Australian Education Union v Australian Principals Federation

Australian Education Union v Australian Principals Federation - [2016] NSWIRComm 1041 - NSWIRComm 2016 case summary — Zoe

Judgment (27 paragraphs)

[1]

Ms A Bell, Mr N Keats, W G McNally Jones Staff, Solicitors (Respondent) File Number(s): 2016/29874

[2]

DECISION

New South Wales Non-Emergency Patient Transport (NEPT) was, until February 2016, provided by two fleets - the NSW Ambulance NEPT (also known as the Green Fleet) and NEPT fleets located and managed by Local Health Districts (the LHDs) of Illawarra Shoalhaven, Nepean Blue Mountains, Sydney, South Western Sydney, Western Sydney, Northern Sydney, Central Coast and Hunter part of Hunter New England. Patient transport is also provided by drivers who are employed and based in the LHDs.
PTOs employed by NSWA were eligible for membership of both the Australian Paramedics Association (NSW) (the APA) and the Health Services Union NSW (the HSU).
On or about 19 October 2015, the NSW Ministry of Health (the MoH) announced that a decision had been made, as part of the reform of the NEPT, to form a single fleet of PTOs. In other words, PTOs employed by NSW Ambulance (NSWA) would be transferred to, and managed by, a new employer, HealthShare NSW (HealthShare).
Shortly after that announcement, both unions began extensive consultation with HealthShare and the MoH with respect to the terms and conditions of employment of the employees to be transferred to HealthShare.
The eligibility rule of the APA restricts that organisation to the enrolment to membership of persons employed as Paramedics, PTOs, or in a paramedic support position by NSWA.
The APA, on 22 December 2015, filed an application, pursuant to section 245 of the Industrial Relations Act 1996 (the Act) seeking the consent of the Industrial Registrar to alter its eligibility for membership rule. The effect of the proposed alteration is to add a new category of employees to those eligible for membership of the APA by the addition of a new Rule 3 (d) as follows: 3 (d) Any person previously employed by Ambulance Service of New South Wales as a patient transport officer who is transferred to another department within the Ministry of Health.
The object of the rule change, it was contended, is to enable the APA to continue to both represent its existing PTO membership and to enrol, and to industrially represent, PTOs upon the transfer occurring as currently its rules are limited to employees within NSWA.
A Notice of Objection to the rule change was lodged in the Industrial Registry on 7 January 2015 by the HSU. The objection is made on the following bases: 1. Section 245 (3) of chapter 5, Part 4, Div 2 of the Act. There is another industrial organisation, namely the HSU, to which the persons who would be eligible for membership because of the alteration, might conveniently belong; and 2. Cessation of the provisions outlined in s 245 (3A) and Schedule 5.
The grounds, facts and circumstances set out in the Annexure to the Notice basically appears to be that if the proposed rule alteration is assented to, it would result in PTOs working within the MoH being able to elect to be members of either the APA or the HSU.
The matter appeared to be a continuation of the situation that existed and was the subject of the judgment of his honour, Haylen J, in Re Application by Emergency Medical Services Protection Association (NSW) [2013] NSWIRComm 35; (2013) 233 IR 400 (the Re EMSPA Case) - the initial application for registration by the applicant union, then titled "Emergency Medical Services Protection Association (NSW)" (the EMSPA).
The Industrial Organisations Officer with the Industrial Registry wrote to the Solicitors for the HSU on 8 January 2016 referring to the above decision of Haylen, J. The HSU was advised that the Acting Registrar had determined that there was nothing before him to satisfy him that it would be appropriate to depart from the consideration and conclusion of His Honour in the earlier matter. The HSU was invited to make further submissions in support of its objection. The HSU submitted that the foreshadowed intention to determine the matter on the basis of the said decision would involve error.
The transfer of the PTOs commenced in January 2016 with the Green Fleet transferring on 15 February 2016. Mr Hayes gave evidence that approximately 211 staff working within the "Green Fleet" and approximately 248 staff from the LHDs transferred employment in February 2016.
The APA filed a Notice of Motion on 8 February 2016 seeking an order that the matter be expedited for the following grounds and reasons: 1. The employees the subject of this application will be forcibly transferred from NSWA to HealthShare on 15 February 2016. 2. A number of terms and conditions of employment of the employees the subject of this application [the outstanding issues] have not yet been finalised between the APA and HealthShare. 3. There were many issues regarding the transfer and conditions of employment which remained unresolved. HealthShare had advised the APA at a meeting held on 20 January 2016 that it was not willing to consult with them over the outstanding issues. 4. It is not in the public interest that a group of employees are denied their right to be represented on the outstanding issues by the state organisation of which they are members simply because of a restructure within the same employer. 5. It is in the public interest that this issue be resolved by the Commission as a matter of urgency.
The matter was listed for hearing of the Notice of Motion on 18 February 2016. Directions were issued and the matter was set down for hearing on 31 May and 1 June 2016 at which time evidence was received from 14 APA witnesses and six HSU witnesses.
During the proceedings on 1 June 2016, the APA filed a draft amendment to the rule change it was seeking. The effect of the amendment is to seek coverage by the APA of the following persons: Any person who was 1. previously employed by the Ambulance Service of New South Wales as a patient transport officer; 2. transferred to another Department within the Ministry of Health on 15 February 2016; and 3. is employed as a patient transport officer.
The APA confirmed that it was not its intention to enrol PTOs who have not transferred from NSWA.

[3]

AGREED FACTS

The HSU has 32,725 members of whom 283 are PTOs. Of those 283 PTOs, 79 were ex-employees of NSWA.
The APA has 1,736 members of whom 53 are PTOs.

[4]

The APA Evidence

Mr Gary Wilson, Secretary, provided the following evidence on behalf of the APA:

[5]

Constitutional Coverage and History

EMPSA was founded in or around February 2009 by a number of NSWA employees. The organisation became registered as an industrial organisation in or around June 2013 following legal proceedings before the Industrial Relations Commission. The organisation later changed its name to the APA.
Pre and post registration, many PTOs employed by NSWA enrolled as members and relied on the organisation to regularly assist them with workplace and industrial issues.
The APA's eligibility rules allow any person who is employed by NSWA as a Paramedic, PTO or in a paramedic support position to be eligible for ordinary membership.
The APA has, since post-registration, been actively involved in various industrial and workplace issues affecting its PTO members, including the transition to HealthShare:

Pre and post registration in 2013, the APA has consulted extensively with NSWA over the plaguing issue of roster reform.
More recently, the APA has participated in a roster reform/review committee. Its members have participated in a number of trials. The APA has sought the assistance of the Commission in holding NSWA to agreed timeframes thereby ensuring that the roster reform matter was progressing.
The APA has been successful in establishing work health and safety committees with work health and safety representatives for PTO working groups state-wide.
The APA commenced, in or around May 2014, consultations with NSWA to secure a "meal away from station" allowance for PTOs similar to that received by paramedics.
During the period August - December 2014, the APA was involved in discussions with NSWA regarding the issue of crib breaks. It was successful in sustaining the practice of returning PTOs to their stations for their break.
In November 2014, the APA and its delegates initiated consultation regarding the transport of patients with multi-resistant organisms (MRO) and the change in protocol by NSWA with respect to same. The APA was able to ensure that the correct policy was put in place.
Since its registration, the APA has not discriminated between its PTO and Paramedic members and ensured their representation on the union's award review committee.

