Department of Justice

Tasmanian Industrial Commission
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TP1/31 and TP1/38



Industrial Relations Act 1984


TP1/31 & TP1/38










HOBART, 6 June 1990








For the Hospital Employees
Federation of Australia,
Tasmania Branch

- Mr R Warwick



For the Federated Clerks Union
of Australia, Tasmanian Branch

- Mr D J Fry






27 October 1989
7 December 1989
13 March 1990



These two matters are references pursuant to Section 63(10)(b) of the Act and both concern objections by the Hospital Employees Federation of Australia, Tasmania Branch (HEF) to the Federated Clerks Union of Australia, Tasmanian Branch (FCU) having a registered interest in the Welfare and Voluntary Agencies Award (WAVA) and the Medical Practitioners (Private Sector) Award.

Because it was mutually convenient to do so, both matters were heard together.

Section 63(10)(c) of the Act provides that:

"(c) that Commissioner shall determine which awards the organisation has an interest in by satisfying himself that:

(i) the membership of the organisation 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 organisation's rules or constitution a copy of which has been lodged with the Registrar pursuant to subsection (1); and

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

The FCU made claim to the fact that its membership includes persons covered by both awards, and that membership is consistent with that organisation's rules and constitutional coverage.

And the HEF did not seriously contest either position. Rather it argued that the HEF had been the most dominant and active union in both areas, and particularly so in relation to the WAVA Award.

Mr Warwick for the HEF also sought to demonstrate that there need only be one union with a registered interest in the awards concerned. He did so by producing a copy of correspondence between the HEF and such bodies as the ACTU; The Federal Department of Community Services and Health and the State Department of Community Services; together with a copy of HEF news bulletin, and Decision T No. 1794 of 1988 of Commissioner Gozzi regarding the WAVA Award. Each of these exhibits related to various industrial issues such as wage rates and occupational superannuation as well as the question of the level of funding for certain welfare institutions in which the HEF claimed to have played a major part.

None of these facts were contested by the FCU, and in fact it freely acknowledged the bona fides of the HEF and the work which it had done.

However the HEF went on to argue that there need be only one union with an interest in the awards concerned, and that it is more than capable of representing the employees subject to each award.

Some emphasis was also given to the bipartisan approach which the HEF had taken with the Tasmanian Confederation of Industries (TCI) in making representations to the Department of Community Services and others to ensure adequate funding, and to thus allow proper wage claims to be met.

Mr Warwick said a special "Funding of Disability Service Committee" was established and such bipartisanship is a "unique approach and a non-confrontationist approach". He conceded however, that in a more general sense the HEF is not always disposed to be non-confrontationist.

The HEF claimed some credit for the fact that pending increased funding to certain employees covered by the WAVA Award it had supported the deferral of a $10.00 per week wage increase to save the jobs of employees as well as to permit the continuance of services to clients.

Mr Warwick advanced as a further reason for its objection to the granting of award interest to the FCU the general principle that the number of organisations in an industry and an award should be strictly limited. He relied upon an extract of an ACTU document titled "Future Strategies for the Trade Union Movement" to support the case for denying the FCU award interest as consistent with this new principle. And more particularly Mr Warwick relied upon point 5.1.10 of that document, appearing at page 13, which contained a list of 18 broad industry categories into which it was suggested most unions could fit. Number 17 on the list is the "Health Industry" and number 15 is "Retail and Clerical". From this Mr Warwick commented as follows at page 19 of transcript:

"It is clearly the intention of the authors of this document and the ACTU which had adopted it as policy, that there be eighteen industry unions with certain subsections in Australia in the future.

I might simply point out to you, sir, that the fifteenth proposed union is the "retail and clerical union." The seventeenth proposed union is a "health industry union."

It is our view that the people in question clearly fall within the parameters of what has been proposed in respect of the health industry. They do not fall within the parameters of what has been proposed for the retail and clerical industry."

Mr Warwick also sought to take some comfort from a newspaper report contained in the Examiner of 29th February 1990 in which it was reported that the Minister for Industrial Relations had made a speech to the Tasmanian Industrial Relations Society in which he stated it is Government policy to encourage bigger and fewer unions in line with ACTU policy.

Mr Fry for the FCU responding to the objector by acknowledging that the HEF has been the more active union in servicing persons employed under the terms of the WAVA and Medical Practitioners (Private Sector) Awards.

