T5480
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 AWU-FIME Amalgamated Union, Tasmania Branch Roadmakers Award
Appeal against a decision handed down by Commissioner R K Gozzi on 11 April 1995 in matters T4190 of 1992 - Roadmakers Award REASONS FOR DECISION This was an appeal made under Section 70 of the Industrial Relations Act 1984 by the AWU-FIME Amalgamated Union, Tasmania Branch (the AWU) against a decision of Commissioner R K Gozzi, in matter T4190 of 1992, granting an interest in the Roadmakers Award (the Award) to the Construction, Forestry, Mining and Energy Union, Tasmanian Branch (the CFMEU). Commissioner Gozzi's decision was given on 11 April 1995. The grounds of the appeal were The Commissioner erred in his finding by:
a) the orderly conduct of Industrial Relations in the State of Tasmania; b) the significance of the absence of a demarcation agreement in respect to point (a) above.
Section 63 (10) (c) requires "that Commissioner shall determine which awards the organization has an interest in by satisfying himself that -
The AWU in addressing each of the requirements of the Act submitted that:
In response, the CFMEU maintained that the Commissioner had exercised a discretion and it was open to him to find that the three basic requirements of Section 63 (10) (c) of the Act had been satisfied. In this regard the CFMEU relied on the principles laid down in the 1936 High Court decision in House versus The King1 which were, inter alia,
The CFMEU referred to other related decisions to make the same point and submitted that such principles should be applied in this case. The CFMEU pointed out that the appellant's main argument related to the orderly conduct of industrial relations (Section 63 (10) (c) (iii)), but, at no time had the AWU produced any evidence of this if the CFMEU were to be granted the interest sought. The CFMEU said that the AWU's submissions in this area were speculative (as found by Commissioner Gozzi) whereas solid evidence was needed. The same argument applied to the AWU's submission that overlapping membership coverage would prejudice orderly conduct. Further, the CFMEU relied upon its original submission which emphasised that there had been no history of major demarcation disputes in Tasmania in the area covered by this Award and this had been recognised by the AWU. In such circumstances it was reasonable and proper for the Commissioner to use his discretion and grant interest in the Award to the CFMEU. As to the question of the alleged denial of procedural fairness relating to the computer list of CFMEU members, it was the submission of the CFMEU that the AWU could have sought stricter tests and clearer evidence at the relevant time had it wished, but it did not. The CFMEU argued that the onus of satisfying the Commission in this matter was heavier on the objector, the AWU, than on the CFMEU and said the AWU had failed to satisfy the onus because its arguments were speculative. The AWU's final submissions in reply, by agreement between all parties, were made in writing some time after the close of the hearing and they have been taken into consideration. Decision In deciding this matter we agree with the CFMEU's submission that the principles enunciated in House versus The King are appropriate and relevant to be applied in this matter. We note the submissions of the AWU in respect to the alleged denial of natural justice in that they were only given "a glance" at the computer list of members produced in the original hearing by the CFMEU. It is not uncommon for the Commission to require applicants for award interest to produce relevant original signed membership application forms and ledgers showing payments of fees, especially in the face of objections from other parties. However we reject the AWU's submission on this point because, at the time they did not challenge the list of members presented by the CFMEU nor did they request the Commissioner to require stricter and more detailed evidence. In that respect it could hardly be said that they were denied reasonable access. Given the foregoing we find that it was within the discretion of Commissioner Gozzi to find that it was mere speculation to say expanded eligibility coverage and the absence of a demarcation agreement would cause industrial unrest. Accordingly we find that the grounds 1-4 of the appeal lodged by the Appellant have not been established and the appeal is dismissed.
Appearances: Date and place of hearing: |