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Light on the Hill: Industrial Relations Reform in AustraliaThe Queensland Power Workers' Association: The Story of an Enterprise UnionChris CarberryYou will be generally aware of the factual background of what is now known as the SEQEB dispute of February 1985. My involvement has been as the Solicitor for a group of SEQEB workers now known as the Queensland Power Workers' Association (QPWA). As such I have had occasion to consider the bundle of legislation arising out of that dispute, including the Industrial (Commercial Practices) Act 1984-1987; the Electricity Authorities Industrial Causes Act 1985 ('The Causes Act'); the Electricity Continuity of Supply Act ('The Supply Act'); and the Industrial Conciliation and Arbitration Act ('IC & A Act'). Out of the SEQEB dispute have developed contracts between SEQEB and its individual employees. I briefly return to this later; but for the moment it should be said that those early contracts exist only in SEQEB and are, save for the terms imposed by the Supply Act, subject to the minimum standards imposed by conventional awards under the IC & A Act.
QPWA is an unincorporated voluntary association of about 400 mainly SEQEB blue-collar workers employed in a range of callings. Under its rules it is open to all employees in Electricity Authorities in Queensland; in fact, it has a number of white-collar callings and includes members in other supply Boards . To put QPWA in the context of the SEQEB dispute, out of which it grew, it has members:
Evidence before the High Court in May 1986 indicated that of a sample of 237 persons who answered a ballot, 37 held at the same time joint membership with ETU, one with FCU and one with MOA; on the other hand, 91 had resigned from ETU, and one each from FCU and MOA. QPWA has been held to be a 'trade union' within the meaning of the IC & A Act. QPWA maintains an office in Brisbane, and is administered by an honorary management committee which meets monthly. Regional meetings are held of depot delegates representing members throughout SEQEB.
A recent QPWA newsletter spelled out why it was different. In its own words: 'Members make the rules.
The very existence of QPWA is a fascinating example of the style an organisation could follow when the legislative shackles binding the ordinary citizen to the Industrial Relations Club are removed. If QPWA is any guide, what will emerge is a democratic voluntary organisation with regular and honest consultation and exchange of information structured on a regional basis so as to provide opportunity for settlement of disputes on-site without recourse to 'head office and free from the abuse of spurious external political causes. A perusal of the rules indicates that members have bound themselves to comply with and operate as an industrial union under, and in accordance with, 'any and all applicable laws including the Supply Act, the Causes Act and the IC & A Act. Voting for elections is by secret postal ballot and voting at general meetings may, on the request of one-fifth of the members present and entitled to vote, be by secret ballot. In other respects the rules comply with the minimum requirements of 'statutory objects' set out in the IC & A Act, although one gets the impression that members would have preferred to do away with one compulsory object: 'the imposing of restrictive conditions on the conduct of any trade, calling, business or industry'. My client has been described as Australia's first enterprise union. Rule 2 of its constitution achieves that by opening membership to employees of Electricity Authorities. That is straight forward enough. But the real question is, where does that get you within the system of industrial law and practice we are here debating? What are the rights at law, but also in practice, of individuals or groups of individuals:
We all know how a group of employees working in callings over which established trade unions have been granted coverage by the State Industrial Commission would fare if they appeared in the Commission, either individually or as a group, or in either capacity representing others of the same view. The battle of the Queensland Branch of the United Fire Fighters Union to get out from the AWU is a case in point. Given that QPWA has operated in the Causes Tribunal without registration for some two years, why should the situation be different in that Tribunal and, if it is, is that for any substantive legal reason? The problem arose for me for the first time on 7 February 1986, in proceedings in the Chambers of the Chairman of the Tribunal, His Honour Judge Pratt QC, in a matter notified by my client Association under Section 13 of the Causes Act (Section 36 of the IC & A Act). The full-time official of the Queensland Branch of the Association of Professional Engineers, Australia (APEA) appeared and was granted leave to intervene. A question arose as to the capacity of the Association itself, being unincorporated, to appear and represent its members. APEA submitted that my client 'most certainly would not have had such a right (to make the application) in the State Industrial Commission' and did not therefore have the right before the Tribunal; further, that if the Tribunal had any discretion in the matter, it should note 'that there is already a proliferation of unions covering the industrial interests of members of SEQEB; now the last thing we need is another union looking after the interests of people employed by SEQEB'. APEA also submitted that: 'it is not simply a question . . . that Mr Carberry represents people who might be or have been members of APEA. I think it is also relevant whether he represents any professional engineers, whether or not they are members of APEA...' There we have it! The perceived exclusive right of a registered trade union to represent its calling, members or not, to the exclusion of a rival association within that calling. As it happened, APEA had no interest in the particular matter and withdrew; unfortunately, therefore, our exact status was not decided there and then. But perhaps the most dramatic battle in which we were engaged in this period was a matter which flowed directly