Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary

Legislation

1. The demarcation applications are made pursuant to s 294 of the Act. It is in the following terms: 294 Determination of demarcation questions concerning interests of industrial organisations of employees (1) The Commission may, by its order, determine any question as to the demarcation of the industrial interests of industrial organisations of employees (demarcation order). (2) A demarcation order may be made on the Commission's own initiative or on application by an industrial organisation, an employer or a State peak council. (3) The Commission must not make a demarcation order unless it is satisfied that: (a) the conduct, or threatened conduct, of an organisation to which the order would relate, or of an officer, employee or member of the organisation, is preventing, obstructing or restricting the performance of work, or (b) the consequences referred to in paragraph (a) have ceased, but are likely to recur or are imminent, as a result of such conduct or threatened conduct. (4) In considering whether to make a demarcation order, the Commission must have regard to the wishes of the employees who are affected by the dispute and, if the Commission considers it appropriate, is also to have regard to the following: (a) the effect of any order on the operations of an employer who is a party to the dispute or who is a member of an organisation that is a party to the dispute, (b) any agreement or understanding of which the Commission becomes aware that deals with the right of an industrial organisation of employees to represent under this Act the industrial interests of a particular class or group of employees, (c) the consequences of not making an order for any employer, employees or organisation involved in the dispute, (d) any other order made by the Commission in relation to another demarcation dispute involving the organisation to which the demarcation order would relate that the Commission considers to be relevant.
2. The orders which may be made are identified in the following section which provides: 295 Demarcation orders - coverage of industrial organisations of employees (1) The demarcation orders that the Commission may make include (but are not limited to) any one or more of the following orders: (a) an order that an industrial organisation of employees is to have the right, to the exclusion of another such organisation or other such organisations, to represent under this Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation, (b) an order that an industrial organisation of employees that does not have the right to represent under this Act the industrial interests of a particular class or group of employees is to have that right, (c) an order that an industrial organisation of employees is not to have the right to represent under this Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation. (2) When the Commission makes a demarcation order, the Commission may, after giving each industrial organisation and each State peak council concerned an opportunity to be heard, require the rules of the organisation to be altered in accordance with the demarcation order or a subsequent order of the Commission so as to give effect to the demarcation order. (3) Such a requirement has effect as follows: (a) In the case of a State organisation incorporated under this Act, the rules of the organisation are altered as specified in the order by force of this section. (b) In any other case, the Commission may cancel the registration of the organisation under Part 3 if the organisation does not alter its rules as specified in the order within the time allowed by the order.
3. There was no issue between the union parties that the circumstances identified in s 294(3) applied in this case. The first respondent did contend that the requirements of s 294(3) were jurisdictional and had not been addressed in the evidence. The applicant countered that the evidence of Mr Marsden and the petitions signed by staff and annexed to his statement were evidence of threatened industrial action. There was no cross-examination of Mr Marsden to suggest that the threats of industrial action recorded in the petitions were not real or would not, if implemented involve a disruption to or restrict the performance of work. I accept that evidence.
4. The second argument advanced was that the bans related to the award applications and not the demarcation order. The word "relate" in s 294(3)(b) is a word of broad import. I have no doubt the orders sought relate to the PSA and the threatened action is action by the organisation and/or its members.
5. I am satisfied that the "jurisdictional" fact is established.
6. As Mr Crawford submitted, the effect of s 294(4) is to identify as a mandatory consideration the wishes of affected employees. The subsection also identifies matters which may be taken into account. Relevantly, in this case: 1. The effect on the employer of making an order; 2. The consequences for employees, the employer or the organisations of not making an order; and 3. Any agreement or understanding relating to the industrial coverage of the organisations.
7. It will become apparent that there exists an agreement or understanding relating to the rights of the AWU to represent the industrial interests of persons employed in KNP. The evidence as to the nature and extent of that agreement or understanding will be dealt with first. I will then turn to the other considerations.

Background

1. The coverage of KNP employees has a long and complex history which it is convenient to traverse at least briefly. It is recorded in the written submissions filed on behalf of the PSA in the following terms: "5. The PSA has a long and continuous history of representing Field Officers working for the OEH and its predecessors - since before the creation of Kosciusko [State Park] in 1944. And it has maintained exclusive coverage of Field Officers working in Kosciusko since the enactment of the Kosciusko State Park Act 1944. 6. By an agreement and undertaking which enabled the AWU to enter the industrial system in New South Wales in 1979, the AWU expressly and unequivocally acknowledged the PSA's exclusive coverage of Field Officers working in Kosciusko (the AWU demarcation undertaking). 7. Since 1979, the AWU demarcation undertaking has been observed by means of a continuous succession of industrial instruments, largely maintained by the PSA, which have applied exclusively to Field Officers employed in Kosciusko. 8. This Commission has recognised the importance of carefully maintaining the AWU demarcation undertaking as an essential part of the administration of union registration in this State: Public Service Association (NSW) v Australian Workers Union (NSW) (1990) 36 IR 221 at 223. 9. The AWU demarcation undertaking was reaffirmed by the AWU and the PSA in settlement of demarcation dispute proceedings before the Commission in 2006. 10. The relief sought by the PSA in these proceedings is directed to the maintenance of the AWU demarcation undertaking. It is also consistent with the industrial interests and wishes of its members, and with the distinctive nature and status of Kosciusko within the operations of the OEH."
2. In the decision of Public Service Association (NSW) v Australian Workers Union (NSW) (1990) 36 IR 221 ("Toll Collectors Case"), to which reference is made in the summary above, Bauer J determined an application made by the PSA for demarcation orders against the AWU concerning toll collectors employed on the Harbour Bridge and at Waterfall. His Honour found [4] that the PSA had constitutional coverage of the employees and the AWU did not. He then went on to consider whether a demarcation order should be made. There are parallels in the present case. Bauer J said: The PSA, it was said, first obtained an award for the toll collectors on the bridge in 1934. Until 1988 the bridge toll collectors, embracing toll collectors at the Berowra, Waterfall and Harbour Bridge tollways, were members of the PSA. During 1987 dissention arose between the toll collectors as a group and the PSA as a union representing toll collectors. Consequently, during May 1988 the toll collectors resigned or purported to resign from the PSA and took up "membership" with the AWU. That position pertains up to the date of this judgment. A matter relied upon by the PSA, and drawing severe criticism from that union of the AWU, was the breach of certain undertakings by the AWU in relation to encroachment on PSA membership area. Such undertaking arose from the registration proceedings in which the AWU was seeking reregistration. The form of the undertaking appears as follows: "The Australian Workers' Union and the Public Service Association of New South Wales hereby mutually agree: 1 That each recognises and acknowledges the areas of industrial coverage maintained by the other and the date hereof, whether by award, agreement or otherwise. 2 That with the intention that the status quo between them should be maintained each will not encroach upon the areas of industrial coverage maintained by the other as aforesaid. Without in any way derogating from the generality of the foregoing, the Australian Workers' Union expressly acknowledges the Public Service Association's exclusive coverage of employees coming within the ambit of the Crown Employees (Rangers, National Parks and Wildlife Service) Award and the Crown Employees (Kosciusko National Park Wages Field Staff) Award, and the Public Service Association of New South Wales expressly acknowledges the exclusive coverage of the Australian Workers' Union of Employees coming within the ambit of the Crown Employees (Wages Field Staff - National Parks and Wildlife Service) Award." Mr Ecob, the secretary of the Australian Workers' Union, New South Wales Branch, gave evidence in the proceedings and, when challenged over the issue of the undertaking, his answer was that the union had been approached by the toll collectors and that because no active steps had been taken by the union the AWU did not see itself in breach of the undertaking. It seems ineluctable from the form of the wording used in the undertaking that the AWU in enrolling as members the toll collectors is in breach of that undertaking. A submission was made, however, by Mr Hodgkinson, counsel for the AWU, that the AWU could not be held blameworthy because it did not seek nor abet nor facilitate the movement from the PSA to the AWU. The further submission was made that it was not until the toll collectors became "un-unionised" that the union accepted them as members and therefore it was not in breach of the agreement. Whether or not the AWU encouraged or discouraged the movement from the PSA to the AWU, the fact is that without constitutional coverage, and in the face of undertakings which it gave to the PSA, the AWU purported to enrol toll collectors. A more prudent and forthright approach by the AWU would have been to consult with the PSA and attempt to resolve both the circumstances of the undertaking and to determine the constitutional coverage prior to enrolling the dissident members. In the complex area of union coverage, the importance of agreements being carefully maintained is manifest. Change in union rules would be almost impossible to effect were it not for the widespread practice of agreement between unions which is an essential part of the administration of union registration. (Emphasis added)

