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 CASES CITED : New South Wales Public Service Clerical Officer's Association v Public Service Association of New South Wales[1953] AR (NSW) 570 Olex Cables & Ors v National Union of Storeworkers, Packers, Rubber & Allied Workers & Ors (1990) 35 IR 368 Otto Waste Industries Pty Limited v Klajman (unreported, Matter No 52 of 1985, Cahill J, 20/5/1985) Professional Officers' Association of NSW v NSW Teachers' Federation and Others (1994) 54 IR 85 Public Hospital Employees Skilled Trades (State) Award [2001] NSWIRComm 41 Public Service Association (NSW) v Australian Workers Union (NSW) (1990) 36 IR 221 Public Service Association of New South Wales v Health and Research Employees Association of New South Wales (1996) 92 IR 122 Public Service Association of NSW v Federated Clerks' Union of Australia, NSW Branch (1954) 53 AR 244 Public Service Association v NSW Teachers Federation (1992) 50 IR 398 R v Aird, Ex parte Australian Workers' Union (1973) 129 CLR 654 R v Sweeney, Ex parte Northwest Exports Pty Ltd (1981) 147 CLR 259 Re MSB Officers' Association v Seamen's Union of Australia, New South Wales Branch [1981] AR (NSW) 900 Re Queensland Alumina Ltd (1992) 42 IR 304 Re Textile, Clothing and Footwear Union of Australia (AIRC Williams DP, print L1294, 19 January 1994, unreported) Re Williams: Ex parte Australian Building Construction Employees' and Builders' Labourers' Federation (1983) 57 ALJR 38 Scientific Officers (Public Hospital Scientists) Award (unreported, 7 September 1973) Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 State Wage Case 2002 [2002] NSWIRComm 118 State Wage Case August 1989 (1989) 30 IR 107 State Wage Case December 1994 (1994) 57 IR 1 Sydney Coal Lumpers Union v Federated Engine Drivers and Firemens Association of Australasia (New South Wales) (1991) 38 IR 265 The Federated Engine Drivers' and Firemen's Association of Australia (New South Wales) v Federated Liquor and Allied Industries Employees' Union of Australia (1983) 6 IR 304 Ware v O'Donell Griffin (Television Services) Pty Limited [1971] AR (NSW) 18 HEARING DATES: 03/26/2001; 03/28/2001; 03/29/2001; 05/30/2001; 06/06/2001; 06/20/2001; 08/10/2001; 09/11/2001; 10/29/2001; 11/01/2001 DATE OF JUDGMENT: 09/30/2002 APPLICANT/RESPONDENT Mr R Tripodi Australian Workers' Union, New South Wales RESPONDENT/APPLICANT LEGAL REPRESENTATIVES: Ms S Terpstra Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch RESPONDENT Mr A Vernier Australian Business Lawyers for Multi-Fill Pty Limited JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Walton J, Vice-President 30 September 2002 Matter No. IRC 5744 of 2000 AUSTRALIAN WORKERS' UNION, NEW SOUTH WALES AND AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION, NEW SOUTH WALES BRANCH. Application by the Australian Workers' Union, New South Wales for an order of demarcation pursuant to section 294 of the Industrial Relations Act 1996 Matter No. IRC 1552 of 2001 AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION, NEW SOUTH WALES BRANCH AND AUSTRALIAN WORKERS' UNION, NEW SOUTH WALES. Application by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch for an order of demarcation pursuant to section 294 of the Industrial Relations Act 1996 DECISION [2002] NSWIRComm 245 1 This matter concerns an application by the Australian Workers' Union, New South Wales ("the AWU"), and a cross-application by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch ("the AMWU"), for demarcation orders pursuant to s294 of the Industrial Relations Act 1996 ("the 1996 Act") regarding the employees of Multi-Fill Pty Ltd ("Multi-Fill"). 2 The origins of the present application are found in the resignation of some Multi-Fill employees from membership with the AWU in August 2000. The stated reasons for these resignations were primarily to the effect that the workers were dissatisfied with the AWU's representation of their industrial interests. A number of workers joined the AMWU which then proceeded to meet with the management of Multi-Fill, stating that there would not be any major changes but a new agreement would be negotiated in similar terms to that already existing. The AMWU subsequently served the company with a notice initiating a bargaining period for the pursuit of a certified agreement under the Workplace Relations Act 1996 (Cth). Following this, industrial action was taken by AMWU members employed at the site, resulting in a notification under s130 of the Act to the Commission, proceedings for which were held before Kavanagh J. One outcome of those proceedings was a recommendation that application be made for demarcation orders. 3 An application was then made by the AWU, and a cross application was made by the AMWU. The application by the AWU, in its final amended form, sought the following orders: 1. That the Australian Workers' Union, New South Wales, an industrial organisation of employees is to have the right, to the exclusion of the Automotive, Food Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch, to represent under the Industrial Relations Act 1996 (NSW) the industrial interests of the following class or group of employees who are eligible for membership of The Australian Workers' Union, New South Wales: All employees of Multi-Fill Pty Ltd employed by said company at 14 Garling Road, Kings Park, in the State of New South Wales, excepting those employees employed as either receiving storemen, production storemen and/or despatch storemen at 14 Garling Road, Kings Park and/or Unit 1 and/or Unit 2, 16 Garling Road, Kings Park, in the State of New South Wales, who are eligible for membership of the National Union of Workers', New South Wales Branch. 2. That the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch, an industrial organisation of employees, is not to have the right to represent under the Industrial Relations Act 1996 (NSW) the industrial interests of the following class of group of employees who are eligible for membership of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch: All employees of Multi-Fill Pty Ltd employed by the said company at 14 Garling Road, Kings Park, in the State of New South Wales. 3. That the rules of the Automotive, Food Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch be altered in accordance with any demarcation order or a subsequent order of the Commission so as to give effect to the demarcation order. 4 The grounds and reasons in support of the AWU's application were in the following terms: 1. There are other industrial organisations of employees, apart from the Automotive, Food Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch (AMWU), namely the Australian Workers' Union, New South Wales (AWU) and the National Union of Workers', New South Wales Branch (NUW) to which employees of Multi-Fill Pty Ltd have in the past, and do currently, conveniently belong. 2. The constitutional rules of the AWU conveniently cover the employees of Multi-Fill Pty Ltd 3. The constitutional rules of the AMWU do not conveniently cover employees of Multi-Fill Pty Ltd 4. There are industrial instruments of the Industrial Relations Commission of New South Wales in place, namely those set out in D above [see note below], to which the AWU, the NUW and the SDA and Multi-Fill Pty Ltd are parties and to which the AMWU is not a party. 5. The sudden presence of the AMWU at Multi-Fill Pty Ltd from around late July 2000 has given rise to industrial disputation and there is the potential for ongoing conflict between the AWU, the AMWU and Multi-Fill Pty Ltd unless the orders sought by the AWU are granted. 6. Multi-Fill Pty Ltd supports the former industrial arrangements in place before the appearance of the AMWU at the company. 7. If the orders sought by the AWU are not granted there is potential for further demarcation disputes and ongoing conflict between the AWU, the AMWU and other employers in the industry or industries concerned. [NOTE: the industrial instruments referred to in paragraph 4 are the Multi-Fill Pty Ltd Enterprise Agreement Award 1995 and the Drug Factories (State) Award]. 5 The application by the AMWU sought an order in the following terms: 1. That the Australian Manufacturing Workers Union and (sic) industrial organisation of employees is to have the right to the exclusion of the Australian Workers' Union to represent under the Industrial Relations Act 1996 (NSW) the industrial interest of the following class or group of employees who are eligible for membership of the Australian Manufacturers Workers Union: All employees of Multi-Fill Pty Ltd employed by Multi-Fill Pty Ltd at 14 Garling Road, Kings Park, NSW with the exception of employees engaged as receiving and storemen, production storemen and despatch storemen who are eligible for membership of the National Union of Workers NSW Branch. 2. Such other order that the Industrial Relations Commission deems appropriate. 6 The awards affected by the application were said to be the Metal, Engineering and Associated Industries (State) Award, the Food Preservers State Award and the Draughtsmen, Planners, Technical Officers &c (State) Award. 7 The grounds and reasons for the making of the orders were expressed as follows: (i) The Australian Manufacturing Workers' Union submits that it is an industrial organisation of employees that the employees of Multi-Fill Pty Ltd conveniently belong. (ii) The eligibility rules of the AMWU provide constitutional coverage for employees of Multi-Fill Pty Ltd engaged in the following classifications: · process workers · mixers · line setters · production supervisors · maintenance supervisors · QC inspectors · lab analysts · chemists (iii) The Metal, Engineering and Associated Industries (State) Award, the Food Preservers State Award and the Draughtsmen, Planners, Technical Officers, &c (State) Award are awards that more appropriately describe the work performed by employees listed in (ii) above at Multi-Fill Pty Ltd and should apply. (iv) Such other reasons as the Industrial Relations Commission deems appropriate 8 Further particulars of the grounds for the applications were given by the AWU and AMWU. I do not set them out in view of my later detailed discussion of their submissions in this matter. Findings of Fact 9 The proceedings were attended by some considerable issues of fact including a contest as to the history of the industrial relationships and transactions between the various parties. I shall, at the outset, deal in some detail with the relevant factual matters, but in doing so I will deal with the facts under a series of headings which are applicable to the ultimate determination of the applications. (I will later discuss the principles applicable to the determination of this matter). Nature of the Operations at Multi-Fill 10 The Factory Manager of Multi-Fill, Ian Duncan McNamara, gave extensive evidence as to the operations of Multi-Fill. Excepting for the issue of whether Multi-Fill 'manufactured' aerosol cans or their components (an issue which essentially concerned whether the constitutional rules of the AMWU extended to work performed at Multi-Fill), his evidence was unchallenged. Indeed, the AMWU conceded, in its written submissions, that it did not "challenge any description of work described in Mr McNamara's affidavit ...". 11 In view of my later conclusions as to the issue of the constitutional coverage of the AWU and the AMWU (whereby I have approached the matter upon the basis that both unions have constitutional coverage for the contested areas of work), it will only be necessary to set out those parts of the affidavit which describe, by way of background, the nature of Multi-Fill's operations. The relevant part of the affidavit are as follows: 5. Multi-Fill is a contract filler of aerosol cans and contract filler of bottles. It specialises in filling aerosol cans with products and packing them into boxes. 6. The main operations at Multi-Fill are the mixing of chemicals and filling of aerosol cans and to a lesser extent bottling of glass and plastic bottles ("collectively referred to as the operations"). (I understand the mention of bottling in this context should be understood as a reference to the filling of bottles). 7. The products used to fill the aerosol cans and bottles by Multi-Fill can be divided into two broad groups, namely: (a) non-food products, and (b) food products ... Non-Food Products 28. Multi-Fill fills aerosol cans or bottles with about 220 non-food products. 29. Some of the products that are used to fill aerosol cans include: (a) Fly and Insect Spray (b) Fly and Insect Low Irritant Spray (c) Insect Surface Spray (d) Furniture Polish (e) Oven Cleaner (f) Cockroach Stopper Spray (g) Flea Stopper (h) Upholstery Cleaner (i) Glass Cleaner (j) Ironing Spray (k) Air Freshener (l) Stainless Steel Polish (m) Chewing Gum Remover (n) Degreaser (o) Oven Kleen (p) Hair Spray 30. Multi-Fill buys the chemical components that go to make the liquid used to fill the aerosol cans or bottles for non-food products. The chemical components are mixed at Multi-Fill in the appropriate portions to make the product. The employees who perform this task are called Mixers … The non-food products which are used to fill bottles include: (a) Window Cleaner - refill and pump pack (b) Aromatherapy Bath Spa (bubblebath for spa) (c) Liquid Laundry Starch … 33. Multi-Fill also makes some of its own non-food brands. These are Tonizone, Pacific Products, In Profile (hair spray for salons) and Monique. 34. For all food and non-food products, Multi-Fill does not manufacture any of the aerosol cans (or its components) or bottles used in its filling operations. Multi-Fill buys each can, valve and cap of various types and bottles (glass and plastic). Multi-Fill also buys the cardboard cartons used to pack the filled aerosol cans and bottles … Food Products 35. Multi-Fill has about 14 food products with which it uses to fill aerosol cans or bottles. The food products include: (a) Virgin Olive Oil Cooking Sprays (b) Olive Oil Garlic Sprays (c) Canola Oil Cooking Sprays (d) White Wine Vinegar, Red Wine Vinegar and Balsamic Vinegar (e) Stir Fry Cooking Oils (plastic bottles) … 40. Multi-Fill does not make any of the food products which it uses to fill aerosol cans or bottles. The oils and vinegars are received ready-made from Multi-Fill's customers. Multi-Fill's role is to bottle or fill aerosol cans with the product. 12 Mr McNamara's evidence was that 73.7 per cent of the units produced at Multi-Fill were filled with chemicals mixed at Multi-Fill. The work of filling represented 71 per cent of the process workers' time at work. In relation to vinegar, Mr McNamara's evidence, which was also not challenged, was that Multi-Fill's role was to bottle the vinegar, some of which was heated before being bottled by process workers. Approximately four per cent of Multi-Fill's total production was bottling vinegar which occupied approximately nine per cent of a process worker's time. 13 Multi-Fill employed 51 full time employees, comprised of the following classifications: process workers, mixers, line setters/machine attendants, cleaners, production supervisor, maintenance supervisor, forklift drivers, line QC inspectors, lab analysts, product development chemists and office and administrative staff. 14 Multi-Fill also engaged contractors to carry out maintenance functions on machines and forklifts. These contractors usually employed fitters for this purpose. There were some references in the evidence to fitters being referred to in an enterprise agreement, however, it has not been suggested by any party that Multi-Fill has or intends to employ fitters in contrast to line setters who are otherwise classified and qualified. 15 As to the work performed by the various categories of employees, Mr McNamara stated: 23. The operation of filling aerosol cans and bottles ("the filling operation") is performed by process workers on an automated production line. The process workers are moved to different tasks on the process line each half an hour and moved from one process line to another. 24. The process workers are engaged in process lines that fill aerosol cans and bottles with food and non-food products. Multi-Fill does not have employees that only work on process lines for food products alone. All process workers rotate between process lines that are used to fill food and non-food products. There is no division amongst the process workers (or any other employee) based on the product (food or non-food) used for filling … 26. The line QC inspectors conduct checks on process lines for both food and non-food products. Once again, Multi-Fill does not divide the line QC inspectors between food products on the one hand and non-food products on the other. 16 There was an issue in the proceedings as to whether the Drug Factories (State) Award applied to the work performed at Multi-Fill. In this context Mr McNamara was cross-examined as to whether Multi-Fill manufactured products referred to in the area, incidence and duration clause of the Drug Factories (State) Award. His response was that Multi-Fill manufactured cosmetics, for example hairspray and anti-perspirants, as well as household chemicals. When pressed as to when Multi-Fill last engaged in the manufacture of these products, he stated that "We manufacture over 300 different types of product. In a particular day we could manufacture or make 10 to 12 different products. So from the stand here I couldn't pick out when we last did something." 17 There was also an issue as to whether Multi-Fill "manufactured" aerosol cans or their components. This issue largely concerned the crimping of metal cans. In view of my later conclusion as to the constitutional coverage of the unions, it is unnecessary to determine this issue. It is clear, however, that the components of the aerosol cans were manufactured prior to crimping taking place. 18 There was an issue in the proceedings as to whether employees, in particular Phillip Gray who was employed by Multi-Fill as a line setter, performed maintenance work (again, an issue which essentially concerned whether the constitution rules of the AMWU extended to work performed at Multi-Fill). 19 Mr Gray was the only line setter to give evidence. It appears clear that Mr Gray's substantial work was the setting up and pulling down of the production lines. Maintenance work was limited to basic tasks such as changing seals in the gas room with an allen key and minor repairs in the nature of tightening guide rails and removing objects jammed in a machine with a screwdriver. Again, it is unnecessary to determine this issue (connected as it is with the issue of union constitutional coverage) due to my later conclusions. 20 Sue Moore and Janet Howe, process workers employed by Multi- Fill, gave evidence that they performed some maintenance work in the course of their duties. I find that, on the balance of the evidence, process workers' functions in this respect are limited to removing accessible jammed components from the line. They do not include repairing or resetting the machinery. 21 Little evidence was adduced in the proceedings as to the full extent of the duties performed by line Quality Control Inspectors. Debbie Skillman, the only line Quality Control Inspector called to give evidence, gave evidence as to the role. She deposed: " The line QC inspector role involves weighing the aerosol can before and after gassing; measuring the crimp dimensions on a gauge; recording the serial numbers on a box; checking that the batch number is printed correctly on the bottom of the aerosol can; checking the batch number of the packed carton; checking the works order that correct stock has been used and checking the water temperature of the water bath." 22 In the period leading up to the emergence of the demarcation issues considered in this matter, Multi-Fill sought that the duties of production employees be expanded. Multi-Fill described that proposal as the introduction of multi-skilling. That initiative caused considerable controversy at the workplace and has some particular significance in this matter (to which I will later refer). It is sufficient for present purposes to identify that the reform to work practices which Multi-Fill intended to introduce involved integrating some quality control functions into the work of production line employees (it should be noted that during the Consultative Committee processes that occurred before December 1999, Multi-Fill discussed alternative means of introducing multi-skilling, that is, by means of new classification levels in the relevant award or agreement or by simply increasing the duties of production employees so as to carry out some quality control functions). 23 Mr McNamara gave affidavit evidence as to the nature of the multi-skilling for process workers which Multi-Fill had proposed to introduce at the work place. He stated: 71. The multi-skilling involves the following: (a) Weighing the aerosol can before and after gassing. The scale used to weigh the aerosol can does not record the actual weight but registers a number either a plus (+) in gram divisions, which means the can has an acceptable weight, or a minus (-) in gram divisions, which means the can is underweight. Annexed and marked with the letter "Q" is a photograph taken by me on 4 January 2001of a filled can being weighed. The photograph identifies the (+) and (-) on the scale. (b) Measuring the crimp dimensions. The crimp is the seal on an aerosol can. This skill requires reading a gauge. The gauge is read using the same principles as reading a chronograph watch. Annexed and marked with the letter "R" is a photograph taken by me on 4 January 2001 of the gauge used to measure the crimp diameter and height. (c) Recording the serial numbers of the box from which the components (eg can, valve) are taken. (d) Checking that the batch number is printed correctly on the bottom of the aerosol can by Multi-Fill's machine. (e) Checking the batch number of the packed carton. (f) Checking the works order that correct stock has been used. (g) Checking the water temperature of the water bath. These tasks are required to be done once every half an hour. 24 Mr McNamara elaborated on this description during his evidence in chief when he stated that multi-skilling further included the recording of the information obtained from performing the functions recited above. Whilst little evidence was adduced as to the full range of duties performed by Quality Control Inspectors, what was clear from the evidence was that part of the work of the Quality Control Inspectors was to be performed by the process workers. Hereinafter, in my discussions on multi-skilling, I will therefore be referring to Multi-Fill's desire to have the process workers perform the functions set out above. 25 The process workers, Ms Moore and Ms Howe, and a line leader, Sheila Mooney, who was also a witness for the AMWU, all gave evidence to the effect that they believed that they were already multi-skilled. Mr A Vernier, of Australian Business Lawyers, who appeared for Multi-Fill, however submitted that multi-skilling, as described by Mr McNamara, was not in operation. Ms Moore and Ms Howe both gave evidence as to the duties which they performed, none of which included measuring the crimp dimensions or the recording of results. During cross-examination by Mr Tripodi, who appeared for the AWU, it was put to Ms Moore that multi-skilling "actually goes beyond the work that you do, doesn't it"; She responded "Yes, the crimp and all that yes." Mr McNamara gave affidavit evidence refuting Ms Mooney's claim that she was already multi-skilled. He acknowledged that she knew how to read gauges, check and weigh cans and read code numbers, but that her knowledge in this respect arose from her work as a leading hand (which required knowledge of such tasks) and not as part of her work as an ordinary process worker. Ms Mooney also asserted that the multi-skilling proposed by the company would not expand her duties, however, she admitted during cross-examination that in performing her duties, she did not record the measurements which she took. 26 It is clear on the evidence that process workers were not multi-skilled in the sense proposed by Multi-Fill. It was not contested that multi-skilling included measuring the crimp dimensions and recording of the information obtained from performing the functions referred to previously in the decision, and none of the process workers called to give evidence by the AMWU performed these functions. Further, those functions did not form part of the duty statement for packing operator/process worker produced in evidence in these proceedings. It is also clear that Ms Moore, Ms Howe and Ms Mooney's evidence (as to already being multi-skilled), in fact, formed part of the basis for their objections to the introduction of multi-skilling. Their evidence really concerned whether the proposed multi-skilling was necessary, because, as I discuss later in this decision, they were opposed to its introduction. 27 As to the industry in which Multi-Fill operated, Ms Terpstra, who appeared for the AMWU, in her oral submissions submitted that, due to the nature of the business conducted by Multi-Fill, it was not clear into just what industry Multi-Fill fell. Further, the AMWU also submitted that it was not necessary to categorise the industry in which the business of Multi-Fill was found. The AWU agreed that a categorisation of the industry was difficult in this matter due to the lack of evidence in the proceedings as to work carried out at other enterprises conducting a similar business. I consider that these factual contentions are correct. Industrial Negotiations and Regulation 28 The early history of the industrial regulation of Multi-Fill was not disclosed on the evidence in these proceedings. 29 Mr Steven Jovanovski, a quality assurance inspector at Multi-Fill and the AWU delegate, gave evidence that there was industrial action during 1994 and 1995. This was necessary, according to Mr Jovanovski, to break an impasse between the employees and the management at the time. It was unclear what the key areas of dispute were, although a consent award emerged at the end of the negotiations between Multi-Fill and the AWU-FIME Amalgamated Union, New South Wales (the predecessor of the AWU). 30 On 4 September 1995, Maidment J made the Multi-Fill Pty Ltd Enterprise Award ("the 1995 award"). The award provided that it would remain in force until the end of the full pay period on or after 1 April 1997. Clause 3 of the 1995 award was entitled "parties" and was in the following terms : 3. Parties This award is made between, and shall be binding on, Multi-Fill Pty Ltd of 14 Garling Road, Kings Park, NSW, a company engaged in contract packaging, warehousing and distribution of aerosol and liquefied products, at 14 and 16 Garling Road, Kings Park, NSW, and The AWU-FIME Amalgamated Union, New South Wales, representing the employees of Multi-Fill Pty Ltd employed in the following classifications: Process Workers, Mixer Dispensers, Mixer/Supervisor (Compounder) Mixer Compounders, Analytical Process Chemists, Quality Inspectors, Quality Control, Line Setters, Fitters, Motor Mechanics. 31 The 1995 award contained the various classifications including process workers, mixer dispensers, mixer/supervisor (compounder), mixer compounders, analytical process chemists, quality inspectors, quality control, line setters, fitters and motor mechanics. 32 Clause 7 of the 1995 award specified the objects of the award. That clause was in the following terms: 7. Aims of the Award The aims of the award are to achieve flexible working hours, workplace productivity and harmonious work relations. The common goals and principles of the long term enterprise award process are summarised in Attachment A - The Common Goals and Principles of the Long Term Enterprise Agreement Process, as annexed to this award. (Emphasis added). 33 Attachment A to the 1995 award referred to four 'goals'. Goals 'A' and 'C' were relevantly in the following terms: Attachment A - The Common Goals and Principles of the Long Term Enterprise Agreement Process Goal A - Multi-Fill is a successful and competitive Company. It is able to win long-term contracts in a competitive environment and is able to retain long-term satisfied customers. Principles to achieve goal: 1. Multi-Fill's costs of production must be less than its competitors. 2. The quality of Multi-Fill's products must be better than its competitors. 3. Multi-Fill must have an accurate system to allow it to measure its costs and efficiency. 4. Work practices must be efficient and flexible. 5. Absenteeism must be minimised - sick leave is not to be used as an alternative form of recreation leave. 6. Some of the information in Multi-Fill's operation could be of great benefit to Multi-Fill's competitors. Such information must be identified and kept confidential. Goal C - Management and staff of Multi-Fill enjoy work satisfaction. Principles to achieve goal: 1. Where possible, jobs will be enriched by minimising repetitive work and increasing multi-skilling. 2. Staff will be encouraged to suggest ways to improve the production process. Such suggestions will be considered by management and a reply will be given to the person or group who made the suggestion. 3. Staff will be kept informed of Multi-Fill's position in the marketplace, the planned introduction of new products and proposed changes to methods and practices . 4. Staff will be trained to perform their work with confidence and safety and encouraged to undergo further training to allow them to develop technical and supervisory skills. (Emphasis added). 34 Clause 14 of the 1995 award provided for wage increases. Clause 14(a) stated the basis for the wage adjustments in the award as follows: 14. Wage Increase (a) As a result of substantial capital expenditure, the introduction of new technology, better planning and staggered flexidays, it is anticipated that greater productivity and efficiency gains will flow during the period of operation of the award. (b) The wage increase, to be paid as a consequence of this award, shall be paid in two instalments. The first instalment of $9.00 per week to be paid from the first pay period to commence on or after 1 April 1995. (c) The second instalment of $9.00 per week to be paid on or after 1 April 1996. 35 Clause 17, Classifications and Remuneration for New Employees, provided that the Consultative Committee would develop a new classification structure and that the classification structure in 'Table 1 - Rates of Pay' would replace the "current system of overaward payments." Table 1 provided for classifications - process worker, mixer/dispenser/compounder, line/supervisor/co-ordinator, quality control/inspectors and line process set-up and a series of proposed grades referable to each classification. The reference to overaward payments in this clause, when read in conjunction with clause 4, would suggest that industrial regulation at Multi-Fill, prior to 1995, consisted of the application of award provisions and overaward payments. 36 Clause 16 of the 1995 award established a Consultative Committee. That clause was in the following terms: 16. Consultative Committee There shall be a Consultative Committee comprised of representatives of Management and elected Union representatives in accordance with the provisions of the constitution in Attachment B, Consultative Committee Constitution, as annexed to this award. (Emphasis added). 37 Attachment B of the 1995 award was entitled "Consultative Committee" and relevantly provided as follows: Attachment B - Consultative Committee Constitution 1. Name The Council shall be known as the Multi-Fill Consultative Committee. 2. Aims The aims of the Committee are: 2.1 To develop an enterprise agreement acceptable to the employees, management, Company and the involved unions, with a proposed time-frame of two months. 2.2 To give employees an opportunity to participate in planning and decision making in order to make the organisation more productive, efficient, a better place to work and develop better understanding between management and employees. The initial objectives are detailed as Item 14, Objectives. 3. Scope The Council may address any matter except: Matters that should be handled by the Occupational Health and Safety Committee. Matters where decisions are normally made by a Superintendent or Supervisor, and where that person has had insufficient opportunity to make a decision. Matters relating to industrial issues may be discussed, but decisions would be reached through the normal disputes settlement procedure . Nothing in this clause in ( sic ) intended to limit the scope of the committee. The membership of the committee will determine if a matter proposed for consideration by the committee is subject to the above exemptions ... 10. Records of Meetings 10.1 Minutes shall be circulated to council members for verification prior to posting on notice boards. Every effort shall be made to have minutes published within one week of the meeting. 10.2 Information - The minutes shall include: Attendees at the meeting. Summary of the issues and alternatives proposed. Decision made and time frame for implementation of decisions. Time frame for consideration of deferred decisions. 10.3 Management shall keep a master file of all minutes. 11. Representative Communications Employee representatives shall be given reasonable opportunity during working hours to communicate with their constituencies. Inter-section courtesy and common sense should prevail … 14. Objectives Improve quality standards of goods and/or services. Increased productivity, which will lead to an increase in real wages. Reduction in wastage, which will lead to an increase in real wages. Reduction in occupational injuries. Increased job satisfaction and improved working conditions. Reduction in absenteeism and/or labour turnover. Become a world class competitive organisation. Improve responsiveness to customer needs. Improve use of existing technology, skill acquisition and training . Develop Enterprise Agreement for consideration by the workforce by 22 November 1994. Review and monitor the operation of the enterprise award … Signed by: Tony smith; M Palmer; P H Burger; Steve Jovanovski; Peter Toole; Don Gomez; D Gray; S Vorstenbosch. (Emphasis added). 38 Clause 19 of the 1995 award, the "flexibility" provision, provided as follows: 19. Flexibility (a) The parties are committed to the removal of demarcations and work practices which inhibit productivity and efficiency of the business. There will be no demarcations which prevent employees from carrying out work within their skills and capability. (b) Employees may be required to perform any duties that are within the limits of the employee's skill, competence and training. This may also include work which is incidental and/or peripheral to their main functions, as long as it does not promote deskilling. (c) Multi-skilling of team members will ensure that there is sufficient overlap in skills to cover any absence. (Emphasis added). 39 The 1995 award provided, in my view, a sufficient basis upon which Multi-Fill could either introduce multi-skilling (pursuant to the "flexibility" provision contained in Clause 19) or take initiatives leading to its introduction (Clause 16, when read in conjunction with Attachment B of the 1995 award, permitted Multi-Fill to have multi-skilling considered by the Consultative Committee). 40 It would appear that at the time of the making of the 1995 award the parties had treated the Drug Factories (State) Award (the consolidated award appears represented in Volume 265 IG(NSW) 1356 and reviewed award in 325 IG(NSW) 1) as the "parent award" applying at the workplace. Clause 4 of the 1995 award was in the following terms: 4. Relationship to Parent Award This award applies in conjunction with the following award, except where inconsistent with this award, in which case the terms of this award prevail. Drug Factories (State) Award published 26 August 1981, reprinted 16 May 1984 and further reprinted 8 November 1991 (265 I.G. 1356), as varied. Subject to section 122 of the Industrial Relations Act 1991, any subsequent amendments made to the parent award after the date of registration of this award will not be included into the terms and conditions of this award unless by mutual consent. 41 There was an issue in the proceedings as to whether the Drug Factories (State) Award was applicable to the work conducted at Multi-Fill. The AWU and Multi-Fill submitted that it was. In support of this contention reliance was placed on Mr McNamara's affidavit evidence as to the main business conducted at Multi-Fill being the mixing of chemicals and filling of aerosol cans and to the production statistics which he provided, all of which I have set out previously and do not repeat. Mr Vernier submitted that Multi-Fill was engaged "in the industry of manufacturing chemicals and/or household chemicals and/or toilet preparations and/or cosmetics or perfumes." The scope of this work, it was submitted, fell within the Drug Factories (State) Award and the 1995 award. 42 The AMWU submitted that as a result of "change in the production programming of work performed at Multi-Fill", the Drug Factories (State) Award was no longer applicable. It was submitted that the "Summary Classification of Goods Schedule 1988" and the "Therapeutic Goods Act" provided assistance in determining the definition of "drugs", which, according to the AMWU, is a "key element of the application of the Drug and Factories Award - drugs which fall under the definition of the award and those that don't". The union referred to Mr McNamara's evidence during cross-examination as support for its contention that the bulk of the work being carried out at Multi-Fill fell outside the "Area, Incidence and Duration" provision in the award. For reasons which I will give shortly, I do not consider that it is necessary to resolve this issue in this matter which essentially went, as it was debated by the parties, to the history of industrial regulation at this workplace (and the AWU's involvement in that history). 43 It was submitted by the AMWU that it was the wide variety of products "filled and/or manufactured at Multi-Fill that lends itself to being considered as special circumstance that warrant a review of the history of coverage under the present and existing arrangement." 44 There was a faint suggestion that the Metal, Engineering and Associated Industries (State) Award, the Food Preservers (State) Award and the Draughtsmen, Planners, Technical Officers, &c. (State) Award applied at the workplace ("the AMWU proposed awards"). It is true that those awards were relied upon in the AMWU's amended application. Copies of the AMWU proposed awards were exhibited in the proceedings. However, no specific submission was made by the AMWU as to how those awards may be applicable to the workplace (although an early submission by the AMWU suggested, without development, that some changes in the workplace may have attracted the operation of those awards). Multi-Fill submitted that the major and substantial work performed by the employees at Multi-Fill did not fall within the scope of the AMWU proposed awards. It was further submitted that it would be contrary to the industrial interests of Multi-Fill and its employees to move from a system where the work was largely regulated by one major award to a system, as proposed by the AMWU, where the work was regulated by three major awards. This would, according to Mr Vernier, be contrary to the objects contained in sections 3(a), 3(b) and 3(h) of the 1996 Act; contravene the industrial principle of the need for individual industries and workplaces to implement structural efficiency measures and was "without any sound basis at law based on the major and substantial employment test." 45 After an invitation from the Commission for the AMWU to clarify its position regarding the operation of the AMWU proposed awards, Ms Terpstra in her final written submissions, stated: It was raised in proceedings what the AMWU intends to do about its assertion that other relevant awards are applicable to the Multi-Fill site. The Union, subject to the outcome of these proceedings, if successful, may pursue a number of options open to it pursuant to the Industrial Relations Act 1996 (NSW). To continue to press the point at this stage, prior to a decision, would be premature. Should the AMWU application be successful, the union will hold discussions with the company with a view to a least disruptive course as possible to resolve issues of award applicability. 46 It is appropriate to make some preliminary findings of fact at this juncture: 1. The 1995 award was an enterprise award made by consent of the parties to it (namely, Multi-Fill and the AWU) which significantly regulated the terms and conditions of employment of Multi-Fill's employees. 2. The 1995 award continues to operate at Multi-Fill as it has not been rescinded or replaced (s 16(1) of the 1996 Act). 3. The AMWU was not involved in the establishment or maintenance of the 1995 award. In general parlance, it was not a party to the 1995 award. 4. By its terms the 1995 award excluded the operation of the Drug Factories (State) Award (see clause 4) to the extent of any inconsistency between the two instruments. Given the comprehensive nature of the 1995 award, the Drug Factories (State) Award, to the extent of its operation at the workplace, ceased to have any substantial, practical operation. 5. It is largely immaterial whether the Drug Factories (State) Award did apply (or would apply in the event of the expiry of the 1995 award). Given the continued operation of the 1995 award (see s 16(1) of the 1996 Act), its only real significance is to suggest an involvement of the AWU (in terms of industrial regulation in whatever form) prior to the 1995 award. This earlier involvement is, however, evident without the need to resolve the question of the legal effect of the Drug Factories (State) Award. This is so as the 1995 award refers to the Drug Factories (State) Award in such a manner as would indicate that that award was applied (irrespective of its legal effect) at Multi-Fill by the time of the making of the 1995 award. No party submitted that any contrary conclusion was available. 6. The AMWU in turn submitted that " the evidence about history of traditional union coverage has only been made out by the AWU and ABl for that matter, conclusively back to 1995 based on the evidence." I do not consider this submission to be correct. The evidence suggests that the AWU was an active participant in industrial relations prior to that time. Mr Jovanovski gave evidence as to having held the position of AWU delegate at Multi-Fill since approximately 1989. Ms Moore's evidence was that she joined the AWU in approximately 1994. Mr Vernier submitted that the AWU "has had coverage of the employees at Multi-Fill for over twenty years." 7. The AMWU did not press that the Commission determine that the AMWU proposed awards applied to employees at Multi-Fill. It is therefore not necessary then to determine that issue. Further, it is not clear just what aspects of the workforce, the AMWU would contend, is affected by the operation of those awards. It is reasonably clear that no one of the awards could cover the entirety of the contested workers at Multi-Fill. What is clear is that, in accordance with ordinary principles of interpretation, those awards would be excluded by the operation of the 1995 award, and the application of those awards would, at least, require the recision of the 1995 award. It is relevant, however, to note that the AMWU intends to hold discussions with Multi-Fill as to the applicability of those awards at some later time. By this I understand the AMWU to have foreshadowed that it would in the future (presumably if successful in its application in this matter) contend for the application of those awards at the workplace. Those awards have not hitherto been applied at the workplace (although the Metal Industry Award was envisaged as having some operation under an agreement negotiated in 1999 which I will later discuss). Any application of the proposed awards would, therefore, represent a significant change in the pattern of industrial regulation at Multi-Fill (that is, a departure from the enterprise award - the 1995 award). 1997 Agreement 47 I shall now turn to changes in terms and conditions of employment at Multi-Fill introduced after 1997. In 1997, an agreement described as the "Multi-Fill Pty Ltd Enterprise Agreement 1998" was negotiated between Multi-Fill, the AWU and the NUW. The agreement purported to operate from 1 April 1997 for a two year period (and, in the result, shall be referred to as the "1997 agreement"). The agreement was not the subject of an application for approval of an enterprise agreement or an application to vary the 1995 award under the Act. There was no evidence of it having been executed. 48 The only reasons suggested for the agreement remaining outside the provisions of the Act appear in the minutes of the Consultative Committee held on 29 July 1999 and in the evidence of Mr McNamara. In cross-examination by the AMWU Mr McNamara stated as follows: Q. Why were not the 1997 and subsequent 1999 agreements registered? May we deal with the 1997 agreement first? A. I wasn't an employee of Multi-Fill at that time. I am probably not the right person to talk about it. However, I have heard that there was general disagreement or there was something that went on and it never got signed off. However, the company did uphold all pay rises and conditions associated with that unregistered 1997 agreement. Q. If I understand what you tell me, even though there was general disagreement about that agreement, the company applied it nonetheless? A. Yes. 49 The Minutes of the Consultative Committee meeting held on 29 July 1999, which discussed the proposed 1999 Agreement (to which I will return later) recorded the following exchange between Mr Jovanovski and Peter Toole, who was referred to in Mr McNamara's affidavit as being the Supply Manager: SJ asked, "Are we negotiating a new Site Agreement"? PT advised that the Agreement was never signed off by the Union. We have to review this document and there may be changes that both parties may want. It was not signed off last time because there was some things in it that you did not want. 50 It would also appear that the agreement represented an agreement which, even if not entirely effective at common law, constituted a collective or industrial agreement between at least the AWU, NWU and Multi-Fill. The agreement was fully applied at the workplace from its specified operative date. Indeed, the AMWU accepted that there was an agreement reached in terms of the 1997 agreement. What appears to have occurred (although the evidence is somewhat limited) is that an agreement was reached by the parties but there remained some dissatisfaction as to some of the elements of it. That dissatisfaction resulted in the agreement not being formalised under the Act. 51 The principal differences between the 1995 award and the 1997 agreement were as follows: 1. The union parties to the agreement were the AWU (with respect to the classifications: Process Workers, Mixer Dispensers, Mixer/Supervisor (Compounder) Mixer Compounders, Analytical Process Chemists, Quality Inspectors, Quality Control, Line Setters, Fitters, Motor Mechanics and the NUW (with respect to employees covered by the Storemen and Packers Wholesale Drug Stores (State) Award). 2. Large components of the 1997 agreement were identical to the 1995 award and, in particular, the agreement contained the 'objectives' clause (formerly clause 7 and Attachment A relating thereto); the 'Consultative Committee' clause (formerly clause 16 and Attachment B thereto) and 'flexibility' clause (formerly clause 18) of the 1995 Award. 3. The 1997 agreement provided for a six percent wage increase, three percent payable form 1 April 1997 and a further three percent to be paid from 1 April 1998. 4. The 1995 award provided for the implementation of two bonus schemes designed to encourage reduction in wastage. The first scheme would reward employees if the plant consistently met wastage standards and the second scheme would reward employees if the plant performed to better than wastage standards, The 1997 agreement provided for the implementation of only one bonus scheme designed to encourage reduction in wastage, namely, a scheme to reward employees if the plant performed to better than wastage standards. There was no evidence that this new provision represented any reduction in earnings for employees (or, if so, so by what amount). There was no complaint made about this change by employees during the proceedings. 5. In the 1997 agreement, clause 7 concerned the hours of work. Both clause 8 of the 1995 award and clause 7 of the 1997 agreement specified ordinary hours of work being "an average 76 hours per fortnight." The essential differences between clause 8 of the 1995 award and clause 7 of the 1997 agreement were the definition of 'finishing time'; the reference in the 1997 agreement to 'storemen' in the Production Warehouse and 'storemen/despatch' in the Finished Good Warehouse; and the relationship between flexidays, sick leave entitlements and workers' compensation claims (elaborating on the relationship between leave entitlements, other absences and flexitime). "Finishing time" in clause 8 of the 1995 award was defined as "cessation of work-3.15pm" and "end of work-3.30pm. Provided that on the ninth day of each fortnight, cessation of work would be at 2.45pm." The clause also specified that "Afternoon tea and wash up time totalling 15 minutes is offset by finishing 15 minutes early each day." Clause 7 in the 1997 agreement defined "finishing time" for production employees (mixing, production, packaging/line quality) as "leave the job -3.15pm. Provided that on the ninth day of each fortnight the finishing time would be at 2.45pm." The 1997 agreement did not diminish the employee entitlements regarding finishing time. It merely confirmed that employees would finish at 3.15pm rather than 3.30pm, an entitlement which arose under the 1995 award as a result of the provisions offsetting the loss of afternoon tea and wash - up time (see cl 8 (b) (ii)). Apart from the language used in the respective 'hours of work clauses' this conclusion is verified by later evidence (in the cross-examination of a witness called by the AMWU) to the effect that the employees' loss of 15 minutes 'wash up time' was compensated by employees finishing 15 minutes earlier. 