PR956834 PR956834 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170LK certification of agreement Adjac Holdings Pty Ltd (AG2005/2930) ADJAC HOLDINGS PTY LTD CERTIFIED AGREEMENT 2004 Wholesale and retail trade COMMISSIONER RICHARDS BRISBANE, 29 MARCH 2005 Summary: application for certification of an agreement pursuant to s.170LK - application for leave to intervene re s.43(1) by an organisation of employees not registered under the Act - organisation of employees not capable of intervening under s.43(2)(a) or (b) - no authority to represent an employee - no application to be bound by the Agreement - construction for s.43(1) and (2) of the Act re Full Bench in Formula One Catering in consideration of discretion - weight to be given to Parliament's intention to limit intervention in s.170LK agreement - compelling reasons required to grant leave to a non-registered organisation - leave to intervene refused. DECISION [1] On Wednesday, 16 February 2005, the Commission heard an application by Adjac Holdings Pty Ltd ("the Applicant") for the certification of the Adjac Holdings Pty Ltd Certified Agreement 2005 (AG2005/2930). [2] The application was listed for public hearing upon notice being received from the Shop Distributive and Allied Employees' Association, New South Wales ("SDA NSW") that it sought to intervene in the application for certification in response to an invitation provided by the Commission in its listing for an in-chambers hearing. [3] The SDA(NSW) is an organisation of employees registered in the State of NSW. It is not a registered organisation for the purposes of the Workplace Relations Act 1996 ("the Act"). [4] The SDA(NSW) applied for grant of leave from the Commission to intervene in the proceeding pursuant to s.43(1) of the Act. [5] Mr John Ryan, an official of the Shop Distributive and Allied Employees' Association sought leave to appear as agent for the SDA (NSW), pursuant to s.42(3)(b) of the Act. [6] The Applicant, which was represented by the National Retailers Association ("the NRA") opposed the grant of leave. [7] At the time of the hearing, the Commission provided the parties with a copy of the decision of the Full Bench in Re: Formula One Catering Services Pty Limited trading as Quality Cuisine Catering (" Re: Formula One ") 1 , and permitted them some time to digest its implications. [8] Following initial oral submissions from the parties, the Commission, upon request, adjourned the hearing and re-listed the application for hearing on 23 March 2005, in order to determine the contested matter of intervention. The hearing of the matter was subsequently delayed owing to availability of the parties. [9] For purposes of seeking leave to intervene, the SDA(NSW) submissions included the following points (in summary): In relation to the decision in Re: Formula One Catering as distributed to the parties, there was " no justification for the Full Bench coming to the view that "compelling reasons" would be required for a grant of leave to intervene under s.43(1) " where an organisation not registered under the Act had no representative role under s.43(2) of the Act in relation to the application. The Full Bench comments in this regard, the SDA(NSW) claimed, should be taken as " obiter dicta " and not " ratio decidendii " 2 . The appropriate basis for determining leave to intervene, it was contended, was disclosed in various authorities led by the SDA(NSW), which are cited below. If the Commission were to approve the application for certification that is before it, this would " remove employees of the employer who are located in the State of New South Wales, from the jurisdiction of the New South Wales Industrial Commission and place them under the jurisdiction of the Australian Industrial Relations Commission ." 3 If approved, the application would " replace the operation of the State Shops Award, as the industrial industry method which regulates the terms and conditions of employment, therefore which would be an instrument that could regulate the terms and conditions of employment of those employees and replace that State regulation with regulation by this certified agreement " 4 . The SDA (NSW) " has a very strong interest in maintaining the operation of the State award and the State union is the union covering the retail industry, including the fast food industry, in the State of New South Wales and it has ensured that the State Shops Award is an effective award established by the State Commission which specifically covers the fast food industry in the State of New South Wales ". 5 The interest of the SDA(NSW) is " specific in relation to its operation as a body operating under the State Act and operating under an Act, which creates a State tribunal, a system of State awards and which has a long history of regulating the retail and fast food industries in the State of New South Wales ". 6 Generally, the SDA(NSW) submitted that "[w] here the intervenor seeks to present information which is essential for the Commission to properly carry out its duties under s.170LT and s.170LU, then intervention should be allowed and the intervenor should be heard on the matter ." 7 In the absence of the intervention of the SDA(NSW) " which " , it was submitted , "is in the unique position of being able to present to the Commission information relating to the award ", the Commission would not be able to fulfil its functions in relation to the application for certification, and particularly so in relation to s.170LT(2) of the Act. This is because the application does not afford the Commission sufficient information in relation to such matters as the employer's trading hours, staffing profiles, and the working hours of pizza employees and delivery drivers. Further, in this context, it was alleged that the incorrect award rates have been applied to delivery drivers for reason that the classifications of the Shop Employees Award (State) NSW did not apply. 