The Australian Workers' Union, New South Wales. Application for alteration of Rules pursuant to s 245 of the Industrial Relations Act 1996 [2011] NSWIRComm 12

CONSIDERATION 24Section 245 of the Act provides as follows: Alteration of rules of State organisation 245 (1) [Consent required] An alteration of the rules of a State organisation does not take effect unless the Industrial Registrar consents to the alteration. (2) [Conditions for consent] The Industrial Registrar may consent to an alteration of the rules in whole or part, but must not consent to an alteration unless satisfied that the alteration: (a) complies with, and is not contrary to, this Act and relevant awards or orders of the Commission made under this Act, and (b) is not otherwise contrary to law, and (c) has been made under the rules of the organisation. (3) [Alteration relating to eligibility for membership] The Industrial Registrar must not consent to an alteration of the rules of an industrial organisation of employees relating to eligibility for membership of the organisation if, in relation to persons who would be eligible for membership because of the alteration, there is, in the opinion of the Industrial Registrar, another industrial organisation of employees to which those persons might conveniently belong. (4) [Amendment of alteration] If particulars of an alteration of the rules of a State organisation have been lodged with or recorded by the Industrial Registrar, the Industrial Registrar may, with the consent of the organisation, amend the alteration for the purpose of correcting a typographical, clerical or formal error. (5) [When alteration takes effect] If the Industrial Registrar consents under this section to an alteration, the alteration takes effect on the recording of the change by the Industrial Registrar. (6) [Exemption] This section does not apply in relation to an alteration of the rules of a State organisation that is: (a) determined by the Industrial Registrar under section 244 or 247, or (b) proposed to be made for the purpose of an amalgamation under this Part. 25There has been little analysis in recent times of the term "conveniently belong" in relation to New South Wales State registered organisations. The concepts behind the "conveniently belong" test have long been accepted to include the industrially desirable policy of reducing competition for membership between unions and to promote the purposes of the then current State Industrial regulation. Although the provisions for the alteration of the Rules of State unions was not in the same terms as the provisions dealing with registration of State unions, there was an overlap and consistency of broad industrial principle. In Re Building Constructions and Builders Labourers Federation of New South Wales (1979) AR 817 a Full Bench of the Industrial Commission, dealing with an Application for registration and objection by a previously registered union, dealt with the approach to be adopted under what was then s 8(3) of the Industrial Arbitration Act 1940, namely, that an application for registration could be refused by the Registrar if he was of the opinion that the interests under this Act of persons represented by the applicant union may be protected by a previously registered industrial union. In addressing the approach to be adopted to the provisions of s 8(3), the Full Bench stated that it was the duty of the Registrar, when considering an application for the registration of a trade union as an industrial union, to do something more, when forming the opinion that there was another union in existence under which the interests of the applicants may be protected, than merely to look at the constitution of the existing union. Section 8(3) of the Act involved the Registrar in exercising a discretion designed to achieve a result which was consonant with the purposes of the Act and the implementation of which would be practical. 26While the term "conveniently belong" had been considered on numerous occasions in the Federal industrial jurisdiction, it had not received a great deal of attention within the New South Wales industrial jurisdiction. The history of the provision and the test it laid down was referred to by a Full Bench of the Industrial Relations Commission in the Public Service Association of NSW and Health and Research Employees' Association v Broken Hill Town Employees' Union (2003) 125 IR 54. In that case the Full Bench stated: 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. 27Adopting that approach to the present matter, the Commission is to keep in mind the general policy objectives of avoiding a multiplicity of unions in the one industrial field but in the context that the constitutional coverage of an objector, alone, will not be sufficient to sustain the objection and that the Commission is to consider the convenience of the employees as proposed members of the applicant. The exercise of the discretion nevertheless requires each case to be considered on its own particular merits and how the implementation of the decision would be practical in its operation. 