6. Finally, a new provision entitled 'personal/carers leave' was inserted in the 1997 agreement. 52 On balance, I consider that the 1997 agreement represented a substantial net improvement in the terms and conditions of employment of the Multi-Fill workforce. As I will later discuss, I do not consider that, in the circumstances of this workplace (where the 1995 award continued to apply), the failure to have the enterprise agreement approved under the Act or reflected in a variation to the 1995 award represented any real detriment to the employees. Negotiations for an Agreement in 1999 53 Negotiations for a new agreement commenced in 1999. The new agreement was negotiated substantially through a Consultative Committee. It is necessary, given some of the issues in the proceedings, to look at the course of the Consultative Committee process in some detail. 54 On 10 March 1999 a Consultative Committee was elected for the purposes of employees discussing with management a "1999/2000 Site Agreement". In relation to the election of the Committee, there was little evidence. Ms Mooney's evidence during re-examination by Ms Terpstra was to the effect that Mr McNamara put a notice on the board asking for nominations and suggested some process of elimination was involved in finding employee representatives. However, an inter-office memorandum dated 10 March 1999 announced the election of the Consultative Committee which closed on 4 March 1999. The memorandum provided that the following persons were elected unopposed as employee representatives on the Committee: Ian Falls (mixing), Pat Nagy (packing), Kurt Johnson (maintenance), Ron Lord (warehouse) and Mr Jovanovski (laboratory). I consider that those persons were elected by the election process contemplated by the 1995 award. 55 The memorandum also stated: The role of your representative is to bring to the Consultative Committee your views for your Site Agreement and report back to you on matters affecting you. They can only do their job if you support them. Please make the effort to consider improvements in your work conditions. 56 The Consultative Committee thereafter met on twelve occasions during the period 1 April 1999 and 7 October 1999. 57 Mr McNamara gave evidence as to Multi-Fill's practice in relation to the minutes of the meetings. As soon as possible after they had been typed he would personally place them on at least two notice boards, one notice board located below the production office where he worked, and another notice board located outside the lunch room where the employees ate. In relation to employees attending meetings of the Consultative Committee, Mr McNamara was asked by Ms Terpstra during cross-examination how people on the shop floor, not being members of the Committee, gained access to the meetings. His response was that "They were invited. It is not a hard and fast rule that we have, we go with the wishes of the people. If they want someone to attend, I didn't object." Mr Jovanovski gave evidence that it had been agreed between the "employee representatives and management on the consultative committee that Pat Nagy (who was my co-delegate at that time and who worked on the line) would be the contact point between the committee and the shop floor to address issues discussed and to be discussed at the meetings". He also stated that it had been made clear that any employees from the shop floor who wanted to take part in meetings of the consultative committee could attend and did so. During Ms Terpstra's cross-examination of Mr Jovanovski he was asked whether he ever held meetings with the members about "multi-skilling" on his own. He responded "That was Pat Nagy's job, unless otherwise there were people on the shop floor were not happy with her answer they could have come and seen me and if they were not happy with my answer, then our organiser would have been involved." 58 Pat Nagy had been Mr Jovanovski's co-delegate for four or five years. She was one of the employees who resigned from the AWU and subsequently joined the AMWU on 13 September 2000. Ms Nagy did not give evidence in the proceedings. 59 Ron McConville, the AWU Organiser who had the responsibility for servicing members at Multi-Fill, deposed as to his role on the Consultative Committee. He saw his role as being a relay point to the Committee of the views from the shop floor in response to management's proposals. He held regular report back meetings with union members to advise them of the course of discussions, including as to the issue of multi-skilling. 60 He further deposed that whenever he "was unable to attend meetings it was the understanding that the co-delegate Pat Nagy would inform employees as to what was happening." 61 There was an issue as to employees being fully informed of the deliberations of the Consultative Committee and of the AWU representing their interests. I have dealt with this issue in some detail further on and do not repeat it here except to confirm that the evidence supports a finding that the minutes of the meetings were, in fact, posted on notice boards, report back meetings were held with employees and, furthermore, it was open to employees to attend meetings of the Consultative Committee had they so wished. 62 The Consultative Committee discussed the making of a proposed new agreement. That process mainly involved the consideration of new classification levels and job descriptors, although such issues as hours of work, redundancy clauses and wage increases were also considered. Notwithstanding the provisions of the 1995 award and 1997 agreement, it would appear that the issue of multi-skilling also was discussed during the Consultative Committee process. This first arose at the meeting of the Consultative Committee held on 5 May 1999, although in this and later meetings the discussions of the concept involved a number of different considerations, including the creation of new classifications and skill levels. 63 The minutes of the Consultative Committee meeting held 5 May 1999 recorded P. Burger, P. Toole, D. Skillman, P. Gray, I. McNamara, I. Falls, S. Jovanovski and R. Lord as having been present at the meeting. Peter Burger was the Managing Director of Multi-Fill. Neither Ms Skillman nor Mr Gray had been elected to represent their areas on the Consultative Committee. Ms Skillman deposed in her affidavit that at times she sat on the Consultative Committee. Craig Partridge, a compounder/mixer at Multi-Fill, also deposed as to having sat as a replacement on the Consultative Committee. There was no suggestion that their attendance on the Committee was either irregular or improper. 64 It was plain, at the Consultative Committee meeting held on 5 May 1999 that Multi-Fill wished to introduce multi-skilling. Mr McNamara outlined to the meeting what he viewed multi-skilling to encompass. The minutes stated, in part: I. Mc sees multi-skilling being done out of your work area. A mixer could multi-skill into the store or even a picker but we would need to have training. The benefits are that when key elements are away on leave someone else can move in rather than get a casual in. It is easier to have a casual on the process line. You can pay the multi-skilled person a flat rate every week which will cover them when they move into the other role, or you can pay the extra when they move into the other role. 65 A general discussion as to multi-skilling then took place. Mr McNamara suggested that a sub-committee be formed on multi-skilling to come up with a proposal. Mr Burger's response was that they get details of descriptors "for a base" for the next meeting and then they could look at a sub-committee. Mr Lord commented that multi-skilling "is very floaty at the moment." Mr Toole stated that two weeks would be feasible to review the job descriptions and that they were "talking about line setters, process workers, mixers, fitters and storemen." Mr Jovanovski commented "that we need to discuss which areas and which people need to be started first with multi-skilling. This will not be for everyone - only the people who are interested. If 99% of people say they do not want to be multi-skilled then we have a problem." Mr Burger's response was "if these things happen it is one of the reasons why companies have redundancies. For any business to be here tomorrow the company needs a set of skills that can be used tomorrow." Mr Jovanovski then stated that "once we establish the areas and find out how many people from each area want to be multi-skilled, then we can find out where we are going. We will need to know how many people the company would like from each area for multi-skilling." The discussion on multi-skilling concluded with Mr Burger advising the Committee "that once we set some sort of structure and priorities we can get these things moving." 66 The next meeting of the Consultative Committee took place on 27 May 1999. Present at the meeting were Mr Toole, Ms Skillman, Mr McNamara, Mr Falls, Mr Jovanovski and Mr Lord. Apologies were recorded from Mr Burger and Mr Gray. Again there was a discussion as to various aspects of the proposed enterprise agreement. The discussion on multi-skilling was still in general terms and there was a suggestion that it be linked to a new classification structure. The minutes recorded that a discussion occurred as to a new classification structure (with various new skill levels). 67 As to the question of multi-skilling, there were a number of exchanges between members of the Committee. The minutes recorded Mr Toole having asked the meeting whether there had been any discussion with the "people outside on this". Mr Jovanovski responded that he felt that everyone wanted to be multi-skilled and "Everyone out there is interested and this would be an education for all of us." Mr McNamara advised the meeting that "the whole reason for multi-skilling is to cover gaps. We get a lot of James Personnel in who could do the Level 1 and 2 gaps. If it was to go on holidays we would have to get someone in-house to do this, a multi-skilled person - not a Level 1 or 2 person." It was noted in the minutes that Mr Toole asked the question: "How does multi-skilling and the team concept interact?" Mr McNamara responded that the next extension from multi-skilling was to go into a team approach. He advised that this would push the day to day decision making on to the floor. At the moment it was done in the production office but Mr McNamara felt that the people on the floor were able to make the day to day decisions. Mr McNamara went on to advise that the "team approach" was a big step and could only happen once multi-skilling was in place. It was noted in the minutes that "I. McN advised we will put on the next Agreement reference to the Metal & Engineers State Award. PT advised we are waiting confirmation from The Employers Federation that there is no conflict. SJ commented that if the Fitters want to be part of this they have to understand that majority rules." 68 The Consultative Committee met next on 4 June 1999. It would appear that this was the first occasion on which Multi-Fill encountered opposition to the concept of multi-skilling. Present at the meeting were Mr Burger, Mr Toole, Mr McNamara, Mr Jovanovski, Mr Falls, Ms Nagy, Mr Lord and Mr Gray. The meeting discussed hours of work and then progressed to the topic of multi-skilling, which occupied the remainder of the meeting. The minutes noted, in part: I. McN has a document that will be the talking point, which is a first draft, and we can then modify accordingly. I. McN will have this distributed and would like input from everybody. A lot of this is new to most people and they will not understand it. PB suggested everybody here read it and ask I. McN anything that is not understood. I. McN feels this is a good 12 months away because there is a lot of training involved but it gives us a target. 69 The document referred to as "a first draft" in the above extract from the minutes was not attached to the minutes of the meeting exhibited in the proceedings. Nor was there any other evidence given as to the document. It would appear that the meeting on 4 June 1999 was the first meeting of the Consultative Committee which Ms Nagy attended. It was noted in the minutes that she advised the meeting "that there are quite a few women that are not interested in multi-skilling". The minutes then noted as follows: I. McN advised we accommodate for this. We cannot have everybody multi-skilled because we have to keep the skill up. SJ asked, "If there is a reward for multi-skilling will the people that are not multi-skilled understand that there are no $ there?" SJ asked PN to pass this on that if they are not interested then they will not be rewarded. SJ advised people need to be made aware of this so there are no complaints later. PN commented that people could not expect more money if they are not interested. 70 Mr Toole, Mr McNamara, Mr Falls, Mr Gray and Mr Lord were present at the Consultative Committee meeting held on 22 July 1999. Mr Ivancic from the NUW attended the meeting by invitation (he had attended the previous meeting on 24 June) and apologies were recorded from Mr Burger, Ms Nagy and Mr Jovanovski. Given Ms Nagy and Mr Jovanovski's non-attendance at the meeting there was no feedback from the process workers on the draft level structures. Much of the meeting involved the warehouse employees' response to the draft document provided at the previous meeting. Mr McNamara stated in relation to the proposed level structures that it was a "win-win" situation and Multi-Fill would enable the employees to become more skilled and they would then be able to use those skills either at Multi-Fill or elsewhere. It was recorded in the minutes that Mr Toole confirmed that much of what Multi-Fill was proposing was already in the Award. Multi-Fill was "just looking at where we are now, where we should be and where we want to be. We will provide all appropriate necessary training and time to do this." The discussion on level structures concluded with Mr McNamara issuing "new job descriptions for review." The job descriptions were not included in the minutes of the meeting. 71 The meeting then proceeded to discuss the issue of a wage increase. Mr Toole stated that "We have heard from you now and we have said all along that we need to fund this in some form, thus reviewing these levels and structure we need to end up with more skill and a better workforce. It is going to involve some training. This incorporates a few things." The minutes recorded Mr Ivancic's suggestion that it "is best to get the document governing the terms of employment and then the parties can quantify this." He felt that once there was an agreed position on a draft document they could discuss wages. 72 The sole item for discussion at the next meeting of the Consultative Committee held on 29 July 1999 was the employees' response to the proposed level structure. Present at the meeting were Mr Toole, Mr McNamara, Mr Lord, Ms Skillman, Mr Falls, Mr Jovanovski and N. Wilkinson. There was no evidence as to which area N. Wilkinson represented. Mr McConville attended the meeting by invitation. Apologies were recorded from Mr Burger, Ms Nagy and Mr Gray. It was apparent from the minutes of the meeting that there was a resistance from sections of the workforce to the proposed levels. It also appeared that there was some confusion as to the relationship, if any, between a pay increase and acceptance of the proposed levels. Multi-skilling was considered in a number of different ways, including employees simply acting in higher duties as well as the notion of acquiring further skills in the context of the proposed classification structure. The incorporation of aspects of line Quality Control onto the process line was also raised at this meeting. 73 It was recorded in the minutes of the meeting held on 29 July 1999 that the discussion on the levels structure opened with Mr McNamara asking whether there had been any further discussion regarding the issue. The minutes showed that Mr McConville's response was that employees on the floor were not interested in the levels and were happy with the levels the way they were. He stated that "This is causing unrest already with the people on the floor. If you want harmony in the workplace, this should not be brought in." I note, however, that the minutes of the subsequent Consultative Committee meeting held on 9 September 1999, showed that at the commencement of that meeting Mr McConville disputed the minutes of the meeting on 29 July 1999. He is recorded as having informed the meeting, in relation to the previous minutes, that he had not had a problem with the classification structure, but had difficulties with the multi-skilling element of incorporating line Quality Control into the line operation. I now return to the meeting on 29 July 1999. The minutes noted that Ms Skillman advised the meeting, apparently in response to Mr McNamara's request as to any further discussions regarding levels structure, that "the women are not interested. They want a pay rise first and then discuss the multi-skilling." Mr Toole responded by asking "How is the pay increase going to be funded?" 74 Mr McNamara, at the meeting on 29 July 1999, did give some further insight into Multi-Fill's proposal with regard to multi-skilling. The minutes of the meeting recorded the following: I. McNamara feels there is a communication breakdown here. The people will not have to take on more work. We are proposing to have one of the Line QC Operators go back to the line to become a Level 3 Packaging Operator. If you look at the job descriptions at Level 3 and above you perform Line QC tasks. Hopefully we would have 6-8 ladies to perform Line QC checks and they would be a Level 3 pay rate. I.McNamara wants to hear from the people and wants to respond to any queries. I.McNamara may be able to satisfy concerns. R. McConville advised the company have been told what they are saying from the representatives here. I. Falls advised that the people want some sort of pay increase. 75 In the same meeting Mr McConville is recorded as stating that "the people are very restless out there." Mr Toole in turn commented that "we need to further explain and get some feedback. We may come away with some valid points." 76 The Consultative Committee next met on 9 September 1999. Present at the meeting were Mr Toole, Mr McNamara, Mr Lord, Mr McNamara, Mr Burger, Mr Falls, Mr Jovanovski, Ms Nagy, Mr Gray, and J. Hughes. Also present by invitation were Mr McConville and Mr Ivancic. It appeared from the minutes of the meeting that the only item discussed was "Review and Consider Revised Enterprise Agreement". In relation to this item, the minutes noted that, at the commencement of the discussion, Mr McNamara "distributed a draft Enterprise Agreement for review." It was noted in the minutes that there were changes to the draft document which the meeting then discussed in some detail. The minutes did not, however, contain a copy of the draft document. The topic of wage increase was included in the context of the draft document. The actual amount of the increase was not stated in the minutes but was referred to as working out "to be approximately 4% over 2 years." No agreement was reached as to the increase, although the consensus of the employee representatives appeared to be that it was insufficient, and the minutes indicated that it would be referred back to the employees for their consideration. The minutes recorded that the meeting concluded on the basis that Mr Ivancic and Mr McConville were to have a meeting "with the people and respond to the company in writing before the next meeting so we are not wasting time." 77 The meeting on 15 September dealt with various aspects of the proposed enterprise agreement. Both Mr Jovanovski and Ms Nagy of the Consultative Committee attended. Those persons again attended a Consultative Committee meeting on 23 September, together with P. Toole, P. Burger, R. Lord, I. McNamara, I. Falls, P. Gray and J. Hughes. At this meeting the company representatives made it plain that they linked any wage increases offered to multi-skilling. It was recorded: P. Toole commented that we have a number of aspects. One of the things we have said is that we must see some change or improvement in our method of work. What we have heard at meetings, is that the people want no connection to the job descriptions or levels. We need to move forward. R. Lord advised we are willing to accept the descriptions. J. Hughes commented that we are the people with the skills and you have the management skills - we should be able to do this together. I. McNamara advised there was a draft document that went to the people a number of times and it can always be altered. P. Toole commented that when talking about wage increases we are talking about co-operation. We are talking about phasing in with the multi-skilling. What we are proposing is nothing new. There are companies in our industry that currently do this. We feel that if we do not introduce this we will be left behind. P. Burger had a discussion here on Tuesday morning and he outlined to you where we were and that we have a survey of our industry and in fact the pay structures are not uncompetitive, At the end of the day we are contract aerosol manufacturers and this is who we are competing against. We need to be competitive. 78 A meeting was convened on 7 October 1999. Mr Jovanovski and Ms Nagy attended together with other employer and employee representatives. Mr McNamara distributed a draft enterprise agreement. Various aspects of the draft were discussed and J. Hughes indicated that a mass meeting had been held on 6 October and rejected an earlier form of the agreement. There appeared disagreement at this meeting over whether this agreement would operate retrospectively (or in turn whether the wages offer should be improved if there was inadequate retrospectivity). Ms Nagy is recorded as advising that "on behalf of the women they reluctantly agree." Nearing the close of the meeting a Multi-Fill representative improved the wages offer to $15.00 for the first year of the agreement and $13.50 for the second with an operative date of 1 July 1999 (the ultimate provision in the 1999 agreement). This appeared to have removed opposition to the agreement, subject to a meeting of members of unions. The meeting closed with Mr Burger indicating that "Ron and John" (presumably the union organisers for the AWU and NUW respectively) would need to be advised that the agreement should be signed in the next two weeks (that is, by about 21 October 1999). 79 There was evidence that a meeting of the Consultative Committee took place on 7 December 1999. No evidence was given, however, as to any minutes of that meeting. The only matter which appeared to arise from the meeting was the memorandum to which I refer to below. 80 On 7 December 1999, a memorandum on the letterhead of Multi-Fill and signed by S Jovanovski. R McConville, J Hughes, T Blaker, K Griffith and WP Dennehy (both K Griffith and WP Dennehy subsequently left the AWU and joined the AMWU) was issued. The memorandum was in the following terms: We the undersigned have reached an understanding that the attached document contains wording which is agreed in principle. The recommendation of the signatories is that it will be ratified as an Award dependent on the outcome of a meeting of all employees. If the meeting accepts the recommendation the document will proceed to the Commission to be ratified as an Award. Should the meeting reject the recommendation, discussions will continue to resolve the matter. In all events either an Award or an Agreement need to be ratified in the Commission. 81 I make the following findings of fact in relation to the negotiations of a 1999 enterprise agreement: 1. A Consultative Committee was established to develop a new enterprise agreement (and thereby review the 1997 agreement and 1995 award). This was entirely consistent with the objects of the Consultative Committee provisions of the 1995 award (see Attachment B). 2. The employee members of the Committee were regularly elected in accordance with the requirements of the award. The faint contrary suggestion in the evidence is not sufficient to displace the presumption of regularity, particularly in the light of direct evidence of an election having been held and the results being published. 3. There were thirteen meetings of the Committee to discuss a new agreement (including a meeting on 7 December 1999). There was no issue raised as to proper notice being given for the meetings. Records were kept of those meetings. There was no dispute as to their accuracy. The minutes of the meetings were posted on two accessible notice boards for employees shortly after the meetings. Both the manner of posting and the contents of the minutes conformed with the requirements of the award (see cl 10, Attachment B). In addition, Mr McConville held report back meetings with members, Ms Nagy was charged with the role of communicating the progress of the Committee's deliberations and employees were given the opportunity to attend meetings (which they took from time to time). 4. Further, there were very substantial discussions in the Committee as to the terms of the proposed agreement with proposed terms and clauses for new provisions being discussed in detail. 5. In short, there was an effective and comprehensive process of consultation, negotiation and communication with employees both through and arising from the Consultative Committee process as to the proposed enterprise agreement. 6. At the conclusion of the process, it was agreed in the Consultative Committee that changes would be made to the 1997 agreement. This included a wage increase which applied retrospectively. 7. Multi-Fill sought, through the Consultative Committee process, an agreement to improve skill levels of employees. This involved varying concepts during the meetings, including the introduction of new positions with skill descriptions and the engagement of production employees in quality control work. Both concepts were described as multi-skilling. These were reported to the Committee and those attending had a perception that there was some resistance to such changes (although there was initially some general acceptance of the notion). There seemed to be particular resistance to the new classification levels, which were not pursued by Multi-Fill at the end of the day. 8. However, the introduction of multi-skilling became linked in the discussions to the wage adjustments. Multi-Fill had the view that wage increases needed to be supported or funded by a better skilled work force. 9. It was clear from the minutes of the Consultative Committee meetings and Mr McConville's evidence (which I partly set out below), that the Consultative Committee reached a conclusion that a new agreement would be made which would produce a retrospective wage increase in conjunction with the introduction of multi-skilling (in the form of the incorporation of quality control functions into the duties of production workers). This outcome, as stated by Multi-Fill during the meetings, was already contemplated under the 1995 award and the 1997 agreement. However, Multi-Fill made it clear it intended to act upon those provisions when they were repeated in the 1999 agreement. This was, in my view, what was contemplated by the memorandum issued on 7 December (particularly when considered in the light of the accompanying draft agreement and the evidence of the contents of the Consultative Committee meeting held on that day). 10. It was also clear that Multi-Fill intended to bring about multi-skilling by training employees in the new skills. 82 Mr Harris raised an issue in his evidence as to whether the AWU had convened a meeting on or after 7 December 1999 to consider the agreement recommended by the Consultative Committee. The AMWU maintained in submissions, albeit unclearly, that no agreement was reached in December 1999 as to the proposed agreement accompanying the memorandum of 7 December 1999. Ms Terpstra was asked by the Commission whether it was the AMWU's contention that an agreement was not reached between the AWU and Multi-Fill in 1999. She responded: "Well again we would dispute that on the basis of the conduct of our members in the work place raised at the Consultative Committee meetings, and certainly there was no registration at the subsequent meeting - we would say no agreement." I do not accept Mr Harris' evidence to the extent it was suggested no meeting was held to consider the proposed agreement. Nor do I accept that the meeting failed to approve the proposed agreement. I consider the above contentions by the AMWU to be erroneous. 83 I shall firstly deal with such evidence as may support such a contention. It is true that Mr Harris disputed that the meeting of the employees actually took place to consider the recommended agreement and that employees of Multi-Fill voted upon and passed that proposed agreement. During cross-examination by Mr Tripodi, Mr Harris gave the following evidence : Q. Yes but you do accept, don't you, that there were employees who are now members of the AMWU who sat upon the negotiating committee for the 1999 enterprise agreement which was subsequently passed by the employees? A. Well, the information that I have to that is that it wasn't passed on to the employees because they never went to a mass meeting for it to be voted upon. Q. Are you disputing the fact that it was voted upon and passed? A. Yes. However, Mr Harris had no direct knowledge underpinning this assertion. 84 Ms Sue Moore was called to give evidence by the AMWU. She was asked in cross-examination whether she remembered a general meeting of employees in late 1999 (where Mr McConville addressed employees on a proposed agreement and that agreement was put to a vote and passed). Ms Moore replied "I can't really remember. I don't really recall that." Ms Moore attended as an observer a meeting of the Consultative Committee held on 3 February 2000, which I refer to further on, where multi-skilling and the agreement recommended by the Consultative Committee, including the wage increase provided in the document, was discussed at considerable length. The minutes of the meeting show that whilst Ms Moore was opposed to multi-skilling and stated that the process workers understood the wage increase was "just like the national wage rise", at no stage during the meeting did she actually dispute either the validity or the provisions of the agreement discussed at the meeting which had been recommended by the Consultative Committee. Ms Janet Howe, a witness called by the AMWU, did give affidavit evidence that "there were a number of meetings during 1999 and 2000 to discuss the enterprise agreement. During those meetings our concerns about the agreement were never addressed." In cross-examination by Mr Tripodi, however, she agreed that, in late 1999, Mr McConville addressed a meeting of employees on the contents of an agreement and that at the meeting it was put to a vote and passed by the employees. Whilst she recalled that the meeting had taken place, when it was put to Ms Howe by Mr Tripodi that at the meeting Mr McConville spoke "about things like, you know, multi skilling and training and wage rates, etc…" her response was that she could not remember "the exact things that were said in that meeting. I mean it is two years ago." 85 Mr Gray admitted during cross-examination by Mr Tripodi to there being a meeting of employees in late 1999 to deal with the 1999 Agreement and he recalled that Mr McConville went through the Agreement in detail. He was asked by Mr Tripodi whether he remembered Mr McConville at that meeting "talking about things such as multi-skilling and training and wage rates" and his response was, "Not that I can recall." Mr Gray was then asked whether it was possible that Mr McConville spoke about those things and Mr Gray replied, "Anything is possible in that place." 86 In contrast, there was overwhelming evidence that a meeting of employees accepted the recommended agreement. In his affidavit, Mr McConville deposed in this respect, that: In late 1999 there was a full meeting of members and other employees at which I went through the 1999 Enterprise Agreement document in detail noting various aspects of the Agreement including multi-skilling, training and wage rates. The document was put to a vote and passed by a majority of the employees present. 87 Later, during Mr McConville's evidence-in-chief, he gave the following evidence: Q. And the final agreement that was struck, that ( sic ) that include an aspect of multi-skilling? A. Yes, it did. Q. Was there a meeting with employees as to the terms of the 1999 agreement that was struck? A. The document that had been reached was that there was a mass meeting called and I went through the full documentation of it with all the people there. They were all there from both unions. I read the document from front to back, which is part of my obligation to make sure that they understand what is said. I did have a reservation on the pay rates but that was the pay rates we could get. Q. And in the end was a vote put on the document, on the terms of the document? A. There was a vote taken. Q. What was the result? A. It was a majority rule and had been passed so- I think there were about three dissenters, that was all. 88 Mr McNamara gave evidence that on 7 December 1999 the Consultative Committee "agreed in principle to the wording of an enterprise agreement". Annexed to Mr McNamara's affidavit was a copy of the memorandum dated 7 December 1999 signed by the Consultative Committee together with the 1999 agreement which he deposed had been agreed to in principle. He stated that on 7 December 1999 a "meeting was also held with all the employees of Multi-Fill, except those in clerical and administrative functions". He was present at the meeting. He said that he recalled Mr Toole saying words to the following effect at the meeting: There are attachments to this agreement. It's to do with multi-skilling and in particular integration of line QC into the production lines. That will involve training. 89 Mr McNamara deposed that it was his "understanding that the employees accepted the terms of the 1999 enterprise agreement in the meeting on 7 December 1999." He was asked in cross-examination "who advised you that there was general agreement about the terms of that 1999 award?"; he responded that he "had a union organiser sign off on the document and the consultative committee also signed off on the document. There was a letter of intent to go to the end where we would get the document registered. However, that took place in December 1999. In January 2000 I started to talk about how we would implement the line QC integration to the packing line. That is when the representatives on the shop floor objected, basically at that point we lost approval." 90 I prefer the evidence of Mr McConville and Mr McNamara over the evidence of witnesses called for the AMWU as to the meeting on 7 December. They gave evidence of their direct observations of the meeting which, consistent with their evidence generally, was given in a clear and forthright manner. From my observations of them, and by the examination of the transcript of their evidence, I consider them to be witnesses of credit. Their evidence is consistent on this issue. Further, neither Mr McConville nor Mr McNamara were cross-examined as to whether the meeting had taken place or, if a meeting was convened, whether those attending had approved the 1999 agreement. 91 Whilst the parties did not raise the issue, I have also taken into account, in assessing issues raised in relation to the meeting, that there existed some differences between the versions of the 1999 agreement exhibited in these proceedings (the version accompanying Mr McNamara's evidence which is annexed to the memorandum of 7 December 1999 - annexure M of exhibit 51 and the version accompanying Mr Jovanovski's evidence - exhibit 30). I consider that the document accompanying Mr McNamara's evidence represents the form of the agreement which was reached between the parties. The references in clause 3 to various awards in that version are accurate (at least one such reference in exhibit 30 is erroneous) and exhibit 30 omits the wages schedule; which wages schedule (in exhibit 51) reflects the wage variations proposed in both versions of the agreement. The differences do not warrant any contrary conclusion as to the issue of a meeting approving an agreement. The different forms of the agreement produced to the Commission do not affect the evidence that a meeting was held and that the meeting considered an agreement (and approved it). Further, the differences are relatively minor and seem to reflect merely some refinements in the final drafting of the agreement (see clauses 3, 14, Table 1A and Table 2). These were, no doubt, refinements which could have been made to the document in the event that subsequent events involving the AMWU did not affect its ratification. I note that Clause 17 largely reflects the previous classifications structure. It should also be remembered that the 1999 agreement was in very similar terms to the 1997 agreement, so that employees, when considering the agreement, were reviewing a familiar document. 92 I find that on 7 December 1999 there was held a meeting of the employees of Multi-Fill, other than clerical and administrative employees. Those employees were members of the AWU and NUW. The employees were addressed by at least Mr McConville and Mr Toole. Mr McNamara attended the meeting. He may have also addressed the meeting. Mr McConville had those employees consider whether they would accept an enterprise agreement, the terms of which arose from the recommendations referred to in the memorandum of 7 December 1999. He took the employees to the document in detail - indeed he read the document in its entirety. During the meeting of union members references were made to multi-skilling (and, in particular, the integration of line QC functions into the duties of production line workers), training and wage rates. Mr Toole specifically identified that the agreement contemplated the introduction of QC functions into the production lines. It is a reasonable inference that Mr McConville also raised that matter at least in relation to the terms of the agreement. It is also a reasonable inference to be drawn from the evidence that Mr McConville recommended the agreement. 93 I consider that the members of the unions were properly informed as to the contents of the proposed agreement and understood it (noting that it was in similar terms to industrial instruments existing since 1995). The meeting of union members voted to accept an agreement (with a small number of employees, about three in number, dissenting). I have no reason to doubt that the meeting was properly constituted, attended by all or a very substantial number of the members of the AWU at the workplace and represented the expression of opinion of the members of the AWU that the union should enter into the agreement and to take such steps as the Consultative Committee recommended to give it legal effect. I note that there was no contention in the proceedings that the meeting was not properly constituted, nor was there a submission that the vote of the meeting did not reflect the view of the members of the AWU at that time. In any event, an application of the presumption of regularity (which is appropriate to be applied in these circumstances), would mean that, in the absence of evidence to the contrary (which does not exist), the vote there taken was regular and effective for all relevant purposes. Thus, the consultative process was successful in producing an agreed basis for the improvement of the terms and conditions of employees and, in particular, wages, and a basis for improved workplace efficiencies, namely, the introduction of multi-skilling. The agreement was not, however, formally executed and ratified under the 1996 Act (which probably accounts for the marginally different forms which came before the Commission). This was, in my view, at least partly a result of the events that occurred after 7 December 1999. Nevertheless, as I will now discuss, there was an arrangement reached between Multi-Fill, the AWU and its members, in 1999 extending the earlier agreement in 1997. That arrangement involved improved wages and a reiteration of the multi-skilling provisions (but with the plain advice given by Multi-Fill that it would move to give effect to those provisions and introduce multi-skilling in consequence of that arrangement). 94 The 1999 agreement was in similar terms to the 1997 agreement, but did involve some changes, the most significant of which were: 1. A shift work clause was introduced. 2. There were two increases in rates of wages agreed "as a result of introduced Job Descriptions and added responsibilities contained." 3. The protections offered by clause 15 were extended. 4. The bonus scheme was removed (Attachment C was deleted). 5. The attendance bonus was improved in clause 23. 6. There were refinements to the annual leave provisions. 7. The agreement retained the multi-skilling provisions (as I have observed, particular notice was given to employees about their implementation during the course of considering the proposed agreement). 8. The agreement referred to the Metal & Engineering Industry (NSW) Interim Award and "maintenance fitters" or "fitters". However, it is not clear on the evidence what function these would serve, having regard to the fact that Multi-Fill did not employ maintenance fitters (or another classification of work which any party identified as being caught by that award) at this or any subsequent time on the evidence. It should be noted that there is an earlier finishing time in relation to the maintenance area. 95 Ms Terpstra also submitted that the existence of the two unregistered agreements increased the potential for industrial disputes as the employees had not had the benefit of the agreements being tested by the legislation, namely, a test of net detriment. She submitted the lack of registration also inhibited the ability of employees to pursue claims before the Chief Industrial Magistrate in the event of a dispute over under-payment. 96 I consider that there are some considerable weaknesses in these contentions. Firstly, the 1997 and 1999 agreements did not represent a net detriment to employees. The agreements provided for substantial wage increases and some improvements in conditions. I have earlier discussed the 1997 agreement in this respect. The 1999 agreement eliminated the bonus scheme but there was no evidence of that change directly resulting in any detriment to employees. There were substantial wage increases afforded. Any requirement for multi-skilling which was envisaged in the addresses given to the meeting of union members on 7 December 1999, by the changed preamble to the wages clause and the maintenance of clauses from previous awards and agreements, did no more than confirm, in my view, that which had been in contemplation since the 1995 award. Secondly, whilst the agreements were not made enforceable under the Act, the parties treated the agreements for all intents and purposes as binding upon them. There could be no reasonable apprehension that the agreements would not be fully applied. Indeed, the only resistance to the full implementation of the 1999 agreement came out of the AMWU. The agreements arose from a process of consultation supported and encouraged by Multi-Fill (and envisaged by the 1995 award). The agreements were approved by members of the AWU and NUW, and applied in their terms by the employer. I note that the workforce ultimately received the benefit of wage increases under the agreement (although, as I will now discuss, there was interference with the introduction of multi-skilling). The 1995 award underpinned the agreements. They were, in essence, overaward payments derived from collective agreements and, to that extent, commonplace in industry. Whether the agreement constituted a contract is, in my view, immaterial in these proceedings. That issue was not the subject of argument. At the very least there were arrangements between Multi-Fill, the AWU and NUW in 1997 and 1999 which supplemented and improved the 1995 award. The agreement reached at the end of 1999 shall be referred to as "the 1999 agreement". Aftermath of the 1999 Agreement 97 Mr McNamara gave evidence that shortly before Christmas 1999 all the employees were paid the initial wage increase of $15.00 per week in accordance with the 1999 agreement. 98 I have already referred to Mr McNamara's evidence that in January 2000 he began to talk about implementing the line QC integration to the packing line. According to Mr McNamara, it was then that the representatives on the shop floor objected. No evidence was given by Mr McNamara as to the reasons for their objection in January 2000. Mr McConville suggested that part of the "objection" related to the prospect of Quality Control employees being required to return to some "line work". However, I consider the real gravamen of the issues was disclosed in the evidence of Mr McConville during cross-examination as to the concerns of the employees: Q. How were those concerns addressed? A. I had phone calls that were sent to me on my message bank that I returned. I had spoken to Sue Moore, who was one of the people to ring me that said that the lady did have a concern and could I ring her at her home address, which I did, I returned her call. Q. After these telephone calls took place, isn't it the case that those persons are still dissatisfied with multi-skilling? A. Yes, they are but, as I said before, when I mentioned it to them that was a part of the vote that they had taken and they were brought to it and the majority rules. That they agreed under the enterprise agreement to do multi-skilling. Q. Isn't it your role as an organiser that when the majority of workers on the site are dissatisfied because they have concerns, isn't it your role as an organiser to advise management that they have concerns.? A. As I said before, I did bring it to the attention of the company but in the first year there were no concerns about multi-skilling at all. Q. I put it to you, Mr McConville, in fact the reason why people still have concerns is because they haven't been addressed? A. What do you mean they haven't been addressed? Q. There were concerns raised by members that haven't been addressed. Isn't it the case that those members still hold concerns about multi-skilling today? A. My understanding is there are still people who are prepared to do multi-skilling and there are other people who are not. 99 A meeting of the Consultative Committee took place on 3 February 2000. The meeting was taped. This caused some disquiet in the proceedings and it may, therefore, be appropriate to briefly deal with that matter at this juncture. According to Mr McNamara the taping had occurred with the consent of all persons present. Ms Terpstra, during the cross-examination of Mr McNamara, asked why it had not been indicated in the meeting that consent had been obtained. Mr McNamara's evidence was that he did not know why it had not been indicated at the meeting but he affirmed his evidence that consent had, in fact, been obtained. 100 There was also an issue raised by Ms Terpstra during her cross-examination of Mr McNamara as to why, at the commencement of the Consultative Committee meetings held on 3 February, 1 June and 3 July 2000, the minutes of the previous meetings were not noted as being confirmed or as being a true and accurate record of the previous meeting. Mr McNamara's evidence was "that was just our normal practice" and the validity of the minutes could always have been challenged at the next meeting. He also gave evidence that to the best of his recollection the minutes were accurate. He testified that the minutes were circulated to members of the Committee, prior to them being posted on the notice board. He also stated that there was an opportunity at the beginning of each meeting to confirm the minutes, although that opportunity was not recorded in the minutes. 101 It would appear from the minutes of the meetings of the Consultative Committee held in 1999 that the approach adopted at the meetings to the minutes of the previous meeting was inconsistent. Some of the minutes contain no reference to the minutes of the previous meetings whilst others refer to the previous minutes as being "accepted" or that there "were no objections with the previous minutes." Nonetheless I consider the evidence reveals that the minutes of the Consultative Committee meetings were accurate. 