Curragh Queensland Mining Ltd v Construction, Forestry, Mining and Energy Union and Ors
[1997] FCA 1281
•25 NOVEMBER 1997
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW - interpretation of award - whether dispute hypothetical - whether variation to award a valid or bona fide exercise of arbitral power of Industrial Relations Commission - whether ‘members only’ or all employees award - principles relevant to interpretation - use of extrinsic material - “the last to come the first to go” clause - whether clause requires or permits employer to dismiss employee on prohibited ground of union membership and therefore invalid pursuant to s 298Y of the Workplace Relations Act 1996 (Cth)
Workplace Relations Act 1996 (Cth) - ss 111(1)(f), 113, 150(1), 298K, 298L and 298Y
Industrial Relations Act 1988 (Cth) - ss 111(1)(f) and 113
Re Rubber Plastic and Cable Making Industry Award (1960) 8 FLR 395 - applied
Sibte v Expandite (Aust) Pty Ltd (1988) 28 IR 53 - applied
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 - applied
Oil Basins Ltd v Commonwealth (1993) 178 CLR 643 - applied
Construction, Forestry, Mining and Energy Union v Mount Thorley Operations Pty Limited (Moore J, 30 October 1997, unreported) - considered
Re Finance Sector Union of Australia; Ex parte Financial Clinic (Vic) Pty Ltd (1993) 178 CLR 352 - applied
Re Media Entertainment and Arts Alliance; Ex parte Arnel (1994) 179 CLR 84 - applied
Bell v Gillen Motors Pty Ltd (1989) 27 IR 324 - considered
Short v F W Hercus Pty Ltd (1993) 40 FCR 511 - considered
CURRAGH QUEENSLAND MINING LIMITED v CONSTRUCTION, FORESTRY, MINING & ENERGY UNION & ORS
QG 66 OF 1997
MERKEL J
MELBOURNE (HEARD IN BRISBANE)
25 NOVEMBER 1997
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG 66 of 1997
BETWEEN:
CURRAGH QUEENSLAND MINING LIMITED
ApplicantAND:
CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
First RespondentAUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
Second RespondentCOMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
Third RespondentJUDGE:
MERKEL J
DATE OF ORDER:
25 NOVEMBER 1997
WHERE MADE:
MELBOURNE (HEARD IN BRISBANE)
THE COURT ORDERS THAT:
The application 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
QUEENSLAND DISTRICT REGISTRY
QG 66 of 1997
BETWEEN:
CURRAGH QUEENSLAND MINING LIMITED
ApplicantAND:
CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
First RespondentAUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
Second RespondentCOMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
Third Respondent
JUDGE:
MERKEL J
DATE:
25 NOVEMBER 1997
PLACE:
MELBOURNE (HEARD IN BRISBANE)
REASONS FOR JUDGMENT
INTRODUCTION
The applicant (“Curragh”) has applied to the Court for certain declaratory relief in respect of cl 24 of the Coal Mining Industry (Production and Engineering) Interim Consent Award, September 1990 (“the Award”).
Clause 24 provides:
“When a reduction of hands is decided upon by the employer it shall be regulated by the principle ‘the last to come the first to go’ in the respective classes of work according to length of service at the mine. Provided that if with regard to any mine an agreement is arrived at between the employer and the appropriate union, such agreement will bind such members notwithstanding that it may be inconsistent with the foregoing provisions of this clause.”
In substance, Curragh contends that, on its proper interpretation, cl 24:
applies to employees who are members of the three respondent employee organisations (“the unions”) and are engaged in one of the classes of work referred to in the clause;
does not apply to employees who are not members of one of the unions;
requires or permits an employer to dismiss an employee for reasons which include a prohibited reason, namely, that the employee is a member of an industrial association;
is therefore void pursuant to ss 298K, 298L and 298Y of the Workplace Relations Act 1996 (Cth) (“the Act”).
The unions have opposed the grant of the relief sought, substantially on the grounds that:
Curragh is seeking an advisory opinion and there is no justiciable controversy in respect of cl 24 before the Court;
the Award, but in particular cl 24, was binding on the employers, including Curragh, which were parties to it and covered all employees of those employers irrespective of whether they were members of the unions;
cl 24 does not require or permit dismissal of an employee for the reason that the employee is a member of an industrial association; rather, any dismissal of an employee does not arise under or by reason of the Award but arises as a result of an antecedent decision by the employer to dismiss certain persons who may or may not be members of one of the unions.