[6]

Member Services

Pre-registration, EMSPA assisted its members, including PTOs, with a number of issues, including bullying and harassment matters, misconduct investigation matters, workers' compensation matters and generally making its members aware of their workplace rights and conditions pursuant to the Operational Ambulance Officers (State) Award.
The APA's sound financial position has allowed it to assist members both industrially and legally. It has a team of lawyers and barristers who are regularly engaged, and two industrial officers (who are also qualified solicitors) to assist members with regards to workers' compensation, death and disability, wage conditions, unfair dismissals, public sector disciplinary appeals, industrial disputes in the Commission, traffic offenses, motor vehicle accidents, coronial inquests, paramedic assaults, work and safety issues and victims compensation.
Regular communications are maintained with APA members via updates forwarded by emails, an official website which allows ready access to relevant information and quarterly member newsletters.

[7]

Active Membership

The APA continued to grow post registration and now boasts a strong membership base within NSWA of 1750 members of which over 53 are PTOs.

[8]

Representative Structure

The APA is run by employees for employees and is managed by a 7-member Executive Committee (one of whom has since retired). They are all employees of NSWA and were elected from the membership in a ballot conducted by the Australian Electoral Commission. The Executive, therefore, has a sound practical knowledge of the issues directly affecting APA members and are directly affected by the outcomes achieved by the organisation.
In addition, the APA has 50 Executive Liaison Officers and Liaison Officers (employees of NSWA) across the State albeit not in accordance with the metropolitan/regional structure and the Zone/Sector structure implemented by NSWA.
The 50 liaison staff is responsible for assisting APA members in their local area and dealing with industrial disputes and issues at their local level. They are also responsible for managing the bigger issues that are likely to impact most employees in that metropolitan/regional area. Unresolved issues are escalated to the APA's industrial team.
Three of those Liaison Officers are PTOs and they are responsible for, and heavily involved in, assisting the PTO members with related issues/disputes affecting members at a local level, including the transfer to HealthShare. They are very dedicated and have been an asset to the organisation.
The APA has an industrial team comprising two full-time Industrial Officers and a full-time Industrial Organiser. They take care of the membership needs and deal with various industrial issues and disputes. The team regularly consults with NSWA and enter appearances before the Commission.
In addition, the APA employs a Financial Manager, Information Technology Manager and a Peer Support Officer who are accessible to render assistance to the membership.
The APA has had to move into larger premises with a dedicated server as a result of its growing membership and staff. It has purchased two vehicles for the use of staff and delegates on a needs basis.
The APA is in a sound financial position which has continued to improve while it has maintained its membership fees at $10 per week. It has no loans to service.

[9]

Representation of PTOs

The APA attended a meeting on 19 October 2015 with the MoH regarding the NEPT reform. Its industrial team and Executive immediately advised its PTO members via a member update of the same date and provided reassurances to them. It then obtained advice from its legal team about the way forward.
The APA intervened in Commission proceedings on 27 October 2015 with respect to industrial bans initiated by the HSU in relation to the reform and then reported to its members on the outcome.
APA representatives from the industrial team and PTO delegates participated in the first consultative meeting with NSW Health and representatives from HealthShare on 2 November 2015 during which information was sought regarding the transfer of conditions across to the new entity. It formally sought negotiations on an enterprise bargaining agreement on 3 November 2015.
Consultation continued over a period of time with the APA providing constant feedback to its members on their progress and on settlement offers, including at a mass meeting on 1 December 2015. Whilst the proposal for an enterprise bargaining agreement was rejected, the APA was advised that NSW Health intended on making a determination pursuant to section 116A (1) of the Health Services Act 1997 once negotiations had been completed.
NSW Health confirmed that, despite not reaching agreement and despite there being unresolved matters, it intended to move forward with the transition on 15 February 2016. The APA raised strong objections to the move pointing out that it would not have coverage to represent its members post transition. NSW Health advised that it intended to set up a working group to discuss and resolve all outstanding issues but would not be willing to continue to consult with the APA in the absence of constitutional coverage.
The APA filed the current application for an amendment to its eligibility rules on 22 December 2015. It also lodged a dispute notification on 20 January 2016 seeking to delay the transition date. Whilst no recommendation was made in relation to the transition date, Newall C recommended that the parties fast track their negotiations on the outstanding matters.
The APA was successful in obtaining a recommendation from Newall C at a further listing on 12 February 2016 regarding maintenance of the status quo and the establishment of working committees on which the APA was able to be represented by a member in an unofficial capacity.

[10]

The HSU Evidence

Mr Gerard Hayes, Secretary, gave evidence in support of the contention that a finding ought to be made that the HSU is an organisation to which PTOs working within the MoH could more conveniently belong for the purposes of s 245 (3) of the Act:

[11]

Constitutional Coverage and History

The HSU was first registered as an industrial organisation under the Industrial Arbitration Act 1940 on 12 October 1911. Titled, "Hospital and Asylum Employees' Union of New South Wales", it had coverage of all non-nursing professional positions in public and private health services, aged care facilities, universities and the ambulance service.
The HSU, for many years, has had, and continues to have, pursuant to rule 5 (A) of its Rules, the constitutional capacity to represent PTOs working within the MoH. The said rule relevantly provides: 5. CONSTITUTION The Union shall consist of an unlimited number of persons: Employed in or in connection with: (i) Area Health Services, Hospitals, Mental Hospitals, Hospital Dispensaries, Nursing Homes, Sanatoriums, Rest Homes; ….. (iv) Industrial and other similar homes, special schools, Public Charitable Institutions, Ambulance Work (including First-Aid work), Reception Houses.
The HSU has a 100 year and continuing history of representing the industrial interests of employees working across all parts of the public health system. It has substantial membership across all parts of the health sector.
The HSU was the sole union representing all PTOs both within the Green Fleet and the LHDs until 2013. From June 2013 up to 15 February 2016, the APA shared union coverage with the HSU for PTOs in the Green Fleet. The HSU maintained sole coverage of all other PTOs. As from 15 February 2016, the HSU resumed sole union coverage of PTOs.

[12]

Active Membership

Together with its federal counterpart organisation, the HSU nationally has over 70,000 members with NSW and the ACT accounting for some 32,000 members working in all non-nursing professional positions in public and private health services and aged care facilities.
The HSU has substantial membership among PTOs. The evidence demonstrates that it has 335 PTO members of which 90 were previously employed within the Green Fleet and 245 in the LHDs.
The HSU has substantial membership among the group of employees who would become eligible to join the APA as a result of a rule change.
The HSU has greater membership of PTOs than the APA. It is not the case that the group of employees to which the rule change relates have not or will not become members of the HSU.

