Re Harrison

[1995] IRCA 174

PREROGATIVE RELIEF - Application for writs of prohibition and mandamus addressed to members of Australian Industrial Relations Commission - Alleged failure to accord natural justice - Leave granted by Commission to individuals to put submission regarding the form of the Commission's order - Commission refused to allow the re-opening of the matters already determined - No denial of natural justice - Observation concerning the Commission's role in an application under s.118A of the Industrial Relations Act and necessity for interested persons to apply for intervention at an early stage of a proceeding.

Industrial Relations Act 1989, ss.118A and 412.

IN THE MATTER of an application for a Writ of Prohibition and a Writ of Mandamus against THE HONOURABLE DEPUTY PRESIDENT HARRISON, THE HONOURABLE DEPUTY PRESIDENT WILLIAMS AND COMMISSIONER BACON (MEMBERS OF THE INDUSTRIAL RELATIONS COMMISSION), First Respondents

THE MARITIME UNION OF AUSTRALIA, Second Respondent and

THE AUSTRALIAN MARITIME OFFICERS' UNION, Third Respondent

EX PARTE:REID and ORS, Applicants/Prosecutors

CORAM:    WILCOX CJ, KEELY J and BEAZLEY J
PLACE:    SYDNEY
DATE:     20 MARCH 1995

IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA  )        No. NI.1341 OF 1995
NEW SOUTH WALES DISTRICT REGISTRY)

IN THE MATTER of an application for a Writ of Prohibition and a Writ of Mandamus against THE HONOURABLE DEPUTY PRESIDENT HARRISON, THE HONOURABLE DEPUTY PRESIDENT WILLIAMS AND COMMISSIONER BACON (MEMBERS OF THE INDUSTRIAL RELATIONS COMMISSION)

First Respondents

THE MARITIME UNION OF AUSTRALIA

Second Respondent

and

THE AUSTRALIAN MARITIME OFFICERS' UNION

Third Respondent

EX PARTE:REID and ORS

Applicants/Prosecutors

CORAM:    WILCOX CJ, KEELY J and BEAZLEY J
PLACE:    SYDNEY
DATE:     20 MARCH 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The Application be dismissed.

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.1341 OF 1995
NEW SOUTH WALES DISTRICT REGISTRY)

IN THE MATTER of an application for a Writ of Prohibition and a Writ of Mandamus against THE HONOURABLE DEPUTY PRESIDENT HARRISON, THE HONOURABLE DEPUTY PRESIDENT WILLIAMS AND COMMISSIONER BACON (MEMBERS OF THE INDUSTRIAL RELATIONS COMMISSION)

First Respondents

THE MARITIME UNION OF AUSTRALIA

Second Respondent

and

THE AUSTRALIAN MARITIME OFFICERS' UNION

Third Respondent

EX PARTE:REID and ORS

Applicants/Prosecutors

CORAM:    WILCOX CJ, KEELY J and BEAZLEY J
PLACE:    SYDNEY
DATE:     20 MARCH 1995

EXTEMPORE REASONS FOR JUDGMENT

THE COURT:  The proceeding before the Court is an application for prerogative writs, prohibition and mandamus addressed to the first respondents, three members of the Australian Industrial Relations Commission, Deputy Presidents Harrison and Williams and Commissioner Bacon.  The second and third respondents are two organisations registered under the Industrial Relations Act 1988, the Maritime Union of Australia and the Australian Maritime Officers Union. They are the present applicants in proceedings before a Full Bench of the Commission constituted by the first respondents.

The prosecutors are 93 individuals, being persons employed in administrative and clerical capacities by the Fremantle Port Authority.  Seventy-five of the prosecutors are members of a union, Federal or State, other than the second and third respondents.  The remaining 18 prosecutors are apparently not members of any union.

The proceeding was commenced in the High Court of Australia on 30 November 1994. It was remitted to this Court pursuant to s.412(2) and (3) of the Industrial Relations Act by Mason CJ on 3 February 1995. 

The relevant industrial matter has had a long history, which it is unnecessary to set out in detail. In July 1990, demarcation disputes broke out in the waterfront industry. They involved a number of maritime unions and some 103 employers, in all States, including the Fremantle Port Authority. The disputes were notified to the Commission. The Commission embarked on a hearing of the disputes, during the course of which reference was made to the possibility of the matter being dealt with under s.118A of the Industrial Relations Act.  That section relevantly provides:

"118A(1)Subject to this section and subsection 202(3), the Commission may, on the application of an organisation, an employer or the Minister, make the following orders:

(a)an order that an organisation of employees is to have the right, to the exclusion of another organisation or other 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 is to have that right;

(c)an order that an organisation of employees is not to have the right to represent under this Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisations.

