PR955207

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The attached document replaces the document previously issued with the above code on 24 January 2005. A citation error in paragraph [79] has been corrected.

Michelle Carey

Associate to Senior Deputy President Lacy

Dated 3 February 2005.

PR955207

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996

s.204 application for alteration of eligibility rule of organisation

Application by CPSU, the Community and Public Sector Union

(D2003/3)

SENIOR DEPUTY PRESIDENT LACY

MELBOURNE, 24 JANUARY 2005

Eligibility for membership - alteration of rules - privatisation of governmental functions - objections of organisations settled by undertakings and amended application - employer notice of objection out of time - extension of time in which to lodge objections - terms of rule alteration ambiguous and uncertain - inconsistency between terms and purpose of rule - modification of rule to conform with purpose - conveniently belong - effectively represent - public interest.

DECISION

Introduction

[1] On 11 February 2003 the CPSU, Community and Public Sector Union (CPSU) lodged in the Australian Industrial Registry an application for consent to an alteration of its eligibility rules. The application was made under s.204(1) of the Workplace Relations Act 1996 (WR Act).

[2] The CPSU, by its application, sought to alter the eligibility rules by inserting the following new sub-rules:

[3] The CPSU stated its reason for the proposed alteration in the following terms:

[4] The effect of the proposed alteration was said to be:

[5] In providing details concerning compliance with the rule altering procedure, the statement of David John Carey, Joint National Secretary of the CPSU, declared the process undertaken by the CPSU in relation to the proposed alteration and that, as a fact, the Union had complied with the rules. He detailed the steps taken as follows:

Administrative process

[6] The application was gazetted in the Commonwealth of Australia Gazette No. GN 8 on 26 February 2003.

[7] The period for objections to the alteration closed on 2 April 2003. Five objections were received within the prescribed time. The objectors were:

[8] During the afternoon of 2 April 2003, Mr G Haros of Freehills, solicitors for Tenix Solutions Pty Ltd (Tenix) contacted the Statutory Services Branch of the Australian Industrial Registry by telephone to register an objection on behalf of Tenix. Mr Haros subsequently confirmed by email the intention of Tenix to lodge an objection to CPSU's application, and that the appropriate notice and accompanying written statement would be lodged as a matter of urgency. On 10 April 2003 an objection on behalf of Tenix was received in the Registry. The notice of objection was deficient in that it was not signed, as required by the former regulation 51(3)(c), by the person seeking to object.

[9] As the Tenix objection was lodged out of time, the Registry did not notify it of the apparent deficiencies in its objection.

[10] The matter was listed for mention and programming before me on 5 May 2003. Mr Perica appeared on behalf of the CPSU and submitted that discussions had commenced with most objectors and requested an adjournment for six weeks to continue discussions and negotiations with the objectors. Tenix appeared in the hearing on 5 May 2003 and requested an extension of time for lodgement of its objection. I reserved the extension of time question and adjourned the matter by consent of all parties. The matter was subsequently listed for progress reports on 17 June and 7 August 2003.

[11] At the progress report listing on 7 August, Mr Perica tendered an amended proposed rule alteration.1 The amended rule alteration was intended to accommodate the objections of the union parties other than the ASU. The LHMU confirmed that it had settled its objection with CPSU and withdrew its objection.2 The NTEU, AEU and CEPU withdrew their objections following CPSU's tender of the amended rule alteration.3 The CPSU amended application sought consent to the following alteration:

[12] The portion quoted in bold type represents the change effected by the amendment to the original application.

[13] There were progress reports on negotiations between CPSU and the remaining objectors on 19 September and 24 November 2003. The parties resolved to stand the matter down until early 2004 to allow further discussions between the CPSU, ASU and Tenix. An adjournment was granted by consent of the parties.

[14] The matter was listed for conciliation conference and programming on 6 February 2004. There was a further conciliation conference between the CPSU and Tenix on 5 April 2004, and a further conference listed for 7 May 2004. Following the conference on 7 May, amended hearing dates were fixed and directions issued requiring submissions to be filed in the Commission.

[15] The CPSU and ASU reached an in principle agreement on 7 June 2004. As a result, the ASU did not file submissions but Mr Nucifora appeared briefly to formally tender a Memorandum of Agreement between the CPSU and ASU signed on 16 June 20044. The remaining objector was Tenix. The matter was heard on 19, 20 and 23 July 2004. Both the CPSU and Tenix filed submissions and called witnesses in the hearing. Mr Perica appeared on behalf of the CPSU and Mr Forbes of counsel appeared by leave for Tenix.

Legislative Framework

[16] The Workplace Relations Legislation Amendment (Registration and Accountability of Organisations) (Consequential Provisions) Act 2002 came into force from 12 May 2003. It amended the WR Act by repealing s.204 and inserting Schedule 1B - Registration and Accountability of Organisations. Section 5 of Schedule 1B deals with transitional arrangements. Relevantly for present purposes s.5 provides as follows:

[17] As appears from the above excerpt an application made before 12 May 2003, as was the one presently under consideration, but not yet determined, is to be considered and determined under the WR Act as in force prior to that date. Accordingly all further references to the WR Act and regulations in these reasons for decision are to be read as references to the WR Act and regulations as in force immediately before 12 May 2003.