BACKGROUND
The Award was initially made under the Coal Industry Acts 1946 of the Commonwealth and New South Wales. Until 24 August 1995, cl 24 of the Award provided:
“4 - INCIDENCE AND APPLICATION
(a) Subject to sub-clause (b) hereof, this award shall come into operation as from the first pay period to commence on or after 17 September 1990 and shall remain in force until 9 April 1991 or until further order.
(b) …
(c) This award shall be binding upon:
(1)The employers in the States of New South Wales, Queensland and Tasmania named in Schedule “A” in respect of each and every member of the Construction Forestry Mining & Energy Union (UMW Division) (“the Federation”) employed by them in the industry in any of the classes of work or classifications set out in Schedule “B” and Schedule “C” or set out in an award in an industrial dispute to which the Construction Forestry Mining & Energy Union (FEDFA Division) is a party (Dispute No. 73 of 1981) and each and every member of the Automotive Metals & Engineering Union and the Electrical, Electronic, Plumbing & Allied Workers Union of Australia employed by them in the industry in any of the classes of work or classifications set out in Schedule “C”; and each and every member of the Construction Forestry Mining & Energy Union (FEDFA Division) employed by them in the industry in any of the classes of work or classification set out in Schedule “D”; and
(2)The Federation and its members; and
(3)The Automotive Metals & Engineering Union and its members; and
(4)The Electrical, Electronic, Plumbing & Allied Workers Union of Australia and its members; and
(5)The Construction Forestry Mining & Energy Union (FEDFA Division) and its members.”
On 29 June 1995, after a contested hearing before the Coal Industry Tribunal (“The Tribunal”) lasting over six hearing days during May and June 1995, the Tribunal determined to vary the Award on the application of the unions. The variations were sought by the unions as a consequence of the Commonwealth’s decision to bring to an end to what was described by the Commonwealth Minister as the “separate, specialised and insular industrial relations system” to which the coal industry is subject, by making the industry subject to the same industrial relations institutional arrangements that applied to other industries under the Industrial Relations Act 1988 (Cth). The unions submitted to the Tribunal that the variations were sought to “fill voids created by the changes” and “to assist in the smooth transfer of industrial relations from one set of institutional arrangements to another”. The employers disputed that interpretation of events.
The Tribunal, in a twenty-eight page decision in response to the union applications, granted some of the variations sought, refused others and made its own changes to the variations sought. The variation which is relevant to the present application was the amendment made to cl 4, which now, relevantly, provides:
“4 - INCIDENCE AND APPLICATION
(a) Subject to sub-clause (b) hereof, this award shall come into operation as from the first pay period to commence on or after 17 September 1990 and shall remain in force until 9 April 1991 or until further order.
(b) …
(c) This award applies to persons engaged in work performed in the coal mining industry in the States of New South Wales, Queensland and Tasmania and shall be binding upon:
(1) the employers listed in Schedule A of this award;
(2) the Construction, Forestry, Mining and Energy Union and its members employed in any of the classes of work or classifications set out in Schedules B, C or D of this award;
(3) the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and its members employed in any of the classes of work or classifications set out in Schedule of this award;
(4) the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and its members employed in the classes or work or classifications set out in Schedule C of this award.
......”
Apart from the deletion by the Tribunal of the words “or engaged” after “members employed” in sub-paras (2), (3) and (4) above, the clause, as varied, was substantially in the form submitted by the unions to the Tribunal and the subject of submission by the parties represented at the hearing.
The two major changes made to cl 4 were:
the addition of the provision that the “award applies to persons engaged in work performed in the coal mining industry in the States of New South Wales, Queensland and Tasmania”, and
the provision that the award shall be binding on the employers listed in Schedule A without the important qualification that it was binding only “in respect of each and every member” of the unions.
