WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. Industrial Relations Act 1979. State Energy Commission of Western Australia (Applicant) and Australian Electrical, Electronics, Foundry and Engineering Union---Western Australian Branch and Others (Respondents ). No 1517 of 1993. BEFORE THE FULL BENCH HIS HONOUR THE PRESIDENT P J SHARKEY CHIEF COMMISSIONER W S COLEMAN COMMISSIONER R N GEORGE. 20 December 1994. Order. This matter having come on for hearing before the Full Bench on the 16th day of Decem ber 1994, and having heard Mr R D Alien (of Counsel) on behalf of the applicant, Mr D H Schapper (of Counsel) on behalf of The Australian Build- ers' Labourers' Federated Union ofWorkers--Western Aus- tralian Branch, The Operative Painters' and Decorators' Union of Australia--West Australian Branch, Union of Work- ers, The Operative Plasterers and Plaster Workers Federa- tion of Australia--(Industrial Union of Workers) Western Australian Branch (now registered as The Western Austral- ian Builders' Labourers, Painters and Plasterers Union of Workers) and The Construction, Mining, Energy, Timber- yards Sawmills and Woodworkers Union of Australia-- Western Australian Branch, Mr S O'Byrne on behalf of the Australian Electrical, Electronics, Foundry and Engineer- ing Union--{Western Australian Branch) and as agent for The Australian Liquor, Hospitality and Miscellaneous Work- ers Union of Australia, Miscellaneous Workers Division WA Branch, and Ms S F McGurk on behalf of the Metals and Engineering Workers' Union---Western Australian Branch as respondents, and there being no appearance by or on be- half of the Transport Workers' Union of Australia--Industrial Union of Workers, West- ern Australian Branch, and the Federated Liquor and Allied Industries Employees' Union of Australia--Westem Aus- tralian Branch, and the Plumbers and Gasfitters Employ- ees' Union of Australia, West Australian Branch, Industrial Union of Workers, and the parties herein who were repre- sented upon the hearing of this application having consented to the order herein and the Full Bench having detennined that its reasons for decision will issue at a future date, it is this day, the 20th day of December 1994, pursuant to s.72A ofthe Industrial Relations Act 1979 (as amended)("the Act"), ordered and declared as foJlows:- (I) Title This order shall be known as the State Energy Com- mission of Western Australia Demarcation Order 1994. (2) Background (a) In application No 1517 of 1993 SECWA sought orders under s.72A of the Act pro- viding for exclusive representation of vari- ous employees by the Australian Electrical, Electronics, Foundry and Engineering Un- ion (AEEFEU). In application C No 60345 of 1993 in the Australian Industrial Relations Commission SECWA has obtained interim orders under s.118A of the Industrial Rela- tions Act 1988 (Cth) providing for exclusive representation of various employees by the ASU. (b) SECWA is to be restructured into new Gas and Electricity Corporations on or about 1 January 1995. The s.72A and s.118A ap- plications are partly related to the restruc- turing ofSECWA. (c) The policy of the Australian Council of Trade Unions (ACTU) is that the CEPU (incorpo- rating the AEEFEU) and the ASU are prin- cipal unions within SECWA, and that the CFMEU (incorporating the CMEU), AFMEU (incorporating the MEWU) and the APESMA are significant unions. ACTU policy defines the rights under that policy of principal and significant unions. (d) SECWA, the AEEFEU, the ASU, CMEU and MEWU have consented to this order on the basis of the Heads of Agreement between the parties which is Exhibit 7 in these pro- ceedings. In particular, the CMEU and the MEWU as significant unions under ACTU policy have only accepted the removal of their respective representative rights under the Act on the basis of the agency agreement with the AEEFEU, which is Attachment A and fonns part of this order. (3) Definitions For the purpose of this order the following defini- tions shall apply: (a) "Act" means the Western Australian Indus- trial Relations Act 1979; (b) "AEEFEU" means the Australian Electrical, Electronics, Foundry and Engineering Un- ion; . (c) "AFMEU" means the Automotive, Food, Metals and Engineering Union; (d) "APESMA" means