Aged Care Services Association of NSW and Others (C No. 20995 of 1993)

Various workers Health and welfare services

SENIOR DEPUTY PRESIDENT RIORDAN SYDNEY, 11 OCTOBER 1993

Industrial dispute - dispute finding - genuineness - claims properly authorised

• held that because claims are extravagant that they are not necessarily fanciful - held lack of verbal communication did not reduce the effect or validity of demands - substantial doubt that certain employers served should bound - certain employer excluded from finding for consideration at later date
• finding made in respect of other employers.

On 9 August 1993, I decided to make a record of finding in respect of the existence of an industrial dispute between the Australian Liquor, Hospitality and Miscellaneous Workers Union (ALHMWU) and a number of employers who are engaged in the provision of health and community care services in South Australia, New South Wales, Queensland, the Australian Capital Territory and the Northern Territory [Print K8752].

In that decision it was observed that none of the employers who had been served with the claims had acceded to them and that, apart from the employers in Western Australia, no employer opposed a finding that there was in existence

an industrial dispute, within the meaning of the Act. The employers in Western Australia made no such concession on that occasion and expressed opposition to any finding being made that such a dispute existed in Western Australia as a result of the relevant demands made on employers by the ALHMWU. The opposition to such a finding was described in my decision of 9 August 1993 as follows:

"There is strong objection, however, from the Municipal Association of Western Australia who appeared in these proceedings and the Chamber of Commerce and Industry of Western Australia, who did not appear but who made a written submission against the finding of a dispute in respect of employers in Western Australia.

The submission made on behalf of the Union that much of the objection is more appropriate to a consideration of an application which may be made pursuant to section 111(1)(g) is well founded. At the same time I am not satisfied that all of the necessary conditions for the finding of dispute have been satisfied in respect of Western Australia. It has been asserted by the Western Australian Municipal

Association that certain of the local government bodies served do not employ persons covered by the log of claims. It may be at some future time they will be employed and it would appear that at present persons employed by certain of the local government bodies perform the class of work covered by the log as part of, or a minor part of, other duties performed on behalf of the local government body concerned.

I am concerned, however, in respect of the submission made by the

Chamber of Commerce and Industry of Western Australia in the following terms:

'It is clear, however, following a meeting of organisations which were able to attend on Monday of this week that a significant

number of bodies named in the log are not employers of the staff sought to be covered. Some do not employ any staff and do not wish to be respondents to any award. Some local authorities have staff employed under a federal local government award to which the ALHMWU is not a party but which would cover some work at least contemplated by the log, and the Silver Chain Nursing Association has two current federal awards which apply to employees in the home care field.'

It seems to me that that assertion and the concerns expressed on behalf of the W.A. Municipal Association require further investigation. If any such emphasis be needed, it is stated now that the finding of the existence or otherwise of an alleged industrial dispute is not a mere formality; it is a matter to be taken quite seriously, because it forms the jurisdictional foundation on which any award will be made in settlement of the dispute. There is, however clearly, a dispute in existence between the Australian Liquor Hospital and Miscellaneous

Workers Union and several employers in South Australia, New South Wales, Queensland, the Australian Capital Territory and the Northern Territory." [Print K8752]

The record of finding of the existence of an industrial dispute was made at that time excluded Western Australia. A hearing was arranged for Monday, 14 September 1993, in Perth in order to allow for a further inquiry into the situation pertaining in Western Australia. This decision is the result of that hearing.

None of the arguments raised by the Western Australian employers should have come as a surprise to the ALHMWU because, in essential terms, the arguments which were raised or reasonably inferred in the proceedings which occurred on 9 August 1993, formed the substance of what was argued in Perth on 13 September 1993.

At the outset, it must be observed that there is an issue in this matter

in respect of union coverage. The Municipal and Clerical Services Union (ASU) and the Health Services Union of Australia (HSUA) were both represented and appeared in the proceedings by leave. Each of those organisations has an interest in the matter in that they are said to have membership and award coverage in respect of the staff employed by certain of the respondents to the log of claims served by the ALHMWU. It was said on behalf of the ASU that there were two deeds of agreement between the ALHMWU and the Federated Shire and Municipal Employees Union, which has amalgamated with the ASU, in respect of union coverage. It was also said that the HSUA and the ALHMWU had joint award coverage in respect of certain of the employers in Western Australia.

