Food Preservers Union of Western Australia, Union of Workers v The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers, Western Australian Branch
[2001] WASCA 136
•27 APRIL 2001
FOOD PRESERVERS UNION OF WESTERN AUSTRALIA, UNION OF WORKERS -v- THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION OF WORKERS, WESTERN AUSTRALIAN BRANCH & ANOR [2001] WASCA 136
| (2001) 24 WAR 89 | |||
| WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT | Citation No: | [2001] WASCA 136 | |
| Case No: | IAC:7/2000 | 1 FEBRUARY 2001 | |
| Coram: | KENNEDY J (Presiding Judge) SCOTT J PARKER J | 27/04/01 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed as being incompetent | ||
| PDF Version |
| Parties: | FOOD PRESERVERS UNION OF WESTERN AUSTRALIA, UNION OF WORKERS THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION OF WORKERS, WESTERN AUSTRALIAN BRANCH INGHAMS ENTERPRISES PTY LTD |
Catchwords: | Industrial law Appeal from Full Bench of the Industrial Relations Commission to the Industrial Appeal Court Appellant ordering that respondent had the right, to the exclusion of the proposed appellant, to represent under the Act the industrial interests of employees of a company Proposed appellant given leave by the Full Bench to be heard Proposed appellant neither a party to the proceedings before the Full Bench nor an intervener Appeal incompetent |
Legislation: | Industrial Relations Act 1979, s 72A, s 90(2) |
Case References: | Burswood Resort (Management) Ltd v Australian Liquor Hospitality and Miscellaneous Workers' Union, Miscellaneous Workers' Division, unreported; FCt SCt of WA; Library No 940280; 2 June 1994 Hospital Salaried Officers Association of Western Australia (Union of Workers) v Civil Service Association of Western Australia (Inc) (1996) 76 WAIG 1673 In re Sharkey; Ex parte Burswood Resort (Management) Ltd (1994) 55 IR 276 Re Federated Miscellaneous Workers Union of Australia WA Branch (1993) 49 IR 262 The Australian Bank Employees Union v Federated Clerks' Union of Australia Industrial Union of Workers, WA Branch (1990) 70 WAIG 2086 Re Western Australian Industrial Relations Commission; Ex parte Confederation of Western Australian Industry (Inc) (1992) 6 WAR 555 |
JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT CITATION : FOOD PRESERVERS UNION OF WESTERN AUSTRALIA, UNION OF WORKERS -v- THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION OF WORKERS, WESTERN AUSTRALIAN BRANCH & ANOR [2001] WASCA 136 CORAM : KENNEDY J (Presiding Judge)
- SCOTT J
PARKER J
- Appellant
AND
THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION OF WORKERS, WESTERN AUSTRALIAN BRANCH
First Respondent
INGHAMS ENTERPRISES PTY LTD
Second Respondent
(Page 2)
Catchwords:
Industrial law - Appeal from Full Bench of the Industrial Relations Commission to the Industrial Appeal Court - Appellant ordering that respondent had the right, to the exclusion of the proposed appellant, to represent under the Act the industrial interests of employees of a company - Proposed appellant given leave by the Full Bench to be heard - Proposed appellant neither a party to the proceedings before the Full Bench nor an intervener - Appeal incompetent
Legislation:
Industrial Relations Act 1979, s 72A, s 90(2)
Result:
Appeal dismissed as being incompetent
Representation:
Counsel:
Appellant : Mr M L Barker QC & Mr M D Cuerden
First Respondent : Mr D H Schapper
Second Respondent : No appearance
Solicitors:
Appellant : Hammond Worthington
First Respondent : Mr D H Schapper
Second Respondent : No appearance
Case(s) referred to in judgment(s):
Burswood Resort (Management) Ltd v Australian Liquor Hospitality and Miscellaneous Workers' Union, Miscellaneous Workers' Division, unreported; FCt SCt of WA; Library No 940280; 2 June 1994
Hospital Salaried Officers Association of Western Australia (Union of Workers) v Civil Service Association of Western Australia (Inc) (1996) 76 WAIG 1673
In re Sharkey; Ex parte Burswood Resort (Management) Ltd (1994) 55 IR 276
Re Federated Miscellaneous Workers Union of Australia WA Branch (1993) 49 IR 262