Award coverage

1. The PSA and the AWU each have an award applying to employees of the NPWS. Each award seeks to exclude from its coverage employees covered by the other award. I have no doubt that the exclusions are intended to give effect to the undertakings given in 1979. [5]
2. Difficulties begin to emerge however when the mutual exclusions of those awards are considered. The exclusions purport that each award does not apply to employees covered by the other award. However the reader is left with a conundrum as to which employees are in fact covered by one award and not the other. It is necessary to look more closely at the relevant clauses of each award to resolve the issue.
3. The PSA is a party to an award entitled the Crown Employees (Office of Environment and Heritage - National Parks and Wildlife Service) Conditions of Employment Award 2015 (the "PSA Award"). It is the latest in a succession of industrial instruments the history of which is detailed in the evidence of Mr Stewart Calder-Little, ("Mr Little" as he said in evidence he was happy to be called) General Secretary of the PSA. It is unnecessary to detail that history as it is not in dispute. The Area, Incidence and Duration clause is cl 46. So far as relevant it provides: 46.1 This Award will apply to employees and casual employees in classifications covered by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales, employed within the National Parks and Wildlife Service of the Office of Environment and Heritage. 46.2 This Award will not apply to employees: (i) transferred to the Department under Administrative Order of 2 April 2007 and subsequent Orders which established the Department of Environment and Climate Change effective 27 April 2007; or (ii) employed in the Senior Executive Service (SES); or (iii) employed in the Botanic Gardens Trust; or (iv) whose current conditions and entitlements are determined by the Crown Employees (Office of Environment and Heritage - Parks and Wildlife Group) Field Officers and Skilled Trades Salaries and Conditions 2015 Award or any successor instrument to that Award; or (v) whose current conditions and entitlements are determined by the Flight Officers Enterprise Agreement 2014 or any successor instrument to that Agreement. (Emphasis added) So cl 46(2)(iv) purports to exclude employees whose conditions are covered by the named AWU award or a successor award. The logical next step is to identify the employees whose conditions of employment are determined by the AWU award and so identify those excluded from the PSA Award.
4. At the time of hearing the AWU was party to a successor award to that identified in cl 46.2(iv). That was an award made in 2018 which, because it was made subject to an undertaking that it not be relied on to prejudice the PSA in these proceedings, was not relied upon; instead reliance was placed in the proceedings on the immediate predecessor Award known as the Crown Employees (Office of Environment and Heritage - Parks and Wildlife Group) Field Officers and Skilled Trades Salaries and Conditions 2016 Award ("the AWU Award"). So far as relevant the Area, Incidence and Duration clause of the AWU Award provides: 44.1 This Award will apply to employees in classifications covered by the Australian Workers Union and to Skilled Tradespersons employed within the National Parks and Wildlife Service of the Office of Environment and Heritage. 44.2 This Award will not apply to employees: (i) that transferred to the OEH where these employees occupied positions which are the subject of any other awards under Administrative Order of 2 April 2007 and subsequent Orders which established Department OEH of Environment and Climate Change effective 27 April 2007; or (ii) that are employed in the Senior Executive Service (SES); or (iii) that are employed in the Botanic Gardens Trust; or (iv) whose conditions of employment are determined by the Crown Employees (Office of Environment and Heritage - Parks and Wildlife Group) Conditions of Employment 2015 Award or any successor instrument to that Award including employees who are occupying Field Officer classifications where the role description specifies the role's location as a facility that principally services the employer's operations at Kosciuszko National Park which bounds are prescribed by the Government Gazette of NSW (or any successors thereto); or (v) whose conditions and entitlements are determined by the Flight Officers Enterprise Agreement 2015 or any successor instrument to that Agreement. (Emphasis added)
5. Clause 44.2(iv) of the AWU Award provides an exclusion, reciprocal to that in the PSA Award, in favour of the PSA. However, the scope of the PSA Award is all-embracing in respect of employees of the NPWS save for the exceptions specified in cl 46.2 of that award. The effect is to create a vortex of uncertainty. The AWU Award appears to acknowledge the difficulty by referring to "employees who are occupying Field Officer classifications where the role description specifies the role's location as a facility that principally services the employer's operations at Kosciuszko National Park" ("KNP"). That clause is, however, preceded by the word "including". So the exclusion is not confined to those employees.
6. A further difficulty is that, on the evidence, there are no role descriptions for Field Officers which specify the position's location as one which principally services KNP (or any other part of the NPWS estate). That is not surprising since, as the evidence showed, role descriptions are prepared by NPWS and the only union which has had involvement in negotiating them is the AWU. The role descriptions for Field Officers are common across the State.
7. Mr Chin on behalf of the applicant submitted that the scope of each of the awards is to be determined by reference to the 1979 undertakings and the words used in the Area, Incidence and Duration clauses which, as I have found, give effect to those undertakings. The words used in each award are tolerably clear when viewed in isolation. When the two awards are read together ambiguity is evident. Mr Chin referred to the decision of Commissioner Seymour in Health Services Union New South Wales and Ambulance Service of New South Wales [2017] NSWIRComm 1057 and the authorities there cited at [11] - [15] in support of the proposition that the 1979 undertakings were relevant to understanding the language of the awards. Particularly apt in this respect are the oft quoted words of Street J in Bond v McKenzie (1929) AR 498 at 503-4: "But at the same time, it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result, as this award in fact did, from an agreement between parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament." The relevant "agreement" reached in this case was that made between the unions in 1979. In my view the awards should be construed in light of those undertakings. The agreement made no reference to position or role descriptions. To the extent the addition of those words changed the scope of the AWU Award it departed from the intention of reflecting the agreement.
8. Alternatively, the solution to the conundrum, if not found in cl 46.2(iv) or cl 44.2(iv), may be found in cll 46.1 and 44.1. The PSA Award applies to employees within the industrial coverage of the PSA. Similarly, the AWU Award applies to employees within the industrial coverage of the AWU. In short the point of current demarcation may depend upon the industrial coverage of the two unions.

Industrial Coverage

1. Mr Chin submitted that the industrial coverage of unions is determined by their rules and the proper interpretation of those rules having regard to external matters such as the registration undertaking given by the AWU. He cited a number of authorities in support [6] . Those authorities support the construction of eligibility rules by reference to the ordinary meaning of the words used but, where appropriate, having regard to common understandings as to the industrial meaning of particular words. While that proposition was not challenged by the other parties, I am not sure the 1979 undertakings fall for consideration in that context. If they do, then the AWU rule would be read to exclude Field Officers employed in KNP.
2. Of more persuasive effect is the notion that a union is bound by undertakings given in a registration process and if it were to act in breach of them it would put its registration at risk: In re The Boilermakers Society of Australia, Sydney Branch No 1 [1965] AR 350 at 352. On one view of that authority the rules are to be read in light of registration undertakings. On the other hand, the authority may simply stand for the proposition that a union which acts contrary to undertakings to achieve its registration may be subject to deregistration. In the present context, that has relevance to the making of demarcation orders and consequent variations to the union's rules [7] . Accordingly, it is unnecessary to determine to finality the scope of the AWU's eligibility rule in order to resolve the issues arising in these proceedings.
3. The 1979 undertaking purported to exclude from the AWU's interests those employees identified as falling within the exclusive coverage of the PSA. Relevantly, in the present context, the AWU conceded by its 1979 undertaking that the PSA had exclusive coverage of employees covered by the Crown Employees (Kosciusko National Park Wages Field Staff) Award ("KNP Field Staff Award").
4. The KNP Field Staff Award, in 1979, defined its coverage in the following terms: "13. Area, Incidence and Duration This award shall apply to all officers as defined herein within the jurisdiction of the National Parks and Wildlife Service, &c., Employees, Conciliation Committee. It shall take effect on and from the 10th day of May, 1972, and shall remain in force thereafter for a period of two years."
5. The Industries and callings covered by the nominated Conciliation Committee included: "All persons employed as or whose ordinary duties consist of work usually performed by park workers… and who are employees of - (a)… (b)… (c) the National Parks and Wildlife Service of New South Wales in terms of the Public Service Act, 1902, as amended."
6. There may be room for debate about the scope of the KNP Field Staff Award in terms of its application beyond KNP, but it is clear from the title of the KNP Field Staff Award that it covered employees engaged as park workers in Kosciusko National Park.
7. The effect of the settlement undertaking therefore was to agree that the PSA had exclusive coverage of "park workers" covered by the KNP Field Staff Award. There does not appear to be an issue, or scope to argue, that "park workers" do not include Field Officer classifications, particularly having in mind the title of the award.
8. Unless there has been a development since 1979 to alter the scope of the 1979 undertakings, the AWU Award in my view does not apply to Field Officers employed in KNP.
9. There remains a question as to what is meant by "employed in KNP". Before dealing with that issue it is necessary to deal with the evidence as to developments since 1979.

