Re The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers - Western Australian Branch [2000] WASCA 233 (28 August 2000) Last Updated: 20 December 2000 JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT CITATION : RE THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION OF WORKERS - WESTERN AUSTRALIAN BRANCH [2000] WASCA 233 CORAM : KENNEDY J (Presiding Judge) SCOTT J WHEELER J HEARD : 1 MAY 2000 DELIVERED : 28 AUGUST 2000 FILE NO/S : IAC 2 of 2000 MATTER : An appeal against the decision of the Full Bench of the Western Australian Industrial Relations Commission BETWEEN : RE THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION OF WORKERS - WESTERN AUSTRALIAN BRANCH Appellant Catchwords: Industrial law (WA) - Industrial Relations Commission - Coverage of employee organisations - Application for exclusive right to represent industrial interests of employees in an enterprise - Request for secret ballot of employees of enterprise - Whether Industrial Relations Commission has the power to order a secret ballot of the employees of the enterprise Legislation: Industrial Relations Act 1979 , s 26(1)(b) , s 27 , s 72A , s 93(8) Result: Appeal dismissed Representation: Counsel: Appellant : Mr R D Farrell The Food Preservers' Union of Western Australia, Union of Workers : Mr R L Le Miere QC & Mr J G M Fiocco Inghams Enterprises Pty Ltd : Mr D S Ellis Solicitors: Appellant : Derek Schapper The Food Preservers' Union of Western Australia, Union of Workers : Fiocco Hopkins Nash Inghams Enterprises Pty Ltd : Freehill Hollingdale & Page Case(s) referred to in judgment(s): Case(s) also cited: Australian Workers' Union, West Australian Branch, Industrial Union of Workers v The Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia - Western Australian Branch (1999) 79 WAIG 3012 Re Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia - Western Australian Branch (1997) 78 WAIG 1581 Eastern Goldfields Amalgamated Butchers' Industrial Union of Workers v Allen (1908) 7 WAAR 155 Re Hospital Salaried Officers Association of Western Australia (Union of Workers) (1996) 76 WAIG 1673 House v The King [1936] HCA 40 ; (1936) 55 CLR 499 R v Forbes; ex parte Bevan [1972] HCA 34 ; (1972) 127 CLR 1 1 JUDGMENT OF THE COURT : By a notice of application filed in the Western Australian Industrial Relations Commission on 5 January 2000 (FBM 1 of 2000), the appellant applied for the following orders pursuant to the provisions of s 72A of the Industrial Relations Act 1979 ("the Act "): "1. The [appellant] shall have the right to represent under the Industrial Relations Act 1979 the industrial interests of all those persons employed by Inghams Enterprises Pty Ltd at Osborne Park or such other location as the undertaking at Osborne Park may subsequently be carried out. 2. The Food Preservers' Union of Western Australia Union of Workers shall not have the right to represent under the Industrial Relations Act 1979 the industrial interests of any of those persons employed by Inghams Enterprises Pty Ltd at Osborne Park or such other location as the undertaking at Osborne Park may subsequently be carried out. 3. In this order, Inghams Enterprises Pty Ltd includes its successors, assignees, transmittees or any purchaser of the whole or any part of its business." 2 The grounds for that application were said to be as follows: "Inghams Enterprises Pty Ltd employs a number of persons at its chicken processing plant at Osborne Park including maintenance tradespersons and production workers. The maintenance tradespersons are covered by the [appellant]. The production workers wish to be represented in their industrial interests by the [appellant] and not by the Food Preservers' Union. The appellant seeks an exclusive representation order to give effect to the wishes of the employees and to facilitiate efficient and orderly representation of the employees." 3 By an undated interlocutory application, filed on 25 February 2000, the appellant sought the following orders: "A. That: 1. A secret ballot ("the ballot") be conducted of those employees of Inghams Enterprises to whom application FBM1 of 2000 relates for the purpose of assisting the Commission determine the wishes of those employees as to industrial representation. 2. The [appellant] and interveners in proceeding FBM1 of 2000 shall confer as to the form, manner and date of conduct of the ballot and report back to the Full Bench by [insert date] ( sic ). 3. This application and application FBM1 of 2000 be adjourned to [insert date] ( sic ). 4. There be liberty to apply to the party and the interveners. Alternatively B That: 1. The Registrar shall investigate the wishes of employees of Inghams Enterprises to whom application FBM1 of 2000 relates as to industrial representation and shall report thereon to the Full Bench. 2. The investigation shall be carried out by way of secret ballot of the employees. 3. Prior to commencing the ballot the Registrar shall confer with the [appellant] and interveners in proceeding FBM1 of 2000 as to the form, manner and date of conduct of the ballot." 