(Page 3)
The Australian Bank Employees Union v Federated Clerks' Union of Australia Industrial Union of Workers, WA Branch (1990) 70 WAIG 2086
Case(s) also cited:
Re Western Australian Industrial Relations Commission; Ex parte Confederation of Western Australian Industry (Inc) (1992) 6 WAR 555
(Page 4)
1 JUDGMENT OF THE COURT: By a notice of application dated 5 January 2000, the first respondent, pursuant to s 72A(2) of the Industrial Relations Act 1979, applied to the Full Bench of the Western Australian Industrial Relations Commission for an order that it should have the right to represent under the Act the industrial interests of all those persons employed by the second respondent at Osborne Park, or at such other location as the undertaking at Osborne Park may subsequently be carried out, and that the appellant should not have the right to represent under the Act the industrial interests of any of those persons. The appellant at that time had the right to represent all those persons. In accordance with the provisions of s 72A(3) of the Act, the first respondent's application was duly published in the Industrial Gazette.
2 At the commencement of the hearing of the application before the Full Bench, the appellant sought, and was granted, the right to be heard under s 72A(5) of the Act, which provides that the Full Bench shall not make any order described in subsection (2) without giving persons who, in the opinion of the Full Bench, have a sufficient interest in the matter an opportunity of being heard.
3 On 14 September 2000, the Full Bench found in favour of the first respondent and granted its application. On 26 September 2000, the appellant filed a notice of appeal. When the appeal came on for hearing in this Court, a preliminary issue was raised as to the competency of the appeal.
4 Section 90(2) of the Act provides that an appeal to this Court may be instituted:
"(a) by any party to the proceedings wherein the decision was made; or
(b) by any other person who was an intervener in those proceedings."
5 By s 29B of the Act, subject to s 27(1)(j), the parties to proceedings before the Commission shall be:
"(a) the claimant or applicant by whom or which the proceedings were initiated; and
(b) the other persons, bodies, organisations or associations upon whom or which a copy of the claim or application is served."
(Page 5)
6 Service of the application, we were informed from the Bar table, was not effected upon the appellant. There was no obligation upon the first respondent to do so.
7 Section 27(1)(j) empowers the Commission to direct parties to be struck out or persons to be joined. Having regard to the very real interest of the appellant in the proceedings before the Full Bench, on the face of it, it would have been appropriate for the appellant to have sought to be joined as a party. However, no application for that purpose was made to the Full Bench, possibly for the reason that the Full Bench has previously expressed the view that, if a person has a right to apply to be heard, that person may not be permitted to intervene or, presumably, to be joined as a party. This is an issue to which we return.
8 By s 27(1)(k) of the Act, the Commission is empowered to permit the intervention, on such terms as it thinks fit, of any person who, in the opinion of the Commission, has a sufficient interest in the matter. No application was made by the appellant for permission to intervene.
9 The Act draws a clear distinction between an intervener and a person permitted to be heard. Thus, s 31(1), dealing with the representation of persons in proceedings before the Commission, distinguishes between a person or body permitted by the Commission to intervene, and a person or body permitted by the Commission to be heard in proceedings before the Commission.
10 Section 27(1)(k) empowers the Commission to permit the intervention on such terms as it thinks fit, of any person who, in the opinion of the Commission, has a sufficient interest in the matter before it.
