Industrial Relations Commission of New South Wales CITATION : Construction, Foresty, Mining and Energy Union (New South Wales Branch) and The Australian Workers' Union, New South Wales [2004] NSWIRComm 146 APPELLANT Construction, Forestry, Mining and Energy Union (New South Wales Branch) PARTIES : RESPONDENTS The Australian Workers' Union, New South Wales Manildra Energy Australia Pty Limited FILE NUMBER: IRC 47 of 2004 CORAM: Wright J President; Boland J; Macdonald C CATCHWORDS : Registered organisations - Demarcation - Appeal from orders made pursuant to s 294 of the Industrial Relations Act - Consent reached by parties after initial hearing - Discretionary nature of leave to appeal - Orders made by consent. LEGISLATION CITED : Industrial Relations Act 1996 s 188 s 294 s 295 CASES CITED : The Australian Workers Union, New South Wales v Construction, Mining, and Energy Union, New South Wales [2003] NSWIRComm 415 HEARING DATES: 04/20/2004; 05/21/2004 EXTEMPORE JUDGMENT DATE : 05/21/2004 APPELLANT Mr I C Latham of counsel Construction, Forestry, Mining and Energy Union (New South Wales Branch) (Ms Rita Mallia) RESPONDENTS Mr A A Hatcher of counsel The Australian Workers' Union, New South Wales LEGAL REPRESENTATIVES: Solicitors: Maurice May & Co (Ms R May) Mr J V Murphy of counsel Manildra Energy Australia Pty Limited Solicitors: Australian Business Lawyers (Mr G Jervis) JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WRIGHT J, President BOLAND J MACDONALD C Friday 21 May 2004 Matter No IRC 47 OF 2004 CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH) AND THE AUSTRALIAN WORKERS' UNION, NEW SOUTH WALES Application by the Construction, Forestry, Mining and Energy Union (New South Wales Branch) for leave to appeal and appeal against a decision of Deputy President Grayson given on 18 December 2003 in Matter No IRC 50 of 2003 DECISION OF THE COMMISSION Extempore [2004] NSWIRComm 146 1 An application for leave to appeal and an appeal were lodged in this matter by the Construction, Forestry, Mining and Energy Union (New South Wales Branch) (the CFMEU) against the decision of Grayson DP of 18 December 2003 in Matter No IRC 50 of 2003 in which his Honour made certain orders in proceedings between the appellant and the Australian Workers' Union, New South Wales (the AWU). The proceedings before Grayson DP involved an application for demarcation orders pursuant to s 294 of the Industrial Relations Act 1996. His Honour's decision is entitled The Australian Workers Union, New South Wales v Construction, Mining, and Energy Union, New South Wales [2003] NSWIRComm 415. 2 In accordance with the usual directions the parties filed very helpful submissions and the supplementary oral submissions of the parties were made by their respective counsel: Mr Latham of counsel for the appellant, Mr Hatcher of counsel for the AWU, Mr Murphy of counsel for Manildra Energy Australia Pty Limited. The submissions were heard on 31 March 2004 and at the conclusion of the hearing on that day the matter, not having concluded, was stood over for further short hearing today. However, after a short adjournment today the parties advised the Full Bench that they had reached agreement, the details of which are set out in the transcript taken earlier today. The agreement involves the making of orders by consent which will involve the grant of leave to appeal and the upholding of the appeal in part with certain revisions of the orders made by his Honour which are set out in paragraph [75] of the decision earlier referred to. 3 The Full Bench considers that the issue of leave to appeal under s 188 of the Act is a matter in respect of which the Commission is required to exercise its own discretion irrespective of any consent of the parties but in respect of which any consent reached by parties (especially those with the level of industrial experience of those appearing before us in the present proceedings) is a matter of great materiality and weight. In the present case, having regard to all of its circumstances, we consider that the agreement of the parties should be accepted, that leave to appeal should be granted and effect given to the agreement reached. We therefore make the following orders by consent: (1) leave to appeal granted; (2) the appeal is upheld in part; (3) the orders made by Grayson DP at paragraph [75] of the decision of 18 December 2003 are varied to provide as follows: 1. The Australian Workers Union, New South Wales is to have the right to the exclusion of the Construction, Forestry, Mining and Energy Union (New South Wales Branch) to represent under this Act the industrial interests of Manildra Energy Australia Pty Limited employees at its Bombaderry site who are eligible for membership of the Australian Workers Union, New South Wales. 2. The Construction, Forestry, Mining and Energy Union (New South Wales Branch) is not to have the right to represent under the Act the industrial interest of Manildra Energy Australia Pty Limited employees at Bombaderry. 3. The above orders shall take effect from the date of filing of the application in these proceedings. 4. The above orders shall not apply with respect to Boiler Attendants employed by Manildra Energy Australia Pty Limited who were, as at the date of the making of these orders, members of the Construction, Forestry, Mining and Energy Union (New South Wales Branch). (4) the parties are directed, within 14 days of today, to bring in formal orders setting out the replacement orders for those set out in paragraph [75] of the decision of Grayson DP; (5) the matter, that is Matter No IRC 50 of 2003, is remitted to Grayson DP to deal with the proceedings further in respect of the alteration of any rule required under s 295 (2) of the Industrial Relations Act. ___________________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.