4 The grounds upon which this application was brought were particularised as follows: "Application FBM1 of 2000 is an application by the AMWU under s 72A for exclusive representation orders in respect of employees of Inghams Enterprises. An important factor in the exercise of the Full Bench's discretion under s 72A is the wishes of the employees. Objective ascertainment of those wishes is best done by a secret ballot of the employees conducted by an independent person. The orders sought will ensure, as far as possible, objective ascertainment of the wishes of employees and thereby facilitate the proper exercise of the Full Bench's discretion. Further, the conduct of the ballot may altogether obviate the need for any further proceedings in application FBM1 of 2000." 5 The Full Bench, in a unanimous decision, dismissed the appellant's application, holding that it had no power under either s 27(1) or s 93(8) of the Act to make the orders sought. The appellant has appealed against that decision. 6 Section 72A(2) of the Act enables an organization of employees to apply to the Full Bench of the Commission for an order that the organization has the right, to the exclusion of another organization or organizations, to represent, under the Act , the industrial interests of a particular class or group of employees employed in an enterprise who are eligible for membership of the organization. The term "enterprise" is defined, inter alia , as a business that is carried on by a single employer. By s 72A(5) , the Full Bench is prohibited from making an order under s 72A(2) without giving persons who, in its opinion, have a sufficient interest in the matter an opportunity of being heard. 7 There is an express reference in s 56 of the Act to secret ballots. This requires the rules of organizations to provide for secret ballots in relation to any election for office within those organizations. And see also s 55(4)(e) , s 57 , s 62(3) and s 69. In addition, s 97E empowers the Commission to order a pre-strike secret ballot where a strike is contemplated or believed to be contemplated by members of an organization of employees in order to ascertain whether a majority of those members endorse or do not endorse participation in a strike. Detailed provisions are laid down in Pt VIB of the Act as to the holding of the ballot. See also s 32. There are no other relevant provisions to be found in the Act regarding secret ballots. 8 The appellant relies upon three provisions in the Act , namely, s 26(1)(b) , s 27(1)(v) and s 93(8) , as conferring upon the Full Bench the power to make the orders sought. 9 Section 26(1) prescribes the manner in which the Commission is to exercise its jurisdiction under the Act . Paragraph (a) requires it to act according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms. Paragraph (b) provides that the Commission shall not be bound by any rules of evidence. It is in this context that it is provided that the Commission may inform itself on any matter in such a way as it thinks just. This is not an unusual provision - see, for example, the former s 656 of the Criminal Code , now replaced by s 15 of the Sentencing Act 1995 . Section 26(3) , which requires the Commission, when proposing or intending to take into account any matter or information that was not raised before it on the hearing of the matter, to afford the parties concerned the opportunity of being heard in relation to that matter or information. Section 26(1)(b) enables the Commission to refer to whatever materials it thinks fit, notwithstanding that, under the ordinary rules of evidence, it would be inadmissible. It does not enable the Commission to require an employer to submit to a secret ballot of its employees and to provide details of those employees to enable the ballot to be conducted. It is also to be noted that the employer in this case is not even a party to the present proceedings, it merely having been given the right to be heard. 10 Section 27(1)(v) of the Act provides as follows: "27.(1) Except as otherwise provided in this Act , the Commission may, in relation to any matter before it - (a) at any stage of the proceedings dismiss the matter or any part thereof or refrain from further hearing or determining the matter or part if it is satisfied - (i) that the matter or part thereof is trivial; (ii) that further proceedings are not necessary or desirable in the public interest; (iii) that the person who referred the matter to the Commission does not have a sufficient interest in the matter; or (iv) that for any other reason the matter or part should be dismissed or the hearing thereof discontinued, as the case may be; (b) take evidence on oath or affirmation; (c) order any party to the matter to pay to any other party such costs and expenses including expenses of witnesses as are specified in the order, but so that no costs shall be allowed for the services of any legal practitioner, or agent; (d) proceed to hear and determine the matter or any part thereof in the absence of any party thereto who has been duly summoned to appear or duly served with notice of the proceedings; (e) sit at any time and place; (f) adjourn to any time and place; [(g) deleted] (h) direct any person, whether a witness or intending witness or not, to leave the place wherein the proceedings are being conducted; (i) refer any matter to an expert and accept his report as evidence; (j) direct parties to be struck out or persons to be joined; (k) permit the intervention, on such terms as it thinks fit, of any person who, in the opinion of the Commission has a sufficient interest in the matter; (l) allow