from the Association's lack of registered status under any legislation and which started in the Causes Tribunal and ended by a decision of the Full Court of the Queensland Supreme Court. Predominant among the privileges granted to associations registered under the IC & A Act is, of course, incorporation. And despite the frequent references throughout the Act to the status of a 'person' before the law, there are certain obvious privileges reserved to registered trade unions. While we are all bound by awards (Section 31), only a registered union or an employer may apply to be exempted (Section 12(4)). Section 32 denies to an individual person (unless a 'party' as defined)---or indeed denies to an officer of a trade union not registered under that Act and to any person acting on behalf of such a trade union---the standing to apply for rescission or variation of an industrial agreement, decision and the like and for the reopening of any reference or proceeding. As well, an Industrial Inspector or a certified official of a registered union can enter and inspect time and wages records (Sections 126,136). In pursuance of my client's instructions to obtain 'registration' I was to discover that the new Causes Act, while picking up the jurisdiction (and indeed the practices and procedures) of the Commission, did not pick up the powers of the Registrar to whom is reserved the function of registering trade unions under the IC & A Act. He is to have regard, of course, to the entrenched privileges of the Club; thus he may require evidence that the applicants 'should not in the public interest or for other good reason join an existing trade union' (Section 46(1Xe)) and that 'the registration of the applicants will not unjustly affect any other industrial union' (Section 46(1 Xd)). A tactical decision had to be made. Should my client seek registration and coverage of callings within the Electricity Authorities from the Commission,, where it would be compelled under existing legislation to satisfy the 'conveniently belong' and 'multiplicity' tests, when the best evidence it had of why it should go it alone was the very existence of the specialist Tribunal which grew out of the same factual background---the 1985 SEQEB dispute? Why engage in possibly years of litigation to get a ticket in a Tribunal in which matters concerning our members could not be heard? Or should the QPWA represent to the Government that the Causes Act ought to be amended to provide a registration procedure in the Tribunal? (I am instructed that representations were made through various channels but, by April 1986, showed no reasonable prospect of success.) An opportunity to demonstrate the point arose when, on the 27 March 1986, SEQEB refused entry and inspection to officers of QPWA and, incidentally, to myself. A dispute in relation to this matter was notified to the Tribunal and my clients sought in resolution to the dispute:
After preliminary mention, the matter was argued on 28 April, with lengthy submissions from Mr Hartigan QC for 13 intervening unions, Mr David Cooper QC for the employer (SEQEB) and Mr Cedric Hampson QC for my client. His Honour Judge Pratt gave his judgment on 7 May 1986. He found that he did not have jurisdiction to register a union, or to declare QPWA an industrial union, but said he was inclined to declare that it was a trade union and to adopt the submissions of Mr Cooper QC that 'the Tribunal could adopt a procedure which would lead to the recognition of interested associations with whom the Electricity Authority could deal on more than a transitory basis'. He adjourned the matter for two days to hear evidence on these points. Judge Pratt's judgment of 7 May is the most comprehensive statement of the status of QPWA within this new Electricity jurisdiction. The Tribunal had been asked to clarify the question of the QPWA's long-term recognition and representation and the metes and bounds of a recognised but unregistered trade union's rights and obligations qua its members and their employers. Judge Pratt was of course alert to the extraordinary nature of QPWA having, as its criterion for membership, employment within the Industrial Authorities as opposed to 'callings' He was also alert to the requirements under the IC & A Act for an application to supply a list of callings comprised in the membership or objects of the union, as well as the localities or districts in which the members of the union exercise their callings. His Honour said: 'The QPWA is concerned with only one industry and it cannot sensibly say that it is properly based on callings when its sole criterion for membership is not the exercise of callings within an industry but the mere employment in any capacity within the industry'. SEQEB's Counsel intervened, arguing that 'the Tribunal could establish a system for determining and certifying proper parties to represent the interests of employees in the power industry, and could receive a permanent representation order'. Finally, His Honour found that it was 'clear that associations which have not achieved Industrial Act registration or which have no wish to achieve Industrial Act registration may apply to this Tribunal for recognition'. He went on to observe that 'the Tribunal could adopt a procedure which would lead to the recognition of interested associations with whom the Electricity Authority could deal on more than a transitory basis'. It would be an understatement to say that the TLC unions were thrown into absolute panic by those words. Proceedings were interrupted on the afternoon of 9 May when a panting and perspiring articled clerk burst into the Tribunal bearing an Order Nisi of Prohibition, obtained by the TLC unions that afternoon, from the Supreme Court prohibiting the further hearing of the matter, pending a determination by the Full Court of the Supreme Court of the question of whether His Honour Judge Pratt was exceeding his jurisdiction in suggesting that he could set up a system of recognition of associations outside the traditional registration process. When the Full Court came to consider the decision, it unfortunately fell short of analysing Judge Pratt's jurisdiction to make such 'recognition orders'.
