Clerks (State) Conciliation Committee [2000] NSWIRComm 247

Industrial Relations Commission (NSW)|2000-07-01|Before: Glynn J, Cahill J, Mr J

CITATION : Clerks (State) Conciliation Committee [2000] NSWIRComm 247 APPLICANT Federated Clerks' Union of Australia, New South Wales Branch

RESPONDENTS National Union of Workers, New South Wales Branch

Real Estate Employers' Federation of New South Wales

PARTIES : New South Wales Road Transport Association

Printing and Allied Trades Employers Association, New South Wales

State Chamber of Commerce and Industry FILE NUMBER: IRC 4695 of 1999 CORAM: Glynn J Industrial Committee - Clerks (State) Conciliation Committee - dissolution unopposed - establishment of Clerical and Administrative Employees (State) Industrial Committee not opposed - inclusion in coverage of Industrial Committee of "canvassers (other than canvassers for the sale of goods)" opposed by NUW and employers - meaning of "canvasser" and "goods" - interaction of s 7 and of s 198(1) of the 1996 Act as to meaning of "industry" considered - held: definition of "industry" in s 7 is not to be read down by use of term "particular" in s 198(1) - Application granted. CATCHWORDS : Clerical and Administrative Employees (State) Industrial Committee - collision alleged by NUW with Advertising Sales Representatives (State) Industrial Committee - witnesses claimed by NUW to be canvassers engaged in sale of goods and of advertising space and so covered by the latter committee - position of NUW not supported by either evidence or authorities relied upon - claim of "collision" rejected. Industrial Relations Act 1996 s 198 s 200 s 7 LEGISLATION CITED : Industrial Relations Act 1991 s 336 Industrial Arbitration Act 1940 (NSW) s 18 In re Crown Employees (General) Conciliation Committee [1955] AR 530 In re Crown Employees (Hospitals and Homes) Conciliation Committee [1958] AR 360 Co-Operative Bulk Handling Ltd v Waterside Workers' Federation of Australia (1980 AILR Rpt 155) (1980) 49 FLR 355 Federated Clerks Union of Australia v The Industrial Life Assurance Agents Association (1942) 46 CAR 576 In re Federated Clerks Union of Australia, NSW Branch v Australian Workers Union [1971] AR 419 Franklin Mint Pty Ltd v National Union of Workers [Print S0959 and S1379, Whelan C, 15/11/99 and 29/11/99] In re Hospital Employees (Metropolitan) Conciliation Committee [1942] AR 50 CASES CITED : Knight v F P Special Assets Limited [1992] 174 CLR 178 National Union of Workers v Bendigo Advertiser and Independent Pty Ltd [Print M9365, Foggo C, 15/2/96] National Union of Workers v Elder Reserach [Print L9750, Lawson C, 27/2/95] National Union of Workers, NSW Branch v Modern Roof Restorations (NSW) Pty Ltd [1999] NSWIR Comm 31 (unreported, IRC98/3549, 11/2/99) In re Public Hospital Employees (State) and Hospital Employees (Metropolitan) Conciliation Committees [1960] AR 530 Report to Minister for Industrial Relations re Telephone Canvassers in New South Wales (Glynn J, 84/1714, 24/12/86) Summons to Show Cause by Commission on Own Initiative - Questions relating to performance of work by employees of John Fairfax & Sons Limited (unreported, Cahill J, 77/114, 3/8/77) The University of Adelaide Non-Academic Staff (Preliminary Issues) Case (46 SAIR 95) Ware v O'Donnell Griffin (Televisions Services) Pty Ltd [1971] AR 18 HEARING DATES: 08/01/2000; 08/02/2000 DATE OF JUDGMENT: 12/13/2000

APPLICANT: Mr J Murphy of counsel Federated Clerks' Union of Australia, New South Wales Branch

RESPONDENTS: Mr A Joseph National Union of Workers, New South Wales Branch

Mr J DeCelis Employers' Federation of New South Wales Real Estate Employers' Federation of New South Wales New South Wales Road Transport Association

LEGAL REPRESENTATIVES: Ms N Rutherford Printing and Allied Trades Employers Association, New South Wales

Mr A Vernier Australian Business Industrial Catholic Commission for Employment Relations State Chamber of Commerce and Industry

Ms J Lowlett Australian Industry Group

JUDGMENT:

50 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CLERKS (STATE) CONCILIATION COMMITTEE Application by Federated Clerks' Union of Australia, New South Wales Branch to dissolve and re-establish industrial committee.

1 The Federated Clerks' Union of Australia, New South Wales Branch (the FCU/union) makes application pursuant to ss 198 and 200 of the Industrial Relations Act 1996 (the 1996 Act), for dissolution of the Clerks (State) Conciliation Committee and for the establishment of a Clerical and Administrative Employees (State) Industrial Committee. 2 The application as originally filed on 1 September 1999 sought two changes to the Industries and Callings of the proposed new Industrial Committee. 3 The first change was to include "canvassers (other than canvassers for the sale of goods)" within the coverage of the Committee. 4 The second change was to change an exception from coverage from "employees of banks and insurance offices" to "employees in banks and insurance offices". That second change was ultimately not pressed. 5 The application by FCU was opposed by the National Union of Workers, New South Wales Branch (the NUW) on whose behalf Mr A Joseph sought leave to intervene and appeared. (The intervention sought by the NUW was eventually not opposed and was formally granted.) 6 The Australian Medical Association (NSW) Limited formally advised the FCU on 15 September 1999 that the AMA had no objection to the application. 7 Employers opposing the FCU's application, and those appearing on their behalf are set out below: Mr J DeCelis for the Employers' Federation of New South Wales, the Real Estate Employers' Federation of New South Wales and the New South Wales Road Transport Association.

Ms N Rutherford for the Printing and Allied Trades Employers Association, New South Wales.

Ms J Lowlett for the Australian Industry Group with Mr M Aicken .

Mr A Vernier for Australian Business Industrial. (Mr Vernier later announced an appearance for the Catholic Commission for Employment Relations in addition to his appearance for the Australian Industry Group.) 8 The State Chamber of Commerce and Industry was represented at different times by either Ms Lowlett or Mr Vernier. 9 The position of those employers was that they did not oppose the dissolution of the present committee for the purpose of establishing a new committee with the new title. They opposed the extension to the new committee's coverage as proposed by the FCU. 10 Intervention was sought on 30 May 2000 by AMRO (Association of Market Research Organisations (AMRO) Inc). AMRO opposed the FCU's application, pointing out, amongst a number of other matters, that AMRO had had extensive dealings with the NUW since 1987 and had been party with the NUW to a number of Federal Certified Agreements and awards relating to the market research industry. 11 On 1 August 2000, the first day of the substantive hearing, Mr J Murphy of counsel on behalf of the FCU advised the Commission that, after discussions, the FCU and AMRO had reached agreement as to the exclusion of AMRO from the coverage of the proposed industrial committee. That exclusion would be in the following terms: employees of employers covered by the Market Research Industry - Consolidated Award 1996 made by the Australian Industrial Relations Commission or any subsequent Award or Certified Agreement covering employees who are engaged in any work or in relation to or in connection with the employers market research business to which the Association of Market Research Organisations (AMRO) Inc. or an AMRO member company is respondent. 12 Mr Ihlein on behalf of AMRO agreed to the proposed amendment to the FCU's application. He stated that that agreement was made without prejudice to the position of the other parties that went beyond market research. He then sought, and was granted leave to withdraw AMRO's application to intervene and also to withdraw from the proceedings. Witnesses 13 The FCU adduced evidence from four witnesses, all of whom were required for cross examination. All statements, other than that of Nicholas Lucchinelli, were tendered without objection. The removal of one paragraph from Mr Lucchinelli's statement removed the objection to it. Those witnesses are described below, together with the main points of their evidence. 14 Veronica Graham works in the Telesales Department of Bartter Enterprises at Marsden Park (formerly Steggles). She has worked in an office at that site for almost 11 years, previously having been in accounts, cashiering and customer complaints. In February 2000 she transferred to telesales. 15 Activities, other than those in the office, carried out by Bartters at the Marsden Park site include the weighbridge, freezer rooms and the deboning room. Product comes from Newcastle and Griffith. 16 Ms Graham described her work in telesales as follows: At the start of each day, I log onto my computer and take out the daily customer listing consisting of approximately 100 customers (per telesales worker) which are to be called that day. When calling each customer, I must ask the store switchboard for the department I require. Upon connection, I announce which company I am calling from and request their order for that day. The customer recites their order to me which I record on a history card. If by chance they are not yet ready to present me with their order, I must call them back at a later time.

Before I take the customer's order, I inform the customer of their specials for that week or, if I notice their orders are decreasing, I remind them that they have not been ordering the products in question and ask if they would like to try new products in replacement. I also ascertain whether or not they are still interested in the decreasing products. If I receive a request to call back at a later time I arrange to call back at a time which is suitable for both the customer and myself, even though all Telesales workers at Bartter Enterprises Marsden Park are only allocated three minutes to obtain, key and check the order of each customer. Unfortunately due to the time span allocated, this often results in workers falling behind schedule. Customers have a specified time which they are called. It upsets the balance greatly if Telesales workers fall behind due to customer callbacks.

Myself and other Telesales workers at Bartter Enterprises must perform regular maintenance on their customer's record history cards. This involves writing up new cards, altering existing cards where needed, highlighting the customers updated weekly specials, changing products codes when new specials come into effect for the week and adding new products to the customers product listing.

On occasion, I must also make extra outgoing calls to customers to inform them if there is a change in their specials or if they have a product which is on an extra special basis. If a customer has products on extra special, it is sometimes on a two day ordering basis. Occasionally when this happens, I must make an extra call to customers on an afternoon to obtain their orders for these products. If there is a problem with the delivery of the customer's order, for instance, if the product they have ordered is out of stock, I must call this customer and offer them an alternative product.