Possible developments since 1979

1. In 1996 the NPWS and the AWU agreed to a new award which purported to cover classifications within the exclusive coverage of the PSA pursuant to the 1979 undertaking. The PSA intervened and the application was varied to exclude the disputed area of coverage [8] reaffirming the 1979 agreement.
2. In 2006 the AWU and the PSA filed competing demarcation applications seeking exclusive coverage of the Field Officers employed in KNP. Following an agreement between the AWU and PSA the demarcation applications were withdrawn. The terms of that agreement included [9] : "1. Both the PSA and AWU to exchange mutual undertakings that neither union will seek each other's coverage in the Public Sector (eg the National Parks division on DEC). Both parties agree to withdraw all present demarcation applications. … 3. PSA to vary its Crown Employees Award to reflect the AWU's agreement on rates for Field Officers. 4. All anomalies regarding Field Officers at Kosciusko to be remedied by 30 June 2008. Both parties and Unions NSW to approach the DEC regarding arrangements for those Field Officers already in receipt of the 16% at Kosciusko. 5. Unions NSW to establish a committee with appropriate representation to facilitate ways of ensuring common outcomes in the future for field offices across NSW National Parks prior to any state-wide wage outcomes applying to Field Officers in national parks." … (Emphasis added)
3. I note I was informed that, until the making of the 2016 AWU Award, the AWU Award and the PSA Award provided identical conditions for Field Officers [10] . Restoring that position seems to be the purpose of paragraphs 3 and 4 of the 2006 agreement [11] .
4. The events of 2006 appear to have reaffirmed the 1979 agreement.
5. The AWU Award contains a classification of Temporary Field Officer - Bushfire Mitigation Program. The relevant cl 13.4.4 is in the following terms [12] : Temporary Field Officer - Bushfire Management Program (i) This clause contains temporary arrangements for the Enhanced Bush Fire Management Program of 2010. These arrangements will apply for a limited period of 3 years expiring on 30 June 2014 and may be extended for a defined period by agreement between the AWU and management. (ii) Field Officers- Bushfire Management Program, Senior Field Officers- Bushfire Management Program, Field Supervisors- Bushfire Management Program and Senior Field Supervisors- Bushfire Management Program are specific classifications directly connected to the Enhanced Bush Fire Management Program. These employees will be entitled to the same rate of pay and conditions, with the exception of the shift loading, as employees in the Field Officer, Senior Field Officer, Field Supervisor and Senior Field Supervisor classifications. (iii) All employees employed in Field Officer - Bushfire Management Program classifications (as defined in clause (ii)) are classified as Monday to Friday Workers including current employees that transfer to these classifications. (iv) Employees in Hazard Reduction classifications as defined in clause (ii) can be converted to a Seven Day Roster Worker position in accordance with clause 13.4.3. (v) When an employee who has worked in a Hazard Reduction classification returns to their previous substantive position as a Seven Day Roster Worker, they will be entitled to loading pursuant to clauses 13.4.5 (vii) -or (viii) from the date of return. (vi) New employees that are employed to backfill Seven Day Roster positions vacated by employees who transfer to Field Officer - Hazard Reduction classifications will be employed as Seven Day Roster Workers. (Emphasis added) The evidence suggested the variation to the award was made in 2011. No equivalent variation was or has been made to the PSA awards [13] . According to Mr Noack [14] the variation was negotiated without reference to the PSA and without any thought by Mr Noack about the impact of the variation on the demarcation agreement. In fact he gave no thought to it operating at Waste Point.
6. The evidence also suggested that the 2011 AWU Award and successor awards were applied so as to permit the recruitment and deployment of Enhanced Bush Fire Management Program ("EBMP") teams inside KNP from about 2011 without objection by the PSA. To the extent the PSA did not object, it constituted acquiescence in the watering down of the 1979 undertaking and agreement. On the other hand the work of EBMP teams, though focused on bushfire management, is clearly a subset of work of Field Officers. There does not appear to be anything in the PSA Award which would prevent the application of that award to those positions in KNP. The only issue is they are not 7 day roster workers and there has been no review to reclassify them as Monday to Friday workers [15] .
7. In 2016 the OEH reached agreement with the AWU for the making of the AWU Award. The PSA alleged that the award departed from the pre-existing common conditions in that, in the words of Mr Little [16] , it: "(a) introduced a new classification of Field Officer 1/2 that was only allowed to work Mondays to Fridays, thereby losing the right to the 17%, 7 day rostered workers allowance; and (b) introduced a new classification of Field Officer General Operations (FOGO). This classification was also restricted to working Monday to Friday and therefore denied the right to the 17%, 7 day rostered workers allowance. In addition the duties of the FOGO are a subset of the duties of the FO1/2 but are paid at a substantially lower rate of pay."
8. On 30 June 2016, the date of making of the AWU Award, the Deputy Chief Executive of the National Parks and Wildlife Service issued a memorandum which read in part [17] : "Key aspects of the award variation are: …

• creation of a new Field Officer General Operations (FOGO) classification
• the existing Field Officer 1/2 role is deemed a Monday to Friday role
• … … The PSA has not agreed to the use of the new and varied classifications for future field positions in Kosciusko National Park and Georges River National Park. Until further notice, all future employment using the new FOGO and varied Field Officer 1/2 classifications in these parks will occur under the AWU award conditions. …

1. Following a request by the PSA that the memorandum be retracted and a response declining that request the PSA notified a dispute which became the first proceeding listed at [1] [18] .
2. Mr Little gave evidence of a meeting on 16 December 2016 with the then AWU State Secretary, Mr Collison during which he said an agreement was reached in resolution of the dispute between the two unions. Mr Little set out in his statement his recollection of the meeting and the developments which followed. He said [19] : "72. At that meeting, we discussed the resolution of the dispute that was notified by the PSA. A discussion took place in words to the following effect: Me: Why are we having this argument again? We would be better served fighting job cuts together on the ground. I thought we would resolve this once and for all in 2006. I can't believe we are back here again. We would be better served working together. Staff: There's the 1979 demarcation agreement, which was reaffirmed in 2006. The Commission takes these agreements seriously. Collison: Yes, I agree. The OEH is causing us grief. We should be working together. Noack: I would like to have all the Field Officers. Me: I've been around a long time. We will never hand over our Field Officers in Kosciusko. They don't want to join the AWU. We've always represented them well, and will continue to do so. Paul [Noack], you weren't around during the 2006 dispute. The same issue arose then. We reached agreement then, we should do the same thing now. I recall that Mr Noack at some stage left the table, either to go to the bathroom or to make a phone call. After Mr Noack had left, and in Mr Noack's absence, Mr Collison said to me words to the following effect: Collison: I will honour the 1979 agreement as the Secretary. I don't walk away from my agreements, and I will honour that agreement. I may need a few days to work on Paul [Noack]. Immediately after this, I shook hands with Mr Collison. While we were shaking hands, or immediately after, Mr Collison said to me: "I'll send something over in a few days". The meeting ended soon after at that point. 73. Following that meeting I anticipated receiving a letter or email from the AWU recording our agreement that the PSA had exclusive coverage of the Field Officers in Kosciusko National Park. 74. On 17 January 2017 I received a phone call from Mr Collison. Mr Collison explained that he "is a man of his word" and when he said there was a deal it was done. He said that he was retiring at the end of June 2017 and that "Noack would not honour our agreement" and that he (Collison) "would not be able to honour the agreement" after his retirement."
3. Mr Little was required for cross-examination. He was asked some questions about the conversation on 16 December 2016 but relating to the substance of the agreement allegedly reached. The AWU thesis was that the split coverage of Field Officers had led to disputes "regularly" and as it had undoubted majority coverage of Field Officers in NSW it was reasonable for it to cover the classification at Kosciusko. The following extracts from the cross-examination illustrate this approach [20] . Q. Okay. So the particular demarcation arrangements historically for at least the last 20 years have regularly been a bit contentious, haven't they? A. Well, I am not sure if I would say regularly. I mean, from time to time this issue has clearly arisen, but I mean, I am not sure that I agree that it's a regular occurrence. Q. I mean, the AWU, I mean assuming the PSA is correct about having some coverage within Kosciuszko, the AWU clearly looks after Field Officers everywhere else, doesn't it? A. It does, yes. Q. So the AWU clearly is the main union for Field Officers employed by OEH? A. Within OEH, yes. Q. The AWU's got its own award, which it's entitled to negotiate on behalf of its workers, it's a bit OEH, isn't it? That's right, isn't it? A. To negotiate, yes, but there have been arrangements in place where we would negotiate collectively. Now, that's the general way in which we've always approached it. That's in accordance with the unions New South Wales consultative arrangements that were put in place back in the 90s. … Q. You quote yourself as saying, "We will never hand over our Field Officers in Kosciuszko. They don't want to join the AWU". Is that what you said? A. Yes. Q. The AWU has significantly more Field Officer members than the PSA based at Blowering, doesn't it? A. Well, I'm not sure. I know our membership, but I mean, I think there's figures in here that just suggest that, but had had members there, but I don't know whether you had more than us. I am not sure about that. Q. The PSA has seven at Blowering, doesn't it? A. That's right, yes. Q. And the AWU, I can assure you, has more than seven Field Officer members at Blowering? A. Well, if that's the case then you have more there. …