You will be aware that the Causes Act set up the Electricity Authorities Industrial Causes Tribunal which was vested, as far as the Electricity Distribution and Supply Industry is concerned, with the powers previously exercised by the Industrial Commission. You may also be aware that the Queensland TLC organised pickets outside this Tribunal and followed a policy of boycotting it. ETU served a log of claims with a view to obtaining a Federal award from the Australian Conciliation Arbitration Commission---apparently in the belief (as perceived by my clients) that Section 109 of the Constitution would operate to defeat the no-strike, no-preference provisions of the 1985 Queensland legislation and would reinstate the sacked SEQEB workers. In the meantime, employees who had returned to work and had refunded superannuation pay-outs received on dismissal were restored to full superannuation benefits under special legislation. Those who stayed 'on strike' or who returned to work but failed to comply with the time-limits imposed by the Superannuation Restoration Act lost much of the superannuation benefits they may have accrued over many years. In early 1985 a substantial number of SEQEB employees, unhappy with ETU's handling of the entire dispute, banded together, in the face of what they saw as a refusal by their unions to represent them in the Tribunal, or at all. Matters came to a head with the 2.6 per cent National Wage flow-on in November 1985. ETU's Queensland Branch was suspended for 6 months by order of the Industrial Court. It is now a matter of public record that SEQEB granted financial and logistical assistance to 239 of its workers who engaged Mr Roly Livingstone, a prominent Brisbane industrial advocate, to represent them before the new Causes Tribunal and to seek awards of that Tribunal to reflect, among other things, that flow-on. In the event, the Tribunal handed down 9 new awards covering the entire Electricity Generation Supply Industry in Queensland. The QPWA was referred to me for advice in August 1985 and there followed a series of matters in the Tribunal between QPWA and SEQEB, including the rectification of certain anomalies which had arisen between conditions of employment of 'old' and 'new' employees. It is significant that, of 24 such anomalies, only one needed to be set down for arbitration; it was eventually settled prior to hearing, concessions being made by all parties. By early 1986, therefore, with the ETU (Qld) suspended for 6 months and, in the face of a clear TLC policy to boycott the new Causes Tribunal, QPWA was filling the void with respect to industrial matters in SEQEB. It engaged in consultations with management regarding safety issues and was able to give undertakings to management in support of certain measures. Indeed, in one matter referred to the Tribunal (the 'Plating Case'), ETU and MOA attended before it to raise their usual objections to QPWA's right to be there, only to end up supporting QPWA's positions. In February 1986, a general meeting of QPWA's members adopted a set of rules. It further resolved to seek registration as an industrial union and later to oppose the making of a Federal award in the industry. To this end, on the 14 May, the Association, through its Counsel, Mr J D Batch, made application to the Full Bench of the Australian Conciliation and Arbitration Commission, then hearing an application by the Queensland Government and the Queensland Electricity Commission and Boards, for orders against further hearing of ETU's application on the grounds that (i) it was not in the public interest, and (ii) the dispute was being dealt with by a State industrial authority (the Causes Tribunal). Needless to say our application was vehemently opposed by ETU and by all other registered unions present, notwithstanding QPWA's obvious interest in the 1985 dispute. The Commission, in a split decision, refused intervention. Mr Justice Ludeke and Deputy President Riordan said: 'The association has failed to establish, should leave to intervene be granted, that it would have any clear attitude to the issues which have been raised for determination. The uncertainty surrounding the association's position is epitomised in its decision to seek the views of its members on the attempt by the Electrical Trade Union to obtain a Federal Award, and in the outcome of the ballot on that subject. The evidence that we have heard concerning the association's activities did not dispel that uncertainty . . ' On the other hand, Mr Commissioner Brown said: 'For my part, I would allow them. The persons who are members of the group or association represented by Mr Batch are employees of SEQEB and many are in occupations that the Electrical Trade Union is registered to represent. Given the extraordinary features of the dispute that has already been found to exist in the industry in South East Queensland, I would allow this group to be heard'. The Commission adjourned for lunch. Not to be put off, I attended the meeting of QPWA's