Tzimos v Tempo Services Pty Ltd - [1995] IRCA 584

IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY) No. NI. 95/2406

BETWEEN:ANNA TZIMOS

Applicant

AND:TEMPO SERVICES PTY LTD

Respondent

CORAM:    WILCOX CJ
PLACE:    SYDNEY
DATE:        8 SEPTEMBER 1995

EXTEMPORE REASONS FOR JUDGMENT

WILCOX CJ: Judicial Registrar Patch has referred to me a question that arose in a directions hearing conducted by him. The question concerns the entitlement of Mr D Davies to appear, on behalf of the respondent employer, in a proceeding pursuant to Division 3 of Part VIA of the Industrial Relations Act 1988.

Mr Davies put material before the Court establishing the formation of an association called "Ausgroup Services Employers Association". This association was constituted at an inaugural meeting held on 5 June 1989. There were five people present, representing various companies or firms. They resolved to form an association to be known as Ausgroup Services Employers Association and to adopt a constitution and set of rules. Provision was made for the payment of a membership subscription and it was decided that the inaugural members of the association comprised the members represented at the meeting together with any who lodged a membership application within seven days. Four officers were elected. They included Mr Davies. He was elected as one of two vice chairpersons.

The constitution and rules of the association are now before the Court. Clause 1 provides that the association shall be comprised of a limited number of members who are employers within Australia. Clause 2 states the name: "Ausgroup Services Employers Association". Clause 3 specifies location of the association's office. Clause 4 deals with the provision of administrative services for the association. Clause 5 sets out the objects of the association: Clause 6 provides:

"Any individual, firm, partnership, authority, company or incorporation who or which is an employer within Australia shall be eligible for election, or in the case of a corporation, appointment as a member of the Association."

Clauses 7, 8 and 9 deal respectively with admission to membership, withdrawal from membership and termination of membership. Clause 10 provides that the members are not partners. Clause 11 deals with subscriptions and levies. Clause 12 provides that the officers of the association shall comprise a chairperson, two vice chairpersons and an honorary secretary. The remaining clauses deal with machinery matters.

Mr Davies has put before the Court a list of nine current members of the association, all of whom are said to be employers. They include some companies that carry on substantial operations and, presumably have a large number of employees.

Mr Davies' submission is that Ausgroup Services Employers Association is "an association of employers", and that, being an officer of the association, he is entitled to appear on behalf of any member. The respondent in the present case, Tempo Services Limited, is a company included on the list of members of the association.

It seems to me that Mr Davies' submission is correct. The primary provision regarding representation under the Industrial Relations Act is s.469. Section 469(1) provides that a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1995] IRCA 584
Decision Date: 08 September 1995

CaseChat Overview and Summary

In the case of Tzimos v Tempo Services Pty Ltd, the applicant, Anna Tzimos, filed a proceeding against Tempo Services Pty Ltd in the Industrial Relations Court of Australia, New South Wales District Registry. The core issue revolved around the eligibility of Mr D Davies, an officer of an association called Ausgroup Services Employers Association, to represent Tempo Services Pty Ltd in proceedings under Division 3 of Part VIA of the Industrial Relations Act 1988. Mr Davies contended that as an officer of an association of employers, he was entitled to appear on behalf of any member of the association, including Tempo Services Pty Ltd.

The court needed to determine whether Mr Davies, as an officer of Ausgroup Services Employers Association, had the right to represent Tempo Services Pty Ltd in the proceedings. This required a detailed examination of the provisions of the Industrial Relations Act, particularly sections 469 and 170JEA, and the constitution and rules of Ausgroup Services Employers Association. The primary legal issue was whether Ausgroup Services Employers Association qualified as an "association of employers" under section 170JEA of the Act, and if Mr Davies, as an officer of this association, had the requisite standing to appear on behalf of Tempo Services Pty Ltd.

Chief Justice Wilcox found that Ausgroup Services Employers Association did qualify as an "association of employers" because it was constituted of members who were employers within Australia and its objects were referable to their conduct as employers. The court noted that the term "association of employers" should be given its normal meaning, which was an association of people or companies who are employers and who associate together in that capacity. The constitution of Ausgroup Services Employers Association specified that it was to be comprised of members who were employers within Australia, and its objects were related to the conduct of its members as employers. The court concluded that Mr Davies, as an officer of the association, was entitled to appear for Tempo Services Pty Ltd in proceedings under Part VIA of the Industrial Relations Act. However, he did not have a general right of appearance in matters outside Part VIA. The court ruled that Mr Davies was entitled to appear for the employer in this specific case, which fell solely within Part VIA.

Orders