PR947364 PR947364 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.18(1)(b) RAO Schedule - application for registration by an association of employees Australian Principals Federation (D2003/39) SENIOR DEPUTY PRESIDENT WILLIAMS MELBOURNE, 2 JUNE 2004 DECISION AND DIRECTIONS Application for registration - application that member disqualify himself from further participation refused - directions issued Decision re application for disqualification [1] On 17 May 2004, I issued a decision 1 in which I refused an application by the Australian Education Union (the AEU) that I disqualify myself from further participation in the application for registration under the Workplace Relations Act 1996 (the Act) as an organisation of employees of an association called the "Australian Principals Federation" (the APF). [2] When the matter came back before me on 20 May 2004 for a directions hearing, the AEU made another application that I should not further participate in this matter on the basis of apprehended bias. The APF lodged a written response on 26 May 2004 and the AEU lodged a written reply on 31 May 2004. [3] For the purpose of making this application, the AEU did not cavil with the applicable principles as set out in that decision. It did, however, rely on a ground which was said to arise from the decision itself. In particular, reference was made to paragraphs [26]-[30] of the decision which I said - [26] I have earlier recorded the submission of the AEU that, from a practical point of view and from the point of view of a reasonable observer, the APF application is likely to be characterised as largely a rehearing of the VPF application. The VPF application and the APF application, when viewed as the AEU would thus have them viewed, are not to be properly regarded as, in the words of the High Court in Illaton , "two sets of proceedings between different interests about unrelated matters". This submission of the AEU recognises and acknowledges that, in so far as the APF application may be and continue to be a contest between the APF and the AEU, it is but another step "in one overall contest between the same group of interests". [27] In my decision granting the VPF registration as an organisation of employees, I made, as I was obliged to do, findings relating to the VPF's satisfaction of the relevant criteria for registration. The findings were made after a lengthy hearing in which extensive oral and documentary evidence was advanced. Each of the findings was based upon the evidence that was before me in those proceedings. None of those findings required me to express a preference for the evidence of a VPF witness over that of an AEU witness. None of those findings required any findings as to credit. [28] It is true that the decision in Illaton was made in the context of proceedings in the Commission which had related to actual or potential disputes. Indeed the Court's observed - the functioning of the Commission requires that its members participate in the determination of matters in circumstances where they have a familiarity with the industry in which the particular dispute arises, with the context of the dispute and, inevitably, with facts relevant to the dispute and with one or more of the parties to the dispute. In that regard, it has long been recognized that, in most cases, that familiarity is an advantage rather than a disqualifying factor. [(1992) 107 ALR 581, at 583] [29] The Court then followed that observation with a reference to the statutory obligation that the President constitute industry panels. The Act has since been amended so that the constitution of such industry panels is no longer a statutory obligation.[s.37(1)] Rather it is now a matter for the President's discretion. The fact is that the panel system of allocation responsibility amongst members has continued. Since 1989, amongst other functions, the hearing and determination of applications for registration has been reserved to particular members of the Commission. At first, the IR Act conferred such a power upon "designated Presidential Members" [s.189(1)] and the President was required to "designate at least one President Member to be responsible for the exercise of the power".[s.38(1)] The WR Act now empowers the President to establish a panel, called the Organisations Panel, "to exercise the powers of the Commission under" the RAO Schedule.[s.14(1) RAO Schedule] It is a matter of record that the President has established such a panel. One such power conferred by the RAO Schedule is the determination of applications for registration.[s.19(1) RAO Schedule] Another is the determination of applications to alter the eligibility rules of organisations. The Court's observations as to relationship between the industry panel system and the functioning of the Commission are pertinent to the exercise of the Commission's powers so conferred by the Schedule. [30] A balance must be struck between fairness to the parties and the maintenance of confidence in the Commission on the one hand and considerations of practicality on the other. As to the latter, there are other members of the Organisations Panel to whom the APF application might be allocated. The proceedings in respect to the application have not passed beyond the preliminary stage. It cannot be suggested that any prejudice would be experienced by any party if the application was to be reallocated to another member. However, the issue of practicality as considered by the High Court in Illaton went not merely to the question of reconstituting the Commission for the purpose of hearing and determining the s.115 application. It went also to the fact that such reconstitution would require the Commission, as reconstituted and without the participation of Deputy President MacBean, to determine factual issues ab initio despite the determination of those issues by the Deputy President after a lengthy hearing.