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Tasmanian Industrial Commission

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T4190

 

TASMANIAN INDUSTRIAL COMMISSION

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

Registrar
(T.4190 of 1992)

Construction, Forestry, Mining and Energy Union,
Tasmanian Branch

ROADMAKERS AWARD

 

COMMISSIONER GOZZI

HOBART, 11 April 1995

Award interest

REASONS FOR DECISION

In December 1992 the Construction, Forestry, Mining and Energy Union, Tasmanian Branch (CFMEU) requested the Registrar to initiate processes aimed at including the Roadmakers Award on its certificate of registration. Accordingly the Registrar made application to the President pursuant to Section 65A(1) of the Act for leave to recall the certificate of registration of the union on the ground that the organisation had an interest in the Roadmakers Award. The President subsequently referred the file to Commissioner Imlach for hearing and determination. Proceedings were commenced by Commissioner Imlach in January 1993. He acceded to the request of the parties to enter into discussions with the view of them reaching agreement on the application and he therefore adjourned the matter sine die.

Consequential to a general change in award assignments by the President the Roadmakers Award was allocated to me. In the event I relisted the matter in July 1994 to ascertain the status of the application for determination of interest of the CFMEU in the award. On that occasion and again in August 1994 proceedings were adjourned at the request of the parties with the objective of them achieving a negotiated outcome. This was not successful and accordingly the matter was brought on for hearing and determination in November 1994. The purpose of the hearing was to ascertain whether or not, having regard to Section 63(10)(c)(i)(ii) and (iii) of the Act, the union should be granted an interest in the Roadmakers Award.

By way of further background the amalgamation of the Construction, Forestry and Mining Employees Union, The Federated Engine Drivers' and Firemen's Association of Australasia and The Operative Plasterers and Plaster Workers' Federation of Australia was approved by the Australian Industrial Relations Commission effective from 23 September 1992. Consequentially the Registrar of the Tasmanian Industrial Commission acting on the request of the CFMEU cancelled the registration of The Federated Engine Drivers' and Firemen's Association of Australasia, Tasmanian Branch (FEDFA) and The Operative Plasterers and Plaster Workers Federation of Australia, Tasmanian Branch. At the same time the Registrar effected the change of name of the Construction, Forestry and Mining Employees Union, Tasmanian Branch to the Construction, Forestry, Mining and Energy Union, Tasmanian Branch.

In the ensuing proceedings the determination of interest in the award in favour of the CFMEU was opposed by The AWU-FIME Amalgamated Union, Tasmanian Branch (AWU-FIME). Mr Bodkin appearing for the CFMEU submitted that the Commission should apply the normal tests set out in Section 63(10)(c)(i)(ii) and (iii) of the Act. Having regard to the criteria for determination of award interest contained in that section I indicate at the outset that on the material presented to the Commission I am satisfied that the CFMEU has members subject to the award and that its membership is consistent with its rules. In this matter the only question to be answered is whether or not the inclusion of the CFMEU in the award by granting it an interest would impact adversely on the orderly conduct of industrial relations in Tasmania. In that regard the AWU-FIME expressed a desire to discuss with the CFMEU arrangements concerning the work that members of the respective organisations would undertake (Transcript p.23). Unfortunately discussions between the organisations on avoiding demarcation disputes in the industry failed notwithstanding the proposed agreement between them which contemplated no active attempt on both sides to recruit members in civil construction. The qualification provided by the CFMEU was that if an existing worker in the industry wished to join the CFMEU of his or her own free will that person would not be turned away. Whilst non-unionists would be sought to be actively recruited by the CFMEU, Mr Bodkin submitted that this was the antithesis of actively recruiting members and would not be prejudicial to the orderly conduct of industrial relations.

Mr Bodkin stressed that the FEDFA was a previous party to the award and at the time of the amalgamation the Act simply did not make adequate provision for amalgamating organisations as it now did with the commencement of Section 67A. It was submitted that the CFMEU should not now be disadvantaged because the legislative framework was not in place in the Act which protected the interests of amalgamating organisations. Mr Bodkin also argued that interest of the CFMEU in the Roadmakers Award would "actually promote" (Transcript p.33) the orderly conduct of industrial relations in the industry. This was said to be because of the central role played by the CFMEU on a national basis in award restructuring. Mr Bodkin said that the focus of that involvement was to move away from a narrow task-based system of remuneration to a broader competency-based system of classifying and remunerating workers. Mr Bodkin referred the Commission to federal proceedings in the National Building and Construction Industry Award where the AWU-FIME supported the submissions of the CFMEU in respect of classifications, structure and relativities. He contended that this demonstrated that the AWU-FIME supported the concepts put forward by the CFMEU in respect of award restructuring. The proposition was put by the CFMEU that the AWU-FIME would have to produce very good reasons that the CFMEU's interest in the award would prejudice the orderly conduct of industrial relations in Tasmania. Mr Bodkin said:

"The simple fact is that there has been a very satisfactory record on the part of the preamalgamating unions which now make up the CFMEU."