Operational Changes in NPWS

1. According to the evidence of Mr Michael Pettitt, Director of the Southern Ranges Branch of the NPWS, until the 1980s the staff engaged at Blowering, Khancoban and Lake Jindabyne (also referred to as Jindabyne or Waste Point) depots worked exclusively within Kosciusko National Park ("KNP").
2. It is not difficult to understand, therefore, the language used in 1979 to express the demarcation agreement reached between the PSA and the AWU.
3. However from the 1980s the amount of land managed by NPWS has grown significantly. That led to significant changes to the way the land was managed. Mr Pettitt said that the NPWS had moved from a geographical to a "whole of landscape" approach to management of the estate. One effect of this, he said, was that there are now no depots which exclusively or primarily service KNP. Staff now work across boundaries and travel around the State as needed.
4. In cross-examination Mr Pettitt acknowledged that KNP represented about 76% of the Southern Ranges Branch in terms of land area. He also accepted that it has the most visitors per annum and the most visited facilities requiring maintenance. He eventually accepted that most Field Officers based at Waste Point spend most of their time in KNP and that the depot primarily (but not exclusively) services KNP.
5. In re-examination Mr Pettitt referred to an attempt to establish a depot at Holbrook, outside KNP, following the addition of new reserves in 2001. The need to duplicate infrastructure, however, meant that the cost was prohibitive so the staff were moved back to Blowering depot. He added that was what he meant by depots not being established to be "exclusively Kosciusko based".
6. Mr Pettitt also explained the management advantages which flow from the Field Officer General Operations ("FOGO") and Field Officer 1 - 2 ("FO 1 - 2") positions. His evidence was [24] : "Q. Just after your return from lunch you were asked some questions about the 10 individuals that have been put on as FOGOs temporarily. Why are those temporary rather than permanent appointments? A. Okay, the temporary FOGO positions to date have been associated with the orange hawkweed programme. The orange hawkweed programme exists within the Kosciusko National Park. It was a weed what was brought in I believe by previous use of the Park. The area where the weed is, is in approximately 6,000 hectares of Kosciusko but a lot of that is under snow during the Winter period. So we have a programme that utilises the seasonality of Kosciusko to treat the weed during Summer but there is nothing we can actually do with the weed during Winter because it's under snow, so we actually employ them on a temporary basis and we have now done that with the FOGO's for two years running. Q. Following that line of questioning you were taken to the people who have been appointed as Field Officer 1‑2 and asked some questions about their previous employment particularly as 1‑4s. Why weren't the permanent positions they were offered Field Officer 1‑4? A. What we are looking at is trying to set up a process where we can have a range of officers doing a range of works. So often the 1‑4, a Field Officer 1‑4 position, they are higher graded and higher skilled and some of the works that we are actually doing on ground such as hoeing, toilet maintenance and things like that were taking some of those Field Officer 1‑4 positions away from some of the more critical roles of pest management in the roles that require a higher skill. So we look to employ people on the 1‑2 level as an ongoing position to actually handle some of those works and to provide them with training and skills to upgrade them to make them employable in higher grades as opportunities arise. Q. Those employees who were temporarily in 1‑4 roles on that list, to your knowledge obviously 1‑4 range band contains 1, 2, 3 and 4, which band were they in? A. I would have to. Q. Only if you know? A. Generally they would have been in the lower 1‑2 level. I would say that of all Ben Fleming would have been probably a level 3."
7. I accept that there have been operational changes in the NPWS that mean that no depot "exclusively" services KNP. On Mr Pettitt's, evidence and the evidence of other witnesses, I also accept that from time to time employees from depots other than those within KNP perform work within KNP. That may have implications for the practical application of the current Award regime and the ongoing operation of the demarcation undertakings. I shall return to this issue in due course.

Daniel Marsden

1. Mr Marsden was, at the time of giving evidence, a Grade 4 Field Officer based at the Jindabyne Depot. He commenced with NPWS in 2005 in a temporary role. He worked in various positions as a temporary employee until 2009 when he gained a permanent position. Included in his various roles were periods of acting in senior positions. For almost all of his employment he was based at Jindabyne Depot.
2. He joined the PSA in 2016, motivated by a concern that the NPWS was misusing the AWU Award in KNP. He and his colleagues at Jindabyne were disappointed at the changes agreed to by the AWU in 2016 and he was critical of the process adopted, as he understood it, to gain employee approval.
3. His concerns included:

• The limitations for career progression opportunities for Field Officer General Operations ("FOGO") and Field Officer 1-2 ("FO 1-2") positions;
• Restricted opportunities for staff to acquire skills needed for merit advancement;
• The inequitable and inadequate remuneration of FOGO positions particularly compared to FO 1-2 positions which are essentially required to perform the same task;
• The displacement of FO1-4 positions by FO1-2 thus restricting career advancement for permanent employees and opportunities for long term temporary employees; and
• The change in role descriptions in a way inconsistent with the competency structure.

1. Mr Marsden described the 17% loading payable to FO1-4 employees as rolling up a number of allowances previously paid and providing compensation for weekend and public holiday work. He also said that he and his colleagues at Jindabyne were generally happy with the PSA's representation. There was a widespread and long-standing preference of staff for continued PSA representation. He said there were five teams operating out of Jindabyne Depot. With the exception of the members of the EBMP team the overwhelming bulk of employees in the five teams are members of the PSA. They also spend at least 85% of their time in KNP. The EBMP Team he estimates spend about 60% of the time in KNP. He also provided detailed commentary and criticisms of the revised structure.
2. Attached to his statement was a "Letter of Support" for the PSA Award signed directly by or on behalf of staff of the Jindabyne depot.
3. In his statement in reply Mr Marsden challenged a number of matters asserted by witnesses on behalf of the AWU and NPWS.
4. In cross-examination by the AWU, Mr Marsden accepted that there are "pros and cons" in negotiating new awards. He accepted that permanent employment has advantages over temporary employment and that a number of long term temporary employees had accepted jobs in FO 1-2 or FOGO positions because they were permanent positions. He also accepted that they had done so voluntarily. He said he had not joined the PSA earlier than 2016 because he was satisfied with his award conditions and employment had been harmonious.
5. Ms Saunders, on behalf of NPWS, challenged Mr Marsden's understanding of the 17% loading, suggesting it was in substitution for weekend and public holiday penalties only. He said his understanding was based upon discussions he had with other employees. Mr Marsden accepted that the PSA Award provides for FO 1-2 positions but said that no one had been employed in that classification to his knowledge.
6. I note the PSA Award provides for FO 1-2 and FO 1-4 positions. Progression to higher levels depends upon time in the position, satisfactory service and the acquisition of competencies defined for the higher levels. The PSA Award also makes reference in cl 13.2.4 [25] for an allowance of 17% for working up to 45 weekend days and 5 public holidays and "is paid in lieu of all other penalty rates". There was no other evidence dealing with Mr Marsden's understanding that the allowance also replaced various other penalty rates. I am unable therefore to resolve that issue.
7. The PSA Award also specifies in cl 13.2.4 that: 13.2.4 Seven Day Roster Workers (i) Seven Day roster worker is the default category of employment for the classifications listed in paragraph 13.2.4 (ii) except where paragraphs 13.2.2 or 13.2.3 apply. (ii) Seven day roster workers include the following classifications: Rangers, Senior Rangers, Assistant District Managers, Field Officers, Senior Field Officers, Field Supervisors and Senior Field Supervisors. This list is not exhaustive. Identification of additional roles will be done in consultation with the union. (iii) This provision will also relate to specifically identified roles where the working of a seven day operation is necessary for the efficient and effective operation of the role. Identification of roles that are to be designated Seven Day Roster Workers will be done in consultation with the union. … (Emphasis added)
8. Provision is made for reclassifying positions from seven day roster positions to Monday to Friday positions by a review committee established in each region applying principles agreed by the award parties. The unilateral determination of NPWS to create Monday to Friday FO positions and FOGO positions in KNP appears to be inconsistent with those award terms. NPWS, of course purports to rely upon the AWU Award and consensus with the AWU.