management committee and delegates then in progress over the lunch break and returned that afternoon with an Affidavit of the QPWA's President evidencing a decision of the management committee to oppose a Federal award in the hope that that might dispel the Commission's worries. Not so. The following morning the Commission, again by split decision, refused intervention. QPWA then gave instructions to have this decision tested in the High Court and, on 21 May, His Honour Mr Justice Mason referred to the question of a Full Bench, which heard the matter in Brisbane on 24 June. Unfortunately the decision went no further than to find that if we were to apply under regulation 37 of the Commonwealth Act, the Commission would be bound to hear us. It made no finding as to whether, in our case, the Commission should have exercised its discretion under Section 36(2) and let us intervene. In argument Mr Justice Wilson implied from the Bench that a party being heard under regulation 37 would not have the full rights of intervention of a party granted leave to intervene under Section 36(2) and, specifically, would have no right of cross-examination of the witnesses of other parties. The Chief Justice, Sir Harry Gibbs, in delivering the Court's judgment said; 'The Commission should, and no doubt will, mould its procedure to ensure that the Association's right to a hearing is given full effect'. We returned to the Commission on 26 June and gave evidence in support of the Queensland Government and employer view that there ought not be a further hearing of the ETU application for a Federal award. However, the Commission took the view that we were not there with full status before the Commission and thus could not give evidence on the 'public interest' point. I mention this technicality because, to complete the picture, it was used by ETU to argue before the High Court on 5 May last that QPWA had no interest in ETU's appeal against the Federal Commission's rejection of their Federal award case, as that rejection was, they claimed, based solely on the 'public interest' leg of Section 41(1Xd). The High Court rejected that argument and heard QPWA submissions. Its decision on this appeal is due soon.
Against all odds, the Full Bench of the Federal Commission decided in September 1986 (Deputy President Riordan dissenting) not to proceed with the hearing of ETU's application for a Federal award. In 23 sitting days, the only evidence given by workers of their attitude to a Federal award came from 10 brave QPWA members. This contrasted dramatically with evidence of ETU's failure to consult its members in a similar fashion. In its majority judgment, the Commission, in commenting on ETU's absence from the State arena in reliance on the making of a Federal award, said 'however, it is not easy to understand the union's reluctance since the SEQEB dispute to furnish its members in SEQEB with the support that would be commensurate with its deep misgivings about the legislation under which they work. This would have been one way of demonstrating that the union is actively attempting to put the past behind it but the lack of evidence of union interest in its SEQEB members makes it difficult to conclude that the position will be different if a federal award were made'. This inactivity was perhaps nowhere better demonstrated than in relation to the decision by SEQEB management to offer personal contracts to its employees. Management went to considerable lengths to ensure that the proposal was fully explained; however, the contract is in a form requiring careful reading, and assistance to individuals of a legal nature is probably desirable. We were told that, apart from a general circular from the State Secretary attacking the proposal, ETU's State Council had not formulated any policy, nor had any assistance, legal or otherwise, been offered to the members faced with a difficult choice on an issue which was critically important to their employment. The apparent inertia on the part of the officials of the union towards their members in SEQEB did not sit comfortably with their professed desire to look to the future. There was no provision to structure an employment contract to provide set-off which may be outside award prescription. For ease of reference, I have included in an Attachment the text of Section 32-34 of the November 1985 amendments to the Causes Act, which provide exactly that. I report that QPWA has for some time been negotiating with SEQEB for a Section 32 contract; the responsible Minister and his Commissioner were alerted to this fact in conference on 17 November 1986. Unfortunately no such contract has yet been achieved.
I have already mentioned briefly the many and varied categories of my client's viz-a-viz Section 7 of the Supply Act, and I said that, save for the intervention of the February 1985 Order-in-Council and the Supply Act itself that there was no provision to structure an employment contract to provide set off which may be outside award prescription.