(1A)   ...

(2)In considering whether to make an order under subsection (1), the Commission:

(a)must consider whether it should consult with appropriate peak councils that are representative of organisations representing employees or organisations representing employers; and

(b)may consult with appropriate peak councils and, where it does so, must inform the parties to the proceedings under this section relating to the order of any views expressed by those peak councils; and

(c)must have regard to any agreement or understanding of which the Commission becomes aware that deals with the right of an organisation of employees to represent under this Act the industrial interests of a particular class or group of employees.

(3)An order under subsection (1) may be subject to conditions or limitations.

(4)The powers of the Commission under this section are exercisable only by a Full Bench or Presidential Member."

It will be noted that subs.(2)(c) requires the Commission, in considering whether to make an order under subs.(1), to "have regard to" any relevant agreement or understanding.  However, the Commission is not bound by any agreement or understanding.  The power conferred by the section is a discretionary one.  It is to be exercised at a high level, either by a Full Bench or a presidential member.

In October 1991, an application was filed by five maritime unions, being the ancestors of the second and third respondents, for an order under s.118A. The application referred to the five applicant organisations as the "principal unions". It identified 24 other registered organisations as organisations currently representing some waterfront employees and referred to them as "other organisations".

The orders sought by the application included the following:

"5.Subject only to clause 7 of this order the principal unions shall have the right, to the exclusion of the other organisations, to represent under the Act the industrial interests of the employees as defined.  The principal unions shall have such right with respect to all employees who are eligible for membership of the principal unions or any of them and with respect to all employees who have not previously been eligible for membership of the principal unions.

6.Subject only to clause 7 of this order the other organisations shall not have the right to represent under the Act the industrial interests of the employees as defined.

7.The other organisations shall maintain the right to represent under the Act the industrial interests of only those employees as follows:

(a)Where one of the other organisations has entered into a demarcation agreement with one or more of the principal unions, the said other organisation shall maintain the right to represent under the Act only those employees identified in the demarcation agreement and on the terms and conditions contained in the demarcation agreement.

(b)Where one of the other organisations has not entered into a demarcation agreement with one or more of the principal unions the said other organisation shall maintain the right to represent under the Act only those employees falling within the scope and meaning of the following provisions and on the terms and conditions set out in the following provisions:

(i)The said other organisation shall have the right to represent an employee who, as at the date of this order is a member of that organisation and who formally expresses the desire to remain a member of that organisation.

(ii)The said other organisation shall not prevent or hinder any employee becoming a member of one of the principal unions, and shall not encourage any employee to become a member of any organisation of employees other than one of the principal unions.

(iii)The said other organisation shall not enrol as a member any employee who was not a member of that organisation as at the date of this order, and shall not have the right to represent such employees.

(iv)The said other organisation shall not enrol as a member any employee engaged after the date on which this order is made, and shall not have the right to represent such employees.

8.Nothing in this order shall prevent one or more of the other organisations from entering into a demarcation agreement with the principal unions."

The effect of the proposed order 8 is obscure.  On its face, it seems to contemplate a demarcation agreement contradicting and prevailing over the Commission's decision that a particular organisation is to have the right to represent particular employees.  We do not see how this could validly be made.

The s.118A application made by the five organisations was referred to a Full Bench of the Commission constituted by people other than the first respondents. Because of resignations from the Commission, the Bench has been reconstituted more than once. Nothing turns on this. Without going into detail, it is sufficient to say that the Full Bench heard evidence, and carried out inspections, over a lengthy period in many parts of Australia. During the course of the hearing there were various union amalgamations and negotiations between some of the interested organisations.

On 8 February 1993, counsel for the applicant unions handed to the Full Bench an amended draft order.  It was similar in concept to the original draft.  Because of amalgamations there were by now only three applicant organisations and the number of other organisations, now called "respondent unions", had been reduced to 23.  The draft still provided for the applicant unions to have general representation rights subject to draft order 7.  This order read:

"7.The respondent unions shall maintain the right to represent under the Act the industrial interests of only those employees as follows:

(a)Where one of the respondent unions has entered into a demarcation agreement with one or more of the applicant unions, the said respondent union shall maintain the right to represent under the Act employees only to the extent contemplated by such demarcation agreement.