Steven Carter

1. Mr Carter was employed as an FO Grade 3 at Blowering Depot. He began his employment with the NPWS in 1990 and occupied a number of temporary positions until about 2001 or 2002 when he was successful in applying for an FO 1-4 position. He moved to the Blowering Depot in 2010 and has been based there since that time. He has been a member of the PSA since late 2000 and was elected as a delegate in about 2006. In his role as delegate he consulted members on an almost daily basis about industrial issues. He said that the Field Officers at Blowering were generally aware the PSA had secured the good conditions they currently enjoy. They were also aware that the AWU had agreed to introduce the FOGO and FO 1-2 Monday to Friday positions which were matters of concern to them.
2. There were, he said, four groups of staff working out of the depot. About half of the staff were members of the PSA to his knowledge. There were also some AWU members.
3. He estimated that staff based at his depot spent at least two thirds of their time working in KNP. Mr Carter provided a detailed commentary of his concerns as to the FO 1-2 Monday to Friday classification including the impact on other FO employees when performing weekend work. He was also critical of the limitations of the FOGO classification.
4. In cross-examination Mr Carter accepted that there were more AWU members than PSA members at the Blowering Depot and that had been the position since he started in 2010. He disputed that he had been invited to a meeting at Forbes to consider approving the AWU Award but did not challenge the proposition that the award had been approved in a democratic process by AWU members. He was not aware that the EBMP classifications only existed in the AWU Award.
5. In response to questions from Ms Saunders he agreed that there was interest amongst members in there being more permanent roles available. He also said that he thought not working weekends was not fair on the rest of the staff. Mr Carter agreed that the limitation of the FO 1-2 to competencies at that level meant that a former temporary employee, now employed in that permanent position, was unable to utilise his skills and qualification to operate heavy plant as he had done previously.

Adam Budworth

1. Mr Budworth had worked for NPWS since 1996. In 2002 he was based at Khancoban Depot in a position of Field Supervisor and was promoted to Senior Field Supervisor in 2004. In 2013 he was appointed Senior Field Supervisor at Blowering Depot and continued in that role at the time of giving evidence.
2. He was a member of the PSA until 2006 when he and 3 other members of staff resigned from the PSA and joined the AWU. He said he resigned because he was disgruntled with the lack of service by the PSA and with not receiving information about industrial issues. He refuted suggestions by Mr Chin that he joined the AWU only because there was a significant salary difference between the AWU and PSA awards for his classification at that time [26] . He was elected AWU delegate at Khancoban in 2006 and became a Senior Delegate for Blowering, Khancoban and Queanbeyan depots in 2013.
3. There were 2 AWU members at Khancoban which, he said had been an "AWU Depot" since 2006. Blowering has been a predominantly AWU Depot since he moved there. There were 15 AWU members and only, he believed, 4 PSA members. Attached to his statement was a "petition" signed by 14 AWU members at Blowering and Khancoban confirming they were AWU members and expressing the wish to remain so.
4. Mr Budworth also commented upon the operational arrangements within NPWS. He said there were 4 distinct geographical areas in the Southern Ranges Region of the NPWS. As to each he said: 1. Riverina Highlands is responsible for servicing the western side of KNP and 12 reserves located outside the boundaries of KNP. The field workers for the area were based at Blowering depot. 2. Murrumbidgee is responsible for the North-East part of KNP and 10 reserves outside KNP. Field workers for the area are based at Blowering. 3. Alpine Queanbeyan is responsible for the South-East part of KNP and various reserves around Queanbeyan. The field workers for the area were based at Waste Point or Queanbeyan depots. Workers at Queanbeyan depot would rarely enter KNP as the area is serviced by employees based at Waste Point. 4. Snowy River is responsible for the southern part of KNP and some nearby reserves. The field workers for the area were based at Waste Point depot.
5. He regarded the current award arrangements as absurd. He gave the example of the EBMP workgroups for whom employment conditions are only specified under the AWU Award. Negotiating for two separate awards led to disparities and inconsistent conditions in his opinion. In his view the AWU was responsible for negotiations on behalf of field workers across New South Wales. PSA members accept the benefit of those negotiations but refused to accept concessions designed to achieve those improvements. He regarded the efforts by the PSA as illusory. He regarded a demarcation based on the geography of KNP as impractical because "it cannot now be easily determined if an employee's role principally involves servicing [KNP] or not".
6. In his statement in reply Mr Budworth took issue with a number of propositions advanced by Mr Carter including that the Field Officers at Blowering Depot were generally happy with the PSA. He also sought to clarify a number of matters raised in Mr Little's statements.
7. In cross-examination Mr Budworth said he was not aware of a number of improvements negotiated by the PSA in the early 2000's or the reasons behind the PSA's negotiating position concerning salaries in 2004 to 2006. He accepted also that some of the signatories to the petition attached to his statement were based at depots outside KNP, being Khancoban and Tumut. Of the 14 persons signing the petition only eight were Field Officers based at Blowering Depot. He explained that the petition was not signed by all AWU members at Blowering because they were not present at the time. Mr Budworth agreed that he had reservations about the introduction of the FOGO classification; although he supported it in the vote he has since changed his mind. He acknowledged that there may be some concern amongst the staff at Blowering about FOGO's.

Michael Sinclair

1. The PSA also led evidence from Mr Michael Sinclair, an industrial officer employed by the PSA. He said he had been responsible for members employed by NPWS since January 2016, and had visited Blowering and Waste Point depots on about six occasions since he had taken on that responsibility. He acknowledged in cross-examination that five of those occasions had occurred while these proceedings were on foot. He accepted that there were no PSA Field Officer members based at Khancoban Depot at the time of his evidence but that he had visited there on two occasions in 2017.
2. He said the Blowering Works Depot is located about 13 km inside the boundary of KNP and the Waste Point depot is in the heart of KNP. Khancoban Depot is about 500 m outside the boundary of KNP. He described the PSA's representative structure applicable to Field Officers and Rangers employed by NPWS.
3. Mr Sinclair detailed his knowledge of the course of the 2016 award negotiations noting that PSA negotiated separately from the AWU and was not aware of the latter's intention to agree to the introduction of the FOGO classification or the introduction of FO 1-2 Monday to Friday roles.
4. Following the refusal of NPWS to withdraw its memorandum of 30 June 2016 he attended meetings with field staff at Blowering Depot. It was attended by about 15 Field Officers including some AWU members. He said many of the officers seem to be angry and disappointed that the AWU had agreed to introduce FOGO's in Kosciusko.
5. He attended a meeting at Waste Point the following day. There were about 20 Field Officers present at that meeting. He said all staff present appeared angry about the introduction of the new classifications. None agreed with the change and no one spoke in support of the introduction of these classifications. Particular concern was expressed that FO 1-4 officers who were long term temporary employees could now be told that the only permanent jobs available were within the FO 1-2 classification and they would face a significant drop in pay. He said one of the officers present, who was a very experienced long term temporary FO 1-4, had resigned from the AWU and joined the PSA in protest.
6. Mr Sinclair also gave evidence about the meeting of 16 December 2016 about which Mr Little and Mr Noack gave evidence [27] . His evidence was generally confirmatory of Mr Little's.
7. In his statements in reply he took issue with certain propositions advanced by Mr Noack including that, on his understanding, Blowering is a PSA Depot at which the PSA had, at the time of his giving evidence, seven members who were employed as Field Officers. He also disputed the number of members the AWU claimed at that Depot. He said he was aware that two long term AWU members at Blowering had resigned and joined the PSA.
8. He disputed that the AWU negotiated for field offices across the whole of New South Wales. The PSA had historically negotiated, and continued to negotiate, on behalf of such officers in Kosciusko. He gave examples of the activity of the PSA representing the interests of not only field offices but other employees of NPWS. He asserted that the AWU had recognised the adverse impact of the new classifications and referred to the text of an announcement under the authority of Mr Noack calling for all FOs 1-2 to be directly appointed to FO 1-4 positions and all FOGO's to be appointed to FO 1-2 positions. Mr Sinclair also took issue with some of the propositions advanced by Mr Budworth and Mr Pettitt.

Michael Ivill

1. The AWU led evidence from Mr Michael Ivill, a union organiser based at Wagga Wagga. His current duties included representation of AWU members working for NPWS in south-western New South Wales including members at Blowering and Khancoban Depots. He had previously been employed as a Senior Field Supervisor with NPWS between 1993 and September 2012.
2. Mr Ivill had been a member of the AWU in Queensland and the ACT several years before commencing work for NPWS. He remained an AWU member when he started working for NPWS at Dorrigo and then transferred to Blowering. He was informed in about 1998 or 1999 by Mr Little, then an organiser for the PSA, that Blowering was a PSA Depot. He was invited to join the PSA but declined. He asked for proof of the alleged demarcation arrangement but said it was not provided.
3. He was the only member of a union when he started at Blowering. He was invited by the AWU senior delegate to become an AWU representative on the Joint Consultation Committee ("JCC"). He accepted and when he began performing those duties there was some discussion about the demarcation arrangement but it did not last long and he was quickly recognised as an AWU representative for workers at Blowering.
4. Mr Ivill said he advised members at Blowering of the developments at JCC and progressively people started to join the AWU. He said the PSA had only ever had a minor presence at Blowering which increased only marginally after Mr Carter arrived from Waste Point.
5. Mr Ivill said that the employees at Blowering predominantly serviced KNP until 2005. After that time they were given responsibility for a range of reserves outside of the Park and they became a major component of the role. Since that time the operational changes within NPWS had made it "extremely difficult" to determine if Field Officers "principally service" KNP. He disputed the logical justification of a small group of workers in KNP being treated differently from field workers in the rest of State.
6. In his reply statement, Mr Ivill disputed Mr Little's statement to the effect that he had shown him in answer to his requests, documents relating to the demarcation agreement. He maintained that position in cross-examination, but added that he enquired at the time of the AWU organiser, Mr O'Connor, who did not say that there was no such agreement. Mr Ivill said he could not recall his response. Nevertheless he was determined to remain an AWU member and recruit others to the AWU while at Blowering at least until someone other than the PSA proved the existence of a demarcation agreement.

