Printing and Kindred Industries Union v Fairfax Community Newspapers Pty Ltd.
[1994] IRCA 33
•16 Sep 1994
C A T C H W O R D S
INDUSTRIAL RELATIONS COURT OF AUSTRALIA - stay of proceedings in Court - related proceedings in Australian Industrial Relations Commission - whether estoppel arises from election to proceed with applications in Court.
Industrial Relations Act 1988 (Cth), ss51, s118A
Legione v Hateley (1983) 152 CLR 406
Foran v Wight (1989) 168 CLR 385
R v Coldham; Ex parte Australian Workers' Union (1983) 153 CLR
415
Olex Cables v NUW (1990) 35 IR 368
Metal Trades Industry Association of Australia v Electrical
Trades Union of Australia (1992) 42 IR 158
National Union of Storeworkers, Packers, Rubber and Allied
Workers v Waterside Workers Federation of Australia (1990) 44
IR 79
Sterling Pharmaceuticals Pty Ltd v The Boots Company
(Australia) Pty Ltd 34 FCR 287
No. NI 111 & 525 of 1994
PRINTING AND KINDRED INDUSTRIES UNION v FAIRFAX COMMUNITY NEWSPAPERS PTY LIMITED
MOORE J
SYDNEY
16 SEPTEMBER 1994
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) No. NI 111 & 525 of 1994
)
NEW SOUTH WALES DISTRICT REGISTRY )
BETWEEN: PRINTING AND KINDRED INDUSTRIES UNION
Applicant
AND: FAIRFAX COMMUNITY NEWSPAPERS PTY LIMITED
Respondent
JUDGE: Moore J
PLACE: Sydney
DATE: 16 September 1994
ORDER OF THE COURT
THE COURT ORDERS THAT:
The proceedings are adjourned to 9.15am on 30 September 1994 for the bringing in of short minutes to give effect to the Reasons for Judgment delivered today.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) No. NI 111 & 525 of 1994
)
NEW SOUTH WALES DISTRICT REGISTRY )
BETWEEN: PRINTING AND KINDRED INDUSTRIES UNION
Applicant
AND: FAIRFAX COMMUNITY NEWSPAPERS PTY LIMITED
Respondent
JUDGE: Moore J
PLACE: Sydney
DATE: 16 September 1994
REASONS FOR JUDGMENT
On 14 March 1994 the Printing and Kindred Industries Union lodged an application ("the interpretation proceedings") under the Industrial Relations Act 1988 ("the Act") seeking the interpretation of certain provisions of the Graphic Arts Award, 1977 ("the Award"). The respondent to these proceedings is Fairfax Community Newspapers Pty Limited. The interpretation proceedings raise as an issue whether the Award applies to employees of the respondent who are designated "Macintosh Creatives". They also raise the related issues of whether the applicant is entitled to exercise a right of entry to make contact with employees who are "Macintosh Creatives" and is able to inspect wages books concerning their employment. The applicant also seeks a declaration that a state award which may apply to "Macintosh Creatives" is inconsistent with the Award. An amended application was filed on 13 May 1994 though the substance of the interpretation proceedings did not alter.
On 11 July 1994 the applicant lodged a further application alleging breaches of the Award ("the Award breach proceedings") which again raises an issue concerning both the right of entry under the Award and the right to inspect wages books under the Award in relation to "Macintosh Creatives". On 8 September 1994 an amended application was filed in the Award breach proceedings alleging additional breaches of the Award as it applies to "Macintosh Creatives" including a failure of the respondent to comply with a provision regulating hours of work and the provisions of the Award dealing with the payment of penalty rates for work on Saturdays. That amended application was accompanied by an affidavit of Mr Basil King who is an organiser of the applicant.
At a directions hearing on 1 August 1994 the respondent filed in Court a notice of motion seeking an order staying both proceedings until the Australian Industrial Relations Commission ("the Commission") had determined an application made by the applicant under s118A of the Act ("the s118A proceedings"). It is unnecessary to detail the entire history of the s118A proceedings which commenced when the application was filed in August 1991. Various employer interests intervened in the proceedings including the respondent and the proceedings have been protracted. It is clear from the material concerning these proceedings to which I was taken that the applicant sought to secure orders under s118A that would have enabled it to represent the industrial interests of "Macintosh Creatives", though the orders were intended to have a wider and more general application in the graphic arts and related industries. In describing the effect of the orders in this way I am not expressing a view one way or the other whether the applicant presently has the right to represent "Macintosh Creatives".
