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T8638

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.70(1) appeal against an order

The Australian Workers' Union, Tasmania Branch
(T8638 of 1999)

and

Pasminco Australia Ltd, trading as Pasminco Rosebery Mine

 

FULL BENCH:
PRESIDENT F D WESTWOOD
DEPUTY PRESIDENT B R JOHNSON
COMMISSIONER P L LEARY

HOBART, 9 March 2000

Appeal - order by Commissioner Imlach in matter T8441 of 1999 issued on 3 September 1999 - appeal dismissed - decision of Commissioner Imlach confirmed

REASONS FOR DECISION

The appellant in this matter is The Australian Workers' Union, Tasmania Branch (AWU). On 31 May 1999 the appellant applied to the President pursuant to Section 23 of the Industrial Relations Act 1984 to vary the Pasminco Rosebery (Mining) Award for the purpose of inserting the following new clause:

    "33   Work Done Through Contractors

    (a) Pasminco shall not permit any operation of function or employment of any classes of work to be carried on, exercised or entered into by any contractor or other person on behalf of the employer, except in accordance with the terms and conditions of this Award as if the contractor or other person were bound by this Award.

    (b) Pasminco shall not enter into any contract for the carrying on of any of the work covered by this Award by means of employees unless the contract contains a clause binding the contractor to pay the rates and observe the conditions herein prescribed in respect of the work contracted for."

    After hearing the parties Commissioner Imlach dismissed the application on the grounds that the matter was outside the Commission's jurisdiction because, in brief, it sought "to regulate the Company's relationship with others who are not its employees".1

    It is from that decision that the AWU now appeals.

    Contentions-S Taglieri for the appellant:

    Background

    There is a long and entrenched history of agreement between the appellant AWU and the respondent Pasminco Rosebery Mine regarding engagement of contractors at the Rosebery site. The substance of their agreement was that the Company would engage contractors on the same or similar conditions to those that applied to its own employees. The parties reached that agreement contemporaneously with their negotiation of the Pasminco Rosebery (Mining) Award. Although the award did not specifically include the agreement, the parties always intended that it should be part of the overall package of award regulation.

    The parties adhered to the terms of the agreement for most of the present decade. However, about March this year the respondent made it clear that the Company would no longer abide by the agreement. Instead, the respondent said that the Company would engage contractors on different conditions from those that applied to it employees. The AWU's response, ultimately, was to apply to the Commission to vary the Pasminco Rosebery (Mining) Award to incorporate the agreement. That was the application heard by Commissioner Imlach.

    Appeal Grounds 3 and 6

      (3) "That Commissioner Imlach erred in refusing or failing to allow the applicant to adduce evidence relevant to whether or not the Commission had jurisdiction to entertain the application before it pursuant to Section 23 of the Industrial Relations Act 1984 as amended."

      (6) "That Commissioner Imlach erred and was wrong in determining the application before him on jurisdictional grounds only before hearing all relevant evidence relating to the issue of jurisdiction and the merit of the application overall."

    The thrust of both grounds is that Commissioner Imlach failed to allow the appellant to adduce evidence in relation to matters that were critical to the question of whether the Commission had jurisdiction to hear and determine the application.

    The transcript of the hearing at first instance shows that there was confusion and debate as to the nature of proceedings. Ultimately, the Commissioner decided to determine the question of jurisdiction as a separate issue. In so doing, he informed Mr Flanagan, then appearing for the AWU, that "I certainly will not hear evidence from witnesses in relation to this matter".2 The appellant's submission is that the Commissioner's statement amounted to a refusal by him to allow any evidence to be taken in relation to the matter of jurisdiction.

    Sections 20(1)(a) and 20(4) of the Industrial Relations Act 1984-"Commission to act according to equity and good conscience"-specifically imposes on the Commission what is, in effect, an obligation to proceed in accordance with natural justice or procedural fairness. Those provisions would not exist in the Act if the intention of the legislature was that the Commission should not be bound by the rules of natural justice.

    Although the Act provides that the Commission may regulate its own procedure and is not bound by any rules of evidence, it is also well established at common law that the Commission must observe the requirements of natural justice-see, for example, the High Court case of Re Ludeke and others; Ex parte Customs Officers Association of Australia, Fourth Division (1985) 59 ALR 417 per Gibbs J (p. 421) and Deane J (p. 428).

    Commissioner Imlach did not determine the jurisdictional matter according to the rules of natural justice. That was because he failed to allow the AWU to put evidence before him in relation to whether or not the subject-matter of the application comprised an "industrial matter" within the meaning of the Act. Had he done so, the appellant would have adduced evidence going to job security, job losses occasioned as the result of the engagement of cheap contract labour and a potential for erosion of terms and conditions of employment and skill levels-all relevant issues for purposes of determining whether the application dealt with an "industrial matter".

    That is precisely the kind of evidence that the Australian Industrial Relations Commission allowed the parties to give in a similar matter in the federal jurisdiction-see Adelaide Women's Health Centre and Others v Australian Liquor, Hospitality and Miscellaneous Workers Union (1996) Print M9948. That case, which was put to Commissioner Imlach by the appellant, is a very good illustration of the need for the Commission to take evidence in matters such as the current issue for the purpose of properly determining, on a factual basis, the existence of an "industrial matter".

    Furthermore, the fact that Commissioner Imlach indicated his acceptance of the AWU's contention that the subject-matter of the application was relevant to the employer/employee relationship, because it affected job security, led Mr Flanagan into a false sense of security. That is because, at the end of the day, the Commissioner's decision did not turn on that point at all. In the circumstances, it was incumbent on Commissioner Imlach to give the AWU's advocate an opportunity to fully understand that he did not intend to base his decision on that issue, but on another issue, i.e. the structure of the Act.

    Finally, in relation to Commissioner Imlach's personal knowledge of the background of the present matter and other industrial issues at Pasminco, it was not proper for the Commissioner to rely on such knowledge if the relevant facts were not in the evidence before him. It was not open to him to assume certain facts as a basis for his decision.

    In the present case, all Commissioner Imlach had before him were the parties' submissions, none of which were given under oath. Consequently, they did not constitute evidence on which the Commissioner could make a finding on jurisdictional grounds. In adopting the respondent's submissions and assertions as to what they perceived would be the effect of the proposed variation, rather than taking evidence of the relevant facts that surrounded the application, the Commissioner erred.

    Appeal Ground 7

    "That Commissioner Imlach erred in failing to give any reasons or any adequate reasons for finding and concluding that the application before him sought to impose conditions on the company's ability to freely contract with an outside third party, when there was no evidence at all before him in relation to such a finding."