[18] Section 204 of the WR Act, prior to the amendments of the Workplace Relations Legislation Amendment (Registration and Accountability of Organisations) Act 2002 provided:

Extension of time for the filing of the Tenix objection

[19] The time for objections closed on 2 April 2003. Tenix filed its objection and accompanying written statement in support on 10 April 2003, that is some 43 days after gazettal of the proposed change. Under regulation 51(1) of the Workplace Relations Regulations objections must be lodged in the Registry within 35 days of the Gazette notification of the application. The objection filed also did not conform with the regulations. Regulations 51(3) and 51(4) relevantly provided as follows:

[20] The Tenix objection lodged on 10 April 2003 was eight days out of time. The notice of objection was signed but not by the person whose statement accompanied the notice of objection. The statement was that of the person said to be objecting. The relevant regulations are mandatory in terms. As a general rule an application that fails to comply with a mandatory requirement in a statutory provision is invalid.5 Consequently the objection lodged on 10 April was not a valid objection.

[21] The deficiency in the objection was raised in the mention hearing on 5 May 2003. Mr Haros of counsel, appearing by leave for Tenix, undertook to have the notice of objection and written statement of Mr Robert Law filed in the Commission in due course. Those documents were filed in the Commission on 6 May 2003. Thus the Tenix objection was filed effectively 34 days late.

[22] Tenix did not concede that its objection was defective, but sought an extension of time under s.111(1)(r) of the Act in which to lodge its objection in the event that it was late. In support of the application for an extension of time it was submitted on behalf of Tenix that:

[23] The CPSU opposed the grant of an extension of time to Tenix in which to lodge its objection. Mr Perica, while conceding the CPSU has suffered no prejudice as a result of the delay in Tenix filing a valid objection, opposed the grant of an extension on the following grounds:

[24] It seems to me that the requirement for compliance with statutory time limits, mandatory in their terms, ought to be strictly observed. That is particularly so in a jurisdiction in which the loss or prejudice suffered as a result of delay caused by failure to comply with the stipulated time limits cannot be compensated by an award of costs against the recalcitrant party. It is not in the interest of equity or justice that an innocent party, or innocent parties, should bear the burden of delay occasioned by the indolence or negligence of a person who claims to have a valuable interest but has been dilatory in prosecuting the claim. That said, it remains the case that the Commission does have a very broad discretion to extend any prescribed time and the discretion cannot be constrained by any inflexible rule of procedure.

[25] A discretion conferred by statute must be exercised in accordance with the purposes for which it is conferred and in conformity with the statute itself and, more particularly, its objects. The governing principle under s.111(1)(r) of the WR Act, in respect of the discretion to extend prescribed time limits, must be equity, good conscience and the merits of the case.

[26] In the instant case the CPSU properly conceded that it suffered no prejudice as a result of Tenix filing its objection late. There were, after all, the objections of five other interested parties to be resolved. CPSU did have notice of the interests of Tenix on the last day for filing objections. On the first listing day, CPSU required an adjournment to negotiate and conciliate its differences with the other valid objectors in any event. There is no suggestion that CPSU would have taken a different course but for the fact that Tenix did not file its objection on time.

[27] Tenix said it did not know of the proposed rule alteration until the due date for objections. I am not satisfied that Tenix had a reasonable explanation for its delay in giving notice of its objection. However, it clearly has a direct interest in the matter given the object of the proposed alteration and the implications that it will or may have for Tenix if granted. It seems to me that, given the absence of prejudice to CPSU, its objective, and the direct interest of Tenix in the matter, the interests of equity and justice are best served by granting to Tenix an extension of time to file its objection. It is also relevant that I must satisfy myself of the matters that Tenix raises in its objection, independently of the objection. Accordingly, I extend the time for Tenix to file its notice of objection to 6 May 2004.

Submissions

Tenix

[28] The grounds of Tenix's objection, as set out in the notice of objection filed by Mr Robert Law, stated:

[29] The primary submission of Tenix is that the application of the CPSU for alteration to its eligibility rules should not be consented to under s.204 of the WR Act. Alternatively, it should be dismissed under the general power in s.111(1)(g) of the WR Act. Tenix relies on the grounds set out in its notice of objection and submitted that:

[30] Tenix argued, in the alternative, that, in the event that the Commission is minded to consent to an alteration, it may do so in whole or in part. It submitted that there is power to approve or consent to rules in part, or modify them, if that be the desirable course. This is such a case, Tenix submitted, and, if any consent is to be given, it should be limited to:

[31] A further alternative submission advanced by Tenix was to the effect that if the Commission is inclined to go beyond coverage of the three areas listed in the preceding paragraph, the extension of the rule should go no further than an extension to cover the positions and classifications demarked to the CPSU under the agreement that it has made with the ASU in settlement of its objection to the proposed rule alteration.

CPSU

[32] CPSU contended that the purpose of the rule alteration is to follow, service and protect its traditional membership base. The relevant class of employees are those engaged in functions usually carried on by the State. That is presently the case, the CPSU contended, in every State other than the State of Victoria. It was the case also in the State of Victoria until recently when the functions were outsourced or contracted out to be performed by private enterprise. The employees engaged in the functions now undertaken by Tenix in Victoria, or some of them, were and are members of CPSU. As such CPSU seeks to legitimise its coverage of the relevant class of employees engaged in the previously performed State functions when performed by private entrepreneurs such as Tenix or any other entrepreneur. There is no other organisation to which the relevant class of employees could more conveniently belong or that would more effectively represent the class.

Issues

[33] Three critical issues arise for determination on the basis of the cases as they were advanced by Tenix and CPSU in the course of the hearing before me. The first issue relates to the comparative capacity of the CPSU in respect of membership and their representation. The second issue is related to the first and that is whether the proposed rule is ambiguous or likely to create confusion or uncertainty about the class that will become eligible for membership of the CPSU as a result of the change. Finally, there is a question of the potential for demarcation disputes and the disruption that such disputes would cause in the business conducted by Tenix.