[13]

Representative Structures

An Ambulance Division was created after the commencement of the new leadership of the HSU to specifically provide representation to members within the NSWA. PTO members within the Green Fleet were allocated to that Division.
In addition to general industrial and other staff (including an industrial organiser), the Ambulance Division has a Manager specifically allocated to it responsible for serving the members in that Division.
The Ambulance Division has created sub-branches at the workplace level within the hospital they are based in to provide opportunities for members to participate in the union. Those sub-branches are serviced and supported by HSU Organisers. A PTO Delegates Committee has also been created to enhance decision making opportunities for PTOs. The delegates on that Committee take direction from the HSU rank and file members on union matters.
Following the transfer of the PTOs to HealthShare, the HSU commenced a process of consultation with members and delegates in the pre-existing LHDs and Green Fleet workforces with a view to forming a HealthShare-wide PTO Delegates Committee.
The significance of that class of membership within the HSU is demonstrated by the fact that the President and an elected Councillor of the HSU are drawn from among the PTOs.
The HSU has a network of employed organisers all over the State to provide front-line industrial assistance and support to its members in dealing with management, supporting members with disciplinary issues, writing submissions to the agencies and representing them at local disputes committees.
The HSU has a long history of active representation of PTOs as, over the years, NSW Health has been through many restructures which have involved the creation, expansion and deletion of Area Health Services and creation of LHDs. Those changes have directly impacted on its PTO members and the HSU has actively represented its members' interests in protecting their employment through those changes.

[14]

Representation of PTOs

The HSU has been actively involved in providing representation to PTOs working within NSWA across a wide range of collective and individual industrial issues. A range of those issues were identified in the statement of Mr Hayes.
It has promoted the interests of its members in relation to issues such as job security, introduction of new technology, rostering and job allocation through the Parramatta HUB (the control centre that dispatches PTO vehicles) and guaranteed the taking of meal breaks.
The HSU noted that the Secretary of the APA, Mr Wilson, listed a number of matters in his statement relating to a contention that his union provided assistance to PTOs. In each case, Mr Wilson accepted, in cross-examination, that he was aware that the HSU had been actively involved in promoting the interests of employees in relation to the very same matters.
The HSU has the resources and experience to provide support to individual members in relation to unfair dismissals, promotion/disciplinary appeals, underpayment issues and, in the event of civil or disciplinary proceedings, is able to provide members with professional legal support through its Solicitors.

[15]

Representation in transfer to HealthShare

In December 2012, the Minister for Health announced the establishment of the NEPT as a separate service from the emergency service provided by NSWA which would involve a centralised booking system for all NEPT. The reform program involved the trial of new technology known as Optima net and the establishment of a common NEPT booking, scheduling and dispatch "Hub" initially planned for Newcastle.
In April 2013, the HSU raised concerns directly with the Minister regarding the lack of information and consultation in that regard. Work bans placed by HSU members in Newcastle were lifted following assistance from the Commission in obtaining a commitment for genuine consultation to occur.
The HSU took an active role in providing representation to the NEPT reform process from that time, including establishing, in June 2013, a state-wide NEPT Union Specific Consultative Committee (which also comprised representatives from the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union and the NSW Nurses and Midwives' Association). The HSU is represented on that Committee by the President as well as the Managers of the Ambulance Division and Public Health Division. A summary was set out in Mr Hayes' statement of the representations made on behalf of the PTO members as a result of that Committee's endeavours.
There were still some outstanding matters waiting to be resolved when the MoH, on 19 October 2015, announced that the transition was to commence. The HSU immediately issued a detailed newsletter to all PTO members setting out the issues and informing members that the HSU would support them in the proposed transfer. HSU PTOs working within the Green Fleet resolved to take industrial action to defend their conditions. Intervention from the Commission resulted in a process of consultation being agreed between the HSU, HealthShare and the MoH.
The HSU was subsequently successful in breaking the impasse by negotiating a position whereby award conditions were grand-parented and outstanding non-award conditions were maintained pending discussions and, failing agreement, a determination being sought from the Commission. Throughout that process, the HSU held meetings with its delegates and co-ordinated the membership to ensure the membership was consulted in the process.

[16]

Industrial Instruments and Regulation

The conditions of employment of the PTOs who transferred from the Green Fleet are prescribed by the Health Employees (State) Award, the Health Employees Conditions of Employment (State) Award (which was amended following the determination made under the Health Services Act as a result of the HSU negotiations described above) and the Health Industry Status of Employment (State) Award. The HSU is the only union party to those awards and has the knowledge and history to properly represent employees, including PTOs, in relation to the conditions under those awards.
Upon the transfer of the NEPT services to HealthShare, the MoH, on 1 February 2016, issued Determination No 3 of 2016 prescribing the classifications, wages and conditions of employment for PTOs and Drivers employed in the NEPT services in HealthShare. The Determination prescribed that the wages and conditions are to be covered by the Health Employees' (State) Award and the Health Employees' Conditions of Employment (State) Award. It also prescribed a number of grand-parented and enhanced conditions which were negotiated with the MoH by the HSU.

[17]

Institutional Context

As a result of the transfer to HealthShare, PTOs will be managed together with staff engaged in catering, cleaning, administration and other tasks within the wider health system. The HSU has broad membership across a wide array of occupational areas throughout the public health system and has experience in representing its members in negotiations with the MoH and other agencies within the health system.
PTOs from the former Green Fleet and LHDs are now part of a single patient transport workforce. It is therefore convenient for that group of employees to be members of the union which has coverage of the whole workforce engaged in non-emergency patient transport.

[18]

Member Services

PTO members of the HSU have available to them a wide array of member services and benefits, including access to professional indemnity insurance, public liability insurance, accident journey insurance (including income support), free on-line continuing professional development, bereavement benefits, a discount shopping service (including health and general insurance) known as "union shopper', educational incentive scholarships, free legal advice (including on non-legal matters), assistance with preparation of wills and rental cabins at Jervis Bay.
The HSU runs a telephone assistance line for members to advise on all conditions of employment and provide representation, both over the phone and in person, when members need the support of a union representative.

[19]

Industrial Representation and Advocacy

The HSU employs 93 officers to provide legal and/or industrial advice and representation, communicate with members, recruit members and build workplace structures, draft enterprise agreements, undertake safety inspections, identify and encourage local workplace leaders and encourage workplace activism.
It also employs a specialist Work Health and Safety Officer and a specialist Welfare/Training Officer.
The HSU has trained delegates and sub-branches at the workplace level. It convenes an annual conference of approximately 300 delegates to discuss common issues impacting on union members. Recommendations from the conference inform the development of the Union's strategic planning.
The HSU has demonstrated experience over many decades of participating in major award cases that have successfully achieved significant and lasting improvements in the wages and terms and conditions of employment and standing of its members.
The HSU is currently involved in major industrial cases and disputes on behalf of its members, including proceedings relating to critical care paramedics engaged in aeromedical services within NSWA and allied health assistants engaged by LHDs across the State.