It was argued on behalf of Curragh that unwittingly, either by error or accident, the variations made by the Tribunal to cl 4 appear to have converted the Award from a “members only” award (ie, one in which the employers’ obligations are only in respect of or to members of the unions) to an “all employees” award (ie, one in which the employers’ obligations are in respect of or to all employees irrespective of whether those employees are members of the unions). Although senior counsel for Curragh was reluctant to concede that that conversion had occurred, subject to his arguments in relation to the use of extrinsic material in interpreting the clause, I have no doubt that it did operate to change the Award from a “members only” award to an “all employees” award.
The formal variation to cl 4 of the Award was made under ss 111(1)(f) and 113 of the Industrial Relations Act 1988 (Cth) on 24 August 1995 by the Industrial Relations Commission (“the IRC”), which had assumed the functions of the Tribunal. The Award is now governed by the Act, which includes substantially the same power to vary awards: see ss 111(1)(f) and 113.
In February 1997, Curragh announced that it was undergoing a restructure of its operations which would involve a significant reduction of employees covered by the Award. As a consequence of the announcement, a number of meetings were held between representatives of Curragh and the unions in relation to the proposed redundancies. It is sufficient for present purposes to say that in the course of the meetings the operation of cl 24 arose as an issue between the parties. In particular, Curragh contended that cl 24 only applied to union members and was void whilst the unions contended that it was valid, binding and extended to all employees. Although there was some dispute as to the overall importance attached by Curragh and the unions to cl 24, the differences of opinion as to its operation led to Curragh making application to the Court for the relief it is now seeking.
IS THERE A JUSTICIABLE CONTROVERSY?
Section 413(1) of the Act provides that the Court may give an interpretation of an award on application by an organisation bound by the award. The Court has exercised that jurisdiction when there is an actual, as distinct from a hypothetical, question or dispute to be decided: see Re Rubber Plastic and Cable Making Industry Award (1960) 8 FLR 395 at 397 and Sibte v Expandite (Australia) Pty Ltd (1988) 28 IR 53 at 56. In my view, it is abundantly clear that there is a genuine controversy between Curragh and the unions in relation to the operation of cl 24 of the Award and that the declaratory relief sought, if granted, will produce foreseeable consequences for the parties: see Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582, 595-597; Oil Basins Ltd v The Commonwealthof Australia (1993) 178 CLR 643 at 648-650 and Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322 at 349-351.
Accordingly, I am satisfied that there is a “matter”, being a justiciable controversy, before the Court and that it is appropriate to exercise the Court’s discretion to grant the declaratory relief sought if the grounds for it are made out.
INTERPRETATION OF THE AWARD PRIOR TO ITS VARIATION
In the recent decision in Construction, Forestry, Mining and Energy Union v Mount Thorley Operations Pty Limited (Moore J, 30 October 1997, unreported) at 18-25, cl 24 of the Award was interpreted by the Court, although not in relation to the issue of coverage which has arisen on the present application. Moore J concluded, at 20, that:
“… cl 24 is directed to the manner in which a reduction in hands is to be ‘regulated’. In my opinion, it is intended to operate only in circumstances where a decision to reduce hands ultimately results in the retrenchment of employees. It is unlikely that the principle of ‘the last to come the first to go’ could have any sensible application when an employer might decide to reduce hands and might decide to give effect to that decision by calling for employees to volunteer to leave their employment. The employees may be invited to leave on terms involving the payment of a sum equivalent to the sums they would be paid if they were retrenched. The word ‘regulated’ implies, in my opinion, a regime that the employer must give effect to in certain circumstances.”
I agree. Clause 24 only operates when a decision to retrench employees is carried into effect. At that time the clause requires that the retrenchment be regulated by the seniority principle set out in the clause. However, it is not apt to say that the clause requires the dismissal of any employees. Rather, it prevents the employer from “reducing hands” by dismissing employees without complying with the seniority principle.
Mount Thorley does not resolve the issues now raised in relation to the coverage of the Award under cl 4. Prior to the variation made on 24 August 1995, the Award was a “members only” award. That conclusion arises from the terms of cl 4 which provided for the Award to be “binding upon” certain employers “in respect of each and every member” of the unions employed in the coal industry in the specified classes of work or classifications.