Evidence

[34] Tenix called, as witnesses in its case, Neil Hyde, its General Operations Manager (Australia and New Zealand), Robert Law, its Human Resources Manager, and Anthony Kierwood. Mr Kierwood's evidence was confined to the issue of notification and late lodgement of Tenix objections. Each of Messrs Hyde and Law was cross-examined on their evidence. Following is a brief summary of the undisputed facts disclosed by the evidence of Messrs Hyde and Law.

[35] Tenix is part of the Tenix Group and is a wholly owned subsidiary of the parent company, Tenix Pty Ltd. It operates businesses in Australia and New Zealand. The core business of Tenix involves the provision of traffic infringement processing for Victorian Government agencies and a number of local councils. The work that Tenix is contracted to perform for the State of Victoria is traffic regulation and includes mobile and fixed camera detection, verification of photographs, processing of infringement notices, a call centre to deal with customers and payments, and assistance with enforcement and collections. Until 1998 the work that Tenix now undertakes in traffic regulation was performed by public servants in the public sector of the State of Victoria.

[36] Most of Tenix's 450 employees are based at 120 Spencer Street. The exceptions to this are:

[37] The vast majority of the work performed by Tenix employees is clerical and administrative in character. The base skills required of such employees includes assessing visual information on a computer screen, entering information into a database, customer interface, use of phones and computers and other technologies. Tenix also engages technical staff to operate speed cameras and for radio operations.

[38] The remainder of the relevant evidence of Messrs Hyde and Law was contentious. Tenix employees are moved between departments according to business requirements. In this regard I note that it was the unchallenged evidence of Mr Law that flexibility in utilisation of staff is fundamental to the success of the Tenix business.

[39] In his evidence in chief, Mr Law said that ASU has been active in seeking to recruit members in the Tenix business. In cross-examination however, he readily conceded that Tenix has had more dealings with CPSU than it has had with ASU on employee issues in its traffic infringement business. Although he expressed concern about the possibility of demarcation disputes if consent is given to the proposed rule alteration, he conceded that demarcation disputes were no more than a possibility. He was unaware of any demarcation dispute between the CPSU and the ASU in the past 20 years and could not recall any specific demarcation dispute in the white collar industry generally.

[40] Each of Messrs Hyde and Law expressed opinions about the convenience of its employees belonging to ASU and about the capacity of CPSU to adequately represent the relevant class of employees that the CPSU is seeking to cover by its rule alteration. I am not satisfied that Mr Hyde or Mr Law is qualified to give opinions on the subjects of convenience of belonging to one or the other organisations or their comparative capacities to represent the relevant class. Accordingly little weight is given to their evidence in this regard.

[41] CPSU called seven witnesses in support of its case. The witnesses were:

Name

Position

John Nucifora

National Industrial Officer, ASU

David Carey

Joint National Secretary, CPSU/Federal Secretary, State Public Services Federation Group (SPSF)

Diane Burton

Communications Officer, Tenix

Emily Castle

Industrial Officer, CPSU

Keith Humphrey

Former Speed Camera Operator, Tenix

Stephen Oakenfeld

Speed Camera Operator, Tenix

Susan McCallum

Speed Camera Operator, Tenix

[42] It is not proposed to deal in detail with all the evidence of the witnesses called by CPSU at this juncture. It is appropriate that I set out a summary of the more general aspects of their evidence now and deal with the specifics in the context of my determination.

[43] Mr Nucifora gave evidence to the effect that, since the early 1990s, there have been issues about representative coverage between the ASU and CPSU with some potential for disputation. The main issues derive from privatisation of governmental functions. The ASU and the CPSU have worked constructively over time to resolve coverage issues that have arisen between them. According to Mr Nucifora the relationship between the two organisations overall is positive and constructive.8 The cooperative spirit is said to be evident also in the fact that ASU and CPSU members work side by side in the Australian Public Service without incident. Mr Nucifora said he is unaware of any conflict between the CPSU and the ASU that has led to disputes that have impacted adversely on private or public sector employers.9

[44] In cross-examination Mr Nucifora agreed that the ASU has coverage for the largest number of private sector clerical and administrative employees. He said that, the ASU, by its objection, was seeking to protect its coverage in the private sector of clerical and administrative employees. Cross-examined further in that regard Mr Nucifora said that, while he regards the CPSU rule alteration, in terms, an encroachment into ASU's area of coverage, it was not regarded as a threat. This is because the CPSU was not seeking to extend its coverage, but rather to follow its membership base in the transfer of public sector work to the private sector.10

[45] Mr Carey in his written statement, gave an account of the creation of the CPSU, the history of the State Public Services Federation and its constituent elements and the capacity of the organisation to deliver services to members through the constituent elements. None of his statement in that regard was challenged and may be accepted. It was his uncontested evidence also that the CPSU, with 180,000 members, covers more clerical and administrative workers than any other union, including clerical workers in the private sector.

[46] According to Mr Carey the CPSU, Australia wide, has the most members employed in clerical and administrative functions related to traffic law infringements from detection to prosecution. In this regard Mr Carey gave detailed evidence about the arrangements for traffic law infringement work in each of the States of New South Wales, Queensland, South Australia, Tasmania and Western Australia, none of which was challenged. The evidence was probative of the fact that the CPSU, through its constituent parts, covered the work now sought to be covered, as it is performed in the States that are identified in this paragraph.

[47] It was also Mr Carey's unchallenged evidence that the CPSU is party to a number of awards and certified agreements that are applicable in the private sector.