(b)Where one of the respondent unions has not entered into a demarcation agreement with one or more of the applicant unions the said respondent union shall maintain the right to represent under the Act only those employees falling within the scope and meaning of the following provisions and on the terms and conditions set out in the following provisions:

(i)The said respondent union shall have the right to represent an employee who, as at the date of this order is a member of that organisation and who formally expresses the desire to remain a member of that organisation.

(ii)The said respondent union shall not prevent or hinder any employee becoming a member of one of the applicant unions, and shall not encourage any employee to become a member of any organisation of employees other than one of the applicant unions.

(iii)The said respondent union shall not enrol as a member any employee who was not a member of that organisation as at the date of this order, and shall not have the right to represent such employees.

(iv)The said respondent union shall not enrol as a member any employee employed after the date on which this order is made, and shall not have the right to represent such employees."

Following the submission of this document in February 1993, what was said to be final and written oral submissions were delivered. On 20 August 1993, the Full Bench handed down a decision that is reported in 51 IR 59 under the name Association of Australian Port and Marine Authorities v Waterside Workers Federation of Australia.

The decision constitutes a detailed and comprehensive review of the operations of ports throughout Australia, with reference in each case to the existing situation regarding union coverage.  At 105 the Full Bench summarised the effect of its decision in this way:

"(i)We are not prepared to make the order presently sought under s.118A.

(ii)We are prepared to make an order under s.118A that removes from organisations presently representing employees at the port authorities the subject of this application, the right to represent those employees under the IR Act.  The order would confer on the applicant organisations the right to represent those employees.  This conclusion does not concern the Cairns Port Authority, the Mackay Port Authority or the Department of Transport in Queensland.  We express these conclusions on the assumption that the order will generally be consented to by the organisations concerned, will be clear in its terms and will, in aggregate, result in a significant reduction in the number of organisations representing employees of the port authorities to whom these proceedings relate.  ETU and PGEU are in a different position.

(iii)If an order is made under s.118A we are prepared to exercise jurisdiction under the IR Act to settle a dispute concerning the wages and working conditions of employees of the port authorities the subject of this application and to whom the order under s.118A relates.  If an order is made we will formally dismiss the applications under s.111(1)(g) in relation to those port authorities.  This conclusion does not concern the Maritime Services Board of New South Wales."

As is evident from this summary, the Full Bench was not disposed to make immediate orders.  The application was left in abeyance pending the discussion between the parties contemplated by paragraph 2 of the summary.  As it happened, agreement was reached between the relevant unions, at least in regard to Fremantle.  On 19 May 1994 officers of the Maritime Union of Australia and the Australian Maritime Officers Union wrote letters to officers of the Australian Services Union, a successor of the Federated Clerks Union of Australia one of the other organisations referred to in the original draft order, and to the State Public Service Federation, another of the other organisations, recording an agreed position whereby the Australian Services Union or the State Public Service Federation, as the case might be, would consent to orders in favour of the two maritime unions for exclusive rights to represent the industrial interests of all employees in port and marine authorities as from particular dates.  In the case of employees of Fremantle Port Authority, the agreed date was 1 December 1995.

On 24 May 1994 the parties returned to the Commission.  On that day the present prosecutors, for the first time, sought to participate in the proceeding.  Counsel for the prosecutors sought leave to intervene.  There was some discussion about the basis of his application; counsel for the maritime unions indicating that his clients had no objection to the prosecutors being heard regarding the form of the Commission's orders but that they did object to any application to re-open the case, call evidence and "create another legal extravaganza".    Counsel for the prosecutors pressed his clients application to have the case reopened, submitting they had not appreciated until the Commission's decision of August 1993 that the existing position regarding representation of administrative and clerical staff by the Federated Clerks Union and the State Public Service Federation might change.

The Full Bench did not immediately rule on the intervention application.  However, on 20 July 1994 it announced a decision dealing with the history of the matter and stating that the subject matter now before it was "the question of the substance and form of the order."  It set out issues on that subject that it wished the parties to address and concluded by dealing with the application for intervention made by the present prosecutors and some other persons:

"For the purposes of compliance with these directions, we are prepared to grant intervention to those who applied for it at the hearing on 24 May 1994.  This is not, however, to be interpreted as a licence to re-open the matters.  We refer the parties and the intervenors to what the Commission said in its decision about the entitlement of the Commission to assume that agreements are signed with the authority of an organisation, in accordance with its rules, and that those rules provide for the democratic control of the organisation by its members."