It is common ground that the union logs of claims giving rise to the Award made claims in respect of all employees irrespective of whether they were union members. It is well established that a union can make demands on employers with respect to wages and conditions of members and non-members alike. As was said in Re Finance Sector Union of Australia; Ex parte Financial Clinic (Vic) Pty Ltd (1993) 178 CLR 352 at 360 by Mason CJ, Deane, Toohey and Gaudron JJ:
“And since the Metal Trades Case, awards have regularly been made in settlement of claims … in terms which bind employers in respect of all employees, whether or not members of the union party to the award in question.”
And at 361-362:
“It is well settled that a trade union claims on behalf of its members, both present and future. But it does not claim on behalf of persons who are not and never become its members. The consequences of this are well established. Because they are not parties to the antecedent dispute, an award made in settlement of the claim does not, of itself, impose duties or confer rights on non-members; it only creates legal relations between the persons who are parties to the dispute and to the award. Thus, non-members are neither parties to nor bound by an award, even if it is expressed, as in this case, to bind the union and employers in respect of employees, whether or not members of the union concerned.” (footnotes omitted)
At 377, Brennan, Dawson and McHugh JJ said:
“Although an award may require an employer to extend the benefits of the award obtained by a union to employees who are not members of the union, it cannot impose obligations upon those employees themselves because they are not parties to the relevant dispute.”
In discussing the nature of the rights of an employee who is not a member of a union or a party to the industrial dispute, Mason CJ and Brennan, Dawson and Gaudron JJ said in Re Media, Entertainment and Arts Alliance; Ex parte Arnel (1994) 179 CLR 84 at 92:
“The award which the Full Bench decided to make was an award in settlement of disputes between the Hoyts companies and the Unions. As such, it could not impose obligations on employees who, like the applicants, were members of neither Union. The rights they will acquire, if the award is made, namely, the right to bring enforcement proceedings and to recover moneys payable will not derive from the award, but from the Act. They are not award rights, but statutory rights conferred in consequence of the making of an award which applies to the terms and conditions of persons who are not members of the union bound by it.” (footnotes omitted)
Applying these principles to cl 4 prior to 24 August 1995, it appears that the Award was intended to bind the unions, their members and the specified employers in respect of members of the unions. To that extent, the Award is fairly described, and was treated by the parties to it, as a “members only” award.
It was conceded by senior counsel for Curragh that there was ambit in the industrial dispute for the Award to be converted to an “all employees” award. Apart from cl 4, most of the substantive provisions of the Award, on their face, applied to employees generally rather than just members of the unions. For example, cl 22(2) of the Award provides for preference to members of the unions and specifically obliges the employers not to continue the employment of a person who is not a member of the unions unless the employee makes application to join the union.
It is necessary to reconcile such provisions, which impose an obligation on the employers in respect of employees who are not union members, with cl 4. That clause was intended to provide for incidence, application and coverage of the Award with the consequence that, in general, the Award only bound and therefore imposed obligations on the employers in respect of or to employees who were members of the unions. I say “in general” as the terms of particular provisions of the Award may create specific obligations in respect of employees who are not union members. Those provisions ought to be given effect in accordance with their terms and purpose to the extent that it is possible to do so consistently with cl 4. Returning to cl 22(2); rather than say that it is unenforceable as was contended on behalf of Curragh, subject to any current statutory prohibition on such clauses, there is no reason why it should not be enforceable against the employers by the unions or their members according to its terms. The clause was for their benefit and can be reconciled with cl 4 on the basis that cl 22(2) is binding on the employers according to its terms notwithstanding that it relates to persons who are not members. It is not inconsistent with cl 4 (prior to its amendment) to conclude that the employers had an obligation to the unions and members under cl 22(2) to dismiss an employee who fails to join the union as required by the clause.
A similar view can be taken of cl 24. There is nothing in the operative part of the clause that suggests that it is intended only to apply to the dismissal of union members. To the contrary, as already pointed out, the clause operates when “a reduction of hands is decided upon” and carried into effect. Further, the “last to come first to go” principle does not operate in relation to union members or employees generally; rather it only operates in respect of employees “in the respective classes of work according to length of service at the mine”. Given the requirements for preference and union membership in cl 22, one would expect that longer term employees were or would be likely to be union members. It would be an anomalous outcome if the clause gave those members no seniority protection against more recent employees who may not be union members.