102 It was not put directly to Mr McNamara that the minutes of the meeting were inaccurate. Neither Mr McNamara nor Mr Jovanovski, who were both present at the three meetings, were cross-examined as to whether the minutes of the meetings were inaccurate. Mr Jovanovski exhibited the minutes of the meeting to his affidavit and deposed that "These documents speak for themselves." The only evidence disputing the accuracy of the minutes was the evidence of Ms Moore who, during cross-examination by Mr Vernier, denied having made one of the statements recorded in the minutes of the meeting held on 3 February. There was no evidence-in-chief given challenging either the minutes or what was said to have occurred at the meetings. Moreover, there was no evidence adduced as to any issue being taken with the minutes when circulated to members of the Consultative Committee or posted on the notice boards. It appears that Ms Moore ultimately accepted in cross-examination that the minutes did represent an accurate transcript of what happened at the meeting of 3 February. Ms Moore's evidence was really challenging, in my view, that she had made the particular statement as opposed to disputing the validity of the minutes. I also accept that she made the statement attributed to her. 103 The purpose for the Consultative Committee on 3 February 2000 was to discuss the incorporation of line QC onto the production line. Mr McNamara noted that the 1997 and 1999 agreements both contained clauses for flexibility. Ms Moore attended the meeting as an observer. It was the only Consultative Committee meeting which she attended. It was clear from the transcript of the meeting that Ms Moore was opposed to multi-skilling. I have referred to some of the comments which Ms Moore made at the meeting later in this decision under the heading "multi-skilling", and do not repeat them here. Ms Moore also indicated to the meeting that the process workers would only undertake multi-skilling if "we want to do it and there are rewards for us doing it not for our pay rise what we got." 104 Mr Toole asked Ms Moore what the process workers' understanding was of their recent wage increase. She responded that "Their understanding was that it was just like a national wage rise." Mr Toole said that Multi-Fill had to have some improvement. Ms Nagy asked: "so by training us girls you think this will improve productivity." Mr Toole replied: "productivity and quality." Mr McNamara pointed out that what the company was proposing was that the process workers "record results" because "what we are trying to do here is to build more quality into our product and if we can show that quality to customers when they come out and audit us they say gee whiz you do a lot of inspections here." Mr Toole pointed out to the meeting that "what we are trying to do is get up to a normal situation so we can survive. We are behind already. This could have been implemented some years ago and it the only way there is. We have to have a more skilled workplace." Mr Jovanovski was present at the meeting and supported the implementation of multi-skilling. He pointed out that multi-skilling would reduce by two the number of casuals and would provide job security. He told Ms Nagy and Ms Moore that "what should happen now is that you go and tell the girls what actually happened in here and tell them what I think of it. I am recommending you do it because when it comes to the next negotiations it will be worse, because we have nothing to negotiate with." 105 At the meeting the issue of training was discussed at some length. Mr McNamara stated that "This is a simple process and I have put it together in a simple way - not a complicated way." He said that there may be people who are illiterate, but that could be overcome and, if necessary, he would seek assistance in "adult learning." If necessary, he would also prepare multi-lingual forms. According to Mr McNamara it would be "one step at a time. The first step was to introduce you to this; the second step was to trial it. Work with it individually and show you how it is filled out and explain why it is filled out. I think we have gone a long way in explaining why. All I am after is some cooperation, interaction. I don't expect to be perfect first up. Nothing ever is." 106 Ms Nagy and Ms Moore were asked to report back to the other female employees after the meeting and to try and convince them, and themselves, to at least have a look at and be shown what was being proposed by the company in relation to multi-skilling. Mr Toole explained that "What Ian is suggesting is that (sic) a trial and (sic) come closer to the physical reality of it. This is what we are asking you to convince them of." The minutes recorded that the following exchange then took place: Pat Nagy- If that's what you want us to say we will say it. Peter Toole- the words across the table get lost and they become quite meaningless after a while, The real showing will be in the physical. Steve Jovanovski- What do you personally think? Would there be benefits out of this or not? Sue Moore- No Steve Jovanovski- What do you think if you learn this as it is - do you think it would be beneficial in the long run to you or not? Pat Nagy- Your own common sense would tell you yes. Steve Jovanovski- This is what you have to say to the people out there. By way of learning this it would be beneficial to everyone. Pat Nagy- But they have their own thoughts and opinions. Steve Jovanovski- They will always express their opinions. After you express your opinion then they can do the same. Nobody has problems with that. Sue has said no and that is her opinion. But your opinion is slightly different to hers, And I believe a lot of people out there will have different opinions. Pat Nagy- I will not go against the majority. I will not go against them. 107 A further meeting of the Consultative Committee took place on 1 June 2000. The minutes of the meeting stated: "I. McNamara opened meeting and commented that we need to convene this meeting, as there is some unfinished business with the 1999 Agreement. We need to either push it through or cancel it. As a result of the Line QC stumbling block I. McNamara has not progressed this any further." Mr McNamara advised the meeting that the 1999 document provided for a pay rise on 1 July and if "there is no document there is no pay rise." He stated that the 1999 agreement had not been signed because: The girls do not want to do Line QC. What you have in front of you is only a letter of intent. Ron McConville backed down because of the girls' concerns. Ron advised G. Cook he wouldn't sign it until the matter with the girls is resolved. The "letter of intent" referred to in the minutes is most probably a reference to the memorandum of 7 December 1999. Mr McConville gave affidavit evidence in which he described the memorandum signed by the Consultative Committee as "a letter of intent to have the Agreement approved in the Commission." What was most likely meant by the phrase "letter of intent" was that further steps were required, namely, endorsement by the employees, prior to any execution of the agreement. 108 Ms Nagy informed the meeting that the girls would not change their minds and she would report back to them that unless they agreed to multi-skilling they would "forfeit their next pay rise." 109 Multi-Fill did not pay on 1 July 2000 the wage increase of $13.50 contained in Clause 14 of the 1999 Agreement. 110 The Consultative Committee held their next meeting on 3 July 2000. Mr Burger opened the meeting and stated that the only item for discussion was the current "Site Agreement." He asked for a statement on the present situation in relation to the signing of the Agreement. The minutes noted: "I. McN advised we had a meeting on 1st June to re-visit to where we did not get at the end of last year and to mention we have a July 1 date ahead of us. We need to finish off the signing of the Agreement and the stumbling block of Line QC integration. The girls are still adamant they do not want to incorporate Line QC into their job function." It was also noted in the minutes that the company had received advice that their options were - do nothing, re-negotiate an AWA Agreement or individual contracts. Mr Burger informed the meeting that if the majority of people vote to do multi-skilling: The rest of the people will need to fit in. The only way to do this is have a general meeting and have a vote. The issue first is that if the majority vote is to proceed and get the Agreement signed a meeting needs to be held with the employees and the majority vote to go ahead. 111 Just why such a meeting of employees was contemplated was not clear, except that it may have involved a process which involved the company itself convening a meeting of employees. The meeting concluded on the basis that the company would have a meeting of the Line Leaders and then a "Group Meeting." 112 There was no evidence as to any meeting of Line Leaders or a "Group Meeting" as contemplated at the Consultative Committee Meeting on 3 July 2000. Instead, on 10 and 11 July 2000, Mr McNamara conducted training sessions with six of the process workers in an attempt to implement multi-skilling. Mr McNamara had completed the "Train the Trainer" course at the Chamber of Manufacturers in 1992 and in 1996 obtained the qualification of "Workplace Training Category 1" from the Adult Migrant English Service of NSW. His evidence was that the session on 11 July was concluded early due to the employees' unwillingness to be trained. In relation to the training sessions he deposed as follows: 72. On the first day of the multi-skilling training, being 10 July 2000, I explained, demonstrated and supervised the measurement and recording of the crimp dimensions to two process workers, Christine Robinson and Sandra Grech. This training was one-on-one training. I started training Ms Grech first. Ms Robinson followed. 73. I showed Ms Grech and Ms Robinson how to take the measurements on the crimp gauge. I then watched them perform the measuring task. The results of the measurements were recorded by these employees on an Inprocess Inspection - Settings document. 74. I observed that the measurements taken by Ms Robinson and Ms Grech were correct. ... 76. During the training session I conducted with Ms Robinson and Ms Grech the following comments were made: Ms Robinson: "I don't understand it." and Ms Grech: "I don't understand the numbers." 77. Based on my skills as a trainer, I formed the opinion at the time that Ms Robinson and Ms Grech lacked confidence in understanding the multi-skilling task of reading the crimp gauge. 78. The next day, 11 July 2000, I conducted a further training session on how to read the scale of the gauge used to take the crimp dimensions to Sandra Grech, Christine Robinson, Debbie Skillman, Karen Griffith, Pat Nagy and Janet Perry (all process workers). During the course of the training session I used comparisons to a chronograph clock dial in learning how to read the gauge. The session concluded early due to the employees' unwillingness to be trained. 79. During the training session conducted on 11 July 2000 a conversation took place using words to the following effect: Janet Perry: "What happens on Line 5? We've got to read a vacuum gauge." Ian McNamara: "It's only one gauge to look at. You all drive cars don't you? Cars have gauges. You read those gauges." Employee "I don't read those, my husband (don't recall which one): does." Ian McNamara: "I might as well end this now because you don't want to do it." Employees [collectively]: "Yes, we don't want to do it." 113 Mr McNamara was cross-examined by Ms Terpstra as to the training session conducted on 10 July 2000, and the following exchange took place: Q. You also indicated the training took 30 minutes, approximately? A. Yes, each. Q. What formed the basis of the training? A. First of all, it was a demonstration from me, showing first of all Sandra - this is one on one - showing Sandra how to take a crimp dimension and what it means. I then let Sandra obtain a can, I watched her perform the task. I would have assessed her in making the reading and after what I thought was a suitable time, I let her - I left her to her own devices. So, I was in close proximity to her, probably about two to three feet away, performing the task that she would normally do at that particular station, that is, loading valves into one of the machines. Q. Did she raise any concerns during the course of that training, whether she didn't understand, wasn't quite sure how to place something? A. Yes she did. Q. What were those concerns? A. Just that she is not sure, she hasn't done it before, I merely gave her comfort, words to the effect of "Take your time, if you need more time, you will have more time." The same thing with Mrs Robinson. Q. At the end of the training sessions, did it appear that those two workers, who you showed what to do, were satisfied with your explanation about taking more time, or were they still apprehensive? A. I don't think time was an issue, but they were certainly apprehensive about the session. They appeared not to fully comprehend and that led me to the conclusion that I had to have a follow up training session on how to read the dial. Q. Did the company investigate any other type of training for the workers to undertake this type of multi-skilling, for example, accredited training TAFE courses or other courses? A. No, we didn't. 114 Mr McNamara was not cross-examined as to the conversation between himself and the process workers on 11 July 2000 referred to in his affidavit. I deal with the issue of training for multi-skilling in some detail a little further on, and do not repeat it here, other than to confirm that no evidence was called by the AMWU from any process workers who attended the training sessions on 10 and 11 July 2000. In the absence of any evidence to the contrary, I accept Mr McNamara's evidence that the training session on 11 July concluded early due to the employee's unwillingness to be trained. I also note at this stage that Ms Skilllman, a witness for the AWU, was one of the process workers who underwent the training session on 11 July 2000. She gave evidence that "Ian McNamara then approached me about becoming a line QC inspector on a temporary basis and I decided to take the offer as it pays more money." AMWU involvement: Changed Industrial Relations 115 It was shortly after the training sessions conducted by Mr McNamara in July 2000 to implement multi-skilling that the AMWU appeared in the workplace. Ms Mooney gave evidence that she contacted the AMWU in about August 2000 after a meeting of AWU members with Mr McConville and Mr Jovanovski. According to her evidence, however, AWU members had already planned to resign as Mr McConville had the resignation letters of the AWU members in hand and said: "Do you want to change your minds ... you wont be covered?" 116 Ms Mooney claimed that the meeting considered what Mr McConville said and decided to go ahead with their resignations. 117 A number of witnesses gave evidence as to when, how and why the AMWU was first contacted. The first person to contact the AMWU was Ms Mooney, who gave evidence that Ms Moore had left an AMWU card on the lunch room table with the name "Jenny" on it. Ms Mooney then telephoned and left a message for her. Ms Mooney's evidence that it was Ms Moore who left the card on the table with the AMWU details was supported by the evidence of Ms Howe. Ms Howe gave evidence that after the initial contact had been made with the AMWU she "was the one who did the contacting." 118 The evidence as to why contact was made and who first suggested the AMWU as an alternative union is less than clear. However, it was revealed by Ms Howe that she contacted the AMWU because she knew a "few good people" in it and believed it was a good union. During cross-examination by Mr Vernier, Ms Howe explained how she came to this view: Q. Can I ask why you chose the AMWU? A. Because I was fed up with the AWU. Q. But why that particular union? A. Because I know a few people who are in that union and that's a good union. Q. Is it? A. Yes. Q. And who put up the name of the AMWU for the process workers? Who suggested that? A. Well, we all got together and we wanted to know if anybody knew anybody in it and it turned out Sue did. Q. Who did Sue know? A. Well, her husband, but it wasn't nothing to do with us, but she never instigated anything, she just threw a card on the table and another girl made the phone call; Alf rang her back and then after that I was the one who did the contacting. Q. So Sue Moore was the one - - A. She was the one. Q. Her Husband's name was mentioned? A. I don't know. She just threw an AMWU card on the table and said, "That's there. If anybody wants to ring that union they can ring it", and that was it, and somebody else rang them and then Alf rang back that person and after that I was the one that was asked to do the phone calls. 119 According to Mr Harris it was "In about August 2000 the workers at Multi-Fill approached the AMWU about joining the union." 120 Ms Moore also gave evidence as to why she had chosen to join the AMWU. In cross-examination by Mr Vernier, the following exchange occurred and further, it displayed the difficulty of extracting concise explanations and answers as to the reasons for the appearance of the AMWU at Multi-Fill: Q. Can you tell me why you as a person chose the AMWU? A. Because we weren't happy with the AWU. Q. Why did you pick that particular union? A. Why? Q. Yes? A. Because that's what everyone else in the factory chose. We talked about it as a group. Q. Who put up the idea of going to the AMWU? A. Who made the phone call? Q. No, who amongst the group - ? A. All of us. Everyone agreed on it? Q. Someone would have had to raise that first up. Who was it? A. I don't know. Q. You can't remember or you don't know? A. I don't know. Q. Was it you? A. No, it wasn't me. Q. Are you sure? A. Yes I'm sure. 121 Whether it was Ms Moore who raised the idea or not, it is clear on the evidence that it was Ms Moore who placed the card of the AMWU on the lunch room table. The evidence is unclear as to who first suggested the AMWU. 122 I should note at this point that I do not consider Ms Moore to be a reliable witness. Her evidence was not given in a forthright manner and was inconsistent, She was evasive and less than frank. 123 During cross-examination by Mr Vernier, Mr Gray stated that he could not remember who introduced him to the AMWU, regardless, he would simply have "gone with the flow" of employees leaving the AWU to join whichever union had the interests of the employees in mind. The following exchange occurred between Mr Vernier and Mr Gray: Q. So you didn't know about the AMWU but you would just follow somebody else? A. I would have [to] know about it, like you don't just jump into a hot bucket of water if you don't know it's hot. Q. Who told you about the AMWU? A. I can't remember. Q. So it wasn't an important event in you life, was it? A. I believe it is, for whatever reason that plays. 124 As to the first appearance of the AMWU on site, Mr Harris gave evidence that he had a conversation with Ms Howe in which she indicated that the employees at Multi-Fill wished to have a meeting with the AMWU. Mr Harris then spoke to Jennifer Dowell, the Federal Secretary of the Food & Confectionary Division of the AMWU, and they both met with 20 employees of Multi-Fill that afternoon. During cross-examination Mr Harris gave the following details as to the discussion he and Ms Dowell had with the workers: We both met the people that afternoon after they had knocked off work and they discussed the issues and the ill feeling that they had about the way they were being represented. We spoke to them and said that "you need to have some further discussions amongst yourselves and when you are ready give us a call and we will come back and have further discussions with you. 125 Mr Harris was further asked as to the content of the employees' concerns to which he replied: The content of their concerns was the way they were being represented by the AWU. The concern was around their enterprise agreement, how they felt that they didn't get an opportunity to have a say in it and when they did approach the organiser about any issues that he said, "Well, what do you want me to do about it", or he would laugh. 126 Mr Harris then explained that the employees were concerned about multi-skilling: They raised concerns they had with it and they felt that the company was going to continue to do multi-skilling. They then said they had concerns about it because the training that had been put in place, they didn't feel it was going to be adequate training because some people had been given two hours and they said, "Off you go, that's how you've got to do it." 127 After the initial meeting on site between Mr Harris, Ms Dowell and the employees, Mr Harris gave evidence that Ms Howe called him in September and indicated that the employees wished to have a further meeting. Another meeting was then held and it was at this time that the employees stated their decision to join the AMWU. 128 Mr Harris provided a copy of the listing of financial members of the AMWU at the site which expressly indicated that the workers joined the AMWU either on 13 or 14 September 2000. The date of the meeting in which the employees stated their intent to join the AMWU was therefore sometime before that date. This was confirmed by Mr Harris during the hearing after it was suggested that the date noted on the membership list assisted in explaining what the actual date of the second meeting was. Mr Harris stated that this date did not necessarily mean the date of joining but the date that they filled out on their membership forms and it could not possibly be the date of the actual meeting. 129 Further confusion arose, however, in respect of the date of joining when one referred to the affidavit of Ms Dowell. Ms Dowell was the first contact at the AMWU and deposed that in or about August 2000 she received a phone call from Mr McNamara who informed her that he was aware the AMWU had members on site and he wished to have a meeting to discuss the union's future on site. She deposed that they arranged 10 August 2000 as the date of the meeting. During the hearing Ms Dowell stated that this meeting took place when the AMWU first enrolled members. 130 Ms Dowell then deposed that at the meeting she informed Mr McNamara that the AMWU had the majority of the members on the site and that the AMWU was not looking for "any major changes", rather, they wanted a site agreement in the same terms as that already existing. Ms Dowell further deposed that she told Mr McNamara that it was not "the intent of the union or members to cause problems, but we would want to negotiate about issues of concern to our members." 131 Mr Harris deposed that at this meeting he asked Mr McNamara whether he had "a problem with dealing with the AMWU." Mr McNamara's response, according to Mr Harris, was: "No, but what happens if the AWU and AMWU are on the site at the same time?" Mr Harris replied that the AMWU did "not have a problem with dealing with the AWU." 132 It might be noted that at this point, the only issue of concern identified between Multi-Fill and the employees was the implementation of multi-skilling. 133 Mr Harris also deposed that just before Christmas 2000, another meeting occurred in which himself and Mr McNamara were present for the purpose of discussing an enterprise agreement. Mr Harris deposed that he stated to Mr McNamara that the union was not here to make any trouble and that: We are not here to make major changes or reinvent the wheel, but we want to sit and discuss making some changes near to the current EBA that you have in place. 134 Mr Harris also told Mr McNamara that he would send a draft log of claims to the company. 135 In the context of cross-examination as to that log of claims (and the issue of multi-skilling), Mr Harris gave important evidence as to another aspect of the exchange which occurred in this second meeting between the AMWU and Multi-Fill as follows: Q. Do you recall sending an initiation of bargaining period from your office to the company? A. Yes. Q. Did anything in that deal with the question of multi skilling? A. No. Q. So you had a meeting with employees raising the question of multi skilling and you do not even refer to it in your initiation of bargaining period? A. No but what I did say to the company, Mr McNamara, that whilst we didn't have a problem if they wanted to sit around and talk about an agreement, we didn't have a problem sitting down and talking to the company in consultation, looking at multi skilling, we were not opposed to it, but we would not be party to have multi skilling as part of the enterprise agreement. Q. Despite the employees had raised it as a problem? A. Yes because I further had discussions with the employees after they said they had concerns around the enterprise agreement regarding multi skilling and I put to those employees that the place wanted to make change and multi skilling was part of the change. 136 Mr Harris further deposed that a date was set for a further meeting. Mr McNamara told him at a meeting (which would appear to be the aforementioned meeting, although this is unclear on the evidence) which took place that he would not "discuss this matter any further with you as I believe that you don't have coverage and I want you to leave the site now." According to Mr Harris, he responded that he believed the AMWU did have coverage on the basis of "the type of product you do being the bottling of vinegar, cooking oil and putting up of and crimping of cans and maintenance of the lines and the lab." 137 In any event, an unsigned notice dated 31 October 2000 was forwarded to Multi-Fill by the AMWU on 31 October 2000 purporting to initiate a bargaining period pursuant to the Workplace Relations Act 1996. A notice (dated 1 November 2000 and signed by Brian Beer, NSW State President of the AMWU) was subsequently served on Multi-Fill. The signed notice from the AMWU was addressed to Mr McNamara and was in the following terms: Pursuant to Section 170MI of the Workplace Relations Act 1996 (Cth) (the Act), notice is hereby given that the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union intends to try and reach an agreement with you under Division 2 of Part VlB of the Act and have the agreement Certified pursuant to Division 4 Part VlB of the Act. 138 Before noting the particulars of the notice, it is convenient to set out the provisions of s170MI of the Workplace Relations Act, under which the notice was issued: 170MI. Initiation of bargaining period (1) If: (a) an employer; or (b) an organisation of employees; or (c) an employee acting on his or her own behalf and on behalf of other employees; wants to negotiate an agreement under Division 2 or 3 in relation to employees who are employed in a single business or a part of a single business, the employer, organisation or employee (the "initiating party") may initiate a period (the "bargaining period") for negotiating the proposed agreement. Note: This subsection has effect subject to subsections 170MW(10) and 170MZ(7). (2) The bargaining period is initiated by the initiating party giving written notice to each other negotiating party (see subsection (3)) and to the Commission stating that the initiating party intends to try: (a) to make an agreement with the other negotiating parties under Division 2 or 3; and (b) to have any agreement so made certified under Division 4. (3) In this Division, each of the following is a "negotiating party" to a proposed agreement: (a) the initiating party; (b) if the initiating party is an employer who intends to try to make an agreement under section 170LJ or 170LL or Division 3 - the organisation or organisations who are proposed to be bound by the agreement; (c) if the initiating party is an employer who intends to try to make an agreement under section 170LK - the employees at the time whose employment will be subject to the agreement; (d) if the initiating party is an organisation of employees - the employer who is proposed to be bound by the agreement; (e) if the initiating party is an employee acting on his or her own behalf and on behalf of other employees - the employer who is proposed to be bound by the agreement and the employees whose employment will be subject to the agreement. 139 The notice then went on to provide particulars of the proposed agreement as follows: [T]he matters that we propose should be dealt with by the agreement are, in addition to the general wages and conditions applying in the Food Preservers Interim Award 1986 and the following: * A 15% per annum wage increase or proportion thereof; * 10 days paid Trade Union Training leave; * Measures to ensure that employees' current terms and conditions under all applicable awards and agreements are maintained; * Long service leave-thirteen (13) weeks after ten (10) years, pro-rata after five (5) years; * Right of entry and Shop Stewards rights; * Security of employment; * Ten (10) days minimum sick leave; * Skills training, competency standards and career development; * Paid parental leave (4 weeks); * Superannuation - requirement for payment of Superannuation at pre-injury level whilst the employee is in receipt of workers compensation payments for up to a minimum of 52 weeks; * Protection for apprentices, trainees and their career paths; * Regulation of casual and contract labour; * The exclusion of individual contracts and/or Australian Workplace Agreements; * Improved redundancy provisions (State) 4 weeks for every year of service - not capped; * Participation in the proposed portable entitlements industry fund; * No use of facilitative provisions; * Payment of all bank cheques for wages paid by EFT; * Payment of all bank charges for wages paid by EFT. * Payroll deductions for Union Fees * Occupational Health Safety, protective clothing and footwear, wash up time. 140 In addition, the notice proposed that all employees who were members of the AMWU to whom the enterprise agreement applied shall be covered by a "Sickness and Accident Income Protection Plan" endorsed by the AMWU and provided by ACTU Insurance Broking Pty Limited. It was to be a term of the agreement that the company would: (i) contribute .971% of gross weekly pay per week per member towards providing income protection; and (ii) contribute .4% of gross weekly pay per week per member towards providing Top Up Insurance Cover 141 It was revealed during cross-examination of Mr Harris that the AMWU apparently had no intention of pursuing this agreement, despite the clear intention of the AMWU, as set out in the first paragraph of the notice. Mr Harris was questioned as to this by Mr Vernier during which the following exchange took place: Q. Did you intend to make an agreement pursuant to the Workplace Relations Act? A. No. Q. You didn't. You had absolutely no intention? A. No. It was a normal log of claims. We normally send that out as it is whether it is under State or Federal. Q. Can you appreciate that that practice can be quite misleading to a company? A. Yes. Q. Yes it can, especially with a company such as Multi-Fill who has two, basically two awards under the State system, do you see that? A. Yes. Q. And you make a statement to Mr McNamara that you are not there to make major changes or reinvent the wheel yet you serve a notice where you indicate an intention to change jurisdiction? A. It wasn't an intention to change jurisdiction. Q. You never let Mr McNamara know that, did you? A. We did. We told him it was only under the State. Q. Well then, what is the point of serving a notice under the Workplace Relations Act ? A. It is our normal standard claim. 142 Ms Dowell was cross-examined by Mr Vernier on the intention of the AMWU in serving a notice purporting to initiate a bargaining period as follows: Q. When the AMWU serves a notice purporting to initiate a bargaining period, is it the intention or was it of the AMWU to pursue a Federal Agreement? A. Not necessarily. In some cases it is. Normally it is but we have used it in the past simply to notify companies that we actually want to sit down and have discussions and as a result of those discussions it has sometimes been the outcome that we have ended up with a State registered agreement rather than a Federal registered agreement. ... Q. Is it often the practice of the AMWU to serve a notice purporting to initiate a bargaining period for the purposes of taking protected action? A. Obviously that's the intent of the Act, so obviously given the scope of the AMWU's coverage there's many occasions on which that has actually been done as part of the normal procedure. Q. And on some of those occasions you might not end up with a Federal agreement but with a State agreement? A. Occasions where we initiate a bargaining period the outcomes always depend on the negotiations on site. It may be that protected industrial action is taken but in many cases it is not, and in some cases it has been my experience that because of a preference of the employer or the employees on site, or both, that we determine to have a State registered agreement as opposed to a Federally registered one. 143 Mr Harris conceded that some of the demands made in the log of claims were quite substantial changes. The following exchange took place between Mr Harris and Mr Vernier in relation to the changes sought in the log of claims: Q. Mr Harris, do you still stand by what you told Mr McNamara that you are not here to make major changes of reinvent the wheel? A. Yes. Q. Yet you have made these exorbitant demands on the company? A. It is the standard claim to initiate a bargaining period. I clearly said to Mr McNamara we were not going to reinvent the wheel, we were quite happy to sit down and make some changes, to sit down to talk about the agreement, not all of those, just about initiating the bargaining period, for the company to sit down and talk to us about it. 144 Thus, after allaying the company's fears of changes in matters already agreed upon by stating they were not going to "reinvent the wheel" or make any major changes, the AMWU proceeded to serve a notice pursuant to s170MI of the Workplace Relations Act. As can be seen from the terms of that section noted above, the purpose of the notice is to initiate a bargaining period. Under s170ML the period is one within which the union or its individual members may, subject to the section, and for the purpose of supporting or advancing claims made in respect of the proposed agreement, organise or engage in industrial action directly against the employer. By the terms of s 170ML(2) that industrial action is protected action. Mr Harris admitted that there was no intention to pursue the making of an agreement under the Workplace Relations Act and, when questioned by Mr Vernier, justified the notice as being a standard log of claims served for the purpose of beginning discussions with the company. 145 It was the case, however, that Mr Harris and Ms Dowell had already informed the company that they would be entering into discussions in regard to members concerns and would be seeking an agreement either in the same terms as that already made or with some changes that were not "major". In that sense, there was little need to serve the notice pursuant to s170MI. In the context of there being no intention to pursue a federal agreement one can surmise that the notice was served in order to engage in protected industrial action. So much so was conceded by Ms Dowell in the extracts from her cross-examination set out above where she stated that on many occasions the AMWU had served a notice for the purpose of taking protected action. It should be noted that shortly after serving the notice, AMWU members at Multi-Fill engaged in industrial action. 146 The content of the log of claims sought to significantly alter the terms and conditions of employment already in place at Multi-Fill. Yet the only specific issue that the employees appeared to have raised with the AMWU, at their meeting with its officers was a concern as to the introduction of multi-skilling. That issue was not specifically addressed in the log of claims, although a generic claim is made in relation to skills training and competency standards. In fact, Mr Harris conceded in cross-examination, the log of claims did not deal with the question of multi-skilling. Further, the log of claims accompanying the notice raised a range of issues which, on the evidence, were not discussed with the employees before hand. The issues raised by employees with the AMWU as to the 1999 enterprise agreement concerned an absence of communication. The notice not only contained a claim for a substantial number of new conditions, but also sought to impose those conditions on top of those found in the Food Preservers Interim Award 1986, an award which had never been considered to apply to Multi-Fill's operations. In effect, the notice gave the impression that there was to be a complete alteration in the working conditions at Multi-Fill, yet, as earlier mentioned, apparently the AMWU had absolutely no intention of following this through. 147 Whatever purpose the notice and log of claims may have served in the ordinary course of the AMWU negotiating with employers (it was described as a 'standard log'), it served no proper purpose at Multi-Fill. In view of the earlier assurances given by the AMWU, it was, as conceded by Mr Harris, misleading. However, it also had the enormous potential to disrupt industrial relations at Multi-Fill. The log of claims offered a real potential to agitate claims over matters then settled in the 1999 agreement and to stimulate industrial disharmony on that basis. 148 At the time Mr Harris received the members' complaints, it would appear that he was not aware of the 1999 Agreement or the consultative committee meetings leading up to its general acceptance by the employees. This was evident during the following exchange in his cross-examination by Mr Tripodi: Q. Can I take you to paragraph 9 of your affidavit, the same affidavit? Can you just read that first sentence to yourself? (Witness complied). You know that there was an enterprise agreement negotiated in 1999 between the AWU and the company? A. At that stage, no. (In paragraph 9 of his affidavit sworn 16 February 2001 Mr Harris deposed as to the meeting he had with Mr McNamara "Just before Christmas 2000" to which I have referred earlier.) Q. So you have no knowledge of that? A. No. Q. Can you tell us in any depth - can I just say, Mr Harris, that you have told us that the employees had a problem with the enterprise agreement, the way it was being handled and you just told is now you were not aware there was an enterprise agreement in place? A. That's right but the enterprise agreement that we had knowledge of was the 1995 one and not the 1999 one at that stage. Q. So you are saying there were problems with the 1995 agreement? A. There were and that was in regards to when the people had concerns about the multi-skilling. Q. So are you telling us that for four years, four or five years in fact there was an enterprise agreement award, and I take it you are referring to the enterprise agreement award 1995, in operation and it took five years for the employees to raise any concerns they had about it with someone like yourself? A. Yes. They raised concerns they had with it and they felt that the company was going to continue to do multi-skilling. They then said they had concerns about it because the training that had been put in place, they didn't feel it was going to be adequate training because some people had been given two hours and they said, "off you go, that's how you've got to do it." … Q. Are you aware that employees who are now members of the AMWU sat upon the consultative committee which negotiated the 1999 enterprise agreement? A. Later on I learned that there was a consultative committee in place, that there were discussions about the 1999 agreement and then further after that the 1999 agreement was flushed out on the basis employees further had discontent in the way it was handled and that they never had any opportunity to vote upon the agreement. 149 It was alleged that shortly after the AMWU presented itself on site the members of the AMWU at Multi-Fill engaged in industrial action on 8 November 2000. Mr Harris' evidence was that the members of the AMWU at the site had a stop work meeting to discuss the enterprise agreement negotiations. 150 On 9 November 2000, Multi-Fill filed a 'Notification to Industrial Registrar of Industrial Dispute Pursuant to section 130' of the 1996 Act. The notification of dispute provided, in part, as follows: (a) Multi-Fill is bound by the Multi-Fill Pty Ltd Enterprise Agreement Award 1995 ("the Multi-Fill Award") and the Drug Factories (State) Award. (b) At about 2.10 pm on 8 November 2000, some of the employees covered by the Multi-Fill Award ("the Employees") engaged in industrial action by walking off the job. The Employees returned to work on 9 November 2000. (c) The production cycle of Multi-Fill requires the Employees to work overtime for this part of the year. This has been a longstanding practice. (d) The Employees have threatened not to work overtime. (e) The Multi-Fill Award provided in clause 19 for multi-skilling. The Employees have also refused to participate in multi-skilling. (f) The industrial action taken by the Employees has jeopardised the entire production of Multi-Fill. (g) The industrial action taken by the Employees and the industrial action threatened by the Employees is unjustified for any purpose under the Industrial Relations Act 1996 ("the Act") and is contrary to the object and intentions of the Act and the public interest. (h) The Employees are members of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch ("AMWU"). An issue will arise as to whether the Employees are eligible to be members of the AMWU. (i) Multi-Fill seeks an order that the AMWU, its officers and the Employees refrain from taking any further industrial action. This order shall take effect immediately and remain in force for 3 months or until further order of the Commission, whichever occurs first. 151 The dispute was listed before Kavanagh J for compulsory conference on 13 and 14 November 2000. On 14 November Kavanagh J directed the parties to meet to discuss the dispute. A meeting took place that day attended by Multi-Fill, the AMWU and the AWU. In a letter dated 14 November 2000, Multi-Fill made an offer to the AWU and the AMWU. The relevant part of the letter of offer provided as follows: As a result of the meeting, Multi-Fill will: 1. give each employee a wage rise of $13.50 per week commencing on 23 November 2000, and 2. continue to pay allowances currently being paid (collectively referred to as "the Offer"). In consideration of the Offer, the employees at Multi-Fill will: 1. work in accordance with the Multi-Fill Pty Ltd Enterprise Agreement Award 1995 (and any Award referred to therein), that is, keep the "status quo", and 2. not take any industrial action in support of a certified agreement or enterprise agreement until resolution of the Dispute. If a problem arises with this arrangement, the problem can be referred to the Industrial Relations Commission of NSW for resolution by conciliation or arbitration. 152 The AMWU forwarded to Multi-Fill a letter dated 15 November 2000 rejecting the offer made by the company. The AMWU sent a further letter to Multi-Fill dated 15 November 2000 noting their members' instructions were for the AMWU to continue to pursue on their behalf an "EBA" and informing Multi-Fill that: In our view the document of 1999 EBA would form the basis of an agreement between the AMWU and the company. Some issues require further discussion and clarification however we anticipate that an agreement would be struck within a short period of time. 153 This communication must be seen, however, in the context of Mr Harris' evidence that the AMWU would not agree to multi-skilling forming any part of an enterprise agreement. 154 The dispute was next before Kavanagh J for compulsory conference on 16 November 2000. On that occasion Kavanagh J made a recommendation that: ... the workers on site accept the offer of the employer of a wage rise of $13.50 per week commencing 23 November 2000 and a guarantee from the employer that the present allowances will continue to be paid. The workers accept this offer for the period of time that is required for Orders as to the appropriate coverage. In accordance with the Award and Enterprise Award workers make themselves available as they have over the last 7 years for the afternoon shift. 155 Kavanagh J directed the AWU to file within 7 days an application for demarcation orders pursuant to ss294 and 295 of the Industrial Relations Act 1996. 156 The AWU members accepted the recommendation of Kavanagh J and received the wage increase of $13.50 per week commencing 23 November 2000. 157 On 17 November 2000, Mr Harris had a meeting with the AMWU members at the site to discuss the outcome of the proceedings before the Commission the previous day. Mr Harris gave evidence that he recommended the AMWU members lift the overtime bans and the ban on working the afternoon shift and his recommendation was accepted. In relation to the wage increase, Mr Harris' evidence was "the members felt so strongly about the multi-skilling issue that they did not want to accept the $13.50 allowance until their concerns about multi-skilling were addressed". The AMWU members subsequently returned to working the overtime and afternoon shifts in January 2001 but still had not at that stage accepted the $13.50 per week wage increase. 158 On 24 November 2000 the AWU filed their application for demarcation orders in the Commission. The AMWU forwarded a letter to Multi-Fill dated 27 November 2000, in which they noted their intention to continue discussions with Multi-Fill for an "enterprise agreement" on behalf of their members. 159 As to the refusal of the pay increase, Mr Harris gave evidence that he told the workers that accepting the pay rise did not require multi-skilling and further, multi-skilling could be introduced either with or without acceptance of the offer because of the terms of the 1995 Agreement. The following exchange occurred in cross-examination between Mr Vernier and Mr Harris: Q. 14 November 2000, it was the one that was typed up at Multi-Fill. What part of that offer leads you to believe that it had anything to do with multi-skilling? A. This letter does not say anything about multi-skilling. Q. It is basically an offer that the employees work or retain the status quo? A. Yes. Q. But your members kept directing you not to accept this offer because they thought it related to multi-skilling. Is that not correct? A. Yes, that's right. Q. But you did not tell them, did you, that this offer was not linked in with multi-skilling? A. Yes, they kept coming back because their experiences of the site, they had concerns that once they did accept the $13.50, its approval - they were concerned about adequate training. Q. Did you tell them that irrespective of whether they accepted the $13.50 or not, it was still within the company's power to introduce multi-skilling because multi-skilling was part of the 1995 Award? A. I made it quite clear that the 1995 award was a registered document and that was the agreement that would apply to the site and multi-skilling was part of that agreement. Q. So basically your members had no real reason to refuse the $13.50? A. The $13.50 was to be accepted on the basis of multi-skilling. That is the understanding. That does not say - their concerns still in the back of their minds was about the adequate training. Q. The recommendation made by her Honour - do you have a copy of that in front of you? A. Yes Q. Nothing relating to multi-skilling was mentioned in that recommendation? A. That's correct. 160 Ms Moore's evidence in relation to the $13.50 wage increase was contradictory. In her affidavit she indicated that she rejected the wage increase because she did not want to perform multi-skilling. She later gave evidence that she could not recall having seen the offer of a pay rise for keeping the status quo and said that she did not remember Mr Harris explaining the contents of the document. She denied refusing to accept the offer on the basis that it would require the workers to multi-skill and claimed that the AMWU had not passed on the recommendation of Kavanagh J to its members. Ms Moore later again remembered the AMWU showing the recommendation to employees but claimed that it was refused because the workers wanted to wait until "everything had finished and then accept it." 161 Ms Howe presented a somewhat different perspective on why the employees did not accept the recommendation. In her evidence, she stated that the workers did not accept the recommendation because they did not want to do multi-skilling. The following exchange occurred between Ms Howe and Mr Vernier: Q. Can you tell me where in that document it says you have to do multi-skilling? A. It is not in this document. We were told by - - Q. Did Mr Harris tell you that that offer related to multi-skilling? A. No, I don't think so. No, it was up to ourselves whether we accepted or not. He came and told us they had been in court and it was up to us whether we wanted to accept it or not to accept it and we said we wouldn't accept it because we didn't want to do the multi-skilling. We were told prior to that that we would only get it if we did the multi-skilling. Q. Who told you that? A. I think that was when they had the company meeting Ian and Shane and all them. Q. Was that many months before November 2000? A. No, it's coming up to that. Since we've been with the other union. 162 When asked whether she was aware that the offer was not related to multi-skilling, Ms Howe stated that the employees were told they would only get the pay rise if they did the multi-skilling and that "It was a multi-skilling pay rise." However, she could not remember whether Mr Harris told her that the offer did not relate to multi-skilling. 163 Irrespective of what was said to the employees by Mr Harris, I find, on balance, that the employees refused the offer as they believed it would require the performance of multi-skilling. The terms of the offer, however, stated that the employees were to maintain the status quo, that is, work in accordance with the Multi-Fill Enterprise Agreement Award which they had been performing work under since 1995 and which gave the capacity to Multi-Fill to introduce multi-skilling (although Multi-Fill had indicated that it would not do so without proper training). 