Construction, Forestry, Mining and Energy Union v Gordonstone Coal Management Pty Ltd
[1998] FCA 1610
•17 DECEMBER 1998
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW – Coal Industry Act 1946 (Cth) – Workplace Relations Act 1996 (Cth) – whether a document which issued in a proceeding before the Coal Industry Tribunal is an award within the meaning of ss 178 and 413 of the Workplace Relations Act 1996 (Cth)
Workplace Relations Act 1996 (Cth), ss 173, 356, 413
Coal Industry Act 1946 (Cth), ss 30, 32, 36
Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales (1982) 149 CLR 337, cited
Short v F.W. Hercus Pty Limited (1993) 40 FCR 511, cited
Kucks v CSR Limited (1996) 66 IR 182, cited
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v GORDONSTONE COAL MANAGEMENT PTY LTD
NG 603 of 1998
BRANSON J
SYDNEY
17 DECEMBER 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 603 of 1998
BETWEEN:
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
APPLICANTAND:
GORDONSTONE COAL MANAGEMENT PTY LTD
(ACN: 000-480-071)
RESPONDENTJUDGE(S):
BRANSON J
DATE OF ORDER:
17 DECEMBER 1998
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The question whether the document referred to in paragraph 9 of the Amended Statement of Claim as the “CIT Instrument” is an award within the meaning of ss 178 and 413 of the Workplace Relations Act 1996 (Cth) be answered, No.
The proceeding be dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 603 of 1998
BETWEEN:
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
APPLICANTAND:
GORDONSTONE COAL MANAGEMENT PTY LTD
(ACN: 000-480-071)
RESPONDENT
JUDGE(S):
BRANSON J
DATE:
17 DECEMBER 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
On 19 June 1998 the applicant lodged an application under ss 178 and 356 of the Workplace Relations Act 1996 (Cth) (“the WR Act”) for imposition of penalties in respect of breaches of an award, and under s 413 of the WR Act for an interpretation of that award. The applicant further seeks a declaration under s 21 of the Federal Court of Australia Act 1976 (Cth) that certain conduct was in breach of that award.
The proceeding was instituted by the applicant on the basis that a document (to use a neutral term) dated 8 February 1995 (“the Document”) issued in proceeding number 388 of 1994 of the Coal Industry Tribunal (“the Tribunal”) is an award within the meaning of ss 178 and 413 of the WR Act. The respondent contends that such document is not an award within the meaning of those sections. On 6 August 1998, pursuant to O 29 r 2 of the Federal Court Rules, I made an order that the question whether the Document is an award within the meaning of ss 178 and 413 of the WR Act be decided separately from any other question and before any trial in the proceeding.
The Alleged Award
It is convenient to set out the terms of the Document in full:
“COAL INDUSTRY ACT 1946
(Australia)In the matter of an industrial dispute or matter wherein
CONSTRUCTION, FORESTRY, MINING & ENERGY UNION (UMW Division)
and
GORDONSTONE COAL MANAGEMENT PTY LIMITED
are parties.
No. 388 of 1994
1995 EMERALD Feb. 8
Coal Industry TribunalThis application by the Construction, Forestry, Mining & Energy Union (UMW Division)(CFMEU) sought orders that management of Gordonstone Coal be directed to desist from permitting and/or directing non-production and non-engineering employees from performing the work of production and engineering employees. The application followed a number of incidents at the mine.
By agreement of the parties the matter proceeded by way of conference and a proposal for handling the matter has emerged.
Before setting out the principles and procedure to apply I note that they have been framed not only with a view to preventing dispute over the matter but also to be consistent with the continuing and indeed developing senses of team work and flexibility which are among the aims of the Gordonstone operation. I also note that the parties have indicated to me their awareness that the matter is one which requires continuing application of common sense to an issue which is normally handled without any difficulty. It is my hope that the procedure will assist a return to normalcy.
It is my understanding that not only will staff members be advised of the outcome of these procedures but also there will be a presentation to a joint meeting of the members of the CFMEU and staff. The details of such meeting will be attended to by the parties.
The principles are:-
1.Staff are not employed to perform CFMEU work.
2.There is a practice or tradition that staff in certain situations may give assistance to members of the CFMEU. This is based on the principle of acceptance not imposition.
3.Imposition is wrong and an unwillingness to accept that as demonstrated by repeated breaches must be addressed by education and counselling. If unsuccessful something more must be done.