Although the Award was a “members only” award prior to 24 August 1995, it does not follow that, under particular clauses, such as cl 22(2) and cl 24, the subject matter of an obligation to union members may not require certain conduct on the part of the employer in relation to employees who are not union members. In the end it is a question of the proper construction of the particular clause in the context of the Award as a whole.
In my view, cl 4 in its unamended form operated, in general, to ensure that no obligation was owed by the employers to non union members under the Award. But cl 4 operated to create obligations by the employers to union members and the unions under cl 24. In my view, the union and its members but not employees who are not members, were entitled to enforce and have the seniority principle applied to a “reduction of hands” in accordance with cl 24. My construction reconciles and gives effect to cl 24 and cl 4; the obligation owed by the employer under cl 24 was to each and every member of the unions, but not to non-members. In that way the Award is binding on the employer under cl 4 in respect of each and every member of the unions.
For these reasons I am satisfied that, prior to 24 August 1995, cl 24 was not restricted in its operation to the dismissal of union members. It is not contended by senior counsel for Curragh that anything that occurred after that date could have produced that result. Accordingly, on that ground alone, even if the variation to cl 4 is disregarded, the application for the relief sought by Curragh must fail.
INTERPRETATION OF THE AWARD AFTER ITS VARIATION
As the interpretation sought is in respect of the Award in its current form, it is necessary to consider the variations to cl 4 that occurred on 24 August 1995. In my view the variations clearly and unambiguously extended coverage of the Award to non-members, thereby converting the Award to an “all employees” award. That conclusion is inescapable as the varied Award:
expressly applied “to persons engaged in work performed in the coal mining industry in the States of New South Wales, Queensland and Tasmania”;
was “binding upon” the employers listed in the schedule;
was binding on the unions and their members;
was no longer binding on employers only in respect of members of the unions.
The extension of coverage under the Award to all employees, whether union members or not, required no substantive amendment to other provisions of the Award as those provisions were, in general, already expressed to relate to all employees.
On the limited material before me, there was nothing in relation to the ambit of the industrial dispute, the changes in wording to cl 4, the occasion for the amendments, the circumstances of employment in any of the relevant workplaces or the reasons put forward by the unions for the changes that suggested anything exceptional or unusual about the extension of coverage brought about by cl 4.
Thus, even if I was wrong in my interpretation of cl 24 as it operated prior to 24 August 1995, there can be little doubt that it operated in conjunction with cl 4 after 24 August 1995 to bind the employers in respect of all employees and not only in respect of members of the unions.
Clause 4 was not put forward as part of an agreed variation. The initial draft of cl 4, extending coverage, was placed before the Tribunal by the unions, was the subject of submissions by interested parties and was the subject of a specific determination by the Tribunal.
However, senior counsel for Curragh strongly contended that the extrinsic material, particularly the transcript of certain hearings before the Tribunal, both before and after the variation, and the reasons of the Tribunal for its decision to grant the variation, demonstrated that the employers, the unions and the Tribunal:
did not intend that the variation would operate to extend coverage beyond a “members only” award; and
believed that no such extension of coverage had occurred.
Putting aside for the moment Curragh’s entitlement to rely on that material, there can be little doubt that the transcript relied upon discloses considerable confusion on the part of the employer and union representatives as to the distinction between an award being binding on an employer in respect of union members and the award imposing obligations on an employer in respect of employees who are not members of the unions. Further, the transcript does not suggest that the unions or the employers were fully appreciative or cognisant of the fact that the proposed variation to cl 4 extended coverage of the Award to non-members. On the other hand, the passages relied upon by senior counsel for Curragh did not go so far as to reveal that the employer or union representatives, but more importantly the Tribunal, intended that the changes to cl 4 were not to operate to extend coverage to all employees. The lack of concern about, or discussion as to, that issue is equally consistent with the conclusion that in the circumstances, and in particular with the transition to the general jurisdiction of the IRC and a new legislative regime, it was of little or no concern to the parties or the Tribunal that Award coverage was to extend to all employees. Nothing in the material before the Court suggests that such an extension would raise any particular practical concerns or problems at the time for the employers or the unions.
It is well established that extrinsic material may not be used to interpret an award in a manner which contradicts its plain meaning: see, for example, Bell v Gillen Motors Pty Ltd (1989) 27 IR 324 at 330-331 per Wilcox J. I am satisfied that the terms of cl 4 and its operation in relation to cl 24 are clear and unambiguous. In those circumstances I doubt that it is permissible to rely on the extrinsic material as is sought by Curragh.