the Association of Pro- fessional Engineers, Scientists and Manag- ers, Australia; (e) "ASU" means the Australian Municipal, Ad- ministrative, Clerical and Services Union; (t) "CEPU" means the Communications, Elec- trical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; (g) "CFMEU" means the Construction, Forestry, Mining and Energy Union; (h) "CMEU" means the Construction, Mining, Energy, Timberyards, Sawmills and Wood- 378 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 75 W.A.I.G. workers Union of Workers Western Austral- ian Branch; (i) "Electricity Corporation" means the body es- tablished as one of the successor organisa- tions to SECWA on I January 1995 pursuant to the Electricity Corporation Act (WA) 1994 and any successor, assignee or transmittee to the business or part of the business of the Electricity Corporation; (j) "Employees" means all those persons em- ployed by the SECWA, the Gas Corporation or the Electricity Corporation; (k) "Gas Corporation" means the body estab- lished as one of the successor organisations to SECWA on I January 1995 pursuant to the Gas Corporation Act (WA) 1994 and any successor, assignee or transmittee to the busi- ness or part of the business of the Gas Cor- poration; (I) "MEWU" means the Metals and Engineer- ing Workers' Union--Western Australian Branch; (m) "Respondent Union(s)" means one or all of those organisations of employees identified in Schedule A of this order; (n) "SECWA" means the State Energy Commis- sion of Western Australia and includes the Electricity Corporation and the Gas Corpo- ration. (4) Parties Bound This order is binding on the AEEFEU, the respond- ent Unions, the Gas Corporation, the Electricity Corporation and the SECWA. (5) Rescission and Supersession of other Demarcation Orders This order rescinds and supersedes all other de- marcation awards and orders which have applica- tion with respect to the employees as defined. (6) Representative Rights (a) The AEEFEU shall have the right, to the ex- clusion of the respondent unions, to repre- sent under the Act the industrial interests of all employees as defined who are engaged in the classes of work that the State Energy Commission of Western Australia Wages and Conditions Award covers or has historically covered excepting the following employees: (i) those employees as defined who are engaged in the classes of work that the State Energy Commission of Western Australia Salaried Officers Award 1989 (Print J2335) (S0217) of the Australian Industrial Relations Commission covers or historically has covered; and (ii) (iii) those employees as defined who are engaged in occupational health nurs- ing; and those employees as defined who are engaged in journalism or public rela- tions. (b) The respondent unions shall not have the right to represent under the Act the indus- trial interests of any of the employees as de- fined. (7) Operation and Term This order shall come into force on I January 1995 and shall remain in force for two years. (8) THAT pursuant to s.72A(6) of the Industrial Rela- tions Act 1979 (as amended) it is declared that the Full Bench is satisfied that the rules of the organi- sations covered namely the respondents hereto do not need to be altered. By the Full Bench [L.S] (Sgd.) P.J. SHARKEY, President. Schedule A. To Order No. 1517 of 1993. (a) Australian Electrical, Electronics, Foundry and En- gineering Union--Western Australian Branch, PO Box 359, Mt Hawthorn WA 6016. (b) Metals and Engineering Workers' Union--West- em Australia Branch, GPO Box J667, Perth WA 6001. (c) The Western Australian Builders' Labourers', Painters and Plasterers Union of Workers, 27-29 Moore Street, East Perth WA 6004. (d) The Federated Liquor and Miscellaneous Work- ers' Union of Australia-Western Australian Branch, PO Box 414, Subiaco WA 6008. (e) The Plumbers and Gas Fitters Employees' Union of Australia--Industrial Union of Workers, West- ern Australian Branch, PO Box 8125, Stirling Street, Perth WA 6004. (f) The Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers' Union of Australia-- Western Australian Branch, PO Box 8365, Stir- ling Street, Perth WA 6849. (g) Transport Workers' Union of AustraIia--1ndustrial Union of Workers, Western Australian Branch, PO