The s118A proceedings were, at least initially, intended to give effect to agreements reached between a number of registered organisations and the applicant concerning their respective rights of representation in the graphic arts and related industries. The proceedings have been heard by Senior Deputy President Marsh and were last before the Commission in early 1994. Those proceedings have proceeded no further, at least temporarily, so as to enable the applicant to consider certain matters raised by the Commission.
The principal submission of the respondent in the stay proceedings is that both the interpretation and Award breach proceedings are maintained with a view to establishing the right of the applicant to represent the industrial interests of "Macintosh Creatives". The existing and future rights of the applicant to represent industrially these employees and employees performing similar work has been a live issue in the s118A proceedings. The respondent submits that it is undesirable to have two sets of proceedings dealing with essentially the same issue. The appropriate course is for this Court to stay the interpretation and Award breach proceedings until the Commission has determined the s118A proceedings.
The applicant submits that the respondent is estopped from pursuing a stay order. It also submits that the proceedings in the Court and the Commission are different in character as it is only the Court that can determine authoritatively the scope of the eligibility rules, and thus the existing representational rights, of the applicant. It further submits that the proceedings in the Court concern existing rights under an award in relation to past conduct.
The submission of the applicant that the respondent is estopped from pursuing this interlocutory application is based on a request made by the respondent's solicitors to the applicant's solicitors in a letter dated 10 June 1994 which contained the following:
"Our client takes the view that having regard to the nature and conduct of the section 118A proceedings (ie the proceedings in AIRC matter C No. 21395 of 1991), these proceedings should be stayed pending the hearing and determination of the section 118A proceedings.
Accordingly, our client requires your client to make an election between prosecuting these proceedings and its application under section 118A."
There was further correspondence on this subject which resulted in a letter from the applicant to Senior Deputy President Marsh indicating that the applicant intended to discontinue the s118A proceedings against the respondent employer. The respondent's solicitors had been told this would occur in a letter dated 2 September 1994 from the applicant's solicitors. The form the discontinuance would take appears to be that the applicant would not seek orders that gave the applicant any representational rights in relation to employees of the respondent or at least rights in addition to those it presently has. Unlike the employees of other employers, those employees would not be named in any orders that were made.
In my opinion no estoppel can arise. The representation contained in the letter of 10 June 1994 is ambiguous. It is now said by the respondent that it was seeking the discontinuance of the entire proceedings under s118A if that was the course the applicant chose to take. That construction of the letter of 10 June 1994 is reasonably open and there was no other evidence to which my attention was drawn that indicates the representation was understood by both parties as being more limited, that is limited to discontinuing the s118A proceedings against the respondent only. I accept the submission of the respondent that it still has an interest in the s118A proceedings and that any decision of the Commission on the question of industrial representation of employees other than those of the respondent employer will, at least indirectly, impact upon industrial representation of its own employees. It is probable that any decision in those proceedings that the applicant can represent more generally the class of employee of which "Macintosh Creatives" are an example, will lead in due course to a resolution in the applicant's favour, of the issue of the applicant's future rights to represent "Macintosh Creatives".
To found an estoppel it is necessary for a representation to be clear: see Legione v Hateley (1983) 152 CLR 406 at 435-6 per Mason and Deane JJ and Foran v Wight (1989) 168 CLR 385 at 410-11 per Mason CJ and 435-6 per Deane J. The representation by the respondent was ambiguous. For this reason alone no estoppel can arise and it is unnecessary to consider whether the correspondence would, more generally, have given rise to an estoppel.
As to the second matter raised by the applicant, it is settled that the Commission cannot conclusively determine the meaning of the eligibility rules of a registered organisation at least for the purposes of determining its own jurisdiction: see R v Coldham; Ex parte Australian Workers' Union (1983) 153 CLR 415 at 419 per Mason ACJ and Brennan J. However the Commission's role under s118A is to determine what are appropriate rights of representation having regard to contemporary industrial relations considerations. That may include a consideration of what are the existing rights of representation of the affected organisations deriving from their eligibility rules. While consideration must be given to the scope of the eligibility rules of the organisation benefiting from an order made under s118A(1)(a): see Olex Cables v NUW (1990) 35 IR 368 at 382 it need not be considered when making orders under s118A(1)(b) or (c) other than as a discretionary consideration. In a decision of a Full Bench of the Commission in Metal Trades Industry Association of Australia v Electrical Trades Union of Australia (1992) 42 IR 158 at 161 the Commission said, in relation to submissions concerning the meaning of the rules of the Electrical Trades Union of Australia:
"The eligibility rules of the ETU were formulated over half a century ago. The Union represents employees in areas of industry where technological developments have, in that period, been profound....