During the course of the day, I must also answer incoming calls, obtaining orders and dealing with customer inquiries. 17 Ms Graham expanded on her statement in oral evidence. There are about seventeen employees doing telesales: fifteen making daily calls, and two taking incoming calls. The telesales operation in Newcastle, a former Steggles site, closed in May 2000 and that operation came to Sydney. 18 Ms Graham said that the telesales employees push the stores to buy "specials". She does not solicit new customers. Her work is predominantly taking the sales calls and keying the orders, because the stores on her list buy the same item every day but the quantities vary. Specials tend to be offered at the end of the week, when stores take more product. 19 After Ms Graham has taken the order, the next steps are delivery and payment. Prices of the goods are negotiated with the stores by accounts executives in the National office. 20 Training was given by another telesales operator. The knowledge Ms Graham has of the various products was acquired mainly by experience. As new products come out, eg Christmas lines, the telesales people would attend a showing of those products. 21 Nicholas Lucchinelli, a university student gave evidence as to his employment as a tele-sales operator by two organisations. 22 In the first instance he was employed from 31 December 1999 for about two weeks by Hospitality Marketing Concepts. He was employed at a call centre located in Bondi Junction. There were four or five others employed there with him. The organisation had two rooms dedicated to telesales. 23 He was selling accommodation services at a discount for Grace Hotel, although the employer also sold such services for a number of other hotels. He described the work he was required to do as being the cold selling of accommodation services at the Grace Hotel, by way of telephoning random business telephone numbers throughout Sydney. 24 Training involved him absorbing on the first day various details about the Grace Hotel over some hours, being quizzed on those details and on the second day, developing a script he could use to try to sell the services and reading that script over the telephone to a supervisor. There was a "sort of text book" to teach the operators to be better sales people and each day there were promotional tapes to listen to. 25 If a customer chose to purchase, the witness filled out an information sheet with the necessary customer details, including credit card details (if that was to be the payment method). The form was passed to a supervisor who processed the application from that point. Mr Lucchinelli kept records of the outcome of the calls he made. 26 In the second week he was promoted to renewals of expired members, which involved persuading those who had already taken out membership of the "Grace Club" to renew their membership. He worked from 8.30 am to 5.30 pm with one hour lunch break. Remuneration comprised a $10 per hour retainer plus a bonus scheme which operated if more than six sales were made in a week. 27 In the second job, Mr Lucchinelli was based in Sydney when he worked for Merchant Sampler Advertising but the selling of the voucher booklets was for a specific area for a specific time eg Blue Mountains and Penrith, Gosford and Wollongong. 28 He described what he did for about two months as an employee of Merchant Sampler Advertising. He was required to engage in the cold selling of Merchant Sampling services; booklets of vouchers which provide consumers with a free good or service at a range of stores in their local area. This occurs through telephoning people at their home address and attempting to sell them a 'Merchant Sampler'. Training consisted of a two hour briefing in which it was explained that I was required to read the script provided and refer to certain aspects of the deal if the respondent asked about them. I was told to be courteous and polite.

After completing this two hour briefing I was then required to begin calling people from a list of numbers generated by a program called 'Australia on Disk'. The list contained the respondent's Street name, Suburb and Telephone Number. Reading from the prepared script, I would then attempt to sell the respondent a 'Merchant Sampler. If the respondent chose to purchase, I would then record their details, and either order a courier to their address to receive payment or obtain their credit card number so that a booklet of vouchers could be mailed to them. The details I recorded were then collected by a supervisor for processing.

The hours I worked in this job are either 9:00 am to 2:30 pm (with a half hour, unpaid break) or 4:00 pm to 9:00 pm (with a fifteen minute paid break). The employer requires at least three shifts to be done in a week. Remuneration is $12 an hour, rising by $1`for every consecutive week that an employee achieves more than .7 sales an hour on average. 29 He said that at the Burwood premises there were about thirty other employees in the room doing the same work as he did. He was employed as a casual, but was required to work at least three shifts a week. He found it more productive to work in the morning contacting households, rather than after 4 pm as was suggested by Mr DeCelis. 30 Tracey Pride was employed by Cumberland Newspaper Group as a Customer Accounts Officer and as a Classified Advertising Consultant from 17 October 1994 to 9 February 1998. 31 The Group has 26 papers. The office in which she worked was located at Parramatta. About 300 people were employed there in a number of departments, including accounts, finance, production and classifieds. About 70 people were employed in classifieds, that department being further broken down into 7 sections: customer service, trades, real estate, positions vacant, motors, adult services and features. 32 She personally worked closely with the accounts section because: The section that I work in in classifieds, a lot of my clients have to prepay their ads so they will send me the cheques. I then have to do a procedure of photocopying the cheques, taking them to accounts, making sure accounts put it to the right client, keeping the record on their cards and so forth, but me personally, yes. 33 Ms Pride had worked in two sections of the sales and service team, trades and adult services. Part of her job was to ring clients to get them to advertise in one or more papers (the latter often involving "up selling"). The Cumberland definition of "upsell" is if the size, price or paper change to an increase in the amount being paid by the customer. 34 In brief, her work involved her generating sales for the Group, keeping in touch with clients, servicing their requirements and keeping the requisite records. 35 Working in the sales and service team involved mainly having her own regular clients, keeping up to date records on those clients, canvassing for new business through opposition papers, the Yellow Pages, taking incoming calls if a new place opens, and enquiries. 36 One section of about 12 people in classifieds mainly do just cold calls. That is the features team, which has mainly to do with schools and pupils, school activities, general business as to what specials they have that week and like activities. 37 Andrew Taylor has been employed as a casual Telesales Agent by the Royal Blind Society since October 1995. He works four and one half days a week Monday to Friday, his hours being 8 am to 4 pm, except on Friday when he works 8 am to 2 pm. 38 In his witness statement, he said: 3. My duties as a Telesales Agent selling Art Union tickets are: a. Cold selling, using the "electronic white pages" as the date [sic] base, b. Selling to an established clientele which I have built up over time and c. Promoting the good name of Royal Blind Society and our services.

Selling method, our selling method is very low key, in fact it is an offer to buy rather than selling, as the Royal Blind Society has an outstanding reputation to maintain, any pressure is totally unacceptable.

