IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY INDUSTRIAL DIVISION JUDGE MAKING ORDERS: ORDERS DATE OF ORDERS: WHERE MADE: No. 43 of 1982 BETWEEN : AUSTRALIAN COLLIERIES' STAFF ASSOCIATION Applicant AND: THIESS DAMPIER MITSUI COAL PTY. LIMITED Respondent AND: UTAH DEVELOPMENT COMPANY and M. I. M. HOLDINGS LIMITED and C. S. R. LIMITED Interveners ST. JOHN, J. 22 MARCH 1983 AT BRISBANE 2+ -/2 eon" THE COURT ORDERS THAT: The interlocutory application of the Federated Clerks' Union of Australia to intervene in the proceedings is granted. The substantive application is stood over generally with liberty to any party or intervener who remains an intervener to restore on seven (7) days' notice. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY INDUSTRIAL DIVISION No. 43 of 1982 BETWEEN: AUSTRALIAN COLLIERIES' STAFF ASSOCIATION Applicant AND: THIESS DAMPIER MITSUI COAL PTY. LIMITED Respondent AND: UTAH DEVELOPMENT COMPANY and M. I. M. HOLDINGS LIMITED and Cc. S. R. LIMITED Interveners REASONS FOR JUDGMENT ST. JOHN, J. AT SYDNEY WEDNESDAY 27 APRIL 1983 oe -/2 a By an application filed 17th November, 1982, the applicant herein sought, pursuant to S. 21 of the Federal Court of Australia Act 1976, S. 36 of the Coal Industry Act 1946 and the provisions of the Conciliation and Arbitration Act 1904 ("the Act"), a declaration as to the right of enforcement against the respondent, awards made by the Coal Industry Tribunal made pursuant to S. 32(2) of the Coal Industry Act 1946 and, in particular, to declare that the award was applicable as between six named employees of the respondent in their Brisbane office, and the respondent. In short, the application seeks a declaration that the employment of those employees is governed by the award of the abovementioned Coal Industry Tribunal. Although S. 21 of the Federal Court of Australia Act is referred to, in addition to the Act, as giving the court jurisdiction, the application is, in essence, for the interpretation of an award, a power specifically given this court by S. 110 of the Act. Previously, applications for leave to intervene were made and argued pursuant to S. 106(2) of the Act, and no submissions were made that such section was not 22/3 wee ee applicable 1n the circumstances. The applicants to intervene were corporations who employed persons in the same capacity as the six named employees referred to above, and part of their business was in coal mining, either by themselves or by subsidiary companies. I granted leave to those companies to intervene, as I considered it desirable pursuant to S. 106(2) of the Act and, on 28th February, 1983, Mr. Lamprati appeared before me and foreshadowed an application by his client, the Federated Clerks' Union of Australia ("the Clerks' Union") to intervene. That application was heard on 22nd March, 1983 in Brisbane and, at the conclusion of the hearing, I granted leave to that organisation to intervene and indicated that I would later give reasons, as Mr. Wybrow, who appeared for the applicant in all applications, indicated that his client had appealed against the previous grants of intervention and proposed, also, to appeal in respect of my order allowing the Clerks' Union to intervene. In respect of the application by the Clerks' Union, affidavits were read and the relevant content of those affidavits was to the effect that the elegibility clause for membership of that union was defined by reference to the function of a clerk and to the effect that clerks, in oo /4 whatever industry they were employed, performed the same or similar services as were being performed by the six named employees referred to. In addition, annexed to one affidavit, that of Richard John Wasson, the Assistant Federal Secretary of the Clerks' Union, was a photographic copy of a newspaper report of a statement by the Federal Secretary of the applicant organisation to the effect that the appli- cation herein was being used as a test case, and that the result of the application would affect staff in all major coal mining company head offices in capital cities. The newspaper article went on as follows:- "....Mrc. Gaussen (the Federal Secretary) said: 'In February 1980 we filed a claim on one of the companies for all people to receive benefits of the award and enrolment into the association. 'The Coal Industry Tribunal ruled that the staff were involved in the mining industry but did not make a favorable decision because they were more than 600 km from a mine site,' W Before these affidavits were read, I specifically asked Mr. Wybrow whether he objected to any of their contents as inadmissible, and he replied in the negative. The affidavit of Mr. Wasson was dated llth March, 1983, and no evidence in reply to it was adduced. ---/5 The definition of eligibility in the Clerks' Union rules, 1s a definition based upon the activity of the particular employee, without regard to the industry in which he or she is working. On the other hand, the definition of elagibility for membership of the applicant organisation is, in part, a definition by reference to the industry in which he or she is employed and, in particular, reference is made to employment in firms or companies whose principal business is that of coal mining. The meaning of the adjective "principal" has not been explored in these proceedings, but it can be readily assumed that the criterion to determine what is a principal business where a firm or company carries on a number of businesses is not easily determined. Such criteria as the capital assets employed, the numbers in the work force, the nett profit, the gross profit, or the industry's importance from a national or other point of view could be considered in determining whether it is the principal business of the firm or company. I mention this merely to illustrate that eligibility for Membership in the applicant organisation is not as clear as Mr. Wybrow would have me accept when he argued to the effect that such clause was restrictive in relation to membership of the organisation he represented. 