Industrial Relations Commission of New South Wales CITATION: Transport Workers' Union of New South Wales v. National Union of Workers [2005] NSWIRComm 1088 APPLICANT Transport Workers' Union of New South Wales PARTIES: RESPONDENT National Union of Workers FILE NUMBER(S): 1424 of 2005 CORAM: Connor C application for demarcation order - status of proceedings - whether there is an obligation to conciliate a matter when such a function would constitute a futility - industrial dispute CATCHWORDS: Industrial Relations Act 1996 LEGISLATION CITED: Sugar Manufacturers Case (1926) AR 113 CASES CITED: HEARING DATES: 06/07/2005 EXTEMPORE JUDGMENT DATE : 06/07/2005 APPLICANT Adam Hatcher Counsel LEGAL REPRESENTATIVES: RESPONDENT Robert Reitano Counsel DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Tuesday, 7 June, 2005 Matter No IRC 1424 of 2005 Transport Workers' Union of New South Wales and National Union of Workers Application for demarcation order under S.294 of the Industrial Relations Act, 1996 INTERLOCUTORY DECISION [2005] NSWIRComm 1088 1 This threshold decision concerns a fine point relating to the construction of the 1996 Industrial Relations Act and my obligations under it. In particular, it is directed to my responsibility to conciliate an issue before me - an application by the Transport Workers' Union of New South Wales under Part 6, Demarcation Orders, of Chapter 5, Regulation of Industrial Organisations (Other than State Organisations) [Ss.294 and 295], of the 1996 Industrial Relations Act for a demarcation order. 2 The Chapter 5 application relates to the work of employees of National Foods Limited at its site in Castlereagh Road, Penrith and Australian Co-operative Foods Limited at its site in Victoria Street, Wetherill Park. As I understand the position, those employees have been historically covered by the Transport Industry - Milk Treatment &c and Distribution (State) Award. Currently the National Foods employees are covered by an enterprise agreement - the National Foods Milk Limited Penrith Operations Agreement - and the Dairy Farmers employees are covered by an State enterprise award - the Dairy Farmers TWU Enterprise Award. The National Union of Workers has expressed an interest to cover the employees and has apparently done so. 3 The matter came before me for mention on Thursday, 14 April, 2005. It was adjourned for mention on Monday, 2 May, 2005 and Wednesday, 18 May, 2005. In the meantime efforts have been made under the auspices of Unions New South Wales (formerly the New South Wales Labor Council) to resolve the issue. Ultimately, I set the matter down for a conference on Tuesday, 7 June, 2005 at the request of the NUW. In the proceedings Mr Hatcher represented the TWU and Mr Reitano represented the NUW. Mr Lennon, representing Unions New South Wales, intervened in the proceedings. 4 The proceedings commenced and I immediately withdrew to permit the TWU, the NUW and Unions New South Wales, to confer. When the matter resumed before me Mr Lennon informed me that the matter remained in dispute between the parties. He sought, and was granted, leave to withdraw from the proceedings. Mr Hatcher then sought that I should programme the matter for hearing, indicating that in his view conciliation before me would be a futility. Mr Reitano argued that I should conciliate on the matter but, in the light of Mr Hatcher's comments and the impression I had formed that a compromise position was not achievable, it seems to me that to do so would be a waste of time for all concerned and that the matter should simply be programmed for hearing. Nevertheless, Mr Reitano argued that, as a matter of policy, there was an obligation on me to conciliate all matters that come before me, including applications concerning demarcation orders mounted under Chapter 5. Moreover, Mr Reitano has suggested in his submissions that, to some extent, I had already conciliated the issue because of directions I had made in the matter. 5 Of course, it is a long established policy of the Commission and its predecessors that the process of conciliation be exhausted before an arbitrated decision is made. For instance, in the Sugar Manufacturers Case (1926) AR 113 the important role of conciliation, and its precedence over arbitration, was explained (at p.115) in the following terms: "...The scheme of all our Industrial Arbitration Acts is that conciliation should be tried as far as possible, but that in the last resort, if conciliation fails, there shall be some compulsory authority which will deal with matters in dispute - matters that are claimed, claims that are rejected - by the method of arbitration..." 