T5249
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Australian Education Union, LIBRARIANS AND ARCHIVISTS AWARD
Award interest REASONS FOR DECISION In this matter the Australian Education Union, Tasmanian Branch (AEU) sought an interest in the Librarians and Archivists Award. The matter was initiated by the AEU pursuant to Section 65A(1) of the Act, the application being referred to me by the President for determination in accordance with Section 65A(2) of the Act. The background to the AEU seeking an interest in the Librarians and Archivists Award is that the Commission in its decision in T2417 of 1990 (the Special Case) et al dated 13 October 1994 deleted librarian classifications from the Technical and Further Education Staff Award and determined that the librarians in question should be classified instead in the Librarians and Archivists Award. Mr Evans for the AEU properly based his submissions on the requirements of Section 63(10)(c)(i)(ii) and (iii) of the Act. Those requirements are as follows:
In respect of subsection 63(10)(c)(i) going to demonstration of membership, Mr Evans tendered Exhibit AEU1 which was a collection of six documents individually signed by librarians who were subject to the Technical and Further Education Staff Award attesting that they are current members of the AEU and that they wished to remain as members of that union. Mr Evans tendered Exhibit AEU2 which was an extract from the AEU's registered rules filed with the Commission. He referred specifically to the following part of those rules:
Mr Evans submitted the foregoing rule demonstrated that the AEU could have as members and enrol as members employees in TAFE colleges who are under the control of the Government of Tasmania and who are employed in classifications incidental to education. It was the contention of Mr Evans that the librarians in question were not only in classifications incidental to teaching but that they were an integral part of that function. The Commission was also informed that whilst the AEU rules had been varied from those applicable to the TAFE Staff Society they nevertheless allowed the AEU to cover the librarians in this matter. It was emphasised by Mr Evans that the AEU rules were not drafted in such a way so as to permit the AEU to extend its coverage if it was to become a party to the Librarians and Archivists Award. It was submitted by Mr Evans that the wording in the rules specifying "incidental to education" precluded the AEU from having as members librarians other than those employed in schools, TAFE colleges, or those employed in a public educational setting. Mr Evans said that the rules did not enable coverage for persons employed in the State Library or in any other generalist department in the Tasmanian public sector. Accordingly Mr Evans contended that the view he had expressed should be of comfort to the State Public Services Federation Tasmania (SPSFT) in that there is no intention by the AEU to extend its coverage and that the AEU rules, in any event, did not permit this. Mr Evans submitted that the intention of the AEU was to follow its long standing members who were previously subject to the Technical and Further Education Staff Award into the Librarians and Archivists Award. In that regard, Mr Evans said, the AEU was seeking to do no more than maintain the status quo. Turning to subsection 63(10)(c)(iii) relating to the orderly conduct of industrial relations Mr Evans reiterated there would be no competition for members by the AEU. It was submitted by him that the AEU had served the librarians in question over a long period of time. He said that in pursuit of claims on their behalf the AEU had not prejudiced the orderly conduct of industrial relations. Mr Evans pointed to claims being brought before the Commission for determination where discussions with the employer failed to resolve issues. Ms Strugnell appearing for the SPSFT, whilst satisfied that the AEU has members subject to the award, submitted that Rule 4(8)(a) of the AEU's registered rules provided coverage for teachers and that reference to librarians was in the context of teacher-librarians only. It was the submission of Ms Strugnell that contrary to the AEU's contention that its coverage would not be extended if it was able to enrol TAFE librarians as members, that would indeed be the case. Ms Strugnell put to the Commission, in essence, that teacher-librarians were not librarians. She also submitted the reference in Rule 4(8)(a) to "any such other classification of employment incidental to education" could include State librarians. This is because State librarians are employed by the Department of Education and The Arts which is referred to in Rule 4(8)(a) and accordingly it could be said that those State librarians are in classifications incidental to teaching. I consider that this connotation by Ms Strugnell is going too far. The elaboration provided by Mr Evans that the Rule has to be read in its entirety is appropriate and this makes it clear, in my opinion, that State librarians would not be able to be enrolled by the AEU. Also the assurances by Mr Evans about this are on record and no evidence was put before the Commission that the AEU had sought to enrol as members the librarians referred to by Ms Strugnell. With regard to the orderly conduct of industrial relations the principle submissions of Ms Strugnell related to the possibility of Agency negotiations being complicated if the AEU was granted an interest in the award. Ms Strugnell made the point that librarians are employed in other departments apart from the Department of Education and The Arts and to open the award to the AEU could be prejudicial to the conduct of industrial relations. The Commission was referred by Ms Strugnell to what she termed a union conflict between the respective employee organisations in relation to progressing current State Wage Arrangements in the Department of Education and The Arts where both organisations have members and where both organisations are in the relevant award(s). Decision In this matter the AEU have satisfied the requirements of Section 63(10)(c)(i) and (ii). With regard to Section 63(10)(c)(iii) concerning the orderly conduct of industrial relations I have some residue concerns having regard to the submissions of Ms Strugnell. In particular I am concerned about the potential for conflict between the SPSFT and the AEU given that the AEU had in mind a totally different structure for TAFE librarians in the Special Case than what is in the Librarians and Archivists Award. On that point the AEU were not successful in convincing the Commission in the Special Case that it should adopt its structure for TAFE librarians. The question that arises and which was discussed by Ms Strugnell is whether the AEU would in pursuit of the industrial interests of its members prejudice the orderly conduct of industrial relations. The only example of some disharmony referred to by Ms Strugnell related to a hold up with progressing State Wage Arrangements and the potential for delaying Agency agreement bargaining. The potential for delay in respect of the AEU pursuing in Agency bargaining negotiation outcomes more in keeping with its aspirations for TAFE librarians as expressed in the Special Case may be real. However that does not give automatic rise to that prejudicing the orderly conduct of industrial relations. I do not consider that organisations in order to secure interest in an award need to put their "hand up" as a prerequisite to interest being granted to indicate that they will conform, in the pursuit of industrial objectives for their members, to some pre-determined outcome. That would deny an employee organisation to properly represent its membership in the manner it considered appropriate. I agree with Mr Evans that when considering the orderly conduct of industrial relations it is appropriate to have regard also to the historical industrial conduct of an organisation. In that regard the AEU's industrial conduct in respect of the librarians it wishes to represent in the Librarians and Archivists Award has been responsible. This Commission has been involved in dealing with TAFE librarian issues and in the pursuit of its objectives the AEU has not acted prejudicial to the orderly conduct of industrial relations. The point should also be made that in determining interest pursuant to the requirements of Section 63(10)(c)(i), (ii) and (iii) the issue of union rationalisation, per se, is not a consideration. In any event no submissions were made in that regard and in my opinion it would not be appropriate, therefore, to take this opportunity to impose what may be regarded by some as a legitimate structural efficiency measure. In all of the circumstances an interest in the Librarians and Archivists Award is granted to the Australian Education Union, Tasmanian Branch operative from the date of this decision. A copy of this determination has been forwarded to the Registrar pursuant to Section 63(12) of the Act.
R. K. GOZZI Appearances: Date and Place of Hearing: |