11 Section 30 empowers the Commission to permit State and Commonwealth Ministers, by leave, to intervene in proceedings before the Commission in which the State or Commonwealth has an interest. On the other hand, a number of other provisions in the Act empower the Commission to allow persons with a sufficient interest in the matter before it an opportunity to be heard in relation thereto - see s 51(10) in relation to the making of General Orders, s 55(2)(c) in relation to persons objecting to the registration of an organisation under s 53 or s 54 and s 97F(2)(b), which requires the Commission, subject to subsection (1), and in the circumstances set out therein, to order a pre-strike ballot to be held if it is satisfied that the parties who have a sufficient interest in the matter have been given an opportunity to be heard.
(Page 6)
12 Section 35 of the Act provides that the "parties concerned in a decision" shall be entitled to speak to matters contained in the minutes of the decision, and the Commission may, after hearing the parties, vary the terms of the minutes before they are delivered as the decision of the Commission. It is sufficiently clear from subsections (3) and (4) that the parties referred to in subsection (1) are parties within the normal meaning of that term and not interveners or those persons who have been granted leave to be heard. See The Australian Bank Employees Union v Federated Clerks' Union of Australia Industrial Union of Workers, WA Branch (1990) 70 WAIG 2086, at 2091.
13 In our opinion, the conclusion is inescapable that the appellant, being neither a party to the proceedings below, nor having been permitted to intervene in those proceedings, has no right of appeal under s 90 of the Act. The fact that it was granted the right to be heard before the Full Court cannot lead to its being characterised as either a party or an intervener. In our opinion, the appeal is incompetent and must be dismissed.
14 During the course of the hearing before this Court, there was some discussion of a difference of opinion which has emerged between the Full Bench on the one hand and a number of Judges of the Supreme Court who have been considering claims for prerogative relief in respect of decisions of the Commission on the other. We consider it desirable that we should draw attention to this matter.
15 In Re Federated Miscellaneous Workers Union of Australia WA Branch (1993) 49 IR 262, the Full Bench, in dealing with an application for leave to intervene, said at 268 - 269:
"There is an adequate provision in the Act for a person who is permitted to object to participate in proceedings. A person is given leave to intervene only if that person cannot otherwise participate in proceedings in the Commission.
In this case, too, the general power to permit intervention cannot be exercised to do that which is already conferred upon the Commission by the special power to allow a person to appear and object (see Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7 and see Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 24 ALR 513)."
(Page 7)
- It took the view that, if a person satisfies the Commission that it has sufficient interest to appear and be heard as an objector, there is an implied restriction upon the Commission's power to give that person leave to intervene.
16 Following that decision, in In re Sharkey; Ex parte Burswood Resort (Management) Ltd (1994) 55 IR 276, Ipp J, in the Supreme Court of Western Australia, considered, albeit obiter, a number of the provisions of the Act to which we have referred. In that case, the Full Bench had held that a person could not object under s 55(2)(c) of the Act and be given leave to intervene under s 27(1)(k), and that this was so even though they held that there was no difference in the test for determining the interest required for a person to be allowed to intervene and that required for a person to be allowed to object. The learned President had remarked:
"There is an adequate provision in the Act for a person who is permitted to object to participate in proceedings. A person is given leave to intervene only if that person cannot otherwise participate in proceedings in the Commission."
- He had gone on to say that an objector is a person who, under the Act is given the express right of objecting. Once a person has been accorded that right, that person cannot be given the right to intervene. Ipp J expressed strong doubts as to the correctness of that view. At 284, he said:
"Having regard to the potential importance to industrial relations generally of a decision to allow the registration of a competing Union, it would be very odd if the legislature intended that a person aggrieved by such a decision would have no right of appeal to the Industrial Appeal Court under s 90. After all, decisions of potentially far less importance are susceptible to appeal."