Box 8498, Stirling Street, Perth WA 6849. Attachment "A" to Order No. 1517 of 1993. SECWA UNION RATIONALISATION Memorandum of Agreement between The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Western Australian Branch thereof and The Amalgamated Food, Metals and Engineering Union and the Western Australian Branch thereof, of the second part and The Construction, Forestry, Mining and Energy Union and the Western Australian Branch thereof, of the third part. WHEREAS the Communications, Electrical, Electronic, En- ergy, Information, Postal, Plumbing and Allied Services Un- ion of Australia ('CEPU') shall obtain the right of the industrial interests of the employees of the State Electricity Commission of the State Electricity Commission of West- ern Australia ('SECWA'), other than those employees cov- ered by the Australian Services Union (' ASU') under the Industrial Relations Act 1988. AND WHEREAS such representational rights shall be granted inter alia with the consent of the Amalgamated, Food, Metals and Engineering Union and the Western Australian Branch thereof (' AFMEU') the Construction, Forestry, Min- ing and Energy Union and the Western Australian Branch thereof ('CFMEU'). AND WHEREAS this agreement concerning the repre- sentation of industrial interests of employees of SECWA has been reached under the auspices of the Australian Council of Trade Unions (' ACTU'). THIS DEED WITNESSES that in consideration of the above premises and in consideration of each party's desire to serve the best interests of their respective memberships and that of the trade union movement generally. 75 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 379 IT IS AGREED between the CEPU, the AFMEU and the CFMEU as follows: I. The AFMEU and CFMEU each recognise the prin- cipal union status accorded to the CEPU (and ASU) by the ACTU. 2. The CEPU recognises the significant union status accorded to the AFMEU and the CFMEU by the ACTU. 3. The AFMEU and CFMEU each recognise and ac- cepts CEPU representation of the industrial inter- ests of members of the AFMEU and CFMEU, employees ofSECWA for all purposes. 4. The CEPU shall not prevent the AFMEU and the CFMEU from recruiting members from within the traditional areas of coverage of the AFMEU and the CFMEU, such areas of coverage being: • In the case of the AFMEU those areas speci- fied in Annexure 1. • In the case ofthe CFMEU those areas speci- fied in Annexure 2. 5. The AFMEU and CFMEU shall not prevent mem- bers falling within their traditional areas of cover- age voluntarily joining the CEPU. 6. Nothing in this agreement shall prevent the CEPU from enrolling as members, and representing the industrial interests of employees of SECWA in ac- cordance with the terms of section Il8A orders which are the attachments referred to in clause 2(a) of the SECWA Union Rationalisation Heads of Agreement. 7. Within a month of the date of this agreement, the CEPU shall, upon request (specifying the names of persons sought to be appointed), appoint in writ- ing as its agent for the purposes of representing members of the AFMEU and CFMEU consistent with the terms ofthe agency agreement, (Annexure 3 hereto) those officials of those organisations and such workplace delegates as may be agreed. 8. The CEPU will establish with the AFMEU and the CFMEU, appropriate consultative mechanisms regarding the operation of the single bargaining unit and in respect of all matters affecting members of the AFMEU and CFMEU (including consultation on the formulation and negotiations of award claims, and the resolution of grievances at the workplace level). In the event that the parties are unable to reach agreement on any such matter, the final determination of any such matter shall be made by decision of the members affected. 9. It is agreed by the CEPU, AFMEU and CFMEU that this agreement applies to employees ofSECWA and its successor corporations, and arises from the specific circumstances of the SECWA and does not constitute a precedent for any other area of their respective industrial activities. 10. The CEPU, AFMEU and CFMEU will develop a strategy to ensure the continued unionisation of SECWA. 