Industrial Relations Commission of New South Wales CITATION : Public Hospital Employees Skilled Trades (State) Award Application for variation re: parties to the Award; application for orders pursuant to s 295 of the Industrial Relations Act 1996 [2001] NSWIRComm 41 Australian Workers' Union, New South Wales Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch PARTIES : Construction, Forestry Mining and Energy Union, New South Wales Branch Electrical Trades Union of Australia, New South Wales Branch Health Administration Corporation New South Wales Plumbers and Gasfitters Employees' Union FILE NUMBER: IRC 380 of 2000 and IRC 2937 of 2000 CORAM: Boland J CATCHWORDS : Award - Application by AWU to vary Public Hospital Employees Skilled Trades (State) Award to add AWU as a party - Competing application by AFMEPKIU pursuant to s 295 of the Industrial Relations Act to exclude AWU from coverage of employees under Award - AWU application dismissed - Orders made excluding AWU from right to represent employees under Award. Demarcation - Application by AFMEPKIU for orders pursuant to s 295 of Industrial Relations Act 1996 to give AFMEPKIU coverage of certain classes of employees employed under the Public Hospital Employees Skilled Trades (State) Award to the exclusion of the AWU and to exclude the right of the AWU to represent the industrial interests of such employees - Factors to be taken into account in determining demarcation questions - Orders made excluding AWU from the right to represent employees under the Award. LEGISLATION CITED : Industrial Relations Act 1996 Australian Workers' Union and anor, Re [1983] AR (NSW) 400, (1983) 4 IR 404 Federated Engine Drivers and Firemen's Association of Australia (NSW) v Federated Liquor and Allied Industries Employees' Union of Australia, New South Wales Branch [1983] AR (NSW) 889 CASES CITED : Federated Ironworkers Association of Australia, New South Wales Division v Transport Workers' Union of Australia New South Wales Branch (1998) 78 IR 123 Laundry Employees (State) Award (No 2), Re (1993) 49 IR 91 Public Service Association v Federated Clerks Union [1953] AR (NSW) 570 National Union of Workers' v Transport Workers' Union of Australia, New South Wales Branch and anor (1998) 84 IR 360 HEARING DATES: 02/12/2001 DATE OF JUDGMENT: 03/15/2001 THE AUSTRALIAN WORKERS UNION, NEW SOUTH WALES Mr R Tripodi AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION, NEW SOUTH WALES BRANCH Ms S Terpstra CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, NEW SOUTH WALES BRANCH LEGAL REPRESENTATIVES: Ms R Mallia ELECTRICAL TRADES UNION OF AUSTRALIA, NEW SOUTH WALES BRANCH AND NEW SOUTH WALES PLUMBERS AND GASFITTERS EMPLOYEES' UNION Ms R Mifsud HEALTH ADMINISTRATION CORPORATION Ms M Szalay JUDGMENT: - 28 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: BOLAND J Thursday 15 March, 2001 Matter No IRC 380 of 2000 PUBLIC HOSPITAL EMPLOYEES SKILLED TRADES (STATE) AWARD Application by Australian Workers Union, New South Wales for variation re parties to the Award. Matter No IRC 2937 of 2000 AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION, NEW SOUTH WALES BRANCH Application for orders pursuant to s 295 of the Industrial Relations Act 1996 DECISION 1 The Commission has before it for determination applications by two industrial organisations of employees. The first is an application by The Australian Workers' Union, New South Wales ("the AWU") to vary the Public Hospital Employees Skilled Trades (State) Award ("the Award") the effect of which would be to make the AWU a party to the Award. The second is an application by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch (" the AFMEPKIU") for orders pursuant to s 295 of the Industrial Relations Act 1996 ("the 1996 Act"), the effect of which would be, firstly, to give the AFMEPKIU coverage of certain classes of employees employed in public hospitals in New South Wales to the exclusion of the AWU and, secondly, to exclude the right of the AWU to represent the industrial interests of such employees. 2 The variation sought by the AWU was to cl 2 Definitions of the Award and involved adding the name of the AWU to those unions already listed, namely, the AFMEPKIU; Construction, Forestry Mining and Energy Union, New South Wales Branch ("CFMEU"); New South Wales Plumbers and Gasfitters Employees' Union, ("PGEU"); and, The Electrical Trades Union of Australia, New South Wales Branch ("ETU"). 3 The orders sought by the AFMEPKIU were: 1. An order that the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch an industrial organisation of employees is to have the right, to the exclusion of the Australian workers'(sic) Union, New South Wales Branch, (sic) to represent under this Act the industrial interests of the following class or group of employees: All employees employed in NSW Public Hospitals eligible to be members of the Australian Workers Union, New South Wales Branch (sic) including but not limited to: (a) Fitters of whatever description, Engineers, Mechanical and/or Scientific, (sic) Locomotive Workers, Mechanics, Machinists, Welders and, Instrument Makers, (b) Trades Assistants to the above, (c) Apprentices of the above. 