Apparently there has not yet been any proper consultation between these organisations in respect of this matter. Neither the ASU nor the HSUA is, however, opposed to the finding of the existence of a dispute in respect of the log of claims with which these proceedings are concerned. It has been agreed, however, that the ALHMWU should confer with the HSUA and the ASU with a view to resolving this aspect of the matter at an early date so as to avoid any disputation in the future.

The Chamber of Commerce and Industry of Western Australia (CCIWA) and the Western Australian Municipal Association (WAMA) remain opposed to a record of finding of an industrial dispute being made which would include employers in Western Australia. The principal grounds on which this opposition is based are as follows:

(a) the information at present available to the Commission, it is argued, would not permit such a finding to be made which identified the parties to the dispute;

(b) the alleged dispute is said to be not genuine;

(c) the real reason for the service of the log is not known but it is suggested that it may be related to a concern by the ALHMWU to protect the status given to it by the Australian Council of Trade

Unions as a "principal union" in the health and community care industry;

(d) it is alleged that there is no evidence before the Commission to show that the claims were made by ALHMWU with proper authorisation.

It was argued on behalf of CCIWA that a dispute is not genuine because the ALHMWU obviously did not know the identity the actual employers concerned. This was evidenced, so the argument goes, by the fact that certain of the respondents did not exist or were not the actual employers of any employees.

There is certainly insufficient information available in some instances

to decide with any certainty the correct identity of the employers of persons whose conditions of employment are sought to be regulated by this log of claims. This is surprising having regard to the fact, stated earlier herein, that notice was given of the argument to be advanced. There is, however, a statutory duty for the Commission to make a proper investigation of an assertion by a relevant organisation or an employer that an industrial dispute exists.

It is desirable to observe, at this stage, that the statutory definition of "industrial dispute" includes "a threatened, impending or probable dispute". It is well established that a log of claims may have application in respect of a future employment relationship. The fact that a respondent does not actually employ persons at the time of the service of the log does not mean that the particular respondent may not at some future time engage a person or persons to perform work of the type or class with which the log of claims is concerned. There needs to be, of course, some rational basis for an expectation that there will be created, at some future time, an employment relationship relevant to the demands that have been made.

According to the ALHMWU, those respondents who were served with its log of claims are all recipients of funding from the Commonwealth Government for the specific purpose of providing health and community care to eligible

persons. It was argued that this funding required the recipients to provide a specified service.

It must be observed, however, that such service could be provided by way of an arrangement with a third party. It was suggested, for example, that one

municipal Council may have been providing the required service on behalf of two other Councils as well as discharging its own duty in this regard. There is no certainty that such a situation is likely to continue in the future; nor is there any evidence to suggest any such probability. The difficulty to be faced is that there is substantial doubt about this important consideration in respect of some of the respondents to the demands in Western Australia.

As observed in my earlier decision in respect of this matter, and to which I referred earlier herein, "the finding of the existence or otherwise of an alleged industrial dispute is not a mere formality; it is a matter to be taken quite seriously, because it forms the jurisdictional foundation on which any award will be made in settlement of the dispute" (Print K8752). This requirement results in a need for particular care to be taken to ensure that

any such finding is an accurate reflection of the factual situation existing between the respective parties.

It must be conceded at once that there are potential difficulties in the way of deciding with complete accuracy and precision the correct name and title of every employer who is a respondent to a log of claims. This is not some new phenomena which is without precedent in the affairs of this Commission. Nor is it fatal to the proper enforcement of any award which may be made if the actual employer is not identified in the precise terms by use of the correct name, as long as there is a satisfactory identification.

Indeed, there have been cases where the employees engaged to perform work have had difficulty in ascertaining the name of the person or company which was their actual employer.

The following decisions represent examples of such difficulties faced by employees:

(a) Application by the Clothing and Allied Trades Union of Australia to vary the Clothing Trades Award 1982 re termination, change and redundancy [Print K7074].