[48] In his evidence, both in chief and in cross-examination, Mr Carey acknowledged the fact of past demarcation disputes between CPSU and ASU. However, he said, none of the disputes has resulted in days lost or disruption at the workplace. He gave evidence to the effect that demarcation issues between CPSU and ASU generally are resolved amicably and cooperatively.11

[49] Mr Carey was cross-examined extensively about the meaning and intent of the proposed rule. I do not pause to record all of his evidence in that regard. Suffice to say that his evidence is not entirely inconsistent with the stated intent accompanying the application with such necessary modification as is necessary to accommodate the amendments that have been made so as to delineate and isolate the interests of the ASU and the other organisations that have withdrawn their objections.

[50] Ms Castle in her evidence said she was responsible for organising the workers employed by Tenix. The CPSU had 25 members employed by Tenix. The Victorian Branch CPSU-SPSF Group (Branch) has about 13,000 members working in Victorian public sector employment, statutory authorities, higher education and, to a more limited extent, within a range of private sector employment.

[51] According to Ms Castle's unchallenged evidence the Branch:

[52] Ms Castle also gave a detailed account of the history of the organisation and the structure and operations of the speed camera and sheriff support groups, including the CPSU involvement with employees engaged in such operations. Her evidence in that regard was not seriously challenged.

[53] Each of Ms Burton and Messrs Humphrey and Oakenfeld gave evidence about their role and functions in speed camera operations. Ms McCallum gave evidence to similar effect and said that she contacted the CPSU in late 2001 for assistance following difficulties she encountered in negotiating a workplace agreement with Mr Law. In cross-examination Ms McCallum maintained that Mr Law had suggested to her that she engage a professional negotiator for the purpose of resolving the issues about her workplace agreement. Such was the motivation for her enlisting the support of the CPSU in 2001.

Determination

Compliance with rule altering procedure

[54] It is a requirement of s.204(2) of the WR Act that I be satisfied that the alteration of the eligibility rules was made under the rules of the CPSU. Tenix did not take issue with any particular aspect of the CPSU complying with its rules in effecting the proposed alteration to its eligibility rule. In any event I am satisfied, on the material before me, that the alterations have been made in accordance with the rules of the CPSU and in conformity with the WR Act and the Regulations.

Tenix objections

[55] Tenix raised a number of grounds of objection to consent being given to the CPSU alteration to its eligibility rules. The formal grounds of objection as disclosed by Tenix's notice of objection are five in number and are set out in [28] above. I need not repeat them here.

[56] In articulating its objections Tenix submitted that consent to the rule alteration ought to be refused. In the alternative, Tenix submitted that, if consent is to be granted, it ought to be granted in part only, so as to confine the extension in the CPSU coverage to either of the two groups that can be identified as:

[57] The argument advanced by Tenix fundamentally revolves around three propositions:

The first two of the three propositions involve a legal question to be solved by legal considerations.15 The other propositions involves matters going to the exercise of the discretion. I consider each of these propositions in turn.

No other organisation test

[58] Determining who constitutes the relevant class of employees, for the purposes of comparisons of convenience and capacity as between organisations, involves ascertaining the scope of the pre-existing rules of the applicant organisation and the scope of the alteration. The exercise entails construction of the pre-existing eligibility rules and the alterations as if they formed part of the those rules.16

[59] Mr Forbes on behalf of Tenix properly conceded that the words of the rule itself is the starting point in ascertaining the class that would become eligible for membership of the applicant union as a consequence of consent to the rule alteration. Nonetheless an eligibility rule should not be construed narrowly or technically and resort may be had to extrinsic material where there is ambiguity or lack of clarity. The approach to be taken to construction of eligibility rules is aptly summarised by the Full Court of the Federal Court in Transport Workers' Union of Australia v Serco Australia Pty Ltd:17

[60] The eligibility rules of the CPSU are respectively rules 2 and 3. Each of rules 2 and 3 is in four parts and runs to almost 103 pages in total. Part I of the eligibility rules deals with employment associated with the Commonwealth, the Northern Territory and the Australian Capital Territory. Part II of the same rules deals with State associated employment. Part III is concerned with the eligibility of certain classes of contractors and Part IV is to the effect that the restrictions and limitations in Parts I and II of each of the eligibility and industry rules are mutually exclusive.

[61] The eligibility rules of the CPSU were the subject of consideration in the Full Bench decision in CPSU, the Community and Public Sector Union v EDS Australia and IBM Global Services Australia.18 In the course of its considerations the Full Bench observed:

[62] Rules 2 and 3 do not appear to be any less complex in October 2004 than was rule 2 in October 2003 when it was considered by the Full Bench. The rules, in so far as they relate to eligibility and industry, would benefit from rationalisation. However that may be it does not relieve me of the obligation to construe the rules in order to ascertain the relevant class of employees who would be eligible for membership if consent is given to the alteration.

[63] Part I of rule 2 makes eligible for membership of the CPSU persons employed by, for, or in or on behalf of the Commonwealth, the Northern Territory, the Australian Capital Territory, bodies or entities constituted by or under legislation of any of those three legislatures and bodies that are wholly or substantially financed by the Commonwealth, the Northern Territory or the Australian Capital Territory. Part I of the rule includes and excludes as a description of eligible persons various designations and occupational groups that come within areas of industry or services in which the Commonwealth or the territories generally are engaged.

[64] Part II of rule 2 is concerned with the eligibility of persons employed in the service of the Crown, statutory bodies, instrumentalities or authorities in the States or any of the States of Australia. It is that Part of the Rules with which the current application is concerned and to which I will return in due course.