2. An order that the Australian Workers' Union New South Wales, an industrial organisation of employees, is not to have the right to represent under this Act the industrial interests of any employees employed by or at NSW Public Hospitals. 4 It was agreed between the parties that the applications should be joined and that the evidence in one application should be taken to be evidence in the other. 5 An explanation of the background to the applications begins with the fact that for many years an organisation known as the Australasian Society of Engineers ("ASE"), which had coverage of various classes of tradespersons, was a party to the Award. Certainly, this was the case in 1980 when the Award was published in the New South Wales Industrial Gazette (219 IG 1861). Through a series of amalgamations during the 1980's and 1990's, the ASE became part of the AWU, thereby giving the AWU coverage of the classes of tradespersons previously eligible for membership of the ASE. 6 In 1997 the CFMEU made application for a new Public Hospital Employees' Skilled Tradesmen (sic) (State) Award. This Award was subsequently made by Maidment J on 19 March 1998 and was published at 308 IG 933 on 16 April 1999. The AWU was not listed as one of the unions party to this Award. The AWU apparently did not participate in the making of this Award and was not aware it had been made until it received, on 28 May 1999, a Notice of Award Review pursuant to s 19 of the Industrial Relations Act 1996 of the Commission's intention to review the Award, which had expired on 1 September 1998. Why the AWU was not involved in the making of the 1998 Award is not clear on the evidence. 7 In September 1999, shortly before an application for a new Award was to come before Walton J, Vice President, the AWU made application to become a party to the proposed new Award. In proceedings before Walton J, Vice President, in October 1999 a new Public Hospitals Employees Skilled Trades (State) Award was made. At the time of its making it was agreed between the parties that the new Award would contain a provision in the following terms: "This award (or clause) does not prevent The Australian Workers' Union, New South Wales from making an application to vary the award in respect of the definition of "Union" contained within clause 2 Definitions of this award." Walton J suggested to the AWU that it file an application to vary the award to incorporate the change sought. Subsequently, on 2 February 2000, the AWU filed its application which is the subject of these proceedings. The other unions party to the Award and the Health Administration Corporation (HAC) opposed the AWU's application. On 26 June 2000 the AFMEPKIU filed the application which is also the subject of these proceedings. It should be noted that the AFMEPKIU's application was supported by the other union parties to the Award and by the HAC. 8 It can be seen from this summary of the background to the applications that, on the one hand, the AWU is seeking to regain its role as a party to the Award and, on the other hand, the other union parties and the employer are seeking to not only block the AWU's application but also to exclude the AWU from representing employees employed by or at NSW public hospitals. In this respect the AWU contended that it had some 18 members employed under the Award. 9 If one were to take the AWU's application in isolation, there is nothing exceptional about it. Given the evidence of involvement (through its predecessor, the ASE) in the Award over a long period of time and the fact that the AWU has members employed under the Award, prima facie , there is no reason why the AWU should not be a party to the Award: see Re Laundry Employees (State) Award (No 2) (1993) 49 IR 91 at 99-100. 10 The complicating factor, however, is the competing application of the AFMEPKIU under s 295 of the Act whereby that union, with the support of other unions and the employer, seeks to exclude the AWU from representing the industrial interests of employees in NSW public hospitals. It would obviously be pointless to grant the AWU's application if the AFMEPKIU was to be successful in its application. 11 The 1996 Act in Pt. 6 of Ch. 5 provides as follows in relation to the determination of demarcation questions : Part 6 Demarcation orders 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 of 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. 12 In National Union of Workers v Transport Workers' Union of Australia New South Wales Branch and anor, (1998) 84 IR 360 at 365-366, a case determined under the 1996 Act, Hungerford J, referred to the wide discretion afforded to the Commission in determining demarcation questions and the varying legislative prescriptions over the years: 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 I.R. 