8 Further in relation to the " no disadvantage test ", it was submitted that the SDA(NSW) should be permitted to intervene, for example, to provide submissions in relation to a difference in one hour between the minimum engagement for a casual employee under the agreement and the award. It was claimed in this regard that "[w] here even one employee is disadvantaged by the operation of the agreement, then agreement fails the No Disadvantage Test ". 9 Justification for intervention was also strengthened for reason that Statutory Declarations filed by Adjac Holdings stated that the award that applied to delivery drivers was the Shop Employees Award (State) NSW , and the employer had adopted a different position in reality. 10 It was also submitted that the Shop Employees Award (State) NSW applied to the delivery drivers for reason that the award applies to the " principal purpose of the business " and " extends not only to direct retail operations but [...] to work performed in or in connection with the retail operations . " 11 It was also submitted that there was support for reading "delivery drivers" as properly falling under the Shop Employees Award (State) NSW. 12 As the proper application of an award to the agreement was in contest, this also gave grounds for the Commission to exercise its discretion in favour of the SDA(NSW) and, further, displaced scope for the Commission to reach an affirmative prima facie view as to the validity of the Agreement for purposes of the exercise of that discretion; The SDA(NSW) stated that reliance on other members of the Commission having certified similar or identical agreements as the one currently before the Commission could provide no basis for replicating any such decisions. 13 The SDA(NSW) contended the Commission could not approve the application for certification for reason that s.170LK (7) had not been complied with. That is, because the incorrect award rates of pay had been applied to delivery drivers, and consequently, the requirements of s.170LK (7) could not have been met. Further, it was contended that the meeting which took place to explain the terms of the agreement was outside normal working hours and the majority of employees were not able to attend. It was contended, consequently, that where the SDA(NSW) had information as to non-compliance with s.170LK (7) and\or s.170LK (1) of the Act, the State union should be granted leave to intervene in order to inform the Commission. 14 The SDA(NSW) also alleged that the " broad provisions of 170LE(c) relates to giving persons a reasonable opportunity to decide whether they want to make the agreement or give the approval, and [...] that persons were not given a reasonable opportunity to vote on the agreement. " 15 The reason for this was that: "the timing of the ballot, being 10 o'clock on a Wednesday morning, is such that it doesn't constitute a reasonable opportunity for a group of employees whose predominant hours of work are not 10 o'clock on weekdays but are predominantly Friday, Saturday and Sunday nights." 16 It was also submitted, in relation to s.170LK (7) of the Act, that " the way in which material was presented in the document which compared the award with the agreement, and we say that the way in which the explanation was presented in that document does not constitute a reasonable steps to ensure that the terms of the agreement are explained to the persons employed at the time, as is required by 170LK(7). And in particular [...] the way in which wage rates are presented for ordinary hours as against weekend hours is difficult to follow within the structure of the agreement and only persons who were reasonably well familiar with the structure of awards and agreements would have been able to follow the actual comparisons between the award and the agreement, and [...] constitutes the failure to take reasonable steps to explain the terms of the agreement and that would be a fatal flaw under 170LK(7) ". 17 The SDA(NSW) also made various other claims about the so-called " deliberate tactics " of the NRA. These tactics included not making available to the Commission the deponents of the various statutory declarations, even though there was no obligation for it to do so unless the Commission so requested. It was alleged that a further practice employed by the NRA was making applications for certification of agreements in Brisbane, when the franchisees were not located in Queensland (even though their representative industrial organisation was so located). 18 The SDA (NSW) also led various authorities, which the Commission has examined, in relation to application for standing etc under various formulations for purposes of a number of legislative instruments 19 . It was submitted that these contained the appropriate test for granting leave to intervene, not the tests referred to in Re: Formula One . 20 The SDA(NSW) also submitted that " right of the Association to intervene in these proceedings " was strengthened by the recent decision of the NSW Industrial Relations Commission in Court session in CFMEU v Newcrest Mining Ltd [2005] NSWIRC23 (21 February 2005). This was because the NSW Commission's jurisdiction to deal with disputes was not ousted by the existence of an agreement certified under the Workplace Relations Act 1996 . [10] The NRA for its part made the following submissions, in summary, in opposition to the application for grant of leave to intervene: By reference to the decision of the Full Bench in Re:Formula One Catering , s.43 of the Act did not provide a basis on which the SDA(NSW) could be granted leave to intervene in proceedings, and the Full Bench could not have intended that " whenever a Federal certified agreement is made using a State award as a relevant award, that automatically gives a State union party to that State award, sufficient interest to intervene in a Federal section 170LK , non-union certified agreement made directly between the employer and its employees ". 