2/6 -c As to the principles to be applied in determining whether intervention should be allowed, no authorities which were relevant to the statutory power given to the court in S. 106(2) of the Act which were cited were of any great assistance. In Owens and Others v. Australian Building Construction Employees and Builders Labourers Federation (1978) 19 A.L.R. 569, a Full Court of this court rejected an application by the Master Builders Association of New South Wales to intervene in proceedings by certain individuals, the object of which proceedings was to have them declared as eligible for membership of the respon- dent organisation pursuant to S. 144 of the Act. R. v. Evatt; Ex parte Master Builders Association of New South Wales (1974) 132 C.L.R. 150 was cited and the relevant passage quoted at p. 575 of Owens' case reproduced, but it is clear that the High Court gave no real guidance as to the principles to be applied. The Full Court in Owens' case was also referred to Corporate Affairs Commission v. Bradley; Commonweaith of Australia (Intervener) (1974) 1 N.S.W.L.R. 391 where, in the leading judgment of Hutley, d.A., the New South Wales Court of Appeal had held that there was no common law power to allow intervention by the Commonwealth and distinguished the constitutional 22/7 practice of the High Court to allow intervention , characterising it as being "based on the concept of legislative trespass and the right of the Attorney- General of a State in cases of legislative trespass by the Commonwealth to protect its citizens from such trespass". It appears to me that in determining questions of the right to intervene, consideration should be given to the objects of the Act which are set out in S. 2 in general terms and that it is permissible to take judicial notice that demarcation disputes and poaching by one organisation of another's members on occasions lead to industrial action of an extremely troublesome kind, where employers are powerless and where the objects of the Act are defeated. In my view, the Clerks' Union has a clear interest in the outcome of the application in that it may lose members to the applicant organisation and this view is reinforced by Mr. Wybrow's submissions to the court to the effect that the six named employees would be far better off financially and as to entitlement to long service leave if the award was enforced in their favour than they would be if they performed the same functions and remained members of the Clerks' Union. The result of allowing -.-/8 the four parties to intervene is that employees whose work functions possibly entitle them to member- ship of either union, and the two organisations, the elagibility for membership provisions of which make it possible for the same work to be carried out in different industries with resulting different rates of pay, will be able to protect their respective interests in the determination of the issue before the court. Mr. Wybrow, for the applicant organisation, has stressed that the hearing may well be lengthened as a result of intervention and the restrictive nature of the costs provisions in S. 197A of the Act militate against intervention. The proceedings will no doubt be lengthened to some extent, but I consider this is a factor of minimal importance, and not such as to render it undesirable that the interventions take place. In submissions made to me, for example at p. 13 of the transcript where Mr. Wybrow stated that his organisation regarded the application as a test case and, at p. 17 of the transcript where he said that what was wanted was a test case in order to determine whether it was worthwhile pressing against "the others", there is a clear statement of the purposes of the application. For the above reasons, I granted leave to the Clerks' Union to intervene. «2/9 It was not argued by the applicant that the power to give leave to intervene should be determined by consideration only of the Federal Court of Australia Act. Had it been so argued, I would have inclined to the view that, as the application was, in essence, for the interpretation of the award, the provisions of the Act investing the court with that power were applicable. Further, it would appear that S. 21 of the Federal Court of Australia Act can be invoked only by those whose rights are sought to be declared, in this case, the six named employees; the argument would, therefore, have been self-defeating, there being no locus standi in the applicant organisation. 1g PACES are a true copy of the ement herein of his Honour ce $f. Foun ° yy s a Dated: 27.4.83 Grok