Section 118A of the IR Act provides a mechanism by which the extent of coverage in a contentious area can be established by clear words and prevent what otherwise may be time consuming and costly search for an authoritative determination of the true meaning of the words which may have outlived their usefulness and where that determination might be, in a sense, arbitrary [see observations of Dixon J in R v Central Reference Board Ex Parte Thiess Repairs Pty Ltd (1948) 77 CLR 123 @ 140.7]. That section permits a rational debate about the appropriateness of coverage in a particular area which would produce a considered decision paying regard to contemporary industrial relations considerations rather than an outcome determined by the meaning of words and expressions adopted by ETU at a point closer in time to the first flickerings of Thomas Edison's light bulb than now.
If it is inappropriate that ETU have coverage of all employees to whom the proposed 1991 Award is intended to apply then orders could be made under s.118A removing such coverage as it currently has of those areas. Conversely if it is appropriate that ETU have coverage of all employees to whom the proposed 1991 Award is intended to apply then orders could be made granting coverage to the extent that it does not currently exist under its eligibility rules."
In National Union of Storeworkers, Packers, Rubber and Allied Workers v Waterside Workers Federation of Australia (1990) 44 IR 79, a Full Court of the Federal Court decided to adjourn proceedings brought under s143 of the Conciliation and Arbitration Act 1904, the purpose of which was to establish the rights of the Waterside Workers Federation ("WWF") to represent certain employees under its eligibility rules. The Court did so in circumstances where the Commission was dealing with an application by the WWF brought under s118, the terms of which are, in substance, now found in s118A. The Court considered that "in the present case it is not a significantly useful exercise for us to determine the matter" [44 IR at 84]. I adopt, without repeating, the reasons of the Full Court including the Court's consideration of the differences between s142A of the Conciliation and Arbitration Act 1904 and s118 (as it then was) of the Act. Plainly the conclusion of the Full Court was reached having regard to the circumstances arising in those proceedings. Nonetheless it is a conclusion that, in my opinion, has relevance to these proceedings.
In the ordinary course, this Court is obliged to hear and determine the two applications brought by the applicant: see Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 at 399 per Deane J, though the Court nonetheless has jurisdiction to stay, on proper grounds, proceedings in the Court: see Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd 34 FCR 287 at 290-291 per Lockhart J.
The interpretation and Award breach proceedings are brought at a time when there is a live issue between the applicant and the respondent about the applicant's right to represent "Macintosh Creatives". I was informed that the scope of the Award reflects, in large measure, one part of the eligibility rules of the applicant. Having regard to the circumstances in which the interpretation and Award breach proceedings were commenced it is reasonably clear that they have been brought to resolve, either in whole or in part, the broader controversy between the applicant and the respondent about the rights of the former to represent "Macintosh Creatives" industrially. This is apparent not only from the time at which the proceedings were commenced but also the range of orders sought in each matter which are, in a variety of ways, directed to establishing, even if indirectly, the rights of the applicant to represent "Macintosh Creatives".
If the interpretation and Award breach proceedings raised only an issue, albeit indirectly, about the right of the applicant to represent "Macintosh Creatives" under its eligibility rules, I would have few reservations about either adjourning the proceedings or staying them until the s118A proceedings had concluded. However the Award breach proceedings in particular, raise an issue about the rights of individual employees under the Award. I am concerned that for so long as I might adjourn or stay those proceedings, the extent of the rights of those employees remains unresolved. If they are entitled to benefits under the Award that they have not been afforded to date, as the applicant alleges, then it would seem they will not be afforded them until the Award breach proceedings are concluded.
I am prepared to stay the proceedings in this Court but not on the terms sought by the respondent. It is possible that the s118A proceedings will progress slowly. While I make it plain that I am not implying the respondent has sought to delay them or will do so, proceedings of the type before Senior Deputy President Marsh can be delayed by a party or intervener wishing to delay them however anxious an applicant or the Commission might be to see them brought to finality quickly. If it transpires that the s118A proceedings do not conclude within a reasonable period from now, and particularly if this is not the result of the conduct of the applicant, then the Court can consider removing the stay upon application. The stay order should be framed so as to permit this to occur. I will adjourn the matter for 14 days to enable the parties to bring in short minutes to give effect to this judgment.
I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.
Associate:
Date:16 September 1994
Solicitor for the Applicant: Mr R. McClelland
of Turner Freeman
Counsel for the Respondent: Mr J. West QC with
Mr R. Goot
Solicitor for the Respondent: Minter Ellison Morris
Fletcher
Date of hearing: 9 September 1994
Date of judgment: 16 September 1994
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