Public Service Association of NSW and Health and Research Employees' Association of NSW v Broken Hill Town Employees' Union

APPELLANTS Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales Mr A A Hatcher of counsel Solicitors: Jones Staff & Co (Mr C G Staff)

LEGAL REPRESENTATIVES: The Health and Research Employees' Association of New South Wales Mr J V Murphy of counsel

RESPONDENT Mr A J Macken, Solicitor Solicitors: A J Macken & Co

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH

CORAM: WRIGHT J, President HARRISON DP CONNOR C TABBAA C Thursday 10 April 2003

Matter No IRC 1872 of 2002 PUBLIC SERVICE ASSOCIATION AND PROFESSIONAL OFFICERS' ASSOCIATION AMALGAMATED UNION OF NEW SOUTH WALES AND THE BROKEN HILL TOWN EMPLOYEES' UNION

Appeal by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales against a decision of Deputy Industrial Registrar Musgrave given on 20 March 2002 in Matter No R01/0256 Matter No IRC 2636 of 2002 THE HEALTH AND RESEARCH EMPLOYEES' ASSOCIATION OF NEW SOUTH WALES AND THE BROKEN HILL TOWN EMPLOYEES' UNION

Appeal by The Health and Research Employees' Association of New South Wales against a decision of Deputy Industrial Registrar Musgrave given on 20 March in Matter No R01/0256

DECISION OF THE COMMISSION [2003] NSWIRComm 100

1 These proceedings concern appeals by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (PSA) and the Health and Research Employees' Association of New South Wales (HREA) pursuant to s 194 of the Industrial Relations Act 1996. They were referred to the Full Bench of the Commission pursuant to s 193 of the Act. The appeals are brought against the decision of the Deputy Industrial Registrar given on 20 March 2002 in which he rejected the objections filed to the registration of the Broken Hill Town Employees' Union (BHTEU) by the present appellants and decided to register the BHTEU. The hearing of the objections occurred pursuant to s 220 of the Industrial Relations Act and the Deputy Industrial Registrar dealt with the matter under s 208(2) of the Act.

2 In the proceedings before the Full Bench, Mr A A Hatcher of counsel appeared for the PSA, Mr J V Murphy of counsel appeared for HREA and Mr A J Macken, solicitor, appeared for the BHTEU.

3 The gravamen of the Deputy Registrar's decision was that the special circumstances and industrial history of the BHTEU and of the Broken Hill region, more generally, resulted in the situation where the "conveniently belong" test under the statute had not been met by the PSA and HREA in respect of the objections lodged by them.

4 The Deputy Registrar, in his consideration of the "conveniently belong" ground, made the following observations: In my opinion, the present application for registration by the BHTEU essentially seeks to legitimise a long-standing arrangement regarding the industrial representation of certain employees in Broken Hill.

The BHTEU was at pains to emphasise that it sought only to cover those employees it had "traditionally" represented. Mr Campbell, the President of the BHTEU, conceded in cross-examination that the terms of the constitution rule of the applicant as amended on 9 October 2001 by the then adoption of new paragraph 3(B) were wide enough to comprehend a number of persons who were not presently members of the BHTEU, whom the BHTEU did not seek to cover and who were eligible for membership of the PSA. He therefore foreshadowed during his evidence a further amendment to the applicant's constitution rule to the form actually adopted on 10 December 2001, with the express intention of limiting the BHTEU's coverage of any occupations and areas of employment which might be covered by the PSA to specified occupations and areas in which the BHTEU had traditionally had and represented members.

Mr Macken submitted that the effect of the final form of the BHTEU's constitution adopted on 10 December 2001 was precisely that which Mr Campbell had foreshadowed: to limit its coverage of any occupations and areas of employment being those in which the BHTEU had traditionally had and represented members.