[20]

APA Submissions The submissions of the APA may be summarised as follows:

The Commission has, traditionally, supported the century old guiding principle that it is more important that employees be represented by a union in the industrial system than to have no representation at all.
Mr Wilson gave evidence that the APA had significant resources which it used to fund a large variety of membership services both in terms of ambulance service and the PTO area of the said service. There is no debate about the fact that the APA had raised issues in relation to the PTOs until the MoH indicated that it would cease consultation with the APA in the absence of constitutional coverage of those members.
Mr Flint gave evidence of the positive competition between the APA and the HSU which worked to the benefit of the PTOs in that it achieved greater benefits through the efforts of both organisations. The cross-examination of Mr Flint was unsuccessful in painting a picture of significant antagonism between both those unions.
A common theme throughout the evidence of the APA witnesses was:

their satisfaction with the support provided to them by the APA;
their disillusionment with the HSU;
their preference for the democratic nature of the APA and its considerable activity in relation to PTOs;
the genuine desire to belong to the APA, the union of their choice, which was unshaken in cross-examination; and
the fact that they would remain unrepresented if the APA was no longer able to represent them.

There has been a very legitimate reason for the group of people represented by the APA to distrust the HSU.
Despite Mr Hayes' attempts to paint a picture of some terrible future demarcation dispute relating to coverage of PTOs, there was very little evidence of any conflict between both unions and no significant dispute between both unions that would lead the MoH to be concerned.
The APA accepted that the concerns raised by the HSU in relation to the rule change were legitimate. The amended draft rule sought to address those concerns by clarifying that it only applied to people who were previously employed as PTOs and who were transferred to HealthShare on 15 February. The APA acknowledged that once a decision has been made that a rule change of this nature should be made, then it has a very broad discretion to make the change in whatever way it sees fit.

[21]

HSU Submissions The submissions of the HSU may be summarised as follows:

The Registrar must not consent to the alteration of the rules of the APA unless satisfied of the matters set out in s 245 (2).
In addition, s 245 (3) provides that the Registrar must not consent to an alteration of the rules of the APA relating to eligibility for membership if, in relation to persons who would be eligible for membership because of the alteration, there is another industrial organisation to which those employees might "conveniently belong".

[22]

Sub-sections 245 (3A) - (3D)

Sub-sections 245 (3A) - (3D) of the Act set out an alternative standard to the traditional "conveniently belong" test imposed by s 245 (3) in that it permits the Registrar to consent to an alteration to the eligibility rules of an organisation to which Schedule 5 applies, by accepting an undertaking to avoid demarcation disputes. Schedule 5 includes reference to EMSPA.
Sub-sections 245 (3A) - (3D) relate to applications for consent made before, or within 12 months after, the date of assent to the Industrial Relations Amendment (Industrial Representation) Act 2012. The said Act received assent on 24 September 2012. As the application was filed on 22 December 2015, the provisions of ss 245 (3A) - (3D) do not apply. The application needs to be determined, therefore, in accordance with the requirements of s 245 (3).

[23]

The Relevance of the Haylen J Decisions

Haylen J in the AWU Rules Alteration Case examined a number of authorities before concluding as follows: [27] Adopting that approach to the present matter, the Commission is to keep in mind the general policy objectives of avoiding a multiplicity of unions in the one industrial field but in the context that the constitutional coverage of an objection, alone, will not be sufficient to sustain the objection and that the Commission is to consider the convenience of the employees as proposed members of the applicant. The exercise of the discretion nevertheless requires each case to be considered on its own particular merits and how the implementation of the decision would be practical in its operation.
Sections 218 (1)(o) and (1A) were enacted by the Industrial Representation Act 2012 together with s 245 (3A) - (3D).
In Re EMSPA, Haylen J considered an application by EMSPA for registration as a State organisation pursuant to s 218 (1)(o), (1A) and (1B) of the Act.
In considering the effects of s 218 (a) and (1B) and contrasting them with the traditional "conveniently belong" approach, Haylen J observed: 117 The Commission accepts the thrust of the submissions for the Minister that s 218 (1A) introduced a fundamental change for Sch 5 organisations seeking industrial registration under the IR Act. The strictures of the traditional conveniently belong test were set aside. A new test was established, in terms much less rigorous than the traditional conveniently belong test and reflecting the legislative intention that the members of Sch 5 organisations were to be accorded freedom of choice in the organisations to which they wished to belong, uninhibited by previous policies. In effect, the section introduced the concept of competitive unionism in New South Wales although that concept (in less amplified terms) had been in operation under Federal industrial legislation since the mid-1990s. … 125 Section 3 (d) of the IR Act continues to lay down, as an object of the IR Act, the encouragement of participation in industrial relations by representative bodies of employees. In this context, the continued existence of EMSPA in any of its emanations now cannot be dismissed as a passing fad. Even under the strictures of the traditional conveniently belong test, unions were registered in recognition of the fact that it was better to bring employees into the system of industrial relations than leave them outside and potentially beyond jurisdiction. For example, in Australian Mutual Provident Society Staff Association v Australian Insurance Staffs Federation (1944) 53 CAR 836 at 849, Piper CJ spoke of it as being undesirable to refuse registration because it was "better to have more than one organisation than to have a large number of employees unorganised". 126 It is also worthy of note that even under the single union approach that had previously existed using the traditional, conveniently belong test, nevertheless, new organisations were registered where they were able to establish that there was some particular community of interest amongst the applicant employees that warranted recognition by way of separate registration as against an organisation with more general coverage (see, for example, the AMP Society Staff Association case and the Association of Professional Sciences of Australia (1961) CAR 920). Because of the 2012 amendment to the IR Act, it is unnecessary to "plumb the depths" of this proposition but it is clear that there is a community of interest amongst the now highly skilled paramedics that is different to the much more generally based membership of the HSU.

[24]

The "Conveniently Belong" Test

The HSU submitted that the Registrar must not consent to the alteration to the Rules of the APA if there is another industrial organisation to which the relevant employees might conveniently belong. The application of the test requires a two-step approach:

It is necessary to identify the persons who would become eligible for membership because of the alteration; and
The Commission must form an opinion as to whether there is another organisation of employees to which those persons might conveniently belong.

What Haylen J described as "the strictures of the traditional conveniently belong test" are applicable to the present proceedings.
The "conveniently belong" requirement places strict limits upon the capacity of registered organisations to alter their eligibility rules, of avoiding a multiplicity of unions in one industrial field, avoiding overlapping union representation and reducing competition between unions: The AWU Rules Alteration Case.
The "conveniently belong" test refers not to flesh and blood individuals but to the genus of persons who might belong: Australian Education Union v Lawler (2008) 169 FCR 327; [2008] FACFC 135; Re Chamber of South Australian Employers (No 2) (1991) 43 IR 424 at 432-433 and Australian Education Union v Australian Principals Federation (2006) 158 IR 360 at [136].
Mere preference of workers to be represented by another union should not be given significant weight unless the existing registered union would not actually represent the interests of the particular class of employees concerned: The BHTEU Case.
The applicant union bears the onus of demonstrating that the objecting organisation would be unable to assume the role of adequately representing the particular class of employees concerned: Re Federal Firefighters Union (1990) 35 IR 27.
For its part, an objecting union also bears a level of onus: Re Chamber of South Australian Employers Inc (No 2) (1991) 43 IR 424 [at 441-442]. The objecting union must demonstrate, not only its constitutional capacity to represent the industrial interests of the particular class of employees concerned, but also its involvement or likely involvement in adequate representation of the industrial interests of the relevant class of employees: Re Federal Firefighters Case; PSA v BHTEU (2003) 125 IR 54 at [21].