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". 13 After referring to the objects of the 1996 Act Hungerford J said at 368-369: 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." Given that 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 of 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. 14 In NUW v TWU , Hungerford J was concerned with which union should have coverage of employees at a warehouse in Moorebank - either the National Union of Workers or the Transport Workers' Union. Of particular importance in the case were questions of efficiency and productivity and the need for a demarcation-free work environment. This raised questions of the industrial behaviour of the competing unions. 15 In the case before me, issues relating to productivity and efficiency and the industrial behaviour of the respective unions did not arise to any great degree. The thrust of the AWU's case was that previously it had been a party to the Award; it had members under the Award; through no fault of its own it found itself no longer a party; and, therefore, its status as a party should be reinstated. There was no criticism of the AWU's behaviour in the sense that there had been of the NUW in NUW v TWU . 16 The AFMEPKIU case, on the other hand, was based on four main contentions, namely: 1. The industrial interests of all employees of the HAC were adequately and effectively represented. 2. Industrial relations under the Award were good. 3. The employer was satisfied with the existing arrangements in relation to union coverage under the Award. 4. The AWU had not been, and had not sought to be, involved in representing the interests of employees under the Award. 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 award coverage. 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. Constitutions of the Competing Unions 18 An examination of the rules of both the AWU and AFMEPKIU reveals that there is no barrier to either organisation enrolling persons, eligible to be members, in the industry covered by the Award. In other words, there are no limitations in the rules of either union that would preclude them from enrolling persons, employed in the "industry" of public hospitals or health, who are eligible to be members. 19 The AFMEPKIU's application seeks an order giving it the right to represent, to the exclusion of the AWU, the industrial interests of all employees employed in NSW public hospitals eligible to be members of the AWU. The application goes on to refer to certain classes of tradespersons, trades assistants and apprentices but states that the claim is not limited to these classes of employees. The application also seeks an order to the effect that the AWU shall have no right to represent the industrial interests of any employees employed by or at public hospitals. 20 The application, which is quite far-reaching in its scope, was based on evidence and submissions that the four existing union parties to the Award, namely, AFMEPKIU, CFMEU, ETU and PGEU covered the field, so to speak, and that to make a fifth union party to the Award was unnecessary and unwarranted. It seems to me that the AFMEPKIU's application is, in effect, on behalf of itself and the three other unions party to the Award. I note in this respect the evidence that at Manning Base Hospital the AWU has an electrician, a carpenter and a plumber as members. The AFMEPKIU does not have constitutional coverage of these classes of employee but the CFMEU has coverage of carpenters, the ETU has coverage of electricians and the PGEU has coverage of plumbers. By framing its application in the way that it has, namely, to give it exclusive coverage of all employees employed in public hospitals eligible to be members of the AWU and to exclude the AWU from representing any employees employed in or at public hospitals, the AFMEPKIU seeks to give itself not only exclusive coverage of all employees employed in public hospitals eligible to be members of the AWU, but also to exclude the AWU from representing any employees employed by or at public hospitals, including employees eligible to be members of the CFMEU, ETU and PGEU. 21 The effect of granting the AFMEPKIU's application would be to: (a) exclude the AWU from representing any employee employed in a public hospital who is eligible to be a member of the AWU and to give the AFMEPKIU exclusive representation rights in respect of that class of employee; (b) exclude the AWU from representing any employee employed by or at a public hospital thereby protecting the interests of the CFMEU in respect of such employees as carpenters, the ETU in respect of such employees as electricians and the PGEU in respect of such employees as plumbers. 