I think that Mr Macken is correct to assert that I can take notice of the special circumstances in which this application is made. Exhibit 3 in these proceedings was a joint statement of Rosslyn Greenwood, the Secretary of the BHTEU, and Brett Campbell, the President, who said, inter alia : 3. The BHTEU was formed in or about 1916 and has existed and operated as an organisation of employees continuously since that year. 4. The BHTEU was a foundation member of the Barrier Industrial Council (BIC) which is the local counterpart of the NSW Labor Council with which the Barrier Industrial Council has fraternal relations. The BIC also has fraternal relations with the ACTU. … 7. The BHTEU operates exclusively within the County of Yancowinna and does not seek by this application to acquire constitutional coverage for employees outside the County of Yancowinna. 8. The BHTEU also does not seek by this application to gain constitutional coverage for employees in any occupations other than those which have traditionally been members of and represented industrially by the BHTEU.

I take further note of the circumstances set forth by Mr Macken in the BHTEU's submissions in reply, which I have referred to at length above. Finally, I think it is open to me to pay heed to the broader industrial context pertaining in Broken Hill which has long been recognised by this Commission over many years whereby unions situate in the area, including the BHTEU, have initiated and appeared in various proceedings.

It is in this context that Exhibits 4 and 5, which occupied some attention in these proceedings, should properly be viewed. I agree with the submissions of Mr Hatcher for the PSA that the purported agreement [which] they were argued by the BHTEU to contain was not a demarcation in the proper sense, that the letters in themselves place no obstacle to the relevant employees conveniently belonging to the PSA and that the letters do not effect any kind of legal restraint upon the PSA's ability to enrol as members the relevant employees. However, the correspondence seems to me to recognise, however informally, a pre-existing situation which had persisted for many years, a circumstance which was surely known to the PSA's central organs.

In my opinion, this application and the objections to it must be considered in the context of the unique circumstances referred to above. When considered in this light, it is easily distinguishable from the various authorities cited by the parties in support of their respective positions, although they are permissive of me reaching the conclusion I have come to in that they recognise that a variety of factors can be taken into account in determining objections such as those before me in this matter.

I therefore dismiss the objections of the PSA and the HREA to the form of constitutional rule represented by the applicant's constitutional rule adopted on 10 December 2001 in its application for registration as an industrial organisation of employees.

5 HREA adopted, in large measure, the submissions of the PSA, adding brief submissions pertaining to the way in which the decision impacted on the membership of that particular organisation. We will deal with the submissions of the PSA and HREA together.

6 The PSA and HREA submitted that the questions of law raised by the appeal were: 1. Whether the Deputy Registrar had power to dismiss the objection of the appellant (and, presumably, grant the respondent's application for registration) without making any finding that there was no other industrial organisation of employees to which the members of the respondent might conveniently belong. 2. Whether the findings made by the Deputy Industrial Registrar about the "special" and "unique" circumstances of the respondent's application for registration permitted him to effectively disregard the requirement of s 218(1)(m) of the Act.

7 The PSA and HREA submitted that the essential question to be determined was whether the employees of the relevant class would be likely to have their industrial interests adequately represented by the PSA and HREA: Re Federal Firefighters Union (1990) 35 IR 27.

8 It was contended that although the Deputy Registrar's decision manifested "a proper understanding of the question to be determined", it contained a series of findings and reached conclusions which were in error and did not provide a proper basis for the dismissal of the objections, or for the consequent grant of the BHTEU's application for registration. In particular, the PSA and HREA contended that the Deputy Registrar erred in considering the "special" and "unique" circumstances of the application and the "broader industrial context pertaining in Broken Hill", matters which the appellants submitted had no bearing upon the proper determination of the appellants' objections.

9 In addition to the consideration of irrelevant material, it was contended that the Deputy Registrar erred in failing to have regard to relevant material led by the PSA. That evidence included: 1. The general awards for the relevant employees had been obtained and serviced by the PSA. The PSA had obtained wage increases as a result of the Memorandum of Understanding reached between itself and the State Government. Additionally, the PSA has recently engaged in "major litigation" to obtain a specific award for employees in group homes, relevant to some of the employees here in question: Department of Community Services Community Living and Residential (Interim) State Award (2000) 100 IR 447. 2. The PSA has approximately one third of its membership outside of Sydney, including 192 members in the Broken Hill region. There was no evidence of any complaints by the members in that region as to the level of service provided.

