Industrial Relations Commission of New South Wales CITATION : Employers First, Australian Business Industrial and Australian Industry Group - applications to be approved as State Peak Councils pursuant to s 216, Re [2002] NSWIRComm 363 APPLICANTS: Employers First Australian Business Industrial Australian Industry Group PARTIES : OBJECTORS/OTHER APPEARANCES Employers First New South Wales Road Transport Association Inc Labor Council of New South Wales Transport Workers' Union of Australia, New South Wales Branch FILE NUMBER: IRC 5067, 6003, 6224 of 2002 CORAM: Wright J President; Walton J Vice-President; Tabbaa C; Ritchie C Registered organisations - Application from three major employer organisations for approval as State Peak Councils - Agreement reached - Statutory construction - Meaning of s 216 of the Industrial Relations Act 1996 - Approach to be adopted - Absence of regulations - Full Bench recommends that regulations be made - Applications granted. CATCHWORDS : Statutory construction - Registered organisations - Application from three major employer organisations for approval as State Peak Councils - Agreement reached - Meaning of s 216 of the Industrial Relations Act 1996 - Approach to be adopted - Absence of regulations - Full Bench recommends that regulations be made - Applications granted. LEGISLATION CITED : Industrial Relations Act 1996 s 216 Industrial Relations (General) Regulation 2001 HEARING DATES: 12/03/2002; 12/16/2002 EXTEMPORE JUDGMENT DATE : 12/16/2002 APPLICANTS: Employers First Mr P M Kite SC Mr T McDonald, Employers First Australian Business Industrial LEGAL REPRESENTATIVES: Mr J W Shaw QC Mr D Grozier, Australian Business Industrial Australian Industry Group Mr J W Shaw QC Mr B O'Donnell, Australian Industry Group, New South Wales Branch JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President TABBAA C RITCHIE C Monday 16 December 2002 Matter No IRC 5067 of 2002 APPLICATION BY EMPLOYERS FIRST TO BE APPROVED AS A STATE PEAK COUNCIL PURSUANT TO SECTION 216 OF THE INDUSTRIAL RELATIONS ACT 1996 Matter No IRC 6003 of 2002 APPLICATION BY AUSTRALIAN BUSINESS INDUSTRIAL TO BE APPROVED AS A STATE PEAK COUNCIL PURSUANT TO SECTION 216 OF THE INDUSTRIAL RELATIONS ACT 1996 Matter No IRC 6224 of 2002 APPLICATION BY AUSTRALIAN INDUSTRY GROUP TO BE APPROVED AS A STATE PEAK COUNCIL PURSUANT TO SECTION 216 OF THE INDUSTRIAL RELATIONS ACT 1996 DECISION OF THE COMMISSION [2002] NSWIRComm 363 1 On 3 December, 24 October and 6 November 2002 applications were filed respectively by Employers First, Australian Business Industrial and Australian Industry Group, New South Wales Branch, for approval as State Peak Councils for employers pursuant to s 216(2) of the Industrial Relations Act 1996. On 3 December 2002 the hearing of the first two of those applications, that is those by Employers First and Australian Industry Group, commenced and the hearing of the third application, that of the Australian Industry Group, was not to commence until today. 2 At the commencement of the proceedings today the Commission was advised that agreement in principle and in substance had been reached between the parties which, subject to the consideration of the Commission, would result in each of the applications being granted. That is, that Employers First, Australian Business Industrial and the Australian Industry Group, New South Wales Branch, would be approved pursuant to s 216(2) of the Industrial Relations Act as State Peak Councils for employers. 3 By consent, a document entitled "Draft Heads of Agreement" was tendered which embodied the agreement of the parties. It is in the following terms: Employers First, Australian Business Industrial (ABI) and Australian Industry Group, New South Wales Branch (AI Group) agree and will advise the Commission that: 1. The requirements of s 216(2) are that an applicant must show that: (a) it is an industrial organisation of employers registered, or taken to be registered, under Chapter 5 of the Industrial Relations Act 1996; (b) it is representative of: (i) a significant number of members; including affiliate members (ii) who are associations or organisations representing the interests of their members as employers; and (iii) the members of the member associations or organisations operate primarily in NSW. 2. That some associations or organisations in the respective lists filed by the Applicants may not fall within these tests. However, even excluding those, each of the Applicants can show a significant number of such members and submit that each of the Applicants satisfies the requirements for approval under s 216(2). 