22 There is one complication, however. The AWU has coverage of electrical fitters and electrical mechanics, whereas the AFMEPKIU does not. If I were to grant the AFMEPKIU's application it would give that organisation coverage of electrical fitters and electrical mechanics in public hospitals. As I understand it, and given the avowed close working relationship between the AFMEPKIU and ETU under the Award, this was not the intent of the application. 23 It is apparent that there is considerable overlap in the constitutional coverage of the AWU and the AFMEPKIU. For example, having regard to the terms of the Award and, in particular, cl 2 Definitions, on the face of what is contained in the respective eligibility rules, the classes of employees that are eligible to be members of both the AFMEPKIU and AWU, are as follows: · Fitter; · Motor Mechanic; · Mechanical Tradesperson - Special Class; · Scientific Instrument Maker; · Toolmaker. 24 The AFMEPKIU also seeks exclusive coverage of apprentices to the foregoing trades and trades assistants. Both organisations have coverage of these class of employees, although it is noted that apprentices and trades assistants are not covered by the Public Hospital Employees Skilled Trades (State) Award. If an order were to be made in favour of the AFMEPKIU in relation to employees under the Award, it would be appropriate, in my view, that an order to the same effect be made in respect of apprentices and trades assistants. 25 As I have already sought to explain, the AFMEPKIU's application goes much further than seeking an order that it is to have the right, to the exclusion of the AWU, to represent employees employed in hospitals who are eligible to be members of the AWU and who are also eligible to be members of the AFMEPKIU. In other words, the AFMEPKIU's application goes beyond seeking coverage of employees who are eligible to be members of both organisations, which is the type of order contemplated by s 295(1)(a) of the Act. 26 What I am being asked to do is to make an order that may involve giving the AFMEPKIU exclusive representation rights in respect of employees who may or may not be eligible to be members of the AFMEPKIU. I say "may" because the evidence does not show the full extent to which there are employees employed in hospitals who are eligible to be members of the AWU, but who are not eligible to be members of the AFMEPKIU. Additionally, the AFMEPKIU seeks to exclude the AWU from representing any employees employed by or at public hospitals. The question arises as to whether I have the power to make such orders. 27 It can be seen that ss 294 and 295 provide the Commission with a very wide and general discretion as to the form of any order it may make in determining any demarcation question (see NUW v TWU ). It seems to me there is no statutory prohibition against the making of the orders sought by the AFMEPKIU. Certainly, the AWU did not contend an absence of power to make the orders sought. Nevertheless, I consider that the orders sought by the AFMEPKIU, if I were minded to make orders in the AFMEPKIU's favour, go beyond anything that is reasonably justifiable on the cases presented. The AFMEPKIU's case was essentially about coverage of employees under the Public Hospital Employees Skilled Trades (State) Award and not employees in hospitals, other than trades assistants and apprentices, that might be eligible to be members of the AWU who are covered by other awards. Furthermore, the case put by the four existing union parties to the Award relied heavily on the contention that a fifth union party was undesirable and unwarranted given the stable industrial relations environment and level of cooperation amongst the AFMEPKIU, ETU, CFMEU and PGEU in relation to Award matters. Nothing was put to me regarding representation of employees not covered by the Award other than trades assistants and apprentices. In those circumstances, and for the reasons expressed later in this Decision, the form of the orders I am prepared to consider are as follows: 1. The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch is to have the right, to the exclusion of The Australian Workers' Union, New South Wales, to represent under the Industrial Relations Act 1996 the industrial interests of the following classes or groups of employees: (a) Employees employed under the terms of the Public Hospital Employees Skilled Trades (State) Award who are eligible to be members of the AWU except electrical fitters and electrical mechanics; (b) Trades assistants employed in public hospitals who assist employees described in sub-par (a) hereof and who are eligible to be members of the AWU; (c) Apprentices employed in public hospitals who are apprenticed to any of the trades in which employees described in sub-par (a) hereof are employed and who are eligible to be members of the AWU. 3. The Australian Workers' Union, New South Wales is not to have the right to represent under the Industrial Relations Act 1996, the industrial interests of the following classes or groups of employees: (a) Employees employed under the terms of the Public Hospital Employees Skilled Trades (State) Award who are eligible to be members of the AFMEPKIU, CFMEU, ETU and PGEU; (b) Trades assistants employed in public hospitals who assist employees described in sub-par (a) hereof and who are eligible to be members of one or more of the aforementioned unions; (c) Apprentices employed in public hospitals who are apprenticed to any of the trades in which employees described in sub-par (a) hereof are employed and who are eligible to be members of one or more of the aforementioned unions. 