TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.65A application for determination of award interest

Australian Education Union,
Tasmanian Branch
(T.5142 of 1994)

CLERICAL EMPLOYEES AWARD

Award interest - membership in related award not proven - interest refused

REASONS FOR DECISION

This matter concerns a reference pursuant to Section 65A(2) of the Industrial Relations Act 1984, as amended, in which the Australian Education Union, Tasmanian Branch (AEU) sought an interest in the Clerical Employees Award.

The Act provides in 65A that, inter alia:

"(2)  The President shall, on receipt of an application under subsection (1), refer it to a Commissioner sitting alone for the purpose of his making a determination under subsection (3).

(3)   Where, pursuant to subsection (2), an application is referred to a Commissioner, the Commissioner shall, subject to subsection (4), determine, as the case requires, whether the organization to which the application relates no longer has an interest in an award specified in its certificate of registration or has an interest in an award not so specified.

(4)   Before making a determination under subsection (3), a Commissioner shall give the applicant for the determination and the organizations having an interest in the award concerned an opportunity to be heard on the matter.

(5)   A Commissioner shall take into account such matters specified in section 63 (10) (c) as are relevant to the making of a determination by him under subsection (3)."

Consistent with the requirements of 65A(4) of the Act a hearing was held on 8 August 1994 and the State Public Services Federation Tasmania (SPSF) which has a registered interest in the Clerical Employees Award and the AEU requested an adjournment to enable them to enter into private discussion and negotiation with a view to resolving the question of award interest to their mutual satisfaction. As a consequence an adjournment was granted.

When the hearing resumed on 4 May 1995 it was reported that despite attempts by the parties to resolve the issue the granting of an interest to the AEU in the Clerical Employees Award was opposed by the SPSF. The Commission was therefore called upon to hear argument and take evidence to determine whether or not a case could be established for the granting of interest in accordance with the requirements of the Act, and more specifically Section 63(10)(c) which provides as follows:

(c)   that Commissioner shall determine which awards the organization has an interest in by satisfying himself that -

(i)  the membership of the organization consists of or includes members who are employers or employees in the industry or occupation to which the awards stated in its application pursuant to subsection (1) (a) (vii) relate or who are State employees to whom those awards relate;

(ii)  that membership is consistent with the organization's rules or constitution a copy of which has been lodged with the Registrar pursuant to subsection (1); and

(iii)  the organization being granted an interest in an award or awards would not prejudice the orderly conduct of industrial relations in Tasmania."

The requirement of the Act is clearly that the Commission must be satisfied on all three of the criteria specified in 63(10)(c) before granting award interest to a registered organisation which has made application to the Registrar in this regard. It follows that the onus of satisfying the Commission is on the applicant and if any one of the mandatory criteria is not proven to the Commission's satisfaction then the application for interest must fail.

The case presented to the Commission in relation to 63(10)(c) relied principally upon:

(a)   Eleven signed (unsworn) statements headed:

"Re: Union Membership/Award coverage"

and stating that:

"I am currently a financial member of the Tasmanian TAFE Staff Society employed at .......... in the position of .........."

and:

"The position I hold is subject to the terms and conditions of the Clerical Employees Award .........."

All of the statements produced had been signed and dated in June 1993, and of those which were complete as to detail and legible the persons concerned were said to have been employed at that time in the capacity of Associate Directors of TAFE Institutes and were covered by the Clerical Employees Award.

(b)   A statement from the AEU advocate that there were twenty members who were Adult Education Officers. Other classifications were also singled out for mention as being members who were employed to work in TAFE institutions.

(c)   A list of alleged members of the AEU together with a statutory declaration dated 2 May 1995 which declared:

"that the attached document is a list of TAFE Division members of the Australian Education Union, Tasmanian Branch extracted on 2 May 1995."

(d)   Whilst the list which was submitted showed the name, identity [number], and location of persons it did not provide details as to classification occupied nor the relevant award coverage. However reliance was placed upon the fact that some names on the list corresponded to the names of Associate Directors who had signed individual statements in June 1993.

(e)  Copies of correspondence purporting to show that persons classified as Associate Directors previously covered by the TAFE Award were to be covered by the Clerical Employees Award.

(f)  A "position description" relating to the classification of Adult Education Officers employed in the Institute of Adult Education and covered by the Clerical Award [sic].

The AEU case in this regard relied upon signed statements which were dated in June 1993, i.e. before the AEU gained registration with this Commission.

I am of the view that in such a vitally important and often contentious issue as union membership the Commission is entitled to the best evidence available and I would regard the starting point to be the production for inspection of completed and signed membership cards as the best evidence of persons having joined the organisation. This then would need to be supported by proper proof of current financial status of members whose cards were produced.

Even if I were to accept the statements produced at face value, which I do not, they were signed by persons who said they were members of another organisation, i.e. the Tasmanian TAFE Staff Society, an organisation whose registration was cancelled by the Registrar of the Tasmanian Industrial Commission on 19 October 1993 in matter TR457 of 1993 and was effective from 14 October 1993.

I was shown nothing which would prove that the persons who regarded themselves as members of the Tasmanian TAFE Staff Society in 1993 could now properly be regarded as members of the AEU by virtue of its rules after that organisation gained registration with the Commission on 14 October 1993.

The statutory declaration provided (Exhibit E4) may reflect the views genuinely held by its author that the names on the attachment to it was a list of TAFE Division members of the Australian Education Union, Tasmanian Branch extracted on 2 May 1995 because a computer told him so, but the list may represent a number of different things, such as simply a list of persons making payments to an organisation even though they are not legally members.

Having found that the applicant in this matter has not adequately satisfied the requirements of Section 63(10)(c)(i) of the Act at this time interest in the Clerical Employees Award is refused, and I so decide.

A. Robinson
DEPUTY PRESIDENT

Appearances:
Mr N. Evans and Mr C. Lane for the Australian Education Union, Tasmanian Branch.
Ms S. Strugnell with Mr G. Vines and Ms J. Nicholson for The State Public Services Federation Tasmania.

Date and Place of Hearing:
1994.
Hobart:
August 8
1995.
Hobart:
May 4