[65] Part III of rule 2 makes eligible for membership of the CPSU certain classes of independent contractors. Part IV of rule 2 records that Parts I and II of rule 2 are mutually exclusive in terms of limitations or restrictions and each is to be read independently of the other. Specifically, it provides as follows:

[66] Part I of rule 3 almost parallels Part I of rule 2 in so far as it specifies as industries the public services and institutions and other bodies that are financed or controlled by the Commonwealth, the Northern Territory or the Australian Capital Territory. Part II of rule 3 similarly parallels Part II of rule 2 in defining the relevant industries, in effect, as State public services and institutions and other bodies that are financed or controlled by the States. Parts III and IV of rule 3, like the corresponding Parts in rule 2, respectively relate to independent contractors and limitation of the restrictions in Parts I and II of rule 3 being confined in their operation to their respective Parts.

[67] The alteration for which consent is sought in this case directly affects Parts II of both rules 2 and 3. Those Parts deal specifically with eligibility and industry in the States. Part II of rules 2 and 3 respectively is divided into four sections.

[68] Section 1 of Part II of rule 2 is further divided into divisions A to H. Divisions A and B are concerned generally with eligibility of employees employed by:

in or in connection with a number of specified industries and industrial pursuits.

[69] Division C of Section 1 of Part II of rule 2 makes eligible for membership certain officers of the CPSU. Division D is concerned specifically with employees of the State of New South Wales, including entities employing persons on behalf of the State of New South Wales. Division E relates to employment by, for, in or on behalf of the State of South Australia and Division F similarly relates to Tasmania. The State of Victoria is the province of Division G of Section 1 of Part II of rule 2 and is the specific part of the rule that is the subject of the application for alteration. Division H is concerned with the State of Western Australia.

[70] Section II of Part II of rule 2 applies in the States of New South Wales and Queensland. Section III applies to several named universities and other tertiary institutions throughout Australia. Section IV is concerned with persons employed in or in connection with the administration of certain superannuation schemes.

[71] It is appropriate that I set out in full the terms of the relevant portion of the rules, namely Division G of Section 1 of Part II of Chapter A of rule 2 as if the alterations formed part of the rules. Division B(4) of Section 1 of Part II of Chapter A is the relevant portion of rule 3.

[72] The relevant portion of Rule 3 is, for all intents and purposes, in identical terms and it is unnecessary to repeat it here.

[73] The class of employees eligible for membership under the existing eligibility rules is, in broad terms, dental therapists and employees of the State of Victoria, in its various emanations, and of other specified authorities and entities that have succeeded to functions formerly performed by the State, other than persons employed in privately operated correction facilities in administrative and clerical positions and prisoner transport or as managers, teachers and nurses. The rule alteration would extend eligibility for membership of the CPSU to employees, other than certain electrical, educational and local government workers, of another entity or other entities undertaking or contracted to undertake traffic regulation and court process functions formerly performed by the State of Victoria.

[74] The extended class of employees who would be eligible as a result of the alteration, may be defined as all employees of any entity responsible for traffic regulation and other court processes in the State of Victoria, other than those employees employed in electrical/electronic work in manufacture, maintenance and service of equipment, education institutions or as teachers or teachers' aides in detention centres or correctional facilities or those employed or engaged in local government traffic regulation.

[75] The question is whether the class, as defined in the preceding paragraph, lacks clarity and, if not, whether it might more conveniently belong or be more effectively represented by an organisation other than the CPSU. Tenix argued that the class cannot be ascertained with so much certainty and, if it could, its constituency cannot be ascertained. To the extent that it can be ascertained, it contended, the ASU is an organisation to which the relevant class might more conveniently belong or which might more effectively represent their interests.

[76] In my view there is no difficulty, on the evidence as it stands, in ascertaining the relevant constituency for the purposes of the comparisons that must be made. Tenix provides a range of services covering all aspects of traffic enforcement management.20 It does so on contract to the Government of the State of Victoria and for local councils. Its employees, other than those engaged in local government work, would fall within the relevant class. In the event that Tenix expanded its interests to other business undertakings that were not in or in connection with traffic management or other court processes as defined, the employees engaged in those interests would fall within the class and be eligible for membership of the CPSU also. So much, it seems, might be an unintended consequence of the terms of the proposed alteration and reflects an apparent inconsistency between the stated purpose of the alteration and its effect. Inconsistency is a matter to which I now turn.

Inconsistency between rule and purpose

[77] The argument on inconsistency, as advanced by Tenix, is to the effect that the CPSU submissions and evidence about the purpose for which the eligibility rules are being altered is in conflict with the plain words of the rule itself. Tenix contended that the words of the rules themselves extend far beyond the purpose for which the CPSU seeks to make its rule alteration and, moreover, the words of the application are ambiguous, misleading, confusing and vague. The resultant confusion and ambiguity, Tenix contended, make it difficult, if not impossible, to identify the relevant class of employees who would become eligible as a result of the change.

[78] Tenix submitted that there is conflict in the evidence about the purpose for which the rule is to be altered. However, so the argument goes, to the extent that any clear purpose could be ascertained from the evidence it is that the rule is to cover no more than work which was performed by public servants where those public servants have been transferred from the public sector to Tenix and now perform the same work as they had performed for or on behalf of the State. By way of contrast, Mr Forbes argued, a potential member or any reasonable person reading the rule itself would understand it as covering employees engaged to perform work for any employer that undertakes any work in connection with those functions. The only statement of purpose that paralleled the terms of the rule itself, Tenix contended, was that made by Mr Perica in his submissions on behalf of CPSU.