11. This agreement shall be reviewed by the parties in May, 1997. IN WITNESS WHEREOF the parties hereto have hereunto affixed their hands and seals on the 9th day of September 1994. Signed and Sealed by: (Sgd.) P. TIGHE, The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. (Sgd.) D. CAMERON, The Amalgamated Food, Metals and Engineering Union. (Sgd.) J. MAITLAND, The Construction, Forestry, Mining and Energy Union. Annexure To Order No. 1517 of 1993. SECWA FUNCTIONS PER DIVISION BY AFMEU COVERAGE Function Electricity Expansion Gas Generation Supply Projects Blacksmith Bodymaker Boilermaker .. Fitter " Machinist-l st Class Machinist-2nd Class Mechanical Tradesperson Special Class .. Motor Mechanic .. Sheet Metal E'ee 1st Class Steam Cleaner Tyre and Tube Attendant Vehicle Greaser .. Welder I st Class .. '" .. .. .. " .. .. .. '" .. " .. " .. .. .. .. .. .. .. .. Annexure 2 To Order No. 1517 of 1993. SECWA FUNCTIONS PER DIVISION BY CFMEU COVERAGE Function Generation Electricity Expansion Gas Auxiliary Plant Attendant Boiler Controller Special--BPS Boiler Water Tester Boiler and Fuelling Attendant Bricklayer Bunker Attendant Carpenter Charge Engine Driver Cleaner (Country Power Stations) Coal Plant Operator Coal Sampler Crawler Tractor Driver Diesel Locomotive Driver Engine DriverO--IIMW Greasers LH3-IO Plant Cleaner Oil and Filter Seperater Attendant Operator-BPS Plant Cleaner Pneumatic Tyred Tractor Driver Scraper Operator Shunter Tippler Driver Turbine Driver Special BSP Unit Attendants .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. '" .. .. Supply Projects .. .. .. .. .. .. .. .. .. .. .. Annexure 3 To Order No. 1517 of 1993 TERMS OF AGENCY AGREEMENT The terms of the agency agreement to be entered into be- tween the CEPA! AEEFEU and AFMEU and CFMEU shall provide as follows; I. The relationship between the CEPU/AEEFEU and the officials/delegates concerned shall be one of principal and agent and shall be recorded in writ- ing. 2. A copy of the instrument of appointment of any agent shall be supplied to SECWA. 380 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 75 W.A.I.G. 3. The agency concerned shall be strictly limited to visiting and meeting with members and employ- ees who under this agreement may be recruited as members, the representation to the employer of members' grievances, including if necessary pro- ceedings before the Industrial Relations Commis- sion in unfair dismissal and similar proceedings, provided that any proceedings shall be commenced by and in the name of the CEPUI AEEFEU by the relevant official of the CEPUlAEEFEU. 4. No stoppage or imposition of any ban or limitation or any other form of industrial action shall be taken in the name ofthe CEPUI AEEFEU without the con- sent ofthe relevant official ofthe CEPUI AEEFEU. In the event that the calling of any stoppage or im- position of any ban or limitation or any other form of industrial action without the consent of the rel- evant official ofthe CEPUI AEEFEU results in any legal liability falling upon the CEPUI AEEFEU, the CFMEUlAFMEU shall indemnify the CEPUI AEEFEU for costs or damages incurred as a result of such action. 5. The CEPU/AEEFEU recognises that in order for this agency agreement to be effective the CEPUI AEEFEU will ensure that the AFMEU and the CFMEU have all relevant information concerning their respective members/classifications regardless of where such information originates. 6. The CEPUlAEEFEU will recognise and creden- tial any AFMEU and CFMEU delegate who has been elected in accordance with past practices and rules ofthe AFMEU or CFMEU. The AFMEU and the CFMEU recognise the right of the CEPUI AEEFEU to revoke the agency in respect of any named individual, in circumstances where the in- dividual breaches this agreement, provided that consultation with the appropriate branch secretary occurs and that a replacement agent shall be ap- pointed at the request of the relevant organisation. 7. Any dispute about the application of this agree- ment, including the revocation of any appointment of an agent shall, in the first instance be dealt with in accordance with a grievance procedure estab- lished by the parties for that purpose, and, in the event of a failure to resolve the dispute by this means, be referred to the ACTU for mediation. PRESIDENT- Matters dealt with-