the amendment of any proceedings on such terms as it thinks fit; (m) correct, amend, or waive any error, defect, or irregularity whether in substance or in form; (n) extend any prescribed time or any time fixed by an order of the Commission; (o) make such orders as may be just with respect to any interlocutory proceedings to be taken before the hearing of any matter, the costs of those proceedings, the issues to be submitted to the Commission, the persons to be served with notice of proceedings, delivery of particulars of the claims of all parties, admissions, discovery, inspection, or production of documents, inspection or production of property, examination of witnesses, and the place and mode of hearing; (p) enter upon any manufactory, building, workshop, factory, mine, mine-working, ship or vessel, shed, place, or premises of any kind whatsoever, wherein or in respect of which any industry is or is reputed to be carried on, or any work is being or has been done or commenced, or any matter or thing is taking or has taken place, which is the subject of a matter before the Commission or is related thereto; (q) inspect and view any work, material machinery, appliance, article, book, record, document, matter, or thing whatsoever being in any manufactory, building, workshop, factory, mine, mine-working, ship or vessel, shed, place or premises of a kind referred to in paragraph (p); (r) question any person who may be in or upon any such manufactory, building, workshop, factory, mine, mine-working, ship or vessel, shed, place or premises in respect or in relation to any such matter or thing; (s) consolidate or divide proceedings relating to the same industry and all or any matters before the Commission; (t) with the consent of the Chief Commissioner refer the matter or any part thereof to the Commission in Court Session for hearing and determination by the Commission in Court Session; (u) with the consent of the President refer to the Full Bench for hearing and determination by the Full Bench any question of law, including any question of interpretation of the rules of an organization, arising in the matter; and (v) generally give all such directions and do all such things as are necessary or expedient for the expeditious and just hearing and determination of the matter. (1a) Except as otherwise provided in this Act , the Commission shall, in relation to any matter before it, conduct its proceedings in public unless the Commission, at any stage of the proceedings, is of the opinion that the objects of the Act will be better served by conducting the proceedings in private. (2) The powers contained in subsection (1)(p), (q) and (r) may, if the Commission so directs in any case, be exercised by an officer of the Commission or by an expert to whom any matter has been referred by the Commission." 11 There is no express power in this section enabling the Commission itself to conduct a secret ballot or to delegate that task to anyone else - cf s 27(1)(p) , (q) and (r) and s 27(2). 12 Section 27(1)(v) was considered by this Court in Robe River Iron Associates v Federated Engine Drivers' and Firemens' Union of Workers of Western Australia (1986) 67 WAIG 315. That case arose out of a manning dispute with respect to mechanical shovels. The Commission in Court Session had made an interim order to preserve the existing manning level. The order was made, not within conciliation proceedings, but while arbitration proceedings were pending. It was apparent that the Commission had relied upon s 27(1)(v) as the source of its power. At 317, Brinsden J said: "Under section 27(1)(v) the only things that may be done are giving of directions and doing all such things as are necessary or expedient "for the expeditious and just hearing and determination of the matter". All the other items of power provided by section 27 with possibly two or three exceptions are particular matters of procedure relevant to the hearing and determination of the matter. Three of the items are concerned with entry upon a manufactory or similar type of building, inspection of work and machinery and other items in any such manufactory or building, and questioning any person who may be in or upon any such manufactory or building, all of which items might be regarded as items giving the Commission power to better inform itself in respect of the subject matter of a dispute. The interim order is one which directly deals with an industrial procedure in the industry in respect of which the parties are engaged. The respondent contends that section 27(1)(v) supports such an order but for that to be so then the subsection must be given a very wide interpretation beyond merely a dragnet clause to cover any other form of direction or order or action of a procedural nature not covered specifically by the foregoing items. The Commonwealth Conciliation and Arbitration Act 1904 and Amendments [since replaced by the Industrial Relations Act 1988 ] has a similar provision to s 27 in s 41 and it contains in s 41(1)(o) an identical provision to s 27(1)(v). That subsection in the Commonwealth Act, when it was s 40(1)(p), was considered in the case of Gas Employees (Victoria) Award and Ors (1948) 61 CAR 2000 when it was held that it amounted to a machinery provision only. As the Court held, a section like section 40 or 41 is a section which enables the Court to deal with matters which have been properly brought before it. They do not confer substantive jurisdiction but merely legislate for the method by which the Court may exercise the jurisdiction already conferred upon it by other sections. I see no significant difference between the Commonwealth Act and the Act to justify us in giving to s 27(1)(v) any wider construction other than as a machinery provision." 