28 Given that I am prepared to consider the form of orders set out in the preceding paragraph, it is obvious that a consideration limited to the constitutional coverage of the competing unions would not resolve the matters before me. It then becomes necessary to consider other matters in order to determine the application. History of Industrial Coverage and Representation 29 There was evidence from both the AWU and AFMEPKIU as to their coverage of employees under the Award over a period of time. The AWU called a number of witnesses, namely: · Kevin Maher, State President of the AWU and Secretary of the Newcastle and Northern Regions Branch of the AWU; · James Bridge, former Sub-branch Secretary of the ASE, Newcastle and Northern Regions Branch; · Barry Cook, Fitter and member of the AWU, employed at Manning Base Hospital; · Allan Asquith, Electrician and member of the AWU, employed at Manning Base Hospital; · Andy McDonald, leading hand Fitter and member of the AWU employed at Sutherland Hospital; · Nathan Rudd, Industrial Officer for the AWU. 30 The evidence called by the AWU went to support its contention that it had members employed in various hospitals in NSW under the Award since at least as early as 1981 and that since that time had serviced those members. The evidence from AWU members was that they were satisfied with the service they received from the AWU and that officials of the AWU were readily accessible to assist them with any industrial problems. 31 Other evidence from the AWU included that: · there had never been any serious demarcation issues between the AWU and other unions under the Award; · that the AWU was better resourced than most other unions to service members in regional areas; · that there was no consultation and no attempt at consultation, with the AWU by any of the other unions party to the Award at the time it was negotiated in 1998; · the AWU has about 18 members covered by the Award. 32 The AFMEPKIU called the following witnesses: · Brian Beer, State President of the AFMEPKIU; · Brad Stewart, Organiser with the AFMEPKIU based in the Union's Newcastle office; · Neville Richardson, Organiser with the AFMEPKIU, who had responsibility for organising/servicing members in Sydney metropolitan hospitals. 33 The evidence from the AFMEPKIU may be summarised as follows: · Until six months ago, activity by the AWU under the Award was negligible; · The membership of the AWU of employees covered by the Award was nil or virtually nil; · The AFMEPKIU was better or equally resourced than the AWU to service members in regional areas; · There has never been any demarcation disputes between the AWU and AFMEPKIU under the Award; · If the AWU was made a party to the Award there would be competition for membership amongst the AWU, AFMEPKIU and ETU; · AFMEPKIU membership in public hospitals was about 100. 34 The CFMEU called Andrew Ferguson, State Secretary of the CFMEU and Graham Childs, Organiser for that Union to give evidence. Mr Ferguson's evidence was that: · the CFMEU provides a full range of services to members covered by the Award; · The CFMEU has one Organiser, Mr Childs, dedicated to servicing members employed in public hospitals in the Sydney metropolitan area. Regional offices of the CFMEU service members employed in regional areas; · The CFMEU, AFMEPKIU, ETU and PGEU participate extensively in the negotiation of wages and working conditions; · The CFMEU, AFMEPKIU, ETU and PEGU take responsibility in turn for maintaining the Award; · The AWU has not been involved or sought to be involved with industrial relations issues under the Award until it made the application in these proceedings. 35 Mr Childs' evidence was that: · The CFMEU has approximately 200 members located primarily in hospitals across New South Wales; · The CFMEU, AFMEPKIU, ETU and PGEU participate extensively in the negotiation of wages and working conditions; · Responsibility for coordinating negotiations over wages and working conditions is rotated amongst the four unions on an annual basis; · The CFMEU, AFMEPKIU, ETU and PGEU take responsibility in turn for maintaining the Award; · The AWU has not been involved or sought to be involved with industrial relations issues under the Award until it made the application in these proceedings. 