Awu v Psa & Anor [2006] NSWIRComm 369 (29 November 2006)

Last Updated: 30 November 2006

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : AWU v PSA & Anor [2006] NSWIRComm 369



FILE NUMBER(S): IRC 3277 of 2006
IRC 3282

HEARING DATE(S): Written submissions

DECISION DATE: 29/11/2006
PARTIES:
APPLICANT/RESPONDENT:
The Australian Workers' Union, New South Wales

RESPONDENT/APPLICANT:
Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales

SECOND RESPONDENT:
Department of Environment and Conservation

JUDGMENT OF: Wright J President Walton J Vice-President Macdonald C


LEGAL REPRESENTATIVES

APPLICANT/RESPONDENT:
Mr R Tripodi of counsel
Mr J Clements
The Australian Workers' Union, NSW
RESPONDENT/APPLICANT:
Mr A Hatcher of counsel
Solicitor: Ms A McRobert
W G McNally Jones Staff Lawyers

SECOND RESPONDENT:
Mr S Prince of counsel
Ms E Krynda
The Department of Environment and Conservation


CASES CITED: Crown Employees (National Parks and Wildlife Service) Field Officers and Skilled Trades 2000 Award [2006] NSWIRComm 278

LEGISLATION CITED:



JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

FULL BENCH

CORAM: WRIGHT J, President
WALTON J, Vice-President
MACDONALD C

Wednesday 29 November 2006

Matter No IRC 3277 of 2006

THE AUSTRALIAN WORKERS' UNION, NEW SOUTH WALES v PUBLIC SERVICE ASSOCIATION AND PROFESSIONAL OFFICERS' ASSOCIATION AMALGAMATED UNION OF NEW SOUTH WALES AND ANOTHER

Application by The Australian Workers’ Union, New South Wales for orders of demarcation pursuant to section 294 of the Industrial Relations Act 1996

Matter No IRC 3282 of 2006

PUBLIC SERVICE ASSOCIATION AND PROFESSIONAL OFFICERS' ASSOCIATION AMALGAMATED UNION OF NEW SOUTH WALES v THE AUSTRALIAN WORKERS' UNION, NEW SOUTH WALES

Application by Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales for orders of demarcation pursuant to section 295 of the Industrial Relations Act 1996

DECISION OF THE COMMISSION
[2006] NSWIRComm 369

1 These proceedings originate from an application by the Public Employment Office (“the PEO”) filed on 22 December 2005 (in Matter No IRC 6781 of 2005) to create a new award, with the consent of the Australian Workers' Union, New South Wales (“the AWU”), to cover field officers employed by the Department of Environment and Conservation. Most field officers are represented by the AWU although in a particular sector they are represented by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("the PSA").

2 That application has, to date, been attended by procedural complications as outlined by the Full Bench in its interlocutory decision given on 4 September 2006 in Crown Employees (National Parks and Wildlife Service) Field Officers and Skilled Trades 2000 Award [2006] NSWIRComm 278. In that decision, the Full Bench directed the AWU to file a demarcation application and the PSA to file any cross-application concerning the subject demarcation issues, which they have now done.

3 However, given the nature of the demarcation applications filed, it is necessary to consider whether the Commission should accede to the AWU's motion that the two applications should be heard separately given the scope of the PSA's application. For the reasons we shall now provide, we are satisfied that the applications as filed should be heard separately.

4 The decision of the Full Bench of 4 September 2006 (at [9]) was very clear in its direction for the parties to file demarcation applications addressing the issue in dispute, namely "... the representational interests with respect to the group of employees the subject of the contested award ...".

5 It is equally plain that the PSA, possibly for tactical or other reasons, has brought a demarcation application of a much broader kind than directed by the Full Bench. That application raises issues going well beyond the subject dispute. We consider that the PSA's application raises a case of significantly different proportions involving much broader interests and possibly different industrial issues.

6 Accordingly, we do not propose to allow the PSA application to be heard, in its present form, at the same time as the AWU's application as:

(a) it is directly inconsistent with the Full Bench's determination as to how the issue in the present dispute was to be addressed;

(b) the PSA's application, in its present form, has the very real potential to significantly alter the nature, character and length of the proceedings which, given the consequent likely additional time required, has the potential to cause real prejudice to the subject employees in terms of their ultimate award entitlements; and

(c) there are real doubts as to the appropriateness of the current demarcation dispute being used as a vehicle to ventilate potentially sector-wide issues even assuming that they genuinely exist.

7 Nevertheless, we are prepared to allow the PSA, if it wishes, to bring a further demarcation application relating only to the employees the subject of the present dispute.

8 On this basis we make directions for the programming of the AWU's demarcation application as follows:

(a) the PSA shall file and serve any further or amended demarcation application (which is confined to the subject matter of the present dispute) within seven days of this decision, namely by 4pm on 6 December 2006; if such an application is filed it shall be joined to the proceedings in Matter No IRC 3277 of 2006 and be programmed in accordance with the following directions;

(b) Matter Nos IRC 3277 of 2006 (and, if applicable, the joined PSA application) shall be listed for hearing in 2007 and to be prepared in accordance with the following timetable:

(i) the AWU to file and serve its evidence (by affidavit) and contentions with respect to its application in Matter No IRC 3277 of 2006 by 4pm on 2 February 2007;

(ii) the PEO shall file and serve its evidence (by affidavit) and contentions in relation to Matter No IRC 3277 of 2006 by 4pm on 2 March 2007;

(iii) the PSA shall file and serve its evidence (by affidavit) and contentions in response to the application in Matter No IRC 3277 of 2006 and in support of any amended application by 4pm on 30 March 2007; and

(iv) the AWU shall file and serve any evidence (by affidavit) and contentions in reply by 4pm on 10 April 2007.

(c) We note that the matter is to be allocated to Deputy President Grayson for the hearing of the demarcation application or applications and for further directions. We contemplate that the matter will be fixed for hearing in April 2007 in accordance with the parties' estimates (3 to 4 days), but in such a manner that the hearing and determination of the matter be concluded as soon as practicable.

9 The Full Bench orders that Matter No IRC 3282 of 2006 be stood over pending the hearing and determination of Matter Nos IRC 6781 of 2005 and 3277 of 2006.

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LAST UPDATED: 29/11/2006