    The obligation of a tribunal such as the Commission to give reasons as part of an overriding duty of fairness was clearly recognised by the Australian Industrial Relations Commission in Confectionary Workers Union of Australia v Australian Chamber of Manufactures (1991) 38 IR 49. Since the functions and procedures of the Tasmanian Industrial Commission are similar to those of its federal counterpart, there is no ground for supposing that the State Commission does not have a similar duty-as suggested by a decision of the then Tasmanian Industrial Appeals Tribunal in FIA v The Electrolytic Zinc Company of Australasia Ltd (23 June 1983).

    The Industrial Relations Act 1984 also recognises the requirement for this Commission to give reasons. For example, in relation to applications for awards, Section 37(3) of the Act provides that where the Commission refuses to make an award it "shall make a written statement of the reasons for its decision". It is arguable that, by implication, Section 37(3) can also apply to applications to vary awards.

    It is incumbent upon any decision-maker to give reasons for his or her decisions. That is because there is an entitlement in the parties to be able to ascertain the basis upon which their case failed and whether that basis was legitimate. In the present case the reasons that Commissioner Imlach purported to give for his decision are not reasons or not adequate reasons. For example, the Commissioner held that the appellant's application:

    "... seeks to impose conditions on the Company's ability to freely contract with an outside third party and hence the subject-matter of this application does not come within the relationship between the Company and its employees; it seeks to regulate the Company's relationship with others who are not its employees."

    Because there was no evidence before him on which he could base such a conclusion, as argued in respect of appeal grounds 3 and 6, this finding was not open to Commissioner Imlach. In neither that passage nor anywhere else in his decision did the Commissioner explain or give reasons for the conclusion that he reached. The appellant's contention is that the Commissioner gave no reasons because, having no evidence before him, he could not do so. Furthermore, it was not open for the Commissioner to draw inferences, as he appears to have done, in the absence of evidence. That he did do so constitutes an error of law-Sinclair v Mining Warden at Maryborough (174-1975) 123 CLR 473.

    The AWU also referred Commissioner Imlach to several decided authorities relevant to the issue of jurisdiction.3 The Commissioner dealt with those cases in the following manner:

    "The Union produced exhibits, in particular of federal decisions clearly accepting that a dispute between an employer company and its employees over its decision to employ contract labour in preference to its own employed labour did relate to the relationship between employer and its employees, that is, the subject was an 'industrial matter' as defined."

    Although he accurately summarised the thrust of the decisions, Commissioner Imlach made no attempt whatsoever to say if he accepted them as validly applying to the matter before him or distinguished them as having no application. The Commissioner's failure to address those matters constitutes an error of law.

    Appeal Grounds 4 and 5

      (4) "That Commissioner Imlach erred in finding or concluding that the Commission did not have jurisdiction to entertain the application before it pursuant to Section 23 of the Industrial Relations Act 1984 as amended."

      (5) "That Commissioner Imlach erred in failing to conclude that the Commission had jurisdiction and power pursuant to Section 23 to make an order to vary an existing award, the effect of which would be to overcome an industrial dispute."

    Section 19 of the Industrial Relations Act 1984 sets out the Commission's jurisdiction. In that regard, pursuant to sub-section 19(1), the Commission "has jurisdiction to hear and determine any matter arising from, or relating to, an industrial matter". In the circumstances, the fundamental question before Commissioner Imlach was whether the AWU's application related to an "industrial matter".

    Section 3 of the Act defines "industrial matter" as including "any matter pertaining to the relations of employers and employees" before it goes on to set out certain matters that specifically constitute an "industrial matter". That list is clearly not exhaustive. Indeed, it is apparent that the scope of the words "industrial matter" is very wide indeed. A consideration of the case law demonstrates that the current and commonly accepted interpretation of the term goes far beyond the unjustifiably narrow scope for which the respondent argued, without any supporting authority, in the proceedings before Commissioner Imlach.

    For example, in the Federated Clerks' Union of Australia and Another v the Victorian Employers' Federation and Others (1984) 154 CLR 472-a case that concerned power to make an award relating to technological change-the majority of the High Court held, in effect, that the concept of managerial decisions does not stand totally outside the area of what constitutes an "industrial matter". The case dealt with the jurisdiction of what was then the Industrial Relations Commission of Victoria. In that regard the relevant statutory expression contained an inclusive definition of "industrial matter" that was not dissimilar to the current Tasmanian definition. In the circumstances, the judgment is a strong authority in relation to the present matter. Courts and tribunals have approved and followed the FCU Case in numerous subsequent cases.

    In Re The Manufacturing Grocers' Employees Federation of Australia and Another; Ex parte The Australian Chamber of Manufactures and Another (1986) 160 CLR 341 the High Court considered the jurisdiction of the then Australian Conciliation and Arbitration Commission to entertain proceedings in relation to an industrial dispute that concerned superannuation. In that case, employer representatives argued that payment of superannuation contributions was not an "industrial matter" because the payments had to be made to a third party-superannuation fund trustees-which is beyond the relationships of employer and employee. The High Court, however, unanimously held that there was jurisdiction because it was a matter:4

    "... connected with the relationship between an employer in his capacity as an employer and an employee in his capacity as an employee in a way which is direct and not merely consequential ..."

    In Re Cram and Others; Ex parte NSW Colliery Proprietors Association Limited and Others (1987) 163 CLR 117, which was before Commissioner Imlach,5 the relevant legislative provisions there considered were, as to the meaning and definition of "industrial matter", similar to present Tasmanian legislation. The case is of particular importance in the current circumstances, because the factual issues then before the High Court were precisely the same as those that are now at issue in the case before this Commission. On those same facts the High Court held that a dispute about manning and recruitment was an "industrial matter" for purposes of the relevant legislation.

    The Adelaide Women's Health Centre Case6 was also before Commissioner Imlach.7 In that case a Full Bench of the Australian Industrial Relations Commission dealt with the issue of an employer's use of contractors and why contestability in that context does have an employer and employee relationship. The Full Bench said:8

    "On the facts and circumstances now before the Commission, we are satisfied that a dispute is capable of being generated by a union through a demand about the terms and conditions upon which the bidding is to take place, including the wages and conditions of employment of contractors. Not only does the terms and conditions of employment of contractors have an immediate bearing on the prospect of public sector employees retaining their own jobs but is likely to have an effect on the conditions of employment of other public sector employees."

    The facts of that case are similar to those of the present case-indeed, the wording of the log of claims is virtually identical to that of the AWU's proposed variation to Pasminco Rosebery (Mining) Award. In the federal case the Commission correctly concluded, in effect, that the basis upon which an employer engages a contractor does affect the employer's relationship with his or her employees.

