Nicaro Holdings Pty Ltd v Martin Engineering Co
[1990] FCA 40
•16 Feb 1990
| IN THE FEDERAL COURT OF AUSTRALIA | ) |
| ) | |
| NEW SOUTH WALES DISTRICT REGISTRY ) | No. N I 130 of 1988 |
1
| INDUSTRIAL DIVISION | ) |
BETWEEN: NATIONAL UNION OF
STOREWORKERS PACKERS RUBBER
AND ALLIED WORKERS
Applicant
AND: WATERSIDE WORKERS'
- FEDERATION OF AUSTRALIA Respondent
| CORAM : | KEELY, WILCOX and GRAY JJ |
| PLACE: | SYDNEY |
| DATE | : | 16 FEBRUARY 1990 |
MINUTES OF ORDER
Noting the undertaking given through its counsel to the Court by the respondent, the Waterside Workers' Federation of Australia, that the respondent will diligently pursue the application made by it under s.118 of the Industrial Relations Act dated 8 February 1990 and will endeavour
hearing of that application,
THE COURT ORDERS THAT:
| 1. | The | f u r t h e r | h e a r i n g of | t h i s ma t t e r | be | adjourned | f o r |
mention b e f o r e a s i n g l e Judge of t h e Court on Tuesday
22 May 1990 a t 9 . 3 0 am.
L i b e r t y be r e se rved t o a l l p a r t i e s t o app ly t o a
s i n g l e Judge on 2 daysc n o t i c e t o t h e Court and a l l
o t h e r p a r t i e s .
| Note: | Se t t l emen t | and | e n t r y of | o r d e r s | i s d e a l t w i t h | i n Order |
36 of t h e Federa l Court Rules.
| IN THE FEDERAL COURT OF AUSTRALIA | ) |
| 1 | |
| NEW SOUTH WALES DISTRICT REGISTRY ) | NO. N I 130 of 1988 |
1
| INDUSTRIAL DIVISION | ) |
BETWEEN: NATIONAL UNION OF
STOREWORKERS PACKERS RUBBER
AND ALLIED WORKERS
Applicant
AND: WATERSIDE WORKERS'
FEDERATION OF AUSTRALIA
Respondent
| CORAM : | KEELY, WILCOX and GRAY JJ |
| PLACE | : SYDNEY |
| DATE | : | 16 FEBRUARY 1990 |
REASONS FOR JUDGMENT
THE COURT: The matter before the Court is an application for an adjournment of the hearing of a proceeding brought by the
| Workers (formerly The Federated Storemen and Packers' Union of | National Union of Storeworkers, Packers, Rubber and Allied |
| Australia) ("the NUW") seeking an order cancelling the registration under the Industrial Relations Act 1988 of the Waterside Workers' Federation of Australia ("the WWF"). When the proceeding was commenced the Conciliation and Arbitration | |
| Act 1904 was in force. The WWF was registered under that Act. Pursuant to 5.143 of the Conciliation and Arbitration Act the applicant sought cancellation of that registration. The Conciliation and Arbitration Act was repealed on 1 March 1989. However that repeal did not affect the continuance of thls application. Section 66 of the Industrial Relations (Consequential Provisions) Act 1988 provides that an uncompleted application under s.143 of the Conciliation and Arbitration Act should continue to be dealt with under that Part subject to certaln modifications including a substitution of references to the Industrial Relations Act for references to the Conciliation and Arbitration Act. | |
| The allegation made by the applicant, in support of its application for the deregistration of the respondent, is that the rules of the respondent have not been observed: see s.l43[l)(c) of the Conciliation and Arbitration Act. It is said that the WWF has enrolled as members persons who failed to answer the criterion of eligibility set out in rule 6 of the WWF rules, namely: |
"(a) Any person who intends to follow the
of respectable character and of the age occupation of a waterside worker, who is of at least 18 years and not exceeding 45 years and who is reasonably competent and able to perform all the duties of a waterside worker may become a member ..."
