Discretionary considerations and conclusions
101 The application, whilst framed as an application under s 11 of the Act, essentially seeks a variation to a number of awards during their nominal term. The starting point for consideration of the merits of the application should, therefore, be a recognition of the limitation imposed on the Commission by s 17 of the Act; that is, pursuant to s 17(3)(c) the Commission may vary an award during its nominal term only if it considers there is a "substantial reason to do so" and that the variation "is not contrary to the public interest".
102 The touchstone in determining an application for a new award or a variation to an existing award, is whether the award provides "fair and reasonable conditions of employment for employees". As has been emphasised on numerous occasions, in making that assessment, there is a presumption that the conditions in an existing award are 'fair and reasonable'; the evidentiary onus of rebutting that presumption being, in the ordinary way, on the applicant: see Re Operational Ambulance Officers (State) Award (2001) 113 IR 384, Re Pastoral Industry (State) Award (2001) 104 IR 168, Public Hospital Nurses (State) Award (2002) 115 IR 183, Re Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award (2002) 116 IR 361.
103 Mr Shaw contended that the provision sought in the application was a fair and reasonable prescription as between employers and registered unions reflecting, as it did, an explicit example of an industrial matter in accordance with the Act. He contended that the claim confers an obvious benefit upon the individual employee which is not oppressive, unjust or unfairly burdensome to employers. Further, the evidence demonstrated there is an increasing proportion of the workforce who would belong to a union if given the choice, suggesting that there may be practical impediments to persons joining unions, such as the cost of membership.
104 These matters are of significance, on Mr Shaw's submission, as the Act expressly recognised that organisations of employees and employers are "fundamental to the purposes of the Act" and ought be encouraged. The Commission, would be acting in accordance with its "legislative charter" if it positively encouraged not only the formation of such bodies but their vibrant, lively and continued existence by facilitating ease of membership and the maximum migration of membership. We agree.
105 We have earlier referred to the strong collective theme which underlies the Act. Whilst Mr Shaw took us to a number of authorities dating to the earlier parts of last century in support of his construction of the Act: see Australian Tramway Employees Association and Brisbane Tramways Company Limited (1912) 6 CAR 35, Australian Builders Labourers Federation v Archer (1913) 7 CAR 210, Australian Ship and Wharf Workers Association v Waterside Workers' Federation of Australia (1919) 13 CAR 4, Federated Clothing Trades of the Commonwealth v Archer (1919) 13 CAR 647, Federated Clerks Union of Australia v Altona Petrochemical Company Pty Limited (1973) 150 CAR 387, it is not necessary to embark upon a detailed historical analysis to determine the object or purpose of the current statute.
106 Although we have had regard to those authorities and the dicta in them as to positively facilitating and encouraging registered organisations, or as to taking such aspects into account in the exercise of the tribunal's functions and jurisdiction, and readily recognise that observations upon the construction of statutes in similar form may be of assistance to our task, we would emphasise, in accordance with our observations on the appropriate construction of statutes, the Commission must relate the exercise of its jurisdiction to the statutory mandates and limitations in the Industrial Relations Act.
107 The objectives of the Act are contained within s 3 and in the circumstances of these proceedings, particular reference ought be drawn to the following provisions:
3. Objects
The objects of this Act are as follows:
(a) to provide a framework for the conduct of industrial relations that is fair and just,
…
(c) to promote participation in industrial relations by employees and employers at an enterprise or workplace level,
(d) to encourage participation in industrial relations by representative bodies of employees and employers and to encourage the responsible management and democratic control of those bodies,
(e) to facilitate appropriate regulation of employment through awards, enterprise agreements and other industrial instruments,
…
108 We approach the evidence in these proceedings with a view to determining whether the applicant has provided evidence which permits a conclusion to be drawn as to whether the application as framed would further the objects of the Act and, in particular, would foster the development and maintenance of registered organisations of employees.
109 The respondents contended that we should pay little regard to the applicant's statistical evidence; there was no evidence that the granting of the application would foster growth in union membership and there was no evidence that the application, if granted, would foster the responsible management of such organisations. Whilst we would agree that there is a limit to which statistical evidence of the kind received in these proceedings can be relied upon, and note that we would prefer to rest our decision on a more concrete evidential foundation, we do not consider that this evidence is of no moment or that it is irrelevant to the task at hand.
110 We would agree that declining union membership, should it be demonstrated, would be a complex social issue and that it would be difficult to suggest that the granting of this application would be the cure to all that ails the union movement. However, the respondents' submissions appeared to be prefaced, at least in part, on the idea that for the application to succeed it must, of itself, positively encourage the joining of a union by non-members or result in an improvement of the financial viability of a registered organisation. We do not consider that this is the only means by which the objects of the Act may be facilitated or fostered. We would accept the submission of the applicant that the statistical evidence is suggestive of some practical difficulty to persons joining a registered organisation. We consider that in granting this application, we may be providing a convenient or a more convenient means by which persons could choose to remit their membership fees to a registered organisation. Providing such assistance may remove one of the practical difficulties to persons joining a union and in so doing, the Commission would be acting consistently with the legislative charter to encouraging participation in industrial relations by representative registered organisations.
111 The evidence makes it plain that there is already widespread adoption of payroll deduction facilities by agreement (although such agreements are by no means universal), currently pertaining to employment relationships under the awards. The AWU indicated that 75 per cent of all its members paid their dues by way of deduction at the source. The LHMWU estimated that in the vicinity of 80 per cent of its members in the division relevant to this application remit membership fees by way of payroll deduction. The ETU indicated that 30 per cent of members remit dues by way of such a facility, although Mr Riordan considered that that figure would rise to somewhere in the vicinity of 80 per cent if more members were given the option.
112 The extent to which the evidence demonstrated the existence of these facilities belies the respondents' contention as to these arrangements being onerous on employers. We are satisfied that the facility would be of benefit both to individual employees in that it may be of assistance in managing their finances, and to unions themselves which on the evidence find these facilities provide greater membership retention and more efficient administration.