4.One of the elements of the education/counselling process is recognition by the individual that repeated breaches is a failure to comply with a reasonable request of management.
5.This process is not to be used for victimisation of any individual.
6.There shall be a review of this procedure and its operation six months from today.”
The Coal Industry Tribunal
The Tribunal, which has now been abolished, was constituted pursuant to an arrangement between the Governor-General and the Governor of New South Wales (Coal Industry Act 1946 (Cth) s 30). It was given by Part V of the Coal Industry Act 1946 (“the CI Act”) extensive powers to deal with industrial disputes in the coal industry, including the power to make awards and orders which were to have effect in all respects as if they were awards or orders of the Commonwealth Conciliation and Arbitration Commission (s 36 of the CI Act).
The CI Act was amended by s 3 of the Industrial Relations Legislative Amendment Act (No. 2) 1994 (“the Amendment Act”) in accordance with certain items in Schedule 1 of that Act. Item 15 of Schedule 1 (“item 15”), so far as is here relevant, provided as follows:
“15.Existing awards, orders, decisions and agreements made under the Coal Industry Act
(1)A reference in this item to an instrument is a reference to:
(a)an award or order made by the [Coal Industry] Tribunal, or
(b)…..
(c)an agreement made at a hearing before the Tribunal or a Local Coal Authority; or
(d)an agreement made under a provision of an award made by the Tribunal;
that had effect as mentioned in subsection 36(1) or (2) of the Coal Industry Act immediately before the commencement of this item.
(2)On or after the commencement of this item, an instrument, to the extent to which it was made under the powers and functions vested by subsections 32(2) of the Coal Industry Act, has effect as, and is taken to be, an award made by the [Australian Industrial Relations] Commission under the Industrial Relations Act.”
Subsections 36(1) and (2) of the CI Act immediately before the commencement of item 15 provided as follows:
“36(1) An award or order made by the Tribunal by virtue of the powers and functions vested in the Tribunal by sub-section 32(2) –
(a)has effect in all respects as if it were an award of the Commission; and
(b)is binding on –
(i)the parties; or
(ii)the persons on whom it is expressed to be binding, including an organization, if it is expressed to be binding on an organization, and the provisions of the Conciliation and Arbitration Act 1904-1956 under which awards of the Commission may be enforced apply in relation to such an award or order made by the Tribunal as if it were an award of the Commission.
(2)Where, at the hearing before the Tribunal, an agreement as to the whole or part of an industrial dispute (being an industrial dispute in relation to which powers and functions are vested in the Tribunal by sub-section 32(2)) is made in writing between the parties to the dispute, the agreement shall be filed in the Principal Registry or a District Registry established under the Conciliation and Arbitration Act 1904-1956 and thereupon –
(a)the agreement has effect in all respects as if it were an award of the Commission;
(b)the agreement is binding on the parties to the agreement; and
(c)the provisions of the Conciliation and Arbitration Act 1904-1956 under which awards of the Commission may be enforced apply in relation to the agreement as if it were such an award.”
Section 36 of the CI Act was affected by the Industrial Relations Act 1988 (Cth) and by s 88 of the Industrial Relations (Consequential Provisions) Act 1988 (Cth). Section 88 of that Act, so far as is here relevant, provides as follows:
“88(1) The Coal Industry Act 1946 has effect after the commencement [i.e. of s 8 of the Industrial Relations Act 1988 (Cth) which established the Australian Industrial Relations Commission] as if:
(a)a reference to the former Commission included a reference to the new Commission;
(b)…..
(c)a reference to the Principal Registry or a District Registry established under the previous Act were a reference to a registry established under the Industrial Relations Act.
(2)Division 2 of Part VIII of the Industrial Relations Act applies (by virtue of section 36 of the Coal Industry Act 1946) in relation to awards and orders made by the Coal Industry Tribunal as if references to a Presidential Member or a Registrar were references to that Tribunal.
(3)An agreement that, before the commencement, had been filed, under subsection 36(2) of the Coal Industry Act 1946, in the Principal Registry or a District Registry established under the previous Act shall, for the purposes of that subsection as in force after the commencement, be taken to have been filed in a registry established under the Industrial Relations Act.”
Item 15 came into operation on 1 July 1995. The Document thus came into existence before item 15 came into operation. If the Document is an “instrument” within the meaning of item 15(1), to the extent to which it was made under the powers and functions vested by s 32(2) of the CI Act, it will have effect as an award made by the Australian Industrial Relations Commission under the Industrial Relations Act.