    The appellant also put to Commissioner Imlach the decision of Commissioner Leary of the Australian Commission in The AWU-FIME Amalgamated Union v Alpine Australia Group Pty Ltd (1996).9 In that case, which also involved work done through contractors, the Commissioner accepted the line of authorities that commenced with the FCU Case and held that the matter before her was within jurisdiction.

    During the hearing at first instance, Commissioner Imlach appeared to distinguish "industrial matter" in the context of the dispute finding process of the federal industrial jurisdiction and "industrial matter" as referred to in the award making provisions of the Tasmanian Act. That distinction, with respect to the Commissioner, is entirely flawed. For all purposes of the Industrial Relations Act 1984 there is, in Section 3, one single definition of "industrial matter". There is no separate or distinct definition for award making purposes. Consequently, there was no basis at all upon which Commissioner Imlach could distinguish the federal cases put to him by the AWU.

    Commissioner Imlach also seemed to suggest that, while the facts surrounding the AWU's application might constitute grounds for an industrial dispute for purposes of Section 29 of the Act, they did not constitute an "industrial matter" for purposes of Section 23, i.e. award variation. That reasoning is also fatally flawed. There cannot be an industrial dispute within the meaning of the Act unless there is a finding that the dispute relates to an "industrial matter" as defined in Section 3.

    The Commissioner's observation that the Australian Commission requires a finding of dispute before it can proceed to make an award is correct. However, that has no bearing on whether the facts before him in relation to the AWU's application in this case constituted an "industrial matter" for purposes of the Industrial Relations Act 1984. In that regard, the only prerequisite to making or varying an award is an application that relates to an "industrial matter"-Section 32.

    It is true that Section 31(2) of the Act prohibits the Commission from determining an industrial dispute by way of an order that makes or varies an award. However, that it not what the AWU seeks to do. The Act does not prohibit dispute proceedings from running side by side with an application to vary an award-the two processes can co-exist in the Tasmanian jurisdiction. Very often, for example, the resolution of an industrial dispute may lie in the making or varying of an award to formalise agreements reached by the parties in the dispute process.

    In the present case the AWU's application is before the Commission pursuant to Section 23 of the Act. Nevertheless, there may well be a potential for an industrial dispute to arise in relation to Pasminco's use of contractors at Rosebery. That has certainly been the case in the past, as Commissioner Imlach noted. Those circumstances are illustrative of the fact that the matter of an employer's terms of engagement of a contractor constitute an "industrial matter" because the issue concerns the relationship between the employer and its employees. That is to say, the matter affects job security, the nature and level of manning, and the terms and conditions of employment. In the circumstances, it is illogical to say that, having regard to the definitions of "industrial dispute" and "industrial matter" in the Industrial Relations Act 1984, the issue of contract labour is an "industrial matter" for purposes of Section 29 but not for the purposes of Sections 23 and 32 of the Act.

    Concerning the structure of the Act as a whole, the respondent has been unable to advance any authority that is capable of supporting the contention that, so far as it concerns "industrial matter", there is a distinction to be made between sections of the Act that deal with disputes and sections of the Act that deal with awards. There is no provision in the Industrial Relations Act 1984 that makes such a distinction. It is true that the relevant sections appear under different headings, but that is only a matter of legislative form. There is nothing in the legislation that indicates an intention that "industrial matter" should mean different things for different purposes of the Act.

    While Section 33 of the Act deals with what the Commission may do in making an award, the provision is not all-inclusive. For instance, it does not confine the circumstances in which an award might be made-the words simply say that "The Commission may make an award in respect of all or any private employees employed in an industry" or "in respect of all or any private employees employed in an enterprise". In any event, the proposed amendment only seeks to vary an award that is already in existence in relation to Pasminco employees. That in itself creates the jurisdiction under Section 33 of the Act because it is a mere variation of existing rights, conditions and terms of employment of existing Pasminco employees.

    Appeal Grounds 1 and 2

      (1) "That Commissioner Imlach erred in finding or holding that the application dated 31 May 1999 to vary the Pasminco Rosebery (Mining) Award seeks to impose conditions on the company's ability to freely contract with an outside third party."

      (2) "That Commissioner Imlach erred in finding and holding that the application dated 31 may 1999 related to a subject matter which did not come within the relationship between the company and its employees; and sought to regulate the company's relationship with others."

    The long line of decided authority that commenced with the FCU Case10 establishes beyond doubt that managerial discretion is not totally outside the Commission's jurisdiction to entertain applications concerning industrial disputes or to make or vary awards.

    In the proceedings before Commissioner Imlach the respondent argued that the AWU's application did not constitute an "industrial matter" because it purported to inhibit the employer's ability to freely enter into commercial contracts with third parties. Those submissions misconceived the intent of the union's application. The AWU has no desire to prevent the employer engaging contractors-an attitude demonstrated by the fact that, for a number of years, it has agreed to Pasminco's use of contractors.

    What the union does seek to achieve, however, is job security and reasonable terms and conditions of employment for employees. That is because it is inevitable that the manner and terms of engagement of contractors to perform work within the employer's enterprise will affect the terms and conditions of employment of the employer's employees.

    Commissioner Imlach, in coming to his conclusion, appears to have been influenced by a number of the employer's submissions because, although he did not refer to them in his decision, he wholly adopted the employer's arguments. First, based on prior applications, the employer's advocate improperly drew inferences and made assumptions about the AWU's intentions regarding the present application. It was clearly not possible for that advocate, or any other person, to say what was in the minds of the union officials who decided to lodge the particular application. To the extent that Commissioner Imlach accepted or was influenced by those submissions, he erred.

    Second, the employer argued that the AWU's application did not fall within the scope of Section 33(1)(b) of the Act because it did not affect "all or any private employees employed in an enterprise". That submission is plainly wrong. Both paragraphs of the proposed amendment concern terms and conditions that will apply to work done under the Pasminco Rosebery (Mining) Award. Consequently, the amendment does not seek to compel employers, other than Pasminco, to engage labour in terms of the award-although that may be ultimately its consequence. The Commission might need to consider such an outcome when dealing with the merits of the application; however, it is not an issue of jurisdiction.

    Third, the employer submitted that the AWU's application, if granted, would create jurisdictional chaos and chaos in federal and State award relationships. Those issues, even if they are matters of merit, have nothing to do with the question of jurisdiction.

    Fourth, the employer argued that the application, if successful, would inhibit Pasminco's capacity to engage contractors on a commercial basis and thereby detrimentally affect the mine's economic position. That, too, may be a matter that is relevant to the merits of the application, but it is not a matter of jurisdiction.