In particular, by its application the NUW complains
of the enrollment of persons employed by Port Botany Container
Depot Pty Limited, the operator of container terminals or depots at Banksmeadow and at the Botany Bay Industrial Estate, by Liner Freight Services Pty Limited, the operator of a container depot at Villawood, and by Seatons Container Freight Station Pty Limited, the operator of a container depot at Camellia. The argument has not been fully developed but, as
we understand the NUW1s case, it is contended that none of
these terminals or depots is "in the vicinity of" a wharf. Although the words "in the vicinity of" a wharf do not appear in the WWF eligibility rule itself, there are decisions of this Court which treat as important the question whether the place of employment of an applicant for membership is in the vicinity of a wharf: see Co-operative Bulk Handling Limited v Australian Workers' Union (1980) 32 ALR 541, Electrical Trades Union of Australia v Waterside Workersr Federation of Australia (1982) 40 ALR 173 and Federated Clerks' Union of Australia v Waterside workers' Federation of Australia (1983)
4 IR 25. The question whether particular premises are "in the
| vicinity of" a wharf is, of course, always a question of fact. Because the concept of vicinity is one of degree, the question will often be one of difficulty, upon which views may differ. | The recent decision of a Full Bench of the Australian | Industrial Commission ("the Commission") in Sea Swift Pty |
| Limited v Waterside Workers' Federation of Australia (not reported, 30 October 1989) illustrates the point. | ||
| Pursuant to directions made by a single Judge of the Court, the evidence to be relied upon in this proceeding by | ||
| the parties was reduced to affidavit form. The Judge also gave leave to three entities to intervene in the proceeding, subject to some limitations. When the case was called on, one intervener, the Australian Shipping and Travel Officers' Association, sought and was granted leave to withdraw. The remaining interveners, Port Botany Container Depot Pty Limited and Seatons Container Freight Station Pty. Limited, remained and supported the application for the adjournment. | ||
| The application for adjournment is made by the respondent to the principal proceeding, the WWF. The basis of the application is that there are presently proceedings before the Commission which are llkely to render academic the questions which this Court is asked to determine. | ||
| It appears that the question of coverage of persons working at container terminals and depots has long been controversial. On 4 September 1989 the Association of Employers of Waterside Labour ("the AEWL"), a registered employer organisation, served on 11 unions, including both the NUW and the WWF, a log of claims. Amongst the matters dealt | ||
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| taken by the AEWL is that all employees at any particular depot ought to be covered by a single union. | ||
| The claims made by the AEWL were not conceded by the respondent unions and the matter came before Commissioner Sweeney in conference on 21 November 1989. There was discussion about the desirability of negotiations between the affected unions, perhaps with the assistance of the Australian Council of Trade Unions. Apparently one meetlng was held, but no agreement was reached and the matter came back before Commissioner Sweeney on 2 February 1990. On that day there was discussion about the timing of a conference before the Commissioner at which the matters raised by the log of claims could be discussed. Reference was made to the pendency of this proceeding, but no suggestion was made that there would be an application for an adjournment. On the contrary, the whole tenor of the discussion, in which the WWF representative joined, was that the hearing in this Court would proceed and that it might furnish some guidance to the Commission. | ||
| However, on Friday 9 February 1990 the WWF changed tack. On that day it filed a Notice of Motion seeking a stay or adjournment of the hearing of the principal proceeding, which has been set down for hearing before a Full Court on the following Thursday 15 February. |
The Notice of Motion was made returnable on 15
February and, at the commencement of the hearlng on that day, counsel for the WWF moved for an adjournment of the principal proceeding -- sine die. Evidence was given as to the course of proceedings before the Commission, including evidence showing that, on 13 February 1990, the matter was before Deputy
President Polites for the purpose of hearing an application made by the WWF,under s.118 of the Industrial Relations Act. Section 118 reads as follows:
"118 (1) The powers of the Commission in relation to demarcation disputes are exercisable only by a Presidential Member or a Full Bench.