(b) Croxfield Pty Ltd and Maurice Dixon and Others [Print H9315].

(c) The Australasian Meat Industry Employees Union and Meat and Allied Trades Federation of Australia and others [Print H0552]. I was not referred to any of these decisions during the proceedings by either party but on reflection and, in view of my decision in this matter, it is appropriate to refer to their existence although I hasten to add that their existence has played no part in this decision. Certain of the facts may be of some assistance to the parties in respect of any future negotiations and/or proceedings which may be necessary in relation to the finalisation of this matter. There are probably other examples but I have not researched the matter further.

There are three decisions to which I drew the attention of the parties, which I believe provide some guidance in respect of the question of the service of logs of claim on employers whose identity happened to be unclear at the time.

The first of these matters is a decision of a Full Bench of the Conciliation and Arbitration Commission, in Re Royal Australian Nursing Federation and The Private Hospitals' and Nursing Homes Association of Australia and others.

This decision was concerned with whether demands contained in a log of claims, which were addressed to "the proprietor" at each place of employment, was capable of creating an industrial dispute. This decision related to an appeal against an earlier finding by Cohen J that an industrial dispute was in existence as a result of the service of a log of claims and a failure by the

The Full Bench observed that it was necessary to determine whether the employers had been served with the relevant claims and whether proper service of that log of claims had been effected on the 1500 establishments which were described as private hospitals and nursing homes, the names of which had been ascertained by reference to the relevant edition of the "Hospital and Health Services Year Book".

The issue which was required to be decided in the particular aspect of that case was whether "the onus of proof in establishing an employer-employee relationship . . . " had been satisfied. This is a similar issue to one of the issues in the instant proceedings.

" . . . it was contended that our approach should be upon a strictly legal basis, identical with that which would be required in a prosecution for breach of an award. However, to adopt such a course would be to ignore the provisions of section 40 of the Act and thereby to forget that unless the procedures given by that section and section 41 of the Act were adopted, then the administrative processes of the Commission in cases such as the present would be well nigh impossible to perform and that in many instances the jurisdiction of the Commission would be improperly avoided. In the context of those sections and the practices of the Commission, the discretionary exercise undertaken by her Honour is not impeachable. Included in this conclusion is our approval of the 'Hospital and Health Services Year Book' as an acceptable source for purposes of service." (Coldham and Maddern JJ and Commissioner Turbet - [Print F8448 - 297 CAR 337 at 358]). It follows that service of the claims addressed to "the proprietor" at each of the relevant establishments was sufficient to effect service of the log of claims in that case.

If that decision provides appropriate guidance for the determination of this matter, and I hasten to add that I believe that it does, certain of the objections by the WA employers lose force.

The use of a list of those who receive Commonwealth funding for the provision of health and community services, on the basis of the Full Bench decision referred to above, is sufficient for the purpose of ascertaining the identity of employers in order to effect proper service of the log of claims. But this does not overcome completely the difficulty which arises in respect of the requirement, contained in section 101 of the Act, for the Commission "to determine the parties to the industrial disputes . . . ".

Some guidance is to be gained in respect of this question from a judgement of the High Court of Australia in Re Independent Schools' Staff Association (A.C.T.); Ex parte Hubert which contains the following passage:

" . . . Undoubtedly there was a dispute and the question was: who were the parties to it? If, in saying that the board was the employer, she intended to refer to the board as an unincorporated body, she was in error in law. If, however, she meant compendiously to refer to the members of the board for the time being, it appears that she was correct in fact. In any case, if she did fall into error, it was no more than an error committed in the course of exercising jurisdiction and an error which the Commission itself would have ample power to correct under s.24(1), if necessary with the aid of the additional powers conferred by s.41, especially pars (j), (l) and (o)." (Gibbs CJ, Mason and Dawson JJ - [(1986) 60 ALJR 458 at 460; 14 IR 10 at 12; and 65 ALR 673])

The third case, from which guidance is available, relates to an appeal from a decision of the Chief Industrial Magistrate (New South Wales). The report of Devane v. Gati and another contains a headnote which indicates when making an award it is competent for the Commission "to deal in the firm name with a partnership carrying on business in the firm name" and that "a proceeding in a State Court of Petty Sessions for breach of the award it is proper to name as defendants the individuals forming the partnership".