Workplace Relations Act 1996 (Cth)
Section 178 of the WR Act, so far as is here relevant, provides as follows:
“178(1)… where an organisation or person bound by an award … of the Commission … breaches a term of the award … a penalty may be imposed by the Court …
…”
Section 413 of the WR Act provides:
“413(1) The Court may give an interpretation of an award on application by:
(a)the Minister; or
(b)an organisation or person bound by the award.
413 (2) The decision of the Court is final and conclusive and is binding on the organisations and persons bound by the award who have been given an opportunity to be heard by the Court.”
It was not suggested before me that the Document did not derive from an exercise of the powers and functions of the Tribunal vested by s 32(2) of the CI Act. It seems clear that it did so derive.
CONSIDERATION
The central issue for my determination is whether the Document is an “instrument” within the meaning of item 15(1). The applicant contends that the Document is an “instrument” within the meaning of item 15(1) on the basis that it is an order made by the Tribunal or alternatively an agreement made at a hearing before the Tribunal
The Macquarie Dictionary relevantly defines “order” as follows:
“n.1. an authoritative direction, injunction, command, or mandate. 2. Law. a command of a court or judge”.
Whether the word “order” is used in item 15 of Schedule 1 of the Amendment Act in its ordinary meaning or in a technical or legal sense it seems to me that an “order” must be something intended to have force or authority, something intended to bind one or more persons or entities. A mere record does not, either as a matter of ordinary usage or technically or legally, amount to an “order”.
The Document does not by its terms purport to be an order, nor does it, in my view, disclose an intention to direct or command any person or entity. Further, in my view, its contents, for the reasons discussed below are not capable of binding any person or entity (see s 36(1)(b) of the CI Act). They are insufficiently definite in their terms. I conclude that the Document is not an “order” within the meaning of item 15(1).
Nor, in my view, is the Document “an agreement made at a hearing before the Tribunal” within the meaning of item 15. Item 15, in my view, is plainly concerned with an enforceable agreement; that is, an agreement giving rise to rights and obligations. The Document is not such an agreement. It does not purport to be an enforceable agreement, or even to evidence an enforceable agreement. Rather, the Document is, as its terms make plain, an introduction to, and a record of, certain “principles” agreed upon by the parties at a conference convened by the Tribunal following the seeking by the applicant of certain orders under the CI Act against the respondent.
The introductory part of the Document could not be, and was not, sought to be characterised as an agreement. The principles set out in the Document, by their terms, demonstrate that they were not intended to give rise to obligations enforceable against the parties. So much is, in my view, made clear by the terms in which the principles are expressed. Principle 3 provides a good example of the lack of certainty of the principles and thus of the impossibility of their giving rise to obligations enforceable under s 178 of the WR Act. For convenience I set it out again:
“Imposition is wrong and an unwillingness to accept that as demonstrated by repeated breaches must be addressed by education and counselling. If unsuccessful something more must be done.”
It is not in the circumstances necessary for me to determine whether the Document was filed in the Principle Registry or a District Registry under the Industrial Relations Act 1988 (Cth). Nor is it necessary for me to give detailed consideration to any material extrinsic to the Document. The circumstances surrounding the creation of the Document, which are briefly alluded to in the introductory words of the Document and which were expanded upon in evidence before me, do not, in my view, tend in favour of any conclusion other than that which I have reached (Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales (1982) 149 CLR 337 per Mason J at 348; Short v F.W. Hercus Pty Limited (1993) 40 FCR 511 per Burchett J at 520; Kucks v CSR Limited (1996) 66 IR 182 at 184).
The question whether the Document is an award within the meaning of ss 178 and 413 of the WR Act is answered, No.
As the decision of the question for separate decision substantially disposes of the proceeding as a whole, the proceeding is dismissed, pursuant to O 29 r 4. I will hear counsel on the question of costs.
I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson
Associate:
Dated: 17 December 1998
Counsel for the Applicant: Mr B. Docking Solicitor for the Applicant: Lisa Doust of Construction, Forestry, Mining and Energy Union Counsel for the Respondent: Dr C. Jessup QC and Mr M. McDonald Solicitor for the Respondent: Corrs Chambers Westgarth Date of Hearing: 14 October 1998 Date of Judgment: 17 December 1998
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