[(1992) 107 ALR 581, at 583] [4] Based upon these paragraphs, in particular paragraph [30], the AEU submission was as follows - Now, in our respectful submission what your Honour's decision does is apprehends - I am sorry, suggests that your Honour does not intend to begin afresh in respect of factual findings that your Honour made in what your Honour regards to be the related proceeding, that is, the VPF application earlier made and that your Honour does not intend to begin ab initio in hearing and dealing with this application because what your Honour says in essence in paragraph 30 is that a practical consideration in support of your Honour not disqualifying yourself is that if your Honour was to disqualify yourself another member of the Commission would have to begin ab initio. The suggestion therefore is that your Honour does not intend to begin ab initio and that is the practical convenience for your Honour not disqualifying yourself and in our respectful submission that raises an apprehension that your Honour will not decide the matter in accordance with the appropriate principles. That is, decide the case impartially or without prejudice . 2 [5] The AEU's submission is without foundation. Paragraph [30] does no more than agree with an AEU submission that a balance must be struck between fairness and practicality, acknowledge that it would be practical for the matter to be reallocated without prejudice to the parties and record my analysis of the High Court's decision in relation to the issue of practicality as it applied in the circumstances of the case then before the Full Bench of the Commission. [6] In my view, no reasonable person could find any suggestion or inference in that passage when read on its own or as part of the whole decision that I considered that I did not intend to begin ab initio in hearing and determining the APF application and/or that I intended to do other than decide that application " on the material before me impartially and without prejudice ". [7] The AEU's application is therefore refused. Directions [8] Counsel for the AEU informed me at the directions hearing that he was instructed that the AEU intended to appeal my earlier decision not to disqualify myself. Despite that expressed intention and the making of the further disqualification application, the AEU participated without demur in making submissions as to the further programming of the APF's application. I, therefore, intend to make directions for that purpose. [9] In respect to such directions, the AEU raised the issue as to order in which parties should be required to file and serve statements and other material. It contended that, as a matter of natural justice, the objectors should not be required to file and serve their material first as they were entitled to know the material facts upon which the APF relies, i.e. they should be given a proper opportunity to answer the case put against them by the APF. [10] There is no doubt that s.110(2) of the Act makes the Commission " master of its own procedure ". 3 There is equally no doubt that, in exercising its functions, the Commission must observe the rules of procedural fairness. 4 A decision as to the order in which parties in a registration application should be required to put their cases is one that, in my view, is to be made in the context of the nature of such proceedings. [11] In National Tertiary Education Industry Union v CPSU, the Community and Public Sector Union and Others 5 , I referred in some detail to the twin questions of the onus of proof in respect to applications for consent to the alteration of eligibility rules and the traditional procedural requirement that, in such cases, objectors present their cases first, followed by the applicant and then by replies by the objectors. 6 I concluded that the traditional approach should continue to be followed. 7 In Re Victorian Principals Federation 8 , I expressed the view that the same approach and procedure should be applied in registration applications. 9 [12] In respect to registration applications, the traditional approach appears to me to be based upon the concept that " prima facie a representative association, providing that it complies with the prescribed conditions, has a right to be registered ". 10 Such a concept, in the context of the registration provisions as then prescribed by the Conciliation and Arbitration Act 1904, was endorsed by the High Court in Re Coldham and Others; Ex parte Brideson . 11 There are, of course, differences between the then applicable provisions and those now contained in the Act. However, under s.19 of Schedule 1B - Registration and Accountability of Organisations (the RAO Schedule) of the Act, the Commission is obliged to register an applicant association " if, and only if " all the criteria specified in s.19(1) are met. The Commission is obliged to refuse to register an applicant association, subject to the exception referred to in s.19(2), if any one of the criteria specified in s.19(1) is not met. Subject to that exception, each of the criteria specified in s.19(1) must be satisfied. 