21 In particular, it was submitted that the SDA(NSW) did not advance an argument that it has any members within the employee of the business; or that it has any authority to act on any employee's request; or that it had had any previous involvement in the particular workplace. That the Commission should " on the basis of the evidence that it has before it consider that on a prima facie basis that s.170LK has been complied with and continue to decide the issue of intervention on that basis ." The NRA refuted claims that the agreement had not been made consistent with the Act's requirements. The Agreement now before the Commission, it was submitted, had " been made in a manner consistent with previous agreements entered into by companies trading in NSW as Eagle Boys Pizza which have been certified by various commissioners in the past ". That the Agreement now before the Commission had been certified, in identical terms bar the agreement title, by Lawson C on 5 February 2005. 22 In relation to the claim that employees were not provided the required opportunity (for reason of the timing of the ballot) to decide to approve the Agreement, it was submitted that all seventeen (17) employees to be covered by the Agreement voted unanimously to approve the Agreement in a ballot conducted to that end. In relation to the claim that no reasonable steps were made (in relation to s.170LK (7) of the Act) to explain the terms of the Agreement for reason of the timing of the meetings, it was submitted that all seventeen employees attended the relevant briefing session, contrary to the claims by the SDA(NSW). In relation to the claim the arrangement of the documentation was deficient for purposes of s.170LK (7) of the Act, it was submitted that the comparison documentation was appropriately user friendly and was designed to meet the requirements of the relevant classes of employees. In relation to the claim the incorrect award was applied for purposes of determining the drivers' rates of pay, it was submitted that the Transport Industry - Retail (State) Award 1999 - NSW was applied for reason that the classifications of the Shop Employees Award State (NSW) did not provide certainty of coverage. An examination of the classifications at Group 1 and Group 5 of the Award, it was contended, applied to employees delivering goods by " bicycle or tricycle " or else employees " in charge of a motor and\or horse drawn Vehicle selling stock carried on the vehicle products of a kind which usually are sold by confection / take-away food shops ." Delivery drivers, it was submitted, do not deliver goods on bicycles or tricycles and do not themselves engage in the process of selling pizzas from their vehicles . That is, it was submitted that the sales process, the soliciting, invitation to treat, acceptance stages of selling are complete by the time the delivery driver carries out his or her functions. It was argued that the classifications, as cited, in the NSW Shops award were more applicable to food and ice-cream vans, and that other classifications were equally inapplicable to pizza delivery drivers. Clause 37 of the Shop Employees Award State (NSW) specifies that the application of the Award is limited to the classifications under that Award, and these classifications do not include a classification that applies to delivery drivers in the context in which they are employed by the Applicant. The SDA(NSW) is not an employee organisation that is respondent to or could have any interest in the Transport Industry - Retail (State) Award 1999 - NSW , nor to any other award that could be applicable to delivery drivers. It was further submitted that the general intent of the Transport Industry - Retail (State) Award 1999 - NSW 23 was to provide award regulation of such persons as delivery drivers working in retail contexts , otherwise its purpose would be redundant. The explanatory documentation presented to employees who were delivery drivers for purposes of the agreement making process clearly stated that the Transport Industry - Retail (State) Award was used for the comparison purposes, and that this had been put before the Commission at the time of the application for certification. (The reference in the statutory declaration to the Shops Award as having application to the delivery drivers was unintended, therefore, and should be disregarded). The employer's business in Albury NSW had been operating under agreements certified pursuant to the Workplace Relations Act 1996 since 1998. The agreements in this context had been approved in 1998 by Hoffman C (C No. 40423 of 1998) and in 2001 by Hodder C (AG2001/4609). The certified agreements were comprehensive agreements. In view of this, there were no grounds on which the SDA(NSW) could make a claim the effect of the Agreement now before the Commission would be to remove the relevant employees from the NSW State jurisdiction or replacing the operation of the State award: the employees had been subject to comprehensive certified agreements for some 6-7 years to date. For the same reasons, it could not be said that the application for certification would reduce the effectiveness of the State award, or the ability of the SDA(NSW) to maintain that award. On the above basis, the claim by the SDA(NSW) to have a direct interest in the application for certification (such that leave to intervene should be granted) cannot be sustained. It was also asserted " that the federal branch of the SDA have on several occasions entered into federal awards and certified agreements with major fast food retailers within the federal jurisdiction that apply within the State of NSW and contain rates of pay and delivery driver payments that are less then those contained within the agreement before you in this matter ". 