Credibility of witnesses

1. I had no reason to doubt the honesty of any of the witnesses. I formed the view that each was doing his best to put information before the Commission which they believe to be true. Due allowance must however be made for the subjective views advanced by the witnesses. Each had a committed and loyal attitude to the organisation which called him. I include in this observation Mr Pettitt. His forthright expression of the changes which have occurred in NPWS since the 1980s warranting a significant change in operational management did not prevent him from acknowledging the extent of the importance of KNP in the Southern Ranges Region.
2. Similarly, all the witnesses were prepared to acknowledge errors or the possibility of over or under estimates when challenged in cross-examination. When expressing subjective opinions, in my view honestly held, the effect of their organisational loyalty was apparent. I am not critical of that, but have taken the impact of it into account in determining factual questions. I did not regard the debate about membership numbers at various depots as significant. It is clear that each organisation has or has had a number of members in the affected depots. There is equally no doubt that membership numbers change over time.
3. To an extent I am critical of Mr Noack's evidence. That is because, particularly as an experienced senior union official, he was prepared effectively to disregard solemn agreements made by the organisation of which he was an officer. His reasons, principally a desire to act in the best interests of his members, may be noble but in this context the method of achieving the object was inappropriate. The effect of ignoring such agreements is that disputes emerge which have a deleterious impact on the organisation and thereby its members. I do not deny the importance of the motive but I express deep reservations about the method chosen to pursue the goal. It is well to recall the comments of Bauer J, quoted at [13], about the importance of maintaining such agreements.
4. Equally, I am critical of NPWS for seeking to circumvent industrial and award restrictions by negotiating with one union while effectively leaving the other in the dark. In my view it is counter-productive and risks award breaches by purporting to engage employees under award terms which do not apply in the relevant area. The desire to manage the organisation in the most efficient way possible does not justify ignoring award obligations or provoking demarcation disputes among unions. If NPWS is unable to convince the PSA of the merit of its position it can always approach the Commission for assistance through conciliation, and arbitration if necessary. Instead it chose to negotiate with another union and purport to extend the operation of that union's award into an area in which it does not operate.

Conclusions from the evidence

1. I am satisfied on the evidence before me that: 1. the PSA has a long history of industrial representation of Field Officers in KNP; 2. the PSA has a significant number of members at Waste Point and Blowering Depots; 3. at least the bulk of those members wish to remain members of the PSA; 4. the AWU has a long history representation of field offices outside KNP; 5. in the past 15 years or so the AWU has acquired members in KNP at Blowering and amongst workers engaged in connection with the EBMP; 6. some of those members no doubt, like Mr Ivill, were members of the AWU when they moved to positions in KNP, others were recruited while working in KNP; the bulk of the members of the AWU appear to wish to maintain their membership; 7. any order I make in connection with demarcation is likely to lead to disappointment amongst a relatively small number of employees; 8. there is a long-standing agreement between the AWU and the PSA dating from the registration of the former in 1979 that the PSA is to have exclusive coverage of field offices in KNP and the AWU would represent such workers outside of KNP; 9. that agreement was confirmed after its making on at least two occasions in 1996 and in 2006; 10. to the extent the AWU has purported to represent field offices in KNP it has acted in breach of that agreement; 11. the PSA has acquiesced to a minor degree in the breach in respect of employees at Khancoban Depot and some of those engaged in the EBMP and the purported application of the AWU Award to EBMP employees in KNP; 12. both the PSA and the AWU have sought to represent the industrial interests of their members as best they can; 13. from time to time there have been legitimate differences of opinion as to the strategies to be adopted in negotiations with NPWS. I do not propose to express a view as to the correctness of those strategies, that is a matter to be assessed by the members of each union; 14. the 2006 agreement included a term requiring the two unions to participate in a committee established by Unions NSW to facilitate common outcomes for field offices. There was no explanation of what happened in respect to that part of the agreement, but the evidence was clear that the two unions bargained independently with NPWS in respect of their awards; 15. NPWS has had operational changes which represent understandable management responses in order to fulfil its statutory mandate; 16. those changes have had an impact on what was otherwise a clear point of demarcation established in the 1979 agreement; 17. the changes are however not so great as to render the agreement a nullity; 18. NPWS has also sought to exploit differences between the unions to achieve industrial changes which are more accommodating of its management of the estate; 19. the Field Officers employed at Waste Point are almost exclusively engaged in servicing KNP. From time to time employees will be required to perform some work outside KNP, but certainly not in any significant amount; 20. similarly Field Officers employed at Blowering are performing the overwhelming bulk of their work in KNP. Mr Pettitt's evidence of the failed venture at Holbrook clearly indicates where the majority of work is performed - and that is in KNP; and 21. the evidence about Khancoban is not so clear. the depot is located outside the boundaries of KNP but by only about 500 m. Mr Pettitt's evidence was that until the 1980s workers based at Khancoban worked exclusively in KNP. His evidence in cross-examination summarised at [53], tends to indicate that a significant proportion, if not the majority, of the work of officers based there is performed in KNP. In final submissions Ms Saunders identified a number of items of evidence touching upon Khancoban but which did not provide any definitive evidence permitting a conclusion beyond establishing that workers based at the depot perform work, perhaps most of their work, inside KNP.

"Employed in KNP"

1. There is validity in the concern about reliance on the expression "employed in KNP". I accept Mr Pettitt's evidence that virtually no Field Officer works exclusively in any particular part of the estate. Nevertheless, it is clear that some Field Officers are effectively dedicated to servicing KNP. In this case the evidence justifies a finding, without significant difficulty, that employees based at Waste Point and Blowering are so dedicated. Those employees are, in my opinion clearly covered by the PSA Award. That, again in my opinion, includes employees engaged in the EBMP and in the FOGO and Monday to Friday FO 1-2 classifications.
2. I have set out at [16] clause 46 of the PSA Award. I observed at [21] that the PSA award applies to all employees within the industrial coverage of the PSA. All employees of NPWS, whatever their classification, are clearly within the coverage of the PSA. I observe that the PSA Award is not expressly limited, as some awards are, to classifications specified in Part B of the Award. In any event, the work performed by those classifications is, on the evidence before me, the work of Field Officers. FOGOs are directed to perform work at the lower end of the scale of complexity and skill and EBMP employees have a focus on bushfire management tasks. They are, in both cases, Field Officer classifications. They do not cease to be Field Officers within the meaning of the PSA Award simply because they are given a different name.
3. Although it would be a matter for a court to determine, finally, the proper application of the PSA Award to these employees, for the purposes of these proceedings I conclude they are employed subject to the terms of the PSA Award. The purpose of that finding is not enforcement of the PSA Award but to facilitate consideration of the applications for Determinations (especially the PSA Schedule A Determination) and to vary the awards to clarify their area of operation being the second and third applications listed at [1]. Ms Saunders, in her opening, foreshadowed an application by the first respondent to vary the PSA Award to include the FOGO, EBMP and FO1-2 Monday to Friday classifications in the event I found in this way. Any such application will need to be dealt with on its merits.
4. Before dealing with the orders sought, in these applications, to vary the AWU Award it is appropriate to deal with the application for demarcation orders.
5. As I have found at [98(21)] there is insufficient evidence before me about the work of officers based at Khancoban to determine whether they are "employed in KNP" within the meaning of the PSA award or the demarcation agreement. As will be seen, however, the orders sought by the PSA do not require that I take that issue further, at least at this stage.