In any event, even if it were permissible to examine the transcripts relied upon or the reasons for decision, I do not accept that the comments of the parties’ representatives or the Tribunal, or their failure to address expressly the substantive changes to cl 4 in relation to coverage, permit me to interpret the clause to give it a meaning it does not have, namely to read it down to a “members only” clause.
Curragh relied upon a passage in the decision of the Tribunal suggesting that the principle to be adopted was that the scope of cl 4 should not extend the present position. It was submitted that nothing in the decision disclosed an intention to extend coverage. I am far from satisfied that the particular passage relied upon was a statement of principle by the Tribunal as distinct from an endeavour to summarise the submissions put on behalf of the employers. Whilst it is true that there was little or no discussion about an extension of coverage, that is equally consistent with the fact that no party opposed the variation extending coverage. Accordingly, it is not surprising that the Tribunal did not consider that issue to be one of significance in its decision. In any event, the Tribunal did state that the effect of the amendment was “to introduce a scope to the award” by it applying to “persons engaged in work performed in the coal mining industry”. Given the looseness of language used by all concerned on issues of scope and coverage, I do not consider that the reasons given for the decision of the Tribunal carry the matter any further even if I accepted that it was permissible to have regard to them.
There may be some limited use of extrinsic material in the process of interpreting an award including deciding whether the terms are clear and unambiguous. In general it is legitimate, for the purpose of construing a clause in an award, to look at the history of the provision: see Short v F W Hercus Pty Ltd (1993) 40 FCR 511 at 517-518. It is also legitimate to have regard to the context in which the award was made: see Short at 517-520, 523. As was said by Isaacs J, citing Lord Halsbury LC, in Australian Agricultural Company Ltd v Federated Engine-Drivers and Firemen’s Association of Australasia (1913) 17 CLR 261 at 272:
“The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it.”
However, even taking a broad view of such matters is not helpful to Curragh’s case. The history of cl 4 discloses that the variation to it made on 24 August 1995 was substantive and not a matter of mere form. The context in which the variation was sought, being the transition from a separate and specialised tribunal system to the general industrial relations system and the unions’ desire to “fill voids created by the changes” and to assist in the smooth transfer from one system to the other, does not suggest that the variations were to be limited to matters of form rather than substance.
There is a fundamental difficulty with the approach contended for by Curragh. In substance, it is asking the Court to examine extrinsic material to demonstrate that the variation to cl 4 arose by accident, error or inadvertence. Although I am not satisfied that that occurred, even if it had, the appropriate course is for Curragh to seek to return to the IRC and apply for a rectifying variation to the Award under ss 111(1)(f) and 113 of the Industrial Relations Act (1988) rather than to apply to the Court to construe the transcript and reasons for decision to contradict a clear and unambiguous provision of the Award.
For the above reasons, I am of the view that on its proper interpretation, the Award is binding on the employers in respect of all employees engaged by them to perform work in the coal mining industry in New South Wales, Queensland and Tasmania and the obligations of Curragh under it extend, as from 24 August 1995, to all of its employees falling into that category, whether members of the unions or not.
SECTION 150 OF THE WORKPLACE RELATIONS ACT 1996 (CTH)
The final submission of Curragh was that the variation extending coverage was not a valid or bona fide exercise by the Tribunal or of the IRC of arbitral power and accordingly, the variation is invalid.
Section 150(1) of the Act provides:
“(1)Subject to this Act, an award (including an award made on appeal):
(a)is final and conclusive;
(b)shall not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c)is not subject to prohibition, mandamus or injunction in any court on any account.
(2)An award is not invalid because it was made by the Commission constituted otherwise than as provided by this Act.”
However, senior counsel for Curragh submitted that the Award is not protected by s 150 as:
it was not made as part of the arbitral process or by the Tribunal or the IRC acting judicially as each is required to do under the relevant legislation: see Re Australian Railways Union; Ex parte Public Transport Corporation (1993) 117 ALR 17 at 25;
the Tribunal’s decision was not a bona fide attempt to exercise the arbitral power: see O’Toole v Charles David Pty Ltd (1991) 171 CLR 232, 249, 275, 305.