10 The BHTEU agreed with the submission of the appellants that the relevant issue in the case was whether the PSA and HREA were organisations within s 218(1)(m) of the Industrial Relations Act 1996 to which the relevant employees could "conveniently belong".

11 However, the respondent submitted that the history and "broader industrial context" in the Broken Hill area were relevant matters in determining whether the appellants' could adequately represent the members of the respondent: Re Federal Tobacco Workers' Union (1978) AILR 342, Re Federated Miscellaneous Workers' Union of Australia (1973) 153 CAR 1046 at 1060; Re Federal Firefighters Union at 36 - 37.

12 Mr Macken in specifically addressing the HREA's submissions contended that no member of the BHTEU apparently within HREA's coverage (as the evidence of the BHTEU's President, Mr Campbell showed) had expressed any willingness or interest in joining HREA, despite past efforts by that organisation to induce them to do so. Indeed, it was submitted that attempts by the HREA to recruit members of the respondent were rebuffed by rank and file members when approached in 1999.

13 The PSA was granted leave by the Full Bench at the hearing of the appeal on 19 August 2002 to adduce further evidence specifically directed to the number of members in the area of overlap in constitutional coverage between itself and the BHTEU. This arose from the PSA's submission that, because at the time certain of the evidence was given before the Deputy Industrial Registrar, the BHTEU was pursuing an eligibility rule which was broader in scope vis-à-vis the PSA than the rule which was ultimately pressed, the PSA was thus not able to focus its evidentiary case upon the relatively small area of coverage which became the subject of final dispute between the parties. A similar opportunity, to apply to file additional evidence, was provided to the HREA. That appellant, however, did not do so.

14 The PSA filed, pursuant to the leave granted, statements of evidence by Mr John Cahill, its Assistant General Secretary, which provided statistical evidence on the three areas of coverage falling within the area of overlap. The substance of the evidence, within the leave granted, was: 1. At TAFE, there are 190 full time and part time employees, 13 of whom are eligible for membership of the PSA. The PSA has seven of these employees as financial members of the PSA. 2. At Karanda House, there are eight employees all of whom are eligible for membership of the PSA. One is a non-financial member. 3. There are 19 employees at the Roads and Traffic Authority who are within the constitutional coverage of the PSA. Twelve of whom are PSA members. 4. The PSA had recently enrolled the Manager of Karanda House as a member and that she had at some time been a member of the BHTEU (this evidence was filed after the time for filing the evidence had expired).

15 Mr Cahill also provided further evidence on the question of whether the employees involved might conveniently belong to the PSA including evidence of the PSA's role in obtaining wage increases, pursuing award entitlements and negotiating other industrial issues on behalf of the employees and resources committed by the PSA to servicing the employees at Broken Hill. For example, the PSA obtained the first award (a State-wide award) for workers in community based residential services in 1999 and has been involved in discussions with the Department of Community Services on strategies for prevention of violence in disability workplaces. The PSA has also brought a prosecution under the Occupational Health and Safety Act 1983 against the Roads and Traffic Authority as to an incident in Broken Hill (O'Sullivan v Roads and Traffic Authority of NSW [2002] NSWIRComm 214) and has been involved in disputes or grading issues in TAFE locally concerning the proposed elimination of a security and a clerical position and the upgrading of a Senior Librarian's position. There was some contention as to the form of the evidence relied on by the PSA. It has not been necessary to resolve that issue.

16 The BHTEU in response to the further initial evidence filed by the PSA, contended that it had represented employees at Karanda House since 1992, shortly after Karanda House was established in December 1991, and that neither the PSA nor HREA had ever represented Karanda House employees. In addition, the BHTEU provided statements of support for its registration from nine of the ten employees at that establishment.