12 To paraphrase the Full Bench in Australian Education Union v Victorian Principals Federation 13 , to succeed in an application for registration, the applicant association is required to make good the criteria specified in paragraph (a) to (j) of s.19(1). There appears to me to be no material difference between the requirements in this respect of the current legislation and the requirements that prevailed at the time of the High Court's decision. [13] A similar submission to that advanced in this case by the AEU was made by the Health Services Union of Australia (the HSUA) as an objector in a matter concerning application by the Australian Nursing Federation (the ANF) for consent to an alteration of its eligibility rules. 14 In that case, in the course of dealing with an application by the HSUA for an order that the ANF application be dismissed under s.111 (1)(g) of the Act, I expressed the following view - [15] The HSUA's contention of procedural fairness appears to me to be essentially based upon the requirement in registration and eligibility matters that an objector put its case first. It is a requirement that has long been applied in registration and eligibility rules alteration applications. In this particular matter, as in other similar matters, despite arguments being advanced to the contrary, I have consistently adhered to this traditional approach. There is nothing, in my view, in the provisions of the Act which would encourage a departure from such an approach. It should be noted that the approach is a procedural one and bears no relation to imposing upon one party or another an onus to make out its case. It is ultimately be [sic] the task of any applicant to satisfy the designated Presidential Member that its application should be granted. The traditional requirement that the objector put its case first does not derogate from the task faced by the applicant. [14] In its decision in respect to an appeal by the HSUA against my decision, the Full Bench noted that the HSUA sought to re-argue the points that had been put unsuccessfully to me at first instance, including a contention based upon the procedural unfairness of being required to put its case first. The Full Bench rejected the HSUA's submissions for the reasons I had given. 15 [15] I am not convinced, by the submissions made by the AEU, that procedural fairness demands that I should depart from the traditional approach in this case. That approach does not appear to me to prevent any party from putting before the Commission everything that it may wish to put. The directions will therefore require that the objectors file and serve their material first. [16] In so far as the directions permit what might be described as "discovery and inspection of documents", the Commission expects that the AEU and the APF will set out their respective requests with some particularity, will not engage in "fishing expeditions" and will cooperate with one another in the production and inspection of documents sought. Should any difficulties arise in relation to any aspect of discovery and inspection, the parties should have recourse to the Commission. However, the Commission would need to be convinced that a request for the production of documents should be allowed to delay compliance with the directions concerning the filing and service of a party's material. [17] The AEU requested that I " pencil in " a date for the return of summonses directed to persons who are not parties to the APF application should the issue of such summonses be required by any of the parties. I am not prepared to do so at this stage. Should a party wish to have a summons issued, they should make such a request as early as practicable and the Commission will then consider whether the summons will be issued and an appropriate date for its return. [18] Subject, therefore, to further order or direction of the Commission, the Commission directs - 1. that access (for the purpose of inspecting and copying the same) to the list of members of the Australian Principals Federation (the APF) marked "TH1" attached to the declaration of Terry Howard declared on 15 December 2003 and filed in support of the application for registration of the APF as an association of employees) shall be allowed to Ms. Linda Gale, an official of the Australian Education Union (the AEU), upon the provision to the Commission of a written undertaking signed by her that, unless permitted by the Commission, she will neither disclose the contents of that list to any person other than a legal practitioner acting on behalf of the AEU in this matter nor use the contents of that list for any purpose whatsoever other than the prosecution of the AEU's objection in this matter; 2. that, on or before Friday, 11 June 2004, the AEU shall forward to the APF a written request setting out a list of the documents that it seeks to have the APF produce; 3. that, on or before Friday 2 July 2004, the APF shall provide the AEU with access (for the purpose of inspecting and copying the same) to such documents as it is able in answer to the request referred to in