Royal Blind Society has recently installed a computerized dialing system, which at the moment works very well for cold selling, making it possible, for me, to call 200 to 250 people, per day with a lot less effort than manually calling. As yet the system is unable to handle our established customer base, but this will be rectified over the next few months. In the meantime each customer must be manually called. As I have a customer base of several thousand, it takes several weeks to contact each customer. We run four Art Unions per year, many customers take a ticket each time and others take one a year. 39 In cross-examination, he described the computerised data system: A. There are 32 people working in shifts so there is only about, maximum of 15 people at any one time. We have ten computer terminals connected to a mainframe which does the dialling for us. There is tele computerised dialling system which is only useful for cold calling at the moment where it is set into a phone directory in different areas and it dials those people in that area. It is not very good on existing customers. At the moment we are trying to overcome that problem. 40 All telesales agents are now located in one room, whereas previously they used to be located throughout New South Wales. 41 He said that basically all the paperwork recording sales was done by the telesales agents. His department was very closely connected with the data entry department, in that his department's paper work went immediately to that department for processing. 42 The Royal Blind Society employs about 32 telesales agents in its Marketing department, the promotions and advertising department being located at the Society's head office at Enfield. Other departments of the Society located at that same address include data processing, a recording studio for talking books etc, teaching services, an equipment centre displaying vision aids, finance, library, service department for talking book machines, the IT department and rehabilitation services. 43 The Society's new telesales agents are remunerated on an hourly rate of $15, but when they established a clientele, that rate reduced to $10, and they are paid that reduced rate plus commission. 44 Mr Taylor, while he acknowledged that he sold art union tickets, rejected the proposition that he was involved in the selling of goods, saying that all he sold was himself and the Society's services. Submissions - FCU 45 The industrial committee system is an important aspect of the framework established under the 1996 Act. It is the successor system to the conciliation committee system which has served employers and employees and unions in this State well for many years. That system provides for the direct involvement of employer and employee representatives in the process of conciliation and arbitration under the guidance of the Commission. In many cases actual workers from the industry can bring to bear in the deliberations of particular committees, their experience as employees and that gives it an aspect which is quite different from other arbitral tribunals which sit sometimes without the benefit of having direct assistance of people engaged in the industry. 46 The 1996 Act encourages registered organisations to represent employees within their constitutional coverage. One means the Act provides to achieve that outcome is that of the industrial committee system. Further support is obtained from the objects of the Act, and in particular s 3(a) (d) and (e). 47 The following passage from the Report to the Minister for Industrial Relations in relation to his Reference pursuant to s 35(1)(o) of the Industrial Arbitration Act 1940 (the 1940 Act) to the Industrial Commission of New South Wales as to the Employment of Telephone Canvassers in New South Wales and other matters (TC Report) (Glynn J; 84/1714; 24/12/86) was stressed: The omission of the reference to "canvassers" from cl 33 of the Award and from the Industries and Callings of the Committee therefore has definite consequences. 48 It is those "definite consequences" that the FCU seeks to address in this application. There do appear to be large areas of telephone canvassing work presently not regulated by the Commission, and that is a situation that is contrary to the policy of the Act. 49 This application seeks to include in an appropriate industrial committee persons who at the present time either have no coverage at all, or perhaps on one view, are covered in a different committee which is now defunct. There is sufficient commonality of interests between these employees and others who, on any view, have been accepted as appropriately regulated as clerical employees to persuade the Commission that it is appropriate that canvassers, particularly telephone canvassers (other than for the sale of goods), be also so included in the jurisdiction of this committee which does regulate other clerical employees of organisations such as the Royal Blind Society. 50 There are within organisations areas called call centres where employees of an organisation operate on the telephone to either make or receive calls in relation to that organisation's business. It is a longstanding activity which has been industrially regulated for many years, as in the classified advertising section of newspapers, and in that industry at least their work has been in recent years regulated by awards made on application by the FCU. 51 Another area, and perhaps novel, is the growth of call centres as such which do not operate a call centre for their own business but contract out to other businesses to provide a service. That can be anything from contracting, for example, to the State Rail Authority to provide train timetable information, or cold canvassing people from the phone book to secure subscriptions, donations or sale of goods. It is to that area as well that this application is directed. 52 The way things stand at the moment there is no award that covers that employment. This application is properly seen as a step along the way to provide an appropriate award regulation for those employees and the arguments of the employers opposing the FCU in that endeavour must be seen in the context of an ultimate desire to leave that area award free. 53 The granting of this application does not mean the Clerical and Administrative Employees' (State) Award (the Clerical Award) will automatically apply to the employees sought to be covered. Before the Commission currently there is an application to vary the Clerical Award which would make it clear that that award covers telephone canvassers at grade 3. Nothing that can occur in these proceedings can prejudice the position of any party. All parties would, first of all, have all their rights protected in terms of putting submissions whether this award ought to be made and secondly what terms and conditions and obligations ought or ought not be contained in that award. That is a matter for another proceeding. 54 In relation to s 198 of the Act there has been some debate as to what is meant by "industry". The term itself, for the purpose of this legislation, is defined in s 7. It is not cut down by the adjective "particular" which appears in sub-s 1 of s 198. That qualification simply requires an identification of a particular industry for which the committee has been established. That can be, according to the definition of "industry", a particular part of an "industry" or a particular number of industries or a particular trade, manufacture, business, project or occupation or indeed group of occupations. The provision allows a great deal of flexibility in relation to the assignment of industries and callings of industrial committees. 55 The opposing submissions are simply wrong to say that in order to be correctly associated within the coverage of this committee, the employee needs to be employed in "any clerical capacity whatsoever". Following on from that submission it is said that canvassers are not and should not be grouped with persons who are so employed. That is not so, e.g. telephonists are so grouped (see The University of Adelaide Non-Academic Staff (Preliminary Issues) Case (46 SAIR 95) ). 56 It is clear that the FCU has constitutional coverage for canvassers (other than for the sale of goods) and no one submits otherwise. It is also clear there has been a substantial development, particularly in the area of telephone canvassing in recent years. 57 In relation to the FCU's Rules, eligibility rules have an ambulatory aspect to them, the appropriate approach being that to be found in Co-Operative Bulk Handling Ltd v Waterside Workers' Federation of Australia (1980 AILR Rpt 155); (1980) 49 FLR 355). 58 As industry develops the rules need to be construed to take into account such developments and that has been the case in relation to the question of clerical employment as well. The concept embodied in the term "canvasser" ought be approached in the same way. The Commission ought not be persuaded to form a view as to what a canvasser in 1938 did at the time the classification was inserted into the FCU's rules, and then look around, as it were, for that activity occurring today because it may well be that it does not occur at all. There are not many things in industry and commerce that are done exactly as they were in 1938. If the union rules were to be construed in such a way then many unions would be losing vast areas of their coverage as the industry develops. 59 It was ultimately held in the TC Report that "canvassers, (other than for the sale of goods)", were in a similar category as telephonists. They are not comprehended within any "clerical capacity". Even if telephone canvassers are not "engaged in a clerical capacity" in terms used in the Committee's industries and callings, the evidence demonstrates that their work has much in common with persons who are engaged in a clerical capacity and whose work is covered by awards of this Commission made on the application the FCU. 60 There is nothing in that Report that would support the proposition that simply because canvassers (other than for the sale of goods), and particularly telephone canvassers about whom evidence has been given in this case, cannot be said to be "engaged in any clerical capacity", it therefore follows that they must be excluded forever more and treated as some other species of employee. That is not an approach that the Commission adopted and, to the extent that reliance is placed on this Report by those opposing the application, it is misplaced. 61 Even if canvassers are not engaged in a clerical capacity, that does not mean that they are outside the clerical industry. The concept of "clerical industry" travels beyond the concept of "engaged in any clerical capacity". Clearly the clerical industry picks up people such as telephonists in the concept of "engaged in any clerical capacity". There is no valid reason why canvassers, particularly telephone canvassers (other than for the sale of goods), should not be recognised as coming within the scope of the clerical industry. The FCU accepts readily that the clerical industry intersects and overlaps with a number of other industries such as the manufacturing industry, other service industries, the hospitality industry, the retail industry and the like. That does not mean that those persons properly within the constitution covered by the FCU would not be regarded as part of the clerical industry and perhaps regarded as part of other industries as well. It does not mean that they ought not be entitled to the benefits of coming within the industries and callings of the committee established for the clerical industry, namely, the Clerical and Administrative (State) Industrial Committee. 62 When one reviews the evidence of the witnesses one can see that Mrs Graham's job at Bartter, on no view could be called that of a canvasser. The term "order clerk" would sit comfortably in relation to her employment. Nevertheless, there is much in common with what she does compared with others who might well be called telephone canvassers. Mrs Graham, who is very much a clerk, and is covered by the site agreement between the employer and the union underpinned by the Clerical Award, is called upon and does exercise some persuasive skills, some up-selling of skills in her work. To the extent that she is involved in sales, the sales have already been done and she maintains the orders by contacting the clients and updating the orders according to their particular requirements. She is not involved in marketing and she is not involved in canvassing, but there are points of similarity between her work and the work of others in the focus of the application. 63 The witness who was probably closer to the concept of a canvasser per se was Ms Pride who was actively involved in the selling of advertising space for the Cumberland Newspaper organisation, both in the sense of pursuing sales and responding to enquiries from potential advertisers. It is not in dispute that that area of employment has been for many years regulated by awards held by the Clerks' Union in the newspaper industry and, indeed, that area of work was the subject of a demarcation dispute that was dealt with by Cahill J. 64 Mr Lucchinelli worked in two organisations which were not part of any other organisation but were contracted to other organisations. He was involved in canvassing for sales. In one case, his role was to secure an agreement for money from people in the first instance to become involved in the scheme of obtaining discounted accommodation at the Grace hotel and using the same sort of persuasion techniques that other witnesses gave evidence about in seeking to secure that deal. He was not canvassing for the sale of goods. 65 The FCU made the same submission in relation to the second job that he gave evidence about. He was securing the sale of vouchers. Those vouchers have no intrinsic value at all; they are merely pieces of paper which signify an entitlement in the owner of those pieces of paper to approach a particular business concern and receive a free item. What may be received at that point could properly be described as goods. Mr Lucchinelli was not selling those, he was selling an entitlement to redeem by way of a voucher some goods. The primary purpose of this whole exercise was one of advertising the products of the businesses that became involved. 66 Mr Lucchinelli's vouchers are not goods in the sense understood in the union's rules. He was a canvasser, but not a canvasser for the sale of goods. The definition of "goods" in ABL's submissions supported the union's submissions as to Mr Lucchinelli's work for both organisations. 67 Mr Taylor who works for the Royal Blind Society, is also properly described as a canvasser. He canvasses the sale of art union tickets. On no view could that be described as canvassing for the sale of goods. The ticket itself has no intrinsic value. What he is selling is a chance to win a prize in an art union. He is also very much selling his organisation so he is canvassing but not for the sale of goods. He works closely with the data entry people, people who are performing clerical work. His work may not properly be described as clerical, although there are certain clerical aspects to it in the sense of maintaining records, transactions and the like but others around him, in data entry, accounts and the finance section, are clearly regulated by awards of this Commission. 68 There is no reason why the people involved in raising money via the art union are somehow treated differently from other clerical employees in the organisation. It is said it is inappropriate for their industrial fortunes to be determined by the same Industrial Committee. There is no basis and logic to that approach. Indeed, an award which takes an entirely contrary approach is The Royal New South Wales Institute for Deaf and Blind Children Employees (State) Award (290 IG 1049). It is not an award of the FCU; it is an award of the Health and Research Employees' Association and covers a variety of classifications of the work of that particular Institute. It is a single enterprise award. It deals with, amongst others, technical staff, domestic staff, residential care assistants, and clerical staff including clerk (fund raising) and clerical supervisor (fund raising). It is an example of regulation by way of award prescription of clerical employees involved not only in traditionally accepted clerical work but in fund raising. There is absolutely no logical basis to put that these sorts of activities are so antithetical to each other that they ought not to be considered by the one industrial committee or ultimately regulated by the one award. 