17 In relation to the coverage of Roads and Traffic Authority, the BHTEU confirmed that it did not intend to cover Roads and Traffic Authority salaried staff, as distinct from wages staff. The PSA response was, in substance, that this removed the area of dispute between the PSA and the BHTEU but the PSA had received no notice of any amendment of the BHTEU's rules in that area. That aspect has therefore ceased to be an issue in the appeals. It is appropriate the orders we make reflect that situation.

18 The only issue before the Deputy Registrar and the only issue decided by him was the objection taken by the appellants pursuant to s 218(1)(m) of the Industrial Relations Act; that is, the "conveniently belong" ground. That provision is in the following terms: 218. Criteria for registration (1) The Industrial Registrar is to grant the application for registration if, and only if: … (m) in the case of an organisation of employees - there is no other industrial organisation of employees to which the members of the organisation might conveniently belong.

19 Although that phrase has operated in the federal industrial jurisdiction and been the subject of decisions there over many decades, it did not enter the New South Wales industrial jurisdiction until the phrase was used in amendments to the Trade Union Act 1881 in 1959. At the time, s 14(7) was inserted into the Trade Union Act. The phrase was again used in s 412 of the Industrial Relations Act 1991: see the decision Cahill VP in Re The Australian Chamber of Manufactures, New South Wales Branch (1993) 50 IR 87 at 97 where his Honour held that the "conveniently belong" ground was not relevant in that case as the ground related only to applications for registration of unions of employees. There was no decision under the 1991 Act which otherwise dealt with the issue. The phrase then appeared in s 218(1)(m) of the 1996 statute. However, it appears that the present proceedings represent the first litigation as to that provision since the 1996 statute came into force.

20 The phrase has been considered at various levels of the legal and arbitral hierarchy and was, for example, referred to in the judgment of the High Court in Re Coldham; Ex parte Brideson (1989) 166 CLR 338. The Full Bench was taken in detail, as was the Deputy Industrial Registrar, to various authorities decided under the former Conciliation and Arbitration Act 1904 (Cth) and its replacement statute, the Industrial Relations Act 1988 (Cth). The first and, it would appear, the only detailed consideration of the provision as it appeared in s 14(7) of the Trade Union Act 1881 was that by the Industrial Registrar in Re Federated Riggers' and Scaffolders' Union (1961) 142 NSWIG 561 at 569. We concur with the view of the Registrar in that decision as to the use that might be made of the federal decisions when he said: Whilst acknowledging the persuasive force of the body of decisions which have been built up since the introduction of the Federal arbitration system I find that I am not obliged to follow slavishly such decisions. The differences the language which now exists between terms of s 142 of the Conciliation and Arbitration Act and that set out in paragraph seven of s 15 of the Trade Union Act 1881 as amended, must also be given due attention in determining the test of convenience to be applied.

21 The appellant PSA, however, did rely specifically upon a passage in the decision of Moore DP of the Australian Industrial Relations Commission in Re Federal Firefighters Union at 35 - 36, as follows: Bare constitutional coverage was not treated as sufficient to sustain an objection on grounds of conveniently belong under the C & A Act and I adopted that approach in Re ASMOF in relation to the Australian Railways Union. Apart from the evidence relating to Queensland, the objection of the AWU is, in essence, based on bare constitutional coverage. I was referred to a passage in Re ASMOF by counsel for the AWU in which I said: "The question s 142 requires to be answered is not whether it is more convenient for the members of an applicant association to be represented by that association in this system of conciliation and arbitration as compared to an organisation already registered, nor is it whether the association, if registered, is likely to more vigorously pursue the industrial interests of the class of employees in question than the existing registered organisation. The question is simply whether it is convenient for them to belong to and therefore be represented by the existing registered organisation." (1989) 28 IR at 437. Underlying that statement, however, is the assumption that it can be established that the objector is involved or is likely to be involved in adequately representing the industrial interests of the relevant class of employees in the processes of conciliation and arbitration established by, for present purposes, the IR Act . The purpose of s 204(4) is to limit the number of organisations representing the industrial interests of a class of employees in the system of conciliation and arbitration established under the IR Act but on the basis that the interests of those employees are likely to be adequately represented in that system by the organisation whose position is protected by the operation of s 204(4). In the present case there are two related matters which militate against a conclusion being reached that it is likely that the AWU will be able to adequately represent the industrial interests of firefighters. Both arise from the long and unusual history of industrial representation of firefighters. We should also set out a subsequent passage from Moore DP's decision (at 37) which is also relevant to the present issues: Whether a conclusion can be reached that an already registered organisation is likely to be able to adequately represent the industrial interests of a particular class of employee when it currently does not do so must obviously be determined in the circumstances of each case. However, as I have already indicated, the AWU is unlikely to secure the support of firefighters (and their State registered unions) for the foreseeable future and analogous situations have, on earlier occasions, been treated as relevant in considering the issue of conveniently belong. See eg Re Industrial Life Assurance Agent's Federation (1942) 46 CAR 578 and Re Association of Professional Engineers (1948) 62 CAR 781 at 786.