13 His Honour then went on to indicate that he was unable to accept that the interim order had any relevance either directly or indirectly to furthering "the expeditious and just hearing and determination" of the matter. At 319 in the report, Kennedy J arrived at the same conclusion, while Olney J agreed with the reasons delivered by Brinsden J and Kennedy J. 14 In our opinion, par (v) is concerned only with directions in connection with the conduct of the proceedings and relates to procedural matters only. It does not authorise the Commission to make an order of the nature now sought. A secret ballot is not relevantly a mode of proceeding. 15 We were referred by the appellant to two decisions of the Australian Industrial Relations Commission in support of its argument under s 27(1)(v). The first was a decision of President O'Connor in Re Construction, Forestry, Mining and Energy Union , unreported; Australian Industrial Relations Commission (O'Connor P); C No 22192 of 1993; 23 May 1995. This case concerned an application for a ballot to be held of certain employees with respect to a demarcation dispute relating to the extent of representation of the industrial interests of those employees. Reliance was placed upon s 111(1)(t) and s 135(1) of the Industrial Relations Act 1988 (Cth) . Subject to the Act, s 111(1)(t) empowers the Commission, in relation to an industrial dispute, to "generally give all such directions, and do all such things, as are necessary or expedient for the speedy and just hearing and determination of the industrial dispute". Section 135(1), which has no counterpart in the Western Australian Act, provides: "135.(1) Where: (a) an organisation is concerned in an industrial dispute with which the Commission or another tribunal acting under a law of the Commonwealth is empowered to deal (whether or not proceedings in relation to the dispute are before the Commission or other tribunal); and (b) the Commission considers that the prevention or settlement of the industrial dispute might be helped by finding out the attitudes of the members, or the members of a section or class of the members, of the organisation or a branch of the organisation in relation to a matter; the Commission may order that a vote of the members be taken by secret ballot (with or without provision for absent voting), in accordance with directions given by the Commission, for the purpose of finding out their attitudes to the matter." 16 Without providing any reasons, O'Connor P ruled that s 111(1)(t) was a general power which enabled the Commission to give all such directions, and to do all such things, as were necessary or expedient for the speedy and just hearing and determination of the industrial dispute. She merely said: "I am satisfied that the Commission has power under section 111(1)(t) of the Act to order the conduct of such a ballot, and am therefore of the view that it is not necessary to determine whether power also exists under section 135." 17 The second decision was delivered in the same dispute, following O'Connor P having found that the Commission had the power to order that a ballot be held. In Re Construction, Forestry, Mining and Energy Union , unreported; Australian Industrial Relations Commission (Duncan DP); C No 22192 of 1993; 10 May 1996, Duncan DP decided that the power should be exercised in that case. Duncan DP was not required to consider whether the power existed. In the circumstances, neither decision is of any persuasive value in this matter. 18 The third provision relied upon by the appellant, s 93(8), provides: "(8) The Commission may at any time of its own motion direct the Registrar or any other officer of the Commission to make such investigations and reports in relation to any matter within the jurisdiction of the Commission as it deems necessary." This section comes under the general heading of the appointment and duties of officers. It is not a provision, in our opinion, which would enable the Commission to direct the Registrar or another officer to gather evidence for the benefit of a party to the proceedings in order to assist it in its application. In our view, the holding of a secret ballot is not relevantly an "investigation". Nor is it a "report", although the application is couched in that language. Section 93(8), in our opinion, is directed to matters such as those referred in s 93(9), that is to say, the initiation of proceedings for breaches of duty by finance officials of organisations, the enforcing of awards and orders of the Commission and the taking of proceedings for offences. 19 In our opinion, none of the provisions relied upon by the appellant confers upon the Commission the power to make the orders sought by it. Accordingly, we would dismiss this appeal. We would add that we can detect no error in law in the decision of the Full Bench that, if it had the power to make the order sought, it would decline to exercise it.