6 Certainly, the 1996 Act has reflected those views. For instance, as far as applications for unfair dismissals under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] are concerned, S.86 confirms the primacy of conciliation over arbitration, viz: "The Commission must endeavour, by all means it considers proper and necessary, to settle the applicant's claim by conciliation." And S.135(1), dealing generally with industrial disputes, provides as follows: "The Commission is to deal with an industrial dispute by arbitration only if it is not resolved by conciliation." S.135(2) goes so far as to insist that before arbitration may proceed, a certificate of attempted conciliation must be issued and lodged in the prescribed manner. 7 For matters under Part 2, Contract Determinations, of Chapter 6, Public Vehicles and Carriers [Ss.311 to 321] there is a similar obligation on the Commission to hold a conference for conciliation by virtue of S.315(1), viz: "When application is made to the Commission to exercise its jurisdiction under this Part, the Commission must, before it considers the application, summon to attend and confer with the Commission the applicant and such other persons served with the application as the Commission may direct." The first function under S.315(1) is therefore confined - to "confer", ie act as a conciliator. 8 But, in my opinion, the very fact that the obligation to confer is spelled out (in slightly different terms) in those separate sections of the 1996 Act suggests to me that there is not a general obligation on members of the Commission to conciliate in all issues which come before them by way of application, especially when it so obviously would be a futility in this case. That is Mr Reitano's argument and, in my opinion, it must fail. The TWU application seeks an order: it does not seek conciliation. It is its right not to compromise its claim in conciliation. And it would take both sides to constructively conciliate on the matter. In the light of Mr Hatcher's submissions, I do not propose to embark on a fruitless exercise. 9 For demarcation orders, S.294(1) reads as follows: "The Commission may, by its order, determine any question as to the demarcation of the industrial interests of industrial organisations of employees." The wording of S.294(1) does not suggest conciliation to me. It suggests that the parties are entitled to an order which demarks the work between them - nothing more nor less. I believe that the provisions for demarcation orders in Chapter 5 should be considered in isolation. They stand alone. To my mind, it would be wrong to import into proceedings under Chapter 5 for demarcation orders, requirements of other sections of the 1996 Act. 10 Mr Hatcher and Mr Reitano both agree that the demarcation of work may constitute an "industrial matter" as defined in S.6 and any dispute flowing from the demarcation of work would be categorised as an "industrial" dispute. In my opinion, that does not mean that the dispute is an industrial dispute for the purposes of S.130 proceedings. And consequently it is incorrect to bring into play the obligations to conciliate prescribed by Ss.135(1) and 2 in Chapter 5 proceedings. 11 At this time, I do not believe that I have made any real directions in these proceedings. I have simply allocated time for the proceedings before me and attempted to accommodate the parties and Unions New South Wales in setting times aside for those proceedings. In any event, I do not consider that any directions I have made bring this matter into conciliation already, as Mr Reitano has suggested. In fact, it is more likely, in my opinion, that directions that may be made in the conduct of proceedings take those proceeding into arbitration. Certainly, the fact that there is already an argument over the actual status of the proceedings between Mr Hatcher and Mr Reitano leads me to the conclusion that I have already crossed the Rubicon and entered the arbitration phase of the matter. 12 Simply put, whilst the scheme of the 1996 Act directs conciliation as a prerequisite to some matters proceeding - in Ss.86, 135 and 315(1) - because such a direction is not contained in Chapter 5, it must follow that I am not under any obligation to conciliate - expressio unius est exclusio alteris - and I have not done so. If Mr Hatcher informs me that the TWU is not willing to compromise its claim, I must respect that position and I do not propose to embark on a futility. 13 I propose to adjourn these proceedings for mention on Tuesday, 14 June, 2005 to programme the matter for determination. P J CONNOR Commissioner 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.