24 The contention that the Agreement failed the no disadvantage test at s.170LT(2) of the Act were flawed as the SDA's calculations do not consider the correct shift comparisons, and overlook the effect on employees earnings of the operations of the business across the week, including lunch time trade, which generate significant revenue (outside of the peak Friday, Saturday and Sunday nights). In response to the claim that the NRA had established a strategy of sorts to have their agreements certified in Brisbane, it was submitted that the Commission itself had established this practice " several years ago " (possibly from the late 1990s) at the Commission's own initiative as an administrative practice. It was submitted that Eagle Boys agreements across the country have been certified by various members based in Brisbane as a matter of routine over the years (again, at least, it would appear, from the late 1990s) as a result of this arrangement. It has always been open to the Commission to require the applicant and the employee representative to appear at a hearing to respond to any questions. The authorities relied upon by the SDA(NSW) to intervene under s.43(1) of the Act are " of little assistance " as they do not relate to the provisions of the Workplace Relations Act 1996 , and, in any event, in the circumstances the SDA(NSW) did not have a sufficient interest to be granted leave to intervene. The intervention would cause inconvenience and further delays to the finalisation of the certification process relevant to this agreement. STATUTORY PROVISION [11] Section 43 of the Act reads as follows: " 43 Intervention generally (1) Where the Commission is of the opinion that an organisation, a person (including the Minister) or a body should be heard in a matter before the Commission, the Commission may grant leave to the organisation, person or body to intervene in the matter. (2) If the matter before the Commission is an application under Division 2 or 3 of Part VIB for certification of an agreement, the Commission: (a) must, on application, grant leave to intervene in the matter to any organisation of employees that was requested to represent a person as mentioned in sub section 170LK (4) in relation to the agreement, provided the request was not withdrawn; and (b) except as mentioned in paragraph (a), must not grant leave to intervene in the matter to an organisation of employees other than one that is proposed to be bound by the agreement." CONSIDERATION [12] The task before the Commission is to determine " a procedural application " 25 in relation to whether or not to exercise its discretion favourably such as to grant leave to intervene pursuant to s.43(1) of the Act to a state registered organisation of employees - the SDA(NSW) - in relation to an application for certification of an agreement made pursuant to s.170LK of the Workplace Relations Act 1996 . [13] The Full Bench in Re: Formula One considered an appeal against a decision of Deputy President Hampton, in which the Deputy President granted leave to an association of employees known as the Broken Hill Town Employees' Union ("the BHTEU") to intervene in the proceeding then before him, which concerned an application by the appellant for certification of an agreement made in accordance with s.170LK of the Act. [14] The decision of the Full Bench would appear to provide guidance in relation to the circumstances currently before the Commission where leave to intervene is sought under s.43 the Workplace Relations Act 1996 . A copy of the Full Bench decision was distributed to the parties on the first occasion on which the application for certification was heard. [15] For purposes of s.42 of the Act, the BHTEU appeared through an agent, the Shop, Distributive and Allied Employees Association, South Australian Branch (the SDAEA). [16] The BHTEU was not an organisation of employees that was registered under the Act. [17] The Workplace Relations Act 1996 provides a definition of an " organisation " in the following terms: "organisation means an organisation registered under the Registration and Accountability of Organisations Schedule." [18] The Full Bench found that the Act, subject to the favourable exercise of the discretion vested in Commission, made provision for the intervention of an unregistered organisation of employees in an hearing of an application for certification of an agreement: "It is sufficient to indicate that applying the ordinary meaning of the words s.43(2) should be construed as regulating only the intervention rights of organisations registered under the Act with the consequence that all other applications for intervention are determined under s.43(1). The contrast between the language in ss.(1) and (2) of s.43 is telling. Section 43(1) uses the words " an organisation, a person (including the Minister) or a body ". Section 43(2) uses only the expression "organisation". It must be assumed that the omission of the words "a person... or a body" was deliberate and was intended to cut down the broad discretion conferred on the Commission by s.43(1) but only in as much as that discretion exists in relation to registered organisations. As is apparent, in our view an examination of the Parliamentary materials does not cast doubt on that construction. To the contrary it reinforces it. It follows that to uphold the appellant's submission would be a misapplication of the purposive approach to statutory construction." 