164 During 2001, a review of the 1995 Award was undertaken by Kavanagh J pursuant to s19 of the Act. Ms Sharlene Wellard, an advocate employed by Australian Business Lawyers, gave evidence that she represented Multi-Fill at the review and that the review had been listed before the Commission on four or five occasions. She stated that the AWU had appeared in the review. She considered that the AMWU had not appeared in those proceedings. She indicated that she had not received any communication from the AMWU regarding the review of the Award. 165 In January 2001 an incident occurred at the workplace which resulted in a warning being issued to Ms Moore. The AMWU thereafter lodged a dispute with the Commission in February 2001. The matter was subsequently resolved on the basis that Ms Moore agreed to accept a counselling session. It was further agreed that there would be no record on Ms Moore's personal file regarding the counselling session. 166 Mr Harris sent a letter to Mr Vernier on 20 February 2001 noting that at no stage had he agreed that the AMWU members had accepted the offer of $13.50 and he would not do so without a direction from the members. This letter was followed up by a letter dated 23 February 2001 from Mr Harris to Mr McNamara in which Mr Harris advised that the AMWU members had once again directed him to inform Multi-Fill that they did not accept the wage increase of $13.50. Ms Howe gave evidence that in April 2001 the AMWU members accepted, and received, the wage increase. 167 During the period of the negotiations over the $13.50 wage increase in November 2000, some discussions took place between Multi-Fill and the AMWU as to the establishment of a "training committee" for multi-skilling. Mr McNamara gave evidence which suggested that he had further discussions with Mr Harris concerning the establishment of a training committee during approximately March 2001. Nominations were requested for the committee and five persons volunteered but two subsequently withdrew. As at the hearing of this matter, it is unclear whether the Committee was established. It had not yet met. Multi-skilling was not, on the evidence, introduced by Multi-Fill, despite its clear intention to do so. History of Union Membership 168 There was very little evidence given in the proceedings as to the history of union membership at Multi-Fill prior to 1995. Mr Jovanovski, however, gave evidence as to having held the position of AWU delegate at the site since approximately 1989 and Ms Moore's evidence was that she had joined the AWU in approximately 1994. In relation to the history of coverage at the workplace, Ms Terpstra acknowledged, in her opening submissions "That is something that we do not have on our side obviously, history of coverage, that is something clearly the AWU has on its side but clearly that is a factor in a variety of factors that needs to be examined." 169 Mr McNamara's unchallenged evidence was that until the recent history the forklift drivers at Multi-Fill were members of the NUW, the office and administration staff were generally not members of a union and the balance of the workforce were either members of the AWU or not members of a union. He had been informed by Mr Burger that historically the AWU had had coverage of the employees in the filling operations at Multi-Fill. In addition, Multi-Fill also engaged between five and twenty-four casuals from a labour hire company. 170 I have previously noted that Multi-Fill employed 51 full-time employees, including 5 forklift drivers and 13 office and administration staff. Annexed to Mr Jovanovski's affidavit was a document described by Mr Jovanovski as an AWU membership list in respect to Multi-Fill for the month of August 2000. The membership list contained four columns. The first column on the left of the page contained employee names. Mr Jovanovski's evidence was that the fourth column from the left, marked 'Amount', had figures of 55.00 and 33.00. The evidence revealed that the figure of 55.00 represented current members of the AWU. The figures of 33.00 were exit payments which represented people who had resigned from the AWU in the month of August 2000. The membership list showed nineteen names with the figures 33.00 recorded against their names in the corresponding fourth column and six names with the figures 55.00 in the corresponding fourth column. All of the employees with the figures 33.00 recorded against their names subsequently joined the AMWU. 171 As discussed earlier, it is unclear on the evidence exactly when Multi-Fill employees "joined" the AMWU. Mr Harris' evidence was that on either 13 or 14 September 2000 nineteen Multi-Fill employees completed membership forms for the AMWU. However, the date of completion of the forms, according to Mr Harris, was not necessarily the date the members joined the union and the meeting in which the employees stated their intent to join the AMWU was prior to their completion of the membership forms. The nineteen employees who took up membership with the AMWU were the employees who had resigned from the AWU in August 2000. 172 I make the following findings of fact in relation to the membership history at Multi-Fill: 1. The AWU had as members employees of Multi-Fill for at least twelve years. As at July 2000, it had full membership of employees, other than those fully within NUW coverage and office and administration staff. There is a slight discrepancy between the total workforce, the distribution of employees between the AWU and the NUW, and the figures referred to by Mr Jovanovski. This is probably explained by variations in the total workforce. 2. It may be presumed that the AWU had a similar level of union membership penetration throughout its history of involvement at Multi-Fill. This conclusion may be reached by applying the presumption of regularity, which presumption is supported by two other factors: (a) The union had a long term union delegate at the workplace. (b) It had been an active participant in industrial processes at least since 1995. 3. The AMWU first acquired membership at Multi-Fill (that is, AMWU membership forms were completed by Multi-Fill employees) on 13 or 14 September 2000, and by 14 September 2000 had acquired three quarters of the AWU membership. However, the date of the application for enrolment was earlier and probably during August 2000. The resignations from the AWU coincided with communications with or applications to join the AMWU. Multi-skilling 173 The 1995 award provided for the multi-skilling of team members. The purpose of the provision, as stated in clause 19, was to provide a sufficient overlap of skills to cover any absence. Clause 7 of the 1995 award (when read in conjunction with Attachment A) also provided that the parties to the award had, as a common aim, improving industrial relations and operating methods so as to ensure that work practices would be efficient and flexible and the quality of Multi-Fill's products would be better than its competitors. Multi-skilling was also intended to "enrich jobs." In short, the 1995 award contemplated improvements in the efficiency of the operations of Multi-Fill, the quality of its products and the satisfaction of its employees. These same provisions were incorporated in the 1997 and 1999 agreements. 174 These objectives were pursued by Multi-Fill through multi-skilling. Multi-Fill sought to obtain significant improvements in its business through multi-skilling. It was submitted by Multi-Fill that work practices such as flexibility and multi-skilling are essential. During his oral submissions, Mr Vernier contended that Multi-Fill raised the introduction of multi-skilling at the Consultative Committee meeting on 5 May 1999 as it believed multi-skilling was necessary to enable Multi-Fill to "remain in existence and to improve its produce." I have previously referred to the minutes for the Consultative Committee meeting held on 3 February 2000 in which it was stated by Multi-Fill that multi-skilling would have resulted in the company having greater productivity, improved product quality and a reduced need to employ casuals. These objectives are all commensurate with the common goals of the 1995 award (clause 7 and Attachment A, Goal A(1),(2),(3) and (4)) and thereby the 1997 and 1999 agreements. 175 By the time of the making of the 1995 award, the concept of "multi-skilling" was well understood in industrial parlance. That concept was an important component of the "structural efficiency principle" which had operated in the wages fixing principles of the Commission and its predecessors since the decision of the Full Bench of the Industrial Commission of New South Wales in the State Wage Case August 1989 (1989) 30 IR 107. That decision provided for structural efficiency measures to ensure working patterns and arrangements which would enhance the flexibility and efficiency of industry (at 111). Those measures included generally the development of new job specifications and the establishment (with training) of a wide range of duties (at 110). The measures specifically contemplated the elimination of impediments to multi-skilling and the broadening of the range of tasks which a worker may be required to perform (at 117). Structural efficiency considerations remained relevant at the time of the making of the 1995 award (see State Wage Case December 1994 (1994) 57 IR 1 at 39) and remain relevant today (State Wage Case 2002 [2002] NSWIRComm 118 at 39) as, of course, do the requirements of clause 19 of the 1995 award and the aims of the 1995 award (clause 7). 176 Multi-Fill first raised the actual introduction of multi-skilling, however, only in 1999, at the meeting of the Consultative Committee held on 5 May that year. It was the subject of discussion in the Consultative Committee forums thereafter in a manner entirely commensurate with the common aims of the parties to the award (see Attachment A, Goal A). The initial discussions as to the introduction of multi-skilling were in general terms and involved varying concepts, including new classifications with skill descriptions and the engagement of production employees in quality control work. It sought the introduction of multi-skilling as part of the wage negotiations and linked the implementation of multi-skilling in those discussions with the making of a new agreement. Having regard to the history of award and agreement provisions, this was a relatively generous approach (but, no doubt, sensible in view of some murmurings of opposition to multi-skilling by that time). 177 By the time of the 1999 agreement, Multi-Fill proposed multi-skilling based on the integration of quality control into the production line. This involved the process workers being asked to perform the tasks, which I have previously described in paragraph 28, and to then record the information obtained from performing those tasks. 178 I find that the system of multi-skilling was intended by Multi-Fill to improve productivity and efficiency, product quality and enhance worker skills (and thereby enrich their work). On the balance of probabilities, and having regard to the nature of the multi-skilling reforms proposed and the business of Multi-Fill, those objectives should have been substantially fulfilled if multi-skilling was introduced. No party made suggestions to the contrary in these proceedings. 179 The AWU supported the introduction of multi-skilling. Mr Jovanovski's support for multi-skilling is evident from the minutes of the meetings of the Consultative Committee, referred to earlier, particularly the meetings held on 5 and 27 May 1999 and 3 February 2000. The AWU was named as a party to the 1995 award and to the 1997 and 1999 agreements, all of which contained provisions permitting the introduction of multi-skilling. I have previously found that at the meeting of employees of Multi-Fill on 7 December 1999, where a vote was taken to accept the 1999 agreement, Mr McConville went through the 1999 agreement in its entirety and Mr Toole specifically identified to the meeting that the agreement contemplated the introduction of QC functions into the production line. I have also previously found that it is a reasonable inference to be drawn from the evidence that Mr McConville recommended the 1999 agreement to the meeting of union members on 7 December 1999. Earlier in the decision I have referred to a statement of Mr McNamara, recorded in the minutes of the meeting of the Consultative Committee held on 1 June 2000, that the 1999 agreement had not been signed as Mr McConville "backed down because of the girls' concerns. Ron advised G. Cook he wouldn't sign it until the matter with the girls is resolved." There was no suggestion that Mr McConville's refusal to sign the agreement was due to any opposition by the AWU to multi-skilling. Rather, it indicated the AWU's position to be that he wished any concerns its members had with multi-skilling be addressed and resolved during the Consultative Committee process. I note also that it is clear from the evidence that Mr Jovanovski continued to advocate multi-skilling throughout the period following the making of the 1999 agreement. The minutes of the Consultative Committee meeting held on 3 July 2000 record Mr Jovanovski as having stated at the meeting that "multi-skilling is right through the industry. If you have a look at jobs being advertised they want people willing to multi-skill." Indeed, he was criticised by members of the AMWU for supporting multi-skilling. The AWU's support for multi-skilling was also demonstrated by its members' acceptance of the second $13.50 wage increase in the 1999 agreement and its unequivocal support for the introduction of multi-skilling in these proceedings. 180 By at least early 2000 there was considerable resistance in the workforce to multi-skilling. As I will discuss a little further on, this was a root and branch opposition, irrespective of the measures which may have accompanied its introduction (such as training to equip the workers to perform the new tasks). It posed an exquisite dilemma for the AWU - which was cast between adhering to the spirit and intent of the terms of the 1995 award, the 1997 agreement and the agreement reached after a consultative committee process and a resolution of a meeting of union members in 1999 (each of which warranted the introduction of multi-skilling), and pursuing the objectives of a group of activists intent on resisting any change of this kind, irrespective, as I will find, of the undertakings given by Multi-Fill which were adequate to meet any genuine concerns over training, job security or safety. 181 The AMWU submitted that the AMWU witness evidence "has been clear and unequivocal. It was not that there was a reluctance to undertake multi-skilling, but rather concerns about lack of training, Occupational Health & Safety concerns and job security were more on the point." I do not accept this submission for the following reasons: 1. When tested, the witnesses for the AMWU conceded a root and branch objection to multi-skilling. Those witnesses strenuously objected to multi-skilling per se, irrespective of the training and job security measures which were offered. 2. The evidence demonstrated that reasonable undertakings were given and steps taken by Multi-Fill to remove any real concerns that multi-skilling may have been introduced without proper training, unsafely or as a threat to job security. Multi-Fill was willing to provide training to the process workers to enable them to perform their work with confidence and was willing to allow a reasonable period for this to occur. It did so as a matter of corporate philosophy because, at the end of the day, all Multi-Fill wanted to do was to improve the skill levels of the employees and thereby the efficiency of its employees and the quality of its product. Multi-Fill gave assurances that no permanent positions would be lost as a result of the introduction of multi-skilling. Thus, when tested objectively, the assertions of the witnesses for the AMWU were either factually wrong or the justification for their contentions were found wanting. 182 As to the first of these conclusions, I note that the AMWU called evidence on the issue of multi-skilling from three employees, namely, Ms Moore, Ms Howe and Ms Mooney. Both Ms Moore and Ms Howe, in fact, acknowledged their opposition to the introduction of multi-skilling to the workplace in such a manner as to make it abundantly clear that their opposition to multi-skilling was quite fundamental and that no amount of persuasion or assurance as to issues like training was likely to placate them. I have already referred to Ms Moore's attendance at the Consultative Committee meeting on 3 February 2000, where implementation of multi-skilling was discussed. In relation to multi-skilling the transcript shows Ms Moore as having made the following statements: "There is not one girl that says that they want to do it", "If I don't have to do it I won't do it", "Because the way we look at it is just an extra responsibility and that's it" and "I don't want a future. I want to do what I do and go home. If I can't do this I will leave." It will be recalled that the cross-examination of Ms Moore as to these types of statements led to the controversy in the proceedings about the taping of this meeting. 183 Ms Moore and Ms Howe both gave evidence that the reason for the AMWU members' refusal to accept the recommendation of Kavanagh J to accept Multi-Fill's offer of a wage increase was because they believed it would require them to perform multi-skilling . Ms Moore's affidavit evidence on the offer of a wage increase of $13.50 was unequivocal. She deposed: "We didn't want to take the increase because we didn't want to do multi-skilling." Ms Moore's position was perhaps summed up in the following exchange which took place during her cross-examination by Mr Vernier: Q. You had no intention of doing multi-skilling, did you? A. I had no intention of doing it. 184 Ms Howe's evidence in cross-examination in relation to Multi-Fill's offer of a wage increase of $13.50 was that "we said we wouldn't accept it because we didn't want to do the multi-skilling." 185 The essential reason for the defection by a component of the workforce from the AWU to the AMWU was also disclosed in the following answers given by Ms Howe during cross-examination by Mr Tripodi: Q. I would like to refer you to your affidavit of 16 February 2001. At paragraph 5 you talk about how "We all put in a dispute about multi-skilling"? A. Yes. Q. Who is "we"? A. Everybody that has gone over to the AMWU. Q. Is that because everyone who has gone over to the AMWU is opposed to multi-skilling? A. Yes. 186 In the result, Multi-Fill was forced to offer the wage increase, notwithstanding the earlier award and agreements, without any requirement for multi-skilling. It will also be recalled that Ms Moore and Ms Howe both played roles in introducing the AMWU to the workforce of Multi-Fill 187 Whilst there was no direct evidence of such trenchant views from other members of the AMWU, it may be reasonably inferred that a strongly held conviction against the concept of multi-skilling was held by other AMWU members. This may be concluded, partly because the AMWU presented its case as if the views of Ms Moore, Ms Howe and Ms Mooney were illustrative of its members views, but also because the evidence of Ms Moore and Ms Howe was expressed in a forthright manner as reflecting the views of other persons who had joined the AMWU. Further, the evidence of AWU members also supported the conclusion as to the attitude to multi-skilling of those who joined the AMWU. 188 Before turning to the evidence of the AWU witnesses, I note that it is curious, having regard to the strong views in opposition to multi-skilling given by Ms Howe and Ms Moore, that they also gave evidence that they were already carrying out multi-skilling as sought by Multi-Fill. I have rejected this assertion as a matter of fact. That evidence also stands in contrast to the contention that the opposition to multi-skilling really only concerned the absence of, for example, sufficient training to carry out multi-skilling. It raises real questions, in addition to other matters I will discuss, as to the credibility of the evidence led by the AMWU from their witnesses as to multi-skilling. 189 The AWU called evidence from Ms Skillman and Mr Gary Partridge, a compounder/mixer employed by Multi-Fill, on the resistance to multi-skilling per se by a component of the workforce. Mr Partridge gave evidence that amongst the employees at Multi-Fill Ms Moore, Ms Nagy and Ms Mooney were, in particular, all opposed to multi-skilling. He deposed as to having heard Ms Moore say in relation to multi-skilling: "They can't sack me for not doing it." He was asked during cross-examination by Ms Terpstra what he understood to be the basis of their opposition to multi-skilling and his response was: "They believed the pay rise that was being negotiated was a general cost of living pay rise as opposed to a multi-skilling pay rise. They believed they wanted the pay rise without having to achieve any extra productivity from them." 190 It should be noted that Mr Partridge deposed that he was originally opposed to multi-skilling but after realising that it was already a part of the enterprise agreement decided to take the increases, perform the extra work and remain a member of the AWU. Mr Partridge had no complaints about Mr McConville as an organiser, nor could he understand why the AMWU members refused the increase recommended by Kavanagh J in the dispute proceedings. Mr Partridge stated that he took the increase recommended immediately. 191 During cross-examination by Mr Vernier, Ms Skillman gave evidence as to the initial discussions with the AMWU. She stated that Ms Nagy, Ms Moore and Ms Collins initiated those discussions, however, she was not aware of why they chose the AMWU specifically. Ms Skillman herself did speak with someone, whom she thought was Ms Moore, about joining the AMWU and she remembered talking about resigning from the AWU, she also signed a membership form to join the AMWU but "tore it up". Ms Skillman remained with the AWU. 192 Ms Skillman also stated that she believed multi-skilling was good for the company and gave the following evidence as to the attitudes of the process workers to multi-skilling and the movement to the AMWU: Q. Can you tell the Commission what the feeling of many of the women on the line was towards multi-skilling? A. They didn't want to do it. Q. Did you hold a different view to that? A. Yes. Q. Did many women who did not want to perform multi-skilling, did they leave the AWU? A. Yes. Q. Did you stay with the AWU? A. Yes. Q. Why did you not choose to join the AMWU? A. Me, myself, I think all unions are the same, so I just stayed with my union. 193 She deposed that "Many of the girls on the line have said that they absolutely refuse to do any of this multi-skilling work." 194 The reaction to Ms Skillman's decision to remain with the AWU was explained by her as follows: Q. And when you came to remain in the AWU, what was the reaction of the other women? A. A lot of bitching is going on behind my back, talking about me, that's about it, yes. 195 Ms Skillman also stated in her affidavit that since remaining with the AWU "no one on the process line speaks to me anymore". This caused her distress because all she wished was to "go to work, do my job and go home." 196 As noted, the AMWU's contention as to the attitude of its members to multi-skilling can also be tested against the veracity of its assertion that the objections to multi-skilling only really concerned certain unresolved issues attaching to the introduction of that system. I shall test, in turn, each component of this proposition. 197 In relation to the AMWU's submission as to its members' concerns about job security, the only AMWU witness to give direct evidence on this issue was Ms Mooney, whose evidence lacked credit. It was at best ambiguous, less than convincing and somewhat partisan. I note that, whilst Ms Howe gave affidavit evidence as to fears for her job "if problems arose", any concerns she may have had with job security appeared to be in the context of adequacy of training, which issue I will discuss shortly. 198 Ms Mooney deposed that her "main concerns with the company's proposal for multi-skilling was that it was to get rid of people. I didn't have other problems with it, but I did fear for the job security of myself and others." It should be noted that Ms Mooney was already doing some aspects of multi-skilling as a leading hand and as a result of this experience her objections focussed only on job security. However, the evidence does not reveal her taking any steps, based on her experience, to allay the fears of her colleagues giving rise to their resistance to multi-skilling. 199 Ms Mooney was cross-examined by Mr Tripodi as to why she felt that multi-skilling "was going to get rid of someone's job" and the following somewhat ambiguous exchange occurred: Q. Just on the question of you felt that multi-skilling was going to get rid of someone's job, can you explain why you held that --? A. It happened. Q. Sorry? A. It already happened. When all this dispute was going on we had a person doing quality control as a stand in while Steve was off on compo. You have to understand the structure. One person was taken from Quality control to do Steve's job. That meant that he was not on the floor. Somebody had to take his job. So for two and a half years somebody else did that job. Then as soon as this dispute came up that we all went to another union the only person that did not go over to that other union, the person that had been doing the job for two and a half years was no longer doing the job, the person that did not go over to the other union was offered the job and took it. Q. But is that, does that have anything to do with multi-skilling, or is it that just a case of transfer? A. Of course it does, I won't say it is a promotion but it is definitely more money, it is more responsibility. ... Q. And so someone moves to another job for two and a half years and you see that as somehow being multiskilled? A. Well, it is multiskilling, it is different to a process worker, she has to do gauge work, she has to do the gauges, hook up tanks and make sure, it is a responsible job. 200 It is not at all clear how Ms Mooney's example connects to the introduction of multi-skilling and none was suggested in the proceedings. 201 Later, during Ms Mooney's cross-examination by Mr Vernier, she was taken to the minutes of the Consultative Meeting held on 27 May 1999, and the following exchange occurred: Q. I take you to page 3 of the minute that you have in front of you. The last sentence, second paragraph, "There is a fear in some companies that people are frightened of losing their jobs with multi skilling. This is not the case." Did you read that? A. Mmmm. Q. Would you say that your concern would be set aside with that comment? A. No Q. I take you to another minute dated 3 July 2000, also part of Exhibit 32. Do you remember reading this? A. I have seen this. … Q. On page 2, fourth paragraph, "PB (asks) is there a view that we will lose people?" "Ian McNamara advised that as discussed last year it would mean that one James Personnel person would no longer be required. This will not affect any of the permanent people here."? A. Yeah, but it will affect people there. Q. This is one of the bosses of the company telling you it will not affect people? A. Well, I know three people that it will affect. Q. I am suggesting to you, Mrs Mooney, your concern that someone will lose a job is not an actual concern? A. Well, actual, that is what Steve Jovanovski said to us, "If you are not prepared to do it you might as well look for another job." 202 The reference to a person not being required in this exchange was to a casual employee. Multi-Fill had consistently stated that it aimed to use multi-skilling to reduce casual employment (with, I would have thought, an obvious cost saving) but with no reduction to the permanent workforce. Assuming the exchange with Mr Jovanovski did occur (although it was not put to Mr Jovanovski), it is demonstrative of the AWU's conviction to adhere to its agreements to introduce multi-skilling and that the workforce may be required to carry out the task (not that the introduction of multi-skilling per se would reduce the workforce). As will be later seen, Multi-Fill made ample provision to training and the fact that some employees may have been bona fide unable to do the task was proposed to be taken into account. In any event, the evidence represents, in my view, an obstinate maintenance of the contention that there was a threat to job security in the light of clear assurances given by Multi-Fill to the contrary. 203 There was clear evidence that Multi-Fill gave undertakings during the Consultative Committee process to allay any concerns that multi-skilling was a threat to job security. The issue of job security was raised by Multi-Fill at meetings of the Consultative Committee held on both 27 May 1999 and 3 July 2000 as discussed above. I have previously referred to the meeting of the Consultative Committee held on 3 February 2000 and Mr Jovanovski's assurance to Ms Nagy and Ms Moore at that meeting that multi-skilling would actually enhance job security. The minutes of the meetings were accessible to all employees at the workplace. Ms Howe had read them. 204 It is also important to note that the "Common Goals" of the 1995 award had made plain that changes of the kind envisaged by multi-skilling were important to Multi-Fill remaining competitive; a consideration which is directly related to job security. 205 Ms Moore was the sole witness for the AMWU to give direct evidence as to safety concerns in the context of the introduction of multi-skilling. As will be seen from the discussion on her evidence below the reasons given for her concerns were, when tested, either without foundation and somewhat exaggerated. 206 Ms Moore expressed concern at "doing the crimp." She stated, "I am required to read the gauges for depth and width. I am worried about getting hurt. One day 20 valves blew off the cans when they went through the 60 degree water bath. This was because the crimp wasn't right. I think this is dangerous." Further, Ms Moore deposed "I don't know who will get their arse kicked if something goes wrong. What happens if a can gets too much gas in it and then it goes through a 60 degree bath? They can blow. Whose responsible? What happens if there is a faulty valve? I just don't think they have the proper equipment or enough of it for people to do their work." 207 If Ms Moore's concerns were as to getting hurt whilst "doing the crimp" then they were ill-founded. As she admitted during cross-examination by Mr Vernier, the crimp was, in fact, done prior to gas being placed in the cans. The balance of her evidence, at this point, seems more concerned with criticism which may have been received if the testing was not carried out properly. Mr Jovanovski and Mr McNamara both gave evidence, which was not challenged, refuting Ms Moore's queries as to what would happen if a can had too much gas and who would be held responsible. Mr Jovanovski deposed that in the event of a can having too much gas, this would be detected on a digital scale and a mechanical arm would divert and reject the can before it got to the bath. If for some reason this did not occur, an employee could not be held responsible as it would be attributed to a machine malfunction. In the case of a faulty valve, a can would be gassed but would then deflate prior to leaving the gas room and again this would be attributed to a mechanical fault. During cross-examination by Mr Tripodi, it was conceded by Ms Moore that the company would "probably not" hold an employee responsible for a faulty valve. She further conceded that faulty valves had no connection to multi-skilling. In response to Ms Moore's criticism of the company's equipment, Mr Jovanovski's evidence, which was not challenged, was that Multi-Fill had both the proper equipment and enough equipment. 208 Ms Howe and Ms Moore both gave evidence as to their concerns with the training for multi-skilling offered by Multi-Fill. Their complaints in this respect, when tested, were quite unconvincing. 209 Ms Howe deposed that she was worried about the extra responsibilities associated with multi-skilling and "what would happen if something went wrong." According to Ms Howe, "If the company got everyone together and went through all of the workers concerns step by step and slowly worked through all the problems, I would have felt a bit more at ease about it coming in." She held fears for her job and work record in the event of problems. Ms Howe went on to say, "When they conducted the trial of multi-skilling this was done on line 3. Mr McNamara conducted the trial. He showed the workers what to do. I was working on line 5 that day and I could see the trial being conducted. My recollection was that this demonstration took about 5 minutes." 210 Ms Howe acknowledged, during cross-examination by Mr Tripodi, Multi-Fill's practice of placing on the notice board the minutes of the Consultative Committee meetings. She gave evidence that although she read the minutes she had not seen the minutes for the meeting held on 3 February 2000. In relation to those minutes the following exchange occurred in Mr Tripodi's cross-examination of Ms Howe: Q. You do not remember reading that one? A. No, I haven't seen that. Q. May I take you to page 10 of that document? Now we have there up at the top, we see there "McNamara and Shane Richards." "Mr McNamara says the first step was to introduce this to you" - meaning the multi-skilling. "The second step was to trial it, work with it individually and show you how it is filled out and explain why it is filled out. I think we have gone a long way in explaining that. I don't expect it to be perfect first up, nothing is." If you heard that wouldn't that allay some of your concerns about multi-skilling? A. Is that what I swore, is it? Only showing its filled out, that's multi-skilling is it? Q. Yes. A. It's a strange way of putting it. Not really, no, because they did that. Q. Who is "they"? A. The few people that were asked to do it and did it and I mean I don't think that that was enough. Q. But Mr McNamara is not indicating that that was the extent of the training, is he? A. Not in here, no. Q. He is saying, "Let's trial it," isn't he? A. Yes. 211 I have already discussed the training trials conducted by Mr McNamara on 10 and 11 July 2000 which concluded early due to the employees' unwillingness to be trained. Ms Howe admitted being aware of the process workers' refusal to take further part in the trial during the following exchange in cross-examination: Q. Are you aware that when that when that trial took place that the process line workers who took part in the trial said that they would not do it, they would not take further part in the trial, are you aware of that? A. Yes, but that wasn't said to me, I only heard it again on the grapevine. Q. You were not involved in the trial? A. I wasn't involved, no. 212 I have previously referred to Mr McNamara's evidence as to training Ms Grech and Ms Robinson for approximately thirty minutes each on 10 July 2000. During his evidence-in-chief he stated that the training on that day took place on line 3 at the "crimp gauge station" and that it was the only training session conducted on the factory floor. He further testified that, based upon his knowledge of the set out of the factory, if he were training a worker on the crimp meter someone on line five would not be able to see him. I accept his evidence as to these matters. 213 As I have noted earlier on, Ms Skillman took part in the training session on 11 July 2000. She deposed that "In July 2000 Ian McNamara held some training sessions with a number of process workers including myself. I felt that I was able to do the work and would give it a go." Ms Skillman subsequently became a line quality control inspector on a temporary basis. 214 The thrust of Ms Moore's affidavit evidence on this issue was that she was not confident to do multi-skilling and did not consider that training would improve her confidence. According to Ms Moore, her "problems with Multi-skilling as proposed by the company relate to the lack of training and instruction. I don't think that they train us properly." Ms Moore deposed that "many of the girls have language problems and can't read the things properly." 215 During cross-examination it was put to Ms Moore that the training trial ceased because the process workers did not want to be trained. Her response was: "I wasn't a part of that trial. I don't know what went on." She further testified that she had not heard any reports about the training trial. When asked by Mr Tripodi why she held the view that any training given by Multi-Fill would not be sufficient, Ms Moore's response was: "I'll tell you. I knew a girl started on line QC. She got - the guy out of the lab spent a couple of hours with her. From then on it was up to the other QC's to train that girl. A couple of weeks back this girl come up against a stem height. She didn't know what a stem height was or how to do a stem height and she was supposed to be trained to do QC. She did not have a clue what to do." 216 No evidence was given as to when the employee referred to by Ms Moore had become a line QC, and it was unlikely Ms Moore's example related to the current training proposed by Multi-Fill. Finally, in relation to the issue of training, the following exchange occurred during her cross-examination by Mr Tripodi: Q Has anyone suggested the training will not take a reasonable amount of time? A It's going to take a lot of time. Q Exactly, and that's the point. A And there's a lot of girls there. 217 Evidence was called by the AWU from Mr Jovanovski and Mr McConville to refute Ms Moore's evidence as to concerns with multi-skilling due to language problems of "many of the girls." Mr McConville deposed that an employee, Maria Car, approached him and said that she did not feel confident about doing training for multi-skilling due to language difficulties. Mr McConville's affidavit evidence, which was not challenged, was that he raised this with Mr McNamara who indicated that the company would not force Ms Car to do the training. Mr Jovanovski deposed as to two process workers from non English speaking backgrounds, Lucy Nicolovska who had a Macedonian background and Maria Car who had a Croatian background. Mr Jovanovski's evidence, which was not challenged, was that to his knowledge and belief both women understood English. Further, there was an understanding between the Consultative Committee, those women and himself that in the event of communication problems he would assist as he spoke both Macedonian and Croation. 218 It was clear from both Mr McNamara's evidence and the minutes of the Consultative Committee meetings, that Multi-Fill at all times proposed to introduce multi-skilling only with proper training so as to enable the process workers to perform their work with confidence. It appeared from the evidence that the issue of training was first discussed at the meeting of the Consultative Committee held on 4 June 1999. I have previously referred to the minutes of that meeting which discussed multi-skilling and noted, in part: "I. McN feels this is a good 12 months away because there is a lot of training involved." I have also previously referred to the minutes of the Consultative Committee meeting held on 3 February 2000 where the issue of training was discussed at some length. Ms Moore was present at that meeting where Mr McNamara sought to allay any concerns which the employees may have harboured in regard to training. 219 Multi-Fill not only offered, but attempted to implement, training for multi-skilling. However, the training was prevented by the employees of Multi-Fill. The training session conducted by Mr McNamara on 11 July 2000 concluded early solely due to the employees' unwillingness to be trained. No evidence was given in the proceedings to suggest that the sessions on 10 and 11 July 2000 were the extent of the training proposed for multi-skilling. The evidence was that Multi-Fill saw the provision of adequate training as an important feature of the introduction of multi-skilling. Apart from its statements to that effect, it is also consistent with its statement that the dual purpose of multi-skilling was to enhance efficiency and quality; the later objectives presumably being defeated by an inadequate skill enhancement of workers to carry out multi-skilling which, at the time, was solely directed to quality control functions. That approach also accords with the common goals stated in the awards and agreements (see Goal C.4). 220 It was very shortly after the aborted training sessions in July 2000 that the AMWU appeared in the workplace. I have previously referred to, in some detail and do not repeat in full, Mr Harris' evidence as to the initial discussions he and Ms Dowell had with the employees of Multi-Fill. I merely confirm, however, his evidence as to the concerns expressed by the employees with multi-skilling at that meeting. In particular, his evidence that "They raised concerns they had with it and they felt that the company was going to continue to do multi-skilling. They then said they had concerns about it because the training that had been put in place, they didn't feel it was going to be adequate training because some people had been given two hours and they said, 'Off you go, that's how you've got to do it.'" These statements by employees to the officers of the AMWU were simply inaccurate. The training had been promised, attempts had been made by a suitably qualified trainer to give it and it had been refused. In substance, the disaffected members of the AWU were seeking out a champion to resist the introduction of multi-skilling where no good reason existed for offering such resistance. The AMWU ultimately performed that role. 221 The evidence showed that, when tested objectively, the reasons given for opposing the introduction of multi-skilling by AMWU witnesses were without proper foundation either because they were inaccurate or incorrect or made in the face of concessions by the employer which rendered them shallow complaints. When combined with the evidence showing the true nature of the opposition to multi-skilling, being a resistance to the concept itself irrespective of supportive measures, one is driven to the conclusion that Multi-Fill faced a stubborn resistance to multi-skilling despite its reasonable efforts to ameliorate any alleged problems and that the ostensible reasons for resisting multi-skilling given in the evidence of the AMWU witnesses were disingenuous. 222 I have previously referred to a meeting which took place on 10 August 2000 attended by Mr McNamara, Mr Harris and Ms Dowell. Ms Dowell gave evidence that this meeting occurred when the AMWU first enrolled members. Mr Harris's evidence was that just before Christmas 2000 he had a further meeting with Mr McNamara. Notwithstanding Mr Harris' evidence as to the employees' concerns with multi-skilling which they expressed at his initial meeting with them, there was no evidence adduced in the proceedings to indicate that the issue of multi-skilling was raised by the AMWU at the first meeting with Mr McNamara. Rather, Ms Dowell deposed as to informing Mr McNamara at the first meeting with Multi-Fill that the AMWU was not looking for any "major changes but only a site agreement in the same terms as what you've already got." Mr Harris' evidence was that at the second meeting he told Mr McNamara that "We are not here to make major changes ...". However, at that meeting he, in fact, indicated a quite substantial change was intended to be brought about in the industrial relationships by the AMWU by refusing to have multi-skilling as part of the enterprise agreement. 223 Mr Harris' evidence in cross-examination was that the "main problem" of disaffected former AWU members was not multi-skilling but their discontent with the AWU's representation. I do not accept this evidence. The evidence overwhelmingly suggests that the primary reason for these employees joining the AMWU was because of their concerns over multi-skilling: 1. The timing of the approaches to the AMWU and the training for multi-skilling (and the employees adverse reaction to the introduction of multi-skilling by that means) can leave little doubt as to this conclusion. The approaches to the AMWU and resignations from the AWU appear to have occurred within about one month of the failed training attempt. 2. The connection was made directly by Ms Skillman. She underwent the multi-skilling training on 11 July 2000 and subsequently became a line QC inspector. As to the general feeling between the other process workers, Ms Skillman stated that many of the workers refused to do the work. She further deposed as follows: In August 2000 I think that everyone on the process line except myself left the AWU and joined the AMWU. I believe that Sue Moore and Anne Collins spoke to people about this as they were angry with Steve, the AWU delegate, supporting the company's attempts to have people try the multi-skilling work. I decided not to leave the AWU because I saw no reason to change unions. This became common knowledge on the process line. 3. The disaffected employees met with Mr Harris and Ms Dowell met with employees probably in early August 2000. On the evidence, the only specific concern the employees raised in that meeting involved the introduction of multi-skilling. 4. The opposition to multi-skilling by some of the major protagonists had been well known before August 2000. I have earlier referred to Ms Moore's statements in the Consultation Committee meeting of February 2000. By some time in July or August 2000, when Ms Moore put a card concerning the AMWU on a table at a meeting of employees, she had worked at Multi-Fill for the previous seven or eight years. There was no evidence of her making previous complaints about the representation of the AWU. There was a suggestion that the AWU had "sold [her] down the drain" over the 1999 agreement, but it was, in substance, similar to the 1995 and 1997 agreements and she had made no complaint about those instruments. The earlier complaint about her casual shifts, as I will later discuss, had been resolved by the AWU. When judged against her vehement approach against multi-skilling it is difficult to accept any other conclusion that her approach to the AWU emerged after and not before the emergence of proposals to introduce multi-skilling. 5. The evidence reveals that for many years the employees of Multi-Fill worked in a reasonably calm industrial environment under agreements which allowed for multi-skilling. It was not until the company took steps to put the provisions of those instruments (allowing for the implementation of multi-skilling) into effect that the workplace became significantly disgruntled with the AWU. In particular, the evidence showed there were few, if any, complaints about industrial conditions and union representation until after July 2000, when the company attempted to administer multi-skilling training. There was no evidence of any resignations from the AWU or complaints having been lodged with the AWU about the representation it afforded employees until after that time. 6. This conclusion is also available from the circumstances of the industrial dispute which emerged later in 2000. In essence, the dispute concerned the rejection by the employees of the second wage increase under the 1999 Agreement if that entailed an acceptance of multi-skilling. It was not an isolated dispute and had, in my view, a direct connection to the events which unfolded in July 2000. The consistency and vigour of the approach by those employees in rejecting the wage increase leaves little doubt as to what stimulated their rebellion against the AWU by August 2000, when it endeavoured to persuade them to accept the introduction of multi-skilling. 224 In its written submissions in reply, the AMWU rejected submissions put by the AWU and Multi-Fill to the effect that, it was to blame for the problems associated with the introduction of multi-skilling and that it was a catalyst for disruption over that issue. As earlier mentioned, the AMWU put that it and its members did not reject multi-skilling but merely objected to the manner in which Multi-Fill wished to introduce it. In oral submissions the AMWU essentially adopted this position as its own in these proceedings. Ms Terpstra put: We don't disagree with the concept of multi skilling, but the way it was proposed to be implemented needed to be fully effected at the work place for that to occur; that is clear on the evidence. We were simply saying there were issues to be addressed and we say it is not consistent with the object of the Act in terms of producing an industrial environment or conditions that provide a framework that is fair and just. 225 These contentions cannot be sustained, in my view, upon the evidence in these proceedings, for the following reasons: 1. As I have found, on the balance of probabilities, the disaffected members of the AWU had determined to resign from that union essentially because of their rejection of multi-skilling. This opposition was triggered by Multi-Fill's attempt to trial multi-skilling. That trial had occurred at the end of Consultative Committee processes designed to remove obstacles to multi-skilling and efforts by AWU representatives to deal with and remove resistance to the concept having regard to the awards and agreements then existing and the recent vote of its members. It was at this very time or shortly thereafter that the AMWU had meetings with prospective members over multi-skilling. 