The judgement of the Court contains the following passage:

". . .It was quite competent for the Court of Conciliation and Arbitration to deal in the firm name with a partnership carrying on business in the firm name. The partners of the firm against which proceedings in the Court of Conciliation and Arbitration were so carried on would be bound by an order or award made naming the firm, that is assuming that in all other respects the court had jurisdiction to bind them by the order or award. It is, of course, true that a partnership is not a separate legal entity. But the firm name is nevertheless a description of the individuals who compose the partnership and it describes them for the purpose of the firm's business. The rule of the common law was that for the purpose of suits and proceedings in the ordinary courts of justice the parties must be named as individual persons and the firm name did not satisfy this requirement, although for many other purposes it is recognized as a collective description. But the rule does not govern the industrial proceedings of the Court of Conciliation and Arbitration. It was perfectly proper for the informant to name them individually in the informations and, indeed, that was the only manner in which they could regularly be prosecuted in the present proceedings." (Dixon CJ, Fullagar and Taylor JJ - [(1956) [1956] HCA 46; 95 CLR 174 at 175 and 176])

The guidance to be gained from the judgements of the High Court, in Devane and Gati, and Re I.T.F.; Ex parte Hubert, as well as the decision of the Full Bench of the Commission in respect of the log of claims served by the ANF on the 1500 private hospitals and nursing homes, leads me to the conclusion that it is proper to make a finding of the existence of an industrial dispute with the parties being identified by the names by which they are known and/or trade, even when the trading or business name of a particular enterprise or service is not the name of the actual employer.

It follows, therefore, that even if it be correct that the persons who are members, or eligible to be members, of the ALHMWU are employed by some other person, firm or body other than the one served with the demands contained in the log of claims, such person, firm or other person could be bound by the finding of the existence of an industrial dispute as long as there is a proper and relevant connection with the person on whom the log was served and the other required essential conditions apply, such as the existence or potential existence of an employer-employee relationship, the claims are made in accordance with the statutory requirements, have been authorisedly made and so on.

It was argued that there was no evidence available to establish that the claims had been properly authorised.

The letter of demand which accompanied the log of claims, however, was signed by the Joint National Secretary of the ALHMWU. Rule 14(b)(ii) of the registered rules of the ALHMWU contains a provision that "a Joint National Secretary shall have the general control and conduct of the business of the Union". This provision, it was argued, provides proper authority for the service of the log of claims in respect of this matter.

Rule 4 of the registered rules, a copy of which was tendered during the proceedings and a certified copy supplied later, describes and specifies the class of persons, employed in the relevant industries, who are eligible to become members of the ALHMWU. Those specified in the relevant conditions of eligibility include a person who is employed as a " . . . janitor, handyperson, . . . cleaners, cleaning and pollution control . . . ". Such persons, it was claimed, are those in respect of whom these claims are concerned.

Having considered the rules, including of eligibility of certain classes of employees to become members of the ALHMWU, and the powers and duties of the Joint National Secretary of that organisation, I am satisfied that the claims made have been properly authorised and that the ALHMWU is entitled to make the claims against the respondent employers. I need, therefore, to take this aspect of the matter no further. It was argued that the claims by ALHMWU are fanciful and do not give rise to an industrial dispute. In respect of this argument reliance is placed on the judgements contained in the SPSF Case [1993] HCA 30; (113 ALR 385).

In the proper consideration of this argument it is necessary to keep in mind the distinction between claims which are properly to be seen as "plainly fanciful" and those which are more correctly described as extravagant. This is a most important distinction upon which the jurisdiction of the Commission to deal with some matters might well depend.

It is becoming a feature of the argument presented on behalf of employers, who resist being found to be parties to an industrial dispute, to argue that the alleged industrial dispute concerned is not genuine and to cite the judgements of the Justices of the High Court in the SPSF Case as authority for their argument. There is no reason why they should not do so, if this appears to them to be in their interest. Nothing I state in this decision is intended to be a criticism in this regard. But I do wish to make it clear that I see no merit in repeating the same arguments in each decision and for me to repeat the detailed reasons for my conclusion that the dispute is genuine, if that be my finding in the particular case, based on the reasoning in the SPSF case.

