Industrial Relations Commission of New South Wales CITATION: Crown Employees (National Parks and Wildlife Service) Field Officers and Skilled Trades 2000 Award [2006] NSWIRComm 278 APPLICANT: Public Employment Office PARTIES: RESPONDENTS: The Australian Workers' Union, New South Wales Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales FILE NUMBER(S): IRC 6781 of 2005; IRC 2647 of 2006 CORAM: Wright J President; Walton J Vice-President; Macdonald C CATCHWORDS: Application for an award - Standing of PSA - Related application - Potential demarcation issues - Conciliation - Demarcation application to receive priority ahead of award proceedings - Directions. HEARING DATES: 27/07/2006 DATE OF JUDGMENT: 09/04/2006 APPLICANT: Mr A Searle Ms E Krynda, The Department of Environment and Conservation (NSW) RESPONDENTS: LEGAL REPRESENTATIVES: Mr R Tripodi Mr J Clements The Australian Workers' Union, NSW Mr A Hatcher Solicitor: Ms A McRobert Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President MACDONALD C Monday 4 September 2006 Matter No IRC 6781 of 2005 CROWN EMPLOYEES (NATIONAL PARKS AND WILDLIFE SERVICE) FIELD OFFICERS AND SKILLED TRADES 2000 AWARD Application by Public Employment Office on behalf of the Department of Environment and Conservation (NSW) for new award Matter No IRC 2647 of 2006 CROWN EMPLOYEES (NATIONAL PARKS AND WILDLIFE SERVICE) FIELD OFFICERS AND SKILLED TRADES 2000 AWARD Application by the Australian Workers Union, New South Wales for variation re clause 3A demarcation DECISION OF THE COMMISSION [2006] NSWIRComm 278 1 The Public Employment Office ("the PEO") filed an application on 22 December 2005 in IRC Matter No 6781 of 2005 which sought to create a new award by consent to be known as the Crown Employees (National Parks and Wildlife Service) Field Officers and Skilled Trades 2005 Award ("the Award") to replace the Crown Employees (National Parks and Wildlife Service) Field Officers and Skilled Trades 2000 Award pursuant to s 17 Industrial Relations Act 1996 ("the Act"). The effect of the application is to vary the award by increases in salary and enhanced leave conditions in accordance with a negotiated settlement between the parties. 2 At the first hearing date, the Public Service Association ("the PSA"), which is not a respondent to the PEO's application, signified its intention to oppose the application on the basis that two awards apply to field officers employed in the National Parks and Wildlife Service (which is now incorporated into the Department of Environment and Conservation): the Award, and the Crown Employees (National Parks and Wildlife Service) Conditions of Employment 2000 Award ("the PSA Award"). According to the PSA, the variation would introduce different rates of pay between the two awards for field officers performing the same work. The PEO and the Australian Workers' Union, New South Wales Branch ("the AWU"), a respondent to the application in IRC Matter No 6781 of 2005, contest the PSA's standing to oppose the application, and contend that the consent between the PEO and the AWU forms a proper basis for the establishment of the new rates of pay and conditions. 3 The AWU filed an application on 6 July 2006 in IRC Matter No 2647 of 2006 to vary the Award to clarify the area, incidence and duration of the Award and to insert a demarcation clause reflecting what it described as a historical demarcation agreement between the AWU and the PSA concerning field officers employed by the National Parks and Wildlife Service. This application is also opposed by the PSA. 4 Following a Notice of Motion filed by the AWU, both matters were referred to a Full Bench pursuant to s 193 of the Act. At the directions hearing on 27 July 2006, the Commission directed the parties to file written submissions on the following issues: 1. The issue of the joinder of the applications. 2. The procedure to deal with the issue of the parties' status and standing. 3. The substantive submissions in that respect, namely as to parties' status and standing of the PSA in the proceedings. 4. As to the issue of any potential demarcation issue or dispute in the proceedings and as to what procedures should be adopted to decide such issues. 5. The basis for the respective award models and any merit arguments for their adoption or retention. 5 In addition, the Commission made an interim award consonant with the PEO's application, adjusting the applicable rates of pay by 4 per cent, to commence in the first pay period after 1 July 2006. 6 In response to the directions, the AWU made the following key submissions: (a) it now seeks demarcation orders pursuant to ss 294 and 295 of the Act that the AWU have the right, to the exclusion of the PSA, to represent under the Act the industrial interests of all field officers employed by the Department of Environment and Conservation and eligible for membership of the AWU; and (b) it no longer presses its application in IRC matter number 2647 of 2006. 7 In the light of the AWU's submissions concerning demarcation orders (and in the light of the course we propose to adopt), we consider that it is appropriate to grant leave to discontinue the application in IRC Matter No 2647 of 2006 and we grant the AWU leave to do so. 8 There was an active contest as to whether the PSA should be treated as a party to the proceedings or, alternatively, granted leave to intervene. Save for the potential for demarcation proceedings, we would have been disposed to resolve this by granting the PSA full rights of intervention to prosecute its opposition to the consent award proposed by the PEO and the AWU without determining its status as a party. This is because the PSA had demonstrated sufficient interest to warrant the grant of intervention rights and the PEO's application, in essence, concerned the making of a new award and it would have been appropriate, therefore, to decide the status of the PSA as a party at that juncture. 9 However, those considerations have been superseded by the AWU's contention that demarcation proceedings should be brought either by the Commission on its own motion or upon the AWU's application. In our view, demarcation proceedings should necessarily precede the Award proceedings as they have the potential to resolve the representational interests with respect to the group of employees the subject of the contested award, and potentially differences as to the appropriate terms of any award. 10 We consider that the most appropriate course is for the AWU to file the demarcation application so that the scope of relief sought can be properly defined and we direct it to do so within 14 days of the date of this decision. We further grant leave to the PSA to file any cross-application concerning demarcation issues within the same period of time. 11 In the meantime, the application in IRC Matter No 6781 of 2005 is stood over to be listed for directions in conjunction with the anticipated demarcation proceedings. _________________________ 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.