28In this case, it is far too late to attempt to take steps to avoid a multiplicity of unions because for many years in this State both the RMIU and AMWU have exercised coverage of printers: the AMWU and its predecessors have, it is accepted, exercised coverage of printers generally whereas the RMIU has provided industry coverage and award coverage for printers and others engaged in the recorded media industry since its registration in 1927. All that is proposed by the current application is that the coverage previously exercised by the RMIU will now be exercised by the AWU in circumstances where the AMWU since at least the early 1990s has serviced the interests of these members because of the incapacity of the RMIU to do so. During the long period that there have been two unions covering printers in this State, there is no evidence of industrial disputation or demarcation issues that have required the attention of industrial tribunals. There is no evidence to suggest that industrial tranquillity will be disrupted by the AWU taking up, by extension of its constitution rule, coverage it had exercised in a de facto sense on behalf of the almost defunct RMIU. That is a particular circumstance that is somewhat special and is a significant matter to be weighed in favour of the AWU in deciding this Application. 29In relation to the convenience of the employees, the material initially placed before the Commission demonstrated that the AWU has 62 members at Technicolor's Alexandria operations and 24 members at the Summit Technologies Silverwater site. There is evidence that the RMIU previously had as a member a printer employed at the Silverwater site. The evidence of the AWMU is that the objector has four members currently employed at Summit Technologies who are employed in or in connection with the printing industry although the number of AMWU members at that site had "varied over the years". In considering the convenience of the employees, it would appear, by reference to their choice of union, that the AMWU has printing members at Summit Technology but not at Technicolor and the applicant now has no printing members in either place. This factor has to be considered in the light of the evidence before the Commission that the relevant award has been obtained over the years by the AWU on behalf of the RMIU and it is the only union involved in the making and maintenance of that award. There is no evidence that the AMWU has sought to exercise award coverage on behalf of its members at Summit Technologies. There is now evidence of the overwhelming support of employees for the AWU application. There is no evidence upon which it could be concluded that those employees could conveniently belong to the objector, AMWU. 30The general convenience of the employees, on the evidence. favours the applicant AWU but in relation to printers, the small number of employees involved at Summit Technologies appear to be members of the AMWU. In the exercise of the Commission's discretion, the choice becomes one whether, on the one hand the traditional coverage of the RMIU should be acknowledged as being continued by granting the AWU's Application or whether recognition should be given to industrial policy by limiting coverage by the AWU by excluding it from exercising coverage over printers at Summit Technologies. In the absence of any evidence as to industrial difficulty between the two unions over many years and the fact that the industry award has been maintained by the RMIU and more recently by the AWU acting on its behalf, there appears to be no good reason to now limit coverage exercised by the unions in the field. In the unlikely event that an industrial difficulty arises about printers in this industry, the AMWU may have its interests protected by the possible availability of demarcation orders made pursuant to s 294 and s 295 of the Act. 31A further consideration in this matter is the fact that the coverage of the RMIU, now sought to be exercised by the AWU, is coverage of all employees in the recorded media industry. The AMWU covers printers, whether or not employed in the printing industry. It's objection therefore cannot succeed so as to deny any coverage in the recorded media industry to the AWU because it does not exercise general coverage in that industry. Its objection was framed and pursued on the basis that the Application, in its entirety, should not be allowed. That is a most unusual proposition and one that lacks industrial merit in the particular circumstances of this case and does not result in an industrially practical outcome. A second issue, of perhaps less significance but nevertheless of relevance, is that in many respects this Application for amendment of the Rules is, in reality, a de facto amalgamation. Undoubtedly, amalgamation could not have been obtained due to the fact that the RMIU is effectively defunct. Under amalgamation provisions operating under the Act, unions such as the AMWU would have a limited capacity to object to or prevent such an amalgamation (see especially the exemption provision of s 245(6)(b)). In the particular circumstances of this case, these matters are of significance. 32Having regard to the matters discussed above, the objector has not made out its case and the Amended Application by the AWU to extend its constitution rule is granted. In reaching this conclusion the Commission is not to be taken as being critical of the way in which the AMWU has generally serviced the needs of printers. The decision in this matter arises from the particular history of the RMIU in servicing the recorded media industries.

ORDERS 33The Commission makes the following order: The rules of the Australian Workers' Union, New South Wales are varied by inserting a new Pt G into Rule 6 Constitution of the rules of the union in the following terms: Notwithstanding anything else in this rule, and without being limited by any other provision of this rule, the union shall consist of an unlimited number of employees wholly employed in the making of all kinds of gramophone records and/or any such like article as is used on all kinds of talking or musical machines, except artists, singers, performers, musicians, associated technical crew and any employee eligible to be a member of the Media Entertainment and Arts Alliance, New South Wales. 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: 07 March 2011