Curragh’s submissions basically rely on the same factual allegation, namely, that the Tribunal’s decision to vary cl 4 was an accidental or unintentional, rather than an intentional, exercise of power by the Tribunal. I do not accept that that is correct. As outlined earlier:
the proposed form of the variation was placed before the Tribunal by the unions and was the subject of submissions and a specific determination by the Tribunal;
the Tribunal, in its decision, varied the proposed form of the variation in response to the submissions put to it by the parties;
the failure of the Tribunal to deal in any detail with the extension of coverage in its reasons is explicable on the basis that no submissions were put to it on that issue or in opposition to that aspect of the proposed variation; and
the Tribunal did refer to the variation of the “scope” of the Award to all employees in its reasons.
I am therefore not satisfied that the variation was made as a result of error, accident or inadvertence.
In the circumstances, there is simply no factual basis for the submission that the variation is invalid or that s 150 does not protect the validity of the Award.
IS CL 24 INVALID BY REASON OF s 298Y OF THE WORKPLACE RELATIONS ACT 1966 (CTH)?
In the light of my conclusion that the obligation imposed on the employers under cl 24 was not restricted to union members both before and after 24 August 1995, there is no basis for contending that the clause is discriminatory against union members. However, as this matter was fully argued, it seems desirable that I briefly express my views in relation to it.
Sections 298K and 298L, inter alia, prohibit an employer from dismissing an employee for a reason that includes the reason that the employee is a member of an industrial association.
Section 298Y provides:
“A provision of an industrial instrument, or an agreement or arrangement (whether written or unwritten), is void to the extent that it requires or permits, or has the effect of requiring or permitting, any conduct that would contravene this Part.”
On the basis that cl 24 only applies to the dismissal of union members, Curragh submits that cl 24 requires or permits that it take into account union membership when dismissing an employee who is a union member with the consequence that that becomes a reason for the dismissal in contravention of ss 298K and 298L.
If, contrary to my view, cl 24 operated only in respect of union members, I do not accept that it would attract the operation of s 298Y.
Clause 24 has two aspects. The first is the decision to retrench staff ie, reduce hands. Before one arrives at the regulation provided for in cl 24, there must be a decision to retrench certain staff at least one of whom is a union member (“the antecedent decision”). On the interpretation contended for by Curragh, it has a discretion to decide to retrench employees irrespective of whether they are union members. Accordingly, nothing in cl 24 requires or permits dismissal, in the antecedent decision, of an employee for the reason that he or she is a member of a union. If, as a result of the antecedent decision, one or more persons who are selected for retrenchment are union members, then the dismissal of the members is regulated by cl 24, which requires that a member can only be dismissed in accordance with the “last to come first to go” principle. If that principle operates to prevent the dismissal by the employer of a particular member as there is a more recently employed member, then the more senior member cannot be dismissed. However, it does not follow that the most recently employed member must be dismissed. That person will only be dismissed if there is an antecedent decision to dismiss that member and the member’s dismissal does not contravene the “last to come first to go” principle.
Accordingly, nothing in cl 24 requires or permits a contravention of ss 298K and 298L. To the contrary, if there is such a contravention, it will have come about as a result of the antecedent decision made before the requirements of cl 24 have operative effect. Any member dismissed by reason of cl 24 will have been dismissed by reason of that person having been selected as a person to be retrenched in the operative antecedent decision and by reason of that person being the most recently employed union member in the particular class of work. That person’s dismissal will not have been for the reason that he or she is a union member. As cl 24 operates as a consequence of the antecedent decision, nothing in the clause requires or permits a person to be dismissed for a reason that includes the reason that the person is a union member.
CONCLUSION
For these reasons the application of Curragh to the Court for declaratory relief is to be dismissed.
I certify that this and the preceding sixteen (16) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.
Associate:
Dated: 25 November 1997
Counsel for the Applicant: Mr RJ Buchanan QC with
Mr GC MartinSolicitors for the Applicant: Clayton Utz Counsel for the Respondents: Mr S Crawshaw Solicitors for the Respondent: Nall Payne Dates of Hearing: 10 and 11 November 1997 Date of Judgment: 25 November 1997
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