[25]

Statutory Provisions

It is not in dispute that the APA currently has no constitutional capacity to cover employees not employed by New South Wales Ambulance.
The objects of the Act relevantly provide: 3. Objects (c) to promote participation in industrial relations by employees and employers at an enterprise or workplace level, (d) to encourage participation in industrial relations by representative bodies of employees and employers and to encourage the responsible management and democratic control of those bodies.
The Act undoubtedly encourages the participation in industrial relations by representative bodies of employees. I accept that the Industrial Commission has a broad discretion to exercise in consideration of each individual application and has traditionally supported the principle that it is more important for employees to have industrial representation than for a "a large group of employees" to remain out in the cold and beyond jurisdiction.
Nevertheless, registration of organisations is not automatic but is subject to checks and balances as evidenced by the fact that the Industrial Registrar is not provided with carte blanche to consent to applications for alterations to rules.
The capacity of the Industrial Registrar to give consent to an alteration to the rules of a State organisation is governed by s 245 of the Act and, in particular satisfaction in relation to the requirements of ss 245 (2) and (3).
Section 245 states: 245 ALTERATION OF RULES OF STATE ORGANISATION (1) An alteration of the rules of a State organisation does not take effect unless the Industrial Registrar consents to the alteration. (2) The Industrial Registrar may consent to an alteration of the rules in whole or part, but must not consent to an alteration unless satisfied that the alteration: (a) complies with, and is not contrary to, this Act and relevant awards or orders of the Commission made under this Act, and (b) is not otherwise contrary to law, and (c) has been made under the rules of the organisation. (3) The Industrial Registrar must not consent to an alteration of the rules of an industrial organisation of employees relating to eligibility for membership of the organisation if, in relation to persons who would be eligible for membership because of the alteration, there is, in the opinion of the Industrial Registrar, another industrial organisation of employees to which those persons might conveniently belong. (3A) The Industrial Registrar must not consent to an alteration of the rules of an industrial organisation of employees to which Schedule 5 applies relating to eligibility for membership of the organisation (being an application for consent made before, or within 12 months after, the date of assent to the Industrial Relations Amendment (Industrial Representation) Act 2012) if, in relation to persons who would be eligible for membership because of the alteration there is, in the opinion of the Industrial Registrar, another organisation: (a) to which those persons could more conveniently belong, and (b) that would more effectively represent those persons. (3B) However, subsection (3A) does not apply if the Industrial Registrar accepts an undertaking from the organisation that the Industrial Registrar considers appropriate to avoid disputes as to the demarcation of the industrial interests of the organisation and any other organisation that might otherwise arise from an overlap between eligibility for membership of the organisation and membership of the other organisation. (3C) In determining under subsection (3A) whether an existing organisation would more effectively represent members than the applicant organisation, the Industrial Registrar must have regard to the resources and representative infrastructure of the applicant. (3D) The Industrial Registrar may refuse to consent to an application referred to in subsection (3A) for consent to an alteration of the rules of an industrial organisation of employees if satisfied that the alteration would contravene an agreement or understanding to which the organisation is a party and that deals with the organisation's right to represent under this Act the industrial interests of a particular class or group of employees. (4) If particulars of an alteration of the rules of a State organisation have been lodged with or recorded by the Industrial Registrar, the Industrial Registrar may, with the consent of the organisation, amend the alteration for the purpose of correcting a typographical, clerical or formal error. (5) If the Industrial Registrar consents under this section to an alteration, the alteration takes effect on the recording of the change by the Industrial Registrar. (6) This section does not apply in relation to an alteration of the rules of a State organisation that is: (a) determined by the Industrial Registrar under section 244, 244A or 247, or (b) proposed to be made for the purpose of an amalgamation under this Part.

[26]

Decision

Accordingly, Matter No. 29874 of 2016 is hereby dismissed.

[27]

ACTG CHIEF COMMISSIONER 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. Decision last updated: 17 March 2017