18 In Burswood Resort (Management) Ltd v Australian Liquor Hospitality and Miscellaneous Workers' Union, Miscellaneous Workers'
(Page 8)
- Division, unreported; FCt SCt of WA; Library No 940280; 2 June 1994, the Full Court of the Supreme Court was concerned with an application to alter the rules of the respondent Union, the effect of which would be to make eligible for membership workers at Burswood Casino who were then members of another Union. The respondent was given leave to intervene in the matter before the Full Court in an application for certiorari and mandamus. It was common ground in that case that there was no right of appeal by an objector to an order of the Full Bench of the Commission, the right of appeal conferred by s 90 of the Act being accepted as being limited to parties and interveners and as not extending to objectors. At 8, Anderson J said:
"In my opinion it is beside the point that the applicant might have been accorded intervener status and therefore might have obtained a right of appeal. The applicant was not accorded intervener status but objector status only and consequently has no right of appeal. The privative clauses are not to be construed so as to oust the jurisdiction of this Court to grant prerogative relief against excesses of jurisdiction in cases where persons aggrieved by an excess of jurisdiction have no other remedy. The applicant is in that category and ought not to be denied prerogative relief simply because events might have taken a different course at an earlier stage of the proceedings."
20 It is apparent that a situation has developed which leaves interested persons and the Commission unclear as to the courses which are open before the Commission where a person who seeks to intervene in or to be joined as a party to proceedings might also be heard pursuant to s 72A(5) or one of the other provisions of the Act to which we have referred. If the view expressed by the President is correct it will have the effect of greatly limiting the right to appeal to this Court under s 90. A further consequence is that such persons may be forced to incur the additional expense of taking proceedings by way of prerogative writ, rather than the
(Page 9)
- less complex and quicker procedure for appeals to this Court, to protect their interests.
21 The apparent difficulty may well be overcome by further consideration to the statutory provisions. As the situation is likely to recur we set out briefly another view of the effect of the statutory provisions which appears well open, if not preferable, and which may commend itself to the Commission should the issue be formally raised in other proceedings.
22 This situation seems to have developed primarily because of the introductory words to s 27(1) of the Act. Section 27(1) is a most important provision for the proper functioning of the Commission. In the absence of a very clear contrary legislative intention there would appear to be good reason against adopting an interpretation which limits the powers of the Commission for which it provides. Relevantly s 27(1) provides:
"(1) Except as otherwise provided in this Act, the Commision may, in relation to any matter before it -
…
(j) direct parties to be struck out or persons to be joined;
(k) permit the intervention, on such terms as it thinks fit, of any person who, in the opinion of the Commission has a sufficient interest in the matter;
…"
23 Provisions such as s 72A(5) have been understood as making other provision within the sense of the opening words of s 27(1) viz "Except as otherwise provided in this Act", with the consequence that in a number of cases the Commission has felt unable to exercise its powers to enable a person to be joined as a party or to intervene where s 72A(5) or one of the other provisions applies. There would appear to be good reason, however, to question whether s 72A(5), or the other provisions, make other provision within the sense of the opening words of s 27(1), or to imply from a provision such as s 72A(5) that the Parliament thereby intended to inhibit the important general powers of the Commission conferred by s 27(1).
(Page 10)
24 Section 72A(5) and the other provisions to which we have referred may be well understood to be intended merely to ensure that in the specific cases to which they apply, an order is not made by the Commission until persons with a sufficient interest have had an opportunity to be heard. On this view these provisions may be seen as an attempt to ensure that, in those cases dealt with in these provisions which are potentially of considerable industrial significance, a party with a sufficient interest has a right to be heard and to do so without the formality and ongoing consequences of becoming a party to proceedings or intervening. If that be correct, there would appear to be no adequate reason to conclude by way of implication that the legislature intended by s 72A(5), or the other provisions to which we have referred, to make an entirely exclusive and exhaustive provision governing the right of audience of persons interested, one which cuts across and denies the ordinary and important powers of the Commission under s 27(1) to regulate its proceedings. Section 31(1) is consistent with this view.
