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T5480

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s70 appeal against a decision

AWU-FIME Amalgamated Union, Tasmania Branch
(T5480 of 1995)

Roadmakers Award

 

FULL BENCH
DEPUTY PRESIDENT A ROBINSON
COMMISSIONER R J WATLING
COMMISSIONER P A IMLACH

22 September 1995

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:

1 Not properly determining the extent of the membership as presented by the CFMEU.

2 Not properly establishing which members presented by the CFMEU were subject to the provisions of the Roadmakers Award.

3 Rejecting the arguments advanced by the AWU in respect to:

      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.

4 Misunderstanding the arguments advanced by the CFMEU in respect to Award Restructuring at a National level.

Section 63 (10) (c) requires

    "that Commissioner shall determine which awards the organization has an interest in by satisfying himself that -

(i) the membership of the organisation consists of or includes members who are employers or employees in the industry or occupation to which the awards stated in its application pursuant to subsection (1) (a) (vii) relate or who are State employees to whom those awards relate; and

(ii) that membership is consistent with the organisation's rules or constitution a copy of which has been lodged with the Registrar pursuant to subsection (1); and

(iii) the organisation being granted an interest in an award or awards would not prejudice the orderly conduct of industrial relations in Tasmania."

The AWU in addressing each of the requirements of the Act submitted that:

  • As to Section 63 (10) (c) (i), the Commissioner did not give the AWU enough time to peruse the alleged list of members produced at the original hearing by the CFMEU and did not enquire into the matter of membership sufficiently to be able to satisfy himself as required.

  • As to Section 63 (10) (c) (ii) the AWU did not contest the Commissioner's conclusions, but sought to rely on the expanded coverage in the CFMEU's eligibility rule (as a result of its amalgamations with the Builders Labourers Federation and the Federated Engine Drivers and Firemans Association) to make the point that there was a potential to create industrial unrest between the two organisations because of the expanded eligibility rule of the CFMEU.

  • Also, as to Section 63 (10) (c) (iii), the absence of a demarcation agreement between the CFMEU and the AWU with respect to membership under the jurisdiction of the Award, meant that there could well be industrial discontent between the two unions if the CFMEU was granted interest.

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,

"... that a discretionary decision will not be interfered with or overturned unless it can be shown that the judge or the commissioner acted upon a wrong principle, was guided by irrelevant matters or mistook the facts." (TIC transcript page 38).

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:
Mr M Borowick with Mr G Cooper for AWU-FIME Amalgamated Union,
Tasmania Branch
Mr W Bodkin with Ms D Moncrieff for Construction, Forestry, Mining and
Energy Union, Tasmanian Branch

Date and place of hearing:
1995
June 23
Hobart

1 Reported in 55 - Commonwealth Law Reports at page 499