The APA submission was entirely dependent upon the assertion that employees should be able to elect to join any union of their choice, a submission that does not assist the Commission with the task of deciding whether to consent to an alteration to the eligibility rules of a union.
The APA has not addressed the statutory criteria that the Commission is required to address. Section 245 (3) requires the Commission to consider whether there is another organisation to which the relevant group of employees might "conveniently belong". It was submitted that the acknowledged objective and underlying policy rationale of the "conveniently belong" test is "to place strict limits upon the capacities of organisations to alter their eligibility rules, to avoid a multiplicity of unions operating in one industrial field and pursue what has been regarded as the industrially desirable policy of reducing competition between unions". It was noted that the APA had not advanced any submission that the HSU is not an organisation to which the PTOs, previously working within the Green Fleet in NSW Ambulance, might "conveniently belong". The only evidence the APA has put forward is that there are a number of individuals who wish to remain members of its association.
The APA accepted that it was unable to rely on the provisions of s218 of the Industrial Relations Amendment (Industrial Representation) Act 2012 on this occasion.
The "conveniently belong" test is applied in two stages: stage one involves identifying the class of employee concerned. Whilst the APA witnesses were confused as to what the APA was seeking, its submissions seem to indicate that coverage was being sought in relation to the APA's PTO members who were previously employed in the green fleet. Stage two involves the Commission forming an opinion as to whether or not there is another organisation to which the group identified in stage one might belong.
The HSU submitted that the federal approach pre 1996 aligned with the current approach in the NSW Act. The meaning of the section has been considered on numerous occasions since 1904. The union cited Moore DP in Re: ASMOF [at p 434-435]: The meaning of the section has been considered on numerous occasions since 1904 and was considered by the Court of Conciliation and Arbitration as early as 1919 when Higgins J, in Australian Ship and Wharf Workers' Association v Waterside Workers Federation (1919) 13 CAR 4, said: "I see no way of giving full effect to the language used unless we treat 'conveniently' as meaning conveniently in an industrial sense, in the aspect of joint protection from the employers, and from the point of view of the interest of the public and the proceedings of the Court as the instrument of the public" (at 9). His Honour had earlier observed, in discussing the purpose of s 59, that: "the object is, of course, to prevent the evils which arise from competing unions - unions which cater for workers who perform the same class of functions" And "But experience has shown that competition between trade unions for members is disastrous to industrial organisation and to industrial peace" (at 7).
Section 245 of the Act reflects the view that the strength of the union is upon its collective. Competition and multiple unionism is disastrous to industrial organisation, to the strength of the group of workers and to industrial peace. Breaking unions up into small groups is resisted by unions.
Legislative policy has been directed towards avoidance of overlapping between organisations which ultimately leads to demarcation disputes. Moore DP cited Murphy J in R v Portus; Ex parte Transport Workers Union of Australia (1977) 141 CLR 1 who stated [at 26]: The legislative policy has also been to avoid the overlapping between organisations which leads to demarcation disputes. Thus, s 142 of the Act gives power to refuse registration to an association if an organisation to which the members might conveniently belong has already been registered.
Moore DP went on to hold (at p 437}: … The object of s 142 is, in my view, to avoid the registration of a number of organisations representing the same class of employee and therefore to limit the number of organisations participating in the process of conciliation and arbitration established by the C & A Act and the question of convenience, including the degree and nature of the convenience, has to the assessed with that object in mind. The question s 142 required to be answered is not whether it is more convenient for the members of an applicant association to be represented by that association in this system of conciliation and arbitration as compared to an organisation already registered nor is it whether the association, if registered, is likely to more vigorously pursue the industrial interests of the class of employees in question than the existing registered organisation. The question is simply whether it is convenient for them to belong to and therefore be represented by the existing registered organisation.
The Commission is not required to conduct a comparative analysis as to which organisation provides a more superior service. It merely has to form a view as to whether there is another organisation to which the employees can belong.
The HSU cited the decision in the Broken Hill Town Employees Case in which a Full Bench of the Commission opined [at parag 24] that "the mere preference of workers to be represented by another union may not be of significant weight". It is the convenience of the group generically ascertained that is significant - the "conveniently belong" test refers not to flesh and blood individuals but to the genus group of employees concerned. It is not about the particular views of some employees but whether the class of employees might "conveniently belong". In that regard, the HSU relied on the judgment in Re Chamber of South Australian Employers Inc (No 2) (1991) 43 IR 242 wherein a Full Bench held that the same approach applied in alteration of rules cases as applied to registration of new organisations: The meaning to be given to the expression "the members of the association" arises for construction in connection with two quite distinct questions. The first relates to whether the body of members is severable into separate groups or classes for purposes of applying the conveniently belong test. The second relates to whether the test is to be applied by reference to the actual members of the applicant association or to members in an abstract sense comprehending both actual members and others who collectively might from time to time constitute the association. In the Architects case the expression was taken to refer to the members in a "generic" sense (at 367). In that case the decision of the Full Bench comprised of Coldham J, Hancock DP and Smith C is crystallised in the following passages: In our view the question of whether the members of an applicant association might conveniently belong to an existing registered organisation should be considered generically rather than by reference to those particular persons who happen to be members at the time of the application for registration or when the Registrar determine the objections or any other particular time. In the present instance "the members" are architects and the rules of the applicant are wide enough to include all industry. The question to be considered would therefore appear to be: might architects conveniently belong to any and which of the objecting organisations? We use the subjunctive mood because it reflects the tense in which the section is case and reinforces, in our view, the need for a generic approach to the question. Once architects in that sense are the subject for consideration the totality of flesh and blood members or the substantial totality thereof need not be considered … All this is not to say, however, that the persons who are actually members at the relevant time, may not be an important consideration in an issue to be decided under s 142. Such is the case where persons form a 'breakaway' association and seek its registration because of personal or political antipathies with the dominant organisation…. However, in such cases the generic approach remains germane to the issues to be determined under s 142. It is the class of persons who have broken away and who seek separate registration whose interests must be considered.
The uncontested evidence of the HSU is that it represents a greater number of the relevant class of employees than the APA. It has as members approximately 79 out of about 200 members of the former Green Fleet. It also has about 283 members who are PTOs across the State. Unlike the AWU and Firefighters, it has historically been industrially representing that group of employees for many years. Even if some individuals choose not to belong to it, it is not an argument that addresses the "conveniently belong" criteria.
The internal structure of the HSU provided historically for the establishment of an ambulance division and, more recently, for the representation of PTOs overall. It was noted that Mr Hayes was not cross-examined on the annexures to his affidavit evidencing all the efforts made by the HSU in relation to job security, introduction of technology, rostering, job allocation, meal breaks and the like in relation to PTOs.
Mr Wilson conceded that he was fully aware that the HSU was representing the PTOs in each of the issues that the APA was making representations about. When one applies the "conveniently belong" test, it is apparent that the HSU has pursued, and is continuing to pursue, these interests and the employees in question can conveniently belong to it.
Following the transfer, the employees were guaranteed a continuation of conditions. The HSU is the only union party to the award and has had primary carriage of it for many years. Another argument in favour of the employees conveniently belonging to the HSU.
The services provided by the HSU are the kind of services that an advanced, mature, large union is able to provide to members - another support for the "conveniently belong" argument.
The HSU argued that the APA has not grappled with the "conveniently belong" argument. If it was sufficient to merely provide evidence of a small number of employees who prefer to be members of another organisation, then there would be no constraint upon the alteration of eligibility rules of unions.
During cross-examination, it became obvious that some APA witnesses did not have a full appreciation of the present position of the HSU and the services it is able to provide. Some APA witnesses blamed some industrial outcomes on the HSU when in fact they were the result of decisions of the Commission; some lacked awareness of the changes that had been made to representation structures in recent times, particularly in relation to financial management; some were unaware that Mr Williamson, Ms Jackson and Mr Thompson have not had any association with the HSU for some years or that sweeping changes have been made to improve governance and financial management or that proceedings have been brought against those individuals to recover union moneys.
Given the evidence before it and the submissions of the HSU, the Commission cannot be satisfied that the requirements of s 245 (3) have been satisfied and therefore cannot consent to the rule alteration in any terms.
The application, in its original form, has a number of difficulties: 1. It applies to any person previously employed as a PTO by NSW Ambulance and is not limited to those transferring or those transferring at any particular time. Those persons are, in actual fact employed by the Government of NSW to work in a particular agency within the Government; 2. The term "transfer" is not defined; 3. It is not clear what "another department within the Ministry" means. Not only are there no departments within the Ministry, but it leaves open-ended the issue of subsequent movement of the employees. Mr Wilson gave evidence that the APA would want to follow them if they got transferred again in the future. The Commission cannot be asked to make an adjudication with regards to unknown and uncontemplated matters.
The application, in its amended form, has addressed matters (a) and (b) above by limiting the alteration to those persons who transferred on 15 February 2016.
The amended application still does not address item (c) above in regards to what happens in the future. The coverage seems open-ended even if the PTO makes a career change.
There is no precedent and the Commission should not be expected to re-draft the rule alteration if it is defective in fundamental ways.
Registration of PTO, so far, is limited to persons working within NSW Ambulance.
The HSU went on to analyse the evidence given by the witnesses on behalf of the APA. Gary Wilson, a paramedic at Gundagai, was an HSU member during the period 2001-2011. He joined EMSPA in 2012 and has been Secretary of the APA since 2013. He conceded that he had received assistance from HSU in 2009 regarding a debt collection issue and again in 2010 regarding a secondary employment issue. He had also been the recipient of an educational scholarship. He had also received advice on a transfer to another position because of an injury. He agreed that the APA has no experience in representation and has not represented persons outside of NSW Ambulance.
In relation to the purpose of the current application, his understanding was that the application was to provide all PTOs transferring from NSW Ambulance to HealthShare with the opportunity to elect which union to join whether or they are members of the APA at present or not.
Mr Wilson agreed that EMSPA, as it then was, was founded by paramedics and the overruling majority of its members are paramedics. He confirmed that the APA currently has approximately 1700 members of which about 50 are PTOs. He also confirmed that the APA offered PTOs employed by NEPT free membership for up to three months from 1 December 2015. He further confirmed that, despite the deadline, the offer was still available with the offer being free membership for 3 months for new PTO members. He conceded that one of the purposes of the free membership was "to bolster the membership of the APA in order to put it in a good position to endeavour to extend its coverage".
Mr Wilson confirmed that, as at the 16 February 2016 Member Update, the APA announced that pending the finalisation of its rule change application to expand its eligibility rules, the fee waiver for PTO members will continue - in other words, the fee waiver is ongoing and indefinite. The said Member Update invited PTOs to enrol as honorary members even after the transfer has occurred. Honorary members are afforded all the benefits of ordinary members.
Mr Wilson confirmed the following statistics: 1. there are, until fairly recently, seven members on the Executive Committee, the ruling body of the union. The PTOs are not represented on that that body; 2. there are eight Executive Liaison Officers who are all paramedics; and 3. of the 42 Liaison Officers who are workplace delegates and who report directly to the eight Executive Liaison Officers, only three are PTOs.
Mr Wilson also confirmed that the name change to APA was willingly made to make it clear that the organisation was established by paramedics for paramedics and PTOs are not paramedics.
Mr Wayne Anthony Flint has been a paramedic since 1981. He was involved with the registration of EMSPA in 2013. He is currently Assistant Secretary of the APA.
Mr Russell Holmes has been a PTO since 2004 and has never been a member of the HSU. He became aware of the existence of the APA since its registration in 2013. He joined the APA in January 2015 as a result of problems he was experiencing at work with management. His view of the HSU is that it is a corrupt organisation. He admitted that he did not know that Craig Thompson was already a Member of Parliament when the corruption became public. He also admitted that he had not kept himself informed of any changes made within the HSU as a result of the Temby Report, or of the appointment of a former Federal Court Judge as an administrator in 2012. He further admitted that he had presumed that all increases in wages and improvements in conditions he had enjoyed in the period between 2004 - 2015 had occurred as a result of increases in inflation.
In conclusion, the HSU submitted that the Commission cannot consent to the alteration sought unless it is satisfied that the requirements of s 245 (2) and (3) are met. The Commission cannot give that consent because the HSU is an organisation to which PTOs, who would become eligible to join the APA as a result of the alteration to its rules, might "conveniently belong".