[79] The constitutional rules of organisations registered under the WR Act play an important role in determining and understanding their operational capacity. It is necessary therefore that, so far as possible, the rules be clear and unambiguous. For the most part the interpretation of rules of organisations involves a liberal construction. The relevant principles are summarised by the High Court in Re Williams; Ex parte Australian Building Construction Employees' and Builders' Labourers' Federation,21 in the following terms:

[80] The rule here under consideration is confined in its operation to the State of Victoria. The discrimen or criterion that determines the broad parameters of the class that would be eligible for membership, if the alteration were made, is the entity that undertakes work in or in connection with traffic regulation and other court related processes. Having defined the broad parameters of the class by reference to what might be described as the employer's undertaking the rule then limits the class by the exclusion of certain occupational groups and institutions. It seems to me that there can be little confusion about the relevant class and I reject the contentions of Tenix to the contrary.

[81] The rule itself does not define the nature of the work that those belonging to the eligible class would be required to perform. Mr Carey was cross-examined at length about the type of employment the members of the relevant class would perform. He described the work that the employees would be undertaking as:

[82] Later in his evidence in cross-examination Mr Carey made the following statement:

[83] In its submissions Tenix argued that the proposed rule alteration by its terms goes further than was its intended scope. It argued, by way of example, that any person employed in a law firm who seeks to enforce the civil court orders, or any person engaged within a debt collection agency, would be eligible for membership of CPSU under the terms of the proposed rule. While I am satisfied that the rule alteration will not have the reach that Tenix suggests, I am satisfied that the rule alteration does go further than its intended scope.

[84] It is clear from Mr Carey's evidence that the rule alteration was intended to cover no more than the class of employees that was associated with the traffic and other legal process functions that are, or previously were, the province of the State Government of Victoria in any of the forms described in paragraph (a) of rule 2, Part II, Section 1. The alteration no doubt achieves that object. However, it would make eligible for membership the class of employees whose only qualification would be engagement to perform work for an entity undertaking or contracted to undertake the work in or in connection with the relevant functions of Government irrespective of the identity and the scope of the nature of the work in which the entity was otherwise engaged. The CPSU would be, in effect, an enterprise union, subject only to the limitations included in the proviso to the alteration. To that extent there is, as Tenix contends, an apparent inconsistency between the stated object of the rule change and its effect in its application. I so find.

[85] The inconsistency to which I refer in the preceding paragraph is not necessarily fatal to the application. Provided the relevant class of persons that would be made eligible for membership of the CPSU is capable of identification with some precision the relevant comparisons could still be made for the purposes of s.204(4) of the WR Act. The definition of the class is sufficiently clear in my opinion. The question is whether consent ought to be granted to the whole of the rule change when there is evidence to show that in its application it exceeds the stated expectations of the organisation.

[86] It was the evidence of Mr Hyde, which I accept, that Tenix is interested in seeking overseas and interstate contracts and, accordingly, it is possible the nature and structure of the business will change dramatically.26 Tenix is in a high growth period and it is looking for greater fluidity in its workforce. To that end it is intended to cross-train employees to achieve greater flexibility in assignment of employee roles.27 In any event the evidence does not show that Tenix will always be solely responsible for the relevant functions. Any other entity that assumes responsibility for the functions, or some of them, need not incorporate those functions as its core business. In the circumstances it is reasonable to infer that it is more probable than not that Tenix, and any other entity which undertakes or is contracted to the Victorian Government to undertake the functions here under consideration, will not necessarily restrict itself to the conduct of those functions alone.

[87] The collateral or other functions in which Tenix, or of any other entity that undertakes the relevant governmental functions, may engage, is not capable of identification or specific definition. However that may be, it is not a circumstance that changes the nature of the class of persons who would be eligible for membership of the CPSU if the rule alteration were granted. The class would still be constituted by those persons who perform work for the particular entity, albeit work that was not in or in connection with the traffic regulation and other legal process functions. According to Mr Carey, that is not a circumstance or a purpose contemplated by the CPSU in seeking consent to the rule alteration. The effect of the proposed alteration would be much broader than was intended.

[88] The evidence does identify precisely the class that the CPSU intended to cover. However, the class is broader than the CPSU intended it to be. Section 204(2) of the WR Act confers on a designated Presidential Member a discretionary power to consent to a rule alteration in whole or in part. As Mr Forbes on behalf of Tenix quite properly conceded, it has long been accepted that the power to consent in whole or in part enables the repository of the power to deal with objections by modifying the alteration so as to limit its scope. The modification may be achieved either by excising text or by redrafting the alteration to the rule to reduce its scope. The question then is whether the rule alteration is susceptible to consent in part in accordance with those principles so as to give effect to its intended purpose and, if so, whether the Commission ought to lend its support in that regard. It is to those issues that I now turn.

Modification of rule alteration

[89] Tenix submitted that, in the event that I was minded to consent to the rule alteration, the consent should limit the operation of the rule to Mobile Camera Operators and employees in the Traffic Camera Operator Support Group at Tullamarine and the Sheriff Communications Unit at Oakleigh. Tenix argued that the work of that class of employees was of a technical character and that a distinction ought to be drawn between that type of work and the general clerical administrative work that is performed by the vast majority of employees of Tenix. I am satisfied however, that the reach of the CPSU eligibility rules is far more extensive in their coverage of the employees of the Crown in the right of the State of Victoria in their involvement in the functions here under consideration than the class to which Tenix suggests the rule alteration should be limited.

[90] The CPSU has members who are employed as clerical and administrative workers in detection, prosecution and enforcement of laws other than traffic infringement within the Departments of Justice, Consumer Affairs, Natural Resources and Environment and the Victoria Police. So much is evident from Ms Castle's uncontested evidence in that regard.