22 We do not consider that these proceedings provide an appropriate opportunity or occasion to deal exhaustively with the meaning that should be attached to the test set out in s 218(1)(m) of the statute. We are, however, prepared to approach the matter broadly in accordance with the passage extracted above from the decision of Moore DP. See also Re Building Construction Employees and Builders' Labourers Federation of New South Wales [1979] AR (NSW) 817 where the Full Bench of the Industrial Commission made clear that the test under s 8(3) of the Industrial Arbitration Act 1940 (a cognate but not precisely the same test as that in s 14(7) of the Trade Union Act) involved the exercise of discretion. Although the test in s 218(1)(m) does not provide a discretion in the sense considered in House v The King (1936) 55 CLR 499, nevertheless it does involve an act of judgment and we do not consider it appropriate to approach the matter on the basis that reference to the approach of the Full Bench in the Building Construction Case does not provide some assistance.

23 We make two further observations as to the case law dealing with the issue of "conveniently belong" in the federal jurisdiction. First, the onus of establishing there was an organisation to which the relevant members may conveniently belong rests upon the objector: Re Association of Professional Engineers, Australia (1952) 73 CAR 134, Re Australian Universities Industrial Association and Anor [1988] AILR 493. In Re Chamber of South Australian Employers (No 2) (1991) 43 IR 424 at 442, the Full Bench of the Australian Industrial Relations Commission (Munro and Peterson JJ and Leary C) commented: The lodging of an objection should heighten the care with which an applicant prepares its case but there is, as Mr Bleby submitted, also an onus on an objector to adduce evidence of and to otherwise substantiate the elements of the ground upon which the objection is made. It is to be expected that an objector relying upon section 189(1)(j) of the Act should make out its objection to a degree which might broadly be equated with a prima facie case in more formal proceedings: a case which, if accepted, precludes a finding that the criterion has been met. A case of this degree must go beyond mere proof of the organisation's entitlement to coverage under its eligibility rule but should normally be satisfied by the objecting organisation showing that it would be able to adequately represent in the federal system the industrial interests of the relevant class of employers or employees as perceived by the organisation. This is not the same thing as showing that it adequately represents its existing members although the fact that it does so may be the basis for an inference that the relevant members of the applicant could also be adequately represented and could therefore conveniently belong.

Upon such a case being presented an applicant who fails to supply persuasive evidence and material proving considerations relevant to, and capable of, establishing lack of convenience, would normally be found to have not made out its case.