26 [19] According to the Full Bench, s.43(2) of the Act only " cuts down ", or otherwise fetters, the broad discretion available at s.43(1) in respect of a registered organisation under the Act. The discretion, in relation to an application for certification of an agreement made under s.170LK of the Act, remains at large in relation to " a person (including the Minister) or a body." [20] In the circumstances that were before it, the Full Bench subsequently came to the view that the BHTEU, an unregistered employee organisation for the Act's purposes, was capable of being granted leave to intervene (under s.43(1) of the Act) in a hearing for an application for certification of an agreement made pursuant to s.170LK of the Act. [21] In the circumstances before the Commission as presently constituted, the SDA(NSW) is not a registered organisation under the Act. It is a state based organisation registered under the applicable NSW Act. [22] It would appear on the Full Bench's reasoning, consequently, that the SDA(NSW) is an entity that is potentially capable of being granted leave to intervene in an hearing for an application for certification of an agreement made pursuant to s.170LK of the Act. [23] Having established this, are there grounds on which the Commission might exercise its broad discretion favourably in relation to the SDA(NSW)'s application? [24] The Full Bench in Re: Formula One examined the reasoning in relation to the exercise of the broad discretion at s.43(1) of the Act in respect of the decision before it that was subject to appeal. [25] At first instance, the Full Bench commented generally that the Commission need not necessarily have to determine contested questions of fact in relation to the submissions that have come before it: " In this case a number of the grounds were based on what was said to be a lack of evidence of certain matters upon which the Deputy President relied or to which he referred . It is often the case that applications for intervention are dealt with primarily by way of submission and unsworn documents. Consistent with the Commission's statutory licence to proceed informally the evidentiary niceties are often not observed. There are several good reasons why this should be so. An application to intervene should be seen in its proper context as a procedural application. It may be inappropriate to decide issues which are fundamental to the substantive application in the course of an application for intervention. It is rarely necessary to make findings of fact at such an early stage and the Commission is usually able to obtain a sufficient grasp of the issues from submissions to decide the intervention application. That is not to say that a party wishing to call evidence should not be permitted to do so. For example, an application which is accompanied by a statutory declaration attesting to the facts upon which the applicant relies may be very helpful in some cases. It is a matter for the Commission in light of the issues and the other circumstances to decide, however, whether it is necessary to go to the next stage and make findings on contested questions of fact. We think it would be unfortunate if the exercise of the Commission's power to grant intervention were to be encumbered with formal evidentiary requirements and fact finding. In most case that would be unnecessary, potentially costly and certainly productive of delay". 27 [26] Given this context, the Full Bench then considered the factors that the Deputy President considered persuasive in relation to the favourable exercise of discretion as it applied to the application for leave to intervene by the BHTEU. [27] In so determining the basis on which the Deputy President exercised his discretion, the Full Bench commented as follows: "[18] The appellant's contention that this construction leads to absurdity cannot be accepted. Why the legislature would choose to limit the rights of registered organisations but not of other entities is not clear, but it is not manifestly absurd to do so. Furthermore the power conferred by s.43(1) is discretionary. Under that section an entity only has the right to call for the exercise of the discretion. It does not have a right to an exercise of the discretion in its favour. The discretion will be exercised having regard to the circumstances of the particular case and the statutory context including the terms of s.43(2). The meaning of the words is clear and we are unconvinced that we should depart from the plain meaning on the grounds of claimed absurdity. Where a union that is not registered under the Act (and thus is not an "organisation" within the meaning of s.43(2)) applies for leave to intervene in an application for certification under Division 2 or 3 of Part VIB of the Act, the Commission will, in considering whether to exercise the discretion to grant leave under s.43(1), place due weight on the evident intention of the Parliament to limit intervention in s.170LK agreement applications. Compelling reasons would be required for a grant of leave to intervene under s.43(1) to a union which is not registered under the Act if an "organisation" applying for leave in the same circumstances would be excluded under s.43(2). For the reasons we set out below, the decision of the Deputy President was consistent with this approach . [19] Our conclusion on the construction issue is consistent with, and supported by, the Full Bench decision in AMACSU and another v Qualiflyer Group Computer Care Centres GmbH ." 28 (Emphasis added) [28] Further, in respect of whether or not the unregistered organisation had an appropriate, current authority to represent any employee/'s interest/s, the Full Bench commented further: "If indeed Ms Mustard has since left the appellant's employment, and we have no reason to doubt it, that does not suggest that on the material before him the Deputy President was in error. It may provide a ground to ask the Deputy President to withdraw the grant of leave , but that is not a matter for this Bench." [29] The Full Bench also stated that: " The Deputy President referred to a number of other matters such as the nature of the Commission's jurisdiction under Part VIB and the evident intention of the Parliament to limit intervention in s.170LK agreement applications. Clearly these were relevant considerations ." 