36 Bernard Henry King, Senior Employee Relations Officer, gave evidence for the HAC. He had been involved in negotiations relating to the Award since 1995. He said that the AWU had not participated in any Award negotiations in the period 1995-2001 save for discussions in late 1999 relating to the AWU wishing to become a party to the Award. Mr King said he had observed that the AFMEPKIU, ETU, CFMEU and PGEU worked closely in cooperation with each other on Award matters and that "commonly one of the four takes up the representations in rural locations in respect of all the trades staff at a particular rural location." Mr King expressed the opinion that employees under the Award were adequately represented by the CFMEU, AFMEPKIU, PGEU and ETU and that the occupational classifications in the Award were all covered by these four unions. In relation to the negotiation of the 1998 Award, Mr King said these extended over a period of about 15 months. Mr King said that in his opinion, if another union were made party to the Award it "would bring significant problems from the Department of Health's perspective in negotiating through issues and resolving issues with unions. To begin with, the four unions we are negotiating with now enjoy power of veto because they have equal status to each other. By adding a fifth, you raise the distinct possibility or you increase the chances that you cannot get all five to agree". Mr King went on to say: With such a small number of members I would fear that the AWU would not be able to resource award negotiating rounds and complex reform issues, and that then we would be required to seek approval from that fifth union who in reality may have had very little or no role in negotiating the position. History of Award Coverage 37 I have already largely dealt with this question. It is clear from the evidence that the AWU (or its predecessor, the ASE) was a party to the Award from at least 1980 until the making of the 1998 Award. The CFMEU, AFMEPKIU, ETU and PGEU or their relevant predecessors, were also party to the Award in 1980 and have remained so ever since. The evidence would suggest that the AWU was never a major player when it came to representing the interests of employees in relation to wages and employment conditions under the Award. This is perhaps the reason why the AWU was not aware of the negotiations over wages and working conditions in 1997 leading to the making of the 1998 Award. In other words, having such a small membership under the Award, with no particular official responsible for servicing the Award in contrast with the AFMEPKIU and CFMEU, the AWU simply was not aware of moves to negotiate a new Award. 38 There was some suggestion by the AWU in the proceedings that its failure to be aware of negotiations for a new Award was due to a conspiracy involving the HAC and other unions against the AWU. However, there was no evidence to support this theory. Wishes of Employees Affected 39 The evidence of Messrs Cook, Asquith and McDonald would indicate that at least these three members of the AWU were quite satisfied with the service they were receiving from their union and they clearly supported the AWU being made a party to the Award in order that the service they had become used to, would continue. 40 Of the 18 members which the AWU stated it had under the Award, it would appear that at least six of them are to be found at Manning Base Hospital. These employees joined the AWU, it appears, because the AWU maintained an office in Taree and the local Organiser for the AWU, Mr Tate, signed the employees as members, not only because the employees wanted to become members of a union but also because Mr Tate had the advantage of being local and was able to enrol the employees before there were any approaches by other unions. Mr McDonald, a leading hand Fitter at Sutherland Hospital, had been a member of the ASE since 1969 and as a consequence of amalgamations he eventually found himself as a member of the AWU. He remained loyal to the AWU because of the good service he received from that Union. 41 I take the evidence of Messrs McDonald, Cook and Asquith at its highest, that is to say that their views favouring the AWU being made a party to the Award are representative of all AWU members under the Award. The opinion of employees concerned in the determination by the Commission of a demarcation issue is a most relevant consideration to be taken into account; it cannot, however, be decisive: Federated Ironworkers Association of Australia, New South Wales Division v Transport Workers Union of Australia, New South Wales Branch (1998) 78 IR 123 at 127. In Re Australian Workers' Union, NSW Branch [1983] AR (NSW) 400; (1983) 4 IR 404, the Commission in Court Session declined to follow the views of employees expressed in a ballot as to the desired union to represent them. The Court Session said at 413: Normally we would be prepared to accord substantial weight to any freely held views of the body of employees affected. There are substantial pragmatic reasons why this should be so. We take this aspect into account but with the very clear reservations, earlier expressed, in mind. One or two aspects were suggested in the