69 Contrary to the submissions of those opposing the application, the term "canvasser" is capable of ascertainment. There is a lot of material already available to the Commission about canvassers and in particular telephone canvassers (see TC Report 1986). It is not suggested that one canvasser would do all of the things set out at pp18-19 of the TC Report but people who do do these things can properly be called "canvassers". It is sufficiently clear from that extract what canvassers do. Witnesses at that time included a telephone canvasser at one time employed selling art union tickets and the art union supervisor at the Royal Blind Society. 70 A call centre may contract out to organisations seeking to utilise its services for the purpose of selling goods and the argument might be put against the FCU to the extent that that is involved. The classification of "canvassers (other than for the sale of goods)" will not cover that work. 71 The system of industrial regulation, to the extent that attempts are made to draw lines between various areas of activity and various areas of work, is far from perfect and it is for that reason that there has been developed a principle of major substantive purpose. If it can be demonstrated that the selling of goods is only an aspect and not the predominant or major substantive purpose of the employment, then such activity would not take the person performing it beyond the scope of the words the FCU seeks to insert. The FCU would have to concede that a canvasser who was predominantly involved in selling goods could fall outside the scope of the words it seeks to insert. It may well be that a class approach would be needed. 72 On any proper view of the constitutional coverage of the NUW and the award coverage held by it, it cannot be said that the NUW has established proper entitlement to claim coverage in this area with this exception: on its face, the FCU's application was originally filed to cover the market research industry. That industry is regulated in the Federal jurisdiction, in part at least by an award to which the NUW is a party. Without conceding at all that people involved in the market research industry are outside the concept of canvassers (other than for the sale of goods), the FCU makes a concession on the basis that to the extent that that industry is currently regulated by Federal Awards, it does not wish to upset that arrangement and it is for that reason that it agreed to the exclusion going in. Submissions - NUW 73 The NUW opposed the application by the FCU. 74 Section 198(1) of the 1996 Act states that an Industrial Committee may be established to operate in relation to the whole or any part of a particular industry (including an occupation). 75 "Canvassers (other than for the sale of goods)" is a broad and uncertain phrase. However, to the extent that the intent of the phrase can be gleaned from the application and attendant witness statements, it is clear that the work to be covered is not in the clerical industry. Rather, it would fall within the market research industry, the advertising sales industry, etc. 76 The finding in the 'Telephone Canvassers Report' that such employees do not fall within current Industries and Callings of the Committee nor within the coverage of the Clerks (State) Award remains the correct one and further, that 'canvassers (other than for the sale of goods)' are not employed in any clerical capacity. 77 The NUW submits that a proper interpretation of s 198(1) of the Act, requires an Industrial Committee to relate to a 'particular industry'. As the employees in question do not work in the industry for which the Industrial Committee was established, the variation proposed is contrary to the Act. 78 The NUW submits there is a serious question to be tried in relation to the ASU's constitutional coverage and whether it permits coverage of "canvassers (other than for the sale of goods)", unhindered by any constraints. Such people are not employed "in any clerical capacity". 79 Historically the ASU's coverage of "persons employed as canvassers (other than for the sale of goods)" has been linked to "collectors and clear-out men" in the Time Payment Collectors (State) Award. The application before the Commission seeks to widen that coverage in a practical sense, quite dramatically to general industry. 80 The NUW has not only constitutional coverage, but also awards and agreements, covering many of the occupations that the applicant seeks to include. As a matter of principle, it would be inappropriate to allow the applicant to extend coverage through this Industrial Committee to employees already covered by the NUW's Constitution and by Awards and Agreements of both the AIRC and the Industrial Relations Commission of New South Wales. 81 Because the term "canvassers (other than for the sale of goods)" is broad and uncertain, no such variation should be allowed where the applicant cannot adequately describe which employees would thereby be covered. 82 In general the word "canvasser" etc has a very broad meaning and would lie not only with the NUW's coverage and membership but other organisations as well and go way beyond the coverage of the current clerical industrial committee. It is not sufficiently clear what the scope of the application is intended to be. 83 The application infringes on the coverage of the Commercial Travellers (State) Award which has the same scope as the Commercial Travellers (State) Industrial Committee. 84 Many of the people covered by the Commercial Travellers' Award/Industrial Committee, would fall within the description "canvassers (other than for the sale of goods)". For example, employees who solicit orders for the sale of theatre screen advertising space ( (b)(1) ) or technical services ((b)(7) ). 85 It is also important to note that there is an exclusion from coverage for those employees falling within the Clerks (State) Industrial Committee. Any extension in the form of the Application would unfairly restrict the scope and coverage of an existing committee. 86 The application before the Commission at present, if one looks both in the narrow and broad sense, essentially collides with the scope of the Commercial Travellers (State) Award. 87 The way that s 198(1) should be interpreted is as it might read. Reference to s 7 is not helpful in the context in the way in which industrial committees have been established under the current Act, the 1991 Act and the 1940 Act. The concept of a particular industry is analogous to the expectation of trade unions themselves being either industrial organisations or craft based organisations, such that some are viewed as industrial trade unions and represent essentially all award covered employees or occupation or craft based organisations. Industrial and industrial committees have tended to follow that particular line. 88 In short, canvassers, whether or not they be involved in the sale of goods, are not people "employed in any clerical capacity". The people who gave evidence have not been shown to be employed in the clerical industry or any clerical capacity. 89 Essentially the application seeks, by virtue of s 198, to include in the industrial committee's coverage people so far removed in the essential tasks they perform from people who are employed in a clerical capacity or clerical industry generally, that they do not fit in comfortably in this particular committee. 90 In relation to questions about s 198 there is no real explanation in the application or evidence that has been brought forward as to the extent the applicant sees this application taking coverage. All people work in an office and use a telephone and/or computer as their main source of communication with clients and customers; the application merely refers to "canvassers". To this extent that would go directly across people who sell door to door, people who sell by other means other than office bound. There is no restriction in that regard. 91 In relation to the evidence the primary tasks of the four witnesses, the major and substantial part of their work was not clerical work or work of a clerical nature or capacity. The major and substantial task that those individuals were involved with was selling. 92 The motivation behind the application seems, in a practical sense, to take the words "canvasser" other than canvassing for the sale of goods out of the area of time payment clerk for the State Award and put them into the general industry but without an explanation or qualification as to how that might operate, whether it has to be in any clerical capacity or generally. Submissions - Employers' Federation 93 The Employers' Federation is not opposed to the dissolution of the present committee, for the purpose of establishing a new committee with a new title, "Clerical and Administrative Employees (State) Industrial Committee". However, the Federation is opposed to the establishment of a committee with the constitutional coverage proposed in the application. 94 The applicant seeks to alter the constitution of the Clerks (State) Industrial Committee in a manner that is inconsistent with its constitutional rule. 95 The applicant's rules give rise to two areas of coverage: firstly, persons engaged in a clerical capacity (or included as being in a clerical capacity); and secondly, persons employed as canvassers (other than canvassers for the sale of goods) and/or collectors and clear-out men. That is, the term "canvassers (other than canvassers for the sale of goods)" is distinct from the term "engaged in a clerical capacity". 96 The applicant's constitution rule does not include canvassers as being engaged in a clerical capacity, but it seeks to have them so recognised in the Industrial Committee. 97 Those parts of the applicant's constitutional rule not contained within either the incidence of the Clerical and Administrative Employees (State) Award, or the Clerks (State) Industrial Committee, (namely canvassers, collectors and clear-out men), appear in the area, incidence and duration clause of the Time Payment Collectors (State) Award. Neither the Time Payment Collectors (State) Award nor the Time Payment Collectors (State) Conciliation Committee indicate that canvassers (other than canvassers for the sale of goods) are engaged in a clerical capacity. 98 The general grounds for alteration of the constitutional coverage of a committee have been the subject of much consideration: In re Crown Employees (General) Conciliation Committee [1955] AR 563 at 568, in In re Public Hospital Employees (State) and Hospital Employees (Metropolitan) Conciliation Committees [1960] AR 530 at 535, in In re Crown Employees (Hospitals and Homes) Conciliation Committee [1958] AR 360 at p 362, in In re Hospital Employees (Metropolitan) Conciliation Committee [1942] AR 50 at p 51. 99 Taken together, these decisions suggest a number of principles for consideration in an application to vary the constitution of a Committee, including: 1. Whether a practical inconvenience has arisen through the Committee being constituted in its present form. 2. Whether the alteration sought is the most convenient and proper course. 3. Besides the mere question of convenience, whether a special case has been made out by the applicant which warrants granting the alteration sought. 100 In considering whether it is appropriate and convenient to alter the constitution of a Committee, it is relevant in the circumstances for the Commission to consider whether canvassers (other than for the sale of goods) are engaged in a clerical capacity, and whether there is community of interest between canvassers and persons employed in a clerical capacity. 101 The observation made by Piper CJ in Federated Clerks Union of Australia v The Industrial Life Assurance Association (1942) 46 CAR 578 supports a finding that canvassers should be recognised separately from persons engaged in a clerical capacity. In that case, Piper CJ considered an objection from the Federated Clerks Union of Australia to the registration of the Industrial Life Assurance Agents Association ("the Association"). The Association claimed coverage of canvassers and/or collectors for industrial insurance. It would appear on a description (at pp 586-587) of the work performed by such canvassers that it accords generally with the work performed by canvassers and collectors under the Time Payment Collectors (State) Award. 102 The observations of the Court in Federated Clerks Union of Australia v The Industrial Life Assurance Association support the proposition that there is no nexus between clerks and canvassers, and that the industrial interests of the two groups are different. There is a general lack of a community of interest between persons employed in a clerical capacity and those employed as canvassers. 103 A brief analysis of the Time Payment Collectors (State) Award reinforces the view that there is no natural link between the conditions that prevail for persons engaged in a clerical capacity, and those engaged as canvassers (other than for the sale of goods), in this case, within the jurisdiction of the Time Payment Collectors (State) Conciliation Committee. For example, the Time Payment Collectors (State) Award provides conditions dealing with commission payments (at clause 4), and does not contain a clause setting ordinary hours of work. 104 There is a clear distinction between the work performed by a clerk in a clerical capacity, and the work performed by a canvasser in soliciting sales and investigating by enquiry. Certainly, on the definition in the TC Report (p 18), a canvasser does not perform work that could be considered "part of the general office administration system". Canvassing cannot be considered part of the general office administration system as suggested by the applicant. 105 In the alternative, if the Commission is of a mind to vary the constitution of the Committee, then it is contended that it should do so in a manner consistent with the applicant's constitutional rule, recognising the arrangement of the words in the rule and the distinct areas of coverage that consequently arise, namely "persons engaged in any clerical capacity …" and "persons employed as canvassers (other than canvassers for the sale of goods) and/or collectors and clear out men". It is contended that the applicant's constitutional rule would be reflected in a committee constituted in two sections, one being concerned with persons "employed in any clerical capacity whatsoever", the second with persons engaged as canvassers. Submissions - Australian Business Ltd and Australian Industry Group (ABL/AIG) 106 Australian Business Ltd (ABL) and Australian Industry Group (AIG) presented joint submissions referring to themselves in those submissions as "the Employer Organisations". That limitation applies to the use of the term in this part of the judgment. 107 The Employer Organisations oppose the insertion of the new term in the Industrial Committee but do not oppose the change of name. These submissions only deal with the proposed insertion of "canvassers (other than canvassers for the sale of goods)". 108 The current application appears to be an attempt by the FCU to disguise its intention to incorporate persons employed in a call centre environment as falling within the definition of a "telephone canvasser". 109 It is generally perceived that 'call centres' can be broken into two main subcategories: (a) companies who conduct part of their core or peripheral functions within a 'call centre' environment; (b) companies who conduct all of their operations within a 'call centre' environment which may span across a number of different occupations or industries. 110 Call centres that fall into either category may perform a variety of functions, including but not restricted to sales, customer service, membership or account enquiries and technical support. 111 It is further contended by the Employer Organisations that persons employed in a 'call centre' are not necessarily performing work that falls within the scope of the clerical industry. For example, market researchers are categorised as telephone canvassers (see page 87 of the Telephone Canvassers Report). In NUW v Elder Research & Ors (unreported, 27 February 1995, Print L9750) Lawson C described employers such as Roy Morgan Research Centre and AC Neilson (which engage interviewers in call centres) as being in "the market research industry". 112 The Employer Organisations submit that decisions of the Industrial Commission show that in order to establish or change an Industrial Committee, the following factors need to be considered: (a) Whether the employees have been grouped in the most natural and convenient manner. (b) Whether industry will fall into natural compartments.