24 Second, the issue of whether a group of members could "conveniently belong" to another organisation must be considered as being, initially, whether it is convenient to the members, but that convenience is to be measured by reference to the objectives of the Act. As such, where there is evidence that a group of employees would join the applicant union and no other, the various decisions appear to have considered it of greater significance to facilitate the representation of persons by an industrial organisation, in accordance with the objects of the Act, and so permit registration: see Re Federal Firefighters Union at 37 (per Moore DP as extracted above), Federated Clerks Union of Australia v Australian Shipping Officers' Association (1942) 47 CAR 30, Re Building Workers' Industrial Union of Australia (1962) 100 CAR 822 and on appeal (1962) 101 CAR 912, Re Association of Professional Scientists of Australia (1962) 101 CAR 920, Australian Railways Union v National Union of Railwaymen of Australia (1933) 32 CAR 443, Re AMP Society Staff Association (1968) 123 CAR 301. Although the mere preference of workers to be represented by another union may not be of significant weight, the objectives of the Act attach importance to registered organisations actually as well as legally representing particular classes of employees. As was observed by Detheridge CJ in Australian Railways Union v National Union of Railwaymen of Australia at 450 (referred to in AMP Staff Society at 303): It is not in accord with the declared intention of the Act that any considerable part of the employees in an industry should remain unorganised. To avoid this it is better to have more than one organisation in an industry.

25 In the present case, there was evidence of support for registration of the BHTEU from the class of employees in question. The BHTEU filed evidence of statements from nine employees at Karanda House expressing support for registration of the BHTEU and Mr Campbell, the President of the BHTEU, gave evidence that despite efforts by HREA to recruit members, including a visit by a HREA organiser to the County of Yancowinna in 1999, no current member of the BHTEU had expressed an interest in joining HREA. This evidence was disputed by HREA at the hearing at first instance but Mr Murphy did not call any evidence, including that of a HREA official, to otherwise contradict Mr Campbell.

26 The industrial history and circumstances of the Broken Hill region are, to a great extent, unique to the region and the BHTEU has played an important role in that history. The BHTEU was formed in approximately 1916 and has existed and operated as an organisation of employees exclusively within the County of Yancowinna since that time. It was also a founding member of the Barrier Industrial Council, in many ways the local counterpart of the New South Wales Labor Council, and has been active in the industrial representation of its members in the region. For example, the BHTEU has recently negotiated several industrial instruments on behalf of the employees in Broken Hill including the Far West Health Service Industrial Agreement and the Roads and Traffic Authority Wages Staff Barrier Industrial Council Enterprise Agreement. These agreements only cover its traditional coverage in Broken Hill and Mr Campbell's evidence confirmed that if the agreements extended beyond the County of Yancowinna, the PSA would have ordinarily been a party to the latter agreement and the HREA a party to the former.

27 The PSA expressed concern that registration of the BHTEU would grant it coverage of all TAFE employees. However, the evidence indicated that the PSA membership in the area of dispute within TAFE was not significant and, in a practical sense, granting coverage to the BHTEU by registration would not have a significant impact.

28 In industrial relations, and perhaps particularly so in the affairs of trade unions, historical circumstances have frequently had great significance and influence. So too, in the history of trade unionism, have traditions of commitment and loyalty to particular organisations. Although trade unions, as do all other organisations, have to adapt to changing circumstances, often in quite dramatic ways, the particular history and traditions of Broken Hill, which have as a feature the very long existence and history of activity and representation of the BHTEU and the fact of its apparent continued viability cannot be disregarded in considering these appeals. This is particularly so when it is recognised that the BHTEU had not previously applied for registration under the applicable industrial statute and thus has not enjoyed the advantages, both practical and legal, of registration.

29 Broken Hill therefore, for the purpose of these proceedings, may properly be said to have special features. Having regard to its particular industrial history and to the evidence of the PSA and the HREA which showed either no membership or a limited membership in relevant areas of overlap, which are themselves limited, it could not be held that the appellants had satisfied the statutory test of "conveniently belong". That results in the statutory criteria in s 218(1)(m) being satisfied by the BHTEU. The appeals should therefore be dismissed subject to the respondent's rules being varied to restrict coverage in the Roads and Traffic Authority to wages employees. We so order.

30 The Deputy Industrial Registrar is directed to issue a certificate of registration to the BHTEU under the Industrial Relations Act 1996 as soon as possible subject to being satisfied that: (a) the BHTEU has amended its eligibility rule to restrict its membership in the Roads and Traffic Authority to wages employees; (b) all other formalities have been complied with by the BHTEU.

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