Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch and Australian Workers Union [2002] NSWIRComm 26

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, NEW SOUTH WALES BRANCH LEGAL REPRESENTATIVES: Ms S Terpstra

ELECTRICAL TRADES UNION OF AUSTRALIA, NEW SOUTH WALES BRANCH Ms S Terpstra

HEALTH ADMINISTRATION CORPORATION Ms M Szalay

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Matter No IRC 2937 of 2000 AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION, NEW SOUTH WALES BRANCH

Application for an order to alter the rules of an organisation pursuant to s 295(2) of the Industrial Relations Act 1996. JUDGMENT

1 On 15 March 2001 the Commission handed down a Decision ([2001] NSWIRComm 41) in this matter the effect of which was that: …the AFMEPKIU should have the right, to the exclusion of the AWU, to represent the industrial interests of those classes of employees employed under the terms of the Public Hospital Employees Skilled Trades (State) Award, together with trades assistants and apprentices employed in public hospitals, who are eligible to be members of the AWU with the exception of electricians. I have also reached the conclusion that The Australian Workers' Union, New South Wales is not to have the right to represent the interests of employees employed under the terms of the Public Hospital Employees Skilled Trades (State) Award who are eligible to be members of the AFMEPKIU, CFMEU, PGEU or ETU, or trades assistants and apprentices associated with the trades covered by these four unions under the Award.

2 Orders reflecting the Decision were made in the following terms: 1. The application in Matter No. IRC 380 of 2000 is dismissed.

2. The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch is to have the right, to the exclusion of The Australian Workers' Union, New South Wales, to represent under the Industrial Relations Act 1996 the industrial interests of the following classes or groups of employees: (a) Employees employed under the terms of the Public Hospital Employees Skilled Trades (State) Award who are eligible to be members of the AWU, except electrical fitters and electrical mechanics; (b) Trades assistants employed in public hospitals who assist employees described in sub-par (a) hereof and who are eligible to be members of the AWU; (c) Apprentices employed in public hospitals who are apprenticed to any of the trades in which employees described in sub-par (a) hereof are employed and who are eligible to be members of the AWU. 3. The Australian Workers' Union, New South Wales is not to have the right to represent under the Industrial Relations Act 1996, the industrial interests of the following classes or groups of employees: (a) Employees employed under the terms of the Public Hospital Employees, Skilled Trades (State) Award who are eligible to be members of the Automotive, Food, Metals, Engineering Printing and Kindred Industries Union, New South Wales Branch or the Construction, Forestry Mining and Energy Union, New South Wales Branch or the New South Wales Plumbers and Gasfitters Employees' Union, or the Electrical Trades Union of Australia, New South Wales Branch; (b) Trades assistants employed in public hospitals who assist employees described in sub-par (a) hereof and who are eligible to be members of one or more of the aforementioned organisations of employees; (c) Apprentices employed in public hospitals who are apprenticed to any of the trades in which employees described in sub-par (a) hereof are employed and who are eligible to be members of one or more of the aforementioned organisations of employees. 4. The foregoing orders shall take effect on and from 19 March 2001.

3 Subsequently, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch ("AFMEPKIU") applied to alter the Rules of the Australian Workers' Union New South Wales ("AWU") to reflect the Orders made by the Commission on 15 March 2001 pursuant to s 295(2) of the Industrial Relations Act 1996. The AFMEPKIU's application was supported by the Construction, Forestry Mining and Energy Union, New South Wales Branch ("CFMEU"), Electrical Trades Union of Australia, New South Wales Branch ("ETU") and the Health Administration Corporation ("HAC"). The application was opposed by the AWU. I was informed by the AWU and AFMEPKIU that the Labor Council of New South Wales had no relevant interest in the matter.

4 Part 6 of Ch. 5 of the Act provides as follows in relation to the determination of demarcation questions: Part 6 Demarcation orders

294 Determination of demarcation questions concerning interests of industrial organisations of employees

(1) The Commission may, by its order, determine any question as to the demarcation of the industrial interests of industrial organisations of employees (demarcation order). (2) A demarcation order may be made on the Commission's own initiative or on application by an industrial organisation, an employer of a State peak council. 295 Demarcation orders - coverage of industrial organisations of employees

(1) The demarcation orders that the Commission may make include (but are not limited to) any one or more of the following orders: (a) an order that an industrial organisation of employees is to have the right, to the exclusion of another such organisation or other such organisations, to represent under this Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation, (b) an order that an industrial organisation of employees that does not have the right to represent under this Act the industrial interests of a particular class or group of employees is to have that right, (c) an order that an industrial organisation of employees is not to have the right to represent under this Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation. (2) When the Commission makes a demarcation order, the Commission may, after giving each industrial organisation and each State peak council concerned an opportunity to be heard, require the rules of the organisation to be altered in accordance with the demarcation order or a subsequent order of the Commission so as to give effect to the demarcation order. (3) Such a requirement has effect as follows: (a) In the case of a State organisation incorporated under this Act, the rules of the organisation are altered as specified in the order by force of this section. (b) In any other case, the Commission may cancel the registration of the organisation under Part 3 if the organisation does not alter its rules as specified in the order within the time allowed by the order. 5 The main points made in support of the rule alteration by Ms S Terpstra, appearing for the AFMEPKIU as well as the ETU and CFMEU, were as follows:

1. The AWU did not exercise its right of appeal. Therefore, the position of the AWU in continuing to oppose the proposed rule alteration is unusual, particularly in light of the fact that the proposed alteration does nothing more than to give effect to the orders made by the Commission on 15 March 2001. 2) It is the preferred position of the parties (except the AWU) to have the rules of the AWU reflect the decision made on 15 March 2001. This will give clarity, for all purposes and for all time, in respect of the right to coverage of skilled tradespersons employed in the public hospital system throughout New South Wales. 3) The proposed alteration to the AWU's rules will ensure that there will be continuing industrial harmony and certainty amongst the unions who have the industrial right to represent workers employed by the HAC. It would also give effect to the objects of the Act by encouraging the negotiations of conditions of employment in a fair and reasonable manner. Further, the proposed alteration would reduce the possibility of 'flare ups' over coverage issues. 6 Ms Terpstra tendered a draft alteration to the AWU's rules. The alteration was in the following terms: Provided that the following persons shall not be eligible for membership of the Australian Worker's Union: (i) Those employees employed under the terms of the Public Hospital Employees Skilled Trades (State) Award who are eligible to be members of the Automotive, Food Metal, Engineering, Printing & Kindred Industries Union New South Wales Branch, the Construction, Forestry, Mining and Energy Union, the Electrical Trades Union of Australia New South Wales Branch and Plumbers & Gasfitters Employees' Union; and

(ii) Trades Assistants employed in public hospitals who assist employees described in sub-paragraph (i) hereof and who are eligible to be members of one or more of the aforementioned unions; and

(iii) Apprentices employed in public hospitals who are apprenticed to any of the trades in which employees described in sub-paragraph (i) hereof are employed and who are eligible to be members of one or more of the aforementioned unions.

7 Ms M Szalay for the HAC also tendered a draft alteration, which was in the following terms: Provided that the following persons shall not be eligible for membership of the Australian Workers' Union: (a) Employees employed under the terms of the Public Hospital Employees Skilled Trades (State) Award who are eligible to be members of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch or the Construction Forestry Mining and Energy Union, New South Wales Branch or the New South Wales Plumbers and Gasfitters Employees' Union, or the Electrical Trades Union of Australia, New South Wales Branch;

(b) Trades assistants employed in public hospitals who assist employees described in sub-par(a) hereof and who are eligible to be members of one or more of the aforementioned organisations of employees;

(c) Apprentices employed in public hospitals who are apprenticed to any of the trades in which employees described in sub-par (a) hereof are employed and who are eligible to be members of one or more of the aforementioned organisations of employees.

8 Mr R Tripodi appeared for the AWU. His submissions may be summarised as follows:

1. It is a matter for the Commission's discretion whether it requires the rules of an organisation to be altered in accordance with any demarcation order under s 295(1)(a) and s 295(1)(c) of the Act. 2) In this case the Commission should not exercise its discretion in the manner proposed by the AFMEPKIU. 3) The orders made by the Commission under s 295(1)(a) and s 295(1)(c) of the Act are sufficient and it is unnecessary to take the next step to alter the AWU's rules because: a. The AWU has a low level of interest and participation in matters associated with the Public Hospital Employees Skilled Trades (State) Award; b. It would be inappropriate to alter the rules of the AWU where those rules are framed in terms dealing with "industries and occupations" but the demarcation orders made by the Commission relate essentially to employees under an award, namely the Public Hospital Employees Skilled Trades (State) Award. 4) In the alternative, if the Commission were minded to alter the AWU's rules, it should not be in the terms proposed by the AFMEPKIU because: a. The AFMEPKIU's proposed alteration would be inappropriate given the terms, structure and content of rule 6 of the AWU's rules; b. The proposed alteration would not give effect to the Commission's demarcation orders. 9 The rule alteration proposed in the alternative by Mr Tripodi was to add the following new provision to rule 6 of the AWU's rules: (c) Any member of the Union who is the subject of demarcation orders made by his Honour Justice Boland operative from 19 March 2001 (Matter No IRC 2937 of 2000) will cease to be a member of the Union within three months of 19 March 2001 and thereafter as notified by the Branch Secretary to the Branch Executive, be removed from the register of members by the Branch Executive and that person shall from that time cease to be a member of the Union. Consideration 10 It might be contended, as indeed it was by Mr Tripodi, that it is an unnecessary duplication to alter a union's rules when there is in existence a relevant demarcation order. I take the view, however, that when it comes to determining the fundamentally important question of an organisation's right to enrol persons as members the answer should be available, insofar as that is possible, from a reading of the source document, namely, the organisation's registered rules. Where it can be avoided, the ascertainment of coverage rights should not involve a separate search, perhaps stretching back over many years, for demarcation orders that may have the effect of expanding or limiting those rules but which are not even referred to in the rules.

11 Accordingly, I propose to amend the AWU's rules to reflect the demarcation orders made by the Commission on 15 March 2001. The approach I intend to take is that proposed by Mr Tripodi, which follows the approach adopted by Schmidt J in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Health and Research Employees Association of New South Wales (unreported, Matter No IRC 6733 of 1997, 29 May 1998) and Health and Research Employees Association of New South Wales v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (unreported, Matter No IRC 6735 of 1997, 29 May 1998).

Orders 12 The Commission makes the following orders:

1. The Rules of the Australian Workers' Union, New South Wales are to be altered by inserting the following provision at the end of Part B of Rule 6. Constitution: (c) Any member of the Union who is the subject of demarcation orders made by his Honour Justice Boland operative from 19 March 2001 (Matter Nos IRC 380 of 2000 and IRC 2937 of 2000) will cease to be a member of the Union within three months of 19 March 2001 and, thereafter as notified by the Branch Secretary to the Branch Executive, be removed from the register of members by the Branch Executive and that person shall from that time cease to be a member of the Union. 2. The Australian Workers' Union, New South Wales shall file an application with the Industrial Registrar to alter its Rules in accordance with Order 1. hereof within 90 days from the date of this Decision. 3. The foregoing orders shall apply from the date of this Decision.

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.