On 7 September 1994 there was a further hearing before the Full Bench during which the prosecutors pressed to reopen the question of representation at Fremantle.  The Commission rejected this application.  The presiding member, Deputy President Harrison, said:

"We have considered the submissions that have been made.  Our decision is as follows.  The application of the Fremantle Port Authority to reopen the matter is dismissed.  The application made on behalf of a number of individuals, employees of the Fremantle Port Authority to reopen the matter is dismissed.  The application by the FAMU to have the right of intervention granted to those individuals be withdrawn is dismissed.  Our reasons for decision will be published in due course."

The reasons have not yet been published.

The prosecutors' application for prerogative writs is based on the contention that, in refusing to allow the reopening of the matters determined in August 1993, the Full Bench denied them natural justice.  There is no question but that the Commission is bound to act in accordance with the dictates of natural justice in dealing with applications made to it.  The contrary is not suggested by counsel for the second and the third respondents.  The question for our determination is a factual one:  whether or not the Full Bench denied natural justice in this case.  We do not think it did. 
In considering the case, it is important to remember that, over a period of years, the Commission engaged in a exhaustive investigation of the matter of union representation in Australian ports. In carrying out that investigation, it had before it all relevant organisations, including the organisations of which most of the present prosecutors were members, the Federated Clerks Union and the State Public Service Federation. It is true that those two unions had initially come to an understanding with the maritime unions whereby they would be left representing administrative and clerical staff at Fremantle but there was no guarantee that the Commission would make orders in accordance with that understanding. An order under s.118A of the Industrial Relations Act is not like a consent order made by a court wherein the court simply orders in accordance with an agreement reached by the parties and without considering for itself the fairness or desirability of the agreed terms. An order under s.118A is an exercise of an important discretionary power. The Commission is required to make its own judgment as to the appropriate representation of any particular class or group of employees. It must take into account any relevant agreement, as one factor in its decision, but the terms of an agreement can never be determinative. The Commission is not to be reduced to the parties' rubber stamp. It follows that everybody concerned in the matter should have been aware that, notwithstanding the agreement, there was always a possibility that the Commission would see the matter differently and make a s.118A order that disturbed the current position regarding representation of administrative and clerical employees. The time for the prosecutors to put their case for remaining represented by the Federated Clerks Union and/or the State Public Service Federation, if that was what they wanted to do, was when the main hearing was underway well before August 1993.

The second general point we wish to make is that ordinarily the Commission will be acting reasonably and in accordance with the dictates of natural justice if it relies on registered organisations to represent the interests of their members.  That does not mean that the position taken on an issue by an organisation will always accord with the view of every member; on the contrary, there will often be a diversity of opinions among members on an issue.  But it is a recognition of the fact that the rules of registered organisations are required to provide for their democratic control by members; so by and large it can be said that the position taken by an organisation on an issue is likely to reflect the opinion of a majority of those of its members who are concerned with the issue.

Although it is always open to the Commission to allow individual members to intervene in proceedings before it, the Commission is entitled to look to organisations for guidance as to their members' wishes.  In practice, it would be extremely difficult for the Commission to operate on any other basis.  Proceedings before the Commission would become chaotic if groups of individuals were entitled to intervene and have the Commission revisit decisions already reached with the participation, or even agreement, of the organisation of which they were members.

In the present case the Commission gave the prosecutors leave to intervene for a limited purpose:  to speak to the substance and form of the order.  The Commission was not bound to do this but we respectfully think it was sensible for it to do so because the prosecutors were obviously unhappy about the agreement their union had by then reached with the maritime unions.  The Commission was certainly not bound to do more than this; to permit the intervenors to wind back the clock and force re‑examination of decisions already made.  There is no suggestion that the intervenors were prevented from putting material before the Commission concerning the substance and form of the award, so there was no denial of a hearing in relation to the subject they were permitted to address.  The claim that they had a right to do more is untenable.  The application must be dismissed.

I certify that this and the preceding fourteen (14) pages
are a true copy of the Reasons for Judgment of the Court.

Associate:

Dated:     20 March 1995

APPEARANCES

Counsel for the Applicants/Prosecutors:        P J Cook

Solicitor for the Applicants/Prosecutors:  Greg Hocking & Associates

Counsel for the Second and

Third Respondents:  R C Kenzie QC and S Crawshaw

Solicitor for the Second and

Third Respondents:  Jones Staff & Co

Date of hearing:  20 March 1995