[91] I am satisfied that the CPSU covers more clerical and administrative workers, including workers involved in clerical and administrative work associated with traffic regulation functions, than any other union. Prior to the Victorian Government contracting out traffic regulation in the State of Victoria, some, at least, of the associated clerical and administrative functions, were performed by workers who were eligible for membership of the CPSU. It would appear that the only logical reason for excluding the CPSU from coverage of such employees is its historical nexus with public sector employment and the potential for overlapping coverage with the ASU, a matter to which I return in due course. Mr Law gave evidence to the effect that Tenix did not wish to deal with the CPSU.28 That in itself is not a proper basis for refusing the CPSU the capacity to cover the relevant class of Tenix employees.

[92] Given that there is inconsistency between the terms of the rule as amended and the objectives of the CPSU, what formulation or modification is appropriate to give effect to its objective. In my view, the following formulation would give effect to the purpose that the CPSU was seeking to achieve by altering its rules:

[93] A rule alteration in the terms set out in the preceding paragraph would make eligible for membership of the CPSU all employees employed in or in connection with traffic regulation and other court processes when employed by entities undertaking or contracted to undertake those functions for the State of Victoria. The formulation avoids the prospect of eligibility extending to persons engaged in law firms unless the law firm was undertaking or contracted to the State of Victoria to undertake the relevant functions. It also avoids the prospect of eligibility for membership extending to all the employees of an entity that are not engaged in or in connection with the relevant functions. On these bases it seems to me that, subject to the modified rule meeting the requirements of comparative convenience and the exercise of my discretion and, in particular, considerations of public interest, the rule in its modified form is unobjectionable. I turn to consider those issues.

[94] The rule alteration, as modified, will reduce the class that was comprehended in the amended CPSU application. The CPSU will have nonetheless, constitutional capacity to enrol clerical and administrative employees engaged in or in connection with the relevant functions. That is an advantage it currently enjoys under the existing rules in any event. Subject to what follows I see no reason to limit its capacity in that regard.

Comparative convenience and capacity

[95] As previously noted in these reasons for decision the ASU was an objector to the application being granted by way of consent. Its objection was resolved by a written agreement between it and the CPSU which resulted in an amendment to the CPSU application to exclude from its proposed eligibility that class of employees that would be eligible for membership because of employment in local government traffic regulation.

[96] Mr Nucifora, speaking as a representative of the ASU, gave evidence in these proceedings. While it reasonably may be inferred that some members of the relevant class could conveniently belong to the ASU there was no evidence before me to the effect that it might be more convenient for any of the relevant class to belong to the ASU. Members of the relevant class sought the assistance of the CPSU in their quest for better working conditions. The CPSU readily provided that assistance. The members of the class that sought the assistance of the CPSU have persisted in their engagement of the CPSU in resolving their workplace issues. There is no evidence that any of them were given encouragement by the ASU or any other member of the relevant class to seek out the assistance of the ASU as a more convenient source of membership and the benefits thereof.

[97] There is no evidence upon which I can safely conclude that the organisation and structure of the ASU or any other organisation might make it as convenient or more convenient for members of the relevant class to belong to the ASU or any other organisation besides the CPSU. There is evidence upon which I can be and am satisfied that the organisation and structure of the CPSU meets the convenience for membership of the relevant class.

[98] I am satisfied that there is no other organisation apart from the CPSU to which the relevant class might more conveniently belong.

[99] The evidence before me does not demonstrate that the ASU might more effectively represent the relevant class. I am cognisant of the breadth of the ASU's knowledge and experience in representing the industrial interests of clerical and administrative workers and to that extent I am prepared to assume its capacity to represent the relevant class, at least to the extent of its inclusion of clerical and administrative workers. However, it is clear on the evidence of the support and representation the CPSU has given to the relevant class that the CPSU is, as a fact, more effective in representing the interests of the relevant class. I am not satisfied that the ASU might more effectively represent the interests of the relevant class. There is no evidence to suggest that any other organisation might more effectively represent the interests of the relevant class.

[100] I move now to consider the discretionary issues that have been raised.

Discretionary matters

[101] Tenix submitted that the scope of my discretion is conditioned by the relevant grounds of objection. The issues that need to be addressed, Tenix contended, include the extent of any advantage or benefit occasioned by the rule alteration for the employees who fall within the relevant class, the potential for disputation and demarcation, the desire of the employer to negotiate with a single union instead of two, the changing nature of the business of Tenix and the objects of the WR Act, in particular, the extent to which the CPSU has limited itself in its capacity to represent the interests of all members of the relevant class.

[102] According to Mr Forbes the rule alteration would provide no tangible advantage or benefit for the relevant class of employees. I reject the proposition. I accept the submissions made on behalf of the CPSU, to the effect that the CPSU has extensive coverage of employees engaged in traffic regulation in every State of Australia where the functions are performed by the State Governments. It had similar coverage in Victoria until the functions were contracted out to private enterprise. While the ASU has some shared industrial coverage in State run traffic regulation businesses, the area of work in which the relevant class of employees engage is an area with which the CPSU, rather than the ASU, has the greater experience. It is more likely than not that the CPSU is better able to assess the needs of the relevant class of employees and, accordingly, gauge the genuineness and weight of any industrial claims or matters that the relevant employees wish to press or have pressed on their behalf.

[103] There is overlapping coverage by the CPSU and the ASU. Potential for disputation or demarcation between the CPSU and the ASU is a possibility, but not a probability as a matter of historical fact. Thus, while demarcation cannot be ruled out entirely, it is, in my view, unlikely. In any event I am satisfied that the CPSU and the ASU have made adequate arrangements to deal with any potential disputation between them. I am persuaded to this view after listening to and seeing Messrs Carey and Nucifora give their evidence in this matter and by the terms of the agreement between the two organisations.29

[104] It may be that the employer's views as to the number of bargaining units in its workplace are a relevant consideration in determining whether to consent to a rule alteration that will extend the number of organisations with capacity to bargain in the particular workplace. However, as Mr Forbes rightly conceded, it is not determinative of the issue. The evidence in this case suggests that the CPSU has been more active than the ASU in pressing and negotiating claims on behalf of the relevant class of employees. While I give weight to the concerns of Tenix in this regard it is not sufficient in itself to persuade me to exercise the discretion to withhold my consent to the alteration.

