Australian Workers' Union, New South Wales and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch [2002] NSWIRComm 245

440 The relevance of employee preference in demarcation proceedings arises, in part, from the objects of the 1996 Act in respect of promoting participation in industrial relations by employees and employers at an enterprise or workplace level (sub-section 3(c)) and encouraging participation by representative bodies of employees (sub-section 3(d)). In NUW v TWU, Hungerford J noted that consideration of the interests of employees was often interpreted as their preference for one organisation over another, an interpretation which was understandable given that an organisation of employees is the "union of persons with a community of interest in the industrial relationship with an employer". 441 Employee preference is relevant but not decisive. The opinions expressed by employees need to be considered objectively. Hungerford J found this was the case in NUW v TWU, where his Honour stated (at 408): Nevertheless, employees preference for one organisation cannot be decisive, if only for the reason that where the interests of others are concerned, such as an employer or another organisation or the public interest, an objective as distinct from a subjective approach needs to be followed. I affirm my views in that respect as stated in Federated Ironworkers Association v Transport Workers Union (at 127) by reference to the views of Sweeney J in Health and Research Employees Association of Australia, NSW Branch v University of New England [1984] AR(NSW) 623 at 625-626; (1984) 8 IR 356 at 358 and to those of the former Industrial Commission in Court Session (Fisher P, Watson and Macken JJ) in Re Australian Workers Union, NSW Branch [1983] AR(NSW) 400 at 411; (1983) 4 IR 404 at 413. 442 In the Toll Collectors' Case, the employees clearly favoured the AWU, however, those views were set against a background of unrealistic expectations. The employees had exhibited a pattern of persistent behaviour where every issue was fought as urgent, where union representatives were continually called upon in often pre-emptory circumstances and where the current frustrations of the employees arose from a decision of the Commission which was contrary to their expectations. They had vented those frustrations upon the PSA rather than accepting the reality of the decision. In that sense, his Honour found that the views of the employees were not valid. 443 Similarly, in Re Australian Workers Union the Full Bench of the Commission in Court Session declined to follow the outcome of a secret ballot in which the employees expressed their preference between two competing unions in the context of an application where the AWU sought to amend its constitutional rules, to enable it to cater for the interests of a wider group of employees who had already been the subject of a demarcation order made in favour of the Shop Distributive and Allied Employees Association (SDA) (see [1981] AR 614). The outcome of the ballot occurred in the context of the SDA being "handicapped in putting forward its point of view prior to the ballot" (at 411). In those circumstances, the views of the employees could not be freely accepted and there were "substantial pragmatic reasons" why this was so. In the totality of the circumstances, the Full Bench held that both unions were capable of representing the employees and in time the employees would, in a reasonable and common sense way, accept whatever the final outcome of the application (at 411). 444 In PSA v HREA, Schmidt J considered the competing applications in circumstances where there was a rejection by many psychologists of the PSA. Those psychologists had expressed dissatisfaction with representation of the PSA on their behalf. Schmidt J's approach was to consider whether the "strongly held dissatisfaction" with the PSA was "either warranted on the evidence or of such a character as to properly lead the Commission to the conclusion that the historical representation of their interests should be disrupted" (at 152). Her Honour's conclusion was that past representation, whilst open to valid criticism in some regards, was not "so inadequate and unsatisfactory" as to warrant the granting of the application (at 154). Further, her Honour considered that whilst the decision of a large number of psychologists to join HREA was an important factor in favour of the HREA application, that factor must be weighted in the balance (at 157). Her Honour further observed: On occasions disputes arise between Unions over the coverage and representation of particular classes of employees, with some of those employees favouring one Union and some another. When such disputes are brought to the Commission, the Act requires the Commission to have regard to various considerations in addition to the wishes of the particular employees concerned. Those consideration are specified in s 221 of the Act. This approach results from the fact that Unions which are registered industrial organisations under the Act acquire various consequential rights and privileges which attach to such registration. Those rights and privileges reflect the particular and important role which registered organisations play in the scheme of industrial regulation established by the Act. 445 As was observed by the Full Bench on appeal from her Honour's decision (at 168): The views of particular members of an organisation, whilst relevant to take into account, are nevertheless subjective at best and must, we think, be assessed in an objective manner.

(1993) 51 IR 59

(1992) 44 IR 453

(1992) 44 IR 158

(1982) 59 FLR 78

(1989) 30 IR 241

(1990) 35 IR 396

(1998) 78 IR 123

(1995) 62 IR 90

(1990) 35 IR 314

(1988) 29 IR 263

(1986) 29 IR 243

(1997) 92 IR 158

(1990) 26 FCR 261

(1992) 42 IR 158

(1990) 44 IR 79

(1998) 84 IR 360

(1990) 35 IR 368

(1994) 54 IR 85

(1990) 36 IR 221

(1996) 92 IR 122

(1992) 50 IR 398

(1973) 129 CLR 654

(1981) 147 CLR 259

(1992) 42 IR 304

(1983) 57 ALJR 38

(1981) 38 ALR 363

(1989) 30 IR 107

(1994) 57 IR 1

(1991) 38 IR 265

(1983) 6 IR 304

(1989) 30 IR 81

(1994) 78 IR 123

(1996) 69 IR 41

(1983) 153 CLR 415

(1948) 77 CLR 123

(1984) 8 IR 356

(1983) 4 IR 404

[2001] NSWIRComm 41

[2002] NSWIRComm 118