evidence as influencing the choice of employees. They are neither explanatory nor compelling. We think that both unions are to be regarded as capable and likely to cater adequately for the interests of the employees, with no elements of substance to choose one against the other, if such a choice were the only criterion. This is something we are satisfied the employees will, in a reasonable and common sense way, accept whatever the final outcome of these applications. The Attitude of the Employer 42 The HAC made its position very clear: It was satisfied with the existing situation whereby four unions covered the employees concerned and they did so in a cooperative way. The HAC was opposed to the introduction of a fifth union, regarding it as a threat to the existing, stable industrial relations environment. The State of Industrial Relations 43 The evidence indicated a stable, cooperative industrial relations environment under the Award. Mr King gave evidence that the level and quality of cooperation amongst the AFMEPKIU, PGEU, ETU and CFMEU was beneficial and facilitated the Award negotiations. Mr King expressed concern at the prospect of introducing a fifth union and felt that it would only lead to disharmony and perhaps disputation. Multiple Union Coverage 44 Whilst it has been the subject of exception, it has been a basic principle over many years that "it is undesirable to have more than one union representing the interests of employees in a particular industry": see Public Service Association v Federated Clerks Union [1953] AR (NSW) 570; Re The Federated Engine Drivers and Firemen's Association of Australasia (NSW) v Federated Liquor and Allied Industries Employees' Union of Australia, New South Wales Branch [1983] AR (NSW) 889 at 898; (1983) 6 IR 304 at 305 ( Brewing Industry Demarcation Case) . 45 The exceptions to this general rule have arisen out of practical considerations and the need to meet changing circumstances: see for example, the Brewing Industry Demarcation Case. I do not consider that there are any practical considerations in the present case that would weigh in favour of the AWU but that has to be considered against the need to produce a fair and just outcome. Findings and Conclusion 46 I make the following findings: 1. The application by the AWU to vary the Public Hospital Employees Skilled Trades (State) Award to become a party to the Award is in itself unexceptional. However, the application has to be judged against the competing application of the AFMEPKIU under s 295 of the Industrial Relations Act 1996. 2. The AFMEPKIU has constitutional coverage of employees employed under Public Hospital Employees Skilled Trades (State) Award who are eligible to be members of the AWU, with the exception of electrical fitters and electrical mechanics. 3. Both the AWU and AFMEPKIU (with the exception of electrical fitters and electrical mechanics) have constitutional coverage over apprentices and trades assistants associated with the trades covered by the Public Hospital Employees Skilled Trades (State) Award where the employees employed in such trades are eligible to be members of the AWU. 4. The classes of employees covered by the Public Hospital Skilled Trades (State) Award are eligible for membership of one or more of the four unions which are parties to that Award. 5. The AWU has only a small membership employed under the Public Hospital Employees Skilled Trades (State) Award compared to the AFMEPKIU and CFMEU. About one third of the AWU's 18 members under the Award are employed in one hospital. 6. The AWU has serviced members under the Award since about 1981 but it has never been a major player in Award negotiations. 7. The AWU was a party to the Public Hospital Employees Skilled Trades (State) Award since 1980 until the making of the 1998 Award. The AWU did not become aware of the fact that it was no longer a party to the Award until May 1999, some 14 months after the Award was made by Maidment J. 8. Some 29 months elapsed between the time the CFMEU made application for a new Award and the time the AWU became aware that it was no longer a party to the Award. During that time the AWU had no knowledge of, and did not participate in, any matter associated with the Award. 9. Employees, members of the AWU employed under the Public Hospital Employees Skilled Trades (State) Award, have expressed support for the AWU's application and for continuing membership of the AWU. The preferences of employees is an important consideration but not decisive in determining a demarcation question. 10 The employer expressed opposition to the AWU being made a party to the Award because it may create disharmony amongst the unions and lead to industrial disputes. The attitude of the employer is an important consideration. 11. The industrial relations environment under the Award was stable, with the CFMEU, AFMEPKIU, ETU and PGEU acting in a cooperative manner which the employer regarded as beneficial and which contributed to the stable environment. 