    Finally, the employer relied on a 1992 decision of Commissioner Johnson of the Australian Industrial Relations Commission-Re applications by the State Electricity Commission of Victoria to vary the State Electricity Commission of Victoria Metal Industry Employees Award 1989 and Others11- in support of the proposition that, in a case concerning an employer's use of contractors, the Commission was not able to prohibit an employer from using contract labour.12 In that case, in which the applications were by consent and proceeded essentially on the same footing as that of the AWU in the present matter, the Commissioner decided that it was within his jurisdiction to grant the award variations sought. The basis of Commissioner Johnson's decision was that the award variations did not seek to prohibit the State Electricity Commission of Victoria from engaging contract labour. The AWU's application in these proceedings, similarly, does not seek such a prohibition.

    In that regard, a careful reading of the proposed new clause shows that it is a conditional prohibition and, as such, not a prohibition at all. It is merely a provision that seeks to maintain the terms and conditions of employment for existing Pasminco employees. That situation is evidenced by the fact that proposed sub-clause (a) contains the stipulation "except in accordance with the terms and conditions of this Award" and sub-clause (b) provides that "Pasminco shall not enter into any contract for the carrying on of any of the work covered by this award by means of employees unless the contract contains a clause binding the contractor to pay the rates and observe the conditions herein prescribed"-that is to say, prescribed in the Pasminco Rosebery (Mining) Award.

    The proposed award variation is not a blanket prohibition. The clause may be unfortunately expressed but, as the decided cases in the federal Commission show, a similar expression has been accepted on at least one other occasion.

    If the Commission as presently constituted accepts the appellant's submissions, or any of them, and finds that Commissioner Imlach erred, the matter should be remitted to another Commissioner, pursuant to Section 71(13) of the Act, for determination according to the law. That is because, in the appellant's view, there is insufficient material before the Commission to enable this Full Bench to determine the issue, either on jurisdictional grounds or on merit grounds.

    Contentions-H McKenzie for the respondent:

    The question at the heart of this appeal is whether the Commission, in exercising its powers under the Industrial Relations Act 1984, would be acting within jurisdiction if it were to vary the Pasminco Rosebery (Mining) Award in terms of the appellant's application. The answer to that question will essentially determine the appeal.

    When the matter came before Commissioner Imlach, in the form of an application made pursuant to Section 23 of the Act, the respondent raised the issue of jurisdiction at the outset. There was some discussion as to how the Commission should deal with the matter, with the AWU expressing an intention to proceed by calling evidence in relation to both jurisdiction and merit together. Ultimately, Commissioner Imlach determined that he would deal with jurisdiction as a separate matter. That was quite a proper approach for him to take.

    In these proceedings, in dealing with the way in which Commissioner Imlach approached the issue of jurisdiction, the appellant placed some emphasis on the Commissioner's failure to allow the AWU to call evidence. In order to fully understand the context in which the Commissioner reached his decision, this Bench must look at the way in which the matter proceeded prior to the point of his decision.

    After identifying the three grounds upon which the AWU based its application, Mr Flanagan informed Commissioner Imlach that he proposed to call four or, possibly, five witnesses. Mr Fitzgerald, for Pasminco, objected to that approach. He submitted that the Commissioner could not deal with the application because it was beyond jurisdiction. After some further discussion on the point, Mr Flanagan said he believed it was appropriate to call evidence because it was necessary for the Commission to hear that evidence before it could form a view in relation to jurisdiction. It was at this stage that Commissioner Imlach, following an adjournment, effectively determined that he would hear the jurisdiction question as a separate issue. The Commissioner's ruling gave rise to more discussion and another adjournment. Subsequently, apparently by agreement between the parties, Mr Fitzgerald put to Commissioner Imlach the employer's submissions regarding jurisdiction.

    In those submissions Mr Fitzgerald identified in some detail the grounds upon which Pasminco relied in support of its assertion that the Commission did not have power to deal with the AWU's application. In particular, he dealt with the implications of Section 33 of the Act (Power of Commission to make award in respect of private sector employment); the definition of "industrial matter" in Section 3 (Interpretation); and the Commission's general source of power as set out in Section 19 (Jurisdiction of Commission). In a jurisdictional sense, one of the clear grounds of objection that falls from Mr Fitzgerald's submissions is that the AWU's application seeks to regulate the relationship between Pasminco and a third party, ie contractors, rather than the relationship between the Company and its employees.

    In reply, Mr Flanagan identified, among other things, the nature of the evidence that the AWU sought to put to Commissioner Imlach, i.e. job security and the potential for industrial disputation. He submitted, in effect, that regarding the use of contractors, employees' perceptions about job security and the potential for industrial disputation comprised industrial matters within the meaning of the Act. Consequently, he argued, the Commission had jurisdiction to deal with the AWU's application.

    That approach is wrong. It entirely ignores the effect of Section 33 and, indeed, the whole scheme of the Act, which displays a very careful and deliberate separation between the Commission's dispute resolution powers and its award-making powers. That separation is the jurisdictional distinction that Commissioner Imlach attempted on several occasions to draw to Mr Flanagan's attention.

    In considering his approach, the Commissioner's decision needs to be looked at in context. Viewing the proceedings in their entirety, it is clear that the question of jurisdiction was well and truly on the table and Commissioner Imlach had identified the concerns he held regarding his powers under the Act. Furthermore, he had before him sufficient material upon which to properly decide the matter. In particular, the parties took him to the Act, which is the source of the Commission's power, and he had the AWU's application-the actual subject-matter of the proceedings. Commissioner Imlach also had the benefit of the parties' submissions as to how he should apply the Act to the application under consideration. He knew exactly what evidence Mr Flanagan wished to call and he was aware of the jurisdictional significance of the issues that the AWU wished to address. Accordingly, having heard the parties, the Commissioner was in a proper position to, first, consider whether he needed to hear the evidence and, second, to determine the issue of jurisdiction in the manner that he did. Commissioner Imlach came to the right decision.

    For purposes of this appeal the respondent concedes that there may be circumstances in which claims in relation to contractors are capable of falling within the definition of "industrial matter". That approach, however, ignores the other important jurisdictional question: Can the Commission make or vary an award in relation to such matters? Importantly, in that regard, Section 19 of the Industrial Relations Act 1984 expresses the Commission's general power "to hear and determine any matter arising from, or relating to, an industrial dispute" as being "subject to this Act".