(Transcript p.36)

Mr Bodkin also informed the Commission that it was a mystery why the FEDFA disappeared from the award 2 of 1994 when it was previously in the award. It was pointed out that no opportunity was given to the amalgamated organisation to be heard as provided for by Section 65A.

In his submissions Mr Cooper for the AWU-FIME confirmed that there had been no "major demarcation disputes in the State of Tasmania in respect to civil construction" (Transcript p.43). Mr Cooper said that this was because of national agreements registered on behalf of The Australian Workers' Union (AWU) and the unions subject to the amalgamation resulting in the CFMEU. Those agreements identified or more precisely demarked specific jobs which would be more difficult to do given restructuring of classifications and structures. Mr Cooper submitted that the FEDFA previously covered, in the main, plant operators and that coverage would be extended given the make up of the CFMEU. It was said by Mr Cooper that this would result in competition for members and that this would not serve the interests of Tasmania in respect of the orderly conduct of industrial relations. Reference was made by Mr Cooper to C No. 2703 of 1983 where a Federal Appeal Bench discussed competing claims which had manifested between the BLF and the AWU.

With regard to amalgamating unions not being disadvantaged Mr Cooper referred to Commissioner Watling's decision in T.3036 of 1991 where the Commissioner refused an interest to the Federation of Industrial Manufacturing and Engineering Employees, Tasmania Branch (FIMEE) in the Tasmanian Government Departments (Mechanical and Electrical) Engineering Award. In that matter the Commissioner found that the union had no automatic right to interest in that award because an amalgamation had occurred. Mr Cooper submitted that FIMEE was not able to satisfy the Commission that the work subject to the award would be demarked in such a way as to not adversely impact on the orderly conduct of industrial relations. Mr Cooper said that the decision of Commissioner Watling was even more significant because it was upheld in appeal proceedings. The point was made by Mr Cooper that in the current matter the CFMEU and the AWU-FIME were not able to reach an agreement on which of the organisations would cover which work. Mr Cooper reiterated that the CFMEU intended to enrol non-unionists in the industry and that it would actively seek to recruit them. He said that this was not a suitable way to conduct recruiting in the civil construction industry.

Finding:

As previously indicated there is no doubt in my mind that the CFMEU satisfied the requirements of Section 63(10)(c)(i) and (ii) relating to membership and constitutional capacity to enrol members and provide coverage for them in circumstances where they are employed subject to the Roadmakers Award. The only issue relates to the orderly conduct of industrial relations in Tasmania. Having regard to the submissions made by Mr Cooper for the AWU-FIME I was not satisfied that the presence of the CFMEU in the award would impact adversely on industrial relations notwithstanding that it has wider constitutional capacity than that held previously by the FEDFA. The role of the CFMEU in award restructuring at the national level where the AWU-FIME supported proposals advanced by the CFMEU is evidence of the positive role played by it. There is nothing before me to suggest that the same positive outcomes would not be able to be achieved under a State award. It is purely speculative on the part of the AWU-FIME that somehow the orderly conduct of industrial relations would be prejudiced if the CFMEU were granted an interest in the Roadmakers Award. I do not see it that way and indeed competition for new members not previously members of either union should be assessed on the basis of CFMEU assurances that it will be passive in respect of existing AWU-FIME members. In all of the circumstances the CFMEU is granted an interest in the award. A copy of this determination has been forwarded to the Registrar. A hearing in respect of matter T.4189 of 1992 - the variation of the Roadmakers Award to include the CFMEU in the Parties and Persons Bound Clause has been set down for 10.30am on 9 May 1995.

 

R.K. Gozzi
COMMISSIONER

Appearances:
Mr W. Bodkin with Ms D. Moncrieff for the Construction, Forestry, Mining and Energy Union, Tasmanian Branch.
Mr G. Cooper for the The AWU-FIME Amalgamated Union, Tasmania Branch.

Date and Place of Hearing:
1993.
Hobart:
January 14
1994.
Hobart:
July 7
August 23
November 14