12. It would not be appropriate, in the circumstances, to give the AFMEPKIU exclusive coverage of employees who are employed under the Award and who are eligible to be members of the AWU and to leave the AWU to cover employees eligible to be members of the ETU, PGEU and CFMEU but not eligible to be members of the AFMEPKIU. To do so would create disharmony and probably disputation over union membership. 13. It is undesirable to have more than one union representing the interests of employees in a particular industry unless there are practical considerations that justify an exception to this general rule. In the present case there are no circumstances warranting a departure from the general rule. 47 Based on these findings I have come to the conclusion that the AWU's application should be dismissed and that the AFMEPKIU should have the right, to the exclusion of the AWU, to represent the industrial interests of those classes of employees employed under the terms of the Public Hospital Employees Skilled Trades (State) Award, together with trades assistants and apprentices employed in public hospitals, who are eligible to be members of the AWU with the exception of electricians. I have also reached the conclusion that The Australian Workers' Union, New South Wales is not to have the right to represent the interests of employees employed under the terms of the Public Hospital Employees Skilled Trades (State) Award who are eligible to be members of the AFMEPKIU, CFMEU, PGEU or ETU, or trades assistants and apprentices associated with the trades covered by these four unions under the Award. 48 In coming to this conclusion I have had particular regard to the fact that employees employed under the Award can more than adequately be represented by the existing union parties, which are well resourced organisations with a long and continuous history of activity on behalf of their members in public hospitals. The capacity of these unions to represent employees extends to regional areas of New South Wales. There is no benefit or advantage in re-introducing another organisation covering the same classes of employees employed in public hospitals. The industrial relations environment is stable and there is a high level of cooperation amongst the existing union parties to the Award. The employer does not want to have to deal with a fifth union in relation to Award matters and understandably so given its satisfaction with the existing industrial relations environment and level of cooperation amongst the four unions who are party to the Award. 49 That such a long period of time elapsed before the AWU became aware that it was no longer a party to the Award is testimony to the low level of interest and participation of that organisation in matters associated with the Award. Orders 50 I make the following orders: 1. The application in Matter No. IRC 380 of 2000 is dismissed. 2. The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch is to have the right, to the exclusion of The Australian Workers' Union, New South Wales, to represent under the Industrial Relations Act 1996 the industrial interests of the following classes or groups of employees: (a) Employees employed under the terms of the Public Hospital Employees Skilled Trades (State) Award who are eligible to be members of the AWU, except electrical fitters and electrical mechanics; (b) Trades assistants employed in public hospitals who assist employees described in sub-par (a) hereof and who are eligible to be members of the AWU; (c) Apprentices employed in public hospitals who are apprenticed to any of the trades in which employees described in sub-par (a) hereof are employed and who are eligible to be members of the AWU. 3. The Australian Workers' Union, New South Wales is not to have the right to represent under the Industrial Relations Act 1996, the industrial interests of the following classes or groups of employees: (a) Employees employed under the terms of the Public Hospital Employees, Skilled Trades (State) Award who are eligible to be members of the Automotive, Food, Metals, Engineering Printing and Kindred Industries Union, New South Wales Branch or the Construction, Forestry Mining and Energy Union, New South Wales Branch or the New South Wales Plumbers and Gasfitters Employees' Union, or the Electrical Trades Union of Australia, New South Wales Branch; (b) Trades assistants employed in public hospitals who assist employees described in sub-par (a) hereof and who are eligible to be members of one or more of the aforementioned organisations of employees; (c) Apprentices employed in public hospitals who are apprenticed to any of the trades in which employees described in sub-par (a) hereof are employed and who are eligible to be members of one or more of the aforementioned organisations of employees. 4. The foregoing orders shall take effect on and from 19 March, 2001. 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.