2. The issue of multi-skilling was raised at the first meeting between the AMWU and the employees opposed to that system of work. There can be no reasonable doubt that the employees who shortly thereafter joined the AMWU did so upon the expectation that it would champion their cause against multi-skilling. The industrial relations climate at Multi-Fill had then changed and Multi-Fill would now need to grapple with a new organisation over the issue of multi-skilling. For example, the Consultation Committee process ceased. In any event, ultimately the AMWU was placed at the forefront of its members' resistance to multi-skilling and refused to have multi-skilling form part of the enterprise agreement. 3. Indeed, it was under the AMWU banner that those employees engaged in industrial action. An AWMU stop work meeting was held to discuss "the enterprise agreement" later in 2000. Just what may have been discussed, particularly in the light of the earlier intimations by the AMWU to Multi-Fill to the effect of not making major changes to the existing terms of agreement, is unclear. What was clear is that out of that meeting came a rejection of multi-skilling and the wage increase under the 1999 Agreement, which was thought to be connected to the introduction of that system. Even after a return to work the employees refused to accept the wage increase because of a perception of a link to multi-skilling. None of this is surprising because those workers had received, through the AMWU, a vehicle under which to resist multi-skilling. 4. Ultimately Multi-Fill, despite its earlier intention to utilise the 1999 Agreement to introduce multi-skilling, relented and offered the wage increase without such a requirement. The introduction of multi-skilling was stopped. This had occurred without the Consultative Committee processes which had previously engaged the AWU and Multi-Fill; contrary to the terms of the 1995 award and agreements; and with the reintroduction for the first time in the recent history of Multi-Fill of industrial action. 5. The AMWU contention as to the absence of training (and other supportive measures) being the true basis for its opposition is lacking because: a) It was essentially put as a reflection of its members' position, which, on the evidence, was found wanting; b) It never once advanced propositions as to job security and safety in relation to multi-skilling with Multi-Fill. Discussions as to the establishment of a training committee did not take place until at least November 2000. Whilst it was unclear from the evidence whether those discussions were initiated by the AMWU or Multi-Fill, at the end of the day it makes little difference, given that the AMWU had previously indicated to Multi-Fill that it would not agree to the inclusion of multi-skilling provisions in any enterprise agreement. In any event, the AMWU members were opposed root and branch to multi-skilling; a position which the AMWU never reconciled in its dealings with Multi-Fill, except by its involvement with its members in taking industrial action. 226 Further, there are a number of other facets of the AMWU's involvement in the multi-skilling issue which bear mentioning in the light of the facts, as set out in the previous section described as "AMWU involvement: changed industrial relations": 1. At the outset of its involvement at Multi-Fill, the AMWU put nothing to management about the issue of multi-skilling. Rather, it put the proposal that it intended to change very little of the 'site agreement'. The AMWU's later notice served in October 2000 said nothing directly about the issue. 2. It made no proper inquiries as to the background of the multi-skilling issue before enrolling members at Multi-Fill. The AMWU had no real appreciation of the force of the existing awards and agreements. Mr Harris conceded that he had no knowledge of the 1999 agreement even by late 2000. Even then he attempted to suggest in these proceedings that the 1999 agreement had never been the subject of a meeting of union members (no doubt reflecting a concern that the agreement spoke contrary to the position adopted by the AMWU). He also had no background information as to consultative committee processes. Mr Harris claimed to have some appreciation of the 1995 Award, but this knowledge appeared to have been obtained substantially later and did not seem to have impeded his approach to the multi-skilling issue. 3. There was a suggestion by Mr Harris that he raised with his members in November 2000 the terms of the 1995 Award. This was not confirmed by Ms Moore or Ms Howe. It was reasonably clear, in any event, that he did little or nothing to dissuade the employees from the industrial course on the basis of the 1995 award. According to Ms Howe, he simply indicated that it was up to the membership of the union to decide upon the course they could take. It should be noted that there was some real confusion in Mr Harris' evidence as to the meeting of 17 November, as he was unable to satisfactorily explain why his members rejected a pay increase, despite the company not insisting on introducing multi-skilling in return for the pay adjustment. 4. The ultimate dilemma for the AMWU was exposed in the following submission by Ms Terpstra : A central issue of concern to the AMWU members was the introduction of multi skilling. We say in terms of the evidence of an enterprise agreement the union did say to the company they did not intend to make major changes but, in fairness, could say the issue of settling any arrangements seem to be side tracked by the whole introduction of multi skilling. I know the AWU said that was the whole component of introducing an enterprise agreement. There was a statement about flexibility and those kinds of things. 5. This statement needs to be read in conjunction with Mr Harris' statement that the AMWU would not accept multi-skilling as part of the enterprise agreement. It demonstrated that the AMWU became, by whatever means and in real terms, the advocate for its members' opposition to multi-skilling. 6. Whilst the statement no doubt explained, in part, the inconsistency in the AMWU's approach, it plainly demonstrated the vice of the AMWU enrolling members where the key grievances they wished to agitate against their union were quite baseless and contrary to agreements binding on them. The AWU acted responsibly in attempting to guide its members towards adherence to their industrial awards and agreements and accept the mutual benefit of change of the kind envisaged for their employer and themselves. The AMWU did not so behave because it resisted the maintenance of multi-skilling in the enterprise agreements, supported employee opposition to multi-skilling and erected conditions for the introduction of multi-skilling which were without proper foundation having regard to prior concessions by Multi-Fill as to these matters and the circumstances under which Multi-Fill had commenced to introduce multi-skilling. Never once did the AMWU unequivocally support the introduction of multi-skilling, notwithstanding the awards and agreements providing for its introduction. Submissions Submissions of AWU The principles to be applied 227 The AWU submitted that the Commission had the power to make the orders sought in the AWU's application pursuant to ss294 and 295 of the 1996 Act. 228 As to the exercise of those powers, it was submitted that regard must be had to the changes in the statutory regime, beginning with the Industrial Arbitration Act, 1940 ("the 1940 Act"), in order to gain a proper understanding of how the discretion to make a demarcation order is to be exercised. 229 The AWU submitted that, under the 1940 Act, the Commission had power to determine any question as to demarcation without any explicit fetters, as was stated by Hungerford J in 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. As such, the power was exercised by reference to factors such as the desirability of maintaining single union coverage in one field of work and in light of provisions relating to registration of unions, particularly with respect to the powers of the Registrar to refuse registration where it was thought that the industrial interests of the persons represented by the union applying for registration are already protected by a previously registered union (see section 8(3) of the 1940 Act and New South Wales Public Service Clerical Officer's Association v Public Service Association of New South Wales [1953] AR (NSW) 570 at 583 and 585). It was submitted these considerations were also relevant factors under the 1996 Act, given that similar provisions are present in ss218(1)(m) and 245(3) of the 1996 Act. As a result of the presence of these provisions and the absence of restrictions on relevant criteria in the 1996 provisions, issues such as traditional patterns of coverage and heritage of interest should apply to questions of demarcation under the 1996 Act. 230 As to the approach under the Industrial Relations Act 1991 ("the1991 Act"), it was contended that issues of history of union coverage or heritage of coverage became less important due to the specific requirements of the 1991 Act for rationalising coverage. The change in the statutory provisions resulted in a move towards an objective, rather than subjective, approach to the exercise of discretion. Thus, matters pertaining to the interests of the organisation itself were de-prioritised in favour of the interests of employers and employees, as assessed in the context of the needs of the enterprise: NUW v TWU (at 365 - 366). And further, greater weight was placed upon stable industrial relations and the objects of the Act and the views of employees: 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 at 127 (FIA v TWU (No. 1)). 231 It was further submitted that employees' views must also be considered in the context of Sweeney J's comments in Health and Research Employees Association v University of New England [1984] AR (NSW) 623 at 625 - 626; where his Honour noted that all unions will, from time to time, experience disagreements within its membership. Whilst such matters may be resolved through the employees exercising freedom of choice and resigning from the union, it was in the interests of long term industrial stability to avoid competition for membership and resolve disagreements by internal democratic process. It was also submitted that this approach accords with the promotion of the object of the 1996 Act found in s 3(d), being "to encourage participation in industrial relations by representative bodies of employees and employers and to encourage the responsible management and democratic control of those bodies." 232 As to the 1996 Act, it was submitted that the correct approach to be taken to the making of a demarcation order has more in common with the 1940 Act than the 1991 Act, notwithstanding Hungerford J's comments in NUW v TWU where, it was submitted, his Honour concluded that the approach to the 1996 provisions was the same as that outlined with respect to the 1991 provisions in FIA v TWU (No. 1). 233 Mr Tripodi submitted, with respect, his Honour had applied an approach clearly derived from the 1991 Act authorities and thereby is "to a great extent, improper." Thus, important factors to be considered were traditional patterns of coverage, employees' rights to choose, employer preference and the desirability of single union coverage. That conclusion, it was submitted, was supported by the case of Re Queensland Alumina Ltd (1992) 42 IR 304, where in discussing the absence of defined criteria for the exercise of the demarcation power under s 118A of the Industrial Relations Act 1988 (Cth) ("the 1988 Act"), Munro J held that there is no reason to preclude prima facie weight being given to the retention of existing coverage rights with those rights not to be overridden unless there are compelling reasons relating to the objects of the Act which required it. Traditional patterns of coverage 234 It was submitted that the history of coverage at the site favoured the retention of exclusive coverage by the AWU. The AWU was a party to the awards covering the work in question, being the Drug Factories (State) Award and the 1995 award, while the AMWU is party to neither instruments. In respect of the AMWU's attempts to argue that the Drug Factories (State) Award does not apply and the use of the Therapeutic Goods Administration Act to further that contention, no weight should be accorded to it and no evidence supported it. Further, and contrary to the AMWU's submissions, the Food Preservers (State) Award and the Metal & Engineering (State) Award have no relevance to the work performed at Multi-Fill. 235 The AWU submitted that history of coverage is a significant consideration under the 1996 Act and given that the AWU had been the sole union at Multi-Fill, with the exception of the limited membership of the NUW, its history of membership and award coverage clearly supported the making of orders in favour of the AWU. Further, it was submitted that this would also promote object 3(e) of the 1996 Act, being the facilitation of "appropriate regulation of employment through awards, enterprise agreements and other industrial instruments." Constitutional coverage 236 Mr Tripodi submitted that, having regard to the activities of either the employees or the employer, the AMWU did not have constitutional coverage. The evidence demonstrated that the activity engaged in by the workers may be categorised in a broad sense as "the mixing of chemicals and the filling of aerosol cans through the use of gases, and to a lesser extent, the bottling of liquid products." This includes food and non-food products such as vinegar and oil. Work with gases was performed when the canned product was sent through the gas room to be gassed, which is a main function of the work at Multi-Fill. 237 In light of this evidence, it was submitted that it was clear that the AWU's eligibility rules cover the work while the AMWU's do not. Thus, the work can be characterised as "manual and mental labour in or in connection with the industry or calling of chemicals and gases" and not work in or in connection with the "preparation or putting up of … pickles, salt preparations, sauces, vinegar and other wet condiments." 238 It was further submitted that, even if it conceded that the category of food liquids was covered by the AMWU, it would still only be capable, by its eligibility rule, of covering 4.03% of the work done on site. In contrast to that, the AWU's broad eligibility rule would cover at least all of the chemical aerosols and liquids and food aerosols which make up 95.97% of the work done and 91% of operator hours. Promotion of work practices such as flexibility and multi-skilling 239 It was submitted that the AWU was clearly the better union to promote work practices such as flexibility and multi-skilling and the efficient and productive operation of the workplace at Multi-Fill. It was submitted that this is a relevant consideration in determining the applications: NUW v TWU (at 406). 240 In his oral submissions in reply, Mr Tripodi submitted that the evidence in the proceedings demonstrated that there was a potential for detrimental effects to the company's current productivity and efficiency levels due to the impasse on the negotiations regarding multi-skilling. It was submitted that "multi-skilling does have a very relevant connection with efficiency in terms of what the company sees as being an efficient practice." The AWU relied upon the evidence of Mr Ian McNamara as to what multi-skilling entailed, particularly his evidence that the company was seeking to improve its product and through multi-skilling ensure that the quality of its product was at the highest level. 241 As to what multi-skilling consists of, it was submitted that multi-skilling incorporates two aspects. Firstly, the introduction of line quality control functions into the process and secondly, the broader aspect applying to the entire workplace in that employees may cover gaps when other employees are sick or on annual leave, thereby reducing the amount of casuals used. 242 In response to the AMWU's submission that the employees were concerned about lack of training rather than undertaking multi-skilling, the AWU referred to the evidence of Mr McNamara which clearly showed that training sessions were conducted and ceased only because the workers undertaking it decided they did not want to do so. 243 It was the AWU's submission that the opposition to multi-skilling had no rational or sound basis. In this respect, the AWU relied upon the evidence of Ms Mooney and Ms Moore. It was submitted that Ms Moore admitted that the functions of the company would be improved if people understood all the processes and were able to perform work at various stages on the line, and this would have the effect of reducing the number of casual employees while increasing the number of permanent employees. 244 Lastly, as to this aspect, it was submitted that the only reason certain employees left the AWU and joined the AMWU was to avoid the implementation of multi-skilling, despite the fact that provisions dealing with multi-skilling existed in the current award. It was, therefore, contended that the AWU is clearly the better union to promote efficient and productive work practices at Multi-Fill. Employee preference 245 It was conceded by the AWU that the majority of its members on site had left the AWU and joined the AMWU. However, it was contended that this must be put into an objective perspective and the reasons for this preference must be tested against a range of considerations beyond the subjective preference of employees, such as the interests of the employer, another organisation and the public interest. It was submitted that what is important is the industrial reality and the reasons for such a preference: per Hungerford J in NUW v TWU (at 408). 246 The AWU submitted that multi-skilling, and the desire of employees to avoid it, was the reason for the apparent preference of the employees for the AMWU. It was submitted that the affidavits of Mr Jovanovski, Mr McConville, Mr Partridge and Ms Skillman generally established that employees favouring and accepting multi-skilling remained with the AWU and those opposing it resigned and joined the AMWU. 247 The AWU refuted the proposition that AWU members had resigned because they were dissatisfied with the level of service provided by the AWU. It was contended that Ms Mooney admitted in her evidence that the AWU "serviced general member concerns" and took part in Consultative Committee negotiations. The AWU further submitted that Ms Mooney admitted having discussed issues covered in her affidavit with all women on the line and contended that, accordingly, any evidence from AMWU members as to lack of service was unreliable. 248 Further evidence said to support the AWU's position of the unreliability of evidence as to dissatisfaction with the AWU was found in examples of episodes where the AWU had achieved good outcomes for its members. It was submitted that Ms Moore stated that she was not aware that, at her request, Mr McConville and Mr Jovanovski took up the issue of her becoming a permanent employee as evidenced in the affidavits of Mr McConville and Mr Jovanovski. 249 Further, the AWU submitted that Ms Mooney could also recall the 1999 meeting relating to the Agreement where Mr McConville went through the contents of the Agreement and employees voted to approve it. Later, when some employees became dissatisfied with the AWU, Ms Mooney contacted the AMWU after Ms Moore put a card with AMWU contact details on the lunchroom table. 250 Mr Tripodi further contended that on the authority of Munro J in Re Queensland Alumina Ltd, the right of employees to join a union of their choice is relevant but cannot be elevated above other considerations. If it were the case that employees' preference was a determinative factor, there would be little room for an assessment of other factors going to the exercise of the jurisdiction (see Munro J at 326 - 327). It was submitted that the factual circumstance in this regard may be compared to that which existed before the Federal Commission in Olex Cables & Ors v National Union of Storeworkers, Packers, Rubber & Allied Workers & Ors (1990) 35 IR 368. It was submitted by the AWU that the same result should follow in this case as, if the AMWU were to be granted representation rights, further disputes would follow, given that the company still intends to multi-skill its workforce and the AMWU supports the employees opposed to such a course. 251 It was thereby submitted for the AWU that despite the majority of employees favouring the AMWU, the AWU should retain representation given that the views of the employees were generally unreasonable and did not reflect the capacity of the AWU to represent the employees. Employer Preference 252 The AWU submitted that the views of the employer are a relevant consideration in the making of a demarcation order, however, they are not determinative. 253 The reasons advanced for employer preference, it was submitted, were often motivated by operational advantages gained through single union representation such as flexibility and efficiency, avoidance of disputes and enterprise bargaining advantages. It was submitted that it was reasons such as these which led Multi-Fill to support the AWU's application. Conduct of the AMWU 254 The AWU submitted that the AMWU had exhibited industrial misconduct and this should influence the making of orders in favour of the AWU. In support of this submission the AWU relied upon the decision of Hungerford J in NUW v TWU (at 414 - 415) where his Honour discussed the misconduct of the NUW and the impact of that misconduct. 255 It was further submitted that the affidavits of Messrs Jovanovski, McConville, Partridge and Ms Skillman, demonstrated how the AMWU had taken industrial action at the site. It was also contended that for a significant period the AMWU failed to follow a recommendation of the Commission aimed at resolving the dispute in November 2000. 256 The AWU referred to the submission of the AMWU that the AWU delegate, Mr Jovanovski, had been a delegate for twelve years but had only stood for election once and it was, therefore, not surprising that there was industrial chaos in the workplace. In response, the AWU submitted that if industrial chaos arose in the workplace it only arose when the AMWU entered the site. 257 The AWU submitted that the making of the orders sought by the AWU would satisfy the object in s 3(g) of the 1996 Act "to provide for the resolution of industrial disputes in a prompt and fair manner." Submissions of AMWU Principles 258 The AMWU submitted that the Commission has the power to make the orders sought under ss294 and 295 of the 1996 Act. The AMWU relied on Hungerford J's decision in NUW v TWU where his Honour discussed, at 369, the wide ambit of discretion available to the Commission that is to be exercised "in accordance with all the circumstances and having in mind the objects of the statute ..." 259 The AMWU then addressed the issue of the factors to be taken into consideration in making a decision pursuant to ss294 and 295 of the 1996 Act. The AMWU relied on the principles enunciated by Hungerford J in FIA v TWU (No. 1) (at 155). Hungerford J stated that a decision as to demarcation should be reached by objective consideration of the relevant factors. Those factors were set out in the decision and included considerations of promoting efficiency and economy, including moving to consolidate workplaces under single union coverage; the starting point being a true categorisation of the work undertaken within the workplace and within that industry; the findings then being applied to the interests of the employees in the context of the needs of the enterprise. 260 The approach in Federated Ironworkers' Association of Australia, New South Wales Division v Transports Workers' Union of Australia, New South Wales Branch (1995) 62 IR 90 (FIA v TWU (No. 2))was followed by Hungerford J in NUW v TWU (at 368), which decision was relied upon by the AMWU. 261 Principles applicable to the exercise of the Commission's discretion are also found, it was contended, in Health and Research Employees Association of NSW v Public Service Association of NSW (1997) 92 IR 158. This was, it was submitted, an appeal from a decision given by Schmidt J regarding a demarcation dispute between Health and Research Employees Association of NSW and the Public Service Association of NSW which considered the provisions of s221 of the 1991 Act. It was submitted that the following principles emerged from the Full Bench decision: 1. It was not a determinative factor that some employees were dissatisfied with an industrial organisation. 2. The question posed by the Commission in first instance as to whether there should be any alteration to the practical position which had existed in the past, was correct and to be assessed in light of the evidence. 3. The test under the legislation was to do what was in the interests of the employees and the workplace, rather than the organisations. 4. The Full Bench did not agree with the submission of the Health and Research Employees Association that Schmidt J had made a decision based purely on that union's conduct, which was found to be more reprehensible than the conduct of the Public Service Association. Instead, it was one of several factors which Schmidt J had regard to in determining the interests of all of the employees in light of the evidence. 5. The Full Bench, whilst finding that Schmidt J had not erred in the exercise of her discretion, did state: We should say, having regard to all of the evidence including that concerning the history of inaction by the PSA in representing the interests of psychologists in relation to pursuing a separate award for them, and the widespread dissatisfaction therewith amongst psychologists - with a large majority favouring and joining the HREA - that we may well have reached a different conclusion to her Honour in the disposition of the applications qua that class of employee. 262 It was submitted that an important factor to be considered by the Commission is the servicing record of the unions involved and the views of the Australian Council of Trade Unions (ACTU). It was submitted that these considerations, along with those already raised above, were brought together in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers - Western Australian Branch (unreported, File No FBM 1/2000, 2000 WAIRC 00552), a decision of the Full Bench of the Western Australian Industrial Relations Commission which concerned an application under s72A of the Western Australian Industrial Relations Act, 1979. The AMWU submitted that the principles in the leading cases, including NUW v TWU, FIA v TWU (No. 1) and Sydney Coal Lumpers Union v Federated Engine Drivers and Firemens Association of Australasia (New South Wales) (1991) 38 IR 265, were summarised and brought together in this decision. The relevant factors discussed in the decision, it was submitted, were as follows: 1. Constitutional coverage and eligibility 2. Employer preference and the interests of the employer 3. Employee preference and the interests of the employees 4. Discouragement of overlapping coverage 5. Established pattern of membership and award and agreement history 6. The industrial behaviour of the organisations concerned 7. The advancement of the objects of the Act. 263 Ms Terpstra further relied on the decision of Boland J in Public Hospital Employees Skilled Trades (State) Award [2001] NSWIRComm 41. It was submitted that Boland J adopted the correct approach in reviewing the relevant factors to be taken into consideration. 264 The AMWU also referred to the decision of Deane J in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 in relation to the exercise of discretion in the absence of relevant criteria, where it was held (at 375): In a case … where relevant considerations are not specified, it is largely for the decision maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide. 265 It was submitted by the AMWU that the Commission should approach with extreme caution and should not adopt principles established by the AIRC in the exercise of its powers under ss118 and118A of the 1988 Act. 266 The AMWU contended that the circumstances prevailing in the union movement during the former Federal governments do not exist today and the purpose of the former legislative schemes was specifically to address evolving demarcation disputes where there were multiple unions present at one site. Furthermore, it was contended, the former Federal legislation was guided by policy considerations which are not relevant in the present State legislative regime. 267 An analysis and comparison of the previous Federal legislative regimes to the current State legislative regime was necessary, submitted the AMWU, in order to ascertain the relevance, if any, of the import of decisions of the Australian Industrial Relations Commission. 268 The AMWU referred to the relevant provisions of ss2 and 144 of the Conciliation and Arbitration Act 1904 ("the 1904 Act"), ss3 and 118 of the 1988 Act and the 1990 amendments to the 1988 Act. It also referred to the decision of the AIRC in Federated Miscellaneous Workers Union of Australia v National Union of Storeworkers, Packers, Rubber & Allied Workers (1990) 35 IR 314 where the Commission granted exclusive coverage to the FMWU over employees in the paint industry. It was submitted that the Commission took into consideration the following: · A concern that demarcation issues would impede better work management techniques; · The broader constitutional coverage of the FMWU; · Single union sites as being conducive to settling demarcation problems; · The policy of the Act as being consistent with single industry unionism · The need to end demarcation issues as outweighing the rights of employees to be represented by the union of their choice, including giving little weight (in the circumstances) to the defection of the FMWU members to the NUW. 269 The AMWU next referred to Re Queensland Alumina Limited where Munro J held (at 309): The power to make an order under s 118A is a discretion at large subject to the obligations under subsection 118A(2) and the requirements of the Act in relation to the general functions of the Commission. 270 Reference was also made to Munro J's comments as to the introduction of object (k) into the 1988 Act as follows (at 316): The addition of that object … suggests that the intention now reflected in the Act is to load the balance more heavily toward "rationalisation of industrial representation " than was the case at the time of the decision in the Southern Aluminium case. 271 It was contended that, notwithstanding these findings, Munro J had difficulty in determining the appropriate criteria to be applied in determining demarcation disputes. The AMWU submitted Munro J had endeavoured to strike a balance between rights of the individual and the public interest. It was found that even broad or subjective discretionary considerations are subject to certain considerations (at 321). 272 It was submitted by the AMWU that Munro J (at 324 - 325) gave detailed consideration to the award history, the history of the employees at the site, the AWU's presence as one of the dominant unions in the aluminium industry and the eligibility rules of the respective organisations. 273 The AMWU also referred to Building Workers' Industrial Union of Australia & Ors v Federation of Industrial, Manufacturing and Engineering Employees & Anor (No 1) (1992) 44 IR 158 where, it was contended, the AIRC had held that the union movement was primarily responsible for its own rationalisation and an important consideration for the Commission to take into account was the level of agreement between unions as to the orders proposed. 274 Further, the AMWU submitted that, in Re Textile, Clothing and Footwear Union of Australia (AIRC Williams DP, print L1294, 19 January 1994, unreported), Williams DP referred to the wide discretion conferred by s118A and that even when the Commission was requested to make orders by consent, it was not obliged to do so. However, it was contended, Williams DP went on to state that the level of agreement reached between unions about rationalisation was a matter which should be of substantial influence upon the Commission in the exercise of its discretion. 275 The AMWU referred to Construction, Forestry, Mining and Energy Union v Federation of Industrial, Manufacturing and Engineering Employees (unreported, MacBean DP, 9 November 1993, print K9844) where an order was made under s118A(1) granting exclusive representation to the CFMEU. MacBean DP observed that there had been overlapping coverage and competition for membership between the parties. A main consideration for granting orders in favour of the CFMEU, it was contended, was the strong support that it enjoyed against the majority of affected members. 276 It was submitted by the AMWU that "Munro J's approach, and the approaches of other decisions outlined in the synopsis above gives primacy to the eligibility rules of the relevant union, noting that in Re Queensland Alumina Limited the FEDFA's eligibility rule was specific in that it is employee and occupation based." This approach, it was contended, was consistent with the submissions made by the AMWU regarding the interpretation and applicability of eligibility provisions and the broad and expansive approach that must be taken when interpreting such rules. Notwithstanding this submission, it was contended by the AMWU that the above decisions arose essentially from a different legislative context, which resulted in the decision maker having to consider matters including union rationalisation, terms of agreements and general policy considerations of single union coverage. The AMWU submitted that those considerations were not in the mind of the legislature when the NSW provisions were enacted. 277 It was submitted that no guidance can be obtained from the Second Reading Speech of the NSW State Parliament as to the intention of the demarcation provisions of the 1996 Act. This, submitted the AMWU, was in contrast to the clearly expressed views in the Second Reading Speech preceding the passage of demarcation provisions in the 1988 Act. The considerations of public interest and rationalisation of coverage which underlay the former Federal regime, it was contended, were non-existent in the State system. It was submitted that the power to make orders under ss294 and 295 of the 1996 Act is clearly expressed to be discretionary and, therefore, it was not appropriate to import demarcation decisions from other jurisdictions made under a different statutory scheme. 278 Furthermore, the AMWU submitted "the current situation at Multi-Fill is not analogous - there is multiple union coverage already, although the NUW apparently co-exists in harmony with the AWU. The issue is really about the AMWU challenging representative rights based on the supremacy of its eligibility rules as one factor. The AWU and ABl attempt to find voice in the principles of single union coverage and rationalisation, however, this argument, if accepted, the AWU may also become a victim of its own argument it advances in regard to this case at some other time in the future." Constitutional coverage and eligibility 279 The AMWU submitted that its eligibility rules provided coverage of workers engaged in the bottling or putting up of, amongst other things, pickles, salt preparations, sauces, vinegar and other wet condiments. Based on its eligibility rules, the AMWU contended that it has coverage of the following positions: process workers, mixers, line setters, production supervisors, maintenance supervisors, QC inspectors, lab analysts and chemists. 280 Notwithstanding their reliance on FIA v TWU in their first and second written submissions, the AMWU in their final written submissions contended that the test enunciated in FIA v TWU "should be contrasted with the decision" of the Full Court of the Federal Court in Federated Tobacco Workers Union of Australia v Amalgamated Metal Workers Union and Anor (1988) 29 IR 263. In FTWU v AMWU an issue arose as to the scope of the eligibility rules of the Amalgamated Metal Workers' Union (the predecessor of the AMWU which shall also be referred to as the AMWU), in relation to the employees engaged at the WD & HO Wills (Australia) Limited plant at Pagewood in New South Wales. The Court (at 265 - 266), it was contended, considered the proper construction of the AMWU eligibility rule and referred to Food Preservers Union of Australia v The Manufacturing Grocers' Employees' Federation of Australia (1986) 29 IR 243, where Northrop J held that the principles to be applied in determining the construction of an eligibility rule were summarised in the High Court decision in Re Williams: Ex parte Australian Building Construction Employees' and Builders' Labourers' Federation (1983) 57 ALJR 38 at 39 - 40. Thus, it was submitted, eligibility rules of a union must be construed objectively. 281 The Federal Court, it was submitted, considered the alteration of the AMWU rules in January 1972, the opening words of which were: "The Union shall consist of an unlimited number of persons who are employed or usually employed in or in connection with the following trades or callings or branches thereof …". The Court interpreted this rule expansively (at 271). 282 Relying upon FTWU v AMWU and the approach of the Federal Court in Electrical Trades Union of Australia & Anor v Waterside Workers Federation of Australia & Ors (No 2) (1982) 59 FLR 78, it was submitted that, when the rules of the AMWU refer to an industrial pursuit, they should be seen as referring to the performance of general functions rather than to the precise activities which may be liable, by reason of changing technology or technique, to be displaced by substituted or varied activities. 283 The AMWU submitted that its rules (being the rules of a State organisation) mirror the Federal rules of the AMWU, and therefore the principles referred to in these authorities are applicable in this matter. 284 It was submitted by the AMWU, in its final written submissions, that, if the above approach was applied in the present matter, it then becomes unnecessary to categorise the industry in which employees are engaged. To apply the categorisation of an industry test would, in an indirect way, it was contended, have the effect of limiting the interpretation of the eligibility provisions as applied by the Federal Court in FTWU v AMWU. 285 It was submitted that the correct approach often observed by the Commission involves a consideration of the other relevant criteria referred to by Boland J in Public Hospital Employees Skilled Trades (State) Award. History or pattern of coverage 286 Ms Terpstra conceded that history of union coverage at the site is a relevant consideration in determining whether demarcation orders should be made and the history at the site favours the AWU. 287 The AMWU also contended that the evidence of history or pattern of traditional union coverage favouring the AWU had only been made out conclusively back to 1995. 288 Further, the AMWU submitted that the bulk of the work now carried out by Multi-Fill fell outside the application of the Drug Factories (State) Award. This warranted a review of the history of coverage. Employee preference 289 It was submitted that the majority of employees at Multi-Fill were AMWU members. The views of the ACTU, "use it or lose it", were, therefore, relevant. 290 Relying upon NUW v TWU, Ms Terpstra submitted that particular weight should be given to the views of the employees. Further, the objects in the Act support the democratic involvement of workers in the affairs of registered organisations which, it was contended, underlies their right to choose to belong to an organisation that has coverage. The AMWU referred to the evidence of Ms Moore, Mr Gray, Ms Mooney and Ms Howe to support its contention that employees joined the AMWU because of their dissatisfaction with the AWU. 291 The AMWU relied on Mr Jovanovski's evidence, as to his only once in twelve years standing for election as the AWU delegate, to support its proposition that there has been no democracy in the workplace at Multi-Fill. 292 I have earlier referred to the AMWU submission on multi-skilling that there was not a reluctance to undertake multi-skilling, but rather concerns about lack of training, occupational health and safety issues and job security. It was submitted that the AMWU members' position was that they were not opposed to the concept of multi-skilling but more concerned with its implementation in its current form. This position, it was submitted, is to be distinguished from the situation where members say, "We don't want to accept it at all." The AMWU submitted that there were genuine concerns raised by the employees as to the implementation of multi-skilling and those concerns remained substantially unaddressed by the company (and by the AWU and that had led to the loss of membership by the AWU). 293 It was submitted that it was in the interests of the employees of Multi-Fill to remain members of the AMWU so as to have a framework that would allow negotiation of agreed conditions and "eliminate uncertainty". This would give effect to the objects of the Act. The AMWU contended that the prevalence of unregistered enterprise agreements at Multi-Fill did not meet the objects of the Act as they have not been tested to ascertain whether they are fair and just. They may not meet the Commission's requirements for certification. Further, the unregistered agreements, it was contended, inhibit the ability of employees to pursue claims before the Chief Industrial Magistrates Court in the event of a dispute over underpayment. The AWU, it was contended, recommended that this is the appropriate way to govern workers conditions since 1995. Employer preference 294 It was submitted that it would not be in the employers' interest to have the AMWU denied coverage of workers at Multi-Fill. The evidence of Mr Harris and Ms Dowell should be weighed against assertions about the employer's interest and preference. The AMWU, it was submitted, had acted responsibly and raised issues of concern with management. There had been a number of dealings between the AMWU and management and, it was submitted, management had not refused to deal with the AMWU and had continued to deal with it. 295 It was submitted that the arrangements being sought by the AMWU would facilitate the employer efficiently and effectively negotiating with the employees' representatives to achieve a framework for agreed conditions. The issue of the unregistered enterprise agreements was one of a number of concerns of the workers at the site, it was contended, which resulted in a "charged industrial environment" which ultimately led to a high level of dissatisfaction with the AWU. 296 Multi-Fill and its management, it was contended, deliberately attempted to influence the workers decisions to become members of a union of their own choosing. It was submitted that this was done in two ways. Firstly, the decision to pay the $13.50 increase only to AWU members (although it was conceded by the AMWU that the AMWU members would not accept the increase). This, contended the AMWU, resulted in the company creating two classes of union members in the workplace and thereby exerted financial pressure on workers to rejoin the AWU. Secondly, the AMWU submitted that Ms Moore was targeted by the company as a result of the company's mistaken belief that she was the cause of the employees joining the AMWU. It was submitted that a company should not be able to dictate to employees or exert pressure designed to influence their decision as to which union they belong. Such action, it was contended, offends the freedom of association principles in the 1996 Act. 297 It was submitted that there was little to shed light on the needs of the enterprise. In support of this proposition, the AMWU contended that there was no evidence, or little evidence, adduced by the company concerning any potential effects that may result from the introduction of another union into the workplace. 298 The actions of the company in continuing to deal with the AMWU should be seen, it was contended, as the true barometer for their preferences and interests in the matter. Conduct of the organisations and Multi-Fill 299 The AMWU submitted that it had acted in an industrially responsible manner, complying with dispute procedures and holding discussions with management prior to pursuing other options. The affidavit of Mr Harris was relied upon as to the conduct of the union and it was submitted that neither the company nor the AWU adduced evidence to show improper conduct on the part of the AMWU. In response to Mr Vernier's submissions concerning the purported bad behaviour of the AMWU, it was contended that the conduct of the AMWU had been nothing more than the usual "cut and thrust" of industrial relations and negotiations at the workplace. 300 In response to the AWU's submission that its conduct amounted to a "poaching" exercise, the AMWU distinguished its conduct from active "poaching" where members of another union are approached "actively". It was submitted that during the period from approximately mid August 2000 to at least September 2000, members joined the AMWU and those members had not been actively pursued by the AMWU. Instead, it was contended, it had been left to the person who joined the AMWU to assess, prior to joining, what assistance could be afforded them by the AMWU. Further, the workers' dissatisfaction at the workplace was not supported by the AMWU. There were issues the AWU had sought to raise on their behalf, however, they had been dissatisfied with the reporting back or the representational issues. It was submitted by the AMWU that "the issue was boiling in the workplace" long before the AMWU arrived. 301 In relation to the Bargaining Notice served on the company under the Workplace Relations Act 1996, the AMWU referred to the evidence of Mr Harris to support a contention that it was not the intention of the AMWU to make major changes, but rather to get Multi-Fill to negotiate. The main goal of the union, it was contended, was to represent its members and to assist in the resolution of any industrial issues that had occurred in the workplace with the view to concluding a registered agreement. It was submitted that the AMWU does not intend to prevent the company from implementing workplace reform consistent with the requirements of the Act. Further, in response to a question posed by the Commission in relation to the introduction of multi-skilling, the AMWU conceded that its position was "to get it right, that it can be implemented." The AMWU submitted that what is relevant is its record of adhering to legitimate industrial procedures in an effort to secure a certified agreement for their members. It was submitted that an agreement may have been reached "with the company on the particular jurisdiction that the company wished to be covered by if it was raised by the company." 302 It was submitted that the presence of the AMWU at the site and the way it dealt with its members was designed to restore industrial harmony to the workplace and to negotiate conditions which would give rise to the conduct of industrial relations in a fair and just manner. 303 Multi-Fill, it was contended, had provoked the AMWU into taking some form of industrial action. The AMWU, in support of this submission, referred to Multi-Fill's behaviour, without specifying exactly what behaviour they were referring to, in the dispute before Kavanagh J and the company's treatment of Ms Moore. 304 In response to the AWU's submission alleging negative behaviour by the AMWU after the recommendation made by Kavanagh J, it was submitted that a distinction had to be drawn between the workers determining themselves not to perform the work (which is acknowledged), and the AMWU actually persuading its members to refuse to perform overtime. 305 In relation to the industrial behaviour of the AWU, the AMWU referred to the evidence of its members as to their concerns with the AWU, including the lack of representation or assistance and not having their industrial needs met, particularly with regards to multi-skilling and an organiser not being available. The AMWU referred to Mr Jovanovski being elected as the workplace representative six or seven years previously and not being present at the election as he was on holidays. The union disputed Mr McConville' evidence that he regularly attended Consultative Meetings on behalf of members. It was submitted that, had the employees of Multi-Fill been appropriately represented by the AWU, there would not have been such a high level of dissatisfaction. It was submitted that the conduct of the AWU at the workplace offended the objects of the Act. The evidence of Mr Harris, it was submitted, demonstrated that a harmonious working relationship existed between AMWU and AWU members at the Reckitt Benckiser site where members of the AMWU were engaged in similar functions to that performed at Multi-Fill. Further, submitted the AMWU, this evidence of Mr Harris was not challenged in the proceedings. 