[105] Any evidence of the changing nature of the business of Tenix and its requirement for flexibility are relevant matters to weigh in the balance. There is limited evidence in this regard. True it is that the organisational structure of Tenix has changed over time.30 It is apparent that its core function is traffic enforcement management,31 but, apart from the evidence of some undefined intent, there is no other evidence of any more expansive business venture or operation in which Tenix is now engaged or will be engaged in the foreseeable future. I am not persuaded to refuse my consent on the basis of a mere statement of intent. In any event the alteration to which I will consent should remove any apprehension that Tenix has in this regard.

[106] The CPSU and the ASU have given mutual undertakings in the form of a written agreement in which each party acknowledges the industrial interests of the other and agrees not to enrol or recruit employees from the designated functional areas in which the others' industrial interests reside within Tenix. The arrangement, Tenix argued, limits the capacity of CPSU to represent all members of the class that fall within the rule alteration. This will cause confusion and disputation between the organisations and the persons who will be eligible for membership of the CPSU. It seems to me with the acceptance of overlapping organisational coverage, within the legislation and other decisions of this Commission, it makes good industrial sense to have mutual undertakings or understandings between organisations to avert or avoid tension over enrolment or recruiting issues.

[107] To the extent that the CPSU has limited its own capacity to enrol or recruit employees of the relevant class it has done so in a manner in which it seeks to express the intentions it had in relation to the application of the rule alteration. The formulation of the rule alteration that I propose will overcome much of the perceived difficulty about which Tenix is apprehensive. In the circumstances there is little scope, in my view, for confusion or disputation.

Conclusion

[108] Having regard to the foregoing, and all of the material now before me, I am satisfied that the alterations have been made in accordance with the rules of CPSU and in conformity with the requirements of the WR Act and Regulations.

[109] I therefore consent to the amendments to the eligibility rules of CPSU in the terms set out in paragraph [92] above. The alterations to which I have consented shall come into effect on 31 January 2005 and shall be as set out in the Annexure to this decision.

BY THE COMMISSION:

SENIOR DEPUTY PRESIDENT

Appearances:

Mr M. Perica on behalf of CPSU, the Community and Public Sector Union.

Mr J. Nucifora on behalf of Australian Municipal, Administrative, Clerical and Services Union.

Mr R. Solomon on behalf of National Tertiary Education Industry Union.

Ms R. Frenzel on behalf of Liquor, Hospitality and Miscellaneous Union.

Ms L. Gale on behalf of Australian Education Union.

Mr G. Haros and Mr J. Forbes of counsel on behalf of Tenix Solutions Pty Ltd.

Hearing details:

2003.

Melbourne.

May 5.

June 17.

August 7.

September 19.

November 24.

2004.

Melbourne.

February 6.

April 5.

May 7.

July 19, 20 and 23.

Printed by authority of the Commonwealth Government Printer

<Price code G>

ANNEXURE

CHAPTER A

RULE 2

PART II

SECTION 1 (G):

(f) Employees engaged to perform work in or in connection with traffic law detection, prosecution and enforcement, court or warrant enforcement, or the collection or enforcement of other criminal or civil court orders not related to traffic law infringement, by any person, corporation or business entity, that undertakes, or is contracted to the Government of the State of Victoria to undertake such work.

CHAPTER A

RULE 3

PART II

SECTION 1

Subsection (B)

Subsection (4):

(e) Employees engaged to perform work in or in connection with traffic law detection, prosecution and enforcement, court or warrant enforcement, or the collection or enforcement of other criminal or civil court orders not related to traffic law infringement, by any person, corporation or business entity, that undertakes, or is contracted to the Government of the State of Victoria to undertake such work.

1 Exhibit CPSU 2.

2 Transcript, PN118.

3 Exhibit CPSU 1.

4 Exhibit CPSU 2.

5 In the Matter of an application for an election inquiry under Part IX of the Conciliation and Arbitration Act 1904 in the Amalgamated Metal Workers and Shipwrights Union by Shahid Naqvi (1982) 2 IR 174 and cases cited therein.

6 Exhibit Tenix 5 at 45.

7 Exhibit Tenix 4.

8 Exhibit CPSU-3, para 2-3.

9 ibid, para 9.

10 Transcript, PN325-PN351.

11 see Exhibit CPSU-5.

12 Transcript, PN2160.

13 Exhibit CPSU-2.

14 Transcript, PN2166.

15 Re Australian Workers' Union, Ex parte Construction, Forestry, Mining and Energy Union (2002) 120 FCR 527; 114 IR 185.

16 Re Australian Workers' Union, Ex parte Construction, Forestry, Mining and Energy Union (2002) 120 FCR 527, [44].

17 (1996) 67 IR 28.

18 PR939419; (2003) 129 IR 7.

19 ibid, [9].

20 see Exhibit "CPSU-19".

21 (1983) 153 CLR 402.

22 ibid, at 408.

23 Transcript, PN565-PN567.

24 ibid, PN581.

25 ibid, PN583.

26 Exhibit Tenix-4, [52].

27 ibid, [50].

28 Transcript, PN1797, PN1830.

29 see Exhibit "CPSU-5", para. 25 - 27, Attachment DC-5.

30 see Exhibits "CPSU-17" and "CPSU-18".

31 see Exhibit "CPSU-19".