T12822
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Crossroads Civil Contracting Pty Ltd and Construction, Forestry, Mining and Energy Union, Tasmanian Branch
Appeal against a decision handed down by Deputy President Shelley arising out of T12546 of 2006 - Appeal rejected - Decision and Order confirmed REASONS FOR DECISION [1] This is an appeal against a decision of Deputy President Shelley in Matter T12546 of 2006. [2] In her decision the Deputy President ordered that:
[3] The grounds of appeal are:
[4] Appeal grounds 1-5 (as above) [5] It was submitted by the appellant that "appeal ground 1 is the most important ground because if we do not succeed in respect to ground 1 then the following grounds also fail."1 [6] The appellant challenged the standing of the CFMEU to make the application the subject of the Deputy President's decision. [7] It was submitted by the appellant that the CFMEU was an organization registered as prescribed by Part V of the Act [Registration of Organizations] and is therefore able to make applications pursuant to s.65(a). Further it was submitted that s.29(1) provides for an organization to make application to the Commission in respect to an industrial dispute and therefore the CFMEU is able, by reference to s.65 [Effect of Registration], to make an application for a hearing in respect to an industrial dispute. [8] S.65 prescribes:
[9] The appellant argued that although the CFMEU was able to make applications pursuant to s.29(1) of the Act such applications are "confined to members of the union and the reason we say why it is confined in such a way is because of the statutory provisions that deal with how in fact you obtain registration."2 [10] S.63 [Registration of associations] prescribes (where relevant):
(a) an application stating - (i) the name of the association; (ii) the eligibility for membership of the association; (iii) the occupational groups constituting its membership; (iv) the number of its members in Tasmania; (v) the address of the office of the association; (vi) the office bearers of the association; (vii) the awards or registered agreements, or both, which apply to its members; and (viii) the name of the person who is empowered by the association to submit claims to the Commission for an award, and, if applicable, to apply to the Commission for the approval of an industrial agreement or enterprise agreement, and to appear before the Commission; and (b) a copy of its rules or constitution.
(i) that an application received by him under subsection (1) is made in accordance with that subsection and the rules or constitution of the applicant; (ii) that the applicant is an association that complies with section 62(1)(a) or (b), as the case requires; (iii) by the rules or constitution of the applicant that it is an association of employers or employees with power to represent the interests of those employers, or those employees, in Tasmania with respect to industrial matters; (iv) that the awards or registered agreements, or both, stated in its application pursuant to subsection (1)(a)(vii) apply to members of the applicant or that its membership consists of or includes members who are employers or employees in an industry or occupation in respect of which an award could be made or an industrial agreement or enterprise agreement could be entered into, or who are State employees to whom an award could relate, and that membership is consistent with the rules or constitution of the applicant submitted to the Registrar under subsection (1)(b)-
(b) shall, if he is not so satisfied, refuse to grant that application." [11] The appellant submitted that the correct interpretation of s.63(3)(a) was that "the rules or constitution of the CFMEU must contain a power to represent its members in Tasmania with respect to industrial matters." [12] Further it argued that if the pre-conditions for registration are not met as required by s.63 then the powers conferred by s.65 do not arise. We agree with that part of the submission. [13] Further the appellant submitted that reference to s.67(7) would conclude that an organization, in this case the CFMEU, is confined to an industrial dispute affecting one of its members. [14] S.67 of the Act deals with Alterations to rules or constitution of organizations and requires an application to the Industrial Registrar to consider an alteration to the rules in respect to eligible members. The section also addresses an application which would remove the power to represent the interests of an organization's members in Tasmania with respect to industrial matters. It would then require the Registrar to apply for cancellation of the organization's registration [s.68]. It is unclear what reliance the appellant places on these sections of the Act as they seem unrelated to its argument. There was no challenge before the Deputy President or before us that the CFMEU no longer has the power to represent its members in Tasmania. [15] The appellant argued that "....the reason why organizations are registered under the Act is to represent its members and that is the first part, and the second part in respect to matters that affect their members. That is the whole essence of registration."3 Further that if an organization, in this case the CFMEU, can "...go out into the market place, leaving aside the issues of any demarcation dispute and say - We will pursue any industrial pursuit on your behalf. As a matter of common sense we submit that simply cannot be right."4 [16] It seems that the appellant's challenge is to whether or not the individual