(c) Whether the public interest and convenience of the parties will be served efficiently without undue expense. (d) Whether there is injustice to any interest.

(e) Whether the language used to describe the coverage of the Committee is so imprecise so as to lead to disputation.

(f) Whether it is convenient and proper to alter a long standing committee or whether there is a substantial and sufficient reason to vary an existing arrangement.

(g) The party seeking the variation carries the onus of proof. Submissions - PATEA 113 The FCU's Constitution rules are not the same as those of the industrial committee. That fact does not on its own, substantiate or necessitate a change to the rules of the industrial committee. 114 The words "canvassers (other than canvassers for the sale of goods)" are vague, unclear and uncertain. 115 Such work may be within the scope of the classification structure of the existing Clerical and Administrative (State) Award. 116 It is also feasible for commercial travellers to conduct telephone interviews as to their product or the quality of their product and that the commercial travellers would do so as a "major and substantial" part of their work. 117 The industries and callings of the clerical committee designate the major and substantial part of an employee's work as being clerical and administrative in nature. 118 The test to be applied in a case by case basis is one of "major and substantial" as being clerical in nature and content. The deciding factor as to whether the work of telesales employees or canvassers is in fact clerical and the selling of services, is incidental to the work of the employee, is properly and appropriately addressed by the application of the "major and substantial" principle, subject to what occurs in each workplace and work area of the individual employee. 119 The application is not substantiated by the witness statements and is not substantiated by the issue that the Constitution rule of the union is inconsistent with the coverage of the Industrial Committee. 120 In the alternative, if the wording as sought by the union is included into the coverage of the Industrial Committee, the test of "major and substantial" still applies irrespective of the title of the particular employee and their work situation or title as a "canvasser". 121 The application does not meet the requirements to overturn the view of Justice Glynn in the Telephone Canvassers Report and does not meet the requirements to vary the rules of the Industrial Committee. Consideration Legislation 122 Relevant provisions of the 1996 Act are as follows: 3 Objects

(a) to provide a framework for the conduct of industrial relations that is fair and just,

(b) to promote efficiency and productivity in the economy of the State,

(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,

(e) to facilitate appropriate regulation of employment through awards, enterprise agreements and other industrial instruments,

(f) to prevent and eliminate discrimination in the workplace and in particular to ensure equal remuneration for men and women doing work of equal or comparable value,

(g) to provide for the resolution of industrial disputes by conciliation and, if necessary, by arbitration in a prompt and fair manner and with a minimum of legal technicality,

(h) to encourage and facilitate co-operative workplace reform and equitable, innovative and productive workplace relations.

(a) any trade, manufacture, business, project or occupation in which persons work, or

(b) a part of an industry or a number of industries.

(1) The Commission constituted by a Presidential Member may, on application, establish an Industrial Committee to operate in relation to the whole or any part of a particular industry (including an occupation).

(2) An Industrial Committee is to consist of the following: (a) the member of the Commission to whom the matter to be dealt with by the Committee has been allocated, and (b) equal numbers, determined by the Commission, of representatives of employers and representatives of employees. The relevant member of the Commission is to be the Chairperson of the Committee when it deals with that matter.

(3) The members of an Industrial Committee (other than the Chairperson) are to be appointed by the Industrial Registrar following nomination as prescribed by the regulations.

(4) If the Industrial Registrar is satisfied that there has been a failure to nominate a person for appointment, the Industrial Registrar may appoint an appropriately qualified person to the Committee.

200 Duration and dissolution of Industrial Committees

(1) An Industrial Committee continues in existence for 3 years after it is established, unless it is sooner dissolved.

(2) The Commission constituted by a Presidential Member may, on application or on its own initiative, dissolve an Industrial Committee.

(3) The Commission constituted by a Presidential Member may extend the duration of an Industrial Committee for a period not exceeding 3 years at a time. The duration of the Committee may be extended even though the current period of the Committee has expired.

(4) If the duration of an Industrial Committee is extended, the existing members of the Committee (or the members of the Committee on its expiration) continue in office without the need for their re-appointment.

(5) Nothing in this section prevents an Industrial Committee that has been dissolved or that has expired from being re-established and new members appointed.

(6) Any matter pending before an Industrial Committee on its dissolution is taken to be pending before the member of the Commission constituting the dissolved Committee in connection with the matter.

FCU - Industrial Regulation 123 Rule 5 of the Constitution of the FCU's Registered Rules is as follows: The Union shall consist of all persons, male and female, engaged in any clerical capacity, including those engaged in the occupation of shorthand writers and typists and/or on calculating, billing and/or other machines designed to perform or assist in performing any clerical work whatsoever, and/or including telephonists and persons employed as canvassers (other than canvassers for the sale of goods) and/or collectors and clear-out men …". 124 The Industries and Callings covered by the Clerks (State) Conciliation Committee are set out below: All persons employed in any clerical capacity whatsoever, and without limiting the generality of the foregoing, shall include telephonists, receptionists, cashiers, messengers, copy boys, persons employed on machines designed to perform or assist in the performing of any clerical work whatsoever, in the State, excluding the County of Yancowinna …". 125 At present, "canvassers (other than for the sale of goods)" are covered by the Time Payment Collectors, &c (State) Award (215 IG 1607), an award made by the Time Payment Collectors, &c (State) Conciliation Committee on the application of the FCU. The term is not therein defined. 126 Clause 23, Area, Incidence and Duration of that Award provides that: This award rescinds and replaces the Time Payment Collectors (State) Award published 3rd November, 1976, and all variations thereof. It shall apply to time payment collectors, clear-out men and canvassers (other than for the sale of goods) within the jurisdiction of the Time Payment Collectors, &c. (State) Conciliation Committee. It shall take effect from the beginning of the first pay period to commence on or after 15th January, 1979, and shall remain in force thereafter until 12th March, 1980. 127 There is nothing before the Commission, and there was nothing before the Telephone Canvassers Inquiry, to shed light on what were the duties of other employees covered by the Time Payment Collectors (State) Award, those being persons employed as time payment collectors and clear-out men. The three classifications are already included in the FCU's Constitutional Rules. The FCU can already, and has, through the Time Payment Collectors, &c (State) Conciliation Committee, moved the Commission to make the Time Payment Collectors (State) Award. 128 The Time Payment Collectors (State) Conciliation Committee was not re-established after it was dissolved automatically as a result of the provisions of the Industrial Relations Act 1991. "Engaged in any clerical capacity" 129 Submissions opposing the FCU's application were directed to contentions that "canvassers (other than canvassers for the sale of goods)" were not "engaged in any clerical capacity" in accordance with the FCU's Constitutional Rules, and that that finding had already been made in the TC Report. 130 The matter referred to the Industrial Commission by the Minister for Industrial Relations on 7 August 1984 for determination was: Whether Telephone Canvassers employed in New South Wales fall within the Industries and Callings of the Clerks (State) Conciliation Committee and, in particular, Clause 33, Area, Incidence and Duration of the Clerks (State) Award as published in the Industrial Gazette of 16 June, 1982. 131 The answer to the question posed in the Terms of Reference was: Telephone canvassers employed in New South Wales, to the extent they have been identified and discussed in this Report, do not fall within the Industries and Callings of the Clerks (State) Conciliation Committee, and, in particular, do not fall within Clause 33, Area, Incidence and Duration of the Clerks (State) Award as published in the Industrial Gazette of 16 June, 1982. 132 The submissions of the parties appearing before the TC Inquiry, including those of the FCU, were directed to examining whether or not telephone canvassers were employed "in any clerical capacity whatsoever". 133 It was found that they were not. 134 That is not the basis on which the FCU makes this application. It accepts the findings of the TC Inquiry. 135 In the present proceedings, the FCU concedes that the canvassers' work is not work "in a clerical capacity" and puts its application on a different basis. In these proceedings, the FCU says that such canvassers either fall within the clerical industry or have a community of interest with it, propositions also opposed by the employers and the NUW. 136 I therefore put to one side submissions opposing the application which have been based on the assumption that the FCU's approach is to claim that canvassers are "engaged in any clerical capacity". Term "canvasser": vague and uncertain? 137 According to PATEA, the words "canvassers (other than canvassers for the sale of goods)" are vague, unclear and uncertain. The NUW contended that the phrase is broad and uncertain. 138 It was submitted by ABL/AIG that there was no clear definition of the term "canvassers (other than canvassers for the sale of goods)" as a whole. The exclusion is limited only to the act of selling goods as opposed to services. The term would create an inconvenience and potential for litigation especially in deciding whether a person is selling goods or services. This would contradict the first principle enunciated in In re Public Hospital Employees (State) and Hospital Employees (Metropolitan) Conciliation Committees (1960 AR 530 at 535 and 538). 139 Consideration of the definition of "telephone canvassers" occupied some ten pages of the TC Report, the bulk of that consideration going to the term "canvasser". The Commission (at p11) accepted the contention of Mr Goot of counsel, then appearing on behalf of AMRO, that the use of a telephone is irrelevant in determining whether someone is or is not a "canvasser". (It was, of course, relevant for the purposes of the Inquiry insofar as the Reference was limited to "telephone canvassers".) 140 In the TC Report, the Commission, as set out at pages 12 to 18, took into account definitions of "canvass", "canvasser", "solicit", "subscription" and "telemarketing" from a number of sources: the Macquarie and Concise Oxford dictionaries; decisions and legal reference works, definitions advanced by some of those appearing, and industry reference material. 141 Having done so, the Commission stated (TC Report pp18-19): In the light of the various definitions and descriptions set out above, and having considered the submissions made in respect of them, I am of the view that a "canvasser" is one who:

solicits subscriptions, from a district, group of people etc.

solicits opinions etc. from a district, group of people etc.

A "telephone canvasser" is one who undertakes the above activities by means of a telephone. 142 In relation to the areas examined by the Inquiry, it was said (at pp 19-20) that: The duties of persons, whose prime means of communication with the target group they set out to contact in the course of their work, was the telephone, were described, by means of both oral and documentary evidence, to the Inquiry.

(5) Market Research. There was some overlap between the various groups. Fund raising is carried out by some individual charities, but may be undertaken on their behalf by a professional telemarketing organisation.

A difference of opinion between AMRO and ADMA as to the meaning of marketing research and market research (one of which is concerned with exploring the market potential before a product is launched and the other which includes opinion research carried out after a product has been launched) does not affect my answer to the Reference. 143 In these proceedings, market research has been taken out of contention because of the agreement reached between the FCU and AMRO. The evidence adduced from the FCU's witnesses went to other areas. 144 The ABL/AIG submissions included a number of definitions of "goods", taken from statutes and other sources. However, I think that, for the purposes of this consideration it is sufficient to refer only to the definition to be found in the Macquarie Dictionary (3rd edition, 1997): 27. ( plural ) possessions, especially movable effects or personal chattels.

( plural ) articles of trade; wares; merchandise, especially that which is transported by land.

chattels, 1. movable articles of property …. . 145 Mr Taylor said that there was a training regime at the Society, but in his view the best training was "throwing people in the deep end". He was very reluctant to concede that there may be special skills required to sell himself to people over the telephone. He supposed he was a salesman in that he sold himself and the Society. Though he did not consider it as such, what Mr Taylor did in cold selling was generating leads that would eventually result in himself as a telesales agent building an established clientele for the sale of tickets, not of goods. 146 Ms Pride did not believe that she sold goods. The clients sold goods. She sold advertising space in various papers to clients. That was selling a service to those clients. As discussed later, Ms Pride's work is covered by the Clerical Employees in Metropolitan Newspapers (State) Award (311 IG 823). Ms Pride is not selling "goods". 147 Mr Lucchinelli did not consider that his work with either organisation by which he was employed involved the sale of goods. 148 That is a view I share. Mr Lucchinelli was not selling goods. In the first position, he was selling "VIP Privileges" obtainable from membership of the "Grace Club", which privileges involved the provision of accommodation, dining and other services at the Grace Hotel at discounted rates. That the package he sold included champagne and other such items did not mean that he was canvassing for the sale of goods. He was canvassing for the sale of services. 149 When Mr Lucchinelli was employed by Merchant Sampler Advertising selling booklets of vouchers, which vouchers provided consumers with a free good or service at stores in their local area, he was not selling those goods or those services. What Mr Lucchinelli was selling were 80 to 100 vouchers, which, if all had been taken up by a customer, would, on my understanding of the system, have benefited the customer to an amount up to $6,000. The price to the customer of each booklet was $79.95. He was selling the vouchers at a price which provided a profit to Merchant Sampler Advertising, based on arrangements made by employees of that company with individual stores for advertising within a particular area by means of the voucher system with its free offer from each such store or firm. 150 The Steggles Marsden Park Clerical Agreement 1999 covers employees of the telesales centre at that site, who would otherwise be employed under the Clerical and Administrative Employees (State) Award. The latter Award applies when the Agreement is silent. The Agreement has five grades as does the Award. Ms Graham said she was a Grade 3 under the Agreement as were other telesales employees, but advised that a couple of employees could be on a higher grade because they do duties higher than telesales. 151 Ms Graham's work was more in the nature of that categorised by Mr Murphy as an order clerk. The up-selling that she was encouraged to engage in does not, of itself, as has been noted in a number of decisions, take her outside the scope of the clerical awards or of the FCU. 152 To support its contention that canvassers are not persons "engaged in any clerical capacity", a contention not actually in issue in these proceedings, the Employers' Federation relied upon the decision of Piper CJ in Federated Clerks Union of Australia (NSW) v the Industrial Life Assurance Agents Association (the Life Assurance Agents Case) ( (1942) 46 CAR 576 at 586-587). In that case, the duties of canvassers as they were in 1941-42 were fully set out by Piper CJ in the appeal by the FCU against the registration of the respondent organisation, which sought to cover canvassers. The essence of his Honour's decision in rejecting the FCU's appeal, was that the work of canvassers and of clerks was of a substantially different nature and that canvassers could not properly be called "clerks" in the usual meaning of the term. However, on the particular point now being discussed, examination of the decision supports a finding that the term "canvasser" is not vague and uncertain. 153 It is submitted by ABL/AIG that a canvasser selling services would be included if the insertion sought by the FCU is granted. That is so. The only exclusion in the term is that of canvassing "for the sale of goods". 154 If confusion is created where the canvasser sells both goods and services, as it is submitted by ABL/AIG, or if there is dispute as to whether or not a person falls within the category of a "canvasser (other than for the sale of goods)" those matters can, in the case of dispute, be determined on the evidence presented to the Commission in any particular case. The necessity to have such a dispute determined does not, of itself, mean the term "canvasser" is, in the first instance, vague, unclear and uncertain as claimed by some of those opposing the FCU's application. 155 I find that the term "canvasser" is not vague or uncertain. What may be uncertain, perhaps even from day to day, is whether a canvasser is, or is not, canvassing for the sale of goods. That uncertainty is likely to occur in call centres which conduct canvassing operations under contracts made with a myriad of organisations. That difficulty is not sufficient to deny canvassers, who are not canvassing for the sale of goods, the opportunity of coverage within an industrial committee. Position of the NUW 156 The NUW submitted that at least two potential witnesses, Veronica Graham and Nicholas Lucchinelli, are actually engaged in the sale of goods and could not be covered by the variation in question. 157 I have already decided that Mr Lucchinelli had not been engaged in the sale of goods in either of the positions about which he gave evidence. 158 In relation to Ms Pride, it was said by the NUW that she was employed principally for the purpose of selling advertising space, and would be covered by the Advertising Sales Representative (State) Award (306 IG 1) and included in the current industries and callings of the Advertising Sales Representatives (State) Industrial Committee which covers people who are involved in soliciting orders for advertising space. 159 Mr Joseph relied on three decisions of the Australian Commission to support his submission that the work of Ms Pride was covered by the Advertising Sales Representatives (State) Award, an award of the NUW. 160 The industries and callings of the Advertising Sales Representatives (State) Industrial Committee is in the following terms: All persons in the State, excluding the County of Yancowinna, employed substantially away from the employer's place of business in soliciting orders for advertising space in newspapers, journals or periodicals, howsoever described;

Employees performing substantially clerical duties;

Employees within the jurisdiction of the following conciliation committees:

Advertising Sales Representatives (Sydney Daily Newspapers); Commercial Travellers (State). 161 The Industries and Callings of the Commercial Travellers (State) Industrial Committee include the following: All persons in the State, excluding the County of Yancowinna, employed away from the employer's place of business soliciting orders for articles, goods, wares, merchandise or materials or promoting sales or orders in addition to soliciting orders for articles, goods, ware, merchandise, or materials, including (but without limiting the generality of the foregoing) persons employed away from the employer's place of business:

(1) the sale of theatre screen advertising space; or

employees within the jurisdiction of the following Conciliation Committees:

… 162 The three decisions particularly relied upon by Mr Joseph, were: National Union of Workers v Elder Research ( Elder Research ) [Print L9750], ( Lawson C; 27/2/95).