He declared however that the FCU has clear constitutional right to enrol clerical workers and has members who are employed under both awards. Over the years the FCU has enrolled persons employed under both awards concerned when approached, because it cannot refuse membership under its constitution. And it would not be in their best interest, or within public interest, for clerical workers to be denied the right to join.

The FCU wants only to maintain the present status quo and has already advised the HEF in writing that it is not seeking to encroach into this particular area, or compete with the HEF in either award. A copy of the letter from the FCU to the HEF dated 31 October 1989 in this regard was tabled as an exhibit.

In addition to stating that it did not intend to actively recruit in either award area, the letter pointed out that the FCU had earlier this year run a case before the Commission for a member involving a redundancy claim. This established some "history" it was claimed.

Mr Fry said it is not the intention of the FCU to in any way change what has been a very harmonious relationship between itself and the HEF for a very long period of time.

So far as the relevance of ACTU policy is concerned in relation to these two matters, Mr Fry said he believed the HEF was drawing a rather long bow in the sweeping statements it had made in this regard. He said that if anyone believes that the FCU is going to finish up in one single industry group, "then that is a fight that has yet to be run".

Reference was made to the fact that at present the FCU has members in a wide range of areas such as textile, clothing and footwear, shipping, rail and tramways, road transport, the food industry, the airline industry and the oil industry.

More particularly the FCU is already well entrenched in the so called "health industry" and has exclusive rights to people who are employees of various medical funds, such as MBF and St Lukes.

Section 63(10)(c) of the Act requires the Commission to be satisfied that the three criteria stipulated have been met.

The FCU has testified to the fact that it has both membership and constitutional right of coverage to clerical workers covered by both the WAVA and Medical Practitioners (Private Sector) Awards.

The FCU is a registered organisation and a copy of its rules have been lodged with the Commission.

In the face of these facts the HEF did not seriously challenge either of these criteria.

I am satisfied on the material before me that there is sufficient to satisfy the requirement of Section 63(10)(c)(i) and (ii) of the Act.

The remaining third criteria stipulated falls under 63(10)(c)(iii), ie.:

"An organisation being granted an interest in an award or awards would not prejudice the orderly conduct of industrial relations in Tasmania".

The HEF went to some lengths to establish its own credentials and successfully demonstrated its predominance in actively servicing the WAVA Award in particular, but also the Medical Practitioners (Private Sector) Award. However, since its pre-eminence in this regard is not threatened because the FCU has not actively recruited in the past and has given a written assurance not to disturb the status quo in the future, I can only conclude that 63(10)(c)(iii) has not been fully understood by the HEF.

In selectively quoting from the ACTU document titled "Future Strategies for a Trade Union Movement" the HEF produced only part of the document.

From the little which was produced it would seem, just from the title, that the future strategies are intended for the union movement itself, and not necessarily for arbitrary determination by tribunals, especially in matters which are contested before a single member. This conclusion would appear to be born out by the following quote from 5.1.10 of the document, inter alia:

"The solution seems obvious: Unions need to amalgamate in order to form larger, more efficient, unitsl The most appropriate bases for each rationalisation appear to be broad industry categories. For example most existing unions could fit in the following categories: ..."

(underlining mine)

If the ACTU, or its State Branch the TTLC, had intervened to press its policy before this Commission it would have perhaps been a different matter, but they did not do so and in the circumstances this aspect of the argument is not persuasive.

Similarly the reported statement of the Minister for Industrial Relations regarding Government policy ought not influence an independent and impartial tribunal in applying the terms of an Act of Parliament. It needs to be clearly understood that the Commission is not an arm of Government.

For all of these reasons I am satisfied that the FCU application meets all of the requirements of Section 63(10)(c) of the Act and I dismiss the objections of the HEF.

Accordingly I determine that the Federated Clerks Union of Australia, Tasmanian Branch, shall have an interest in the following awards:

1. Welfare and Voluntary Agencies Award,

2. Medical Practitioners (Private Sector) Award.

The granting of such interest is, however, qualified to the extent that the FCU abide by its undertaking contained in its letter to the HEF dated 31/10/89. Shortly stated the FCU has undertaken not to actively recruit in the area concerned, but will simply maintain "constitutional" rights.

The file is now returned to the Registrar.

Operative Date

The decision shall have effect on and from the 6th day of June 1990.

The Orders giving effect to award variations are attached.


A Robinson