being represented by the CFMEU in the hearing below is, or was at the relevant time, a current and financial member of the CFMEU. [17] It was submitted that "there is no internal conflict between the operation of s.65(c) and ss 29(1) and 28." [18] The appellant said that the issue before the Full Bench was a most important issue as it requires a clear indication from the Full Bench that there is some restraint on a registered organization in respect to the types of applications they can make to the Commission. In this matter it was argued that the CFMEU did not have standing to make the application it did pursuant to s.29(1) of the Act on behalf of Mr Bailey as it did not discharge its obligation to demonstrate that Mr Bailey was a member of the CFMEU. [19] The appellant argued that the onus rested with the CFMEU to demonstrate that it had standing to lodge the application it did and that proof of union membership is a pre-condition for the CFMEU to make such application. [20] It was argued by the appellant that ss. 63 and 65 should be read together and that if the pre-conditions for registration under s.63 are not met then the powers conferred by s.65 do not arise. We have previously agreed with that submission however there was nothing before the Deputy President or before us that claimed that the pre-conditions of s.63 were not met in the registration of the CFMEU as an organization able to exercise certain rights under the Act. [21] The appellant argued in respect to the limited challenge to Mr Bailey's membership status that it was not a matter to be pursued in cross examination as the Deputy President had made a ruling that he was in fact a member of the CFMEU. Likewise no request was made to the Deputy President to view the relevant membership documentation provided to her by the CFMEU and on which she determined that Mr Bailey was a member. The appellant was asked why it did not request the Deputy President for access to the documents provided in respect to Mr Bailey's membership. It submitted that such an issue was a trivial point that should not be held against the appellant. It was argued that the onus to discharge rested with the CFMEU and it was not acceptable for the Deputy President to make a finding that Mr Bailey was a member on the basis of documents provided to her without providing the appellant with those same documents to which it claimed entitlement. It was submitted that such a practice is not consistent with the provisions of the Act. We reject that part of the appellant's submission. [22] The appellant relied on a number of other arguments in respect to appeal ground 1. They are as follows:
[23] It was submitted by the respondent that the argument by the appellant in respect to the CFMEU's capacity to make the application below is misconceived and involves a misconstruction of the provisions of the Act. [24] The respondent argued that the submission of the appellant, which seemed to imply that an entitlement to make an application in the absence of an entitlement to appear in the proceedings, was inconsistent with the terms of the Act and was a "tenuous chain of reasoning." In effect what the appellant argued was that a "general provision relating to appearance qualified every application that could be made under the Act." [25] In considering statute construction the respondent relied on the authority of a decision of Refrigerated Express Lines (A'sia) v Australian Meat and Livestock Corp (1980) 29 ALR 333 at 347 where it was said:
[26] The respondent noted that in the proceedings below the issue of union membership was raised as a threshold matter on similar grounds as those raised on appeal. The Deputy President refused the application for discovery of documents and determined that she would provide reasons when the proceedings had been completed. The appellant then sought an adjournment to allow it to file an application for review under the Judicial Review Act, 1994. The application for adjournment was refused and the issue was not raised again in the proceedings below. It was also noted that Mr Bailey, the member for whom the CFMEU appeared, was not examined as to his union membership nor was any evidence presented which questioned his membership status. [27] The appellant complains in appeal ground 1 that the Deputy President "...erred in law and in fact in failing to determine the issue of whether it was a pre-condition to the filing of an application pursuant to Section 29(1) of the Industrial Relations Act 1984 that John Bailey was a member of the Construction, Forestry, Mining and Energy Union, Tasmanian Branch." [28] We reject the claim and note that the Deputy President said at para 27 of her decision:
[29] We agree with her finding. [30] S.65 "Effect of registration" prescribes certain rights to an organization in receipt of a certificate of registration issued by the Registrar. Amongst other things, and "subject to this Act" a certificate allows an organization "to make applications to the Commission pursuant to this Act" and to "appear in proceedings before the Commission with respect to an industrial matter affecting the members of the organization." S.65 does not limit the rights of the organization to only appear in an application it has itself made nor does it prescribe that the organization can only represent a person declared to be a financial member. An organization can appear in a matter, the pre-condition being that it is an industrial matter "affecting the members of the organization." [31] A dispute alleging a breach of an award or an agreement is a matter "affecting the members of the organization". [32] In respect to the additional contentions provided by the appellant at paragraph [22] of this decision we are of the view that those contentions do little more than spell out what is permitted under the terms of the Act. The rights and benefits of being a registered organization under the Act are prescribed in the Act, an unregistered organization has no such benefits or rights. [33] We address each of the arguments:
[34] The appellant concedes that there is no impediment on the CFMEU, as a registered organization, to make applications to the Commission pursuant to s.29(1) of the Act in respect to an industrial dispute.5 It is also conceded that an industrial dispute relates to an industrial matter which in this case refers to an alleged "breach of an award or a registered agreement." [35] We are of the view that Part V of the Act deals with, and is titled, Registration of Organizations. The Act from s.62 to s.68 prescribes the process and requirements for such registration of an organization. S.62 details the qualifications for registration (for employer or employee organizations) and in respect to an employee association, there is a requirement "of not less than 20 employees in Tasmania." [36] The application for registration must state (amongst other things): · eligibility for membership; · occupational groups constituting membership; · number of members in Tasmania; · copy of the rules and constitution. [37] Nothing in the legislation requires the identity of a member or members. [38] Provided the Registrar is satisfied all of the requirements for registration are met, including those noted above, then an organization will be so registered. There was no submission by the appellant that the CFMEU is not a registered organization under the Act. [39] In essence the appellant argued that the onus rested with the respondent in this matter to demonstrate that the individual on whose behalf it pursued the claim was at all relevant times a financial member of the CFMEU. The appellant argued that the respondent had failed to satisfy such onus. [40] We disagree that any such onus rested with the respondent to prove individual membership. The constitution and rules of the CFMEU is the relevant source document which would reveal whether or not the CFMEU was acting in accordance with its rules. The constitution and rules of the CFMEU were never referred to in this matter. [41] A pre-condition of registration is found at s.63(3)(a)(iii) which prescribes:
[42] We are satisfied that the Deputy President did determine that it is not a pre-condition for an organization, be it representing employers or employees, to demonstrate that an applicant being represented is a financial member of that organization at the relevant time. We find no error by the Deputy President. [43] We reject appeal ground 1. [44] The appellant submitted that if appeal ground 1 was not successful then the following four grounds would also fail, accordingly we do not need to deal with appeal grounds 2,3,4 or 5. [45] Appeal ground 6
[46] The appellant submitted that the Deputy President had erred by disregarding the submission of the appellant in respect to the inconsistencies in the evidence of Mr Johns on the basis that during cross examination such inconsistencies were not brought to his attention. It would seem that the inconsistencies in the evidence relate to two different applications and the Deputy President in this matter found that in respect to the specifics of this matter Mr John's evidence "....was that he recorded all of Mr Bailey's hours and his wages were paid on those hours only."6 [47] The inconsistencies relied on by the appellant were not put to Mr Johns and were not in respect to the matter before the Deputy President although we note that the transcript for the other matter was accepted as evidence in the matter below. [48] The difficulty confronting the Deputy President was the failure of the appellant to lead any evidence or to produce any wage records. In fact there is some argument as to whether any wage records exist or existed at the time of the claim being made. The appellant adopted the position that to do so was unnecessary as the onus of proof rested with the applicant in the matter below to establish the claim. [49] The appellant relied on the evidence of Mr Johns in another matter as to whether Mr Bailey was a casual employee or not. That matter related to a claim against the appellant by Mr Johns in matter T12268 of 2005. That decision was appealed7 and we note that the Full Bench in that appeal made the following comment:
[50] Accordingly we place little weight on the submission of the appellant in respect to the evidence of Mr Johns as to Mr Bailey's employment status. [51] The sworn evidence of Mr Bailey was unequivocal that he was a full time employee, albeit he admitted to little knowledge of his employment entitlements. He said in response to a question in cross examination:
[52] The contentious issues of the evidence could well have been addressed by production of wage and salary records. The appellant chose not to produce those records, presuming they exist, and did not seek to call any witnesses in support of its position or to rebut the evidence of Mr Bailey. The Deputy President therefore had to rely on the sworn witness evidence and documentation provided by the respondent. [53] As noted by the respondent His Honour Justice Sheldon in Ray v Radano [(1967) 67 AR 471] said in respect to an employer's obligation to maintain relevant statutory wage records:
[54] We find no error by the Deputy President. She had the benefit of hearing the evidence at first incidence and was satisfied that "The pattern of employment outlined in the records and in the verbal evidence shows a regular and systematic pattern of employment, notwithstanding times of stand-downs due to weather and other factors. Mr John's unchallenged evidence was that the asphalt crew worked 8 to 12 hours a day, five days a week plus weekends when needed."10 [55] The Deputy President based her findings on the evidence. We find no error in her findings. [56] We reject appeal ground 6. [57] Appeal ground 7
[58] Appeal ground 7 is no more than a statement of an "axiomatic legal principle" according to the respondent and is not a legal error as claimed. Nor does the statement have any bearing on the outcome of the case. We agree with the respondent and do not find it necessary to deal with the appeal ground. In fact it was more or less agreed that had the word "generally" not been used by the Deputy President then the statement would "have led to no injustice". [59] We reject appeal ground 7. [60] Appeal ground 8
[61] This is a further reference to the claimed inconsistencies in the evidence of Mr Johns which we have dealt with in our response to appeal ground 6. We are satisfied that the Deputy President considered the inconsistencies and applied appropriate weight. [62] We reject appeal ground 8. [63] Appeal ground 9
[64] We doubt that the decision of a party not to bring any evidence to either support or oppose an application could be considered "irrelevant". The Deputy President had only the witness and documentary evidence of the respondent to consider when making a determination of the matter before her. As she noted no evidence was brought in rebuttal of the claim. A party must be provided with the opportunity to be heard, having been so provided it is the choice of a party how it will then presents its case. If it presents no evidence that position is taken into account. The Deputy President has done no more than comment on the lack of evidence provided by the appellant in the hearing below. [65] Of course a party can adopt the position that an applicant has failed to make out a case and decide not to present any evidence to rebut a claim. However the failure to lead any evidence would be relevant to the determination of the matter. Such an approach also risks inferences that may or may not be correct. [refer decision in Jones v Dunkel (1959) 101 CLR 298]. [66] We reject appeal ground 9. [67] Appeal ground 10
[68] The Deputy President considered the evidence of Mr Bailey and concluded that he was not sure about how, or who, recorded the hours he worked. The appellant has relied on a couple of responses extracted from some 26 pages of examination and some 31 pages of cross examination as to Mr Bailey's recollection of his availability or non availability on particular days and his recollection of worked performed or not performed on those days. His responses were varied as to particular days and circumstances but he responded a number of times that he could not state with absolute certainty one way or the other. [69] Again, the extensive examination and cross examination would have been unnecessary had wage records been provided. [70] We agree with the finding of the Deputy President and detect no error. [71] We reject appeal ground 10. [72] This has been a most unusual appeal. In the matter below the appellant was of the view that it did not "...need to respond to a claim that is not on good ground."11 Further it was submitted "......that is our defence that we don't need to bring evidence, we don't need to do that because we say on the basis of the evidence that has been put that the application is not on good ground...."12 The appellant also confirmed that the wage records had been destroyed as advised by Workplace Standards and in accord with s.75(2) of the Act which prescribes:
[73] The Deputy President had little option but to rely on the sworn evidence and documentation presented on behalf of Mr Bailey in the absence of any evidence put by the appellant. [74] Further the major and substantial objection of the appellant to the matter proceeding was addressed on the first day of hearing, that matter related to the ability of the CFMEU to lodge an application on behalf of Mr Bailey and to appear in the proceedings on his behalf. We have dealt with and rejected the argument of the appellant earlier in this decision but note that no further objection was raised throughout the proceedings or in final submissions in the hearing below. Nor was Mr Bailey questioned as to his membership status in the matter before the Deputy President. [75] We reject the appeal and confirm the decision of the Deputy President in this matter. Payment is to be made no later than 21 days after the date of this decision. ORDER The Commission hereby orders pursuant to s.31 of the Act that Crossroads Civil Contracting Pty Ltd pay Sixteen Thousand Four Hundred and Eighty Dollars and 25 Cents in settlement of all claims in Matter No T12546 of 2006 SAVE AND EXCEPTING FOR the claim in relation to superannuation AND THAT Crossroads Civil Contracting Pty Ltd pay superannuation contributions on the amount herein ordered such payment to be made to a fund nominated by John Bailey AND THAT all payments herein are to be made by 5.00pm on Wednesday, 23 May 2007. P L Leary Appearances: Date and place of hearing: 1 Transcript PN25
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