Franklin Mint Pty Ltd v National Union of Workers ( Franklin Mint ) [Print S0959 and S1377] ( Whelan C; 15/11/99 and 29/11/99). National Union of Workers v Bendigo Advertiser and Independent Pty Ltd [Print M9365] ( Foggo C; 15/2/96). 163 The decisions in Franklin Mint and Elder Research were concerned with cl 5(D) of the (Federal) NUW's Eligibility Rules, (Rules that are, for all practical purposes, the same as those of the NUW (NSW) ), and in particular that part which is concerned with commercial travellers as persons "employed substantially away from the employer's place of business". 164 It was stated by Whelan C in Franklin Mint Pty Ltd v NUW [Print S1377] that: Changes in technology have also effected the industry of the "commercial traveller ". While employees in the industry still get in a motor vehicle and visit customers on a face to face basis there are now a whole range of ways they can move outside the employer's premises without leaving their seats. In my view, the essential element of the transactions they conduct is that the customer does not need to come to the seller in order to transact business. A broad interpretation of clause 5(D) encompasses employees employed to conduct business which is transacted substantially away from the employer's place of business. 165 That statement has distinct overtones of what was said by Sheldon J in In re Federated Clerks Union of Australia, NSW Branch v Australian Workers Union [1971 AR 419 at 421] in relation to the phrase "in any clerical capacity": The phrase, in my view, must be read against the background of the way industry has developed and is now conducted. Clerical work in industry has long since moved from the Dickensian era of the high stool and the quill pen. The voice and mind are now part of the clerical stock-in-trade … 166 In my view, in both the Franklin Mint and Elder Research Cases, the Australian Commission, when considering the term "substantially away from the employer's place of business" in relation to the coverage of commercial travellers, and stating that the phrase should not be interpreted narrowly, was adopting the ambulatory approach to constitutional rules of unions. In those cases, the coverage of the NUW was being protected in the light of changing circumstances. As far as the NUW is concerned, those decisions are defensive of its rules, not offensive, as against the rules of other industrial unions which may, in the light of those changed circumstances be seen to now have coverage of some employees to the detriment of the NUW. 167 In National Union of Workers v Bendigo Advertiser and Independent Pty Ltd [Print M9365] (15/2/96), Foggo C, on the application of the NUW, and not opposed by the ASU, made an award binding the respondent to observe the terms and conditions of the previous Victorian Clerical and Administrative Employees (Communications and Related Industries) (Interim) Award 1995, in relation to telemarketers and classified advertisement sellers employed by the newspaper, that earlier award having been obtained at the instance of the ASU. That award became inoperative by virtue of the operation of the Victorian Employer Relations Act. The making of the award by Foggo C would appear to have been peculiarly influenced by the circumstances consequent upon the then government's approach to industrial relations. I do not find it helpful in the context of the present proceedings. 168 In my view, the Advertising Sales Representatives Industrial Committee does not present the collision of industrial committees Mr Joseph, referring to the evidence of Ms Pride, said would result from the granting of this application. The persons covered by the above named committee are those "employed substantially away from the employer's place of business". Ms Pride was employed at her employer's office in Parramatta. She is covered by an award of this Commission, namely Clerical Employees in Metropolitan Newspapers (State) Award (311 IG 823) made by Schmidt J on 12 March 1998. In particular, cl 6, Classification structure and wages, provides in sub-cl (iv) that the indicative tasks of a Grade 3 position in that Award includes as to "technology: operate visual display terminals in any capacity, including canvassing for and/or accepting classified advertisements by telephone". 169 It is difficult to assess how valid is the assertion by the NUW that this application seeks to widen the ASU's coverage, "quite dramatically to general industry". The term "canvassers" sought by the FCU to be included in the coverage of this industrial committee is not as unrestricted as was claimed by the NUW. The limitation is in the additional phrase "(other than for the sale of goods)". 170 Disputes may arise. In that respect, the attention of the Commission was drawn by Mr Vernier to a decision of Bishop C in National Union of Workers, NSW Branch v Modern Roof Restorations (NSW) Pty Ltd [1999] NSWIR Comm 31 (unreported; IRC98/3549, 11/2/99). That decision concerned an unfair dismissal claim. 171 The nature of the work the dismissed employee carried out for Modern Roof Restorations was that essentially she went either door-to-door, or was located at a booth in a shopping centre, promoting the company's products and persuading homeowners to make an appointment with a sales representative who would then endeavour to secure a firm sale of a product. Although she was promoting sales, and the NUW was entitled to enrol her as a member, she was not "soliciting orders" for the company's products, in the terms of the coverage of the Commercial Travellers (State) Industrial Committee. The Commissioner found Ms Papworth was award free, but noted that the Union "is certainly entitled to seek to alter the industries and callings of the Committee to reflect its Constitution Rule". In other words, the NUW are in exactly the position the FCU seeks to remedy by this application. Community of Interest 172 It cannot be said that canvassers (other than for the sale of goods) do not have a community of interest with persons employed in a clerical capacity. In many cases over the years, differentiation between clerical/sales award coverage has been on the basis of the proportion of sales work to clerical work undertaken by particular employees. Examples of such cases include Ware v O'Donnell Griffin (Television Services) Pty Ltd [1971 AR 18]; In re Federated Clerks' Union of Australia, New South Wales Branch and Australian Workers Union (the Purchasing Officers Case) [1971 AR 419], and Summons to Show Cause by Commission on Own Initiative - Questions relating to performance of work by employees of John Fairfax & Sons Limited (the Fairfax Demarcation Case) (unreported; Cahill J; 77/114; 3/8/77). 173 As already noted the work of Ms Price canvassing for advertising was covered by the Clerical Employees in Metropolitan Newspapers (State) Award (311 IG 823). Two other awards, made on the application of the FCU, cover that same work in other newspapers. As its name indicates, the Sydney Morning Herald Classified Advertising Call Centre Enterprise Award (IRC2000/348; 9/2/00, not yet published) sets out terms and conditions for that newspaper's classified office. Amongst the changes from the previous award was a name change for some employees from "telephone sales adviser" to "advertising sales adviser". The MATP Clerical Award 1997 [Mirror and Telegraph Publications] (305 IG 252 at 255 and 256) includes classifications concerned with employees accepting and/or canvassing for classified/display advertising by telephone and inputting into the computer system improved copy, style, formats, borders and series using sales training to achieve maximum volume selling and responding to customer inquiries and needs. 174 I find that, contrary to the submissions of the employers, the evidence does reveal the existence of some community of interest between telephone canvassers and persons engaged in a clerical capacity. The evidence of the witnesses, including those already covered by awards of the FCU, shows not only an affinity with clerical employees in relation to location, eg the Blind Society, the Cumberland Newspaper Group, but also in record keeping. That is so even when they work in call centres. Definition of "industry" 175 Subsection (1) of s 198, Establishment of Industrial Committees, of the 1996 Act is in the following terms: (1) The Commission constituted by a Presidential Member may, on application, establish an Industrial Committee to operate in relation to the whole or any part of a particular industry (including an occupation). 176 "Industry" is defined in s 7 of the 1996 Act: In this Act, industry includes:

(a) any trade, manufacture, business, project or occupation in which persons work, or

(b) a part of an industry or a number of industries. Submissions 177 The NUW submitted that reference to s 7 was not helpful in the context of the way industrial committees have been established under the 1996 Act, the 1991 Act and the 1940 Act. 178 According to the Federation, the applicant submits that the term "industry" as used in s 198 of the Act takes its reference from the definition in s 7. The Federation proposes that s 198(1) serves to restrict the constitution of a Committee to a "particular industry (including an occupation)". If it was intended to rely on the broad definition of industry in s 7, as proposed by the applicant, it would not have been necessary to either include the word "particular" or the words in brackets following the term 'industry' , "(including an occupation)". However, the legislature has included in this instance those words, which would indicate an intention to limit the meaning of industry in this context, and to distinguish the reference in s 198(1) from the definition in s 7. Such an approach reinforces the community of interest that necessarily is required between, in this instance, persons engaged in a clerical capacity and persons engaged as canvassers (other than for the sale of goods), in order for the proposed constitution of the Committee to be both a convenient and proper course to follow. 179 Consequently, the application is contrary to s 198(1) of the Act. 180 In their submissions on this point, ABL and the AIG contended that in s 198(1) of the Act the phrase "particular industry" is not defined. It is submitted that s 198(1) of the Act provides that the widest jurisdiction upon which an Industrial Committee may operate is the whole of a particular industry. In accordance with the Macquarie Dictionary definition of "particular", "particular industry" means one or an individual or single industry. Accordingly the Commission has no jurisdiction to establish an Industrial Committee to operate in relation to "industries and callings", a phrase used in the plural context as opposed to the current singular requirements. 181 Section 198(1) of the Act contains the words "(including an occupation)". Section 7 refers to "occupation". If the Legislature intended the word "industry" in s 198(1) of the Act to be defined by s 7, it was superfluous to include a reference to the word "occupation" in s 198(1). 182 ABL and the AIG contend that the word "industry" in s 198(1) is used in its ordinary meaning instead of its defined meaning. The ordinary meaning of "industry" refers to the business carried on or engaged in by an employer. The focus is on what the employer does, that is, the nature of the business conducted by the employer and not the method of conducting the business, for example, by telephone. 183 In the alternative to the above submissions ABL and AIG contend that the word "industry" used in s 198(1) of the Act is restricted in meaning because of the adjective "particular" and, therefore, not as wide as the definition contained in s 7. 184 The critical test is not whether an occupation falls within the clerical industry but whether it falls within the scope of the Committee. It was stressed that the pivotal words in establishing the ambit of the Committee relate to employment "in any clerical capacity". 185 The phrase "industries and callings" originates from the Industrial Arbitration Act 1940 (NSW). Use of the phrase "industries and callings", as used in schedule A of the FCU's application, is outside the jurisdiction of the Commission. This phrase has not been carried forward in the Act and should not form part of an Industrial Committee established under the Act. 186 In relation to the amendment which the FCU seeks by inserting the term "canvassers (other than canvassers for the sale of goods)" into the operation of the Industrial Committee, there are a number of industries which include canvassers, eg the market research industry, the telemarketing industry, the direct marketing industry and the newspaper industry. If the amendment to the operation of the Industrial Committee was allowed, the Industrial Committee would operate beyond a "particular" industry. This would be in breach of s 198(1) of the Act. The Commission should not entertain an application which seeks to widen the operation of an Industrial Committee by the insertion of a term which traverses a number of industries. 187 Further, the occupations of market researchers and market research interviewer (both of which are canvassers) are covered by the NUW. It would not be in the public interest or convenient to include the occupations mentioned as falling within the Industrial Committee as proposed by the applicant. 188 According to PATEA, the FCU submission refers to the term "industry" as being sufficiently broad to cover occupations, or combinations of occupations as part of the clerical industry. This point is not denied. However, the work of the employee must be clerical in its "major and substantial" part. Consideration 189 Contrary to the submissions of the NUW, the definition of "industry" in s 7 is helpful in any consideration of the establishment of an industrial committee under s 198(1) of the 1996 Act. The enactment of the 1991 Act and the later 1996 Act resulted in major changes to the previous regime of conciliation committees. Any consideration of the relevance of previous legislation, and of cases decided in relation to it, and to the 1940 Act in particular, has to take those major changes into account. 190 In In re Public Hospital Employees (State) and Hospital Employees (Metropolitan) Conciliation Committees [1960 AR 530 at 535 and 538], relied upon by the employers, a Full Bench of the then Industrial Commission (Cook, McKeon and Beattie JJ) distilled the following principles from the many cases they examined: We consider that two well-established principles are applicable in this case. The first is this: Committees should be established in such a way that industry will fall into natural compartments to the intent that the public interest and convenience and that of the parties concerned will be served with efficiency, alacrity and an absence of undue expense, and without injustice to any interest, and so that employers and employees therein will be represented by personnel having a proper contact with and knowledge of the particular problems of the industry.