    In that context there is an important distinction to be made between the federal and Tasmanian industrial jurisdictions. The federal legislation proceeds on the basis that, once an industrial dispute has been found to exist, the Commission may make an award in settlement or part settlement of that dispute. The federal Commission's award-making powers may be said to arise almost exclusively from the existence of an industrial dispute. That legislative scheme is quite different from the one enacted by the Industrial Relations Act 1984.

    Division 4 of Part II of the Tasmanian legislation deals with hearings for settling disputes. In that regard, in short terms, Section 31(1) of the Act empowers the Commission to make orders for the purpose of preventing or settling industrial disputes. Section 31(2), however, expressly prohibits the Commission from making an order "that makes an award or that varies or creates a provision of an award". That provision demonstrates a legislative intention to separate the Commission's dispute-settling power from its award-making power.

    Division 1 of Part III of the State Act deals with the power of the Commission to make awards, including related matters. That Part commences with Section 32, which concerns the subject-matter of awards. The enactment makes it plain that an award "may contain provisions with respect to any industrial matter". Section 33 of the Act, importantly for purposes of the current proceedings, sets out the Commission's jurisdiction to make and, by reference to Section 3, vary awards "in respect of private sector employment".

    It is clear from the terms of Section 33 of the Act that private sector awards can only apply in respect of private employees who are employed either in an industry or in an enterprise. The provision discloses an important restriction on the Commission's award-making powers: there must be in existence, in the case of an industry, employees in the common law sense who are employed in an industry or, in the case of an enterprise, employees who are in an employment relationship with an employer enterprise.

    Consequently, looking at the Act as a whole, the legislation regulates the content of awards in two ways. First, an award can only contain provisions with respect to an "industrial matter". Second, an award can only be made in respect of private employees employed either in an industry or in an enterprise.

    In reading the Act, the word "employees" should be assigned the normal legal meaning given to it in an industrial context; that is to say, it means persons employed under a contract of service. "Employees", as so used, cannot include persons, whether natural persons, partnerships or corporate entities, engaged or working under contracts for services. In the circumstances, Section 33 of the Act excludes the Commission from making an award containing provisions of the kind sought by the AWU in its application.

    Turning to the application itself, the proposed Work Done Through Contractors clause attempts to do two things. Paragraph (a) states that:

    "Pasminco shall not permit any operation of function or employment of any classes of work to be carried on, exercised or entered into by any contractor or other person on behalf of the employer, except in accordance with the terms and conditions of this Award as if the contractor or other person were bound by this Award."

    The provision seeks to impose a prohibition on Pasminco in relation to existing and proposed future arrangements regarding performance of work. The wording of the provision, i.e. "Pasminco shall not permit any operation of function or employment ...", shows that its terms are not confined to an employment arrangement. The provision does not attempt to define contractors by reference to their capacity as an employer; or to define the persons who are prohibited-or the work that is prohibited-by reference to their capacity as an employee. The provision does not in any way seek to describe itself in terms that would bring it within the scope of an employer/employee relationship.

    Paragraph (b) provides that:

    "Pasminco shall not enter into any contract for the carrying on of any of the work covered by this Award by means of employees unless the contract contains a clause binding the contractor to pay the rates and observe the conditions herein prescribed in respect of the work contracted for."

    The paragraph plainly confines itself to the carrying on of work by employees. However, it is directed to a clear prohibition on Pasminco from entering into any contract at all, if work is to be performed by employees, unless the particular contract effectively binds "the contractor to pay the rates and observe the conditions herein prescribed in respect of the work contracted for".

    The provision is also intended to be limited by reference to work covered by the Pasminco Rosebery (Mining) Award. That award, it should be noted, defines the employer as Pasminco Rosebery Mine and contains classifications for employees who are only employed by Pasminco Rosebery Mine.

    Upon looking at the terms of the AWU's application and the terms of the Act, it is clear that the Commission does not have jurisdiction to deal with the application. That was Commissioner Imlach's view.

    The Commissioner came to his decision fairly quickly, giving quite short reasons for his conclusions. In so doing, Commissioner Imlach relied on his own probably extensive knowledge of Pasminco's operations and the history of this dispute and others, which had been before him on previous occasions. The Commissioner cannot be criticised for his approach-he obviously understood very quickly what the dispute was all about.

    In any event, Commissioner Imlach's Reasons for Decision do contain sufficient explanation of why he declined to exercise jurisdiction. In his decision the Commissioner accurately summarised the course taken by the proceedings; he properly identified the jurisdictional issues put to him by Pasminco; he identified the key issue in the AWU's submissions, i.e. that the subject-matter of the application fell within the definition of "industrial matter"; and he referred to the authorities put to him by the AWU in support of that contention.13 Commissioner Imlach then went on to observe that:14

    "It is important to note at the outset that this application was made under Section 23 of the Act and, in conformity with that, it sought a variation to the Award by way of the inclusion of a new clause."

    Here the Commissioner is clearly focussing on what he sees as being the key issue, i.e. the proceedings concern an application to vary the Pasminco Rosebery (Mining) Award. He then continues:15

    "Whilst a dispute over the use of contractors by an employer could well provide jurisdiction for the Commission to conduct a dispute hearing through an application made under Section 29 of the Act ..."

    This statement is a recognition by Commissioner Imlach that, in certain circumstances, a dispute about matters such as those covered by the application could be within the Commission's jurisdiction. In effect, the Commissioner has taken into account the effect of the federal authorities referred to him by Mr Flanagan for the AWU regarding what constitutes an "industrial matter". That said, however, Commissioner Imlach goes on to remark that:16

    "... this is an application to vary an award so that an employer would be bound to conform to certain requirements when engaging contractors, thus imposing a condition on an employer about the terms of a contract the employer may make with a third party, not the employer's employees.

    The Commission is satisfied on the preceding basis that this application seeks to impose conditions on the Company's ability to freely contract with an outside third party and hence the subject matter of this application does not come within the relationship between the Company and its employees; it seeks to regulate the Company's relationship with others who are not its employees."

    The Commissioner's observations really state the test imposed by Section 33 of the Act. In effect, Commissioner Imlach is saying that the subject-matter of the AWU's application cannot be an award that applies to private employees employed in an industry or in an enterprise. That is the basis upon which he concluded that the matter is beyond the Commission's jurisdiction.

    Having regard to the above submissions, the Commission should dismiss the particular grounds of appeal for the following reasons.

    Ground 1: This ground of appeal alleges that Commissioner Imlach "erred in finding or holding that the application ... seeks to impose conditions on the company's ability to freely contract with an outside third party". The Commissioner was entitled to come to the view that he did because the proposed award variation does in fact seek to impose conditions on the Company's ability to freely contract. The clause sought by the AWU contains express prohibitions on Pasminco entering into contracts other than in certain circumstances. Appeal Ground 1 is accordingly not made out because the issue is a question of fact that is disclosed by the application itself.