Demarcation orders

1. The orders sought by the PSA are: 1. The Public Service Association And Professional Officers Association Amalgamated Union of NSW (PSA) is to have the right to the exclusion of the Australian Workers Union, New South Wales (AWU), to represent under the Industrial Relations Act 1996 (Act) the industrial interests of all persons who are eligible for membership of the PSA and who are employed by the Government of New South Wales in the service of the Crown to perform work: 1. of the kind ordinarily performed by Field Officers, Senior Field Officers, Field Supervisors or Senior Field Supervisors (howsoever each of those classifications or groups of employees are described); and 2. predominantly in or in connection with Kosciusko National Park, for the Office of Environment and Heritage (Employees). 1. Without limiting the generality of order 1, the Employees include all persons who are based at, or who ordinarily work from or out of: 1. Waste Point Road depot; and 2. Blowering depot. 1. The AWU is not to have the right to represent under the Act the industrial interests of the Employees who are eligible for membership of the AWU.
2. The orders sought by the AWU are: 1. the Australian Workers' Union, New South Wales ("AWU NSW") is to have the right, to the exclusion of the Public Service Association And Professional Officers Association Amalgamated Union of NSW ("PSA"), to represent under the Industrial Relations Act 1996 (NSW) the industrial interests of all persons who are eligible for membership of the AWU NSW and who are employed by Government of New South Wales in the service of the Crown to perform work the Office of Environment and Heritage ("OEH"): 1. falling within the classifications listed in the Crown Employees (Office of Environment and Heritage - National Parks and Wildlife Service) Field Officers and Skilled Trades Salaries and Conditions 2016 Award (or any successor instrument); and 2. which is based at, or is predominantly performed from or out of, OEH's: 1. Blowering depot; or 2. Khancoban depot. 1. The PSA is not to have the right to represent under the Industrial Relations Act 1996 (NSW) the industrial interests of employees falling within order 1 who are eligible for membership of the PSA.
3. The first respondent did not seek a demarcation order but it did seek Determinations which have a similar effect. They were set out in Schedules A2 and A(3) of its application. On the first day of hearing Ms Saunders advised that the Determination in Schedule A2 was no longer pressed in any form [28] . Schedule A3 seeks a Determination to the following effect: "Clause 44.2(iv) of the Crown Employees (Office of Environment and Heritage - National Parks and Wildlife Service) Field Officers and Skilled Trades Salaries and Conditions 2016 Award is interpreted so that to exclude from coverage employees: (a) who are employed in Field Officer classifications; and (b) whose role or position description specifies the location of the role as being located in a facility of the NPWS that principally services the NPWS operations in Kosciusko National Park, wherein the term "principally" means that the majority of the services undertaken at that NPWS facility (by all employees at that facility) are carried out for the sole benefit of the NPWS functions in the Kosciusko National Park.
4. The PSA does not seek an order specifying Khancoban although the first order in its general terms, is sufficiently broad to encompass employees based at Khancoban, or Tumut for that matter, whose work is "predominantly in or in connection with" KNP. In final submissions Mr Chin submitted that the PSA did not object to the AWU having exclusive coverage of Khancoban. That concession would allow a more simple solution to the issue of award variations he submitted.
5. The AWU does not seek an order giving it coverage of employees based at Waste Point. The effect is that both unions will continue to have coverage of employees in KNP albeit, in the AWU's case confined to particular Depots.
6. The emergence, from time to time, of industrial disharmony leads me to conclude that it is appropriate to make a demarcation order. The existence of the undertaking, given by the AWU in order to seek its registration leads me to conclude that an order should be made in favour of the PSA. The breach by the AWU of its undertaking is an important factor influencing the exercise of that discretion for the reasons stated by Bauer J in the Toll Collectors Case at [13]. So too is the action of the NPWS in seeking to circumvent aspects of the existing industrial regulation of work to suit its preferred operating model.
7. I recognise that the AWU has the majority coverage of Field Officers throughout the State and the difficulties that might arise from time to time in having another union at the negotiating table. That was undoubtedly the reason for the inclusion of the term in the 2006 settlement requiring the establishment a committee under the auspices of Unions NSW. I recommend that the parties revisit that mechanism following consideration of the decision in this matter.
8. To be weighed against that numerical representational advantage is the long history of representation of workers in KNP by the PSA and the registration undertaking. The latter is a most significant matter. Mr Chin referred me to the decision of Williams DP in Re Bread Manufacturers Industrial Association of Australia. [29] In that case his Honour said: "Registration under the Act not only confers rights, it also confers obligations, some express and others implied. Continued participation in the system generally requires an organisation to abide by the agreements it makes, particularly an agreement which enabled it to enter the system in the first place. Except in exceptional circumstances, the Commission, in my view, should not take any action which would have the appearance of condoning a refusal and/or failure by an organisation to abide by the terms of an agreement made in settlement of an objection to a registration application, particularly the terms of an undertaking contained in such an agreement."
9. It is noteworthy that the union parties at least shared the view that the demarcation arrangements had for the most part operated effectively
10. I regard the wishes of employees as a neutral factor in this particular case. Some employees wish to have the PSA represent their interests and others want the AWU. In KNP there is no strong majority favouring either union.
11. The effect on the employer of making an order in favour of the PSA is that it will have to continue to deal with two unions. That would be the case if I made no order or even if I made the order sought by the AWU. So that effect is not a weighty factor against making an order. Any adverse consequence is, at least in part, the responsibility of the NPWS. If continued representation by the PSA was having significant deleterious effects upon the employer's operations it could have made an application for an order. It did not. Equally it could have approached the Commission seeking award variations or a single award for Field Officers based upon the industrial merits. Again it chose not to take either course.
12. I have also considered the consequences of not making an order. That would allow a state of uncertainty to exist particularly in the minds of workers in KNP. That uncertainty has allowed the AWU to breach its registration undertaking by purporting to represent persons it agreed were within the exclusive representational area of the PSA.
13. The argument that it did not seek to recruit these members should be given the same weight as that argument received in the Toll Collectors Case. The evidence of Mr Ivill [91] tends to suggest that the AWU was not entirely inactive in recruitment. Even if I accept that the AWU did not encourage enrolment of members at Blowering or Waste Point, the fact is the AWU took no action to inform would be members of its registration undertaking. I accept this case differs from the Toll Collectors Case in that the AWU's rules did not give it the right to represent Toll Collectors whereas it may or may not have that right in accordance with its rules in this case. At the very least the AWU should have informed the KNP workers of its registration undertaking and allowed them to make an informed choice about becoming a member.
14. For these reasons I am persuaded to make the order sought by the PSA. I do not accept the arguments that the operational changes in KNP have "irreversibly altered the undertakings" or made it "extremely difficult" to apply the test specified in order 1(b) sought by the PSA. Mr Pettitt's evidence made that clear. In light of the concession by the PSA in relation to Khancoban I will also make the order sought by the AWU but confined to Khancoban depot.
15. It is a necessary concomitant of my decision to make that order that I reject the application by the first respondent for a Determination that cl 44.2(iv) of the AWU Award should be interpreted so that the AWU Award operates in KNP.
16. I would simply add for completeness that the contention of NPWS underpinning the Determination it presses is that there is no facility in which the majority of the services undertaken, understood in the context of its draft Determination, are carried out for the sole benefit of the NPWS functions in KNP. My finding expressed in [96] concerning the staff at Waste Point and Blowering is sufficient to justify rejection of the NPWS application for that Determination.

PSA Determination

1. The PSA sought the following Determination pursuant to s 175 of the Act: "The Commission determines that, by operation of clauses 44.1 and/or 44.2(iv) of the Crown Employees (Office of Environment and Heritage - National Parks and Wildlife Service) Field Officers and Skilled Trades Salaries and Conditions 2016 Award (the Award), the Award does not apply to employees who are employed in the classifications of Field Officer General Operations or Field Officer Grade 1-2 and who work in the employer's operations at Kosciusko National Park which bounds are prescribed by the Government Gazette of NSW (or any successor thereto)."
2. The Determination sought by the PSA is effectively a corollary of my findings expressed at [100] and [101]. I am prepared to make the determination but note that my findings expressed at [101] go further, in that the findings apply to staff engaged in the EBMP. Although the PSA submitted that EBMP employees working in KNP were covered by the PSA Award, no formal application was made for a Determination extending to this latter group. Ms Saunders submitted that these were not enforcement proceedings and NPWS may wish to lead additional evidence if the question of award compliance was raised. Although the premise is correct the PSA's application for a Determination clearly raises the issue of award compliance, albeit restricted to the FOGO and FO1-2 classifications. Notwithstanding the conclusion I have reached about the EBMP employees, I will make no formal Determination about them. That is not intended to derogate in any way from my earlier findings.