The established Principles in relation to the "conveniently belong" argument that have been relied on by the parties may be distilled as follows: 1. The Applicant bears the onus of establishing that the objecting organisation would be unable to assume the role of adequately representing the class of employees concerned: (Re Federal Firefighters Union); 2. The onus of establishing there is an organisation to which the relevant members may "conveniently belong" in the federal jurisdiction rests upon the objector (BHTEU Case [at 23]; Re: Association of Professional Engineers (1952) 73 CAR 134; 3. For its part, an objecting union also bears a level of onus: Re Chamber of South Australian Employers Inc (No 2) (1991) 43 IR 424 [at 441-442]. The objecting union must demonstrate, not only its constitutional capacity to represent the industrial interests of the particular class of employees concerned, but also its involvement or likely involvement in adequate representation of the industrial interests of the relevant class of employees: Re Federal Firefighters Case at [21]; PSA v BHTEU (2003) 125 IR 54 at [21]. 4. Bare constitutional coverage is not sufficient to sustain an objection on grounds of "conveniently belong" [BHTEU Case at 21]. The Commission is to consider the convenience of the employees as proposed members of the applicant (The AWU rules Alteration Case) [at 27]. 5. The objectives of the Act attach importance to registered organisations actually as well as legally representing particular classes of employees [BHTEU Case at 24]; 6. The "conveniently belong" test refers to the genus of persons who might belong and not to flesh and blood individuals (AEU Case); Chamber of SA Employers (No 2) Case) [pp [423-424]; 7. The mere preference of workers to be represented by another union does not hold significant weight unless the existing registered union does not actually as well as legally represent that particular class of employee: (The BHTEU Case)[at 24]; 8. It is not in accordance with the declared intention of the Act that any considerable part of the employees in an industry should remain unorganised. To avoid this it is better to have more than one organisation in an industry [BHTEU Case at 24]; 9. In EMSPA, Haylen J observed that: ….. Even under the strictures of the traditional conveniently belong test, unions were registered in recognition of the fact that it was better to bring employees into the system of industrial relations than leave them outside and potentially beyond jurisdiction. 1. The principles as to the meaning of the term in the Federal legislation are of some relevance [BHTEU Case at 22]; 2. The exercise of the discretion requires that each case is to be considered on its own merits and how the implementation of the decision would be practical in its operation: The Australian Workers' Union, New South Wales, Application for alteration of Rules pursuant to s 245 of the Industrial Relations Act 1996, (2011) 206 IR 150; [2011] NSWIRComm 12 (2 March 2011)(the AWU Rules Alteration Case) [at 27]; 3. The general policy objective is to avoid a multiplicity of unions in the one industrial field (the AWU Rules Alteration Case) [at 27] 4. The degree and nature of the convenience has to be assessed with the object in mind of avoiding overlapping union representation: In Re Australian Salaried Medical Officers Federation (1989) 28 IR 431 at 437. 5. The Commission does not have a residual discretion to reject the application once the applicant organisation has established that the conditions have been complied with: Re The Australian Chamber of Manufactures, New South Wales Branch 50 IR 87 (the ACM Case): 101 … The Registrar has a duty under that subsection to exercise in favour of the applicant the power to grant an application for registration where the matters contained in pars (a) to (h) are established to his satisfaction. Those matters, of course, are wide-ranging in nature, concerning as they do both general and particular considerations. 1. The Commission is able to reduce the scope of the change in the rules to comply with the section: Application by CPSU, the Community and Public Sector Union PR955207, AIRC 24 January 2005 (the CPSU Case): [88] … It has long been accepted that the power to consent in whole or in part enables the repository of the power to deal with objections by modifying the alteration so as to limit its scope. The modification may be achieved either by excising text or by redrafting the alteration to the rule to reduce its scope….