    Ground 2: This appeal ground alleges that the Commissioner "erred in finding and holding that the application ... related to a subject matter which did not come within the relationship between the company and its employees; and sought to regulate the company's relationship with others". The terms of the application itself do not support that contention. There is no mention in the proposed variation clause of Pasminco's employees; the subject-matter of the provision is the relationship between Pasminco and a contractor and, indirectly, that contractor's employees-assuming the contractor has any employees.

    Ground 3: This ground of appeal deals with Commissioner Imlach's refusal or failure to "allow the applicant to adduce evidence". On a proper reading of the transcript of the hearing at first instance, for reasons discussed above, the appeal ground is not made out.

    Ground 4: This appeal ground asserts that the Commissioner "erred in finding or concluding that the Commission did not have jurisdiction to entertain the application before it". For reasons already discussed this allegation is incorrect. To the contrary, Commissioner Imlach found correctly in relation to this issue.

    Ground 5: This appeal ground contends that Commissioner Imlach "erred in failing to conclude that the Commission had jurisdiction and power pursuant to Section 23 to make an order to vary an existing award, the effect of which would be to overcome an industrial dispute". This ground cannot be made out. Commissioner Imlach was properly dealing with the issue of whether or not he had jurisdiction to deal with the matter. The particular question of whether or not he had power to make the award as sought, in circumstances where there may have been in existence an industrial dispute about the matter, was not the situation before the Commissioner. That issue was never put to him as being relevant, one way or another, to whether he could make an award in terms of the application. The existence of, or potential for an industrial dispute was only relied on or referred to by the AWU in the context of establishing the presence of an "industrial matter".

    Ground 6: The appellant alleges in this ground that Commissioner Imlach "erred and was wrong in determining the application before him on jurisdictional grounds only before hearing all relevant evidence relating to the issue of jurisdiction and the merit of the application overall". The Commissioner's actions in determining that it was appropriate to first deal with the jurisdictional question was open to him by reason of Section 21(2) of the Act, which enables the Commission to determine its own procedure. In the circumstances, Commissioner Imlach's actions do not constitute any error.

    Ground 7: In this appeal ground the appellant alleges that the Commissioner "erred in failing to give any reasons or any adequate reasons for finding and concluding that the application before him sought to impose conditions on the company's ability to freely contract with an outside third party, when there was no evidence at all before him ..." There was sufficient evidence before Commissioner Imlach, by way of the terms of the application itself, to enable him to form a view about its purpose. In the circumstances, it was not an error for him to conclude that the effect of the application, if granted, would be to impose conditions on the Company's ability to freely contract with an outside third party. The desirability of such an outcome, as a matter of merit, was never really an issue. Rather, the issue was whether the character of the application was such that the Commissioner did not have the power to deal with it.

    In the circumstances, this Full Bench should find that the Commission does not have power under the Industrial Relations Act 1984 to grant the appellant's application. Accordingly, the Bench should dismiss the appeal and confirm Commissioner Imlach's decision because he was correct in approaching the matter in the way that he did, i.e. by first dealing with jurisdiction as a discrete issue.

    Findings

    Section 19 of the Industrial Relations Act 1984 expresses the Commission's jurisdiction in the following terms:

    "Subject to this Act, the Commission has jurisdiction to hear and determine any matter arising from, or relating to, an industrial matter."

    In exercising that jurisdiction the Commission may, among other things, "vary ... an award".17

    Section 3 of the Act defines the term "industrial matter" as meaning "any matter pertaining to the relations of employers and employees". The provision also goes on to list a number of matters that "industrial matter" includes and does not include. However, it is not necessary to refer to those items in these proceedings.

    It follows from the above recitals that, relevantly for present purposes, the Commission has jurisdiction to vary an award regarding any matter-save and except for the exclusions specified in Section 3 of the Act-arising from or relating to "any matter pertaining to the relations of employers and employees". In that context, the current proceedings concern an application, made in accordance with the provisions of Section 23 of the Act, to vary the Pasminco Rosebery (Mining) Award in the terms set out at page 1 above.

    Whether the application constitutes an "industrial matter" as defined was clearly an issue of contention before Commissioner Imlach. The Commissioner, however, following a series of discussions with the parties, decided not to deal with that matter. Instead, he informed the parties that he proposed to hear them in relation to the employer's threshold question of jurisdiction-whether the Act, in particular Sections 3, 19 and 33, empowered the Commission to make or vary an award in the terms of the application. That same question is the issue that the respondent put to us in the current proceedings.

    In dealing with the question we make no finding on whether or not the application comprises an "industrial matter" within the meaning of the Act, since such a finding must necessarily depend upon evidence that has not yet been put to the Commission. It is enough for our purposes to simply note the respondent's careful concession that, in some circumstances, claims in relation to contractors are capable of falling within the statutory definition of "industrial matter".

    But, even if the appellant is correct in its contention that, on the decided cases, the substance of the application clearly comprises an "industrial matter" as defined, that is not enough on its own to empower the Commission to make or vary an award. That is because, regarding private sector employment, Section 33 of the Act limits the Commission's award-making power to making awards (or, having regard to Section 3, varying awards) in respect of:

    "(a) all or any private employees employed in an industry; or

    (b) all or any private employees employed in an enterprise."

    The scheme of the Act as a whole, consequently, creates jurisdiction in the Commission to make or vary an award regarding "any matter arising from, or relating to, an industrial matter"-Section 19-in respect of "all or any private employees employed in" either an industry or an enterprise-Section 33.

    The respondent's contention in these proceedings, as it was before Commissioner Imlach, is that even if the AWU's application concerns an "industrial matter", the proposed variation of the Pasminco Rosebery (Mining) Award is not an award or award variation in respect of all or any private employees employed in an industry or in an enterprise. We now turn to examine that contention.

    In applying the Act, including the provisions of Section 33, the respondent submitted that we should assign to the word "employees" the meaning normally given it in an industrial context, i.e. that "employees" are persons employed under a contract of service. Although the definition of "employee" in Section 3 of the Act is unhelpful in this regard, the scheme of the Act as a whole clearly focuses on persons engaged pursuant to a contract of service (employees) rather than a contract for services (contractors). In any event, we do not understand the appellant to have challenged this point.