Although in the instant matter the argument about the alleged lack of genuineness of the claims is relied upon only by the respondents in Western Australia this fact has in no way influenced my decision. I have carefully considered each of the arguments advanced on behalf of the Western Australian employers prior to reaching my decision.

In two earlier decisions I have considered the guidance contained in the SPSF Case. I stand by the conclusions I reached in this regard for the reasons given in those decisions [Prints K8994 and K9423]. There is no need to repeat them in this decision and I do not do so.

On the basis of the material and argument advanced in these proceedings it is not possible to find that the claims by the ALHMWU are "plainly fanciful" although such demands contained in the log of claims certainly appear to be extravagant which, of course, is an entirely different matter as explained in the SPSF Case [1993] HCA 30; [113 ALR 385].

Certain of the respondents to the log of claims, who oppose a finding that they are in dispute with the ALHMWU, rely on the absence of any consultation about the issues included in the demands. There is also opposition to such a finding based on an assertion that the ALHMWU does not have the employees concerned as members.

Neither of these grounds of opposition has merit or validity.

There is no duty on the ALHMWU to do more than to communicate its demands to the respondents and allow reasonable time for a response. It has chosen to communicate its demands in writing, which it is entitled to do. The apparent fact that there has been no verbal communication does not reduce the effect or validity of the demands. It is well established that a registered organisation may make demands on employers in respect of persons who may in the future become its members or to

protect its members against unfair competition. In any event there is no evidence that the assertion of lack of membership of the ALHMWU is well founded. It is no more than an assertion based on certain conversations said to have occurred between some employees and their supervisors who were not called to give evidence.

It must be stated, however, that lack of membership in one organisation and membership in another registered organisation in a particular establishment might in some circumstances be grounds to exercise the discretion contained in section 111(1)(g) of the Act. But that is not the matter being considered at this stage.

There is a potential area of disputation in respect of a proper demarcation between the ALHMWU and the ASU about union membership. There has in the past been such a potential and this has been avoided by the negotiation of an agreement between the competing unions. Discussion is to occur between the ASU and ALHMWU with the object of ascertaining the prospect of those previous arrangements being re-activated or maintained. The result of this discussion may be a factor to be taken into account when any award is to be made.

There is also a potential demarcation dispute between ALHMWU and the HSUA but I expect this issue to be resolved by proper discussion between these organisations.

There is a substantial doubt in my mind, based on the limited material and lack of any direct evidence, that certain of those served are employers or potential employers of members or persons eligible to be members of the ALHMWU. In these circumstances, the proper course to follow is to reserve the question of whether those persons or bodies are parties to the dispute for further

The respondents in Western Australia to be excluded from a finding of the existence of a dispute at this stage are Shire of Wickepin - HACC Services Co-ordination, Shire of Beverley - HACC Services Co-ordination, Perenjori Shire Council and the Shire of Denmark - Demcare, but the Shire of Denmark is a party to the dispute. It is also open to doubt if the Shires of York, Gooralling, Toodyay and Broome and the City of Canning South Care Home Services, SCWA Night Service, City of Wanneroo Home Support Service, and City of Wanneroo Community Options should be excluded, at this stage. But Harvey Health and Community Services Group Incorporated and the Roehburn Workers Aboriginal Co-operation are parties to the dispute and will be included as parties in the record of finding to be made.

It is to be emphasised that this is not to be taken as a final finding in respect of the parties to the industrial dispute but it represents a deferral of the question to permit further consideration of the matter. A further hearing in Perth in respect of this matter will occur in the near future. Having regard to all of the facts and circumstances of this matter I have decided that the record of finding of the existence of an industrial dispute which exists should be varied so as to record the existence of that dispute in Western Australia and to include the employers who have been served with the log of claims with the exceptions cited herein.

The matter will be listed for further hearing at 9.00 a.m. on Monday, 18 October 1993 in Perth in order to consider further the list of respondent employers in that State who are parties to the industrial dispute.