On 27 March 1986 the Queensland Electricity Commission (QEC) and the seven Boards made application to the Electricity Authorities Industrial Causes Tribunal for certain orders consolidating the Electricity Industry awards, including those achieved by the 239 individuals---the forerunners of QPWA. QEC's industrial officers filed a summons for directions naming their suggested respondents and excluding QPWA. In compliance with that application, an order on summons for directions was issued on 1 April naming some 20 unions of employees as respondents. It will not surprise you to learn that QPWA was not named as a respondent. When these matters came to the attention of my clients, I contacted the Registrar of the Industrial Commission (serving as a Registrar of the Tribunal) and arranged a time for the hearing of an application to vary that order. I filed material on QPWA's behalf pointing out the assistance of the creation of the 9 awards now sought to be consolidated and briefly set out the history of QPWA in that Tribunal, from which it ought reasonably to be concluded that my clients should have notice of the proceeding in the exercise of the Tribunal's power under the IC & A Act. My application was resisted by the industrial advocates for QEC who argued that my clients had no such interest and, further, that unless I could produce individual written authorities from each of my 418 clients I should not be heard on the matter. In the event an order was made by the Registrar amending his order of 1 April by adding QPWA. I lost an argument that QPWA ought to be correctly described in the order as a union of employees. This example, which followed the exclusion of QPWA from QEC-convened conferences with TLC unions, indicates that the bastard child of the SEQEB dispute has been an embarrassment at times even to the Government's own functionaries. Happily, things have improved, and QPWA is now a regular respondent to proceedings in the Tribunal and a party to QEC-convened conferences It is sadly not yet welcome at Trades Hall where it is likely to continue as an embarrassment for many years to come.
I have come to certain conclusions from the foregoing:
I leave you with one final personal observation. If the Club system cannot be defeated under the Queensland Government, in a public essential service authority with its own set of industrial legislation and with what is now a co-operative and responsible group of unions (including what has here been described as Australia's first enterprise union), then there is no hope elsewhere. ATTACHMENT
November 1985 Amendments to the Causes Act
32. Contracting as to employment conditions. 1) Notwithstanding the provisions of any other Act an Electricity Authority may from time to time make with any of its employees or with any person seeking employment with it a contract that- i) regulates, as between the parties to the contract, the terms and conditions of employment with the Authority; or ii) varies as between the parties to the contract the provisions of an award or industrial agreement that exists in relation to a calling within the employment of the Authority. 2) A contract shall not be made under subsection (1) unless the proposed provisions thereof are first approved by the Governor-in-Council who: i) may approve such provisions generally or in relation to a particular contract, in either case for use only by the Electricity Authority that sought that approval; and ii) may so approve provisions in relation to callings within the employment of an Electricity Authority that the approved provisions differ as between different callings. Where the Governor-in-Council has approved generally provisions that may be included in a contract referred to in subsection (1), any number of such contracts may be made (by the Electricity Authority that sought the approval) containing those provisions, and no other, without any further approval being obtained. 3) A contract made under subsection (1): i) shall be lodged with the registrar of the tribunal; and ii) where the registrar is satisfied that it was made in accordance with subsection (2), shall be certified by him as complying with that subsection; and shall be of no force or effect until so certified. Upon being so certified a contract shall take effect and, subject to subsection (4), may be enforced against and by each of the parties thereto as an award made by the tribunal, notwithstanding the provisions of any other Act. 4) A contract made under subsection (1) shall not be enforceable against or by any person who is party to it unless that person freely becomes a party to the contract. 33. Contract to prevail over award etc. If any provision of a contract made under section 32(1) is inconsistent with a provision of an award or industrial agreement that exists in relation to a calling to which the contract relates the provision of the contract shall prevail as between the parties to the contract and the provision of the award or industrial agreement shall, to the extent of the inconsistency and as between the parties to the contract, cease to have force or effect. 34. Jurisdiction of tribunal to resolve disputes on contracts. 1) Every contract made under section 32(1) shall be deemed to contain a provision that any dispute concerning: the proper construction of the contract or any of its provisions; or the rights or obligations of any person there under, shall be referred to the tribunal for resolution and that the tribunal's decision shall be binding upon and shall be given effect by each party to the contract.
2) The tribunal's jurisdiction includes jurisdiction
to hear and determine all matters arising in connection
with a dispute referred to it for resolution and to
make such order thereupon as it considers proper. |
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