Award Variations

1. The first respondent applied for a variation of the AWU Award to delete cl 44.2(iv) of that award. I reject that application as inconsistent with the demarcation orders.
2. The PSA's application sought the inclusion of a new clause 44.2(vi) in the following terms: "(vi) who are employed in the classifications of Field Officer General Operations or Field Officer Grade 1-2 and who work in the employer's operations at Kosciusko National Park which bounds are prescribed by the Government Gazette of NSW (or any successor thereto)." In view of the form of variation I propose I do not consider the additional subclause to be necessary or indeed helpful. Confining the subclause to two nominated Field Officer classifications is apt to lead to ambiguity.
3. In his closing submissions Mr Chin drew attention to the evidence about role descriptions [30] not including a reference to the positions location and therefore the problematic nature of cl 44.2(iv) of the AWU Award. He submitted that needed to be remedied in addition to the variation claimed in [122].
4. Mr Chin submitted that if demarcation orders were made then the coverage of the two unions would undoubtedly be affected, or at the very least clarified and that would have an impact on the Area, Incidents and Duration clauses of both the AWU and PSA Awards, essentially for the reasons discussed at [21]. In my view the form of the variations should be informed by the demarcation orders.
5. The problematic exclusions in the two awards were intended to reflect the demarcation agreement. The variations now made should reflect the demarcation orders I propose to make. No application was made to vary the PSA Award. Given the demarcation orders it may not strictly be necessary but, in my view, it is appropriate that an industrial instrument be as clear as possible. I therefore propose to vary the PSA Award to reflect the demarcation orders.
6. I note that the first proposed order is sufficiently broad to encompass employees based at Tumut although neither union sought to deal specifically with that depot. That may be a matter the parties wish to consider further before final orders are made. I grant leave to the parties, including the third respondent, to make submissions in writing within 14 days of the publication of these reasons as to the form of the orders I propose.
7. In accordance with s 295(2) of the Act, when the orders are finalised it will be necessary to give the industrial organisations and Unions NSW an opportunity to be heard as to whether the Commission should require the rules of each organisation to be altered.

Proposed Orders

1. I propose the following Orders: 1. The Commission determines pursuant to s 175 of the Industrial Relations Act 1996 that, by operation of clauses 44.1 and/or 44.2(iv) of the Crown Employees (Office of Environment and Heritage - National Parks and Wildlife Service) Field Officers and Skilled Trades Salaries and Conditions 2016 Award (the Award), the Award does not apply to employees who are employed in the classifications of Field Officer General Operations or Field Officer Grade 1-2 and who work in the employer's operations at Kosciusko National Park which bounds are prescribed by the Government Gazette of NSW (or any successor thereto). 2. The Public Service Association And Professional Officers Association Amalgamated Union of NSW (PSA) is to have the right to the exclusion of the Australian Workers Union, New South Wales (AWU), to represent under the Industrial Relations Act 1996 (Act) the industrial interests of all persons who are eligible for membership of the PSA and who are employed by the Government of New South Wales in the service of the Crown to perform work: 1. of the kind ordinarily performed by Field Officers, Senior Field Officers, Field Supervisors or Senior Field Supervisors (howsoever each of those classifications or groups of employees are described); and 2. predominantly in or in connection with Kosciusko National Park, for the National Parks and Wildlife Service (Employees). 1. Without limiting the generality of order 1, the Employees include all persons who are based at, or who ordinarily work from or out of: 1. Waste Point Road depot; and 2. Blowering depot. 1. The Australian Workers' Union, New South Wales ("AWU NSW") is to have the right, to the exclusion of the Public Service Association And Professional Officers Association Amalgamated Union of NSW ("PSA"), to represent under the Industrial Relations Act 1996 (NSW) the industrial interests of all persons who are eligible for membership of the AWU NSW and who are employed by Government of New South Wales in the service of the Crown to perform work the National Parks and Wildlife Service (NPWS): 1. falling within the classifications listed in the Crown Employees (Office of Environment and Heritage - National Parks and Wildlife Service) Field Officers and Skilled Trades Salaries and Conditions 2016 Award (or any successor instrument); and 2. which is based at, or is predominantly performed from or out of, NPWS's Khancoban depot. 1. The Crown Employees (Office of Environment and Heritage - National Parks and Wildlife Service) Field Officers and Skilled Trades Salaries and Conditions 2016 Award is varied by deleting clause 44.2(iv) and substituting; (iv) whose conditions of employment are determined by the Crown Employees (Office of Environment and Heritage - Parks and Wildlife Group) Conditions of Employment 2015 Award or any successor instrument to that Award including employees who are occupying Field Officer classifications and who perform work predominantly in or in connection with Kosciusko National Park and are based at the Waste Point and Blowering Depots in Kosciuszko National Park which bounds are prescribed by the Government Gazette of NSW (or any successors thereto); or 1. The Crown Employees (Office of Environment and Heritage - Parks and Wildlife Group) Conditions of Employment 2015 Award is varied by adding to subclause 46.2(iv) following the words "that Award" the following: "including employees based at Khancoban depot whether or not they perform work predominantly in or in connection with Kosciusko National Park";

Order

1. Leave is granted to the parties to make submissions in writing as to the form of orders proposed to give effect to this decision within 14 days of the publication of these reasons.

Endnotes

1. Altough each of the parties is an applicant its own application and names the other parties as respondents I have, for ease of reference, adopted the nomenclature of the PSA application.
2. The OEH was abolished by Administrative Arrangements (Administrative Changes - Public Service Agencies) Order 2019 cl 12(2). Subclause (3)(a) of cl 12 provides that a reference to the OEH in any document is to be taken to be a reference to the Department of Planning, Industry and Environment.
3. KNP was first reserved as a State Park by the Kosciusko State Park Act 1944 (NSW) and subsequently as a National Park by the National Parks and Wildlife Act 1967 (NSW) which repealed the Kosciusko State Park Act. The 1967 Act established the National Parks and Wildlife Service and made it responsible for the management of KNP. The 1967 Act was repealed by the National Parks and Wildlife Act 1974 (NSW).
4. (1990) 36 IR 221 at p 222
5. That is supported by the terms of the correspondence exchanged between the parties, and tendered before the Registrar, settling the objection of the PSA to the registration of the AWU. The letters and the transcript of proceedings, including the decision of the Registrar, were annexed to the statement of Mr Little. The terms of the AWU's eligibility rule do not appear to have been amended to reflect that settlement. The AWU eligibility rule was not put into evidence. The 2006 application of the AWU for demarcation orders also asserted that the coverage of the industrial instruments reflected the demarcation agreement - see Exh 13 Affidavit of Stewart Little at par 59 and Exh SL1 at Tab 44, AWU 2006 Application for Demarcation Orders; Grounds and Reasons at par 3.
6. In particular National Tertiary Education Industry Union v The Melbourne Co-operative Bookshop Group Ltd, Watson SDP, 21 March 2002 [PR915650] at [3] and R v Williams; Ex parte Australian Building Construction Employees' & Builders Labourers' Federation (1982) 153 CLR 402 at 408.
7. See Australian Workers Union, New South Wales v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch (2003) 130 IR 208 at [95]
8. Exh 13 at par 57 and Exh SL1 Tab 37
9. Exh 13 at par 61 and Exh SL1 Tab 45
10. See also Exh 13 at par 62 and 66
11. Exh 14 at par 12. Mr Budworth was cross-examined by Mr Chin about the circumstances leading to the existence of different conditions and re-establishing consistency in 2006: Tcpt, 10 April 2018p 75(9) - 79(30).
12. Exh 24 at p 1237
13. This appears to be an the only exception to the common conditions referred to at [33].
14. Exh 21 at pars 25 - 28. See also Exh 23 at par 4 and the cross-examination of Mr Noack at Tcpt 11 April 2018 at p 193(25) - p 194(41); the evidence of Mr Little in Exh 14 at pars 25 and 26 and Exh 15 at par 13 and his cross-examination at 10 April 2018 at pp 41(15) - 42(1) and p 43 (1 - 23) ; and the evidence of Mr Sinclair in Exh 10 at par 3 and his cross-examination at Tcpt 10 April 2018 at p 2(24 - 29) and p 4(33 - 36); the evidence of Mr Marsden in Exh 6 at par 22 and cross examination at Tcpt p 51(27) - p 52(5); and the evidence of Mr Carter Exh 8 at par 27 and 28 and cross-examination at Tcpt p 73(8 - 26)
15. See [66] and [67]
16. Exh 13 Affidavit of Stewart Little at par 65
17. Ibid at par 67 and Exh SL1 tab 52
18. Ibid at pars 68 - 70
19. Ibid at pars 72 - 74
20. Tcpt 10 April 2018 at pp 32(1) - 33(34)
21. Tcpt 10 April 2018 at p 89(38 - 41)
22. Ibid at pp 99(15) - 100 (34)
23. Tcpt 11 April 2018 at p 197(4 -24)
24. "Tcpt, 9 April 2018, at p 41(43) - 42(30)
25. There appears to be a numbering error in the published PSA Award. Clause 14 contains a number of subclauses which are numbered 13 instead of 14. I refer to the clause number as it appears in the published Award.
26. This disparity was addressed in the 2006 settlement - see [32] and [33]
27. See [40] - [41] and [42]
28. Tcpt 9 April 2018 at p 8(6 - 18)
29. [1992] 45 IR 102 at 104-5
30. See [19] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 March 2020