Australian Workers' Union, New South Wales and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch [2002] NSWIRComm 245

Industrial Relations Commission of New South Wales

CITATION : Australian Workers' Union, New South Wales and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch [2002] NSWIRComm 245 APPLICANT/RESPONDENT Australian Workers' Union, New South Wales PARTIES : RESPONDENT/APPLICANT Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch RESPONDENT Multi-Fill Pty Ltd FILE NUMBER: IRC5744 of 2000 and IRC1552 of 2001 CORAM: Walton J Vice-President CATCHWORDS : Demarcations - Applications by industrial organisations to determine demarcation questions - Orders sought - Employer supports application by AWU - Nature of operations - Workplace reform sought - Multi-skilling - Findings of fact - History of industrial negotiations and regulation - Award and agreement coverage - Making of an award and changes by agreements - Nature of agreements - Effect of not being approved under Act - Practical assessment of non-approval - No net detriment - Consultative committee process and consideration of agreements by workforce - Existence of agreements or arrangements found - Connection between award and agreements and workplace reform - Aftermath of agreement made in 1999 - Attempts at workplace reform by employer - Involvement by AMWU - Changes in industrial relations - AMWU meeting with employees and management - Resignations from AWU - Undertakings by AMWU to employer - Notice of bargaining period - Log of claims - Differences between undertakings and log of claims - Absence of knowledge of former agreements by AMWU - Industrial action - Industrial dispute - Notification under Act - Wage adjustments - History of union membership - Issues concerning multi-skilling - Significance to enterprise - Different policies and approaches of unions - Outright opposition by AMWU members - Justification by AMWU by reference to inadequacy of training and job security and safety issues - Justifications found wanting - Ample representations and actions by employer to remove genuine concerns - AMWU vehicle for discontent and resistance over workplace reforms - Reject AMWU contentions as to its role regarding multi-skilling and justification for those actions - Submissions - Considerations and principles - Relevant factors to be considered - Nature of discretion - History of jurisprudence over demarcation questions - Interests of industrial organisations, employers and employees - Statutory scheme regarding demarcation questions - Objects - Constitutional coverage - Assumed coverage of AMWU - Historical or defacto coverage - Effectiveness of representation - Workplace reform and enterprise efficiency and productivity - Industrial conduct - Employer preference - Employee preference - Balancing and weighing all relevant factors - Conclusions - Demarcation question determined in favour of AWU - Orders made in favour of AWU - AMWU application dismissed - Directions re variation of rules Conciliation and Arbitration Act 1904 (Cth) Industrial Arbitration Act 1940 Industrial Relations 1988 (Cth) LEGISLATION CITED : Industrial Relations Act 1991 Industrial Relations Act 1996 Therapeutic Goods Act 1989 Western Australian Industrial Relations Act 1979 Workplace Relations Act 1996 (Cth) Association of Australian Port and Marine Authorities and Ors v Waterside Workers Federation of Australia (1993) 51 IR 59 Australian Workers Union v Federated Engine Drivers and Firemens Association of Australasia and Ors (1992) 44 IR 453 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers - Western Australian Branch (unreported, File No FBM 1/2000, 2000 WAIRC 00552) Building Workers' Industrial Union of Australia & Ors v Federation of Industrial, Manufacturing and Engineering Employees & Anor (No 1) (1992) 44 IR 158 Construction, Forestry, Mining and Energy Union v Federation of Industrial, Manufacturing and Engineering Employees (unreported, MacBean DP, 9 November1993, print K9844) Electrical Trades Union of Australia & Anor v Waterside Workers Federation of Australia & Ors (No 2) (1982) 59 FLR 78 Federated Clerks' Union of Australia, NSW Branch v Australian Workers' Union [1971] 71 AR 419 Federated Ironworkers Association & ors v Comalco Aluminium Limited & ors (1989) 30 IR 241 Federated Ironworkers Association of Australia v National Union of Storeworkers, Packers, Rubber and Allied Workers (1990) 35 IR 396 Federated Ironworkers' Association of Australia, New South Wales Division v Transport Workers' Union of Australia, New South Wales Branch and Another (No. 1) (1998) 78 IR 123 Federated Ironworkers' Association of Australia, New South Wales Division v Transport Workers' Union of Australia, New South Wales Branch and Another (No. 2) (1995) 62 IR 90 Federated Miscellaneous Workers Union of Australia v National Union of Storeworkers, Packers, Rubber & Allied Workers (1990) 35 IR 314 Federated Miscellaneous Workers' Union v Federated Liquor and Allied Industries Union [1964] AR (NSW) 628 Federated Tobacco Workers Union of Australia v Amalgamated Metal Workers Union and Anor (1988) 29 IR 263 Food Preservers Union of Australia v The Manufacturing Grocers' Employees' Federation of Australia (1986) 29 IR 243 Health and Research Employees Association of NSW v Public Service Association of NSW (1997) 92 IR 158 Health and Research Employees Association v University of New England [1984] AR (NSW) 623 Interpreting Trade Union Constitutional Rules (1988) 62 ALJ 690 Joyce v Christoffersen (1990) 26 FCR 261 Merchant Services Guild of Australia v J Fenwich & Co, Pty Ltd (1973) Current Review 6 Metal Trades Industry Association of Australia v Electrical Trades Union of Australia and Ors (1992) 42 IR 158 National Union of Store Workers, Packers, Rubber and Allied Workers v Waterside Workers Federation of Australia (1990) 44 IR 79 National Union of Workers, New South Wales Branch v Transport Workers' Union of Australia, New South Wales Branch and Anor (1998) 84 IR 360 at 366