29 [30] The SDA(NSW) has also submitted, it would appear, that little weight should be given to the Full Bench decision in Re:Formula One as it is conclusions were unjustified, and/or were obiter dicta. [31] On a fair reading, the comments by the Full Bench, taken together, and in the context in which they inform the Bench's approach to the appeal grounds before it, do not appear to be obiter dicta, as the SDA(NSW) claim. That is, it is difficult to conclude on the reasoning of the Full Bench that it would have upheld the decision of the Deputy President in the absence of the particular finding that His Honour believed, on the materials before him, that the BHTEU had been requested to represent a (then) current employee (Ms Mustard), and \or if His Honour had not given weight to the evident intention of the Parliament to limit intervention in applications for certification of agreement made under s.170LK of the Act. Indeed, the Full Bench considered the Deputy President's decision to have been " consistent " with the approach it articulated. [32] Even if the Full Bench's comments were to be construed as obiter dicta, they nonetheless must be taken as providing demonstrable and intentional guidance on the part of the Full Bench in relation to the exercise of discretion at s.43(1) of the Act. [33] The Commission notes that it is under an obligation to follow Full Bench decisions of this Commission: "The Commissioner decided not to follow a Full Bench authority which he regarded as binding. That was a fundamental error which deprived Pacific Access of the success which it was entitled to in accordance with binding authority. Whilst the Commissioner made it clear he thought the decision was wrong, he was nevertheless under a clear duty to follow it. His failure to follow an authoritative Full Bench decision was a serious error of principle which attracts the public interest. This alone is reason to grant leave to appeal and to quash the directions." 30 and further "Although the Commission is not, as a non-judicial body, bound by principles of stare decisis , as a matter of policy and sound administration it has generally followed previous Full Bench decisions relating to the issue to be determined, in the absence of cogent reasons for not doing so. In another context three members of the High Court observed in Nguyen v Nguyen : "When a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law: see Queensland v The Commonwealth (1977) 139 CLR 585 at 620 et seq, per Aickin J." While the Commission is not a court, the public interest considerations underlying these observations have been applied with similar if not equal force to appeal proceedings in the Commission ". 31 [34] In view of the above, the Full Bench in Re: Formula One provides the following guidance as to the exercise of the discretion to grant leave to intervene to a body that is an unregistered organisation of employees: where an employee organisation not registered under the Act applies for a grant of leave to intervene, weight should be given to the evident intention of the Parliament to limit intervention in application for certification of agreements made pursuant to s.170LK of the Act, and to Part VIB itself; "[c] ompelling reasons " would be required before leave to intervene is granted (in such an application) to an unregistered organisation of employees (" a union not registered under the Act ") if, in the same circumstances, a registered organisation for the Act's purposes would have been excluded under s.43(2) of the Act; and if leave to intervene has been granted to an unregistered organisation that does not have an appropriate, current authority from an employee to represent their interests, that fact might provide a ground for an application to withdraw the grant of leave. [35] In view of the second bullet point above, what then are the requirements for leave to intervene to be granted in relation to s.43(2) of the Act? [36] Section 43(2) reads as follows: (2) If the matter before the Commission is an application under Division 2 or 3 of Part VIB for certification of an agreement, the Commission: (a) must, on application, grant leave to intervene in the matter to any organisation of employees that was requested to represent a person as mentioned in sub section 170LK (4) in relation to the agreement, provided the request was not withdrawn; and (b) except as mentioned in paragraph (a), must not grant leave to intervene in the matter to an organisation of employees other than one that is proposed to be bound by the agreement." [37] Putting aside the role of the conjunction between s.43(2)(a) and s.43(2)(b) of the Act, it would appear that an organisation of employees registered under the Act must be granted leave to intervene in the following circumstances: there must be an application before the Commission under Division 2 or 3 of Part VIB of the Act; and the organisation of employees was requested to represent a person as mentioned in sub section 170LK (4) in relation to the agreement, provided the request was not withdrawn; and except as mentioned immediately above, leave to intervene in the matter must be granted to an organisation of employees that is proposed to be bound by the agreement. [38] The Commission is satisfied that there is an application before it that is made under Division 2 of the Act 32 . It is in respect of this application that the application for leave to intervene under s.43(1) Act has been made. [39] Unlike the circumstances of the decision under appeal in Re: Formula One , there is no evidence (or submission) placed before the Commission in this instance that the SDA(NSW) has been requested to represent a person as mentioned in s.170LK (4) of the Act, pursuant to s.43(2)(a) of the Act. [40] Indeed, but only so far as it is relevant, no evidence has been put to the Commission that the SDA(NSW) has any members at the workplace in question. [41] Further, because it is not an organisation registered under this Act, the SDA(NSW) is not an organisation capable of being bound to the Agreement for purposes of s.43(2)(b) of the Act. That is, the SDA(NSW) is not seeking to be bound by the Agreement. [42] In view of these findings at least, the SDA(NSW) is not an organisation that would have been capable of being granted leave to intervene if it had been an organisation registered under the Act. [43] In the Commission's view, weight should be given to this finding in determining the exercise of the discretion at s.43(1) of the Act. In this regard, the Full Bench in Re: Formula One stated: "Where a union that is not registered under the Act (and thus is not an "organisation" within the meaning of s.43(2)) applies for leave to intervene in an application for certification under Division 2 or 3 of Part VIB of the Act, the Commission will, in considering whether to exercise the discretion to grant leave under s.43(1), place due weight on the evident intention of the Parliament to limit intervention in s.170LK agreement applications" . 33 [44] On the basis of this proposition, the Full Bench in Re: Formula One considered whether or not the Deputy President in the appeal proceedings before it had given appropriate weight to such a matter in reaching its decision in relation to the discretion at s.43(1) of the Act. The Commission as presently constituted, accordingly, has given weight to the same consideration. [45] Notwithstanding this, on the Full Bench's reasoning, in such circumstances as these, " compelling reasons " would be necessary to grant leave to intervene to a non-registered organisation. Do such compelling reasons exist in the circumstances of this application? [46] The Full Bench in Re: Formula One considered the Deputy President's reliance on " the apparent attempts " by the union to seek discussions and/or an agreement with the appellant as a basis for his decision to grant leave to intervene. It did not find these to be an irrelevant consideration. 34 [47] In this regard, so far as it goes to weight, there were no such attempts put in evidence by the SDA(NSW) in relation to the Agreement that forms the application for certification of the Agreement currently before the Commission. For its part, the Applicant submitted that there was no history of representation in the workplace, of any order, by the SDA(NSW), at least since the transition, seemingly, to comprehensive certified agreements under the Act in the late 1990s (and up to and including the comprehensive Agreement now before the Commission). [48] The Full Bench in Re:Formula One further considered the Deputy President's reliance on the allegations made by the BHTEU as to the " invalidity " of the application. The Full Bench found the " the Deputy President heard the appellant's and the union's version of events and decided that there was some weight in the union's allegations ". [49] The Full Bench went on to state that: "We infer he concluded that on a full hearing of the matter a finding of invalidity was a possibility. We add that to uphold the appellant's submission would be to impose a test for intervention which might require the whole of the evidentiary case to be put on the validity question before deciding whether intervention was appropriate. Such a requirement could lead to overlap between the intervention application and the substantive matter and cause unwarranted delay". 35 [Emphasis added] [50] It would appear on the Full Bench's reasoning that a member at first instance is entitled to form a preliminary view, or entertain " a possibility " in relation to the evidence of invalidity of an agreement, but not determine the facts, as step towards exercising the procedural discretion at s.43(1) of the Act. Such a view, as formed (and seemingly not necessarily articulated in detail or even implied) would contribute to the wider circumstances relevant to the exercise of discretion. [51] In the matter now before the Commission, the Commission has had put before it a considerable body of detailed submissions, to which it has given close consideration; perhaps more than is usually warranted for purposes of resolving a matter of procedural discretion. [52] The Commission is not persuaded in the circumstances that the SDA(NSW)'s submissions give rise to what the Full Bench described as " compelling reasons ", which might justify it being granted leave to intervene in this application for certification. [53] The submissions by the SDA(NSW) in this matter, read along side of those of the Applicant, do not give cause for the Commission to conclude that the State employee association's intervention is made " compelling " for purposes of its own interests in the application and\or the proper completion of the process involved in the consideration of the application for certification in relation to s.170LT(1) of the Act. [54] In a different sense, while the SDA(NSW) has contested numerous of the submissions made on behalf of Adjac Holding Pty Ltd, and particularly so in relation to proper identification of the underpinning State award, the agitation of an issue or issues alone does not give cause for the Commission to exercise its discretion in SDA(NSW)'s favour, in the context in which the Full Bench has considered that discretion. [55] Generally, in the circumstances of this application in relation to the exercise of the discretion at s.43(1) of the Act, the