25 The contrary view has drawn, it seems, on the decisions in Anthony Horden & Sons Ltd v Amalgamated Clothing & Allied Trade Union of Australia (1932) 47 CLR 1 at 7 and Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 24 ALR 513; see Re Federated Miscellaneous Workers Union of Australia WA Branch (1993) IR 262 at 268 - 269. Anthony Horden & Sons Ltd was concerned with the power of the Commonwealth Court of Conciliation and Arbitration to grant preference to unionists. While the Court was armed with wide general powers to hear and determine industrial disputes under s 24(2) and s 38(a) of the Commonwealth Conciliation and Arbitration Act 1904-1930, there was an express provision in s 40 conferring a power to grant preference to unionists. As Gavan Duffy CJ and Dixon J said at 7:
"The order deals with preference of members of an organisation over other persons in employment, and over that subject a limited and qualified power is specifically given by sec 40. Extensive and unfettered as the authority of the Court of Conciliation and Arbitration to award preference in settlement of a dispute might have been in virtue of its general power, yet, when sec 40 expressly gives a special power, subject to limitations and qualifications, surely it must be understood to mean that the Court shall not exercise an unqualified power to do the same thing."
26 Anthony Horden Ltd is generally accepted as confirming the principle of interpretation that when a statute confers both a wide general
(Page 11)
- power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power. In Anthony Horden Ltd the power in question was a power to grant preference to unionists. The limitations and qualifications provided by s 40 were as to the substance of the order that might be made and the industrial situations in which preference might be ordered. It is apparent, however, that neither s 40 nor the reasoning of the High Court was concerned with matters of a procedural nature. Section 40, by rather clear implication, was seen as indicating a legislative intention to limit the power of the Court to make a preference order to orders in the terms and in the industrial situations dealt with in s 40, despite what might otherwise have been thought to be the ambit of the general power. Section 72A(5) may well be contrasted with s 40. Like the other provisions in the Act we have mentioned, s 72A(5) does not limit or qualify the terms or the industrial circumstances in which an order can be made. Section 72A(5) merely requires, as a matter of procedure, that interested persons first have an opportunity to be heard before an order is made.
27 In Fink v The Australian Film Commission the Act in question was accepted to be in terms wide enough to have empowered the lending of money to a person who was not a producer of Australian films, so long as the purpose of the lending was to encourage the making or distribution of Australian films. So much having been provided, the Act went on to provide that "without limiting the generality of the foregoing" there was power to make loans "to producers of Australian films". The High Court was not persuaded that the principle for which Anthony Horden Ltd is authority was applicable so as to confine the power to lend to producers of Australian films. The further and specific power directed to producers of Australian films was regarded as intended "to dispel any doubt that might be entertained as to the extent of the general power", see 519 per Mason J. The phrase "without limiting the generality of the foregoing" encouraged such a view. It was held that the power to lend was not confined to producers of Australian films. This decision seems to be of no direct relevance or assistance to the present issue.
28 There is reason to question, therefore, whether an implication should be seen to arise from the procedural requirement of s 72A(5), and the other provisions to which we have referred, that there first be an opportunity to be heard, which would deny to the Commission the power to join a person as a party or to allow a person to intervene under s 29(1)(j) and (k). As decisions of the Commission, this Court and the Full Court have indicated, a person may be heard so as to satisfy the
(Page 12)
- requirement of s 72A(5) without being joined as a party or intervening. The issue would appear worthy of reconsideration, however, whether the circumstance that a person has an interest sufficient to entitle them to be heard, should inhibit the power of the Commission to order that they be joined as a party or granted leave to intervene where one of those courses is otherwise appropriate.
29 In Re Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers - Western Australian Branch [2000] WASCA 233 the appellant had sought orders, in the same proceedings that have now given rise to this appeal, for the conduct of a secret ballot of the employees of the second respondent Inghams Enterprises Pty Ltd. In its reasons, the Full Court said at [9]:
"It is also to be noted that the employer in this case is not even a party to the present proceedings, it merely having been given the right to be heard."
30 It is in our view regrettable that neither the appellant nor the second respondent took steps to become a party to the proceedings in the light of that judgment.
31 While the difficulty we have noted may have led to the present predicament of the appellant, nevertheless, for the reasons given, the appeal in this case must be dismissed as incompetent.