I accept that ss 245 (3A) - (3D) are not applicable in the present circumstances.
S 245 (3) requires the Industrial Registrar to consider whether there exists another industrial organisation of employees to which those persons identified in the amended variation might "conveniently belong".
The HSU has objected to the change in the APA eligibility rules to reflect either of amendments on the basis that there is another industrial organisation of employees, namely the HSU, to which those persons might "conveniently belong" for the purposes of s 245 (3) of the Act.
I do not accept that the HSU objection is contrary to law as that industrial organisation has constitutional coverage of PTOs and the Act allows for that organisation to be heard on any objections it may raise in relation to the "conveniently belong" test.
A great deal of evidence was placed before the Commission in relation to the ability of both organisations to adequately provide for the industrial and other needs of PTOs within their respective organisations. That evidence has been detailed above and is distilled below.
The HSU has, over its 106-year history, the constitutional capacity to represent the industrial interests of non-nursing professional positions across all parts of the public health system - in hospitals, universities and the ambulance service. Relevantly, it has the constitutional capacity to represent PTOs transferred to HealthShare and had sole coverage until 2013. The APA, was founded in 2009 and became registered in 2013 originally as EMSPA. Its eligibility rules allow it to share union coverage of persons working for NSWA as Paramedics, PTOs in the Green Fleet or in paramedic support positions. The APA has never had coverage of PTOs working in the LHDs.
I do not accept that the APA has satisfied that the onus of demonstrating that the HSU would be unable to assume the role of adequately representing PTOs. That Union is already doing so and has been doing so for very many years.
The movement of PTOs from NSWA to HealthShare has resulted in the APA's loss of coverage of that class of employee. The HSU has resumed sole constitutional coverage of PTOs.
Despite its ineligibility to cover PTOs employed by HealthShare, the APA has offered, and continues to offer, free membership as an incentive to attract that class of employee to enrol as members of that Union. Its PTO membership is therefore blurred by the fact that there is no evidence as to how many PTOs are members merely from a preference point of view or merely because they can receive the services that union officers, albeit slightly limited that those offered by the HSU, for free.
The HSU has substantially more PTO members than the APA. Of the former's 32,725 members, 283 are PTOs (79 of whom were transferred to HealthShare from NSWA). The APA has 1726 members of whom 53 are PTOs.
The HSU has had sole coverage of PTOs employed directly by the LHDs. As a result of the move of members of the Green Fleet to HealthShare, all PTOs are now part of a single patient transport service. Granting the application in either its original form or its amended form would result in a division being re-created but this time within the one employer.
The HSU has an Ambulance Division within its structure with its own dedicated Manager. PTOs are allocated to that Division which has sub-divisions at the workplace level within the hospital at which they are based, serviced by HSU Organisers, to allow for participation by all members with decision-making being enhanced by the creation of a PTO delegates Committee. The President and an elected Councillor of the HSU are drawn from the ranks of the PTOs.
The HSU is the only union party to the awards which prescribe all aspects of the employment of PTOs, namely, the Health Employees' (State) Award, the Health Employees' Conditions of Employment (State) Award and the Health Industry Status of Employment (State) Award.
In the AWU Case, Haylen J, said: [25] …. The concepts behind the "conveniently belong" test have long been accepted to include the industrially desirable policy of reducing competition for membership between unions and to promote the purposes of the then current State Industrial regulation… [emphasis added]
The test of whether there is another organisation to which persons might "conveniently belong" was discussed in BHTE' Union Case at [18] - [24]. I accept the HSU submission that the test reflects a general policy objective of placing strict limits upon the capacity of organisations registered under the Act to alter their eligibility rules, of avoiding a multiplicity of unions in one industrial field, avoiding overlapping union representation, and of pursuing the industrially desirable policy of reducing competition between unions.
I further accept that the reliance by the HSU on the decision in Australian Education Union v Lawler (2008) 169 FCR 327; [2008] FACFC 135 is justified as it supports the HSU submission that the "conveniently belong" test refers not to flesh and blood individuals but the genus of persons who might belong to that association and the convenience of whose potential membership of an existing organisation is controversial. The view was expanded on in Re Chamber of South Australian Employers (No 2) (1991) 43 IR 424 at 432-433 and Australian Education Union v Australian Principals Federation (2006) 158 IR 360 at [136] where it was stated that the test is to be undertaken "generically rather than by reference to those particular persons who happen to be members at the time of the application for registration".
The mere preference of workers to be represented by another union is not a matter that would be given significant weight, unless it could be demonstrated that the existing registered organisation would not actually represent the interests of the particular class of employees concerned: Public Service Association of NSW v Broken Hill Town Employees' Union (2003) 125 IR 54 at [54]. It is noted that the evidence on the concerns of the APA witnesses were encapsulated by Mr Hayes under three headings :

Industrial Outcomes: It was contended that the HSU had failed to achieve certain industrial outcomes for PTOs. During cross-examination, the witnesses revealed that they had no knowledge of whether the HSU in fact bore any responsibility for the industrial outcome complained of and, frequently, revealed that they were attributing blame to the HSU for a decision of the Commission.
Representation or communication with members: Those APA witnesses who had been members of the HSU complained about the degree of communication/consultation with members prior to 2011. During cross-examination, it was revealed that they were not aware, or failed to acknowledge, changes introduced by the current leadership (for example, the establishment of a specific Ambulance Division, a Delegates Committee for PTOs and new methods of communicating with members). The majority of the APA witnesses, however, had never been members of the HSU and were thus unable to give any direct evidence of experience of the services provided by the HSU.
Corruption or Financial Mismanagement: A number of witnesses expressed concern as to corruption within the HSU (by reference to the allegations against Michael Williamson, Kathy Jackson or Craig Thompson) in the absence of knowledge about the changes which have been implemented by the HSU since 2012 - the appointment of the Hon Justice Moore as administrator, the report by Ian Temby in relation to governance and financial management, the introduction of improved accounting and governance standards, legal proceedings against Williamson and others for recovery of monies and reduction in salaries for officials. In his statement, Mr Hayes pointed out that since he became Secretary in 2012, he had embraced the reforms (enumerated in detail in the statement) necessary to make the HSU one of the most accountable and transparent unions in the country. In 2013, the HSU published a Charter of Reform to demonstrate a commitment to restructure the Union and reinstate democracy.

The APA offered free membership to PTOs in the period leading up to the hearing. It is not known how many joined the union in order to take advantage of the industrial and other services offered by the APA. It is notable, however, that despite that "carrot", there was no exodus or even a marked movement from the HSU to the APA.
Natural attrition, or voluntary turnover, is inevitable and uncontrollable across all industries. The main concern with the application is the fact that the number of PTO members of the APA who were transferred on 15 February 2016 to another department of the MoH will, undoubtedly, diminish over time for all sorts of reasons, including death, resignation, transfer to a position other than a PTO, dismissal and so on. That is all the more reason why it is necessary to consider the genus of person who might belong rather than the preferences of individual members of the APA.
In any event, the APA witnesses, in cross-examination, acknowledged that while they mistrusted the HSU over the Williamson/Jackson/Thompson affair, they were not aware of what actions the HSU had taken to improve governance and financial management of that union.
The applicant union bears the onus of demonstrating that the objecting organisation would be unable to assume the role of adequately representing the particular class of employees concerned: Re Federal Firefighters Union (1990) 35 IR 27 at [37]. In my view, it has not discharged that onus.
I am satisfied from the material evidence before the Commission that the HSU has the kind of services that an advanced, mature, large union can provide. It is the only union party to the relevant award and has had carriage of it for many years. It has taken public and independent steps to improve governance and financial management of the union since the Williamson/Jackson/Thompson scandal. I am satisfied that the internal structure of the HSU provides for the industrial and other needs of its members, including PTOs.
In conclusion, a registered organisation already exists which, on the material before me, adequately represents the industrial and other interests of PTOs. I conclude that the PTOs can conveniently belong to the HSU.

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