306 The AMWU submitted that it has demonstrated its ability to service membership in a responsible manner that meets the objects of the Act. The AWU's conduct was not consistent with the objects of the Act. 307 The AMWU referred to, and submitted as opportunistic and unsupported by evidence, the submissions of the AWU and Multi-Fill that it was the introduction of the AMWU to the workplace that precluded the introduction of multi-skilling. The evidence, it was contended, showed that workers were objecting to the process in January 2000, some nine months before the AMWU appeared at the workplace. The AMWU referred to Mr Vernier's acknowledgement that it had taken the company almost four years to utilise its capacity to introduce multi-skilling and submitted that the AMWU was being blamed for problems that arose with the implementation of multi-skilling. The implementation of multi-skilling, it was contended, involved a normal run of the mill industrial dispute which had been used in these proceedings by the AWU and the company to disparage the AMWU. 308 The AMWU submitted that the company's intent on blaming Ms Moore for the AMWU's appearance at the site, based solely on Ms Moore's personal relationship with an AMWU organiser, was conduct on the part of Multi-Fill which should be taken into consideration by the Commission. Ms Moore, it was contended, had nothing to do with the members leaving the AWU and joining the AMWU. Rather, it had been a group decision and this was supported by the evidence of Ms Howe. It was submitted that the suggestion of Ms Moore putting a card on the table and therefore inciting members to move away from the AWU, was not supported by the evidence. It was clear from the evidence, it was contended, that it was Ms Mooney who telephoned the AMWU. 309 There has been no evidence adduced by the AWU or Multi-Fill, contended the AMWU, as to the potential for detriment to the company's current productivity or efficiency levels or any detrimental impact that may be experienced by the company due to the impasse on the negotiations regarding multi-skilling. Single union coverage 310 The AMWU conceded that the general principle regarding overlapping coverage is that it is undesirable to have more than one union representing the interests of employees in a particular industry. The AMWU referred to New South Wales Public Service Clerical Officers' Association v Public Service Association of New South Wales and The Federated Engine Drivers' and Firemen's Association of Australia (New South Wales) v Federated Liquor and Allied Industries Employees' Union of Australia (1983) 6 IR 304. There are, however, exceptions to the general rule that arise out of practical considerations and the need to meet changing circumstances. In support of this submission, the AMWU relied upon the decision of a Full Bench of the Industrial Relations Commission in Federated Engine Drivers and Firemen's Association of Australia (New South Wales) v Federated Liquor and Allied Industries Employees' Union of Australia where the Commission, after noting that it was not bound by precedent, and its purpose being fundamentally concerned with long term industrial peace, held (at 305): … the Commission should be prepared to review its approach to ensure that the purpose and intent of the Act is best served where principles, even though of longstanding, circumscribe discretions to be exercised, not merely in special but also in changing circumstances. 311 The AMWU referred to the description in Mr McNamara's affidavit of the type of work carried out at Multi-Fill and submitted that it was not of a "clear-cut nature" that "would lend itself to the continuation of the present circumstances". Further, it was submitted, Mr McNamara's evidence demonstrated that there had been a change in some of the business conducted by Multi-Fill. Whilst the history of the site may have been of a type more suited for coverage by the Drug and Factories (State) Award, it was submitted that Mr McNamara's evidence, both in his affidavit and under cross-examination, supported the view of the AMWU that the historical situation had changed in such a way as to warrant a review of union coverage and union participation at the site. Submissions of Multi-Fill 312 Multi-Fill submitted that the power of the Commission to make demarcation orders was to be exercised "in the context of a very wide and general discretion; many factors will arise for consideration". Such a discretion should be exercised within reasonable limits and "exercised in accordance with established and known industrial principles as laid down in the authorities". The various factors involved need to be considered "with the ultimate weight to be given to each factor being within the Commission's general discretion to be exercised in accordance with all of the circumstances and having in mind the objects of the statute: NUW v TWU (at 365). 313 The factors which were submitted to be relevant to the exercise of the discretion were those set out by Boland J in Public Hospital Employees Skilled Trades (State) Award (at [17]). 314 One of the matters identified by Hungerford J in NUW v TWU as being relevant to the exercise of discretion in demarcation disputes was the objects of the Act and "particularly of that contained in paragraph (a) as to what is "fair and just" in the objective sense" (at 369). When considering what was fair and just, his Honour considered it was necessary to have regard to the development of "industrial principle in recent years by reference to the emergent and continuing need for individual industries and workplaces to implement structural efficiency measures". It was Multi-Fill's submission that the objects of the Act support rationalisation of unions at the workplace and that to grant the application of the AMWU would offend the "rule" against the multiplicity of unions being active at the one workplace. 315 The characterisation of the industry in which the applicant operates is "a most relevant factor in a demarcation dispute as it represents the area in which an enterprise functions". The undisputed evidence of Mr McNamara was that the principal operations of the company are the mixing of chemicals and the packaging of them into aerosol cans. This, on the evidence, constituted 73.71% of the units produced by the company. 316 These activities occupy some 70% of a process worker's time at work and the entirety of those persons employed as mixers. The products finally produced include household chemicals such as fly and insect sprays, furniture polish, oven cleaner, glass cleaner, ironing spray, air fresheners, stainless steel polish, chewing gum remover, degreasers and hair spray. 317 The company also manufactures some of its own brands of household chemicals which are used to produce the final product, which is then packaged by the company. These products made up, so it was submitted, nearly three-quarters of the company's production. 318 The company submitted that it was engaged in the industry of manufacturing chemicals and/or household chemicals and/or toilet preparations and/or cosmetics or perfumes. 319 The relevant industrial instruments that operate at the plant are the 1995 award and the Drug Factories (State) Award. The evidence of the AMWU's witness, Mr Harris, supported the application of the 1995 award at the site. 320 The 1995 award was made by Maidment J on 4 September 1995 and prevails over the Drug Factories (State) Award to the extent of inconsistency between the two instruments. That latter award applied to, amongst others, employees "engaged in or in connection with the making, preparing, handling, putting up, sale or delivery of … household chemicals, and all employees engaged in or in connection with the making, preparing, handling, putting up, reception, sale or delivery of cosmetics, perfumes and toilet preparations". It was submitted, the fact the 1995 award is underpinned by the Drug Factories (State) award would suggest that the work performed pursuant to it would fall within the industries and callings of the Drug Employees (State) Conciliation Committee. 321 The 1995 award was the subject of an award review pursuant to s19 of the Act before Kavanagh J on 12 August 2001. The evidence showed that historically, the interests of the company's employees have always been primarily represented by the AWU, with the NUW having some presence in the stores. The company submitted that the AWU was a party to both the aforementioned awards and took an active role in the award review process before Kavanagh J. The AMWU was not a party to the relevant awards and did not even enter an appearance in the award review before Kavanagh J, let alone take some active role. The history of award coverage at the company clearly favours the continued exclusive representation of employee interests by the AWU. 322 The company submitted that whilst the question of union coverage was ultimately "a legal question to be solved by legal considerations": R v Aird; Ex parte Australian Workers' Union (1973) 129 CLR 654 at 659, it was instructive to have regard to the relevant eligibility rules of the AWU and the AMWU. Turning firstly to the AWU, Rule 6 of that union's rules provides that: Subject to these Rules all kinds of general labour and every bona fide worker, male and female, engaged in manual and mental labour in or in connection with any of the following industries or callings, namely: … the manufacture of drugs … chemicals … and gases. 323 It was submitted that this part of the AWU rules permitted the employees of the company to be members of the AWU and provided the basis for the AWU to be a party to the 1995 award and the Drug Factories (State) Award. 324 On the other hand, the AMWU Rules provide that its membership may consist of persons engaged in or in connection with the "manufacture, preparation or putting up of" various food products and condiments such as "jam, jellies, honey and preparations used as substitutes therefore; pickles, salt preparations, sauces, vinegar and other wet condiments; soups and other preparations of vegetables and/or animal foods sold in containers …" 325 The relevant award for these classifications would appear to be the Food Preservers (State) Award. 326 The eligibility rules of the AMWU do not refer to the canning or bottling of vinegar, merely the manufacture, preparation or putting up of vinegar. The company does not manufacture vinegar, it merely bottles it. However, even accepting that the AMWU rules encompass the vinegar bottling function, only about 4% of the company's total production related to the bottling of vinegar, occupying some 9% of the time of the company's process workers. Further, to the extent that persons are engaged in the process of bottling vinegar, there are no workers dedicated to that particular task. The evidence from Mr McNamara, Ms Moore and Ms Mooney all indicated that process workers were rotated throughout the various production lines and quality control functions. 327 The company contended that the relevant test, when considering the application of eligibility provisions, is "based on whether the person is engaged substantially in those activities": FTWU v AMWU (at 275). The employees of the company were not engaged to any substantial extent, in the production or the bottling of vinegar. The AMWU's eligibility rule had no application. 328 The company also submitted that its operations included the filling of aerosol cans with vegetable oils, supplied by Meadow Lea. The workers of Meadow Lea are covered by the Meadow Lea Foods Limited Mascot Production Consolidated Award 1995. The AWU is a party to that award - the AMWU is not. The AMWU's eligibility rules do not relate to and do not cover the manufacture, preparation or putting up of vegetable oils. Further, the AMWU does not provide for some of the classifications of work at the company, in particular, the AMWU rules do not provide for a line setter. 329 It was submitted that the evidence demonstrated that line setters were not engaged in maintenance. Such maintenance work was performed by fitters. Further, line setters were not engaged to assist fitters. It was not correct to consider line setters as being "engaged to assist another employee who is performing the task of a metal worker, for example a fitter" and that as such, line setters were not employed in or in connection with the trade or calling of that fitter: see FTWU v AMWU (at 271). The substantial work of line setters is the setting up and pulling down of production lines. They are not engaged to perform maintenance tasks and as such do not fall within the eligibility rules of the AMWU. 330 As to the application on behalf of the AMWU, the company contended that the work of its employees falls to be regulated by the conditions of the 1995 award and the Drug Factories (State) Award. The major and substantial work performed by the company's employees does not fall within the Metal, Engineering and Associated Industries (State) Award, the Food Preservers (State) Award, or the Draftsmen, Planners and Technical Officers (State) Award. 331 The principles which emerge from decisions examining the application of awards may be summarised as follows: 1. The amount of time spent doing a particular task is not necessarily determinative of the primary function of the employee, although it may assist in coming to that conclusion. 2. The quality of the work performed by the employee is a relevant factor in determining what is the major and substantial part of the employee's work. 3. What the employee does in the context of the employer's system of work is important. To this end, the reason for hiring the employee, and the function the employee performs in the context of the employer's operation should be taken into account. 4. How the employee sees the relative importance of her or his functions and the order in which the functions are performed, each have only a minor bearing on determining the primary purpose of the employee's engagement. (See Joyce v Christoffersen (1990) 26 FCR 261, Ware v O'Donell Griffin (Television Services) Pty Limited [1971] AR (NSW) 18, Otto Waste Industries Pty Limited v Klajman (unreported, Matter No 52 of 1985, Cahill J, 20/5/1985) and Merchant Services Guild of Australia v J Fenwich & Co, Pty Ltd (1973) Current Review 6). 332 The major and substantial work performed by the company is the mixing of chemicals to make product which is then used to fill aerosol cans. The work performed by its employees engaged as process workers, line setters, line quality control inspectors, mixers, lab analysts and product development chemists is work in or in connection with the making, preparing, handling, putting up, reception, sale of household chemicals and/or cosmetics, perfumes and/or toilet preparations. This work properly falls within the 1995 award and the Drug Factories (State) Award. 333 Further, the company contended that it would be against the industrial interests of the company and its employees to move it from the historical position of having a single award providing the relevant terms and conditions of employment, to a situation where the terms and conditions of the persons performing the work are regulated by three awards. The AMWU application ought not be granted as it is inconsistent with the objects of the Act and ignores industrial principles developed over recent years requiring individual industries and workplaces to implement structural efficiency changes. That application does not find support in the relevant authorities and lacks industrial merit. 334 One matter which featured significantly in the submissions of Multi-Fill went to the decline in industrial relations between the company and its workforce since the arrival of the AMWU in about September 2000. Whilst that union represented to the company that it would not seek to make "major changes or reinvent the wheel", the company contended that these representations were false and misleading. This was evident in the log of claims served on the company on 31 October 2000, followed by a letter initiating a bargaining period on 1 November 2000. That log of claims, on its terms, sought significant increases to the conditions of employment which were then operative at the company and purported to be made under the federal Workplace Relations Act 1996. Whilst Mr Harris claimed that this was merely a standard log of claims and that he had indicated to the company there was no intention to remove the industrial regulation of the company's employees to the federal system, he conceded that the log of claims was misleading to the extent that it made reference to the Workplace Relations Act and that it did indeed seek significant improvements in conditions. 335 Whilst Mr Harris denied the reference to the Workplace Relations Act in the log of claims indicated an intention to take protected industrial action, the company contended that there was no other reason "if the AMWU was at all genuine" to serve a notice seeking to initiate a bargaining period, but for the purposes of taking industrial action. Protected industrial action was not available under the State system. 336 On 8 November 2000, the members of the AMWU engaged in industrial action at Multi-Fill's premises. This action was the subject of a dispute notification by the company and resulted in a recommendation being issued by Kavanagh J on 16 November 2000 in the following terms: Recommendation That the workers on site accept the offer of the employer of a wage rise of $13.50 per week commencing 23 November 2000 and a guarantee from the employer that the present allowances will continue to be paid. The workers accept this offer for the period of time that is required for Orders as to the appropriate coverage. In accordance with the Award and Enterprise Award workers make themselves available as they have over the last 7 years for the afternoon shift. 337 This recommendation was not accepted, it was submitted, until April 2001. The evidence, particularly that of Ms Howe, was that the employees did not accept the recommendation of her Honour because they did not want to have to do multi-skilling. The company submitted that the recommendation of her Honour was never conditional upon the acceptance of multi-skilling - it included an offer from the company that it would grant a wage rise of $13.50 commencing 23 November 2000 and would continue to pay allowances. In consideration of this offer the employees were to work in accordance with the enterprise agreement thereby maintaining the status quo, and to not engage in any industrial action until the dispute was resolved (see ex 36). 338 Mr Harris conceded that the offer was not conditional upon multi-skilling and that the reason that the members of the AMWU continued to direct him not to accept the company's offer on their behalf was that they thought it required them to adopt multi-skilling. 339 The company contended that the evidence demonstrated a clear state of industrial disharmony in the relations between itself and the AMWU. This included the taking of unwarranted industrial action and misleading of the company by representatives of that union. 340 One further matter which was addressed in the submissions of Multi-Fill, although it was submitted that it should be of little weight, was the preference of the employees as to their union representation. The company contended that the Commission should go behind the mere statements of preference of one union over another and look to whether there was a basis for such a preference. It was submitted that the evidence in these proceedings demonstrated that the employees who had a preference for the AMWU had not demonstrated any valid reason as to why they were dissatisfied with the representation of the AWU. The only reason for the movement from the AWU to the AMWU sustainable on the evidence was the desire of employees to avoid multi-skilling. 341 The evidence of Mr Gray was that he simply decided to change unions because others in the workplace had decided that was the way to go. Ms Howe's evidence demonstrated that she had switched unions firstly due to the loss of conditions such as "dirt money" and to avoid multi-skilling. However, she later conceded that the lost conditions had been compensated by adjustments in other conditions of employment. Ms Howe also indicated that the decision to move the AMWU was made after Ms Moore suggested it as an appropriate union. Ms Moore expressly denied having put forward the AMWU as an alternative union for the workforce. 342 The evidence of Ms Moore makes it plain that she was vehemently opposed to multi-skilling. There was no other credible evidence from Ms Moore which would indicate a desire to alter the long standing representation by the AWU. 343 Ms Mooney was opposed to multi-skilling because she was concerned that it would result in a loss of jobs at the company. This concern was, in the company's submission, unfounded. On the form of multi-skilling proposed by the company, it was submitted that no permanent employee would lose their job. 344 The company contended that the preference of the employees for the AMWU was clearly based on an avoidance of multi-skilling. This was contrary to the objects of promoting efficiency and productivity at the workplace. 345 Multi-Fill contended that the uncontested evidence of Mr McNamara indicated that employees had refused to undertake training for multi-skilling because they did not want to do multi-skilling. No evidence was called from the AMWU to dispute this fact, nor was there any evidence called by the AMWU from its members who attended training sessions on 10 or 11 July 2000. The company contended that the inference to be drawn from this lack of evidence was that the AMWU members who attended the training of 10 or 11 July refused to do multi-skilling not because of a lack of training but due to the process itself. This desire by employees to avoid multi-skilling should have little weight in the Commission's consideration. As was observed by Hungerford J in NUW v TWU (at 406): … it is worth repeating that, in my view, the contemporary functioning of industry requires emphasis to a range of wider issues in resolving demarcation disputes. Prime amongst those issues is the efficient and productive operation of a workplace, free from impediments and promoting work practices such as flexibility and multi-skilling, within the setting of the relevant industry group, so as to benefit from commonality and community of interest for both employers and employees in a stable industrial relationship; and that is desirable of achievement regardless of long-standing constitutional coverage by a particular organisation. 346 The company contended that work practices such as flexibility and multi-skilling are essential and any impediment to these should weigh heavily against making orders sought by the AMWU. The AWU had always supported multi-skilling. This should weigh heavily in the Commission's consideration. 347 It was submitted by Mr Vernier that whilst the 1995 award provided for the introduction of multi-skilling, it was at the Consultative Committee meeting held on 5 May 1999 that "the issue of multi-skilling" first arose. Multi-Fill believed that multi-skilling should be introduced to enable the company, it was submitted, "to remain in existence and to improve its produce." According to Mr Vernier's submission, further evidence as to why the company wished to implement multi-skilling was contained in the minutes of the Consultative Committee meeting held on 3 February 2000. He referred particularly to the statements of Mr McNamara in the meeting that "what we are trying to do here is to build more quality into our product" and "We want to improve our productivity and quality. We want to improve our processes and operators." Mr Vernier also referred to Mr Toole's statement in the same meeting that "what we are trying to do is get up to a normal situation so we can survive. We are behind already. This could have been implemented some years ago and it is the only way there is. We have to have a more skilled workplace." 348 The company contended that the AWU has had coverage of its workforce for over 20 years and maintained a good working relationship with it which provided a stable and harmonious working environment. The introduction of the AMWU would affect that relationship. The company supported the orders sought by the AWU and the dismissal of the application by the AMWU. consideration 349 It is appropriate to commence the Commission's deliberation in this matter with a discussion of the principles relevant to the determination of a question as to the demarcation of industrial interests pursuant to s294(1) and the making of a demarcation order pursuant to s294(2) (and s295) of the 1996 Act. In that light, I shall firstly deal with some broader aspects of the nature of the Commission's discretion in this respect before turning to the assessment of particular factors relevant to the determination of this matter. Nature of Discretion 350 In Re Public Hospital Employees Skilled Trades (State) Award, Boland, J, after considering the decision of Hungerford, J in NUW v TWU, identified a number of factors which may be relevant in the determination of a demarcation question under the 1996 Act. His Honour stated [at 17]: Acknowledging the quite different factual circumstances between NUW v TWU and the case before me, I have, nevertheless had regard to the helpful analysis by Hungerford, J in that case of factors that might be taken into account in the determination of demarcation questions. I consider that the relevant factors in the present case are: 1. The constitutions of the competing unions. 2. The history of industrial coverage and representation. 3. The history of the award coverage and representation. 4. The wishes of employees affected. 5. The attitude of the employer. 6. The state of industrial relations. 7. The issue of multiple union coverage. 351 His Honour also observed that there were two other factors taken into account in NUW v TWU, but did not emerge as significant issues in the proceedings before him. Those factors were the impact of the demarcation questions on the productivity and efficiency of an employer or an industry, the subject of those questions, and the industrial behaviour of affected industrial organisations. 352 An examination of the jurisprudential history of the determination of demarcation questions in this Commission and its predecessors (under former legislative schemes) demonstrates, in my view, that his Honour was correct in identifying the aforementioned factors as considerations which may be relevant to the determination of such questions (as were the aforementioned factors which his Honour was not obliged to consider in the particular circumstances of the matter). 353 The significance that those factors will, in the determination of a demarcation question, however, depend upon the statutory scheme under which the demarcation question arises for consideration and, as his Honour observed, the facts and circumstances of a particular matter. I note, in this respect, that in the discussion of various factors in these considerations I should be taken as applying my earlier findings of fact without the need to repeat them except where elaboration is required in reaching a conclusion. 354 The present statutory scheme for the resolution of demarcation questions confers a broad discretion upon the Commission in determining demarcation questions and making orders with respect to same. There is recent authority under the 1996 Act bearing upon the exercise of that discretion (see NUW v TWU). However, an understanding of the proper exercise of that discretion will also be assisted, in my view, by an examination of the relevant history of statutory provisions governing demarcation proceedings and the principles developed in the context of those statutory schemes. 355 Section 36 of the 1940 Act is a statutory predecessor to ss294 and 295 of the 1996 Act. Section 36 was in the following terms: 36 Demarcation, jurisdiction and codification of awards, etc. (1) The commission may, on the application of the Minister, or an employer, or an industrial union, determine any question as to the demarcation of the industrial interests of trade unions and industrial unions, and may also codify into one award, subject to such amendments as it may deem expedient to make, all awards binding or affecting any employer or class or section of employers in any industry or group of industries or the members of an industrial union employed by the same employer or class or section of employers. 356 The first matter for determination in proceedings under that section was the question of whether the competing unions had constitutional coverage over the work and subject employees according to their respective eligibility rules, although where a respondent union was found not to have constitutional coverage the applicant union (with such coverage) may still be entitled to a demarcation order if the circumstances made such an order desirable: Sydney Coal Lumpers Union (at 266). 357 Section 36 did not, on its face, require that an applicant industrial union have constitutional coverage for the class of employees who were the subject of an application under the section. It is not entirely clear from a review of the authorities that the former Industrial Commission required demonstration of such coverage as a pre-condition to bring an application. It is clear, however, that the constitutional coverage of competing unions was generally determinative of demarcation proceedings brought under s36 where the respondent union lacked constitutional coverage for the contested area of work: see Federated Clerks' Union of Australia, NSW Branch v Australian Workers' Union [1971] 71 AR 419 at 420 and Re MSB Officers' Association v Seamen's Union of Australia, New South Wales Branch [1981] AR (NSW) 900 at 912. (It should be noted that CP Mills, in NSW Industrial Laws, 4th ed at 784 refers to the question of constitutional coverage as being a primary factor in determining demarcation questions). 358 Where two competing organisations were both constitutionally competent, it generally became necessary to look at other factors: Federated Miscellaneous Workers' Union v Federated Liquor and Allied Industries Union [1964] AR (NSW) 628 at 629 per Sheehy J. As was colourfully expressed by Sheldon, J in the Scientific Officers (Public Hospital Scientists) Award (unreported, 7 September 1973, at 4) "while constitutional rights are the sine qua non, they are far from being the be - all and the end - all". 359 There were no specific legislative criteria within the 1940 Act governing the exercise of the Commission's discretion under s36. Matters which were relevant to the exercise of discretion in those circumstances included a long history of coverage, an undoubted capacity and ability to represent the employees and promote their industrial interests and the desirability of adhering to the "general principle" of having not more than one union in the same field: MSB Officers' Association v Seamen's Union of Australia, New South Wales Branch (at 912). Although circumstances permitted exceptions, in general, the Industrial Commission considered that it was desirable that only one union should occupy a particular field. Thus, where a union sought to enter a new field which was already covered by another union, very good and cogent reasons were required to be shown in order to justify the Commission allowing the second union to represent the industrial interests of that group: Public Service Association of NSW v Federated Clerks' Union of Australia, NSW Branch (1954) 53 AR 244 at 252 - 253; FCU (NSW) v AWU (NSW) at 423. It should be noted that in Public Service Association (NSW) v Australian Workers Union (NSW) (1990) 36 IR 221 (the 'Toll Collectors Case'), Bauer J did not determine the matter solely upon the basis of the absence of constitutional coverage by the AWU, but found that, as a matter of principle, a strong case would need to be made out before any entry into a field already covered by a union would be allowed (at 225). 360 The introduction of the 1991 Act brought about changes in the statutory provisions governing demarcation questions. The general power remained substantially the same as the 1940 Act, giving the Commission the power to determine demarcation interests, however, an additional section (s221(2)) added an important new criteria relating to the exercise of the power. 361 Sections 220 and 221 of the 1991 Act read as follows: 220. Demarcation questions (1) The Commission may, by its order, determine any question as to the demarcation of the industrial interests of industrial organisations of employees. (2) Application for an order under this section may be made by the Minister, an industrial organisation or an employer. 221. Demarcation - orders of the Commission relating to coverage of industrial organisations of employees (1) The orders that the Commission may make when determining any such question 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) The power to make any such order is to be used for the purposes of: (a) rationalising coverage by industrial organisations of employees for employees of enterprise employers; and (b) allowing representation of employees by a single industrial organisation of employees at new places of employment or places where the nature of work has been, or is intended to be, substantially changed, and may be used for such other purposes as the Commission considers appropriate. (3) In considering whether to make such an order, the Commission: (a) must have regard to any agreement of which the Commission becomes aware and to any order of the Commission or the Industrial Court 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; and (b) may seek advice on any relevant matter from any State peak council. (4) When the Commission makes such an order, the Commission may by that order, after giving each industrial organisation concerned an opportunity to be heard, make such alterations to the rules of the organisation as are, in the Commission's opinion, necessary to give effect to the order. (5) An alteration of the rules of an industrial organisation under this section takes effect on the day on which the order is made or at a later time specified by the Commission. (6) Nothing in this section prevents the Commission from imposing conditions on such an order. 362 The new provisions received extensive attention by a Full Commission of the then Industrial Relations Commission in Professional Officers' Association of NSW v NSW Teachers' Federation and Others (1994) 54 IR 85 (the 'POA Case'). The matter was an appeal from a decision of Redman CC in which the Conciliation Commissioner made a demarcation order in favour of the NSW Teachers Federation ("the Federation") contrary to the interests of the Professional Officers' Association of New South Wales ("POA") and the Public Service Association of NSW ("the PSA"). The Full Bench held, confirming observations made in an interlocutory appeal heard earlier in the proceedings (Public Service Association v NSW Teachers Federation (1992) 50 IR 398 at 402) that the opening words of s221(2), "is to be used for the purposes of", were imperative and required the Commission to give consideration to the matters specified in the sub-section to be taken into account when determining a question arising under s221(1) (on appeal at 54 IR 85 at 97). 363 In considering what the term 'rationalisation' meant, the Full Bench held that the key meaning was "re-organisation". That expression was held to carry with it connotations of promoting efficiency and economy, rather than a reduction in the number of unions per se (at 102). The Full Commission considered that the word "rationalising" may even compliment the addition of an organisation in a particular case, "if that achieves some greater efficiency". It was observed: The emphasis placed in the Second Reading Speech upon the views of members of organisations and the position of small organisations, incline us to this as a possibility, although it does not, of course, require decision in this matter. The emphasis, it appears to us, is what is appropriate at the particular enterprise or enterprises for the employees concerned - an emphasis consistent with the approach adopted in other parts of the Act and one absent from the predecessor to the Act - the Industrial Arbitration Act 1940. 364 The Commissioner found that both the Federation and POA/PSA had the legal capacity and willingness to serve the interests of affected employees. The Commissioner considered a "strong case" had to be made out in order to displace the Federation's "heritage of interest" in the coverage of staff. He relied in this respect upon the decision of Bauer J in the Toll Collectors Case. Their Honours considered that the Commissioner's approach was erroneous under the 1991 Act demarcation provisions and held (at 104 - 105): In our view, the Toll Collectors' case illustrated the very different nature of the provisions contained in Pt4 of Ch3 of the Act, and more particularly s221(2), compared to the jurisdiction exercised by the Commission's predecessor pursuant to s36 of the former 1940 Act. Questions of 'rationalising' coverage were not of fundamental importance to demarcation questions determined pursuant to that earlier provision. As the Toll Collectors' case illustrated, in applica-tions under the former s36, union eligibility rules and questions of historical coverage were considerations which were given a promi-nence not explicitly available under the present Act; the focus now under s221(2) is on the requirements of particular enterprises and workplaces and the creation of representation rights on a rational-ised basis according to par(a) and a move towards single organisation coverage under par(b) of the subsection. The difference is, in our view, one of the emphasis which the Act now gives to what is appropriate for the present and future circumstances and needs of a particular enterprise or enterprises, without allowing too decisive a consideration as did the former 1940 Act, for the past coverage of employees - that is, the 'heritage of interest' relied on so much, wrongly in our view, by the Commissioner here. 365 The Full Commission considered that the historical coverage of the Federation was relevant to the consideration of the demarcation application but the Commissioner erred in elevating that consideration to a level where it was conclusive as to how coverage should be rationalised. The relevant principles under the statutory scheme under the 1991 Act were described as follows: The submission by the Federation that the pre-existing principle of commonsense that change carried with it a heavier onus when loss of representation rights might flow to an unsuccessful organisation demonstrates that point. That approach focuses on the interests of the organisation as a separate legal entity and a concern with what it might lose, rather than on the interests of the employees in the context of the needs of the enterprises as now required under the Act. In our view, there is a significant change of emphasis inherent in s221 when compared to its statutory predecessor. 366 In FIA v TWU (No. 2) (at 104 - 105), the Full Bench, in following the decision in the POA Case, referred to the principles which were to be drawn from that decision as follows: Rationalisation as a process seems necessarily to import by its very name recourse to all the available facts. Whatever be the extent of the changes which the new demarcation section has wrought, the structure of the Industrial Relations Act remains based on the existence of registered industrial organisations. It is ineluctable, in our opinion, that both the scheme of the Act and the emphasis which is therein placed on industrial organisations, make a determination of the industry within which the work fell and an investigation of the appropriate coverage of industrial organisations of employees (or employers) essential for the purpose of the coverage in that industry. From that determination normally would follow the categorisation of the work in the terms of union coverage. The change wrought by s221 to the historical demarcation investigations made under the repealed Industrial Arbitration Act, was not found in the initial approach to the investigation of the issues but in the weight which is to be placed on the finding once made and, also, in the range of orders which might then be made. … The judgment in the POA Case bears some more detailed consideration than that accorded it in argument on this appeal. The case is not authority for the proposition that the question of coverage is no longer either relevant or important. Indeed, when the question of the coverage of the union of the particular employees came to be considered, the Full Commission expressed the view that it was not necessary to come to a final decision on the question because: ... questions of existing constitutional coverage do not have the degree of importance which they had under the former 1940 Act. Further, and in any event, the historical position and de facto coverage are but matters amongst a variety which must be considered . (emphasis added) It is then appropriate to look at the matters which the Full Commission in the POA Case considered as bearing on the decision which it made to demark the work of the particular employees. The judgment referred to membership, union activity, union neglect, eligibility for membership, and the work performed, and said "the features of the work are all factors which must be taken into account" (p 109). The judgment then said that: There is an obvious attraction in a single organisation position being achieved in an enterprise; so much is recognised in the Act as we have said earlier. The judgment proceeded: The real question here is whether such representation should be by the Federation or by the POA/PSA. In answering that question, reference was made to the preference expressed by the employer which had firmly supported the POA/PSA application, the two enterprise agreements which had been negotiated by the POA/PSA relevant to the members, and to the fact that there had been substantial changes to the work being performed since the time that the Federation had the substantial membership in the area. 367 The Full Commission then indicated that it would be necessary to undertake an initial consideration of the industry into which work fell so as to avoid the possibility of introducing unions into areas of the industry in which they had not previously operated and thus raising "the risk of inappropriately increasing the number of unions within an industrial area" (at 105). 368 The Full Bench decision in HREA v PSA, appears to be the last Full Bench decision dealing with the 1991 Act provisions. The matter was an appeal from the decision of Schmidt J in Public Service Association of New South Wales v Health and Research Employees Association of New South Wales (1996) 92 IR 122, in which her Honour determined a demarcation dispute substantially in favour of the PSA. 369 The proceedings before Schmidt J arose out of competing applications for demarcation orders by the PSA and the Health and Research Employees Association of New South Wales ("HREA") in circumstances where there had occurred a significant movement by psychologists, members of the PSA, to have their industrial interests represented by the HREA. 370 After a detailed discussion of the evidence and submissions of the parties, her Honour's reasoning commenced with a recognition that "union membership at its most fundamental, is a question to be determined by the individual employees" but that that factor whilst important, is not decisive of the demarcation issue. As to rationalising coverage, her Honour pointed out that neither application before her would lead to a reduction of the total number of union represented employees (although the grant of the HREA application would increase the number of organisations at the workplace). It was stated that ss220 and 221 emphasised consideration of what was appropriate and rational for employers of affected enterprises. While matters of history are another relevant consideration "s221 emphasises the interests of employees and the needs of enterprises, rather than the interests of the competing organisations". 371 The real issue was identified by her Honour as "which of the two competing applications should be favoured having regard to what the interests of all of the employees concerned demands in the light of all of the evidence" (at 156). 372 Having had regard to the constitutional coverage of the unions, the industrial representation of the workforce over the years and the matters which had given rise to concern on behalf of some of its members, the conduct of the HREA in its campaign to win membership and the desire of the employer to only have a single union relevant to the particular group of employees, her Honour concluded that the PSA application should be preferred. 373 Her Honour's conclusions were expressed in the following terms (at 157): Having regard to the evidence I have concluded that so far as the psychologists are concerned, the HREA's application must be rejected. The factors which support representation of psychologists by the PSA outweigh those matters which favour their representation by the HREA. These include the PSA's overall representation of the psychologists in the past, the position of psychologists as members of the allied health professionals group in those enterprises where such groups operate and the conduct of the HREA in its recruitment campaign, which I have concluded places it in a most unfavourable light as the proposed representative of psychologists, given the requirements and objects of the system established by the Act and the role which registered organisations have to play in that system. 374 On appeal, the Full Bench upheld her Honour's approach, finding that her Honour's decision displayed the necessary process required by the authorities; that is, attending to the interests of the employees in the context of the needs of the enterprise conducted by the employer: HREA v PSA (at 167). The process of identifying and weighing up the various factors was described as a "classic illustration of the discretionary process in operation" (at 167). That process was consistent with the statutory requirements of the 1991 Act which their Honours summarised as follows (at 174): We think it to be undoubted from the statutory provisions in the 1991 Act that the Commission's power to make a demarcation order is discretionary; that is so in terms of both whether an order should be made (see the word "may" in s 220(1)) and, if so, the nature and extent of such order (see the opening words to s 221(1)). As was stated by the Full Commission in Federated Ironworkers' Association v. Transport Workers' Union (at 105), it is a "discretion of the most fundamental kind". However, the discretion is not at large but is regulated by the mandatory requirements of s 221(2) as to the specific purposes for which the power to make a demarcation order is to be used. So much was recognised by Schmidt J. in the references made, as we have earlier said, to the relevant passages of authority in Public Service Association v. Teachers' Federation (at 402) and Professional Officers' Association v. Teachers' Federation (at 98). 375 The introduction of the 1996 Act once again heralded changes to the provisions governing applications for demarcation orders. The relevant sections, ss294 and 295, now to be found in Part 6 of Chapter 5 of the Act, are 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. 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. 376 Section 221(2) was removed by the 1996 Act. Thus, one stark distinction between the provisions in the 1991 Act and those to be found in the 1996 Act was the absence of a provision directing the Commission to exercise the power to make a demarcation order for the purposes of "rationalising" the coverage of registered organisations. 377 It appears that the judgment of NUW v TWU was the first matter decided under the 1996 Act provisions. His Honour had before him an application by both the National Union of Workers ("NUW") and the Transport Workers Union ("TWU") for exclusive rights to represent the industrial interests of employees of Toll Transport Pty Ltd, with some exceptions, who were engaged in transport and distribution work at various warehouse facilities. His Honour identified the approach to be taken and discussed the legislative changes occurring with the advent of the 1996 Act as follows (at 365): It will be apparent from the relevant sections of the Act that the power afforded the Commission in the determination of demarcation questions is to be exercised in the context of a very wide and general discretion; many factors will arise for consideration. A Full Commission ( Bauer and Cullen JJ., and Connor C.C.) of the former Commission in Federated Ironworkers' Association of Australia, New South Wales Division v. Transport Workers' Union of Australia, New South Wales Branch ((1995) 62 IR 90 at p.105) described such a task as engaging the Commission "in an exercise of discretion of the most fundamental kind" and the present case, I apprehend, is but an example of that. However, it seems to me the discretion cannot be beyond reasonable limits and is to be exercised in accordance with established and known industrial principles as laid down in the authorities. It is true also, as the parties acknowledged, that the varying legislative prescriptions over the years have attended to demarcation issues in terms which may be thought to have required different approaches. For instance, s.36 of the former Industrial Arbitration Act 1940 (the 1940 Act) enabled the then Industrial Commission to "determine any question as to the demarcation of the industrial interests of trade unions and industrial unions" without any explicit fetters; s.221(2) of the repealed Industrial Relations Act 1991 (1991 Act) specified the purposes for which a demarcation order may be made as being for "rationalising coverage by industrial organisations of employees for employees of enterprise employers", for "allowing representation of employees by a single industrial organisation of employees at new places of employment or places where the nature of work has been, or is intended to be, substantially changed" and "for such other purposes as the Commission considers appropriate". 