Commission has had regard to and considered: the various submissions that were placed before it, including those summarised, in some detail, above; Full Bench guidance in relation to the weight to be given to the exercise of discretion in light of a request for leave to intervene in an application for certification of an agreement made pursuant to s.170LK of the Act 36 (in light of Parliament's intention to circumscribe such intervention); the fact that the SDA(NSW) is not an organisation of employees capable of intervention by way of s.43(2)(a) " and " s.43(2)(b) of the Act; the fact that the SDA(NSW) is not acting in any representative capacity for any employee of the Applicant who may be subject to the Agreement should it be certified; that there is no evidence before the Commission that the SDA(NSW) has any recent history (that is since the time the workplace has been regulated seemingly by comprehensive agreements certified under the federal Act) of seeking to represent any of the Applicant's employees in any workplace role, and that remains so in relation to the comprehensive certified agreement now before the Commission that has been made between the employer and its employees (and on the basis of unanimous support); the objects (s.170L) and functions of the Commission (s.170LA) as prescribed in Part VIB of the Act; and the inconvenience to the Applicant caused by further delay in discharging the Commission's obligations pursuant to s.170LT(1) of the Act. [56] The Commission, consequently, is not persuaded it should exercise its procedural discretion at s.43(1) of the Act in favour of the SDA(NSW). [57] Further, the Commission is of the view that it should no longer cause " unwarranted delay " 37 in finalising the application. Consequently, the application for certification will be re-listed for hearing promptly. BY THE COMMISSION: COMMISSIONER RICHARDS Appearances: M. Guymer for the National Retail Association J. Ryan for the Shop Distributive and Associated Employees Association (NSW). Hearing details: 2005 Brisbane: March 23. Printed by authority of the Commonwealth Government Printer <Price code C> 1 Giudice J, Lawler VP and Jones C, Formula One Catering Services Pty Limited t/as Quality Cuisine Catering , [PR930605], 23 May 2003. 2 Submissions in Reply PNS4 and 6 3 Transcript, 16 February 2005, PN16 4 Ibid , PN17 5 Ibid , PN18 6 Ibid , PN20 7 Applicant's Submissions, page 6. 8 Ibid , page 6 9 Submissions in Reply PN26 and see also PN28 10 Ibid, PN9 11 Softplay Pty Limited v Department of Industrial relations (Insp McMahon) NSWIRCComm 586, 17 December 1999 12 Submissions in Reply, PNS10-17 13 Ibid, PN19 14 Submissions of Applicant, page 11 15 Transcript, 16 February 2005, PN31 16 Ibid PN33 17 Ibid , PN37 18 Submissions of Applicant, page 4 19 These included: Allan v Transurban City Link (2001) 75 ALJR 1551; Re McHattan and Collector of Customs (New South Wales) (1977) 1 ALD 67; Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd (1994) 49 FCR 250; Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 71 ALR 73; Re: Australian Foremen Stevedores Association and Others v Secretary, Maritime, Policy Division, Department of Transport and Communications (1989) 20 FCR 377 20 ALD 306; Ogle v. Strickland (1987) 71 ALR 41; Broadbridge v. Stammers (1987) 76 ALR 339; Onus v Alcoa of Australia Pty Ltd (1981) 149 CLR 27; Right to Life Association (NSW) Inc v Secretary of the Commonwealth Department of Human Services and Health (1994) 125 ALR 337; United States Tobacco Co v Minister for Consumer Affairs (1988) 83 ALR 79; Australian Conservation Foundation Incorporated v Commonwealth (1980) 146 CLR 193 ; Tooheys Limited v Minister for Business and Consumer Affairs (1981)54 FLR 421; Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 7; Ricegrowers Cooperative Mills Ltd v Bannerman (1981) 38 ALR 535 per Bowen CJ and Franki J; Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 (31 August 2000) 20 Submissions of Applicant, pages 12-40 and Submissions in Reply, PN7 21 Transcript, 16 February 2005, PN84 22 Milne Foods Pty Ltd Certified Agreement 2004 (AG2004/8602) 23 As the Commission has ascertained, clause 41 of the Transport Industry - Retail (State) Award 1999 is headed " Area, Incidence and Duration ", and reads: " This award shall apply to drivers and loaders of trolleys, drays, carts, motor wagons, motor bicycles used for the carriage of articles or merchandise, and other power-propelled vehicles, carters, brakesmen or extra hands, and all grooms, stablemen, yardmen, and trace boys employed in connection therewith by retail storekeepers [...] ". The explanatory documentation distributed by the Applicant reveals that the "Delivery Drivers" were classified at Grade 2 of that Award (see Clause 9). Further, Clause 13 of the Award is headed " Collecting Moneys" and reads : " Employees who are required to collect moneys, excluding not negotiable cheques, on behalf of the employer and/or the employer's clients, upon delivery of goods, shall be paid the following additional rates as provided for in Items 1-5 of Table 4 of Part B according to the amount of carried as set out below: [...]". 24 Submissions in Reply, PN58 25 Giudice J, Lawler VP and Jones C, Formula One Catering Services Pty Limited t/as Quality Cuisine Catering , [PR930605], 23 May 2003, PN 21 26 Ibid, PN17 27 Ibid, PNS21-22 28 Ibid, PNS18-19 29 Ibid, PN28 30 Giudice J, McBean SDP and Lewin C, Pacific Access Limited [Q4738], 11 August 1998 31 Ross VP, Duncan SDP and Roberts C, Yasmin CB Setin v. Ripon Pty Ltd t/as Parkview Hotel, [PR938639], 25 September 2003, PNS48-49 32 What constitutes an application for purposes of s.43(2) of the Act has been considered in Re : Golden Circle Limited , [PR953611], 1 December 2004 33 Re: Formula One, PN18 34 Ibid, PN26 35 Ibid, PN27 36 Ibid , PN18 37 Ibid PN21