The later variation merely gave some effect to it, no doubt in an attempt to make clear which organisations had rights under the Award and to facilitate the updating of the Award (see, for example, s 154), but it did not specify the full terms and effect of the order.

It will be recalled that the Coverage Order was expressed to be limited in its duration to two years. Section 148 (“Continuation of Awards”) provides that, “Subject to section 113 and any order of the Commission, an award dealing with particular matters continues in force until a new award is made dealing with the same matters”.  The Weipa Award, as I have earlier observed, was also given a set term, as s 147 requires.

In the case of an order affecting an award and which is expressed to operate for a different period, as a limitation or condition where no set term is required to be stated (see s 118A(3)), it seemed to me possible to construe its operation in connexion with the Award as operating to affect it for the period stated, but no longer. I did not however understand such an approach to have been contended for at the hearing. As against such an approach it may in any event be said that once an order is made affecting an award, bringing it within the definition of an award, it also attracts the operation of s 148 so that it continues to operate for the extended term of the award. As to a shorter or different time being expressed for the order, it may be observed that by providing an extended definition of what is an award, the Act intended its continuation as much as it did the Award proper which itself was expressed in the first place only to operate for a specified period.

There remains the question of the terms of the declaration to be made.  It seems to me sufficient to make an order declaring that the order made by Munro J on 25 October 1991 and entitled “the Comalco Weipa Site organisation Coverage Order 1991” is an order affecting the Aluminium Industry (Comalco Aluminium Limited - Weipa) Award 1982, but I will hear further submissions.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel

Associate:

Dated:             21 May 1998

Counsel for the Applicant:	R Buchanan QC and G Martin
Solicitor for the Applicant:	Freehill Hollingdale & Page
Counsel for the First Respondent:	A Herbert
Solicitor for the First Respondent:	CA Sciacca & Associates
Counsel for the Second Respondent:	S Crawshaw
Solicitor for the Second Respondent:	Nall Payne
Date of Hearing:	23 March 1998
Date of Judgment:	21 May 1998