378 After considering the Full Bench decision in the POA Case his Honour noted that senior counsel for the NUW had contended the 1996 Act represented a clear departure from the situation applying under the 1991 Act, and its focus on the concept of rationalisation. The 1996 Act required the more general approach of the 1940 Act. His Honour noted that, whilst each party sought to place a different emphasis upon the various provisions of s3 of the 1996 Act, each accepted that in exercising the powers under s295 the Commission should act in a manner consistent with the objects set out in s3 of the Act. 379 His Honour continued (at 368): For myself, I do not consider the exercise of discretion under s.295 as being directed by one object more than another but rather all of the relevant objects in s.3 should be viewed collectively to result in what the object in par. (a) says, namely, "to provide a framework for the conduct of industrial relations that is fair and just". So viewed, it seems to me, and as the Full Commission recognised in Professional Officers' Association v. NSW Teachers' Federation (54 I.R. at p.105), the difference is "one of emphasis". Perhaps the real and operative position in demarcation decision-making was put appropriately by the Full Commission in Federated Ironworkers' Association v. Transport Workers' Union (62 I.R. at pp.103-104), albeit a decision under the 1991 Act, thus: Rationalisation as a process seems necessarily to import by its very name recourse to all the available facts. Whatever be the extent of the changes which the new demarcation section has wrought, the structure of the Industrial Relations Act remains based on the existence of registered industrial organisations. It is ineluctable, in our opinion, that both the scheme of the Act and the emphasis which is therein placed on industrial organisations, make a determination of the industry within which the work fell and an investigation of the appropriate coverage of industrial organisations of employees (or employers) essential for the purpose of rationalising the coverage in that industry. From that determination normally would follow the categorisation of the work in the terms of union coverage. The change wrought by s221 to the historical demarcation investigations made under the repealed Industrial Arbitration Act , was not found in the initial approach to the investigation of the issues but in the weight which is to be placed on the finding once made and, also, in the range of orders which might then be made. 380 His Honour then considered various aspects of the exercise of discretion as follows: Given that the scope of "rationalisation", I think former decisions of the Commission under both the 1940 Act and the 1991 Act have present relevance in considering the various factors involved, with the ultimate weight to be given to each factor being within the Commission's general discretion to be exercised in accordance with all the circumstances and having in mind the objects of the statute, particularly that contained in par (a) as to what is "fair and just" in an objective sense. Also, it seems to me, the object of promoting efficiency and productivity at the level of the State economy necessarily requires co-operative reform at an enterprise or workplace level. In that respect, I have in mind the development of industrial principle in recent years by reference to the emergent and continuing need for individual industries and workplaces to implement structural efficiency measures. The importance of such measures was dealt with by me in determining a demarcation dispute in Sydney Coal Lumpers Union v Federated Engine Drivers' and Firemen's Association of Australasia (NSW) (1991) 38 IR 265, decided pursuant to the 1940 Act, where a demarcation order for exclusive representation rights was sought on the grounds that the registered rules of the applicant union provided coverage of the work and employees had traditionally been members of that union for in excess of 60 years. In dismissing the application, I observed (at 274 - 275): "Quite apart from the respective merits of particular aspects of the manning and employment arrangements proposed at the Board, it is apparent from the report that steps are in train for the restructuring of the BCL in the context of structural efficiency measures. In the view I take, the Commission should be slow to intervene by order so as to impose a condition affecting the working arrangements in the important area of industrial representation which may well frustrate the achievement of the multi-skilled and integrated workforce. The classic rule against a multiplicity of unions, so far as is possible, would be offended also if a condition of that nature were to be imposed. Such a step, in my view, would be fundamentally inconsistent as well with the central thrust of the National Wage Case August 1989 (1989) 30 IR 81, as adopted in the State Wage Case August 1989 (1989) 30 IR 107, namely structural efficiency. Members of the union employed as coal lumpers have performed the subject work for very many years. The union itself is a long established union in this state, and, in a very real sense, one can appreciate endeavours by it to retain industrial coverage over particular work. However, one must appreciate also that change is an inevitable part of the present economic and working environment, and, where factors exist requiring restructuring, that that may well lead inexorably to changes in industrial representation. Indeed, this is well illustrated by the widespread moves in the industrial arena towards union amalgamations and mergers …" Consistent with the authorities, and as I view the way in which discretion ought to be exercised in weighing all the relevant factors, I can but repeat as appropriate the general approach adopted by me in Federated Ironworkers' Association v Transport Workers' Union (1994) 78 IR 123 at 155 as follows: "Therefore, it seems to me, the proper approach in resolving this demarcation dispute requires an objective consideration of the facts with the aim of rationalising coverage by industrial organisations at the Facility in terms of what is appropriate in the circumstances to meet the interests of the employees in the context of the needs of the enterprise so as to promote efficiency and economy, including by a move to single organisation coverage. The starting point for that purpose is, as appropriate in this case, the true categorisation of the industry conducted at the Facility which, necessarily, will involve consideration of the work performed, award coverage and eligibility for membership of the employees concerned of the two competing organisations. The resultant findings may then be applied to the interests of the employees in the context of the needs of the enterprise as to the appropriate union, the FIA or TWU, to have industrial representation rights. The industry in which an employer is engaged must, I think, be a most relevant factor in a demarcation dispute as it represents the area in which an enterprise functions; commonality and community of interest, for both employers and employees, by being in a particular industry and subject to its features is unsurprising. Here, as the matter was argued, the difference is between the steel industry and the transport industry." Admittedly, that decision was given under the 1991 Act and was followed by me in BHP Refractories Pty Ltd v AWU-FIME Amalgamated Union, New South Wales (1996) 69 IR 41 at 52, another decision under the 1991 Act, after it was affirmed by the Full Commission on appeal (at 103 - 105) in the passage I have cited earlier. I propose in the instant case to again follow that general approach, recognising as did the Full Commission at (103) that "rationalisation" as a process seems necessarily to import by its very name recourse to all available facts", and, so, I turn to the starting point, that is, the true categorisation of the industry conducted by Toll at the Moorebank Facility. 381 After a review of the facts, Hungerford J then considered the constitutional coverage of the competing organisations, noting that where both organisations have such coverage it will be appropriate to exercise a discretion in all the circumstances. His Honour then considered the essential nature of the industry and turned to consider the NUW's claim which depended very much on the interests of the organisation itself in terms of historical/award coverage, constitutional coverage and assessed industry wide considerations as all favouring the NUW. 382 As to the these contentions, his Honour found: However, it is worth repeating that, in my view, the contemporary functioning of industry requires emphasis to a range of wider issues in resolving demarcation disputes. Prime amongst those issues is the efficient and productive organisation of a workplace, free from impediments and promoting work practices such as flexibility and multi-skilling, within the setting of the relevant industry group so as to benefit from commonality and community of interest for both employers and employees in a stable industrial relationship; and that is desirable of achievement regardless of longstanding constitutional coverage by a particular organisation: see Sydney Coal Lumpers at (274 - 275). In a real sense, it seems to me, attention in the resolution of a demarcation dispute should, as the Full Commission said in Professional Officers Association v NSW Teachers' Federation (at 105), focus now "on the interests of the employees in the context of the needs of the enterprises"; in that way, I am satisfied, and as I observed in Federated Ironworkers' Association v Transport Workers' Union at (155), one is able "to promote efficiency and economy, including by a move towards single organisation coverage". 383 His Honour then considered, in the exercise of his discretion, award coverage, the interests of employees in terms of that preference for one organisation over another, the interests of the employer and the needs of an enterprise and the industrial conduct of the NUW. 384 As was observed by Hungerford J in NUW v TWU, ss294 and 295 of the 1996 Act confer a very wide and general discretion upon the Commission to determine demarcation questions. However, that discretion is not at large. The Commission should have regard to the whole of the statutory scheme in which the demarcation provisions are found and must take into account the objects of the Act (see s146(2)(a)). 385 In the context of these proceedings the relevant objects found in s3 of the 1996 Act are as follows: (a) to provide a framework for the conduct of industrial relations that is fair and just, (b) to promote efficiency and productivity in the economy of the State, (c) to promote participation in industrial relations by employees and employers at an enterprise or workplace level, (d) to encourage participation in industrial relations by representative bodies of employees and employers and to encourage the responsible management and democratic control of those bodies, (e) to facilitate appropriate regulation of employment through awards, enterprise agreements and other industrial instruments, … (h) to encourage and facilitate co-operative workplace reform and equitable, innovative and productive workplace relations. 386 It is also appropriate, as was stated by Hungerford, J in NUW v TWU, that the Commission act in accordance with established and known industrial principles as laid down in authority, although only in so far as those principles there stated are applicable under the 1996 Act. The Commission should be careful not to import principles which derive from a particular set of statutory criteria which are not applicable to the determination of demarcation questions under the 1996 Act. 387 This proposition may be illustrated in two ways. Firstly, there was no counterpart to s295(2) in the 1940 Act. This distinction reduces, in my view, the weight which may be attached to the question of the constitutional coverage in determining demarcation questions under the 1996 Act when compared to significance attached to that factor under the 1940 Act. Secondly, the 1996 Act confers a broad discretion upon the Commission in resolving demarcation questions akin to that found under the 1940 Act without requiring, on the face of the legislation, the application of the criteria found in s221(2) of the 1991 Act. This has, in my view, significance for the exercise of the Commission's discretion, particularly when assessing, as a factor in determining demarcation questions, the historical coverage of an industrial organisation. It should also be noted, when examining the principles established under the 1991 Act, that the objects of that Act were different to those found under the 1996 Act. In part, that distinction reflected some more fundamental differences in those statutory regimes. That distinction does not seem to have been addressed by the parties in these proceedings and does not feature in the discussion of demarcation questions in the authorities. It is sufficient for present purposes that I demonstrate some relevant differences in the objects as follows: 1. The closest counterparts to objects in s3(c) and s3(d) (which are earlier set out) are the objects in s3(l) and s3(n) of the 1991 Act. Sections 3(l) and s3(n) of the 1991 Act are in the following terms: (l) to recognise and facilitate the organisation of representative bodies of employers and employees, and encourage their democratic control and efficient management (n) to ensure that employees are free to choose whether or not to join unions by prohibiting preference in employment for union members and by preventing victimisation of persons on the ground that they are or are not union members. 2. The objects in s3(a) and (b) of the 1996 Act may be contrasted to s3(a), (b) and (f) of the 1991 Act, which are set out below: (a) to promote industrial harmony and co-operation between employers and employees and other parties involved in industrial relations in New South Wales; (b) to provide a framework for the orderly conduct of industrial relations in the context of the technological and economic environment, for the purpose of improving efficiency, productivity and equity, having regard to the interests of the employers, employees and the community; (f) to ensure that, in dealing with any industrial matter, and in the setting of wages and conditions of employment, proper regard is given to the interests (including interests relating to efficiency, productivity and equity) of the parties immediately concerned and to the interests (including economic interests) of the community as a whole; 388 The object of s3(a) of the 1996 Act was considered in NUW v TWU to be a significant matter in the exercise of the Commission's discretion. I agree. It is a significant addition to the objects in the 1991 Act. Further, I consider the replacement of s3(l) of the 1991 Act with the object in s3(d) of the 1996 Act is also significant. 389 In the light of this discussion, I shall now turn to consider the factors relevant in this matter and the weight which should be attached to them in light of the statutory scheme and relevant principles. Constitutional Coverage 390 The provisions of s295(1) identify the orders (although not exhaustively) the Commission may make in relation to a demarcation question. As earlier noted, that provision has no counterpart under the 1940 Act and is the same as the counterpart provision found in the 1991 Act. 391 Section 295(1)(b) makes plain that the Commission may resolve a demarcation question by making an order in favour of an industrial organisation of employees that does not have the constitutional coverage for the particular class or group of employees who are the subject of the demarcation question. This conclusion is reinforced by the provisions of s295(2) which permits, in the circumstances there described, and after the making of a demarcation order, the Commission to vary the rules of an industrial organisation including expanding the scope of the constitutional rules of an organisation favoured by a demarcation order. 392 The impact of order-making powers of the Commission of the kind found in s295(1) has been discussed in a number of authorities; both of the predecessor of this Commission under the 1991 Act and courts and tribunals considering relevantly similar provisions under federal legislation. In the POA Case, the Full Commission considered a finding at first instance that the Federation had coverage of the programme staff. The Commission indicated that it was not convinced that this conclusion was correct, but found it unnecessary to make a final ruling on the question having regard to the following observations: As we have said, having regard to the nature of the power conferred upon the Commission by s221 of the Act, questions of existing constitutional coverage do not have the degree of importance which they had under the former 1940 Act. Further, and in any event, the historical position and de facto coverage are but matters amongst a variety which must be considered. Therefore, but whilst doubting the position, we find it unnecessary to make a final ruling on the Federation's constitutional coverage of programme staff in the centres. (at 106) 393 It must be observed that this question was also determined in the light of the Commission's other conclusions as to the principles to be applied under the demarcation provisions of the 1991 Act such as s212(2). I have earlier set out the discussion of this passage in FIA v TWU (No. 2) in which the Full Bench of the Commission, again in relation to the 1991 Act, stated that the POA Case was not authority for the proposition that the question of coverage was no longer either relevant or important. The Full Bench in FIA v TWU (No. 2) expressed the view that it was essential to have regard to the coverage of industrial organisations of employees for the purpose of rationalising coverage in an industry. However, it should be noted that the Full Bench did not directly consider the question of the then Commission's order-making powers under s221(1) of the 1991 Act. 394 Noting that there were some differences in the statutory provisions relating to resolution of demarcation disputes between the 1996 Act and the Industrial Relations Act 1988 (Cth), the powers of the Australian Industrial Relations Commission to make demarcation orders under s118 of the then Industrial Relations Act 1988 (prior to amendments bringing in s118(A) of that Act) were, allowing for grammatical distinctions (which are irrelevant for present purposes), the same as those found in s295(1). In those circumstances decisions by federal courts and tribunals as to the implications of those provisions should be treated as persuasive. Indeed, on one view, the provisions of s295(1) should be regarded as in pari materia with the provisions of that earlier federal legislation (it should be noted that the provisions of the later s118(A)(1) were identical to s295(1) of the 1996 Act in terms of the orders that could be made). Bearing in mind these considerations, there are a number of federal decisions which are relevant. 395 In National Union of Store Workers, Packers, Rubber and Allied Workers v Waterside Workers Federation of Australia (1990) 44 IR 79 at 83 - 84, the Full Bench of the Federal Court of Australia, in this respect, stated: However, the problem of the other 13 depots is a matter of only secondary importance in our reasoning. The more significant factor is that, as we read s118, it is not essential for the Commission to determine whether, under the present rules of the WWF, employees at container depots are eligible to join that organisation. Section 118(3)(b) permits the Commission to make "an order that an 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 shall have this right". In marked contrast to the position under pars (a) and (c) of s118(3), there is no reference to existing eligibility. Of course, an organisation can only represent the industrial interests under the Act of a class or group of employees if the members of that class or group are able to join the organisation. But we do not think that this means that they must presently be eligible. Subsections (6), (7) and (8) of s118envisage the need for rule changes, consequent upon an order under s118(3). Section 204(8) contemplates that a rule change pursuant to s118(7) may take the form of, or include, a change in the eligibility rules of the organisation. As it seems to us, s118(3)(b) represents a major break with the past. Under s142(a) of the Conciliation and Arbitration Act the Conciliation and Arbitration Commission could make an order providing that an organisation of employees should have the right to represent "a class or group of employees who are eligible for membership of the organisation". As Deane and Dawson JJ said in R v Coldham; Ex parte Australian Workers' Union (1983) 153 CLR 415 at 427; 6 IR 61 at 68 eligibility was a "jurisdictional fact" for an order under s142A. No doubt it was for that reason that it was generally thought useful, when this type of problem arose in the past, for this court to proceed to determine eligibility, notwithstanding pending proceedings in the Conciliation and Arbitration Commission: see Federated Municipal and Shire Council Employees' Union of Australia v Municipal Officers' Association of Australia (Full Court, 30 September 1983, not reported) and Food Preservers' Union of Australia v The Manufacturing Grocers Employees Federation of Australia (Smithers J, 3 August 1984, not reported. But once the situation is reached that present eligibility is not an essential prerequisite to an order giving an organisation the right to represent a particular class or group of workers, the position changes. We agree that, although s118 does not state any criteria for determining whether an order should be made under that section, the Commission may regard present eligibility as a relevant factor. In some cases it may be determinative. In other cases, for example, where the determination of present eligibility involves difficulty and the possibility of anomalous results, the Commission might think it more fruitful to concentrate attention on other relevant factors. In expressing the view that, in the present case, it is not a significantly useful exercise for us to determine the matter of the eligibility at these three depots, we do not mean to indicate any view upon the question whether there ought to be a s118 order or, if so, what criteria should be used to determine whether the WWF should be given the right to represent the workers at container depots and terminals. These are matter for the Commission. If the Commission thinks that the matter of present eligibility is of sufficient importance to make it necessary to resolve that question, in respect of some or all of the depots or terminals, it is well placed to make its own inquiry and to find the facts. If, on the other hand, the Commission feels that present eligibility is a matter of little or no consequence, it might decide that this inquiry is unnecessary. We say no more than that, having regard to the form of s118(3)(b), we are unpersuaded that it is a useful expenditure of the time or resources of the parties or the Court to pursue the matter of eligibility in these three depots at this stage. 396 To similar effect, a Full Bench of the Australian Industrial Relations Commission in Federated Ironworkers Association & ors v Comalco Aluminium Limited & ors (1989) 30 IR 241 at 258, found that it had jurisdiction to determine a demarcation question in favour of the FIA notwithstanding that it did not have constitutional coverage of employees, the subject of the demarcation dispute. Indeed, the Commission found in favour of the FIA and made orders granting it the right to represent the industrial interests of that group. 397 It follows from an examination of the provisions of s295(1) and the aforementioned authorities that the constitutional coverage of an industrial organisation of employees is not an essential pre-requisite to, or a factor which may be determinative of a demarcation question or the making of demarcation orders pursuant to s294 and s295 of the 1996 Act. The matter may be more or less significant in proceedings depending on the facts and circumstances of a particular case. That is a matter for the exercise of the discretion of the Commission. 398 In this respect, I concur with the sentiments expressed by a Full Bench of the AIRC in Metal Trades Industry Association of Australia v Electrical Trades Union of Australia and Ors (1992) 42 IR 158 at 160 - 161: We are aware that ETU has, comparatively recently, sought consent to alteration of its eligibility rules but that the application did not ultimately proceed to decision. Section 118A of the IR Act provides a mechanism by which the extent of coverage in a contentious area can be established by clear words and can prevent what otherwise may be time consuming and costly search for an authoritative determination of the true meaning of the words which may have outlived there usefulness and where that determination might be, in a sense, arbitrary (see observations of Dixon J in R v Central Reference Board; Ex parte Thiess Repairs Pty Ltd (1948) 77 CLR 123 at 140. That section permits a rational debate about the appropriateness of coverage in a particular area which would produce a considered decision paying regard to contemporary industrial relations considerations rather than an outcome determined by the meaning of words and expressions adopted by ETU at a point closer in time to the first flickerings of Thomas Edison's light bulb than now. 399 Turning to the issues raised in this matter, there is no contest that the eligibility for membership rules of the AWU cover the entirety of the disputed field of work in the respective applications. However, the AWU and Multi-Fill contend that the AMWU does not have constitutional coverage for any of the work which is the subject of the applications. It is submitted, in the alternative, that the eligibility rules of the AMWU extend to only a small component of the contested areas. 400 It is unnecessary for me to determine the scope of the AMWU rules in these proceedings. I will approach the determination of this matter as if the AMWU has constitutional coverage for the entirety of the disputed areas of work in the respective demarcation applications. The matter is amenable to that approach as the issue of constitutional coverage would not, in any event, be determinative of the applications. I consider that, in balancing the remaining factors relevant to determining the demarcation question as defined by the applications, the AWU application should succeed and the application by the AMWU should fail, notwithstanding that both industrial organisations shall be treated as having the constitutional coverage for the disputed areas. 401 Without determining the question, I observe, however, that it is arguable that some aspects of the work falling for consideration in the applications are not caught by the constitutional rules of the AMWU. 402 In making those observations I have had regard to the proper basis for interpreting the AMWU rules identified in FTWU v AMWU. I note, in particular, the construction given in that judgment to the words "and all workers engaged in the engineering, ship building and kindred trades" and to the expression "trades and callings" (following the preamble words "employed or usually employed in or in connection with") in the rules of the Federal organisation, the counterpart of which are rules 2A.1.1 and 2A.1.6 of the rules of the AMWU under the 1996 Act. I have also had regard to the principles for determining the construction of eligibility rules of organisations as identified in that decision (at 265 - 266) and as discussed in the article by J.W. Shaw in Interpreting Trade Union Constitutional Rules (1988) 62 ALJ 690. 403 FTWU v AMWU concerned a group of employees of WD and HD Wills (Australia) Limited engaged in various classifications within the area of the relevant award described as "engineering services". The rules were not read as being confined to persons engaged in the engineering industry and extended to a class consisting of employees in or in connection with an industry of employees without regard to the industry and undertakings of their employer. Thus, the court found that persons engaged in assisting tradespersons who performed their duties for an employer engaged in the preparation and manufacture of tobacco would fall within the rules of the AMWU. On that basis, it may be arguable that 'line setters' fall within the AMWU rule. On a liberal consideration of the AMWU rules it may also be arguable that persons engaged in the 'vinegar' line operations of Multi-Fill (a relatively minor part of the overall operations) fall within 2E of the rules of the AMWU under the 1996 Act. 404 Some doubt arises, however, as to whether the rules of the AMWU extend to process or production line workers. As I have mentioned, it is unnecessary for me to determine that question in this matter. 405 This matter proceeds then upon the basis that both organisations have eligibility rules which permit them to enrol the entirety of the contested workforce. It remains then to consider other matters going to the exercise of the Commission's discretion pursuant to ss294 and 295 of the 1996 Act. 406 Furthermore, I should note that both industrial organisations contended that it was unnecessary for the Commission to consider in this matter the industry in which Multi-Fill operated. Having regard to the absence of evidence on that question, I shall adhere to the common ground reached by the parties. Historical Coverage 407 I shall firstly discuss the issue of the historical or de facto coverage by an industrial organisation of a group of employees which is described in the POA Case as the "heritage of interest". The question arises in these proceedings as to what weight should be attached to the traditional coverage by a trade union of a group of employees or an industry in determining a demarcation question. 408 The history of coverage in this context refers to patterns of membership and representation rather than merely the entitlement arising from constitutional competency. Such a consideration may include the length of time over which the relevant union has had membership coverage for and represented persons in a given industry or enterprise. Similarly this question may concern the history of conciliation committees and awards and the role of a union in their establishment and maintenance and the relevant union's effectiveness in representing and promoting the industrial interests of the members. 409 Putting aside for one moment the objective covering the achievement of an efficient and productive system or organisation of work, I consider that there is no warrant in literally introducing the criteria found in s221(2) of the 1991 Act in determining a demarcation question under the 1996 Act. 410 Whilst it is plain enough from the objects of the 1996 Act that a relevant consideration will be the interests of employees and the needs of enterprises, as those matters are referrable to the objects appearing in s3(b) and (c), it does not follow, in my view, that the 'shift in emphasis' brought about by s221(2) of the 1991 Act, as referred to by the Full Commission in the POA Case, should be simplistically applied under the 1996 Act as if the provisions of s221(2) had not been removed from the demarcation provisions of the 1996 Act. 411 This is not to say that a principle should be erected similar to the Toll Collector's Case, namely, that a strong case would need to be made before any entry into a field already covered by a union would be allowed. There is obviously a requirement of the balancing of all relevant considerations having regard to the statutory scheme and the objects of the Act. However, this conclusion does entail that the interests of an industrial organisation as a legal entity registered under the Act will be a significant factor in determining a demarcation question where an organisation has traditionally and effectively represented the employees, the subject of the demarcation question and, particularly, where the coverage is challenged by an industrial organisation which hitherto has not represented the interests of those employees. 412 I consider that this approach is warranted for the following reasons: 1. The Full Bench in the POA Case found that s221(2) of the 1991 Act diminished the significance attached to the constitutional coverage of unions and 'historical coverage'. It did so by reference to shift in 'emphasis' resulting from the operation of that sub-section. Hence, the discretion of the Commission was fettered, in contrast with s36 of the 1940 Act, by the provisions of s221(2). This fetter no longer remains and the demarcation provisions have many similarities to the 1940 Act, save as to the question of the constitutional coverage of industrial organisations earlier discussed. In any event, the question of the history of union coverage and representation of its members remained a relevant factor under the 1991 Act (see FIA v TWU (No. 2) and PSA v HREA ). 2. The removal of s221(2) by the legislature must be attributed some significance, particularly in the light of the importance attached to that provision in the jurisprudence which developed under the 1991 Act. This is not a consideration which, in my view, points to a particular outcome such as a desire of the legislature to extinguish the earlier principles. It does, however, focus attention squarely on the scheme of the 1996 Act itself in order to ascertain the proper exercise of discretion and appropriate principles. 3. It is significant to note that this alteration in the statutory provisions governing demarcation proceedings is to be found in an Act which contains as a pervasive theme - the collective representation of industrial interests of employees by registered organisations. Such notions of collectivism are, by their nature, heavily dependent upon active and representative registered organisations of both employees and employers: see, for example, the Registration of Organisation provisions in Pt3 of Ch5; the award making provisions in Pt1 of Ch2 (see, in particular, s11); the enterprise agreement making provisions in Ch2, Pt2 (see, in particular, s31 and 36(5A)) and the dispute resolution provisions in Ch3, P1 (see, in particular, s130(1)). It follows that, in determining a demarcation question which, after all, delineates representation rights for industrial organisations, weight will be given to the interests of those organisations. 4. As earlier mentioned, it is also useful to consider the objects of the Act. Similarly to s3(l) of the 1991 Act, I consider that the objective in s3(d) involves the notion of recognising and facilitating the organisation of representative bodies of employees. This follows from the consideration of the expression "encourage participation in industrial relations" in that object. The words "industrial relations" in s3(d) have a wide meaning. They will, in my view, at least incorporate those aspects of industrial relations contemplated by and regulated under the Act. Thus, the expression "encourage participation" in industrial relations will involve the encouragement of participation by industrial organisations in industrial process under the Act. One important aspect of participation under the Act is the capacity to initiate industrial process by industrial organisations, a right which requires for its exercise recognition under the Act by means of registration. Similarly, it follows that the encouragement of "participation in industrial relations" would require the facilitation of organisations so as to establish viable organisations capable of effectively participating under the Act. 5. However, the objective in s3(d) of the 1996 Act travels further than contemplated by the concepts of recognition and facilitation. The concept of participation involves an industrial organisation registered under the Act, that is, the legal entity managed by its elected officers and management committees, functioning in accordance with the requirements of the Act and its objects and the principles governing industrial relations enunciated from time to time by the Commission, such as the wage fixing principles. Thus, the encouragement of participation entails the facilitation of the involvement of trade unions in these industrial processes under the Act in a manner consistent with the rights and obligations inherent in those processes. 6. Once this conclusion as to the scope of the object in s3(d) is reached, it follows, in my view, that consistently with that object significant weight would be placed on the interests of industrial organisations in the sense of their representational rights in demarcation proceedings. This is so because the Act contemplates, by object 3(d), that organisations will be encouraged to participate under the Act by representing the interests of their members. As I have noted, this will involve the recognition and facilitation of organisations (which may mean, in a contest between organisations, that the factor is important but neutral if both organisations have constitutional coverage and both may be treated as appropriate organisations to be developed in the interests of employees they may represent). However, the corollary of encouraging participation, particularly under the Act as I have described, is that an industrial organisation, which has fully and effectively represented its members in conformity with the objects of the Act and principles enunciated by the Commission, should be protected against unwarranted interference in those representative rights. This must surely be a component of the object concerning the encouragement of participation by registered organisations under the Act. 7. Further, under the 1996 Act, the attainment of workplace reform as referred to in NUW v TWU, is very much bound up with the adherence to the requirements of the Act and the principles developed by this Commission so that the efficiency and productivity of industry may be advanced in a manner which is fair and just. I agree, in this respect, with the observations of Hungerford J in NUW v TWU that the object in s3(a) of the 1996 Act is a matter of general significance in the objective under the Act and tends to condition the approach to the other objectives. 8. Rather than the interests of an organisation being subsidiary to the process of workplace reform, it may be a vital to its fulfilment. The integrity of industrial organisations and those that govern them is essential to the orderly conduct of industrial relations and the fulfilment of workplace reforms under the Act. This plainly brings into focus the industrial organisation itself and not only its members or employees at a particular workplace. This conclusion is reinforced when one considers that reform is often conducted, not only at a workplace or enterprise level, but on an industry or even state wide basis. Following this approach, it does not necessarily follow, as I will discuss below, that the fulfilment of the object in principle 3(d) of the 1996 Act in this case is incompatible with other objectives such as found in s3(b) and 3(h). 9. This conclusion fits comfortably, in my view, with the principles developed for the resolution of demarcation questions under the 1940 Act. It is appropriate to have regard to those principles given the similar discretions to be exercised by the Commission in dealing with demarcation questions under the 1996 Act. Putting aside the question of constitutional coverage, the historical coverage of industrial organisations was viewed as a significant factor where new unions entered a field previously covered adequately by another union. This derived from the operation of a 'general principle' against multiple union coverage in a given field and particularly against increasing the number of unions in an area the subject of existing coverage. Having regard to the authorities, these principles remain applicable under the 1996 Act. 413 It follows, in my view, that in the determination of demarcation questions under the 1996 Act, greater emphasis is given to the interests of industrial organisations and their historical coverage than was contemplated by the operation of s221(2) of the 1991 Act, although I would acknowledge that in FIA v TWU (No. 2) the Full Bench recognised the "structure of the [then] Industrial Relations Act remain[ed] based on the existence of registered organisations", although that consideration only featured in relation to 'initial' questions raised in demarcation matters. 414 Thus, the historical coverage of an industrial organisation and the interests of that organisation as a representative body is a relevant factor in determining demarcation questions. It is not, in my view, determinative of the question and needs to be balanced against other relevant factors. Indeed, that factor needs to be assessed as to its own weight on the facts and circumstances of a particular case. 415 In this matter, I consider that the historical coverage by the AWU is a factor in favour of its application. So much was conceded by the AMWU, but it sought to diminish the significance of that factor by reference to the length of that representation (commencing in 1995) and its effectiveness. However, I do not consider that the AMWU has succeeded in demonstrating that this factor should attract less weight because of the nature of the representation afforded by the AWU. I have reached this view for the following reasons: 1. Even if I were to accept that the AMWU's submission that the historical coverage of the AWU should be treated as commencing in 1995, I do not consider, in this matter, that fact significantly diminishes the strength of this factor for the AWU. Whilst the period of about 7 years is not necessarily a long one having regard to the authorities where the length of historical coverage considered is somewhat more substantial, the period of coverage is significant in this case because of the important industrial relations changes at Multi-Fill commencing in 1995. The AWU successfully participated in that process and did so with a high level of membership penetration until the recent involvement of the AMWU. In any event, as I have earlier found, I consider that it may be reasonably inferred that the historical coverage and industrial representation predates 1995. The precise history is unclear on the evidence but it can reasonably be found to extend for approximately 13 or more years. 2. I consider that the representation afforded by the AWU was effective. It negotiated an enterprise award consistently with the statutory emphasis under the 1991 Act for enterprise arrangements. That award was comprehensive and no complaint was made as to its terms. It provided for workplace reform, both in terms (for example, multi-skilling) and by a consultative process. The AWU actively participated in the consultative committee processes through its organiser and delegates. It consulted with its membership as to that process and industrial relations processes. It succeeded in making two further agreements providing for wage increases in a relatively short period of time. No complaint is made as to the quantum of those increases or that they were insufficient over the period of 1995 - 2002 until that claim was made by the AMWU in these proceedings. There was a contention by some AMWU witnesses that they would want an increase in wages for multi-skilling but this issue was not raised with the AWU or Multi-Fill which was simply met with opposition to that system. There had been a discussion of higher wages for new classification levels during the Consultative Committee process but these dissipated with the collapse of that proposal. Thereafter discussions focussed on a general wage rise accompanying the expansion of the existing skill base for process workers, i.e. multi-skilling. That position was on the table during those meetings and a resolution reached in those circumstances. That wage increase was approved by the meeting of union members on 7 December. A complaint was also made as to the failure to formalise the agreements under the Act which, for reasons earlier given in this decision, and having regard to the circumstances of the case, I do not accept as valid. Nor do I consider, as earlier discussed, that the 1999 agreement represented a detriment to employees. 3. The AWU maintained a high level of membership until the onset of the AMWU. I do not consider the criticism as to the election of the AWU's delegate is sustainable. It is not a matter that seems to have featured in the complaints of workers. There was brief cross-examination of Mr Jovanovski on the point, but that only confirmed that he had been elected as a delegate and that there had been little interest in revisiting the question. I infer that there was no desire expressed at the workplace to change the AWU delegate since his last election. It should also be remembered that the negotiations for the 1999 agreement were held in the Consultative Committee meetings. Mr Jovanovski was elected to fulfil that role. 4. There were contentions raised that the AWU was insufficiently responsive to its members' needs by failing to adequately take up the issue of multi-skilling and failing to provide representation in some particular areas which were identified as complaints by AMWU members in these proceedings. I have earlier discussed the question of multi-skilling and will return to it under the next heading concerning workplace reform and enterprise efficiency and productivity. It is sufficient to say at this point that it is a matter which I consider to be wholly in favour of the AWU and against the AMWU's application. As to the remainder of complaints, they will be discussed under the heading of 'employee preference'. However, I note at this point that I consider these complaints to be either wholly or very substantially without proper foundation. 416 Thus, I consider that the coverage of and representation by the AWU to be a factor in its favour. That organisation was effective in the establishment and maintenance of awards and agreements and representing and promoting the interests of its members. To that may be added the factor that it has constitutional coverage for the entirety of the contested aspects of the workforce (noting that neither union applied to interfere with the industrial representation of the NUW at Multi-Fill). 417 Finally, under this heading, I note that neither application would increase the number of unions in the workplace, but that the AMWU would change the existing union representational arrangements. No party has sought that the number of unions at Multi-Fill be increased and hence the matter falls to be determined on the basis that I should determine which one of the applicants should represent the interests of employees referred to in the application. Workplace Reform and Enterprise Efficiency and Productivity 418 I agree with Hungerford J in NUW v TWU that the contemporary functioning of industry requires emphasis be given to a range of wider issues in resolving demarcation disputes "and that prime among those issues is the efficient and productive organisation of a workplace free from impediments and promoting work practice such as flexibility and multi-skilling within the setting of the relevant industry groups so as to benefit from commonality and community of interests for both employers and employees in a stable industrial relationship". To this I would add that such considerations should be also assessed in conformity with the requirements of the objective in s3(a), that is, the introduction of change should occur within a framework of industrial relations that is fair and just. 419 I also agree with the observations made by his Honour in Sydney Coal Lumpers Union (which were proceedings under the 1940 Act) that the Commission would be slow to intervene so as to import a condition affecting the working arrangements in an important area of industrial representation which may well frustrate the achievement of a multi-skilled and integrated workforce. 420 These conclusions are warranted, in my view, by the objects in s3(b) and 3(h) and s146(2). They are not, however, conclusions which necessarily point to the disturbance of the longstanding coverage of a trade union, and I do not understand his Honour to suggest such a principle. The factors must be balanced in the particular circumstances of a case before the Commission. Further, there is no tension between these considerations in this matter as, in my view, the factors point in one direction. 421 Here the AWU has historically represented the interests of its members in a manner that is consistent with the goals for Multi-Fill for workplace reform and improvements in efficiency. It has done so through the making of the 1995 award and the participation in consultative and agreement making processes designed to effect workplace reform through multi-skilling. As earlier mentioned, that reform was sought by the employer for reasons of efficiency, productivity and product quality enhancement. In these circumstances, rather than the historical coverage needing to give ground in the light of the demands of the enterprise, it is a factor which is, in my view, commensurate with the attainment of those goals. 422 Consistent with the objective in s3(a), the change to work practices contemplated at Multi-Fill were obtained by fair bargaining and adequate recompense and in conjunction with appropriate protections - namely, ensuring that employees received adequate training and that their jobs were secure in the process. The reforms were introduced by consultative processes which were accessible to employees and based on a sense of co-operation consistent with the objects of s3(c) and (h). Similarly the AWU consulted with its members consistent with the principles of trade unionism and, so far as possible, obtained consent to reform through consultation and participation (see s3(c), (d) and (h)). 423 Like many reform processes, the changes required may be sometimes difficult and may be met with resistance, sometimes regardless of the merits of the proposal. Such is the nature of human endeavour and progress. In this case, I consider that Multi-Fill and the AWU went through the process of introducing the change in a slow and measured way with respect to a workplace reform which was modest and eminently sensible, namely multi-skilling. It was a measure very much within the scope of industrial reforms envisaged by this Commission in State Wage Case judgments. 