The second principle is this: An existing arrangement of established conciliation committees will not be altered except for substantial and sufficient reason, and inherent in that principle is the fact that a party moving for such an alteration carries the onus of proving such a reason. 191 In relation to that second principle, it must be said that the previously existing arrangement of established conciliation committees has been altered dramatically by the legislative fiat of the Industrial Relations Act 1991: each committee is dissolved automatically at the end of a period of three years. 192 Industry does not always fall into natural compartments. It seems to me that acceptance of that reality is to be found in the definition of "industry" as provided for in s 7. 193 Insofar as the term "particular" is concerned, the Macquarie Dictionary (2nd ed, 1991) sets out the following definition: particular, adj . 1. Pertaining to some one person, thing, group, class, occasion, etc., rather than to others or all; special, not general: one's particular interests . 2. Being a definite one, individual, or single, or considered separately: each particular item . 3. Distinguished or different from others or from the ordinary; noteworthy; marked; unusual;

… 194 The definition of "particular" in the Concise Oxford English Dictionary (6th ed, 1976) is: particular a. & n. 1. a. Relating to one as distinguished from others, special; P-Baptists, (Hist.) body holding doctrines of particular election and particular redemption (i.e. of only some of the human race); particular intention.

One considered apart from others, individual, ( this particular tax is no worse than others ; particular average).

… (Both definitions have been edited to remove obviously irrelevant meanings.) 195 Section 198(1) provides that the Commission may establish an Industrial Committee to operate in relation to the whole or any part of a particular industry (including an occupation) i.e., as defined by s 7, it may establish an Industrial Committee to operate in relation to the whole or any part of a "particular industry", "industry" being "any trade, manufacture, business, project or occupation in which persons work or a part of an industry or a number of industries". 196 In my view, taken in combination, as they must be in any construction of the Act, ss 7 and 198(1) indicate a legislative intent to ensure that any sector of "industry" as defined would not be deprived of coverage by an Industrial Committee. Indeed, an Industrial Committee, may be established for a group of employees as limited as those who are part only of an occupation. 197 Section 198(1) does not provide that a separate Industrial Committee needs to be established for the whole or any part of a "particular industry", (including an occupation) and I do not think that it bears such a narrow interpretation. The occupation in this case is that of "canvasser" with the even further restriction that it is of a canvasser "other than for the sale of goods". The resulting proliferation of such narrowly based industrial committees eg the Canvassers (other than Canvassers for the Sale of Goods) Industrial Committee, would certainly not be consonant with the Objects of the 1996 Act, and in particular of s 3(a). 198 A major orientation of the 1996 Act is to eliminate hindrances to a more efficient industrial relations system. Witness to that, in particular, are s 3(a) of the Objects of the Act and the s 19 award review process. A different approach, but one which I believe had the same intent, involved the changes made to the previous conciliation committee system by s 336 of the Industrial Relations Act 1991: each Conciliation Committee is dissolved 3 years after it is established (s 336(3) ) though any Conciliation Committee that is dissolved may be re-established (s 336(4) ). 199 Granting the FCU's claim is a logical step in increasing efficiency in the administration of this area, not only for the FCU itself, but also, for instance, for the Industrial Registry which will not have to or be required to maintain what are in effect duplicate and superfluous records for little practical utility. 200 There is absolutely no warrant for the proposition by the various employers that the definition of "industry" in s 7 should be read down by the use of the word "particular" in s 198(1). 201 Section 198 empowers a Presidential member of the Commission to establish an Industrial Committee. In relation to that grant of power, I apply the principle set out in the observation of Gaudron J in Knight v F.P. Special Assets Limited ([1992] 174 CLR 178 at 205): It is contrary to long-established principle and wholly inappropriate that the grant of power to a court (including the conferral of jurisdiction) should be construed as subject to a limitation not appearing in the words of that grant (19). Save for a qualification which I shall later mention, a grant of power should be construed in accordance with ordinary principles and, thus, the words used should be given their full meaning unless there is something to indicate to the contrary. Powers conferred on a court are powers which must be exercised judicially and in accordance with legal principle. This consideration leads to the qualification to which I earlier referred. The necessity for the power to be exercised judicially tends in favour of the most liberal construction, for it denies the validity of considerations which might limit a grant of power to some different body, including, for example, that the power might be exercised arbitrarily or capriciously or to work oppression or abuse. 202 There is no objection by any party to the establishment of a Clerical and Administrative Employees (State) Industrial Committee. The FCU's Rules include "persons employed as canvassers (other than canvassers for the sale of goods". I have already found that there exists some community of interest between clerical employees to be covered by that Committee and canvassers (other than canvassers for the sale of goods). It should also be noted that the area of telephone canvassers was one on behalf of which the FCU was active, until those activities were challenged, leading to the TC Inquiry. 203 I find that pursuant to s 198(1), the classification of canvassers (other than canvassers for the sale of goods) may be inserted within the coverage of the proposed Clerical and Administrative Employees (State) Industrial Committee. Industries and Callings 204 Issue was taken during the proceedings by ABL/AIG with the terminology "Industries and Callings" used in the FCU's application. It was said it came from s 18(1) of the 1940 Act, but had not been carried forward and the power of the Commission to establish a committee seemed to be more restricted under the 1996 act. 205 Whether or not the power of the Commission to establish a committee under the 1996 Act is more restricted than under previous legislation is not at this point relevant. There is consent to the establishment of a new committee. The Commission has been asked to expand its coverage from that of the previous committee. If that argument is directed to the interaction of s 7 and s 198 and the claim by ABL/AIG that a committee cannot operate as to plural "industries and callings" but only as to a singular industry, I have dealt with that argument and for the reasons set out earlier I have decided to grant the application both as to the establishment of the new committee and to the expansion of its coverage. 206 In any event, in relation to the issue of the use of the terminology "industries and callings", examination of the New South Wales Industrial Gazette shows that new industrial committees have been expressed to be established "for the industries and callings of" e.g. the Independent Schools and Colleges General Staff (State) Industrial Committee (318 IG 409). Without listing their names, and on a preliminary search only, the establishment of other industrial committees in the same terms are to be found at 317 IG 491, 494, 499, 502, 504 and 506. 207 If there is indeed some other issue as to the terms in which the coverage of an industrial committee is to be expressed, that issue can be fully argued at some appropriate time. Conclusions 208 In answer to a comment from the Bench as to the extent of evidence as to the work of canvassers, Mr Murphy conceded that the evidence only went to telephone canvassers and that it might be, in the alternative to the FCU's application, that the application be granted with the limitation "telephone" added. 209 I have considered that issue more fully and I have come to the conclusion that it would not be appropriate to make such a limitation. The evidence as to telephone canvassers showed that there was indeed a class of employee who could be described as "canvassers", no matter what means they used to undertake such canvassing. The evidence also showed that the canvassing undertaken by them was not related to the sale of goods. The Rules of the FCU include "canvassers (other than for the sale of goods)". 210 Cutting down the term "canvassers" to "telephone canvassers" could lead, in the future, as either new technological methods of canvassing are developed, or, upon examination, existing methods, uncontrovertibly not being canvassing for the sale of goods, being recognised as coming within the definition, in each such case, to this present litigation with its attendant expense and expenditure of time and money being in all likelihood be replicated. 211 I decide that it would not, in all the circumstances, be appropriate to introduce the limitation of "telephone" to the classification sought to be inserted by the FCU into the coverage of the new industrial committee. 212 As was advised by the FCU, the practical outcome of granting this application will be that the FCU will not seek the re-establishment of the Time Payment Collectors (State) Conciliation Committee and part of that Committee's coverage will be shifted to that of the Clerks (State) Conciliation Committee under whatever name it might be re-established. A further outcome probably will be, at some future time, after appropriate process, coverage of canvassers (other than for the sale of goods) being attained either through a new award or under some Part of the Clerical and Administrative Employees (State) Award. 213 Pursuant to s 200(2), the Commission, on the application by the FCU, dissolves the Clerks (State) Conciliation Committee. 214 Pursuant to s 198(1), the Commission establishes the Clerical and Administrative Employees (State) Industrial Committee as from 13 December 2000. The coverage of that Industrial Committee shall be the same as that contained in the Industries and Callings of the dissolved Committee, with the addition of "canvassers (other than canvassers for the sale of goods)" to that coverage. 215 The Commission also grants the addition of the exclusion to coverage of the Industrial Committee in the terms agreed to by the FCU and AMRO, as set out earlier (at par 11) of this judgment.

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Industrial Arbitration Act 1940(NSW)s 18

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