(2) The Commission may seek advice from an appropriate peak council about the timing of the exercise of any of the Commission's powers in relation to a demarcation dispute.
(3) Without limiting the powers of the Commission in relation to demarcation disputes, the Commission may, for the purpose of preventing or settling a demarcation dispute, but subject to subsection 202(3), make one or more of the following orders:
(a) an order that an organisation of employees shall have the right, to the exclusion of another organisation or organisations, to represent under this Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation; (b) an order that an organisation of employees that does not have the right to represent under this Act the industrial interests of a particular class or group of employees shall have that right; (c) an order that an organisation of employees shall not have the right to represent under this Act the industrial
of employees who are eligible for interests of a particular class or group membership of the organisation.
(4) In considering whether to make an order under subsection (3), the Commission shall have regard to any agreement of which the Commission becomes aware that deals with the right of an organisation of employees to represent under thls Act the industrial interests of a particular class or group of employees.
(5) An order made under subsection (3) may be of general application or expressed to be subject to specified conditions or limitations.
(6) where the Commission makes an order in relation to a demarcation dispute it shall, unless satisfied that no alteration of the rules of any organisation concerned is necessary, refer the matter to a designated Presidential Member.
(7) Where a matter is referred to a Presidential Member under subsection ( 6 ) , the Presidential Member shall, after giving each organisation concerned an opportunity, as prescribed, to be heard, determine such alterations (if any) of the rules of any organisation concerned as are, in the Presidential Member's opinion, necessary to reflect the order of the Commission.
(8) An alteration of the rules of an organisation determined under subsection (7) takes effect on the day on which the determination is made."
It will be noted t.hat an order under s.118 may be made only by a Presidential Member or a Full Bench of the Commission. Deputy President Polites adjourned the hearing of the s.118 application until next Tuesday 20 February, but we understand that it is unlikely to be heard to a conclusion at that time. The order under s.118 sought by the WWF is an
| order to the effect that the WWF shall have the right to | represent under the Act the industrial interests of all | |||||||
| persons employed at container depots or terminals. | ||||||||
| The argument put by counsel for the WWF in support of their application for an adjournment is that there is an industrial issue, lying between the NUW and the WWF, which cannot be resolved in this proceeding, but which is capable of resolution by the Commission, especially if a 5.118 order is made. Counsel point out that this proceeding involves only three container depots or terminals, whereas the AEWL log of claims refers to 16 container depots in five States. To resolve the question whether persons employed at those three terminals are eligible to join the WWF will not determine the eligibility of employees at other container depots. In any event, say counsel, eligibility is only one of the matters to | ||||||||
| be considered by the Commission in determining whether to make | ||||||||
| an order under s.118. | ||||||||
| We have reached the opinion that the application for an adjournment should be granted. It is unfortunate that the application comes at such a late stage. It has been apparent since last December that the dispute between the NUW and the WWF was unlikely to be resolved by negotiation. It would have been open to the WWF to make its s.118 application at that time and then to seek an adjournment of this hearing. If that course had been taken it might have been possible to avoid the | ||||||||
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| to focus upon the s.118 application at an earlier stage, free of the distraction of this proceeding, wlth the prospect of an earlier resolution of the whole dispute. There is no doubt that the matter of representation of persons working in container depots and terminals has been a source of friction, both within the union movement and between employees and employers, for some time. We see the speedy resolution of this issue as being a matter of prime importance. | ||||||||
| However, although we are critical of the tardiness of this application, we do not think that it should be resolved by reference to past events and omissions. The question is what is the best course to take, as matters now stand. The fact is that the WWF now has on foot before the Commission an application under s.118. Through their counsel they have given to the Court an undertaking to prosecute that application diligently and to endeavour to have it determined at the earliest possible date. We have no illusions about the complexity of the task which faces the Commission, but we are confident that the Commission will appreciate the desirability of an early resolution of the application and make arrangements accordingly. | ||||||||