3. The Applicants envisage the three applicant bodies having the status of State Peak Councils for the foreseeable future. Accordingly, Employers First withdraws its objections to the ABI and AI Group applications. 4 It may observed that the agreement between the parties is not intended to bind the Commission but rather the parties to it. However, it should also be noted that the Full Bench on the first day of the hearing on 3 December 2002 heard detailed submissions from Mr Kite SC and Mr Shaw QC as to the legal issues encapsulated in paragraph 1 of the agreement and the Commission is therefore able to advise that it is satisfied that the terms in paragraph 1 of that document do set out the broad parameters of the crucial part of the legislative scheme which is relevant to these proceedings. It is convenient to refer here to s 216, the relevant provision of the Industrial Relations Act, which is in the following terms: 216 State peak councils - employers (1) For the purposes of this Act, an organisation approved for the time being by the Commission under this section is a State peak council for employers. More than one organisation may be so approved. (2) The Commission may approve as a State peak council for employers an organisation that is representative of a significant number of member associations or organisations of employers (being associations or organisations whose members operate primarily in New South Wales). (3) The Commission may at any time revoke any such approval for any reason it thinks fit. (4) The regulations may make provision for or with respect to approvals under this section and the application to an approved organisation of any requirements applicable to industrial organisations (with or without modifications). 5 The only minor gloss we would make is that the question of whether an employer association or organisation is a member of an organisation for the purposes of s 216(2) is a question of fact, notwithstanding that it might be described in a particular way (for example as an affiliate or as an affiliate member) in a particular applicant organisation's rules. 6 Subsequent to the agreement being announced and tendered, the parties completed the tender of all the other relevant evidence which had been filed. The Full Bench has considered all the material in evidence and the submissions made by the parties and noted that all objections earlier filed to the applications of Australian Business Industrial and the Australian Industry Group have been settled and withdrawn. We have also given consideration to the agreement between the three applicants representing as they do major employer interests in this jurisdiction. 7 The parties are to be commended on reaching an important agreement in these matters which will facilitate the representation of employers in the State of New South Wales. The Full Bench is satisfied, notwithstanding the additional observations made as to the construction of s 216, that each of the applicants satisfy the statutory requirements and each should be approved as a State Peak Council of employers pursuant to s 216(2) of the Industrial Relations Act. 8 Finally, we note that notwithstanding the terms of s 216(4), no regulation has been made and this situation has complicated these proceedings as it was not clear whether the Commission should permit objections to be made and filed to the applications for approval which had been lodged. Notwithstanding this lack of clarity, the Commission did permit such objections to be filed and dealt with and the Full Bench considers that this was an appropriate and available course in proceedings of this importance. 9 In the circumstances we raise, for the Minister's consideration, the appropriateness of regulations being made which regulate applications under s 216 and which, inter alia, specify that objections may be lodged to applications made under that section. 10 The Full Bench hereby makes orders that: 1. Employers First be approved as a State Peak Council for employers pursuant to s 216 of the Industrial Relations Act 1996. 2. Australian Business Industrial be approved as a State Peak Council for employers pursuant to s 216 of the Industrial Relations Act 1996. 3. Australian Industry Group, New South Wales Branch be approved as a State Peak Council for employers pursuant to s 216 of the Industrial Relations Act 1996. 4. The Industrial Registrar is directed to issue an appropriate certificate authenticating the orders made, such certificate bearing today's date. 5. These orders shall operate on and from 16 December 2002. ____________________________________ 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.