    Going to the proposed variation itself, we note that paragraph (a) concerns itself with Pasminco and "any contractor or other person", the purport being to treat that "contractor or other person", in certain circumstances, as if bound by the Pasminco Rosebery (Mining) Award. The provision clearly does not direct its attention to Pasminco's employees, since they are already bound by the award in question. Consequently, in our opinion, "contractor or other person"-"other person", in context, we read as being a person of the came class as "contractor"-must mean someone other than an employee. In the circumstances, in our opinion, the proposed award variation is outside the Commission's jurisdiction in that, in terms of Section 33 of the Act, it is not one in respect of all or any private employees employed in an industry or in an enterprise.

    Paragraph (b) is ambiguous and, for that reason, difficult to understand. The opening phrase, "Pasminco shall not enter into any contract for the carrying on of work covered by this award by means of employees ...", is capable of being read as a reference to employees of "the contractor". However, we assume from the general thrust of the appellant's submissions that it is a reference to the work performed by employees who are bound by the Pasminco Rosebery (Mining) Award. However, when we look at the provision as a whole it becomes clear that its real purpose, like that of paragraph (a), is not with employees, but with persons or entities other than employees. That is because, as to its operative part, it purports to govern Pasminco's relationship with "the contractor" rather than with employees. In the circumstances, in our opinion, the proposed award variation is outside the Commission's jurisdiction in that, in terms of Section 33 of the Act, it is not one in respect of all or any private employees employed in an industry or in an enterprise.

    Having regard to the above discussion, we are of the view that, even if the proposed variation comprises an "industrial matter" within the meaning of the Act, it is nevertheless outside the Commission's jurisdiction for the purpose of making an award. That is because, in terms of Section 33 of the Act, being in respect of contractors and not "in respect of all or any private employees engaged in an industry" or "in an enterprise", it is not an award the Commission may make. We find accordingly.

    Keeping the above finding in mind, we now turn to consider the appellant's grounds of appeal.

    Appeal Grounds 3 and 6

    It is a statement of fact that Commissioner Imlach declined to hear evidence on the question of whether or not the AWU's application comprised an "industrial matter" within the meaning of the Act. It is clear to us, after reading the transcript of proceedings of 14 July and his decision of 3 September 1999, that the Commissioner, having debated the issue at some length with the parties, decided that he would first proceed to hear and determine whether the Commission was empowered to make the award sought. We believe that option was open to him in all the circumstances. That is because the issue was not whether there was present an "industrial matter" but that, even if there was such a matter, whether it was a matter in respect of which the Commission could, in any event, make (or vary) an award pursuant to Section 33 of the Act.

    The record of proceedings shows that, before taking his procedural decision, Commissioner Imlach discussed the matter at some length with the parties (both on and off the record) and made it known to the applicant on a number of occasions that he was inclined to follow a particular course. In the circumstances we do not believe the Commissioner's decision constituted a denial of procedural fairness, since he did not make a finding one way or another concerning the "industrial matter" issue. In short terms, in our view, the "industrial matter" question was not critical, as the appellant contended, to the jurisdictional point that the Commissioner decided to hear and determine.

    The appellant further contended that, in taking the procedural decision that he did, the Commissioner led Mr Flanagan, for the applicant, into a false sense of security because his decision did not ultimately turn on the "industrial matter" question, but on the structure of the Act. The record of proceedings before Commissioner Imlach shows that he alerted Mr Flanagan on several occasions and in appropriate detail to the fact that, unlike the federal industrial jurisdiction, the Tasmanian industrial jurisdiction distinguishes award-making powers from dispute settling powers.18 We do not see what else Commissioner Imlach needed to do or should have done as a matter of procedural fairness. Consequently, we reject the appellant's contention that the Commissioner denied the applicant procedural fairness by misleading Mr Flanagan.

    Finally, the appellant contended that since all the Commissioner had before him were unsworn statements from the bar table, there was no evidence upon which he could make any finding as to jurisdiction. In our view, what Commissioner Imlach had before him, in relation to the effect of Section 33 of the Act, was a question of law rather than of fact. In the circumstances, we believe the Commissioner's conclusion that he did not need oral evidence to resolve the issue was open to him.19 Consequently, we do not accept the contention that Commissioner Imlach erred in dealing with the applicant's evidentiary case in the manner that he did.

    Having regard to the above observations, we reject Appeal Grounds 3 and 6.

    Appeal Ground 7

    We agree with the appellant's contention that members of administrative tribunals such as the Tasmanian Industrial Commission have a duty, as a matter of procedural fairness, to give adequate reasons for their decisions. However, the mere fact that a decision is very short is not of itself, in our view, necessarily supportive of an allegation that it does not contain adequate reasons.

    The Commissioner's essential finding was that the AWU's application was outside the Commission's jurisdiction because "it seeks to regulate the Company's relationship with others who are not its employees". In coming to that conclusion the Commissioner had before him full details of the application under consideration and the parties' submissions as to how he should apply the Act in respect of that application. As we have already found, it was open to Commissioner Imlach to conclude that he did not need oral evidence to resolve that question.

    As to the Commissioner's reasoning, we note from his decision that he referred to the distinction to be drawn between the Commission's dispute settlement powers and its award-making powers; he noted that the effect of the application, if granted, would be to impose conditions on a third party who was not an employee of Pasminco; and he observed, for that reason, that the application did not fall within the employer/employee relationship. He then determined, having regard to those reasons, that he should dismiss the application because "it seeks to regulate the Company's relationship with others who are not its employees".20

    It might have been preferable for Commissioner Imlach to have specifically mentioned Section 33 of the Act rather than to have dealt with those requirements by way of inference, especially since it formed such a focal point of his observations to the parties during the course of the hearing. Nevertheless, having regard to the provisions of Section 33, it is clear that the Commissioner determined the application on that basis and gave his reasons for coming to the conclusion that he did. We do not believe that those reasons, brief though they might be, leave any room for doubt as to the grounds upon which the Commissioner determined the fate of the application. Accordingly, we reject the contention that Commissioner Imlach failed to give any or any adequate reasons for his decision.

    The appellant also alleged that, in respect of the decided authorities put to Commissioner Imlach by the applicant, he accurately summarised their effect but failed to say whether he accepted them or, if he distinguished them, on what grounds he did so. Since the Commissioner was dealing with the effect of Section 33 of the Act in relation to the application and not whether the application comprised an "industrial matter" as defined, we conclude that there is no substance to this allegation.

    For the reasons set out above we reject Appeal ground 7.

    Appeal Grounds 4 and 5

    We have already concluded that, in all the circumstances, it was open to Commissioner Imlach to hear and determine the issue of the Commission's power to make the award sought before considering the "industrial matter" question. Consequently, we do not accept the appellant's contention that the fundamental question before the Commissioner was whether the AWU's application comprised an "industrial matter". In the circumstances, since the Commissioner did not deal at all with that matter, we do not find it necessary to consider the case law to which the appellant referred us. No doubt that is also the reason why Commissioner Imlach only gave those authorities passing consideration.