| In this situation it seems to us that little would be gained by our proceeding to determine whether employees at | ||||||||
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| determination in relation to those three depots would determine nothing in respect of other depots. Counsel for the NUW submit that the reasoning of the Court might prove helpful in relation to other depots; but we doubt that. In every case it is a question of fact whether a particular depot should be regarded as being "in the vicinity of" a wharf. One can substitute synonyms for this phrase, but they do not advance the resolution of that question of fact. And, as the matter is one of degree, it is unlikely that a helpful statement of principle could be propounded. | ||||||||
| However, the problem of the other 13 depots is a matter of only secondary importance in our reasoning. The more significant factor is that, as we read s.118, it is not essential for the Commission to determine whether, under the present rules of the WWF, employees at container depots are eligible to join that organisation. Section 118(3)(b) permits the Commission to make "an order that an organisation of employees that does not have the right to represent under this Act the industrial interests of a particular class or group of employees shall have this right". In marked contrast to the position under paras. (a) and (c) of s.118(3), there is no reference to existing eligibility. Of course, an organisation can only represent the industrial interests under the Act of a class or group of employees if the members of that class or group are able to join the organisation. But we do not think | ||||||||
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| rule changes, consequent upon an order under s.118(3). Section 204(8) contemplates that a rule change pursuant to s.118(7) may take the form of, or include, a change in the eligibility rules of the organisation. | ||||||||
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| position changes. We agree that, although s.118 does not state any criteria for determining whether an order should be made under that section, the Commission may regard present eligibility as a relevant factor. In some cases it may be determinative. In other cases, for example, where the determination of present eligibility involves difficulty and the possibility of anomolous results, the Commission might think it more fruitful to concentrate attention on other relevant factors. | ||||||||
| In expressing the view that, in the present case, it is not a significantly useful exercise for us to determine the matter of eligibility at these three depots, we do not mean to indicate any view upon the question whether there ought to be a 5.118 order or, if so, what criteria should be used to determine whether the WWF should be given the right to represent the workers at container depots and terminals. These are matters for the Commission. If the Commission thinks that the matter of present eligibility is of sufficient importance to make it necessary to resolve that question, in respect of some or all of the depots or terminals, it is well placed to make its own inquiry and to find the facts. If, on the other hand, the Commission feels that present eligibility is a matter of little or no consequence, it might decide that this inquiry is unnecessary. We say no more than that, having | ||||||||
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| parties or the Court to pursue the matter of eligibility in these three depots at this stage. | ||||||||
| We emphasise the words "at this stage". Everything we have said is posited upon the assumption that the s.118 | ||||||||
| application will proceed efficiently and with a sense of urgency. If that assumption turns out to be wrong, it would be unfair to continue to deprive the NUW of a hearing upon the complaints which they bring to thls Court. We think that it is undesirable for the matter to be adjourned sine die. It is better to fix a date at which the parties will have to return to this Court to report progress. Accordingly, we propose to adjourn the further hearing of the matter untll 9.30 am on Tuesday 22 May, upon which day the matter will be listed for mention before a single Judge. Moreover, we will reserve liberty to apply on 2 daysr notice. If any party feels that it has reason to complain about the conduct of another party, either in relation to what is happening in the depots or in relation to proceedings in the Commission, it may apply to a single Judge for an order re-fixing the matter for hearing. If necessary, the Full Court will reconvene at short notlce. | ||||||||
| I certify this and the thirteen preceding pages to be a true copy of the Reasons for Judqment of the Court. | ||||||||
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| Intervenors: |
Australian Shipping and Travel
Officers Associatlon
Counsel : W. R. Haylen Solicitor: Geoffrey Edwards & Co. Port Botany Container Depot
Pty. Ltd.
Counsel : J. P. Phillips Solicitor: Suzanne M. Switzer Seatons Container Freight
Statlon Pty. Ltd.
Counsel : F. L. Wright Solicitor: Ebbsworth & Ebbsworth
| Date(s) of hearing: | 15 February 1990 |
| Date of Judgment: | 16 February 1990 |
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