paragraph 2, provided that any officer, official, employee or representative of the AEU to whom such access is provided shall have first provided the Commission and the APF with a written undertaking signed by that person that, unless permitted by the Commission, that person will neither disclose the contents of that list to any person other than a legal practitioner acting on behalf of the AEU in this matter nor use the contents of that list for any purpose whatsoever other than the prosecution of the AEU's objection in this matter; 4. that, on or before Friday, 23 July 2004, each outstanding objector shall file in the Commission and serve upon the APF: 4.1 a copy of an outline of its argument in support of its objection, and 4.2 a copy of the statement of any witness upon which it intends to rely in support of its objection, and 4.3 a copy of any document upon which it intends to rely in support of its objection; 5. that, on or before Friday, 30 July 2004, the APF shall forward to the AEU a written request setting out a list of the documents that it seeks to have the AEU produce; 6. that, on or before Friday, 20 August 2004, the AEU shall provide the APF with access (for the purpose of inspecting and copying the same) to such documents as it is able in answer to the request referred to in paragraph 2, provided that any officer, official, employee or representative of the APF to whom such access is provided shall have first provided the Commission and the AEU with a written undertaking signed by that person that, unless permitted by the Commission, that person will neither disclose the contents of that list to any person other than a legal practitioner acting on behalf of the APF in this matter nor use the contents of that list for any purpose whatsoever other than the prosecution of the APF's application in this matter; 7. that, on or before Friday, 10 September 2004, the APF shall file in the Commission and serve upon each outstanding objector: 7.1 a copy of an outline of its argument in support of its application, 7.2 a copy of the statement of any witness upon which it intends to rely in support of its application, 7.3 a copy of any document upon which it intends to rely in support of its application; 8. that, on or before Friday, 24 September 2004, each outstanding objector shall file in the Commission and serve upon the APF any further statements or documents upon which the objector intends to rely in support of its objection and any statements or documents in reply to any of the material filed and served by the APF in accordance with paragraph 7 hereof; 9. that the matter be listed in Melbourne 10.30 a.m. on Thursday, 23 September 2004 for report and the hearing of submission as to the location of hearings; 10. that the matter be listed for hearing commencing at 10.30 a.m. (at a place or places to be determined following the hearing referred to in paragraph 9 hereof) on Monday, 4 October 2004 - Friday, 8 October 2004, Monday, 11 October 2004 - Friday, 15 October 2004, Monday, 22 November 2004 - Friday, 26 November 2004, and Monday, 29 November 2004 - Friday, 3 December 2004; 11. that, if the objection of an objector is settled and is or is to be withdrawn and the terms of the settlement of the objection have been reduced to writing, the APF shall as soon as practicable forward a copy of those terms of settlement to the Commission and to each outstanding objector; and 12. that the APF and any outstanding objector may, at any time and on written notice to each other party apply for a variation and/or revocation of any and/or all of these directions. BY THE COMMISSION: SENIOR DEPUTY PRESIDENT Appearances : P. Gardiner for the Australian Principals Federation. M. Bromberg SC for the Australian Education Union. Hearing details: 2004. Melbourne: May 20. 1 Print PR946706. 2 Transcript PN384-PN385. 3 Re Riordan; Ex parte Vista Paper Products (1991) 39 IR 39. 4 R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd (1989) 167 CLR 513; Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corp Pty Ltd (1993) 112 ALR 193; Re Australian Railways Union; Ex parte Public Transport Corporation (1993) 117 ALR 17. 5 (1999) 93 IR 365. 6 Ibid, at 405-410. 7 Ibid, at 409 8 (1999) 95 IR 262. 9 Ibid, at 275. 10 The Association of Professional Engineers, Australia and The Professional Officers Association, Commonwealth Public Service and Others (1952) 73 CAR 134, at 151 (Kelly CJ and Wright J). 11 (1989) 166 CLR 338, at 348. 12 Re Victorian Principals Federation (1999) 95 IR 262. See also Re Chamber of South Australian Employers Inc (No. 2) (1991) 43 IR 424, at 431; 1991/12 CAR 252, at 259; Re Managers and Financial Executives Association Print S7010, 15 June 2000 (Williams SDP); Re The Master Plumbers and Mechanical Contractors Association of New South Wales Print PR930000, 4 April 2003 (Duncan SDP); Re The Master Plumbers and Mechanical Contractors Association of New South Wales Print PR944471, 12 March 2004 (Duncan SDP); Re Society of Australian Surgeons Print PR934448, 10 July 2003 (Williams SDP); Re ACT Visiting Medical Officers Association PR946319, 7 May 2004 (Williams SDP). 13 (2002) 113 IR 365, at 377-378. 14 D No. 30029 of 1998. 15 Re Health Services Union of Australia Print R9776, 6 October 1999 (Giudice J, Ross VP and Foggo C). Printed by authority of the Commonwealth Government Printer <Price code D>