424 The introduction of the AMWU, provided a vehicle for the protagonists against workplace reform to resist multi-skilling, notwithstanding prior agreements and union meetings called to consider the question. As things developed this influence has effectively prevented the change. The AMWU's apparent support of this position was given without regard to the need for reform earlier discussed or the history of the introduction of multi-skilling at this workplace, including the making of awards and agreements. This course may have received some justification if there were genuine grievances in relation to the processes of reform or they were introduced unfairly or unjustly. However, such a justification, as earlier discussed, is not available upon the evidence in these proceedings. Nor do I consider, for the reasons earlier given by me in the discussion of multi-skilling, that the late initiation by the AMWU to propose a training committee structure removes those concerns. 425 In the result, I consider that this factor is harmonious with my earlier deliberations in favour of the AWU with respect to its constitutional and historical coverage. When combined with the considerations in the aforementioned considerations, those factors weigh significantly in favour of the application made by the AWU. Industrial Conduct 426 It is clear that the conduct of a union may influence the exercise of discretion in making a demarcation order. The relevance of the conduct extends outwardly to matters such as structural efficiency and industrial harmony, thereby encompassing a wider context such as the interests of the employer (to which I shall later turn) and the needs of the enterprise. In NUW v TWU, Hungerford J saw the industrial conduct of the NUW as an issue of public interest, in so much as that there is an expectation for responsible conduct by a registered industrial organisation (at 411). 427 In that matter, his Honour had before him a history of industrial disputation and unrest which he saw as being caused by irresponsible conduct on behalf of the NUW and its members. The history of unrest on the site was of such a severe degree that it made his Honour "extremely hesitant" to grant exclusive coverage to the NUW. In that sense, the NUW's conduct was such as to disqualify them from the benefit of an order and there was no countervailing factor which could persuade his Honour to order otherwise (at 414 - 415). 428 A breach of undertakings by a union not to encroach into areas of coverage is another matter going to conduct. This factor was a substantial influence on Bauer J in the Toll Collectors Case. Similarly, and more recently in Health and Research Employees Association v Public Service Association, the Full Bench held that Schmidt J had not erred at first instance by considering the industrial conduct of HREA and the PSA. Schmidt J found that there was a proper basis for employees who had resigned from the PSA in favour of HREA for some concern as to the industrial representation of the PSA. However, that factor needed to be considered in the light of "HREA's own conduct". It was found that HREA had engaged in a recruitment campaign and, in the course of doing so, had done nothing to explain to the former PSA members the difficulties which might arise in pursuing their industrial goals for a separate award and improved salaries. In short, it was found HREA had failed to take any steps to give psychologists a realistic appreciation of "the real prospects of obtaining their goals". Her Honour also explored the conduct of the two unions in their campaign to secure psychologists as members. It was found that both unions could be criticised, but it was concluded in this respect that HREA's conduct was more reprehensible by exploiting "an opportunity which had presented itself" contrary to a prior arrangement. 429 Similar conduct was the subject of criticism by the AIRC in Olex Cables and Ors v The National Union of Storeworkers, Packers, Rubber and Allied Workers & Ors. The NUW applied for a demarcation order in its favour to the exclusion of the Federated Ironworkers Association (FIA). In particular, the FIA issued recruitment material holding out the prospect of gaining more favourable rates of pay and did so in the context of the NUW's well established pattern of membership and the FIA's narrow membership base. Munro J was highly critical of the FIA's conduct and found that it threatened the stability of the existing pattern in the workplace and represented a dangerous mix of ingredients with the capacity to create demarcation disputes. At the same time, it inhibited the capacity of the industry to meet the challenges of change and the maximum efficient use of labour resources (at 390). The re-emergence of the FIA also revived competition between the two unions which had been resolved by agreement over two decades earlier. The FIA's departure from that agreement (which was relevant under the terms of s118(4) of the 1988 Act (Cth) prior to amendment in 1990) was a significant factor and supported an award in favour of the NUW. An appeal against this decision was dismissed by the Full Bench in Federated Ironworkers Association of Australia v National Union of Storeworkers, Packers, Rubber and Allied Workers (1990) 35 IR 396. 430 This case contains many of the elements referred to in the aforementioned authorities, which make relevant the industrial conduct of the AMWU in the determination of the application. Those factors are as follows: 1. Whilst it may be accepted that the AMWU did not, by its own initiative, recruit the employees of Multi-Fill, it actively pursued the initiative taken by employees of Multi-Fill by means of conducting meetings and holding discussions with those employees. There is no doubt that by the first meeting with those employees, the AMWU knew that those persons had been previously represented by the AWU. It is also a reasonable inference that, having regard to the discussion of grievances at the initial meeting between the employees and the AMWU, and the invitation by the AMWU to hold a discussion amongst themselves before further contacting the AMWU, the employees joined the AMWU upon the expectation that it would take up their causes and complaints. This is, of course, what then occurred, although not necessarily in the manner contemplated by those employees (for example, with respect to later taking up the issue of multi-skilling). 2. For reasons earlier discussed under the heading 'Multi-skilling', I consider that the AMWU's involvement in multi-skilling issues should result in an adverse finding in relation to that organisation. The AMWU became a vehicle for discontent over multi-skilling and ultimately a successful resistance to its introduction. It is no justification to argue that there were already difficulties being experienced at the time of the AMWU's involvement. At that time, the industrial parties were attempting to manage change using existing consultative mechanisms in the light of the awards and agreements then applying at the workplace. By enrolling the employees who were disaffected with the AWU, the AMWU permitted those persons to act contrary to the orderly and agreed process of workplace reform which was necessary for the business. Indeed, the AMWU is further blameworthy for its failure to properly investigate both the genuineness of the reasons for the workers rejection of multi-skilling and the existence of the prior award and the recent agreement approved by the very workforce who then resisted the change. The AMWU's position would have been strengthened if there were more substantial, if not genuine, concerns over multi-skilling or the circumstances of its introduction. However, the grievances as to that system and the measures accompanying its introduction were, when objectively considered, without proper foundation. The grievances served only to cloak the real core of resistance to the introduction of multi-skilling. The AMWU's advancement of them is not to its credit, particularly where those issues, such as training, job security and safety, were not raised with Multi-Fill, although there was a later discussion as to a training committee. I reject that act as a significant factor in favour of the AMWU for reasons earlier given in this decision. 3. Further, and not unexpectedly given the link between multi-skilling, and the 1999 agreement, the involvement of the AMWU created difficulties with the implementation of that agreement. That consequence was not confined to the introduction of multi-skilling, but rather extended to the introduction of wage increases under the agreement and the finalisation of the agreement. Indeed, the AMWU sought to challenge, in these proceedings in evidence and submissions, whether a meeting of union members had approved the 1999 agreement. That proposal was found wanting on the evidence. The denial of this process does not auger well for the future of industrial relations at the workplace. It does not assist the AMWU's case that Multi-Fill had experienced some difficulties in the implementation of multi-skilling at the outset of the 1999 agreement. This was a feature of resistance to change in the workplace. It could be expected, on the history of the AWU's and Multi-Fill's good relationship at the workplace, that the issues would be resolved through consultation processes in due course. Indeed, the Consultative Committee process had been resumed for that purpose. 4. The AMWU not only dislocated that process of change but struck at the core of industrial relations at the workplace, by promoting alternative industrial outcomes to the 1999 agreement and, perhaps even more significantly, the foundational 1995 Award. It did so by indicating that it would renegotiate the 1999 agreement (however modest the changes may be save for the challenge to multi-skilling) and introducing the prospect of three new awards into the workplace. Indeed, in submissions before the Commission, Ms Terpstra actually put that the AMWU was dissatisfied with the $13.50 second wage increase under the 1999 agreement (a proposition which, on the evidence, the AMWU itself had never put to Multi-Fill). I should note, in this respect, that Ms Moore, in evidence and consultative committee meetings, and Ms Howe, in evidence, had contended that greater salary increases should be afforded employees for multi-skilling (a proposition contrary to the prior agreements reached between the industrial parties and approved by a meeting of union members). It is hardly surprising that industrial disharmony and disruption occurred at the workplace with competing unions and one union, the AMWU, being disruptive of stable industrial relations in a variety of different ways - by re-agitating settled issues, suggesting the introduction of new awards and serving logs of claims - thereby undermining the status quo. I would adopt, in this respect, the observations of Moore VP in Australian Workers Union v Federated Engine Drivers and Firemens Association of Australasia and Ors (1992) 44 IR 453 at 462, where his Honour stated that: I add by way of concluding remarks that even if there are compelling arguments why coal miners, metalliferous miners and miners engaged in other mining should be represented by the one registered organisation, the process of rationalising representation to achieve that end should not occur, in my view, by the recruitment or enrolment of disaffected members of one organisation into another with the possible consequences to which I earlier referred. His Honour was referring here to his earlier observation that demarcation contests, where one organisation attempted to recruit (and the other retain) membership, could lead to "significant disputes that potentially could disrupt production or at least destabilise industrial relations at the workplace". 431 To this observation I would add that I consider it undesirable, having regard to the objects of the Act, to permit an organisation to recruit or enrol members of another organisation where, as in this case, the other organisation, namely the AWU, was bona fide engaged in assisting with workplace reform in accordance with the objects of the Act and the principles of structural efficiency change promulgated by this Commission. It may often be the case that organisations will be vulnerable to the encroachment of other unions in such circumstances if the process of change meets resistance or is misunderstood. An organisation should not be protected if it has ignored the genuine grievances of its members, but here, where the grievances are without proper foundation and arisen after the organisation has actively consulted with its members about the change and obtained their approval, it is entirely consistent with the Act that orders would be made in its favour under ss294 and 295 in circumstances where a new organisation in the field seeks to recruit or enrols its members. The position is a fortiori the case when the challenged union acts in conformity with its obligations under an award and agreements. 432 I should note that I do not accept the attack by the AMWU on Multi-Fill's conduct. It was entitled, in my view, to pursue the introduction of multi-skilling. When met with resistance by the AMWU, it attempted to reduce the adverse consequences for industrial harmony then arising, even to the extent of offering the second wage increase under the 1999 agreement without the need for multi-skilling (thereby to its detriment). Having regard to the evidence concerning the particular issue affecting Ms Moore, I do not consider any criticism is warranted (nor is the issue material, in my view, to these proceedings). 433 Industrial conduct is, however, but another factor to be taken into account in the determination of this matter. It is not determinative but it is a factor favouring the AWU application over that of the AMWU. Employer Preference 434 Employer preference, as a relevant factor, is supported by the same objects of the Act which point to the relevance of employee preference (subsections 3(c) and 3(d)). Employer preference as a relevant consideration is also inextricably bound up with issues pertaining to the needs of the enterprise, such as structural efficiency and industrial harmony. Thus, in Public Hospital Employees Skilled Trades (State) Award, Boland J took into account the expressed preference of the employer in that, if the AWU were to be successful in its application, the result would be the introduction of another union which would serve to threaten the stability of the industrial relations environment and potentially lead to further demarcation disputes. 435 Similarly, in NUW v TWU, Hungerford J found the employer's preference was consistent overall with the need for structural efficiency measures to be implemented at the relevant workplace, which had already been implemented at another site where the employees were predominantly members of the TWU. The factors supported by the employer, and which gave rise to the employer's clear preference for the TWU, were matters of general relevance which had a persuasive influence over his Honour's decision. In particular, the conduct of the NUW, which resulted in a high level of disputation and employee disregard for their obligations therefore subsequently creating an inefficient and unproductive workforce, became a matter of employer interest for reasons which are clearly related to business viability and microeconomic improvement (see generally Hungerford J at 410 - 411). More will be said of the conduct issue in the next section. 436 Considerations, such as those discussed in NUW v TWU, clearly demonstrate that the issue of employer preference in demarcation issues will be more significant, although not determinative, where they involve a position being taken by the employer to reasonably improve workplace practises rather than the mere preference for a union based on its general antecedents, such as levels of industrial militancy and the like. This has been explained as a reflection of the modern pressures for productivity and flexibility. Past practices of multiple demarcations within occupations and workplaces, which demand that different workers represented by different unions perform different but related tasks, have created overstaffing and inefficiency which can only be remedied by challenging existing lines of demarcation: see Creighton and Stewart, Labour Law: an introduction, 3rd ed. at [12.42]. 437 The support of the AWU's application by Multi-Fill in these proceedings corresponds directly to these considerations. It was contended that the introduction of the AMWU into the workplace would adversely affect the business of Multi-Fill in a number of significant ways - by interfering with the process of workplace reform, causing industrial disharmony, disrupting an orderly and stable system of industrial regulation and undermining the existing good working relationship that exists between it and the AWU. 438 As I will discuss in relation to employee preference, the 'preference' or opinions of an employer should be tested objectively. However, and having regard to earlier findings of fact and conclusions reached in this decision, I consider that the concerns by Multi-Fill are not fanciful and relate to matters really affecting the viability and prospects of the business when objectively examined. 439 This factor is again a factor in favour of the AWU's application and against the AMWU's application. Employee Preference 440 The relevance of employee preference in demarcation proceedings arises, in part, from the objects of the 1996 Act in respect of promoting participation in industrial relations by employees and employers at an enterprise or workplace level (sub-section 3(c)) and encouraging participation by representative bodies of employees (sub-section 3(d)). In NUW v TWU, Hungerford J noted that consideration of the interests of employees was often interpreted as their preference for one organisation over another, an interpretation which was understandable given that an organisation of employees is the "union of persons with a community of interest in the industrial relationship with an employer". 441 Employee preference is relevant but not decisive. The opinions expressed by employees need to be considered objectively. Hungerford J found this was the case in NUW v TWU, where his Honour stated (at 408): Nevertheless, employees preference for one organisation cannot be decisive, if only for the reason that where the interests of others are concerned, such as an employer or another organisation or the public interest, an objective as distinct from a subjective approach needs to be followed. I affirm my views in that respect as stated in Federated Ironworkers Association v Transport Workers Union (at 127) by reference to the views of Sweeney J in Health and Research Employees Association of Australia, NSW Branch v University of New England [1984] AR(NSW) 623 at 625-626; (1984) 8 IR 356 at 358 and to those of the former Industrial Commission in Court Session (Fisher P, Watson and Macken JJ) in Re Australian Workers Union, NSW Branch [1983] AR(NSW) 400 at 411; (1983) 4 IR 404 at 413. 442 In the Toll Collectors' Case, the employees clearly favoured the AWU, however, those views were set against a background of unrealistic expectations. The employees had exhibited a pattern of persistent behaviour where every issue was fought as urgent, where union representatives were continually called upon in often pre-emptory circumstances and where the current frustrations of the employees arose from a decision of the Commission which was contrary to their expectations. They had vented those frustrations upon the PSA rather than accepting the reality of the decision. In that sense, his Honour found that the views of the employees were not valid. 443 Similarly, in Re Australian Workers Union the Full Bench of the Commission in Court Session declined to follow the outcome of a secret ballot in which the employees expressed their preference between two competing unions in the context of an application where the AWU sought to amend its constitutional rules, to enable it to cater for the interests of a wider group of employees who had already been the subject of a demarcation order made in favour of the Shop Distributive and Allied Employees Association (SDA) (see [1981] AR 614). The outcome of the ballot occurred in the context of the SDA being "handicapped in putting forward its point of view prior to the ballot" (at 411). In those circumstances, the views of the employees could not be freely accepted and there were "substantial pragmatic reasons" why this was so. In the totality of the circumstances, the Full Bench held that both unions were capable of representing the employees and in time the employees would, in a reasonable and common sense way, accept whatever the final outcome of the application (at 411). 444 In PSA v HREA, Schmidt J considered the competing applications in circumstances where there was a rejection by many psychologists of the PSA. Those psychologists had expressed dissatisfaction with representation of the PSA on their behalf. Schmidt J's approach was to consider whether the "strongly held dissatisfaction" with the PSA was "either warranted on the evidence or of such a character as to properly lead the Commission to the conclusion that the historical representation of their interests should be disrupted" (at 152). Her Honour's conclusion was that past representation, whilst open to valid criticism in some regards, was not "so inadequate and unsatisfactory" as to warrant the granting of the application (at 154). Further, her Honour considered that whilst the decision of a large number of psychologists to join HREA was an important factor in favour of the HREA application, that factor must be weighted in the balance (at 157). Her Honour further observed: On occasions disputes arise between Unions over the coverage and representation of particular classes of employees, with some of those employees favouring one Union and some another. When such disputes are brought to the Commission, the Act requires the Commission to have regard to various considerations in addition to the wishes of the particular employees concerned. Those consideration are specified in s 221 of the Act. This approach results from the fact that Unions which are registered industrial organisations under the Act acquire various consequential rights and privileges which attach to such registration. Those rights and privileges reflect the particular and important role which registered organisations play in the scheme of industrial regulation established by the Act. 445 As was observed by the Full Bench on appeal from her Honour's decision (at 168): The views of particular members of an organisation, whilst relevant to take into account, are nevertheless subjective at best and must, we think, be assessed in an objective manner. 446 The Full Bench found no error in the approach adopted at first instance that the preference of employees for a particular organisation was an important but not a determining factor. Nor was there any error in Schmidt J posing the question as to whether employee dissatisfaction was warranted or of such character as to disrupt the representation by the PSA (although the Full Bench indicated that it may have reached a different conclusion in the matter if it had considered the issues at first instance). 447 Such an approach was adopted by Boland J in the more recent decision of Re Public Hospital Employees Skilled Trades (State) Award. His Honour noted the employees who expressed a preference for one union, the AWU, did so in light of a background of each having come from the same workplace and each having been recruited by the same local organiser in a regional town, in which the AWU maintained an office. The organiser had the advantage of being a local and being able to enrol the employees prior to any other union approach. 448 The Federal Commission took a similar approach under the 1988 Act and in Association of Australian Port and Marine Authorities and Ors v Waterside Workers Federation of Australia (1993) 51 IR 59 (the Waterside Workers Case), the Full Bench confirmed the importance of maintaining the democratic and representative character of a union as stated in R v Sweeney; Ex parte Northwest Exports Pty Ltd (1981) 147 CLR 259 at 267 per Stephen J (at 5) and also confirmed and adopted the approach taken by Munro J in Re Queensland Alumina Ltd in terms of the balance that is to be struck between preference of the employees and other considerations (Re Queensland Aluminium Ltd at 326; Waterside Workers Case at 95). 449 In this matter, a significant proportion of the workforce of Multi-Fill, the subject of the applications, resigned from the AWU and joined the AMWU. The AMWU thereby had, at the time of the hearing of the matter, a significant membership at Multi-Fill. Those employees expressed a desire to join the AMWU primarily based upon their dissatisfaction with the AWU. These are factors in favour of the AMWU's application over that of the AWU. They are not decisive and need to be balanced against other factors. The circumstances under which these persons joined the AMWU and their reasons for doing so, as the authorities require, need to be considered objectively. 450 As I will now discuss, the weight which may be given to this factor is diminished by two considerations: 1. In accordance with my earlier findings and conclusions, the shift in union membership was primarily motivated by a desire to avoid or defeat the introduction of multi-skilling. 2. Both in support of that conclusion and as to the objective assessment of the elements of dissatisfaction, the grievances expressed by members of the AMWU called to give evidence were by and large without any proper foundation. 451 I should note that a smaller proportion of the workforce remained with the AWU. Their views in favour of that organisation were not challenged. 452 I turn now to the reasons given by the employees who left the AWU as a result of their preference for representation by the AMWU. Evidence was called by the AMWU on this issue from Ms Moore, Mr Gray, Ms Mooney and Ms Howe. I will consider each of their evidence in turn. 453 Ms Moore gave affidavit evidence as to her reasons for joining the AMWU. The principal reason was dissatisfaction with the AWU. She felt that the AWU did "nothing for us" and that in relation to the 1999 agreement " we had been sold down the drain by our Union". According to Ms Moore the employees heard "little things" about the meetings of the Consultative Committee discussing the 1999 agreement, however, "When the agreement came back everything was changed. A lot of words were changed." Ms Moore also referred to a dispute "over girls working for 3 minutes unpaid every day which totalled 11 hours each week. We never saw any paperwork or nothing and they only got four hours pay." Ms Moore criticized the AWU for not doing anything to assist her in becoming a permanent full-time employee. She deposed that she had asked Mr Jovanovski, the AWU delegate, about a permanent position with Multi-Fill and he had responded "keep asking and you are going to loose out." She had also asked Mr McConville about a permanent position but "Nothing ever came back to me about it. I also never knew when Ron McConville was on the premises. We never got called out to reception to see him." Finally, Ms Moore referred to her concerns with multi-skilling, to which I have already referred, and deposed that the AWU "never showed any interest in addressing these problems." 454 Evidence was called by the AWU from Mr Jovanovski, Mr McConville and Mr Partridge to refute Ms Moore's evidence as to inadequate representation by the union. In relation to the Consultative Committee meetings, Mr Jovanovski denied that the AWU did not consult with its members. He gave evidence, which was not challenged, that his co-delegate who subsequently joined the AMWU, Ms Nagy, had been the contact point between the Committee and the "shop floor" to address issues either raised or to be raised at the meetings. According to Mr Jovanovski's evidence, which was not challenged, the 1999 agreement had been discussed in detail at the Consultative Committee meetings and the changes to the document were made as a result of negotiations. Further, Mr Jovanovski's evidence was that any employees who wished to take part in meetings of the Consultative Committee were free to do so and that Ms Moore had only attended one meeting, on 3 February 2000, "where she was very unhelpful and attacked virtually every aspect of the Agreement that had been negotiated." In relation to employees attending meetings of the Consultative Committee, Mr McNamara was asked by Ms Terpstra during cross-examination how people on the shop floor, not being members of the Committee, gained access to the meetings. His response was that "They were invited. It is not a hard and fast rule that we have, we go with the wishes of the people. If they want someone to attend, I didn't object." It was not in dispute that Ms Moore attended only the one meeting. 455 Mr Jovanovski's evidence as to the changes to the 1999 agreement being made as a result of negotiation was supported by Mr McConville who further deposed that, after he attended Consultative Committee meetings, he regularly held report back meetings with members and when he did not attend meetings "it was the understanding that the co-delegate Pat Nagy would inform employees on the line as to what was happening." Mr McConville's evidence as to his reporting back to members after meetings was not challenged and was supported by the evidence of Mr Partridge who deposed that "At union meetings Ron would explain to the employees as best he could what the company was after through multi-skilling. Ron would always ask the union meeting what we wanted Ron to say or do with management in relation to multi-skilling. Ron would never tell us what to do." Ms Moore was asked during cross-examination by Mr Tripodi whether there was an understanding that Ms Nagy would report back to the members on the shop floor as to what had occurred during Consultative Committee meetings and her response was "Sometimes we got told a few things but we never ever got told everything." 456 I have already discussed the company's practice of placing on notice boards the minutes of the Consultative Committee meetings. Ms Moore acknowledged during cross-examination by Mr Vernier that this was in fact done and the following exchange then took place: Q. So if you chose not to read that information it would mean that you are just not interested? A. Why? Do you think I have all day to go to a notice-board and read what's on it? I might not go to that notice-board from one month to the next. I don't always go to the notice-board and read what's on it. Q. It's only a couple of pages? A. Why would I want to do it all the time? 457 I note, in this respect, my findings as to the adequacy of the consultation process both as to the 1999 agreement, both in terms of the selection and conduct of the Consultative Committee, and reporting by the AWU to its members. In fact, I consider that there was, on the evidence earlier discussed in this decision, a high level of consultation over the agreement making process and that the AWU played an active and effective role, including reporting regularly to its members and taking the 1999 agreement to a meeting for its consideration (and ultimate approval). As to Ms Moore's evidence that the AWU showed no interest in her concerns with multi-skilling, I simply refer to my earlier comments as to the nature of those concerns and the extensive process of consultation which was undertaken as to that issue. 458 Ms Moore was cross-examined by Mr Vernier as to the dispute referred to in her affidavit relating to employees working three minutes unpaid every day. It had apparently occurred some years previously and she acknowledged that her calculations were in fact incorrect. According to Ms Moore, "What happened, they had a dispute and someone took up where they're working three minutes overtime too much and they were supposed to be paid out - it worked out for 11 hours - it worked out over three minutes it was a total of 11 they work out as. When it went to the Commission they were told they would only get four hours paid and not 11 hours." In short, the matter was resolved by proceedings in the Commission. This can surely not be the basis for a complaint against the AWU. 459 In response to Ms Moore's allegation that neither Mr Jovanovski nor Mr McConville would do anything to assist her in becoming a permanent employee, Mr Jovanovski gave affidavit evidence, which was not challenged, as follows: "Sue Moore did ask me when she could go permanent but I deny that we had the rest of the conversation outlined in point 11 and I deny points 12-13. I explained to Sue that I did not have power over making her a permanent full-time employee but that I would take the issue up with management. I then spoke to Ron McConville about this. Ron raised the issue with management on behalf of Sue Moore and a number of other employees at the consultative committee meeting of 29 July 1999. This is indicated on the second last page of the minutes of that meeting. The result of this was that at the consultative committee of 9 September 1999 Ian McNamara announced that the employees concerned including Sue Moore would change employment status from permanent part time to permanent full time employees." 460 Ms Moore was cross-examined by Mr Tripodi as to Mr Jovanovski raising with Multi-Fill her becoming a permanent full-time employee and the following exchange took place: Q. Is it not the fact that he took up the issue of making you a permanent full- time employee, with management? A. No, Ian McNamara made me permanent. Q. Do you know whether Steven Jovanovski took that issue up with management for you? A. No. Q. You do not know? A. No. Q. Do you remember whether Ron McConville became involved in that? A. No, Ron McConville didn't become involved in that. Q. Is it not the fact that on 9 September 1999 Ian McNamara announced that you were to become a permanent full- time employee and you became one? A. Yes. Q. Did you speak to Ron McConville on a number of occasions by telephone about training and multi-skilling? A. No, I did not. 461 It was clear from this evidence that this complaint by Ms Moore was ill-founded. The problem was rectified on her behalf. She simply did not know what involvement the AWU had in that outcome. It was plain that the AWU was, at least, partially instrumental in the positive outcome (to the extent of petitioning on Ms Moore's behalf). 462 Mr McConville denied Ms Moore's suggestion that he did not make himself available to her and deposed that he spoke with Ms Moore both in person and on the telephone on a number of occasions about training and multi-skilling. Having regard to my assessment of Ms Moore's credit and my earlier discussion regarding this person's attitude to multi-skilling, I prefer Mr McConville's evidence. 463 Mr Gray stated the following in his affidavit as to his dissatisfaction with the AWU: 8. I trust the AMWU not the other one. The AMWU at least comes out and talks to us, the other one doesn't. 9. Even if the other union organiser came in he would just go and see his delegate, we would never see him, he wouldn't come and talk to us. 10. When we were members of the AWU there were times we were out on the grass. I remember they were over the Enterprise Agreements. Nearly all the trouble we've had has been over them. Tops four times out on strike in one year a couple of years ago. 464 Mr Gray acknowledged during cross-examination that there had been general union meetings held by the AWU, although according to Mr Gray it had been "a long time" since such meetings and he could not recall whether he had attended the meetings or not, but he did recall a meeting of employees in 1999 during which Mr McConville went through the 1999 agreement in detail. Further, Mr Gray was a regular participant in Consultative Committee meetings leading to the 1999 agreement. He made no apparent complaint about that agreement and, in the course of those meetings, was involved in its formulation with Mr Jovanovski and Mr McConville. When questioned by Mr Tripodi as to the industrial action referred to in his affidavit, Mr Gray conceded that it had taken place in approximately 1995 since which time there had been no further industrial action at the workplace until December 2000. Mr Tripodi asked Mr Gray about a complaint which he had laid concerning him doing the same work as another employee, but for less pay. Mr Gray acknowledged that he had raised his complaint with Mr Jovanovski, who had then brought it to the attention of management, which resulted in him receiving a wage increase. 465 Mr Gray was also cross-examined as to his reasons for not trusting the AWU and, as I have previously noted, his evidence was that he had no real reason for not trusting the AWU "It's just a thing for myself." 466 Mr Gray was asked by Mr Vernier whether the employees at Multi-Fill had held a meeting as to which union they would join and his response was "Myself I am not sure if they had a union or not, go to a union meeting or not, but I would have just went - I probably would have just went with the flow to the union where I felt that had the interest of the employees." 467 In her earlier affidavit, Ms Howe deposed that "We all put a dispute in about multi-skilling." She further stated that "We got sick and tired of the run around from the AWU. I became the delegate for the AMWU. We used to have dirt money, wash up time and other things but we don't get none of that any more." According to Ms Howe "The majority of people are feeling better about our representation and everyone is sticking together." In her later affidavit, Ms Howe deposed as to her dissatisfaction with Mr Jovanovski and Mr McConville. She referred to meetings held during 1999 and 2000 to discuss the 1999 agreement and stated that at those meetings "our concerns about the agreement were never addressed." Ms Howe deposed that at the last meeting "Steve was laughing at people" who voiced their concerns with the Agreement. According to Ms Howe, her concerns with multi-skilling remained unaddressed. 468 When asked why she should want to join the AMWU she answered "we" have had "a lot more co-operation from them in the last twelve months" (than they ever had with the AWU in the last 14 years). That, in itself, is a matter of hindsight, it is not a reason for joining the AMWU. It is an assessment based on knowledge gained after the fact and was not an answer to the question posed. There was, in fact, no evidence of a complaint being made by Ms Howe as to representation prior to the introduction of multi-skilling. None was raised in consultative committee meetings and no evidence was given of that fact. I have earlier dealt with the significance of multi-skilling as the real source of this grievance. Mr Jovanovski was criticised because of his attempt to persuade the employees to trial and accept multi-skilling. 469 The only direct evidence of a grievance about the effectiveness of the AWU's representation of its members given by Ms Howe was the reference to dirt money and wash up time. That complaint was shown to be ill-founded during her cross-examination, when the following exchange took place: Q. Do you know why you lost your dirt money? A. Well, to get different things, you know. Like we wanted pay rises and things like that, We had to give something to get that back. Q. What if I put to you that you lost the dirt money because at one time Multifill had a paint line and that stopped with the dirt money? Do you agree with that? A. Yes. On other jobs too, dirt money- not dirt money, wash up time-- Q. I am getting to wash up time, I would like to show you a copy of the Multifill Enterprise Agreement Award which is exhibit 28 (shown). I just want to take you to page 899 of that document. Can you see that? A. Yes. Q. I want t take you to, it is paragraph (b) and then (ii) and it has got "Breaks" and then at the end of that little section can you see there "Afternoon tea and wash up totalling fifteen minutes is offset by finishing fifteen minutes early everyday?" A. Yes. Q. So you would agree with me that wash up time was taken out because you finish fifteen minutes earlier? A. Yes, you would be right. Q. So we can effectively rule out those complaints that you have made in the dirt money and wash up time, can't we? A. The dirt money, I suppose so. Q. The wash up time as well? A. Well, wash up time would depend on what job you are doing. Some jobs you do you get really dirty. Q. But you were compensated for that by finishing fifteen minutes early, weren't you? You just agreed with me on that point? A. Yes. Q. So we can rule out that complaint. You do not have that complaint any more? A. No. OK. 470 The thrust of Ms Mooney's evidence was that she joined the AMWU because of dissatisfaction with the AWU. The reason given by Ms Mooney in her first affidavit for her dissatisfaction was that she felt that the AWU "weren't doing anything for us. When we asked why we can't get a 'Yes' or a 'No' we never got a straight answer. It was always 'wait until after Christmas', or 'give me a couple of weeks to look into it', or 'I'll get back to you.'" In her later affidavit Ms Mooney deposed that she joined the AMWU due to the AWU's failure to address her concerns with multi-skilling. She went on, however, to then state that "My main concern with being in the AWU was that I found out that the 1997 and 1999 Agreements were never registered. I was not happy that the union did not fix this. They knew about this and they did nothing. I was paying them a lot of money and they weren't doing anything for the money I was paying them." 471 Evidence was called by the AWU from Mr Jovanovski and Mr McConville to refute Ms Mooney's evidence of inadequate representation by the AWU. In response to Ms Mooney's suggestion that "we never got a straight answer", Mr McConville deposed that "if I was approached by an employee or employees with a problem I did say that 'I'll get back to you' as I had to raise matters with management and after I did this I did get back to the individual employee or employees concerned as soon as practicable." In the light of my assessment of him as a witness, and other evidence as to his representative role, I accept this evidence (and to the extent of any conflict, I reject the evidence of Ms Mooney). I consider, on all the evidence, that Mr McConville did perform an effective organiser role at Multi-Fill. I note that Ms Mooney conceded during her cross-examination by Mr Tripodi that Mr Jovanovski would make a reference to waiting "until after Christmas" because Christmas was a busy time and they needed "to get the work out." I have discussed previously Ms Mooney's concerns with multi-skilling and do not repeat them here. In relation to the AWU's alleged failure to address those concerns, Ms Mooney acknowledged, during cross-examination by Mr Tripodi, being aware that Ms Nagy, who subsequently joined the AMWU, was the AWU co-delegate and sat on the Consultative Committee. It was Ms Nagy's role to be the contact point between the Committee and the shop floor. Ms Mooney further conceded during her cross-examination that, whilst she had not attended meetings of the Consultative Committee, she was aware that she could have done so as an observer. 472 Ms Mooney's concern with the 1997 and 1999 agreements not being registered are, in my view, without real substance in view of my earlier conclusions as to that matter when raised by Ms Terpstra in these proceedings. 473 It is clear that the main, if not the only real reason, for Ms Moore, Ms Howe and Ms Mooney leaving the AWU and joining the AMWU was their desire to avoid the implementation of multi-skilling. Any other reasons which they gave for leaving the AWU were, when tested, substantially found to be without any reasonable basis. Some complaints were simply based upon a mistaken or exaggerated view of the facts. Other complaints, it must be said, seemed entirely ill conceived and designed, it would appear, to find some justification for the union preference irrespective of whether the view had any real foundation. Mr Gray simply followed the majority of the employees. 474 It was submitted by the AMWU that Mr Gray, Ms Mooney, Ms Howe and Ms Moore all indicated that if they could not remain members of the AMWU "that they will not belong to a union at all." It was contended that if the orders sought by the AMWU were not granted, then these employees would remain unrepresented. 475 Mr Gray's evidence was that he "wouldn't join any other union if I can't stay a member of the AMWU." Ms Mooney deposed that unless she could remain a member of the AMWU she would "not join any other union." According to Ms Moore's evidence, "If we don't win this dispute we are not going back to the AWU." Whilst Ms Howe did give evidence as to her dissatisfaction with the AWU, to which I have previously referred, she did not testify that unless she could remain a member of the AMWU she would not belong to any union. 476 If the Commission determines that industrial representation at the workplace is to be provided by the AWU, these employees will have the choice of either joining a union that can represent them or of not belonging to a union. In the event of the Commission making a determination in favour of the AWU, I consider it highly unlikely that this group of employees would remain aloof from a union empowered to represent them under the Act. Multi-Fill is not, on the evidence (or at least up until the time the AMWU became involved), a workplace where there has been rigidly defined areas of conflict between the unions and management. The evidence suggested that prior to December 2000 there had been no industrial action at the workplace since approximately 1994 or 1995. There was evidence of a reasonably high level of involvement by the AWU in the process of change at the workplace as well as industrial negotiation. In these circumstances it is unlikely that employees, over a period of time, would elect to not join the relevant union, which would have a significant impact upon their quality of life at work, in that process. In this respect, I adopt the earlier mentioned approach of the Full Bench in Re Australian Workers' Union. Conclusion 477 The exercise of a discretion under ss294 and 295 of the 1996 Act requires a balancing of relevant factors. In my view, no one factor in this matter has been decisive. However, the combination of factors earlier identified as being in favour of the AWU application substantially outweigh, in my view, the factors in favour of the AMWU (assuming constitutional coverage by that organisation). This is particularly so when the factors in favour of the AWU essentially harmonise to produce a result most favourable having regard to the objects of the Act. They produce, in my view, a positive outcome from an industrial relations viewpoint in favour of the employer (which maximises the potential for a harmonious and productive workplace), the union (by the retention of its historical coverage and representation) and employees (by their effective representation and involvement in achieving the mutual advantageous outcomes of workplace reform and reasonable wages and conditions). The AMWU's application is, having regard to its involvement at the workplace, by and large counterproductive to those outcomes, although plainly it is favoured by a substantial proportion of the workforce. The reasons for those workers electing to join the AMWU diminished, however, that matter as a factor in favour of the AMWU. 478 In these circumstances, I consider that a compelling case has been established to determine the demarcation question by allowing the AWU application and making orders in its favour as to representational interests pursuant to s295(1). I dismiss for those same reasons the AMWU application. Accordingly I make the following orders: 1. The Australian Workers' Union, New South Wales, is to have the right, to the exclusion of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch, to represent under the Industrial Relations Act 1996 (NSW) the industrial interests of all employees of Multi-Fill Pty Ltd engaged at 14 Garling Rd, Kings Park in the State of New South Wales, who are eligible for membership of the Australian Workers' Union, New South Wales, excepting for employees of Multi-Fill Pty Ltd employed as receiving store-persons, production store-persons or dispatch store-persons, who are eligible for membership of the National Union of Workers, New South Wales Branch. 2. The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch is not to have the right to represent under the Industrial Relations Act 1996 (NSW) the industrial interests of employees of Multi-Fill Pty Ltd engaged at 14 Garling Rd, Kings Park in the State of New South Wales, who are eligible for membership of the Australian Workers' Union, New South Wales. 3. The application by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch in Matter No IRC 1552 of 2001 is dismissed. 479 The AWU also applied for an order varying the AMWU rules. Section 295(2) requires that the Commission determine such an application only after giving each industrial organisation and the State Peak Council an opportunity to be heard. In the result, I shall list this matter for directions at 9.30am on Tuesday, 29 October 2002 to consider any programme that may be necessary to hear that application, if pressed. The AWU shall provide a copy of this decision to the Labor Council of New South Wales and advise it of the date fixed for directions. The AWU and AMWU should confer as to this aspect of the AWU application in the intervening period, if appropriate, in conjunction with the Labor Council of 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.