    The appellant also contended that Commissioner Imlach appeared to suggest that, while the facts of the matter before him might constitute an industrial dispute for purposes of Section 29 of the Act, they nevertheless did not constitute an "industrial matter" for purposes of Section 23 of the Act. Having read the transcript of proceedings before the Commissioner we are satisfied that he made no such suggestion, either directly or by inference. All he endeavoured to do, as we see it, was to alert Mr Flanagan to the fact that, having regard to Section 33 of the Act, the presence of an "industrial matter" on its own might not be enough to satisfy the jurisdictional requirements of the Commission's award-making powers.

    The emphasis of much of the appellant's submissions regarding these two grounds of appeal dealt with the issue of "industrial matter". As such, in our opinion, the submissions miss the point in the sense of the issue that Commissioner Imlach decided to hear and determine, i.e. whether the Commission's award-making powers, as reflected in Section 33 of the Act, enabled it to make the award (or vary an award) in terms of the AWU's application. That issue, as a threshold question, does not in our view require any consideration of "industrial matter".

    We have already considered, at some length, the effect of Section 33 of the Act. As a result of that exercise we concluded that the AWU's application is outside the Commission's jurisdiction because, in terms of Section 33, it is not an award the Commission may make since, being in respect of contractors, it is not "in respect of all or any private employees engaged in an industry" or "in an enterprise". The fact that the application seeks only to vary an existing award does not, in our opinion, help the appellant. That is because the proposed amendment is not simply a mere variation of existing rights and obligations of Pasminco employees, but an attempt to create new rights and obligations as between Pasminco and persons or entities that are not employees.

    Taking into account the above observations and our consideration of the effect of Section 33 of the Act, we are satisfied that Commissioner Imlach did not err in (a) finding that the Commission did not have jurisdiction to entertain the AWU's application or (b) in failing to find that the Commission had jurisdiction to vary an existing award for that purpose. Consequently, we reject Appeal Grounds 4 and 5.

    Appeal Grounds 1 and 2

    In our opinion, for reasons already mentioned in the context of our consideration of the effect of Section 33 of the Act, the proposed award variation is outside the Commission's jurisdiction. That is because, in our view, it is not an award in respect of all or any private employees employed in an industry or in an enterprise, since it purports to govern the relationship between Pasminco and persons or entities who are not its employees. In the circumstances, we reject the appellant's contention that the respondent's submissions to that effect are plainly wrong.

    It may well be the case, as the appellant asserts, that the AWU does not seek to inhibit Pasminco's ability to freely enter into commercial contracts with third parties-rather that it simply seeks to protect the job security and conditions of employment of its members who are Pasminco employees. However the question of "industrial matter" is not to the point because, as we mentioned earlier, the issue to which Commissioner Imlach directed the parties' attention did not concern that matter but the operation of the Act in relation to the Commission's award-making powers. In that regard he certainly found that, in terms of Appeal Ground 1, "the application ... seeks to impose conditions on the company's ability to freely contract with an outside party". However, the Commissioner then went on to clarify the statement by adding that "hence the subject-matter of this application does not come within the relationship between the Company and its employees; it seeks to regulate the Company's relationship with others who are not its employees".21 We believe that Commissioner Imlach's finding, read as a whole, goes directly to the nub of Section 33 of the Act. In the circumstances, given the view we take of the effect of Section 33 of the Act, we reject the appellant's contention that Commissioner Imlach erred in the manner alleged in Appeal Ground 1.

    The appellant also suggested that, in coming to his decision, Commissioner Imlach improperly drew certain inferences and made assumptions about the AWU's intentions regarding the application. It seems to us, after reading the transcript of proceedings at first instance, that the Commissioner's words do indeed reflect the nature of part of the submissions put to him on that occasion by the respondent's advocates. However, as mentioned in the paragraph above, Commissioner Imlach went on to explain the basis of his decision, i.e. that it did not fall within the employer/employee relationship because it sought to regulate Pasminco's relationship with persons who are not its employees. Accordingly, we are of the view that while the Commissioner might have worded his decision somewhat differently (as we have already mentioned) we are in no doubt that the basis of his conclusions properly lie in the structure of the Act and not on extraneous inferences and assumptions of the kind suggested by the appellant.

    For the reasons set out above we reject Appeal Grounds 1 and 2.

    Having regard to all the above considerations in relation to the appellant's grounds of appeal and taking into account our conclusions in regard to the effect of Section 33 of the Act we dismiss the appeal and confirm Commissioner Imlach's decision.

     

    F D Westwood
    PRESIDENT

    Appearances:
    Ms S Taglieri, a legal practitioner, for The Australian Workers' Union, Tasmania Branch.
    Ms H McKenzie, a legal practitioner, with Mr P Edwards for Pasminco Australia Limited trading as Pasminco Rosebery Mine and Mr W J Fitzgerald from Australian Mines and Metals Association (Incorporated).

    Date and Place of Hearing:
    1999
    November 10
    Hobart

    1 T8441, Reasons for Decision 3 September 1999, p. 2.
    2 T8441, transcript 14/7/99, p. 20.
    3 Exhibits AWU 1 (Cram; Ex parte NSW Colliery Proprietors Association (1987) 163 CLR 117); AWU 2 (Adelaide Women's Health Centre Inc v Australian Liquor, Hospitality and Miscellaneous Workers Union (1996) Print M9948]; and AWU 3 (The AWU-FIME Amalgamated Union v Alpine Australia Group Pty Ltd (1996) Print N1516).
    4 160 CLR 341, 353.
    5 Exhibit AWU 1.
    6 Above, p. 3.
    7 Exhibit AWU 2.
    8 Print M9948.
    9 Print N1516; Exhibit AWU 3.
    10 Above, p. 5.
    11 Print K3311.
    12 Applying R V Commonwealth Industrial Court Judges: Ex parte Cocks (1968) 121 CLR 313.
    13 T8441 of 1999, Reasons for Decision 3 September 1999, pp. 1-2.
    14 Supra, p. 2.
    15 Supra.
    16 T8441 of 1999, Reasons for Decision 3 September 1999, p. 2.
    17 Section 19(2)(a).
    18 T8441, transcript 14/7/99. See, for example, pp. 17, 18 and 26.
    19 Supra, p. 20.
    20 T8441 of 1999, Reasons for Decision 3 September 1999, p. 2.
    21 T8441 Reasons for Decision 3 September 1999, p. 2.