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 party to a proceeding before the Court in a matter arising under the Act may appear in person.  Section 469(2) deals with representation.  The subsection states:   

"Subject to this and and any other Act, a party to a proceeding before the Court in a matter arising under this Act may be represented only as provided by this section."

Provision is then made for representation by various people.  The provisions include subs.7 which provides some exceptions, that:

"Subject to subsections (8) and (9), a party other than an organisation or employing authority may be represented by:

(a)an officer or employee of the party; or

(b)a member, officer or employee of an organisation of which the party is a member, or

(c)an officer or employee of a peak council to which the party is affiliated; or

(d)an officer or employee of a peak council to which an organisation or association of which the party is a member ... ."

This provision enables representation of a party by an officer of an "organisation".  However, that does not cover the present case because the word "organisation" is defined in s.4 of the Act as meaning "an organisation registered under this Act", and Ausgroup Services Employers Association is not registered under the Act.  It follows that an officer of Ausgroup Services Employers Association has no general right to appear in proceedings in the Court under the Act.  However, s.170JEA which was added to the Act on 30 June 1994, makes specific provision for representation in proceedings under Part VIA of the Act.  The section is in this form:

"170JEA.Without limiting the operation of paragraphs 42(7)(b) and 469(7)(b) an employer that is a party to a proceeding under this Part before the Commission or the Court may be represented by a member, officer or employee of an association of employers of which the employer is a member."

It will be noted that this provision does not require that the officer be an officer of an "organisation" as defined, that is a registered organisation.  It is sufficient that the person be an officer of "an association of employers".  That term is not defined in the Act, either within part VIA or generally.  Under those circumstances it is appropriate to give it its normal meaning; an association of people or companies who are in fact employers and who associate together in that capacity.  Ausgroup Services Employers Association meets that criterion.  It constitution provides that it is to be comprised "of an unlimited number of members who are employers within Australia".  This means that only employers are eligible for membership of the association. Furthermore, the objects of the association are objects referable to members' conduct as employers rather than their conduct in any other capacity.

I think that the association meets the description set out in 170JEA.  As Mr Davies is currently an officer of the association, by virtue of his election as a vice chairperson, he is a person entitled to appear pursuant to s.170JEA in respect of proceedings under Part VIA.  He does not have a general right of appearance in respect of matters outside Part VIA.  However, I understand that the subject proceeding falls solely within Part VIA; so I think there is no difficulty about this case.  I rule he is entitled to appear for the employer in this matter.  I refer the matter back to the Judicial Registrar with that indication.

I certify that this and the preceding five (5) pages
are a true copy of the Reasons for Judgment
of Chief Justice Wilcox.

Associate:

Dated:     8 September 1995

APPEARANCES

Solicitors for the Applicant:       Milios & Co

Counsel for the Respondent:         D Davies & R Crowe

Solicitors for the Respondent:  Ausgroup Services Employers Association

Date of hearing:  8 September 1995